Book excerpt: Supervisory and Municipal Liability in Law Enforcement
Real-world lessons provide critical information on how to avoid potentially devastating leadership liability issues
In his latest book, "Supervisory and Municipal Liability in Law Enforcement - Case Studies and Court Rulings," PoliceOne columnist Mike Callahan explores critical leadership liability issues facing law enforcement agencies. The book is available for purchase from Looseleaf Law Publications, Inc., and Amazon.
Case Study Three: Zuchel v. City of Denver – Defective Firearms Training
On the evening of August 6, 1985, Zuchel  created a disturbance at a restaurant in Denver, Colorado. Police were called but Zuchel left the restaurant before they arrived. Denver officers tried to locate him in the vicinity of the restaurant. Meanwhile, Zuchel became involved in a heated argument with four teenagers on bicycles nearby.
As Officers’ Spinharney and Hays approached Zuchel from behind, one of the teenagers shouted that Zuchel had a knife. Zuchel turned and faced the two officers. Officer Spinharney told Zuchel that he needed to shut up. Officer Hays testified that they were about 15 feet away from Zuchel and that Officer Spinharney drew his gun when Zuchel turned to face them. She heard Spinharney say “Drop it, Drop it.”
She said that she saw nothing in Zuchel’s right hand but did not get a clear view of his left hand. She stated that Zuchel kept moving forward at a slow pace and that she was standing right next to Zuchel when Officer Spinharney shot him. At that point, Zuchel was about four to five feet away from Spinharney’s extended firearm. She testified that she was surprised when she heard the first of four shots and had not expected Spinharney to shoot Zuchel. Zuchel died and a pair of fingernail clippers was found near his body. 
Prior to the Zuchel shooting, in February 1983, the local District Attorney sent a letter to the Denver Police Chief concerning six police shootings that occurred in a six-week period from the beginning of January 1983. In the letter, the District Attorney recommended that the Denver Police Department (DPD) institute or expand firearms training to include strategic skills development involving situational analysis, and options development that would lead to minimizing violent citizen-police encounters. He also recommended that the Department establish, "[p]eriodic target course ‘shoot-don’t shoot’ live training under street conditions, particularly for officers on the front line.” 
The Denver Police Department did not institute periodic live range training as recommended by the District Attorney. Officer Hays testified that her police academy training included a lecture series on decisional shooting, but she never received live training on a “shoot-don’t shoot” range at the Academy or anywhere else before the Zuchel shooting.
Matters for Consideration
You are new chief of the Denver Police Department. Your chief counsel has just given you a briefing on what happened in the Zuchel case. Do you need to take any steps to enhance your department’s academy and in-service deadly force and firearms training to prevent future individual and municipal liability?
Result of Litigation
Zuchel’s family sued Officer Spinharney and the City of Denver in federal court. They alleged that Zuchel’s shooting was unconstitutional and the City of Denver, through its police department, failed to adequately train its police officers regarding the use of deadly force. The family subsequently settled its claim against the defendant officer and the case proceeded to trial against the City. At the conclusion of the trial, the jury returned a verdict against the City for $330,000. The City filed an appeal with the Tenth Circuit Court of Appeals.
The Tenth Circuit affirmed the jury verdict against the City. The court first ruled that the jury’s decision that the shooting of Zuchel was unconstitutional was correct. The court moved on to examine the verdict against the City for failure to train. The court determined that the jury’s verdict against the City for failure to provide sufficient deadly force training to its officers was proper.
The court reviewed the content of the letter sent by the District Attorney to the Denver Police Chief concerning six police shootings that occurred in a six-week period from the beginning of January 1983. The court also examined testimony from Zuchel’s expert witness (a former police officer and a then current criminal justice professor). The court concluded that the jury correctly found that the Zuchel shooting was the product of a usual and recurring circumstance [a pattern] that confronted Denver police officers, i.e. the use deadly force against citizens.
As previously mentioned, the District Attorney’s letter recommended that the Denver Police Department institute or expand firearms training to include strategic skills development involving situational analysis, and options development that would lead to minimizing violent citizen-police encounters. He also recommended that the Department establish, "[p]eriodic target course ‘shoot-don’t shoot’ live training under street conditions, particularly for officers on the front line.” 
Failure to Train - Shoot/Don’t Shoot Situations
The court observed that the Denver Police Department failed to incorporate periodic live shoot/don’t shoot training into its officer deadly force/firearms training curriculum as recommended by the District Attorney. The court opined that this alone was sufficient to support the jury verdict against the City. The court ruled that the Denver Police deadly force training program that was in place prior to the Zuchel shooting was inadequate, and that a direct connection existed between the inadequate training program and the Zuchel shooting.
Expert Witness Testimony Essential
Reinforcing the absolute necessity for expert testimony in cases of this nature, the Tenth Circuit credited the testimony of Zuchel’s expert in reaching its decision. The court stated, “we note that Mr. Fyfe (plaintiff’s expert) … stated his belief that failure to institute periodic live range training left Denver far below generally accepted police custom and practice and constituted deliberate indifference to the rights of Denver citizens.” 
Numerous Shootings Require Thorough Review
The court also took judicial notice of the fact that the Denver Police Department had six officer-involved shootings in a six-week period in January/February 1983. It was this series of officer-involved shootings that prompted the District Attorney to write the letter recommending live shoot/don’t shoot training. The court observed that this number of shootings together with the District Attorney’s letter support a reasonable inference that such encounters were a usual and recurring problem that should have placed the police department on notice that more or better training on use of lethal force was needed. 
- To be effective and constitutionally sound, police recruit academy training and in-service training on use of deadly force must involve a combination of training regimens. The training curriculum must include lecture-style training on the constitutional standards and departmental policy parameters regarding the use of deadly force. Departmental policy standards must be equal to or stricter than constitutional requirements. This lecture-style training is necessary but not sufficient.
- As the Zuchel decision points out, for officers to fully comprehend what they have been taught in the classroom, they must be confronted with realistic “shoot/don’t shoot” scenarios on the firearms range. These scenarios must test their knowledge, judgement, comprehension, and firearms skills under stress and pressure. The court reflected that only then can we feel confident that our police officers will respond correctly when confronted with life threatening situations.
- It is no longer adequate to have officers shoot 50 or 100 rounds at a static paper target once or twice a year and certify that they are qualified to patrol our streets and protect the public from dangerous circumstances. Officers must be periodically reminded of the constitutional and department rules and parameters regarding use of deadly force and tested in live realistic “shoot/don’t shoot” situations to ensure that they understand when use of lethal force is appropriate.
- Live training of this nature should include shooting live ammunition at paper targets that have pictures of dangerous suspects on them that are strategically placed for maximum effect. Interspersed among the “bad guy” targets can be targets bearing images of civilians and law enforcement officers. Officers will be forced to make split-second judgements on whether the target facing them presents a significant threat of death or serious bodily harm to the officer or other innocent persons. 
- Video simulators connected to realistic looking firearms with laser technology are also valuable training aids. Video simulators can be used year-round indoors to test officers’ judgement regarding when it is appropriate to use deadly force. The video simulators will show multiple videos placing the trainee in the middle of real-life situations requiring quick thinking and application of all the officer has learned about whether deadly force is appropriate.
- Perhaps most valuable and effective of all “shoot/don’t shoot” training is so-called “force on force” training involving air-soft munitions or paint bullets. Officers participating in “force on force” training can be confronted with a variety of carefully constructed scenarios that are highly realistic and “street like” in all respects except for live ammunition.
In all of these different kinds of training, officers will periodically participate in live “shoot/don’t shoot” situations where they will be able to demonstrate firearms proficiency and their knowledge of deadly force constitutional and departmental policy provisions. Not only will the chance of liability for officers, supervisors and municipal corporations be significantly reduced but officers will be much better prepared to survive and win a deadly force encounter.
Realistic “street-like” training scenarios that are created for “force on force” confrontations are the ideal way to sensitize officers to what it is like to be involved in a real-life deadly force incident. Officers will quickly learn how fast these situations will develop and how vulnerable they are to being shot once they are hit with a paint bullet. They will also learn that once they fire a paint bullet that strikes an innocent bystander, it is too late, and they cannot take it back. Repetitive training of this nature is essential to prepare officers to engage in deadly force confrontations and to discipline themselves to recognize when use of lethal force is not appropriate as well.
Some law enforcement managers have been known to reject this kind of special training because they claim that it is time-consuming and costly. Spending cuts by federal, state, and local governments and law enforcement agencies on critical firearms and deadly force training programs are penny wise and pound foolish.
The relatively small amount of money saved will be swallowed up in the failure to train lawsuits that follow. More important, our front-line officers who risk their lives daily to protect and serve will be placed at a distinct personal safety disadvantage by these short-sighted money saving measures. These officers deserve the best available deadly force training to save their own lives and the lives of innocent civilians they represent.
1. 997 F.2d 730 (10th Cir. 1993).
2. Some, including myself, may disagree with the Tenth Circuit’s characterization of the shooting in this case as unconstitutional. However, it was the jury that determined that the shooting was unconstitutional based upon hearing and evaluating all of the evidence. The Court of Appeals affirmed.
3. Id. at p.738.
4. Id. at p.738. (emphasis added).
5. Id. at 740.
6. The Tenth Circuit cited the Supreme Court’s decision in Canton v. Harris, 489 U.S. 378 (1989) to support its conclusion that officer training was inadequate and caused the unconstitutional shooting of Zuchel. In Canton the Supreme Court ruled that when situations confronting police officers are likely to recur over and over again, it becomes foreseeable that constitutional problems are likely to occur. In those instances, the need for more and better training becomes obvious and the failure to implement such training amounts to deliberate indifference on the part of law enforcement policymakers. This of course leads to judicial municipal liability determinations.
7. See Tennessee v. Garner, 471 U.S. 1 (1985).