MEMORANDUM
Officer Yolaina Washington-Pope’s harrowing ordeal raises the question of whether an on-duty, in-uniform police officer, who raises his service weapon to his partner’s temple as their exchange of words in their police cruiser rapidly escalates, acts under color of state law for purposes of 42 U.S.C. § 1983. Although the facts of this case and Ms. Washington-Pope’s experiences are doubtlessly distressing, the Third Circuit Court of Appeals’ precedent, the acknowledged purposes of § 1983, and more analogous case law from other courts constrain this Court to answer that question in the negative. This case serves as a sobering reminder that federal law does not provide a remedy for every wrong or even every horrifying injury.
Because Officer Washington-Pope’s ex-partner and now — Defendant Officer William Bailey did not act under color of state law when he drew his gun on her, as discussed in greater detail below, the Court grants his Motion for Summary Judgment and dismisses the claims against him with prejudice. The Court also denies the City of Philadelphia’s Motion to Dismiss, with prejudice only as to the City’s argument concerning independent municipal liability raised in Section C of the its Memorandum.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to Federal Rule of Civil Procedure 56, the Court canvasses the material facts and construes all reasonable inferences from them in favor of Plaintiff Ms. Washington-Pope, the nonmovant. As a result, the operative facts for present purposes are as follows.
After concluding their second assignment without incident, the officers began cruising toward their third. But Officer Bailey drove in the wrong direction and began slowing down before speeding back up while looking in the side-view mirror. He then stopped the car, put it in reverse, and slowly backed up. When Officer Washington-Pope asked him what he saw, he claimed that the “car behind us is following me. Every time I slow down they slow down and every time I speed up they speed up; look at them, they are backing up like me.” Officer Bailey turned the police cruiser around and the vehicle behind them continued down the street away from them.
At about this point, Officer Washington-Pope remembered a conversation she had had with another officer about a time that Officer Bailey had reportedly behaved oddly. According to the other officer, Officer Bailey had refused to get out of his police car after a tour of duty until a lieutenant approached him, at which point Officer Bailey sprang from the vehicle and ran around the parking lot, pursued by other officers. According to her deposition testimony, Officer Washington-Pope did not know, on the night of September 24, 2010, whether Officer Bailey’s strange behavior had occurred because he had diabetes or he was otherwise ill.
With this hazy hearsay story in mind on September 24, 2010, Officer Washington-Pope turned to Mr. Bailey and asked him whether he had taken his medication. He responded, “And what medication would that be?” She retorted, sarcastically, “Your psychotic meds,” and then, ‘Tour sugar medication.”
“No, I did not,” he responded, while pointing his finger at her. By now, Officer Bailey was again driving past the address of their third assignment, and at some point Officer Washington-Pope told him to turn around. Officer Bailey said, “Why would you ask me that?”
“Because you’re f — ing tripping,” said Officer Washington-Pope.
Officer Bailey: ‘Tou got a problem with me?”
Officer Washington-Pope: “Yeah, you’re f — ing tripping.”
Officer Bailey, pulling up to the corner and about to make a left: “Say it again.” He unsnapped his holster.
Officer Washington-Pope, not looking at Officer Bailey, but rather down at the paperwork she was writing: “You’re f— ing tripping.”
Officer Bailey put his service weapon in his lap and, turning the corner towards the address of their third assignment, said, “I bet you won’t say it again.” Turning to face him, Officer Washington-Pope stared into the barrel of Officer Bailey’s gun and saw his “cold,” “mean look.”
The words, “You’re f — ing tripping,” were again at the tip of her tongue, but something clicked in her mind at that moment, and she realized it was time for her to “stop playing.” She remembered then that it was not unusual for Officer Bailey to tаke things too far or handle matters
Thinking she might escape from the car, Officer Washington-Pope tried the door handle, but she could not release the lock. She thought she might draw her own gun, but because of her vest and position she thought the effort would be futile. She considered tasing Officer Bailey, but worried that even if she could, his muscles might involuntarily tense and his finger, flinching, pull the trigger. So she exercised the one option she thought she had left.
“Bailey, you really gonna point a gun at me, really?” Officer Bailey said nothing. “Bailey, you really going to shoot me? Is that what you’re going to do?” He still said nothing. She repeated the words, which he met with silence and what Officer Washington-Pope described as an empty, menacing stare.
And then, although Officer Washington-Pope did not say how much time passed, Officer Bailey holstered the gun and asked, “Now, what now?”
The two continued on to their next assignment.
* * *
The early morning’s events of September 24, 2010, had not yet drawn to a close. Officer Washington-Pope attempted to get into the driver’s seat or, barring that, to convince Officer Bailey to drive back to headquarters so she could deal with what had happened. At first he refused and instead took off after a driver who he had seen run a red light and who turned out to be under the influence. According to Officer Washington-Pope, Officer Bailey behaved oddly toward the suspect, but soon Officer Washington-Pope was finally able to prevail on him to drive back to headquarters. After they arrived, Officer Bailey began hitting his vest and arguing with it, and only by convincing him that she was helping to fix his vest was Officer Washington-Pope able to disarm him. Then she drove him to the hospital.
Mr. Bailey has had type I diabetes since he was nine years old, and has experienced hypoglycemic episodes that, according to the parties’ experts, can lead to odd behavior. The parties, through their experts, dispute whether Officer Bailey was experiencing such an event at the moment he drew his gun on Officer Washington-Pope, as well as whether, if he was, he could have formed, and did form, the intent to do so. Mr. Bailey also claims that he does not remember drawing his gun on Ms. Washington-Pope, although she contends that he does.
Ms. Washington-Pope sued Mr. Bailey and the City of Philadelphia under 42 U.S.C. § 1988. In the first count of her First Amended Complaint, Ms. Washington-Pope alleged that Officer Bailey had violated her rights under the Fourth, Fifth, and Fourteenth Amendments to the Constitution by unlawfully and unreasonably seizing her at gunpoint and causing her significant mental anguish and emotional distress, as well as medical expenses, loss of future earnings, and other injuries. In the second count, she alleged that the City, knowing of Officer Bailey’s diabetes and his violent tendencies, also knew that Ms. Washington-Pope was at risk of being assaulted by him. She contends that the City was deliberately indifferent to the conduct of Officer Bailey as well as other police officers with regard to their responsibility to supervise Officer Bailey, who was not physically or mentally fit to serve as a Philadelphia Police Officer. Because Officer Bailey violated her rights to liberty, bodily integrity, and freedom from unreasonable search and seizure, Ms.
After he moved for and received an extension of time to file his Answer, Mr. Bailey instead moved for summary judgment. The City answered on October 15, 2012. Ms. Washington-Pope responded to Mr. Bailey’s Motion for Summary Judgment and, following an initial prétrial conference, the Court denied Mr. Bailey’s Motion for Summary Judgment in order to give the parties time to conduct discovery. The Court ordered that the deadlines then set “pertain[ed only] to discovery and briefing related to the issues discussed in Mr. Bailey’s Motion for Summary Judgment” (Docket No. 12 at 1 n. 1).
After several months of discovery, Mr. Bailey again moved for summary judgment. The City followed his lead and also moved for summary judgment. Ms. Washington-Pope responded separately to Mr. Bailey’s second Motion for Summary Judgment and to the City’s. In her response to the City, Ms. Washington-Pope explained that because discovery under the Court’s prior order “was limited to claims only against Defendant, Officer Bailey, Plaintiff was surprised when Defendant, City of Philadelphia, filed a Motion for Summary Judgment three days after Defendant, Officer Bailey, filed his second motion.” Washington-Pope-City Mem. at 4 (Docket No. 19). Her counsel contacted the City’s counsel, who sent a letter to the Court, rеquesting that the Court consider only Section C of its Motion. Consequently, Ms. Washington Pope’s response here addresses only the City’s Section C argument, namely, that municipal liability depends on a violation of a plaintiffs constitutional rights such that “[i]f this honorable court dismisses Plaintiffs claims against Officer [Bailey] then the claims against the City of Philadelphia must also be dismissed.” City Mem. at 20-21 (Docket No. 17). Accordingly, as to the City, the Court will consider only Section C of the City’s Motion for Summary Judgment.
II. STANDARD OF REVIEW
Upon motion of a party, summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment should be granted only if the moving party persuades the district court that “there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party.” Miller v. Ind. Hosp.,
In evaluating a summary judgment motion, a court “must view the facts in the light most favorable to the non-moving party,” and make every reasonable inference in that party’s favor. Hugh v. Butler Cnty. Family YMCA,
III. DISCUSSION
The two motions for summary judgment raise separate issues. First, Officer Bailey contends that Officer Washington-Pope’s § 1983 claim against him should be defeated for several reasons. He argues that (a) he was not acting under color of law when he pointed his gun at Officer Washington-Pope’s head, Bailey Mem. at 3-7 (Docket No. 16); (b) in the alternative, he did not act intentionally and so could not have “seized” Officer Washington-Pope under the meaning of the Fourth Amendment, id. at 7-14; (c) that Officer Washington-Pope’s Fourteenth Amendment substantive due process claim must be dismissed because the case must be analyzed under the Fourth Amendment, id. at 14; (d) Officer Washington-Pope’s Fifth Amendment claim must be dismissed because the Fifth Amendment pertains only to federal actors, id. at 14; and (e) Officer Bailey is entitled to qualified immunity, id. at 15. Because the Court holds that Officer Bailey was not acting under color of law when he pointed his gun at Officer Washington-Pope’s head, the Court need not consider his remaining arguments, and summary judgment in favor of Officer Bailey is appropriate.
Second, the City of Philadelphia raises the contingent argument that “[i]f this honorable court dismisses Plaintiffs claims against Officer [Bailey] then the claims against the City of Philadelphia must also be dismissed” because municipal liability depends on an individual officer’s violation of a plaintiffs constitutional rights. City Mem. at 20-21. Although that reasoning has an aura of logic, in the Third Circuit independent municipal liability may stand under Fagan v. City of Vineland,
A. The Claims Against Officer Bailey: No Action Under Color of Law
Ms. Washington-Pope brings her suit under 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
42 U.S.C. § 1983. “It is for violations of such constitutional and statutory rights that 42 U.S.C. § 1983 authorizes redress; that section is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.”
Second, she must “show that the alleged deprivation was committed by a person acting under color of state law.” West,
Thus, “[t]he ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the State?’ ” Rendell-Baker,
The “fair attribution” question, in turn, has two components.
First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or becаuse his conduct is otherwise chargeable to the State. Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.
Lugar,
Often, when a state or local employee acts in his official capacity, he will be found to have done so under color of state law. West,
It is also “firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State.” Id. at 49-50,
[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it. If ... the statute was designed to embrace only аction which the State in fact authorized, the words “under color of any law” were hardly apt words to express the idea.
Screws v. United States,
The limiting principle, however, is that “under ‘color’ of law means under ‘pretense’ of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded.” Id. While an off-duty sheriff working as a private security guard but wearing his official uniform and displaying his badge acts under color of law when he excludes a plaintiff from a park and then arrests him for criminal trespass on account of race acts under color of law, see Griffin v. Maryland,
Following the Supreme Court’s guidance in Griffin v. Maryland,
Such factors often deemed relevant but not' per se determinative include: whether the defendant officer was on duty, West,
But “[w]hile certain factors will clearly be relevant” in any given case — “for example, a police officer’s garb, an officer’s duty status, the officer’s use of a service revolver, and the location of the incident — these factors must not be assessed mechanically.” Barreto-Rivera v. Medina-Vargas,
As the First Circuit Court of Appeals has explained in Martinez v. Colon, the leading case for “under color of law” analysis of police-on-police altercations, special circumstances, not unlike many of those applicable here, need to be carefully considered:
[N]ot every action undertaken by a person who happens to be a police officer is attributable to the state. Though “under ‘color’ of law means under ‘pretense’ of law,” even so, the acts of state officials “in the ambit of their personal pursuits” are not state action. Screws,325 U.S. at 111 ,65 S.Ct. 1031 ; see also Gibson [v. City of Chicago ], 910 F.2d [1510,] 1518 [(7th Cir.1990)]. Accordingly, a policeman’s private conduct, outside the line of duty and unaided by any indicia of actual or ostensible state authority, is not conduct occurring under color of state law. See Barna v. City of Perth Amboy,42 F.3d 809 , 816 (3d Cir.1994); United States v. Tarpley,945 F.2d 806 , 809 (5th Cir.1991); Dang Vang v. Vang Xiong X. Toyed,944 F.2d 476 , 479 (9th Cir.1991); Murphy v. Chi. Transit Auth.,638 F.Supp. 464 , 467 (N.D.Ill.1986); Johnson v. Hackett,284 F.Supp. 933 , 937 (E.D.Pa.1968). Even though “acting under color of law” includes “acting under pretense of law” for purposes of a state action analysis, there can be no pretense if the challenged conduct is not related in some meaningful way either to the officer’s governmental status or to the performance of his duties.
Martinez,
The Third Circuit Court of Appeals is in agreement. More recently, it has instructed that “[t]o determine whether a police officer acted under the color of state law, the facts and circumstances of the police officer’s role ... must be examined in
1. Third Circuit Case Law
In Barna v. City of Perth Amboy,
Then, returning to their truck, the officers “attempted to leave the scene,” but “Mr. Barna, fearing for his wife’s safety, retrieved an unloaded revolver from the house” and pointed it at the officers until his wife told him to stand down. Once the gun was no longer pointed at them, the officers alighted from the truck and drew on Mr. Barna, who fell backwards and flung his own gun into a hedge before running into his house and returning with a shotgun, telling the officers not to leave, and then retreating again into his home. The officers called for backup, and the on-duty officers who arrived at the scene arrested Mrs. Barna and, after an escalating and protracted hostage negotiation, convinced Mr. Barna to surrender voluntarily. Mr. and Mrs. Barna subsequently sued Officers Otterbine and Echevarria for violation of their civil rights under § 1983. Id. at 814.
The Third Circuit Court of Appeals began by dividing the events into discrete episodes for purposes of analysis. From the officers’ following the Barnas home through the scuffle involving the nightstick, the issue raised by the Barnas’ § 1983 assault-based claim was whether the officers had acted under color of law. Once Mr. Barna drew a gun on the officers, the Court explained, it was clear that they were so acting. The issue, then, was whether the officers had acted constitu
With regard to the initial assault-based claim, the Third Circuit-Court of Appeals began by describing the general principles from Supreme Court precedent, as outlined above. It distinguished between action outside the scope of an officer’s actual authority,, but which nonetheless is under color of law because it is under pretense of law — that is, because the officer “purports to act according to official power,” Barna,
Indeed, the Bama Court reasoned, “the evidence indicates that the underlying nature of their dispute was personal.” Id. Not only were Officers Otterbine and Echevarria off-duty at the time of the altercation — a factor that “is not dispositive” — “there was no evidence to indicate that the officers were on official police business.” Id. Not only were they outside of their official jurisdiction, but they also “had not been called to the scene to conduct official police business, nor were they in pursuit of Mr. Barna on the belief that he had already committed a crime.” Id. They were not trying to arrest Mr. Barna, as their attempt to leave after the alleged assault demonstrated, id. at 817-18, and they “did not identify themselves as police officers ... or otherwise invoke their police authority,” id. at 818. In these ways, the case before the Bama Court was “unlike that in Black v. Stephens,
Still, the Bama Court did not simply cast aside the “arguable connections between the officers’ alleged assault of Mr. Barna and the use of police authority.” Id. These connections were
' (1) Echevarria’s comment, “I’ll show you jurisdiction,” made in response to Mr. Barna’s statement that the officers were out of their jurisdiction, and (2) evidence that Echevarria used a state-issue “PR-24” nightstick to hold Mr. Barna during the assault — a weapon that Officer Echevarria could only legally carry in Nеw Jersey because of his position as a police officer.
Id. With respect to the jurisdiction comment, however, the Bama Court reasoned that the comment was “too ambiguous to be of significant value on the issue of state authority” and observed that “the officers were in fact out of their police jurisdiction.” Id.; cf. Parrilla-Burgos,
Further, the Bama Court opined that the officers’ “use of a police-issue nightstick is undoubtedly the Barna’s strongest support for the view that the officers were acting under color of state law.” Barna,
To hold otherwise would create a federal cause of action out of any unauthorized use of a police-issue weapon, without regard to whether there are any additional circumstances to indicate that the officer was exercising actual or purported police authority. We do not understand the under color requirement of § 1983 to be satisfied by such a tenuous connection to state authority. See Bonsignore v. City of New York,683 F.2d 635 (2d Cir.1982) (holding that officer who used police handgun to shoot his wife and then commit suicide did not act under color of state law even though he was required to carry the police gun at all times); cf. Rivera v. La Porte,896 F.2d 691 (2d Cir.1990) (finding assault occurred under color of state law when officer used service revolver to beat plaintiff and then arrested plaintiff for events giving rise to the assault).
Barna,
Several years later, in Bonenberger v. Plymouth Township,
So apparent was this supervisory dynamic to the Bonenberger Court that it laid down an unequivocal and arguably categorical rule: “If a state entity places an official in the position of supervising a lesser-ranking employee and empowers him or her to give orders which the subordinate may not disobey without fear of formal reprisal, that official wields sufficient authority to satisfy the color of law requirement of 42 U.S.C. § 1983.”
Of course, neither the Bonenberger Court nor any other, to this Court’s knowledge, has purported to lay down the opposite categorical rule, viz., that § 1983 liability will not stand between coworkers (say, police officers) of equal rank; there is no “general rule of section 1983 non-liability for co-employee harassment.” Anthony v. County of Sacramento,
The complaint depicts a work environment made racially and sexually hostile by related attacks on plaintiff individually on the abilities of African-American law enforcement personnel generally, and on inmates of color. The consistent theme linking these forms of abuse is that of African-American inferiority and criminality, in the context of law enforcement effectiveness.
Under Bama and Bonenberger, the two main cases upon which Ms. Washington-Pope seeks to rely, much of the work of explicating the “under color of law” analysis regarding police officers belongs to the district courts. Although “[t]he concepts of acting ‘under color of state law" and acting ‘within the scope of employment’ while comparable are not the same,”- Hickenbottom v. Nassan, No. 03-223,
Further, while courts in this Circuit do “not suggest[ ] that the mere fact that [a police officer’s] conduct was motivated by personal revenge compels a finding that he was not acting under color of state law,” Galliano v. Borough of Seaside Heights, No. 03-1463,
2. Martinez v. Colon, the First Circuit Court of Appeals’ Decision Regarding Police-on-Police Altercations, its Progeny, and Their Consistency with the Principles and Reasoning in the Third Circuit and Others
The Third Circuit Court of Appeals has not yet addressed the question closest to the one in this case: How does a court conduct the specific analysis of whether violence between two police officers working together is private or under color of law? The stage was set for the answer to this question to be played out in Martinez v. Colon,
In Martinez, the First Circuit Court of Appeals affirmed the district court’s entry of summary judgment in favor of the de
Soon thereafter, Valentin reappeared, pointed his revolver at Martinez’ genitals, cocked the hammer, and, with his finger on the trigger, threatened to “blow away” Martinez’ penis (asking him, somewhat rhetorically, if he was scared). When Valentin lowered the weapon, Martinez immediately moved away from him. Within minutes Valentin again approached Martinez, cocked the revolver, aimed it at Martinez’ groin, and resumed his taunting. The revolver accidentally discharged, maiming Martinez.
Id.
The Martinez Court began its “under color of law” analysis, consistent with Barna, by observing that determining whether an officer acted under color of state law “rarely depends on any single, easily determinable fact, such as a policeman’s garb” and that misuse of or action in excess of аuthority is action under color of law. Id. at 986. “[Cjourts must beware simplistic solutions .... The point is that segregating private action from state action calls for a more sophisticated analysis.” Id. Rather than relying on a wooden application of factors, the inquiry “turns on the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.” Id. It is not enough that the officer’s position is a but-for enabler of his action.
Of course, the devil is in the details. The Martinez Court concluded that rather than exercising or purporting to exercise any “real or pretended” power under state law, Officer “Valentin was bent on a singularly personal frolic: tormenting an acquaintance.” Id. at 987. “Hazing of this sort, though reprehensible” the Court of Appeals concluded, “is not action under color or pretense of law.” Id. True, Officer Martinez was on duty and in uniform, the events transpired at the police station, and Valentin shot Martinez with his service revolver. But viewed, as they must be, in context, these facts still did not indicate that “Valentin’s actions were in any meaningful way related either to his official status or to the performance of his police duties.” Id. (analogizing to Delcambre,
Martinez is especially important for cases like Ms. Washington-Pope’s because it serves as a reminder that the factors for determining whether a defendant has acted under color of law cannot be addressed out of context or without a constant eye toward whether they in fact help to answer the question of whether the defendant was acting under pretense of law. The strength of the Martinez Court’s reasoning is evident in decisions by courts both inside and outside the First Circuit citing it for the proposition that a police officer’s conduct must be meaningfully related to his official duties or that the officer must have purported to use his authority to deprive the victim of his or her constitutional rights. See, e.g., Anderson,
Most decisions are of less utility than Martinez when it comes to the narrower, more specific question of how to analyze whether the under color of law requirement is met in cases involving altercations between two police officers. Prior to Martinez, the few such decisions seem to be restricted to cases involving sexual harassment between employees. See, e.g., Rouse,
Had Martinez been a civilian rather than a fellow officer, the significance of Valentin’s uniform and weapon for purposes of the color-of-law determination might well have been greater. See, e.g., Jones v. Gutschenritter,909 F.2d 1208 , 1212-13 (8th Cir.1990) (observing that the presence of a uniformed and armed police officer may reasonably cause a civilian to refrain from taking action to protect his rights). But when the victim is himself a fellow officer and the particular interaction between the two officers is of a distinctively personal nature, it can generally be assumed that the aggressor’s official trappings, without more, will not lead the victim to believe that the aggressor is acting with the imprimatur of the state and, in turn, to forgo exercising his legal rights. The facts in this case are congruent with this hypothesis. The campaign of terrоr that Valentin mounted was patently personal in nature, and Martinez unquestionably realized as much; indeed, there was not the slightest indication that Valentin’s conduct was undertaken pursuant to the authority of his office. Plainly, the fact that Martinez walked away numerous times shows that he was not “so intimidated” by Valentin’s status as a policeman “as to cause him to refrain from exercising his legal right[s].” Id. at 1212.
Martinez,
Though in a footnote, and one heavily criticized by the Martinez panel’s dissenter, see id. at 992-93 (Bownes, J., dissenting), the Martinez majority’s reasoning is persuasive: in essence, the contention is that the fact that the victim is also a police officer may lessen the likelihood that she believes (and the perpetrator’s belief that) the perpetrator is purporting to act pursuant to official authority, the contours of which are likely quite familiar to the victim.
3. Subsequent Case Law on Police-on-Police Altercations
Still, since Martinez, as before it, there appear to be few cases dealing with police-on-police violence. In Segreto v. Kirschner,
Bailey v. Prince George’s County,
Similarly, in a short opinion in McNeese v. Vandercook,
Finally, the most recent case to deal with police-on-police altercations, Molera v. City of Nogales, No. 11-00097,
[n]o reasonable juror could infer that Sergeant Bon was pretending to act in his official capacity when he tased Officer Molerá. The undisputed facts demonstrate that Officer Molerá and Sergeant Bon historically threatened to tase each other and at the time of the tasing Officer Molerá was posturing and/or standing over Sergeant Bon daring him to turn the Taser on. “Just because [defendant] is a police officer does not mean that everything he does is state action.” Gritchen v. Collier,254 F.3d 807 , 813 (9th Cir.2001). Tasing a subordinate officer is undisputedly outside the scope of Sergeant Bon’s official duties. See id. (finding that officer who threatened to sue a private citizen during a traffic stop was not acting under color of state law given that such conduct was not subject to the control of the police department and was quintessentially personal). This case is factually similar to Martinez v. Colon, 54 F.3d 980 , 987 & n. 5 (1st Cir.1995), cited in Anderson v. Warner,451 F.3d 1063 , 1068 (9th Cir.2006), in which one officer accidentally shot another officer in the groin while “horsing around.” The Martinez court concluded: “though on duty and in uniform, [the assailant’s] status as a police officer simply did not enter into his benighted harassment of his fellow officer. Hazing of this sort, though reprehensible, is not action under color or pretense of law.” That reasoning applies with equally persuasive force in this case.
Molera,
4. An “Under Color of Law” Inquiry Calibrated Specifically for Police-on-Police Violence
Canvassing the “under color of law” case law for clashes involving police officers has revealed a chiaroscuro picture,
The inquiry, like any other, must consider the totality of the circumstances in a fact-intensive analysis. See Harvey,
But the words “related to” alone may not be construed too broadly, and they certainly cannot be construed as simplistic but-for enablement of the perpetrator’s conduct only in the sense that if the perpetrator and defendant were never co-officers they never would have encountered one another. See, e.g., Martinez,
Moreover, the court must cоnsider the conduct in the context of the particular moment in which it occurred. See Barna,
Taking all these factors into consideration, the court may conclude that the perpetrating officer’s conduct was a private wrong not committed under color of law. See, e.g., Martinez,
5. Shedding Light on the Dark Events of September 24, 2010
Mr. Bailey argues that he did not act under color of law for purposes of § 1983 when he pointed his gun at Ms. Washington-Pope’s head because “there is no evidence that [he] was taking any purported ‘police action’ for the alleged purpose of enforcing the law or ‘abusing his power’ as a police officer.” Bailey Mem. at 5 (Docket No. 16). “[T]he pointing of the gun,” he contends, “was precipitated by a verbal exchange completely unrelated to the performance of [his] duties as a police officer.” Id. In the absence of any
In response, however, Ms. Washington-Pope argues that “Defendant Bailey’s motives were not purely private, and his interaction with his partner, Ms. Washington-Pope, was not unconnected with his execution of his official duties.” Washington-Pope — Bailey Mem. at 21 (Docket No. 18). In fact, she points out, Officer Bailey “cannot recall having аny motives, let alone private ones.” Id. at 21 n. 3. She suggests that Officer Bailey’s reliance on Barna v. City of Perth Amboy is misplaced, and attempts to distinguish Bama by pointing out that
Officer Bailey’s actions did not stem from a family dispute and did not take place while he was off-duty, out of his jurisdiction, and after leaving a bar. Ms. Washington-Pope was not a member of Defendant Bailey’s family, and was forced to partner-up with Defendant, Officer Bailey and share a patrol car with him while they were on-duty. They did so over a full shift and engaged in and exercised police powers the entire time.
Id. at 22 (citations omitted).
The problem is not Ms. Washington-Pope’s recitation of the facts, but rather the legal significance with which she would vest them. The fact-intensive question here is whether, under the totality of the circumstances, Officer Bailey’s conduct was related in some meaningful way to his status or the performance of his duties, such that it was not purely private. The implicit suggestion that but for being forced to “partner-up with ... Officer Bailey and share a patrol car with him,” the incident would not have occurred, is unavailing. The case law canvassed earlier has firmly established that it is an officer’s purporting to exercise authority — some vestige, but not necessarily the whole cloth of which he possesses — that brings his conduct under color of law, not the unfortunate coincidence of their co-employment. Officer Bailey must have acted under pretense of law; in other words, he must have purported to act under authority of law when he pointed the gun at Ms. Washington-Pope’s head. Though his behavior is alarming and reprehensible, nothing suggests he pretended to act with any official police authority when he raised his service weapon.
For one, the question is not what Officer Bailey was doing five minutes or even ten seconds before the violence Ms. Washington-Pope complains of, even if in fact he was patrolling the streets or invoking his police authority to third parties. The question is the nature of the act Officer Bailey committed towards his partner, at the moment in time he committed it. Ms. Washington-Pope’s argument that she had to be Officer Bailey’s partner “over a full shift and engaged in exercising] police powers the entire time” is unresponsive to this requirement. Second, especially in cases of violence between two officers, without more, the fact that the perpetrator was on duty and that he committed the violence complained of with a police-issue gun and on police property — here, in a patrol car — is insufficient to bring his conduct under color of law. These manifestations of police authority are not per se determinants; rather, they are potential
If Officer Bailey had had supervisory authority over Officer Washington-Pope, or otherwise had greater authority than her, then her citation to Bonenberger might have been more persuasive. The positions of power that higher-ranking perpetrators have may, in many cases, give them the opportunity and pretended authority to intimidate their lower-ranking victims such that the perpetrators’ actions satisfy § 1983’s color of law requirement. That does not appear to be the case here, and far from it. By Ms. Washington-Pope’s account, she attempted to convince him (and ultimately did) to drive back to headquarters so that she could involve superiors because, far from purporting to act with authority, Officer Bailey was acting erratically and, as she reflected during the incident, consistent with his tendency to take things too far or handle them with a violent undertone.
As the foregoing survey of the case law has suggested, police officers have often been found to act under color of law where they have either attempted to arrest (or arrested) the plaintiff or where they have engaged in conduct otherwise consistent with actions generally taken by police officers (albeit usually outside of constitutional limits). The events described — Officer Washington-Pope’s asking Officer Bailey whether he had taken his medication or sugar pills and the escalating conversation until he pulled his gun — cannot be described as consistent with normal or customary police behavior. Officer Washington-Pope’s reaction — her considering drawing on him herself — suggests that she was aware, as a reasonable partner would have been, of the outrageous, off-the-rails, and unlawful nature of his conduct. This observation is not so much an independent factor, but rather another way of asking the ultimate question, namely, whether Officer Bailey purported to act with authority to further his acts.
Nor is it of significance that “Officer Bailey’s actions did not stem from a family dispute.” Again, the test is not whether the dispute between two officers was family-related; such a showing is simply one way, albeit an unsurprisingly common one, to show that an officer’s conduct might be purely private. Family was at issue in both Bama and Bonenberger, but private conduct can occur for a variety of other reasons, as Martinez, Parrilla-Burgos, McNeese, Molerá, Bailey, Segreto, Rouse, and other cases amply demonstrate. The test is not whether certain factors are met, but what those factors, in context, mean. The absence of a family dispute here, when the evidence establishes that Officer Bailey never purported to invoke his official authority, means little at all. Nor, for the same reason, is it dispositive that the harm to Ms. Washington-Pope did not occur through hazing, as in Martinez, Molerá, or Segreto.
Ms. Washington-Pope has one final argument. She contends that Officer Bailey’s actions “were directly connected to [his] execution of official duties,” so they could not have been, in the words used by the Bama Court, “purely private.”
Before [his] seizure of Washington-Pope took place, ... Officer Bailey stopped the car and looked under the vehicle, because he heard noises, which Washington-Pope did not hear. On the way to the third assignment, [he] thought a car was following their patrol car. Then [he] went past the street that they were supposed to go for the-third assignment, and [he] started to ramble. [He] then asked why he was being criticized and Ms. Washington-Pope responded ‘Because you’re ... tripping.’ Then [he] said ‘Say it again.’ Immediately after [his] threat, Washington-Pope was seized as ... Officer Bailey’s police issued [G]lock was aimed at her temple. [His] work-related threat, that occurred on-duty, in their parked patrol car outside of their next assignment, was not premised on a family dispute and was not ‘purely private.’ Also, it is abundantly clear that ... Officer Bailey placed his gun to Ms. Washington-Pope’s head immediately after Ms. Washington-Pope’s criticisms of his job performance, which is directly connected to Bailey’s execution of his official duties. Finally, patrolling the streets, stopping at residences in need of assistance, and pursuing, stopping and searching the inebriated driver all show [that] Officer Bailey was acting pursuant to his official duties on the night of the incident and he did not suddenly lose the cloak of government action when he did what he claims he doesn’t remember. [His] conduct during his seizure of Ms. Washington-Pope does not fit within the narrowly tailored exception best expressed in Bonenberger.”
Id. at 22-23 (citation and footnote omitted).
First, that “Officer Bailey was acting pursuant to his official duties on the night of the incident” is, again, unresponsive to whether he was acting pursuant to his official duties (or, that is, purporting to do so) when he allegedly assaulted Ms. Washington-Pope. Ms. Washington-Pope asserts that he cannot “suddenly lose the cloak of government action” if he spent all night “patrolling the streets, stopping at residences in need of assistance, and pursuing, stopping and searching [an] inebriated driver,” but that is precisely what can happen, and what did happen here. The question is not what Officer Bailey did visa-vis members of the public with whom he dealt as a police officer. The question is the nature of his interaction with Ms. Washington-Pope. That interaction — the one at'issue in this case — was purely private.
Second, even if the Court draws the inference that Ms. Washington-Pope’s “criticisms” were job-related — and therefore leaving to one side the question of whether asking someone (either seriously or sarcastically) whether he has taken his medication is really a job-related question— § 1983’s “under color of law” inquiry focuses not so much on why the perpetrator acted, but how. As the Bama Court explained, “[i]f an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity.”
Here, nothing about Officer Bailey’s conduct indicates that he was purporting to
Here, the uncontested verbal exchange between Officer Bailey and Officer Washington-Pope indicates not that Officer Bailey acted under any authority, actual or purported. When she asked him whether he was taking his medication, he did not tell her to stop criticizing his police work and that he had the authority to conduct it however he saw fit. He never invoked his police authority at all. Rather, when Officer Washington-Pope told him he was “f— g tripping,” he challenged her back: “Say it again.” After another round or two of foul language, he drew. He did nothing to invoke any authority as an officer, and Officer Washington-Pope, by her account, thought not that he had any such authority, but rather that he was known for taking things too far in the past, or handling matters violently. Her instinctive reactions, to try to escape from the car or to tase him or draw her own gun on him, were not the responses one would have to an officer asserting official authority; they were not how one would respond to a police officer acting consistent with his general duties. As the Martinez Court explained,
[W]hen the victim is himself a fellow officеr and the particular interaction between the two officers is of a distinctively personal nature, it can generally be assumed that the aggressor’s official trappings, without more, will not lead the victim to believe that the aggressor is acting with the imprimatur of the state and, in turn, to forgo exercising his legal rights. The facts in this case are congruent with this hypothesis. The campaign of terror that Valentin mounted was patently personal in nature, and Martinez unquestionably realized as much; indeed, there was not the slightest indication that Valentin’s conduct was undertaken pursuant to the authority of his office. Plainly, the fact that Martinez walked away numerous times shows that he was not “so intimidated” by Valentin’s status as a policeman “as to cause him to refrain from exercising his legal right[s], ” Id. at 1212.
Martinez,
Because Officer Bailey did not act under color of law for purposes of § 1983, Ms. Washington-Pope cannot pursue her federal constitutional claims against him, and so the Court’s inquiry vis-á-vis Mr. Bailey is at an end. Accordingly, Mr. Bailey’s Motion to Dismiss is granted.
B. Claims Against the City of Philadelphia: Independent Municipal Liability
In Section C of its Memorandum accompanying its Motion for Summary Judgment, the City of Philadelphia argues that “[i]f this honorable court dismisses [Ms. Washington-Pope’s] claims against Officer [Bailey] then the claims against the City of Philadelphia must also be dismissed” because “if Plaintiff has not suffered a constitutional injury, then a municipal liability claim cannot survive.” City Mem. at 20-21 (citing Collins v. City of Barker Heights,
The City’s argument misunderstands the law in this Circuit. Although a municipality cannot be liable under § 1983 under a vicarious liability theory, Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir.2004) (citing Monell v. Dep’t of Soc. Servs.,
The issue that the Supreme Court has not addressed, however, is whether municipal liability may lie independent of proof that a municipal employee violated the plaintiffs constitutional rights. In the Third Circuit, it may: “It is possible for a municipality to be held independently liable for a substantive due process violation even in situations where none of its employees are liable.” Brown v. Commw. of Pa. Dep’t of Health Emergency Med. Servs. Training Inst.,
The Fagan I Court was confronted with the question of “whether a municipality can be held independently liable under section 1983 in a police pursuit case when none of the pursuing police officers are liable” because they had been dismissed at summary judgment because their actions did not violate the Constitution. Fagan I,
[u]nder Monell and Canton, a municipality can be liable for a policy of failing to train police officers only if that policy causes a violation of the plaintiffs constitutional rights. The [Supreme] Court, however, did not address whether municipal liability is possible if none of the inadequately trained police officers individually violates the Constitution.13
Id. Narrowly reading City of Los Angeles v. Heller,
a substantive due process case arising out of a police pursuit, an underlying constitutional tort can still exist even if no individual police officer violated the Constitution. Unlike in Heller, the plaintiffs in this case brought separate, independent constitutional claims against the pursuing officers and the City. These claims are based on different theories and require proof of different actions and mental states. The pursuing officers are liable under section 1983 if their conduct “shocks the conscience.” Fagan v. City of Vineland,22 F.3d 1296 (3d Cir.1994) (in banc). The City is liable under section 1983 if its policymakers, acting with deliberate indifference, implemented a policy of inadequate training and thereby caused the officers to conduct the pursuit in an unsafe manner and deprive the plaintiffs of life or liberty.
A finding of municipal liability does not depend automatically or necessarily on the liability of any police officer. Even if an officer’s actions caused death or injury, he can only be liable under section 1983 and the Fourteenth Amendment if his conduct “shocks the conscience.” Id. The fact that the officer’s conduct may not meet that standard does not negate the injury suffered by the plaintiff as a result. If it can be shown that the plaintiff suffered that injury, which amounts to deprivation of life or liberty, because the officer was following a city policy reflecting the city policymakers’ deliberate indifference to constitutional rights, then the City is directly liable under section 1983 for causing a violation of the plaintiffs Fourteenth Amendment rights. The pursuing police officer is merely the causal conduit for the constitutional violation committed by the City.
Fagan I,
Ms. Washington-Pope has argued that Fagan applies to her facts. At this stage of the litigation, without more, the Court must agree and allow discovery to continue. If Officer Bailey’s conduct deprived Ms. Washington-Pope of her liberty (not to mention the obvious — that it risked her life), then even if Officer Bailey was in a diabetic trance precluding him from developing any intent, and so did not himself violate Ms. Washington-Pope’s constitutional rights, the City’s potential independent liability must be evaluated. The theory, as explained by the Fagan I Court, is that the perpetrating officer, although he does not commit a violation himself, acts as a “causal conduit for the constitutional viоlation committed by the City.” Id.
At oral argument, the City countered that Fagan I “created a very narrow exception to the traditional rule, that cities may not be held liable” absent an underlying constitutional violation by an officer they employ. Tr. 18:15-17. And this exception, the City contends, “has only been [applied] to other substantive due process claims,” whereas here, “we are looking at what is clearly a Fourth Amendment claim.” Tr. 18:3-7. But there are two problems with this contention. First, in addition to her Fourth Amendment claim against Officer Bailey, Ms. Washington-Pope has also brought a Fourteenth Amendment due process claim against him. Thus, even if the City’s reading Fagan I is correct (i.e., that it only extends to underlying substantive due process violations), then her independent claim against the City must stand.
The City’s citation to Grazier ex rel. White v. City of Philadelphia,
By contrast, the Fagan I Court was dealing with a more plausible scenario, in which the distance between what the officers had done and what the City had done could render the City liable even if the officers were not. Indeed, the ostensible reason that an officer can serve as a causal conduit while not committing a constitutional violation in his own right is that the standards for individual officers and municipalities differ — “shocks the conscience” for the former and deliberate indifference for thé latter. See id.
If we conditioned municipal liability on an individual police officer’s liability in every case, it might lead to illogical results. A municipality would escape liability whenever the conduct of the acting police officer did not meet the “shocks the conscience” standard, even though municipal policymakers, acting with deliberate indifference or even malice, implemented a policy which dictated his injury-causing actions. It is easy to imagine a situation where an improperly trained police officer may be ignorant of the danger created by his actions and inflicts injury. Meanwhile, the city’s policymakers, with a wealth of information available to them, are fully aware of those dangers but deliberately refuse to require proper training. The officer may escape liability because his conduct did not “shock the conscience.” It does not follow, however, that the city should also escape liability. The city caused the officer to deprive the plaintiff of his liberty; the city therefore has violated the plaintiffs Fourteenth Amendment rights.
Fagan I,
In any case, notwithstanding any persuasive power the City’s effort to distinguish Fagan I might have, Ms. Washington-Pope’s Fourteenth Amendment substantive due process claim against Officer Bailey also means that even if the Third Circuit Court of Appeals would limit the Fagan doctrine in the hypothetical circumstances described above, it still applies here. Though Fagan I has been criticized,
For these reasons, the Court denies the City’s Motion for Summary Judgment— more specifically, Section C of its Motion— with prejudice because it is an incorrect account of the governing law. Further discovery will determine whether Ms. Washington-Pope has raised a triable issue of fact. To prevail on her Fourteenth Amendment independent municipal liability claim, she will ultimately have to prove that the City had a policy or custom of failing to train or supervise as well as “a direct causal link between [that] municipal policy or custom and the alleged constitutional deprivation.” Harris,
CONCLUSION
For the foregoing reasons, Mr. Bailey’s Motion for Summary Judgment' is GRANTED and all claims against him are dismissed. The City of Philadelphia’s Motion for Summary Judgment is DENIED, with prejudice only as to Section C, and discovery may continue as between the City and Ms. Washington Pope.
An Order consistent with this Memorandum follows.
ORDER
AND NOW, this 22nd day of October, 2013, upon consideration of Mr. Bailey’s second Motion for Summary Judgment
1. Mr. Bailey’s Motion for Summary Judgment (Docket No. 16) is GRANTED;
2. the City of Philadelphia’s Motion for Summary Judgment (Section C) (Docket No. 17) is DENIED; and
3. Counsel for Ms. Washington-Pope and the City of Philadelphia shall appear in Chambers (Room 10613, 601 Market Street, Philadelphia, Pennsylvania, 19106) at 4:30 PM on Monday, November 18, 2013, for a status and scheduling conference.
Notes
. The Fourteenth Amendment provides, in pertinent part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law....” U.S. Const, amend. XIV, § 1 (emphasis added).
Because the Court holds that Officer Bailey did not act under color of state law, it is not necessary to address Ms. Washington-Pope’s contention that she has a Fifth Amendment claim against him. Still, especially given that she also brings claims against the City, it is worth noting that to the extent that she contends that her Fifth Amendment claim sounds in substantive due process (the only plausible reading of her Complaint based on the facts presented), she must rely instead on the Fourteenth Amendment's Due Process Clause, which applies to state and local actors, rather than the Fifth Amendment’s Due Process Clause, which applies to federal actors. See Micklus v. Carlson,
Thus, unless Ms. Washington-Pope is alleging that Officer Bailey or the City violated her rights against takings, self-incrimination, or being placed in double jeopardy, see McDonald,
. As the Barna Court explained, a relevant question is whether the officers were “engaging in activities normally associated with the police function.”
. The Bama Court had already explained that "[i]f an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity.”
. This observation makes these cases in the Third Circuit consistent with the Ninth Circuit Court of Appeals’ rule that
there are three critical requirements that must be satisfied: First, the defendant’s action must have been performed while the officer is acting, purporting, or pretending to act in the performance of his or her official duties. Second, the officer’s pretense of acting in the performance of his duties must have had the purpose and effect of influencing the behavior of others. Third, the challenged conduct must be related in some meaningful way either to the officer’s governmental status or to the performance of his duties.
Anderson,
. Martinez contained the language that "[i]n general, section 1983 is not implicated unless a state actor’s conduct occurs in the course of performing an actual or apparent duty of his office, or unless the conduct is such that the actor could not have behaved in that way but for the authority of his office.”
In fact, this rejected argument is also the position of the dissent in Martinez: "I think that Valentin exercised power possessed by virtue of Puerto Rico law and made possible only because he was clothed with the authority of Puerto Rico, and that he abused that power.” Martinez,
. In this respect, Martinez is easy to square with Bonenberger and other § 1983 harassment cases addressing whether the perpetrator’s harassment was furthered by any supervisory authority he may have possessed.
. See supra note 4.
. Two other cases since Martinez have dealt with police-on-police altercations, but only coincidentally, since the plaintiffs and defendants were members of different police departments and came across each other's paths rather accidentally. However, the outcomes are consistent with the reasoning and principles of the cases discussed above. See Gueits-Colón,
. See Gueits-Colón,
. None of this is to say that a victim’s subjective perceptions are the test for determining whether an officer acted under color of law, see Strange, 104 F.3d at *4 ("The under color of law determination does not turn on an individual’s subjective understanding of an actor's conduct.”), but, as the First Circuit reasoned in Martinez, the fact that victim and perpetrator are co-officers is an important factor in the totality of the circumstances analysis.
. See supra note 10.
. The Court construes the contested issue of fact of whether Officer Bailey could have formed intent to point his gun at Officer Washington-Pope in her favor — i.e., it finds that he could have done so, and did so, intentionally. This battle of the experts has taken place in the parties’ submissions because, as they argue, intent is necessary for a Fourth Amendment seizure. But if he acted intentionally, then surely he had motives, contrary to whatever Ms. Washington-Pope means to suggest when she states that Mr. Bailey "cannot recall having any motives, let alone private ones.” Washington-Pope — Bailey Mem.
. Indeed, this proposition is also all that Collins v. City of Harker Heights,
. Mr. Bailey argues that Ms. Washington-Pope’s Fourteenth Amendment substantive due process claim against him must be dismissed because "[cjlaims of excessive force” — or, presumably, seizure — “must be analyzed under the Fourth Amendment.” Bailey Mem. at 14 (citing Graham v. Connor, 490 U.S. 386, 395,
But this argument is unavailing, and would continue to be if the City itself made it later. For one, as the Supreme Court explained in County of Sacramento v. Lewis:
[W]e explained that Graham
"does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments; rather, Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” United States v. Lanier,520 U.S. 259 , 272, n. 7,117 S.Ct. 1219 ,137 L.Ed.2d 432 (1997).
Substantive due process analysis is therefore inappropriate in this case only if respondents’ claim is “covered by” the Fourth Amendment. It is not.
Here, as in the Lewis Court's hypothetical, there are serious questions as to whether, separate and apart from the "under color of law” analysis, Officer Bailey’s conduct on September 24, 2010, is covered by the Fourth Amendment. For instance, there is a genuine issue of material fact as to Officer Bailey's mental state on September 24, 2010, although for purposes of the substantive due process inquiry here, Ms. Washington-Pope may want to change her argument. See also, e.g., id. at 843-44,
Second, even if Ms. Washington-Pope’s substantive due process claim against Officer Bailey were to fail, that would not bring her claim against the City out of Fagan I's domain, for the reasons discussed below.
. As the Third Circuit Court of Appeals pointed out in Brown, "the [Supreme] Court has instructed that 'deliberate indifference’ is the necessary standard in order to establish § 1983 liability of a municipality.”
As we noted in Mark, some inconsistency exists in this circuit as to the standard of care to be applied to the underlying constitutional violation in policy, custom or practice cases.51 F.3d at 1153 n. 13. In Fagan II, we interpreted Collins to hold that the appropriate test in all substantive due process cases is whether the defendant’s actions shock the conscience. Id. (citing Fogan II, supra ). In articulating the standard of care for municipal liability, however, we explained that the shocks the conscience standard applied to determine the liability of the pursuing police officers under section 1983, while a deliberate indifference standard applied to determine the municipality’s liability. Id. (quoting Fagan v. City of Vineland, 22 F.3d 1283, 1292 (3d Cir.1994) (Fagan I)). Although City of Canton predated our opinions in Fagan I & II and the Supreme Court’s decision in Collins, we continue to recognize the application of the deliberate indifference standard to ascertain municipality liability as the constitutional standard in failure to train policeofficers cases. See, e.g., Beck v. City of Pittsburgh, 89 F.3d 966 , 972 (3d Cir.1996).
Kneipp,
. For criticism within the Third Circuit, see, for example, Mark,
. For instance, the Seventh Circuit Court of Appeals explained:
We note that a recent Third Circuit decision, [Fagan 7], held that a city could be liable under Monell even though the individual officer was not liable. Fagan attempts to distinguish Heller on the grounds that in Heller, the plaintiff was only seeking to hold the City of Los Angeles liable under a theory of respondeat superior. That cannot be the case since Monell expressly holds that there is no cause of action for respondeat superior liability against a municipal corporation under 42 U.S.C. § 1983. Monell,436 U.S. at 694-95 ,98 S.Ct. 2018 . Thus we choose to follow the clear holding of Heller that "[i]f a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Heller, 475 U.S. at 799 ,106 S.Ct. 1571 .
Thompson v. Boggs,
The law in two courts of appeals is less clear but potentially more nuanced. In the Eighth Circuit, for example,
[t]he appropriate question under Heller is whether a verdict or decision exonerating the individual governmental actors can be harmonized with а concomitant verdict or decision imposing liability on the municipal entity. The outcome of the inquiry depends on the nature of the constitutional violation alleged, the theory of municipal liability asserted by the plaintiff, and the defenses set forth by the individual actors. We do not suggest that municipal liability may be sustained where there has been no violation of the plaintiff's constitutional rights as a result of action by the municipality’s officials or employees. After all, a municipality can act only through its officials and employees. However, situations may arise where the combined actions of multiple officials or employees may give rise to a constitutional violation, supporting municipal liability, but where no one individual's actions are sufficient to establish personal liability for the violation.
Speer v. City of Wynne,
under Monell municipal liability for constitutional injuries may be found to exist even in the absence of individual liability, at least so long as the injuries complained of are not solely attributable to the actions of named individual defendants. Cf. City of Los Angeles v. Heller,475 U.S. 796 , 798-99,106 S.Ct. 1571 ,89 L.Ed.2d 806 (1986) (per curiam) (where alleged constitutional injury is caused solely by named individual defendant who is found not liable, municipal liability cannot lie). It is therefore possible that a jury could find the Commission and the County of Orange liable for the alleged violations of Barrett's First Amendment rights even after finding that Lee and Colonna are not liable. Lee and Colonna may have been the most prominent figures in Barrett’s termination; they may have issued plaintiff's termination letter. But the Commission is a multi-member body that makes its determinations as a group, and many of the adverse employment actions complained of by Barrett, including the decision to terminate him as Executive Director of the Commission, were taken by the Commission as a whole, not by Lee and Colonna by themselves. It is therefore possible that the defendant commissioners did not as individuals violate Barrett's rights, but that the Commission did.
Barrett v. Orange Cnty. Human Rights Comm’n,
By contrast, the Ninth Circuit Court of Appeals has agreed with Fagan I. See Fairley v. Luman,
Still other courts of appeals have avoided the question thus far. See Carnaby v. City of Houston,
. In a letter to the Court and as confirmed at oral argument, the City of Philadelphia withdrew all but Section C of its Motion for Summary Judgment without prejudice to raising its other arguments later in this litigation.