Jill BROWN, Plaintiff-Appellee, Cross-Appellant, v. BRYAN COUNTY, OK, et al., Defendants, Bryan County, OK and Stacy Burns, Defendants-Appellants, Cross-Appellees.
No. 93-5376
United States Court of Appeals, Fifth Circuit
Oct. 23, 1995
67 F.3d 1174
We need not decide whether the procedural protections of the due process clause of the Fourteenth Amendment require such disclosure, because even if such a right exists, it was not clearly established at the time of the state court custody proceedings. Therefore, the appellees are entitled also to qualified immunity with respect to the Kisers’ procedural due process claims.
III.
For the foregoing reasons, the judgment is AFFIRMED.
Jack G. Kennedy, Kennedy, Minshew, Campbell, Sherman, TX, Wallace B. Jefferson, Sharon E. Callaway, Crofts, Callaway & Jefferson, San Antonio, TX, for appellant.
J. Kermit Hill, Duke Walker, Hill, Ellis & Walker, Sherman, TX, Brian J. Serr, Professor of Law, Baylor Law School, Wacо, TX, for appellees.
Before REYNALDO G. GARZA, WIENER and EMILIO M. GARZA, Circuit Judges.
SUBSTITUTE PANEL OPINION1
A claim for damages was brought against Reserve Deputy Stacy Burns (Burns) and Bryan County, Oklahoma (Bryan County),2 by Jill Brown (Mrs. Brown) pursuant to
BACKGROUND
In the early hours of May 12, 1991, Todd Brown (Mr. Brown) and Mrs. Brown were traveling from Grayson County, Texas, to their home in Bryan County, Oklahoma. After crossing into Oklahoma, Mr. Brown, who was driving, noticed a police checkpoint. He decided to avoid the checkpoint and headed back to Texas, allegedly to spend the night at his mother‘s house. Although the parties offer conflicting stories leading to the pursuit, Deputy Sheriff Robert Morrison (Deputy Morrison) and Burns stated that they “chased” the Browns’ vehicle at a high rate of speed before successfully pulling it over. Mr. Brown testified that he was oblivious to the deputies’ attempts to overtake him until both vehicles had traveled approximately three miles.3 By the time the two vehicles eventually stopped, the parties had crossed
Immediately after exiting the squad car, Deputy Morrison unholstered his weapon, pointed it toward the Browns’ vehicle and ordered the occupants to raise their hands. Burns, who was unarmed,4 rounded the corner of the truck to the passenger‘s side. After twice ordering Mrs. Brown from the vehicle, Burns pulled her from the seat of the cab and threw her to the ground. Burns employed an “arm bar” technique whereby he grabbed Mrs. Brown‘s arm at the wrist and elbow, extracted her from the vehicle and spun her to the ground. Mrs. Brown‘s impact with the ground caused severe injury to her knees, requiring corrective surgery.5 While Mrs. Brown was pinned to the ground, Burns handcuffed her and left to assist Dеputy Morrison in subduing her husband. Mrs. Brown remained handcuffed anywhere from a minimum of thirty minutes to just over an hour.
According to Mrs. Brown‘s version of the facts, which will be reviewed in greater detail below, the deputies’ pursuit and the force consequently applied against her were unprovoked. Furthermore, she claims that her detention constituted false imprisonment and false arrest. Due to the injuries resulting from that encounter, Mrs. Brown seeks compensation from Burns and Bryan County. Mrs. Brown premised the county‘s liability, inter alia, on the hiring of Burns by Sheriff B.J. Moore (Sheriff Moore), the county policymaker for the Sheriff‘s Department.
DISCUSSION
The Appellants have presented this Court with a host of issues to support their position that the lower court erred. For efficiency‘s sake, we will address only those points that we believe merit review. We first address the claims against Burns for the constitutional injuries that Brown suffered.
I.
In their first argument, Burns and Bryan County allege that the force applied against Mrs. Brown was proper. Appellants claim that the evidence “undisputedly” established that Burns’ actions on the morning of May 12, 1991, were objectively reasonable. Therefore, the jury‘s findings should be reversed.
All claims that a law enforcement officer has used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen, are analyzed under the Fourth Amendment and its “reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The test of reasonableness under the
careful attention to the facts and circumstances of each particular cаse, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
Id. at 396, 109 S.Ct. at 1872. The “reasonableness” of the particular force used must be judged from the perspective of a reasonable officer at the scene, rather than with the 20/20 vision of hindsight. Id. In cases implicating excessive force, “not every push or shove, even if it may later seem unnecessary in the peace of a judge‘s chambers,” violates the Fourth Amendment. Id. (citation omitted). Thus, the question is whether the officer‘s actions are “objectively reasonable” in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. Id. at 397, 109 S.Ct. at 1872.
Determining whether Burns’ actions were reasonable depends on whose story the trier of fact accepts as true. According to the testimony of Burns and Deputy Morrison, they were involved in a “high-speed” pur-
Certainly, Appellants’ version of the facts supports a claim that Burns acted reasonably and with an appropriate amount of force. The Browns, however, paint a strikingly different picture. They testified that they were oblivious to the attempts made by the deputies to catch up to them (the Browns) after avoiding the Oklahoma checkpoint.8 Mr. Brown avoided that stop because he feared the possibility of being harassed or unnecessarily detained by the deputies.9 He further testified that he did not believe that he turned the truck around either in a reckless fashion nor with wheels squealing or throwing gravel, and that he drove away at a normal rate of speed. Finally realizing that they were being pursued, Mr. Brown pulled over only to find a gun pointed at him. They were ordered to put their hands up and they did so.
Mrs. Brown then testified that Burns ran to her side of the vehicle and ordered her to get out. She was paralyzed with fear and heard Burns repeat the command. According to her testimony, however, she was not slow in responding to Burns’ orders and she did not make any sudden moves while exiting the vehicle. Her only forward movement was to exit the truck and, contrary to Burns’ testimony, she did not reach for anything. Then, while she was exiting thе truck, Burns suddenly grabbed her arm, yanked her out, spun her around and threw her to the pavement. She could not break her fall because one arm was raised and Burns firmly gripped the other.
In addition to this conflicting testimony, both sides elicited expert testimony concerning the reasonableness of Burns’ actions. Mrs. Brown‘s expert, for example, concluded that the force applied by Burns in this situation was unjustified and excessive.10 The jury weighed all the evidence, evaluated the conflicting testimony and rendered a verdict in Mrs. Brown‘s favor. Under our standard of review,11 when the evidence supports the verdict, this Court will not impose its own opinion in contravention to the jury‘s. Therefore, we will not interfere with the fact finder‘s conclusion that Burns’ actions werе unreasonable and that the force he used was excessive.
Notwithstanding the jury‘s findings, Appellants also assert that there was probable cause to arrest Mrs. Brown. They argue that the facts justified Burn‘s actions, thereby precluding Mrs. Brown‘s § 1983 claim for false arrest.
There is no cause of action for false arrest under § 1983 unless the arresting officer lacked probable cause. Fields v. City of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir.1991). To determine the presence or absence of probable cause, one must consider the totality of the circumstances surrounding the arrest. United States v. Maslanka, 501 F.2d 208, 212 (5th Cir.1974), cert. denied, 421 U.S. 912 (1975). Whether officers have probable cause depends on whether, at the time of the arrest, the “facts and circumstances within their knowledge and of which they had reasonably trustworthy information were suffiсient to warrant a prudent man in believing that [the arrested] had committed or was committing an offense.” Id. (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Furthermore, although flight alone will not provide probable cause that a crime is being committed, in appropriate circumstances it may supply the “key ingredient justifying the decision of a law enforcement officer to take action.” United States v. Bowles, 625 F.2d 526, 535 (5th Cir.1980) (quoting United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied, 429 U.S. 979 (1976)).12
To reiterate, whether Burns had probable cause to arrest Mrs. Brown depends in large part on whether the facts, as Burns knew them, were sufficient to warrant a prudent man‘s belief that Mrs. Brown committed or was in the process of committing a crime. The facts material to that determination were hotly contested, especially the contradictory testimony relating to the pursuit and Mrs. Brown‘s movements while exiting the vehicle. Thus, it was for the fact finder to determine whether Burns had probable cause to arrest Mrs. Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602 (5th Cir. 1994). Assuming arguendo that the deputies had a reasonable suspicion to perform an investigatory stop, we nevertheless find the evidence sufficient to support the jury‘s finding that Burns did not have probable cause to arrest Mrs. Brown, and that his doing so violated her constitutional right to be free from false arrest.
As the jury found that Burns did not have probable cause to detain or arrest Mrs. Brown, it could also find from the evidence that she was falsely imprisoned. To set out a claim for false imprisonment the plaintiff must prove (1) an intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm. Harper v. Merckle, 638 F.2d 848, 860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816 (1981). Under § 1983, the plaintiff must also prove the deprivation of a constitutional right, i.e., an illegality under color of state law. Id. The evidence establishes that Mrs. Brown believed herself to be under arrest: even though she had committed no crime, she remained handcuffed for approximately an hour before being released, during which
III.
Appellants also contest the jury‘s finding that Burns was not entitled to qualified immunity. A proper analysis of a qualified immunity defense requires us to conduct a two (sometimes three) prong inquiry. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). First, we determine “whether the plaintiff has assеrted a violation of a constitutional right at all.” Siegert, 500 U.S. at 232. Second, we establish whether the law was clearly established at the time of the official‘s action. Siegert, 500 U.S. at 233; Harlow, 457 U.S. at 815-19. Third, we evaluate the “objective reasonableness of [the] official‘s conduct as measured by reference to clearly established law.” Harlow, 457 U.S. at 818. It is clear that by 1991, use of excessive force, false arrest and false imprisonment had been held to violate citizens’ constitutional rights, thus the qualified immunity defense fails if Burns did not act with probable cause. And as the trier of fact determined that Burns did not have probable cause to arrest Mrs. Brown, he is not entitled to qualified immunity.14
IV.
Burns asserts that the evidence is insufficient to support the jury‘s award of punitive damages. He argues that application of the arm bar technique did not rise to a level of “flagrant” conduct and further, that it did not evidence malice or give rise to an inference of evil intent.15 Nevertheless, the Supreme Court has ruled that punitive damages are recoverable in a § 1983 action. Smith v. Wade, 461 U.S. 30, 35, 103 S.Ct. 1625, 1629, 75 L.Ed.2d 632 (1983). One of the primary reasons for § 1983 actions and punitive damages is to deter future egregious conduct. Id. at 49, 103 S.Ct. at 1636. A jury may assess punitive damages in an action under § 1983 if the defendant‘s conduct is shown to be motivated by evil motive or intent, or involved reckless or callous indifference to the federally protected rights of others. Id. at 56, 103 S.Ct. at 1640. The question is whether the acts of Burns, which caused the deprivation of Mrs. Brown‘s constitutional rights, rose to a level warranting the imposition of punitive damages. In light of the evidence before it, we believe that the jury could properly infer that Burns’ acts were unjustified and that he acted with callous or reckless indifference to Mrs. Brown‘s constitutional rights. Therefore, punitive damages were justified.
V.
On cross-appeal, Mrs. Brown argues that it was error for the district court to grant Appellants’ Motion for Judgment Notwithstanding the Jury Verdict (JNOV) as it relates to her claims for loss of past income and future earning capacity.16 Mrs. Brown asserts that neither Bryan County nor Burns specifically raised an issue concerning the sufficiency of the evidence supporting that
This Court has determined that it “would be a constitutionally impermissible re-examination of the jury‘s verdict for the district court [or this Court] to enter judgment n.o.v. on a ground not raised in the motion for directed verdict.” McCann v. Texas City Refining, Inc., 984 F.2d 667, 672 (5th Cir.1993). It is undisputed that the Appellants did not address the sufficiency of the evidence supporting the jury‘s award for loss of past income and future earning capacity in their motions for either directed verdict or JNOV. Thus, the lower court should not have decided whether sufficient evidence exists to support this award. However, as the Appellants point out, Mrs. Brown failed to object tо this error at trial, and it is the “unwavering rule in this Circuit that issues raised for the first time on appeal are reviewed only for plain error.” Id. In other words, this Court will reverse only if the error complained of results in a “manifest miscarriage of justice.” Id. Furthermore, contrary to Mrs. Brown‘s contention, the issue is not whether any evidence exists to support the jury verdict. Instead, the issue is whether the district court‘s action constituted plain error.
Upon reviewing the record, we do not believe that the lower court‘s error resulted in a manifest miscarriage of justice. The only evidence offered in support of the award comprised of Mrs. Brown‘s testimony, which reflected that she had accepted an offer to commence work a few days after the day of the incident. Her compensation would have been measured on a commission basis, which she believed would have paid between $1,500 to $1,800 a month. The district court‘s ruling that this evidence was lacking does not arise to plain error. Mrs. Brown‘s failure to object at the appropriate time denied the district court the opportunity to rectify any errors. Therefore, the court‘s ruling will stand.
VI.
Having found that Burns violated Mrs. Brown‘s constitutional rights, the next inquiry concerns the possible liability of Bryan County. Liability will accrue for the acts of a municipal official when the official possesses “final policymaking authority” to establish municipal policy with respect to the conduct that resulted in a violation of constitutional rights. Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986) (plurality opinion).
Bryan County stipulated that Sheriff Moore was the final policymaker for the Sheriff‘s Department. As such, it is patently clear that Sheriff Moore17 is an official “whose acts or edicts may fairly be said to represent official policy and whose decisions therefore may give rise to municipal liability under § 1983.” Id. at 480, 106 S.Ct. at 1299 (citing Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978)).
Mrs. Brown argues that a municipality can be held liable under § 1983 based on a final policymaker‘s single decision regarding the hiring or training of one individual. Appellants, on the other hand, argue that § 1983 liability cannot attach on the basis of a policymaker‘s single, isolated decision to hire or train one individual.
An argument similar to the Appellants’ was rejected by this Court in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir.1993). In Gonzalez, the Ysleta Independent School District (YISD) was sued for a single decision to transfer a teаcher accused of sexually harassing a student, rather than removing him from the classroom. YISD argued that this ad hoc, isolated decision, even when made by policymakers, did not constitute the sort of “policy” upon which municipal liability could be predicated under
Based on the facts before it, the Gonzalez panel concluded that the final policymaker‘s single, conscious decision, i.e., the Board of Trustee‘s decision to transfer the teacher rather than remove him from the classroom, constituted a “policy” attributable to the school district. Gonzalez, 996 F.2d at 754. This conclusion was logical, as “[n]o one has ever dоubted ... that a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body ... because even a single decision by such a body unquestionably constitutes an act of official government policy.” Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298 (emphasis added).18 To deny compensation to the victim in such a case would be contrary to the fundamental purpose of § 1983. Id. at 481, 106 S.Ct. at 1299. So, it is clear that a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity.
Mrs. Brown argues that Burns’ lengthy criminal history should have prevented Sheriff Moore from hiring him. Burns’ history revealed a string of offenses that, she claims, demonstrates a disregard for the law and a propensity for violence. Moreover, she maintains that a thorough investigation of Burns’ background would have revealed that his parole had been violated by his numerous offenses. Thus, she argues that Burns’ screening and subsequent employment by Sheriff Moore were inadequate and subjected Bryan County to liability.
During the application process Sheriff Moore ordered a printout of Burns’ criminal record, which revealed the following citations and arrests: nine moving traffic violations, Actual Physical Control (APC) of a motor vehicle while intoxicated, driving with a suspended license, arrest for assault and battery, conviction for possession of a false identification and an arrest for resisting lawful arrest. When Sheriff Moore was examined about Burns’ “rap sheet,” the following exchange took place:
Q. Did you make an inquiry with the proper authorities in Oklahoma to get a copy of Mr. Burns’ rap sheet?
A. I run his driving record, yes.
Q. All right. And you can get that rap sheet immediately, can‘t you?
A. It don‘t take long.
Q. All right. And did you not see on there where Mr. Burns had been arrested for assault and battery? Did you see that one on there?
A. I never noticed it, no.
Q. Did you notice on there he‘d been arrested or charged with [Driving While License Suspended] on several occasions?
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A. I‘m sure I did.
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Q. All right. Did you notice on there that he‘d been arrested and convicted for possession of false identification?
A. No, I never noticed that.
Q. Did you notice on there where he had been arrested for public drunk?
A. He had a long record.
Q. Did you notice on there where he had been arrested for resisting arrest?
A. No, I didn‘t.
Q. Did you make any inquiries after you got that information to determine exactly what the disposition оf those charges were?
A. No, I didn‘t.
Q. Did you not make any attempt to find out the status of Mr. Burns’ criminal record at that time?
A. As far as him having a criminal record, I don‘t believe he had a criminal record. It was just all driving and—most of it was, misdemeanors.
Q. Well, did you make any attempts to determine whether or not Mr. Burns was on probation at the time you placed him out there?
A. I didn‘t know he was on probation, no.
Q. Did you make any effort to find out?
A. I didn‘t have no idea he was on probation, no.
Q. Well, you saw on his rap sheet where he had been charged with [Driving Under the Influence], didn‘t you?
A. I had heard about that. I don‘t remember whether I had seen it on the rap sheet or not.
Q. So you‘d heard about it?
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A. I don‘t remember whether I seen it on the rap sheet or heard about it.
Besides this damaging testimony, Mrs. Brown‘s expert19 testified regarding the importance of properly screening law enforcement applicants. The expert testified that a thorough investigation process is needed to weed out individuals who enter the police force for the wrong reasons, for example, because “they like to exert their power.” In light of Burns’ arrest record, the expert concluded that he showed a “blatant disregard for the law and problems that may show themselves in abusing the public or using excessive force,” thereby rendering Burns unqualified for a position in law enforcement. The expert further testified that as a minimum, Sheriff Moore should have investigated the disposition of the charges against Burns. Even Appellants’ expert, Ken Barnes, agreed that Burns’ criminal history should have caused some concern, meriting a further review of the applicant. More importantly, when Mr. Barnes was asked if he would hаve hired Burns, he replied that it was “doubtful.”
From the foregoing evidence, the jury could have reasonably inferred that Sheriff Moore “closed his eyes” to Burns’ background when hiring him. This inference is reinforced by Burns’ familial relations within the Sheriff‘s Department: not only is Burns the son of Sheriff Moore‘s nephew, but Burns’ grandfather had been involved with the department for more than sixteen years. Alternatively, the jury could have inferred that Sheriff Moore was indeed aware of Burns’ past problems with the law and was therefore cognizant of his deficient character, but nevertheless opted to employ him because he was “family“.20 Again, the innuendos of nepotism only bolster the inference that Burns would have been hired regardless of his criminal history.
We believe that the evidence supports the jury‘s conclusion that Sheriff Moore did not conduct a good faith investigation of Burns. Although it is true that Sheriff Moore ran a NCIC check of Burns, this action was futile given that Burns’ arrest history was all but ignored. Sheriff Moore conceded that Burns’ record was so long that he did not bother to examine it. And, except for this feeble attempt to screen him, no other effort was made to investigate Burns. A further examination would have revealed that Burns had repeatedly violated probation, and that a warrant was subsequently issued for his arrest. In light of this history, it should have been obvious to Sheriff Moore that a further investigation of Burns was necessary.
We also find the evidence sufficient for a jury to conclude that Sheriff Moore‘s decision to hire Burns amоunted to deliberate indifference to the public‘s welfare. See Stokes v. Bullins, 844 F.2d 269, 275 (5th Cir.1988);
Additionally, the jury could find that hiring an unqualified applicant and authorizing him to make forcible arrests actually caused the injuries suffered by Mrs. Brown. That is, the policymaker‘s (Sheriff Moore‘s) single action of hiring Burns without an adequate review of his background directly caused the constitutional violations of which Mrs. Brown now complains. Benavides, 955 F.2d at 972; Fraire v. City of Arlington, 957 F.2d 1268, 1277 (5th Cir.) (section 1983 liability attaches only “where the municipality itself causes the constitutional violation” at issue), cert. denied, 506 U.S. 973, 113 S.Ct. 462, 121 L.Ed.2d 371 (1992). Therefore, the violation of Mrs. Brown‘s constitutional rights was affirmatively linked to Bryan County‘s decision to hire Burns for law enforcement activities. Stokes v. Bullins, 844 F.2d 269, 276 (5th Cir.1988).
CONCLUSION
After a thorough review of the record, this Court finds that the evidence supports the jury‘s verdict holding Burns and Bryan County liable for Mrs. Brown‘s § 1983 claim based on her false arrest, false imprisonment and the inadequate hiring of Burns. We also find that the district court did not plainly err in dismissing the jury‘s award for Mrs. Brown‘s loss of past income and future earning capacity. For these reasons, the jury‘s verdict stands and the district court‘s judgment is AFFIRMED.
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part:
Although I concur in most of the opinion of the Court, I dissent from Part VI of the opinion and the judgment as to Bryan County. My disagreement is with the majority‘s treatment of the Monell1 issue—“it is clear that a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity” maj. op. at 1183—which is based on our prior opinion in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir.1993).
Clearly, Sheriff Moore was a policymaker under Monell; clearly, he hired Reserve Deputy Stacy Burns; clearly, there is sufficient еvidence to support a finding that Sheriff Moore was deliberately indifferent in failing to conduct an adequate background investigation.2 However, one inadequate back-
I do not agree, therefore, with the majority‘s implicit reasoning that any “distinction between policies that are themselves unconstitutional and those that cause constitutional violations” is “metaphysical.” Tuttle, 471 U.S. at 833 n. 8, 105 S.Ct. at 2441 n. 8 (Brennan, J., concurring). The majority incorrectly, in my opinion, follows our opinion in Gonzalez in holding that Sheriff Moore‘s single decision created municipal liability, without reconciling the Supreme Court‘s instruction in Tuttle that a jury must have “considerably more proof than the single incident” before it can find causation. There is a constitutional difference between a sheriff ordering his deputies to violate citizen‘s constitutional rights, see, e.g., Pembaur, 475 U.S. at 484-85, 106 S.Ct. at 1300-01 (imposing liability for County Prosecutor‘s direct order to police officers to violate Fourth Amendment), and one that hires a reserve deputy without conducting an adequate background investigation. In the latter instance, greаter proof is required in order to establish the connection between the policy and the constitutional violation. See Pembaur, 475 U.S. at 482 n. 11, 106 S.Ct. at 1299-1300 n. 11 (plurality opinion) (noting that Tuttle required the plaintiff to “establish that the unconstitutional act was taken pursuant to a municipal policy rather than simply resulting from such a policy in a ‘but for’ sense“); see also City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989) (requiring a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation“); Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.) (requiring plaintiff to show that “the inadequate hiring policy directly caused the plaintiff‘s injury“), cert. denied, 506 U.S. 824, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992).
The Court in Pembaur concluded “that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Pembaur, 475 U.S. at 480, 106 S.Ct. at 1298. The Court also stated that Tuttle was “consistent” with its holding that “the policy which ordered or аuthorized an unconstitutional act can be established by a single decision by proper municipal policymakers.” Id. at 482 n. 11, 106 S.Ct. 1299-1300 n. 11 (plurality opinion). Therefore, it is not clear that Sheriff Moore‘s single act of deliberate indifference in fact established “policy,” even though Pembaur holds that a single act “may” or “can” establish policy “under appropriate circumstances.” I do not believe that the Court in Pembaur intended to suggest that any and every act by a final municipal policymaker constitutes, without more, “municipal policy.” Sheriff Moore‘s deliberate indifference may have caused the constitutional violation in a “but for” sense, but it did not directly “order” or “authorize” the violation. Where the policymaker‘s decision does not directly “order” or “authorize” the constitutional violation, something more than a single decision is required in order to find that this decision in fact constitutes “municipal policy,” such that we can hold the county liable. Therefore, in my view, Brown failed to establish the constitutional liability of the county on the basis of Sheriff Moore‘s single decision.3
Accordingly, I would affirm the district court in all aspects, except that I would reverse as to Bryan County.