Officer Loses Due Process Claim For Injury Suffered During Training

Tracy Moore is a police officer with the City of Evans, Colorado. Moore was injured when a bullet flew up between his police officer’s “riot helmet” during an intense “live fire” training exercise with other police officers. The injury caused Moore to lose 57% of his vision in one eye.

The exercise was part of the Department’s firearms training program, and it simulates various “live fire” scenarios, where officers switch off playing the roles of perpetrators and policemen. The training exercise is meant to replicate combat scenarios that a police officer might encounter on the street.

What makes the exercise realistic is the use of “Simunition,” a highly-specialized live ammunition specifically designed to replace the standard live ammunition in police officers’ personal service weapons. Simunition uses smokeless gun powder as a propellant, and fires a plastic, liquid-filled bullet-shaped projectile which shatters on impact, marking the target with brightly colored liquid.

Simunition’s manufacturer has developed a line of protective equipment to be worn when training with Simunition rounds. The protective equipment includes a face mask which provides 360-degree head coverage and fits closely around the neck and chin without gaps. Though three different firearms instructors told the City’s police chief that the manufacturer required its own face mask to be worn during exercises with Simuntion rounds, the Chief did not authorize purchasing any of the equipment. Instead, the Chief authorized using “riot helmets” during the firearms training. Riot helmets cover the head above the neck, and incorporate a clear plastic shield which extends from the front of the helmet, straight down in front of the wearer’s face. Riot helmets do not protect the neck or the throat, and are positioned such that a gap of approximately three inches exists between the wearer’s face and the plastic shield.

After his injury, Moore sued the City, alleging a violation of his due process right to “bodily integrity.” The federal Tenth Circuit Court of Appeals rejected Moore’s lawsuit.

The Court began by noting that the United States Supreme Court “has declined to extend due process protection to safe working conditions.” Thus, the Court concluded, Moore could not be said to have a “right to bodily integrity and a safe working environment,” and his due process claim necessarily must fail.

Moreover, the Court found that the essence of Moore’s claim – a violation of his substantive due process rights – required Moore to establish that the Chief’s decision not to authorize the purchase of Simunition gear “shocked the conscience.” In the eyes of the Court, Moore was “asking us to play Monday morning quarterback about a decision that seems, at most, negligent. This type of second guessing a rational decision-making process that takes into account competing social, political, and economic forces is specifically cautioned against by the Supreme Court. We acknowledge that the conscience-shocking standard is difficult to define and to pinpoint. While we do not wish to understate Moore’s injury, it was the result of allowing a risk, perhaps not even an unreasonable one, to persist in the workplace. It is not necessarily conscience shocking.”

Moore v. Guthrie, 2006 WL 401821 (10th Cir. 2006).

This article appears in the April 2006 issue