Tamra Ross , individually v. Town of Austin , Indiana , Town of Austin , Indiana , Police Department

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3830
T AMRA R OSS , individually and as personal
representative of the Estate of Kenneth Wayne Ross,
Plaintiff-Appellant,
v.
T OWN OF A USTIN , I NDIANA , T OWN OF A USTIN ,
I NDIANA , P OLICE D EPARTMENT , and M ARVIN R ICHEY ,
Police Chief, Town of Austin, Indiana,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 01 C 15—Sarah Evans Barker, Judge.
____________
A RGUED A PRIL 17, 2003—D ECIDED S EPTEMBER 16, 2003
____________
Before B AUER , M ANION , and E VANS , Circuit Judges.
B AUER , Circuit Judge. Plaintiff-Appellant Tamra Ross
appeals the district court’s entry of summary judgment in
favor of the Town of Austin, Indiana, the Austin Police
Department (“APD”), and APD Chief Marvin Richey on
Tamra’s substantive due process claims alleging that APD
Officer Lonnie Noble’s inadequate training resulted in the

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2 No. 02-3830
murder by Gregory Miller of her husband, Kenneth Ross.
For the reasons set forth herein, we affirm the decision of
the district court.
BACKGROUND
Austin is a small town in Scott County, Indiana, with
a population of approximately 4500. Austin Police Officer
Lonnie Noble completed basic training at the Indiana Law
Enforcement Academy in 1995. At all times relevant for
purposes of this appeal, he had satisfied all state-mandated
training requirements and maintained his annual firearm
qualification. Neither Noble nor any other member of the
APD had received training in tactical combat weapons use
or hostage negotiations. At the time of the incidents giv-
ing rise to this litigation, Chief Richey had not completed a
state-mandated police chief executive training program nor
had the Town required him so to do. At his deposition,
Richey stated that his “philosophy is [that] the best training
is on the street.”
On the morning of February 28, 2000, while responding
to reported gunfire at an elementary school, Noble encoun-
tered a multiple-vehicle collision at an intersection near
adjacent convenience and liquor stores in Austin. At that
moment, Noble observed Gregory Miller, who had just at-
tempted to shoot his estranged wife as she shuttled their
children to school, exit one of the collided vehicles and,
armed with a shotgun, approach the convenience store.
Noble immediately entered the stores’ shared parking lot
to prevent Miller’s entry into the convenience store, exited
his police vehicle armed with a shotgun of his own, ordered
Miller to drop his raised weapon, and directed as many
as fifteen bystanders to “get down.” For his safety and
that of the bystanders, Noble, who was not wearing a bul-
letproof vest, took cover behind a truck parked near the

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No. 02-3830 3
convenience store entrance and observed Miller’s move-
ments from a distance of approximately twelve feet. From
this location, despite several opportunities to fire a clear
shot at Miller, Noble was unwilling to discharge his weapon
in such close proximity to the bystanders. Miller’s access to
the convenience store thus obstructed, he instead entered
the adjacent liquor store where he took Kenneth Ross, a
store manager, hostage.
Thereafter, Scott County law enforcement dispatchers
telephoned the liquor store. Miller informed them that he
would release Kenneth only if permitted first to speak with
his estranged wife, whom Noble then authorized the dis-
patchers to attempt to contact. Once connected, Miller’s
heated conversation with his wife ended abruptly with
a single gunshot. Richey arrived shortly thereafter and
ceded authority over the situation to the Indiana State
Police, who discovered the bodies of Kenneth and Miller in-
side with fatal gunshot wounds—Miller’s self-inflicted.
Tamra filed a civil action under 42 U.S.C. § 1983, alleging
that Appellees’ failure to provide Noble with tactical combat
and hostage negotiation training effected a violation of
Kenneth’s substantive due process rights under the Four-
teenth Amendment. Had Noble received such training, she
reasoned, he would have conducted himself in a way that
would have better protected Kenneth from Miller’s actions.
Such training might have led Noble, for example, to avoid
“channeling” Miller into the liquor store, to decide to shoot
Miller (perhaps because he would have selected a better
suited weapon or been wearing a bulletproof vest), or to
secure a peaceful resolution to the hostage situation. Based
upon its determination that, despite the tragedy of Ken-
neth’s murder, neither the decedent nor Tamra suffered any
constitutional injury, the district court granted Appellees’
motion for summary judgment.
This appeal ensued.

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4 No. 02-3830
ANALYSIS
We review the district court’s grant of summary judgment
de novo. See, e.g., Wainscott v. Henry, 315 F.3d 844, 848
(7th Cir. 2003). Summary judgment is proper where there
is no genuine issue as to any material fact. Such is the case
where the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect
to which she has the burden of proof, because a complete
failure of proof concerning an essential element of her case
necessarily renders all other facts immaterial. In such a
case, the moving party is entitled to judgment as a matter
of law and summary judgment must issue against the non-
moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); F ED . R. C IV . P. 56(c).
To establish a claim under 42 U.S.C. § 1983, a plaintiff
must demonstrate that some person acting under color of
state law deprived her of a constitutional right. See, e.g.,
Smith v. City of Chicago, 820 F.2d 916, 917 (7th Cir. 1987).
That Appellees and Noble acted under color of state law is
undisputed. Rather, the focus of our inquiry is whether
Tamra or Kenneth suffered a constitutional injury; namely,
a violation of the Due Process Clause of the Fourteenth
Amendment.
Tamra’s allegation of constitutional injury is founded
solely on her contention that Noble’s lack of training and
Richey’s failure to attend a mandatory police chief executive
training program, as well as his attitude toward police
training generally, demonstrate a systematic failure on the
part of Appellees to train police. Under this theory, such
training would have better prepared Noble to respond to
Miller’s actions by, for example, shooting Miller, or selecting
a different weapon, or wearing a bulletproof vest, or not

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No. 02-3830 5
1 Though the district court individually addressed each of
Tamra’s criticisms of Noble’s reaction to the situation, her claim
under 42 U.S.C. § 1983 fails absent a successful showing that Ap-
pellees maintained a policy of inadequately training APD officers.
Because, as a matter of law, she has made no such showing, we
need not address her criticisms of Noble’s actions individually.
placing Miller in contact with his wife, thereby avoiding
further agitation of Miller and endangerment of Kenneth. 1
The Supreme Court has held that “the inadequacy of
police training may serve as the basis for § 1983 liability
only where the failure to train amounts to deliberate indif-
ference to the rights of persons with whom the police come
into contact.” Canton v. Harris, 489 U.S. 378, 388 (1989).
This Court has further explained that a “finding of ‘deliber-
ate indifference’ is derived from [a municipality’s] failure to
act in the face of ‘actual or constructive notice’ that such a
failure is likely to result in constitutional deprivations.”
Robles v. City of Fort Wayne, 113 F.3d 732, 735 (7th Cir.
1997). Tamra reasons that the APD’s awareness of past
armed robberies placed Appellees on notice that constitu-
tional violations—namely deprivation of life without due
process of law—were likely to result to Austin citizens
absent the training of APD officers in tactical combat
weapons use and hostage negotiations. However, 42 U.S.C.
§ 1983 imposes upon municipalities no constitutional duty
to provide law enforcement officers with advanced, special-
ized training based upon a general history of criminal
activity in the community. Here, the fact that APD officers
had dealt with armed felons in the past did not obligate
Appellees to anticipate the utility of hostage negotiation or
tactical combat training. In the context of a failure-to-train
claim, deliberate indifference does not equate with a lack of
strategic prescience.
The fact that Noble, a police officer in a town with a pop-
ulation of fewer than 5000, completed training from the

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6 No. 02-3830
Indiana Law Enforcement Academy and had met all other
statutorily mandated training standards, is further evi-
dence that, as a matter of law, it was not the policy of
Appellees inadequately to train police officers. By creating
a law requiring municipalities to exceed the standards for
police training established by state law, not only would this
court exceed the scope of our judicial authority by usurping
the policy-making authority of state legislators, but we
would also impose upon smaller municipalities such as
Austin, the untenable burden of maintaining the same
standards of law enforcement training specialization as
those of large cities or even national armies. Even were it
within the province of this court to establish such a policy,
it seems neither wise nor practical.
Finally, neither Richey’s preference for “street” training
of police officers nor his failure to attend a mandatory
state training program for chiefs of police evinces an official
policy of inadequately training APD officers or a deliberate
indifference to the constitutional rights of the citizens of
Austin. It does not follow logically from Richey’s more
favorable opinion of the value of on-the-job experience that
he or the APD eschewed formal training as a matter of pol-
icy. Nor does his own failure to attend the mandatory train-
ing program demonstrate that he, the APD, or the Town
had adopted a policy of failing to train Noble or other
officers. Tamra does not suggest, and we do not discern,
what constitutional harm might have been avoided by
Richey’s attendance of the training program.
CONCLUSION
Kenneth Ross was the unfortunate victim of the actions
of a disturbed, homicidal individual. He was not, however,
the victim of any constitutional injury. For this reason,

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No. 02-3830 7
Tamra Ross’s claim under 42 U.S.C. § 1983 cannot with-
stand summary judgment.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-16-03

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