On September 29, 2020, the Eleventh Circuit Court of Appeals decided Cooper v. Rutehrford[i], in which the court examined whether a sheriff, in his official capacity, was entitled to summary judgment from an excessive force lawsuit for failure to train his deputies. In Cooper,
Joann Cooper and her children were in their car in the drive-through lane of a Wendy’s restaurant in Jacksonville when a bank robbery suspect, with gun in hand, forced his way into the car. During an ensuing shootout, Jacksonville police officers fired dozens of shots at the car, and Ms. Cooper and her son were both seriously injured by the gunfire.[ii]
Cooper filed suit and alleged that the sheriff and his deputies violated her and her son’s Fourth and Fourteenth Amendment rights. She also alleged state claims under Florida law for negligence and battery. Ultimately, the district court and granted qualified immunity for the deputies and summary judgment in favor of the sheriff. Further, the district court concluded the sheriff was entitled to sovereign immunity on the state law claims because the deputies were acting in their discretionary capacity.
Cooper then appealed the grant of summary judgment in favor of the sheriff to the Eleventh Circuit Court of Appeals and alleged that the Jacksonville Sheriff’s Office was deliberately indifferent and failed to train its deputies regarding discharge of firearms when innocent bystanders are present. Cooper argued that the need to train officers in that area is obvious, and the potential for killing or injuring an innocent bystander is high, and as such, the failure to train amounted to deliberate indifference to the rights of bystanders, such as she and her son.
The Eleventh Circuit first examined the law that relates to municipal liability, or liability for local government entities, to include sheriff’s offices. The court noted that, when a citizen makes an “official capacity claim,” this is a suit against the sovereign, or the government entity, such as a county, municipality or sheriff’s office. The court also noted
A municipality cannot be “vicariously liable under § 1983 for [its] employees’ actions.” Connick v.Thompson, 563 U.S. 51, 60 (2011). Instead, “[a] municipality or other local government may be liable under [§ 1983] if the governmental body itself ‘subjects’ a person to a deprivation of rights or ’causes’ a person ‘to be subjected’ to such deprivation.” Id. (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978)). Specifically, a plaintiff “must ultimately prove that the [municipality] had a policy, custom, or practice that caused [*4] the deprivation.” Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016). Liability will not attach “unless a municipal ‘policy’ or ‘custom’ is the moving force behind the constitutional violation.” City of Canton v. Harris, 489 U.S. 378, 379 (1989).[iii]
Thus, in order for the sheriff’s office to be liable, there must be a policy, custom or practice of the sheriff’s office that caused the injury and the injury must amount to a constitutional violation.
One way to show that a sheriff’s office or police department had a policy, custom or practice, is to show that the law enforcement agency was deliberately indifferent to a known training need and that deliberate indifference resulted in a constitutional violation to a person. It is important to note that the need to train in a particular aspect of law enforcement must be known to the final policy maker, which is usually the sheriff or the chief of police. Regarding deliberate indifference, the Eleventh Circuit stated
[T]he inadequacy of police training may serve as the basis for § 1983 [municipal] liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. . . .Only where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” Harris, 489 U.S. at 388-89.
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action. Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that [*6] program.” Connick, 563 U.S. at 61 (citations and internal quotation marks omitted). See also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)[iv]
While typically, the final policymaker must be on notice that there is a need for additional training based upon a pattern of violations that indicate a need to train, the court observed that there is a possibility that a need to train could be so obvious that the notice is inferred. The court stated
Nevertheless, there may be “rare” failure to train cases in which “the unconstitutional consequences of failing to train [are] so patently obvious” that a municipality may be liable under § 1983 “without proof of a pre-existing pattern of violations.” Id. at 64. The Supreme Court has theorized that one such scenario may be a failure to train officers who are armed on how to deal with fleeing felons, given the frequency of that particular occurrence. See id. at 63-64.[v]
The court then set out to analyze whether Cooper met the burden by showing sufficient evidence to send the case to a jury. First, the court noted that Cooper failed to present any evidence of prior similar incidents where bystanders or hostages were shot by deputies from the Jacksonville Sheriff’s Office. The court then held that because there was no history of “widespread abuse” that would put the sheriff on notice of a need to train in this area, there is no jury question.
Second, the court examined whether this was an “obvious” need to train such that a history of widespread abuse is not required. The court noted that the Jacksonville Sheriff’s Office has a policy that requires deputies to consider the presence of innocent bystanders when using deadly force and cautions them to avoid unnecessary danger. Specifically, the court stated
[T]he Jacksonville Sheriff’s Office had a policy generally providing that officers should not discharge their weapons into moving vehicles except as a last resort (i.e., when all other opportunities have been exhausted, to prevent death or great bodily harm to the officer or other persons, or to prevent the escape of a fleeing felon who would pose an imminent threat of death or great bodily harm). That same policy instructed officers to “exercise reasonable caution in order to avoid unnecessarily endangering the lives of bystanders. When possible, officers should give consideration to the backdrop, bystanders, and location.” See D.E. 115-1 at 48-49. We recognize that this general admonition did not specifically address the discharge of weapons in a hostage situation involving a non-moving vehicle. But given the general instruction that officers should use reasonable caution to avoid unnecessary danger to others when deciding whether to discharge their weapons, Ms. Cooper and her son cannot create a jury question on deliberate indifference.
The court also cited a case from the Seventh Circuit, Ross v. Town of Austin[vi], in which the court held that
1983 [does not] impose on municipalities [a] constitutional duty to provide law enforcement officers with advanced, specialized training [e.g., hostage negotiation and tactical combat training] based upon a general history of criminal activity [e.g., armed robberies] in the community.[vii]
In Cooper’s case, the court noted that, while two deputies were administratively found to have violated the sheriff’s office policy on “Response to Resistance” which resulted in their resignations in lieu of termination, that alone did not establish evidence need to create a question for a jury regarding the liability of the sheriff’s office.
As such, the Eleventh Circuit affirmed the grant of summary judgment for the sheriff in his official capacity.
The court also affirmed the grant of sovereign immunity for the sheriff on the state law negligence and battery claims. The courts reasoned that the government’s response to an emergency is a “discretionary power,” and Florida law does not provide a waiver of sovereign immunity when the act for which the government is being sued is a discretionary act.
Therefore, the court of appeals affirmed the decision of the district court.
[i] No. 17-15535 (11th Cir. Decided September 29, 2020)
[ii] Id. at 1
[iii] Id. at 3-4 (emphasis added)
[iv] Id. at 5-6 (emphasis added)
[v] Id. at 6 (emphasis added)
[vi] 343 F.3d 915, 918 (7th Cir. 2003)
[vii] Id. (emphasis added)