Brown v. Bryan County

EMILIO M. GARZA, Circuit Judge,

concurring in part and dissenting in part:

Although I concur in most of the opinion of the Court, I dissent from Part VI of the opinion and the judgment as to Bryan County. My disagreement is with the majority’s treatment of the Monell 1 issue — “that a single incident of unconstitutional activity will not suffice to hold a municipality hable under Monell ‘unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which pohcy can be attributed to a municipal pohcymaker[,]’” maj. op. at 1420 (emphasis added)— which is based on our prior opinion in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745 , 754 (5th Cir.1993).

Clearly, Sheriff Moore was a policymaker under Monell; clearly, he hired Reserve Deputy Stacy Burns; clearly, there is sufficient evidence to support a finding that Sheriff Moore was dehberately indifferent in failing to conduct an adequate background investigation. 2 However, one inadequate background investigation, even by a municipal policymaker, is not the “unconstitutional municipal pohcy” of which Monell, Pembaur v. City of Cincinnati, 475 U.S. 469 , 106 S.Ct. 1292 , 89 L.Ed.2d 452 (1986), or City of Okla *1426 homa, City v. Tuttle, 471 U.S. 808 , 105 S.Ct. 2427 , 85 L.Ed.2d 791 (1985), talks. This error, in my opinion, flows from blurring the distinction made clear in Tuttle — “where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the ‘policy' and the constitutional deprivation.” Tuttle, 471 U.S. at 824 , 105 S.Ct. at 2436 (citations omitted) (emphasis added).

I do not agree, therefore, with the majority or with Gonzalez “that the distinction between policies that are unconstitutional, that is, policies that require or compel violations, and otherwise constitutional policies, is ‘metaphysical.’ ” Maj. op. at 1421. The majority incorrectly, in my opinion, follows our opinion in Gonzalez in “recognizing] that a single constitutional decision can constitute an unconstitutional policy if the causal link between the decision and the unconstitutional result is too compelling to ignore,” id., without reconciling the Supreme Court’s instruction in Tuttle that a jury must have “considerably more proof than the single incident” before it can find causation. 3 There is a constitutional difference between a sheriff ordering his deputies to violate citizen’s constitutional rights, see, e.g., Pembaur, 475 U.S. at 484-85 , 106 S.Ct. at 1300-01 (imposing liability for district attorney’s direct order to police officers to violate Fourth Amendment), and one that hires a reserve deputy without conducting an adequate background investigation. See id. at 482 n. 11, 106 S.Ct. at 1299 -1300 n. 11 (plurality opinion) (requiring plaintiff to “establish that the unconstitutional act was taken pursuant to a municipal policy rather than simply resulting from such a policy in a ‘but for’ sense”); see also, City of Canton v. Harris, 489 U.S. 378, 385 , 109 S.Ct. 1197, 1203 , 103 L.Ed.2d 412 (1989) (requiring a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation”); Benavides v. County of Wilson, 955 F.2d 968, 972 (5th Cir.) (requiring plaintiff to show that “the inadequate hiring ... policy directly caused the plaintiffs injury”), cert. denied, — U.S. -, 113 S.Ct. 79 , 121 L.Ed.2d 43 (1992). In my view, Brown failed to establish the constitutional liability of the county. 4 Accordingly, I would affirm the district court in all aspects, except that I would reverse as to Bryan County.

. Monell v. Department of Social Servs., 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978).

. Under Stokes v. Bullins, 844 F.2d 269 (5th Cir.1988), ”[w]e ... require a plaintiff [in cases such as this] to establish actual knowledge of the seriously deficient character of an applicant or a persistent, widespread pattern of the hiring of policemen, for instance, with a background of unjustified violence.” Id. at 275 n. 9. Although the majority does not state explicitly that the jury *1426 could have found that Sheriff Moore actually knew of Burns’ criminal record, because the evidence supports such a finding, I do not disagree with the majority's conclusion that Sheriff Moore was deliberately indifferent.

. Indeed, because Gonzalez eventually was decided on the question of deliberate indifference, the causation question was never firmly resolved. See Gonzalez, 996 F.2d at 754 (stating only that the policy "may have produced or caused the constitutional violation").

. I emphasize that it is the County’s constitutional liability and not Sheriff Moore’s tort liability that I question. See DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 201 , 109 S.Ct. 998, 1006 , 103 L.Ed.2d 249 (1989) (explaining that Due Process Clause does not constitutionalize "every tort committed by a state actor”); Collins v. City of Harker Heights, 503 U.S. 115, 127-29 , 112 S.Ct. 1061, 1070 , 117 L.Ed.2d 261 (1992) ("[W]e have previously rejected claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law.” (citations omitted)); Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir.) (en banc) ("Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." (quoting Baker v. McCollan, 443 U.S. 137, 146 , 99 S.Ct. 2689, 2695 , 61 L.Ed.2d 433 (1979))), cert. denied, -U.S. -, 115 S.Ct. 70 , 130 L.Ed.2d 25 (1994).