Liability for Police Lineups

Recent DNA exonerations have revealed a significant problem with eyewitness IDs based on lineups. They’ve also changed the landscape for failure to train officers on reliable lineup procedures, and more …

  1. Police officers carry firearms, in part, to enable them to arrest fleeing felons – an expected job duty. “Thus, the need to train officers in the constitutional limitations on the use of deadly force … can be said to be ‘so obvious,’ that the failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional rights.”
  2. Where officers, in exercising their discretion, so often violate constitutional rights that the need for further training should have been plainly obvious to the city policymakers, who, nevertheless, are "deliberately indifferent" to the need."

Harris at 390, n. 10.

1983 claims against officers based on police lineups.

To prevail in a 1983 claim against individual officers, plaintiffs must prove two essential elements:

  1. That the alleged conduct occurred under color of law.
  2. That the conduct deprived them of rights, privileges, or immunities secured by the United States Constitution or a federal statute.

The first element is proven if the officer is acting within the scope of his employment. Administering a police lineup would meet this element.

But the second element of causation has been elusive in Section 1983 claims based on police lineup cases, as we shall see in the discussion below of the recent Second Circuit case of Wray v. City of New York, New York Police Dept. and Officer William Weller, 490 F. 3d. 189 (2nd Cir. 2009),

1983 claims against departments based on failing to train officers on how to conduct lineups.

To prevail on a Section 1983 claim against a police agency based on failure to train, there must be sufficient evidence to establish:

  1. A violation of a federally-protected right;
  2. Inadequate training of officers “so obvious” as to constitute “deliberate indifference;” and
  3. Causation between the inadequate training and the plaintiff's injury. Could the harm have been avoided had the officer been trained under a program that was not deficient?

What does this mean for failure to train on police lineups?

In The Hot Debate on Police Lineups we looked at highly publicized DNA exonerations that have revealed significant problems with eye witness misidentifications in police lineups and the research on how to make lineups more reliable.

As reported in that article, one result of such publicity and research has been the adoption of new policies and procedures for conducting lineups by the U.S. Department of Justice, numerous state legislatures and commissions, and many state and local law enforcement agencies. Training officers in the new procedures is a necessary element of implementing them.

The argument for plaintiffs in a failure to train claim is that it is obvious to an already large and growing number of police departments that they need written, research-based policies for conducting lineups in which officers must be trained.

A lack of written policies and adequate guidance may establish deliberate indifference. Vineyard v. County of Murray, 990 F.2d 1207 (11th Cir.) (1993) (Section 1983 claim against police department for inadequate training on legitimate use of force upheld).

While the recent media frenzy surrounding DNA exonerations may help plaintiffs establish the deliberate indifference to adequate training element, proving causation has proved more difficult.

In the recent case of Wray v. City of New York, New York Police Dept. and Officer William Weller, 490 F. 3d. 189 (2nd Cir. 2009), the court addressed two 1983 claims:

  1. One against Officer Weller for performing an unduly suggestive show up.
  2. The second against the City of New York and its police department for failing to adequately train and supervise its police officers on proper identification procedures.

The claim against the individual officer failed on the issue of causation. Even assuming, as the court did, that the show up was unduly suggestive, the court held that this did not deprive Wray of his constitutional right to a fair trial. Rather, it was the erroneous admission of the unreliable identification evidence – caused by intervening acts of the prosecutor and trial judge.

The court explained,

“In the context of an identification following a police procedure that was impermissibly suggestive, the due process focus is principally on the fairness of the trial, rather than on the conduct of the police, for a suggestive procedure ‘does not itself intrude upon a constitutionally protected interest.’”


The Wray court also denied the claim against the City, reasoning:

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