Amicus Brief — Oklahoma City v. Tuttle

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Text

No. 83-1919

Court,

FILED

DEC 15 1984

Abbuteg: - stevas.

CLERK

IN THE

Supreme Court of the Unite

OCTOBER TERM, 1984

— oo

THE CITY OF OKLAHOMA CITY,

Petitioner,

—_V—

ROSE MARIE TUTTLE,

Respondent.

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES UNION

OF OKLAHOMA FOUNDATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

BURT NEUBORNE

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

DON ED PAYNE

American Civil Liberties

Union of Oklahoma Foundation

P. O. Box 785

Hugo, Oklahoma 74743

(405) 326-6453

December 15, 1984

TABLE OF CONTENTS

Pages

INTEREST OF AMICI CURIAE..- cescccsvesvsvvveel

INTRODUCTION AND SUMMARY OF ARGUMENT....6+++2

DRG ccc cose cececocceceeoeeococoscesoeseeoee®s

II.

A Municipality May Be Found Liable

Under 42 U.S.C. § 1983 For

Constitutional Violations

Caused By The Municipality's

Custom of Providing Inadequate

Training And Supervision of’

Its Police FOrCe.cccscccsccsccecessseeed

A. A Plaintiff Need Not Prove a

Pattern of Prior Similar

Frere TT TT TTTrrrrrrrirrt |

B. Municipal Liability in This

Case Will Not Lead to

Strict Liability Against

MUNICiIPAlLICiCS...cceeseeeeseessseldl

A Rule Barring Municipal Liability

For Inadequate Training and

Supervision Resulting in a

Single Incident of Official

Misconduct Would Eviscerate

The Compensatory and Deterrent

Goals of 42 U.S.C. § 19B3. ce eeeeeeeee dl

A. The Legislative History of

§ 1983 Evinces Congressional

Intent to Impose Liability on

Municipalities Not Only for

Affirmative Harms, But Also

for Failure to Act to Protect

the Constitutional Rights of

CIitizenS.ccccccccccccccsccceseseeds

B. The Compensatory and Deterrent

Functions of § 1983 Require

Municipal Liability Under the

Circumstances of this Case.......35

Ce A Municipality Is In The Best

Position To Evaluate The Costs

and Benefits of Additional

Police Training and

SUPETVISION. .cerececeveseseseseee4d

CONCLUB ICH. ccoccccccceeceeeecesseeeeseneeeen

- ii -

TABLE OF AUTHORITIES

Cases

Adickes v. S.H. Kress & CO.,

Ph. BEE BEBE Rccccccscecceds 6, 13, 14

Atlantic & Gulf Stevedores, Inc.

vy. Ellerman Lines, Ltd.,

369 U.S. 355 PPEebeecceeeeeoecccccvceee se

Avery v. County of Burke,

660 F.2d 11ll (4th Cir. 1981l).cceeeeeeeeee 29

Baker v. McCollan,

443 Vee DT MEMEO) ccccccccccesccccccceese

Batista v. Rodriguez,

702 F.2d 393 (2d = 0 ee

Bennett v. City of Slidell,

728 F.2d 762 (5th Cir.) (en banc),

petition for reh'g denied per

Curiam, 735 F.2d 863 (5th Cir.

(en banc), petition for

cert. filed, 53 U.S.L.W. 3419

(U.S. Sept. 14, D——iveiweceeecoscoce Ss 42

Berry v. McLemore,

670 F.2d 30 (5th Cir. Pe sc eeegeeeeoe OO

Bivens v. Six Unknown Named

ents of Federal Bureau of

Reece; ZO3 U.S. 308 (197 l)cccccccceee38

Black v. Stephens,

662 F.2d 181 (3d Cir. 1981),

cert. denied,

455 Oe We 1008 SEMEED ccccoceeccecccsceoesas

- {ii -

Bose Corp. v. Consumers Union,

80 L. Ed. 2d 502 Tums é 66 66666600 606000666 68

Butz v. Economou,

438 U.S. 478 otc, ) RPT rreriricirT tt

Carey v. Piphus,

ESS UeBc 247 ClIDTE) cccccceccccsece see 3,

Carlson v. Green,

446 Ge We 14 Ew) 6 66606006066060668046606068

Continental Oil Co. v. Union

Carbide & Carbon Corp.,

370 Ue We 690 PEweeeceeteectocececeosoeveseee

Doe v. New York City Department

of Social Services,

709 F.2d 782 (2d Cir.),

cert. denied,

EOS Be Coe SED CIDSS) cccceccececcseoceceeeae

Estelle v. Gamble,

429 U.S. 97 Ph. dn enue 6b ee66s 268600806008

Gilmere v. City of Atlanta,

737 F.2d 894 (llth Cir. 1984)... 00022229

Hahn v. Atlantic Richfield Co.,

625 F.2d 1095 (3d Cir. 1980),

cert. denied,

GSO UcSe SEL CASBA) cccccccccceseceseseesese

Hardeman v. Clark,

593 F. Supp. 1285 (0.DB.C. SOeGhecccosesece™

Harlow v. Fitzgerald,

457 U.S. 800 Pewee bcoccceceesomeesecuawe 44

o ty

Hays v. Jefferson County,

668 F.2d 869 (6th Cir.),

cert. denied,

459 i PF 833 S| errr erryrr. ere ree. 29

Herrera v. Valentine,

653 F.2d 1220 (8th Cir. 1981)..++++4--8, 20

Hill v. Marinelli,

555 F. Supp. 413 (N.D. Ill. 1982)..++++-+-8

Imbler v. Pachtman,

424 U.S. 409 TESTS) cccccbcccccccesce ce 44

Independence Tube Corp. V.

Copperweld Corp.,

691 F.2d 310 (7th Cir. 1982),

rev'd, 81 L.Ed. 2d 628 (1984)\..eeeeeee22y 24

Iskander v. Village of

Forest Park,

690 F.2d 126 (7th Cir. BOGS) cc cccecancvceset

Languirand v. Hayden,

717 F.20q 220 (5th Cir. 1983),

cert. denied,

104 S. CEe 2656 CROOK). cocceccecveceseenses

Lavender v. Kurn,

327 U.S. BES (2946) cccccccccsccccscccsesste

Leite v. City of Providence,

463 F. Supp. 585 (D.R.I. BOTS dccccccceDs BP

Lenard v. Argento,

cert. denied,

104 S. 69 (19OB) ccccccccccsocececescend

Littlefield v. Deland,

641 F.2d 729 (LOth Cir. 1981) seeeeeeeeeee eB

Loehr v. Offshore Logistics, ,Inc.,

691 F.2d 758 (5th Gale Lio rary:

Lombard v. Louisiana,

373 U.S. 267 Pee 66006666000066060666088

Los Angeles v. Lyons,

75 L.Ed. 2d 675 PEwOS cccceseeccoeseonseveSs

Marbury v. Madison,

1 Cranch 137 Th seeneeeeeeoesoo0eeseeee

Monell v. Department of

Social Services,

436 U.S. 658 (1978) .ccceeecceceevees epassim

Monell v. Department of

Social Services,

532 F.2d 259 (2d Cir. 1976),

rev'd, 436 U.S. 658 (1978) ..cceeeeeeeveesesD

Monroe v. Pape,

365 U.S. 167 CAGGLd cccccccceccesceSs 32, 33

Nashville, Chattanooga & St. Louis

Railway Co. v. Browning,

310 U.S. 362 It eteeenegeeeeeececeeceees

New York Central & Hudson

River Railroad Co. v. Fraloff,

100 U.S. 24, 25 LeBdG. 531 (1879) .cceeeeee 24

Neng ott v. Fact Concerts, Inc.,

4 Se We 247 TT i166 ces ee ee 06 17, 40, 43

Nunez v. Su erior Oil Co.,

572 F.2d 1119 (5th Cir. 1978),

aff'd following remand,

644 F.2d 534 (5th Cir. 198l)..cceceeeveeee 24

ee A ELLE LE OLLIE P| LILLE LLL SEES PLO LADS

PO PFT

Owen v. City of Independence,

445 U.S. 622 19 eer er TTT

Owens v. Haas,

601 F.2d0 1242 (2d Cir.),

cert. denied,

444 U.S. 980 (1979) cccceccccceceeeedy 9, 29

Parratt v. Taylor,

451 U.S. 527 (1L9B1) ecccccccccccvecscceeee 28

Peterman v. Chicago, Rhode Island

& Pacific Railroad Co.,

516 F.2d 328 (8th Cir.),

cert. denied,

423 U.S. 869 (1975) cccccccccccccccsesceee ad

Pierson v. Ray,

386 U.S. 547 (1967) cccccccccccccecsccceee dl

Polk County Vv. Dodson,

454 U.S. 312 T1981) cccccccccccccccssecsese®

Popow v. City of Margate,

476 F. Supp. 1237 (D.N.J. WWMicccccsessees

Powe Vv. city of Chicago,

664 F.2d th Cale SOGAs . pcecsecoeeeean

Pullman-Standard v. Swint,

456 U.S. 273 (1982) cccceccccccccccessseee ts

Rizzo v. Goode,

423 U.S. 362 (1976) ecccecccceeeeel dy 16, 48

Robertson v. Wegmann,

436 U.S. 584 (1978) wccceccccceeee dy 37, 40

Rogers Vv. Lodge,

458 U.S. 613 (1982) eccvececcvcccccccceeeee!

- vii -

Samuels v. Health &

Hospitals Corp.,

591 F.2d 195 (2d Cite SOTO) occcceeseeeeeees

Smith v. Wade,

75 L. Ed. 2d 632 C1GBD) cccccesocdesesooecesse

Thurman v. City of Torrington,

53 U.S.L.W. 2246

(D. Conn. Oct. 23, BOGS C.cdessvrdoeedseesenee™

Turpin v. Mailet,

619 F.2d 196 (2d Cir.),

cert. denied,

449 U.S. 1016 (1980). .cccccccccceeds 20, 29

Tuttle v. City of Oklahoma City,

728 F.2d 456 (10th Cir. 1984),

cert. granted, 53 U.S.L.W. 3235

(0.8. Get. Le 19SE)cccccccccccccccccesseee®

United States v. Johnson,

— —_——_—_——

457 U.S. 53 C0 rr rrrrrrrr rrr yy

United States v. United

States Co.,s

333 U.S. 64 l is éesceeeocoocesesetoseus

Village of Arlington Heights

v. Metropolitan Housing

Development Corp.,

429 U.S. 252 (1977) .cccccecccesecscvvececel

Washington v. Davis,

426 U.S. 229 Tre 0 5066606660600006060866807

- viii -

Oe Net 4 SE Oe

Webster v. City of Houston,

689 F.2d 1220 (5th Cir. 1982),

petition for reh'g

en banc granted,

711 F.2d 35

(Sth Cir. 1983),

vacated and remanded

er curiam,

735 F.2d 838 (5th Cir.)

(en banc),

aff'd in part, rev'd

in part, and remanded

per curiam, 739 F.2d 993

(Sth Cir. 1984)

(on petition for

en banc rehearing)...++seeee++6, 10, 12, 42

Wellington v. Daniels,

FIT F.2d 932 (4th Cir. 1983)..eeeeeeeil, 29

Statutes

Act of April 20, 1871,

Ch. 22, 17 Stat. 13 (1871)

(now codified as 42 U.S.C. § L9B3) ccccosese

18 8.8-G. § te. ts deeeawes neds eesesaeeeee

18 0.8.Ce. BZ We ccccccccccccvcsesccossesveeSs

18 S..GeGe § OO. ie erene Geen eedeness been

Federal Rules of Civil

Procedure Rule BMalcccocececosesouceeseses

42 8. 8.Ce iS ET ES TS

- ix -

Legislative Material

Congressional Globe,

42d Cong., Ist Sess. (1871)......33, 34, 35

Congressional Globe Appendix,

42d Cong., Ist Sess. (1871)... ee0024+34, 35

Other Authorities

G. Calabresi, The Costs of

Accidents Nt

Calabresi & Hirschoff, Toward a

Test for Strict any in

Tort, 81 Yale a - PPrTrTrrere ri.

Developments, Section 1983 and

Federalism, 90 Harv. L. Rev.

rT TTT ree TTT TTTTTTTTTreee |

5A Moore's Federal Practice

q 50.07[2] CA Sr re TTT TT TTTTTTrTT. |

J.O. Newman, Suing the Lawbreakers:

Proposals to Strengthen the

Section 1983 Damages Remedy for

Law Enforcers' Misconduct,

67 Yale L.J. seeocecccececeST, O86

Note, Municipal Liability Under

Section 1983: The Meaning

an:

of “Policy or Custom

79 Colum. L. Rev. 304° (1979) .ccccccceceee3S

Posner, Excessive Sanctions for

Governmental Misconduct in

Criminal Cases,

57 Wash. L. Rev. 635 (1982). .ccccccccccec4?

_——_--

o> ene

Posner, Rethinking the

Fourth Amendment,

1981 Be oe Rev. i nnd dpe’ © oe Oden

Schnapper, Civil Rights Litigation

After Monell,

79 Colum. Le Rev. 213 (1979) ceeeeeeee ee ee 4D

P. Schuck, Suing Government

CROSD) cccccceeeessceccesecoccoecece co SOs 48

9 Wright & Miller, Federal

Practice & Procedure § 2558

(1971 & Supp. Diino nee ebeeeeeeeeeeeoesne

- xi-

INTEREST OF AMICI CURIAE

The American Civil Liberties Union is a

nationwide, nonpartisan organization of more

than 250,000 persons, dedicated to preserving

and protecting the civil rights and civil

liberties guaranteed by law. The American

Civil Liberties Union of Oklahoma Foundation

is one of its state affiliates.

The American Civil Liberties Union has

long worked to defend basic constitutional

rights, and in so doing, has in recent years

filed briefs, as counsel for a party or as

amicus curiae, in many cases that required

construction of the statute, 42 U.S.C.

§ 1983, at issue in this case. With the

consent of the parties, indicated by letters

we have lodged with the Clerk of this Court,

we file this brief amici curiae to bring our

experience to bear on the important questions

presented by this case.

INTRODUCTION AND SUMMARY OF ARGUMENT

It is well-settled that a municipality

may be liable under 42 U.S.C. § 1983 for

federal constitutional violations caused by a

formal, written municipal policy or by

decisions of policymaking officials. It is

equally well-settled that a municipality may

not be liable under § 1983 on a respondeat

Superior theory. This case presents the

intermediate issue of whether a municipality

may be liable under § 1983 when a properly

charged jury finds, upon reviewing extensive

evidence, that a municipal custom of patently

inadequate training and supervision of the

police force caused the death of plaintiff's

husband. Oklahoma City's custom consisted of

police training and supervision so grossly

negligent or reckless as to amount to

deliberate indifference to the likely

consequences: constitutional violations and

fatal injuries.

In its simplest form, this case concerns

whether the shooting of Mr. Tuttle may be

fairly traceable to the city rather than to a

street-level police officer. Amici curiae

maintain that the presence of a city custom

of grossly negligent training and supervision

provides the necessary causal link between

the city and the constitutional violation.

A plaintiff alleging a constitutional

violation caused by a municipal policy or

custom need not prove a pattern of similar

prior incidents. This Court has already

directly held that a § 1983 plaintiff may

prove a custom absent evidence of a pattern

of similar prior incidents. See Adickes v.

S.H. Kress & Co., 398 U.S. 144, 173 (1970).

A § 1983 plaintiff can prove that a "policy

or custom" caused an injury without having

simultaneously to try a handful of police

brutality cases concerning similar

incidents. Nor need many citizens of a city

be shot to death by rookie police officers

who had received grossly negligent training

and supervision before the survivors of one

victim may hold the city liable for damages.

ARGUMENT

I. A Municipality May Be Found Liable Under

42 U.S.C. § 1983 For Constitutional

Violations Caused By The Municipality's

Custom of Providing Inadequate Training

And Supervision of Its Police Porce.

In Monell v. Department of Social

Services, 436 U.S. 658 (1978), this Court

reversed its earlier holding in Monroe v.

Pape, 365 U.S. 167 (1961), and held that

municipalities could be liable under 42

U.S.C. § 1983. While Monell clearly required

a § 1983 plaintiff alleging municipal

liability to prove that a municipal policy or

custom violated plaintiff's federal rights

and caused an injury, 436 U.S. at 691, Monell

not defined the quantum and nature of proof

necessary to prove a policy or custom based

on a failure to act; nor has the Court

defined the requisite causal nexus between a

municipality's “policy or custom" and

plaintiff's injury, beyond holding that a

policy or custom must be "the moving force"

behind the constitutional violation. Polk

County v. Dodson, 454 U.S. 312, 326 (1981).

did not trace the "full contours of municipal

liability under § 1983." Id. at 695. Monell

and subsequent decisions of this Court have

A. A Plaintiff Need Not Prove a

Pattern of Prior Similar

Violations.

A municipal policy or custom may take

many forms and therefore can be established

by different types of proof. A policy may be

formal and written.' It may be a decision

adopted and promulgated by the municipality's

policymakers.? A custom may be found even

' B.g., Monell, 436 U.S. at 694-95; Monell v.

Department of Social Services, 532 F.2d 259, 260 (2d

Cir. 1976) (challenge to “rules and regulations” of

city agencies).

2 E.g., Newport v. Fact Concerts, Inc., 453 U.S. 247,

251-52 (1981); Owen v. City of Independence, 445 U.S.

{[cont'd. on next pg)

though the custom had not received formal

approval through the municipality's official

decisionmaking channels. A custom is formed

by the well-established, routine behavior of

municipal employees or officials who act with

the tacit approval of municipal

policymakers.4

No municipality today would openly adopt

a policy authorizing its police officers to

use unconstitutionally excessive force

against persons. Even those police

departments and officials that might still

condone or encourage violent police

misconduct have become sufficiently sensitive

to the operation of our judicial system that

622, 625-30 (1980).

3 Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68

(1970); see Monell, 436 U.S. at 690-91.

4 Webster v. City of Houston, 735 F.2d 838, 841 (5th

Cir.) (en banc) (per curiam) (defining municipal

"custom" for § 1983 purposes), aff'd in part, rev'd in

part, and remanded per curiam, 739 F.2d 993 (5th Cir.

1984) (on petition for en banc reh'g).

they do not openly advocate such behavior.

Given that no formal policy will exist in

such circumstances, liability will hinge on

the existence of an unofficial, and more

difficult to prove, custom.> Thus, proof

that a municipal custom of malign neglect

caused a constitutional violation will almost

always depend on indirect, circumstantial

evidence.® Many lower courts have therefore

adopted a flexible approach to the problem of

proof in such cases. These courts generally

permit an inference that a municipal custom

caused plaintiff's injury based on either

5 while “custom” and "causation" are theoretically

distinct elements of municipal liability, proof of

these elements in “failure to train" cases often

involves similar evidence, including police department

screening, hiring, and training of new officers, and

the supervision and discipline of field officers.

6 This Court has often adverted to the value of

evidence of effect as an indirect means of proving

unlawful purpose. See, e.g., Rogers v. Lodge, 458

U.S. 613, 618 (1982); Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252,

265-66 (1977); Washington v. Davis, 426 U.S. 229, 242

(1976).

(1) municipal inaction in the face of a

pattern of prior, similar incidents,’ or

(2) a single injurious incident plus evidence

warranting a jury finding that deliberate

indifference to adequate hiring, training, or

Supervision of the police force caused the

injury.® The present action falls into the

7 E.g., Batista v. Rodriguez, 702 F.2d 393, 397 (2d

Cir. 1983) (persistent failure to discipline police

officers who violated civil rights); Powe v. City of

Chicago, 664 F.2d 639, 643, 650-51 (7th Cir. 1981)

(four erroneous arrests of same person based on same

defective warrant); Herrera v. Valentine, 653 F.2d

1220, 1225 (8th Cir. 1981) (city authorities aware of

continuing police misconduct); Littlefield v. Deland,

641 F.2d 729, 732 (10th Cir. 1981) (pattern of

prolonged detentions of mentally disturbed prisoners

in strip cell); Thurman v, City of Torrington, 53

U.S.L.W. 2246 (D. Conn. Oct. 23, 1984) (police

consistently provided less protection for victims

assaulted by husbands or boyfriends).

8 E.g., Hays v. Jefferson County, 668 F.2d 869, 874

(6th Cir.) (municipality may be liable for reckless or

grossly negligent police training), cert. denied, 459

U.S. 833 (1982); Owens v. Haas, 601 F.2d 1242, 1246

(2d Cir.) (county may be liable for beating of

prisoner if failure to train or supervise prison

guards constituted gross negligence or deliberate

indifference to prisoner's constitutional rights),

cert. denied, 444 U.S. 980 (1979); Hardeman v. Clark,

593 F. Supp. 1285, 1287 (D.D.C. 1984) (District of

Columbia may be liable for inadeqate procedures for

police training and reprimand); Hill v. Marinelli, 555

[cont'd. on next pg]

latter category.

Contrary to the city's contention, City

Brief 7-9, this action is not an attempt to

impose a pure form of “single-incident"

liability on Oklahoma City (the city) for an

isolated incident of police brutality with no

link to Oki

a City police department

policy or custom.? Nor is this an attempt to

F. Supp. 413, 416 (N.D. Ill. 1982) (grossly negligent

police training); Popow v. City of Margate, 476 F.

Supp. 1237, 1245-46 (D.N.J. 1979) (city may be liable

where failure to train, supervise or discipline police

officers is reckless or grossly negligent); Leite v.

City of Providence, 463 F. Supp. 585, 590-91 (D.R.I.

1978) (pattern of past police misconduct not required;

city may be liable if training or supervision is so

deficient that misconduct and resulting harm are

almost inevitable).

9 While a single incident itself might be so brutal

and egregious as to permit an inference that the

failure of policymaking officials to take precautions

against such action represented deliberate

indifference to the consequences, e.g., Turpin v.

Mailet, 619 F.2d 196, 202 (2d Cir.), cert. denied, 449

U.S. 1016 (1980); Owens v. Haas, 601 F.2d 1242, 1246-

47 (2d Cir.), cert. denied, 444 U.S. 980 (1979); Leite

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

(D.R.I. 1978), a single incident alone usually wiil

not suffice to establish the requisite degree of

culpability for supervisory inaction upon which to

predicate municipal liability under § 1983. See,

e.g., Bennett v. City of Slidell, 728 F.2d 762, 768

[cont'd. on next pg]

prove a custom through nothing more than the

behavior of street-level police officers,!°

without any evidence concerning departmental

programs. Rather, Tuttle introduced

“extensive evidence" proving the grossly

inadequate training afforded all police

officers in Oklahoma City. Tuttle v. City of

Oklahoma City, 728 F.2d 456, 459-61 (10th

Cir. 1984); Jt. App. 67-71. Tuttle also

showed that the city had a well-established

(5th Cir.) (en banc) (single instance of unequal

enforcement of city building code establishes no city

custom), petition for reh'g denied per curiam, 735

F.2d 863 (Sth Cir. 1984) (en banc), petition for cert.

filed, 53 U.S.L.W. 3419 (U.S. Sept. 14, 1984); Berry

v. McLemore, 670 F.2d 30, 32-33 (5th Cir. 1982)

(isolated decision not to discipline police officer

did not prove city policy or custom). However, the

Court need not address the propriety of single-

incident liability in this case; the evidence here

went far beyond the incident itself.

'0 See webster v. City of Houston, 735 F.2d 838, 842

(Sth Cir.) (en banc) (per curiam) (for city employees'

actions alone to prove a city custom, those actions

must have recurred often), aff'd in part, rev'd in

rt, and remanded r curiam, 739 F.2d 993 (Sth Cir.

1984) (on petition for en banc reh'g) (affirming

judgment of liability against city).

custom of permitting rookie officers to

patrol, and to respond to suspected armed

robberies, alone.''

The fatai shooting of William Tuttle

plus the grossly inadequate training and

supervision of the Oklahoma City police force

provided ample evidence to support the jury's

finding that a city custom caused the

constitutional violation. The few courts

that have rejected the sufficiency of such

evidence, and have instead required proof of

a pattern of similar incidents,'? are simply

" Testimony of Oklahoma City Police Captain Richard

Delaughter, Trial Transcript 198-200, 206.

'2 g.g., Languirand v. Hayden, 717 F.2d 220, 227-28

(5th Cir. 1983), cert. denied, 104 S. Ct. 2656 (1984);

Lenard v. Argento, 699 F.2d 874, 886 (7th Cir.), cert.

denied, 104 S. Ct. 69 (1983); see also Wellington v.

Daniels, 717 F.2d 932, 935-56 (4th Cir. 1983)

("Generally, a failure to supervise gives rise to §

1983 liability ... only in those situations in which

there is a history of widespread abuse.”).

The Fifth Circuit en banc recently qualified its

Languirand holding ‘on which the city's brief relies

heavily, Brief at 11-13), py distinguishing between

"occasional acts of untrained policemen not otherwise

attributed to city policy or custom" (which are not

actionable), and “police recruitment and training that

[cont'd. on next pg)

-» il -

wrong. A pattern of injuries is a

sufficient, but not a necessary predicate for

municipal liability.'? The city's argument

for a “pattern” requirement, see City Brief

17, 22, would arbitrarily restrict plaintiffs

trying to prove the existence of an

unwritten, informal custom to a single method

of proof.

The city's argument finds no support in

this Court's decisions. In Monell, this

Court held that municipalities “may be sued

for constitutional deprivations visited

pursuant to governmental ‘custom’ even though

is itself unconstitutional and injurious," (which is

actionable). Bennett v. City of Slidell, 728 F.2d at

768 n. 3. The Fifth Circuit en banc also recently set

out a general formula for a municipal custom. while

this formula does require "[a] persistent, widespread

practice of city officials or employees," it does not

require a pattern of injurious incidents. See Webster

v. City of Houston, 735 F.2d at 841. A “persistent,

widespread practice” of clearly deficient training

would appear to satisfy the Fifth Circuit's formula

for municipal liability.

See cases cited supra note 7,

» 12 @

such a custom has not received formal

approval through the body's official

decisionmaking channels.... ‘Although not

authorized by written law, such practices of

state officials could well be so permanent

and well settled as to constitute a "custom

or usage” with the force of law.'" 436 U.S.

at 690-91 (quoting Adickes v. S.H. Kress &

Co., 398 U.S. 144, 167-68 (1970)); see

Nashville, Chattanooga & St. Louis Railway

Co. v. Browning, 310 U.S. 362, 369 (1940)

("Settled state practice ... can establish

what is state law.... Deeply embedded

traditional ways of carrying out state policy

«+. are often tougher and truer law than the

dead words of the written text.") (quoted in

Monell, 436 U.S. at 691 n. 56).'4

14 cf, Lombard v. Louisiana, 373 U.S. 267, 273 (1963)

(city may act as authoritatively through its executive

as through its legislative body).

In Adickes, a suit brought under § 1983

for an alleged equal protection violation,

the court concluded that a private

restaurant, acting in concert with local

police officials, had a "custom" of not

serving white persons in the company of black

persons. In so holding, the Court reversed

the Second Circuit, which had affirned a

directed verdict for the restaurant on the

grounds that plaintiff had failed to show

other instances of a refusal to serve white

persons in mixed-race groups. 398 U.S. at

173.'5 Thus, this Court held that the

Adickes plaintiff could prove a “custom"

under § 1983 without having to show a pattern

of past similar abuse.

15 Of course, plaintiff could not have shown at her

1964 trial that the restaurant had a long-standing

policy of serving only the blacks in an integrated

group, because until shortly before that time blacks

could not have obtained service at all. 398 U.S. at

173.

@ 14 -

This Court's ruling in Rizzo v. Goode,

423 U.S. 362 (1976), provides no support for

the city's argument that Tuttle does not have

a valid cause of action against the city

under § 1983, In Rizzo, this Court reversed

a judgment that had provided injunctive

relief against the top officials of the

Philadelphia police department in the wake of

a series of reported incidents of excessive

use of force against city residents.

The Rizzo Court emphasized the absence

from plaintiffs’ proof of any affirmative

link between their injuries and any plan or

poiicy of the city's officials. 423 U.S. at

371. In Monell, this Court explained that

the causal connection missing in Rizzo could

be supplied by proof of a failure to train or

to supervise police officers: “By %ur

decision in Rizzo v. Goode, 423 U.S. 362

(1976), we would appear to have decided that

the mere right to control without any control

e 1§ -

or direction having been exercised and

without any failure to supervise is not

enough to support § 1983 liability.” Monell,

436 U.S. at 694 n. 58 (emphasis added). This

passage implies that either an affirmative

exercise of control or a failure to train or

to supervise could justify municipal

liability.

Beyond the Monell Court's use of Rizzo

in the context of municipal liability, Rizzo

has little precedential value for the present

case. In reversing the Rizzo lower courts,

this Court focused on plaintiffs' lack of

Standing, on a federal court's limited power

to grant the equitable relief sought, and on

related values of federalism. All of these

concerns dissipate where, as here, plaintiff

seeks monetary rather than injunctive

relief,'®

16 In addition, Rizzo concerned official, not

municipal, liability. 423 U.S. at 365 n. 1, 367. In

the pre-Monell world in which this Court decided

(cont'd. on next pg]

@ 16 «

To be sure, a municipality's failure to

act can only constitute deliberate

indifference to constitutional violations if

the municipality knew or had reason to know

that such violations were likely to occur

were preventive measures not taken. But it

does not follow that a municipality can

acquire such knowledge, actual or

constructive, only from a pattern of similar

incidents. The city in effect presses the

astounding proposition that there is but one

way to put a municipality on notice of likely

impending violations. But a municipality may

zzo, municipalities were not liable under § 1983.

“ae seaeha, thie Court has established distinct and

separate standards of liability for municipalities and

municipal officials. Officials may assert the defense

of qualified immunity; municipalities may not. Owen

v. City of Independence, supra. Officials may be

liable for punitive damages; municipalities may not.

t v. Fact Concerts, Inc., supra. The evolution

of divergent schemes of liability for officials and

municipalities, based on legislative history and

public policy, cautions against the broad application

of Rizzo and other official liability decisions in the

present context.

-17-

have notice even absent a pattern of actual

prior incidents. Granted, official inaction

in the face of a pattern of brutal slayings

would be highly probative of tacit approval

of a subordinate's unconstitutional

behavior. But official inaction to improve a

grossly deficient training program that had

not yet resulted in any harm could, under

proper circumstances, also indicate tacit

approval of the constitutional violations

that would likely result. Surely a court

cannot determine as a matter of law in

advance of any factual presentation that no

program of training and supervision could be

so deficient as to support an inference that

policymaking officials were deliberately

indifferent to the inevitable results of

inadequately training or Supervising the

police force.

For instance, suppose a police

department, in full compliance with its

screening and hiring policy, hires a white

police officer with a known record of

convictions for violent crimes and known

racist beliefs. The department gives the new

officer no training or guidance, arms him,

and sends him on patrol alone in a black

neighborhood. He shoots and kills an unarmed

black youth who runs from the officer when

asked for identification. Given such facts,

could this Court say that no reasonable juror

could find that a city custom caused -- was

the “moving force" behind -- a denial of the

victim's constitutional rights?

If the Court agrees that in this

hypothetical “failure to train" case a jury

could find for plaintiff against the

municipality, then the existence of a

municipal custom in the instant case, tn

which plaintiff Tuttle presented extensive

evidence of the city's failure adequately to

train or to supervise its police officers,

o 39 -

becomes a question of fact for the jury,

properly charged, to decide.'’ The district

court's instructions, read as a whole,'®

correctly informed the jury concerning

municipal liability. The court explained

that the city could not be liable on a

respondeat superior basis; that the city

could be liable only if a city policy

proximately caused a constitutional

violation; that a city policy or custom could

cause a deprivation of rights if the jury

17 :

See Iskander v. Village of Forest Park, 690 F.2d

126, 129 (7th Cir. 1982) (whetner police had custom of

strip-searching suspects in semi-public room was

question of fact for jury); Herrera v. Valentine, 653

F.2d at 1224 n. 2 (appellate court may not substitute

its judgment for that of the jury concerning ultimate

finding of municipal liability). But see Turpin v.

Mailet, 619 F.2d at 203 (reversing jury verdict

against city in “failure to discipline" case).

18 The city's misleading quotation, Brief at 8-9, of

less than a single sentence of the district court's

lengthy instructions, Jt. App. 25-54, flouts the

fundamental rule of appellate review that jury

instructions are to be evaluated as a whole. See 9

Wright & Miller, Federal Practice «& Procedure § 2558,

at 668 (1971 & Supp. 1984).

found that the city implicitly or tacitly

authorized, sanctioned, ratified, or

acquiesced in the deprivation; and that the

existence of a policy could be inferred from

the acts or omissions of supervisory

officials if those omissions amounted to

deliberate indifference to constitutional

rights or tacit approval of constitutional

violations.'?

The jury decided for Tuttle. Given that

the district court's instructions accurately

portrayed the controlling law and that the

record contained ample evidence to support

the verdict, the district court properly

denied the city's motions for a directed

verdict and for a judgment notwithstanding

the verdict.29 Appellate review of a

19 whe opinion below quoted the relevant portions of

the district court's instructions. 728 F.2d at 460;

Jt. App. 68-69. The full instructions are reprinted

at Jt. App. 25-54.

20 cf. Doe v. New York City Department of Social

Services, 709 F.2d 782, 791-92 (2d Cir.) (reversing

[cont'’d. on next pg]

» 9) @

district court's denial of a motion for

judgment notwithstanding the verdict is

severely limited. Reviewing courts must view

the evidence in the light most favorable to

the party that prevailed before the jury,

giving the benefit of all favorable

inferences to that party. See, e.g.,

Continental Ore Co. v. Union Carbide & Carbon

Corp., 370 U.S. 690, 696-97 & n. 6 (1962);

Atlantic & Gulf Stevedores, Inc. v. Ellerman

Lines, Ltd., 369 U.S. 355, 358-59 (1962);

Lavender v. Kurn, 327 U.S. 645, 652-53

(1946); 5A Moore's Federal Practice

4 50.07[2], at 50-79 to 50-84 (1984).2!

district court's grant of judgment n.o.v. to

defendant, the city's child placement agency, because

there was more than sufficient evidence of agency's

deliberate indifference in failing to supervise

plaintiff child's placement in foster home where she

had been sexually abused), cert. denied, 104 S. Ct.

195 (1983).

21 see Independence Tube Corp. v. Copperweld Corp.,

691 F.2d 310, 319-20 & n. 14 (7th Cir. 1982), rev'd on

other grounds, 81 L.Ed.2d 628 (1984); Hahn v. Atlantic

[cont'd. on next pg]

@ 22 «

Following bench trials, this Court has

repeatedly invoked Rule 52(a) of the Federal

Rules of Civil Procedure in stating that the

factual findings of district courts sitting

without a jury may be reversed only if

"clearly erroneous." See, e.g., Bose Corp.

v. Consumers Union, 80 L.Ed.2d 502, 515

(1984) (citing cases); Pullman-Standard v.

Swint, 456 U.S. 273, 287-90 (1982); United

States v. United States Gypsum Co., 333 U.S.

364, 394-95 (1948).22 Given the command of

Richfield Co., 625 F.2d 1095, 1099 (3d Cir. 1980),

cert. denied, 450 U.S. 981 (1981); Samuels v. Health &

Hospitals Corp., 591 F.2d 195, 198 (2d Cir. 1979);

Peterman v. Chicago, Rock Island & Pacific Railroad

Co., 516 F.2d 328, 330 (8th Cir.), cert. denied, 423

U.S. 869 (1975).

As the Third Circuit stated in an appeal from a

jury verdict for plaintiffs in another § 1983

municipal liability case, the appellate court should

uphold a jury verdict unless the record is “critically

deficient of that minimum quantum of evidence from

which the jury might reasonably afford relief." Black

v. Stephens, 662 F.2d 181, 187 (3d Cir. 1981) (quoting

cases), cert. denied, 455 U.S. 1008 (1982).

22 The holding in the Bose case that constitutional

considerations in public-figure libel cases require de

novo appellate review in derogation of Rule 52(a)'s

Clear meaning is inapposite here. The city has made

{[cont'd. on next pg)

= 23 «

the Seventh Amendment and the historic role

of the jury, a jury's verdict is entitled to

even greater appellate deference than is a

trial court's findings of fact. See Loehr v.

Of fshore Logistics, Inc., 691 F.2d 758, 760 &

n. 3 (Sth Cir. 1982); Nunez v. Superior Oil

Co., 572 F.2d 1119, 1124 n. 6 (5th Cir.

1978), aff'd following remand, 644 F.2d 534

(Sth Cir. 1981).23 Jury fact-finding,

unlike judicial fact-finding, is not subject

to direct attack as “clearly erroneous.”

Independence Tube Corp. v. Copperweld Corp.,

691 F.2d at 319.

no claim that constitutional (or any other) factors

mandate a departure from normal deference to the

findings of the trier of fact.

23 see also New York Central & Hudson River Railroad

Co. v. Fraloff, 100 U.S. 24, 25 L.Ed. 531, 535 (1879)

("(This Court's] power is restricted by the

Constitution to the determination of the questions of

law arising upon the record. Our authority does not

extend to a re-examination of facts which have been

tried by the jury under instructions correctly

defining the legal rights of parties.") (citing

cases).

- 24 -

The absolute rule advocated by the city

would contravene an essential element of the

scheme of municipal liability under § 1983

that has evolved since Monell. A rule

requiring a pattern of similar incidents to

sustain municipal liability for failure to

act would provide a municipality with a form

of qualified immunity, which this Court

expressly rejected in Owen v. City of

Independence, 445 U.S. 622 (1980). The

city's argument reduces to a claim that a

municipality can be held liable for failing

to take action only in those cases in which

the need for action was clearly necessary to

prevent continued repetition of demonstrated

harms. The city's reading of § 1983 would

insulate a municipality from liability even

if its policymakers had reason to believe

(based on a clearly deficient plan for

training or supervision) that constitutional

- 25 -

violations and grave harm were inevitable

absent ameliorative measures.?4 Despite

Owen, the city would thus grant to municipal

defendants in “failure to train" cases even

greater immunity from § 1983 liability than

this Court has granted to official defendants

in § 1983 actions. This Court's test for the

qualified immunity of government officials

permits a civil damages remedy against

government officials performing discretionary

functions only insofar as their conduct

violates “clearly established ...

constitutional rights of which a reasonable

person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982).25 The

24 ror instance, the city's construction of § 1983

would deny liability even if the city had received an

emergency warning from a national commission

responsible for evaluating police training programs.

25 while Harlow addressed the qualified immunity of

federal officials sued directly under the

Constitution, the Harlow formulation applies as well

in suits against state and local officials under §

1983. See Harlow v,. Fitzgerald, 457 U.S. at 818 n,

30.

e 26 «

city's interpretation of § 1983 would bar

municipal liability under circumstances in

which municipal officials could be found

liable for failure to take action to prevent

inevitable violations of clearly established

constitutional rights.

B. Municipal Liability in This Case

Will Not Lead to Strict Liability

Against Municipalities.

Rejection of the arbitrary “single-

incident" rule proposed by the city would not

result in § 1983 municipal liability for all

wrongs committed by a municipality's police

officers and other employees.

The city's rigid view ignores that a

continuum of culpability extends from strict

liability at one extreme to purposeful

26 intermediate points, in order of increasing

culpability, have in various contexts been termed

negligence, gross negligence, recklessness, and

knowledge.

@ 27

not permit respondeat superior liability

against municipalities. Monell, 436 U.S. at

691. But neither is municipal liability

limited only to instances at the opposite

extreme -- purposeful wrongdoing. This Court

has rejected the view that a § 1983 defendant

may be liable only fer its actions that

purposefully contravene federal rights. See

Parratt v. Taylor, 451 U.S. 527, 534 (1981)

("Nothing in ... § 1983 ... limits the

Statute solely to intentional deprivations of

constitutional rights” or denies liability

for a “wrong ... negligently as opposed to

intentionally committed"); Baker v. McCollan,

443 U.S. 137, 139-40 (1979).

Of course, in the context of municipal

liability for a failure to act, a plaintiff

must show a sufficient degree of actual or

constructive awareness on the part of

municipal policymakers so that a failure to

act can be fairly characterized as the cause

@- 28 -

of the constitutional violation and resulting

harm. Thus, not every failure to train or to

supervise that resulted in harm would justify

liability. Drawing on this Court's cases,

most lower courts have correctly noted that a

municipality's failure to act can be fairly

deemed a custom for § 1983 purposes only if

that failure constitutes gross negligence,

recklessness, or “deliberate indifference” to

a plaintiff's constitutional rights.?’

27 see, e.g., Wellington v. Daniels, 717 F.2d at 936;

Hays v. Jefferson County, 668 F.2d at 871-73; Avery v.

County of Burke, 660 F.2d 111, 114 (4th Cir, 1981);

Turpin v. Mailet, 619 F.2d at 202; Owens v., Haas, 601

F.2d at 1246; Leite v. City of Providence, 463 F.

Supp. at 590-91. But see Gilmere v. City of Atlanta,

737 F.2d 894, 904 (11th Cir. 1984) (holding “gross

negligence” or “deliberate indifference” improper as

test for adjudging due process § 1983 claim against

municipality). The Eleventh Circuit in Gilmere simply

overlooked this Court's construction of 4 1983 in

Monell, where this Court stated that the framers of

the statute intended to create a remedy where state

actors were “deliberately indifferent to the rights of

black citizens." 436 U.S. at 685 n. 45. The

“deliberate indifference” standard finds further

support in Estelle v. Gamble, 429 U.S. 97 (1976), a

§ 1983 suit alleging an Eighth Amendment violation for

inadequate medical care in prison. This Court held

that mere negligent failure to provide proper care did

not state a valid § 1983 cause of action. Instead,

[cont'd. on next pg]

- 29 -

Liability may attach only when the

municipality's failure to train, supervise,

or discipline its employees is so egregious

as to indicate that municipal policymakers

simply did not care about the inevitable

consequences of not taking any corrective

action. Thus, the municipality is not held

liable for the actions of its employees on a

respondeat superior basis. Rather, the

municipality is held liable for its own

actions that proximately cause a deprivation

of constitutional rights. Since municipal

liability for inaction arises only when there

exists highly foreseeable harm resulting from

that inaction, there is little threat that

rejection of the city's theory would lead to

a raid on municipal treasuries for every

misdeed of a police officer. Given that

this Court required the plaintiff to show that the

state officials acted with “deliberate indifference”

to the probable constitutional violation. Id. at 104-

06.

e 36

state and local officials may be liable under

§ 1983 for punitive damages for “reckless or

callous disregard for the plaintiff's

rights,” Smith v. Wade, 75 L.Ed.2d 632, 648

(1983), it would be ironic indeed if this

Court barred municipality liability for mere

compensatory damages where, as here, a jury

had found that the acts or omissions of

municipal policymakers evidenced deliberate

indifference to Tuttle's rights and caused

his death.

II. A Rule Barring Municipal Liability For

Inadequate Training and Supervision

Resulting in a Single Incident of

Official Misconduct Would Eviscerate The

Compensatory and Deterrent Goals of 42

U.S.C. § 1983.

A. The Legislative History of § 1983

Evinces Congressional Intent to

Impose Liability on Municipalities

Not Only for Affirmative Harms, But

Also for Failure to Act to Protect

the Constitutional Rights of

Citizens.

The framers of section one of the Civil

Rights Act of 1971,28% the forerunner of

- 31 -

§ 1983, specifically intended to create a

remedy not only for affirmative denials of

constitutional rights, but also for failures

by government officials to take adequate

measures to protect those rights. “It was

not the unavailability of state remedies but

the failure of certain States to enforce the

laws with an equal hand that furnished the

powerful momentum behind [the Act]." Monroe

v. Pape, 365 U.S. at 174-75. A passive

denial of protection, while perhaps harder to

discern than an illegal atfirmative act,

causes no less harm to the victim. In

canvassing the legislative history of the

Act, this Court stated in Monell that section

one “extended a remedy not only where a State

had passed an unconstitutional statute, but

also where officers of the State were

deliberately indifferent to the rights of

28 act of April 20, 1871, Ch. 22, 17 Stat. 13 (1871).

= 32 «-

ce Oe

black citizens." 436 U.S. at 685 n. 45.29

Representative Hoar stated during the

congressional debate over section one of the

Act that

deniul ... of the protection of the

laws [is not] to provide merely for

the case of an affirmative formal

exercise of power by the State in

derogation of civil rights ... [but

also] when any class of officers

charged under the laws with their

administration permanently and as a

rule refuse to extend that

protection.

Cong. Globe, 42d Cong., lst Sess. 334 (1871)

{hereinafter cited as “Cong. Globe"].

Representative Sheldon, urging that “it is

the highest duty of the government to provide

means to protect and secure every citizen in

29 while the desire to protect black citizens through

enforcement of the Civil War Amendments may have

motivated congressional supporters of section one of

the Civil Rights Act, Congress framed the statute in

general terms, creating a federal cause of action for

the deprivation, under color of state law, “of any

rights ... secured by the Constitution and laws" of

the United States. 42 U.S.C. § 1983; see Monroe v.

Pape, 365 U.S. at 183 ("(A]lthough [§ 1983] was

enacted because of the conditions that existed in the

South at that time, it is cast in general language

coo’ de

e 33 @

undisturbed enjoyment" of his constitutional

rights, said:

It must be apparent that these

amendments enlarge the power of the

Government in controlling the

action of the States and I believe

that it can extend its power,

through its courts, in times of

peace, directly to the individual

who is deprived of his rights, ...

whether through the positive act or

the default of the State

authorities.

Cong. Globe 367-68 (emphasis added).

Representative (later President)

Garfield, in voicing his support for the

bill, explained that the statute would reach

maladministration of the laws as well as

neglect or setusal, te enforce them. Cong.

Globe, 42d Cong., lst Sess. App. 153 (1871)

[hereinafter cited as “Con. Globe App."] ;3°

30 Rep. Garfield stated: "(Bly a systematic

maladministration of [state laws], or a neglect or

refusal to enforce their provisions, a portion of the

people are denied equal protection under then,

Whenever such a state of facts is made out, I believe

the last clause of the first section [of the

Fourteenth Amendment] empowers Congress to step in and

provide for doing justice to those persons who are

thus denied equal protection." Cong. Globe App.

[cont'd. on next pg)

e 34 «