Peterson v. City of Fort Worth, Tex.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 17, 2009

No. 08-10258 Charles R. Fulbruge III

Clerk

KEVIN SCOTT PETERSON

Plaintiff - Appellant

v.

CITY OF FORT WORTH, TEXAS

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before JONES, Chief Judge, JOLLY, Circuit Judge, and MONTALVO,* District

Judge.

E. GRADY JOLLY, Circuit Judge:

This case, brought as a § 1983 action, presents the question whether the

City of Fort Worth incurs municipal liability under Monell v. Dep’t of Social

Servs. for the alleged excessive force of two of its police officers. See 436 U.S. 658

(1978). Kevin Peterson, who has alleged that he was seriously injured by Fort

Worth police officers during the course of an arrest, has not sued the officers

individually. Instead, he filed this action against the City of Fort Worth,

alleging that officers violated his Fourth Amendment rights by unlawfully

*

United States District Judge, Western District of Texas, sitting by designation.

No. 08-10258

detaining him and using excessive force to restrain him. The City counters that

the detention and force were reasonable under the Fourth Amendment, and that,

in any event, it is not liable because Peterson cannot show that a policy, practice,

or custom of the City was the moving force behind the violation. The district

court granted summary judgment for the City, finding neither a violation nor

municipal liability. We agree that the evidence does not support a claim of

unlawful detention, but conclude there is sufficient evidence to establish

excessive force. In short, if Peterson had sued the officers, he would have had

a colorable claim. Nonetheless, he chose not to do so and because the evidence

will not support municipal liability for the individual misconduct of the officers,

summary judgment was proper and we affirm.

I.

We begin with a brief summary of the facts, stating them most favorably

to Peterson.

On the night of August 14, 2005, Peterson and his wife Jodi joined some

friends for a birthday party at Riscky’s Bar-B-Que in Fort Worth’s historic

“Stockyards” district. They parked their extended-cab pick-up truck in a parking

lot near an establishment called Billy Bob’s Texas, the self-proclaimed world’s

largest honky-tonk. They had dinner at Riscky’s Bar-B-Que and at about 10:00

p.m. walked over to a dance club, The Cantina Cadillac. There Peterson had six

to eight beers; Jodi had three or four. They stayed until the club closed at 2:00

a.m. Because they were intoxicated, they decided not to drive home but to

instead sleep in their truck. Peterson crawled into the back, and Jodi crawled

into the front.

A Stockyards security guard later observed two persons sleeping in a truck

near Billy Bob’s Texas and called the Fort Worth Police Department. Officers

Samantha Horner and Roger Ballard arrived at the scene at about 5:00 a.m. and

there they found the Petersons sleeping.

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No. 08-10258

Officer Horner tried to wake Peterson up. According to Officer Horner, she

opened the unlocked rear door and shook Peterson’s leg, but he did not respond.

She then tapped her baton on Peterson’s sternum; he kicked at her and told her

to leave him alone. He began to doze, and she reached into the cab. He swatted

at her, and she told him that she was a police officer and that he needed to get

out of the truck. When he began to doze again, she grabbed his arm. Peterson

then hit her on the forearm. Officer Horner alerted Officer Ballard that

Peterson had hit her, and asked for his assistance in getting Peterson out of the

truck.

Peterson testified that at this point he woke up. He recalled:

The first thing I remember upon waking up was I was

being drug out of the truck by my clothes. I was laying

on my back. I actually hit the ground. The door was

opened, and they drug me out. I was sliding on my

back on the ground; and I had two police officers on me

wrestling me to the ground . . . . And then they rolled

me over and put my hands behind my back and put

cuffs on me.

Peterson stated that after he was handcuffed the officers pulled him up by

the cuffs’ chain:

They just jerked me up off the ground and . . . spun me

around [and] slammed me up against the bed of the

truck . . . . [T]here wasn’t any struggle with me . . . .

And then I noticed hey, these are cops . . . . I didn’t say

anything at that point.

According to Peterson, Officer Ballard was cursing at him when he

delivered a hard knee strike to Peterson’s thigh:

The male officer was screaming in my ear. He was on

my left, and he was saying you motherfucker. And he

reared back and kneed me in the thigh with his knee .

. . . [W]hen he did it, I cringed. I go ugh, . . . and I was

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No. 08-10258

. . . immediately enraged because it was totally

unnecessary for him to beat on me when I was in cuffs.1

Meanwhile, Jodi identified Peterson as her husband. At Officer Horner’s

instruction, Jodi remained seated in the cab.

Officer Ballard collected Peterson’s billfold and license. After a

background check produced no record, Officer Ballard uncuffed and released

Peterson. Peterson stated that the whole time his leg was pounding.

The Petersons got back into their truck and waited until about 7:00 a.m.

to drive home. When they got there, Peterson undressed and discovered that his

leg needed medical treatment. At the hospital, doctors diagnosed him with a

ruptured femoral artery. The injury required two surgeries and a hospital stay

that lasted almost two weeks.

Peterson filed this § 1983 action against only the City of Fort Worth,

choosing not to sue Officers Horner and Ballard, whom he alleged violated his

Fourth Amendment rights by unlawfully detaining him and by using excessive

force, specifically the knee strike, to restrain him. The district court concluded

that the detention was lawful and that the force was not excessive under the

circumstances. The district court also concluded that, even if the officers had

violated Peterson’s rights, the City was not liable because Peterson did not show

that a policy, practice, or custom of the City was the moving force behind the

officers’ conduct. The district court entered summary judgment for the City, and

Peterson appeals. For reasons we explain below, we find sufficient evidence to

establish his excessive force claim. Nevertheless, because we conclude that the

1

Officer Ballard denies that he cursed at Peterson and delivered a knee strike to

Peterson’s thigh. He stated that Peterson’s resistance was minimal, and that a knee strike

was unnecessary. Officer Horner, however, observed the knee strike and called it “an

approved distraction technique.” For the purposes of its motion for summary judgment, the

City conceded that Officer Ballard delivered a knee strike to Peterson’s thigh.

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No. 08-10258

record evidence will not support municipal liability for the alleged misconduct

of the individual officers, we affirm judgment for the City.

II.

We review the district court’s grant of summary judgment de novo,

applying the same legal standards as the district court. United States v. Corpus,

491 F.3d 205, 209 (5th Cir. 2007). Summary judgment is appropriate only “if the

pleadings, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c). In determining

whether a genuine issue as to any material fact exists, we must view the

evidence in the light most favorable to the nonmoving party. Corpus, 491 F.3d

at 209. The nonmoving party “must identify specific evidence in the record and

articulate the manner in which that evidence supports that party’s claim.”

Johnson v. Deep East Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293,

308 (5th Cir. 2004). The identified evidence “must be sufficient to sustain a

finding in favor of the nonmovant on all issues as to which the nonmovant would

bear the burden of proof at trial.” Id.

We address the threshold issue of whether officers violated Peterson’s

Fourth Amendment rights before we address the issue of municipal liability.

III.

The Fourth Amendment guarantees the right to be free from unreasonable

searches and seizures. “The Fourth Amendment does not proscribe all state-

initiated searches and seizures; it merely proscribes those which are

unreasonable.” See, e.g., Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing

Illinois v. Rodriguez, 497 U.S. 177 (1990)). The touchstone of the Fourth

Amendment is thus reasonableness. Id. (citing Katz v. United States, 389 U.S.

347, 360 (1967)). We measure reasonableness “in objective terms by examining

the totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 (1996).

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No. 08-10258

Peterson alleges that officers violated his Fourth Amendment rights by

unlawfully detaining him and using excessive force to restrain him. Both

unlawful detention and excessive force implicate the Fourth Amendment’s

proscription against unreasonable seizures. See Terry v. Ohio, 392 U.S. 1, 16

n.16 (1968) (“[W]henever a police officer accosts an individual and restrains his

freedom to walk away, he has ‘seized’ that person.”).

A.

We first address the alleged unlawful detention.

Peterson argues the officers had no lawful justification for entering his

truck and detaining him because they had no reasonable suspicion to believe he

had committed a crime. He contends the officers acted on the mere “neutral

facts” that the Petersons were parked near drinking establishments and were

asleep in their vehicle. Peterson argues that those neutral facts did not support

reasonable suspicion and, without it, the officers had no lawful justification for

detaining him.

The City counters, and the district court held, that the officers’ actions

were reasonable in the light of their articulated concerns for the Petersons’

safety. The City points to deposition testimony in which the officers stated that

they were concerned for the Petersons’ safety. Officer Horner testified that she

tried to wake Peterson not because she suspected criminal activity but because

“for his safety” she needed “to get compliance.” Officer Ballard testified that

they “didn’t know if either one or two of them were simply intoxicated or had

been hit in the head and left there, robbed.”

We face here the kind of officer-citizen encounter that is controlled by

Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court recognized that

“[e]ncounters are initiated by the police for a wide variety of purposes, some of

which are wholly unrelated to a desire to prosecute crime.” Id. at 13. Terry

itself addressed the kind of informal officer-citizen encounters that arise when

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No. 08-10258

officers make on-the-spot observations that require immediate action. Id. at 20.

In assessing the reasonableness of such actions, “there is ‘no ready test.’” Id. at

21. Instead, a court must “‘focus upon the governmental interest which allegedly

justifies official intrusion upon the constitutionally protected interests of the

private citizen.’” Id. at 20-21 (quoting Camara v. Mun. Ct., 387 U.S. 523, 536-37

(1967)). The officer must be able to point to “specific and articulable facts which,

taken together with rational inferences from those facts, reasonably warrant

that intrusion.” Id. at 21. The court then asks: “would the facts available to the

officer at the moment of the seizure or the search ‘warrant a man of reasonable

caution in the belief’ that the action taken was appropriate?” Id. at 22.

In other words, as we have previously stated: “We must attempt to put

ourselves in the shoes of a reasonable police officer as he or she approaches a

given situation and assesses the likelihood of danger in a particular context.”

United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc).

We agree with the district court that the detention was reasonable. The

officers were responding to a call the Fort Worth Police Department received

from a Stockyards security guard. The officers observed two persons, apparently

unconscious, in a truck. It was early in the morning. The doors to the truck

were unlocked. The persons were unresponsive to the officers’ initial attempts

to wake them. The officers had responsibilities for the persons’ safety; it was not

apparent whether the persons “were simply intoxicated or had been hit in the

head and left there, robbed.” The officers thus have pointed to “specific and

articulable facts” that reasonably warranted their action. We think these facts

clearly “warrant a man of reasonable caution in the belief” that the officers’

actions were appropriate, and thus conclude this seizure was reasonable within

the meaning of the Fourth Amendment. Accordingly, Peterson’s detention was

not unlawful.

B.

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No. 08-10258

With respect to the excessive force claim, Peterson argues the knee strike

used by Officer Ballard was unnecessary and excessive. He contends that at the

time Officer Ballard delivered the knee strike to his thigh, Peterson was in full

compliance with all police orders and was offering no resistance. Jodi was seated

in the truck cab and Peterson himself was handcuffed. Of the moments leading

up to the knee strike, Peterson testified:

I can’t recall putting up any resistance; but I was being

attacked by two people. I didn’t know they were police

officers, because I just woke up when they drug me out

of the truck. So I might have been – I know I was

confused, and I didn’t know why I was being attacked.

. . . Is it possible I struggled? I don’t see much – there

wasn’t much of a struggle from me . . . . It happened so

fast there wasn’t any time to struggle. I was rolled over

on my stomach, and both officers had my arms behind

my back; and they put cuffs on me . . . . And one of

them, I believe it was the man, had his knee on my

neck . . . . [A]nd both of them pried my arms behind my

back with brute force and put cuffs on me. And one of

them was sitting on my back, and the other one had his

knee on my neck grinding my face . . . . I couldn’t do

anything. I don’t think I struggled.

The City argues that Peterson was belligerent and the knee strike was

necessary to restrain him. The City points to deposition testimony in which

Officer Horner stated that Peterson kicked at her and hit her forearm when she

first tried to wake him. Officer Ballard stated that outside of the truck Peterson

struggled to escape his grasp. In Officer Ballard’s words, Peterson “still

continued to fail to comply. He wouldn’t stand still. He was pulling away from

us . . . . He [took] an aggressive stance toward us and [did] not [comply] to what

we’re asking him to do.”

Our precedent requires that to establish a claim of excessive force, a

plaintiff must show that, in addition to being seized, he suffered “(1) an injury

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No. 08-10258

that (2) resulted directly and only from the use of force that was excessive to the

need and that (3) the force used was objectively unreasonable.” Ballard v.

Burton, 444 F.3d 391, 402 (5th Cir. 2006) (quoting Flores v. City of Palacios, 381

F.3d 391, 396 (5th Cir. 2004)). There is no dispute that Peterson suffered an

injury and, for purposes of its motion for summary judgment, the City conceded

that Officer Ballard delivered a knee strike to Peterson’s thigh. The question is

whether that knee strike was excessive to the need and therefore objectively

unreasonable. We determine whether the force was excessive “from the

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

of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989); see also Ballard, 444

F.3d at 402.

The district court held that the knee strike was not excessive. The district

court pointed out that the evidence showed that Peterson had been drinking, and

that he hit Officer Horner on the forearm and resisted Officer Ballard’s efforts

to restrain him. The district court observed that Peterson’s own testimony did

not contradict the officers’ testimony that Peterson had resisted compliance;

Peterson stated that “there wasn’t much of a struggle,” but he did not deny

resisting the officers.

We agree that the conflicting testimony does not rule out the possibility

that some force may have been reasonable to restrain Peterson. But the

evidence supporting the reasonableness of the police response is clearly disputed

concerning whether continuing force in the form of a knee strike was justifiable

after Peterson had been handcuffed. Peterson unequivocally testified that

Officer Ballard did not strike him until after he had been handcuffed.

Nor does it escape our notice that the City conceded that Officer Ballard

struck Peterson with his knee, yet Officer Ballard himself denied that he struck

Peterson. Officer Ballard testified that Peterson resisted, but only minimally,

such that a knee strike would have been unnecessary.

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No. 08-10258

Thus, the existing evidence raises unresolved questions about what

occurred. We therefore hold that the evidence creates a genuine issue of

material fact as to whether, from the perspective of a reasonable officer on the

scene, the knee strike was excessive and therefore objectively unreasonable.

Summary judgment as to Peterson’s excessive force claim was therefore

improper.

IV.

The question now becomes whether summary judgment was nonetheless

proper as to the City’s liability for the alleged misconduct of its officers.

A.

We will begin with the basic principles of municipal liability for the

misconduct of its employees in § 1983 actions.

It is well-established that a city is not liable under § 1983 on the theory of

respondeat superior. Monell, 436 U.S. at 694; Johnson, 379 F.3d at 308. A

municipality is almost never liable for an isolated unconstitutional act on the

part of an employee; it is liable only for acts directly attributable to it “through

some official action or imprimatur.” Piotrowski v. City of Houston, 237 F.3d 567,

578 (5th Cir. 2001). To establish municipal liability under § 1983, a plaintiff

must show that (1) an official policy (2) promulgated by the municipal

policymaker (3) was the moving force behind the violation of a constitutional

right. Id.

Official policy establishes culpability, and can arise in various forms. It

usually exists in the form of written policy statements, ordinances, or

regulations, but it may also arise in the form of a widespread practice that is “so

common and well-settled as to constitute a custom that fairly represents

municipal policy.” Id. at 579 (quoting Webster v. City of Houston, 735 F.2d 838,

841 (5th Cir. 1984) (en banc)).

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No. 08-10258

A policy or custom is official only “when it results from the decision or

acquiescence of the municipal officer or body with ‘final policymaking authority’

over the subject matter of the offending policy.” Jett v. Dallas Indep. Sch. Dist.,

491 U.S. 701, 737 (1989). Thus, a plaintiff must show the policy was

promulgated by the municipality’s policymaker. There is no “de facto” final

policymaking authority. See Gros v. City of Grand Prairie, Tex., 181 F.3d 613,

616 n.2 (5th Cir. 1999) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 131

(1988)). Here the parties agree that Chief Mendoza has final policymaking

authority over the Fort Worth Police Department.

Finally, a plaintiff must establish that the policy was the moving force

behind the violation. In other words, a plaintiff must show direct causation. See

Piotrowski, 237 F.3d at 580. This means “there must be a direct causal link”

between the policy and the violation. Id.; see also Johnson, 379 F.3d at 310

(quoting Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir. 1992) (“must

be more than a mere ‘but for’”)).

Peterson acknowledges that there is no official written or otherwise

specially articulated policy upon which he can rely. Nevertheless, he advances

several theories of municipal liability. He alleges that the use of excessive force

by Fort Worth Police Department officers is so common, and well known to the

policymakers, that it constitutes a custom that fairly represents official policy.

In addition, he alleges the City is also liable because it ratified the use of

excessive force in this case and generally failed either to train or supervise its

officers.

B.

Because we can quickly conclude that the City is not liable for any

violation under the theories of ratification or failure to train or supervise, we

address those arguments first.

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No. 08-10258

Peterson alleges the City is liable because Chief Mendoza ratified the

officers’ conduct. He points out that Chief Mendoza determined after

investigation that Officers Horner and Ballard’s conduct complied with the

department’s policies. Peterson cites City of St. Louis v. Praprotnik, 485 U.S.

112 (1988), which acknowledges that “[i]f the authorized policymakers approve

a subordinate’s decision and the basis for it, their ratification would be

chargeable to the municipality because their decision is final.” Id. at 127. But

our precedent has limited the theory of ratification to “extreme factual

situations.” See Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998). Under

that precedent, we cannot say that this case presents an extreme factual

situation. Compare Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985)

(finding ratification in case in which officers “poured” gunfire onto a truck and

killed innocent occupant), with Snyder, 142 F.3d at 798 (refusing to find

ratification in case in which officer shot fleeing suspect in the back). Moreover,

we have also explained that a policymaker who defends conduct that is later

shown to be unlawful does not necessarily incur liability on behalf of the

municipality. See Coon v. Ledbetter, 780 F.2d 1158, 1161-62 (5th Cir. 1986)

(precedent “does not stand for the broad proposition that if a policymaker

defends his subordinates and if those subordinates are later found to have

broken the law, then the illegal behavior can be assumed to have resulted from

an official policy”). Our precedent thus forecloses ratification liability in this

case.2

2

The dissent acknowledges that ratification is “seldom, if ever, found by this court.”

It maintains, however, that Peterson put forth evidence of ratification sufficient to withstand

summary judgment by showing that neither Officer Ballard nor Officer Horner was disciplined

for the use of force or failure to file a “Use of Force Report” following the incident, and by

pointing to Chief Mendoza’s deposition testimony that both officers complied with the City’s

policies and procedures. However, this evidence, viewed in the light most favorable to

Peterson, is insufficient to create a fact issue regarding the City’s policymaker’s ratification

of unconstitutional conduct. In City of St. Louis v. Praprotnik, a case on which Peterson relies,

the Supreme Court emphasized that “[s]imply going along with discretionary decisions made

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No. 08-10258

Peterson also alleges that the City was deliberately indifferent to the

obvious need for training on the risk of injuries from knee strikes. He points to

Officer Ballard’s testimony that he did not “recall being told that there was any

risk of injury from a knee strike” nor that training “may have made a difference”

in his evaluation of the use of force. The failure to train can amount to a policy

if there is deliberate indifference to an obvious need for training where citizens

are likely to lose their constitutional rights on account of novices in law

enforcement. See Brown v. Bryan Co., Okla., 219 F.3d 450, 458 (5th Cir. 2000).

“[U]nder certain circumstances, § 1983 liability can attach for a single decision

not to train an individual officer even where there has been no pattern of

previous constitutional violations.” Id. at 459. But those circumstances are not

present here. We have previously held that to hold a municipality liable for

failure to train an officer, it must have been obvious that “the highly predictable

consequence of not training” its officers was that they “would apply force in such

a way that the Fourth Amendment rights of [citizens] were at risk.” Id. at 461.

Peterson points to no evidence that the City was aware of any risk of injury from

knee strikes, and the City showed that officers otherwise go through extensive

training on the use of force. Particularly in the absence of evidence that the use

of knee strikes had caused serious injuries on previous occasions, Peterson has

by one’s subordinates, however, is not a delegation to them of the authority to make policy .

. . .” 485 U.S. 112, 130 (1988). Additionally, “the mere failure to investigate the basis of a

subordinate’s discretionary decisions does not amount to a delegation of policymaking

authority . . . .” Id. See also Kibbe v. City of Springfield, 777 F.2d 801, 809 n.7 (1st Cir. 1985)

(“The [district] court suggested that the City had ratified defendant Perry’s action by clearing

him and finding that he had acted in accordance with the police department’s policies. We are

unconvinced that a failure to discipline Perry or other officers amounts to the sort of

ratification from which a jury properly could infer municipal policy.”).

The dissent also acknowledges that ratification applies only in “extreme factual

situations.” It maintains, however, that our conclusion that this was not an “extreme factual

situation” is a “factual determination,” which we are not permitted to make. On the contrary,

our conclusion rests on a legal determination that the facts here, even viewed in the light most

favorable to Peterson, do not satisfy the legal standard set out in our ratification caselaw.

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No. 08-10258

presented no material fact question to show that it should have been obvious to

the policymakers that the risk of serious injury was a “highly predictable

consequence” of the failure to train. See Estate of Davis ex rel. McCully v. City

of North Richmond Hills, 406 F.3d 375, 383, 386 (5th Cir. 2005) (deliberate

indifference usually requires “‘at least a pattern of similar incidents in which the

citizens were injured’” (citation omitted), and “narrow” single incident exception

has applied when the court finds a complete failure to train, not just a failure to

train in “one limited area”).3

In a similar vein, Peterson alleges the City was deliberately indifferent to

the need to supervise its officers adequately. Again, for the City to be liable for

failure to supervise, it at least must have been obvious that “the highly

predictable consequence” of not supervising its officers was that they “would

apply force in such a way that the Fourth Amendment rights of [citizens] were

at risk.” Id. at 461. As an example of the department’s failure to supervise,

Peterson points to the fact that Officer Horner failed to fill out a use of force

report, in violation of department policy, after she witnessed Officer Ballard use

force on Peterson. Even assuming this to be true, however, the department did

demonstrate some supervision by conducting a thorough internal affairs

investigation into the incident and into a possible misstatement made in Officer

Horner’s activity report. The department’s failure to reprimand one officer for

3

Though the evidence cited by the dissent may create a factual dispute as to whether

the City’s police officers received sufficient training on the practice and consequences of knee

strikes, “that a particular officer may be unsatisfactorily trained will not alone suffice to fasten

liability on the city . . . .” City of Canton v. Harris, 489 U.S. 378, 390 (1989). Rather, the

“vigorous test” of “deliberate indifference,” Brown, 219 F.3d at 461, is required because a

“lesser standard of fault would result in de facto respondeat superior liability on

municipalities–a result [the Supreme Court] rejected in Monell.” Canton, 489 U.S. at 392.

Here, no reasonable jury could conclude that a risk of injury to citizens was the “obvious,”

“highly predictable consequence” of a lack of knee strike training, as Peterson has not shown

that the City had “sufficient notice” that knee strikes were frequently used, particularly

dangerous, or had previously resulted in injury, much less an injury of the type experienced

by Peterson. Brown, 219 F.3d at 458.

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an instance of faulty recordkeeping would not alone raise a genuine issue of

material fact on whether the obvious and “highly predictable consequence” of the

department’s actions was that citizens’ Fourth Amendment rights would be

violated, and Peterson has otherwise provided no evidence of inadequate

supervision. We find no evidentiary support to submit municipal liability to the

jury on the theory that the department failed to supervise its officers.

Accordingly, the district court properly held on summary judgment that

the City is not liable for any violation under the theories of ratification or failure

to train or supervise.

C.

Finally, we address whether Peterson has presented sufficient evidence to

establish a fact question for municipal liability on the basis that the City

maintained an official policy that was permissive of excessive force. As we have

stated, Peterson must show some evidence to support that an official policy of

the City was the moving force behind the excessive force that violated his Fourth

Amendment rights. Piotrowski, 237 F.3d at 578. He concedes that there is no

written policy supporting his claim of municipal liability. Instead he argues that

a pattern of excessive force in making arrests establishes that the City

maintained an unwritten policy that was permissive of the use of excessive force.

In support, he points to 27 complaints of excessive force between 2002 and 2005.

The legal question thus presented is whether the 27 complaints on which

Peterson relies are sufficient to establish a pattern of excessive force that can be

said to represent official policy.

A pattern is tantamount to official policy when it is “so common and well-

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

579 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en

banc)). Where prior incidents are used to prove a pattern, they “must have

occurred for so long or so frequently that the course of conduct warrants the

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attribution to the governing body of knowledge that the objectionable conduct is

the expected, accepted practice of city employees.” Webster, 735 F.2d at 842. It

is thus clear that a plaintiff must demonstrate “a pattern of abuses that

transcends the error made in a single case.” Piotrowski, 237 F.3d at 582

(citations omitted). A pattern requires similarity and specificity; “[p]rior

indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must

point to the specific violation in question.” Estate of Davis ex rel. McCully v. City

of North Richland Hills, 406 F.3d 375, 383 (5th Cir. 2005).

A pattern also requires “sufficiently numerous prior incidents,” as opposed

to “isolated instances.” McConney v. City of Houston, 863 F.2d 1180, 1184 (5th

Cir. 1989). In Pineda v. City of Houston, 291 F.3d 325 (5th Cir. 2002), we held

that eleven incidents of warrantless entry did not support a pattern of

unconstitutional warrantless entry. In each of those eleven incidents, officers

reported either consent or exigent circumstances. Id. at 329 n.12. We observed

that “[e]leven incidents each ultimately offering equivocal evidence of compliance

with the Fourth Amendment cannot support a pattern of illegality in one of the

Nation’s largest cities and police forces.” Id. at 329.

The district court, relying on Pineda, held that the 27 complaints on which

Peterson relies were insufficient to establish a pattern of excessive force. After

careful examination of the record, we conclude the district court did not err.

Peterson presented evidence that, according to the City’s internal affairs

records, at least 27 complaints of excessive force were filed between 2002 and

2005. Almost all arose from officers’ investigations of what may be called small

crimes; the injuries suffered, however, ranged from minor lacerations to broken

bones. In one incident, officers allegedly stopped a suspect who was riding a

bicycle and, after he had dismounted the bicycle and lay on the ground, beat him

until his face bled and his nose and eye socket were fractured. In another

incident, an officer who detained an individual as a suspect in the burglary of a

16

No. 08-10258

car wash knee-struck him in the back and broke his jaw; that individual turned

out to be, not a suspect, but one of the car wash’s owners. In yet another

incident, officers allegedly punched and beat a suspect until he suffered a head

injury; although the officers claimed that the suspect was carrying a crack pipe,

they were unable to produce the pipe. And finally, in an even more alarming

incident, officers responding to a call alleging tampering with an electrical box

entered an apartment without a warrant and allegedly tased an individual until

he was unconscious and had stopped breathing.

The incidents allege use of force that, if true, would be emphatically

excessive. Nevertheless, assuming their truth, the incidents do not, on the basis

of this record, tell us that the City maintained an official policy of condoning

excessive force. The failure of the evidence is that the plaintiffs have failed to

provide context that would show a pattern of establishing a municipal policy.4

For example, the record does not indicate the size of the Fort Worth Police

Department or how many arrests were made by the department between 2002

and 2005. We have previously indicated that the size of a police department

may be relevant to determining whether a series of incidents can be called a

pattern. Pineda, 291 F.3d at 329 (“Eleven incidents each ultimately offering

equivocal evidence of compliance with the Fourth Amendment cannot support

a pattern of illegality in one of the Nation’s largest cities and police forces.”).

Although the record omits any evidence of the department’s size or the number

of its arrests, the department’s own website indicates that it presently employs

more than 1,500 officers, and that there were more than 67,000 incidents of

4

Twenty-seven incidents in four years, with no context as to the overall number of

arrests or any comparisons to other cities, is not sufficient evidence of a pattern rising to the

level of a policy. The burden of providing a context that would show such a pattern falls on the

plaintiff, not on the City, and Peterson has failed to meet that burden. No reasonable jury

could conclude based on Peterson’s evidence that the City had established a municipal policy

of using or condoning excessive force.

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No. 08-10258

crime in the last year alone. Given the department’s size, and absent any

evidence of its total number of arrests during the same time period, 27 incidents

of excessive force over a period of four years do not reflect a pattern that can be

said to represent official policy of condoning excessive force so as to hold the City

liable for the acts of its employees’ unconstitutional conduct. To hold otherwise

would be effectively to hold the City liable on the theory of respondeat superior,

which is expressly prohibited by Monell. See 436 U.S. at 694.

The record does indicate that for each of the 27 complaints of excessive

force the department conducted an internal investigation, a fact that would

appear to cut against the argument that the City condoned the use of excessive

force. The City itself has relied on the fact that only four of the 27 complaints

were “sustained” after investigation and, indeed, in each of the incidents

described above, the department found the complaint of excessive force either

“not sustained” or “unfounded.” However, that the department itself vaguely

ruled most of its complaints “not sustained” or “unfounded” is no assurance that

these investigations exonerate the City. To the contrary, that only four of the

27 complaints were “sustained” after investigation may tilt in Peterson’s favor.

Nevertheless, even assuming error in the unsustained investigations, the record

as a whole will not support a legal conclusion that the City maintained an

official policy of condoning excessive force.

In sum, the 27 incidents, in the context of this record, do not suggest a

pattern “so common and well-settled as to constitute a custom that fairly

represents municipal policy.” Piotrowski, 237 F.3d at 579.

V.

In conclusion, there was sufficient evidence to establish Peterson’s

excessive force claim. Peterson, however, did not sue the officer or officers who

violated his constitutional rights. Instead he sought to impose liability on the

City of Fort Worth for the misconduct of its employees. In this connection, he

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No. 08-10258

failed to produce evidence to satisfy the demanding standards required by

Monell and its progeny to hold the City liable, all for the reasons we have

detailed in this opinion. Accordingly, the judgment of the district court is

AFFIRMED.

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No. 08-10258

MONTALVO,***** District Judge, concurring in part and dissenting in part.

At issue on review is whether Peterson met his burden, as the non-moving

party to the City’s summary judgment motion, of showing a dispute of material

fact concerning his claims. The majority properly sets forth the standard of

review on summary judgment, noting it should apply the same legal standard

that the district court applied. I CONCUR with the findings in Part III of

majority opinion, supra, that Peterson’s seizure was reasonable within the

meaning of the Fourth Amendment and therefore lawful, but that the evidence

creates a genuine issue of material fact as to whether the knee strike was

excessive and therefore objectively unreasonable, from the perspective of a

reasonable officer on the scene.

However, with regards to the City’s summary judgment motion as to

municipal liability in Part IV of the majority opinion, supra, I believe the

majority holds Peterson to a higher standard than the law requires.

Accordingly, I respectfully DISSENT as to the majority’s finding there is no

genuine issue of fact for trial concerning municipal liability.

I.

The court’s task is to review the evidence and resolve all reasonable doubts

and inferences in a light most favorable to Peterson, as the non-moving party.

Richardson v. Oldham, 12 F.3d 1373, 1381-82 (5th Cir. 1994); McKee v. City of

Rockwall, Tex., 877 F.2d 409, 410 (5th Cir. 1989). Peterson only needs to present

“some evidence of . . . a policy in order to survive the [City’s] summary judgment

motion.” See McKee, 877 F.2d at 414-15. That is, Peterson need only present

sufficient evidence to show there is a dispute of fact regarding the City police

department’s policy on use of force “that a reasonable jury could return a verdict

for the nonmoving party.” Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th

*****

United States District Judge, Western District of Texas, sitting by designation.

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No. 08-10258

Cir. 1992). Accordingly, such evidence must have probative weight. See McKee,

877 F.2d at 415. Nonetheless, only “a complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all other

facts immaterial.” Id. at 414-15 (citing Celotex Corp. v. Catrett, 477 U.S. 317,

322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)) (emphasis added). This

court has made clear: “[c]redibility determinations have no place in summary

judgment proceedings.” Richardson, 12 F.3d at 1381-82.

II.

A.

In the first instance, the majority summarily dismisses Peterson’s

argument and the evidence concerning liability based upon a theory of

ratification. The majority states a theory of ratification depends upon “extreme

factual situations,” but does not explain how it reached the determination that

Peterson failed to present an extreme factual situation, given the existing

disputes of material fact.

Evidence on this issue included 1) Chief Mendoza’s deposition testimony,

in which he states both Officer Ballard and Officer Horner acted in conformity

with the City’s policies and procedures; and in which he states if there is no

discipline for excessive force, the lack of discipline could be construed as tacit

approval of the use of force; 2) Officer Horner’s deposition testimony, in which

she states she believes she saw Officer Ballard knee strike Peterson; and 3)

Officer Ballard’s deposition testimony that a knee strike against Peterson would

have been excessive force because Peterson was under control; not a threat; and

not engaged in any behavior that justified a knee strike.

The City argues it is not liable under a theory of ratification because the

officers were faced with an aggressively resisting individual and offers its

written policies in support.

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No. 08-10258

The district court’s dismissal of this basis for municipal liability, and the

majority’s summary affirmance of that decision, is problematic based upon the

applicable burdens of proof for the respective parties. As the non-moving party,

Peterson’s burden of proof at summary judgment is sufficient evidence, which

creates a dispute of material fact. See Fraire, 957 F.2d at 1273. It is true that

ratification is seldom, if ever, found by this court. As the majority points out, a

policymaker who defends conduct later shown to be unlawful does not

necessarily incur liability on behalf of the municipality; nonetheless, this does

not foreclose the possibility that the municipality may incur liability. “If the

authorized policymakers approve a subordinate’s decision and the basis for it,

their ratification would be chargeable to the municipality because their decision

is final.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 926,

99 L. Ed. 2d 107 (1988).

The majority distinguishes between the instances in which the court has

permitted a party to succeed on a theory of ratification, and this case, noting this

is not an “extreme factual situation.” Even though there is a dispute of facts

concerning what exactly occurred between Officers Ballard and Horner and

Peterson, the majority holds the factual situation is not extreme enough for a

theory of ratification to apply. The majority is making a factual determination.

It is for the jury to make factual and credibility determinations. See Richardson,

12 F.3d at 1381-82.

Here, Peterson showed: at least two people, he and Officer Horner,

believed Officer Ballard performed a knee strike; Officer Ballard did not believe

a knee strike was warranted under the circumstances; and neither officer was

disciplined for the incident, despite the department’s policy that when an officer

uses force or sees another officer use force, a Use of Force report is to be filled

out.

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No. 08-10258

City of Forth Worth Police Department General Order 306.09 requires

“any use of force incident during which the level of force used was hard open-

hand control and restraint or greater shall be reported and identified as ‘Use of

Force by an Officer.’” The General Order specifically directs an officer to “report

the full details of the use of force in related arrests or offense reports. If no

arrest or offense report is to be completed, the details shall be reported in an

incident report.”

At the time of completing the Use of Force report, “[a] separate inter-office

correspondence will be completed by the supervisor and forwarded through the

officer’s chain of command to be reviewed and filed by the bureau.” These

reports are supposed to be completed at the end of an officer’s watch and are to

be entitled “Use of Force” and routed to the captain for management review. The

captains are charged with reviewing the Use of Force reports “to determine if

there is a need for changes in departmental procedures or additional training

for the officer” (emphasis added).

Officer Horner testified she saw Officer Ballard use force – a knee strike

– which, according to the City’s evidence, is hard open-hand control. Yet, she

never filled out a Use of Force report. When it was discovered she never filled

out a Use of Report, she was not disciplined for this failure. Chief Mendoza

described Officer Horner’s failure to fill out the Use of Force report as “ancillary”

to the investigation of Peterson’s allegations. This is problematic for several

reasons.

According to evidence presented by the City, such Use of Force reports

eventually are supposed to be forwarded to the Training Division for review.

According to General Order 306.10, a Training Division captain is tasked with

ensuring appropriate training is developed and offered annually. If the police

department is not enforcing the self-reporting of use of force, despite the fact

that they have an officer who states she believes she saw force used, it is

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No. 08-10258

essentially condoning the failure to report. This, in turn, ensures there will

never be an assessment of whether training on excessive force should be

conducted with greater regularity or in a different manner. Coupling these

circumstances with the Defensive Tactics Manual of the Fort Worth Police

Academy’s maxim, “If it makes you look good, but it’s not in your report, it didn’t

happen,” there appears to be a tacit understanding that if an officer does not

raise the issue, he or she may avoid it all together.

The district court attempted to address the issue of Officer Horner’s failure

to report the use of force when it dealt with Peterson’s failure to supervise

argument. The district court stated the Internal Affairs investigation dealt with

the deficiency and relied on Sergeant Decker’s admonition to Officer Horner to

be more diligent in the accurate documentation of her work product.

Unfortunately, the district court was mistaken as to why Officer Horner was

admonished.

The Internal Affairs investigation dealt with the falsification of Officer

Horner’s worksheet, including her notations regarding whether Peterson drove

away after the encounter. This additional allegation of falsifying her worksheet,

which was added during the course of the Internal Affairs investigation, was

actually a recrimination against her mistake regarding whether Peterson stayed

at the scene, left the scene, or called a friend. It had nothing to do with Officer

Horner’s failure to report Officer Ballard’s use of force. If anything, the

admonition looks more like an unscrupulous tactic meant to strong-arm a rookie

officer into changing her statement by turning up the heat on her.1

Drawing all reasonable inferences in favor of Peterson based upon the

evidence presented, Peterson has created a question of fact to be submitted to

the jury regarding ratification. The City offers no evidence that renders all

1

Officer Horner received her commission as a Fort Worth Police Officer in December

2004, approximately nine months prior to the alleged incident.

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No. 08-10258

material facts indisputable. Defeating a summary judgment motion only

requires the non-moving party to present sufficient evidence, which creates a

dispute of material fact. Because there is sufficient evidence to create a dispute

of material fact, I believe the issue of ratification should be submitted to the

jury.

B.

The majority correctly points out municipal liability can be based upon a

failure to train if there is deliberate indifference to an obvious need for training,

which could impair citizens’ constitutional rights. The majority sets forth that

municipal liability on a failure to train theory requires that it be obvious that

“the highly predictable consequence of not training” its officers was that they

“would apply force in such a way that the Fourth Amendment rights of [citizens]

were at risk.” Brown v. Bryan Co., Okla., 219 F.3d 450, 461 (5th Cir. 2000). The

majority asserts that Peterson points to no evidence that the City was aware of

any risk of injury to knee strikes, and instead relies on to the City’s contention

it conducts extensive training on the use of force. The majority concludes

Peterson has failed to present a question of material fact concerning whether it

was or “should have been obvious to the policy makers that the risk of injury was

a ‘highly predictable consequence’ of the failure to train.”

Again, the majority imposes a burden on Peterson, which exceeds what the

law requires of him. Peterson need only present sufficient evidence, which

creates a dispute of fact concerning the City’s failure to train. In evidence are:

1) Officer Horner’s deposition testimony in which she stated she

could not recall training about the adequate use of force for a given

set of circumstances;

2) Officer Ballard’s deposition testimony, in which he could not

recall receiving training on differences between passive and active

resistance in relation to the amount of force used; in which he stated

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No. 08-10258

an officer cannot evaluate risk of injury if there is no training; in

which he stated he could not recall being told there was a risk of

injury when using a knee strike; in which he stated he was written

up previously for tasering an individual, who was handcuffed, but

he was not told why the act was dangerous; in which he stated he

was never retrained on the use of tasers; and in which he stated if

he had knowledge regarding risk of using knee strikes, it would

make a difference in his calculation of use of force;

3) Chief Mendoza’s deposition testimony, in which he stated he was

the overall authority for training and approving training policies of

the department; in which he stated an officer is less likely to hit a

person in a place that will cause more damage if they understand

the reasons for doing so; and in which he stated continuing

education does not include training on knee strikes, to his

knowledge;

4) Records reflecting allegations of excessive force;

5) A summary chart, detailing allegations of excessive force;

6) Reports of the chain of command;

7) An affidavit of an instructor at the police academy, which states

the City provides training in use of force at the police academy and

subsequently every twenty-four months, in the form of continuing

education, which exceed the minimum training requirements

imposed by the state;

8) Officer Horner’s training record; and

9) Officer Ballard’s training record.

In reviewing this evidence, the court’s task is only to determine whether

there is a factual dispute regarding the City’s failure to train. The evidence

shows officers undergo preliminary training at the police academy, which

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No. 08-10258

includes use of force training, and continuing education training on use of force.

Executive Chief Deputy Kneblick’s affidavit states each police officer is trained

in the application of the General Orders, which includes a General Order on the

use of force, and is required to comply with the General Orders.

The more disconcerting pieces of evidence offered by the City, however, are

Officer Horner’s and Officer Ballard’s training records. While Officer Horner’s

record shows she received continuing education on the use of force, Officer

Ballard’s record reveals he has not. Peterson has shown through Officer

Ballard’s testimony that he was disciplined on a prior occasion for using a taser

on a handcuffed individual. Officer Ballard’s training record does not reflect any

retraining on use of a taser, despite his inappropriate prior use. More critically,

since the time Officer Ballard joined the police department, he has never taken

a course directed specifically at the use of force, according to his training record.

Peterson contends his showing that neither officer could remember

whether they received use of force training demonstrates the training is

inadequate. Chief Mendoza testified he did not know how often knee-strike

training occurred. While both Officers Ballard and Horner testified they were

taught the distractionary technique of the knee strike, neither was taught the

possible physical consequences of using such a strike. Chief Mendoza, the

overall authority for approving training and the content of the Defensive Tactics

Manual, testified that training concentrated on where to strike, rather than the

repercussions of striking an individual in a particular place. He stated training

probably covered that “a little bit.” He agreed during his deposition testimony

that an officer would be less likely to strike in a place that would cause serious

damage if the officer knew the consequences, and he conceded the type of injury

Peterson received could result from a knee strike.

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No. 08-10258

When this evidence is viewed in light of the previous discussion concerning

the Use of Force reports, see supra Part II.A of this dissent,2 reasonable minds

could infer a failure to train and deliberate indifference. The policymaker, Chief

Mendoza, is hardly concerned with training officers on the potential for harm.

It is axiomatic that if an officer does not know the risk of injury in applying a

knee strike, there is no way he can appropriately assess when to use it based

upon the totality of the circumstances. This would be true of any of the use of

force techniques because officers receive no training on the repercussions of

using such techniques, as Chief Mendoza testified. Hence, it is clear Peterson

has created a dispute of material fact regarding the City’s failure to adequately

train its officers sufficient to submit to a jury.

C.

Finally, the majority addresses Peterson’s argument the City has a

custom, as evidenced by a persistent, widespread pattern of excessive force

during investigations of “mild crimes,” to which the police department’s chain of

command acquiesces by citing officers for lesser offenses, exonerating them for

use of force, and only mildly disciplining officers who are found to have used

excessive force, which amounts to tacit approval of the use of excessive force.

To demonstrate the existence of a custom or policy, Peterson presents the

following evidence:

1) Chief Mendoza’s deposition testimony, in which he states

allegations of officers’ use of excessive force in the field should be

2

The majority’s assertion that the department’s failure to reprimand Officer Horner

for “an instance of faulty recordkeeping” does not raise a genuine issue of material fact on

whether the obvious and “highly predictable consequences” of this failure would lead to the

violation of citizens’ Fourth Amendment rights ignores the purpose of the process of reporting

the use of force. The express purpose of the Use of Force reports is “to determine if there is

a need for changes in departmental procedures or additional training for the officer.” If the

department does not enforce the reporting requirement, it essentially bypasses the procedure

meant to inform it of what, if any, use of force training is necessary to ensure citizens’

constitutional rights are not violated.

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No. 08-10258

investigated; in which he states making an allegation of excessive

force against other officers is a defensive measure to defend oneself

and, ultimately, the officer may not be willing to come forward; in

which he states he is the ultimate disciplinarian; in which he states

a police officer may use force to effectuate an arrest/detention even

if there is no legal basis for the arrest/detention (which the district

court said was only an opinion and does not affect official policy); in

which he discusses an incident where officers illegally entered an

apartment and tasered an individual in the closet covered with a

black trash bag three to four times until he was unconscious and

concludes it was not excessive force;

2) A summary chart which shows 27 allegations of excessive force

over a five-year period, which were actually investigated by Internal

Affairs–where only four complaints were sustained;

3) An interview of a third-party witness, who saw police chase down

a man on a bicycle and beat him until his face bled–where the

charge of excessive force was not sustained against one officer and

unfounded for others;

4) An interoffice correspondence from Executive Deputy Chief

Kneblick, reversing a finding of “not sustained” by the rest of the

chain of command, in one incident where an off-duty officer struck

two individuals on the backs of their heads with his gun; and

5) A summary statement, where a police officer knee-struck a man

who was laying on the ground because he tensed, even though the

man was actually the owner of the car wash where the police officer

was investigating a burglary, which resulted in the officer breaking

the owner’s nose–the allegations of excessive force were deemed

unfounded.

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No. 08-10258

Peterson contends these allegations put the City on notice that there is an issue

with its officers using excessive force and it is so common and well-settled that

it represents a policy, which is tacitly condoned by the chain of command, up

through the Chief of Police.

To demonstrate the City has a policy which expressly denounces the use

of force, the City offers the following evidence:

1) General Orders regarding the use of excessive force;

2) An affidavit of Executive Deputy Chief Kneblick, who states the

General Orders are provided to all police officers of the police

department regarding the use of force, and the police department

supports this policy through training and discipline;

3) The claim there is no evidence the police department officials

acquiesced to excessive force;

4) The City conducted a rigorous investigation of Peterson’s

complaint; and

5) Peterson’s summary chart, which showed 4 findings of excessive

force, no discipline in 18 investigations, and 1 case, which involved

the use of a knee strike.

The majority initially couches the inquiry as “whether Peterson has presented

sufficient evidence to establish a fact question for municipal liability on the basis

that the City maintained an official policy that was permissive of excessive

force.” In the next instance, however, the majority couches the inquiry as a

question of law, suggesting “[t]he legal question thus presented is whether the

27 complaints on which Peterson relies are sufficient to establish a pattern of

excessive force that can be said to represent official policy.”

It is not our duty to address the latter question. The appropriate question

is whether Peterson has presented sufficient evidence to create a dispute of

material fact about the existence of a widespread pattern of excessive force

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No. 08-10258

condoned by the City. The Supreme Court made clear that “[o]nce those officials

who have the power to make official policy on a particular issue have been

identified, it is for the jury to determine whether their decisions have caused the

deprivation of rights at issue by policies which affirmatively command that it

occur, or by acquiescence in a longstanding practice or custom which constitutes

the ‘standard operating procedure’ of the local governmental entity.” Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct. 2702, 2724 (1989)

(citations omitted). It is for the jury now to determine whether 27 instances of

excessive force allegations are reflective of a standing operating procedure that

may have caused the deprivation of Peterson’s rights.

The majority, like the district court, relies on this court’s decision in

Pineda v. City of Houston, 291 F.3d 325 (5th Cir. 2002), and concludes 27

complaints of excessive force are insufficient to establish a pattern of use of

excessive force. It points out that in Pineda 11 incidents of warrantless entry

did not support a pattern of unconstitutional warrantless entry because the

officers in the 11 incidents reported either consent or exigent circumstances,

which was equivocal evidence of Fourth Amendment compliance.

The facts and circumstances in Pineda are readily distinguishable. First,

in Pineda, 291 F.3d at 328, the plaintiff alleged the City of Houston had a

custom of permitting warrantless searches of residences. Peterson’s alleged

custom is much narrower: the use of excessive force in violation of the Fourth

Amendment during investigations of “mild crimes,” to which the police

department’s chain of command acquiesces by citing officers for lesser offenses,

exonerating them for use of force, and only mildly disciplining officers who are

found to have used excessive force, which amounts to tacit approval of the use

of excessive force. Unlike in Pineda, where the alleged municipal custom would

apply to all warrantless searches in any instance, Peterson’s alleged custom

focuses on minor crimes, where the chain-of-command ultimately exonerates or

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No. 08-10258

finds the claim unsustained or issues only mild discipline when the claim is

founded.

Second, Peterson’s proffer of evidence concerning the use of excessive force

as a City custom consists of more than double the number of quantifiable

allegations than were offered in Pineda. In Pineda, the court reviewed the

proffer of 11 alleged incidents, which occurred over a period of more than six

years “in one of the Nation’s largest cities and police forces.” See id. at 329, 331

n.24. Here, Peterson relied on hundreds of pages of reports, which he condensed

into his Summary Chart, over a period from 2001 to 2005.3 This court opined in

Pineda, however, that relying on previous offense reports could lead to the

“practical effect” of “requir[ing] the City to defend ‘cases within cases.’” Id. at

329. While that may be a “practical effect” sometimes, it is not necessarily the

case here.

Here, Peterson alleges not simply that these allegations show a custom of

permitting the use of excessive force. Rather, Peterson contends these

allegations, gleaned from the numerous reports he examined, show the City had

notice of such violations, which were reviewed by the chain-of-command,

evincing a flawed system by which various police officers at different levels of the

chain-of-command could not or did not agree on whether excessive force was

used, which has led to the acquiescence or condonation of the use of excessive

force. Foreclosing the use of such evidence, which might show to the trier of fact

that the City has notice of a problem and chooses to look the other way,

essentially forecloses municipal liability on a theory of “custom.” This is

certainly not the result portended by Monell v. Dep’t of Social Servs., 436 U.S.

658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

3

Two incidents described in the summary chart occurred in 2007.

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No. 08-10258

Third, this case is distinguishable from Pineda because in addition to

producing a quantifiably greater number of incidents 4 to establish the alleged

custom, Peterson offers the police department’s own maxim: “If it makes you

look good, but it’s not in your report, it didn’t happen.” The City’s police officers

are taught this idea at the police academy. The obvious corollary is “if

something is not reported, it will not impact you [the officer].” The circumstances

of Pineda do not evidence a similar understanding of withholding information

for the purpose of avoiding reprimand or investigation.

Finally, Peterson offers the testimony of Chief Mendoza, who conceded he

was the ultimate disciplinarian for police officers in the police department. The

district court determined the City did not have a policy permitting the use of

excessive force in part based on Chief Mendoza’s testimony, when he stated: “I

don’t believe officers can use force against people without . . . there being some

reasonable suspicion or probable cause that a crime has been committed or is

about to be committed.” However, subsequent to stating this opinion, Chief

Mendoza readily stated a police officer may legally use force even if a police

officer does not have a legal right to enter a private residence and make an

arrest.

The Record reflects the following exchange between Peterson’s counsel and

Chief Mendoza during deposition:

4

Such a distinction is made without considering the relative size of the respective

cities and police forces. Obviously, the fact that 27 incidents occurred in a smaller city with

a smaller police department undermines the efficacy of relying on Pineda.

The majority’s suggestion “[n]o reasonable jury could conclude based on Peterson’s evidence

that the City had established a municipal policy of using or condoning excessive force” is

undercut by the very fact that this panel has split on the issue of whether Peterson established

a question of fact concerning municipal liability for purposes of withstanding summary

judgment. “Indeed, the fact that reasonable judges on this court view the evidence differently

suggests that these factual disputes [a]re for the jury to resolve.” Thompson v. Connick, 578

F.3d 293, 314 (5th Cir. 2009) (en banc) (Prado, J., joining).

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No. 08-10258

Q. (By Ms. Hutchinson) If they didn’t have the legal right to be in

the apartment and they didn’t have the legal right to make an

arrest, then they also didn’t have the legal right to use force,

correct?

A. No, ma’am.

Q. That’s not correct?

A. That’s not correct.

The district court dismissed this particular comment as Chief Mendoza’s opinion.

Whether Chief Mendoza actually believes the former or the latter of his

statements are factual and credibility determinations for the jury. The latter

commentary could be construed as the police department policymaker’s

interpretation of the law on the use of reasonable force.

In Pineda there is no indication the chief of police made a statement that

resembled the content of Chief Mendoza’s statement. A reasonable jury could

return a verdict in favor of Peterson if it were to find, as a matter of fact, Chief

Mendoza believes his latter interpretation of the law complies with the strictures

of the Fourth Amendment and he acts in his capacity as chief of the police

department on that belief when he reviews excessive force claims. See Fraire,

957 F.2d at 1273 (“A dispute about a material fact is genuine ‘if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.’”)

(footnote omitted).

The majority further relies on dicta from Pineda, in which this court stated

the size of a police department may be relevant to determining whether a series

of incidents can be called a pattern. While this guidance from Pineda could be

helpful in this case, the fact is there is no evidence in the Record concerning the

size of the City’s police department. In the City’s brief on appeal, it merely

argues there were numerous arrests and detentions made over a five-year

period. The closest the City comes to revealing how many officers are in its

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police department is when it stated in its reply in the district court that there

were “hundreds of thousands of arrests and detentions made over a five year

period by over one thousand (1000) police officers employed by the City.”

However, the City offered nothing for the Record to support this blanket

contention. The absence of any statistical evidence in the Record leaves genuine

issues for trial. The number of incidents Peterson offers could be the highest or

lowest in cities of a comparable size.

The majority nonetheless concludes the City has demonstrated no genuine

issues of material fact regarding a custom condoning the use of excessive force

because the majority augments the Record by undertaking its own data search

on the City’s website.5 The majority has essentially done what the City should

have endeavored to do in moving for summary judgment and did not do. This

is not the court’s duty.

The court’s task is to review whether Peterson has presented sufficient

evidence, not all possible evidence, to create a dispute of material fact concerning

whether the City has a custom of condoning excessive force, despite the City’s

written policies denouncing excessive force. The Record shows 27 allegations of

the use of excessive force, which largely were unsustained by a policymaker who

believes a police officer may use force to effectuate an arrest/detention, even if

there is no legal basis for the arrest/detention. Most critically, the City failed to

offer any competent evidence to demonstrate what those 27 incidents mean in

light of the number of citizen encounters for a city of comparable size. Hence,

5

The majority’s review of the City’s website presented the following evidence: “[The

City] presently employs more than 1,500 officers, and that there were more than 67,000

incidents of crime in the last year alone.” This led the majority to conclude: “[g]iven the

department’s size, and absent any evidence of its total number of arrests during the same time

period, 27 incidents of excessive force over a period of four years do not reflect a pattern that

can be said to represent official policy of condoning excessive force so as to hold the City liable

for the acts of its employees’ unconstitutional conduct.” A conclusion based upon evidence not

in the Record is simply insufficient to affirm the district court’s grant of summary judgment.

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there remains a dispute of fact regarding whether the City has a custom of

condoning excessive force.

III.

Peterson has presented sufficient evidence to create a dispute of fact

regarding whether the City can be held liable on theories of ratification, a failure

to train, and a custom of condoning excessive force. Because it is the court’s duty

to review whether, in resolving all doubts and inferences in a light most

favorable to the nonmoving party, Peterson has presented sufficient evidence to

create a dispute of material fact regarding the existence of a policy, the district

court’s decision should be REVERSED, and this case should be REMANDED for

trial.

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