Jenkins Ex Rel. Estate of Jenkins v. Bartlett

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2495
DEBRA JENKINS, Mother, Special
Administrator and Personal
Representative of the Estate
of Larry Jerome Jenkins, ESTATE
OF LARRY JEROME JENKINS,
BRIANA L. JENKINS-BENNING,
Decedent’s Minor Child, et al.,
Plaintiffs-Appellants,
v.
JON BARTLETT,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 C 1136—David R. Herndon, Judge.
____________
ARGUED DECEMBER 8, 2006—DECIDED APRIL 23, 2007
____________
Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE,
Circuit Judges.
RIPPLE, Circuit Judge. Debra Jenkins, on behalf of the
estate of her son, Larry Jenkins, filed this action under 42
U.S.C. § 1983 against Jon Bartlett, a police officer in the
Milwaukee Police Department (“MPD”). She alleged that
2 No. 06-2495
Officer Bartlett had violated Mr. Jenkins’ constitutional
rights through the use of excessive force when he shot and
killed Mr. Jenkins as he attempted to flee custody.1 Ms.
Jenkins also brought § 1983 claims against the City of
Milwaukee (“City”) and Arthur Jones, the Chief of the
MPD at the time Mr. Jenkins was shot, under Monell v.
Department of Social Services, 436 U.S. 658, 694 (1978). She
alleged that the City and Chief Jones were deliberately
indifferent to Mr. Jenkins’ constitutional rights in the
training and supervision of Milwaukee police officers
with respect to the use of deadly force on suspects in
vehicles (“Monell claims”). The district court granted
summary judgment in favor of the City and Chief Jones on
Ms. Jenkins’ Monell claims and, following a trial, a jury
found that Officer Bartlett had not violated Mr. Jenkins’
constitutional rights. Ms. Jenkins appeals the district
court’s grant of summary judgment in favor of the City
and Chief Jones on her Monell claims. Ms. Jenkins also
appeals two of the district court’s evidentiary rulings. For
the reasons set forth in this opinion, we affirm the judg-
ment of the district court.
1
Originally, Ms. Jenkins also brought claims on behalf of
herself and Mr. Jenkins’ children for loss of society and compan-
ionship. The district court dismissed the claims brought on
behalf of Mr. Jenkins’ children, determining that Ms. Jenkins
lacked standing to assert their claims. The district court later
granted Officer Bartlett’s motion to dismiss Ms. Jenkins’
personal claim for loss of society and companionship follow-
ing our decision in Russ v. Watts, 414 F.3d 783 (7th Cir. 2005),
which held that surviving parents had no independent con-
stitutional right to recover for loss of society and companionship
of an adult child incidental to state action. Id. at 791. Ms. Jenkins
does not appeal these rulings.
No. 06-2495 3
I
BACKGROUND
A.
On the night of September 19, 2002, Officer Bartlett
was on duty with Officer Kurt Lacina. Officers Bartlett
and Lacina stopped a black Jeep that they suspected of
involvement in drug-related activity. As the officers
approached, Mr. Jenkins exited the vehicle. Officer Bartlett
searched him for weapons and decided to place him in the
squad car while the officer completed his investigation.
Before he could be secured in the car, Mr. Jenkins fled on
foot and Officer Bartlett, also on foot, pursued him. After
a one- to two-minute pursuit, Mr. Jenkins entered an
occupied vehicle.
Believing that Mr. Jenkins was attempting to car-jack the
vehicle, Officer Bartlett drew his service weapon and
approached the vehicle from the front. Mr. Jenkins now
was in the driver’s seat behind the steering wheel. The
vehicle moved toward Officer Bartlett and struck the
officer. Accounts differ as to the speed at which the
vehicle was traveling and whether the vehicle swerved
to strike him. When the vehicle struck Officer Bartlett,
he was thrown onto the vehicle’s hood. Officer Bartlett
then fired nine shots into the vehicle, seven of which
struck Mr. Jenkins. Mr. Jenkins died of his wounds.
After the shooting, pursuant to MPD policy, Officer
Bartlett was taken to MPD detective bureau headquarters,
and an investigation was begun immediately by both the
criminal and Internal Affairs divisions of MPD. As was
department custom, Bradley DeBraska, the police liaison
officer for the City and president of the Milwaukee Police
Association, was contacted following the shooting.
4 No. 06-2495
DeBraska and an attorney appointed by the police officers’
association, Jonathan Cermele, met Officer Bartlett at
MPD headquarters. Throughout the evening, DeBraska
gathered information and advised Cermele as the attor-
ney prepared to represent Officer Bartlett during his
interview with Internal Affairs.
The results of the criminal investigation were sent to the
Milwaukee County District Attorney’s Office. The district
attorney found no basis to file criminal charges against
Officer Bartlett. The investigation by Internal Affairs
concluded that Officer Bartlett had not violated any MPD
policy in the course of the shooting.
B.
Ms. Jenkins then brought this action on behalf of Mr.
Jenkins’ estate. She alleged that Officer Bartlett’s use of
deadly force was excessive and had violated Mr. Jenkins’
Fourth Amendment rights. She also alleged that the City
and Chief Jones had exhibited deliberate indifference to
Mr. Jenkins’ constitutional rights by failing to train prop-
erly and to supervise MPD officers with respect to the
exercise of deadly force on suspects in vehicles. She based
this claim on MPD’s alleged failure to train properly its
officers according to MPD’s own training bulletins for
approaching and exercising deadly force on suspects in
vehicles. She also pointed to past incidents in which
MPD officers had used deadly force on suspects in vehi-
cles.
As the case proceeded, the district court set November 1,
2003 as the deadline for Officer Bartlett, the City and Chief
Jones (collectively, “defendants”) to provide Ms. Jenkins
the disclosures related to expert witnesses required by Rule
No. 06-2495 5
26(a)(2) of the Federal Rules of Civil Procedure.2 On
October 1, 2003, Susan Lappen, the attorney for the de-
fendants, sent Ms. Jenkins’ attorney a letter that identified
the expert witnesses the defendants expected to call, their
anticipated testimony and the bases for the opinions to
which the experts would testify, including the autopsy
protocol the defendants previously had provided to Ms.
Jenkins. This letter identified Dr. Jeffrey Jentzen, the
Milwaukee County Medical Examiner, and Dr. Mary
Mainland, an Assistant Medical Examiner, as potential
experts; these physicians had been involved in the autopsy
of Mr. Jenkins and in a reconstruction of the shooting.
Attached to the letter, Attorney Lappen included each
physician’s curriculum vitae. Neither physician signed
the letter, but both subsequently provided sworn affi-
davits adopting the contents of the letter.
Ms. Jenkins objected to the proposed testimony of the
physicians. She submitted that the defendants’ disclosures
did not satisfy Rule 26(a)(2)(B)’s requirement for an expert
report. The objection did not specify the deficiencies of
the disclosure. The district court denied the motion, not-
ing that Ms. Jenkins had not stated the basis for her
objection and that the physicians subsequently had
adopted Lappen’s letter by sworn affidavit that had
cured any defect in the report.
The defendants then moved for summary judgment. The
district court denied Officer Bartlett’s motion for sum-
mary judgment based on the defense of qualified immu-
nity: It held that genuine issues existed as to the reason-
2
The deadline originally was set for October 1, 2003, but the
district court extended the deadline to November 1, 2003. See
R.42.
6 No. 06-2495
ableness of the use of deadly force. The district court
granted summary judgment in favor of the City and Chief
Jones: It held that Ms. Jenkins had “failed to articulate
any deficiency in the training of MPD officers” or in the
inadequacy of investigations of prior incidents in which
MPD officers had exercised deadly force on suspects in
vehicles. R.99 at 13. After this order, only Officer Bartlett
remained as a defendant.
Before trial, the judge originally assigned to the case,
Judge Stadtmueller, was replaced by Judge Herndon. After
Judge Herndon assumed responsibility for the case, Ms.
Jenkins again moved to exclude the testimony of Dr.
Mainland, again arguing that Lappen’s October 1, 2003
letter did not “comply with the rules for an expert report”
and added that Dr. Mainland’s opinions were not “ratio-
nally based” and had “no relevance other than being
highly suggestive.” R.125 at 5-6. Judge Herndon denied
the motion, noting that Ms. Jenkins had not shown any
cause to disturb Judge Stadtmueller’s earlier decision. At
trial, Ms. Jenkins again attempted to exclude Dr. Main-
land’s testimony. She contended that the basis for Dr.
Mainland’s proposed opinion testimony about the posi-
tion in which Mr. Jenkins was sitting when he was shot
did not satisfy the standard of Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), for reliability of
expert testimony. The district court denied Ms. Jenkins’
motion.
Ms. Jenkins also sought to call DeBraska and Cermele as
witnesses. Officer Bartlett objected, asserting attorney-
client privilege and work product protection. After taking
testimony on the matter, the district court ruled that
DeBraska’s presence during Officer Bartlett’s conversa-
tions with Cermele did not destroy the attorney-client
No. 06-2495 7
privilege because DeBraska was acting as Cermele’s agent
by assisting Cermele in rendering legal services to Officer
Bartlett. Therefore, the district court held, Ms. Jenkins
could not call DeBraska or Cermele to testify.
The jury returned a verdict in favor of Officer Bartlett.
Ms. Jenkins now appeals.
II
DISCUSSION
Ms. Jenkins raises three issues on appeal. First, Ms.
Jenkins submits that the district court erred when it
allowed Drs. Jentzen and Mainland to testify as expert
witnesses because the defendants had failed to provide
an expert report that satisfied Federal Rule of Civil Pro-
cedure 26(a)(2)(B) and because their testimony did not
satisfy the Daubert standard for reliability of expert testi-
mony offered under Federal Rule of Evidence 702. Next,
she contends that the district court erred when it sus-
tained Officer Bartlett’s claim of attorney-client privilege
despite DeBraska’s presence during conversations be-
tween Officer Bartlett and Cermele. Lastly, Ms. Jenkins
challenges the district court’s grant of summary judg-
ment on her Monell claims against the City and Chief Jones.
We shall address each of these issues.
A. Expert Testimony
Ms. Jenkins contends that the district court erred when
it permitted Drs. Jentzen and Mainland to testify as ex-
perts on behalf of Officer Bartlett. She raises two separate
objections to the district court’s ruling that permitted the
physicians to testify as experts. First, she contends that the
8 No. 06-2495
physicians’ testimony should have been barred because
Officer Bartlett failed to provide an expert report that
satisfied Federal Rule of Civil Procedure 26(a)(2)(B).
Second, Ms. Jenkins submits that the physicians’ testimony
should have been excluded under Federal Rule of Evi-
dence 702 because it failed to satisfy the Daubert standard
for reliability of expert testimony.
1. Federal Rule of Civil Procedure 26(a)(2)(B)
Rule 26(a)(2) requires parties to disclose the name of any
person the party may call to testify as an expert under
Federal Rule of Evidence 702. Fed. R. Civ. P. 26(a)(2)(A).
When the potential witness “is retained or specially
employed to provide expert testimony in the case or
whose duties as an employee of the party regularly in-
volve giving expert testimony,” the disclosure must also
include a “written report prepared and signed by the
witness.” Fed. R. Civ. P. 26(a)(2)(B). This report must
include:
a complete statement of all opinions to be expressed
and the basis and reasons therefor; the data or other
information considered by the witness in forming the
opinions; any exhibits to be used as a summary of or
support for the opinions; the qualifications of the
witness, including a list of all publications authored by
the witness within the preceding ten years; the com-
pensation to be paid for the study and testimony; and
a listing of any other cases in which the witness has
testified as an expert at trial or by deposition within
the preceding four years.
Id. The purpose of the report is to “set forth the substance
of the direct examination.” Fed. R. Civ. P. 26 advisory
No. 06-2495 9
committee’s note. The required disclosures must be made
within the time frame directed by the court. Fed. R. Civ. P.
26(a)(2)(C). A party is barred from using at trial evi-
dence that it failed to disclose “without substantial justifi-
cation” as required by Rule 26(a), unless that failure
was harmless. Fed. R. Civ. P. 37(c)(1) & advisory commit-
tee’s note.
To comply with this rule, the defendants submitted a
letter on October 1, 2003 prepared by their attorney. The
letter identified Drs. Jentzen and Mainland as expert
witnesses, provided each witness’ curriculum vitae, and
stated the expected testimony and the basis for that
testimony, including the autopsy protocol which already
had been provided to Ms. Jenkins. Ms. Jenkins received
this letter within the time designated by the court. Al-
though the letter was not prepared or signed by either
physician, both physicians subsequently submitted af-
fidavits adopting the contents of the letter. The district
court held there had been substantial compliance with
Rule 26(a)(2).3 See R.74 at 9-10.
3
Ms. Jenkins did not state any basis for her objection to the
expert report. See R.74 at 9. The district court noted that the
absence of the physicians’ signatures from the letters left the
reports in technical noncompliance with Rule 26(a)(2)(B), but
further noted that Ms. Jenkins provided no authority that
would support excluding the physicians’ testimony in light of
the physicians’ subsequent affidavits adopting the contents of
the letter. Id. at 10. Ms. Jenkins renewed this objection after
Judge Herndon replaced Judge Stadtmueller, again without
stating how the report failed to comply with Rule 26(a)(2)(B).
See R.125 at 5. Judge Herndon denied this motion, noting that
Ms. Jenkins had provided no reason to justify reconsideration
of Judge Stadtmueller’s order. R.135 at 3-4.
10 No. 06-2495
Ms. Jenkins now appeals this ruling. We review a dis-
trict court’s discovery rulings on the exclusion of expert
testimony for an abuse of discretion. Musser v. Gentiva
Health Servs., 356 F.3d 751, 755 (7th Cir. 2004). We shall
not find an abuse of discretion unless “(1) the record
contains no evidence upon which the court could have
rationally based its decision; (2) the decision is based on
an erroneous conclusion of law; (3) the decision is based on
clearly erroneous factual findings; or (4) the decision
clearly appears arbitrary.” Id. (quoting Sherrod v. Lingle,
223 F.3d 605, 610 (7th Cir. 2000)) (internal quotation
marks omitted).
The district court did not abuse its discretion by permit-
ting Drs. Jentzen and Mainland to testify despite any
shortcomings in the expert report submitted by the defen-
dants. With the exception of the physicians’ signatures, the
letter substantially complied with Rule 26(a)(2)(B). The
letter stated the opinions to which the physicians
would testify and the basis for those opinions, invited
Ms. Jenkins’ attention to the autopsy protocol which she
already had received, disclosed prior testimony by Dr.
Jentzen in federal court, and set forth the physicians’
qualifications and publications in their respective cur-
riculum vitae. Further, the plaintiffs cured the main defect
in the expert report, the absence of the physicians’ signa-
tures, by submitting sworn affidavits from the physicians
adopting the contents of the October 1, 2003 letter. Under
these circumstances, the district court did not abuse its
discretion by holding that any shortcoming in the defen-
dants’ disclosure was harmless.
No. 06-2495 11
2. Daubert Standard
Ms. Jenkins also contends that Dr. Mainland’s testimony
should have been excluded under Federal Rule of Evidence
702.4 Under the Daubert gatekeeping requirement, the
district court has a duty to ensure that expert testimony
offered under Federal Rule of Evidence 702 is both rele-
vant and reliable. See Kumho Tires Co. v. Carmichael, 526
U.S. 137, 147 (1999). The goal of Daubert is to assure that
experts employ the same “intellectual rigor” in their
courtroom testimony as would be employed by an expert
in the relevant field. Id. at 152. Whether proposed expert
testimony is sufficiently reliable under Rule 702 is depend-
ent upon the facts and circumstances of the particular case.
See id. at 150.
The fact-specific nature of the Daubert gatekeeping
inquiry vests considerable latitude in the trial court, both
in determining the method by which the reliability of the
proposed expert testimony will be measured and
whether the testimony is, in fact, reliable. Id. at 152. To
ensure that the trial court has fulfilled its gatekeeping
responsibility, while still affording it the necessary latitude
to meet the circumstances of the case, we employ a two-
part inquiry. Ammons v. Aramark Unif. Servs., Inc., 368 F.3d
809, 816 (7th Cir. 2004). First, we review de novo the
district court’s application of the Daubert framework, i.e.,
whether the district court assessed the reliability and
relevance of the proffered testimony. Id. If the district
court properly applied the Daubert framework, we then
review the district court’s ultimate decision to admit or to
exclude the testimony for an abuse of discretion. Id.4
Ms. Jenkins does not appear to challenge Dr. Jentzen’s testi-
mony under Federal Rule of Evidence 702.
12 No. 06-2495
Ms. Jenkins submits that Dr. Mainland’s opinion was
not reliable because it was based on speculation. Prior to
trial, Ms. Jenkins objected to Dr. Mainland’s testimony on
the ground that it was “not rationally based,” “highly
suggestive” and likely to confuse the jury; she offered no
further explanation. R.125 at 6. At trial, Ms. Jenkins con-
tended that Dr. Mainland’s opinion testimony based on
Dr. Mainland’s reconstruction of the shooting was not
reliable because Dr. Mainland had not done a “dimen-
sionally analysis” as part of the reconstruction. R.203 at 3.
Ms. Jenkins noted that, by Dr. Mainland’s own admission,
Dr. Mainland did not know whether Officer Barlett had
fired from the ground or from the hood of the vehicle. See
id. at 4, 6. As a result, Ms. Jenkins submitted, Dr. Main-
land’s opinion testimony was nothing more than “conjec-
ture and speculation.” Id. at 6. In response, Officer Bartlett
pointed to Dr. Mainland’s qualifications, her personal
knowledge gained from conducting the autopsy of Mr.
Jenkins and her investigation of the vehicle in which Mr.
Jenkins was shot. Id. at 5. The district court noted that it
had applied the Daubert analysis when it denied Ms.
Jenkins’ pre-trial motion and again denied her motion.
Id. at 6-7.
The record makes clear that the district court directed
its inquiry into the reliability of the proffered testimony.5
As the proponent of Dr. Mainland’s testimony, Officer
Bartlett provided the court with ample grounds to find Dr.
Mainland’s testimony reliable. Although, at trial, Ms.
Jenkins identified what she believed to be shortcomings
in Dr. Mainland’s reconstruction of the shooting, she did
5
Ms. Jenkins does not contend that Dr. Mainland’s testimony
was not relevant.
No. 06-2495 13
not explain how these alleged shortcomings would affect
the reliability of Dr. Mainland’s conclusions. No attempt
was made to show that the absence of these analyses
caused Dr. Mainland’s investigation to fall below the
level of intellectual rigor employed by an expert in the
field. For example, although Ms. Jenkins seemed to find
it significant that Dr. Mainland could not say whether
Officer Bartlett had fired from the ground or from the
hood of the car, Ms. Jenkins did not explain how such
knowledge, or the lack thereof, would affect the reliabil-
ity of Dr. Mainland’s opinion testimony. Ms. Jenkins
simply made the unsupported and conclusory state-
ment that lack of this knowledge rendered Dr. Mainland’s
conclusions “conjecture and speculation.” Id. at 6. Under
these circumstances, we cannot say that the district court
abused its discretion in finding that the proposed testi-
mony of Dr. Mainland was sufficiently reliable.
B. Attorney-Client Privilege
Ms. Jenkins next submits that it was error for the dis-
trict court to sustain Officer Bartlett’s claim of attorney-
client privilege with respect to his conversations with
Cermele made in the presence of DeBraska, a third party.
The scope of the attorney-client privilege is a question of
law which we review de novo. See United States v. BDO
Seidman, 337 F.3d 802, 809 (7th Cir. 2003). We review the
district court’s findings of fact and application of law to
fact in connection with a claim to attorney-client privilege
for clear error. See United States v. Frederick, 182 F.3d 496,
499 (7th Cir. 1999) (application of law to fact); United States
v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (findings of
fact).
14 No. 06-2495
On the night of the shooting, DeBraska came to the police
station to assist Cermele, Officer Bartlett’s attorney, as
Cermele prepared to represent Officer Bartlett at his
interview with Internal Affairs. DeBraska testified that it
had been custom since the 1960s for a person in his posi-
tion to come to the police station after an officer had been
involved in a shooting to assist the officer’s attorney in
providing legal services to the officer by gathering infor-
mation and assuring that the attorney’s representation
followed department rules. R.200 at 54, 59. Officer Bartlett’s
testimony was consistent with DeBraska’s account of the
events of the evening. He stated that DeBraska had been
present during his conversations with Cermele in order
to facilitate communications between the two. Id. at 30, 46,
50.
The district court held that DeBraska’s presence during
Officer Bartlett’s conversations with Cermele did not
destroy the attorney-client privilege. Id. at 81. The court
recognized that, ordinarily, the presence of a third person
would destroy the attorney-client privilege, but noted the
exception for the presence of an agent assisting the attor-
ney in rendering legal services. Id. at 79-80. Based on the
testimony of Officer Bartlett and DeBraska, the court held
that DeBraska was present at the police station on the
night of the shooting as an adjunct of Officer Bartlett’s
attorney. Id. at 80. The court found that DeBraska was there
to assist Cermele by gathering information and by pro-
viding “expert advice on the rules and procedures of the
department” to facilitate Cermele’s representation of
Officer Bartlett. Id. Under these circumstances, the court
found that DeBraska “play[ed] the same role as would
a paralegal in a law office, a secretary, or anyone else
connected with the office.” Id.
No. 06-2495 15
The attorney-client privilege protects communications
made in confidence by a client to his attorney in the
attorney’s professional capacity for the purpose of obtain-
ing legal advice. See Evans, 113 F.3d at 1461. “[B]ecause the
privilege is in derogation of the search for the truth, it is
construed narrowly.” Id. Thus, ordinarily, statements
made by a client to his attorney in the presence of a third
person do not fall within the privilege, even when the
client wishes the communication to remain confidential,
because the presence of the third person is normally
unnecessary for the communication between the client and
his attorney. Id. at 1462. However, there is an exception to
the general rule that the presence of a third party will
defeat a claim of privilege when that third party is present
to assist the attorney in rendering legal services. 2 Christo-
pher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 183 at 312 (2d ed. 1994).
Ms. Jenkins recognizes this exception, but insists that it
is limited to those individuals who would be considered
agents of the attorney under the law of master and servant.
Nothing in our case law so limits the exception. This
exception applies both to agents of the attorney, such as
paralegals, investigators, secretaries and members of the
office staff responsible for transmitting messages be-
tween the attorney and client, and to outside experts
engaged “to assist the attorney in providing legal services
to the client,” such as accountants, interpreters or poly-
graph examiners. Id. at 313. Additionally, this exception
reaches retained experts, other than those hired to testify,
when the expert assists the attorney by transmitting or
interpreting client communications to the attorney or
formulating opinions for the lawyer based on the client’s
communications. Id. at 314.
16 No. 06-2495
Because there was no legal error in defining the scope
of the claimed privilege, our review of the district court’s
decision sustaining Officer Bartlett’s claim of privilege is
limited to clear error. We shall reverse only if, on review
of the entire evidence, we are “left with the definite and
firm conviction that a mistake has been committed” in the
application of the law to the facts. Malachinski v. Comm’r,
268 F.3d 497, 505 (7th Cir. 2001) (quoting Coleman v.
Comm’r, 16 F.3d 821, 825 (7th Cir. 1994)) (internal quotation
marks omitted). To support his claim of privilege, Officer
Bartlett and DeBraska testified regarding DeBraska’s
activities on the night of the shooting as Officer Bartlett
prepared to meet with Internal Affairs. Both testified that
DeBraska was there solely to assist Cermele as he prepared
to represent Officer Bartlett. Ms. Jenkins offered no evi-
dence to contradict this testimony. The district court
chose to credit the testimony of Officer Bartlett and
DeBraska. Ms. Jenkins has offered no reason why the
court should not have credited this testimony, and there
is no other basis in the record to find the court’s factual
findings clearly erroneous.6
6
We note the narrowness of our holding in this regard. We
do not suggest that an independent privilege exists for com-
munications between an individual and his union representa-
tive. Nor do we imply that the presence of a union official while
an individual discusses an ongoing investigation with his
attorney never will abrogate a claim of privilege. However,
where, as is the case here, the district court finds that a third
party is present during conversations between an attorney
and a client in preparation for an investigatory interview and
the third party is present solely to assist the attorney in render-
ing legal services to the client, the third party’s presence will
(continued...)
No. 06-2495 17
C. Monell Claims
Ms. Jenkins brought claims against the City and Chief
Jones in his official capacity based on Officer Bartlett’s
alleged violation of Mr. Jenkins’ constitutional rights. She
alleged that they were deliberately indifferent to the rights
of Mr. Jenkins in their failure to train and supervise
Officer Bartlett. The district court granted summary judg-
ment in favor of the City and Chief Jones with respect to
Ms. Jenkins’ claims; it could find no genuine issue of
material fact with respect to the question of deliberate
indifference.
We review a district court’s grant of summary judgment
de novo. Alexander v. City of South Bend, 433 F.3d 550, 554
(7th Cir. 2006). Summary judgment is appropriate where
there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When
the nonmoving party bears the ultimate burden of proof
at trial, the nonmoving party must come forward with
specific facts demonstrating an issue for trial to survive
summary judgment. Id. at 324. Only disputes as to facts
which are material, i.e., “facts that might affect the out-
come of the suit under the governing law,” and genuine,
i.e., disputes for which “the evidence is such that a reason-
able jury could return a verdict for the nonmoving party,”
will preclude summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
6
(...continued)
not defeat a claim of privilege. The third party’s status as a
union representative is immaterial to the question of the
attorney-client privilege.
18 No. 06-2495
A municipality may not be held liable under § 1983
based on a theory of respondeat superior or vicarious
liability. See Monell, 436 U.S. at 694. A municipality only
may be held liable under § 1983 for constitutional viola-
tions caused by the municipality itself through its own
policy or custom. Id. Although a municipality may be
directly liable for constitutional violations by its officers
when the municipality evinces a deliberate indifference
to the rights of the plaintiff by failing to train adequately
its officers to prevent the violation, there can be no liability
under Monell for failure to train when there has been no
violation of the plaintiff’s constitutional rights. See Alexan-
der, 433 F.3d at 557 (noting that a municipality may not be
held liable under Monell for failure to train adequately or
to supervise its police officers when the plaintiff fails to
demonstrate any constitutional violation by a municipal
employee). The jury found that Mr. Jenkins’ constitutional
rights were not violated when Officer Bartlett fired
upon him, thus the City cannot be held liable for any
failure to train.
Even if that were not the case, Ms. Jenkins has not raised
a genuine issue of material fact with respect to any defi-
ciency in the City’s training that could give rise to direct
liability for a failure to train adequately its officers. A
municipality will be held liable for the violation of an
individual’s constitutional rights for failure to train ade-
quately its officers only when the inadequacy in training
amounts to deliberate indifference to the rights of the
individuals with whom the officers come into contact. City
of Canton v. Harris, 489 U.S. 378, 388 (1989). Proof of
deliberate indifference requires more than “[a] showing
of simple or even heightened negligence.” Bd. of County
Comm’rs of Bryan County v. Brown, 520 U.S. 397, 407 (1997).
No. 06-2495 19
We shall find deliberate indifference on the part of
policymakers only when such indifference may be con-
sidered a municipal policy or custom. City of Canton, 489
U.S. at 389. This may arise in either of two circumstances.
First, a municipality acts with deliberate indifference
when, “in light of the duties assigned to specific officers or
employees the need for more or different training is so
obvious, and the inadequacy so likely to result in the
violation of constitutional rights,” that the deficiency
exhibits deliberate indifference on the part of municipal
policymakers. Id. at 390. Alternatively, we may find
deliberate indifference when a repeated pattern of constitu-
tional violations makes “the need for further training . . .
plainly obvious to the city policymakers.” Id. n.10.
Ms. Jenkins submits that, in light of several incidents in
which MPD officers exercised deadly force on suspects in
vehicles, the City and Chief Jones were deliberately
indifferent to the rights of Mr. Jenkins when they failed to
provide additional training or to exercise greater super-
vision. As the party on whom the burden of proof rested at
trial, Ms. Jenkins was obligated to come forth with evi-
dence to support this claim in order to survive summary
judgment. Ms. Jenkins identified four incidents between
August 1997 and September 2002, not including the
shooting of Mr. Jenkins, in which Milwaukee police fired
upon a suspect in a vehicle. R.90 at 101-12. Each incident
was investigated by the MPD and no constitutional vio-
lations were found. Ms. Jenkins does not challenge the
adequacy of these investigations. The evidence Ms. Jenkins
presents shows only that four individuals were shot by
MPD officers while in a vehicle; it does not show that each
or any of these shootings amounted to a constitutional
20 No. 06-2495
violation.7 This is not enough to provide the City or Chief
7
The first of the four prior shootings occurred in August 1997.
In that incident, an MPD officer approached Victor Rodriguez,
who the officer believed to be wanted for multiple armed
robberies. When the officer instructed Rodriguez to lie on the
ground on his stomach, Rodriguez jumped up, got into his
car and closed the door. The officer approached Rod-
riguez’s vehicle from the front to provide cover and to get a
better view of Rodriguez. Rodriguez then reached for something
on the floor or seat of the vehicle. The officer believed Rodriguez
was reaching for a weapon and fired one shot into the vehicle’s
windshield. Rodriguez was not killed and ultimately was
apprehended after fleeing the scene.
The second shooting occurred in July 1998. In that instance, an
MPD officer approached a car from the front. As the officer
approached, the vehicle began moving toward him. The officer
stepped to the side and pointed his revolver into the vehicle.
The weapon discharged accidentally and the driver, Antonio
Davis, was killed.
The third shooting also occurred in July 1998, on the same day
as the Davis incident. The third shooting involved Donnel
Sims. There, two MPD officers approached Sims in his car. When
the officers noticed open liquor bottles in the car, Sims began
backing his vehicle away slowly. One of the officers then
reached into the vehicle to shut off the ignition and Sims
accelerated, dragging the officer. When Sims stopped the
vehicle, the officer was thrown. After the officer was thrown,
Sims attempted to flee the scene and the officer who had
been dragged fired four shots into the vehicle. Sims was
wounded but not killed.
The fourth shooting occurred in June 2002. Two MPD officers
identified a vehicle as stolen. The officers pulled their squad
car approximately 15 feet behind the vehicle and got out. The
(continued...)
No. 06-2495 21
Jones with actual or constructive knowledge that “the
police . . . so often violate constitutional rights that the
need for further training must have been plainly obvious.”
City of Canton, 489 U.S. at 390 n.10.
For these reasons, Ms. Jenkins has failed to raise a
genuine issue of material fact with respect to her claims
against the City and Chief Jones, and the district court’s
grant of summary judgment is affirmed.
Conclusion
Accordingly, we conclude that the district court did not
abuse its discretion when it permitted Dr. Jentzen and
Dr. Mainland to testify. Nor did the district court commit
clear error by sustaining Officer Bartlett’s claim of attorney-
client privilege with respect to his conversations with
Cermele in DeBraska’s presence. Further, because Officer
Bartlett did not violate Mr. Jenkins’ constitutional rights,
there can be no Monell liability on the part of the City or
Chief Jones. In any event, Ms. Jenkins has failed to raise a
genuine issue of material fact with respect to the Monell
7
(...continued)
driver of the stolen vehicle, Samuel Rodriguez, then accelerated
his vehicle toward the driver’s side of the squad car. At that
time, the officer driving the squad car was outside of the
squad car in between the driver’s side door and the squad car’s
body. As Rodriguez approached, the officer identified himself
as an MPD officer and fired one shot into Rodriguez’s vehicle.
Rodriguez’s vehicle then struck the squad car, trapping the
officer between the door and the body of the squad car, crush-
ing him. The officer then fired another shot into Rodriguez’s
vehicle. Rodriguez died of the two gunshots.
22 No. 06-2495
liability of the City and Chief Jones for failure to train
adequately Officer Bartlett. The decision of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-23-07