Lynn v. City of Detroit

98 F. App'x 381

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 5, 2004
• Docket: No. 02-2123
• Status: Published

Opinions

DAVID A. NELSON, Circuit Judge.

The question presented in this appeal is whether the defendants — two lieutenants and two sergeants in the Detroit Police Department — are entitled to qualified immunity from suit on constitutional claims arising from the misconduct of four rogue police officers under the defendants’ command. The subordinate officers were guilty of a string of illegal searches, false arrests, and thefts; the plaintiffs were among their victims.

The defendants’ entitlement to qualified immunity turns on whether the defendants knowingly acquiesced in their subordinates’ unconstitutional conduct, to the plaintiffs’ injury. Unlike the district court, we believe that the facts of the case, which are undisputed, evince neither the requisite acquiescence nor the requisite causation. On the contrary, the record shows that the defendants reported (or understood that others had reported) specific complaints against the rogue officers to the department’s Internal Affairs Division, whose responsibility it was to investigate such complaints. There has been no showing that if the defendants had acted differently, the Internal Affairs Division would have put a stop to the misconduct earlier and thus saved the plaintiffs from being victimized. The district court’s order denying the defendants’ motion for summary judgment will be reversed.

I

On February 10, 1996, Detroit police officers Kenneth Owens, Arnold Redd, Christopher Hatcher, and Dennis Rad-ford — all of whom were assigned to the third shift, or platoon, at the 6th Precinct — decided to raid what they thought was a drug house. Redd used a pay phone to call in a false 911 report, and the four officers responded to the ensuing radio call. With guns drawn, they entered the house in question, handcuffed the four men who were present, and searched the premises. Owens “went upstairs and came down with drugs,” which he apparently had planted himself. The officers arrested George Lynn and Terrance Beauchamp, two of the men who were in the house, and took about $400 from them. It is Lynn and Beauchamp who are the plaintiffs in this action.

The officers filed false reports stating that Lynn and Beauchamp had been caught with substantial quantities of heroin and cocaine. According to the reports, the officers confiscated $61 (not $400) in cash along with the narcotics. Charged with possession of controlled substances with intent to deliver them, Lynn and Beauchamp pleaded guilty in order to avoid lengthy prison terms. Later, when the officers’ wrongdoing came to light, the convictions were set aside.

In the spring of 1996, officers of the Internal Affairs Division of the Detroit Police Department began to investigate Owens, Redd, and other members of their platoon. About a dozen complaints alleging theft by Owens or Redd had been received by Internal Affairs, beginning in 1995. The investigation, which lasted between 18 months and two years, led to the indictment of Owens, Redd, Hatcher, Rad-ford, and six other officers on charges that included conspiracy, deprivation of civil rights, use of firearms during crimes of violence, possession of stolen firearms, and possession of cocaine. Each of the officers pleaded guilty or was convicted at trial.

The defendants herein, David Anderson, Alisha Terry, Phillip Ferency, and Julius Tate, are police sergeants and lieutenants who were responsible for supervising the third platoon at the 6th Precinct. It is undisputed that none of these supervisors was personally involved in the arrests of Lynn and Beauchamp. Each of the supervisors gave deposition testimony, which we summarize here, concerning his or her knowledge of criminal activity in the platoon prior to February 10, 1996, and his or her responses to such knowledge.

Sgt. Anderson was aware in 1995 or 1996 that several of the officers under his supervision, including Owens, Redd, Hatcher, and Radford, were widely suspected of criminal activity. Anderson himself was suspicious of the officers because “they made a large amount of narcotics arrests and they rarely recovered any money.” Anderson also knew that the officers made “informal raids on drug houses.” He discussed his suspicions “[d]oz-ens” of times with Ferency, Terry, Tate, and other supervisors, but, lacking “solid proof’ of wrongdoing, he did not report the officers to Internal Affairs. Anderson monitored the officers on some of their runs but witnessed no criminal activity. He did nothing else with respect to his suspicions. Anderson knew that citizens were complaining “almost daily at times” about robberies committed by the officers, but he did nothing in response to those complaints. He assumed that “whoever took the complaint would notify Internal Affairs and they would investigate it.”

Beginning in November of 1995, Sgt. Terry heard rumors about criminal activity by officers in her platoon. These rumors concerned officers’ stealing jewelry and cash from crime scenes. Terry did not report the rumors to Internal Affairs or change the manner in which she supervised the officers. She was not aware of any citizen complaints of robbery.

Lt. Ferency received three to five citizen complaints of theft by officers under his command. He reported these complaints. Ferency was often told by other officers that his platoon was “crooked,” but no one ever gave him any specifics. He reported the general allegations to his supervisor, as well as to Internal Affairs.¹ He also discussed the allegations with the sergeants working under him, including Sgt. Anderson and Sgt. Terry. Ferency “mentally pick[ed] apart” all of the officers’ reports, but he did not change the way he observed the officers. On one occasion, Lieutenants Ferency and Tate discussed the fact that certain officers were recovering large quantities of drugs but no money. In Ferency’s eyes, however, “everything seemed to be okay because the prisoners never made any allegations.”

Lt. Tate took a complaint in July of 1995 from a man who said Owens had robbed him. He had a sergeant complete a report, and he understood that Internal Affairs was advised of the complaint. Between July of 1995 and November of 1996, Tate heard rumors of criminal activity by officers in his precinct. At the time of his deposition, Tate could not recall the nature of the rumors.²

Lynn and Beauchamp sued Owens, Redd, Hatcher, Radford, and others under 42 U.S.C. § 1983 and state law. The case was removed to federal district court, but the court remanded all state-law claims. The plaintiffs then filed an amended complaint that added Anderson, Terry, Ferency, and Tate as defendants. These defendants ³ moved for summary judgment on the basis of qualified immunity.

After hearing oral argument, the district court denied the motion. The court held that the defendants’ inaction amounted to knowing acquiescence in the subordinate officers’ unconstitutional conduct. The defendants have filed a timely appeal.

II

This court has jurisdiction to hear the defendants’ interlocutory appeal from the denial of qualified immunity only if the appeal “involves the abstract or pure legal issue of whether the facts alleged by the plaintiff constitute a violation of clearly established law.” Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.1999) (internal quotation marks omitted), cert. denied, 530 U.S. 1264, 120 S.Ct. 2724, 147 L.Ed.2d 988 (2000). Thus, the defendants “must be willing to concede to the facts as alleged by the plaintiff[s] and discuss only the legal issues raised by the case.” Id.

The plaintiffs contend that the defendants have not conceded the plaintiffs’ version of the facts for purposes of this appeal. We disagree. The defendants do not dispute the plaintiffs’ account of the events of February 10, 1996. Nor do they dispute the plaintiffs’ account of what the defendants knew about the corrupt officers’ criminal activity and what the defendants did (or did not do) as a result of that knowledge. Indeed, both sides rely on the defendants’ depositions for the facts about the defendants’ knowledge and actions. The plaintiffs point to no evidence contradicting those depositions.

It is true that the defendants challenge the district court’s interpretation of the relevant deposition testimony. They challenge, for example, the court’s statement that the defendants “did nothing” in response to the rumors of criminal activity. But this is not the sort of factual dispute that will preclude interlocutory review. The district court stated its understanding of the evidence in the course of answering a purely legal question — whether the facts alleged establish that the defendants violated the plaintiffs’ clear constitutional rights.⁴ The same legal question is now presented on appeal. The defendants have merely argued that, in answering the question, this court should consider the facts actually testified to in the relevant depositions, and not the district court’s characterization of those facts. This seems right to us, given that the depositions are uncontradicted.

In sum, this appeal raises a pure question of law. Interlocutory review is therefore proper.

Ill

The question whether the facts asserted by the plaintiffs demonstrate that the defendants violated their clearly established constitutional rights breaks down into two parts: (1) whether the plaintiffs have shown a violation by the defendants of a constitutionally protected right, and (2) whether a reasonable police supervisor would have understood that the defendants’ conduct constituted such a violation. See, e.g., Shehee, 199 F.3d at 299-300. The standard of review is de novo. See, e.g., id. at 299.

It seems clear that Owens, Redd, Hatch-er, and Radford violated the plaintiffs’ constitutional rights. Liability under § 1983 cannot be based on the doctrine ofrespondeat superior, however, see, e.g., id. at 300, so the plaintiffs must show that Anderson. Terry. Ferency, and Tate personally violated their rights. For supervisory liability to attach, the defendants must be shown to have encouraged the violation of the plaintiffs’ rights “or in some other way directly participated in it.” Id. (internal quotation marks omitted). “At a minimum,” the defendants must have “implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Id. (internal quotation marks omitted).

Stated differently, supervisory liability will attach if the defendants possessed information revealing a “strong likelihood” of unconstitutional conduct by subordinate officers but did nothing to prevent the misconduct, thereby causing harm to the plaintiffs. See Doe v. City of Roseville, 296 F.3d 431, 439 (6th Cir.2002), cert. denied, 537 U.S. 1232, 123 S.Ct. 1357, 155 L.Ed.2d 196 (2003); Doe v. Claiborne County, Tenn., 103 F.3d 495, 513 (6th Cir. 1996). In such circumstances, the defendants are said to have exhibited “deliberate indifference” to violations of the plaintiffs’ constitutional rights.

Taking the facts of the present case in the light most favorable to the plaintiffs, it is fair to say that the defendants knew, during the relevant time period,⁵ that officers under their command were probably stealing from citizens. Each of the defendants had heard rumors of criminal activity by officers in the platoon; each of the defendants was aware that certain officers were making large numbers of drug arrests without recovering significant amounts of cash; and each of the defendants, possibly excepting Sgt. Terry, knew of citizens’ complaints of theft by officers of the third platoon. The defendants might not have known with certainty that specific officers were committing robberies, but the testimony leaves little doubt that they knew of a “strong likelihood” of criminal activity by officers under their supervision.

“[S]imple awareness of employees’ misconduct,” however, “does not lead to supervisor liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir.2003). The key question here is whether the defendants acquiesced in the rogue officers’ violation of the plaintiffs’ rights.

In answering that question, we are guided by undisputed evidence that sergeants and lieutenants in the Detroit Police Department are not responsible for investigating criminal activity by their subordinate officers. According to several witnesses from within the department, police supervisors in Detroit are neither trained nor instructed to look for evidence of criminality when reviewing officers’ activities. Supervisors are expected to keep their eyes open for “anything amiss,” but they focus on ensuring that reports are complete and accurate and that officers’ time has been spent efficiently and productively. Discovery of criminal activity by subordinate officers is ordinarily made through the receipt of complaints from citizens. A supervisor’s responsibility upon receiving a complaint is to report it to the Internal Affairs Division; Internal Affairs then handles the investigation. Investigation by Internal Affairs — not by supervisors — is the tool by which the Department attempts to uncover criminality on the part of its officers.

Given these facts, we do not think the defendants’ failure to investigate the corrupt officers amounts to acquiescence in the officers’ misconduct or reflects indifference to violations of-the plaintiffs’ rights. The defendants were entitled to rely on Internal Affairs to perform its assigned function. The defendants’ responsibility was to report specific complaints of criminality or misconduct that they themselves observed. None of the defendants personally observed any misconduct. Ferency and Tate received specific complaints and duly reported them. . Ferency also reported generalized rumors of criminal activity. It was the reports to Internal Affairs that led, in time, to the officers’ prosecution.

Unlike Ferency and Tate, Anderson and Terry received no specific complaints from citizens and made no reports to Internal Affairs. We are faced, therefore, with the question whether Anderson and Terry should have reported the widespread rumors of corruption or their own suspicions that certain officers were corrupt. In the circumstances of this case, we do not think the Constitution required such reports. Anderson believed — not unreasonably, given the Department’s policies — that specific complaints had been reported by other supervisors. Anderson and Terry also had discussions with Ferency about the rumors and suspicions the latter had reported to Internal Affairs. Thus, Anderson and Terry had reason to understand that Internal Affairs had been alerted to the probable improprieties. Their failure to file cumulative reports — based only on rumor and surmise — does not, we believe, evince deliberate indifference. At worst, the silence of Anderson and Terry was “neglectful,” and “that is not enough for section 1983 liability.” Claiborne County, 103 F.3d at 513.

There has been no showing, moreover, that additional reporting of rumors would have prevented the plaintiffs’ injury. The Internal Affairs investigation of the 6th Precinct took upward of two years. Even if there were evidence that additional reporting might have hastened the investigation, we could not conclude that the rogue officers would have been apprehended before February 10, 1996, a date only six months or so after the misconduct began. If the defendants’ inaction did not cause the plaintiffs’ harm—that is, if the plaintiffs would have been victimized regardless of any additional reporting—there can be no supervisory liability. See, e.g., Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir.1998); Cantu v. Rocha, 77 F.3d 795, 807 (5th Cir.1996).

Unlike Taylor v. Michigan Dep’t of Corrections, 69 F.3d 76, 81 (6th Cir.1995), and Hill v. Marshall, 962 F.2d 1209, 1213 (6th Cir.1992), cert. denied, 509 U.S. 903, 113 5. Ct. 2992, 125 L.Ed.2d 687 (1993), this is not a case in which the defendants “personally had a job to do, and ... did not do it.” The record demonstrates that it was not the defendants’ job to investigate criminal activity by subordinate officers. Indeed, none of the witnesses whose depositions are in the record testified that the defendants should have investigated the officers or otherwise intervened. The defendants’ responsibility was to ensure that Internal Affairs was alerted to the problem, and this was done. We see no violation by the defendants of the plaintiffs’ constitutional rights.⁶

The order denying the defendants’ motion for summary judgment is REVERSED, and this case is REMANDED for further proceedings consistent with this opinion.

1 . As the dissent notes, there is no evidence that Lt. Ferency - or Lt. Tate, for that matter - was requested or advised by Sgts. Anderson or Terry to report allegations of wrongdoing to Internal Affairs. Neither is there evidence that Sgts. Anderson or Terry received any acknowledgment that Internal Affairs was addressing the issues that had been raised. We have never supposed otherwise. On the other hand, we have never found any basis in the record for supposing that Sgts. Anderson and Terry believed that whoever took a citizen complaint would fail to notify Internal Affairs or that Internal Affairs would fail to investigate. To the contrary, Sgt. Anderson’s testimony that he assumed Internal Affairs would be notified of any complaint and would investigate it stands uncontradicted.

2 . In November of 1996 — nine months after the arrests of Lynn and Beauchamp — Tate took a complaint from a man who said he had been robbed by Owens and another officer. Tate was later charged with testifying falsely before a grand jury in connection with this complaint. He was acquitted.

3 . We shall refer to Anderson, Terry, Ferency, and Tate as “the defendants,” because they are the only defendants involved in this appeal.

4 . The district court denied the motion for summary judgment on the basis of its answer to that legal question. It did not deny the motion on the ground that there are genuine issues of material fact. A denial on the latter basis alone would not be immediately appeal-able. See, e.g., Turner v. Scott, 119 F.3d 425, 427-28 (6th Cir. 1997).

5 . The relevant time period is from the second half of 1995, when Owens and Redd apparently began their criminal activity, through February 10, 1996, when Lynn and Beau-champ were robbed and arrested.

6 . In light of our conclusion that the plaintiffs have not shown a violation of a constitutional right by the defendants, we are not called upon to decide whether a reasonable supervisor would have understood the defendants’ conduct to be unconstitutional.