Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
Title: Training Gone Wrong: Analysis of Negligent Training Cases and Application to
Firearms Training
Lesson Purpose:
To analyze case law on agency and/or municipal liability
related to negligent training, in order to assist firearms
instructors to design objectively reasonable training and
persuade their agencies to implement the training.
Training Objectives:
At the end of this block of instruction the student will be
able to achieve the following objectives in accordance with
information received during the instructional period:
1.
Identify the key historical cases regarding negligent
training and discuss the general principles derived
from those cases.
2.
Discuss cases where the allegations of negligent
training include insufficient or inadequate training.
3.
Discuss cases where the allegations of negligent
training include either training unconstitutional
methods or failure to train the constitutional
limitations on the use of force.
4.
Discuss cases where the allegations of negligent
training include liability for injuries during training.
5.
Given the case law discussed, list factors that a
court would likely find reasonably refute an
allegation of negligent training.
Hours:
Four (4)
Instructional Method:
Lecture/Discussion
Materials Required:
Lesson Plan
Pen/Pencil
Training Aids:
PowerPoint slides
LCD/Computer
References:
Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997).
Atchinson v. D.C., 73 F.3d 418 (DC Cir. 1996).
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Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
Board of County Comm. Of Bryan Co. v. Brown, 520 U.S.
397 (1997).
Brown v. Bryan Co, OK, 219 F.3d 450 (5th Cir. 2000).
Brown v. Gray, 227 F.3d 1278 (10th Cir. 2000).
City of Canton v. Harris, 489 U.S. 378 (1989).
Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991).
Duncan v. Arizona, 157 Ariz. 56 (1988).
Monell et al. v. Dep’t. of Soc. Serv., 436 U.S. 658 (1978).
Oklahoma v. Tuttle, 471 U.S. 808 (1985).
Parker v. D.C., 850 F.2d 708 (DC Cir. 1988).
Popow v. Margate, 476 F.Supp. 1237 (D.NJ 1979).
Sager v. Woodland Park, 543 F.Supp. 282 (D.Colo. 1982).
Spector, Elliot B., “Police Civil Liability & The Defense of
Citizen Misconduct Complaints.” Presented at AELE
Conference, Las Vegas, NV October 2004.
Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987).
Young v. City of Providence, 404 F.3d 4 (1st Cir. 2005).
Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993).
Prepared by:
Tara G. Harper
Attorney
t_gharper@yahoo.com
Date Prepared:
December 2007
Date Revised:
April 2008
Date Revised:
November 2012
2
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
TITLE: Training Gone Wrong: Analysis of Negligent Training Cases and Application to
Firearms Training
I.
Introduction
A.
Opening Statement
Most law enforcement officers understand that an officer’s use of a
firearm is likely to lead to some type of lawsuit. Most law enforcement
firearms instructors understand that the training the officer receives may
also lead to a lawsuit. Experience, specialized training, and common sense
often dictate to firearms instructors the best type of instruction to use on
the agency’s weapon of choice. However, what happens when the firearms
instructor tells his or her agency the best type of training to implement and
the answer received is “no” or “do it like we’ve always done it”?
The presentation today will lay out some important case law examples
which explain an agency’s, city’s or county’s liability when it comes to
training issues in use of force. With these cases in hand, an effective
argument for new, improved and legally sound training may be able to be
made.
B.
Training Objectives
C.
Reasons
“We don’t have the money.”
“Our past training works.”
“If we haven’t been sued by now, we won’t.”
“But, this is the way we’ve always done it!”
Have you heard these excuses before? Have you heard them when you
have presented new ideas for better, more efficient, and more legally
correct firearms training? Have you heard these statements when you have
presented a good change of firearms policy? How do you respond?
The cases we are about to cover might be able to justify the new, better,
and legally correct training or change in policy. An agency is often
concerned about the bottom line. So, here are some “bottom line”
decisions that resulted in damage to an agency’s or an officer’s wallet and
reputation.
II.
Negligent Training
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Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
A.
A History Lesson
1.
2.
Monell et al. v. Dep’t. of Soc. Serv.1
a)
Facts: The New York City Department of Social Services
and Board of Education had official policies requiring
pregnant employees to take unpaid leaves of absence before
the leaves were required for medical reasons. A class of
employees sued under 42 U.S.C. § 19832 (civil rights
violation).
b)
The question for the United States Supreme Court was
whether or not the city had immunity from a lawsuit under
§ 1983.
c)
“We conclude . . . that a local government may not be sued
under § 1983 for an injury inflicted solely by its employees
or agents. Instead, it is when execution of a government’s
policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an
entity is responsible under § 1983.”
d)
The end result:
(1)
The local government or agency cannot be sued
under a theory of vicarious liability3 or respondeat
superior.4
(2)
The local government or agency can only be sued
under § 1983 if its policies or customs were the
“moving force” behind the constitutional injury.
Oklahoma v. Tuttle5
a)
Facts: An officer was called to the scene of a robbery at a
local bar. Tuttle tried to leave the bar when the officer
arrived. Tuttle matched the description given in the phone
call about the robbery. The officer tried to contain Tuttle
inside the bar until other officers arrived. The officer was
talking with an employee of the bar who was informing the
officer that no robbery took place. Tuttle broke away from
the officer and went outside and reached towards his boot.
When he turned toward the officer, the officer shot and
killed Tuttle. The city was sued under § 1983 under a
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Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
theory that the officer’s training had been “grossly
inadequate.” A jury found for the plaintiff and awarded
$1.5 million. The Supreme Court reversed.
b)
“[T]he Supreme Court held that a single incident of
unconstitutional activity is insufficient to impose municipal
liability unless the policy itself it unconstitutional. . . [A]
municipality could not be held liable unless it had a history
of unconstitutional . . . responses or it specifically trained
its officers to respond in a manner, which would result in a
constitutional violation.”6
c)
What it means for agency liability:
An agency cannot be held liable for one mistake of
one officer, typically. A constitutional violation by
one officer does not automatically lead to an
agency’s liability just because the agency employs
the officer. The agency itself must do (or fail to do)
something, such as provide inadequate training, which
leads to the constitutional violation.
3.
City of Canton v. Harris7
a)
Facts: The police department had a policy which required
all decisions regarding medical decisions of people in
custody be made by a supervisor. The department provided
no training to the supervisors on how to make this decision.
Plaintiff Harris was arrested and brought to the station
where she was semi-conscious and unable to stand. No
medical assistance was provided to her.
b)
“We hold today 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.”8
c)
“[I]t may happen that in light of the duties assigned to
specific officers or employees 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. In that event, the
failure to provide proper training may fairly be said to
represent a policy for which the city is responsible, and for
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Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
which the city may be held liable if it actually causes
injury.”9
d)
Applied to use of force:
The court said: “[C]ity policymakers know to a moral
certainty that their police officers will be required to arrest
fleeing felons. The city has armed its officers with firearms,
in part to allow them to accomplish this task. Thus, the
need to train officers in the constitutional limitations on the
use of deadly force . . . can be said to be ‘so obvious’ that
failure to do so could properly be characterized as
“deliberate indifference” to constitutional rights. It could
also be that the police, in exercising their discretion, so
often violate constitutional rights that the need for further
training must have been plainly obvious to the city
policymakers, who nevertheless are ‘deliberately
indifferent to the need.”10
4.
Board of the County Commissioner’s of Bryan County v. Brown11
“[T]he 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 [it] 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.”12 (Emphasis added)
5.
The Legal Bottom Line
a)
“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.”13
b)
Self-test: Ask yourselves:
(1)
Do the common tasks of being a law enforcement
officer include using a firearm?
(2)
Is there a need to train the use of a firearm?
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Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
B.
(3)
Will failure to train the use of firearm likely lead to
a constitutional harm (excessive force)?
(4)
Is there a need to train the constitutional limitations
on using a firearm?
(5)
Will failure to train constitutional limitations likely
lead to a constitutional harm?
Insufficient/Inadequate Training – Deliberate Indifference
1.
2.
Popow v. City of Margate14
a)
Facts: An officer was chasing a suspect through a
residential neighborhood at night. He shot at the suspect
and accidentally killed Mr. Popow, a resident of the
neighborhood.
b)
The officer had met the minimum training standards of the
state of New Jersey. “However, there was no instruction on
shooting at a moving target, night shooting, or shooting in
residential areas. Margate is almost completely residential.
The possibility that a Margate police officer will in the
course of his duties have to chase a suspect in a residential
area at night is not in the lease remote . . . Furthermore, the
officers viewed no films or participated in any simulations
designed to teach them how the state law, city regulations
or policies on shooting applied in practice.”15
c)
The court denied summary judgment16 for the defendants
(city). (Further research failed to find the end result of the
case.)
Sager v. City of Woodland Park17
a)
Officer Parr went through a BLET class in which the
instructor showed a tape of a handcuffing procedure. The
tape showed an officer handcuffing a suspect with one hand
and holding a shotgun to the suspect’s head with the other
hand. Officer Parr used this technique in the field and
killed a suspect while attempting to handcuff him. The
director of the officer’s academy testified in court that no
one told the academy class that the training film illustrated
the wrong way to handcuff a prisoner.
b)
The plaintiffs brought a claim of negligent training against
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Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
the city and the training academy. To prove negligence, the
plaintiff must prove the following:
3.
(1)
The city or training academy had a “duty or
obligation recognized by the law requiring the actor
to conform to a certain standard of conduct for the
protection of others against unreasonable risks.
(2)
A failure on [the city’s or academy’s] part to
conform to the standard required . . .
(3)
A (reasonably) close causal connection between the
conduct and the resulting injury . . . (and)
(4)
Actual loss or damage resulting to the interests of
another.”18
c)
“[A]s a matter of law, the risks created by the third-party
defendant’s alleged failure to train properly its officers on
shotgun-arrest technique are unreasonable, that the thirdparty defendant [city and training academy] therefore owes
a duty to train properly its officers, and that such duty
foreseeably extends to those wrongfully injured as a
proximate result of such improper training. Accordingly,
the third-party defendant’s assertion that it owed no duty to
those injured by improperly trained graduates of its
academy, is without merit.”19
d)
Summary judgment for the training academy and the city
was not appropriate. The case was remanded for trial.
(Further research failed to find the end result of the case.)
Parker v. District of Columbia20
a)
Facts: Two officers went to arrest Parker on an armed
robbery warrant. They went to a location they mistakenly
thought was out of their jurisdiction to see if they could
locate him. They were in plain clothes and in an unmarked
car. Their radios did not work at the location. They found
Parker and asked him to come with them to have the
warrant served on him. Parker replied he would go but then
ran from the house. A chase ensued. Parker was behind the
wheel of a car when one officer approached to try to
remove him from the car. The officer believed that Parker
was threatening the driver of the car and ordered him to
8
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
freeze. When Parker turned toward the officer he was shot
twice causing seriously and permanent injury.
4.
b)
The plaintiff (Parker) sued Officer Hayes and his employer,
the District of Columbia, for inadequate training under
42 U.S.C. §1983. The officer had received no physical
fitness training during his employment. One of the
allegations was that Officer Hayes was physically
incapable of subduing Parker during a scuffle which led to
the use of deadly force.
c)
“[T]his case does not involve a single incident that gives
rise to an inference of inadequate training. It involves a sad
series of mishaps linked to a policy of sorely deficient
training, supervision and discipline.”21
d)
The plaintiff’s argument was that had the officer been
physically fit and adequately trained in disarmament
techniques, deadly force would not have been necessary.
The court agreed.
e)
“[L]iability may be found . . . when there is evidence of
deliberate indifference manifest by systemic and grossly
inadequate training, discipline and supervision.”22
f)
The city was liable for $425,046.67 in damages.
Zuchel v. City of Denver23
a)
Facts: Zuchel created a disturbance at a fast food restaurant.
Officers went looking for Zuchel. He was involved in an
argument with four teenagers. As the officers approached,
one teenager shouted that Zuchel had a knife. One officer
shouted to Zuchel to get his attention. She went to go arrest
Zuchel as he turned towards the other officer who shot him.
b)
Two years earlier the police department had been involved
in five deadly force incidents in a six week period. As a
response, the district attorney had sent a letter to the chief
of police outlining training areas on which the department
to focus. The letter recommended, among other things,
“period target course, shoot-don’t shoot live training under
street conditions.”
c)
The city’s firearms training had included a lecture and a
movie on shoot-don’t shoot decisions. There was no
9
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
training beyond the academy in shoot-don’t shoot decisions.
The recommendation of the live training was never
implemented.
5.
d)
“[T]he Denver police training program in place prior to the
Zuchel shooting was inadequate, and . . . a direct
connection existed between the inadequacy and the
shooting.”24
e)
The city was liable for $330,000 in damages for an
inadequate training program, specifically inadequate
training in shoot-don’t shoot decisions.
Allen v. Muskogee25
a)
Facts: Allen left home after a domestic dispute and took
guns and ammunition with him. He went and parked in
front of his sister’s house. A 911 call went into the police
department claiming that Allen was threatening suicide.
Three officers responded. One approached in an effort to
grab the gun from Allen’s hand. Allen pointed the gun at
one officer and then at the other two, who fired twelve
times and hit Allen four times.
b)
The court, relying on Canton and Zuchel, outlined four
factors the plaintiff must prove for municipal liability for
failure to train:
c)
(1)
“[O]fficers exceeded constitutional limitations on
the use of force;
(2)
[T]he use of force arose under circumstances that
constitute a usual and recurring situation with which
police officers must deal;
(3)
[T]he inadequate training demonstrates a deliberate
indifference on the part of the activity toward
person with whom the police officers come into
contact, and
(4)
[T]here is a direct causal link between the
constitutional deprivation and the inadequate
training.”26
Based on the above four factors, the court found that the
plaintiff had sufficient evidence to show the officers were
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Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
inadequately trained in matters related to dealing with
persons with mental illnesses, emotional disturbances or
persons under the influence of drugs or alcohol. The court
found that although officers had thorough training in arrest
techniques and use of force, training that told an officer to
leave cover, approach a suicidal suspect and try to grab the
suspect’s weapon, was contrary to “common sense” and
good police practices.
6.
d)
The court also found that “a single violation of federal
rights, accompanied by a showing that a municipality has
failed to train its employees to handle recurring situations
presenting an obvious potential for such a violation, is
sufficient to trigger municipal liability.”27
e)
The summary judgment for the city was reversed. (Further
research failed to find the end result of the case.)
Brown v. Bryan County, OK28
a)
Facts: The plaintiff was a passenger in a truck that turned
around before entering a checkpoint. Several deputies
pursued and stopped the truck. Deputy Burns was a reserve
deputy who approached the passenger side of the truck and
removed the plaintiff from the truck using an “arm-bar”
technique. The deputy pulled her from the truck, spun her
around and she landed on her knees on the pavement with
the deputy’s knee in her back.
b)
The deputy had been on the force a few weeks with no
prior law enforcement experience. He had no training. He
had not received any documentation as to the duties of
being a reserve deputy. He received no supervision.
c)
The court found that the sheriff had made a decision not to
train or supervise reserve deputies. This decision was
directly related to the injuries the plaintiff received. The
sheriff attempted to argue he had no money for training.
d)
“We are sympathetic to the budget problems of local
governments, especially rural counties. The plaintiff’s
expert, however, outlined a range of no-cost training
. . . According to the evidence, [the sheriff] elected not to
pursue any of these options.”29
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Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
7.
8.
e)
“[Section] 1983 liability can attach for a single decision not
to train an individual officer even where there has been no
pattern of previous constitutional violations.”30
f)
The county was liable for $767,302 in damages and $77,
500 in attorney fees. The deputy was liable $20, 000 in
punitive damages.
Brown v. Gray31
a)
Facts: A traffic dispute erupted between Brown and offduty law enforcement officer Gray. Gray was in his
personal vehicle and was not in uniform, but was armed.
He was acting pursuant to the agency’s “always on/always
armed” policy. At one point, the cars stopped at a stoplight
and Gray approached Brown’s car and yelled that he was a
police officer. Brown drove away. When the cars stopped
again, Gray approached and Brown attempted to drive off
when Gray shot him several times.
b)
The court found that the city had no training at all on how
to take police action off-duty when the officer does not
have a uniform, patrol car, radio, available back-up or other
law enforcement tools available. When a city has a policy
in place and no training to support it, this will lead to
liability.
c)
“In a failure to train where, as here, the policy itself is not
unconstitutional, a single incident of excessive force can
establish the existence of an inadequate training program if
there is some other evidence of the program’s
inadequacy.”32
d)
The city was liable for $400,000 to plaintiff.
Young v. City of Providence33
a)
Facts: Two law enforcement officers responded to a call of
a disturbance at a restaurant. There was an off-duty officer
inside who came out of the restaurant to assist. His gun was
drawn and he was shot and killed. The off-duty officer was
acting pursuant to the city’s “always on/always armed”
policy. The trial court granted summary judgment to the
city on the failure to train claim.
12
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
C.
b)
The plaintiffs claim a lack of training in “avoiding onduty/off-duty misidentification of fellow officers.” The
court found that there was “enough evidence that the City
was deliberately indifferent to its training and lack of
protocols in this area and that the training deficiencies and
absence of protocols were causally linked to . . . use of
excessive force.”34
c)
The training for the city was provided to new recruits and
at in-service training. The training for firearms
included live shoot/don’t shoot decisions and virtual
scenarios. The testimony was not clear as to whether or not
the decision scenarios involved off-duty officers.
d)
Although there was testimony that some training involving
off-duty officers was presented, there was no
documentation as to this specific training.
e)
The summary judgment for the City was reversed and the
case remanded back for trial on the claim of negligent
training. (Further research failed to find the end result of
the case.)
Unconstitutional Training
1.
Spell v. McDaniel35
a)
Facts: Spell, under the influence of alcohol and Quaaludes,
was arrested for DWI, taken to the police station, and
subjected to various sobriety tests. Spell completed the
sobriety tests and was returned still handcuffed and
inebriated to Officer McDaniel. McDaniel, without any
physical provocation, assaulted Spell by violently kneeing
Spell in the groin, causing a rupture of the testicle,
necessitating its surgical removal. This resulted in
irreversible sterility and pain and suffering. He sued the
city under the theory that McDaniel’s conduct was pursuant
to a municipal policy or custom.
b)
The testimony which emerged at trial was proof that the
policy maker (the Chief) showed a reckless disregard or
deliberate indifference for the constitutional rights of
person and that this resulted in deficiencies in training. The
trial included the testimony for the plaintiff by seven lay
citizens, eight present or former officers of the department,
an assistant state district attorney, the former legal advisor
13
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
to the police department, and the department’s own internal
records. Testimony was given about the training of new
officers in the technique of kneeing people in the groin and
that Chief Dixon advocated the use of excessive force by
police officers in dealing with arrestees and the corrective
action should not be taken to punish or prevent its
continuation.
2.
c)
“The way in which a municipal police force is trained,
including the design and implementation of training
programs and the follow-up supervision of trainees, is
necessarily a policy . . . To the extent that a particular
training policy is fairly attributable to a municipality, it is
‘official municipal policy.’ To the extent such an official
municipal policy has deficiencies resulting from municipal
fault that then cause specific constitutional violations by
deficiently trained officers, the municipality is liable under
42 U.S.C. § 1983.”36
d)
The city was liable for $900,000 to the plaintiff as well as
$335, 942 in attorney fees.
Davis v. Mason County37
a)
Facts: Over a nine month period several officers were
involved with separate incidents involving traffic stops
with five individuals. These traffic stops resulted in arrests,
beatings and false charges which were ultimately dropped.
The individuals brought a lawsuit against the officers and
the county.
b)
“The issue is not whether the officers had received any
training – most of the deputies involved had some training,
even if it was minimal at best – rather the issues is the
adequacy of the training. . . More importantly, while they
may have had some training in the use of force, they
received no training in the constitutional limits on the use
of force.”38 (Emphasis added)
c)
The court awarded the plaintiffs:
(1)
$528,000 from the individual officers
(2)
$481,500 in punitive and compensatory damages
from the County
14
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
(3)
D.
Training Injuries
1.
E.
$323,559.65 in attorney fees
Duncan v. Arizona39
a)
Facts: Cadet Daley and Cadet Duncan were in a basic law
enforcement training academy. During a lunch break Cadet
Daley ran an errand and returned late to class. The class
was engaged in a felony stop exercise with one cadet
playing the officer and one cadet playing the felony suspect.
The policy at the academy was that an instructor would
inspect the cadet’s firearm to insure it was not loaded. The
cadet was to check his own firearm and a second student
was to check the firearm, all to insure the weapon was
unloaded. When Cadet Daley returned to class, he was
placed in the felony stop exercise as the police officer and
Cadet Duncan was the felony suspect. No one checked
Cadet Daley’s gun. During the exercise, Cadet Daley fired
his weapon and shot Cadet Duncan in the back of the head
killing him.
b)
“[T]he jury could reasonably have found that the City of
Eloy was negligent when it issued a firearm and
ammunition to [an officer] without providing adequate
firearms safety training.”40
c)
The student, the community college, the instructor, and the
city were found liable in a 3.4 million dollar award.
Lessons Learned at a Cost of: $ 7,251, 848.67 in damages and $
737,001.67 in attorney fees.
1.
Is your training based on a task analysis?
2.
Does your training take into account the physical area patrolled
and the population?
3.
Do you train active decision making?
4.
Do you train constitutional limitations on use of force?
5.
Do you train every officer based on the duties of their jobs?
6.
Do you pursue training despite a lack of funding?
15
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
F.
7.
Do you train your policies in addition to the law? Are the policies
constitutional?
8.
Are you training sound practices and techniques in class?
9.
If you use guest instructors, do you know what they are training?
10.
Is your training reasonable in terms of safety procedures? Do you
follow those procedures?
Hypothetical #1
Your department has a written firearms qualification policy. Every officer, every year
must qualify according to the policy. There are two exceptions to the annual qualification:
officers out on disability or officers deployed with the military. Those officers are
required to qualify upon return to the department.
The mandatory, annual qualification consists of a two-hour lecture on the department’s
use of force policy, a movie produced by a private company on shoot/don’t shoot
decisions and a day and night qualification course on stationary targets. Part of the
qualification course requires an officer complete the course of fire within a time limit.
1.
You supervise the firearms program but have had one of your firearms instructors
complete the annual qualification for Squad A (half of the department) for the last
two years. You have completed the qualification for Squad B for the last two
years. Officer Smith from Squad B was unable to complete the course of fire
within the time limits at this year’s qualification. He complains to you that this is
unfair because there are no time limits for Squad A’s qualification. When you
investigate you discover that your firearms instructor has waived the time limits
on the qualification for the past two years.
Is this a liability issue? If so, what, if anything, do you need to do?
2.
Upon talking to your firearms instructor you discover that he waived the time
limits because the Chief of your department asked him to.
Is this a liability issue? If so, what, if anything, do you need to do?
3.
Upon reviewing your training records you discover that the Chief has not attended
or completed the qualification course in the last two years. He is still carrying his
service-issued firearm.
Is this a liability issue? If so, what, if anything, do you need to do?
4.
After attending an IALEFI conference, you return to your department with ideas
on changing the annual qualification. You present to your department’s
16
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
administration the following changes: An additional two hours for the lecture to
include material and discussion on the constitutional limitations on the use of
force; omitting the movie and replacing it with live, simulation based training on
shoot/don’t shoot decisions; and adding a combat course qualification to simulate
the terrain and geographical/residential areas your department covers.
List the arguments you will hear in opposition to these changes.
List your arguments in support.
G.
Hypothetical #2
You, as the lead firearms instructor in your agency, are called to Chief/Sheriff’s office.
You are confronted with the following use of force situation involving two officers
within your agency:
Officer Collins and Officer Smith were on foot patrol on a busy city street shortly after
noon that day. The two officers notice Mr. Atchinson as he walks down the street
carrying a machete (he had just purchased at a surplus store). The two officers are across
the street from Atchinson. One officer yells for Atchinson to freeze. Atchinson turns
towards the officer and Officer Collins shoots Atchinson.
The Chief/Sheriff wants to know if there is going to be problematic when the lawsuit
comes around. Give him/her your opinion as to the legality of the use of force.
The Chief/Sheriff lets you know that Collins is claiming that your firearms program
supports what he did. Does this claim cause you concern? Why or why not? If so, what
can you do?
III.
Conclusion
A.
Summary
B.
Questions
C.
Closing Statement
17
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
NOTES
1
Monell et al. v. Dep’t. of Soc. Serv., 436 U.S. 658 (1978).
“Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable tot eh party injured in an action at law, suit in equity, or other proper
proceeding for redress . . .” 42 U.S.C. § 1983.
2
“The imposition of liability on one person for the actionable conduct of another, based
solely on the relationship between the two person.” Black’s Law Dictionary, 1566.
3
“Let the master answer. This doctrine or maxim means that a master is liable in certain
cases for the wrongful acts of his servants, and a principal for those of his agent.” Black’s
Law Dictionary, 1312.
4
5
Oklahoma v. Tuttle, 471 U.S. 808 (1985).
Spector, Elliot B., “Police Civil Liability & The Defense of Citizen Misconduct
Complaints.” Presented at AELE Conference, Las Vegas, NV October 2004, 27.
6
7
City of Canton v. Harris, 489 U.S. 378 (1989).
8
Ibid., 388.
9
Ibid., 390.
10
Ibid., 390, n. 10.
11
Board of the County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997).
12
Spector, 27.
13
Ibid., 28.
14
Popow v. Margate, 476 F.Supp. 1237 (D. NJ 1979).
15
Ibid., 1246.
16
Procedural device used in civil matters where there is no genuine issue of material fact
and the party moving for summary judgment may prevail because they are entitled to
judgment as a matter of law.
17
18
Sager v. Woodland Park, 543 F.Supp. 282 (D. Colo. 1982).
Ibid., 298, quoting Prosser, Law of Torts (1973).
18
Training Gone Wrong: Analysis of Negligent Training Cases and
Application to Firearms Training
19
Ibid., 298.
20
Parker v. D.C., 850 F.2d 708 (DCCir. 1988).
21
Ibid., 712.
22
Ibid.
23
Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993).
24
Ibid., 740.
25
Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997).
26
Ibid., 841-842.
27
Ibid., 842.
28
Brown v. Bryan Co, OK, 219 F.3d 450 (5th Cir. 2000).
29
Ibid., 455, n. 7.
30
Ibid., 459.
31
Brown v. Gray, 227 F.3d 1278 (10th Cir. 2000).
32
Ibid., 1286.
33
Young v. City of Providence, 404 F.3d 4 (1st Cir. 2005).
34
Ibid., 10.
35
Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987).
36
Ibid., 1389.
37
Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991).
38
Ibid., 1483.
39
40
Duncan v. Arizona, 157 Ariz. 56, 754 P.2d 1160 (1988).
Ibid., 61.
19