"Deliberate indifference": liability for failure to train

In virtually every instance where a person's constitutional rights were violated by a police officer, a plaintiff will be able to point to something the employing entity--county or municipality--could have done to prevent the unfortunate incident. Frequently, where the alleged violation of rights is caused by the use of force by a police officer, the injured party will attempt to hold the county or municipality responsible by asserting that the harm caused could have been avoided by a more adequate training program. This article addresses the issue of county or municipal liability under the federal statute Title 42, United States Code, Section 1983 (herein-after Section 1983), which permits individuals to hold government employees and, in some cases, their employers accountable for violation of rights secured by the U.S. Constitution. (1) In particular, this article explores the contours of employer liability for claims that the constitutional violation was caused by a failure to adequately or properly train employees.

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In resolving the issue of liability for failure to train, focus is placed on the adequacy of the training program in relation to the tasks particular officers must perform. However, it is not enough to merely show that a situation will arise and that an officer taking the wrong course of action in that instance will result in injuries to citizens. Even adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding a city or county liable for that mistake. A city or county will not be liable simply because it employed the officer whose actions resulted in a deprivation of a citizen's constitutional rights. Rather, a plaintiff must establish that government policy-makers either were or should have been aware that a training program was inadequate and did little or nothing about the problem. Which is to say, policy-makers were deliberately indifferent to the harm that would likely result from the failure to train. (2)

"Deliberate indifference" is a standard of fault that requires a showing that government policy makers acted with conscious disregard for the obvious consequences of their actions. (3) 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. (4) 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. (5) 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. (6) In such cases, the constitutional violation must be a highly predictable or plainly obvious consequence of the failure to train.

A training program must be quite deficient for the deliberate indifference standard to be met. To hold the city or county liable, a plaintiff must show that the level of training was so deficient that it fell below what is constitutionally acceptable. Liability does not attach where an otherwise adequate training 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 received better or more training sufficient to equip the officer to avoid the particular injury-causing conduct. (7) The fact that training was imperfect or not in the precise form that a plaintiff would prefer is insufficient to make a showing of deliberate indifference. (8) Such second-guessing could be made about almost any encounter resulting in injury.

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While a city or county may be exposed to liability only when it deliberately ignores the obvious consequences of the inadequacies of its training program, there is no neat set of rules that permits a city or county to determine with precision when a consequence will be deemed obvious. Predicting how a hypothetically well-trained officer would act under a specific set of circumstances is no easy task, particularly because matters of individual judgement may be involved. Nevertheless, one guiding principle is that by choosing the deliberate indifference standard of liability for Section 1983 claims, the U.S. Supreme Court has made it difficult for individuals to hold city and county governments liable for violations of rights secured by the U.S. Constitution based on an alleged failure to train.

Employer Liability Under Section 1983

In Monell v. Department of Social Services of City of New York, the U.S. Supreme Court established the fundamental principle in the law of municipal liability under Section 1983 that local governments may be held liable only for their own conduct and not merely for the conduct of their employees. (9) That is, the government entity is not vicariously liable for the actions of its police officers simply because it employed the officer and the harm was caused while the officer was acting within the scope of his or her employment. Instead, liability only attaches to the county or city for injury caused by actions or omissions attributable to the government itself. (10) Government (as opposed to individual) liability under Section 1983 is restricted only to those cases in which "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by that body's officers." (11) Government conduct by way of its policy, in addition to the individual employee's conduct that directly resulted in the harm, must be identified as causing a violation of a recognized constitutional right. (12)

A plaintiff seeking to find a city or county government liable under Section 1983 must establish a causal connection between the injury and a government policy or custom. (13) Locating a policy ensures that liability attaches only for those deprivations of constitutional rights resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the government itself. (14) City or county government liability under Section 1983 attaches "where--and only where--a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." (15) The assessment of what official possesses final authority to establish policy is determined by state law. The discretionary decisions of lesser officials will not be imputed to the agency as actionable policy. (16)

Identification of a "Policy"

Generally, three possible avenues are open to plaintiffs to show the existence of a "policy" that allegedly caused a constitutional violation.

1) An express written policy or an actual directive from a policy-making official that, when enforced, causes a constitutional violation--in short, an unconstitutional policy. Where a plaintiff can demonstrate that an existing policy is itself unconstitutional when applied as intended or that a specific action taken or directed by the government itself violated a citizen's constitutional rights, resolving the issues of fault and causation is relatively straight forward. In these cases, there is clear governmental action that can be attributed as the cause, or moving force, behind the injury of which the plaintiff complains. (17) A policy also can be inferred even from a single decision made by the highest official responsible for setting policy within that area of a government's business. (18)

2) Widespread conduct that results in violations of constitutional rights, although not authorized by any written law or policy, that is so permanent and well-settled as to constitute a custom or practice with the force of law may serve as the functional equivalent of a written policy. (19) Essentially, a practice of condoning constitutional violations must be established. Because a custom or practice must be established, evidence of only a single alleged incident, particularly if it involved only actors below policy-making level, will typically not be sufficient.

3) An inadequate written policy or a practice that is not unconstitutional itself but which reflects deliberate indifference to persons' constitutional rights because the deficiency causes officers to violate constitutional rights. (20) This is often difficult for plaintiffs to establish because the deprivation of rights is allegedly caused not by affirmatively unconstitutional acts attributable to the government but by omissions or failure to take adequate steps to safeguard constitutional rights. (21) Most failure-to-train cases fall into this category. Few training programs are unconstitutional when applied as intended. For example, a county or municipality will rarely have an express written or oral policy permitting the excessive use of force. Thus, for liability to attach, it is necessary to establish the existence of a custom or practice--a policy--that permitted excessive force to occur by demonstrating that the municipality deliberately failed to adequately train its police officers in a relevant respect. (22)

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"Deliberate Indifference" as "Policy"

In City of Canton v. Harris, (23) the U.S. Supreme Court established deliberate indifference as the standard required to show the existence of a policy or custom when a constitutional violation allegedly results from a failure to train. The Court described this standard as follows:

    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 failure under Section 1983.
    Monell's rule that a city is not liable under Section 1983 unless a
    municipal policy causes a constitutional deprivation will not be
    satisfied by merely alleging that an existing training program for a
    class of employees, such as police officers, represents a policy for
    which the city is responsible .... [I]t 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 inadequate
    training so likely to result in the violation of constitutional
    rights, that the policy makers 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. (24)

Liability should attach only if the failure to train is a "deliberate choice to follow a course of action," and this failure to train must have led to--caused--the injury in question. (25) This standard ensures that isolated instances of misconduct are not attributable to a generally adequate policy or training program. The deliberate indifference standard requires a high degree of culpability on the part of the policy maker. A plaintiff must not only establish defects in training procedures but also that policy makers did nothing to cure those defects when they knew or should have known that violations of constitutional rights would be the obvious result. For example, where there has been a demonstrable effort to train officers to handle usual and recurring situations, evidence of a single alleged incident involving excessive use of force by an officer typically will not suffice to prove deliberate indifference that equates to a policy permitting the excessive use of force.

    After the 20-week basic-training course, the city required ... all
    officers to attend an annual 3-day training program that provided
    updated information on laws concerning arrest, detention, and search
    and seizure. [The plaintiff] has provided no evidence of defects in
    the city's training procedures. [The plaintiff] has shown neither
    that decision makers continued to adhere to a training program they
    know or should have known had failed to prevent officers' use of
    force, nor that a pattern of tortious conduct by inadequately
    trained officers indicated lack of proper training. At most, [the
    plaintiff] has shown a single violation of federal rights, which
    does not alone permit an inference of municipal culpability and
    causation. [The plaintiff] has shown that only [the officer] may
    have acted culpably, not the city. (26)

Taken together, the often intertwined considerations of fault in the form of deliberate indifference and causation amount to a requirement that liability be based on a finding that the policy makers have actual or constructive notice that a particular inadequacy in a training program is likely to result in a constitutional violation. (27) Therefore, in addition to establishing a constitutional violation, a plaintiff must make the following showings to proceed against a government employer under a failure-to-train theory. (28)

1) Inadequate training: Training must be shown to be deficient in a relevant respect given the injury sustained. The focus is on the deficiencies in the training program itself, not on whether the particular officer involved was adequately trained.

2) Causation: The failure of the program to provide training caused the injury. That is, the injury would have been avoided had the employee been trained under a program that was not deficient in the identified respect.

3) Deliberate indifference: The inadequate training program must be a "policy" of the municipality. This is demonstrated by circumstances that evidence that policy makers--individuals with final decision-making authority in the respective area of municipal responsibility--knew or should have known about the need for the identified training but remained deliberately indifferent to that need.

In Canton, the Court used training on deadly force to illustrate the standard of deliberate indifference. The Court noted that "city policy makers know to a moral certainty that their police officers will be required to arrest fleeing felons." (29) Moreover, "[t]he city has armed its officers with firearms, in part to accomplish this task." (30) In such a situation, "the need to train officers in the constitutional limitations on the use of deadly force ... can be said to be 'so obvious' that a failure to do so would properly be characterized as 'deliberate indifference' to constitutional rights." (31) Even where the need to train would not be obvious to a stranger to the situation, a particular context--such as a documented pattern of violations--might make the need for training or supervision so obvious to a policymaker that a failure to do so would constitute deliberate indifference. Thus, the Court suggested that "[i]t 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 policy makers, who nevertheless, are 'deliberately indifferent' to the need." (32)

The "Deliberate Indifference" Standard

It is possible to discern three closely related requirements that must be met before a failure to train will constitute deliberate indifference to the constitutional rights of citizens. (33) First, the plaintiff must show that policy makers know to a moral certainty that their employees will confront a given situation as opposed to rare or unforeseen events. Second, the plaintiff must show that the situation either presents the employee with a difficult exercise of judgement that training will make less difficult, or that there is a history of employees mishandling the situation. There must be awareness of a problem that is susceptible to improvement through training. Third, the plaintiff must show that the wrong choice by the employee is likely to cause the deprivation of a citizen's constitutional rights. Training resources may appropriately be concentrated on those situations where an error in judgement by an officer is likely to result in a constitutional violation. Where a plaintiff can establish all three elements, then it can be said that the policy maker should have known that inadequate training was "so likely to result in the violation of constitutional rights, that the policy makers ... can reasonably be said to have been deliberately indifferent to the need." (34)

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In Zuchel v. City and County of Denver, Colorado, (35) the U.S. Court of Appeals for the Tenth Circuit, found that a city police department was deliberately indifferent due to its inadequate training of police officers as to the practical aspects regarding use of deadly force. The court concluded that the circumstances giving rise to an unconstitutional shooting of a suspect by a police officer represented a usual and recurring situation with which city police officers were required to deal, so that the city could be liable under Section 1983 for the officer's actions. In reaching this conclusion, the court referred to a letter from the district attorney to the city police chief discussing six police officer-citizen encounters involving deadly force that had occurred in a 6-week period and recommending that periodic shoot-don't-shoot live training should be made part of the training program to minimize unjustified shootings. In addition, testimony from the district attorney was provided at trial to the effect that it was foreseeable that officers would be placed in situations where they would have to make decisions on whether to shoot. An expert also testified that it was predicable in large cities that police officers would encounter situations in which they would have to make judgements as to whether to shoot. (36) Prior to the incident, the department's shoot-don't-shoot training consisted of a lecture and a movie presented to officers during basic training at the police academy. The inadequacies of that training program were identified by an expert witness as the cause of the shooting in question. The witness offered the opinion that strategic judgement cannot be taught in a classroom--particularly based only on the showing of a single film--and that the officer, due to lack of training, handled the situation with the suspect as a layperson, rather than a trained professional. (37)

The city argued that as a matter of law, it could not be found deliberately indifferent because it had some shoot-don't-shoot training and, thus, recognized the problem and was addressing it. The court rejected this argument, finding that the city did not properly apply the definition of deliberate indifference under Canton. In establishing deliberate indifference, focus must be placed on whether the need for more or different training is so obvious, and the inadequacy so likely to result in the deprivation of constitutional rights, that the policymakers can be said to have been deliberately indifferent to the need. "Thus, a city is deliberately indifferent if 1) its training program is inadequate and 2) the city deliberately or recklessly made the choice to ignore its deficiencies." (38) In this case, the court concluded that the testimony underscored the obviousness of the deficiency of the existing training program. The district attorney's letter expressly recommended that the police department institute expanded training in the areas of "strategic skills development; how to analyze situations, develop options, and select the option that minimizes the likelihood of a violent confrontation" and "periodic target course 'shoot-don't-shoot' live training under street conditions." (39) Because the police department presented no evidence of any attempt to address the deficiencies of its training program, the court found that the evidence was sufficient to permit a jury to reasonably infer that the city's failure to implement some form of periodic live training constituted deliberate indifference to the constitutional rights of the city's citizens. (40)

A finding of deliberate indifference requires that the government has disregarded a known or obvious risk of harm caused by its failure to develop an adequate training program. However, a showing of specific incidents that establish a pattern of constitutional violations is not necessary to put a municipality on notice that its training program is inadequate. A single violation of constitutional rights combined with a failure to train officers to handle that situation is sufficient to trigger municipal liability if the situation was likely to occur and presented an obvious potential for a constitutional violation. (41)

In Young v. City of Providence, the First Circuit Court of Appeals recently addressed the issue of municipal liability in a Section 1983 action in which there was no evidence of a prior similar constitutional violation. (42) Young involved a wrongful death action alleging excessive force after the victim, who was an off-duty officer responding to an incident under the city's always armed/always on-duty policy, was shot by two other officers who were responding to the same incident. The city had a use-of-force training program in place that included judgmental shooting. This training consisted of interactive video simulation and live range exercises that included don't-shoot scenarios. However, the city did not provide training that specifically addressed identification of officers responding under its' always armed/always on-duty policy and had no protocols in place governing off-duty officer response situations. (43)

Although there was no evidence of a past friendly fire shooting, the court concluded that a jury could find deliberate indifference because "the department knew that there was a high risk that absent particularized training on avoiding off-duty misidentifications, and given the department's always armed/always on-duty policy, friendly fire shootings were likely to occur." (44)

Young illustrates a number of factors that are considered when imputing government knowledge of an obvious risk of harm as required to show deliberate indifference. Even when there have been no prior violations, where a policy or practice of a police department creates an obvious risk of harm, where training would tend to reduce that specific type of harm, and where the wrong decision of an untrained officer will likely result in flagrant violations of constitutional rights, a municipality may be deemed deliberately indifferent if it does not afford some training that specifically addresses the particular potential for harm. In Young, there was evidence presented that the always armed/always on-duty policy was inherently dangerous because without specific training, it was likely that off-duty officers would intervene un-wisely and that on-duty officers may mistake them for suspects. Indeed, the city also changed its always-armed/always on-duty policy after the friendly fire incident such that officers were not required to carry firearms while off duty and provided a specific protocol for any off-duty action that was taken. (45)

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Although there had been no prior friendly fire incidents, there was evidence presented that the city was aware that such incidents were predicable based on numerous reports from police officers of past mis-identifications of off-duty personnel that did not end with tragic results. The city was, therefore, deemed to be on notice that interactions between off-duty and on-duty officers were probable (a "usual and recurring situation with which its officers were required to deal"). (46) Further, interactions between on-duty and off-duty officers are typically high stress situations. In such incidents, officers tend to fall back on training. That being the case, specific training would likely reduce the inherent dangerousness posed by intervening armed, off-duty officers. The severity of the consequences of a friendly fire incident were obvious and the need to train to avoid such an occurence was acknowledged by testimony of police personnel responsible for training. (47)

Deliberate indifference will not be imputed to a city or county government based on its failure to afford specific training to better handle un-precedented occurrences. An example is afforded by the Fifth Circuit case Cozzo v. Tangipahoa Parish Council, (48) which involved alleged violations of Fourth and Fourteenth Amendment rights stemming from a clearly unlawful eviction following a police captain's allegedly erroneous interpretation of the requirements of a temporary restraining order in a domestic case. Although the plaintiff was able to establish that there was a failure to set any specific rules or guidance regarding the actions allowed when enforcing restraining orders in domestic cases and that there was a direct causal connection between the lack of training and the alleged violation, the court found that there was no basis for municipal liability due to the unprecedented nature of the incident. (49) An unlawful eviction pursuant to a captain's interpretation of a restraining order had never before occurred in more than 20 years of documented sheriff's department history. (50) There was no deliberate indifference given the lack of prior similar constitutional violations and no evidence to support a finding that constitutional violations were a predictable consequence of a failure to afford specific training in the interpretation of temporary retraining orders.

Conclusion

Liability for failure to train will be imposed when it can be demonstrated that a municipal policymaker knew or should have known that inadequate training was so likely to result in the violation of constitutional rights that the policy maker can reasonably be said to have been deliberately indifferent to the need. The inadequacy of the training program must be obvious and likely to result in a constitutional violation.

Although deliberate indifference is most often found in cases that involve inaction in the face of a pattern of prior similar constitutional violations, a failure to act that results in a single unprecedented incident can support a finding of deliberate indifference where the constitutional violation was a highly predictable consequence of a failure to train.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Endnotes

(1) Title 42, U.S.C., [section] 1983 provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation or custom or usage of any State ... subjects or causes to be subjected, any citizen of the United States or other person ... to the deprivation of any rights, privileges and immunities secured by the Constitution and laws shall be liable to the party injured in any action at law ...."

(2) City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L.Ed. 2d 412 (1989).

(3) See Board of County Commission of Bryan County Oklahoma v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 137 L.Ed. 2d 626 (1997).

(4) Id. at 407-408

(5) Id. at 409.

(6) Id.

(7) See Palmquist v. Selvik, 111 F.3d 1332, 1345 (7th cir. 1997) (Where town gave police some training on handling suspects exhibiting abnormal behavior, argument that even more training should have been given failed.).

(8) See Canton 489 U.S. at 391; Young ex rel. Estate of Young v. City of Providence, 404 F.3d 4, 27 (2005); Grazier v. City of Philidelphia, 328 F.3d 120, 125 (3rd Cir. 2003).

(9) 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L.Ed. 2d 611 (1978) (In Monell, the Supreme Court held that municipalities and other local governmental bodies are "persons" within the meaning of [section] 1983 and, therefore, are subject to liability based on their actions or policies that subjected a person to a deprivation of a constitutional right but that they are not liable merely because they employed the person who actually inflicted the deprivation.).

(10) Id. at 689.

(11) Id. at 691, 694.

(12) See Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S. Ct. 1061, 117 L.Ed. 2d 261 (1992) (It should be stressed that a local government's failure to train that results in injury to a plaintiff is not actionable under [section] 1983 unless the failure led to a violation of an established constitutional right that, in turn, caused the plaintiff's injuries.).

(13) Monell, 436 U.S. at 693-94.

(14) Id. at 694.

(15) Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S. Ct. 1292, 1298 (1986).

(16) See City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L.Ed. 2d 107 (1988).

(17) See Brown, 520 U.S. at 407-408.

(18) See Pembaur at 475 U.S. 480 (In ordering deputy sheriffs to enter physician's clinic without a warrant to serve capiases on third parties in an investigation of alleged welfare fraud, county prosecutor was acting as final decision maker for county; therefore, county could be held liable under [section] 1983 for alleged violation of physician's Fourth Amendment Rights based on that single directive.).

(19) See Jett v. Dallas Independent School Dist., 491 U.S. 701. 109 S. Ct. 2702 (1989) (It is for a jury to determine whether policy making officials' decision have caused the deprivation of rights at issue 1) by policies that affirmatively command it to occur or 2) by acquiescence in a longstanding practice or custom that constitutes the standard operating procedure of the local governmental entity.); ODonnell v. Brown, 335 F.Supp 2d 787, 816 (W.D. Mich. 2004).

(20) See Canton, 489 U.S. at 387 (Canton expressly rejected the argument that a city is liable only when the municipal policy is itself unconstitutional. Rather, "if a concededly valid policy is unconstitutionally applied by a municipal employee, the City is liable if the employee had not been adequately trained and the constitutional wrong has been caused by a failure to train."); City of Oklahoma City v. Tuttle, 471 U.S. 808, 822-823, 105 S. Ct. 2427 (1985).

(21) Brown, 520 U.S. at 411 (Due to difficulty in establishing causation, inadequate screening of a reserve deputy applicant by county sheriff does not necessarily lead to liability on the part of the county for injury caused by that reserve deputy. For a finding of liability, the plaintiff must establish 1) a constitutional violation and 2) the specific injury that occurred was the plainly obvious consequence of the hiring decision.).

(22) Canton, 489 U.S. at 388-89.

(23) 489 U.S. 378.

(24) Id. at 389-390.

(25) Pembaur, 475 U.S. at 483-84.

(26) Ward v. City of DesMoines, 184 F. Supp 2d 892, 898 (S.D. Iowa 2002).

(27) See, e.g., Cornfield By Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993) (Student subjected to strip search failed to state a claim establishing deliberate indifference by school district so as to support imposition of liability on failure-to-train theory. Constitutional rights in this area not clearly established and the existence of only two prior incidents of strip searching fell short of a pattern of violations sufficient to put the school board on notice of potential harms to students.).

(28) See Palmquist, 111 F.3d at 1345.

(29) Canton 489 U.S. at 390, note 10.

(30) Id.

(31) Id.

(32) Id.

(33) This three-part test for deliberate indifference based on the language used in Canton was enunciated in Walker v. City of New York, 974 F. 2d 293 (2nd Cir. 1992), cert. denied, 507 U.S. 961, 113 S. Ct. 1378, 122 L.Ed. 2d 762 (1993) (Various different tests for municipal liability based on a failure to train have been formulated in several federal circuits; all of these tests obviously contain a deliberate indifference component (See, e.g., Fraire v. City of Arlington, 957 F. 2d 1268 (5th Cir. 1992), cert. denied 506 U.S. 973, 113 S. Ct. 462, 121 L.Ed. 2d 371; Allen v. Muskogee, Oklahoma, 119 F.3d 837 (10th Cir. 1997), cert. denied, 522 U.S. 1148, 118 S. Ct. 1165, 140 L.Ed. 2d 176; Young v. City of Augusta, 59 F.3d 1160 (11th Cir. 1995); Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996)).

(34) Canton 489 U.S. at 388.

(35) 997 F.2d 730 (10th Cir. 1993).

(36) Id. at 740.

(37) Id. at 739.

(38) Id. at 740, note 5.

(39) Id. at 747.

(40) Id. at 741.

(41) Allen, 119 F.3d at 849.

(42) 404 F.3d 4 (1st Cir. 2005).

(43) Id. at 8-10.

(44) Id. at 18 (The court cited both the "highly predicable consequence language" of Brown, 520 U.S. at 409, and the "know to a moral certainty" language of Canton, 489 U.S. at 390 7n.10.).

(45) Id. at 11.

(46) Id. at 10.

(47) Id.

(48) 279 F.3d 273, 289-290 (5th Cir. 2002).

(49) Id. (The claim with respect to the municipality failed because no municipal policy was shown. The sheriff had the authority as policy maker. There was no express policy that authorized the action taken by the police captain and there was no widespread practice or custom that fairly represented department policy. "Having failed to demonstrate the existence of a policy, the evidence simply did not substantiate a finding that sheriff ... implemented a policy so deficient that it was a repudiation of ... constitutional rights and was the moving force of the unconstitutional dispossession of property.").

(50) Id. at 290.

By MARTIN J. KING, J.D.

Special Agent King is a legal instructor at the FBI Academy.

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