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Deliberate Indifference
What it means and its implications for public safety agencies and professionals

 

By Barbara Doepping    contact writer
Interact Business Group

When the lights wink out one by one in our town each night, and our citizens doze off into never-never land, I’d like to think that most of us do so under the assumption that our public safety personnel are looking out for our best interests while we sleep— policing our community and keeping us safe; at the ready for all fire and medical emergencies.   We rely on the training they receive in order to do their jobs, and to do them well, with that special commitment that it takes to put his/her life on the line for you and me and our families.

The term “Deliberate Indifference” has been used in a broad range of lawsuits—regarding violations of prisoner’s and children’s rights, medical issues, sexual harassment in schools, employment litigation and more.  However, for the purposes of this article we will use it to refer to public safety personnel issues, only.  Here at the  Interact Business Group, our focus is writing strategic business plans for public safety training centers, that once built, will provide a quality, state of the art facility in which to train. 
According to The 'Lectric Law Library's Lexicon (n.d.) . . . “Deliberate Indifference” is, “The conscious or reckless disregard of the consequences of one's acts or omissions.”  Or, per King (2005) “A pattern of constitutional violations by officers may indicate that a lack of proper training, rather than a one-time negligent administration of the training program or factors peculiar to the officer involved in a single incident, is responsible for the plaintiff's injury.  If a training program does not prevent constitutional violations and a pattern of injuries develops, officials charged with the responsibility of formulating policy for the agency may be put on notice that a new program is needed and a failure to address the problem may constitute deliberate indifference.  In the absence of a pattern of violations, deliberate indifference may be inferred from the policy makers' continued adherence to a training program that they knew or should have known would fail to prevent violations in usual or recurring situations.”

When it comes to police officers, according to Action Target (n.d., p. 27) “It is commonly estimated that actions for failure to train and failure to supervise are the two most common types of claims brought against police administrators.”  The article cites three ‘critical components’ that the court (refer to U.S. Supreme Court case City of Canton v. Harris, 1989) will have to determine in this type of litigation: 

• “Whether a constitutional right was violated”

• “Whether there was a failure to train or the training was inadequate”

• “Whether there was deliberate indifference to the need for training”

 

Per Title 42, U.S.C., [section] 1983, “In order for a department or municipality to be liable for failure to train its officers, there must be shown a deficiency in the training program, and that this deficiency is closely related to the injury alleged.”  Furthermore, “. . . the burden is on the plaintiff to show that the municipality had knowledge of a need for further training in a particular area.  Violations of an individual’s rights by an officer alone does not give rise to municipal liability, absent the requisite showing of deliberate indifference” (Action Target, n.d.).

Looking at it from the opposite angle, is it possible for an agency to be held accountable for “the single act of an officer”?  This question was answered “no” in Oklahoma City v. Tuttle, (1985) and applied in Pembauer v. City of Cincinnati (1986).  “This holding is important because it rejects liability based on a single incident, but allows for an exception: if the incident was caused by an existing, unconstitutional policy (Action Target, n.d.).  In the Pembauer case, the county prosecutor (aka the “official policymaker”) was held liable by the court for authorizing an illegal, forceful entry.

How does this relate to firefighters?  Take for instance the case of the Estate of Anthony Sean Phillips, et al v. the District of Columbia and Donald Edwards, where firefighters Anthony Phillips and Louis Matthews died in the line of duty (LODD) in 1999.  Two other firefighters suffered extreme injuries. The complaint of the part of plaintiffs’ argued that former Chief Donald Edwards, who was sued both officially and personally, “. . . was ‘deliberately indifferent’ to his duty to ensure that the department complied with its own standard operating procedures (SOPs) [regarding not fixing some previously identified safety problems] and that his conduct deprived the harmed firefighters of the ‘constitutionally protected liberty, interests in life, personal security and bodily integrity’” (Bennett, 2006, p. 1).

The fact that the Court of Appeals, who found that the chief could not be held liable for the deaths and injuries is significant on two accounts.  “First, it allows fire department post-line-of-duty death investigations to be thorough, blunt and written to ‘tell it the way it is’ without fear of personal liability for senior officers.  And second, municipal liability can be reduced if a corrective action plan is implemented, with specific safety improvements and costs well documented” (Bennett, 2006, p.1).

WHAT’S THE BOTTOM LINE?

It’s just a matter of time.  We don’t live in a perfect world, and sooner or later an unfortunate incident may occur in which an individual’s rights may have been violated (even to the extent of death), and a lawsuit filed on behalf of the plaintiff against a public agency for “Deliberate Indifference.” 

WHAT CAN BE DONE?

BE AWARE!      BE READY!      BE TRAINED!

Case after case has come before the courts on this issue, and the final consensus is that to cover your department, THERE ARE SEVERAL KEY POINTS NECESSARY TO SHOW PROOF OF TRAINING:

• “The training was necessary as validated by a task analysis”

• “The personnel conducting the training were, in fact, qualified to conduct such training”

• “The training did, in fact, take place and was properly conducted and documented”

• “The training was ‘state-of-the-art’ and up-to-date”

• “Adequate measures of mastery of the subject matter can be documented”

• “Those that did not satisfactorily ‘learn’ in the training session have received additional training and now have adequate mastery of the subject matter”

• “Close supervision exists to monitor and continually evaluate the trainee’s progress” (Hall, n.d.).

Or, as Whitney Young Jr., (African American Civil Rights Leader) said,

 “It is better to be prepared for an opportunity and not have one
than to have an opportunity and not be prepared.”

ARE YOU AND YOUR DEPARTMENT READY?
Please refer to the links and references provided for further information.  Know also that this article is not intended to be a legal explanation of “Deliberate Indifference,” but rather an alert to research the topic further, as well as to understand how it may affect a training department's SOPs.

References

Action Target. (n.d.). MFTASRD Manual
Bennett, L.T., (2006 September/October), Court decision protects officers from personal liability, (1). National Fire and Rescue Magazine. Retrieved May 8, 2009, from http://www.nfrmag.com/home.php?id=119&cid=4&article_id=495
Hall, J.C., (n.d.) FBI law enforcement bulletin. In MFTASRD Manual (p. 30). Retrieved May 13, 2009, from Action Target Seminar Manual CD.
King, Martin J. (2005, October 1). “Deliberate indifference” liability for failure to train. The Free Library. (2005). Retrieved May 13, 2009 from http://www.thefreelibrary.com/%22Deliberate+indifference%22:+liability+for+failure+to+train-a0139177099
The 'Lectric Law Library's Lexicon (n.d.) [Electronic version]. Retrieved May 8, 2009, from http://www.lectlaw.com/def/d037.htm

 

Links

http://www.nrahq.org/law/index.asp
http://www.iml.org/dbs/imllegal/dyncat.cfm?catid=1493
http://www.law.cornell.edu/supct/html/95-1100.ZD.html