James T. Voutour v. Harold Vitale, James T. Voutour v. Harold Vitale

VOUTOUR, James T.

Plaintiff, Appellee, Bownes, Judge, Circuit filed concur- ring opinion. v. VITALE, al., Harold et

Defendants, Appellants. VOUTOUR,

James T. Plaintiff, Appellant, VITALE, al., Harold et Defendants, Appellees. 84-1159,

Nos. 84-1214. United States Court of Appeals,

First Circuit. Argued Aug. 1984. Decided March 1985. As May 8, Amended 1985. Rehearing May 8, Denied 1985. Rehearing En Banc Denied May poor noon condition; Voutour. The was in car bad, tires the brakes operate properly, headlight did was burned out. The car one neither reg- nor early istered insured. Sometime Mon-

'day morning, parking Voutour drove got there, lot Gibbs Ford. When he he police noticed a manned cruiser. The cruiser was subordinate, by a de- fendant Howard Wheeler. Vitale and looking Wheeler were had been for a vehicle that involved an automobile acci- night. dent earlier that There are two different versions of what happened Ford at the lot. Wheeler’s ver- is that sion and started suddenly accelerated, he noticed the Voutour vehicle foot towards on when it around, turned him, passed time on an proceeded wrong way the for a ramp exit off Route and then Neumeier, Boston, Mass., L. Richard away. drove As the car started to acceler- Meehan, with whom F. James Cheri L. ate, “stop” Wheeler shouted and noted its Parker, Coulter, White, Daley Crow & plate license number as by it went him. Boston, Mass., were brief James T. that, Voutour testified because the con- Voutour. car, dition of his he any prob- did not want Garber, Boston, Mass., police, Alan lems with with whom so he when saw the Martin, Philip around, A. Mason and Mason & Bos- cruiser he turned parking left the ton, Mass., lot, wrong were on brief for Vitale. went way Harold for a short dis- tance on ramp, proceeded the exit and then Boston, Mahony, Mass., Gael whom way. on his He was not aware that the Greco, S. Michael Hill & for Robert G. Dreher and police had seen car and heard no com- Barlow, Boston, Mass., brief stop. mand to of Saugus Town and Fred Forni. Andover, Mass., Richard M. Magnan, drop Voutour’s intention was to MacDo- George Gregson, Saugus, with whom nald off near his home. the fore In order to avoid Mass., was on police, brief for Howard Wheeler. he took an indirect route. Be- got he drop-off corner, to MacDonald’s CAMPBELL, Before Judge, stopped Voutour temporarily car so BOWNES, Judge, tape Circuit and PEREZG MacDonald’s deck could be detached IMENEZ,* Judge. pulled District from the dash. He to the side over road, kept engine running and put gear PER CURIAM. park posi- shift lever in the later, tion. A short time Vitale and Wheel- appeal judgment This is from the entered er, looking who were for the Voutour ve- rights a section 1983 civil action and hicle, passed parked car, up backed pendent state arising tort claim out stopped the cruiser length about a car’s shooting plaintiff James T. Voutour behind the Voutour vehicle. After deter- officer, defendant Harold Vi- mining that the car was the same one that tale. We capsulated start with a account they lot, had seen Gibbs Ford it was leading the circumstances to the shoot- question decided that Wheeler would ing. occupants. The cruiser did not have its THE FACTS on, flashing used. wearing lights blue nor was the siren companions, Voutour and two Dennis left Wheeler the cruiser without Dionne, MacDonald and spent Lawrence dispute hat. There is a 13, night Sunday, February to gun as whether Wheeler had both early Monday and in morning driving around flashlight approached in his hands as he just acquired an automobile after- just flashlight. the car or When Wheeler * Rico, sitting designa- Of the District of Puerto tion. side of passenger’s trial, the door on put to the close of the the court got At ear, to accelerate. started special questions jury. Ques- Voutour three to who slightly, grazing Wheeler “yes” skidded # which to be answered car grabbed hang tion was and continued “no,” handle the door was whether defendant Vitale had car moved forwards. it as the plaintiff onto under circumstances in which shot deadly so the use of was unreason- force versions of what there are two Again, violate plaintiff’s able as to constitutional says as soon next. Voutour happened Question # was an- rights. to be policeman, he awas he realized Wheeler way, in a was de- swered similar door, down, put opened the slow started his left justified fendant Vitale had under been starting put foot out and in using deadly law force state testi- shot. Vitale park when he was car #3, plaintiff. Question which had three cruiser, saw the got he out fied parts, damages concerned the amount up with Wheeler be- start vehicle compensate plaintiff for his be awarded yelled for the road. He ing dragged down of his injuries, for violation constitu- stop, it did slow down. but the car punitive rights, and for other dam- tional in order the to save then decided He life of ages. by stop had to the car partner, his he drew his revolver shooting deliberations, the He During jury driver. its the sent is shoulder. There judge following at the driver’s and fired the the district note: in the hit Voutour dispute the shot no Honor: Your permanent quadri- rendering him a neck plegic. 1 question If the answer to # is—no + to # 2 question yes— the answer is— page any turn in may to two fill + —we PROCEDURAL HISTORY amount. dollar Vitale Voutour sued both and Wheeler notify district not counsel The court did § under 42 1983 and also filed a U.S.C. inquiry, of this but instead sent the follow- battery against pendent assault and claim response: ing written Vitale under Massachusetts brought He law. Jury: Members of the against action the section 1983 question only must if You answer 3 Town Chief Police at the time Question yes 1 the answer to is and/or Forni, shooting, against Fred and the Town Question to 2 is no. the answer trial, Saugus,1 year before the Over Thereafter, jury another to sent note

the district court allowed motions for sum- judge which read: Wheeler, Forni, mary judgment by filed' Honor: Your against and the Town on all claims them. in ef- which, may question, jury funny The returned a verdict This be a But is fect, way any question found Vitale not liable on the section # 2 can there be word- count, on the but liable state assault ed different. We feel that officer Vitale count; battery right protect part- and to to awarded Voutour had a shoot (sic) damages against ner, in the Jimmy Vitale amount but Vouture did not $1,100,000. endangering and he an Both Voutour know life, was officer’s appealed. so he was some-what not .also wrong. JURY VERDICT VITALE Again, notifying without counsel writing: judge responded in liable Vitale not jury The found Officer Jury: Members liable but to under Question any I other battery under the law cannot word and for assault Massachusetts. only plaintiff way. you defend- It asks to answer the Both and legally con- question cerning which is relevant verdict overturned to have this ant seek questions sub- Mr. claim under state Voutour’s ground that written judge question That concerns Mr. Vitale’s to the district law. jury mitted and, whether he jury, particularly, to the and gone conduct the case had after Voutour, thereto, shooting Mr. “justified” was responses written judge’s explained I had that term. until after the verdict. as to counsel disclosed litigation of the battery 1. Voutour also a state and by any filed assault and have not been raised parties against negligence appeal. Accordingly claim Wheeler state we do not address them. claims defendants. all These claims during seem to have been abandoned the course jury judge prejudiced by The then sent the a written claims that he was the dis- asking: jury. note trict court’s secret instructions to the Both parties seek a new trial to all Your Honor: counts.2 you again. I hate bothering But could you please write me a definition Justi- guided We are here briefly fication also write me holding + in Fillippon Court’s v. Albion Law to # State relative Co., Slate 250 U.S. Vein S.Ct. you. 63 L.Ed. 853 Thank that “written instruc- ought tions not to be jury sent point, judge At this contacted counsel opportuni- without notice to counsel and an ty for the first time. told She them she object.” Id. at 39 S.Ct. at 436. had received the latter note and read it to them. had been pointed As Court out: She also informed them that there It regard is not correct ... questions earlier the jury from opportunity of excepting afterwards she had not disclosed to counsel be- and to giv- instruction the manner of suggestive cause some these were “too ing it as equivalent opportunity to an doing.” the jury judge of what present during proceedings. To show the did not earlier notes to counsel so hold be to primary would overlook the promised but that she would do so after the an exception, essential function of jury had rendered verdict its she which is to direct the mind of the trial objections allow at that time. .would judge point supposed which it is brought judge was then law, that he erred so that he supplementary issued state law claim. instructions on the change reconsider it and his ruling if error, injustice convinced of and that and Thereafter, jury split the returned a ver- mistrials to due inadvertent errors may dict, finding for on the defendant Vitale the be thus obviated. claim, plaintiff 1983 but for the 82, at Id. 39 at S.Ct. 436. The Court also battery Voutour on the state assault and held that secret instructions which incor- court, promised, it had claim. as later rectly state the are “presumptively law in- questions all of from it revealed received the earlier had jurious.” Other Id. Court deci- responses. jury and its sions have made clear that even when the secret communication does not misstate the judgment filed a Vitale motion n.o.v. or trial, claiming preju- new that he had been law, a may new trial be if warranted it has diced court’s instruc- district secret by subtly affected the influencing outcome tions. The district court denied the motion. jury. See United v. States United Co., 422, argument Gypsum 460-61, appeal renews his States 98 S.Ct. 438 U.S. On 2864, 2885-86, claiming court’s failure to that the district 57 L.Ed.2d 854 (1978); States, jury’s Rogers v. 422 counsel of the content of the United notify U.S. 35, 38-40, 2091, 2094-2095, and de- requests prejudicial 95 S.Ct. earlier 45 prevent (1975). 1 opportunity Vogel L.Ed.2d him of the to See also v. prived Ameri- ver- compromise Warranty Corp., as a can Home he characterizes Service 695 what 877, (5th Cir.1983); by plaintiff also F.2d 881 joined who dict. He is United States Originally requested preme only partial Voutour Court has construed Rule 59. But I new trial with prefer counts, to the section would 1983 count a new trial on both However, on which he opposed was unsuccessful. happened at to affirmance as to what argument, oral response counsel conceded in to district court. questions put Well, to you him that new JUDGE fight- trial would be BOWNES: what are proper everything. as to exchange ing Everybody was the about? wants a new trial. following: emphasize COUNSEL: Both ... sides that the giving district court made a Why mistake in JUDGE secret BOWNES: shouldn’t there be a jury consulting instructions to the everything? on without trial Well, Honor, with counsel. frankly, quite COUNSEL: Your Now, JUDGE appear BOWNES: ... persuaded it would probably been I’ve rule, that the better you agree ought that and Vitale there although argued that we for a different result here, be a new trial. is that there be a trial on should new agree COUNSEL: We everything. suggest that. way We do rational- only JUDGE BOWNES: So issue having as far as only ize count, a new trial federal on the you are concerned is reading reply summa- but on filed brief ry judgment Vitale, was correct as to Wheeler very we we realize that have much an that, the Town. uphill given way battle Su-

817 Burns, 1056, nor (7th at trial v. 683 F.2d 1058-59 verdict is Cir. relevant. 1982), denied, 1173,103 Summary judgment granted U.S. only cert. 459 S.Ct. should 821, (1983); pleadings, if “the depositions, 74 L.Ed.2d 1018 Krische v. answers to Smith, 177, (2d Cir.1981); interrogatories, gether file, 662 F.2d 179 admissions on to- affidavits, Youngstown if Petrycki any, & Northern Rail show 1363, Co., (6th genuine that there no road F.2d 1366-67 is issue 531 Cir. as to 1976). material fact and that moving party is judgment entitled to a as a matter of law.” In Flaherty, United States v. 668 F.2d although 56(c). Fed.R.Civ.P. (1st Cir.1981), that, held we subject rule, harmless error secret Our standard of review is well estab- the judge communications between and the lished: jury presumption create a of prejudice and In determining whether summary judg that party heavy the other has “a burden appropriate, ment is we must “look at ... prejudice show no resulted.” the record in the light ... most favorable Id. at 602. party opposing motion,” ... Poller v. Sys Columbia Broadcasting judge by Here the notes sent tem, Inc., 464, 473, 486, 368 U.S. 82 S.Ct. jury suggest thought the neither Vitale fault 491, 7 L.Ed.2d 458 indulging in all wholly nor party. inferences favorable to this ed 655, Unit jurors quite didn’t know and that Inc., Diebold, 654, States v. 369 U.S. in their In to articulate this verdict. how the 993, 994, 82 S.Ct. 8 L.Ed.2d 176 circumstances, in had counsel been (1962) curiam); (per Santoni v. Federal oppor notes and received an formed of the tunity Deposit 174, Insurance Corp., 677 F.2d comment, at least conceivable is (1st Cir.1982); Sargent, Hahn v. its in the court would framed (1st F.2d Cir.1975), denied, cert. differently structions a different 425 U.S. 96 S.Ct. 47 L.Ed.2d sure, To outcome could have resulted. (1976). grant Reversal of of sum misstate the court’s answers contained no ment of mary judgment required is when issues law; opposing had the of fact which were adequately be raised party might hes prejudice not conceded fore the district court need to be resolved notwithstanding itate the court’s to reverse legal before the issues in the case Given, however, error. both Voutour’s and be decided. First Ar National Bank of the incident was Vitale’s insistence that Co., 253, izona v. Cities Service 391 U.S. the each of them for a prejudicial, desire of 288-90, 1575, 1592-93, 88. S.Ct. 20 claims, that new trial these and the fact (1968); L.Ed.2d 569 Over The Driv Road respect other a trial must be had with to ers, Inc., Co., Transport v. Insurance claims, a related trial with we vacate and order new 816, (1st Cir.1980). 637 F.2d 818 judg much of to so the Emery Valley v. Merrimack Prod- ment as dismissed Voutour’s Wood both ucts, Inc., (1st 985, Cir.1983). 701 F.2d against and to 986 1983 count Vitale awarded $1,100,000 against Voutour sum of Vi- the against rigorous It is this that standard battery tale on the state assault and law proceed we to examine the court’s dismis- count. of against Wheeler, sal the claims' the Chief, and the Town.

SUMMARYJUDGMENT Wheeler permit district did not Officer The court Wheeler, against Officer Voutour’s .claims We grant consider first of sum Forni, and the of Chief of Police Town mary judgment in favor of Officer Wheeler Instead, Saugus summary go to to trial. it entered on Voutour’s section 1983 claim in favor of Officer judgments him. sought Voutour to hold part Vitale’s Wheeler, Forni, of Police and the ner, Wheeler, liable under section 1983 on year a prior Town of more than to theory that approach Wheeler’s to challenges trial. now plaintiff without sufficiently identifying summary granting judgment court’s of himself as a foreseeably officer was is to an these claims. Our review confined linked to Vitale’s later conduct in shooting examination materials before Vitale’s, Voutour. While it was not Wheel rulings made. court at time the er’s, conduct that allegedly deprived Vout subsequently Neither the evidence offered of “rights, our privileges, or immunities 818 laws,” in by gross negligence applies, implica- the Constitution its secured or 1983,3 case, Wheel- of section this shrouded violation tions for are

purported responsibility for the presently envelop this area of is said share mists that er his initi- But, acting because of as by lights act of violence such are ultimate law.4 available, of events which caused actor of a chain do not believe that an as ation In of Wheeler. rights in defense primary to shoot from the civil viola- remote theory, the district court this is be held liable under rejecting tion as Wheeler might “while Wheeler’s actions that section 1983. found having proximately as caused viewed raised a good immunity Wheeler faith injury, as a matter of law plaintiff’s 1983, defense under section and we have support the conclusion do not affidavits recognized applicability of such a de- so careless and acts were Wheeler’s that nature. See Connors in cases of this fense the utter indifference as show reckless v. McNulty, 18, (1st Cir.1983); 697 F.2d 21 upon a resulting consequences Faherty, DeVasto v. 859, (1st 658 F.2d 865 predicat- can be finding gross negligence Ray, See also Pierson v. 1981). Cir. 386 ed.” 547, 1213, U.S. 87 S.Ct. 18 L.Ed.2d 288 In Harlow v. Fitzgerald, (1967). 457 U.S. challenges plaintiff appeal, On 800, 2727, (1982), 102 S.Ct. L.Ed.2d 396 73 as gross negligence standard use of Supreme Court set out standard to negli simple He claims Wheeler. holding “government applied, offi- appro is the gross negligence, gence, performing discretionary cials functions claim a section 1983 standard for priate liability for generally are shielded from civ- process due liberty without deprivation of il damages insofar their conduct does amend the fourteenth in violation of of law clearly statutory not violate established or simple ment. determination Taylor: Don’t Case Parratt v. Make a Federal Out recognized use of This circuit has 3. (same); It, (1983) B.U.L.Rev. com 63 1187 or violence force excessive unreasonable Note, pare Defining the Parameters Sec person resulting personnel enforcement law Taylor, v. B.C.L.Rev. tion 1983: Parratt 23 1218 liberty injury deprives person of without al view). (1982) (taking opposite See also R.A. process in violation the fourteenth due of law Smolla, Displacement Due Federal Pro Warwick, City Landrigan 628 v. amendment. by State Tort Remedies: Parratt v cess Claims 736, Cir.1980). (1st Shil See also F.2d 741-42 Taylor Logan Company, v. Brush 263, . Zimmerman Holmes, (5th lingford Cir. F.2d 265 v. 634 (1982). 831 Some courts have 1028, Ill.L.F. Glick, (2d 1981); 481 F.2d 1032 Johnson v. U. begun so, see, Bordelon, e.g., do Thibodeaux v. 462, Cir.), denied, U.S. 94 S.Ct. cert. Doe, (5th Cir.1984), Augustine v. 740 F.2d 329 (1973). L.Ed.2d cf. (5th Cir.1984) (holding that Parratt 740 F.2d 322 violations), procedural process is limited to due Taylor, involving In Parratt U.S. present v. 101 S.Ct. such as even in cases use attempted 68 L.Ed.2d 420 Court arrest. of excessive force an See taking Atlanta, (11th negligent prisoner's held City F.2d 894 Gilmere property (1984). Cir.), as a of a random unautho granted, result 737 F.2d 912 reh. employee acting argue act rized state under color relied Plaintiff has on Parratt deprivation property recovery of law amounted to a of negligence provides a basis of under aspect apply within context of fourteenth amend But we cannot that section 1983. 536-37, at looking ment. Id. 101 S.Ct. at 1913-14. of also into Parratt without Parratt's however, hold, i.e., teaching, asking Court went such a primary on to whether exist- deprivation process adequate negligence remedy is due law not without of of an state ence (and 1983) process any hence under not actionable section sufficient to vitiate section affords provides post-deprivation when the state remedy a tort here. A case can be made such a 1983 claim respondent result, bearing under which the can obtain in mind that Wheeler himself 541, Voutour, compensation being loss. Id. at S.Ct. against for his 101 no violence committed holding subsequently shooting alleged has been solely by negli- 1916. This linked to deprivation property. gence. extended intentional of be reserved for If section 1983 is to — U.S. -, Palmer, rights commonly See Hudson v. 104 S.Ct. under- of civil as violations 3194, (1984). stood, might 82 L.Ed.2d 393 hold that be reasonable to al- it force, proven, though if use of excessive yet approach Vitale’s It is this will be unclear whether 1983, unwitting negli- applied liberty violated section Wheeler’s deprivations or of life under Note, gence did not. the fourteenth See Due Pro- amendment. however, Since, good a Wheeler raised faith Application cess Parratt Ran- Doctrine to of deciding immunity defense and we are issue Deprivations dom and Unauthorized of Life ground, attempt resolve (1984) we do not (arguing Liberty, 52 L.Rev. 887 Fordham partial applicability Note, of Parratt here. or total applied); be so doctrine should

819 rights constitutional of which a reasonable lection, assignment police of 818, person would have known.” 102 Id. at prevent officers to said from officers mi- at 2738. S.Ct. Under this standard we susing firearms and committing from un- believe the district court was in correct of “if any lawful acts violence” and selec- entering summary judgment for Wheeler. tion, assignment and training was done it in grossly was undertaken negligent a reckless Judging light in the facts most favor- manner,” which, all or of plaintiff, able to trict court shooting the record dis- before the alleged, proximately was caused the shoot- night that on showed ing of Voutour. We this construe some- stealthily approached Wheeler had ambiguous language allege what a fail- prior warning, the Voutour without vehicle ure to train the prop- Town’s officers wearing not drawn his uniform hat a and with erly in use of firearms and also that it gun facts, in hand. These while police department was a custom of the arguably capable sustaining of a find- force. use excessive ing could negligence gross of even negligence, or not, think, support the conclusion against theAs action is Chief based particular that the (i.e., constitutional violation 1983, solely on section inquiry our initial is shooting by of Wheeler’s “(1) complained conduct of partner violation of civil Voutour’s by person acting was committed under rights) was a result a reasonable law; (2) color of state whether this position person Wheeler’s “would have deprived person rights, conduct privi- known.” leges, or immunities by secured Consti- tution or laws the United States.” Par- sure, To person be reasonable 535, 527, Taylor, ratt v. 451 U.S. 101 S.Ct. might arguably Wheeler’s shoes sur- 1908, 1913, (1981). 68 L.Ed.2d 420 There mised that some sort of chaotic situation would arise from the arrestee’s failure to can be no doubt that the first of these met; requirements was the conduct being approached realize he by police. question by was committed a chief of But this is reasonable man in from saying different that a acting in capacity. his official The second position Wheeler’s requirement contains two distinct elements. approaching would have known he was with, begin To deprivation there have been must way Voutour’s car in the described rights, privileges, or immuni- eventually Vitale would use excessive force ties or secured Constitution laws of against Voutour—and it was Vitale’s use deprivation the United States. Here the of excessive is force that the constitutional alleged would consist Vitale’s use of violation Wheeler would have to have shooting excessive force Voutour. See “known” Supreme would occur. The Court 3, supra. question note The harder is has admonished that the fourteenth amend- Police whether the Chiefs conduct can be ment should not turned into “a font deprivation, said caused to have this so as law to superimposed upon tort whatever to make the liable under section 1983. systems already be administered rejected firmly Court has re- Davis, 693, the states.” 701, 424 Paul U.S. spondeat superior as a basis 1155, 1160, 96 S.Ct. 405 L.Ed.2d liability officials, supervisory Mo- (1976). We affirm the district court’s Services, Department nell v. Social grant judgment summary 658, 58, 2018, n. U.S. 694 56 L.Ed.2d 611 98 S.Ct. 2037 n. section 1983 claim Officer (1978) (citing Rizzo v. Wheeler. Goode, 362, 370-71, 423 U.S. S.Ct. Police Chief of 603-04, (1976)), L.Ed.2d 561 munici- Monell, palities, granted summary judg- 436 U.S. at 98 S.Ct. at The court also ment, then 2036. The Court has guage the lan- based on such materials as were said that 1983, it, in or “subjects, claims section causes before Voutour’s Saugus. subjected,” of to be should not construed of Police and Town be Chief Police, liability, is to the Chief of include vicarious which based With allegations: public policy that on considerations of than rather complaint makes these “condoned, Nonetheless, ac- encouraged, and fault or causation. low- the Chief prior suggested statutory of er courts have that the in defendant Vitale’s use quiesced language enough con- broad characterized such is to extend liabili- force and excessive duct as and that the Chief “reasonably adequate ty personally not involved part Vitale’s duties” those of defendant rights. duty deprivation of had a to undertake constitutional Facteau, 693, procedures in se- v. F.2d 696 McClelland 610 820 312, 326, Dodson, 102 454 U.S. County v. are limit- Cir.1979). situations Such (10th ed, (1981)). 445, 454, L.Ed.2d 509 70 showing an “affirma- S.Ct. however, ones the su- the conduct of link” between tive pervisor Rizzo, employee. that court agree with the district We 371, 604. S.Ct. at 96 at 423 U.S. of on lack 1983 claim based that a section proper police least, very hand, requires, at plaintiff training has at the case In as to linking negligence both gross the Police of proof two theories advanced the Town. shooting Chief and to the of Voutour the Police conduct Chiefs Police Chief is Vitale:

by Officer holding squarely no case have found We policy or having established a charged with police chief negligence by a simple that using force and the excessive custom suffi- police officers is training subordinate police properly train officers did not Chief municipal lia- 1983 section to anchor cient firearms. in the use of require- light of MonelVs bility. In the the district court agree with We “the mov- must be policy that official ment no “[p]laintiff has adduced evidence that violation,” the constitutional ing force of police pattern of violent behavior show a 2038, 694, and the at at 98 S.Ct. 436 U.S. might support an inference allegation general that holding of Rizzo supported acquiesced or of Police fails to state negligence of administrative credit Even if we were to such behavior.” 1983, 423 claim under constitutional brutality as as police well complaints of 603-607, we 370-377, at 96 S.Ct. at U.S. shootings, cannot complaints of other simple than significantly more believe pattern police vio they form see necessary training is police negligence an inference of striking as to allow lence so section 1983. liability under municipal condonation, encouragement, supervisory addressed that have other courts Like most acquiescence.5 Herrera v. Val or even entine, (in Cf. supervisor matter, we hold 1220, (8th Cir.1981) 1225 653 F.2d negligence gross least must demonstrate amounting separate proving 40 incidents addition to indifference, and deliberate misconduct, plaintiffs showed that police causally linked to this conduct must that the subordinate’s il brought these incidents had been plaintiff’s civ- violation officials). supervisory attention 717 Hayden, v. Languirand rights. See Cir.1983) (“failure to training 220, (5th police lack of 227 The claim of F.2d train must negligence training gross under- firearms or that was constitute use of taken a different matter. the Chiefs motion indifference”); is, however, inadequate amounting in an manner to conscious 869, F.2d opinion granting County, 668 In its v. Hays Jefferson only Cir.1982) (municipal liability summary judgment, (6th 874 or to train complete that under section failure the district court held there is a where negligent grossly negligence would to be or gross 1983 have is so reckless in- is almost misconduct liability would attach. future shown before Valentine, F.2d evitable); 653 might v. went on to find that Herrera court negli- grossly negligence (failure train or possible gross for a to find 1224 at gent Haas, F.2d training); v. part the Police Chief and Owens both Cir.1979) (gross negligence (2d Vi- for their failure to train Officer Town indifference”); City judg- v. tale, “summary Leite but that nonetheless or “deliberate (D.R.I. Providence, F.Supp. for these defendants is still warrant- ment enough, 1978) way support (simple negligence in no ed because the affidavits reckless, or nonexistent negligence “training inference that such must be culpably neglect- ‘moving proximate grossly, palpably, force’ behind or even a (citing ed”). plaintiff’s injury,” Polk cause of Plaintiff, and, brief, present the officers in his from on the basis of makes much of an inci- reports, involving dent their Vitale was exonerated. A civil suit Officer Vitale which occurred on 10, 1976, brought against January subsequently Hilltop the Town at the Steak House Vitale, aggrieved patron Distressing alleged was settled. restaurant. It was that Officer officer, might duty Vitale's conduct who was on been on this occa- with another sion, wall, pushed patron against this isolated put incident cannot form the handcuffs predicate customary for the custody justi- on him and use of excess force took him into without Department. Landrigan patron Police fication. The was released within a Warwick, (1st City rejoined 628 F.2d Cir. party. short time and After learn- incident, 1980). ing reports the Chief obtained council ruling summary on the motion for When determine.” Id. It appears that, judgment, the district court in concluded that direct violation of statute, this Offi- contained sufficient facts the record from cer Vitale never attended police training gross negli- which a could found school until after the Voutour shooting, a gence part of both on the the Police Chief period of years almost five from the date agree Town. We with this conclu- of appointment his as a full-time police sion, reasons below. mentioned officer on the Department. Police however, say, court on to district went that given by The reason the Chief for the fail- the record did not admit of an inference ure to follow the statute was that Vitale gross negligence proxi- that such had received firearms in training Army plaintiffs injury. mate cause of With this police training as a reserve officer on point disagree. reviewing latter we After Department. Revere Police The stat- the record that was then before the court itself, however, ute is mandatory in its light in plaintiff, most favorable to terms, containing no exceptions. The ex- genuine conclude that there was a issue tent training of Vitale’s as a reserve officer of concerning material fact whether the documented, was not but the ap- statute alleged properly failure to train Officers plies police officers, to full-time not re- proximate Vitale and Wheeler was the serves, and no there is evidence that Vitale alleged cause of Vitale’s use excessive approved attended an police training school force Voutour. prior shooting. Nor, given the dif- in ference missions military between the respect proof gross negli- With police, and the is it clear that Army Vitale’s gence, this distinguishable case is from training would a satisfactory substitute many in others that materials before statutory requirements. According the court indicated the Police Chief deposition, to his training Vitale’s firearms by failing provide had violated state law Army was confined to M 1 Mand required police training. Vitale with 14—both rifles. There is no mention of handgun training. Moreover, it seems like- time of the facts Massachusetts At the ly police training, in addition to teach- required law ing proficiency in the handguns, use of person appoint- an Every who receives training would include as to the circum- regular police as a ment officer on a police stances which a officer should not permanent any city full-time basis in or shoot. town, shall, in any ... within nine appointment, months date Both Chief and Vitale testified that assigned police to and shall attend a training had other received in-service training approved by the school Massa- to the use of firearms. Ac- police training chusetts council for a testimony, cording their this consisted of study lasting at least six weeks course before call short sessions held roll and of complete satisfactorily and shall such target practice. occasional This was also course____ type training received Wheeler. Viewing light the record most favor- added). Mass.Acts, (emphasis ch. plaintiff, able to we conclude there “every provided that further The statute issue as to was an of fact the effectiveness permanent full- on a regular police officer training provided by of the in-service Sau- town, city ... such time basis gus Fyfe, its J. force. James attend a assigned to and shall shall be putative expert po- plaintiff witness for by the training approved Mas- school training procedure, testified lice for the police training council sachusetts training firearms was inade- in-service approved an course completing purpose time, quate this limited at because was such inter- of in-service study of firearms use and han- time as the mechanics periods of for such vals arrested,” department dling, “approaching through and to this learn trial and target practice. He concluded that error after a life or taken. limb has been “[t]he Saugus Department to failure of the Police foregoing We think the indicated a provide Officers Vitale and Wheeler with concerning triable issue not the training in-service reck- job relevant was grossly negligent Police Chief had been less, generally accepted police violative of point of conscious indifference with re and a direct cause of the reckless practice, spect police training, particular and in unjustifiable shooting of Mr. Voutour.” training.7 Vitale’s the record also Whether added.) Also, (Emphasis Chief Forni had reflected a causal connection between the proposal previously stated for the reor- training per lack of and Vitale’s actions is Saugus Depart- ganization of the Police closer, haps Viewing but we believe it did. opinion that it ment was “in-service light plain the facts most favorable to training at roll call 30 minutes is tiff, it could inferred the arrest adequate or effective.” culminating shooting in Vitale’s of Vout our, itself, shooting testified in answers to inter- and the The Chief were so mis rogatories that neither Vitale nor handled in their Wheeler various details as to indi any training in received the use of fire- cate that trained officers would not have testimony he arms. Vitale’s was that acted this manner. a .38 Smith and

owned Wesson revolver Also relevant to the issue of causa that he himself in trained the use of it. plaintiff’s tion expert, was affidavit of In the record before the district court Fyfe, stating, among James F. other a letter from one of the was Chief’s subor- things, shooting of Voutour was a detailing separate dinates three incidents highly predictable inadequate result of the unjustified of the use of service revolvers training received the Town offi Depart- members Police particularly cers and Vitale’s lack of basic ment.6 letter which written six affidavit, police training. Fyfe if ad prior shooting, months 56(e), con- obviously missible under Fed.R.Civ.P. following: tains provides support additional for causation. But need question not consider the compensate How does one for the lost since, it, admissibility its even without we appears life or limb? It [sic] enough think there was evidence from the 1:00 a.m. to early morning 9:00 a.m. might reasonably which causation be in getting division are not any competent summary judgment inap ferred to make bodies), (only men as this is the third propriate. shooting question division separate separate three officers on three viewing Thus light facts in the most occasions. shooting One of the in- ] [sic plaintiff, favorable to we think the district being

volved a defendant shot the ab- granting erred in summary judgment court requiring hospitalization. domen adequate Chief on the issue of appears It also police training. trial, course, efforts are becom- At ing futile training when it comes to some opportuni- district court will have the usual ragarding ty legal officers and han- sufficiency use to review the [sic ] dling of their actually By service revolver. Several evidence Voutour submits. then, I spoken officers that to fear for after especially examination and safety public safety witnesses, their as well cross-examination of see C. Miller, employ Wright when we men such & A. as Officer Federal Practice & § I would not like to see Procedure: Civil the evi- [name deleted]. type likely 6. None of these involved Vitale. would be the of result that would be to arise—and hence be "known” under Harlow Wheeler, qualified 7. Like Chief Forni raised a —from a failure to train officers in the good immunity faith defense Voutour’s proper weapons. use of situation, section 1983 claim. Unlike Wheeler’s however, wrongful shooting we believe that a as to the received rectify dence take reasonable measures to knowledge and responsibility Languirand Hayden, Chief’s situation. will See fully more We F.2d only delineated. hold at 227-28. See also Bennett v. City applicable that under standards to a Slidell, (5th motion 728 F.2d 762 Cir.1984) (en summary judgment, for banc). Voutour was enti- Whether or not there is sufficient proceed tled to to trial on this matter. The evidence in the record to create a jury therefore, court, granting erred in summa- question on this score will be for the dis- ry judgment against the Police Chief on trict court to determine.

Voutour’s section 1983 claim. Saugus

Town of THE EVIDENTIARY RULINGS Vitale objected has Since we have to four sustained the areas of testi- district mony grant prejudicial he were summary judgment court’s claims the irrelevant. part objections Police on the Since these of the claim may that retrial, permitted he established or arise we deem it custom of advisable to police violence, on them excessive rule now. affirm, also We note first any that reasons, for the same evidence summary the which is harmful judg- party to a is in part. prejudicial; ment the Town on that sense question, that the there- fore, is whether probative “its value is sub- adequacy With stantially outweighed by danger the of un- training given to defendant offi the the prejudice.” fair Fed.R.Evid. 403. cers, reasoning much of the same that evidentiary The first area was the granting us to vacate the of sum caused testimony admission of to the effect that mary judgment against the Chief leads us officers, police other than Vitale and grant summary judgment the to vacate Wheeler, who arrived on the scene after Saugus. Town of This does not for the shooting up the beat passengers in the however, mean, that Town would certainly Voutour automobile. This might automatically finding if were a liable there prejudicial effect on Vitale’s case. properly train the Chief’s failure to transcript, proba As we read the trial and, relevant, Wheeler, extent Vitale purpose testimony tive of the was three negligence gross rose to standard of got fold: to show how marks certain on the amounting to conscious indifference. The automobile, important an and dis that the Town evidence demonstrate issue; puted explain factual derelictions, testimo not aware of the was Chief’s ny passenger assuming proven. The MacDonald cross-exam these are Town interrogato previously ination that he had testified Manager, pretrial answer to ries, get would like followed the he even with the stated Town statutory training police; position and to police mandate for as a show the nothing policy. passengers in the in the matter There is car. Under circum stances, ruling to indicate whether Town knew the district record court’s that the statutory disregard in Vi- probative testimony of the Chief’s value of the out pursued not weighed case. The matter danger prejudice tale’s was of unfair was parties by not, by view, or addressed district danger in our error. summary at the time court the motion minimized the court’s instruction at the judgment admitted, was under consideration. The time the evidence was and re only liable if it or the could be found Town peated charge, beating that the Manager8 should have knew or Town passengers nothing “has to do with not known Chief was Mr. did what Vitale did or not do shoot properly officers then failed to police ing Mr. Voutour.” bylaws, the Town hiring Under ordinances supervi- officers and had some Manager responsibility sory had authority Town for the over the Chief of Police. objects to

Secondly, Vout district court instructed the Vitale shooting he question plaintiff’s the crucial testimony that after the our’s going to say: “This is 1983 claim was whether the officer defendant’s heard use of force was unreasonable and exces- Contrary to very hush-hush case.” be a allowing independent good sive. In not brief, an not representation in Vitale’s it is action, faith defense to the section 1983 made this statement was not clear that implicitly recognized district court that Of- testified that he did Vitale. Voutour ficer capacity his official police officers had no any of the know who special privilege or entitlement to shoot the night, and that the statement was plaintiff. The district pulse checked his court informed the by the officer who made jury police that the shooting. privilege deadly There was evi to use right after the jury could have force to arrest a felon in from which was not dence issue. jury the one who checked She instructed the that Vitale was to take into found account the “hush-hush” pulse and made all circumstances in determining whether Voutour’s no There was deadly pro- statement to Wheeler. Officer Vitale’s use of force to admitting the testi in partner of discretion tect his abuse was unreasonable and ex- mony. jury cessive. The was asked to consider the fact that Vitale was a senior officer in Finally, objects to the testi patrol a car and Wheeler was a reserve mony of the ambulance attendant that he officer, to consider whether Wheeler’s life by police was not informed that Vout danger, was fact in whether Wheeler our had shot. The been attendant’s testi would have been entitled to use force for mony police, he was did not know himself, and person whether a reasonable officer, him told that Voutour was a position of Vitale would have motor vehicle accident victim and it was not thought necessary protect force Wheel- until hospital Voutour was examined at the er. This instruction is consistent with the that he learned that Voutour had been law of Massachusetts. testimony shot. This was admissible to impeach testimony Vitale’s that he had told While the issue police of a officer’s use the ambulance driver and the attendant of force for purpose of protecting a that Voutour had shot. been person third has not been directly dis-

cussed Massachusetts Ju- Court, dicial its police treatment of a offi- REQUESTED THE JURY INSTRUC- cer’s deadly use of force to effect an arrest TIONS indicates that no distinction would be drawn police between a completeness, For the sake of officer’s use of deadly protect force to private and a objection arising upon to forestall this citi- zen’s use of retrial, deadly protect. force to plaintiff’s we address the claim In Randazzo, Julian v. 380 Mass. failing explicit the district court erred in N.E.2d 931 police a ly instruct the that the defendant officer’s use of had deadly force to effect an right arrest no more under Massachusetts was found law to be limited in way the same ordinary deadly private than an citizen to use citizen’s use of such force appears to effect propo force. It to be an accurate an arrest would be limited. Id. 403 sition that the N.E.2d at law of Massachusetts does 934. Where the grant Massachusetts police right not officers more courts have considered the deadly use of ordinary than an force citizen to shoot someone private protect citizen person, protect third person. opinion, a third It is our they adopted however, a reasonableness that an instruction to this effect stan- dard. Martin, be, best, and, worst, Commonwealth v. would at irrelevant Mass. (1936). N.E.2d misleading. The summary however, judgments standard, “may depend This in favor of the Chief of Police and upon relationship of part persons Town of Saugus on Voutour’s claims against Consequently, involved.” offi- Id. Vitale’s them under sec- tion 1983 alleging officer, cial status their giving while responsibility for inadequate police special rights, impor- him no remained an vacated, are these claims are jury’s tant consideration in the assessment remanded for further pro- ceedings events. The issue of inconsistent herewith. reasonably defendant acted is not at all part, part, reversed in Affirmed dependent any equality rights be- upon remanded proceedings con- further citizens, private tween officers sistent with opinion. this upon rather but a determination whether BOWNES, Circuit Judge (concurring). the defendant’s use force was excessive In in the circumstances. the circumstanc- I per concur the result of the curiam es, police officer Vitale was a and Wheeler opinion, express write specially but my partner. status as a police Vitale’s disagreement aspects two the anal- cir- cannot eliminated from the officer be ysis First, found therein. I believe there is cumstances, it rely nor should be. The stan- upon concepts no need to negli- tort of gence gross negligence or of relates back to dard reasonableness determine § liability will attach in under 1983. person is conduct for a what reasonable per opinion When the curiam uses this tort position. That the actor’s officers language, it is really discussing equal rights other to use and citizens presence negligence tort gross negli- of protecting one and discretion another gence, simply but the issue of foreseeabil- equal rights their judgment to use own ity consequences. of Foreseeability as a accordingly not relevant act is to a stan- § liability factor of is different than dependent of which is dard reasonableness foreseeability as a liability. factor of tort present upon all the in the variables situa- Negligence gross negligence are de- deeper involved analysis go tion. The must fined reference to law concepts common presumed equality rights of than care; of duty foreseeability of under requested was re- properly the instruction § 1983 is defined reference constitu- jected. statutory tional and standards which a rea- government sonable expect- official can be SUMMARY know, ed to Harlow Fitzgerald, 457 U.S. judgment as awarded So much 818-19, 2727, 2738-39, 102 S.Ct. against damages to Voutour (1982). result, L.Ed.2d 396 As a conduct law for assault under Massachusetts claim grossly negligent which be viewed as part The of battery is vacated. necessarily is not conduct for liabili- section dismissing Voutour’s judgment § ty may per attach under The 1983. cu- Vitale is also vacated. against claim appears opinion recognize riam this in its for a new trial. remanded claims are Both analysis against the claim of Officer Wheeler; although Officer Wheeler’s con- of in favor summary judgment might jury finding gross duct sustain a of against 1983 claim negligence, on the it could not find- Wheeler sustain § liability ing of under because the is affirmed. him repercussions of his con- constitutional summary judgments favor sufficiently duct were not foreseeable. Town of of Police and divergence Given this and the different fo- against them claims section 1983 Voutour’s § 1983, I think cuses of tort law and it they estab- on the contention based would more and less con- be both accurate using excessive policy or custom lished fusing language tort law in to avoid § are affirmed. force determining liability 1983. Thus under analysis against of the claim Chief For- suggest “objective I reasonable ni, gross it is couched in terms while qualified immunity ness” standard of set negligence, quite easily could be recast Harlow, out in 457 U.S. at 102 S.Ct. at along analysis the lines of the of the claim 2739, requires “objective a test of foresee Wheeler: Officer whether the con- im ability” which is lower than the one repercussions stitutional of his conduct posed by gross negligence If standard. sufficiently justify foreseeable to knowledge expected government of § holding him under liable person ficials is that which reasonable have, expected foresight could be objection My analysis second expected government officials should be per opinion in the curiam stems from found person. the same—that of a reasonable As requirement finding gross that a matter, practical this lower standard negligence opposed simple negligence effect on would have no the results this liability. necessary supervisory for is case. Leaving my objections to the use of aside concepts, this results is a these tort what point final which needs to be There is one likelihood or foresee- requirement that the discussing the In a footnote addressed. repercussions ability of constitutional Taylor, possible application of Parratt v. liability attaches under very high before 527, 101 68 L.Ed.2d 420 S.Ct. 451 U.S. § per curiam recognize I 1983. While .deprivations liberty, of life or majority of courts opinion follows vast might per opinion states that curiam foreseeability compa- requiring a level of negligence to hold that state reasonable finding gross required to that for a rable neg process sufficient remedies afford negligence, justification I find little liberty. life I do ligent deprivations of or direct- Supreme The Court has never this. should be extend not that Parratt believe I believe ly addressed this issue and do not property. beyond deprivations of See ed high can be inferred that such a standard 545, Parratt, § 101 at 1918 451 U.S. at S.Ct. particu- In 1983 decisions. from its other (Blackmun, J., concurring); Hudson v. Goode, lar, 423 I do not read either Rizzo v. — Palmer, U.S. -, - n. 4, 104 S.Ct. 598, 362, 46 L.Ed.2d 561 U.S. 96 S.Ct. 4, (1984)(Ste 3194, (1976), n. 82 L.Ed.2d 393 Department Social 3208 or Monell v. 658, 2018, Services, vens, J., concurring part dissenting 56 436 98 S.Ct. U.S. (1978), liberty to foreclose lower are such part). L.Ed.2d 611 Life and interests comparable foreseeability proce standard of cannot satisfied process that due —one simple negligence. Neither the Rizzo durally by provision post-deprivation link” be- requirement of an “affirmative point, “procedural due remedies. At some deprivation and tween the constitutional pro shades into due process substantive 371, conduct, challenged 423 U.S. at 96 cess, inapplicable.” and Parratt becomes requirement at nor the Monell S.Ct. Bordelon, 740 F.2d Thibodeaux v. “moving policy official force Cir.1984). (5th n. 9 338-39 violation,” 436 U.S. at the constitutional 2038, speak to more than 98 S.Ct. at be an affirma- requirement that there ON REHEARING tively shown causal connection between petition While the for rehearing correctly challenged conduct and the constitutional points out lapses several in the statement Monell, charac- deprivation. In the Court of facts in our opinion, which we [have having rejected terized as Rizzo responde- ..., we find, do corrected] after careful § liability, superior as a basis for review, that these affect or should affect liability based thereby rejecting vicarious our determination that the issues of the public policy rather on considerations of possible liability of Chief Forni and the Town of Saugus than fault or causation. should not be resolved on genuine whether liable under violated think a motion facts a sufficient issues of for most plaintiff’s not the Chief summary judgment. Viewing favorably for U.S.C. material fact showing constitutional § and Town are was made plaintiff, concerning having rights. of present mand further standing extent down principles ^[******] application rulings, of the Court’s decision without should that differ from any of our the district court on re- to us. Court in apply its best under- Tuttle lays regard in this Our determination petition rehearing is denied. not, page does 822 of our stated on right at the opinion, foreclose defendants’ to seek the district court’s close of evidence sufficiency of the evidence review then, By directed verdict.1 motion for a especially after examination cross-ex witnesses, Wright & A. see C. amination Miller, & Procedure: Federal Practice § parties may well Civil complete and presented a far more have meaningful picture what the Chief and Town had received what to know. Saugus knew or had reason determine, district court will be able law, has as a matter of sufficient basis on finding that record for BRASSLETT, Duane P. grossly negligent to the that the Chief was Plaintiff, Appellant, point of conscious indifference with training, and also whether there to Vitale’s support a verdict is sufficient evidence Saugus. page Town of See Raymond COTA, Jr., al., J. et present ruling 823. Our derstood as should not be un Defendants, Appellees. necessarily prejudging such a motion.

No. 84-1555. We must point. mention a further On

January Supreme 1985 the Court heard United States Court Appeals, argument in City Tuttle, Oklahoma No. First Circuit. 83-1919, 53 U.S.L.W. 5300. The Court’s decision in that case highly signifi- could be Heard Feb. cant respect with 1985. against to the claim Saugus, Town of since the issue before the Court involves determination of Decided May 16, the circum- 1985. stances in which a municipality is liable for misconduct of a officer. Tuttle could also light shed some further on the pertaining law Forni. goes to the claim say, Needless to when this ease court, back to the district this circuit’s directions opinion current yield must rulings may Court then make in Tuttle or elsewhere. To the respect 1. In the Town of through also Manager otherwise, its Town knew emphasized opinion in our prove the need to or should have known of the Chiefs dereliction. only that the Chief had grossly negli- page been See This issue pursued gent point of conscious indifference summary remand judgment procedures as Vitale, Town, but that the well as at trial.

Case Details

Case Name: James T. Voutour v. Harold Vitale, James T. Voutour v. Harold Vitale

Court Name: Court of Appeals for the First Circuit

Date Published: May 9, 1985

Citation: 761 F.2d 812

Docket Number: 84-1159, 84-1214

Court Abbreviation: 1st Cir.