Sylvia Perkins v. Joshua Hastings

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2079
___________________________
Sylvia Perkins, as a Personal Representative of the Estate of Bobby Moore, III, deceased
lllllllllllllllllllllPlaintiff - Appellant
v.
Joshua Hastings, in his individual and official capacities; Stuart Thomas, in his
individual and official capacities; Little Rock, City of, a municipality
lllllllllllllllllllllDefendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: April 12, 2018
Filed: February 7, 2019
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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
Little Rock, Arkansas, Police Officer Joshua Hastings shot and killed fifteen-
year-old Bobby Moore III, on August 12, 2012. Moore’s mother, Sylvia Perkins,
acting as a personal representative of his estate, filed suit against Officer Hastings,
Police Chief Stuart Thomas, and the City of Little Rock, alleging claims under 42
U.S.C. § 1983 and state law. The district court1 granted summary judgment in favor
of Thomas and the City, and the case against Hastings proceeded to trial. A jury
found that Hastings had violated Moore’s Fourth Amendment right to be free from
excessive force and returned a verdict in favor of Perkins. After final judgment was
entered, Perkins appealed, challenging the summary judgment order. We affirm.
I. Background
Hastings applied for a position with the Little Rock Police Department in May
2006. Before being hired, Hastings submitted to a polygraph examination, during
which he admitted that he had attended a Ku Klux Klan meeting when he was a junior
in high school. In a statement, Hastings explained that he snuck into the meeting with
two friends to “see what [his friend’s] grandpa does.”
A hiring committee approved Hastings for hire by a vote of three-to-one. The
committee was composed of Chief Thomas, a white male who had served twenty-nine
years with the Little Rock Police Department, and three other high-ranking officers,
all of whom had served more than twenty years on the police force. The lieutenant
who cast the negative vote stated that Hastings’s attendance at a Ku Klux Klan
meeting disqualified him from serving with the Little Rock Police Department. In a
memo to his captain, the lieutenant wrote that he had “serious reservations regarding
[Hastings’s] judgment and maturity” and that Hastings was “an unfavorable candidate
and a potential liability for the Little Rock Police Department.”
Hastings was hired in March 2007 and attended twenty weeks of police
training. After graduation, Hastings underwent twelve weeks of field training, during
1
The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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which he rode along with more experienced officers. Hastings thereafter received
forty hours of training per year, including refresher courses on the use of force.
Hastings was the subject of multiple disciplinary actions over the course of his
five-year career with the Little Rock Police Department. He repeatedly failed to
activate his motor vehicle recording device; failed to properly store property or
properly complete paperwork; failed to properly investigate; failed to honor
subpoenas; failed to notify supervisors; and failed to follow orders or left his district
without permission. Hastings also used inappropriate language or engaged in
unbecoming conduct; engaged in improper driving or damaged department
equipment; slept on duty; and was untruthful. Hastings’s discipline for these
violations ranged from counseling and reprimands to suspensions from one to fifteen
days.
The Little Rock Police Department maintains an Early Intervention System
(EIS) that monitors officers to identify patterns of misconduct. Supervisors have
access to the system, and the office of professional standards receives an alert
whenever an officer meets “an established threshold [of incidents] . . . pertaining to
use of force, on-duty motor vehicle accidents, police pursuits and complaints
involving misconduct and inadequate service.” Until the software was upgraded in
2012, the system did not distinguish between officers who had used force during an
incident and those officers who had not used force but were otherwise involved.
Hastings triggered three EIS alerts during his career. In April 2009, the EIS
system identified Hastings as having been involved in six use-of-force incidents
during the preceding year. The department had previously investigated the incidents
and exonerated Hastings of any wrongdoing. According to the facts gathered by the
internal affairs division and set forth in the EIS report, three incidents involved
suspects attempting to punch Hastings, to which Hastings responded with a “brachial
stun,” a punch, and “several straight punches,” respectively. The remaining incidents
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involved force related to taking down noncompliant or fleeing suspects. Hastings’s
immediate supervisor reviewed the EIS report and concluded that Hastings had
employed “the minimum use of force necessary to carry out his assigned duties as a
patrolman.” The sergeant determined that the report was a “false alarm” and
recommended no disciplinary action. Two lieutenants, a captain, and Chief Thomas
all concurred in the sergeant’s recommendation.
The next EIS alert occurred in February 2010, after Hastings was involved in
ten use-of-force incidents in the preceding year. The department previously had
investigated those incidents and exonerated Hastings of any wrongdoing. According
to the EIS report, Hastings used force when confronted with suspects who were
noncompliant, fleeing, resisting arrest, or attempting to punch or kick the officers.
Hastings used force similar to that which was reported in the April 2009 EIS report,
including takedowns and punches. He also used a “straight arm bar,” a “shoulder pin
maneuver,” “straight arm strikes,” and baton strikes.
After reviewing the file, his sergeant wrote that Hastings’s use-of-force
incidents were “not that high,” in light of his “patrol area consist[ing] of the highest
violent crime area and . . . the heaviest call-load.” She did not recommend discipline
but indicated that she would monitor Hastings’s performance. The lieutenant agreed,
and the captain advised that he had asked Hastings’s supervisors to work with
Hastings “very close[ly] to ensure he is professional and works to avoid uses of
force.” The assistant chief of police recommended additional monitoring and
supervision, however, in light of the number of incidents involving the use of force
and vehicle pursuits, as well as an on-duty motor vehicle accident and other
disciplinary issues. Based on the assistant chief’s recommendations, Chief Thomas
ordered Hastings to have bi-weekly counseling sessions and required bi-weekly
progress reports for six months.
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While the investigation into the second EIS alert was pending, Cedric McSwain
filed a citizen complaint against Hastings. McSwain reported that he was standing
in an alley on March 15, 2010, when he saw officers approaching. McSwain reported
that he offered his identification, put his arms in the air, and told the officers his name
and address. According to McSwain, officers grabbed him by the arms and legs,
threw him to the ground, put a foot on his back, and punched him in the eye. The
police report indicated that McSwain was intoxicated, belligerent, and resisted arrest.
The report further indicated that because the officers believed McSwain to be a
suspect who had fled on foot, they took him to the ground. According to the officers
involved in the incident, Hastings held McSwain’s left arm during the takedown and
thereafter handcuffed him. Hastings did not submit any documentation about the
incident or his use of force.
Following an internal affairs investigation, Chief Thomas found that Hastings
had violated the department’s general orders requiring police-incident reports and
use-of-force reports. Hastings was exonerated from the allegations that he had used
excessive force and failed to properly operate his motor vehicle recording device. An
allegation of untruthfulness was deemed “not sustained.” Chief Thomas ordered
counseling and remedial training on documenting the use of force. McSwain later
filed a lawsuit against Hastings, Chief Thomas, and other officers. The lawsuit was
dismissed after McSwain failed to respond to the merits of the defendants’ motion for
summary judgment. See McSwain v. Hastings, No. 4:13-cv-122-DPM, 2015 WL
731286 (E.D. Ark. Feb. 17, 2015).
Hastings triggered a third EIS alert in April 2010 after being involved in six
use-of-force incidents between January 24, 2010, and April 18, 2010. The
department investigated those incidents and exonerated Hastings. Like the previous
reports, this report indicated that Hastings had used force against individuals who
were noncompliant, fleeing, actively resisting arrest, or attempting to punch or kick
officers. Hastings’s use of force included takedowns, the use of pepper spray, and the
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use of “his bodyweight to maintain control” of a suspect. Hastings was ordered to
continue with his bi-weekly counseling.
Hastings did not trigger any further EIS reports during his time on the police
force, nor were any further citizen complaints or lawsuits filed against him.
According to his concise officer history report, Hastings was involved in a total of
forty-one incidents involving the use of force. His only use of deadly force during
his five-year career occurred when he shot Moore.
Chief Thomas authorized an investigation on June 27, 2012, into allegations
that Hastings had been untruthful and was guilty of dereliction of duty. According
to the internal affairs report, Hastings had been dispatched to a store at 4:13 a.m. on
June 25, 2012, after an alarm company called and reported glass breakage. The alarm
company called again at 4:37 a.m. to report an alarm indicating that the front door
was opened, at which time Hastings reported to dispatch that he had shaken the front
door. Hastings’s incident report stated that the offense was a false alarm and that all
doors and windows were locked and secured.
The incident was recorded on the store’s security camera and directly
contradicted Hastings’s version of the incident. The recording showed a rock being
thrown through a window in the front door. A suspect had entered the business and
later exited with a large white bag containing the loot. A police car then drove by
without stopping, and the store manager later can be seen entering and exiting the
store, presumably while waiting for the officers. The manager called dispatch at 4:46
a.m. to report that no officers had responded to the calls. During an interview,
Hastings said that he exited his car, walked up to the doors, and pulled them to make
sure that they were secure. According to the investigation report, the video evidence
“clearly display[ed] the front doors of the business and never showed Officer
Hastings approach the doors.” Chief Thomas determined that Hastings had neglected
his duty and been untruthful, in violation of the rules and regulations of the police
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department. Hastings remained on duty during the investigation into the store
incident.
We turn, then, to the incident that gave rise to the present action. In the early
morning hours of August 12, 2012, Hastings responded to a report of suspicious
activity near an apartment building. According to the caller, two individuals were
walking through the parking lot and looking into vehicles with flashlights. Hastings
arrived on the scene and advised over the radio that he had heard glass breaking and
had observed three black males. The three suspects soon entered a vehicle, and
Moore drove the vehicle forward toward Hastings. When Hastings stepped out in
front of the car, Moore either stopped the car or placed it in reverse. Hastings fired
two rounds into the driver’s side compartment, killing Moore. Homicide detectives
and members of the Crime Scene Search Unit were called to the scene, and the Little
Rock Police Department began its criminal investigation.
Several hours after the shooting and in the presence of his attorney, Hastings
was advised of his Miranda rights and interviewed by law enforcement officials.
Hastings stated that he was positioned near the top of a hill when he observed two
black males in a vehicle and one black male standing nearby holding a flashlight.
Hastings repositioned himself and then observed the three suspects enter a different
vehicle. Hastings stated that when the vehicle drove forward, he stepped out in front
of it, turned on his flashlight, and yelled, “Police, stop the car!” According to
Hastings, the driver did not slow down and instead drove “straight at [him].”
Hastings stated that he backpedaled and realized that he had no place to go, with
rocks behind him and a wall next to him. Hastings claimed that he then shot into the
vehicle to prevent the driver from running him over.
Hastings stated that after he fired the two shots, the vehicle passed by him so
closely, he could have touched it. According to Hastings, the vehicle “crashed into
the rocks” as it proceeded forward, traveled just over an embankment, stopped
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momentarily, and then rolled backwards until its rear end struck a parked car. The
two passengers fled from the scene. Hastings maintained that he did not shoot at the
vehicle while it was traveling in reverse.
Police officers located the two teenage boys who had been with Moore that
August morning. One of the boys explained that as the vehicle approached the
dumpster, he saw a light and told Moore to stop, which he did. The teenager
recounted that Moore put the gear in reverse and started backing down the hill. The
officer then opened fire. The other boy said that they were unaware that a police
officer was present until the officer stepped in front of the car. He said that Moore
was stopping the car when the officer fired shots, whereupon the vehicle traveled
backwards.
Hastings’s version of the incident was inconsistent with the passengers’
accounts and the evidence gathered at the crime scene. The rocky embankment that
Hastings claimed the vehicle traveled over was undisturbed. The vehicle’s
undercarriage was not damaged, and its gear shift was in neutral. A reconstruction
of the event determined that the victim’s vehicle was traveling “in reverse under
power” before it hit the parked car. Chief Thomas ultimately concluded that the
vehicle had stopped several feet from Hastings and that the driver was in the process
of reversing when Hastings discharged his weapon.
In September 2012, a state district judge issued a warrant for Hastings’s arrest
on a charge of manslaughter in violation of Arkansas Code § 5-10-104. The
supporting affidavit stated that “[w]hile it appears that the vehicle was driving toward
Hastings at some point, all of the physical evidence is consistent with statements
made by the occupants of the car, indicating that the car was stopped, or in reverse
at the time Hastings fired, and not traveling toward him at a high rate of speed, as
Hastings indicated in his statement.”
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Following the internal affairs investigation, Chief Thomas terminated Hastings
for violating the general orders and the rules and regulations of the Little Rock Police
Department. The termination was based on Hastings’s shooting of Moore and his
dereliction of duty and untruthfulness regarding the store break-in. With respect to
the shooting, Hastings had violated General Order 303, Section II.D., which states,
“Officers may only use Deadly Force to protect themselves or others from what they
reasonably believe to be an immediate threat of death or serious injury.” Hastings
had also violated General Order 303, Section II.E.1-2, which provides:
Discharging firearms at a moving or fleeing vehicle is prohibited, unless
it is necessary to prevent imminent death or serious physical injury to
the officer or another person.
Officers will not voluntarily place themselves in a position in front of an
oncoming vehicle where Deadly Force is the probable outcome. When
confronted by an oncoming vehicle, officers will move out of its path,
if possible, rather than fire at the vehicle.
Following the criminal and internal investigations, a Deadly Force Review
Board was convened to evaluate both investigations. The Board determined that the
incident was avoidable and that Hastings “did not adhere to his training when he
exited his position of cover and concealment and placed himself in the path of the
moving vehicle.”
Perkins filed this action against Hastings, Chief Thomas, and the City of Little
Rock in June 2015. As relevant to this appeal, she alleged that the City “maintained
a widespread custom of excessive force and untruthfulness,” that Thomas and the
City failed to train or supervise police officers, and that Thomas was individually
liable for hiring and retaining Hastings.
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In opposition to defendants’ motion for summary judgment, Perkins submitted
an affidavit and a report by Roger Clark, an expert in police procedures, who opined
that the City failed to investigate or discipline its officers. Clark compared the
number of incidents of force sustained as excessive (33) to the total number of use-of-
force incidents that generated internal affairs reports (577) by Little Rock police
officers from 1985 to 2016. Clark found that the percentage of incidents deemed
excessive (6 percent) was “inordinately low” and was “a per se indicator of a pattern
and practice by the Little Rock Police Department to ignore clear indicators of
excessive force by officers.” According to Clark, the numbers indicated that the City
allowed officers “to repeatedly inflict excessive force and ignore the written policies
and procedures of the Little Rock Police Department.” Clark did not review the
individual incidents involving the use of force and did not identify incidents in which
a finding of excessive force should have been sustained but was not. When asked to
identify an instance in which excessive deadly force was used between 2004 and
2011, Clark replied, “I did not review the uses of deadly force case by case.”
Similarly, Clark did not examine each incident in which Hastings had applied
force, concluding instead that Hastings must have used excessive force because he
had been involved in forty incidents involving the use of force during his five-year
career. Later in his deposition, Clark identified three incidents in which he believed
Hastings had used excessive force. When asked which incidents indicated that
Hastings would use deadly force against Moore, Clark replied, “[W]hen you have an
officer that’s non-compliant in any area, it’s reflective of being non-compliant in the
critical area . . . [, and] sooner or later, their departure from the standard will result
in a catastrophic outcome.”
As recounted above, the district court granted summary judgment to Thomas
and the City. On the claim alleging a municipal custom of permitting or encouraging
excessive force, the court determined that Perkins had not established an underlying
pattern of excessive force and that “a pattern of untruthfulness, even if proven, is not
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similar enough to be the proximate cause of an officer’s use of excessive force.” D.
Ct. Order of Jan. 27, 2017, at 14. With respect to Perkins’s claim alleging failure to
train or supervise the City’s police officers, the district court concluded that “the
undisputed facts do not demonstrate that either Thomas or the city of Little Rock was
aware of and deliberately indifferent to a pattern of unconstitutional conduct by the
LRPD that was similar to the shooting of Bobby Moore.” Id. at 4. The district court
also concluded that “the single act of hiring Hastings did not proximately cause a
violation of Bobby Moore’s constitutional rights.” Id. at 15.
Perkins moved for reconsideration, arguing that the court had committed
“serious misapplications of the law” and had “arbitrar[il]y pars[ed]” the evidence. D.
Ct. Order of Mar. 24, 2017, at 1. Perkins also claimed that the district court had
disregarded Clark’s expert opinion. The district court denied the motion, reiterating
that Perkins had failed to establish a pattern of prior similar misconduct. The court
further explained that Clark’s statistical analysis alone could not substantiate his
opinion that the City maintained a custom of allowing officers to use excessive force.
II. Discussion
We review de novo the district court’s grant of summary judgment, viewing the
evidence in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor. Andrews v. Fowler, 98 F.3d 1069, 1074
(8th Cir. 1996). Summary judgment is appropriate if the moving party shows that
there is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “Summary judgment is also
appropriate when the plaintiff has failed to make a sufficient showing of the existence
of an essential element of her case.” Andrews, 98 F.3d at 1074.
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A. Municipal Liability
A municipality may be held liable under § 1983 if it, “under color of any
statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983;
see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Municipal liability
exists “only where the municipality itself causes the constitutional violation.” City
of Canton v. Harris, 489 U.S. 378, 385 (1989). A plaintiff thus must “identify a
municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of Cty.
Comm’rs v. Brown, 520 U.S. 397, 403 (1997).
“[A]n act performed pursuant to a ‘custom’ that has not been formally approved
by an appropriate decisionmaker may fairly subject a municipality to liability on the
theory that the relevant practice is so widespread as to have the force of law.” Id. at
404. The plaintiff also must show a direct causal link between the custom and the
deprivation of rights, i.e., that “the municipality was the ‘moving force’ behind the
injury alleged.” Id. (quoting Monell, 436 U.S. at 694). “Where a plaintiff claims that
the municipality has not directly inflicted an injury, but nonetheless has caused an
employee to do so, rigorous standards of culpability and causation must be applied
to ensure that the municipality is not held liable solely for the actions of its
employee.” Id. at 405.
Perkins first contends that the violation of her son’s Fourth Amendment rights
was caused by the City’s failure to adequately investigate police misconduct. To
establish a municipal custom based on a failure to prevent police misconduct, a
plaintiff must show that the municipality acted with deliberate indifference to the
rights of persons with whom the officers come into contact. See Harris v. City of
Pagedale, 821 F.2d 499, 504 (8th Cir. 1987) (applying a deliberate indifference
standard to a claim of “a municipal custom of failing to receive, investigate or act on
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citizen complaints of physical and sexual misconduct by police officers”). To
establish deliberate indifference, a plaintiff ordinarily must show a pattern of
constitutional violations.2 See Brown, 520 U.S. at 409 (explaining that a “pattern of
injuries [is] ordinarily necessary to establish municipal culpability and causation”);
Parrish v. Luckie, 963 F.2d 201, 204 (8th Cir. 1992) (“To establish a city’s liability
based on its failure to prevent misconduct by employees, the plaintiff must show that
city officials had knowledge of prior incidents of police misconduct and deliberately
failed to take remedial action.”); Harris, 821 F.2d at 504 (“The claimant must
demonstrate ‘deliberate indifference or tacit authorization [by municipal officials] of
the offensive acts by [failure] to take remedial steps following notice of a pattern of
such acts by . . . subordinates.’” (alterations in original) (quoting Wilson v. City of
N. Little Rock, 801 F.2d 316, 322 (8th Cir. 1986))). The district court determined
that Perkins’s failure to show a pattern of constitutional violations foreclosed her
inadequate-investigation claim.
The district court did not err when it required Perkins to establish a pattern of
constitutional violations to prove her claim. See Mettler v. Whitledge, 165 F.3d
1197, 1205 (8th Cir. 1999) (“Evidence that a police department has failed to
investigate previous incidents similar to the incident in question may support a
finding that a municipal custom exists, and that such a custom encourages or allows
officers to use excessive force without concern for punishment.”); Rogers v. City of
Little Rock, 152 F.3d 790, 798 (8th Cir. 1998) (“In order to subject the city to § 1983
liability Rogers must show that the city had a ‘“policy or custom” of failing to act
upon prior similar complaints of unconstitutional conduct, which caused the
2
Perkins has not argued that this case is one where Hastings’s use of excessive
force was “the plainly obvious consequence” of the City’s alleged failure to
investigate police misconduct. See Brown, 520 U.S. at 409.
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constitutional injury at issue.’” (quoting Andrews, 98 F.3d at 1075)).3 Nor did the
district court misinterpret Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), in
which the court held that the plaintiff had presented sufficient evidence to allow a
jury to conclude that the municipality permitted or encouraged a pattern of excessive
force through its inadequate investigations of civilian complaints. Although Perkins
maintains that the City’s investigations into misconduct were “nothing more than a
facade, designed to exonerate officers,” Appellant’s Br. 16, she has not addressed the
substance of the district court’s decision to grant summary judgment to the City—that
she had not presented sufficient evidence to show a pattern of constitutional
violations.
At summary judgment, Perkins argued that the evidence established a “pattern
of shooting at moving cars that do not pose an objectively reasonable fear of
imminent death or great bodily harm.” She presented some evidence regarding six
incidents in which officers had used deadly force against individuals driving vehicles.
The district court concluded that only one of the shootings was arguably unjustified
and that the remaining incidents involved drivers attempting to run over police
officers. D. Ct. Order of Jan. 27, 2017, at 13. The court concluded that Perkins thus
had not shown a pattern of constitutional violations, even assuming that some officers
had “acted imprudently because they could have stayed inside their vehicles, waited
3
Perkins argues that the district court relied on a “non-existent quotation” from
Rogers, Appellant’s Br. 8, and thus erroneously concluded that “deliberate
indifference will not be found if the alleged misconduct was investigated and
exonerated or if the officer was disciplined,” see D. Ct. Order of Jan. 27, 2017, at 9.
The district court corrected this error in its order denying Perkins’s motion to
reconsider. See D. Ct. Order of Mar. 24, 2017, at 10-12. Perkins also criticizes the
district court for relying on evidence included in the record but not cited by the
parties. The Federal Rules of Civil Procedure clearly allow the district court to
consider the materials in the record. Fed. R. Civ. P. 56(c)(3) (“The court need
consider only the cited materials, but it may consider other materials in the record.”).
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for backup, or gotten out of the way.” Id. at 14. Perkins has not explained whether
or how the district court erred in its analysis of those incidents, but rather argues that
she has established “that several officers fired at several vehicles despite them not
being in the path of said vehicles.” Appellant’s Br. 48-49; see id. at 22. Even
assuming that the evidence can support her assertion, Perkins still has not shown that
excessive force was used in those shootings, for constitutionally permissible reasons
could exist for an officer to shoot at a moving vehicle even when not in the vehicle’s
path.
Perkins also argued at summary judgment that certain other police shootings
demonstrated a pattern of excessive force. The district court considered evidence of
those shootings, but found “Perkins’s accounts of these events [to be] largely
speculative.” D. Ct. Order of Jan. 27, 2017, at 11. On appeal, Perkins cites failures
in the investigation of a police shooting that occurred in December 2010. The
personal representative of that victim’s estate brought suit, and the case settled after
the officer was denied qualified immunity. While that lawsuit put the City on notice
of a possible constitutional violation, one unjustified shooting does not establish a
pattern of constitutional violations, and Perkins has not shown that the district court
erred in its analysis of the other shootings it considered.
Perkins contends that her expert established “instances of ‘facade’
investigations and inadequate supervision” and that the district court’s “failure to
address—or even to mention—this competent, admissible and unopposed expert
evidence is wholly inexplicable, and constitutes error.” Appellant’s Br. 27. The
record reveals, however, that the district court addressed this expert evidence in its
order denying reconsideration, concluding that Clark’s report and testimony could not
establish a pattern because his opinion was based only on his statistical analysis and
not on actual incidents involving excessive force by Little Rock police officers. D.
Ct. Order of Mar. 24, 2017, at 4-5. We find no error in the court’s conclusion that
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those statistics alone were insufficient to present a triable issue on Perkins’s failure-
to-investigate claim. See Strauss v. City of Chicago, 760 F.2d 765, 768-69 (7th Cir.
1985) (explaining that evidence that the police department sustained only six to seven
percent of all registered complaints “indicate[d] nothing” without identifying what
made the prior conduct illegal and without “show[ing] that a similar illegality was
involved in [the plaintiff’s] case” (internal quotation marks and citation omitted)).
In sum, Perkins claims on appeal that the City maintained a custom of facade
investigations based on alleged shortcomings in the City’s investigations into officer-
involved shootings. The actionable municipal custom here must be one of deliberate
indifference to a pattern of excessive force, however, which Perkins has not
established in light of the fact that she has not shown a pattern of underlying
constitutional violations.
For the same reason, we uphold the grant of summary judgment on Perkins’s
claim alleging that the City had failed to train or supervise its police officers.4 For the
City to be liable under this theory, the “municipality’s failure to train its employees
in a relevant respect must amount to ‘deliberate indifference to the rights of persons
4
Perkins also sued Thomas in his official capacity as police chief. “As we have
noted, ‘[a] suit against a public official in his official capacity is actually a suit against
the entity for which the official is an agent.’” Parrish v. Ball, 594 F.3d 993, 997 (8th
Cir. 2010) (alteration in original) (quoting Elder-Keep v. Aksamit, 460 F.3d 979, 986
(8th Cir. 2006)).
We note in passing that Perkins alleged in her complaint that “Hastings was
trained in the appropriate use of force for police officers” and “was fully aware that
an officer may not use deadly force in situations where his life and safety, or those of
others, is not in danger.” Compl. ¶ 97. The City presented evidence that Hastings
completed approximately 1,500 hours of training, including police academy, field
training, and annual courses on the use of force.
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with whom the [untrained employees] come into contact.’” Connick v. Thompson,
563 U.S. 51, 61 (2011) (alteration in original) (quoting Canton, 489 U.S. at 388); see
Tilson v. Forrest City Police Dep’t, 28 F.3d 802, 807 (8th Cir. 1994) (“The standard
of liability for failure to supervise is ‘demonstrated deliberate indifference or tacit
authorization of the offensive acts.’” (quoting Bolin v. Black, 875 F.2d 1343, 1347
(8th Cir. 1989))). “A pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for
purposes of failure to train.” Connick, 563 U.S. at 62 (quoting Brown, 520 U.S. at
409); see Ball, 594 F.3d at 1002 (requiring “notice of a pattern of unconstitutional
acts committed by subordinates” to establish a failure-to-supervise claim). As set
forth above, Perkins has not established a pattern of similar constitutional violations.
B. Individual Capacity Claims Against Chief Thomas
We reject Perkins’s contention that Chief Thomas should be held individually
liable for Moore’s death based on his decision to hire Hastings. The Supreme Court
has set forth an exacting test for imposing liability based on a hiring decision,
requiring a court to “carefully test the link between the policymaker’s inadequate
decision and the particular injury alleged.” Brown, 520 U.S. at 410; see id. at 415
(“Cases involving constitutional injuries allegedly traceable to an ill-considered
hiring decision pose the greatest risk that a municipality will be held liable for an
injury that it did not cause.”); Morris v. Crawford Cty,, 299 F.3d 919, 923 (8th Cir.
2002) (“The prior complaints in an applicant’s background must be nearly identical
to the type of officer misconduct that caused the constitutional deprivation allegedly
suffered by a plaintiff.”). Perkins points to evidence that Thomas was friends with
Hastings’s father, that Hastings attended a Ku Klux Klan meeting in high school, that
there were irregularities in Hastings’s polygraph examination, and that a lieutenant
advised against hiring Hastings. We conclude that the referred-to evidence cannot
establish the essential link between Thomas’s decision to hire Hastings and his use
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of excessive force against Moore. Stated differently, the evidence presents no
genuine issue of material fact that a “plainly obvious consequence of the hiring
decision” would be Hastings’s unjustified use of deadly force. See Brown, 520 U.S.
at 412.
We also reject Perkins’s argument that she has presented sufficient evidence
to preclude summary judgment on her claim that Thomas failed to adequately train
or supervise Hastings. A supervisor may be held liable “if a failure to properly
supervise and train the offending employee caused a deprivation of constitutional
rights.” Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001) (quoting Andrews, 98
F.3d at 1078). The plaintiff must show that the supervisor “(1) had notice of a pattern
of unconstitutional acts committed by subordinates; (2) was deliberately indifferent
to or tacitly authorized those acts; and (3) failed to take sufficient remedial action; (4)
proximately causing injury to [the plaintiff].” Brewington v. Keener, 902 F.3d 796,
803 (8th Cir. 2018) (internal quotation marks omitted) (quoting Livers v. Schenck,
700 F.3d 340, 355 (8th Cir. 2012)). To prove deliberate indifference, the plaintiff
must show that the supervisor “had notice that the training procedures were
inadequate and likely to result in a constitutional violation.” Livers, 700 F.3d at 356
(quoting Andrews, 98 F.3d at 1078).
Perkins has not presented sufficient evidence to show that Thomas had notice
of a pattern of excessive force by Little Rock officers, nor has she shown that he acted
with deliberate indifference. Hastings’s disciplinary record indicates that he was a
lazy and careless police officer, seemingly unable to complete the paperwork
requirements or meet the scheduling demands of police work. He also engaged in
unbecoming conduct and used inappropriate language. While those violations of the
police department’s general orders or rules and regulations speak volumes about
Hastings’s general unfitness for police work, they do not establish a pattern of
constitutional violations, nor do they show that Thomas’s failure to train or supervise
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Hastings resulted in Moore’s death. See Livers, 700 F.3d at 356 (“To impose
supervisory liability, other misconduct must be very similar to the conduct giving rise
to liability.”).
With respect to Hastings’s use of force over the course of his career, Thomas
ordered additional supervision and additional training after Hastings triggered three
EIS alerts and one citizen complaint in 2009 and 2010. Following those remedial
actions, Hastings had no further EIS alerts or citizen complaints relating to the use of
force. Although Perkins argues that Thomas should have disciplined Hastings for
“body-slam[ming] a mentally-ill, homeless black woman” in July 2010, Appellant’s
Br. 41, Hastings reported that the woman had struck him and that he was trying to
prevent her from striking him again. Other than his use of the word “body slam” to
describe the takedown, the record does not support an inference that Hastings’s use
of force was unconstitutional or that Thomas had notice that the report was false.
Finally, relying on statistics, Perkins claims that Hastings used force more frequently
against racial minorities, but in the absence of evidence that the force used against
racial minorities was excessive or otherwise unjustified, those statistics do not
support a supervisory claim against Thomas. Perkins has thus not submitted evidence
sufficient to show that Thomas had notice that his training and supervision were
inadequate and likely to result in the use of excessive force against Moore.
The judgment is affirmed.
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