Gayla McKee v. City of Rockwall, Texas

877 F.2d 409, 1989 U.S. App. LEXIS 10381, 1989 WL 71645

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 19, 1989
• Docket: 87-1879
• Status: Published

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Gayla McKee sued the City of Rockwall and certain individual police officers from the Rockwall Police Department. She alleged that she had been injured as a result of the officers’ refusal to make an arrest, and that this non-arrest was the result of a Rockwall policy that discriminated on the basis of gender. She sought damages pursuant to 42 U.S.C. § 1983, contending that her rights under the Equal Protection Clause had been violated.

The individual officers and the City-sought summary judgment. The district court denied their motion. The officers and the City have asked for interlocutory review of that denial. Because we find that McKee has presented no evidence at all that the City pursues a discriminatory policy, we reverse the district court’s judgment with respect to the individual officers. We have, however, no jurisdiction to hear an interlocutory appeal by the City, and so remand for further proceedings on the claim against the City.

I

A. The Cause of Action

"In April of 1986, Gayla McKee summoned police officers to the apartment she shared with Harry Streetman, claiming that Streetman had assaulted her. The police officers made no arrests, but did drive McKee to another location out of Streetman’s view. After the officers had left, Streetman found McKee and slashed her in the leg with a knife. McKee contends that the officers acted pursuant to a discriminatory policy against making arrests in domestic assault cases. She further contends that the policy violates the Equal Protection Clause, and seeks damages from the officers and the City.

In reviewing the district court's disposition of a summary judgment motion, we consider the issues de novo. All reasonable doubts and inferences must be resolved in the light most favorable to the non-movant. Thornbrough v. Columbus and Greenville Railroad Co., 760 F.2d 633, 640 (5th Cir.1985). We therefore summarize the facts as set out by McKee in her complaint and in the affidavit accompanying her summary judgment brief.

McKee says that she was living with Harry Streetman, her boyfriend, during April of 1986. When she arrived home one evening, Streetman attacked and beat her. She found that Streetman had disabled her car to prevent her from escaping. She went to a convenience store, and phoned the police.

Officers John Parrish and Gary Fleet-wood were dispatched in response to the call. They eventually found McKee at the apartment. McKee says that while Parrish and Fleetwood were at the scene, they met Officer Trey Chaney, who was off-duty.

McKee told the officers that Streetman had assaulted her; that Streetman threatened to cause her severe injuries, and to kill her; that she was in fear of serious injury; and that Streetman would not permit her to retrieve her belongings, which were in the apartment.

McKee requested that the police arrest Streetman, or take her to her parents’ home. She says that the officers refused to take either course. According to McKee, the officers said that she exaggerated the threats posed to her. They suggested she talk matters out with him.

McKee requested that the officers take her to the police station so that she could file a complaint against Streetman. She says that either Parrish or Fleetwood told her that they could not take her to the station because she was inappropriately dressed. She adds that the officers said that although they would not take her to the station, she was free to go there on her own and to file a complaint. She further alleges that the officers told her that after she had calmed down she probably would not want to file a complaint.

According to McKee, Streetman at this point threatened to burn her belongings if she went to the station. McKee says that the police did not respond in any way when Streetman made the threat.

She says that, after refusing to arrest Streetman or to take her to the police station or her parents’ home, the police drove her to the apartment of Bruce Streetman, which was about fifty yards distant from the apartment Harry Streetman and McKee had been sharing. McKee phoned her parents, but Harry Streetman arrived at Bruce’s apartment a few minutes after McKee, and interrupted her phone call. McKee went to her car to wait for her parents. Harry Streetman followed her, and cut her right leg with a knife.

The officers’ account is in some respects inconsistent with McKee’s. The officers say, for example, that they offered to take McKee to the police station, but that she refused to go, and, indeed, refused to give them the cooperation necessary to obtain a warrant for Streetman’s arrest. Officer Parrish says that Streetman never threatened McKee in his presence. As we have already noted, however, we must on this review resolve factual conflicts in favor of the non-movant, and so we accept, for purpose of this opinion, McKee’s version of these contested facts.

The officers’ affidavits do, however, allege other facts which are uncontested by any of McKee’s evidence, and which may be true even if we accept as true everything stated in McKee’s own affidavit. The officers report that they were not able to detect any evidence that McKee had been assaulted. The officers could not detect “any welt, bruise, abrasion, cut, skin discoloration, unneat appearance, or any other indication that she had been beaten or assaulted.” Moreover, although the officers had been told when summoned that McKee was trapped inside an apartment, she arrived on the scene from a convenience store where she had called the police. The officers report that McKee looked angry rather than hurt, and that Streetman was calm. The officers say that they stood by while McKee removed her purse and some belongings from Street-man’s apartment. They attest that Fleet-wood remained with Streetman while Parrish drove McKee to an address where McKee said she wanted to be taken; that the address was out of the sight of Street-man and Fleetwood; and that the address to which McKee was being taken was never mentioned within the hearing of Street-man.

McKee contends that the police officers would have arrested Harry Streetman but for a city policy which discouraged officers from making arrests in domestic violence cases. In an effort to present evidence of such a policy, McKee relied on an affidavit from her mother, and on statistics compiled from Rockwall’s answers to McKee’s interrogatories. Because these materials are crucial to the disposition of this case, we quote them in full, as presented to the district court. Darlene McKee’s affidavit consists essentially of the following paragraph:

Within one or two days of the assault upon my daughter, my husband Roy McKee and I had a conversation with Chief Beaty of the Rockwall Police Department. During that conversation we asked the Chief why Harry Streetman had not been arrested when our daughter first called the police and reported his assault upon her. The Chief responded that his officers did not like to make arrests in domestic assault cases since the women involved either wouldn’t file charges or would drop them prior to trial.

The statistics were presented as follows:

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These statistics contain a glaring mathematical error — the totals for the “cleared assault” table add six arrests from 1985 without making any corresponding addition to the number of calls, and so distort the overall percentage — but, for the most part, we postpone comment on these statistics until Section V below.

The officers and the department both deny that the department ever had, and that the officers ever acted pursuant to, a policy of refusing to intervene in domestic violence cases. Chief Beaty denied that there had been any persistent failure or refusal of officers to make arrests in domestic violence cases where there existed probable cause to make an arrest.

B. Procedural History

McKee sued the City of Rockwall and Officers Chaney and Fleetwood, alleging liability pursuant to 42 U.S.C. § 1983. The original complaint also named Eddie Kee-see as a defendant, and made no claim against Officer Parrish. The claim against Keesee was later dropped.¹ McKee sought to invoke the state’s pendent jurisdiction over any state law tort claims, but has not alleged any particular such claim.

The City and the officers sought summary judgment, contending that the officers were insulated from liability by the doctrine of qualified immunity; that McKee’s complaint failed to state a claim against the City; that McKee had failed to present evidence showing that any of the officers or the City had violated any state or federal law; that McKee had failed to present any evidence that the City maintained a sexually discriminatory policy or custom which discouraged officers from making arrests for assaults arising in connection with domestic violence; that there was no causal link between the alleged policy and the non-arrest in this case; that McKee was the proximate cause of her own harm; and that because McKee's federal allegations were defective, the court had no jurisdiction to hear any pendent state claims.

II

We have jurisdiction to hear an interlocutory appeal from a district court’s decision denying a motion for summary judgment by an individual officer defendant in a § 1983 suit. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2816, 86 L.Ed. 2d 411 (1985).

No such doctrine exists, however, for the benefit of municipal defendants. Rockwall concedes as much, but asks that we extend the doctrine of Mitchell v. Forsyth to encompass interlocutory appeals by municipalities in instances when individual officer defendants take interlocutory appeals and when some of the defenses asserted by the individual officers would, if accepted, protect the City from liability as well. Rock-wall contends that permitting this limited range of interlocutory appeals would conserve judicial resources and protect cities from the expense of frivolous litigation.

We are not free, however, to shape the boundaries of our jurisdiction through a general equitable balancing of policy factors. The Forsyth Court itself applied the more general rule of Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Forsyth, 105 S.Ct. at 2816; see also id. at 2821 (concurring opinion of O'Connor, J., joined by Burger, C.J.). Under the doctrine of Coopers and Cohen, an interlocutory appeal is permissible only with respect to a decision which conclusively determines a disputed question, and which involves a claim “of right separable from, and collateral to, rights asserted in the action.” Forsyth, 105 S.Ct. at 2816. The Court reasoned that when an individual officer defendant sought summary judgment on grounds predicated in part upon the qualified immunity doctrine, the denial of that motion addressed a collateral issue by disposing of the officer’s right to be free from suit. Id. Municipalities cannot make any comparable argument establishing that denial of their summary judgment motions settles a collateral issue.

Nor are we inclined to find here so strange an animal as “pendent party interlocutory appellate jurisdiction.” This Court, through an opinion by Judge Godbold, has recognized that pendent interlocutory appellate jurisdiction over additional issues is looked upon with disfavor, and must not be invoked merely out of “convenience to the litigants, or even to this court.” Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir.1970). The same observation applies with at least equal force when we are asked to take pendent jurisdiction over parties otherwise not properly before us.

Precluding cities from taking an interlocutory appeal along with individual defendants may indeed result in some inefficient litigation. We expect, however, that the municipality will usually be able to reap in district court the benefits of a successful appeal by the city’s individual co-defendants. In any event, we cannot expand our appellate jurisdiction without some signal from the Supreme Court that it is willing to relax the requirements of Coopers and Cohen.

The attempted appeal by the City of Rockwall in this case must therefore be dismissed for want of appellate jurisdiction.

Ill

After the district court issued its opinion in this case, but prior to oral argument of the appeal, the Supreme Court handed down its decision in DeShaney v. Winnebago County DSS, — U.S. -, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, the Court held that “a State’s failure to protect an individual against private violence does not constitute a violation of the Due Process Clause.” 109 S.Ct. at 1004. Footnote three of the Court’s opinion qualifies this holding by observing that “[t]he State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).” DeShaney, 109 S.Ct. at 1004 n. 3.

Because McKee’s complaint sounds in Equal Protection, rather than Due Process, it is not directly barred by the holding in DeShaney. DeShaney is nonetheless relevant to our analysis of this case. The Court’s opinion in DeShaney endorses the general principle that choices about the “extent of governmental obligation” to protect private parties from one another have been left “to the democratic political processes.” 109 S.Ct. at 1003. There is no constitutional violation when the “most that can be said of ... state functionaries ... is that they stood by and did nothing when suspicious circumstances dictated a more active role.” 109 S.Ct. at 1007. Footnote three does not permit plaintiffs to circumvent the rule of DeShaney by converting every Due Process claim into an Equal Protection claim via an allegation that state officers exercised their discretion to act in one incident but not in another.

IV

We begin with some observations that are obvious, but not any less important for their obviousness. The officers had no authority to make any arrests absent probable cause to do so. The existence of probable cause turns not so much upon whether Streetman had committed a crime as upon whether or not the officers had sufficient evidence that Streetman had committed a crime. If Streetman had in fact, as McKee claims, assaulted McKee, but the officers had at the time found no credible evidence of the assault, the officers could not have made any arrest. The later discovery of evidence tending to prove that an assault had occurred would not alter the fact that probable cause was missing at the time the officers decided not to arrest Streetman.

DeShaney, of course, goes well beyond these observations. The observations just summarized show only that, under certain conditions, the Rockwall officers could not have arrested Streetman. DeShaney goes on to say that even if the officers could have arrested Streetman, they were not under any constitutional obligation to do so. The DeShaney rule leaves officers and law enforcement agencies with some discretionary authority: they need not fear that, in any close case, they must choose between liability for a potential false arrest and liability for a potentially actionable non-arrest.

Nonetheless, even without DeShaney’s protection for officer discretion, these fundamental limitations upon the officer’s authority to arrest Streetman come close to deciding this case. McKee alleges that Streetman violated Tex.Pen.Code § 22.01 (Vernon), dealing with assault, or Tex.Pen. Code § 22.02 (Vernon), dealing with aggravated assault. She contends that the officers should have arrested him pursuant to their authority under Tex.Code Crim.Proc. § 14.03(a) (Vernon), which permits officers to make a warrantless arrest based upon a reasonable suspicion that the arrestee has committed a felony.

It is arguable that, even accepting McKee’s version of the facts, the officers in this case might reasonably have concluded that they lacked probable cause to believe that Streetman had committed an assault. The existence of probable cause to arrest turns upon the totality of the circumstances. The only evidence of the alleged assault was McKee’s allegation. Yet the officers could see no physical indicia of an assault. The situation at the scene was, moreover, inconsistent with the details of the call relayed to the officers. McKee was not trapped within Streetman’s apartment, but was outside the apartment, returning from the convenience store from which she phoned the police. McKee was hostile while Streetman was calm. It is not clear that the police would, under these circumstances, have developed the reasonable suspicion necessary to justify an arrest. If indeed the police could reasonably have believed that they lacked grounds to make an arrest, their refusal to do so cannot be unconstitutional. See City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986) (if plaintiff has suffered no deprivation of constitutional rights, it is irrelevant that city’s policy would have authorized such a deprivation).

We might be able to decide the case on this ground were it not for McKee’s allegation that Streetman threatened her in the presence of the officers. McKee’s allegation creates a fact issue as to whether the threat occurred, and as to whether the police officers heard the threat. Although a threat to McKee’s property may not be evidence of a prior assault, it would itself be a crime. Texas law prohibits, under the name of “retaliation,” threats against the property of a police informant. “Informant” is defined broadly, so as to encompass anyone who provides information to the government. Tex.Pen.Code § 36.06 (Vernon). If the officers heard the threat, they would have witnessed a felony, and would have had authority to arrest Street-man pursuant to Tex.Code Crim.Proc. § 14.01.

V

McKee cannot, however, prevail merely by showing that the officers knew facts that would have justified an arrest of Streetman. This is the lesson of DeSha-ney: that law enforcement officers have authority to act does not imply that they have any constitutional duty to act. McKee can sustain her claim only by showing that the non-arrest was the result of discrimination against a protected class. McKee purports to find such discrimination in an alleged policy of the Rockwall Police Department discouraging arrests in domestic violence cases. McKee contends that this policy discriminates against women.

McKee must present some evidence of such a policy in order to survive the defendants’ summary judgment motion. When the nonmovant fails to make a sufficient showing on an essential element of her case, the moving party is entitled to summary judgment “since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

We have already quoted in full the only evidence which McKee produced to support her allegation of a discriminatory policy. This evidence, however, is completely without probative weight. Half of the evidence consists of one statement, allegedly made by the Rockwall police chief, indicating that officers “do not like to make arrests” in domestic violence cases. A dislike is not a policy. Officers may do things —indeed, they may be required by policy to do things — that they do not like to do. Nor, for that matter, is one officer’s dislike binding upon another. It is possible that most, or even nearly all, of the officers in the Rockwall Police Department disliked making arrests in domestic violence cases, but that Officers Fleetwood and Parrish did not share this dislike. In this respect, too, a dislike is different from a policy, which is binding on all officers regardless of their sentiments.

The remainder of the evidence consists of the rough statistical comparison between the “domestic violence” and “cleared assault” rates. We have already observed that McKee exaggerated the discrepancy between these two rates by figuring the numbers for 1985 into the numerator, but not the denominator, of the cleared assault fraction. There are additional problems. First, McKee’s own evidence shows that the domestic violence arrest rate was higher than the cleared assault arrest rate in two of the four years for which McKee presented complete statistics. The domestic violence arrest rate was higher in 1983 and 1984 (40% and 30% compared to 36% and 21%, respectively), while the cleared assault arrest rate was higher in 1982 and 1986. As such the statistics do not, even on their face, permit one to infer a disinclination to make arrests in domestic violence cases, much less to infer a policy discouraging such arrests. Second, the statistics do not correct for the wide variety of factors which might influence the likelihood that police would make an arrest: whether the assault was in progress when police ár-rived; whether a gun or knife had been used; whether the victim had suffered obvious physical injuries and required medical attention; and whether the victim refused to press charges when the police arrived. Third, the statistics do nothing to suggest gender-based discrimination. The statistics do not indicate how many of the victims in the cleared assault cases were women, or how many of the victims in the domestic violence cases were men.

There is still another reason why McKee’s statistics, and the alleged statement of Chief Beaty, lack any probative value. McKee, according to her own affidavit, asked the officers to arrest Street-man or to take her to her parents’ home. Even if one were willing to draw from Chief Beaty’s alleged statement the unreasonable inference that Rockwall had a policy discouraging arrests in domestic violence cases, there is no reason that such a policy would have deterred the officers from taking McKee to her parents’ home. Certainly a dislike for making arrests would not have prevented them from providing such transportation. The same is true if one is willing to draw from McKee’s statistics the unreasonable inference that Rockwall had a policy discouraging arrests in domestic violence cases. Indeed, on McKee’s argument, had the Rockwall officers done precisely what McKee asked by driving her to her parents’ residence, their action would have entered McKee’s statistics as a domestic violence “non-arrest” and so supported an inference that the police department discriminates against women. We find that reasoning absurd.

McKee cannot meet her burden under Celotex by using the statistics, or the statement attributed by her mother to Chief Beaty. With these bases for her case eliminated, her argument reduces to an attempt to generalize a single incident — the police department’s inaction in her own case — into a general policy or practice. We have indicated in other contexts that a single incident, when unaccompanied by supporting history, will frequently be an inadequate basis for inferring a policy. See e.g., Rodriguez v. Avita, 871 F.2d 552 (5th Cir.1989) (applying City of Canton v. Harris, — U.S. -, 109 S.Ct. 1197, 1205 & n. 10, 103 L.Ed.2d 412 (1989), to claim predicated on a single incident). To permit such an argument in this case would eviscerate the discretion reserved to police officers by De-Shaney. Absent any evidence of a discriminatory policy, the only reasonable construction of the officers’ action in this case is that they decided that McKee’s complaint did not warrant any further response than what they gave. ' As DeShaney makes clear, this judgment is not actionable.

The § 1983 claims against the individual officers must be dismissed because McKee has failed to provide any evidence tending to show that the officers’ inaction was a consequence of discrimination against a protected minority. With these claims eliminated, the jurisdictional basis for the pendent state law claims disappears, and they too must be dismissed.

VI

Because we find that there is a “complete failure” of proof with respect to McKee’s allegation of differential treatment of the victims of domestic violence, we do not decide whether other elements of an equal protection claim were present. In particular, we do not decide whether, had McKee created a fact issue as to the existence of a policy discriminating against victims of domestic violence, that policy would constitute intentional discrimination against women under the rule of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), or whether that policy would discriminate against a protected minority within the meaning of DeShaney’s footnote three.

VII

For the reasons stated, the district court’s denial of the individual officers’ summary judgment motion is reversed, and all claims against those officers are dismissed. The appeal of the City is dismissed for want of appellate jurisdiction.

REVERSED in part, DISMISSED in part, and REMANDED.

1 . McKee appended to her brief a document captioned "Plaintiffs First Amended Original Complaint," which she purports to have filed with the district court. The amended complaint names Parrish as an additional defendant. The document in McKee’s appendix is not file-stamped, and we express no opinion as to whether the document has been properly filed, or as to whether Officer Parrish has in fact been made a party to the underlying suit. Parrish has made no motion to become a party to this appeal.