E-Newsletter Edition: May 7, 2009
Response Provided By: Jack Ryan, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
Not one of [our] 10-full time deputies has qualified or even fired their firearm in (three) years. In addition they have had no Taser training in almost two years.
Upon checking our ammunition supply I learned the reason why there has been no firearms training, we have no bullets.
I requested from the County Board of Commissioners a line item for ammunition. I was turned down. How do I address this issue. What are our liability problems if a shooting occurs. Am I opening myself to possible civil problems, or have I covered myself do to the fact I have requested the ammunition to re-qualify my staff?
If officers are not being properly qualified with weapons or tasers, there is certainly a liability issue. Every proper policy on weapons includes a provision that indicates that officers must be trained and certified with that weapon. As you know, shooting is a perishable skill and thus must be trained on a regular basis. Newer cases have indicated that there must also be training on the when to shoot rather in addition to the how to shoot.
Taser now recommends re-certification every two years, I take that as the minimum standard and think a plaintiff can make headway on a failure to train claim if such is not done. As far as your personal liability is concerned, if you have taken steps with the commission and have been turned down, it is unlikely that you would have liability because you have not been deliberately indifferent. I would encourage you and the sheriff to document the steps you’ve taken to try to resolve any training deficiencies. I would also encourage that you do what you can with the limited resources you have to try to conduct some training on these high-risk critical tasks even if that means using water pistols and doing some shoot/don’t shoot training.
by Jack Ryan, J.D., Legal & Liability Risk Management Institute
For many years law enforcement agencies trained officers the “how to” shoot by using marksmanship courses for firearms training. Officers would stand at various distances from paper targets and take aim. As training progressed, agencies began creating combat and stress courses that incorporated officer movement, target movement and limits on the amount of time an officer would have to fire. While these courses are sufficient in training officers how to shoot; they fail in training an officer when to shoot and they fail to reflect the conditions under which most officers are required to work. Even “combat” training programs do not adequately address “decisional” training needs.
Almost 25 years ago, the courts began telling law enforcement that firearms training had to be more reflective of the conditions that officers would face while working. In Popow v. City of Margatei, an officer in foot pursuit of a suspected kidnapper fired as the kidnapper ran down the street. As a result, the officer accidentally shot Mr. Popow, killing him. While the court’s reasoning in Popow with respect to the constitutional analysis of an accidental shooting would not be followed by courts today, the court’s assertions with respect to firearm’s training is still being cited by courts.
In addressing the City of Margate’s liability with respect to firearms training the court noted that the officer involved testified in his deposition that he was initially trained on deadly force at the police academy ten years prior to the shooting. His continued firearms training with respect to firearms consisted of going to a range twice a year. The court noted that there was no training with respect to low light conditions, moving targets or firing in residential areas. The court concluded that it was entirely foreseeable that an officer from the City of Margate, a largely residential area, would have to pursue a fleeing (moving) suspect at night (low-light). The court remanded the case back to the trial court after deciding that a jury could find the training provided by the City of Margate was grossly inadequate.
The need for training on the “when to” shoot is now an accepted fact among the courts. Unfortunately, many police agencies, due to a lack of resources, still have not developed training in this area. The failure to have “judgment” or “decisional” training with respect to the use of deadly force is a risk that agencies cannot afford to take.
In Zuchel v. Denverii the United States Court of Appeal for the 10th Circuit examined a case which began when members of the Denver Police Department responded to a disturbance call at a fast-food restaurant. Upon arrival, officers were told that the subject responsible for the disturbance had gone around the corner. As officers turned the corner they observed Zuchel, who had his back to the officers, arguing with some teenagers. Someone shouted that Zuchel had a knife. As the officers approached Zuchel turned toward the officers, at which time Officer Spinharney fired four times, killing Zuchel. A pair of fingernail clippers was found next to Zuchel. Officer Spinharney’s partner testified that she was surprised when Officer Spinharney fired because she was right next to Zuchel and about to grab him.
Following a civil trial against the City of Denver, (the case against Officer Spinharney had been settled prior to trial); a jury came back with a verdict against the city for $330,000 based upon a failure to adequately train. The City of Denver appealed. In upholding the verdict, the court cited testimony by a Denver police detective as well as testimony from the plaintiff’s expert on police training. The detective testified that the only “shoot-don’t shoot training” that existed at the time of Zuchel’s death “consisted of a lecture and a movie.” The plaintiff’s police practices expert testified that if the only “shoot-don’t shoot” training officers received was a lecture and a movie, then the training was grossly inadequate.
In reviewing these two decisions, Popow and Zuchel, it is clearly established that law enforcement agencies must conduct firearms training on a regular basis; the firearms training must reflect the environment that officers are likely to face, i.e. moving targets, moving officers, low-light conditions and residential areas if applicable to the agency being trained; and finally agencies must conduct decision making training with respect to when to use deadly force. Annual or semi-annual qualification courses are simply insufficient for purposes of assisting officers in making deadly force decisions and for purposes of avoiding liability.
Qualification courses and other courses which emphasize speed under stress and marksmanship, without decision making skills may actually enhance liability. Noted police practices expert G. Patrick Gallagher while speaking to groups nationally has recounted the story of an agency that determined that one of their officers had been involved in a bad shooting, fortunately for the officer’s intended target, the officer missed. In order to remediate the officer’s mistake, the agency sent the officer to the range where he underwent re-training. As a result, his shooting skills were enhanced, but his decision-making skills with respect to deadly force remained unchanged. Thus, the agency now had a more skilled shooter who would more likely hit his target when he made a bad decision.
A recent case from the United States District Court, Rhode Island provides an example of how documented training that incorporates shoot-don’t shoot may diminish or eliminate an agency’s liability in a failure to train case. Young v. City of Providenceiii involved every police department’s worst nightmare. Two uniformed police officers responded to a call of two women fighting outside a late-night restaurant that was a common gathering spot after the local bars closed. When the officers arrived at the scene they observed a Hispanic male in the parking lot with a gun. One of the officers took cover behind a telephone pole and remained there throughout the ordeal. The second officer, who had completed field training by only eight days, took cover behind the passenger wheel-well of the police cruiser, using the engine block as cover. The officers ordered the man to drop the gun and get on the ground. When the man complied with the officers’ commands the officer behind the cruiser no longer had a visual observation of him. The officer then left his position and moved behind the rear bumper of the suspect’s vehicle in an attempt to see him.
As the officers continued shouting orders to take the Hispanic subject into custody, a second man came out of the restaurant brandishing a firearm. The second man, an African American male, wearing a heavy winter coat began approaching the Hispanic male. The officers ordered the man to drop his gun and when he failed to do so, both officers fired. Each of the officers fired, what would prove to be, fatal shots. As other officers arrived on the scene of this shooting it was learned that the African American male was an off-duty police officer, Cornel Young Jr., who was apparently going out to assist his brother officers.
In a bi-furcated trial a jury determined that the officer who fired at Officer Young from behind the telephone pole had acted reasonably while the second officer who had moved from his position of cover behind the police vehicle prior to the shooting had acted unreasonably. The only clear distinction between the two officers was that one of the officers, arguably left a good position of cover, while the second remained in a position of cover. Prior to the case moving on to its second phase where the plaintiff was alleging that the shooting was the result of the police department’s failure to train its officers, the judge issued summary judgment for the department and the training officers who were named as defendants in the suit.
In dismissing all of the failure to train claims the court cited to the documented training that the police department had conducted. This training included scenario based decision making training that included shoot-don’t shoot decision making. The training also included training on an interactive firearms simulator where officers would have to give verbal commands, make decisions regarding cover, and in some cases make the ultimate decision of whether to shoot or don’t shoot. As a result of the documented training, the court concluded that the plaintiff would not be able to succeed on a claim that the department or its trainers were deliberately indifferent with respect to firearms and deadly-force based training.
In addition to the case law, model policies on use of force direct that agencies must conduct shoot-don’t training.iv In a lawsuit that includes a failure to properly train on deadly force, police practices experts will use these model policies to support an opinion that the generally accepted police practice or the national standard is to conduct this type of training. An agency that fails to conduct this type of training faces the possibility that liability will be found if the failure in training has led to a bad shooting.
In developing shoot-don’t shoot training, agencies should try to foresee as many possible scenarios that officers are likely to face. Every possible scenario cannot be foreseen, but many can be and training should be geared to the recurring circumstances that officers must deal with. Some examples would include situations that may be de-escalated by a proper police response; response to emotionally disturbed persons; response to off-duty situations; response to suicide-by-cop situations; decision making with respect to good citizens who are in possession of firearms i.e. the store owner with a gun who is pursuing the robber from his store; vehicle involved firearms scenarios; circumstances where missed shots may endanger innocent persons; and persons turning with innocent objects in their hands.
Obviously, all of the scenarios should be conducted with varying environmental conditions such as low-lighting; residential or densely populated areas; and movement of both suspects and officers. The scenarios should also encompass a full force continuum evaluation with respect to officer response i.e. did the officer give verbal commands? Did the officer use other tools where they may have effectively resolved the event without resorting to deadly force where appropriate? Did the officer give a warning (where appropriate) before using deadly force?
In managing risk by conducting shoot-don’t shoot training, agencies may consider purchasing a firearms training simulator. The current technology in these simulators has greatly advanced over the past few years allowing training officers to escalate and de-escalate scenarios in accordance with the response of the officer involved in the training. Some of the more advanced simulators, such as Advanced Interactive Systems, AIS® simulator, have scenario authoring capability such that agencies can develop their own scenarios. An agency that does not have the resources for scenario development can also purchase canned scenarios that have been developed by their simulator’s manufacturer. For example, AIS has hundreds of pre-produced scenarios, each containing numerous branching options depending on officer response, for all of the various law enforcement functions. Agencies that cannot afford these simulators should be creative. Deadly force decision-making training with an inexpensive paintball gun or even a squirt gun is better than no training at all.
ii Zuchel v. Denver, 997 F.2d 730 (10th Cir. 1993).
iii Young v. City of Providence, 2004 U.S. Dist. LEXIS 1847 (R.I. 2004).
iv See International Association of Chiefs of Police Model Policy on Use of Force and the accompanying concept paper revised August 2001. (“Finally, firearms training with respect to the use of deadly force cannot be limited to routine firearm qualifications and proficiency testing. It is recommended that all officers authorized to carry firearms be required to qualify with each authorized firearm on at least a semiannual basis and preferably three times per 12 month period. But, in addition to proficiency testing, it is strongly recommended that police agencies provide (1) routine instruction and periodic testing on the agency use-of-force policy and (2) instruction and practical exercises in making decisions regarding the use of deadly force. In the latter instance, it is important that an element of firearms training include realistic use‑of‑force simulation exercises. This includes night and/or reduced light shooting, shooting at moving targets, strong‑hand/weak‑hand firing, and combat simulation shooting. Firearms training should attempt to simulate the actual environment and circumstances of foreseeable encounters in the community setting, whether urban, suburban, or rural. A variety of computer‑simulation training is available together with established and recognized tactical, exertion, and stress courses. In essence, acceptable firearms training and evaluation are no longer limited to target practice. Scrutiny of firearms training will normally include an evaluation of the relevance and utility of such instruction.”)