Palmquist v. Selvik

RIPPLE, Circuit Judge,

concurring in part and dissenting in part.

I agree that the judgment against Sergeant Selvik must stand. I respectfully do not concur, however, with my colleagues that the jury in this ease was unreasonable as a matter of law in imposing liability on the Village of Bensenville.

1.

Although I concur with my colleagues’ disposition of the judgment against Sergeant Selvik, I respectfully disagree with their rationale with respect to the admission of pre-seizure evidence. The majority relies on Sherrod v. Berry, 856 F.2d 802 (7th Cir.1988) (en bane) to hold that Mr. Palmquist’s past statements and conduct are inadmissible. In Sherrod, this court, sitting en banc, held that the reasonableness of a police officer’s fatal response must be examined solely in light of the information the officer possessed at the crucial moment of the incident. That proposition in turn led to the conclusion that evidence that the victim of a police shooting was unarmed when shot is irrelevant, prejudicial *1348and inadmissible. Judge Cummings dissented. In his view, with which I agreed, see 856 F.2d at 808 (Ripple, J., concurring), “the evidence that Sherrod was unarmed [was] relevant as part of the testimony helping the jury understand the type of movement Sher-rod made that precipitated his death.... The mannér in which Sherrod reached into his pocket is of great consequence to the determination of the action — it was this movement that caused Berry to shoot and kill him.” 856 F.2d at 810 (Cummings, J., dissenting).

Today the court applies Sherrod to make it more difficult for a police officer to defend himself against an excessive force claim. See generally Sherrod, 856 F.2d at 809 n. 2 (Cummings, J., dissenting) (predicting the future “havoc” Sherrod will cause police officers trying to establish that they acted in self-defense). Police officers, charged with protecting the citizenry in an increasingly dangerous environment, should not be prohibited from offering evidence that is obviously relevant to the reasonableness of their decision to use deadly force. The evidence proffered in this case is probative of the situation Sergeant Selvik faced at the crucial moment (under Sherrod) that he fired the fatal shots: Mr. Palmquist’s prior expressions of his desire to die at the hands of the police make it more likely that his physical behavior at the scene that night was sufficiently aggressive to create a reasonable belief in Sergeant Selvik’s mind that deadly force was necessary. The majority’s formalistic application of Sherrod, by which it absolutely forbids the admission of this powerfully relevant evidence, makes little sense. Indeed, my colleagues are unwilling, understandably, to live with the logical consequences of their holding: After presenting Sherrod as a per se rule that excludes all evidence that does not occur in the officer’s presence, the court promptly contradicts itself by stating that the magistrate judge could have allowed in preseizure evidence of Mr. Palmquist’s intoxication and marijuana possession because, the court reasons (citing a case predating Sherrod), intoxication “tends to make more probable that the plaintiff acted as the defendant contended he did or that plaintiff otherwise conducted himself in such a manner as to place the defendant reasonably in fear of his life.” Ante, at 1342 (quoting Saladino v. Winkler, 609 F.2d 1211, 1214 (7th Cir.1979)); accord Turner v. White, 980 F.2d 1180, 1182-83 (8th Cir.1992) (citing Saladino and holding that trial court did not abuse discretion in allowing in evidence of intoxication as it was relevant to jury’s assessment of situation that officer confronted). Yet if pre-seizure evidence of intoxication is admissible to show that Mr. Palmquist acted as the officer claimed, then preseizure evidence of his fixed desire to commit suicide by police should be admissible to show the same. The majority’s characterization of Mr. Palm-quist’s mental state, demonstrated by his prior statements and behavior, as “character” evidence is simply unrealistic. See generally 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5233.1 This mischaracterization and the resulting inconsistency will confuse even further this area of the law.

In my view, we need to adopt a more flexible approach to the admissibility of pre-seizure evidence, an approach that recognizes that some evidence may be so probative (and not unduly prejudicial) that it is permissible to admit it to prove the nature of the situation faced by the officer at the time the shot was fired. We need to leave this matter in the hands of the trial judiciary and allow it to make common-sense judgments as to the admissibility of this evidence. Indeed, in Sher-rod, as in this case, we were purportedly applying an abuse of discretion standard of review. Likewise, in Wallace v. Mulholland, 957 F.2d 333, 336 (7th Cir.1992) and Rascon v. Hardiman, 803 F.2d 269, 278 (7th Cir.1986), two cases cited by the majority, we applied an abuse of discretion standard to affirm the trial courts’ decision to exclude similar evidence.

Although I differ with my colleagues on their rigid approach to this evidence, I never*1349theless would affirm the trial court’s decision in this case. Despite the exclusion, the jury nevertheless heard substantial evidence supporting the defense’s theory that Mr. Palm-quist desired to commit suicide by police. The excluded evidence would not have produced a different result in this case. I respectfully submit that this case underlines the need for a more flexible approach to the admission of pre-seizure evidence and, consequently, for more reliance on the capacity of the trial court to determine whether the evidence ought to be admitted.

2.

I respectfully part company from the majority insofar as it holds that liability cannot attach to the Village of Bensenville. Neither party, nor the majority, suggests that the instructions given to the jury misstated the law of municipal liability, as set forth in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Nevertheless,’ the majority reverses the jury’s determination that the facts as presented at trial satisfied the Canton requirements. In so doing, the majority suggests that the only basis for imposing such liability is the municipal defendant’s neglect of its training procedures in the face of a pattern of constitutional violations. This, however, is decidedly not the law. In Canton, the Supreme Court of the United States made clear that “pattern” evidence was but one method of establishing municipal liability. A jury can impose municipal liability, despite the lack of “pattern” evidence, if it finds that an obvious training need was neglected and caused the plaintiff’s death:

But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.

489 U.S. at 390, 109 S.Ct. at 1205 (footnotes omitted).2 I agree with the magistrate judge that, viewing the evidence in the light most favorable to the plaintiff, “the trial record provides overwhelming evidentiary support for the jury’s verdict.” Order at 2. The jury heard that the Village did not require its officers to have any training whatsoever in dealing with persons behaving in an abnormal or irrational manner. Indeed, the jury had the opportunity to hear the three officers at the scene admit that they either did not have or could not recall having any such training. The evidence at trial further demonstrated that it was a normal and frequent occurrence (up to 40% of the work done or 6,400 complaints per year) for the Village’s police officers to have to deal with persons acting in an abnormal manner. In addition, a fail’ reading of the plaintiffs expert testimony establishes that the Village’s lack of training resulted in the inability to cope competently with Mr. Palmquist, thereby causing Sergeant Selvik’s use of excessive force. The expert further testified that the need to train police officers on how to confront irrational individuals is obvious and that such training is accepted police practice.3 The deliberate indifference claim was bolstered by evidence that the individual responsible for police training in the Village did not even know the content of the officers’ training courses. I am convinced from my review of the record, viewing the evidence as required in the light most favorable to the plaintiff, that the jury could have concluded that the Village was deliberately indifferent to the need for “more or different training,” id. at 390, 109 S.Ct. at 1205, in “a relevant re*1350spect,” id. at 389, 109 S.Ct. at 1205. See Russo v. City of Cincinnati, 953 F.2d 1036, 1046-47 (6th Cir.1992) (reversing summary judgment on failure to train claim and citing as grounds the frequency with which the police officers confronted disturbed individuals, the officers’ inability to give specific responses as to the content of their training, and expert testimony regarding the adequacy of city’s training); Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir.1993) (affirming denial of judgment notwithstanding the verdict because evidence showed that (1) officer unconstitutionally used deadly force; (2) the use of force arose in usual and recurring situation with which police officers must deal; (3) there was a causal link between the use of force and inadequate training; and (4) the failure to train demonstrated deliberate indifference).

The majority instead undertakes to reweigh the evidence, citing testimony that basic police training includes a block of instruction on handling situations involving abnormal behavior. The jury had ample reason to reject this testimony and must have agreed with the plaintiffs expert that the officers’ training was inadequate. The majority also asserts that the jury could not have determined that Mr. Palmquist’s death was caused by the Village’s inadequate training, but the plaintiffs expert established a reasonable causal chain: The Village did not train on how to deal with irrational individuals, and the officers improperly dealt with the irrationally behaving Mr. Palmquist, thereby causing his death. Cf. Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 93 n. 6 (1st Cir.1994) (stating that failure to train did not cause assault because there was no evidence that the officers improperly approached mentally handicapped victim, improperly attempted to calm him, or assaulted him because of their lack of knowing how to deal with such a person).4 We must not second-guess the jury with respect to its determinations of both contested fact and credibility.

Most importantly, “in light of the duties assigned to” Sergeant Selvik, Canton, 489 U.S. at 390, 109 S.Ct. at 1205-06, the jury’s determination that the Village shoulder responsibility is especially warranted. The line officers in this case called the sergeant because they needed supervisory assistance in dealing with the difficult situation confronting them. Instead of taking charge of the scene upon arrival, Sergeant Selvik shot and killed Mr. Palmquist within two minutes and fifteen seconds of his arrival. The Village’s police infrastructure did not allow for an appropriate command response to the problem, notwithstanding the line officers’ attempt to get command assistance once they discovered they could not handle the situation alone. The Village was obligated to train its command structure to respond to these situations in an appropriate fashion. Accordingly, I would not second-guess the jury’s determination and would let the judgment stand.

. In her brief, the plaintiff acknowledged that “Paul’s wish or desire to die is not part of [Mr. Palmquist’s] 'character.' " Appellee’s Br. at 25.

. Id. at 390 n. 10, 109 S.Ct. at 1205 n. 10 ("[T]he need to train officers in the constitutional limitations on the use of deadly force can be said to be 'so obvious,' that failure to do so could properly be characterized as ‘deliberate indifference' to constitutional rights.”) (internal citation omitted); see also id. at 396-97, 109 S.Ct. at 1208-09 (O'Connor, concurring in part and dissenting in part) (noting that “it could be shown that the need for training was obvious in one of two ways”).

. The Chicago Police Department has had such training since at least 1977 and provides refresher courses on the subject to its officers.

. The majority faults the plaintiff for not calling into doubt the "actual training” provided by the Village or, phrased another way, the "training which had been received” by the officers. Ante, at 1345-46. In the process, my colleagues suggest that a plaintiff, who happens to find no problem in any of the training actually received by the officers, cannot prove "deficient” training by demonstrating that additional training should have been given in a particular area. Ante, at 1345-46. The Supreme Court, though, has said clearly that a deficiency in training can be proved by showing a need for "more or different training." Canton, 489 U.S. at 390, 109 S.Ct. at 1205 (emphasis added). Indeed, the majority's reasoning suggests that a complete "lack” of training cannot constitute "deficient” training. Under the majority's approach, a municipality could escape deadly force liability by providing absolutely no training on the use of deadly force. In such a case, the plaintiff would not be able to point to any "deficiency” in the training that was actually given. I am convinced that the majority's approach conflicts with controlling Supreme Court precedent. See Canton, 489 U.S. at 390 n. 10, 109 S.Ct. at 1205 n. 10 ("failure” to "train officers in the constitutional limitations on the use of deadly force ... could properly be characterized as 'deliberate indifference’ to constitutional rights”) (emphasis added). My view is that the plaintiff in this case proved a "deficiency” in the Village's training program: the lack of any training whatsoever on dealing with abnormal behavior. As I have noted earlier, the evidence of record permitted the jury to arrive at its verdict on that factual premise.