Tuesday, March 20, 2012
Laura L. Scarry
With the purchase of new products comes the related question of whether a police agency is charged with the responsibility of providing training to the law enforcement officer. If so, how much training is necessary before officers can use a new tool on a day-to-day basis? Can an agency be liable for failing to train its officers on a specific tool? If so, what’s required for liability to attach?
These are questions that officers and their supervisors ask on a regular basis, particularly when it comes to the hottest law enforcement gadgets. But, as described below, liability for failing to train officers is a tough case for plaintiffs to prove, even when the circumstances seemingly illustrate incompetence or negligence on behalf of officers. The following case illustrates this point.
Ellis v. Country Club Hills
In Ellis v. Country Club Hills,1 police officers received a report of a 911 call coming from the home of the Ellis family. The stepson of Bernard Ellis, the plaintiff in this civil case, called the police to report that Ellis was beating his mother.
Three officers arrived at the residence. Ellis greeted the officers and explained to them that his wife was having a sickle-cell anemia attack. The officers spoke to Ellis’ wife, who said that she was OK and that she hadn’t taken any medication for her condition. She refused the officers’ request for an ambulance. Thereafter, Ellis asked the officers to leave. The officers informed Ellis that they had called for an ambulance.
What transpired next is disputed. The plaintiff’s version of the events was essentially the following: One of the officers discharged his Taser causing the two probes to land in Ellis’ bicep. He was Tasered several more times, both before and after he fell to the ground on his chest.
After being handcuffed, an officer “unfolded” a three-foot long nightstick.2 The officer struck Ellis with the nightstick on his arm, back, leg, back of his neck, shoulder and the right rear of his head two to three times. One officer told another to Taser Ellis a few more times, which he did about four times on the neck, between his neck and head, right arm and his back.
Ellis was kicked in the groin two to three times and in the face three to four times, all while one of the officers watched and refused to respond to Ellis’ pleas for assistance. After carrying Ellis out of the bedroom and into another room, the officers “ran him into a wall” and kicked and struck him in the face and groin.3 The whole incident lasted approximately 15–20 minutes.
As a result, Ellis filed a civil rights lawsuit against the individual officers and the city alleging, among other things, that they violated his right to be free from excessive force under the Fourth Amendment. As to the city, Ellis claimed that it had failed to properly train its officers, which caused Ellis’ rights to be violated.
The City’s Training Program
A lieutenant testified that he and a sergeant were responsible for training officers on the use of the Taser. He testified that he was certified as a Taser instructor after completing eight hours of training and passing a 25-question test. The training that the city’s police officers receive included a PowerPoint presentation, drills and a discussion of fact patterns dealing with the use of the Taser. This training was also eight hours long and resulted in a written exam.
The evidence demonstrated that the city had a written policy regarding the use of the Taser. The policy prohibited the use of force as a punitive measure and forbade aiming the Taser at a person’s eyes, face or neck. The policy didn’t direct officers as to a maximum number of times the Taser could be used on an offender. However, each discharge was to be documented and investigated.
The lieutenant in charge of training testified that he instructed officers to announce the use of the Taser prior to firing. He also stated that the police department followed a “use-of-force spectrum” that proceeded in the following order: officer’s mere presence to verbal direction, then use of soft- or hard-hand tactics, pepper spray, the Taser, the baton, then the firearm. Each officer of the city was to be recertified in the Taser usage every 12 months. The lieutenant testified he’d never been involved in disciplining any one of the city’s officers for failing to observe the Taser policy.
Each of the three officers offered differing testimony about the police department’s Taser policy. One officer testified that he went from verbal direction immediately to the use of the Taser, which he believed to be in compliance with the policy. Another officer testified that the policy permitted officers to use the Taser before placing hands on an offender, after giving not one, but two, verbal warnings. If the suspect is resisting, the Taser is used prior to the application of other tools like pepper spray. The only thing the third officer could recall about the Taser policy was that an officer is required to complete a report after each use.
The city filed a motion for summary judgment stating that as a matter of law, Ellis didn’t demonstrate that the city had failed to train its police officers regarding the use of force and, specifically, the use of the Taser. However, for reasons unknown, the city discontinued the use of the Taser following this incident.
The Law on Failing to Train
The district court recited the necessary elements to prove a case against the city for failing to train its officers.4 To be sure, a municipality can’t be held vicariously liable for the acts of its police officers under the Fourth Amendment on a respondent superior theory. “Rather, a municipal policy or practice must be the ‘direct cause’ or ‘moving force’ behind the constitutional violation. In other words, ‘it is when execution of a government’s policy or custom. . . inflicts the injury that the government as an entity is responsible under § 1983.”
A plaintiff can establish liability on behalf of a city in one of three ways, either by “1) an express policy that, when enforced, causes a constitutional deprivation; 2) a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; or 3) an allegation that the constitutional injury was caused by a person with final policymaking authority.”
“A policy of inadequate training may serve as the basis for [a city’s] liability under § 1983, but ‘only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.’ Courts find deliberate indifference on the part of policymakers only when such indifference may be considered a municipal policy or custom. The Seventh Circuit[, for example,] has held that proof of deliberate indifference on the part of the municipality can take the form of either ‘1) failure to provide adequate training in light of foreseeable consequences; or 2) failure to act in response to repeated complaints of constitutional violations by its officers.’”
“Proof of deliberate indifference requires more than ‘[a] showing of simple or even heightened negligence.’ Instead, in order to prove deliberate indifference on behalf of a municipality . . . requires a high degree of culpability.”
No Deliberate Indifference
In this case, Ellis sought to hold the city liable by arguing, among other things, that the city’s failure to adequately train its police officers in the use of Tasers led to a constitutional violation in which the insufficiency amounted to a deliberate indifference on the part of the city.
Ellis focused on the first method of proving deliberate indifference—that the city failed to provide adequate training in light of foreseeable consequences.5 The district court stated that “if a municipality placed a dangerous weapon such as a Taser in the hands of its police officers without any training whatsoever and then sent them out on the streets, it is entirely foreseeable that the Tasers would be misused and the municipality could be liable for any resulting injuries.”6
However, the problem for Ellis, according to the court, was that he couldn’t identify anything about the training program that failed to pass constitutional scrutiny. He couldn’t present any evidence that the eight-hour initial training was too short or that the lessons were somehow defective or that the 12-month interval between trainings was too infrequent. Instead, the only evidence Ellis offered to demonstrate that the training was somehow deficient was that the officers didn’t follow the city’s Taser policy or that they “appeared ignorant of the policy” when they were asked about it in their depositions.7 According to Ellis’ theory, the “proof is in the pudding”—meaning, the city’s training program “must have been deficient because [the officers] gave inconsistent (and incorrect) answers” about the Taser policy during their depositions.8
The district court didn’t buy Ellis’ argument stating that “this method of establishing a deficient training program has been squarely rejected by the Supreme Court: ‘In resolving the issue of a city’s liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from other factors other than a faulty training program.’”9
The district court found that the evidence suggested that the officers may have been confused about what the city’s Taser policy actually was, but there was no evidence to demonstrate that a “faulty training regimen was the ‘moving force’ behind this confusion. Instead, ‘it may be, for example, that an otherwise sound program has occasionally been negligently administered, or that [the officers] were exceptionally poor students.’”10 That being said, a “particular officer’s unsatisfactory training cannot alone suffice to attach liability . . .,” for an “officer’s faults . . . may result from factors other than the deficient training program” and even “adequately trained officers sometimes err, and such error says little about their training program or the legal basis for liability.”11
Certainly, Ellis wanted the court to assume that the officers’ failure to adhere to the department’s policy was directly caused by some flaw in their training. However, the court found that making such an assumption would have been directly contrary to the “heightened standard of causation required by the City of Canton and its progeny.”12
In the end, stating that “even if the officers ‘could have done a much better job handling’ the circumstances giving rise to [Ellis’] lawsuit, summary judgment for the City remains proper because [Ellis] ‘fail[ed] to identify any meaningful systemic problem with the way in which [the officers] [we]re trained.’”13
As the Ellis case demonstrates, liability for failing to train officers is extremely difficult for plaintiffs to establish in a civil rights litigation. Nonetheless, each agency should have a policy regarding the use of force, require training on the use of force and document each officer’s level of training and any use of force. Together, these items can overcome plaintiffs’ failure-to-train claims.
1. 06 CV 1895, 2011 WL 1113032 (N.D. Ill., March 24, 2011).
2. Ellis, 2011 WL 1113032, at *2.
4. See, id. at *4. All references to the district court’s quoted opinion that follow in this section are found at ** 4-5 and don’t include the citations.
5. The second method of proof in the Seventh Circuit is demonstrating the city failed to act in response to repeated complaints of constitutional violations by its officers.
6. Ellis, at *6.
8. Id. (emphasis original).
9. Id. (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989).
11. Id. (citation omitted).
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.