# Petition for Writ of Certiorari — Town of Saugus v. Voutour > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0550%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 474 U.S. 1100 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0550%3A1. Public record. Not legal advice.