Opinion
Cause No. NA01-0015-C-B/G
September 23, 2002
ENTRY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff Tamra Ross filed suit under 42 U.S.C. § 1983 against Defendants Town of Austin, Town of Austin Police Department, and Austin Police Chief Marvin Richey, alleging that Defendants' failure to train police officers in the proper use of deadly force and the proper hostage negotiation procedure resulted in a violation of her decedent's Fourteenth Amendment substantive due process rights. Defendants move for summary judgment, arguing that Plaintiff's decedent suffered no constitutional injury. For the reasons set forth below, we GRANT Defendants' Motion for Summary Judgment and DENY as moot both Plaintiff's and Defendants' Motions to Strike.
It is our practice to consider motions to strike simultaneously with a motion for summary judgment. In considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant, the Plaintiff in this case. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). Even when we remove from consideration all evidence challenged by Plaintiff in her Motions to Strike and take into consideration all evidence challenged by Defendants in their Motions to Strike, however, we GRANT Defendants' Motion for Summary Judgment. Therefore, we DENY as moot all Motions to strike.
Factual Background
Plaintiff Tamra Ross ("Mrs. Ross"), a resident of Scott County, Indiana, is the widow of Kenneth Wayne Ross as well as the personal representative of his estate. (Compl. ¶¶ 1-2.) Defendant Town of Austin ("Town") is an Indiana municipal corporation. (Compl. ¶ 4.) Defendant Town of Austin Police Department ("APD") is an Indiana law enforcement agency and a duly authorized Department of the Town of Austin. (Compl. ¶ 5.) Defendant Marvin Richey ("Chief Richey") is an Indiana resident and was, from July 1998 to March 2002, Chief of Police of the APD. (Compl. ¶¶ 6-7.)On February 28, 2000, APD Captain Lonnie Noble ("Captain Noble") responded to a call from police dispatch that shots had been fired in the parking lot of Austin Elementary School. (Compl. ¶ 9.) The shooter, Gregory Miller ("Miller"), then fled the scene and his target, his estranged wife, Sue Miller. (Compl. ¶ 10.) While en route to the school, Captain Noble observed a multi-car collision at the intersection of State Road 256 and Highway 31 in Austin, Indiana. (Pl.'s Resp. to Defs.'s Statement of Material Facts at ¶ 5.) After observing Miller emerge from one of the vehicles carrying a shotgun, Captain Noble proceeded in his squad car a few feet south of the intersection. He turned into the parking lot of the Hucks Convenience Store because he believed Miller was headed in that direction. (Pl.'s Resp. to Defs.'s Material Facts at ¶ 7.) Captain Noble exited his squad car and ordered Miller to drop his gun, which Miller refused to do. (Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 10, 12.)
At this point, the parties' descriptions of the incident differ with regard to some minor details. The following material facts, however, are undisputed. As Captain Noble pursued Miller around various obstacles in the Hucks parking lot and into the adjacent parking lot of the Main Package Store, Miller had his shotgun at his hip, aimed at Captain Noble. (See Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 14-17; 24.) Although Captain Noble was aware that deadly force could have been used legally under these circumstances to disarm or disable Miller, he did not feel that he had a clear shot. (See Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 16; 24-25.)
Plaintiffs vigorously challenge whether Captain Noble, in fact, had a clear shot. They do not, however, dispute his perception of the situation. (Pl.'s Statement of Add'l Material Facts at ¶¶ 97, 103, 111, 122-24.)
In the parking lot of the Main Package Store, Miller raised his shotgun at Captain Noble, forcing Captain Noble to take cover behind Kenneth Ross's pick-up truck. (Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 19-20.) While Captain Noble's view of Miller was at least partially obscured by the truck, Miller entered the front door of the Main Package Store. (Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 22.) Captain Noble remained behind the pick-up truck, which he used for cover, and called for assistance. He did not pursue Miller into the store. (Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 23.)
Once inside the Main Package Store, Miller confronted Kenneth Ross, an employee of the storre, in the back storage room, outside the view of the surveillance camera. (See Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 26-29.) The parties strongly disagree as to whether Miller shot Kenneth Ross immediately upon confronting him or whether Miller held Kenneth Ross hostage for some time before committing a murder/suicide. (Cf. Defs.'s Statement of Material Facts with Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 26-29.) This disagreement is immaterial, however, because in deciding a motion for summary judgment, we view the facts in the light most favorable to the plaintiff, Mrs. Ross, and therefore, will treat the event as a hostage situation. Kenneth Ross is never seen on the video surveillance tape again. (Pl.'s Resp. to Defs.'s Material Facts at ¶ 28.)
Scott County dispatch made at least three telephone calls to Miller once he was inside the Main Package Store with Kenneth Ross. (Pl.'s Resp. to Defs.'s Material Facts at ¶ 29.) During one of those phone calls, Captain Noble authorized dispatch to place Miller in telephone contact with his estranged wife, who he had shot at earlier that morning. (Pl.'s Resp. to Defs.'s Material Facts at ¶ 32.)
Their conversation ended abruptly, after which nothing further was heard over the telephone line. (See Pl.'s Resp. to Defs.'s Material Facts at ¶¶ 35; 37.) At this time, the Indiana State Police took control of the investigation. (Pl.'s Resp. to Defs.'s Material Facts at ¶ 39.) When entry was gained to the Main Package Store, Miller's body was found where it was last scene on the surveillance videotape-in the front room, behind the counter, crouched over the phone. (Pl.'s Resp. to Defs.'s Material Facts at ¶ 42; photographs of the scene.) Ross's body was found in the back room. (Photographs of the scene.)
Although Captain Noble is not a Defendant in this case, his response to the above-described incident forms the basis of Mrs. Ross's failure-to-train claims. Captain Noble has been employed by the APD since 1994. (Pl.'s Resp. to Defs.'s Material Facts at ¶ 43.) He received his basic training at the Indiana Law Enforcement Academy in 1995. (Pl.'s Statement of Add'l Material Facts at ¶ 50.) In addition, for the calendar years preceding February 28, 2000, Captain Noble completed at least the minimum amount of in-service training required by the state. (Defs.'s Resp. to Pl.'s First Req. for Produc. of Docs., Ex. B.) In 1995, he received training in "Techniques for Surviving Life and Death Encounters." (Id.) In the subsequent years, in addition to continuing to qualify his firearm, he received training in such skills ranging from "Defensive Tactics `Nunchaku'" to "How to Develop, Manage, and Supervise ERT." (Id.) He did not, however, receive specific instruction regarding the use of firearms in combat situations or the handling of hostage situations. (See Pl.'s Resp. to Defs.'s Material Facts at ¶ 44, quoting exchanges from the Aff. of L. Noble.)
On January 15, 2001, Mrs. Ross filed a Complaint against Defendants in Scott County Circuit Court alleging a violation of 42 U.S.C. § 1983. (Compl. ¶ 70.) She argued that Defendants were deliberately indifferent to Kenneth Ross's substantive due process rights under the Fourteenth Amendment of the United States Constitution because they failed to train the officers of the APD, and specifically Captain Lonnie Noble, in the use of deadly force to stop a fleeing felon or in the handling of hostage situations. (Compl. ¶ 71.) On January 26, 2001, Defendants removed this case to this court on the basis of federal question jurisdiction. 28 U.S.C. § 1441(a).
Standard of Review
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998).
On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 920. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. Shields Enterprises, Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.
Legal Analysis
Mrs. Ross claims a violation of § 1983 of the Civil Rights Act, which provides a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom or usage, of any State or Territory." 42 U.S.C. § 1983. To state a claim under § 1983, plaintiff must show that (1) the offending conduct was committed by a person acting under color of state law, and (2) that such conduct deprived the plaintiffs of rights secured by the Constitution. See Smith v. City of Chicago, 820 F.2d 916, 917 (7th Cir. 1987). In this case, neither party disputes the fact that Captain Noble acted under color of state law when he responded to an emergency call from police dispatch. Thus, the legal issue before us is whether Mrs. Ross's decedent, Kenneth Ross, suffered a constitutional injury.
Defendants will have violated the substantive component of the Due Process Clause of the Fourteenth Amendment only if their actions can be properly characterized as arbitrary, or conscience shocking, in the constitutional sense. County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998).
In addition, to maintain a § 1983 action against an institutional state actor for the actions of its agents, a plaintiff must demonstrate (1) an express policy that, when enforced, causes a constitutional deprivation; (2) a widespread practice that, although not expressly authorized, is so permanent and well-settled as to constitute a custom or usage; or (3) that the plaintiff's constitutional injury was caused by a person with final policy-making authority. Billings v. Madison Metro. Sch. Dist., 259 F.3d 807, 817 (7th Cir. 2001). Therefore, to recover Mrs. Ross first must show that the decedent's harm was caused by a constitutional violation. Then, she must prove that an institutional state actor-the Town, the APD, or Chief Richey, in this case-was responsible for that constitutional violation. Collins v. City of Harker Heights, 503 U.S. 115, 121-22 (1992).
Constitutional Injury
Although Defendants do not dispute the tragedy of Kenneth Ross's untimely death, they contend that summary judgment is appropriate in this case because he suffered no constitutional injury.
Although the Due Process Clause of the Fourteenth Amendment forbids the state from abusing its power to deprive individuals of life, liberty, or property, it does not impose an affirmative obligation on the state to guarantee certain minimal levels of safety and security. DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 195-96 (1989). Mrs. Ross, however, argues that the "state-created danger exception" to DeShaney applies in this case. Under the state-created danger exception, plaintiffs "may state claims for civil rights violations if they allege state action that creates, or substantially contributes to the creation of, a danger, or renders citizens more vulnerable to a danger [than] they otherwise would have been." Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993). Mrs. Ross contends that by failing to require the police force to use deadly force on behalf of victims of violent crime, and by failing to train the police force to handle hostage situations, the Defendants created a dangerous situation and thereby rendered its citizens more vulnerable to danger than they otherwise would have been. (Pl.'s Memo. in Opp. to Summ. J. at 6-8).
A two-part test sets forth the elements of a state-created danger claim. Wallace v. Adkins, 115 F.3d 427, 430 (7th Cir. 1997). First, the court must determine what actions the state actor affirmatively took. Then, it must examine what dangers the plaintiff would otherwise have faced. In considering the second element, however, the question is not what dangers the plaintiff would have faced had the state actor behaved as he wanted them to, but what dangers he would have faced absent the affirmative acts actually taken. Id.
Non-Use of Deadly Force
In support of summary judgment, Defendants argue that, under the circumstances, Captain Noble had no constitutional duty to use deadly force to disarm or disable the gunman, Gregory Miller.
We agree. In DeShaney, the Department of Social Services may have been aware of the danger plaintiff faced (child abuse), yet it placed him back in the custody of his natural father. 489 U.S. at 201.
Although the plaintiff's father subsequently beat him so severely as to render him "profoundly retarded," the Court held that the state played no part in the creation of plaintiff's danger, nor did the state do anything to render him any more vulnerable to that danger. Id. at 193, 201 ("when [the state] returned [plaintiff] to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all.")
In this case, even if Captain Noble knew that Kenneth Ross would be in danger once Miller entered the Main Package Store, he, like the Department of Social Services in DeShaney, did not affirmatively create Kenneth Ross's danger. Gregory Miller did. (See Pl.'s Memo. in Opp. of Summ. J., Ex. 1, Dep. of L. Noble p. 80, l. 14-18.) In another factually analogous case, Losinski v. County of Trempealeau, 946 F.2d 544 (7th Cir. 1991), the court did not find § 1983 liability where a sheriff's deputy, aware of the risk of violence, failed to intervene in a domestic dispute until the husband shot his estranged wife. Although the deputy fell short of protecting the wife from a known danger, the court concluded that he did not initiate state action. Id. at 550-51 (observing that the "factual settings [DeShaney] identifies as warranting an exception . . . involve incarceration or a functional equivalent, where the state actually creates the risk of harm through confinement.")
In Losinski, a sheriff's deputy accompanied a woman, at her request, to her estranged husband's home to collect her belongings. Aware of the husband's violent tendencies, the deputy stood in the hallway as the couple argued. He did not intervene until the husband produced a loaded gun and shot the wife. 946 F.2d at 547-48.
Nor did Captain Noble do anything to render Kenneth Ross more vulnerable to danger than he would have been had Captain Noble or the APD not acted at all. A disturbed Gregory Miller would still have been "striding" down State Road 256 with a loaded shotgun. (See Pl.'s Memo. in Opp. of Summ. J., Ex. 1, Dep. of L. Noble p. 47; 60-61.) Captain Noble did not place Kenneth Ross in a place or position of danger; he simply failed adequately to protect Kenneth Ross, as a member of the public, from a dangerous man. In the Seventh Circuit, one has no constitutional right to state protection from murder by criminals or madmen. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982); see also DeShaney, 489 U.S. at 201; Jackson v. City of Joliet, 715 F.2d 1200, 1205 (7th Cir. 1983) (no constitutional right to basic rescue services).
Handling of Hostage Situation
With regard to Captain Noble's decision to allow Gregory Miller to speak with his estranged wife, which allegedly increased the shooter's anxiety level and made him more prone to violence, we again hold, under similar reasoning, that such a judgment call does not rise to the level of a constitutional injury. If, as noted above, Kenneth Ross had no constitutional right to police protection from violent crime or to basic rescue services, it follows that he would have no constitutional right to hostage negotiation services. Taylor v. Watters, 655 F. Supp. 801, 806-07 (E.D.Mich. 1987) (holding that the failure of police to rescue successfully an endangered hostage did not constitute a deprivation of a liberty interest); see also Bryson v. City of Edmond, 905 F.2d 1386 (10th Cir. 1990) (where a gunman opened fire on a post office, killing some people instantly and rendering the initial survivors hostages, and police decided to wait an hour and a half before attempting to enter the building, court held that the limitations on the victims' liberty were imposed by their assailant, not by the police, and the police's delayed response did not constitute a constitutional injury).
In Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992), the most factually analogous case, a sheriff's department took control of a hostage situation on jurisdictional grounds, refusing the assistance of the more experienced local police department as well as the assistance of "a leading hostage negotiation authority and instructor." Id. at 302. The sheriff's efforts failed to prevent the gunman from shooting the hostage. Although the court found that the sheriff's department lacked an official hostage negotiation policy and any deputies with actual hostage negotiation experience, the court held that "the Fourteenth Amendment does not require [the sheriff] to train and equip members of the sheriff's department for special SWAT or hostage negotiation duties." Id. at 302, 309-310. We agree and find, therefore, that Kenneth Ross had no constitutional right to hostage rescue services.
Captain Noble's actions did not "shock the conscience"
In support of summary judgment, Defendants argue further that even assuming Mrs. Ross establishes a constitutional right to police protection from violent crime or to police rescue from hostage situations, Captain Noble's actions did not "shock the conscience" so as to result in a violation of the Due Process Clause. Although we have determined above that Kenneth Ross had no such constitutional rights, we briefly address Mrs. Ross's claim that Captain Noble's arbitrary actions "channeled" the shooter, Gregory Miller, into the Main Package Store. (Pl.'s Memo. in Opp. to Summ. J. at 10.)
In Lewis, the Supreme Court stated that the kind of official action most likely to "shock the conscience" would be "conduct intended to injure in some way unjustifiable by any government interest" or "deliberate decisions of government officials to deprive a person of life, liberty or property." 523 U.S. at 849 (emphasis added) (internal citations omitted). We evaluate the state actor's conduct in context, and in a fluid, dangerous context, the required level of culpability is greater than deliberate indifference to a known danger. "As the very term `deliberate indifference' implies, the standard is sensibly employed only when actual deliberation is practical." Id. at 850; see also Schaefer v. Goch, 153 F.3d 793, 797 (7th Cir. 1998). In the Seventh Circuit, the "yardstick" used to determine § 1983 liability in a fluid, dangerous context is "reasonable action based upon the specific circumstances confronting the officers on the scene, subject to their immediate capabilities and the possible limitations inherent to a . . . street patrol response." Reed, 986 F.2d at 1127. Extraordinary measures are not required. Id.
Mrs. Ross contends that Captain Noble's lack of training and inexperience forced him to act arbitrarily in deciding whether to protect the lives of the people inside Huck's or whether to protect the life of Kenneth Ross. Captain Noble, however, did not act arbitrarily with respect to particular individuals. See DeShaney, 489 U.S. at 198. Unlike the deputy sheriff in Ross v. U.S., 910 F.2d 1422 (7th Cir. 1990), who barred anyone from entering Lake Michigan to rescue a 12-year-old boy, Captain Noble did not greatly increase the risk of harm to one class of citizens (e.g., people in danger of drowning in Ross) in favor of protecting another class of citizens (e.g., private rescuers in Ross). Nor did he restrict Kenneth Ross's access to self-help. See Ross, 910 F.2d at 1430-31. Tragically, Kenneth Ross was a member of the public who happened to be in the wrong place at the wrong time.
Although the exact sequence of events is disputed in this case, neither party suggests that Captain Noble had time to do anything but react to the situation around him. Mrs. Ross maintains only that his reactions should have been better informed, that he should have known how to manipulate the gunman's position vis-a-vis the public around him to avoid endangering Kenneth Ross. However,
Captain Noble, in his deposition, described this scene this way: "Everything happened in seconds. I mean, you know, it was just split decisions. Everything happened in seconds." (Dep. of L. Noble at p. 52, l. 8-10.)
the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made in haste, under pressure, and frequently without the luxury of a second chance. . . . When unforeseen circumstances demand an officer's instant judgment, even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates the large concerns of the governors and the governed.
Lewis, 523 U.S. at 853 (internal citations omitted).
While Captain Noble's spur-of-the-moment decisions to refrain from using deadly force to disable or disarm Gregory Miller and to put Miller in touch with his estranged wife during a hostage negotiation may not have been advised, they were at most negligent, and "liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." Daniels v. Williams, 474 U.S. 327, 328 (1986). Because Captain Noble did not "knowingly and affirmatively create a dangerous situation for the public" or intend to cause harm to Kenneth Ross, his actions do not shock the conscience. Reed, 986 F.2d at 1127; Schaefer, 153 F.3d at 798. Therefore, as Captain Noble's actions did not result in a constitutional injury to Kenneth Ross, we GRANT Defendant's Motion for Summary Judgment.
Failure to Train
Defendants contend, correctly, that a claim against a municipality for failure to train its officers cannot stand once the underlying claim alleging a constitutional injury has fallen. See Schaefer, 153 F.3d at 799. Out of respect for Mrs. Ross's situation, however, we address her failure-to-train claim specifically.
Mrs. Ross claims that the Town of Austin failed to train its police officers in the proper use of deadly force and proper hostage negotiation procedure, and that these failures caused Captain Noble to deprive Kenneth Ross of his constitutional rights. Although we did not find that Kenneth Ross suffered an injury protected by the Constitution, even if we were to assume that the police training was so inadequate as to give rise to a constitutional injury, we must conclude that it would not give rise to § 1983 liability. Under City of Canton v. Harris, 489 U.S. 378 (1989), "only where a municipality's failure to train its employees `in a relevant respect' evidences a `deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city `policy or custom' that is actionable under § 1983." Id. at 389.
The phrase "in a relevant respect" directs us, in resolving the issue of municipal liability, to focus on the adequacy of the training program in relation to the tasks the particular officer(s) must perform. A failure-to-train 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. City of Canton, 489 U.S. at 390-91. In addition to the duties of a "Patrolman," a "Captain" in the APD is charged with certain administrative responsibilities. Mrs. Ross has not alleged, however, that Captain Noble is a member of any special force.
A Captain "shall be responsible for the general good order and discipline of their respective shifts." (Rules and Regs. at 8.)
In the Seventh Circuit, "deliberate indifference" requires that the municipality act intentionally or with criminal recklessness. Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991) (defining recklessness in the constitutional sense to mean "the state actor must ignore a known and significant risk of death.") In a failure-to-train case, the need for enhanced training must be so obvious and the inadequacy of training so likely to result in a violation of constitutional rights that a jury could reasonably attribute to policymakers a deliberate indifference to training needs. Erwin v. County of Manitowoc, 872 F.2d 1292, 1298 (7th Cir. 1989). Mrs. Ross cannot avoid summary judgment merely by proving that the injury could have been averted had Captain Noble received more or better training, i.e., training sufficient to equip him to avoid the particular conduct that resulted in injury. Id.; see also City of Canton, 489 U.S. at 391.
Mrs. Ross alleges that the Town's training of police officers was deficient in the following respects: the Town Board allocated no, or at least insufficient, monies for training; the training curriculum did not include "combat engagement" or "hostage negotiations;" and the Town Board did not insist that Chief Richey comply with police chief training required by state law. (Pl.'s Memo. in Opp. of Summ. J. at 11-15.) Although the Town Board did not provide a line item in its budget for police training and there is a dispute as to which governmental body paid for the training, the parties do not dispute that it did occur. (Cf. Pl.'s Resp. to Defs.'s Material Facts at ¶ 45 with Aff. of Donald Campbell, Clerk-Treasurer for Town of Austin; Pl.'s Resp. to Defs.'s Material Facts at ¶ 44 Defs.'s Resp. to Pl.'s First Req. for Produc. of Docs., at Req. #1, Ex. A B, Annual Reports of Training Status 1995-1999.) Therefore, Ross's argument that the "Austin Town Board was aware that no training was occurring," does not merit further consideration.
In support of her second allegation, Ross presents the affidavit of Charles Braun, a hostage negotiation specialist, who opined, based on a review of Captain Noble's training records, that he received inadequate training in "the proper use of force, apprehending dangerous fleeing felons, and the handling of hostage taking situations," and that this deficiency led directly to his failure to prevent Miller from shooting Kenneth Ross. (Evidence in Supp. of Pl.'s Memo. in Opp. of Summ. J., Ex. 5 at ¶ 16.)
Mrs. Ross acknowledges that Captain Noble completed basic training at the law enforcement academy. (Pl.'s Resp. to Defs.'s Material Facts at ¶ 44.) She argues, however, that because he was not required to receive special training in the areas of deadly force and hostage negotiation, his training was deficient. (Pl.'s Memo. in Opp. of Summ. J. at 13.) We cannot accept this reasoning, however, because "[t]o do so would ignore the training the officers did receive" and fall prey to the "more or better" scenario warned against in City of Canton. Palmquist v. Selvik, 111 F.3d 1332, 1345 (7th Cir. 1997).
State law governs the training of APD officers and requires each officer to complete a minimum of 16 hours of in-service training in each calendar year. Ind. Code Ann. § 5-2-1-9(g) (West 2002).
Such training may be in any subject area included in the law enforcement academy's basic training course or other job related subjects that are approved by the board. Id. (emphasis added). Captain Noble received at least the minimum amount of training for the calendar years 1995-1999. (Annual Reports of Training Status 1995-1999.) No argument was made in this case that the Indiana state standards for training police to handle the use of deadly force and hostage negotiations are in any way deficient under the Federal Constitution. See Palmquist, 111 F.3d at 1345; Johnson v. City of Milwaukee, 41 F. Supp.2d 917, 930 (E.D.Wis. 1999) (interpreting Tapia v. City of Greenwood, 965 F.2d 336, 339 (7th Cir. 1992), to hold that where the state imposes minimum training standards on municipalities, evidence showing adherence to those standards barred any finding that the city's policymakers were deliberately indifferent to the need for better training.) Johnson went on to find that, while it is possible that the state's minimum standards do not adequately address the issue raised by Plaintiff's expert, under Tapia, compliance by a municipality with state standards defeats any possibility that a reasonable jury could uphold a charge of deliberate indifference. 41 F. Supp.2d at 930. We concur with the reasoning in Johnson, and conclude, therefore, that summary judgment on this failure to train claim is warranted.
In addition, the APD Rules and Regulations ("Rules and Regs.") provide that "officers shall attend and comply with all training courses as may be set or designated by the Board of Police Commissioners and/or the Chief of Police," and that "all Police Officers will practice on the pistol range until they pass minimum requirements set by the Chief of Police for marksmanship." (Rules and Regs. at 16.) Captain Noble qualified his weapon each year. (Aff. of L. Noble, p. 93, l. 19-22.) With regard to the use of deadly force, the Rules and Regulations specify only how it must be limited; they do not mandate the use of deadly force under any circumstances. (Rules and Regs. at 18-19, 22-24.)
Our conclusion is supported by the fact that the Austin Police Department was unaware of any hostage situation occurring prior to February 28, 2000. (Dep. of M. Richey, Chief of Police, at p. 23- 25.) While a hostage situation is always theoretically possible, we find that Mrs. Ross has failed to allege facts from which a reasonable jury could find that the Defendants ignored a known and significant risk of death, and therefore, were deliberately indifferent to the need to train their officers in this "relevant respect." See Salazar, 940 F.2d at 238.
Ross's final argument in support of her failure to train claim is that Chief Richey, the "gatekeeper" of training policy, neither participated in the police chief executive training program nor identified the risk of constitutional injury posed by his failure to require, as part of the police training curriculum, the use of deadly force in combat situations and the handling of hostage situations. (Pl.'s Memo. in Opp. of Summ. J. at 23-30.) In addition, Ross argues that by refusing to insist that Chief Richey execute his duties to full extent of the law and department policy, the Town ratified his unconstitutional actions. (Pl.'s Memo. in Opp. of Summ. J. at 12-13.) Our finding that the municipality was not deliberately indifferent to the need for better training, however, renders this argument moot.
Mrs. Ross also alleges that Chief Richey is responsible in his individual capacity for the death of Kenneth Ross. An individual cannot be held liable under § 1983 unless he caused or participated in the alleged constitutional deprivation. Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir. 1996). As Chief Richey was involved in neither the decision to use deadly force nor the hostage negotiation, the only basis for a claim against him would be failure to train. Although we found above that the training Captain Noble received was not constitutionally deficient, Mrs. Ross alleges that Chief Richey remains liable because he did not attend the training for police chiefs mandated by Indiana law. See Ind. Code Ann. § 5-2-1-9(i)-(k) (West 2002). We find, however, that while Chief Richey's failure to attend the required police chief executive training program was unfortunate, Mrs. Ross has failed to demonstrate a sufficient causal nexus between the claimed injury and Chief Richey's failure to receive training related in large part to the specific administrative duties of the police chief. See City of Canton, 489 U.S. at 391-92 (discussing how the federal courts are ill-suited to predicting whether the injury could have been avoided had the officer been well-trained); Palmquist, 111 F.3d at 1346. In addition, while Chief Richey may have been negligent in cancelling his application to the training program in anticipation of retirement, the Constitution does not guarantee due care on the part of state officials. Daniels, 474 U.S. at 332.
Conclusion
Defendants Town of Austin, Town of Austin Police Department, and Police Chief Marvin Richey have moved for summary judgment, arguing that Plaintiff Tamra Ross could not establish a prerequisite to suit under § 1983, that Defendants violated a constitutional right of Plaintiff's decedent, Kenneth Ross. For the reasons explained above, we find that Kenneth Ross had no constitutional right to police protection from violent crime or to hostage negotiation services, and that even if he did, Captain Noble's decisions to refrain from using deadly force to disable a gunman, and to put the gunman in contact with his estranged wife during a hostage negotiation did not "shock the conscience" so as to create a constitutional injury. Therefore, as no underlying constitutional injury exists, it is clear that Plaintiff will be unable to satisfy the legal requirements necessary to establish her claim against Defendants for failure to train. Therefore, Defendants' Motion for Summary Judgment is GRANTED and both Plaintiff's and Defendants' Motions to Strike are DENIED as moot . . .It is so ORDERED this 23th day of September 2002.