Can innocent supervisors be held civilly liable for a subordinate’s wrongful use of deadly force? This was the issue facing the United States Court of Appeals for the Fifth Circuit in a case decided in April 2005. Troy Davis of North Richland Hills, TX was shot and killed by a SWAT team member during the first two seconds of the execution of a no-knock search and arrest warrant at Davis’s home. This operator, the first team member to enter the residence, claimed that Davis stood at the end of a hallway and pointed a gun at him. Other officers corroborated this account of the facts.
Davis’s estate sued the SWAT officer, as well as his supervisors, the chief of police, who was not present at the raid, and the SWAT team commander who was present on the outside of the home but did not actually participate in the raid. The plaintiffs claimed that the officer used excessive force, and that his superiors inadequately supervised him.
The plaintiffs further allege that before the raid, the supervisors knew the officer was, according to court documents, “prone to use excessive and/or deadly force without cause,” that he had “a reputation for displaying lewd and criminal behavior while on and off-duty” and that his “employment history branded and identified him as dysfunctional and unfit for police work.”
In support of these allegations, plaintiffs relied on the testimony of another SWAT operator and of a motorist concerning unrelated incidents, which had occurred before the raid. The former member of the SWAT team recounted that the officer in question had fired his weapon on three occasions during training exercises in scenarios that did not necessitate the firing of a weapon. Further testimony involved a SWAT team photograph was taken during a training exercise, in which the officer exposed himself.
Separately, a motorist who had been pulled over by the officer for a traffic violation complained to his supervisors that the officer behaved “like a psycho” and was “going to kill somebody.”
The two police supervisors moved for summary judgment on the basis of qualified immunity. The District Court for the Northern District of Texas denied the motion, holding that there was a genuine issue of material fact, whether the supervisors were deliberately indifferent to the officer’s alleged propensity to use excessive force, and whether their conduct was reasonable. The court also denied summary judgment to the officer on the excessive force claim but granted summary judgment to all defendants as to the remaining claims.
The two supervisors filed an appeal, claiming that plaintiffs did not overcome the bar of qualified immunity. Once that defense was claimed, the plaintiffs had to, according to the subsequent decision, “rebut the qualified immunity defense” by establishing that the official’s allegedly wrongful conduct violated clearly established law.
Under 28 U.S.C. 1983, a supervisory official cannot be held liable for the actions of a subordinate on any theory of vicarious liability. Instead, in this case, the plaintiff must show that the conduct of the supervisors denied Davis his constitutional rights. In a lawsuit based on failure to train or supervise, the court wrote, “The plaintiffs must show that, 1) the supervisor either failed to supervise or train the subordinate official, 2) a casual link exists between the failure to train or supervise and the violation of the plaintiff’s rights and, 3) the failure to train or supervise amounts to deliberate indifference.” The two supervisors won on the third prong of this test. The court noted that deliberate indifference requires “proof that a municipal actor disregarded a known or obvious consequence of his action” and “a showing of more than negligence or even gross negligence.” Inept, erroneous, ineffective or negligent actions are not considered deliberate indifference. In addition, plaintiffs “usually must demonstrate a pattern of violations and that the adequacy of training is obvious and obviously likely to result in a constitutional violation.”
The Court of Appeals found that evidence relied upon by plaintiffs was legally insufficient to support a finding of deliberate indifference. It determined that the officer’s behavior during the team photograph “demonstrated lack of judgment” and “crudity” but not past use of excessive force. Likewise, the traffic stop did not involve excessive force with a deadly weapon resulting in harm to a citizen.
In one interesting paragraph, the court noted, “[W]e hesitate in analyzing supervisory liability to place too much emphasis on mistakes during training. We are wary of creating incentives to conduct less training so as to minimize the chance that a subordinate will make a training mistake that can be used against the supervisors if that subordinate later makes a mistake in the course of duty.”
The court went on to compare this case to an earlier, unrelated case where supervisors were held liable for a subordinate’s acts. In that earlier case, the officer was rearmed and put back to work after he assaulted his wife, held hostages at gunpoint and shot two innocent civilians. In sharp contrast, the subject officer’s previous actions presented to pattern of excessive force against any third party.
In this case, the court concluded, in effect, that the officer’s training was on point, but that the officer simply did not completely absorb it. This perspective allowed the two supervisors to successfully claim qualified immunity.
Although this case is controlling only in the Fifth Circuit and nothing here should be taken as legal advice, it is reasonably clear that supervisors everywhere, however, should realize that this a fine-line distinction. The best course is to closely monitor officers who give any evidence of eccentricity during the course of their training.
Joseph and Diane Devanney are a husband-wife writing team. Diane S. Devanney is an attorney in Paoli, PA. She also teaches at a local college. Joseph Devanney’s practice is in Philadelphia. He is a former assistant district attorney. They can be reached at firstname.lastname@example.org.