Thomas v. Chattanooga Cty

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0061p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiffs-Appellants, -

JOHN ERIC THOMAS, and wife, HEATHER THOMAS,

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No. 03-6308

v.

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CITY OF CHATTANOOGA, TENNESSEE, -

Defendant-Appellee. -

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Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 02-00228—R. Allan Edgar, Chief District Judge.

Argued: November 4, 2004

Decided and Filed: February 9, 2005

Before: COLE and ROGERS, Circuit Judges; COHN, District Judge.*

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COUNSEL

ARGUED: Robert J. Shockey, Nashville, Tennessee, for Appellants. Phillip A. Noblett, OFFICE

OF THE CITY ATTORNEY, Chattanooga, Tennessee, for Appellee. ON BRIEF: Robert J.

Shockey, Nashville, Tennessee, for Appellants. Phillip A. Noblett, Michael A. McMahan, Jennifer

T. Flowers, OFFICE OF THE CITY ATTORNEY, Chattanooga, Tennessee, for Appellee.

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OPINION

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R. GUY COLE, JR., Circuit Judge. Plaintiffs-Appellants, Eric and Heather Thomas, bring

this appeal following the district court’s grant of summary judgment in favor of the City of

Chattanooga’s Police Department in a municipal liability action under 42 U.S.C. § 1983. The

appellants claim that the Chattanooga Police Department had a policy, custom, or practice of

condoning the use of excessive force against suspects. For the reasons discussed below, we

AFFIRM the decision of the district court.

*

The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by

designation.

1

No. 03-6308 Thomas, et al. v. City of Chattanooga, Tennessee Page 2

I.

A. The Shooting

On May 28, 2002, at approximately 6:45 p.m., one of Eric Thomas’s neighbors called the

police to report a disorder at Thomas’s home, because Thomas and his father had been loudly

arguing. When the police arrived, however, the dispute had been resolved. Later that night, at

around 11:30 p.m., Thomas was driving home from a friend’s house when the muffler and exhaust

pipe fell off his truck. Thomas became upset and continued to drive home, dragging the muffler and

exhaust pipe on the street and squealing his tires as he entered his driveway. Thomas entered his

house, and he noticed that some of the firearms from his gun collection had been moved from where

he left them earlier that day. He went out his side kitchen door, yelling to his wife, Heather, who

was next door at her parent’s house, “[w]here’s all the guns?” She yelled back that his mother had

moved them. Heather then returned home, found the guns, and placed them on the kitchen table.

Meanwhile, a neighbor called the police to report a domestic disorder and told the dispatcher

that a man and woman were screaming at each other. Officer Abernathy (who knew nothing of the

earlier domestic disorder call) was first to respond, and was told by the dispatcher that there was “a

guy riding up and down the street in a truck hollering and screaming, burning rubber in the street,”

and that the man had a baseball bat. Upon arriving at the neighborhood, Officer Abernathy was told

by an elderly man in the street that Thomas’s house was the scene of the domestic disorder. The

officer walked toward Thomas’s house and heard two people screaming at each other from inside

the house. He radioed for backup and then continued to walk toward the porch. Dogs were barking

in the backyard as he entered the porch and he could see into the kitchen through a window in the

top half portion of the door.

Officer Abernathy saw a man and woman (Thomas and his wife) facing each other, but he

could not hear what they were saying. According to the officer, the man was facing a hallway and

the woman was next to the kitchen cabinets. He observed two rifles on the kitchen countertop and

saw that the man had a handgun in each hand. The officer saw the man “take a staggered step with

his left foot” towards the hallway, and the woman reach for the kitchen door, presumably to unlock

it. Officer Abernathy then saw the man begin to turn towards the woman. At this point the officer’s

vision was partially obstructed. In his deposition, officer Abernathy stated that “[w]hen Mr. Thomas

[was] turning to his right, I lost sight of the gun in his left hand which I felt traveled up to a point

at her.” Officer Abernathy believed that the man and woman had some sort of exchange, and then

he saw “Mrs. Thomas start to back up and it looked like she had her hands down to her side.”

Officer Abernathy claims that the man swayed in the direction of the woman and he saw “an almost

surprised expression on her face.” At that point, officer Abernathy claims that “there was no doubt

in [his] mind, based on her expression and her body language, that she was in imminent danger,”

and that he was in secondary danger if the man saw him through the window, or knew of his

presence because of the loud barking by the dogs. Based on his belief that Eric Thomas was an

immediate threat, the officer fired seven continuous rounds through the glass in the kitchen door at

Thomas’s left arm. Thomas and his wife both claim that they were merely putting away the guns

and that Thomas had started to walk away from his wife when he was shot.

Officer Abernathy does not believe that he announced himself as a police officer before the

shooting because he did not think there was enough time. It is unclear whether either Thomas or

his wife saw the officer on their porch. Officer Abernathy also stated that he did not stop to

reevaluate the scene after firing one or two shots because he did not see Thomas drop the guns and

thus he believed that the threat had not been subdued. Thomas was hit with seven bullets in his back

and in his left arm. Thomas survived the injuries, but is now partially disabled.

No. 03-6308 Thomas, et al. v. City of Chattanooga, Tennessee Page 3

B. The Internal Investigation

The Internal Affairs Division of the Chattanooga Police Department, headed by Captain

Janet Crumley, conducted an investigation of the shooting. Based upon her review of Sergeant

Russell’s investigative report, Crumley determined that the shooting was justified. At the time of

the report, Thomas and his wife were unwilling to give Crumley their statements. Crumley noted

the relevant facts in the report, but included that officer Abernathy had issued a verbal warning

through the closed door. Crumley concluded that “Officer Abernathy fired his weapon to protect

Heather Thomas from what he reasonably believed to be an imminent threat of serious bodily harm

or death,” and that “[h]is actions were in compliance with Department Policy.” Crumley’s

determination was reviewed and approved by the Chief of Police. Upon later questioning, Crumley

was told that officer Abernathy might not have announced himself or issued a warning prior to

shooting Thomas. Crumley maintained that the shooting was justified because the facts still

indicated that officer Abernathy perceived Thomas as an immediate threat to his wife. In her

deposition, Crumley was asked how she would decide, hypothetically, ten separate cases that were

each identical to Thomas’s situation, and Crumley responded that she would decide each case the

same way she decided this case.

Eric and Heather Thomas did not sue officer Abernathy in any capacity; rather, they chose

to sue the Chattanooga Police Department under a municipal liability theory. The City of

Chattanooga moved for summary judgment against the Thomases. In response, the Thomases relied

on affidavits from their expert witness, Phillip Davidson, who had experience with police operations.

The City supported its motion with three affidavits from police officials familiar with the

Department’s policies and practices. All of these officials denied the existence of any policy in the

Department condoning the use of unlawful excessive force. The district court determined that the

plaintiffs had not presented a genuine issue of any material fact and granted the City’s motion for

summary judgment.

II.

A. Municipal Liability Under § 1983

We apply a de novo standard in reviewing the district court’s grant of summary judgment.

McClean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Summary judgment is proper

where the movant shows through “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits . . . that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c).

The nonmovant must rebut such a showing by presenting sufficient evidence on which the jury could

reasonably find for him; “[a] mere scintilla of evidence is insufficient” to meet this burden.

McClean, 224 F.3d at 800. “In deciding a motion for summary judgment, this court views the

factual evidence and draws all reasonable inferences in favor of the nonmoving party.” Id.

Section 1983 creates a federal cause of action against state or local officials who deprive a

person of a federal right while acting under the color of state law. 42 U.S.C. § 1983. To prevail in

a § 1983 suit against a municipality, a plaintiff must show that the alleged federal right violation

occurred because of a municipal policy or custom. Monell v. Dep’t of Social Servs., 436 U.S. 658,

694 (1978). A municipality “may not be sued under § 1983 for an injury inflicted solely by its

employees or agents.” Id.

There are at least four avenues a plaintiff may take to prove the existence of a municipality’s

illegal policy or custom. The plaintiff can look to (1) the municipality’s legislative enactments or

official agency policies; (2) actions taken by officials with final decision-making authority; (3) a

policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal

No. 03-6308 Thomas, et al. v. City of Chattanooga, Tennessee Page 4

rights violations. Id.; Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986); Stemler v. City of

Florence, 126 F.3d 856, 865 (6th Cir. 1997); Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir.

1996).

In the present case, the Thomases alleged that the City of Chattanooga had an unwritten

policy, practice, or custom of condoning the use of excessive force against potential suspects. In

Doe, this Court articulated the requirements for a municipal liability claim made on the basis of an

“inaction theory,” where a policy of tolerating federal rights violations is unwritten but nevertheless

entrenched. We stated that, under such a theory, the plaintiff must show:

(1) the existence of a clear and persistent pattern of [illegal activity];

(2) notice or constructive notice on the part of the [defendant];

(3) the [defendant’s] tacit approval of the unconstitutional conduct, such that their

deliberate indifference in their failure to act can be said to amount to an official

policy of inaction; and

(4) that the [defendant’s] custom was the “moving force” or direct causal link in the

constitutional deprivation.

Doe, 103 F.3d at 508.

The City of Chattanooga moved to dismiss the Thomases’ claim on the theory that the

Thomases had failed to present a genuine issue of material fact indicating that the Police Department

had a policy or custom of condoning the excessive use of force. The City relied primarily on three

affidavits from Sergeant Charles Russell, Captain Mike Williams, and Lon Eilders. Sergeant

Russell, of the Internal Affairs Division, stated that there have never been any complaints of

excessive force against officer Abernathy, that the Department did “not have any policy, custom or

practice allowing police officers to use excessive force on any suspect,” and that “no policy-making

official of the City has ever authorized or condoned any policy or custom of using excessive force.”

Captain Williams, who is in charge of the Chattanooga Police Department Training Division, stated

that officer Abernathy received proper training regarding use of deadly force; that to his knowledge,

the City “did not have a policy, custom or practice of training its police officers to use deadly force

on any suspect unless the officer clearly believed deadly force was immediately necessary”; and that

the City has never authorized or condoned excessive force, nor did it fail to train its officers due to

any “deliberate indifference.” Finally, Mr. Eilders, who manages the Accreditation and Standards

for the Police Department, stated that he is “familiar with the customs and practices within the Police

Department as they existed in May of 2002,” and that it did not have a policy, custom or practice

of allowing its officers to use unwarranted excessive force.

In rebuttal, the Thomases presented affidavits from their witness, Phillip Davidson, regarding

the Police Department’s practice of condoning the use of excessive force by its officers. Davidson’s

first affidavit was two pages and the relevant portion in its entirety stated:

Based on my experience with other cities in cases similar to this one, the number of

formal civil cases alleging use of excessive force by police officers filed against the

City of Chattanooga indicates that . . . Chattanooga Police Department uniformed

officers acted within an informal, unwritten policy, practice, or custom wherein the

unlawful use of force–the use of excessive force–was tolerated. In my experience,

this “culture” must necessarily have been known to Chattanooga Police Department

. . . illustrated by the fact that [Crumley] recommended that Officer Abernathy’s

shooting of Mr. Thomas be “...carried as justified.”

A few days later, Davidson submitted a second affidavit, which essentially reiterated his first

affidavit and added that he had reviewed statistical evidence, consisting of some of the complaints

No. 03-6308 Thomas, et al. v. City of Chattanooga, Tennessee Page 5

and civil cover sheets from the forty-five suits filed against the Chattanooga Police Department

alleging use of excessive force since July of 1994. Davidson had not examined the details of any

of these suits beyond merely looking at the complaints. Finally, in a supplemental affidavit,

Davidson stated that he inferred a policy, practice, or custom of condoning excessive force in the

Police Department based on the fact that officer Abernathy was found justified in shooting Thomas,

and that Crumley stated in her deposition that she prepared her investigative report in the

“customary way,” and would have decided the case the same way if she had to do it over again.

Davidson essentially argued that there must have been a policy or custom of condoning excessive

force in the Chattanooga Police Department because there had been several complaints of excessive

force against the Department in the past, and because here, in Davidson’s opinion, officer Abernathy

had violated the Department’s written “use of force” policy and yet his actions were deemed

justified by the Department.

1. The Previous Complaints Against the Department as Evidence of a “Policy”

The district court determined that Davidson’s inference that the Police Department had an

unwritten policy condoning excessive force was conclusory, because Davidson never “set forth the

basis or reasoning behind his opinion.” The civil complaints which Davidson evaluated ranged

from a shooting to a broken fingernail, but Davidson did nothing to inform the court as to whether

most of the complaints were serious or frivolous. Davidson also failed to explain how one could

evaluate the mere number of complaints in a vacuum to come to a conclusion about the

Department’s policies. Moreover, Davidson failed to present any “data upon which the Court could

compare or contrast the number of excessive force complaints made by citizens of Chattanooga

with the number of excessive force complaints in similarly-sized cities or in cities with a similarly

sized police force.” We agree with the district court’s finding that Davidson’s opinion was

conclusory because he did not explain how he drew his conclusions from the list of complaints

made against the Department.

First, appellants argue that the lower court improperly dismissed Davidson’s testimony

because the court disagreed with Davidson’s conclusion that the number of complaints against the

city in and of themselves demonstrated an unwritten policy of condoning excessive force.

Appellants point to a portion of the district court’s opinion which states that “if the Chattanooga

Police Department finds a complaint of excessive force to be justified or well-founded

approximately every 10 months, it obviously does not have a policy of denying all excessive force

claims or sweeping them under the carpet.” Although this type of assumption by a district court

would not be appropriate, given the context of the opinion, it is clear that the court was not

disagreeing with Davidson’s expert opinion; rather, the court was pointing out that the statistics

upon which that opinion was based are meaningless because Davidson did not produce any data

showing what a “normal” number of excessive force complaints would be. Consequently, we find

that the court did not disagree with Davidson’s conclusion; it simply could not accept the basis

behind it.

Next, appellants argue that the court made a negative credibility determination regarding

Davidson–an issue that should have survived summary judgment and gone to a jury. This argument

misunderstands the district court’s opinion. The court did not make a credibility determination

because the issue was not Davidson’s credibility; the issue was whether Davidson could

substantiate his opinion where necessary.

This argument brings us to the crux of appellants’ case. Appellants argue that, based on

Davidson’s vast expertise and experience alone, the district court should have denied summary

judgment because Davidson surmised that there must have been an unwritten policy of condoning

excessive force. Additionally, appellants argue that because this case does not involve a “hard

No. 03-6308 Thomas, et al. v. City of Chattanooga, Tennessee Page 6

science,” the traditional Daubert factors,1 which the courts use to evaluate the reliability of an

expert’s testimony, are not readily applicable.

To some degree, appellants are correct. The Supreme Court has held that the principles

articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), apply to “all

expert testimony,” although the lower courts have flexibility in the application of the factors,

because it may not make sense to apply some of the Daubert factors, such as the rate of error

analysis, to non-scientific testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147

(1999). In this case, appellants believe that because we are dealing with non-scientific testimony,

Davidson may rely solely on his experience to explain the conclusion he drew from the number of

complaints filed against the Police Department, rather than having to explain to the court why and

how he came to those conclusions. An expert may certainly rely on his experience in making

conclusions, particularly in this context where an expert is asked to opine about police behavior.

See FED. R. EVID. 702 advisory committee’s note (2000) (“In certain fields, experience is the

predominant, if not sole, basis for a great deal of reliable expert testimony.”) We need not doubt

whether Davidson is qualified to assess police operations. Indeed, Davidson’s curriculum vitae

suggests that his long career in the fields of criminal justice, the law, and education have all related

to police training and operations.

However, being an expert does not lessen the burden one has in rebutting a motion for

summary judgment. In fact “[i]f the witness is relying solely or primarily on experience, then the

witness must explain how that experience leads to the conclusion reached . . . and how that

experience is reliably applied to the facts. The trial court’s gatekeeping function requires more than

simply ‘taking the expert’s word for it.’” See FED. R. EVID. 702 advisory committee’s note. When

Daubert was remanded back to the Ninth Circuit, the court stated that “[w]e’ve been presented with

only the experts’ qualifications, their conclusions and their assurances of reliability. Under

Daubert, that’s not enough.” Daubert, 43 F.3d 1311, 1319 (9th Cir. 1995). Similarly, in this case,

because Davidson’s affidavits provide no rationale for his conclusions, appellants are asking that

we take their expert’s “word for it.” We cannot. Davidson himself stated that “there’s no bright

line or rule” regarding how many complaints would be excessive, suggesting that an expert would

need to conduct a more qualitative analysis. However, Davidson did not conduct such an analysis,

and instead, in his deposition he merely mentioned a few cases where the courts have let the jury

determine whether the municipality had an unwritten illegal policy. Even then, Davidson offered

no qualitative analysis of those cases and how they were similar to the present case. Therefore,

Davidson’s conclusion, that the Police Department must have an unwritten policy of condoning

excessive force because of the mere number of complaints previously filed against it, is insufficient

to create a genuine issue of material fact on which a jury could reasonably find that such a policy

exists.

2. The Shooting and the Resulting Investigation as Evidence of a “Policy”

Appellants also argue that Davidson partially based his conclusion on the fact that Thomas

was shot in violation of Department policy, and the internal investigation nonetheless determined

the shooting to be justified. There is potentially a real question as to whether officer Abernathy was

justified in shooting Thomas. But this question is not before us. The question here is whether there

was some sort of policy, custom, or practice in the Chattanooga Police Department of condoning

excessive force, and under Doe, such a policy must be shown by a clear and persistent pattern. 103

1

The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-97 (1993) listed

several factors which the lower courts should consider in determining the reliability of scientific evidence, including:

whether the theory can be reliably tested; whether it has been subject to peer review; what the theory or test’s potential

rate of error of is; whether there are standards controlling the test’s operations; whether the theory or test is generally

accepted; and whether the expert conducted the work independent of litigation.

No. 03-6308 Thomas, et al. v. City of Chattanooga, Tennessee Page 7

F.3d at 508. The danger in appellants’ argument is that they are attempting to infer a municipal-

wide policy based solely on one instance of potential misconduct. This argument, taken to its

logical end, would result in the collapsing of the municipal liability standard into a simple

respondeat superior standard. This path to municipal liability has been forbidden by the Supreme

Court. Monell, 436 U.S. at 694; cf. Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S.

397, 410 (1997) (holding that a municipality was not liable for its hiring decision where the

employee later went on to use excessive force against plaintiff because the plaintiff failed to

demonstrate that the municipality directly caused the injury through its own deliberate action).

Thus, without showing more than officer Abernathy’s potentially excessive use of force in this

particular case, Thomas cannot survive summary judgment.

Appellants’ best argument is that the Department has a custom of mishandling

investigations of excessive force complaints. Davidson contends that the shooting of Thomas and

the Department’s treatment of Thomas’s case is itself proof that it had an unwritten policy of failing

to discipline its officers when they use excessive force against suspects. Davidson stated that “[i]n

my opinion, Captain Crumley’s report provides a clear insight into the Chattanooga Police

Department’s ‘customary’ method of preparing excessive force reports,” and that, in his opinion,

officer Abernathy violated the Department’s written “use of force” policy.

It is debatable whether the Police Department properly deemed this shooting “justified.”

However as the district court noted, “[t]he ‘reasonableness’ of a particular use of force must be

judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight . . . the calculus of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments . . .” (quoting Graham v. Connor, 490

U.S. 386, 396-97 (1989)).

All this aside, appellants must show not only that the investigation was inadequate, but that

the flaws in this particular investigation were representative of (1) a clear and persistent pattern of

illegal activity, (2) which the Department knew or should have known about, (3) yet remained

deliberately indifferent about, and (4) that the Department’s custom was the cause of the shooting

here. See Doe, 103 F.3d at 508. Davidson’s analysis focused mainly on the “deliberate

indifference” aspects of this case.

As this Court noted in Doe, deliberate indifference “does not mean a collection of sloppy,

or even reckless oversights; it means evidence showing an obvious, deliberate indifference” to the

alleged violation. Id.; Bd. of County Comm’rs of Bryan County, 520 U.S. at 407 (holding that

deliberate indifference cannot be met by a “showing of simple or even heightened negligence”).

The Doe Court found that even where a school board had some information that one of its teachers

may have sexually abused students in the past and the board failed to remove him before he abused

the plaintiff, the school board could not be found liable for having a policy, custom, or practice of

condoning such abuse because there was no evidence that the school board failed to act regarding

other teachers in similar circumstances; thus there was no evidence of any deliberate pattern. Id.

at 508. Doe makes clear that the plaintiff bears a heavy burden in proving municipal liability, and

he cannot rely solely on a single instance to infer a policy of deliberate indifference.

Despite the extreme circumstances here, appellants have not met their burden of showing

that there is a genuine issue of whether an illegal Police Department policy exists. Appellants’

expert inferred an illegal municipal policy from the Department’s potentially insufficient

investigation of Thomas’s case, just as the plaintiff in Doe attempted to infer an illegal municipal

policy from the school board’s failure to remove the dangerous teacher at issue. Appellants’ expert

did not reach beyond the facts of this case to show any possibility of a pattern. Appellants point

to this Court’s finding in Leach v. Sheriff of Shelby County, 891 F.2d 1241 (6th Cir. 1989), in

support of the notion that deliberate indifference can be demonstrated by a municipality’s failure

No. 03-6308 Thomas, et al. v. City of Chattanooga, Tennessee Page 8

to adequately investigate claims. However, in Leach, this Court was convinced that the

municipality had a policy of deliberate indifference to prisoners’ medical needs based on the fact

that there were several separate instances where the prison failed to investigate prisoner

mistreatment. 891 F.2d at 1246-48 (noting that the lower court found that “at least 14 other

paraplegics had received similar deplorable treatment”). Unlike the plaintiffs in Leach, appellants

have failed to show several separate instances of the alleged rights violation. Furthermore, the fact

that Crumley stated that she would find officer Abernathy “justified” in his shooting if she had to

make the same decision again, does not show a pattern of deliberate indifference that goes beyond

the facts of appellants’ own case. Rather, Crumley’s statement was about a hypothetical situation

that was based entirely on the facts of Thomas’s own case. Therefore, appellants’ argument falls

prey to the problem of collapsing the municipal liability standard into a respondeat superior

standard.

Because Davidson failed to provide any explanation for his reliance on the mere number

of excessive force complaints against the Police Department, the basis of his opinion has been

reduced to the facts of Thomas’s case. These facts fall short of proving deliberate indifference by

the municipality.

III.

For the reasons stated above, we hereby AFFIRM the judgment of the district court.