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Use-of-Force Training Liability

by Michael A. Brave, J.D., M.S., C.P.S., C.S.T.
and Jeffrey R. Edblad, J.D.
(© Copyright 1996 by LAAW International, Inc. All rights reserved.)

What is use-of-force training liability? In the narrowest view, use-of-force training liability may be defined as that liability that exists where an officer's use of force exceeds that degree of force which is legally justifiable, and this unjustifiable force was proximately caused by a level of training that was sufficiently inadequate to rise to a level of legally compensable injury. An example may better explain this concept.

Example - A law enforcement officer arrests a suspect. The officer restrains the arrestee with handcuffs and leg irons. The officer then uses an electronic restraint device to persuade the fully restrained arrestee to answer questions that the arrestee would normally not answer. While the officer has violated numerous rights of the arrestee, the underlying violated Constitutional right with regard to use of force was the arrestee's United States Constitution's 4th Amendment right to be free from unreasonable seizures. Because of the short duration of detention by the officer the arrestee has not yet reached the status of pre-trial detainee, which would then change the applicable Constitutional right from the 4th to the 5th/14th Amendment due process clause violation.

In our example, the officer's use of force upon the arrestee is a "seizure" (California v. Hodari D., 111 S.Ct. 1547, 111 L.Ed.2d 690 (1991)) implicating the "objective reasonableness" standard of the 4th Amendment to the United States Constitution. (Graham v. Conner, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Under the Graham standard, the officer's use of the electronic restraint is the seizure and under the totality of the circumstances, as known to the officer, at the moment the force is used was NOT "objectively reasonable." Therefore, the officer's use of force (seizure) of the arrestee was objectively unreasonable and the arrestee's 4th Amendment right to be free from "unreasonable seizures" was violated by the officer. Thus, the underlying Constitutional right violation has occurred.

[Note: The 4th Amendment, to the United States Constitution, directly applies only to federal government actions. However, the "objective reasonableness" standard of the 4th Amendment applies to village, town, city, county, state, etc. law enforcement officers via the incorporation doctrine of the 14th Amendment. Therefore, while a non-federal law enforcement officer can "directly" violate a person's 4th Amendment right to be free from unreasonable seizures, technically the non-federal officer is violating the 14th Amendment rather than the 4th Amendment where the standard of the 4th Amendment has been incorporated. Thus when dealing with a seizure of a free person the "objective reasonableness" standard is the same regardless of whether the applicable Constitutional Amendment is the 4th or the 14th.]

Now that there is an underlying Constitutional right deprivation, in our case the 4th Amendment's right to be free from "unreasonable seizures" (the use of force), the Constitutional "deliberate indifference" analysis regarding use-of-force training liability, is: (1) was the officer's employer, supervisor, and/or trainer "deliberately indifferent" (2) to the arrestee's violated Constitutional right (the 4th Amendment right to be free from "unreasonable seizures") (3) by failing to adequately train the officer (in the appropriate use of the electronic restraint device), and (4) was this lack of training "deliberately indifferent" to the person's Constitutional right the "moving force" behind the arrestee's Constitutional right's deprivation (City of Canton, Ohio v. Harris, et al, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989))?

In order to determine whether the training deficiency rises to the level of "deliberate indifference" the principle test is the "ignorance of obvious risks test," also known as the "obviousness test" or "constructive notice test." (Farmer v. Brennan, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994).)

The "ignorance of obvious risk test" could be implied where the failure to train officers in a certain area is so likely to result in the violation of Constitutional rights that the need for training is "patently obvious." As an example, the Canton Court observed that city policymakers "know to a moral certainty that their police officers will be required to arrest fleeing felons." Canton, 489 U.S. at 390, n.10. "Thus the need to train officers in the constitutional limitations on the use of deadly force can be said to be `so obvious' that the failure to do so could properly be characterized as `deliberate indifference' to constitutional rights." Canton 489 U.S. at 390 n.10.

The basic two prong Canton ("ignorance of the obvious risk") test is:
Prong One - Is a particular training program inadequate relative to the tasks that must be performed by the officers? Training must be adequate based on the usual and recurring situations with which law enforcement officers are faced.

Prong Two - Did the deficiency in the training program actually cause the constitutional injury? (Canton, 109 S.Ct. at 1205-6).

In the arrest of fleeing felon example, the questions would be: (1) Did the officer violate the person's 4th Amendment right to be free from "unreasonable seizures" by shooting a fleeing felon in the back in violation of the three prong fleeing felon test set out by the United States Supreme Court (Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985))? And, (2) if the officer did improperly seize (by shooting him in the back in violation of the United States Supreme Court's Farmer mandate) the fleeing felon, then did the officer's improper actions occur as a direct result of inadequate training of the officer?

Thus, in order for the lack of training to rise to the level of a federal constitutional rights violation: (1) there must be an underlying Constitutional rights deprivation (in this case a use of force that exceeds the force allowed by the Constitution), (2) the officer's employer must be shown to be "deliberately indifferent" to the person's Constitutional right that was violated, and (3) this deliberate indifference in training must be the "moving force" behind the Constitutional rights deprivation.

It is important to also note what are NOT "deliberate indifference" to training Canton claims. The unsatisfactory training of a particular officer will probably not give rise to a Canton level deliberate indifference to training claim, since the officer's shortcomings may be the result of factors other than an inadequate training program. However, if the officer has severe shortcomings, the law enforcement employer may face other liability exposures for negligent appointment, negligent entrustment, negligent retention, etc. Also, an otherwise sound training program that has been negligently administered will generally not give rise to a Canton training claim. Also the fact that an injury or accident could have been avoided if an officer had better or more training sufficient to equip him to avoid the particular injury causing conduct will usually not give rise to a Canton claim. And, a Canton claim will also not be found where an adequately trained officer makes an occasional mistake. (Canton, 109 S.Ct. at 1206, quoting City of Springfield v. Kibbe, 480 U.S. 257, 107 S.Ct. 1114 (1987), O'Connor J. dissenting, reh'g denied, 481 U.S. 1033 (1987); City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427 (1985), reh'g denied, 473 U.S. 925 (1985).)

In analyzing a Constitutional training liability claim there is another point that is very important. There are four (4) Constitutional Amendments that can give rise to a use-of-force liability claim: the 4th Amendment (seized free persons), the 5th/14th Amendment (for unseized free persons and pre-trial detainees), and the 8th Amendment (for those who are convicted and incarcerated). The 4th Amendment has an "objective" test, in that the officer's underlying motives are basically irrelevant so long as the use of force itself is legally permissible. The 5th, 8th, and 14th Amendment standards are different in that they have "subjective" standards in that the officer's motives are very important to the final liability determination.

In 1994, the United States Supreme Court acknowledged this "objective" - "subjective" difference as it pertains to deliberate indifference to training liability. (Farmer v. Brennan, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The principle difference is that the 5th, 8th, and 14th Amendments have a "subjective component." The subjective test does NOT permit liability to be premised on obviousness or constructive notice [the Canton test]. The Farmer case "requires us to define the term 'deliberate indifference,' as we do by requiring a showing that the official was subjectively aware of the risk." (Farmer, 114 S.Ct. at 1974). Thus, the 5th, 8th, and 14th Amendment test for deliberate indifference to a person's rights rising to the level of a compensable claim is the "actual knowledge of risks test." This test is far more stringent than the obvious or constructive test of the 4th Amendment.

The TRUE Use-of-Force Training Liability Question!!!

Many people look at the Constitutional deliberate indifference to training liability as the "ONLY" use-of-force training liability concern. This can not be farther from the truth. If we are genuinely concerned with "use-of-force training liability" then we have many other concerns other than third-party federal civil rights liability. We are also concerned about providing the optimum state-of-the-art use-of-force training to the officers to:

1. provide officers with the maximum level of self-protection.
2. minimize officer hesitation, injuries, and deaths.
3. minimize the degree of injury inflicted upon a use-of-force recipient while still allowing the officers to accomplish their lawful objectives.
4. minimize the negative impact of a use of force that is legally correct but that flunks the "appearance of impropriety" test (the "bad smell test").

By providing the highest level of state-of-the-art use-of-force training possible an agency can truly limit the costs of a use-of-force incident that may include: officer injury or death, unnecessary use-of-force recipient injury or death, department sanctions against an officer for a use-of-force incident, negative public impact, negative media coverage and outrage by some special interest groups.

In an ideal use-of-force training program (a state of the art program), there are four (4) basic areas of coverage: (1) use-of-force skills training, (2) use-of-force decision training, (3) use-of-force communication training, and (4) use-of-force compassion training.

Obviously officers must be trained in the "skills" of use of force. In use-of-force skills training an agency should strive to provide the highest level of use-of-force equipment and skills training. Many use-of-force incidents could be de-escalated or even avoided altogether with the appropriate equipment and/or skills. As an example: A suicidal juvenile with a knife is threatening police. The police have to deal with the problem, but they really don't want to use deadly force on the juvenile. Do the officers have other non-deadly force alternatives (medium range OC aerosol, rubber firearms rounds, distance electronic restraint devices, etc.) available to them? If the alternative equipment or training in the use of that equipment is not available then the officers may be forced to resort to conventional firearms.

Some law enforcement agencies that have issued OC aerosols immediately forbid the carrying of batons. By doing this the agency has removed a valuable tool from the officer's use-of-force tools alternatives. Many times the agencies do this in a shallow misguided attempt to minimize liability believing that OC carries less liability generating potential than a baton. However, often the agency has failed to consider what the officer is going to be forced to resort to if the OC doesn't work, or if the environment in which the officer finds himself that OC is not a viable option.

Likewise, if officers are adequately trained in weapon retention and disarming then it is foreseeable that a trained officer could possibly avoid an incident deteriorating into a shooting incident. (Parker v. District of Columbia, 850 F.2d 708 (D.C. Cir. 1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1339, 103 L.Ed.2d 809 (1989)).

Unfortunately, many law enforcement agencies do not provide their officers with competent use-of-force decision training. Consider the following: if there were 100 shootings across the United States today and all of these shooting had negative accountability problems such as officers injured, legitimate lawsuits, negative public outcry. How many of these shootings would have the negative accountability problem because of (1) the officer's shooting skill - the skill (ability) to put the bullet through the correct hole, or (2) the officer's ability to decide whether to launch the bullet in the first place coupled with a clear ability to clearly articulate the full and complete justification for the discharge of the firearm? The vast majority of accountability problems would stem from number two (2) the "decisional" aspects of the use of the deadly force, and not the skills. However, how many agencies COMPETENTLY train their officers in the decision making skills? Very few.

More and more agencies are training their officers in the communications skills of the job. Communication training programs are becoming wide spread in many agencies and are serving a very valuable purpose. Many officers who have been trained in verbal/behavioral force de-escalation techniques have found that they did not have to resort to higher levels of force to accomplish their lawful objectives. Thus, through training there is success in significantly reducing use-of-force liability.

The fourth area of training could be called use-of-force compassion training. This training has numerous names and concepts, but the underlying aspect to the training is to train officers to control their emotions while simultaneously have as much compassion and respect for the use-of-force recipient as possible under the given circumstances. Problems that can be curtailed by this area of training include "high- speed pursuit syndrome," post OC exposure lack of immediate decontamination problems, or use of force escalation caused by insufficient available wait-time.

Avoid the Knee-Jerk Reaction

A law enforcement agency must be very careful to avoid a knee jerk reaction after a use-of-force incident. Consider the Malice Green case from Detroit. Malice Green died after officers struck him in the head multiple time with flashlights. As a direct result of the incident some law enforcement agencies forbid officers to strike people with flashlights, or some agencies issued small flashlights or plastic flashlights that could not be used as striking implements. This is over-reaction to an incident. A more reasoned solution would be to train the officers on when a metal flashlight could be used as a legitimate use-of-force tool.

This same knee-jerk overreaction was recently scene in the South Carolina Trooper incident where a South Carolina state trooper driving an unmarked squad stopped a car for speeding and allegedly used excessive force on the female driver. Since the incident was captured on video the national media had a field day. While the trooper's action appeared to be excessive force, in reality the officer's force was likely to be appropriate but the officer's use of his voice in seeming to be out of control created the national uproar by certain special interest groups. As a direct result of this incident some agencies forbid the use of unmarked squad cars to make traffic stops. This overreaction will most likely significantly hamper law enforcement efforts.

The ultimate goal in minimizing use-of-force training liability should be to provide use-of-force training that results in officers attaining the highest level of professionalism achievable. If the focus is to strive to be as professional as possible, then the use-of-force training liability founded upon the Constitutional deliberate indifference cause of action will be totally irrelevant. A truly professional officer will be far above the deliberate indifference standard.