upholding the district court’s judgment that there was a Fourth Amendment violation when an officer shot a drunken suspect — who earlier was reported to have a gun — after the suspect resisted arrest by “flailing,” running away, and engaging in a “scuffle”
How later courts described this case
- upholding the district court’s judgment that there was a Fourth Amendment violation when an officer shot a drunken suspect — who earlier was reported to have a gun — after the suspect resisted arrest by “flailing,” running away, and engaging in a “scuffle”
- finding a Fourth Amendment vio- lation where officers beat and shot a drunk suspect during a scuffle that ensued after the suspect resisted arrest and attempted to flee on foot
- recognizing that "the violations which give rise to a substantive due process claim are necessarily more egregious than those which give rise to simple tort actions”
- stating that “any fear on the officer’s part was the fear of retaliation against [the officer’s] own unjustified physical abuse”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Graham v. Connor, 490 U.S. 386 (1989)
774 F.2d 1495, 1501-02 (11th Cir. 1985) (en banc), abrogated on other grounds by Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).
Abrogated on other grounds by Nolin v. Isbell, 207 F.3d 1253 (2000)
See Carnaby v. City of Houston, No. 4:08-cv-1366, 2009 WL 7806964, at *3 (S.D.Tex. Oct. 28, 2009); see also Gilmere v. City of Atlanta, 774 F.2d 1495, 1501-02 (11th Cir.1985), abrogated on other grounds by Nolin v. Isbell, 207 F.3d 1253, 1255-57 (11th Cir.2000).
Distinguished
Distinguished by Plakas v. Drinski, 19 F.3d 1143 (1994)
Here we distinguish Gilmere, but by doing so we neither approve nor disapprove of its holding.
The opinion
JOHNSON, Circuit Judge,
concurring in part and dissenting in part, in which HATCHETT, Circuit Judge, joins:
I join parts I, II, IV and V of the Court’s opinion. I disagree, however, with the *1512 Court’s treatment of the issue of municipal liability in this case. While part III of the opinion does not set forth any objectionable principles of municipal liability under Section 1983, it is based upon a mistaken understanding of the evidence produced at trial. I therefore respectfully dissent from the Court’s holding in part III.
I. EVIDENCE NEEDED TO PROVE MUNICIPAL LIABILITY
In Monell v. Department of Social Services of New York, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), the Supreme Court interpreted 42 U.S.C.A. § 1983 (West 1981) to make municipalities liable for deprivations of rights secured by the Constitution and laws of the United States whenever the municipality itself subjects a person or causes a person to be subjected to that deprivation. While the city is not liable on a respondeat superior basis, it is liable for deprivations for which it fairly can be blamed. According to the Monell decision, a plaintiff shows that the municipality has subjected him or her to a deprivation if a “custom” or “policy” of the city is the “moving force” behind the deprivation. Id. at 690-94 , 98 S.Ct. at 2035-38 . Therefore, in order to hold a municipality liable under Section 1983 a plaintiff must prove (1) the existence of a custom or policy, (2) some fault on the part of the city in establishing or tolerating the custom or policy, and (3) a sufficient causal link between the custom or policy and the legal deprivation.
A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality. Hearn v. City of Gainesville, 688 F.2d 1328, 1334 (11th Cir.1983). A custom is a practice that is so settled and permanent that it takes on the force of law. Monell, 436 U.S. at 690-91 , 98 S.Ct. at 2035-36 . A pattern of injuries is not necessary to show the existence of a custom or policy, for a municipality may deliberately establish a practice that leads to a single deprivation. Provided the requisite fault and causal link are present, the municipality may be held liable for the deprivation. See Trezevant v. City of Tampa, 741 F.2d 336 (11th Cir.1984). Proof of a single incident of unconstitutional activity may be sufficient to impose liability under Monell where proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy which can be attributed to a municipal policymaker. City of Oklahoma City v. Tuttle, — U.S. —, —, 105 S.Ct. 2427, 2435 , 85 L.Ed.2d 791 (1985) (plurality opinion); id. at-, 105 S.Ct. at 2439 (Brennan, concurring) (Section 1983 cause of action “is as available for the first victim of a policy or custom that would foreseeably and avoidably cause an individual to be subjected to deprivation of a constitutional right as it is for the second and subsequent victims”).
The second element of proof necessary to establish municipal liability has to do with fault. The Supreme Court’s interpretation of the legislative history of Section 1983 in Monell is now understood to mean that municipal liability should not be imposed when the municipality was not itself at fault. Tuttle, supra, at —, 105 S.Ct. at 2433 . Hence, a city may not be held liable under Section 1983 for every constitutional violation caused by its policies and customs; the city must be at fault in some sense for establishing or maintaining the custom or policy. A city can be blamed for establishing a custom or policy if constitutional violations are the foreseeable result of that decision.
Without attempting to define the exact boundaries of the fault standard, it can be said that city policies that are grossly negligent or deliberately indifferent to constitutional rights could lead to municipal liability because constitutional deprivations are the foreseeable result of such policies. See Herrera v. Valentine, 653 F.2d 1220 (8th Cir.1981); Owens v. Haas, 601 F.2d 1242 (2d Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 483 , 62 L.Ed.2d 407 (1979). While the mere right to control without any exercise of control or direction or any failure to supervise is not enough to support Section 1983 liability, Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976); see Monell, 436 U.S. at 694 n. 58, 98 S.Ct. at 2037 n. 58; Polk County v. Dodson, 454 *1513 U.S. 312, 326 , 102 S.Ct. 445, 454 , 70 L.Ed.2d 509 (1981) (allegation of administrative negligence fails to state claim under Section 1983), the fact that city officials do not take affirmative actions does not always absolve them of blame, for deliberate inaction can foreseeably lead to constitutional deprivations. Cf . Languirand v. Hayden, 717 F.2d 220 (5th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2656 , 81 L.Ed.2d 363 (1984).
The final element of proof for municipal liability is causation: the plaintiff must show that the municipal policy or custom was the “moving force of the constitutional violation.” Monell, supra, 436 U.S. at 694 , 98 S.Ct. at 2037 . Once a plaintiff has established that a policy exists and that the city is at fault for establishing or maintaining the policy or custom, there remains only the straightforward task of showing that the deprivation of rights secured by the Constitution or laws of the United States resulted from the policy in question.
II. EVIDENCE PRESENTED IN THIS CASE
The district court in this case held the city liable for the shooting because it had negligently failed to give Sampson psychological testing or training after he was rehired. I agree with the majority that this finding is an insufficient basis for municipal liability, for the improper selection and training of a single police officer did not constitute a settled custom or policy of the city. Cf. Berry v. McLemore, 670 F.2d 30, 33 (5th Cir.1982). Nevertheless, the judgment against the city should only be vacated and remanded to the district court rather than being reversed because the district court failed to make findings regarding evidence presented by the plaintiff that might have established municipal liability under the proper legal standards.
The district court’s order states that the plaintiff presented evidence of various aspects of the city's allegedly inadequate selection, training and supervision of officers. In addition to the failure to test and retrain Sampson, the plaintiff presented testimony regarding the city’s general failure to administer psychological tests to applicants until sometime before Craig was hired. There was also considerable evidence regarding the city’s alleged failure to require officers to carry nightsticks. Despite the availability of various city “policies” upon which to base liability, the order relied exclusively on the failure to test and retrain Sampson: “Plaintiff alleges a wide range of inadequacies [regarding the selection, training and supervision of officers], but the Court needs to consider only one.”
Therefore, the record does not yet reveal whether the proof submitted by the plaintiff was sufficient to establish municipal liability. While one portion of the evidence (the portion relied upon by the district court) was insufficient, factual findings regarding other pieces of evidence have not yet been made. I would vacate the judgment against the city and remand for further factfinding in light of the legal principles discussed above.