Police agencies have an obligation to train its police officers for the recurring tasks that officers will face during their career. Where it is foreseeable that a police officer will face a particular task that may result in harm to another person, the officer’s agency must provide training in how to conduct that task in a manner which is consistent with generally accepted practices in law enforcement. What is “generally accepted” is defined by the law enforcement profession and by court decisions analyzing police conduct.

Training serves as a means toward high-level performance by police officers. Training is an input toward proper performance. Unfortunately, many agencies conduct training to avoid, or in response to civil liability rather than to promote high-level performance. Over the past two decades, attacks on training have become one of the weapons for persons who file lawsuits against the police.

The foundation case on failure to train is City of Canton v Harris *1. Geraldine Harris was arrested by the Canton Police and brought to lock- up. During the booking process she fell to the floor several times. When asked if she needed medical assistance, she responded incoherently. No medical attention was ever summoned for her. Following her release, relatives brought her to the hospital where she was treated for several emotional ailments.

During the trial on Harris’ claims, evidence was established that shift commanders had the sole discretion to determine whether or not a detainee needed medical attention. It was further established that the shift commanders were given no training to assist them in making these medical evaluations. Harris prevailed on her claim at the trial court level, but the United States Court of Appeals for the 6th Circuit vacated the finding against the city because of the jury instructions. The 6th Circuit would have applied a standard of recklessness, intentional or gross negligence.

The United States Supreme Court held that “a municipality may be held liable under § 1983 for violations of rights guaranteed by the Federal Constitution, which violations result from the municipality’s failure to adequately train its employees, only if that failure reflects a DELIBERATE INDIFFERENCE on the part of the municipality to the constitutional rights of its inhabitants.

It should be noted that failure to train cases can be established in two ways. The first involves a lack of training in an area where there is a patently obvious need for training, for example an officer who is untrained in deadly force unreasonably shoots someone. The second method of establishing a failure to train by an agency is to establish a pattern of conduct by officers that would put the final policymaker on notice and the policymaker failed to respond with training.

Certain forms of conduct are beyond the reach of failure to train. For example, in Walker v. City of New York, a plaintiff who spent nineteen years in jail for a crime he did not commit brought a failure to train claim based on the department’s failure to train its officers not to commit perjury.*2   Walker’s wrongful conviction was based upon perjured testimony by a police officer. The United States Court of Appeal for the 2nd Circuit held: “If the conduct on which the claim is based is such that a common person would know the right response without training, there is no duty to train.”The court, in its decision provided a three-part analysis for determining when a duty to train is established:

  • Plaintiff has to show that a policy maker knows to a moral certainty that his or her employees will confront a given situation.
  • The plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.
  • The plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen’s constitutional rights.
When considering the areas of training that must be covered, an agency can simply apply this three-part test. For example, does the chief know to a moral certainty that officers may face deadly force situations? Second, is deadly force a situation that presents officers with a difficult choice of the sort that training or supervision would make easier? Finally, if an officer makes the wrong choice in a deadly force situation, is it likely to lead to a constitutional violation?

A case from the United States Court of Appeals for the 10th Circuit involved injuries suffered by a quadriplegic during a car stop.*3 Clarence Paul, a partial quadriplegic was riding as a passenger in Lloyd Gildon’s auto. Gildon’s wife had reported the vehicle stolen. Officer Gilpatrick of the Altus, Oklahoma Police Department stopped the vehicle. During the stop, the officer ordered Paul out of the vehicle. Paul responded that he was paralyzed and unable to get out. The officer then allegedly chambered a round into his shotgun. Paul then rolled down the window and again informed the officer that he was paralyzed and could not get out of the car.

Paul testified that two officers grabbed him by the neck and pulled him from the vehicle. Officer Gilpatrick placed his knee on Paul’s neck and back while he handcuffed him. During this ordeal Clarence Paul urinated on himself and became unconscious. He asked the officers to call him an ambulance. Paul was taken to the hospital where it was determined that his neck was fractured and his hip was sprained. Paul filed a lawsuit alleging that the police department improperly trained officers to place their knees on suspect’s neck while handcuffing them. The city introduced training materials from the Council of Law Enforcement Educational Training that specifically included instructions not to place a knee on a suspect’s neck “for obvious medical reasons.” The city took the position that if Officer Gilpatrick did put his knee on Paul’s neck he acted in violation of this training.

The court refused to grant the city’s request for summary judgment after reviewing an incident report left by one of the officers at the scene. The report asserted: “Gilpatrick then brought the subjects (sic) right arm around the middle of his back and had his knee on the subject’s neck. The way we’re instructed to handcuff in the felony prone position.” The court concluded that there was an issue of fact as to what the officers were actually trained to do. Thus, from an agency liability standpoint the entire case rests on what the officer was trained; was he trained as stated in the report? Or, was he trained in accord with the CLEET lesson plan?

This case also provides a good example of why training must be documented at two levels, first, what was trained; second, who was trained. At trial in cases like this, the agency and its trainers may be in an adverse position to the officer since the agency and its trainers will not be liable if it can be shown that the officer acted inconsistently with documented training.

A case involving the City of Plano, Texas Police Department provides an excellent summary of the failure to train analysis.*4 The plaintiff in Gabriel v. City of Plano was described by the court as an “itinerant preacher and anti-abortion activist” who has engaged in a number of anti- abortion protests near R.C. Clark High School in Plano, Texas. On three separate occasions during late August and early September, Gabriel demonstrated near the school. He was issued warnings that placed limits on his conduct on the first two occasions. Although school officials complained of Gabriel’s disruptive behavior he was not issued a citation. On September 3rd 1996, Gabriel’s protest escalated and “caused agitation” among students. Gabriel was swinging his protest sign in such a manner as to disrupt the flow of students from buses. When officers approached him, he refused to identify himself and swung his sign at one of the officers. The officers informed him that he was violating the Texas Education Code, by disrupting school, and asked him to leave. Gabriel left the scene and was not arrested nor issued a citation.

Gabriel filed a lawsuit alleging that his rights were violated when officers asked him to leave the area of the school under the threat of arrest. His claim against the police department was based in a failure to train argument.

In its analysis of the facts in this case the court explained that Gabriel’s burden with respect to his claim “is three-fold; he must prove that:

  • his rights were violated as a result of
  • a municipal custom or policy of
  • deliberate indifference to his rights.”
“In failure to train cases, the plaintiff can prove the existence of a municipal custom or policy of deliberate indifference to individuals’ rights in two ways. First, he can show that a municipality deliberately or consciously chose not to train its officers despite being on notice that its current training regimen had failed to prevent tortuous conduct by its officer. Second, under the ‘single incident exception’ a single violation of federal rights may be sufficient to prove deliberate indifference, The single incident exception requires proof of the possibility of recurring situations that present an obvious potential for violation of constitutional rights and the need for additional or different police training.” The court concluded that Gabriel failed to meet the necessary burden for a failure to train claim. 

Failure to Train Use of Force

Any time a law enforcement officer uses significant force, the likelihood that a lawsuit will follow is almost a certainty. Most of these lawsuits are brought in the federal courts as civil rights claims based upon the Fourth Amendment to the United States Constitution. These actions are brought under a federal statute, 42 U.S.C. § 1983 which creates civil liability when a person, acting under color of law, violates federally protected rights of another, causing damage. Under § 1983, a governmental entity, specifically a town, city or county are not liable for all of the actions of their employees. Governmental entities are only liable in cases where some policy, custom, rule, ordinance, causes the employee to commit the violation or where the entity has failed to supervise, discipline or train the employee and this failure leads to a foreseeable constitutional violation.*5

The focus of this section is on training with respect to law enforcement’s use of force.

Applying the three-part need for training test from Walker: Should policy makers know to a “moral certainty” that officers will be faced with making decisions on whether or not to use deadly force? Is the decision to use deadly force a difficult choice? Will the wrong choice frequently result in deprivations of a constitutional right? Decision making training with respect to the use of deadly force falls squarely within the description of a law enforcement task for which there is a patently obvious need for training.

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 Margate,*6 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. Denver*7 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 Providence*8 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.*9 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.

In many lawsuits, police practice experts are hired to review the actions of officers in using force. These experts are sometimes allowed to testify to tactical mistakes that officers made in confronting the subject that in some way escalated the situation to where force had to be used. The expert, in many cases will then focus on failure in police training that caused the mistakes.

Two cases from the United States Court of Appeal for the Tenth Circuit provide a good example.*10 In Allen v. City of Muskogee,*11 the police received calls concerning a suicidal man. The police responded to the man’s sister’s home where the man was seated alone in his vehicle with a gun. Within 90 seconds of their arrival, the police rushed the vehicle and attempted to grab the gun from the subject. When the startled subject moved, officers believed he was turning the gun toward them and the officers opened fire killing the man.

A department training officer was deposed and was asked whether the shooting officers, in approaching the subject, had acted consistently with their training. The training officer responded that the officers had acted consistently with their training. A police practices expert provided testimony indicating that police officers are trained to isolate and negotiate with subjects who are suicidal and holding themselves hostage. The expert then concluded that if the training officer was correct concerning the officers acting consistently with their training, then the training was inconsistent with every bit of police training nationally.

The second case, Carr v. City of Oklahoma City,*12 also involved a use of deadly force. Oklahoma City police officers were called to an apartment building for an assault. The officers met with the landlord who reported that he had been assaulted by Randall Carr. The officers went to Carr’s apartment and initially received no response. After meeting a second time with the landlord, the officers returned to Carr’s apartment and knocked at the door. Carr opened the door and “was acting very excited and aggressive.” As the officers attempted to handcuff Carr, he assaulted the officers and fled on foot.

The officers pursued Carr on foot and confronted him when he came to a fence that he could not climb. Carr ran toward one of the officers with a concrete block raised over his head. The officers indicated that they commenced firing while Carr had the concrete block raised over his head. An impartial witness testified that the shots were fired after the concrete block had already been thrown.

As part of the resulting lawsuit, the plaintiff attacked the agency’s training on several accounts. Among the attacks were allegations that the agency had “inadequate training as to control of subjects who might threaten officers with items similar to the concrete used by Randall; failure to train officers to stop discharging their weapons after the threat had stopped; inadequate training to recognize when the use of a rock would justify deadly force; inadequate training in subject control tactics; failure of the City’ Firearms Training Simulator (FATS II Series machine) to provide any shoot/don’t shoot shoot training relating to situations with a rock or other similar object; failure to train officers properly in the recognition and proper handling of emotionally disturbed persons; and inadequate training to recognize that an emotionally disturbed person should have been approached cautiously and in a non-confrontational manner.”

The court noted the essential elements of a failure to train claim in use of force:

  • The officers exceeded constitutional limitations on the use of force-Plaintiff must first prove that officer’s use of force was excessive.
  • The use of force arose under circumstances that constitute a usual and recurring situation that officers face (foreseeability).
  • The inadequate training must be so inadequate as to demonstrate a deliberate indifference on the part of city policy makers toward persons with whom the police have contact.
  • There is a direct causal link between the constitutional deprivation and the inadequate training. (The deficient training must be the cause of the injury.)

A plaintiff must prove all of the four elements in order to establish a failure to train claim with respect to use of force.

In applying the four-factor approach to the facts of this case, the court found that the first two elements were met. It should be noted that this was a review of summary judgment, thus the court was reviewing the facts in the light most favorable to the plaintiff. The court found that the officers exceeded the constitutional limitations on the use of force and that use of deadly force is a recurring situation which officer must deal with. The court went on to find that Carr had failed to prove that the City policy makers were on notice with regards to any deficiencies in training and since they were not on notice they had not acted with deliberate indifference. On this point, the court asserted that the allegation was that the officer’s had shot Carr in the back after the threat from the concrete block had passed. The court, after reviewing police training asserted that it was clear that the agency did not train officers to shoot people in the back when they were no longer a threat, thus, the training did not cause the injury that was alleged.

In its analysis, the court cited important language from Canton which is worth noting here:

“In resolving the issue of a city’s liability [for failure to train], 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 factors other than a faulty training program. It may be, for example, that an otherwise sound program has occasionally been negligently administered.”

Thus, for purposes of agency liability with respect to training, a court will review the program itself. How is this done? The court will review documented training by reviewing lesson plans, training outlines and the deposition testimony of trainers regarding the content of the training. It should be noted where a sound training program is negligently or deliberately indifferently administered by a particular training officer, the agency will not be liable but, the training officer may have liability as an individual. Where poor training leads to an injury to a third party [other than a police officer] the training officer can and likely will be a defendant in the lawsuit.

Use of Force-Emotionally Disturbed and Mentally Ill Persons

While the force continuum remains constant for controlling and arresting all persons, a number of cases suggest that agencies must conduct training for dealing with the emotionally disturbed and mentally-ill persons in the context of use of force. Many agencies have policies related to civil commitments and dealing with the mentally ill, yet few agencies actually conduct training related to these policies and even fewer train on tactics and use of force in the context of the emotionally disturbed and the mentally ill.*13

In Gaddis v. Redford Township and City of Dearborn Heights*14 the United States Court of Appeal upheld a lower court’s dismissal of a lawsuit against officers and two municipalities for a shooting involving an emotionally disturbed person. The incident in Gaddis began when an officer observed Joseph Gaddis driving his automobile in a slumped-over position. The officer believed Gaddis was drunk and pulled him over. When the officer got out of his police car, Gaddis took off again. The officer pursued Gaddis and was joined by other officers. When Gaddis was finally stopped, Officer Bain approached the driver’s side of the car and told Gaddis to step out of the car. When Gaddis stepped out he had his hands in his pockets. The officer told him to take his hands out of the pockets. As Gaddis pulled his hands out, some of the officers observed a knife in his hand. The officer tactically created some distance and began yelling at Gaddis to drop the knife, leading to a two to three minute standoff.

At some point during this standoff, Gaddis said to Bain “Why are you doing this to me, Chris, like you did to me in California.” Bain testified that this remark led him to believe that Gaddis was not rational since Bain had no prior contact with Gaddis. Following an assertion by Gaddis that he wanted to leave, Officer Bain moved in and pepper-sprayed him. Shortly thereafter a second officer, Burdick, went over the trunk of Gaddis’ vehicle and tried to tackle him, which caused Gaddis to violently react and strike Burdick with a “windmill” type motion. Officer Bain and Officer Duffany testified that they observed Gaddis stabbing at Officer Burdick causing them to open fire, shooting sixteen rounds in a single burst, hitting Gaddis in the torso, right arm, buttocks, and left thigh.

In the resulting lawsuit, Gaddis’ expert Dr. Jim Fyfe (Commissioner of Training NYPD) provided an affidavit that asserted his opinion “that the officers deviated from proper police techniques for dealing with emotionally disturbed persons (EDPs). In particular, he testified that officers using correct police techniques would recognize that ‘techniques of intimidation and force’ are not likely to work on EDPs in the way they may work on rational persons. He testified that police should instead have picked a single officer to talk calmly to the EDP, and should have refrained from unnecessary displays of force. Fyfe criticized Bain’s use of pepper spray, and described Burdick’s attempt to tackle Gaddis by surprise from behind as a ‘terrible tactic.’”

Although the court upheld the summary judgment for the officers, the court asserted:

“We acknowledge that a suspect’s apparent mental state is one of the facts and circumstances of the particular case that should be considered in weighing an excessive force claim. Moreover, the opinions of qualified experts such as Mr. Fyfe are often entitled to be given weight in this determination.”

This is an area where agencies need to provide some level of training, particularly as courts begin to recognize such training as a generally-accepted police practice.

A case providing insight into the importance of such training was decided by the United States District Court for Nevada and denied summary judgment for the Las Vegas Metro Police Department on a failure to train claim related to dealing with the mentally ill in the use of force context. The case, Herrera v. Las Vegas Metropolitan Police Department*15 involved a call to the police to assist in taking David Herrera, who was described as having severe mental illness and being delusional, for an involuntary commitment to a hospital. At the outset, it should be noted that the court was considering a summary judgment motion and the facts examined by the court were not agreed upon facts, but instead were the facts reviewed in a light most-favorable to Herrera’s estate.

The call prompted the response of four officers and a supervisor to the Herrera’s mother’s home. The police were told of Herrera’s mental illness; that there were no firearms in the house; and that Herrera was alone. David had previously been holding a small paring knife before the police arrived. The officers decided to use a “devastator” pepper- spray canister and a “low-lethality shotgun” loaded with bean bag pellets. The officers were given the key to the house by Herrera’s mother and attempted to use it to gain entry. When Herrera kept re-locking the door, the officers kicked it in. The officers then confronted Herrera, who was holding a knife. One officer fired four shots from the bean-bag shotgun, buckling Herrera at the knees; two officers approached and tried to knock the knife from his hands with their batons; a third officer approached and sprayed Herrera with the pepper spray. The officers continually told Herrera to drop the knife, but he did not. Instead, he held the knife up and told the officers they would have to kill him. According to the officers, Herrera began moving toward the officers causing Officer Woodruff to shoot Herrera several times, killing him.

In its consideration of the failure to train claim, the court concluded:

“that the evidence provided by plaintiff, indicating that the police were inadequately trained in dealing with the mentally ill and using impact projectiles, is sufficient to survive summary judgment. Plaintiff’s expert, retired Captain Van Blaircom, who is former chief of police for the City of Bellevue, Washington, testified that the Defendant officers should have known that the manner in which they approached the decedent would escalate the confrontation. According to Van Blaircom, the officer’s treatment of the situation, combined with their statements that a mentally ill person should be treated as any other person, regardless of the situation, indicates that the police department’s training dealing with the mentally ill falls well below the reasonable standard of contemporary care.”

Upon reviewing these cases, one must recognize that courts are taking into account a person’s mental illness and further have determined that where officer’s know of the mental illness or emotional disturbance, officer’s may have an obligation to alter their tactics where they can safely do so. Further, an agency that fails to train officers that these circumstances may require different treatment may face liability for deficient training.

The International Association of Chiefs of Police (IACP) implemented a model policy on “Dealing with the Mentally Ill in 1997. The policy asserts:
Dealing with individuals in enforcement and related contexts who are known or suspected to be mentally ill carries the potential for violence, requires an officer to make difficult judgments about the mental state and intent of the individual, and requires special police skills and abilities to effectively and legally deal with the person so as to avoid unnecessary violence and potential civil litigation. Given the unpredictable and sometimes violent nature of the mentally ill, officers should never compromise or jeopardize their safety or the safety of others when dealing with individuals displaying symptoms of mental illness. In the context of enforcement and related activities, officers shall be guided by this state’s law regarding the detention of the mentally ill. Officers shall use this policy to assist them in defining whether a person’s behavior is indicative of mental illness and dealing with the mentally ill in a constructive and humane manner.

The policy also provides a number of suggested tactics when dealing with the mentally ill:

Should the officer determine that an individual may be mentally ill and a potential threat to himself, the officer, or others, or may otherwise require law enforcement intervention for humanitarian reasons as prescribed by statute, the following responses may be taken.

  • Request a backup officer, and always do so in cases where the individual will be taken into custody.
  • Take steps to calm the situation. Where possible, eliminate emergency lights and sirens, disperse crowds, and assume a quiet non-threatening manner when approaching or conversing with the individual. Where violence or destructive acts have not occurred, avoid physical contact, and take time to assess the situation.
  • Move slowly and do not excite the disturbed person. Provide reassurance that the police are there to help and that he will be provided with appropriate care.
  • Communicate with the individual in an attempt to determine what is bothering him. Relate your concern for his feelings and allow him to ventilate his feelings. Where possible, gather information on the subject from acquaintances or family members and/or request professional assistance if available and appropriate to assist in communicating with and calming the person.
  • Do not threaten the individual with arrest or in any other manner as this will create additional fright, stress, and potential aggression.
  • Avoid topics that may agitate the person and guide the conversation toward subjects that help bring the individual back to reality.
  • Always attempt to be truthful with a mentally ill individual. If the subject becomes aware of a deception, he may withdraw from the contact in distrust and may become hypersensitive or retaliate in anger.

While the model policy was actually developed to assist law enforcement with dealing with the mentally ill in non-arrest situations, this policy is now being looked by some police practice experts as defining the tactics that officers should use whenever they are dealing with a known mentally ill or emotionally disturbed person. Training officers would be well- advised to conduct training related to these tactical considerations for dealing with the mentally ill or emotionally disturbed persons.

Courts have also considered the use of particular types of tactics and restraints on persons who are afflicted with psychological or physical impairments that may make the use of the tactic or restraint more dangerous to the person’s health or well-being.

Cruz v. Laramie, provides a typical set of facts seen in these cases.*16 The Laramie, Wyoming Police Department received a call that a man, later identified as Cruz, was running around naked near an apartment complex. The first officer on scene found Cruz on a stairwell landing on the exterior of the apartment complex. Cruz was “jumping up and down, yelling and kicking his legs in the air.” A second officer arrived and upon seeing Cruz, immediately called for an ambulance. The officers on scene, along with a third who had arrived, tried to calm Cruz and persuade him to come down the stairs. Cruz initially refused but at some point started toward the officers who were at the bottom of the landing with batons at the ready position.

As Cruz attempted to pass the officers, the three wrestled him to the ground and placed him face down. They were able to handcuff Cruz; however, he continued kicking and flailing about. A fourth officer who had arrived at the scene decided after assessing the situation to shackle Cruz’ ankles using a nylon flex-cuff and then attach the flex cuff to the handcuffs with a metal clip. The evidence presented by the parties in this case did not agree as to the distance between Cruz’ hands and ankles as a result of this hog-tie (or maybe hobble-tie) restraint. The court indicated that if the distance was less than 12” then the restraint would be a “hog tie” if the distance was more than 12” then the restraint would be a “hobble tie.” The officers noted that Cruz calmed markedly following the use of this restraint. In fact, just prior to the arrival of the ambulance, one of the officers noticed that Cruz had “blanched.” CPR was immediately begun; however, Cruz was pronounced dead upon his arrival at the hospital. Autopsy results indicated that Cruz had a large amount of cocaine in his system at the time of his death. As in many cases, two experts disagreed: one indicating that Cruz died from positional asphyxia, the second indicating that Cruz died from the cocaine.

In ruling on the constitutionality of hog tie restraints, the United States Court of Appeals for the 10th Circuit asserted:

The conduct at issue involves the tying of the decedent’s arms behind his back, binding his ankles together, securing his ankles to his wrists, and then placing him face down on the ground. We note that while sister circuits may characterize the hog-tie restraint somewhat differently; we understand such to involve the binding of the ankles to the wrists, behind the back, with 12 inches or less of separation. We have not heretofore ruled on the validity of this type of restraint. We do not reach the question whether all hog tie restraints constitute a constitutional violation per se, but hold that officers may not apply this technique when an individual’s diminished capacity is apparent. The diminished capacity might result from severe intoxication, the influence of controlled substances, a discernible mental condition, or any other condition apparent to the officers at the time, which would make the application of a hog tie restraint likely to result in any significant risk to the individual’s health or well-being. In such situations, an individual’s condition mandates the use of less restrictive means for physical restraint.

The court then looked at the facts of this particular case and determined that the officers had clear notice of Cruz’ diminished capacity. The court pointed out that one of the officers on scene called for an ambulance prior to Cruz’ restraint based upon observations of his condition. After concluding that a constitutional violation had occurred, the court granted qualified immunity to the officers since prior to this decision, the law on hog tying of persons with diminished capacities had not been clearly established.

The foregoing cases make clear that tactics in approaching and controlling the mentally ill and emotionally disturbed will be considered where an injury results and a lawsuit is brought. As such use of force training as well as training on use of restraints should include some discussion and scenarios for dealing with the mentally ill. Policy and training on this issue should limit the ability of a plaintiff’s attorney to claim that an agency or individual trainer has been deliberately indifferent to training in this critical task.

Failure to Train Policies

In dealing with policy, agencies must recognize that in order for policy to protect an agency from liability, an agency must provide training for the policy before a court will recognize its implementation.*17 In Munger, officers in Montana were called to a bar for an intoxicated and unruly patron, Lance Munger. When the officers arrived they found Munger outside the bar, however, Lance Munger followed the officers back into the bar. The officers then ejected Lance Munger from the bar and prohibited him from returning as well as prohibiting him from going to his vehicle. The temperature outside was 11º with a wind chill factor of minus 20º-25º. Lance Munger was wearing only a T-shirt. After Munger walked off, the officers went looking for him because they found his coat and recognized the danger of the cold weather. Munger died in an alley of hypothermia.

In dealing with the “duty to protect” issue, the court concluded that the officers in this case had created the danger to Munger by ejecting him and not allowing him to return or go to his car on this frigid night. The court concluded that the officers had affirmatively placed Munger in a position of danger.

In analyzing the agency liability claim, the court cited evidence presented by the plaintiff that “it was the custom of the defendants to offer assistance to intoxicated persons, by taking those persons home, to another location, or as a last resort, to the law enforcement center so they could sleep it off, without making an arrest or any formal charges.” The Glasgow Police Department argued, since they had such a custom or policy against what the officers did in this case, there should be no agency liability. The court rejected this claim after finding that the plaintiffs provided sufficient evidence, for purposes of summary judgment, that although the agency had such a policy or custom, they had failed to train officers in this policy or custom and thus was liable under a failure to train theory. The court asserted: “In our view, a custom and policy of helping intoxicated individuals could be in place and yet the departments could have failed to implement the policy because they did not train their officers adequately.”

Failure to Train/Off-Duty Action

The United States Court of Appeal for the 10th Circuit, in Brown v. Gray,*18 reviewed an off-duty police shooting. An officer involved in a road rage incident chased a man and shot him three times. The officer reported that the man had pointed a gun at him.

At issue in the case was a policy that required officers to be “always armed and always on duty.” It should be noted that while few agencies still maintain this policy, many agencies have a custom of off-duty officers being always armed and always on duty. Do policy makers know that their officers carry firearms while off-duty? Do policy makers know that their off- duty officers who witness a crime against a person (for example, a hand-bag snatch from an elderly woman), is likely to take police action. If the answer to these questions is yes, then the agency could be found to have notice of a custom of being always armed and always on duty which has the force of policy.

Although the Denver Police Department had the policy requiring officers to be always armed and always on-duty, the agency did not conduct training on the use of force in the context of off-duty action. A captain from the Denver Police Department testified that the agency chose consciously not to distinguish off-duty from on-duty use of force because the two were identical. A police practices expert testified that the two circumstances were very different and there should have been distinct training for the off-duty circumstance.

How are the two different? One simply has to consider an officer’s use of force continuum in these distinct situations. While on-duty an officer has the command presence of his or her uniform; hands-soft and hard; pepper-spray; handcuffs; an impact weapons; bullet-proof vest; available back-up officers and his or her firearm. While off-duty an officer has his or her hands and their firearm. Certainly the use of force issues change.

This is another area that training officers can cover in the context of use of force to make officers aware of these distinctions. By conducting such training, the trainer will make a failure to train claim on this issue difficult for a plaintiff to make and thereby reduce agency exposure to liability.

Failure to Train/ Warrant Execution

Officers must be trained for the recurring tasks which the particular officers may face. The training a particular officer must receive will be determined by the officer’s assignment. For example, a rookie officer that is not allowed to draft search warrants would not need to be trained in the drafting of search warrants, whereas a detective that will be regularly drafting search warrants must be trained for this task. 

Taylor v. County of Berks,*19 provides an example of agency liability for failing to train officers for a specific task. The case revolved around the execution of a search warrant. On May 6, 2000, Ernestine Taylor was looking out the rear window of her home at 319 Moss Street when she observed a squad of police officers approaching her rear door. Recognizing that the officers were about to break down her door, she began yelling that officers were at the wrong house. The officers demanded that she open her door, but by the time she got downstairs the officers had struck the door several times, splintering it. The officer then held Taylor at gunpoint while they began searching the house. The officers left after they received word via the police radio that they had gone to the wrong house and they should have been at 317 Moss Street.

Taylor filed a lawsuit alleging, among other things, that the officers had not been properly trained to verify the location named in the warrant before forcing entry into a home. The city sought to be dismissed from the lawsuit arguing that Taylor could not prove that the city had a policy or practice of knocking down the doors of incorrect houses. The court asserted that the city had failed to address Taylor’s failure to train allegation. In its review, the court noted that the department’s policy made “no mention of a requirement that, or a procedure by which, officers verify that they are at the correct location before doing damage to a home. Given that Berks County officers perform raids in backyards of rowhouses where there are not numbers and where it is easy to mistake one home from another, a reasonable jury could conclude that the [city’s] failure to train its officers to verify their location constitutes deliberate indifference as to whether the officers violate citizen’s rights by entering their homes illegally.

Taylor makes several propositions clear. First, officers must be trained for the recurring tasks they are likely to face. Second, the training may vary from assignment to assignment. Third, officers who are transferred into a new assignment that has differing tasks must receive training on any new tasks that may lead to third party constitutional or tort injuries. This training must take place before they are faced with the new task-remember- is the officer faced with making a decision of the type that training would better prepare the officer to make? If yes, then training is required. Finally, it should be recognized that there may be specific training issues that are unique to a particular department or a particular demographic circumstance. For example, the difficulty in distinguishing the rowhouses, cited by the court in this case would not be an issue in many agencies where there simply are no rowhouses.


1 City of Canton v Harris, 489 U.S. 378 (1989).back
2 Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992).back
3 See, Paul v. City of Altus, No. 96- 6376 (10th Cir. 1998).back
4 See, Gabriel v. City of Plano, 202 F.3d 741 (5th Cir. 2000).back
5 Monell v. Department of Social Services, 436 U.S. 658 (1978).back
6 Popow v. City of Margate, 476 F.Supp. 1237 (N.J. 1979).back
7 Zuchel v. Denver, 997 F.2d 730 (10th Cir. 1993).back
8 Young v. City of Providence, 2004 U.S. Dist. LEXIS 1847 (R.I. 2004).back
9 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.”)back
10 Allen v. City of Muskogee, 119 F.3d 837 (10th Cir. 1997) and Carr v. City of Oklahoma City, 337 F.3d 1221 (10th Cir. 2003).back
11 Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997).back
12 Carr v. City of Oklahoma City, 337 F.3d 1221 (10th Cir. 2003).back
13 National Instructor Gary Barney (Chief [ret.] of Carmel, Indiana) who conducts law enforcement training nationally on “Confronting the Mentally Ill” for Public Agency Training Council, reports that in an informal survey conducted in his classes it is reported that among agencies attending his classes 1 in 30 to 1 in 40 are actually conducting this type of training.back
14 Gaddis v. Redford Township and City of Dearborn Heights, 364 F.3d 763 (6th Cir. 2004).back
15 Herrera v. Las Vegas Metropolitan Police Department, 298 F.Supp 2d 1043 (Dist. Nevada 2004).back
16 Cruz v. Laramie, 239 F.3d 1183 (10th Cir. 2001)back
17 See, Munger v. City of Glasgow, 227 F.3d 1082 (9th Cir. 2000).back
18 Brown v. Gray, 227 F.3d 1278 (10th Cir. 2000). back
19 Taylor v. County of Berks, 2003 U.S. Dist. LEXIS 23699 (E.D. PA. 2003).back

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