Legal Corner: Inadequate Training – On-Duty & Off-Duty Scenarios

By Mark T. Baganz, Esq.

Inadequate training in deadly force lays the groundwork for costly litigation. Most officers are familiar with some of the cases involving an officer’s use of deadly force.1 However, there appears to be a trend concerning off-duty verses on-duty use of deadly force and training in those concepts. In Brown v. Gray2 the 10th Circuit Court of Appeals reviewed a case wherein a person had been shot by an off-duty officer. This case involved deadly force and a claim of inadequate training of officers concerning certain department rules and the taking of on-duty versus off-duty police action. The reported facts are as follows:

On the afternoon of December 13, 1994, Clinton Brown was running errands in his neighborhood. As he drove down the street, he became involved in a traffic dispute with another driver, Edmund Gray, who was a police officer for the City and County of Denver. Officer Gray was not on regular shift, was driving his own car, and was not in uniform. According to Mr. Brown, the two men exchanged insulting hand gestures and thereafter Mr. Brown noticed officer Gray following and tailgating him for several blocks. The two cars stopped at a traffic light. Officer Gray got out of his car, walked up to Mr. Brown’s car, and drew his service revolver out of his jacket. Officer Gray pointed the gun at Mr. Brown’s face and shouted that he was a police officer, but did not display identification. The light turned green and Mr. Brown made a U-turn. Officer Gray returned to his car and followed. Mr. Brown stopped on the shoulder of the road in order to get officer Gray’s license plate number. Officer Gray pulled up close to him, got out of his car, and again approached Mr. Brown with his gun drawn, shouting. Mr. Brown put his hands up and said, ‘What the hell do you want? I don’t have a damn thing.’ …. Officer Gray again pointed his gun at Mr. Brown’s face, at which time Mr. Brown put the car in gear and started to drive away. Officer Gray fired several shots into the car, hitting Mr. Brown approximately three times. Badly injured, Mr. Brown drove a few blocks away, summoned help, and was taken to the hospital.

The shooting caused Mr. Brown a collapsed lung, shattered ribs and extensive nerve and muscle damage in his neck, chest and arm. He required months of physical therapy and additional surgery to remove bullet fragments from his neck and he experienced depression and post-traumatic stress disorder. He still suffers from constant pain and decreased mobility, and one of the bullets remains lodged in his shoulder.

Officer Gray’s version of the events is quite different. He claims that, after the traffic dispute, Mr. Brown brandished a weapon at him, committing the crime of felony menacing. He therefore attempted to arrest Mr. Brown pursuant to Denver Police Department policy. Officer Gray contends the second time he approached Mr. Brown’s vehicle he ordered Mr. Brown to keep his hands visible. Instead of obeying this order Mr. Brown reached down to his right, brought his hand up and began driving away. Officer Gray claims he fired because he feared Mr. Brown was both reaching for a weapon and attempting to flee. Mr. Brown filed suit against both officer Gray and the City and County of Denver. Prior to trial, officer Gray settled with Mr. Brown and stipulated to entry of judgment against him in the amount of $150,000 and then assigned to Mr. Brown his right to indemnification from Denver. Denver went to jury trial on the failure to train issue. The jury ruled in favor of Mr. Brown and therefore the trial court entered judgment for Mr. Brown and against Denver in the amount of $400,000 as found by the jury. Denver appealed the trial court’s denial of its motion for judgment as a matter of law. The 10th Circuit Court of Appeals affirmed the jury’s verdict and award and also affirmed the trial court’s denial of Denver’s motion for judgment as a matter of law.

In affirming the jury verdict, the Appeals Court reviewed the record and concluded that the evidence was sufficient to support the jury’s verdict that Denver was liable and that it was “deliberately indifferent” in its training program. It specifically noted the following issues and evidence:

Mr. Brown’s claim against Denver was based upon a failure to train theory. Brown claimed that Denver had inadequately trained its officers, including officer Gray, with respect to implementing two specific policies. The essence of one policy was that Denver officers were always “on-duty” even if technically “off-duty.” The other policy required officers to be armed at all times.

“Mr. Brown maintained that police officers were not instructed how to take ‘police action’ when they were off-shift and without their uniforms, police vehicles, radios, and other accouterments of law enforcement. He contended that despite the different circumstances presented when an officer is off-shift, the officer training program purposefully did not distinguish between on-shift and off-shift scenarios. Officers were instead told to respond as though they were on-shift in all situations. Consequently, officer Gray believed he was required to take police action after he thought he saw Mr. Brown brandish a gun.”

“However, he could not properly pull Mr. Brown over because he was not in his patrol car, failed to adequately identify himself as a police officer because he was not in uniform, and inappropriately escalated the violence level of the encounter because he was unable to call for back-up.”

Parts of Officer Gray’s deposition testimony was read to the jury at the trial in which he testified he “felt ill-equipped to handle the encounter with Mr. Brown because he lacked his uniform, patrol car, and radio. Officer Gray clearly and repeatedly testified he had never received training in how to handle this type of situation when he was off-shift.”

His actual deposition testimony included the following: “Now if they had issued a radio to carry all the time, I would have effectuated an arrest immediately. I would have called for backup…. I was never trained off duty as to what to do in a situation like that…. I was trained in an on-duty capacity, sir, to call for backup, take the suspect out at gunpoint. I was not trained in an off-duty capacity to handle this situation…. It’s a different situation than if I were in a uniform where [Mr. Brown] could see the marked patrol car…. I would have the opportunity to call for back-up…. I’m trained in an on-duty capacity,…I never have been trained in an off-duty capacity…. I was told that you are on duty 24 hours a day.”

The Circuit Court of Appeals noted that: “Officer Gray also testified he was instructed simply identifying himself verbally as a police officer while off-shift should be sufficient to require a citizen to accede to his demands. …”
“This evidence, along with the shooting itself, provided a sufficient basis for the jury to determine that Denver’s training program with respect to implementing the always armed/always on duty policy in off-shift scenarios was inadequate.” The Appeals Court also reviewed the evidence given by the Denver police department captain who was the academy commander and who had been a police officer for 29 years. The Appeals Court noted as follows:

The former director of the Denver training academy testified that the “officer training program makes no distinction between off-duty and on-duty scenarios because they are considered to be the same.” He also acknowledged that “a conscious decision was made not to distinguish between off-shift and on-shift scenarios in the training program because it was believed they were all the same, despite the fact that off-shift officers would be without their radios, uniforms and marked police cruisers. …He also stressed that no distinction was made between on- and off-shift incidents due to the important nature of the job and the significant role police officers play in the community. …” He “candidly acknowledged that the always armed/always on duty policy was risky for officers…but insisted that no further training was necessary for its implementation.”
The Appeals Court also reviewed the evidence given by the Plaintiff’s expert witness who had been qualified as an expert “with extensive background in police policies, procedures, and training practices…” The Appeals Court noted as follows:

Plaintiff Brown’s expert “testified about the risks to citizens and officers of requiring officers to take police action while off-duty. …If a police department is to adopt an always armed/always on duty policy, he stated, it is imperative that officers be trained on how to take police action in the different circumstances presented when they are off-shift.” Plaintiff’s expert further testified that: “It’s very important that officers be given considerable training as to how they will perform differently when off duty, and especially if a firearm is involved.” He further testified that this “deficiency in the training was a pervasive problem…creating a dangerous situation in which a shooting was the foreseeable result.”

He concluded that Denver’s “failure to provide any training in this area was inappropriate, inadequate, and insufficient. He also testified that, in his opinion, Denver’s failure to provide training that distinguished between on- and off-shift situations constituted deliberate indifference.”

This case stands as precedent for future litigation concerning training programs which fail to differentiate between on-duty and off-duty scenarios and training. Perhaps this trend will catch on faster than one would expect. For example, the 1st Circuit Court of Appeals has recently ruled on an off-duty/on-duty failure to train case. That case involved the mistaken shooting of an off-duty officer by two on-duty, uniformed officers. In a bifurcated trial, the jury found that one of the officers did, and one did not, use excessive force. The trial court dismissed the failure to train lawsuit against the department. The appeals court reversed, concluding that genuine issues of fact required a jury trial concerning failure to train on-duty versus off-duty.

In light of the Court’s ruling, perhaps it would be prudent to evaluate: What are your department’s policies about officers taking police action while off-duty? What would the effect be of any extra-jurisdictional arrest authority in your jurisdiction and outside your jurisdiction? What are your department’s policies about officers being armed while off-duty? What are your department’s policies about officers carrying their badges and ID’s while off-duty? What steps has your department taken to train officers with respect to properly identifying themselves as officers when off-duty?

As a final observation, it certainly appears that this decision has created some additional exposure to law enforcement concerning training issues and may well be the embryonic seed of more litigation over the use of deadly and non-deadly force. Unfortunately, these issues will not resolve themselves. Officers should consult their legal advisors for guidance concerning these issues.

1 See for example, Tennessee v. Garner 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985); Zuchel v. City and County of Denver 997 F. 2d 730 (10th Cir, 1993); Estate of Starks v. Enyart 5 F. 3d 230 (7th Cir, 1993); Mercado v. City of Orlando 407 F. 3d 1152 (11th Cir, 2005); Zuchel v. Spinharney 890 F. 2d 273 (10th Cir, 1989); Popow v. City of Margate 476 F. Supp. 1237 (D NJ 1979); Sager v. City of Woodland Park 543 F. Supp. 282 (D Colo. 1982).
Brown v. Gray 227 F. 3d 1278 (10th Cir, 2000).
Young v. City of Providence 404 F. 3d 4 (1st Cir. 2005)

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