# Amicus Brief — Oklahoma City v. Tuttle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 808

## 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

I,

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-

oe

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.
7.

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.

13

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

wrongdoing at the other.?© Section 1983 does

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 «

see also Cong. Globe 428 (Rep. Beatty)

(states have denied persons equal protection,
through “lack of power or inclination"); id.
at 459 (Rep. Coburn) (unlawful state action
not always affirmative); Cong. Globe App. 78,
80 (Rep. Perry) (local officials fail to take
action against illegal activity); id. at 147
(Rep. Shanks) ("the civil authorities lie
dumb before the violators of the law"); id.
at 300 (Rep. Stevenson) (denial of equal
protection is more often passive than
active) .3!
B. The Compensatory and Deterrent
Functions of § 1983 Require
Municipal Liability Under the

Circumstances of this Case.

Compensation of the victims of

153. Section one of the Act did not, of course, limit
itself to enforcement of the equal protection clause
of the Fourteenth Amendment. See supra note 29,

3’ see generally Developments, Section 1983 and
Federalism, 90 Harv. L. Rev. 1133, 1141-56 (1977);
Note, Municipal Liability Under Section 1983: The
Meaning of “Policy or Custom," 79 Colum. L. Rev. 304,
307-09 (1979).

e 35 «-

unconstitutional action and deterrence of
like misconduct in the future constitute the

primary goals of § 1983. See Owen v. City of

Independence, 445 U.S. at 651; Robertson v.

Wegmann, 436 U.S. 584, 591 (1978); Carey v.

Piphus, 435 U.S. 247, 256-57 (1978). In

enacting section one of the Civil Rights Act
of 1871, now codified as 42 U.S.C. § 1983,
Congress adopted a specific policy intended
to effect the goals of compensation and
deterrence: Congress made those persons
(including municipalities) who, under color
of state law, violate a person's
constitutional rights liable for injuries
resulting from the violation. Any rule that
would shield a municipality from § 1983
liability for its unconstitutional actions,
regardless of the municipality's deliberate
indifference to the potential harm, the
municipality's causal responsibility, or the

severity of the injury incurred, would

- 36

subvert the compensatory and deterrent
purposes of § 1983, 32

As the Court has emphasized in recent
decisions, municipal liability plays a
critical role in fulfilling the compensatory

purpose of the statute. In Monell, 436 U.S.

at 685 & n. 45, the Court noted that
Statements by supporters of § 1983 indicated
Congress' intention to redress the
unconstitutional misconduct of even
municipalities by making those municipalities
liable for compensatory damages. Later, in

holding that a municipality does not enjoy

32 see 3.0. Newman, Suing the Lawbreakers: Proposals
to Strengthen the Section 1983 Damages Remedy for Law

Enforcers' Misconduct, 87 Yale L.J. 447, 456 (1978)

(goals of compensation and deterrence more frequently
met if defendant is the government, not an
individual); cf. Robertson v. nn, 436 U.S. at 599
(Blackmun, J., dissenting) (objecting to a state
survivorship law that abated a § 1983 claim where
there was obvious unconstitutional misconduct because
"[a]ny crabbed rule of survivorship obviously
interferes directly with the second critical interest
[deterrence] and may well interfere with the first
[compensation] ").

e 37 «

qualified immunity under § 1983 based on the
good-faith actions of its officers, the Court
emphasized that compensatory damages "[are] a
vital component of any scheme for vindicating
cherished constitutional guarantees.” Owen

v. City of Independence, 445 U.S. at 651; see

Carey v. Piphus, 435 at 254-56 (§ 1983

damages should compensate persons for
injuries caused by deprivation of

constitutional rights); cf. Bivens v. Six

Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 397 (1971) (in

action for damages directly under Fourth
Amendment, plaintiff is entitled to

compensation); Butz v. Economou, 438 U.S.

478, 506 (1978) (in Bivens action, damages

can be important means of vindicating

constitutional guarantees). In both Monell

and Owen, the compensatory purpose of § 1983
served as a rationale for refusing to shield

municipalities from § i983 liability.

- 38 -

ee ee OS ee ee

a

The importance of compensation for
constitutional wrongs "is only accentuated
when the wrongdoer is the institution that
has been established to protect the very

rights it has transgressed.” Owen v. City of

Independence, 445 U.S. at 651. Local police

should protect citizens against violent,
lawless behavior, not subject them to it.
When a municipality's willful indifference to
the training or supervision of its police
officers is so substantial as to predictably
cause a deprivation of liberty and life
without due process, albeit in a single
incident, the victim of the municipality's
unconstitutional misconduct should receive
compensation.?2 From the victim's
perspective, there is only one opportunity
for compensation. The city's reading of

§ 1983 would always leave uncompensated at

33 In addition, a municipality is far less likely to
be judgment-proof than is a city police officer.

@ 39 «-

least the first victim of a municipality's
unconstitutional custom.
Deterrence serves, with compensation, as

an essential purpose behind § 1983. Owen v.

City of Independence, 445 U.S. at 651;

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

268 (1981); Robertson v. Wegmann, 436 U.S. at

590-91; Carey v. Piphus, 435 U.S. at 256-57;

Imbler v. Pachtman, 424 U.S. 409, 442 (1976)

(White, J., concurring in the judgment) .34
In explaining the deterrent rationale for
holding that municipalities do not have
qualified immunity under § 1983, the Court in
Owen stated:

The knowledge that a municipality

will be liable for all of its

injurious conduct, whether
committed in good faith or not,

34 See also Carlson v. Green, 446 U.S. 14, 21 & r. 6
(1980) (Bivens remedy has deterrent as well as
compensatory purpose, and § 1983 serves similar
purposes). The legislative history of § 1983 contains
numerous references to the intended deterrent effect
of the statute. Se_ Schnapper, Ci

Litigation After Monell, 79 Colum. L. Rev. 213, 244-45
& n. 174 (1979) (quoting seven Congressmen).

o @ «

should create an incentive for
officials who may harbor doubts
about the lawfulness of their
intended actions to err on the side
of protecting citizens’
constitutional rights.

Furthermore, the threat that
damages might be levied against the
city may encourage those in a
policymaking position to institute
internal rules and programs
designed to minimize the likelihood
of unintentional infringements on
constitutional rights. Such
procedures are particularly
beneficial in preventing those
‘systemic’ injuries that result not
so much from the conduct of any
single individual, but from the
interactive behavior of several
government officials, each of whom
may be acting in good faith.

Owen v. City of Independence, 445 U.S. at

651-52 (footnotes and citation omitted). Cf.

United States v. Johnson, 457 U.S. 537, 561

(1982) (retroactive application of decision
upholding Fourth Amendment claim gives
government incentive to err on side of
constitutional behavior). Where, as here, a
city gives its police officers negligible
training in responding to armed robbery

situations and routinely permits rookie

- 6] -

policemen to patrol (and to respond to armed
robberies) alone, city officials should not
be surprised when the unthinkable becomes
inevitable: an unarmed man?> is shot in the
back in a dark parking lot while walking away
from a drinking club where no robbery had
occurred. Such an injury reflects a
“systemic” failure of the kind that, as the
Owen Court realized, could be eliminated by

providing proper incentives to relevant

35 The record imiicates that Mr. Tuttle was unarmed at
the time that Officer Rotramel fired the fatal shot.
Rotramel admitted that he never saw any weapon. Jt.
App. 158. Officer Lennox, who arrived at the scene
soon after the shooting, searched and found nothing in
Tuttle's boot. Id. 259-60. From the time of the
shooting until Tuttle's arrival at the hospital, the
police had Tuttle under their continuous and exclusive
control. The police denied Mrs. Tuttle, who had
arrived at the scene, access to her dying husband.
Trial Transcript 231-32. Only after Mr. Tuttle had
arrived at the hospital did a toy pistol appear in his
boot. The sequence of events is, to say the least,

suspicious. Cf. Webster v. City of Houston, 689 F.2d
1220 (Sth Cir. 1982) (detailing police use of “throw-
down" weapons), i or .

711 F.2d 35 (Sth Cir. 1983), r
curiam, 735 F.2d 838 (5th Cir.),

vacated and remanded per
aces sn pars rev'd
t r curiam, 739 F.2d 993 (5th

Cir. 1984) (on petition for en banc rehearing).

= 62 -

}

municipal decisionmakers. When the
possibility of liability would provide
municipalities with an incentive to reduce
the likelihood of this type of injury, any
categorical bar against municipal liability
would erode the basic purposes of § 1983.
The deterrent role of a § 1983 damages
remedy in cases such as this has no current

substitute. Los Angeles v. Lyons, 75 L.Ed. 2d

675 (1983), effectively precludes injunctive
relief under § 1983 against unconstitutional
police practices. Federal criminal
prosecutions for violations of federal civil
rights®® are only sporadically used, cannot
be privately enforced, and require a heavier
burden of proof than that required in a civil
actior Further, a municipality is free from
the spectre of punitive damages for its

constitutional violations. Newport v. Fact

Concerts, Inc., Supra.

36 B.g., 18 U.S.C. §§ 241, 242, & 245.

@ 63 -

Moreover, given that defendant officials
will often enjoy either absolute?’ or
qualified?® immunity from § 1983 liability,
to deny municipal liability for an entire
class of cases will leave victims without
compensation and will provide no incentive to
potential defendants to minimize

unconstitutional behavior. Cf. Marbury v.

Madison, 1 Cranch 137, 163 (1803) ("The very
essence of civil liberty certain consists in
the right of every individual to claim the
protection of the laws, whenever he receives
an injury. One of the first duties of

government is to afford that protection.").

5
E.g., ler_y 424 U.S. 409 (1976)
prosecutors); Pierson v. Ray, 386 U.S. 547 (1
(judges). reise
38

E.g., Harlow v rald, 457 U.S. 800 (1982)

(broadening “good-faith” immunity by allowing
defendants to satisfy only an objective standard).

- 44 -

c. A Municipality Is In The Best
Position To Evaluate The Costs and
Benefits of Additional Police
Training and Supervision.

The § 1983 damages remedy is based in
part on the theory of deterrence, which
presupposes rational decisionmakers taking
only those actions where benefits exceed
costs. A damages remedy performs a deterrent
function by forcing a party to consider the
costs of certain action or inaction that
would otherwise have been borne by some other

party. Thus, damages serve to “internalize”

costs to the decisionmaker. See generally G.

Calabresi, The Costs of Accidents 68-129

(1970).

Under this view of deterrence, liability
should be placed on the party best able to
determine the true costs and benefits of a
given course of action and to effect a change

in behavior based on that determination. 2?

39 see Calabresi & Hirschoff, Toward a Test for Strict
Liability in Tort, 81 Yale L.J. 1055, 1060 (1972).

Common sense suggests that municipal police
departments are more adept than individual
police officers at identifying and evaluating
"different strategies for deterring illegal
[conduct] and can also better predict the
likely effects of alternative deployments of
police officers, training methods, or
[behavioral] guidelines upon both deterrence
and vigorous decisionmaking.” P. Schuck,

Suing Government 104 (1983) (footnote

omitted). Judge Newman has noted more
generally that municipal liability
"“enhance([s) the prospects for deterrence by
placing responsibility for the denial of
constitutional rights on the entity with the
capacity to take vigorous action to avoid
recurrence." J.O. Newman, supra note 32, at
457. The threat of liability “gives the
{municipality] an incentive to minimize the
‘good faith’ unconstitutional errors of its

police through more careful selection,

@- @6 -

training, and supervision." Posner,

Rethinking the Fourth Amendment, 1981 S. Ct.

Rev. 49, 68; see also Posner, Excessive

Sanctions for Governmental Misconduct in

Criminal Cases, 57 Wash. L. Rev. 635, 641

(1982).

Had Oklahoma City assumed that it could
be liable for the unconstitutional behavior
of its police officers, it could have
determined the likely cost and efficacy of:
giving police trainees additional instruction
in how to respond to suspected armed robbery
Situations and how to apprehend a fleeing
suspect; prohibiting rookie officers from
patrolling alone; and ordering rookies or all
officers to request backup units in the type
of situation that Officer Rotramel
confronted.

A damages remedy, unlike an injunctive
remedy, permits the municipality, rather than.

a judge, to choose the optimal mix between

e 47 «

!

street-level discretion, which may increase
the cost of adverse verdicts,‘ and
additional preventive measures.*' A damages
remedy thus provides general deterrence
against constitutional violations while
respecting the values of federalism that
favor the decisionmaking independence of

local officials. Cf. Rizzo v. Goode, 423

U.S. 362 (1976).

40 win or lose, a municipality often incurs litigation
expenses to defend itself or its officers following an
incident of police brutality. These expenses must be
added to the cost of adverse verdicts to determine the
actual cost of not taking preventive measures.

41 ay rigorous empirical study of the effect of a New
York City police department rule restricting officers’
use of weapons found a decline in the use of deadly
force without any effect on the incidence of crime,
injuries to officers, or arrest activity." P. Schuck,
supra page 46, at 144 (citing J. Fyfe, Shots Fired:
An Examination of New York City Police Firearms
Discharges (Univ. Microfilms Int'l 1978)).

- 48 -

CONCLUS ION

Monell's holding that a municipality may

be liable under § 1983 only if a municipal
policy or custom caused a constitutional
violation does not justify an arbitrary rule
that gives municipalities at least one "free"
constitutional violation by barring municipal
liability except in cases in which an injured
victim could prove a pattern of similar past
abuses. Neither the legislative history and
purpose of § 1983, this Court's decisions
construing that statute, nor considerations
of public policy support the city's crabbed
reading of the statute.

For the foregoing reasons, the judgment

of the United States Court of Appeals for the

- 49 -

Tenth Circuit should be affirmed.

Respectfully submitted,

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

December 15, 1984

* Counsel gratefully acknowledge the
assistance of Carl H. Loewenson, Jr., a law
school graduate whose application for
admission to the New York State Bar is
pending.

—' we

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0777%3A8. Public record. Not legal advice.