Dаvid LYTLE; Jeanette Lytle; Joan Maguire, Plaintiffs-Appellees, v. Jack DOYLE, in his official capacity as Norfolk Commonwealth Attorney; Commissioner, of Transportation of the Commonwealth of Virginia, Defendants-Appellants, and City of Norfolk, Virginia, Defendant. David Lytle; Jeanette Lytle; Joan Maguire, Plaintiffs-Appellants, v. City of Norfolk, Virginia, Defendant-Appellee, and Jack Doyle, in his official capacity as Norfolk Commonwealth Attorney; Commissioner, of Transportation of the Commonwealth of Virginia, Defendants.
No. 02-1056. No. 02-1076.
United States Court of Appeals, Fourth Circuit.
Argued: January 23, 2003. Decided: April 14, 2003.
326 F.3d 463
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge MICHAEL and Judge KING joined.
OPINION
WILKINSON, Circuit Judge:
Plaintiffs David Lytle, Jeanette Lytle, and Joan Maguire challenge the constitutionality of
David Lytle, Jeanette Lytle, and Joan Maguire (“the Lytles“) participated in a pro-life demonstration on July 16, 1999, at the Piccadilly Overpass located at the intersection of Norview Avenue and Interstate 64 in Norfolk, Virginia. The Lytles, along with other protesters, were attempting to convey their message to motorists traveling on the interstate below by displaying large signs depicting their views on abortion. The Virginia Department of Transportation had previously hung “No Loitering” signs on this overpass. The Lytles ceased their protest activities when they were threatened with arrest for their conduct. They now challenge the facial constitutionality of
Prior to the present incident, protesters had staged at least two other pro-life demonstrations on the Piccadilly Overpass. On July 25, 1997, the Lytles gathered with other protestors at the overpass and were ordered by state and local police officers to leave.
Following the second incident, Captain Sharon Chamberlain asked Lieutenant Betty Davis to investigate different options for handling the ongoing problems at the overpass. At some point in August 1998, “No Loitering” signs were posted at the Overpass, presumably by the Virginia Department of Transportation. The signs were most likely posted at the request of someone in the police department. However, neither the City Manager, the Assistant City Manager overseeing the police department, nor the Chief of Police knew of their existence.
On August 7, 1998, Davis prepared a memorandum instructing officers on how to deal with protestors on the Piccadilly Overpass. The Davis Memo advised any officer who observed demonstrators on the bridgе to issue a summons pursuant to
After being informed of the July 16, 1999, demonstration and the circumstances surrounding it, the Chief of Police disseminated a memorandum to all commands in the Norfolk Police Department stating that the Attorney Generаl‘s office was reviewing the constitutionality of
The Office of the Attorney General discovered that the “No Loitering” signs posted on the Piccadilly Overpass had never been approved by the Commissioner or his designee. Based on this determination, the charges against the two protestors were dropped and the Lytles were notified that the Commonwealth was suspending enforcement of the statute on thе bridges in the area.
On August 27, 1999, the Lytles filed a complaint against Charles Brewer,1 Charles Griffith, in his official capacity as Norfolk‘s Commonwealth‘s Attorney, and Governor James Gilmore challenging the constitutionality of
On November 2, 1999, the district court granted the Lytles’ motion for a preliminary injunction. See Lytle v. Brewer, 73 F.Supp.2d 615, 619 (E.D.Va.1999). The Governor and Commonwealth‘s Attorney appealed and contended the Governor was not a proper party to the litigation. See Lytle v. Griffith, 240 F.3d 404 (4th Cir. 2001). On remand, the district court dismissed the Governor but permitted the Lytles to substitute Charles Nottingham, in his official capacity as the Commissioner of Transportation of Virginia, as the appropriate defendant. Lytle v. Doyle, 197 F.Supp.2d at 482.
The parties then filed cross-motions for summary judgment. On December 17, 2001, the district court declared
II.
A.
The
The Supreme Court addressed this issue in City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). In that case, the Chicago City Council enacted an ordinance that prohibited “criminal street gang members” from “loitering” with one another or with other persons in any public place. Morales, 527 U.S. at 45-46, 119 S.Ct. 1849. The ordinance created a criminal offense punishable by a fine of up to $500 and imprisonment for not more than six months. Id. at 47, 119 S.Ct. 1849. While recognizing Chicago‘s interest in reducing gang criminality, the Court nonetheless found the statute void for vagueness because “the definition of `loiter’ provided by the ordinance [did] not assist in clearly articulating the proscriptions of the ordinance.” Id. at 51, 119 S.Ct. 1849 (quoting City of Chicago v. Morales, 177 Ill.2d 440, 227 Ill.Dec. 130, 687 N.E.2d 53, 60-61). Because being in a gang is not itself illegal, and because standing in a given location also is not per se illegal, individuals were left unsure when they might run afoul of the law. Id. at 57. This statute, therefore, did not provide the type of fair warning that the
Here, as in Morales, “the vagueness that dooms this ordinancе is not the product of uncertainty about the normal meaning of `loitering,‘” but rather about what specific conduct is covered by the statute and what is not. 527 U.S. at 57, 119 S.Ct. 1849.
As the Commissioner noted in his brief, “loitering” has “by long usage acquired a common and accepted meaning.” According tо Webster‘s Dictionary, this meaning is “to stand idly about.” Webster‘s II New College Dictionary 645 (1999). The expressive activity in which these plaintiffs engaged, however, does not fall within this definition. Loitering is aimless. Social protest is by definition purposeful. The Lytles were exercising their
B.
While we agree that
The district court held that
Under the district court‘s mens rea logic, the State would be unable to protect this interest by prohibiting people from congregating in certain areas at certain times. That view is incorrect. The Supreme Court has already held that valid safety interests “cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection.” Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). So, for example, “[o]ne would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly.” Id.
Although
III.
We turn next to the Lytles’ cross appeal on the issue of municipal liability. The Lytles argue that the district court erred in granting summary judgment to the City on the Lytles’
To prevail on a
A.
The Lytles first argue that the Davis Memo constituted an official City policy because the memo contained a fixed plan for dealing with protestors that was intended for indefinite enforcement. Lieutenant Brewer was following this plan, they contend, when he threatened the Lytles and therefore the City should be liable for their injury. The Davis Memo, however, cannot constitute an official written policy of the City because it was never approved by the City Manager in whom the Norfolk City Charter vests ultimate authority over the police department. See Norfolk City Charter §§ 50, 60.
The Lytles try to surmount this obstacle by arguing that the City attempted to insulate itself from liability by deliberately allowing the formulation of police procedures without City Manager review. Although “egregious attempts by local governments to insulate themselves from liability for unconstitutional polices are precluded,” St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion), there is no indication in the record that the City of Norfolk undertook such actions. The City‘s policies specifically require that no one with a rank lower than Chief of Police issue any written directives. And when the Chief of Police learned of the unauthorized memo, he immediately suspended its enforcеment and the application of
Moreover, the record indicates that few, if any, officers in the division were even aware of the Davis Memo. The memo was never pointed out to the officers, and its contents were never communicated to them. Lieutenant Brewer testified that he had never seen the memo before Captain Chamberlain handed it to him on July 16, 1999. Thus, this document was merely an unauthorized memorandum written by a police captain that was followed by a Norfolk police officer on a single occasion — not an official City policy.
B.
The Lytles next argue that Captain Chamberlain was a final policymaker for the City for the purposes of setting policy within her Second Patrol Division. Because the City Manager gave Captain Chamberlain no direction or guidance concerning protest activity on the Piccadilly Overpass, the Lytles argue that she had unbridled discretion to establish the City‘s policy in this arena. Therefore, Chamberlain‘s approval of the Davis Memo was sufficient to establish a municipal policy for which the City should be held liable.
A “final policymaker” for the purposes of municipal liability is someone who has “the responsibility and authority to implement final municipal policy with respect to a particular course of action.” Riddick v. School Bd. of the City of Portsmouth, 238 F.3d 518, 523 (4th Cir.2000) (emphasis deleted). A local government may be held liable for a decision made by an individual “whose edicts or acts may fairly be said to represent official policy.” Id. However, merely “going along with the discretionary decisions made by one‘s subordinates... is not a delegation to thеm of the authority to make policy.” Praprotnik, 485 U.S. at 130, 108 S.Ct. 915. Additionally, the type of policymaking authority which can invoke
The Norfolk City Charter provides that the City Manager, acting as the director of public safety, is in charge of the police department. All orders, rules, and regulations applicable to the entire police department must be approved by the City Manager. The City Manager is therefore clearly the final policymaker for purposes of
Moreover, the City Manager and Chief of Police did not delegate power to Captain Chamberlain. At all times the power to make decisions for the department rested with them. In fact, as we have already pointed out, the Chief of Police issued a directive that the Davis Memo should not be followed as soon as he learned of its existence. The police department has multiple captains and multiple lieutenants, and it is far-fetched to assert that each of these individuals has the power to be a final policymaker for the city. Captains are sixth in the chain of command for the department, far from the level where ultimate policy decisions are made. And while Virginia courts are split as to who exactly may be a final policymaker for
C.
Even if Captain Chamberlain is not deemed a final policymaker, the Lytles argue that the City should be held liable because enforcement of
It is well settled that “isolated incidents” of unconstitutional conduct by subordinate employees are not sufficient to establish a custom or practice for
Moreover, the Davis Memo cannot be a custom or practice when there is no evidence that any officer within the Second Patrol Division ever even read it. Lieutenant Brewer had not heard of the Davis Memo until the date of the incident in question. If applying
Lastly, the Lytles argue that the City should be liable because it showed deliberate indifference to their rights by failing to adequately train Norfolk police officers in citizens’ First and Fourteenth Amendment rights. The way in which a City chooses to train its police force is “necessarily a matter of policy.” Spell, 824 F.2d at 1389.
The training provided to officers in the Norfolk Police Department is extensive, varied, and on-going. The officers must attend basic recruit school, receive four months of field trаining, and attend inservice training and regular seminars on special topics. The Lytles have not provided any evidence that additional training would have resulted in Lieutenant Brewer or the other Norfolk police officers responding any differently. Officers cannot be expected to analyze the complex issues of law surrounding every statute they are required to enforce and then to decide whether the statute is constitutional. And the City cannot be required to anticipate every situation that officers will face. Board of Com‘rs of Bryan Cty. v. Brown, 520 U.S. 397, 409-10, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). The situation here was hardly one that occurred with sufficient frequency such that a failure to properly train officers to handle it reflected a reckless indifference to the Lytles’ rights.
Further, a failure to train can only form a basis for liability if “it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations.” Canton, 489 U.S. at 397, 109 S.Ct. 1197 (O‘Connor, J., concurring in part and dissenting in part). In this case, the City Manager was unaware of any constitutional violations committed against protestors by the police department. And the three incidents that the Lytles point to do not constitute a pattern of unconstitutional conduct of which the City‘s final policymakers should have been aware. See Carter, 164 F.3d at 220. We can thus find no action or omission on the part of the Norfolk Police Department that would lead to municipal liability.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.