So after Bill Blowers and I discussed LE training on a ModCast recently, I got several questions regarding case law and how it applies to training and where liabilities exist – so rather than answer a couple people, I’m going to address those questions and issues in this article.
This article will serve you especially well if you’re involved in the training world at all for LE and trying to advance training, but hitting some roadblocks with the administration.
First and foremost, if you are in any kind of training capacity for LE, you need to become intimately familiar with the term “Deliberate Indifference”. You are not always going to get your way when it comes to training, but this term will serve you well in two ways. The first way is, when you shed light on the fact that deliberate indifference exists within the organization, admin folks take notice. Secondly, making a claim of deliberate indifference will often shift the liability from you when claims are made, especially if you have documentation (emails, denied requests, etc). So, what the does Deliberate Indifference mean?….Glad you asked.
Deliberate indifference is defined as requiring (1) an “awareness of facts from which the inference could be drawn that a substantial risk of serious harm exists” and (2) the actual “drawing of the inference.” Elliott v. Jones, 2009 U.S. Dist. LEXIS 91125 (N.D. Fla. Sept. 1, 2009)
And according to Merriam-Webster, the definition of Inference is:
- the act or process of reaching a conclusion about something from known facts or evidence
- a conclusion or opinion that is formed because of known facts or evidence
Also, there are two theories which exist for liability, Common Law Negligence and Violation of Civil Rights 42 U.S.C. Sec. 1983.
With those two being said, here are the factors that most litigation on officers and departments are based off of:
1) The agency and/or instructors omitted critical subjects from training curriculum.
2) Failed to train the trainees to a sufficient level of proficiency.
3) Taught obsolete and/or dangerous techniques or policies.
4) The department had a deliberate policy of improper or bad training.
5) The individuals responsible for department training acted with reckless disregard for the inadequacies of the training program.
So now that we have that out of the way and you understand what deliberate indifference is and what the litigation factors are, let’s take a look at some landmark case laws regarding Law Enforcement training. To not conform to these case laws and creating a training curriculum or environment which blatantly disregards these known rulings can create a situation which leads to deliberate indifference on either you as the trainer, or the administration – and both open you up to liability and litigation depending on the circumstances.
Below is a review of what I consider to be landmark case laws on which we as trainers should base the foundation of our training on.
Tuttle vs. Oklahoma, 728 F. 2d 456 (10TH CIR 1984)
This case stemmed from an Oklahoma City PD officer that responded to robbery in progress call at a bar. This call ultimately turned out to be false and it is speculated that the call was made by Tuttle himself. After the officer discovered that no robbery was being committed upon arrival, he began to investigate further. To make a long story short, Tuttle matched the description provided by dispatch and attempted to exit the bar despite the officer’s commands to stop. Once outside the bar, the Officer found Tuttle crouched next to a car and fatally shot him. The Officer claimed that he feared Tuttle was reaching for a firearm and the plaintiff, which was Tuttle’s wife, claimed that it was an unjustified shooting by an inadequately trained officer.
This case law shed light on the importance of creating a valid firearms training program and further elaborating that one “bad apple” will not show deliberate indifference on behalf of the agency. The court strongly suggested that the agency needs to incorporate realistic firearms training program incorporating things such as low light, shotgun training, moving targets, mindset, shoot / don’t shoot scenarios and several others. It was discovered that the Officer’s training regarding armed robbery response was a short video he viewed, despite being as the court noted, one of the most dangerous calls that an officer can respond too.
To stay on the up and up with this case law, there are several options I feel that can help. The first would be a reality based training event that incorporates role players. This type of training would include Force On Force (FOF). I would produce scenarios that we would encounter in real life and often vary the outcomes based on how the officer responds. If the officer is sloppy in their techniques and officer safety protocols, I allow the role players to do their thing. I don’t believe in setting up constant no wins or having scenarios that are just flat out unrealistic. In the exact case of Tuttle, I have a strong suspicion that had the officer been trained with a reality based type training where he had documented instances in training where he responded to various types of armed robbery calls that the courts wouldn’t have gotten this far with the case. As cops, we’re humans and mistakes will be made despite the amount of training and experience, however when mistakes are made and loopholes exist that people can point out as being the root cause of it – case laws like these happen.
Popow vs. City of Margate, 476 F SUPP. 1237 (D.N.J. 1979)
In this case, an officer was chasing a suspected kidnapper through a residential area and the officer fired shots at him. The shots missed and subsequently killed Mr. Popow, who was not involved. When the court evaluated the City’s firearms training program they found several inadequacies. The court noted that the officer was trained on deadly force 10 years ago in the academy and that his firearms training consisted of going to the range twice a year. The court noted however, that there was no training on low light, moving targets, or firing in residential areas. Being as the city of Margate was a largely residential area, the court concluded that the officers of the Margate Police Department could have to pursue (moving targets) a subject at night (low light) through a residential area. The court also noted the importance of doing this training on a continual basis. Because there was no training offered by the department to its officers for these types of situations, the court decided that the jury could find the training provided by the agency to be grossly inadequate.
This training should be addressed on the range and officers need to understand the adverse effects of running and shooting. There is shooting while moving and then shooting while running, they are two different animals, with the latter being a no go in most instances. This should be addressed with officers knowing what their backstop is. People get wrapped up in square range training, because they face the berms always when they shoot or mess with a weapon – so shifting their focal plane beyond the target to ensure their backstop is clear is a lost art. What good did you do if you put the bad guy down who was trying to kill innocent people, but you smoked three civilians yourself in the area behind him in the process? There are a couple ways to solve this. The first is to make people understand that there is no berm in real life. A berm is simply an administrative area designed to absorb the impact of a round in training. A safe area however is a location where the weapon can be pointed so that if the weapon discharges, whatever the round strikes will have minimal to no adverse effects.
I don’t do much with the berm when it comes to the range, other than require officers to shoot towards it when they actually fire. If they need to load, unlike most range masters, I have no qualms if they step out in the grass area, point their weapon at the ground and load their weapon. Same with malfunctions on the line, if you gotta point it at the ground away from someone’s feet or being close to them, cool, it’s a safe area. Remember, there is no berm in real life and what this also does is get the officer looking past their muzzle to see exactly what the backstop is before they go to work. When they get that ingrained, it becomes a subconscious action and they add a focal plane to their aiming sequence. For pistol, they would now have 4 focal planes. I also run stress courses where I introduce oblique and obscure targets that force the officer to change their position to get a shot without striking a target behind their intended target. Again, that gets them thinking and not going into auto pilot because they know there is always a berm and don’t need to worry about any object being between the piece of paper they are slaying and the berm.
Lastly: Force on Force has a lot of value for this, because now I can introduce living breathing 3D targets and have a bad guy introduced into the mix of the crowd. If the officer makes a mistake, it will cause an innocent role player some pain, but it can be addressed right then and there instead of waiting for the mistake to happen in real life. I’ll say it again: you’re getting officers into the habit of looking past their gun and target. They will slowly begin to realize that a lot of backdrop problems can be solved by changing your angle to the target.
And for this specific case law, set up a foot chase scenario where deadly force is justified and if need be, show the adverse effects of trying to hit a sprinting target while you are sprinting….yeah, tell the officer I said good luck. Once you show them the wrong, it’s important to show them the right and then have them practice that new technique.
Zuchel vs. City and County of Denver, Colorado (997 F. 2d 730, 10th Circuit Court)
This case started with officers responding to a disturbance call at a fast food restaurant. Upon arrival, the officers located Zuchel behind the restaurant arguing with a set of teenagers. As the officers approached, someone yelled out that Zuchel had a knife. As soon as Zuchel turned around, an officer on scene fired 4 rounds striking Zuchel. Upon examination of this case, the court noted that the training for Denver Police Department officers at the time of Zuchel’s incident for deadly force consisted of a movie and a lecture. The court criticized the lack of “live” drills and other training to accompany the movie and lecture, thus they found the training provided by the department to be constitutionally inadequate. The court further ruled that the City of Denver was Deliberately Indifferent to its citizens and that the lack of training had a direct correlation to the shooting.
The key to this one is target discrimination. Not everyone we come across in real life or even draw our gun on needs to be shot, so why is it that way in training? It shouldn’t be. For live fire there are two drills I like to incorporate. The first one is scattering targets throughout the range at oblique angles, etc. The officer then will run to numerous positions of cover while I yell out target numbers/letters. The targets are randomly without thought numbered and lettered while setting up. This teaches the officer to get out of autopilot and actually evaluate the target before just slinging lead at that 2D piece of paper. The next one is paper targets that have pictures of people with different objects, some that justify deadly force and some that are something as simple as a soda can. Picture targets can cause people to split hairs and training value can be lost, because the actions and demeanor of a suspect can dictate our response regardless of what the object is, because we don’t have to always wait to respond based on your individual training and experience. This is where Graham v. Connor comes into play and something that you as a trainer should be intimately familiar with. The officer will be judged at the time the use of force occurred and not in hindsight, but training supports the “reasonable” test greatly. So with all that said, be careful in how you select your picture paper targets, because they are all not created equal, but as with the first drill mentioned, they get the officer used to taking a split second extra to evaluate the target before just shooting as they would do on any normal range day. It’s not always good to incorporate drills where deadly force justification is automatically implied at the sound of the buzzer.
If you shoot a subject who turned out to have a cell phone, but drew it in a rapid manner, etc, etc, your somewhat typical suicide by cop scenario, and its evaluated by a court, being able to show that the officer in question had rather extensive target discrimination training will help exonerate him because it will show that a deliberate indifference did not exist and that the suspects actions led to this; thus the court finding the actions by the officer to be reasonable as supported by Graham v Connor. If you have no training documented, both the officer and you as the trainer are gonna have a bumpy road ahead.
Monell vs. New York City (1978 Supreme Court Decision)
I included this article in the event that your administrators don’t believe they risk being sued. This case law allows individuals to file suit against local governments and their officials in their official capacity in the event of a Violation of Civil Rights, 42 U.S.C. Sec. 1983. They don’t walk on water and they aren’t immune.
City of Canton Ohio vs. Harris 489 U.S. 378 (1989)
This case involved an in custody handling of a subject. The background of this case isn’t as important, so I’m not gonna brief it. What is important is this snippet below.
In February 1989 the Supreme Court ruled that local governments can be liable for monetary damages when deliberate indifference to the need for training and failure to train officers result in constitutional violations.
An important note I would like to make regarding Force on Force is that if your agency is not using it, you are dead wrong. It is an amazing tool and is supported by case law. It doesn’t matter that the “old timers” didn’t use that stuff back in their day. They also didn’t have Tasers, in-car computers, and many other technological advancements seen today…but they use them now right? It forces officers to not just go through the motion when training, because if they do, they pay in pain. It also validates techniques and shows proficiency. Lastly, it incorporates stress on most street level officers that simply running a dude to death on the range before a drill cannot accomplish, so you can identify some weaknesses within that specific officer once the bees come out and address it there. Also, as with a lot of things in life, the more an officer is exposed to higher than normal levels of stress the more inoculated to it they become. It’s not a substitute for real life and the rush you get from responding to a legit “in progress” call, but it’s one hell of a supplement and helps in diagnosing training deficiencies on an agency level.
Below is a list of other important case laws regarding the use of force and the need for training:
- Rymer vs. Davis (754 F. 2d 198, 6th Circuit 1985)
- Lundren vs. McDaniel (814 F. 2d 600, 11th Circuit 1987)
- Acosta vs. City and County of San Fransico (83 F. 3d 1143, 9th Circuit 1996)
- Davis v. Mason County (WL 31291, 1991, 9th Circuit Court of Appeals)
- McCelland vs. Facteau 610 F. 2d 693 (1979)
- Voutour vs. Vitale, 761 F.2d 812 (1st Cir. 1985)
- McLeod vs. City of Philadelphia (U.S. District Ct., No. 94-7495, Oct. 6, 1995)
- Camacho vs. City of Cudahy (VC009187, La. Superior Ct., March 31, 1994)
These case law briefs that I put in were somewhat brief. This was done on purpose, because I want you as the trainer, LEO or whatever it is that your title is to do your own homework and formulate your own plan of action. I don’t want to give you a cut and paste type document to work with, because that will not help ensure you have these case laws and their importance engrained into your mind. I have however given you the groundwork to start the process and the case laws that will help you achieve your objective. I have also given you three examples of what would work to help overcome being an agency that is deliberately indifferent. With the examples above, use them often to the point of proficiency and once you do, turn the lights off and do them all over again. I have a huge issue with night shift officers that do all their training in day light, it’s asinine. Your audience can guide exactly how your training will be conducted. Low Light training is EXTREMELY important, it’s like a bonus for you, because if you can clear a room proficiently in the dark, you can sure as hell clear it in the day without problem and that analogy holds true for a lot of training when the lights are off versus on. You simply get more bang for your buck. And no – no one gives a fuck that you work day shift, you need some low light in your life.
As always, if you have questions, you guys know where to find me on Primary and Secondary. I will be more than happy, usually, to discuss these or elaborate further.
Lastly, drink milk and don’t run with scissors in your hands.
By: Matthew Shockey
*** Disclaimer: I am not an attorney, nor do I claim to be. I am also not a legal advisor or someone who is outright qualified to interpret case law. This write up is my interpretation of these relevant case laws and what they should mean to the average LE trainer and agency based on my training and experience as a full time LE trainer/LEO. If you have specific questions or have doubt, consult your local District Attorney’s Office. ***