CLIENT ALERT MEMORANDUM
July 12, 1999
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer and Paul R. Coble
“TO RIDE OR NOT TO RIDE”
John Jones is the Chief of Police of an agency with approximately 75 sworn personnel. He has served as either the Chief of Police or Captain (Second in Command) for the past fifteen years. During this time, he has not participated in either advanced officer training or in any patrol activity.
A major incident occurs (riot, fire, flood, etc.) and the agency is on full deployment. All personnel, including the Chief are in uniform and assigned to the field. During this time, the Chief participates in law enforcement activity including making arrests. One of the subjects arrested by the Chief alleges that he was injured as a result of the Chief’s negligent behavior and use of excessive force.
Officers in supervisory and managerial ranks frequently do not take part in ongoing training nor participate in patrol activities. Since it is common in all but the larger organizations that command officers may be required to engage in law enforcement activities, concern exists regarding the ability of those individuals to perform law enforcement tasks in a competent fashion free from negligence.
Since command officers are still peace officers, the department must be able to prove that all who function as peace officers have been adequately trained. In California, the State Commission on Peace Officer Standards and Training (“POST”) mandates advanced officer training that consists of at least 24 hours of training every 24 months. There appears, however, to be no requirement that command officers continue to ride patrol. If command officers are going to engage in law enforcement activity, a failure to participate in training and remain competent in the area of utilizing force could create significant liability.
It is well recognized that inadequate training can be viewed as a “policy” which would be actionable under 42 U.S.C. § 1983. In the case of Harris v. City of Canton, Ohio, 109 S.Ct. 1197 (1989), the United States Supreme Court addressed the concept of “deliberate indifference.” The court held that a municipality could be responsible for failure to train where the plaintiff could prove that the municipality acted recklessly, intentionally or with deliberate indifference to the rights of the people with whom they would come in contact. This requires more than mere negligence; it requires proving the department was conscious of the need to supply training and made a deliberate choice to not provide it and/or not insure that training occurred. The court went on to state that “for liability to attach, the identified deficiency in a city’s training program must be closely related to the ultimate injury.”
Training supervisors in the use of force, forcible entry and other matters may be necessary to be extent that those individuals supervise these activities. The need for such training becomes more important when a department knows or should be aware of the fact that its supervisors and command staff peace officers will in fact be involved in law enforcement activity.
It is important to point out that in Harris v. Canton, Ohio, supra, the court emphasized that merely because an officer was not properly trained, or that better training could have been provided, would not mean that liability would result. The court also stated that there would be no liability if an adequately trained officer made a mistake as that does not indicate that the training program was defective nor that the employing entity knew it was defective.
However, command officers who may perform law enforcement tasks have not received ongoing training in firearms, use of force techniques, and/or arrest procedures, an argument of “deliberate indifference” could be made. In an effort to reduce this potential liability, some agencies not only require command officers to participate in appropriate training and range activity, but also to “suit-up” and ride patrol one shift per month. By doing so, they stay familiar with procedures, as well as with their community, and it shows support for the officers in the field.
Another area of concern pertains to the American with Disabilities Act (“ADA”) and the essential functions of the job. According to EEOC Guidelines, the essential functions of any job are primarily articulated by the employer. Although the determination of essential functions by the employer is considered as evidence, it is not determinative. Focus will also be on whether all sworn members of the department are required to perform the “essential” functions of the job.
It is recognized that certain administrative roles do not require the same level of expertise as is required of those who engage in those functions on a daily basis. Nonetheless, if the chief and/or command officers are still classified as peace officers, retain all the rights and benefits of peace officers, are armed on and off-duty because they are peace officers, but are not required to carry out the functions classified as essential by the employer, an attack on the classification of those functions as essential might be successful. Conversely, if the evidence shows that all employees who are classified as peace officers are required to perform those functions, it is much easier to defend against such a challenge.
In conclusion, if any peace officer is going to engage in law enforcement activity, the adequacy of training will be an issue. A successful defense can only be presented if it can be shown that all personnel participated in the training. By ensuring that all officers, and certainly those below the rank of sheriff or chief, actually participate in law enforcement activity by riding patrol at least once a month, it will be easier to meet the burden of proving that all of the department’s peace officers are required to perform the essential functions of that job.
/ WHAT DOES THIS MEAN FOR YOUR DEPARTMENT?
It is important that all members of the department who may engage in field or line law enforcement activity maintain their level of training and competence in essential tasks such as use of force, laws of arrest, and laws governing search and seizure. This will serve to help insulate the department against claims arising from actions which, though well intentioned, are not compliant with current legal standards.
If you wish to discuss this matter in detail, please feel free to call us at (562) 590 8280.
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