The Volokh Conspiracy
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Can the family of Philando Castile sue the St. Anthony, Minn., Police Department? There may be a strong case, based on failure properly to train the department's officers.
Let's start with the legal standards. The 14th Amendment provides: "nor shall any state deprive any person of life, liberty, or property, without due process of law." Because local governments derive all their powers from their state, the 14th Amendment also applies to local government agencies, such as the St. Anthony Police Department.
Section 5of the 14th Amendment grants Congress the "power to enforce, by appropriate legislation, the provisions of this article." Pursuant to Section 5, Congress has enacted civil rights statutes, including one creating a legal cause of action for violations of civil rights: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. … " 42 U.S. Code § 1983.
Castile's family has announced plans to sue Jeronimo Yanez, the officer who killed him, but I will address the question of when a police department can be sued. The leading case is City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). Citing the 1978 case Monell v. New York City Dept. of Social Services, 436 U.S. 658, the Canton court reiterated that "a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation."
The court set a high bar for failure-to-train cases: "We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Following statutory language and precedent, municipalities are liable under section 1983 for a "policy or custom." So "only where a failure to train reflects a 'deliberate' or 'conscious' choice by a municipality—a 'policy' as defined by our prior cases—can a city be liable for such a failure under § 1983."
The court went on: "It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in 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 policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury."
In a footnote, the court addressed a specific example of failure to train on deadly force:
For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), can be said to be "so obvious," that failure to do so could properly be characterized as "deliberate indifference" to constitutional rights.
It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are "deliberately indifferent" to the need.
The court set several limits to training-related lawsuits. First, merely proving inadequate training may not be sufficient, "for the officer's shortcomings may have resulted from factors other than a faulty training program." For example, "an otherwise sound program has occasionally been negligently administered." Nor is it sufficient merely to prove that the outcome would have been better if there had been more training: "Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable."
In short, "the city's failure to provide training to municipal employees … can only yield liability against a municipality where that city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants."
I do not know the training policies of the St. Anthony Police Department. But there is some evidence, beyond the Castile case, that these policies were woefully bad and that the city was on notice about the dangerous deficiency.
The evidence has been supplied by professor Joseph E. Olson, who is now an emeritus tax law professor at Mitchell Hamline Law School in St. Paul.
I have a good basis for assessing Olson's credibility and veracity. He and I have co-written three law review articles, most recently "Knives and the Second Amendment," 47 University of Michigan Journal of Law Reform 175 (2013) (also with Clayton Cramer). I have known Olson for about a quarter-century and have interacted with him at many conferences, seminars and other meetings. He served on the NRA Board of Directors in the 1990s and leads Minnesota's Gun Owners Civil Rights Alliance.
Olson has probably written more of the text of Minnesota gun laws than any other person. This includes the state's right-to-carry statute, the Minnesota Citizens' Personal Protection Act, which is one of the strongest such laws in the United States. I have no doubts about the accuracy or the veracity of his recollection of events.
Shortly after the Castile killing in July 2016, Olson disclosed his own encounter with the St. Anthony police. Olson's report was extensively covered by the Minnesota media and received national coverage from Courthouse News and ThinkProgress (a left-leaning national political commentary site). In 2013, Olson ran a red light and was pulled over by a St. Anthony officer. He does not recall who the officer was, but is sure that it was neither of the officers involved in the Castile incident.
"Instead of coming up to the door, he stops three feet behind my bumper and tries to conduct the interview through the rearview mirror," Olson said. "He can't see my hands. He can't see what's on my seat. He can't see anything that's in the car. And his voice has tremors of fear in it. I think to myself, 'Oh my god, I'm going to have to control this situation because he's not.'"
Olson said that is not a burden that should be put on citizens. He claims he was able to "control" the situation by effectively communicating with the officer, but at the same time he felt "scared."
"I didn't see the problem as [the police officer] so much as I thought it was a department problem," he said
"And he's standing three feet behind my bumper interviewing me through the outside rear-view mirror, which is really weird, and he sounds terrified. I have a Jeep Grand Cherokee that has tinted windows, so he can't see in the vehicle very well, he can't see my hands at all, and he conducts the entire interview through my rear-view mirror."
Olson said he "could've had somebody sitting in the back seat with a rifle" and the cop wouldn't have been able to tell. He added that the officer's unusual demeanor "made me afraid, and he was incompetent, and that made me more afraid."
The key problem, Olson explained to the Minneapolis Star-Tribune, was that the officer could not see Olson's hands:
"He couldn't see my hands. He couldn't see if anyone was in the car. I thought: This is dangerous for both of us."
Eventually the officer asked Olson for his license and registration, but he couldn't see Olson while he was digging in the glove box.
"I realized I could have had a grenade on the seat and he'd have no idea," Olson said.
In 2015, less than a year before the Castile killing, Olson met with the then-St. Anthony Police Chief John Ohl. He summarizes what he told the chief: "You have a training problem. You have a problem in your department. If you don't fix it, it's going to bite you."
"Instead, he said Ohl praised the officer. 'I realized he wasn't listening,' " Olson recalled.
In the Castile case, the officer did not conduct the stop through the rear-view mirror (as in the Olson stop), but it is clear that the officer was not positioned so that he could see Castile's hands at all times. Indeed, a key point in the prosecution's argument was that the officer should have simply ordered Castile to show his hands.
The dashcam video shows the Castile traffic stop changing the moment that Castile informed the officer that he had a gun. Unlike Olson, who wrote the Minnesota right-to-carry law, Castile may not have understood that in Minnesota, a lawful arms carrier has no duty to inform the police unless an officer specifically asks. Minn. Stats. 624.714, subd. 1b. Some other states do impose an affirmative duty of disclosure. Regardless, because carrying arms in lawful in every state and very common in almost all, every police officer must be trained in proper and safe methods for interacting with lawful carriers.
In short, Olson's report provides some evidence of a "policy or custom" of improper training, particularly for traffic stops, since any motorist may be armed (lawfully or unlawfully). Further, Olson's meeting with the chief put the municipality on notice about the improper training.
Other people may have different analysis. For example, the website LeftMN speculates that the officer in Olson's case ran Olson's license plate, realized that "he was dealing with the state's Alpha gun nut, in a darkened car, and he decided he should approach the old fool with a little circumspection."
In a civil rights lawsuit, there would be an opportunity for discovery about St. Anthony's training practices and other officers' encounters with lawfully armed citizens. Olson's experience at least suggests the possibility that the killing of Castile was not just the result of terrible decision-making by a single officer, but perhaps also the consequence of deliberate indifference by the municipality: poor training that inevitably endangered the safety of police and the public.