BRADFORD BOHANON, Plaintiff-Appellant, v. CITY OF INDIANAPOLIS, Defendant-Appellee.
No. 20-3125
United States Court of Appeals for the Seventh Circuit
ARGUED MARCH 31, 2021 — DECIDED AUGUST 22, 2022
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-02117-JRS-MJD — James R. Sweeney II, Judge.
SYKES, Chief Judge. In August 2014 Indianapolis Police Officers Michael Reiger and John Serban went to Mikie‘s Pub in Indianapolis to celebrate Reiger‘s birthday. Both officers were off duty and in plain clothes. Sometime after the two started drinking, Bradford Bohanon arrived at the bar. After receiving his bill, Bohanon argued with the bartender that he had been overcharged. Reiger and Serban
Bohanon sued the City of Indianapolis under
The district judge denied the City‘s motion for summary judgment on the excessive-force claim, and the case proceeded to trial. A jury found the City liable and awarded Bohanon $1.24 million in damages. The City moved for judgment as a matter of law, and the judge granted the motion and vacated the jury‘s verdict.
We affirm. The officers’ conduct was egregious, but Bohanon‘s theory for holding the City liable is flawed. Municipalities cannot be held vicariously liable under
I. Background
At around 1 a.m. on August 7, 2014, Officers Reiger and Serban visited Mikie‘s Pub in Indianapolis. They were off duty, wore plain clothes, and arrived in Reiger‘s personal vehicle. They each drank several beers and at least one shot while at the pub.
After the officers began drinking, Bohanon arrived and ordered a double scotch. Feeling generous, he also ordered a round of shots for everyone at the bar. But when Bohanon received his tab, his mood soured. He believed that he had been overcharged and asked the bartender for an itemized receipt. When she refused, Bohanon became loud and combative. The bartender took the tab from Bohanon and asked him to leave. Bohanon refused and continued to argue. The doorman of Mikie‘s Pub intervened, but Bohanon still refused to leave.
When the situation did not de-escalate, Serban decided to get involved. He identified himself as a police officer, waved his badge in Bohanon‘s face, and told him to leave. Reiger acted as a cover officer, standing behind Serban in the “tactical v” position used to provide protection for an officer
Serban‘s chokehold caused Bohanon to lose consciousness. The officers then dragged him by his feet, face down, out of the pub and into the parking lot. Once outside, the officers kicked the still-unconscious Bohanon in the back and stepped on his head, grinding his face into the pavement. Bohanon briefly regained consciousness but was stomped back into the ground and knocked unconscious again. When Bohanon awoke, one of the officers said, “[i]f you try to report us[,] we will find you.” The officers then kicked or hit Bohanon in the head, knocking him unconscious for a third and final time. When he regained consciousness, he was covered in blood and the cash from his wallet was gone.
Bohanon filed a complaint with the Indianapolis Police Department. Both the Department‘s Special Investigations Unit and Internal Affairs Division launched an investigation. The Department found that Reiger‘s and Serban‘s actions violated a host of City policies, including impermissibly using excessive force, using an inappropriate chokehold, failing to render medical aid, and failing to report the incident and contact a supervisor about it. The Department also determined that there was probable cause to believe that the officers had committed felony offenses, and both officers were charged with felony battery. (They were later acquit-
As the Department‘s investigation revealed, the officers’ actions in brutally beating Bohanon were plainly prohibited by the City‘s express policies. The Department‘s General Order 3.24 covers substance abuse and was enacted “to ensure [that officers] are not under the influence of alcohol or other drugs while acting in any law enforcement capacity.” The policy categorically prohibits both on-duty officers and off-duty officers in uniform from having alcohol in their blood. It also prohibits off-duty officers with alcohol in their blood from performing any law-enforcement function subject to a very narrow and precisely stated exception. An officer who has consumed alcohol may engage in a law-enforcement function only “in extreme emergency situations where injury to the officer or another person is likely without law enforcement intervention.” General Order 3.12, which details the responsibilities of off-duty officers, defines “[a]n extreme emergency ... to be a situation where action is required to prevent injury to the off-duty [officer] or another, or to prevent the commission of a felony or other serious offense.”
General Order 3.12 also creates a reporting requirement for an off-duty officer who takes law-enforcement action. Off-duty officers “must make [an] incident report if they are directly involved in ... action” as a law-enforcement officer. This reporting requirement applies irrespective of whether the off-duty officer had consumed alcohol.
The City‘s policies also set guidelines for the use of force. General Order 1.30 limits the use of force to “only that amount of force that is reasonable, given the facts and
In August 2016 Bohanon filed suit against Reiger, Serban, and the City alleging constitutional claims under
The City moved for summary judgment, arguing that the undisputed facts did not support the conclusion that it was
At trial the parties stipulated that Reiger and Serban used excessive force against Bohanon at Mikie‘s Pub. And they stipulated that the City permits officers to use only an amount of force that is reasonable under the circumstances. The evidence at trial established that Bohanon‘s argument with the bartender at Mikie‘s Pub did not qualify as an extreme emergency situation under the City‘s policies.
The judge instructed the jury to consider whether Bohanon proved by a preponderance of the evidence (1) that “the City was deliberately indifferent to a likelihood that its policies would cause off-duty police officers to use unreasonable force while having alcohol in their blood” and (2) that Reiger‘s and Serban‘s use of unreasonable force was “caused by the City‘s policies.” The judge then instructed the jury on damages: “If you find that plaintiff proved each of these things by a preponderance of the evidence, then you must decide for plaintiff and go on to consider the question of damages.” The jury returned a verdict for Bohanon and awarded $1,241,500 in damages.
The City then moved for judgment as a matter of law under
II. Discussion
We review de novo the judge‘s decision to grant the City‘s motion for judgment as a matter of law, drawing all reasonable inferences in Bohanon‘s favor. Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 601 (7th Cir. 2019). We may not reweigh the evidence and must affirm the jury‘s verdict “unless there is no legally sufficient evidentiary basis for a reasonable jury to find for the non-moving party.” J.K.J. v. Polk County, 960 F.3d 367, 378 (7th Cir. 2020) (en banc) (quotation marks omitted).
A municipality is a “person” under
Accordingly, a plaintiff can prevail on a Monell claim for municipal liability only when challenging the “execution of a government‘s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Id. at 694. We have recognized three types of municipal action that can support municipal liability under
Next, a plaintiff bringing a Monell claim against a municipality “must show that the policy or custom demonstrates municipal fault.” Dean v. Wexford Health Sources, Inc., 18 F.4th 214, 235 (7th Cir. 2021) (quotation marks omitted). Municipal fault is easily established when a municipality acts, or directs an employee to act, in a way that facially violates a federal right. Brown, 520 U.S. at 404-05. On the other hand, where the plaintiff does not allege that the municipality‘s action was facially unconstitutional but merely alleges that the municipality caused an employee to violate a federal right, a “rigorous standard[] of culpability ... applie[s] to ensure that the municipality is not held liable solely for the actions of its employee.” Id. at 405. The plaintiff must
Finally, a plaintiff bringing a Monell claim must prove that the municipality‘s action was the “moving force” behind the federal rights violation. Brown, 520 U.S. at 404. This is a “rigorous causation standard” that requires the plaintiff to “show a ‘direct causal link’ between the challenged municipal action and the violation of his constitutional rights.” LaPorta, 988 F.3d at 987 (quoting Brown, 520 U.S. at 404).
These three requirements to establish a Monell claim—policy or custom, municipal fault, and “moving force” causation—are by now familiar. And they “must be scrupulously applied” to avoid a claim for municipal liability backsliding into an impermissible claim for vicarious liability. Id. That‘s especially true of the municipal-fault and causation requirements where (as here) “a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so.” Brown, 520 U.S. at 405. In these circumstances a rigorous application of the proof requirements is especially important. Id.
Bohanon‘s Monell claim is premised on the Fourth Amendment right to be free from unreasonable seizures. See King v. Hendricks Cnty. Comm‘rs, 954 F.3d 981, 984 (7th Cir. 2020). The parties agree that his claim satisfies the threshold requirement that the officers acted under color of law when they engaged and then brutally beat Bohanon at Mikie‘s
It‘s at steps two and three—municipal fault and “moving force” causation—that Bohanon‘s claim collapses. It‘s undisputed that the officers violated General Order 3.24 when taking off-duty police action while drinking because no extreme emergency situation was present at Mikie‘s Pub. The parties stipulated to this fact at trial. And it‘s undisputed that the officers violated General Order 1.30 by using unreasonable force against Bohanon. Therefore, the City‘s policies expressly prohibited both the officers’ off-duty law-enforcement action and the excessive force used against Bohanon. The City‘s policies prohibiting these actions are clearly not facially unconstitutional.
Bohanon‘s theory is that General Order 3.24 should not have included an exception for extreme emergency situations. He contends that this “gap” in the policy led to the “highly predictable” outcome of his assault. In Bohanon‘s
We note at the outset that because Bohanon does not allege that the City directly violated his rights, his “claim presents ‘difficult problems of proof.‘” Dean, 18 F.4th at 236 (quoting Brown, 520 U.S. at 406). A gap in policy “amounts to municipal action for Monell purposes only if the [municipality] has notice that its program will cause constitutional violations.” J.K.J., 960 F.3d at 379 (emphasis added). Typically notice is established by “a prior pattern of similar constitutional violations.” Id. at 380. Here, the parties agree that no similar incident—let alone a pattern of similar incidents—had occurred since General Order 3.24 was enacted.
Bohanon therefore must establish that his case is within the “narrow range of circumstances” where notice can be inferred from the obviousness of the consequences of failing to act. Id. (quoting Brown, 520 U.S. at 409). These cases are “rare.” Dean, 18 F.4th at 236 (quoting Connick v. Thompson, 563 U.S. 51, 64 (2011)). To succeed, Bohanon must show that the “risk of constitutional violations” was “so high ... that the municipality‘s failure to act can reflect deliberate indifference and allow an inference of institutional culpability, even in the absence of a similar prior constitutional violation.” J.K.J., 960 F.3d at 380.
Bohanon did not clear this high bar. In the rare cases where we have found this standard to be met, the risks of municipal inaction have been blatantly obvious. See, e.g., id. at 379, 384 (holding that the lack of a confidential system for
Bohanon has also failed to prove that the City‘s policies were the cause of his injuries. It “is an explicit requirement of
What happened to Bradford Bohanon was a tragedy, and we share the district judge‘s sympathy for Bohanon. But “a municipality cannot be held liable solely because it employs a tortfeasor.” Monell, 436 U.S. at 691. Because Bohanon did not establish municipal fault and moving-force causation, the judge was right to set aside the jury‘s verdict and enter judgment for the City.
AFFIRMED