Brown v. Bryan County

DeMOSS, Circuit Judge,

dissenting:

This appeal is the latest in a series of appeals which deal with the same factual and legal claims between the same parties. For ease of reference, these are defined as follows:

(1) Brown v. Bryan County, 53 F.3d 1410 (5th Cir.1995) (hereinafter “Brown I ”)

(2) Brown v. Bryan County, 67 F.3d 1174 (5th Cir.1995) (hereinafter “Brown II ”)

(3) Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397 , 117 S.Ct. 1382 , 137 L.Ed.2d 626 (1997) (hereinafter referred to as the Supreme Court decision in Brown)

(4) Brown v. Bryan County, 219 F.3d 450 (5th Cir.1999)(hereinafter Brown III or the current appeal).

My review of the history of this long-term, complicated, and at times acrimonious litigation has persuaded me that our Court has made some errors in processing these appeals which deserve recognition and correction as part of the resolution of the current pending appeal.

*469 My concerns relate to the confusing and anomalous treatment of the claims of liability against Bryan County (the “County”) under § 1983 which is reflected in these various opinions. Here are the specifics.

In Brown I, the original panel of this Court discussed the liability of Bryan County in Part VI of that opinion. In Part VI(A), a majority of the panel determined that the jury findings supported a determination of liability on the part of Bryan County because Sheriff Moore’s decision to hire Burns without proper investigation amounted to deliberate indifference to the public welfare. In Part VI(B), the original panel unanimously determined that no recovery against Bryan County could be based on the theory of failure to properly train Burns after hiring because our Circuit’s cleai’ precedents require more than a single instance of injury or an isolated case of one poorly trained employee for municipal liability to attach. Judge Emilio Garza dissented on the basis that liability against Bryan County could not be sustained because one inadequate background investigation, even by a municipal policy maker, is not enough to constitute “the unconstitutional municipal policy” contemplated by Monell.

Following issuance of this opinion on June 2, 1995, another judge of this Court held the mandate and initiated correspondence with the original panel because the portion of Brown I holding the County liable was in conflict with a prior decision of this Circuit in Stokes v. Bullins, 844 F.2d 269 (5th Cir.1988). Also, Bryan County filed a motion for panel rehearing and a suggestion for en banc reconsideration as to the portion of Brown I which held the County liable for an inadequate hiring policy. Mrs. Brown did not file any motion for panel rehearing or en banc reconsideration.

Considerable exchange of memoranda finally resulted in a decision by the original panel in October 1995 to rewrite its opinion and substitute a new opinion, Brown II, for Brown I. Apparently, the purpose of this rewrite was to minimize the “en banc worthiness” of the new decision by making clear that the affirmance of the County’s liability was based on the particular factual determinations by the jury relating to the inadequacies of the investigation and the inappropriateness of Burns’ prior “criminal” record. In accomplishing the rewrite, however, all of Part VI(B), which determined that the County was not liable on any failure-to-train theory, was omitted.

I have not found any indication in the record to suggest that Part VI(B) was intentionally omitted in the redrafting which produced Brown II. I have great difficulty in understanding why Part VI(B) was omitted and have concluded that it must simply have been an inadvertent omission. Clearly, the text of Part VI(B) of Brown I was a completely accurate summary of our Circuit’s law on failure-to-train cases; and so far as I can tell, no party nor any judge on our Court raised any question as to the validity or accuracy of that text. If Part VI(B) had been left in Brown II, Mrs. Brown would have had an occasion to file a motion for panel rehearing or en banc reconsideration as to that issue. And failing relief by rehearing or en banc reconsideration, Mrs. Brown would have had an opportunity to apply for a writ of certiorari to the Supreme Court as to the correctness of the decision in Part VI(B) regarding the County not being liable for failure-to-train.

I note that in both Brown I and Brown II there is a short paragraph following the title “DISCUSSION” which includes the following sentence in both opinions: “For efficiency’s sake, we will address only those points that we believe merit review.” Obviously, in Brown I the panel felt the discussion in Part VI(B) merited review because Part VI(B) dealt with a theory of recovery which was actually tried before the jury, and as to which Bryan County preserved error in the district court, and the topic was fully briefed on appeal. Why the original panel determined that Part *470 VI(B) no longer merited review in the redrafting which produced Brown II is truly a puzzle to me. 1

After issuance of Brown II, our Court voted not to give en banc reconsideration to this appeal, and Bryan County applied for a writ of certiorari to the Supreme Court which was granted. In its opinion, the Supreme Court noted:

The [Fifth Circuit] court held, among other things, that Bryan County was properly found liable under § 1983 based on Sheriff Moore’s decision to hire Burns. The court addressed only those points that it thought merited review; it did not address the jury’s determination of county liability based on inadequate .training of Bums, nor do we. We granted certiorari to decide whether the County was properly held liable for respondent’s injuries based on Sheriff Moore’s single decision to hire Burns. We now reverse.

Brown, 520 U.S. at 402 , 117 S.Ct. at 1386-87 (citations omitted) (emphasis added). The Supreme Court vacated the judgment of the Fifth Circuit and remanded the case “for further proceedings consistent with this opinion.” Id. at 415 , 117 S.Ct. at 1394 . When this appeal arrived back in our Court, the original panel promptly remanded it to the district court, and in so doing, I think the original panel clearly erred. In my view, upon remand from the Supreme Court, the original panel should have taken two steps:

a. First of all, the panel should have determined the portions of Brown II which had not been reversed by the Supreme Court. Clearly, the portions of Brown II which discuss the liability of Reserve Deputy Burns individually and the quantum of damages had not been changed in any way by the Supreme Court decision, and an order affirming the district court’s determination of liability against Deputy Burns individually and the quantum of damages resulting therefrom could have and should have been issued to effect a final disposition thereof; and

b. The original panel should have determined the question of whether or not the County could be liable on a theory of failure-to-train Deputy Burns. As indicated earlier, the theory of failure-to-train had been actually tried to the jury, error in regard thereto had been preserved by the County, the theory had been briefed and argued on appeal, and the original panel had in fact decided that our Circuit law would not permit such a recovery in Part VI(B) of Brown I. In my view, our Court has a clear duty to decide all issues raised on appeal; and deciding not to decide (or inadvertently failing to decide) is just as big an error as deciding contrary to existing case law precedent in our Circuit.

Given the settled status of our Fifth Circuit case law on the failure-to-train theory, I think the original panel clearly should have issued a supplemental opinion holding that recovery against Bryan County could not be made on the failure-to-train theory; and in view of the Supreme Court decision holding that Bryan County could not be held liable on the improper hiring theory, the original panel should have instructed the district court to enter a judgment that Mrs. Burns take nothing from Bryan County under § 1983. Obviously, that supplemental holding could and probably would have been the subject of an application for writ of certiorari by Mrs. *471 Brown to the Supreme Court. If certiora-ri had then been granted, the Supreme Court would have then had the occasion to expressly state what distinctions, if any, there may be between the improper hiring theory and the failure-to-train theory insofar as County liability is concerned.

Instead of taking either of the steps suggested in the preceding subparagraphs, the original panel simply entered an order remanding this appeal to the district court “for consideration in conformity with the opinion of the Supreme Court.” Brown v. Bryan County, 117 F.3d 239, 240 (5th Cir.1997). When the case got back to the district court, each side promptly filed motions for judgment as a matter of law. No further evidence or testimony was presented by either party. The district court, therefore, had no evidence before it which it did not have at the time of the original trial four years earlier. The only new thing which the district court had after remand which it didn’t have at the time of the original trial was the Supreme Court decision in Brown itself and the rather disingenuous arguments made by counsel for Mrs. Brown that this Supreme Court decision cast a whole new light on the question of municipal liability in failure-to-train eases. This argument was made in the face of the express statement by the Supreme Court that it was NOT addressing a failure-to-train claim in its opinion. When the Supreme Court says it is not addressing a claim in its opinion, I think we should take them at face value and not allow extrapolations of dicta in that opinion to have any effect on the status of our Circuit’s settled law — i.e., in this case that failure-to-train claims require a pattern or history of other incidents to support deliberate indifference on the part of the municipality.

Not surprisingly, the district court again found that the evidence was sufficient to support the jury’s finding of liability on the failure-to-train theory. I am disturbed by the facility with which the district court simply ignored what was then the most recent decision of our Circuit reaffirming and reapplying the rule that a failure-to-train claim had to be based on more than one instance. See, Snyder v. Trepagnier, 142 F.3d 791 (5th Cir.1998), cert. granted, 525 U.S. 1098 , 119 S.Ct. 863 , 142 L.Ed.2d 716 , cert. dismissed, 526 U.S. 1083 , 119 S.Ct. 1493 , 143 L.Ed.2d 575 (1999). As a result, the more or less automatic and unstructured remand by the original panel to the district court proved to be not only a terrible waste of judicial resources and duplication of effort, but also provided Mrs. Brown with a dramatic “second bite at the apple” on her liability claims by permitting a reassessment of the failure-to-train theory by the same district judge whose holding on that same issue was determined to be inconsistent with Fifth Circuit precedent by Part VI(B) of Brown I.

Bottom line, it seems to me that the best way to extricate this Court from this convoluted mess is simply to “fess up” that the original panel inadvertently omitted Part VI(B) in the redrafting between Brown I and Brown II and that upon remand from the Supreme Court, the original panel inappropriately remanded to the district court without first deciding the issue of liability on the failure-to-train theory which was appropriately before it. The solution then is for this present panel to do now what the original panel should have done upon remand from the Supreme Court, i.e., issue a supplemental decision which (i) reaffirms the decision of the district court assessing liability against Deputy Burns individually and fixing damages as determined by the district court; (ii) reverses the decision of the district court as to liability on the part of Bryan County on the theory of failure-to-train; (iii) recognizes that the Supreme Court has determined that liability upon Bryan County for improper hiring is not supportable factually or legally; and (iv) directs the district court to enter judgment that Mrs. Brown take nothing from Bryan County under *472 her claims for deprivation of constitutional rights under § 1983.

Obviously, the foregoing analysis has fallen on the deaf ears of the current panel majority. In their haste to find a “deep pocket” from which Mrs. Burns may recover the compensation determined by the district court, the current panel majority articulates a variety of new theories with which I must, respectfully, disagree. First and foremost, the current panel majority overstates the impact of the Supreme Court decision in Brown, on the decision of this Court in Brown II. Second, the current panel majority ignores the clear line of Fifth Circuit precedent which establishes the criteria necessary to establish municipal liability for failure-to-train. Finally, the current panel majority misapplies dicta in the Supreme Court decision on the issue of hiring as being controlling on the issue of failure-to-train.

Does the Supreme Court Decision in Brown Vacate the Entirety of the Fifth Circuit Decision in Brown II?

After our circuit issued its opinion in Brown II, the only party to apply for writ of certiorari to the Supreme Court was Bryan County which asked for a review of the holding in Brown II that it was liable under § 1983 for inadequate hiring decisions. Deputy Burns did not ask for a writ of certiorari on the portion of Brown II which affirmed his liability under the jury verdict for wrongful arrest and use of excessive force. Mrs. Burns did not apply for a writ of certiorari on the portion of Brown II which affirmed the district court’s determination of the quantum of damages. The Supreme Court granted certiorari as to the writ requested by Bryan County and determined that the district court and our court had erred in finding that Bryan County was liable under Section 1983 for “Sheriff Moore’s single decision to hire Brown.” Accordingly, the Supreme Court decision in Brown concludes with the following statement:

We therefore vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.

520 U.S. at 415 , 117 S.Ct. at 1394 .

The current panel majority in this appeal concludes, as indicated by footnotes 1 and 17 of the majority opinion, that this ending direction from the Supreme Court is a complete vacatur of the entirety of this Court’s decision in Brown II and that, consequently, Brown II no longer constitutes “the law of the case” in any respect. In support of this conclusion, this current majority relies upon quotations from two Supreme Court cases in footnote 1. Standing alone, these quotations seem to support the majority’s position, but when read in the context of the cases from which they are taken, it is obvious that these two quotations were part of larger directives being issued by the Supreme Court in those cases, which required the remanding of those cases to the lower courts for consideration of events that had occurred while those particular cases were on appeal. In effect, the current panel majority attempts to draw a general rule out of specific directions issued in cases which are totally different from Brown from a procedural standpoint.

It seems axiomatic to me that since neither Deputy Burns nor Mrs. Brown attempted to appeal from the decisions in Brown II, relating to Deputy Burn’s liability and the quantum of damages, those parts of Brown II would clearly become final and constitute law of the case, if not res judicata, as to those matters. Consequently, our original panel erred when it decided to remand this case to the district court without specifying that such matters were not to be reopened. In point of fact, the district court seems to have assumed that these matters were law of the case, for in issuing its new opinion on remand, the district court spoke only as to the liability of Bryan County, and it ended up determining the same quantum of damages that it had determined at the time of *473 the original trial. Consequently, in my view, Mrs. Brown had no basis whatsoever for seeking to reopen the damage determination with the district court, and the current majority errs in deciding to permit reconsideration of that damage determination by the district court and in awarding Mrs. Brown a recovery in a quantum greater than that which she declined to appeal from in Brown II.

In issuing its directive at the end of the majority opinion in Brovm, the Supreme Court said absolutely nothing about remanding the case to the district court for “reconsideration by the district court” of any of the issues on appeal in Brovm II. The Supreme Court decision dealt solely with the single issue as to which certiorari had been granted, and nothing in the Supreme Court decision in Brovm can be deemed a mandate to reopen either the quantum of damage issue or the question of the liability of Deputy Brums.

What Effect Does the Supreme Court Decision in Brovm have on the Law Determining the County’s Liability under Section 1983 for Failure-to-train?

As indicated earlier in this dissent, the Supreme Court expressly indicated that it was not addressing the theory of County liability based on inadequate training of Deputy Burns because that theory had not been addressed by our Court in Brovm II. Despite this express disclaimer, Mrs. Brown and the majority both urge a reading of the Supreme Court decision in Brovm that would clearly authorize a holding of County liability under § 1983 based upon the jury findings and instructions given on the failure-to-train theory in this case. When the Supreme Court expressly says it is not addressing an issue in a case, I think we should be very cautious about drawing inferences and implications on an issue from the text of its opinion. But that is precisely what the majority does. In footnote 12, the majority states that “by implication,” the Supreme Court approved the jury instructions given to the jury in this case on inadequate training and cites a particular page in the Supreme Court opinion as authority for this statement. There is absolutely nothing, however, on that page of the Supreme Court opinion in Brovm which addresses the jury instruction on “inadequate training.” Rather, what is discussed on that page is the jury instruction on the improper hiring theory, which the Supreme Court recognized was “analogous .to that reserved in City of Canton,” but which the Supreme Court determined on the next page was inadequate and insufficient to properly present the issue of inadequate screening before hiring.

Specifically, the Supreme Court said that the district court’s instruction on inadequate screening before hiring was defective because: (1) it did not specify that the applicant being considered “was highly likely to inflict the particular injury suffered by the plaintiff’; and (2) because it failed to require a finding that Burn’s background “made his use of excessive force in making an arrest a plainly obvious consequence of the hiring decision.” Brown, 520 U.S. at 412 , 117 S.Ct. at 1390 .

It will be apparent to anyone reading the Supreme Court decision in Brovm that the Court drew certain distinctions between § 1983 liability based upon inadequate screening before hiring and § 1983 liability based upon failure-to-train. It will also be apparent to anyone reading the Supreme Court decision in Brovm that the Court concluded that the proof requirements and the jury instruction requirements on inadequate screening before hiring claims should be more stringent than those applicable to failure-to-train claims. Those differing requirements are necessary to:

(1) Avoid the “danger that a municipality will be held liable for an injury not directly caused by a deliberate action attributable to the municipality itself’; and

*474 (2) In order to “prevent municipal liability for a hiring decision from collapsing into respondeat superior liability.”

Brown, 520 U.S. at 410 , 117 S.Ct. at 1391 .

But the simple fact that the Supreme Court declined to accept Mrs. Brown’s “proffered analogy” between failure-to-train and inadequate screening cases says very little, if anything, about whether the Supreme Court intended to erect a new or different set of criteria for analyzing a failure-to-train theory.

In short, the Supreme Court decision in Brown on the inadequate screening claim, says absolutely nothing about changes in the criteria for analyzing a failure-to-train claim.

Impact of Supreme Court Decision In Brown on Fifth Circuit Precedent Defining Criteria for Failure-to-train

At the time the original panel issued Brown I in this case, this Circuit had a clear and consistent precedent that in order to recover against a municipality under § 1983 on a failure-to-train claim, the plaintiff must establish something more than a single instance of injury or an isolated case of one poorly trained employee. See, e.g., Languirand v. Hayden, 717 F.2d 220 (5th Cir.1983) (holding that in failure-to-train cases, the plaintiff must establish a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent police misconduct, or that serious incompetence or misbehavior was general or widespread throughout the police force); Rodriguez v. Avita, 871 F.2d 552 (5th Cir.1989) (discussing Languirand and concluding that municipal liability could not be derived from a single incident of improvident discharge of a firearm by an officer); and Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir.) (holding that, in failure-to-train cases “isolated violations are not the persistent, often repeated constant violations that constitute custom and policy”), cert. denied, 506 U.S. 973 , 113 S.Ct. 462 , 121 L.Ed.2d 371 (1992). The original panel relied on this precedent in holding in Part VI(B) of Brown I that Mrs. Brown could not recover against Bryan County for failure-to-train. Our Circuit’s decision in Languirand was decided before the Supreme Court decision in City of Canton, but it was referred to favorably by the Supreme Court in City of Canton as one of the Circuit cases that establishes the “deliberate indifference” standard for municipal conduct. Rodriguez and Fraire were decided after City of Canton. In writing Part VI(B) of Brown I, the original panel expressly referenced the Supreme Court decision in City of Canton and expressly utilized the following quotation from that case:

That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer’s shortcomings may have resulted from factors other than a faulty training program.... Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct.

City of Canton, 489 U.S. at 391, 109 S.Ct. at 1206.

As indicated earlier in this dissent, I recognize that Part VI(B) of Brown I was inadvertently omitted in the rewrite that produced Brown II. As indicated earlier in this dissent, I recognize that Part VI(B) of Brown I, in which a majority of this Court held that the same evidence before the Court in this appeal failed to establish the County’s liability for failure-to-train, was inadvertently omitted in the rewrite that produced Brown II. But our Circuit has traditionally followed a rule of orderliness that a subsequent panel may not reach a decision inconsistent with the decision of a prior panel unless there has been an en banc decision of our Court or a Supreme Court decision to the contrary. See, e.g., Grabowski v. Jackson County Pub. Defenders Office, 47 F.3d 1386, 1398-1403 (5th Cir.) (Smith, J., concurring in part *475 and dissenting in part), vacated for reh’g en banc, id. at 1403, district court judgment aff'd, 79 F.3d 478 (5th Cir.1996) (en banc); see also Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 197 (5th Cir.2000); Teague v. City of Flower Mound, 179 F.3d 377 (5th Cir.1999); Lowrey v. Texas A&M Univ. Sys., 117 F.3d 242 , 247 (5th Cir.1997).

Likewise, our Circuit also has a policy that requires a subsequent panel to give deference under the law of the case doctrine to a holding of a prior panel in the same case. See, e.g., Beets v. Johnson, 180 F.3d 190 (5th Cir.1999) (applying law of the case doctrine to decline reconsideration of an issue decided in a previous appeal), ce rt. denied , — U.S. ——120 S. Ct. 946, 145 L.Ed.2d 822 (2000); Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1094 (5th Cir.1996); United States v. Singleton, 49 F.3d 129, 134 (5th Cir.); Griffin v. Box, 956 F.2d 89, 93 (5th Cir.1992). The law of the case doctrine should foreclose reconsideration of the quantum of the damages in this case and reconsideration of the issue of municipal liability under § 1983 for failure-to-train in this case. Law of the case is a prudential doctrine — -a principle that “issues once decided in a case that recur in later stages of the same case are not to be redetermined.” See Jack H. Freidenthal, Civil Procedure § 14.1 (2d ed.1993) (citing Allen D. Vestle, Law of the Case: Single Suit Preclusion, 1967 Utah L.Rev. 1). See generally Lincoln National Life Ins. Co. v. Roosth, 306 F.2d 110 (5th Cir.1962) (en bane). “As most commonly defined, the [law of the case] doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618 , 103 S.Ct. 1382, 1391 , 75 L.Ed.2d 318 (1983).

Admittedly, both the rule of orderliness and the law of the case doctrine are prudential in nature and do not actually subtract from a court’s power to decide. But despite the prudential nature of these rules, this Court has consistently adhered to them. Moreover, while the circumstances in this case which resulted in Part VI(B) of Brown I being dropped out of the original panel’s decision in Brown II are somewhat peculiar and anomalous, I think the policies behind these rules justify their application in this case. First of all, the record in this case is identical in all material respects to the record presented to the panel in Brown I and Brown II, which the prior panel found insufficient to establish the .County’s liability for failure-to-train. Second, the procedural posture of this case is in all material respects identical. While the case has been appealed to the Supreme Court gnd remanded to the district court, the district court merely entered judgment as a matter of law on the basis of the jury findings without the benefit of any new evidence. Our task, therefore, remains the same as that presented in both Brown I and Brown II, which is to measure the adequacy of the trial record under the controlling legal standards. In this vein, the original panel’s determination that the record simply does not measure up may not be binding or. mandatory, but I see no basis for saying that the prior work by a three-member panel of this Court in a prior appeal involving the same issues, the same parties, the same record, and the same procedural posture is not entitled to any deference whatsoever. Indeed, such an approach is inconsistent with the prudential rules by which we govern ourselves as a collegiate court.

Unfortunately the current panel majority simply ignores both the existing Fifth Circuit precedent and our prudential rule of orderliness. In so doing, I think they err grievously. They obviously do not cite any en banc decision of this Circuit which changed or overruled the precedent established by Languirand, Rodriguez, and Fraire . Likewise, the current panel majority does not cite a Supreme Court case which holds that the requirement of our Circuit precedent of a pattern of prior incidents being necessary to establish de *476 liberate indifference on the part of a municipality under § 1983 is no longer the law. Instead, the current panel majority purports to rely upon various portions of City of Canton, particularly footnote 10 of that opinion. But each and every one of those portions of the City of Canton opinion which the panel majority now relies on to support its holding were available for reading and interpretation by the original panel in this case, by the panel in Fraire , and by the panel in Rodriguez .

In short, three panels of this Court have read the very same Supreme Court language and reached the conclusion that municipal liability under § 1983 should not be fixed on the basis of a single incident which is attributable to failure-to-train. The current panel majority, however, reached the opposite conclusion. The panel’s reference to footnote 10 is particularly troublesome. In this case, Deputy Burns was not authorized to carry a weapon, and he did not, in fact, carry or use a weapon on the occasion of the arrest involved in this case. There is no testimony in this case which would show that use of the arm-bar take down technique constitutes the use of deadly force. Consequently, this case does not' come anywhere near involving the example cited by the Supreme Court in City of Canton as a need for training which is so obvious as to constitute deliberate indifference on the part of the municipality without any history of prior circumstances.

What Impact Does the Supreme Court Decision in Brown Have on The Supreme Court Decision in City of Canton?

Both the current panel majority and Mrs. Brown’s brief take the position that the Supreme Court decision in Brown should be read as elaborating upon and extending the holding in City of Canton that an inadequate training claim could be the basis for 1983 liability in limited circumstances. I suggest, however, that the Supreme Court in Brown was actually limiting and restricting the language of City of Canton. Read the following quotation in which Justice O’Connor, speaking for the majority in Brown said:

We spoke, however, of a deficient training “program,” necessarily intended to apply over time to multiple employees. Id. at 390, 109 S.Ct. at 1205. Existence of a “program” makes proof of fault and causation at least possible in an inadequate training case. If a program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice that a new program is called for. Their continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action- — the “deliberate indifference” — necessary to trigger municipal liability. Id. at 390 n. 10, 109 S.Ct. at 1205 n. 10 (“It could ... be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are ‘deliberately indifferent’ to the need”); id. at 397, 109 S.Ct. at 1209 (O’CONNOR, J., concurring in part and dissenting in part) (“[Mjunicipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations. ... ”). In addition, the existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the “moving force” behind the plaintiffs injury. See id., at 390-91, 109 S.Ct. at 1205-06.

Brown, 520 U.S. at 407-08 , 117 S.Ct. at 1390 .

Note the repeated emphasis on the word “program” and note the use of the plural form of the words “violations” and “em *477 ployees,” both of which necessarily indicate instances of more than one violation by more than one officer.

Moreover, note the existence of the reference to “existence of a pattern of tor-tious conduct.” Each of these comments by the Supreme Court in Brown demonstrate that what it was saying in City of Canton is that the surest way to establish the required deliberate indifference on the part of the municipality is to prove that its training program has failed to prevent more than one constitutional violation by more than one employee over a period of time, and that such proof would support a finding of deliberate indifference by the municipality.

Also, in explaining why the analogy urged by Mrs. Brown between failure-to-train cases and inadequate screening cases was not persuasive, the Supreme Court in Brown stated the following:

In leaving open in Canton the possibility that a plaintiff might succeed in carrying a failure-to-train claim without showing a pattern of constitutional violations, we simply hypothesized that, in a narrow range of circumstances, a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations.

Brown, 520 U.S. at 409 , 117 S.Ct. at 1391 .

Note, first of all, the characterization of the language in Canton as a hypothesis not a holding. Note next that the Supreme Court in Brown characterized the applicability of the language in Canton as applying to “a narrow range of circumstances,” but the Supreme Court in Brown did not add any further examples beyond those already mentioned in City of Canton as to circumstances which would fit in this narrow range.

Finally, note that the Supreme Court decision in Brown, upgraded the probability of a violation of constitutional rights occurring in an improper hiring case from “so likely to result,” as stated in City of Canton, to “highly predictable consequence.” These same language distinctions are at the root of the Supreme Court’s analysis as to why the jury instructions in Brown on the inadequate hiring issue which was before it were defective. The jury instructions and issues on failure-to-train given by the district court were virtually identical to the jury instructions on inadequate hiring. As I have stated earlier, I do not think the Supreme Court in Brown spoke in any way to the jury instructions and issues on failure-to-train. But since we are now asked to make an educated guess as to what we think the Supreme Court would do with the failure-to-train instructions and jury issues in this case, if, as, and when, those matters get before the Supreme Court, I would put my money on the Supreme Court finding them deficient for two reasons: first, because they inquire about the deficiency of training of an individual, not the deficiency of a training program; and second, because they lack the specificity of constitutional violation and set too low a test of probability just like the issues found deficient by the Supreme Court on inadequate hiring in its opinion.

Conclusion

For all of the foregoing reasons, I respectfully dissent from the analysis and conclusion of the majority opinion. I urge Bryan County to file a motion for panel rehearing and suggestion for en banc reconsideration with respect to the majority’s treatment of both the liability and damage issues so that all of the active members of our Court might have an occasion to address the very serious issues raised by the majority’s handling of this appeal.

. It occurs to me that the original panel majority may have assumed that (i) en banc reconsideration of its affirmance of County liability on the improper hiring theory was so unlikely and (ii) a writ of certiorari from the Supreme Court on this same issue was likewise so unlikely that discussing an alternative theory of liability (i.e. failure-to-train) was simply not worth the paper it would be written on. If so, this case is a clear demonstration of the risks of assuming what a higher court will do. Surprise, surprise, the Supreme Court not only granted certiorari, but reversed the district court and our Court by holding that the jury instructions on improper hiring were not adequate and that the evidence was not sufficient to support the necessary findings — the very aspects which the panel majority thought would insulate this case from further review.