In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3830

TAMRA ROSS, individually and as personal

representative of the Estate of Kenneth Wayne Ross,

Plaintiff-Appellant,

v.

TOWN OF AUSTIN, INDIANA, TOWN OF AUSTIN,

INDIANA, POLICE DEPARTMENT, and MARVIN RICHEY,

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.

 ____________

ARGUED APRIL 17, 2003—DECIDED SEPTEMBER 16, 2003

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Before BAUER, MANION, and EVANS, Circuit Judges.

BAUER, 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
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 giving 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 encountered 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 attempted 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 bulletproof vest, took cover behind a truck parked near the
No. 02-3830 3

convenience store entrance and observed Miller’s movements 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 dispatchers 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 inside 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 Fourteenth 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 Kenneth’s murder, neither the decedent nor Tamra suffered any

constitutional injury, the district court granted Appellees’

motion for summary judgment.

This appeal ensued.
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 nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986); FED. R. CIV. 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
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 Appellees 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 indifference 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 ‘deliberate 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 constitutional 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, specialized 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 population of fewer than 5000, completed training from the
6 No. 02-3830

Indiana Law Enforcement Academy and had met all other

statutorily mandated training standards, is further evidence 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 policy. Nor does his own failure to attend the mandatory training 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,
No. 02-3830 7

Tamra Ross’s claim under 42 U.S.C. § 1983 cannot withstand summary judgment.

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-16-03