by Michael Callahan
THE STANDARD FOR MUNICIPAL AND SUPERVISORY LIABILITY
Michael Callahan, J.D.
Special Agent and Principal Legal Advisor
FBI Field Office
This article discusses the potential liability of municipal
corporations and police supervisory officials for the
unconstitutional conduct of lower echelon police personnel. The
article specifically focuses on the extent of liability for
deficiencies in training and supervision. The standard of
liability for municipalities and supervisors and the type and
amount of proof required to meet that standard will be examined.
Also, practical suggestions will be offered to reduce exposure to
this type of liability.
THE GENESIS OF MUNICIPAL CORPORATE LIABILITY
The U.S. Supreme Court, in Monell v. New York City
Department of Social Services (1) ruled that a municipal
corporation may be liable under 42 U.S.C. Sec. 1983 (2)
(hereinafter Section 1983) for adopting and executing a formal
policy that results in a constitutional deprivation. Moreover,
the Court ruled that liability can occur for constitutional
violations caused by municipal ``customs'' or informal policies,
even though they have not been officially approved by city
policymakers. The Court made clear that liability is based
solely on the unconstitutional conduct of municipal policymakers
and rejected the idea that liability could be based on the
theory of respondeat superior, which imposes liability on an
employer for the wrongful action of an employee regardless of
the absence of fault on the part of the employer.
Following Monell, Federal courts faced many Section 1983
suits directed against cities that were based on a claim that
the city had adopted a ``custom'' or policy of inadequate
training or supervision of police officers. During much of this
period, there was considerable judicial disagreement concerning
the standard by which municipalities should be judged in these
suits, (3) as well as the type and amount of evidence needed to
prove an inadequate training or supervision case. (4) The Supreme
Court resolved much of that uncertainty in its 1989 decision in
City of Canton, Ohio v. Harris. (5)
SUPREME COURT ADOPTS DELIBERATE INDIFFERENCE STANDARD
In Canton, the plaintiff was arrested for a traffic
offense, and after refusing to cooperate, was carried to the
patrol wagon because she could not or would not walk on her own.
Upon arrival at the police station, she was discovered on the
wagon's floor and responded incoherently when a shift commander
asked if she needed medical attention. During booking she fell
off a chair several times and was allegedly left on the floor to
prevent further injury. No medical attention was summoned by the
police. After being released, she was transported by private
ambulance to the hospital where she was diagnosed as suffering
severe emotional ailments and was hospitalized for a week. She
sued under Section 1983, alleging that the city deprived her of a
constitutional right to medical care by failing to adequately
train officers at detention facilities in deciding when
prisoners required medical attention.
Trial evidence disclosed that it was city policy to give
shift commanders sole discretion to decide when a prisoner needed
medical care and that these commanders received no special
medical training to assist them in that decision. The jury
returned a $200,000 judgment against the city, and the U.S. Court
of Appeals for the Sixth Circuit affirmed (6) that the proper
standard for municipal liability regarding inadequate training
is gross negligence.
In a landmark decision, the U.S. Supreme Court reversed that
lower court ruling and held that inadequate police training can
serve as the basis for liability only where the failure to train
amounts to deliberate indifference by city policymakers to the
constitutional rights of persons contacted by police officers.
By adopting the higher deliberate indifference standard, the
Court rejected the gross negligence standard that had been
adopted by many lower Federal courts. (7) The Court explained that
inadequate training meets the deliberate indifference standard
only when the need for more or different training is obvious and
the failure to implement such training is likely to result in
The Court offered two examples of what would constitute
deliberate indifference. First, where city policymakers know
that officers are required to arrest fleeing felons and are armed
to accomplish that goal, the need to train officers in the
constitutional limitations regarding the use of deadly force to
apprehend fleeing felons is obvious, and the failure to do so
amounts to deliberate indifference. Second, deliberate
indifference could be based on a pattern of officer misconduct,
which should have been obvious to police officials who fail to
provide the necessary remedial training.
LOWER COURT DECISIONS
Several Federal appellate cases have been decided since
Canton involving claims of inadequate training and supervision.
(8) For example, in Bordanaro v. Mcleod, (9) an off-duty police
officer allegedly had an altercation with patrons at a motel bar
and then notified on-duty officers that he needed assistance.
The entire night shift allegedly responded to the motel,
eventually firing two shots and forcing entry into a motel room
where several occupants were allegedly beaten, resulting in the
death of one of the occupants. A Section 1983 suit filed
against the officers, the city, the police chief, and the mayor
resulted in a jury verdict of approximately $4.3 million.
The U.S. Court of Appeals for the First Circuit affirmed
the finding against the city based on a finding of deliberate
indifference. The court concluded that the injuries were
proximately caused by an unconstitutional ``custom'' of breaking
down doors without warrants based, in part, on the testimony of
a police sergeant that the department had a long-standing
practice of making such entries. Although there was no direct
evidence that the chief or mayor were aware of this practice,
the court observed that the practice was so widespread that they
should have known about it and corrected it. Their failure to
do so amounted to deliberate indifference.
Moreover, the court observed that department rules and
procedures issued in 1951 failed to address current standards of
search and seizure, hot pursuit, and the use of deadly force.
Little or no inservice training was provided regarding the use of
force after basic training, and no training was required for
officers who were promoted to supervisory rank.
With regard to a finding of deliberate indifference in
supervision, the court observed that the department placed many
citizen complaints against officers in a dead file without
investigation and that discipline was often haphazard,
inconsistent, and infrequent. Moreover, discipline for the motel
incident took over a month to occur, and the officers involved
were suspended only after indictment. A full internal inquiry
did not begin until a year after the motel incident. The court
also found that the department's method of background checks on
officer applicants was superficial and that psychological tests
required by local ordinance were often not given to applicants.
In contrast to Bordanaro, the U.S. Court of Appeals for the
Ninth Circuit reached a different result in Merritt v. County of
Los Angeles. (10) The plaintiff was arrested by county officers
after they discovered conflicting vehicle identification numbers
on an exotic car he was driving. He later sued under Section
1983 alleging unlawful arrest and the use of excessive force
caused by the county's unconstitutional failure to train its
officers. The court ruled in favor of the county and rejected
the plaintiff's excessive force and inadequate training claims
because trial evidence disclosed that training regarding use of
force was extensive and included a 2-day seminar for each
prospective recruit on use of force. Since 20 percent of basic
training and 10 percent of inservice training involved the use
of force, the court concluded that there was no deliberate
indifference regarding use-of-force training.
Regarding plaintiff's claim that inadequate training in auto
theft investigations led to his unlawful arrest, the court found
that the training was deficient to the extent that officers were
not told that conflicting identification numbers on the same
vehicle do not always mean that a car is stolen, since there are
some situations where conflicting numbers have a legitimate
explanation. Nonetheless, the court emphasized that the
arresting officers were confronted with a very rare instance in
which the existence of conflicting numbers should not have played
a prominent role in the arrest decision. The court concluded
this failure to train was not obvious and that ``[i]n light of
the rarity of such occurrence, this particular deficiency...is
certainly not one...which a jury could reasonably infer...
amounted to deliberate indifference....'' (11)
PERSONAL LIABILITY FOR POLICE SUPERVISORS
Federal appellate cases hold that police managers are only
personally liable for their unconstitutional action or inaction
and are not vicariously liable for the misconduct of
subordinates, unless their actions as a police supervisor are
the cause of a constitutional injury. (12) These cases reveal that
the standard by which supervisors are judged is deliberate
indifference and that ``...the standard of individual liability
for supervisory public officials will be found no less stringent
than the standard...for the public entities they serve.'' (13)
Several recent cases illustrate the potential civil liability
risks confronting police managers. (14) In Gutierrez-Rodriguez v.
Cartagena, (15) plaintiff and his girlfriend were parked late at
night in a lovers' lane. Four officers, not in uniform and in an
unmarked car, arrived under the command of a supervisor, who
allegedly ordered them to approach plaintiff's car with guns
drawn. When the plaintiff attempted to drive away, the four
officers allegedly fired at the car without identifying
themselves and without warning. One shot severed plaintiff's
spine, causing him to become a paraplegic. Plaintiff sued the
officers and various police officials under Section 1983,
alleging that their supervisory actions and omissions
contributed to his injury. The jury returned a joint
compensatory judgment against all defendants in the amount of
$4.5 million and punitive damages against the supervisory
officials. The U.S. Court of Appeals for the First Circuit
affirmed the lower court holding and ruled that the proper
standard to judge supervisory liability is deliberate
The court noted that the supervisory liability for the
unconstitutional failure to supervise was based on knowledge that
the officer involved was the subject of 10 recent abusive conduct
citizen complaints, including the complaint that the officer held
a gun to a person's head while other officers beat him, for which
the officer only received a 5-day suspension. The court found
that despite these complaints, supervisors continued to permit
the officer to lead men on the street and to give him good
performance ratings. The court also found evidence of deliberate
indifference in the fact that supervisors refused to consider
past complaints in evaluating each new one against this officer,
and they used a disciplinary system that permitted officers under
internal inquiry to refuse to talk without fear of administrative
penalty. Moreover, witnesses to an alleged incident of police
abuse were intimidated by a requirement that they appear at the
station to give a signed sworn statement, and if a complaint were
withdrawn, the internal inquiry was terminated with no input
from the officer's immediate supervisor as to whether
disciplinary action was appropriate.
In another case, Dobos v. Driscoll, (16) the plaintiff alleged
that he was driving with his family when another automobile
repeatedly struck the side of his car. The plaintiff forced the
other driver to the curb, and shortly thereafter, a State trooper
arrived and verbally berated the plaintiff in front of his
family. When the plaintiff objected, he was arrested, handcuffed
tightly, and driven away by the trooper without explanation to
his family. When the plaintiff's wife arrived at the lock-up and
noticed her husband shaking and that his hands were red and
swollen, she asked for medical help and was allegedly told that
if she continued to insist on medical help, her husband would be
removed to a mental hospital in a straight jacket. The plaintiff
alleged that the trooper used profanity in further berating him
and tore up his bail information papers. The plaintiff sued the
officer and all his supervisors under Section 1983 alleging a
failure to supervise. The jury returned a $400,000 verdict
against the defendants, and the Massachusetts Supreme Judicial
The court noted that a police supervisor is not liable
simply because a subordinate employee who works for him violates
someone's rights. Instead, supervisors are only liable where
they personally cause constitutional injury by being deliberately
or consciously indifferent to the rights of others in failing to
properly supervise a subordinate employee. The court found
evidence of deliberate indifference in the fact the trooper's
supervisors had not reviewed his disciplinary history prior to
reinstating him to road duty; the trooper's personnel file
disclosed many instances of previous disciplinary problems,
including a written recommendation from a former supervisor that
he be assigned to permanent desk duty and no longer be permitted
on the road. The file also reflected that he physically abused a
girlfriend, drove recklessly, and threatened to hit a stranded
motorist with a kel-light. The court observed that the trooper's
supervisors were aware that he had a poor disciplinary record,
and nonetheless, failed to review his personnel file before
agreeing to return him to road duty. The court explained that
they knew, or should have known, that his disciplinary record
would be relevant in determining his fitness to contact members
of the public during road duty, and the failure to examine that
record amounted to deliberate indifference.
In another case, Davis v. City of Ellensburg, (17) the
court ruled that a police supervisor did not act with deliberate
indifference. After being detained by three officers, a suspect
began to retch and drool. The officers called for an ambulance
and a paramedic removed a marijuana-filled baggie from the
suspect's throat with forceps. He later died from brain damage.
A suit followed under Section 1983, alleging that the police chief
failed to properly supervise the arresting officers.
The U.S. Court of Appeals for the Ninth Circuit observed
that the chief was aware that one officer had a drinking problem
and had beaten his wife and that the other officer suffered
anxiety problems after being shot at and finding a suicide
victim. In response, the chief ordered both to seek professional
help. A psychologist found both men fit for duty, but
recommended that one be retained only if he could remain
alcohol-free. The chief monitored that officer's sobriety by
regularly checking with two other officers. The court ruled that
the chief's response to the problems of the officers was an
appropriate exercise of supervisory responsibility and that there
was no deliberate indifference.
SUGGESTIONS TO MINIMIZE LIABILITY
Police departments should carefully review training
practices related to high-risk activities, such as the use of
deadly and non-lethal force, warrantless arrests and searches,
vehicle pursuit, and prisoner safety in detention facilities.
Training policies should be reviewed to ensure conformance with
current constitutional standards. No training practice should
fall below minimum State standards. If a pattern of abuses by
officers begins to develop, training in that area should be
enhanced. All officers should be required to attend regular
inservice training in these high-risk areas.
Supervisory policies relating to citizen complaints and
departmental disciplinary actions should be periodically
reviewed. Specific procedures for investigating citizen
complaints should be established and carefully followed.
Investigations should be initiated promptly upon receipt of a
complaint, and the results of that investigation and any
recommended disciplinary action should be in writing and
retained in an appropriate file. Final disciplinary decisions
should be in writing and fully documented. No disciplinary
decision should be made in a vacuum and prior discipline should
be considered. Disciplinary decisions should be consistent and
commensurate with the degree of abusive conduct. The failure to
discipline or dismiss officers who develop a track record of
unconstitutional conduct may result in supervisory and municipal
liability. Complete insulation from liability is impossible,
but these prophylactic management initiatives will help reduce
the risk significantly.
(1) 436 U.S. 658 (1978).
(2) 42 U.S.C. 1983 provides: ``Every person who under
color of any statute, ordinance, regulation, custom or usage, of
any state...subjects...any...person...to the deprivation of any
rights...secured by the Constitution...shall be liable to the
party injured in an action at law....''
(3) Some Federal appellate courts adhered to a deliberate
indifference standard, e.g., Fiacco v. City of Rensselear, 783
F.2d 319 (2d Cir. 1986); Wellington v. Daniels, 717 F.2d 932
(4th Cir. 1983). Others adopted a less-stringent standard of
gross negligence, e.g., Wierstak v. Heffernan, 789 F.2d 968 (1st
Cir. 1986); Bergquist v. County of Cochise, 806 F.2d 1364 (9th
(4) Compare Sarus v. Rotundo, 831 F.2d 397 (2d Cir. 1987);
Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983) and Herrera
v. Valentine, 653 F.2d 1220 (8th Cir. 1981), which require proof
of a pattern of similar misconduct, with Voutor v. Vitale, 761
F.2d 812 (1st Cir. 1985) and Kibbe v. City of Springfield, 777
F.2d 801 (1st Cir. 1985), cert. dismissed, 107 S.Ct. 1114 (1987)
(no pattern required).
(5) 109 S.Ct. 1197 (1989).
(6) Harris v. Cmich, 798 F.2d 1414 (6th Cir. 1986) (unpublished
(7) The adoption of the deliberate indifference standard makes
it more difficult for plaintiffs to win 1983 actions because it
eliminates jury consideration of differences in training programs
unless plaintiff can prove that the need for more or better
training was obviously needed.
(8) Inadequate training cases include Santiago v. Fenton, 891
F.2d 373 (1st Cir. 1989); Williams v. Borough of Westchester,
Pennsylvania, 891 F.2d 458 (3d Cir. 1989); Clipper v. Takoma
Park, Maryland, 876 F.2d 17 (4th Cir. 1989); Bennett v. City of
Grand Prarie, Texas, 883 F.2d 400 (5th Cir. 1989); Hill v.
McIntyre, 884 F.2d 271 (6th Cir. 1989); Merritt v. County of Los
Angeles, 875 F.2d 765 (9th Cir. 1989); Dorman v. District of
Columbia, 888 F.2d 159 (D.C. Cir. 1989); Graham v. Davis, 880
F.2d 1414 (D.C. Cir. 1989). Inadequate supervision cases
include Powell v. Gardner, 891 F.2d 1039 (2d Cir. 1989); Leach v.
Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989); Davis v.
City of Ellensburg, 869 F.2d 1230 (9th Cir. 1989).
(9) 871 F.2d 1151 (1st Cir. 1989), cert. denied, 110 S.Ct.
(10) 875 F.2d 765 (9th Cir. 1989).
(11) Id. at 771.
(12) Al-Jundi v. Estate of Rockerfeller, 885 F.2d 1060 (2d
Cir. 1989); Revene v. Charles County Commissioners, 882 F.2d
870 (4th Cir. 1989); Reid v. Kayye, 885 F.2d 129 (4th Cir.
1989); Hansen v. Black, 885 F.2d 642 (9th Cir. 1989); Taylor v.
List, 880 F.2d 1040 (9th Cir. 1989).
(13) Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989). See
also, Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988);
Bolin v. Black, 875 F.2d 1343 (8th Cir. 1989), cert. denied,
110 S.Ct. 543; Howard v. Adkinson, 887 F.2d 134 (8th Cir.
1989); Pool v. Missouri Department of Corrections, 883 F.2d 640
(8th Cir. 1989); Redman v. County of San Diego, 896 F.2d 362
(9th Cir. 1990).
(14) A discussion of the qualified immunity defense is
beyond the scope of this article. For a discussion of the
significant protection from personal liability offered by that
defense, see Schofield, ``Personal Liability--The Qualified
Immunity Defense,'' FBI Law Enforcement Bulletin, March 1990.
(15) 882 F.2d 553 (1st Cir. 1989).
(16) 537 N.E.2d 558 (1989), cert. denied, 110 S.Ct. 149.
(17) 869 F.2d 1230 (9th Cir. 1989).
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.