# Lynn v. City of Detroit

> Court of Appeals for the Sixth Circuit · April 5, 2004 · 98 F. App'x 381

URL: https://www.frixlaw.com/law-library/cases/8424901

## Case

- **Full name:** George LYNN and Terrance Beauchamp v. CITY OF DETROIT, and David Anderson, Julius Tate, Alisha Terry, and Phillip Ferency
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 5, 2004
- **Citations:** 98 F. App'x 381
- **Precedential status:** Published
- **Opinion:** Dissent by Clay
- **Judges:** Clay, Cook, Nelson
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

CLAY, Circuit Judge,
dissenting.
Inasmuch as the evidence in this case illustrates Defendants’ actions and omissions indicating that Defendants knowingly acquiesced in violations of Plaintiffs’ constitutional rights, I would affirm the district court’s denial of qualified immunity. Since qualified immunity does not shield from liability for civil damages those officials whose “conduct [violates] clearly established statutory or constitutional rights of which a reasonable person would have known,” Scicluna v. Wells, 345 F.3d 441, 444 (6th Cir.2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)), I respectfully dissent.
I.
As a purely legal determination, the district court’s denial of qualified immunity in deciding a summary judgment motion is subject to de novo review. Thomas v. Cohen, 304 F.3d 563, 568 (6th Cir.2002). A moving party is entitled to summary judgment as a matter of law when there are no genuine issues of material fact. Fed. R.Civ.P. 56(c); see also United Nat’l Ins. Co. v. SST Fitness Corp., 182 F.3d 447, 449 (6th Cir.1999). Furthermore, when deciding whether summary judgment is proper, we must view the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. *388 Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).
The majority opinion suggests that Defendants, based on the record in this case, had no duty to respond to the widespread, commonly known criminal conduct that permeated the walls of the City of Detroit’s sixth police precinct’s third platoon, other than to sporadically report a few citizen complaints of police misconduct to either Internal Affairs or other officers. What is not disputed is that Defendants, who directly supervised the rogue officers responsible for violations of Plaintiffs’ constitutional rights, acted with deliberate indifference when confronted with daily rumors and discussion of their subordinates’ criminal behavior. By looking the other way, or by failing to act when faced with apparently rehable reports of police corruption, Defendants actually contributed to the lawlessness of the third platoon by permitting its officers to continue to violate citizens’ rights with impunity.
The majority relies on a sparse record to assert which acts the Defendants were and were not responsible to perform when confronted with knowledge of fellow officers alleged criminal behavior. Op. 385-386. In conceding Defendants’ reasonable knowledge of a “strong likelihood” that the officers under their supervision were engaging in criminal activity, the majority opinion asserts that it is clear that Defendants had no duty, except to report citizens’ complaints regarding any officer’s alleged illegal activity. Id. However, it appears that much of Defendants’ knowledge of the rogue officers’ criminal behavior came not only from citizens’ complaints, but also from precinct-wide rumors of illegal activities. The majority opinion would absolve law enforcement supervisory officers of all responsibility, as a part of their official duties, of taking reasonable steps to put an end to their subordinates’ criminal behavior.
Although “simple awareness of employee’s misconduct does not lead to supervisory liability,” Leary, 349 F.3d at 903, if a genuine issue of fact nevertheless exists as to whether the Defendants were under an obligation to individually report to Internal Affairs any reasonable knowledge of subordinate officers’ misconduct and official corruption, then summary judgment should not apply. Id. Nevertheless, as an interlocutory appeal, we will only review the question of qualified immunity with respect to the legality of Defendants’ acts or omissions. This Court recently observed that,
[qualified immunity involves a three-step inquiry. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence ‘to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.’
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)).
In the instant action, it has been established that Plaintiffs’ constitutional rights were violated; however, questions remain as to the objective unreasonableness of Defendants’ participation in the violations of clearly established law. There are obviously unresolved questions of material fact as to the breadth of Defendant officers’ supervisory duties when confronted with their subordinates’ illegal behavior; and whether their failure to discharge those *389 duties constitutes knowing acquiescence of existing or impending constitutional violations. Vakilian v. Shaw, 335 F.3d 509, 515 (6th Cir.2003) (citing Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir.1988) (stating that when genuine issues of material fact exist as to whether the officer committed acts that would violate a clearly established right, then summary judgment is improper)).
The record reveals that Defendants had knowledge that any and all acts of impropriety committed on duty were required to be reported. (J.A. at 647.) Lieutenants Tate and Ferency both conceded their knowledge of illegal acts performed by officers under their supervision; however, they both responded differently when describing their individual actions.
Lieutenant Tate admits to hearing of incidents of police misconduct; however, those incidents were learned through citizen reports, which were then properly logged and reported to Internal Affairs. (J.A. 640.) In addition, Tate admitted to hearing rumors about police misconduct, but could not properly characterize the rumors, or their origin. (J.A. at 640-41.) Nevertheless, Tate emphatically stated the duty of a reasonable officer, as he knows it:
A. Let me say this, if any Detroit Police member becomes aware of criminal activity by any other member, it is incumbent upon them to report that.
Q. Report it to who?
A. Well, through the chain, to Internal Affairs.
Q. What about if they hear rumors of possible criminal activity, are they obligated to report that?
A. If any Detroit Police member becomes aware of any criminal activity by any other member, they are supposed to report that. No, I don’t recall any Detroit police lieutenant, sergeant, at that time at the 6th Precinct saying that they knew of any criminal activity on the part of any member at the 6th Precinct.
Id. at 641.
Lieutenant Ferency testified that he was aware of three incidents of officers’ criminal activity about which citizens complained. (J.A. at 767.) Ferency testified that after each of those three citizen complaints, he “[m]ade the appropriate reports and the appropriate department notifications, and a desk blotter entry.” Id.
Lieutenant Ferency also testified as to the duties of a Lieutenant:
Q: What do you do to supervise the sergeants who supervise police officers?
A: All I can say is I make sure things run smoothly.
Q: How do you do that?
A: When something breaks I try to fix it. I just try to be preemptive in the operation of the shift.
Q: How do you do that, what do you do?
A: Just by monitoring the sergeant’s actions.
Q: What do you do to monitor sergeants’ actions?
A: I see that they make activity log sheets. I see if they back up officers, monitor officers, see their runs. I question them as to what they perceive to be any possible problems on the shift.
Q: Anything else?
A: Just general observations. After all of these years of experience I have, if something goes awry, I try to correct— no, I do correct it.
(J.A. at 766.)
Although both Ferency and Tate admit to knowledge of illegal activity occurring under their supervision, under the majority’s approach, they escape potential liabili *390 ty by simply reporting such activity, and doing nothing else. Nevertheless, there are problems with this theory which the majority suggests absolves all Defendants of liability due to qualified immunity.
First, the rather unpersuasive theory that all Defendants had to do was report official corruption to Internal Affairs, and not take the matter further, should not absolve all of the Defendants because Sergeants Anderson and Terry did not report any complained of criminal activity to Internal Affairs. Anderson, as the majority opinion stated, was aware of the widespread suspicion of officers’ criminal activity throughout the precinct, and frequently discussed such widespread suspicion about such activity with colleagues, but never officially reported such conversations or accusations. Anderson stated that these criminal incidents were discussed amongst sergeants and lieutenants, but stated that he never reported the incidents, as alleged by the majority. (J.A. at 750.) Anderson implied that the conversations were frequent and casual, as if they were common knowledge, but the conversations failed to suggest that any officers were taking responsibility for the reporting of these very widely known accusations. Anderson also testified that even when he monitored the runs of officers of whom he was suspicious, he saw no decrease in questionable narcotics arrests, yet he subsequently did “nothing.” Id.
Terry also testified as to her knowledge of the rumors that officers under her supervision were engaged in criminal behavior and that such alleged behavior was repeatedly talked about in the lieutenants’ and sergeants’ room at the sixth precinct. Terry further testified that to her knowledge, nothing was done with respect to this information, even when it was widely known that certain officers were engaged in criminal activity. (J.A. at 722-723.) Terry did not report the alleged criminal conduct to Internal Affairs, nor can she say that she was aware that any of her supervisors reported such alleged criminal activity to Internal Affairs. Id.
Furthermore, contrary to the majority opinion’s supposition, there is no testimony that either Lieutenants Ferency or Tate reported the allegations of officers’ criminal conduct at the request or on the advice of Sergeants Anderson or Terry; nor is there evidence that Anderson or Terry received any acknowledgment or confirmation that these issues were being addressed or dealt with. Anderson and Terry, therefore, had no basis upon which to reasonably believe that any of the widespread allegations regarding rampant civil rights violations were being reported to Internal Affairs. 7 Instead, Defendants Anderson and Terry sat idly by and ignored the rumors, stories and allegations concerning the rogue officers, thus failing to do anything to stop the violation of citizens’ civil rights. 8
*391 II.
This Court in Doe v. City of Roseville attached qualified immunity to the defendants because there was no affirmative determination that the defendants, who were school administrators, were confronted “with conduct that was ‘obvious, flagrant, rampant and of continued duration, rather than isolated occurrences,’ ” 296 F.3d 431 , 440 (6th Cir.2002) (citing Braddy v. Florida Dep’t Labor & Employment Sec., 133 F.3d 797 , 802 (11th Cir.1998)), or “with ‘such widespread pattern of constitutional violations’ [ ] that their actions demonstrated deliberate indifference to the danger of [the violator] abusing [more victims].” Id. (citing Doe v. Claiborne County, 103 F.3d 495 , 513 (6th Cir.1996)). This standard, based upon the factual scenario we have in the instant action, supports the notion that Defendants herein are not entitled to qualified immunity.
It is difficult to disagree with the district court in its holding that the present case involves “supervisors who were presented with blatant, daily evidence of criminal activity that they chose to ignore.” (J.A. at 1249.) This case is distinguishable from the current Sixth Circuit case law granting qualified immunity to officials in supervisory positions. For example, in City of Roseville, the plaintiff there lacked information regarding the defendants that “ ‘showed a strong likelihood that [the violator] would attempt to [commit the crime again], such that failure to take adequate precautions amounted to deliberate indifference to the constitutional right of [potential plaintiffs].’ ” 296 F.3d at 440 (quoting Claiborne County, 103 F.3d at 513). There, the court held that nothing the “defendants did or didn’t do encouraged [the violator]’s abuse of [the victim], constituted participation in that abuse, or authorized, approved or knowingly acquiesced in it.” Id.
In the instant case, admissions from the deposition testimony of all four Defendant supervisors establish that they were all aware of the criminal activity, and all testified that the conversations regarding their awareness of the criminal activity occurred on an almost daily basis from at least 1995 until beyond the day pertinent to this appeal, February 10, 1996. This matter greatly differs from City of Roseville, where school administrators lacked the necessary knowledge to prevent a teacher from continuously sexually abusing his students. Id. at 439-40. Here we are dealing with a police department whose very purpose is to promote and maintain lawful behavior within its jurisdiction. The implications of supervising officers acquiescing in the maintenance of the wall of silence that surrounded the third platoon’s widely acknowledged criminal behavior are far more serious than the scenarios previously considered by this Court.
Nevertheless, even if we accept Defendants’ reference to these actions as mere “rumors” or “suspicious activity,” the reality of the scenario is that regardless of the terminology used to describe these occurrences, or Defendants’ awareness of them, the Defendant supervisors’ actions rose to the level of “tacit authorization” of the abuse of power by the rogue subordinate officers, resulting in constitutional injuries. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.1984).
Additionally, Defendant supervisors, as individuals directly responsible for ensuring the safety of all the citizens of Detroit, do so by insuring that all subordinate offi *392 cers operate under the same rules. Arguments by Defendants’ counsel that such responsibility does not lie within Defendant supervisors’ job responsibilities, which included monitoring and reporting suspicious activity, and supervising individual police officers, is countered by the admissions of certain Defendants in deposition testimony, specifically Lieutenant Ferency. (J.A. at 1098-1100.) To wordsmith one’s self out of the responsibility of one’s duties as a law enforcement supervisor, when one is aware of the lawbreakers under one’s supervision, is not only unconscionable, but rather amounts to the “knowing acquiescence” of criminal behavior subject to potential liability. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir.1999).
Moreover, Defendants’ arguments that they lacked the training and supervision to sufficiently monitor criminal activity is without weight. It would be a sad day for the Court if we were to accept the argument that these individuals obtained these supervisory positions in law enforcement without sufficient knowledge or ability to monitor criminal activity within their own ranks.
Furthermore, as determined by the district court, evidence of criminal conduct available to Defendant supervisors in the present case came from a variety of sources, each telling a consistent story. The decision of Defendant supervisors to ignore virtually all information concerning fairly open and blatant criminal activity on the part of their subordinates, and to refrain from taking any meaningful action in response to such information, is more than sufficient cause for denial of qualified immunity.
III.
Given the descriptions of lieutenants’ duties, it would seem that Lieutenants Tate and Ferency ultimately fell short of fulfilling their duty, particularly by merely passing on citizen complaints to Internal Affairs, and failing to take any further measure in response to inaction by Internal Affairs. The defense that an officer has no duty to ferret out criminal activity amongst other officers so long as the officer is not personally confronted with the citizens’ complaints of criminal activity, even though the complaints may be widely known, is not only irresponsible, but also seems to fall within the “deliberate indifference” doctrine associated with supervisory liability for constitutional violations. City of Roseville, 296 F.3d at 439-40; see also Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246 , 254 (2d Cir.2001) (stating that personal involvement of a supervisory official may be established by, among other things, “deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring.”).
Assuming, arguendo, we accept the unpersuasive argument that Lieutenants Ferency and Tate’s actions should be deemed acceptable because a reasonable supervising officer should only have to report citizen complaints and do nothing more, Sergeants Anderson and Terry would not benefit from this argument, and should, therefore, be denied qualified immunity. Nevertheless, because I disagree with the majority’s contention that Lieutenants Ferency and Tate fulfilled their duties as supervisory officers, and that Sergeant Terry and Anderson’s indifference was merely negligence, thus absolving all Defendants from potential liability, I respectfully dissent.
. Terry only mentioned that she recalled Ferency and Tate being present when these discussions occurred, thus confirming the widespread knowledge of the alleged criminal activity. (J.A. at 722.) Terry also stated that she thought Lieutenant Tate might have filed a complaint at one point, but cannot be certain. (J.A. at 723.)
. In footnote 1 of the majority opinion, the majority suggests that no evidence exists in the record to contradict Anderson and Terry's assumptions that Internal Affairs would be notified of any complaints resulting from officers' criminal behavior. Nevertheless, we need not rebut evidence of Anderson’s assumptions when it is unreasonable for supervising officers to believe that Internal Affairs was aware of reports of subordinate officers' criminal behavior when the Defendants themselves saw no corrective action being taken, and such abuses continued. The majority opinion absolves Sgts. Anderson and Terry of all liability under the unsupportable supposition that Anderson and Terry's assumptions *391 were reasonable and that the responsibility, and thus the fault, belongs with the anonymous or unidentified officers who supposedly received citizen complaints or witnessed police misconduct first hand. The majority’s argument in this regard is unpersuasive.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8424901. Public record. Not legal advice.