DocketNumber： No. 98-40877
Judges： Demoss, Garza, Jolly
Filed Date： 7/18/2000
Status： Precedential
Modified Date： 10/19/2024
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 sheriffs 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
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 hable 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 We have issued two previous opinions, see Brown v. Bryan County, Oklahoma, 53 F.3d 1410 (5th Cir.1995), withdrawn and superseded by, 67 F.3d 1174 (5th Cir.1995), and the Supreme Court has considered the case. See Bd. of the County Comm’ns of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). When the Supreme Court reversed our decision upholding liability against the County on the basis of its hiring decision,
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.
I
The jury awarded Jill Brown extensive damages on her 42 U.S.C. § 1983 claim against the County for injuries she sus-táined 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.
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 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.
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 ‘gofer’ ” — 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.
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 sheriffs 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.
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.
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
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.
Ill
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 Marne, 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.3d 791, 795
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, 109 S.Ct. 1197, 103 L.Ed.2d 412 (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.
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, 117 S.Ct. 1382 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)).
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
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, 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 sheriffs 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, 117 S.Ct. 1382 (majority opinion) and 520 U.S. at 427-28 and n. 6, 117 S.Ct. 1382 (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 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.
(a)
In City of Canton, 489 U.S. 378, 109 S.Ct. 1197, 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, 109 S.Ct. 1197. 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 plaintiffs 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.
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. at 387, 109 S.Ct. 1197. 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, 109 S.Ct. 1197.
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, 109 S.Ct. 1197.
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, 109 S.Ct. 1197. 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
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, 109 S.Ct. 1197.
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 Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382.
(b)
As we have earlier noted, in Bryan County, considering the same facts in this appeal but in a different light, the Supreme 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 405, 117 S.Ct. at 1389.
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 led an employee to violate a plaintiffs rights[,] [the plaintiff] must demonstrate that the [county] action was taken with ‘deliberate indifference’ as to its known or obvious consequences.” Id. at 407, 117 S.Ct. 1382 (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
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. “[Pjredicting 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, 117 S.Ct. 1382. 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, 117 S.Ct. 1382.
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 plaintiffs 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, 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, 117 S.Ct. 1382.
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.
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.
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 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.
That the County, through its policymaker, is culpable for purposes of § 1988 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 plaintiffs expert testified this record was excessive. At 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
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. Mo'ore 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 Sheriffs 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 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 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 stan
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. Brown. Thus, he could not see with any clarity what she was doing in the truck cab.
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 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 ' § 1983 liability can lie. Thus, the district court properly denied the County’s motion for judgment as a matter of law.
V
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
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 ‘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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.1994) (en banc). See also Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (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 “affeet[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, 113 S.Ct. 1770, 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.
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 Southern Ry. Co., 704 F.2d 1376, 1380 (5th Cir.*467 1983). In Sulmeyer v. Coca Cola Co., 515 F.2d 835, 846 n. 17 (5th Cir.1975), this court explained that “[ijt would be a constitutionally impermissible re-examination of the jury’s verdict for the district court to enter judgment n.o.v. on a ground not raised in the motion for directed verdict. ”
(Alteration in original.) See also Wright & Miller, Federal Practioe 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;
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.
Under clearly established jurisprudence, “the abstract value of a constitutional right may not form the basis for § 1983 damages.” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986). See also id. at 306-06, 106 S.Ct. 2537; 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
We therefore will reinstate the reductions in the jury verdict only with respect to Brown’s lost income/earning capacity damages.
VI
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.
VII
In sum, we hold that on the facts of this ease, 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.
VIII
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
. 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, 102 S.Ct. 2223, 72 L.Ed.2d 668 (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, 95 S.Ct. 2486, 45 L.Ed.2d 396 (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.”).
. The jury álso 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.
. 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.
. The more serious of these offenses all arose from one incident involving a fracas while a college student.
. 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.
. 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 Bums. Our opinion should not be construed .to re-fleet a finding that training through CLEET is somehow inadequate. The parties appear to agree that CLEET training is mandatory for all Oklahoma police officers, full-time or reserve. See, e.g., Okla. Stat. Ann. tit. 70 § 3311(D)(2).
.We are sympathetic to the budget problems of local governments, especially rural counties. The plaintiffs 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.
. Special Deputy Calclazier testified that he "tried to impart what knowledge [he] had in law enforcement including 'ideas’ on '[p]osi-tions, 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.
. 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, 98 S.Ct. 2018 (emphasis added).
. 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 re-sped to reserve officers of Bryan County, the record addresses no failure-to-train situations other than Burns's.
. 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 en
. 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 BJ. 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, 117 S.Ct. 1382. 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.
. 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.' "Xquoting Okla. Stat. Ann. tit. 19 § 547(B)).
. 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.
. The plaintiffs 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]
. 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.
. 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), 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 postver-dict 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.
. 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.
. Our decision here differs with the conclusion we reached on prior consideration because, there, we applied an improper eviden-tiary 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); 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.
. 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 Bums. 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.