# Cannon v. City & County of Denver

> Court of Appeals for the Tenth Circuit · July 12, 1993 · 998 F.2d 867

URL: https://www.frixlaw.com/law-library/cases/9011893

## Case

- **Full name:** Joan CANNON and Leila Jeanne Hill, Plainntiffs-Appellants, and Terry Sullivan and Ray C. Williams, Proposed v. The CITY AND COUNTY OF DENVER D.M. Ryan, individually and as a police officer D.C. Baca, individually and as a police officer The Police Department of the City and County of Denver
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** July 12, 1993
- **Citations:** 998 F.2d 867; 1993 WL 255411
- **Precedential status:** Published
- **Opinion:** Concurrence by Anderson
- **Judges:** Anderson, Holloway, Seymour
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9011893

## Opinion text

STEPHEN H. ANDERSON, Circuit Judge,
separately concurring.
I concur in the persuasive and thorough majority opinion in this case, but do so reluctantly with regard to Part III A' of the opinion and. the disposition therein. I write separately to' express my concern about the plaintiffs’ submission intended to show that a genuine issue of fact exists regarding the existence of an alleged municipal custom or policy of arresting certain abortion protestors.
Municipal liability may indeed be premised upon “a widespread practice that, although not authorized by.written law or express municipal policy, is ‘so permanent and well settled as to constitute a “custom or usage” with the force of law.’ ” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 , 108 S.Ct. 915, 926 , 99 L.Ed.2d 107 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 , 90 S.Ct. 1598, 1613 , 26 L.Ed.2d 142 (1970)). That question is, of course, factual and, -in this case, is disputed, which suggests that the district court erred in granting summary judgment on the matter.
However, the plaintiffs’ evidence as to the existence of such a widespread practice is extremely thin. It consists of fewer than a dozen incidents over a two-year period, all involving plaintiffs in this case, and with no larger context in which to evaluate the inci *880 dents (i.e. how many anti-abortion protests occurred in the two-year period; how many, if any, occurred without similar incidents; how many protesters were there; what percentage was arrested; how many officers effected arrests and how many did not; what evidence exists other than the few arrests in question over a two-year period to show that knowledge on the part of responsible officials must be inferred; and so on). This falls short of the kind of evidence developed in Watson v. City of Kansas City, 857 F.2d 690, 696 (10th Cir.1988) (statistical evidence and evidence regarding the training given officers) and Bordanaro v. McLeod, 871 F.2d 1151, 1155-58 (1st Cir.), cert. denied, 493 U.S. 820 , 110 S.Ct. 75 , 107 L.Ed.2d 42 (1989).
Frankly, in my view if the plaintiffs’ evidence at the end of a trial remained as it now stands, the trial judge would be entitled to grant a defense motion under Fed.R.Civ.P. 50 for judgment as a matter of law. Thus, technically, the record before us now could support the grant of summary judgment to the defendant City, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 , 106 S.Ct. 2505, 2512 , 91 L.Ed.2d 202 (1986) (summary judgment for defendant appropriate unless there is “evidence on which the jury could reasonably find for the plaintiff’). However, giving the plaintiffs the benefit of the doubt and recognizing the highly factual nature of the issue, I reluctantly concur.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9011893. Public record. Not legal advice.