Brown v. Bryan County, OK

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 93-5376

JILL BROWN,

Plaintiff-Appellee,

Cross-Appellant

VERSUS

BOARD OF THE COUNTY COMMISSIONERS

OF BRYAN COUNTY, OKLAHOMA, ET AL.,

Defendants-Appellants,

Cross-Appellees.

Appeal from the United States District Court

for the Eastern District of Texas

(Opinion June 2, 5th Cir., 1995, F.3d )

(October 23, 1995)

Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit

Judges.

REYNALDO G. GARZA, Circuit Judge:

SUBSTITUTE PANEL OPINION1

A claim for damages was brought against Reserve Deputy Stacy

Burns (Burns) and Bryan County, Oklahoma (Bryan County),2 by Jill

1

The original panel opinion, to which Judge Emilio M. Garza

dissented, Brown v. Bryan County, Ok., 53 F.3d 1410 (5th Cir.

1995), is withdrawn and is replaced in toto by this opinion, in

which Judge Wiener continues to concur.

2

This suit was originally brought against several parties, but

the district court dismissed the claims concerning the other

Defendants, leaving Bryan County and Stacy Burns as the only

Brown (Mrs. Brown) pursuant to 42 U.S.C. § 1983 and Oklahoma law.

The case proceeded to trial, in which the jury found in favor of

the Plaintiff on every interrogatory submitted. The district court

entered a judgment in accordance with the jury's verdict with one

exception: Mrs. Brown was not allowed to recover for loss of past

income or future earning capacity. Burns and Bryan County

(collectively the "Appellants") appeal the judgment against them

while Mrs. Brown appeals the portion of the judgment that denied

her recovery for lost past income and future earning capacity. For

the reasons stated below we affirm the district court's judgment.

BACKGROUND

In the early hours of May 12, 1991, Todd Brown (Mr. Brown) and

Mrs. Brown were traveling from Grayson County, Texas, to their home

in Bryan County, Oklahoma. After crossing into Oklahoma, Mr.

Brown, who was driving, noticed a police checkpoint. He decided to

avoid the checkpoint and headed back to Texas, allegedly to spend

the night at his mother's house. Although the parties offer

conflicting stories leading to the pursuit, Deputy Sheriff Robert

Morrison (Deputy Morrison) and Burns stated that they "chased" the

Browns' vehicle at a high rate of speed before successfully pulling

it over. Mr. Brown testified that he was oblivious to the

deputies' attempts to overtake him until both vehicles had traveled

approximately three miles.3 By the time the two vehicles

Defendants.

3

Apparently, the road traveled on was winding, thereby,

diminishing the visibility of other vehicles approaching from

behind.

2

eventually stopped, the parties had crossed into Grayson County,

Texas, four miles from the Oklahoma checkpoint.

Immediately after exiting the squad car, Deputy Morrison

unholstered his weapon, pointed it toward the Browns' vehicle and

ordered the occupants to raise their hands. Burns, who was

unarmed,4 rounded the corner of the truck to the passenger's side.

After twice ordering Mrs. Brown from the vehicle, Burns pulled her

from the seat of the cab and threw her to the ground. Burns

employed an "arm bar" technique whereby he grabbed Mrs. Brown's arm

at the wrist and elbow, extracted her from the vehicle and spun her

to the ground. Mrs. Brown's impact with the ground caused severe

injury to her knees, requiring corrective surgery.5 While Mrs.

Brown was pinned to the ground, Burns handcuffed her and left to

assist Deputy Morrison in subduing her husband. Mrs. Brown

remained handcuffed anywhere from a minimum of thirty minutes to

just over an hour.

According to Mrs. Brown's version of the facts, which will be

reviewed in greater detail below, the deputies' pursuit and the

force consequently applied against her were unprovoked.

Furthermore, she claims that her detention constituted false

imprisonment and false arrest. Due to the injuries resulting from

that encounter, Mrs. Brown seeks compensation from Burns and Bryan

4

Although Burns was working for the Sheriff's Department, he

was not authorized to carry a firearm or drive a squad car.

5

Mrs. Brown received a total of four operations on her knees.

Moreover, medical testimony was elicited at trial which showed that

Mrs. Brown would ultimately require total knee replacements.

3

County. Mrs. Brown premised the county's liability, inter alia, on

the hiring of Burns by Sheriff B.J. Moore (Sheriff Moore), the

county policymaker for the Sheriff's Department.

DISCUSSION

The Appellants have presented this Court with a host of issues

to support their position that the lower court erred. For

efficiency's sake, we will address only those points that we

believe merit review. We first address the claims against Burns

for the constitutional injuries that Brown suffered.

I.

In their first argument, Burns and Bryan County allege that

the force applied against Mrs. Brown was proper. Appellants claim

that the evidence "undisputedly" established that Burns' actions on

the morning of May 12, 1991, were objectively reasonable.

Therefore, the jury's findings should be reversed.

All claims that a law enforcement officer has used excessive

force - deadly or not - in the course of an arrest, investigatory

stop, or other "seizure" of a free citizen, are analyzed under the

Fourth Amendment and its "reasonableness" standard. Graham v.

Connor, 490 U.S. 386, 395 (1989). The test of reasonableness under

the Fourth Amendment requires

careful attention to the facts and circumstances of each

particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest

by flight.

Id. at 396. The "reasonableness" of the particular force used must

be judged from the perspective of a reasonable officer at the

4

scene, rather than with the 20/20 vision of hindsight. Id. In

cases implicating excessive force, "not every push or shove, even

if it may later seem unnecessary in the peace of a judge's

chambers," violates the Fourth Amendment. Id. (citation omitted).

Thus, the question is whether the officer's actions are

"objectively reasonable" in light of the facts and circumstances

confronting him, without regard to his underlying intent or

motivation. Id. at 397.

Determining whether Burns' actions were reasonable depends on

whose story the trier of fact accepts as true. According to the

testimony of Burns and Deputy Morrison, they were involved in a

"high-speed" pursuit6 after the Browns abruptly turned their truck

and sped from the checkpoint. After a four mile "chase" both

vehicles came to a full stop. The deputies exited their vehicle

and made several commands for the occupants to raise their hands

before those commands were obeyed. After rounding the truck, Burns

twice ordered Mrs. Brown to exit the vehicle, but she did not

comply. He then perceived that she was "lean[ing] forward" in the

cab of the truck as if she were "grabbing a gun."7 He was "scared

to death," so he extracted her from the vehicle. He spun her

around, dropped her to the ground via the arm bar maneuver and

handcuffed her. That was the lowest amount of force he deemed

6

The deputies testified that they were pursuing the Browns at

speeds in excess of 100 miles per hour.

7

The fact that two firearms were found in the truck after the

arrest does not make Burns actions any more or less reasonable,

unless his actions had resulted from the observation of those guns

prior to the arrest. That was not the case, however.

5

necessary to extract her and ensure he and his partner's safety.

Certainly, Appellants' version of the facts supports a claim

that Burns acted reasonably and with an appropriate amount of

force. The Browns, however, paint a strikingly different picture.

They testified that they were oblivious to the attempts made by the

deputies to catch up to them (the Browns) after avoiding the

Oklahoma checkpoint.8 Mr. Brown avoided that stop because he

feared the possibility of being harassed or unnecessarily detained

by the deputies.9 He further testified that he did not believe

that he turned the truck around either in a reckless fashion nor

with wheels squealing or throwing gravel, and that he drove away at

a normal rate of speed. Finally realizing that they were being

pursued, Mr. Brown pulled over only to find a gun pointed at him.

They were ordered to put their hands up and they did so.

Mrs. Brown then testified that Burns ran to her side of the

vehicle and ordered her to get out. She was paralyzed with fear

and heard Burns repeat the command. According to her testimony,

however, she was not slow in responding to Burns' orders and she

did not make any sudden moves while exiting the vehicle. Her only

forward movement was to exit the truck and, contrary to Burns'

testimony, she did not reach for anything. Then, while she was

8

Mr. Brown testified that initially, he did not hear any

police sirens, or observe a squad car following them. Finally,

after driving for several minutes at speeds of 40 to 55 miles per

hour, he glimpsed the blue lights from the deputies' vehicle and

determined that he was being pursued. He stopped the truck at the

first available opportunity.

9

Mr Brown alleged that he had been unnecessarily detained at

that checkpoint on several occasions.

6

exiting the truck, Burns suddenly grabbed her arm, yanked her out,

spun her around and threw her to the pavement. She could not break

her fall because one arm was raised and Burns firmly gripped the

other.

In addition to this conflicting testimony, both sides elicited

expert testimony concerning the reasonableness of Burns' actions.

Mrs. Brown's expert, for example, concluded that the force applied

by Burns in this situation was unjustified and excessive.10 The

jury weighed all the evidence, evaluated the conflicting testimony

and rendered a verdict in Mrs. Brown's favor. Under our standard

of review,11 when the evidence supports the verdict, this Court will

not impose its own opinion in contravention to the jury's.

10

The expert did acknowledge that the force used was the lowest

force that could have been applied in extracting and subduing an

arrestee without endangering either party. However, he did not

feel that the situation required this type of force.

11

The standard for appellate review of a jury's verdict is

exacting. Granberry v. O'Barr, 866 F.2d 112, 113 (5th Cir. 1988).

It is the same standard as applied in awarding a directed verdict

or a judgment notwithstanding the verdict and is referred to as the

"sufficiency of the evidence" standard. Id. The standard is as

follows:

"The verdict must be upheld unless the facts and

inferences point so strongly and so overwhelmingly in

favor of one party that reasonable men could not arrive

at any verdict to the contrary. If there is evidence of

such quality and weight that reasonable and fair minded

men in the exercise of impartial judgment might reach

different conclusions, the jury function may not be

invaded."

Id. (quoting Western Co. of North Am. v. United States, 699 F.2d

264, 276 (5th Cir.), cert. denied, 464 U.S. 892 (1983)). Stated

another way, the Court should consider all of the evidence, not

just that evidence which supports the nonmovant's case, in the

light and with all reasonable inferences most favorable to the

nonmovant. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.

1969) (en banc).

7

Therefore, we will not interfere with the fact finder's conclusion

that Burns' actions were unreasonable and that the force he used

was excessive.

II.

Notwithstanding the jury's findings, Appellants also assert

that there was probable cause to arrest Mrs. Brown. They argue

that the facts justified Burn's actions, thereby precluding Mrs.

Brown's § 1983 claim for false arrest.

There is no cause of action for false arrest under § 1983

unless the arresting officer lacked probable cause. Fields v. City

of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir. 1991). To

determine the presence or absence of probable cause, one must

consider the totality of the circumstances surrounding the arrest.

United States v. Maslanka, 501 F.2d 208, 212 (5th Cir. 1974),12

cert. denied, 421 U.S. 912 (1975). Whether officers have probable

cause depends on whether, at the time of the arrest, the "`facts

and circumstances within their knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a

prudent man in believing that [the arrested] had committed or was

committing an offense.'" Id. (quoting Beck v. Ohio, 379 U.S. 89,

91 (1964)). Furthermore, although flight alone will not provide

probable cause that a crime is being committed, in appropriate

12

In Maslanka, a police officer observed a car coming down a

road and, upon seeing his unmarked car, it turned around and sped

away in flight. This Court found that this observation provided

sufficient facts for an officer to investigate. Maslanka, 501 F.2d

at 213. Upon stopping the car, the officer smelled marihuana

smoke, creating the probable cause necessary to arrest the

passengers. Id.

8

circumstances it may supply the "`key ingredient justifying the

decision of a law enforcement officer to take action.'" United

States v. Bowles, 625 F.2d 526, 535 (5th Cir. 1980) (quoting United

States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied,

429 U.S. 979 (1976)).

To reiterate, whether Burns had probable cause to arrest Mrs.

Brown depends in large part on whether the facts, as Burns knew

them, were sufficient to warrant a prudent man's belief that Mrs.

Brown committed or was in the process of committing a crime. The

facts material to that determination were hotly contested,

especially the contradictory testimony relating to the pursuit and

Mrs. Brown's movements while exiting the vehicle. Thus, it was for

the fact finder to determine whether Burns had probable cause to

arrest Mrs. Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602

(5th Cir. 1994). Assuming arguendo that the deputies had a

reasonable suspicion to perform an investigatory stop, we

nevertheless find the evidence sufficient to support the jury's

finding that Burns did not have probable cause to arrest Mrs.

Brown, and that his doing so violated her constitutional right to

be free from false arrest.

As the jury found that Burns did not have probable cause to

detain or arrest Mrs. Brown, it could also find from the evidence

that she was falsely imprisoned. To set out a claim for false

imprisonment the plaintiff must prove (1) an intent to confine, (2)

acts resulting in confinement, and (3) consciousness of the victim

of confinement or resulting harm. Harper v. Merckle, 638 F.2d 848,

9

860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816 (1981).

Under § 1983, the plaintiff must also prove the deprivation of a

constitutional right, i.e., an illegality under color of state law.

Id. The evidence establishes that Mrs. Brown believed herself to

be under arrest: even though she had committed no crime, she

remained handcuffed for approximately an hour before being

released, during which time she was never informed of the nature of

the charges for which she was being detained, and subsequently no

charges were ever brought. In light of such evidence, a finding of

false imprisonment is proper.13

III.

Appellants also contest the jury's finding that Burns was not

entitled to qualified immunity. A proper analysis of a qualified

immunity defense requires us to conduct a two (sometimes three)

prong inquiry. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct.

1789, 114 L.Ed.2d 277 (1991); Harlow v. Fitzgerald, 457 U.S. 800,

102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). First, we determine

"whether the plaintiff has asserted a violation of a constitutional

right at all." Siegert, 500 U.S. at ___, 111 S.Ct. at 1793.

Second, we establish whether the law was clearly established at the

time of the official's action. Siegert, 500 U.S. at ___, 111 S.Ct.

at 1794; Harlow, 457 U.S. at 815-19, 102 S.Ct. at 2737-38. Third,

we evaluate the "objective reasonableness of [the] official's

conduct as measured by reference to clearly established law."

13

As this Court finds that liability was proper for the claims

of excessive force, false arrest and false imprisonment, it need

not address the state law issues involved herein.

10

Harlow, 457 U.S. at 818, 102 S.Ct. at 2739. It is clear that by

1991, use of excessive force, false arrest and false imprisonment

had been held to violate citizens' constitutional rights, thus the

qualified immunity defense fails if Burns did not act with probable

cause. And as the trier of fact determined that Burns did not have

probable cause to arrest Mrs. Burns, he is not entitled to

qualified immunity.14

IV.

Burns asserts that the evidence is insufficient to support the

jury's award of punitive damages. He argues that application of

the arm bar technique did not rise to a level of "flagrant" conduct

and further, that it did not evidence malice or give rise to an

inference of evil intent.15 Nevertheless, the Supreme Court has

ruled that punitive damages are recoverable in a § 1983 action.

Smith v. Wade, 461 U.S. 30, 35 (1983). One of the primary reasons

for § 1983 actions and punitive damages is to deter future

egregious conduct. Id. at 49. A jury may assess punitive damages

in an action under § 1983 if the defendant's conduct is shown to be

motivated by evil motive or intent, or involved reckless or callous

indifference to the federally protected rights of others. Id. at

56. The question is whether the acts of Burns, which caused the

14

"While it is correct that the reasonableness of the arresting

officer's conduct under the circumstances is a question of law for

the court to decide, such is not the case where there exist

material factual disputes . . . ." Harper v. Harris County, Tex.,

21 F.3d 597, 602 (5th Cir. 1994) (discussing officer's qualified

immunity).

15

Mrs. Brown did not respond to this argument in her briefs.

11

deprivation of Mrs. Brown's constitutional rights, rose to a level

warranting the imposition of punitive damages. In light of the

evidence before it, we believe that the jury could properly infer

that Burns' acts were unjustified and that he acted with callous or

reckless indifference to Mrs. Brown's constitutional rights.

Therefore, punitive damages were justified.

V.

On cross-appeal, Mrs. Brown argues that it was error for the

district court to grant Appellants' Motion for Judgment

Notwithstanding the Jury Verdict (JNOV) as it relates to her claims

for loss of past income and future earning capacity.16 Mrs. Brown

asserts that neither Bryan County nor Burns specifically raised an

issue concerning the sufficiency of the evidence supporting that

portion of the judgment, thus the district court's action was

unjustified and the award must be reinstated. She insists that

there is absolutely no legal predicate on which the district court

could base its actions. Therefore, as evidence was offered to

support this award, Mrs. Brown argues that the original jury award

should be reinstated.

This Court has determined that it "would be a constitutionally

impermissible re-examination of the jury's verdict for the district

16

In the order, the district court stated "[t]he jury awarded

plaintiff substantial damages in this case, including $36,000 for

loss of income in the past and $180,000 for loss of earning

capacity in the future. After a review of the evidence in this

case, the Court is convinced that there is no legally sufficient

evidentiary basis for the award of these damages. Therefore,

judgment should be granted for the defendants on plaintiff's claims

for loss of income in the past and loss of earning capacity in the

future."

12

court [or this Court] to enter judgment n.o.v. on a ground not

raised in the motion for directed verdict." McCann v. Texas City

Refining, Inc., 984 F.2d 667, 672 (5th Cir. 1993). It is

undisputed that the Appellants did not address the sufficiency of

the evidence supporting the jury's award for loss of past income

and future earning capacity in their motions for either directed

verdict or JNOV. Thus, the lower court should not have decided

whether sufficient evidence exists to support this award. However,

as the Appellants point out, Mrs. Brown failed to object to this

error at trial, and it is the "unwavering rule in this Circuit that

issues raised for the first time on appeal are reviewed only for

plain error." Id. In other words, this Court will reverse only if

the error complained of results in a "manifest miscarriage of

justice." Id. Furthermore, contrary to Mrs. Brown's contention,

the issue is not whether any evidence exists to support the jury

verdict. Instead, the issue is whether the district court's action

constituted plain error.

Upon reviewing the record, we do not believe that the lower

court's error resulted in a manifest miscarriage of justice. The

only evidence offered in support of the award comprised of Mrs.

Brown's testimony, which reflected that she had accepted an offer

to commence work a few days after the day of the incident. Her

compensation would have been measured on a commission basis, which

she believed would have paid between $1,500 to $1,800 a month. The

district court's ruling that this evidence was lacking does not

arise to plain error. Mrs. Brown's failure to object at the

13

appropriate time denied the district court the opportunity to

rectify any errors. Therefore, the court's ruling will stand.

VI.

Having found that Burns violated Mrs. Brown's constitutional

rights, the next inquiry concerns the possible liability of Bryan

County. Liability will accrue for the acts of a municipal official

when the official possesses "final policymaking authority" to

establish municipal policy with respect to the conduct that

resulted in a violation of constitutional rights. Pembaur v. City

of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion).

Bryan County stipulated that Sheriff Moore was the final

policymaker for the Sheriff's Department. As such, it is patently

clear that Sheriff Moore17 is an official "whose acts or edicts may

fairly be said to represent official policy and whose decisions

therefore may give rise to municipal liability under § 1983." Id.

at 480 (citing Monell, 436 U.S. at 694).

Mrs. Brown argues that a municipality can be held liable under

§ 1983 based on a final policymaker's single decision regarding the

hiring or training of one individual. Appellants, on the other

hand, argue that § 1983 liability cannot attach on the basis of a

policymaker's single, isolated decision to hire or train one

individual.

An argument similar to the Appellants' was rejected by this

17

Appellants failed to object to the jury instructions which

referred to Sheriff Moore as the final policymaker. See Gonzalez v.

Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir. 1993)

(failure to lodge an objection to court's instructions regarding

the final policymaker waived the issue).

14

Court in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754

(5th Cir. 1993). In Gonzalez, the Ysleta Independent School

District (YISD) was sued for a single decision to transfer a

teacher accused of sexually harassing a student, rather than

removing him from the classroom. YISD argued that this ad hoc,

isolated decision, even when made by policymakers, did not

constitute the sort of "policy" upon which municipal liability

could be predicated under Monell. This was especially true there,

insisted YISD, as the decision was contrary to the district's own

formal policy for handling such matters. This argument proved

unpersuasive.

Based on the facts before it, the Gonzalez panel concluded

that the final policymaker's single, conscious decision, i.e., the

Board of Trustee's decision to transfer the teacher rather than

remove him from the classroom, constituted a "policy" attributable

to the school district. Gonzalez, 996 F.2d at 754. This

conclusion was logical, as "[n]o one has ever doubted . . . that a

municipality may be liable under § 1983 for a single decision by

its properly constituted legislative body . . . because even a

single decision by such a body unquestionably constitutes an act of

official government policy." Pembaur, 475 U.S. at 480 (emphasis

added).18 To deny compensation to the victim in such a case would

18

In Pembaur, the Supreme Court held that a county prosecutor's

single decision, ordering law officers to forcibly enter a

dentist's office, was actionable under § 1983. 475 U.S. at 480-81.

However, the Court cautioned that liability would only attach where

the course of action was deliberately chosen by a decisionmaker

possessing final authority to establish municipal policy. Id. at

481. We note that Mr. Pembaur's § 1983 action was premised on a

15

be contrary to the fundamental purpose of § 1983. Id. at 481. So,

it is clear that a single decision may create municipal liability

if that decision were made by a final policymaker responsible for

that activity.

Mrs. Brown argues that Burns' lengthy criminal history should

have prevented Sheriff Moore from hiring him. Burns' history

revealed a string of offenses that, she claims, demonstrates a

disregard for the law and a propensity for violence. Moreover, she

maintains that a thorough investigation of Burns' background would

have revealed that his parole had been violated by his numerous

offenses. Thus, she argues that Burns' screening and subsequent

employment by Sheriff Moore were inadequate and subjected Bryan

County to liability.

During the application process Sheriff Moore ordered a

printout of Burns' criminal record, which revealed the following

citations and arrests: nine moving traffic violations, Actual

Physical Control (APC) of a motor vehicle while intoxicated,

driving with a suspended license, arrest for assault and battery,

conviction for possession of a false identification and an arrest

for resisting lawful arrest. When Sheriff Moore was examined about

Burns' "rap sheet," the following exchange took place:

Q. Did you make an inquiry with the proper authorities in Oklahoma

to get a copy of Mr. Burns' rap sheet?

A. I run his driving record, yes.

theory of municipal policy and not on a theory of municipal custom.

Id. n.10.

16

Q. All right. And you can get that rap sheet immediately, can't

you?

A. It don't take long.

Q. All right. And did you not see on there where Mr. Burns had

been arrested for assault and battery? Did you see that one on

there?

A. I never noticed it, no.

Q. Did you notice on there he'd been arrested or charged with

[Driving While License Suspended] on several occasions?

* * *

A. I'm sure I did.

Q. All right. Did you notice on there that he'd been arrested and

convicted for possession of false identification?

A. No, I never noticed that.

Q. Did you notice on there where he had been arrested for public

drunk?

A. He had a long record.

Q. Did you notice on there where he had been arrested for

resisting arrest?

A. No, I didn't.

Q. Did you make any inquiries after you got that information to

determine exactly what the disposition of those charges were?

A. No, I didn't.

Q. Did you not make any attempt to find out the status of Mr.

Burns' criminal record at that time?

A. As far as him having a criminal record, I don't believe he had

a criminal record. It was just all driving and -- most of it was,

misdemeanors.

Q. Well, did you make any attempts to determine whether or not Mr.

Burns was on probation at the time you placed him out there?

A. I didn't know he was on probation, no.

Q. Did you make any effort to find out?

A. I didn't have no idea he was on probation, no.

17

Q. Well, you saw on his rap sheet where he had been charged with

[Driving Under the Influence], didn't you?

A. I had heard about that. I don't remember whether I had seen it

on the rap sheet or not.

Q. So you'd heard about it?

* * *

A. I don't remember whether I seen it on the rap sheet or heard

about it.

Besides this damaging testimony, Mrs. Brown's expert19

testified regarding the importance of properly screening law

enforcement applicants. The expert testified that a thorough

investigation process is needed to weed out individuals who enter

the police force for the wrong reasons, for example, because "they

like to exert their power." In light of Burns' arrest record, the

expert concluded that he showed a "blatant disregard for the law

and problems that may show themselves in abusing the public or

using excessive force," thereby rendering Burns unqualified for a

position in law enforcement. The expert further testified that as

a minimum, Sheriff Moore should have investigated the disposition

of the charges against Burns. Even Appellants' expert, Ken Barnes,

agreed that Burns' criminal history should have caused some

concern, meriting a further review of the applicant. More

importantly, when Mr. Barnes was asked if he would have hired

Burns, he replied that it was "doubtful."

From the foregoing evidence, the jury could have reasonably

19

The record shows that the expert, Dr. Otto Schweizer, had

spent over twenty years in law enforcement, including, several

years as a field training officer, a police chief and as a

professor of criminal justice and police administration at the

University of Central Oklahoma.

18

inferred that Sheriff Moore "closed his eyes" to Burns' background

when hiring him. This inference is reinforced by Burns' familial

relations within the Sheriff's Department: not only is Burns the

son of Sheriff Moore's nephew, but Burns' grandfather had been

involved with the department for more than sixteen years.

Alternatively, the jury could have inferred that Sheriff Moore was

indeed aware of Burns' past problems with the law and was therefore

cognizant of his deficient character, but nevertheless opted to

employ him because he was "family".20 Again, the innuendos of

nepotism only bolster the inference that Burns would have been

hired regardless of his criminal history.

We believe that the evidence supports the jury's conclusion

that Sheriff Moore did not conduct a good faith investigation of

Burns. Although it is true that Sheriff Moore ran a NCIC check of

Burns, this action was futile given that Burns' arrest history was

all but ignored. Sheriff Moore conceded that Burns' record was so

long that he did not bother to examine it. And, except for this

feeble attempt to screen him, no other effort was made to

investigate Burns. A further examination would have revealed that

Burns had repeatedly violated probation, and that a warrant was

subsequently issued for his arrest. In light of this history, it

should have been obvious to Sheriff Moore that a further

20

In light of the string of arrests and convictions, a jury

could properly conclude that Burns had a propensity for violence

and a disregard for the law, thus, precluding his employment. We

deem such a conclusion proper, even though Burns had no felonies on

his record. Oklahoma law prevents a sheriff from hiring an

individual convicted of a felony or a crime involving moral

turpitude. OKLA. STAT. ANN. tit. 70, § 3311(d)(2) (West 1994).

19

investigation of Burns was necessary.

We also find the evidence sufficient for a jury to conclude

that Sheriff Moore's decision to hire Burns amounted to deliberate

indifference to the public's welfare. See Stokes v. Bullins, 844

F.2d 269, 275 (5th Cir. 1988); Wassum v. City of Bellaire, Texas,

861 F.2d 453, 456 (5th Cir. 1988); Benavides v. County of Wilson,

955 F.2d 968, 972 (5th Cir.), cert. denied, --- U.S. ---, 113 S.Ct.

79 (1992). In light of the law enforcement duties assigned to

deputies, the obvious need for a thorough and good faith

investigation of Burns, and the equally obvious fact that

inadequate screening of a deputy could likely result in the

violation of citizens' constitutional rights, Sheriff Moore can

reasonably be said to have acted with deliberate indifference to

the public's welfare when he hired Burns. See City of Canton v.

Harris, 489 U.S. 378, 390 (1989).21 The failure to conduct a good

faith investigation of the prospective employee amounted to Sheriff

Moore deliberately closing his eyes to the Burns' background.22

Such indifferent behavior cannot be tolerated when the prospective

21

Further, the lower court's charge to the jury was proper:

"Sheriff B.J. Moore would have acted with deliberate indifference

in adopting an otherwise constitutional hiring policy for a deputy

sheriff if the need for closer scrutiny of Stacy Burns' background

was so obvious and the inadequacy of the scrutiny given so likely

to result in violations of constitutional rights, that Sheriff B.J.

Moore can be reasonably said to have been deliberately indifferent

to the constitutional needs of the Plaintiff."

22

It is certainly true that the Sheriff had conducted adequate

background checks on other deputies and assured himself that they

were certified before putting them on the street, but the fact that

he diverged from that practice as to this one individual does not

save the County from liability. See Gonzalez v. Ysleta Indep. Sch.

Dist., 996 F.2d 745, 754 (5th Cir. 1993).

20

applicant will be employed in a position of trust and authority.

Additionally, the jury could find that hiring an unqualified

applicant and authorizing him to make forcible arrests actually

caused the injuries suffered by Mrs. Brown. That is, the

policymaker's (Sheriff Moore's) single action of hiring Burns

without an adequate review of his background directly caused the

constitutional violations of which Mrs. Brown now complains.

Benavides, 955 F.2d at 972; Fraire v. City of Arlington, 957 F.2d

1268, 1277 (5th Cir.) (section 1983 liability attaches only "where

the municipality itself causes the constitutional violation" at

issue), cert. denied, ---U.S.---, 113 S.Ct. 462 (1992). Therefore,

the violation of Mrs. Brown's constitutional rights was

affirmatively linked to Bryan County's decision to hire Burns for

law enforcement activities. Stokes v. Bullins, 844 F.2d 269, 276

(5th Cir. 1988).

CONCLUSION

After a thorough review of the record, this Court finds that

the evidence supports the jury's verdict holding Burns and Bryan

County liable for Mrs. Brown's § 1983 claim based on her false

arrest, false imprisonment and the inadequate hiring of Burns. We

also find that the district court did not plainly err in dismissing

the jury's award for Mrs. Brown's loss of past income and future

earning capacity. For these reasons, the jury's verdict stands and

the district court's judgment is

AFFIRMED.

21