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Unformatted text preview: Section 1983:
Policy and Custom
Part 2 CRJU E491P, Police Liability
Spring 2011, Mr. Smith Police officers must comport themselves in accordance Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather, they compete for their positions. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities.
Bordanaro v. McLeod (1989) Section 1983 Revisited
“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 to the party injured in an action at law, suit in equity, or other proper proceeding for redress…” Famous Footnote 10 Revisited
For example, city policy makers 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, see Tennessee v. Garner, 471 U.S. 1 (1985), 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 policy makers, who, nevertheless, are “deliberately indifferent” to the need. Bordanaro v. McLeod (1989)
Bordanaro Everett, Massachusetts policeman, John McLeod, who was off duty, escorted Beverly Ferrairo to a bar located inside the King Arthur Motel in Chelsea, Massachusetts.
An altercation occurred between McLeod and Charles Dimino. Dimino beat McLeod severely.
McLeod called the Everett Police Department for reinforcements and the entire night watch of the Everett Police Department went to the motel to assist McLeod.
The police approached the locked glass doors of the motel and demanded entry. Before the manager could open the doors, the police shattered the glass with their nightsticks. Dimino and others with him in the motel, fearing for their safety, ran upstairs to Room 209. Once the doors had been opened, the police rushed into the motel and ran up the stairs in pursuit of Dimino and the others.
The officers were armed with nightsticks, clubs, bats, tireirons, and a fire axe, in addition to their service revolvers, banged repeatedly on the door to Room 209, demanding entry and continuing to threaten the occupants inside.
A hole was drilled in the door through which mace was injected into the room and an officer fired two shots from his pistol through the door. The officers broke the door down and, once inside, they beat the heads and bodies of the unarmed occupants until most were reduced to an unconscious or semi
conscious state. McLeod repeatedly slammed Vincent Bordanaro's head against the wall and clubbed the other occupants with a bat, all the while stating again and again, “Remember my name, John McLeod, don't forget it.” Bordanaro died as a result of the repeated blows to his head.
The victims filed suit under section1983 against the individual police officers, the Cities of Chelsea and Everett, their two Chiefs of Police and their two Mayors. The Basic Rule
The While evidence of single event alone cannot establish municipal custom or policy, for purposes of imposing liability on municipality under section 1983, where other evidence of policy has been presented and the “single incident” in question involves concerted action of large contingent of individual municipal employees, the event itself provides some proof of existence of underlying policy or custom. Unconstitutional Municipal Custom
Unconstitutional Courts have established two requirements for maintaining a section 1983 action grounded upon an unconstitutional municipal custom. The custom or practice must be must be so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it and yet did nothing to end the practice. The custom or practice must have been the cause of and the moving force behind the deprivation of constitutional rights. Establishing Existence of Custom
Establishing Testimonial evidence from Sergeant Ferullo showed that the Everett Police Department had a longstanding, widespread, and facially unconstitutional practice of breaking down doors without a warrant when arresting a felon.
A 12pound sledge hammer was provided by the City of Everett for use in breaking down doors without a warrant when attempting to arrest a felon. When asked whether this type of force was used by the Everett Police in effecting arrests the sergeant stated: “[Y]es, that's the way we've always applied it.”
In breaking down the door at the King Arthur Motel, the officers were following what had been accepted departmental practice in the past. This uncontradicted version of the arrest practice that was employed by the Everett Police Department proved that such an unconstitutional custom was “ ‘the way things [were] done and [had] been done’ ” in the City of Everett. Attribution to the Municipality
Attribution Although there was no direct evidence that the Chief of Police had actual knowledge of this policy of breaking down doors without a warrant, the evidence does support a finding of his constructive knowledge of it. Constructive knowledge “may be evidenced by the fact that the practices have been so widespread or flagrant that in the proper exercise of [their] official responsibilities the [municipal policymakers] should have known of them.” The evidence showed that the Chief utilized an extensive report review process to monitor the conduct of his officers and to ensure their compliance with the rules of the department. Such a review process would alert the Chief to practices that transgressed department policy. Knowledge of the practice may thus be imputed to the Chief. Allowing this custom to continue amounted to a deliberate indifference to the rights of the citizens of Everett, making a constitutional violation “ ‘almost bound to happen, sooner or later.’ ” Deficient Custom or Policy in Recruitment
Training Supervision or Discipline
The issue in a case like this one ... is whether the training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent “city policy.” It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it 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. Establishing Deficient Recruitment
Establishing Background checks of prospective officers, the best indication of future performance, were superficial, at best, and failed to reach minimal levels of acceptability. In particular, psychological examinations, which a city ordinance required be given to all police officers, were often not performed. Liability for Failure to Train
Liability Under certain circumstances, a municipality can be held liable under section 1983 for constitutional violations resulting from its failure to train its employees.
Inadequacy of police training may serve as basis for section 1983 municipal liability only where the failure to train amounts to deliberate indifference to rights of persons with whom police come into contact.
Only where a municipality's failure to train its employees in relevant respect evidences “deliberate indifference” to rights of its inhabitants can the failure be classified as municipal “policy or custom” that is actionable under section 1983. In resolving the issue of a municipality’s liability for failing to properly train police officers, focus must be on adequacy of training program in relation to tasks particular officers must perform.
That a particular officer may be unsatisfactorily trained will not alone suffice to attach liability in that the officer's shortcomings may have resulted from factors other than the faulty training program. Establishing Deficient Training
Establishing The City of Everett was operating under a set of rules and regulations promulgated in 1951 and last distributed to the officers in the midsixties.
Everett officers received little or no formal training after completing their initial police academy courses. The officers thus lacked uptodate direction in many police procedures, including the proper use of force.
There was no supervisory or command training required upon promotion to a higher rank. Supervisory officers, therefore, lacked the basic training due all officers and the command training necessary to effectively supervise and operate a police force. Establishing Deficient Supervision
Establishing Since few rules or guideposts for conduct were in force, the organization of the police department placed too much discretion at all operating levels.
A full, internal investigation by the Everett Police Department did not occur until over one year after the King Arthur incident.
The Chief's review of civil grievances filed against Everett officers for their misconduct fell well below accepted levels. Many complaints were placed in a dead letter drawer never to be seen again. Establishing Deficient Discipline
Establishing In the past, discipline had been meted out haphazardly, inconsistently, and infrequently to Everett officers.
No disciplinary actions were instituted against the officers involved in this incident until over one month after the episode. A number of the officers were then suspended, because they had been indicted by the Suffolk County District Attorney. Attribution to the Municipality
Attribution In addition to proving the great inadequacies in the recruitment, training, supervision or discipline of Everett police officers, plaintiffs must also establish that municipal officials charged with the responsibility of making policy for the police department were “deliberately indifferent” to these failings.
Both the Chief and the Mayor had express knowledge of the lack of any effective policy for the recruitment, training, supervision or discipline of Everett police officers. Everett officers who sought out further training were affirmatively discouraged from doing so.
The testimony of the Mayor and the Chief indicate clearly that they knew that there was no mandatory training required of Everett patrolmen or supervisory officers, aside from emergency medical instruction and police academy training.
The Mayor had been sued by Everett police officers to force him to pay the monetary benefits due them under a state law that compelled municipalities to give economic incentives to police officers who voluntarily take college
level law enforcement courses. Deliberate Indifference
Deliberate The evidence was sufficient to prove that city officials were deliberately indifferent to the need for better recruitment, training, supervision or discipline of its police officers and that those inadequacies caused injuries sustained by the persons who were beaten by police officers so as to render the municipality liable under section 1983.
The jury instruction equating deliberate indifference with “not giving a damn,” for purposes of determining whether municipality could be held liable in civil rights action for injuries sustained by persons who were beaten by police officers, when read with other instructions, correctly defined appropriate standard. The failure of the entire night watch of the Everett Police Department to act at even minimally acceptable levels of police conduct was directly linked to the city's policy of deficient recruitment, training, supervision and discipline of its police force. The Rules and Regulations contained no information, and the Everett officers were given no uptodate training on, the use of force, deadly or otherwise, hot pursuit, or search and seizure. The lack of proper training on these essential elements of law enforcement led directly to the constitutional violations at the King Arthur Motel. Due to the inadequacy of his supervisory training, Sergeant Ferullo abdicated his responsibility to the plaintiffs and left a volatile scene that demanded control by a supervisory officer. The absence of a strictly enforced disciplinary system led the officers at the King Arthur Motel to believe they were above the law and would not be sanctioned for their misconduct. A sufficiently supervised, properly recruited, trained and disciplined group of officers would not have acted so far below the level of accepted police behavior.
We point out that liability is levied here not because the city hired “one bad apple,” but because the city's police policy produced an entire barrel of bad apples. ...
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- Spring '11