Failure to Tailor Fit Training Program To Officer’s Fitness Does Not Violate Due Process

Bruce Feirson was a police officer with the District of Columbia Metropolitan Police Department. Feirson had a history of back problems dating to 1979.

In 1999, the Department required its officers to be certified to use a new retractable baton made by Armament Systems and Procedures, Inc. (the ASP). ASP training had three parts: Two to three hours of classroom instruction; two to three hours of physical conditioning exercises, including drills on various strikes and deflection modes; and a 90- to 120-second “attack exercise.” To successfully complete the attack exercise, the trainee had to use a foam-covered version of the ASP to fend off an instructor pretending to be a violent suspect. The trainee wore protective headgear and a mouthpiece while his attacker wore a padded “hit suit” to absorb the blows the trainee delivered with the ASP.

Feirson participated in ASP training on April 27, 2000. Already winded from the preceding exercises, he tried to fake his way through the attack exercise portion. First, he tried to clutch his attacker until the time ran out. By closing the distance, Feirson thought he could muffle the attacker’s punches and kicks. The instructor timing the exercise foiled this plan, however, when he stopped the clock, separated Feirson and his attacker, told Feirson to swing the ASP more, and then restarted the exercise. Next, Feirson tried, in his words, to “get back on the rope.” He hoped to hide near the edge of the ring, but his comrades shoved him back in when he came too close to their shields. Meanwhile, the attacker pursued him, continuing to throw punches and kicks. During the fray, the attacker struck Feirson in the face, causing his head to jerk backwards.

The entire episode lasted over a minute, but less than two. It ended when the attacker, recognizing Feirson “had enough,” stopped the exercise. Feirson suffered serious neck and lower back injuries as a result of the training exercise, and was required to undergo spinal surgery. Feirson became eligible for disability retirement because of his injuries, and subsequently retired. He also brought a lawsuit against the District alleging that the training exercise constituted a violation of his “substantive due process” rights.

A federal appeals court dismissed Feirson’s lawsuit. The Court found that the standard in a “substantive due process” case is “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. Most likely to rise to that level is conduct intended to injure in some way unjustifiable by any governmental interest.”

The Court was unconvinced that Feirson could meet this standard of proof. The Court concluded that “at most a jury could find the instructors negligent, which is categorically beneath the threshold of constitutional due process. And even a finding of negligence would be a stretch. The attack exercise followed several hours of classroom and practical instruction on how to use the ASP. Feirson wore protective headgear and a mouthpiece, and the attacker’s hands and feet were padded. The exercise was timed and took place on mats. When, after about a minute during which Feirson had maneuvered to escape the blows, it appeared he had enough, the attacker ended the exercise. Feirson admits he suffered no cuts or bruises, and he had no reason to believe the attacker was trying to hurt him. Although the exercise was not geared to Feirson’s fitness level, that was because it was designed to prepare police officers to handle real-life situations.”

Feirson v. District of Columbia, 2007 WL 3145355 (D.C.App. 2007).

This article appears in the December 2007 issue