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Connecticut Criminal Law Foundation, Inc.

Quality Training for Those Who Protect

South Windsor, Connecticut 860-648-0160

www.cclfinc.org

Chiefs Survival Program

Presented at the Legal Officers Section

by Elliot B. Spector, Esq,

International Assn. of Chiefs of Police, Inc.

2002 Annual Conference in Minneapolis

espector@sackspec.com

October 2002

Table of Contents

        Leatherman v. Tarrant Co. Narcotics Intelligence and Coord. Unit, 113 S.Ct. 1160 (1993)

        Negligent Hiring & Retention: Cmsnrs. of Bryan Co. v. Brown, 117 S.Ct. 1382 (1997)

        Morris v. Crawford County, 299 F.3d 919 (8th Cir. 2002)

        Training: Emerging Legal Standards for Failure to Train

        Ramifications of Failure to Train

        Equipment and Technologies

        Policy Case Examples

        Failure to Supervise

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113

S.Ct. 1160 (1993)

The Leatherman civil rights action arose out of two incidents. The first involved a search of a home that resulted in the shooting of the property owner's two dogs. The plaintiff also claimed that she and her son were stopped in their vehicle, which was surrounded by officers who threatened to shoot them. After finding nothing in the home, the officers allegedly lounged around the home for an hour, drinking, smoking, talking and laughing.

In the second incident, police officers allegedly raided the plaintiff's home, entering without knocking or identifying themselves. Then, without provocation, they beat the plaintiff, a sixty-four year old grandfather, who was at the time mourning the death of his wife who had died after a three-year battle with cancer.

Plaintiff made official capacity claims against several local officials, and a municipal liability claim based on a failure to train.

While the plaintiff's complaint set forth detailed facts concerning the police misconduct, it failed to state any facts supporting the inadequate training issue. The court of appeals affirmed the district court's dismissal of the claim against the municipality for failure to train, based on the plaintiff's failure to comply with the heightened pleading standard. The court found that the complaint failed to allege the requisite facts to establish a policy of inadequate training. The plaintiff claimed that the municipality failed to formulate and implement an adequate policy to train its officers on the proper manner to execute search warrants, and respond when confronted by family dogs. This boilerplate complaint specified no further facts with regard to the failure to train, or any facts relating to a pattern of similar incidents in which citizens were injured, or any proof of an existing unconstitutional municipal policy.

In ruling that the heightened pleading requirement was necessary, the appeals court made reference to the enormous expense involved in today's litigation, the heavy cost in responding to even baseless legal actions and language in Rule 11 requiring a reasonable inquiry into the facts of the case by an attorney before bringing an action. In overturning the appellate court, the Supreme Court ruled that no more than, a short and plain statement of the claim showing that the pleader is entitled to relief , in accordance with a federal rules notice pleading is required to state a civil rights claim against a municipality. The court apparently felt constrained to make this decision in accordance with the federal rules, but seemed to suggest that a modification of these rules might be appropriate to require added specificity for such claims.

Negligent Hiring & Retention

Supreme Court Clarifies When Chief May

Be Held Liable For A Single Policy Decision

Commissioners of Bryan County v. Brown, 117 S.Ct. 1382 (1997)

If any of you picked up the newspaper on April 29, 1997, and read that chiefs cannot be held liable for hiring decisions and/or Supreme Court renders decision reducing liability risks in excessive use of force cases, throw away the article, and heed the lesson that you cannot get your law from the media.

What the Supreme Court did in the case of Commissioners of Bryan County v. Brown, 117 S.Ct. 1382 (1997), was to explain how a municipality may be liable for a single policy decision. The case involved a successful underlying decision for false arrest and excessive use of force based in part on the sheriffs hiring of his sons nephew after having, in hand, (if not mind), a record of driving infractions and misdemeanors including assault and battery, resisting arrest and public drunkenness. In the underlying case, the federal appellate court held that the failure to conduct a good faith investigation of the prospective employee amounted to the sheriff deliberately closing his eyes to the applicants background. Such indifferent behavior cannot be tolerated when the prospective applicant will be employed in a position of trust and authority. Brown v. Bryan County, OK, 53 F.3d 1410 (5th Cir. 1995).

So how can a municipality be held liable for the decision of a policy-maker? The general rule is that a policy or custom of the municipality must be the moving force behind the constitutional violation. Generally policies and customs are thought of as ongoing circumstances rather than single decisions. For example, in Garner v. Memphis Police Department, 8 F.3d 358 (6th Cir. 1993), the court held that the City specifically trained its officers to exceed constitutional limitations by authorizing the use of deadly force to apprehend non-dangerous fleeing felons. Therefore, liability might be found as this policy, which applied to all officers on an ongoing basis, could very well be considered the moving force behind the constitutional violation. These types of constitutional liabilities are generally well understood. What may be more confusing is how a single act of a policy-maker can constitute a policy, so as to lead to municipal liability. Below are the three ways described in which a single act may create such liability:

1) When the policy-makers act itself violates the constitutional rights of the plaintiff. For example, if a chief, a police commission, or some other legislative body made a decision to discharge an employee without a hearing, Owen v. Independence, 445 U.S. 622 (1980), or if a chief canceled a license permit or denied a permit based on the content of the plaintiffs speech protected by the First Amendment. Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). In these examples, it is the direct action of the policy-maker that resulted in the constitutional harm.

2) When the policy-maker directs the action of an employee, which causes a constitutional harm. For example, if a policy-maker advised or directed officers to forcibly enter a premises, contrary to law. Pembaur v. Cincinnati, 475 U.S. 469 (1986). In this example, the policy-maker caused a constitutional violation by directing another to commit an unlawful act.

3) When the policy-makers facially lawful decision results in a constitutional harm. This is the issue that presented itself in the Bryan County case. The sheriffs hiring decision was itself legal, and he did not authorize Burns to use excessive force. Under these circumstances plaintiffs must show that the policy-maker deliberately took action, which was the moving force behind the constitutional violation. In order to succeed in such a claim, plaintiff must also prove the particular constitutional harm suffered, was a plainly obvious consequence of the decision.

Applying this standard to the facts of this case, one would have to find that when the sheriff hired the offending officer, after looking at his motor vehicle and misdemeanor record, it would be plainly obvious that this officer would use excessive force against a citizen.

Is it possible for a chief to be held liable for hiring officers not fit to perform the duties of an officer? The answer is certainly, yes. If a plaintiff can show there is a policy of inadequate screening, or if a chief hired an individual he knew had a substantial history of violent behavior and/or psychological tests indicated serious violent propensities, then a jury might find that the chiefs hiring decision amounted to deliberate indifference to the plainly obvious consequence that this candidates violent propensities would manifest itself in the use of excessive force.

In summary, the Supreme Court has not eliminated the possibility of liability for hiring decisions, but it sets a very high standard of culpability. If hiring practices are generally appropriate and screen out potentially bad cops, the chance of liability is extremely remote, even if some bad individuals make it through the screening process.

Morris v. Crawford County, 299 F.3d 919 (8^th Cir. 2002)

Plaintiff who had been arrested for DWI and disorderly conduct was allegedly yelling and banging on his cell door. Deputies brought him to a new cell where Deputy Ruiz severed Morris intestine with a knee drop. Morris contended that the sheriff acted with deliberate indifference in hiring Ruiz.

Bryan County teaches us that liability may not be imposed unless a plaintiff directly links the applicants background with the risk that, if hired, that applicant would use excessive force. The connection between the background of the particular applicant and the specific constitutional violation alleged must be strong.

Ruiz Arrest Record: Felony arrest reduced to a misdemeanor after paying a fine and ultimately expunged.

Work Background: Slapping an inmate in 1996; mishandling inmates money and property; mouthing off to fellow deputies and inviting one to fight; disobeying a nurse during which he was heard to say he was going to knock that bitch out; insubordination; cursing other employees and failing to adhere to rules regarding leaving his post and failing to answer the radio.

Personal Relationship Complaints: Ex-wife alleged in 1997 that he ran her off the road, tore a necklace off her neck and pushed her. Girlfriend claimed in 1999 he grabbed her arm and threw her and threatened to assault her. Both obtained ex-parte protective orders.

Plaintiff also put forward evidence that a jail administrator had told the sheriff that Ruiz would cause trouble if hired and an expert witness testified that violent or abusive behavior of any kind indicates a strong potential for violent behavior against persons in custody.

The court found that this was not sufficient evidence to create a genuine issue of material fact that the plainly obvious consequence of re-hiring Deputy Ruiz would be his use of excessive force against an inmate.

Training

Emerging Legal Standards for Failure to Train

The ramifications related to inadequate training are about to skyrocket. It is safe to say that plaintiffs counsel will take great advantage of the Supreme Courts language in Board of County Commissioners v. Brown, 520 U.S. 397, (1997) (suggesting liability for failure to train a single officer), and failure to train will soon become the theory of choice in liability claims against governmental entities. It used to be that if a police department had a generally good training program, which met basic State standards, they would be safe from such claims. Now, plaintiffs attorneys will take the effort to plow through individual defendant officers training records to find some deficiency related to their clients claimed injury and if they want to spend a few bucks, theyll hire some expert to identify these training deficiencies.

A Little History

In Oklahoma v. Tuttle 471U.S. 808 (1985) (Inadequate Robbery Response Training) the Supreme Court held that a single incident of unconstitutional activity is insufficient to impose municipal liability unless the policy itself is unconstitutional. In the context of Tuttle, a municipality could not be held liable unless it had a history of unconstitutional robbery responses or it specifically trained its officers to respond in a manner, which would result in a constitutional violation.

The United States Supreme Court established the ground rules for failure to train claims in City of Canton v. Harris, 489 U.S.378 (1989) (Special Training Beyond Basic First Aid for those Determining When Medical Care Should be Summoned for Detainees). The court held that the inadequacy of police training may serve as the basis for Section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come in contact. The court went on to explain that this will occur when the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. As an example, the court applied the training necessary after its ruling in Tennessee v. Garner, 471 U.S. 1 (1985), with regard to use of deadly force against fleeing felons. In essence, they applied a task analysis and determined that policymakers know to a moral certainty that their officers are required to arrest fleeing felons. The city also knows that officers are armed and that if officers were not trained in the new fleeing felon rule, that it is likely that a constitutional violation would occur.

The government entitys liability would turn on the adequacy of the training program in relation to the tasks that officers must perform. The court recognized that merely because there is an unsatisfactorily trained officer does not mean that the city would be held liable. For example, it might be that the program is sound but negligently administered or that the adequately trained officer simply made a mistake. Also, a plaintiff would not necessarily prevail merely by showing that better training could have avoided the injury. Simply put, the department must have adequate training, not the best training possible. Finally, the identified deficiency in the citys training program must be closely related to the ultimate injury.

This language left departments with a lot of wiggle room and avenues to escape liability for failure to train. All this may dramatically change based on the application of the Supreme Courts language in Board of the County Commissioners of Bryan County, Oklahoma v. Brown. In that case the Supreme Court overturned the finding of liability in an unconstitutional hiring claim because it is difficult to predict what might flow from a single hiring decision, however, the court noted that is far easier to predict what might flow from failure to train a single law enforcement officer as to a specific skill necessary to the discharge of his duties. The court also noted that it did not foreclose the possibility of municipal liability for failure to train a single officer.

Taking this language to heart, the plaintiffs brought the failure to train claim back to the trial level court. They were awarded $642,300.00 in damages, which was upheld on appeal in Brown v. Bryan County, Oklahoma 219 F3d 450 (5^th Cir. 2000). The case was again appealed to the United States Supreme Court essentially requesting a return to the Canton standard. On April 30, 2001, the U.S. Supreme Court denied cert., effectively refusing to reject their earlier dictum applied in the Fifth Circuit holding.

Simple Analysis

The Supreme Court standard lends itself to a simple analysis to assist training officers in prioritizing training. It simply requires training officers to identify tasks, the need to train in such tasks, and a determination as to whether failure to train is likely to lead to a constitutional harm. This analysis is described in Walker v. City of New York 974 F2d 293 (2^nd Cir. 1992). In Walker, the plaintiff, who was imprisoned for nineteen years, claimed that a police officer committed perjury and failed to disclose exculpatory evidence. The court applied a three-part test to determine whether the city was obliged to provide training specifically related to these claims:

1. Do you know to a moral certainty that officers will confront a particular situation?
2. Does the situation present a difficult choice or is there a history of mishandling by employees?
3. Will the wrong choice frequently result in a deprivation of constitutional rights?

Applying this three-part test to the claim of failure to train officers not to perjure themselves would not likely lead to a successful liability claim for failure to train. Although it is known to a moral certainty that officers, as part of their jobs, will testify under oath, the decision to lie under oath does not present a difficult choice. This is a matter of common sense, and departments would not be required to train officers not to lie unless there was a history of mishandling. On the other hand, a claim that officers were not trained on their responsibility to turn over exculpatory evidence would likely lead to liability. First of all, it is known that officers conducting investigations commonly discover evidence, which would tend to prove someones innocence. Second, the decision as to what evidence should be turned over to a prosecutor does present a difficult choice for officers who may feel that divulging such information might lead to a rejection of their warrant application. Thirdly, if exculpatory evidence were not turned over the result would likely be a constitutional violation if someone is arrested or searched without probable cause.

 

Determining What Training Is Needed

Evaluating training needs requires a careful analysis of all acts a police officer would be expected to undertake. It is not sufficient to simply categorize general topics like Search and Seizure or Motor Vehicle Pursuit. A training officer should delve into the particular acts officers perform within such topics. For example, in Search and Seizure a subtopic may be Forced Entry and within that subtopic is the act of Forcing Entry to Arrest for a Warrantless Misdemeanor. Now the training officer has arrived at the act, which must be trained on. If an officer forced entry to arrest for a warrantless misdemeanor offense and was not trained on this task, the municipality may be held liable.

In Motor Vehicle Pursuit training it is obviously a good idea to train officers on all decision-making issues, law and the actual practice of pursuit techniques. However, depending on state laws, liability for failure to train may be limited. For example, if a state law grants immunity for discretionary choices such as training decisions, it is more likely than not that the only constitutional failure to train claim that would succeed, would be for failure to train officers with regard to the forceful stopping of vehicles (Brower v. Inyo, 109 S. Ct. 1378 (1989))[1]. If you happen to be in a state, which by statute requires training in pursuits or does not grant immunity for discretionary training decisions, then liability might fall on a municipality for failure to train in all aspects of pursuit.

This certainly does not mean that training decisions should be based solely on whether or not a municipality may be held liable for failure to train. Obviously, the potential harm that may be caused to innocent persons because of unnecessary pursuits can lead to huge damage claims for which the municipality may have to indemnify the officer, therefore, clearly raising pursuit driving as a priority training topic.

Officers should also look beyond traditional training areas. For example, most departments do not train officers as to what action they are expected to take and how to take such action in off duty situations. In Brown v. Gray, 227 F.3d 1278 (l0th Cir. 2000) the municipality was held liable for failure to train after the excessive force claim was settled on behalf of the officer. Applying a test similar to Walker, the Appellate Court found that department executives know that officers may get involved in off duty situations in which they may act as police officers. Decisions on how to act in such circumstances present difficult choices for officers and an officer improperly exercising his authority may violate a citizens constitutional rights. The Court upheld an award of $400,000.00 on the failure to train claim.

Ramifications Beyond Mere Failure To Train

Being held liable for failing to train is just the tip of the iceberg related to inadequate training. Municipalities may be held liable for improper training, criminal prosecutions may be effected and general liability cases will be brought with the attendant increased amounts of public funds expended defending such claims.

It is not enough just to ensure that officers are trained. A department must ensure that the training is appropriate. Allen v. Muskogee 119 F.3d 837 (10^th Cir. 1997) is an example of an improper training case. Officers approached an armed suicidal man sitting in a car. When he motioned toward them with the gun they shot him. Plaintiffs expert claimed that no reasonable officer would have approached in that manner. The department and academy instructors claimed that the approach was consistent with training. The appellate court overturned the district courts summary judgment ruling finding, sufficient evidence to support the excessive use of force claim and the alleged causal link between the training and the constitutional violation.

Obviously there are hundreds of criminal cases thrown out each year because of actions officers take which would not be taken if they were properly and adequately trained. But failure to train may also lead to the loss of criminal cases even when civilians in the department are not properly trained. A very interesting example is the recent case of United States v. Colon, 250 F3d 130 (2d Cir. 5/14/2001) which held that the prosecution may not rely on the collective knowledge doctrine to justify an officers stop based on uncommunicated information relayed by an untrained 911 operator. The court explained that officers could rely on each other because they are all trained in making reasonable suspicion and probable cause determinations, but in this case there was no evidence that the 911 operator had received such training. Since the officer did not have personal knowledge of the facts justifying the stop and he could not rely on the operator, the detention was illegal.

Just as there are hundreds of criminal cases that are thrown out because of poorly trained officers, there are also hundreds of liability cases brought because of poor training. In the majority of these cases failure to train is not alleged. Even if these cases are won, they cost municipalities millions of dollars each year in defense costs. With the new liability training standard these expenses will increase dramatically. The Supreme Court ruling in Leatherman v. Tarrant County Narcotics and Intelligence and Coordination Unit, 113 S.Ct.1160 (1993) allows plaintiffs to make factually unsupported claims of failure to train and then do discovery. In the future departments should be prepared to disclose all of their training records and all training documentation of the involved officers related to the specific allegations in a complaint, even if such claims are frivolous. Also, those in charge of training should be prepared to testify about training and be ready to justify their decisions as to what training was provided and to whom.

It will be no defense that we didnt have enough money. That defense was raised in the Bryan County case and failed to carry the day, and now they have far less money.

 

Conclusion

This new standard for potential liability for failing to train even a single officer leaves training officers with the daunting task of prioritizing their training. Obviously a municipality does not have the resources to train officers in every act which may result in a constitutional tort. Although officers entering the profession from criminal justice college programs would have the opportunity for such complete training, recruit and in-service training programs simply cannot meet this demand.

If it is at all comforting, many municipalities may avoid such liability because their officers always act properly and never violate citizens civil rights due to some innate ability or just dumb luck. It is also possible that plaintiffs counsel may not be able to identify the particular training deficiency related to their clients injury. For example, in Gross v. City of Grand Prairie, Texas et al 209 F3d 431 (10^th Cir. 2000) an officer sexually assaulted two females stopped for motor vehicle violations and in Semple v. City of Moundsville, 195 F3d 708 (4^th Cir. 1999) three persons were shot in a domestic violence incident. In both cases plaintiffs counsel were unable to establish a direct causal connection between the specific deficiencies in training and the specific injuries.

Perhaps, given this new standard and the increased potential liability, departments may re-prioritize spending to take training off one of the lower rungs in the budget process. In Brown v. Bryan County the sheriff indicated that he didnt have sufficient funds to conduct training. The county ended up paying $642,300.00 for the failure to train claim. Likewise, in the Brown v. Gray case the failure to train officers in this unsuspecting topic of off-duty responsibilities resulted in a judgment of $400,000. This kind of money will go a long way to train officers to better perform their jobs.

Finally, the very best way to avoid liability is to ensure that all officers receive adequate training. Wouldnt it be great to hand plaintiffs counsel records showing that the defendant officer was, in fact, provided the very training he claimed to be deficient?

Equipment/Technologies

Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994)

Plaintiff was arrested for driving while intoxicated. While being transported, he fled to the home of his girlfriend's parents. In spite of the fact that he was handcuffed he struck an officer in the arm with a fireplace poker and fled into a wooded area. There he approached two officers with the fireplace poker and was shot and killed. Plaintiff argued that the officer had a duty to use alternative methods short of deadly force to resolve the situation before him. The court did not agree, finding that the officer's actions were reasonable. The Fourth Amendment does not require officers to use the least intrusive or even less intrusive alternatives in search and seizure cases. The only test is whether what the police officers actually did was reasonable.

Jensen v. City of Oxnard, 145 F.3d 1078 (9th Cir. 1998)

The SWAT team stormed a two-story townhouse to serve a search warrant, on what turned out to be an unoccupied residence. Officer Jensen threw a flash-bang grenade from a staircase onto the second floor landing. He and several other SWAT team members, including Sergeant Christian, went up to the second floor. During the turmoil, Christian mistook Officer Jensen for a gun wielding occupant and fired three rounds from his twelve gauge shotgun, killing Jensen.

The court found that Sergeant Christian was not entitled to qualified immunity since the allegations in the complaint, if proved, would amount to unreasonable use of force. The claim alleged that Christian shot Jensen three times in the back from a distance of three feet, in conditions in which he should have been able to recognize the figure he was shooting was a fellow officer.

The court also found that the City could be held liable if officials knew that Christian was likely to inflict a constitutional injury, or if their practice and policy showed a deliberate indifference to the danger that such an individual posed. The complaint specifically alleged that high-level supervisors assigned Christian to the SWAT team, knowing that he was using mind-altering drugs, including Phenobarbital and other substances. The complaint further alleged that the City failed to adequately train or equip members of the SWAT team; failed to control members of the SWAT team with a known propensity for violence and; failed to investigate SWAT team members for potential substance abuse and/or mental problems. Such allegations provided a sufficient link between the policy-makers decision and a particular injury alleged to support a Section 1983 claim. (Board of the County Commrs v. Brown, 520 U.S. 397 (1997)).

Spencer v. Knapheide, 183 F.3d 902 (8^th Cir. 1999)

Plaintiff, a pre-trial detainee suffered injuries rendering him a quadriplegic after he was placed with his hands cuffed behind his back in a police wagon and was thrown forward into the bulkhead of the passenger compartment. There were no seatbelts or other safety restraint devices installed in the compartment. The Boards decision to use patrol wagons without seatbelts was based on its concern that the individuals transported in the wagon, even those who were handcuffed, could use the seatbelt as a weapon to harm an officer, other passengers being transported in the wagon, or even themselves. Plaintiff claimed that the Board maintained an official policy of purchasing and using patrol wagons that were inherently unsafe. The Appellate Court affirmed the District Courts decision that the Board was not deliberately indifferent to plaintiffs constitutional rights.

Policy Case Examples

Brown v. Muhlenberg Township, 269 F.3d 205 (3^rd Cir. 2001)

Plaintiff and an objective witness allegedly observed the defendant officer shoot her pet Rotweiller in front of her home five times without any provocation and with knowledge that it belonged to the family who lived in the adjacent house and was available to take custody. A fourth amendment seizure of personal property occurs when there is some meaningful interference with an individuals possessory interest in that property. Destroying property meaningfully interferes with the individuals possessory interest, therefore, the killing of plaintiffs dog constituted a fourth amendment seizure. Although the state has a strong interest in restraining animals at large so they will pose no danger to persons or property, the destruction of a pet which poses no immediate danger when the owner is looking on and desires retaining custody, amounts to a fourth amendment violation.

Supervisory Liability: The department had a policy allowing officers to employ pepper spray against animals and it also set standards as to when deadly force can be used. Since the officers use of force in this case was contrary to the policy, the department could not be held liable. The court further ruled that the guidance of a policy manual was sufficient and that the failure to provide formal training on handling of dogs was insufficient to indicate deliberate indifference.

Finally, on the failure to supervise claim, the fact that the officer had killed four other dogs during his sixteen-year career was insufficient to prove supervisory liability since the last incident occurred some ten years before and the other cases involved situations in which officers were being attacked or the neighborhood was being terrorized by a stray dog.

Dubner v. City and County of San Francisco, 266 F.3d 959 (9^th Cir. 2001)

Plaintiff was among a group of demonstrators and observers arrested during a demonstration pursuant to citizen arrest forms. The court found that the citizens arrest was invalid because the citizen did not see the plaintiff, describe her or point her out to the police. Because none of the officers could recall seeing the plaintiff during the demonstration, much less see her break the law, they could not overcome the plaintiffs claim of unlawful arrest. Finally, the City could be held liable for an unconstitutional policy and the chief could be held liable for allowing the practice of the use of incomplete citizen arrest forms to effect unlawful arrests.

Huffman v. County of Los Angeles, 147 F.3d 1054 (9th Cir. 1998)

Kirsch, an off-duty deputy, was intoxicated in a bar. He began to engage in a conversation with plaintiff, which led to an offer by Kirsch to go outside and settle the matter. Outside, Kirsch was taken to the ground by plaintiff, who was a college wrestling coach. Kirsch fired a single shot with his gun pressed against plaintiffs chest. He did not identify himself as a police officer.

Department policy required their officers to carry their firearms off-duty and another policy prohibited them from acting in a drunk and disorderly manner.

The appellate court overturned the jury verdict of $750,000.00 finding that the officer was not acting under color of law, and the County could not be held liable under the danger-creation exception. DeShaney v. Winnebago County Department of Soc. Servs., 489 U.S. 189 (1989). Plaintiffs argued that this theory applied, because the departments requirement to carry guns at all times while off-duty, and its failure to warn deputies about the dangers of carrying firearms while intoxicated. An expert testified that there were eighty incidents from 1989 to 1994 in which off-duty deputies discharged or brandished firearms, of which fifteen involved alcohol. The court found that the county could not have reasonably foreseen Kirschs lethal private acts. They found that the danger-creation exception does not create a broad rule whenever officials increase the risk of some harm to some members of the public. Rather, plaintiff must show the State acted affirmatively, creating a foreseeable danger to the plaintiff, leading to a deprivation of the plaintiffs constitutional rights. Because Kirschs private acts were not foreseeable, and did not occur under color of law, the County could not be held liable.

Myers v. Oklahoma County Bd. of County Comrs., 151 F.3d 1313 (10th Cir. 1998)

The day after Suzanne and her son had been forced from their home by her husband, she called the police to seek assistance in entering the home. She knew her husband was drunk, armed with a .22 caliber rifle, and suicidal. Officers established contact, but during a conversation, Myers fired a shot from his rifle. Negotiations continued over the phone during the course of the afternoon and evening. In the meantime, an Order of Detention and Forcible Entry was obtained. At 8 p.m., the sheriff ordered entry to take Myers into protective custody. When two officers entered the home, they yelled, Freeze, Police and fired their weapons at Myers, who was pointing his .22 caliber rifle at them. The defendant officers prevailed at trial, and the plaintiffs appealed the earlier granting of summary judgment on the official capacity claims. Because it was not determined whether the jury found the defendant officers use of force to be reasonable or rendered their verdict based on qualified immunity, it was appropriate for the appellate court to consider whether a policy of the county may have been a moving force behind the alleged constitutional violations.

The countys policy allowed officers to use deadly force: to protect themselves or others when the deputies have probable cause to believe that they or others are in danger of death or serious bodily harm and that the use of deadly force is reasonably necessary to protect themselves or others. The evidence was undisputed that the officers did not resort to deadly force until Myers aimed his firearm in their direction. The county policy was well within the constitutional bounds in authorizing the use of force at that point.

The action of Sheriff Sharp as the final policymaker was also considered. The county could be held liable if the decision to enter the apartment resulted in a constitutional violation. The court found that the decision was reasonable as a matter of law. The officers spent hours attempting to resolve the situation through communication and then secured a court order authorizing them to enter the apartment.

In response to the failure to train claim the county produced voluminous training materials relating to mentally ill persons, portions of which dealt with suicide prevention and substance abuse. The involved officers received such training, therefore, plaintiffs failed to demonstrate a deliberate indifference on the part of the County.

Latuszkin v. City of Chicago, 250 F.3d 502 (7^th Cir. 2001)

Mrs. Latuszkin was killed by an intoxicated off-duty police officer following a party of officers. The officer was driving his private vehicle when he attempted to pass a vehicle on the right driving up on the sidewalk. Plaintiff alleged that the police department rules prohibited such conduct but that supervisory officers consciously chose to disregard this behavior. Plaintiffs claim was dismissed because he failed to allege a policy or custom of the city. The only claims that were made were made against the police department and its supervisory officials who were not policy makers. Plaintiffs claim that Wilson violated the deceaseds due process rights when he struck her with his car also failed because, generally, governmental bodies have no constitutional duty to protect individuals from actions of private citizens. There was no evidence that the officer was acting under color of law when he drove his own car while intoxicated, outside the City of Chicago and was not engaged in any police activity nor did he display any police power or possess any indicia of his office.

Hott v. Hennepin County, 260 F.3d 901 (8^th Cir. 2001)

Suicide cases are generally treated as allegations that officials failed to provide adequate medical treatment. The burden is on the plaintiff to show that he suffered from a serious medical need and that the jail officials actually knew of his need but deliberately failed to meet it. Plaintiff claimed that the officials should have known of Hotts suicide risk because hed been treated in a county hospital where he was diagnosed as being suicidal, made repeated gestures by holding his hands on his throat and squeezing, made a late night call to his girlfriend, and appeared visibly glum. The court found this evidence to be insufficient to support a claim that the employees had actual knowledge that Hott posed a serious risk of harm to himself and found no constitutional duty to obtain medical records from outside the facility.

The evidence was sufficient to show that the deputy failed to conduct cell checks in accordance with policy. Policies and training materials reflect a concern over the possibility of inmate suicide. Thirty minute checks are required in the special needs section where the plaintiff was housed. Against the backdrop of this serious risk of suicide was evidence that in the prior fifteen years there had only been one other suicide, there were two suicide attempts per year and in the year of plaintiffs suicide almost 45,000 had been booked in the facility. Therefore, even if the deputy failed to conduct checks according to the policy, his actions would not amount to deliberate indifference.

Berg v. County of Allegheny, 219 F.3d 261 (3^rd Cir. 2000)

A court clerks error in transposing two numbers into the computer system led to plaintiffs arrest. When the wrong numbers were entered, all of the identifying information of the plaintiff appeared on the arrest warrant. When the probation officer requesting the warrant checked the case file he noticed that no warrant for the proper person had been issued and thought for a moment that an erroneous warrant may have been issued, but that no practical way existed to determine if this had been done. The court found that both the clerk who entered the information and the adult probation officer were entitled to qualified immunity; however, the officer executing the warrant was not.

...an apparently valid warrant does not render an officer immune from suit if his reliance on it is unreasonable in light of the relevant circumstances. Such circumstances include, but are not limited to, other information that the officer possesses or to which he has reasonable access, and whether failing to make an immediate arrest creates a public threat or danger of flight.

The court also found that the county could be held liable. The record contained no evidence for procedures guarding against the clerks mistake, no double check to insure that warrants were issued in the correct name, nor was there any procedure by which an officer suspecting an erroneous warrant could ascertain whether one, in fact, was issued.

Having employed a design whose slip of a finger could result in wrongful arrest and imprisonment, there remains an issue of fact whether the County was deliberately indifferent to an obvious risk. The Countys failure to provide protective measures and fail-safes against the clerks mistake seems comparable to a failure to equip law enforcement officers with specific tools to handle recurring situations. when such a simple mistake can so obviously lead to a constitutional violation, we cannot hold that the municipality was not deliberately indifferent to the risk as a matter of law.

The court went on to quote Justice Ginsburg and Justice OConnor on law enforcements increasing reliance on computer technology.

Computerization greatly amplifies an errors effect, and correspondingly intensifies the need for prompt correction; for inaccurate data can infect not only one agency, but the many agencies that share access to the database. Arizona v. Evans, 514 U.S. at 26 the police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities.

Id, at 17-18.

Failure to Supervise

Randall v. Prince Georges County, Maryland, 302 F.3d 188, 2002 U.S. App. Lexis 16467 (4^th Cir. 2002)

Fifteen minutes after a police officer was murdered as he sat in his police cruiser, there were two plaintiffs stopped by county officers. Within the next thirty-six hours, another twelve plaintiffs were detained, brought to the police department for interviews that lasted up to nine hours, and in many cases, handcuffed to hooks on the wall. The jury found three supervisory officers liable for compensatory and punitive damages and awarded $195,000.00 for plaintiffs attorneys fees and costs. The verdict against the supervisors was based on concepts of bystander and supervisory liability.

Bystander Liability: Bystander liability is premised on a law officers duty to uphold the law and protect the public from illegal acts regardless of who commits them. An officer has an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers. When an officer has a reason to believe that a constitutional violation is being committed and possesses a realistic opportunity to intervene and chooses not to act he can be held liable.

The court explained that in order for the verdict to be sustained the evidence must show that the supervisors knew that a particular appellee was present at the station, that there was an absence of probable cause to detain the appellees and that such person was being held against his or her will. Because there were a number of other unrelated investigations being conducted in which people were being detained involuntarily at the station over this two day period, the court found that even though supervisors knew some of the appellees were present at the station there was insufficient evidence to prove that they knew any specific appellee was being held against his or her will without probable cause.

Supervisory Liability: Three elements of supervisory liability are: (1) that the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisors response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive or practice, and (3) that there was an affirmative causal link between the supervisors inaction and the particular constitutional injury suffered by the plaintiff.

Many of the plaintiffs claimed they were held well after their interviews on the basis that a supervisor or the lead investigator had to review their statements before they left. The court found that even if this was true, such a practice is not unconstitutional. Further, there was no evidence that it was customary for the police to detain witnesses against their will in the absence of probable cause.

Provost v. City of Newburgh, 262 F.3d 146 (2^nd Cir. 2001)

Provost, the owner and operator of a halfway house, went to the Newburgh police station to pick up one of his residents. After being told he would be attended to, he continued to go to the window every ten or fifteen minutes for an hour. At his final trip to the window officers claim he said something to the effect of What do you mean you dont know where he is? I dont have time for this bullshit and I cant sit around on my fat ass all day like you. Lt. Sorrentino told Officer Roper to go handle the problem. Roper arrested Provost, charging him with disorderly conduct. The jury awarded Provost $1.00 in nominal damages against each defendant and $10,000 in punitive damages against each of them for unlawful arrest.

The court held that Sorrentino was entitled to judgment as a matter of law because there was no evidence that he participated directly in plaintiffs arrest or that he was grossly negligent or deliberately indifferent to Provosts rights. To support a claim of personal involvement by a supervisory defendant the plaintiff must show that the supervisor 1) personally participated in the alleged constitutional violation; 2) was grossly negligent in supervising subordinates who committed the wrongful acts; or 3) exhibited deliberate indifference to the rights of the plaintiff by failing to act on information indicating that unconstitutional acts were occurring. The court felt that Sorrentino did not directly participate because he did not have knowledge of the facts that rendered the conduct illegal. His claim was distinguished from an officers duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence, which the court found Provost had not claimed against Sorrentino.

Because it was necessary for Provost to raise his voice to be heard through the bulletproof glass and other reasons, the court found the jury could reasonably find that when Provost raised his voice the noise was not unreasonable. The court further found that his speech was constitutionally protected only fighting words directed at police officers can be criminalized, and the fighting words doctrine is probably narrower in application in cases involving words addressed to a police officer, because the properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen.

Finally, the court denied the officers appeal based on qualified immunity because his attorney failed to claim qualified immunity in his motion for judgment as a matter of law. The dissenting opinion noted that this amounted to manifest injustice. The Lieutenant who ordered his subordinate to handle the problem and stood by while the arrest was being made was not required to pay $10,000 while his officer was being punished for his lawyers mistake

Yellow Horse v. Pennington County, 225 F.3d 923 (8^th Cir. 2000)

Neither the supervisor who took decedent off of suicide watch, nor the officer who allegedly failed to single out plaintiff for more than regular checks could be found to be deliberately indifferent, as they did not know of and disregard an excessive risk to the plaintiffs health or safety. Failure to train claim also failed since all officers are required to complete training courses on suicide prevention, and the jail was accredited by the American Correctional Association, a month before plaintiffs suicide. Suicide prevention training was held and the policy required suicide screenings and suicide watch procedures.

Holland Ex Rel. Overdorff v. Harrington, 268 F.3d 1179 (10^th Cir. 2001)

Two days after an altercation in which a number of patrons at a steak house were beaten, a misdemeanor warrant was obtained for one of the assailants as well as a warrant to search his residence for evidence of the assault. The SWAT team was deployed at 8:30 p.m., dressed in green camouflage clothing with hoods showing only their eyes. As the team approached, it encountered three young men (24, 18 and 8) playing basketball in the driveway. They were ordered at gunpoint to lie face down on the ground. A 14-year-old boy near the bunkhouse was also ordered to the ground at gunpoint where he was kept in a prone position for nearly 10 minutes. A 4-year-old girl seeing the armed deputies ran screaming into the house, pursued by an officer who aimed his laser lighted weapon on the childs back. The deputies found the suspect and the four women in the home, three of whom were ordered to lie face down on the living room floor.

Decision to Use the SWAT Team: The decision to deploy a SWAT team to execute a warrant necessarily involves the decision to make an overwhelming show of force - - a force far greater than that normally applied in police encounters with citizens the decision to use a SWAT team to make a dynamic entry into a residence constitutes conduct immediately connected with the seizure because it determines the degree of force initially to be applied in effecting the seizure itself.

The decision makers claimed that Franklin had a history of violence and there were others on the sixty-acre compound with histories of criminal violence. They also suspected that there were firearms in the residence and did not know how many adults they would encounter. The court found that the plaintiffs failed to show that the display of force inherent in the deployment of the SWAT team was excessive under the fourth amendment.

Specific Conduct of SWAT Deputies: The display of weapons, and the pointing of firearms directly at persons inescapably involves the immediate threat of deadly force. Such a show of force should be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at the time where a person has submitted to the officers show of force without resistance and where an officer had no reasonable cause to believe that the person poses a danger to the officers or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person in contrast to simply holding the weapon in a fashion ready for immediate use. The pointing of firearms at the child bystanders found at the residence violated their constitutional rights. The court also commented on the harsh language used by the SWAT team members. While recognizing the necessity of exercising unquestioned command, they suggested that simple instructions spoken in a firm and commanding tone communicating what the officers want to the subjects is far better than expletives which communicated little more than the officers own personal animosity, hostility or belligerence. While harsh language alone could not render a search or seizure unreasonable, it may be sufficient to tip the scales in a close case.

The court also commented on the attitude of the SWAT team members. Being on a SWAT team does not exempt officers from fourth amendment standards, and in fact, given the special training, requires greater discipline, control and restraint.

Finally, the court denied the supervisors qualified immunity. We can find no substantial grounds for a reasonable officer to conclude that there was legitimate justification by continuing to hold the young people outside the residence directly at gunpoint after they completely submitted to the SWAT deputies initial show of force or for training a firearm directly upon a four-year-old child at any time during the operation. Davis supervision of the SWAT deputies during the raid, furnishes the affirmative link between this violation and Davis conduct; it appears uncontroverted that the SWAT deputies continued to point their weapons at the persons found on the Heflin property until Davis directed them to stop doing so at the conclusion of the search.

Ealum v. Schirard, 2002 WL 1754323 (10^th Cir. 2002)

Utah law enforcement officials stopped Vasquez finding 52 pounds of marijuana. He told them he was delivering the marijuana to James in Colorado and agreed to do a controlled delivery. He dropped the marijuana at the home of Sharilee Ealum (where James sometimes stayed) who lived there with four young children, ages 12, 8, 6 and 3 and her mother. It was decided that SWAT should be deployed to secure the residence. Plaintiffs claim that after forcing entry the officers hurried the grandmother and three children into the living room, held guns on them and, at some point, pushed two of the boys to the floor. The court found that if this were true, it would be unreasonable under the fourth amendment. The court also found that it did not appear that there was probable cause to search the residence, let alone exigent circumstances to do so without a warrant.

The court found no liability as to the deputy who called for the SWAT team or the sheriff who ordered the team deployed. There was no evidence that either ordered the officers to use excessive force or exerted any supervisory control over the actual entry. With regard to liability for deploying the SWAT team, the court found that the decision was not, in and of itself, unreasonable since some years earlier there were firearms and body armor in the residence and it was not unreasonable for them to believe that resistance might be encountered.

Sherwood v. Oklahoma County, 42 Fed.Appx. 353 (10^th Cir. 2002)

The plaintiff, an employee of the Oklahoma County Sheriffs Office, was ordered to take some prisoners and paint some old vehicles in a makeshift paint shed that the Countys Health & Safety Office determined was unhealthful and in violation of OSHA. Plaintiff and the inmates contracted serious health problems including occupational asthma; difficulty with memory and concentration, painful uncontrollable twitching spasms and plaintiff was disabled from working. The United States Supreme Court in Collins v. City of Harker Heights, 503 U.S. 115 (1992) held that the due process clause is not a guarantee against incorrect or ill advised decisions, nor does it guarantee municipal employees a workplace that is free of unreasonable risks of harm.

The appellate court distinguished this case from Collins in that the defendants ordered the plaintiff to paint vehicles using hazardous paint and a makeshift paint booth with no ventilation or other safety equipment. The plaintiff was at risk of losing his job if he refused and the decision was made with knowledge that the painting operation was in violation of the law and in violation of state and federal safety regulations. The court held that a jury could find the defendants behavior was egregious, outrageous and recklessly indifferent to the serious consequences imposed on plaintiff. Further, the exercise of governmental power by the defendants was without any reasonable justification in the service of a legitimate governmental objective. The defendants placed their desire to paint old vehicles that were not even worth spending $300.00 apiece on, over the health, safety and welfare of the plaintiff. Such arbitrary action pursued without any reasonable justification makes the defendants deliberate indifference to the rights, health and welfare of the plaintiff actionable.

2002, by the Connecticut Criminal Law Foundation, Inc.

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