Lead Opinion
In the early hours of April 23, 1990, Paul Palmquist, a resident of Bensenville, Illinois, began acting strangely. He screamed obscenities and incoherent statements, threw things in his apartment, stomped around the yard, and broke his neighbor’s windows. Around 5:30 a.m. he threatened to kill the paper deliverer. She reported this to the Bensenville police, who rushed to the yard outside Palmquist’s apartment to investigate. They found him there shouting wildly, brandishing a muffler pipe and a fan blade. Palm-quist defied the officers’ requests to calm down and drop the weapons. He told the officers they would have to kill him. When they attempted to arrest him for breaking the windows, he refused to be taken. As the officers approached Palmquist, he swung the pipe at one of them and landed a blow. After Palmquist swung at the officers again, another officer fired numerous shots. Palm-quist was killed.
Palmquist’s estate sued the Village of Ben-senville and its police for excessive force under 42 U.S.C. § 1983, contending that they violated Palmquist’s civil rights when he was shot and killed. After a month-long trial a jury found the defendants liable and awarded his estate $165,000. The defendants appeal this verdict, arguing that the district court excluded evidence that Palmquist wanted to commit “suicide by police.” Among other contentions, the defendants also submit the Village should not be held liable for failure to train its officers, as the jury found. We affirm in all respects, except for the “failure
I.
Because the defendants challenge the district court’s denial of judgment as a matter of law and seek a new trial, we view the trial evidence of the events of the morning of April 23, 1990 in the light most favorable to the party winning the verdict, the plaintiff, and make all reasonable inferences which may be drawn from that evidence in favor of Palmquist’s estate. Futrell v. J.I. Case Co.,
Paul Palmquist was a 41-year-old former auto mechanic who lived in a basement apartment at 310 S. Miner Street in Bensenville, Illinois. He was 6T" tall and weighed 225 pounds. During the early hours of April 23, 1990, neighbors heard a series of disturbances: Palmquist was screaming obscenities and incoherent statements, throwing things in his apartment, stomping around the yard, and breaking glass windows. Around 5:30 a.m. Palmquist screamed at the woman who delivered newspapers for the neighborhood, threatening to “kill her” and “shoot her.” She left and found a Bensenville police officer she had seen previously at a nearby restaurant. That officer, Gerald Ragusin, reported to the scene; soon Officer James Kama also arrived.
Upon arriving, the officers found Palm-quist on the front lawn of his residence yelling in an incoherent manner about the Viet Cong, how he wanted the officers to “call his colonel,” and how a neighbor had killed his dog. He used profanity and repeatedly stated that he wanted to be left alone. Palm-quist brandished a 33/é-inch piece of rusty muffler pipe, with the clamps and bolts still connected to the end of the pipe, and a fan blade. Officer Ragusin began conversing with Palmquist, asking him to calm down and to drop the pipe. and fan blade. Officer Kania made the same requests, but was ignored. The officers pulled their guns from their holsters, and ordered Palmquist to drop the car parts. He refused, opened up both arms exposing his chest, and asked the officers to kill him.
A neighbor, Mr. Sanchez, then approached the officers and advised them that Palmquist had just woken him by shattering the driver’s door window of his car along with two windows of his home. Palmquist heard Sanchez’s statements, and said he smashed the windows because Sanchez had just killed Palmquist’s dog. Sanchez told the officers that Palmquist’s dog had been gone for over a year. Officer Ragusin asked Sanchez if he wanted to press charges against Palmquist for criminal damage to property. Overhearing this statement,. Palmquist offered to pay for the damage. Sanchez said he still wanted to press charges.
The officers then approached Palmquist and told him he was under arrest and he should drop the pipe. Once told he was under arrest, Palmquist began backing up. The officers advanced with their guns still drawn, and Palmquist retreated up the driveway while swinging at the officers with his pipe. The officers repeatedly told Palmquist to put the pipe down so they could “talk this thing out.” Palmquist repeatedly told the officers they “would have to kill him”, and pointed to his chest and said “you’ll have to shoot me right here ... there is no way you are going to put the cuffs on me.”
As Palmquist slowly retreated, Officer Ka-nia got close enough to use his flashlight to knock the fan blade out of Palmquist’s hand. In doing so, Officer Kania hit Palmquist in the forearm. Palmquist then swung the pipe again and struck Officer Kania in the shoulder. The microphone to his radio was knocked off and his shirt torn. Officer Kania suffered a bruise and a cut which did not require hospitalization. Despite being hit, Officer Kania holstered his gun to calm Palmquist down. Officer Ragusin kept his weapon out. Palmquist continued to retreat. This occurred five to seven minutes after the officers arrived at the scene.
After Palmquist hit Officer Kania with the pipe, Officer Ragusin radioed for assistance from the night commander, Sergeant Mark Selvik. Sergeant Selvik had monitored Officer Ragusin’s original report, and detected the agitation and urgency in Officer Ragu-sin’s voice in this second radio transmission. Sergeant Selvik ran to his patrol car, activat
As Sergeant Selvik exited his squad car, Officer Ragusin asked him via radio to bring a PR-24 baton. Selvik brought the baton with him, hidden behind his back, ready to be used. When Sergeant Selvik arrived, Palm-quist became more agitated. Sergeant Sel-vik, at 5'9" much shorter than Palmquist, found out that Mr. Sanchez wished to press charges against Palmquist, and repeatedly ordered Palmquist to put down the pipe and lie down on the ground. Palmquist ignored the warnings and continued to shout about the Viet Nam war, his colonel there, and “the FBI of the CIA.” Palmquist referred to Sergeant Selvik as a “Viet Cong colonel,” and repeatedly shouted that he “was not going to be taken alive” and the officers should kill him.
Sergeant Selvik then discarded the baton into a nearby bush and withdrew his service weapon, a 9 millimeter sidearm, from its holster. Palmquist stood a few feet from the side of a braiding. The three police officers surrounded Palmquist, preventing him from moving toward them or to either side. The officers stood 4 to 6 feet from Palmquist. Officer Ragusin then grabbed a nearby bicycle and lunged at Palmquist holding the bicycle in front of him trying to knock the pipe from Palmquist’s hands. But Ragusin slipped and fell. Palmquist turned towards Ragusin and swung the pipe at him. Ragu-sin managed to get out of the way.
At that point, Sergeant Selvik fired 2 or 3 shots into Palmquist’s thigh. Palmquist’s legs buckled, he fell toward the ground, and the pipe came down to the ground as well. Accounts vary from five seconds to a minute as to how long Palmquist was on the ground. Palmquist got up using the pipe as a prop, saying to Sergeant Selvik ‘You only winged me — you’ll have to kill me.” Palmquist then lifted the pipe over his head and swung it in the direction of Sergeant Selvik. Selvik first directed his fire towards Palmquist’s pipe-wielding arm, and continued to fire shots into Palmquist, finally directing his fire at Palm-quist’s “center mass.” Palmquist was struck repeatedly by bullets fired from Selvik’s weapon. Palmquist again fell to the driveway on his right side in the fetal position. When he attempted to raise up on his right forearm, Officer Kama kicked the pipe from his hand, and Officer Ragusin placed his hand on Palmquist’s shoulder and told him to stay down. Sergeant Selvik immediately radioed the dispatcher for an ambulance. As Sergeant Selvik moved away, he overheard Palmquist say “I’m not finished yet.” Other witnesses said Palmquist said “You finally gave me what I wanted” or “I hope this worked, I hope you shot me enough.” Sergeant Selvik had fired 17 shots at Palmquist; 11 drew blood. Palmquist died as a result of these wounds. The total time that elapsed from Sergeant Selvik’s arrival to the final shots was approximately five minutes. The parties do not dispute that Sergeant Selvik acted under color of state law during the incident.
Palmquist’s mother sued Sergeant Selvik and the Village of Bensenville claiming that Selvik used excessive force in seizing Palm-quist, as well as that the Village of Bensen-ville inadequately trained its police officers as to how to handle persons behaving abnormally. The parties stipulated that the magistrate judge could try this ease to judgment. A month-long jury trial limited to liability took place in October 1993. The jury heard conflicting accounts of the incident from 12
In our consideration of this appeal, we rely on the district court record as well as the parties’ submissions of briefs and appendices. Circuit Rule 28(d)(1) requires that in those briefs “[t]he statement of the facts relevant to the issues presented for review ... shall be a fair summary without argument or comment.” This description does not fit the statements of facts in defendants’ briefs. They do not mention numerous facts which supported the jury’s verdicts on plaintiffs claims, especially those surrounding the confrontation itseE Palmquist’s estate has moved to strike the defendants’ statements of facts as improperly argumentative, and cited numerous omissions of testimony favorable to plaintiff, as well as at least four instances where defendants did not “give the entire story” of the testimony. Parties must be called to task for these omissions and failures to denominate contested issues of fact on which they lost. See Avitia v. Metropolitan Club of Chicago,
II.
Sergeant Selvik seeks a reversal of the jury’s finding of excessive force and a new trial on that claim. He argues that in both the liability and damages phases of the trial the trial court improperly excluded evidence of a “death wish” by Palmquist which amounted to “suicide by police.” He also claims the court improperly excluded evidence of Palmquist’s alcohol and drug use and did not properly instruct the jury concerning the excessive force claim. The Village seeks a reversal on the ground that insufficient evidence supported the jury’s finding that the Village failed to properly train its police officers, and asks that we enter judgment as a matter of law on that claim.
A Exclusion of Palmquist’s Character Evidence
The central inquiry of this case is whether Sergeant Selvik used excessive force in stopping Palmquist the morning of April 23,1990. The Supreme Court has held that “[w]here, as here, an excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment,” Graham v. Connor,
1. Excluded Palmquist character evidence.
Shortly before 1 a.m. on the morning of Palmquist’s death, a police officer from the nearby Chicago suburb of Itasca spotted him
Palmquist returned to his Bensenville apartment, and, as one of his neighbors described, began to “howl at the moon.” He screamed at himself and his next-door neighbor, imitated the “Three Stooges,” talked to himself, and ranted about microwaves. Two neighbors testified he did this because “he wanted someone to call the police.”
Jeff Parsons, a friend of Palmquist’s, said that the day before he died, Palmquist told him he would provoke the police to kill him. When Parsons heard a radio broadcast of a shooting death, he told his wife “it must have been Palmquist,” even though the radio report did not give the deceased’s name. Parsons contacted the Bensenville police department to alert the officer who shot Palmquist that “he had a death wish.” Another friend of Palmquist’s, Ned Sigler, said that in the month before his death Palmquist’s drinking had worsened and that he was upset about his job as a mechanic. Sigler said that after Palmquist lost two jobs as a mechanic, he seemed depressed, and wanted “to die.” Si-gler described Palmquist’s drinking problem as “very serious.” After Palmquist’s death, Sigler called the DuPage County State’s Attorney’s Office to advise that he knew why Palmquist died. A third friend of Palm-quist’s, Fred Bernacchi, who played in a garage band with Palmquist, stated that Palm-quist started a “mental unraveling” about 6 months before he died, that Palmquist drank and smoked marijuana “all the time,” and that he was depressed he had no girlfriend. Bernacchi said that Palmquist was proud that despite his drinking he had never been caught for driving intoxicated, and that receiving the DUI ticket “may have been the last straw.”
Michael Nahra lived below Palmquist in a first-floor apartment. He stated that he had known Palmquist for about a year, and that roughly a month before Palmquist died he told Nahra that he wanted to be shot by the police. Nahra said Palmquist told him he could not “deal with the world,” he wanted to be a “hermit in the desert,” and he did not like his living or working conditions. Nahra said that the evening before and morning of the shooting he heard Palmquist yelling in his apartment, shouting obscenities, walking the perimeter of the property, and throwing junk. He also heard windows breaking at the residence next door. Nahra’s roommate, Charles Wolfe, who knew Palmquist for approximately 4 years, described Palmquist as a heavy drinker who appeared more depressed before his death. He said Palmquist became depressed recently about his dog’s death, even more so than when he had given the dog away a year earlier, and that Palm-quist said that Mr. Sanchez had killed the dog. Wolfe also was awakened by Palm-quist’s yelling and banging and the sound of breaking glass. Other neighbors would testify to substantially the same conduct by Palmquist in the early morning of April 23, 1990.
2. Magistrate judge’s rulings.
Initially, the magistrate judge granted in part and denied in part the plaintiffs motion to bar this character evidence about Palm-quist, relying on the general rule excluding such evidence, Fed.R.Evid. 404. His ruling allowed the introduction of evidence of Palm-quist’s arrest the previous evening for DUI and marijuana possession, but excluded other testimony about his use of drugs or alcohol. In another, broader ruling, the magistrate judge denied plaintiffs motion in limine to bar the defendants from introducing evidence as to Palmquist’s motive and intent. He ruled that they may present the “suicide by police” evidence as “first aggressor” evidence under Fed.R.Evid. 404(a)(2)-one of the exceptions to that rule’s prohibition against character evidence. The magistrate judge later clarified this order by stating that the
The plaintiffs counsel later moved to reconsider this ruling. Just before trial, the magistrate judge entertained oral argument on the motion and entered an order based on Sherrod v. Berry,
The defendants dispute this ruling. To them, this character evidence of Pabnquist’s “motive” and “intent” would allow them to present a self-defense claim, to demonstrate that Palmquist was attempting to commit “suicide by police,” and to show that Palm-quist’s conduct was the sole proximate cause of his being shot. The defendants wanted this evidence admitted to show that Palm-quist intended, even planned, the way he died.
S. Analysis.
“The appellant carries a heavy burden in challenging a trial court’s evidentiary rulings on appeal because a reviewing court gives special deference to the evidentiary rulings of the trial court.” Klonowski v. Int’l Armament Corp.,
Sherrod states the law in this circuit: when considering a charge of excessive force under the Fourth Amendment, evidence outside the time frame of the shooting is irrelevant and prejudicial. In Sherrod, a police officer approached a robbery suspect’s ear from behind. After the suspect made a quick movement toward his coat, the officer shot him dead.
Knowledge of facts and circumstances gained after the fact ... has no place in the ... jury’s post-hoc analysis of the reasonableness of the actor’s judgment. Were the rule otherwise, ... the jury would possess more information than the officer possessed when he made the crucial decision. Thus, we are convinced that the*1340 objective reasonableness standard ... requires that [the officer’s] liability be determined exclusively upon an examination and weighting of the information [the officer] possessed immediately prior to and at the very moment he fired the fatal shot. The reception of evidence or any information beyond that which [the officer] had and reasonably believed at the time he fired his revolver is improper, irrelevant and prejudicial to the determination of whether [the officer] acted reasonably ‘under the circumstances.’
Such evidence, together with evidence about [the decedent’s] specific actions in the past, would have overemphasized the likelihood that [the decedent] acted in a manner that justified the officers’ reaction.
Id. In Wallace,, we relied upon Rascon v. Hardiman,
The lesson of Rascón is the danger that a jury will conclude that a mentally deficient plaintiff, regardless of his actual behavior, somehow “asked for” mistreatment at the hands of the two policemen is greater than the value of such evidence to explain the police officers’ use of force.
The rule of Sherrod applies both ways. In the original opinion it excluded evidence which could have been damaging to Berry, the shooting officer. Here the exclusion arguably works against the police by rendering inadmissible one explanation for the events of April 23, 1990. The magistrate judge correctly relied on Sherrod and its circumscription of admissible evidence. The excluded evidence would have shifted the jury’s attention from Palmquist’s behavior at the scene, which is material in judging the objective reasonableness of Sergeant Selvik’s use of force, to information not possessed by Selvik, such as Palmquist’s mental state and his physical behavior before the encounter. As we ruled in Wallace and Rascón, evidence relating to the plaintiffs mental and emotional state and past actions is not admissible in judging the use of excessive force. Because the excluded evidence in this ease occurred outside the presence of the police, they had no personal knowledge of it.
In these circumstances, the magistrate judge properly applied the rule of Sherrod. Federal Rule of Evidence 404(a) precludes admission of evidence of a person’s character “for the purpose of proving action in conformity therewith on a particular occasion.” Subsection (a)(2) of that rule permits criminal defendants to offer evidence of their victim’s character. This exception expressly applies only to criminal eases. But certain courts have found that when the central issue involved in a civil case is by its nature criminal, the civil defendant may invoke the exception. See, e.g., Carson v. Polley,
Even if this evidence were admissible under Rule 404(a)(2), Rule 405 provides that character could be proved through evidence of specific instances only if his character was an essential element of the self-defense claim. The “death wish” evidence does not go to an essential element of Selvik’s self-defense claim, but is rather purely circumstantial. Ultimately, the evidence of Palm-quist’s desire to commit “suicide by police” does not tend to make the existence of any fact material to the “objective reasonableness” test more or less probable. Selvik knew nothing of this pre-existing condition and behavior when he first encountered Palmquist in the yard. Thus, these facts could not have entered into Selvik’s determination on whether or not to shoot or how many times. The jury needed to know what Selvik knew and saw when he fired the weapon. Hindsight should not have influenced the jury’s determination any more than it should have ratified Selvik’s response to the situation. Therefore, the district court did not abuse its discretion in excluding the evidence. At issue is the objective reasonableness of Selvik’s actions at the time of the seizure, see Lester v. City of Chicago,
Strongly buttressing this conclusion is the fact that Sergeant Selvik was allowed to present evidence of his experience and observations during the morning encounter. ■ This included Palmquist’s swinging the pipe at him, ignoring the officers’ warnings, and even asking the officers to shoot and kill him. The trial record contained Palmquist’s statement to the officers after he was shot that I hope this worked—this is what I wanted you to do.” The jury also heard Palmquist’s repeated statements that the police would have to shoot or kill him. Also admitted was extensive testimony from both sides’ expert witnesses concerning “suicide by police.” The jury heard one expert witness testify that this was “a classic case of suicide by police.” The defendants’ counsel in opening statement and closing argument referred to this case as “about suicide by police.” Although additional evidence may have confirmed this opinion, and the number and type of different factors the defendants wanted considered was not as complete as they would have liked, the jury clearly heard it. Further, the relatively modest amount of damages awarded the plaintiff implies the jury gave weight to this evidence. Because there was substantial evidence admitted with respect to this theory, further “character” evidence along this line would have been cumulative. See Holmes v. Elgin, Joliet & Eastern Ry. Co.,
The exclusion of the evidence that Palmquist was arrested the night before his death for driving under the influence and marijuana possession presents a closer question.- Consistent with Sherrod, the jury-heard testimony from three witnesses, including Sergeant Selvik, who observed Palm-quist during the incident and speculated he was intoxicated. Trial witnesses testified that Palmquist’s actions revealed directly and by reasonable inference that intoxicants affected his conduct at and before the shooting. The magistrate judge could have allowed in the pre-seizure evidence of intoxication and possession of marijuana, if not necessarily the arrest. See Saladino v. Winkler,
B. Damages Phase
The defendants assert that the magistrate judge exacerbated the mistake of not admitting evidence of Palmquist’s motive and intent by excluding this same evidence during the damages phase of the trial. This resulted in an unfair trial, they assert, as anticipation of allowing this evidence in during the damages phase was the reason for bifurcating the trial in the first place.
Unlike the analysis of admission of this character evidence during the liability phase, a more persuasive argument can be made for its admission during the damages phase. Evidence that Palmquist wanted the police to kill him is directly relevant to his life expectancy. Exclusion of this evidence could have had a highly prejudicial impact on the jury’s ultimate award to the plaintiff of $165,000. Indeed, the trial was bifurcated to reduce likelihood of this prejudice during the jury’s consideration of liability. Statements that Palmquist wanted to die certainly affected how long he would be expected to live, and thus what amount of money to award his mother and his estate.
Unfortunately for the defendants, they failed to fully argue this point. “Issues must be argued to be preserved.” Hunter v. Allis-Chalmers Corp., Engine Div.,
C. Jury Instructions
The defendants also claim they were denied a fair trial because the district court improperly instructed the jury on the excessive force claim. The key decision for the jury was whether Selvik acted reasonably under the circumstances that existed immediately before and at the moment he fired his weapon. Throughout the trial, defense counsel objected to the admission of evidence about “alternative” options or strategies the Bensenville police could have employed in the moments before Selvik shot Palmquist. They wished to expressly limit consideration of this evidence to the “lack of training” claim against the Village, and exclude it from consideration on the excessive force claim. The defendants claim error in the trial court’s failure to give such a limiting instruc
When defendants’ counsel promulgated the limiting instruction at issue, a lengthy colloquy ensued, and a decision was made not to instruct the jury then, but that an opportunity would be provided for such an instruction. At the close of evidence, the magistrate judge spoke with counsel twice regarding the instructions, but defendants’ counsel never renewed their request for this limiting instruction. Thus, the defendants waived their right to challenge the district court’s decision not to give the proposed limiting instruction. See Varhol v. Nat’l R.R. Passenger Corp.,
Perhaps the defendants could have challenged the underlying reasons given by the district court for giving or not giving certain instructions. But “[i]t is impossible to evaluate the challenge-sometimes impossible even to understand it—without knowing why the district court acted as it did.” In the Matter of Galvan,
Even if the defendants had not waived their objections to the instructions, we would conclude the district court accurately set out the law to be applied to the facts in this case. With regard to the central inquiry of this case, the trial court instructed the jury:
to determine whether Mark Selvik had a reasonable belief that deadly force- was necessary to prevent death or great bodily harm to himself or another when he fired his weapon initially at Paul Palmquist as well as when he fired it later.
This instruction tracks Graham v. Connor,
D. Inadequate Training Claim
The defendants’ final dispute on appeal is with the jury’s finding that the Village of Bensenville was deliberately indifferent to the training of its police officers. They argue that under the restrictive law of municipal liability under § 1983 for a constitutional omission such as “failure to train,” and given the evidence at trial, this claim should have been dismissed because it cannot be maintained under the controlling law. See Fed. R.Civ.P. 50(a)(1). A federal standard of review governs the determination of a motion for judgment as a matter of law. “We must view the evidence in the light most favorable to the nonmoving party and ascertain whether there exists ‘any evidence upon which a jury could reach a verdict for the party producing it, upon whom the onus of proof is imposed.’ In applying this standard, our review is de novo.” Deimer v. Cincinnati Sub-Zero Prods., Inc.,
Strict constraints limit municipal liability' under 42 U.S.C. § 1983. In Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S.
In City of Canton v. Harris,
Thus, “[a]n allegation of ‘failure to train’ is available only in limited circumstances.” Cornfield,
Only where a failure to train reflects a “deliberate”' or “conscious” choice by a municipality — a “pohcy” as defined by our prior cases — can a city be hable for such a failure under § 1983. Moneh’s rule that a city is not hable under § 1983 unless a municipal pohcy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as pohce officers, represents a pohcy for which the city is responsible____ [I]t may happen that in hght of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been dehberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a pohcy for which the city is responsible, and for which the city may be held hable if it causes injury.
Id. at 389-90,
In order to ensure that isolated instances of misconduct are not attributable to a generally adequate pohcy or training program, we require a high degree of culpability on the part of the policymaker. Coupled with a causation requirement, this standard ensures that the violation alleged is not too far removed from the pohcy or training challenged as inadequate. Taken together, these two considerations amount to a requirement that liability be based on a finding that the policymakers have actual or constructive notice that a particular omission that is likely to result in constitutional violations.
First, the estate had to show the Village failed to train its pohce officers in a relevant respect. The estate contends the jury could have concluded Bensenville provided no training in handhng abnormally behaving persons based on the testimony of the Village’s pohce chief at the time in question, Chief Toomey. He testified that Bensenville did not require its officers to be trained in
The Village’s training program cannot be deemed deficient so easily, however. In determining the adequacy of training, the focus must be on the program, not whether particular officers were adequately trained. City of Canton,
Even if Bensenville were somehow deficient in providing its officers proper police training, the estate had to demonstrate how the failure to provide specific training had a causal nexus with the claimed injury. “[F]or liability to attach ... the identified deficiency in the city’s training program must be closely related to the ultimate injury.” City of Canton,
“[T]he requisite causal connection between such a policy and the constitutional injuries complained of’ must be tighter than Clem-mons’ testimony. Leahy v. Board of Trustees of Comm. Coll. Dist. No. 508, Cook Cty. Ill.,
Nor did the estate provide any evidence that the officers’ training was a proximate cause to Palmquist’s death. When Sergeant Selvik fired 17 shots at Palmquist the morning of April 23, 1990, he acted alone — separately from the Village of Bensenville and the training it provided its police officers. No connection exists between decisions by municipal policymakers and Palmquist’s death. This causation requirement must be closely guarded. As the Court stated in City of Canton, any lesser standard of proof would permit § 1983 plaintiffs to interpose municipal liability on a defacto respondeat superior basis, proscribed since Monell.
Moreover, “[f]or the § 1983 failure in training to constitute actionable ‘policy,’ this failure to train must reflect deliberate or conscious choice.” Erwin,
In Hirsch v. Burke,
The single incident at issue in this case does not make a lack of training so obvious, and any inadequacy therein so likely to result in the violation of constitutional rights, that the Village elders can reasonably be said to have been deliberately indifferent to a purported need. We cannot conclude from the evidence at trial that the omission evidences ‘“a deliberate choice to follow a course of action ... from among various alternatives’ by city policymakers.” City of Canton,
III.
This case involved a hard-fought trial with numerous difficult issues. The defendants mounted a broad attack on appeal, but we conclude that the district court’s only reversible error was allowing the plaintiffs “failure to train” claim to go to the jury. Pursuant to City of Canton, the Village of Bensenville is entitled to judgment as a matter of law on that count.
The plaintiffs motion to strike defendants’ statements of facts in their principal and reply briefs as improperly argumentative and thus in violation of Circuit Rule 28(d)(1) is Granted. Pursuant to Sherrod v. Berry we Affirm the district court’s exclusion of Palm-quist’s character evidence, Affirm its exclusion of the alcohol and drug evidence as cumulative or as harmless error, Affirm the court’s instructions to the jury, and thus Affirm the jury’s liability finding for the plaintiff. We also Affirm the award of damages because of the defendants’ failure to provide sufficient argument for retrial on this issue. We Reverse the finding of municipal liability on the “failure to train” claim, and enter judgment for the defendants on that claim.
Affirmed In Part, Reversed In Part.
Notes
. The concurrence in part/dissent in part to this case disagrees that Palmquist's previous statements and behavior constitutes character evidence. Post at 33. This is an argument even the defendants have not made. Throughout this case, they have referred to this “death wish” evidence as a "pertinent character trait of a victim.” Indeed, the defendants’ central argument on appeal is that the jury should have been permitted to infer that Palmquist acted on this specific occasion in conformity with his possibly suicidal tendencies.
. Our colleague in his concurrence in part/dissent in part indicates that it is somehow contradictory to affirm the admission of this alcohol and drug evidence as well as the exclusion of the "death wish” evidence under Sherrod. Post at 33. Evidence was admitted in each of these two categories. Ultimately, it is the amount of the evidence, not its nature, that the defendants and our colleague dispute in each instance. For this reason we find no conflict in the magistrate judge’s rulings, much less that he abused his discretion in making them.
. Rather, the evidence demonstrated that Ben-senville did its best to secure proper training for its police officers. Indeed, Sergeant Selvik must qualify as one of the most highly trained officers on the street; his credentials outpaced even those of plaintiff's expert witness, James Clem-mons, an instructor at the Chicago Police Academy
. This is one factor among many distinguishing this case from Russo v. City of Cincinnati,
. We reject defendants’ request to "link” the excessive force and failure to train claims such that reversal of the latter requires a new trial on the former. Defendants dropped their request for a limiting instruction, as discussed supra at II.C., waiving the argument that evidence on the failure to train claim improperly affected the jury’s consideration of the excessive force allegation. Because the record evidence supporting the excessive force claim is strong, the “inconsistent with substantial justice” standard of Fed. R.Civ.P. 61 is not close to being satisfied in this case.
Concurrence in Part
concurring in part and dissenting in part.
I agree that the judgment against Sergeant Selvik must stand. I respectfully do not concur, however, with my colleagues that the jury in this ease was unreasonable as a matter of law in imposing liability on the Village of Bensenville.
1.
Although I concur with my colleagues’ disposition of the judgment against Sergeant Selvik, I respectfully disagree with their rationale with respect to the admission of pre-seizure evidence. The majority relies on Sherrod v. Berry,
Today the court applies Sherrod to make it more difficult for a police officer to defend himself against an excessive force claim. See generally Sherrod,
In my view, we need to adopt a more flexible approach to the admissibility of pre-seizure evidence, an approach that recognizes that some evidence may be so probative (and not unduly prejudicial) that it is permissible to admit it to prove the nature of the situation faced by the officer at the time the shot was fired. We need to leave this matter in the hands of the trial judiciary and allow it to make common-sense judgments as to the admissibility of this evidence. Indeed, in Sher-rod, as in this case, we were purportedly applying an abuse of discretion standard of review. Likewise, in Wallace v. Mulholland,
Although I differ with my colleagues on their rigid approach to this evidence, I never
2.
I respectfully part company from the majority insofar as it holds that liability cannot attach to the Village of Bensenville. Neither party, nor the majority, suggests that the instructions given to the jury misstated the law of municipal liability, as set forth in City of Canton v. Harris,
But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.
The majority instead undertakes to reweigh the evidence, citing testimony that basic police training includes a block of instruction on handling situations involving abnormal behavior. The jury had ample reason to reject this testimony and must have agreed with the plaintiffs expert that the officers’ training was inadequate. The majority also asserts that the jury could not have determined that Mr. Palmquist’s death was caused by the Village’s inadequate training, but the plaintiffs expert established a reasonable causal chain: The Village did not train on how to deal with irrational individuals, and the officers improperly dealt with the irrationally behaving Mr. Palmquist, thereby causing his death. Cf. Febus-Rodriguez v. Betancourt-Lebron,
Most importantly, “in light of the duties assigned to” Sergeant Selvik, Canton,
. In her brief, the plaintiff acknowledged that “Paul’s wish or desire to die is not part of [Mr. Palmquist’s] 'character.' " Appellee’s Br. at 25.
. Id. at 390 n. 10,
. The Chicago Police Department has had such training since at least 1977 and provides refresher courses on the subject to its officers.
. The majority faults the plaintiff for not calling into doubt the "actual training” provided by the Village or, phrased another way, the "training which had been received” by the officers. Ante, at 1345-46. In the process, my colleagues suggest that a plaintiff, who happens to find no problem in any of the training actually received by the officers, cannot prove "deficient” training by demonstrating that additional training should have been given in a particular area. Ante, at 1345-46. The Supreme Court, though, has said clearly that a deficiency in training can be proved by showing a need for "more or different training." Canton,