Previously on officer.com.
In The Hot Debate on Police Lineups and Defending Your Lineup in Court we looked at:
- The latest research on police lineup reliability
- How this science is being used to develop new lineup procedures and
- How defense attorneys are attacking lineups in court if police don’t use best practices.
(Web links below.)
This article looks at how the current landscape of police lineups may give new legs to “failure to train” litigation under 42 U.S.C 1983.
Section 1983 – the first 100 years. (Web link below to Liability Under Section 1983.)
Section 1983 of Title 42 of the United States Code basically provides that:
A person who, under color of law, deprives another person of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.
It was originally enacted by Congress in 1871 as part of the Ku Klux Klan Act and was intended to enforce the Fourteenth Amendment by providing a civil remedy to African Americans against KKK abuses. It was also intended to protect all citizens against state sponsored infringement of constitutional rights. The argument for monetary redress was that injunctive relief doesn’t address harm already incurred.
Section 1983 lawsuits were scarce for almost a century. Then, in 1961 the Supreme Court issued its landmark decision Monroe v. Pape, just in time for the Civil Rights era of the 1960s.
The Supreme Court expands liability – within limits.
In Monroe, the Court ruled that nine Chicago police officers could be civilly liable under section 1983 for acts done in their official capacity. The case involved a raid on the Monroe family residence -- without a search or arrest warrant -- in connection with a murder investigation. Officers “tossed” the house while requiring Mr. and Mrs. Monroe to stand naked in the living room. Mr. Monroe was taken to the police station and interrogated while being denied any phone call. He was subsequently released without charges.
Civil liability was expanded in 1978 with the Supreme Court’s decision in Monell v. Dept. of Social Services of the City of New York that government agencies qualified as “persons” under section 1983. Now plaintiffs could sue departments and municipalities could be liable for the actions of officers.
This expansion wasn’t without limits. The Court held that governmental agencies were not liable under a simple respondent superior theory which provides that an employer may, in certain circumstances, be responsible for actions of its employees in the course of their employment. Instead, for a governmental entity to be liable under Section 1983, the deprivation of a constitutional right must have resulted from a “policy or custom” of the government that was the "moving force" behind the violation.
In City of Canton v. Harris, 489 U.S. 378(1989), the Court ruled that one way to establish a causal link between a department’s policy or custom and the deprivation of a constitutional right by officers is that the department failed to properly train officers in the particular area at issue in the litigation. The Court also imposed limits on this theory of liability, holding:
“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.”
The individual shortcomings of a police officer or even the negligent administration of an "otherwise sound program" are insufficient to establish liability of the governmental entity under Section 1983.
The Harris Court gave two examples of when the need for training would be “so obvious” that failure to provide it might show deliberate indifference.
- 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.”
- 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:
- That the alleged conduct occurred under color of law.
- 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:
- A violation of a federally-protected right;
- Inadequate training of officers “so obvious” as to constitute “deliberate indifference;” and
- 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:
- One against Officer Weller for performing an unduly suggestive show up.
- 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:
In light of our conclusion that there was a break in the chain between Officer Weller's alleged conduct and the denial of Wray's constitutional rights, Wray's claim regarding the City's failure to train or supervise its police officers likewise fails for lack of causation. Officer Weller's conduct was not itself the cause of the constitutional deprivation; the City's alleged failure to train him adequately—a step even further removed - cannot, therefore, be the "actual cause" of the constitutional deprivation.
I’m not the only one not comforted by the Wray opinion. Just this month in Police Chief Magazine, Jack Collins, General Counsel for the Massachusetts Chiefs of Police Association warned that the recent, highly publicized DNA exonerations may have changed the landscape for failure to train claims. (Web link below.)
That author also opines that all the publicity surrounding eyewitness misidentification and unreliable lineups in the exoneration cases arguably put departments on constructive notice of due process violations satisfying the deliberate indifference requirement.
Judges are lawyers and you can’t get two lawyers to agree to kill a rat in a bathtub. I wouldn’t count on other courts agreeing that obviously unreliable police lineups don’t violate a suspect’s due process rights.
But, the most important reason to train officers on research-supported, best lineup practices is not to avoid a civil lawsuit. It’s to reduce wrongful arrests, prosecutions and convictions.
- Liability Under Section 1983
- Monroe v. Pape
- Monell v. Dept. of Social Services of the City of New York
- City of Canton v. Harris
- Failure to Train as a Theory of Section 1983 Liability
- Wray v. City of New York, et. al.
- DNA Exoneration Cases May Breed “Failure to Train” Claims
About The Author:
Described by Calibre Press as "the indisputable master of enter-train-ment," Val Van Brocklin is an internationally sought speaker, trainer and noted author. She combines a dynamic presentation style with over 10 years experience as a prosecutor where her trial work received national media attention on ABC's Primetime Live, the Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK. In addition to her personal appearances, she appears on television, radio, and webcasts, in newspapers, journal articles and books. Visit her website: www.valvanbrocklin.com