Brown v. Bryan County, OK

235 F.3d 944, 2000 WL 1839440

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 8, 2000
• Docket: 98-40877
• Status: Published

Opinion

Revised August 8, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-40877 _____________________

JILL BROWN,

Plaintiff-Appellee-Cross-Appellant,

versus

BRYAN COUNTY, OK; ET AL.,

Defendants,

BRYAN COUNTY, OK,

Defendant-Appellant-Cross-Appellee,

STACY BURNS,

Defendant-Cross-Appellee. _________________________________________________________________

Appeals from the United States District Court for the Eastern District of Texas, Sherman

_________________________________________________________________ July 18, 2000

Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal presents a case brought under 42 U.S.C. § 1983 for

injuries resulting from excessive force by an arresting officer,

for which Bryan County, Oklahoma, was found liable by a jury on the

basis of its failure to provide any training to a reserve deputy

who was allowed to make arrests. Stacy Burns, a young, inexperienced reserve sheriff’s deputy, without the benefit of

training or supervision, participated in a car chase and arrest

involving the use of force. Because of the manner in which Burns

effectuated the arrest, the plaintiff, Jill Brown, suffered severe

knee injuries. The question is whether Bryan County can be held

liable under Monell v. New York City Dept. of Social Servs., 436

U.S. 658 (1978), for her injuries because the County failed to

train Burns.

We conclude that the evidence, given the standard of review of

a jury verdict, fairly allowed the jury reasonably to conclude that

Bryan County’s sheriff, admittedly a policymaker, failed to train

Burns in the light of facts demonstrating an obvious need to train

him. We think the jury reasonably concluded that, given notice

of the need to train Burns and that the consequences of the failure

to train him were so obvious, that the County is culpable for its

failure to train him. Furthermore, the evidence allowed a

reasonable inference that the decision not to train Burns was the

“moving force” behind, i.e., directly caused, the injuries suffered

by Brown. Given these conclusions, we hold that Brown established

that Sheriff Moore’s decision not to train Burns constituted a

policy decision for which the County is liable under § 1983.

The case has a significant procedural history. We have issued

two previous opinions, see Brown v. Bryan County, Oklahoma, 53 F.3d

1410 (5th Cir. 1995), withdrawn and superseded by, 67 F.3d 1174

(5th Cir. 1995), and the Supreme Court has considered the case.

2 See Bd. of the County Comm’ns of Bryan County v. Brown, 520 U.S.

387 (1997). When the Supreme Court reversed our decision upholding

liability against the County on the basis of its hiring decision,1

we remanded to the district court for further consideration.

Specifically, the district court had to decide whether liability

against the County could be upheld on the basis of the jury’s

finding that the County had a policy of not training its officers.

117 F.3d 239, 240 (5th Cir. 1997). On remand, the district court

denied the County’s motion for judgment as a matter of law and

upheld the earlier jury verdict in favor of the plaintiff. The

County appeals the district court’s denial of its j.n.o.v. motion.

In a cross-appeal to this second judgment, Brown complains that the

district court struck all compensatory damages for lost income and

lost earning capacity, and reduced to a nominal award damages

awarded for her abstract injuries from the violation of her

constitutional rights.

We affirm the judgment as it relates to the County’s liability

under 42 U.S.C. § 1983. We also affirm the district court’s

judgment with respect to damages.

1 With this vacatur, our previous opinion is no longer the law of the case. See Johnson v. Chicago Bd. of Educ., 457 U.S. 52, 53- 54 (1982) (“Because we have vacated the Court of Appeals’ judgments in this case, the doctrine of the law of the case does not constrain either the District Court or, should an appeal subsequently be taken, the Court of Appeals.”); O’Connor v. Donaldson, 422 U.S. 563, 577 n.12 (1975) (“Of necessity, our decision vacating the judgment of the Court of Appeals deprives that court’s opinion of precedential effect, leaving this Court’s opinion and judgment as the sole law of the case.”). 3 I

The jury awarded Jill Brown extensive damages on her 42 U.S.C.

§ 1983 claim against the County for injuries she sustained because

of the excessive force used by the arresting officer, Reserve

Deputy Burns. The jury found that Bryan County policymaker,

Sheriff B. J. Moore, failed to train Burns in the proper use of

force.2 The jury specifically found that “the training policy of

Bryan County . . . was so inadequate as to amount to deliberate

indifference to the constitutional needs of the plaintiff.” Brown

argues that this failure-to-train policy was the “moving force”

behind her injury. This much is undisputed: Sheriff Moore is a

final policymaker for Bryan County and Burns used excessive force

against Brown in violation of her Fourth Amendment rights to be

free from unreasonable seizures. The question is whether the

County can be held liable for these injuries under § 1983.

II

The underlying events occurred in the early morning hours of

May 12, 1991. Todd Brown was driving a pickup truck from Texas

into Oklahoma, with his wife as a passenger, when he saw a

roadblock ahead. He decided, for reasons the jury could have

accepted as plausible, to turn around. The execution of the 180

degree turn and the speed of the pursuit that followed were hotly

2 The jury also reached similar conclusions about the County’s decision to hire Burns. The jury’s conclusions with respect to Brown’s failure-to-train claim were separate and apart from the hiring conclusions. 4 disputed before the jury. Jill Brown claims to have been asleep

through most of this event. The County deputies eventually stopped

the Browns’ truck on an unlighted country road.

The events leading to Jill Brown’s injuries were also

disputed. As we must, we accept the version of the facts most

favorable to upholding the verdict. Indeed, it is not contested

that Burns’s application of excessive force resulted in a

constitutional injury in violation of Brown’s Fourth Amendment

rights. Burns removed Brown from the truck using, what he claimed,

an “arm bar” technique. Brown testified that Burns used force

despite her best efforts to comply with Burns’s command to her to

exit the truck. Burns says that he needed to use this technique

because she was unresponsive to commands to get out of the

vehicle.3 According to Burns, Brown was bending forward in her

seat after Burns opened the truck door. Burns interpreted this as

a threatening gesture, that is, she may have been reaching for a

gun. Burns, however, admits that Brown did not struggle, did not

strike out, and did not even say anything to him during the course

of the event. In the process of removing Brown, Burns grabbed her,

3 The jury had reason to question Burns’s credibility. On the stand, Burns admitted lying in his deposition and to changing his deposition answer only when threatened with a perjury charge. Burns then proved less than forthcoming in his trial testimony, omitting facts of his arrest record until pressured during cross- examination. Thus, the jury may have been skeptical of his other testimony on critical issues, especially those facts going to any training he might have received, or, for instance, his claim that he took the Minnesota Multiphasic Personality Inventory test. 5 pulled her from the truck, and spun her to the ground. She landed

on the pavement knees first. Either during or immediately after

application of the “arm bar” technique, Burns had at least one knee

in Brown’s back. As a result of the incident, Brown suffered

severe knee injuries.

It is important to note some pertinent background facts

relating to Burns. At the time of the incident, Burns was only

twenty-one years old. He was also inexperienced. He had been on

the force for a matter of weeks. He had no experience as a law

enforcement officer before beginning work as a reserve deputy for

the County. His educational background consisted of a high school

diploma and a few semesters of college. Although purporting to

have majored in criminal justice, Burns testified that he had not

taken any law enforcement courses. His work experience consisted

of general delivery and sales--“kind of a ‘go-fer’”--for two

furniture companies.

His record of having engaged in some inappropriate conduct

before joining the force is undisputed. Within the two-year

period before his hire, Burns had been arrested for assault and

battery, resisting arrest, public drunkenness, driving while

intoxicated, possession of false identification, driving with a

suspended license, and nine moving traffic violations.4 At the

time he was hired, Burns was in violation of the terms of his

4 The more serious of these offenses all arose from one incident involving a fracas while a college student. 6 probation; for that reason, he had an outstanding warrant for his

arrest.5

Finally, his conduct for the short time that he had been on

the force also suggested a problem. Specifically, the jury

reasonably could have concluded that he had an excessive number of

“takedown” arrests, similar to the one in which Jill Brown was

injured.

We also note several relevant background facts with respect to

operation of the sheriff’s department. Here, the evidence, viewed

in the light most favorable to the jury’s verdict, showed the

County to have a policy of providing no training itself for its

regular officers and reserve deputies. The record indicates that

the County’s practice was to hire individuals for full-time

positions who had already received training from Oklahoma’s

Commission on Law Enforcement Education and Training (“CLEET”)

program.6 With respect to reserve deputies of Bryan County, the

5 The evidence here buttresses testimony by the County’s expert that Sheriff Moore disregarded the statutory requirements for hiring of a new officer, such as the mandate that a new hire be subjected to a personality test, undergo fingerprinting so that the FBI and OSBI can perform background checks, and that a form be submitted to CLEET on the date of hire so that the twelve-month training clock starts to run. 6 The CLEET program trains officers and potential officers in all aspects of law enforcement, including patrol tactics, the use of force, public safety, and the like. Students in CLEET are specifically trained in the use of “auto extraction techniques,” such as the arm bar technique allegedly employed by Burns. Our opinion should not be construed to reflect a finding that training through CLEET is somehow inadequate. The parties appear to agree that CLEET training is mandatory for all Oklahoma police officers, 7 record is not entirely clear whether CLEET is mandatory. The

County also made available television training programs through the

Law Enforcement Training Network (“LETN”)(although Sheriff Moore

testified that there is no requirement that the programming

actually be watched), and there remained the possibility that an

officer could receive ad hoc on-the-job training.

Sheriff Moore acknowledged that the County itself does not

train its officers. Confirming this admission, Sheriff Moore

further testified that there were no funds to train personnel.7

Both the plaintiff’s expert and the defendants’ expert corroborated

this lack of training, and it was stressed to the jury during the

plaintiff’s closing argument. Further substantiating Sheriff

Moore’s testimony about the absence of County-provided training,

Officer Morrison, Burns’s partner during the incident, testified

that, although he completed CLEET training before joining the

County’s force (through working in another county), he had received

no training from the County.

full-time or reserve. See, e.g., Okla. Stat. Ann. tit. 70 § 3311(D)(2). 7 We are sympathetic to the budget problems of local governments, especially rural counties. The plaintiff’s expert, however, outlined a range of no-cost training options. The County’s expert testified that CLEET provides training material for local police forces at no cost, will work with local police agencies to develop a training program without charge, and holds free regional training sessions across the State of Oklahoma. According to the evidence, Sheriff Moore elected not to pursue any of these options.

8 The County’s handling of Burns also reflects its lack of a

training program. At his deposition, Burns testified that he had

received no training through Bryan County. Specifically, he

testified that he received “no formal training.” He did not even

receive any “written documentation from Bryan County as to [his]

duties as a reserve officer.”

Burns did testify, however, that he received several months of

training at CLEET, had gone on “ride-alongs” with his grandfather

(a special deputy) and another officer, and watched police training

videos via the LETN network. The jury, however, reasonably could

have rejected these claims. Particularly noteworthy is the strong

evidence, which the jury could reasonably have believed, showing

that Burns never attended CLEET. First, he could not remember any

dates on which he would have attended this program. The evidence

showed that he did not apply for CLEET training until May 6, 1991,

only six days before the Brown incident although he had been

serving as a reserve deputy for four or five weeks. Given that

CLEET classes are held only three days per week, he could not have

attended more than three classes. Other evidence shows, however,

that he attended no classes before the Brown incident. Burns’s

Employment Status Sheet, which must be filed with CLEET within ten

days of hire, is dated June 12, 1991, thirty days after the Brown

incident, or in excess of two months after his hire. Another form

that had to be completed before Burns could be accepted into the

CLEET program was dated May 30, 1991, eighteen days after the Brown

9 incident. With respect to the “ride-alongs” and LETN, the jury

could have discredited, or at least minimized, Burns’s claims in

the light of his often contradicted testimony. Although there is

some evidence that Special Deputy Joe Calclazier, his grandfather,

provided some ad hoc training to Burns, the record suggests that

this training was minimal at best and included no training on

arrest situations.8

Closely connected to its practice of providing no training,

the evidence reasonably supported a conclusion that the County also

failed to provide formal, and very little effective, supervision

for its reserve deputies who were “on the street.” Moore

acknowledged that he gave no explicit instructions to any deputy

about his responsibilities to supervise a reserve deputy. The

officer accompanying Burns during the incident testified that he

received none. The County’s own expert testified that such

supervision of an “inexperienced, untrained” officer is required.

The County’s expert also testified that a reasonable police chief

would have provided these guidelines to his regular deputies and to

reserve deputies.

8 Special Deputy Calclazier testified that he “tried to impart what knowledge [he] had in law enforcement including “ideas” on “[p]ositions, where you stopped automobiles, custody and control. In other words, to watch people, if when you have them stopped to be sure one of them couldn’t hurt you. There’s – there’s ways that you watch, keep an eye on things.” That is the entirety of his statement. 10 III

We review de novo the district court’s ruling on a motion for

judgment as a matter of law. See Travis v. Bd. of Regents of Univ.

of Texas, 122 F.3d 259, 263 (5th Cir. 1997). A motion for judgment

as a matter of law will be granted only if

the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict. . . . On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied . . . .

Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc),

overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107

F.3d 331 (5th Cir. 1997) (en banc). “A motion for judgment as a

matter of law . . . in an action tried by jury is a challenge to

the legal sufficiency of the evidence supporting the jury's

verdict.” Harrington v. Harris, 118 F.3d 359, 367 (5th Cir. 1997).

We consider all of the evidence, drawing all reasonable inferences

and resolving all credibility determinations in the light most

favorable to the non-moving party. See Rhodes v. Guiberson Oil

Tools, 75 F.3d 989, 993 (5th Cir. 1996). Although we review denial

of a motion for judgment as a matter of law, we note that our

standard of review with respect to a jury verdict is especially

deferential. See, e.g., Snyder v. Trepagnier, 142 F.2d 791, 795

(5th Cir. 1998)(“We may overturn a jury verdict only if it is not

supported by substantial evidence, meaning ‘evidence of such 11 quality and weight that reasonable and fair-minded men in the

exercise of impartial judgment might reach different conclusions.’

We accord all reasonable inferences to the nonmovant, and we

reverse only if no reasonable jury would have arrived at the

verdict.”).

IV

It is clear that a municipality’s policy of failing to train

its police officers can give rise to § 1983 liability. “[T]he

failure to provide proper training may fairly be said to represent

a policy for which the city is responsible, and for which the city

may be held liable if it actually causes injury.” City of Canton

v. Harris, 489 U.S. 378, 390 (1989) The difficult legal question,

however, is whether here the County may be liable for the decision

of Sheriff Moore, a policymaker, not to train Burns.

Here, the parties have stipulated to constitutional injury and

the existence of a policymaker. Therefore, to establish whether

the district court correctly judged § 1983 liability appropriately

here, we look for the remaining elements to establish the County’s

liability in this case: (1) a decision by a decisionmaker that

amounts to a policy under Monell and its progeny; (2) a decision so

deliberately indifferent to the rights of the citizens that the

County fairly can be said to be culpable for the injury; and (3)

sufficient causation between the specific policy decision and the

resulting constitutional injury.

12 An official policy, for purposes of § 1983 liability, is “[a]

policy statement, ordinance, regulation or decision that is

officially adopted and promulgated by the municipality’s lawmaking

officers or by an official to whom the lawmakers have delegated

policy-making authority.” Bennett v. City of Slidell, 735 F.2d

861, 862 (5th Cir. 1984) (en banc). Alternatively, official policy

is “[a] persistent, widespread practice of city officials or

employees, which, although not authorized by officially adopted and

promulgated policy, is so common and well settled as to constitute

a custom that fairly represents municipal policy” Id. Finally,

“a final decisionmaker’s adoption of a course of action ‘tailored

to a particular situation and not intended to control decisions in

later situations’ may, in some circumstances, give rise to

municipal liability under § 1983.”). Bryan County, 520 U.S. at 406

(quoting Pembaur v. Cincinnati, 465 U.S. at 481).9 The culpability

element, which may overlap with proof of a policy, requires

evidence that “the municipal action was taken with ‘deliberate

indifference’ as to its known or obvious consequences. A showing

of simple or even heightened negligence will not suffice.” Brown,

520 U.S. at 407 (citation omitted). “‘Deliberate indifference’ is

a stringent standard, requiring proof that a municipal actor

9 That the legal meaning of the term “policy” encompasses a range of municipal behavior can be found in Monell. “[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible.” 436 U.S. at 694 (emphasis added). 13 disregarded a known or obvious consequence of his action.” Id. at

410. The causation element demands that the plaintiff show that

the objectionable municipal policy was the “moving force” behind

the plaintiff’s injury. Id. at 408. See also City of Canton, 489

U.S. at 388 (1989) (same).

A

Based on the way the parties present and argue this case on

appeal, we focus on whether the failure to provide Burns training

as an individual, and not whether the County had a policy of not

training its deputies generally.10 We ask whether there was a

decision by a policymaker that can satisfy the first element of

ultimately imposing Monell liability. In other words, if Monell

liability is to be imposed, it must be done on the grounds of the

single decision by Sheriff Moore to require no training of Burns

before placing him on the street to make arrests.

Given our standard of review, we think that the jury could

have found that the failure to train Burns was a decision that

amounted to a County “policy.” First, Sheriff Moore was a policy

maker who either could require training for Burns or not.

Furthermore, Moore’s awareness of Burns’s youth, inexperience,

10 Although the County had no formal policy of training for its deputies or reserve officers, the record indicates that Bryan County hired trained and experienced deputies. With respect to reserve officers of Bryan County, the record addresses no failure- to-train situations other than Burns’s.

14 personal background, and ongoing arrest activities while with the

department, along with the highly predictable risk of injury from

the improper use of force by an untrained officer, provided

sufficient notice to Moore of the need to train Burns so as to make

his failure to require training a conscious decision.

Our conclusion in this respect stems from the following

evidence. First, the jury reasonably could have attached some

significance to the fact that Burns was kin to Sheriff Moore. This

relationship, along with the fact that the sheriff’s department had

relatively few officers, makes it highly unlikely that Burns was

“lost in the crowd,” and his training simply neglected. Second,

the jury could have reasonably concluded that Moore knew of Burns’s

immature background. This is a point on which all courts,

including the Supreme Court, have overwhelmingly agreed. See Bryan

County, 520 U.S. at 414 (majority opinion) and 427-28 and n.6

(Souter, J., dissenting). The jury could conclude that this

background alerted Sheriff Moore that there was an especially

pressing need to train Burns, especially with respect to when and

how to use force. Third, Sheriff Moore did not comply with the

formal steps necessary to enroll Burns in CLEET training until

after the incident, despite statutory requirements mandating him to

do so. Thus, the jury could infer that Sheriff Moore knew that

Burns was not attending CLEET, and conclude that Sheriff Moore was

aware that Burns was all-the-more in need for some training, yet

15 decided not to require training for him. Fourth, despite

availability of non-CLEET training options (e.g., the television

training network), Sheriff Moore knew that no requirements or

enforcement mechanisms existed to ensure that Burns availed himself

of these alternatives. Fifth, Sheriff Moore had authorized Burns

to engage in a wide latitude of conduct, with restrictions applied

only to his driving and to his ability to carry a gun, knowing he

had no training for the duties he might encounter. Sixth, Moore

knew Burns had already arrested some individuals, i.e., he was

engaging in conduct with the potential for harm and that required

training. Burns testified he was authorized by Moore to make

arrests. He had participated in twelve arrests prior to the Brown

incident. Seventh, Moore knew that there were no formal

departmental policies regarding supervision of junior officers to

assist Burns or to limit his conduct. Moore admitted that he did

not instruct deputies about their responsibilities to supervise a

reserve deputy. In sum, we think on this evidence the jury

reasonably could have concluded that Sheriff Moore made a conscious

decision not to train Burns, yet still allowed him to make arrests.

We then turn to address whether municipal liability for

failure to train can attach from a single decision of a

policymaker. The County insists it cannot.

16 We think it is clear from the Court’s decisions in City of

Canton, 489 U.S. at 380 & 387, and Bryan County, that, under

certain circumstances, § 1983 liability can attach for a single

decision not to train an individual officer even where there has

been no pattern of previous constitutional violations. We

therefore turn to consider those two cases.

(a)

In City of Canton, 489 U.S. 378, a detainee brought a § 1983

suit against the city based on its failure to provide more medical

training for a police station shift commander. The detainee

alleged deprivation of her constitutional rights when the allegedly

undertrained shift commander did not call for necessary medical

care when she showed signs of serious illness. The record

indicated that the city provided some medically-related training

for its officers, including providing first-aid training. 489 U.S.

at 391 n.11. There was no indication that such incidents were a

recurring problem; that is, city liability was asserted on an

apparent single incident of citizen injury. The Court,

nevertheless, did not reject the plaintiff’s failure-to-train claim

as the basis for § 1983, but instead vacated and remanded the case

for further proceedings on the grounds that the jury instructions

fell below the “deliberate indifference” standard of proof required

for liability to attach.

17 In City of Canton, the Supreme Court addressed several issues

that are relevant to our consideration of the appeal before us.

For the first time, the Court made clear that a municipality could

be liable under section 1983 for the implementation of perfectly

lawful and constitutional policies when a city employee applied the

policy in an unconstitutional manner. Thus, the Court concluded

that “there are limited circumstances in which an allegation of a

‘failure to train’ can be the basis for liability under section

1983.” 489 U.S. 387. The basis for liability under such

circumstances, however, is dependent upon the degree of fault

evidenced by the municipality’s action or inaction. In this

respect, the Court concluded that “the inadequacy of police

training may serve as the basis for section 1983 liability only

where the failure to train amounts to deliberate indifference to

the rights of persons with whom the police comes into contact.”

Id. at 388.

City of Canton, we think, spoke rather directly to the facts

in the case before us when it observed that with respect to

specific officers, a need for more or different training can be so

obvious and the inadequacy of training so likely to result in a

violation of constitutional rights that the city can reasonably be

said to have been deliberately indifferent to the need for

training. Id. at 390.

18 Furthermore, the Court noted that the focus of the inquiry in

determining city liability for failure to train must be “on the

adequacy of the training program in relation to the tasks the

particular officers must perform.” Id. at 390. Here, for example,

we must focus on the adequacy of training of Burns in relation to

performing in an arrest situation. And City of Canton admonishes

that we must examine the evidence for deliberate indifference of

the county and not be satisfied with mere negligence in failing to

train.

Finally, we think that City of Canton again spoke to the facts

in this appeal in footnote ten. There it observed that it is a

fact to a moral certainty that police officers are required to

arrest fleeing felons. Thus, when the city arms its officers to

carry out this task, there is thus the obvious need to train

officers in the constitutional limitations on the use of deadly

force. This need for training is so obvious that the failure to

train is deliberate indifference to constitutional rights. This

same observation, we think, may be applied in making arrests with

force.

In sum, for purposes of considering the appeal before us, we

draw the following guidance from City of Canton: The failure to

train may be actionable under section 1983. Liability of the

county depends upon whether it should have been obvious to Sheriff

Moore--or stated differently, whether Sheriff Moore had sufficient

19 notice--that the failure to train Burns in his task of making

arrests was likely to lead to a violation of the Fourth Amendment

rights of those he would encounter. Furthermore, liability

attaches only if there is direct causation between the policy and

the injury. The City of Canton also suggests that a single

incident of an alleged constitutional violation resulting from the

policy may serve as a basis for liability so long as that violation

was an obvious consequence of the policy. Thus, City of Canton is

persuasive that a pattern of misconduct is not required to

establish obviousness or notice to the policymaker of the likely

consequences of his decision. As Justice O’Connor, the author of

Bryan County, observed in her concurring opinion in City of Canton:

Where a section 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of constitutional rights of their citizens, the dictates of Monell are satisfied.

Id. at 396.

With City of Canton establishing some key principles for our

consideration of this appeal, we now turn to Justice O’Connor’s

further refinement and development of those principles–-

particularly as relates to the liability of the county for a single

decision by a policymaker–-in Brown v. Bryan County, 520 U.S. 397.

(b)

As we have earlier noted, in Bryan County, considering the

same facts in this appeal but in a different light, the Supreme

20 Court reversed the judgment to the extent that an inadequate hiring

policy of the county was the basis for liability. The question

presented to the Supreme Court was whether Sheriff Moore’s decision

to hire Burns constituted a policy that, under Monell, could

trigger liability against the County. The Court acknowledged that

earlier decisions of the Court may have indicated that a single

decision attributable to a municipality could hold it liable. It

distinguished those cases, however, because they involved formal

decisions of municipal legislative bodies. Furthermore, in those

cases, fault of the policymaker and causation between the policy

and the injury were obvious. Bryan County, however, unlike other

cases, presented a different kind of a case where the decision by

the county to hire Burns was legal, and it was Burns, the employee,

who used the illegal excessive force, and not the County itself.

Where the County has not directly inflicted an injury, but the

allegation is that the County has nevertheless caused an employee

to do so (e.g., by failing to screen or train employees), “rigorous

standards of culpability and causation must be applied to assure

that the [county] is not held liable solely for the actions of its

employees.” Id. at 1389 or 405.

Addressing a case in which a plaintiff attempted to attach

liability to a single decision of the county’s policymaker, the

Court made clear that, when “seeking to establish [county]

liability on the theory that a facially, lawful [county] action has

21 led an employee to violate a plaintiff’s rights[,] [the plaintiff]

must demonstrate that the [county] action was taken with

‘deliberate indifference’ as to its known or obvious consequences.”

Id. at 407 (citing City of Canton). In reference to hiring cases,

the Court emphasized that to hold the county liable for a single

decision, there must be a high degree of predictability concerning

the consequences of the challenged decision. In other words, a

plaintiff must demonstrate that the decision in question reflects

“deliberate indifference to the risk that a violation of a

particular constitutional or statutory right will follow the

decision.” Id. at 411. Specifically, in order to find the county

liable for a single decision of the policymaker, there must be

evidence that would support a finding that it was obvious that the

offending officer in question was “highly likely to inflict the

particular injury suffered by the plaintiff.” Id. at 412. Thus,

the Court held that to test the link between Sheriff Moore’s hiring

decision and Jill Brown’s injury, the lower courts should have

asked whether Sheriff Moore should have concluded that Burns’s use

of excessive force in making arrests was a plainly obvious

consequence of the sheriff’s hiring decision. Id. at 411. The

Court went on to hold that the evidence in this case was inadequate

to support such a jury finding. In the absence of such a finding,

Sheriff Moore was not deliberately indifferent to the plaintiff’s

Fourth Amendment rights in hiring Burns. Id. at 414.

22 Relative to the judgment we consider today, however, the Bryan

County Court distinguished between liability imposed on the basis

of a hiring decision and liability imposed on the basis of a

county’s failure to train. “[P]redicting the consequence of a

single hiring decision . . . is far more difficult than predicting

what might flow from the failure to train a single law enforcement

officer as to a specific skill necessary to the discharge of his

duties.” 520 U.S. at 410. Acknowledging that City of Canton

condoned municipal liability on the basis a single event of failing

to train an employee, the Court rejected Jill Brown’s attempt to

analogize her hiring claim to failure-to-train cases because of the

greater predictability of the consequences that flow from the

failure to train an employee. The Court noted that the consequence

of failing to train a single law enforcement officer as to a

specific skill necessary to discharge his duties is far more

predictable than is the consequence of a single hiring decision.

Id. at 410.

Thus, although a hiring claim is clearly barred on the basis

of the evidence before us in this appeal, we cannot accept the

county’s argument that Bryan County is a bar to considering whether

the same evidence constitutes a basis for liability against the

county under the plaintiff’s failure to train claim. Indeed, the

Bryan County Court noted that:

In Canton, we did not foreclose the possibility that evidence of a single violation of federal rights,

23 accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential violation for such violation, could trigger municipal liability.

520 U.S. at 409.

We think the Supreme Court’s decision in Bryan County simply

makes clear that the evidence must withstand a vigorous test

whether a reasonable jury could conclude: first, it should have

been obvious to Sheriff Moore that the highly predictable

consequence of not training Burns (and not providing supervision

over his conduct when making an arrest) was that Burns would apply

force in such a way that the Fourth Amendment rights of the

citizens of Bryan County were at risk; and, second, that this

failure to train or to provide supervision was “the moving force”

that had a specific causal connection to the constitutional injury.

In short, the evidence must establish, under the stringent

standards of the Supreme Court’s pronouncements in Bryan County,

unmistakable culpability and clearly connected causation.11

11 The County relies heavily on our decision in Snyder, a case that is distinguishable from the facts presented here. The holding of Snyder rested on grounds that the city’s policymakers did not have sufficient notice of the stress problem to respond effectively. “There was no evidence showing that the city was aware of the supposedly high stress levels in the NOPD or knew that in the absence of a stress management program was likely to endanger the constitutional rights of its citizens.” 142 F.2d at 799. Furthermore, the causal link was absent. “The evidence did not establish even a remote link between the city’s failure to enact a stress management program and Snyder’s injury.” Id. In this appeal, both of these elements are met as we have explained.

24 We thus conclude that a single decision by a policy maker may,

under certain circumstances, constitute a policy for which the

County may be liable. We now turn to consider the requirements of

City of Canton and Bryan County as they apply to this case.

B

Next, we consider the culpability element necessary to

establish the County’s liability. We conclude that the County’s

provision of no training (and no supervision) to Burns, on these

facts, constitutes “deliberate indifference” to the health and

safety of the citizens of Bryan County.12

First, we take it as elemental that police officers need at

least some training to perform their job safely and effectively.

Here, the evidence, including the expert testimony, supported this

proposition. The jury was therefore justified to conclude that it

was obvious to Sheriff Moore that officers without any training

12 The jury instruction stated:

Sheriff B. J. Moore would have acted with deliberate indifference in adopting an otherwise constitutional training policy if in light of the duties assigned to Deputy Sheriff Stacy Burns the need for more or different training was so obvious and the inadequacy so likely to result in violations of constitutional rights, that Sheriff B. J. Moore can be reasonably said to have been deliberately indifferent to the constitutional needs of the Plaintiff.

By implication, the Court approved this instruction in Bryan County. 520 U.S. at 411. That this finding was not a de facto finding of negligence may be inferred from the jury’s additional finding, Interrogatory No. 9, that the County was also negligent in the training of Burns.

25 have a high predictability of injuring citizens, routinely and

unnecessarily, through use of improper techniques, improper force,

and improper judgment calls. Our review of the record further

indicates that the jury reasonably could have concluded that it was

obvious new reserve officers, while being trained, require at least

minimal supervision.13

That the County, through its policymaker, is culpable for

purposes of § 1983 for its choice not to train Burns (and not to

provide proper supervision for him), is illustrated by the facts

giving notice to Sheriff Moore of the need to train and supervise

Burns. Again, based on the family connection between Burns and

Moore, and Moore’s recent investigation of Burns’s record, the jury

reasonably could have inferred Sheriff Moore had full notice of the

full extent of Burns’s exuberant and reckless background. The same

is true with respect to his record of on-the-job conduct in “taking

down” a number of arrest subjects. On the stand, Burns admitted

that, out of his twelve arrests, he had forced three or four

individuals “to the ground,” that is, between twenty-five and

thirty-three percent of the total number of arrests. The

plaintiff’s expert testified this record was excessive. At

13 Indeed, Oklahoma law would appear to require this supervision. See Op. Atty. Gen’l No. 85-46 (1985) (“‘A sheriff or salaried deputy sheriff shall accompany a reserve force deputy sheriff in the performance of all duties assigned to such reserve force deputy sheriff unless such reserve deputy has completed the required one-hundred-twenty-hour basic police course.’”)(quoting Okla. Stat. Ann. tit. 19 § 547(B)).

26 minimum, this record should have provided notice to Sheriff Moore

that Burns was making arrests and using force on a regular basis.

The County’s sheriff force consists of only six regular deputies,

and Burns had been on duty only four to five weeks. The jury could

have reasonably believed that Sheriff Moore was aware of what Burns

was doing in the field and knew training was required for Burns to

perform such tasks. These facts bear on the high predictability of

citizen injury by the untrained Burns and reinforce the jury’s

finding of deliberate indifference in this case.

The same observations apply to the facts showing no

supervision of reserve officers. As we have discussed, the jury

reasonably could have found that Burns remained, essentially,

unsupervised. Sheriff Moore testified he did not authorize Burns

to make arrests, and that he limited Burns’s authority by refusing

to allow him to carry a gun or drive while on duty. Moore also

testified that he intended that Burns be supervised by a full-

fledged deputy. Other testimony contradicted Sheriff Moore’s

claims with respect to proper supervision. First, Sheriff Moore

could point to nothing to prove a policy of supervision except his

assertion that such responsibility was “common knowledge.”

Morrison, the deputy accompanying Burns, testified that he had

never been given any instructions from the Bryan County Sheriff’s

Department as to how he should work with a reserve deputy. When

cross-examined in reference to his testimony that he told Burns

about his limited authority to make arrests, Sheriff Moore could

27 say only that, “[h]e knowed it.” Burns stated that Moore’s only

limitations on his activities were not being allowed to carry a gun

or to drive a police car. Indeed, Burns testified that Sheriff

Moore had authorized him to engage in arrests. Burns testified

that he believed he had authorization from Moore to participate in

the acts involved in the Brown pursuit and arrest, including use of

the arm bar technique. Sheriff Moore did not inform the deputy

accompanying Burns that Burns was limited in his authorization. At

minimum, the policy of not supervising inexperienced officers could

reasonably lead the jury to conclude that the failure to train made

the County even more culpable for the constitutional injuries that

followed.

Thus, we think the jury reasonably could have concluded that

it was obvious to Sheriff Moore that his policy decision not to

train Burns would result in a constitutional deprivation. As a law

enforcement officer, Sheriff Moore knew that all law enforcement

officers, unless expressly restricted, will face situations calling

for the application of force. The jury reasonably could have found

that with Burns there was an even greater magnitude of obviousness

of the need for training and predictability of the consequences

without training–-rendering the degree of the County’s culpability

for the actions of Burns very high indeed. In short, given the

evidence that provided notice to Sheriff Moore of the highly

predictable consequences of not training Burns--i.e., his youth,

his personal record of recklessness and questionable judgment, his

28 inexperience, and his exuberance as a reserve deputy in the short

time he had been on the force, and knowledge that forcible arrests

were inevitable for a law enforcement officer--Sheriff Moore’s

considered policy decision not to require training for Burns can be

said to constitute “deliberate indifference” to the Fourth

Amendment rights of those citizens Burns would encounter.

C

Having concluded that the evidence supports a finding that

Sheriff Moore consciously failed to train Burns, and having

concluded that such a policy decision was the result of deliberate

indifference to the rights secured under the Fourth Amendment, we

now turn to consider whether there is sufficient causation between

the policy decision and the injuries Jill Brown suffered to hold

the County liable for those injuries.

Our review of the record convinces us that the jury had before

it substantial testimony that much of the officers’ conduct, and

Burns’s conduct in particular, during the incident was contrary to

professional standards. According to the expert testimony, Burns

violated basic standards of police conduct, standards that would

have been taught Burns in any basic police training. The jury

could have drawn inferences that the failure to have trained Burns

to follow professional police standards was the moving force

causing Brown’s injuries. Specifically, on the evidence before it,

the jury could have concluded that the County, abetted by its

policy of failing to supervise untrained deputies, allowed Burns to

29 participate in the pursuit and arrest of Brown and that his lack of

training in safety precautions and in arrest situations and in

actually making the arrest, was the “moving force” that caused the

injuries inflicted upon her.

As a preliminary matter, the jury heard expert testimony that

the pursuit across state lines and the method of the stop were

extraordinary and contrary to professional standards when the

officers had no reason to suspect a felony violation. Indeed, the

defendants admitted that they did not suspect any felonious

behavior. Next, the testimony showed that the positioning of the

patrol car vis-á-vis the Browns’ pickup truck after the stop was

highly unusual. Instead of positioning themselves in front of or

behind the Browns’ truck, Officer Morrison pulled alongside of it,

a position labeled by the County’s own expert as improper because

it placed the officers in peril.

There was further expert testimony that Burns’s subsequent

actions demonstrated a lack of knowledge of basic police tactics.

First, without pause and without ascertaining the Browns’ intent,

Burns immediately exited the patrol car and approached the Browns’

vehicle. Instead of moving behind the truck, he crossed in front

of the truck. In doing so, not only did he cross through Officer

Morrison’s line of fire, but during his approach to the passenger

side of the Browns’ truck he exposed himself to any risk the Browns

may have posed. Third, testimony suggested that, despite the lack

of light, Burns may not have used his flashlight to illuminate Ms.

30 Brown. Thus, he could not see with any clarity what she was doing

in the truck cab.14 Officer Morrison, however, testified that the

Browns both raised their hands when so instructed. Fourth, Ms.

Brown testified that Burns exposed himself to further danger by

reaching across her to unbuckle her seat belt. Fifth, the risk

Burns posed to Brown was aggravated by the officers’ perception of

a high-speed chase, when the danger of harm to officer and citizen

as a result of lack of training is especially grave.15 Indeed, the

experts implied that the combination of a potentially dangerous

situation and Burns’s lack of a firearm may have led to his

overreaction if Burns felt at risk, but did not have the proper

tools to protect himself. The jury could reasonably have inferred

that all of these enumerated professional failures on Burns’s part,

errors that were inconsistent with police training, created a

situation that provoked a degree of fear for his safety, which

prompted him to overreact. The jury reasonably could have inferred

14 The two experts concurred that a subject may be slow to exit a vehicle for various reasons, e.g., he or she just woke up, does not speak English, suffers a mental deficiency, or is scared. Even if we viewed the evidence in a light most favorable to Burns, i.e., Brown was slow to exit the vehicle, the jury could have believed that Burns overreacted to the situation. The training deficiency may have had a direct causal relationship to Burns’s actions that evening, according to Brown’s expert. 15 The plaintiff’s expert testified that “the literature and personal experience indicate that the time at which the high-speed pursuit is terminated . . . and the officers exit the vehicles is the critical point at which there is a high likelihood or possibility for excessive use of force. . . . That’s a particular and critical time for supervision and properly trained.” [sic]

31 from the testimony, that with proper training Burns would have

suggested that legitimate reasons existed to explain why an

individual may be slow to exit a vehicle and thus Burns would not

spontaneously have felt compelled to use force on someone who was

offering no resistance. Finally, the absence of training is

reflected in the injury that resulted to Brown, an injury that

stemmed from what the testimony suggested is an extraction

technique involving, properly applied, a minimum use of force.

The jury could have reasonably concluded that, with training, Burns

would have used the “arm bar” technique in a manner so as not to

inflict injury.

The jury could have also concluded that the County’s policy of

not providing proper supervision, a component of the County’s

policy of no training (beyond the possible availability of CLEET),

contributed to the causal force behind the constitutional

deprivation suffered by Jill Brown. The evidence supports a

conclusion that Burns was unsupervised and unarmed throughout the

incident. His decision to join Morrison was his personal decision,

made without supervisory approval. Officer Morrison himself stated

that he was not in charge of Burns that evening. Morrison admits

he gave Burns no explicit instructions before or during the

episode. Burns testified that he received none. Given Burns’s

lack of training and lack of protection in the form of a sidearm,

Ms. Brown’s expert testified that Burns should never have been

permitted to leave the vehicle. Morrison allowed Burns to exit the

32 vehicle, even though Morrison testified that he himself was in

“great fear,” and drew his weapon. Morrison knew that Burns did

not have a gun. If there was a training program, according to the

expert testimony that the jury could have believed, Morrison likely

would have ordered Burns to remain in the patrol car. Finally,

according to Brown’s expert, the discovery record indicates a total

absence of any communication or coordination between Morrison and

Burns during the entire incident. The County’s expert found

fundamental fault in the supervisory relationship during the

incident, a fault that contributes to the consequences of the lack

of training.

In sum, the jury reasonably could have concluded that the

County’s decision not to train Burns, compounded by its policy of

not requiring proper supervision, was the “moving force” behind the

unconstitutional use of excessive force, which caused Brown’s

injury.

D

We sum up. Given our standard of review, we conclude that the

evidence in the record allowed the jury reasonably to find that

Sheriff Moore made a conscious decision not to train Burns, that

because the need to train Burns was obvious, the failure to train

him constituted “deliberate indifference” to the constitutional

rights of the citizens of Bryan County, and that this decision was

the “moving force” behind Brown’s injuries. We therefore conclude

that the decision not to train Burns was a policy choice on which

33 § 1983 liability can lie. Thus, the district court properly denied

the County’s motion for judgment as a matter of law.16

VI

On cross-appeal, Jill Brown challenges the district court’s

decision not to enter judgment in accordance with the jury’s

verdict on lost income and lost earning capacity, as well as for

abstract constitutional injuries she suffered. The jury awarded

Brown $36,000 for lost income and $180,000 for lost earning

capacity, and $100,000 in damages for her constitutional injuries.

In this respect, the County never raised any objection to her

evidence, did not object to the jury’s charge, and did not raise

any objection to those damages in any postjudgment motions.

Despite this lack of objection by the County, the district court,

sua sponte, as it had done in its first entry of judgment, again

entered judgment upon our remand that struck Brown’s economic

damages and reduced her constitutional damages to a nominal $1.00.

Brown asks us to review these alleged errors of the district court

and to restore these damage awards.

Because Brown failed to object to these reductions made by the

district court, we consider the district court’s rulings under a

plain error standard. We have defined “plain error” to mean

“unobjected-to (forfeited) errors that are plain (‘clear’ or

16 Having found that § 1983 liability was properly imposed in this case, we need not reach Brown’s state law claims, which are duplicative of the federal claims we have decided.

34 ‘obvious’) and affect substantial rights. . . . [W]e ‘should

correct a plain forfeited error affecting substantial rights if the

error seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Douglass v. United Servs.

Automobile Assn., 79 F.3d 1415 (5th Cir. 1996) (quoting United

States v. Olano, 507 U.S. 725, 732-37 (1993)); United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1993) (en banc). See also

Johnson v. United States, 520 U.S. 461, 466-67 (1997):

Under [the plain error] test, before an appellate court can correct an error not raised at trial, there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

(Alterations in original.) The Supreme Court has explained these

terms to the extent that (1) “clear” means “the error is clear

under current law,” Olano, 507 U.S. at 734, and that (2) “affects

substantial rights” means that “the error must have been

prejudicial: It must have affected the outcome of the district

court proceedings.” Id.

The district court’s ruling on economic damages for lost

income and earning capacity must be reversed.17 Although Brown

17 As we have indicated, on this second entry of judgment, after our remand, the district court struck, as it had done before, the verdict for damages for lost wages and future income. In our consideration of this question in the first appeal, we cited McCann v. Texas City Refining, Inc., 984 F.2d 667, 672 (5th Cir. 1993),

35 failed to preserve this error by a proper objection, we think the

district court’s ruling constitutes plain error.18

In Morante v. Am. Gen’l Fin. Center, 157 F.3d 1006 (5th Cir.

1998), we said:

It is well-settled in this circuit that a motion for judgment as a matter of law filed post verdict cannot assert a ground that was not included in the motion for judgment as a matter of law made at the close of the evidence. See Allied Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th Cir. 1993) (explaining that under Rule 50, a motion for directed verdict is a prerequisite and ‘virtually jurisdictional’ so that a motion for JNOV cannot assert a ground that was not included in the motion for directed verdict). See also Perricone v. Kansas City S. Ry. Co., 704 F.2d 1376, 1380 (5th Cir. 1983). In Sulmeyer v. Coca Cola Co., 515 F.2d 846 n.17 (5th Cir. 1975), this court explained that “[i]t would be a constitutionally impermissible re-examination of the jury’s verdict for the district court to enter judgment

and recognized that the district court’s sua sponte reduction of the verdict was “constitutionally impermissible,” 67 F.3d at 1182, in that the County never made the proper objection in any preverdict or postverdict motion (that is, an objection on the specific ground that the evidence was insufficient to support this portion of Brown’s damage award). We considered, however, the district court’s reduction under the plain error standard because of Brown’s failure to object to the district court’s post-verdict action. Thus, we reviewed the evidence offered by Brown and concluded that the district court was correct that Brown’s evidence of damages was “lacking.” Without citation to authority, we stated, “the issue is not whether any evidence exists to support the jury verdict. Instead, the issue is whether the district court’s action constituted plain error.” Id. For the reasons stated here, our previous opinion (now vacated by the Supreme Court) holding that the district court did not err, was incorrrect. 18 In its brief, the County makes no substantive argument for the district court’s striking the damage award for lost income and lost earning capacity. It insists only that the prior panel opinion is “the law of the case.” As we have earlier noted, the law of the case does not apply in this case where the Supreme Court has vacated the judgment.

36 n.o.v. on a ground not raised in the motion for directed verdict.”

(Alteration in original.) See also WRIGHT & MILLER, FEDERAL PRACTICE AND

PROCEDURE, § 2537, p. 349 & § 2540, pp. 368-69 (West 1995).

Therefore, there is no doubt that district court’s

“constitutionally impermissible” action, exercised once again on

remand, constitutes an error that was clear, or obvious, under

existing precedent in this circuit. Second, the error

unquestionably affected substantial rights because it affected the

outcome of the proceedings, i.e., it reduced the judgment to Brown

by a substantial amount. Lastly, we must conclude that the error

“seriously affected the fairness, integrity, or public reputation

of judicial proceedings.” We reach this conclusion because the

district court’s sua sponte action constituted an unconstitutional

invasion of those issues that are reserved for the jury’s

consideration in violation of Brown’s Seventh Amendment rights

because Brown introduced some evidence of her injuries justifying

submission of the issue to the jury;19 and, second, the court ruled

19 Our decision here differs with the conclusion we reached on prior consideration because, there, we applied an improper evidentiary test to this reduction. This case presents the rare instance of a district court’s sua sponte action without a defendant’s sufficiency of the evidence motion. Usually, plain error is applied when the defendant on appeal argues that, despite its failure to object below, there is insufficient evidence to support the judgment. The question the appellate court must ask is whether the plaintiff presented any evidence to support the verdict. See Sharp v. City of Houston, 164 F.3d 923, 932 (5th Cir. 1999) (“Under the plain-error review, the inquiry is whether the plaintiff has presented any evidence in support of his claim.”); Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir. 1996);

37 based on an unargued, uncontested view of the evidence on which

“the nonmovant has [not] had the opportunity to cure any

insufficiencies.” See Purcell v. Seguin State Bank and Trust Co.,

999 F.2d 950, 956 (5th Cir. 1993) (explaining purposes of Rule 50

motion). Thus, under the authority cited above, we hold that the

district court committed plain error when it reduced the jury’s

verdict for lost wages/earning capacity damages in the absence of

a proper and timely motion from the defendant.

We now consider the district court’s reduction of the $100,000

the jury awarded to Brown as damages for deprivation of her

constitutional right not to be subjected to excessive force

($50,000) and for her loss of liberty ($50,000). We have reviewed

the district court’s Judgment, March 31, 1998 Order, and supporting

June 22, 1998 Memorandum Opinion and Order. We find that the

decision to strike the $100,000 damage award for violation of

Brown’s constitutional rights does not constitute plain error. The

only error the district court made in this respect was submitting

this issue to the jury.

McCann, 984 F.2d at 673 (“[T]he question before this court is not whether there was substantial evidence to support the jury verdict, but whether there was any evidence to support the jury verdict.”). See also Childress & Davis, Federal Standards of Review, Vol. I, 3d ed. (LEXIS 1999), § 3.15, pp. 3-115-3-119. The prior panel, however, engaged in a weighing of the evidence, upholding that the district court’s conclusion that the evidence offered by Brown was “lacking” in sufficiency. That was an incorrect approach.

38 Under clearly established jurisprudence, “the abstract value

of a constitutional right may not form the basis for § 1983

damages.” Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299,

308 (1986). See also id. at 306-06; Hay v. City of Irving, Texas,

893 F.2d 796, 800 (5th Cir. 1990). Therefore, this damage question

should never have been submitted to the jury and no argument can be

made that the district court infringed upon Brown’s Seventh

Amendment rights by taking the matter from the jury post-verdict.

As there was no basis for the award, this verdict represents a

windfall to which Brown is not entitled. Therefore, this reduction

does not affect the substantial rights of Brown. Consequently, the

integrity of the proceedings was not affected by the district

court’s action; indeed, to allow it to stand would be to affect

seriously the integrity of the judicial proceeding. Thus, we

affirm the judgment in this respect.

We therefore will reinstate the reductions in the jury verdict

only with respect to Brown’s lost income/earning capacity damages.

VII

The County also claims that the district court erred by

failing to offset Brown’s recovery by $5,001.75 that the Supreme

Court awarded to the County as costs. Brown does not respond to

this argument in her brief. Those costs may be offset against

Brown’s recovery.

VIII

39 In sum, we hold that on the facts of this case, the district

court properly rejected the County’s motion for judgment as a

matter of law on Brown’s § 1983 failure-to-train claim. We affirm

the district court’s elimination of Brown’s award for those

intangible damages she suffered because of the County’s violation

of her constitutional rights. We reverse, however, the district

court’s decision to cut Brown’s damages for lost income and earning

capacity. Otherwise we affirm the award of all other sums to Brown

as damages and fees.20 We offset Brown’s award by any costs awarded

to the County by the Supreme Court.

IX

For the reasons we have stated in this opinion, the judgment

of the district court is affirmed as modified in accordance with

this opinion and

REMANDED to the district court for entry of judgment consistent with this opinion

ENDRECORD

20 The jury also awarded Brown damages for past physical pain ($5000), future physical pain ($10,000), past mental pain and anguish ($1,000), future mental pain and anguish ($1,000), past physical impairment ($75,000), future physical impairment ($300,000), past disfigurement ($1,000), future disfigurement ($2,000), damage to reputation ($500), past medical expenses ($65,802), and future medical expenses ($90,000). The jury also awarded Brown $20,000 in punitive damages, to be recovered from Stacy Burns. Finally, the jury awarded Brown $77,500 in attorneys’ fees. The district court ordered all sums to be subject to post prejudgment and post-judgment interest.

40 DeMOSS, Circuit Judge, dissenting:

This appeal is the latest in a series of appeals which deal

with the same factual and legal claims between the same parties.

For ease of reference, these are defined as follows:

(1) Brown v. Bryan County, 53 F.3d 1410 (5th Cir. 1995) (hereinafter “Brown I”)

(2) Brown v. Bryan County, 67 F.3d 1174 (5th Cir. 1995) (hereinafter “Brown II”)

(3) Board of County Comm’rs of Bryan County v. Brown, 117 S. Ct. 1382 (1997) (hereinafter referred to as the Supreme Court decision in Brown)

(4) Brown v. Bryan County, No. 98-40877 (5th Cir., argued October 6, 1999) (hereinafter Brown III or the current appeal).

My review of the history of this long-term, complicated, and

at times acrimonious litigation has persuaded me that our Court

has made some errors in processing these appeals which deserve

recognition and correction as part of the resolution of the

current pending appeal.

My concerns relate to the confusing and anomalous treatment

of the claims of liability against Bryan County (the "County")

under § 1983 which is reflected in these various opinions. Here

are the specifics.

In Brown I, the original panel of this Court discussed the

liability of Bryan County in Part VI of that opinion. In Part

VI(A), a majority of the panel determined that the jury findings

supported a determination of liability on the part of Bryan

41 County because Sheriff Moore’s decision to hire Burns without

proper investigation amounted to deliberate indifference to the

public welfare. In Part VI(B), the original panel unanimously

determined that no recovery against Bryan County could be based

on the theory of failure to properly train Burns after hiring

because our Circuit’s clear precedents require more than a single

instance of injury or an isolated case of one poorly trained

employee for municipal liability to attach. Judge Emilio Garza

dissented on the basis that liability against Bryan County could

not be sustained because one inadequate background investigation,

even by a municipal policy maker, is not enough to constitute

"the unconstitutional municipal policy" contemplated by Monell.

Following issuance of this opinion on June 2, 1995, another

judge of this Court held the mandate and initiated correspondence

with the original panel because the portion of Brown I holding

the County liable was in conflict with a prior decision of this

Circuit in Stokes v. Bullins, 844 F.2d 269 (5th Cir. 1988).

Also, Bryan County filed a motion for panel rehearing and a

suggestion for en banc reconsideration as to the portion of Brown

I which held the County liable for an inadequate hiring policy.

Mrs. Brown did not file any motion for panel rehearing or en banc

reconsideration.

42 Considerable exchange of memoranda finally resulted in a

decision by the original panel in October 1995 to rewrite its

opinion and substitute a new opinion, Brown II, for Brown I.

Apparently, the purpose of this rewrite was to minimize the "en

banc worthiness" of the new decision by making clear that the

affirmance of the County’s liability was based on the particular

factual determinations by the jury relating to the inadequacies

of the investigation and the inappropriateness of Burns' prior

"criminal" record. In accomplishing the rewrite, however, all of

Part VI(B), which determined that the County was not liable on

any failure-to-train theory, was omitted.

I have not found any indication in the record to suggest

that Part VI(B) was intentionally omitted in the redrafting which

produced Brown II. I have great difficulty in understanding why

Part VI(B) was omitted and have concluded that it must simply

have been an inadvertent omission. Clearly, the text of Part

VI(B) of Brown I was a completely accurate summary of our

Circuit’s law on failure-to-train cases; and so far as I can

tell, no party nor any judge on our Court raised any question as

to the validity or accuracy of that text. If Part VI(B) had been

left in Brown II, Mrs. Brown would have had an occasion to file a

motion for panel rehearing or en banc reconsideration as to that

issue. And failing relief by rehearing or en banc

reconsideration, Mrs. Brown would have had an opportunity to

apply for a writ of certiorari to the Supreme Court as to the

43 correctness of the decision in Part VI(B) regarding the County

not being liable for failure-to-train.

I note that in both Brown I and Brown II there is a short

paragraph following the title "DISCUSSION" which includes the

following sentence in both opinions: "For efficiency’s sake, we

will address only those points that we believe merit review."

Obviously, in Brown I the panel felt the discussion in Part VI(B)

merited review because Part VI(B) dealt with a theory of recovery

which was actually tried before the jury, and as to which Bryan

County preserved error in the district court, and the topic was

fully briefed on appeal. Why the original panel determined that

Part VI(B) no longer merited review in the redrafting which

produced Brown II is truly a puzzle to me.21

After issuance of Brown II, our Court voted not to give en

banc reconsideration to this appeal, and Bryan County applied for

a writ of certiorari to the Supreme Court which was granted. In

its opinion, the Supreme Court noted:

21 It occurs to me that the original panel majority may have assumed that (i) en banc reconsideration of its affirmance of County liability on the improper hiring theory was so unlikely and (ii) a writ of certiorari from the Supreme Court on this same issue was likewise so unlikely that discussing an alternative theory of liability (i.e. failure-to-train) was simply not worth the paper it would be written on. If so, this case is a clear demonstration of the risks of assuming what a higher court will do. Surprise, surprise, the Supreme Court not only granted certiorari but reversed the district court and our Court by holding that the jury instructions on improper hiring were not adequate and that the evidence was not sufficient to support the necessary findings -- the very aspects which the panel majority thought would insulate this case from further review.

44 The [Fifth Circuit] court held, among other things, that Bryan County was properly found liable under § 1983 based on Sheriff Moore’s decision to hire Burns. The court addressed only those points that it thought merited review; it did not address the jury’s determination of county liability based on inadequate training of Burns, nor do we. We granted certiorari to decide whether the County was properly held liable for respondent’s injuries based on Sheriff Moore’s single decision to hire Burns. We now reverse.

Brown, 117 S. Ct. at 1386-87 (citations omitted) (emphasis added). The Supreme Court vacated the judgment of the Fifth

Circuit and remanded the case "for further proceedings consistent

with this opinion." Id. at 1394. When this appeal arrived back

in our Court, the original panel promptly remanded it to the

district court, and in so doing, I think the original panel

clearly erred. In my view, upon remand from the Supreme Court,

the original panel should have taken two steps:

a. First of all, the panel should have determined the

portions of Brown II which had not been reversed by the Supreme

Court. Clearly, the portions of Brown II which discuss the

liability of Reserve Deputy Burns individually and the quantum of

damages had not been changed in any way by the Supreme Court

decision, and an order affirming the district court’s

determination of liability against Deputy Burns individually and

the quantum of damages resulting therefrom could have and should

have been issued to effect a final disposition thereof; and

b. The original panel should have determined the question

of whether or not the County could be liable on a theory of

45 failure-to-train Deputy Burns. As indicated earlier, the theory

of failure-to-train had been actually tried to the jury, error in

regard thereto had been preserved by the County, the theory had

been briefed and argued on appeal, and the original panel had in

fact decided that our Circuit law would not permit such a

recovery in Part VI(B) of Brown I. In my view, our Court has a

clear duty to decide all issues raised on appeal; and deciding

not to decide (or inadvertently failing to decide) is just as big

an error as deciding contrary to existing case law precedent in

our Circuit.

Given the settled status of our Fifth Circuit case law on

the failure-to-train theory, I think the original panel clearly

should have issued a supplemental opinion holding that recovery

against Bryan County could not be made on the failure-to-train

theory; and in view of the Supreme Court decision holding that

Bryan County could not be held liable on the improper hiring

theory, the original panel should have instructed the district

court to enter a judgment that Mrs. Burns take nothing from Bryan

County under § 1983. Obviously, that supplemental holding could

and probably would have been the subject of an application for

writ of certiorari by Mrs. Brown to the Supreme Court. If

certiorari had then been granted, the Supreme Court would have

then had the occasion to expressly state what distinctions, if

any, there may be between the improper hiring theory and the

failure-to-train theory insofar as County liability is concerned.

46 Instead of taking either of the steps suggested in the

preceding subparagraphs, the original panel simply entered an

order remanding this appeal to the district court "for

consideration in conformity with the opinion of the Supreme

Court." Brown v. Bryan County, 117 F.3d 239, 240 (5th Cir.

1997). When the case got back to the district court, each side

promptly filed motions for judgment as a matter of law. No

further evidence or testimony was presented by either party. The

district court, therefore, had no evidence before it which it did

not have at the time of the original trial four years earlier.

The only new thing which the district court had after remand

which it didn’t have at the time of the original trial was the

Supreme Court decision in Brown itself and the rather

disingenuous arguments made by counsel for Mrs. Brown that this

Supreme Court decision cast a whole new light on the question of

municipal liability in failure-to-train cases. This argument was

made in the face of the express statement by the Supreme Court

that it was NOT addressing a failure-to-train claim in its

opinion. When the Supreme Court says it is not addressing a

claim in its opinion, I think we should take them at face value

and not allow extrapolations of dicta in that opinion to have any

effect on the status of our Circuit’s settled law -- i.e., in

this case that failure-to-train claims require a pattern or

history of other incidents to support deliberate indifference on

the part of the municipality.

47 Not surprisingly, the district court again found that the

evidence was sufficient to support the jury’s finding of

liability on the failure-to-train theory. I am disturbed by the

facility with which the district court simply ignored what was

then the most recent decision of our Circuit reaffirming and

reapplying the rule that a failure-to-train claim had to be based

on more than one instance. See, Snyder v. Trepagnier, 142 F.3d

791 (5th Cir. 1998), cert. granted, 119 S. Ct. 863, cert.

dismissed, 119 S. Ct. 1493 (1999). As a result, the more or less

automatic and unstructured remand by the original panel to the

district court proved to be not only a terrible waste of judicial

resources and duplication of effort, but also provided Mrs. Brown

with a dramatic "second bite at the apple" on her liability

claims by permitting a reassessment of the failure-to-train

theory by the same district judge whose holding on that same

issue was determined to be inconsistent with Fifth Circuit

precedent by Part VI(B) of Brown I.

Bottom line, it seems to me that the best way to extricate

this Court from this convoluted mess is simply to "fess up" that

the original panel inadvertently omitted Part VI(B) in the

redrafting between Brown I and Brown II and that upon remand from

the Supreme Court, the original panel inappropriately remanded to

the district court without first deciding the issue of liability

on the failure-to-train theory which was appropriately before it.

The solution then is for this present panel to do now what the

48 original panel should have done upon remand from the Supreme

Court, i.e., issue a supplemental decision which (i) reaffirms

the decision of the district court assessing liability against

Deputy Burns individually and fixing damages as determined by the

district court; (ii) reverses the decision of the district court

as to liability on the part of Bryan County on the theory of

failure-to-train; (iii) recognizes that the Supreme Court has

determined that liability upon Bryan County for improper hiring

is not supportable factually or legally; and (iv) directs the

district court to enter judgment that Mrs. Brown take nothing

from Bryan County under her claims for deprivation of

constitutional rights under § 1983.

Obviously, the foregoing analysis has fallen on the deaf

ears of the current panel majority. In their haste to find a

"deep pocket" from which Mrs. Burns may recover the compensation

determined by the district court, the current panel majority

articulates a variety of new theories with which I must,

respectfully, disagree. First and foremost, the current panel

majority overstates the impact of the Supreme Court decision in

Brown on the decision of this Court in Brown II. Second, the

current panel majority ignores the clear line of Fifth Circuit

precedent which establishes the criteria necessary to establish

municipal liability for failure-to-train. Finally, the current

panel majority misapplies dicta in the Supreme Court decision on

49 the issue of hiring as being controlling on the issue of failure-

to-train.

Does the Supreme Court Decision in Brown Vacate the Entirety of the Fifth Circuit Decision in Brown II?

After our circuit issued its opinion in Brown II, the only

party to apply for writ of certiorari to the Supreme Court was

Bryan County which asked for a review of the holding in Brown II

that it was liable under § 1983 for inadequate hiring decisions.

Deputy Burns did not ask for a writ of certiorari on the portion

of Brown II which affirmed his liability under the jury verdict

for wrongful arrest and use of excessive force. Mrs. Burns did

not apply for a writ of certiorari on the portion of Brown II

which affirmed the district court's determination of the quantum

of damages. The Supreme Court granted certiorari as to the writ

requested by Bryan County and determined that the district court

and our court had erred in finding that Bryan County was liable

under Section 1983 for "Sheriff Moore's single decision to hire

Brown." Accordingly, the Supreme Court decision in Brown

concludes with the following statement:

We therefore vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.

117 S. Ct. at 1394.

The current panel majority in this appeal concludes, as

indicated by footnotes 1 and 17 of the majority opinion, that

50 this ending direction from the Supreme Court is a complete

vacatur of the entirety of this Court's decision in Brown II and

that, consequently, Brown II no longer constitutes "the law of

the case" in any respect. In support of this conclusion, this

current majority relies upon quotations from two Supreme Court

cases in footnote 1. Standing alone, these quotations seem to

support the majority's position, but when read in the context of

the cases from which they are taken, it is obvious that these two

quotations were part of larger directives being issued by the

Supreme Court in those cases, which required the remanding of

those cases to the lower courts for consideration of events that

had occurred while those particular cases were on appeal. In

effect, the current panel majority attempts to draw a general

rule out of specific directions issued in cases which are totally

different from Brown from a procedural standpoint.

It seems axiomatic to me that since neither Deputy Burns nor

Mrs. Brown attempted to appeal from the decisions in Brown II,

relating to Deputy Burn's liability and the quantum of damages,

those parts of Brown II would clearly become final and constitute

law of the case, if not res judicata, as to those matters.

Consequently, our original panel erred when it decided to remand

this case to the district court without specifying that such

matters were not to be reopened. In point of fact, the district

court seems to have assumed that these matters were law of the

51 case, for in issuing its new opinion on remand, the district

court spoke only as to the liability of Bryan County, and it

ended up determining the same quantum of damages that it had

determined at the time of the original trial. Consequently, in

my view, Mrs. Brown had no basis whatsoever for seeking to reopen

the damage determination with the district court, and the current

majority errs in deciding to permit reconsideration of that

damage determination by the district court and in awarding Mrs.

Brown a recovery in a quantum greater than that which she

declined to appeal from in Brown II.

In issuing its directive at the end of the majority opinion

in Brown, the Supreme Court said absolutely nothing about

remanding the case to the district court for "reconsideration by

the district court" of any of the issues on appeal in Brown II.

The Supreme Court decision dealt solely with the single issue as

to which certiorari had been granted, and nothing in the Supreme

Court decision in Brown can be deemed a mandate to reopen either

the quantum of damage issue or the question of the liability of

Deputy Burns.

What Effect Does the Supreme Court Decision in Brown have on the Law Determining the County's Liability under Section 1983 for Failure-to-train?

As indicated earlier in this dissent, the Supreme Court

expressly indicated that it was not addressing the theory of

County liability based on inadequate training of Deputy Burns

52 because that theory had not been addressed by our Court in Brown

II. Despite this express disclaimer, Mrs. Brown and the majority

both urge a reading of the Supreme Court decision in Brown that

would clearly authorize a holding of County liability under §

1983 based upon the jury findings and instructions given on the

failure-to-train theory in this case. When the Supreme Court

expressly says it is not addressing an issue in a case, I think

we should be very cautious about drawing inferences and

implications on an issue from the text of its opinion. But that

is precisely what the majority does. In footnote 12, the

majority states that "by implication," the Supreme Court approved

the jury instructions given to the jury in this case on

inadequate training and cites a particular page in the Supreme

Court opinion as authority for this statement. There is

absolutely nothing, however, on that page of the Supreme Court

opinion in Brown which addresses the jury instruction on

"inadequate training." Rather, what is discussed on that page is

the jury instruction on the improper hiring theory, which the

Supreme Court recognized was "analogous to that reserved in City

of Canton," but which the Supreme Court determined on the next

page was inadequate and insufficient to properly present the

issue of inadequate screening before hiring.

Specifically, the Supreme Court said that the district

court's instruction on inadequate screening before hiring was

53 defective because: (1) it did not specify that the applicant

being considered "was highly likely to inflict the particular

injury suffered by the plaintiff"; and (2) because it failed to

require a finding that Burn's background "made his use of

excessive force in making an arrest a plainly obvious consequence

of the hiring decision." Brown 117 S. Ct. at 1390.

It will be apparent to anyone reading the Supreme Court

decision in Brown that the Court drew certain distinctions

between § 1983 liability based upon inadequate screening before

hiring and § 1983 liability based upon failure-to-train. It will

also be apparent to anyone reading the Supreme Court decision in

Brown that the Court concluded that the proof requirements and

the jury instruction requirements on inadequate screening before

hiring claims should be more stringent than those applicable to

failure-to-train claims. Those differing requirements are

necessary to:

(1) Avoid the "danger that a municipality will be held liable for an injury not directly caused by a deliberate action attributable to the municipality itself"; and

(2) In order to "prevent municipal liability for a hiring decision from collapsing into respondeat superior liability."

Brown, 117 S. Ct. at 1391.

54 But the simple fact that the Supreme Court declined to

accept Mrs. Brown's "proffered analogy" between failure-to-train

and inadequate screening cases says very little, if anything,

about whether the Supreme Court intended to erect a new or

different set of criteria for analyzing a failure-to-train

theory.

In short, the Supreme Court decision in Brown on the

inadequate screening claim, says absolutely nothing about changes

in the criteria for analyzing a failure-to-train claim.

Impact of Supreme Court Decision In Brown on Fifth Circuit Precedent Defining Criteria for Failure-to-train

At the time the original panel issued Brown I in this case,

this Circuit had a clear and consistent precedent that in order

to recover against a municipality under § 1983 on a failure-to-

train claim, the plaintiff must establish something more than a

single instance of injury or an isolated case of one poorly

trained employee. See, e.g., Languirand v. Hayden, 717 F.2d 220

(5th Cir. 1983) (holding that in failure-to-train cases, the

plaintiff must establish a pattern of similar incidents in which

citizens were injured or endangered by intentional or negligent

police misconduct, or that serious incompetence or misbehavior

was general or widespread throughout the police force); Rodriguez

v. Avita, 871 F.2d 552 (5th Cir. 1989) (discussing Languirand and

concluding that municipal liability could not be derived from a

55 single incident of improvident discharge of a firearm by an

officer); and Fraire v. City of Arlington, 957 F.2d 1268, 1278

(5th Cir.) (holding that, in failure-to-train cases "isolated

violations are not the persistent, often repeated constant

violations that constitute custom and policy"), cert. denied, 113

S. Ct. 462 (1992). The original panel relied on this precedent

in holding in Part VI(B) of Brown I that Mrs. Brown could not

recover against Bryan County for failure-to-train. Our Circuit’s

decision in Languirand was decided before the Supreme Court

decision in City of Canton, but it was referred to favorably by

the Supreme Court in City of Canton as one of the Circuit cases

that establishes the "deliberate indifference" standard for

municipal conduct. Rodriguez and Fraire were decided after City

of Canton. In writing Part VI(B) of Brown I, the original panel

expressly referenced the Supreme Court decision in City of Canton

and expressly utilized the following quotation from that case:

That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program.... Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. City of Canton, 109 S. Ct. at 1206.

As indicated earlier in this dissent, I recognize that Part

VI(B) of Brown I was inadvertently omitted in the rewrite that

produced Brown II. As indicated earlier in this dissent, I

56 recognize that Part VI(B) of Brown I, in which a majority of this

Court held that the same evidence before the Court in this appeal

failed to establish the County’s liability for failure-to-train,

was inadvertently omitted in the rewrite that produced Brown II.

But our Circuit has traditionally followed a rule of orderliness

that a subsequent panel may not reach a decision inconsistent

with the decision of a prior panel unless there has been an en

banc decision of our Court or a Supreme Court decision to the

contrary. See, e.g., Grabowski v. Jackson County Pub. Defenders

Office, 47 F.3d 1386, 1398-1403 (5th Cir.) (Smith, J., concurring

in part and dissenting in part), vacated for reh’g en banc, id.

at 1403, district court judgment aff’d, 79 F.3d 478 (5th Cir.

1996) (en banc); see also Arnold v. U.S. Dep’t of Interior, No.

99-10753, 2000 WL 679785, at *5 (5th Cir. May 25, 2000); Teague

v. City of Flower Mound, 179 F.3d 377 (5th Cir. 1999); Lowrey v.

Texas A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).

Likewise, our Circuit also has a policy that requires a

subsequent panel to give deference under the law of the case

doctrine to a holding of a prior panel in the same case. See,

e.g., Beets v. Johnson, 180 F.3d 190 (5th Cir. 1999) (applying

law of the case doctrine to decline reconsideration of an issue

decided in a previous appeal), cert. denied, 120 S. Ct. 946

(2000); Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1094 (5th

Cir. 1996); United States v. Singleton, 49 F.3d 129, 134 (5th

57 Cir.); Griffin v. Box, 956 F.2d 89, 93 (5th Cir. 1992). The law

of the case doctrine should foreclose reconsideration of the

quantum of the damages in this case and reconsideration of the

issue of municipal liability under § 1983 for failure-to-train in

this case. Law of the case is a prudential doctrine -- a

principle that "issues once decided in a case that recur in later

stages of the same case are not to be redetermined." See Jack H.

Freidenthal, Civil Procedure § 14.1 (2d ed. 1993) (citing Allen

D. Vestle, Law of the Case: Single Suit Preclusion, 1967 Utah L.

Rev. 1. See generally Lincoln Nat’l Life Ins. Co. v. Roost, 306

F.2d 110 (5th Cir. 1962) (en banc). "As most commonly defined,

the [law of the case] doctrine posits that when a court decides

upon a rule of law, that decision should continue to govern the

same issues in subsequent stages in the same case." Arizona v.

California, 103 S. Ct. 1382, 1391 (1983).

Admittedly, both the rule of orderliness and the law of the

case doctrine are prudential in nature and do not actually

subtract from a court’s power to decide. But despite the

prudential nature of these rules, this Court has consistently

adhered to them. Moreover, while the circumstances in this case

which resulted in Part VI(B) of Brown I being dropped out of the

original panel's decision in Brown II are somewhat peculiar and

anomalous, I think the policies behind these rules justify their

application in this case. First of all, the record in this case

58 is identical in all material respects to the record presented to

the panel in Brown I and Brown II, which the prior panel found

insufficient to establish the County’s liability for failure-to-

train. Second, the procedural posture of this case is in all

material respects identical. While the case has been appealed to

the Supreme Court and remanded to the district court, the

district court merely entered judgment as a matter of law on the

basis of the jury findings without the benefit of any new

evidence. Our task, therefore, remains the same as that

presented in both Brown I and Brown II, which is to measure the

adequacy of the trial record under the controlling legal

standards. In this vein, the original panel’s determination that

the record simply does not measure up may not be binding or

mandatory, but I see no basis for saying that the prior work by a

three-member panel of this Court in a prior appeal involving the

same issues, the same parties, the same record, and the same

procedural posture is not entitled to any deference whatsoever.

Indeed, such an approach is inconsistent with the prudential

rules by which we govern ourselves as a collegiate court.

Unfortunately the current panel majority simply ignores both

the existing Fifth Circuit precedent and our prudential rule of

orderliness. In so doing, I think they err grievously. They

obviously do not cite any en banc decision of this Circuit which

changed or overruled the precedent established by Languirand,

59 Rodriguez, and Fraire. Likewise, the current panel majority does

not cite a Supreme Court case which holds that the requirement of

our Circuit precedent of a pattern of prior incidents being

necessary to establish deliberate indifference on the part of a

municipality under § 1983 is no longer the law. Instead, the

current panel majority purports to rely upon various portions of

City of Canton, particularly footnote 10 of that opinion. But

each and every one of those portions of the City of Canton

opinion which the panel majority now relies on to support its

holding were available for reading and interpretation by the

original panel in this case, by the panel in Fraire, and by the

panel in Rodriguez.

In short, three panels of this Court have read the very same

Supreme Court language and reached the conclusion that municipal

liability under § 1983 should not be fixed on the basis of a

single incident which is attributable to failure-to-train. The

current panel majority, however, reached the opposite conclusion.

The panel's reference to footnote 10 is particularly troublesome.

In this case, Deputy Burns was not authorized to carry a weapon,

and he did not, in fact, carry or use a weapon on the occasion of

the arrest involved in this case. There is no testimony in this

case which would show that use of the arm-bar take down technique

constitutes the use of deadly force. Consequently, this case

does not come anywhere near involving the example cited by the

60 Supreme Court in City of Canton as a need for training which is

so obvious as to constitute deliberate indifference on the part

of the municipality without any history of prior circumstances.

What Impact Does the Supreme Court Decision in Brown Have on The Supreme Court Decision in City of Canton?

Both the current panel majority and Mrs. Brown's brief take

the position that the Supreme Court decision in Brown should be

read as elaborating upon and extending the holding in City of

Canton that an inadequate training claim could be the basis for

1983 liability in limited circumstances. I suggest, however,

that the Supreme Court in Brown was actually limiting and

restricting the language of City of Canton. Read the following

quotation in which Justice O'Connor, speaking for the majority in

Brown said:

We spoke, however, of a deficient training "program," necessarily intended to apply over time to multiple employees. Id. at 390, 109 S. Ct. at 1205. Existence of a "program" makes proof of fault and causation at least possible in an inadequate training case. If a program does not prevent constitutional violations, municipal decisionmakers may eventually be put on notice that a new program is called for. Their continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action--the "deliberate indifference"-- necessary to trigger municipal liability. Id. at 390, n.10, 109 S. Ct. at 1205 n.10 ("It could ... be that the police, in

61 exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are ‘deliberately indifferent’ to the need"); id. at 397, 109 S. Ct. at 1209 (O'CONNOR, J., concurring in part and dissenting in part) ("[M]unicipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations...."). In addition, the existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the "moving force" behind the plaintiff's injury. See id., at 390-391, 109 S. Ct. at 1205-1206.

Brown, 117 S. Ct. at 1390.

Note the repeated emphasis on the word "program" and note

the use of the plural form of the words "violations" and

"employees," both of which necessarily indicate instances of more

than one violation by more than one officer.

Moreover, note the existence of the reference to "existence

of a pattern of tortious conduct." Each of these comments by the

Supreme Court in Brown demonstrate that what it was saying in

City of Canton is that the surest way to establish the required

deliberate indifference on the part of the municipality is to

prove that its training program has failed to prevent more than

one constitutional violation by more than one employee over a

62 period of time, and that such proof would support a finding of

deliberate indifference by the municipality.

Also, in explaining why the analogy urged by Mrs. Brown

between failure-to-train cases and inadequate screening cases was

not persuasive, the Supreme Court in Brown stated the following:

In leaving open in Canton the possibility that a plaintiff might succeed in carrying a failure-to- train claim without showing a pattern of constitutional violations, we simply hypothesized that, in a narrow range of circumstances, a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations.

Note, first of all, the characterization of the language in

Canton as a hypothesis not a holding. Note next that the Supreme

Court in Brown characterized the applicability of the language in

Canton as applying to "a narrow range of circumstances," but the

Supreme Court in Brown did not add any further examples beyond

those already mentioned in City of Canton as to circumstances

which would fit in this narrow range.

Finally, note that the Supreme Court decision in Brown,

upgraded the probability of a violation of constitutional rights

occurring in an improper hiring case from "so likely to result,"

as stated in City of Canton, to "highly predictable consequence."

These same language distinctions are at the root of the Supreme

Court's analysis as to why the jury instructions in Brown on the

63 inadequate hiring issue which was before it were defective. The

jury instructions and issues on failure-to-train given by the

district court were virtually identical to the jury instructions

on inadequate hiring. As I have stated earlier, I do not think

the Supreme Court in Brown spoke in any way to the jury

instructions and issues on failure-to-train. But since we are

now asked to make an educated guess as to what we think the

Supreme Court would do with the failure-to-train instructions and

jury issues in this case, if, as, and when, those matters get

before the Supreme Court, I would put my money on the Supreme

Court finding them deficient for two reasons: first, because they

inquire about the deficiency of training of an individual, not

the deficiency of a training program; and second, because they

lack the specificity of constitutional violation and set too low

a test of probability just like the issues found deficient by the

Supreme Court on inadequate hiring in its opinion.

Conclusion

For all of the foregoing reasons, I respectfully dissent

from the analysis and conclusion of the majority opinion. I urge

Bryan County to file a motion for panel rehearing and suggestion

for en banc reconsideration with respect to the majority’s

treatment of both the liability and damage issues so that all of

the active members of our Court might have an occasion to address

64 the very serious issues raised by the majority's handling of this

appeal.

g:\opin\98-40877.dis 65