Petition — Languirand v. City of Pass Christian

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83 - FILED |

1407 FEB 10 1904

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In The

Supreme Court of the United States

October Term, 1983

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JOHN LANGUIRAND,

Petitioner,

versus

CITY OF PASS CHRISTIAN,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

MISBISSEPPI-SUPREME COURT

WS. Gut of Appsals fo he PtH. Grenct

PETITION FOR WRIT OF CERTIORARI

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Norman Bretanp

Post Office Box 396

Gulfport, Mississippi 39502

(601) 863-2217

Water J. Gex, Il

Gex, Gex & Phillips

Post Office Box 128

Bay St. Louis, Mississippi 39520

(601) 467-6515

Attorneys for Petitioner

COCKLE PRINTING CO. 231! Douglas St., Omaha 68102

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QUESTIONS PRESENTED FOR REVIEW

1. Does 42 U.S.C. § 1983 require proof that the en-

tire “police force” be inadequately skilled or experienced

in order to make out a prima facie case where it is uncon-

troverted that the actions of the city showed a policy of

not requiring weapons training prior to allowing a police

officer to carry a deadly weapon?

2. Does the opinion below of the Court of Appeals

for the Fifth Circuit create a conflict which this Court

should resolve as between the Second, Fifth, Sixth, Eighth

and Tenth Circuits, all as measured as against the back-

drop of Monell v. Social Services of New York, 436 U.S.

658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruling Mon-

roe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

See Owens v. Haas, 401 F.2d 1242, 1246-47 (2d Cir. 1979)

cert. den., 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407

(1979); Hayes v. Jefferson County, Ky., 668 F.2d 869, 874

(6th Cir.) cert. den., — U.S. —, 103 S.Ct. 75, 74 L.Ed.2d

73 (1982), where two Circuits hold that single incidents

without proof of a general failure to train are sufficient

to state the cause of action, and constitute the proper

standard of proof. Cf. Herrera v. Valentine, 653 F.2d 1220

(8th Cir. 1981) and McClellan v. Facteau, 610 F.2d 693,

697 (10th Cir. 1979), where the Plaintiff’s Fourth Amend-

ment right to be secure in his person against unwarranted

use of police’s excessive force constitutes the constitu-

tional deprivation complained of in the cause of action

only where the city has “prior notice”.

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ii

. PARTIES TO THE PROCEEDINGS

1. John Languirand, io

2. City of Pass Christian, Mississippi, - 3

3. John Hayden (dismissed by jury vedict).

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TABLE OF CONTENTS

Page

Questions Presented for Review i

Parties to the Proceedings iii

Table of Authorities iv

Verdict and Opinion Below 1

Jurisdiction —_ 2

Questions Presented for Review 2

Constitutional Provisions and Statutes Involved... 3

Statement of the Case 4

Reasons for Granting the Writ

I. (A) Species of Proof Required 5

(B) The Conflict in the Second, Fifth, Sixth,

Eighth and Tenth Circuits 8

Conclusion 10

II. Split in the Circuits 11

Conelusion 15 ;

Certificate of Service 18 é

Appendix A—Judgment dated June 23, 1981, of ;

the United States District Court, Southern Dis- 3

trict of Miss., Southern Division App. 1

Appendix B—Opinion dated Oct. 17, 1983, of the

United States Court of Appeals, Fifth Circuit _App. 28

Appendix C—Denial of Suggestion for Rehearing

‘En Banc, dated Nov. 30, 1983, United States

Court of Appeals, Fifth Circuit App. 30

iv

TABLE OF AUTHORITIES

CASES: Page

Berry v. McLemore, 670 F.2d 30 (5th Cir. 1982).-+-=-s— ss 83

Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 555 L.Ed.

2d 252 12

Dimarzo v. Cahill, 575 F.2d 15, (1st Cir. 1978), cert.

den., 439 U.S. 927, 99 8.Ct. 312, 58 L.Ed.2d 320 (1978) 9

Hampton v. Holmesburg Prison Officials, 546 F.2d

1077 (3rd Cir. 1976) 9

Hayes v. Jefferson County, Ky., 668 F.2d 869 (6th

’ Cir.) cert. den., — U.S. —, 103 S.Ct. 75, 74 L.Ed.2d

73 (1982) 3

Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981) 3, 10, 12

Horne v Moorhead, 228 So.2d 369 (Miss. 1969)... 6

Jackson v. Martin, 261 F.Supp. 902 (N.D. Miss. 1962) 17

Kirkland v. Harrison, 221 Miss. 714, 74 So.2d 820

(Miss. 1954) 6

Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.

1978) 7, 9, 12

Marshall Durbin, Inc. v. Tew, 362 So.2d 601 (Miss.

1978)

McClellan v. Facteau, 610 F.2d 693 (10th Cir. 1979) 3, 10

Monell v. Dept. of Social Services of the City of New

York, 436 U.S. 658, 98 S.Ct. 2018 (1978), 56 L.Ed.2d

611 2, 5, 6, 7, 8, 11, 16

Monroe v. Pape, 365 U.S. 167, 81 8.Ct. 473, 5 L.Ed.2d

492 (1961) 2

Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 8.

Ct. 2748, 69 L.Fid.2d 616 (1981) 7, 8

Owen v. City of Independence, 445 U.S. 622 (1980) 100

BC 1500 1neD) 6 Lead er {1900} 7, 8

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TABLE OF AUTHORITIES—Continued

Pages

Owens v. Haas, 401 F.2d 1242, (2d Cir 1979) cert. den.,

444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407

(1979) 2, 7, 8, 9, 12

Popow v. City of Margate, 476 F.Supp. 1237 (D.N.

J. 1979) 12

Powe v. City of Chicago, 664 F.2d 639, (7th. Cir. 1981) 10

Pruett v. City of Rosedale, 421 So.2d 1046 (1982)... _ 12

Reeves v. City of Jackson, 608 F.2d 644, (5th Cir.

1979) 12

Rizzo v. Goode, 523 U.S. 362, 96 S.Ct. 598, 46 L.Ed.

2d 561 (1976) 7,9

Smith v. Wade, — U.S. —, — S.Ct. —, 75 L.Ed.2d

632 (April 20, 1983) 5, 8, 11, 12, 13, 15

Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978), vacated

439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 646, modified,

591 F.2d 426 (2d Cir. 1979)

Wagner v. Bonner, 621 F.2d 675 (5th Cir. 1980) 7, 17

STaTUTEs:

U.S. Constitution, Amendment IV _____3, 4, 10, 16, 17

U.S. Constitution, Amendment XIV 3, 4, 16

Title 28, U.S.C.A. 4 1254 2

Title 42, U.S.C. § 1983 _2, 3, 9, 10, 11, 12, 13, 16

)

In The

Supreme Court of the United States

October Term, 1983

—o-

JOHN LANGUIRAND,

Petitioner,

versus

CITY OF PASS CHRISTIAN,

Respondent.

——

Ww

PETITION FOR WRIT OF CERTIORARI TO THE

MISSISSIPPI SUPREME COURT

Dew

—— a

PETITION FOR WRIT OF CERTIORARI

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John Languirand respectfully petitions for a Writ of

Certiorari to review the opinion of the United States Court

of Appeals appeal to the Fifth Cirenit rendered on Octo-

ber 17, 1983.

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VERDICT AND OPINION BELOW

The verdict of the Jury in the United States District

Court for the Southern District of Mississippi as appended

2

hereto is the “judgment”. The opinion of the Court of

Appeals is appended hereto styled. “Languirand vs. Hay-

den, an individual, v. City of Pass Christian”, ete., 717

F.2d 220 (5th Cir., Oct. 17, 1983).

‘——

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JURISDICTION

This petition is filed in a timely manner pursuant to

Rule 20 of the United States Supreme Court; jurisdiction

is based on Title 28 USCA $1254.

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QUESTIONS PRESENTED FOR REVIEW

1. Does 42 USC § 1983 require proof that the entire

“police force” be inadequately skilled or experienced in

order to make out a prima facie case where it is uncon-

troverted that the actions of the city showed a policy of

not requiring weapons training prior to allowing a police

officer to carry a deadly weapon?

2. Does the opinion below of the Court of Appeals

for the Fifth Cireuit create a conflict which this Court

should resolve as between the Second, Fifth, Sixth, Eighth

and Tenth Circuits, all as measured as against the back-

drop of Monell v. Social Services of New York, 436 U.S.

658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruling Mon-

roe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492

(1961). See Owens v. Haas, 401 F.2d 1242, 1246-47 (2d

Cir.) cert. den., 444 U.S, 980, 100 S.Ct. 483, 62 L.Bd.2d

407 (1979); Hayes v. Jefferson County, Ky., 668 F.2d 869,

874 (6th Cir.) cert. den., — U.S. —, 103 S.Ct. 75, 74 L.Ed.

2d 73 (1982), where two Circuits hold that single incidents

without proof of a general failure to train are sufficient

to state the cause of action, and constitute the proper

standard of proof. Cf. Herrera v. Valentine, 653 F.2d

1220 (8th Cir. 1981) and McClellan v. Facteau, 610 F.2d

693, 697 (10th Cir. 1979), where the Plaintiff’s Fourth

Amendment right to be secure in his person against un-

warranted use of police’s excessive force constitutes the

constitutional deprivation complained of in the cause of

action only where the city has “prior notice”.

, ———

—_

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U. 8S. Constitution, Amendment IV

The Right of the people to be secure in their persons

... against unrevsonable searches and seizures shall

not be violated.

U. 8. Constitution, Amendment XTV

. . » Nor shall any state deprive any person of life,

liberty or property without due process of law; nor

deny to any person within its jurisdiction equal pro-

tection under the laws.

Title 42, USC $1983

Every person who, under color of any statute, ordi-

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

Territory or the District of Columbia, subjects or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof,

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

ties secured by the laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress...

STATEMENT OF THE CASE

The jury, in a general verdict without any special

issues or interrogatories, found for Hayden and against

the city for One Million, Five Hundred Thousand

($1,500,000.00) Dollars. The Petitioner filed suit under

42 USC $1983, the Fourth and Fourteenth Amendments

to the United States Constitution on May 29, 1979, and

the jury returned its verdict on February 11, 1981. The

Court of Appeals reversed on October 17, 1983, reh. en

banc den., — F.2d —, Nov. 30, 1983. Languirand sued

the police officer and the city under the theory that the

City inadequately trained, particularly in the use of his

pistol, John Hayden, and alleged the shooting of the Peti-

tioner was a “proximate result of the alleged policy or cus-

tom of the City of Pass Christian of placing armed officers

on the streets without adequate training in the use of

weapons and firearms”. The jary charge required that the

City be found grossly negligent in order for a verdict to

be rendered against it, but as the D'ifth Circuit stated :

. but did not submit any good faith defense with

respect to the City.'

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REASONS FOR GRANTING THE WRIT

I.

(A) SPECIES OF PROOF REQUIRED

It is respectfully submitted that the Fifth Circuit

Court of Appeals, in defining the issue as “sufficiency of

evidence” to support the “species of tort liability” set in

force by Monell, supra, is simply not correct in view of

the discussion which follows.

The Court of Appeals held that the “police chief”

and/or the “police force” was not shown to have been

completely inadequately trained. What is the “species”

in view of this Court’s holding in requiring application of

modern tort law?’ This simply appears to be a “way out”

of defining the reason for exonerating the city, placing re-

sponsibility for constitutional policy on police depart-

ments, and not requiring the enforcement of the jury man-

date that the city pay the compensatory damages i) the

sum of $1,500,000.00. The Court of Appeals therefore did

not face the Petitioner’s cross appeal for interest, penal-

, ot

1 Sie eater to Go Wh ours Gumep om Gy Oe pamese of

stigte, 75 LAd.dd 682, — US. —, — $0. —

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ties, and supersedeas bond, resting on the theory that the

city is “a person” under Monell, supra. Mississippi cases

and statutes place the city beyond the reach of interest

and penalties on the issues of cross appeal since the

city is under such law not “a person”. This question was

not reached by the Fifth Cireuit Court of Appeals.

The Court of Appeals erroneously, under Respondeat

Superior, put the police force “on trial” in its opinion,

and since there were four to seven policemen (appearing

in the record) employed by the City of Pass Christian

during the time of the shooting of the Petitioner (R.281),

three to six of whom had been to the Jackson, Mississippi,

Police Academy for a short period of training, including

weapons training (R.281), while Hayden had not, this

constitutes 17.25% to 25% of the police force (R.281).

The city had employed a Civil Service Commission to

which it had apparently delegated the responsibility of the

use of deadly force by the police force (R.284) with no

guidelines which is an Ultra Vires delegation of power.

Remembering that the ordinary rules of tort law should

be applied, the cases are legion in Mississippi holding that

“foreseeability of the natural consequences of a person’s

act” are part and parcel of the standard of proof required

of the plaintiff.’

The City of Pass Christian, as composed of the

Mayor and the Board of Aldermen on December 2, 1974,

knew or should have known and should have reasonably

foreseen that placing a deadly weapon, ie. 357 Mag-

num Mississippi Highway Patrol police revolver (R.16,

3, Kirkland v. Harrison, 221 Miss. 714, 74 $o.2d 820 (Miss.

1954); Marshall Durbin, Inc, Tew, 362 $0.2d 601 (Miss.

7

17) in the hands of « rookie, untrained policeman, who

was twenty-one (21) years old at the time and who had

just been recently promoted from “dispatcher” (R.15)

would most pruiably lead to the very consequences

which caused the grievous injuries to be suffered by the

petitioner here.

The Court of Appeals did not note that Mayor Steve

Saucier, who was mayor of Pass Christian, Mississippi,

on December 2, 1974, stated that the city had no policy

with regard to the training of its policemen, much less

weapons training (R.82, 83). The city created a “Civil

Service Commission” which hired Hayden (R.282).

How could it be said that the city’s policy or custom

(none here) was not the proximate cause of the injury

here, as did the Court of Appeals in focusing instead on

the police chief’s ‘‘negligence’’.

Plaintiff produced evidence required by Monell,

supra; Owens v. Haas, 601 F.2d 1242 (2d Cir.) cert. den.,

444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Leite

v. City of Providence, R.J., 463 F.Supp. 585, 590-91

(D.R.I.) (1978); Rizzo v. Goode, 523 U.S. 362, 96 S.Ct.

598, 56 L.Ed.2d 561 (1976); Wagner v. Bonner, 621 F.2d

675 (5th Cir. 1980) at the time that the case was tried.

The Magistrate who tried the case held the plaintiff

to a burden of proof commensurate with that later an-

nounced in Owen v. City of Independence, which was that

‘‘deliberate indifference” and gross negligence must be

shown in order to recover compensatory damages only,

and he accorded a good faith defense to John Hayden,

the individual police officer, in accordance with New-

port v. Fact Concerts, Inc., supra (1981), and Owen,

supra. Newport, swpra had not even been decided at the

ATE Pa ¢ 4 ane Se rin, A Ca le

time of the trial in January of 1981, refusing to allow

punitive damages, thereby anticipating Newport, supra.‘

The more ‘‘restrictive view’’ expressed in Berry v.

McLemore, 670 F.2d 30 (5th Cir. 1982) and the opinion

below can not and should not be allowed to stand in view

of the divergence in the circuits and the clear language

of the controlling U. 8S. Supreme Court cases cited above.

As was said in Smith v. Wade, supra:

The remaining question is whether the policies and

purposes of § 1983 itself require a departure from

the rules of tort common law. As a general matter,

we discern no reason why a person whose federally

guaranteed rights have been violated should be

granted a more restrictive remedy than a person as-

serting an ordinary tort cause of action. Smith of-

fers us no persuasive reason to the contrary. 75

L.Ed.2d 632, 646

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(B) THE CONFLICT IN THE SECOND, FIFTH,

‘SIXTH, EIGHTH AND TENTH OIROUITS

In Owens v. Haas, 401 F.2d 1242 (2nd Cir. 1979)

cert. den., 444 U.S. 980, 100 S.Ct. 483, 6 L.Ed.2d 407

(1979), the Court observed as follows:

The District Court was correct in noting that a mere

failure by the county to supervise its employees

would not be sufficient to hold it liable under $1983.

4. Monell v. of Social Services of the of New York,

436 U.S. 658, 98 S.Ct. 2018 (1978), 56 L.Ed.2d 611; Owen v.

of , 445 U.S. 622 (1980), 100 S.Ct. 1398

1980), 63 673 (1980); Newport v. Fact Concerts, Inc.,

453 U.S. 247, 101 S.Ct. 2748, 69 LEd2d 61

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Rizzo v. Goode, 523 U.S. 362, 96 8.Ct. 598, 46 L.Ed.2d

561 (1976). However, the county could be held

liable if the failure to supervise or the lack of a

proper training program was so severe as to reach —

the level of gross negligence or ‘‘deliberate’’ indif-

ference to the deprivation of the plaintiff’s consti-

tutional rights. Leite v. City of Providence, R.I., 463

F’. Supp. 585, 590-91 (D.R.I. 1978) See also Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077, 1081-

82 (3rd Cir. 1976). This concept of ‘‘deliberate in-

difference” does not hold the county at fault for the

actions of its employees on a respondeat superior

basis; it holds the county liable for its own actions

which result in deprivation of constitutional rights.

See Turpin v. Mailet, 579 F.2d 152, 164-65 n. 37 (2d

Cir. 1978) vacated 439 U.S. 974, 99 S.Ct. 554, 58

L.Ed.2d 646, modified 591 F.2d 426 (2d Cir. 1979);

Dimarzo v. Cahill, 575 F.2d 15, 18 (1st Cir. 1978) cert.

den., 439 U.S. 997, 99 S.Ct. 312, 58 L.Ed.2d 320 (1978).

The Court of Appeals for the Second Circuit has

amplified the contours of this particular species of liabil-

ity more adequately as follows:

Although a city can not be held liable for simple

negligent training of its police force, the city’s citi-

zens do not have to endure a “pattern” of past police

misconduct before they can sue the city under 4 1983.

Owens v. Haas (supra) at 401 F.2d 1242, 1246.

The Court of Appeals for the Fifth Circuit care-

fully did not mention the language wh:ch immediately

follows the foregoing language at 401 F.2d 1246 appear-.

ing in Owens v. Haas:

A municipality is fairly considered to have actual or i

imputed knowledge of the almost inevitable conse- 2

quences that arise from a non-existent or grossly —

inadequate training and supervising of a police force.

(Emp. ours)

10

With regard to the split of authority, the Court of

Appeals below noted:

We will attempt a review of the numerous decisions

in the Circuits touching on these points. As might

well be expected, they are not entirely harmonious.

Some of these decisions, while allowing §1983 re-

covery against a municipality for failure to properly

train and discipline the police officers, nevertheless,

apparently require that this be an essentially sys-

tematic failure resulting in a pattern of police mis-

conduct. See Herrera v. Valentine, 653 F.2d 1220

(8th Cir. 1981). See also, McClellan v. Facteau,

610 F.2d 693, 697 (10th Cir. 1979) (‘‘must show that

the defendant was adequately put on notice of prior

misbehavior’’). Such a requirement would appear to

be consistent with the general rule as to the require-

ment of proof of custom or policy. See Powe v. City

of Chicago, 664 F.2d 639, 649-52 (7th Cir. 1981).

The facts of the case here show that the jury found

that the actions of the Mayor and Board of Aldermen

of the City of Pass Christian, Mississippi, were so gross-

ly negligent in failing to see the inevitable consequences

of the use of a deadly weapon by an untrained police of-

ficer as to amount to a ‘‘reckless indifference’’ with re-

gard to the plaintiff’s Fourth Amendment rights. This

is a simply stated cause of action over which the Court,

should not struggle in order to reach a just and equit-

able result for the petitioner here.

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, 4

It is concluded that while some cansal link must be

made between the municipality’s failure to train and the

violation of constitutional rights, a single incident such

11

as placing a twenty-one (21) year old, untrained police

officer with a deadly weapon on the streets of a munici-

pality where the city had no policy or custom of requir-

ing any minimum standards of training for such officers,

this is sufficient to suggest that link, and if the same is

a question for the jury as governed by the principles ot

Smith v. Wade, supra, under the ordinary tort law of

the State of Mississippi where the accident in question

occurred, the jury resolution should stand, petitioner’s

writ should be granted, and the Court of Appeals should

be reversed.

IT.

SPLIT IN THE CIRCUITS

There is a split of authority in the five circuits with

regard to the standard of proof for sufficiency of the evi-

dence for compensatory damages under 42 USC $1983

under Monell. In the case sub judice, the Court of Ap-

peals remarked that it reached only one issue: “Whether

the evidence established the requisite custom (Emp. ours)

or policy for which a city can be held liable. . .” 717

F.2d 220, 223. Further, the Court of Appeals indicated

that, “Our research discloses no decision of the Supreme

Court which has made any holding or given any authori-

tative direction, on the issue of liability under $1983 of

a governmental unit for injuries resulting from lack of

adequate training of its personnel.” Ibid. 717 F.2d 220,

225.

The Court of Appeals went on to hold:

. Some courts interpreting Monell have seas he a

municipal policy of authorizing or encouraging po

misconduct can be inferred where the munici ssokcipelty

training or

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Ga

12

disciplining of its police force. Herrera v. Valentine,

653 F.2d 1220, 1224 (8th Cir. 1981); Owens v. Haas,

401 F.2d 1242, 1246-47 (2d Cir.) cert. den., (444 U.S.

980, 100 S.Ct. 483, 62 L.Ed.2d 407) (1979); Popow v.

City of Margate, 476 F.Supp. 1237, 1245-46 (D.N.J.

1979); Leite v. City of Providence, 463 F.Supp. 585,

590-91 (D.R.I. 1978); see also Reeves v. City of Jack-

son, 608 F.2d 644, 652 (5th Cir. 1979) (dictum) Id.

at 32-33. (Emp. ours.)

We described that interpretation as ‘this most ex-

pansive view of Monell’ and expressly decline(d) to

rule on whether this interpretation of Monell is proper.

(Id. at 33 and n. 1).

In a case not discussed in the Court of Appeals, Smith

v. Wade, — U.S. —, 75 L.Ed.2d 632, — S.Ct. —, April 20,

1983) the Supreme Court indicated some guidance with

regard to the standard of proof required for compensa-

tory damages by way of dicta, even though it did not have

before it the issue of “adequacy of the evidence to support

the verdict of liability for compensatory damages”. 75

L.Ed.2d 632, 637. Mr. Justice Brennan observed that:

“In the absence of more specific guidance, we look first

to the common law of torts (both modern and as of

1871) with such modification or adaptation as might

be necessary to carry out the purpose and policy of

the statute. Carey v. Piphus, 435 U.S. 247, 253-264,

555 L.Ed.2d 252, 98 S.Ct. 1042. We have done the

same in other context arising under 1983, especially

the recurring problem of common law immunities.”

(cit. om.)§

5. hanes tas ebicitibandh ti akinatal

July, 1984, in Pruett ¥. OF oP Rosedale, 421 7 S02

of Ga cae a2 1982, tn the Cour of here

case on ,

The Somudiiy ‘eaph pammuonde

under 42 U.S.C. § 1983.

13

This Court observed in pertinent part:

The remaining question is whether the policies and

purposes of $1983 require departure from the rules

of tort common law. As a general matter, we discern

no reason why a person whose federally guaranteed

rights have been violated should be granted a more

restrictive remedy than a person asserting an ordi-

nary tort cause of action. Smith offers no persua-

sive reason to the contrary. Smith v. Wade, Id. 75.

L.Ed.2d at 646.

More particularly, the Court noted:

. . . Smith seems to assume that prison guards and

other state officials look mainly to the standard of

punitive damages in shaping their conduct. We ques-

tion the premise; we assume, and hope, that most

officials are guided primarily by the underlying of

federal substantive law—both out of devotion to duty

and in the interest of avoiding liability for compensa-

tory damages. (Emp. ours.) At any rate, the con-

scientious officer who desires clear guidance on how

to do his job and avoid lawsuits can and should look

to the standard for actionability in the first instance.”

Id. at 648.

This Court in its analysis of Smith v. Wade, supra,

was concerned with:

The focus is on the character of the tort feasor con-

duct—whether it is of the sort that calls for deter-

rance and punishment over and above that provided

by compensatory awards. If it is of such a character,

then it is appropriate to allow a jury to assess puni-

tive damages; and that assessment does not become

less appropriate simply because the plaintiff in a case

faces @ more ing standard of

14

lesser degrees of fault. (cit. om.) 75 L.Ed.2d 632 at

650.

Petitioner was held to a standard of “deliberate in-

difference” in the jury instruction.°

6. You are instructed that the City of Pass Christian, Missis-

sippi, was a municipal corporation duly and legally char-

tered by the State of Mississippi as such, and that it was a

municipal corporation and political subdivision of the State

of Mississippi on December 2nd, 1974, and further that since

a corporation can act only through its officers, or employees,

or r agents, the burden is on the plaintiff to establish,

by a preponderance of the evidence in this case, that the

policy or custom of placing police officers on duty in the

City of Pass Christian who were inexperienced and unquali-

fied to act as a police officer using a deadly weapon, if you

and consequential damages suffered the

plaintiff, if any of you so find from a es of Se

evidence, then, in that event, any ro —— of any offi-

cers, employee, or other t of said mun ration

in the performance of his or her duties Is held in law to be

the act or omission of the municipal corporation.

15

CONCLUSION

Since there is a split in the Circuits, and since the

petitioner here was held to a standard of deliberate in- :

difference instead of gross negligence, and since Smith |

v. Wade, supra, indicates that the common law rule of the

(Continued from previous page)

the defendant, City of Pass Christian, was guilty of gross

negligence which proximately caused or proximately con-

tributed to cause incident in question. If you find that

the City of Pass Christian was not Beeld negligent in the

training of its officers, then your verdict must be for the de-

fendant, the City of Pass Christian.

injury or damage complained of, and that the injury or dam-

og) lained. :

the act on the part of the officers, employees or agents of

the municipal corporation, the City of Pass Christian, Mis-

sissippi.

You are instructed according to the laws of the State of

Mississippi that the ing au of the City of Pass

Christian on December 2nd, 1974, the power and the

authority, in its discretion, to the of munici-

ot police officer which eld officer wodd incur

16

state where the “constitutional tort” occurs under § 1983

should be looked to for guidance, it is submitted respect-

fully that the tort law of the State of Mississippi with re-

gard to foreseeability would dictate a result consistent

with the actions of the District Court. The trial judge

allowed the jury to decide whether a complete lack of

foreseeability of allowing the use of deadly force by a

twenty-one (21) year old untrained policeman constitutes

a “reckless indifference” towards the rights of the citizen

(plaintiff) under the Fourth Amendment and Fourteenth

Amendment to the United States Constitution with regard

to a complete lack of reasonable foreseeaLility. The jury

should decide whether this conduct constituted the requi-

site “reckless indifference”.

The Fifth Circuit Court of Appeals would not agree

with the Sixth and Second Circuits and would not have a

single incident give rise to the cause of action as contem-

plated by Monell, supra.

This petition gives this Court ample opportunity to

define the “lowest common denominator” of the cause

of action with regard to a single incident, and to specifi-

cally settle the conflict as between the five (3-2) Circuits

with regard to the sufficiency and species of evidence (or

“species”) where the plaintiff does not seek to prove that

the entire police force or the majority of the police force

of the entire city is not properly trained.

The District Court properly instructed the jury in a

manner consistent with the standards of Monell, supra.’

The Court of Appeals focused on the conduct of the police

chief. This does not correctly interpret Monell. The pol-

7. See jury instructions—fn.® (supra)

. . an Shears -

; > ee »

* ee wee we Putin te eee

17

icy or custom of the City regarding deadly force under the |

Police Power cannot be delegated with impunity where

a reasonably foreseeable catastrophy lies in wait. Mis-

sissippi towns have long known the standard of care in

using firearms. Jackson v. Martin (N.D. Miss.), 261 F.

Supp. 902 (1962). This delegation, if any, would be Ultra

Vires.

The Fifth Cireuit has recognized the Fourth Amend-

ment’s applicability to shooting cases. Wagner v. Bonner,

621 F.2d 675 (5th Cir. 1980). Therefore, this petition

should be granted and certiorari should be granted, and

the Court of Appeals should bo reversed.

RESPECTFULLY SUBMITTED this the 8 day of

February, 1984.

Joun LANGUIRAND

By: /s/ Norman Bre.anp

His Attorney

By:

Water J. Gex, IIT

His Attorney

Norman BreLanp

1919 Twenty-Third Avenue

Post Office Box 396

Gulfport, Mississippi 39502

601-863-2217

Watrer J. Gex, TT

Gex, Gex & Pues

Post Office Box 128

Bay St. Louis, Mississippi 39520

601-467-6515

one

18

“ GERTIFICATE

I, NORMAN BRELAND, of counsel for the Petition-

er, and a Member of the Bar of the Supreme Court of the

United States, hereby certify that I have served the fore-

going Petition for Writ of Certiorari to the Mississippi

Supreme Court on Counsel for Respondent, by deposit-

ing same in the United States Mail, postage prepaid on

the 8 day of February, 1984, to Honorable George M.

Morse, White & Morse, Attorneys, at Post Office Drawer

100, Gulfport, Mississippi 39502.

Dated this the 8 day of February, 1984.

By: /8/ Norman BreLAnD

App. 1

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF MISSISSIPPI

SOUHERN DIVISION

CIVIL ACTION NO. 879-0197(C)

JOHN LANGUIRAND,

Plaintiff,

VERSUS

JOHN HAYDEN, an individual, and

THE CITY OF PASS CHRISTIAN, an

incorporated political subdivision

of the State of Mississippi

Defendants.

JUDGMENT

(Filed June 23, 1981)

This cause having come on for trial on its merits on

Monday, February 9, 1981, before this Court, the Honor-

able John M. Roper, United States Magistrate presiding,

and all parties having appeared with their respective at-

torneys and having announced ready for trial, and having

consented to said trial before said Magistrate, the Court

then did empanel a jury of twelve good and lawful citizens

being duly qualified, sworn and empaneled, did hear the

testimony of all the witnesses and consider the evidence

and the arguments of counsel, and did receive instructions

of the Court and retired to consider its verdict on Wed-

nesday, February 11, 1981, and the jury did presently re-

turn into open Court the following verdict, to-wit:

“WE, THE JURY, FIND FOR THE PLAINTIFF

(JOHN LANGUIRAND) AND ASSESS HIS DAMAGES

App. 2

AT ONE MILLION FIVE HUNDRED THOUSAND

DOLLARS, as the verdict of the jury.”

IT IS, THEREFORE, ORDERED AND ADJUDGED

that the Plaintiff, JOHN LANGUIRAND, does recover

and have of the Defendant, CITY OF PASS CHRISTIAN,

MISSISSIPPI, the sum of ONE MILLION FIVE HUN-

DRED THOUSAND DOLLARS, and that all costs of

this action are assessed to the Defendant, CITY OF

PASS CHRISTIAN, MISSISSIPPI, for which proper

process may issue.

Pursuant to the opinion of this Court dated June 17,

1981, no interest may be assessed against the Defendant,

CITY OF PASS CHRISTIAN, MISSISSIPPI.

ORDERED AND ADJUDGED this 23rd day of June,

1981.

/s/ Joun M. Rorer

UNITED STATES MAGISTRATE

mi i Miers epee

“ oo > " - ay Oo ere <r! Th Ae

Po) pe ee eo PL Re Pe er AR ES EO a

App. 3

John LANGUIRAND, Plaintiff-Appellee

Cross-Appellant,

Vv.

John HAYDEN, An Individual,

Defendant,

City of Pass Christian, Etc., Defendant-Appellant

Cross-Appellee.

No. 81-4329.

United States Court of Appeals,

Fifth Circuit.

Oct. 17, 1983.

City appealed from a judgment of the United States

District Court for the Southern District of Mississippi,

John M. Roper, Magistrate, which held it liable under sec-

tion 1983 for severe injuries sustained by plaintiff as re-

sult of a shooting by a patrolman. The Court of Appeals,

Garwood, Circuit Judge, held that although there was evi-

dence from which jury could reasonably conclude that

patrolman was grossly negligent in causing severe per-

manent injuries to plaintiff and that city police chief was

grossly negligent in sending patrolman on patrol without

additional training, city could not be held liable for plain-

tiff’s injuries under section 1983 where there was no evi-

dence that city police force in general was inadequately

skilled or experienced, that there had been other actual

or claimed incidents of police misconduct or negligence,

that city had any general policy or custom of sending un-

skilled or inexperienced officers on patrol or that mem-

bers of city’s governing body were themselves grossly

App. 4

negligent in failing to prevent patrolman’s going on patrol

without additional training.

Reversed.

Goldberg, Circuit Judge, concurred specially.

1. Civil Rights 13.7

City can be sued for constitutional deprivations vis-

ited pursuant to governmental “custom” even though such

a custom has not received formal approval through the

body’s official decision-making channels. 42 U.S.C.A.

§ 1983.

2. Civil Rights 13.7

A local government may not be sued under section

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

official policy, inflicts the injury that the government as

an entity is responsible under section 1983. 42 U.S.C.A.

§ 1983.

3. Cwil Rights 13.7

Municipality may be liable under section 1983 for in-

tentional conduct of its governing body, and no such con-

duct is an ad hoc, isolated, individual action not taken

pursuant to any overall municipal custom or policy. 42

U.S.C.A. § 1983.

4. Civil Rights 13.7

If there is a cause of action under section 1983 against

a municipality for failure to properly train a police of-

Bi: ,

VE IAS

App. 5

ficer whose negligent or grossly negligent performance

of duty has injured a citizen, such failure to train must

constitute gross negligence amounting to conscious indif-

ference, and a municipality is not liable under section 1983

for negligence or gross negligence of its subordinate of-

ficials, including its chief of police, in failing to train par-

ticular officer in question, in absence of evidence at least

of a pattern of similar incidents in which citizens were in-

jured or endangered by intentional or negligent police

misconduct and/or that serious incompetence or misbe-

havior was general or widespread throughout the police

force. 42 U.S.C.A. § 1983.

5. Civil Rights 13.13(3)

Although there was evidence from which jury could

reasonably conclude that patrolman was grossly negligent

in causing severe permanent injuries to plaintiff and that

city police chief was grossly negligent in sending patrol-

man on patrol without additional training, city could not

be held liable for plaintiff’s injuries under section 1983

where there was no evidence that city police force in gen-

eral was inadequately skilled or experienced, that there

had been other actual or claimed incidents of police mis-

conduct or negligence, that city had any general policy

or custom of sending unskilled or inexperienced officers

on patrol or that members of city’s governing body were

themselves grossly negligent in failing to prevent patrol-

man’s going on patrol without additional training. 42

U.8.C.A. § 1983.

App. 6

Lee N. Perry, George E. Morse, Frank P. Wittmann,

Ili, Gulfport, Miss., for defendant-appellant cross-ap-

pellee.

Norman Breland, Gulfport, Miss., Walter J. Gex, III,

Bay St. Louis, Miss., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the

Southern District of Mississippi.

Before GOLDBERG, WILLIAMS and GARWOOD,

Circuit Judges.

GARWOOD, Circuit Judge:

In this case we venture into the labyrinth of munici-

pal liability under 42 U.S.C.A. § 1983.' Conscious of the

grievous injury suffered by the plaintiff-appellee, we nev-

ertheless reverse because the evidence fails to establish

such a custom or policy of the City defendant as required

for municipal liability under section 1983.

THE INCIDENT

On the evening of December 2, 1974, plaintiff John

Languirand and his friends, Kim Merritt and Rickey Fo-

ley, drove from Bay St. Louis to Pass Christian, Missis-

sippi. They were just “driving around.” They stopped

at a convenience store to buy some beer. Eventually, Fo-

1. 42U.S.C.A. § 1983 provides in part:

App. 7

ley requested they stop again so he could relieve himeelf.

Languirand turned onto Shadowlawn, an unlit gravel road

within the Pass Christian city limits. He drove up this

road a short distance and stopped near the middle while

Foley walked toward the side.

Meanwhile, about 10:30 or 11:00 p.m., John Hayden,

a patrolman on the police force of defendant City of Pass

Christian, had responded to a radio call concerning a

prowler. He was near the reported location on Shadow-

lawn. As he drove onto this road, he turned off all the

lights on his patrol car. He saw Languirand’s car parked

about “a hundred feet” from the residence of the person

who had reported the prowler. Hayden stopped his car,

got out, and turned on an overhead spotlight. Foley was

moving back to the car. Hayden testified that he saw a

shiny object in Foley’s hands and that he shouted “stop”

a number of times. Foley, however, testified that he was

not carrying anything and that he heard nothing. Foley

could not tell that the vehicle was a patrol car. Although

Hayden testified that a flashlight was later found near

the scene, this was not confirmed. He also stated that as

Foley got in the car, it began to drive away and that he

now saw the shiny object inside the car. Hayden testified

that he was afraid because he though this object was a

gun. As the car began to drive away, Hayden fired his

.357 Magnum revolver at the left rear tire of the car in

an effort to stop it. Though he did not recall doing so,

he fired a second shot also. During this time, John Lan-

guirand was bent over adjusting his tape deck, which was

playing. He heard no warnings and did not see the patrol

car pull up behind him. Suddenly, the spotlight was in

his rearview mirror, he heard two shots, his foot slipped

App. 8

off the brake and hit the gas pedal, and the car went down

the road until it veered off and struck a tree. Hayden’s

second shot struck Languirand in the base of the neck,

which caused extremely severe permanent injuries, includ-

ing partial paralysis from the chest down.

PROCEEDINGS BELOW

Languirand filed suit on May 29, 1979, against Hay-

den and the City of Pass Christian (“City”). The case

was tried to a jury before a United States Magistrate.

The jury, in a general verdict without any special issues

or interrogatories, found for Hayden and against the

City for $1,500,000. The City appeals the judgment on the

verdict against it. Languirand does not appeal the judg-

ment in Hayden’s favor.’ Languirand’s suit against Hay-

den was based on the assertion that Hayden used exces-

sive force in his attempt to stop or apprehend Languirand.

However, it was not claimed that Hayden intended to

shoot Languirand or anyone else. Rather, it was Langui-

:

-_~

i

—

-

*

lie

}

App. 9

rand’s theory that Hayden was grossly negligent in his

shooting at the car in an attenipt to stop it. The case

3. Plaintiff's witness, Senator Smith, a law enforcement and

firearms expert who investigated the incident in his then

capacity as an assistant sheriff (he later became a state sena-

tot), testified in response to questions by plaintiff's counsel

at:

“He [Hayden] was not attempting to shoot anyone in the

car. There were two shots fired. The first shot entered

the lower left panel down by the tire of the car at an angle

which was apparent to me that he was attempting to stop

the car or was aiming at the tire. The second bullet en-

tered above that, just a little bit to the right and entered

just above the body of the car and went through the—

this was a convertible car, by the way—went through the

canvas and part back at the left side, left rear of the car.

“| simply think he fired the gun twice in rapid succession,

attempting to shoot the left rear tire of the car out, and

the second shot the gun jumped on him and the bullet

—_ through the back of the car and struck the Languirand

y:

“Q. Do you think he intended to fire the second shot?

“A, 1 think he intended to fire it, but | think he was

intending to fire it at the tire, and that the gun simply

rose on him.

“Q. All right, sir. On the basis of your experience

would you expect that a gun of that caliber, a .357 Mag-

oe = raise up when it was fired like that in rapid suc-

cession

“A. Yes, sir, | would.”

Plaintiff's counsel took the same position in t to

the trial court (“it is the ntiff’s position that all proof ad-

duced in this trial so far that there was no intent upon

the part of John Hayden to shoot the tiff here”) and

App. 10

against Hayden was submitted to the jury on the basis

of whether he used excessive force and was grossly negli-

gent in doing so, but the jury was also instructed to find

for Hayden if he acted “in good faith with a reasonable

belief under the circumstances, including his experience

and training, in the validity of his conduct.” The theory

of the plaintiff’s suit against the City was that Hayden

was inadequately trained, particularly in the use of his

pistol, and that the shooting of Languirand was, as this

contention was phrased in the trial court’s charge to the

jury, “a proximate result of the alleged policy or custom

of the City of Pass Christian of placing armed officers

on the streets without adequate training in the use of

weapons or firearms.” The charge required a determina-

tion that the City was grossly negligent for a verdict to be

rendered against it, but did not submit any good-faith de-

fense with respect to the City.‘

We reach only one issue—whether the evidence es-

tablished the requisite custom or policy for which a city

can be held liable under section 1983.

(Continued from previous page)

in part on this statute, was a to the trial court just

to submission of the case to jury, the trial court in -

_ing the motion stated, without contradiction by any counsel,

“Vl state for the record it’s not charged here that

intentional tort in this case, nor do | think one has been

the

proven.” (Emphasis added.)

4. We refer to the trial court’s charge not for purpose of

expressing our or disapproval of it (no com

: BI ges enn

App. 11

MUNICIPAL LIABILITY UNDER

SECTION 1983

(1, 2] Since 1978 the law regarding the liability of

municipalities under section 1983 has been radically

changed. In that year, the Supreme Court decided Monell

v. Department of Social Services, 436 U.S. 658, 98 S.Ct.

2018, 56 L.Ed.2d 611 (1978), which overruled the holding

in Momroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d

492 (1961), that cities were not among the “persons” sub-

ject to suit under section 1983. The Court held that mu-

nicipalities “can be sued directly under § 1983 for mone-

tary, declaratory, or injunctive relief where ... the action

that is alleged to be unconstitutional implements or ex-

ecutes a policy statement, ordinance, regulation, or deci-

sion officially adopted and promulgated by that body’s

officers.” 436 U.S. at 690, 98 S.Ct. at 2035. Moreover, a

city can be sued “for constitutional deprivations visited

pursuant to governmental ‘custom’ even though such a cus-

tom has not received formal approval throngh the body’s

official decisionmaking channels.” Jd. at 690-91, 98 S.Ct.

at 2035-36. With respect to custom, Monell quoted with

approval the language of Adickes v. 8.H. Kress ¢ Co.,

398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142

(1970), that “practices of state officials could well be

so permanent and well settled as to constitute a ‘custom

or usage’ with the force of law.” Monell, 436 U.S. at 691,

98 S.Ct. at 2036 (footnote omitted).’ However, Monell,

App. 12

ruled that “Congress did not intend municipalities be

held liable unless action purs'ant to official municipal

policy of some sort caused a constitutional tort” and

that “a municipality cannot be held liable under § 1983

on a respondeat superior theory.” Jd. at 691, 98 S.Ct. at

2036. As the Court stated, “[A] local government may

not be sued under 4 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 law-

makers or by those whose edicts or acts may fairly be said

to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Jd.

at 694, 98 S.Ct. at 2037.

The Court in Monell did not address all the possible

variations and permutations of section 1983 actions against

municipalities. In Monroe v. Pape, the Court had observed

that section 1983 “should be read against the background

of tort liability that makes a man responsible for the nat-

ural consequences of his actions.” 365 U.S. at 187, 81 S.Ct.

at 484. However, Monell does distinguish between ordi-

nary tort liability and the liability of govePhmental units

under section 1983 in its holding that respondeat superior

is not available in the latter situation. Moreover, in Owen

v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63

L.Ed.2d 673 (1980), the Court also distinguished between

section 1983 actions against individuals and those against

municipalities by denying the latter a good faith immun-

ity. A distinction was also made between the section 1983

liability of governmental units and individuals in Newport

v. Facts Concerts, Inc., 453 U.S. 247, 101 8.Ct. 2748, 69 L.

Ed.2d 616 (1981) where it was held that the former were

not subject to punitive damages, though the latter were.

~ ¥% 4 me é + 7

: Lip | SD Nath Sata ne eh oad

NUR ON ce MD ERE PLL PRD AED: bi Eee le AF FF

App. 13

A footnote in the Monell opinion, in rejecting the ar-

gument for respondeat superior liability based on the con-

tention that “liability follows the right to control the ac-

tions of a tortfeasor,” states that “[b]y our decision in

Rizzo v. Goode, [423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561

(1976)], we would appear to have decided that the mere

right to control without any control or direction having

been exercised and without any failure to supervise is not

enough to support § 1983 liability.” Jd. 436 U.S. at 694 n.

58, 98 S.Ct. at 2037 n. 58. In contrast to Monell, Rizzo v.

Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976),

was not an action against a municipality, but rather

against the individuals who were the mayor, city manag-

ing director, police commissioner, and other police super-

visors of Philadelphia,’ seeking injunctive relief under

6. Similarly, Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68

L.Ed.2d 420 (1981), in which the Supreme Court, in an opin-

ion by Justice Rehnquist, indicated that negligent deprivation

of property by rnmental officials in course of their

duties might subject such individuals to suit under section

1983 if the plaintiff had no adequate state law remedies, did

not concern the liability of governmental units as such. How-

ever, Parratt unlike Rizzo in this respect, did not focus on the

nature of the required nexus between the loss and the de-

fendants’ dereliction, or on how that might be affected by

the character of the dereliction, but rather merely assumed

a sufficient nexus in the case before it and went on to hold

that in any event there was no cause of action because state

law remedies were adequate. For these reasons, we do not

consider that Parratt speaks directly to the issues we con-

sider in the case at bar.

a - difficult ore + -. discern from Parratt an over-

pattern section urisprudence such as to throw

meenineee Sen on Ge Rares we seek to re-

solve here. We note that in a sense Parratt seems to poten-

tially expand section 1983's reach, by its discussion of neg-

(Continued on following page)

App. 14

section 1983 on account of diverse incidents in which city

police officers had, in the course of their duties, deprived

(Continued from previous page)

ligent deprivations. On the other hand, not only does it

focus seem to be on procedural (rather than substantive) due

process, but it heavily relies on the impropriety of ‘turning

every alleged — which may have been inflicted by a state

official acting under ‘color of law’ into a violation of the

Fourteenth Amendment cognizable under § 1983” so that

“any party who is involved in nothing more than an auto-

mobile accident with a state official could allege a constitu-

tional violation under § 1983.” Id. at 544, 101 S.Ct. at 1917.

The latter language is strongly reminiscent of the suggestion

in Paul v. Davis, 424 U.S. 693, 698, 96 S.Ct. 1155, 1159, 47

L.Ed.2d 405 (1976), also authored by Justice Rehnquist, that

“survivors of an innocent bystander mistakenly shot by a

policeman or negligently killed by a sheriff driving a govern-

ment vehicle” would not have claims under section 1983.

We also note that the observation in Justice Powell’s con-

curring opinion in Parratt, “arguably, if the absence of a tort

remedy is the heart of one’s constitutional claim, the defend-

ant in the § 1983 suit must be the State itself, or its law-

makers, both of whom are immune from suit,” id. at 550 n.

8, 101 S.Ct. at 1921 n. 8, is not addressed by the Parratt

majority.

We have not found Parratt to impose liability on a mu-

nicipality under section 1983 in all cases of injury caused

by the municipality’s negligence, even where the state law

remedy may be inadequate. See Hull v. City of Duncanville,

678 F.2d 582 (Sth Cir. 1982) (alleged failure, even if inten-

tional, of municipality to enforce speed limit and erect need-

ed traffic control device at dangerous crossing, resulting in

serious accident, does not state section 1983 claim against

municipality, even if state law remedy were inadequate).

Parratt may well become a key to the weaving of an over-

all seamless web of section 1983 jurisprudence. creation

of such an overall pattern, however, is beyond our compe-

tence as an inferior court, and we are unable at this time

to discern all the permutations of its likely eventual develop-

ment by the Supreme Court.

We note that Hayden apparently had no qualified immun-

ity under Mississi law. See Holland v. Martin, 214 Miss.

1, 56 So.2d 398 (1952).

‘ Bo ° 7

:

:

f

re eT st

App. 15

various individual city residents of their constitutional

rights. Approximately twenty such specific incidents were

found by the trial court to have occurred during the pre-

ceding year, id. at 367-68, 96 S.Ct. at 602, which the Su-

preme Court noted, though found to reflect a “statistical

pattern,” was also found to be “ ‘fairly typical of . . . po-

lice departments in major urban areas.’” Id. at 375, 96

S.Ct. at 606. The Supreme Court, reversing the district

court and Court of Appeals, held that there was no evi-

dence to support a claim under section 1983 against the

defendants. So far as we can determine, Justice Rehn-

quist’s opinion for the Court in Rizzo makes no reference

to failure to supervise or to the possibility of liability, or

. deficiencies in proof, in that or any similar respect. Ra-

ther, the thrust of the opinion seems to be that the de-

fendants were not shown to have done anything affirma-

tive to bring about the complained of wrongs. Justice

Rehnquist observed that “there was no affirmative link

between the occurrence of the various incidents of police

misconduct and the adoption of any plan or policy by pe-

titioners—express or otherwise—showing their authoriza-

tion or approval of such misconduct.” Jd. at 371, 96 S.Ct.

at 604 (emphasis added). The opinion expressly rejects

the plaintiffs’ contention that “petitioners’ failure to act

. . . is indistinguishable from the active conduct enjoined

in” other cases, id. at 376, 96 S.Ct. at 606, and relies on the

district court’s finding “that the responsible authorities

had played no affirmative part in depriving any mem-

bers of the two respondent classes of any constitutional

rights.” Id. at 377, 96 S.Ct. at 607 (emphasis added).

In Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445,

70 L.Ed.2d 509 (1981), the Court described Monell as hav-

App. 16

ing “held that official policy must be ‘the moving force of

the constitutional violation’ in order to establish the li-

ability of a governmental body under 4 1983” and then

cited Rizzo for the proposition that a “general allegation

of administrative negligence fails to state a constitutional

claim cognizable under § 1983.” Jd. at 326, 102 S.Ct. 454.

Our research discloses no decision of the Supreme

Court, or of this Court, which has made any holding, or

given authoritative direction, on the issue of the liability

under section 1983 of a governmental unit for injuries

resulting from the lack of adequate training of its per-

sonnel. In Berry v. McLemore, 670 F.2d 30 (5th Cir.1982),

we were faced with a section 1983 suit against a munici-

pality based on injuries directly caused by the intentional

misconduct of its chief of police. We observed that

“... some courts interpreting Monell have held that

a municipal policy of authorizing or encouraging police

misconduct can be inferred where the municipality

has been grossly negligent in the hiring, training, or

disciplining of its police force. See, e.g., Herrera v.

Valentine, 653 F.2d 1220, 1224 (8th Cir.1981); Owens

v. Haas, 601 F.2d 1242, 1246-47 (2d Cir.), cert. denied,

[444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979)];

Popow v. City of Margate, 476 F.Supp. 1237, 1245-46

(D.N.J. 1979); Lette v. City of Providence, 463 F.

Supp. 585, 590-91 (D.R.1.1978); see also Reeves v.

City of Jackson, 608 F.2d 644, 652 (5th Cir.1979) (dic-

tum).” Id. at 32-33 (emphasis added).

We described that interpretation as “this most ex-

pansive view of Monell” and “expressly decline[d] to rule

on whether this interprejation of Monell is’ proper.” Id.

at 33 & n. 1. Such a ruling was not necessary because we

found no evidence that the city’s governing body was neg-

ligent in hiring or failing to train the police chief and be-

App. 17

cause, with respect to the municipality’s failure to dis-

cipline the police chief, “a municipal policy of authorizing

or encouraging police misconduct . . . cannot be inferred

from a municipality’s isolated decision not to discipline a

single officer for a single incident of illegality.” Id. at 33.

Other decisions of this Court, though not dealing with

the issue of failure to train, have nevertheless emphasized

the requirement that the wrongful act be taken pursuant

to the municipality’s custom or policy in order for the mn-

nicipality to be liable under section 1983. See Brewer v.

Blackwell, 692 F.2d 387, 400-01 (5th Cir.1982) (police

chief’s insistence that prisoner sign hold harmless agree-

ment before release from jail not shown to be pursuant

to any municipal policy or custom to require such agree-

ments); Walters v. City of Ocean Springs, 626 F.2d 1317,

1323 & n. 3 (5th Cir.1980) (allegedly malicious warrrantless

arrest without probable cause does not give rise to mu-

nicipal liability under section 1983 where there is no evi-

dence “there existed a municipal policy or custom that,

when carried out, inflicted the injury,” and such a policy

is not adequately shown by testimony that investigation

in question “would meet the standards required by the

[city] Police Department”). On the other hand, where

the offending action carries out a municipal policy or cus-

tom, we have found municipal liability under section 1983.

See Garris v. Rowland, 678 F.2d 1264, 1274-75 (5th Cir.),

cert. denied sub nom. City of Fort Worth v. Garris, — U.S.

—, 103 S.Ct. 143, 74 L.Ed.2d 121 (1982) (arrest in question

was pursuant to “the procedure of the police department”

to carry out an arrest on a valid warrant without further

investigation “even though further investigation to deter-

App. 18

mine if sufficient facts existed to formally file a charge

against the arrestee was contemplated”).

Though not involving the liability of a governmental

unit as such, we believe this Court’s opinion in Wanger v.

Bonner, 621 F.2d 675 (5th Cir.1980), aptly illustrates some

of the foregoing principles. There, the defendant sheriff,

Bonner, was held individually liable under section 1983

for the actions of his deputies in searching throughout the

Wangers’ residence in connection with a middle-of-the-

night attempt to serve an out-of-county arrest warrant

specifying the address of the Wangers’ house as that of

Payne, the party named in the warrant. In fact, Payne

was not present and apparently had never had any con-

nection with the Wangers or that address, where the

Wangers had lived for three years. No attempt was made

to check the accuracy of the address information on the

warrant, either before proceeding to the residence or fol-

lowing the Wangers’ protest and production of identifica-

tion when the deputies arrived and announced their pur-

pose. Instead, the deputies simply proceeded to make a

thorough search. Despite the fact that frequently as many

as one fourth or one fifth of the warrants served would

have incorrect addresses, it was the policy of the sheriff’s

office that “no attempt was made to verify the correctness

of addresses on warrants received from other counties

prior to attempting to serve them” and “the standard in-

structions from the Sheriff’s Department were always to

search the premises when informed that the person named

in the warrant was not present at the address listed on the

warrant” even though there was no information, other

than the listing on the warrant, that the address was cor-

rect and no attempt had been made to verify it. Id. at 679-

App. 19

80. In the incident in question, the deputies were acting

pursuant to these policies. This Court’s opinion comment-

ed that the defendant sheriff’s “failure to adopt policies

to prevent constitutional violations ... [w]Jould not be an

adequate basis for [his] liability under § 1983,” but af-

firmed a judgment against the sheriff because “his liability

was based upon affirmative policies that he acknowledged

adopting concerning the manner in which arrest warrants

were to be served... that... had precipitated the alleged

unconstitutional actions of his deputies.” Jd. at 680-81

(emphasis added).

This rationale was followed in Reimer v. Smith, 663

F.2d 1316 (5th Cir.1981), in upholding the dismissal of a

section 1983 complaint against a Texas Ranger captain

grounded on the actions of his subordinates, it being al-

leged that “as their superior officer” he “was negligent in

his failure to supervise them.” Id. at 1323. The Reimer

opinion observes: “In Wanger ...we stated that a super-

visory official could not be held liable for failing to adopt

policies to prevent constitutional violations....” Id. See

also Vela v. White, 703 F.2d 147, 153 (5th Cir.1983).

We will not attempt a review of the numerous deci-

sions in other Circuits touching on these points. As might

well be expected, they are not entirely harmonious. Some

of these decisions, while allowing section 1983 recovery

against a municipality for failure to properly train and

discipline police officers, nevertheless apparently require

that this be an essentially systemic failure resulting in a

pattern of police misconduct. See, e.g., Herrera v. Val-

App. 20

entine, 653 F.2d 1220 (8th Cir.1981).’ See also McClelland

v. Facteau, 610 F.2d 693, 697 (10th Cir.1979) (“must show

that the defendant was adequately put on notice of prior

misbehavior”). Such a requirement would appear to be

consistent with the general rule as to the requirement of

proof of custom or policy. See Powe v. City of Chicago,

664 F.2d 639, 649-52 (7th Cir.1981). Other decisions, how-

ever, indicate that “citizens do not have to endure a ‘pat-

tern’ of past police misconduct before they can sue the

city under section 1983,” and that recovery may be had

7. In Herrera, plaintiff sued the city under section 1983 for

the beating intentionally inflicted upon her by its police of-

ficers, claiming ‘‘that the City’s failure to ‘alegre hire, train,

retain, supervise, discipline and control” the officers “directly

caused her tortious injury.” /d. at 1224. The Court observed

that “[i]n order to prove her case” plaintiff ‘had to estab-

lish that the City had notice of prior misbehavior and that

its failure to act upon such knowledge caused her injury.”

Id. The Court indicated its approval of the rule that where’

“ ‘senior personnel have knowledge of a pattern of constitu-

a offensive acts by their subordinates but fail to take

remedial steps, the municipality may be held liable for a

subsequent violation if the superior’s inaction amounts to

deliberate indifference or to tacit authorization of the offen-

sive acts.’”’ Id., quoting from Turpin v. Mailet, 619 F.2d 196,

201 (2nd Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66

L.Ed.2d 475 (1980). Herrera went on to note that a munici-

pality could be liable if it “fails to train its police force” and

that “a municipality's continuing failure to remedy known

unconstitutional conduct of its police officers is the type of

informal policy or custom that is amenable to suit under

section 1983.” Id. at 1224 (emphasis added). In sustaining

recovery against the city, the Court observed that it was

“adequately notified” numerous prior incidents, includ-

ing one hearing at which “nearly forty separate complaints

of police misconduct” were made) that its “police force

needed close and continuing supervision. It, however, per-

mitted its overzealous police force to continue its overlord-

ing. The inevitable result was the kind of misconduct that

ee oe physical beating ....” Id. at 1225 (em-

<~ > . 2 bree 4 pitty ee, a mts ra

i AER . a | Ee ae fe ds” ee ee ot Pees ek ey

App. 21

for injury that “results from the complete lack of training

or grossly inadequate training of a police force” provided

such is “the result of a deliberate and conscious indiffer-

ence by the city.” Leite v. City of Providence, 463 F.Supp.

585, 590-91 (D.R.1.1978) (emphasis addéd). See also Hays

v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.), cert.

denied, — U.S. —, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982). But

see id, at 876-78 (dissenting opinions). Still others may

indicate that recovery on such a theory may be had against

a municipality on the basis of a single incident and without

proof of a general failure to train. See Owens v. Haas,

601 F.2d 1242, 1246-47 (2d Cir.), cert. denied, 444 U.S. 980,

100 S.Ct. 483, 62 L.Ed.2d 407 (1979). But see Popow v.

City of Margate, 476 F.Supp. 1247, 1246-47 (D.N.J. 1979).

[3] We also observe that it is well settled that a mu-

nicipality may be liable under section 1983 for the inten-

tional conduct of its governing body, even though such con-

duct is an ad hoc, isolated, individual action not taken pur-

suant to any overall municipal custom or policy. See, e.g.,

Newport v. Facts Concerts, Inc., swpra (city council) ; Owen

v. City of Independence, supra (city council); Familias

Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980) (school

district board of trustees). This is also true regarding dep-

rivations directly caused by the intentional actions of in-

dividual officials respecting a subject matter where they

have the legal “final authority,” and are the “ultimate re-

pository of ... power,” of the governmental unit in ques-

tion. Familias Unidas, 619 F.2d at 404. But we have held

city police chiefs not to be such officials, even as to their in-

tentional actions, as they are almost uniformly subordinate

to the city’s governing body. Brewer v. Blackwell, 692

App. 22

F.2d at 401; Berry v. McLemore, supra. Cf. Bennett v.

City of Slidell, 697 F.2d 657, 661 (5th Cir.), rehearing

granted, 706 F.2d 533 (5th Cir.1983) (deprivation directly

caused by intentional acts of city building inspector and

city attorney).

[4] We conclude that if there is a cause of action

under section 1983 for failure to properly train a police

officer whose negligent or grossly negligent performance

of duty has injured a citizen, that such failure to train

must constitute gross negligence amounting to conscious

indifference, and that a municipality is not liable under

section 1983 for the negligence or gross negligence of its

subordinate officials, including its chief of police, in fail-

ing to train the particular officer in question, in the ab-

sence of evidence at least of a pattern of similar incidents

in which citizens were injured or endangered by intentional

or negligent police misconduct and/or that serious incom-

petence or misbehavior was general or widespread through-

out the police force. Viewing the evidence against this

standard, and in the light required by Boeing Company

v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969), we find

it insufficient to make out a prima facie case of section

1983 liability against the City. Hence, we hold that the

trial court erred in failing to grant the City’s motions for

directed verdict and for judgment n.o.v.

EVIDENCE CONCERNING THE CITY’S

LIABILITY

[5] Hayden was hired by the City’s police depart-

ment as a dispatcher in January 1974. He had graduated

from high school in 1971, and before his employment with

the police department had successfully completed a two-

App. 23

year junior college course in which he was awarded an

Associate Degree in Law Enforcement. This course, how-

ever, did not include field training or actual practice in

the use of weapons. Hayden’s twenty-first birthday was

in March 1974. In August 1974, he passed, with a score —

of 81, a civil service examination and was made a patrol-

man (though the evidence is unclear, it appears Hayden

also took and passed a civil service examination before

becoming a dispatcher). The examination was prepared

and administered by the City’s civil service commission.

Hayden was scheduled to attend the Mississippi Law

Enforcement Officers’ Academy for an eight-week law en-

forcement training course, including weapons firing, be-

ginning in September 1974. However, he was married on

August 30, and pursuant to his request, was allowed to

postpone his attendance at the Academy.

There is nothing to suggest that prior to the incident

in question Hayden’s performance of duty was in any way

deficient, or that anything in it, or otherwise in his past,

reflected adversely on him.

The evidence was conflicting as to the extent of Hay-

den’s training and ability to use his revolver. Hayden

testified he shot on his own in the woods and at a target

range, and was able to hit what he was aiming at. Gerald

Peralta, who wae the City’s chief of police from 1969 until

August or September 1974, testified that he required new

officers to qualify on the firing range before being allowed

to carry a weapon, and that he assumed, though he could

not specifically recall, that Hayden did so. However, Hay-

* rer vated the Pera me” Hayden wa ee

App. 24

den admitted that he had not received formal training in

the use of his weapon, and the jury was free to find that

he had not qualified and that his testimony as to the extent

of personal practice and skill in the use of the weapon was

exaggerated. While Peralta and Johnson, the assistant

police chief who became acting chief on Peralta’s depart-

ure, each expressed the opinion that Hayden was fully

competent to handle his patrolman job, the jury was free

to find otherwise, particularly considering the testimony

of Senator Smith, based on his investigation of the incident

(see note 3, supra), that at the time in question Hayden

had not “had the minimum training that was necessary

for him to do his job.”

Hayden, having been suspended on account of the acci-

dent, “resigned” two days after its occurrence. The in-

vestigation of the incident was conducted by the sheriff’s

department, partially at the request of the new police chief,

Edward Alley, who had commenced his employment with

the City on the morning of December 2, 1974. Alley shortly

thereafter instituted a policy that “every police officer

riding in a squad car has to go to police academy [the Mis-

sissippi Law Enforcement Officers’ Academy] before he

gets in the car.” *

There is simply no evidence that the City, or its police

force, had any policy or custom of resort to weapons, or

other employment of significant force, in circumstances

which might be deemed improper, unnecessary, or danger-

ous. There was no evidence of any other incident which

involved, or which anyone claimed inrolved, police mis-

9. ee ee nt ae Ne ok ver

the feasibility of such a procedure. See Fed.R.Evid. 407

App. 25

conduct or even any simple negligence on the part of the

police. Apart from the incident in question, there was no

evidence that any police officer had ever acted, or was

claimed to have acted, in an improper or negligent manner,

or even that any citizen had been injured, or exposed to

risk of injury, in any incident involving the police. There

was no evidence that anyone on the police force, other than

Hayden, lacked sufficient skill, training, and experience to

be qualified for and able to adequately perform the posi-

tion he or she held.'° There is simply no evidence that the

City had any policy or custom of placing armed officers

on the streets who lacked adequate training, skill, and ex-

perience in the use of firearms.

Of course, if the City had had in force the policy that

Chief Alley subsequently promulgated, and which Smith

testified he believed all cities should have, Hayden would

not have gone on patrol without having first attended the

Academy. But under the evidence here, this failure to

have earlier adopted an Alley-type policy cannot be con-

10. Peralta testified that Hayden was the only one on the.

force who had not successfully completed Mississippi

the City’s force who had not been to the Academy, but a

fair reading of his testimony as a whole indicates this was

not so much stated on personal knowledge as it was a state-

ment that he did not the officers had been or was

App. 26

verted into having a policy of placing incapable police offi-

cers on patrol. There is simply no showing that such was

the case. Whatever policies the City may have failed to

adopt respecting training, there is no showing that any

of its officers, other than Hayden, were not adequately

equipped, by training, experience, and ability, to compe-

tently perform their jobs. What we are dealing with here,

so far as this record discloses, is one isolated incident in

which the police chief negligently, or grossly negligently,

allowed one particular inadequate officer to go on patrol,

and this officer’s inadequacies resulted in one particular

incident of negligent or grossly negligent injury to a citi-

zen. Grievous and regrettable as that incident and injury

indisputably are, that does not convert this case to one of

municipal policy or custom under section 1983.

Nor does the evidence here warrant a finding that the

City’s governing body was itself grossly negligent in allow-

ing Hayden to go on patrol without adequate training or

experience. These were matters which were handled by

the police chief, and both occupants of that position during

the time in question thought that Hayden was capable of

doing his job. Steven Saucier, the mayor during this pe-

riod, testified at trial, “Not that I know of,” when asked,

“Had Mr. Hayden had any formal weapons training that

you know of prior to December 2, 19741” Saucier also

testified that he did not know what experience Hayden had

shooting a .357 Magnum pistol or what Hayden learned in

this law enforcement education course at the junior college.

Under the evidence here, this testimony is insufficient to

support a finding that the members of the City’s governing

body were themselves grossly negligent, or consciously in-

different to the welfare of the citizens, in failing to pre-

App. 27

vent Hayden from going on patrol without further train-

ing. There is no evidence that they knew or believed he

was likely incapable of doing the job, or that they had

compelling cause or occasion to question the judgment of

the chief or acting chief.

ty

—

CONCLUSION

Certainly, there is evidence from which the jury could

reasonably conclude that Hayden was grossly negligent

on the occasion in question and, arguably, that the City

police chief was grossly negligent in sending Hayden on

patrol without additional training. However, because there

was no evidence that the City police force in general was

inadequately skilled or experienced, that there had been

any other actual or claimed incidents of police misconduct

or negligence, that the City had any general policy or cus-

tom of sending unskilled or inexperienced officers on pa-

trol, or that the members of the City’s governing body

were themselves grossly negligent in failing to prevent

Hayden’s going on patro) without additional training, we

hold that there has been an insufficient showing to author-

ize imposition of section 1983 liability on the City itself.

We accordingly reverse the judgment below against the

City.

REVERSED.

GOLDBERG, Circuit Judge, specially concurring.

I concur in the result.

App. 28

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-4329

JOHN LANGUIRAND,

Plaintiff -Apvellee

Cross-Appellant,

versus

JOHN HAYDEN, An Individual,

Defendant,

CITY OF PASS CHRISTIAN, Ete.,

Defendant-Appellant

Cross-Appellee.

Appeals from the United States District Court

for the Southern District of Mississippi

ON SUGGESTION FOR REHEARING EN BANC

(Filed November 30, 1983)

(Opinion 10/17/83, 5 Cir., 198, — F.2d —)

(November 30, 1983)

Before GOLDBERG, WILLIAMS and GARWOOD, Cir-

cuit Judges.

App. 29

PER CURTAM:

(X) Treating the suggestion for rehearing en banc as

a petition for panel rehearing, it is ordered that the pe-

tition for panel rehearing is DENIED. No member of the

panel nor Judge in regular active service of this Court

having requested that the Court be polled on rehearing

en banc (Federal Rules of Appellate Procedure and Local

Rule 35), the suggestion for Rehearing En Banc is DE-

NIED.

( ) Treating the suggestion for rehearing en banc as

a petition for panel rehearing, the petition for panel re-

hearing is DENIED. The judges in regular active service

of this Court having been polled at the request of one of

said judges and a majority of said judges not having voted

in favor of it (Federal Rules of Appellate Procedure and

Local Rule 35), the suggestion for Rehearing En Banc

is DENIED.

ENTERED FOR THE COURT:

CLERK’S NOTE: SEE FRAP AND

LOCAL RULES 41 FOR STAY OF

THE MANDATE

/s/ Wu. Garwoop

United States Circuit Judge

REHG-8

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