Edwards v. Balch Springs, Texas

Case: 22-10269 Document: 00516781836 Page: 1 Date Filed: 06/09/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 9, 2023

No. 22-10269 Lyle W. Cayce

Clerk

Odell Edwards, individually and as representative of The Estate of

Jordan Edwards, Deceased,

Plaintiff—Appellant,

versus

The City of Balch Springs, Texas,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:17-CV-1208

Before Elrod, Haynes, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

The City of Balch Springs Police Department hired an officer who a

jury later convicted of murdering a teenage boy while on duty. Edwards (the

boy’s father) sued the City under 42 U.S.C. § 1983. The district court

granted the City’s motion for summary judgment, reasoning that the

department’s use-of-force policy was constitutional, and also that Edwards’s

training, supervisory, and disciplinary theories of liability lacked factual

support. We follow a different line of reasoning in some respects, but we

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No. 22-10269

agree that the district court reached the result that our precedent requires,

and we therefore AFFIRM.

I

Jordan Edwards attended a house party in Balch Springs, Texas on the

evening of April 29, 2017. Jordan’s two brothers and two friends also

attended, as did several other teenagers. Officers Roy Oliver and Tyler Gross

of the Balch Springs Police Department responded to the house after a 9-1-1

call reported underage drinking. At that point the party dissolved, and the

five boys returned to their car.

While Officers Oliver and Gross were in the house, gunfire erupted

across the street. The officers heard the shots and ran outside toward the

sound. The boys, too, heard the shots from their car. Vidal Allen, one of

Jordan’s brothers, was behind the wheel. He tried to drive away from the

shots, but a vehicle was blocking the road. So he reversed the car—moving

temporarily toward the shots, but ultimately aiming for and moving toward an

intersection that offered an alternate route to escape the area. Gross yelled

for the car to stop, but Vidal continued in reverse, reached the intersection,

put the car in drive, and then drove forward and away from the shots.

Oliver recounts that the car then accelerated “at/by” the officers and

that Gross was “extremely close” to the boys’ car. Gross struck and

shattered the car’s rear passenger window, and less than half a second later,

Oliver fired his first of five shots. One of those bullets struck Jordan in the

head, killing him. Edwards contends that there was no immediate risk of harm

to anyone when Oliver opened fire. He also asserts that Oliver shot at the

car’s rear—both while the car was driving away from the officers and after it

had passed them.

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Three days later, the City fired Oliver. A Texas jury found Oliver

guilty of murder, and the Texas Court of Appeals affirmed that conviction. 1

The Court of Criminal Appeals of Texas granted Oliver’s petition for

discretionary review but later dismissed it as improvidently granted. 2 Oliver

was sentenced to fifteen years in prison.

Meanwhile, Edwards (who is Jordan’s father) filed a civil suit against

both Oliver and the City under 42 U.S.C. § 1983. Oliver moved for summary

judgment based on qualified immunity, but the district court denied that

motion, and this court affirmed.3 Likewise, the City moved to dismiss,

arguing that Edwards had failed to state a municipal-liability claim. The

district court also denied that motion. At various times the case featured

additional plaintiffs, but those individuals have since settled their claims.

Other theories of relief (beyond § 1983) were presented below but are not

relevant to this appeal.

After discovery closed, the City moved for summary judgment, urging

that Edwards had failed to present evidence sufficient to establish the

necessary elements of a § 1983 claim for municipal liability. The magistrate

judge entered findings and conclusions recommending that the district court

grant the City’s motion because “the City’s use-of-deadly-force policy . . . is

constitutional” and “was not the moving force of Oliver’s conduct,” and

because “Edwards has not raised a fact question as to whether the City was

deliberately indifferent with respect to his failure-to-supervise or -discipline

claim.” The district court accepted the magistrate’s findings, conclusions,

1

Oliver v. State, No. 05-18-01057-CR, 2020 WL 4581644, at *1 (Tex. App.—Dallas

Aug. 10, 2020, pet. dism’d).

2

Oliver v. State, No. PD-0845-20, 2022 WL 2240200, at *1 (Tex. June 22, 2022).

3

See Edwards v. Oliver, 31 F.4th 925, 927 (5th Cir. 2022).

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and recommendation, and it granted the City’s motion. Edwards timely

appealed.

II

This district court had jurisdiction under 28 U.S.C. § 1331. That court

granted and certified as final a partial summary judgment dismissing all of

Edwards’s claims against the City (even though some of Edwards’s civil

claims are still pending against Oliver). We have appellate jurisdiction under

28 U.S.C. § 1291.4 We “review summary judgments de novo, applying the

same standards as the district court.”5 Summary judgment is proper when

“there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.”6

III

A plaintiff may sue a municipality for a violation of federal rights that

occurs “under color of any statute, ordinance, regulation, custom, or

usage.”7 To succeed, the plaintiff must identify a federal right that was

violated “pursuant to an official municipal policy.” 8 This claim, also known

as a Monell claim, requires “(1) an official policy (2) promulgated by the

municipal policymaker (3) [that] was the moving force behind the violation

of a constitutional right.”9 To establish the third element, the plaintiff must

4

See Fed. R. Civ. P. 54(b) (“[W]hen multiple parties are involved, the court

may direct entry of a final judgment as to one or more, but fewer than all, . . . parties[.]”).

5

Students for Fair Admissions, Inc. v. Univ. of Tex. at Austin, 37 F.4th 1078, 1083

(5th Cir. 2022).

6

Fed. R. Civ. P. 56(a).

7

42 U.S.C. § 1983.

8

Liggins v. Duncanville, 52 F.4th 953, 955 (5th Cir. 2022) (quoting Monell v. Dep’t

of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978)).

9

Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009).

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show either that “‘the policy itself was unconstitutional’” or that “‘[the

policy] was adopted with deliberate indifference to the known or obvious

fact’ that a specific constitutional violation would follow.”10 A plaintiff who

alleges that a policy was one of failure-to-train must show that the failure

“‘constituted deliberate indifference to the plaintiff’s constitutional

rights.’”11

Edwards argues that the City’s use-of-force policy is facially

unconstitutional as a matter of law. He also argues that factual questions

remain regarding an alleged policy under which the City failed to train,

supervise, or discipline its officers. We disagree on both fronts.

A

If an official policy “‘itself violates federal law, or directs an employee

to do so,’”12 then the policy is facially unconstitutional, and “it necessarily

follows . . . that a constitutional violation will most likely occur.” 13 When that

happens, the facially unconstitutional policy’s mere existence satisfies the

moving-force requirement that is Monell’s third element.14 On the other

hand, a “facially innocuous policy will support liability” only if “it was

promulgated with deliberate indifference to the known or obvious

10

Liggins, 52 F.4th at 955 (quoting Webb v. Town of Saint Joseph, 925 F.3d 209, 219

(5th Cir. 2019)).

11

Hutcheson v. Dallas Cnty., 994 F.3d 477, 482 (5th Cir. 2021) (quoting Pena v. City

of Rio Grande City, 879 F.3d 613, 623 (5th Cir. 2018)); see Shumpert v. City of Tupelo, 905

F.3d 310, 317 (5th Cir. 2018) (citing City of Canton v. Harris, 489 U.S. 378, 390 (1989)).

12

Doe v. United States, 831 F.3d 309, 318 (5th Cir. 2016) (emphasis omitted)

(quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404–05 (1997)).

13

Burge v. St. Tammany Par., 336 F.3d 363, 370 (5th Cir. 2003) (citing Piotrowski v.

City of Houston, 237 F.3d 567, 579 (5th Cir. 2001)).

14

See id.

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consequences that constitutional violations would result.” 15 However, we

know of no cases from this circuit explaining how to determine whether a

formal, written policy “itself violates federal law” 16 such that it is

“unconstitutional on its face” rather than “facially innocuous” under

Monell’s moving-force element.17 Indeed, a district court recently remarked

that it was not “aware” of a “guide for analyzing a city’s written policy” or

of any “caselaw that provides a roadmap for such analysis.”18

The Supreme Court has held that “recovery from a municipality is

limited to acts that are, properly speaking, acts of the municipality—that is,

acts which the municipality has officially sanctioned or ordered.”19 And that

Court has indicated that a policy is not facially unconstitutional just because

it commits some decisions to an officer’s discretion, for “[i]f the mere

exercise of discretion . . . could give rise to a constitutional violation, the

result would be indistinguishable from respondeat superior liability.”20

Following that precedent, some of our sister circuits have held that a

written policy cannot be facially unconstitutional solely due to instructions

that it leaves out. For example, the Eighth Circuit has held that a policy that

15

Balle v. Nueces Cnty., 952 F.3d 552, 558 (5th Cir. 2017) (internal quotation marks

and citation omitted).

16

Doe, 831 F.3d at 318 (emphasis omitted) (internal quotation marks omitted).

17

Burge, 336 F.3d at 370.

18

Roundtree v. City of San Antonio, No. SA-18-CV-01117-JKP-ESC, 2022 WL

903260, at *7 (W.D. Tex. Mar. 28, 2022).

19

Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (emphasis added)

(internal quotation marks omitted); see also id. at 483 (plurality opinion) (“We hold that

municipal liability under § 1983 attaches where—and only where—a deliberate choice to

follow a course of action is made from among various alternatives by the official or officials

responsible for establishing final policy with respect to the subject matter in question.”).

20

City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988).

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“fails to give detailed guidance that might have averted a constitutional

violation by an employee” is not thereby unconstitutional.21 Likewise, the

Ninth Circuit has held that a policy’s “failure to implement procedural

safeguards to prevent constitutional violations” is an “omission” and

therefore cognizable only under the deliberate-indifference standard.22 And

the Eleventh Circuit has held that “the deliberate indifference standard

applies to section 1983 claims basing liability on a municipality’s actions in

failing to prevent a deprivation of federal rights.” 23

We agree. An official, written policy is “itself” unconstitutional only

if it affirmatively allows or compels unconstitutional conduct. 24 But where

such an official, written policy merely commits some decisions to an

individual officer’s on-the-scene discretion, or gives some detailed

instructions while omitting others, then that policy satisfies Monell’s moving-

force element only if those features stem from the policymaker’s deliberate

indifference.

Edwards argues that the City’s policy is facially unconstitutional

because it contains “no immediacy requirement necessary to justify an

officer’s use of deadly force” and because it calls “for an officer to use the

21

Szabla v. City of Brooklyn Park, 486 F.3d 385, 392 (8th Cir. 2007); see also Moyle

v. Anderson, 571 F.3d 814, 818 (8th Cir. 2009) (“A policy which does not ‘affirmatively

sanction’ unconstitutional action, and which instead relies on the discretion of the

municipality’s employees, is not an unconstitutional policy.” (emphasis added) (quoting

Seymour v. City of Des Moines, 519 F.3d 790, 800 (8th Cir. 2008))).

22

Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012).

23

Davis v. DeKalb Cnty. Sch. Dist., 233 F.3d 1367, 1376 (11th Cir. 2000) (citing

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998)).

24

Doe, 831 F.3d at 318 (emphasis omitted) (internal quotation marks omitted).

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officer’s own subjective beliefs in determining whether deadly force was

justified.” Neither argument succeeds.

1

When a suspect “‘poses no immediate threat to the officer . . . , the

harm resulting from failing to apprehend him does not justify the use of

deadly force to do so.’”25 Edwards says that this language reflects a universal

“immediacy” requirement that applies to any exercise of deadly force. From

that initial premise, he argues that the City’s use-of-force policy

unconstitutionally “permits officers to use deadly force when no immediate

threat of harm actually exists.”

Edwards’s first premise is undoubtedly correct, but his argument fails

on the second. The City’s use-of-force policy provides (emphases added):

Law enforcement officers are authorized to use deadly force . . .

[t]o protect the officer or others from what is reasonably

believed to be a threat of death or serious bodily injury.

[Except that] . . . .

2. Firearms shall not be discharged at a moving vehicle in an

attempt to disable the vehicle.

3. . . . [O]fficers threatened by an oncoming vehicle should

attempt to move out of its path, if possible, instead of

discharging a firearm at it or any of its occupants. However,

if an officer reasonably believes that a person is immediately

threatening the officer or another person with deadly force

by means of a vehicle, an officer may use deadly force

against the driver of the vehicle.

25

Cole v. Carson, 935 F.3d 444, 453 (5th Cir. 2019) (emphasis added) (quoting

Tennessee v. Garner, 471 U.S. 1, 11 (1985)).

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The district court held that both exceptions prohibit the shots that Oliver

fired. Under this reasoning, the City is off the hook—either because the

second exception says that “[f]irearms shall not be discharged at a moving

vehicle,” or because the third exception includes an immediacy requirement.

Edwards argues that the district court invoked these exceptions only

after it improperly resolved questions of fact. As for the second exception,

Edwards argues that there is a fact question because “Oliver’s justification

for shooting at the vehicle . . . was not to disable the vehicle . . . , but because

he believed that a shot had been fired from the vehicle.” Edwards also says

that there is a fact issue as to the third exception because the car was not

“oncoming” but rather was “headed away from the officers” when Oliver

opened fire. Therefore (according to Edwards), because the second and third

exceptions do not apply, the policy’s “overriding ‘use of deadly force’

authorization” governs the shooting. But because the general authorization

“is not at all constrained by immediacy,” the policy is “unconstitutional on

its face.” So the argument goes.

Edwards’s argument errs, but not necessarily for the reasons that the

district court gave. Even if the Constitution always requires immediacy, and

even if the policy’s second and third exceptions do not apply, the policy’s

general use-of-deadly-force authorization does not affirmatively allow or

compel officers to use deadly force even when immediacy is lacking. Rather,

the general authorization is silent about immediacy. That silence permissibly

commits judgments about immediacy to each officer’s own “discretion.” 26

Conceptually, too, Edwards’s argument falters. For example, his

complaint alleges that “the [City’s] use-of-force policy is unconstitutional

because it authorizes officers to use deadly force . . . without instructing [them]

26

Praprotnik, 485 U.S. at 126.

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that the threat must be immediate.” If omissions such as these render a policy

facially unconstitutional, then it is hard to see what room is left for failure-to-

train claims that must satisfy the “deliberate indifference” standard. 27 On

the contrary, a written policy is not facially unconstitutional just because it

leaves out “detailed guidance that might have averted a constitutional

violation.”28 If it were otherwise, a use-of-force policy would be facially

constitutional only if it recited every jot and tittle of the applicable caselaw.

Surmounting that logistical hurdle would produce a behemoth free of any

practical use—less a policy than a treatise. Edwards’s “immediacy”

argument is therefore no basis for reversal.

2

Edwards’s “subjectivity” argument fares no better. The Fourth

Amendment prohibits “objectively unreasonable” force. 29 An “officer’s

reasonableness in using force . . . is analyzed under an objective standard ‘in

light of the facts and circumstances confronting the officer, without regard to

his or her underlying intent or motivation.’”30 Permissible factors under this

standard include “the severity of the crime at issue, whether the suspect

poses a threat to the safety of the officers or others, and whether the suspect

is actively resisting arrest.”31 “[T]he ‘threat-of-harm factor typically

predominates the analysis when deadly force has been deployed.’” 32

27

See Balle, 952 F.3d at 558.

28

Szabla, 486 F.3d at 392.

29

Hutcheson, 994 F.3d at 480; U.S. Const. amend. IV.

30

Mason v. Lafayette Par., 806 F.3d 268, 275 (5th Cir. 2015) (emphasis added)

(alterations accepted) (quoting Graham v. Connor, 490 U.S. 386,397 (1989)).

31

Crane v. City of Arlington, 50 F.4th 453, 463 (5th Cir. 2022) (citing Graham, 490

U.S. at 396).

32

Id. at 463 (quoting Harmon v. City of Arlington, 16 F.4th 1159, 1163).

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The City’s use-of-force policy requires that:

1. [I]n determining the necessity for force and the appropriate

level of force, officers shall evaluate each situation in light

of the known circumstances, including, but not limited to,

the seriousness of the crime, the level of threat or resistance

presented by the subject, and the danger to themselves and

the community.

2. In evaluating the reasonable application of force, officers

may consider their own age, size, strength, and skill level

with department weapons, state of health, and the number

of officers opposing the number of suspects.

Edwards argues that this policy is unconstitutional because it allows

an officer to rely on “subjective criteria,” “subjective beliefs,” and

“subjective evaluations.” Specifically, Edwards says that the policy is

“unconstitutional on its face” because it “would justify the use of deadly

force by a younger, more inexperienced officer . . . , even if the situation did

not objectively call for the use of deadly force.” This argument breaks down

because the policy excerpts that Edwards relies on set forth only objective

factors—that is, “the facts and circumstances confronting the officer.” 33

While Edwards asserts that the policy would allow deadly force anytime an

officer “felt threatened by someone,” he does not connect that assertion to

any language from the policy. On the contrary, a close look at the policy

reveals that each factor is objective.

Edwards does not dispute that the first paragraph contains only

objective factors. Nor could he. It is beyond debate that officers may consider

factors such as “the seriousness of the crime, the level of threat or resistance

presented by the subject, and the danger to themselves and the

33

Mason, 806 F.3d at 275 (internal quotation marks and citation omitted).

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community.”34 Instead, Edwards takes issue with the factors that appear in

the second paragraph. But these factors are likewise objective

“circumstances confronting the officer”35—obviously so for “age, size, . . .

and the number of officers opposing the number of suspects.” The remaining

three factors may not as readily reduce to numerical certainty, but that does

not mean that they lack objectivity. “Strength,” “skill level,” and “state of

health” are all questions of fact, not feeling. Each of these inquiries relates to

the predominant factor, which is “whether the suspect poses a threat to the

safety of the officers.”36 It is true that some officers are stronger than others,

or more proficient with weapons, but Edwards errs by equating those

objective physical variances with the subjective mental appraisals that the

Constitution prohibits.

Because the policy does not affirmatively allow or compel an officer to

use deadly force based solely on the officer’s own “underlying intent or

motivation,”37 Edwards’s argument from subjectivity fails.

B

“[A] municipality’s failure to train its police officers can without

question give rise to § 1983 liability.” 38 To succeed, the plaintiff must

demonstrate that: “(1) the city failed to train or supervise the officers

involved; (2) there is a causal connection between the alleged failure to

supervise or train and the alleged violation of the plaintiff’s rights; and (3)

34

See, e.g., Crane, 50 F.4th at 463 (quoting Graham, 490 U.S. at 396).

35

Mason, 806 F.3d at 275 (internal quotation marks and citation omitted).

36

Crane, 50 F.4th at 463.

37

Mason, 806 F.3d at 275 (internal quotation marks and citation omitted).

38

World Wide St. Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 755 (5th

Cir. 2009).

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the failure to train or supervise constituted deliberate indifference to the

plaintiff’s constitutional rights.’”39 “[F]or liability to attach based on an

inadequate training claim, a plaintiff must allege with specificity how a

particular training program is defective.”40 Deliberate indifference is a “high

standard” that requires “a complete disregard of the risk that a violation of a

particular constitutional right would follow the decision.” 41

“To show deliberate indifference, a plaintiff normally must allege a

pattern of similar constitutional violations by untrained employees.” 42 “A

pattern requires similarity and specificity; prior indications cannot simply be

for any and all ‘bad’ or unwise acts, but rather must point to the specific

violation in question.”43 Because deliberate indifference typically requires a

pattern, “we have stressed that a single incident is usually insufficient to

demonstrate deliberate indifference.”44 The “‘single incident exception’ is

39

Pena, 879 F.3d at 623 (additional parentheses added) (quoting Thompson v.

Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001)).

40

Trammell v. Fruge, 868 F.3d 332, 345 (5th Cir. 2017) (quoting Zarnow v. City of

Wichita Falls, 614 F.3d 161, 170 (5th Cir. 2010)).

41

Liggins, 52 F.4th at 955 (alterations adopted) (internal quotation marks and

citations omitted ).

42

Henderson v. Harris Cnty., 51 F.4th 125, 131 (5th Cir. 2022) (internal quotation

marks and citations omitted). Compare Fuentes v. Nueces Cnty., 689 F. App’x 775, 778 (5th

Cir. 2017) (affirming summary judgment for the county because the plaintiff failed to

provide evidence of prior incidents involving the same specific wrongful action—failure to

adequately monitor an inmate on suicide watch), with Bond v. Nueces Cnty., No. 20-40050,

2022 WL 4595000, at *6–7 (5th Cir. Sept. 30, 2022) (reversing order denying leave to

amend as futile because, in the proposed amended complaint, the plaintiff cited twenty-

three examples of prior incidents involving the same specific wrongful action—failure or

refusal to provide timely medical attention).

43

Peterson, 588 F.3d at 851 (emphasis added) (alterations adopted) (internal

quotation marks and citations omitted).

44

Liggins, 52 F.4th at 956 (alterations adopted) (internal quotation marks and

citations omitted).

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extremely narrow,”45 and as an exception to the pattern requirement, it “is

generally reserved for those cases in which the government actor was

provided no training whatsoever.”46

1

Edwards argues that the City “failed to provide . . . appropriate

remedial force training.” He relies on a few examples to establish what he

sees as a factual question regarding a pattern of violations: (1) Oliver

previously “slamm[ed] Luis Medina, Jr. to the ground . . . while Medina was

experiencing an epileptic seizure,” and (2) a different officer previously

“sho[t] an unarmed male” and “assault[ed] an inmate who he claimed

verbally assaulted him.” Edwards also points to evidence of “two other

instances in which an officer shot at a moving vehicle.”

These examples lack “similarity and specificity,” and therefore they

do not “point to the specific violation in question.” 47 Oliver’s prior body-

slam is dissimilar to this case because it did not involve a moving vehicle. So

too for the different officer’s prior shooting and prior assault. While Edwards

does point to some scant evidence for two shootings that did each involve a

vehicle, he does not describe those instances at all—indeed, he does not

identify any evidence that the shootings even violated the department’s use-

of-force policy. Even for a city as small as Balch Springs, these “isolated

instances” of previous departures from the overall use-of-force policy cannot

45

Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010); see Peterson, 588 F.3d

at 850–51 (“It is thus clear that a plaintiff must demonstrate a ‘pattern of abuses that

transcends the error made in a single case.’”) (quoting Piotrowski, 237 F.3d at 582); see also

Mason, 806 F.3d at 281 (holding that plaintiff could not show Monell liability because he

had “not provided evidence of problems with [the City’s] disciplinary and investigatory

procedures outside the present case”).

46

Pena, 879 F.3d at 624.

47

Peterson, 588 F.3d at 851 (5th Cir. 2009).

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establish a pattern of deliberate indifference.48 As a result, these examples are

not enough to satisfy the causality standard that is Monell’s third element.

Edwards’s failure-to-train claim therefore falls short.

2

Edwards also argues that he raised a fact issue concerning “the City’s

failure to supervise or discipline.” He describes the “main component” of

that claim as follows: “[T]he City lacked any sort of system to identify and

track use of force incidents by their officers and, by failing to do so, created

an atmosphere that condoned and ratified reckless and dangerous behavior

by its police officers.” This allegation does not relieve Edwards of his burden

to establish “a pattern of similar constitutional violations” to show deliberate

indifference.49 Edwards responds by pointing to the irony that arises if he

must identify violations that the City refuses to track. But this argument

confuses tracking and supervision. A municipality is capable of supervising its

employees even if it does not maintain a perpetual record of their every

infraction.

Because Edwards has identified no law that requires the City to

maintain a “system to identify and track use of force incidents,” his

supervisory and disciplinary theories can succeed only if he identifies “a

pattern of similar constitutional violations.”50 He has not done so. Instead,

he points to the “violations” discussed above, plus two others: (1) Oliver,

while off-duty and without provocation, “pulled a gun on another driver

following a routine traffic accident,” and (2) in 2013, Oliver shared a

Facebook post which read that “I will never in my life be as good at anything

48

Id.

49

Henderson, 51 F.4th at 131 (internal quotation marks and citations omitted).

50

Id.

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else as I am at killing people.” As above, these incidences lack “similarity and

specificity,” and so they do not “point to the specific violation in question.”51

The prior violations that Edwards identifies certainly reflect

individual action that is “bad or unwise,” 52 but as for the City, they do not

amount to “a complete disregard of the risk that a violation of a particular

constitutional right would follow.”53 Because deliberate indifference is

absent, Edwards’s supervisory and disciplinary theories cannot succeed, and

that means that Edwards cannot satisfy Monell’s third element.

C

Edwards makes a few perfunctory references to other theories of

liability, but none comes anywhere near requiring reversal. For example, he

states that “[d]eliberate indifference can also be based on a single incident”

rather than a pattern. But he does not expound that theory, and he never

argues that any of the prior misconduct he alleges can satisfy the single-

incident test for deliberate indifference. He also argues that the City had

“insufficient hiring” practices, and that it “should not have hired Oliver.”

But his reply brief concedes that he “does not make a stand-alone negligent

hiring claim.” Hiring is relevant only if it has a “similarity and specificity”

relationship to the unlawful conduct that Edwards complains of. 54 Because

that relationship does not exist, Edwards’s “hiring” arguments are

irrelevant. Finally, he argues that: “When viewed as a whole, the prior

incidents involving other officers plus Oliver’s own violent conduct show a

51

Peterson, 588 F.3d at 851 (5th Cir. 2009).

52

Id. (internal quotation marks and citations omitted).

53

Liggins, 52 F.4th at 955 (emphasis added) (alterations adopted) (internal

quotation marks and citations omitted).

54

Peterson, 588 F.3d at 851 (emphasis added) (alterations adopted) (internal

quotation marks and citations omitted).

16

Case: 22-10269 Document: 00516781836 Page: 17 Date Filed: 06/09/2023

No. 22-10269

pattern of the excessive use of force by Balch Springs officers, from which it

is reasonable to infer that the City has a policy of ‘shoot first, ask questions

later.’” Edwards does not identify any legal support for this “as a whole”

theory of liability. On the contrary, a plaintiff cannot establish a pattern based

solely on “any and all ‘bad’ or unwise acts, but rather must point to the

specific violation in question.”55 Edwards never meets that hurdle.

IV

A local government’s official, written policy is itself unconstitutional

only if it affirmatively allows or compels unconstitutional conduct. The

City’s policy passes muster under that standard. It does not affirmatively

allow officers to use deadly force absent an immediate threat, and it does not

affirmatively allow officers to rely on subjective factors when evaluating

whether to use deadly force. Likewise, the prior constitutional violations that

Edwards relies on are too dissimilar and generalized to establish a pattern.

For that reason, Edwards cannot show that the City’s training, supervisory,

and disciplinary failures (if any) arose from deliberate indifference. In turn,

he cannot satisfy Monell’s third element.

We AFFIRM.

55

Id.

17