Legal Corner: Departmental Liability for Failure-to-Train
By Matthew W. McNamara
Nothing is as important as making sure law enforcement officers receive proper training. Not only does it increase their chances for winning confrontations, the lack of such puts the department at risk of being held liable, according to guidelines set in the 1989 US Supreme Court ruling, City of Canton, Ohio v. Geraldine Harris. Since Canton, one legal scholar has estimated that in the 1990’s, law enforcement agencies faced approximately 30,000 lawsuits per year.1 The court made it clear in Canton that training police personnel is a critical managerial responsibility and is not viewed as a luxury. Administrators may be held liable if inadequate or improper training causes injury or violates a citizen’s constitutional rights.1 The Court also made it clear that the basic police academy emphasizes law and discipline, but that such training alone is not enough.
While most officers spend only a small portion of their time engaging in “criminal catching” activities, this is the focus of a majority of entry-level training. Little time is spent teaching officers the humanistic or interpersonal aspects of non-crime policing – an activity they will use much more often. Even the best entry-level academy training is insufficient to assure an officer has been adequately trained. Training performance alone, is not a valid indicator of future job performance. In addition to receiving academic training, an officer must have the ability to correctly apply that knowledge to a real situation and the willingness to do so.2 Training, in all aspects of an officer’s duties, must be completed before that officer engages in such activity. Failure to do so may lead to civil liability, potentially crippling a municipality.
In City of Canton, Ohio v Harris (1989:1200-1201):
“Geraldine Harris was arrested by officers of the Canton Police Department. Harris was brought to the police station in a patrol wagon. When she arrived at the station, Harris was found sitting on the floor of the wagon. She was asked if she needed medical attention and responded with an incoherent remark. After she was brought inside the station for processing, Mrs. Harris slumped to the floor on two occasions. Eventually, the officers left Mrs. Harris lying on the floor to prevent her from falling again. No medical attention was ever summoned. After about an hour, Mrs. Harris was released from custody and taken by an ambulance (provided by her family) to a nearby hospital. There, Mrs. Harris was diagnosed with several emotional ailments: She was hospitalized for one week and received outpatient treatment for an additional year.”2
Further background of the case revealed that the watch commander in charge of the department on the day of Harris’ arrest had sole authority in determining if medical attention was needed for any arrestee being housed at the police station. The watch commander was given this authority through departmental policy, even though it was later proven that he had no training in noticing the effects of the illnesses that Harris was displaying or any other type of medical emergency.
What stemmed from this case, as decided by the Justices of the US Supreme Court, was that departmental liability in cases such as these would be judged on “deliberate indifference.” “We hold that the inadequacy of police training may serve as the basis for 1983 liability only where the failure-to-train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”3 By adopting the higher deliberate indifference standard, the Court rejected the gross negligence standard that had been adopted by many lower Federal courts.4
Deliberate Indifference Defined
The Justices articulated the fact that deliberate indifference would be used when judging department liability in regard to the failure-to-train officers. Three areas of deliberate indifference have since been defined:5
1. Moral Certainty Standard Violation
If the subject area was one of the clearly established laws, of which a reasonable policy-maker knew or should have known that constitutional violations would occur if employees were not trained, liability could arise.
2. Custom, pattern or practice.
If a custom, pattern or practice demonstrates such an obvious need for more or different training that policy makers could reasonably be said to have been deliberately indifferent to the need (under the concept of knew or should have known), liability could arise. For example, a series of suicides within a jail.
3. An official policy.
If policy-makers adopt an official policy which violates clearly established law of which a reasonable person knew or should have known, liability could arise. For example, a jail policy allowing cross-gender strip searches.
This deliberate choice can be shown where the need for more or different training is so obvious and is so likely to result in the violation of constitutional rights that policy-makers were deliberately indifferent to the need.6 The Supreme Court explained that inadequate training meets the deliberate indifference standard only when the need for more or different training is obvious and the failure to implement such training is likely to result in constitutional violations.4
The Court also offered two examples of what would constitute deliberate indifference when judging a department’s liability in the scope of failure-to-train: First, when city policy-makers know that officers are required to arrest fleeing felons and are armed to accomplish that goal, the need to train officers in the constitutional limitations regarding the use of deadly force to apprehend fleeing felons is obvious; failure to do so amounts to deliberate indifference. Second, deliberate indifference could be based on a pattern of officer misconduct, which should have been obvious to police officials who fail to provide the necessary remedial training.4 In general, it has to be demonstrated that training does not currently meet acceptable standards within the law enforcement training community—it omits important aspects, is not satisfactorily documented, is not properly taught or contains inadequate standards.7 In an effort to avert second-guessing of municipal training programs, the Court took a position that training be afforded to officers in order to “respond to usual and recurring situations with which they must deal.”1
The Court wisely addressed the fact that officers and the people who manage them are only human, and they took this into consideration when deciding Canton:
“Adequately trained officers can make mistakes.” Liability can only attach where the city’s failure-to-train reflects deliberate indifference to the constitutional rights of citizens and deficiency must be closely related to the ultimate injury. Training then should be designed to directly correspond with recurring tasks of police work.1
Since the Canton decision, the US Supreme Court has made other rulings that have continued to define the Canton decision. In the case of county commissioners of Bryan County v. Brown, the Court found it possible to hold a municipality liable for failing to train even a single officer in a recurring act. This opens the door for the possibility of a municipality being held liable for failing to train all of its officers in acts they know officers will perform and, if not trained properly, the result will likely be a constitutional violation.8
Training Liability Sources
In the year 2000, Darrell L. Ross of the East Carolina University at Greenville, North Carolina conducted a study of failure-to-train Section 1983 cases. Ross did a content analysis of 1,525 cases (from 1989 - 1999) to determine the 10 most frequent areas where failure-to-train allegations were brought against departments.
Ross investigated the following six questions when conducting this study:
- What are the most common topics of civil litigation filed against police agencies that allege failure-to-train?
- How frequently does a municipality prevail in these claims?
- How frequently does the plaintiff prevail?
- What is the average award granted to the plaintiff?
- What are the average attorney fees awarded?
- What are the overall longitudinal trends of these cases for the past 10 years?
Police administration prevailed in slightly less than 2/3 of the litigation, or a 2-1 ratio. Less lethal force and lethal force (for example, excessive force claims) combine to be the most litigated areas asserting a failure-to-train officers (25%). This point on force issues (constituting almost 1/4 of all claims) is interesting because departments generally spend the majority of their time training on some of these issues, while ignoring other force training.
Departments always train officers in weapons disciplines, expandable baton training and pepper spray issues. However, after studying the table, it is obvious that 55% of the non-lethal claims arise from physical or hands-on actions, something which departments spend very little training time on. It is the exception and not the rule for officers to receive any defensive tactics or physical skills training after graduating from the academy. Ross’s study indicates this kind of training may be an area that needs more attention. The data also reveals that it may be difficult for plaintiffs to demonstrate a standard of deliberate indifference when they claim a department has a training deficiency. However, plaintiffs prevailed in approximately 1/3 of the overall cases, and the average award is significant, amounting to over $450,000.1 It should be noted that costs indicated in the table do not reflect the time the department and its administrators spent in preparation of the lawsuits and claims.
Avoiding this Liability
Law enforcement agencies should make it a high priority to take steps to avoid civil liability issues because of failure-to-train. No other issue will so drastically ensure your department’s resiliency as proper training. Administrators must pay attention to issues raised and standards set in Canton. As Ross’s study clearly indicates, departments should carefully review training practices related to high-risk activities, such as the use of deadly and non-lethal force, warrantless arrest and searches, vehicle pursuit and prisoner safety in detention facilities. Departmental training policies should be reviewed to ensure conformance with current constitutional standards, and training practices should not be allowed to fall below minimum standards. If a pattern of abuse begins to develop, officers should immediately receive remedial training in that area. Regular in-service training should be the norm for all high-risk areas.
Supervisor policies relating to citizen complaints and departmental disciplinary actions should be periodically reviewed. Specific procedures for investigating citizen complaints should be established and carefully followed.4 Complaints should be investigated as soon as possible, and the results of the investigation should be documented and maintained for a number of years. The same rules apply for any discipline assigned to any and all officers. The failure to discipline or dismiss officers who develop a track record of unconstitutional conduct may result in supervisory and municipal liability.4 While it is impossible to be free from liability, these proactive management initiatives will help reduce the risk significantly.
Good, clear documentation of training is a must. All officers should have copies of all their training certificates and description of the training received placed in their personnel files and in the department’s training files. This training information should be kept as up-to-date as is reasonably possible.7 It is also the responsibility of the agency to maintain records of all in-service training, including when training was held, which officers attended, which topics were covered and who provided the training. Certain skills, such as firearms training, should be required of all officers, regardless of rank, assignment or experience.7 Taking this proactive step will help reduce department liability by showing an ongoing commitment to proper training.
Other important areas departments should cover in their training curriculum include:
- Legal training – this should include legal updates, new law information and search and seizure information.
- Use-of-force training – reviewing the decision matrix and documentation required by officers when force is utilized.7
For his part, Ross made four recommendations after analyzing his research:
- Each administrator should conduct an internal assessment of tasks officers and supervisors perform on a routine basis.
- Once a training assessment has been finalized, administrators are encouraged to revise those policies and procedures that parallel training topics. An example would be the police department’s use-of-force policy that should be reviewed on an annual basis and revised to reflect new and current case laws.
- In order to avert future failure-to-train liability and to maintain occupational professionalism, supervisory training should be instituted. This should include pre- and post-promotion training, conducted at least biannually, concentrating on supervisory duties, including policy interpretation, implementation and enforcement, as well as performance evaluation of subordinates.
- It is critical that all training be documented and accurate training records be maintained. Training records for each officer and administrator should be maintained and inspected at least twice a year to ensure their integrity. Administrators should monitor and evaluate current and future training needs annually. It is also recommended that police administrators review their field training officer program.
Ignoring issues raised in the Canton decision can be devastating to an agency, its administrators and municipality. This Supreme Court decision clearly indicates that departments can and will be held liable for a deliberate indifference to train their officers, and to make sure their decision-making ability is based on that training. Although it is difficult to prove the burden of deliberate indifference, the average cost awarded to plaintiffs in winning cases was nearly one-half of a million dollars. Considering the fact that the average police department in the United States is approximately 10 officers, this amount of money could represent a large percentage of the budget. Attorney’s fees and number of man-hours that would go into the preparation of such a defense could easily double that amount.
Thankfully, there are things departments can do to insulate themselves against failure-to-train lawsuits. Administrators must make sure their training programs are current and effective, demand that training be a normal part of the department’s yearly calendar and thoroughly document all training. An effective training program can be the difference between dismissal of a suit and a serious judgment against an agency.
1 – Ross, Darrell L., “Emerging Trends in Police Failure-to-Train Liability.” Policing: An International Journal of Police Strategies & Management 2000 v. 23, no. 2, pp. 169-193.
2 – Aaron, Titus, “The Failure-to-Train: or, An Excuse Not to Work.” Law and Order, March 1991 v. 39, no. 3, pp. 46-49.
3 – Bosarage, Betty B. & White, Supreme Court Justice, “Training Liability: What the Supreme Court said in the Canton Case.” Training Aids Digest, April 1989 v. 14, no. 4, pp. 1, 5-8.
4 – Callahan, Michael, “Deliberate Indifference: The Standard for Municipal and Supervisory Liability.” FBI Law Enforcement Bulletin, October 1990 v. 59, no. 10, pp. 27-32.
5 – Lund, Lynn J., “Avoiding Civil Liability, The Training Perspective.” Sheriff, May/June 1994 v. 46, no. 3, pp. 19-21.
6 – Thurm, Milton, “The Need to Train – Constitutional Issues.” The Police Chief, April 1993 v. 60, no. 4, pp. 16.
7 – Dahlinger, Charles, “The Consequences of Not Adequately Training or Reviewing Department Policy.” Law and Order, December 2001 v. 49, no. 12, pp. 53-54.
8 – Sack, Spector & Karsten, “Failure-to-Train.” Law and Order, June 2002 v. 50, no. 6, pp. 136-138.
Editor’s Note: This article was adapted from a research paper written by Matt McNamara. Contact Matt at email@example.com for a copy of the complete paper.
About the Author
Matthew W. McNamara was an officer for 12 years, most recently Deputy Chief at the Cook County Sheriff’s Dept. (Chicago, Illinois). Matthew is a former Team Leader of his department’s Tactical Response Team and he is also a former Director for the Illinois Tactical Officer’s Association and former Chairman of the physical skills committee. Matthew is certified by the State of Illinois Training and Standards Board to instruct a wide variety of tactical, firearm and combatives related disciplines. He is currently the Senior Manager of the Tactical Training Group for Triple Canopy and may be reached at firstname.lastname@example.org