Donald L. Hays, Jr., and Michael C. Potter, Cross-Appellants v. Jefferson County, Kentucky, Wilbur Bilyeu and Russell McDaniel Cross-Appellees

MERRITT, Circuit Judge,

dissenting.

This case raises two sets of issues. One concerns the standard of liability of the County under 42 U.S.C. § 1983 and directly under the Fourteenth Amendment. The *876 other concerns the standard of liability of the police chief and his deputy as supervisory officials under § 1983.

I. LIABILITY OF THE COUNTY

With respect to the County, I believe that the reasoning of Monell v. New York City Department of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), requires that plaintiffs show that the County followed a “policy or custom” of encouraging, or at least not discouraging, police brutality in order to recover under § 1983 or in a direct action under the Fourteenth Amendment. The District Court directed a verdict on the § 1983 claim because plaintiffs failed to offer proof of a “policy or custom” under Monell . But the District Court let the direct Fourteenth Amendment action under § 1331 against the County go to the jury under a negligence standard. This was error. Although it is unclear after Monell whether the Supreme Court will approve this Circuit’s implication of a Bivens-type direct action under the Fourteenth Amendment, it is clear that in this Circuit the Monell standard also applies to direct actions against municipalities, as Judge Phillips stated for the Court in Jones v. City of Memphis, 586 F.2d 622, 624-25 (6th Cir. 1978). Since there is no evidence that the harm in question here resulted from a county “policy or custom,” tacitly or expressly adopted or followed by the county or its officials, I would hold that the proof is insufficient to permit the case against the County to go to the jury on the direct Bivens-type action. In order to establish such a policy or custom, the plaintiff must at least show that the city had notice of a prior pattern of police misconduct likely to recur if no steps were taken to prevent it. As I understand the record, there was no such proof in this case.

II. LIABILITY OF SUPERVISORY POLICE OFFICIALS UNDER § 1983

With respect to the two individual defendants, neither negligence alone, as the District Court charged the jury, nor gross negligence alone, as the majority seems to hold, should be the exclusive standard of liability for supervisory police officials under § 1983. If police officials do not directly participate in a federal constitutional violation, the question is under what circumstances should they be held accountable when their agents commit an illegal seizure of the citizen’s person or engage in conduct amounting to summary punishment. Under what circumstances should such supervisory officials be liable for failing in their duty to “protect” citizens against police brutality?

Where the supervisory official does not direct, encourage, or otherwise participate in the wrong committed by his agent, it seems clear that “fault” — a “neglect” or refusal to train or take other protective action in advance — is only one element of liability. Another element is also necessary. The official must have “knowledge” that the constitutional injury is likely to occur unless action is taken. There must be some past pattern of misconduct, some prior misbehavior, or other prior act that puts the official on notice of the potential constitutional deprivation. In this case the police officials affirmatively tried to stop the advance of the policeman on the crowd of anti-busing demonstrators, and as our Court states at page 874 of its opinion, there is no allegation or proof that the brutality was “part of a pattern of past misconduct.” Therefore, although a jury might find on the facts of this case a “neglect” to give police officers adequate riot training, it could not find the requisite “knowledge” or “notice” of prior misconduct.

The knowledge element is derived from the purpose of § 1983. It was part of the anti-Ku Klux Klan act of 1871, a primary purpose of which was to impose a “duty of protection” on local officials, a duty to protect blacks from the night riders and others who systematically deprive them of their civil rights. In light of this purpose, it is clear that police officials should be liable when they fail to take any steps to remedy a known pattern of police brutality. Where, however, there is no proof of a pattern of prior misconduct known to the *877 officials, they should not be held liable under § 1983 for simply failing to provide adequate training.

This “knowledge” element seems implicit in Justice Brennan’s analysis of § 1983 for seven members of the Court in Monell , as well as in Justice Powell’s concurring opinion. In analyzing the “language of § 1983” Justice Brennan states:

Indeed, the fact that Congress did specifically provide that A’s tort became B’s liability if B “caused” A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent. See Rizzo v. Goode, 423 U.S. 362, 370-71 , 96 S.Ct. 598, 603-604 , 46 L.Ed.2d 561 (1976).

This sentence is followed by a footnote which states in pertinent part:

Support for such a conclusion can be found in the legislative history.... The primary constitutional justification for the Sherman Amendment was that it was a necessary and proper remedy for the failure of localities to protect citizens .... and according to Sherman, Shellabarger, and Edmunds, the amendment came into play only when a locality was at fault or had knowingly neglected its duty to provide protection. (Emphasis added.)

436 U.S. at 692 , 98 S.Ct. at 2036 . This language from Monell indicates to me that knowledge of the impending constitutional violation is a necessary element of the constitutional tort.

In his concurring opinion which attempts to further explain the rationale of the majority opinion, Justice Powell notes that liability under § 1983 should be read as limited to “affirmative conduct,” id. at 706, 98 S.Ct. at 2043 , or read “as a limitation of the statutory ambit to actual wrongdoers, i.e., a rejection of respondeat superior or any other principle of vicarious liability.” Id. at 707 , 98 S.Ct. at 2044 .

Thus, considering the language of § 1983, its original purpose and the statements of the Supreme Court concerning liability in Monell , I conclude that in police brutality cases against supervisory officials § 1983 requires plaintiff to show knowledge of a past pattern of misconduct or some prior misbehavior or some other prior act that puts the official on notice of the potential constitutional deprivation. Since there was no showing of the knowledge element of the wrong in this case, I would reverse and instruct the District Court to enter judgment for the supervisory police officials.