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Back to Archives | Back to October 2008 Contents 

Chief's Counsel

Chief's Counsel: DNA Exoneration Cases May Breed “Failure to Train” Claims

John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts

chief is likely to be added as a party to any civil rights lawsuit that results from alleged wrongdoing by that chief’s police officers, regardless of whether the chief had any direct involvement in the officers’ conduct. One of the most common claims is that the chief was negligent in training the officers and that this failure resulted in the violation of a citizen’s civil rights. While there may be very little a chief can do to avoid being sued, there are several things that may help avoid losing any such court action. As with much in the area of police work, documentation is critical. The expression that goes, “If it is not in the report, it did not happen,” often heard in the law enforcement profession, will be paraphrased by plaintiffs’ lawyers to say, “If you can’t prove the officers were trained, they probably weren’t.”

With the recent trend toward using DNA analysis to revisit old cases, chiefs are becoming painfully aware of the need to document all the training their officers receive. The Web site of the Innocence Project (IP) reports that as of August 2008, there have been 218 postconviction exonerations due to DNA analysis in U.S. history.1 The IP claims that common themes run through these cases—from what the IP refers to as global problems like poverty and racial/ethnic tension to criminal justice issues such as eyewitness misidentification, corrupt scientists, overzealous police and prosecutors, and inept defense counsel. The project says these themes continue to plague our criminal justice system and therefore cannot be ignored. They point out the following statistics:

  • Sixteen people had been sentenced to death before DNA proved their innocence and led to their release.
  • The average sentence served by DNA exonerees has been 12 years.

  • About 70 percent of those exonerated by DNA testing are members of minority groups.

  • In over 35 percent of the cases profiled on the IP Web site, the actual perpetrator has been identified by DNA testing.

  • Exonerations have been won in 32 states as well as the District of Columbia.

Many convictions have been reversed over the past few years based on improved DNA testing procedures. Some cases originated a quarter century ago, well before modern DNA procedures were available. Chiefs who have long since retired, as well as officers that have retired or moved on in their careers and are nearing retirement age, are facing court claims that their investigations were flawed and that the errors were the result of inadequate training. This should be a wake-up call to all law enforcement officers and chiefs. As the saying goes, those who do not pay attention to history are doomed to repeat it.

Negligent Training

In City of Canton v. Harris, the U.S. Supreme Court held that to establish municipal liability, evidence must exist that illustrates that “the need for more or different training is so obvious . . . that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”2 The Court suggested that simply demonstrating that an injury could have been avoided if more training had existed was not enough to attach municipality liability. Moreover, “City of Canton requires not only deliberate indifference but that the alleged failure to train be shown to have been the ‘closely related’ cause of the constitutional injury.”3 The Harris Court explained that the alleged training deficiency must essentially be the moving force behind the injury.

Liability attaches to municipalities when a pattern of constitutional violations results from inadequate training.4 The U.S. Supreme Court has developed a stringent set of guidelines for determining municipality liability in failure-to-train cases. Following Monroe v. Pape, the Supreme Court implemented a new policy creating liability for municipalities for the actions of their employees.5 The Court adhered to a narrow scheme by which liability attaches only when a person’s federal rights are violated by a policy or custom acted out by a municipal official or employee. Although the Court broadly interpreted the definition of an official policy that may open the door to municipal liability, the new rules remain restrictive because of hurdles in determining which municipal officials are capable of creating policies under 42 U.S.C. 1983.

A municipality cannot be held liable in a failure-to-train claim if a comprehensive training program is present and followed.6 To prove municipality liability, evidence must demonstrate that either an unconstitutional training policy existed or a constitutionally valid training policy existed but was not enforced.7 Some courts have ruled that inadequate training may be sufficient to prove causation.8 Other courts have determined that when the proper response to a situation is obvious to all without training, a failure-to-train claim is deficient.9

With all the publicity surrounding DNArelated exonerations, plaintiffs will claim that chiefs have been put on notice that training in such subjects as eyewitness identification, preliminary investigations, and crime scene preservation is necessary to avoid violating citizens’ rights.

Deliberate Indifference

Chiefs or other supervisors may be found liable in Section 1983 claims only on the basis of their own acts or omissions.10 Moreover, supervisors cannot be held liable for merely negligent acts. Many chiefs have been surprised to learn that they were being sued for constitutional violations committed by their officers when they themselves were not involved directly—in fact, not even on duty! However, in cases where a chief was aware that failing to train officers in a given subject area would very likely lead to civil rights violations, liability has been found under Section 1983.

Moving Force Requirement

For supervisory officials to be held liable, there must also be an “affirmative link” between their acts or omissions and their subordinates’ violation of plaintiffs’ constitutional rights.11 The Supreme Court, in City of Canton v. Harris, explained that simply determining that more training is needed to prevent an injury is insufficient to establish liability.12 Additionally, the Court held that neither inadequate training provided to a particular officer nor negligent administration of an otherwise sound program will prove municipality liability.13 The Court reasoned that these high standards for liability were necessary to avoid “unprecedented liability.” In Harris, the Court reaffirmed that liability attaches only when the inadequate policy is in fact the moving force behind the civil rights violation. This was in line with its ruling in Monell v. Dep’t of Soc. Services that held that local government liability attaches if official policy is the moving force behind the constitutional violation. 14 Obviously, as the 1989 First Circuit Court case of Bordanaro v. McLeod explained, no liability attaches to a city or a town whose employees generally adhere to facially valid policy.15 In this case, the Everett, Massachusetts, Police Department was held to have an inadequate training program, and therefore the City of Everett was liable to its citizens.

By contrast, in Chaabouni v. City of Boston, the U.S. District Court for Massachusetts ruled, “The Supreme Court requires that lack of training must be the ‘moving force behind the injury.’ The United States Supreme Court did not intend to extend municipality liability to cities or towns for a mistake made by an adequately trained officer.”16

Inadequate training results in liability only when the police deliberately disregard citizen rights.17 Plaintiffs have a duty to plead their case properly. Otherwise, the case may be dismissed for failure to properly state a claim.18 Following the wrong course of action in limited situations has even been held insufficient for liability to attach to a city.19 The Second Circuit Court, in a case involving the New York City Police Department, held that “[w]here the proper response . . . is obvious to all without training . . . then the failure to train . . . is generally not ‘so likely’ to produce a wrong decision as to support an inference of deliberate indifference.”20

When it comes to exonerations related to DNA analysis or similar evidence, plaintiffs will not have an easy time showing that the negligence of the police was the “moving force.” Often, persons that are wrongly convicted have had less than stellar representation. Similarly, the roles of the prosecution and the judiciary may come into play in such cases. The threshold of “deliberate indifference” is very high. A chief cannot be expected to ensure that training is provided in every conceivable area of potential harm to citizens. On the other hand, now that the most common areas of deficiency are so widely publicized, failing to make any effort to address them may help establish such indifference. Documentation is essential. Showing that an agency has up-to-date policies and trains all its officers in conformity with applicable laws will help avoid liability for negligent training. Even if the actual training is delayed due to budget shortages, chiefs should still document any proposals made, such as line items in a budget that were deleted or reduced by their municipalities.

Required Training?

Chiefs may be found liable under Section 1983 if they fail to have officers trained in areas that the chiefs knew or should have known would likely result in violations of citizens’ civil rights. Some areas are obvious, such as use of force, search and seizure, arrests, and interrogations. Others should become apparent based on an agency’s experience. A one-time violation is usually not enough; generally, to establish liability, a failure to train officers to handle a recurring situation must be shown.21 Constructive notice of constitutional violations satisfies the deliberate indifference requirement.22 For example, if a series of citizen complaints alleges that an agency is making racially biased vehicle stops with no reasonable suspicion, the agency’s chief would be put on constructive notice that unless officers were made aware of the law in this regard, continual civil rights violations could be anticipated. A combination of policy announcement, discipline, and training might be required, depending on the seriousness of the violations.

At a minimum, of course, chiefs should ensure that officers receive at least the statutory minimum level of training. As a rule of thumb, most agencies attempt to send officers to four or five days of in-service training each year. Some courts and juries may not be inclined to recognize a distinction between training resulting from a statutory mandate and that regarded as simply a well-accepted custom. Chiefs should be prepared to document alternative training if they do not arrange for their officers to complete the statutorily required in-service training, either online or in a classroom.

In addition to any legally mandated training, chiefs must make an effort to secure training for officers in areas that the chiefs know or should know will result in civil rights violations without such training. Continued adherence to an approach that the municipality knows or should know has failed to prevent tortuous conduct by employees may establish the conscious disregard for the consequences of their actions—deliberate indifference—necessary to trigger municipality liability.23


Chiefs should take the following steps to help reduce exposure to “negligent training” claims:

  • Ensure that all officers receive at least that amount of training required by law

  • Note any training deficiencies that appear to result in
    • erroneous enforcement efforts (typically arrests, eyewitness identifications, and searches and seizures);
    • wrongful convictions;
    • violations of citizens’ rights;
    • harm to citizens or officers; and
    • complaints, even where an internal investigation has “cleared” the officers involved
  • Try to secure training to address any deficiencies

  • Document all of these actions

When it comes to claims that have prompted many of the IP exonerations, it is clear that misidentifications are at the heart of the problem. This should put chiefs on notice that officers need training in the area of eyewitness identification. An effort must be made to ensure that the topic is covered in the academy. In addition, even though this subject may have been addressed in previous in-service training classes, chiefs should be prepared to document which officers actually attended and make arrangements for those who did not or who have been appointed since that time. Certainly, ensuring that the department has an up-to-date policy and procedure on eyewitness identification should be part of any chief’s checklist of required actions in this area.

Clearly, officers need not be trained as DNA experts. However, chiefs should ensure that appropriate training is provided in basic crime scene procedures and that their agencies have suitable policies addressing how officers should conduct preliminary investigations. For persons assigned as detectives, additional training in the collection and preservation of evidence should be arranged. Similarly, sexual assault investigators, for example, should complete a specialized training course before assuming such duties.

The bottom line is this: even if agencies have not had a claim of wrongful conviction based on misidentification filed against them, chiefs should consider themselves “on notice” that this is an area of potential liability. With all the publicity associated with the exonerations noted by the IP and others, often based on improved DNA analysis, chiefs must review their agencies’ training and policies to help reduce the likelihood that the wrong persons are arrested and prosecuted. ■


1Innocence Project, “Victim’s Family Joins Federal Lawsuit for DNA Testing That Could Overturn a Wrongful Conviction and Solve a Cold Case,” press release, August 6, 2008, (accessed September 6, 2008).
2City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989).
3Hayden v. Grayson, 134 F.3d 449, 457 n. 14 (1st Cir. 1998).
4Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998).
5Monroe v. Pape, 365 U.S. 167 (1961).
6See Bordanaro v. McLeod, 871 F.2d 1151, 1162 (1st Cir. 1989) (stating no liability attaches to a city that generally adheres to facially valid policy). The Everett, Massachusetts, Police Department had an inadequate training program, and therefore the City of Everett was liable to its citizens. Id.
7Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001) (alleging that insufficiency of purported evidence enabled municipality liability); Evan Sanford Schwartz, “A Plea for Help: Pleading Problems in Section 1983 Municipal Liability Claims,” Comment, Touro Law Review 6 (1990): 391 (suggesting that inadequate training results in liability only when police deliberately disregard citizen rights).
8See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 407 (1997).
9Walker v. City of New York, 974 F.2d 293, 299–300 (2d Cir. 1992) (recognizing that a wrong course of action in limited situations is not enough for liability to attach to a city). See also Carr v. Castle, 337 F.3d 1221, 1224 (10th Cir. 2003) (holding that obvious response prevents municipality liability from attaching to a city).
10Bowen v. City of Manchester, 966 F.2d 13, 20 (1st Cir. 1992); Gutiérrez-Rodríguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989), citing Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir. 1989).
11Gutiérrez-Rodríguez, 882 F.2d at 562; Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir. 1988).
12Harris, 489 U.S. at 391.
13Id. at 390–91.
14Monell v. Dep’t of Soc. Services, 436 U.S. 658, 694 (1978). See also Brown v. Gray, 227 F.3d 1278, 1290 (10th Cir. 2000) (explaining that government policy must inflict injury for liability to attach).
15See Bordanaro, 871 F.2d at 1162.
16Chaabouni v. City of Boston, 133 F. Supp. 2d 93 (D. Mass. 2001).
17See Schwartz, “A Plea for Help,” 391.
18Brown, 269 F.3d at 216.
19Walker, 974 F.2d at 299–300.
21Allen v. Muskogee, 119 F.3d 837, 841 (10th Cir. 1997). See generally Heidi Boghosian, “Applying Restraints to Private Police,” Missouri Law Review 70 (2005): 177 (reasserting that deliberate indifference attaches liability by failure to train employees in recurring situations).
22See Harris, 489 U.S. at 388–89.



From The Police Chief, vol. LXXV, no. 10, October 2008. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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