Failure to train ruling: Officer's alleged reckless driving in non-emergency situation results in civilian fatality
Seventh Circuit reverses lower court dismissal of civil rights lawsuit and reinstates officer and city as proper defendants
In the early morning hours of July 20, 2018, five South Bend (Indiana) Police Department (SBPD) officers were conducting an anti-crime operation in three separate police vehicles. One of the vehicles, containing two officers, was unmarked, with no lights and siren and communicating with the other two vehicles through a tactical radio channel. Another participating vehicle contained one officer and was fully marked and equipped with lights and siren. The third vehicle contained the other two officers and although unmarked, was equipped with lights and siren.
The officers in the unequipped and unmarked unit spotted a speeding driver and notified their companion units over the tactical channel that they planned to stop it. The other two units acknowledged the broadcast and moved to assist in the stop.
None of the officers in the anti-crime operation indicated that they faced an emergency, and none requested assistance from other officers outside their own group. Nonetheless, SBPD Officer Gorny, not a participant in the anti-crime operation, overheard communications between the anti-crime officers about the impending traffic stop and decided to assist.
Gorny was two miles away when he unilaterally decided to intervene. He traveled through a residential neighborhood at 78 mph while making infrequent use of his lights and siren. The speed limit through the neighborhood was posted at 30 mph. He accelerated to a speed of 98 mph and approached an intersection with an obstructed view. He disregarded a red light and proceeded into the intersection. He crashed into Erica Flores’ car that was proceeding through the intersection on a green light. Ms. Flores was killed in the crash.
The Flores lawsuit
The Flores Estate (Estate) sued Officer Gorny and the City of South Bend pursuant to 42 U.S.C. §1983 (federal civil rights statute) and alleged that Gorny’s actions violated the substantive 14th Amendment due process rights of Ms. Flores.  Further, the Estate alleged that the City was liable for failure to adequately train its police officers.
The federal district court (trial court) judge dismissed the suit against both defendants and the Estate filed an appeal to the U.S. Court of Appeals for the Seventh Circuit. The Seventh Circuit reversed as to both Gorny and the City.
The opinion of the Seventh Circuit regarding Officer Gorny
The court first set forth the standard for judging Gorny’s actions. The court stated that the Estate must allege and prove that Gorny’s conduct rose to the level of “criminal recklessness,” which the court described as the equivalent of “deliberate indifference.” The court explained that the key question in evaluating whether an officer has violated substantive due process rights is “whether the officer ‘had sufficient knowledge of the danger’ such that ‘one can infer he intended to inflict the resultant injury.’” 
The court observed that “[w]ith no justification, Gorny chose to race through a residential area with a posted speed limit of 30 miles per hour at rates of speed between 78 and 98 miles per hour.” The court noted that “it was too late to control [his] car when he reached the [critical] intersection … and charged through, despite the obstructed view. The result, … was that Flores, innocently driving in accordance with the traffic signals, was hit and killed.”
Based upon the given facts, the court determined that a jury could find that Gorny knew of the dangerous risk he created and displayed criminal recklessness/deliberate indifference to a known risk.
The opinion of the Seventh Circuit regarding the city
The court initially stated that a municipality cannot be liable pursuant to §1983 for the constitutional misdeeds of one of its employees. Municipal liability pursuant to §1983 will only be found where “the City itself caused a constitutional violation.” Here, the Estate alleges that the City violated the constitutional rights of the decedent by failing to train its police officers to refrain from reckless driving.
The court observed that the U.S. Supreme Court first recognized that municipalities can be liable for failure to train police officers in Canton v. Harris.  In Canton, the Supreme Court ruled that a municipality can be found constitutionally liable for failure to train only when its actions or omissions reach the level of “deliberate indifference.” The Seventh Circuit further observed that the Supreme Court provided additional guidance regarding failure to train municipal liability in Board of County Commissioners of Bryan County v. Brown.  The Seventh Circuit noted that the Supreme Court explained in Brown that inadequate training liability can arise when a municipality adheres to a training regimen “that they know or should know has failed to prevent tortious conduct by employees.” 
However, the Seventh Circuit explained that “failure to train liability does not require proof of widespread constitutional violations before that failure becomes actionable; a single violation can suffice where a violation occurs, and the plaintiff asserts a recurring, obvious risk.”
The court concluded, based upon the Supreme Court decision in Brown, that failure to train municipal liability is possible for one unconstitutional violation by a lower-level employee even in the absence of a pattern of similar misconduct.  Here failure to train liability is possible when the need for more or better training was patently obvious and the municipal response was inadequate or non-existent.
Potential liability for the City of South Bend
In the instant matter, the Seventh Circuit considered the following allegations of the Flores’ Estate to justify its decision to reverse the district court’s dismissal of the case against the City of South Bend:
The City had actual knowledge that both officer Gorny and South Bend officers in general had a history of reckless speeding.
- The City had a “de facto policy” of encouraging reckless driving by its police officers.
- South Bend night shift officers frequently drove above 50 mph, well above posted speed limits.
- Officer Gorny operated his police vehicle on at least three occasions prior to the Flores’ incident at high rates of speed (60, 70 and 114 mph).
- The SBPD instructed its officers to operate police vehicles in non-emergency situations up to a maximum speed of 50 mph but never reprimanded any officer for noncompliance or required remedial training for those caught violating this instruction.
The court ruled regarding the City that a “municipality can be held liable under a theory of failure to train if it has actual knowledge of a pattern of criminally reckless conduct and there is an obvious need to provide training to avert harm, even if the prior acts have yet to result in tragedy.” With respect to Officer Gorny the court stated, “Driving with deliberate indifference to the consequences … in effect turning oneself into a speeding bullet – can reach the level of criminal recklessness before the worst happens.” Both the City and Officer Gorny were reinstated as defendants in this matter.
1. Flores v. City of South Bend, (No.20-1603) (7th Cir. 2021).
2. (Quoting) Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996).
3. 489 U.S. 378, 388 (1989).
4. 520 U.S. 397 (1997).
5. Id. at 407. Such knowledge can be proven by establishing a pattern of similar past misconduct which was not remedied through the institution of new or better training.
6. Id. at 409. See also, Connick v. Thompson, 563 U.S. 51, 64 (2011) in which the Supreme Court stated, “We sought not to foreclose the possibility … that the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under §1983 without proof of a p