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DELIBERA.LEB
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1990-11-09
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October 1990
DELIBERATE INDIFFERENCE:
THE STANDARD FOR MUNICIPAL
AND
SUPERVISORY LIABILITY
By
Michael Callahan, J.D.
Special Agent and Principal Legal Advisor
FBI Field Office
Boston, Massachusetts
This article discusses the potential liability of municipal
corporations and police supervisory officials for the
unconstitutional conduct of lower echelon police personnel. The
article specifically focuses on the extent of liability for
deficiencies in training and supervision. The standard of
liability for municipalities and supervisors and the type and
amount of proof required to meet that standard will be examined.
Also, practical suggestions will be offered to reduce exposure to
this type of liability.
THE GENESIS OF MUNICIPAL CORPORATE LIABILITY
The U.S. Supreme Court, in Monell v. New York City
Department of Social Services (1) ruled that a municipal
corporation may be liable under 42 U.S.C. Sec. 1983 (2)
(hereinafter Section 1983) for adopting and executing a formal
policy that results in a constitutional deprivation. Moreover,
the Court ruled that liability can occur for constitutional
violations caused by municipal ``customs'' or informal policies,
even though they have not been officially approved by city
policymakers. The Court made clear that liability is based
solely on the unconstitutional conduct of municipal policymakers
and rejected the idea that liability could be based on the
theory of respondeat superior, which imposes liability on an
employer for the wrongful action of an employee regardless of
the absence of fault on the part of the employer.
Following Monell, Federal courts faced many Section 1983
suits directed against cities that were based on a claim that
the city had adopted a ``custom'' or policy of inadequate
training or supervision of police officers. During much of this
period, there was considerable judicial disagreement concerning
the standard by which municipalities should be judged in these
suits, (3) as well as the type and amount of evidence needed to
prove an inadequate training or supervision case. (4) The Supreme
Court resolved much of that uncertainty in its 1989 decision in
City of Canton, Ohio v. Harris. (5)
SUPREME COURT ADOPTS DELIBERATE INDIFFERENCE STANDARD
In Canton, the plaintiff was arrested for a traffic
offense, and after refusing to cooperate, was carried to the
patrol wagon because she could not or would not walk on her own.
Upon arrival at the police station, she was discovered on the
wagon's floor and responded incoherently when a shift commander
asked if she needed medical attention. During booking she fell
off a chair several times and was allegedly left on the floor to
prevent further injury. No medical attention was summoned by the
police. After being released, she was transported by private
ambulance to the hospital where she was diagnosed as suffering
severe emotional ailments and was hospitalized for a week. She
sued under Section 1983, alleging that the city deprived her of a
constitutional right to medical care by failing to adequately
train officers at detention facilities in deciding when
prisoners required medical attention.
Trial evidence disclosed that it was city policy to give
shift commanders sole discretion to decide when a prisoner needed
medical care and that these commanders received no special
medical training to assist them in that decision. The jury
returned a $200,000 judgment against the city, and the U.S. Court
of Appeals for the Sixth Circuit affirmed (6) that the proper
standard for municipal liability regarding inadequate training
is gross negligence.
In a landmark decision, the U.S. Supreme Court reversed that
lower court ruling and held that inadequate police training can
serve as the basis for liability only where the failure to train
amounts to deliberate indifference by city policymakers to the
constitutional rights of persons contacted by police officers.
By adopting the higher deliberate indifference standard, the
Court rejected the gross negligence standard that had been
adopted by many lower Federal courts. (7) The 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.
The Court offered two examples of what would constitute
deliberate indifference. First, where city policymakers 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, and the 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.
LOWER COURT DECISIONS
Several Federal appellate cases have been decided since
Canton involving claims of inadequate training and supervision.
(8) For example, in Bordanaro v. Mcleod, (9) an off-duty police
officer allegedly had an altercation with patrons at a motel bar
and then notified on-duty officers that he needed assistance.
The entire night shift allegedly responded to the motel,
eventually firing two shots and forcing entry into a motel room
where several occupants were allegedly beaten, resulting in the
death of one of the occupants. A Section 1983 suit filed
against the officers, the city, the police chief, and the mayor
resulted in a jury verdict of approximately $4.3 million.
The U.S. Court of Appeals for the First Circuit affirmed
the finding against the city based on a finding of deliberate
indifference. The court concluded that the injuries were
proximately caused by an unconstitutional ``custom'' of breaking
down doors without warrants based, in part, on the testimony of
a police sergeant that the department had a long-standing
practice of making such entries. Although there was no direct
evidence that the chief or mayor were aware of this practice,
the court observed that the practice was so widespread that they
should have known about it and corrected it. Their failure to
do so amounted to deliberate indifference.
Moreover, the court observed that department rules and
procedures issued in 1951 failed to address current standards of
search and seizure, hot pursuit, and the use of deadly force.
Little or no inservice training was provided regarding the use of
force after basic training, and no training was required for
officers who were promoted to supervisory rank.
With regard to a finding of deliberate indifference in
supervision, the court observed that the department placed many
citizen complaints against officers in a dead file without
investigation and that discipline was often haphazard,
inconsistent, and infrequent. Moreover, discipline for the motel
incident took over a month to occur, and the officers involved
were suspended only after indictment. A full internal inquiry
did not begin until a year after the motel incident. The court
also found that the department's method of background ch