In the current economic downturn, local and state governments have experienced a drop in tax revenue and a rejection of millage increase proposals. This has resulted in the laying off of employees and cutting of services. Many K-9 handlers have contacted me with this question: Will budget cuts excuse a failure to adequately train K-9 which could result in injury? For the following reasons, my professional opinion is ‘no.’
A civil suit based upon a failure to train police officers arises under 42 USC § 1983. This federal statute allows a person who is deprived of a clearly established federal constitutional right by a state actor to recover actual damages, punitive damages and actual attorney fees.
Although municipalities cannot be held vicariously liable for the acts of one of their police officers, they can be held directly liable for a failure to train those officers. Furthermore, “A finding of municipal liability does not depend automatically or necessarily on the liability of any police officer.” Fagan v City of Vineland, 22 F 3d 1283, 1292 (3rd Cir 1994). Simple negligence or carelessness will not satisfy this requirement. The failure to train must be the “moving force” behind the constitutional violation. It must be the result of a custom, policy or practice within the department that amounts to “deliberate indifference” to the constitutional rights of the injured party. The custom, policy, or practice need not be formalized or in writing, but must fairly represent an official policy. The failure to train must reflect a deliberate or conscious choice by the municipality. Supervisors can be held individually liable under this theory. As the U.S. Supreme Court explained, deliberate indifference may be found where “a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officer with specific tools to handle recurring situations.” Board of Commissioners of Bryan County v Brown, 520 U.S. 397, 409 (1997).
A department that deliberately cuts back on K-9 training is setting itself up for this type of claim if someone is injured as the result of police K-9 operations. While agencies may argue that they had no choice due to the reduction in revenue, they will have the burden of proving this is the case. In reality, the department may not have had to reduce K-9 training in order to achieve financial balance. Were government and other grants pursued? Did the department fairly analyze the effect of making cuts in other areas of the department? Did the department conduct a cost-benefit analysis of K-9 operations versus other departmental functions? Was the use of forfeiture funds considered? Did the department even consider public or private fundraising for K-9 operations? Deliberate indifference is the result of “‘[a] deliberate choice to follow a course of action [that] is made from among various alternatives' by city policymakers." Canton v Harris, 489 U.S. 378, 389 (1989).
I once had a K-9 handler approach me at a conference and ask me in confidence if reducing training days from four to two per month would be considered inadequate training. First, I do not believe four days per month is adequate training. However, if the supervisor thought four days per month was adequate how could he reduce it by half and claim that training time is still adequate?
Furthermore, agencies cannot argue that they could not anticipate the risks associated with reduced training. K-9 handling is a perishable skill for both handler and dog. The focus is on “the adequacy of the training program in relation to the tasks the employees must perform.” Canton, supra at 389-390. Since K-9 is also a use of force, it poses a known risk to the public if it is not maintained. Would the same agencies argue that they had the right to equip their officers with firearms, but could not afford to train or qualify them in the use of those firearms?
If the department truly lacks the funds necessary to maintain adequate training for its K-9 unit it is better off discontinuing this function altogether. Trying to operate a K-9 unit ‘on the cheap’ is an invitation to disaster for the dogs, the handlers, the department and the citizens it is designed to serve.
John M. Peters has been a trial attorney in Michigan for 29 years, representing police officers and law-enforcement agencies. He also founded K9 At Work, a consulting business for the K-9 community. Contact John at jmp@peterslaw.com.
