I)

W "WWW”WWW‘W” ”WWW" WWW» I'M MN I: W“: 3mm“.
' V "‘I'I' 'I VIV V ‘ I I I. WI: Hy, ‘1}ij IVV'M ' 'x
M’” ”2'” ' “115}. “'1' "1 “‘VIV ”: " "HE-:1 "' MIME} “'1‘ V. VVVI .iIm‘ha

IIII IV'IIW ' "2 .

 

"

 

     

I..' I" '- H
ILIII II "Ff; . "V HIV» If! VV'E'U'VV r: I aim

I. 'V'S'VV'V'V'IL Iv} I'IH'L‘VV 'V. “3.1? 1“ 'V" 11:} Whit)?” MU

       
  

  
   
   
     
  
    

    
  
    
 
       

   

 
     
 

    
   
 

     
   
  
       
  
     

  
   
    

  
 
 
  
 

  
 

           
   
       

   

 
 

  

    

   

" w I I: I V
IVT'I'V'VI’ "V55. IL’L'J'I“! ‘ 'VL} . l-LI5;IL.'V V ‘ I“. ‘4-
IIII I “III“ E‘I‘III‘I 17W: VI} I‘M} In»; IV "I "W I! ’55:; II n V} Iii. 1' "II‘IIIII I: II II. If MI I,
I I t 1‘ VEV' V' ' :':V' ' M; {:VV" V“ " ItiV 'V' 3'}er '1 VIIV7 2 ‘ , "if! 2' LPN"? ‘ V'} I IV'IIK'VL'VL 33;; :ILH '“H }:h {61.
_e } V2??? LV'l' }"}"' II'I'CE "VSVVJV ‘1‘: figs} 1' quII VVVV ”1‘11ng . Ila?" I." Iii; “Egg“; IE?“ [V'VVVL‘V Silt}; SVOIV' ‘1'rfiy', 1:25}! t'Vf’ VVELV}h I?!
It ’ II I '; I V'L, :'._'.o‘lI.' .'»." I . ‘5‘: ' r \-. 5 I ,
IVZIIIIIJI v -: :35 “.31 ‘I "if? ”‘1"? : I {W W} I raw) W I ..
VVILVV‘IHI V}.V ‘LEEI'; Ii‘géingIE‘V‘iIVVRVVII (VVz'LVVUV’ }' : ‘15] 'zfl '1 . LgtVI'} HIE? IVILI. LIV}; V'ME'V'V' ”My I19 "'Vfi ~{*V“[=Iq “Kt,“
(1%ng ,nl } M} In"; VLV I’LVI1:‘:V.},:E:IIIII ‘vn‘uIIII V) V" VIIIIth; Viz} V‘ 'V:"' ISI'} -; ,{VE'I- 85'3" "V' ‘15??? .211?“qu ”1"! Vi: gaglz.‘ Jays“ HI 3‘31 21:5 5‘! ‘2
‘V l 4}}? 3"?“1'91V5‘LVV'91' V'} 2:: E21}: 'V‘L REVVLIV H} ‘1‘}'VV'qu‘zi'fifi‘5vaih'V Vt kit. w! f4: . ‘1’: t“: LFEI H£l£.i’ 5’ VJVV‘ “:1: {V1 g" it]??? ”:5{;} «131‘1 {$1
IIV 'L‘iliii" “5 "VV:).-i1i}(‘:fiy'} .. V. :':VI:V' .| égV'V {'33.}? )V" is.” (‘V 'Il'in‘fill _* I" III ‘5 $5' 45*: “2', #5 w E‘: “SE: “5‘”. “1:“m'fir!
"’3’"?1.'.'IV."1:?HH'IMV'IVI’V’I‘Vl'll "- II'fi‘ '3‘} ’“I I 4311‘} iffi'EH-“I :3" :3. 5:1: I" '3’ V
:E’Itii‘III:I3III VVVEIVrIifiI‘NLIE'I'VIV' IS} 5,303; IVI‘EIII Hi} fig ‘5” 1w“ “Nb-I *= "I“ IIIgsVVI'flfi‘IItiQVIM '1‘ ' V} '
II :5: \ . v I 4; ‘ ‘ I I‘ . . . ‘I‘VIVA‘ ‘ I") I if} 5L1; L '53,: . 5 In I‘Ltf‘ -J A 1: ' V456 .- h‘sl‘; '1’ .v ‘
I. I V t N“ I! i. Iii“ ILhI 'Vti A“! l ; .‘V'V (Egg; 1 '5'. 'I‘V‘J‘VL'V' in V. ‘6. ‘ 4:2; I .. x; :1“; 3 . .
fiwm I} VEMgfl-ngfifimfiywwfififig gswfiw I
I I’m“: '3; :72! 2193-.3IIIIIIII III}; - in} :IIII.I;;:I - I: I 52}; W , ‘fiI I. I'I 43;}: I
V ‘. L SVVVEIL‘L' . ~: I ' ‘VV'VV'V‘V'IS’VHIV'VVM ' ”457$! {IVt'IVI-Ii» 'I’Ii " ‘1‘”. VVV'i. 53—365: . £33,131},
s%%ww .7 «~: Iwwméwm «WJW@E%HV%¥WB%%‘ Izfigan
'Vrt { ‘d‘I ‘ ' ~ - ti chi-V‘l'I-x I‘m“: t‘-'”‘ I V V} {IN} V!“ =21 '1’ a ’ re II W I L - :
EVIL-F JV. "I ' I 2311M: tilI‘IIV"M 'TIVVE'V’VLLVVVVW'V Lu? 4 $3.15!.» 33 . Vin; mug; rim 2
“VV :‘I . I; I .IVVI:}I‘IE:VVEW:I'ItEV‘IIIEV'V. ExiiiiitqthVIfiIgfiImfh jg I53“: 1" “‘1“; V m" 1: Iggy-q- :‘IIVVVIII‘I 5
'm »IVE}?‘VVEEIIIIIVES}???i"VIV- ‘éw ‘IVVVZIMII an}: 2:: III-'5‘?“
.lI' "7 "Ii“ ‘flVVE'I‘TIEV-ISISIEXZ‘ VE‘V} 12% I: , I "i ‘ I f“ " 'é
:W .- £$Wfl$flflf V}? vahmwwfifiw¥é&mfi
f. ‘V 1' IRE}; ‘I ‘23}??? ’I‘II‘IIE‘RIIVEVI‘BIIEI‘Ihiss Ii" 5 {Sufi V?“ ‘L “2: VIII“: €225 1th IV
8 r ' I. . '7 1:33}: EIIEI'IVQI VI kl Vgiu; {EV-VA :V‘D; ‘53:}; ' I:;3[;EI it \S‘f$:(‘ EVER, 22h“ .ItIL
" .. ‘ ‘iééItéiéiaat'zI-Ie“ a“ if?“ ‘5 I"“‘II I53?“ III I V V} "VI: “:2: 1:. 5}} III:
. III 5. _i:‘€}‘ I“ 2'; ‘£.§(E .9ng .‘I:‘ ,: .VLFVV |‘ “its; ("f a .‘I I.
Inf! ,. I" {59;}VII:IE'V'I‘:’IVV'§"I‘L'23:’VI‘ 1 i “wit" 3‘11 RM} """t “mnfiuth (“I may 35533.}:
- JVVVVVVIVVVTWWfi“‘VVfifiL--{VI V!%%J%¥W IIIE
":L'«-' 151' ‘ ‘V 'x I“! .I ‘ "‘ "1-5.: ' V " . "7.3.5:? Ii :4
‘I i 45 r , ‘E' , I 5&1? V“ V9; $91,.“ IVER 3 " *Ia’uéti L "1% V" I' ;I IIVIIVVV'VféL I'VE”:
I V1" LII ICE 5 ‘ _ :I ‘4‘-uh“ I} I :5 I”. Eff-fir: II v" ‘V‘VV' L: 5 {NH-a
IIVIVIIgéz' 'I .. VVE'V‘VIV‘LE‘QMVV'V‘HL MI; ;. VCIV'I . . ImIIIIm'I 3"1} “Va-I. fig"??-
EVER'KVVIVV‘} I. r I z i“; EVVEV'; 4%;th 3%: 3V: 1' Vtg “JV-Lit“ :54 ‘3“ 5 _V:‘ 4‘1}:
5339;: 2.73 ' VIE.” VTQ'SVVV- I)?“ I U I LP- V
'I'} I ag'ZVVWIV’IE '1; VRV “HE - I V}; VI MN"; I}.

£17} I'

‘2 VV""L}!§ I
~ fix!
‘-.;

9
v-w

M
u,
5'6“

'5

.l L ‘V‘L ' w: I if”: 1 5 a‘:

“3V5, V {53 am m? {if}
PL IV}?- gig}? -’
I. , '

I‘VVL
3:1 I
';:::'l:"

. ,4 J
.....r .
fi. M.-.

“w .-
.w-vr-u

  

V' #24.

.....

  
 
  
 

“i ‘:L‘: I A
_ a}! Mr! z-Zé:
.- '93}: :3. ya
u, 3.2:". 1.? e1- "
w 2"

VHV' ERLII
11:2 '15}

pas-I’vro

7:71-

  
 
  
 

  
  

'W
WM rm

 
  

 

   

 
 
 
 

    
   
 
 
  
  

    
 

 
 
  
  
  
  

    

  
 
  
 
    
 
 
   

 

    

  

 

   
 

   

 

 
  
 

 

          
        
  
    
    

 
 
 
 

 
       

          
     
  

 
  

     

   

{If .. . 'LVVVEH ILI
\ r ;" . uI‘; , "I ~
'g‘ 4 '23 ‘ , 'V'Ifi. lI‘: ' ‘ " ‘rIV'I “I‘: III; ' . III’IV u ’
III I f V. TE'II ( In - ¥II yr? c ”62‘ JI _ _ II . .-' ‘
.IIVVI§I%%‘I}3'.': 3"?"221‘I-I-e - in: i 11*: I Vigil W *3 ““~?i"-‘*-I'~.1Iuj§§:*"I§i
_ V .- .h “I I '9 n:
' V‘V'}}'V"V"' ’-* 4M IrIzVViI: :g V}, “NAIR -I }1 :VV gm“ U“; 351' "1?: '3}?
mamfi~ V “ -*$x? ““MH‘QfiV%
I {i :“’_I", 5'1. ' KIVV, . ' n't" ‘-
5,3191“ jif- J’ I V 7;; ’VVa 3535?": ’VII. V'IVJVVV III; fi-I
’16; 'I.*. ‘ .«iu'I “3%
,‘ ,". \‘. v.I, ' , I‘VV‘I‘i‘l‘
..'-.‘ .' . EVIII': 2::FTV;V:VI\¢ :15 IIIIE .I'i: r“ ,9ng in“:
e ' uf' ’ng :‘e‘ , ":l'mm. V' V". NI". '3'} {Jim-
:L‘ . II; - 4.3:: I :‘éII-I‘vs I. '12th :I‘u 851.3; II-IIIXI’ f 2:217:13- V IIIt‘i
4‘3" '» . L' :5 VVIII‘VI‘IV‘VEVflg'IUV' ' " (7% 'inu V";
.I I : I} ’I flfi‘ 2'" V'Z'i'ngt'EVVl‘I I EII I. I" ”I ”fig 45.“ ‘_ 3', .‘
iv L. ’.~'.' . . . ”.1.- .- ~O In; I. , '4'
1'” Li" I‘" L 1 .635" $33! VVV'Z'U'I” '1”V'{V§I!§'s 9:”? i i ‘k! }'1'IV'V\" E'N‘i” VI
""Y~II'.‘ I . H I ..,,5‘ L}: .
4 I. i. VI 'VVVIVVIZi‘I'I‘IIAI‘VV’:“IIYSII'IIIII I 73., ,IIIII'I-III‘I‘E ‘ 3: ' -'{:9}???."ngiLiiZ'V'IVVV'IL.
‘ II I . 9 ' 5:"! - -:-. if '5. II}. I
' . I I. i.” £25,” MI I I‘m 3%" ‘ - .II x a-_ I; IIIII :; " WI' '~ III‘V‘I‘VI‘II: +5! I‘-
t" _ - _I ‘2'} 11"");8 I'II?‘ figut 3- Lé- ‘ ,I ‘ 4. mag“, ‘VVV'V’
5.: V ’«f‘; W35? . 5" {Wet E‘Igfifi} 165 ' if?" gfiidugigu . 'II 31$:in
IacthiIzijI - M VLVVV'I‘QLIVVKVVVL‘V' j 39 '{L'V‘V'VVV-y :‘c I 3;ng I E515} III“ II t I,,%I’ VIII’ILI
"ééhfi? 1 V‘fi'“ {VIIIVIVNVEW '9‘ '. HI. ' Va; ‘31 "NV-III" .i 11:: I ”W’- V
~29}: .. JabIIII'W‘IIV'nVI K II "a“! ' ’2?!" JV: ' 7" .. 5 3.5%“; V.}':7o1I;"(I‘-"' ":1 IV}
=65». , m" V?» W“: ’ We “VI 5" 'VI’Z- ~le :5}: W315 Ii {:54} i} ‘ ”H ""V‘
.. MIN {2" (15'1“; 433% t_, 35 “L“?VVL 5 EVE}
Isak; . I; V? {MII III'II 34:3; Vigi‘IHpI? I. r. ’VMU, WI; IiIfI,.V};’IIx!a-g
.. WEI III» . III; III? I I. Mun-I

#4

. .. . .
'. - - - .
4 ‘ . ., n.
.. ....
.mp5 .. . ”‘5‘. "
. ..

     
      
  
  
 

V‘V'r h";

. V75"
. f £535 II ; 'Vg
_ 39.32:: I :III .SVIV IVV'VV" , Hi

44-...“

.. ‘ V}- '53.
III} IIIiIIII IIIIIVVV'JI‘IVII :3; “V ' V? V'
IIIIIIIII J; IIIIeII VVV I‘i .;,-..
IIIIIIIII I V, IIIIIIIIIIIVV III IV VII?‘ *.
WVII : ,gIZV‘W '
"III ‘ '

J--V—'“.~¢
“5.".
mm
4%“; ”Si?-
u 1.: jar; "
gram Mum

uw-nwv

   

.4.»
~

’3

2:4»

.-
‘~.-..—.'M 47,2."
-.

 
 

s
a...»
”.0
Muvi‘
x1
m~"
.—
.
n

{557*}

.‘ s s
--c -

_‘.
wN-n‘
J‘a-w-v

..
3».
,
-
s

CD 593 {559”

 

mfiigiiksiat. with m t; \ @1111? hit
University

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This is to certify that the J

thesis entitled

The Decision to Use Force in Social Control:
An Examination of the Legal and Social Implications
of Policy Formulation and Implementation '

presented by

James M. Peacock

.n- .
4“”.

has been accepted towards fulfillment
of the requirements for

Master of Science degree in Criminal Justice

 

 

071/745 0 [Id/y

Major professor/

0-7639 MS U is an Affirmative Action/Equal Opportunity Institution

PLACE IN RETURN BOX to remove this checkout from your record.
TO AVOID FINES return on or betore due due.

  
  

DATE DUE DATE DUE DATE DUE
£001 15 :99:

if E (6329 2‘ :
or; g 41995:,

 

 

 

 

    
  
   

 

 

 

 

 

   

 

  
 

 

 

JAN
' M

 

 

2 1 1993

f'

__JL__ t
“flfi fll

MSU Is An Affirmative Action/Ema! Opponunlty Institution

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE DECISION TO USE FORCE IN SOCIAL CONTROL:
AN EXAMINATION OF THE LEGAL AND SOCIAL IMPLICATIONS

OF POLICY FORMULATION AND IMPLIMENTATION

BY

James Michael Peacock

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE
School of Criminal Justice

1990

C783)

Qo§-

ABSTRACT
THE DECISION TO USE FORCE IN SOCIAL CONTROL:
AN EXAMINATION OF THE LEGAL AND SOCIAL IMPLICATIONS
OF POLICY FORMULATION AND IMPLIMENTATION
BY

James Michael Peacock

The data this study represent a departure from
traditional methods of evaluating use of force policies
and procedures by depicting the behavior of the courts
as they evaluate policies and procedures before them in
use of force litigation. Two hundred cases citing seven
major causes of action are examined in case law drawn
from 12 federal circuit courts and the 0.8. Supreme
Court.

Holdings of the courts are presented along with
selected dicta from leading cases and the opinions of
leading scholars writing on use of force policies. The
resultant infonmation should enable policy makers to
better anticipate likely behavior of the courts in
potential litigation and to make policy adjustments
proactively rather than after losing a law suit.

The data show some circuits significantly more
plaintiff oriented and much more sensitive to certain

causes of action.

Copyright by
JAMES MICHAEL PEACOCK
1990

This study is dedicated to all the courageous citizens who
try to make a difference between the rocks and hard places

our political system creates for them.

iv

ACKNOWLEDGMENTS

The fact that this study is completed is more a
tribute to the leadership and patience of others than to
the scholarship of the writer. Recognition should go to
the many police officers, corrections officers and
defensive tactics trainers who exposed me to so many
different ways to handle a difficult job.

Special appreciation is extended to Professor Robert
Trojanowicz whose leadership inspired me to try and
encouraged me to finish. Professor Jay Siegle proVided
the structure and guidance required to maintain focus
while professors Ken Christian, Rob Worden, David
Carter, David Kalinich and Judge Peter Houk, provided a
rich mixture of advice when it was needed and humor when
it was critical. A unique debt is owed to Lt. Col.

Paul S. Embert, U.S.A.F. Ret., who was my mentor, and
role model, while I prepared for this study and my
career.

Finally, I must express the deepest appreciation to
my family whose unflagging confidence in, patience with,

and love for me can never be repaid.

TABLE OF CONTENTS

Chapter Page

1. THE PROBLEM . . . . . . . . . . . . . . . . 1

Introduction . . . . . . . . . . 1
The Problem . . . . . . . . . . . . 2
Theory . . . . . . . . . . . . 5
Purpose . . . . . . . . . . . 5
Nature and Benefit of Analysis 6
2. EXTANT LITERATURE . . . . . . . . . . . . 11

Introduction . . . . . . . . . . . . . . 11
Related Literature . . . . . . . . . . . 12
Legal Literature . . . . . . . . . L . . 14
Summary . . . . . . . . . . . . . . . . . 16

3. DESIGN OF THE STUDY . . . . . . . . . . . . 17

Introduction . . . . . . . . . . . . . . 17
Measures . . . . . . . . . . . . . . . . 19
Analysis . . . . . . . . . . . . . . . . 19
Summary . . . . . . . . . . . . . . . . . 20

4. DISCUSSION . . . . . . . . . . . . . . . . . 21

Selection . . . . . . . . . . . . . . . . 21
Training . . . . . . . . . . . . . . . . 29
Assignment . . . . . . . . . . . . . . . 39
Entrustment . . . . . . . . . . . . . . . 42
Supervision . . . . . . . . . . . . . . . 44
Direction . . . . . . . . . . . . . . . . 57
Retention . . . . . . . . . . . . . . . . 63

5. LEARNING THEORY
AND USE OF FORCE POLICY . . . . . . . . . . 69

Classical conditioning . . . . . . . . . 69
Instrumental conditioning . . . . . . . . 69
Gestalt theory . . . . . . . . . . . . . 69
Field theory . . . . . . . . . . . . . . 70

vi

Phenominological theory . . . . . . . . . 70
6. SUMMARY AND CONCLUSIONS . . . . . . . . . . 76

Summary . . . . . . . . . . . . . . . . . 76

Conclusions . . . . . . . . . . . . . . . 83
Negligent selection . . . . . . . . . . . 83
Training . . . . . . . . . . . . . . . . 84
Assignment . . . . . . . . . . . . . . . 86
Supervision . . . . . . . . . . . . . . . 87
Direction . . . . . . . . . . . . . . . . 88
Retention . . . . . . . . . . . . . . . 91

Implications for Future Research . . . . 92
APPENDICES
A. TABLE OF CASES
CITATION AND CATEGORIES . . . . . . . . . . 95

B. CASES BY YEAR DECIDED . . . . . . . . . . . 108

BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . 125

vii

LIST OF FIGURES

Page
Parties Held Liable in Cases Examined . . . . 2
Distribution of Cases By Cause Of Action . . 21
Distribution of Cases By Prevailing Party . . 45
Distribution of Cases By Year and Outcome . . 80
Distribution of Cases By Circuit . . . . . . 82

viii

THE DECISION TO USE FORCE IN SOCIAL CONTROL:
AN EXAMINATION OF THE LEGAL AND SOCIAL IMPLICATIONS

OF POLICY FORMULATION AND IMPLEMENTATION

Chapter 1

Introduction

With respect to the use of force, past efforts to
improve police effectiveness have concentrated on
improving techniques or developing hardware to deal with
violent persons. Unfortunately, people continue to get
injured and " deadly force has remained a potentially
explosive community issue." (Corey, 1981)

Recent examples such as the MOVE incident in
Philidelphia, are as available as any major newspaper.
(The Los Angeles Daily Journal May 21, 1985 p.4 col 1.)
Further, criminal justice agencies continue to be held
liable, and ever increasing sums of money are being
awarded by the courts. (Brown III, 1986) (Tulsky, 1985)
Figure 1 illustrates the distribution of the two hundred
cases used in the following study when separated by

prevailing party.

 

Government Government
Held Held
Liable Not Liable
Number
of cases 200 l 126 74

 

Figure 1 Parties Held Liable In Cases Examined.

mm

This paper presents a response to the problems faced
by all officers, and especially their supervisors, who
must regularly deal with violent and potentially violent
situations, yet find that the techniques and equipment
available to do so are often determdned, during
subsequent litigation, to have constituted the use of
excessive force. It has even been suggested (Dade
County Grand Jury, 1982) that current training programs
which deal with use of force questions may, in fact,
exacerbate the situation by encouraging officers to use
more force than necessary to resolve stressful
situations.

It is probable that there are no techniques which are
totally safe to employ in all circumstances. If this is
so, the emphasis must be placed on teaching the
practitioner when certain types of responses will be
deemed acceptable by the trier of fact. This requires
the practitioner, as well as the policy maker, to know

who will be reviewing the officer's actions, and how

they are likely to perceive the events in question. It
is one thing to have co-workers agree with a decision,
but quite another to have the courts, and the public at
large, lend their support. (Muir, 1977) (Skolnick,
1966).

Most police academies require the officer to learn
the most often applied areas of the law to the point
that most officers can-recite traffic law and the penal
code, verbatim. Still, both criminal cases and civil
litigations are lost because of failure to anticipate
how a court will evaluate actions of force or how the
court's perception of the officer's role will differ
from that of the officer. This does not appear to stem
from a lack of ability on the part of line officers. It
seems, rather, that they simply do not receive enough
training in the intent of the law or in its historical
development to be able to consistently make decisions
which are compatible with the decisions of the courts.
This is a pattern which seems to be reflected in other
areas of police training, the effectiveness of that
training having come under increasing scrutiny in recent
years. Goldstein (1977) put it this way: "There is
growing doubt that training in its present form achieves
the objectives its proponents hold out for it."

One mid-Michigan prosecutor stated that he liked
working with more experienced officers because they made

"fewer bad arrests."

One of two things happens to officers as
they gain more experience in court. Either
they learn the law from being repeatedly
embarrassed by defense attorneys, or they
realize their lack of preparation, and avoid
making arrests which are the least bit
complicated.

Notice that he didn't say more good arrests, just fewer

bad ones.

Research Question

This paper is intended to be a descriptive and
prescriptive thesis, which will examine the relationship
between policy formulation, policy implementation, and
the law as they are applied to the decision to use force
in social control. Primarily focusing on the needs of
police and corrections administrators, a number of
alternative courses of action will be examined.

The basic unit of analysis will be established case
law. Discussion of the implications will take into
consideration the 0.8. Constitution, federal statutes,
state constitutions, and state laws.

The research question guiding this investigation has

two parts:

1) Is governmental liability in the use of force a

result of unsound policy decisions?

2) If so, does the problem lie with the formulation
of policy or with the implementation of the

policy?

Theggy

The above hypothesis is based on a number of theories
of learning. The specific tenets of these theories and
how they are important to the administrator are

discussed in chapter 5.

ur e

It is fairly safe to say that few police officers are
lawyers or medical doctors or, even, martial arts
experts. Yet, these are the experts who may be called
to second guess the officer's decisions. If legal
action is taken, plaintiff's attorney will ask difficult
questions, which the practitioner is probably not
qualified to answer, then introduce the "expert" to
impeach the practitioner's answers and decisions.

The idea behind this project is to show the reader

what courts have done with issues relating to the use of

force in the past. This will enable the reader to
anticipate the types of questions the courts will ask
those involved in any use of force action resulting in
litigation. Having done so, the decisions and actions
of those involved should be more in tune with the
opinions of the reviewing body. The decision would
still be reviewed, as well it should be, but it would,
at least, be an informed decision, rather than one based
on instinct, emotion, or habit.

The reader will have an opportunity to examine the
behavior of the courts and their impact on the evolution
of the law. Beginning with the Constitution, and
concentrating on those areas of the law most problematic
for the practitioner, civil and vicarious liability,
this exercise will contrast and compare various
strategies and techniques for applying force. Based on
the results of the cases examined , and the opinions of
various authorities, Recommendations will be made as to
efficacy, reliability, and defensability of various

methods for developing policies and procedures.

mt emmxagslma
A prominent professor of law once wrote of police and
other legal officials:

Legal officials may be a necessity but they
are not an unmixed blessing. They may err
either by exceeding the bounds of specific
legal powers or simply by abusing their
discretion. Of course, when they do err,
this is usually not because they are evil

men. More often, it is because of lack of
information, bad advice, excess of politics,
or sheer wrongheadedness. (Summers, 1972)

That same author also pointed out that in the United
states, the president is usually a lawyer, as are most
state governors. Generally, more than 50% of
congressmen and state legislators are lawyers. Most
heads of administrative agencies are lawyers. Finally,
and of particular interest to this study, almost all
judges are lawyers. The implication of this seems
clear. Knowing how lawyers and judges behave could be
extremely valuable to an administrator who might have to
deal with them on their own turf. With this in mind,
the strategies of attorneys who specialize in police
misconduct litigation will be carefully examined and
presented so that the reader can more fully understand
this aspect of our adversarial justice system.

For instance, the National Lawyers Guild, and other
publishers, produce a considerable body of literature on
the subject of police misconduct and civil rights
litigation. The dozens of books available on these
subjects have two things in common: (1) they are all
written and marketed as tools for plaintiff's attorneys
to increase their chances of winning their cases, and
(2) they instruct the reader in the past behavior of the
courts and current trends in judicial decision making.
In other words, they explain the rules of the game, then

present specific strategies for winning.

After reading this work, the practitioner will be
able to evaluate use of force policies and procedures in
the same manner as plaintiff's attorneys or, more
importantly, the courts, to determine which offer the
greatest likelihood of success in the field with the
least amount of risk in court. Doing so should
facilitate the selection of those policies and
procedures which are most in keeping with the mandate of
the agency. This, in turn, will allow the administrator
to avoid, or discard altogether, those policies and
procedures likely to be indefensible when reviewed by
higher authority.

An example of how the findings of this study could be
used is as follows: Suppose an administrator is called
by a disgruntled citizen regarding a use of force
incident. After investigating the citizen's allegations
he finds that force was, in fact, used but it is unclear
whether the force was excessive under the circumstances.
The city attorney advises the city to settle the case
out of court but the city council is reluctant to admit
that the city is at fault. The council asks the
administrator for advice in the decision to settle since
he is also named in the suit. Questions to which the
administrator might want answers are:

How does this case compare with others?
How have similar cases been decided in the past?

Is this particular federal circuit more

plaintiff oriented or more likely to hold in
favor of the government?

What types of cases are most likely to be
affirmed or reversed on appeal?

What guidelines or admonishments have the courts
handed down in past opinions which should be
considered in this decision?

What impact is expert testimony likely to have
on the outcome of the suit?

Clearly, there will be more questions, however,
answers to these and others will be readily available to
the reader here and will save many hours of research.
Most importantly, the administrator will be able to
quickly survey the past behavior of the courts and use
the information in a more timely fashion.

Thinking more proactively, an administrator could
utilize the information presented here as part of the
regular policy formulation and goal setting process
recommended by Whisenand and Rush (1988, p. 172). As
these authors point out: "If you want to know what a
police department's real objectives are, closely observe
what members of the organization actually do. It is
behavior that counts."

This applies to the agency as well as to the courts
who will be second guessing what members of the agency
have done. If one observes that the court wants to see
specific types of training, then the administrator would
be wise to implement and document those types of
training programs. If the administrator observes that

the courts are painfully unforgiving of inadequate

10

selection processes, then the prudent administrator
should find out which agencies have been litigated for
inadequate supervision, which ones have lost (and why?)
and which ones have successfully defended their programs
(and again, why?).

Since each new case has at least some impact on all
similar cases that follow and may have profound impact
if it raises a new issue or argument, the administrator
must regularly and frequently evaluate the agency's
policies and make decision about alternative means to
address any potential problems discovered. Those
decisions are decisions to which the administrator, and
possibly the agency, will be held liable. According to
Gottfredson and Gottfredson (1980), improving decision
making must be an ongoing evolutionary process since
sound management policy dictates that decisions should
contribute to future decisions by helping to make those
future decisions easier to make.

This study is presented as a tool to enhance the
process of rational decision making by assembling
important facts about the behaviors of key actors in the
system. The reader is encouraged to use these facts to
weigh alternatives available in the administrator's own
environment prior to the administrator becoming a fact

case personally.

CHAPTER 2
EXTAN T L I TERATURE
Magnetics
By social science standards, a substantial
literature has accumulated regarding the use of force.
Despite this development, few solid conclusions or
inferences can be drawn from extant studies. One
explanation is that various studies define force in
different ways, which precludes their findings from
being cumulative. Another is that some studies focus on
"deadly force" while others focus on "non-lethal" or
"less than deadly force". Unfortunately, there is no
clearly defined line, either in medicine or the law,
which separates "deadly" from "non-deadly" force

What begins as a grab or a shove may well result in a
fall and a serious injury or death. A slight blow,
intended to stun and thereby gain control, can result in
crippling or even killing the suspect. Intent is a
mental process and has absolutely no influence on
physics or physiology.

An additional impediment to the collection of data is
that research tends to focus on what has "not worked",
since incidents which caused no harm are seldom
reviewed (Sherman, 1980). Good science requires that a

representative sample of incidents be examined rather

11

12

than a clearly biased sample of only those that went
wrong.’

Frequently, data drawn from such samples, are used
to make political and policy decisions, as when
Congressman John P. Conyers (1980), Chairman of the
House Judiciary Committee, made a statement during
hearings on the subject. He stated that " Each year in
the United States, between 100 and 125 police officers
are killed by civilians, but about three times that many
civilians are killed by police." This statement fails
to consider the data in light of the total number of
police citizen contacts.

Still another obstacle is the tendency of the
observers, as well as practitioners, to evaluate the use
of force in terms of questionable indicators such as
speed of incapacitation, ease of application, duration

of effect, and extent of injury caused (Schultz, 1985).

mummy.

A closely associated literature, which has grown
considerably larger than that dealing directly with the
use of force, is research associated with the effects of
education on police performance. Although it suffers
the same problems as the studies on force, it indicates
that there is a consensus among researchers that
"attitudes" are important enough to be examined in any

comprehensive study of police performance. As Worden

13

points out:

The principle exception to the rule of
null findings concerns officers attitudes
toward legal restrictions on use of police
authority. College educated officers
appear to be more amenable (or less hostile)
to restrictions imposed by the courts.

To the misfortune of the researcher, however, is the
fact that attitudes are difficult to control for in a
scientific study. Once again, achieving a consensus on
the nature and effects of attitudes is elusive (Kalinich
and Pitcher, 1984.; Pay, 1988; Whisenand and Rush, 1988;
Muir, 1977).

Although the use of force gets considerable attention
in the popular media, it is only one of many tasks
associated with law enforcement, corrections, and
security. Information on how often officers perform
individual tasks is available, but examinations of how
well they are performed are particularly scarce
(McCampbell, 1986).

An additional complication for evaluation is the fact
that no consensus exists as to what is "good" or "bad"
performance. Style and attitude are often as much in
question as is technique (Broderick, 1987).

The literature on ethics and police deviance is
growing as quickly as any other area of criminal justice
research, but again, areas of focus are so diverse that

little consensus can be established other than that

police and corrections officers should be more ethical

14

(Presidents Commission on Law Enforcement and the

Administration of Justice, 1967).

Lmlhiisrsture

The nearest approximation to consensus comes from the
legal profession, more specifically, from those who
specialize in police misconduct litigation. Their
focus is on winning their client's case. If this is not
possible, the focus shifts to pressuring the government,
or its agent, into as large a cash settlement as
possible.

One widely used book, written specifically to guide
attorneys through a police misconduct case, clearly
indicates the orientation of such literature.

We have attempted to present the subject
matter in the format most useful to the
practitioner who has been retained to file
damage actions for police misconduct. In
many cases, money damages are not adequate
to remedy the constitutional violation; an
injunction or declaratory relief is
necessary to insure full protection of
constitutional rights. The Supreme Court
has placed substantial restrictions on
equitable relief in civil rights cases, but
with careful preparation, systematic
violations of rights can be remedied.
(Avery 8 Rudovsky, 1988)

The subject matter discussed above is primarily case
law or how the courts have handled such cases in the
past and how to take best advantage of the rules of law
to win the case. All strategies and tactics are
discussed from the position that the best strategy is

the one that wins.

15

This is a sharp contrast to traditional police
literature, the authors of which, seem to be divided
into innumerable "camps" on virtually any issue from
type of weapon to carry to the amount of
education/training required (Carter 8 Sapp,1988; Carter,

Embert, Payne, 1987; Brady, 1983).

It is possible that the greatest impedance to those
who seek to establish some standard or continuity in the
use of force comes from the Supreme Court itself. As
Avery 8 Rudovsky put it:

Other than in deadly force cases,
The Supreme Court has never addressed
the question of the appropriate
definition of excessive force by police
officers against citizens at liberty.
However, the Court has addressed the
question of the use of force in the
prison context, under an Eighth Amendment
analysis (Police Misconduct pp. 2-23).

For some reason, police officers are reluctant to
recognize that the moment they detain a suspect, they
became "custody officers". There is a longstanding
tradition in many law enforcement agencies that the
"best" officers are assigned to road patrol duties
(doing "real police work") and the less capable
personnel, or those being disciplined, are assigned to
custody work in the jail or lock-up (Kalinich, and
Embert, 1987). Although there seems to be some erosion

of this tradition, it is still quite common and

contributes to liability problems because officers from

16

the two different "camps" do not share information. Each
group fails to see the need to study the law regarding
responsibilities of the other (Embert and Kalinich,
1988).

Perpetuating this situation, are the many scholars
and police management theorists who have published
police management and administration texts from a
variety of approaches which often seem at odds with one
another (Roberg 6 Kuykendall, 1990). It is hoped that
this work will provide a common reference point that all
actors in the system can utilize for the common good of

all concerned.

Summer:

The works cited above represent a brief sample of the
literature as background to assist the reader in
understanding the thrust of this study. For the
reader's convenience, a more detailed discussion of
selected works is incorporated with the discussion found

in chapter 4.

CHAPTER 3

DESIGN OF THE STUDY

W

In this study, the literature and case law regarding
the use of force are examined to find those types of
cases which most frequently result in a determination of
police liability and a subsequent award of damages. As

Carter (1984) writes:

While various litigious alternatives
are available to persons seeking redress
for police misconduct, the most common
avenue employed is a civil action for the
deprivation of civil rights under 42 U.S.C.
1983.

With this in mind, those cases which deal with civil
liability, as detenmined by 42 U.S.C. 1983, as well as
others which have questioned the constitutionality or
legality of the government's use of force, will be the
focus of this study. More specifically, the seven
issues commonly contested in 1983 cases, selection,
training, assignment, entrustment, supervision,
retention, and direction, will be studied to determine
how frequently they are named as unacceptable to the

Court.

A number of tables are used to illustrate patterns of

behavior found in the decisions of the courts. The

17

18

tables enable the reader to quickly observe any clusters
of holdings which might be useful in formulating

policies or deciding on most appropriate procedures.

Cases exmmined are those which have been decided
by the 0.8. Supreme Court or have been cited as
"leading" by that court, or which have been decided by a
0.8. Court of Appeals and not reviewed by the high
court. These cases are selected because they set the
limits of acceptable conduct for agents of social
control, and lower courts must generally follow the
guidelines established by the higher court (Samaha,
1988).

Certainly, there are other variables which could
influence whether a particular act is ultimately
determined to be constitutional. The relative skill of
opposing attorneys, financial resources of adversaries,
deaths of witnesses, and public outcry can all have
significant impact on the outcome of litigation. No
attempt is made to control for these variables other
than to discuss them in the summary and conclusion
portions of this article.

What is important for the reader to recognize is that
this is not an experiment to find out what will happen.
Rather, it is an examination of what has already
happened and how those results can be applied to future

decisions and actions.

19

Seizures.

Measures of the effectiveness of police procedures,
are rather simple. If the court found the agency
liable, or found the agency not liable but admonished it
for its actions, then the police decisions regarding the
use of force were bad decisions. If the court found the
agency to be not liable, then the decisions regarding
the use of force were good decisions. The cases will be
examined for indications of what, in particular, the
court found lacking or admonished the agency to change.

Clearly, many instances of governmental abuse of
authority will go unexamined by this approach, but the
cases which the court tends to see as most important
will likely be represented, and it is with the court's

opinion that the agency must ultimately comply.

M11121;

Seven basic causes of action will be examined in
light of the Court's own decisions and statements.
These are:

Negligent Selection

Negligent Failure to Train

Negligent Assignment

Negligent Entrustment

Negligent Supervision

Negligent Failure to Direct

20

Negligent Retention (del Carmen, 1986).
Since the court often relies on the testimony of expert
witnesses to provide guidance in areas where the court
deems itself to be unqualified, the opinions of
authorities will also be presented for the reader's

consideration.

ENEEBII.

This study examines and describes the past behaviors
of the court in its review of the behaviors of
government agents with regard to the use of force. It
uses damage awards as a measure of the magnitude of
government error and as an indicator of where change in

policy is necessary.

CHAPTER 4

DISCUSSION

In keeping with the intent of this paper, discussion
of the findings will be as straightforward as possible
and will begin by examining the seven causes of action
in the order presented in chapter three. Figure 4.1
presents the causes of action and the frequency with

which each was addressed in the sample.

 

 

 

 

 

 

 

 

 

Causes of Total Number

Action of Cases
Selection 7
Training 82
Assignment 0
Entrustment 1
Supervision 58
Direction 60
Retention 10

Excessive force only 50

 

 

 

Figure 4.1 Distribution Of Cases By Cause Of Action

Salesman

Of the two hundred cases examined in this study, only

21

22

seven mentioned the selection process as an issue. At
first glance, this might seem surprising since the
literature is replete with advice urging the raising of
selection standards (Broderick, 1990). Of the seven
selection cases examined, five were decided in favor of
the plaintiff. Arguably, with such a small sample it is
somewhat risky to make projections; however, if that is
representative of the position of the courts on the
importance of selection, it warrants further
exmmination.

In an attempt to understand why the selection issue
was not raised more often, the dicta from the individual
cases were studied in search of key phrases or ideas
which mdght shed some light on the subject. The cases
revealed a consistent pattern of linking selection and
training together almost as if they were inseparable
words. Only one case, Parker v. Williams, 862 F.2d 1471
(11th Cir.1989) treated selection as a separate issue.
That case involved a sheriff's deputy, charged with
rape, who had been hired despite the sheriff's knowledge
that the deputy had a previous conviction for indecent
exposure.

A further search of other literature reveals that
recent treatment of the selection process tends to
target problems other than misconduct after employment.
Generally, they deal with affirmative action and

community relations and how to recruit and retain more

23

qualified minority and women candidates from the
community served(Browdy, 1984), (Los Angeles Times, Dec.
29, 1985), (0.8. Commission on Civil Rights concerning
the Detroit Police Department's racial quotas for
promotions, 1984).

It may be that there is a tendency for most observers
to naturally associate selection with affirmative action
and other fair employment practices because that is how
it is most often presented in the literature and in the
media (Stahl and Staufenberger, 1974). It would seem
imprudent to assume that the actors in the justice
system are any less susceptible to the tendency to think
in established patterns than the rest of the population
(Albrecht, 1982).

Another explanation of this focus on equal employment
opportunity issues might be the fact that these
considerations are required by law. Title VII of the
Civil Rights Act of 1964 was amended by Congress in 1972
charging the Equal Employment Opportunity Commission
(EEOC) with the responsibility for administering its
provisions (Swanson, Territo, and Taylor, 1988). In
essence, Title VII made impermissible discrimination in
employment decisions unlawful. "Impermissible" meant
based on race, sex, color, religion, or national origin.
"Employment decisions" included those involving hiring,
promotion, demotion, transfer, and layoff. The law

clearly described bona fide occupational qualifications

24

(BFOQ). and laid down strict guidelines for their
utilization by employers. Most importantly from the
perspective of this study, it created an agency whose
sole purpose was to ensure that all employment
(selection) decisions were made in accordance with Title
VII. That placed the full power and resources of the
federal government on one side of an argument over an
employment decision, and left the resources of the
employer on the other. .Clearly this placed tremendous
pressure on the employer to be able to justify each and
every employment decision on the basis of Title VII
guidelines.

Although the intent of the law was to eliminate
unfair labor practices, it also had the collateral
effect of preventing personnel managers from making such
decisions based on less articulable reasons such as the
manager's experience in training persons with certain
behavior characteristics. In other words, if an
experienced police administrator is interviewing a
potential employee and he simply feels uncomfortable
about how the applicant would perform, or doubts the
sincerity of the applicant's answers, the administrator
may be forced to hire the applicant or face the
expensive process of justifying the decision not to hire
to the EEOC (Condon, 1986).

Condon provides employers a list of questions which

must be avoided in the interview because as he puts it:

25

"It is important to avoid even the appearance of
discrimination. That means you must not ask questions
in interviews or on application forms whose answers
"might ever be used to discriminate." It seems obvious
that eliminating questions which "might ever" be used to
make improper decisions eliminates a long list of
questions which also might be justifiable in the
interest of screening out potentially unsuitable or
dangerous candidates.

Title VII has been interpreted by the EEOC and the
courts as providing employers a bit more latitude when
hiring for positions "requiring a special degree of
trust and reliability" (Condon, p.106), which would
include police officers, but it is also clear that
selection questions should only apply to the job applied
for and not to a job to which the applicant might be
promoted some time in the future. In other words an
applicant cannot be screened out of a patrol officer
position because he lacks the skills or higher standards
of personal integrity expected of a good sergeant. The
human resources manager, under these circumstances, is
strongly encouraged to consider candidates that would
otherwise be screened out earlier in the process, which
raises the overall expense of the process, and to hire
those they would otherwise not have been hired.

Another factor contributing to the self-evident

neglect of the selection process by both the agencies

26

and the courts is the apparent cost of the process
compared to the perceived benefit to the agency. As one
recent text on police management describes the process:
"The basic considerations are who you want to reach and
the dollar cost per sworn-in recruit." (Thibault, Lynch,
and McBride, 1990).

Since Title VII limits the types of questions an
employer may ask, it places a heavier burden on the
background investigators to screen out unsuitable
applicants. Still, most writers on the subject
recognize that not all agencies can afford to staff a
full-time background investigations section (Thibault,
et al, 1990). This places further constraints on the
amount of effort committed to the process. Despite this
recognition, even the police community itself continues
to call for more stringent selection criteria.

The Commission on Accreditation for Law Enforcement
Agencies Incorporated (1984), published a standards
manual which established requirements for accreditation.
The selection process and the background investigation
were listed as "mandatory" for all agencies regardless
of size. This places the agency in the position of
being subject to two types of dependence, as described
by Solomon and Gardiner (1973), the normative influence
of the Commission on
Accreditation, and the legal-authoritative influence of

the EEOC. While the commission on accreditation and

27

other police organizations may wish to see more
stringent standards of selection, it is the EEOC that
can back up its influence with the force of law. The
choice for the agency is clear. If one is to err, one
should err on the side of the EEOC, even if that means
running the risk of hiring a few more individuals who
prove to be unsuitable later on.

The final variable influencing the ambivalence
associated with selection is the fact that the entire
process is rife with technical uncertainty. The
diversity of missions, political influences, local and
constitutional legal requirements, and the chief
executives' preferences make it difficult to make
generalized statements about what the personnel
selection process entails or for what a personnel unit
is responsible (Territo, Swanson, and Chamelin, 1977).
Although some agreement may be found in the literature
as to what basic functions must be accomplished, there
is little guidance or consensus on how to accomplish
those goals or what specific techniques are effective.
Even the order in which the various steps should
accomplished is the subject of some debate, with the
most commonly accepted solution being "that phases
should proceed from the least expensive to the most
expensive (Territo et al, 1977).

More importantly, the validity of the various testing

instruments is constantly under attack (Swanson, et al,

28

1988). A whole host of commercial entrepreneurs have
moved into the evermore lucrative personnel selection
business. These private enterprises market various
means of screening candidates for employment and provide
everything from training in interviewing skills, which
purports to help agency personnel detect untruthful
responses in the interview, to written examinations
which claim to meet all EEOC requirements of cultural
neutrality and validity, to highly sophisticated
hardware which operators contend can test for
truthfulness, physical conditioning and coordination,
reaction time, and psychological suitability for the
job (Territo et al, 1977).

Since most of the technology is still relatively new,
there are few established standards for plaintiffs'
attorneys to submit as evidence against an agency in
support of a charge of negligent selection. As the
technology becomes more commonly used and accepted, it
is likely that hardware and software will gradually earn
increased credibility in the eyes of the court. In the
meantime, it behooves the administrator to keep abreast
of developments in the emerging science of personnel
selection because it is probably only a matter of time
before that personnel manager will be told by the court
that the decision maker "knew or should have known" that
there was available a more reliable method of screening

out unsuitable applicants.

29

Once again, the score on selection cases at this
writing is 5 to 2 in favor of the plaintiff. That means
the police agencies lost 71 percent of the cases where
selection was an issue. Only one other issue examined
had a higher loss rate for the police. Though there may
be some argument as to whether good cops are "born" or
"made" the decisions of the courts and the supporting
opinions from the literature, indicate that the

importance of the selection process cannot be

overemphasized.

mining

The adequate training of personnel entrusted with
special responsibilities is a subject which the courts,
as well as the legislature, have traditionally taken
very seriously. This is evidenced by a history of
stringent laws passed regarding the licensing of
doctors, lawyers, aviators, and others. The courts have
consistently held that they will not tolerate someone
placing others at risk by performing some act which they
are not qualified to perform, such as practicing
medicine (Summers and Howard, 1972). In a similar vein

the courts and legislature demonstrate the same type of

30

thinking by refusing to hold people liable for failing
to perform actions for which they are not qualified
(i.e. "Good Samaritan" laws). It should come as no
surprise, then, that the court looks at the awesmme
responsibility of police and corrections officers as
necessitating substantial training.

[Iln light of the duties assigned to
specific officers or employees the need
for more or different training is so
obvious, and the inadequacy so likely
to result in the violation of
constitutional rights, that the policy
makers of the city can reasonably be
said to have been deliberately indifferent
to the need. (City of Canton, Ohio v.
Harris, 0.8. , 57 U.S.L.W 4270
(Feb.28, 1989)

 

 

The court goes on to state that where police "often
violate constitutional rights...the need for further
training must [be] plainly obvious to the city policy
makers." (City of Canton, Ohio v. Harris, 0.8.

, 57 U.S.L.W 4270 (Feb.28, 1989). In this case

 

 

the Court was referring to restrictions on the use of
deadly force as an example which would amount to
"deliberate indifference" if the city failed to train
adequately. According to Avery and Rudovski (1989), the
above opinion "provides a workable framework for
litigating failure-to-train or failure-to-discipline
cases."

Training was the single most commonly stated cause of
action in the 200 cases examined in this study with a

total of 82. Fifty nine per cent of those cases (48)

31

were decided in favor of the plaintiff, while Forty one
percent (34) were decided for the government. Although
this seems like a much better balance of results, the
sheer number of cases which charge negligent or
inadequate training should make it obvious that training
is an important issue in the eyes of the court. That
data coupled with the above quoted passage from City of
Canton, Ohio v. Harris, should spur even the most
reluctant observer to consider adequate training
essential to surv1val in a court of law if not on the
street.

Consensus on the general need for more and better
training is fairly common in the literature. Police
agencies in this country, and others, have a long and
rich history of providing some sort of specialized
training in preparation for a police career (Reith,
1975). Where expert opinions tend to diverge seems to
be where the term "adequate" is applied. This is
especially so when the word adequate is associated with
some objective standard which can be used by the court
to determine when certain types or amounts of training
"were inadequate". Historically, this country has seen
an extraordinary diversity of opinions on how much
training is enough for police officers. As long ago as
1917, writers described a variety of training approaches
in various departments. Among them was found a program

taking three years to complete as part of a work-as-you

32

go curriculum including physics, chemistry, biology,
physiology, anatomy, anthropology, criminal psychology,
psychiatry, theoretical and applied criminology, police
organization and administration police practice and
procedure, microbiology, microanalysis, public health,
first aid, and elementary and criminal law (Fosdick,
1969). At the other end of the scale most departments
of the day saw no reason to provide any training.

Even recent history shows a comparable diversity. In
a study (McManus, 1970) funded by the Law Enforcement
Assistance Administration (LEAA), training programs in
this country ranged from 120 total hours in Kalamazoo
Michigan, to 1,085 hours in Chicago Illinois.

More recent literature tends to emphasize the
importance of substance over duration of training but
time in the classroom remains the most easily quantified
variable and, therefore, the easiest for triers of fact
to understand and compare. This comparison is what the
court must do in conjunction with considering the
opinions of the experts. The more easily a subject is
reduced to numbers, the more easily it can be compared
with the numbers of other agencies by someone who is not
personally an expert. It is at this point that
established standards are most likely to factor into
the court's holding.

In the absence of any established standard, the

magnitude of the difference between what is seen in

33

other similar agencies and what is found in the
defendant agency will often determine the decision of
the court. In Hand v. Dayton-Hudson 775 F.2d 757 (6th
Cir. 1985) the court noted that while other agencies in
the same federal circuit were requiring as much as 480
hours of preservice training for law enforcement
officers, the agency in question required none. Of the
40 hours of on-the-job training that was required, none
of the training received by the defendant officer dealt
with arrest procedures or treatment of arrested persons.
The court, in finding for the plaintiff, reasoned that
the city's failure to train its officers created the
requisite causal relationship between the city's neglect
and the officer's unconstitutional behavior. The end
result was an award of $82,000.00 in compensatory and
punitive damages against the city. Similarly, another
court stated in unmistakable language that the evidence
before the court indicated that the circumstances of the
shooting in question were "so outrageous as to indicate
training and supervision of the officer must have been
inadequate." ( City of Oklahoma City v. Tuttle 471 0.8.
808, 105 S.Ct. 2427 (1985) Considering the court's
historical reluctance to make inferences, that is a
strong statement indeed.

For the police administrator seeking guidance from
the courts, there is a fundamental problem in that he

will never be certain whether his training programs were

34

accurate until it is too late. The reason being that
the courts will always evaluate the training of the
officer "after the fact", after something has gone
wrong, after someone has been harmed. Never will the
training be evaluated by the court before the fact.
There are a number of reasons for this. First, there is
no reason in the law for the court to be involved in the
functions of the executive branch. To do so would be a
violation of the separation of powers required by The
Constitution of the United States (Lieberman 1968). A
second constraint on the ability of the court to
evaluate training before the fact comes from Article III
of the Constitution itself. In essence it states that
Supreme Court may interpret the Constitution only within
the framework of a "case or controversy". What this
means, for the criminal justice administrator, is that
court will not give advisory opinions on any
constitutional issue (Felkenes, 1988). The only way the
administrator will know for sure how his training
program compares with the opinions and expectations of
the court is for a citizen to allege harm, bring suit,
and be granted a trial.

There are a few states which permit their supreme
courts to give opinions on state laws under
consideration or to comment on their constitutionality
under the constitution of that state. This is justified

as a means of saving time and money by not enacting laws

35

that would later be ruled unconstitutional (Felkenes,
1988).

Third, the "standing to sue doctrine" used in federal
court provides that until such time as the plaintiff can
show that the conduct complained of "invades or will
invade a private substantive legally protected interest
of plaintiff citizen" there is "no justicable
controversy" (Associated Industries of New York State
v. Ickes). In other words, the court can't hear it
because it hasn't happened yet.

This leaves the administrator with three sources of
advice on the constitutionality of and decision under
consideration: 1) clearly settled case law, which may
require a considerable amount of expertise to interpret,
2) opinions of attorneys and other experts which may be
(and probably will be) conflicting leaving the
administrator in the same position minus the consulting
fee, and 3) Attorney General Opinions.

Attorney General Opinions are published by the
attorneys general of the United States and the
individual states to interpret particular statutes or to
provide other types of legal advice to government
officials. While it is true that these opinions can be
found in the annotations included in annotated versions
of federal and state statutory codes, and it is also
true that various courts may use such opinions as

persuasive authority for deciding legal issues with

36

which the opinions have dealt, it must be remembered
that attorney general opinions are not binding on any
court (Wren and Wren, 1984). It must also be
remembered that the attorney general in question will be
an expert in the law, but it is unlikely that he will
have similar expertise in training or other specialized
areas of police work. If one turns to the case law
available, most administrators immediately encounter a
number of difficulties involving access to the specific
information needed. Among these difficulties are:
availability of a complete law library, expertise in
finding the law, expertise in interpreting the law, and
time to accomplish the previous three. This study does
not intend to address the resolution of these problems.
Rather, they are pointed out for the reader's benefit to
assist in recognizing the importance of working
proactively by cultivating the appropriate expertise,
either personally or through the ubiquitous "rolledex".
Expert testimony is an accepted fact of life for
virtually any case involving specialized knowledge with
which the average juror is unlikely to be familiar.
Under Rule 702 of the Federal Rules of Evidence, expert
testimony is provided for as follows: If scientific,
technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or

37

education, may testify thereto in the form of an opinion
or otherwise. Clearly the rule is recognizing the
necessity of using experts to assist the trier of fact
in evaluating the importance of evidence presented and
the interrelationships of the facts. But the courts and
trial lawyers also recognize the potential for misuse of
these experts. While training cases such as City of
Oaklahoma City v. Tuttle, 471 0.8.808, 105 S. Ct. 2427,
2430 (1985) turn almost exclusively on expert testimony
it is also readily apparent that there are experts on
both sides of the issue and the case may not be decided
on the merits of the case but on the adversarial skills
of the attorneys. As Avery and Rudovsky (1989) write:

Preparation of the expert testimony prior
to trial is the key to a successful
presentation at trial. Counsel must take
the same care in preparing a police expert
to testify that she would take with any
other scientific or technical witness.

The expert should be completely
familiarized with all of the facts and
circumstances of the case prior to
testifying. Counsel should be particularly
at pains to bring to the attention of the
expert all of the evidence upon which her
opponents intend to rely at trial. An
expert opinion which is based on a partial
view of the evidence or entirely on one
party's version of the facts is only of
limited value. On the other hand, it is
particularly devastating if the expert can
render an opinion based on the opponent's
version of the facts.

The above advice seems especially sound in light of
cases such as Young v. City of Killeen, Texas, 775 F.2d
1349 (5th Cir. 1985) where the expert witness was shown

a slide photograph of the scene of the event in

38

question. Then, based solely on the officers version of
what happened, the expert was able to render an opinion
favorable to the plaintiff. In that instance, the

expert's opinion was based on four separate issues:

1) Threat to the officer; he was protected by his
vehicle and had no need to fire.

2) Effectiveness of the chosen method; he was too far

away to assure an accurate shot.

3) Risk to third parties; the residential character of
the area made danger to third parties unacceptably
high.

4) Alternatives available; other means for apprehending

the suspect were available to the officer at the

time.

Based on the testimony of the expert, a substantial
award was granted to the plaintiff and defendants'
appeal was denied without opinion (See also Parker v.
District of Columbia, 850 F.2d 708, D.C. Cir. 1988.,
Warren v. Lincoln, 816 F.2d 1254, 6th Cir.1987).

Another factor used by the court in this comparison
process is the number of areas where training is
deficient. There may be no single area which is grossly
different from other agencies, but if the court sees
significant deficiencies in a "multitude of areas",

the reasoning is that also demonstrates deliberate

39

indifference to the obvious training needs of the
officers. This occurred in Wierstak v. Heffernan, 789
F.2d 968 (lst Cir. 1986) where the city failed to
"adequately train" on firearms, high-speed chases,
roadblocks, the need for force in arrest situations, and
the need to inspect injured prisoners.

In view of the historical information presented
above, the expert opinions from the literature, and the
decisions of the court examined in the study, it seems
clear that in the eyes of the courts, the need for
training of police officers is "obvious" and may be one

of the most important of the issues examined.

Assignment

The literature used elsewhere in this study rarely
mentions negligent or improper assignment as either an
issue or a cause of action. The reader, however, should
be cautioned that this should not be taken as an
indication that assignment is unimportant to the courts.
The method of selection used in this study did not
attempt to achieve a balance of cases based on cause of
action. Rather, the cases were selected in a attempt
to assemble those cases most often cited by attorneys
and authorities from both sides of the use of force

issue. The resultant paucity of certain types of cases

40

indicates only that they did not happen to appear in the
sample selected for this study.

The Commission on Accreditation does consider the
issue of assignment in its requirements for
accreditation. There are three stated requirements but
only two of them are mandatory. Of the mandatory
requirements, one requires "a written directive"
advertising openings for special assignments be
circulated agencywide. The other requires that the
qualifications for any assignment within a position
classification be made clearly known to agency
personnel, and should be based on skills, knowledge, and
abilities required for the assignment.

It is obvious that the intent of these requirements
is to address fair employment issues rather than issues
involving potential risk to the public from poor
assignment practices. Still, del Carmen (1986) writes,
"The rule is that a supervisor has an affirmative duty
not to assign or leave a subordinate in a position for
which he is unfit." del Carmen also provides the
following example. After numerous disciplinary reports
regarding a particular officer were brought to a
supervisors attention and no action taken to transfer
the officer to a non-sensitive assignment, the
supervisor was held vicariously liable. Five separate
misconduct reports in a two week period coupled with

other warnings that the officer had been involved in a

41

series of acts demonstrating mental instability was too
much for the court to accept. The court held that the
supervisor was liable because he knew of the problems,
had the authority to assign or suspend, but neglected to
do so (Moon v. Winfield, 383 F. Supp. 31 (N.D. Ill.
1974)

If one assumes that a lack of representation of
assignment cases in this study indicates a lack of risk
of agency, then one is not recognizing the more likely
possibility that plaintiff's attorneys are filing cases
under other causes of action that are simply more
established in the law such as negligent failure to
train or negligent failure to supervise. The
administrator who ignores the assignment process in
formulating policy or evaluating procedure ignores the
fact that courts are very sympathetic to plaintiffs'
need for information about all factors which might have
relevance to the event in question. Rule 26(b) (1) of
the Federal Rules of Civil Procedure defines relevance
very loosely:

It is not ground for objection that the
information sought will be inadmissible
at the trial if the information sought
appears reasonably calculated to lead
to the discovery of admissible evidence.
This defiantly indicates that information about
the assignment process is discoverable which could

easily lead to the agency defending a series of

decisions leading up to the assignment of the officer in

42

question. Each decision questioned is one more
opportunity to establish unsound or negligent behavior.
So, although the case law in this study did not indicate
that assignment was a major concern, it would be unwise

to ignore the advice of the literature.

Entrustment

Much like the previous section on assignment, only one
entrustment case appeared in the sample of cases
studied. Unfortunately, even that one dealt with a
sheriff who entrusted a trustee with a fully equipped
and marked patrol vehicle. The trustee used the vehicle
to stop a female motorist and murdered her (Nishiyama v.
Dickson County, Tenn, 814 F.2d 277, 6th Cir. 1987).
The sheriff was held liable for the death under Section
1983.

This case might have been more useful if it had not
presented such clearly outrageous conduct on the part of
the sheriff. Had it been a police recruit or even a
civilian employee, there would have been opportunity to
examine what reasonable steps the sheriff could have
taken to prevent harm to the public from unauthorized
use of police equipment.

The Standards Manual of the Commission on

Accreditation for Law Enforcement Agencies makes no

43

mention of unofficial use of police equipment. Policies
vary from agency to agency regarding off duty use of
police equipment.

It would be safe to say that most police departments
allow, and many require, their officers to carry their
firearms off-duty. These firearms are often department
property. Similarly, many agencies allow their officers
to drive their patrol vehicles to and from work and some
may be used for personal errands. This practice is
often defended as a fringe benefit for the officer and a
bonus for the agency since it increases police
"visibility". There are some agencies which go so far
as to allow their officers to take off duty employment
as private security officers and authorize them to wear
their regular uniforms badges and firearms, carry a
department-issue radio, and drive their department-issue
fully equipped and marked police motorcycle. These
officers are also authorized to call on-duty police
officers for back-up, if necessary, via the regular
police radio net.

A number of instances of abuse and misconduct can be
found in the literature but the issues are generally
considered under the headings of supervision or
direction. There seems to be a sort of reverse "chicken
and egg" situation in the law. Until more cases are
brought with negligent entrustment as the cause of

action, there will not be many precedents to use as

44

authority. Conversely, until there are more cases on
the books to cite as precedents, plaintiff's attorneys
will not seek relief stating negligent entrustment as a
cause of action.

In the meantime, there is ample evidence in the
literature by del Carmen (1986) and others to indicate
that there is a substantial body of entrustment case law
not reflected in the sample used here. The reader is
cautioned to reorganize the limitations of this study
and to consider all of the case law along with the

relevant literature.

Supervision

Supervision was the third most frequently cited
cause of action in the cases examined. Fifty-seven of
the two hundred cases in the sample, or nearly thirty
percent, charged some form of negligent or inadequate
supervision. It is shown in Figure 4.2 that fifty-eight
percent of the supervision cases were decided in favor
of the plaintiff and forty-two percent were decided for

the government.

45

 

 

 

 

 

 

 

 

 

 

Issue Decided for Decided for
Plaintiff Government
No. % No. %
Selection 5 71% 2 29% .
Training 48 59% 34 41%
Assignment 0 0
Entrustment 1 100% 0
Supervision 33 58% 24 42%
Retention 9 90% 1 10%
Direction 42 59% 28 41%
Immunity 8 42% 11 58%
Force only 32 67% 16 33%

 

 

 

Figure 4.2 Distribution of Cases By Prevailing Party

There is probably no subject in police
administration, with the possible exception of policy
and direction, which has generated as much literature as
supervision. This is probably because experts from so
many different disciplines such as psychology, business
administration, political science and sociology, feel
comfortable giving advice on the subject.

There are many similarities between supervision of

46

police personnel and personnel in other occupations. It
is probably safe to say that there are more similarities
than differences. This position is fully supported by
the number of police executives with degrees in
business, psychology, management and industrial labor
relations, education, social work, urban planning, and
even criminal justice. Additionally,most government,
sponsor management and supervision seminars where the
administrators of virtually all agencies are encouraged,
if not required, to attend.

The commonality of certain aspects of supervision is
universally accepted (Kolfas, Stojkovic, and Kalinich,
1990). For the purposes of this study, however, it is
more useful to focus on the peculiarities rather than
the similarities. There is one aspect of law
enforcement and corrections supervision that is unique,
the fact that the employees of the agency supervised are
paid to exercise coercive power over other citizens.

If one is to conduct a meaningful examination of the
constitutional source of this coercive power, it is
useful to look beyond the Constitution itself and
consider the intent of the men who wrote it.

The framers of the constitution are often portrayed
in popular history as wise old men setting up a new
government reflecting the will of the people. Along the
same lines, many police officers and executives perceive

themselves as the constitutionally mandated enforcement

47

arm of the government which was established to protect
the citizens from the forces of evil, "the thin blue
line".

A more objective examination of history reveals the
authors of the Declaration of Independence who
substantially became the framers of the Constitution
"hardly represented the people of the colonies".
Instead, they were the most radical and revolutionary
inhabitants of the colonies drawn from various patriotic
groups (Felkenes, 1988). They were assembled several
times and the participants changed as some saw the
proposed actions as too radical and left while others
were drawn in by the new ideas. This group's first
order of business was not to draft the noble document
which would last through the ages, but to marshal
support for the revolution and provide for the common
defense. Once they had published enough papers and
given enough rallying speeches to feel confident that
enough of the people had been won over to finance a
revolution, the Declaration of Independence could be
written and published. This final rational
justification for going to war became the rallying point
for the revolution (Felkenes).

What is important for the criminal justice
professional to remember is that by the time the framers
got around to writing the 4,000 word constitution itself

and the 2,500 words that make up the amendments, they

48

had just fought a long and particularly bloody war to
rid themselves and their posterity of a heavy handed
government in which they had been denied meaningful
participation. They had looked at all other known forms
of government in the world and found none which did not
regularly allow the abuse of the governed. They looked
among themselves and found no one they were willing to
trust with the unfettered power of the government.
Their answer to the question of "What now?" was a
government that would always be at a disadvantage when
dealing with an individual citizen.
The Constitution was created to protect the citizen
from the government. The resulting system was based on
the presumption that the citizen was innocent or "the
good guy" while the government was the "bad guy" who
could not be trusted and must prove all accusations
beyond a reasonable doubt (Lieberman, 1968). As an
indication of the wariness displayed by the courts
toward the government, consider the following:
When a tort is made possible only through the
abuse of power granted by the government, then
the government should be held accountable for
the abuse, whether it is neglect or
intentional in character. Accordingly, we
reject the suggestion that the district is
immune from suit for the intentional torts of
its employees." Carter v. Carlson, 447 f. 2d
358 (D.C. Cir. 1971), rev'd on other grounds
sub nom.

The court emphasized its opinion by declaring that

Washington D.C. was "even more subject to liability"

than other cities because it was under complete

49

legislative jurisdiction of the 0.8. Congress. One can
easily infer, from this declaration, that of all actors
involved, the courts trust the government the least.

With this in mind, it is much easier to understand
why the court seems to treat the testifying police
officer as the "bad guy" in a criminal trial. The
officer represents the government so the court should be
wary of anything the officer says absent reliable proof
obtained in a lawful manner. The officer should not
look at an acquittal as a criminal "getting off on a
technicality." Such an occurrence should be perceived
as the government failing to provide the court with
adequate evidence, within the law, of criminal activity.
The judge who seems to be protecting the criminals is
doing exactly what the Constitution mandates. The jury
who seems to be always on the side of the accused is
behaving exactly as the framers hoped they would. They
are determining issues of fact based on their evaluation
of the conflicting testimony presented in court (Klein,
1986).

With regard to training, even the most fundamental
tasks of the police involve complex constitutional
issues. Although the Constitution is often touted as a
beautifully simple document which is, as former Vice
President of the United States, George M. Dallas, once
wrote that the Constitution was "plain and

intelligible, ][meant for the homebred, unsophisticated

50

understandings of our fellow citizens." The fact is that
the Constitution is very difficult to understand and
apply (Lieberman, 1968).

Every arrest made by an officer requires
interpretation of the statute, application of the
statute, exercising coercive force in some degree,
infringment on individual rights of the citizen
guaranteed by the Bill of Rights, documentation of the
events as they occurred, and presentation of the
evidence in a court of law. To take any average citizen
off the street and expect that citizen to be able to do
so under the myriad of condidions confronting modern law
enforcement is clearly ludicrous.i The courts recognize
this fact and hold all government agencies accountable
for preparing citizens to assume this complex role as
was discussed in the section dealing with training. The
courts also recognize that merely training officers is
not enough. As Lord Acton wrote "power tends to
corrupt, and absolute power tends to corrupt
absolutely." Granting police officers the power of
arrest, and the absolute power of lethal force in making
lawful arrests, is an enterprise not to be taken
lightly. Some sort of close supervision is clearly
indicated.

If one searches the sample cases for predominate
concepts in the sample cases on supervision where the

plaintiff prevailed, one finds knowledge and

51

responsibility (liability) as those most often
articulated. The oldest case to do so is Roberts v.
Williams, 456 F.2d 819 (5th Cir. 1972) This case stated
that supervisory officers are subject to suit if they
"knew or should have known" of problems, either actual
or potential, and failed to intervene. That same
year, in the 7th circuit, the idea of knowledge and

responsibility (duty) was expanded upon when that court

stated:

We believe it is clear one who is given the
badge of authority of a police officer may
not ignore the duty imposed by his office
and fail to stop other officers who
summarily punish a third person in his
presence or otherwise within his knowledge.
That responsibility obviously obtains when
the nonfeasor is a supervisory officer to
whose direction misfeasor officers are
committed. So too, the same responsibility
must exist as to nonsupervisory officers
who are present at the scene of such summary
punishment, for to hold otherwise would be
to insulate nonsupervisory officers from
liability for reasonably foreseeable
consequences of the neglect of their duty
to enforce laws and preserve the peace.

This holding places the responsibility for
supervision and corrective action for misconduct on the
supervisor as well as the supervised. The courts may
want justice to be "blind" but they clearly will not
tolerate blindness in justice system employees. Each
actor with the power to enforce the law is expected to

enforce the law in keeping with the 14th Amendment

52

requirement of "equal protection". The court went a
step further in protecting the citizen from the actual
harm caused by the abuse of police power. Rather than
merely requiring the police to take remedial action such
as repremanding or prosecuting an offending officer, the
court plainly stated where police officers have direct
knowledge that use of excessive force or police
brutality is happening, the officers have a duty to come
to the aid of the victim. Obviously this means to do
something at the time of the event, not after the fact
(Byrd v. Brishke, 466 F.2d 6, 7th Cir. 1972).

The following year, the Third Circuit used virtually
identical language to place officers in that
jurisdiction on notice as to their responsibility in
Curtis v. Everette, 849 F.2d 516 (3rd Cir. 1973) In
1979, the 7th Circuit revisited this issue in Hampton v.
Hanrahan 600 F.2d 600, 626 (7th Cir. 1979) but went even
farther in that case by explaining that knowledge of
such abuse of authority coupled with a failure to
intervene is enough to establish a cause of action for a
civil rights conspiracy. The court defined a concpiracy
as a:

combination of two or more persons acting

in concert to commin an unlawful act, or to
commit a lawful act by unlawful means, the
principal element of which is an agreement
between the parties ‘to inflict a wrong
against or injury upon another,‘ and ‘an
overt act that results in damage.‘ In order
to prove the existance of a civil conspiracy,

a plaintiff is not required to provide
direct evidence of the agreement between

53

the conspirators; ‘[c]ircumstantial
evidence may provide adequate proof of
conspiracy.‘ Hoffman-LaRoche, Inc. v.
Greenburg, 447 F. 2d 872, 875 (7th Cir.
1971). See also United States v. Varelli,
407 F.2d 735, 741-42 (7th Cir. 1969).
Absent the testimony of a coconspirator,
it is unlikely that direct evidence of a
conspiratorial agreement will exist.
Thus, the question whether an agreement
exists should not be taken from the jury
in a civil conspiracy case so long as
there is a possibility that the jury can
‘infer from the circumstances' [that the
alleged conspirators] had a ‘meeting of
the minds' and thus ‘reached an
understanding' to achieve the conspiracy's
objectives. A plaintiff seeking redress
need not prove that each participant in a
conspiracy knew the ‘exact limits of the
illegal plan or the identity of all the
participants therein.‘ [] An express
agreement among all the conspirators is
not a necessary element of a civil
conspiracy. The participants in the
conspiracy must share the general
conspiratorial objective, but they need
not know all the details ofthe plan
designed to achieve the objective or
possess the same motives for desiring

the intended conspiratorial result. To
demon-strate the existance of a
conspiratorial agreement, it simply must
be shown that there was a ‘single plan,‘
the essential nature and general scope of
which [was] known to each person who is to be held
responsible for its consequences.

The court went on to clarify that all police and
other persons who "planned or acted in concert to
deprive the plaintiff of his civil rights will be
subject to liability." Knowledge of abuse but failure to
take action is, in effect, helping to conceal the abuse
thereby aiding the abuser. This is not unlike the
requirement for all citizens with knowledge of a crime

to endeavor to prevent the commission of that crime,"or

54

having knowledge of its commission, to reveal it to the
proper authorities." (Black, 1968) (See also: Ware v,
Reed, 709 F.2d 345 (5th Cir. 1983)

Cases other than those in the sample have dealt
with failure to report a crime as follows: "To sustain a
conviction ...for misprison of a felony it was incumbent
on the government to prove beyond a reasonable doubt
(1) that ... the principal had committed and completed
the felony alleged ... (2) that the defendant had full
knowledge of that fact; (3) that he failed to notify
authorities; and (4) that he took affirmative steps to
conceal the crime of the principal." United States v.
Stuard, 566 F.2d 1, 22 CrL 2337 (6th Cir.1977), quoting
Neal v. United States 102 F.2d 643 (8th Cir. 1939)
Another 1979 case from the 10th Circuit stated that a
police chief may be held liable when he fails in his
"Duty to correct misconduct of which he has notice"
(McClelland v. Facteau, 610 F.2d 693)

To further demonstrate the courts sensitivity to the
idea of police conspiring against citizens, in Lenard
v. Argento, 699 F.2d 874 (7th Cir. 1983) a conspiracy
judgement was sustained against the police on the theory
that the defendant officers had worked in concert or
"conspired" to deprive the plaintiff of his civil rights
despite the fact that the same jury had held that the
plaintiff had not actually been beaten or otherwise

wrongfully treated.

55

In a Georgia case, the Federal District Court
reinforced the concept of supervisors requiring
supervision in McQurter v, City of Atlanta 572 F.Supp.
1401 (N.D. Ga. 1983) by
finding several supervisors in the chain of command
liable for the death of a victim who was choked with a
flashlight while on the ground with both his hands and
feet in mechanical restraints. Since they saw the
officer choke the victim and failed to intervene, they
were held liable. Further, the city and the
commissioner of public safety were held liable because
the supervisors had been negligently placed in a
supervisory position without being adequately trained in
the chokehold technique that was being used in the
field. Without such knowledge, the court reasoned,
adequate supervision was impossible. This is a case
where the concepts of negligent assignment, entrustment
and supervision are inextricably entwined.

Other cases in the sample require that the
administrator seek the knowledge related to misconduct
if he does not have it. He must investigate allegations
of misconduct regardless how they come to his attention.
In Marchese v. Lucas 578 F.2d 181 (6th Cir. 1985) the
sheriff was held liable for an award of $125,000 over
various beatings and other civil rights violations by
jail officers because no serious investigation had been

conducted when the allegations were made known to him

56

and his failure to investigate was seen as ratification
of the abuse. This is similar to a later case from New
York (Fiacco v. Rensselaer, 783 F.2d 319 (2nd Cir.
1986) where the court held the validity of claims by the
third party was not to be used to determine
admissibility, and that the chief of police, in that
case, had essentially conducted "only superficial
investigations" of previous complaints. In announcing
its opinion, the court cautioned that "Department
procedures should spell out the details for use of force
rather than simply directing officers to use whatever
force is reasonable and necessary." The court
reasoned further that at some point, at least, the city
had considered the supervision of police officers
important because it had in place general procedures
relating to the proper supervision of those officers.
But because it had declined to implement those
procedures, the city must be held liable. The court
also cited the police chief's track record of non-
investigation of complaints. The court instructed that
a jury could rightfully find that this sort of non-
investigation was, in effect, non-supervision.

Finally, The most point blank instruction the courts
have handed down on this subject comes from Byrd v.
Clark, 783 F.2d 1002 (11th Cir. 1986). There, the
court found the city and officers liable for the

injuries suffered by a female arrested for drunk driving

57

and beaten by officers while in custody. Citing
deficiencies in path policy and training, the court went
on to say of supervision:
If a police officer, whether supervisory or
not, fails or refuses to intervene when a
constitutional violation such as an unprovoked
beating takes place in his presence, the

officer is directly liable under section 1983.
(p. 1007)

There seems little need for further discussion on
the courts perception of the importance of supervision.
In light of previous statements of the court it seems
clear that authority will only be recognized by the
court if it is linked with constantly updated knowledge
of what others in authority are doing and a
responsibility to take action when others abuse their

authority.

irection

The literature on direction and promulgation of
policy is a large one. This study was not intended to
be a comprehensive analysis of it. Instead, it seems
more useful to apply some works most commonly available
to administrators to the cases cited here in an attempt
to reconcile any seeming inconsistencies between the
theory of the authorities and the decisions of the
courts.

In Barker and Carter's (1986) comprehensive book on

58

police misconduct, del Carmen gives the following

description of negligent failure to direct:

Negligent failure to direct means not
sufficiently telling the employee of the
specific requirements and proper limits

of the job to be performed. In one case
Ford v. Brier, 383 F. Supp. 31 N.D. Ill.
1974) the court refused to dismiss an
action for illegal entry, stating that it
could be the duty of a Police Chief to
issue written directives specifying the
conditions under which field officers can
make warrantless entries into residential
places. The court held that the
supervisor's failure to establish policies
and guidelines concerning the procurement
of search warrants and the execution of
various departmental operations made him
vicariously liable for the accidental
shooting death of a young girl by a police
officer. The best defense against
negligent failure to direct is a written
manual of policies and procedures for
departmental operations. The Manual must
be accurate, legally updated, and form the
basis for agency operations in theory and
practice. (p.317)

The cases sampled in this study strongly reinforce
the opinions expressed in the above quotation. Of the
cases reviewed, 35% (70) dealt with direction (See
Figure 4.2). Of those, 60% were decided in favor of
the plaintiff (See figure 4.2). It is not surprising
that the percentage is so close to the 58% found in the
supervision cases since the tasks of supervision and
direction are so closely related to one another.

As del Carmen pointed out in the above passage,

failure to direct is failure to adequately tell

59

subordinates to do or not do something. It seems
noteworthy that there is so much activity in the case
law involving direction. It would seem that police
administrators would be the most sensitive of all
administrators to the need for thoroughness and clarity
in directives. After all, the laws they are sworn to
enforce must constantly withstand the of tests of "void
for vagueness" (Gardner, 1989) and "overbreadth"
(Zwickler L Koota, 389 0.5. 241,250, asset. 391,396,
1967) It would seem logical that the directives which
control those who enforce the law should be held to at
least as high a standard.

The decisions in the sample seem to indicate that the
court is holding law enforcement agencies to just such a
standard. Directives, like the law need to be
promulgated before they can have any effect on behavior.
Many of the cases lost by police agencies cite "failure
to direct" as the error of the agency or its
administrators (Black v. Stevens, 662 F.2d 181, 3rd Cir.
1981) (Brandon v Holt, 469 0.8. 464, 105 S.Ct 873
(1985). In other words, if the officer is never
informed of exactly what is expected, the officer cannot
be held liable for violations of directives and the
attendant consequences any more than a normal citizen
could for violations of statutes.

Still, when someone suffers a loss as a result of

such violations, there must be a mechanism at law to

6O

redress that harm. That is the essence of Section 1983,
and the supervisor and/or the government entity will be
vicariously liable (Fletcher v. O'Donnell, 867 F.2d 791
3rd. Cir. 1989)(Owen v City of Independence Mo. 445 0.8.
622.,1980).

The court recognizes in several cases that it is
virtually impossible for any collection of directives to
encompass all contingencies which might possibly develop
in the course of an officer's shift. In Sherrod v.
Berry, the en banc court instructed "objective
reasonableness under the circumstances" was the proper
test for whether deviation from the directives was
proper, and that the jury must "stand in the shoes of
the officer at the time of the shooting" basing any
opinions on "what the officer knew at the time; not what
was learned after the fact." (827 F.2d 195, 7th Cir.
1987)

Something significant the court seems to key on is
the fact that direction takes many forms. Indeed, it
takes many names being referred to variously as policy
or custom (Monell v. Department of Social Services, 436
0.8. 658 , 1968), practice or acquiescence (Fletcher v.
O'Donnell, 867 F.2d 791, 3rd Cir. 1989), or even a
single decision which has been held to be policy if by
the right person (Pembaur v. City of Cincinnati, 475
0.8. 469, 106 S.Ct. 1292,1298. 1986).

At first glance, the cases seem inconsistent as to

61

who is in a position to be a policy maker; the 0.8.
Supreme Court ruled on the issue in City of St. Louis v.
Praprotnik. There the court settled not only who should
be classified as a policy maker, but who should do the
classification by stating:
And certainly there can be no justification for
giving a jury the discretion to determine which
officials are high enough in the government that
their actions can be said to represent a decision
by the government itself.
The court went on to state that it is state law which
will decide who is a policy maker. (108 S.Ct. 915.
1988)

Barker and Carter (1986) gathered works from a number
of authors from different backgrounds all of whom had
addressed the problem of police deviance. The
resultant anthology is helpful in finding commonality in
the suggestions of authorities with different
perspectives.

In comparing the dicta from case law with the Barker
and Carter book and other sources listed herein, the
reader will notice that there are several threads of
agreement winding their way through the literature.

If one were to weave those threads of agreement into

some rules governing the formulation and dissemination

of policy, they might look something like the following:

(1) that direction means telling employees what to do...

Brandon v. Holt, Pembaur v. City of Cincinnatti,

(2)

(3)

(4)

(5)

(6)

('7)

(8)

(9)

62

Dorsey v. City of Detroit
telling employees what not to do..

Black v. Stevens, Fletcher v. O'Donnell, Justice v.
Dennis

telling employees when they can do it..

Brower v. County of Inyo, Peraza v. Delamater, Smith
v. City of Fontana, Tennessee v. Garner,

telling employees when they cannot do it

Grandstaff v. City of Borger, Smith v. Jones, Leber
v. Smith

telling them how much they can do...

Jones v. Marshal, Spell v. McDaniel, Dunster v.
Metropolitan Dade County

telling them what will happen if they fail to
comply

Brandon v. Holt, City of Oklahoma City v. Tuttle,
telling them in accordance with the law ...

Pembaur v. City of Cincinnatti, Webster v. City of
Houston, Texas

following through on what you told them...and
City of Rensselaer v. Fiacco, Languirand v. Hayden
documenting that it was done.

Martin v. Georgia Department of Public Safety,
Strauss v. City of Chicago, Thomas v. City of Zion

(10) Doing whole process again and again.

Anderson v. Roberts, McKinnon v, City of Berwin,
McQurter v. City of Atlanta

With decisions addressing virtually every aspect of

direction and a thoroughly enormous literature on the

subject, both of which warn of liability for failure to

63

adequately direct it seems clear that the administrator

must aggressively address direction as a priority issue.

Retention

Referring, again, to Figure 4.2, one notices that
though retention is mentioned but 10 times, 9 of those
times it is counted on the side of the plaintiff. This
probably makes retention the best of the seven subjects
to address last since it is the one most likely to be
lost by the administrator. Why this is so will be
examined presently, however, it might be of value to
explore some of the literature regarding negligent
retention for a better understanding of what is at
issue.

Returning to del Carmen (as printed in Barker and
Carter, 1986)

Negligent retention means the failure to take
action against an employee in the form of
suspension, transfer, or terminations, when
such an employee has demonstrated
unsuitability for the job to a dangerous
degree. The test is: was the employee unfit
to be retained and did the supervisor know
or should have known of the unfitness? The
rule isthat a supervisor has an affirmative
duty to take all necessary and proper steps
to to discipline and or terminate a
subordinate who is obviously unfit for
service. This can be determinen either

from acts of prior gross misconduct or from
a series of of prior acts of lesser
misconduct indicating a pattern unfitness.

64

del Carmen cites Brancon v. Chapman, LR #10509 (W.D.
Tennessee 1981), which was not cited in this study, as
an example of the type of misconduct that amounts to
negligent retention. In that case an officer with a
reputation for excessive force and mental problems was
retained on the department despite the strong likelihood
that the director knew of his behavior. As a result,
the court held the director liable for injuries suffered
by a couple who was assaulted by the officer. In
instructing that the director should have done
everything possible to prevent the assault the court
clearly suggested that the burden was on the director to
know what was going on in his department and to
investigate every complaint thoroughly. The defense
against such a suit is to prove that everything possible
was done to prevent the misconduct.

Unfortunately, the obvious cure for negligent
retention is to fire the employee. This is often seen
as the hardest decision for police administrators to
make both psychologically and practically. Though
Justice Oliver Wendell Holms once wrote that no one "has
a constitutional right to be a policeman", he did so in
thecase of McAuliff v. New Bedford, 155 Mas. 216, 220
(1892), very nearly 100 years ago. Times have changed
considerably. The same Title VII which complicated the
selection process discussed earlier, can make the

dismissal of an employee a legal quagmire (Robbinette,

65

1987).

The fundamental problem in dismissing or reducing a
police officer is that such an action is universally
perceived as a punishment and a loss of a real and
valuable property right. This being the case, the
disciplined officer now moves from the position of agent
of the government to victim of government action. While
he may have been found liable for misconduct and
assessed a penalty by the court for his actions, that
same court will necessarily become his source of relief
from any sanction levied by his employer.

Many states such as California have formally adopted
the constitutional standard of due process for all
performance-related dismissals of public employees
(Skelley v. State Personnel Board, et al. 124 Cal Rptr.,
14). The several states each determine the degree to
which property interests attach to a job. In commenting
on the leading case of Bishop v. Wood 48 L. Ed. 2d 684
(1976), Schofield writes:

The ultimate significance of Bishop is
speculative, but it does seem to reflect
an approval by the court of the notion
that the ultimate control of personnel
relationships belongs with the state
government, and that the decision by a
State or local government to grant or
withhold tenure is entitled to special
deference by the federal courts. The
question of whether there is a property
interest is thus dependent on the rights

to continued employment that are created
by state or local law.

So even though there is no constitutional right to a

66

public job, once the probationary period is successfully
completed and any state mandated property interest
attaches, termination is tantamount to deprivation of
that property right which can only be accomplished
lawfully by strict adherence to substantive due process.

Such due process dismissal must stand the test of two
groups of questions those that examine the
administrators actions before dismissal, and those that
examine the manner of dismissal. The administrator must
answer the following questions:

Was the employee coached in a manner similar to
other employees in like positions? Was the employee
instructed in and counseled regarding any deficiencies
in performance? If so, was the employee given a
reasonable time period and ample opportunity to
demonstrate improvement? Were other options besides
dismissal explored? Does the preponderance of evidence
indicate an affirmative answer to all of these
questions? If dismissal was chosen, was the employee
given notice and adequate explanation? Was the employee
given an opportunity to rebut the allegations and to
challenge the decision? Were all steps accurately
documented? The ability to answer all of these
questions with a "yes" is an indication of a well
administered agency which will have little difficulty
from the courts as some of the following cases from this

study indicate.

67

In Pennsylvania v. Porter, 659 F.2d 306, a city
police officer had established a history of abusing
citizens with excessive force and verbal assaults.
After repeated complaints to all those named in the
suit, the officer, the chief of police, the mayor and
the city council were all held liable for injuries
suffered by citizens at the hands of the officer. Each
actor in the chain of command was held liable for
negligently retaining the actor and for failing to
correct the officer's behavior.

In Schaefer v. Wilcox, 676 F.8upp. 1092 (D. Utah)
Highway patrol officials were held liable for acting in
a grossly negligent manner for not adequately
"qualifying, hiring, training, supervising, and [for
negligently] retaining" an officer who stopped and
sexually assaulted female motorists.

Because of such gross negligence, the officials named
were not entitled to qualified immunity (See also
McKinnon v. City of Berwin, 75 F.2d 1383 7th Cir.
1984).

In Brandon v. Holt which was discussed earlier under
the headings of training, supervision, and direction,
one of the principle comments of the court in finding
for the plaintiff was that even though the officer was
known to be violently abusive, he was not dismissed
because the chief had a personal policy of not firing an

officer for brutality because he felt the dismissal

68

psychologically as a pattern of learned helplessness
(Parker Meier, and Monahan, 1989),

the courts clearly do not expect, nor will they tolerate
helplessness in administrators.

Clearly the 10 to 1 ratio against the police and the
abundant writing available on the subject, reflect a
critical need for all administrators to address
retention issues early on, rather than avoiding them

because of the inherent difficulties they represent.

CHAPTER 5

LEARNING THEORY AND USE OF FORCE POLICY

Since the three largest groups of data, training,
supervision, and direction, all deal with controlling
others in some manner, discussion of some basic theories
of learning and behavior as they apply to these topics

is appropriate.

Classical conditioning - A certain response can be
expected when a human being is subjected to a certain
stimulus. When a second non-relevant stimulus is
introduced coincidentally with the first stimulus, the
expected response can be evoked by the second stimulus

without the presence of the first. (Coleman, 1972)

Instrumental conditioning - Humans tend to repeat
behavior that is satisfying to them and to avoid
behavior that is not satisfying. B.F. Skinner (1953)
found that behavior can be influenced by subjecting a
person to stimuli that have satisfying results whenever
he shows the desired response. He also found that it is
not necessary to "reward" every desirable response in

order to achieve the desired results.

Gestalt theory - Learning occurs through insight.

The skills and attitudes acquired from previous

69

7O

experiences, cause the learner to interpret the learning
situation as more than a specific or isolated case.

Each new learning situation blends with the whole
pattern of experiences that has meaning for him
personally. Learning is a process whereby arranging and
rearranging past experiences, in relation to current
experiences, a person is able to make sense of the world

he or she perceives. (Fay, 1988)

Field theory - Similar to Gestalt theory, Field
theory suggests that the learning process is wholistic
in nature. That is, it is a result of the combined
influences of all internal and external forces acting on

the learner (Bigge, 1972)(Lewin, 1951).

5. Phenominological theory - Phenominological theory
places emphasis on individual perception. The learner
perceives the need to learn only as it relates to the
way he perceives his own environment. Of particular
interest to trainers is the tendency of learners to
"display great ingenuity in avoiding learning activities

which have no personal self-enhancement." (Rogers, 1947)

Even with this very brief description of basic
learning theories, it is obvious that the exact
mechanism of learning not fully understood. This

greatly complicates the administrator's job because it

71

leaves the administrator with no clear guidelines about
how to apply the theories presented to a program for
controlling the behavior of police personnel.
Identifying which theory to ascribe to involves
identifying the type of learner. As the variety of pre-
employment histories increases, so does the problem.
While there may be a grain of truth to the theory
that there are certain police "types" or
"personalities", it is more probable that police
officers come from an ever broadening cross-section of
humanity. Title VII, and other laws, were created to
achieve this very purpose. Zemke and Zemke (1981) have
reduced an incredibly large literature down to a size
and form much more useful for the purpose of this study.

The reader is reminded that the original ideas were
first developed and applied in the fields of adult
education and industrial training programs where
effectiveness means corporate survival. Still, there
seems no reason to believe that the basic ideas
expressed cannot be generalized to the police
environment as well.

Adults seek out learning experiences in order to cope
with specific life-change events. Marriage, divorce, a
new job, are all examples of such events. The literature
indicates that they cannot be threatened, coerced, or
tricked into learning something new. This should be of

interest to those agencies which use the "stress

72

academy" model where recruits are constantly kept in
fear of sanctions or dismissal for not performing well
on tests.

Learning experiences which adults seek out on their
own are those which they perceive as being the most
useful to them. If they do not see how a body of
knowledge will help them personally, they will not be
interested and may well resist it.

The more experienced (older) a learner becomes, the
less interested he is in general theory or survey
courses and the more interested in specific information
addressing specific problems. In other words,
experienced officers will not be interested in general
refresher classes but will be interested in those which
deal with the officer's own day to day problems. This
information counsels against the practice of "role call"
training for everyone in the department at one time,
suggesting, rather that specific groups be isolated
based on experience and rank rather than merely their
shift assignment.

Ideas and informationwhich conflict with what is
already accepted as "truth" will be integrated more
slowly than that which is consistent with the status
quo. Obviously this indicates that more time and effort
must be committed to teaching material representing a
departure from "the old way". It is not the complexity

of the information or technology which slows

73

assimilation, it is the perception of change from what
has always been. The "good guys" will readily accept
using computers to catch "bad guys", but they will
strongly resist simple information which changes the
identity of the "bad guys".

Adults prefer self-directed or self-paced learning
programs over typical group centered learning by a
margin of seven to one. For police officers, who seem
to be even more independent natured than the general
population (Wilson, 1974), it would seem that the
conventional classroom setting of most academies should
be supplanted by more small-group and one-on-one
instruction.

This would be more labor intensive for the agency but
might be more efficient and effective which, in turn,
could reduce the total time required to complete the
curriculum. Military training programs have been very
successful with self-paced "fast tract" programs where
entrance screening and performance requirements were
rigidly enforced.

Regardless of the media or format used to present
material, 80% of adult learners cited a need for more
"hands-on" application of the material presented. This
means that academies must move away from rote memory and
lecture, and incorporate more role playing and situation
analysis (Parker, Meier, and Monahan, 1989). The advent

of video cameras and interactive computer learning

74

programs make such training within the reach of
virtually all departments.

Adults, unlike children, bring a considerable life
experience into the classroom. Consequently they have
some basis for opinion on virtually any subject
presented. What is more, their self esteem and ego are
on the line each time their preconceived opinions are
put to the test. If the information is presented in
such a manner as to threaten a learner's image in front
of peers, the learner will avoid the threat by non-
participation, if not outright attack on the material
and the presenter.

Police training situations should give the trainee an
opportunity to develop or learn the preferred answer or
appropriate behavior by a variety of means before
exposing the trainee to a test situation in front of
peers. The pressure generated by a "stress learning
situation" with peer pressure as the stressor may be of
some value in weeding out some types of individuals who
cannot handle pressure, but it probably weeds out a lot
more who could have learned how given the chance.

The bottom line is that in the criminal justice
community's effort to document improved training, it has
often focused on that training which is the easiest to
document and quantify. Numbers of officers trained and
numbers of man-hours committed are much easier to

quantify than behaviors changed or lessons learned.

75

Unfortunately the error is not usually noticed until the
behavior resulting from the training is reviewed by the

courts and the causal link attached to the administrator

or the agency.

CHAPTER 6
SUMMARY AND CONCLUSIONS

§2Em1£1

Traditional attempts to improve the use of force
policies and procedures of criminal justice agencies
have used the opinions of various authorities from
different disciplines to guide the policy making
process. Though well intended, these attempts have
proven inadequate due to technical uncertainties within
the various disciplines as well as a lack of consensus
among the various authorities as to what strategies are
most effective at reducing injuries to all those
involved, and the litigation which may result.

Focusing on the behavior of the courts in use of
force cases provides data which could be used to more
accurately anticipate the decisions of those same courts
in potential litigation arising from policy decisions.

Data from the sample are fairly consistent with the
general opinions found in the literature, but since the
various authors arrived at their opinions from a medley
of perspectives, and for different reasons, it is useful
to document the opinions of the courts as the one point
where all of the different arguments must ultimately be
evaluated by a single trier of fact.

Although the literature tends to present the seven
subjects examined as generally equal in importance with

regard to liability, this was not reflected in data.

76

77

Assignment and entrustment were either not mentioned at
all, or only vaguely suggested as part of the more
general topic of supervision. The reader is cautioned
not to construe this as an indication of importance but,
rather, the result of the sampling method and the
behaviors of plaintiff's attorneys in selecting causes
of action under which to file suit. del Carmen (1986)
and others present numerous examples from the case law
which indicate the courts are as willing to find these
issues at least as important as the others mentioned in
this study.

Perhaps the most challenging facet of this study was
attempting to narrow the cases down to a single issue
for classification. Because the cases sampled often
dealt with more than one issue, this endeavor was soon
abandoned and cases were assigned more than one
classification. The result is reflected in the fact
that the sum of the cases listed under each category is
greater than the total number of cases in the sample.
In other words, total opinions rather than total cases
are reflected in Figure 4.1. Even with this
liberalization of the original scheme of classification,
some of the cases studied met none of the criteria for
inclusion with the original design of the study.

Because the study focused on appellate court
decisions, several of the cases only reflected the

discussion of issues which occasioned the appeal. If

78

that issue was immunity alone, as in Able v. Miller, 824
F.2d 1522 (7th Cir. 1987), dicta from the case often
left the reader with little of the information needed to
determine what sort of police behavior had actually
occasioned the original litigation.

Fifty of the cases dealt only with the issue of
excessive force. The court did not address whether any
other factors precipitated such use of force but,
instead dealt only with whether the force used was
constitutional.

Cases reflected an evolution in the thinking of the
courts. Earlier cases used a "due process" test to
determine whether civil rights had been violated, more
and more courts began to adopt the "objective
reasonableness" test of the Fourth Amendment. This
position was finally standardized in Tennessee v.
Garner, 471 0.8. 1 (1985) where the court held that all
use of force cases would be governed by the Fourth
Amendment. The justices supported and expanded this
holding in a police roadblock case Brower v. County of
Inyo ___0.8.___J 109 S.Ct. 1378 (1989).

Because of the number of cases which fell, by default
into this "force-only" category, the data was included
in the tables for comparison. It is interesting to note
that 68% (34) of the force-only cases were decided in
favor of the plaintiff. Examination of the opinions

seemed to indicate a temporal aspect to the trend of the

79

decisions. That, coupled with the previously noted
change in tests used by the court in determining

constitutionality of use of force cases, prompted a
reexamination of the cases with regard to sequence.

Figure 6.1 indicates how the cases were decided by

year.

8O

 

 

~Year Won by plaintiff Won by Government
1961 . . ..... 1 . ........... . ............ 0
1965 ........ 1 . ......................... 0
1968 ........ 2 ..................... . ..... 0
1970 ........ 2 ........................... 0
1971 ....... . 5 ......................... . 0
1972 ........ 3 ........................... 0
1973 ........ 3 ......................... . 0
1974 ........ 1 ............................ 1
1975 ........ 2 ........................... 1
1976 ........ 2 ............................ 1
1977 ........ 1 ........................... 0
1978 ........ 1 ........................... 0
1979 . ...... 2 . .......................... 0
1980 ........ 5 ........................... 0
1981 ........ 8 ........................... 2
1982 ........ 4 ........................... 0
1983 ........ 8 ........................... 5
1984 ........ 8 ........................... 7
1985 . ...... 20 .......................... 11
1986 ........ 8 ........................... 7
1987 ....... 17 .......................... 14
1988 ....... 11 .......................... 24
1989 ........ 7 ............... . ........... 4

 

 

 

Figure 6.1 Distribution of Cases by Year and Outcome

Clearly there has been a shift in the trend of decisions
from strongly favoring the plaintiff in years 1961
through 1982, to pulling about even in 1983 through
1987, and strongly favoring the defendant in 1988. This
would seem to indicate that the change in tests used by
the court in these cases has not disadvantaged the
police. An alternate explanation might be that police
agencies are getting better at defending themselves

against litigation but that determination is outside the

81

scope of this study.

Another factor of interest brought out by the data
was the apparent dissimilarity of the holdings in the
different circuits. To examine the results more
thoroughly and to more thoroughly understand any
differences, the cases were arranged according to
circuit. Lower court cases were included in the data
from the next higher court and the Supreme Court data
were presented as a separate category for comparison.
Figure 6.2 is the result, indicating that although the
activity levels vary from court to court, the holdings
indicate a fair amount of balance with a slight tendency

to favor the plaintiff.

82

 

 

~Cir. Won by plaintiff Won by Govt.
lst. . .......... 4 .......................... 3
2nd ............ . 8 ........................... 3
3rd ......... . 6 .......................... 1
4th ............. 8 .......................... 4
5th ............. 21 .......... . ............... 8
6th ............. 14 .......................... 8
7th ............. 13 ......................... 11
8th ............. 7 .......................... 7
9th . ............ 6 . ...................... . 5
10th ............. 6 .......................... 8
11th ............. 9 .......................... 5
D.C. ....... ..... 5 ......... . ..... . .......... 0
Supreme Court ... 18 ......................... 11

 

 

 

Figure 6.2 Distribution of Cases by Circuit.

This could be explained by the tendency for the weak or
frivolous cases to be screened out by motions early in
the process.

Notable exceptions to this are the Third, Fifth and
D.C. Circuits. Administrators might do well to be
especially proactive and vigilant in those circuits

since the courts seem to favor the plaintiff over

83

seventy percent of the time. Certainly there have been
cases won by the government in the D.C. Circuit, and
this sample is not presented as having been
scientifically selected. Still, when all of the cases
examined go in favor of the plaintiff in sharp contrast
to all other circuits, the police administrator would do
well to take the data into consideration when
formulating policy. Perhaps the court's warning in
Carter v. Carlson, 447 f. 2d 358 (D.C. Cir. 1971), is
worth repeating. The court stated that the City of
Washington D.C. was "even more subject to liability"
since it was under the near total supervision of
congress. The behavior of the court seems to be

consistent with that position.

Conclusions

Negligent selection was under emphasized in the
hiring process of many agencies involved in the sample
cases. If this can be generalized to the larger
population it is the obvious starting point for any
program to reduce liability risk. The key issue is
"forseeability" and the decisions reflected in this
study are thoroughly consistent with the recommendations
made in the AELE Workshop on Police Liability and the
Defense of Police Misconduct Complaints (Schmidt, 1982)
and others writing on the subject. Administrators must

take positive action to ensure the proper screening of

84

all potential employees despite the inconvenience
inherent in complying with Title VII.

Traditional patterns of selection such as hiring
former military personnel, with the assumption that the
military had already screened out unsuitables, cannot be
justified as adequate screening. The kind of an officer
an applicant wants to be is as important as wanting to
be one.

It is also clear that when a selection process is
challenged, the administrator will be hard pressed to
find support for inadequate policies and procedures
since the leading authors represented in the literature
seem to universally espouse more stringent selection

criteria and none were found in opposition.

Training must undergo the same type of evolution that
the decisions of courts have undergone if administrators
are to be successful in any attendant litigation.

Rather than "going by the numbers", providing only what
is required by law, training must reflect the current
objective reasonableness standard of the Fourth
Amendment. In practice, that means training must
reasonably reflect the needs of the job. It must be
relevant and it must be constantly updated to reflect
the changing needs of society and the law and it must,
likewise recognize the fact that other variables such as

peer pressure, emotion, lack of information, vague

85

orders, and memory lapses all work to nullify even the
most comprehensive training.

The area of training that has received the most
attention is, of course, firearms policy. Current
training programs reflect this concern by committing
inordinately large blocks of time to weapons training,
teaching officers "how to shoot".

Only recently have curricula been developed addressing
when to shoot.

Even these shoot/no-shoot courses err by repeatedly
placing the trainee in a situation where shooting is
generally the final outcome, then evaluating the
performance based on shots fired and hits scored.

The literature from training experts and adult
learning theorists consistently indicate that adults
under stress will do what they have been programed or
trained to do. If shooting is presented as the
ultimate resolution of any progressively deteriorating
situation, it should be no surprise that officers faced
with what appear to be "no win" situations reflexively
resort to shooting.

Rather than teaching recruits to shoot then sending
them through some sort of stress type shooting course,
they should be sent through the course unarmed with
training in deescalation, avoidance and violence
management. After developing and demonstrating

competence in handling potentially violent situations

86

without weapons they should be graduated to running the
course with weapons available on request, rather like
calling for a supervisor. The final stage would be
traversing the course while armed but receiving points
for deescalating situations while losing points for
using force or weapons.

Scoring of performance should reflect the court's
instructions in Tennessee v. Garner, and in Young v.
City of Killeen, Texas which require the officer to
consider: 1) The threat to the officer, 2) likelihood of
effectiveness.. 3) risk to third parties .. 4) and
alternatives available other than force.

Part of the course should include doing the paperwork
associated with discharging a firearm, answering to
internal affairs, and a mock trial if indicated by the
trainee's action. This type of training would reflect a
relevance to the use of force which is clearly lacking
most training programs.

Finally, all such training should be documented as to
its relevance and transference. In other words the
administrator must ask two basic questions about any

training: 1) Was it any good? and 2) Did it do any

good? No answer or an answer of no will be equally

damning in any litigation.

Assignment and entrustment were underrepresented for

the purposes of meaningful conclusions, however, mention

87

can be made of them as integral parts of the larger
subject of supervision. This should in no way lead the
reader to conclude that the court sees them as less
important. It is more likely that this result was

a reflection of the behaviors of attorneys who less

frequently cite them as causes of action.

Supgrvisioni,despite the complexity of the issue in
general, is perceived rather simply by the courts.
Fundamentally, authority is tied to responsibility so
completely that one cannot be considered without the
other. Since responsibility will always attach when
authority is granted, it is important for supervisors to
be aware that they are responsible for "knowing" and for
"acting".

Knowing, with regard to allegations of excessive
force, requires investigating, substantiating, and
evaluating all allegations of abuse. If the appellate
courts were unwilling to let a trial court judge dismiss
charges based on the credibility of the plaintiffs, they
can scarcely be expected to grant that power to a police
official (Byrd v. Brishke, 466 F.2d 6, 7th Cir. 1972).

The responsibility to act is an affirmative one. It
requires the supervisor to take action pro-actively as
well as reactively and remedially. The administrator
must be able to show the court that programs were in

place to prevent abuse, such as selection and training

88

programs; to stop abuse, such as close supervision and
surveillance; and to preclude its recurrence, as in
counseling, retraining, suspension, and dismissal.
Courts seem to see supervision as a chain and, despite
the strength of any of the other links, a failure in one
attaches liability to all.

A final note on this subject is that police
administrators are not the only ones entrusted with
authority and its attendant responsibility. All
officers must be made aware that where abuse of
authority is concerned, the courts see all officers as
supervisors, regardless of rank. Knowledge of any abuse
compels the officer to take affirmative action. Failure
to do so automatically attaches liability to all
officers who were aware (Ware v. Reed ,709 F.2d 345 5th

Cir. 1983).

Direction must be considered in all of its forms.
Since the courts have seen fit to recognize direction
variously as written directives, policies, procedures,
customs, habits, traditions, rules, procedures,
practices, systematic behaviors, and even single
decisions, the administrator must assume that anything
communicated by any supervisor or condoned by that
supervisor or ignored by that supervisor, could be
declared policy for the purposes of Section 1983.

This means that all endeavors to influence employees

89

must be consistent with the following rules for

directives just in case such endeavors are later held to

be directives:

(l)

(2)

(3)

Tell employees what to do clearly, completely, and
concisely.

(You will be accountable for what they do based on
what you said; not what you meant.)

Telling employees what not to do just as clearly,
completely and concisely,

(You will be held accountable for what they do
based on what they did not know.)

Tell employees when they can do it, clearly
describe circumstances and time frames. (Use
examples.)

(Complex directives will probably require training.
Obviously there is exposure for negligent failure
to train.)

(4) Tell employees when they cannot do it, (Same as

(5)

above)

Tell them how much they can do.

(Define degrees of force and the meaning of
reasonableness in the eyes of the court.
Perceptions of reasonableness may vary with the
officer and the situation but review of the
decisions will always be made in court.)

(6)

(7)

(8)

(9)

90

Tell them what will happen if they fail to comply.

(This not only demonstrates the relative seriousness

of the situation but protects the agency and
administrator if later sanctions are in order.)

Tell them in accordance with the law.

(Directives, in whatever form, must at least be
consistent with current law. That means statute as
well as case law. Ignoring developments in the
courts by adhering to old standards and rituals
invites disaster.)

Follow through on what you told them.

(Directives without follow-through are like
purchases without money. They may set things in
motion initially but credibility is soon lost.)

Document that all of the above was done.

(If it isn't on paper, it didn't happen; unless, of

course, it was something you said for which you are

being held liable. Consider the worst case scenario
in all statements made and put in writing

anything that might be problematic.)

(10) Repeat the whole process again and again.

(People go.» People come. People forget. People
change. Times change.‘ Any of these are sufficient
cause to start the process all over again. All of
these are regular events in any agency making constant
evaluation and update of directives mandatory.)

91

Retention. perhaps above all other subjects examined,
requires tough choices for the administrator. The
administrator could find himself in the unenviable
position of defending himself and the agency in a
Section 1983 suit resulting from a subordinate's
misconduct. Then, since he is acting in his official
capacity his actions are under color of law, he will be
defending himself and the agency for dismissing the
offending officer. The officer would now be the
plaintiff and have every advantage over the government
described earlier.

The administrator must document everything.
Instruction not documented is, for defense purposes,
lost. The same follows for attempts to counsel and
restrain the abusive officer. Policy is far too easy to
establish to afford the administrator the luxury of
being "a nice guy".

Expectations are placed on the administrator from two
directions. He is expected to protect the rights of
citizens to be free from abuse by officers, and he is
expected to respect the rights of officers to the
property rights attached to public employment. In
balancing the interests of the public against the
interests of the officer, the courts will generally

favor the public but the administrator remains at the

92

fulcrum carrying the weight of both.
In any case the administrator is expected to take
action consistent with the law. Failure to do so can be

seen as participating in any abuse.

Implications for Future Research

It became readily apparent, during the course of this
study, that it did not go far enough. Although the
behavioral trends of the courts, that were identified,
may be useful in evaluating policies and procedures, the
data must be immediately suspect for bias.

The sheer volume of information in the case law and
the fact that it is in a form which does not lend itself
to quantification, precluded working with a larger
sample or using more scientifically acceptable sampling
techniques.

Recently, however, advancements in computer and
communications technology have put law libraries on
compact disk (CD) and made the entire body of recorded
law accessible to personal computer operators through
commercial modem arrangements such as LEXIS and WESTLAW.

Currently, available programs enable the user to
search entire law libraries for cases with certain words

or phrases in a matter of minutes. The potential is

93

obvious, where this study required months of manually
searching for and reading case law then manually taking
notes and transcribing them into the data base for
analysis. The same operations could be completed at a
computer screen through a "cut and paste" operation
moving hundreds of pages worth of data in seconds.

Since even the limited scope of the instant study
produced what appear to be useful results, the
implication is that this study should be expanded upon
and conducted in other areas of the law. A circuit by
circuit, or state by state, analysis of those issues
still unsettled by the high court could be invaluable to
administrators formulating or reviewing policies and
procedures.

Examinations of volumes of cases over time could
identify trends enabling administrators to anticipate
changes in judicial behavior before falling victim to a
departure from past rulings. It is clear that new
technology necessitates new approaches to
administration. This exercise, if nothing else,
demonstrates that a lay person can access a considerable
amount of information about the law. The software
available to virtually all police administrators enables
them to research much more law and legal reasoning than
ever before. Consequently the words "knew or should
have known" take on a completely new meaning. Courts

will expect more and more from administrators in the way

94

of knowledge of the law. Those who recognize this as an
environmental change and adapt will survive; others

will not.

APPENDICES

APPENDIX A

TABLE OF CASES

CITATION AND CATEGORY

Appendix A

Cases and Categories

I
Able v. Miller, 824 F.2d 1522 (7th Cir. 1987)
(Won by officer)

F
Agee v. Hickman 490 F.2d 212 (8th Cir. 1974)
(Won by deputies)

F
Allee v. Medrano, 416 0.8. 802 1974)
(Won by citizen Plaintiff)

T, Is
Anderson v. Creighton, 107 S.Ct. 3034 (1987)
(Won by officer)

SU
Anderson v. Nosser 438 F.2d 183 (5th Cir. 1971)
(Won by citizen Plaintiff)

TSU
Anderson v. Roberts, 823 F.2d 235 (8th Cir. 1987)
(Won by citizen plaintiff, sheriff held liable)

D
Baker v. St. Luois Board of Police Commissioners, No.
83-2536 (8th Cir. 1984)

(won by defendant officers)

T

Basista v. Wier, 340 F.2d 74 (3rd Cir. 1965)

(Won by citizen plaintiff)

TSU .

Batista v Rodriruez, 702 F. 2d 393 (2nd Cir. 1983)
(Won by officers and city)

F
Bauer v. Norris, 713 F.2d 408 (8th Cir. 1983)
(Won by citizen Plaintiff)

T.
Estate of Belew by Belew v. Ruppert, 694 F.Supp 1214
(1988)

(Won by deputy)

95

96

F

Bell v. City of Milwaukie, 746 F.2d 1205, 1279 (7th Cir.
1989)

(Won by citizen plaintiff)

F

Bivins v. Six Unknown named.Agents of the Federal Bureau
of Narcotics

403 0.8. 388 (1971)

(Won by citizen Plaintiff)

D SU
Black v. Stevens, 662 F.2d 181 (3rd Cir. 1981)
(Won by citizen Plaintiff)

I
Bledsoe v. Garcia, 742 F.2d 1237 (10th Cir. 1984)
(Won by officer)

I Boswell v. Sherburne County, 849 F.2d 1117,(8th Cir.
1988) rehearing denied
(Won by citizen Plaintiff)

R SU

Brandon v. Chapman, Memphis District Court (W. D. Tenn.
1981)

(Won by citizen Plaintiff)

T R D 80
Brandon v. Holt, 469 0.8. 464, 105 S. Ct. 873 (1985)
(Won by citizen Plaintiff)

F,I
Brandenburg v Cureton, 882 F.2d 211 (6th Cir. 1989)
(won by officers)

T D

Brower v. County of Inyo, 0.8. , 109 S.Ct. 1378
(1989)

(Won by citizen Plaintiff)

T 80 D

Brown v. City of Clewiston, 848 F.2d 1534 (11th Cir.
1988)

(Won by city)

F
Brown v. Glossip, 878 F.2d 871 (5th Cir. 1989)
(Won by citizen plaintiff)

F
Brumfield v. Jones, 849 F.2d 152 (5th Cir. 1988)
(won by officers)

97

SU

Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) {LEADING
CASE}

(Won by citizen plaintiff)

SU
Byrd v. Clark, 783 F.2d 1002 (11th Cir. 1986).
(Won by citizen plaintiff)

D

Cameron v. City of Pontiac, Mich.,813 F.2d 782 (6th Cir.
1987)

(won by city)

T, SU

Carter v. Carlson, 447 f. 2d 358 (D.C. Cir. 1971),
rev'd on other grounds sub nom.

(Won by citizen plaintiff)

F

Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir.
1988)

(Garner not retroactive)

(Won by city)

SU
Carter v. Noble, 526 F.2d 677 (5th Cir. 1976)
(Won by citizen plaintiff)

F,I
Chathat v Smith 884 F.2d 980 (7th Cir. 1989)
(won by officer)

T

City of Canton, Ohio v. Harris, 108 S.Ct. 1105 (1988)
57 U.S.L.W 4271 (1989)

(won by city)

T D SU

City of Fayetteville N.C. v. Spell, 824 F.2d 1380 (4th
Cir 1988) cert. denied, 108 S.Ct. 752 (1988).

(Won by citizen plaintiff)

80 D

City of Los Angeles v. Heller, 0.8.
(1986)

(won by city)

.106 S.Ct. 2268

 

I
City of Newport v. Fact Concerts Inc. 453 0.8. 247
(1981) (Won by city)

98

T D

City of Oaklahoma City v. Tuttle, 471 0.8. 808, 105
S.Ct. 2427 (1985) (initially won by citizen plaintiff
against city only, reversed by Supreme Court)

D
City of Rensselaer v. Fiacco, 107 S.Ct. 1384 (1987)
(Won by citizen plaintiff)

T SU D

City of Shepherdsville v. Rymer, 107 S. Ct. 1369 (1987)
(Won by citizen plaintiff) (see Rymer v. Davis 754 F.2d
198)

D
City of St. Louis v. Praprotnik. 108 S.Ct. 915 (1988).
(Won by City)

T I (corr)
Clark v. Evans, 840 F.2d 876 (11th Cir. 1988)
(won by officer)

T
Courtney v. Reeves 635 F.2d 326 (5th Cir. 1981)
(Won by citizen Plaintiff)

F
Crawford v. Edmonson, 764 F.2d 479 (7th Cir. 1985).
(Won by officer)

T D
Curtis v. Everette, 849 F.2d 516 (3rd Cir. 1973)
(Won by citizen plaintiff)

T.
Daniels v. Williams, 474 0.8. 327, 106 S.Ct. 662 (1986)
(Won by officer)

T, D

Davis v. City of Ellensburg, 869 F.2d 1230 (9th Cir.
1989)

(Won by officers and city)

F
Davis v. Forrest, 768 F.2d 257 (8th Cir. 1985)
(Won by officer)

T
Davis v. Little, 851 F.2d 605 (2d Cir. 1988)
(Won by citizen plaintiff)

99

I

Davis v. Scherer, 468 0.8. 183, 197. 104 S.Ct. 3012
(1984)

(Won by officer)

T
Dell Fargo v. City of San Juan Bautista, 857 F.2d 638
(9th Cir. 1988) (won by city)

T

Dodd v. City of Norwich, 815 F. 2d 862 (2nd Cir. 1987)
827 F.2d 1 (87)

(Won by city)

D
Dorsey v. City of Detroit 858 F.2d 338 (6th Cir. 1988)
(won by city)

D

Dunster v. Metropolitan Dade County, 791 F.2d 1516 (11th
Cir. 1986)

(Won by county and officer)

F ,
Edward v. City of Philidelphia, 860 F.2d 568 (3d Cir.
1988) .

(Won by city)

80 D

Fiacco v. City of Rensselaer, N.Y., 783 F.2d 319 (2nd
Cir. 1986)

(won by citizen plaintiff; officers liable, city liable)

D
Fletcher v. O'Donnell, 867 F.2d 791 (3rd Cir. 1989)
(Won by citizen Plaintiff)

T D

Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988) (en
banc)

(won by officer)

T 80 D Get Case
Foulds v. Corley, 833 F.2d 52 (5th Cir. 1987)
(Won by citizen Plaintiff)

T SU
Fratiello v. Mancuso, 653, F Supp. 775. (DC RI 1987)
(Won by officer and city)

100

F
Garcia v. United States, 826 F. 2d 806 (9th Cir. 1987)
(Won by Govt)

F

Garrick v. City and County of Denver, 652 F.2d 969 (10th
Cir. 1981)

(Won by citizen Plaintiff)

I, F

Gilmer v. City of Atlanta, 774 F.2d 1495 (11th Cir.
1985)

(Won by citizen Plaintiff)

F
Grahm v. Connor, 0.8. ,109 S.Ct 1865 (1989)
(Won by citizen Plaintiff)

D R SU
Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.
1985) (Won by citizen Plaintiff)

T,SU,D
Greenburg v. Mynczywor, 667 F.8upp. 901 (D.N.H.) (1987)
(won-by city)

T D
Guider v. Smith, 403 N.W.2d 505 (Mich. App. 1987)
(won by citizen plaintiff)

T SU D
Gumz v. Morrissette, 772 F.2d 1395 (7th Cir. 1985)
(won by city)

F
Hagge v. Bauer, 827 F.2d 101 (7th Cir. 1987)
(Won by citizen Plaintiff) officer liable

T SU
Hand v. Dayton-Hudson 775 F.2d 757 (6th Cir. 1985)
(won by plaintiff) city liable

F
Hamilton v. Chaffin, 506 F.2d 904 (5th Cir. 1975)
(won by city and officers)

T D SU
Hampton v Hanrahan, 600 F.2d 600, 626 (7th Cir. 1979)
(Won by citizen Plaintiff)

SU
Heller v. Bushey, 759 F.2d 1371 (9th Cir. 1985)
(Won by citizen Plaintiff)

101

T
Heath v. Henning, 854 F.2d 6 (2nd Cir. 1988)
(won by plaintiff)

80 T
Hendrix v. Matlock, 872 F.2d 1273 (5th Cir.1986)
(won by city)

F
Hernandez v. City of Los Angeles, 624 F.2d 935. (9th
Cir. 1980)

(Won by citizen Plaintiff)

F

H.C. by Hewett v. Gerrard, 786 F.2d 1080 (11th Cir.
1986)

(Won by citizen Plaintiff) Supervisor personally and
officially liable.

T

Hinojosa v. City of Terrel, Texas, 834 F.2d 1223 (5th
Cir. 1988)

(won by city)

SU, T
Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir. 1986)
(Won by citizen Plaintiff)

T

Hopkins v. City of Laramie, Wyo., 730 F.2d 603 (10th
Cir. 1984) »

(Won by city)

F (corr)
Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir. 1978)
(Won by citizen Plaintiff)

F
Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989)
(won by citizen plaintiff)

SU, T
Jamison v. Shaw, 772 F.2d 1205 (5th Cir. 1985)
(Won by citizen Plaintiff)

F
Jenkens v. Averett, 424 F.2d 1228 (4th Cir. 1970)
(Won by citizen Plaintiff)

F (corr)
Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973)
(Won by citizen Plaintiff)

102

F
Johnson v. Moral, 843 F.2d 846 (5th Cir. 1988)
(won by officer)

D
Jones v. Marshall, 528 F.2d 132 (2nd Cir. 1975)
(won by Citizen plaintiff)

D

Justice v. Dennis, 834 F.2d 380 (4th Cir. 1987) (en
banc)

(won by city)

T SU D
Keller v. Truska, 694 F. Supp. (1384 E.D. Mo. 1988)
(won by officers and city)

D
Kerr v. City of Chicago, 424 F. 2d 1134 (7th Cir. 1970)
(Won by citizen Plaintiff)

T

Kibbe v. City of Springfield, 777 F.2d 801 (lst
Cir.1985)

(won by Plaintiff)

F
Kidd v. O'Neil, 774 F.2d 1252 (4th Cir. 1985)
(Won by citizen Plaintiff)

F (corr)
King v. Blankenship, 636 F.2d 70,72 (4th Cir. 1980)
(Won by citizen Plaintiff)

T
Klein v. Ryan, 847 F.2d 368 (7th Cir. 1988)
(won by officers)

F
Lamb V. Cartwright 524 F.2d 238, (5th Cir. 1975)
(Won by citizen Plaintiff)

T SE

Landrigan v. City of Warwick,628 F.2d 1512 (1st Cir.
1980)

(Won by citizen Plaintiff) officers liable; citys not

D
Languirand v. Hayden 717 F.2d 220 (5th Cir. 1983)
(Won by citizen Plaintiff) city; liable officers not

103

T D
Leber v. Smith, 773 F.2d 101 (6th Cir. 1985)
(Won by govt)

SU
Lenard v. Argento, 699 F.2d 874 (7th Cir. 1983)
(Won by plaintiff)

T D
LeSavage v. White, 755 F.2d 814 (11th Cir. 1985)
(Won by citizen Plaintiff)

T D
Lester v. City of Chicago, 830 F.2d 706 (7th Cir. 1987)
(Won by citizen Plaintiff)

F
Lewis v. Downs, 774 F.2d 711 (6th Cir. 1985)
(Won by citizen Plaintiff) officers liable

T SU

Maddox v. City of Los Angeles, 792 F. 2d. 1408 (9th Cir.
1986)
(won by city)

D .
Manning v. Jones 696 F.8upp 1231 S.D. Ind. (1988)
(Won by officers)

T,SU
Marchese v Lucas, 578 F.2d 181 (6th Cir. 1985)
(Won by citizen plaintiff)

F
Mark v. Caldwell, 754 F.2d 1260 (5th Cir. 1985)
(Won by officer)

I
Martin v.Dallas County, 822 F.2d 553 (5th Cir. 1987)
(Won by citizen Plaintiff)

SU D
Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988)
(Won by officer)

D

Martin v. Georgia Department of Public Safety, 108 S.Ct.
685 (1988)

(Won by police)

I, D, T
Martin v. Halhoyt, 830 F.2d 237, 262-63 D.C. Cir. 1987)
(Won by citizen Plaintiff)

104

D I
Martinez v. California, 444 0.8. 277 (1980)
(Won by citizen Plaintiff)

T 80 SE
Martinez v. Cordova, 676 F. Supp. 1068 (D.N.M. 1987)
(won by city)

T, 80
Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988)
(Won by citizen Plaintiff)

T SU R
McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979)
(Won by citizen Plaintiff)

T

McCrimmon v. Kane County, 606 F.8upp 216 (N.D. Ill.
1985)

(Won by citizen Plaintiff)

F
McDaniel v. Carroll, 457 F.2d 698 (6th Cir. 1972)
(Won by citizen Plaintiff)

F .
McFadden v. Sanchez, 710 F.2d 907 (2nd Cir. 1983)
(Won by citizen Plaintiff) Officers liable.

F
United States v. McKenzie, 768 F.2d 602 (5th Cir. 1985)
(Won by govt. for plainitff)

SE SU R

McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.
1984)

(Won by citizen Plaintiff)

SU

McQurter v. City of Atlanta Ga., 572 F.8upp. 1401 (N.D.
Ga. 1983)

(Won by citizen Plaintiff)

T
Milligan v. City of Newport News, 743 F.2d 227 (4th Cir.
1984)

(won by City)

D
Monell v. Dept of Social Services 436 0.8. 658 (1968)
(Won by citizen Plaintiff)

105

SU

Monitor v. City of Chicago, 653 F. Supp 1294 (N.D. Ill,
1987)

(won by city)

D
Monroe v. Pape, 365 0.8. 167 (1961)
(won by citizen plaintiff)

F

Morrell v. City of Picayune, 690 F.2d 469 (5th Cir.
1982)

(Won by citizen Plaintiff)

I
Morrison v. City of Batton Rouge, 761 F.2d 242 (5th Cir.
1985).

(Won by city)

F

Molton v. City of Cleveland, 839 F.2d 240 (6th Cir.
1988)

(Won by citizen Plaintiff)

E

Nishiyama v. Dickson County, Tenn, 814 F.2d 277 (6th
Cir. 1987)

(won by plaintiff)

O

Norris v. District of Columbia, 737 F.2d 1148 (D.C. Cir.
1984)

(Won by citizen Plaintiff)

T D

Oklahoma City v. Tuttle, 105 S.Ct 2427 (1985) cert.
denied, 106 S.Ct. 16 (1983).

(won by city)

D 80

O'Neal v. DeKalb County, Ga. , 850, F.2d 1119 (6th Cir.
1988)

(Won by county)

SU D
O'Neil v. Krzeminski, 839 F.2d 9 (2d Cir. 1988)
(Won by citizen Plaintiff)

D
Owen v. City of Independence Mo., 445 0.8. 622 (1980)
(Won by citizen Plaintiff)

106

T
Owens v. City of Atlanta, 780 F.2d 1564 1564 (11th Cir.
1985)

(won by city)

SE
Parker v. Williams, 862 F.2d 1471 (11th Cir.1989)
(won by plaintiff) city and sheriff liable

I
Patzer v. Burkett, 779 F.2d 1363 (8th Cir. 1985).
(Won by citizen Plaintiff)

T
Parker v. District of Columbia, 850 F.2d 708 (D.C. Cir.
1988)

(Won by citizen Plaintiff)

F
Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983)
(Won by officer)

F
Payne v. District of Columbia, 559 F.2d 809 D.C. (D.C.
Cir. 1977)

(Won by citizen Plaintiff)

SU D

Pembaur v. City of Cincinnati, 475 0.8. 469,106 S.ct.
1292,1298 (1986)

(Won by citizen Plaintiff)

SO, R
Pennsylvania v. Porter, 659 F.2d 306, (3rd Cir. 1981)
(Won by citizen Plaintiff)

D
Peraza v. Delamater, 722 F.2d 1455 (9th Cir. 1984)
(Won by citizen Plaintiff)

T, SU

Popham v. City of Kennesaw, 820 F.2.d 1570 (11th Cir.
1987)

(Won by citizen Plaintiff)

D SU

Powe v. City of Chicago, 664 F.2d 639, 651 (7th Cir.
1981)

(Won by citizen Plaintiff)

F
Price v. Baker 693 F.2d 952 (10th Cir. 1983)
(Won by sheriff)

107

D

Fruit v. City of Montgomery, Ala., 771 F.2d 1475 (11th
Cir. 1985)

(Won by citizen Plaintiff)

F
Raley v. Fraser, 747 F.2d 287 (5th Cir. 1984)
(Won by citizen Plaintiff) Officers liable

T
Rhode v. Denson, 776, F.2d 107 (5th Cir. 1985)
(Won by county)

80
Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598 (1976)
(won by city)

D

Roach v. City of Fredericktown, 693 F.8upp. 795
(E.D.Mo.1988)

(Won by city)

F
Roberts v. Marina, 656 F.2d 1112 (5th Cir. 1981)
(Won by citizen Plaintiff)

SU I
Roberts v. Williams (5th Cir. No. 28,829 April 1971)
(Won by citizen Plaintiff)

T
Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988)
(Won by officer)

T I
Robinson v. Bibb, 840 F.2d 349 (6th Cir. 1988).
(Won by citizen Plaintiff)

T
Rock v. McCoy, 663 F.2d 394 (10th Cir. 1985)
(Won by citizen Plaintiff)

SU D T
Rogers v. Rulo, 712 F.2d 363 (8th Cir. 1983)
(Won by officer)

T
Roose v. State 759 P.2d 478 (Wyo. 1988)
(won by officers)

108

SU

Rutherford v. City of Berkeley, 780 F.2d 1444 (9th
Cir.1985)

(Won by citizen Plaintiff)

F
Ryder v. City of Topeka, 814 F.2d 1412 (10th Cir. 1987)
(Won by city)

T
Rymer v. Davis, 775 F.2d 756 (6th Cir. 1985)
(Won by citizen Plaintiff)

T

Sager v. Coty of Woodland Park, 543 F.8upp. 282 (D.
Colo. 1982)

(Won by citizen Plaintiff)

T
Sampson v. Gilmere, U.S. , 106 S.Ct. 1993 (1986).
(Won by citizen Plaintiff)

T SU
Scarpa v. Murphy, 806, F.2d 326 (lst Cir. 1986)
(Won by city)

SE T SU R
Schaefer v. Wilcox 676 F.8upp 1092 (D. Utah 1987)
(won by plaintiff)

D
Screws v. 0.8. , 325 0.8. 91 (1945)
(Won by citizen Plaintiff)

T, D, SU

Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987) No. 85-
3151, August 22, 1988, 57 U.S.L.W. 2168 (September 27,
1988)

(Won by officer)

F
Shillingford v. Holmes, 634 F.2d 263 (5th Cir. 1981)
(Won by citizen Plaintiff)

T
Simms v. Adams, 537 F.2d 829 (5th Cir. 1976).
(Won by citizen Plaintiff)

T D '
Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987)
(Won by citizen Plaintiff)

109

T D
Smith v. Jones 497 F.2d 924, (6th Cir. 1973)
(Won by citizen Plaintiff)

O (corr)

Smith v. Wade, 103 S.Ct. 1625 (1983)

(Won by citizen Plaintiff) Prison, assault by other
inmates.

SU

Sostre v. McGinnis, 442 F.2d 178, 189-190, 205 n.51,
206-207 (2nd Cir. 1971)

(Won by citizen Plaintiff)

T D 80
Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987)
(Won by citizen Plaintiff) officers and city liable

D
Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985)
(Won by city)

F
Sumnerlin v. Edgar, 809 F.2d 1034 (4th Cir. 1987)
(Won by citizen Plaintiff)

T D
Tennessee v. Garner 471 0.8. 1, 105 S. Ct. 1694 (1985)
(Won by citizen Plaintiff)

T D

Thomas v. City of Zion, 665 F. Supp. 642 (N.D. Ill.
1987).

(Won by city)

I
Thorsted v. Kelly, 858 F.2d 571 (9th Cir. 1988)
(won by officer)

F
Trujillo v. Goodman, 825 F.2d 1453 (10th Cir 1987)
(Won by officer)

F
United States v. McQueeney, 674 F.2d 109 (1st Cir. 1982)
(Won by citizen Plaintiff)

F conspiracy
United States v. Messerlian, 832 F. 2d. 778 (3rd Cir.
1987)

(Won by citizen Plaintiff)

110

T D SU '
Vizbaras v. Prieber, 761 F.2d 1013 (4th Cir. 1985)

(Won by officer)

T SU
Varela v. Jones, 746 F.2d 1413 (10th Cir. 1984).
(won by city)

SE T SU
Vippolis v. Village of Haverstraw, 107 S.Ct. 1369 (1987)
(Won by city)

F
Waggoner v. Mosti, 792 F.2d 595 (6th Cir 1986)
(Won by citizen Plaintiff)

SU D
Ware v. Reed 709 F.2d 345 (5th Cir. 1983)
(Won by citizen Plaintiff)

T SU
Warren v. Lincoln, 816 F.2d 1254 (6th Cir.1987)
(Won by citizen Plaintiff)

D
Washington v. Starke, 855 F.2d 346 (6th Cir. 1988)
(Won by officer)

D
Webb v. Hiykell, 713 F.2d 405 (8th Cir. 1983)
(Won by citizen Plaintiff)

D
Webb v. Arresting Officers, 749 F.2d 500 (8th Cir. 1984)
(Won by citizen Plaintiff)

D

Webster v. City of Houston, 735 F.2d 838 (5th Cir.
1984)(en banc) Originally 689 F.2d 1220

(Won by citizen Plaintiff)

T
Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983)
(Won by citizen Plaintiff) city held liable.

R

Williams v. City of Chicago, 658 F. Supp 147 (N.D.
111.1987)

(Won by citizen Plaintiff)

D
Whitley v. Albers, 475 0.8. 312, 106 S. Ct. 1078 (1986)
(Won by officers)

111

T
Wierstak v. Heffernan, 789 F.2d 968 (1st Cir.1986)
(Won by citizen Plaintiff) city and officers liable

F
Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972)
(Won by citizen Plaintiff)

T
Wilson v. Beebe, 743 F.2d 342 (6th Cir. 1984)
(Won by citizen Plaintiff)

SU, D
Wing v. Britten, 748 F.2d 494 (8th Cir. 1984)
(Won by officer)

0
Wood v. Ostrander, 851 F.2d 1212 (9th Cir. 1988)
(Won by citizen Plaintiff)

T
Young v. City of Killeen Texas, 775 F.2d 1349 (5th Cir.
1985)

(Won by citizen Plaintiff)

R
Zangi v. Old Brookville, 752 F.2d 42 (2nd Cir. 1985)
(won by city)

APPENDIX B

TABLE OF CASES

BY YEAR DECIDED

112

Appendix B
Cases by Year Decided

D
Monroe v. Pape, 365 0.8. 167 (1961)
(won by citizen plaintiff)

T
Basista v. Wier, 340 F.2d 74 (3rd Cir. 1965)
(Won by citizen plaintiff)

D
Monell v. Dept of Social Services 436 0.8. 658 (1968)
(Won by citizen Plaintiff)

F
Terry v. Ohio, 329 0.8. 1 (1968)
(Won by citizen plaintiff)

F
Jenkens v. Averett, 424 F.2d 1228 (4th Cir. 1970)
(Won by citizen Plaintiff)

D
Kerr v. City of Chicago, 424 F. 2d 1134 (7th Cir. 1970)
(Won by citizen Plaintiff)

SU
Anderson v. Nosser 438 F.2d 183 (5th Cir. 1971)
(Won by citizen Plaintiff)

F

Bivins v. Six Unknown Named Agents of the Federal Bureau
of Narcotics

403 0.8. 388 (1971)

(Won by citizen Plaintiff)

T, SU

Carter v. Carlson, 447 f. 2d 358 (D.C. Cir. 1971),
rev'd on other grounds sub nom.

(Won by citizen plaintiff)

SU I
Roberts v. Williams (5th Cir. No. 28,829 April 1971)
(Won by citizen Plaintiff)

S

Sostre v. McGinnis, 442 F.2d 178, 189-190, 205 n.51,
206-207 (2nd Cir. 1971)

(Won by citizen Plaintiff)

80.
Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) {LEADING

113

CASE}
(Won by citizen plaintiff)

F
McDaniel v. Carroll, 457 F.2d 698 (6th Cir. 1972)
(Won by citizen Plaintiff)

F
Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972)
(Won by citizen Plaintiff)

T D
Curtis v. Everette, 849 F.2d 516 (3rd Cir. 1973)
(Won by citizen plaintiff)

F (corr)
Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973)
(Won by citizen Plaintiff)

T D
Smith v. Jones 497 F.2d 924, (6th Cir. 1973)
(Won by citizen Plaintiff)

F
Agee v. Hickman 490 F.2d 212 (8th Cir. 1974)
(Won by deputies) '

F
Allee v. Medrano, 416 0.8. 802 1974)
(Won by citizen Plaintiff)

F
Hamilton v. Chaffin, 506 F.2d 904 (5th Cir. 1975)
(won by city and officers)

D
Jones v. Marshall, 528 F.2d 132 (2nd Cir. 1975)
(won by Citizen plaintiff)

F
Lamb v. Cartwright 524 F.2d 238, (5th Cir. 1975)
(Won by citizen Plaintiff)

80
Carter v. Noble, 526 F.2d 677 (5th Cir. 1976)
(Won by citizen plaintiff)

SU
Rizzo v. Goode, 423 0.8. 362, 96 S. Ct. 598 (1976)
(won by city)

T
Simms v. Adams, 537 F.2d 829 (5th Cir. 1976).
(Won by citizen Plaintiff)

114

F .

Payne v. District of Columbia, 559 F.2d 809 D.C. (D.C.
Cir. 1977)

(Won by citizen Plaintiff)

F (corr)

Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir. 1978)
(Won by citizen Plaintiff)

TDSU

Hampton v Hanrahan, 600 F.2d 600, 626 (7th Cir. 1979)
(Won by citizen Plaintiff)

TSUR
McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979)
(Won by citizen Plaintiff)

F

Hernandez v. City of Los Angeles, 624 F.2d 935. (9th
Cir. 1980)

(Won by citizen Plaintiff)

F (corr)
King v. Blankenship, 636 F.2d 70,72 (4th Cir. 1980)
(Won by citizen Plaintiff) '

TSE

Landrigan v. City of Warwick,628 F.2d 1512 (lst Cir.
1980)

(Won by citizen Plaintiff) officers liable; citys not

Lyons v. City of Los Angeles, 615 F.2d 1243 (9th Cir.
1980)
(injunction against chokehold)

D I
Martinez v. California, 444 0.8. 277 (1980)
(Won by citizen Plaintiff)

D
Owen v. City of Independence Mo., 445 0.8. 622 (1980)
(Won by citizen Plaintiff)

DSU
Black v. Stevens, 662 F.2d 181 (3rd Cir. 1981)
(Won by citizen Plaintiff)

RSU
Brandon v. Chapman, Memphis District Court (W. D. Tenn.
1981)

(Won by citizen Plaintiff)

I
City of Newport v. Fact Concerts Inc. 453 0.8. 247

115

(1981) (Won by city)

T
Courtney v. Reeves 635 F.2d 326 (5th Cir. 1981)
(Won by citizen Plaintiff)

F

Garrick v. City and County of Denver, 652 F.2d 969 (10th
Cir. 1981)

(Won by citizen Plaintiff)

80, R
Pennsylvania v. Porter, 659 F.2d 306, (3rd Cir. 1981)
(Won by citizen Plaintiff)

D SU

Powe v. City of Chicago, 664 F.2d 639, 651 (7th Cir.
1981)

(Won by citizen Plaintiff)

F
Roberts v. Marino, 656 F.2d 1112 (5th Cir. 1981)
(Won by citizen Plaintiff)

F
Shillingford v. Holmes, 634 F.2d 263 (5th Cir. 1981)
(Won by citizen Plaintiff)

F

Morrell v. City of Picayune, 690 F.2d 469 (5th Cir.
1982)

(Won by citizen Plaintiff)

T

Sager v. Coty of Woodland Park, 543 F.8upp. 282 (D.
Colo. 1982)

(Won by citizen Plaintiff)

F
United States v. McQueeney, 674 F.2d 109 (1st Cir. 1982)
(Won by citizen Plaintiff)

T SU
Batista v Rodriruez, 702 F. 2d 393 (2nd Cir. 1983)
(Won by officers and city)

F
Bauer v. Norris, 713 F.2d 408 (8th Cir. 1983)
(Won by citizen Plaintiff)

D
Languirand v. Hayden 717 F.2d 220 (5th Cir. 1983)
(Won by citizen Plaintiff) city; liable officers not

116

$0
Lenard v. Argento, 699 F.2d 874 (7th Cir. 1983)
(Won by plaintiff)

F
McFadden v. Sanchez, 710 F.2d 907 (2nd Cir. 1983)
(Won by citizen Plaintiff) Officers liable.

T D

Oaklahoma City v. Tuttle, 105 S.Ct 2427 (1985) cert.
denied, 106 C.Ct. 16 (1983).

(won by city)

F
Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983)
(Won by officer)

F
Price v. Baker 693 F.2d 952 (10th Cir. 1983)
(Won by sheriff)

SU D T
Rogers v. Rulo, 712 F.2d 363 (8th Cir. 1983)
(Won by officer)

0 (corr)

Smith v. Wade, 103 S.Ct. 1625 (1983)

(Won by citizen Plaintiff) Prison, assault by other
inmates.

80 D
Ware v. Reed 709 F.2d 345 (5th Cir. 1983)
(Won by citizen Plaintiff)

D
Webb v. Hiykell, 713 F.2d 405 (8th Cir. 1983)
(Won by citizen Plaintiff)

T
Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983)
(Won by citizen Plaintiff) city held liable.

D

Baker v. St. Luois Board of Police Commissioners, No.
83-2536 (8th Cir. 1984)

(won by defendant officers)

I
Bledsoe v. Garcia, 742 F.2d 1237 (10th Cir. 1984)
(Won by officer)

I
Davis v. Scherer, 468 0.8. 183, 197. 104 S.Ct. 3012
(1984)

117

(Won by officer)

T

Hopkins v. City of Laramie, Wyo., 730 F.2d 603 (10th
Cir. 1984)

(Won by city)

D

Mary beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir.
1984)

(Won by citizen plaintiff)

SE SU R

McKinnon v. City of Berwyn, 750 F.2d 1383 (7th Cir.
1984)

(Won by citizen Plaintiff)

T

Milligan v. City of Newport News, 743 F.2d 227 (4th Cir.
1984)

(won by City)

0

Norris v. District of Columbia, 737 F.2d 1148 (D.C. Cir.
1984)

(Won by citizen Plaintiff)

D
Peraza v. Delameter, 722 F.2d 1455 (9th Cir. 1984)
(Won by citizen Plaintiff)

F
Raley v. Fraser, 747 F.2d 287 (5th Cir. 1984)
(Won by citizen Plaintiff) Officers liable

T SU
Varela v. Jones, 746 F.2d 1413 (10th Cir. 1984).
(won by city)

D
Webb v. Arresting Officers, 749 F.2d 500 (8th Cir. 1984)
(Won by citizen Plaintiff)

D

Webster v. City of Houston, 735 F.2d 838 (5th Cir.
1984)(en banc)

Originally 689 F.2d 1220

(Won by citizen Plaintiff)

T
Wilson v. Beebe, 743 F.2d 342 (6th Cir. 1984)
(Won by citizen Plaintiff)

50, D

118

Wing v. Britten, 748 F.2d 494 (8th Cir. 1984)
(Won by officer)

T R D SU
Brandon v. Bolt, 469 U.S. 464, 105 S. Ct. 873 (1985)
(Won by citizen Plaintiff)

T D

City of Oaklahoma City v. Tuttle, 471 0.8. 808, 105
S.Ct. 2427 (1985) (initially won by citizen plaintiff
against city only, reversed by Supreme Court)

F
Crawford v. Edmonson, 764 F.2d 479 (7th Cir. 1985).
(Won by officer)

F
Davis v. Forrest, 768 F.2d 257 (8th Cir. 1985)
(Won by officer)

I, F

Gilmer v. City of Atlanta, 774 F.2d 1495 (11th Cir.
1985)

(Won by citizen Plaintiff)

D R SU

Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.
1985) (Won by citizen Plaintiff)

T SU D
Gmmz v. Morrissette, 772 F.2d 1395 (7th Cir. 1985)
(won by city)

T SU
Hand v. Dayton-Hudson 775 F.2d 757 (6th Cir. 1985)
(won by plaintiff) city liable

SU
Heller v. Bushey, 759 F.2d 1371 (9th Cir. 1985)
(Won by citizen Plaintiff)

SU, T
Jamison v. Shaw, 772 F.2d 1205 (5th Cir. 1985)
(Won by citizen Plaintiff)

T

Kibbe v. City of Springfield, 777 F.2d 801 (lst
Cir.1985)

(won by Plaintiff)

F
Kidd v. O'Neil, 774 F.2d 1252 (4th Cir. 1985)
(Won by citizen Plaintiff)

119

T D
Leber v. Smith, 773 F.2d 101 (6th Cir. 1985)
(Won by govt)

TD
LeSavage v. White, 755 F.2d 814 (11th Cir. 1985)
(Won by citizen Plaintiff)

F
Lewis v. Downs, 774 F.2d 711 (6th Cir. 1985)
(Won by citizen Plaintiff) officers liable

T,SU

Marchese v Lucas, 578 F.2d 181 (6th Cir. 1985)
(Won by citizen plaintiff)

C

F
Mark v. Caldwell, 754 F.2d 1260 (5th Cir. 1985)
(Won by officer)

T

McCrimmon v. Kane County, 606 F.8upp 216 (N.D. Ill.
1985)

(Won by citizen Plaintiff)

I
Morrison v. City of Batton Rouge, 761 F.2d 242 (5th Cir.
1985).

(Won by city)

T

Owens v. City of Atlanta, 780 F.2d 1564 1564 (11th Cir.
1985)

(won by city)

I
Patzer v. Burkett, 779 F.2d 1363 (8th Cir. 1985).
(Won by citizen Plaintiff)

D

Pruit v. City of Montgomery, Ala., 771 F.2d 1475 (11th
Cir. 1985)

(Won by citizen Plaintiff)

T
Rhode v. Denson, 776, F.2d 107 (5th Cir. 1985)
(Won by county)

'1‘
Rock v. McCoy, 663 F.2d 394 (10th Cir. 1985)
(Won by citizen Plaintiff)

120

80

Rutherford v. City of Berkeley, 780 F.2d 1444 (9th
Cir.1985)

(Won by citizen Plaintiff)

T
Rmmer v. Davis, 775 F.2d 756 (6th Cir. 1985)
(Won by citizen Plaintiff)

D
Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985)
(Won by city)

T,D
Tennessee v. Garner 471 0.8. 1, 105 8. Ct. 1694 (1985)
(Won by citizen Plaintiff)

F
United States v. McKenzie, 768 F.2d 602 (5th Cir. 1985)
(won by govt for citizen plaintiff)

T D 80
Vizbaras v. Prieber, 761 F.2d 1013 (4th Cir. 1985)
(Won by officer)

T

Young v. City of Killeen Texas, 775 F.2d 1349 (5th Cir.
1985)

(Won by citizen Plaintiff)

R
Zangi v. Old Brookville, 752 F.2d 42 (2nd Cir. 1985)
(won by city)

80
Byrd v. Clark, 783 F.2d 1002 (11th Cir. 1986).
(Won by citizen plaintiff)

SU D

City of Los Angeles v. Heller, 0.8.
(1986)

(won by city)

,106 S.Ct. 2268

 

T.
Daniels v. Williams, 474 0.8. 327, 106 S.Ct. 662 (1986)
(Won by officer)

D

Dunster v. Metropolitan Dade County, 791 F.2d 1516 (11th
Cir. 1986)

(Won by county and officer)

SU D

121

Fiacco v. City of Rensselaer, N.Y., 783 F.2d 319 (2nd
Cir. 1986)
(won by citizen plaintiff; officers liable, city liable)

SU,T
Hendrix v. Matlock, 872 F.2d 1273 (5th Cir.1986)
(won by city)

F

H.C. by Hewett v. Gerrard, 786 F.2d 1080 (11th Cir.
1986)

(Won by citizen Plaintiff) Supervisor personally and
officially liable.

SU, T
Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir. 1986)
(Won by citizen Plaintiff)

T SU

Maddox v. City of Los Angeles, 792 F. 2d. 1408 (9th Cir.
1986)

(won by city)

80 D

Pembaur v. City of Cincinnati, 475 0.8. 469,106 S.ct.
1292,1298 (1986)

(Won by citizen Plaintiff)

T
Sampson v. Gilmere, U.S. , 106 S.Ct. 1993 (1986).
(Won by citizen Plaintiff)

T SU
Scarpa v. Murphy, 806, F.2d 326 (lst Cir. 1986)
(Won by city)

F
Waggoner v. Mosti, 792 F.2d 595 (6th Cir 1986)
(Won by citizen Plaintiff)

D
Whitley v. Albers, 475 U.S. 312, 106 S. Ct. 1078 (1986)
(Won by officers)

T
Wierstak v. Heffernan, 789 F.2d 968 (1st Cir.1986)
(Won by citizen Plaintiff) city and officers liable

I
Able v. Miller, 824 F.2d 1522 (7th Cir. 1987)
(Won by officer)

122

T, Is
Anderson v. Creighton, 107 S.Ct. 3034 (1987)
(Won by officer)

T SU
Anderson v. Roberts, 823 F.2d 235 (8th Cir. 1987)
(Won by citizen plaintiff, sheriff held liable)

D
Cameron v. City of Pontiac, Mich.,813 F.2d 782 (6th Cir.
1987)

(won by city)

D
City of Rensselaer v. Fiacco, 107 S.Ct. 1384 (1987)
(Won by citizen plaintiff)

T SU D

City of Shepherdsville v. Rymer, 107 S. Ct. 1369 (1987)
(Won by citizen plaintiff) (see Rymer v. Davis 754 F.2d
198) -

T

Dodd v. City of Norwich, 815 F. 2d 862 (2nd Cir. 1987)
827 F.2d 1 (87) ‘

(Won by city)

T 80 D Get Case
Foulds v. Corley, 833 F.2d 52 (5th Cir. 1987)
(Won by citizen Plaintiff)

T SU
Fratiello v. Mancuso, 653, F Supp. 775. (DC RI 1987)
(Won by officer and city)

{6}
F

Garcia v. United States, 826 F. 2d 806 (9th Cir. 1987)
(Won by Govt)

T D
Guider v. Smith, 403 N.W.2d 505 (Mich. App. 1987)
(won by citizen plaintiff)

F
Hagge v. Bauer, 827 F.2d 101 (7th Cir. 1987)
(Won by citizen Plaintiff) officer liable

D

Justice v. Dennis, 834 F.2d 380 (4th Cir. 1987) (en
banc)

(won by city)

123

T D
Lester v. City of Chicago, 830 F.2d 706 (7th Cir. 1987)
(Won by citizen Plaintiff)

I
Martin v.Dallas County, 822 F.2d 553 (5th Cir. 1987)
(Won by citizen Plaintiff)

I, D, T
Martin v. Halhoyt, 830 F.2d 237, 262-63 D.C. Cir. 1987)
(Won by citizen Plaintiff)

T 80 SE
Martinez v. Cordova, 676 F. Supp. 1068 (D.N.M. 1987)
(won by city)

SU

Monitor v. City of Chicago, 653 F. Supp 1294 (N.D. Ill,
1987)

(won by city)

E
Nishiyama v. Dickson County, Tenn, 814 F.2d 277 (6th
Cir. 1987)

(won by plaintiff)

T, SU

Popham v. City of Kennesaw, 820 F.2.d 1570 (11th Cir.
1987)

(Won by citizen Plaintiff)

F
Ryder v. City of Topeka, 814 F.2d 1412 (10th Cir. 1987)
(Won by city)

T, D, 80

Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987) No. 85-
3151, August 22, 1988, 57 U.S.L.W. 2168 (September 27,
1988)

(Won by officer)

T D
Smith v. City of Fontana, 818 F.2d 1411 (9th Cir. 1987)
(Won by citizen Plaintiff)

T D SU
Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987)
(Won by citizen Plaintiff) officers and city liable

F
Summerlin v. Edgar, 809 F.2d 1034 (4th Cir. 1987)
(Won by citizen Plaintiff)

124

T D '

Thomas v. City of Zion, 665 F. Supp. 642 (N.D. Ill.
1987).

(Won by city)

F
Trujillo v. Goodman, 825 F.2d 1453 (10th Cir 1987)
(Won by officer)

F conspiracy

United States v. Messerlian, 832 F. 2d. 778 (3rd Cir.
1987)

(Won by citizen Plaintiff)

SE T 80
Vippolis v. Village of Haverstraw, 107 S.Ct. 1369 (1987)
(Won by city)

T SU
Warren v. Lincoln, 816 F.2d 1254 (6th Cir.1987)
(Won by citizen Plaintiff)

R

Williams v. City of Chicago, 658 F. Supp 147 (N.D.
111.1987)

(Won by citizen Plaintiff)

T.
Estate of Belew by Belew v. Ruppert, 694 F.8upp 1214
(1988)

(Won by deputy)

I Boswell v. Sherburne County, 849 F.2d 1117,(8th Cir.
1988) rehearing denied
(Won by citizen Plaintiff)

T,SU,D

Brown v. City of Clewiston, 848 F.2d 1534 (11th Cir.
1988)

(Won by city)

F
Brumfield v. Jones, 849 F.2d 152 (5th Cir. 1988)
(won by officers)

F

Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir.
1988)

(Garner not retroactive)

(Won by city)

125

T

City of Canton, Ohio v. Harris, 108 S.Ct. 1105 (1988)
57 U.S.L.W 4271 (1989)

(won by city)

T D SU

City of Fayetteville N.C. v. Spell, 824 F.2d 1380 (4th
Cir 1988) cert. denied, 108 S.Ct. 752 (1988).

(Won by citizen plaintiff)

D .
City of St. Louis v. Praprotnik, 108 S.Ct. 915 (1988).
(Won by City)

T I (corr)
Clark v. Evans, 840 F.2d 876 (11th Cir. 1988)
(won by officer)

T
Davis v. Little, 851 F.2d 605 (2d Cir. 1988)
(Won by citizen plaintiff)

T
Dell Fargo v. City of San Juan Bautista, 857 F.2d 638
(9th Cir. 1988) (won by city)

D
Dorsey v. City of Detroit 858 F.2d 338 (6th Cir. 1988)
(won by city)

F

Edward v. City of Philidelphia, 860 F.2d 568 (3d Cir.
1988)

(Won by city)

T D

Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988) (en
banc)

(won by officer)

T
Heath v. Henning, 854 F.2d 6 (1988)
(won by plaintiff)

T

Hinojosa v. City of Terrel, Texas, 834 F.2d 1223 (5th
Cir. 1988)

(won by city)

F
Johnson v. Moral, 843 F.2d 846 (5th Cir. 1988)
(won by officer)

126

T SU D
Keller v. Truska, 694 F. Supp. (1384 E.D. Mo. 1988)
(won by officers and city)

T
Klein v. Ryan, 847 F.2d 368 (7th Cir. 1988)
(won by officers)

D
Manning v. Jones 696 F.8upp 1231 (1988)
(Won by officers)

80 D
Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988)
(Won by officer)

D
Martin v. Georgia Department of Public Safety, 108 S.Ct.
685 (1988)

(Won by police)

D I
Martinez v. California, 444 0.8. 277 (1980)
(Won by citizen Plaintiff)

T, SU
Meade v. Grubbs, 841 F.2d 1512 (10th Cir. 1988)
(Won by citizen Plaintiff)

F

Molton v. City of Cleveland, 839 F.2d 240 (6th Cir.
1988)

(Won by citizen Plaintiff)

D SU

O'Neal v. DeKalb County, Ga. , 850, F.2d 1119 (6th Cir.
1988)

(Won by county)

SU D
O'Neil v. ereminski, 839 F.2d 9 (2d Cir. 1988)
(Won by citizen Plaintiff)

T

Parker v. District of Columbia, 850 F.2d 708 (D.C. Cir.
1988)

(Won by citizen Plaintiff)

D

Roach v. City of Fredericktown, 693 F.8upp. 795
(E.D.Mo.1988)

(Won by city)

127

T
Robinette v. Barnes, 854 F.2d 909 (6th Cir. 1988)
(Won by officer)

T I
Robinson v. Bibb, 840 F.2d 349 (6th Cir. 1988).
(Won by citizen Plaintiff)

T
Roose v. State 759 P.2d 478 (Wyo. 1988)
(won by officers)

I
Thorsted v. Kelly, 858 F.2d 571 (9th Cir. 1988)
(won by officer)

D
Washington v. Starke, 855 F.2d 346 (6th Cir. 1988)
(Won by officer)

0
Wood v. Ostrander, 851 F.2d 1212 (9th Cir. 1988)
(Won by citizen Plaintiff)

F, ‘

Bell v. City of Milwaukie, 746 F.2d 1205, 1279 (7th Cir.
1989)

(Won by citizen plaintiff)

F,I
Brandenburg v Cureton, 882 F.2d 211 (6th Cir. 1989)
(won by officers)

T D

Brower v. County of Inyo, U.S. , 109 S.Ct. 1378
(1989)

(Won by citizen Plaintiff)

F a 4
Brown v. Glossip, 878 F.2d 871 (5th cir. 1989)
(won by citizen plaintiff)

F,I
Chathat v Smith 884 F.2d 980 (7th Cir. 1989)
(won by officer)

T, D

Davis v. City of Ellensburg, 869 F.2d 1230 (9th Cir.
1989)

(Won by officers and city)

D .
Fletcher v. O'Donnell, 867 F.2d 791 (3rd Cir. 1989)

128

(Won by citizen Plaintiff)

Grahm v. Connor, 0.8. ,109 S.Ct 1865 (1989)
(Won by citizen Plaintiff)

F
Jackson v. Crews, 873 F.2d 1105 (1989)

(won by citizen plaintiff)

SE
Parker v. Williams, 862 F.2d 1471 (11th Cir.1989)

(won by plaintiff) city and sheriff liable

"I7'il'iiiiiiifl'liiil“