SORAIDA FLORES, a Personal Representative of the Estate of ERICA FLORES, deceased, Plaintiff-Appellant, v. CITY OF SOUTH BEND and JUSTIN GORNY, Defendants-Appellees.
No. 20-1603
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 28, 2020 — DECIDED MAY 12, 2021
Before RIPPLE, WOOD, and BRENNAN, Circuit Judges.
I
In the early hours of July 20, 2018, five South Bend officers (“the Hipakka team“) were assigned to an area in the northwest part of the city, which was considered to be a “hot spot.” Two of them—Zachary Alfrey and James Wagner—patrolled in an unmarked car that was not equipped with sirens or lights. One—Sergeant Ryan Hipakka—drove a fully marked police vehicle. The remaining two officers—Gregory Howard and Mollie O‘Blеnis—sat in an unmarked car that did have sirens and lights, though they were not in use. The two patrolling officers communicated through a tactical channel whenever they wanted assistance from the other three officers.
The events that led to Erica‘s death began when, around 4:30 am, Alfrey and Wagner radioed over the tactical channel that they had spotted a vehicle speeding in the patrol area and planned to stop it. The remaining three officers promрtly acknowledged the report. None of the members of the Hipakka team signaled at any point that the routine traffic
Enter Officer Gorny. After hearing the exchanges among the Hipakka team over the tactical channel and knowing from those exchanges that no one was asking for external assistance, Gorny (then two miles away from the Hipakka team) roared through a residential neighborhood at 78 miles per hour, in disregard of the 30 mile-per-hour speed limit. Gorny made infrequent use of his lights or sirens. Still in the residential area, he then turned onto Western Avenue and accelerated up to 98 miles per hour while intermittently activating and deactivating his lights and sirens. Gorny reached the intersection of Kaley and Western Avenues with an obstructed view of Kaley Avenue. Disregarding the red light, Gorny sped through the intersection and crashed into Erica Flores‘s car, which was proceeding lawfully on a green light, killing her.
II
Because we are considering a dismissal under
Flores challenges the district court‘s dismissal of her section 1983 claims against both defendants. We address her individual claim against Gorny first, and then her Monell claim against the City. We also briefly touch on Flores‘s challenge to the district court‘s denial of leave to amend the complaint.
A
A person seeking relief under section 1983 for a violation of her Fourteenth Amendment right to substantive due process faces a difficult task. She must plead sufficient facts to establish that the officer acted with “criminal recklessness—which is the same as deliberate indifference.” Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996) (quoting Archie v. City of Racine, 847 F.2d 1211, 1222 (7th Cir. 1988)); see also County of Sacramento v. Lewis, 523 U.S. 833, 839 (1998) (“deliberate indifference” or “reckless disregard“). Criminal recklessness in this context has long served as an effective proxy for intent, Hill, 93 F.3d at 421 (citing Wilson v. Williams, 83 F.3d 870, 875 (7th Cir. 1996)), but we do not demand “smoking gun” proof of actual intent. Cf.
The deliberate-indifference standard demands close attention to the particulars of the case. Identical behavior considered reasonable in an emergency situation might be criminally reckless when state actors have time to appreciate the effects of their actions. See Lewis, 523 U.S. at 850. This is why officers giving chase, who “are supposed to act decisively and to show restraint at the same moment,” have more latitude to balance these competing directives. Id. at 853. Officers re-
The key question is whether the officer “ha[d] sufficient knowledge of the danger” such that “one can infer he intended to inflict the resultant injury.” Id. In Hill, we confronted a case superficially similar to the one now before us. There, a police officer who was not responding to an emergency situation sped “well over the speed limit” through a red light and crashed into the decedent‘s car, killing him. Id. We concluded that this bare factual allegation allowed at most the inference that the officer created a “generic risk to the public at large” that “d[id] not rise to the threshold of a constitutional violation actionable under § 1983.” Id. at 421–22.
The district court found Hill dispositive and conсluded that Flores‘s complaint similarly failed to allege sufficient facts to permit the inference that Gorny subjectively knew of the danger he created and consciously disregarded it. Gorny‘s actions, the court thought, supported at most a reasonable inference that he created a generic risk to the general public through his reckless speeding and disregard of traffic signals. In our view, however, the facts alleged here go well beyond those in Hill, and the difference matters.
An officer who is nоt responding to an emergency can act so recklessly that a trier of fact would be entitled to find subjective knowledge of an unjustifiable risk to human life and conscious disregard of that risk. Our sister circuits have encountered similar factual allegations, and we find their opinions to be instructive. In Sauers v. Borough of Nesquehoing, 905 F.3d 711 (3d Cir. 2018), an officer observed a minor traffic offense and followed a car at 100 miles per hour, lost control of his car around a curve, spun out, and crashed into the plaintiff‘s car, injuring thе plaintiff and killing his wife. Id. at 715, 718. The Third Circuit held that these allegations supported an inference of deliberate indifference, because the officer had time to phone other officers along the violator‘s route and ask them to effect the traffic stop. In addition, the traffic violation was too minor to warrant the dramatic chase. See also Browder v. City of Albuquerque, 787 F.3d 1076, 1081 (10th Cir. 2015) (finding that an off-duty officer driving home at an average of 66 miles per hour over an 8.8-mile stretch through ten intersections bеfore running through a red light and crashing into the plaintiff‘s car operated with “conscious contempt of the lives of others and thus a form of reckless indifference“).
Here, Gorny‘s reckless conduct, unjustified by any emergency or even an order to assist in a routine traffic stop that five officers had under control, allows the inference that he subjectively knew about the risk he created and consciously disregarded it. Unlike the minimally detailed complaint in Hill, which again was limited to an accusation of speeding, the complaint here paints a far more troubling picture. Gorny, who was not assigned to the hot-spot area, overheard Hipakka, Howard, and O‘Blenis communicate their assent to Alfrey and Wagner‘s request for assistance specifically from the other members of their team. At no point did Gorny hear any officer indicate that he or she needed external back-up or that the traffic stop presented an emergenсy. With no justification, Gorny chose to race through a residential area with a posted speed limit of 30 miles per hour at rates of speed between 78 and 98 miles per hour, two-to-three times the limit.
The defendants counter that Gorny could not have known that he created an imminent risk of fatal injury if he had an obstructed view of oncoming traffic. But the law does not require perfect knowledge on his part: criminal recklessness is enough, and driving blind through an intersection at 78 to 98 miles per hour could certainly be viewed by a jury as meeting that standard. The law does not provide a shield against constitutional violations for state actors who consciously take extreme and obvious risks. Through his course of action, Gorny was “willing to let a fatal collision occur.” Hill, 93 F.3d at 421. Moreover, Gorny‘s actions well before he entered the intersection could be seen as criminally reckless. (He did not go from zero to 80 miles per hour from a standstill.) We have cautioned against “reading [] classifications too rigidly, noting that ‘[d]eliberate indifference, in fact, is merely the mаnifestation in certain situations of a more general inquiry, which is whether the government conduct at issue shocks the conscience.‘” Bublitz v. Cottey, 327 F.3d 485, 490 (7th Cir. 2003) (quoting Schaefer v. Goch, 153 F.3d 793, 797 (7th Cir. 1998)). A jury could find that Gorny‘s actions meet this standard.
B
This brings us to Flores‘s suit against the City of South Bend. She may move forward against the City only if her alle-
The district court dismissed Flores‘s Monell claim against the City of South Bend because it found no underlying constitutional violation by Officer Gorny. Since we are reversing on that point, however, it is appropriate to take a fresh look at Flores‘s Monell claim, too.
We begin with an overview of the law in this area. Flores proposes to show that the City itself violated her rights by failing to train its police to refrain from reckless driving. The Supreme Court recognized the failure-to-train theory in City of Canton v. Harris, 489 U.S. 378, 388 (1989). Acknowledging that the courts of appeals universally recognized that “a municipality‘s failure tо train employees can [] be a basis for § 1983 liability,” but also that liability depends on deliberate indifference, the Court in Harris focused on the degree of fault that is required to support liability on this basis. Id. It concluded that failure-to-train liability is appropriate only when inadequate training “amounts to deliberate indifference to the rights of persons with whom the [employee] come into contact.” Id. In effect, by failing to train an employee whose conduct the municipality knоws to be deliberately indifferent to the public, the municipality itself demonstrates deliberate indifference to that known risk.
Since Harris, the Court consistently has reaffirmed that this form of liability remains available for plaintiffs who can meet Harris‘s strict threshold showing. Just under a decade after
Even as the Court has underscored that failure-to-train liability is rare, it has never wavered from the position that this theory remains valid. Most recently in Connick v. Thompson, 563 U.S. 51 (2011), it recognized that a municipality‘s “decision not to train certain employees,” despite actual or constructive notice that their actions constitute deliberate indifference to the rights of the public with whom they come into contact, is the “functional equivalent of a decision by the city itself to violate the Constitution.” Id. at 61 (internal quotations omitted).
Notably, failure-to-train liability does not require proof of widespread constitutional violations before that failure becomes actionable; a single violation can suffice where a violation occurs and the plaintiff asserts a recurring, obvious risk. As the Court put it in Brown, “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 for such a violation, could trigger municipal liability.” Id. at 409; see also Connick, 563 U.S. at 64 (“[We] sought not to foreclose the possibility, however rare,
Applying these principlеs, we have upheld failure-to-train allegations on at least two occasions. Sitting en banc in J.K.J. v. Polk County, 960 F.3d 367 (7th Cir. 2020), we addressed a case in which two former inmates in the Polk County Jail sued the County for failing adequately to train male guards to prevent their sexual abuse of female inmates. Id. at 678–79. The County‘s training was limited to informing guards that the jail prohibited sexual contact with inmates and holding a single training session that some officers, including the offender in the case, did not attend. Id. at 379. We found that these allegations sufficed to support failure-to-train liability. Id. So too in Woodward v. Correctional Medical Services of Illinois, Inc., 368 F.3d 917 (7th Cir. 2004), we held that a correctional facility‘s failure to train its employees on suicide prevention (among other shortcomings), resulting in the death of an inmate, supported Monell liability. Id. at 927–29. We reached this conclusion even though the plaintiff could not prove that any other inmates had lost their lives because of this failure to train, because the prison did not “get a one free suicide pass.” Id. at 929 (internal quotation marks omitted).
We realize that the Supreme Court has yet to issue an opinion in which it upholds liability on this ground, but we take the Court at its word that this does not mean it has disapproved the theory. At least one of our sister circuits has upheld Monell liability under a failure-to-train theory, and others have found allegations to be sufficient to survive summary judgment or a motion to dismiss, without any sign of disapproval from the Supreme Court. See Ouza v. City of Dearborn Heights, 969 F.3d 265, 289 (6th Cir. 2020) (failure to train ar-
With this background in mind, we turn back to Flores‘s case. The complaint asserts that the City failed to train Gorny not to drive recklessly, in the face of actual knowledge that both Gorny himself and South Bend police officers generally had a history of reckless speeding. It alsо asserts that the City has a de facto policy of encouraging such behavior. South Bend officers working the night shift, Flores contends, frequently drive above 50 miles per hour, well above posted limits. In addition, she alleges that on at least three occasions before Erica Flores‘s death, Gorny operated his vehicle at high rates of speed (70 mph, 114 mph, and 60 mph). Yet, despite telling its officers to operate their vehicles only up to a maximum of 50 miles per hour, South Bend never reprimanded anyone for noncompliance with its policies, nor did it require additional training for those who disregarded its guidance.
Flores argues that this is enough to support Monell liability under both a theory of failure to train and a theory that the City had a de facto policy of encouraging or permitting excessively fast driving. Taking the latter point first, we do not see
But the failure-to-train theory is another matter. Stressing that we are still at the pleading stage, we conclude that Flores‘s complaint plausibly alleges that the City acted with deliberate indifferencе by failing to address the known recklessness of its police officers as a group and Gorny in particular. Looking at Gorny first, the complaint asserts that on at least three prior occasions, Gorny drove in the dark of night at extreme speeds (from 60 to 114 mph), well above the posted limits of 30 miles per hour, and even above the alleged 50 mile-per-hour policy limit. The City knew that its officers routinely drove over 50 miles per hour, but it took no steps to prevent this behavior—no trаining, no discipline, no reprimands.
A municipality can be held liable under a theory of failure to train if it has actual knowledge of a pattern of criminally reckless conduct and there is an obvious need to provide training to avert harm, even if the prior acts have yet to result in tragedy. See Harris, 489 U.S. at 390 n.10; J.K.J., 960 F.3d at 380. The City urges us to dismiss Flores‘s claim because (fortunately) Gorny never killed anyone before he took Erica Flores‘s life. But this is not a “one-free-bite” situation. The law
C
We turn finally to Flores‘s challenge to the district court‘s denial of leave to amend the complaint. We review such a ruling only for abuse of discretion. Foster v. DeLuca, 545 F.3d 582, 583 (7th Cir. 2008) (citing Indiana Funeral Dirs. Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir. 2003)). Generally, we expect that the district court will grant leave to amend when a complaint is challenged at such an early stage.
III
Accepting the facts as alleged in the complaint for present purposes, Officer Gorny‘s conduct in this matter reflected deliberate indifference to the obvious risk he created when he sped through residential areas and launched himself through an intersection, against the light, without thе ability to see or
SORAIDA FLORES, a Personal Representative of the Estate of ERICA FLORES, deceased, Plaintiff-Appellant, v. CITY OF SOUTH BEND and JUSTIN GORNY, Defendants-Appellees.
No. 20-1603
United States Court of Appeals For the Seventh Circuit
The majority opinion states that a municipality can be liable for failure to train under the single-incident theory “if it has actual knowledge of a pattern of criminally reckless conduct and there is an obvious need to provide training to avert harm, even if the prior acts have yet to result in tragedy.” Majority Op. at 13 (citing City of Canton v. Harris, 489 U.S. 378, 390 n. 10 (1989), and J.K.J. v. Polk Cnty., 960 F.3d 367, 380 (7th Cir. 2020)).
Although this statement is not incorrect, I do not know that it fully captures the complexity of Monell jurisprudence in this area. To establish single-incident liability, a plaintiff must prove that municipal policymakers know that its employees will confront a given situation and not train for it, Canton, 489 U.S. at 390 n.10, and the need for training must be obvious without consideration of prior violations. See Connick v. Thompson, 563 U.S. 51, 63 n.7 (2011); see also Bd. of Comm‘rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997) (noting that under the single-incident theory, the question is whether the risk is obvious in the abstract). But there is more. The single-incident theory is reserved for the “narrow” circumstance when a municipality fails to train its employees, who “have no knowledge at all of the constitutional limits” that govern their conduct in situations they are certain to encounter. Connick, 563 U.S. at 64, 67. This remains true even though there is
Liability for failure to train under the single-incident theory remains “rare.” See id. (explaining that singlе-incident liability applies only to a “narrow range” of circumstances). The majority opinion states: “At least one of our sister circuits has upheld Monell liability under a failure-to-train theory, and others have found allegations to be sufficient to survive summary judgment or a motion to dismiss, without any sign of disapproval from the Supreme Court.” This sentence, which is followed by citations to a number of decisions, could be overread to suggest that liability under this theory is widely endorsed. But of those decisions, only the D.C. Circuit in Parker v. District of Columbia, 850 F.2d 708 (D.C. Cir. 1988)—a case that predates Connick, Bryan County, and Canton—upheld failure-to-train liability. In Smith v. District of Columbia, 413 F.3d 86, 98–99 (D.C. Cir. 2005), the D.C. Circuit only analogized the municipality‘s lack of monitoring standards to a failure-to-train claim. And in Newton v. City of New York, 779 F.3d 140, 153 n.11 (2d Cir. 2015), the Second Circuit only contemplated a failure-to-train claim because the plaintiff did not pursue the case on that theory. The remaining decisions concern allegations sufficient to survive a dispositive motion.
I write separately only so courts and litigants in the future recall the intricacies of Monell jurisprudence and do not misread precedent in this area. I agree with the majority opinion‘s resolution of this case, and I respectfully concur.