Zarnow v. CITY OF WICHITA FALLS, TEX.

Case: 09-10313 Document: 00511198496 Page: 1 Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 9, 2010

No. 09-10313 Lyle W. Cayce

Clerk

DELORES A ZARNOW, Independent Administratrix for the Estate of Dr

Allen J Zarnow, Deceased,

Plaintiff - Appellant Cross-Appellee

v.

CITY OF WICHITA FALLS TEXAS; KEN COUGHLIN,

Defendants - Appellees Cross-Appellants

Appeals from the United States District Court

for the Northern District of Texas

Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.

Leslie H. Southwick, Circuit Judge.

This is a suit under Section 1983. The claim is that a city and its police

chief violated a person’s Fourth Amendment rights. The district court granted

summary judgment in favor of the defendants. We AFFIRM.

I. STATEMENT OF FACTS

Dr. Allen Zarnow was a physician at the Clinics of North Texas (“the

Clinic”) in Wichita Falls, Texas. In July 1999, while Zarnow was on vacation,

Clinic employees discovered a gun, an ammunition magazine, several boxes of

shells, blasting caps, ammunition, and fuses in his office. None of the items were

active explosive devices. The Clinic’s manager contacted the police.

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Employees at the Clinic reportedly told the first officer on the scene that

Zarnow was a “gun expert and salesman.” Based on his military experience, the

police officer concluded that the found items were “dangerous.” Firefighters,

however, thought the materials did not constitute an imminent hazard. The

responding officer contacted the Bureau of Alcohol, Tobacco, and Firearms

(“ATF”) and also telephoned his superiors. Police Chief Ken Coughlin arrived

at the Clinic sometime after the initial discovery. Although keeping apprised of

the situation, he apparently did not assume command of the scene.

Shortly thereafter, police applied for a warrant to search Zarnow’s home.

The affidavit on which the warrant application was based stated that the offense

believed to have been committed was “possession of illegal explosives and other

explosive devices” in violation of Texas Penal Code Sections 46.05 and 46.09.

Among the allegations asserted in the affidavit were that “explosives” and

“explosive devices” had been identified at Zarnow’s office by “an expert on bombs

and explosives.” A local magistrate signed the warrant, which permitted officers

to search for explosive devices and prohibited weapons, along with any

documents or notes pertaining to the ownership of the weapons or the house.

While waiting for the magistrate to sign the warrant, police surrounded

Zarnow’s home for surveillance. Upon discovering that Zarnow and his family

had returned from vacation, police ordered Zarnow to exit the house. Zarnow

acquiesced. During a subsequent interrogation, Zarnow assured police officers

that he was a properly licensed firearms dealer, and offered to produce

paperwork showing his entitlement to possess all of the materials recovered at

his office. Police asked to see the documents, and Zarnow informed them that

the paperwork was in the house.

Zarnow was accompanied by police officers and ATF agents into the

residence, where he presented papers proving that he was licensed to possess

weapons and explosive materials. As Zarnow showed the documents to the ATF

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agent, the police officers began a consensual search of the home. When they

discovered a box marked “explosives” in plain view, Zarnow withdrew his

consent and asked the officers to leave. Officers informed Zarnow that his

consent was no longer necessary since they had a warrant to search the home.

The next morning, Chief Coughlin assembled all of the firearms and

ammunition seized at Zarnow’s home and laid them out for the news media to

photograph. Zarnow was jailed for possession of prohibited weapons. Over the

next few days, the police executed an additional search warrant at Zarnow’s

home and yet another at his lake house. However, a Wichita Falls grand jury

refused to indict, and no charges were ever brought against him.

During the searches of Zarnow’s homes, police officers seized weapons,

ammunition, currency, bonds, silver, band-aids, books, prescription medicines,

and over-the-counter medications. Although a number of these items were not

covered by the search warrant, police justified their seizure by citing to the

“plain view” doctrine. Officers later testified that they understood “plain view”

to permit the collection of any item that might be evidence of any crime. The

police chief testified that it was his practice to seize more than was necessary

during an initial search, so that he could later “rule things in or out.”

Zarnow filed suit in the U.S. District Court for the Northern District of

Texas, naming as defendants the City of Wichita Falls, Chief Coughlin, eight

named subordinate officers, and eight unnamed officers all in their individual

and official capacities. Zarnow alleged violations of the Second, Fourth, Fifth,

Sixth, and Fourteenth Amendments, and sought relief under 42 U.S.C. § 1983.

During the litigation, Allen Zarnow died. His widow, as administratrix of his

estate, was substituted as plaintiff.

Several officers were dismissed from the suit. All official capacity claims

were dismissed except for those against Chief Coughlin. The remaining

defendants later moved for summary judgment on qualified immunity grounds.

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The summary judgment motion was granted as to Zarnow’s claims under

the Second, Fifth, Sixth, and Fourteenth Amendments. However, summary

judgment was denied as to the Fourth Amendment claims. The City and the

individual officers appealed.

On appeal, a panel of this Court determined that it was without

jurisdiction to hear the City’s appeal because the denial of summary judgment

was not a final order. Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401 (5th

Cir. 2007). As to the claims against the individual officers, some of their conduct

likely violated Zarnow’s Fourth Amendment rights. Nevertheless, the panel held

that the officers were entitled to qualified immunity and dismissed the claims

against them. Only Zarnow’s claims against the City and Chief Coughlin in his

official capacity remained. The case was remanded to the district court for

further proceedings.

On remand, Zarnow alleged that the City was responsible for the officers’

misuse of the plain view doctrine during the home searches. Zarnow argued that

the officers’ expansive view of the doctrine was inconsistent with a Supreme

Court decision that “plain view” seizures had to be supported by probable cause.

Arizona v. Hicks, 480 U.S. 321, 326 (1987). Zarnow contended that the officers’

improper use of the “plain view” doctrine constituted a “policy or custom” of the

City that was implemented by its policymaker, Chief Coughlin.

Both parties again moved for summary judgment, which was granted in

favor of the City. The court found that Chief Coughlin was a “potential

policymaker,” but that the officers’ use of the plain view doctrine was not a

“custom or policy” of the City. Consequently, the court did not reach whether a

policy was the “moving force” behind the alleged constitutional violation.

Zarnow timely appealed the district court’s grant of summary judgment

in favor of the City. The City cross-appealed to challenge the court’s finding that

Chief Coughlin was a “potential policymaker.”

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II. DISCUSSION

We review a district court’s grant of summary judgment de novo.

Mahaffey v. Gen. Sec. Ins. Co., 543 F.3d 738, 740 (5th Cir. 2008). A district court

should grant summary judgment when there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c)(2). In making this determination, the evidence must be viewed in the light

most favorable to the nonmoving party. Mahaffey, 543 F.3d at 740.

A. Municipal Liability

A municipality is a “person” subject to suit under Section 1983. See Monell

v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A local

government entity may be sued “if it is alleged to have caused a constitutional

tort through ‘a policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers.’” City of St. Louis v.

Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690).

Alternatively, municipal liability may attach where the constitutional

deprivation is pursuant to a governmental custom, even if such custom has not

received formal approval. Monell, 436 U.S. at 690-91. “[M]unicipal liability

under Section 1983 requires proof of three elements: a policymaker; an official

policy; and a violation of constitutional rights whose moving force is the policy

or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)

(citation omitted).

The elements of the Monell test exist to prevent a collapse of the municipal

liability inquiry into a respondeat superior analysis. See Bd. of Cnty. Comm’rs

of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 415 (1997). A municipality may

not be subject to liability merely for employing a tortfeasor. See, e.g., City of

Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). Municipal liability requires

deliberate action attributable to the municipality that is the direct cause of the

alleged constitutional violation. Id. at 391-92.

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1. Municipal Liability – Policymaker

The first requirement for imposing municipal liability is proof that an

official policymaker with actual or constructive knowledge of the constitutional

violation acted on behalf of the municipality. Cox v. City of Dallas, Tex., 430

F.3d 734, 748-49 (5th Cir. 2005). A policymaker is “one who takes the place of

the governing body in a designated area of city administration.” Webster v. City

of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). He or she must “decide

the goals for a particular city function and devise the means of achieving those

goals.” Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984) (en banc).

Zarnow insists that Chief Coughlin acted as the City’s policymaker and was

actively aware of the errant plain view policy used in the seizure of items from

her home.

A city’s governing body may delegate policymaking authority (1) by

express statement or formal action or (2) “it may, by its conduct or practice,

encourage or acknowledge the agent in a policymaking role.” Id. There is no

express delegation here.

As evidence of the City’s conduct or practice, Zarnow produced several

“General Orders” issued by the chief of police to the police department.1 Each

General Order begins with the language, “It is the policy of this department . .

.” and proceeds to set out regulations addressing specific behaviors. These

orders are binding on the officers until reviewed, altered, or changed by the City

Manager or City Council. Zarnow asserts that the chief’s general power to issue

such orders establishes a custom by which the chief creates law enforcement

policy for the City. See Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 616

(5th Cir. 1999).

1

There is no argument that the police chief promulgated a General Order

specifically addressing the “plain view” policy of which Zarnow complains. He did not.

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The City, on the other hand, contends that Chief Coughlin was a

“decisionmaker” but not an official policymaker for the City. There is a fine

distinction between a policymaker and a decisionmaker. Jett v. Dall. Indep. Sch.

Dist., 7 F.3d 1241, 1247 (5th Cir. 1993). The fact that an official’s decisions are

final is insufficient to demonstrate policymaker status. Id. at 1248.

The City employs state law as evidence that Coughlin is not a policymaker.

Wichita Falls is a “home rule city” according to Texas Law. Its powers are

limited only by the Texas Constitution, state statutes, and the City’s Charter.

Tex. Loc. Gov. Code § 51.072 (Vernon 2001). In Wichita Falls, the City Council

and City Manager hold general legislative and executive powers. The City

insists that the City Manager and City Council have the relevant authority over

the police department as established by Article 12 of the City Charter:

The police department shall be under the direction of a chief of

police, who shall be appointed by the city manager and who, subject

to the supervision of the city manager and to such rules regulations

and orders prescribed by the city manager not inconsistent with the

City Charter and ordinances, shall have immediate control and

direction of such department . . . .

This is the kind of authority, the City argues, that equates to policymaking

authority in the specific department where the constitutional deprivation

occurred. McMillan v. Monroe Cnty., Ala., 520 U.S. 781, 786-87 (1997).

Relying on Article 12, the City insists that the City Manager has

supervisory authority over the police chief. This type of review of the police

chief’s actions demonstrates, the City argues, that he is not a final policymaker.

See Colle v. Brazos Cnty., Tex., 981 F.2d 237, 244-45 (5th Cir. 1993).

The nature of the administrative oversight is important in determining

“policymaker” status. An official may be a policymaker even if a separate

governing body retains some powers. See Bennett, 728 F.2d at 769. An official

may be termed a “policymaker” even if the municipality retains “the prerogative

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of the purse and final legal control by which it may limit or revoke the authority

of the official.” Id. Further, the subject matter of administrative review must

be precise in order to attach the presumption against policymaking. Beattie v.

Madison Cnty. Sch. Dist., 254 F.3d 595, 603 (5th Cir. 2001). “The mere existence

of oversight, however, is not enough; the oversight must pertain to the area of

authority in question.” Id. (citation omitted).

Although the City offered evidence that the City Council periodically

authorized the creation of various police task forces, those resolutions have little

to do with police policy. There is no evidence that the City Council has ever

commented authoritatively on the internal procedures of the department.

Consequently, the administrative review process in place here does not

conclusively demonstrate that Chief Coughlin is not a policymaker.

Still, we have maintained that “neither complete discretionary authority

nor the unreviewability of such authority automatically results in municipal

liability. There must be more.” Bolton v. City of Dallas, Tex., 541 F.3d 545, 551

(5th Cir. 2008). We agree with the district court that the General Orders

promulgated by the police chief sufficed to be the “more” that is needed to prove

policymaking authority in these circumstances. On this evidence, the chief of

police is the sole official responsible for internal police policy. Others have only

marginal involvement with the internal procedures of the police force. The

alleged constitutional violation arose from a peculiar interpretation of a “plain

view” procedure, which was employed only during police activities.

Although no General Order was ever entered regarding this policy, it

appears that the police chief would have been authorized to speak on the City’s

behalf if such a policy was created. Accordingly, we hold that the City impliedly

delegated its policymaking authority to the chief of police.

2. Municipal Liability – Official Policy or Custom

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Upon finding a policymaker, we must next consider whether the allegedly

unconstitutional action constitutes a “custom or policy” of the municipality. We

have identified two forms that “official policy” may take. First, a plaintiff may

point to a policy statement formally announced by an official policymaker. See

Webster, 735 F.2d at 841. In the alternative, the plaintiff may demonstrate a

“persistent widespread practice of city officials or employees, which, although not

authorized by officially adopted and promulgated policy, is so common and well

settled as to constitute a custom that fairly represents municipal policy.” Id.

Because no formal directive exists concerning the police department’s “plain

view” practices, our analysis turns on the second form of policy.

A plaintiff may prove the existence of a “custom or policy” in one of two

ways. First, a pattern of unconstitutional conduct may be shown on the part of

municipal actors or employees. Id. at 842. A pattern of conduct is necessary

only where the municipal actors are not policymakers. Alternatively, it may be

shown that a final policymaker took a single unconstitutional action. Bolton,

541 F.3d at 548.

a. Pattern of Unconstitutional Conduct

The district court concluded that Zarnow has not demonstrated a pattern

of unconstitutional conduct by police officers. A customary policy consists of

actions that have occurred for so long and with such frequency that the course

of conduct demonstrates the governing body’s knowledge and acceptance of the

disputed conduct. Webster, 735 F.2d at 842.

In an effort to establish a pattern, Zarnow invites this Court to rely on a

series of inferences. The officers’ testimony concerning the plain view doctrine

was given several years after the incident giving rise to this action. During the

intervening period, Zarnow alleges many unconstitutional searches of the same

type must have taken place. No evidence of that was offered. There is no

testimony that the plain view doctrine was misused in another case. Mere

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“improbable inferences” and “unsupported speculation” are not proper summary

judgment evidence. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

Zarnow asserts that the Chief Coughlin and the City effectively ratified

the officers’ unconstitutional conduct. Among the arguments is that during this

litigation, the City has defended the constitutionality and propriety of the

actions taken by its officers, despite the finding of a prior panel of this Court that

the officers’ actions violated the Fourth Amendment. Such a defense constitutes,

so the argument goes, a ratification of the unlawful conduct of its officers.

Good faith statements made in defending complaints against municipal

employees do not demonstrate ratification. See Peterson v. City of Forth Worth,

Tex., 588 F.3d 833, 852 (5th Cir. 2009). A “policymaker who defends conduct

that is later shown to be unlawful does not necessarily incur liability on behalf

of the municipality.” Id. at 848 (citing Coon v. Ledbetter, 780 F.2d 1158, 1161-62

(5th Cir. 1986)).

Zarnow also suggests that Chief Coughlin may have incurred liability on

behalf of the City by failing to supervise his subordinates during the search. To

support a supervisory liability claim, the misconduct of a subordinate must be

conclusively linked to the action or inaction of the supervisor. See Doe v. Taylor

Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994) (en banc). A supervisory

official is liable if he demonstrates deliberate indifference to a plaintiff’s

constitutionally protected rights. Id. at 454.

Deliberate indifference is “more blameworthy than negligence” but less

blameworthy than purposeful harm. See Farmer v. Brennan, 511 U.S. 825, 835

(1994). The standard is “stringent” and requires that the supervisory actor

disregarded a known consequence of his action. Southard v. Tex. Bd. of Crim.

Justice, 114 F.3d 539, 551 (5th Cir. 1997).

Here, there was no deliberate indifference. Coughlin shared the errant

view of the doctrine which caused Zarnow’s constitutional deprivation.

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Negligent misinformation is insufficient to establish supervisory liability. See

id. Similarly, there is no evidence that Coughlin’s failure to supervise the search

rose above the level of negligent inaction. “Unintentionally negligent oversight”

does not satisfy the deliberate indifference standard. Gonzalez v. Ysleta Indep.

Sch. Dist., 996 F.2d 745, 756 (5th Cir. 1993)(citation omitted).

b. Single Instance of Unconstitutional Conduct by a Policymaker

The court did not consider whether Chief Coughlin committed a single

constitutional violation sufficient to confer liability on the City. This was

because Zarnow did not allege in the district court that Chief Coughlin

personally committed such a violation. Instead, the focus was on theories of

ratification and supervisory liability.

For the first time on appeal, Zarnow argues that a single incident of

unconstitutional conduct by a policymaker may impute liability to the City. The

only citation to this rule in her appellate briefing appears in the argument that

Chief Coughlin failed to supervise his employees. The brief does not assert that

Coughlin was personally involved with the violation itself. Under questioning

at oral argument, Counsel nevertheless extended this argument, claiming for the

first time that Coughlin personally seized prohibited items from the house.

This argument was not made to the district court. We will not consider it,

as it is made for the first time on appeal and is therefore waived. LeMaire v.

Louisiana Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

c. Failure to Train

As a separate theory of municipal liability, Zarnow contends that the City

had a policy of inadequate training of its police officers. “A municipality’s failure

to train its police officers can without question give rise to § 1983 liability.”

World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 756

(5th Cir. 2009) (citations omitted). To prevail on a “failure to train theory” a

plaintiff must demonstrate: (1) that the municipality’s training procedures were

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inadequate, (2) that the municipality was deliberately indifferent in adopting its

training policy, and (3) that the inadequate training policy directly caused the

violations in question. Id.

Zarnow’s initial brief does not reference any evidence concerning the

procedures used to train the officers, the officers’ qualifications, or direct

references to the particular inadequacies of their Fourth Amendment training.

Zarnow’s only evidence that the training procedures were deficient is that the

officers expressed an unlawful interpretation of the plain view doctrine. In order

for “liability to attach based on an ‘inadequate training’ claim, a plaintiff must

allege with specificity how a particular training program is defective.” Roberts

v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).

Further, this Court has previously rejected attempts by plaintiffs to

present evidence of isolated violations and ascribe those violations to a failure

to train. See generally Goodman v. Harris Cnty., 571 F.3d 388 (5th Cir. 2009).

Here, the only training-related evidence in the record demonstrated that the

City’s training procedures complied with state law. We consider compliance with

state requirements as a factor counseling against a “failure to train” finding. See

Conner v. Travis Cnty., 209 F.3d 794, 798 (5th Cir. 2000). Zarnow has not

established that the City’s training practices are inadequate. Because Zarnow

cannot establish the first element of the “failure to train” test, we will not

address the remaining ones.

3. Municipal Liability – Moving Force

The district court did not reach the final element of the municipal liability

analysis, which considers whether the allegedly unlawful seizure policy was the

“moving force” causing Zarnow’s constitutional deprivations. See Piotrowski, 237

F.3d at 578. We stop short in our analysis as well. Because we are affirming the

court’s finding that Zarnow has not established a “custom or policy” of the City,

we too need not consider the moving force factor.

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B. Law-of-the-Case Doctrine

Zarnow argues that the law-of-the-case doctrine should have prevented the

district court from granting summary judgment. That argument is based on the

fact that the district court denied the City’s first motion for summary judgment

on the basis that issues of fact existed concerning whether the City’s search

policy was the “moving force” underlying the unlawful seizures conducted at

Zarnow’s home. Following an appeal to this Court on issues of qualified

immunity, the case was remanded. The parties again moved for summary

judgment. This time, the district court granted the City’s motion.

Zarnow contends that the district court could not properly grant summary

judgment to the City on the same issues decided in the prior order. However,

the law-of-the-case doctrine does not operate to prevent a district court from

reconsidering prior rulings. “A court has the power to revisit prior decisions of

its own . . . in any circumstance. . . .” Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 817 (1988). The doctrine “directs a court’s discretion, it does

not limit the tribunal’s power.” Arizona v. California, 460 U.S. 605, 618 (1983)

(citations omitted). The law-of-the-case doctrine is a rule of convenience

designed to prevent unnecessary reconsideration of previously decided issues.

See Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983). It is equally clear,

though, that the rule “yields to adequate reason.” Id.

Further, we have rejected the argument that the doctrine precludes a

grant of summary judgment following a prior denial. An order denying

summary judgment is interlocutory, and leaves the trial court free to “reconsider

and reverse its decision for any reason it deems sufficient, even in the absence

of new evidence or an intervening change in or clarification of the substantive

law.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th

Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069

(5th Cir. 1994).

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Accordingly, we agree with the district court that Chief Coughlin is a

policymaker for the City, but that Zarnow has not established a custom or policy

sufficient to impose liability. We AFFIRM.

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