You are legally, morally and ethically responsible for the final resting place of every round you fire!
Over the last 25+ years as a Private Investigator / Executive Security Professional and Firearms Instructor I have seen law enforcement training programs come a very, very long way. Early on in my career it was not uncommon for individual officers to seek me out for a private tune up just so he would be able to pass the approaching annual qualification course of fire. Fast forward to the present and many departments are now conducting department wide high speed advanced tactical firearms training that was once reserved only for special operators and/or SWAT teams, including scenario based force-on-force and force-on-target training focused on both individual and team tactics, as well as officer survival. The result is officers who are not only better skilled, they also understand the dynamics of a lethal force fight, and are duly motivated.
The drivers of the aforementioned training often require two (2) equally important factors. The first being a pro-training “director of training”, i.e. someone who values actual training as opposed to just getting everyone qualified. This individual is normally also someone who is willing to travel on his/her own time and dollar to participate in advanced tactical and instructor level programs. The second is of course funding; some departments have it, and unfortunately others are understaffed and operating on a shoestring budget, literally being forced to use patrol vehicles with 200,000+ miles on the odometers, and not replacing retirees with new hires. Often funding and personnel strapped departments can forge relationships with other agencies and send officers to joint training, but this still requires taking manpower off the road and/or paying overtime. Unfortunately this can lead to the department being forced to run “training” that only meets the State mandated minimum requirements, otherwise known as “qualification”.
Qualification is not Training…
Qualification is nothing more than being able to demonstrate a particular skill or ability, at a pre determined time and place, and Qualification does not necessarily imply competence.
Training is organized activity aimed at imparting information and/or instructions to improve the recepients performance to help him attain the skill or knowledge necessary to perform a profession or job.
Enter failure to train lawsuits; Over 25 years ago, the courts began telling law enforcement that firearms training had to be more reflective of the conditions that officers would face while working.
Failure to properly train armed officers who are duty bound to insert themselves, on behalf of society into situations; situations where the possibility of using force, including deadly force is omni-present, the same situations that non-sworn citizens are legally required to disengage and retreat from, can and often will result in tragic circumstances.
Any time an individual law enforcement officer, security guard or executive protection agent uses deadly force, a criminal investigation will take place. Even if such force was deemed as justifiable, i.e. reasonable, lawful and necessary, a civil lawsuit will almost be a certainty. Municipalities, Corporations, Agencies and Individuals can and will be held liable in cases where a policy, custom or rule, caused the individual to commit the violation, and/or where the entity has failed to adequately train the individual and this failure leads to a foreseeable unlawful use of force. Training with respect to the use of deadly force falls squarely within the description of an occupational task for which there is a patently obvious need for training.
Providing only basic training to a police officer, and then sending him into a situation that, under no fault of his own he believes he is trained for is metaphorically, in laymen’s terms akin to: After 16 year old Johnny received a diploma for passing basic drivers education, he entered his first Nascar race and not only was killed in a crash, he caused the death of two other innocent drivers…
The following cases support the need for training above and beyond the basics or the academy to adequately prepare an individual for real world deadly force situations.
Case Law;
TUTTLE VS. OKLAHOMA, 728 F. 2d (10th CIR 1984)
The court held that for law enforcement firearms training to be valid, it must incorporate:
- Stress
- Decision making
- Attitude
- Knowledge
- Skill
- Shoot-Don’t-Shoot
- Moving targets
- Officer required to move (shooting on the move)
- Low light or adverse light shooting
- In-service training
- Shotgun training
In Tuttle vs. Oklahoma, the court strongly suggested the need for realistic firearms training
POPOW VS, CITY OF MARGATE, 476 F SUPP. 1237 (D.N.J. 1979)
The court held that the firearms training received was inadequate for the circumstances officers had to operate under. More specifically, the court said that the training needs to include:
- Moving targets
- Low light or adverse light shooting
- Residential areas
- Simulations, including film designed to teach the practical application of deadly force decision making, laws and policies and regulations, as well as training to be given on a continual basis.
CITY OF CANTON OHIO VS. HARRIS, 489 U.S. S. CT.1197 (1989)
The Supreme Court stated that “A Municipality’s inadequate training may give rise to 42 U.S.C., section 1983 liability when it is deliberately indifferent to the rights of the city’s inhabitants and actually causes the plaintiff’s injury.”
The court enumerated as one example of deliberate inadequate training as, “instances in which the need for more different training is obvious and the inadequacy is likely to result in the violation of constitutional rights.”
ZUCHEL VS. CITY AND COUNTY OF DENVER, COLORADO, (997 F. 2d 730 10th Circuit Court)
In this case, a plaintiff’s son had been shot four times at close range by a police officer during a street disturbance, and died. The plaintiff settled claims against the officer before the trial, and the jury considered only federal civil rights claims against the city. The jury awarded $330,000.00 in damages, finding that the department’s training program, which constituted only a movie and a lecture on the use of deadly force, was constitutionally inadequate.
A federal appeals court has upheld this result, finding that the inadequate training provided indicated that the city was “deliberately indifferent” to the need for more training on the use of deadly force. The court found sufficient evidence in the record to show that the officer’s use of deadly force was unjustified. The appeals court also criticized the city’s lack of “Live” drills providing practice on when to shoot or not to shoot, in addition to movies and lectures.
“Viewing the above evidence most favorably to plaintiffs”, the court concluded, “it is clearly sufficient to support the jury’s determination that the Denver police training program in place prior” to the shooting “was inadequate, and that a direct connection existed between the inadequacy and the shooting.”
The court held that Denver PD was “Deliberately Indifferent” to the need for better firearms training of it’s officers. The court stated that the inadequate training led to the fatal shooting.
MCCELLAND VS. FACTEAU, 610 F. 2d 693 (1979)
The court ruled that “Police Chiefs may be held liable if they breach their duty to train subordinates and establish department procedures that will provide protection for constitutional rights”.
LUNDREN VS. MCDANIEL, (814 F. 2d 600 11th Circuit 1987)
The court held that the deputies, who shot and killed a storeowner while responding to what they believed was a burglary in progress, were responsible for their actions. The Sheriff of the County was equally at fault since the training and supervision falls within his realm of responsibility.
BRANDON VS. HOLT, (469 U.S. 105 S Ct. 873, 83 L Ed. 2d 878)
The court held that a “Public Servant” who was acting in his official capacity imposes liability on the entity that he represents.
RYMER VS. DAVIS, (754 F. 2d 198, 6th Circuit 1985)
The court held that a city’s failure to adequately train officers regarding arrest procedures was a proper basis for liability if there is a showing of casual connection between the failure to train and the conduct of the officer.
DODD VS. CITY OF NORWICH, (815 F. 2d 862, 2nd Circuit 1987)
The court held that a city’s policy of having an officer draw and hold on a suspect while handcuffing him was negligent. The court stated that this action invited the suspect to lunge at the weapon and be shot.
MCLEOD VS. CITY OF PHILADELPHIA,
(U.S. District Ct., No. 94-7495, Oct 6, 1995, 39 ATLA L. Rptr. P. 56, March 1996)
This case involved a $2.2 million dollar settlement in a case where an officer allegedly shot a man who was helping a store clerk who had been shot during a robbery.
CAMACHO VS. CITY OF CUDAHY, (VC009187, La. Superior Ct. March 31, 1994)
In this case, the city was held liable for a $4,370,000.00 settlement to the surviving family of a man shot and killed by officers responding to a domestic disturbance call, who thought a stick in the man’s hands was a rifle.
Both MCLEOD and CAMACHO illustrate the need to train officers in Shoot No-Shoot situations.
DAVIS VS. MASON COUNTY,
(WL 31291, 1991, 9th Circuit Court of Appeals 927 F. 2nd 1473 9th Circuit 1991)
In this case, plaintiffs sued the county alleging that sheriff’s deputies used excessive force in four separate incidents and the officers’ actions resulted in part from inadequate training. The department produced evidence that a training program existed, but a jury returned a verdict for the plaintiff’s.
In sustaining the jury verdict of inadequate training against the department, the Federal Appellate Court listed that two training officers quit the department, describing the training program as “joke”, and that the deputies “received no training in the constitutional limits on the use of force.”
Therefore the court concluded: “The training that the deputies received was woefully inadequate, if it can be said to have existed at all, the deprivation of plaintiffs’ Fourth Amendment rights was a direct consequence of the inadequacy of the training the deputies received.”
In Summary
None of the above court decisions recognize passing a qualification as adequate training, or even training at all.
The courts are demanding that officers training include: stress, movement, low-light conditions, decision making, shoot no-shoot training, training in realistic environments and in some cases and a subjective attitude assessment.
It is important to note that the above factors include “under stress”. Nowhere is stress more important than when making a “Decision”. In my opinion, making a “Decision” under stress is just not plausible or possible. A “Decision” to use lethal force is effectively a “Reflexive Action” performed unconsciously in a fraction of a second, and done minus an active thought process. That being said, reflexive actions, or a response to a given stimulus, herein referred to as “Decision Making” is honed only through proper and continuous training.
In my professional opinion training programs that do NOT include Reality / Scenario Based Force-on-Force / Use of Force Training are incomplete.
For many years law enforcement agencies trained officers the “how to” shoot by using marksmanship courses for firearms training. Officers would stand at various distances from paper targets and take aim. As training progressed, agencies began creating combat and stress courses that incorporated officer movement, target movement and limits on the amount of time an officer would have to fire. While these courses are sufficient in training officers how to shoot and therefore demonstrate the fundamentals of marksmanship; they fail in training officers to make shoot / no-shoot decisions in stress induced situations, and they fail to reflect the conditions under which most officers are required to work. Even “combat” training programs do not adequately address these training needs.
The need for training on the “when to” shoot is now an accepted fact among the courts. Unfortunately, many Municipalities, Corporations, Agencies and Individuals, due to a lack of resources, still have not developed training in this area. The failure to have “judgment” or “decisional” training with respect to the use of deadly force is a risk that entities cannot afford to take.
Examples
In Zuchel v. Denver the United States Court of Appeal for the 10th Circuit examined a case which began when members of the Denver Police Department responded to a disturbance call at a fast-food restaurant. Upon arrival, officers were told that the subject responsible for the disturbance had gone around the corner. As officers turned the corner they observed Zuchel, who had his back to the officers, arguing with some teenagers. Someone shouted that Zuchel had a knife. As the officers approached Zuchel turned toward the officers, at which time Officer Spinharney fired four times, killing Zuchel. A pair of fingernail clippers was found next to Zuchel. Officer Spinharney’s partner testified that she was surprised when Officer Spinharney fired because she was right next to Zuchel and about to grab him.
Following a civil trial against the City of Denver, (the case against Officer Spinharney had been settled prior to trial); a jury came back with a verdict against the city for $330,000 based upon a failure to adequately train. The City of Denver appealed. In upholding the verdict, the court cited testimony by a Denver police detective as well as testimony from the plaintiff’s expert on police training. The detective testified that the only “shoot-don’t shoot training” that existed at the time of Zuchel’s death “consisted of a lecture and a movie.” The plaintiff’s police practices expert testified that if the only “shoot-don’t shoot” training officers received was a lecture and a movie, then the training was grossly inadequate.
In reviewing these two decisions, Popow and Zuchel, it is clearly established that annual or semi-annual qualification courses are simply insufficient for purposes of assisting officers in making deadly force decisions. Any entity, i.e. Municipalities, Corporations and/or Agencies who employ persons, who may be forced to use deadly force in defense of themselves or others, must conduct firearms training on a regular basis; the firearms training must reflect the environment that those individuals are likely to face, i.e. moving targets, moving officers, low-light conditions, indoor, outdoor, residential and/or corporate areas if applicable to the entity / individual being trained; and finally entities must conduct decision making training with respect to when to use deadly force. The most effective method to achieve the latter being reality / scenario based force-on-force / use of force training.
In Closing
I always explain to every class what the FBI-UCR, LEO’s Killed in the line duty statistics are and what they represent. In some way they can be viewed as LEO’s who gave their lives in the line of duty who are now speaking to us from the grave, giving us useful information that we need in order to survive a similar lethal force encounter, we just need to listen and adjust not only our training but our mental preparation as well.
In applying the same logic to failure to train lawsuits: a 25-year history of failure to train lawsuits, all with similar charges, with similar outcomes should influence our training programs.
Although the aforementioned is largely based on law enforcement statistics and case history, it is important to note that there are as many armed guards in the U.S as there are police officers. In many states the mandated training is almost non-existent. There are however states that have good training and licensing programs in place, such as TX, VA, FL and my home state of NY, which requires 8+16+47 hours of training to become eligible to work as an armed guard, and then 16 hours of annual training. Compare that to the 1000 hours of required education to become a cosmetologist in NYS and you have to expect that failure to train lawsuits will largely carry over into the private sector.
Donald P. Redl, Jr. – Managing Member Executive Options LLC
Don is a board certified investigator with over 25 years of experience, a member of ASIS and a published author: “Get Off The X” (2017) & “Fighting Handgun” (2019). He has personally led and/or conducted investigative, executive security and/or training operations from coast-to-coast and internationally, and has been deposed and/or testified, including subject matter expert testimony in both Florida and New York State courts.
As an instructor, Don is a member of IALEFI, The International Association of Law Enforcement Firearms Instructors and hold state instructor certifications as a firearms instructor and use-of-force/general topics instructor. He is an active shooter response instructor and scenario based force-on-force instructor. His experience and expertise includes 25+ years of continued study, training and teaching security and armed guard practices, judicious use-of-force, tactical firearms and scenario/reality based force-on-force training. The American Tactical Shooters Association has recognized Don as a Tactician and a past winner of the prestigious National Tactical Invitational.