When Acting Secretary of Homeland Security Chad Wolf came to Portland, Oregon on Thursday an internal DHS memo was waiting for him. That memo clearly states that the DHS personnel recently deployed to Portland for the primary purpose of crowd control are not trained in crowd control. The relevant portion of the memo reads:
"The highly skilled tactical teams assigned to support the civil unrest and riots do not specifically have training in riot control or mass demonstrations. Moving forward, if this type of response is going to be the norm, specialized training and standardized equipment should be deployed to responding agencies." - Department of Homeland Security
The author of the memo remains unknown to us because the copy we have was not signed. It just said "Name, Title (Component Deputy Chief or higher)" which leads us to believe that the leaked document was a draft. We were not even sure if it was real until reading about it in the mainstream news today. The thought of DHS deploying officers untrained in crowd control is both unconscionable and tragically unsurprising. Typical of the Trump Administration, they deploy people that are not competent to deal with a situation that the President himself is not competent to handle.
Does this lack of training open the door to new legal options? If a state agency were to deploy untrained personnel and that action caused injuries, such failure to train would be grounds for deliberate indifference under 42 U.S.C. 1983 (deprivation of civil rights under color of state law). According to the Supreme Court "a municipality's failure to train its employees in a relevant respect must amount to deliberate indifference to the rights of persons with whom the untrained employees come into contact. Only then can such a shortcoming be properly thought of as a city policy or custom that is actionable under 1983" (https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol_32/november-2013/_failure-to-train-lawsuits-against-departments-of-human-services/). Deliberate indifference was defined by the Supreme Court in Farmer v. Brennan, 511 U.S. 825 (1994) (https://supreme.justia.com/cases/federal/us/511/825/):
(b) Deliberate indifference entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly. However, this does not establish the level of culpability deliberate indifference entails, for the term recklessness is not self-defining, and can take subjective or objective forms. Pp.835-837.
(c) Subjective recklessness, as used in the criminal law, is the appropriate test for "deliberate indifference." Permitting a finding of recklessness only when a person has disregarded a risk of harm of which he was aware is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in this Court's cases. The Eighth Amendment outlaws cruel and unusual "punishments," not "conditions," and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court's cases. Petitioner's invitation to adopt a purely objective test for determining liability-whether the risk is known or should have been known-is rejected. This Court's cases "mandate inquiry into a prison official's state of mind," id., at 299, and it is no accident that the Court has repeatedly said that the Eighth Amendment has a "subjective component." Pp.837-840.
(d) The subjective test does not permit liability to be premised on obviousness or constructive notice. Canton v. Harris, 489 U. S. 378, distinguished. However, this does not mean that prison officials will be free to ignore obvious dangers to inmates. Whether an official had the requisite knowledge is a question of fact subject to demonstration in the usual ways, and a factfinder may conclude that the official knew of a substantial risk from the very fact that it was obvious. Nor may an official escape liability by showing that he knew of the risk but did not think that the complainant was especially likely to be assaulted by the prisoner who committed the act. It does not matter whether the risk came from a particular source or whether a prisoner faced the risk for reasons personal to him or because all prisoners in his situation faced the risk. But prison officials may not be held liable if they prove that they were unaware of even an obvious risk or if they responded reasonably to a known risk, even if the harm ultimately was not averted. Pp.840-845.
If the federal officers deployed to Portland were sent by an agency that should have known that sending untrained officers would result in injury then that agency would be liable under Section 1983. Unfortunately, Section 1983 does not apply to federal officers. To challenge their actions one must file suite against the United States under the Federal Tort Claims Act (FTCA) or the individual officers under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (https://supreme.justia.com/cases/federal/us/403/388/). To sue the United States one must prove that their officers acted within the scope of 28 U.S. Code 2680(h) which waives sovereign immunity in cases involving "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." So, if one can prove that a federal officer assaulted, battered, falsely imprisoned, falsely arrested, abuse the legal process, or maliciously prosecuted someone the United States can be held liable. Unfortunately, one must also prove that federal officers were "acting within the scope of his office or employment." See Millbrook v. United States (2013) (https://caselaw.findlaw.com/us-supreme-court/11-10362.html). The good news for plaintiffs in Oregon is that the federal officers deployed to Portland are clearly operating within the scope of their employment and high ranking officials are aware of it. Unfortunately, failure to train or deploying untrained personnel are not actions that the United States has waived sovereign immunity for, so to hold the United States liable for using excessive force they must prove that the conduct constitutes an assault or a battery. Excessive force by itself including violations of Constitutional rights are not cognizable under the FTCA.
When a federal officer violates the Constitution they are considered to be acting in their individual capacity because violating the Constitution is not considered to be within the scope of their duties, so the United States is immune because sovereign immunity has not been waived. The only remedy is to sue the officers responsible in their individual capacities under Bivens.
This author speaks from personal experience as the plaintiff in a FTCA claim against the United States for batteries inflicted upon his person by federal correctional officers at the United States Penitentiary in Victorville, California. That suit also includes a parallel Bivens suit against the individual officers for violating his Eighth Amendment right to cruel and unusual punishment.