By Expert Gary W. DeLand
According to the U.S. Supreme Court, “Prison and jail officials have qualified immunity as a defense against personal liability when they act with good faith.” Procunier v. Navarette, 434 U.S. 555 (1978). Qualified immunity is a legal principle which provides that, “[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” And, what should a reasonable official know? ” If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 819 (1982). It is clear then that the U.S. Supreme Court expects that Sheriffs and their subordinates understand the rights of prisoners and the other law that governs their conduct to protect against violations of the clearly established rights of prisoners.
Given the potential for loss of the good-faith qualified-immunity defense as a result of violations of clearly-established prisoner rights, it is reasonable to conclude that Sheriffs should have a basic understanding of the laws involving the operation and management of the jail. In all but the smallest jails, Sheriffs spend limited time involved in the jail operation. As a general rule, Sheriffs must delegate those functions to others. While Sheriffs should understand the laws relating to running a jail, jail officials must develop a reasonable understanding of corrections law. My experience with jails around the U.S. has taught me that there is a wide, wide range of levels of training in the nation’s jails. Unfortunately, the most litigious persons in the U.S. are the prisoners confined in jails and prisons. Prior to the enactment into law of the Prisoner Litigation Reform Act of 1995, prisoners were responsible for between 20 and 25 percent of all suits file in the federal courts.
The good news is that in the three-plus decades since I started to work in the Salt Lake County Jail, I have observed a dramatic improvement in the quality, amount, and value of training provided to jail officers across the U.S. I have been privileged to witness the fledgling training efforts advance from very basic, content-limited, and often-parochial curricula to comprehensive, well-designed programs featuring written course objectives and lesson outlines, testing, certified instructors, and utilization of multiple training methods. Training has advanced from simply training staff on how to do a few basic tasks to a curriculum including security procedures, corrections law, ethics, codes of conduct, staff interaction with prisoners, and many other topics essential to the humane and constitutional incarceration of convicted and accused persons in the highly litigious corrections environment.
Although major advances have been made in corrections training, plaintiffs’ attorneys continue to routinely add claims to suits against corrections officials alleging that the training provided to corrections officers is inadequate. They then assert that these inadequacies were the proximate cause of the constitutional harms allegedly suffered by the prisoner plaintiffs. It is rare that the claims made by plaintiffs are based on even the most rudimentary evaluation of the defendant’s training program. Often, the claims essentially amount to little more than a conclusion that since something went wrong, staff members must have been untrained or inadequately trained. In some cases, plaintiffs’ experts may have actually reviewed the formal training offered. However, even when there has been a review of the training and the reviewer has determined the training was inadequate, such evaluations tend to be cursory and the subsequent opinions very subjective.
The Culpability Standard for Litigating Training Issues is Deliberate Indifference
It is not possible, regardless of the level of training to ensure that no harm will ever be suffered by a prisoner; however, not every harm that befalls a prisoner states a constitutional cause of action. According to the Supreme Court, “It is obduracy and wantonness, not inadvertence or error in good faith” that creates the constitutional violation.” Wilson v. Seiter, 111 S.Ct. 2321, 2324 (1991), quoting, Whitley v. Albers, 475 U.S. 312, 319 (1986). Regarding training-related liability, the Supreme Court ruled that officials “can be found liable under § 1983 only where the [jail] itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983.” City of Canton v. Harris 489 U.S. 378, 385 (1989), citing, Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). “It is only when the ‘execution of the government’s policy or custom . . . inflicts the injury’ that the municipality may be held liable under s 1983.” Springfield v. Kibbe, 480 U.S. 257, 267 (1987) (O’CONNOR, J., dissenting). “‘[L]iability under § 1983 attaches where–and only where–a deliberate choice to follow a course of action is made from among various alternatives’ by . . . policymakers.” City of Canton v. Harris 489 U.S. 378, 389 (1989), quoting, Pembaur v. Cincinnati, 475 U.S. 469, 483-484 (1986) (plurality decision).
As an aid to evaluating whether training meets constitutionally requirements, guidance has been provided the Supreme Court. For officials to be liable, plaintiffs must demonstrate that jail officials were deliberately indifferent. In the federal court the standard for culpability is not negligence or even gross negligence, instead plaintiffs must prove the existence of a policy of deliberate indifference to essential training needs. Only where agency policies are the moving force behind the constitutional violation and where the failure to train corrections officers in a relevant respect evidences a deliberate indifference to the rights of prisoners can such a shortcoming be properly thought of as a “policy or custom” that is actionable under s 1983. City of Canton v. Harris 489 U.S. 378, 389 (1989).
- “[T]he 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.” City of Canton v. Harris 489 U.S. 378, 388 (1989).
- “The issue . . . is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent ‘[the agency’s] policy.’” City of Canton v. Harris 489 U.S. 378, 390 (1989).
- “Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by [corrections officials]–a “policy” as defined by our prior cases–can a city [or county or corrections officials] be liable for such a failure under § 1983.” City of Canton v. Harris 489 U.S. 378, 389 (1989).
I have developed training programs for various jurisdictions across the U.S. (including those that I managed) and for the Iraqi Correctional Services. That experience has convinced me that it is most unrealistic to believe that any training program has ever been developed that cannot be labeled or criticized as “inadequate,” “flawed,” or “unconstitutional” by individual critics. Despite such claims or criticisms, I would submit that it takes much more than a conclusory pronouncement by a plaintiff or his attorney or his expert to establish that a Sheriff’s training amounts to a policy of deliberate indifference. On the other hand, if Sheriffs or jail officials have a policy or practice of ignoring training which is obviously necessary to protect the rights and/or safety of prisoners and if that inadequate training can be shown to have caused the requisite level of harm to a prisoner, the responsible officials may be vulnerable to claims of deliberate indifference.
Providing Adequate Jail Training
No training system can achieve absolute perfection. Training can, however, with a reasonable effort, meet essential training requirements. It is the adequacy of the training program to reasonably ensure that staff have a working knowledge of their duties, responsibilities, and authority–particularly those duties which relate to the safety and constitutional rights of prisoners–not merely some misconduct or error by a staff member that must be considered in determining whether officers have been adequately trained. Officials can enhance the strength of their training to withstand deliberate indifference claims by tailoring training to the specific tasks and responsibilities of various posts, positions, and persons. Not all officers require identical training.
Officials should provide training to individual staff members which is relevant to their specific duties and responsibilities. This will reasonably ensure that officials are better able to defend training policies than will those officials who rely on a one-size-fits-all approach to training. Requiring officers to attend training which is not related to their actual responsibilities may not invalidate the training program (especially if they also receive the training critical to properly working assigned posts), but it may waste both training resources and staff time. Of course, since the time available to training officers is finite, irrelevant training may in some cases result in inadequate time and resources to provide staff with critical training needs.
Developing a Training Plan
To decrease Sheriffs’ and jail officials’ vulnerability to deliberate indifference claims, the minimal training requirements for each post or category of posts should be identified and implemented by developing a written plan or strategy for training jail officers. Is an formal training plan absolutely necessary to provide deliberate-indifference proof training? It is not; however, a haphazard training approach is less likely to produce an adequate training outcome for staff. The more thought and planning that officials put into the delivery of training, the more likely that the program will be vulnerable in prisoner filed litigation. The Supreme Court addressed the usefulness of customizing or adapting training to the different functions and responsibilities of the officers being trained, suggesting that it could 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 . . . can reasonably be said to have been deliberately indifferent to the need.” City of Canton v. Harris 489 U.S. 378, 390 (1989).
Training is not, however, an exact science which comes with a guarantee of flawless content and presentation; however, training can and should provide direction, instruction, guidance, and skills to jail officials at all levels to help them to understand and implement their duties and responsibilities and to be cognizant of the need protect the rights and safety of prisoners. There is one way to design a training program and even the most outstanding training programs will vary in their structure and in the value they provide to individual staff members.
The value of training is, of course, also dependent on the cognitive and other capabilities of individual officers, and on the attention, motivation, and understanding of trainees. It is also important to realize that even the best trained and directed corrections staff members may make mistakes or otherwise fail to execute their duties exactly as required. From one jurisdiction to another, training programs may vary in content, duration, quality, and effectiveness. While different training officials may have different philosophies and methods for conducting training and developing needed skills, there is no best way to conduct training. So long as that training provides instruction in those areas that the officials know to a moral certainty will be needed by corrections officers to protect the rights and safety of prisoners and to impart clearly established legal requirements, the training should be well above any level that could establish deliberate indifference. City of Canton v. Harris 489 U.S. 378, 390, n. 10 (1989).
Training Cannot Guarantee Perfect Outcomes.
The mere fact that an official has a training policy does not mean that if some level of inadequacy is found in some aspect of the training, that the flaw proves the official has a policy of indifference to the rights of prisoners. Training of jail officers is full of variables which can influence training outcomes. While for each course or topic there may be formal objectives, lesson plans, and testing to reasonably ensure that the training is consistent from one class to another, the focus and content of the training will vary to some degree based on the training skills and emphases of different instructors. Training is, of course, delivered by human beings to other human beings who bring to the training exercise substantially disparate correctional experience, cognitive skills, backgrounds, cultural values, attitudes, and learning abilities. As a result, the content of the training will be received and understood differently by individual officers and consequently may be implemented or executed in moderately different ways; especially, in situations which require application of policies and procedures to ambiguous or unclear problems.
For over 40 years, I have trained participants from virtually every state in the nation. I have also designed and/or helped to design training programs in many different states, including providing technical assistance in developing state-level pre- and in-service training programs. This participation on a national level has provided unique opportunity to understand both the capabilities and limitations of training. I have found a wide range of quality and sophistication in the development and presentation of training programs among the nations jails and prisons. Also, I have observed that persons sitting in the same training class will not all derive the same benefit from the training they receive. Depending on individual trainees’ motivation, cognitive skills, and other factors some will fare better than others in the training. This can be observed in the post-training test scores achieved by officers and by their performance in the workplace after they have completed pre-service training requirements. As the Supreme Court recognized:
In resolving the issue of . . . liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability . . . for the officer’s shortcomings may have resulted from factors other than a faulty training program. It may be, for example, that an otherwise sound program has occasionally been negligently administered. Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. 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 [establishing liability].” City of Canton v. Harris, 489 U.S. 378, 390-391 (1989) (emphasis added).
There must Be a Connection Between Any Training Flaws and the Injuries Which Occurred.
Even a less than adequate training program does not establish liability if there is no nexus between the training flaws and the injuries suffered by the prisoner. As the Supreme Court has ruled, “for liability to attach . . . the identified deficiency in a . . . training program must be closely related to the ultimate injury.” Thus the “respondent must still prove that the deficiency in training actually caused the police officers’ indifference to her medical needs.” City of Canton v. Harris 489 U.S. 378, 391 (1989). If, for example, an officer not properly trained as to the formal procedures for handling a prisoner’s serious medical need, nonetheless properly summons medical assistance in a timely manner and otherwise handles the matter in a manner consistent with proper protocol, even if the prisoner ultimately suffers harm in the incident it could not be said that it was the officer’s lack of training that caused the harm. The officer may have only known the correct procedure by watching or talking with other staff members. That should not matter. What matters is the officer performed in a reasonable and proper manner. That he did so despite being improperly trained does not invalidate the correct handling of the incident, and a prisoner-plaintiff should not be able to prevail on the inadequate training issue. In my role as an expert witness and/or litigation consultant, I have seen many instances of staff members performing their duties and responsibilities satisfactorily despite inadequate formal training.
Adequate Training No Guarantee of Proper Actions by Staff.
Plaintiffs’ attorneys will generally insert a claim of inadequate training of staff, often even before they have even looked at the training program. The basic thrust of the plaintiff’s assertions is usually that but for training deficiencies, staff would not have trampled the prisoner’s constitutional rights or otherwise caused him harm. The Supreme Court has considered the issue of whether training ensures that an officer will exercise perfect judgment and will always act appropriately. The Supreme Court asks whether such injuries would have been avoided had the corrections officer been trained under a program that was not deficient. The Court then answers its own question. “Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the fact-finder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error and perhaps might react very much like the untrained officer in similar circumstances.” Canton v. Harris 489 U.S. 378, 391 (1989) (emphasis added).
Certainly training has the potential of improving the capabilities, expertise, and competence of corrections staff. Just how much that will happen will vary with each individual. Training by itself is not a magic salve that if rubbed on staff members will render them impervious to error, misjudgment, or misconduct. Training is important in preparing officers to adequately perform their duties. That does not mean, however, that officers can not learn through other means those things which were inadequately covered or even omitted from formal training (e.g., on-job training, field training officers). It is without a doubt very important to provide adequate training; however, officials should also be aware that flaws which exist in a training program are not an automatic death sentence in defending litigation which alleges harm resulting from training flaws.
Gary DeLand is the Director of Jail Operations for the Utah Sheriffs’ Association and President of DeLand & Associates, Inc. He has traveled to more than 45 U.S. states to provide legal issues and other criminal justice training. Formerly, Gary served as Commander of the Jail Division of the Salt Lake County Sheriff’s Office. In 1985, he was appointed to the position of Executive Director for the Utah State Department of Corrections. Gary served as Senior Advisor to the Iraqi Ministry of Justice, Correctional Services Division in 2003. He has served as an officer for NSA’s Presidents and Executive Directors Committee and as Chair of the ACA Legal Issues Committee. Gary is the past Editor-in-Chief and Executive Editor of the Corrections Managers’ Report. He currently serves as a NIJO Executive Advisory Board Member.