Appendix — District of Columbia v. Parker

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88-810 ~

No. 88-

In The

Supreme Court of the United States

Ocroser TERM, 1988

District or CoLuMBIA,

Petitioner,

Dona.p R. PARKER, et al,

Respondents.

Appendix to Petition for Writ

of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

Freperick D. Cooke, Jr.

Corporation Counsel, D.C.

*CHARLES L. REISCHEL,

Deputy Corporation Counsel, D.C.

Appellate Division

Donna M. Murasky,

Assistant Corporation Counsel, D.C.

Attorneys for Petitioner

Room 305, District Building

1350 Pennsylvania Ave., N.W.

Washington, D.C. 20004

Telephone: (202) 727-6252

*Counsel of Record

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals for the

District of Columbia Circuit (June 17, 1988) .... la

Order & Opinion of the United States District Court for

the District of Columbia (January 29, 1987)....... 44a

Judgment of the United States Court of Appeals for the

District of Columbia Circuit (June 17, 1988) ..... 6la

Order of the United States Court of Appeals for the

District of Columbia Circuit denying Petition for Re-

enrine (Ameast 26, 1008)... .... 2... wc eens. 62a

Order of the United States Court of Appeals for the

District of Columbia Circuit denying suggestion for

rehearing en banc (August 18, 1988) ............. 63a

Judgment of the United States District Court for the

District of Columbia (October 3, 1985) ........... 64a

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S.App.D.C. Reports. Users are requested

to notify the Clerk of any formal errors in order that corrections may be

‘

Rnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-7039

DONALD R. PARKER, et al.

Vv.

DISTRICT OF COLUMBIA, APPELLANT

Appeal from the United States District Court

for the District of Columbia

(Civil Action No. 83-03382)

Argued November 16, 1987

Decided June 17, 1988

Donna M. Murasky, Assistant Corporation Counsel,

D.C., with whom Frederick D. Cooke, Jr., Acting Cor-

poration Counsel, D.C., and Charles L. Reischel, Deputy

Corporation Counsel, D.C. were on the brief for appellant.

William W. Taylor, III, with whom Roger E. Zucker-

man and Christine Nicholson were on the brief for appel-

be filed within Bech ny yp Apnll nayorryae The

lees. Michael R. Smith also entered an appearance for

appellees.

Before: MIKVA and WILLIAMS, Circuit Judges, and

GORDON, *Senior District Judge.

Opinion for the Court filed by Senior District Judge

GORDON.

Dissenting Opinion filed by Circuit Judge WILLIAMS.

GorDON, Senior District Judge: Don R. Parker sus-

tained serious injuries after being shot by an officer of

the District of Columbia metropolitan police department

Repeat Offenders Project [ROP]. This is an appeal from

a judgment based upon a jury verdict that awarded Mr.

Parker $425,046.67 in damages and nominal loss of con-

sortium damages to his wife, Betty. The Parkers sued

the District of Columbia and the ROP officers involved ;

they alleged state law assault and battery and violations

of 42 U.S.C. § 1983 arising out the District’s failure ade-

quately to train, dnfin and supervise its ROP officers

in matters of extrajirisdictional arrest and disarmament.

Prior to trial, the Parkers dropped their claims against

the individual officers and proceeded only against the

District.

At the close of all the evidence in the trial, the court

denied the District’s motion for a directed verdict. The

case went to the jury, which found in favor of the Dis-

trict on the state law claims, but against the District

with respect to the section 1983 claim. The District

moved for judgment notwithstanding the verdict, but the

court denied this motion. The District now challenges

the court’s ruling on the motion for judgment n.0.v. and

aspects of the charge tendered to the jury. For the

reasons set forth below, we affirm.

* Of the United States District Court for the Eastern Dis-

trict of Wisconsin, sitting by designation pursuant to 28 U.S.C.

§ 294(d).

I. BACKGROUND

This case is the result of confusion and a series of

mistakes leading to tragic consequences. On the morning

of November 15, 1982, two ROP officers, William Hayes

and Ronnie Motley, set out to locate Don Parker, for

whom an armed robbery felony warrant was outstanding.

To begin their search, the officers traveled to suburban

Maryland in plain clothes and in an unmarked car, a

1974 Pontiac station wagon. There they intended to in-

terview Betty Parker. The officers did not bring the

Parker warrant because they mistakenly assumed that

their arrest authority in Maryland was curtailed and

that Don and Betty Parker did not live togther. When

they arrived at the Parker address, they unsuccessfully

attempted to contact their dispatcher by radio. Unfor-

tunately, the officers were parked in a radio “dead spot,”

and they could not communicate with the ROP.

When the officers went to the door and identified them-

selves to Ms. Parker, she brought Mr. Parker to the door.

Mr. Parker invited the officers into the house. The offi-

cers described the purpose of their visit and requested

that Mr. Parker voluntarily accompany them to the D.C.

police department. Mr. Parker denied any wrongdoing;

indeed, the armed robbery charge was eventually

dropped. Mr. Parker also refused to leave with the two

men who were not in possession of a warrant. Because

his phone was disconnected, Mr. Parker asked the officers

to radio either the local police or their ROP supervisors

regarding the warrant, but the officers’ dead radio barred

that procedure. Finally, Mr. Parker ostensibly agreed to

accompany the officers but asked for the opportunity to

change his clothes. Officers Hayes and Motley granted this

request; Mr. Parker went into his bedroom and escaped

through the window into the neighboring woods.

Once the officers realized that they had been duped,

they jumped into their station wagon and chased Mr.

Parker around the surrounding neighborhood. To escape,

Mr. Parker commandeered a late model Volvo, one that

had just careened into the rear end of the officers wagon.

Officer Hayes rushed out of his vehicle and tried to ex-

tricate Mr. Parker from the Volvo, but he was unable to

accomplish this task. Operating under the erroneous as-

sumption that Mr. Parker was threatening the driver of

the car and that he was armed, Officer Hayes yelled :

“Freeze Parker, don’t do it.” Transcript at 200. Mr.

Parker continued to turn towards Officer Hayes, and the

officer shot at him four times. Don Parker was hit twice,

once in the abdomen and once in the spine, causing

serious and permanent injury.

II. ANALYSIS

A. Standard of Review

In reviewing Judge Green’s ruling on judgment n.0.v.,

we apply the standard applied when reviewing directed

verdict rulings. See Vander Zee v. Karabatsos, 589 F.2d

723, 726 (D.C. Cir. 1978), cert. denied, 441 US. 962

(1979). A directed verdict or judgment n.o.v. is inappro-

priate unless there is only one reasonable conclusion to

be drawn from the evidence and that conclusion is incon-

sistent with the verdict rendered. Morgan v. District of

Columbia, 824 F.2d 1049, 1056 (D.C. Cir. 1987). Our

task on review is not to weigh or reconsider the evidence.

presumption that the jury resolved all factual dis-

putes in favor of the prevailing party. Moreover,

we must give the advantage of every fair and rea-

that function is reserved exclusively for the jury.

Our function is limited to cerifying “only that fair-

minded jurors could reach the verdict rendered.”

Id. (quoting Grogan v. General Maintenance Service

Co., 763 F.2d 444, 447 (D.C. Cir. 1985) ).

Despite strong factual underpinnings and clear prece-

dent to the contrary, the District is, in effect, urging us

to impose a less onerous standard for overturning jury

awards in municipal liability cases under 42 U.S.C.

§ 1983. As the Morgan opinion illustrates with eloquent

detail, jury awards are always “given the utmost of

deference and respect.” Jd. at 1056. There is no author-

ity to veer from this standard in cases involving awards

against municipalities; we decline to adopt the District’s

implied suggestion to do so.

Our colleague’s dissent is primarily based on his own

interpretation of the facts, which is contrary to that of

the jury. In our view, the dissent is seriously flawed by

its failure to apply the “utmost . . . deference” standard

referred to above.

B. Substantive Law

In Monell v. New York City Dept. of Social Services,

436 U.S. 658, 691 (1978), the Supreme Court held that

a municipality is liable under 42 U.S.C. § 1983 only when

execution of its policy or custom causes a plaintiff to

suffer constitutional injury. Since Monell, the Court has

continued to explore the contours of municipal liability

under § 1983. In a case involving a police shooting al-

legedly caused by inadequate training, the Court deter-

mined that “[p]roof of a single incident of unconstitu-

tional activity is not sufficient to impose liability under

Monell, unless proof of the incident includes proof that

it was caused by an existing, unconstitutional municipal

policy, which policy can be attributed to a municipal

policymaker.” Oklahoma City v. Tuttle, 471 US. 808,

823-24 (1985).

The District contends that inadequate training cannot

amount to a custom or policy giving rise to liability

under 42 U.S.C. § 1983 as required by Monell and that

even if it could, the Parkers’ proof does not support a

finding of such a custom or policy. We disagree. Unlike

Tuttle, this case does not involve a single incident that

gives rise to an inference of inadequate training. It

involves a sad series of mishaps linked to a policy of

sorely deficient training, supervision and discipline.

Although the Supreme Court has not yet resolved the

question, the issue of whether liability can arise for

injuries caused by a policy of inadequate training has

come to the attention of the Court. See City of Spring-

field v. Kibbe, 107 S.Ct. 1114 (1987); Tuttle, supra, 471

U.S. at 814 n.2. In Kibbe, for example, the Court orig-

inally granted certiorari to address the question of in-

adequate training and liability under Monell, but dis-

missed such certiorari as improvidently granted upon

determining that the petitioner failed to preserve the

“fairly included” question, see Supreme Court Rule 21.1

(a), of whether more than negligence in training is

required in order to establish such liability.

In Tuttle, the Court rejected a finding of § 1983 muni-

cipal liability for inadequate training based on a single

incident of police misconduct. Whether the facts of a

particular case could contain sufficient examples of mis-

conduct to infer a policy of inadequate training was a

question left unresolved by Tuttle. The Supreme Court

has, however, recently accepted for review the sixth cir-

cuit case of City of Canton v. Harris; the issue of in-

adequate training for law enforcement officers and its

relationship to municipal policy would appear intrinsic

to that case. See City of Canton v. Harris, No. 85-3314,

slip op. (6th Cir. Sept. 5, 1986), cert. granted, 108 S.Ct.

1105 (1988) ‘No. 86-1088).

Until we receive contrary direction from the Court,

we believe that section 1983 liability may be found under

Monell when there is evidence of deliberate indifference

manifest by systemic and grossly inadequate training,

discipline, and supervision. We also believe that the

standard articulated in the instruction proffered to the

jury in this case reflects a proper standard. Limiting

Monell to affirmative policies that violate constitutional

protections is not necessary; the “policy or custom” lan-

guage of Monell warrants no such conclusion. See gen-

erally Note, Municipal Liability for Police Misconduct:

Must Victims Now Prove Intent?, 97 Yale L.J. 448

(1988).

As another panel of this court recognized in Carter v.

District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986),

“Tp]olice misconduct cases such as this one . . . do not

involve express statements of policy. ... To succeed, a

plaintiff must show a course deliberately pursued by the

city. ...” To establish the existence of a Monell pattern

or policy, a plaintiff must present “concentrated, fully

packed, precisely delineated scenarios.” Jd. at 125.

Thus, we uphold the district court’s conclusion that

liability may be imposed on a municipality upon a show-

ing of deliberate indifference exhibited by a pattern of

inadequate training, supervision and discipline of police

officers provided there is a causal connection between

such inadequacies and the risk of harm to others. Accord,

e.g., Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987),

cert. denied, 108 S.Ct. 752 (1988); Fiacco v. City of

Rensselaer, 783 F.2d 319, 326 (2d Cir. 1986) (“deliber-

ate indifference”), cert. denied, 107 S.Ct. 1384 (1987) ;

Voutour v. Vitale, 761 F.2d 812, 820 (1.t Cir. 1985),

cert. denied, 474 U.S. 1100 (1986); Languirand v. Hay-

den, 717 F.2d 220, 227 (Sth Cir. 1983), cert. denied, 467

U.S. 1215 (1984) (so grossly negligent as to constitute

“deliberate indifference”) .

The incidents giving rise to the case at bar present

the requisite “fully packed” scenario. Inadequately

trained officers—in terms of both arrest procedure and

physical aptitude—committed a series of mistakes result-

ing in serious injuries to an innocent man. There were

no consequent sanctions or even reprimands. From these

facts, a clear pattern of inadequate police training and

discipline emerges.

C. Specific Challenges

The District challenges the jury’s determination on two

grounds. First, the District contends that the evidence

was not sufficient to establish inadequacies in training,

discipline or supervision. Second, the District claims that

even if some such deficiencies were established, they were

not the “moving force” behind Mr. Parker’s injuries be-

cause Mr. Parker’s own actions were superseding causes.

Both of the District’s challenges go to factual issues

which were before the jury, and we will not disturb its

findings in this case.

We find that there is ample evidence in the record to

support the jury’s finding of deliberate indifference to

adequate training, supervision and discipline. For in-

stance, Roy C. McLaren, Chief of Police at Miramar,

Florida and co-author of Police Administration, a widely

used police textbook, testified as an expert regarding the

ROP’s training in extrajurisdictional arrest procedures.

In Chief McLaren’s opinion the ROP officers lacked suffi-

cient knowledge in this area.

A: Although the outline for the training consists

of one week of instruction, the amount of instruction

given to the officers, from what I can gather from

looking at the reports and depositions and the re-

sponses made by the officers, the actual instruction

given to them for some of the activities that they

had to confront was inadequate.

Q: And in what way was it inadequate, Chief Mc-

Laren?

A: It failed to cover the circumstances that they

would confront in making an arrest or a detention

in Maryland, in Prince Georges County or in the

State of Maryland, or in any outside jurisdiction out-

——EEEE—E

side of the District, and it did not give instructions

on how to remain in contact with headquarters and

guidance on what to do in the event that that contact

was lost, in the event that they could not maintain

radio contact or telephone contact with their super-

visors.

And it did not clarify the authority that the of-

ficers would have in making an arrest or a detention

on an individual outside of the District of Columbia.

Transcript at 677-678.

Indeed, the officers’ training regarding extrajurisdictional

arrest authority consisted of a single memo by the head

of the ROP, Edward Spurlock. Mr. Spurlock’s memo

failed to disclose that the ROP was authorized to arrest

suspects in Maryland in circumstances like those leading

up to the shooting underlying this case.

We have considered also the record evidence on Officer

Hayes’ general physical training and, specifically, his

disarmament training and believe that it too illustrates

deliberate indifference to adequate training. Charles W.

Bates, a security consultant and former F.B.I. agent,

testified as an expert regarding Officer Hayes’ disarma-

ment training. Agent Bates described, and eventually

demonstrated on the Parkers’ counsel, how Officer Hayes

could have subdued Mr. Parker without use of deadly

force. See Transcript 281-285. According to Agent

Bates, Officer Hayes’ failure physically to subdue Mr.

Parker evidenced a serious deficiency in the officer’s

training program.

It is undisputed that Officer Hayes had no physical

training for four years prior to the Parker incident. In-

deed, he was off duty because of a fractured shoulder

until just two months before the incident that gave rise

to this lawsuit. Given Officer Hayes’ physical condition,

it is not hard to fathom that his most effective method for

subduing the objects of his pursuits would be the use of

10a

a firearm as opposed to the application of physical force.

Officer Hayes simply was not in adequate physical shape.

This condition posed a foreseeable risk of harm to others.

We are persuaded that a fair-minded jury could have

concluded that Officer Hayes’ conduct was the result of

deliberate indifference on the part of the District with

respect to the physical training of its police officers.

As to the inadequacies of its discipline and supervision,

a telling example is the District’s failure to take any

disciplinary action whatsoever with respect to Officer

Hayes. Assistant Police Chief Theodore Carr, the admin-

instrative officer responsible for reviewing cases involv-

ing alleged misconduct, determined that Officer Hayes

mishandled the Parker incident and should have been

“recycled through the firearms training course so that

any—so he can be refreshed in terms of policies and |

procedures.” Transcript at 920. Despite this internal

order, no such action was ever taken.

We turn now to the Dirtrict’s challenge to the jury’s

finding on causation. As the District correctly points out,

a municipal policy must be the “moving force” behind the

alleged constitutional violation before a plaintiff may re-

cover under section 1983. Tuttle, supra, 471 U.S. at 820.

In this circuit, a municipal policy is deemed to be the

moving force of a constitutional injury if the

conduct is a substantial factor in bringing about

harm. ... The defendant may be held liable for

harm that is “foreseeably attributable” to his con-

duct as well as for unforeseeable harm attributable |

to his conduct, unless it appears that the chain of

events is “highly extraordinary in retrospect.”

Morgan, supra, 824 F.2d at 1062-63 (quoting White v.

United States, 780 F.2d 97, 106 (D.C. Cir. 1986)) (cita-

tion omitted).

We can easily conclude that the record supports the

jury’s determination that the District officers’ deficient

lla

training was a substantial factor in bringing about Mr.

Parker’s injuries. The unreasonable use of deadly force

was an immediate cause of such harm. Officer Hayes shot

at Mr. Parker four times. He resorted to use of his gun

because he was unable physically to subdue Mr. Parker

by less drastic means; his physical condition was deficient

because the District was deliberately indifferent to his

physical training program.

Moreover, the record adequately supports the finding -

that the officers’ misunderstanding of their extrajurisdic-

tional authority caused the underlying confused atmos-

phere. Chief McLaren articulated the nature and dangers

associated with such confusion. He testified that “[t]he

confusion may introduce uncertainty in the mind of the

person that they are confronting so that in fact, a person

being confronted in the field by a police officer . . . may

act differently than the person would have had that ele-

ment of confusion not been there.” Transcript at 682.

The record establishes a “substantial factor” relationship

between the officers’ uncertainties and Mr. Parker’s re-

action. Considered together with Officer Hayes’ lack of

physical conditioning and disarmament training, the cir-

cumstances giving rise to Mr. Parker’s injuries persuade

us that the moving force element of Monell is satisfied.

To bolster its moving force argument, the District at-

tempts to analogize this case to Cameron v. City of

Pontiac, 813 F.2d 782 (6th Cir. 1987). In the latter case,

the plaintiff filed a cause of action under 42 U.S.C. § 1983

alleging that a Pontiac police officer’s unreasonable use of

deadly force caused her husband’s death; he was hit by a

truck when he ran across a highway in an attempt to

escape from a city police officer. The court of appeals

for the sixth circuit upheld the trial court’s determina-

tion that the plaintiff’s death was “completely independ-

ent” of the application of deadly force by the defendant’s

employee-police officer.

12a

The District contends that Cameron is similar to the

case at bar. Accordingly, the District urges us to adopt

the Cameron court’s reasoning and reject the existence

of a causal connection between Officer Hayes’ conduct

and Mr. Parker’s injuries. We disagree. The chain of

events leading to Mr. Cameron’s death was “highly ex-

traordinary in retrospect.” Morgan, supra, 813 F.2d at

1063. “[Mr. Cameron] was killed when he, at his own

election, ran onto a high speed freeway. The district

court was correct in concluding that this was unforesee-

able, and that it would be an absurd result indeed to

permit recovery for a felon’s unwise choice of an escape

route.” Cameron, supra, 813 F.2d at 786

Unlike Mr. Cameron, Mr. Parker was not injured when

he was run over by a truck passing coincidentally along

his escape route, he was seriously injured when the plain-

clothed police officer, who did not possess an arrest war-

rant, chased him and shot at him. The connection be-

tween Officer Hayes’ actions and Donald Parker’s injuries

can readily be found to be direct and causal whereas the

connection described in the Cameron case is far more

attenuated and non-causal. We conclude that the jury’s

verdict on this issue is not unreasonable.

D. Jury Instructions

The defendant also contends that reversal is warranted

by the trial court’s decision not to charge the jury regard-

ing use of deadly force according to the language set

forth in Tennessee v. Garner, 471 U.S. 1 (1985). In

that case the Supreme Court held as follows:

Where the officer has probable cause to believe that

the suspect poses a threat of serious physical harm,

either to the officer or to others, it is not unconstitu-

tionally unreasonable to prevent escape by using

deadly force. Thus, if the suspect threatens the of-

ficer with a weapon or there is probable cause to

believe that he has committed a crime involving the

l3a

infliction or threatened infliction of serious physical

harm, deadly force may be used if necessary to pre-

vent escape, and if, where feasible, some warning

has been given.

Id. at 11-12.

Before the jury was instructed, the parties argued

about the contents of the charge to be submitted to the

jury. At that time, the District advocated the use of an

instruction that included language quoted from Tennessee

v. Garner, contending that the District’s official policy is

consistent with this language.

What the District’s official policy consists of is not the

issue here and is not properly the basis of a jury charge.

That Officer Hayes may have believed that he was being

threatened, and that he did, in fact, issue an oral warn-

ing to Mr. Parker to “freeze,” does not dispose of this

aspect of the appeal. The jury was charged with evaluat-

ing the adequacy of District police training, supervision

and discipline with regard to the use of deadly weapons

rather than investigating the official weapons policy of

Officer Hayes and the District. The jury arrived at its

verdict upon a consideration of the actual customs and

policies of the ROP. For this reason, we deem J udge’

Green’s instructions on the use of excessive force, al-

though not comprehensive, to be sufficient to convey the

law of this fact-bound case.

Furthermore, the District failed properly to preserve

its objection on this matter. The District requested the

giving of a Garner instruction and J udge Green denied

this request. In so doing, Judge Green commented that

the District’s request, and its underlying interpretation

of Garner, could constitute interesting issues for appeal.

Judge Green’s comments, however, did not preserve the

issue for appeal. Rule 51, Federal Rules of Civil Pro-

cedure, sets forth the procedure for effectively preserving

challenges to jury instructions: “No party may assign as

al I

14a

error the giving or the failure to give an instruction

unless that party objects thereto before the jury retires

to consider its verdict, stating distinctly the matter ob-

jected to and the grounds of the objection.” Id. (em-

phasis added). The District failed to adhere to Rule 51;

it neglected to state distinctly its specific objections to

Judge Green’s charge before the jury retired to deliberate.

Absent such specified objection, it would be overreaching

for this court to reject the instructions and to upset the

jury’s verdict.

The current posture of this case distinguishes it from

a recent decision in which the Supreme Court did not

require strict compliance with the requirements of Rule

51. In City of St. Louis v. Praprotnik, 108 S.Ct. 915

(1988), the court declined to dismiss a challenge to a

jury verdict imposing municipal liability despite the

petitioner’s failure timely and properly to preserve its

objection to a portion of the underlying jury instruction.

The Court found that dismissal subsequent to its decision

to grant certiorari would “undermine the policy of judicial

efficiency that underlies Rule 51.” Id. at 922. By con-

trast, policies of judicial efficiency and finality of judg-

ments require us, at this relatively early stage of the

appellate review process, to adhere to the clear directives

of Rule 51. In any event, we are convinced that the

instructions presented to the jury did not contain any

flaws which rise to the level necessary to constitute plain

error.

Therefore, we affirm the judgment of the district court.

eee

l5a

WILLIAMS, Circuit Judge, dissenting: A seasoned Dis-

trict of Columbia police officer grappled with a bank rob-

bery suspect who was attempting to hijack an innocent

woman’s car and—as she happened to be in it—kidnap

the woman. The suspect slipped from the policeman’s

grasp and thrust his right hand toward his waistband.

The officer drew his service revolver and ordered the

suspect to halt. The suspect did not heed the warning;

his right hand obscured from view, he turned toward the

policeman. The police officer had only a millisecond in

which to act. Believing that his life and the life of the

innocent woman were in immediate peril, he fired four

times in quick succession. The suspect, who had not been

armed after all, fell to the ground a paraplegic.

With the benefit of hindsight it is now clear that the

officer need not have shot the suspect. But the jury,

informed of the officer’s vantage point at the time of

the shooting, found his actions not ‘unreasonable; it re-

jected the plaintiff-suspect’s assault and battery claim

against the District. However, perhaps out of sympathy

for the victim, the very same jury found the District

liable under 42 U.S.C. § 1983 (1982). § 1983 provides

for a damage action against

{e]very person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State

. . . or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States... .

to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws... .

Parker’s § 1983 theory argued that the District’s inade-

quate training of its police force deprived him of his

Fourth Amendment right not to be seized with unreason-

able force. See Tennessee v. Garner, 471 U.S. 1 (1985).

The District moved for a judgment N.O.V., which the

trial court denied. The majority affirms, with an opinion

nominally accepting the view that municipalities may be

16a

liable under § 1983 for inadequate police training only if

the acting officer’s violation stemmed directly from mu-

nicipal policymakers’ “deliberate indifference” to such

violations. The court’s words are equivalent to those

employed in other circuits. See, ¢.g., Herrera v. Valen-

tine, 653 F.2d 1220, 1224 (8th Cir. 1981) (liability may

be found where city pursues police training so defective

that “the municipality exhibits a deliberate indifference

to the resulting violations of a citizen’s constitutional

rights” (internal quotations omitted)). Its application

of the standard, however, drains the words of any con-

straining force. Accordingly, and fully recognizing that

a lengthy dissent based the probative value of specific

evidence “is seldom worth writing or reading,” Carter v.

Duncan-Huggins, Ltd., 727 F.2d 1225, 1239 (D.C. Cir.

1984) (Scalia, J., dissenting), I must set out my quite

different view of the evidence. The majority also dis-

misses the District’s well-founded objection to the trial

court’s erroneous charge on the constitutional limits on

the use of deadly force. I dissent on that issue as well.

I. BACKGROUND

To support its outcome in this case, the majority paints

a distorted portrait of the police officer whose actions are

at issue, unnecessarily maligning him in the process. See,

e.g., Maj. Op. at 9-10. Although many of the facts sur-

rounding the shooting of Donald Parker are in dispute,

Officer William Hayes’s record and qualifications are not.

A highly-decorated army helicopter pilot and Vietnam

combat veteran, Hayes joined the Washington metro-

politan police force in 1971. Testimony of Hayes, Tr.

1671-90. In his first six years on the force his duties

ranged widely. He worked as an undercover agent in-

filtrating and investigating the Black Panther Party, and

did stints in the homicide, civil disturbance and special

operations divisions. Jd. at 1690-1715. During his time

in special operations he was essentially a member of a

en f

17a

SWAT team, id. at 1708, and received intensive train-

ing in numerous law enforcement skills, including hostage

negotiations, riot control, and disarming armed and dan-

gerous suspects. /d. at 1703-10. His performance on the

street was extraordinary. He participated in over 200

arrests, id. at 1711, earned more than a dozen commenda-

tions, id. at 1722, and on at least three occasions single-

handedly arrested armed felons, id. at 1722-25. With

the exception of the incident central to this case, and

of course in practice at the firing range, Hayes never

found it necessary to discharge his service revolver. Id.

In 1982 Hayes applied for a position in the District’s

new repeat offenders project (“ROP”), a special police

unit created to focus on suspects who were believed to be

committing a disproportionate number of crimes in the

District. In April, he was hand-picked from a field of

about 500 applicants to be one of 88 ROP operatives.

Testimony of Inspector Spurlock, Tr. 1532-35. Before

hitting the streets, each ROP officer completed a specially

designed, intensive one-week training program.

On the morning of November 15, 1982, Hayes and his

partner, Ronnie Lee Motley, were instructed to find out

the whereabouts of Donald Parker. Parker was believed

to have participated with Charles “Dusty Face” Johnson

in an armed robbery of a pharmacy, and there was a

warrant out for his arrest. Before starting the search,

Hayes checked Parker’s file, and learned that Parker

had several arrests and prior convictions for, among other

offenses, armed robbery and carrying a pistol without a

license. Testimony of Hayes, Tr. 1742. Parker was cur-

rently on parole for armed robbery of a bank. Id.

After pursuing what turned out to be a bum lead,

Officer Hayes and Motley were instructed, by radio, to

proceed to the home of a woman who was believed to be

Parker’s estranged common-law wife to see if she could

help them locate Parker. When they arrived at Mrs.

18a

Parker’s residence in Oxon Hill, a Maryland suburb of

the District, the officers attempted to reach their dis-

patcher, but found that they could not; they were ap-

parently in a “dead spot”—a place where a physical

obstruction prevents the transmission of readable radio

signals. Testimony of Motley, Tr. 368-71. The officers

approached the door and knocked; Mrs. Parker appeared

at a window. The officers identified themselves as District

police officers. They then asked whether she would be

willing to answer a few questions. Without replying,

Mrs. Parker withdrew from view. Soon Donald Parker,

whom Hayes recognized from his photograph, appeared at

the window. The officers once again identified themselves

and informed Parker that they were there to investigate

a criminal matter involving him. Parker invited the

officers in.

Once inside, the officers noticed the presence of two

small children. Testimony of Hayes, Tr. 1773-74. Un-

sure of his extrajurisdictional arrest authority and sensi-

tive to the potential for violence or a hostage situation

within the home, Testimony of Hayes, Tr. 1773-74, Hayes

told Parker of the outstanding warrant for his arrest and

attempted to persuade him to voluntarily accompany them

to the station. Parker denied participation in the crime,’

and refused to accompany the officers unless they could

produce a warrant. As the officers were on an investiga-

tive mission and had not expected to find and confront

Parker, they didn’t have the warrant with them. The

officers then suggested alternatives: Parker could call an

attorney to meet him at the station, id. at 1776, or allow

the officers to phone the Prince George’s County police to

effect the arrest, id. at 1773. But neither option was

1 Hayes later testified that Parker, after being informed

that his alleged co-suspect was Dusty Face Johnson, claimed

to be on the outs with Dusty Face, having recently shot his

alleged accomplice five or six times in a dispute over money.

Testimony of Hayes, Tr. 1775.

—————

19a

possible; Parker said his phone was disconnected. /d. at

1776. The police, for their part, refused to leave without

their quarry. Stalemate. Eventually Parker agreed to

accompany the officers so long as they would first permit

him to dress. The officers agreed and allowed him to go

to his bedroom. A couple of minutes later, Hayes noticed

the dining room curtain move. Jd. at 1786. He looked out

the window in time to see Parker leap to the ground from

his bedroom window ledge. Jd. Hayes and Motley ran

for the door, and the chase was on.

Motley pursued Parker on foot through a nearby

wooded area. Hayes returned to the car and drove it to

the spot where Parker and Motley had entered the

woods. Parker, having circled back, emerged from the

woods and ran, hands waving, towards Hayes’s car.

Hayes stopped the car and began to open the door.

Testimony of Hayes, Tr. 1794. Upon recognizing Hayes

as the driver, Parker turned and ran in the opposite

direction. Jd. at 1795. As Hayes stepped out of his car

to give chase, it was rear-ended by a Volvo (driven by

Desrine Rainford), Testimony of Motley, Tr. 345; Testi-

mony of Hayes, Tr. 1795, and knocked into a roadside

ditch. Parker ran to the driver’s side of the Volvo,

opened the door, shoved Rainford aside, and leaped into

the car, half onto Rainford’s lap. Testimony of Rainford,

Tr. 889-90, 893; Testimony of Hayes, Tr. 1796.

When Hayes approached the car, he saw Parker’s foot

near the accelerator and his right hand on the steering

wheel. Fearing a hijack and hostage-taking, he ordered

Parker to halt. Parker refused, saying “F—— you.

I gonna... .” Testimony of Hayes, Tr. 1797. Hayes

grabbed Parker, lifting him from the automobile. Id. at

1800. But Parker somehow managed to yank himself

from Hayes’s grasp and put his right foot back in the

car. Id. at 1801. When Hayes tried again to extract

Parker from the car, he saw Parker’s right hand move

towards his waistband. Jd. at 1805. (Parker may have

errr

20a

so gestured because Ms. Rainford had just poured her

cup of tea on his crotch. Testimony of Rainford, Tr.

894). Believing that Parker was reaching for a gun,

Hayes stepped back and drew his service revolver, yell-

ing “Freeze, Parker, don’t do it.” Jd. at 1803. His right

hand still obscured by his body, Parker began to turn

toward Hayes. Id. at 1804. Hayes was familiar with

Parker’s history of weapons offenses and had reason to

believe that Parker had shot Dusty Face five or six times

over money. Id. at 1805. In the split second in which

he had to make a decision, Hayes thought that Parker

was armed and that Parker posed an immediate threat

to his life and Ms. Rainford’s. Id. at 1806. Hayes dis-

charged his revolver four times in quick succession, hit-

ting Parker twice. Parker, who, as it turned out, had

not been armed, slumped across the automobile door,

staggered a few steps and fell.

One of Hayes’s bullets lodged in Parker’s spine. As a

result of the shooting Parker is now a paraplegic. It is

clear, in retrospect, that neither Rainford’s nor Hayes’s

life was in imminent peril. Parker was needlessly crip-

pled. The question before this court, however, is not

whether Hayes actually needed to shoot Parker. Rather,

the issues are first, whether the jury was properly in-

structed, and second, whether even a properly instructed

jury could reasonably find that the District pursued a

police training program so defective as to manifest “de-

liberate indifference” to the risk of constitutional viola-

tions by its police force, and that such defects caused

Parker’s injury. |

This dissent will first analyse the error in jury in-

structions. It will then review the origins of the “delib-

erate indifference” standard and the reasons for drawing

a rigorous distinction between it and mere negligence.

Finally, it will review the evidence in light of that

standard.

Se Oo

2la

II. ERRORS IN THE JURY INSTRUCTION

To find the District liable under § 1983, the jury had

first to find that Hayes violated Parker’s Fourth Amend-

ment right to be free of unreasonable seizures. Tennes-

see v. Garner, 471 U.S. 1 (1985). Parker introduced

expert testimony that it is unreasonable for an officer to

shoot until he has actuaily seen a weapon. Although this

testimony was properly before the jury in reference to

Parker’s common-law claims, McLaren’s concept of ac-

ceptable police conduct conflicts with and is more strin-

gent than the governing Fourth Amendment standard.

In Garner, the Court held that it is not unreasonable for

a police officer to use deadly force when he “has probable

cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others.” 471

U.S. at 11. Regardless of its relative merits as a matter

of police policy, McLaren’s standard is clearly more de-

manding than the Supreme Court’s test; it makes actual

sight of the weapon essential and thus precludes any

reliance on circumstantial evidence. Thus the jury could

not properly consider McLaren’s standard in its decision

as to whether Hayes violated Parker’s Fourth Amend-

ment rights.

To prevent the jury from adopting McLaren’s standard

as its constitutional benchmark, the District requested the

district court to instruct the jury in terms of Garner’s

definition of constitutionally permissible use of deadly

force. Before the court charged the jury, the District’s

counsel reviewed Judge Green’s proposed instructions and

requested that she add “at least the second paragraph of

[its] proposed instruction No. 4.” Tr. 2196. This para-

graph reads, in part, as follows: “Under the fourth

amendment, it is constitutional for a police officer to use

deadly force in apprehending a suspect, if he has prob-

able cause, that is a reasonable belief that the suspect

poses a threat of serious physical harm, either to the

officer or to others.” Judge Green noted the District’s

22a

objection to the existing instructions, but refused to so

alter them. Tr. 2196-97. In view of the drastic gap

between the law under Garner and McLaren’s testimony,

as well as the confusion manifested by the jury’s incon-

sistent verdicts (see pp. 27-28 & n.3 below), the error

was far from harmless.

The majority dismisses the error with the claim that

the District “failed to adhere to Rule 51... [when] it

neglected to state distinctly its specific objections to

Judge Green’s char. before the jury retired to deliber-

ate.” Maj. Op. at 14. But in fact Judge Green ex-

plicitly stated, just before the jury retired, that the

parties should state only new objections to the instruc-

tions as given, as she considered the objections made in

the previous day’s colloquy already preserved for the

record. Tr. 2230-31. I cannot grasp why the court now

faults the District for having refrained from a repetition

that would have defied the judge’s instructions and likely

have been contemptuous. To do so is not to preserve

orderly trial procedures but to invite their disruption.

As the jury may well have found the predicate consti-

tutional violation using an invalid standard, its § 1983

verdict should not stand.

The instructions included a second critical error, this

one on the standard applicable to the District itself:

The burden is on the plaintiff, Don Parker, to es-

tablish by a preponderance of the evidence that the

District of Columbia failed adequately to train, su-

pervise and discipline Officers Hayes and Motley and

that this failure constitutes gross reckless and gross

indifference to the civil rights of Mr. Parker in that

such inadequate training, supervision and discipline

would involve a risk of harm to others.

Tr. 2222 (emphasis added). The italicized portion of this

instruction implies that a finding of gross recklessness

or gross indifference is called for once the jury deter-

23a

mines that the training was “inadequate” in any way

that would “involve a risk to others.” Not even an “un-

reasonable risk! This suggested a standard even lower

than one of common-law negligence, essentially one of

strict liability. Such low-level “inadequacies” plainly do

not reflect the “deliberate indifference” to constitutional

violations that all members of the panel agree is the

correct standard (explained in detail in part III).

Had the District properly objected to this conception

of § 1983 liability and then raised the matter before us,

it would require reversal. Had it merely raised the mat-

ter for the first time on appeal, I would find plain error.

Cf. Anderson v. Group Hospitalization, Inc., 820 F.2d

465, 469 n.1 (D.C. Cir. 1987) (acknowledging uncer-

tainty as to whether this circuit recognizes the “plain

error” doctrine in civil cases). In fact it did neither.

Although Carducci v. Regan, 714 F.2d 171, 177 (D.C.

Cir. 1983), wisely counsels that we should normally not

address unbriefed issues, it does so on the premise that

we would otherwise be deprived “of that assistance of

counsel which the system assumes.” Jd. As we need no

such assistance on the point, I think it an independent

ground of reversal.

In any event, the Garner error calls for reversal of the

judgment and remand for a new trial.

III. THE “DELIBERATE INDIFFERENCE” STANDARD

As the majority and I agree that a municipality should

be liable under § 1983 for unconstitutional acts resulting

from inadequate police training only if its training poli-

cies refiect “deliberate indifference” to those violations,

it may seem pointless to argue the legal standard. But

it is facts that give words their meaning. In China after

Mao, it is said that many parroted the slogan attributing

the country’s ills to the “Gang of Four,” but simulta-

neously held up a hand with five fingers outstretched——

24a

an extra one for the Great Helmsman himself. Here the

majority talks deliberate indifference, but I can fathom

their belief that the facts satisfy that standard only as

a product of their reluctance to acknowledge the policies

restricting municipal liability under § 1983. I write to

underscore the force of those policies and the reasoning

behind the requirement of deliberate indifference.

In Monell v. New York City Dep’t of Social Services,

436 U.S. 658 (1978), the Supreme Court held that cities

and other local governing bodies are “persons” subject to

liability under § 1983, overruling its decision to the con-

trary in Monroe v. Pape, 365 U.S. 167 (1961). But it

explicitly rejected the idea of vicarious municipal liabil-

ity. Id. at 690-95. Rather, the Court accepted liability

only where “execution of a government’s policy or cus-

tom ... inflicts the injury,” id. at 694, or (in a formu-

lation seemingly intended as identical) where “official

policy” has been “the moving force of the constitutional

violation,” id.; see also City of Oklahoma City v. Tuttle,

471 U.S. 808, 824 n.8 (1985) (reiterating the “moving

force” metaphor and condemning “loose language in the

charge leaving it to the jury to determine whether the

alleged inadequate training would likely lead to ‘police

misconduct’”’); Polk County v. Dodson, 454 U.S. 312,

326 (1981).

For reasons that will soon be apparent, § 1983 liability

for egregiously defective police training is compatible

with Monell’s requirement of a municipal policy; the

other circuits facing the issue since Moneil have so found.

The majority’s statement of the law appears to coincide

with their views. Under this consensus, a municipality’s

inadequate training of police can give rise to liability

under § 1983 if (1) the training is so grossly negligent

or reckless as to reflect deliberate indifference to the

constitutional violations that will inevitably result, and

(2) the inadequate training is the moving force behind

a violation of a plaintiff’s constitutional rights. See cases

25a

cited at Maj. Op. at 7; see also Hays v. Jefferson

County, 668 F.2d 869, 874 (6th Cir.) (“so reckless or

grossly negligent that future police misconduct is almost

inevitable . . ., or would properly be characterized as

substantially certain to result”) (citations omitted),

cert. denied, 459 U.S. 833 (1982); Herrera v. Valentine,

653 F.2d 1220, 1224 (8th Cir. 1981) (deliberate indif-

ference or tacit authorization); McLaughlin v. City of

LaGrange, 662 F.2d 1385, 1388 (11th Cir. 1981) (simple

negligence not sufficient), cert. denied, 456 U.S. 979

(1982).

Liability for deliberate indifference serves as a back-

stop to liability for explicit municipal authorization of

§ 1983 violations. Without it, municipal policymakers

could wink at rampant police misconduct but keep the

municipal treasury safe. Of course where plaintiffs could

prove the wink, the resulting violations would be charge-

able to the city as explicit policy. But proof of a wink

may fail for no fault of the plaintiff, and on a strong

enough record the fact-finder should be able to infer

tacit complicity.

Grounding liability for deliberate indifference in a

backstop function finds support in Monell’s discussion of

the inclusion in § 1983 of “customs” and “usages” among

the state prescriptions under “color” of which the for-

bidden deprivation may occur. The Court quoted Justice

Harlan’s point in Adickes v. S. H. Kress & Co., 398 U.S.

144, 167-68 (1970), that custom and usage were included

“because of the persistent and widespread discriminatory

practices of state officials. .. . Although not authorized

by written law, such practices of state officials could well

be so permanent and well settled as to constitute a ‘cus-

tom or usage’ with the force of law.” See Monell, 436

U.S. at 691. Just as including state involvement through

discriminatory practice prevents evasion through, as it

were, government body language, so liability for deliber-

ate indifference prevents evasion through a calculated

26a

municipal failure to cure training defects with a hi

and obvious probability of generating excessive constit

tional violations.

The backstop role surely requires no more expansi

a standard than that of deliberate indifference. The que

tion remains whether a reasonable construction of § 19%

and Monell suggests more. Of course Congress’s ma:

target in adopting the predecessor of § 1983 was tl

Klansmen’s brutalization of the freedmen. Although Co:

gress obviously provided a remedy against broader evil

cf. Monell, 436 U.S. at 683, it would be startling to fir

it evolve into a basis for federalizing (and judicializing

the complex political issue of how to reduce the impe)

fections of municipal government.

The Court’s language in Monell appears to refer onl

to policy decisions that can be linked by intention to th

resulting constitutional violations. The Court held, pe

Justice Brennan, that “[l]ocal governing bodies . . . ca:

be sued directly under § 1983 ... where... the actio)

that is alleged to be unconstitutional imple: ents or exe

cutes” a governmental policy. 436 U.S. at 690 (emphasi:

added). The words “implement” and “execute” surel1

connote a direct and intentional link between the polic)

and the unconstitutional outcome. Police officers’ consti-

tutional infringements do not “implement” or “execute’

a sloppy training policy. Cf. Pembaur v. City of Cincin-

nati, 475 U.S. 469, 482 n.11 (1986) (noting that both

the plurality and concurrence in Tuttle “found plaintiff’s

submission inadequate because she failed to establish that

the unconstitutional act was taken pursuant to a muni-

cipal policy” (emphasis in original) ).

Certainly the subsequent opinions of the justices pro-

vide little support for any more expansive liability. The

Court came closest to addressing the issue explicitly in

City of Springfield v. Kibbe, 107 S. Ct. 1114 (1987), but

a five-justice majority (Justices Brennan, Marshall,

27a

Blackmun, Stevens and Scalia) dismissed the writ as

improvidently granted; the defendant city’s petition for

certiorari had not objected to the jury instruction per-

mitting liability on the basis of gross negligence. Those

who dissented evidently regarded that instruction as too

lax. Writing for herself and Chief Justice Rehnquist

and Justices White and Powell, Justice O’Connor took

the position that “ ‘inadequacy’ of police training may

serve as the basis for § 1983 liability only where the

failure to train amounts to a reckless disregard for or

deliberate indifference to the rights of persons within

the city’s domain.” 107 S. Ct. at 1121 (O’Connor, J.,

dissenting) .

The Kibbe dissenters identified an inherent hazard in

imposing § 1983 liability for municipal policies that do

not compel a constitutional violation. Because of the

confusion arising from intervening causes, even a nomi-

nally stringent causation requirement could not pre-

vent damage judgments based on illegitimate jury con-

jecture:

[A]t the time of the officers’ alleged misconduct, any

number of other factors [may have also been] in

operation that were equally likely to contribute or

play a predominant part in bringing about the con-

stitutional injury: the disposition of the individual

officers, the extent of their experience with similar

incidents, . . . and so forth. To conclude, in a par-

ticular instance, that omissions in a municipal train-

ing program constituted the ‘moving force’ in bring-

ing about the officer’s unconstitutional conduct, not-

withstanding the large number of intervening causes

also at work up to the time of the constitutional

harm, appears to be largely a matter of speculation

and conjecture.

107 S. Ct. 1114, 1120-21 (1987).

But the expressions of the justices composing the

Kibbe majority hardly suggest a readiness to find lia-

bility much more readily. As we have noted already,

28a

Justice Brennan’s opinion for the Court in Monell itself

found liability where an unconstitutional act “imple-

ments or executes” municipal policy, language strongly

suggesting deliberate intent. He also noted that some

congressional supporters of § 1983 had made clear that

they intended the Act to reach situations where “officers

of the State were deliberately indifferent to the rights

of black citizens.” 486 U.S. at 685-86 n.45 (emphasis

added). In City of Oklahoma City v. Tuttle, 471 U.S.

808 (1985), where the majority overturned a judgment

against a municipality because the charge allowed the

jury to infer “ ‘gross negligence’ or ‘deliberate indiffer-

ence’”’ from a non-policymaker’s single excessive use of

force, id. at 821, he concurred, and, writing for him-

self and Justices Marshall and Blackmun,’ observed that

the plaintiff “bore the burden . . . of proving” that his

injuries resulted from “ ‘conscious choices’ . . . made by

the city concerning police training and supervision,” id.

at 829-30 n.4 (internal citation omitted). In Tuttle,

moreover, Justice Brennan explicitly rejected mere “but

for” causality, invoking at least the limiting principles

of tort law. Tuttle, 471 U.S. at 833 n.8. Finally, in

Part II-B of his opinion in Pembaur v. City of Cin-

cinnati, 475 U.S. 469 (1986), concurred in by Justices

White, Marshall and Blackmun, he wrote 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.

Id. at 483-84. See also George D. Brown, Municipal Li-

ability Under Section 1983 and the Ambiguities of Bur-

2 Justice Stevens has consistently rejected Monell’s refusal

to allow liability under respondeat superior. See, e.g., City of

Oklahoma City v. Tuttle, 471 U.S. at 834-44 (Stevens, J.,

dissenting).

29a

ger Court Federalism: A Comment on City of Oklahoma

City v. Tuttle and Pembaur v. City of Cincinnati—the

“Official Policy” Cases, 27 B.C.L. Rev. 883, 901 (1986).

In all candor, Justice Brennan’s requirement of “con-

scious choice” is susceptible of a very expansive reading.

He refers to specific municipal choices on police train-

ing, including not only issues going to the content of

police courses (“when to shoot to kill”), but also such

neutral issues as “how much time and emphasis [should]

be placed on training in such matters as how to approach

felony-in-progress situations.”” Tuttle, 471 U.S. at 829-

30 n.4 (Brennan, J., concurring). But this list appears

simply to have been identified by plaintiff. Jd. at 829

& n.4. Justice Brennan cannot be described as com-

mitted to the view that neutral municipal police train-

ing decisions, short of unleashing officers manifestly in-

capable of observing constitutional norms, would trigger

liability.

Court decisions in closely related areas also warn

strongly against imposition of § 1983 liability for mis-

judgments that at most increase the risk of constitu-

tional violations. In Rizzo v. Goode, 423 U.S. 362 (1976),

the district court had issued an injunction against mu-

nicipal officers merely upon a showing of an “unaccept-

ably high” number of unconstitutional acts by their sub-

ordinates, id. at 373, arguably caused by a departmental

“tendency to discourage the filing of civilian complaints

and to minimize the consequences of police misconduct,”

id. at 368-69. The Court refused to countenance this

judicial intervention. It contrasted these facts with those

of the decision principally relied on by the district court,

Hague v. CIO, 307 U.S. 496 (1939), in which “liability

and injunctive relief were grounded [on] the adoption

and enforcement of deliberate policies by the defendants

there . . . of excluding and removing the plaintiff’s labor

organizers and forbidding peaceful communication of

their views to the citizens of Jersey City.” Jd. at 374.

30a

In Rizzo, by contrast, there was no showing that the

“behavior of the Philadelphia police was different in kind

or degree from that which exists elsewhere.” Jd. at 375.

The Court found that “[nJothing in Hague... , or any

other case from this Court, supports such an open-ended

construction of § 1983.” Id. at 373-74. Although Rizzo

rested in part on a concern for the ill effects of injunctive

intervention in the management of municipal police, it is

hard to see that intervention through the imposition of

large damage judgments would be materially less intru-

sive.

In the definition of Due Process, too, the Court has

recently rejected the use of federal constitutional norms

to supplant state policy on governmental negligence. In

Daniels v. Williams, 474 U.S. 327 (1986), it held that

prison custodians’ “lack of due care,” far from being

an “abuse of power” cognizable under the Due Process

Clause of the Fourteenth Amendment, “suggests no more

than a failure to measure up to the conduct of a reason-

able person.” Id. at 332. See also Davidson v. Cannon,

474 U.S. 344, 347-48 (1986) (refusing to find due proc-

ess clause liability under similar facts, even though state

law immunities barred plaintiff from any state remedy;

“lack of care simply does not approach the sort of abusive

government conduct that the Due Process Clause was

designed to prevent”). The context is of course distin-

guishable; the Court addressed individual liability for

violations of the Constitution’s most open-ended provision

and expressly left open the possibility that mere negli-

gence might in some cases subject individuals to § 1983

liability under other provisions. Daniels v. Williams, 474

- U.S. at 334. Indeed, for a claim such as Parker’s, that

the use of unreasonable force made an arrest illegal

under the Fourth Amendment, individual liability turns

on “an objective standard of reasonableness . . . deter-

mined by balancing the infringement of the individual’s

interest caused by the police action against the govern-

mental interest served.” Martin v. Malhoyt, 830 F.2d

OEE

3la

237, 261 (D.C. Cir. 1987) (§ 1983 action in which court

applies standard set forth in Tennessee v. Garner, 471

U.S. 1, 7-8 (1985)). But nothing in Monell suggests

any reason to suppose the Court intended the sort of

close federal judicial control of municipal policy implicit

in a rule of liability for a city’s negligence in failing

to prevent its officers’ unconstitutional acts (whatever

state-of-mind may be required for their liability).

As the majority notes, a Supreme Court analysis of

municipal liability for inadequate police training under

§ 1983 appears imminent. See City of Canton v. Harris,

No. 85-3314, slip op. (6th Cir. Sept. 5, 1986), cert.

granted, 56 U.S.L.W. 3601 (U.S. March 7, 1988) (No.

86-1088). The majority and I agree on “deliberate in-

difference” as the operative words of the likely formula.

But one’s perception of the force of a definition may de-

pend on his sense both of the difficulty of defining a

causal link and of the need for a sharp line between

municipal negligence and actions so “abusive” as to in-

voke the majesty of federal constitutional intervention.

Under Monell itself, illuminated by such decisions as

Rizzo and Daniels, I think liability can be found only on

a showing that municipal policymakers would have

thought to themselves: “Yes, we recognize that our po-

lice training decisions are bound to generate an excep-

tionally high number of constitutional violations, but that’s

just tough.” Parker made no such showing here. If the

courts are not to federalize much of municipal govern-

ment policy the courts of appeal must seriously police the

border between garden-variety snafus and truly deliber-

ate indifference to low-echelon constitutional violations.

IV. APPLICATION OF THE STANDARD TO THE EVIDENCE

In reviewing the District’s claims on appeal, we must

of course accord the jury great deference, and uphold its

verdict unless

i eee

32a

‘there can be but one reasonable conclusion,’ drawn

from the evidence viewed ‘in the light most favorable

to the plaintiff[] .. ., giving [him] the advantage of

every fair and reasonable inference that the evi-

dence may justify.’

Metrocare v. WMATA, 679 F.2d 922, 924-25 (D.C. Cir.

1982), quoting Foster v. Maryland State Savings and

Loan Ass’n, 590 F.2d 928, 930 (D.C. Cir. 1978), cert.

denied, 439 U.S. 1071 (1979). Our review proceeds, how-

ver, without deference to the trial court’s denial of the

motion for judgment N.O.V. McNeal v. Hi-Lo Powered

Scaffolding, Inc., 836 F.2d 637, 641 (D.C. Cir. 1988).

Upholding the verdict below requires the court to de-

cide that a reasonable jury could have concluded that

the District’s training policies manifested deliberate in-

difference to any enhanced likelihood of causing constitu-

tional violations and that the alleged deficiencies were the

moving force behind the alleged violation. Because of

errors in the district court’s instructions it is not at all

evident that this jury did so find. See part II above. I

believe that even with proper instructions, a reasonable

jury could not so find. I would reverse.

One further preliminary comment: Many circuits re-

fuse to uphold a finding of deliberate indifference unless

the plaintiff can demonstrate a pattern of violations, pre-

dating the instant violation, that should have put the

municipality on notice that its training policies were dan-

gerously inadequate. See, e.g., Spell v. McDaniel, 824

F.2d 1380, 1387 (4th Cir. 1987), cert. denied, 108 S. Ct.

752 (1988); Languirand v. Hayden, 717 F.2d 220, 227- f

28 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984);

Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.

1981) ; McLaughlin v. City of LaGrange, 662 F.2d 1385,

1388 (11th Cir. 1981), cert. denied, 456 U.S. 979 (1982) ;

cf. Rizzo v. Goode, 423 U.S. 362, 373-77) (in overturning

injunction against city officials based on alleged violations

by their subordinates, Court relies on absence of any

33a

pattern of violations). But see Grandstaff v. City of

Borger, 767 F.2d 161, 170-71 (5th Cir. 1985) (proof of

multiple incidents of misconduct on night of the incident

may indicate that the policemen knew at the time that

their actions would “meet with the approval of city

policymakers”), cert. denied, 107 S. Ct. 1369 (1987);

Kibbe v. City of Springfield, 777 F.2d 801, 807-08 (1st

Cir. 1985) (similar), cert. granted, 475 U.S. 1064

(1986), cert. dismissed, 107 S. Ct. 1114 (1987). I will

assume, arguendo, the laxer view—that on some imagina-

ble facts one might find deliberate indifference without

a pattern of prior similar conduct. .

In order to prevail, Parker had to establish a defect in

the District’s training program, the requisite state of

mind in municipal policymakers with respect to that

defect, and a strong causal link between that defect

and his constitutional injury. Each alleged training in-

adequacy must stand on its own. We cannot find the

requisite links by combining distinct liability theories in

a vague § 1983 goulash. To do so would render the con-

cept of deliberate indifference meaningless and trivialize

the causation requirement.

Parker argued five theories to support his § 1983

claim. I address them seriatim.

1. Extrajurisdictional training. Parker attempted to

show that the District inadequately trained its officers as

to proper extrajurisdictional arrest procedures and as to

their extrajurisdictional arrest authority. A critical as-

pect of their alleged inadequacy, as the majority opinion’s

summary makes clear, see Maj. Op. at 8-9, was that it

understated the officers’ extraterritorial authority. Had

the officers been properly trained as to their authority to

make extraterritorial arrests, Parker argues, they would

have simply and promptly arrested him. Appellee’s Brief

at 35-36. (District police officers with probable cause to

believe someone has created a felony may make a citizen’s

34a

arrest in Maryland. See Stevenson v. State, 413 A.2d

1340, 1346 (Md. 1980).) Had they done so, he would not

have been made nervous by the drawn-out stalemate,

would not have attempted to flee, would not have at-

tempted to hijack a stranger’s car, and thus would not

have been shot.

Of-course it is quite true that the officers’ ignorance

of their full authority played a role in creating the

awkward standoff. But it seems unprecedented to sug-

gest that the issuance of instructions understating officers’

authority could manifest deliberate indifference to the

constitutional violations that might very indirectly result.

On this remarkable theory it is as risky for a munici-

pality to pursue a Milquetoast’s strategy as a Rambo’s.

Parker of course introduced no evidence of a pattern of

similar incidents or of any other circumstances that

would have alerted District policymakers to the risk that

such a knowledge gap carried a special risk of causing

constitutional violations. I cannot perceive a basis for

inferring the requisite deliberate indifference.

Further, Parker utterly failed to show the necessary

causal link. At best, he has demonstrated “but for”

causation. This is plainly not enough. See Tuttle, 471

U.S. at 833 n.9 (Brennan, J., concurring). Parker’s

theory minimizes the significance of intervening events

and ignores the autonomy of the various players. It de-

pends on the following causal chain: The District’s inade-

quate training program left the officers confused as to

their extrajurisdictional arrest authority, which created a

tense atmosphere in the Parker home, which made Parker

nervous and led him to attempt escape through his

bedroom window, which resulted in a chase through the

neighboring woods, which led to a confrontation between

Parker and Hayes on the street which prompted Parker

to attempt to hijack Desrine Rainford’s car, which led

Rainford to dump her tea on his lap, which caused

Parker to reach his hand towards his pant while he was

35a

struggling with Hayes, which gave Hayes the impression

that Parker was reaching for a gun, which caused Hayes

to shoot him. This out-Palsgrafs Palsgraf. On such a

theory, the want of a nail was “the moving force” behind

the kingdom’s loss.

Cameron v. City of Pontiac, 813 F.2d 782 (6th Cir.

1987), properly rejected a similarly tenuous causal link.

There policemen chased and shot at a fleeing suspect who,

in an effort to escape, jumped a fence and sprinted onto

a highway, where he was struck and killed by a passing

truck. The court found that the policemen’s use of deadly

force “was not, as a matter of law, the proximate cause

of [Cameron’s] death.” Jd. at 786. Here, the District’s

training decisions were far less proximately connected to

the ultimate shooting. (The majority seeks to distinguish

Cameron on the ground that here Hayes’s shooting was

clearly the proximate cause of Parker’s injury. Maj. Op.

at 12. But that is not in question. Parker’s problem

was to show that flaws in the District’s extrajurisdictional

training policies were the moving force behind the snoot-

ing.

2. Adequate warning. Parker attempted to demon-

strate that Hayes’s warning to him—‘“Freeze, Parker,

don’t do it”—-was dangerously imprecise. Even assuming

_it was negligent of Hayes not to use an affirmative com-

mand, like “Put your hands over your head,” Parker in-

troduced no evidence as to the District’s policy on how

officers should warn potentially armed suspects. The jury

was not free to infer a municipal policy from a single

episode. City of Oklahoma City v. Tuttle, 471 U.S. 808

(1985). Nor do I believe one can find deliberate in-

difference to constitutional rights in the District’s going

the “wrong” way—if it is wrong—on such a subtle point

of police procedure.

8. Fitness training. Parker argued at trial that the

District was grossly reckless in not establishing minimum

physical fitness standards for officers in its ROP unit.

36a

He claimed that had the District paid heed to fitness

it would not have selected Hayes to be on the squad, and

that if Hayes had been in reasonable shape he would

have been able to handle the arrest without using his

revolver.

Whatever the District’s actual policies on the fitness of

ROP officers, Hayes appears to have been in fine shape.

To be sure, Parker did present some testimony as to

Hayes’s fitness during various time periods considerably

prior to November 1982. He established (1) that in 1977

Hayes was unable to continue his SWAT team duties

because he had developed a heart condition, pericarditis,

(2) that Hayes had received a few citations for being

overweight sometime between 1977 and 1982, and (3)

that Hayes had suffered a hairline fracture of his right

shoulder in July 1982.

While these may be interesting historical facts, none

suggests any defect in Hayes’s physical condition at the

time of the shooting. By 1979 Hayes had recovered from

his pericarditis well enough to resume extracurricular

physical activities. He jogged a couple of miles each day,

worked-out in his free time, and participated in martial

arts courses and casual athletics. Testimony of Hayes,

Tr. at 239. When he applied to join the ROP in 1982,

he felt entirely fit for active duty. Jd. at 1730, 1733.

Hayes did indeed suffer a hairline fracture in July

1982 when another vehicle struck his patrol car. Jd. at

1734-35. On account of that injury his superiors tempo-

rarily relieved him of active duty. Id. at 257. By Septem-

ber, however, two months before the present episode, he

had recovered fully and was certified as fit by the Board

of Surgeons at the Police and Fire Clinic. Testimony of

Inspector Spurlock, Tr. 1559; Testimony of Hayes, Tr.

1736. He resumed his duties on the ROP. There, because

of his size and strength, he was often designated the

“ram person ;” 1.¢., the officer who, when necessary, knocks

eh ety A ta Me eR aly ORL 4 ANI ROP Nn eile a at ts Ai ms eI

ameter ae

37a

down barricaded doors to facilitate police entry. Testi-

mony of Inspector Spurlock, Tr. 1559. There is simply

no basis for the canard that Hayes was “not in adequate

physical shape.” Cf. Maj. Op. at 10.

Further, the record contains no support for any finding

that the District was deliberately indifferent to the danger

posed by its failure to set minimum fitness standards.

The only evidence bearing on the District’s frame of mind

was the testimony of Assistant U.S. Attorney Bowman,

one of the founders of the ROP, who admitted that physi-

cal fitness probably ought to have been taken into account

in officer selection. He attributed the oversight to the

planners’ assumption that most of the officers’ surveil-

lance would be by car. Tr. at 1334. This falls far short

of deliberate indifference. :

Finally, Parker presented no evidence whatsoever to

support the thesis that any possible gap between Hayes’s

physique and Charles Atlas’s was the moving force behind

Hayes’s failure to subdue him by hand. Acceptance of

liability on this theory invites reliance on precisely the

sort of rampant speculation and conjecture against which

Justice O’Connor warned. See p. 13 above.

4. Disarmanent training. Parker asserts that if Hayes

had received adequate disarmanent training he would

have been able to subdue Parker physically, and would

not have shot him. Parker organizes his support for this

theory carefully, but the resulting structure is rickety

indeed. He points to (1) expert testimony that Hayes

should have been able to use conventional law-enforcement

techniques to remove Parker from the car and render him

harmless. Testimony of Bates, Tr. 282; (2) Hayes’s

deposition statement that his formal training in “hand-

to-hand” combat—consisting of two 30-minute sessions

in 1972—had been “next to nothing,” Tr. 233; and (3)

an expert’s opinion that if the District had provided its

police officers with only one hour of physical disarmament

38a

training, that would have been inadequate. Testimony of

McLaren, Tr. 693. All this is not remotely up to the task.

At no time did Parker’s experts in fact review or

analyse the District’s training policy, much less assess

it as inadequate. The main expert, Roy McLaren, tes-

tified only that if Hayes had received only two 30-minute

sessions in disarming tactics, that would have been in-

adequate. Tr. 693.

The hypothesis was palpably false. It was founded

solely on Hayes’s reference to 60 minutes of police train-

ing in “hand-to-hand combat.” But these 60 minutes

were incontestably a small part of Hayes’s overall train-

ing—the part consisting of formal training in how to

attempt to physically subdue an attacker who has drawn

a knife or gun. Testimony of Hayes, Tr. 234-35. The

District presented undisputed evidence of continuous

training: reviews at roll call of specific episodes and

on-the-job disarmament training. Testimony of Hayes,

Tr. 235-36; Testimony of Inspector Spurlock, Tr. 1516,

1529-30; see also Testimony of Murphy, Tr. 1942-43

(training provided by the District exceeds that furnished

by most other jurisdictions) .

In fact the District did not encourage policemen to use

bare hands to physically disarm gun- or knife-wielding

assailants. In view of the high risks of such activity,

it treated martial arts training as supplemental, as pro-

viding a resource to be tried only as a last resort if for

some reason an officer could not use the threat implicit

in his service revolver. Testimony of Hayes. Tr. 234-35.

(Had the District emphasized such training, Parker

would likely be arguing that it led to the fatal shooting:

as a result of such emphasis, Hayes used grappling tech-

niques instead of immediately drawing his revolver and

telling Parker to put his hands up.)

Parker’s experts evaluated only an incomplete portion

of the District’s training policy; they never came to grips

39a

with the policy issue of how much to stress hand-to-hand

combat; and they provided no basis at all for a judgment

that the District’s downplaying of such techniques could

be reasonably attributed to deliberate indifference to con-

stitutional violations.

5. Use of Deadly Force.

The District’s policy was to instruct its officers to use

deadly force only as a last resort: to save their lives or

the lives of innocent persons, or to prevent the escape of

a violent felon. Testimony of Inspector Spurlock, Tr.

1513-14; Testimony of Hayes, Tr. 1696-97. Hayes, be-

lieving that both his life and Desrine Rainford’s were

in danger, id. at 1806, fired before seeing an actual

weapon.

Parker contends that if Hayes had been properly in-

structed he would have held his fire until he had actually

seen a weapon, and his experts so testified. But it is the

Supreme Court, not Parker’s expert testimony, that de-

fines when a police officer may constitutionally shoot.

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

held that “[wlhere [an] officer has probable cause to

believe that the suspect poses a threat of serious physical

harm, either to the officer or to others, it is not constitu-

tionally unreasonable to prevent escape by using deadly

force.” It explicitly approved of police department poli-

cies that “allowed the firing of a weapon only when a

felon presented a threat of death or serious bodily harm.”

Id. at 18-19. As the District’s policy complies with, and

is practically identical to, this standard, the jury was

not free to decide that the experts’ suggested policy was

more to its taste.

Apparently conceding that Parker’s attack on the dis-

trict’s “official policy” may be blocked by Garner, the

majority hints that the jury could have found that the

District’s actual policy was less restrictive than the ap-

40a

parent official one. Maj. Op. at 13. But the facts do

not support the hint. The District presented evidence to

substantiate its claim that its officers were indoctrinated

in its official policy. Testimony of Inspector Spurlock,

Tr. 1508-13. Hayes testified that he knew and under-

stood that policy. Tr. 1696-97. Parker introduced no

evidence supporting the existence of an alternative “ac-

tual” policy.

Of course, the jury could have found that when Hayes

fired he could not have reasonably believed that he or

Ms. Rainford was in danger. Perhaps it leapt from this

to a beliex that the District trained its policemen to shoot

prematurely. But City of Oklahoma City v. Tuttle, 471

U.S. 808, 821 (1985), plainly forbids the fact-finder to

infer a municipal policy from a single action of a non-

policy-making employee.

There is a second possibility. Theodore Carr, Assist-

ant Police Chief of the District of Columbia, conducted

an official review of Hayes’s conduct in the shooting. He

determined that Hayes’s decision to fire was not justified

by the actual danger posed, and he recommended that

Hayes be fined and recycled through the firearms train-

ing course. Tr. 917-20; Plaintiff’s Exhibit 40, 2 Joint

Appendix (J.A.) E-4—E-8. Although Chief of Police

Turner initially agreed with this assessment of the facts,

he later set aside the fine, Tr. 923-24, and Hayes was

never put through a firearms retraining program as a

consequence of the shooting. Jd. at 1618. The majority

treats the nullification of the fine and failure to retrain

as “a telling example” of the inadequacies of the Dis-

trict’s discipline and supervision, Maj. Op. at 10, pos-

sibly viewing it as evidencing a de facto policy in conflict

with the official one.

With all respect, the episode tells very little. The

department’s reprieve appears to have turned on an anal-

ysis of Hayes’s statements as to what he perceived. See

Hineniercenenaneie nanan eaialiiaiad iain

4la

Plaintiff’s Exhibit 40, 2 J.A. E-4—E-8. Carr and Tur-

ner, as reasonable students of the record, could have

reached different appraisals.

Of course one can imagine police conduct so egregious

that superiors’ complaisance could at least be powerful

evidence of a preexisting policy. See Kibbe v. City of

Springfield, 777 F.2d 801, 806 (1st Cir. 1985), cert.

granted, 475 U.S. 1064 (1986), cert. dismissed, 107 S.

Ct. 1114 (1987) ; Grandstaff v. City of Borger, 767 F.2d

161, 171 (5th Cir. 1985), cert. denied, 107 S. Ct. 1369

(1987). But this is plainly no such case. It is true that

to find a violation of Parker’s Fourth Amendment rights,

the jury had to conclude that Parker was the victim of

an unreasonable seizure. But the jury’s exoneration of

the District on the assault and battery claim entailed the

opposite finding—that Hayes had not used unreasonable

force under the circumstances. Jury Instructions, Tr.

2220. In response to the district’s motion for J.N.O.V.,

the district court sought to reconcile these findings by

suggesting that the jury might have found the shooting

unreasonable in an absolute sense, but Hayes’s actions

reasonable given his lack of adequate training. Parker

v. Hayes, C.A. No. 83-3382 (D.D.C. Jan. 29, 1987)

(Mem. Op.) at 6-7 n.5. Whatever credence one may give

this imaginative reconstruction,® it seems plain that the

8 The court’s refusal to grant a judgment N.O.V. based on

the inconsistency of the jury’s verdicts is not before us as an

independent claim of error, but it seems plain that the dis-

trict court’s attempted reconcilation presupposes far more

refined notions of tort law than exist. While a police officer

may be judged as “a reasonable police officer” rather than as

a “reasonable person,” there is simply no precedent for use of

an ultra-subjective standard considering “a reasonable police

officer with the specific amount of training this officer re-

ceived.” In any event, it seems fanciful to believe that the

jury would, without aid from court or counsel, invent this

distinction between § 1983 and common law liability stand-

ards. In fact, so far as reasonableness was concerned, the

jury instructions for assault and battery were almost identical

42a

jury did not regard Hayes’s conduct as so egregious that

it could infer deliberate indifference from the District’s

ultimate judgment call that he should not be penalized.

As the jury clearly did not regard it as obvious that

Hayes had used unreasonable force, his chiefs’ similar

judgment cannot be evidence of a preexisting policy of

countenancing constitutional violations.

* * *

to those tendered for the § 1983 claim. Compare Tr. 2220

(“If you find that the use of that force used by Officer Hayes |

was unreasonable or excessiv. under the circumstances, you

shall find the District of Columbia liable for assault and bat-

tery”) with Tr. 2223 (to establish a constitutional violation )

on which to base his § 1983 claim, Parker must prove that he )

was injured “as a result of the unnecessary and unreasonable

use of force by Officer Hayes’). Whatever affirmative defense

Hayes’s lack of training might have afforded on the common

law claim, no such theory was argued and no instruction to

that effect was tendered to the jury.

In its opinion, the district court attempts to distinguish

this case from City of Los Angeles v. Heller, 475 U.S. 796

(1986). See Mem. Op. at 5-6. With all due respect, in so far

as Heller is relevant to this case, it is on all fours. In Heller,

also a § 1983 case, a jury had found the defendant police

officer’s actions not unreasonable and the officer not liable

in the first half of a bifurcated trial. As the jury’s finding

eliminated the requisite constitutional infraction, the district

court dismissed the action against the municipality as well

and canceled the second half of the proceedings. The court

of appeals reversed, holding that the verdict in favor of the

policeman did not preclude a verdict against the city on an

inadequate training theory. Heller v. Bushey, 759 F.2d 1371

1373-74 (9th Cir. 1985). It found, in an argument almost

identical to that made by the district court here, “that the

jury could have believed that [the policeman], having fol-

lowed Police Department regulations, was entitled in sub-

stance to a defense of good faith.” Jd. at 1373. The Supreme

Court, on appeal, disagreed. Because the jury was not charged

on any good faith affirmative defense theory, the court of ap-

peals could not employ such a theory to discount the verdict

of exoneration. City of Los Angeles v. Heller, 475 U.S. at

798-99.

— none

43a

Running a police department raises a variety of hard

policy issues. The District may not have resolved each of

these perfectly. But even if we assume training errors

and a sufficient causal link between them and Parker’s

injury, there is simply no evidence—from a pattern of

excessive constitutional violations or anything else—from

which a jury could reasonably infer that its decisions

reflected deliberate indifference to increased risks of such

violations. The judgment N.O.V. ought to have been

granted.

Even if there were sufficient evidence, the district

court’s failure to give the properly requested Garner

charge was error and would require remand for a new

trial.

44a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civit Action No. 83-3382

Donaup R. PARKER, et al.,

Plaintiffs,

WiLuiAmM Hayes, et al,

Dejendants.

ORDER

Before the Court is the defendant’s motion for judgment

notwithstanding the verdict, or in the alternative, for a set-

off of the $39,205.72 cost of D.C. General Hospital treatment

for the injured plaintiff. For the reasons set forth below, the

defendant’s motion is denied.

I. Background

On November 14, 1983, Donald R. Parker and his wife,

Betty Parker, brought suit in this Court against the District

of Columbia and two District of Columbia police officers,

William Hayes and Ronald Motley. In their complaint the

Parkers sought compensatory and punitive damages against

the defendants for injuries resulting from an altercation with

District of Columbia police officers near the plaintiffs’ home

in Prince Georges County, Maryland. The plaintiffs asserted

a variety of legal claims, ranging from constitutional and

statutory civil rights violations to assault and battery,

negligence, and loss of consortium.

Prior to trial, plaintiffs dismissed all claims against the

two individual officers,' and before submission to the jury,

' Unless otherwise stated and for ease of reference henceforth, “‘defen-

dant”’ refers to the District of Columbia and “‘plaintiff” refers to Donald

R. Parker.

45a

further dismissed the claims alleging negligence on the part

of the District of Columbia and claims for punitive damages.

Subsequently, after extensive pretrial discovery, a jury was

impaneled and the matter went to trial against the District

of Columbia only. At the conclusion of plaintiffs’ case-in-

chief and again renewed at close of all the evidence, the de-

fendant moved for directed verdicts.? Those motions were

denied and the case was submitted to the jury on two counts:

a state law assault and battery claim and a federal civil rights

claim. The jury found in favor of the District of Columbia

on the state law clair, but against the defendant on the civil

rights claim, brough’ under 42 U.S.C. § 1983, awarding

Donald Parker $425,046.67 in compensatory damages and

Betty Parker $1.00 in nominal damages for loss of

consortium.

The District of Columbia now argues that “‘since the jury

found that Officer Hayes did not use unreasonable force

against Don Parker [as to Count I (the state law assault and

battery claim)], there is no violation of a constitutional right

which is redressable under § 1983 [as a matter of law].”’

Defendant’s Motion for Judgment NOV at 3. In short, the

defendant contends that the jury’s finding on Count I

precludes a judgment against the defeniant on Count II.

Since the police officer involved in the altercation was found

not to have acted with unreasonable and excessive force, the

defendant argues, then the District of Columbia cannot be

guilty of a constitutional violation and cannot, in that

absence, make out a valid section 1983 claim.

Further, the defendant contends even if the verdict on

Count I is not ground for judgment NOV on Count II, the

? The District of Columbia principally argued that Officer Hayes did

not act unreasonably or with excessive force in shooting Donald Parker

and instead acted either in self-defense or in defense of others; and that

plaintiffs had not proven that a District of Columbia policy or custom

was the moving force that caused the alleged violation of plaintiffs’ right

to due process of law.

“

46a

jury verdict must be reversed as a matter of law because the

plaintiffs have not and cannot meet the requirements for

municipal liability under section 1983 as set forth in Monell

v. New York City Dep't of Social Services, 436 U.S. 658

(1978) and its progency.’

Il. Preclusive Effect of Count I

Initially appealing, the defendant’s effort to link the jury

verdict on Counts I and II cannot withstand analysis. The

District of Columbia begins by asserting that the ‘‘jury’s

verdict as to assault . . . precludes any finding of a con-

stitutional violation”:

In order for the jury to properly have found a con-

stitutional violation under the facts of this case,

they would have been obliged to find that Officer

Hayes used unreasonable force in shooting Parker.

The jury made an express finding to the contrary, :

that Officer Hayes did not use excessive force.

Under the current status of § 1983 law, a policy

cannot be deemed “‘unconstitutional’’ absent an af- .

firmative unconstitutional act. The Supreme Court |

reaffirmed that not every instance of unreasonable |

force rises to the level of a constitutional violation. |

Therefore, reasonable force cannot create the con- |

stitutional violation necessary to satisfy section

1983.

*In addition to the arguments summarized above, the defendant |

reiterates its contention that the plaintiffs’ ‘‘§ 1983 claim should not lie |

where there exists an adequate remedy at common law .. . [citing |

Parratt v. Taylor, 451 U.S. 527 (1981)]."" Defendant’s Motion for Judg-

ment NOV at 10 «.3. This claim has been addressed previously, see Order

of September 6, 1985 at 3, and need not be discussed again here. During

the course of the trial the plaintiffs held steadfastly to their position that

the defendant had violated a right to substantive due process, not pro-

cedural due process. See generally Bell v. Wolfish, 441 U.S. 520 (1979);

Rochin v. California, 342 U.S. 165 (1952); Hall v. Tawney, 621 F.2d 607

(6th Cir. 1980).

47a

Defendant's Motion for Judgment NOV at 10 (emphasis in

original) (citations omitted).

It is well established that consistency in general verdicts

is not required. Dunn v. United States, 284 U.S. 390, 393-94

(1932) (‘‘[t}hat the verdict may have been the result of a

mistake on the part of the jury, is possible. But verdicts

cannot be upset by speculation or inquiry into such mat-

ters’’); Borel v. Fibreboard Paper Products Corp., 493 F.2d

1076, 1094 (5th Cir. 1973). The Supreme Court’s 1943 look

at this issue applies with similar vitality. United States v.

Dotterweich, 320 U.S. 277, 279.

Whether the jury’s verdict was the result of

carelessness or compromise or a belief that the

responsible individual should suffer the penal-

ty ... is immaterial. Juries may in in

precisely such motives or vagaries.

Inconsistent general verdicts may be upheld provided there

is evidence to support the finding reached by the jury. There

being ample support in the record here to support the jury’s

verdict on the section 1983 claim, the mere possibility of con-

tradiction in the two verdicts in not a basis for overturning

either verdict.‘

The defendant relies heavily on a recent Supreme Court

decision, City of Los Angeles v. Heller, 106 S. Ct. 1571 (1986),

to argue for a different conclusion. In Heller the district

court held a bifurcated trial on a section 1983 claim brought

against a police officer and a municipality, trying first the

constitutional claim against the individual police officer. The

jury rendered a verdict in favor of the officer, concluding that

no constitutional rights had been violated. Because the con-

stitutional claim against the officer formed the legal basis

‘It should not be overleoked that even assuming arguendo that the

jury’s verdicts are inconsistent, the District of Columbia failed to make

its objection prior to discharge of the jury, when remedy was still possi-

ble, waiving thereby any later objection. See, e.g. Dickerson v. Pritchard,

706 F.2d 259 (7th Cir. 1983).

48a

for the constitutional claim against the city, the district court

correctly concluded that the verdict in favor of the officer

required that the suit against the city could not proceed to

trial. In short, in that case, the initial—and only—verdict

in favor of the individual on the section 1983 constitutional

claim precluded a finding of liability against the city on the

same constitutional claim.

Unlike Heller, our case involves two general verdicts

rendered simultaneously. Count I is dissimilar to the ver-

dict issued in Heller for it involves a wholly separate and

independent state claim. The jury’s verdict on the constitu-

tional claim here is not dependent on the first claim because

the jury was not asked in Count I to make any determina-

tion as to whether a constitutional violation had occurred.

While the conclusion reached on the single verdict in Heller

was necessarily conclusive as to both the officer and the ci-

ty, see Heller, 106 S. Ct. at 1573 (‘“‘[the city was] sued only

because [it was] thought legally responsible for the [officer’s]

action; if the latter inflicted no constitutional injury on [the

plaintiff], it is inconceivable that [the city] could be liable’’),

here Officer Hayes clearly could have been found by the jury

not to have breached a reasonable man standard for assault

and battery but nevertheless his employer could appropriate-

ly, by a preponderance of the evidence, have been found to

have deprived the plaintiff of a constitutional right.°

* That is, the jury possibly sympathetic to an individual’s dilemma in

the dramatic tension recounted could have found when examining only

Officer Hayes’ actions that his conduct was not unreasonable given the

particular conditions at the time of the shooting, his attested and sup-

ported assertion of self defense, and his own lack of training. When assess-

ing the culpability of the District of Columbia, however, the jury could

reasonably have found that the shooting was symptomatic of a city policy

that was deliberately indifferent to the use of excessive force, and hence

constituted a constitutional violation when judged against the standard

for officers properly trained in extra-jurisdictional emergencies. In short,

activity that might not seem “‘shocking”’ when evaluated against the ex-

pectations one might hold for an untrained officer, could well appear

‘shocking’ when evaluated against a standard of training and safety that

the jury could have concluded the municipality reasonably should have

provided.

Abit ie alee:

Oe ee ee Se Bl nk

49a

The defendant’s ‘‘preclusion’”’ argument is further under-

cut by its concession in its reply memorandum that, contrary

to what appeared to be earlier assertions in the motion for

judgment NOV,* the state law claim is not inconsistent with

the Section 1983 claim:

Contrary to plaintiff's understanding, defendant

has made no argument with regard to od incon-

sistency of the verdict in this case. Defendant has

rather asked the Court to grant a judgment not-

withstanding the verdict on count II because defen-

pF are entitled to such a judgment as a matter

of law.

Reply Memorandum at 1 (emphasis in original).

Although the position taken in the reply memorandum is

therefore murky, it suggests that the defendant now believes

that the verdicts should not be upheld ‘‘as a matter of law”’

either because the plaintiffs failed to offer sufficient evidence

to support the verdict against the District of Columbia reach-

ed on Count II, see Borel, 493 F.2d at 1094, or because the

Monell requirements for municipal liability have not and can-

not be met. The latter question is addressed in part III in-

fra. Only the former issue—sufficiency of the evidence—

remains to be addressed within the context of the defendant’s

“preclusion” argument.

When deciding a motion for judgment NOV, ‘‘the jury’s

verdict must stand unless ‘the evidence, together with all in-

ferences that can reasonably be drawn therefrom is so one-

sided that reasonable men could not disagree on the verdict.’ ”

Murphy v. United States, 653 F.2d 637, 640 (D.C. Cir. 1981),

quoted in Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225,

*“Tt is clear that since the jury found that Officer Hayes did not use

unreasonable force against Don Parker, there is no violation of a constitu-

tional right which is redressable under § 1983. . . . In light of that find-

ing, .. . it is clear that the jury cannot award damages for the injury

sustained as a result of the shooting since the shooting, in their minds,

was justified.”” Motion of Defendant for Judgment NOV at 3.

50a

1227 (D.C. Cir. 1984). A motion for judgment NOV will be

denied unless

‘there can be but one reasonable conclusion’ drawn

from the evidence viewed ‘in the light most

favorable to the plaintiffs . . ., giving them the

advantage of every fair and reasonable inference

that the evidence may justify.’

MetroCare v. Washington Metropolitan Area Transit

Authority, 679 F.2d 922, 924-25 (D.C. Cir. 1982), quoting

Foster v. Maryland State Savings and Loan Ass'n, 590 F.2d

928, 930 (D.C. Cir. 1978), cert. denied, 439 U.S. 1071 (1979).

The jury was instructed that in order to find a violation

of section 1983, it must conclude that “‘the District of Col-

umbia failed adequately to train, supervise and discipline”

and that this failure constitutes gross recklessness and gross

indifference to the civil rights of Mr. Parker... .” [Sic]

Prior to submission to the jury of Count II, the Court ruled

affirmatively on the sufficiency of plaintiffs’ evidence. A

review of this matter, in consideration of the instant motion,

reaffirms those rulings.

Here it is clear that the evidence submitted at trial was

neither “so one-sided”’ as to preclude disagreement between

reasonable men nor so overwhelming as to permit ‘“‘but one

reasonable conclusion."’ Two witnesses, Charles Bates and

Roy McLaren, testifying as experts on police procedures,

stated that the Repeat Offender Project (ROP) to which Of-

ficer Hayes was assigned suffered from specific and serious

training inadequacies. William Brownlee, an expert in foren-

sic pathology, testified that the gunshot wounds on Parker’s

body indicated that Officer Hayes had a clear, frontal view

of Parker at the time he shot. While Hayes testified to his

belief that Parker was armed at the time, other evidence

could reasonably have lead a juror to conclude that Parker

(who was unarmed) was the victim of excessive force. Of-

ficer Hayes himself testified that he received little in the way

of disarmament training, and an internal memorandum

5la

revealed that the reviewing representatives in the police

department concluded that the shooting was unjustified. Ad-

ditional expert testimony indicated that Officer Hayes’ unit

received no training in arrest authority and no clear super-

vision or training on the proper manner for handling extra-

jurisdictional arrests. Given the obvious potential risk of

death, or serious bodily injury to the public that could arise

from lack of supervision and control in the field, joined with

the policy instruction to the officer to be “‘innovative’’, and

further given the police department’s ultimate decision to

rescind punishment of Hayes for his shooting of Parker, a

fact known to the jury, it cannot be said unreasonable for

the jury to conclude that the District of Columbia’s inade-

quate ROP training and supervision policy was grossly

reckless and/or grossly indifferent to the constitutional rights

of the plaintiff.

Ill. The Monell Requirements for Municipal Liability

In Monell v. New York City Dep’t of Social Services, 436

U.S. 658, the Supreme Court ruled that a municipality could

be sued under 42 U.S.C. § 1983 provided that it was the ‘‘ex-

ecution of a government's policy or custom”’ that was respon-

sible for inflicting the constitutional injury:

We conclude, therefore, that a local government

may not be sued under § 1983 for an injury inflicted

solely by its employees or agents. Instead it is

when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent of-

ficial policy, inflicts the injury that the government

as an entity is responsible under § 1983.

Monell, 436 U.S. at 694. Summarized briefly, to find

municipal liability Monell requires that there be (1) a policy

(2) of the city’s policymaker (3) that caused (4) the plaintiff

to be subjected to a deprivation of a constitutional right. /d.;

Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985).

52a

The defendant now argues that the verdict on Count II must

be overturned because the plaintiffs have not, and cannot,

satisfy any of those four requirements.

A. The District’s Policymaker

At trial the plaintiffs introduced evidence that Inspector

Edward J. Spurlock organized the squad unit to which Of-

ficer Hayes belonged. Spurlock testified that Police Chief

Maurice Turner gave him full authority to organize, staff and

train the officers in Hayes’ unit. The defendant contends

that these individuals do not constitute ‘‘policymakers”’ for

purposes of the Monell analysis:

Plaintiff has made no showing that a city

policymaker, i.e., here the Mayor or the City Coun-

cil, was the “‘person’’ who, acting for the District

of Columbia, caused plaintiff to be subjected to the

alleged violation of his constitutional right.

Defendant’s Motion for Judgment NOV at 12.

Since the defendant filed its motion for judgment NOV

the Supreme Court has directly addressed the question of

who may constitute a policymaker under Monell. In Pem-

baur v. City of Cincinnati, 106 S. Ct. 1292 (1986), the Court

ruled that ‘‘the power to establish policy is no more the ex-

clusive province of the legislature at the local level than at

the state or national level’’:

Monell’s language makes clear that it expressly en-

visioned other officials ‘“‘whose acts or edicts may

fairly be said to represent official policy,’’ Monell,

supra, 436 U.S. at 694, 98 S. Ct. at 2037-2038, and

whose decisions therefore may give rise to

municipal liability under § 1983.

Id. at 1298-99. Municipal liability ‘“‘attaches only where the

decisionmaker possesses final authority to establish

municipal policy with respect to the action ordered,” id. at

1299, but the authority to make municipal policy ‘‘may be

delegated by an official who possesses such authority.” Jd.

53a

at 1300. Applying this standard to the facts before it, the

Court concluded that a county prosecutor had been delegated

final authority over county police actions sufficient to find

the county liable under section 1983.

Here, uncontested evidence was presented that Chief

Turner gave Inspector Spurlock full authority to organize,

design, and set policy for the ROP squad. The power to

delegate this authority over Hayes’ squad stemmed in the

first instance from the plenary power accorded Chief Turner

by the Mayor for the purpose of operating the police depart-

ment. The delegation that occurred here is not unlike that

in Pembaur. Under the circumstances the jury could have

legitimately concluded that Inspector Spurlock exercised

final authority over ROP squad policy in a manner that “may

fairly be said to represent official policy.’’ Monell, 436 U.S.

at 694.

B. Establishment of a Legally Sufficient Municipal Policy

The defendant contends that “‘in light of Monell and post-

Monell decisions, plaintiff must allege and prove that the

actions of the individual police officers were taken as a result

of an unconstitutional policy or from a systematic pattern

or failure on the part of the District of Columbia to pro-

mulgate appropriate training."" Defendant's Motion for

Judgment NOV at 13-14. In this instance, the defendant

argues, ‘“The expert testimony offered by plaintiffs in no way

satisfied the burden of proof required to support an allega-

tion of constitutional deprivation as the result of custom or

policy . . .. Mr. Parker cannot show a pattern of similar

incidents, by Hayes or other officers, nor can he show that

there was a pattern of gross or reckless disregard of rights

by Officer Hayes or others, such that the City may be held

liable under § 1983." In the defendant’s view, the Supreme

Court’s recent decision in City of Oklahoma City v. Tuttle,

105 S. Ct. 2427 (1985), requires that the plaintiff establish

that the constitutional injury resulted from more than a

single incident, that the city’s policy itself is unconstitutional,

54a

and that the municipal policy evinces a conscious or

deliberate lack of concern for the rights of the plaintiffs and

other similarly situated individuals. The defendant reasons

that at maximum the District of Columbia's police training

policy demonstrated that the District was guilty of uninten-

tional negligence, not conscious or deliberate indifference.

When read in conjunction with other recent case law, Tuttle

does not support the defendant's position. The Tuttle Court

reversed the trial court’s finding of municipal liability not

because the plaintiff established only a single incident of ex-

cessive force by a police officer, but because the trial court’s

instruction permitted the jury to find the city liable “without

submitting proof of a single action taken by a muncipal

policymaker.”’ In short, the jury was instructed that it could

find municipal liability under circumstances where no wrong

could be ascribed to municipal decisionmakers. In the

absence of direct proof of such a connection between a

policymaker and the activity, the Court concluded that con-

siderably more evidence was needed than the existence of

a single incident to establish the required causal link.

. where the policy relied upon is not itself un-

preemie te aL crepe more proof than —

single inciden in every case

sot Sblioh both the sequidite teal on tho gant of the

municipality, and the causal connection between

the ‘policy’ and the constitutional deprivation.

Tuttle, 105 S. Ct. at 2436 (footnotes omitted).

In Pembaur the Supreme Court effectively limited the

scope of the Tuttle ruling by adding that ‘“‘municipal liabili-

ty may be imposed for a single decision by municipal

policymakers under appropriate circumstances”’:

No one has ever Rn —e+ n for ¢ 1983 fee that a

municipality may be li under § 1983 or a single

decision by its properly constituted legislative

body—whether or not that body had taken similar

action in the past or intended to do so in the

future—because even a single decision by such a

body unquesticnably constitutes an act of official

government policy.

Pembaur, 106 S. Ct. at 1298.

55a

Regardless whether one reads Tuttle expansively or inter-

prets Pembaur as limiting the scope of applicability of the

“single incident’’ language in Tuttle, the plaintiffs in this

case submitted more than sufficient evidence to satisfy the

requirements. This Court specifically instructed the jury

that it could not find inadequate training based on a single

incident of unreasonable force. The shooting of plaintiff

Parker, which the plaintiffs’ experts linked directly to the

inadequate level of training given to ROP officers, was not

the sole evidence for a jury to find ‘deliberate indifference.”’

Additionally, there was evidence of the frequency with which

ROP members had to confront potential arrestees in and out

of the District and, in particular, the attempts to effect extra-

jurisdictional arrest [sic] in the face of confusing advice. Here,

the plaintiffs demonstrated through evidence that final deci-

sionmaking authority was delegated from the Mayor,

through the police chief, to Inspector Spurlock as director

of the ROP unit, and that police officers in the ROP unit

received “‘next to nothing”’ in disarmament tactics and extra-

jurisdictional arrest procedures. There was also testimony

as to the relative ease and inexpense involved in producing

appropriate police instruction. The plaintiffs further sub-

mitted evidence indicating the District of Columbia was

aware that without adequate training one of its officers

(Hayes) had acted in a manner considered unjustified by the

investigatory police unit yet consciously elected, through the

police chief, to override that determination and not take

substantive remedial or punitive action on behalf of the ROP

unit or the officer, respectively. The jury reasonably could

have concluded from this ‘ratification’ evidence that the

city maintain-<: 2 policy of “‘conscious disregard’’ for the

training of it:: officers and the rights of its citizens. In short,

the jury had more than a “‘single incident’’ upon which to

base its verdict against the District of Columbia.

Indeed, the evidence offered at trial to establish a

municipal policy of deliberate indifference was not unlike that

56a

used to establish a similar policy in Grandstaff v. City of

Borger, 767 F.2d 161, and in Fiacco v. City of Rensselaer,

783 F.2d 319 (2d Cir. 1986). In Grandstaff, the Fifth Cir-

cuit concluded that ‘‘the disposition” of the policymaker

could be inferred from actions taken (or not taken) after the

incident of policy [sic] misconduct occurred:

... Following this incompetent and

catastrophic performance, there were no

reprimands, no discharges, and no admissions of

error. The officers testified at the trial that no

changes had been made in their policies. If that

episode of such dangerous recklessness obtained

so little attention and action by the City

policymaker, the jury was entitled to conclude that

it was accepted as the way things were done and

have been done in the City of Borger. If prior poli

had been violated, we would expect to see a dif-

ferent reaction. If what the officers did and failed

to do on August 11, 1981 was not acceptable to the

police chief, changes would have been made.

This reaction to so gross an abuse of the use of

deadly weapons says more about the ae

disposition of the City’s policymaker than woul

a dozen incidents where individual officers

employed excessive force. The icymaker's

disposition, his policy on the use of deadly force,

after August 11 was evidence of his disposition

prior to August 11. . ...

. . . If the police chief had not known and ap-

proved of [the dangerous recklessness] beforehand,

we would expect a change when he, too, learned the

facts. But there is no sign of any concern except

that the City avoid liability. The jury was entitled

to infer that the conduct on the 6666 Ranch

demonstrated the mys d of the Borger city police

force as approved by its policymaker. . . .

767 F.2d at 171-172. In Fiacco, 783 F.2d at 326, the Second

Circuit ruled that the plaintiff had properly supported a claim

of ‘‘deliberate indifference’’ by offering evidence which pur-

57a

ported to show that the defendant city had failed to exer-

cise reasonable care in investigating claims of police

brutality:

[Fiacco’s theory] is that the City was knowingly

and deliberately indifferent to the possibility that

its police officers were wont to use excessive force

that this indifference was demonstrated by the

failure of the City defendants to exercise reasonable

care in investigating claims of police brutality in

order to supervise the officers in the proper use of

force. We see no logical flaw in such a hypothesis,

and we reject the motion [sic] advanced by the Ci-

ty defendants that a municipality may not be held

liable under § 1983 on the basis ~ a policy of

deliberate indifference to the constitutional rights

of persons within its domain.

In each of these cases the jury was allowed to find against

the defendant municipality on the basis of evidence of a single

decision by a municipal policymaker not to exercise

reasonable care’ after an incident of constitutional depriva-

tion had occurred. In short, these cases support the inter-

pretation of Tuttle noted above. Here, the jury was entitled

to conclude from the “ratification evidence’ and other

evidence noted above that, even in the absence of multiple

incidents of constitutional deprivation, the District of Colum-

bia maintained a policy of ‘‘deliberate indifference” for which

it could be liable.

In addition to the ‘multiple incident’’ argument, the defen-

dant challenges the legal sufficiency of the jury’s verdict on

Count II by arguing that a policy not itself unconstitutional

can never provide a basis for § 1983 liability. This argument

was analyzed at length in Fiaccio [sic] and rejected:

’ Police Chief Turner's decision to rescind the reprimand of Officer

Hayes was expressly stated to be a “final action."’ As such it clearly

established District of Columbia policy within the meaning of Pembaur,

and could, under appropriate circumstances, expose the District of Colum-

bia to liability under § 1983. See generally, Pembaur, 106 S. Ct. at 1289-99.

58a

Nor are we persuaded by the City defendants’

suggestion that a municipal policy that is not itself

unconstitutional but that merely permits or

tolerates unconstitutional acts by Sy anerese

cannot be the basis for a liability under

§ 1983. For this argument the City defendants rely

on a footnote in the plurality opinion in Tuttle, in

which four Justices ‘‘express{ed] no opinion on

whether a policy that i is not unconstitutional,

such as the general ‘inadequate training’ alleged

here, can ever meet the ‘policy’ requirement of

Monell.”” Id. at 2436 n.7. Notwithstanding this

reservation of view, we think the text of the plurali-

ty opinion implies that a policy that is not itself

unconstitutional may provide the basis for

municipal voy ol e question resolved in Tut-

tle was whether the existence of a policy could be

inferred solely from evidence of the occurrence

of a single incident, and the Court held that more

evidence was i In ing this conclusion,

the plurality opinion noted the plaintiff's conten-

tion that there was in the record additional evidence

of an official policy of inadequate training but

stated that “unfortunately for [plaintiff],”’ the court

had instructed the jury that it could infer the ex-

istence of such a policy solely from evidence of the

occurrence of the single incident, without any ad-

ditional evidence. Jd. at 2435. The implication of

the word “unfortunately’’ would seem to be that if

the og! had not been allowed to infer the existence

of the alleged policy—itself not unconstitutional—

solely from the occurrence of the single incident,

the four Justices who joined this opinion would have

upheld the judgment in favor of the plaintiff. Fur-

ther, in emphasizing that proof of the occurrence

of a single incident is not sufficient to establish the

existence of an official policy, the plurality opinion

went on to state that ‘where the — reli upon

is not itself unconstitutional, considerably more

proof than the — =o will be necessary in

‘ish .

every case to esta . . the requisite fault on

the part of the municipality . . . .” Jd. at 2436

(footnote 7 omitted). e concurring opinion in

Tuttle indicates that three other Justices would have

cia.

upheld the judgment for the ge if it had been

clear that the jury’s finding that there was a policy

of inadequate training was based at least in part

on the other evidence and not just on the evidence

of the occurrence of the single incident there at

issue. See id. at 2438 (Brennan, J., concurring).

Thus, notwithstanding the plurality’s reservation,

it is difficult to conclude that the Court would rule

that, as a matter of law, a policy that is not itself

unconstitutional may not be a premise for

municipal liability under $ 1983.

Nor do we think there is a sound basis for a rule

of law that would preclude the premising of

municipal liability under § 1983 on any policy that

is not itself unconstitutional. A municipality that

has the responsibility to keep order to protect

the rights of those within its boundaries to be free

from physical violence gives its policemen con-

siderable power to subdue persons who would

violate those rights. It cannot responsibly condone

lice officers’ use of the power in a way that is

itself lawless. It should not take a laissez-faire at-

titude toward the violation by its peace officers of

the very rights | are supposed to prevent others

from violating. principle that would give a

municipality immunity from § 1983 liability for

injury caused by its deliberate indifference to its

police officers’ use of excessive force in violation

of constitutional principles would foster the

denial—both by policemen and by civilians—of the

very rights the city is responsible for safeguarding.

783 F.2d at 326-27. This Court finds the analysis persuasive

and, accordingly, adopts it for purposes of this case.

C. Proof of Causation

Finally, the District of Columbia contends that the plain-

tiffs’ evidence was insufficient to show that the inadequate

training of members of the ROP unit was the ‘“‘moving force

behind”’ the constitutional injury that plaintiff Donald R.

Parker suffered. As discussed supra, the evidence provid-

ed a clear and reasonable basis upon which a juror could

reasonably conclude that lack of training was reponsible for

60a

the incident on Bock Road. The plaintiffs’ experts testified

that ROP members received inadequate training in disarma-

ment and extra-jurisdictional arrest procedures. One expert

testified that Officer Hayes had sufficient time to see that

plaintiff Parker was warned before discharging his weapon.

As noted above, the jury logically could have concluded that

Officer Hayes acted reasonably given his lack of training (and

therefore was not accountable on the assault and battery

count), but that had he received adequate training the

shooting on Bock Road would not have occurred. This Court

told the jury that:

At the very least, there must be an affirmative link

violation alleged. The policy must be the moving

force behind the alleged constitutional violation.

If the jury accepted the evidence in the record and evaluated

as credible the testimony of plaintiffs’ experts, then the ver-

dict on Count II is wholly consistent with the plaintiffs’ con-

tention that the District of Columbia's policy of deliberate

indifference “caused” the constitutional deprivation.

IV.

Accordingly, for the reasons set forth above the defen-

dant’s motion for judgment NOV is denied.

Insofar as the District of Columbia has not previously

sought set-off, nor requested a reduction from the jury to

cover medical bills, nor offered any evidence to suggest that

Donald R. Parker will evade his debts for medical care, the

defendant's alternative request for a set-off is denied.

IT IS SO ORDERED.

/s/ Joyce Hens Green

Joyce Hens Green

United States District Judge

JANUARY 29, 1987

[Fitep January 29, 1987]

6la

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SerpTeMBER TERM, 1987

No. 87-7039

Dona.p R. Parker, et al.

District or CotumsBia, Appellant

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF COLUMBIA

Before: Mixva and Wiuiams, Circuit Judges, and

Gorpvon*, Senior District Judge, U.S. District Court for the

Eastern District of Wisconsin.

JUDGMENT

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia, and was argued by counsel. On consideration

thereof, it is

ORDERED and ADJUDGED, by the Court, that the

judgment of the District Court appealed from in this cause

is hereby affirmed, in accordance with the Opinion for the

Court filed herein this date.

Per Curiam

For The Court

/s/ Constance L. Dupre

Constance L. Dupre

Clerk

Date: June 17, 1988

Opinion for the Court filed by Senior District Judge Gordon.

Dissenting opinion filed by Circuit Judge Williams.

*Sitting by designation pursuant to 28 U.S.C. § 294(d).

62a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1987

No. 87-7039

DonaLp R. Parker, et al.

Vv.

WituiaM Hayes, et al.

District or Cotumsia, Appellant

Before: Mixva and Wi.iams, Circuit Judges, and Myron

L. Gorpon*, Senior U. S. District Judge.

ORDER

Upon consideration of appellant’s Petition for Rehearing,

filed July 18, 1988 it is

ORDERED, by the Court, that the petition is denied.

Per Curiam

For The Court

ConstTANceE L. Dupre, Clerk

/s/ By: Robert A. Bonner

Rosert A. BonNneER

Deputy Clerk

Circuit Judge Williams would grant the petition for

rehearing.

*of the United States District Court for the Eastern District

of Wisconsin, sitting by designation pursuant to 28 U.S. [C.]

§ 294(d).

[Fitep: AucGust 18, 1988]

63a

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1987

No. 87-7039

DoNALD R. PARKER, et al.

Vv.

Wi.uiaM Hayes, et al.

District or CoLumBIA, Appellant

Before: Wa.p, Chief Judge, Ropinson, Mikva, Epwarps,

Rutu B. GinsBuraG, STARR, SILBERMAN, BUCKLEY, WILLIAMS,

D.H. GinssurG and SENTELLE, Circuit Judges.

ORDER

Appellant’s Suggestion for Rehearing En Banc has been

circulated to the full Court. The taking of a vote was re-

quested. Thereafter, a majority of the judges of the court

in regular active service did not vote in favor of the sugges-

tion. Upon consideration of the foregoing, it is

ORDERED, by the Court en banc, that appellant’s sug-

gestion is denied.

Per Curiam

For The Court

ConsTANCE L. Dupre, Clerk

/s/ By: Robert A. Bonner

Rosert A. BONNER

Deputy Clerk

Circuit Judges Starr, Silberman, Buckley, Williams and

Sentelle would grant the suggestion for rehearing en banc.

Circuit Judge D. H. Ginsburg did not participate in this

order.

[Fitep: AucGustT 18, 1988]

64a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civit Action No. 83-3382

Dona.p R. PARKER AND Betty PARKER,

Plaintiffs,

Vv.

District or CoLuMBIA,

Defendant.

JUDGMENT ON THE VERDICT

This cause having been tried by the Court and a Jury, before

the Honorable Joyce Hens Green, Judge presiding, and the

issues having been duly tried and the Jury having duly

rendered its verdict; now, therefore, pursuant to the verdict,

IT IS ORDERED, ADJUDGED AND DECREED that

the Jury found that the [sic] Officer Hayes did not use

unreasonable and excessive force against Don Parker on the

plaintiff's claim of Assault and Battery,

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Jury found that the District of Colum-

bia had a policy, custom or practice which directly resulted

in the deprivation of Don Parker's constitutional right

without due process of law on the plaintiff's claim of Viola-

tion of Constitutional Rights — Due Process,

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Jury awarded the plaintiff Don Parker

the sum of Four Hundred Twenty-five Thousand Forty-six

Dollars and Sixty-seven Cents ($425,046.67) on the afore

named findings of the jury,

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the jury found that Betty Parker did not

65a

sustain any loss of consortium as a result of the injuries to

Don Parker on the plaintiff's claim of Loss of Consortium

— Betty Parker,

AND IT FURTHER ORDERED, ADJUDGED AND

DECREED that the Jury awarded the plaintiff Betty Parker

the sum of One Dollar ($1.00) on the afore named findings

of the jury.

JAMES F. Davey, Clerk

ls) By: Joe A. Wood, Jr. Oct. 3, 1985

Deputy Clerk

Approvep: /s/ Joyce Hens Green

Joyce Hens GREEN

United States District Judge

OctToBErR 3, 1985

{[Fitep: OctToser 3, 1985]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.