F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 23 1999 TENTH CIRCUIT PATRICK FISHER Clerk
N. M. GOFF,
Plaintiff - Appellant, No. 98-5240 v. (N.D. Oklahoma) CITY OF TULSA, a municipal (D.C. No. 97-CV-563-J) corporation,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , REAVLEY , ** and BRORBY , Circuit Judges.
N.M. Goff appeals the summary judgment entered against her on the civil
rights claim she brought against the City of Tulsa under 42 U.S.C. § 1983.
Because we agree with the district court that Goff did not raise a material issue of
fact sufficient to defeat summary judgment on the issue of municipal liability, we
affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
** Honorable Thomas M. Reavley, United States Senior Circuit Judge for the Fifth Circuit, sitting by designation. Summary judgment is appropriate if the record discloses “that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). Under modern summary
judgment practice “there is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party. If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)
(citations omitted).
A municipality does not incur liability under § 1983 “unless action pursuant
to official municipal policy of some nature caused a constitutional tort.” Monell
v. Department of Soc. Servs. , 436 U.S. 658, 691 (1978). A municipality is liable
“only where the municipality itself causes the constitutional violation at issue.”
City of Canton v. Harris , 489 U.S. 378, 385 (1989). The violation must be caused
by a municipal policy or custom reflecting a deliberate or conscious choice by city
policymakers, id. at 389, or an official with final policymaking authority, see
Randle v. City of Aurora , 69 F.3d 441, 447 (10th Cir.1995). Goff did not show
that the officers had final policymaking authority.
As for the issue of municipal policy or custom, a policy “must be a policy
statement, ordinance, regulation, or decision officially adopted and promulgated
by a municipality’s officers.” Lankford v. City of Hobart , 73 F.3d 283, 286 (10th
-2- Cir. 1996) (brackets, internal quotation marks omitted) . Goff directs us to written
procedure 31-114 C of the Tulsa police department as a written procedure which
allows for custodial arrest of a juvenile for a traffic offense. As we read one
written version of this procedure in the record, juveniles committing “pre-set
fine” violations receive a citation. For other traffic violations, the juvenile is
“booked to municipal court.” We do not read this procedure as calling for an
arrest, only a court date. Another copy of the procedure states that “whenever
possible, juveniles will be issued citations in lieu of arrest.” This language
implies that an arrest is warranted in some cases.
Citing Glidden v. Higgs , 839 P.2d 680 (Okla. Ct. App. 1992), Goff argues
that a traffic offense by a juvenile is not a crime under Oklahoma law and
therefore cannot constitutionally justify an arrest. However, arresting a juvenile
after a stop for a traffic violation is not unconstitutional per se. There are
obviously some circumstances where an officer can make an arrest after pulling
over an automobile for a traffic violation. If, for example, after a traffic stop the
officer is assaulted, contraband is found in plain view or pursuant to a consensual
search, or the officer recognizes the juvenile as the subject of an arrest warrant on
another charge, an arrest at that point is constitutional. Goff therefore does not
show that the procedure sanctions unconstitutional conduct.
-3- Goff also points to procedure 31-121 B, which states that for certain minor
offenses a juvenile must be released to her parents, but that “[i]f the parents
cannot be located, the juvenile should be taken to the Youth Services of Tulsa
(YST) shelter.” The next section states that “[i]n the case of an arrest for traffic
offenses only, if the parents cannot be notified, attempt to locate a responsible
adult relative to release the juvenile to.” As we understand Goff’s argument, this
procedure contemplates unconstitutional arrests because (1) a traffic offense is
not a crime under Oklahoma law, and hence cannot constitutionally justify an
arrest, (2) the procedure calls for an arrest (i.e. the taking of the juvenile to the
YST shelter) for a traffic violation if the parents or another adult relative cannot
be located.
However, even if the city has an unconstitutional practice of arresting
juveniles for traffic offenses, such a policy cannot be described as the “‘moving
force’ behind the injury alleged. That is, a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the deprivation of federal
rights.” Board of County Comm’s v. Brown , 117 S. Ct. 1382, 1388 (1997). Even
if Goff was issued a citation for not wearing a seat belt, which is a traffic
violation, and even if as she claims she was arrested (even though she admits that
she was released to her grandmother), she did not show that procedure 31-121 B
-4- was the moving force behind her alleged illegal search and arrest. The
automobile was stopped for an expired tag. Goff, a passenger, was handcuffed
and searched because the officer saw her trying to hide something, which turned
out to be marijuana, in her pants. She has not shown that she was handcuffed and
searched illegally because the officers pursued a written policy allowing for such
conduct.
Absent an official policy, a municipality may be held liable if the
unconstitutional practice is “so permanent and well settled as to constitute a
‘custom or usage’ with the force of law.” Lankford , 73 F.3d at 286 (quoting
Adickes v. S.H. Kress & Co. , 398 U.S. 144, 168 (1970)). In order to establish a
custom, the actions of the municipal employees must be “continuing, persistent
and widespread.” Gates v. Unified Sch. Dist. No. 449 , 996 F.2d 1035, 1041
(10th Cir. 1993). In addition, the plaintiff must show deliberate indifference to or
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 23 1999 TENTH CIRCUIT PATRICK FISHER Clerk
N. M. GOFF,
Plaintiff - Appellant, No. 98-5240 v. (N.D. Oklahoma) CITY OF TULSA, a municipal (D.C. No. 97-CV-563-J) corporation,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , REAVLEY , ** and BRORBY , Circuit Judges.
N.M. Goff appeals the summary judgment entered against her on the civil
rights claim she brought against the City of Tulsa under 42 U.S.C. § 1983.
Because we agree with the district court that Goff did not raise a material issue of
fact sufficient to defeat summary judgment on the issue of municipal liability, we
affirm.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
** Honorable Thomas M. Reavley, United States Senior Circuit Judge for the Fifth Circuit, sitting by designation. Summary judgment is appropriate if the record discloses “that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). Under modern summary
judgment practice “there is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party. If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)
(citations omitted).
A municipality does not incur liability under § 1983 “unless action pursuant
to official municipal policy of some nature caused a constitutional tort.” Monell
v. Department of Soc. Servs. , 436 U.S. 658, 691 (1978). A municipality is liable
“only where the municipality itself causes the constitutional violation at issue.”
City of Canton v. Harris , 489 U.S. 378, 385 (1989). The violation must be caused
by a municipal policy or custom reflecting a deliberate or conscious choice by city
policymakers, id. at 389, or an official with final policymaking authority, see
Randle v. City of Aurora , 69 F.3d 441, 447 (10th Cir.1995). Goff did not show
that the officers had final policymaking authority.
As for the issue of municipal policy or custom, a policy “must be a policy
statement, ordinance, regulation, or decision officially adopted and promulgated
by a municipality’s officers.” Lankford v. City of Hobart , 73 F.3d 283, 286 (10th
-2- Cir. 1996) (brackets, internal quotation marks omitted) . Goff directs us to written
procedure 31-114 C of the Tulsa police department as a written procedure which
allows for custodial arrest of a juvenile for a traffic offense. As we read one
written version of this procedure in the record, juveniles committing “pre-set
fine” violations receive a citation. For other traffic violations, the juvenile is
“booked to municipal court.” We do not read this procedure as calling for an
arrest, only a court date. Another copy of the procedure states that “whenever
possible, juveniles will be issued citations in lieu of arrest.” This language
implies that an arrest is warranted in some cases.
Citing Glidden v. Higgs , 839 P.2d 680 (Okla. Ct. App. 1992), Goff argues
that a traffic offense by a juvenile is not a crime under Oklahoma law and
therefore cannot constitutionally justify an arrest. However, arresting a juvenile
after a stop for a traffic violation is not unconstitutional per se. There are
obviously some circumstances where an officer can make an arrest after pulling
over an automobile for a traffic violation. If, for example, after a traffic stop the
officer is assaulted, contraband is found in plain view or pursuant to a consensual
search, or the officer recognizes the juvenile as the subject of an arrest warrant on
another charge, an arrest at that point is constitutional. Goff therefore does not
show that the procedure sanctions unconstitutional conduct.
-3- Goff also points to procedure 31-121 B, which states that for certain minor
offenses a juvenile must be released to her parents, but that “[i]f the parents
cannot be located, the juvenile should be taken to the Youth Services of Tulsa
(YST) shelter.” The next section states that “[i]n the case of an arrest for traffic
offenses only, if the parents cannot be notified, attempt to locate a responsible
adult relative to release the juvenile to.” As we understand Goff’s argument, this
procedure contemplates unconstitutional arrests because (1) a traffic offense is
not a crime under Oklahoma law, and hence cannot constitutionally justify an
arrest, (2) the procedure calls for an arrest (i.e. the taking of the juvenile to the
YST shelter) for a traffic violation if the parents or another adult relative cannot
be located.
However, even if the city has an unconstitutional practice of arresting
juveniles for traffic offenses, such a policy cannot be described as the “‘moving
force’ behind the injury alleged. That is, a plaintiff must show that the municipal
action was taken with the requisite degree of culpability and must demonstrate a
direct causal link between the municipal action and the deprivation of federal
rights.” Board of County Comm’s v. Brown , 117 S. Ct. 1382, 1388 (1997). Even
if Goff was issued a citation for not wearing a seat belt, which is a traffic
violation, and even if as she claims she was arrested (even though she admits that
she was released to her grandmother), she did not show that procedure 31-121 B
-4- was the moving force behind her alleged illegal search and arrest. The
automobile was stopped for an expired tag. Goff, a passenger, was handcuffed
and searched because the officer saw her trying to hide something, which turned
out to be marijuana, in her pants. She has not shown that she was handcuffed and
searched illegally because the officers pursued a written policy allowing for such
conduct.
Absent an official policy, a municipality may be held liable if the
unconstitutional practice is “so permanent and well settled as to constitute a
‘custom or usage’ with the force of law.” Lankford , 73 F.3d at 286 (quoting
Adickes v. S.H. Kress & Co. , 398 U.S. 144, 168 (1970)). In order to establish a
custom, the actions of the municipal employees must be “continuing, persistent
and widespread.” Gates v. Unified Sch. Dist. No. 449 , 996 F.2d 1035, 1041
(10th Cir. 1993). In addition, the plaintiff must show deliberate indifference to or
tacit approval of such misconduct by policymaking officials after notice of such
misconduct. Id. Goff did not present sufficient evidence of an illegal practice,
known to policymaking officials, “so permanent and well settled” or so
“continuing, persistent and widespread” for a jury to impose liability on the city.
Goff points to evidence that the two officers were not disciplined after an internal
affairs investigation, but this evidence does not demonstrate a widespread custom
of the city to violate the Fourth Amendment rights of citizens. Goff also cites
-5- United States v. Davis , 94 F.3d 1465 (10th Cir. 1996), where Tulsa police officers
were found to have committed an unlawful investigative detention. Again, the
one incident described in this case is not enough to establish a widespread
custom.
Goff also cites trial testimony which she claims shows that the officers who
handcuffed and searched her have on other occasions performed pat down
searches and handcuffed individuals without reasonable suspicion. Again, we do
not believe that this evidence rises to the level of proof of illegal actions so
permanent and well settled or so continuing, persistent and widespread as to
constitute a city custom that was known to policymaking officials. Moreover, this
evidence was not presented in response to the summary judgment motion. Goff
did not file a request to stay resolution of the summary judgment motion in order
to allow further discovery, in compliance with Fed. R. Civ. P. 56(f), nor does she
raise as a separate point of error that the district court should have reversed its
interlocutory summary judgment and submitted the federal claim to the jury in
light of the trial testimony. The only issue she presents on appeal is whether the
district court erred in granting the summary judgment motion in the first instance.
Our review of the summary judgment is therefore limited to the evidence
presented in support of and opposition to the summary judgment motion.
AFFIRMED.
-6- ENTERED FOR THE COURT
Thomas M. Reavley Senior Circuit Judge
-7-