# Petition — Languirand v. City of Pass Christian

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1215

## Text

83 - FILED |
1407 FEB 10 1904
NO. Ma +.

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—.

In The
Supreme Court of the United States
October Term, 1983

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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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a Seer ee eo ew Pe ee a

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.
\

_—
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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).

‘——
. 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.'

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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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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 . 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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---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1468%3A1. Public record. Not legal advice.