Marilyn ALLEN, Personal Representative of Terry Allen, deceased, Plaintiff-Appellant, v. MUSKOGEE, OKLAHOMA, a municipal corporation; Don Smith, Bentley McDonald, Brian Farmer, and James Crull, Defendants-Appellees.
No. 96-7021.
United States Court of Appeals, Tenth Circuit.
July 17, 1997.
119 F.3d 837
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
Juliet N. Brennan, Albert R. Matthews, Bonds, Matthews, Bonds & Hayes, Muskogee, OK, for Plaintiff-Appellant. Woodrow K. Glass (Reggie N. Whitten, with him on the brief), Mills & Whitten, Oklahoma City, OK, Jim T. Priest, David Walls, and Cathy A. Warden, McKinney, Stringer & Webster, P.C., Oklahoma City, OK, for Defendants-Appellees.
Plaintiff-Appellant Marilyn Allen appeals from an adverse ruling on her civil rights claim under
Background
On the morning of February 20, 1994, Terry Allen left his home after an altercation with his wife and children. He took ammunition and several guns with him, and later parked in front of the Muskogee residence of his sister, Rhonda Lee-Oakley. The altercation was reported to the Wagoner County Sheriff‘s Department, which sent a teletype to the Muskogee Police Department (MPD), describing Mr. Allen and his car and advising that Mr. Allen was armed and had threatened family members. The teletype also advised that there was a 1983 warrant outstanding for Mr. Allen‘s arrest for impersonating an officer. Lt. Donald Smith of the MPD relayed the information to other officers during a squad meeting at 1:30 p.m.
Some time after the meeting, Lt. Smith was advised that Mr. Allen might be at his sister‘s house in Muskogee. Before he could meet with other officers, a radio dispatcher advised him that a 911 call had beеn made from Ms. Oakley‘s home and that Mr. Allen was threatening suicide. Lt. Smith proceeded to the Oakley home, approached the bystanders who were standing near Mr. Allen‘s vehicle, and ordered them to step back, which they did. Mr. Allen was sitting in the driver‘s seat with one foot out of the vehicle. He had a gun in his right hand, which was resting on the console between the seats.
As Lt. Smith repeatedly told Mr. Allen to drop his gun, Officer Bentley McDonald arrived and joined Lt. Smith at the driver‘s side door. Lt. Smith then reached into the vehicle and attempted to seize Mr. Allen‘s gun, while Officer Bentley held Mr. Allen‘s left arm. Officer Bryan Farmer, who arrived with Officer Bentley, apрroached Mr. Allen‘s car from the passenger side, and attempted to open a passenger side door. Mr. Allen reacted by pointing the gun toward Officer Farmer, who ducked and moved behind the car. Mr. Allen then swung the gun toward Lt. Smith and Officer McDonald, and shots were exchanged. Lt. Smith and Officer McDonald fired a total of twelve rounds into the vehicle, striking Mr. Allen four times. The entire sequence, from the time Lt. Smith arrived to the time Mr. Allen was killed, lasted approximately ninety seconds.
Plaintiff brought this
Discussion
We review the grant of summary judgment de novo, and apply the same legal standard used by the district court under
The moving party need not affirmatively negate the nonmovant‘s claim in order to obtain summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2551-52, 91 L.Ed.2d 265 (1986). Instead, the movant only bears the initial burden of “showing“—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party‘s case.” Id. at 325, 106 S.Ct. at 2554.
In granting summary judgment, the district court went beyond the agreed-upon facts and made its own findings. The court found, for example, that the officers knew that Mr. Allen had claimed to have killed three people before arriving at his sister‘s home. Whether the officers knew does not alter our review, but Plaintiff is correct in pointing out that the court‘s finding is not supported by the record.
Although the Supreme Court has said that findings of fact are sometimes helpful to an appeals court on summary judgment review, Anderson, 477 U.S. at 250 n. 6, 106 S.Ct. at 2511 n. 6, the district court on summary judgment should determine “whether ... there are any genuine factual issues that properly can be resolved only by a finder of fact,” id. at 250, 106 S.Ct. at 2510. In this sense, traditional “findings of fact” are inappropriate in a summary judgment order, because if summary judgment is proper no findings of fact need be made and the case can be resolved as a matter of law. We read Anderson to mean only that it may be helpful when the district court summarizes undisputed facts. See Regalado v. City of Commerce City, 20 F.3d 1104, 1108 n. 1 (10th Cir.1994) (findings of fact are not required, but the reasons for granting summary judgment should be stated in the record).
I. The Individual Officers
We analyze a
The excessive force inquiry includes not only the officers’ actions at the moment that the threat was presented, but also may include their actions in the moments leading up to the suspect‘s threat of force. Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir.1995). Of course, the use of force must be judged from the perspective of a reasonable officer “on the scene,” who is “often forced to make split-second judgments ... about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. at 1871-72. However, as we stated in Sevier: “[t]he reasonableness of Defendants’ actions depends both on whether the officers were in danger at the precise moment that they used force and on whether Defendants’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” 60 F.3d at 699. We will thus consider an officer‘s conduct prior to the suspect‘s threat of force if the conduct is “immediately connected” to the suspect‘s threat of force. Romero v. Board of County Comm‘rs, 60 F.3d 702, 705 n. 5 (10th Cir.1995), cert. denied, 516 U.S. 1073, 116 S.Ct. 776, 133 L.Ed.2d 728 (1996); Bella v. Chamberlain, 24 F.3d 1251, 1256 n. 7 (10th Cir.1994), cert. denied, 513 U.S. 1109, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995); see also Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 1699-700, 85 L.Ed.2d 1 (1985)(objective reasonableness inquiry requires courts to examine “whether the totality of the circumstances justified a particular sort of search or seizure“).
The Defendants have not shown that there is a lack of a genuine issue of material fact with regard to the officers’ reasonableness. See Celotex, 477 U.S. at 325, 106 S.Ct.
Appellees label these disputеs as “minor,” but the substantive law indicates otherwise. See Romero, 60 F.3d at 705 n. 5 (an officer‘s conduct prior to the suspect‘s threat of force is relevant if the conduct is “immediately connected” to the suspect‘s threat of force). The entire incident, from the time Lt. Smith arrived to the time of the shooting, took only ninety seconds. Clearly, the officers’ preceding actions were so “immediately connected” to Mr. Allen‘s threat of force that they should be included in the reasonableness inquiry. The differences in eyewitness testimony regarding the officers’ approach are therefore material factual disputes. Anderson, 477 U.S. at 248, 106 S.Ct. at 2509 (holding that the substantive law determines whether a disputed fact is material).
The disputes are not only material, but they are also genuine. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2509. While we express no opinion on the merits, a reasonable jury could conclude on the basis of some of the testimony presented that the officers’ actions were reckless and precipitated the need to use deadly force. See Sevier, 60 F.3d at 699.
BRISCOE, Circuit Judge.
II. The City of Muskogee
The plaintiff also claimed the City of Muskogee was liable under
Once the moving party has carried its burden,
“[T]he inadequacy of police training may serve as a basis for
The first requirement is satisfiеd here because, as concluded in Section I of this opinion, there was evidence in the record to support the claim that the officers exceeded constitutional limitations on the use of force. As regards the second requirement, exhibits presented to the district court contained evidence that it was common for officers to have to deal with mentally ill or emotionally disturbed people and people under the influence of drugs or alcohol. Nor is it uncommon for officers to have to deal with persons armed with deadly weapons. Thus, there was evidence that the use of force arose under circumstances that constituted a usual and recurring situation with which police officers must deal.
The third requirement is also satisfied. The record supports an inference that the training demonstrates a deliberate indifference on the part of the City toward people with whom the police come into contact. In Canton, the Court explained when inadequate police training constitutes city policy:
[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likеly to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.
489 U.S. at 390, 109 S.Ct. at 1205. The Court noted:
For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task Thus, the need to train officers in thе constitutional limitations on the use of deadly force, can be said to be “so obvious,” that failure to do so could properly be characterized as “deliberate indifference” to constitutional rights.
Id., n. 10, 109 S.Ct. at 1205 (citation omitted).
There was evidence presented to the district court that the officers received inadequate training on how to deal with mentally ill or emotionally upset persons who are armed with firearms. Plaintiff relied principally on her expert witness, Dr. George Kirkham, a former police officer and college professor and now a consultant on police and security matters. The record does not show that defendants challenged Dr. Kirkham‘s qualifications as an expert on police tactics and procedures.
Dr. Kirkham testified in his deposition that the officers’ actions were reckless and totally contrary to proper police practices for dealing with armed mentally ill or emotionally upset persons. According to Dr. Kirkham, all authorities on police tactics and procedures, in both the law enforcement and expert witness communities, agree it is not appropriate to leave cover and approach a suicidal armed person to try to take away a gun. Such action is likely to provoke a violent response, resulting in a high risk of death to officers, the armed person, and other civilians. Dr. Kirkham stated the proper procedure would have been for the officers to take cover behind their police cars, to ask the people standing by Allen‘s car to come toward them in order to get them out of harm‘s way and to obtain information, and then to try to communicate with Allen from a safe position without doing anything aggressive that could provoke a violent response.
Dr. Kirkham was highly critical of the officers’ training:
I don‘t believe you‘ll find any reputable expert in the United States, no one that I know of, that could possibly take the position in contradiction of virtually every piece of training material that I have ever seen that says you handle it in this way. These are such well established principles. I don‘t think a reputable specialist could say, “Hey, yeah. You walk-up to the situation, in open, keep trying to grab the gun.”
It is just reckless behavior.
Appellant‘s append. III at 572. He stated if the officers were trained to respond to this kind of call by staying in the open, leaving innocent people in the open, and doing provocative things like trying to grab the gun and get into the car, the training was “out of synch with the entire United States in terms of what police are being trained to do.” Id. at 576.
To my knowledge, I‘m not aware of any significant debate in the law enforcement or expert witness community about the fundamental principles we‘re talking about here. Cover is better than no cover. Communicating from a safe distance is better than not. Getting innocent people as safely out of the way as possible is desirable. Not engaging in certain actions with mentally disturbed armed people, not getting close to them is preferable.
I‘ve never heard any knowledgeable debate or argument about any of those subjects in the 25 years I‘ve been doing this type of work.
Id. at 580. Referring to the training provided the officers through a state program, Dr. Kirkham stated:
If the State of Oklahoma through CLEET trains their officers to not be mindful of cover, to be aggressive with mentally ill people, do all these things that are totally off the board, then the State is wrong and out of synch with the rest of thе country in the police profession.
Id. at 592-93.
When read as a whole and viewed in the light most favorable to the plaintiff as the party opposing summary judgment, the record supports an inference that the City trained its officers to leave cover and approach armed suicidal, emotionally disturbed persons and to try to disarm them, a practice contrary to proper police procedures and tactical principles.
The testimony of Lieutenant Brook and Lieutenant Smith and the affidavit of Glen McIntyre support an inference that the content of the training was inadequate. The City points to evidence that the officers completed many hours of training, including training on use of deadly force and dealing with upset or mentally disturbed people, but that cannot rebut the inference that the training was inadequate because it does not address the content of that training.
Relying on Evers v. General Motors Corp., 770 F.2d 984 (11th Cir.1985), the City argues Kirkham‘s deposition must be disregarded as insufficient to raise genuine issues of material fact regarding the adequacy of the training. In Evers, the court held a four-paragraph affidavit by plaintiff‘s expert witness was insufficient to create genuine issues of material fact because its conclusory allegations were not based on specific facts. Dr. Kirkham‘s deposition is not comparable to the brief conclusory affidavit in Evers. The deposition is over 300 pages in length and
Dr. Kirkham characterized the officers’ actions in this case as diametrically opposed to proper police procedures, out of synch with the rest of the police profession, and “plain foolishness.” Because there was evidence that the officers acted in accordance with their training, his criticism also applied to their training. When viewed in the light most favorable to the plaintiff, the record contains evidence that the officers were trained to act recklessly in a manner that created a high risk of death. The evidence is sufficient to support an inference that the need for different training was so obvious and the inadequacy so likely to result in violation of constitutional rights that the policymakers of the City could reasonably be said to have been deliberately indifferent to the need.1
As regards the fourth requirement, there was evidence of a direct causal link between the training and the alleged constitutional deprivation. According to Dr. Kirkham, approaching and trying to grab a gun from an emotionally disturbed, suicidal person created a high risk of death for officers, the armed person, and other civilians, and was reckless. There was evidence the officers were trained to act in such manner and, thus, were trained to do precisely the wrong thing. The causal link between the officers’ training and the alleged constitutional deprivation is more direct than in cases in which officers are not given enough training to know the correсt response to a dangerous situation. Dr. Kirkham attributed the incident to improper training, stating: “[I]f police trainers in the State of Oklahoma are using this case as an example of how you properly handle a mentally ill individual, then police officers will assuredly die, and other mentally ill people and probably innocent people will die.” Appellant‘s append. III at 574. It was his opinion that if the officers had been properly trained in the fundamental principles of maintaining a covered position and trying to communicate with armed emotionally upset persons rather than approaching and physically attempting to disarm them, the incident would not have happened.
Because there was evidence supporting each of the requirements of Canton, as explained in Zuchel, the district court erred in entering summary judgment in favor of the City. City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), does not require a different conclusion. In Tuttle, the Court held it was error to instruct a jury it could infer from a single incident of unusually excessive force that the constitutional violation was attributable to a city policy of inadequate training or supervision. Here, plaintiff does not rely solely on proof of the single incident to support an inference that the incident was caused by inadequate training and that the inadequate training wаs city policy. She relies on evidence that the officers followed police training in recklessly rushing Allen‘s car and trying to disarm him. Tuttle and Canton do not require evidence of more than one incident to establish a policy of inadequate training and that the training caused the constitutional
Nor does Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626, require a different result. The case before us is within the “narrow range of circumstances” recognized by Canton and left intact by Brown, under which a single violation of federal rights may be a highly predictable consequence of failure to train officers to handle recurring situations with an obvious potential for such a violation. The likelihood that officers will frequently have to deal with armed emotionally upset persons, and the predictability that officers trained to leave cover, approach, and attempt to disarm such persons will provoke a violent response, could justify a finding that the City‘s failure to properly train its officers reflected deliberate indifference to the obvious consequence of the City‘s choice. The likelihood of a violent response to this type of police action also may support an inference of causation—that the City‘s indifference led directly to the very consequence that was so predictable.
REVERSED and REMANDED.
KELLY, Circuit Judge, dissenting in part.
I respectfully dissent from Section II of the court‘s opinion. Permitting this case against Muskogee to go forward reverses the burden that the Supreme Court has deliberately chosen to place on the party opposing a motion for summary judgment. It also is inconsistent with the strict standard placed upon
The court views this case as one in which “evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation ... trigger[s] municipаl liability.” Brown, 520 U.S. at 409, 117 S.Ct. at 1391 (citing Canton, 489 U.S. at 390 & n. 10, 109 S.Ct. at 1205). Although sufficient evidence of a single violation of federal rights exists, Ms. Allen has not made any showing—much less a sufficient showing—of an inadequate policy, nor is there proof that the allegedly inadequate policy presented such an “obvious potential” for constitutional harm that liability can or should be triggered.
The evidence is insufficient to establish the inadequacy of Muskogee‘s training because absolutely no evidence exists regarding the content of Muskogee‘s training. The court observes that none of the evidence in this case addresses the content of Muskogee‘s training, and assumes that it was Defendants’ burden to put forward that content. See Ct. Op. at 843. The summary judgment standard, however, clearly places that burden on Ms. Allen. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2551, 91 L.Ed.2d 265 (1986) (stating that the plain language of
Even assuming that Ms. Allen has put forward sufficient evidence of inadequate training, that is still not enough under the circumstances. The evidence is not even close to establishing the kind of inadequate training that is “so obvious, and ... so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Canton, 489 U.S. at 390, 109 S.Ct. at 1205. In most cases, plaintiffs meet this standard by demonstrating that a pattern of constitutional violations has put the municipality on notice that its training is inadequate, and that the municipality‘s continued adherence to its training thus constitutes deliberate indifference. See, e.g., Brown, 520 U.S. at 407, 117 S.Ct. at 1390 (“If a program does not prevent constitutional violations, municipal decisionmakers may eventually be on notice that a new program is called for.“); Zuchel v. City and County of Denver, 997 F.2d 730, 740-41 (10th Cir.1993) (holding that the defendant municipality was deliberately indifferent when it failed to change its training dеspite six deadly force incidents within a six-week time period, and despite repeated requests by the district attorney for new training). In this case, however, there is no allegation that previous similar incidents had put the City of Muskogee on notice that its training was inadequate. The Supreme Court has cautioned that in such cases, plaintiffs will succeed only in a “narrow range of circumstances.” Brown, 520 U.S. at 409, 117 S.Ct. at 1391. Thus, Ms. Allen must prove deliberate indifference by showing that a violation of federal rights was a “highly predictable” consequence of its failure to adequately train its police officers. Id. The mere fact that city pоlice officers may have acted unconstitutionally cannot be the basis for municipal liability. Monell v. Department of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1977) (“[A] municipality cannot be held liable under
Given that there was no evidence before the court regarding the content of Muskogee‘s training, any deliberate indifference exhibited by Muskogee is pure speculation and conjecture. I do not believe there exists any evidence tending to place Plaintiff‘s case within the “narrow range of circumstances” in which liability may attach without any pattern of past constitutional violations. Ms. Allen has failed to make a showing sufficient to establish an element on which she would bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. Accord-