Petition — Languirand v. City of Pass Christian
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83 - FILED |
1407 FEB 10 1904
NO. Ma +.
se
—.
In The
Supreme Court of the United States
October Term, 1983
tt.
Ww
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”.
yee
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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v
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
7 =
ae
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.
\
_—
ww
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).
‘——
. she
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.
tY
=
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.'
a>
ae
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. —
fi
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
— *
~~
(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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8
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.
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es
9
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.
=
, 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
en Oey ee ee
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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. —ebhheee, oe! et
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