On March 10, 2021, the Eleventh Circuit Court of Appeals decided Favors v. City of Atlanta[i], in which the court discussed municipal liability pertaining to officer’s use of force against occupants of a fleeing vehicle.  The relevant facts of Favors, taken directly from the case, are as follows:

On a Saturday night in 2015, Favors visited an adult entertainment club in Atlanta with a group of people. Emmanuel Thompson was on patrol as an officer for the Atlanta Police Department (“APD”) and was parked across the street from the venue in a squad car. The evening ended with Thompson shooting Favors, resulting in physical injuries.

The trouble began when a male patron took another patron’s money, including a Styrofoam to-go plate containing over $600 in cash, and ran out of the building. The entertainment venue’s head of security alerted Thompson of the theft, and Thompson left his squad car to search for the suspect.

Around this time, Favors also left the venue and got into the front passenger seat of a white Chevrolet Traverse. A security officer saw the suspect enter the same white Chevrolet and sit in the backseat. As the Chevrolet began to pull out of the parking lot, the security officer ran alongside the vehicle to prevent it from leaving. The vehicle did not stop. While the car continued its exit from the parking lot, Thompson, still on foot, discharged his firearm five times at the vehicle. Three bullets struck the car. The two remaining bullets pierced the front passenger door and struck Favors in the right thigh and ankle.

The Chevrolet soon crashed into another vehicle. The driver and the suspect fled on foot, while Favors remained at the site of the crash. Thompson arrested Favors, who was then transported to the hospital for treatment.

The Atlanta Police Department’s Office of Professional Standards (“OPS”) investigated the shooting. Although Thompson claimed he fired at the vehicle to protect the security guard and other people in the parking lot, OPS found that the video footage of the incident contradicted Thompson’s rationale. Instead, OPS found “no evidence to support any articulable threat of violence towards” Thompson, or, for that matter, “anyone present.” OPS concluded that Thompson lacked justification for shooting at the vehicle and recommended he be fired. Not long after OPS issued its findings, Thompson resigned from the APD.[ii]

Favors subsequently sued the City of Atlanta for violating his rights under the Fourth Amendment, arguing that their failure to train officers regarding the use of deadly force against occupants of fleeing vehicles caused the constitutional violation.  Ultimately, the district court granted summary judgment in favor of the City and dismissed the suit.  The district court held that Favors failed to establish that the City was deliberately indifferent to the training needs of its officers.  Favors appealed to the Eleventh Circuit Court of Appeals.

The Municipal Liability Standard

In order to hold a municipality liable for acts of its employees, including police officers, a plaintiff must show that “a municipal policy or custom caused the plaintiff’s injury.”[iii]  The court of appeals further explained

[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).[iv]

The court then set out to analyze each of the three elements listed above for Favor’s case.

(1) Were Favor’s Constitutional Rights Violated?

The court of appeals noted that the district held, and the City did not contest, that Favor’s rights under the Fourth Amendment were violated when Thompson shot him without probable cause that he or anyone in the vehicle posed a threat of harm to the officer or others.  The court of appeals noted that they have previously held that

Using deadly force in a situation that clearly would not justify its use is unreasonable under the Fourth Amendment.[v]

As such, the first element of the test for municipal liability was satisfied.

(2) Did the City Have a Policy or Custom that Amounted to Deliberate Indifference to Favor’s Constitutional Rights?

The court first discussed the legal standard that needed to be met to establish “deliberate indifference.”  The court of appeals stated

To establish deliberate indifference, “a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). A city may be held liable under § 1983 for inadequate police training “where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”   City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989).[vi]

Thus, a plaintiff must show (1) that the municipality was on notice of a need to train on a particular topic and (2) they were deliberately indifferent to that need, or in other words, made a choice not to train on the topic.

(a) Was the City on Notice of a Need to Train on the Topic of Using Deadly Force to Apprehend Suspects in Vehicles?

The court then set out to determine if the City was on notice of a need to train on the topic of using deadly force to apprehend suspects that are occupants of vehicles.  Regarding “notice,” the court of appeals observed that the district court held the City was on notice based upon

[R]epeated incidents of APD officers shooting into vehicles, including two reported incidents (and a potential unreported incident) in 2013, two in 2014, and six in 2015, the year Thompson shot Favors.[vii]

The court of appeals also noted that the City did not contest the holding that they were had notice of the need to training on the topic of using deadly force to apprehend suspects in vehicles.  Therefore, the court of appeals held that the City was on notice of this need to train.

(b) Was the City Deliberately Indifferent to the Need to Train?

The district court held that the City was not deliberately indifferent based upon the extra hours of general use of force training police recruits receive in the police academy and the fact that they did yearly in-service training.  However, the court of appeals stated

[T]he question is whether such training addresses the scenario the City was on notice to prepare for—the fact that its police officers would be “required to deal with suspects attempting to flee in vehicles and need to know when the use of deadly force is appropriate.”  As explained in Canton, “[i]n 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.489 U.S. at 390, 109 S. Ct. at 1206. . . deliberate indifference can be shown by “evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action.” [viii]

The court of appeals then examined the evidence Favors presented to demonstrate deliberate indifference.  First, there was evidence the City failed to provide the officer with annual training on the circumstances that justify the use of deadly force under O.C.G.A. § 17-4-20.  Second, the City failed to provide the officer with a copy of the statute as required in O.C.G.A. § 17-4-20(e).  Third, the year of Favors’ shooting, 2015, the City had six incidents of officers shooting into vehicles.  Furthermore, the court of appeals noted, in those incidents, the reports did not contain information about the reason for the shootings or supervisor’s evaluations of the shootings.  The court also noted that the reports for 2013 and 2014 were also lacking similar information.  Fourth, Favors provided expert witness testimony that “proper documentation and review” of use of force incidents are “important in reducing the number of such occurrences.”[ix]  Fifth, while the City pointed to the “Vehicle Pursuit Policy” as addressing this issue, the court of appeals noted that that policy was applicable to “vehicle on vehicle” pursuits and was not applicable in a situation like Favors’ where the officer was on foot.  Sixth, a witness on behalf of the City testified that the police department “provides no academy or in-service training specifically addressing the circumstances that would justify an officer shooting into a moving vehicle.”[x]  The court then noted that the expert report provided by Favors created a genuine dispute of material facts.

Additionally, the court considered guidance from the Supreme Court.  The court stated

As the Supreme Court has recognized, the use of force in pursuing suspects is a scenario that City policymakers should know to prepare for:

[C]ity policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force can be said to be “so obvious,” that failure to do so could properly be characterized as “deliberate indifference” to constitutional rights. Canton, 489 U.S. at 390 n.10, 109 S. Ct. at 1205 n.10 (citation omitted).[xi]

The court of appeals then held that the question of deliberate indifference is a question that must be decided by a jury; therefore, summary judgment is inappropriate.

(3) Did the Custom or Policy Cause Favors’ Constitutional Violation?

The final question for the court regarding municipal liability is whether the policy or custom of the City caused the violation of Favors’ rights.  Stated another way,

The causation prong asks whether the injury would have been avoided “had the employee been trained under a program that was not deficient in the identified respect.” Canton, 489 U.S. at 391, 109 S. Ct. at 1206.[xii]

While the City argued there was no link between the lack of training and Favors’ injury, the court of appeals credited the expert witnesses testimony on the issue.  The court stated

Favors provided evidence that Thompson was not trained in the use of less-than-lethal force in the 22 months leading up to the shooting. Favors’s expert stated that this lack of training “possibly caused” Thompson to resort to lethal force. He opined that Thompson’s “immediate[] resort[] to a lethal force option” reflected the fact that the only training besides defensive tactics that Thompson had received since he graduated from the police academy was to use lethal force. The expert witness stated that officers typically “fall back” on their training, “especially in a time of a real or perceived crisis.”[xiii]

Thus, the court held that the expert witness’s opinion provided an adequate basis for a jury to find causation in Favors’ case.

Therefore, the court of appeals vacated the grant of summary judgment for the City and sent the case back to the district court.

Practice Pointers:

Agencies should be mindful to train officers on situations where it is appropriate and not appropriate to use deadly force to apprehend suspects in vehicles.

Agencies should also be mindful of specific training requirements required by their state.  For example, in Georgia, O.C.G.A. § 17-4-20(e) states the following:

Each peace officer shall be provided with a copy of this Code section. Training regarding elder abuse, abuse of vulnerable adults, and the requirements of this Code section should be offered as part of at least one in-service training program each year conducted by or on behalf of each law enforcement department and agency in this state.

Thus, officers must be trained in the requirements of O.C.G.A. § 17-4-20, to include subsection (b), which contains the requirements related to use of deadly force to apprehend suspects.  Officers must also be provided a copy of this code section.



[i] No. 20-12944 (11th Cir. Decided March 10, 2021 Unpublished )

[ii] Id. at 2-3

[iii] Id. at 7

[iv] Id. (emphasis added)

[v] Id. at 8 (quoting Mercado v. City of Orlando, 407 F.3d 1152, 1160 (11th Cir. 2005)

[vi] Id. at 8-9 (emphasis added)

[vii] Id. at 9

[viii] Id. at 13-14 (emphasis added)

[ix] Id. at 15

[x] Id. at 16

[xi] Id. at 17 (emphasis added)

[xii] Id. at 18 (emphasis added)

[xiii] Id. at 18-19

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