Jones v. Wellham

Filed: February 11, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 95-2882(L)

(CA-93-771-H)

Erin Kathleen Jones, et al,

Plaintiffs - Appellants,

versus

George W. Wellham, III, et al,

Defendants - Appellees.

O R D E R

The Court amends its opinion filed January 14, 1997, as

follows:

On page 2, section 5, line 3 -- the title for John F. Breads

is corrected to read "Senior Assistant County Attorney."

On page 2, section 5, line 8 -- the County Attorney's name is

corrected to read "Phillip F. Scheibe."

On page 8, first full paragraph, line 5 -- "includes" is cor-

rected to read "include."

On page 11, second full paragraph, line 4 -- the "state Dis-

trict Attorney's Office" is corrected to read "the State's Attor-

ney's Office.

- 2 -

On page 11, second full paragraph, line 6 -- the phrase "Dis-

trict Attorney" is corrected to read " State's Attorney."

On page 13, second full paragraph, line 4 -- the citation is

corrected to read "Shaw v. Stroud."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERIN KATHLEEN JONES,

Plaintiff-Appellant,

v.

GEORGE W. WELLHAM, III; ANNE

ARUNDEL COUNTY; MAXWELL V.

FRYE, JR.; WILLIAM S. LINDSEY,

No. 95-2882

Defendants-Appellees,

and

MICHAEL DENNIS ZIEGLER; PRESENTLY

UNKNOWN AND UNDETERMINED

SUPERVISORY POLICE OFFICERS,

Defendants.

ERIN KATHLEEN JONES,

Plaintiff-Appellee,

v.

MICHAEL DENNIS ZIEGLER,

Defendant-Appellant,

and

No. 95-2966

GEORGE W. WELLHAM, III; ANNE

ARUNDEL COUNTY; MAXWELL V.

FRYE, JR.; WILLIAM S. LINDSEY;

PRESENTLY UNKNOWN AND UNDETERMINED

SUPERVISORY POLICE OFFICERS,

Defendants.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Alexander Harvey II, Senior District Judge.

(CA-93-771-H)

Argued: September 26, 1996

Decided: January 14, 1997

Before MURNAGHAN and ERVIN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Phillips wrote the opin-

ion, in which Judge Murnaghan and Judge Ervin joined.

_________________________________________________________________

COUNSEL

ARGUED: William Francis Gately, HOWELL, GATELY, WHIT-

NEY & CARTER, Towson, Maryland, for Appellant. John Francis

Breads, Jr., Senior Assistant County Attorney, OFFICE OF LAW, Annapo-

lis, Maryland; Robert Charles Verderaime, VERDERAIME &

DUBOIS, P.A., Baltimore, Maryland, for Appellees. ON BRIEF:

H. Thomas Howell, Kathleen D. Leslie, HOWELL, GATELY,

WHITNEY & CARTER, Towson, Maryland, for Appellant. Phillip F.

Scheibe, County Attorney, OFFICE OF LAW, Annapolis, Mary-

land; Ronald A. Silkworth, Glen Burnie, Maryland, for Appellees.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Claiming that she was raped in 1990 by then-Anne Arundel County

police officer Michael Ziegler, Erin Jones brought various § 1983 and

state law claims against Ziegler, the County, and George Wellham,

then County Police chief, in Maryland state court. Following removal

2

of the action, the claims against Ziegler were first tried on the merits

to a jury which found for Jones, awarding her substantial compensa-

tory and punitive damages. Ms. Jones then added federal and state

claims against former Police Chiefs Maxwell Frye and William Lind-

sey, following which the County and the three Police chief-defendants

moved for, and were granted, summary judgment as to all claims

against them. We affirm both on Jones' appeal from the grant of sum-

mary judgment against her and on Ziegler's appeal from the judgment

entered against him on the jury verdict.

I.

In the early morning of November 15, 1990, Officer Ziegler

stopped a pickup truck driven by Ms. Jones, then age 23, on ostensi-

ble suspicion of driving while intoxicated. After questioning and

observing Jones, Ziegler asked her to get into his police cruiser, told

her that he would not arrest her, and said that he would drive her

home. He did not, instead driving past the turnoff to her house and

into a church parking lot. When Jones questioned him as to why he

had gone past her house, Ziegler explained that he had to check some-

thing at the church.

Ziegler got out of the car at the church, and removed some of his

clothing. According to Jones, when he returned to the car, he forcibly

removed Jones' underwear and then forced her to have sex with him.

According to Ziegler, Jones removed her underwear and willingly had

sex with him. Ziegler then drove Jones home and dropped her off.

Once home, Jones called 911 to report the rape, but hung up after

saying very little. The 911 operator traced her call and sent police

units to her address; when they arrived, she explained that she had

been raped by a uniformed officer. The police took her to the hospital

for treatment and a medical examination.

As a result of Jones' report to the police, Ziegler's police powers

were immediately suspended, and he was ordered to surrender his

weapon and badge. After an investigation the state's attorney charged

him with second-degree rape, but he eventually pleaded to the lesser

charge of misconduct in office, for which he received a one-year sus-

3

pended sentence and five years' probation. He also agreed to resign

from the police force.

The incident with Jones was not the first time Ziegler had been

involved in sex-related conduct with a citizen while on duty. In 1979

he had used his badge to gain entrance to a woman's apartment in the

middle of the night, asking to use her telephone. The woman, Brenda

Forsythe, later told the police that Ziegler removed his shirt and asked

her if she could help him by getting a blood stain out of it. Ziegler

then sat on the sofa, took off his shoes and gunbelt, and when For-

sythe came near the sofa, Ziegler began fondling her. When, as she

claimed, she resisted, Ziegler responded that if she did not have sex

with him, he would have her arrested for prostitution. According to

Forsythe, Ziegler then followed her to her bedroom, where he dis-

robed, tried to force her to perform oral sex on him, and, when she

refused, raped her. After he dressed and used one of Forsythe's towels

to clean himself, he left, saying that Forsythe could "call him."

Ms. Forsythe went the next day to the police station where she told

her story of the previous night's events to then-Police Chief Maxwell

Frye. Frye ordered a complete criminal investigation of the incident

and assigned it to a Sergeant Chaplin. Forsythe also was allowed to

meet, at her request, with a female officer, Detective Susan Benson

of the Sexual Assault Unit. Benson took Forsythe for a medical exam-

ination, and eventually took her formal statement, which contained all

of the above-described details. Officers also went to Forsythe's apart-

ment and collected physical evidence, including the towel Ziegler

used.

Forsythe then picked Ziegler out of a police lineup, and she eventu-

ally passed a police-administered polygraph test regarding the alleged

rape. Further, police radio records confirmed that Ziegler was in the

vicinity of Forsythe's apartment at the time she says the rape

occurred. Forsythe's neighbor also gave a statement regarding For-

sythe's demeanor on the morning after the incident which corrobo-

rated Forsythe's own statement.

Ziegler met with the officers investigating the Forsythe incident,

was read his rights, and after answering a few preliminary questions,

4

invoked the Fifth Amendment. He never gave a statement regarding

his version of the incident.

In late August of 1979, Chief Frye had informed Ziegler that he

was being suspended without pay pending the results of the Forsythe

investigation. Meanwhile, Detective Benson and Sergeant Chaplin

had met with State's Attorney Warren Duckett. After Benson pres-

ented all the evidence she had, she recommended that rape charges be

filed. The others disagreed, and Duckett concluded that because he

was not confident that the available evidence respecting the non-

consensual nature of the incident would suffice to convict, he

declined to prosecute Ziegler for any criminal violation. Duckett noti-

fied Chief Frye of his decision.

Chief Frye was given the criminal investigation file. On September

7, Frye met with Ziegler to conclude the department's internal affairs

investigation of the incident. Ziegler, accompanied by his attorneys,

made no statement but agreed to accept whatever punishment the

Chief chose. Chief Frye apparently made no further inquiry, but

accepted Ziegler's offer and decreed the following punishment: (1)

one month's suspension without pay; (2) transfer of Ziegler to desk

duty on the Telephone Reporting Service; (3) loss of personal patrol

vehicle; and (4) that he consult the Police Chaplain for counselling.

In a deposition given for this case, Frye testified that, in setting this

penalty, he did not dispute the veracity of the criminal file materials,

including Forsythe's statement.

The following June, Frye put Ziegler back on street duty with a car,

gun, and uniform. That month, Ziegler visited Forsythe's workplace,

but she was not there at the time. When she learned Ziegler had been

there, Forsythe called Chief Frye and expressed her concern that he

was back on street duty. Frye, according to his memorandum of the

call, told her not to talk to many people about the incident and that

if she kept calling, she would be sued.

Frye retired in the mid-1980s, and was replaced by William Lind-

sey, who was himself eventually replaced by George Wellham. Well-

ham was Chief of Police in 1990 when Ziegler allegedly raped Jones.

Ms. Jones then brought this action in Maryland state court seeking

damages for the alleged rape by Ziegler and originally naming

5

Ziegler, Chief Wellham and the County as defendants. Her claims

against Ziegler alleged liability under 42 U.S.C. § 1983 for violation,

under color of state law, of her constitutional rights under the Fourth

and Fourteenth Amendments and under state law for common law

battery. Her claims against the County and Chief Wellham alleged

liability on various alternative theories under § 1983 and state com-

mon law. Following removal of the action to federal court, the claims

against the County and Chief Wellham were severed from those

against Ziegler, and those against Ziegler proceeded to a jury trial in

which the jury found him liable and awarded Jones compensatory

damages of $650,000 and punitive damages of $400,000. Following

entry of judgment against Ziegler on this jury verdict, Jones was per-

mitted to file an amended complaint which added to those claims still

pending for disposition against the County and Chief Wellham claims

against former Chiefs of Police Frye and Lindsey in their individual

and official capacities. In her amended complaint, Jones sought to

impose liability upon the County under various federal and state law

claims: under § 1983, for municipal liability based upon the official

conduct of the three police chiefs in retaining Ziegler on the police

force, either as a matter of County-condoned "custom or practice," or

as ad hoc policy choices of the police chiefs attributable to the

County; under state common law, for vicarious liability for the battery

committed by Ziegler and for the negligent conduct of the police

chiefs in allowing Ziegler to return to and remain on street duty; and

under state statutory law imposing on the County an obligation to

indemnify any of its employee-defendants against whom liability was

imposed. Finally, the complaint sought under § 1983 to impose super-

visory liability upon the police chiefs in their individual capacities for

their conduct relative to Ziegler's retention on duty.

On motions of the County and the three police chiefs, the district

court granted summary judgment dismissing all of Jones' § 1983

claims against those parties; dismissed Jones' statutory indemnifica-

tion claim against the County; and declined to exercise supplemental

jurisdiction over Jones' state law claims against the County seeking

to impose vicarious liability for Ziegler's battery and the police

chiefs' negligence in allowing Ziegler to remain on duty.

These appeals by Jones in No. 95-2882 and by Ziegler in No. 95-

2966 followed and were consolidated in this court.

6

II.

In No. 95-2882, Ms. Jones challenges only the dismissal of her

§ 1983 municipal liability claim against the County and her § 1983

supervisory liability claim against Police Chief Frye.1 We take those

in order.

A.

Jones' municipal liability claim against the County, as pleaded and

sought to be supported against the County's motion for summary

judgment sought, though confusedly, to impose liability on alternative

theories: (1) that Jones' 1990 rape by Ziegler was directly caused by

the County's condonation, with deliberate indifference to its conse-

quences, of a known "custom or usage" of its police chiefs in failing

to impose adequate discipline for sexually-related conduct such as

Ziegler's; (2) that Jones' 1990 rape by Ziegler was directly caused by

the deliberately indifferent decisions of Chief Frye in 1979 and 1980,

first to retain Ziegler in service, then to return him to street duty,

despite knowledge of his propensity for sexual misconduct while on

duty, which decisions are attributable to the County as ad hoc policy

choices of Frye as authorized final policy maker in police personnel

matters.

The district court rejected the "custom or usage" theory of liability

on the basis that the undisputed facts of record failed, as a matter of

law, to show the "persistent and widespread" practice required to

invoke that theory. See Spell v. McDaniel, 824 F.2d 1380, 1386 (4th

Cir. 1987). On this appeal, Jones has specifically "acquiesce[d]" in

that ruling. Appellant's Br. 25. She therefore relies solely on her

claim of error by the district court in rejecting her alternative theory

of liability by virtue of Chief Frye's decisions, as final policy maker

for the County, in failing to discharge or at least to keep Ziegler off

_________________________________________________________________

1 She therefore does not challenge the district court's dismissal on the

merits of her § 1983 supervisory liability claims against Police Chiefs

Wellham and Lindsey nor of her state-law indemnification claim against

the County. Neither does she challenge the district court's refusal to

exercise supplemental jurisdiction over her state common law vicarious

liability claim against the County.

7

street duty back in 1979 and 1980 following the Forsythe incident.

We therefore turn to that claim of error.

Jones' specific reliance is on the theory of municipal liability rec-

ognized in Pembaur v. Cincinnati, 475 U.S. 469 (1986). Under that

theory, "municipal liability may be imposed for a single decision by

municipal policy makers under appropriate circumstances," id. at 480,

and "municipal policy makers" include not only a municipality's

"properly constituted legislative body," but also those "officials

`whose acts or edicts may fairly be said to represent official policy.'"

Id. (quoting Monell v. New York City Dept. of Social Servs., 436 U.S.

658 (1978)). Whether a particular official's "acts or edicts" may be

attributed to a municipality as its "policy" depends upon whether the

official "possesses final authority to establish municipal policy with

respect to [the particular act or edict] ordered." Id. 481. Final author-

ity to establish municipal policy in a particular area contemplates

more than "discretion in the exercise of particular functions" in that

area; responsibility "for establishing final policy with respect to the

subject matter in question is required." Id. at 482-484; see also Spell,

824 F.2d at 1386 (implies more than "discretionary authority in purely

operational aspects of government").

Critically, Pembaur dealt only with a "policy" decision by a munic-

ipal official that directly commanded a constitutional violation, see id.

at 484 (Fourth Amendment search). Its specific holding did not, there-

fore, touch official "acts or edicts" that, though not themselves uncon-

stitutional, hence not the immediate cause of constitutional injury,

might be shown to have caused a constitutional violation by others.

That, of course is the factual situation presented in the case at issue,

and for Pembaur's theory of municipal liability to apply here, it must

be considered to reach such decisions as well as those directly com-

manding or effecting constitutional violations. We have not, appar-

ently, ever directly addressed that issue, though we have, of course,

applied Pembaur to single policy decisions that were themselves

unconstitutional, hence were the immediate causes of constitutional

violations. See, e.g., Hall v. Marion Sch. Dist. No. 2, 31 F.3d 183 (4th

Cir. 1994) (unconstitutional firing by school board). Other circuits

have, however, simply assumed Pembaur's application to single pol-

8

icy maker decisions which though not themselves unconstitutional

were the ultimate causes of constitutional violations.2

Because the Supreme Court recently has granted certiorari in Bryan

County v. Brown, ___ U.S. ___, 116 S. Ct. 1540 (U.S. Apr. 22, 1996)

(No. 95-1100), to consider issues that may touch upon whether

Pembaur applies at all to such situations, we will reserve decision on

that threshold question and simply assume for purposes of this case

that, in otherwise appropriate circumstances, Pembaur's single-

decision principle can apply to single policy maker decisions not

themselves unconstitutional, such as those of Chief Frye here in issue.

In making that assumption, we also assume (as did the district court)

that in applying Pembaur to this type situation, the imposition of

municipal liability would require (as it would not with respect to deci-

sions themselves unconstitutional, see City of Oklahoma v. Tuttle, 471

U.S. 808, 822 (1985)), proof of deliberate indifference of the decision

maker to the possible consequences of his decision, hence a "con-

scious choice" of the course of action taken, see City of Canton v.

Harris, 489 U.S. 378, 389 (1989), and a close causal connection

between the decision and the ultimate constitutional injury inflicted.

See id. at 391 (policy choice must have "actually caused" the constitu-

tional violation); Tuttle, 471 U.S. at 823 ("affirmative link"); Spell,

824 F.2d at 1391 ("`almost bound to happen, sooner or later', rather

than merely `likely to happen in the long run'").

Jones' Pembaur claim, as indicated, is that Chief Frye's November

1979 decision not to discharge Ziegler, followed by his June 1980

_________________________________________________________________

2 See, e.g., Brown v. Bryan County, 67 F.3d 1174, 1183-85 (5th Cir.

1995) (municipal liability based upon decision by sheriff to hire deputy

with known record of violence who later committed excessive force vio-

lation in arrest), cert. granted, 116 S. Ct. 1540 (U.S. Apr. 22, 1996) (No.

95-1100); Graham v. Sauk Prairie Police Comm'n, 915 F.2d 1085, 1104

(7th Cir. 1990) (decision by municipal police commission to hire psycho-

logically troubled police officer who later shot arrestee could give rise

to municipal liability if commission aware of psychological problems);

Parker v. Williams, 862 F.2d 1471, 1477, 1480 (11th Cir. 1989) (munici-

pal liability based upon decision of Sheriff to hire jailer with known his-

tory of drug use, mental problems, and indecent exposure who later

raped inmate).

9

decision to return him to street duty, constituted ad hoc policy deci-

sions by an official having final policy making authority with respect

to such personnel matters; that they were made with deliberate indif-

ference to the risks they entailed for local citizens; and that as a proxi-

mate result of these decisions Ziegler was put in a position to and did

rape Jones some ten years later.

The district court, reflecting in a memorandum opinion the general

understanding of Pembaur above outlined as ours, rejected this claim

by summary judgment. Rejection was on the alternative grounds that

as a matter of law on the undisputed material facts: (1) Frye's deci-

sions were not "policy" decisions, but merely discretionary ones not

attributable to the County as its official policy; (2) in any event,

Frye's decisions were not taken in deliberate indifference to the risks

entailed to local citizens; and (3) further, there was not a sufficiently

close causal connection between the decisions and the rape ten years

later to impose liability on the County. J.A. 1154-62 (Memo. op.).

Reviewing the district court's grant of summary judgment de novo,

see Hodge v. Jones, 31 F.3d 157, 163 (4th Cir. 1994), we affirm,

though on somewhat different reasoning.

The district court addressed the question whether Frye's two deci-

sions respecting Ziegler constituted County policy and the question

whether they were taken with deliberate indifference as separate ones.

See J.A. 25-30. Addressing them so, the court first noted, rightly, that

not every decision made by a policy maker in a particular area of gov-

ernment necessarily involves "policy" choice, see Pembaur, 475 U.S.

at 481-82. And, the court then concluded, without elaboration, that

Frye's decisions were merely "ad hoc disciplinary" ones taken in "ex-

ercise of his discretion" which "had no general applicability," hence

did not constitute "actionable official policy." J.A. 26.

Without intending rejection of the district court's first ground of

decision, we turn to the question of whether the actions at issue were

taken with deliberate indifference. The district court concluded upon

extensive review of the record that, as a matter of law, that could not

be found. We agree with that conclusion, and believe that it is upon

that basis that the prior conclusion that the decisions did not constitute

official County policy should be rested. That seems the clear import

10

of City of Canton, where the Court indicated that a municipal decision

that is not itself unconstitutional can only be found to involve the

deliberate choice between alternatives that is the hallmark of "policy"

if it was taken by the policy maker with deliberate indifference to the

rights of potentially affected citizens. 489 U.S. at 389 ("Only where

a [municipality's conduct] evidences a `deliberate indifference' to the

rights of [municipal] inhabitants can such a shortcoming be properly

thought of as a city `policy or custom' that is actionable under § 1983").3

As indicated, we agree with the district court's conclusion that on

the summary judgment record, Frye's decisions respecting Ziegler's

retention and duty status following the Forsythe incident back in 1979

and 1980 could not be found to reflect deliberate indifference. The

district court properly emphasized as the principal basis for its conclu-

sion the results of the internal police investigation of the incident

undertaken under Frye's direction.

Specifically, the court relied on the following undisputed facts.

Following an internal department investigation by two officers desig-

nated for the purpose, their report, essentially reflecting the facts out-

lined in Part I of this opinion, was submitted to the State's

Attorney's Office for consideration of filing rape charges against

Ziegler. The State's Attorney declined to prosecute, for the reason,

as officially reported to then-Chief Frye, that because of the absence

of any signs of trauma or physical injury and the arguable indicia of

consent, he thought the evidence not sufficient to justify the criminal

charge. With this prosecutorial decision in hand, Frye made the deci-

sion to discipline but not discharge Ziegler and, after a six-month

interval, to return him to street duty.

We agree with the district court that on those undisputed facts,

Frye's decisions could not be found to be the result of deliberate

indifference. With the benefit of hindsight, they were clearly unfortu-

_________________________________________________________________

3 The deliberate indifference requirement is not related to the degree of

fault (if any) that may be an element of the ultimate constitutional viola-

tion at issue in this type situation, but exists as a necessary fault basis for

imposing direct, not vicarious, municipal liability for any constitutional

violation by municipal employees that is caused by such policy deci-

sions. See City of Canton, 489 U.S. at 388 & n.8.

11

nate, might perhaps be thought imprudent, or even be found legally

negligent, but that does not suffice; only decisions taken with deliber-

ate indifference to the potential consequences of known risks suffices

to impose municipal liability on the basis that such decisions consti-

tuted official County "policy." See City of Canton, 489 U.S. at 388

& n.7 ("deliberate indifference," rather than "gross negligence" of

policy maker required to impose municipal liability for policy maker

decisions not themselves unconstitutional). That, as indicated, could

not, as a matter of law, be found here.

In any event, we also agree with the district court's alternative

ground of decision: that Frye's 1979 and 1980 decisions respecting

Ziegler's retention and duties could not, as a matter of law, be found

the sufficiently direct cause of Ms. Jones' rape by Ziegler some ten

years later. The causation requirement for imposing municipal liabil-

ity for policy maker decisions not themselves unconstitutional is a

stringent one deriving from the necessity to avoid the effective, but

forbidden, imposition of vicarious liability on municipalities. See

Monell, 436 U.S. at 692-94 (municipal liability imposed only when

"execution of . . . policy . . . inflicts the injury"). The policy must be

"the moving force" behind the ultimate violation, Polk County v.

Dodson, 454 U.S. 312, 326 (1981); there must be an "affirmative

link" between the policy and the violation; mere but-for causation will

not suffice, Tuttle, 471 U.S. at 823. As we have put it: the challenged

policy decision must be one that made the ultimate violation "`almost

bound to happen, sooner or later', rather then merely `likely to happen

in the long run.'" Spell, 824 F.2d at 1391.

We agree with the district court that the causal link between Frye's

decisions in 1979 and 1980 not to discharge Ziegler outright and

Ms. Jones' rape by Ziegler in 1990 is simply too attenuated to satisfy

that stringent causation requirement. Ms. Jones points out that if

Ziegler had been discharged then, he would never have had the oppor-

tunity that later arose to rape her. But, as indicated, mere cause-in-fact

does not suffice to establish the required affirmative link. If that were

the test, every depredation of this sort would give rise to municipal

liability, for every § 1983 claimant harmed by such employee conduct

could "point to something the [municipality] `could have done' to

prevent the unfortunate incident." City of Canton, 489 U.S. at 392.

Ms. Jones further suggests that the Forsythe incident and her rape ten

12

years later were merely the tip of the iceberg; that there must have

been other incidents involving Ziegler of a comparable nature that

revealed the true inevitability of her rape once Ziegler was kept on the

force in 1979. Assuming such incidents would have strengthened

proof of the requisite cause, it suffices to observe that they do not

appear in this record, and cannot of course be assumed. So far as the

record shows, Ziegler was kept on the force following a sexual inci-

dent in 1979 whose circumstances were thought by the responsible

state prosecutor to be too ambiguous to warrant criminal charges and,

after serving on the force for the following ten years without engaging

in any comparable behavior, he raped Ms. Jones while on duty. We

conclude that, as a matter of law, the link between the decision to

keep him on in 1979 and the constitutional violation ten years later

is too remote to impose liability upon the County under relevant

§ 1983 principles.

B.

Turning to the district court's dismissal by summary judgment of

Ms. Jones' § 1983 claim against Frye in his individual capacity, we

find no error.

While a municipal liability claim based upon a particular official's

attributed conduct and a supervisory liability claim against that offi-

cial based upon the same conduct are not perfectly congruent, see

Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994), each requires proof

both of the official's deliberate indifference and of a close affirmative

link between his conduct and a resulting constitutional violation by a

subordinate. See id.

That being so, the supervisory liability claim against Frye was

properly rejected for the same reasons properly relied upon by the dis-

trict court in rejecting the municipal liability claim.

III.

In No. 95-2966, Ziegler claims reversible error in three district

court rulings: (1) improper jury instruction on the constitutional claim

against him; (2) failure properly to deal with the risk of jury taint by

13

prejudicial media publicity; (3) refusal to ask a requested voir dire

question of potential jurors. We take these in order.

A.

Treating Ms. Jones' § 1983 claim as one alleging a violation of her

Fourth Amendment right not to be subjected to excessive force in the

course of an arrest, Ziegler assigns as error the district court's refusal

to instruct the jury, as requested, that his conduct must be judged

under the "objectively unreasonable/excessive force" standard pre-

scribed in Graham v. Connor, 490 U.S. 386 (1989). This of course

misconstrues the nature of the constitutional claim. Because the harm

inflicted did not occur in the course of an attempted arrest or appre-

hension of one suspected of criminal conduct, cf. Tennessee v.

Garner, 471 U.S. 1, 7-9 (1985), the claim was not one of a Fourth

Amendment violation, but of the violation of the substantive due pro-

cess right under the Fourteenth Amendment not to be subjected by

anyone acting under color of state law to the wanton infliction of

physical harm. See Ingraham v. Wright, 430 U.S. 651, 673 (1977)

(excessive force in paddling school child); Doe v. Taylor Ind. Sch.

Dist., 15 F.3d 443, 450-52 (5th Cir. 1994) (sexual abuse by govern-

ment employee). The district court instructed the jury that if it found

that Ziegler forcibly raped Ms. Jones under the circumstances she

claimed, this would constitute a violation of her constitutional rights

under the Fourteenth Amendment.4 J.A. 380. This effectively defined

the Fourteenth Amendment right to bodily integrity specifically at

issue in this case and accurately stated what had to be found from the

evidence in order to impose liability for its violation. The district

court did not err by refusing to give the requested instruction on "ob-

jective reasonableness."

_________________________________________________________________

4 The court actually instructed that forcible rape would constitute a

deprivation of both Fourth and Fourteenth Amendment rights. J.A. 380

While, as indicated, the evidence did not implicate the Fourth Amend-

ment, the court's technical error in this respect could not have prejudiced

Ziegler.

14

B.

Ziegler next challenges the court's refusal to inquire of jurors

whether any had read either of two newspaper articles containing

allegedly prejudicial material. One article referred to the 1979 For-

sythe incident which the district court had ruled was inadmissible as

evidence in the case against Ziegler. The second article mentioned

that one of Ziegler's impeachment witnesses had failed a lie-detector

test concerning his testimony. Although Ziegler asked the district

court to question the jurors as to whether any had read these articles,

the court, following consideration of the parties' submissions,

declined to do so.

In United States v. Hankish, 502 F.2d 71 (4th Cir. 1974), we held

that

the procedure required by this Circuit where prejudicial pub-

licity is brought to the court's attention during a trial is that

the court must ascertain if any jurors who had been exposed

to such publicity had read or heard the same. Such jurors

who respond affirmatively must then be examined . . . to

determine the effect of the publicity. However, if no juror

indicates, upon inquiry made to the jury collectively, that he

has read or heard any of the publicity in question, the judge

is not required to proceed further.

Id. at 77 (quoting Margoles v. United States, 407 F.2d 727, 735 (7th

Cir. 1969)). Ziegler seizes upon the emphasized language to assert

that the district court erred in failing to make the necessary inquiry.

We disagree.

As Hankish also held, a district court need not raise the question

with the jurors unless under the totality of circumstances there is a

"substantial reason to fear prejudice." Id.; Aston v. Warden, Powhatan

Correctional Ctr., 574 F.2d 1169, 1172 (4th Cir. 1978). And, whether

there is such a "substantial reason," hence a necessity to make inquiry,

is committed in the first instance to the district court's informed dis-

cretion. United States v. Jones, 542 F.2d 186, 194 (4th Cir. 1976);

United States v. Grande, 620 F.2d 1026, 1031 (4th Cir. 1980); see

also Marshall v. United States, 360 U.S. 310, 312 (1959). Here, the

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district court, after consideration of the relevant circumstances, deter-

mined that there was not substantial reason to fear prejudice, hence

no necessity to raise the question with the jury. Reviewing that deter-

mination for abuse of discretion, we find none.

The district court properly noted that only one of the eight jurors

sitting in the case was a resident of the county in which the newspa-

pers were circulated; that the court had more than once admonished

the jurors that they should avoid media publicity about the trial; and

that there was no indication before the court that those admonitions

were not being obeyed. J.A. 325-27. It was further manifest from

materials before the court that the articles were only published on the

last day of trial after all the testimony had been received and that they

were not prominently featured as headline items or in sensational

terms but as relatively short items in the newspapers' interiors

devoted mainly to factual accounts of open proceedings in the case.

Under these circumstances, we cannot find abuse of discretion in

the district court's determination that the risk (1) that any juror had

actually read the articles, and (2) that if any had, their reading had

actually prejudiced Ziegler's case, was not substantial enough to com-

pel raising the question with all jurors. To make such an inquiry, of

course, entails a countervailing risk which district courts must factor

into their discretionary determination: that the existence of possibly

prejudicial publicity about which no juror may have been aware

would now be revealed, or, if already revealed, ascribed a greater sig-

nificance than its contents actually warranted. See Virgin Islands v.

Dowling, 814 F.2d 134, 137 (3d Cir. 1987) ("Moreover, in banc ques-

tioning risks spreading taint where none exists."); cf. United States v.

Sababu, 891 F.2d 1308, 1334 (7th Cir. 1989) (noting countervailing

risk of questioning when jury exposed to material not properly in evi-

dence).

Here, the timing of the publicity's appearance, its inconspicuous

placement in the newspapers, its brief and mainly innocuous content,

the long odds against any jurors having actual access to it, coupled

with the presumption that jurors would properly observe the court's

admonitions to avoid or disregard media publicity about the case,

warranted the district court's discretionary decision to rely on its

admonitions and not risk countervailing prejudice by revealing the

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publicity's existence. See Grande, 620 F.2d at 1031 (no inquiry

required where allegedly prejudicial material appeared in only one

paragraph of 26-paragraph article); id. (admonitions, while not ipso

facto dispositive, properly weighed in calculating risk of prejudice).

C.

Ziegler's final claim of error is in the district court's refusal to ask

one of his requested jury voir dire questions: whether, in deciding the

case, the jurors would follow their consciences rather than the law if

they disagreed with the law.

Ziegler cites no authority for the proposition that this particular

question must, if requested, be put to a civil jury (presumably in all

cases, since it has no evidence-specific relevance). None of the cases

he cites as authority dealt with this broad, general question, nor with

questions even roughly comparable to it in their generality. The form

of voir dire questions to be submitted under Fed. R. Civ. P. 47(a) (as

under parallel Fed. R. Crim. P. 24(a)) is committed to the discretion

of the district courts and there is of course no compulsion to ask every

question requested by counsel. United States v. Robinson, 804 F.2d

280, 283 (4th Cir. 1986) (under parallel criminal rule). Abuse of dis-

cretion in declining to ask a particular question occurs only if the fail-

ure hinders a party's ability to make reasonable use of its challenges.

United States v. Brown, 799 F.2d 134, 136 & n.3 (4th Cir. 1986)

(abuse only where party "denied the right to some surface information

about prospective jurors which might furnish a basis for challenge").

That surely cannot be said about the refusal to ask this broad, general

question, particularly where, as here, the general substance of the

question was implicit in others that were asked: whether there was

"any reason that I have not covered . . . that you feel would affect

your ability to be an impartial juror;" whether "anyone . . . has any

religious or moral scruples that would affect your ability to . . . serve

as a juror in this case." J.A. 56, 57.

Accordingly, the district court did not abuse its discretion in declin-

ing to ask this requested question of the jurors.

In No. 95-2882: AFFIRMED

In No. 95-2966: AFFIRMED

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