*1 employees, the had no generally tributors hearing before in the developed record a fee were more like exacted proper- payments Board judge, the law administrative distributorship than evi- present to obtain order the distributors ly concluded repre- bargaining agree- not of a true collective meeting were dence May 1987 of conditions bargaining governing multi-employer ment terms of a sentatives bargain on behalf employment. authorized association Jersey distributors. the New Therefore, conclusion that the Board’s during bargaining association did presented multi-employer evidence was No Jersey from New Jer- to a New distributors the distributor bind the hearing that not May picketing 1987 meet- that the 1989 present in 1987 and who was contract sey authority any actual to force those dis- designed possessed therefore was intent” from oth- “unequivocal Incorpo- bargain through the evidence tributors Dry distributors Jersey supported Canada substan- er New rated Association only testi- behalf. their negotiate on as a in the record whole. tial evidence authority came from his regarding mony agent implied who 812 business Local III. possessed Jersey distributor New that in Accordingly, we conclude Febru- he was a director authority because violated ary Local 812 and March which, in the busi- Association Incorporated 8(b)(4)(A) by picketing of the Act section view, authorized to bar- agent's ness Dry’s distribution centers three Canada But Jersey distributors. the New gain for by halting deliveries Jersey and New (1) that: hearing record reveals Dry’s plant Canada unionized drivers from even was not Incorporated Association Point, York to the centers. College New cer- 1987 when the September until formed We, therefore, Board’s orders enforce (2) filed; and incorporation was tificate and direct immediate against Local 812 ex- Incorporated Association even compliance therewith. not for multi- it was formed May, isted pur- bargaining purposes but
employer and to deal auto
chasing group insurance mutual interest. problems of business
with
Furthermore, provide Local 812 could agree- bargaining any collective
copies Jersey binding distributors SIMMONS, the New ments Administratrix Delores meeting, despite re- following La Friscoe Estate Daniel during six Simmons, requests for them Appellees, peated attempted transfer to prior to the months Local 125. PHILADELPHIA; Police OF CITY a 1987 argues that Local 812 also Panati, Badge No. A. Officer bargaining agreement was collective Appellants. of New conduct because later reached 90-1118. No. paying union welfare Jersey distributors seeking mod contributions pension Appeals, Court United States in the fund contribution welfare ifications Circuit. Third payments But these proves adoption. rate Argued Sept. required distributors were because arose 18, 1991. Decided Oct. pay quasi-premium Dry by Canada Dry’s effort to Canada Local 812 Rehearing In Banc Rehearing and pay exclusively one union. The deal 21, 1991. Denied Nov. technically pursuant to the so- ments were agreement bargaining collective called agreements. in the distributor
mentioned Jersey dis-
However, New given *6 Lillie, Solicitor, Norma
Charisse S. Claims, Weaver, Deputy Charge Chief (argued), B. Divisional Miriam Brenaman Deputy Charge Appeals, City of Phila- Pa., Dept., Philadelphia, delphia, Law for appellants. Frost, (argued), B. DeMes-
Mark Frost Rudow, Pa., Philadelphia, ap- quita & pellees. SLOVITER, Judge, and
Before Chief WEIS, Judges. BECKER and Circuit THE ANNOUNCING THE JUDGMENT OF COURT OPINION TABLE OF CONTENTS PAGE 1049 I. THE BACKGROUND AND PROCEDURAL HISTORY FACTUAL 1049 Background A. The Factual 1049 Proceedings B. The Trial TO PLAIN- THE ENTITLED TO J.N.O.V. WITH RESPECT II. WAS CITY 1055 FEDERAL TIFF’S CLAIMS? 1983 Ver- Inconsistency Objection its A. Did the Waive § 1055 dicts? 1048
PAGE Verdicts; Requisites for Estab- Inconsistency of the Alleged B. Policy and a Liability for a or Custom Direct Municipality’s lishing a On) 1058 (More Waiver Train; and Failure to 1058 Inconsistency of the Verdicts Alleged 1. The Liability Policy, for a Municipality’s Direct Predicates to 2. The 1059 Custom, Failure to Train 1065 on Waiver 3. More 1066 Sufficiency of the Evidence C. Determining Breached Consti- Whether Standards Potentially Detainees Suicidal Duty to Intoxicated tutional Respect to Plaintiff’s Sufficiency the Evidence With 2. The Allegation Policy Municipal Custom or Respect to Plaintiff’s of the Evidence Sufficiency With 3. The Theory Failure to Train PLAIN- RESPECT TO ENTITLED TO J.N.O.V. WITH THE CITY III. WAS STATE CLAIMS? TIFF’S PENDENT Allege and Argument that Plaintiff Failed to A. Did the Waive any Pendent State Claims? Establish Jury Alleged Errors in the Instructions B. The Permitting Jury to Consider Alleged
1. The Error of Lockup Facilities Condition *7 Jury Directives Instructing the that Police Alleged 2. The Error of Duty 1079 Statutory a or Common Law Establish Duty Lower a Prisoner’s The Instruction that Intoxication Can 1079 Due Care to Exercise Jury the Precon- Failing to Instruct Alleged 4. The Error of Relationship 1080 Duty Arising Special from a ditions to a Liability Respect to Plaintiff’s State City Immune from With C. Is the 1084 Claims? UNDER RULE ENTITLED TO DELAY DAMAGES THE PLAINTIFF IV. IS 238? V. CONCLUSION emotionally dis-
BECKER, trix of the estate of Judge. Circuit hung himself in a young man who turbed judgment of the appeal This is an from a lockup Philadelphia station house after large jury ver- district court entered on a and administra- diet favor of the mother This are respon- arrested for intoxication. sober or can be released to a
having been party. recesses sible requires exploration of the appeal as it rights federal civil law insofar of the Simmons, When detained who municipalities and liability on the bears heavily intoxicated, grew agitated, he municipal under these cir- police officers quite arrest, became concerned his about particularly, appeal this cumstances. More began cry. to The arresting and officers requires predicates of the to a examination attempted to calm him and transported him municipality’s liability policy, for a a cus- District, Police Sixth where tom, employees to train or a failure they placed custody him in the of the facili- Supreme a trio of Court decisions ex- ty’s turnkey, Officer Albert Panati. The municipal panding prerequisites arresting officers informed Panati Depart- liability established Monell v. crying upset Simmons was at the time Services, 658, ment 436 U.S. Social custody. Following that he was taken into (1978). L.Ed.2d 611 This S.Ct. facility, his arrival at the district detention prediction appeal also necessitates of how confused, emotional, Simmons became Supreme de- Pennsylvania Court would deeply concerned about his arrest and its concerning prerequisite to a cide issues consequences. The district court deter- protect an intoxicated and suicidal spite condition, mined of his “[i]n prisoner and the effect of the state’s Tort offense, minor nature of his and his inabili- municipal validity Act on the Claims ty family,” to call his no one at the deten- ordinances, Philadelphia’s, waiving such as facility placed tion a call on Simmons’s immunity liability police negli- from Philadelphia, behalf. Simmons v. gence. Finally, because in a number of F.Supp. (E.D.Pa.1990). In- instances counsel for the defendant of deed, prac- Panati testified that it was his arguably preserve Philadelphia failed to place telephone tice not to calls on behalf appeal, good a points raised on devote permit intoxicated detainees and such explanation deal of attention to an place phone only a detainee call if application principles of waiver and their was, request detainee made
this case. For the reasons that follow judgment, sufficiently officer’s sober. opinion sepa- and in Sloviter’s Panati removed Simmons’s and sun- belt opinion, deny- rate the district court’s order dry personal required belongings of his motions, City’s post-trial judg- by City police placing directive before verdict, delay ment on the and its award of Panati, however, him alone in a cell. did damages will be affirmed. directive, presum- comply with a second ably attempts, to forestall suicide intended I. THE FACTUAL BACKGROUND “[wjhenever possible, provides AND PROCEDURAL HISTORY persons placed minimum of two are *8 Notwithstanding a cell/detention room.” Background,1 A. The Factual directive, customarily attempted Panati this separately, early morning In the hours of the of to house intoxicated detainees 19, 1985, Philadelphia (“City”) po- prevent in order to altercations. Because October Simmons, empty at the time that lice officers took Daniel who was the cell block was Simmons, Panati could not years age prior and had no convic- he incarcerated tions, prison- another custody public into for intoxication. have housed Simmons with directive, er, departmental to a even had he decided Simmons Pursuant in a cell. The City police ordinarily charges do not file should not be left alone determined, however, that against persons, merely intoxicated but district court jails City protective custody they them in until “there were other hold evidence, testimony case are related in the I have set forth the record 1. The facts this also opinion, City greater district court’s see Simmons v. plaintiffs experts in detail somewhat (E.D.Pa.1990). Philadelphia, F.Supp. than did the district court. weighing sufficiency purposes For mons, rights action, instituted this civil totally empty” to which Simmons were not Panati, against taken. Id. U.S.C. Officer could been § City, City Gregor and Police Commissioner ap- cell to returned Simmons’s Panati alleged Sambore. Plaintiff that these de- he first after fifteen minutes proximately fendants had violated various of Simmons’s point, be- At this him there. placed had rights, including rights constitutional his his shoe laces had untied cause Simmons life, process liberty, and due of law under around, Panati re- flopping they and were the fifth and fourteenth amendments and City police a di- step that moved them—a addition, penumbral privacy rights. his immedi- taken instructs should be rective cognate pendent plaintiff asserted tort The district ately upon incarceration. against claims each of the defendants. Pri- “[ajside from remov- court determined however, trial, moved and laces, steps no other were ing the shoe granted permission her was withdraw protect Simmons.” Id. taken to against action Police Commissioner Sam- separated by a wall was Panati’s desk bore. cell which Simmons was from the block held, block turnkey and a had to enter the Proceedings B. The Trial happen- in order to see what was physically log given cell. Panati’s book within plaintiff presented numerous Whereas that, during the time that Simmons showed City’s liability theories of the section 1983 incarcerated, inspected the the officer complaint, attempted in her she to establish precise minute inter- cell block at fifteen City’s liability at trial based on two vals, police directives. in accordance with First, conjoint plaintiff sought theories. admitted, however, that he Panati recorded establish, by expert testimony means of log inspected he had the cells this concerning the state of detention facil- facility exactly every quarter of an processing rules ities and hour, actually regardless when he did so. detainees, violated Simmons’s during right process through
For at least one hour of the time constitutional due custody, he remained policy amounting which Simmons was or custom inattention periodically rattled the quite upset and bars indifference to the serious deliberate Panati, According of his cell. Simmons potentially medical needs of intoxicated and “glassy eyes,” stupor,” was “in a As suicidal detainees. a concomitant respond him to sit did not when Panati told overarching theory, plaintiff sought, down and relax. Panati described Sim- second, to establish that the violated mons’s reactions continued incarcera- to his process rights through due Simmons’s varying hys- tion as between confusion deliberately train indifferent failure to teria. officers to detect and to meet those serious needs.
Slightly more and one-half than one hours after he first had locked Simmons trial, plaintiff At called as a witness Ser- cell, into his Panati discovered Simmons geant Heran of the Police De- John hanging from from the bars of the cell Unit, Planning partment’s Research and from noose that he had made his trousers. which serves the Police Commission- cut and called for a Panati Simmons down responsible drafting depart- er and is medical rescue team. Panati himself made policies procedures. Sergeant mental attempt no to revive Simmons. A rescue *9 years Heran that between the testified approximately team seventeen min- arrived individuals, 1980 and 15 whom utes after Panati had discovered Simmons’s intoxication, public had detained for been death, body. autopsy An revealed City lockups. in Accord- committed suicide .24, alcohol Simmons’s blood level was Heran, year ing to in 1985—the in which legal lim- more than twice the blood-alcohol (including Simmons died—four detainees operating it for a motor vehicle. Simmons) in committed suicide lock- suicide, all killed
Following ups; her son’s all were intoxicated and Simmons’s administratrix, early in hours of the morn- mother and Delores Sim- themselves testimony that all 20 al. ing. qualified revealed The district court Heran’s the first of witnesses, in Rowan, suicide Joseph the individuals who committed these as an ex- did pert and 1985 so City lockups concerning between 1980 in data jail suicides and in articles by hanging police training themselves with techniques prevent- aimed at years prior Sim- clothing. In the five ing them.3 Rowan testified a survey that suicide, had occurred in mons’s no suicides jail completed suicides in 1981 showed lockup.2 the 6th District persons that intoxicated comprised two- police thirds of all suicides in lockups and 20 suicides in Heran testified that jails; of the suicides 75% occurred 1980 and City lockups between 1985 oc- cells, when individuals were isolated in jail 428,000 total of among curred from ar- opposed to housed with one or more rests, 97,141 public for of which were intox- inmates; other jail that most suicides oc- stated, however, ication. He the Re- curred between hours of 12:00 a.m. and Planning compiled search and Unit no a.m.; 6:00 and that most of the individuals statistical information number of who committed in lockups suicide were attempted suicides had occurred in young. five-year in that City lockups period. Nei- ther, Heran, according to had the Research Rowan further testified that this 1981 compiled Planning any psychologi- and Unit survey, widely which was used in training attempted cal data on individuals who had jailers in the monitoring identification and City lockups. or committed suicide in Her- detainees, of suicidal had been made avail- depart- an further testified that none of the police lockups able to all country. mental directives drafted the Research He stated that the statistics on the Planning promulgated by Unit and occurring in jails suicides between 1980 Police Commissioner either dealt with train- particular, and 1985—in the statistic that ing prevention in suicide or set forth warn- 15 of the 20 individuals who committed ing signs of suicide in the of in- behavior (or 75%) comport- suicide were intoxicated — toxicated or otherwise disturbed detainees. ed with the results of survey both the 1981 subsequent survey jail and a on suicides. testimony
Officer Panati’s trial tended to any specific corroborate the fo- absence surveyed jail safety Rowan also stan- prevention cus on suicide con- prior dards issued suicide Simmons’s tinuing education of its officers. Pa- organizations such as the Commission on that, although nati stated he believed Agen- Accreditation for Law Enforcement might training in he have received some (CALEA)4 cies and the American Medical prevention at the suicide Police Acade- Association. Rowan testified that these my nearly twenty years prior to Simmons’s standards directed that intoxicated detain- suicide, having he could not recall received ees, they high because are at a risk of specialized training additional su- sudden death from suicide and other prevention during icide his time as a mem- causes, should be under constant observa- Department. ber of the Police and, lockups possible, tion if while trans- eliciting According ferred to treatment facilities. testimony In addition to Rowan, Heran, additionally Sergeant Panati and of the standards directed Officer expert jail personnel called two tri- witnesses at should be trained trial, however, Testimony consulting agencies. charge 2. indicated one Rowan also was in may compiling or more suicides have occurred in the 6th the 1988 National Suicide Preven- lockup prior Lockups District to 1980. tion Manual for and Jails and has training “keys” identifying two authored managing persons police lockups suicidal qualifications having Rowan’s include served the International Association of Chiefs of Police. survey as co-director of a national on su- jails police lockups, icides in as Director of organization compris- the American Medical Association Standards 4.CALEA is an umbrella Program jails, and Accreditation as Commis- the International Association of Chiefs of Association, Police, sioner of Minnesota’s Youth mission, the National Sheriff's Conservation Com- *10 Organization, Director of Law Enforcement Florida’s Division of Black National Services, prison Youth and as the head of three and the National Police Forum. have averted tendencies, prevention, in could as intoxi- suicide such signs of suicidal suicide. Simmons’s swings from a cation, and mood agitation, intros- of silent anxiety to one high state of Rowan, cross-examining counsel for may the detainee signifying pection, emphasized extremely small City suicide. to commit decided among de- of suicides intoxicated number in had occurred tainees —.00015%—that various deten- testified Rowan Despite City jails between 1980 and 1985. effect at the time in facility standards tion probability extremely small statistical further directed that suicide of Simmons’s any particular intoxicated detainee lockups pre- staffing should be officers suicide, opin- commit was Rowan’s would four minutes to respond within pared to during years each suicide those ion that Be- safety threats to inmates. and health obligation to train offi- increased re- recommended four-minute of this cause It prevent to still another suicide. cers observed, time, these stan- sponse Rowan that each suicide Rowan’s view was also provided that various frequently dards obligation develop to increased monitoring sys- or visual types of audio procedures implementing for specific jail in facilities to be installed tems should ensuring prisoner safe- global directives on supervision staff supplement direct changes physical in the ty and to make that, opinion Rowan voiced members. facilities, as “suicide- jail features of such practic- and the of these standards installing proofing” cells and audio or vis- City police departments, es of other devices, deter monitoring ual that would checking Department’s system of Police future suicides. and oth- particularly intoxicated inmates— erwise called, expert, Dr. Plaintiff as her second by means potentially suicidal ones— Guy, psychiatrist a forensic Edward “grossly checks was sub- fifteen-minute Program of Mental Health Director standard.” Philadelphia System Prison Services survey and the vari- Based on the 1981 Guy the mid-1960s. Dr. testified since time, existing Rowan ous standards that, years prior in the to Simmons’s su- was both opined that Simmons’s suicide icide, Depart- Police officials product negligence and the predictable knew, prison system ment and from a indifference on the and deliberate prison system study carried out within City. faulted Panati Panati and the Rowan police pre- of suicides in and from series failing realize that Simmons was lockups, to that a correlation existed be- cinct himself, likely failing occurring harm to monitor intoxication and suicides tween that, failing respond among Guy detainees. stated as a closely, more Simmons result, participate minutes, he was asked 1981 to hanging four within Simmons’s Academy training program in a Police failing to administer C.P.R. to him. group turnkeys.5 City, chiefly Rowan With training pre- the lack of suicide faulted Although it is unclear whether he direct- received officers. vention and detection policymak- ly imparted this information testimony, on Panati’s Rowan as- Based Depart- Police officials within “[ajbsolutely the officer had serted ment, Guy discussed testified that he training detecting not” received turnkeys profile that he had devel- potential suicides that the preventing type likely most oped of the of detainee provided turnkeys. should have for all Guy’s high at a risk of suicide. re- suggested because Simmons Rowan majority of suicid- search revealed that the profile school, psychological high fit the of a suicidal completed had al detainees training that had been derived for occupational detainee records than aver- better survey, City, inmate, although purposes age from the 1981 and tended be— According necessarily through training turnkeys such as Panati were not —white. training turnkeys Guy’s testimony many who received in suicide how 5. It is unclear from training pro- turnkeys participated prevention. in the 1981 Panati, however, among gram. clearly was not *11 procedures suicide have instituted to ensure that likely to commit Guy, detainees showing kind of emotional some intoxicated detainees received medical at- “be would observable,” that would be disturbance tention. shouting, and crying, agitation, such as stepbrother, Reginald Simmons’s Rose- that he in- Guy stated rattling cell bars. mond, testified that detective such detainees turnkeys that formed family who notified the su- Simmons’s constantly monitored means be should icide told him that his brother had been or television moni- one-on-one interaction acting in peculiarly while detention. Ac- and, necessary, physically restrained if tors Rosemond, cording to the detective stated prevent from harm- them with handcuffs police had taken Simmons’s shoe ing themselves. him for this reason. laces from Rosemond testimony that in Guy’s further indicated also that the officer him testified had told in participated in he year which people high are intoxicated are who training turnkeys, he com- course jail. risk to commit suicide while City Police officials within the municated to evidence, plaintiff’s At the close of design of Department his belief that City moved for a directed verdict on the lockup prevented prop- typical precinct grounds set forth its trial brief. In this Guy of detainees. stated er observation brief, (1) argued that: design encouraged he had premised could not establish a claim on turnkeys de- changes to enable to observe process violations of Simmons’s due or oth- closely made lock- tainees more be rights er she could constitutional because According Guy, specifically had ups. he lockups evidence of deliberate indiffer- staff members at adduce no advised that the City; stationed within cell areas. ence of Panati or the be on (2) plaintiff’s pendent state claims should Simmons, although Guy concluded special dismissed because no relation- black, displayed “all of those otherwise law, ship, as defined state existed be- high- signs put have him in the that would In a tween Simmons the defendants. persons to group est risk of incarcerated counsel, colloquy with the district brief Guy’s opinion that commit suicide.” It was grounds on court denied the motion suicide, Simmons, at the time of his was that sufficient evidence existed to submit suffering from an emotional disturbance jury to the the issues of Panati’s and the seriously impaired judgment. Accord- negli- either deliberate indifference and Guy, Simmons therefore constant gence. should have been under observa- expe- have been transferred
tion or should City then called as witnesses Officer The lockup in he have ditiously to a could on Panati and a second officer who was It placed in a cell with other inmates. been lockup precinct at the at the time opinion negli- Guy’s that Panati was he suicide. Panati testified that Simmons’s deliberately failing gent and indifferent signs of suicidal tendencies had seen no Guy take either measure. also attrib- behavior, which had not seemed Simmons’s indifference negligence uted and deliberate to him for an intoxicated detain- abnormal failing, many face of to the officer testified to the ee. The second lockups, years precinct of suicides in speed which the rescue team arrived the clear risk of steps take to diminish following discovery that Simmons had Guy opinion future suicides. was of the hung himself. City, among steps, other should The case then was submitted redesigned lockup permit areas to interrogatories.6 jury speci- special monitoring of detainees and should closer jury, interrogatories, completed were as follows: you of Title 42 U.S.Code the find that under section 1983 1. Indicate whether or not authority Pennsylvania deprive the decedent acted under color of the defendant officer rights. of his constitutional No X Panati Yes Officer A. *12 damages punitive no plaintiff liable to awarded find Panati that it did
fied against the officer. depriving 1983 for section under plaintiff law, state Simmons, color of under arguments, Advancing numerous found, rights. jury The his constitutional judgment notwithstanding for City moved had committed torts however, Panati and, alternative, for a the verdict Pennsylvania law. under against Simmons determined trial. The district court new the further “Yes” to jury responded The failing City, by to raise them City liable un- questions whether 50(a) motion for a di- support of its Rule violating Simmons’s 1983 for der section verdict, these had waived most of rected rights had committed constitutional (1) including: that in order for arguments, Pennsylvania under against Simmons torts against City under section a verdict that the actions jury also found law. stand, jury must first have 1983 to City legal were Panati and of both Panati; (2) against a verdict returned jury harm to Simmons. causes of Panati vio- only jury if the had found that $10,000 wrongful plaintiff awarded rights under lated constitutional Simmons’s $990,000 in survival damages and validly death could it have the color of state law responded legal “No” to the damages. Having City’s actions were a found that the death; (3) recklessly had or question whether Panati cause of Simmons’s Simmons, allege and establish generally had failed injured maliciously Pennsylvania you the defendant officer find that under the law of whether or not 2. Indicate against the decedent. committed torts No_ X Panati Yes Officer A. you find that under section 1983 of Title U.S.Code or not
3. Indicate whether custom, policy, regulation deprived Philadelphia had a defendant rights. decedent of his constitutional No_
Yes _X_ you Pennsylvania that under the law of the defendant whether or not find 4. Indicate against Philadelphia torts the decedent. committed No_ _X_ Yes Question Question you have answered “Yes”in 1 or the defendant officer [if] 5. Indicate for Question city you Question whether or not such answered "Yes” in 3 or or the if have legal any decedent. cause of harm to the defendants’ actions were (a) No_ A. Panati Yes X Officer (b) City Philadelphia No_ Yes X 5(a) "yes” Question you whether or officer if have answered 6. Indicate for the defendant oppressively maliciously, wantonly, done. were not such defendant’s actions No X Yes_ A. Panati Officer any Question (A) you more defendants in make answered “Yes” for one or If damages plaintiff. compensatory here for award of total 10,000 damages Wrongful $ death 990,000 damages $
Survival Question (B) you “Yes” in regard defendant officer if have answered With damages plaintiff. punitive award of for indicate - Officer A. Panati $ guished Philadelphia, Melendez v. negligence under of action for
any causes
(1981),
(4)
although
Pa.Super.
1061
that, although
purposes
policymak- determined
of
particular
a
of
ence on
requirement
liability
municipal
a
1983
Such
section
Monell’s
policymakers.14
or
er
City’s conten-
support the
policy
requirement
tend to
or custom
“was intend
would
Williams,
primary
tion,
on
distinguish
municipality
based
acts of the
ed to
a mu-
person namely,
actual
liability of an
employees,”
from acts of
unconstitutional
—
holding
to
predicate
a
nicipal employee
diffusely
actions cannot be
attributed
a
—is
under section 1983. It
municipality liable
a
municipality
entity.
as an abstract
475
Supreme
Court’s
necessary to look to
is
479,
(emphasis
106
at 1298
U.S. at
S.Ct.
Pembaur,
beginning with
trio of cases
Instead,
original).
“expressly
Monell
envi
Monell,
however,
as
to determine
municipal liability
sec
sioned” that
under
suggest, in
opinion and Canton
both that
predicated
would
on official
tion 1983
be
present
scienter-
requires a
fact
by legislators
or
policies established
specific
mu-
like evidence with
may
or edicts
“other officials ‘whose acts
”
an element of es-
nicipal policymakers as
fairly
represent
policy.’
said to
official
be
deliberately
policy,
indifferent
tablishing a
480,
(quoting
Mo
Id. at
106 S.Ct. at
custom,
to train.
or failure
694,
2037-38).
nell,
formulate a
‘
law,
usage”
at
106 S.Ct.
as well
“custom or
hav-
Id.
a matter of state law.
[as]
”
ing the force of law.’
Id. 109 S.Ct. at
at 1300.
(citation
Second,
omitted).
once the
2723
Praprotnik, 485 U.S.
City St. Louis
court has identified the relevant
district
(1988),
L.Ed.2d 107
108 S.Ct.
policymakers,
must determine
trio,
in the
confirmed
the second decision
have, through
whether these individuals
on Pembaur’s
conclusion
expanded
decisions,
deprivation
their
“caused the
municipal policy cannot be estab-
that a
rights
by policies
which affirma-
issue
attending
evidence of scienter
lished absent
tively
by acqui-
command that it occur or
decisionmaking
particular
officials.
in
longstanding practice
escence
a
or cus-
Court,
Supreme
once
Praprotnik,
In
operat-
tom which constitutes
‘standard
opinion,
noted that Mo-
again
plurality
a
ing procedure’
governmental
the local
is animated
the awareness
nell
(citation omitted).
Jett,
entity.”
In
Id.
only through
can act
“governmental bodies
therefore,
Supreme
Court held that
and reiterated Pemb-
persons”
natural
plaintiff alleges
even when a
that a munici-
directly subjecting a mu-
aur ’s criteria for
pal
practice,
opposed
custom
or
liability.15
nicipality to section 1983
Id.
municipal policy,
a constitutional
worked
Praprotnik
plurality
The
S.Ct. at 923.
deprivation,
plaintiff
identify
must both
firmly rejected
argument
that munici-
policymaking
officials with ultimate
author-
broadly
pal policymakers should be defined
ity
question
in the
and adduce scien-
area
other than those on
include officials
acqui-
this case
ter-like evidence—in
specifically
policy-
confers
whom state law
them.
escence—with
making authority in the area at issue.
Id.
plurality
emphasized
also
reading
my opinion,
In
Monell and
juries
it should
be left to
to decide
Canton
of the Pembaur
trio re
subject
which officials’ decisions should
inconsistency in
solves the ostensible
liability.
municipality to section 1983
Id.
jury’s section 1983 verdicts
this case and
court’s,
City’s,
reveals that the district
Independent
In Jett v. Dallas
School
plaintiff’s differing perspectives
on
District,
491 U.S.
109 S.Ct.
employee liability
prerequisite
is a
(1989),
L.Ed.2d
the final
in the
case
establishing municipality’s
section 1983
trio,
positions in
plurality
Pembaur and
liability, although ultimately incomplete,
Praprotnik finally acquired the status of a
complementary,
mutually
are
rather than
Jett,
majority opinion. In
which was decid-
exclusive. I
believe
district court
shortly
ed
judice
before
case sub
went
reasoning
are correct
trial, majority
Supreme
Court
plaintiff need not have established deliber
approved
foregoing teachings
of Pemb-
part
ate indifference
Panati.
Praprotnik
aur and
and held that there
Further,
I believe that the
is correct
preconditions
municipality’s
are two
to a
plaintiff,
First,
insofar as it contends that
in or
liability
ultimate
under section 1983.
prove
municipal policy
der to
either her
identify
the district court must
the officials
governmental
theory,
custom or her failure to train
must
poli-
bodies that have final
cymaking authority
govern-
for the local
have adduced evidence of scienter on the
assertedly
municipal
my opinion,
ment
for a
of a
actor.
liable
constitutional
however,
trio,
by “[rjeviewing
legal
violation
the relevant
under the Pembaur
and Jett
Third,
15. Praprotnik plurality succinctly
particular
whether a
official has "final
summa-
rized Pembaur’s criteria as follows:
policymaking authority”
question
is a
of state
First,
Fourth,
may
challenged
municipalities
...
be held liable
law.
action must have
only
§
under
municipality
for acts for which the
pursuant
policy adopted
been taken
to a
actually
responsible,
itself is
responsible
the official or officials
under state
is,
municipality
"that
acts which the
has offi-
city’s
making policy
law for
in that area of the
Second, only
cially sanctioned or ordered."
business.
municipal
poli-
those
officials who have “final
(citations
Id.
S.Ct. at
omitted and em-
cymaking authority" may by their actions sub-
phasis
original).
*20
ject
government
liability.
to § 1983
case,
scienter-type evidence
particular,
municipality’s
in
alleged unconsti-
a
adduced with
policy
must have been
tutional
or custom of inadequately
caring
the district
high-level official determined
for suicidal detainees and its deliber-
court,
law,
in
with
to have
accordance
local
ate indifference in failing to train officers
in
policymaking authority
final
the areas
dealt
who
with them. The issue in
Panati,
question.16 Because
a low-levelem-
plaintiffs
Williams
pro-
could
ployee,
primary
is not the
actor whose
ceed to trial on their section 1983 claim
liability
section 1983
must have been estab-
against
municipality
in the face
in-
predicate
subjecting
lished as a
substantial evidence of any violation of the
liability
policy
to section 1983
for a
or cus-
rights
decedent’s constitutional
train,
tom or a failure to
I find no inconsist- hands of
police
the defendant
officers or
ency in
jury’s
section 1983 verdicts in
plaintiffs
otherwise.
Id.
this case.17
plaintiff
Williams—in contrast to
in this
alleged
case—neither
nor adduced
evi-
analysis
prereq-
I believe that this
of the
dence to establish that
the municipality,
establishing municipal policy
uisites for
a
through
policies
or its deliberate indif-
comports
or custom and a failure to train
ference, directly violated their decedent’s
think,
jurisprudence.
with the relevant
I
rights.18
constitutional
With the
first,
Id.
case
foregoing analysis
that the
is consist-
posture,
we determined that
Williams,
ent with our conclusion in
based
municipality
summary judg-
was entitled to
Heller,
Angeles
Los
475 U.S.
ment, emphasizing the
Supreme
(1986)
Court’s
S.Ct.
Praprotnik,
theory that Simmons’s
liability under
unconstitution
her
establishing an
of
elements
a
of a munici-
as
result
rights
and
were violated
custom
deter
policy or
municipal
al
of deliberate indiffer-
pal policy or custom
be established ab
could
neither
mined that
medical needs of intoxi-
acqui
ence to the serious
decisionmaking
or
conscious
sent
detainees,
suicidal
potentially
and
prac
or
cated
longstanding custom
in a
escence
that
officials
must
shown
the
Id. plaintiff
have
policymaker.
part of a
tice on
court
to
by the district
cases,
determined
type
(“even in ‘custom’
1481
were
of
responsible
policymakers
aware
a kick
delivery of
to
on the
impossible
lockups
in
and
of suicides
the number
municipality]
the head
inculpate
[or
them,
preventing
for
but
alternatives
policymak
foot
find no fault with the
[or
pursue
deliberately
chose not
to
either
jury had found
er]”). Because the
acquiesced
long-
in a
or
these alternatives
Commissioner, whom we determined
Police
standing policy
custom of inaction in
or
was not
relevant policymaker,
to be the
establishing
predicate
a
to
regard.20 As
1983, we concluded
under
section
liable
theory
that
violat-
her concomitant
granted
properly had
that the district court
rights by means of a deliber-
ed Simmons’s
in that case.
j.n.o.v.
motion for
train, plaintiff
ately indifferent
failure to
Id.19
policy-
similarly have shown that such
must
Monell,
makers,
of
knowing
likewise
of the number
Can
sum,
In
based on
deliberately
City lockups,
in
either
ton,
Court’s Pembaur
suicides
Supreme
training
provide
not to
officers with
trio,
chose
as well as
our decisions
on
Andrews,
acquiesced in a
prevention
or
I conclude that
suicide
and in
Williams
provid-
custom of
longstanding practice or
subjected
plaintiff,
in order
to
discuss,
As I
training
no
this area.
liability under each of
City to section 1983
Court,
regard
Supreme
my analysis
of
I note in this
that
that
of the elements
19. I note
custom,
Seiter,-U.S.-,
establishing
policy
municipal
or
a
v.
111 S.Ct.
in Wilson
train,
that,
deliberately
(1991), recently
failure to
well as a
indifferent
held
115 L.Ed.2d
cases,
appears
comport
with our
decided
also
prisoner
a
for a
to establish
section
order
Supreme
prior to the
Court’s decisions
Can
of confinement violate
claim that conditions
Jett, concerning
requisites
stating
of
ton and
prohibition against
eighth
cruel
amendment’s
based on
a viable claim under section 1983
a
punishment,
prisoner
must
and unusual
Upper
jailhouse
Darby
v.
suicide.
In Colburn
possessed
culpable
prison
"a
show
officials
Cir.1988),
(3d
Township,
cert. de
Under the
Appellate
Rule of
Procedure
of Federal
has
have concluded that
I
21, passing
refer
plain
and Third Circuit Rule
preserved
its contention that
not suffice
to
issue in a brief will
sup
ence
evidence to
tiff adduced insufficient
on
bring that
issue before this court
against
to
claim
it.
port her section 1983
Colafella, 885
appeal.
Lunderstadt v.
See
at both trial and
of the
waiver
Cir.1989)(brief
(3d
mention of issue
plain
F.2d 66
appellate
argument
levels of
suffice,
28(a)(2)
Fed.R.App.P.
under
did not
“scien-
tiff failed to establish
essential
(4),
appeal);
on
present
case,
& to
issue
Jackson
additionally
of her
I
ter” element
University
Pittsburgh,
remaining
plaintiff’s
elements of
section
municipality
clear that a
has a constitution
*24
against
City clearly
1983 case
must be
duty
provide
quantum
al
them
some
with
weighed in highly
a
deferential manner. In
protection.
of care and
In
Up
Colburn v.
determining whether
the district court
663,
(3d
per Darby Township, 838 F.2d
668
denying
judg
erred in
motion for
Cir.1988),
denied,
1065,
cert.
489 U.S.
109
notwithstanding
ment
the section 1983 ver
1338,
(1989) (“Col-
S.Ct.
government policymakers determine
due
itself,
deprivation
of life
I believe
security,
discipline,
institutional
or other
governmental purpose,
that a
in order to be
reasons,
weighty
including
prohibitive-
fiscal
legitimate, may
relatively
have to be
more
ness, they simply
protect
weighty
necessary
can do no more to
would
in the context
than
be
liberty.
deprivation
these unfortunate detainees from themselves.
of a
in-
toward Simmons
deliberate indifference
quantum
minimum
contains
record
Plaintiff, rather, sought to es-
dividually.
con-
jury
could
which
from
evidence
showed deliber-
at trial
deliberate or
tablish
City policymakers’
clude
intoxi-
toward the class of
physical
ate indifference
to make
election not
acquiescent
pretrial
suicidal
de-
potentially
ex-
cated and
City lockups, for
alterations
feature
belonged and
Simmons
tainees
specific procedures
institute
ample, or to
indifference toward the
that this deliberate
suicides were
averting detainee
aimed
injury to Sim-
a constitutional
class caused
a violation
“moving force” behind
Monell,
individually.
mons
rights.
constitutional
Simmons’s
2038. With
1Q71 say (1) is it would City policymakers cation. This not to be were aware of constitutionally impermissible City, for the average number of occurring suicides of costs other factors relat- result year (2) each in City lockups, and knew ing legitimate countervailing govern- to a prevention the suicide measures testified to interest, relatively mental to tolerate some by plaintiffs experts. With the ease in this I yearly smaller number of suicides.27 sim- posture, question, therefore, is whether “ ply emphasize that an exclusive focus on ‘critically record is deficient of the ” probabilities of individual harm masks the quantum minimum of evidence’ from that, reality group across the entire of in- which the reasonably could have con- detainees, predictable toxicated number cluded that the City policymakers failure of of actual individuals will kill themselves any preventive take of those measures year each aas result of suicidal tendencies amounted to deliberate indifference to the have been attended to —and that serious medical needs of intoxicated and probabilities individual therefore are a mis- Kinnel, potentially suicidal detainees. leading totality measure of the of the con- F.2d Although at 961. the case is an ex- injury by particular stitutional suffered one, tremely close I do not think that group. record is so deficient of support evidence to jury’s see verdict I the district previously explained,
As court’s supra denying I decision necessary think that it is motion for j.n.o.v. assume that has established must reversed.28 discussed, caution, supra, 27. As I have at note 24 and the steps they deliberate could take it, accompanying subsequently text I mean this statement discover to be ineffective in re- that, However, dressing no more than if the evidence showed that constitutional violations. that, Judge implies had taken into account the serious Weis further notwithstand- knowledge, medical needs of suicidal detainees and initially-cautious poli- had these them, steps protect cymakers taken all reasonable light could avoid constitutional liabili- fiscal, constraints, security, ty wilfully failing and other to take further measures protect could not rights be held to have been deliber- the constitutional of the citi- ately Second, indifferent to those serious medical policy. needs. zens affected the infirm if infra, emphasize legal As I applicable do not intimate formulated as a rule to future cases, analysis appropriate Judge that cost-benefit reasoning, in the dissolving Weis’s thus indifference, spectre constitutional context. of deliberate would municipal policymakers create incentives for dissent, urges In his Weis because meager they take measures that know or should "clearly City, through the record shows that the preventing specific know to be ineffectual in officers, adopted directives to its rights. violations of constitutional policy limit or eliminate suicides that oc- City’s police I therefore conclude that the di- jails,” curred in its cannot be found to checks, concerning rectives fifteen-minute policy have had a custom or a tainted delib- detainees, double-celling of and the removal of erate indifference to the medical serious needs not, themselves, personal articles do in and of potentially of intoxicated and suicidal detainees. preclude liability constitutional for a *28 Dissent, Paraphrasing at 1092-93. the policy infra or custom tainted deliberate indiffer- Eighth opinion Rellergert Cape Circuit's in note, addition, ence. I that I do not read (8th County, Girardeau 924 F.2d Cir. Rellergert proposition they to stand for the that 1991), Judge city Weis asserts that "[a] cannot Rellergert, Eighth do. In Circuit held that a deliberately deliberately be both cautious and deputy defendant sheriff and were entitled to Dissent, Judge indifferent.” at 1096. qualified immunity, notwithstanding the section infra concludes, essence, implemen- Weis that the case, against jail 1983 verdict them in a suicide tation of some measures intended to reduce the because the considerable measures that these City lockups negates pos- risk of suicides in sibility prevent officials took to the suicides of detain- City policymakers that could be found to general particular ees in and of the decedent in anything negligent have been more than in ad- did not demonstrate deliberate indifference. Id. dressing the medical needs of intoxicated and Notably, imple- it was to the defendant officials’ believe, however, suicidal detainees. I that this policy mentation in the decedent’s of a case reasoning proves too much and that in some housing suicidal inmates in common area in may cases deliberate indifference indeed coexist they kept nearly could be under constant deliberate, insufficient, with but caution. general municipal observation—and not to a clearly policy Rellergert Two untenable corollaries attend referred court in as- —that First, Judge logic. Judge serting policy Weis’s under Weis's that could not have been ”[t]he reasoning, municipal policymakers, exercising deliberately both cautious about [the decedent’s] rights process of intoxicated testimony at the due statistical Heran’s
Sergeant
that,
years preceding
pretrial
in the
and suicidal
detainees were at least
trial revealed
suicide,
average number
implicated by the manner and conditions of
Simmons’s
pretrial detain-
among intoxicated
suicides
their detention.
3 from
lockups
approximately
ees
—
experts
testified that
Plaintiff’s
19,500 persons de-
average of
among an
variety
have taken a
of measures
could
intoxication—
public
year
each
tained
provide for the serious medical needs
extremely
was,
small.
relatively speaking,
detainees,
thereby
intoxicated and suicidal
revealed,
testimony also
how-
Heran’s trial
future
suicides.
These mea-
preventing
ever,
average
represented
number
that this
costly
physical
included
feature
sures
occurring regularly
had been
suicides
changes
lockups,
proof-
such as “suicide
years
five
and
period of at
least
over a
ing”
remodeling lockup
facilities
cells
measures,
that,
would be
preventive
absent
turnkey’s
locate the
work area within
roughly the
likely
continue to occur at
However,
they also included
the cell block.
Further,
future.29
same rate
steps,
install-
relatively inexpensive
such as
testimony
plaintiff’s experts, Rowan and
monitoring
audio and visual
devices and
closely monitoring in-
Guy, suggested that
promulgating
enforcing procedural
di-
detainees,
particularly
those
toxicated
specifically
preventing
aimed at
su-
rectives
depression,
showing signs
hysteria
providing,
example,
icides —directives
prevailing practice nationwide and
was the
that an intoxicated detainee should under
either
had at least considered
and that
no circumstances be housed alone
lockup
or insti-
making changes in
facilities
precinct
empty,
if
cell
is
the detain-
block
provide
moni-
tuting procedures to
for such
kept under
restraint
and ob-
ee should be
think that
toring.
I therefore do not
pre-
processing
servation in the
area of the
critically
of evidence
record is
deficient
transported
jury could have concluded
cinct station until
elsewhere.30
from which the
deliberately
Surveying
indifferent
(the
a considerable number of recent
risk as a suicide and
30.
suicides,
asserts,
involving jail
Judge
about it.” Id Both the central issue
defen-
Weis
cases
dissent,
qualified
"expert
dant officials’ entitlement to
immuni-
evidence of this na-
in his
ty) and the nature of the deliberate caution
support
ture does not
a claim of deliberate in-
distinguish
Rellergert
Dissent,
exercised in
that case
by municipality."
at
difference
infra
from this one.
Particularly
highly
of our
defer-
1094.
jury’s
of review of the
deliberate
ential standard
that,
Judge
29.
Weis concludes
because
verdict,
supra
discussed
indifference
explanation
record contains no
for the varia-
knowledge
part
City policy-
and the
yearly
tions in numbers of
suicides in
lock-
court, given
makers that I believe that this
ups,
statistics ... do not demonstrate that
"[t]he
waiver,
established,
obligated
to take as
policy
Directives was
set out in
agree
Judge
analysis.
with
Weis’s
More
I do not
training
ineffective or that additional
was re-
specifically,
opinions
I
on which
believe
Dissent,
Although
quired."
at 1094.
infra
Judge
support
conclusion
Weis relies do
his
agree
Weis that the record contains
case,
expert testimony in this
in tandem
linking
evidence
the suicides that the statis-
no
testimony
plain-
and other
with the statistical
the directives or
tics document
violations of
witnesses,
supply
the "minimum
tiffs
fails
jail personnel, I
unlawful conduct on the
jury
quantum
from which the
rea-
of evidence”
by no means draw the same conclusion. Rath-
City policy-
sonably could have concluded that
er,
some evidence that
I believe
absent
deliberately
seri-
makers were
indifferent
preventive
more strenuous
measures would not
potentially
needs of intoxicated and
ous medical
have diminished the numbers of suicides that
Kinnel,
suicidal detainees.
years
surveyed,
occurred in the
reason-
urging
foregoing expert testimony
existing
ably could have inferred that the
di-
*29
could,
best, support
that
at
the conclusion
sufficiently
rectives did not
address the serious
failing
policymakers
negligent
were
to take
potentially
medical needs of intoxicated and
sui-
suicides,
prevent
lockup
mind,
further measures to
my
cidal detainees. To
this conclusion is
Judge
quotes from our decision in
Weis
plaintiffs
the elements of
case
necessitated
Williams.
In Williams we stated that claims
take as established in
that the court must
municipality had violated the decedent's
City’s
namely,
City policy-
that the
of the
waiver—
failing
require
rights by
de-
year-
to
the removal of
of
makers were aware both of
ly
alternatives,
number
belts,
occurring
City lockups
to install visual surveillance
tainees'
suicides
and of the
area,
directives,
equipment
in the cell block
to allocate
in addition to the
for
preventing
of detainees with men-
them.
funds for the treatment
evidence,
Although
City po-
the record shows
no
example,
policy-
its
required
lice directives
officers to remove makers
physical
had
determined
fea-
and, in
changes
detainees’ belts and shoelaces
order
ture
in lockups were fiscally im-
attempts,
place
possible
forestall suicide
to
de-
or
necessary
that it was
to allocate
cells,
together
presented
tainees
financial resources differently.
evidence,
legitimate
no
from which a
coun- The City
presented
also
no evidence that
tervailing governmental
objective might
relatively inexpensive
preven-
suicide
inferred,
have been
to rebut either the effi-
tion measures discussed
actually
above
cacy
feasibility
any
of
or the
of the other
proven
would have
costly
to be too
prevention
suicide
plain-
measures to which
would not have
prevent-
been effective in
experts
tiffs
testified.
City presented
among
suicides
intoxicated detainees.31
problems,
sage
1095;
tal
and to
quoted
by Judge
health
train officers in the
Weis at
em-
infra
handling
phasized
jailors
such detainees at
municipal
most amounted to
that the
had followed
allegations
negligence.
requiring
personal
F.2d
n.
directives
at 467
14.
removal of
ef-
However,
might
fects
selves,
length,
injure
with
have discussed at
see
which detainees
them-
18, Williams,
supra
nowhere
summary
&
court
addressed the
1063-64
n.
a
issue
negated
whether the
judgment
primarily predicated
directives
deliberate
case
indif-
on the de-
ference
municipality.
on
police
indifference of the
liberate
officers who
dealt with the decedent and in which we con-
cluded,
my opinion,
only
procedural
pos
alia,
plaintiff
inter
that the
had failed to
requisite evidentiary
ture and the
assumptions,
any
show
causal nexus between
decedent’s
but also the
preven
nature of the
suicide
policy
municipal
suicide and a
or custom with
measures, distinguish
tion
this case from Col
detainees,
respect mentally
posed
prob-
ill
Upper Darby Township,
burn v.
Had
City
intoxi-
to the
ence to the serious medical needs of
measures available
preventive
might
was,
costly,
as Monell
the evidence
cated and suicidal detainees
quite
were
all
City
was
requires,
“moving
to establish
force”
a vio-
behind
insufficient
serious medi
deliberately indifferent
lation of
fourteenth amendment
Simmons’s
and suicidal detain
of intoxicated
undisputed
cal needs
It
rights.
is
Simmons
suggest that the tradi
is not to
ees. This
in
hung himself while intoxicated and alone
analysis of tort law is
tional cost-benefit
block, during an
Precinct cell
the Sixth
constitutional context.
in the
appropriate
inspec-
periodic
Panati’s
interval between
knowledge
However, assuming
on
suicide was therefore the
tions. Simmons’s
measures, I
of all available
City’s part
very type
preventive
suicide that
moni-
of
implement
failure to
think
measures,
toring
ranging from audio-visual
extremely
prevent costly measures to
instituting procedures
to directives
devices
would
yearly
of
suicides
small number
are not
that intoxicated detainees
to ensure
City policy
strong inference that
yield a
alone, might
prevented.
left
well have
“judg
makers had made a constitutional
City
concerning the allocation
ment call”
Sufficiency
With
3. The
Evidence
pro
safety
and to
resources to ensure
Respect to Plaintiff’s Failure to
rights
great
constitutional
tect the
Theory32
Train
words,
In other
of its citizens.
est number
jury
have determined that
preventive mea
that all available
evidence
I
reasonably
returned its section
costly might justify an infer
could have
sures were
City
legitimate
against
City
had a
counter
1983 verdict
based on
ence that
electing
interest for
vailing governmental
City
conclusion that the
violated Simmons’s
preven
implement additional suicide
rights by
policy
not to
a custom or
means of
measures,
might
thus
render the
tion
tainted
deliberate indifference to the
critically
of evidence from
record
deficient
detain
serious medical needs of intoxicated
reasonably could have con
jury
however,
which a
think,
ees. I also
that the record
City
deliberately indif
cluded that the
was
support
contains sufficient evidence
of in
ferent to the serious medical needs
City
against
section 1983 verdict
based
detainees.
potentially
toxicated and
suicidal
plaintiff’s corollary theory
City
that the
through
rights
violated
a delib
Simmons’s
That, however,
is not this case.
train officers
erately indifferent failure to
concerning relatively
light of the evidence
responsible
detainees in su
for intoxicated
City might
inexpensive measures that the
prevention.
detection and
icide
in
prevent
among
suicides
have taken to
detainees, as well as the absence
toxicated
extremely
Due to the
small number
legitimate
any
from which a
evidence
large
number of
suicides relative to
governmental
countervailing
interest
persons
year
each
intoxicated
detained
taking
preventive
no
measures could be
evidentiary ques-
City lockups, it is a close
inferred, I cannot conclude that the record
whether,
tion
consistent with
Can-
crucially lacking
evidence on
ton,
“the need for more
S.Ct.
jury
a determination
which the
could base
training”
respon-
or different
of officers
deliberately indifferent
was
for these detainees would have been
sible
failing
steps
to take
to meet the serious
City policymakers,
even as-
“obvious”
needs of intoxicated and suicidal
medical
suming,
the waiver
as must
detainees.
discussed,
they
principles I have
knew
Panati and Ser-
evi- of the suicides. Officer
I also think that there is sufficient
jury
geant
con-
Heran testified that
directives
support
dence in the record to
My responses
adduced sufficient evi-
Weis’s dissent in the
section
section, concerning
sufficiency
previous
support
dence to
verdict that the
deliberately
indif-
the evidence with
to a
failing
deliberately
train its
indifferent
to'
City,
policy
ferent
apply
or custom on the
officers.
large part
my conclusion in this
*31
regular
belts were
in occurrence.
testimony
officers to remove detainees’
required
addition,
plaintiff’s
tes- of
experts suggested
In
Dr. Rowan
that
shoelaces.
rela-
and
tively
training
a suicide-
minimal
participated
profile
of a
tified that he
turnkeys
typical
detainee,
suicidal
training program for
the known hours
prevention
however,
during
occur,
likely
introduced no
suicides were
City,
in 1981. The
and the need for monitoring by
to train all
officers or
that it had undertaken
evidence
inmates would
turnkeys
other
have
prevention.
It is clear
enabled
turnkeys in suicide
prevent
among
suicides
intoxicated de-
testimony,
statistical
more-
from Heran’s
moreover,
City,
tainees.33 The
introduced
over,
numbers of suicides contin-
that small
evidence,
testimony
no
such as
that this
regularly to occur
1980 and
ued
between
unworkable,
training
proved
would have
Further,
testimony
plaintiffs
1985.
ineffective,
costly,
or too
from which a
experts suggested
profiles
that statistical
countervailing
legitimate governmental
type
likely
of detainee
to commit
electing
provide
reason for
not to
the train-
widely
po-
suicide were
available
ing could have been inferred.
commonly
departments
lice
trained officers
responsible
recognize
for detainees to
sui-
With
to whether the record con-
preventive
and to take
cidal tendencies
the minimum quantum
tains
of evidence
1051-52, 1053. I
supra
measures.
See
jury
from which
reasonably
could
have
therefore do not think that the record is
inferred that the
failure to train offi-
utterly deficient of evidence from which
prevention
cers
suicide detection and
jurors could conclude that the
reasonable
“actually
injury,
Simmons’s
cause[d]”
to train officers in suicide detection
need
Canton,
109 S.Ct. at
I note that
of
Panati testified that the
prevention
apparent
should
been
only training
City policymakers.
might
preven-
he
have received in suicide
twenty years
tion
prior
occurred some
question
It also
a close
whether there
plaintiff’s
suicide. Both of
ex-
Simmons’s
that the failure to
was sufficient evidence
Simmons,
perts testified that
with the ex-
provide police
training
officers with
in su-
race,
ception
profiles compiled
fit the
was,
prevention
icide detection and
consist-
typical
testimony
suicidal detainee. This
Canton,
ent with
109 S.Ct. at
suggests
training
had Panati received
likely to
in the violation of con-
“so
result
prevention,
in suicide detection and
he like-
reasonably
rights”
jury
stitutional
ly
danger
have realized the
would
policymakers
could conclude that the
were
and,
posed
through
to himself
Simmons
deliberately indifferent to the serious medi-
monitoring
precautionary
or some other
needs of
and suicidal detain-
cal
intoxicated
measure,
su-
could have averted Simmons’s
however, that,
think,
ees.
absent evi-
icide.
legitimate countervailing gov-
dence
interest,
testimony
stepbrother,
ernmental
could reason-
of Simmons’s
Rosemond,
ably
Reginald
have concluded that the
failure
that he was told
training
family
of Sim-
provide
the relevant
to all offi-
the officer who notified
responsible
handling
detainees mons’s death that intoxicated detainees are
cers
likely
commit suicide
high
would
result in violations of intoxi-
risk candidates to
corroborates,
incarcerated
at least to
cated and suicidal detainees’ fourteenth while
Panati,
degree,
rights,
amendment
based on the record evi-
some
the inference
among
continuing
some
train-
dence that suicides
intoxicated de- with the benefit of
detection,
tainees,
numbers,
prevent-
although
yearly
ing
in suicide
could have
small
sent,
Judge
suggest
(quoting
appears
Burns v.
Weis
that the train-
infra
(5th Cir.1990)).
Galveston,
plaintiffs experts
measures testified to
view, however,
training
training
medically
prison-
my
in obvious
the basic
constituted
“to
screen
symptoms
tendencies or in the statis
ers to detect suicidal tendencies" —a task that
of suicidal
“
'require!
experienced
profile
detainee that
s
the skills of an
tical
of a suicidal
would
cry
type
professional
psychiatric training,
experts
discussed is a far
from
medical
training
ability beyond
average
Weis
required
sophisticated
medical
”
rightly rejects.
process
officers
the due
clause.’ Dis-
*32
it ad-
state claims for the reason
pendent
Based
killing himself.34
from
ed Simmons
support
of its
evidence,
in the district court
I cannot
vanced
this record
all of
on
wit,
plaintiff
that
critically
j.n.o.v.
defi-
is
motion
the record
that
conclude
—to
action under
allege
reason-
causes of
the
failed both
evidence on which
cient of
sufficient evidence
conclusion
law and to adduce
state
ably could have based
see
noted,
failure to
them. As I have
deliberately
support
indifferent
City’s
supra
court deter-
actual cause of
at
the district
its officers was
train
argu-
City had
mined that
waived
death.35
Simmons’s
j.n.o.v.
motion for
purposes
ment for
of its
foregoing
uphold
reasons
I
for the
would
support
it in
of its Rule
by failing to raise
denying the
decision
district
court’s
50(a)
for a directed verdict.
motion
judgment notwithstand-
City’s motion
argu-
only
court concluded that
district
against
1983 verdict
jury’s
section
sup-
City
preserved
ment
it.
post-trial
relief with
port of its motion for
plaintiff’s state claims was
TO
ENTITLED
III.
THE CITY
WAS
that,
pre-
the state law
argument
because
PLAIN-
TO
WITH RESPECT
J.N.O.V.
relationship
special
had not
requisites for a
CLAIMS?
TIFF’S PENDENT STATE
met,
Panati had no
and
been
Argument
its
Did the
Waive
A.
Pennsylvania
tort
law.
under
to Simmons
Allege and
Failed to
that Plaintiff
necessary
to determine
It
therefore
Pendent
State
Establish
appeal
its
has waived on
Claims?
failed
overarching contention that
Pennsylvania law and
to state claims under
City contends
that we
appeal,
On
support
to muster
sufficient
evidence
the district court’s decision
must
reverse
plaintiff’s
them.
denying
j.n.o.v.
motion for
on
its
jail
on-the-job
prevention,
concluding
custodians received
the record contains insuf-
34.
In
training
handling
theory
intoxicated detainees and
support plaintiffs
evidence to
ficient
of self-
instructed “to listen for threats
deliberate indifference in
were
demonstrated
signs
injury
adequately,
and to watch for
of emo-
failing
inflicted
to train its officers
addition,
instability.”
arresting
In
Id. at 1022.
that "neither the
officers
tional
Weis asserts
charged
monitoring
police
with
detain-
the detainee’s actions to be
officers
nor Panati found
ap-
apparently
detainee
they
ees
knew that
"[i]f
others
had in their
different than [those of]
Dissent,
emotionally upset,
peared
officers
[the
to be
custody previously.”
at
1094.
infra
believe, however,
to clam them
talk to them in an effort
should]
down[,]
that this assertion is under-
personally
more fre-
(1)
...
visit the cell
arresting
officers
evidence that the
mined
quently,”
contact the trained crisis interven-
and
crying
Simmons was
and
informed Panati that
during every shift.
Id. at
tion officer on call
custody,
upset
he was taken into
at the time that
II,
Colburn
we therefore concluded
1050;
(2)
1022. In
Reginald
supra
and
Rosemond’s
see
at
requisite
to establish the
that the evidence failed
testimony,
supra
see
that the officer
to train and
causal nexus between the failure
family
of Simmons's death
who informed
that, particularly
injury
constitutional
peculiarly
had acted
told him that Simmons
prevented, the
the number of suicides
and,
intoxicated,
in
training
because
while in detention
prison
had received in
custodians
high
risk to commit suicide.
suicide-preven-
implementing
municipality's
relatively
policies appeared to have been
tion
II,
supra,
discussed
at notes 22
In Colburn
II,
Colburn
It is clear under our seventh amendment concerns that we dis- cannot reverse the district that this court cussed in Mallick v. International Broth- denying decision Rule Workers, court’s erhood Electrical 50(b) (3d the basis of an j.n.o.v. Cir.1981), motion for in the context of a argument City failed to raise in party’s precede failure to a motion for *33 50(a) support predicate Rule j.n.o.v. of its motion timely with a motion for a directed for a directed See verdict. Abraham v. verdict. This court concluded in Mallick 167, Pekarski, (3d Cir.) 172-73 “[ujnless a court has been alerted to 50(b) (“[A] judgment Rule motion for not proof deficiencies in a motion for a withstanding may the verdict not be made directed verdict”—and I think that the mo- grounds that on were not asserted in a tion includes the reasons therefor —“a re- verdict.”), denied, motion for directed quest cert. judgment court enter a con- 467 U.S. 104 S.Ct. 82 L.Ed.2d trary to that of the jury is tantamount to (1984); Pepsi-Cola asking Lowenstein v. the court to re-examine the facts as cf. Pennsauken, Bottling Co. jury,” F.2d 9 found the a reexamination that (3d Cir.) (holding grant may that court mo abridge “would the Seventh Amendment.” j.n.o.v. only tion for on basis of motion for Id.
directed verdict renewed at close of evi
requirement
dence
emphasizing
and
Alleged
B. The
Errors in
Jury
the
In-
expense
avoids tactical
at
victories
of sub
structions
interests),
denied,
stantive
cert.
429 U.S.
complicate matters,
To
City
the
has now
(1976).
97 S.Ct.
to review
limiting
provide
instruction that the
any
itself did
basis for invoking
plain
error doctrine.
request
begin
can
to amount to the
error,
type
resulting
of “fundamental”
in a
3. The Instruction that Intoxication
injustice,”
“manifest
that calls for review
Can Lower a Prisoner’s Duty to
plain
under the
Bowley,
error doctrine.
Exercise
Care
Due
mining City duty the breached a to City argues objected that it suffi- Simmons.38 I therefore that conclude the ciently to preserve this instruction to the nor, City object neither has cause to under allegation of appeal.39 error on Based on 51, preserved objection Rule has record, however, my examination of the the jury district court’s concerning instructions proposed jury to which instruction counsel the directives. Nor do I think that the City the objected was abandoned district court’s in regard plaintiff’s instructions this counsel and not used the jury 37. The district court the City instructed that tions of counsel for the and the advice of withdrew, City’s police could consider the directives in po- the court an instruction that the plaintiffs connection with section 1983 claim. lice officers who dealt Simmons were with "un- claims, respect plaintiffs duty With the state court der a to follow a and that directive” “the jury instructed that it jury police] could consider wheth- consider that if [could] [the violated City directive, against er the had torts negli- committed Sim- that that be considered could directives,” “through policies first gent.” mons its or, second, theory respondeat under superi- jury or. The sepa- district court instructed City argument 39.The bases this on the state- rately duty on state tort law standards of and at colloquy ment of its counsel in the course of the point jury no did the court tell that noncom- jury proposed on that instructions doesn’t “[it] pliance with the directives amounted to a person couldn't make a re- mean decision duty Pennsylvania of a breach of care under garding particular his own life or death at a negligence law. point City in time.” The construes this state- objection approval ment as an court’s Indeed, use, transcript colloquy 38. of the be- and decision to instruction on Sim- care, concerning tween counsel duty language Pennsylva- and the bench from a mons’s proposed jury suggests plain- plaintiff instructions wills and nia estates statute that sought, objec- tiffs counsel but as proposed. a result of the result a “fundamental” error “would point no at which find other I can court.40 necessitating in- discussing proposed injustice,” in manifest review City, either Bowley, plain the court or in the course error doctrine. under structions instructions, in- objected to the jury F.2d at 652.41 by the court adopted district struction regarded could be intoxication Simmons’s Failing Error of In- Alleged due care. lowering duty to exercise his Jury on the Preconditions struct addition, note, City appears Arising Special from a Rela- Duty Supreme Pennsylvania have raised the tionship the first McMichael decision for Court’s argued support Whereas short, having neglected appeal. time on verdict motions for a directed and for distinctly objected matter to “stat[e] allege had failed to j.n.o.v. as re- grounds objection,” and the special prerequisites to a and establish the has, quired Fed.R.Civ.P. forth in Melendez v. relationship set allega- preserve any my opinion, failed to Philadelphia, Pa.Super. at district court’s instruc- tion of error argument, raises this A.2d at care. I also do
tions on Simmons’s solely objection to the appeal, as an court’s instruc- the district not believe jury instructions. duty of care constitute district court’s tions on Simmons’s Hinsdale, See, counsel, Village City suggests, pro- e.g., ed as the harm. 40. Plaintiffs Dezort 710-11, Ill.App.3d N.E.2d posed that would have 35 (1976) (with instruction municipality’s liability "incompetent” adopted in Title the definition of Statutes, Pennsylvania negligence ex Consolidated in suicide of intoxicated and 20 of the estates, detainee, decedents, tremely depressed and fiduciar- decedent’s volun which concerns incompetent negligence per tary states that an se ies. This definition intoxication was “not but *36 who, person person weighed by jury of infirmities simply is "a because to be the a circumstance illness, deficiency care"); age, mental mental of old retardation, the issue of due in its determination of drug inebriety Flint, addiction or ... Mich.App. 39 197 Thornton v. of capacity (1972) lacks sufficient to make or communi- (question plaintiff N.W.2d 485 concerning per- responsible decisions his contributorily negligent inflicting cate was in serious (Purdon § son." 20 Pa.Cons.Stat.Ann. injuries while in delirium tremens or on himself City argues, Supp.1990). the 1975 & As the negligently jailers whether defendant caused appears a of its counsel to constitute statement summary by failing protective steps injuries those to take objection and an to the use of this Williams, of decide); jury was for to Thomas v. jury comparison language A of in instructions. (1962) (police Ga.App. 124 S.E.2d statutory language foregoing lan- with the charged knowledge officers held that guage of the court's actual instruction concern- heavily prisoner incapable of intoxicated care, however, duty ing Simmons’s reveals safety exercising be due care for his own and to statutory language court did not use the that the duty protect pris measures to under to take counsel, City objected. Plaintiff’s to which incurring setting oner from fire to his cell and moreover, appears pro- to have withdrawn the source, injuries). According to one serious posed instruction. majority holdings represent these rule on Annotation, Liability Civil this issue. See that, I note at all events because the McMi- Injury Prison or Jail Authorities for Self-Inflicted defendant, City, Prisoner, in contrast to the had no chael or Death (1977 79 A.L.R.3d relationship with the custodial or other intoxi- (collecting Supp.1990) and & cases con might given plaintiff a cated rise to cluding generally "the courts have held that him, heightened duty to McMichael is distin- [voluntary] neg does not constitute intoxication Indeed, guishable the issue from this case. se, ligence per inquiry and that the relevant is may whether a detainee’s intoxication lower or state, prisoner, in is whether the his intoxicated duty appears of care to be one of obviate his exercising capable reasonable care for his impression Pennsylvania courts. first for the safety, and whether the authorities know own condition"). that, helpless or should know of his In a number of states have held Courts in jurisprudence, view of this the district court’s voluntary neces- whereas intoxication does not essentially predict that the duty instructions —which sarily relieve a detainee of the to exercise Pennsylvania Supreme jury Court would hold that a safety, due care for his own it is for the to jury may whether an intoxicated de consider determine whether the detainee's intoxication exercising care his incapable tainee was unable to exercise due rendered him and, such care so, may municipal jailers safety own and determine that if whether his knew or should failing incapacity negligent prevent in to a self- have known of his and thus should actors were injury steps protect reasonable. have taken to him from self-inflict- inflicted —seem Melendez, Superior negligence Pennsylvania were erroneous in three re- (1) spects: charging jury in three-pronged test for established Court City’s regarded conduct could special relationship, as the determining whether a proximate cause of Simmons’s if protection, exists death duty rise to a giving negligently conduct increased the group and the risk that or an individual between himself; (2) failing Simmons would harm in Pa.Super. at 466 A.2d at police. 320 that, charge jury Pennsylvania to under requires that a 1060. Melendez concerning special relationships, law special of a relation- ba- claiming the existence duty protect sic to Simmons police could have ship “must demonstrate if (1) only arisen Panati or other partic- officers were: aware of the individual’s status, (2) knowledge had or reason to know that unique Sim- ular situation or danger suicide; in particu- committing mons was knowledge potential for the suffered, (3) failing charge jury lar harm the individual which assumed, specif- order for the to have (3) voluntarily of that incurred duty prevent ic Simmons from commit- knowledge, protect the individual from suicide, ting Panati must have had actual precise harm which has occasioned.” knowledge particularly that Simmons was (emphasis A.2d at Id. at vulnerable to the risk of suicide. original). reject City’s first contention that court’s instructions to the district instructing the district court erred in
jury
City’s
and Panati’s
jury
negligence
could be
were as follows:
Simmons
regarded
causing
Simmons’s death if
regard
prisoners,
there are some
With
negligence
increased the risk that he
specific
give you.
rules that I can
...
First,
would harm himself.
this contention
prisoner
custody
Those who hold a
tangentially
but
related to the
protect pris-
must use
care to
reasonable
argument
failing
that the court erred in
oners from an unreasonable risk of
charge
prerequi-
on the Melendez
harm.
Therefore,
special relationship.
sites to a
suicide,
plain-
regard
And with
City’s general
remaining
unlike the
prove
weight
fair
must
tiff[ ]
contentions,
specific
clearly
two
are
preponderance
the evidence that
Melendez,
grounded
my
it is to
mind
*37
custody
in
prisoner
those who held the
whether this
concern-
doubtful
contention
should
of the
either knew or
have known
ing the court’s causation instructions has
unique
prisoner’s particular situation or
Second, I
preserved.
been
can find no ba-
status,
is,
particular
that
of the
vulnera-
in the
actual
sis for the contention
court’s
bility
plaintiff[]
to suicide. And that
respect
instructions on causation with
to
prove that those who held
must further
Indeed,
plaintiff’s
appears
it
state claims.
custody
prisoner
the
in
either knew or
likely
that
the
has mistaken the
potential
for
should have known
charge
plaintiff’s
court’s causation
as to
present
harm that was
because of this
claim for the court’s causation
federal
vulnerability.
charge
on state law.42
based
general objection
City’s remaining general
to the
to the
and
In addition to a
As
jury
specific objections
the
to the district court’s
court’s failure to instruct
on Me-
special
charge
jury
failure
the
on Melendez’s
prerequisites
lendez ’s
to a
relation-
to
relationship, it
prerequisites
special
to a
is
ship,
City specifically
the
contends that the
concerning
necessary to consider as a threshold matter
court’s instructions
the
ligence
City’s liability
plaintiff
only
under
causation instruction
and the
to
42. The district court’s
enough
jury
to be
risk of harm was
state law was as follows: “It is not
to the
on an increased
legal
negligence
plaintiffs
negligent!)]
cause,
be a
claim. The
that
must
to
federal
factor,
causing injury....
jury
in
the
that
could determine
a substantial
court instructed
legal
injury
City policy
[Negligence]
cause of
Simmons’s death if
must be a
that a
caused
you
responsible for
policy
of harm” to him.
someone in order for
to be
that
"increased the risk
injuries.”
relating
neg-
their
The court’s causation instruction
These concerns are
concerns.
amendment
preserved
City adequately
whether
may
party
by the fact that a
not abated
support
in
of its Rule
contending,
them
50(a)
earlier,
Rule
motion
support
in
aof
motions,
50(b)
50(a) and
verdict,
point
raised the
have
for a directed
prereq-
these
allege
establish
and
failed
alleges the
party
in
later
law which
a
uisites
a
deficient. Absent
jury instructions were
su-
prevent Simmons’s
measures
take
jury instructions
timely objection to
argu-
raising that
through
City,
icide.
law, the court
point of
again raises the
for a direct-
its motions
support
in
ment
point
either
very
may fail to cover
well
clearly
j.n.o.v.,
would
for
and
ed verdict
on the con-
or based
through inadvertence
appeal,
objection on
an
preserved
have
raised
party
earlier
who
sufficiency
clusion
Melendez,
to the
grounded
it.
has
to abandon
point
decided
and evidence. See
complaint
plaintiffs
50(b);
50(a)
also Abra-
&
see
Fed.R.Civ.P.
determining
In
whether
However, as I
ham,
at 172-73.
728 F.2d
general
specific
and two
preserved
has
Rule 51 and our
explained,
previously have
Melendez,
grounded
objections,
impose a dis-
that rule
under
jurisprudence
court’s instructions
district
objec-
preserving an
requirement
tinct
care to
duty to exercise due
Panati’s
re-
namely, the
jury
tion to
instructions —
Simmons,
neces
I therefore find it
protect
party object
jury
to a
a
quirement that
or
solely
any arguments
sary to look
to instruct
the court’s failure
instruction
in rela
advanced
objections
jury
given issue “before
jury on a
on this mat
the court’s instructions
tion to
verdict, stating dis-
consider its
retires to
question
my opinion, it is a close
ter.
In
objected to and the
tinctly the matter
objected to
City adequately
Fed.R.Civ.P.
objection.”
grounds of the
duty charge.43 How
the court's state-law
759;
McAdam,
at
51;
896 F.2d
see also
ever,
Bowley v.
I think
under
Stotler
at 739-40.
F.2d
Waldorf, 896
Co.,
at
it did so.
Bow
&
determined that
this Court
noted,
ley,
id.
supra at
see
preserving
requirements
Rule 51’s
the district court to
failure to alert
party’s
read
jury
must be
objection to
instruction
by a motion for a
proof
deficiencies
unnecessary
concerning
of Rule
by the
supported
reasons
verdict
directed
is suffi
provides that “it
exceptions, which
seventh amendment
raises serious
therefor
ruling
party,
the time
j.n.o.v.
cient that
requesting a
I think
concerns.
sought,
made or
order of
court
jury
instruction that
depends on
the action which
known to the court
makes
objected to or was never
either was
court to take or
party desires the
to func-
asks the court
requested
essence
the court
objection to the action of
party’s
finding new facts
tion as
Fed.R.Civ.P.
grounds
therefor.”
equally serious seventh
implicates
thus
*38
court
the district
my reading
tion to the instruction
adopted
of the record that
from
43.
It is clear
objecting
duty
to
issue. After
jury
prereq-
City sought
instruction on the
a
the
language in
known”
"knew or should have
the
plaintiff’s
duty
protect Simmons from his
to a
to
uisites
instruction,
City explicit-
proposed
the
directly have
would
em-
tendencies that
suicidal
language
no com-
ly agreed
and made
to this
three-pronged
spe-
test for a
ployed Melendez’s
rejected the third
when the
court
ment
district
relationship.
is clear to me that
also
cial
It
for the
the
test. Counsel
element of Melendez
objected,
City
points
at
at several
counsel for the
however,
objec-
City,
subsequently renewed his
informally,
court’s decision to em-
to the
least
adopt
to
to the court’s
tion
refusal
Melendez's
duty
set
standard than that
ploy a more liberal
instructions, stating "You
prerequisites in its
jury
instruct the
and thus to
forth in Melendez
know,
actually,
Judge,
know if we're
don't
that,
City liable for
to
the
the
in order
hold
proposed in-
going
with [the
to come to terms
prevent
measures to
take
failure to
reasonable
why
explained
it
then
The court
struction].”
suicide,
determine that those
must
Simmons’s
instructing
prerequisites in
not use these
would
custody
or should
him in
"knew
who held
there was
jury
whether
the
and asked counsel
arising
potential for harm
from
known" of the
City did not
"anything
for the
further." Counsel
vulnerability
particular
to suicide.
his
duty
and
objection
instruction
renew his
to
concerning
however,
question
a
record,
sugges-
responded
some
instead
contains
The
objec-
instruction.
City may
different
have withdrawn its
that the
tion
special relationship in
interpreted Rule 46 to
sites to a
the context
Bowley,
In
we
alleging
that,
litigant
fully
Philadelphia
to
of an action
if a
endeavors
mean
position,
Department
duty
his
in Police
had breached a
to
identify to the district court
court,
protect
neighborhood
on an issue
the residents of a
opposition to that of
instruction,
litigant
by recurring racial
jury
to a
troubled
violence. 320
pertaining
pre- Pa.Super.
I think Supreme duty to a detain Pennsylvania on a custodian’s structions ly predicted that individual way an when were no Pennsylvania hold that would ee law Court47 under for deter rule applicable custody, and, misleading in the absence confusing is or custodian individual’s mining whether by Pennsylva controlling decision aof prevail is the protection duty of breached Court, adequately fairly Supreme nia rule, sec as formulated ing common-law jury the issue whether submitted (Second) Restatement tion 314A of of duty of breached Panati and three-pronged test to Torts, opposed as reject I therefore protection to Simmons. in Me relationship set forth special for a is entitled ei contention that 314A of Restatement Section lendez. the basis of a new trial on j.n.o.v. ther or required law who is specifies that “[o]ne jury instruc in the district court’s flaws cir another under custody of ... to take tions. other of deprive as cumstances such protection” is for opportunities his normal Notwithstanding from its Po- protect City, the individual duty to C. Is the
under a
physical
Ordinance,
harm”
risk of
“unreasonable
Immune
lice Waiver
if he
care for
individual
provide
Respect
and to
Liability With
from
injured.
ill or
is
State Claims?
Plaintiffs
in-
district court's
with the
Consistent
appeal
City additionally
The
contends
fur-
duty, the Restatement
structions on
granted
court should have
district
that the
not liable
that a defendant is
provides
ther
plain-
j.n.o.v.
for
its motion
know
knows nor should
he neither
“where
immune
it is
tiff’s state claims because
ill-
or of
unreasonable
[an]
of
risk[]
[an]
liability
any
Pennsylvania law from
under
required
is
ness,”
a defendant
and that
negligently injuring Simmons.
for
has
“he knows or
only when
take action
Pennsylvania’s Political
City argues that
plaintiff is endan-
to know
reason
PSTCA),
(the
Tort Claims Act
Subdivision
f.
e &
ill.” Id. comments
gered[] or is
(Purdon
8541-64
42 Pa.Cons.Stat.Ann. §§
interpreted this com-
generally have
Courts
the waiver
Supp.1990),48
overrides
&
jail authorities
require
mon-law rule
Phila-
21-700 of the
liability in Section
of
prisoner,
that a
should know
who know or
Code,
that “the
provides
delphia
himself,
forestalled,
likely to harm
unless
immunity as
governmental
plead
shall not
to ensure
reasonable care
must exercise
commenced
any
civil
a defense
action
Annota-
does not occur. See
that the harm
injury
sustaining bodily
any person
1214, 1216-17
tion,
A.L.R.3d at
supra, 79
by negligence or unlawful
caused
death
in a
(collecting
decided
courts
cases
the lat-
any police
while
of
officer
conduct
that this
concluding
number
states
scope of his office
acting
rule).
ter is
within
general
is the
Co.,
Pa.
however,
jury
years.”);
v. Black
Brothers
the court did
instruct
Azzarello
(1978) (continuing
ap-
DeShaney’s
A.2d 1020
apply
standard in
that it should
402A,
(Second)
prove
§
Torts
Restatement
determining
whether Panati and
products,
liability
concerning
defective
strict
duty
state law.
to Simmons under
breached a
"unreasonably
discuss,
although holding
phrase
Instead,
court derived the
as
we
dangerous”
section
from this
Restatement
it instructed
on which
standard
instructing jury).
(1965).
(Second)
used in
not be
should
Torts
from the Restatement
Pennsyl-
codifies
Pennsylvania
first section
Act
Supreme Court
I note that
48.
sovereign im-
prior common-law rule
strong
historically
Restatement
vania’s
has been a
provided
Kamrin,
munity, stating: “Except
otherwise
See,
e.g.,
v.
526 Pa.
court.
Mitzelfelt
any
...,
agency
be liable
(1990) (holding
local
shall
no
that Restatement
A.2d
person
any injury
damages
to a
323(a)
(Second)
provides
on account
standard for
§
Torts
agen-
by any
the local
property
performance
caused
act
determining
negligent
person.”
Bashline,
employee
other
cy
thereof or
or an
injury);
Hamit
services caused
(1982). As we dis-
(“Sec-
256, 268,
(1978)
§ 8541
42
cuss,
Pa.Cons.Stat.Ann.
392 A.2d
Pa.
*40
eight
subsequently sets forth
infra,
323(a)
the Act
been
Restatement of
has
tion
of the
Torts
immunity.
general
of
many
rule
Pennsylvania
exceptions to
law of
of the
employment.”
City emphasizes
immunity
under the PSTCA as a defense to
governmental
police negligence
liability
does not fall within
cannot be waived as
procedural
a result of
eight statutory exceptions
the
to the
error.
sovereign
general rule of
immuni-
PSTCA’s
Given this conflict between fed
ty.
also contends that the Penn-
procedure
eral
holding
Skibo’s
that an
sylvania Supreme Court’s decision in In re
immunity
waived,
defense cannot be
it is
(Skibo),
Upset
Properties
Sale
522 Pa.
necessary to determine which
ap
controls
230,
(1989)
waiving
appeal
does not
that Skibo
determine
trict court
could have
immunity that
overridden
governmental
the PSTCA has
munici-
whether
appellate courts.
sovereign
the state
waiving
in
immuni-
pal
raised
been
ordinances
gov
rule that
emphasized, see
of Skibo’s
district court
application
ty.
As the
proce
360,
is not
ad-
immunity defense
the
court
F.Supp. at
Skibo
ernmental
728
however,
waivable,
quite likely to
counsel for a
is
issue whether
durally
dressed
of
claim unit had waived
municipal
and the outcome
tax
influence
character
immunity by rais-
governmental
and to
of
it is relevant
defense
appeal to which
an
ap-
for the first time on
prevailing.
defense
of
litigant’s chances
each
affect
230,
A.2d at
Pa. at
560
peal. See 522
agreement
in
reason,
panel is
For this
agency
“a governmental
held that
Skibo
Supreme Court’s
Pennsylvania
put
mercy
negligent
at the
of
cannot be
for
regarded as substantive
must
rule
of a substantive
waiver
counsel
agreed
in
applied
must be
purposes and
Erie
very exist-
designed
protect
its
right
of
consideration
appellate
permit
case
(empha-
at
1087
legislature
sylvania
legislature’s
enacted the PSTCA in
main concern was to
sovereign immunity
1978 to reinstate the
possible
avoid the
devastating effects
Borenstein,
Ayala
had abolished.
unpredictable
See
which an
number of law-
F.Supp.
(citing
858
Carroll v. Coun-
suits would have on municipal budgets.
York,
ty
Pa.
Judge Sloviter
judg-
has concurred
I.
ment for the reasons set
sepa-
forth
her
conceptual difficulty
applying
opinion.
rate
deliberate
indifference standard stems
denying
The district court’s order
principle
municipalities
from the
can
motions,
City’s post-trial
judgment
its
on
only
policies
ap-
be liable
or customs
verdict,
delay damages
and its award of
(who
proved by policymakers
are defined
$104,687.51
in the amount of
will
af-
law).
policies
state
The formulation of
firmed.
generally regarded
is
as an intentional act.
SLOVITER,
Judge, concurring
Chief
in Therefore, it is anomalous to think in terms
judgment.
conscious,
municipality having
of a
inten-
policy
being
depri-
tional
judgment
I concur in
“indifferent” to
join
in Part
I,
III.C,
Judge
Part
and Part
rights.
IV of
Beck- vations of constitutional
As the
join
Judge
opin-
light
phrasing
jury interrogatory
1. I do not
Part II.A of
Becker’s
of the
(as
my
ion because in
ultimately
view of the case
he
merely required
which
it to decide whether the
concludes)
custom,
verdict can be
policy,
regulation
"had a
or
upheld
City's liability
on the
basis of
inde-
deprived the decedent of his constitutional
Therefore,
pendent
culpability.
of Panati’s
nei-
rights,”
Op.
see Becker
at 1053-54 n.
I do not
jury's alleged
responses
ther the
inconsistent
conceptual
discuss whether there
ais
distinction
City's possible
nor the
with
waiver
municipal
between an unconstitutional
custom
my
them is relevant to
agree,
vote to affirm.
I do
policy,
Judge
opinion
or
discussed in
Becker’s
however,
Judge
with
Becker's conclusion
II.A.2,
train,
City's
Part
and the
failure to
dis-
in Part III.B.l that the
waived its claim that
they
cussed at Part II.A.3. Even if
constitute a
identify
responsible policy-
failed to
unitary
recovery, I believe the evi-
claim for
charge
training.
agree
holder in
I also
jury’s
support
dence is sufficient to
verdict
Judge
analysis
Becker’s
of the distinction be-
on that claim.
tween this case and Colburn II as set forth in
footnotes 31 and 35.
plaintiffs can
to those where
v. 1983 cases
Canton
noted
Supreme Court
of the constitutional
378, 390,
defendants knew
show
S.Ct.
Harris, 489 U.S.
excluding
cases
(1989),
those
may deprivation
1205, 103 L.Ed.2d
“[i]t
argue that defendants
plaintiffs
sense to assert where
common
contrary to
seem
my
it. Nor are
known of
actually
should have
will
have
municipality
that a
allayed by Judge Becker’s attach-
concerns
taking
steps to
reasonable
policy of
“like” to “scienter.”
ment of the suffix
neverthe-
The Court
employees.”
train its
guidance
how to determine
provided
less
opinion
Becker’s
Nowhere
custom.
policy
there is such
liability
acknowledgement
there
the duties
that in
may happen
“[I]t
(i.e.,
City's
policymak-
may be
based
employees
assigned
specific
officers
er’s)
take
refusal4 or failure to
reckless
training is
different
for more or
the need
of facts or circumstances which
account
likely
obvious,
inadequacy
so
so
known.
responsible individuals should have
violation
constitution-
to result in the
precedent
Nothing in the current
city
policymakers
rights, that
al
liability
suggests
Supreme Court
been delib-
reasonably be said
can
municipality may not be based on
against a
(em-
need.” Id.
erately indifferent
the relevant cir-
disregard
reckless
*45
added).
phasis
cumstances.
a munici-
recognizes that
Judge Becker
has been defined as con-
Recklessness
“acqui-
may
liable based on
pality
be
of,
disregard
or indif-
duct that “evince[s]
longstanding
in a
of the officials
escence”
to,
under circum-
consequences,
ference
at 1063.
Op.
Becker
practice or custom.
involving danger
safety
to life or
stances
Nonetheless,
identifiable
his focus on an
intended,”
others,
or
although no harm was
“scienter” —a term
Su-
policymaker’s
regard
pays
that “either
no
a state of mind
in
preme
City
never used
Canton
Court
injurious conse-
probably
possibly
to its
of
suggests
trio of
or the Pembaur
which,
foreseeing
though
such
quences, or
cases3 —
intentional course of
prove
need to
an
spite
of such
consequences, persists
Keeton, The Law
action.
Prosser &
1142-43. Failure of a
knowledge.” Id. at
of
Cf.
107,
(5th
1984)
(gen-
at 741-43
ed.
Torts
duty
guard
§
municipality to fulfill a
“intent” in
erally equating “scienter” with
against
harm when its offi-
a foreseeable
actions).
misrepresentation
tortious
knowledge of circumstances
cials have
likely
clearly
making
harm
is
reckless
purposes “scien-
Admittedly, for some
culpable
conduct.
in-
may encompass action other than
ter”
Township
Dictionary
Upper Darby
v.
Black’s Law
Colburn
tentional action.
663,
(3d
I),
(Colburn
F.2d
670
Cir.
including “the defen-
838
the term as
defines
1988),
yet
had not
noted that we
knowledge of the cause
we
previous
dant’s
between,
define,
of,
distinguish
nor
injury complained
or occasion to
led to the
indifference,”
as “deliberate
knowledge
a state of
such terms
previous
his
of
rather
indif-
disregard,” and “reckless
guard
his
“reckless
facts which it was
1983 civil
ference” in the context of section
omission to do which has
against, and his
repeated
We
that state-
rights litigation.
injury complained of.” Black’s
led to the
(5th
1979).
Borough
v.
West
ed.
ment Williams
Dictionary
1207
Law
of
458,
(3d
Chester,
F.2d
464 n. 10
Cir.
Nonetheless,
equa-
891
because of the common
1989),
action,
decided after
I
which was
with intentional
tion of “scienter”
of
Supreme
trio of
and the Pembaur
Becker’s use of Canton
am concerned
Although these observations
limiting section Court cases.5
be misread as
the term will
Dist.,
701,
distinguished
from what he denominates
Indep.
U.S.
4. As
v. Dallas
School
491
3.Jett
type
2702,
“particularly willful
of recklessness.”
(1989);
S.Ct.
reckless conduct. In Jett v.
Indep.
Dallas
held to have
deliberately
been
indifferent.
Dist.,
701,
School
737,
491 U.S.
109 S.Ct.
2702, 2723,
(1989),
1095
in
some-
extra surveillance in cases where suicide
decedent
a cell with
placed
attempts
else,
anticipated. Although
District Jail
could
at the Sixth
be
one
location,
likely
City
suicides,
suicide
history
had a
of detainee
or some other
the Court
occurred.
decided that
would not have
directives
policymakers
showed that
had taken
opined that
plaintiffs
experts
steps
prevent
such incidents. Even if
variety of mea-
City could have taken
had undertaken its
negli-
initiative
in-
potentially suicidal
provide
sures to
gently,
that fact did not establish deliber-
suggested
mea-
prisoners.
toxicated
indifference,
ate
nor did the failure to build
plexiglass
place
screens
sures included
suicide-proof
cell.
bars,
monitors,2
of some cell
audio or video
in Popham City
v.
turnkeys
Similarly,
of the
desk to an area
Tallade
relocation
of
block,
ga,
calling
police
1561,
(11th Cir.1990),
within the cell
908 F.2d
personnel
from street
to assist
con-
procedures
Court held that
the standard
prison-
officials,
by jail
stant observation when intoxicated
followed
“removal of shoe
laces, belts, socks,
put
not
in a cell with other
pocket
ers could
be
contents
persons.
demonstrate an effort
pris
to assure [the
safety and a lack of deliberate indif
oner’s]
and other
Opinions of this Court
Courts
case,
ference.”
In that
the intoxicated
expert evidence
Appeals
have held that
prisoner hung
himself
a corner of the
support
not
a claim of
of this nature does
cell not viewed
a closed circuit television
by municipality.
deliberate indifference
camera.
Chester,
Borough
v.
West
Williams
In
Pa.,
(3d Cir.1989),
458,
F.2d
467 & n. 14
Rellergert
Cape
County,
v.
Girardeau
of the Mo.,
allegations
794,
the Court concluded
(8th Cir.1991),
924 F.2d
was
Borough’s
require that detainees’
failure to
yet
jail
Rejecting
another
suicide case.
equipment
belts
removed or to install
contention that the evidence established de
surveillance of the cell block
for visual
indifference,
the Court remarked
liberate
area,
funds for han-
appropriate
failure to
“[ijndifference
apathy
or uncon
dling
prob-
detainees
mental health
prisoner
cern.” That the
there was able to
lems,
train
in han-
and failure to
officers
eyes
jailer
evade the cautious
of the
for a
dling
prob-
mental health
detainees with
time,
change
period
brief
“does not
most,
lems, amounted,
negligence
import
policy
value and
to the con
not
indifference.
deliberate
trary.” Although
cautionary
measures
prescribed failed and the actions of the
Upper
contrast,
Darby
v.
In
Colburn
jailers might
negligent, “no
have been
view
I”),
(“Colburn
Township
838 F.2d
support of the evidence can
conclusion
(3d Cir.1988), presented allegations that the
deliberately
policy
indiffer
of the detainee’s suicidal tend-
knew
Id.;
Stigers,
see also Bell v.
ent.”
attempts,
previous
encies and failed
but did
1340, 1343 (8th Cir.1991) (“The
F.2d
deliber
against
proper steps
protect
her
take
only
ate standard is met
if there were a
herself.
likelihood,
possi
mere
‘strong
rather than a
Appeals
have reached
Other Courts
bility,’
of harm would
that self-infliction
the same result as we did Williams.
In
result.”).
Cleveland,
Molton
short,
denied,
undisputed
evidence is that
cert.
(6th Cir.1988),
489 U.S.
positive
Philadelphia
did take
1097 contrary leg- Relying reasoning to state ordinance the Boren- act a valid case, municipal corporation is but stein divided Commonwealth islation. Court of, by, Pennsylvania created in City Philadelphia and subservient of subdivision of Middleton, 362, 89 Pa.Commw. 492 to the state. A.2d (1985), 763 sustained the ordinance. The Philadelphia city has been denominated a pointed 802(c) dissent out that section of legislature first class of the the Torts Act as originally Claims enacted granted powers by certain a Home Rule provided that “all other parts acts or of 53, Pa.Stat.Ann. tit. 13101- Charter. §§ repealed acts are any extent of in- despite provides 13157. Section 13133 consistency.” 492 A.2d at In conferred, city grant powers of “no event, the dissent felt that a local ordinance to, contrary powers shall exercise could not be sustained when it contradicted of, enlargement powers grant- limitation or state law. Assembly which ed acts of the General are— recognize that the decision of the Com- Pennsylvania
monwealth
of
Court
is enti-
great
nevertheless,
respect,
tled to
I am
(b)
every part
Applicable
of the Com-
by opinions
convinced
Supreme
of the
monwealth.
Pennsylvania
Court of
that it would decide
(c)
of the
Applicable to all
cities
Com-
question
immunity
of
in a manner con-
monwealth.”
trary to Borenstein and Middleton.
applicable
The Tort
Act
Claims
Supreme
upheld
The state
Court
the con-
throughout
the state and extends to all
stitutionality of the Tort
Claims Act Car-
scope
municipalities.
It has a broad
York,
363,
County
roll v.
496 Pa.
437
clearly
implements
policy.
statewide
(1981).
A.2d 394
There an inmate of a
Nevertheless,
Chapter
an ordinance at
21-
detention center committed suicide. The
Code,
Philadelphia
700 of the
enacted be-
conferring
Court commented that “the
effect,
Act came
fore the Tort Claims
into
upon
immunity
political
tort
subdivisions is
purports
to allow the
to waive
scope
Legislature’s
within the
au-
governmental
immunity for
defense of
Further,
thority.”
Id.
device that could beyond exceptions
agency liable legislature.”
granted 1389; see also Gardner v.
560 A.2d at SEPTA, Corp. Pa. Rail Consolidated MUTUAL INSURANCE NATIONWIDE (1990) (the 1016, 445, 1018 n. 4 573 A.2d COMPANY, Appellant, again repeated its admonition Court once immunity exceptions grant to the v. construed). narrowly were be Anne Marie BUDD-BALDWIN. Upset In re: cannot be dismissed Sale No. 91-1171. procedural holding. It’s admonition a mere Appeals, States Court of United governmental agency may not that a Third Circuit. immunity agreed deprived through strong counsel is a indication waiver 12(6) Under Third Circuit Rule Submitted not countenance a the Court would July 1991. by a council either. waiver Decided 1991. Oct. immunity municipalities Tort is not a purely local Philadel- matter of concern for
phia the cases discussed in Boren- as were Philadelphia’s precarious financial
stein. pleas for aid from the
condition and its legislature make it obvious that state
state therefore, asking interesting years it be after the decisions I assume is not 3.It Middleton, City finally applied in Borenstein to this case. repealed the waiver ordinance on October preamble repealer The to the stated that legislature permitted 4.In cases where the has intentional, however, waiver was not "[s]uch since the cause the municipalities, brought against suit to be Act, predated ordinance and be- $500,- damages capped amount of has been has not re-examined this issue 8553(b); Smith § 129, 000. See 42 Pa.Cons.Stat.Ann. passage legislatively since the Tort [the City Philadelphia, A.2d 306 512 Pa. further, Claims And continued ex- Act].” “[t]he dismissed, (1986), appeal U.S. waiving immunity, ordinance istence of a (1981). repealed S.Ct. 94 L.Ed.2d general governmental enacted at a time when city purports only prevent city ordinance immunity prevailed, anomaly is an pleading governmental immunity as a de- from judicial governmental immunity abolition of fense, says nothing with but Assembly's subsequent and the General creation damages might be recovered. amount of governmental immunity carefully craft- legislature Clearly, intended to limit exceptions.” ed exposure municipalities where it did in cases Although repealer applies that it states damages. city has not allow a suit for actions," pending "all civil did not ad- point appeal. raised that on this and, vise this Court of the Council's action