Whitson v. Hanna

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 5, 2024
• Docket: 23-1084
• Status: Published

Opinion

Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 5, 2024

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

HOLLIS ANN WHITSON, as guardian ad litem for Peatinna Biggs,

Plaintiff - Appellant,

v. No. 23-1084

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SEDGWICK; SHERIFF CARLTON BRITTON, in his official capacity; THOMAS HANNA, in his individual and official capacities; LARRY NEUGEBAUER, in his individual and official capacities,

Defendants - Appellees,

----------------------------------------

RIGHTS BEHIND BARS; NATIONAL POLICE ACCOUNTABILITY CENTER; THE SOUTHERN CENTER FOR HUMAN RIGHTS; MACARTHUR JUSTICE CENTER,

Amici Curiae. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:18-CV-02076-DDD-SKC) _________________________________ Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 2

Sean Ouellette, Public Justice, Washington, D.C. (Ellen Noble and Alexandra Z. Brodsky, Public Justice, Washington, D.C., and David Fisher and Jane Fisher-Byrialsen, Fisher & Byrialsen, PLLC, Denver, Colorado, with him on the briefs), for Appellants.

Jonathan N. Eddy (Eric M. Ziporin, with him on the brief), SGR, LLC, Denver, Colorado for Appellees.

Jessica Ring Amunson and Mary Marshall, Jenner & Block LLP, Washington, D.C.; filed a brief on behalf of Appellants, for Amici Curiae Rights Behind Bars, The National Police Accountability Project, The Southern Center for Human Rights, and The Macarthur Justice Center.

_________________________________

Before HARTZ, PHILLIPS, and CARSON, Circuit Judges. _________________________________

HARTZ, Circuit Judge. _________________________________

Sheriff Thomas Hanna of Sedgwick County, Colorado, sexually assaulted an

intellectually disabled prisoner while transporting her between county jails. The

victim, Peatinna Biggs, filed this civil-rights suit under 42 U.S.C. § 1983 by and

through her guardian ad litem, Plaintiff Hollis Ann Whitson, against Sedgwick

County, the Sedgwick County Sheriff’s Department, and Sheriff Hanna in his

individual and official capacities. The district court granted the motion of the County

and the Sheriff’s Department (the municipal defendants) to dismiss the complaint

against them, reasoning that the County could be liable only if “the challenged

conduct [had] been taken pursuant to a policy adopted by the official or officials,”

and “Hanna’s actions were not pursuant to Department policies, but in direct

contravention of them.” Whitson v. Bd. of Cnty. Comm’rs (Whitson I), No. 18-CV-

02076, 2020 WL 13660757, at *5 (D. Colo. Apr. 17, 2020) (internal quotation marks

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omitted). Hanna was then found liable by a jury in his individual capacity. Whitson

appeals the dismissal of the claims against the municipal defendants, which are

legally equivalent to claims against Hanna in his official capacity.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse. Sheriff Hanna’s

actions fell within the scope of his policymaking authority regarding the custody and

care of prisoners and subjected the municipal defendants to liability.

I. BACKGROUND

A. Factual Background

Because the district court dismissed the claims against the municipal

defendants on the ground that the complaint failed to state a claim against them, we

assume the truth of the factual allegations of the complaint. See Gann v. Cline, 519

F.3d 1090, 1092 (10th Cir. 2008). On August 10, 2016, Ms. Biggs was incarcerated

in the Sedgwick County Jail. She is an adult with an intellectual disability. The jail

was run by Sheriff Hanna, the highest ranking law-enforcement officer in Sedgwick

County. Hanna told his Deputy Sheriff Larry Neugebauer that he was going to

transfer Ms. Biggs to the Logan County Jail using his personal vehicle.1 Hanna gave

Ms. Biggs her street clothes and ordered her to change into them. “Deputy

Neugebauer knew it was highly unusual to have an inmate change . . . into street

1 At Hanna’s trial there was evidence that Sedgwick County had previously followed the “Matron Program,” which required a female to accompany all female detainees during jail transports by male officers, but Hanna discontinued the program. See Whitson v. Hanna (Whitson II), No. 118-CV-02076, 2023 WL 2570224, at *5 (D. Colo. Mar. 6, 2023). Page 3 Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 4

clothes before being transferred.” Joint App. at 25. At about 12:15 p.m. he saw

Sheriff Hanna load Ms. Biggs, who was handcuffed, into the front passenger seat of

his vehicle.

Instead of transporting her to the Logan County Jail, Sheriff Hanna brought

Ms. Biggs into his home. With a gun in his holster, he offered to pay her $60 to have

sex with him. She refused. He then sexually assaulted her. His gun remained visible

on a coffee table throughout the assault. After the assault Hanna “threatened Ms.

Biggs that if she told anyone about what he had done she would spend the rest of her

life in prison.” Id. at 27. At about 12:51 p.m. he told the dispatcher that he was taking

Ms. Biggs to the Logan County Jail. After driving her there he deposited $20 into her

commissary account.

While the assault was occurring, Deputy Neugebauer drove past Hanna’s

house on his way to and from his lunch break and saw Hanna’s empty vehicle parked

outside his home on both occasions. He reported the incident to the Logan County

District Attorney’s Office on August 22. Because of the threat by the sheriff, Ms.

Biggs had not reported the incident. The District Attorney opened an investigation,

and two days later Hanna was criminally charged with sexual assault on an at-risk

adult, sexual conduct in a correctional institute, soliciting prostitution, and first-

degree official misconduct. Hanna was later removed from office.

Neither the County of Sedgwick nor the Sedgwick County Sheriff’s

Department had any policy in place to oversee and monitor the actions of Sheriff

Hanna. “This lack of oversight allowed former Sheriff Hanna’s actions to go

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unchecked and unmonitored throughout his term as the highest ranking law

enforcement officer.” Joint App. at 33.

B. Procedural Background

Plaintiff Whitson filed suit in the United States District Court for the District

of Colorado against multiple defendants, including the municipal defendants and

Sheriff Hanna in his individual and official capacities.2 After the district court

granted the municipal defendants’ motions to dismiss, the claims against Hanna

proceeded to trial. The jury rendered an $8.25 million verdict against him in

compensatory and punitive damages.

The original judgment was entered against Hanna in his individual and official

capacities. Plaintiff Whitson moved to alter or amend the final judgment to explicitly

bind the municipal defendants, pointing out that the judgment against Sheriff Hanna

in his official capacity is a judgment against the municipal defendants. See Porro v.

Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (“Suing individual defendants in their

official capacities under § 1983 . . . is essentially another way of pleading an action

against the county or municipality they represent.”). The municipal defendants, in

2 The district court ruled that Sedgwick County is not a proper defendant in the case because “[p]ursuant to the Colorado Constitution, the County is a separate and distinct entity from the Sheriff’s Department [and] . . . does not have the legal authority to control or supervise the Sheriff and the Sheriff’s deputies.” Whitson I, 2020 WL 13660757, at *5. This decision should be reconsidered on remand. See Chavez v. Bd. of Cnty. Comm’rs., 426 F. Supp. 3d 802, 813 (D. Colo. 2019) (“[W]hen a Monell claim is based on a sheriff-made policy, any distinction between suing the sheriff’s office versus suing the county becomes purely theoretical, because the county will pay regardless.”). Page 5 Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 6

turn, moved to clarify the judgment to say that the official-capacity claims did not

survive the motions to dismiss. The district court granted the municipal defendants’

motion, concluding that Hanna’s conduct could not be imputed to the municipality

because “the assault was wholly unrelated to the realm of his grant of authority with

respect to transportation of prisoners” and he was “advancing a purely personal

agenda.” Whitson v. Hanna (Whitson II), No. 118-CV-02076, 2023 WL 2570224, at

*4 (D. Colo. Mar. 6, 2023) (internal quotation marks omitted).

II. DISCUSSION

A. Liability of municipal defendants

The central question before us is whether a final policymaker’s assault of a

county prisoner in the course of carrying out official duties for which he was charged

with setting policy subjects the municipal defendants to liability. We answer yes.

A municipal government is not liable for every constitutional violation by one

of its officers or employees. Although a municipality is a “person” subject to suit

under § 1983 for constitutional violations, it “cannot be held liable solely because it

employs a tortfeasor—or, in other words, a municipality cannot be held liable under

§ 1983 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691 (1978). Rather, a municipality is responsible only for (1) actions taken by

subordinate employees in conformity with preexisting official policies or customs

and (2) actions taken by final policymakers, whose conduct “can be no less described

as the official policy of a municipality.” Seifert v. Unified Gov’t of Wyandotte

Cnty./Kansas City, 779 F.3d 1141, 1159 (10th Cir. 2015) (internal quotation marks

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omitted); see Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281, 1283

(10th Cir. 2007) (Gorsuch, J.) (While municipalities are liable for official policy

decisions, “this is hardly the only basis available for assigning municipal liability.”

Municipalities are “equally answerable for actions undertaken by their final

policymakers, whether or not those actions conform to their own preexisting rules.”);

id. at 1287 (“Actions taken by a municipality’s final policymakers, even in

contravention of their own written policies, are fairly attributable to the municipality

and can give rise to liability.”).

The motive of the policymaker is irrelevant. The important thing is that the

policymaker is responsible for an unconstitutional act. As the Supreme Court has said:

[P]roof that a municipality’s legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably. Similarly, the conclusion that the action taken or directed by the municipality or its authorized decisionmaker itself violates federal law will also determine that the municipal action was the moving force behind the injury of which the plaintiff complains.

Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405 (1997) (emphasis added); see

Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion of Justice

Brennan) (municipal liability may attach to “a single decision to take unlawful action

made by municipal policymakers.”). The decision on which liability is based need not

“reflect[] implementation of a generally applicable rule,” Brown, 520 U.S. at 406,

which is how we usually think of a policy decision. As we stated in Simmons, “An act

by a municipality’s final policymaking authority is no less an act of the institution

than the act of a subordinate employee conforming to a preexisting policy or

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custom,” 506 F.3d at 1285, and therefore “[a]ctions taken by a municipality’s final

policymakers . . . are fairly attributable to the municipality,” id. at 1287.

One must keep in mind, however, that “‘municipal liability attaches only

where the decisionmaker possesses final authority to establish municipal policy with

respect to the action ordered.’” Beedle v. Wilson, 422 F.3d 1059, 1068 (10th Cir.

2005) (brackets omitted and emphasis added) (quoting Pembaur, 475 U.S. at 481

(plurality opinion of Brennan, J.)). Only then can we say that the final policymaker’s

actions “are fairly attributable to the municipality.” Simmons, 506 F.3d at 1287. A

municipality is an artificial person. But in certain respects it can be identified with

the final policymakers who have authority to control its actions. As we understand

controlling precedent, when an official takes action over which he or she has final

policymaking authority, the policymaker is the municipality, so it is fair to impose

liability on that entity for that action.

In Simmons the administrator of a county nursing home brought a § 1983

action alleging unlawful termination by the board of the county’s health-care special-

services district that operated the nursing home. See id. at 1283. The trial court held

that the health-care district could not be held liable because the alleged constitutional

violation by the board in terminating the administrator violated the board’s own

reduction-in-force (RIF) policy. We rejected that defense, conducting a two-step

inquiry: “It is undisputed before us that the Board was the final policymaker on

personnel matters for the District. It is also undisputed that Ms. Simmons’s

employment was terminated pursuant to the Board’s own actions.” Id. at 1286.

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Because the Board possessed final authority over the unlawful action, the decision

was “no less chargeable as an official act of the District than one taken pursuant to

the District’s written RIF policy.” Id. Otherwise, municipalities would be immune

from liability whenever their policymakers abused the authority conferred on them.

“Such a rule of law would . . . serve to undermine rather than enhance Section 1983’s

purposes.” Id. at 1285.

So too here. Sheriff Hanna was the final policymaker for the municipal

defendants with respect to the care of county prisoners, including their transportation.

By Colorado statute the sheriff “shall have charge and custody of the jails of the

county, and of the prisoners in the jails, and shall supervise them himself or herself

or through a deputy or jailer.” Colo. Rev. Stat. Ann. § 30-10-511; see Whitson II,

2023 WL 2570224, at *4 (“[I]t is undisputed that transportation of prisoners is within

the realm of the county sheriff’s policymaking authority.”). Hanna’s actions with

respect to prisoner Biggs were undoubtedly within the scope of activities for which

he was to set policy.

Our conclusion in this case finds strong support in the decisions by other

circuits. Those decisions have repeatedly held that a policymaker need not be

motivated by legitimate policy goals for conduct to fall within final policymaking

authority. We discuss several such decisions.

In Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996), a county sheriff raped an

attempted-murder suspect after an interrogation at her home. See id. at 583–84.

Although the court of appeals reversed the judgment against the county because it

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had been denied its right to a jury trial, it rejected the county’s argument that it could

not be liable for the rape “because the Sheriff’s actions did not constitute a policy of

the County . . . because they violated well-established County policy.” Id. at 585–86.

The court explained that “a single decision may create municipal liability if that

decision were made by a final policymaker responsible for that activity.” Id. at 586

(internal quotation marks omitted). “When a final policy maker makes the relevant

decision, and when that decision is within the sphere of the policy maker’s final

authority, the existence of a well-established, officially-adopted policy will not

insulate the municipality from liability.” Id. (internal quotation marks omitted). The

sheriff’s “actions were those of the County” because “the county sheriff is the

county’s final policymaker in the area of law enforcement” and “his relationship with

[the victim] grew out of the attempted murder investigation and . . . he used his

authority over the investigation to coerce sex with her.” Id. (internal quotation marks

omitted). The court concluded that “[t]he fact that rape is not a legitimate law

enforcement goal does not prevent the Sheriff’s act from falling within his law

enforcement function.” Id. We do not see how that decision could be consistent with

the position of the municipal defendants in this case.

For similar reasons the court of appeals in Turner v. Upton Cnty., Tex., 915

F.2d 133 (5th Cir. 1990), rejected the county’s argument that it could not be liable for

a county sheriff’s decision to conspire to subject the plaintiff “to trial on false

charges bolstered by fabricated evidence and perjured testimony,” and to attempt “to

coerce her to change her plea from not guilty to guilty.” Id. at 135. “Where a final

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policymaker abuses the powers vested in his position to the detriment of a citizen,”

said the court, “that abuse can be the basis for suit being brought [against the county]

under section 1983.” Id. at 137 n.3.

The Sixth Circuit has also recognized that a municipality may be liable for a

single act of misconduct by a policymaker that was not authorized by some general

policy. In Meyers v. City of Cincinnati, 14 F.3d 1115, 1117 (6th Cir. 1994), a city

employee was fired in violation of his right to free speech for making statements

criticizing affirmative action. Observing that “[n]o municipal official in his right

mind would advocate . . . a general policy [of disciplining City employees for

exercising their rights of free speech],” the court said that the city would be liable

even for an “isolated incident” so long as the decision to punish the employee for

exercising his constitutional rights “was made by the government’s authorized

decisionmakers.” Id. at 1117–18 (internal quotation marks omitted). And in

Moldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009), the circuit court held that

the city “may be held liable under § 1983 for the failure to disclose exculpatory

evidence and the destruction of evidence from [the plaintiff’s] first trial, even though

those actions were not taken pursuant to an overarching policy,” so long as the

decisionmaker was “responsible for establishing final government policy respecting

[the] activity.” Id. at 394 (internal quotation marks omitted).

Similar misconduct by the ultimate policymaker led the Eighth Circuit to

affirm municipal liability in Dean v. Searcey, 893 F.3d 504 (8th Cir. 2018). In that

case the Sheriff “gave oxygen” to a “reckless investigation” by knowingly approving

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improper investigatory tactics including wrongful arrests and interrogations. Id. at

512–13. And recently, in Felts v. Green, 91 F.4th 938 (8th Cir. 2024), the court

upheld the liability of the City of St. Louis based on the decision of the president of

the Board of Aldermen to block from his official Twitter account a citizen who had

criticized him. It explained that “[m]unicipal liability may be imposed for a single

decision by municipal policymakers who possess final authority to establish

municipal policy with respect to the action ordered.” Id. at 942 (internal quotation

marks omitted). The president’s “unilateral” and “unreviewable” decision to block a

user who personally criticized him was therefore imputed to the municipality. Id. at

944. But cf. Dahl v. Rice Cnty., Minn., 621 F.3d 740, 743 (8th Cir. 2010) (County

was not liable for an incident in which the sheriff lost his temper with a deputy and

struck him in the chest. “Although a policy can be inferred from a single decision, no

such deliberative action occurred. There is no evidence that this single incident of

[the sheriff] losing his temper represents a policy of [the sheriff for the county].”

(internal quotation marks omitted)).

Two more appellate decisions complete our survey. In Botello v. Gammick,

413 F.3d 971 (9th Cir. 2005), the Ninth Circuit held that the county could be liable

for the efforts of the district attorney to retaliate against the exercise of free-speech

rights by a former investigator. The district attorney allegedly tried to sabotage the

plaintiff’s future job prospects by calling a future employer “to dissuade it from

hiring [the plaintiff]” by making “false allegations about [the plaintiff’s] character

and performance at his previous job.” Id. at 974. The court held that the district

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attorney’s “administrative acts” were taken in the prosecutor’s capacity “as a

policymaker for the County.” Id. at 979. And the Eleventh Circuit in Mandel v. Doe,

888 F.2d 783 (11th Cir. 1989), affirmed that the county delegated to a physician’s

assistant “final policymaking authority with respect to medical affairs at [a] road

prison,” id. at 793, so that the county was liable when the physician’s assistant

provided “grossly deficient [medical] treatment” resulting in permanent physical

impairment to the plaintiff, id. at 787; see id. at 794.

The circuit-court decisions relied upon by the district court and municipal

defendants are readily distinguishable from the case before us because the public

official was not specifically charged with regulating (and setting policy for) the

activity on which the claim was based.

Thus, in Lankford v. City of Hobart, 73 F.3d 283 (10th Cir. 1996), where the

municipality was held not liable for the police chief’s “private, rather than public,

acts of sexual harassment” against two dispatchers, id. at 287, the chief “had no

authority to make any policy on behalf of the City including terms or conditions of

employment,” id. at 285 (internal quotation marks omitted). The lack of final

policymaking authority easily doomed any claim that the municipality was liable.

In Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989), the county assessor made

repeated sexual advances toward a female deputy assessor, often while intoxicated.

See id. at 812. He became “hostile” toward her and “scrutinize[ed] her work more

closely than the work of other employees” when she rebuffed his advances, and he

eventually terminated her. Id. She sued the county assessor and the county under 42

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U.S.C. § 1983 for retaliatory firing and sexual harassment.3 See id. at 811. This court

imputed liability to the county for her termination but not for the sexual harassment.

It explained that the county assessor’s “act of firing plaintiff was an act of the County

because [he] had final authority to set employment policy as to the hiring and firing

of his staff.” Id. at 818. But the assessor’s sexual misconduct was disconnected from

his official authority. “Those acts did not concern any official terms of employment,

such as job title or description, salary levels, or other conditions that Wadley could

establish only because the County delegated final policy authority over those matters

to him.” Id. at 820. We said that “the County should not be liable for [the assessor’s

acts of harassment] unless they were so widespread and pervasive as to establish a

‘custom’ within his office.” Id. (Indeed, the jury had been instructed that the County

would be liable for the assessor’s acts of sexual harassment only if they “were part of

a pattern of action sufficient to establish custom or policy” of the County. Id. at 819

n.16.).

Roe v. City of Waterbury, 542 F.3d 31 (2d Cir. 2008), is the principal case

relied on by both the district court and the municipal defendants for the proposition

that a municipality is not liable for unconstitutional action by the policymaker when

the policymaker (in that case, a mayor) is pursuing purely personal ends. The facts in

that case, however, are, to say the least, unusual. Before he was elected mayor of the

City of Waterbury, Philip Giordano met a woman who “provided Giordano with

3 The plaintiff also sued under Title VII, but the analysis of that claim is not relevant to this case. Page 14 Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 15

sexual favors in exchange for money.” Id. at 34. After being elected mayor he

continued to see the woman and eventually asked that she “introduce younger women

to him.” Id. She brought two pre-teens to him and, for nearly a year, Giordano

sexually abused them “on numerous occasions at the mayor’s office, at his home, and

in his city-issued police cruiser.” Id. at 33. To arrange the sexual encounters, he used

cell phones paid for and issued by the City. See id. at 34. The children sued Giordano

and the City of Waterbury. While Giordano was held liable in his personal capacity,

the Second Circuit affirmed the dismissal of claims against the City. See id. at 41.

The “critical inquiry” was “whether the government official [was] a final

policymaker with respect to the particular conduct challenged in the lawsuit.” Id. at 37.

The plaintiffs argued that the mayor was the “final policymaker of the City in the

areas of law enforcement, safety, and social issues; and as a result he had final

policymaking authority over the area of conduct that included his abusive acts.” Id.

The court was not persuaded, explaining that “decisions to sexually abuse young

children . . . are not in any way related to the City’s interests.” Id. at 38. Although the

mayor had “generally broad” policymaking authority, “a finding of general

policymaking power on the part of the Mayor was not sufficient for municipal

liability to attach” because he had no “policymaking authority with respect to the acts

of sexual abuse he committed.” Id. “An official acts wholly outside his official

policymaking capacity,” said the court, “when he misuses his power to advance a

purely personal agenda.” Id. at 41.

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We have no quarrel with the outcome in Roe. The mayor’s interactions with

the two children had nothing to do with his official duties. The only connections

between his being mayor and his sexual assaults were that he arranged to be with the

children by making calls on his mayoral cell phone and some of the assaults were in

his office and his official car. It would be quite a stretch to say that the mayor

“possesse[d] final authority to establish municipal policy with respect to” his actions

with the children. Beedle, 422 F.3d at 1068 (internal quotation marks omitted). On

the other hand, we see no support for the proposition that conduct by a policymaking

official that would otherwise lead to municipal liability cannot be attributed to the

municipality when the official acts for purely personal reasons. The Supreme Court

has spoken forcefully on the issue, saying, “proof that a municipality’s legislative

body or authorized decisionmaker has intentionally deprived a plaintiff of a federally

protected right necessarily establishes that the municipality acted culpably. Similarly,

the conclusion that the action taken or directed by the municipality or its authorized

decisionmaker itself violates federal law will also determine that the municipal action

was the moving force behind the injury of which the plaintiff complains.” Brown,

520 U.S. at 405 (emphasis added). A rule under which a municipality could escape

liability whenever a policymaker motivated by purely personal considerations

violates constitutional mandates would “serve to undermine rather than enhance

Section 1983’s purposes.” Simmons, 506 F.3d at 1285.

The factual context presented by this case is quite different from the contexts

of the cases offered to dispute municipal liability. Here the victim was in the custody

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of the official and the official was statutorily charged with supervising the victim’s

care. See Colo. Rev. Stat. Ann. § 30-10-511 (the sheriff “shall have charge and

custody of the jails of the county, and of the prisoners in the jails, and shall supervise

them himself or herself or through a deputy or jailer.”). In this circumstance, we see

no escape from the conclusion that Sheriff Hanna possessed “final authority to

establish municipal policy with respect to the action ordered.” Beedle, 422 F.3d at

1068 (emphasis added and internal quotation marks omitted). Indeed, he had not only

the authority, but the responsibility, to set policy with respect to the treatment of

prisoners in his custody.

A few words about the dissent. It suggests that it is bad policy to expose a

municipality to what could be enormous liability for actions by policymakers who are

motivated solely to achieve personal gratification without any intent to serve the

municipality’s interest. It therefore rejects the appellate decision holding a

municipality liable for sexual assaults by a sheriff. And it appears to distinguish the

other out-of-circuit decisions cited above in support of our approach on the ground

that the misconduct may not have been motivated just by the desire for self-

gratification (perhaps because conduct motivated solely by personal reasons is not

considered within the scope of employment). But the misconduct in those cases may

well have been motivated by purely personal concerns—for example, did the sheriff

fabricate evidence because of a personal vendetta against the defendant or did the

alderman infringe the free-speech rights of a constituent only to protect his personal

reputation—and, more importantly, the opinions in those cases did not address

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motive, presumably because the motive was irrelevant. If liability depends on

whether there is a possible “proper” motivation for the official’s action, the likely

unseemly consequence is that the only victims who cannot obtain relief from a

municipality for a policymaker’s misconduct are victims of sexual assault, for which

there could never be a legitimate motive. Would that be such good policy?

In any event, the theory of municipal liability we are imposing is hardly a

stranger to the law and is fully consistent with Monell. Monell rejected respondeat

superior liability for municipalities. In other words, a municipality would not be

liable simply because of misconduct by employees acting within the scope of their

employment. Rather, the conduct must be “fairly attributable to the municipality.”

Simmons, 506 F.3d at 1287. We said above that “when an official takes action over

which he or she has final policymaking authority, the policymaker is the

municipality, so it is fair to impose liability on that entity for that action.” Supra at 8.

In other words, when the policymaker is the alter ego of the municipality, liability is

appropriate, regardless of the miscreant’s motives or whether the conduct was within

the scope of employment. The Supreme Court has recognized this narrow basis of

liability outside of respondeat superior. Outlining relevant agency law in the course

of determining when an employer can be liable under Title VII for a hostile work

environment, the Court noted that an employer can be liable “even where employees

commit torts outside the scope of employment,” when the employee’s “high rank in

the company makes him or her the employer’s alter ego.” Burlington Industries, Inc.

v. Ellerth, 524 U.S. 742, 758 (1998). Surely, a municipality can be liable for the torts

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of its alter ego. And surely, the Sheriff of Sedgwick County is the alter ego of the

Sheriff’s Department.

This does not mean that a municipality is liable for all misconduct by a sheriff.

If Hanna had raped a customer at a bar after work, there would likely be no municipal

liability. As explained above, the sheriff must have final policymaking authority with

respect to the actions taken. See Beedle, 422 F.3d at 1068. Given that Hanna raped a

prisoner in his custody while transporting the prisoner to another jail, that

requirement was undoubtedly satisfied.4

B. Further proceedings

There remains the question whether the municipal defendants are bound by the

existing judgment against Hanna under law-of-the-case doctrine or preclusion

principles. We leave to the district court to determine in the first instance whether—

and, if so, to what extent—the municipal defendants are bound by the existing

judgment. We do, however, make two observations that may be of some use. First,

the judgment against Hanna includes both compensatory and punitive damages, but

punitive damages are not recoverable against the municipal defendants. See City of

Newport v. Fact Concerts, 453 U.S. 247, 270–71 (1981). Second, there is some

support for the proposition that preclusion principles may apply in certain

circumstances in the context of a sheriff-municipality relationship. See Russell v.

4 The recent decision in Doe v. Burleson County, 86 F.4th 172 (5th Cir. 2023), cited by the dissent, is readily distinguishable on this ground. The judge “did not possess final policymaking authority in any area relevant to” the alleged sexual assault. Id. at 176. Page 19 Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 20

SunAmerica Sec., Inc., 962 F.2d 1169, 1175 (5th Cir. 1992) (observing that “most

other federal circuits have concluded that employer-employee or principal-agent

relations may constitute grounds for application of res judicata.”).

III. CONCLUSION

We REVERSE and REMAND for proceedings in the district court consistent

with this opinion.

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23-1084, Whitson v. Hanna PHILLIPS, J. dissenting.

I would affirm the district court’s dismissal of the claims against Sedgwick County

because Sheriff Hanna did not act as a final policymaker in his decision to sexually abuse

Ms. Biggs. I agree with the district court’s conclusion that Sheriff Hanna advanced a

purely personal agenda in committing the sexual assault and acted outside his authorized

law-enforcement “realm” of setting policy for the transportation of prisoners. Whitson v.

Hanna (Whitson II), No. 1:18-CV-02076, 2023 WL 2570224 at *4 (D. Colo. Mar. 6,

2023) (quoting Randle v. City of Aurora, 69 F.3d 441, 448 (10th Cir. 1995)). As the

district court put it so well, sexual assault “is not within the policymaking authority a

county sheriff has.” Id.

I disagree with the majority’s characterization that Sheriff Hanna’s sexual assault

occurred “while transporting [Ms. Biggs] between county jails” and “in the course of

carrying out official duties for which he was charged with setting policy[.]” See Majority

Op. at 2, 6, 19. In fact, Sheriff Hanna interrupted the transport between the county jails

by stopping at his house and taking Ms. Biggs into his home to sexually assault her. The

jail transport resumed only after he completed the sexual assault.

I agree that Sheriff Hanna had policymaking authority over the jail transportation

of detainees like Ms. Biggs, and that legitimately exercising this authority could result in

municipal liability under § 1983. For instance, if the sheriff had instructed deputies to

tighten handcuffs one extra click during transport out of concern for escape risks and a

detainee suffered nerve damage, the sheriff’s exercise of policymaking authority should Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 22

qualify as municipal policy. Or if concerned that detainee transports were taking too long,

the sheriff had instructed deputies not to fasten detainees with safety belts to speed their

entry and exit from sheriff vehicles and a detainee was injured in a head-on collision, the

sheriff’s exercise of policymaking authority should again qualify as municipal policy.

The voters may have elected an unsuitable sheriff, but the sheriff, however misguided,

would be acting within a sheriff’s realm there. But those sorts of policies bear no

resemblance to Sheriff Hanna’s supposed “policy” of halting detainee jail transport for

whatever time he needed to commit a sexual assault. The majority opinion goes too far

for me in approving as municipal policy a rogue sheriff’s one-time, secret action that is

unquestionably outside of the sheriff’s realm and legitimate policymaking authority.

In justifying its holding, the majority opinion relies on a conglomeration of three

distinct categories of final-policymaker cases. In each category, the policymaker is acting

under color of law (and is thus suable under § 1983), as Sheriff Hanna was here. In the

first category, which by my reading covers the bulk of final-policymaker cases, the

policymaker makes wrong decisions—but within the realm of his or her authority—and

causes a constitutional injury to another person. In the second category, which involves

far fewer cases, the policymaker—again within the realm of his or her authority—acts in

his employment in an illegal way, for instance, by falsifying evidence and the like while

investigating crimes. In the third category, which involves far fewer cases even yet, the

final policymaker acts outside the authorized realm by committing crimes, such as sexual

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assaults, solely for personal gratification. For these third-category cases, I cannot see how

the municipality is the driving force of the constitutional violation.1

Though the majority opinion doesn’t lack for case citations, the cases from the

first two categories offer little help. None of the cited Supreme Court cases concern the

third-category situation. So that leaves us with the circuit courts. I dispute the majority’s

declaration that its “conclusion in this case finds strong support in the decisions by other

circuits.” Majority Op. at 9.

I. The Majority Opinion’s Third-Category Cases

As support for its holding, the majority opinion relies heavily on Bennett v. Pippin,

74 F.3d 578 (5th Cir. 1996). In Bennett, a woman shot her husband after he allegedly

assaulted her. Id. at 583. The woman was arrested in another county after informing the

authorities there. Id. The county sheriff drove her back to her house, surveyed the scene

of the shooting, then left to attend to other law enforcement duties. Id. After arrest and

booking, a deputy took the woman home. Id. Later, the sheriff returned alone to “assuage

[her] previously expressed concern that [her husband’s] friends would attack her” and

because “he was mildly aroused by the manner in which Ms. Bennett had touched him as

1 The majority opinion notes that “[n]either the County of Sedgwick nor the Sedgwick County Sheriff’s Department had any policy in place to oversee and monitor the actions of Sheriff Hanna.” Majority Op. at 4. It in turn blames this “lack of oversight,” id., for Sheriff Hanna’s being “unchecked and unmonitored,” id. at 5. But the county has limited options, as noted by Simmons v. Uintah Health Care Special Service District, 506 F.3d 1281 (10th Cir. 2007), which the majority cites for the proposition that “[m]unicipalities are ‘equally answerable for actions undertaken by their final policymakers, whether or not those actions conform to their preexisting rules.” Majority Op. at 7 (quoting Simmons, 506 F.3d at 1287). 3 Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 24

he lit a cigarette for her.” Id. From there, the sheriff’s and woman’s accounts greatly

differed. Id. But at the civil bench trial involving § 1983 claims, the court found that “the

Sheriff raped Ms. Bennett in the manner described in her testimony.” Id. at 584. This

testimony included Ms. Bennett’s account that the sheriff raped her after telling her that

“he was the Sheriff and could therefore do what he pleased.” Id. at 583. The woman

asserted a § 1983 claim against the county alleging that the sheriff had acted as its final

policymaker. Id. at 581.

The Fifth Circuit began by noting that “[o]ur cases make clear that under Monell, a

single decision may create municipal liability if that decision were made by a final

policymaker responsible for that activity.” Id. at 586 (cleaned up). Next, the court

declared that “in Texas, the county sheriff is the county’s final policymaker in the area of

law enforcement, not by virtue of the delegation by the county’s governing body but,

rather, by virtue of the office to which the sheriff has been elected.” Id. (citations

omitted). Critically, the court then stated that

the Sheriff’s actions were those of the County because his relationship with Bennett grew out of the attempted murder investigation and because, as we will explain, he used his authority over the investigation to coerce sex with her. The fact that rape is not a legitimate law enforcement goal does not prevent the Sheriff’s act from falling within his law enforcement function.

Id. (citation omitted).

So if Bennett were a Tenth Circuit case, it might well control the present case. But

as an out-of-circuit case, Bennett must earn its way into our caselaw by its persuasive

value. For me, Bennett hasn’t earned its place. Other circuits have rejected it, and we

should too. I agree with the cases below criticizing Bennett and declining to follow it.

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II. A Circuit-Court Survey

Below, I collect the cases I have found raising issues akin to those decided in

Bennett and our present appeal.

In Wooten v. Logan, a case the district court relied on but the majority opinion

ignores, a “mentally handicapped minor” alleged that the then-sheriff and his female

friend, who had befriended the girl’s mother, conspired to rape the girl. 92 F. App’x 143,

144 (6th Cir. 2004). Having won the mother’s trust, the woman took the minor girl for an

overnight stay, but as prearranged, the sheriff activated his lights and stopped the car. Id.

Soon after, the sheriff and his coconspirator had the girl “engage in oral intercourse,

digital penetration and sexual intercourse over a two hour period.” Id. During the sexual

assaults, the sheriff was wearing his uniform, badge, and firearm and acted under his

authority as the county’s chief law-enforcement officer. Id. The sheriff and his woman

friend later pleaded guilty to statutory rape. Id. The district court granted summary

judgment against the plaintiff’s § 1983 municipal-liability claim. Id. at 145. Specifically,

it ruled that “although [the sheriff] was the county’s final policymaker with regard to

enforcement of the law, [the sheriff’s] alleged criminal conduct did not establish or

constitute ‘a municipal policy.’” Id. (cleaned up).

A divided panel of the Sixth Circuit affirmed, ruling that “[t]he district court

properly entered summary judgment in favor of the County because [the plaintiff] has not

demonstrated that [the sheriff’s] conduct represented the ‘official policy’ of the County,

as required for the County to be held liable under § 1983.” Id. The court acknowledged

that “[u]nder appropriate circumstances, a single act by a local government official can

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constitute the government’s ‘official policy.’” Id. at 146. It noted that this occurs “where

the official ‘possesses final authority to establish municipal policy with respect to the

action ordered.’” Id. (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)).

But the court ruled that the plaintiff “has not demonstrated that [the sheriff’s] conduct

represented the ‘official policy’ of the County, as she has not shown that [the sheriff] was

acting in a policymaking capacity when he detained and assaulted her.” Id. The court

commented that holding otherwise would “contravene Pembaur’s attempt ‘to distinguish

acts of the municipality from acts of employees of the municipality.’” Id. at 147 (quoting

Pembaur, 475 U.S. at 479).

The Wooten court considered and rejected the Fifth Circuit’s contrary ruling in

Bennett. Id. at 146 n.3. Noting Bennett’s holding that “the rape constituted the county’s

‘official policy,’” Wooten characterized Bennett’s holding as a “brief analysis [that] could

be questioned as effectively providing for respondeat superior.” Id. (citing Bennett, 74

F.3d at 586).

Next, in Roe v. City of Waterbury, the city’s mayor sexually abused minor females

“on numerous occasions at the mayor’s office, in his home, and in his city-issued police

cruiser.” 542 F.3d 31, 33 (2d Cir. 2008). He arranged these meetings with a city-paid cell

phone. Id. at 34. In pursuing § 1983 claims in their lawsuit, the minors contended that the

mayor was the final policymaker “in the areas of law enforcement, safety, and social

issues; and as a result he had final policymaking authority over the area of conduct that

included his abusive acts.” Id. at 37. On this point, the court noted, a plaintiff must show

a municipal official had final policymaking power and that his challenged actions were

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“within that official’s area of policymaking authority.” Id. (citing City of St. Louis v.

Praprotnik, 485 U.S. 112, 123 (1988)).

The Second Circuit upheld the grant of summary judgment for the city, reasoning

that “[d]ecisions to sexually abuse young children are not made for practical or legal

reasons and are not in any way related to the City’s interest.” Id. at 38 (quoting Anthony

v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003)). This meant that “[t]he City

cannot be said to be the ‘moving force’ behind the abuse.” Id. (quoting Bd. of Cnty.

Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997)). The court determined that

the mayor’s actions were “in an area in which he was not a policymaker,” so he “had no

authority to make policy authorizing, condoning, or promoting the sexual abuse of

children.” Id. at 40.

The Second Circuit also rejected the Fifth Circuit’s ruling in Bennett: “In our

view, Bennett cannot be reconciled with Pembaur and Praprotnik’s prohibition against

finding municipal liability based on respondeat superior. Consequently, we decline to

follow the Fifth Circuit’s reasoning with respect to municipal liability under § 1983.” Id.

at 41. It reasoned that “[a]n official acts wholly outside his official policymaking capacity

when he misuses his power to advance a purely personal agenda.” Id.

Next, in Dahl v. Rice County, a deputy sheriff filed a claim under § 1983 after a

dispute with the sheriff about an unauthorized purchase of badges led to a physical

altercation. 621 F.3d 740, 742–43 (8th Cir. 2010). In a meeting to discuss the

unauthorized purchase, the deputy alleged that the “sheriff lost his temper” and “struck

Dahl in the chest with the heel of his hand, causing Dahl to injure his back.” Id. at 742

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(internal quotation marks omitted). The district court granted summary judgment for the

county. Id. at 741.

The Eighth Circuit recited the legal principles of the municipal-liability analysis,

including that “a governmental entity may be held liable if a plaintiff proves that its

policy or custom was the ‘moving force [behind] the constitutional violation.’” Id. at 743

(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). The court further

acknowledged that “[a] policy can be inferred from a single decision taken by the highest

officials responsible for setting policy in that area of the government’s business.” Id.

(citing Praprotnik, 485 U.S. at 123). Applying those standards, the court affirmed on

grounds that “[t]here is no evidence that this single incident of Sheriff Cook losing his

temper represents a policy of Sheriff Cook’s or of Rice County’s” or that the sheriff or

county “maintains a policy or custom of corporal punishment.” Id. (citing Pembaur, 475

U.S. at 483). The court did not cite or discuss Bennett.

Finally, in Doe v. Burleson County, a clerk in the county attorney’s office alleged

that the county judge had sexually assaulted her several times, including twice in his

office. 86 F.4th 172, 174 (5th Cir. 2023).2 She brought § 1983 claims against the judge

and the county. Id. After settling with the judge, the plaintiff went to jury trial against the

county. Id. at 175. This ended in a mistrial after two jurors conversed with the plaintiff.

Id. Before the second trial, the court heard argument on whether the judge “had final

policymaking authority for purposes of Doe’s claim against Burleson County.” Id. This

2 Doe was published on November 9, 2023, after briefing in this case was complete. 8 Appellate Case: 23-1084 Document: 010111075551 Date Filed: 07/05/2024 Page: 29

time, the court concluded that the judge “did not have final policymaking authority for

any area relevant to Doe’s claim against Burleson County.” Id. (cleaned up).

On appeal, the Fifth Circuit determined that though the judge had violated the

plaintiff’s constitutional rights in committing the sexual assaults, the judge “did not

possess final policymaking authority in any area relevant to Doe’s claim,” so it affirmed.

Id. at 176. The court noted that “[a]n unconstitutional governmental policy could be

inferred from a single decision taken by the highest officials responsible for setting policy

in that area of the government’s business.” Id. at 176 (quoting Praprotnik, 485 U.S. at

123). The court described a final policymaker as “one that decides the goals for a

particular city function and devises the means of achieving those goals.” Id. (quoting

Sweetin v. City of Texas City, 48 F.4th 387, 392 (5th Cir. 2022)).

The court recited that the judge had “numerous executive, legislative and

administrative chores in the day-to-day governance of the county.” Id. at 177 (quoting

Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). The court determined

that the plaintiff had failed to show that the judge “possessed the requisite authority as it

relates specifically to the alleged sexual abuse” and commented that “it is hard to imagine

that [the judge] would be considered the ‘ultimate repository of county power’ if he

engages in independent, private sexual assault against another.” Id. (quoting Familias

Unidas, 619 F.2d at 404). Though the plaintiff alleged that the judge summoned her to his

office to assist with county business, the court noted that even if he had authority to

summon her there, the judge was “engaging in his own independent misconduct,

unrelated to his position as County Judge.” Id. at 178 n.2.

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The court cited its earlier decision in Bennett just once, for the proposition that

“[w]hen a final policy maker makes the relevant decision, and when that decision is

within the sphere of the policy maker’s final authority, the existence of a well-

established, officially-adopted policy will not insulate the municipality from liability.” Id.

at 176–77 (quoting Bennett, 74 F.3d at 585). Though Doe did not explicitly overrule

Bennett, it did not attempt to distinguish Bennett on the facts, either. By my reading, if

the Fifth Circuit had applied Bennett’s rule to the facts of Doe, the Fifth Circuit should

have come out the other way and reversed the district court’s dismissal of the plaintiff’s

claims against the county. Because it did not, Doe casts doubt on Bennett’s continued

validity.

III. Tenth Circuit Cases of Interest

Though the Tenth Circuit has not until now had occasion to weigh in on a similar

case to those discussed above, it has decided cases in which governmental officials have

acted outside their realm for personal gratification. In my view, our cases point away

from Bennett, not toward it.

For starters, in Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989), a former

employee in a County Assessor’s Office filed § 1983 claims against the assessor and

county, premised on sexual harassment committed by the assessor, who was also her

supervisor. Id. at 811. The district court entered judgment for the County after a jury trial.

Id.

On appeal, this court considered “whether the County can be held liable under

Section 1983 for the Assessor’s acts.” Id. Among the “largely undisputed” facts were

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these: the assessor “repeatedly made sexual advances toward plaintiff and other female

employees, often while he appeared to be intoxicated” and “[t]hose advances included

propositioning plaintiff, requesting that she meet him at his house or at other secluded

locations, making obscene gestures toward her, and pinching her on the buttocks.” Id. at

812. We noted that “the jury reasonably could have concluded that [the assessor’s]

conduct toward plaintiff discriminated against [the plaintiff] because of her sex and

thereby deprived her of the right to equal protection of the laws.” Id. at 815.

We affirmed the district court’s finding of county liability for the plaintiff’s

termination from employment, but we reversed the finding of county liability for the

assessor’s acts of sexual harassment. Id. at 818. We acknowledged that § 1983 municipal

liability can occur “for the acts of a municipal official only when the official possesses

‘final policymaking authority’ to establish municipal policy with respect to the acts in

question.” Id. (citing Pembaur, 475 U.S. at 483; Praprotnik, 485 U.S. at 123). But we

noted that those cases “emphasized that municipal liability is limited to acts that are,

properly speaking, acts of the municipality—that is, acts which the municipality has

officially sanctioned or ordered.” Id. (cleaned up). Regarding the sexual-harassment

claims, we reversed the district court’s denial of the County’s motion for judgment

notwithstanding the verdict, because the “acts of sexual harassment complained of here

were private rather than official acts” and “were personal in nature without any indicia of

being ‘officially sanctioned or ordered.’” Id. at 819–20 (quoting Pembaur, 475 U.S. at

480).

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Finally, in Lankford v. City of Hobart, two female dispatchers of the city’s police

and fire departments sued under § 1983, alleging sexual harassment and discrimination

by the police chief. 73 F.3d 283, 285 (10th Cir. 1996). The alleged harassment included

“unwelcome sexual advances, obscene remarks, and inappropriate physical touching of

their bodies.” Id. After finding no official city policy favoring sexual harassment, we

turned to whether “the official charged with sexual harassment [had] ‘final policy making

authority’ with respect to the acts in question as a matter of state law.” Id. at 286 (quoting

Pembaur, 475 U.S. at 483). That left the question “whether [the police chief’s] acts can

be characterized as a deliberate choice of the city and whether he had final policy making

authority for the City of Hobart.” Id. We affirmed the district court’s grant of summary

judgment on the city’s behalf, reasoning that “[t]his case exemplifies a situation where

the defendant was committing private, rather than public, acts of sexual harassment.” Id.

at 287.

These cases all reject municipal liability for the private acts of a final policymaker

that are taken outside the realm of that official’s duties. So in my view, they point against

adopting Bennett’s rule.

IV. The District Court’s Decision

The district court issued a thorough decision accounting for these precedents. It

acknowledged that “a county can be liable for the actions of its policymakers, even when

those actions violate a previously established policy.” Whitson II, 2023 WL 2570224, at

*4. But the district court wisely noted that “not every action by a policymaker is

attributable to the entity, which is the implication of the plaintiff’s position.” Id. (first

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citing Pembaur, 475 U.S. at 482 (“[W]e . . . emphasize that not every decision by

municipal officers automatically subjects the municipality to § 1983 liability. Municipal

liability attaches only where the decisionmaker possesses final authority to establish

policy with respect to the action. . . .”); then citing Randle, 69 F.3d at 448 (municipality

may be liable for one-time decision by final policymaker if “the policy decision

purportedly made by the official [wa]s within the realm of the official’s grant of

authority”)).

In my view, the district court got it right by concluding that “the transportation of

prisoners is within the realm of the county sheriff’s policymaking authority” but that the

municipality defendants “are not being sued because Mr. Hanna transported Ms. Biggs;

they are being sued because he sexually assaulted her. That is not within the

policymaking authority a county sheriff has.” Id. The district court did not err by

concluding that Sheriff Hanna’s actions were “wholly outside” his authority and lawful

realm because he “misuse[d] his power to advance a purely personal agenda.” Id.

(quoting Roe, 542 F.3d at 41).

For these reasons I respectfully dissent and would affirm the district court’s order

granting the motion to dismiss the claims against Sedgwick County. I disagree with the

majority opinion’s holding that the sheriff can create a municipal policy with his one-

time, illegal, and secret act of sexually assaulting a detainee by interrupting a detainee’s

jail transport and improperly taking her inside his home to commit a sexual assault. With

that as our circuit’s new rule, I see no way for a municipality to do anything but write

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checks—strict liability for the municipality despite its legal inability to constrain a rogue

sheriff determined to gratify his sexual desires.