Donald L. Hays, Jr., and Michael C. Potter, Cross-Appellants v. Jefferson County, Kentucky, Wilbur Bilyeu and Russell McDaniel Cross-Appellees , 668 F.2d 869 ( 1982 )

BENJAMIN F. GIBSON, District Judge.

This civil rights case arose from a violent altercation between police and demonstrators on the night of September 26, 1975, at Bittersweet Shopping Center in southwestern Jefferson County, Kentucky. The final judgment below awarded plaintiff Hays compensatory damages of $20,000 against Jefferson County, and $5,000 each against Col. Russell McDaniel and Major Wilbur Bilyeu. Plaintiff Potter was awarded compensatory damages of $2,000 against Jefferson County, and $500 each against McDaniel and Bilyeu. Jefferson County was further ordered to pay $20,000 to counsel for plaintiffs as attorneys fees.

The court below, on a motion for judgment notwithstanding the verdict, remitted the jury’s award of punitive damages to plaintiff Hays of $81,000 against Jefferson County and $9,000 against Bilyeu. The award of punitive damages to plaintiff Potter of $9,000 against Jefferson County and $1,000 against Bilyeu was also remitted.

The Bittersweet Shopping Center is across from Southern High School. The September 26, 1975 demonstration was one of many that took place during the preceding weeks to protest court ordered busing for school desegregation, which had been implemented on September 4, 1975 with the beginning of the school year. The demonstrations occurred at sites throughout Jefferson County and in downtown Louisville as well as the Bittersweet Center. Many of these demonstrations were peaceful and orderly, although some had resulted in varying degrees of violence.

The September 26th demonstration at Bittersweet began uneventfully. Later, a fire was built in the front of the parking lot, adjacent to Preston Highway. Although originally contained, the fire grew over time. The crowd also grew as the day progressed from about 50 to 75 people in the morning to approximately 300 to 500 people by late in the evening. At about 7:30 or 8:00 p. m. defendant Bilyeu made a determination that the fire was becoming dangerous and should be extinguished. He called in reinforcements and within a few minutes 40 to 50 police officers arrived. With the presence of these policemen the crowd became agitated. After consulting with some of the leaders of the'demonstration Major Bilyeu sent them away and called the fire department. When the firemen arrived, however, a small group of demonstrators prevented them from putting the fire out. At this time Major Bilyeu decided that the crowd was out of control and had to be dispersed. He sent the firemen away and recalled the police. The police assembled in the Southern High School parking lot and prepared to disperse the crowd.

The descriptions of various witnesses as to what occurred shortly before and at the time the police entered the Bittersweet parking lot were conflicting. There was conflicting testimony as to the number of warnings to disperse given to the crowd, the number of demonstrators that were still at the scene at the time the police entered the parking lot, the amount of tear gas used, and what the crowd was doing.

After the warnings to disperse, tear gas was fired into the crowd. Within 15 to 30 seconds the police crossed the street and entered the crowd. The police began their advance toward the crowd before Major Bilyeu ordered them to do so. He attempted to stop them with the repeated bullhorn command “don’t cross the street.” When this proved ineffective, however, he took no further action to control them.

Plaintiffs’ witnesses from all areas of the Bittersweet Shopping Center testified to widespread damage to vehicles caused by police officers. There was even some police testimony as to property damage caused by police. Nor was the police violence confined to property. Several witnesses testified to seeing police officers striking demonstrators and passersby with their riot sticks and pushing and kicking some of them.

The police were all wearing blue jump-suits, gloves, helmets and gas masks. Many witnesses testified to an inability to identify any individual police officers although they attempted to do so. Defendants admit that identification patches had not been sewn onto the jumpsuits, at least in part because the suits had been obtained only a short time before this incident. There was considerable testimony that the vast majority of the officers were not wearing their nametags on the jumpsuits. A Jefferson County Police Department lieutenant testified that probably 90 percent of the police officers had no identification tags on.

During the course of the violence that evening plaintiff Potter was struck across the knuckles and repeatedly on the back and shoulders by a group of unidentified police officers. Plaintiff Hays was severely beaten and kicked into a grand mal seizure and unconsciousness by another group of five or six unidentified officers. They were also subjected to considerable verbal abuse. Both men were taken to the hospital where Potter was treated and released. Hays spent approximately ten days in the hospital. Each of the plaintiffs had been taking part in the demonstration and had taken part in others previously. Neither had had any difficulty at any other demonstration, nor was either arrested or charged with a crime for their activities at the Bittersweet Shopping Center.

The defendants in this action are the county and the chief and deputy chief of the county police department. Plaintiffs’ theory of liability was based on the defendants’ negligent training, supervision, and control of the unidentified officers. The trial court’s instructions were based on a simple negligence standard.¹ Because this Court holds that simple negligence is insufficient to support liability of high police officials and municipalities for inadequate training, supervision, and control of individual officers, we must vacate the verdict and remand this matter to the District Court for a new trial.

The question of whether simple negligence is sufficient to support a civil rights action for the violation of constitutional rights, either under 42 U.S.C. § 1983 or directly under the- constitution with jurisdiction based on 28 U.S.C. § 1331, has been troublesome to the bench and bar for some time. In Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), Mr. Justice Rehnquist, writing for the majority of the Supreme Court, said “[Wjhether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action.” Id. at 139-40, 99 S.Ct. at 2692. Several of the lower federal courts have addressed the question in various contexts with seemingly varying results.

The law is clear that liability of supervisory personnel must be based on more than merely the right to control employees. Without more, such a theory would allow liability on a respondeat superior basis — a basis expressly rejected by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) under § 1983, and by this court in Jones v. City of Memphis, 586 F.2d 622 (6th Cir. 1978) in a direct constitutional action pursued in accordance with the case of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Specifically, the Supreme Court in Monell stated: “By our decision in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability. See 423 U.S., at 370-371 [96 S.Ct., at 603-604].” Monell v. Department of Social Services, 436 U.S. at 694 n.58, 98 S.Ct. at 2037. The Rizzo case requires that there must be a direct causal link between the acts of individual officers and the supervisory defendants. Rizzo v. Goode, 423 U.S. at 370-71, 96 S.Ct. at 603-604. It is essentially this same concept that requires that the implementation or execution of a governmental policy or custom be shown before liability can be imposed on a municipality. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

The language and history of § 1983 are silent as to whether supervisory officials and municipalities can be held liable for negligently having failed to adequately train, supervise, and control individual police officers who violate a plaintiff’s constitutional rights. The language of § 1983 providing that a person who “subjects, or causes to be subjected” another to a deprivation of constitutional rights appears on its face to be broad enough to encompass merely negligent deprivations. The broad potential of this language is bolstered to some extent also by the Supreme Court’s declaration that “[sjection [1983] should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). The trend of the case law, however, has not been in this direction. Rather, the case law has limited § 1983 so as not to reach isolated instances where a negligent failure to adequately supervise, train, or control was involved. See, e.g., Jamison v. McCurrie, 565 F.2d 483 (7th Cir. 1977) ; Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976) (en banc); Parker v. McKeithen, 488 F.2d 553 (5th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974); Edmonds v. Dillin, 485 F.Supp. 722 (N.D. Ohio 1980); Rheuark v. Shaw, 477 F.Supp. 897 (N.D. Texas 1979); Leite v. City of Providence, 463 F.Supp. 585 (D.R.I. 1978); Schweiker v. Gordon, 442 F.Supp. 1134 (E.D.Pa.1977); cf. Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 603-604, 46 L.Ed.2d 561 (1976). But see, Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (D.C.Cir.1971), rev’d on other grounds sub nom., District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973).

A major part of the doctrinal foundation for requiring a higher degree of culpability than ordinary negligence is the concern that such a standard would unduly impede or circumscribe the performance of official duties. The courts look for some proof that a defendant has a culpable state of mind— that the action or failure to act was to some degree deliberate rather than inadvertent. The verbal formulations of this concept have varied from gross negligence or recklessness, Owens v. Haas, 601 F.2d 1242 (2nd Cir. 1979); White v. Rochford, 592 F.2d 381 (7th Cir. 1979); Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970); Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.1978); Schweiker v. Gordon, 442 F.Supp. 1134 (E.D.Pa.1977); Perry v. Elrod, 436 F.Supp. 299 (N.D.Ill.1977), to actions or failures to act which, though not intended to harm the plaintiff, were so likely to violate plaintiffs’ rights and cause them injury that the harm was “substantially likely to result,” Rheuark v. Shaw, 477 F.Supp. 897 (N.D. Texas 1979) , to “purposeful non-feasance” in the face of a duty to act, see Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976), to an apparent requirement of intent, see Edmonds v. Dillin, 485 F.Supp. 722 (N.D. Ohio 1980) , but in practical terms the underlying concept appears to be similar in the vast majority of the cases.²

The major impediment to simple negligence as a basis for liability of supervisory officials and municipalities, however, is the Supreme Court’s decision in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). In Rizzo the Court reversed the lower court’s grant of injunctive relief against Philadelphia city and police department officials because the plaintiffs had failed to show an “affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by petitioners — express or otherwise — showing their authorization or approval of such misconduct.” Id. at 371, 96 S.Ct. at 604. The Court made it clear that a showing of “direct responsibility” for the actions of the individual officers is a prerequisite for liability. The mere “failure to act [even] in the face of a statistical pattern” of incidents of misconduct was held to be insufficient to base liability on. Id. at 376, 96 S.Ct. at 606. Although Rizzo involved equitable relief in the form of a somewhat comprehensive injunction of future conduct, and federalism concerns played a not insignificant part in the decision, this same standard has been adopted and applied in cases involving monetary relief. E.g., Leite v. City of Providence, 463 F.Supp. 585, 590 (D.R.I.1978); Perry v. Elrod, 436 F.Supp. 299, 303-04 (N.D.Ill.1977); Delaney v. Dias, 415 F.Supp. 1351, 1354 (D.Mass.1976). The result of Rizzo and subsequent cases in the lower federal courts applying the standards it announced is that a failure of a supervisory official to supervise, control, or train the offending individual officers is not actionable absent a showing that the official either encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers. See, e.g., Leite v. City of Providence, 463 F.Supp. 585 (D.R.I. 1978).

Where, as here, the constitutional violation was not alleged to be part of a pattern of past misconduct, a supervisory official or a municipality may be held liable only where there is essentially a complete failure to traiii the police force, or training that is so reckless or grossly negligent that future police misconduct is almost inevitable, e.g., Leite v. City of Providence, 463 F.Supp. at 590, or would properly be characterized as substantially certain to result, Rheuark v. Shaw, 477 F.Supp. 897 (N.D. Texas 1979).

Although many of the cases cited for the above analysis were brought pursuant to § 1983, the court finds the reasoning therein equally apposite to direct constitutional actions sanctioned by the Supreme Court’s reasoning in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The court, at least on the facts here presented, sees no basis for different standards in the two types of actions.

There remain some significant issues to be disposed of so that on remand a new trial may be properly conducted. Defendant Jefferson County challenges the judgment against it as impermissibly based on a respondeat superior theory of liability. Respondeat superior was rejected as a sole basis for municipal liability in a 1983 action by Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and in a Bivens action by this Court in Jones v. City of Memphis, 586 F.2d 622 (6th Cir. 1978). The heart of the County’s challenge concerns the following jury instruction given by the trial judge below:

This is also a civil action brought by the two plaintiffs asking for damages, both compensatory and punitive, because of alleged negligent acts or omissions of high ranking Jefferson County officials, namely Police Chief Russell McDaniel and Assistant Chief Wilbur Bilyeu, arising out of actions of officers of the Jefferson County Police Force which took place on September 26, 1975 at the Bittersweet Shopping Center. A government can act in this case, only through its high ranking officials, Chief McDaniel and Assistant Chief Bilyeu. The burden is on the plaintiffs to establish by a preponderance of the evidence in this case that the negligence of one or both of the officials, Chief McDaniel and Assistant Chief Bilyeu, was a proximate cause of any injuries and consequent damages sustained by the plaintiffs.

In order for plaintiffs to recover against defendant, Jefferson County, the burden of proof is upon the plaintiffs to establish each of the following elements:

1. That officers of the Jefferson County Police Force knowingly beat, bruised and wounded plaintiffs or either of them about the body.

2. That Chief McDaniel and Assistant Chief Bilyeu were employed by Jefferson County as Chief of Police and Assistant Chief of Police respectively, at the time of the injuries referred to herein.

3. That Chief McDaniel and Assistant Chief Bilyeu, or either of them, negligently supervised, trained or controlled the police officers under their command at Bittersweet Shopping Center and that such negligence in supervision, training and control was the proximate cause of the injuries of plaintiffs or either of them, inflicted upon them by police officers on the occasion complained of.

You are further instructed that you may not return a verdict against the defendant, Jefferson County, if you believe from the preponderance of the evidence that the plaintiffs were injured by policemen of Jefferson County merely because of the fact that these policemen were employees of Jefferson County, Kentucky. In other words, if you believe that Chief McDaniel and Assistant Chief Bilyeu adequately supervised, trained and controlled the police officers, then you shall return a verdict for the defendant,. Jefferson County, even though you may believe, from the preponderance of the evidence, that individual policemen in employment of Jefferson County knowingly beat, bruised and wounded the plaintiffs on the occasion complained of. (emphasis added)

Jefferson County argues, in spite of the last paragraph quoted above, that this instruction, in particular the emphasized section, bases its liability solely on the employment relationship between it and the other defendants, which it equates with the respondeat superior doctrine. This argument, however, ignores the fact that a governmental entity can only act through its principal officials, e.g., Leite v. City of Providence, 463 F.Supp. at 589. The distinction drawn by the trial judge in the final paragraph of the above instruction correctly distinguished the acts of the unidentified individual officers, for which Jefferson County can not be held responsible absent a policy or custom causing such conduct, e.g., Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 603-604, 46 L.Ed.2d 561 (1976), and a failure to train, supervise, or control those officers by defendants Chief of Police McDaniel and Assistant Chief Bilyeu, whose failure, for this purpose, would be the failure of Jefferson County as well. The negligence standard in paragraph 3 of the instruction, of course, must be modified to accord with this opinion, but the instruction is otherwise proper.

Defendants next argue that the trial court’s refusal to give a contributory negligence instruction to the jury was error. It is their contention that the plaintiffs’ failure to leave the scene after police orders to disperse was contributorily negligent on their part. Such an argument on the facts of this case is groundless. Plaintiffs were not injured negligently, they were intentionally beaten by the unidentified police officers. Contributory negligence has never been a defense to intentional tortious conduct. Such conduct differs from negligence not only in degree but in kind, and in the societal condemnation attached to intentional torts, W. Prosser, Law of Torts, 426 (4th ed. 1971). Plaintiffs’ alleged negligence in failing to leave the area in no way relates to the allegations against the defendants in this case.

Addressing the other issues raised by the parties, relating to the good faith defense, punitive damages ³ and attorney fees, is not necessary in light of today’s decision. The parties will have the opportunity to further address these issues below as appropriate.

Accordingly, the judgment below is vacated, and the case is remanded to the district court for further proceedings not inconsistent with this opinion.

1 . The trial court stated that the action as based on “the alleged negligent acts or omissions” of the defendants, (Tr. Vol. IX, at 49), that the “burden of the proof is on the plaintiffs to establish by a preponderance of the evidence that the negligence of one or both of the officials” caused the damages (id.), and “that Chief McDaniel and Assistant Chief Bilyeu or either of them negligently supervised, trained or controlled the police officers under their command at Bittersweet Shopping Center and that such negligence” caused the injuries (id. at 50) (emphasis added).

The instructions defined the term negligence as follows:

You are further instructed that negligence is lack of ordinary care. It’s the failure to exercise the degree of care which a reasonably prudent person would have exercised under the same circumstances. It may arise from doing an act which a reasonably prudent person would not have done under the same circumstances or, on the other hand, for failing to do an act which a reasonably prudent person would have done under the circumstances.

Negligence requires a foreseeable danger of injury to another and conduct which is unreasonable in proportion to the danger. A person is not responsible for the consequences of his conduct unless the risk of injury was reasonably foreseeable. The exact occurrence or precise injury need not have been foreseeable, but injury as a result of negligent conduct must have been not merely possible but probable. If a reasonably prudent person couldn’t foresee any injury as a result of his conduct or if his conduct was reasonable in light of what he could foresee, there’s no negligence.

Conversely, there is negligence if a reasonably prudent person could foresee injury as a result of his conduct and his conduct was unreasonable in the light of what he could foresee. Ordinary and prudent care is that care which persons of ordinary prudence, .. . would use in order to avoid injury to themselves or others.

Tr. Vol. IX, at 51-52.

2 . But see, Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (D.C.Cir.1971), rev’d on other grounds sub nom., District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) (negligent failure to train or supervise police force is actionable under § 1983). As will be seen, infra, it is significant that this case predates the Supreme Court’s decision in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

3 . In the recent case of City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), the Supreme Court held that municipalities are immune from punitive damages in § 1983 actions.