Petition for Writ of Certiorari — Bagley v. City of Atlanta
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Supreme Court, U.S.
7} FILED
Y 001918 JUN 2 0 2001
Docket No. OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
JIMMY SCOTT BAGLEY,
Petitioner
V.
CITY OF ATLANTA, ET AL.,
On Petition For Writ of Certiorari
To The United States Court of Appeals For the
Eleventh Circuit
PETITION FOR WRIT OF CERTIORARI
Richard A. Gordon, Esq.
Counsel of Record
Richard A. Gordon, P.C.
Suite 890
400 Interstate North Pkwy.
Atlanta, Georgia 30339
(770) 952-2900
II.
III.
IV.
QUESTIONS PRESENTED FOR REVIEW.
Whether seven written citizen complaints filed against
defendant police officer Wingo, two of which for
excessive force were sustained prior to the assault
upon Petitioner, constitute notice to the City of Atlanta
and its Chief of Police, of Wingo’s propensity for
violence when making arrests.
Whether seven written citizen complaints filed against
defendant police officer Wingo, two of which for
excessive force were sustained prior to the assault
upon Petitioner, constitute evidence that City of
Atlanta has a custom of inadequately supervising and
disciplining its police officers for, or tolerating the use
of excessive force.
Whether Brooks v. Schieb, 813 F.2d 1191 (1987), relied
upon by the District Court and the Eleventh Circuit
Court of Appeals, directly conflicts with prevailing
precedent in the First, Second, Third, Fifth, and Ninth
Circuits best exemplified by Beck v. City of Pittsburgh,
89 F.3d 966 (1996), such that Petitioner would have
prevailed on Defendants’ Motion for Summary
Judgment in the lower courts of such Circuits, where
the filing of seven citizen complaints, two of which for
excessive force were sustained prior to the assault on
Petitioner, would have constituted evidence of
knowledge, custom or policy on the part of the City,
and precluded summary judgment.
Whether the panel erred in holding (without citation
of controlling precedent) that the prior citizen
complaints against Defendant Wingo were “simply
allegations” and “too speculative” to support
Petitioner’s claim, when at least two such prior
complaints were sustained.
(i)
ERTIFICATE OF
Counsel hereby certifies that the following are persons
having an interest in this matter:
THE HONORABLE CHARLES A. MOYE, JR., Judge,
United States District Court, Northern District of Georgia;
JIMMY SCOTT BAGLEY, Plaintiff (1:96-CV-151-
CAM)
RICHARD A. GORDON, Attorney for
Plaintiff/ Petitioner Bagley;
J. G. WINGO, Individually and as a police officer of
the City of Atlanta, Georgia, Defendant/ Respondent;
B. S. DAWKINS, Individually and as a police officer
of the City of Atlanta, Georgia, Defendant/ Respondent;
BEVERLY HARVARD, as Chief of Police of the City
of Atlanta, Georgia, Defendant/ Respondent;
CITY OF ATLANTA, GEORGIA;
Defendant/ Respondent;
SUSAN PEASE LANGFORD, CITY ATTORNEY,
Attorney for Defendants/ Respondents;
KIMBERLY L. MILLER, ASSOCIATE CITY
ATTORNEY, Attorney for Defendants/ Respondents.
(ii)
Bw die (0
TABLE OF CONTENTS and
TABLE OF CITATIONS
Questions Presented for Review.............ccssesccssesseesesseseessessees (i)
Certificate of Interested Persoms ..........--cescesesceseeseseoseereenees (ii)
ee Oe CE ao cesssnssicininestisennisescitiiebinsiniintapteniaanieiad (iii)
Te II, ., nn cscresasscsessstciszescsessesseantboenetel (iii-iv)
Cntr OF II cccssesecssceecssercencscesescsncsczessnssnncsnsctsnsensctoed (iv)
ET ON 1
Constitution & Statutory Citations............cscsrersesneereneesees 1.
EE TAT ss Oe eae eC Coe 2.
(I) Proceedings and Disposition...............seeeeseeeenees 2.
(II) Basis for Federal Jurisdiction..................cseseees 2.
FE OE FREON... .cocacesscssesescvcecnscsccsssnneosscnnese 3.
NS TATE 7.
el ES, Ce 17.
a as secs eesnensnconeniee Filed separately.
AUTHORITIES CITED
Cases
1. Monell v. Department of Social Services of the City of New York,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978);
2. City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989);
3. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89
L.Ed.2d (1986);
4. Brooks v. Scheib, 813 F.2d 1191 (11 Cir. 1987);
5. Beck v. City of Pittsburgh, 89 F.3d 966 (3" Cir. 1996),
cert. denied, 519 U.S. 1151, 117 S.Ct. 1086, 137 L.Ed.2d
219 (1997);
(iii)
6.
7.
8.
9.
Montiel v. City of Los Angeles, 2 F.3d 335 (9® Cir. 1993);
Spell v. McDaniel, 824 F.2d 1380 (4* Cir. 1987), cert. denied, .
484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988);
Owens v. City of Atlanta, 780 F.2d 1564, 1567 (11™ Cir. 1986);
Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11" Cir.
1985);
10. Cannon v. Taylor, 782 F.2d 947, 951 (11™ Cir. 1986);
11
12
13.
42
28
. Turpin v. Mailet, 619 F.2d 196 (2d Cir. 1980), cert. denied,
449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980);
. Fletcher v. O’Donnell, 867 F.2d 791, 793 (3d. Cir 1989), cert.
denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 591
(1989);
Vann c. City of New York, 72 F.3d 1040, at 1049 (2d
Cir.1995);
Henry v. County of Shasta, 132 F.3d 512 (9™ Cir. 1997);
Foley v. City of Lowell, 948 F.2d 10 (1* Cir. 1991);
Larez v. City of Los Angeles, 946 F.2d 630 (9* Cir. 1991);
. Grandstaéf v. City of Borger, 767 F.2d 161 (5™ Cir. 1985).
Statutes & Reports
tise OP ee iocianinaicesohaen (Text set out in the Appendix)
(U1. ' edt 2. . Semen (Text set out in the Appendix)
U.S. Constitution Amendments I, IV, V, XIV
(Text set out in Appendix)
(iv)
" sit ies lhe:
TA F
Pursuant to Supreme Court Rule 10, Petitioner
respectfully requests that a writ of certiorari be granted
because the United States Court of Appeals for the Eleventh
Circuit has entered its decision in this case pursuant to Brooks
v. Scheib, 813 F.2d 1191 (11 Cir. 1987) which directly conflicts
with prevailing precedent in the First, Second, Third, Fifth,
and Ninth Circuits, best exemplified by the decision of the
United States Court of Appeals for the Third Circuit in Beck v.
City of Pittsburgh, 89 F.3d 966 (3 Cir. 1996), cert. denied, 519
U.S. 1151, 117 S.Ct. 1086, 137 L.Ed.2d 219 (1997). These two
cases, and the respective Circuit Courts are in direct conflict in
the interpretation and application of this Court’s decision in
Monell v. New York Dept. of Social Services, 436 U.S. 658, 98 S.Ct.
2018, 56. L.Ed.2d 611 (1978); specifically as to whether
numerous citizen complaints filed with city police officials
regarding an individual officer's repeated use of excessive
force is sufficient to present a question of fact as to knowledge
of such conduct on the part of the municipality, or its having
adopted a policy or custom of tolerating the use of excessive
force, for purposes of liability under 42 U.S.C.A. §1983.
CONSTITUTIONAL PROVISIONS & STATUTES
BE UG, § BO retectsccesincicn (Text set out in the Appendix)
y Fit Lem § |. Seana (Text set out in the Appendix)
U.S. Constitution Amendments I, IV, V, XIV
The text of the cited Amendments to the United States
Constitution is set out in the Appendix to this Petition.
STATEMENT OF THE CASE
PROCEEDINGS AND DISPOSITION
The action below was one for violations of civil rights
pursuant to 42 U.S.C.A. § 1983 and for deprivation of rights,
secured by the First, Fourth, Fifth and Fourteenth
Amendments to the Constitution of the United States of
America. The District Court had jurisdiction of the case
pursuant to 28 U.S.C.A. § 1343. .
The City of Atlanta and other Defendants filed a
Motion forSummary Judgment. Appellants responded, citing
seven written citizen complaints concerning use of excessive
force, abusive and rude behavior by Wingo; two of which for
excessive force were sustained prior to the assault by Wingo
upon Piaintiff-Petitioner Bagley. In an order dated September
14, 1999 [R. 68] the District Court denied summary judgment
as to Wingo and denied summary judgment to Harvard,
Dawkins and the City on claims of “excessive force” and
found that there was sufficient evidence to show that there
were genuine issues of material fact as to the Defendants’
knowledge of Wingo’s propensity to use excessive force. The
City moved for reconsideration. On reconsideration, the
District Court’s Order dated and entered November 2, 1999
[R. 72], reversed certain findings of fact and conclusions of
law set forth in the decision of September 14, and granted
summary judgment to Defendants Dawkins, Harvard and
The City of Atlanta on all counts under Rule 56(c) of the
Federal Rules of Civil Procedure.
On December 28, 2000, the panel decision of the
United States Court of Appeals for the Eleventh Circuit
affirmed the District Court’s Order but failed to cite any case
law, statute or other controlling precedent in holding that the
“evidence regarding the citizen complaints was too
speculative to support Bagley’s claim”.
On March 22, 2001, the Petition for Rehearing and
2
Petition for Rehearing En Banc were denied by the United
States Court of Appeals for the Eleventh Circuit, despite the
disparity between the circuits regarding the evidentiary value
of numerous prior citizen complaints.
On June 20, 2001, Petitioner filed the within Petition for
Writ of Certiorari contending that Wingo’s extensive history
of civilian complaints was sufficient to put his supervisors and
the City on notice of his propensity for violence and abuse
toward citizens, or evidence of the failure of Defendants
Dawkins, Harvard and City of Atlanta to adequately train and
supervise Wingo, or dismiss or effectively discipline Wingo;
or evidence of a policy or custom of tolerating such conduct. ~
STATEMENT OF THE FACTS
When taken in the light most favorable to Petitioner,
Jimmy Scott Bagley, the relevant facts are as follows: While
John Nesbitt, Mrs. Nesbitt, and Andrew Martin were leaving
the Midtown Music Festival in Atlanta, Georgia on May 15,
1994, Defendant, James Wingo, a City of Atlanta police officer,
approached their party, and without provocation became
verbally abusive, telling them to “go the fuck the other way”
and “go the fuck with the other people.” As the Nesbitt party
was leaving the area, Defendant Wingo attacked Mr. Nesbitt
from behind, and while Mr. Nesbitt held his hands in the air
saying: “I’m not resisting”, Defendant Wingo threw him
around, into the side of a nearby car and onto the ground.
When Andrew Martin complained about the treatment of his
friend, Defendant Wingo directed that Mr. Martin be arrested.
Petitioner Bagley was totally unacquainted with the
Nesbitts or Mr. Martin prior to the incidents forming the basis
of within proceedings; and happened to be also in attendance
at the Midtown Music Festival with a friend and their dates.
After witnessing the treatment of Mr. Nesbitt at the hands of
Defendant, Wingo, Petitioner Bagley offered his name and
3
phone number to Mrs. Nesbitt, and volunteered to be a
witness concerning Defendant Wingo’s use of excessive force.
While Petitioner Bagley was speaking to Mrs. Nesbit some
distance away, and with his back to Defendant Wingo,
another officer came on the scene.
Defendant Wingo left the Nesbitt and Martin arrests,
and without provocation or justification attacked Petitioner
Bagley from behind, grabbed him by the head, threw him into
the side of a truck parked nearby, with such force as to break
the sideview mirror, threw him to the ground, kneeled on his
neck, got right next to his head while it was pinned to the
ground, and challenged him with: “You want a piece of me?”
Defendant Wingo then directed that Petitioner Bagley
be arrested, and charged him with obstruction of an officer
and disorderly conduct. As a result of this unprovoked
assault, Petitioner Bagley suffered serious and permanent
injury to his neck and back.
All of the charges cited by Defendant Wingo against
Mr. Martin were dismissed at committal hearing by the
Municipal Court. All of the charges cited by Defendant
Wingo against Petitioner Bagley were dismissed by the
Solicitor of the State Court. All of the charges cited by
Defendant Wingo against Mr.Nesbitt were dismissed by the
State Court when Wingo failed to appear for trial after being
subpoenaed.
Mr. Nesbitt filed a complaint with the Office of
Professional Standards (O.P.S.; Internal Affairs). The Officer
who took Mr. Nesbitt’s complaint refused the offer of names
and addresses of independent witnesses saying someone
would call for them later. The case was assigned to Sargent
Dawkins, Officer Wingo’s supervisor. Sgt Dawkins had also
approved Defendant Wingo’s work permit for the day in
question, and had approved Wingo’s report given in support
of his arrests of Nesbit, Martin and Bagley.
According to written policy in the Atlanta Police
4
Department disciplinary manual [R. 57, Ex. 3], this complaint
should have been handled by an officer in OPS. Dawkins
never contacted the independent witnesses, never called to
interview Mr. Nesbitt, never called to interview Mrs. Nesbitt,
never called to interview Mr. Bagley, and never called the
physician who had treated and evaluated Mr. Nesbitt’s
injuries. Dawkins never even interviewed Defendant Wingo,
but accepted as true, every statement in Wingo’s report, even
though Wingo’s disciplinary history included at least one
prior SUSTAINED incident of filing a PERJURIOUS report
denying the use of excessive force.[R. 59].
There was more than ample evidence in Defendant
Wingo’s disciplinary file to place Chief Harvard and the City
of Atlanta on notice of a long string of citizen complaints
against Defendant Wingo, several involving complaints of
abusive language and violent behavior, as well as TWO
PRIOR SUSTAINED complaints resulting from excessive use
of force in effecting arrests. Prior to the incident giving rise
to the within proceedings, two lawsuits had been filed against
Defendant Wingo and the City of Atlanta. These suits alleged
excessive force and were settled with payments to the
Plaintiffs by the City of Atlanta. [R. 63].
One of those complainants, OTIS LETT, filed a
complaint in September 1990. The investigative file of that
complaint is contained in Petitioner’s Exhibit #35 [R. 59}". Mr.
Lett complained that Wingo attacked him and struck him in
the head while he had his hands in the air in a posture of
surrender and kicked him while he lay defenseless on the
ground. This complaint was sustained. It was in connection
with this Complaint that Defendant Wingo filed a written
response under oath, claiming that Mr. Lett had injured
1. According to the record in Case No. 96:CV00151, all of the citizen
complaints filed against Officer Wingo are grouped together in Volume
4, Tab 59.
himself while falling to the pavement. The treating physician
observed that Mr. Lett’s injuries could not have occurred as
claimed by Wingo. [Plaintiff's Exhibit #35, R. 59].
Plaintiffs’ Exhibit #36 [R. 59] is the investigative file of
the citizen complaint of Chester Kelly, also of September 1990,
just one week after the Lett incident. Mr. Kelly complained
that Wingo struck him in the head and kicked him without
provocation in the course of an arrest arising out of a domestic
dispute. Of particular note is the fact that the family member
oricinally calling the police for assistance, was compelled to
call the Atlanta Police Department for a supervisor to come to
the scene to halt the violence being visited v~ on the arrestee
by Defendant Wingo. Wingo received a one day suspension
for his actions in connection with the Kelly Complaint.
Plaintiffs’ Exhibit #38 [R. 59] also includes the
investigative file of the complaint of Daphne Delaney in
November of 1993. Ms. Delaney made a sworn complaint
that after nearly trampling her with his horse, Wingo not only
did not apologize but became verbally abusive and frightened
her. This Complaint resulted in Defendant Wingo being
“verbally counselled” for proper courtesy in dealing with
citizens.”
On April 1, 1995, Torrence Tillman, Rasvida Davis,
James Bod:e, and several others reported to the Atlanta Police
Department that Defendant Wingo had attacked and hit
Walter Lee Butler Jr. on the head with a nightstick while on
horseback simply because Butler complained from across the
street about Wingo’s treatment of other persons. [R. 59]. |
According to all witnesses, Defendant Wingo (as in this case,) |
left the scene of one arrest, rode across the street, pinned Mr.
Butler against a stone wall with his horse, beat Mr. Butler
about the head with a baton, and cited and arrested Mr. Butler
for obstruction. Co-defendants Dawkins and Harvard were
involved in the investigation of this Complaint. In spite of the
unequivocal testimony of six independent witnesses,
6
|
including an attorney, Co-defendant Dawkins credited only
the testimony of Defendant Wingo, and ignored the
Statements of all others, in finding the Complaint
“unsubstantiated”.
Defendants have admitted to the authentication of the
OPS investigative files and Defendant Wingo’s disciplinary
file. These documents were available to the Chief of Police,
OPS, and each successive citizen complaint investigator.
ARG AND CITATION OFA ORITY
I. The seven written citizen complaints filed against
defendant police officer Wingo constitute notice to the City of
Atlanta and its Chief of Police, of Officer Wingo’s propensity
for violence when making arrests. The perfunctory treatment
of such complaints, and the failure to reassign Wingo, or
terminate Wingo’s employment constitute evidence that there
was an adopted or defacto policy, or “custom” of tolerating
incidents of abuse, and engaging in perfunctory investigations
of citizen complaints.
In addressing what a plaintiff must prove in alleging
a violation of 42 U.S.C. §1983, this Court held in Monell v. New
York Dept. of Soctal Services, 436 U.S. 658, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978) that a plaintiff must show that the
complained action “implements or executes a policy
statement, ordinance, regulation, or decision officially adopted
and promulgated by that body’s officers” or else is “visited
pursuant to governmental ‘custom’ even though such a
custom has not received formal approval through the body’s
official decision making channels.” Monell, 436 U.S. at 690-
691, 98 S.Ct. at 2035-2036. “Thus, although the municipality
may not be held liable for a constitutional tort under 42 U.S.C.
§1983 on the theory of vicarious liability, it can be held
responsible when the injury inflicted is permitted under its
7
adopted policy or custom”.’
The Court’s reasoning in Monell has created two
separate paths to establish municipal liability under 42 U.S.C.
§ 1983, depending on whether the allegation is based on
municipal policy or custom.’ In Pembaur v. Cincinnati, 475
U.S. 469 at 480-81 (1986), municipal liability was based on a
single act of a municipal policy maker and was fairly easy to
determine. However, municipal liability based on “custom”
is much more difficult to ascertain. . = oh
This Court established the rule for establishing the
liability of a municipality according to custom, in City of
Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989). “It is only when the ‘execution of the government's
policy or custom...inflicts the injury’ that the municipality
may be liable under §1983.” Id, 489 U.S. at 385. This Court
specifically held that, “[t]he inadequacy of police training may
serve as a basis for §1983 liability only where the failure to
train amounts to deliberate indifference to the rights of
persons with whom the police come into contact.” Id, 489 U.S.
at 388.
Toestablish liability under Monell, ithas been held that
evidence of prior complaints against officers is effective. See
Montiel v. City of Los Angeles, 2 F.3d 335, 343 (9"
Cir.1993)(reversing summary judgment for the City because
the investigation of plaintiff's complaint- which was “shallow
and deficient’, plus three prior citizen complaints against
defendant officer, plaintiff “might very well have [been]
enough evidence against the City to withstand the motion”);
2. Beck v. City of Pittsburgh, 89 F.3d at 971 (1996), cert. denied, 519 U.S.
1151, 117 S.Ct. 1086, 137 L.Ed.2d 219 (1997).
3. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292,
1299, 89 L.Ed.2d (1986).
Spell v. McDaniel, 824 F.2d 1380, 1388 (4" Cir. 1987), cert.
denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988)
(department complaint records corroborated specific
testimony about prior misconduct).
_ Despite possible evidentiary problems with
admissibility relating to the complaint data, the District Court
tuled in this case that the seven citizen complaints are
admissible. [Order R.68, p. 22]. In the District Court’s Order
[R.68] the Court outlined the seven complaints against Officer
Wingo from 1990 to 1995. Five of the seven involved
complaints of excessive force relating to Officer Wingo’s
beating citizens on and around the head and neck, similar to
the beating Petitioner Bagley suffered in 1994. [R.59]. The
District Court initially held that the number and manner of the
citizen complaints against Officer Wingo created a triable issue
of fact against Chief Harvard, Sgt. Dawkins, and the City of
Atlanta. However, relying on Brooks, the District Court later
reversed its September 14, 1999 Order denying summary
judgment, and, erroneously concluded that “the complaints
were ‘not sustained’,” and that they were “insufficient to put
Chief Harvard, Sgt. Dawkins, and the City on notice of Officer
Wingo’s alleged tendency to use excessive force.” [R. 72].
II. The United States Court of Appeals for the Eleventh
Circuit affirmed the District Court’s decision in this case -
pursuant to Brooks v. Scheib, 813 F.2d 1191 (11 Cir. 1987).
The Eleventh Circuit in Brooks, interpreted this Court's
decision in Monell v. New York Dept. of Social Services, 436 U.S.
658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) as follows:
“Monell holds that a municipality shall be liable under
42 U.S.C. §1983 if a ‘custom’ or ‘policy’ of the city is the
‘moving force’ behind a constitutional violation. Id. at 690-694,
98 S.Ct. at 2035-38. Our circuit has interpreted Monell as
requiring that ‘[t]he municipality itself must be at fault in
some sense for establishing or maintaining the policy which
9
causes the injurious result...’ See Owens v. City of Atlanta, 780
F.2d 1564, 1567 (11™ Cir. 1986)(citing Fundiller v. City of Cooper
City, 777 F.2d 1436, 1442 (11™ Cir. 1985).” Brooks v. Scheib, 813
F.2d at 1193. The Eleventh Circuit has further interpreted
Monell by holding that the municipality’s failure to correct the
constitutionally offensive actions of its police department may
rise to the level of a “custom or policy” if the municipality
tacitly authorizes these actions or displays deliberate
indifference towards police misconduct.*
Despite ten written citizen complaints filed against
Officer Scheib, the Eleventh Circuit determined that “there is
no evidence that city officials were aware of past police
misconduct’...Brooks never demonstrated that past
complaints of police misconduct had any merit. Indeed, the
number of complaints bears no relation to their validity.” Id,
813 F.2d at 1193.
In Brooks, the Eleventh Circuit apparently surmised
that there was a logical explanation beyond a question of fact,
as to why a large number of complaints had been lodged
against Scheib: “Officer Scheib patrolled a high crime area. A
significant percentage of those Scheib arrested were
continually in trouble with the law. These experienced
customers frequently use citizens’ complaints as a means of
harassing officers who arrest them.” Brooks at 1193, emphasis
provided.
In addressing this same question of when an
aggrieved citizen has provided sufficient evidence from which
a jury could infer that a municipality has adopted a custom of
4. Brooks, 813 F.2d 1193 citing Cannon v. Taylor, 782 F.2d 947, 951 (11
Cir. 1986) (citing Turpin v. Mailet, 619 F.2d 196 (2d Cir. 1980), cert.
denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980)).
5. See Cannon v. Taylor, 782 F.2d at 951; compare Depew v. City of St.
Mary’s Georgia,787 F.2d 1496 (11™ Cir 1986).
10
tot Tene eT e. ee FO eP e
permitting its police officers to use excessive force in the
performance of their duties, the United States Court of
Appeals for the Third Circuit in Beck v. City of Pittsburgh, 89
F.3d 966 (3 Cir. 1996), cert. denied, 519 U.S. 1151, 117 S.Ct.
1086, 137 L.Ed.2d 219 (1997) recently interpreted municipal
liability according to Monell v. New York Dept. of Social Services,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) differently.
Citing Pembaur, 475 U.S. 469 (1986), the Third Circuit held that
custom may also be established by evidence of knowledge and
acquiescence.°
The Third Circuit in Beck, interpreted City of Canton’ as
allowing courts to adopt the “deliberate indifference”
standard in policy and custom contexts such as the case at
bar.* The Court held that “because the complaints, especially
those during the year 1991, came in a narrow period of time
and were of similar nature, a reasonable jury could have
inferred that the Chief of Police knew, or should have known,
of [Officer] Williams’s propensity for violence when making
arrests.” Beck, 89 F.3d at 973.
Ill. | The case of Brooks v. Scheib (11" Cir. 1987) and the
prevailing precedent in the First, Second, Third, Fifth, and
Ninth Circuits, best exemplified by the decision of the United
States Court of Appeals for the Third Circuit in Beck v. City of
Pittsburgh (3d Cir. 1996) are in direct conflict in interpreting
and applying this Court's decision in Monell v. New York Dept.
of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
6. Beck, 89 F.3d at 971 citing Fletcher v. O’ Donnell, 867 F.2d 791, 793 (3d.
Cir 1989), cert. denied, 492 U.S. 919, 109 S.Ct. 3244, 106 L.Ed.2d 591 (1989).
7. City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989).
8. Beck v. City of Pittsburgh, 89 F.3d 972 (1996).
1]
(1978); specifically on the issue of whether numerous prior
citizen complaints filed with city police officials regarding an
individual officer's repeated use of excessive force is sufficient
to establish a question of fact as to knowledge, policy or
custom on the part of the municipality for purposes of liability
under 42 U.S.C.A. §1983.
The prevailing view appears to be that the existence of
a number of complaints of a similar nature, whether they
occurred before or after the incident in the suit at bar,
constitute sufficient evidence to create an issue of fact as to the
notice with which policymakers must be charged. See Beck v.
City of Pittsburgh, 89 F.3d 966 (3 Cir. 1996), cert. denied, 519
U.S. 1151, 117 S.Ct. 1086, 137 L.Ed.2d 219 (1997); Vann c. City
of New York, 72 F.3d 1040, at 1049 (2d Cir.1995)(“An obvious
need may be demonstrated through proof of repeated
complaints of civil rights violations; deliberate indifference
may be inferred if the complaints are followed by no
meaningful attempt on the part of the municipality to
investigate or to forestall further incidents”)(citations :
omitted). It should be of no concern whether the evidence of
other misconduct occurred before or after the incident giving
rise to the case at bar. See Henry v. County of Shasta, 132 F.3d
512 (9 Cir. 1997); Foley v. City of Lowell, 948 F.2d 10 (1 Cir.
1991); Larez v. City of Los Angeles, 946 F.2d 630 (9™ Cir. 1991);
Grandstaff v. City of Borger, 767 F.2d 161 (5" Cir. 1985).
In any of the circuits previously cited, (First, Second,
Third, Fifth, or Ninth) Petitioner would have prevailed, and
Defendants’ Motion forSummary Judgment would have been
denied because the prior, sustained citizen complaints, and
volume of complaints would have constituted evidence of
notice with which the City of Atlanta, Chief Harvard and Set.
Dawkins must be charged. Similarly, the total number of
complaints, and ‘heir perfunctory “investigation” and
dismissal would have constituted evidence of municipal
policy or custom. Since the outcome of Petitioner’s case would
12
—7E eee
have differed drastically as between the Eleventh Circuit and
the First, Second, Third, Fifth, and Ninth Circuits, he seeks a
Writ of Certiorari to resolve this extremely important issue of.
law.
IV. The Court of Appeals and the District Court erred in
holding (without citation of controlling precedent) that the
prior citizen complaints against Defendant Wingo were
“simply allegations” and “too speculative” to support
Petitioner's claim, when at least two such prior complaints
were sustained.
The panel judgment of the Court of Appeals entered
on December 28, 2000 states that “the evidence regarding the
citizen complaints was too speculative to support Bagley’s
claim. The complaints were simply allegations and Bagley
failed to offer any proof of their substance or
merit...” (December 28, 2000 Judgment). The Court of Appeals
erred because several of the complaints against Wingo were
substantiated and sustained by the City of Atlanta Police
Department, such that ample evidence of notice to jo Wingy’ s
superiors and the City of Atlanta existed.
In September 1990, a citizen named Otis Lett filed a
complaint against Wingo for excessive force after he suffered
and was hospitalized for blunt trauma to the head and injuries
to his ribs. [R.59] Officer Wingo stated under oath that he did
not beat Mr. Lett, but the report of the treating physician
revealed that Mr. Lett could not have “fallen” as Officer
Wingo stated. Later, Officer Wingo recanted his story and
said that his flashlight might have hit Mr. Lett. The City of
Atlanta Police Department cited Wingo and he received a two-
day suspension without pay. In addition, Mr. Lett filed a civil
action against the City of Atlanta for excessive force, which
also constitutes notice to the City, of Officer Wingo’s
propensity to use excessive force and violence. Mr. Lett’s civil
case was eventually settled by payment to the Complainant.
[R.63].
13
In a similar incident in September 1990, Officer Wingo
responded to a domestic dispute call, and severely beat
Chester Kelly. Mr. Kelly’s common law wife who had initially
called the police to her home, called the police again to report
Officer Wingo’s beating of her husband. She asked Wingo for
the name of his supervisor, but Wingo refused to provide her
with that information. Officer Wingo was disciplined for
“failure to call a supervisor” and “failure to appear in court”
resulting in a one-day suspension. [R. 59]. _-
In November 1993, a citizen named Daphne Delaney
filed a Complaint against Officer Wingo which resulted in
“verbally counseling the Officer on the steps for proper
courtesy in dealing with citizens” .[R. 59].
Of the several complaints filed against Officer Wingo,
these three resulted in disciplinary action by the Atlanta
Police Department, therefore they can not be considered
“simply allegations” and “too speculative to support Bagley’s
claim”. :
The Eleventh Circuit’s judgment affirmed the District
Court's ruling that the complaints failed to put the City of
Atlanta, Chief Harvard and Sgt. Dawkins on the requisite
“notice” to impose municipal liability according to Brooks v.
Scheib, 813 F.2d 1191 (11 Cir. 1987). However, the case at bar
is clearly distinguishable.
In Brooks, the Plaintiff presented evidence of the
number of complaints against Scheib, but no evidence as to
the merits of those complaints. At trial the only evidence as
to the merits of the complaints was the testimony of Atlanta
Officers that the complaints had been investigated and found
to lack merit. This determination was not challenged by
evidence presented by Plaintiff Brooks. The Court in Brooks
held that the ten complaints against the Defendant did not
constitute rmotice of police misconduct since the police
department showed that the cases were investigated and that
none of them had any merit.
14
In the present case, several of the complaints clearly
had merit, resulted in disciplinary action, thereby
substantiating the complaints, and . placing Wingo’s
supervisors and the City on notice of his propensity to
violence and excessive force. Unlike Brooks, there is more than
ample evidence from which the jury could find that the “City
knew or should have known that the natural consequence of
its policy and practices would be the deprivation of
constitutional rights.” Brooks at 1193 citing Owens v. City of
Atlanta, 780 F.2d 1564, 1567 (11% Cir. 1986).
In addition, a jury would be entitled to compare and
evaluate the evidence with the conclusions of the police
“investigators” and determine whether the conclusions of the
police “investigators” were reasonable or just a “whitewash.”
As held in Brooks, the tacit authorization of unconstitutional
conduct amounts to deliberate indifference toward police
misconduct. “Examining the records of complaints against a
police officer may be helpful,” (Brooks at 1194) in determining
an existing policy of toleration of abuse.
Monell v. Department of Social Services of the City of New
York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) holds
that a municipality shall be liable under 42 U.S.C. § 1983 if a
“custom” or “policy” of the city is the “moving force” behind
a constitutional violation. Id. at 690-694. The Eleventh Circuit
has interpreted Monell as requiring that “[t]he municipality
must be at fault in some sense for establishing or maintaining
the policy which causes the injurious result...” Owens v. City
of Atlanta, 780 F.2d 1564, 1567 (11" Cir. 1986) citing Fundiller v.
City of Cooper City, 777 F.2d 1436, 1442 (11™ Cir. 1985).
Evidence of prior substantiated claims provides evidence of a
“custom” or “policy” of the City, and a basis for imposing
liability, such that summary judgment on these issues should
be precluded, and the issues resolved by the trier of fact.
In addition, the Supreme Court of the United States
has held that “[t]he inadequacy of police training may serve
15
as a basis for §1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons
with whom the police come into contact.” City of Canton v.
Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989). The evidence of these prior substantiated complaints,
and the failure to dismiss or reassign Defendant Wingo are
sufficient for a jury to find a deliberate indifference by ti:e City
of Atlanta, Chief Beverly Harvard, and Sgt. Dawkins, to the
rights of the persons who come in contact with the police.
Petitioner has alleged that Wingo’s supervisors,
Sargent Dawkins and Chief Harvard, are liable for the
misconduct of officer Wingo because of their failure to control
or dismiss a subordinate employee with a history of violent
conduct. The evidence of substantiated prior complaints, and
total number of complaints is relevant and sufficient to
demonstrate the history of such misconduct, the supervisor's
and City’s knowledge of that behavior, and their toleration of
such conduct, which in any other employment context would
have warranted immediate dismissal.
Although the mere failure of a supervisor to
investigate or discipline a subordinate after a single instance
of misconduct will not subject the supervisor to liability for
that single act, a supervisory officer may be liable if that
supervisor knew or should have known of actual or potential
problems with his subordinate and failed to take action to
control or eliminate the problem. Appellants’ #35 through #38
[R. 59] are the best evidence of such supervisory knowledge.
These incidents of prior substantiated complaints,
coupled with the testimony of the complainants, are evidence
which was known to Wingo’s supervisors and The City, and
were sufficient to place them on notice of Wingo’s propensity
to abuse citizens, violently attack them, and bring charges but
fail to appear in court. According to the findings of the
District Court, the Defendants have admitted that Wingo’s
supervisors knew Wingo’s history.
—s----
16
Ne
Chief of Police Harvard, and Sgt. Dawkins as Wingo’s
supervisors can be held individually liable for their failure to
discipline and their “ failure to establish procedures to prevent
future occurrences.” Larez v. City of Los Angeles, 946 F2d 630
(9™ Cir.1991). Evidence in the form of prior perjury, sustained
complaints, lawsuits, statements of other victims and
witnesses of Wingo’s misconduct, and official complaint é
disciplinary files against Wingo, authorize a jury to conclude
that the City of Atlanta, Chief Harvard, and Sgt. Dawkins
have maintained a policy, practice, or custom of tolerating
police misconduct in general, and of tolerating Wingo’s
misconduct in particular.
CONCLUSION
Upon the above and foregoing citations of authority,
Petitioner respectfully requests that this Court grant this
Petition for Writ of Certiorari.
RICHARD A. GORDON, P.C.
Attorneys for Petitioner
ov Ld lon $
RICHARD A. GORDON
Counsel of Record
Suite 890
400 Interstate North Pkwy.
- Atlanta, Ga 30339
770 952-2900
APPENDIX
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TABLE OF CONTENTS OF
APPENDIX
Pursuant to Supreme Court Rule 14 (i), Petitioner hereby files
the following relevant documents in this Appendix:
1. Per Curiam Opinion of United States Court of Appeals for
the Eleventh Circuit dated December 28, 2000, in Case
No. 99-15000, heard before Circuit Judges Carnes and
Barkett, and the Honorable Louis H. Pollak, Senior
US. District Judge for the Eastern District of
Pennsylvania.
2. Order dated September 14, 1999, from the United States
District Court, Northern District of Georgia (denying
Defendants’ Motion for Partial Summary Judgment).
3. Order dated November 2, 1999, from the United States
District Court, Northern District of Georgia (granting
Defendants’ Motion for Partial Summary Judgment
following Defendants’ Motion for Reconsideration).
4. Per Curiam Opinion of United States Court of Appeals for
the Eleventh Circuit on Petition for Rehearing and
Petition for Rehearing En Banc dated March 22, 2001,
in Case No. 99-15000, heard before Circuit Judges
Carnes and Barkett, and the Honorable Louis H.
Pollak, Senior U.S. District Judge for the Eastern
District of Pennsylvania.
5. Statutory Text of 42 U.S.C. A. § 1983
6. Statutory Text of 28 U.S.C.A. § 1343
7. Text of United States Constitution, Amendment I.
8. Text of United States Constitution, Amendment IV.
9. Text of United States Constitution, Amendment V.
10. Text of United States Constitution, Amendment XIV.
ERS OPA DA, Tidsen ARTA Rea
pues ceaecs ines cup spc ropes
co iin npc iia chan ilies teehee te ekg Ce a
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DEC 28 2000
THOMAS K. KAHN
CLERK
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 99-15000
D.C. Docket No. 96-00151-CV-CAM-1
JIMMY SCOTT BAGLEY,
Plaintiff-Appellant,
versus
J. G. WINGO,
BEVERLY HARVARD, as Chief of
Police of the City of Atlanta,
Georgia, et al.,
Defendants-Appellees,
Appeal from the United States District Court
for the Northern District of Georgia
(December 28, 2000)
Before CARNES and BARKETT, Circuit Judges, and POLLAK',
Senior District Judge.
PER CURIAM:
Jimmy Scott Bagley appeals a summary judgment in favor
of Chief Beverly Harvard and Sgt. B.S. Dawkins of the Atlanta Police
1. Honorable Louis H. Pollak, Senior U.S. District Judge for the Eastern District
of Pennsylvania, sitting by designation.
ln
—_.
ame
Department and the City of Atlanta on Bagley's 42 U.S.C. § 1983
claims alleging violations of his civil rights. On appeal, Bagley
contends-that the district court erred both in excluding the testimony
of Allyson Collins from—consideration in deciding the summary
judgment motion and in concluding that-even without her testimony
there was insufficient evidence that Harvard, Dawkins,-and the City
had a custom, policy, or practice of deliberate indifference towards___
police misconduct. We affirm.
Bagley filed this action against Officer J.G. Wingo, Dawkins,
Harvard, and the City of Atlanta, alleging that Wingo, a police officer
employed by the Atlanta Police Department, arrested him without
probable cause and with excessive force, thus depriving him of his
constitutional rights in violation of 42 U.S.C. § 1983.? Bagley's action
against Harvard, Dawkins, and the City of Atlanta is based on his
claim that the City's procedures for handling citizens' complaints of
police misconduct amounted to a custom, policy, or practice of
deliberate indifference towards police misconduct and led to his
injunes. In support of his contention that the City had a policy,
custom, or practice of deliberate indifference towards and tacit
approval of police misconduct, Bagley offered the following evidence:
(1) the testimony of Allyson Collins, a person who investigates police
abuse and misconduct for Human Rights Watch; (2) the written report
issued by Human Rights Watch concerning these investigations; and
(3) seven citizens' complaints alleging violence, threats of violence, or
verbal abuse filed against Wingo. The trial court ruled that Collins’
testimony and the Human Rights Watch report were inadmissible
hearsay and that absent this testimony, the remaining evidence
consisting of the several alleged citizen complaints against Wingo was
insufficient to establish that Harvard, Dawkins, and the City had a
custom, policy, or practice of deliberate indifference towards police
misconduct. Bagley appeals those determinations.
We review the district court's evidentiary rulings for abuse of
discretion. See Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.
1997). We review de novo a district court's grant of summary
judgment, applying the same legal standards as the district court. See
2.Bagley’s claims against Wingo are not part of this appeal.
~~,
ae rd
Whatley v. CNA Ins.Cos., 189 F.3d 1310, 1313 (11th Cir. 1999).
Bagley argues on appeal that the Human Rights Watch
report concerning that organization's investigations of Atlanta's
response to police misconduct complaints is admissible under either
Federal Rule of Evidence 803(8), the public records exception, or
Federal Rule of Evidence 807, the residual exception to the hearsay
rule. Rule 803(8) provides an exception to the hearsay rule for
reports of "public offices or agencies" setting forth "factual findings
resulting from an investigation made pursuant to authority granted by
~~. law, unless the sources of information or other circumstance indicate
~Tackof trustworthiness. "Fed. R. Evid. 803(8). Human Rights Watch
is not a puvlic agency and was not under any legal duty either to
observe matters and-report thereon or to conduct the investigations.
We therefore find that the district court did not err in refusing to admit
the report as a public record. We likewise find no error in the district
court's exclusion of the report under the residual exception rule. See
's of les, Inc. v. TERE. 2d 1356, 1358
(11th Cir. 1986) ("we are particularly hesitant to overtum a tnal
court's admissibility ruling under the residual hearsay exception
absent a "definite and firm conviction that the court made a clear error—_
of judgment in the conclusion it reached based upon a weighing of the
relevant factors") (citing Page v. Barko Hydraulics, 673 F.2d 134,
140 (5th cir. 1982)).
Bagley also argues that Collins's testimony was admissible
as lay witness testimony and that she should have been permitted to
present information she had obtained based on her investigation of
Atlanta's response to complaints of police misconduct and her
conclusion that "there seems to be a practice of deliberately failing to
implement systems to hold officers accountable and to terminate
officers who shouldn't be officers so that they don't go on to commit
more abuses."’ Under the circumstances of this case, we find no abuse
of discretion in the district court's determination that the testimony of
Collins as a lay witness was inadmissible hearsay.
Finally, we examine the question of whether in the absence
of Collins' testimony and the Human Rights Watch report there was
3. Bagley does not contend that Collins is an expert witness.
sufficient evidence that Harvard, Dawkins, and the City had a custom,
policy, or practice of deliberate indifference towards police
misconduct. We agree with the district court's determination that the
evidence regarding the citizen complaints was too speculative to
support Bagley's claim. The complaints were simply allegations and
Bagley failed to offer any proof of their substance or merit. Therefore,
we find that there is insufficient record support for a reasonable jury
to have concluded that Harvard, Dawkins, and the City were acting
in accord with a custom, policy, or practice of deliberate indifference
towards police misconduct. Accordingly, the judgment of the district
court is
AFFIRMED.
FILED IN CLERK’S
OFFICE
U.S.D.C. Atlanta
SEP 14 1999
Luther D. Thomas, Clerk
By: /s/, Deputy Clerk
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOHN P. NESBITT, JR. and
ANDREW JOSEPH MARTIN,
Plaintiff(s),
: CIVIL ACTION NO.
v. : 1:96-CV-1038-CAM f
J.G.WINGO, et al.,
Defendant(s).
JIMMY SCOTT BAGLEY,
Plaintiff,
: CIVIL ACTION NO.
v. : 1:96-CV-151-CAM
J.G. WINGO, et al.,
Defendants.
ORDER
Plaintiffs, John P. Nesbitt, Jr., Andrew Joseph Martin, and
Jimmy Scott Bagley, filed these suits against Defendants, Officer J.G.
Wingo, Sgt. B.S. Dawkins, Chief Beverly Harvard, the City of
Atlanta, and various other defendants, seeking to recover pursuant to
§ 1983 for violations of their civil nights as well as on various state
law claims. After the Court granted motions for summary judgment
as to all defendants except the City of Atlanta defendants, the cases
went to trial on March 10, 1999. A mistrial was declared on March
11, 1999, and the Court granted permission for Defendants to file an
out-of-time motion for summary judgment. The case is before the
Court on Defendants’ motion for partial summary judgment. For the
reasons stated herein, the motion is DENIED in part and GRANTED
in part.
FACTUAL AND PROCEDURAL BACKGROUND
On May 15, 1994, Plaintiffs attended the Midtown Music
Festival. Plaintiffs allege that, as they were leaving the festival, they
were assaulted, falsely arrested, and falsely.charged with several
crimes by Officer Wingo.
The Midtown Music Festival was a three day event at which
City of Atlanta off duty police officers served as security guards. The
security guards worked at the perimeter of the festival to prevent
people from entering without paying, to direct pedestrian traffic, and
to ensure that festival patrons left the festival in an orderly fashion.
At the time of the incident giving rise to this lawsuit, Officer
Wingo was working as a security guard and was stationed at the
intersection of Eleventh Street and Peachtree Walk, near an area used
by the cleaning subcontractor for the collection of trash. The area
behind Officer Wingo was not a designated exit; a fence blocked
access to the street, but the fence was not clearly visible from the
intersection. Officer Wingo was directing people to go to the left or to
the nght to designated exits. A group of port-a-potties were also j
located in the same general area. Bagley and a friend were waiting
near the intersection for their dates to return from the restrooms.
Exactly what happened throughout the incident is in dispute. The
parties agree, however, that, as Nesbitt, Nesbitt's wife, and Martin
approached the intersection, Officer Wingo indicated that they could
not leave the festival by going straight ahead out would have to tum
left or nght to use one of the designated exits. Nesbitt wanted to go
straight ahead, even if it meant climbing the fence, because his car
was nearby. After an initial confrontation, Nesbitt, his wife, and
Martin turned and began moving toward one of the exits. As Nesbitt
walked away from Wingo toward a designated festival exit, Nesbitt
said that Wingo was "a fucking bonehead.”
Nesbitt was arrested by Officer Wingo for disorderly
conduct; Martin was arrested by Officer Patrick Reagan at the
direction of Officer Wingo for obstruction, and Bagley was arrested
by Officer Wingo for obstruction. All three were transported to the
City of Atlanta jail. All charges were later dismissed.
LEGAL STANDARDS AND ANALYSIS
I. Summary Judgment ; :
Courts should grant summary judgment when "there is no
genuine issue as to any material fact and .__ . the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
party seeking summary judgment bears "the initial responsibility of |
informing the . . . court of the basis for its motion, and identifying
those portions of [the record] ‘together with the affidavits, if any,’
which it believes demonstrate the absence of @ genuine issue of
material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Adickes v. S.H. Kress and Co., 398 US. 144, 159-60 (1970); United
941 F.2d 1428, 1437-38
(11th Cir. 1991).
Once the moving party has met this initial burden, the
"burden shift[s] to the non-moving party to demonstrate that there is -
indeed a material issue of fact that precludes summary judgment."
Clark vy. Coats & Clark, 929 F.2d 604, 608 (llth Cir. 1991). Whether
facts are material is determined by the applicable substantive law.
Anderson v. Liberty Lobb , Inc., 477 U.S. 242, 248 (1986).
The court views the evidence in the light most favorable to
the party opposing the motion. Adickes, 398 U.S. at 158-59.
Moreover, “[rJeasonable doubts as to the facts should be resolved in
favor of the nonmoving party," Borg-Wamer Acceptan¢e bom. v.
Davis, 804 F.2d 1580, 1582 (11th Cir. 1986), "and ail’ justifiable
inferences are to be drawn in his favor," Everett v. Napper, 833 F.2d
1507, 1510 (llth Cir. 1987). "For factual issues to be considered
genuine, they must have a real basis in the record.” Hairston v.
Gainesville Sun Publishing Co., 9 F.3d 913, 919 (11th Cir. 1993).
An issue is not genuine if it is created by evidence that is "merely
colorable" or is "not significantly probative." Anderson, 477 US. at
249-50. The unsupported, self-serving statements of the party
Opposing summary judgment are insufficient to avoid summary
judgment. Midwestern Waffles. Inc. v. Waffle House, Inc., 734 F.2d
705, 714 (llth Cir. 1984).
Il. Liability of Governmental Entity
"Local governing bodies . . . can be sued directly
under § 1983 for monetary, declaratory, or injunctive relief 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." Monell
vy. New York City Dept. of Social Services, 436 U.S. 658, 690
(1978). Local governments may also be “sued for constitutional
deprivations visited pursuant to governmental ‘custom’ even though
such a custom has not received formal approval through the body's
official decisionmaking channels," id. at 690-91, if the custom is “so
pervasive, as to be the functional equivalent of a policy adopted by the
final policymaker,” Church v, City of Huntsville, 30 F. 3d 1332, 1343
(lith Cir. 1994).
"[A local government] can be found liable under §
1983 only where the [local government] itself causes the constitutional
violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385
(1989). "Respondeat superior or vicarious liability will not attach
under § 1983." Id. “It is only when the execution of the government's
policy or custom inflicts the injury that the municipality may be held
liable under § 1983.” Id, (internal quotation marks omitted). "Thas,
[the] first inquiry in any case alleging municipal liability under § 1983
is the question whether there is a direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation.” Id.
Il. Liability of Supervisor
"Like municipalities, supervisors cannot be held liable for the
acts of employees solely on the basis of respondeat superior.”
Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (llth Cir.
1985). Although “[s]upervisory liability is not limited . . . to those
incidents in which the supervisor personally participates in the
deprivation[,] [t]here must be a causal connection between the actions
of the supervisory official and the alleged deprivation." Id. "This
causal connection can be established when a history of widespread
abuse puts the responsible supervisor on notice of the need for
improved training or supervision, and the official fails to take
corrective action." Id.
F.2d 630, 646 (9” Cir. 1991).
IV.
"Qualified immunity protects government officials
performing discretionary functions from civil trials (and the other
burdens of litigation, including discovery) and from liability if their
conduct violates no ‘clearly established statutory or constitutional
shield against claims made against them in their individual
capacitities." Id. (emphasis in original). "Unless a government agent's
law would have done such a thing, the government actor has immunity
from suit.” Id. "Because qualified immunity shields government actors
in all but exceptional cases, courts should think long and hard before
of the challenged actions.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th
Cir. 1988). On the other hand, “if the legal norms allegedly violated
were as a matter of law clearly established at the appropriate time, a
genuine fact issue as to what conduct the defendant engaged in would
preclude a grant of summary judgment based upon qualified
immunity." Id. at 1565.
The Eleventh Circuit has established a two-step framework
for considering a claim of qualified immunity. First, the defendant
must prove that "he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.” Id. at 1563.
Ig. at 1563. Then, "the burden shifts to the plaintiff to show . . . that
the defendant public official’s actions violated clearly established
constitutional law." Ig. at 1564 (internal quotation marks omitted).
"A government official acts within his or her
discretionary authority if objective circumstances compel the
conclusion that challenged actions occurred in the performance of the
official’s duties and within the scope of this authority." Hill v. DeKalb
Regional Youth Detention Center, 40 F.3d 1176, 1185 n.17 (11th Cir.
1994). If the actions at issue were carried out by the government
official in the performance of his normal job duties and were within
the authority delegated to him by the government, they were within the
officials discretionary authority. Rich, 841 F.2d at 1563.
"For qualified immunity to be surrendered, pre-existing
law must dictate, that is, truly compel (not just suggest or allow or
raise a question about), the conclusion for every like-situated,
reasonable government agent that what defendant is doing violates
federal law in the circumstances.” Lassiter, 28 F.3d at 1150
(emphasis in original). "The subjective intent of government actors
plays no part in qualified immunity analysis." Id. "Objective legal
reasonableness is the touchstone." Id.
V. Section 1983 Claims
"{I]n any § 1983 action the initial inquiry must focus on
whether the two essential elements to a § 1983 action are present: (1)
whether the conduct complained of was committed by a person acting
under color of state law; and (2) whether this conduct depnved a
person of nights, privileges, or immunities secured by the Constitution
or laws of the United States." Parratt v. Tavlor, 451 U.S. 527, 535
(1981), overruled in part on other grounds, Daniels v. Williams, 474
U.S. 327 (1986). See, also, Ajbright v. Oliver, 510 U.S. 266, 271
(1994) (The first step in considering any claim under section 1983 is
"to identify the specific constitutional right allegedly infringed."). If
the defendant in a § 1983 action is a governmental entity, the initial
inquiry must focus on: “(1) whether plaintiff's harm was caused by a
constitutional violation, and (2) if so, whether the [governmental
entity] is responsiole for that violation." Collins v. Harker Hei
503 U.S. 115, 120 (1992).
A. Probable Cause
"A warrantless arrest without probable cause violates the
Constitution and forms the basis for a section 1983 claim.” Marx v.
Gumbinner, 905 F.2d 1503, 1505 (11" Cir. 1990). "Probable cause
exists if ‘the facts and circumstances within the officer's knowledge,
of which he or she has reasonably trustworthy information, would
cause a prudent person to believe, under the circumstances shown,
that the suspect has committed, is committing, or is about to commit
999
an offense. Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557-58
(11" Cir. 1993) (quoting Von Stein v. Brescher, 904 F. 2d 572, 578
(11" Cir. 1990)), modified in unrelated part, 14 F.3d 583 (11" Cir.
1994). "[P]robable cause must be judged not with clinical detachment
but with a common sense view to the realities of normal life." Marx,
905 at 1506 (quotations omitted)(citing Wilson y. Attaway, 757 F.2d
1227, 1235 (11 Cir. 1985)).
"The reasonableness of the officers' conduct must be
judged against an objective standard: 'would the facts available to the
officer at the moment of the seizure or search warrant a man of
reasonable caution in the belief that the action taken was
appropriate. ’” United States v. Blackman, 66 F.3d 1572, 1576 (11th
Cir. 1995) (quoting Courson vy. McMillian, 939 F.2d 1479, 1498
(11th Cir. 1991)), cert. denied, 517 U.S. 1126 (1996) and 519 U.S.
967 (1996). “[I]n making a determination of probable cause the
relevant inquiry is not whether particular conduct is ‘innocent’ or
“guilty,” but the degree of suspicion that attaches to particular types
of noncriminal acts.” Courson, 939 F.2d at 1489 n.16.
"In a case involving a warrantless search and seizure, the
question of whether qualified immunity should be held to exist turns
upon whether there was arguable probable cause, as opposed to
probable cause in fact." Eubanks v. Gerwen, 40 F.3d 1157, 1160
(11th Cir. 1994). "The standard of arguable probable cause is
whether a reasonable officer in the same circumstances and possessing
the same knowledge as the officer in question could have reasonably
believed that probable cause existed in the light of well-established
law." Id. (emphasis in original). "It is inevitable that law enforcement
officials will in some cases reasonably but mistakenly conclude that
probable cause is present, and we have indicated that in such cases
those officials-like other officials who act in ways they reasonably
reasonably believe to be lawful-should not be held personally liable."
Lindsey v. Storey, 936 F.2d 554, 559 (11th Cir. 1991) (quoting
Anderson v. Creighton, 483 U.S. 635 (1987).
B. Disorderly Conduct
0.C.G.A. § 16-11-39(a) provides:
A person commits the offense of disorderly conduct
when such person commits any of the following:
(3) Without provocation, uses to or of another
person in such other person's presence, opprobrious
or abusive words which by their very utterance tend
to incite to an immediate breach of the peace, that
is to say, words which as a matter of common
knowledge and under ordinary circumstances will,
when used to or of another person in such other
person's presence, naturally tend to provoke
violent resentment, that is, words commonly called
"fighting words"... .
Section 106-81 of the City of Atlanta Code of Ordinances
provides:
It shall be unlawful for any person within the
corporate limits of the city to engage in any
conduct described in the following subsections;
(7) Direct fighting words toward another, that
is, words which by their very nature tend to
incite an immediate breach of the peace;
(10) stand or remain in or about any street,
sidewalk, overpass or public way so as to impede
the flow of vehicular or pedestrian traffic, and to
fail to clear such street, sidewalk, overpass or
public way after being ordered to do so by a police
officer or other lawful authority. . . .
"[T]he mere use of obscene and vulgar or profane language is
not necessarily a crime . . . unless such language is also ‘opprobrious
or abusive’ and therefore constitutes ‘fighting words.’” Crollev v.
State, 182 Ga. App. 2, 3-4 (1987) [T]he crucial issue is whether [the]
language constituted words, expressions or acts which have a direct
tendency to cause immediate acts of violence by the person to whom
the speech or act is addressed." Anderson v. State, 231 Ga. App. 807,
App. at 3. When the party using the "opprobrious or abusive” words
alleges that he was provoked into using them, whether the provocation
“[A]ll claims that law enforcement officers have used excessive
force-deadly or not-in the course of an arrest, investigatory stop, ar
other 'seizure' of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness' Standard, rather than under a
‘substantive due process’ approach." Graham v. Connor, 490 US.
386, 395 (1989) (emphasis in original). “Determining whether the
force used to effect a particular seizure is 'reasonable' under the
Fourth Amendment requires a careful balancing of ‘the nature and
quality of the intrusion on the individual’s Fourth Amendment
interests’ against the countervailing governmental interests at stake. Id.
at 396. "Our Fourth Amendment jurisprudence has long recognized
that the right to make an arrest or investigatory stop necessarily
carnes with it the right to use some degree of physical coercion or
threat thereof to effect it. Id. "Because the test of reasonableness
under the Fourth Amendment is not capable of precise definition or
mechanical application, however, its proper application requires
careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect
the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Id. (internal citations and quotation marks
omitted). See, also, Gold v. City of Miami, 121 F.3d 1442, 1446
(11" Cir. 1997), cert. denied, 119 S. Ct. 165 (1998). "The
reasonableness of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight." Graham, 490 U.S. at 396. "[Tyhe
‘reasonableness’ inquiry in an excessive force case is an objective one:
the question is whether the officers' actions are ‘objectively reasonable’
in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation." Id. at 397. This
inquiry includes consideration of "the subject's ability to harm, his
opportunity to harm, and whether someone was in jeopardy of being
harmed by the subject at the time the officer used force against the
subject.” Samples v. City of Atlanta, 916 F.2d 1548, 1551 (11® Cir.
1990).
"The Fourth Amendment does not require officers to use the least
intrusive or even less intrusive alternatives in search and seizure
cases. The only test is whether what the police officers actually did
was reasonable." Menuel v. City of Atlanta, 25 F.3d 990, 996-97
(11" Cir. 1994) (quoting Plakas v. Drinski, 19 F.3d 1143, 1148-50
(7 Cir.), cert. denied, 513 U.S. 820 (1994). "[P]olice must pursue
crime and constrain violence, even if the undertaking itself causes
violence from time to time." Id. at 997.
"[(U)nless a controlling and factually similar case declares the
officials conduct unconstitutional, an excessive-force plaintiff can
overcome qualified immunity only by showing that the officials
conduct lies so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was readily
apparent to the official, notwithstanding the lack of caselaw.” Smith
v. Mattox, 127 F.3d 1416, 1419 (11" Cir. 1997). "The hazy border
between permissible and forbidden force is marked by a multifactored,
case-by-case balancing test." Id. "In this inquiry, the officer's intent,
whether evil or good, is irrelevant." Id. "Because this standard
establishes no bright line, qualified immunity applies unless
application of the standard would inevitably lead every reasonable
officer in [the defendant's} position to conclude the force was
unlawful." Gold, 121 F.3d at 1446.
VI. Analysis
A. Officer Wingo
Officer Wingo contends he is entitled to qualified immunity
as to Plaintiffs’ claims for false arrest because Nesbitt's refusal to go
to the approved exits and shouting that Officer Wingo was "a fucking
bonehead" violated 0.C.G.A. § 16-11-39 (disorderly conduct) and
City Ordinance § 106-81 (fighting words, impeding the flow of traffic)
and because Bagley’s admitted position in a group of people who were
shouting at him for arresting Nesbitt justifies his arrest for
obstruction. He contends he is entitled to qualified immunity as to
Plaintiffs’ claims for use of excessive force because neither Nesbitt nor
Bagley suffered any injuries.
| Plaintiffs contend there are issues of material fact
including: (1) whether Officer Wingo initiated the confrontation by
using obscene and abusive language and provoked the comment from
Nesbitt, (2) whether Nesbitt intended Officer Wingo to hear his
comment, (3) whether Bagley did or said anything that could be
construed as obstructing the arrest of Nesbitt, (4) whether Officer
Wingo attacked Nesbitt and Bagley from behind without warning, (5)
whether Nesbitt resisted arrest, and (6) whether Nesbitt and Bagley
posed a threat to the safety of Officer Wingo or others. :
In his deposition, Wingo testified: (1) after Nesbitt began
walking away, he turned back and shouted, "You are a fucking
bonehead"; (2) he called Nesbitt back to place him under arrest for
disorderly conduct for using loud abusive language; (3) Nesbitt took
a swing at him without provocation: (4) he grabbed Nesbitt and
attempted to take him to the ground and handcuff him; (5) while he
was arresting Nesbitt, Bagley and Martin began yelling and coming
at him; (6) he repeatedly told Bagley and Martin to move away; (7)
while holding Nesbitt, he moved him from left to nght, using him as
a shield between himself and Bagley and Martin; (8) Nesbitt was
resisting the entire time; (9) there was a large crowd of people, many
of whom were yelling, objecting to the treatment of Nesbitt; (10) he
finally got Nesbitt to the ground: (11) he held Nesbitt face down with
his knee in Nesbitt's back while he handcuffed Nesbitt and placed him
under arrest; (12) he went after Bagley who had moved back into the
crowd and arrested him; and (13) Officer Reagan handcuffed Martin,
who was also placed under arrest. Officer Wingo testified that all
three men were obviously intoxicated.
In his deposition, Nesbitt testified: (1) he and his wife
had, at most; two beers each during the approximately five to six
hours they were at the Festival and were not intoxicated; (2) he, his
wife, Martin, and Pete Sobel were leaving the Festival together when
they encountered Officer Wingo; (3) they were trying to walk directly
to their car which was parked about a block away; (4) they came to
an intersection where you could turn left or right or go straight ahead
and they started to walk straight ahead but were still in the middle of
the intersection; (5) Officer Wingo told them to "go the fuck with
everybody else"; (6) he took offense at Officer Wingo's language and
told him he didn't appreciate his talking to them that way; (7) Officer
Wingo said, “I don't give a fuck what you care about" and continued
to be verbally abusive; (8) they then turned and walked off; (9) when
they were about 15 feet away, he tured to his wife, away from
Officer Wingo, and said that Officer Wingo was "a fucking
bonehead"; (10) he never intended Officer Wingo to hear his
comment; (11) one of the men with him turned and saw Officer Wingo
just before Officer Wingo attacked from behind; (12) Officer Wingo
grabbed him in a full nelson and bounced him off a car; (13) he told
Officer Wingo that he was not resisting, but Officer Wingo continued
to throw him around "like a-rag doll," although Officer Wingo never
said anything; (14) at one point Officer Wingo threw him into the side
or front of a car and cracked his two front teeth; (15) Officer Wingo
threw him to the ground so hard he bounced; and (16) Officer Wingo
said, "You hit me in the face" and arrested him. Nesbitt further
testified that after he was arrested, the crowd was visibly upset about
what Officer Wingo had done and several people were stating that
they didn't approve but that no one threatened Officer Wingo and that
Martin never said anything until after Nesbitt was arrested and then
he only asked what Nesbitt was being arrested for. Nesbitt testified
that after being released from jail, he went to the hospital and he had
a wrenched neck and abrasions on his legs and arms in addition to the
two cracked teeth. Finally, Nesbitt testified that when he filed his
complaint with the City of Atlanta Police Department, he offered to
provide names of witnesses but the person taking the information
stated that they would want to know the names later in the
investigation but not at that time; however, no one ever contacted him
for the names of witnesses.
In his deposition, Bagley testified: (1) he and his date each
had two beers during the several hours they were at the Festival but
were not intoxicated; (2) as he was leaving the Festival, he and his
friends stopped for their dates to use the restrooms; (3) while they was
waiting for their dates to return from the restroom. he heard a lot of
people start yelling; (4) he saw a man being jerked arou.xd by a police
Officer; (5) the officer was arresting the man, who kept saying he
wasn't resisting arrest; (6) he and his friends were discu ssing what
was happening, commenting about "how badly the guy was being
treated," when the wife of the man who was arrested asked him if he
saw what happened; (7) when he told her he had, she asked for his
phone number or something and he said, "Sure"; (8) when his date
returned from the restroom, he tured to speak to her; (9) during the
time he was waiting and watching the man being arrested, he never
came within five feet of the police officer and never said anything to
the officer; (10) the police officer hit him from behind at the base of
his skull and neck hard enough to knock him to his knees; (11) the
officer then dragged him by his hair which was long and in a ponytail:
(12) the officer slammed him into a truck or Blazer and flung him to
the ground; (13) immediately before being hit, he heard someone say
something to the effect, "I'm going to get this long haired mother
fucker myself"; (14) the officer put his knee on Bagley's back, pulled
his arms up high behind him, and handcuffed him; (15) the officer
came very close to his face and said "You do want a piece of me, don't
you? You'd love for me to let you out of these cuffs," or something to
that effect and kept poking at him; (16) as more officers arrived at the
scent, the officer who handcuffed him left him without ever explaining
what he was accused of doing; and (17) while waiting, the other two
men who were arrested kept asking why they were being arrested.
Bagley testified that shortly after the incident he began seeing a
chiropractor for headaches, a stiff neck, and shooting pains in his
lower back.
Plaintiffs have presented sufficient evidence to raise
genuine issues of material fact relating to (1) the existence of even
arguable probable cause to arrest them and (2) whether the force used
in making the arrests was excessive. Defendant Wingo is not entitled
to summary judgment based on qualified immunity.
B. Chief Harvard, Sgt. Dawkins, and the City of Atlanta
Chief Harvard and Sgt. Dawkins contend they are
entitled to qualified immunity as to Plaintiffs’ claims against then in
their individual capacities because Plaintiffs can produce no evidence
linking them causally to Officer Wingo's use of excessive force or
false arrest because Plaintiffs cannot show that either Chief Harvard
or Sgt. Dawkins knew of Officer Wingo's alleged predilection toward
false arrest or excessive use of force.
The City of Atlanta contends it is entitled to summary
judgment because Plaintiffs cannot show that it was deliberately
indifferent to their constitutionally protected rights because they
cannot show that it knew or should have known that Officer Wingo
would use excessive force or falsely arrest them. The City contends
there is no evidence that it failed to sufficiently investigate citizen
complaints against its police officers.
Plaintiffs contend the evidence of the complaints about
and investigations of Officer Wingo from 1990 to 1995 are sufficient
to show Officer Wingo had a propensity for violence and that Chief
Harvard, Sgt. Dawkins, and the City knew or should have known of
Officer Wingo's history of misbehavior including a propensity to
verbally abuse citizens, attack without provocation, and to bring
charges but fail to appear in court. Plaintiffs further contend that the
City's duty to supervise its police officers includes the duty to
adequately investigate complaints against the officers and that the —
evidence shows the City failed to properly investigate citizens’
complaints.
Defendants admit that Chief Harvard, Sgt. Dawkins, and
the City of Atlanta were aware of Officer Wingo's disciplinary record
which includes the following relevant claims:
(i) in September 1990, Otis Lett filed a complaint
alleging he was hit in the head several times and kicked in the side by
Officer Wingo as he was being arrested. Officer Wingo admitted that
he hit and kicked Lett although his initial report of the incident
indicated that Lett struck his head twice on the pavement when Officer
Wingo knocked him to the ground. The complaint was investigated by
Sgt. W. M. Adams and was sustained. Officer Wingo was suspended
without pay for two days. Lett also filed a lawsuit against Officer
Wingo and the City of Atlanta alleging the City failed to adequately
train its police officers and Officer Wingo used excessive force in
(2) in September 1990, Chester E. Kelly filed a complaint
alleging he was kicked and hit in the head by Officer Wingo who also
threatened bodily harm. Kelly and his common law wife were
involved in a domestic dispute, and Kelly was arrested but the charges
were dismissed when Officer Wingo failed to appear in court. Officer
Wingo denied that he struck, kicked, or threatened Kelly but alleged;
Kelly was violent and threatened the officers. Other officers at the
scene also denied that Kelly was struck or kicked and concurred that
Kelly was irate, violent, and threatening the officers. The complaint
was investigated by Sgt. C. A. Turner and was not sustained although
Officer Wingo received a one day suspension for failing to appear in
court.
(3) in May 1992, Kota Andrews filed a complaint alleging
Officer Wingo struck him about his back, neck and head with a
nightstick and also cursed and spit on him. Officer Wingo denied the
allegations but admitted that he pushed Andrews (along with other
members of the crowd) with his nightstick because Andrews failed to
move on when directed to do so. Although the incident occurred
during a large group demonstration and a photograph of Andrews and
others appeared in a local newspaper, the report indicates that neither
witnesses to nor photographs of the incident could be found. The
complaint was investigated by Sgt. J. J. Dallas and was found not
Sustained. An appeal of that decision was investigated by Lt. S. M.
O'Brien, and the decision was upheld.
(4) in July 1992, Timothy A. Ware filed a lawsuit against
the City of Atlanta and thirteen police officers including Officer
Wingo. The suit alleged Officer D. C. Johnson shot Ware without
Provocation when the vehicle Ware was driving was stopped after an
automobile chase and that other officers beat Ware when he
was again stopped after leaving the scene where he had been shot. He
contended the City failed to adequately train its officers and that the
failure resulted in the use of excessive force against him. The case
was settled.
(5) in November 1993, Daphne Delany filed a
complaint alleging that during the Arts Festival at Piedmont Park, she
and a friend were almost trampled by Officer Wingo and his horse;
that Officer Wingo showed no concern for their safety-other than to
yell at them to get out of the way; that when she spoke to Officer
Wingo later, he was rude and abrasive and told her that if they had
been hurt it would have been their own fault. Officer Wingo denied
that he was rude and abrasive but stated that his horse was startled by
a noise and started turning in circles; that he asked the two women to
move because his horse was heading toward them; that he ordered
them to move when they failed to comply with his request; that he
didn't see them after he got his horse under control; and that when
Delany approached him, she was irate and very loud. The complaint
was investigated by Sgt. Dawkins. Although the complaint was not
sustained, Officer Wingo was "verbally counseled on the steps for
proper courtesy in dealing with citizens."
(6) in March 1994, Warren Pemberton filed a complaint
alleging he was verbally abused by Officer Wingo during a traffic
stop. Pemberton's allegations were supported by the testimony of
Stefan Bullard who was with Pemberton and was arrested at the time.
Officer Wingo denied Pemberton's allegations and testified that
Pemberton was hostile, very agitated, and used abusive language.
Officer T. A. Cunningham testified that she did not hear Officer
Wingo refer to either Bullard or Pemberton in a discourteous manner
during the time she was present at the scene following the initial stop.
The complaint was investigated by Sgt. Dawkins and was not
sustained.
(7) in April 1995, Terronce Tillman filed a complaint
alleging he and Ron Jackson were approached for no apparent reason
by Orficer Wingo who "kept forcins his ive ui our face’; after
arresting Jackson, Officer Wingo crossed the street and began yelling
at a young man, used his horse to force the man back and forth
between two poles, hit the man on the head causing him to fall to the
A classification of
"Not Sustained" means "evidence was
insufficient to prove or disprove the allegations stated in the
complaint.”
Allyson Collins, who is employed by Human Rights
Watch and has spent approximately four years studying police abuse
and brutality in the United States, investigated and researched citizen
complaints of excessive force or police abuse in Atlanta and other
cities. In 1998, Human Rights Watch published Shielded from
Justice, a report about Collins’ research. In 1996, Human Rights
Watch published Modern Capital of Human Rights? Abuses in the
State of Georgia, a report of the results of Collins’ research in
Georgia. Collins testified that her research showed: (1) there is no
functional civilian review in Atlanta; (2) the internal affairs unit often
conducts incomplete investigations or investigations biased in favor
of the officers; (3) the threshold set for the early warning system is
sufficiently low that officers are not being identified before they
commit additional abuses; (4) internal investigations are probably
biased because they are often performed by the officer's supervisor
"wao stands to lose a lot if it looks as though their underling is
committing abuses and that they're tolerating it"; (5) witnesses to
instances of alleged abuse are frequently not interviewed or their
testimony is ignored; and (6) Atlanta seems to have "a practice of
deliberately failing to implement systems to hold officers accountable
and to terminate officers who shouldn't be officers so that they don't
go on to commit more abuses.”
Although the evidence shows that Officer Wingo was
disciplined several times for failing to appear in court, there is no
evidence that he failed to appear because the charges he had filed were
false. Chief Harvard, Sgt. Dawkins, and the City of Atlanta are
entitled to summary judgment on the claims against them for false
arrest.
Plaintiffs have presented sufficient evidence to show that
there are genuine issues of material fact as to whether the City had a
policy, practice, or custom of failing to adequately investigate citizen
complaints and, if so, whether that policy, practice, or custom was
part of a policy, practice, or custom to allow the use of excessive
force by police officers. Plaintiffs have also presented sufficient
evidence to show that there are genuine issues of material whether
Chief Harvard and Sgt. Dawkins knew that Officer Wingo had a
propensity to use excessive force in making arrests. Chief Harvard,
Sgt. Dawkins, and the City of Atlanta are not entitled to summary
judgment on the claims against them for use of excessive force.
CONCLUSION
For the reasons stated herein, Defendants’ motion for
partial summary judgment is DENIED as to claims against Officer
Wingo for false arrest and for the use of excessive force and against
Chief Harvard, Sgt. Dawkins, and the City of Atlanta for the use of
excessive force and is GRANTED as to claims against Chief Harvard,
Sgt. Dawkins, and the City of Atlanta for false arrest [Civil Action
No. 1:96-CV-1038-CAM, Docket No. 62-1; Civil Action No. 1:96-
CV-151-CAM, Docket No. 57-1]. The amended pre-trial order is due
thirty (30) days from the date of this order.
So ORDERED, this 14th day of September, 1999.
(s/ Charles A. Move, Jr.
UNITED STATES DISTRICT JUDGE
CHARLES A. MOYE, JR.
CAM:J
FILED IN CLERK’S OFFICE
U.S.D.C.- Atlanta
NOV 02 1999
LUTHER D. THOMAS, Clerk
By: /s/ J.White Deputy Clerk
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
JOHN P. NESBITT, JR. and
ANDREW JOSEPH MARTIN, :
Plaintiff(s), : CIVIL ACTION NO.
v. : 1:96-CV-1038-CAM
J.G.WINGO, et al., 7
Defendant(s).
JIMMY SCOTT BAGLEY,
Plaintiff,
CIVIL ACTION NO.
" 1:96-CV-151-CAM
J.G. WINGO, et al.,
Defendants.
ORDER
On September 14, 1999, the Court entered an order denying
ts' motion for reconsideration of the 14, 1999
Order
LEGAL STANDARDS AND ANALYSIS
I.
Motions for reconsideration should be filed Only when
Engi ‘
(N.D.Ga. 1995), arg 37 F.2d 1242 (11th Cir 1996).
dants contend the Court failed to rule on their motion
Defendants’ motion to strike and reply brief were filed in
the Clerk's Office on September 3, 1999, They were not entered on
Consequently, the Court 8rants Defendants' motion for reconsideration
as to Plaintiffs' claims of excessive force against Chief Harvard, Sgt.
Dawkins, and the City.
II. Motion to Strike
of a motion for Summary Judgment] is to file a notice of objection to
the challenged testimony." Morgan v. Sears, Roebuck and Co, 700 F.
Supp. 1574, 1576 (N.D. Ga. 1988).
The Court denies Defendants’ motion to strike but will consider
Defendants’ objections in evaluating the applicability of Collins' report
and testimony to Defendants’ motion for summary judgment.
III. Motion tor Summary Judgment
The legal standards for evaluating a motion for summary
judgment were stated in the September 14, 1999 Order and will not
be restated here. |
Defendants contend the report and deposition testimony of
Allyson Collins should be excluded because: (1) Plaintiffs failed to
comply with the requirements of Fed. R. Civ. P. 26(a)(2)(B) and the
Court granted Defendants’ motion in limine to exclude the testimony
of Collins; (2) the proffered report, Shielded from Justice, is
inadmissible hearsay; (3) Collins is not qualified to testify as an
expert; and (4) Collins' testimony is outside the scope of the reopened
discovery. Defendants further contend that, without the Collins
evidence, there is insufficient evidence to show that Chief Harvard,
Sgt. Dawkins, and the City should be held liable for Wing's alleged
use of excessive force.
Plaintiffs contend Defendants had notice of the identity
of Collins and the nature of the anticipated testimony as early as
December 1998; that Defendants were given notice of Collins’
deposition but filed no objections and, in fact, participated in the
deposition; that Collins, as an outside investigator, is competent to
testify; that the report of an investigation of a police department by an
outside body may be admitted into evidence; and that the evidence is
sufficient to show that Chief Harvard, Sgt. Dawkins, and the City
were on notice of Wingo's tendency to use excessive force.
In response to Defendants’ motion in limine objecting to
the expert testimony of Allyson Collins, the Court found that
Plaintiffs had not complied with Fed. R. Civ. P. 26(a)(2)(B) and
Sustained tie objection. After declaring a mistrial, the Court granted
Plaintiffs’ motion to reopen discovery for sixty days. Although
Plaintiffs provided several reasons to reopen discovery, the order
granting the motion placed no limits on the discovery which might be
taken. Collins was deposed on July 6, 1999, with counsel for all
parties present.
‘ A municipality’s failure to correct the constitutionally
offensive actions of its police department may rise to the: level of a
“custom or policy’ if the municipality tacitly authorizes these actions
or displays deliberate indifference towards the police misconduct."
Brooks v, Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987). "A single
incident by a lower level employee acting under color of law . . . does
not suffice to establish either an official policy or a custom. However,
if custom can be established by other means, a single application of
the custom suffices to establish that it was done pursuant to official
policy and thus to establish the agency's liability." Fletcher v.
O'Donnell, 867 F.2d 791, 793 (3rd Cir.), cert. denied, 492 U.S. 919
(1989). A large number of complaints alone is insufficient to show
deliberate indifference as "the number of complaints bears no relation
to their validity.” Brooks, 813 F.2d at 1193. Where the complaints in
evidence have been "fully investigated and found to be lacking in
merit," the evidence is insufficient to show that the city "knew or
should have known that the natural consequences of its policy and
practices would be the deprivation of constitutional rights." Id.
One of the exceptions to the hearsay rule in civil actions
are "factual findings resulting from an investigation made pursuant to
authority granted by law, unless the sources of information or other
circumstances indicate lack of trustworthiness.” Fed. R. Evid.
803(8)(C). Thus, the report of a governmental agency authorized by
law to conduct a particular investigation may be admitted as evidence.
See Gentile v. County of Suffolk, 926 F.2d 142, 148 (2nd Cir. 1991).
Plaintiffs have not cited, and the Court could not find, any authority
permitting the admission, without further validation, of a report by a
non-governmental agency conducting its own investigation.
Collins is employed by Human Rights Watch as a
researcher, author, and editor. Human Rights Watch is “an
independent, nongovernmental organization, supported by
contributions from private individuals and foundations worldwide."
Human Rights Watch, Shielded fr m Justice: Police Brutalitv and
Accountability in the United States (1998). Collins was author of
Shielded from Justice. During a year-and-a-half to two-year period
Collins visited the cities reported on in Shielded from Justice and
examined documents from those cities as well as corresponded with
and interviewed police officials, city officials, and justice department
officials. Atlanta was one of the cities investigated by Collins.
Plaintiffs do not contend Collins is an expert witness.
Further, although Collins was identified as a witness pnor to the
beginning of the trial in March 1999, she has not been qualified as an
expert witness pursuant to Fed. R. Civ. P. 26(a)(2). Plaintiffs have
failed to show that Collins has any first-hand knowledge of any
matters relevant to this case. Collins’ report, Shielded from Justice,
was not produced by a governmental agency and is, therefore, not
admissible without proof of its trustworthiness. Neither Collins’
testimony nor her report are admissible.
In the September 14, 1999 Order, the Court noted that
Chief Harvard, Sgt. Dawkins, and the City were aware of Officer
Wingo's disciplinary record and identified seven relevant claims in
that record. All of the claims were investigated by the police Office
of Professional Standards. Five of the claims alleged physical
violence, one alleged rudeness, and one alleged verbal abuse. Of the
five alleging physical violence, one (from September 1990) was
sustained and the related lawsuit settled, one was settled but alleged
excessive force by several Atlanta police officers in addition to
Officer Wingo, and three were "not sustained". One of those "not
sustained" occurred in April 1995, after the incident at issue here. As
stated in the September 14, 1999 Order, "not sustained" means
“evidence was insufficient to prove or disprove the allegations stated
in the complaint." In none of the seven claims was Officer Wingo
exonerated. Nor were any of the claims "unfounded." Three of the
complaints were investigated by Sgt. Dawkins: the complaint alleging
rudeness, the complaint alleging verbal abuse, and the April 1995
complaint alleging physical violence. Because the complaints were
"not sustained," they are insufficieait cc put Chief Harvard, Sgt.
Dawkins, and the City on notice of Officer Wingo's alleged tendency
to use excessive force.
The mvestigzuve feporis Of severai of the “not
sustained" instances suggest that the police witnesses supported
Officer Wingo's testimony wacreas theno.. . ...ce witnesses supported
the testimony of the complainant or that witnesses on behalf of the
complainant could not be found. Nesbitt *-:-' “ed that when he filed a
complaint with the City, he offered to provice names of witnesses, the
person taking the information declined to take the names telling him
IBEST AVAILABLE COPY
that they would want to know the names later in the investigation, and
that no one ever contacted him for the names of witnesses.
Without the testimony of Collins, there is insufficient
evidence from which a jury could conclude that the City had a policy,
which a jury could conclude that chief Harvard, Sgt. Dawkins, and the
City should have known of Officer Wingo's alleged tendency to use
excessive force. Chief Harvard, Sgt. Dawkins, andthe City.of Atlanta. —_—_
are entitled to judgment on the claims against them for the
use of excessive force.
CONCLUSION
For the reasons stated herein, Defendants’ motion for
reconsideration is GRANTED [Civil Action No. 1:96-CV-15 1-CAM,
Docket No. 69-1]; Defendants’ motion to strike the report and
deposition testimony of Collins is DENIED [Civil Action No. 1:96-
CV-151-CAM, Docket No. 66-1]; and Defendants' motion for
summary judgment as to the Plaintiffs' claims against Chief Harvard,
Sgt. Dawkins, and the City of Atlanta for the use of excessive force
is GRANTED [Civil Action No. 1:96-CV-1038-CAM, Docket No.
62-1; Civil Action No. 1:96-CV-151-CAM, Docket No. 57-1]. The
amended pre-trial order is due thirty (30) days from the date of this
order.
Pursuant to Fed. R. Civ. P. 54(b), Clerk of Court is
directed to enter final judgment in favor of Chief Harvard, Sgt.
Dawkins, and the City of Atlanta.
SO ORDERED, this day of November, 1999.
/s/ Charles A. Move. Jr.
UNITED STATES DISTRICT JUDGE
CHARLES A. MOYE, JR. \
CAM:J
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 22 2001
THOMAS K. KAHN
CLERK
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 99-15000-FF
JIMMY SCOTT BAGLEY,
Piaintiff-Appellant,
versus
J. G. WINGO,
BEVELRY HARVARD, as Chief of
Police of the City of Atlanta,
Georgia, et al.,
Defendants-Appellees.
wee ee ee ee a ee ee Ke a ea ee
On Appeal from the United States District Court for the
Northern District of Georgia
ON PETITION(S) FOR REHEARING AND PETITION(S) FOR
REHEARING EN BANC
(Opinion , ith Cir. 19_,
F.2d )
Before: CARNES and BARKETT, Circuit Judges, and POLLAK',
District Judge.
PER CURIAM:
The Petition(s) for Rehearing are DENIED and no member of this
panel nor other Judge in regular active service on the Court having
requested that the Court be polled on rehearing en banc (Rule 35,
Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5),
the Petition(s) for Rehearing En Banc are DENIED.
ENTERED FOR THE COURT:
/s/ Rosemary Barkett
UNITED STATES CIRCUIT JUDGE
1. Honorable Louis H. Pollack, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
i!
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
NO. 99-15000-FF
JIMMY SCOTT BAGLEY,
Plaintiff-Appellant,
versus
J. G. WINGO,
BEVELRY HARVARD, as Chief of
Police of the City of Atlanta,
Georgia, et al.,
Defendants-Appellees.
On Appeal from the United States District Court for the
Northern District of Georgia
BEFORE: CARNES, and BARKETT, Circuit Judges, and
POLLAK', District Judge.
PER CURIAM:
The petition(s) for rehearing filed by Appellant is DENIED.
ENTERED FOR THE COURT:
/s/ Rosemary Barkett
1._Honorable Louis H. Pollack, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation
42 USCA § 1983
Every person who, under color of any statute, ordinance, regulation,
custom, Or usage, of any State or Territory or the District of
relief was unavailable. For the purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
28 USCA § 1343
(1) To recover damages for injury to his person or property,
or because of the deprivation of any right or privilege of a citizen of
the United States, by any act done in furtherance of any conspiracy
mentioned in section 1985 of Title 42;
(2) To recover damages from any person who fails to prevent
or to aid in preventing any wrongs mentioned in section 1985 of Title
42 which he had knowledge were about to occur and power to prevent:
(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right, privilege
or immunity secured by the Constitution of the United States or by
any Act of Congress providing for equal rights of citizens or of all
Persons within the jurisdiction of the United States:
(4) To recover damages or to secure equitable or other relief
under any Act of Congress providing for the protection of civil nghts,
including the right to vote.
(b) For Purposes of this section--
(1) the District of Columbia shall be considered to be a
State; and
(2) any Act of Congress applicable exclusively to the District
of Columbia shall be considered to be a statute of the District of
Columbia.
nit itution, Am nt I
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
United States Constitution, Amendment IV
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause.
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
nited Stat itution. Amen t V
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except
in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person
be subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just
compensation.
United States Constitution. Amendment XTV
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and
of the State wherein thev reside. No State saall make or enforce any
law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several
States according to their respective numbers, counting the whcle
number of persons in each State, excluding Indians not taxed. But
when the right to vote at any election for the choice of electors for
President and Vice President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens
of the United States, or in any way abridged, except for participation
in rebellion, or other crime, the basis of representation therein shall be
reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of
age in such State.
Section 3. No person shall be a Senator_or Representative. in
Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any State,
who, having previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof. But Congress may by a vote of two-thirds of each _
House, remove such disability.
Section 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of pensions
and bounties for services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United States nor any State
shail assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any claim for the
loss or emancipation of any slave: but all such debts, obligations and
claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.