Brown v. Bryan County, OK

Revised August 8, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-40877
_____________________
JILL BROWN,
Plaintiff-Appellee-Cross-Appellant,
versus
BRYAN COUNTY, OK; ET AL.,
Defendants,
BRYAN COUNTY, OK,
Defendant-Appellant-Cross-Appellee,
STACY BURNS,
Defendant-Cross-Appellee.
_________________________________________________________________
Appeals from the United States District Court for the
Eastern District of Texas, Sherman
_________________________________________________________________
July 18, 2000
Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal presents a case brought under 42 U.S.C. § 1983 for
injuries resulting from excessive force by an arresting officer,
for which Bryan County, Oklahoma, was found liable by a jury on the
basis of its failure to provide any training to a reserve deputy
who was allowed to make arrests. Stacy Burns, a young,
inexperienced reserve sheriff’s deputy, without the benefit of
training or supervision, participated in a car chase and arrest
involving the use of force. Because of the manner in which Burns
effectuated the arrest, the plaintiff, Jill Brown, suffered severe
knee injuries. The question is whether Bryan County can be held
liable under Monell v. New York City Dept. of Social Servs., 436
U.S. 658 (1978), for her injuries because the County failed to
train Burns.
We conclude that the evidence, given the standard of review of
a jury verdict, fairly allowed the jury reasonably to conclude that
Bryan County’s sheriff, admittedly a policymaker, failed to train
Burns in the light of facts demonstrating an obvious need to train
him. We think the jury reasonably concluded that, given notice
of the need to train Burns and that the consequences of the failure
to train him were so obvious, that the County is culpable for its
failure to train him. Furthermore, the evidence allowed a
reasonable inference that the decision not to train Burns was the
“moving force” behind, i.e., directly caused, the injuries suffered
by Brown. Given these conclusions, we hold that Brown established
that Sheriff Moore’s decision not to train Burns constituted a
policy decision for which the County is liable under § 1983.
The case has a significant procedural history. We have issued
two previous opinions, see Brown v. Bryan County, Oklahoma, 53 F.3d
1410 (5th Cir. 1995), withdrawn and superseded by, 67 F.3d 1174
(5th Cir. 1995), and the Supreme Court has considered the case.
2
See Bd. of the County Comm’ns of Bryan County v. Brown, 520 U.S.
387 (1997). When the Supreme Court reversed our decision upholding
liability against the County on the basis of its hiring decision,1
we remanded to the district court for further consideration.
Specifically, the district court had to decide whether liability
against the County could be upheld on the basis of the jury’s
finding that the County had a policy of not training its officers.
117 F.3d 239, 240 (5th Cir. 1997). On remand, the district court
denied the County’s motion for judgment as a matter of law and
upheld the earlier jury verdict in favor of the plaintiff. The
County appeals the district court’s denial of its j.n.o.v. motion.
In a cross-appeal to this second judgment, Brown complains that the
district court struck all compensatory damages for lost income and
lost earning capacity, and reduced to a nominal award damages
awarded for her abstract injuries from the violation of her
constitutional rights.
We affirm the judgment as it relates to the County’s liability
under 42 U.S.C. § 1983. We also affirm the district court’s
judgment with respect to damages.
1
With this vacatur, our previous opinion is no longer the law
of the case. See Johnson v. Chicago Bd. of Educ., 457 U.S. 52, 53-
54 (1982) (“Because we have vacated the Court of Appeals’ judgments
in this case, the doctrine of the law of the case does not
constrain either the District Court or, should an appeal
subsequently be taken, the Court of Appeals.”); O’Connor v.
Donaldson, 422 U.S. 563, 577 n.12 (1975) (“Of necessity, our
decision vacating the judgment of the Court of Appeals deprives
that court’s opinion of precedential effect, leaving this Court’s
opinion and judgment as the sole law of the case.”).
3
I
The jury awarded Jill Brown extensive damages on her 42 U.S.C.
§ 1983 claim against the County for injuries she sustained because
of the excessive force used by the arresting officer, Reserve
Deputy Burns. The jury found that Bryan County policymaker,
Sheriff B. J. Moore, failed to train Burns in the proper use of
force.2 The jury specifically found that “the training policy of
Bryan County . . . was so inadequate as to amount to deliberate
indifference to the constitutional needs of the plaintiff.” Brown
argues that this failure-to-train policy was the “moving force”
behind her injury. This much is undisputed: Sheriff Moore is a
final policymaker for Bryan County and Burns used excessive force
against Brown in violation of her Fourth Amendment rights to be
free from unreasonable seizures. The question is whether the
County can be held liable for these injuries under § 1983.
II
The underlying events occurred in the early morning hours of
May 12, 1991. Todd Brown was driving a pickup truck from Texas
into Oklahoma, with his wife as a passenger, when he saw a
roadblock ahead. He decided, for reasons the jury could have
accepted as plausible, to turn around. The execution of the 180
degree turn and the speed of the pursuit that followed were hotly
2
The jury also reached similar conclusions about the County’s
decision to hire Burns. The jury’s conclusions with respect to
Brown’s failure-to-train claim were separate and apart from the
hiring conclusions.
4
disputed before the jury. Jill Brown claims to have been asleep
through most of this event. The County deputies eventually stopped
the Browns’ truck on an unlighted country road.
The events leading to Jill Brown’s injuries were also
disputed. As we must, we accept the version of the facts most
favorable to upholding the verdict. Indeed, it is not contested
that Burns’s application of excessive force resulted in a
constitutional injury in violation of Brown’s Fourth Amendment
rights. Burns removed Brown from the truck using, what he claimed,
an “arm bar” technique. Brown testified that Burns used force
despite her best efforts to comply with Burns’s command to her to
exit the truck. Burns says that he needed to use this technique
because she was unresponsive to commands to get out of the
vehicle.3 According to Burns, Brown was bending forward in her
seat after Burns opened the truck door. Burns interpreted this as
a threatening gesture, that is, she may have been reaching for a
gun. Burns, however, admits that Brown did not struggle, did not
strike out, and did not even say anything to him during the course
of the event. In the process of removing Brown, Burns grabbed her,
3
The jury had reason to question Burns’s credibility. On the
stand, Burns admitted lying in his deposition and to changing his
deposition answer only when threatened with a perjury charge.
Burns then proved less than forthcoming in his trial testimony,
omitting facts of his arrest record until pressured during cross-
examination. Thus, the jury may have been skeptical of his other
testimony on critical issues, especially those facts going to any
training he might have received, or, for instance, his claim that
he took the Minnesota Multiphasic Personality Inventory test.
5
pulled her from the truck, and spun her to the ground. She landed
on the pavement knees first. Either during or immediately after
application of the “arm bar” technique, Burns had at least one knee
in Brown’s back. As a result of the incident, Brown suffered
severe knee injuries.
It is important to note some pertinent background facts
relating to Burns. At the time of the incident, Burns was only
twenty-one years old. He was also inexperienced. He had been on
the force for a matter of weeks. He had no experience as a law
enforcement officer before beginning work as a reserve deputy for
the County. His educational background consisted of a high school
diploma and a few semesters of college. Although purporting to
have majored in criminal justice, Burns testified that he had not
taken any law enforcement courses. His work experience consisted
of general delivery and sales--“kind of a ‘go-fer’”--for two
furniture companies.
His record of having engaged in some inappropriate conduct
before joining the force is undisputed. Within the two-year
period before his hire, Burns had been arrested for assault and
battery, resisting arrest, public drunkenness, driving while
intoxicated, possession of false identification, driving with a
suspended license, and nine moving traffic violations.4 At the
time he was hired, Burns was in violation of the terms of his
4
The more serious of these offenses all arose from one
incident involving a fracas while a college student.
6
probation; for that reason, he had an outstanding warrant for his
arrest.5
Finally, his conduct for the short time that he had been on
the force also suggested a problem. Specifically, the jury
reasonably could have concluded that he had an excessive number of
“takedown” arrests, similar to the one in which Jill Brown was
injured.
We also note several relevant background facts with respect to
operation of the sheriff’s department. Here, the evidence, viewed
in the light most favorable to the jury’s verdict, showed the
County to have a policy of providing no training itself for its
regular officers and reserve deputies. The record indicates that
the County’s practice was to hire individuals for full-time
positions who had already received training from Oklahoma’s
Commission on Law Enforcement Education and Training (“CLEET”)
program.6 With respect to reserve deputies of Bryan County, the
5
The evidence here buttresses testimony by the County’s expert
that Sheriff Moore disregarded the statutory requirements for
hiring of a new officer, such as the mandate that a new hire be
subjected to a personality test, undergo fingerprinting so that the
FBI and OSBI can perform background checks, and that a form be
submitted to CLEET on the date of hire so that the twelve-month
training clock starts to run.
6
The CLEET program trains officers and potential officers in
all aspects of law enforcement, including patrol tactics, the use
of force, public safety, and the like. Students in CLEET are
specifically trained in the use of “auto extraction techniques,”
such as the arm bar technique allegedly employed by Burns. Our
opinion should not be construed to reflect a finding that training
through CLEET is somehow inadequate. The parties appear to agree
that CLEET training is mandatory for all Oklahoma police officers,
7
record is not entirely clear whether CLEET is mandatory. The
County also made available television training programs through the
Law Enforcement Training Network (“LETN”)(although Sheriff Moore
testified that there is no requirement that the programming
actually be watched), and there remained the possibility that an
officer could receive ad hoc on-the-job training.
Sheriff Moore acknowledged that the County itself does not
train its officers. Confirming this admission, Sheriff Moore
further testified that there were no funds to train personnel.7
Both the plaintiff’s expert and the defendants’ expert corroborated
this lack of training, and it was stressed to the jury during the
plaintiff’s closing argument. Further substantiating Sheriff
Moore’s testimony about the absence of County-provided training,
Officer Morrison, Burns’s partner during the incident, testified
that, although he completed CLEET training before joining the
County’s force (through working in another county), he had received
no training from the County.
full-time or reserve. See, e.g., Okla. Stat. Ann. tit. 70
§ 3311(D)(2).
7
We are sympathetic to the budget problems of local
governments, especially rural counties. The plaintiff’s expert,
however, outlined a range of no-cost training options. The
County’s expert testified that CLEET provides training material for
local police forces at no cost, will work with local police
agencies to develop a training program without charge, and holds
free regional training sessions across the State of Oklahoma.
According to the evidence, Sheriff Moore elected not to pursue any
of these options.
8
The County’s handling of Burns also reflects its lack of a
training program. At his deposition, Burns testified that he had
received no training through Bryan County. Specifically, he
testified that he received “no formal training.” He did not even
receive any “written documentation from Bryan County as to [his]
duties as a reserve officer.”
Burns did testify, however, that he received several months of
training at CLEET, had gone on “ride-alongs” with his grandfather
(a special deputy) and another officer, and watched police training
videos via the LETN network. The jury, however, reasonably could
have rejected these claims. Particularly noteworthy is the strong
evidence, which the jury could reasonably have believed, showing
that Burns never attended CLEET. First, he could not remember any
dates on which he would have attended this program. The evidence
showed that he did not apply for CLEET training until May 6, 1991,
only six days before the Brown incident although he had been
serving as a reserve deputy for four or five weeks. Given that
CLEET classes are held only three days per week, he could not have
attended more than three classes. Other evidence shows, however,
that he attended no classes before the Brown incident. Burns’s
Employment Status Sheet, which must be filed with CLEET within ten
days of hire, is dated June 12, 1991, thirty days after the Brown
incident, or in excess of two months after his hire. Another form
that had to be completed before Burns could be accepted into the
CLEET program was dated May 30, 1991, eighteen days after the Brown
9
incident. With respect to the “ride-alongs” and LETN, the jury
could have discredited, or at least minimized, Burns’s claims in
the light of his often contradicted testimony. Although there is
some evidence that Special Deputy Joe Calclazier, his grandfather,
provided some ad hoc training to Burns, the record suggests that
this training was minimal at best and included no training on
arrest situations.8
Closely connected to its practice of providing no training,
the evidence reasonably supported a conclusion that the County also
failed to provide formal, and very little effective, supervision
for its reserve deputies who were “on the street.” Moore
acknowledged that he gave no explicit instructions to any deputy
about his responsibilities to supervise a reserve deputy. The
officer accompanying Burns during the incident testified that he
received none. The County’s own expert testified that such
supervision of an “inexperienced, untrained” officer is required.
The County’s expert also testified that a reasonable police chief
would have provided these guidelines to his regular deputies and to
reserve deputies.
8
Special Deputy Calclazier testified that he “tried to impart
what knowledge [he] had in law enforcement including “ideas” on
“[p]ositions, where you stopped automobiles, custody and control.
In other words, to watch people, if when you have them stopped to
be sure one of them couldn’t hurt you. There’s – there’s ways that
you watch, keep an eye on things.” That is the entirety of his
statement.
10
III
We review de novo the district court’s ruling on a motion for
judgment as a matter of law. See Travis v. Bd. of Regents of Univ.
of Texas, 122 F.3d 259, 263 (5th Cir. 1997). A motion for judgment
as a matter of law will be granted only if
the facts and inferences point so strongly and
overwhelmingly in favor of one party that the Court
believes that reasonable men could not arrive at a
contrary verdict. . . . On the other hand, if there is
substantial evidence opposed to the motions, that is,
evidence of such quality and weight that reasonable and
fair-minded men in the exercise of impartial judgment
might reach different conclusions, the motions should be
denied . . . .
Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc),
overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107
F.3d 331 (5th Cir. 1997) (en banc). “A motion for judgment as a
matter of law . . . in an action tried by jury is a challenge to
the legal sufficiency of the evidence supporting the jury's
verdict.” Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997).
We consider all of the evidence, drawing all reasonable inferences
and resolving all credibility determinations in the light most
favorable to the non-moving party. See Rhodes v. Guiberson Oil
Tools, 75 F.3d 989, 993 (5th Cir. 1996). Although we review denial
of a motion for judgment as a matter of law, we note that our
standard of review with respect to a jury verdict is especially
deferential. See, e.g., Snyder v. Trepagnier, 142 F.2d 791, 795
(5th Cir. 1998)(“We may overturn a jury verdict only if it is not
supported by substantial evidence, meaning ‘evidence of such
11
quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions.’
We accord all reasonable inferences to the nonmovant, and we
reverse only if no reasonable jury would have arrived at the
verdict.”).
IV
It is clear that a municipality’s policy of failing to train
its police officers can give rise to § 1983 liability. “[T]he
failure to provide proper training may fairly be said to represent
a policy for which the city is responsible, and for which the city
may be held liable if it actually causes injury.” City of Canton
v. Harris, 489 U.S. 378, 390 (1989) The difficult legal question,
however, is whether here the County may be liable for the decision
of Sheriff Moore, a policymaker, not to train Burns.
Here, the parties have stipulated to constitutional injury and
the existence of a policymaker. Therefore, to establish whether
the district court correctly judged § 1983 liability appropriately
here, we look for the remaining elements to establish the County’s
liability in this case: (1) a decision by a decisionmaker that
amounts to a policy under Monell and its progeny; (2) a decision so
deliberately indifferent to the rights of the citizens that the
County fairly can be said to be culpable for the injury; and (3)
sufficient causation between the specific policy decision and the
resulting constitutional injury.
12
An official policy, for purposes of § 1983 liability, is “[a]
policy statement, ordinance, regulation or decision that is
officially adopted and promulgated by the municipality’s lawmaking
officers or by an official to whom the lawmakers have delegated
policy-making authority.” Bennett v. City of Slidell, 735 F.2d
861, 862 (5th Cir. 1984) (en banc). Alternatively, official policy
is “[a] persistent, widespread practice of city officials or
employees, which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute
a custom that fairly represents municipal policy” Id. Finally,
“a final decisionmaker’s adoption of a course of action ‘tailored
to a particular situation and not intended to control decisions in
later situations’ may, in some circumstances, give rise to
municipal liability under § 1983.”). Bryan County, 520 U.S. at 406
(quoting Pembaur v. Cincinnati, 465 U.S. at 481).9 The culpability
element, which may overlap with proof of a policy, requires
evidence that “the municipal action was taken with ‘deliberate
indifference’ as to its known or obvious consequences. A showing
of simple or even heightened negligence will not suffice.” Brown,
520 U.S. at 407 (citation omitted). “‘Deliberate indifference’ is
a stringent standard, requiring proof that a municipal actor
9
That the legal meaning of the term “policy” encompasses a
range of municipal behavior can be found in Monell. “[I]t is when
execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government
as an entity is responsible.” 436 U.S. at 694 (emphasis added).
13
disregarded a known or obvious consequence of his action.” Id. at
410. The causation element demands that the plaintiff show that
the objectionable municipal policy was the “moving force” behind
the plaintiff’s injury. Id. at 408. See also City of Canton, 489
U.S. at 388 (1989) (same).
A
1
Based on the way the parties present and argue this case on
appeal, we focus on whether the failure to provide Burns training
as an individual, and not whether the County had a policy of not
training its deputies generally.10 We ask whether there was a
decision by a policymaker that can satisfy the first element of
ultimately imposing Monell liability. In other words, if Monell
liability is to be imposed, it must be done on the grounds of the
single decision by Sheriff Moore to require no training of Burns
before placing him on the street to make arrests.
Given our standard of review, we think that the jury could
have found that the failure to train Burns was a decision that
amounted to a County “policy.” First, Sheriff Moore was a policy
maker who either could require training for Burns or not.
Furthermore, Moore’s awareness of Burns’s youth, inexperience,
10
Although the County had no formal policy of training for its
deputies or reserve officers, the record indicates that Bryan
County hired trained and experienced deputies. With respect to
reserve officers of Bryan County, the record addresses no failure-
to-train situations other than Burns’s.
14
personal background, and ongoing arrest activities while with the
department, along with the highly predictable risk of injury from
the improper use of force by an untrained officer, provided
sufficient notice to Moore of the need to train Burns so as to make
his failure to require training a conscious decision.
Our conclusion in this respect stems from the following
evidence. First, the jury reasonably could have attached some
significance to the fact that Burns was kin to Sheriff Moore. This
relationship, along with the fact that the sheriff’s department had
relatively few officers, makes it highly unlikely that Burns was
“lost in the crowd,” and his training simply neglected. Second,
the jury could have reasonably concluded that Moore knew of Burns’s
immature background. This is a point on which all courts,
including the Supreme Court, have overwhelmingly agreed. See Bryan
County, 520 U.S. at 414 (majority opinion) and 427-28 and n.6
(Souter, J., dissenting). The jury could conclude that this
background alerted Sheriff Moore that there was an especially
pressing need to train Burns, especially with respect to when and
how to use force. Third, Sheriff Moore did not comply with the
formal steps necessary to enroll Burns in CLEET training until
after the incident, despite statutory requirements mandating him to
do so. Thus, the jury could infer that Sheriff Moore knew that
Burns was not attending CLEET, and conclude that Sheriff Moore was
aware that Burns was all-the-more in need for some training, yet
15
decided not to require training for him. Fourth, despite
availability of non-CLEET training options (e.g., the television
training network), Sheriff Moore knew that no requirements or
enforcement mechanisms existed to ensure that Burns availed himself
of these alternatives. Fifth, Sheriff Moore had authorized Burns
to engage in a wide latitude of conduct, with restrictions applied
only to his driving and to his ability to carry a gun, knowing he
had no training for the duties he might encounter. Sixth, Moore
knew Burns had already arrested some individuals, i.e., he was
engaging in conduct with the potential for harm and that required
training. Burns testified he was authorized by Moore to make
arrests. He had participated in twelve arrests prior to the Brown
incident. Seventh, Moore knew that there were no formal
departmental policies regarding supervision of junior officers to
assist Burns or to limit his conduct. Moore admitted that he did
not instruct deputies about their responsibilities to supervise a
reserve deputy. In sum, we think on this evidence the jury
reasonably could have concluded that Sheriff Moore made a conscious
decision not to train Burns, yet still allowed him to make arrests.
2
We then turn to address whether municipal liability for
failure to train can attach from a single decision of a
policymaker. The County insists it cannot.
16
We think it is clear from the Court’s decisions in City of
Canton, 489 U.S. at 380 & 387, and Bryan County, that, under
certain circumstances, § 1983 liability can attach for a single
decision not to train an individual officer even where there has
been no pattern of previous constitutional violations. We
therefore turn to consider those two cases.
(a)
In City of Canton, 489 U.S. 378, a detainee brought a § 1983
suit against the city based on its failure to provide more medical
training for a police station shift commander. The detainee
alleged deprivation of her constitutional rights when the allegedly
undertrained shift commander did not call for necessary medical
care when she showed signs of serious illness. The record
indicated that the city provided some medically-related training
for its officers, including providing first-aid training. 489 U.S.
at 391 n.11. There was no indication that such incidents were a
recurring problem; that is, city liability was asserted on an
apparent single incident of citizen injury. The Court,
nevertheless, did not reject the plaintiff’s failure-to-train claim
as the basis for § 1983, but instead vacated and remanded the case
for further proceedings on the grounds that the jury instructions
fell below the “deliberate indifference” standard of proof required
for liability to attach.
17
In City of Canton, the Supreme Court addressed several issues
that are relevant to our consideration of the appeal before us.
For the first time, the Court made clear that a municipality could
be liable under section 1983 for the implementation of perfectly
lawful and constitutional policies when a city employee applied the
policy in an unconstitutional manner. Thus, the Court concluded
that “there are limited circumstances in which an allegation of a
‘failure to train’ can be the basis for liability under section
1983.” 489 U.S. 387. The basis for liability under such
circumstances, however, is dependent upon the degree of fault
evidenced by the municipality’s action or inaction. In this
respect, the Court concluded that “the inadequacy of police
training may serve as the basis for section 1983 liability only
where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police comes into contact.”
Id. at 388.
City of Canton, we think, spoke rather directly to the facts
in the case before us when it observed that with respect to
specific officers, a need for more or different training can be so
obvious and the inadequacy of training so likely to result in a
violation of constitutional rights that the city can reasonably be
said to have been deliberately indifferent to the need for
training. Id. at 390.
18
Furthermore, the Court noted that the focus of the inquiry in
determining city liability for failure to train must be “on the
adequacy of the training program in relation to the tasks the
particular officers must perform.” Id. at 390. Here, for example,
we must focus on the adequacy of training of Burns in relation to
performing in an arrest situation. And City of Canton admonishes
that we must examine the evidence for deliberate indifference of
the county and not be satisfied with mere negligence in failing to
train.
Finally, we think that City of Canton again spoke to the facts
in this appeal in footnote ten. There it observed that it is a
fact to a moral certainty that police officers are required to
arrest fleeing felons. Thus, when the city arms its officers to
carry out this task, there is thus the obvious need to train
officers in the constitutional limitations on the use of deadly
force. This need for training is so obvious that the failure to
train is deliberate indifference to constitutional rights. This
same observation, we think, may be applied in making arrests with
force.
In sum, for purposes of considering the appeal before us, we
draw the following guidance from City of Canton: The failure to
train may be actionable under section 1983. Liability of the
county depends upon whether it should have been obvious to Sheriff
Moore--or stated differently, whether Sheriff Moore had sufficient
19
notice--that the failure to train Burns in his task of making
arrests was likely to lead to a violation of the Fourth Amendment
rights of those he would encounter. Furthermore, liability
attaches only if there is direct causation between the policy and
the injury. The City of Canton also suggests that a single
incident of an alleged constitutional violation resulting from the
policy may serve as a basis for liability so long as that violation
was an obvious consequence of the policy. Thus, City of Canton is
persuasive that a pattern of misconduct is not required to
establish obviousness or notice to the policymaker of the likely
consequences of his decision. As Justice O’Connor, the author of
Bryan County, observed in her concurring opinion in City of Canton:
Where a section 1983 plaintiff can establish that the
facts available to city policymakers put them on actual
or constructive notice that the particular omission is
substantially certain to result in the violation of
constitutional rights of their citizens, the dictates of
Monell are satisfied.
Id. at 396.
With City of Canton establishing some key principles for our
consideration of this appeal, we now turn to Justice O’Connor’s
further refinement and development of those principles–-
particularly as relates to the liability of the county for a single
decision by a policymaker–-in Brown v. Bryan County, 520 U.S. 397.
(b)
As we have earlier noted, in Bryan County, considering the
same facts in this appeal but in a different light, the Supreme
20
Court reversed the judgment to the extent that an inadequate hiring
policy of the county was the basis for liability. The question
presented to the Supreme Court was whether Sheriff Moore’s decision
to hire Burns constituted a policy that, under Monell, could
trigger liability against the County. The Court acknowledged that
earlier decisions of the Court may have indicated that a single
decision attributable to a municipality could hold it liable. It
distinguished those cases, however, because they involved formal
decisions of municipal legislative bodies. Furthermore, in those
cases, fault of the policymaker and causation between the policy
and the injury were obvious. Bryan County, however, unlike other
cases, presented a different kind of a case where the decision by
the county to hire Burns was legal, and it was Burns, the employee,
who used the illegal excessive force, and not the County itself.
Where the County has not directly inflicted an injury, but the
allegation is that the County has nevertheless caused an employee
to do so (e.g., by failing to screen or train employees), “rigorous
standards of culpability and causation must be applied to assure
that the [county] is not held liable solely for the actions of its
employees.” Id. at 1389 or 405.
Addressing a case in which a plaintiff attempted to attach
liability to a single decision of the county’s policymaker, the
Court made clear that, when “seeking to establish [county]
liability on the theory that a facially, lawful [county] action has
21
led an employee to violate a plaintiff’s rights[,] [the plaintiff]
must demonstrate that the [county] action was taken with
‘deliberate indifference’ as to its known or obvious consequences.”
Id. at 407 (citing City of Canton). In reference to hiring cases,
the Court emphasized that to hold the county liable for a single
decision, there must be a high degree of predictability concerning
the consequences of the challenged decision. In other words, a
plaintiff must demonstrate that the decision in question reflects
“deliberate indifference to the risk that a violation of a
particular constitutional or statutory right will follow the
decision.” Id. at 411. Specifically, in order to find the county
liable for a single decision of the policymaker, there must be
evidence that would support a finding that it was obvious that the
offending officer in question was “highly likely to inflict the
particular injury suffered by the plaintiff.” Id. at 412. Thus,
the Court held that to test the link between Sheriff Moore’s hiring
decision and Jill Brown’s injury, the lower courts should have
asked whether Sheriff Moore should have concluded that Burns’s use
of excessive force in making arrests was a plainly obvious
consequence of the sheriff’s hiring decision. Id. at 411. The
Court went on to hold that the evidence in this case was inadequate
to support such a jury finding. In the absence of such a finding,
Sheriff Moore was not deliberately indifferent to the plaintiff’s
Fourth Amendment rights in hiring Burns. Id. at 414.
22
Relative to the judgment we consider today, however, the Bryan
County Court distinguished between liability imposed on the basis
of a hiring decision and liability imposed on the basis of a
county’s failure to train. “[P]redicting the consequence of a
single hiring decision . . . is far more difficult than predicting
what might flow from the failure to train a single law enforcement
officer as to a specific skill necessary to the discharge of his
duties.” 520 U.S. at 410. Acknowledging that City of Canton
condoned municipal liability on the basis a single event of failing
to train an employee, the Court rejected Jill Brown’s attempt to
analogize her hiring claim to failure-to-train cases because of the
greater predictability of the consequences that flow from the
failure to train an employee. The Court noted that the consequence
of failing to train a single law enforcement officer as to a
specific skill necessary to discharge his duties is far more
predictable than is the consequence of a single hiring decision.
Id. at 410.
Thus, although a hiring claim is clearly barred on the basis
of the evidence before us in this appeal, we cannot accept the
county’s argument that Bryan County is a bar to considering whether
the same evidence constitutes a basis for liability against the
county under the plaintiff’s failure to train claim. Indeed, the
Bryan County Court noted that:
In Canton, we did not foreclose the possibility that
evidence of a single violation of federal rights,
23
accompanied by a showing that a municipality has failed
to train its employees to handle recurring situations
presenting an obvious potential violation for such
violation, could trigger municipal liability.
520 U.S. at 409.
We think the Supreme Court’s decision in Bryan County simply
makes clear that the evidence must withstand a vigorous test
whether a reasonable jury could conclude: first, it should have
been obvious to Sheriff Moore that the highly predictable
consequence of not training Burns (and not providing supervision
over his conduct when making an arrest) was that Burns would apply
force in such a way that the Fourth Amendment rights of the
citizens of Bryan County were at risk; and, second, that this
failure to train or to provide supervision was “the moving force”
that had a specific causal connection to the constitutional injury.
In short, the evidence must establish, under the stringent
standards of the Supreme Court’s pronouncements in Bryan County,
unmistakable culpability and clearly connected causation.11
11
The County relies heavily on our decision in Snyder, a case
that is distinguishable from the facts presented here. The holding
of Snyder rested on grounds that the city’s policymakers did not
have sufficient notice of the stress problem to respond
effectively. “There was no evidence showing that the city was
aware of the supposedly high stress levels in the NOPD or knew that
in the absence of a stress management program was likely to
endanger the constitutional rights of its citizens.” 142 F.2d at
799. Furthermore, the causal link was absent. “The evidence did
not establish even a remote link between the city’s failure to
enact a stress management program and Snyder’s injury.” Id. In
this appeal, both of these elements are met as we have explained.
24
We thus conclude that a single decision by a policy maker may,
under certain circumstances, constitute a policy for which the
County may be liable. We now turn to consider the requirements of
City of Canton and Bryan County as they apply to this case.
B
Next, we consider the culpability element necessary to
establish the County’s liability. We conclude that the County’s
provision of no training (and no supervision) to Burns, on these
facts, constitutes “deliberate indifference” to the health and
safety of the citizens of Bryan County.12
First, we take it as elemental that police officers need at
least some training to perform their job safely and effectively.
Here, the evidence, including the expert testimony, supported this
proposition. The jury was therefore justified to conclude that it
was obvious to Sheriff Moore that officers without any training
12
The jury instruction stated:
Sheriff B. J. Moore would have acted with deliberate
indifference in adopting an otherwise constitutional
training policy if in light of the duties assigned to
Deputy Sheriff Stacy Burns the need for more or different
training was so obvious and the inadequacy so likely to
result in violations of constitutional rights, that
Sheriff B. J. Moore can be reasonably said to have been
deliberately indifferent to the constitutional needs of
the Plaintiff.
By implication, the Court approved this instruction in Bryan
County. 520 U.S. at 411. That this finding was not a de facto
finding of negligence may be inferred from the jury’s additional
finding, Interrogatory No. 9, that the County was also negligent in
the training of Burns.
25
have a high predictability of injuring citizens, routinely and
unnecessarily, through use of improper techniques, improper force,
and improper judgment calls. Our review of the record further
indicates that the jury reasonably could have concluded that it was
obvious new reserve officers, while being trained, require at least
minimal supervision.13
That the County, through its policymaker, is culpable for
purposes of § 1983 for its choice not to train Burns (and not to
provide proper supervision for him), is illustrated by the facts
giving notice to Sheriff Moore of the need to train and supervise
Burns. Again, based on the family connection between Burns and
Moore, and Moore’s recent investigation of Burns’s record, the jury
reasonably could have inferred Sheriff Moore had full notice of the
full extent of Burns’s exuberant and reckless background. The same
is true with respect to his record of on-the-job conduct in “taking
down” a number of arrest subjects. On the stand, Burns admitted
that, out of his twelve arrests, he had forced three or four
individuals “to the ground,” that is, between twenty-five and
thirty-three percent of the total number of arrests. The
plaintiff’s expert testified this record was excessive. At
13
Indeed, Oklahoma law would appear to require this
supervision. See Op. Atty. Gen’l No. 85-46 (1985) (“‘A sheriff or
salaried deputy sheriff shall accompany a reserve force deputy
sheriff in the performance of all duties assigned to such reserve
force deputy sheriff unless such reserve deputy has completed the
required one-hundred-twenty-hour basic police course.’”)(quoting
Okla. Stat. Ann. tit. 19 § 547(B)).
26
minimum, this record should have provided notice to Sheriff Moore
that Burns was making arrests and using force on a regular basis.
The County’s sheriff force consists of only six regular deputies,
and Burns had been on duty only four to five weeks. The jury could
have reasonably believed that Sheriff Moore was aware of what Burns
was doing in the field and knew training was required for Burns to
perform such tasks. These facts bear on the high predictability of
citizen injury by the untrained Burns and reinforce the jury’s
finding of deliberate indifference in this case.
The same observations apply to the facts showing no
supervision of reserve officers. As we have discussed, the jury
reasonably could have found that Burns remained, essentially,
unsupervised. Sheriff Moore testified he did not authorize Burns
to make arrests, and that he limited Burns’s authority by refusing
to allow him to carry a gun or drive while on duty. Moore also
testified that he intended that Burns be supervised by a full-
fledged deputy. Other testimony contradicted Sheriff Moore’s
claims with respect to proper supervision. First, Sheriff Moore
could point to nothing to prove a policy of supervision except his
assertion that such responsibility was “common knowledge.”
Morrison, the deputy accompanying Burns, testified that he had
never been given any instructions from the Bryan County Sheriff’s
Department as to how he should work with a reserve deputy. When
cross-examined in reference to his testimony that he told Burns
about his limited authority to make arrests, Sheriff Moore could
27
say only that, “[h]e knowed it.” Burns stated that Moore’s only
limitations on his activities were not being allowed to carry a gun
or to drive a police car. Indeed, Burns testified that Sheriff
Moore had authorized him to engage in arrests. Burns testified
that he believed he had authorization from Moore to participate in
the acts involved in the Brown pursuit and arrest, including use of
the arm bar technique. Sheriff Moore did not inform the deputy
accompanying Burns that Burns was limited in his authorization. At
minimum, the policy of not supervising inexperienced officers could
reasonably lead the jury to conclude that the failure to train made
the County even more culpable for the constitutional injuries that
followed.
Thus, we think the jury reasonably could have concluded that
it was obvious to Sheriff Moore that his policy decision not to
train Burns would result in a constitutional deprivation. As a law
enforcement officer, Sheriff Moore knew that all law enforcement
officers, unless expressly restricted, will face situations calling
for the application of force. The jury reasonably could have found
that with Burns there was an even greater magnitude of obviousness
of the need for training and predictability of the consequences
without training–-rendering the degree of the County’s culpability
for the actions of Burns very high indeed. In short, given the
evidence that provided notice to Sheriff Moore of the highly
predictable consequences of not training Burns--i.e., his youth,
his personal record of recklessness and questionable judgment, his
28
inexperience, and his exuberance as a reserve deputy in the short
time he had been on the force, and knowledge that forcible arrests
were inevitable for a law enforcement officer--Sheriff Moore’s
considered policy decision not to require training for Burns can be
said to constitute “deliberate indifference” to the Fourth
Amendment rights of those citizens Burns would encounter.
C
Having concluded that the evidence supports a finding that
Sheriff Moore consciously failed to train Burns, and having
concluded that such a policy decision was the result of deliberate
indifference to the rights secured under the Fourth Amendment, we
now turn to consider whether there is sufficient causation between
the policy decision and the injuries Jill Brown suffered to hold
the County liable for those injuries.
Our review of the record convinces us that the jury had before
it substantial testimony that much of the officers’ conduct, and
Burns’s conduct in particular, during the incident was contrary to
professional standards. According to the expert testimony, Burns
violated basic standards of police conduct, standards that would
have been taught Burns in any basic police training. The jury
could have drawn inferences that the failure to have trained Burns
to follow professional police standards was the moving force
causing Brown’s injuries. Specifically, on the evidence before it,
the jury could have concluded that the County, abetted by its
policy of failing to supervise untrained deputies, allowed Burns to
29
participate in the pursuit and arrest of Brown and that his lack of
training in safety precautions and in arrest situations and in
actually making the arrest, was the “moving force” that caused the
injuries inflicted upon her.
As a preliminary matter, the jury heard expert testimony that
the pursuit across state lines and the method of the stop were
extraordinary and contrary to professional standards when the
officers had no reason to suspect a felony violation. Indeed, the
defendants admitted that they did not suspect any felonious
behavior. Next, the testimony showed that the positioning of the
patrol car vis-á-vis the Browns’ pickup truck after the stop was
highly unusual. Instead of positioning themselves in front of or
behind the Browns’ truck, Officer Morrison pulled alongside of it,
a position labeled by the County’s own expert as improper because
it placed the officers in peril.
There was further expert testimony that Burns’s subsequent
actions demonstrated a lack of knowledge of basic police tactics.
First, without pause and without ascertaining the Browns’ intent,
Burns immediately exited the patrol car and approached the Browns’
vehicle. Instead of moving behind the truck, he crossed in front
of the truck. In doing so, not only did he cross through Officer
Morrison’s line of fire, but during his approach to the passenger
side of the Browns’ truck he exposed himself to any risk the Browns
may have posed. Third, testimony suggested that, despite the lack
of light, Burns may not have used his flashlight to illuminate Ms.
30
Brown. Thus, he could not see with any clarity what she was doing
in the truck cab.14 Officer Morrison, however, testified that the
Browns both raised their hands when so instructed. Fourth, Ms.
Brown testified that Burns exposed himself to further danger by
reaching across her to unbuckle her seat belt. Fifth, the risk
Burns posed to Brown was aggravated by the officers’ perception of
a high-speed chase, when the danger of harm to officer and citizen
as a result of lack of training is especially grave.15 Indeed, the
experts implied that the combination of a potentially dangerous
situation and Burns’s lack of a firearm may have led to his
overreaction if Burns felt at risk, but did not have the proper
tools to protect himself. The jury could reasonably have inferred
that all of these enumerated professional failures on Burns’s part,
errors that were inconsistent with police training, created a
situation that provoked a degree of fear for his safety, which
prompted him to overreact. The jury reasonably could have inferred
14
The two experts concurred that a subject may be slow to exit
a vehicle for various reasons, e.g., he or she just woke up, does
not speak English, suffers a mental deficiency, or is scared. Even
if we viewed the evidence in a light most favorable to Burns, i.e.,
Brown was slow to exit the vehicle, the jury could have believed
that Burns overreacted to the situation. The training deficiency
may have had a direct causal relationship to Burns’s actions that
evening, according to Brown’s expert.
15
The plaintiff’s expert testified that “the literature and
personal experience indicate that the time at which the high-speed
pursuit is terminated . . . and the officers exit the vehicles is
the critical point at which there is a high likelihood or
possibility for excessive use of force. . . . That’s a particular
and critical time for supervision and properly trained.” [sic]
31
from the testimony, that with proper training Burns would have
suggested that legitimate reasons existed to explain why an
individual may be slow to exit a vehicle and thus Burns would not
spontaneously have felt compelled to use force on someone who was
offering no resistance. Finally, the absence of training is
reflected in the injury that resulted to Brown, an injury that
stemmed from what the testimony suggested is an extraction
technique involving, properly applied, a minimum use of force.
The jury could have reasonably concluded that, with training, Burns
would have used the “arm bar” technique in a manner so as not to
inflict injury.
The jury could have also concluded that the County’s policy of
not providing proper supervision, a component of the County’s
policy of no training (beyond the possible availability of CLEET),
contributed to the causal force behind the constitutional
deprivation suffered by Jill Brown. The evidence supports a
conclusion that Burns was unsupervised and unarmed throughout the
incident. His decision to join Morrison was his personal decision,
made without supervisory approval. Officer Morrison himself stated
that he was not in charge of Burns that evening. Morrison admits
he gave Burns no explicit instructions before or during the
episode. Burns testified that he received none. Given Burns’s
lack of training and lack of protection in the form of a sidearm,
Ms. Brown’s expert testified that Burns should never have been
permitted to leave the vehicle. Morrison allowed Burns to exit the
32
vehicle, even though Morrison testified that he himself was in
“great fear,” and drew his weapon. Morrison knew that Burns did
not have a gun. If there was a training program, according to the
expert testimony that the jury could have believed, Morrison likely
would have ordered Burns to remain in the patrol car. Finally,
according to Brown’s expert, the discovery record indicates a total
absence of any communication or coordination between Morrison and
Burns during the entire incident. The County’s expert found
fundamental fault in the supervisory relationship during the
incident, a fault that contributes to the consequences of the lack
of training.
In sum, the jury reasonably could have concluded that the
County’s decision not to train Burns, compounded by its policy of
not requiring proper supervision, was the “moving force” behind the
unconstitutional use of excessive force, which caused Brown’s
injury.
D
We sum up. Given our standard of review, we conclude that the
evidence in the record allowed the jury reasonably to find that
Sheriff Moore made a conscious decision not to train Burns, that
because the need to train Burns was obvious, the failure to train
him constituted “deliberate indifference” to the constitutional
rights of the citizens of Bryan County, and that this decision was
the “moving force” behind Brown’s injuries. We therefore conclude
that the decision not to train Burns was a policy choice on which
33
§ 1983 liability can lie. Thus, the district court properly denied
the County’s motion for judgment as a matter of law.16
VI
On cross-appeal, Jill Brown challenges the district court’s
decision not to enter judgment in accordance with the jury’s
verdict on lost income and lost earning capacity, as well as for
abstract constitutional injuries she suffered. The jury awarded
Brown $36,000 for lost income and $180,000 for lost earning
capacity, and $100,000 in damages for her constitutional injuries.
In this respect, the County never raised any objection to her
evidence, did not object to the jury’s charge, and did not raise
any objection to those damages in any postjudgment motions.
Despite this lack of objection by the County, the district court,
sua sponte, as it had done in its first entry of judgment, again
entered judgment upon our remand that struck Brown’s economic
damages and reduced her constitutional damages to a nominal $1.00.
Brown asks us to review these alleged errors of the district court
and to restore these damage awards.
Because Brown failed to object to these reductions made by the
district court, we consider the district court’s rulings under a
plain error standard. We have defined “plain error” to mean
“unobjected-to (forfeited) errors that are plain (‘clear’ or
16
Having found that § 1983 liability was properly imposed in
this case, we need not reach Brown’s state law claims, which are
duplicative of the federal claims we have decided.
34
‘obvious’) and affect substantial rights. . . . [W]e ‘should
correct a plain forfeited error affecting substantial rights if the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Douglass v. United Servs.
Automobile Assn., 79 F.3d 1415 (5th Cir. 1996) (quoting United
States v. Olano, 507 U.S. 725, 732-37 (1993)); United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1993) (en banc). See also
Johnson v. United States, 520 U.S. 461, 466-67 (1997):
Under [the plain error] test, before an appellate court
can correct an error not raised at trial, there must be
(1) “error,” (2) that is “plain,” and (3) that “affect[s]
substantial rights.” If all three conditions are met, an
appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error
“seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.”
(Alterations in original.) The Supreme Court has explained these
terms to the extent that (1) “clear” means “the error is clear
under current law,” Olano, 507 U.S. at 734, and that (2) “affects
substantial rights” means that “the error must have been
prejudicial: It must have affected the outcome of the district
court proceedings.” Id.
A
The district court’s ruling on economic damages for lost
income and earning capacity must be reversed.17 Although Brown
17
As we have indicated, on this second entry of judgment, after
our remand, the district court struck, as it had done before, the
verdict for damages for lost wages and future income. In our
consideration of this question in the first appeal, we cited McCann
v. Texas City Refining, Inc., 984 F.2d 667, 672 (5th Cir. 1993),
35
failed to preserve this error by a proper objection, we think the
district court’s ruling constitutes plain error.18
In Morante v. Am. Gen’l Fin. Center, 157 F.3d 1006 (5th Cir.
1998), we said:
It is well-settled in this circuit that a motion for
judgment as a matter of law filed post verdict cannot
assert a ground that was not included in the motion for
judgment as a matter of law made at the close of the
evidence. See Allied Bank-West, N.A. v. Stein, 996 F.2d
111, 115 (5th Cir. 1993) (explaining that under Rule 50,
a motion for directed verdict is a prerequisite and
‘virtually jurisdictional’ so that a motion for JNOV
cannot assert a ground that was not included in the
motion for directed verdict). See also Perricone v.
Kansas City S. Ry. Co., 704 F.2d 1376, 1380 (5th Cir.
1983). In Sulmeyer v. Coca Cola Co., 515 F.2d 846 n.17
(5th Cir. 1975), this court explained that “[i]t would be
a constitutionally impermissible re-examination of the
jury’s verdict for the district court to enter judgment
and recognized that the district court’s sua sponte reduction of
the verdict was “constitutionally impermissible,” 67 F.3d at 1182,
in that the County never made the proper objection in any
preverdict or postverdict motion (that is, an objection on the
specific ground that the evidence was insufficient to support this
portion of Brown’s damage award). We considered, however, the
district court’s reduction under the plain error standard because
of Brown’s failure to object to the district court’s post-verdict
action. Thus, we reviewed the evidence offered by Brown and
concluded that the district court was correct that Brown’s evidence
of damages was “lacking.” Without citation to authority, we
stated, “the issue is not whether any evidence exists to support
the jury verdict. Instead, the issue is whether the district
court’s action constituted plain error.” Id. For the reasons
stated here, our previous opinion (now vacated by the Supreme
Court) holding that the district court did not err, was incorrrect.
18
In its brief, the County makes no substantive argument for
the district court’s striking the damage award for lost income and
lost earning capacity. It insists only that the prior panel
opinion is “the law of the case.” As we have earlier noted, the
law of the case does not apply in this case where the Supreme Court
has vacated the judgment.
36
n.o.v. on a ground not raised in the motion for directed
verdict.”
(Alteration in original.) See also WRIGHT & MILLER, FEDERAL PRACTICE AND
PROCEDURE, § 2537, p. 349 & § 2540, pp. 368-69 (West 1995).
Therefore, there is no doubt that district court’s
“constitutionally impermissible” action, exercised once again on
remand, constitutes an error that was clear, or obvious, under
existing precedent in this circuit. Second, the error
unquestionably affected substantial rights because it affected the
outcome of the proceedings, i.e., it reduced the judgment to Brown
by a substantial amount. Lastly, we must conclude that the error
“seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” We reach this conclusion because the
district court’s sua sponte action constituted an unconstitutional
invasion of those issues that are reserved for the jury’s
consideration in violation of Brown’s Seventh Amendment rights
because Brown introduced some evidence of her injuries justifying
submission of the issue to the jury;19 and, second, the court ruled
19
Our decision here differs with the conclusion we reached on
prior consideration because, there, we applied an improper
evidentiary test to this reduction. This case presents the rare
instance of a district court’s sua sponte action without a
defendant’s sufficiency of the evidence motion. Usually, plain
error is applied when the defendant on appeal argues that, despite
its failure to object below, there is insufficient evidence to
support the judgment. The question the appellate court must ask is
whether the plaintiff presented any evidence to support the
verdict. See Sharp v. City of Houston, 164 F.3d 923, 932 (5th Cir.
1999) (“Under the plain-error review, the inquiry is whether the
plaintiff has presented any evidence in support of his claim.”);
Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir. 1996);
37
based on an unargued, uncontested view of the evidence on which
“the nonmovant has [not] had the opportunity to cure any
insufficiencies.” See Purcell v. Seguin State Bank and Trust Co.,
999 F.2d 950, 956 (5th Cir. 1993) (explaining purposes of Rule 50
motion). Thus, under the authority cited above, we hold that the
district court committed plain error when it reduced the jury’s
verdict for lost wages/earning capacity damages in the absence of
a proper and timely motion from the defendant.
B
We now consider the district court’s reduction of the $100,000
the jury awarded to Brown as damages for deprivation of her
constitutional right not to be subjected to excessive force
($50,000) and for her loss of liberty ($50,000). We have reviewed
the district court’s Judgment, March 31, 1998 Order, and supporting
June 22, 1998 Memorandum Opinion and Order. We find that the
decision to strike the $100,000 damage award for violation of
Brown’s constitutional rights does not constitute plain error. The
only error the district court made in this respect was submitting
this issue to the jury.
McCann, 984 F.2d at 673 (“[T]he question before this court is not
whether there was substantial evidence to support the jury verdict,
but whether there was any evidence to support the jury verdict.”).
See also Childress & Davis, Federal Standards of Review, Vol. I, 3d
ed. (LEXIS 1999), § 3.15, pp. 3-115-3-119. The prior panel,
however, engaged in a weighing of the evidence, upholding that the
district court’s conclusion that the evidence offered by Brown was
“lacking” in sufficiency. That was an incorrect approach.
38
Under clearly established jurisprudence, “the abstract value
of a constitutional right may not form the basis for § 1983
damages.” Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299,
308 (1986). See also id. at 306-06; Hay v. City of Irving, Texas,
893 F.2d 796, 800 (5th Cir. 1990). Therefore, this damage question
should never have been submitted to the jury and no argument can be
made that the district court infringed upon Brown’s Seventh
Amendment rights by taking the matter from the jury post-verdict.
As there was no basis for the award, this verdict represents a
windfall to which Brown is not entitled. Therefore, this reduction
does not affect the substantial rights of Brown. Consequently, the
integrity of the proceedings was not affected by the district
court’s action; indeed, to allow it to stand would be to affect
seriously the integrity of the judicial proceeding. Thus, we
affirm the judgment in this respect.
We therefore will reinstate the reductions in the jury verdict
only with respect to Brown’s lost income/earning capacity damages.
VII
The County also claims that the district court erred by
failing to offset Brown’s recovery by $5,001.75 that the Supreme
Court awarded to the County as costs. Brown does not respond to
this argument in her brief. Those costs may be offset against
Brown’s recovery.
VIII
39
In sum, we hold that on the facts of this case, the district
court properly rejected the County’s motion for judgment as a
matter of law on Brown’s § 1983 failure-to-train claim. We affirm
the district court’s elimination of Brown’s award for those
intangible damages she suffered because of the County’s violation
of her constitutional rights. We reverse, however, the district
court’s decision to cut Brown’s damages for lost income and earning
capacity. Otherwise we affirm the award of all other sums to Brown
as damages and fees.20 We offset Brown’s award by any costs awarded
to the County by the Supreme Court.
IX
For the reasons we have stated in this opinion, the judgment
of the district court is affirmed as modified in accordance with
this opinion and
REMANDED to the district court for entry of
judgment consistent with this opinion
ENDRECORD
20
The jury also awarded Brown damages for past physical pain
($5000), future physical pain ($10,000), past mental pain and
anguish ($1,000), future mental pain and anguish ($1,000), past
physical impairment ($75,000), future physical impairment
($300,000), past disfigurement ($1,000), future disfigurement
($2,000), damage to reputation ($500), past medical expenses
($65,802), and future medical expenses ($90,000). The jury also
awarded Brown $20,000 in punitive damages, to be recovered from
Stacy Burns. Finally, the jury awarded Brown $77,500 in attorneys’
fees. The district court ordered all sums to be subject to post
prejudgment and post-judgment interest.
40
DeMOSS, Circuit Judge, dissenting:
This appeal is the latest in a series of appeals which deal
with the same factual and legal claims between the same parties.
For ease of reference, these are defined as follows:
(1) Brown v. Bryan County, 53 F.3d 1410 (5th Cir. 1995)
(hereinafter “Brown I”)
(2) Brown v. Bryan County, 67 F.3d 1174 (5th Cir. 1995)
(hereinafter “Brown II”)
(3) Board of County Comm’rs of Bryan County v. Brown, 117
S. Ct. 1382 (1997) (hereinafter referred to as the
Supreme Court decision in Brown)
(4) Brown v. Bryan County, No. 98-40877 (5th Cir., argued
October 6, 1999) (hereinafter Brown III or the current
appeal).
My review of the history of this long-term, complicated, and
at times acrimonious litigation has persuaded me that our Court
has made some errors in processing these appeals which deserve
recognition and correction as part of the resolution of the
current pending appeal.
My concerns relate to the confusing and anomalous treatment
of the claims of liability against Bryan County (the "County")
under § 1983 which is reflected in these various opinions. Here
are the specifics.
In Brown I, the original panel of this Court discussed the
liability of Bryan County in Part VI of that opinion. In Part
VI(A), a majority of the panel determined that the jury findings
supported a determination of liability on the part of Bryan
41
County because Sheriff Moore’s decision to hire Burns without
proper investigation amounted to deliberate indifference to the
public welfare. In Part VI(B), the original panel unanimously
determined that no recovery against Bryan County could be based
on the theory of failure to properly train Burns after hiring
because our Circuit’s clear precedents require more than a single
instance of injury or an isolated case of one poorly trained
employee for municipal liability to attach. Judge Emilio Garza
dissented on the basis that liability against Bryan County could
not be sustained because one inadequate background investigation,
even by a municipal policy maker, is not enough to constitute
"the unconstitutional municipal policy" contemplated by Monell.
Following issuance of this opinion on June 2, 1995, another
judge of this Court held the mandate and initiated correspondence
with the original panel because the portion of Brown I holding
the County liable was in conflict with a prior decision of this
Circuit in Stokes v. Bullins, 844 F.2d 269 (5th Cir. 1988).
Also, Bryan County filed a motion for panel rehearing and a
suggestion for en banc reconsideration as to the portion of Brown
I which held the County liable for an inadequate hiring policy.
Mrs. Brown did not file any motion for panel rehearing or en banc
reconsideration.
42
Considerable exchange of memoranda finally resulted in a
decision by the original panel in October 1995 to rewrite its
opinion and substitute a new opinion, Brown II, for Brown I.
Apparently, the purpose of this rewrite was to minimize the "en
banc worthiness" of the new decision by making clear that the
affirmance of the County’s liability was based on the particular
factual determinations by the jury relating to the inadequacies
of the investigation and the inappropriateness of Burns' prior
"criminal" record. In accomplishing the rewrite, however, all of
Part VI(B), which determined that the County was not liable on
any failure-to-train theory, was omitted.
I have not found any indication in the record to suggest
that Part VI(B) was intentionally omitted in the redrafting which
produced Brown II. I have great difficulty in understanding why
Part VI(B) was omitted and have concluded that it must simply
have been an inadvertent omission. Clearly, the text of Part
VI(B) of Brown I was a completely accurate summary of our
Circuit’s law on failure-to-train cases; and so far as I can
tell, no party nor any judge on our Court raised any question as
to the validity or accuracy of that text. If Part VI(B) had been
left in Brown II, Mrs. Brown would have had an occasion to file a
motion for panel rehearing or en banc reconsideration as to that
issue. And failing relief by rehearing or en banc
reconsideration, Mrs. Brown would have had an opportunity to
apply for a writ of certiorari to the Supreme Court as to the
43
correctness of the decision in Part VI(B) regarding the County
not being liable for failure-to-train.
I note that in both Brown I and Brown II there is a short
paragraph following the title "DISCUSSION" which includes the
following sentence in both opinions: "For efficiency’s sake, we
will address only those points that we believe merit review."
Obviously, in Brown I the panel felt the discussion in Part VI(B)
merited review because Part VI(B) dealt with a theory of recovery
which was actually tried before the jury, and as to which Bryan
County preserved error in the district court, and the topic was
fully briefed on appeal. Why the original panel determined that
Part VI(B) no longer merited review in the redrafting which
produced Brown II is truly a puzzle to me.21
After issuance of Brown II, our Court voted not to give en
banc reconsideration to this appeal, and Bryan County applied for
a writ of certiorari to the Supreme Court which was granted. In
its opinion, the Supreme Court noted:
21
It occurs to me that the original panel majority may have
assumed that (i) en banc reconsideration of its affirmance of
County liability on the improper hiring theory was so unlikely and
(ii) a writ of certiorari from the Supreme Court on this same issue
was likewise so unlikely that discussing an alternative theory of
liability (i.e. failure-to-train) was simply not worth the paper it
would be written on. If so, this case is a clear demonstration of
the risks of assuming what a higher court will do. Surprise,
surprise, the Supreme Court not only granted certiorari but
reversed the district court and our Court by holding that the jury
instructions on improper hiring were not adequate and that the
evidence was not sufficient to support the necessary findings --
the very aspects which the panel majority thought would insulate
this case from further review.
44
The [Fifth Circuit] court held, among other
things, that Bryan County was properly found
liable under § 1983 based on Sheriff Moore’s
decision to hire Burns. The court addressed only
those points that it thought merited review; it
did not address the jury’s determination of county
liability based on inadequate training of Burns,
nor do we. We granted certiorari to decide
whether the County was properly held liable for
respondent’s injuries based on Sheriff Moore’s
single decision to hire Burns. We now reverse.
Brown, 117 S. Ct. at 1386-87 (citations omitted) (emphasis
added). The Supreme Court vacated the judgment of the Fifth
Circuit and remanded the case "for further proceedings consistent
with this opinion." Id. at 1394. When this appeal arrived back
in our Court, the original panel promptly remanded it to the
district court, and in so doing, I think the original panel
clearly erred. In my view, upon remand from the Supreme Court,
the original panel should have taken two steps:
a. First of all, the panel should have determined the
portions of Brown II which had not been reversed by the Supreme
Court. Clearly, the portions of Brown II which discuss the
liability of Reserve Deputy Burns individually and the quantum of
damages had not been changed in any way by the Supreme Court
decision, and an order affirming the district court’s
determination of liability against Deputy Burns individually and
the quantum of damages resulting therefrom could have and should
have been issued to effect a final disposition thereof; and
b. The original panel should have determined the question
of whether or not the County could be liable on a theory of
45
failure-to-train Deputy Burns. As indicated earlier, the theory
of failure-to-train had been actually tried to the jury, error in
regard thereto had been preserved by the County, the theory had
been briefed and argued on appeal, and the original panel had in
fact decided that our Circuit law would not permit such a
recovery in Part VI(B) of Brown I. In my view, our Court has a
clear duty to decide all issues raised on appeal; and deciding
not to decide (or inadvertently failing to decide) is just as big
an error as deciding contrary to existing case law precedent in
our Circuit.
Given the settled status of our Fifth Circuit case law on
the failure-to-train theory, I think the original panel clearly
should have issued a supplemental opinion holding that recovery
against Bryan County could not be made on the failure-to-train
theory; and in view of the Supreme Court decision holding that
Bryan County could not be held liable on the improper hiring
theory, the original panel should have instructed the district
court to enter a judgment that Mrs. Burns take nothing from Bryan
County under § 1983. Obviously, that supplemental holding could
and probably would have been the subject of an application for
writ of certiorari by Mrs. Brown to the Supreme Court. If
certiorari had then been granted, the Supreme Court would have
then had the occasion to expressly state what distinctions, if
any, there may be between the improper hiring theory and the
failure-to-train theory insofar as County liability is concerned.
46
Instead of taking either of the steps suggested in the
preceding subparagraphs, the original panel simply entered an
order remanding this appeal to the district court "for
consideration in conformity with the opinion of the Supreme
Court." Brown v. Bryan County, 117 F.3d 239, 240 (5th Cir.
1997). When the case got back to the district court, each side
promptly filed motions for judgment as a matter of law. No
further evidence or testimony was presented by either party. The
district court, therefore, had no evidence before it which it did
not have at the time of the original trial four years earlier.
The only new thing which the district court had after remand
which it didn’t have at the time of the original trial was the
Supreme Court decision in Brown itself and the rather
disingenuous arguments made by counsel for Mrs. Brown that this
Supreme Court decision cast a whole new light on the question of
municipal liability in failure-to-train cases. This argument was
made in the face of the express statement by the Supreme Court
that it was NOT addressing a failure-to-train claim in its
opinion. When the Supreme Court says it is not addressing a
claim in its opinion, I think we should take them at face value
and not allow extrapolations of dicta in that opinion to have any
effect on the status of our Circuit’s settled law -- i.e., in
this case that failure-to-train claims require a pattern or
history of other incidents to support deliberate indifference on
the part of the municipality.
47
Not surprisingly, the district court again found that the
evidence was sufficient to support the jury’s finding of
liability on the failure-to-train theory. I am disturbed by the
facility with which the district court simply ignored what was
then the most recent decision of our Circuit reaffirming and
reapplying the rule that a failure-to-train claim had to be based
on more than one instance. See, Snyder v. Trepagnier, 142 F.3d
791 (5th Cir. 1998), cert. granted, 119 S. Ct. 863, cert.
dismissed, 119 S. Ct. 1493 (1999). As a result, the more or less
automatic and unstructured remand by the original panel to the
district court proved to be not only a terrible waste of judicial
resources and duplication of effort, but also provided Mrs. Brown
with a dramatic "second bite at the apple" on her liability
claims by permitting a reassessment of the failure-to-train
theory by the same district judge whose holding on that same
issue was determined to be inconsistent with Fifth Circuit
precedent by Part VI(B) of Brown I.
Bottom line, it seems to me that the best way to extricate
this Court from this convoluted mess is simply to "fess up" that
the original panel inadvertently omitted Part VI(B) in the
redrafting between Brown I and Brown II and that upon remand from
the Supreme Court, the original panel inappropriately remanded to
the district court without first deciding the issue of liability
on the failure-to-train theory which was appropriately before it.
The solution then is for this present panel to do now what the
48
original panel should have done upon remand from the Supreme
Court, i.e., issue a supplemental decision which (i) reaffirms
the decision of the district court assessing liability against
Deputy Burns individually and fixing damages as determined by the
district court; (ii) reverses the decision of the district court
as to liability on the part of Bryan County on the theory of
failure-to-train; (iii) recognizes that the Supreme Court has
determined that liability upon Bryan County for improper hiring
is not supportable factually or legally; and (iv) directs the
district court to enter judgment that Mrs. Brown take nothing
from Bryan County under her claims for deprivation of
constitutional rights under § 1983.
Obviously, the foregoing analysis has fallen on the deaf
ears of the current panel majority. In their haste to find a
"deep pocket" from which Mrs. Burns may recover the compensation
determined by the district court, the current panel majority
articulates a variety of new theories with which I must,
respectfully, disagree. First and foremost, the current panel
majority overstates the impact of the Supreme Court decision in
Brown on the decision of this Court in Brown II. Second, the
current panel majority ignores the clear line of Fifth Circuit
precedent which establishes the criteria necessary to establish
municipal liability for failure-to-train. Finally, the current
panel majority misapplies dicta in the Supreme Court decision on
49
the issue of hiring as being controlling on the issue of failure-
to-train.
Does the Supreme Court Decision in Brown
Vacate the Entirety of the Fifth Circuit
Decision in Brown II?
After our circuit issued its opinion in Brown II, the only
party to apply for writ of certiorari to the Supreme Court was
Bryan County which asked for a review of the holding in Brown II
that it was liable under § 1983 for inadequate hiring decisions.
Deputy Burns did not ask for a writ of certiorari on the portion
of Brown II which affirmed his liability under the jury verdict
for wrongful arrest and use of excessive force. Mrs. Burns did
not apply for a writ of certiorari on the portion of Brown II
which affirmed the district court's determination of the quantum
of damages. The Supreme Court granted certiorari as to the writ
requested by Bryan County and determined that the district court
and our court had erred in finding that Bryan County was liable
under Section 1983 for "Sheriff Moore's single decision to hire
Brown." Accordingly, the Supreme Court decision in Brown
concludes with the following statement:
We therefore vacate the judgment of the Court of
Appeals and remand this case for further
proceedings consistent with this opinion.
117 S. Ct. at 1394.
The current panel majority in this appeal concludes, as
indicated by footnotes 1 and 17 of the majority opinion, that
50
this ending direction from the Supreme Court is a complete
vacatur of the entirety of this Court's decision in Brown II and
that, consequently, Brown II no longer constitutes "the law of
the case" in any respect. In support of this conclusion, this
current majority relies upon quotations from two Supreme Court
cases in footnote 1. Standing alone, these quotations seem to
support the majority's position, but when read in the context of
the cases from which they are taken, it is obvious that these two
quotations were part of larger directives being issued by the
Supreme Court in those cases, which required the remanding of
those cases to the lower courts for consideration of events that
had occurred while those particular cases were on appeal. In
effect, the current panel majority attempts to draw a general
rule out of specific directions issued in cases which are totally
different from Brown from a procedural standpoint.
It seems axiomatic to me that since neither Deputy Burns nor
Mrs. Brown attempted to appeal from the decisions in Brown II,
relating to Deputy Burn's liability and the quantum of damages,
those parts of Brown II would clearly become final and constitute
law of the case, if not res judicata, as to those matters.
Consequently, our original panel erred when it decided to remand
this case to the district court without specifying that such
matters were not to be reopened. In point of fact, the district
court seems to have assumed that these matters were law of the
51
case, for in issuing its new opinion on remand, the district
court spoke only as to the liability of Bryan County, and it
ended up determining the same quantum of damages that it had
determined at the time of the original trial. Consequently, in
my view, Mrs. Brown had no basis whatsoever for seeking to reopen
the damage determination with the district court, and the current
majority errs in deciding to permit reconsideration of that
damage determination by the district court and in awarding Mrs.
Brown a recovery in a quantum greater than that which she
declined to appeal from in Brown II.
In issuing its directive at the end of the majority opinion
in Brown, the Supreme Court said absolutely nothing about
remanding the case to the district court for "reconsideration by
the district court" of any of the issues on appeal in Brown II.
The Supreme Court decision dealt solely with the single issue as
to which certiorari had been granted, and nothing in the Supreme
Court decision in Brown can be deemed a mandate to reopen either
the quantum of damage issue or the question of the liability of
Deputy Burns.
What Effect Does the Supreme Court Decision in Brown have on
the Law Determining the County's Liability under Section
1983 for Failure-to-train?
As indicated earlier in this dissent, the Supreme Court
expressly indicated that it was not addressing the theory of
County liability based on inadequate training of Deputy Burns
52
because that theory had not been addressed by our Court in Brown
II. Despite this express disclaimer, Mrs. Brown and the majority
both urge a reading of the Supreme Court decision in Brown that
would clearly authorize a holding of County liability under §
1983 based upon the jury findings and instructions given on the
failure-to-train theory in this case. When the Supreme Court
expressly says it is not addressing an issue in a case, I think
we should be very cautious about drawing inferences and
implications on an issue from the text of its opinion. But that
is precisely what the majority does. In footnote 12, the
majority states that "by implication," the Supreme Court approved
the jury instructions given to the jury in this case on
inadequate training and cites a particular page in the Supreme
Court opinion as authority for this statement. There is
absolutely nothing, however, on that page of the Supreme Court
opinion in Brown which addresses the jury instruction on
"inadequate training." Rather, what is discussed on that page is
the jury instruction on the improper hiring theory, which the
Supreme Court recognized was "analogous to that reserved in City
of Canton," but which the Supreme Court determined on the next
page was inadequate and insufficient to properly present the
issue of inadequate screening before hiring.
Specifically, the Supreme Court said that the district
court's instruction on inadequate screening before hiring was
53
defective because: (1) it did not specify that the applicant
being considered "was highly likely to inflict the particular
injury suffered by the plaintiff"; and (2) because it failed to
require a finding that Burn's background "made his use of
excessive force in making an arrest a plainly obvious consequence
of the hiring decision." Brown 117 S. Ct. at 1390.
It will be apparent to anyone reading the Supreme Court
decision in Brown that the Court drew certain distinctions
between § 1983 liability based upon inadequate screening before
hiring and § 1983 liability based upon failure-to-train. It will
also be apparent to anyone reading the Supreme Court decision in
Brown that the Court concluded that the proof requirements and
the jury instruction requirements on inadequate screening before
hiring claims should be more stringent than those applicable to
failure-to-train claims. Those differing requirements are
necessary to:
(1) Avoid the "danger that a
municipality will be held liable
for an injury not directly caused
by a deliberate action attributable
to the municipality itself"; and
(2) In order to "prevent municipal
liability for a hiring decision
from collapsing into respondeat
superior liability."
Brown, 117 S. Ct. at 1391.
54
But the simple fact that the Supreme Court declined to
accept Mrs. Brown's "proffered analogy" between failure-to-train
and inadequate screening cases says very little, if anything,
about whether the Supreme Court intended to erect a new or
different set of criteria for analyzing a failure-to-train
theory.
In short, the Supreme Court decision in Brown on the
inadequate screening claim, says absolutely nothing about changes
in the criteria for analyzing a failure-to-train claim.
Impact of Supreme Court Decision
In Brown on Fifth Circuit Precedent
Defining Criteria for Failure-to-train
At the time the original panel issued Brown I in this case,
this Circuit had a clear and consistent precedent that in order
to recover against a municipality under § 1983 on a failure-to-
train claim, the plaintiff must establish something more than a
single instance of injury or an isolated case of one poorly
trained employee. See, e.g., Languirand v. Hayden, 717 F.2d 220
(5th Cir. 1983) (holding that in failure-to-train cases, the
plaintiff must establish a pattern of similar incidents in which
citizens were injured or endangered by intentional or negligent
police misconduct, or that serious incompetence or misbehavior
was general or widespread throughout the police force); Rodriguez
v. Avita, 871 F.2d 552 (5th Cir. 1989) (discussing Languirand and
concluding that municipal liability could not be derived from a
55
single incident of improvident discharge of a firearm by an
officer); and Fraire v. City of Arlington, 957 F.2d 1268, 1278
(5th Cir.) (holding that, in failure-to-train cases "isolated
violations are not the persistent, often repeated constant
violations that constitute custom and policy"), cert. denied, 113
S. Ct. 462 (1992). The original panel relied on this precedent
in holding in Part VI(B) of Brown I that Mrs. Brown could not
recover against Bryan County for failure-to-train. Our Circuit’s
decision in Languirand was decided before the Supreme Court
decision in City of Canton, but it was referred to favorably by
the Supreme Court in City of Canton as one of the Circuit cases
that establishes the "deliberate indifference" standard for
municipal conduct. Rodriguez and Fraire were decided after City
of Canton. In writing Part VI(B) of Brown I, the original panel
expressly referenced the Supreme Court decision in City of Canton
and expressly utilized the following quotation from that case:
That a particular officer may be unsatisfactorily
trained will not alone suffice to fasten liability
on the city, for the officer's shortcomings may
have resulted from factors other than a faulty
training program.... Neither will it suffice to
prove that an injury or accident could have been
avoided if an officer had had better or more
training, sufficient to equip him to avoid the
particular injury-causing conduct.
City of Canton, 109 S. Ct. at 1206.
As indicated earlier in this dissent, I recognize that Part
VI(B) of Brown I was inadvertently omitted in the rewrite that
produced Brown II. As indicated earlier in this dissent, I
56
recognize that Part VI(B) of Brown I, in which a majority of this
Court held that the same evidence before the Court in this appeal
failed to establish the County’s liability for failure-to-train,
was inadvertently omitted in the rewrite that produced Brown II.
But our Circuit has traditionally followed a rule of orderliness
that a subsequent panel may not reach a decision inconsistent
with the decision of a prior panel unless there has been an en
banc decision of our Court or a Supreme Court decision to the
contrary. See, e.g., Grabowski v. Jackson County Pub. Defenders
Office, 47 F.3d 1386, 1398-1403 (5th Cir.) (Smith, J., concurring
in part and dissenting in part), vacated for reh’g en banc, id.
at 1403, district court judgment aff’d, 79 F.3d 478 (5th Cir.
1996) (en banc); see also Arnold v. U.S. Dep’t of Interior, No.
99-10753, 2000 WL 679785, at *5 (5th Cir. May 25, 2000); Teague
v. City of Flower Mound, 179 F.3d 377 (5th Cir. 1999); Lowrey v.
Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
Likewise, our Circuit also has a policy that requires a
subsequent panel to give deference under the law of the case
doctrine to a holding of a prior panel in the same case. See,
e.g., Beets v. Johnson, 180 F.3d 190 (5th Cir. 1999) (applying
law of the case doctrine to decline reconsideration of an issue
decided in a previous appeal), cert. denied, 120 S. Ct. 946
(2000); Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1094 (5th
Cir. 1996); United States v. Singleton, 49 F.3d 129, 134 (5th
57
Cir.); Griffin v. Box, 956 F.2d 89, 93 (5th Cir. 1992). The law
of the case doctrine should foreclose reconsideration of the
quantum of the damages in this case and reconsideration of the
issue of municipal liability under § 1983 for failure-to-train in
this case. Law of the case is a prudential doctrine -- a
principle that "issues once decided in a case that recur in later
stages of the same case are not to be redetermined." See Jack H.
Freidenthal, Civil Procedure § 14.1 (2d ed. 1993) (citing Allen
D. Vestle, Law of the Case: Single Suit Preclusion, 1967 Utah L.
Rev. 1. See generally Lincoln Nat’l Life Ins. Co. v. Roost, 306
F.2d 110 (5th Cir. 1962) (en banc). "As most commonly defined,
the [law of the case] doctrine posits that when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case." Arizona v.
California, 103 S. Ct. 1382, 1391 (1983).
Admittedly, both the rule of orderliness and the law of the
case doctrine are prudential in nature and do not actually
subtract from a court’s power to decide. But despite the
prudential nature of these rules, this Court has consistently
adhered to them. Moreover, while the circumstances in this case
which resulted in Part VI(B) of Brown I being dropped out of the
original panel's decision in Brown II are somewhat peculiar and
anomalous, I think the policies behind these rules justify their
application in this case. First of all, the record in this case
58
is identical in all material respects to the record presented to
the panel in Brown I and Brown II, which the prior panel found
insufficient to establish the County’s liability for failure-to-
train. Second, the procedural posture of this case is in all
material respects identical. While the case has been appealed to
the Supreme Court and remanded to the district court, the
district court merely entered judgment as a matter of law on the
basis of the jury findings without the benefit of any new
evidence. Our task, therefore, remains the same as that
presented in both Brown I and Brown II, which is to measure the
adequacy of the trial record under the controlling legal
standards. In this vein, the original panel’s determination that
the record simply does not measure up may not be binding or
mandatory, but I see no basis for saying that the prior work by a
three-member panel of this Court in a prior appeal involving the
same issues, the same parties, the same record, and the same
procedural posture is not entitled to any deference whatsoever.
Indeed, such an approach is inconsistent with the prudential
rules by which we govern ourselves as a collegiate court.
Unfortunately the current panel majority simply ignores both
the existing Fifth Circuit precedent and our prudential rule of
orderliness. In so doing, I think they err grievously. They
obviously do not cite any en banc decision of this Circuit which
changed or overruled the precedent established by Languirand,
59
Rodriguez, and Fraire. Likewise, the current panel majority does
not cite a Supreme Court case which holds that the requirement of
our Circuit precedent of a pattern of prior incidents being
necessary to establish deliberate indifference on the part of a
municipality under § 1983 is no longer the law. Instead, the
current panel majority purports to rely upon various portions of
City of Canton, particularly footnote 10 of that opinion. But
each and every one of those portions of the City of Canton
opinion which the panel majority now relies on to support its
holding were available for reading and interpretation by the
original panel in this case, by the panel in Fraire, and by the
panel in Rodriguez.
In short, three panels of this Court have read the very same
Supreme Court language and reached the conclusion that municipal
liability under § 1983 should not be fixed on the basis of a
single incident which is attributable to failure-to-train. The
current panel majority, however, reached the opposite conclusion.
The panel's reference to footnote 10 is particularly troublesome.
In this case, Deputy Burns was not authorized to carry a weapon,
and he did not, in fact, carry or use a weapon on the occasion of
the arrest involved in this case. There is no testimony in this
case which would show that use of the arm-bar take down technique
constitutes the use of deadly force. Consequently, this case
does not come anywhere near involving the example cited by the
60
Supreme Court in City of Canton as a need for training which is
so obvious as to constitute deliberate indifference on the part
of the municipality without any history of prior circumstances.
What Impact Does the Supreme
Court Decision in Brown Have on
The Supreme Court Decision in City of Canton?
Both the current panel majority and Mrs. Brown's brief take
the position that the Supreme Court decision in Brown should be
read as elaborating upon and extending the holding in City of
Canton that an inadequate training claim could be the basis for
1983 liability in limited circumstances. I suggest, however,
that the Supreme Court in Brown was actually limiting and
restricting the language of City of Canton. Read the following
quotation in which Justice O'Connor, speaking for the majority in
Brown said:
We spoke, however, of a deficient training
"program," necessarily intended to apply over
time to multiple employees. Id. at 390, 109
S. Ct. at 1205. Existence of a "program"
makes proof of fault and causation at least
possible in an inadequate training case. If
a program does not prevent constitutional
violations, municipal decisionmakers may
eventually be put on notice that a new
program is called for. Their continued
adherence to an approach that they know or
should know has failed to prevent tortious
conduct by employees may establish the
conscious disregard for the consequences of
their action--the "deliberate indifference"--
necessary to trigger municipal liability.
Id. at 390, n.10, 109 S. Ct. at 1205 n.10
("It could ... be that the police, in
61
exercising their discretion, so often violate
constitutional rights that the need for
further training must have been plainly
obvious to the city policymakers, who,
nevertheless, are ‘deliberately indifferent’
to the need"); id. at 397, 109 S. Ct. at 1209
(O'CONNOR, J., concurring in part and
dissenting in part) ("[M]unicipal liability
for failure to train may be proper where it
can be shown that policymakers were aware of,
and acquiesced in, a pattern of
constitutional violations...."). In
addition, the existence of a pattern of
tortious conduct by inadequately trained
employees may tend to show that the lack of
proper training, rather than a one-time
negligent administration of the program or
factors peculiar to the officer involved in a
particular incident, is the "moving force"
behind the plaintiff's injury. See id., at
390-391, 109 S. Ct. at 1205-1206.
Brown, 117 S. Ct. at 1390.
Note the repeated emphasis on the word "program" and note
the use of the plural form of the words "violations" and
"employees," both of which necessarily indicate instances of more
than one violation by more than one officer.
Moreover, note the existence of the reference to "existence
of a pattern of tortious conduct." Each of these comments by the
Supreme Court in Brown demonstrate that what it was saying in
City of Canton is that the surest way to establish the required
deliberate indifference on the part of the municipality is to
prove that its training program has failed to prevent more than
one constitutional violation by more than one employee over a
62
period of time, and that such proof would support a finding of
deliberate indifference by the municipality.
Also, in explaining why the analogy urged by Mrs. Brown
between failure-to-train cases and inadequate screening cases was
not persuasive, the Supreme Court in Brown stated the following:
In leaving open in Canton the possibility that a
plaintiff might succeed in carrying a failure-to-
train claim without showing a pattern of
constitutional violations, we simply hypothesized
that, in a narrow range of circumstances, a
violation of federal rights may be a highly
predictable consequence of a failure to equip law
enforcement officers with specific tools to handle
recurring situations.
Brown, 117 S. Ct. at 1391.
Note, first of all, the characterization of the language in
Canton as a hypothesis not a holding. Note next that the Supreme
Court in Brown characterized the applicability of the language in
Canton as applying to "a narrow range of circumstances," but the
Supreme Court in Brown did not add any further examples beyond
those already mentioned in City of Canton as to circumstances
which would fit in this narrow range.
Finally, note that the Supreme Court decision in Brown,
upgraded the probability of a violation of constitutional rights
occurring in an improper hiring case from "so likely to result,"
as stated in City of Canton, to "highly predictable consequence."
These same language distinctions are at the root of the Supreme
Court's analysis as to why the jury instructions in Brown on the
63
inadequate hiring issue which was before it were defective. The
jury instructions and issues on failure-to-train given by the
district court were virtually identical to the jury instructions
on inadequate hiring. As I have stated earlier, I do not think
the Supreme Court in Brown spoke in any way to the jury
instructions and issues on failure-to-train. But since we are
now asked to make an educated guess as to what we think the
Supreme Court would do with the failure-to-train instructions and
jury issues in this case, if, as, and when, those matters get
before the Supreme Court, I would put my money on the Supreme
Court finding them deficient for two reasons: first, because they
inquire about the deficiency of training of an individual, not
the deficiency of a training program; and second, because they
lack the specificity of constitutional violation and set too low
a test of probability just like the issues found deficient by the
Supreme Court on inadequate hiring in its opinion.
Conclusion
For all of the foregoing reasons, I respectfully dissent
from the analysis and conclusion of the majority opinion. I urge
Bryan County to file a motion for panel rehearing and suggestion
for en banc reconsideration with respect to the majority’s
treatment of both the liability and damage issues so that all of
the active members of our Court might have an occasion to address
64
the very serious issues raised by the majority's handling of this
appeal.
g:\opin\98-40877.dis 65