JILL BROWN, Plaintiff-Appellee-Cross-Appellant, v. BRYAN COUNTY, OK; ET AL., Defendants, BRYAN COUNTY, OK, Defendant-Appellant-Cross-Appellee, STACY BURNS, Defendant-Cross-Appellee.
No. 98-40877
IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT
July 18, 2000
219 F.3d 450
[Copyrighted Material Omitted]
Appeals from the United States District Court for the Eastern District of Texas.
Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
OPINION
1 This appeal presents a case brought under
2 We conclude that the evidence, given the standard of review of a jury verdict, fairly allowed the jury reasonably to conclude that Bryan County‘s sheriff, admittedly a policymaker, failed to train Burns in the light of facts demonstrating an obvious need to train him. We think the jury reasonably concluded that, given notice of the need to train Burns and that the consequences of the failure to train him were so obvious, that the County is culpable for its failure to train him. Furthermore, the evidence allowed a reasonable inference that the decision not to train Burns was the “moving force” behind, i.e., directly caused, the injuries suffered by Brown. Given these conclusions, we hold that Brown established that Sheriff Moore‘s decision not to train Burns constituted a policy decision for which the County is liable under
3 The case has a significant procedural history. We have issued two previous opinions, see Brown v. Bryan County, Oklahoma, 53 F.3d 1410 (5th Cir. 1995), withdrawn and superseded by, 67 F.3d 1174 (5th Cir. 1995), and the Supreme Court has considered the case. See Bd. of the County Comm‘ns of Bryan County v. Brown, 520 U.S. 387 (1997). When the Supreme Court reversed our decision upholding liability against the County on the basis of its hiring decision,1 we remanded to the district court for further consideration. Specifically, the district court had to decide whether liability against the County could be upheld on the basis of the jury‘s finding that the County had a policy of not training its officers. 117 F.3d 239, 240 (5th Cir. 1997). On remand, the district court denied the County‘s motion for judgment as a matter of law and upheld the earlier jury verdict in favor of the plaintiff. The County appeals the district court‘s denial of its j.n.o.v. motion. In a cross-appeal to this second judgment, Brown complains that the district court struck all compensatory damages for lost income and lost earning capacity, and reduced to a nominal award damages awarded for her abstract injuries from the violation of her constitutional rights.
4 We affirm the judgment as it relates to the County‘s liability under
5 The jury awarded Jill Brown extensive damages on her
II
6 The underlying events occurred in the early morning hours of May 12, 1991. Todd Brown was driving a pickup truck from Texas into Oklahoma, with his wife as a passenger, when he saw a roadblock ahead. He decided, for reasons the jury could have accepted as plausible, to turn around. The execution of the 180 degree turn and the speed of the pursuit that followed were hotly disputed before the jury. Jill Brown claims to have been asleep through most of this event. The County deputies eventually stopped the Browns’ truck on an unlighted country road.
7 The events leading to Jill Brown‘s injuries were also disputed. As we must, we accept the version of the facts most favorable to upholding the verdict. Indeed, it is not contested that Burns‘s application of excessive force resulted in a constitutional injury in violation of Brown‘s Fourth Amendment rights. Burns removed Brown from the truck using, what he claimed, an “arm bar” technique. Brown testified that Burns used force despite her best efforts to comply with Burns‘s command to her to exit the truck. Burns says that he needed to use this technique because she was unresponsive to commands to get out of the vehicle.3 According to Burns, Brown was bending forward in her seat after Burns opened the truck door. Burns interpreted this as a threatening gesture, that is, she may have been reaching for a gun. Burns, however, admits that Brown did not struggle, did not strike out, and did not even say anything to him during the course of the event. In the process of removing Brown, Burns grabbed her, pulled her from the truck, and spun her to the ground. She landed on the pavement knees first. Either during or immediately after application of the “arm bar” technique, Burns had at least one knee in Brown‘s back. As a result of the incident, Brown suffered severe knee injuries.
8 It is important to note some pertinent background facts relating to Burns. At the time of the incident, Burns was only twenty-one years old. He was also inexperienced. He had been on the force for a matter of weeks. He had no experience as a law enforcement officer before beginning work as a reserve deputy for the County. His educational background consisted of a high school diploma and a few semesters of college. Although purporting to have majored in criminal justice, Burns testified that he had not taken any law enforcement courses. His work experience consisted of general delivery and sales--“kind of a ‘go-fer‘“--for two furniture companies.
10 Finally, his conduct for the short time that he had been on the force also suggested a problem. Specifically, the jury reasonably could have concluded that he had an excessive number of “takedown” arrests, similar to the one in which Jill Brown was injured.
11 We also note several relevant background facts with respect to operation of the sheriff‘s department. Here, the evidence, viewed in the light most favorable to the jury‘s verdict, showed the County to have a policy of providing no training itself for its regular officers and reserve deputies. The record indicates that the County‘s practice was to hire individuals for full-time positions who had already received training from Oklahoma‘s Commission on Law Enforcement Education and Training (“CLEET“) program.6 With respect to reserve deputies of Bryan County, the record is not entirely clear whether CLEET is mandatory. The County also made available television training programs through the Law Enforcement Training Network (“LETN“) (although Sheriff Moore testified that there is no requirement that the programming actually be watched), and there remained the possibility that an officer could receive ad hoc on-the-job training.
12 Sheriff Moore acknowledged that the County itself does not train its officers. Confirming this admission, Sheriff Moore further testified that there were no funds to train personnel.7 Both the plaintiff‘s expert and the defendants’ expert corroborated this lack of training, and it was stressed to the jury during the plaintiff‘s closing argument. Further substantiating Sheriff Moore‘s testimony about the absence of County-provided training, Officer Morrison, Burns‘s partner during the incident, testified that, although he completed CLEET training before joining the County‘s force (through working in another county), he had received no training from the County.
13 The County‘s handling of Burns also reflects its lack of a training program. At his deposition, Burns testified that he had received no training through Bryan County. Specifically, he testified that he received “no formal training.” He did not even receive any “written documentation from Bryan County as to [his] duties as a reserve officer.”
15 Closely connected to its practice of providing no training, the evidence reasonably supported a conclusion that the County also failed to provide formal, and very little effective, supervision for its reserve deputies who were “on the street.” Moore acknowledged that he gave no explicit instructions to any deputy about his responsibilities to supervise a reserve deputy. The officer accompanying Burns during the incident testified that he received none. The County‘s own expert testified that such supervision of an “inexperienced, untrained” officer is required. The County‘s expert also testified that a reasonable police chief would have provided these guidelines to his regular deputies and to reserve deputies.
III
16 We review de novo the district court‘s ruling on a motion for judgment as a matter of law. See Travis v. Bd. of Regents of Univ. of Texas, 122 F.3d 259, 263 (5th Cir. 1997). A motion for judgment as a matter of law will be granted only if
17 the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict. . . . On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied . . . .
18 Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc). “A motion for judgment as a matter of law . . . in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury‘s verdict.” Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997). We consider all of the evidence, drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir. 1996). Although we review denial of a motion for judgment as a matter of law, we note that our standard of review with respect to a jury verdict is especially deferential. See, e.g., Snyder v. Trepagnier, 142 F.2d 791, 795 (5th Cir. 1998) (“We may overturn a jury verdict only if it is not supported by substantial evidence, meaning ‘evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.’ We accord all reasonable inferences to the nonmovant, and we reverse only if no reasonable jury would have arrived at the verdict.“).
19 It is clear that a municipality‘s policy of failing to train its police officers can give rise to
20 Here, the parties have stipulated to constitutional injury and the existence of a policymaker. Therefore, to establish whether the district court correctly judged
21 An official policy, for purposes of
A
1
23 Based on the way the parties present and argue this case on appeal, we focus on whether the failure to provide Burns training as an individual, and not whether the County had a policy of not training its deputies generally.10 We ask whether there was a decision by a policymaker that can satisfy the first element of ultimately imposing Monell liability. In other words, if Monell liability is to be imposed, it must be done on the grounds of the single decision by Sheriff Moore to require no training of Burns before placing him on the street to make arrests.
24 Given our standard of review, we think that the jury could have found that the failure to train Burns was a decision that amounted to a County “policy.” First, Sheriff Moore was a policy maker who either could require training for Burns or not. Furthermore, Moore‘s awareness of Burns‘s youth, inexperience, personal background, and ongoing arrest activities while with the department, along with the highly predictable risk of injury from the improper use of force by an untrained officer, provided sufficient notice to Moore of the need to train Burns so as to make his failure to require training a conscious decision.
2
26 We then turn to address whether municipal liability for failure to train can attach from a single decision of a policymaker. The County insists it cannot.
27 We think it is clear from the Court‘s decisions in City of Canton, 489 U.S. at 380 & 387, and Bryan County, that, under certain circumstances,
(a)
29 In City of Canton, 489 U.S. 378, a detainee brought a
30 In City of Canton, the Supreme Court addressed several issues that are relevant to our consideration of the appeal before us. For the first time, the Court made clear that a municipality could be liable under
32 Furthermore, the Court noted that the focus of the inquiry in determining city liability for failure to train must be “on the adequacy of the training program in relation to the tasks the particular officers must perform.” Id. at 390. Here, for example, we must focus on the adequacy of training of Burns in relation to performing in an arrest situation. And City of Canton admonishes that we must examine the evidence for deliberate indifference of the county and not be satisfied with mere negligence in failing to train.
33 Finally, we think that City of Canton again spoke to the facts in this appeal in footnote ten. There it observed that it is a fact to a moral certainty that police officers are required to arrest fleeing felons. Thus, when the city arms its officers to carry out this task, there is thus the obvious need to train officers in the constitutional limitations on the use of deadly force. This need for training is so obvious that the failure to train is deliberate indifference to constitutional rights. This same observation, we think, may be applied in making arrests with force.
34 In sum, for purposes of considering the appeal before us, we draw the following guidance from City of Canton: The failure to train may be actionable under
35 Where a
section 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of constitutional rights of their citizens, the dictates of Monell are satisfied.
36 Id. at 396.
37 With City of Canton establishing some key principles for our consideration of this appeal, we now turn to Justice O‘Connor‘s further refinement and development of those principles--particularly as relates to the liability of the county for a single decision by a policymaker--in Brown v. Bryan County, 520 U.S. 397 (1997).
(b)
39 As we have earlier noted, in Bryan County, considering the same facts in this appeal but in a different light, the Supreme Court reversed the judgment to the extent that an inadequate hiring policy of the county was the basis for liability. The question presented to the Supreme Court was whether Sheriff Moore‘s decision to hire Burns constituted a policy that, under Monell, could trigger liability against the County. The Court acknowledged that earlier decisions of the Court may have indicated that a single decision attributable to a municipality could hold it liable. It distinguished those cases, however, because they involved formal decisions of municipal legislative bodies. Furthermore, in those cases, fault of the policymaker and causation between the policy and the injury were obvious. Bryan County, however, unlike other cases, presented a different kind of a case where the decision by the county to hire Burns was legal, and it was Burns, the employee, who used the illegal excessive force, and not the County itself. Where the County has not directly inflicted an injury, but the allegation is that the County has nevertheless caused an employee to do so (e.g., by failing to screen or train employees), “rigorous standards of culpability and causation must be applied to assure that the [county] is not held liable solely for the actions of its employees.” Id. at 405.
41 Relative to the judgment we consider today, however, the Bryan County Court distinguished between liability imposed on the basis of a hiring decision and liability imposed on the basis of a county‘s failure to train. “[P]redicting the consequence of a single hiring decision . . . is far more difficult than predicting what might flow from the failure to train a single law enforcement officer as to a specific skill necessary to the discharge of his duties.” Id. at 410. Acknowledging that City of Canton condoned municipal liability on the basis a single event of failing to train an employee, the Court rejected Jill Brown‘s attempt to analogize her hiring claim to failure-to-train cases because of the greater predictability of the consequences that flow from the failure to train an employee. The Court noted that the consequence of failing to train a single law enforcement officer as to a specific skill necessary to discharge his duties is far more predictable than is the consequence of a single hiring decision. Id. at 410.
42 Thus, although a hiring claim is clearly barred on the basis of the evidence before us in this appeal, we cannot accept the county‘s argument that Bryan County is a bar to considering whether the same evidence constitutes a basis for liability against the county under the plaintiff‘s failure to train claim. Indeed, the Bryan County Court noted that:
43 In Canton, we did not foreclose the possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential violation for such violation, could trigger municipal liability.
44 Id. at 409.
45 We think the Supreme Court‘s decision in Bryan County simply makes clear that the evidence must withstand a vigorous test whether a reasonable jury could conclude: first, it should have been obvious to Sheriff Moore that the highly predictable consequence of not training Burns (and not providing supervision over his conduct when making an arrest) was that Burns would apply force in such a way that the Fourth Amendment rights of the citizens of Bryan County were at risk; and, second, that this failure to train or to provide supervision was “the moving force” that had a specific causal connection to the constitutional injury. In short, the evidence must establish, under the stringent standards of the Supreme Court‘s pronouncements in Bryan County, unmistakable culpability and clearly connected causation.11
B
47 Next, we consider the culpability element necessary to establish the County‘s liability. We conclude that the County‘s provision of no training (and no supervision) to Burns, on these facts, constitutes “deliberate indifference” to the health and safety of the citizens of Bryan County.12
48 First, we take it as elemental that police officers need at least some training to perform their job safely and effectively. Here, the evidence, including the expert testimony, supported this proposition. The jury was therefore justified to conclude that it was obvious to Sheriff Moore that officers without any training have a high predictability of injuring citizens, routinely and unnecessarily, through use of improper techniques, improper force, and improper judgment calls. Our review of the record further indicates that the jury reasonably could have concluded that it was obvious new reserve officers, while being trained, require at least minimal supervision.13
49 That the County, through its policymaker, is culpable for purposes of
50 The same observations apply to the facts showing no supervision of reserve officers. As we have discussed, the jury reasonably could have found that Burns remained, essentially, unsupervised. Sheriff Moore testified he did not authorize Burns to make arrests, and that he limited Burns‘s authority by refusing to allow him to carry a gun or drive while on duty. Moore also testified that he intended that Burns be supervised by a full-fledged deputy. Other testimony contradicted Sheriff Moore‘s claims with respect to proper supervision. First, Sheriff Moore could point to nothing to prove a policy of supervision except his assertion that such responsibility was “common knowledge.” Morrison, the deputy accompanying Burns, testified that he had never been given any instructions from the Bryan County Sheriff‘s Department as to how he should work with a reserve deputy. When cross-examined in reference to his testimony that he told Burns about his limited authority to make arrests, Sheriff Moore could say only that, “[h]e knowed it.” Burns stated that Moore‘s only limitations on his activities were not being allowed to carry a gun or to drive a police car. Indeed, Burns testified that Sheriff Moore had authorized him to engage in arrests. Burns testified that he believed he had authorization from Moore to participate in the acts involved in the Brown pursuit and arrest, including use of the arm bar technique. Sheriff Moore did not inform the deputy accompanying Burns that Burns was limited in his authorization. At minimum, the policy of not supervising inexperienced officers could reasonably lead the jury to conclude that the failure to train made the County even more culpable for the constitutional injuries that followed.
C
52 Having concluded that the evidence supports a finding that Sheriff Moore consciously failed to train Burns, and having concluded that such a policy decision was the result of deliberate indifference to the rights secured under the Fourth Amendment, we now turn to consider whether there is sufficient causation between the policy decision and the injuries Jill Brown suffered to hold the County liable for those injuries.
53 Our review of the record convinces us that the jury had before it substantial testimony that much of the officers’ conduct, and Burns‘s conduct in particular, during the incident was contrary to professional standards. According to the expert testimony, Burns violated basic standards of police conduct, standards that would have been taught Burns in any basic police training. The jury could have drawn inferences that the failure to have trained Burns to follow professional police standards was the moving force causing Brown‘s injuries. Specifically, on the evidence before it, the jury could have concluded that the County, abetted by its policy of failing to supervise untrained deputies, allowed Burns to participate in the pursuit and arrest of Brown and that his lack of training in safety precautions and in arrest situations and in actually making the arrest, was the “moving force” that caused the injuries inflicted upon her.
54 As a preliminary matter, the jury heard expert testimony that the pursuit across state lines and the method of the stop were extraordinary and contrary to professional standards when the officers had no reason to suspect a felony violation. Indeed, the defendants admitted that they did not suspect any felonious behavior. Next, the testimony showed that the positioning of the patrol car vis-a-vis the Browns’ pickup truck after the stop was highly unusual. Instead of positioning themselves in front of or behind the Browns’ truck, Officer Morrison pulled alongside of it, a position labeled by the County‘s own expert as improper because it placed the officers in peril.
55 There was further expert testimony that Burns‘s subsequent actions demonstrated a lack of knowledge of basic police tactics. First, without pause and without ascertaining the Browns’ intent, Burns immediately exited the patrol car and approached the Browns’ vehicle. Instead of moving behind the truck, he crossed in front of the truck. In doing so, not only did he cross through Officer Morrison‘s line of fire, but during his approach to the passenger side of the Browns’ truck he exposed himself to any risk the Browns may have posed. Third, testimony suggested that, despite the lack of light, Burns may not have used his flashlight to illuminate Ms. Brown. Thus, he could not see with any clarity what she was doing in the truck cab.14 Officer Morrison, however, testified that the Browns both raised their hands when so instructed. Fourth, Ms. Brown testified that Burns exposed himself to further danger by reaching across her to unbuckle her seat belt. Fifth, the risk Burns posed to Brown was aggravated by the officers’ perception of a high-speed chase, when the danger of harm to officer and citizen as a result of lack of training is especially grave.15 Indeed, the experts implied that the combination of a potentially dangerous situation and Burns‘s lack of a firearm may have led to his overreaction if Burns felt at risk, but did not have the proper tools to protect himself. The jury could reasonably have inferred that all of these enumerated professional failures on Burns‘s part, errors that were inconsistent with police training, created a situation that provoked a degree of fear for his safety, which prompted him to overreact. The jury reasonably could have inferred from the testimony, that with proper training Burns would have suggested that legitimate reasons existed to explain why an individual may be slow to exit a vehicle and thus Burns would not spontaneously have felt compelled to use force on someone who was offering no resistance. Finally, the absence of training is reflected in the injury that resulted to Brown, an injury that stemmed from what the testimony suggested is an extraction technique involving, properly applied, a minimum use of force. The jury could have reasonably concluded that, with training, Burns would have used the “arm bar” technique in a manner so as not to inflict injury.
57 In sum, the jury reasonably could have concluded that the County‘s decision not to train Burns, compounded by its policy of not requiring proper supervision, was the “moving force” behind the unconstitutional use of excessive force, which caused Brown‘s injury.
D
58 We sum up. Given our standard of review, we conclude that the evidence in the record allowed the jury reasonably to find that Sheriff Moore made a conscious decision not to train Burns, that because the need to train Burns was obvious, the failure to train him constituted “deliberate indifference” to the constitutional rights of the citizens of Bryan County, and that this decision was the “moving force” behind Brown‘s injuries. We therefore conclude that the decision not to train Burns was a policy choice on which
59 On cross-appeal, Jill Brown challenges the district court‘s decision not to enter judgment in accordance with the jury‘s verdict on lost income and lost earning capacity, as well as for abstract constitutional injuries she suffered. The jury awarded Brown $36,000 for lost income and $180,000 for lost earning capacity, and $100,000 in damages for her constitutional injuries. In this respect, the County never raised any objection to her evidence, did not object to the jury‘s charge, and did not raise any objection to those damages in any postjudgment motions. Despite this lack of objection by the County, the district court, sua sponte, as it had done in its first entry of judgment, again entered judgment upon our remand that struck Brown‘s economic damages and reduced her constitutional damages to a nominal $1.00. Brown asks us to review these alleged errors of the district court and to restore these damage awards.
60 Because Brown failed to object to these reductions made by the district court, we consider the district court‘s rulings under a plain error standard. We have defined “plain error” to mean “unobjected-to (forfeited) errors that are plain (‘clear’ or ‘obvious‘) and affect substantial rights. . . . [W]e ‘should correct a plain forfeited error affecting substantial rights if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Douglass v. United Servs. Automobile Assn., 79 F.3d 1415 (5th Cir. 1996) (quoting United States v. Olano, 507 U.S. 725, 732-37 (1993)); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). See also Johnson v. United States, 520 U.S. 461, 466-67 (1997):
61 Under [the plain error] test, before an appellate court can correct an error not raised at trial, there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
62 (Alterations in original.) The Supreme Court has explained these terms to the extent that (1) “clear” means “the error is clear under current law,” Olano, 507 U.S. at 734, and that (2) “affects substantial rights” means that “the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” Id.
A
63 The district court‘s ruling on economic damages for lost income and earning capacity must be reversed.17 Although Brown failed to preserve this error by a proper objection, we think the district court‘s ruling constitutes plain error.18
64 In Morante v. Am. Gen‘l Fin. Center, 157 F.3d 1006 (5th Cir. 1998), we said:
65 It is well-settled in this circuit that a motion for judgment as a matter of law filed post verdict cannot assert a ground that was not included in the motion for judgment as a matter of law made at the close of the evidence. See Allied Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th Cir. 1993) (explaining that under
Rule 50 , a motion for directed verdict is a prerequisite and ‘virtually jurisdictional’ so that a motion for JNOV cannot assert a ground that was not included in the motion for directed verdict). See also Perricone v. Kansas City S. Ry. Co., 704 F.2d 1376, 1380 (5th Cir. 1983). In Sulmeyer v. Coca Cola Co., 515 F.2d 846 n.17 (5th Cir. 1975), this court explained that “[i]t would be a constitutionally impermissible re-examination of the jury‘s verdict for the district court to enter judgment n.o.v. on a ground not raised in the motion for directed verdict.”
B
67 We now consider the district court‘s reduction of the $100,000 the jury awarded to Brown as damages for deprivation of her constitutional right not to be subjected to excessive force ($50,000) and for her loss of liberty ($50,000). We have reviewed the district court‘s Judgment, March 31, 1998 Order, and supporting June 22, 1998 Memorandum Opinion and Order. We find that the decision to strike the $100,000 damage award for violation of Brown‘s constitutional rights does not constitute plain error. The only error the district court made in this respect was submitting this issue to the jury.
68 Under clearly established jurisprudence, “the abstract value of a constitutional right may not form the basis for
69 We therefore will reinstate the reductions in the jury verdict only with respect to Brown‘s lost income/earning capacity damages.
VI
70 The County also claims that the district court erred by failing to offset Brown‘s recovery by $5,001.75 that the Supreme Court awarded to the County as costs. Brown does not respond to this argument in her brief. Those costs may be offset against Brown‘s recovery.
71 In sum, we hold that on the facts of this case, the district court properly rejected the County‘s motion for judgment as a matter of law on Brown‘s
VIII
72 For the reasons we have stated in this opinion, the judgment of the district court is affirmed as modified in accordance with this opinion and
73 REMANDED to the district court for entry of judgment consistent with this opinion
In other words, to watch people, if when you have them stopped to be sure one of them couldn‘t hurt you. There‘s — there‘s ways that you watch, keep an eye on things.” That is the entirety of his statement.9 10 11 12 13 14 15 16 17 18 19 20DeMOSS, Circuit Judge, dissenting:
74 This appeal is the latest in a series of appeals which deal with the same factual and legal claims between the same parties. For ease of reference, these are defined as follows:
75 (1) Brown v. Bryan County, 53 F.3d 1410 (5th Cir. 1995) (hereinafter “Brown I“)
76 (2) Brown v. Bryan County, 67 F.3d 1174 (5th Cir. 1995) (hereinafter “Brown II“)
77 (3) Board of County Comm‘rs of Bryan County v. Brown, 117 S. Ct. 1382 (1997) (hereinafter referred to as the Supreme Court decision in Brown)
78 (4) Brown v. Bryan County, No. 98-40877 (5th Cir., argued October 6, 1999) (hereinafter Brown III or the current appeal).
79 My review of the history of this long-term, complicated, and at times acrimonious litigation has persuaded me that our Court has made some errors in processing these appeals which deserve recognition and correction as part of the resolution of the current pending appeal.
80 My concerns relate to the confusing and anomalous treatment of the claims of liability against Bryan County (the “County“) under
81 In Brown I, the original panel of this Court discussed the liability of Bryan County in Part VI of that opinion. In Part VI(A), a majority of the panel determined that the jury findings supported a determination of liability on the part of Bryan County because Sheriff Moore‘s decision to hire Burns without proper investigation amounted to deliberate indifference to the public welfare. In Part VI(B), the original panel unanimously determined that no recovery against Bryan County could be based on the theory of failure to properly train Burns after hiring because our Circuit‘s clear precedents require more than a single instance of injury or an isolated case of one poorly trained employee for municipal liability to attach. Judge Emilio Garza dissented on the basis that liability against Bryan County could not be sustained because one inadequate background investigation, even by a municipal policy maker, is not enough to constitute “the unconstitutional municipal policy” contemplated by Monell.
82 Following issuance of this opinion on June 2, 1995, another judge of this Court held the mandate and initiated correspondence with the original panel because the portion of Brown I holding the County liable was in conflict with a prior decision of this Circuit in Stokes v. Bullins, 844 F.2d 269 (5th Cir. 1988). Also, Bryan County filed a motion for panel rehearing and a suggestion for en banc reconsideration as to the portion of Brown I which held the County liable for an inadequate hiring policy. Mrs. Brown did not file any motion for panel rehearing or en banc reconsideration.
83 Considerable exchange of memoranda finally resulted in a decision by the original panel in October 1995 to rewrite its opinion and substitute a new opinion, Brown II, for Brown I. Apparently, the purpose of this rewrite was to minimize the “en banc worthiness” of the new decision by making clear that the affirmance of the County‘s liability was based on the particular factual determinations by the jury relating to the inadequacies of the investigation and the inappropriateness of Burns’ prior “criminal” record. In accomplishing the rewrite, however, all of Part VI(B), which determined that the County was not liable on any failure-to-train theory, was omitted.
84 I have not found any indication in the record to suggest that Part VI(B) was intentionally omitted in the redrafting which produced Brown II. I have great difficulty in understanding why Part VI(B) was omitted and have concluded that it must simply have been an inadvertent omission. Clearly, the text of Part VI(B) of Brown I was a completely accurate summary of our Circuit‘s law on failure-to-train cases; and so far as I can tell, no party nor any judge on our Court raised any question as to the validity or accuracy of that text. If Part VI(B) had been left in Brown II, Mrs. Brown would have had an occasion to file a motion for panel rehearing or en banc reconsideration as to that issue. And failing relief by rehearing or en banc reconsideration, Mrs. Brown would have had an opportunity to apply for a writ of certiorari to the Supreme Court as to the correctness of the decision in Part VI(B) regarding the County not being liable for failure-to-train.
85 I note that in both Brown I and Brown II there is a short paragraph following the title “DISCUSSION” which includes the following sentence in both opinions: “For efficiency‘s sake, we will address only those points that we believe merit review.” Obviously, in Brown I the panel felt the discussion in Part VI(B) merited review because Part VI(B) dealt with a theory of recovery which was actually tried before the jury, and as to which Bryan County preserved error in the district court, and the topic was fully briefed on appeal. Why the original panel determined that Part VI(B) no longer merited review in the redrafting which produced Brown II is truly a puzzle to me.1
86 After issuance of Brown II, our Court voted not to give en banc reconsideration to this appeal, and Bryan County applied for a writ of certiorari to the Supreme Court which was granted. In its opinion, the Supreme Court noted:
The [Fifth Circuit] court held, among other things, that Bryan County was properly found liable under
§ 1983 based on Sheriff Moore‘s decision to hire Burns. The court addressed only those points that it thought merited review; it did not address the jury‘s determination of county liability based on inadequate training of Burns, nor do we. We granted certiorari to decide whether the County was properly held liable for respondent‘s injuries based on Sheriff Moore‘s single decision to hire Burns. We now reverse.
88 Brown, 117 S. Ct. at 1386-87 (citations omitted) (emphasis added). The Supreme Court vacated the judgment of the Fifth Circuit and remanded the case “for further proceedings consistent with this opinion.” Id. at 1394. When this appeal arrived back in our Court, the original panel promptly remanded it to the district court, and in so doing, I think the original panel clearly erred. In my view, upon remand from the Supreme Court, the original panel should have taken two steps:
89 a. First of all, the panel should have determined the portions of Brown II which had not been reversed by the Supreme Court. Clearly, the portions of Brown II which discuss the liability of Reserve Deputy Burns individually and the quantum of damages had not been changed in any way by the Supreme Court decision, and an order affirming the district court‘s determination of liability against Deputy Burns individually and the quantum of damages resulting therefrom could have and should have been issued to effect a final disposition thereof; and
90 b. The original panel should have determined the question of whether or not the County could be liable on a theory of failure-to-train Deputy Burns. As indicated earlier, the theory of failure-to-train had been actually tried to the jury, error in regard thereto had been preserved by the County, the theory had been briefed and argued on appeal, and the original panel had in fact decided that our Circuit law would not permit such a recovery in Part VI(B) of Brown I. In my view, our Court has a clear duty to decide all issues raised on appeal; and deciding not to decide (or inadvertently failing to decide) is just as big an error as deciding contrary to existing case law precedent in our Circuit.
91 Given the settled status of our Fifth Circuit case law on the failure-to-train theory, I think the original panel clearly should have issued a supplemental opinion holding that recovery against Bryan County could not be made on the failure-to-train theory; and in view of the Supreme Court decision holding that Bryan County could not be held liable on the improper hiring theory, the original panel should have instructed the district court to enter a judgment that Mrs. Burns take nothing from Bryan County under
92 Instead of taking either of the steps suggested in the preceding subparagraphs, the original panel simply entered an order remanding this appeal to the district court “for consideration in conformity with the opinion of the Supreme Court.” Brown v. Bryan County, 117 F.3d 239, 240 (5th Cir. 1997). When the case got back to the district court, each side promptly filed motions for judgment as a matter of law. No further evidence or testimony was presented by either party. The district court, therefore, had no evidence before it which it did not have at the time of the original trial four years earlier. The only new thing which the district court had after remand which it didn‘t have at the time of the original trial was the Supreme Court decision in Brown itself and the rather disingenuous arguments made by counsel for Mrs. Brown that this Supreme Court decision cast a whole new light on the question of municipal liability in failure-to-train cases. This argument was made in the face of the express statement by the Supreme Court that it was NOT addressing a failure-to-train claim in its opinion. When the Supreme Court says it is not addressing a claim in its opinion, I think we should take them at face value and not allow extrapolations of dicta in that opinion to have any effect on the status of our Circuit‘s settled law — i.e., in this case that failure-to-train claims require a pattern or history of other incidents to support deliberate indifference on the part of the municipality.
93 Not surprisingly, the district court again found that the evidence was sufficient to support the jury‘s finding of liability on the failure-to-train theory. I am disturbed by the facility with which the district court simply ignored what was then the most recent decision of our Circuit reaffirming and reapplying the rule that a failure-to-train claim had to be based on more than one instance. See, Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998), cert. granted, 119 S. Ct. 863, cert. dismissed, 119 S. Ct. 1493 (1999). As a result, the more or less automatic and unstructured remand by the original panel to the district court proved to be not only a terrible waste of judicial resources and duplication of effort, but also provided Mrs. Brown with a dramatic “second bite at the apple” on her liability claims by permitting a reassessment of the failure-to-train theory by the same district judge whose holding on that same issue was determined to be inconsistent with Fifth Circuit precedent by Part VI(B) of Brown I.
94 Bottom line, it seems to me that the best way to extricate this Court from this convoluted mess is simply to “fess up” that the original panel inadvertently omitted Part VI(B) in the redrafting between Brown I and Brown II and that upon remand from the Supreme Court, the original panel inappropriately remanded to the district court without first deciding the issue of liability on the failure-to-train theory which was appropriately before it. The solution then is for this present panel to do now what the original panel should have done upon remand from the Supreme Court, i.e., issue a supplemental decision which (i) reaffirms the decision of the district court assessing liability against Deputy Burns individually and fixing damages as determined by the district court; (ii) reverses the decision of the district court as to liability on the part of Bryan County on the theory of failure-to-train; (iii) recognizes that the Supreme Court has determined that liability upon Bryan County for improper hiring is not supportable factually or legally; and (iv) directs the district court to enter judgment that Mrs. Brown take nothing from Bryan County under her claims for deprivation of constitutional rights under
95 Obviously, the foregoing analysis has fallen on the deaf ears of the current panel majority. In their haste to find a “deep pocket” from which Mrs. Burns may recover the compensation determined by the district court, the current panel majority articulates a variety of new theories with which I must, respectfully, disagree. First and foremost, the current panel majority overstates the impact of the Supreme Court decision in Brown on the decision of this Court in Brown II. Second, the current panel majority ignores the clear line of Fifth Circuit precedent which establishes the criteria necessary to establish municipal liability for failure-to-train. Finally, the current panel majority misapplies dicta in the Supreme Court decision on the issue of hiring as being controlling on the issue of failure-to-train.
96 Does the Supreme Court Decision in Brown Vacate the Entirety of the Fifth Circuit Decision in Brown II?
97 After our circuit issued its opinion in Brown II, the only party to apply for writ of certiorari to the Supreme Court was Bryan County which asked for a review of the holding in Brown II that it was liable under
We therefore vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.
99 520 U.S. at 415, 117 S. Ct. at 1394.
100 The current panel majority in this appeal concludes, as indicated by footnotes 1 and 17 of the majority opinion, that this ending direction from the Supreme Court is a complete vacatur of the entirety of this Court‘s decision in Brown II and that, consequently, Brown II no longer constitutes “the law of the case” in any respect. In support of this conclusion, this current majority relies upon quotations from two Supreme Court cases in footnote 1. Standing alone, these quotations seem to support the majority‘s position, but when read in the context of the cases from which they are taken, it is obvious that these two quotations were part of larger directives being issued by the Supreme Court in those cases, which required the remanding of those cases to the lower courts for consideration of events that had occurred while those particular cases were on appeal. In effect, the current panel majority attempts to draw a general rule out of specific directions issued in cases which are totally different from Brown from a procedural standpoint.
101 It seems axiomatic to me that since neither Deputy Burns nor Mrs. Brown attempted to appeal from the decisions in Brown II, relating to Deputy Burn‘s liability and the quantum of damages, those parts of Brown II would clearly become final and constitute law of the case, if not res judicata, as to those matters. Consequently, our original panel erred when it decided to remand this case to the district court without specifying that such matters were not to be reopened. In point of fact, the district court seems to have assumed that these matters were law of the case, for in issuing its new opinion on remand, the district court spoke only as to the liability of Bryan County, and it ended up determining the same quantum of damages that it had determined at the time of the original trial. Consequently, in my view, Mrs. Brown had no basis whatsoever for seeking to reopen the damage determination with the district court, and the current majority errs in deciding to permit reconsideration of that damage determination by the district court and in awarding Mrs. Brown a recovery in a quantum greater than that which she declined to appeal from in Brown II.
102 In issuing its directive at the end of the majority opinion in Brown, the Supreme Court said absolutely nothing about remanding the case to the district court for “reconsideration by the district court” of any of the issues on appeal in Brown II. The Supreme Court decision dealt solely with the single issue as to which certiorari had been granted, and nothing in the Supreme Court decision in Brown can be deemed a mandate to reopen either the quantum of damage issue or the question of the liability of Deputy Burns.
103 What Effect Does the Supreme Court Decision in Brown have on the Law Determining the County‘s Liability under Section 1983 for Failure-to-train?
104 As indicated earlier in this dissent, the Supreme Court expressly indicated that it was not addressing the theory of County liability based on inadequate training of Deputy Burns because that theory had not been addressed by our Court in Brown II. Despite this express disclaimer, Mrs. Brown and the majority both urge a reading of the Supreme Court decision in Brown that would clearly authorize a holding of County liability under
105 Specifically, the Supreme Court said that the district court‘s instruction on inadequate screening before hiring was defective because: (1) it did not specify that the applicant being considered “was highly likely to inflict the particular injury suffered by the plaintiff“; and (2) because it failed to require a finding that Burn‘s background “made his use of excessive force in making an arrest a plainly obvious consequence of the hiring decision.” Brown 117 S. Ct. at 1390.
106 It will be apparent to anyone reading the Supreme Court decision in Brown that the Court drew certain distinctions between
107 (1) Avoid the “danger that a municipality will be held liable for an injury not directly caused by a deliberate action attributable to the municipality itself“; and (2) In order to “prevent municipal liability for a hiring decision from collapsing into respondeat superior liability.”
108 Brown, 117 S. Ct. at 1391.
109 But the simple fact that the Supreme Court declined to accept Mrs. Brown‘s “proffered analogy” between failure-to-train and inadequate screening cases says very little, if anything, about whether the Supreme Court intended to erect a new or different set of criteria for analyzing a failure-to-train theory.
110 In short, the Supreme Court decision in Brown on the inadequate screening claim, says absolutely nothing about changes in the criteria for analyzing a failure-to-train claim.
111 Impact of Supreme Court Decision In Brown on Fifth Circuit Precedent Defining Criteria for Failure-to-train
112 At the time the original panel issued Brown I in this case, this Circuit had a clear and consistent precedent that in order to recover against a municipality under
That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer‘s shortcomings may have resulted from factors other than a faulty training program.... Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct.
114 City of Canton, 109 S. Ct. at 1206.
115 As indicated earlier in this dissent, I recognize that Part VI(B) of Brown I was inadvertently omitted in the rewrite that produced Brown II. As indicated earlier in this dissent, I recognize that Part VI(B) of Brown I, in which a majority of this Court held that the same evidence before the Court in this appeal failed to establish the County‘s liability for failure-to-train, was inadvertently omitted in the rewrite that produced Brown II. But our Circuit has traditionally followed a rule of orderliness that a subsequent panel may not reach a decision inconsistent with the decision of a prior panel unless there has been an en banc decision of our Court or a Supreme Court decision to the contrary. See, e.g., Grabowski v. Jackson County Pub. Defenders Office, 47 F.3d 1386, 1398-1403 (5th Cir.) (Smith, J., concurring in part and dissenting in part), vacated for reh‘g en banc, id. at 1403, district court judgment aff‘d, 79 F.3d 478 (5th Cir. 1996) (en banc); see also Arnold v. U.S. Dep‘t of Interior, 213 F.3d 193, 197 (5th Cir. May 25, 2000); Teague v. City of Flower Mound, 179 F.3d 377 (5th Cir. 1999); Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
116 Likewise, our Circuit also has a policy that requires a subsequent panel to give deference under the law of the case doctrine to a holding of a prior panel in the same case. See, e.g., Beets v. Johnson, 180 F.3d 190 (5th Cir. 1999) (applying law of the case doctrine to decline reconsideration of an issue decided in a previous appeal), cert. denied, ___ U.S. ___, 120 S. Ct. 946 (2000); Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1094 (5th Cir. 1996); United States v. Singleton, 49 F.3d 129, 134 (5th Cir.); Griffin v. Box, 956 F.2d 89, 93 (5th Cir. 1992). The law of the case doctrine should foreclose reconsideration of the quantum of the damages in this case and reconsideration of the issue of municipal liability under
117 Admittedly, both the rule of orderliness and the law of the case doctrine are prudential in nature and do not actually subtract from a court‘s power to decide. But despite the prudential nature of these rules, this Court has consistently adhered to them. Moreover, while the circumstances in this case which resulted in Part VI(B) of Brown I being dropped out of the original panel‘s decision in Brown II are somewhat peculiar and anomalous, I think the policies behind these rules justify their application in this case. First of all, the record in this case is identical in all material respects to the record presented to the panel in Brown I and Brown II, a record the panel found insufficient to establish the County‘s liability for failure-to-train. Second, the procedural posture of this case is in all material respects identical. While the case has been appealed to the Supreme Court and remanded to the district court, the district court merely entered judgment as a matter of law on the basis of the jury findings without the benefit of any new evidence. Our task, therefore, remains the same as that presented in both Brown I and Brown II, which is to measure the adequacy of the trial record under the controlling legal standards. In this vein, the original panel‘s determination that the record simply does not measure up may not be binding or mandatory, but I see no basis for saying that the prior work by a three-member panel of this Court in a prior appeal involving the same issues, the same parties, the same record, and the same procedural posture is not entitled to any deference whatsoever. Indeed, such an approach is inconsistent with the prudential rules by which we govern ourselves as a collegiate court.
118 Unfortunately the current panel majority simply ignores both the existing Fifth Circuit precedent and our prudential rule of orderliness. In so doing, I think they err grievously. They obviously do not cite any en banc decision of this Circuit which changed or overruled the precedent established by Languirand, Rodriguez, and Fraire. Likewise, the current panel majority does not cite a Supreme Court case which holds that the requirement of our Circuit precedent of a pattern of prior incidents being necessary to establish deliberate indifference on the part of a municipality under
119 In short, three panels of this Court have read the very same Supreme Court language and reached the conclusion that municipal liability under
120 What Impact Does the Supreme Court Decision in Brown Have on The Supreme Court Decision in City of Canton?
121 Both the current panel majority and Mrs. Brown‘s brief take the position that the Supreme Court decision in Brown should be read as elaborating upon and extending the holding in City of Canton that an inadequate claim could be the basis for
We spoke, however, of a deficient training “program,” necessarily intended to apply over time to multiple employees. Id. at 390, 109 S. Ct. at 1205. Existence of a “program” makes proof of fault and causation at least possible in an inadequate training case. If a program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice that a new program is called for. Their continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action — the “deliberate indifference” — necessary to trigger municipal liability. Id. at 390, n.10, 109 S. Ct. at 1205 n.10 (“It could ... be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are ‘deliberately indifferent’ to the need“); id. at 397, 109 S. Ct. at 1209 (O‘CONNOR, J., concurring in part and dissenting in part) (“[M]unicipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations ...“). In addition, the existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the “moving force” behind the plaintiff‘s injury. See id., at 390-391, 109 S. Ct. at 1205-1206.
123 Brown, 117 S. Ct. at 1390.
124 Note the repeated emphasis on the word “program” and note the use of the plural form of the words “violations” and “employees,” both of which necessarily indicate instances of more than one violation by more than one officer.
125 Moreover, note the existence of the reference to “existence of a pattern of tortious conduct.” Each of these comments by the Supreme Court in Brown demonstrate that what it was saying in City of Canton is that the surest way to establish the required deliberate indifference on the part of the municipality is to prove that its training program has failed to prevent more than one constitutional violation by more than one employee over a period of time, and that such proof would support a finding of deliberate indifference by the municipality.
126 Also, in explaining why the analogy urged by Mrs. Brown between failure-to-train cases and inadequate screening cases was not persuasive, the Supreme Court in Brown stated the following:
In leaving open in Canton the possibility that a plaintiff might succeed in carrying a failure-to-train claim without showing a pattern of constitutional violations, we simply hypothesized that, in a narrow range of circumstances, a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations.
128 Brown, 117 S. Ct. at 1391.
129 Note, first of all, the characterization of the language in Canton as a hypothesis not a holding. Note next that the Supreme Court in Brown characterized the applicability of the language in Canton as applying to “a narrow range of circumstances,” but the Supreme Court in Brown did not add any further examples beyond those already mentioned in City of Canton as to circumstances which would fit in this narrow range.
130 Finally, note that the Supreme Court decision in Brown, upgraded the probability of a violation of constitutional rights occurring in an improper hiring case from “so likely to result,” as stated in City of Canton, to “highly predictable consequence.” These same language distinctions are at the root of the Supreme Court‘s analysis as to why the jury instructions in Brown on the inadequate hiring issue which was before it were defective. The jury instructions and issues on failure-to-train given by the district court were virtually identical to the jury instructions on inadequate hiring. As I have stated earlier, I do not think the Supreme Court in Brown spoke in any way to the jury instructions and issues on failure-to-train. But since we are now asked to make an educated guess as to what we think the Supreme Court would do with the failure-to-train instructions and jury issues in this case, if, as, and when, those matters get before the Supreme Court, I would put my money on the Supreme Court finding them deficient for two reasons: first, because they inquire about the deficiency of training of an individual, not the deficiency of a training program; and second, because they lack the specificity of constitutional violation and set too low a test of probability just like the issues found deficient by the Supreme Court on inadequate hiring in its opinion.
Conclusion
131 For all of the foregoing reasons, I respectfully dissent from the analysis and conclusion of the majority opinion. I urge Bryan County to file a motion for panel rehearing and suggestion for en banc reconsideration with respect to the majority‘s treatment of both the liability and damage issues so that all of the active members of our Court might have an occasion to address the very serious issues raised by the majority‘s handling of this appeal.
NOTES:
Notes
Sheriff B. J. Moore would have acted with deliberate indifference in adopting an otherwise constitutional training policy if in light of the duties assigned to Deputy Sheriff Stacy Burns the need for more or different training was so obvious and the inadequacy so likely to result in violations of constitutional rights, that Sheriff B. J. Moore can be reasonably said to have been deliberately indifferent to the constitutional needs of the Plaintiff.
By implication, the Court approved this instruction in Bryan County. 520 U.S. at 411. That this finding was not a de facto finding of negligence may be inferred from the jury‘s additional finding, Interrogatory No. 9, that the County was also negligent in the training of Burns.