Gilmere v. City of Atlanta

774 F.2d 1495, 1985 U.S. App. LEXIS 23839

Opinions

VANCE, Circuit Judge:

On New Year’s Day in 1980, Thomas Patillo died at the hand of an Atlanta policeman. We accepted this case for en banc consideration primarily to determine whether Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precludes a claim by his administratrix under 42 U.S.C. § 1983 because state tort law provides a comparable remedy.

I

The facts as found by the district court disclose that after drinking heavily and driving about Atlanta throughout New Year’s Day, Thomas Patillo had a near-collision with a van and then got into an argument with the van’s driver. Afterward, the driver called the police and reported that Patillo had pulled a gun from the trunk of his car and threatened him. When Officers Sampson and Craig arrived at Patillo’s home, they ordered him to the police car for questioning. Patillo initially put up some resistance by attempting to flee and then flailing his arms about, but these efforts were ineffectual because of his drunken condition. The officers then began escorting him by force and, according to eyewitnesses, began beating him about the head. As the party neared the patrol car, Patillo broke free of their hold. During the ensuing scuffle, Sampson shot Patillo in the stomach and killed him.¹

Patillo’s sister, as administratrix of his estate, sued the police officers, their supervisors and the City of Atlanta under 42 U.S.C. § 1983 for violations of his fourth, eighth and fourteenth amendment rights and under state tort law. After a bench trial, the district court held that: (1) both police officers were liable under section 1983 for beating Patillo; (2) Sampson was liable under section 1983 for shooting Patillo; (3) the city was also liable under section 1983 for training Sampson in a grossly negligent manner; (4) the police officers’ supervisors were not liable because the plaintiff had failed to prove an “affirmative link” between the supervisors’ conduct and Patillo’s injuries as required by Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); and (5) the plaintiff’s state law claims either were frivolous or would result in damages that would duplicate those already awarded under section 1983. A panel of this court reversed the district court on the first two grounds, concluding that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precluded the plaintiff’s claims against the police officers because state tort remedies were available to provide redress for the beating and shooting. It also reversed the finding of liability against the city on the ground that municipal liability cannot be predicated on negligence but rather requires proof that the constitutional violations resulted from policies or customs actually developed or affirmatively sanctioned by the city’s policymakers. It upheld the district court on the supervisory liability issue and remanded for reconsideration of the state law assault and battery claims in light of its decision to vacate the parallel section 1983 claims. Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir.1984). We address each of the district court’s holdings in turn.

II

The initial and primary focus of our concern is whether Parratt precludes the plaintiff from bringing a section 1983² suit against the police officers because there exists a basis for liability under state tort law. Parratt involved a claim by a prisoner against state prison administrators for the negligent deprivation of some mail-order hobby materials valued at $23.50. The Court noted initially that “one might well inquire why respondent brought an action in federal court to recover damages of such a small amount for negligent loss of property.” 451 U.S. at 529, 101 S.Ct. at 1910. The Court then went on to hold that the due process clause was not violated because “the deprivation did not occur as a result of some established state procedure,” id. at 544, 101 S.Ct. at 1917, and because the state provided adequate procedural due process through its tort claims statute. Id. The tenor of the Court’s decision makes clear that its principal concern was to prevent the trivialization of section 1983 into “ ‘a font of tort law to be superimposed upon whatever systems may already be administered by the States,’ ” id. at 544, 101 S.Ct. at 1917 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)). The precise scope of the holding remains uncertain, however, and courts throughout the federal circuits have struggled to formulate a workable set of criteria for determining its applicability to other fact situations and other constitutional claims. Some courts have read the case broadly to foreclose section 1983 relief when it overlaps state tort remedies. See, e.g.; Daniels v. Williams, 720 F.2d 792, 795 (4th Cir.1983), cert. granted, — U.S. —, 105 S.Ct. 1168, 84 L.Ed.2d 320 (1985); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.1981), aff'd on other grounds, Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). Other courts have sought to make principled distinctions between Parratt and the cases before them, reasoning that the Supreme Court could not have meant to deny every section 1983 plaintiff his day in federal court, no matter how egregious the constitutional violation, simply because of the availability of a similar tort action. See, e.g., Brewer v. Blackwell, 692 F.2d 387, 394-95 (5th Cir.1982); Duncan v. Poythress, 657 F.2d 691, 704-05 (5th Cir. Unit B 1981); Shillingford v. Holmes, 634 F.2d 263 (5th Cir. Unit A 1981). With these conflicting concerns in mind, we turn our attention to the situation before us — the intentional infliction of personal injury and death by means of excessive police force— and we conclude that the legislative history behind the statute, the Supreme Court’s own pronouncements in other cases, and the limits set by the Court in Parratt itself all indicate that its holding does not extend to the constitutional claims asserted here.³

The legislative history of section 1983 has been outlined many times. See Patsy v. Board of Regents, 457 U.S. 496, 502-08, 102 S.Ct. 2557, 2561-63, 73 L.Ed.2d 172 (1982); Mitchum v. Foster, 407 U.S. 225, 238-42, 92 S.Ct. 2151, 2159-62, 32 L.Ed.2d 705 (1972); McNeese v. Board of Education, 373 U.S. 668, 671-72, 83 S.Ct. 1433, 1435-36, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 171-83, 81 S.Ct. 473, 475-82, 5 L.Ed.2d 492 (1961). Whereas one may well need to look hard before finding a congressional intent to make a federal case out of a negligent deprivation of a prisoner’s hobby kit, the debates do indicate that a primary motivation behind the passage of the statute was the desire to eliminate the physical violence that was being visited on citizens by those entrusted to keep the peace. Originally called the Ku Klux Klan Act because of its focus on eliminating Klan activities which were terrorizing the South, the Act also was concerned with affording a federal remedy “against incursions under the claimed authority of state law----” Mitchum, 407 U.S. at 239, 92 S.Ct. at 2160. Congress further indicated that both the egregious nature of the harms being reported and the inefficacy of remedies sought in the state courts made the situation serious enough to warrant direct supervision by the federal courts regardless of the existence of comparable remedies under state law. Patsy, 457 U.S. at 502-08, 102 S.Ct. at 2561-63. The harm alleged in this case resulted from exactly the sort of official brutality which prompted passage of the Act. Whether or not the motivations behind police brutality have changed since 1871, and whether or not we may believe that the state courts actually do a better job of affording redress for those harms today, see Neuborne, The Myth of Parity, 90 Harv.L.Rev. 1105 (1977), the statutory grant of federal jurisdiction over section 1983 suits indicates that Congress, at least, continues to adhere to the belief that police abuse is a sufficient threat to constitutional rights to warrant “a federal right in federal courts.” Monroe, 365 U.S. at 180, 81 S.Ct. at 480.

The Supreme Court’s pronouncements in a number of cases indicate likewise that it would not relegate the victim of an intentional and unjustified beating or killing to state tort law in all circumstances. Monroe, the case which opened the door to the expansion of section 1983 litigation by recognizing that the statute created a private right of action, involved an instance of police abuse. 365 U.S. at 169, 81 S.Ct. at 474. In Jones v. Hildebrant, 432 U.S. 183, 185, 97 S.Ct. 2283, 2285, 53 L.Ed.2d 209 (1977), the Court assumed without discussion that the mother of a child who was intentionally shot and killed by a policeman acting under color of state law could sue directly under section 1983 notwithstanding the existence of a state wrongful death statute. See also Wilson v. Garcia, — U.S. —, —, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985) (“Congress ... intended that the remedy provided in § 1983 be independently enforceable whether or not it duplicates a parallel state remedy”). The Court has repeatedly made clear that the right to bring an action under section 1983 need not depend on the exhaustion of state judicial or administrative procedures; see, e.g., Patsy, 457 U.S. at 503, 102 S.Ct. at 2561; Steffel v. Thompson, 415 U.S. 452, 472-73, 94 S.Ct. 1209, 1222-23, 39 L.Ed.2d 505 (1974); Gibson v. Berryhill, 411 U.S. 564, 574, 93 S.Ct. 1689, 1695, 36 L.Ed.2d 488 (1973); McNeese, 373 U.S. at 671-73, 83 S.Ct. at 1435-36. Thus, access to federal court under section 1983 is not in general predicated on actual proof of a failure of the state adjudicatory system. Finally, in Parratt itself the Court indicated that its analysis was not based upon the conclusion that all section 1983 claims were to be turned into state torts whenever possible, but rather that the particular constitutional violation at issue—the deprivation of procedural due process— simply did not occur until the plaintiff was actually denied any procedure for redress in the state system. See Parratt, 451 U.S. at 541-44, 101 S.Ct. at 1916-17. Such reasoning implicitly distinguishes procedural due process claims from all the other constitutional violations that are complete regardless of the subsequent adjudicative procedures being used. See also Hudson v. Palmer, — U.S. —, —, n. 4, 104 S.Ct. 3194, 3208 n. 4, 82 L.Ed.2d 393 (1984) (Stevens, J., concurring in part and dissenting in part).

Having thus found that the scope of Par-ratt is necessarily limited by both the legislative history of section 1983 and the Supreme Court’s own pronouncements, we perceive at least two alternative constitutional theories, neither of which was addressed by the Court in Parratt, on which this plaintiff may predicate her section 1983 claim for relief against the police officers. We will first consider the claim under substantive due process and then analyze the substantive fourth amendment claim.

A

The first potential basis for plaintiff’s recovery is substantive due process. As Justice Blackmun noted in his concurrence in Parratt, “there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process.” 451 U.S. at 545, 101 S.Ct. at 1918 (citations omitted).⁴ Those courts of appeals which have addressed substantive due process claims since Parratt have been nearly unanimous in adopting Justice Blackmun’s view that substantive due process claims still survive in the wake of Parratt. See, e.g., Hall v. Sutton, 755 F.2d 786 (11th Cir.1985); Daniels v. Williams, 720 F.2d at 796 n. 3; State Bank of St. Charles v. Camic, 712 F.2d at 1147 n. 5; Wolf-Lillie v. Sonquist, 699 F.2d 864, 872 (7th Cir.1983); Duncan v. Poythress, 657 F.2d at 704-05. We too conclude that, notwithstanding Parratt, the substantive due process claim established in this case may be asserted in federal court regardless of the existence of a parallel state tort remedy.

Unlike procedural due process claims, which challenge the adequacy of the procedures used by the government in deciding how to treat individuals, substantive due process claims allege that certain governmental conduct would remain unjustified even if it were accompanied by the most stringent of procedural safeguards. Such substantive claims are outside the scope of Parratt because the constitutional violation is complete at the moment when the harm occurs. The existence of state postdeprivation remedies therefore has no bearing on whether the plaintiff has a constitutional claim.

The nature of a substantive due process claim in the police abuse context was given broad outline in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which the Supreme Court held inadmissible incriminating evidence which had been obtained by subjecting the suspect to a stomach pump. As the Court explained, substantive due process is violated when the government engages in actions which “ ‘offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.’ ” 342 U.S. at 169, 72 S.Ct. at 208 (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945)). The Court conceded at that time that “[tjhese standards of justice are not authoritatively formulated anywhere as though they were specifics,” id., and concluded only that substantive due process is violated by state conduct that “shocks the conscience” or constitutes force that is “brutal” and such as “to offend even hardened sensibilities.” Id. at 172-73, 72 S.Ct. at 209. Since Rochin, however, the lower courts have developed more definite standards for identifying substantive due process violations. As noted in the seminal case of Johnson v. Click, 481 F.2d 1028 (2d Cir.1973), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), the violations which give rise to a substantive due process claim are necessarily more egregious than those which give rise to simple tort actions. In Judge Friendly’s words,

Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Id. at 1033. The predecessor to this circuit has adopted the Johnson v. Glick factors as the guiding standard for substantive due process claims, see Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981); Hamilton v. Chaffin, 506 F.2d 904, 909 (5th Cir.1975). Cf. Tolbert v. Bragan, 451 F.2d 1020 (5th Cir.1971).

The court below properly cited the Johnson factors in addressing the plaintiffs substantive due process claim. It found on the basis of those factors that both police officers were liable for beating Patillo, and that Sampson was liable for shooting him. It therefore remains only for us to determine whether the court was correct in applying the Johnson factors to the facts before it.

In holding both officers liable for beating the decedent, the court found that the beating occurred “with little or no provocation” and that “the blows were not delivered in a good faith effort to control Patillo, but rather out of irritation at his initial resistance____” If supported by the record, these findings would suffice to make out a substantive due process violation under both Johnson and Rochin. Our reading of the record discloses that the court’s findings have evidentiary support. Those findings were based on the lack of independent evidence that Patillo provoked the beating in any significant way; by the fact that he was an older, smaller, and unarmed man who was clearly intoxicated; and by credibility evaluations of the officers and of numerous eyewitnesses who testified. We therefore see no reason to disturb this aspect of the district court’s holding.

The court also held Sampson liable on substantive due process grounds for the shooting of Patillo. As it noted, such action clearly implicated at least one of the Johnson factors in that the injury inflicted constituted the most serious harm possible. The district court found that Sampson’s purported fear of bodily injury was subjectively reasonable, given that at the time of the shooting the decedent was apparently free and moving toward him. The court declared, however, that the issue of whether Sampson’s use of deadly force was reasonable was "a close question.” It ultimately decided “with some hesitation” that Officer Sampson's belief that his life was in danger was not objectively reasonable and could not justify the killing. In another context we might have difficulty concluding that these findings establish a constitutional violation sufficiently egregious to “shock the conscience” as required by Rochin. Here, however, any fear on the officer’s part was the fear of retaliation against his own unjustified physical abuse. We conclude that a moment of legitimate fear should not preclude liability for a harm which largely resulted from his own improper use of his official power. For this reason, we affirm this portion of the district court’s holding as well.

B

The plaintiff also asserted a claim against both police officers under the fourth amendment,⁵ which provides in relevant part that “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures shall not be violated.” As the Supreme Court recognized in Monroe, a violation of the fourth amendment gives rise to a private cause of action under section 1983. See also Wolf-Lillie v. Sonquist, 699 F.2d 864, 871 n. 13 (7th Cir.1983); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. Unit A 1981); Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir.1970). The existence of state tort remedies is no bar to the direct assertion of such a claim in federal court. As noted in Monroe, “It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.” 365 U.S. at 183, 81 S.Ct. at 482. The Court in Parratt took pains to avoid disturbing this aspect of Monroe, acknowledging that section 1983 claims involving a violation of an enumerated constitutional right were substantively different from those based solely on fourteenth amendment due process. Parratt, 451 U.S. at 536, 101 S.Ct. at 1913. See also Hudson v. Palmer, — U.S. —, 104 S.Ct. 3194, 3210 n. 9, 82 L.Ed.2d 393 (1984) (Stevens, J., concurring in part and dissenting in part). The sole issue before us in evaluating this claim, therefore, is whether the plaintiff made out the elements of an unreasonable seizure.

As the Court recently noted, “[w]he-never an officer restrains the freedom of a person to walk away, he has seized that person.” Tennessee v. Garner, — U.S. —, —, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). Under that standard, a seizure clearly occurred in the case before us. A seizure is not unconstitutional, however, unless it is “unreasonable.” Reasonableness is to be determined by “ ‘balancing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Id. at —, 105 S.Ct. at 1699 (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)). In conducting this balancing test, we are to consider “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979).

Here we have little difficulty in concluding that the beating and killing of Patillo were sufficiently serious to be actionable under the fourth amendment. Patillo’s fourth amendment interest in his bodily security was clearly significant, and his “fundamental interest in his own life need not be elaborated upon.” Garner, — U.S. at —, 105 S.Ct. at 1700. Even such weighty individual interests may conceivably be counterbalanced by governmental interests in effective law enforcement. In this ease, however, the district court’s findings establish that the harms visited on the decedent while in the officers’ custody were only minimally, if at all, necessary to enable them to carry out their official duties. The events occurred in an outdoor parking lot in the late afternoon, at a sufficient distance from bystanders to establish that the surroundings posed no particular threat to the safety of the officers. Cf. Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884 (citing safety threats in jails as one possible justification for intrusive searches and seizures). Furthermore, the police had little cause to believe Patillo himself to be dangerous. Given his small size, intoxicated state, and lack of a weapon, he clearly posed little threat to their safety when they initially began escorting him to the patrol car. Finally, as we have pointed out in section A above, the district court’s findings of fact establish that Patillo did little to provoke the police officers to beat him. That unwarranted intrusion, as well as the unwarranted shooting which directly resulted from his efforts to escape the officers’ further physical abuse, give grounds for relief under the fourth amendment.

Ill

The plaintiff also alleged, and the district court found, that the City of Atlanta should be held liable under section 1983 for the harms visited on the decedent. The panel reversed on the ground that the court had used an improperly low standard for determining municipal liability. We too reverse the district court, but for different reasons set forth below.

The evaluation of any section 1983 municipal liability claim necessarily begins with an examination of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In that case, the Court made clear that municipal liability must be predicated on more than a respondeat superior theory. The plaintiff must show that the government employees’ unconstitutional action “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers” or else is “visited pursuant to governmental ‘custom’ even though such custom has not received formal approval through the body’s official decision making channels.” Monell, 436 U.S. at 690-91, 98 S.Ct. at 2036.

Though Monell thus established that the basis for municipal liability could be found in either “policy” or “custom,” the Court expressly declined to clarify the nature of the showing required from the plaintiff to implicate the municipality. The Court deemed it better to defer “further development of this action to another day.” Id. at 695, 98 S.Ct. at 2038. The district court attempted to clarify the meaning of the Court’s terminology by concluding that municipal liability could be established by a showing that the city exhibited “gross negligence” or “deliberate indifference” in failing to take measures to prevent the unconstitutional actions of its employees. Then, applying that standard to the facts before it,⁶ the court determined that the plaintiff had met her burden of proof by showing that the city had negligently failed to give Sampson adequate psychological testing or to retrain him sufficiently upon his return to the police force in 1978.⁷ In reversing the district court, the panel rejected the lower court’s gross negligence standard. In the panel’s view, the city could be held liable only if the plaintiff produced evidence that the constitutional violators’ actions had actually been initiated, or at least implicitly ratified, by those representing official policy.

The cases from this circuit which were cited by the panel do not clearly support the standard of affirmative official ratification which it articulated,⁸ and cases from other circuits are in direct conflict.⁹ There exists, therefore, substantial disagreement as to whether gross negligence can suffice to establish municipal liability. We find it unnecessary at this time to state the rule to be followed by this circuit, however, as we find that plaintiff has failed to make out a case against the city even under the gross negligence standard. At most she established that the city failed to train one single policeman properly in the appropriate methods of avoiding the use of deadly force. Even if such failure could be said to be “the moving force of the constitutional violation,” as required by Monell, see Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981) (quoting Monell, 436 U.S. at 695, 98 S.Ct. at 2038), the plaintiffs proof did not in any case satisfy Monell’s further requirement that the failure resulted from a custom that was “so permanent and well settled” as to have “the force of law.” Monell, 436 U.S. at 691, 98 S.Ct. at 2036.¹⁰ Indeed, the evidence showed that the city had substantially modified its police training procedures subsequent to Sampson’s initiation as a policeman in 1974 and that his failure to receive further training upon being rehired in 1978 was an anomaly resulting from his prior service on the police force. Accordingly, we reverse the district court’s holding that the city is liable to the plaintiff under § 1983.

IV

Finally, we address plaintiff’s claim against various of the police officers’ supervisors, including Maynard Jackson, the mayor, Lee Brown, the public safety commissioner, and George Napper, the chief of police. The district court found for these defendants on the ground that the plaintiff had failed to establish the existence of an “affirmative link,” as required by Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), between the death of Patillo and the action or inaction of any of the three supervisors.

We agree. There is no evidence in the record that any of these defendants participated directly in the shooting of Patillo, and although Brown and Napper may have had the right to control the actions of the police officers, they could not be held liable under section 1983 for having “the mere right to control without any control or direction having been exercised____” Monell, 436 U.S. at 694 n. 58, 98 S.Ct. at 2037 n. 58.

V

The plaintiff also sought damages under several state tort theories, including false arrest, false imprisonment, and assault and battery. The district court rejected each of these claims either because the individual claim lacked merit or because it would have resulted in damages duplicative of those already awarded to the plaintiff under section 1983. In light of our partial reversal, we direct the court to reexamine the state tort claims on remand to determine whether there are now live claims against any of the defendants.

VI

In conclusion, we affirm the district court’s holding that Officers Craig and Sampson are liable for beating Thomas Pa-tillo in violation of his constitutional rights, that Officer Sampson is liable for shooting Patillo in violation of his constitutional rights, and that their supervisors are not liable under the federal claims for the officers’ misconduct. We reverse its finding of municipal liability, and remand for further consideration of the plaintiff’s state law claims in light of the foregoing opinion. We vacate the award of costs and attorney’s fees under 42 U.S.C. § 1988 and remand for further consideration in light of this opinion and the additional proceedings that have taken place since the district court’s original awards.

AFFIRMED in part, REVERSED in part, VACATED in part and REMANDED.

1 . Reports of what happened in the seconds before the shooting diverged significantly. The officers testified that Patillo broke away, grabbed Craig’s gun from the holster, and had begun to level it at Sampson when Sampson drew his revolver and fired twice. None of the eyewitnesses saw Patillo reach for Craig’s revolver, and none of them saw a gun in Patillo’s hand at any time. The court weighed this conflicting testimony and concluded:

[T]he officers were striking Patillo as he tried to break away. When he did break away, he reached for Craig’s revolver. In the ensuing scuffle, the revolver was knocked to the ground. At that point, Patillo lunged toward Sampson, who reacted by drawing his own revolver and shooting Patillo twice at close range in the abdomen.

2 . 42 U.S.C. § 1983 reads in relevant part,

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law____

3 . We recognize the significance of the problem that the Court was attempting to address in Parratt. Because prisoners' lives are comparatively more regulated by government officials than are the lives of unincarcerated persons, a logical development accompanying the expansion of section 1983 liability has been significant increase in the numbers of prisoner claims filed in federal court. See Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Cases in the Federal Courts, 92 Harv.L.Rev. 610 (1979). This expansion has strained the resources of the federal courts, and the frivolous nature of many of the claims has arguably led some courts to treat even those few with merit to little more than summary justice. See id. We trust, however, that the Court’s attempt to remedy the particular problem of frivolous prisoner suits in Parratt was not intended to extend to claims such as the one before us, which allege harms much graver than that involved in that case.

4 . Some courts have adopted yet another limitation articulated by Justice Blackmun in Parratt; "I do not read the Court’s opinion as applicable to a case concerning deprivation of life or liberty.” 451 U.S. at 545, 101 S.Ct. at 1918. (Blackmun, J., concurring). See, e.g., Wilson v. Beebe, 743 F.2d 342, 348 (6th Cir.1984); Brewer v. Blackwell, 692 F.2d 387 (5th Cir.1982). See also Hudson v. Palmer, — U.S. —, —, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984) ("Parratt is necessarily limited by its facts to negligent deprivations of property."). Cf. Kimbrough v. O’Neil, 523 F.2d 1057, 1065 (7th Cir.1975) (Stevens, J., concurring) (distinguishing property deprivations from liberty deprivations on the ground that the former can be satisfied by a postdeprivation hearing), opinion on rehearing en banc, 545 F.2d 1059 (7th Cir.1976). This distinction is supported by the rationale that since Parratt's intent is to exclude the less egregious harms from the scope of constitutional analysis, and since life or liberty interests, unlike property interests, cannot be fully protected by affording postdeprivation remedies, only property rights are within the scope of the Parratt analysis. While we recognize that life and liberty hold a higher place than property in the hierarchy of constitutional interests, compare Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (property interests are not created by the constitution, but are defined by independent standards such as state law) with Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed.2d 935 (1974) (there exists a core of liberty interests protected by the constitution itself regardless of state law), our disposition of this case makes it unnecessary for us to use this form of analysis.

5 . The district court’s opinion noted that the plaintiff had asserted a fourth amendment claim for unreasonable seizure, but the court did not squarely address the merits of that claim. We find that the issue is properly before us because the plaintiff reasserted it in her brief before this court. As for the eighth amendment claim, we express no opinion because plaintiff does not press it in her appeal.

6 . When Officer Sampson first joined the Atlanta police department in 1973, he received the standard six week training course then provided at the police academy. A number of citizen complaints were filed against him from 1973 to 1978. His first performance evaluation rated him as "average,” except in noting that he should curb his temper and improve his judgment in tight situations. A later evaluation rated him somewhat higher and offered no negative comments. Sampson resigned in 1978, but was rehired later that year with one day of reorientation and no psychological testing. Craig, who was hired in 1978, received thirteen weeks of academy training as well as psychological testing. He also underwent eight weeks of on-the-job training followed by six months on probationary status before being permanently hired.

7 . The plaintiff also asserted that the city should be held liable on the ground that it knew that Atlanta police officers customarily used excessive force and condoned such activity. The district court properly found that she had failed to produce sufficient evidence to substantiate those claims.

8 . See Williams v. City of Valdosta, 689 F.2d 964 (11th Cir.1982); Hearn v. City of Gainesville, 688 F.2d 1328 (11th Cir.1982) (cited in Gilmere v. City of Atlanta, 737 F.2d 894, 904 (11th Cir.1984)).

9 . See, e.g., Tuttle v. City of Oklahoma City, 728 F.2d 456, 459 (10th Cir.1984) (adopting gross negligence standard), rev’d on other grounds, — U.S. —, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (the use of a gross negligence standard not addressed by a majority of the Court, see, e.g., — U.S. at — n. 7, 105 S.Ct. at 2436 n. 7 (plurality opinion)); Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979). Other courts have adopted a standard of liability which borrows from both ends of the spectrum, permitting a finding of municipal liability where the evidence shows indifference to unconstitutional activity that is so widespread as to permit an inference of actual or constructive knowledge. See, e.g., Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc); Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir.) (en banc), modifying 728 F.2d 762 (5th Cir.1984) (en banc); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir.1983); Wolf-Lillie v. Sonquist, 699 F.2d 864 (7th Cir.1983) (sheriff's actual or constructive knowledge of prior similar constitutional deprivations attributable to municipality); Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981); Turpin v. Mailet, 619 F.2d 196, 200-01 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). Cf. McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir.1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982).

10 . We acknowledge that various courts have concluded that a single constitutional violation by a municipal employee can suffice to establish custom or policy. See, e.g., Turpin v. Mailet, 619 F.2d 196, 201 (2d Cir.1980); Leite v. City of Providence, 463 F.Supp. 585, 590-91 (D.R.I.1978). This approach, however, was rejected by the Supreme Court last term in City of Oklahoma City v. Tuttle. Although there was no majority opinion on the municipal liability issue in Tuttle, both the plurality and dissenting justices agreed that an isolated shooting by a police officer cannot, by itself, suffice to prove the existence of a city policy or custom. See — U.S. at — - —, 105 S.Ct. at 2433-37 (opinion of Rehnquist, J., joined by Burger, C.J., and White and O’Connor, JJ.); 4645-46 (Brennan, J., joined by Marshall and Blackmun, JJ., concurring in the judgment).

We recognize that an isolated constitutional violation may lead to municipal liability under § 1983 if there is sufficient independent proof that the moving force of the violation was a municipal policy or custom. "A § 1983 cause of action is as available for the first victim of a policy or custom that would foreseeably and avoidably cause an individual to be subjected to deprivation of a constitutional right as it is for the second and subsequent victims." Tuttle, — U.S. at —, 105 S.Ct. at 2439 (Brennan, J., joined by Marshall and Blackmun, JJ., concurring in the judgment). We reach our present decision that the city is not liable under § 1983 not only because the shooting and beating was an isolated occurrence, but also because the plaintiff has failed to prove that the alleged inadequacy of Officer Sampson's training was the result of a municipal policy or custom within the meaning of Monell.