John LANGUIRAND, Plaintiff-Appellee Cross-Appellant, v. John HAYDEN, An Individual, Defendant, City of Pass Christian, Etc., Defendant-Appellant Cross-Appellee.
No. 81-4329.
United States Court of Appeals, Fifth Circuit.
Oct. 17, 1983.
Rehearing and Rehearing En Banc Denied Nov. 30, 1983.
717 F.2d 220
Norman Breland, Gulfport, Miss., Walter J. Gex, III, Bay St. Louis, Miss., for plaintiff-appellee cross-appellant.
Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.
GARWOOD, Circuit Judge:
In this case we venture into the labyrinth of municipal liability under
THE INCIDENT
On the evening of December 2, 1974, plaintiff John Languirand and his friends, Kim Merritt and Rickey Foley, drove from
Meanwhile, about 10:30 or 11:00 p.m., John Hayden, a patrolman on the police force of defendant City of Pass Christian, had responded to a radio call concerning a prowler. He was near the reported location on Shadowlawn. As he drove onto this road, he turned off all the lights on his patrol car. He saw Languirand‘s car parked about “a hundred feet” from the residence of the person who had reported the prowler. Hayden stopped his car, got out, and turned on an overhead spotlight. Foley was moving back to the car. Hayden testified that he saw a shiny object in Foley‘s hands and that he shouted “stop” a number of times. Foley, however, testified that he was not carrying anything and that he heard nothing. Foley could not tell that the vehicle was a patrol car. Although Hayden testified that a flashlight was later found near the scene, this was not confirmed. He also stated that as Foley got in the car, it began to drive away and that he now saw the shiny object inside the car. Hayden testified that he was afraid because he thought this object was a gun. As the car began to drive away, Hayden fired his .357 Magnum revolver at the left rear tire of the car in an effort to stop it. Though he did not recall doing so, he fired a second shot also. During this time, John Languirand was bent over adjusting his tape deck, which was playing. He heard no warnings and did not see the patrol car pull up behind him. Suddenly, the spotlight was in his rearview mirror, he heard two shots,
PROCEEDINGS BELOW
Languirand filed suit on May 29, 1979, against Hayden and the City of Pass Christian (“City“). The case was tried to a jury before a United States Magistrate. The jury, in a general verdict without any special issues or interrogatories, found for Hayden and against the City for $1,500,000. The City appeals the judgment on the verdict against it. Languirand does not appeal the judgment in Hayden‘s favor.2 Languirand‘s suit against Hayden was based on the assertion that Hayden used excessive force in his attempt to stop or apprehend Languirand. However, it was not claimed that Hayden intended to shoot Languirand or anyone else. Rather, it was Languirand‘s theory that Hayden was grossly negligent in his shooting at the car in an attempt to stop it.3 The case against Hayden was submitted to the jury on the basis of whether he used excessive force and was grossly negligent in doing so, but the jury was also instructed to find for Hayden if he acted “in good faith with a reasonable belief under the circumstances, including his experience and training, in the validity of his conduct.” The theory of the plaintiff‘s suit against the City was that Hayden was inadequately trained, particularly in the use of his pistol, and that the shooting of Languirand was, as this contention was phrased in the trial court‘s charge to the jury, “a proximate result of the alleged policy or custom of the City of Pass Christian of placing armed officers on the streets without adequate training in the use of weapons or firearms.” The charge required a determination that the City was grossly negligent for a verdict to be rendered against it, but did not submit any good-faith defense with respect to the City.4
We reach only one issue—whether the evidence established the requisite custom or policy for which a city can be held liable under section 1983.
MUNICIPAL LIABILITY UNDER SECTION 1983
The Court in Monell did not address all the possible variations and permutations of section 1983 actions against municipalities. In Monroe v. Pape, the Court had observed that section 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” 365 U.S. at 187, 81 S.Ct. at 484. However, Monell does distinguish between ordinary tort liability and the liability of governmental units under section 1983 in its holding that respondeat superior is not available in the latter situation. Moreover, in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the Court also distinguished between section 1983 actions against individuals and those against municipalities by denying the latter a good faith immunity. A distinction was also made between the section 1983 liability of governmental units and individuals in Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), where it was held that the former were not subject to punitive damages, though the latter were.
Our research discloses no decision of the Supreme Court, or of this Court, which has made any holding, or given authoritative direction, on the issue of the liability under section 1983 of a governmental unit for injuries resulting from the lack of adequate training of its personnel. In Berry v. McLemore, 670 F.2d 30 (5th Cir. 1982), we were faced with a section 1983 suit against a municipality based on injuries directly caused by the intentional misconduct of its chief of police. We observed that
“... some courts interpreting Monell have held that a municipal policy of authorizing or encouraging police misconduct can be inferred where the municipality has been grossly negligent in the hiring, training, or disciplining of its police force. See, e.g., Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981); Owens v. Haas, 601 F.2d 1242, 1246-47 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Popow v. City of Margate, 476 F.Supp. 1237, 1245-46 (D.N.J. 1979); Leite v. City of Providence, 463 F.Supp. 585, 590-91 (D.R.I. 1978); see also Reeves v. City of Jackson, 608 F.2d 644, 652 (5th Cir. 1979) (dictum).” Id. at 32-33 (emphasis added).
We described that interpretation as “this most expansive view of Monell” and “expressly decline[d] to rule on whether this interpretation of Monell is proper.” Id. at 33 & n. 1. Such a ruling was not necessary because we found no evidence that the city‘s governing body was negligent in hiring or failing to train the police chief and because, with respect to the municipality‘s failure to discipline the police chief, “a municipal policy of authorizing or encouraging police misconduct ... cannot be inferred from a municipality‘s isolated decision not to discipline a single officer for a single incident of illegality.” Id. at 33.Other decisions of this Court, though not dealing with the issue of failure to train, have nevertheless emphasized the requirement that the wrongful act be taken pursuant to the municipality‘s custom or policy in order for the municipality to be liable under section 1983. See Brewer v. Blackwell, 692 F.2d 387, 400-01 (5th Cir. 1982) (police chief‘s insistence that prisoner sign hold harmless agreement before release from jail not shown to be pursuant to any municipal policy or custom to require such agreements); Walters v. City of Ocean Springs, 626 F.2d 1317, 1323 & n. 3 (5th Cir. 1980) (allegedly malicious warrantless arrest without probable cause does not give rise to municipal liability under section 1983 where there is no evidence “there existed a municipal policy or custom that, when carried out, inflicted the injury,” and such a policy is not adequately shown by testimony that investigation in question “would meet the standards required by the [city] Police Department“). On the other hand, where the offending action carries out a municipal
Though not involving the liability of a governmental unit as such, we believe this Court‘s opinion in Wanger v. Bonner, 621 F.2d 675 (5th Cir. 1980), aptly illustrates some of the foregoing principles. There, the defendant sheriff, Bonner, was held individually liable under section 1983 for the actions of his deputies in searching throughout the Wangers’ residence in connection with a middle-of-the-night attempt to serve an out-of-county arrest warrant specifying the address of the Wangers’ house as that of Payne, the party named in the warrant. In fact, Payne was not present and apparently had never had any connection with the Wangers or that address, where the Wangers had lived for three years. No attempt was made to check the accuracy of the address information on the warrant, either before proceeding to the residence or following the Wangers’ protest and production of identification when the deputies arrived and announced their purpose. Instead, the deputies simply proceeded to make a thorough search. Despite the fact that frequently as many as one fourth or one fifth of the warrants served would have incorrect addresses, it was the policy of the sheriff‘s office that “no attempt was made to verify the correctness of addresses on warrants received from other counties prior to attempting to serve them” and “the standard instructions from the Sheriff‘s Department were always to search the premises when informed that the person named in the warrant was not present at the address listed on the warrant” even though there was no information, other than the listing on the warrant, that the address was correct and no attempt had been made to verify it. Id. at 679-80. In the incident in question, the deputies were acting pursuant to these policies. This Court‘s opinion commented that the defendant sheriff‘s “failure to adopt policies to prevent constitutional violations ... [w]ould not be an adequate basis for [his] liability under § 1983,” but affirmed a judgment against the sheriff because “his liability was based upon affirmative policies that he acknowledged adopting concerning the manner in which arrest warrants were to be served ... that had precipitated the alleged unconstitutional actions of his deputies.” Id. at 680-81 (emphasis added).
This rationale was followed in Reimer v. Smith, 663 F.2d 1316 (5th Cir. 1981), in upholding the dismissal of a section 1983 complaint against a Texas Ranger captain grounded on the actions of his subordinates, it being alleged that “as their superior officer” he “was negligent in his failure to supervise them.” Id. at 1323. The Reimer opinion observes: “In Wanger ... we stated that a supervisory official could not be held liable for failing to adopt policies to prevent constitutional violations ....” Id. See also Vela v. White, 703 F.2d 147, 153 (5th Cir. 1983).
We will not attempt a review of the numerous decisions in other Circuits touching on these points. As might well be expected, they are not entirely harmonious. Some of these decisions, while allowing section 1983 recovery against a municipality for failure to properly train and discipline police officers, nevertheless apparently require that this be an essentially systemic failure resulting in a pattern of police misconduct. See, e.g., Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981).7 See also McClelland v. Facteau, 610 F.2d 693, 697 (10th Cir. 1979) (“must show that the defendant was adequately put on notice of prior misbehavior“). Such a requirement would appear to be consistent with the general rule as to the requirement of proof of custom or policy. See Powe v. City of Chicago, 664 F.2d 639, 649-52 (7th Cir. 1981).
We also observe that it is well settled that a municipality may be liable under section 1983 for the intentional conduct of its governing body, even though such conduct is an ad hoc, isolated, individual action not taken pursuant to any overall municipal custom or policy. See, e.g., Newport v. Fact Concerts, Inc., supra (city council); Owen v. City of Independence, supra (city council); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (school district board of trustees). This is also true regarding deprivations directly caused by the intentional actions of individual officials respecting a subject matter where they have the legal “final authority,” and are the “ultimate repository of ... power,” of the governmental unit in question. Familias Unidas, 619 F.2d at 404. But we have held city police chiefs not to be such officials, even as to their intentional actions, as they are almost uniformly subordinate to the city‘s governing body. Brewer v. Blackwell, 692 F.2d at 401; Berry v. McLemore, supra. Cf. Bennett v. City of Slidell, 697 F.2d 657, 661 (5th Cir.), rehearing granted, 706 F.2d 533 (5th Cir. 1983) (deprivation directly caused by intentional acts of city building inspector and city attorney).
We conclude that if there is a cause of action under section 1983 for failure to properly train a police officer whose negligent or grossly negligent performance of duty has injured a citizen, that such failure to train must constitute gross negligence amounting to conscious indifference, and that a municipality is not liable under section 1983 for the negligence or gross negligence of its subordinate officials, including its chief of police, in failing to train the particular officer in question, in the absence of evidence at least of a pattern of similar incidents in which citizens were injured or
EVIDENCE CONCERNING THE CITY‘S LIABILITY
Hayden was hired by the City‘s police department as a dispatcher in January 1974. He had graduated from high school in 1971, and before his employment with the police department had successfully completed a two-year junior college course in which he was awarded an Associate Degree in Law Enforcement. This course, however, did not include field training or actual practice in the use of weapons. Hayden‘s twenty-first birthday was in March 1974. In August 1974, he passed, with a score of 81, a civil service examination and was made a patrolman (though the evidence is unclear, it appears Hayden also took and passed a civil service examination before becoming a dispatcher). The examination was prepared and administered by the City‘s civil service commission.
Hayden was scheduled to attend the Mississippi Law Enforcement Officers’ Academy for an eight-week law enforcement training course, including weapons firing, beginning in September 1974. However, he was married on August 30, and pursuant to his request, was allowed to postpone his attendance at the Academy.
There is nothing to suggest that prior to the incident in question Hayden‘s performance of duty was in any way deficient, or
The evidence was conflicting as to the extent of Hayden‘s training and ability to use his revolver. Hayden testified he shot on his own in the woods and at a target range, and was able to hit what he was aiming at. Gerald Peralta, who was the City‘s chief of police from 1969 until August or September 1974, testified that he required new officers to qualify on the firing range before being allowed to carry a weapon, and that he assumed, though he could not specifically recall, that Hayden did so.8 However, Hayden admitted that he had not received formal training in the use of his weapon, and the jury was free to find that he had not qualified and that his testimony as to the extent of personal practice and skill in the use of the weapon was exaggerated. While Peralta and Johnson, the assistant police chief who became acting chief on Peralta‘s departure, each expressed the opinion that Hayden was fully competent to handle his patrolman job, the jury was free to find otherwise, particularly considering the testimony of Senator Smith, based on his investigation of the incident (see note 3, supra), that at the time in question Hayden had not “had the minimum training that was necessary for him to do his job.”
Hayden, having been suspended on account of the incident, “resigned” two days after its occurrence. The investigation of the incident was conducted by the sheriff‘s department, partially at the request of the new police chief, Edward Alley, who had commenced his employment with the City on the morning of December 2, 1974. Alley shortly thereafter instituted a policy that “every police officer riding in a squad car has to go to police academy [the Mississippi Law Enforcement Officers’ Academy] before he gets in the car.”9
There is simply no evidence that the City, or its police force, had any policy or custom
Of course, if the City had had in force the policy that Chief Alley subsequently promulgated, and which Smith testified he believed all cities should have, Hayden would not have gone on patrol without having first attended the Academy. But under the evidence here, this failure to have earlier adopted an Alley-type policy cannot be converted into having a policy of placing incapable police officers on patrol. There is simply no showing that such was the case. Whatever policies the City may have failed to adopt respecting training, there is no showing that any of its officers, other than Hayden, were not adequately equipped, by training, experience, and ability, to competently perform their jobs. What we are dealing with here, so far as this record
Nor does the evidence here warrant a finding that the City‘s governing body was itself grossly negligent in allowing Hayden to go on patrol without adequate training or experience. These were matters which were handled by the police chief, and both occupants of that position during the time in question thought that Hayden was capable of doing his job. Steven Saucier, the mayor during this period, testified at trial, “Not that I know of,” when asked, “Had Mr. Hayden had any formal weapons training that you know of prior to December 2, 1974?” Saucier also testified that he did not know what experience Hayden had shooting a .357 Magnum pistol or what Hayden learned in his law enforcement education course at the junior college. Under the evidence here, this testimony is insufficient to support a finding that the members of the City‘s governing body were themselves grossly negligent, or consciously indifferent to the welfare of the citizens, in failing to prevent Hayden from going on patrol without further training. There is no evidence that they knew or believed he was likely incapable of doing the job, or that they had compelling cause or occasion to question the judgment of the chief or acting chief.
CONCLUSION
Certainly, there is evidence from which the jury could reasonably conclude that Hayden was grossly negligent on the occasion in question and, arguably, that the City police chief was grossly negligent in sending Hayden on patrol without additional training. However, because there was no evidence that the City police force in general was inadequately skilled or experienced, that there had been any other actual or claimed incidents of police misconduct or negligence, that the City had any general policy or custom of sending unskilled or inexperienced officers on patrol, or that the members of the City‘s governing body were themselves grossly negligent in failing to prevent Hayden‘s going on patrol without additional training, we hold that there has been an insufficient showing to authorize imposition of section 1983 liability on the City itself. We accordingly reverse the judgment below against the City.
REVERSED.
GOLDBERG, Circuit Judge, specially concurring:
I concur in the result.
No. 82-3294.
United States Court of Appeals, Fifth Circuit.
Oct. 17, 1983.
Rehearing and Rehearing En Banc Denied Nov. 17, 1983.
Notes
“He [Hayden] was not attempting to shoot anyone in the car. There were two shots fired. The first shot entered the lower left panel down by the tire of the car at an angle which was apparent to me that he was attempting to stop the car or was aiming at the tire. The second bullet entered above that, just a little bit to the right and entered just above the body of the car and went through the—this was a convertible car, by the way—went through the canvas and part back at the left side, left rear of the car.
“I simply think he fired the gun twice in rapid succession, attempting to shoot the left rear tire of the car out, and the second shot the gun jumped on him and the bullet went through the back of the car and struck the Languirand boy.
“Q. Do you think he intended to fire the second shot?
“A. I think he intended to fire it, but I think he was intending to fire it at the tire, and that the gun simply rose on him.
“Q. All right, sir. On the basis of your experience would you expect that a gun of that caliber, a .357 Magnum, to raise up when it was fired like that in rapid succession.
“A. Yes, sir, I would.”
Plaintiff‘s counsel took the same position in argument to the trial court (“it is the plaintiff‘s position that all proof adduced in this trial so far shows that there was no intent upon the part of John Hayden to shoot the plaintiff here“) and jury (“I have no doubt in my mind John Hayden did not intend to hurt John Languirand“). This position might have been influenced by Hayden‘s reliance on the Mississippi one year statute of limitations for “assault.”
Further, it is difficult for us to discern from Parratt an overall pattern of section 1983 jurisprudence such as to throw meaningful light on the particular problems we seek to resolve here. We note that in a sense Parratt seems to potentially expand section 1983‘s reach, by its discussion of negligent deprivations. On the other hand, not only does its focus seem to be on procedural (rather than substantive) due process, but it heavily relies on the impropriety of “turning every alleged injury which may have been inflicted by a state official acting under ‘color of law’ into a violation of the Fourteenth Amendment cognizable under § 1983” so that “any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983.” Id. at 544, 101 S.Ct. at 1917. The latter language is strongly reminiscent of the suggestion in Paul v. Davis, 424 U.S. 693, 698, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405 (1976), also authored by Justice Rehnquist, that “survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle” would not have claims under section 1983. We also note that the observation in Justice Powell‘s concurring opinion in Parratt, “arguably, if the absence of a tort remedy is the heart of one‘s constitutional claim, the defendant in the § 1983 suit must be the State itself, or its lawmakers, both of whom are immune from suit,” id. at 550 n. 8, 101 S.Ct. at 1921 n. 8, is not addressed by the Parratt majority. We have not found Parratt to impose liability on a municipality under section 1983 in all cases of injury caused by the municipality‘s negligence, even where the state law remedy may be inadequate. See Hull v. City of Duncanville, 678 F.2d 582 (5th Cir. 1982) (alleged failure, even if intentional, of municipality to enforce speed limit and erect needed traffic control device at dangerous crossing, resulting in serious accident, does not state section 1983 claim against municipality, even if state law remedy were inadequate).
Parratt may well become a key to the weaving of an overall seamless web of section 1983 jurisprudence. The creation of such an overall pattern, however, is beyond our competence as an inferior court, and we are unable at this time to discern all the permutations of its likely eventual development by the Supreme Court.
We note that Hayden apparently had no qualified immunity under Mississippi law. See Holland v. Martin, 214 Miss. 1, 56 So.2d 398 (1952).