Petition for Writ of Certiorari — Town of Saugus v. Voutour
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CORRECTED COPY |, Supreme Court, U.S.
pin FILED
85-210 AUG 6 1985
No.
JOSEPH F. SPANIOL, JR.
In th _——
n e e
Supreme Court of the United States.
OCTOBER TERM, 1985
TOWN OF SAUGUS AND FRED FORNI,
PETITIONERS,
¥.
JAMES T. VOUTOUR,
RESPONDENT.
| ON PETITION FOR WRIT OF CERTIORARI TO REVIEW A
JUDGMENT OF THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT.
Petition.
GAEL MAHONY,
MICHAEL S. GRECO,
ROBERT G. DREHER,
HILL & BARLOw,
225 Franklin Street,
Boston, Massachusetts 02110. ‘
(617) 423-6200
BATEMAN & SLADE, INC BOSTON
Questions Presented for Review.
I. May a municipality and its supervisory officiais be held liable
under § 1983 for alleged deficiencies in the training provided to the
municipality's police in the absence of any policy or custom on the
part of the municipality, or any act on the fart of its supervisory
officials, which is itself unconstitutional?
II. Can alleged deficiencies in the training of a municipality's
police officers render a municipality and its Chief of Police liable
under § 1983 for injuries received by a plaintiff through the alleged
use of excessive force by a police officer in shooting the plaintiff,
where the municipality and its Chief of Police promulgated and
strictly enforced a written policy governing the use of firearms by
police officers which fully complied with constitutional require-
ments, and where the Court of Appeals has affirmed the finding of
the District Court that “[p]laintiff has adduced no evidence to show
a pattern of violent police behavior which might support an inference
that the Chief of Police supported or acquiesced in such behavior”
and has affirmed the summary judgment entered by the District
Court in favor of the municipality and its Chief of Police upon the
plaintiff's claim that they “established a policy or custom of using
excessive force?”
III. Can an omission in the training of a police officer constitute
the “moving force,” rendering a municipality and its Chief of Police
liable under § 1983, of aconstitutional violation allegedly committed
through the use of excessive force by that police officer in shooting
the plaintiff, where the municipality and its Chief of Police promul-
gated and strictly enforced a written policy governing the use of
firearms by police officers which fully complied with constitutional
requirements, and where the Court of Appeals has affirmed the
finding by the District Court that “[p]laintiff has adduced no evidence
to show a pattern of violent police behavior which might suport an
inference that the Chief of Police supported or acquiesced in such
behavior,” and has affirmed the summary judgment entered by the
District Court in favor of the municipality and its Chief of Police
on plaintiff's claim that they “established a policy or custom of
using excesive force?”
IV. Does the Court of Appeal’s ruling that a triable issue exists
concerning whether an alleged failure by a municipality and its Chief
of Police to train a police officer was the “proximate cause” of that
officer's use of excessive force comport with Monell’s requirement
that a municipal policy or custom be the “moving force” of a constitu-
tional violation?
V. Can an isolated omission in the training of a single police
officer form the predicate for an inference of an affirmative municipal
policy or custom of providing grossly inadequate training to the
municipality’s police force?
VI. Is the Chief of Police of a municipality entitled to qualified
immunity under § 1983 for his discretionary acts with respect to the
training of a police officer where those acts neither in themselves
violated any constitutional rights of the plaintiff of which the Chief
of Police should have known, nor authorized or condoned constitu-
tional violations by that police officer, but merely rendered, in the
view of the Court of Appeals, such constitutional violations by
others “likely to arise?”
Parties to the Proceeding
TOWN OF SAUGUS, Defendant-Appellee, Petitioner.
FRED FORNI, Defendant-Appellee, Petitioner.
HOWARD WHEELER, Defendant-Appellee, Respondent.
HAROLD VITALE, by his administrator or administratrix,
Defendant, Respondent.
JAMES T. VOUTOUR, Plaintiff-Appellant, Respondent.
Table of Contents.
Opinions below |
Jurisdictional statement l
Statutes involved l
Statement of the case 2
A. Prior proceedings 2
B. Statement of facts 5
1. The shooting incident 5
2. Training of Saugus police officers 5
3. Training of Harold Vitale
Argument
I. Introduction
Il. The decision of the Court of Appeals in this case dra-
matically expands municipal and supervisory liability
under § 1983, in contravention of this Court's deci-
sions, and in sharp conflict with the consensus among
other Federal courts of appeals
A. This case presents a fundamental issue which has not
been, but should be resolved by this Court: whether a
municipality and its supervisory officials may be li-
able under § 1983 for alleged deficiencies in police
training notwithstanding the absence of any policy or
custom on the part of the municipality, or any action
on the part of its supervisory officials, which is itself
unconstitutional
B. The decision of the Court of Appeals ignored this
Court’s mandate in Monell that municipal policy or
custom must constitute the “moving force” of the
constitutional violation
C. The judgment of the Court of Appeals ignored
Monell’s mandate that municipal liability under
§ 1983 be predicated upon official policy or custom,
and departed from this Court’s decision in Turtle, and
the consensus among other Federal courts of appeals
that municipal policy or custom cannot be inferred
from a single instance of misconduct or a single
failure in training or supervision
il TABLE OF AUTHORITIES CITED.
D. By denying Police Chief Forni qualified immunity
on the grounds that his alleged conduct in failing to
train properly a police officer, while neither in itself
violating any constitutional rights of the plaintiff, nor
supporting or acquiescing in the use of excessive
force, made a constitutional violation committed by
that police officer “likely to arise,” the Court of Ap-
peals departed from the holding of Harlow 24
Conclusion 27
Appendix follows page 27
Table of Authorities Cited.
CASES.
Batista v. Rodriguez, 702 F.2d 393 (2d Cir. 1983) 17, 18
Bennett v. Slidell, 728 F.2d 762 (Sth Cir. 1984), cert.
denied, __ U.S. __, 53 U.S.L.W. 3882 (1985) 14, 22
Davis v. Scherer, __. U.S. __, 104 S.Ct. 3012 (1984) 27n
Dick v. Watonwan County, 738 F.2d 989 (8th Cir. 1984) 14, 22
First Nat. Bank v. Cities Service Co., 391 U.S. 253 (1968) 20n
Garris v. Rowland, 678 F.2! 1264 (Sth Cir.). cert. denied
sub nom. Fort Worth v. Garris, 459 U.S. 864 (1982) 16
Gilmere v. Atlanta, Ga., 737 F.2d 894 (11th Cir.), reh.
en banc granted, 737 F.2d 912 (11th Cir. 1984) 19
Harlow v. Fitzgerald, 457 U.S. 800 (1982) 24, 25, 26, 27n
Hays v. Jefferson County, Ky., 668 F.2d 869 (6th Cir.).
cert. denied, 459 U.S. 833 (1982) 14
Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981) 14, 16
Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) 26
Languirand v. Hayden, 717 F.2d 220 (Sth Cir. 1983),
cert. denied, __ U.S. __, 104 S.Ct. 2656 (1984) 14, 22, 23
Leite v. Providence, 463 F. Supp. 585 (D. R.I. 1978) 14n
Lenard v. Argento, 699 F.2d 874 (7th Cir.), cert. denied,
— U.S. __, 104 S.Ct. 69 (1983) 14, 22
TABLE OF AUTHORITIES CITED. ill
Manego v. Cape Cod Five Cents Sav. Bank, 692 F.2d 174
(Ist Cir. 1982) 20
Milligan v. Newport News, 743 F.2d 227 (4th Cir. 1984) 17
Monell v. Department of Social Services, 436 U.S. 658
(1978) 10, 12, 13, 14, 15 et seq.
Oklahoma City v. Tuttle, __ U.S. —_, 105 S.Ct. 2427
(1985) 12, 15, 19, 21
Packish v. McMurtrie, 697. F.2d 23 (Ist Cir. 1983) 20
Paul v. Davis, 424 U.S. 693 (1976) 10
Polk County v. Dodson, 454 U.S. 312 (1981) 13, 15
Rizzo v. Goode, 423 U.S. 362 (1976) 13, 15, 18, 26
Rymer v. Davis, 754 F.2d 198 (6th Cir. 1985), vacated sub
nom. Shephersville v. Rymer, —_ U.S. __, 53 U.S.L.W.
3911 (1985) 14n
Schreffler v. Bowles, 153 F.2d 1 (10th Cir.), cert. denied,
328 U.S. 870 (1946) 20
Tennessee v. Garner, 471 U.S. __, 105 S.Ct. 16941985) II
Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. denied, 449
U.S. 1016 (1980) 13, 22
Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983) 14, 22
Voutour v. Vitale, 761 F.2d 812 (Ist Cir. 1985) passim
STATUTES.
28 U.S.C. § 1254 (1) l
28 U.S.C. § 1331-1343 2
42 U.S.C. § 1983 passim
Massachusetts General Laws
c. 41, § 96B 1, 9, 26n
Opinions Below.
The opinion of the United States Court of Appeals for the First
Circuit, as amended, is published, with one material inaccuracy’ as
Voutour v. Vitale, 761 F.2d 812 (1st Cir. 1985). The original opinion
of the Court of Appeals, and its memorandum and order upon
Petitioners’ petition for rehearing, are reprinted as issued by the
Court of Appeals in the Appendix to this Petition.
The order of the United States District Court of the District of
Massachusetts granting summary judgment to Petitioners has not
been published. That Order is reprinted in the Appendix to this
Petition.
Jurisdictional Statement.
The judgment of the Court of Appeals was dated and entered on
March 29, 1985. Following Petitioners’ petition for rehearing en
banc, filed April 12, 1985, the Court of Appeals issued memorandum
and order denying rehearing on May 8, 1985. The full panel for the
Court of Appeals issued an order on May 9, 1985 denying rehearing
en banc.
This Court is believed to have jurisdiction pursuant to 28 U.S.C.
§ 1254(1).
Statutes Involved.
42 U.S.C. § 1983
(Text published in Appendix at page 47a.)
MASSACHUSETTS GENERAL Laws, Chapter 41, § 96B.
(Text published in Appendix at page 47a.)
‘The first full paragraph of page 822 of the published opinion was to have been
deleted and replaced, in accordance with the memorandum and order of the Court
of Appeals upon Petitioners’ petition for rehearing, by the paragraph which now
immediately precedes it in the published text. The paragraph deleted by the Court
incorrectly appears, however, in the opinion as published
2
Statement of the Case.
A. Prior Proceedings.
This action arises from an incident in the early morning hours of
February 14, 1977. when plaintiff James T. Voutour (“Voutour”)
was shot by Saugus Police Officer Harold Vitale (“Vitale”) as Vit-
ale’s partner was being dragged along a street by an automobile
operated by Voutour.
The complaint alleged that Voutour was shot without justification
by Vitale, and that Vitale’s partner, Officer Howard Wheeler
(“Wheeler”), had encouraged and approved Vitale’s alleged misuse
of his firearm and had failed to prevent Vitale’s actions. The com-
plaint further alleged that the Town of Saugus (“Saugus”) and its
Police Chief, Fred Forni (“Forni”), had adopted an official policy
of condoning acts of unlawful violence by Saugus police officers,
and that they had acted in a reckless ot «rossly negligent manner
with regard to the training of Saugus police officers. Voutour alleged
that the actions of Vitale, Wheeler, Saugus and Forni violated his
constitutional rights and 42 U.S.C. § 1983, and constituted an assault
and battery and negligence under Massachusetts law. Jurisdiction
over the federal claims was predicated upon 28 U.S.C. §§ 1331 and
1343; pendent jurisdiction was invoked with respect to the state law
claims.
In April, 1982, at the close of more than two and one-half vears
of extensive discovery, defendants moved for summary judgment.
In support of their motions, Saugus and Forni filed memoranda of
law, affidavits and authenticated documents regarding the selection,
training, and discipline of Saugus police officers.
In a memorandum of decision entered November 7, 1982, the
District Court granted summary judgment to Saugus and Forni,
finding that even with all! inferences drawn in favor of Voutour,. the
record did not establish that Saugus or Forni had deprived Voutour
of any rights, or that they had been grossly negligent in training
police officers. The court also tound no evidence in the record of
a pattern of violent police behavior which might support an inference
that Saugus or Forni supported or acquiesced in such behavior. The
court noted that “[t}he only act of defendants Forni or Saugus which
might possibly amount to gross negligence” was their failure to send
3
Vitale to a police training school within nine months of his appoint-
ment as then required by Massachusetts statute, but found that “sum-
mary judgment for [Saugus and Forni] is still warranted because the
affidavits in no way support the inference that such negligence was
the ‘moving force’ behind or even a proximate cause of plaintiff's
injury.” The District Court also granted Wheeler's motion, finding
as a matter of law that Wheeler, who had taken no direct part in
the shooting, had not acted in a grossly negligent matter. Vitale’s
motion was denied by the District Court.
In December 1983, Voutour’s claims against Vitale were tried to
a jury. In response to a special interrogatory, the jury found that in
shooting Voutour, Vitale had not violated Voutour’s constitutional
rights, and returned a verdict for Vitale on Count I, the § 1983
claim. The jury returned a verdict for Voutour on Count II, the state
law claim for assault and battery, in the amount of $1,100,000.
Both Voutour and Vitale appealed on the grounds that the District
Court had failed to disclose to trial counsel written questions from
the jury, and the judge's written responses thereto, until after the
verdict. Voutour also appealed the District Court's grant of summary
judgment to Saugus, Forni, and Wheeler.
In an opinion dated March 29, 1985, the Court of Appeals vacated
the judgments entered by the District Court upon the jury’s split
verdict, holding that the trial judge’s undisclosed communications
with the jury required a new trial on all counts. The Court of Appeals
affirmed the District Court's grant of summary judgment to Wheeler
on the grounds that Wheeler was entitled to qualified immunity for
his actions.
With respect to Saugus and Forni, the Court of Appeals expressly
agreed with the District Court’s finding that “[p]laintiff has adduced
no evidence to show a pattern of violent police behavior which
might support an inference that the Chief of Police supported or
acquiesced in such behavior,” 761 F.2d at 820, and affirmed the
summary judgment in favor of Saugus and Forni entered by the
District Court on Voutour’s claim that Saugus and Forni “had estab-
lished a policy or custom of using excessive force.” 761 F.2d at
826. The Court of Appeals reversed the District Court’s grant of
summary judgment in favor of Saugus and Forni on Voutour’s claims
alleging inadequate police training, concluding that on the record
4
before the District Court there exists a triable issue of fact as to the
effectiveness of the in-service training provided by Saugus to its
police force. 761 F.2d at 821. In particular, the Court of Appeals
held that a triable issue exists concerning whether Forni had been
“grossly negligent to the point of conscious indifference” with respect
to police training, and in particular Vitale’s training, 761 F.2d at
822, and whether such negligence was the “proximate cause” of
Vitale’s alleged use of excessive force against Voutour. /d. at 821.
Saugus and Forni petitioned the Court of Appeals for rehearing
en banc on April 12, 1985, and brought to the Court’s attention
misstatements of fact contained in the Court’s opinion.’ In a
memorandum and order entered May 8, 1985, the Court of Appeals
substantially revised its statement of facts concerning the factual
record before the District Court to correct errors pointed out by
Saugus and Forni, but did not modify its judgment, and denied
rehearing. On May 9, 1985, the full Court of Appeals denied rehear-
ing en banc.
Among other errors, the Court's original opinion stated that Forni had violated
staie law by failing to provide Vitale, and possibly Wheeler, with “any police
taining whatsoever”. Slip opinion at 19a. The Court's statement inexplicably
>»verlooked the undisputed record before the District Court documenting substantia!
in-service training provided by Saugus and Forni to both Vitale and Wheeler, and
was withdrawn from the Court's amended opinion. Similarly, in a paragraph which,
in a publisher's error, appears even in the published opinion of the Court, see ante
at | n.1, the Court asserted that “neither Vitale nor Wheeler received any training
in the use of firearms.” Slip opinion at 20a. The Court apparently referred to
Forni’s interrogatory answer that he had not personally given such instruction to
his officers (A.107), without noting that the interrogatory answers of the Town
made it clear that, as Chief of Police, For; had no responsibility to provide such
instruction in person (A.197). Again, however, the Court’s statement inexplicably
disregarded the undisputed record showing that Vitale and Wheeler, like other
Saugus officers, had received substantial in-service firearms training from other
supervisory officers. As Petitioners discuss infra, the record before the District
Court in fact reveals only one isolated omission in the training of a single police
officer: the failure of Forni to send Vitale to a police training school within the
statutory period.
While the Court ot Appeals amended its opinion to correct certain of the errors
in response to Petitioners’ request for rehearing, the Court declined to correct other
misstatements in its original opinion. Where material to the issues presented in
this Petition, those misstatements are noted infra.
5
B. Statement of Facts.
1. The Shooting incident.
In the early morning of February 14, 1977, Saugus police officers
Vitale and Wheeler observed Voutour’s car parked on a side street
with its motor running (A. 440, 519).* Vitale and Wheeler had previ-
ously seen the Voutour vehicle, which was unregistered and in a
defective condition (A. 462-464, 495-498, 559-560), drive the wrong
way on a highway access ramp (A. 80, 85); Voutour had been trying
to evade the police since that incident (A. 466-467, 512, 515-518).
Officer Wheeler approached the passenger door of the Voutour car to
investigate. Although Vitale and Wheeler did not use the police cruiser’s
flashing blue lights or siren, McDonald, Voutour’s friend and front-seat
passenger, immediately recognized Wheeler as a police officer by his
uniform (A. 455), and said something to Voutour (A. 429).
As Wheeler reached for the door handle, Voutour abruptly accel-
erated his vehicle, which skidded slightly to the right, grazing
Wheeler. Wheeler began to fall beneath the car and grabbed the
door handle to catch his balance (A. 82, 429-433, 484-488); he
struck the car window with the flashlight in his left hand to attract
the attention of the driver (A. 439, 485, 486).* Voutour’s passengers
each yelled to him, “It’s the police, stop!” (A. 521.)
Wheeler, hanying onto the door handle, was dragged for some
distance, while ' ie engine of the car was revving at high throttle
and tires spun on the icy street (A. 82, 85, 445-446, 523).° Observing
his partner being dragged by Voutour’s moving vehicle and believing
his partner’s life in danger, Vitale made a split-second decision that
he had to stop Voutour’s vehicle (A. 85-86, 445-447, 490-491).
Vitale drew his service revolver and aimed at the shoulder of the
driver of the Voutour car (A. 86, 491); Vitale’s shot struck Voutour
in the neck, rendering him a quadraplegic.
2. Training of Saugus Police Officers.
The factual record before the District Court with respect to the
training and supervision of Saugus police officers included affidavits,
‘Statements by Petitioners regarding the factual record before the District
Court are cited, for the convenience of the Court, to the appendix to the parties’
briefs before the Court of Appeals, which Petitioners have requested be certified
and transmitted to this Court.
‘There is a dispute of fact concerning whether Wheeler was also carrying
his service revolver.
*Voutour asserts that he was applying his brakes and was stopping his car
when he was shot.
6
interrogatory answers, deposition transcripts, and other authenticated
documents submitted by Saugus and Forni in support of their motions
for summary judgment, and certain materials submitted by Voutour
in opposition to those motions.° The record before the District Court
established the following facts as to training.
Prior to Voutour’s shooting in 1977, Saugus provided extensive
training to its police officers in several ways. Saugus conducted a
comprehensive program of in-service training, including substantial
firearms training, for both new and veteran police officers (A.90).
In-service training sessions for Saugus police officers were con-
ducted at roll call. During the period of time Forni was Chief of
Police, there were approximately two (2) one-hour sessions during
each month dealing with, among other issues, such firearms-related
subjects as: (a) Firearms Safety; (b) Firearm Care and Maintenance;
(c) Danger in Firing Warning Shots; (d) Safety on the Firing Line;
and (e) Approaching the Arrested (A. 90-91, 106, 196). The in-serv-
ice training provided by Saugus and Forni specifically addressed
the situations in which use of firearms was proper or improper (A.
184-185, 708, 709-710).
In addition, in 1976 and 1977, Saugus officers were given 250
to 300 rounds of ammunition annually for individual firearm practice
at the police department’s firearm range, located in the basement
of the police station. These training classes, which included target
practice sessions, were supervised by superior officers who examined
each officer’s firearms training (A. 91, 106, 196).
Apart from the formalized training recited above, each new Saugus
officer received considerable informal training by being paired on
duty with senior, more experienced, members of the Saugus police
force. During the course of their duty, the veteran officer would
instruct the new officer on the various procedures relevant to particu-
lar situations police officers routinely encounter (A. 90).
* Apart from a selection of unauthenticated documents and deposition transcript
pages, Voutour submitted an alleged “affidavit” in the form of a highly-conclusory
104-page report by a purported expert, James J. Fyfe. Saugus and Forni, joined
by defendants Wheeler and Vitale. moved to strike the Fyfe “affidavit” as defective
under Fed. R. Civ. P. 56(e). The District Court did not rule upon the admissibility
of the Fyfe “affidavit,” finding summary judgment in favor of Saugus, Forni, and
Wheeler was warranted even upon consideration of that document. The Court of
Appeals, similarly, expressly declined to rule upon the admissibility of the Fyfe
affidavit, 761 F.2d at 822, but inexplicably relied upon Fyfe’s improper conclusions
in reaching its decision. See 761 F.2d at 821-22.
9
the use of firearms, including the situations when firearms use was
proper or improper (A. 183-185, 7 3-710).
In May, 1975, a senior commanding officer in the Saugus Police
Department explained to Vitale the Department's written policy
regarding the use of firearms by police officers, and provided Vitale
with a copy of the policy, which Vitale read (A. 709-710).
Although Massachusetts General Laws, c. 41, § 96B required
regular police officers to attend a police training academy within
nine months of their appointment, Vitale had not attended a police
academy at the time of the Voutour shooting, nineteen months after
his appointment as a regular officer.” At the time Vitale became a
permanent officer in 1975, he was attending a criminal justice prog-
ram at North Shore Community College, and Chief Forni believed
that Vitale did not wish to have his studies interrupted (A. 169-170).
In addition, Chief Forni had found that there were limited places
available for police officers in the then-existing police training
academies (A. 93). In view of the fact that Vitale had acquired
substantial firearms and other police training prior to 1975, Forni
decided that other, less experienced, Saugus officers should be sent
to the police academy ahead of Officer Vitale, and that Vitale’s
attendance could be postponed (A. 93).
Prior to the February 14, 1977 Voutour incident, Harold Vitale
had never been subject to police discipline for misuse of firearms
or excessive use of force; no complaints had ever been received by
the police department alleging that Officer Vitale had misused his
firearm (A. 93-95, 112). Neither were there any events reported to
Saugus or Forni indicating that Vitale had ever used undue force
performing his duties as a Revere police officer (A. 93).
During Vitale’s four years of service on the Saugus Police Depart-
ment prior to the Voutour incident, Vitale was the subject of only
one informal complaint, alleging that he had unnecessarily restrained
a patron in a crowded restaurant. Following investigation, Forni
concluded that Vitale had not acted improperly in connection with
this incident (A. 94, 161-162, 563-565).
*The opinion of the Court of Appeals inexplicably inflates the period between
Vitale’s appointment as a regular officer and the Voutour incident into “almost
five years.” 761 F.2d at 831. Although the dates of Vitale’s appointment (1975)
and the Voutour shooting (1977) are undisputed, the Court of Appeals declined to
correct its error upon Petitioner's request for rehearing.
10
Prior to the date of the Voutour shooting, Vitale had never fired
his pistol at a human being (A. 182).
Argument.
I. INTRODUCTION.
In Monell v. Department of Social Services, 436 U.S. 658, 695
(1978), this Court expressly reserved further development of the
full contours of municipal liability under 42 U.S.C. § 1983 “to
another day.” This case, raising in stark relief fundamental issues
concerning the nature of the conduct for which a municipality and
its supervisory officials may be held liable under § 1983, signifies
that the day which this Court anticipated in Monell has arrived, and
that further direction of this Court is urgently needed.
The decision of the Court of Appeals in this case, remanding the
Town of Saugus and its Chief of Police for trial on issues regarding
the adequacy of police training in the face of an explicit finding by
the District Court, affirmed by the Court of Appeals, that Saugus
and Forni neither established nor acquiesced in an unconstitutional
policy or custom of the use of excessive force by Saugus police
officers, improperly establishes § 1983 as a “font of tort law,” Paul
v. Davis, 424 U.S. 693, 701 (1976), under which a municipality
and its supervisory officials may be liable under federal law for
“gross negligence” in the conduct of municipal activities which
“proximately causes” a constitutional violation neither intended nor
even contemplated by the municipality or its officials As Petitioners
argue infra, the decision of the Court of Appeals contravenes funda-
mental principles governing proof of municipal policy, causation,
and qualified immunity under § 1983 established by this Court’s
decisions, and conflicts with the consensus among the other federal
courts of appeals. Moreoever, the decision of the Court of Appeals
in this case squarely raises a fundamental issue which has not yet
been, but clearly ought to be, resolved by this Court: whether a
municipality and its supervisory officials can be held liable under
§ 1983 for alleged deficiencies in police training in the absence of
any policy or custom, or any action by the municipality's supervisory
officials, which is itself unconstitutional.
1]
For these reasons, Petitioners submit that direction by this Court
as to the essential contours of municipal and supervisory liability
under § 1983 is urgently needed in this case. Petitioners further
suggest that the factual and legal context of this case make it an
especially appropriate vehicle for this Court to resolve the uncertainty
and confusion which currently exists in the lower federal courts
concerning these issues.
Il. THE DECISION OF THE COURT OF APPEALS IN THIS CASE
DRAMATICALLY EXPANDS MUNICIPAL AND SUPERVISORY LIABIL-
ITY UNDER § 1983, IN CONTRAVENTION OF THIS CouRT’S DECI-
SIONS, AND IN SHARP CONFLICT WITH THE CONSENSUS AMONG
OTHER FEDERAL COURTS OF APPEALS.
A. This Case Presents a Fundamental Issue Which Has Not
Been, but Should be Resolved by This Court: Whether a Munic-
ipality and Its Supervisory Officials May be Liable Under
§ 1983 for Alleged Deficiencies in Police Training Not-
withstanding the Absence of Any Policy or Custom on the Part
of the Municipality or Any Action on the Part of Its Supervisory
Officials Which Is Itself Unconstitutional.
The judgment of the Court of Appeals in this case remands the
Petitioners for trial upon the plaintiff's allegations of inadequate
police training notwithstanding its express agreement with the find-
ing of the District Court that “[p]laintiff has adduced no evidence
to show a pattern of violent police behavior which might support
an inference that the Chief of Police supported or acquiesced in such
behavior,” 761 F.2d at 820, and notwithstanding affirmance by the
Court of Appeals of summary judgment in favor of Saugus and
Forni upon the plaintiff's claim that they had “established a policy
or custom of using excessive force.” /d. at 825. Indeed, the undis-
puted factual recurd before the court demonstrates that, far from
maintaining an unconstitutional policy with respect to the use of
force by Saugus police officers, Saugus and Forni promulgated and
strictly enforced a written firearms policy which, in carefully restrict-
ing the use of deadly force to life-threatening situations, complies
in every respect with constitutional requirements. See Tennessee v.
Garner, 471 U.S. —_, 105 S.Ct. 1694 (1985).
12
The judgment entered by the Court of Appeals is thus necessarily
predicated upon a tacit holding that a municipality and its supervisory
officials may be liable under § 1983 for alleged deficiencies in police
training notwithstanding the absence of any policy or custom on the
part of the municipality, or any action on the part of its supervisory
officials, which is itself unconstitutional.
In defining the general outlines of municipal and supervisory
liability under § 1983, this Court has never explicitly determined
whether governmental liability under § 1983 may be predicated upon
a municipal policy, such as that alleged in this case with respect to
police training, which is not in itself unconstitutional, but which is
merely alleged to be causally linked to a constitutional violation
committed by a municipal employee. This Court noted, but did not
resolve that issue in its recent decision in Oklahoma City v. Tuttle,
___ U.S. —___, 105 S.Ct. 2427, 2436 n.7 (1985). Nor, in a closely-
related issue, has this Court established whether governmental liabil-
ity under § 1983 may be premised upon a failure to act by a munic-
ipality or supervisory official. Nevertheless, this Court's decisions
strongly suggest that municipal liability under § 1983 must be prem-
ised upon a municipal policy, and that supervisory liability under
§ 1983 must be based upon supervisory action, which actively directs
or approves unconstitutional action by municipal employees, and
which can therefore itself be found to be unconstitutional.
In Monell, this Court had no occasion to address such issues,
because the official policy challenged in that case, a city policy
compelling pregnant employees to take unpaid leaves of absence
before such leaves were required for medical reasons, uncontrover-
tedly constituted the “moving force” of the plaintiffs’ alleged con-
stitutional injuries. 436 U.S. at 694-695. Nevertheless, the language
of the Monell decision strongly suggests that this Court contemplated
that municipal liability under § 1983 would be predicated upon
governmental policy or custom which, by directing unconstitutional
action, is itself unconstitutional. Municipalities may be sued directly
under § 1983, the Monell Court declared, where
the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by _ that body's
officers, [or is] visited pursuant to governmental custom. . . .
13
[I]t is when execution of a government’s policy or custom. . .
inflicts the injury that the government as an entity is responsible
under § 1983.
436 U.S. at 690-694 (emphasis added).
This Court placed similar emphasis upon direct authorization of
unconstitutional conduct in the context of supervisorial liability under
§ 1983 in Rizzo v. Goode, 423 U.S. 362 (1976). Reversing the
district court’s issuance of an injunction against city officials predi-
cated upon a Statistical pattern of police violations, the Rizzo Court
pointed to the absence of an “affirmative link between the occurrence
of the various incidents of police misconduct and the adoption of
any plan or policy by petitioners — express or otherwise — showing
their authorization or approval of such misconduct.” Id. at 371
(emphasis added). The Rizzo Court flatly rejected, as inconsistent
with the language of § 1983, the theory of the plaintiffs in that case
that the failure of city officials to act in the fact of such a pattern
of misconduct was equivalent to active conduct directing such mis-
conduct. /d. at 375-376.
Emphasizing anew Moneil’s requirement that official policy or
custom be “the moving force” of a constitutional violation in order
to establish municipal liability under § 1983, this Court in Polk
County v. Dodson, 454 U.S. 312 (1981) clearly suggested that such
municipal policy or custom must itself be unconstitutional. Noting
that the policy challenged in Polk County, withdrawal by public
defenders from frivolous cases, “would not violate the Constitution,”
this court concluded that the plaintiff had failed to allege that his
deprivation “was caused by any constitutionally forbidden rule or
procedure.” /d. at 326 (emphasis added). Significantly, the Polk
County Court cited Rizzo for the proposition that a “general allegation
of negligence fails to state a constitutional claim cognizable under
§ 1983.” Jd.
Consistent with the mandate of this Court’s decisions in Monell,
Rizzo, and Polk County, the lower federal courts have broadly rec-
ognized allegations of inadequate training and supervision not as
establishing in themselves a cause of action under § 1983, but as
evidence which could support an inference of a tacit, unconstitutional
municipal or supervisory policy or custom authorizing, approving,
or acquiescing in misconduct by the municipality’s personnel. See
e.g., Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.), cert. denied,
id
449 U.S. 1016 (1980); Hays v. Jefferson County, Ky., 668 F.2d
869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982); Lenard v.
Argento, 699 F.2d 874, 885 (7th Cir.), cert. denied, __ U.S. —_,
104 S. Ct. 69 (1983); Languirand v. Hayden, 717 F.2d 220, 227
(Sth Cir. 1983), cert. denied, _. U.S. __, 1048. Ct. 2656 (1984);
Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir. 1983). To
establish such an inference, however, the federal courts have gener-
ally held that the plaintiff must demonstrate that the municipality
or its officials were placed on sufficient notice of widespread prior
misbehavior. See, e.g., Wellington v. Daniels, supra, 717 F.2d at
936; Bennett v. Slidell, 728 F.2d 762 (Sth Cir. 1984) (en banc),
cert. denied, __ U.S. —_, 53 U.S.L.W. 3882 (1985); Herrera v.
Valentine , 653 F.2d 1220 (8th Cir. 1981); Dick v. Watonwan County,
738 F.2d 939, 943 (8th Cir. 1984).'°
The decision of the Court of Appeals in this case, however, does
not purport to predicate the possible liability of Saugus and Forni
for allegedly inadequate police training upon such an inference of
a tacit municipal or supervisory policy authorizing or acquiescing
in constitutional violations by Saugus police officers. Indeed, recog-
nizing that the plaintiff in this case has utterly failed, notwithstanding
extensive discovery, to demonstrate any pattern of police miscon-
duct, the Court of Appeals has expressly rejected such an inference
761 F.2d at 820. That Court, moreover, has affirmed the summary
judgment granted by the District Court in favor of Saugus and Forni
on plaintiff's claim that Saugus and Forni had established a policy
or custom of the use of excessive force. 761 F.2d at 825. Thus, the
judgment of the Court of Appeals remanding Petitioners for trial
upon the plaintiff's allegations of inadequate police training stands
alone, severed from any connection with any possible unconstitu-
tional policy or custom allegedly maintained by Saugus and Forni.
A few courts, characterized by the Fifth Circuit as taking the “most expansive”
view of Monell, Bennett v. Slidell, supra, 728 F.2d at 768 n.3, would permit an
inference of municipal policy or custom acquiescing in or authorizing police mis-
conduct from a single incident, where there is evidence that the municipality
“completely fails” to train its police force, or trains its officers in a reckless or
grossly negligent manner “so that future police misconduct is almost inevitable.”
Leite v. Providence, 463 F.Supp. 585, 590 (D.R.I. 1978). Accord, Rymer v.
Davis, 754 F.2d 198, 200-201 (6th Cir. 1985), vacated sub nom. Shepherdsville
v. Rymer, —_.. U.S. —_, 53 U.S.L.W. 3911 (1985). Like the majority view,
however, which permits such an inference only where a pattern of prior misconduct
has put the municipality and its officials on notice, these courts view a systematic
failure to train as evidence supporting an inference of unconstitutional policy or
custom on the part of the municipality. /d.
15
Because Petitioners believe the Court of Appeals has gravely
misconstrued this Court’s decisions in holding that Petitioners may
be liable under § 1983 for alleged omissions in the training of Saugus
police officers in the absence of any municipal policy, or supervisory
action, which is in itself unconstitutional, and because Petitioners
believe that this issue is of fundamental importance to the law gov-
erning municipal liability under § 1983, Petitioners submit that this
issue should be decided by this Court on certiorari.
B. The Decision of the Court of Appeals Ignored This Court's
Mandate in Monell Thet Municipal Policy or Custom Must
Constitute the “Moving Force” of the Constitutional Violation.
This Court has repeatedly stressed that causation bears exceptional
significance in establishing municipal or supervisory liability under
§ 1983. With regard to municipal liability under § 1983, the Supreme
Court in Monell firmly rejected respondeat superior as a basis of
liability under § 1983, and held that only where the “execution of
a government's policy or custom . . . inflicts the injury” may a
municipality as an entity be liable under § 1983. 436 U.S. at 964
(emphasis added). The Monell Court noted that the express language
of § 1983 precludes liability for the acts of an employee except
where the government’s policy “caused” the violation of constitu-
tional rights. /d. at 692. Thus, a municipality’s official policy must
be “the moving force of the constitutional violation” in order to
establish municipal liability under § 1983. Polk County v. Dodson,
454 U.S. 312, 326 (1981) (emphasis added).
Similarly, with regard to supervisory liability, this Court noted
in Rizzo v. Goode, 423 U.S. 362 (1976) that a plaintiff must dem-
onstrate an “affirmative link” between an incident of police miscon-
duct and the adoption of a plan or policy by supervisory officials
“showing their authorization or approval of such misconduct.” Id.
at 371 (emphasis added). In the absence of “direct responsibility”
for the actions of subordinates which deprive a plaintiff of his con-
stitutional rights, the Court in Rizzo held that a mere failure to act
with respect to supervision cannot support liability.
This Court reemphasized the central importance of causation in
establishing municipal liability under § 1983 in its recent decision in
Oklahoma City v. Tuttle, supra, 105 S.Ct. at 2436 and nn.7, 8. Holding
that a single incident of police misconduct cannot supply an inference
of a municipal “policy” of “inadequate training” and a further inference
that the “policy” was the cause of the incident, the Turtle Court observed:
16
{S]ome limitation must be placed on establishing municipal
liability through policies that are not themselves unconetitu-
tional, or the test set out in Monell will become a dead .. iter.
Obviously, if one retreats far enough from a constitutional
violation some municipal “policy” can be identified behind
almost any such harm inflicted by a municipal official; for
example, Rotramel would never have killed Tuttle if Oklahoma
City did not have a “policy” of establishing a police force. But
Monell must be taken to require proof of a city policy different
in kind from this latter example before a claim can be sent to
a jury on the theory that a particular violation was “caused”
by the municipal “policy.” At the very least there must be an
affirmative link between the policy and the particular constitu-
tional violation alleged.
105 S.Ct. at 2436. The Tuttle Court also noted that, even assuming
that a policy with respect to training which was not in itself uncon-
stitutional could meet the “policy” requirement of Monell, “it is
Open to question whether a policymaker’s “gross negligence” in
establishing police training practices could establish a “policy” that
constitutes a “moving force” behind subsequent unconstitutional
conduct, or whether a more conscious decision on the part of the |
policymaker would be required.” /d. at 2436 n.7.
While the decisions of this Court have not fully defined Monell’ s
requirement that municipal policy be “the moving force” of the
constitutional violation, cases construing Monell in the federal courts
of appeals have illuminated the causation requirement in a wide
range of factual contexts. Thus, where a municipal policy directs
the conduct by employees found to violate the plaintiff's constitu-
tional rights, as in Garris v. Rowland, 678 F.2d 1264 (Sth Cir.),
cert. denied sub nom. Fort Worth v. Garris, 459 U.S. 864 (1982),
where an unfounded and unlawful arrest was made in full accord
with the policies and procedures of the city police department con-
cerning arrests and arrest warrants, causation is clear.
While less direct, municipal policy authorizing, approving, or
condoning acts of unconstitutional violence by police officers may
be inferred from the municipality’s continued failure to take disci-
plinary action in the face of widespread constitutional deprivations,
as in Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981), where
‘he city had been placed on repeated notice of nearly forty separate
————————
7
complaints of police misconduct, but permitted its police force to
continue its oppression of minorities. Where such a municipal “pol-
icy” of inaction is inférred, however, causation under Monel! must
rest upon the awarenes8.of municipal employees that their miscon-
duct is tacitly approved by the municipality. Thus, the Court of
Appeals for the Fourth Circuit observed in Milligan v. Newport
News, 743 F.2d 227, 230 (4th Cir. 1984) (emphasis added):
[While a municipality's “policy” of inaction need not be found
to have effectively commanded the particular violation, it must
be of such a character that municipal employees could reason-
ably infer ;rom it tacit approval of the conduct in issue. For
only so could the requisite causal connection between policy
and constitutional deprivation be found. . . . From this it
follows that municipal liability may not be rested simply upon
a failure to adopt policies that in retrospect can be seen to be
a means by which particular unconstitutional conduct of its
employees might have been averted.
Accord, Batista v. Rodriguez, 702 F.2d 393, 398, 399 (2d Cir.
1983) (reversing jury verdict against municipality on grounds, inter
alia, that there was no evidence that named police officers were
aware of any alleged city policy condoning police violations of civil
rights).
Recognizing that municipal and supervisory liability under § 1983
must be predicated upon a showing of direct, affirmative causation
by which a municipal or supervisory policy inflicts the plaintiff's
injury, the District Court in this case held that summary judgment
for Saugus and Forni was appropriate, notwithstanding that the failure
to send Vitale to a police training academy within the statutory period
“might possibly” constitute gross negligence, because that failure
could in no sense be said to be the “moving force” of Vitale’s
shooting of Voutour. The decision of the Court of Appeals, however,
reverses the summary judgment granted by the District Court to
Saugus and Forni on the ground that there exists an issue of material
fact concerning whether the alleged failure properly to train Officer
Vitale was the “proximate cause” of Voutour’s injury. 761 F.2d at
821. In reaching that conclusion, the Court of Appeals erroneously
applied a simple “but-for” causal analysis to the facts, holding that
a jury could conclude that a trained officer would not have acted as
Vitale had. 761 F.2d at 822.
18
The Court of Appeals substitution of “proximate cause” for
Monell’s requirement that municipal policy or supervisory action
constitute the “moving force” directly causing plaintiff's injury is
wholly inconsistent with this Court’s decisions, and with the deci-
sions of other federal courts of appeals. The Supreme Court’s concern
that municipal liability under § 1983 be predicated upon a showing
that municipal policy or custom directly and affirmatively inflicted
the constitutional injury, and the Supreme Court’s rejection in Rizzo
of any theory of liability predicated upon administrative negligence,
Polk County, supra, 454 U.S. at 326, requires a finding on the issue
of causation which goes far beyond the proximate cause standard
adopted by the Court of Appeals. See, e.g., Batista v. Rodriguez,
702 F.2d 393, 399 (2d Cir. 1983) (jury instruction that plaintiff
couid recover upon a finding that pattern of police misconduct was
the proximate cause of the violations of plaintiff's right “hardly
amounted to a statement that the jury must first find that the City
was the ‘moving force’ behind the officers’ actions”). Moreuver,
the simplistic “but-for” analysis applied by the Court of Appeals
was expressly disapproved by this Court in Tuttle, supra, 105 S.Ct.
at 2436.
On this issue, the District Court was clearly correct: the record
in this case contains no evidence that would permit a jury to find
that any policy of Saugus or Forni with respect to police training
“inflicted” Voutour’s injury. The isolated failure of Saugus and Forni
to provide Vitale, an experienced police officer, with an additional
several-week training academy course, even if it constituted negligence,
is far from the showing of “direct responsibility,” Rizzo, 423 U.S. at
376, for Vitale’s “split-second” decision to shoot to protect his partner’ s
endangered life. As the Court of Appeals expressly found in partially
affirming summary judgment ior Saugus and Forni, Saugus and Forni
at no time directed or condoned the use of excessive force by Vitale
or other Saugus police officers. 761 F.2d at 820, 825. Indeed, Saugus
and Forni implemented and enforced an affirmative, written firearms
policy which restricted the authorized use of deadly force to life-
threatening situations, in complete conformance with constitutional
requirements. To nevertheless find an isolated omission in the training
of a single officer to constitute the “moving force” behind a shooting
incident which, if unjustified, directly contravened official Town pol-
icy, “blurs accepted usages and meanings in the English language in
a way which would be quite inconsistent with the words Congress
chose in § 1983.” Rizzo, 423 U.S. at 376.
19
C. The Judgment of the Court of Appeals Ignored Monell’s Man-
date That Municipal Liability Under § 1983 be Predicated
Upon Official Policy or Custom and Departed From This
Court's Decision in Tuttle, and the Consensus Among Other
Federal Courts of Appeals That Municipal Policy er Custom
Cannot be Inferred From a Single Instance of Misconduct or
a Single Failure in Training or Supervision.
The fundamental basis for the imposition of liability under § 1983
upon a municipality is the existence of a municipal policy or custom
which violates the constitutional rights of the plaintiff. Monell, 436
U.S. at 690-691, 694. As the Court of Appeals for the Eleventh
Circuit recently emphasized, the question of whether municipal of-
ficials may have been negligent, or even “grossly negligent,” in
training police officers is simply irrelevant in the absence of evidence
that such negligence was somehow in furtherance of municipal policy
or custom. Gilmere v. Atlanta, Ga., 737 F.2d 894, 902, 904 (11th
Cir.), reh. en banc granted, 737 F.2d 912 (11th Cir. 1984). Cf.
Oklahoma City v. Tuttle, __ U.S. —__, 105 S.Ct. 2427, 2436 (1985)
(proof of “policy” of “inadequate training” requires evidence that
policymakers deliberately chose a training program which would
prove inadequate).
In this case, the Court of Appeals expressly found that Saugus
and Forni had neither established nor acquiesced in any policy or
custom of the use of excessive force by Saugus police officers. 761
F.2d at 820, 825. Moreover, the Court of Appeals acknowledged
that, on the record before the District Court, compiled after two and
one-half years of discovery, the plaintiff had adduced no evidence
that any omissions in training were even known to Saugus, much
less a result of municipal policy or custom. 761 F.2d at 823. To
the contrary, as the Court of Appeals recognized, the undisputed
record confirmed that “the Town followed the statutory mandate for
police training as a matter of policy.” /d. The undisputed record
also established that Saugus and Forni provided substantial in-service
training, including firearms training, to weir police officers, ante
at __, that Saugus and Forni promulgated and strictly enforced an
exemplary firearms policy that provided explicit guidance as to when
and when not to shoot, ante at __, and, as the Court of Appeals
expressly found, that there had been no pattern of misconduct by
Saugus police officers which might demonstrate inadequate police
training. 761 F.2d at 820.
20
Nevertheless, despite the complete absence of any evidence of a
defective municipal policy with respect to police training, the Court
of Appeals remanded Saugus and Forni to trial on the basis that a
triable issue exists concerning whether Forni had been “grossly
negligent to the point of conscious indifference with respect to police
training, and in particular Vitale’s training,” and whether such neg-
ligence proximately caused Voutour’s injury. 761 F.2d at 822. In
so holding, the Court of Appeals ignored Monell’s mandate that
official policy or custom is the only predicate for municipal liability
under § 1983, and vitiated the salutary function of summary judgment
to “pierce formal allegations of facts in the pleadings . . . ,” Schreffler
v. Bowles, 153 F.2d 1, 3 (10th Cir.), cert. denied, 328 U.S. 870
(1946), and to avoid unnecessary trial where there is no genuine
issue of material fact. On the record assembled before the District
Court, after two and one-half years of extensive discovery by all
parties, there was simply no evidence of any municipal “policy” or
custom of “inadequate training;” the record showed only that one
officer had failed to attend a police training school within the time
prescribed by statute. On that record, Saugus and Forni were entitled
to the summary judgment granted them by the District Court. As
the Court of Appeals for the First Circuit has remarked on another
occasion, the party opposing summary judgment must at least point
to some “glowing embers;” “‘smoke alone is not enough to force
the defendants to a trial to prove that their actions were not’ improp-
er.” Packish v. McMurtrie, 697 F.2d 23, 27 (1st Cir. 1983), quoting
from Manego v. Cape Cod Five Cents Sav. Bank, 692 F.2d 174,
177 (1st Cir. 1982)."'
'' The opinion of the Court of Appeals suggests that Saugus may pursue the
issue of whether there exists sufficient evidence in the record to create a jury
question as to the extent of the Town’s knowledge of and involvement in
Forni’s alleged training failures on summary judgment before the District Court.
761 F.2d at 823, 82/. Tie Court of Appeals overlooks, apparently, that the
Town has already moved for and been granted summary judgment by the
District Court, and that, contrary to the Court of Appeals’ suggestion, the issue
of whether the record before the District Court established a triable issue as
to the existence of any municipal policy with respect to the training or discipline
of police officers which was the “moving force” of the plaintiff's injury was
fully presented and briefed both before the District Court and the Court of
Appeals.
As this Court has noted, an issue of fact, to be “genuine”, must be established
by “sufficient evidence supporting the claimed factual dispute . . . to require
a jury or judge to resolve the parties’ differing versions of the truth at trial.” Firs?
21
Moreover, by remanding Saugus and Forni to trial regarding the
adequacy of police training upon evidence of a single omission in
the training of a single police officer, the Court of Appeals departed
from the teaching of this Court in Oklahoma City v. Tuttle, and
from the clear consensus of an overwhelming majority of the federal
courts of appeals, that municipal policy or custom cannot, as a matter
of law and logic, be inferred from one incident of police misconduct
Or One omission in training or supervision. As this Court stated in
Tuttle:
Proof of a single incident of unconstitutional activity is not
sufficient to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing, un-
constitutional municipal policy, which policy can be attributed
to a municipal policymaker. Otherwise the existence of the
unconstitutional policy, and its origin, must be separately
proved. But where the policy relied upon is not itself unconstitu-
tional, considerably more proof than the single incident will
be necessary in every case to establish both the requisite fault
on the part of the municipality, and the causal connection
between the “policy” and the constitutional deprivation.
105 S.Ct. at 2436.
Just as a single incident of unconstitutional conduct is insufficient,
standing by itself, to show a municipal policy or custom which
directs or acquiesces in the infliction of unconstitutional injury,
Tuttle, supra, an isolated failure in the training or supervision of
one officer cannot, as a matter of law, establish a municipal policy
or custom of “inadequate training.” For this reason, absent direct
evidence of the existence of an impermissible municipal policy or
custom with respect to training, the courts of appeals have required
a showing either of a prior pattern of widespread police misconduct
sufficient to place a municipality on notice that its police required
supervision and training, or of a system-wide failure to train the
municipality's police force; isolated omissions in training or super-
vision have been overwhelmingly rejected by those courts as a basis
Nat. Bank v. Cities Service Co., 391 U.S. 253, 289 (1968). On the record
before the District Court, compiled at the close of two and one-half years of
discovery, plaintiff had adduced no evidence of any municipal “policy” of
“inadequate training”. There is thus no justification for remanding Saugus to
a further summary judgment proceeding before the District Court.
22
for municipal liability. See, e.g., Wellington v. Daniels, 717 F.2d
932, 936 (4th Cir. 1983); Bennett v. Slidell, 728 F.2d 762, 768 and
n.3 (Sth Cir. 1984) (en banc), cert. denied, __ U.S. __, —_ S.Ct.
—. 53 U.S.L.W. 3882 (1985); Turpin v. Maillet, 619 F.2d 196,
202 (2d Cir.), cert. denied, 449 U.S. 1016 (1980); Lenard v.
Argento, 699 F.2d 874, 885-886 (7th Cir.), cert. denied, U.S.
—_, 104 S.Ct. 69 (1983); Dick v. Watonwan County, 738 F.2d 939,
942 (8th Cir. 1984). As the Court of Appeals for the Fifth Circuit
concluded following a comprehensive review of the case law:
[A] municipality is not liable under section 1983 for the neg-
ligence or gross negligence of its subordinate officials, includ-
ing its chief of police, in failing to train the particular officer
in question, in the absence of evidence at least of a pattern of
similar incidents in which citizens were injured or endangered
by intentional or negligent police misconduct and/or that serious
incompetence or misbehavior was general or widespread
throughout the police force.
Languirand v. Hayden, 717 F.2d 220, 227-228 (Sth Cir. 1983),
cert. denied, __U.S. __, 104S.Ct. 2656 (1984) (emphasis added).
In this case there is, as the Court of Appeals expressly found, no
evidence of any prior pattern of police misconduct. Nor, as shown
ante, is there any evidence to show a municipal policy of providing
inadequate training to Saugus police officers. Indeed, there is no
evidence adduced by the plaintiff in the record before the District
Court that any police officer, other than Vitale, was improperly
trained in any respect. Rather, the record discloses only that Forni
failed to send one otherwise fully trained officer, Vitale, to a police
training school within a statutorily prescribed period."
The Court of Appeals cites additional “evidence” to support its finding of
a triable issue, but, with all deference, the “evidence” it relies upon cannot
reasonably support the inferences it apparently draws. For example, the Court
of Appeals quotes selectively (as apparent evidence of failures in training
Saugus officers) a letter from one of Forni’s subordinates regarding three
unrelated shooting incidents by members of the Saugus Police Department.
761 F.2d at 822. The Court does not quote the conclusion drawn by the writer
of the letter in the very next sentence, however, which does not indicate any
dissatisfaction with Saugus’ training program, but rather urges appropriate
disciplinary action against officers who fail to abide by the Saugus Police
Department’s firearms policy: “Some sort of punitive action should be adminis-
23
As the Court of Appeals noted upon identical facts in Languirand
v. Hayden, 717 F.2d 220, 229 (Sth Cir. 1983), cert. denied, ——
U.S. __, 104 S.Ct. 2656 (1984), the failure to send one officer to
a training academy “cannot be converted into having a policy of
placing incapable police officers on patrol.” In Languirand, as here,
there was no evidence that any other police officer was not adequately
equipped, by training, experience, and ability to competently per-
form his or her job. As the Languirand court concluded:
tered if proven that an officer fails to use reasonable judgment when it comes
to the use of his equipment.” As the factual record before the District Court
clearly and undisputedly confirms, prompt disciplinary action was in fact taken
by Forni and Saugus against the two officers who were found to have violated
the Saugus firearms policy; both were discharged. Thus, the decision of the
Court of Appeals appears to draw an inference, based upon a partial reading
of the record, that Forni had been placed on notice of allegedly inadequate
police training methods, when the true record clearly demonstrates that the
concern of the writer of the letter was directed to the need for appropriate
disciplinary action to enforce the Saugus firearms policy and training. Saugus
and Forni called the attention of the Court of Appeals to its error, together
with numerous other material errors of fact, in their request for rehearing, but
the Court inexplicably declined to correct the record on this point.
Similarly, the Court of Appeals pointed to a statement made by Forni in an
undated proposal for reorganization of the Saugus Police Department, request-
ing additional funds for in-service training because “in-service training at roll-
call for 30 minutes is not adequate or effective.” 761 F.2d at 822. The Court
of Appeals clearly seeks to infer from this statement that Saugus in fact provided
inadequate training to its officers. Yet the plaintiff has adduced no evidence
whatsoever that Forni’s request for additional funds was not promptly acceded
to by the Town; indeed, the record demonstrates that in the period prior to
Voutour’s injury in-service training wa? conducted in full hour sessions, not
the 30 minute sessions described by Forni in the undated proposal.
Finally, and most disturbingly, the Court of Appeals appears to rely heavily
upon a highly-conclusory “affidavit” submitted by a purported expert for the
plaintiff, 761 F.2d at 821-822, notwithstanding the Court’s express recognition
that that affidavit, which was the sucject of Petitioners’ undecided motion to
strike as defective under Fed.R.Civ.P. 56(e), had never been determined, either
by the District Court or by the Court of Appeals, to be admissible. Jd. The
reliance by the Court of Appeals upon an affidavit whose admissibility before
the District Court remained in dispute was clearly improper. That “affidavit,”
which is based solely upon the affiant’s review of the materials and pleadings
in the record, is in any event clearly mistaken in its assertion that Saugus and
Forni failed to provide “job-relevant” firearms training. Far from being limited
to the “mechanics” of firearms handling and use, as that affidavit alleges, the
record clearly confirms that the firearms training provided by Saugus and Forni,
together with its written firearms policy, gave explicit instruction with respect
to situations in which firearms use was proper or improper. (A. 137-138,
184-185, 708-710).
24
What we are dealing with here, so far as this record discloses,
is one isolated incident in which the police chief negligently,
or grossly negligently, allowed one particular inadequate of-
ficer to go on patrol, and this officer’s inadequacies resulted
in one particular incident of negligent or grossly negligent
injury to a citizen. Grievous and regrettable as that incident
and injury indisputably are, that does not convert this case to
one of municipal policy or custom under section 1983.
717 F.2d at 229.
Because the plaintiff in this case failed completely, even after
two and one-half years of exhaustive discovery, to present any
evidence whatsoever of a policy or custom on the part of Saugus of
inadequate training, Saugus was entitled, as a matter of law, to the
summary judgment granted by the District Court. The judgment of
the Court of Appeals remanding petitioners to trial, on evidence of
a single omission in the training of one police officer, violates
Monell’s mandate that only official policy or custom may form a
basis for municipal liability under § 1983, and should be reviewed
by this Court on certiorari.
D. By Denying Police Chief Forni Qualified Immunity on the
Grounds That His Alleged Conduct in Failing to Train Properly
a Police Officer, While Neither in Itself Violating Any Constitu-
tional Rights of the Plaintiff, Nor Supporting or Acquiescing
in the Use of Excessive Force, Made a Constitutional Violation
Commiutted by That Police Officer “Likely to Arise,” the Court
of Appeals Departed From the Holding of Harlow.
“Government officials performing discretionary functions gener-
ally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). In remanding this action
for trial the Court of Appeals, in a footnote, rejects Forni’s qualified
immunity defense. 761 F.2d at 822 n.7. In so doing, the Court of
Appeals departs sharply from the decisions of this Court defining
the law applicable to the assertion of qualified immunity by a gov-
ernment official.
The holding by the Court of Appeals regarding Forni’s qualified
immunity defense makes Forni liable not for conduct of his own
25
which directly violated constitutional rights of another, but for a
violation committed by a subordinate officer, Vitale, which the
Court of Appeals concludes was causally linked to an omission in
Forni’s training of that officer. The Court of Appeals misconstrues
Harlow v. Fitzgerald 45 permitting such liability where the govern-
ment official “should havé known” that the constitutional violation
committed by a third party would be “likely to arise.” 761 F.2d at
See 8.7.”
As this Court’s decision in Harlow makes clear, however, the
knowledge for which an official is responsible is not of the possibility
of constitutional violations by others, but rather knowledge that his
conduct violates constitutional rights “of which a reasonable person
should have known.” It is this inquiry — whether the law clearly
established a constitutional right violated by the official’s conduct
— which forms the objective predicate for a denial of qualified
immunity.
The conclusion of the Court of Appeals that Forni “should have
known” of the likelihood of Vitale’s conduct wholly overlooks the
relevant inquiry — whether Forni should have known that his conduct
in the training of Vitale could violate a constitutional right of Vou-
tour's. Forni did not, of course, participate in the shooting of Vou-
tour; moreover, Forni was expressly found by the Court of Appeals
neither to have established nor acquiesced in any unconstitutional
policy of excessive force by Saugus police officers. Forni’s conduct
thus did not in itself violate any constitutional! right of the plaintiff,
and he is entitled to qualified immunity.
The holding of the Court of Appeals to the contrary is, in essence,
a determination that a police chief may be liable under the Constitu-
tion for gross negligence in the training of his police officers, unre-
lated to any unconstitutional policy or act by the police chief. The
Court of Appeais has thus created, in this decision, a de facto
constitutional right in the plaintiff to be free from the consequences
of gross negligence in police training, and a corresponding duty
'*The Court of Appeals adopts similar reasoning in determining that Vitale’s
partner, Wheeler, is entitled to qualified immunity, concluding that Wheeler
could not reasonably be held to have known as he approached Voutour’s car
that Vitale would eventually use excessive force against Voutour, and expressly
holding that “it was Vitale’s use of excessive force that is the constitutional
violation Wheeler would have to have ‘known’ would occur.” 761 F.2d at 819.
26
upon Forni to take affirmative action to avoid such negligence.
Wholly apart from its validity under current law, however, this
holding departs dramatically from the contours of municipal and
supervisory liability under § 1983 as they were understood in Feb-
ruary, 1977, the time of this incident and the time as of when Forni’s
qualified immunity defense must be evaluated.
In 1977, the applicable law regarding a police chief's liability for
failures in the training of police officers was that expressed by this
Court in Rizzo v. Goode. In that case, this Court unequivocally
rejected the imposition of any general federal constitutional duty
upon police supervisory officials to supervise or train police officers;
liability could attach to the supervisory officials only for their own
“direct responsibility” in adopting policies which authorize or ac-
quiesce in the deprivation of constitutional rights. 423 U.S. at 373-
377. The law regarding supervisory officials’ liability under § 1983
was further articulated in the First Circuit in Kostka v. Hogg, 560
F.2d 37 (Ist Cir. 1977), in which the Court of Appeals, applying
Rizzo, flatly held that a complaint which alleged that a breach by a
police chief of his duty to instruct and control his police officers,
resulting in an unjustified shooting by such an officer, failed “even
to plead a constitutional violation”, in the absence of active partici-
pation by the chief in the wrongdoing. 560 F.2d at 40.
Thus, in 1977, when plaintiff's claim arose, Forni could not
reasonably have anticipated that eight years later the Court of Appeals
would find that a single omission in the otherwise full training of
one police officer, on an otherwise adequately trained and well-dis-
ciplined police force, could render him liable for a constitutional
violation committed by that police officer. As the Supreme Court
has stressed, where the applicable law was not clearly established
at the time an action occurred, “an official could not be expected
to anticipate subsequent legal Gevelopments, nor could he fairly be
said to ‘know’ that the law forbade conduct not previously identified
as lawful.” Harlow v. Fitzgerald, supra, 457 US. at 818. Even if
the holding by the Court of Appeals that Forni’s conduct may have
violated Voutour’s rights is correct as a matter of law, which Saugus
and Forni deny, Forni cannot be held to have anticipated the Court
of Appeals’ departure from the law as he understood it in 1977, and
he is entitled to qualified immunity."
‘Nor can Forni’s failure to comply fully in training Officer Vitale with the
requirements of Massachusetts General Laws c. 41, § 96B, requiring regular
27
Conclusion.
Because petitioners believe the decision of the Court of Appeals
in this case drastically expands the liability of municipalities and
their supervisory officials under § 1983, in contravention of this
Court’s decisions and the consensus among other federal courts of
appeals, and presents fundamental issues concerning the nature of
the conduct for which a municipality and its officials may be liable
under § 1983 which should be resolved by this Court, Petitioners
respectfully request that this Court grant a writ of certiorari to review
the judgment of the Court of Appeals.
Respectfully submitted,
GAEL MAHONY,
MICHAEL S. GRECO,
ROBERT G. DREHER,
HILL & BARLOW,
225 Franklin Street,
Boston, Massachusetts 02110.
(617) 423-6200
police officers to be sent to training academies within 9 months of their appoint-
ment as a regular officer, be held to have deprived Forni of his qualified
immunity defense. As this ourt has recently made clear, “officials sued for
constitutional violations do nui lose their qualified immunity merely because
their conduct Violates some statutory or administrative provision.” Davis v.
Scherer, __ U.S. __, 104 S.Ct. 3012, 3020 (1984). As this Court noted in
Davis v. Scherer, Harlow’s holding that officials may lose their immunity by
violating “clearly established statutory . . . rights”, 457 U.S. at 818, speaks
only to a situation where the plaintiff seeks to recover damages directly for
violation of such statutory rights, as in Harlow itself. 104 S.Ct. 3020 n.12.
The Court stated: “Neither federal nor state officials lose their immunity by
violating the clear command of a statute or regulation — of federal or of state
law — unless that statute or regulation provides the basis for the cause of
action sued upon.” /d. The Supreme Court in Davis v. Scherer flatly rejected
the plaintiff's argument that qualified immunity could be lost where an official
violates a statute that does not provide a direct cause of action to the plaintiff,
but merely “advanced important interests or was designed to protect the con-
stitutional rights.” Jd. at 3020.
It is clear that in this case Voutour can assert no cause of action for damages
predicated directly upon a violation of the requirements of G.L. c. 41, § 96B,
for that statute provides a plaintiff no such cause of action. Nor, as the Court
in Davis v. Scherer expressly held, can Forni be deprived of his qualified
immunity defense on the basis that G.L. c. 41, § 96B “protected” Voutour’s
constitutional rights.
28
Appendix.
Table of Contents.
Appendix A — Decision of the United States Court of
Appeals for the First Circuit, dated March 29, 1985 la
Appendix B — Judgment 30a
Appendix C — Memorandum and Order 32a
Appendix D — Order of Court 37a
Appendix E — Memorandum of Decision 39a
Appendix F — Judgment in a Civil Case 45a
Appendix G — Statutes 47a
la
Appendix A.
[PAGE |]
United States Court of Appeals
For the First Circuit
No. 84-1159
JAMES T. VOUTOUR,
Plaintiff, Appellee,
v.
HAROLD VITALE, ET AL.,
Defendants, Appellants.
No. 84-1214
JAMES T. VOUTOUR,
Plaintiff, Appellant,
vs
HAROLD VITALE, ET AL.,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
{Hon. Rya W. Zobel, U.S. District Judge}
Before
Campbell, Chief Judge,
Bownes, Circuit Judge,
and Perez-Gimenez,* District Judge.
* Of the District of Puerto Rico, sitting by designation.
ieee
2a
Richard L. Neumeier with whom James F. Meehan, Cheri
L. Crow and Parker, Coulter, Daley and White were on brief
for James T. Voutour.
Alan Garber with whom Philip A. Mason and Mason and
Martin were on brief for Harold Vitale.
Gael Mahony with whom Michael S. Greco, Robert G.
Dreher and Hill and Barlow were on brief for Town of Saugus
and Fred Forni.
Richard M. Magnan with whom George O. Gregson was
on brief for Howard Wheeler.
March 29, 1985
naan
3a
[PAGE 3]
PER CURIAM. This appeal is from the judgment entered in
a section 1983 civil rights action and pendent state tort claim
arising out of the shooting of plaintiff James T. Voutour by a
Saugus police officer, defendant Harold Vitale. We start with
a capsulated account of the circumstances leading to the shoot-
ing.
THE FACTS
Voutour and two companions, Dennis MacDonald and
Lawrence Dionne, spent the night of Sunday, February 13,
1977, and early Monday morning driving around in an au-
tomobile just acquired that afternoon by Voutour. The car was
in poor condition; the tires were bad, the brakes did not operate
properly, and one headlight was burned out. The car was
neither registered nor insured. Sometime early Monday morn-
ing, Voutour drove to the parking lot of Gibbs Ford. When
he got there, he noticed a police cruiser. The cruiser was
manned by Vitale and a subordinate, defendant Howard
Wheeler. Vitale and Wheeler were looking for a vehicle that
had been involved in an automobile accident earlier that night.
There are two different versions of what happened at the
Ford lot. Wheeler’s version is that he noticed the Voutour
vehicle and started towards it on foot when it suddenly accel-
erated, turned around, passed him, proceeded the wrong way
for a time on an exit ramp off Route | and then drove away.
As the car started to accelerate, Wheeler shouted
[PAGE 4]
“stop” and noted its license plate number as it went by him.
Voutour testified that, because of the condition of his car, he
did not want any problems with the police, so when he saw
the cruiser he turned around, left the parking lot, went the
wrong way for a short distance on the exit ramp, and then
proceeded on his way. He was not aware that the police had
seen the car and heard no command to stop.
Voutour’s intention was to drop MacDonald off near his
home. In order to avoid the police, he took an indirect route.
4a
Before he got to MacDonald’s drop-off corner, Voutour
stopped the car temporarily so MacDonald’s tape deck could
be detached from the dash. He pulled over to the side of the
road, kept the engine running and put the gear shift lever in
the park position. A short time later, Vitale and Wheeler, who
were looking for the Voutour vehicle, passed the parked car,
backed up and stopped the cruiser about a car’s length behind
the Voutour vehicle. After determining that the car was the
same one that they had seen at the Gibbs Ford lot, it was
decided that Wheeler would question the occupants. The
cruiser did not have its flashing blue lights on, nor was the
siren used. Wheeler left the cruiser without wearing his police
hat. There is a dispute as to whether Wheeler had both a gun
and a flashlight in his hands as he approached the car or just
a flashlight. When Wheeler got to the door on the passenger’s
side of the car, Voutour started to accelerate.
[PAGE 5]
The car skidded slightly, grazing Wheeler who grabbed the
door handle and continued to hang onto it as the car moved
forwards.
Again, there are two versions of what happened next. Vou-
tour says that as soon as he realized Wheeler was a policeman,
he started to slow down, opened the door, put his left foot out
and was starting to put the car in park when he was shot.
Vitale testified that he got out of the cruiser, saw the Voutour
vehicle start up with Wheeler being dragged down the road.
He yelled for the car to stop, but it did not slow down. He
then decided that in order to save the life of his partner, he
had to stop the car by shooting the driver. He drew his revolver
and fired at the driver’s shoulder. There is no dispute that the
shot hit Voutour in the neck rendering him a permanent quad-
riplegic.
PROCEDURAL HISTORY
Voutour sued both Vitale and Wheeler under 42 U.S.C.
§ 1983 and also filed a pendent assault and battery claim against
Vitale under Massachusetts law. He brought a section 1983
Sa
action against the Town Chief of Police at the time of the
shooting, Fred Forni, and against the Town of
[PAGE 6]
Saugus.' Over a year before the trial, the district court allowed
motions for summary judgment filed by Wheeler, Forni, and
the Town on all claims against them. The jury returned a
verdict which, in effect, found Vitale not liable on the section
1983 count, but liable on the state assault and battery count;
it awarded Voutour damages against Vitale in the umount of
$1,100,000. Both Voutour and Vitale have appealed.
VITALE JURY VERDICT
The jury found Officer Vitale not liable to Voutour under
section 1983 but liable for assault and battery under the law
of Massachusetts. Both plaintiff and defendant seek to have
this verdict overturned on the ground that written questions
submitted by the jury to the district judge after the case had
gone to the jury, and the judge’s written responses thereto,
were not disclosed to counsel until after the verdict.
At the close of the trial, the court put three special questions
to the jury. Question #1, which was to be answered “yes” or
“no,” was whether defendant Vitale had shot plaintiff under
circumstances in which the use of deadly force was so un-
reasonable as to violate plaintiff's constitutional rights. Ques-
tion #2, which was to be answered in a similar
[PAGE 7]
way, was whether defendant Vitale had been justified under
state law in using deadly force against plaintiff. Question #3,
which had three parts, concerned the amount of damages to
be awarded to compensate plaintiff for his injuries, for the
violation of his constitutional rights, and for other punitive
damages.
During its deliberations, the jury sent the district judge the
following note:
‘Voutour also filed a state assault and battery claim against Wheeler and
state negligence claims against all defendants. These claims seem to have been
abandoned during the course of the litigation and have not been raised by any
of the parties on appeal. Accordingly we do not address them.
6a
Your Honor:
If the answer to question #1 is —no + the answer
to question #2 is — yes — may — we turn to page
two + fill in any dollar amount.
The district court did not notify counsel of this inquiry, but
instead sent the following written response:
Members of the Jury:
You must answer question 3 only if the answer
to Question | is yes and/or the answer to Question
2 is no.
Thereafter, the jury sent another noie to the judge which read:
Your Honor:
This may be a funny question, But is there any
way question #2 can be worded different. We feel
that officer Vitale had a right to shoot to protect his
partner, but Jimmy Vouture (sic) did not know he
was endangering an officer’s life, so he was also
some-what not wrong.
Again, without notifying counsel the judge responded in
writing: ax
[PAGE 8]
Members of the Jury:
I cannot word Question 2 1 other way. It
asks you to answer the only BeBe ait legally
relevant concerning Mr. Voutour’s claim under state
law. That question concerns Mr. Vitale’s conduct
and, particularly, whether he was “justified” in
shooting Mr. Voutour, as I had explained that term.
Ta
The jury then sent the judge a written note asking:
Your Honor:
I hate bothering you again. But could you please
write me a definition of Justification + also write
to me briefly the State Law relative to #2.
Thank you.
At this point, the judge contacted counsel for the first time.
She told them that she had received the latter note and read it
to them. She also informed them that there had been earlier
questions from the jury which she had not disclosed to counsel
because some of these were “too suggestive of what the jury
was doing.’ The judge did not show the earlier notes to counsel
but promised that she would do so after the jury had rendered
its verdict and that she would allow any objections at that
time. The jury was then brought in and the judge issued sup-
plementary instructions on the state law claim.
Thereafter, the jury returned a split verdict, finding for the
defendant Vitale on the section 1983 claim, but for the plaintiff
Voutour on the state assault and battery
[PAGE 9]
claim. The court, as it had promised, later revealed all of the
earlier questions it had received from the jury and its responses.
Vitale filed a motion for judgment n.o.v. or new trial, claiming
that he had been prejudiced by the district court’s secret instruc-
tions. The district court denied the motion.
On appeal Vitale renews his argument claiming that the
district court’s failure to notify counsel of the content of the
jury’s earlier requests was prejudicial and deprived him of the
opportunity to prevent what he characterizes as a compromise
verdict. He is joined by plaintiff who also claims that he was
8a
prejudiced by the district court’s secret instructions to the jury.
Both parties seek a new trial as to all counts.’
[PAGE 10]
We are guided here by the Supreme Court’s holding in
Fillippon v. Albion Vein Slate Co., 250 U.S. 76 (1919), that
“written instructions ought not to be sent to the jury without
notice to counsel and an opportunity to object.” /d. at 81. As
the Court pointed out:
It is not correct . . . to regard the opportunity of
afterwards excepting to the instruction and to the
section 1983 count on which he was unsuccessful. However, at oral argument,
counsel conceded in response to questions put to him that a new trial would
be proper as to everything. The exchange was the following:
JUDGE BOWNES: Why shouldn't there be a trial on everything?
COUNSEL: Well, Your Honor, quite frankly, I’ve been persuaded
that probably the better rule, although we argued for a different
result here, is that there should be a new trial on everything. We
do suggest a way to rationalize having a new trial only on the
federal count, but on reading the reply brief filed by Vitale, we
realize that we have very much an uphill battle on that, given the
way the Supreme Court has construed Rule 59. But | would prefer
a new trial on both counts, as opposed to affirmance as to what
happened in the district court.
JUDGE BOWNES: Well, what are you fighting about? Everybody
wants a new trial.
COUNSEL: . . . Both sides emphasize that the district court made
a mistake in giving secret instructions to the jury without consulting
with counsel.
JUDGE BOWNES: . . . Now, it would appear that you and Vitale
agree that there ought to be a new trial.
COUNSEL: We agree on that.
JUDGE BOWNES: So the only issue as far as you are concerned
is whether or not summary judgment was correct as to Wheeler
and the Town.
9a
manner of giving it as equivalent to an opportunity
to be present during the proceedings. To so hold
would be to overlook the primary and essential func-
tion of an exception, which is to direct the mind of
the trial judge to the point in which it is supposed
that he erred in law, so that he may reconsider it
and change his ruling if convinced of error, and that
injustice
[PAGE 11]
and mistrials due to inadvertent errors may be thus
obviated.
Id. at 82. The Court also held that secret instructions which
incorrectly state the law are “presumptively injurious.” /d.
Other Supreme Court decisions have made clear that even
when the secret communication does not misstate the law, a
new trial may be warranted if it has affected the outcome by
subtly influencing the jury. See United States v. United States
Gypsum Co., 438 U.S. 422, 460-61 (1978) “ogers v. United
States, 422 U.S. 35, 38-40 (1975). See also Vogel v. American
Warranty Home Service Corp., 695 F.2d 877, 881 (Sth Cir.
1983); United States v. Burns, 683 F.2d 1056, 1058-59 (7th
Cir. 1982), cert. denied, 459 U.S. 1173 (1983); Krische v.
Smith, 662 F.2d 177, 179 (2d Cir. 1981); Petrycki v.
Youngstown & Northern Railroad Co., 531 F.2d 1363, 1366-
67 (6th Cir. 1976).
In United States v. Flaherty, 668 F.2d 566 (1st Cir. 1981),
we held that, although subject to the harmless error rule, secret
communications between the judge and the jury create a pre-
sumption of prejudice and that the other party has “a heavy
burden . . . to show that no prejudice resulted.” /d. 602.
Here the notes sent to the judge by the jury suggest that the
jury thought that neither Vitale nor Voutour were wholly at
fault and that the jurors didn’t quite know how to articulate
this in their verdict. In the circumstances, had
[PAGE 12]
counsel been informed of the notes and received an opportunity
to comment,
10a
it is at least conceivable that the court would have framed its
instructions differently and that a different outcome could have
resulted. To be sure, the court’s answers contained no misstate-
ment of the law; and had the opposing party not conceded
prejudice we might hesitate to reverse notwithstanding the
court’s error. Given, however, both Voutour’s and Vitale’s
insistence that the incident was prejudicial, the desire of each
of them for a new trial on these claims, and the fact that a
trial must be had with respect to other related claims, we vacate
and order a new trial with respect to so much of the judgment
as both dismissed Voutour’s section 1983 count against Vitale
and awarded to Voutour the sum of $1,100,000 against Vitale
on the state law assault and battery count.
SUMMARY JUDGMENT
The district court did not permit Voutour’s claims against
Officer Wheeler, Chief of Police Forni, and the Town of
Saugus to go to trial. Instead, it entered summary judgments
in favor of Officer Wheeler, Chief of Police Forni, and the
Town of Saugus more than a year prior to the trial. Voutour
now challenges the court’s granting of summary judgment on
these claims. Our review is confined to an examination of the
materials before the court at the time the rulings were made.
Neither the evidence offered subsequently at the trial
[PAGE 13]
nor the verdict is relevant. Summary judgment should be
granted only if “the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c).
Our standard of review is well established:
In determining whether summary judgment is ap-
propriate, we must “look at the record . . . in the
light most favorable to . . . the party opposing the
lla
motion,” Poller v. Columbia Broadcasting System,
Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7
L.Ed.2d 458 (1962), indulging in all inferences
favorable to this party. United States v. Diebold,
Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8
L.Ed.2d 176 (1962) (per curiam); Santoni v. Federal
Deposit Insurance Corp., 677 F.2d 174, 177 (ist
Cir. 1982); Hahn v. Sargent, 523 F.2d 461, 464 (Ist
Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct.
1495, 47 L.Ed.2d 754 (1976). Reversal of a grant
of summary judgment is required when issues of fact
which were adequately raised before the district court
need to be resolved before the legal issues in the
case may be decided. First National Bank of Arizona
v. Cities Service Co., 391 U.S. 253, 288-90, 88
S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968); Over
The Road Drivers, Inc., v. Transport Insurance Co.,
637 F.2d 816, 818 (Ist Cir. 1980).
Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d
985, 986 (Ist Cir. 1983).
_ It is against this rigorous standard that we proceed to examine
the court’s dismissal of the claims against Wheeler, the Chief,
and the Town.
[PAGE 14]
Officer Wheeler
We consider first the grant of summary judgment in favor
of Officer Wheeler on Voutour’s section 1983 claim against
him. Voutour sought to hold Vitale’s partner, Wheeler, liable
under section 1983 on the theory that Wheeler’s approach to
plaintiff without sufficiently identifying himself as a police
officer was foreseeably linked to Vitale’s later conduct in shoot-
ing Voutour. While it was Vitale’s, not Wheeler’s, conduct
that allegedly deprived Voutour of “rights, privileges, or im-
munities secured by the Constitution and laws,” in purported
12a
violation of section 1983,* Wheeler is said to share responsi-
bility for the ultimate act of violence because of his initiation
of a chain of events which caused Vitale to shoot in defense
of Wheeler. In rejecting this theory, the district court found
that “while Wheeler’s actions might be viewed as having prox-
imately caused plaintiff's injury, as a matter of law the af-
fidavits do not support the conclusion that Wheeler’s acts were
so careless and reckless as to show the utter indifference to
resulting consequences upon which a finding of gross negli-
gence can be predicated.”
[PAGE IS}
On appeal, plaintiff challenges the use of a gross negligence
standard as to Wheeler. He claims that simple negligence, not
gross negligence, is the appropriate standard for a section 1983
claim for deprivation of liberty without due process of law in
violation of the fourteenth amendment. The determination
whether simple or gross negligence applies, and its implications
for this case, are shrouded in the mists that presently envelop
this area of the law.* But, acting
[PAGE 16]
by such lights as are
‘This circuit has recognized that the use of excessive or unreasonable force
or violence by law enforcement personnel resulting in personal injury deprives
a person of liberty without due process of law in violation of the fourteenth
amendment. Landrigan v. City of Warwick, 628 F.2d 736, 741-42 (Ist Cir.
1980). See also Shillingford v. Holmes, 634 F.2d 263, 265 (Sth Cir. 1981);
Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert denied, 414 U.S. 1033
(1973).
*In Parratt v. Taylor, 451 U.S. 527 (1981), the Supreme Court held that
the negligent taking of a prisoner's property as a result of a random and
unauthorized act by a state employee acting under color of law amounted to
a deprivation of property within the context of the fourteenth amendment. /d.
at 536-37. The Court went on to hold, however, that such a deprivation is not
without due process of law (and hence not actionable under section 1983) when
the state provides a post-deprivation tort remedy under which the respondent
can obtain compensation for his less. /d. at 541. This holding has been sub-
sequently extended to intentional deprivation of property. See Hudson v.
Palmer, 52 U.S.L.W. 5052 (July 3, 1984).
It is yet unclear whether this approach will be applied to deprivations of life
or liberty under the fourteenth amendment. See Note, Due Process Application
13a
available, we do not believe that an actor as remote from the
primary civil rights violation as Wheeler is to be held liable
under section 1983.
Wheeler raised a good faith immunity defense under section
1983, and we have recognized the applicability of such a
defense in cases of this nature. See Connors v. McNulty, 697
F.2d 18, 21 (1st Cir. 1983); DeVasto v. Faherty, 658 F.2d
859, 865 (Ist Cir. 1981). See also Pierson v. Ray, 386 U.S.
547 (1967). In Harlow v. Fitzgerald, 457 U.S. 800 (1982),
the Supreme Court se? out the standard to be applied, holding
that “government officials performing discretionary functions
generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory
of the Parratt Doctrine to Random and Unauthorized Deprivations of Life and
Liberty, 52 Fordham L. Rev. 887 (1984) (arguing that the doctrine should be
so applied); Note, Parratt v. Taylor: Don’t Make a Federal Case Out of It,
63 B.U.L. Rev. 1187 (1983) (same); compare with Note, Defining the Paramet-
ers of Section 1983: Parratt v. Taylor, 23 B.C. L. Rev. 1218 (1982) (taking
the opposite view). See also R.A. Smolla, The Displacement of Federal Due
Process Claims by State Tort Remedies: Parratt v. Taylor and Logan v. Zim-
merman Brush Company, U. Ill. L.F. 831 (1982). Some courts have begun
to do so, see, e.g., Thibodeaux v. Bordelon, 740 F.2d 329 (Sth Cir. 1984),
cf. Augustine v. Doe, 740 F.2d 322 (Sth Cir. 1984) (holding that Parratt is
limited to procedural due process violations}, even in cases such as the present
involving use of excessive force in an attempted arrest. See Gilmere v. City
of Atlanta, 737 F.2d 894 (11 Cir.), reh. granted, 737 F.2d 922 (1984).
Plaintiff has relied on Parratt to argue that negligence provides a basis of
recovery under section 1983. But we cannot apply that aspect of Parratt without
also looking into Parratt’s primary teaching, i.e., asking whether the existence
of an adequate state negligence remedy affords sufficient process to vitiate any
section 1983 claim here. A case can be made for such a result, bearing in
mind that Wheeler himself committed no violence against Voutour, being
linkec to the shooting solely by alleged negligence. If section 1983 is to be
reserved for violations of civil rights as commonly understood, it might be
reasonable to hold that although Vitale’s use of excessive force, if proven,
violated section 1983, Wheeler's unwitting negligence did not.
Since, however, Wheeler raised a good faith immunity defense and we are
deciding the issue on that ground, we do not attempt to resolve the partial or
total applicability of Parratt here.
l4a
or constitutional rights of which a reasonable person would
have known.” /d. at 818. Under this
[PAGE 17]
standard we believe the district court was correct in entering
summary judgment for Wheeler.
Judging the facts in the light most favorable to plaintiff, the
record before the district court showed that on the night of the
shooting Wheeler had stealthily approached the Voutour ve-
hicle without prior warning, not wearing his uniform hat and
with a drawn gun in his hand. These facts, while arguably
capable of sustaining a jury finding of negligence or even gross
negligence, could not, we think, support the conclusion that
the particular constitutional violation (i.e.,. the shooting of
Voutour by Wheeler's partner in violation of Voutour’s civil
rights) was a result which a reasonable person in Wheeler's
position “would have known.”
To be sure, a reasonable person in Wheeler’s shoes might
arguably have surmised that some sort of chaotic situation
wou!d arise from the arrestee’s failure to realize he was being
approached by police. But this is different from saying that a
reasonable man in Wheeler’s position would have known as
he was approaching Voutour’s car in the way described that
Vitale would eventually use excessive force against Voutour
— and it was Vitale’s use of excessive force that is the constitu-
tional violation Wheeler would have to have “known” would
occur. The Supreme Court has admonished that the fourteenth
amendment should not be turned into “‘a font of tort law to be
superimposed upon whatever systems may
[PAGE 18]
already be administered by the states.” Paul v. Davis, 424
U.S. 693, 701 (1976). We affirm the district court’s grant of
summary judgment with respect to the section 1983 claim
against Officer Wheeler.
Chief of Police
The court also granted summary judgment, based on such
materials as were then before it, on Voutour’s claims against
the Chief of Police and the Town of Saugus. With respect to the |
tSa
Chief of Police, the complaint makes these allegations: that
the Chief “condoned, encouraged, and acquiesced in defendant
Vitale’s prior use of excessive force and characterized such
conduct as part of defendant Vitale’s duties” and that the Chief
had a duty to undertake “reasonably adequate procedures in
the selection, assignment and training of police officers to
prevent said officers from misusing firearms and from commit-
ting uniawful acts of violence” and “if any selection, assign-
ment and training was done it was undertaken in a reckless
and grossly negligent manner,” all or any of which, it was
alleged, proximately caused the shooting of Voutour. We con-
strue this somewhat ambiguous language to allege a failure to
train the Town’s police officers properly in the use of firearms
and also that it was a custom of the police department to use
excessive force.
As the action against the Chief is based solely on section
1983, our initia! inquiry is “(1) whether the conduct
[PAGE 19]
complained of was committed by a person acting under color
of state law; and (2) whether this conduct deprived a person
of rights, privileges, or immunities secured by the Constitution
or laws of the United States.” Parratt v. Taylor, 451 U.S.
527, 535 (1981). There can be no doubt that the first of these
requirements was met; the conduct in question was committed
by a chief of police acting in his official capacity. The second
requirement contains two distinct elements. To begin with,
there must have been a deprivation of rights, privileges, or
immunities secured by the Constitution or laws of the United
States. Here the deprivation would consist of Vitale’s alleged
use of excessive force in shooting Voutour. See note 3, supra.
The harder question is whether the Police Chiefs conduct can
be said to have caused this deprivation, so as to make the
Chief liable under section 1983. The Supreme Court has firmly
rejected respondeat superior as a basis for section 1983 Kability
of supervisory officials, Monell v. Department of Secial Serv-
eG
16a
ices, 436 U.S. 658, 694 n.58 (1978) (citing Rizzo v. Goode,
423 U.S. 362, 370-71 (1976) ), or municipalities, Monell, 436
U.S. at 691. The Court has said that the language in section
1983, “subjects, or causes to be subjected,” should not be
construed to include vicarious liability, which is based on
considerations of public policy rather than fault or causation.
Nonetheless, lower courts have suggested that the
[PAGE 20]
Statutory language is broad enough to extend liability to those
not personally involved in the deprivation of constitutional
rights. McClelland v. Facteau, 610 F.2d 693, 696 (10th Cir.
1979). Such situations are limited, however, to ones showing
an “affirmative link” between the conduct of the supervisor
and that of the employee. Rizzo, 423 U.S. at 371.
In the case at hand, the plaintiff has advanced two theories
linking the Police Chief’s conduct to the shooting of Voutour
by Officer Vitale: the Police Chief is charged with having
established a policy or custom of using excessive force and
the Chief did not properly train police officers in the use of
firearms.
We agree with the district court that “[p]laintiff has adduced
no evidence to show a pattern of violent police behavior which
might support an inference that the Chief of Police supported
or acquiesced in such behavior.” Even if we were to credit
complaints of police brutality as well as complaints of other
shootings, we cannot see that they form a pattern of police
violence so striking as to allow an inference of supervisory
encouragement, condonation, or even
[PAGE 21]
acquiesence.* Cf.
* Plaintiff, in his brief, makes much of an incident involving Officer Vitale
which occurred on January 10, 1976, at the Hilltop Steak House restaurant.
It was alleged that Officer Vitale, who was on duty with another police officer,
pushed a patron against the wall, put handcuffs on him and took him into
custody without justification. The patron was released within a short time and
rejoined his party. After learning of the incident, the Chief obtained reports
from the officers present and, on the basis of their reports, Vitale was exoner-
ated. A civil suit subsequently brought against the Town by the aggrieved
OOOO
17a
Herrera v. Valentine, 653 F.2d 1220, 1225 (8th Cir. 1981)
(in addition to proving 40 separate incidents of police miscon-
duct, plaintiffs showed that these incidents had been brought
to the attention of supervisory officials).
The claim of lack of police training in the use of firearms
or training that was undertaken in an inadequate manner is,
however, a different matter. In its opinion granting the Chief’s
motion for summary judgment, the district court ‘held that
under section 1983 gross negligence would have to be shown
before liability would attach. The court went on to find that
it might be possible for a jury to find gross negligence on the
part of both the Police Chief and the Town for their failure to
train Officer Vitale, but that nonetheless “summary judgment
for these defendants is still warranted because the affidavits
in no way support the inference that such negligence was the
‘moving force’ behind
[PAGE 22]
or even a proximate cause of plaintiff's injury,” (citing Polk
County v. Dodson, 454 U.S. 312, 326 (1981)).
We agree with the district court that a section 1983 claim
based on lack of proper police training requires, at very least,
proof of gross negligence both as to the Police Chief and the
Town.
We have found no case holding squarely that simple negli-
gence by a police chief in training subordinate police officers
is sufficient to anchor section 1983 municipal liability. In the
light of Monell’s requirement that official policy inust be “the
moving force of the constitutional violation,” 436 U.S. at 694,
and the holding of Rizzo that a general allegation of adminis-
trative negligence fails to state a constitutional claim under
section 1983, 423 U.S. 370-377, we believe that significantly
patron was settled. Distressing as Vitale’s conduct might have been on this
occasion, this isolated incident cannot form the predicate for the customary
use of excess force by the Saugus Police Department. Landrigan v. City of
Warwick, 628 F.2d 736, 746 (ist Cir. 1980).
|
18a
more than simple negligence in police training is necessary
for municipal liability under section 1983. Like most other
courts that have addressed the matter, we hold that the super-
visor must demonstrate at least gross negligence amounting to
deliberate indifference, and that this conduct must be causally
linked to the subordinate’s violation of plaintiff’s civil rights.
See Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir. 1983)
(“failure to train must constitute gross negligence amounting
to conscious indifference”); Hays v. Jefferson County, 668
F.2d 869, 874 (6th Cir. 1982) (municipal liability only where
there is a
[PAGE 23]
complete failure to train or training is so reckless or grossly
negligent that future police misconduct is almost inevitable);
Herrera v. Valentine, 653 F.2d at 1224 (failure to train or
grossly negligent training); Owens v. Haas, 604 F.2d 1242,
1246 (2d Cir. 1979) (gross negligence or “deliberate indiffer-
ence’); Leite v. City of Providence, 463 F. Supp. 585, 591
(D.R.I. 1978) (simple negligence not enough, “training must
be nonexistent or reckless, or grossly, palpably, and culpably
neglected”).
When ruling on the motion for summary judgment, the
district court concluded that the record contained sufficient
facts from which a jury could have found gross negligence on
the part of both the Police Chief and the Town. We agree with
this conclusion, for reasons mentioned below. The district
court went on to say, however, that the record did not admit
of an inference that such gross negligence was the proximate
cause of plaintiff's injury. With this latter point we disagree.
After reviewing the record that was then before the court in
the light most favorable to the plaintiff, we conclude that there
was a genuine issue of material fact concerning whether the
alleged failure to properly train Officers Vitale and Wheeler
was the proximate cause of Vitale’s alleged use of excessive
force against Voutour.
19a
With respect to proof of gross negligence, this case is dis-
tinguishable from many others in that the materials
[PAGE 24]
before the court indicated that the Police Chief had violated
State law by failing to provide Vitale, and possibly also
Wheeler, with any police training whatsoever.
Massachusetts law requires that
“[e]very person who receives an appointment to a
position on a permanent full-time basis in which he
will exercise police powers in a municipal police
department . . . shall prior to exercising any police
powers, be assigned to and satisfactorily complete
a prescribed course of study at a regional or municipal
police training school, approved by the Mas-
sachusetts criminal justice training council... .
Mass. Gen. Laws ch. 41, § 96b (1979) (emphasis added). The
Statute further provides that every regular full-time municipal
police officer “shall be assigned to and shall attend a regional
or municipal police training school . . . at such intervals and
for such periods of time as the council may determine.” /d. It
appears that, in direct violation of this statute, Officer Vitale
never attended a police training school until after the Voutour
shooting, a perio’ of over seven years from the date of his
appointment as a full-time police officer on the Saugus Police
Department. The reason given by che Chief for the failure to
follow the statute was that Vitzie had received firearms training
in the Army and police training as a reserve officer on the
Revere Police Department. The statute itself, however, is man-
datory in its terms, containing no exceptions. The extent of
Vitale’s
[PAGE 25]
training as a reserve officer was not documented, but the statute
applies to full-time police officers, not reserves, and there is
no evidence that Vitale attended an approved police
EE eS SL
20a
training school prior to the shooting. Nor, given the difference
in missions between the military and the police, is it clear that
Vitale’s Army training would be a satisfactory substitute for
the statutory requirements. According to his deposition, Vi-
tale’s firearms training in the Army was confined to the M |
and M 14 — both rifles. There is no mention of handgun
training. Moreover, it seems likely that police training, in
addition to teaching proficiency in the use of handguns, would
include training as to the circumstances in which a police
officer should not shoot.
The Chief testified in answers to interrogatories that neither
Vitale nor Wheeler received any training in the use of firearms.
Vitale’s testimony was that he owned a .38 Smith and Wesson
revolver and that he trained himself in the use of it.
In the record before the district court was a letter from one
of the Chief’s subordinates detailing three separate incidents
of the unjustified use of service revolvers by members of the
Saugus Police Department.° The letter which
[PAGE 26]
was written six months prior to the Voutour shooting, contains
the following:
How does one compensate for the lost [sic] of a
life or limb? It appears that the 1:00 a.m. to 9:00
a.m. early morning division are not getting any com-
petent men (only bodies), as this is the third shooting
on division in question with three separate officers
on three separate occasions. One of the shooting
[sic] involved a defendant being shot in the abdomen
requiring hospitalization.
It also appears that efforts are becoming futile
when it comes to training some officers ragarding
[sic] the use and handling of their service revolver.
Several officers that I have spoken to fear for their
“None of these involved Vitale.
2la
safety as well as the public safety when we employ
men such as Officer {name deleted]. I would not like
to see this department learn through trial and error
after a life or limb has been taken.
We think the foregoing indicated a triable issue concerning
whether or not the Police Chief had been grossly negligent to
the point of conscious indifference with respect to police train-
ing, and in particular Vitale’s training.’ Whether the record
also reflected a causal connection between the lack of training
and Vitale’s actions is perhaps closer, but we believe it did.
Viewing the facts in a light most
[PAGE 27]
favorable to plaintiff, 1t could be inferred that the arrest cul-
minating in Vitale’s shooting of Voutour, and the shooting
itself, were so mishandled in their various details as to indicate
that trained officers would not have acted in this manner.
Also relevant to the issue of causation was the affidavit of
James F. Fyfe, a putative expert witness for the plaintiff in
police training and procedure, stating, among other things,
that the shooting of Voutour was a highly predictable result
of the inadequate training received by the Town police officers
and particularly Vitale’s lack of basic police training. The Fyfe
affidavit, if admissible under Fed. R. Civ. P. 56(e), obviously
provides additrnal support for causation. But we need not
consider the question of its admissibility since, even without
it, we think there was enough evidence from which causation
might reasonably be inferred to make summary judgment inap-
propriate.
’Like Wheeler, Chief Forni raised a qualified good faith immuniiy defense
against Voutour’s section 1983 claim. Unlike Wheeler’s situation, however,
we believe that a wrongful shooting would be the type of result that would be
likely to arise — and hence be “known” under Harlow — from a failure to
train police officers in the proper use of weapons.
22a
Thus viewing the facts in the light most favorable to plaintiff,
we think the district court erred in granting summary judgment
for the Chief on the issue of adequate police training. At trial,
of course, the district court will have the usual opportunity to
review the legal sufficiency of the evidence Voutour actually
submits. We hold only that under standards applicable to a
motion for summary judgment, Voutour was entitled to proceed
to trial on this matter. The court,
[PAGE 28]
therefore, erred in granting summary judgment against the
Police Chief on Voutour’s section 1983 claim.
Town of Saugus
Since we have sustained the district court's grant of summary
judgment to the Police Chief on the part of the claim that he
established or permitted a custom of excessive police violence,
we also affirm, for the same reasons, the summary judgment
for the Town on that part.
With respect to the adequacy of the training given to the
defendant officers, much of the same reasoning that caused
us to vacate the granting of summary judgment against the
Chief leads us to vacate the grant of summary judgment for
the Town of Saugus. This does not mean, however, that the
Town would be automatically liable if there were a finding
that the Chief’s failure to properly train Vitale and, to any
extent relevant, Wheeler, rose to the standard of gross negli-
gence amounting to conscious indifference. The evidence may
demonstrate that the Town was not aware of the Chief’s dere-
lictions, assuming these are proven. The Town Manager, in
answer to pretrial interrogatories, stated that the Town followed
the statutory mardate for police training as a matter of policy.
There is nothing in the record to indicate whether the Town
knew of the Chief’s statutory disregard in Vitale’s case. The
matter was not pursued by the parties or addressed by the
district court at the time the motion for summary
[PAGE 29}
judgment was under consideration. The Town could only be
found liable
‘ome me
23a
if it or the Town Manager* knew or should have known that
the Chief was not training his police officers properly and then
failed to take reasonable measures to rectify the situation. See
Languirand v. Hayden, 717 F.2d at 227-28. See also Bennett
v. City of Slidell, 728 F.2d 762 (Sth Cir. 1984) (en banc).
Whether or not there is sufficient evidence in the record to
create a jury question on this score will be for the district court
to determine.
THE EVIDENTIARY RULINGS
Vitale has objected to four areas of testimony which he
claims were prejudicial and irrelevant. Since these objections
may arise on retrial, we deem it advisable to rule on them
now. We note first that any evidence which is harmful to a
party is in that sense prejudicial; the question, therefore, is
whether “its probative value is substantially outweighed by
the danger of unfair prejudice.” Fed. R. Evid. 403.
The first evidentiary area was the admission of testimony
to the effect that police officers, other than Vitale and Wheeler,
who arrived on the scene after the shooting beat up the pas-
sengers in the Voutour automobile. This certainly might have
a prejudicial effect on Vitale’s case.
[PAGE 30]
As we read the trial transcript, the probative purpose of the
testimony was threefold: to show how certain marks got on
the Voutour automobile, an important and disputed factual
issue; to explain the testimony of passenger MacDonald on
cross-examination that he had testified previously that he would
like to get even with the Saugus police; and to show the position
of the passengers in the car. Under the circumstances, the
district court’s ruling that the probative value of the testimony
outweighed the danger of unfair prejudice was not, in our
view, error. The danger was minimized by the court’s instruc-
tion at the time the |
“Under the Town ordinances and bylaws, the Town Manager had the respon-
sibility for the hiring of police officers and had some supervisory authority
over the Chief of Police.
24a
evidence was admitted, and repeated in the charge, that the
beating of the passengers “has nothing to do with what Mr.
Vitale did or did not do in shooting Mr. Voutour.”
Secondly, Vitale objects to Voutour’s testimony that after
the shooting he heard a police officer say: “This is going to
be a very hush-hush case.” Contrary to the representation in
Vitale’s brief, it is not clear that this statement was not made
by Vitale. Voutour testified that he did not know who any of
the police officers were that night, and that the statement was
made by the officer who checked his pulse right after the
shooting. There was evidence from which the jury could have
found that Vitale was the one who checked Voutour’s pulse
and made the “hush-hush” statement
[PAGE 31]
to Wheeler. There was no abuse of discretion in admitting the
testimony.
Finally, Vitale objects to the testimony of the ambulance
attendant that he was not informed by the police that Voutour
had been shot. The attendant’s testimony was that the police,
he did not know which officer, told him that Voutour was a
motor vehicle accident victim and it was ‘not-until Voutour
was examined at the hospital that he learned that Voutour had
been shot. This testimony was admissible to impeach Vitale’s
testimony that he had told the ambulance driver and the atten-
dant that Voutour had been shot.
THE REQUESTED JURY INSTRUCTIONS
For the sake of completeness, and to forestall this objection
arising upon retrial, we address the plaintiff's claim that the
district court erred in failing to explicitly instruct the jury that
the defendant had no more right under Massachusetts law than
an ordinary citizen to use deadly force. It appears to be an
accurate proposition that the law of Massachusetts does not
grant police officers any more right than an ord’ «ry citizen
to shoot someone to protect a third person. It is »ur opinion,
however, that an instruction to this effect would ve, at best,
irrelevant and, at worst, misleading.
25a
The district court instructed the jury that the crucial question
in plaintiff's section 1983 claim was whether
[PAGE 32]
the defendant’s use of force was unreasonable and excessive.
In not allowing an independent good faith defense to the section
1983 action, the district court implicitly recognized that Officer
Vitale in his official capacity had no special privilege or enti-
tlement to shoot the plaintiff. The district court informed the
jury that the police privilege to use deadly force to arrest a
felon was not in issue. She instructed the jury to take into
account all circumstances in determining whether Cfficer Vit-
ale’s use of deadly force to protect his partner was unreasonable
and excessive. The jury was asked to consider the fact that
Vitale was a senior officer in a patrol car and Wheeler was a
reserve officer, to consider whether Wheeler’s life was in fact
in danger, whether Wheeler would have been entitled to use
force for himself, and whether a reasonable person in the
position of Vitale would have thought force necessary to protect
Wheeler. This instruction is consistent with the law of Mas-
sachusetts.
While the issue of a police officer’s use of force for the
purpose of protecting a third person has not been directly
discussed by the Massachusetts Supreme Judicial Court, its
treatment of a police officer’s use of deadly force to effect an
arrest indicates that no distinction would be drawn between a
police officer’s use of deadly force to protect and a private
citizen’s use of deadly force to protect. In Julian v. Randazzo,
403 N.E.2d 931 (1980), a police officer’s
[PAGE 33]
use of deadly force to effect an arrest was found to be limited
in the same way a private citizen’s use of such force to effect
an arrest would be limited. /d. at 934. Where the Massachusetts
courts have considered the use of deadly force by a private
citizen to protect a third person, they have adopted a reason-
ableness standard. Commonwealth v. Martin, 341 N.E.2d 885,
891 (1936).
26a
This standard, however, “may depend in part upon the re-
lationship of the persons involved.” /d. Consequently, Vitale’s
official status as a police officer, while giving him no special
rights, remained an important consideration in the jury's assess-
ment of the events. The issue of whether the defendant acted
reasonably is not at all dependent upon any equality of rights
between police officers and private citizens, but rather upon
a determination of whether the defendant’s use of force was
excessive in the circumstances. In the circumstances, Vitale
was a police officer and Wheeler was his partner. Vitale’s
Status as a police officer cannot be eliminated from the cir-
cumstances, nor should it be. The standard of reasonableness
relates back to what is reasonable conduct for a person in the
actor’s position. That police officers and other citizens have
equal rights to use discretion in protecting one another and
equal rights to use their own judgment and act accordingly is
not relevant to a standard of reasonableness which is dependent
upon all the variables
[PAGE 34]
present in the situation. The ar, :lysis involved must go deeper
than the presumed equality of rights and the instruction re-
quested was properly rejected.
SUMMARY
So much of the judgment as awarded damages to Voutour
against Vitale on the claim under Massachusetts law for assault
and battery is vacated. The part of the judgment dismissing
Voutour’s section 1983 claim against Vitale is also vacated.
Both claims are remanded for a new trial.
The summary judgment in favor of Wheeler on the section
1983 claim against him is affirmed.
The summary judgments in favor of the Chief of Police and
Town of Saugus on Voutour’s section 1983 claims against
them based on the contention that they established a policy or
custom of using excessive force are affirmed.
The summary judgments in favor of the Chief of Police and
Town of Saugus on Voutour’s claims against them under sec-
=" Sw
i
27a
tion 1983 alleging their responsibility for inadequate police
training are vacated, and these claims are remanded for further
proceedings not «consistent herewith.
Affirmed in j 2:2, eversed in part, and remanded for further
proceedings consistent with this opinion.
[PAGE 35]
Bownes, Circuit Judge (concurring). I concur in the result
of the per curiam opinion, but write specially to express my
disagreement with two aspects of the analysis found therein.
First, I believe there is no need to rely upon tort concepts of
negligence or gross negligence to determine whether liability
will attach under § 1983. When the per curiam opinion uses
this tort language, it is not really discussing the presence of
tort negligence or gross negligence, but simply the issue of
foreseeability of consequences. Foreseeability as a factor of
§ 1983 liability is different than foreseeability as a factor of
tort liability. Negligence and gross negiigence are defined by
reference to common law concepts of duty of care; foreseeabil-
ity under § 1983 is defined by reference to constitutional and
statutory standards which a reasonable government official can
be expected to know, Harlow v. Fitzgerald, 457 U.S. 800,
818-19 (1982). As a result, conduct which may be viewed as
grossly negligent is not necessarily conduct for which liability
may attach under § 1983. The per curiam opinion appears to
recognize this in its analysis of the claim against Officer
Wheeler; although Officer Wheeler’s conduct might sustain a
jury finding of gross negligence, it could not sustain a jury
finding of liability under § 1983 because the constitutional
repercussions of his conduct were not sufficiently foreseeable.
Given this divergence and the different focuses of tort law and
§ 1983, I think it would be both more accurate and less con-
fusing to avoid the language of tort law in determining liability
under § 1983. Thus the analysis of the claim against Chief
28a
Forni, while it is couched in terms of gross negligence, could
be quite
[PAGE 36]
easily recast along the lines of the analysis of the claim against
Officer Wheeler: whether the constitutional repercussions of
his conduct were sufficiently foreseeable to justify holding
him liable under § 1983.
My second objection to the analysis found in the per curiam
opinion stems from the requirement that a finding of gross
negligence as opposed to simple negligence is necessary for
supervisory liability. Leaving aside my objections to the use
of these tort concepts, what this results in is a requirement
that the likelihood or foreseeability of constitutional repercus-
sions be very high before liability attaches under § 1983. While
I recognize the per curiam opinion follows the vast majority
of courts in requiring a level of foreseeability comparable to
that required for a finding of gross negligence, I find little
justification for this. The Supreme Court has never directly
addressed this issue and I do not believe that such a high
standard can be inferred from its other § 1983 decisions. In
particular, I do not read either Rizzo v. Goode, 423 U.S. 362
(1976), or Monell v. Department of Social Services, 436 U.S.
658 (1978), to foreclose a lower standard of foreseeability —
one comparable to simple negligence. Neither the Rizzo re-
quirement of an “affirmative link” between the constitutional
deprivation and the challenged conduct, 423 U.S. at 671, nor
the Monell requirement that official policy be the “moving
force of the constitutional violation,” 436 U.S. at 694, speak
to more than the requirement that there be an affirmatively
shown causal connection between the challenged conduct and
the constitutional deprivation. In Monell, the Court
[PAGE 37]
characterized Rizzo as having rejected respondeat superior as
a basis for § 1983 liability, thereby rejecting vicarious liability
based on considerations of public policy rather than fault or
causation.
29a
I suggest that the “objective reasonableness” standard of
qualified immunity set out in Harlow, 457 U.S. at 818, requires
a test of “objective foreseeability” which is lower than the one
imposed by the gross negligence standard. If the knowledge
expected of government officials is that which a reasonable
person could be expected to have, the foresight expected of
government officials should be the same — that of a reasonable
person. As a practical matter, this lower standard would have
no effect on the results in this case.
There is one final point which needs to be addressed. In a
footnote discussing the possible application of Parratt v.
Taylor, 451 U.S. 527 (1981), to deprivations of life or liberty,
the per curiam opinion states that it might be reasonable to
hold that state negligence remedies afford sufficient process
for negligent deprivations of life or liberty. I do not believe
that Parratt should be extended beyond deprivations of prop-
erty. See Parratt, 451 U.S. at 545 (Blackmun, J., concurring),
Hudson ¥. Palmer, 52 U.S.L.W. 5052, 5058 n.4 (U.S. July
3, 1984) (Stevens, J., concurring in part and dissenting in
part). Life and liberty interests are such that due process cannot
be satisfied procedurally by the provision of post-deprivation
remedies. At some point, “procedural due process shades into
substantive due process, and Parratt becomes
[PAGE 38]
inappii:.able.” Thibodeaux v. Bordelon, 740 F.2d 329, 338-39
n.9 (5th Cir. 1984).
30a
Appendix B.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 84-1159.
JAMES T. VOUTOUR,
Plaintiff, Appellee,
V.
HAROLD VITALE,
Defendant, Appellant.
No. 84-1214.
JAMES T. VOUTOUR,
Plaintiff, Appellant,
¥.
HAROLD VITALE, ET AL.,
Defendants, Appellees.
JUDGMENT
Entered: March 29, 1985
These causes came on to be heard on appeal from the United
States District Court for the District ofp MASSACHUSETTS,
and was argued by Counsel.
Upon consideration whereof, It is now here ordered, ad-
judged and decreed as follows: The verdict of the jury is set
aside, the judgment of the district court on the jury verdict is
vacated. The summary judgment in favor of Wheeler on the
section 1983 claim against him is affirmed. The summary
3la
judgments in favor of the Chief of Police and Town of Saugus
on Voutour’s section 1983 claims against them based on the
contention that they established a policy or custom of using
excessive force are affirmed. The summary judgments in favor
of the Chief of Police and Town of Saugus on Voutour’s claims
against them under section 1983 alleging their responsibility
for inadequate police training are vacated. The causes are
remanded to the District Court for further proceedings consist-
ent with the opinion filed this day. No Costs.
By the Court:
/s/ Francis P. Scigliano
Clerk.
32a
Appendix C.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CiRCUIT
No. 84-1159
JAMES T. VOUTOUR,
Plaintiff, Appellee,
v.
HAROLD VITALE, ET AL.,
Defendants, Appellants.
No. 84-1214
JAMES T. VOUTOUR,
Plaintiff, Appellant,
v.
HAROLD VITALE, ET AL.,
Defendants, Appellees.
Before
Ca. pbell, Chief Judge,
Bownes, Circuit Judge,
and Perez-Gimenez,* District Judge.
* Of the District of Puerto Rico, sitting by designation.
33a
MEMORANDUM AND ORDER
Entered May 8, 1985
While the petition for rehearing correctly points out several
lapses in the statement of facts in our opinion, which we correct
below, we do not find, after careful review, that these affect
or should affect our determination that the issues of the possible
liability of Chief Forni and the Town of Saugus should not be
resolved on a motion for summary judgment. Viewing the
facts most favorably for plaintiff, we think a sufficient showing
was made of genuine issues of material fact concerning whether
or not the Chief and Town are liable under 42 U.S.C. § 1983
for having violated the plaintiff's constitutional rights.
Our determination in this regard does not, as stated on page
27 of our opinion, foreclose defendants’ right at the close of
evidence to seek the district court’s review of the sufficiency
of the evidence by motion for a directed verdict.' By then,
especially after examination and cross-examination of wit-
nesses, see C. Wright & A. Miller, Federal Practice & Pro-
cedure: Civil § 2532 (1971), the parties may well have presented
a far more complete and meaningful picture of what training
Vitale had received and what the Chief and Town of Saugus
knew or had reason to know. The district court will be able to
determine, as a matter of law, whether a jury has a sufficient
basis on that record for finding that the Chief was grossly negli-
gent to the point of conscious indifference with respect to
Vitale’s training, and also whether there is sufficient evi-
‘In respect to the Town of Saugus we also emphasized in our opinion the need
to prove not only that the Chief had been grossly negligent to the point of conscious
indifference with respect to training Vitale, but that the Town, through its Town
Manager or otherwise, knew or should have known of the Chief's dereliction.
See pages 28-29. This issue may be pursued on remand by summary judgment
procedures as well as at trial.
34a
dence to support a verdict against the Town of Saugus. See
pages 28-29. Our present ruling should not be understood as
necessarily prejudging such a motion.
We must mention a further point. On January 8, 1985 the
Supreme Court heard argument in Oklahoma City v. Tuttle,
No. 83-1919, 53 U.S.L.W. 5300. The Court’s decision in that
case could be highly significant with respect to the claim against
the Town of Saugus, since the issue before the Court involves
determination of the circumstances in which a municipality is
liable for misconduct of a police officer. Tuttle could also shed
some further light on the law pertaining to the claim against
Chief Forni. Needless to say, when this case goes back to the
district court, this circuit’s directions in the current opinion
must yield to any rulings the Supreme Court may by then make
in Tuttle or elsewhere. To the extent the Supreme Court in
Tuttle lays down principles that ciffer from any of our present
rulings, the district court on remand may and should apply its
best understariding of the Court’s decision without further ap-
plication to us.
Our opinion is amended as follows:
(1) On page 24, delete lines 2-20 and replace with the
following:
state law by failing to provide Vitale, with required
police training.
At the time of the facts Massachusetts law required,
Every person who receives an appointment
as a regular police officer on a permanent full-
time basis in any city or in any town, .. . shall,
within nine months of the date of his appoint-
ment, be assigned to and shall attend a police
training school approved by the Massachusetts
police training council for a course of study
lasting at least six weeks and shall satisfactorily
complete such course... .
37a
Appendix D.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 84-1159.
JAMES T. VOUTOUR,
Plaintiff, Appellee,
v.
HAROLD VITALE,
Defendant, Appellant.
No. 84-1214.
JAMES T. VOUTOUR,
Plaintiff, Appellant,
vs
HAROLD VITALE, ET AL.,
Defendants, Appellees.
Before
CAMPBELL, Chief Judge,
COFFIN, BOWNES, BREYER AND TORRUELLA,
Circuit Judges.
ORDER OF COURT
Entered: May 9, 1985
38a
The panel of judges that rendered the decision in these cases
having denied the petition for rehearing submitted by appellees,
Town of Saugus and Fred Forni and their suggestion for the
holding of a rehearing en banc having been carefully considered
by the judges of the Court in regular active service and a
majority of said judges not having voted to order that the
appeal be heard or reheard by the Court en banc,
It is ordered that the suggestion for rehearing en banc be
hereby denied.
By the Court:
/s/
Clerk.
39a
Appendix E.
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 79-2387-Z
JAMES T. VOUTOUR
VS.
HAROLD VITALE, et al.
MEMORANDUM OF DECISION
ZOBEL, D.J.
Plaintiff Voutour brings this action under 42 U.S.C. § 1983
alleging that his constitutional rights have been violated by
Harold Vitale and Howard Wheeler, two officers employed
by the Saugus Police Department. Plaintiff names also as de-
fendants the Town of Saugus and the Town’s former Chief of
Police, Fred Forni. Specifically, plaintiff charges that he was
intentionally and unjustifiably shot by Officer Vitale and that
Officer Wheeler played an important role in his shooting. The
plaintiff also claims that the Town and Chief Forni violated
his rights by condoning, encouraging and acquiescing in prior
violent acts committed by Officer Vitale, by failing to discharge
their duty to train officers in the responsible use of firearms
and by encouraging the commission of violent acts in general
by officers on the police force. All defendants have moved
for summary judgment.
Motion of Defendant Vitale.
Defendant Vitale’s motion for summary judgment is denied.
There is a genuine dispute as to the material facts surrounding
40a
actions which occurred just prior to the shooting. Vitale claims
that he shot at plaintiff's car because the vehicle was accelerat-
ing and endangering the life of his partner, defendant Wheeler,
who had slipped, had grasped the car door handle and was
being dragged by the car and about to fall under its wheels.
When the Court views the facts in the light most favorable to
the plaintiff, however, it appears that Vitale unjustifiably shot
the plaintiff after the car had slowed and as the plaintiff was
stepping onto the ground. Such discrepencies between sworn
versions of the facts cannot be resolved on summary judgment.
Motions of Defendants Saugus and Forni.
In Monell v. Department of Social Services of the City of
New York, 436 U.S. 658, 690 (1978) the Supreme Court held
that local governing bodies may be sued under § 1983 when
the action which deprives a plaintiff of constitutional rights
“implements or executes a policy statement, ordinance, regu-
lation or decision officially adopted and promulgated by that
body’s officers.”’ Absent an explicit policy statement or regu-
lation, local governments may still be sued “for constitutional
deprivations visited pursuant to governmental “custom.”” 436
U.S. at 690-1
In addition to showing that he was deprived of a constitu-
tional right without due process of law, plaintiff must satisfy
two prerequisites to liability. He must show that the defendant's
actions were intentionally injurious or grossly negligent, and
that defendant's conduct was a proximate cause of plaintiff's
injuries. Although several circuits have held that merely neg-
ligent acts may constitute § 1983 violations,' the majority view
is that acts must be grossly negligent before they rise to the
level of a constitutional violation. Owens v. Haas, 601 F.2d
‘See Smith v. Hill, 510 F.Supp. 767 (D. Utah, 1981) (collecting cases).
4la
1242, 1246 (2d Cir. 1979), cert. denied, 444 U.S. 980 (1979);
Bonner v. Coughlin, 545 F.2d 565, 567-9 (7th Cir. 1976) (en
banc), cert. denied, 435 U.S. 932 (1978); Smith v. Hill, 510
F.Supp. 767, 772-3 (D. Utah, 1981) (collecting cases); Leite
v. City of Providence, 463 F.Supp. 585, 588-91 (D.R.1. 1978).
The Court of Appeals in this circuit has held that, at least
where the provision of medical care to prisoners is concerned,
“[mJere negligence, in the absence of conduct which shocks
the conscience,” is not actionable under § 1983. Page v.
Sharpe, 487 F.2d 567, 569 (1973). Although the holding in
Page may not extend to this case and the degree of culpability
required may depend on the nature of the constitutional right
alleged to have been violated, see Baker v. McCullan, 443
U.S. 137, 139-40 (1979), I am persuaded that gross negligence
is a prerequisite to a finding of liability under § 1983 in this
case. The majority position comports with the Civil Rights
Act’s prophylactic purpose of deterring the abuse of official
power, Smith v. Hill, 510 F.Supp. at 772, and with the Supreme
Court's declaration that the Fourteenth Amendment is not “a
font of tort law to be superimposed upon whatever systems
may already be administered by the States.” Paul v. Davis,
424 U.S. 693, 701 (1976).
Even when all inferences are drawn in favor of the plaintiff,
the affidavits filed in opposition to the motion for summary
judgment do not establish that defendants Forni and the Town
of Saugus intentionally deprived plaintiff of any rights or were
grossly negligent in training police officers in the responsible
use of firearms or in responding to complaints regarding im-
proper police conduct. The Department promulgated a policy
prohibiting the discharge of firearms except during target prac-
tice or in extremely exigent circumstances. This policy was
communicated to defendant Vitale.” Moreover, it is undisputed
Plaintiff has moved to strike as hearsay portions of an affidavit submitted
by defendant Forni in support of the motions for summary judgment. These
Leiter eenieaeiieineeeonenlll
42a
that officers were discharged as a result of both investigations
into the use of firearms by police which were conducted upon
the receipt of complaints during the four years prior to the
shooting of the plaintiff. Plaintiff has adduced no evidence to
show a pattern of violent police behavior which might support
an inference that the Chief of Police supported or acquiesced
in such behavior. Compare Black v. Stephens, 662 F.2d 181
(3rd Cir. 1981), cert. denied, U.S. __.,, 102 S.Ct. 1646
(1982); Herrerra v. Valentine, 653 F.2d 1220 (8th Cir. 1981);
McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979).
Insofar as plaintiff asserts a pattern of violent activity on
the part of officer Vitale, the evidence of only one prior com-
plaint against the officer is insufficient as a matter of law,
particularly in light of the undisputed fact that that complaint
involved neither the infliction of serious injury nor the use of
a firearm. No reasonable inference cov’ Se «rawn that this
incident, involving the restraining of a pajfon at a crowded
restaurant, shouid have put Foini or Sxugus on notice that
Vitale was irresponsible in his use of firearms.
The only act of defendants Forni or Saugus which might
possi“ly amount to gross negligence is their failure to send
Officer Vitale to a police training school within nine months
of his appointment, as was then required by Mass.Gen.Laws
ch. 41 § 96B. Vitale became a reserve officer in 1973 and a
regular officer in 1975 but did not attend a training course until
portions deal with whether Forni provided the policy on firearms to all members
of the police force. The Court need not rule on this motion because Vitale has
stated in his affidavit of August 6. 1982 that he received a copy of the policy.
That other members of the force may or may not have received copies is
irrelevant to the question of whether there was any gross negligence on defend-
ants’ part which proximately caused plaintiff's injuries.
Plaintiff has also moved to strike portions of Forni’s affidavit dealing with
target practice. The Court need not rule on this part of the motion, either,
since Officer Forni’s accuracy as a marksman is not, as plaintiff admits in his
Memorandum in Opposition to Defendants’ Motions, an issue in this case.
43a
after the 1977 shooting. A jury might be jusjtified in finding
that this was the sort of “indifference to present legal duty and
. utter forgetfulness of legal obligations so far as other
people may be affected” which constitutes gross negligence
under Massachusetts law. Altman v. Aronson, 231 Mass. 588,
591, 121 N.E. 505, 506, cited in Boston & Maine Railroad
v. Aetna Casualty and Surety Co. 329 F.2d 602, 605 (Ist Cir.
1964). Even if this is so, however, summary judgment for
these defendants is still warranted because the affidavits in no
way support the inference that such negligence was the “mov-
ing force” behind or even a proximate cause of plaintiff's
injury. Polk County v. Dodson, J.0 enening SOR Bee.
445, 454 (1981).
Motion of Defendant Wheeler.
Defendant Wheeler's motion is also granted. Viewing the
facts in the light most favorable to the plaintiff, Officer Wheeler
silently approached plaintiff's car from behind, drew his gun
and did not identify himself as a police officer. While
Wheeler's actions might be viewed as having proximately
caused plaintiff's injury, as a matter of law the affidavits do
not support the conclusion that Wheeler's acts were so careless
and reckless as to show the utter indifference to resulting
consequences upon which a finding of gross negligence can
be predicated. *
‘Defendants have moved to strike the affidavit submitted in opposition to
defendants’ motions by James Fyfe, an apparent expert on police practices.
Since the Court has determined that summary judgment is proper for defendants
Form, Town of Saugus and Wheeler, it is unnecessary to rule on their motions
to strike. it is also unnecessary for the Court to rule on defendant Vitale’s
motion to strike since even without Fyfe’s affidavit the documents filed reveal
a genuine dispute about material issues of fact concerning the events im-
mediately preceding the shooting of the plaintiff.
44a
CONCLUSION
For the reasons stated above, the motion of defendant Vitale
for summary judgment is denied. The motions of defendants
Forni, Town of Saugus and Wheeler are allowed.
November 7, 1982 /s/Rya W. Zobel
DATE DISTRICT JUDGE
45a
Appendix F.
JUDGMENT IN A CIVIL C ASE
DISTRICT
United States District Court MASSACHUSETTS
CASE TITLE DOCKET NUMBER
JAMES T. VOUTOUR CA 79-2387-Z
V. NAME OF JUDGE OR MAGISTRATE
HAROLD VITALE,ETAL RYAW.ZOBEL
Jury Verdict. This action came before the Court and a
jury with the judicial officer named above presiding. The
issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing
before the Court with the judge (magistrate) named above
presiding. The issues have been tried or heard and a deci-
sion has been rendered.
-ITIS ORDERED AND ADJUDGED
In accordance with the jury verdict and that judgment is entered
for the plaintiff James T. Voutour against the defendant Harold
Vitale on the state claim in the amount of $1,100,000, plus
interest at 12% from November 30, 1979 to the present in the
amount of $536,433.32, for a total judgment of $1 ,636,433.32.
46a
And it is further ordered, in accordance with the memorandum
of decision dated November 2, 1982, that judgment is entered
for the defendants Howard Wheeler, Fred Forni and Town of
Saugus.
Approved as to form:
/s/
Rya W. Zobel
UNITED STATES DISTRICT COURT
CLERK DATE
George F. McGrath 12/23/83
(BY) DEPUTY CLERK
/s/ Nina Singer
a pale meDin
47a
Appendix G.
42 U.S.C. § 1983
Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or Ter-
ritory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceed-
ing for redress. For the purposes of this section, any Act
of Congress applicable exclusively to the District of Co-
lumbia shall be considered to be a statute of the District
of Columbia.
MASSACHUSETTS GENERAL LAws.
Chapter 41.
(As it was in effect on February 14, 1977.)
Section 96B. Every person who receives an appoint-
ment as a regular police officer on a permanent full-time
basis in any city or in any town, the metropolitan district
commission police, the Massachusetts Bay Transportation
Authority police, the capitol police or as an employee of
the registry of motor vehicles having police powers shall,
within nine months of the date of his appointment, be
assigned to and shall attend a police training school ap-
proved by the Massachusetts police training council for
a course of study lasting at least six weeks and shall
satisfactorily complete such course. Any such police of-
ficer attending such school shall be paid his wages as police
48a
officer. He shall also receive such reasonable expenses
as may be determined by the appointing authority. Any
such police officer who through his own fault fails to
complete his course of study satisfactorily shall be re-
moved from the police force by the appointing authority.
Every regular police officer on a permanent full-time
basis in any such city or town, the metropolitan district
commission police, the Massachusetts Bay Transportation
Authority police, the capitol police or an employee of the
registry of motor vehicles having police powers shall be
assigned to and shall attend a police training school ap-
proved by the Massachusetts police training council for
the purpose of completing an approved course of study
of in-service training at such intervals and for such periods
of time as the council may determine. Any such police
officer who receives an appointment to a position of higher
rank shall, in addition, complete such other courses of
supervisory training as the council may determine. While
attending such school or completing such courses, such
person shall be paid his regular wages as a police officer
and shall receive such reasonable expenses as may be
determined by the appointing authority.
Approved July 13, 1972.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.