Michael Hurd, Jr. v. DC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2020 Decided May 14, 2021
No. 20-7003
MICHAEL D. HURD, JR.,
APPELLANT
v.
DISTRICT OF COLUMBIA, GOVERNMENT,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-00666)
Eric C. Rowe argued the cause for appellant. With him on
the briefs were C. Allen Foster and Erik D. Bolog.
Caroline S. Van Zile, Principal Deputy Solicitor General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee. With her on the brief were Karl
A. Racine, Attorney General, Loren L. AliKhan, Solicitor
General, Carl J. Schifferle, Deputy Solicitor General, and Mary
L. Wilson, Senior Assistant Attorney General.
Before: SRINIVASAN, Chief Judge, HENDERSON and
MILLETT, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: This appeal is the result of a
series of unfortunate events that left Michael D. Hurd, Jr.
suddenly incarcerated for a sentence he believed he had already
served and for which he had completed supervised release. The
narrow question in this case is whether Hurd has stated a claim
that the District of Columbia itself can be held liable for his
loss of liberty without due process. Because the answer to that
question turns on substantial questions of disputed fact, we
hold that the district court erred in granting summary judgment
for the District, and we remand for further proceedings.
I
A
In August 2005, Hurd, an honorably discharged veteran,
was stopped while driving in the District of Columbia. Hurd
immediately informed the officer that he had a firearm in his
glove compartment that he was licensed to carry in North
Carolina. Hurd’s permit, however, did not license him to carry
the firearm in the District of Columbia. The District charged
Hurd with carrying a firearm without a license, which at the
time was a felony offense under D.C. CODE § 22-3204(a)(1)
(1994) (codified as amended at D.C. CODE § 22-4504).
Following the arrest, police from the Metropolitan Police
Department searched Hurd’s residence in the District. They
found a small amount of cocaine and more firearms there. The
District then charged Hurd with four misdemeanors, in addition
to the initial felony. On January 23, 2006, Hurd pled guilty to
all five charges—one count of carrying a pistol without a
license, one count of possessing a prohibited weapon, two
counts of possessing unregistered firearms, and one count of
possessing cocaine. At the sentencing hearing, the District of
3
Columbia Superior Court sentenced Hurd to a total of 45
months’ imprisonment. The court, though, suspended Hurd’s
term of imprisonment and placed him on supervised probation.
After a probation violation later that year, the court revoked
Hurd’s probation and ordered that he serve 42 months of
imprisonment, followed by a three-year term of supervised
release.
At the time of Hurd’s sentence, the District of Columbia
Department of Corrections and the Federal Bureau of Prisons
had a policy under which people convicted in the District of
felonies served their sentence in federal prison, while those
convicted of misdemeanors served their sentence in the District
jail. People who had both felony and misdemeanor sentences,
like Hurd, commonly served their felony sentence first within
the Federal Bureau of Prisons and, once that sentence was
completed, served their remaining misdemeanor sentence in
the District jail.
Hurd served his 15-month felony sentence in a federal
prison in West Virginia. While he was there, Hurd wrote a
letter to the court, requesting pro se that the court reduce his
sentence by either allowing his misdemeanor sentences to run
concurrently with his felony sentence or allowing him to serve
the sentences on probation. While the district court denied
Hurd’s motion, it mailed the order to the District jail, rather
than the prison in West Virginia. So Hurd was unaware that
the court had denied his motion for sentence reduction.
Less than nine months after being sent to prison, the
Bureau of Prisons released Hurd to the Hope Village Halfway
House in the District of Columbia. Because he was not sent to
a District jail to serve the misdemeanor sentence, Hurd
concluded that his motion for sentence reduction must have
been granted. Hurd served one month at the halfway house and
4
then was discharged to begin his period of supervised release.
During his period of supervised release, Hurd remained in
the District of Columbia and regularly submitted to monitoring
and drug tests. Hurd successfully completed his term of
supervised release on July 18, 2010. For the entirety of those
three years, “the conduct of the federal prison that released him,
the halfway house where he lived during his first few weeks
out of prison, the Parole Commission, and the Court Services
and Offender Supervision Agency that regularly monitored
him all reinforced Hurd’s belief that he had been deliberately
released from prison and had fully served his 2006 sentence[,]”
including the misdemeanor components. Hurd v. District of
Columbia, 864 F.3d 671, 676 (D.C. Cir. 2017).
In September 2011, Hurd pled guilty to possessing less
than two ounces of marijuana and was sentenced to nine days
in jail, to be served on weekends. Hurd served the first and
second weekends of that sentence. But when he tried to leave
the jail at the end of the second weekend, a Kafkaesque saga
began.
The story starts with “legal instrument examiners,” who
are District employees whom the Department of Corrections
tasks with reviewing an inmate’s record and relevant databases
“to determine if there are any outstanding warrants or charges”
that should prevent the inmate’s release from jail. J.A. 269.
One of those examiners, Mark Sibert, concluded that Hurd had
never completed the sentence for his 2006 misdemeanor
convictions, and prevented Hurd’s release after his second
weekend sentence.
The examiner later emailed the Bureau of Prisons to ask
why Hurd had been released in 2007 after completing only his
felony sentence. Two weeks later, the Bureau responded that
the paperwork it received on Hurd did not indicate that he was
5
supposed to be remanded to the District jail to serve additional
time. See J.A. 250 (noting that the Custody and Detention
Form showed that there was no “consecutive misdemeanor
term”); see also J.A. 252. On October 26, 2011, the District’s
Department of Corrections emailed Hurd to advise him that he
had been “erroneously release[d]” from federal prison in 2007
because he “also had a consecutive misdemeanor to serve.”
J.A. 185. In other words—four years after his release from
prison, and after completing three years of supervised
release—Hurd was told he would have to serve another 27
months in jail.
In November 2011, Hurd filed a writ of habeas corpus in
the District of Columbia Superior Court. That court, though,
did not hold a hearing on the petition until July 27, 2012. At
that time, the court ruled from the bench that Hurd must “serve
the remainder of his sentence[.]” J.A. 155. Hurd appealed.
But the District of Columbia Court of Appeals did not act on
Hurd’s appeal until December 2013, at which point it dismissed
the petition as moot because Hurd had been “released from
[jail] on September 30, 2013, upon completion of his
sentence.” Order Sua Sponte Dismissing Appeal, Hurd v.
United States, No. 12-CO-1364, slip op. at 1 (D.C. Dec. 18,
2013).
B
In May 2015, Hurd filed suit against the District under 42
U.S.C. § 1983, alleging that his spontaneous incarceration
deprived him of due process under the Fifth Amendment to the
United States Constitution. Complaint, Hurd v. District of
Columbia, No. 15-cv-666-ESH (D.D.C. May 1, 2015), ECF
No. 1. The district court dismissed the case on the ground that,
as a matter of claim preclusion, Hurd’s prior unsuccessful
habeas corpus action barred him from relitigating the legality
6
of his incarceration in the Section 1983 lawsuit. Hurd v.
District of Columbia, 146 F. Supp. 3d 57, 63–64 (D.D.C.
2015). The court also held that Hurd’s surprise two-year
incarceration violated neither substantive nor procedural due
process protections. Id. at 64–72.
This court reversed. We first held that Hurd’s prior habeas
proceeding, which had become moot before his appeal was
resolved, did not preclude Hurd’s Section 1983 damages claim.
Hurd, 864 F.3d at 679–680. We also held that Hurd had
properly alleged a procedural due process claim because he
possessed a liberty interest in not being incarcerated without
warning. Id. at 683–684. We emphasized that the District’s
Department of Corrections had reincarcerated Hurd “without a
warrant or a detainer despite the fact that the authority to detain
him was statutorily committed to the Federal Bureau of
Prisons.” Id. at 684. “If Hurd had received notice and a hearing
before his re-incarceration, he might have raised an ultra vires
challenge to the District’s authority to detain him.” Id. We
also held that the district court’s substantive due process
analysis was faulty in that it relied on material beyond the
pleadings to determine that Hurd’s incarceration could not have
violated his substantive due process rights. Id. at 684–686.
On remand, following discovery, the district court granted
summary judgment for the District. The court ruled that, even
assuming Hurd could establish a violation of due process,
Supreme Court precedent precluded holding the District liable
for the actions of its employees in this case. Hurd v. District of
Columbia, 427 F. Supp. 3d 21, 37 (D.D.C. 2019) (citing Monell
v. Department of Social Servs. of N.Y., 436 U.S. 658 (1978)).
The court held, in particular, that the District’s policy of
checking inmate information before release could not trigger
Monell liability because that policy did not itself violate the
Constitution. Id. at 30. The court also ruled that Hurd had
7
failed to show that the District had an established custom of
constitutional violations or acted with deliberate indifference
to those violations. Id. at 30–37.
Hurd timely filed a notice of appeal.
II
The district court had jurisdiction to hear this case under
28 U.S.C. § 1331. This court has jurisdiction under 28 U.S.C.
§ 1291.
We review the district court’s decision granting summary
judgment de novo. Thompson v. District of Columbia, 967 F.3d
804, 812 (D.C. Cir. 2020). In doing so, we view the evidence
and reasonable inferences therefrom in the light most favorable
to Hurd, as he was the party opposing summary judgment. Id.at 812–813.
III
A
In Monell, the Supreme Court held that, under 42 U.S.C.
§ 1983, municipalities can be held liable for constitutional
violations committed by their employees only if a plaintiff
shows that the municipality is the “moving force” behind the
constitutional violation, meaning that an “official municipal
policy of some nature caused a constitutional tort[,]” Monell,
436 U.S. at 691, 694. Generally speaking, such an official
policy exists when (1) the municipality adopts a policy that
itself violates the Constitution; (2) the unconstitutional action
was taken by a “policy maker” within the government; (3) the
employees’ unconstitutional actions “are so consistent that they
have become [a] ‘custom’” of the municipality of which the
supervising policymaker must have been aware; or (4) the
8
municipality knew or should have known of a risk of
constitutional violations, but showed “deliberate indifference”
to that risk by failing to act. Baker v. District of Columbia, 326
F.3d 1302, 1306 (D.C. Cir. 2003); see City of St. Louis v.
Praprotnik, 485 U.S. 113, 130 (1988) (plurality opinion).
So to survive summary judgment, Hurd had to show that
the District or one of its official policymakers directly violated
the Constitution, allowed constitutional violations so
widespread that they amounted to a municipal custom, or was
deliberately indifferent to the risk of constitutional violations.
Hurd presents two theories for municipal liability. First,
he argues that there has been a pattern of similar
unconstitutional practices within the District’s Department of
Corrections, such that the District either tacitly adopted the
employees’ conduct as custom or was deliberately indifferent
to the constitutional rights of detainees. Second, Hurd argues
that the District’s official detention policy violated his
constitutional rights. Hurd’s first theory of liability fails, but
the second may succeed depending on as-yet unresolved
factual determinations. 1
1
On appeal, Hurd also argued that the District conceded in its
Answer to the Amended Complaint that “it” kept Hurd in jail in
violation of his constitutional rights. Hurd did not make this
argument before the district court, and he has made no similar
argument at any time in the long history of this case. As a result, the
argument is forfeited. Keepseagle v. Perdue, 856 F.3d 1039, 1053
(D.C. Cir. 2017) (“It is well settled that issues and legal theories not
asserted at the District Court level ordinarily will not be heard on
appeal.”) (quoting District of Columbia v. Air Fla., Inc., 750 F.2d
1077, 1084 (D.C. Cir. 1984)).
9
B
As to his first theory, Hurd argues that his sudden
incarceration without due process was part and parcel of a
“pattern of similar violations” by the District, and also showed
the District’s deliberate indifference to the constitutional rights
of inmates eligible for release. Hurd Br. 43, 46. To make that
showing, Hurd places great weight on two prior class actions—
Bynum v. District of Columbia, 257 F. Supp. 2d 1 (D.D.C.
2002), and Barnes v. District of Columbia, 793 F. Supp. 2d 260(D.D.C. 2011)—and claims that they “established [a] record of
[the District] ignoring the constitutional rights of prisoners held
in the D.C. Jail.” Hurd Br. 43. Hurd adds that the testimony
of one current employee and one former employee of the
District’s Department of Corrections supports his argument
that the “chaos” involved in the District’s prisoner-release
procedures could have caused his incarceration. Hurd Br. 48–
49.
Hurd’s evidence fails to show either that the District had a
relevant custom of unconstitutional actions or that the District
acted with deliberate indifference.
1
To hold a municipality liable based on a pattern of similar
constitutional violations, a plaintiff must show that the
municipality “knowingly ignore[d] a practice that was
consistent enough to constitute custom.” Warren v. District of
Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). The practice must
be “persistent and widespread[.]” Connick v. Thompson, 563
U.S. 51, 61 (2011). And the actions or “series of decisions”
can only confer liability on the municipality if the custom was
so engrained that it amounted to a “standard operating
procedure” of which municipal policymakers must have been
aware. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
10
(1989); see Praprotnik, 485 U.S. at 127, 130 (plurality opinion)
(holding that municipal liability could lie “if a series of
decisions by a subordinate official manifested a ‘custom or
usage’ of which the supervisor must have been aware”).
Hurd did not come forward with summary judgment
evidence demonstrating such a widespread practice or custom
of spontaneous incarceration after a record review by legal
instrument examiners (or by other District employees). Bynum
and Barnes do not do the job for Hurd. Both cases involve
failures by the District that bear little resemblance to the type
of unconstitutional conduct asserted by Hurd. In both Bynum
and Barnes, the plaintiffs challenged the District’s release
procedures for inmates who had concluded their sentences and
alleged that the District’s procedures delayed release and
resulted in additional hours or a day of incarceration beyond
the end of the imposed sentence. See Bynum v. District of
Columbia, 412 F. Supp 2d 73, 77–78 (D.D.C. 2006) (defining
the class of plaintiffs as “[e]ach person * * * who was not
released, or, in the future will not be released by midnight on
the date on which the person is entitled to be released by court
order or the date on which the basis for his or her detention has
otherwise expired”); Barnes, 793 F. Supp. 2d at 269, 271, 274,
278 (due process violated by unreasonably delayed release at
the end of the sentence when, for example, inmates were made
to stay an extra night in jail because of a District rule that
forbade the release of incarcerated people between 10:00 PM
and 7:00 AM).
Those constitutional violations involving the timing of
inmate releases did not put District policymakers on notice of
the type of incarceration problem at issue in Hurd’s case. The
over-detentions in Barnes and Bynum involved the delayed
release of inmates who had fully served their sentences and as
to whom the District asserted no lawful basis for any further
11
detention (e.g., no claimed warrants, detainers, or unserved
sentences). See Barnes, 793 F. Supp. 2d at 276; Bynum v.
District of Columbia, 384 F. Supp. 2d 342, 348 (D.D.C. 2005).
In contrast, Hurd asserts that the District intentionally
incarcerated him for an unserved sentence for different
offenses—his misdemeanor sentences—after he was
mistakenly released from the halfway house four years earlier.
Spontaneous incarceration for what is believed to be an
unserved sentence is factually and legally distinct from an
administratively delayed release at the completion of a
sentence for which no lawful basis for further detention is
claimed. The governmental activity giving rise to the
constitutional claim, which here involved individual record
assessments by District employees that led to incarceration for
totally different crimes, is distinct from the bureaucratic
misadministration of general inmate release protocols in
Bynum and Barnes. More to the point, a District employee
could hardly have looked at the conduct at issue in Bynum and
Barnes as a “standard operating procedure” that caused Hurd’s
incarceration, Jett, 491 U.S. at 737.
Lastly, Hurd offered the testimony of two Department of
Corrections employees to demonstrate the “chaos” that existed
in the Department of Corrections’ recordkeeping procedures.
Specifically, Hurd points to the testimony of Mark Sibert (the
legal instrument examiner who stopped his release) describing
the complexity of the District’s release procedures. J.A. 236.
Hurd also relies upon the testimony of Michelle Waddy, a
former legal instrument examiner, who quit because of “bad
releases” by the Department of Corrections’ record office.
J.A. 466–467.
But none of that testimony demonstrated a pattern of
constitutional violations pertaining to separate incarcerations
based on records of unserved sentences. Waddy, for example,
12
quit her job because she felt the Department of Corrections was
releasing people who ought not be released. And the multi-step
complicated nature of the release procedures about which
Sibert spoke had nothing to do with the District’s deliberate
incarceration of Hurd on a newly discovered unserved
sentence.
2
Hurd also argues that the District was so deliberately
indifferent to problems arising out of the District jail that the
District caused his constitutional violation. That argument fails
as well.
Deliberate indifference exists when “‘the municipality
knew or should have known of the risk of constitutional
violations,’ but did not act.” Warren, 353 F.3d at 39 (quoting
Baker, 326 F.3d at 1307). This standard “simply means that,
[when] faced with actual or constructive knowledge that its
agents will probably violate constitutional rights, the city may
not adopt a policy of inaction.” Id. Actual or constructive
notice may be shown by demonstrating “[a] pattern of similar
constitutional violations[.]” Connick, 563 U.S. at 62; see
Harvey v. District of Columbia, 798 F.3d 1042, 1048, 1053
(D.C. Cir. 2015) (District’s persistent failures to reform its
policies addressing the medical needs of involuntarily
committed mental patients, even after death and serious
injuries had resulted, amounted to deliberate indifference to the
risk of constitutional violations); Smith v. District of Columbia,
413 F.3d 86, 98, 100 (D.C. Cir. 2005) (District found liable for
failure to establish safety policies at its homes for delinquent
youth because it was deliberately indifferent to the obvious
need for “more or different” standards in that setting).
By the same token, deliberate indifference will not be
found if the proffered pattern of conduct implicates different
13
constitutional considerations. For example, in Robinson v.
Pezzat, 818 F.3d 1, 4 (D.C. Cir. 2016), District police officers
shot and killed a plaintiff’s dog while searching her home.
While the District had shot other dogs in the past, those
incidents had occurred in self-defense after the dog attacked the
officer. Id. at 13. Critically, those prior shootings were lawful,
and so could not have put the district on notice of a risk of
unconstitutional shootings. In other words, to establish a
pattern giving rise to deliberate indifference, the other asserted
violations must have materially similar legal implications so as
to put the municipality on notice of the probability of future
constitutional violations.
Hurd failed to make that type of showing. The evidence
he points to involving delayed inmate release practices could
not have put the District on notice of its need to revise its
incarceration policies for newly discovered unserved
sentences.
Hurd nonetheless insists that his case is similar enough,
citing to Daskalea v. District of Columbia, 227 F.3d 433 (D.C.
Cir. 2000). That case is no help to Hurd. In Daskalea, we held
that the District was deliberately indifferent to a pattern of
sexual harassment and assault in its jails. Id. at 439, 441. Hurd
argues that, under Daskalea, different forms of constitutional
violations can combine to establish a custom. Hurd Br. 45–46.
But that overreads Daskalea. In that case, just seven months
before the plaintiff’s sexual abuse in the District jail, the
District had been found liable for similar sexual mistreatment
by its correctional officers. Id. at 441. The only difference
between the two cases was the gender of the prison guards—a
fact of no legal moment. Id. at 442.
In Hurd’s case, by contrast, the character of the
constitutional violations and the asserted policies that led to the
14
constitutional violation are distinct. In Bynum and Barnes, the
delays in release were the result of administratively sluggish
release procedures, rather than the purposeful incarceration
because of the discovery of a distinct unserved sentence. For
Hurd, the problem was not the pace of his release from his
weekend detention for marijuana possession, but that he was
physically reincarcerated to serve a different sentence for
different crimes.
C
Hurd’s last theory of municipal liability fares better. Hurd
alleges that the District has an unconstitutional policy requiring
that an inmate be incarcerated rather than released, without due
process, whenever a District employee discovers a record
indicating that a previous sentence was not fully served.
This theory of municipal liability turns on the existence
and content of the District’s immediate incarceration policy
based on record checks by District employees. Importantly, the
District does not deny the existence of a policy that led to
Hurd’s incarceration. The District admits that it (i) employs
legal instrument examiners; (ii) tasks them with reviewing the
records of inmates prior to their release to identify any basis for
additional incarceration; and (iii) forbids employees to release
the individual if the examiner finds such a record. District
Br. 8–9 (explaining that legal instrument examiners must
review several documents and databases to “certify the
accuracy of every release”).
In its brief to this court, the District agrees that, “[w]hen a
court orders an inmate released in a particular case, officials
must check all records to determine if there is any other charge
or detainer requiring the inmate’s detention, and if so, must
hold him at the D.C. Jail.” District Br. 19. The District also
acknowledged that it has a specific “Program Statement” that
15
requires its legal instrument examiners to review computerized
record databases “to determine if there are any outstanding
warrants or charges preventing release, prior to an inmate’s
release from the custody of the [Department of Corrections].”
J.A. 269. And before the district court, the District admitted
that the legal instrument examiner in Hurd’s case had “no other
options” but to hold Hurd because of the “unexpired judgment
and commitment” from the District of Columbia judge who
originally sentenced Hurd. J.A. 618.
Nevertheless, on appeal, the District has tried to portray
what happened to Hurd as just an isolated mistake by one legal
instrument examiner, arguing that no District policy mandated
that Sibert not release Hurd upon discovery of a record
indicating the misdemeanor sentences were not served. The
District now insists that the written policy statement only
requires that inmates be held if there is an outstanding “charge
or detainer,” and that the policy statement does not address
what to do with an unserved sentence. See District Br. 19;
Transcript of Oral Argument at 32:10–12, Hurd v. District of
Columbia, No. 20-7003 (District Counsel asserting “there’s no
policy here governing what happens when you have someone
who was erroneously released and that has an unserved portion
of their sentence.”).
Because the nature and contours of the alleged policy
present a number of disputed issues of material fact, the district
court erred in granting summary judgment for the District.
First, the District’s materially contradictory descriptions
of its policy and, in particular, its application to unserved
sentences, are unresolved material facts very much disputed by
Hurd and critical to determining the constitutionality of the
District’s policy.
Second, while the District attempts to lay Hurd’s
16
incarceration on the shoulders of an assertedly single wayward
legal instrument examiner who denied Hurd release, that
argument begs the critical factual question of “then what?” The
problem identified by Hurd goes far beyond the initial denial
of his release. Hurd contends that he was incarcerated under
lock and key for just shy of two years. That incarceration, we
can reasonably infer from the record, was the result of a series
of determinations undertaken by the Department of Corrections
itself, not the product of a single decision made by the legal
instrument examiner. For instance, the legal instrument
examiner attests that he sought out his supervisor for advice
regarding whether to release Hurd, and that the supervisor was
the one who ultimately wrote “Denied” on Hurd’s release
authorization form. See J.A. 243–244, 368. Moreover, it was
the District’s Department of Corrections—not the legal
instrument examiner—who subsequently emailed Hurd to
inform him that his previous release had been erroneous.
J.A. 185. And when Hurd challenged his incarceration without
due process, the decision to incarcerate Hurd was defended in
court by the District’s attorneys, not the legal instrument
examiner. See District of Columbia Department of
Correction’s Response Brief at 3, United States v. Hurd, No.
2005 FEL 4391 (D.C. Super. Ct. Dec. 21, 2011). 2 So
regardless of whether the policy of checking the records alone
was lawful, Hurd, 427 F. Supp. 3d at 30, the question posed by
Hurd’s case is how that policy resulted in an incarceration by
the Department of Corrections for almost two years that was
2
To be clear, we are not holding that a municipality’s legal
defense of an action taken by its employee in and of itself necessarily
leads to the conclusion that an official policy exists under
Monell. We reference the District’s legal defense here to underscore
the unresolved factual questions in this case bearing on the nature of
the policy and the District’s attempt to blame Sibert alone for Hurd’s
incarceration.
17
defended in court by the District.
Because there are conflicting facts and testimony in the
record regarding the authority of the Department of
Corrections’ legal instrument examiners to detain inmates
based on record reviews, as well as concerning when and how
the District authorizes formal incarceration based on the
findings of a legal instrument examiner, we reverse the grant
of summary judgment on Hurd’s claim that the District’s
incarceration policy is unconstitutional. On remand, the
relevant nature and operation of the District’s policy must be
factually resolved and its constitutionality evaluated. See e.g.,
Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1278–
1280 (10th Cir. 2009) (holding if the relevant ordinances were
unconstitutional, “whether on their face or as applied” to the
plaintiff, the liability would fall on the city).
IV
For all of those reasons, we affirm the district court’s
judgment that Hurd failed to establish a pattern of
constitutional violations or to demonstrate deliberate
indifference. But we vacate the entry of summary judgment
for the District on the claim of an unconstitutional policy, and
we remand for further proceedings consistent with this opinion.
So ordered.