Allen v. Muskogee Oklahoma

Marilyn ALLEN, Representative Personal Terry deceased, Allen, Plaintiff-

Appellant,

MUSKOGEE, OKLAHOMA, municipal Bentley Smith,

corporation; Don Mc

Donald, Farmer, Crull, Brian and James

Defendants-Appellees.

No. 96-7021. Appeals,

United States Court

Tenth Circuit.

July 1997. Matthews, Brennan, R.

Juliet N. Albert Bonds, Matthews, Hayes, Musko- Bonds & OK, gee, Plaintiff-Appellant. Whitten, (Reggie Woodrow K. Glass N. Whitten, brief), him Mills & OK, Priest, City, T. David Oklahoma Jim Walls, Warden, Cathy McKinney, A. Webster, P.C., City, Stringer Oklahoma & OK, Defendants-Appellees. BRISCOE, KELLY, hand, a gun right He had in his Before which was LUCERO, resting Judges. on the console Circuit between the seats. repeatedly As Lt. Smith ‍​​​‌‌​​​​​​​‌​​‌​‌‌​‌‌​​​​​​‌​​‌​​‌​‌​​​‌​​​​‌‌​‍told Mr. Alen to KELLY, Jr., Judge. Circuit PAUL drop gun, Bentley his Officer McDonald ar- Plaintiff-Appellant Marilyn appeals Alen joined rived and Lt. Smith the driver’s rights ruling on her civil from adverse door. Smith side Lt. then reached into the personal § 42 1983 as claim under U.S.C. attempted vehicle and to seize Mr. Alen’s alleging that the representative, defendants gun, Bentley while Officer held Mr. Alen’s against force her excessive deceased used Farmer, arm. Bryan left Officer ar- who Fourth in violation of the Amend- husband Bentley, approached rived with Officer Mr. summary granted ment. The district court side, passenger Alen’s car from the and at- judgment Defendant-Appel- to the individual tempted open to a passenger side door. Mr. ground they on the did lee officers by pointing gun Alen reacted toward Having the Fourth not violate Amendment. Farmer, who Officer ducked and be- moved no constitutional violation determined that the ear. swung gun hind Mr. Allen then occurred, summary granted the court also McDonald, toward Lt. Smith and Officer and judgment Defendant-Appellee City exchanged. shots were Smith Lt. Offi- and jurisdiction Muskogee. 28 Our arises under cer McDonald fired a total of twelve rounds panel § A 1291. unanimous reverses U.S.C. vehicle, striking into Mr. four Alen officers, judgment as the individual sequence, times. The entire from time city. panel a divided reverses as to the and Lt. Smith arrived to the time Mr. Mien was killed, approximately ninety lasted seconds. Background brought against § Plaintiff 1983 claim 20,1994, February Ter- morning On against the officers involved and ry Alen left home after an altercation his Muskogee. subsequently Defendants moved with his wife children. He toоk ammu- summary judgment, set forth state- a him, guns nition and several with and later supporting ment of facts in their brief parked Muskogee in front of the residence of response, motion. In her Plaintiff not did sister, Lee-Oakley. his Rhonda The alterca- dispute Defendants’ statement of The facts. reported Wagoner to the tion was motion, granted court district Defendants’ Department, teletype Sheriffs which sent a holding genuine that there was no issue of (MPD), Muskogee Department to the Police fact and that Defendants enti- material were describing car Mr. Alen and his and advis- judgment as a tled matter law. Mr. Alen was armed and had family teletyрe threatened members. Discussion a also advised that there was 1983 warrant summary grant We review outstanding imper- for Mr. Mien’s arrest for novo, legal judgment apply de the same sonating an officer. Lt. Donald Smith of the under standard used the district court relayed offi- MPD the information to other 56(c). Inc., Learjet, 90 Rule Goldsmith v. during meeting squad p.m. cers at 1:30 (10th Cir.1996). 1490, Summary F.3d 1493 only meeting, appropriate if is no judgment Some time after the Lt. Smith is “there might genuine any Mr. his fact ... was advised that Alen be at issue as material Muskogee. moving party judgment sister’s house in Before he could the entitled 56(c). officers, A dispatcher meet other a radio a matter of law.” Fed.R.Civ.P. him if it affect disputed might that a 911 call had been made fact is “material” advised Oakley’s governing from Ms. Alen the suit home and Mr. the outcome of under law, dispute proceed- evi threatening “genuine” suicide. Lt. Smith and the home, by- Oakley approached jury is such that a reasonable could ed to dence standing nonmoving party. who near Mr. Alen’s for the standers were return verdict Inc., vehicle, back, Liberty step Lobby, and ordered them to Anderson v. 242, 248, 106 they sitting which did. Mr. Allen was in the L.Ed.2d (1986). driver’s seat with one foot out of the vehicle. We construe the factual record Connor, light v. in the stances. Graham inferences therefrom reasonable L.Ed.2d the nonmovant. Gullick most favorable Lawrence, Kan., Assoc., Thompson Pilots’ Airlines v. Southwest son Cir.1995). (10th Cir.1996). F.3d The dis- 1176, 1183 genuine materi- trict found issues of party need affirma moving fact, in an al and held acted claim in order tively negate the nonmovant’s conclude, way. objectively We reasonable Corp. summary judgment. Celotex to obtain however, the individual Defendants 322-23, Catrett, carry their initial burden of demon- failed (1986). 2551-52, In strating genuine the absence of issue stead, the initial bur only bears movant material fact. “ is, ‘showing’ pointing out to den of —that in inquiry The excessive force is an there absence the district court —that only not the actions at the cludes officers’ party’s support nonmoving the evidence to presented, moment that the but threat 325,106 Id. at 2554. case.” at S.Ct. may actions in the mo also include their granting summary judgment, In the dis- suspect’s leading up to the threat of ments beyond agreed-upon the trict court went Kan., Lawrence, 60 force. Sevier v. findings. court its own facts and made (10th Cir.1995). 695, course, the F.3d 699 Of found, example, knew for the officers per judged use of force must be from the had to have killed that Mr. Allen claimed spective a reasonable officer “on the at arriving his sister’s people three before scene,” split- is “often forced to make who the knew not home. Whether does the judgments second ... about amount review, Plaintiff is our but correct alter particular necessary force that is in a situa finding the is not pointing out that court’s Graham, 396-97, 109 490 tion.” U.S. at S.Ct. the supported by record. However, at 1871-72. as we stated in Sevier: reasonableness of Defendants’ actions “[t]he Although Supreme the Court has said depends both on whether the officers were helpful to of fact are sometimes findings danger precise they at used the moment that summary re appeals judgment an court on and whether reck force Defendants’ own Anderson, 6, view, at 250 n. 106 U.S. during less or deliberate the seizure conduct at n. the court on sum S.Ct. district unreasonably created the need use such to mary judgment should determine “whether at will consid force.” 60 F.3d 699. We thus any genuine factual issues ... are prior suspect’s to er officer’s conduct the by only properly be resolved a finder can “immediately if the is threat force conduct fact,” In id. at 2510. at suspect’s connected” to the threat of force. sense, inap “findings of fact” are traditional Comm’rs, Romero v. Board order, summary judgment propriate in a be Cir.1995), n. 5 de F.3d cert. summary judgment proper cause if - nied, -, 116 S.Ct. findings need made the case of fact be (1996); Chamberlain, L.Ed.2d 728 Bella v. as a matter of law. read can be resolved We (10th Cir.1994), 1256 n. 7 cert. only helpful that it Anderson to mean be denied, 898, 130 513 U.S. 115 S.Ct. undisput the when district summarizes L.Ed.2d 783 see also Tennessee Regalado City ed facts. See Commerce Gamer, 1, 8-9, (10th Cir.1994) City, 20 n. 1 (1985) 1699-700, (objective L.Ed.2d 1 rea- (findings required, are the of fact not but inquiry requires to exam- sonableness courts summary judgment granting reasons totality of circum- ine “whether the the record). should stated justified particular sort or stances of search seizure”). The Individual I. Officers not analyze §a exces Defendants have shown We 1983 claim of genuine issue material by determining sive force whether the offi there is lack of regard to officers’ objectively cers’ actions were fact reasonable reasonable Celotex, light of facts ness. surrounding and circum- See Indeed, summary judgment at 2553. it seems us that Defen City, reasoning pointed presence municipal liability requires of a dants have out a constitu- acknowledged by tional violation genuine issue. Defendants officers. Even assum- ing correctly the court interpreted before district court that there are differ that law municipal liability, question among eyewitness depositions. we need not ences resolve, and do court еrred enter- example, deposition testimony some For indi ing summary judgment ground on that up Lt. be- “screaming” cates that Smith ran plaintiff presented cause we have concluded immediately car began Mr. Allen’s shout sufficient evidence that the officers commit- car; Allen get at Mr. out of his other ted a constitutional violation to withstand a testimony ap indicates that Lt. Smith summary judgment motion. We review the proached talking cautiously and tried Mr. propriety summary judgment for the giving up gun. Allen into de novo and support plain- find sufficient “minor,” Appellees disputes label these against tiff’s claim to withstand sum- but the substantive law indicates otherwise. mary judgment. Romero, (an 705 n. See 60 F.3d at officer’s prior suspect’s conduct threat of force moving party Once the has car 56(e) “immediately burden, “requires relevant the conduct is ried Rule force). suspect’s nonmoving party go beyond connected” threat of pleadings incident, affidavits, by ... ‘depositions, The entire from the time Lt. Smith or only shooting, interrogatories, arrived to time of the took answers to and admissions file,’ ninety Clearly, preced- designate ‘specific seconds. on showing officers’ facts that ” ing “immediately genuine actions were so is a connected” issue for trial.’ Celotex Catrett, they 317, 324, of Corp. to Mr. Allen’s threat force that v. 477 U.S. 106 S.Ct. 2548, 2553, (1986). should be included in the in- reasonableness L.Ed.2d 265 “[T]he 56(c) eyewitness quiry. plain language The testi- differences of Rule mandates the mony regarding approach entry are of summary judgment officers’ adequate after motion, disputes. therefore material factual discovery upon against time for a Anderson, party who U.S. at 106 S.Ct. at 2509 fails to make a showing sufficient (holding that the substantive law determines establish the existence of an element es material). case, disputed party’s whether a fact is sential to that and on which that party will proof bear the burden of at trial.” mаterial, disputes only The are not but 322,106 Id. at at S.Ct. 2552. they genuine. dispute A are also about a genuine material fact is is evidence inadequacy police train “[T]he jury such a reasonable a could return ing liability § basis serve as a for Anderson, nonmoving party. verdict for the only where the failure train amounts to 477 U.S. at at 2509. we S.Ct. While rights per deliberate indifference to the merits, express opinion on the a reason- police with sons whom the come into con jury able on could conclude of some basis Harris, City v. tact.” Canton 489 U.S. testimony presented of the that the officers’ 109 S.Ct. precipitated actions were reckless and (1989). liability city’s To establish a Sevier, deadly need to use force. See § 1983 for train inadequate under U.S.C. F.3d at 699. police force, ing officers the use a (1) plaintiff must show officers exceeded BRISCOE, Judge. Circuit force; constitutional limitations on the use (2) the use of force arose circum- under City Muskogee II. The recurring stances that constitute a usual and deal; plaintiff police The also claimed the of Mus- situation with which must officers (3) kogee § inadequate training was liable under 42 U.S.C. demonstrates a ‍​​​‌‌​​​​​​​‌​​‌​‌‌​‌‌​​​​​​‌​​‌​​‌​‌​​​‌​​​​‌‌​‍inadequate training individually-sued part city of the deliberate indifference on the of the policе persons officers. police After district court de- toward with whom the officers (4) contact, termined individual officers committed no come into there is a direct violation, depri- link granted constitutional causal between constitutional city responsible, which is and for training. Zuchel inadequate vation and Denver, County city may if it which the be held liable Cir.1993). Canton, actually injury. 489 U.S. See causes 734-35 389-91, regards at 1204-05. As at 109 S.Ct. at 1205. The S.Ct. requirements, a show- the second third noted: Court a which establish specific incidents city policymakers know to example, For not nec- violations is pattern of constitutional certainty a mоral officers essary put on notice fleeing felons. required will be arrest Rather, program inadequate. is evi- city with fire- has armed its officers rights, single violation federal dence of a arms, accomplish allow part to them by showing municipali- accompanied Thus, this task the need to train officers employees to handle ty has to train its failed limitations on the use of the constitutional presenting an obvious recurring situations force, deadly to be obvi- can said “so violation, potential for such sufficient ous,” properly failure to do so could municipal liability. Board trigger See as be characterized “deliberate indiffer- — Brown, -, Com’rs rights. ence” to constitutional 1382, 137 L.Ed.2d 626 omitted). (citation Id., 10,109 at 1205. at 390 n. n. at 1205 presented to There was evidence the dis- requirement first satisfied received inade- trict court because, I of here Section concluded mentally how with quate to deal opinion, there evidence in the record emotionally upset persons ill or who are support the claim that the officers exceed princi- relied armed firearms. Plaintiff limitations on the use of ed constitutional witness, expert George Dr. Kirk- pally on her regards requirement, second force. As ham, pro- collegе former officer presented to the district court con exhibits police on fessor and now a consultant and offi tained evidence that it was common for security The matters. record does not show mentally to with ill or cers to have deal challenged Dr. Kirkham’s that defendants un emotionally people people disturbed expert police qualifications as an on tactics is drugs influence of or alcohol. Nor der the procedures. to have with it uncommon for officers to deal Thus, persons deadly weapons. with armed deposition in Dr. Kirkham testified his the use of force was evidеnce totally the officers’ actions were reckless arose that constituted a under circumstances contrary proper police practices to for deal- recurring po usual with which situation emotionally mentally with ill or armed lice officers must deal. Kirkham, persons. Dr. upset According to requirement The third also satisfied. police proce- tactics and all authorities supports The an inference that the record dures, in law ex- both the enforcement and a training demonstrates deliberate indiffer- communities, pert agree it is not witness part people of the ence on the toward approach a appropriate to leave cover and into In with whom the come contact. away person try to take a suicidal armed to explained when inade- the Court provoke gun. likely Such action is to a vio- city policy: quate police training constitutes response, high in a resulting lent risk officers, light person, to oth- may happen that of the duties death armed [I]t specific employees proper Dr. Kirkham stated the assigned to officers or er civilians. training is have for the officers to procedure the need for more or different would been cars, obvious, inadequacy likely their to so and the so to take cover behind ask people standing car to come to- result in the violation constitutional Allen’s city get out of harm’s rights, policymakers ward them in order them information, reasonably way and then to can said to have delib- and to obtain be been erately try In that to communicate with Allen from a safe indifferent to the need. doing event, anything aggressive provide proper position failure train- without response. ing may fairly represent policy provoke that could violent be said to only- opinion, In Kirkham’s there were Not engaging Dr. able. certain actions with possibilities give mentally that could rise to the people, two get- disturbed armed present preferable. incident —either the officers failed to ting close to them they training improperly follow their or were any I’ve never knowledgeable heard de- Brook, Muskogee Lieutenant trained. argument any bate or about of those sub- Department training from Police coordinator jects in years the 25 doing I’ve been 1984 to testified officers acted type of work. training approaching with accordance their Referring Id. at 580. training provid- gun. trying away the car and to take through a program, ed the officers state Dr. Relying principally testimony, on this Dr. Kirkham stated: training officers’ Kirkham concluded the was If through State Oklahoma Dr. inadequate. Kirkham was also aware CLEET trains their to not that Lieutenant testified he acted in Smith cover, mindful of aggressive to be police training. with his More- accordance mentally people, ill do all things these over, McIntyre, affidavit of state Glen board, totally are off the then the State is coordinator, training firearms stated the offi- wrong synch and out of with the rest of the training. cers followed The evidence country police profession. in the supports inference trained Id. at 592-93. approach its officers to leave cover and When read as a whole and viewed persons try armed suicidal disarm light most plaintiff favorable to the as the them. party opposing summary judgment, the rec- highly Dr. Kirkham was critical of the supports ord an inference training: officers’ ap- trained officers to leave cover and you’ll I any reputable don’t believe find suicidal, proach emotionally armed disturbed States, expert in the United no one that I persons them, try practice and to disarm of, possibly posi- know that could take the contrary procedures proper police and tac- every virtually tion in contradiction of principles. tical piece I material that have ever testimony of Lieutenant Brook and says you way. seen that handle it in this Lieutenant Smith and the affidavit Glen such principles. These are well established McIntyre support an inference that con- I think reputable specialist don’t could tent inadequate. “Hey, yeah. say, walk-up situa- You to the City points to evidence that the officers com- tion, keep grab in open, trying stand the to pleted many of training, including hours gun.” the training deadly on use of dealing forсe and just It is reckless behavior. upset mentally people, with or but disturbed append. Appellant’s Ill at 572. He stated the that cannot rebut inference the respond the officers were trained to this to training was inadequate because it does not in staying open, leaving kind of call the the that training. address content of people open, pro- in innocent the and doing things trying grab gun vocative like to the Relying on Evers General Motors car, get training and into the “out the was of Cir.1985), Corp., 770 984 the F.2d synch with the entire in United States terms deposition argues Kirkham’s be disre must of police being what are to Id. trained do.” garded to genuine as insufficient raise issues at 576. adequacy of fact regarding material the of my Evers, knowledge, any training.

To I’m not aware In a four- of court held significant by plaintiffs expert paragraph debate in law enforcement affidavit wit expert community or genuine witness about the to create issues ness was insufficient principles conclusory fundamental talking allega we’re about of fact material because Cover specific here. is better than cover. were on tions not based facts. Dr. Communicating deposition from a safe is bet- comparable distance Kirkham’s not to ter than not. Getting people conclusory innocent as in the brief affidavit Evers. The safely way possible out of the as deposition pages length is desir- is over in and trying gun opinion specific proaching grab was based on and to from Dr. Kirkham’s disturbed, emotionally person suicidal creat- de- in record. His extensive and facts officers, high ed a risk of death for the armed although he testimony shows tailed civilians, person, other and was reckless. documents, he was have all relevant not read There was evidence officers were trained circumstances of the very familiar with the and, thus, in to act such manner werе trained Cincinnati, Russo v. incident. See of thing. precisely wrong to do The causal (6th Cir.1992) 1036, ‍​​​‌‌​​​​​​​‌​​‌​‌‌​‌‌​​​​​​‌​​‌​​‌​‌​​​‌​​​​‌‌​‍1046-47 (reject- training link and the between officers’ testimony ing argument plaintiffs of alleged deprivation is more di- constitutional procedures conclusory expert police in in in not rect than cases which officers are preserve genuine question to and insufficient given enough to know the correct liability). city’s over Bak of material fact Cf. dangerous response situation. Dr. Kirk- to (5th Cir.1996) Putnal, er v. F.3d to improper ham the incident attributed (unsubstantiated in of conclusions affidavit training, in the stating: police “[I]f trainers expert preclude purported insufficient to using of are this case as an State Oklahoma summary judgment city); in favor Bena example you men- properly of how handle a Wilson, vides v. individual, tally ill then will officers (5th Cir.) purported expert (deposition of die, mentally assuredly people ill and other subjective opinion giving only not based Ap- probably people innocent will die.” expertise proven or insuf- factual foundation It pellant’s append. Ill at 574. was his summary judgment in fa- preclude ficient to opinion properly if the had been officers city), cert. denied U.S. vor principles in trained the fundamental 121 L.Ed.2d 43 Allen trying to maintaining position a covered (W.D.Okla.1987)(un- Cook, F.Supp. 1460 emotionally upset communicate with armed plain- conclusions affidavit of substantiated persons approaching physi- than rather preclude summary expert tiffs insufficient to them, cally attempting disarm the incident city). judgment in favor happened. would have ac- Dr. Kirkham characterized officers’ supporting Because there was evidence diametrically as opposed tions in case ex- requirements each proper procedures, synch out with Zuchel, plained erred district police profession, “plain the rest of the entеring summary judgment favor of Because was evidence foolishness.” Tuttle, City v. City. Oklahoma officers acted accordance also training, applied their his criticism (1985), require conclu- does not a different light training. When viewed in the Tuttle, it In the Court held was error sion. plaintiff, record most favorable single jury instruct it infer from a could were contains evidence that unusually incident excessive force recklessly trained act in a manner that to a violation was attributable constitutional high created risk of death. The evidence city policy inadequate supervi- or support an inference that sufficient Here, rely solely on plaintiff does not sion. training was need for different so obvious an proof single support of incident to likely inadequacy result in and the so by was inference that the incident caused rights poli- violation of constitutional training inadequate inadequate and that reasonably cymakers could of city evi- training policy. She relies on was deliberately said to have been indifferent officers followed train- dence that the the need.1 try- recklessly rushing Allen’s car and requirement, regards As the fourth there him. and Canton do ing to disarm Tuttle of a causal link between of than one incident require was evidenсe direct evidence more alleged inadequate training of training policy and the constitutional establish a Kirkham, training deprivation. According ap- to Dr. caused constitutional handling the training given officers followed 1. There is no contention that policy. city He anything to show it was official was other than official incident tends officers policy testimony from 1984 to 1993. that the was the coordinator Lieutenant Brook's

845 require plaintiffs § simply upon cases evi- 1983 such deprivation. These cases as this one, to the of a there absolutely dence in addition occurrence where has been rely plaintiff properly showing pattern A can of a single incident. of constitutional viola- if might put incident there is other evi- tions which single on the have of Mus- Vineyard training. kogee notice inadequate training program dence of See 1207, 1212-14 Murray, inadequate. 990 County v. See Board of — (11th 1024, Cir.), Brown, U.S.-,-, denied 114 v. cert. 510 U.S. Comm’rs (1993); Russo, 1382, 1391, (1997); S.Ct. S.Ct. 137 L.Ed.2d 626 1041, 1046-48; Harris, v. City 953 F.2d at Bordanaro v. Canton 390 ‍​​​‌‌​​​​​​​‌​​‌​‌‌​‌‌​​​​​​‌​​‌​​‌​‌​​​‌​​​​‌‌​‍n. (1st McLeod, Cir.), 10, 1197, 1205, 871 F.2d 1159-63 109 S.Ct. 103 L.Ed.2d 412 (1989). cert. U.S. denied 493 L.Ed.2d 42 v. Grandstaff The court views this case one which Cir.1985); Borger, 169-72 single “evidence of a violation federal Salazar, F.Supp. 1098-99

Diaz accompanied rights, by showing that a mu- (D.N.M.1996). By providing direct evidence nicipality employees has failed to train its above, training, inadequate as discussed recurring presenting handle situations an ob- plaintiff beyond sufficient provided evidence potential vious for ... trig- such a violation single of the to with- the occurrence incident — Brown, ger[s] municipal liability.” summary judgment. stand at-, (citing 117 S.Ct. at 1391 — Brown, U.S.-, Nor does 1205). n. U.S. at & 109 S.Ct. at 626, require a different L.Ed.2d sufficient of a Although single evidence viola- result. The case before us is within exists, federal rights tion of Ms. Allen has recognized range “narrow circumstances” any showing not made less a suffi- —much Brown, by Canton left intact under showing inadequate policy, cient an nor —of single rights which a of federal violation proof allegedly inadequate that the highly predictable consequence be a of fail- policy presented potential” such an “obvious recurring ure to train to handle situ- officers liability harm that can constitutional or potential ations with obvious such a an triggered. should be violation. The likelihood that officers will The evidence is insufficient to establish the frequently to deal with emotion- have armed Muskogee’s training inadequacy because ally upset persons, predictability that and the absolutely regarding no evidence exists cover, approach, officers to leave trained training. Muskogee’s content of The court persons prоvoke attempt to such disarm will that none of the evidence in this observes response, justify finding a violent could Muskogee’s case addresses the content City’s properly failure to train its it training, and assumes that was Defen- deliberate reflected indifference put forward that content. dants’ burden consequence City’s the obvious of the choice. Op. summaiy judgment at See Ct. 843. The of a violent to this response likelihood standard, however, clearly places that burden type action may support also an Catrett, Corp. on Ms. Allen. See Celotex City’s indif- inference of causation —that the 2548, 2551, 317, 322, directly consequence very ference led (1986) plain (stating L.Ed.2d predictable. that was so 56(c) language Fed. R. Civ P. mandates and REMANDED. REVERSED entry summary judgment nonmoving showing party fails to make a sufficient to

KELLY, part. Judge, dissenting Circuit element, party establish and on which trial). ‍​​​‌‌​​​​​​​‌​​‌​‌‌​‌‌​​​​​​‌​​‌​​‌​‌​​​‌​​​​‌‌​‍proof I II Ms. respectfully dissent from of will bear burden of Section dispute Muskogee opinion. Permitting the court’s this case Allen does not that against go requirements Muskogee training forward reverses the exceeds Oklahoma’s fact, Supreme In training. burden that deliber- for enforcement Court has law ately Muskogee’s place party opposing only chosen to on the a on the content evidence summary judgment. motion at all of two law en- training It also is are affidavits placed the strict officials that individual officers inconsistent with standard forcement eventually program Al- be notice that new training. Ms. on a that in accord with acted Kirkham, for.”); be- City that v. expert, Dr. stated is called Zuchel len’s Cir.1993) were, opin- Denver, (10th 730, actions in his the officers’ 740-41 cause police practices, and ion, contrary proper (holding municipality that the defendant was stated officials two law enforcement deliberately because it failed to indifferent when accord with the officers acted despite deadly that change training its force six training have Muskogee’s must training, then period, within a six-week time incidents admitted, inadequate. Dr. Kirkham been repeated by despite requests the district at- however, not read either Musko- that he had case, torney training). In this how- new The training or Oklahoma’s materials. gee’s ever, previous allegation there that emphasizes supports this that evidence put had of Musko- similar incidents City Muskogee “inference” that an on that its was inade- gee notice police Al- inadéquately trained its officers.1 quate. Supreme Court has cautioned though we must all factual inferences draw cases, only plaintiffs in such succeed will nonmovant, inferences those favor range of circumstances.” in a “narrow v. South must be reasonable. Gullickson — Brown, at-, at 1391. U.S. S.Ct. Assoc., 1176, Airlines Pilots’ west Thus, prove Ms. must indif- Allen deliberate Cir.1996) (citing Elec. Matsushita by showing that violation of federal ference Corp., v. Radio 475 U.S. Indus. Co. Zenith predictable” “highly conse- rights 587, 106 1348, 1356, 89 L.Ed.2d S.Ct. its train quence adequately failure to its (1986)). testimony, grounded Dr. Kirkham’s city fact that officers. Id. mere speculation, may raise an inference may have unconstitution- acted officers, Muskogee inadequately trained ally municipal cannot basis for liabili- be thе summary it is not sufficient to withstand but Servs., ty. Department Monell v. Soc. Rather, inference, this if it can be judgment. U.S. 98 S.Ct. constitutes, best, called, at a “mere scintil- so (1977) (“[A] municipality cannot be held evidence, judgment which a in favor la” of on superior § a respondeat liable under 1983 on upheld. cannot the nonmovant theory.”); see also Oklahoma Inc., Lobby, Liberty 411 U.S. Anderson Tuttle, 808, 823-24, 471 U.S. 2505, 2511, 242, 252, 106 91 L.Ed.2d 202 2436-37, (1985) (plurality L.Ed.2d (1986). (“Proof single uncon- opinion) of a incident of put has assuming Even that Ms. Allen impose activity stitutional is not sufficient to inadequate forward sufficient evidence of Monell, liability proof of under unless enough not under the training, is still proof by that was caused incidеnt includes it The evidence is not even circumstances. existing, municipal policy, unconstitutional inadequate kind establishing close to municipal ... which can be attributed to obvious, likely ... training that is “so so policymaker.”). violation of constitutional to result was no Given evidence before city can rights, policymakers that the of the regarding the court the content of Musko- deliberately reasonably be have said to been training, ex- gee’s any deliberate indifference at indifferent the need.” pure Muskogee speculation hibited cases, plain- In 109 S.Ct. at 1205. most conjecture. any I do not believe there exists by demonstrating tiffs meet this standard place tending evidence Plaintiffs case has pattern that a constitutional violations range within “narrow of circumstances” notice its train- put municipality on liability may any without in which attach inadequate, municipality’s ing is pattern past Ms. constitutional violations. con- continued adherence to its thus See, showing has to make a sufficient e.g., Allen failed deliberate indifference. stitutes — Brown, at-, she to establish an element which would at 1390 Celotex, (“If proof prevent bear the burden of at trial. program constitution- does violations, at Accord- municipal 106 S.Ct. at 2552. al decisionmakers II, "inference,” Op. inadequate training, Ct. see evidence” of see at 1. At the end of Section Op. metamorphosed Ct. into "direct 844-45. has ingly, I affirm as to the of Musko- would

gee.

The DENVER & RIO GRANDE WEST COMPANY,

ERN RAILROAD Plain

tiff-Counter-Defendant-Appellant, COMPANY,

UNION PACIFIC RAILROAD ndant-Counter-Cl

Defe aimant-Appellee.

No. 96-3050. Appeals,

United Court of States

Tenth Circuit.

July 1997.

Case Details

Case Name: Allen v. Muskogee Oklahoma

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jul 17, 1997

Citation: 119 F.3d 837

Docket Number: 96-7021

Court Abbreviation: 10th Cir.