Jones v. Wellham

Filed: February 11, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 95-2882(L)
(CA-93-771-H)

Erin Kathleen Jones, et al,

Plaintiffs - Appellants,

versus

George W. Wellham, III, et al,

Defendants - Appellees.

O R D E R

The Court amends its opinion filed January 14, 1997, as

follows:
On page 2, section 5, line 3 -- the title for John F. Breads

is corrected to read "Senior Assistant County Attorney."

On page 2, section 5, line 8 -- the County Attorney's name is

corrected to read "Phillip F. Scheibe."
On page 8, first full paragraph, line 5 -- "includes" is cor-

rected to read "include."

On page 11, second full paragraph, line 4 -- the "state Dis-

trict Attorney's Office" is corrected to read "the State's Attor-
ney's Office.
 - 2 -

On page 11, second full paragraph, line 6 -- the phrase "Dis-

trict Attorney" is corrected to read " State's Attorney."

On page 13, second full paragraph, line 4 -- the citation is

corrected to read "Shaw v. Stroud."

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERIN KATHLEEN JONES,
Plaintiff-Appellant,

v.

GEORGE W. WELLHAM, III; ANNE
ARUNDEL COUNTY; MAXWELL V.
FRYE, JR.; WILLIAM S. LINDSEY,
No. 95-2882
Defendants-Appellees,

and

MICHAEL DENNIS ZIEGLER; PRESENTLY
UNKNOWN AND UNDETERMINED
SUPERVISORY POLICE OFFICERS,
Defendants.

ERIN KATHLEEN JONES,
Plaintiff-Appellee,

v.

MICHAEL DENNIS ZIEGLER,
Defendant-Appellant,

and
No. 95-2966

GEORGE W. WELLHAM, III; ANNE
ARUNDEL COUNTY; MAXWELL V.
FRYE, JR.; WILLIAM S. LINDSEY;
PRESENTLY UNKNOWN AND UNDETERMINED
SUPERVISORY POLICE OFFICERS,
Defendants.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey II, Senior District Judge.
(CA-93-771-H)

Argued: September 26, 1996

Decided: January 14, 1997

Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Phillips wrote the opin-
ion, in which Judge Murnaghan and Judge Ervin joined.

_________________________________________________________________

COUNSEL

ARGUED: William Francis Gately, HOWELL, GATELY, WHIT-
NEY & CARTER, Towson, Maryland, for Appellant. John Francis
Breads, Jr., Senior Assistant County Attorney, OFFICE OF LAW, Annapo-
lis, Maryland; Robert Charles Verderaime, VERDERAIME &
DUBOIS, P.A., Baltimore, Maryland, for Appellees. ON BRIEF:
H. Thomas Howell, Kathleen D. Leslie, HOWELL, GATELY,
WHITNEY & CARTER, Towson, Maryland, for Appellant. Phillip F.
Scheibe, County Attorney, OFFICE OF LAW, Annapolis, Mary-
land; Ronald A. Silkworth, Glen Burnie, Maryland, for Appellees.

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Claiming that she was raped in 1990 by then-Anne Arundel County
police officer Michael Ziegler, Erin Jones brought various § 1983 and
state law claims against Ziegler, the County, and George Wellham,
then County Police chief, in Maryland state court. Following removal

2
of the action, the claims against Ziegler were first tried on the merits
to a jury which found for Jones, awarding her substantial compensa-
tory and punitive damages. Ms. Jones then added federal and state
claims against former Police Chiefs Maxwell Frye and William Lind-
sey, following which the County and the three Police chief-defendants
moved for, and were granted, summary judgment as to all claims
against them. We affirm both on Jones' appeal from the grant of sum-
mary judgment against her and on Ziegler's appeal from the judgment
entered against him on the jury verdict.

I.

In the early morning of November 15, 1990, Officer Ziegler
stopped a pickup truck driven by Ms. Jones, then age 23, on ostensi-
ble suspicion of driving while intoxicated. After questioning and
observing Jones, Ziegler asked her to get into his police cruiser, told
her that he would not arrest her, and said that he would drive her
home. He did not, instead driving past the turnoff to her house and
into a church parking lot. When Jones questioned him as to why he
had gone past her house, Ziegler explained that he had to check some-
thing at the church.

Ziegler got out of the car at the church, and removed some of his
clothing. According to Jones, when he returned to the car, he forcibly
removed Jones' underwear and then forced her to have sex with him.
According to Ziegler, Jones removed her underwear and willingly had
sex with him. Ziegler then drove Jones home and dropped her off.

Once home, Jones called 911 to report the rape, but hung up after
saying very little. The 911 operator traced her call and sent police
units to her address; when they arrived, she explained that she had
been raped by a uniformed officer. The police took her to the hospital
for treatment and a medical examination.

As a result of Jones' report to the police, Ziegler's police powers
were immediately suspended, and he was ordered to surrender his
weapon and badge. After an investigation the state's attorney charged
him with second-degree rape, but he eventually pleaded to the lesser
charge of misconduct in office, for which he received a one-year sus-

3
pended sentence and five years' probation. He also agreed to resign
from the police force.

The incident with Jones was not the first time Ziegler had been
involved in sex-related conduct with a citizen while on duty. In 1979
he had used his badge to gain entrance to a woman's apartment in the
middle of the night, asking to use her telephone. The woman, Brenda
Forsythe, later told the police that Ziegler removed his shirt and asked
her if she could help him by getting a blood stain out of it. Ziegler
then sat on the sofa, took off his shoes and gunbelt, and when For-
sythe came near the sofa, Ziegler began fondling her. When, as she
claimed, she resisted, Ziegler responded that if she did not have sex
with him, he would have her arrested for prostitution. According to
Forsythe, Ziegler then followed her to her bedroom, where he dis-
robed, tried to force her to perform oral sex on him, and, when she
refused, raped her. After he dressed and used one of Forsythe's towels
to clean himself, he left, saying that Forsythe could "call him."

Ms. Forsythe went the next day to the police station where she told
her story of the previous night's events to then-Police Chief Maxwell
Frye. Frye ordered a complete criminal investigation of the incident
and assigned it to a Sergeant Chaplin. Forsythe also was allowed to
meet, at her request, with a female officer, Detective Susan Benson
of the Sexual Assault Unit. Benson took Forsythe for a medical exam-
ination, and eventually took her formal statement, which contained all
of the above-described details. Officers also went to Forsythe's apart-
ment and collected physical evidence, including the towel Ziegler
used.

Forsythe then picked Ziegler out of a police lineup, and she eventu-
ally passed a police-administered polygraph test regarding the alleged
rape. Further, police radio records confirmed that Ziegler was in the
vicinity of Forsythe's apartment at the time she says the rape
occurred. Forsythe's neighbor also gave a statement regarding For-
sythe's demeanor on the morning after the incident which corrobo-
rated Forsythe's own statement.

Ziegler met with the officers investigating the Forsythe incident,
was read his rights, and after answering a few preliminary questions,

4
invoked the Fifth Amendment. He never gave a statement regarding
his version of the incident.

In late August of 1979, Chief Frye had informed Ziegler that he
was being suspended without pay pending the results of the Forsythe
investigation. Meanwhile, Detective Benson and Sergeant Chaplin
had met with State's Attorney Warren Duckett. After Benson pres-
ented all the evidence she had, she recommended that rape charges be
filed. The others disagreed, and Duckett concluded that because he
was not confident that the available evidence respecting the non-
consensual nature of the incident would suffice to convict, he
declined to prosecute Ziegler for any criminal violation. Duckett noti-
fied Chief Frye of his decision.

Chief Frye was given the criminal investigation file. On September
7, Frye met with Ziegler to conclude the department's internal affairs
investigation of the incident. Ziegler, accompanied by his attorneys,
made no statement but agreed to accept whatever punishment the
Chief chose. Chief Frye apparently made no further inquiry, but
accepted Ziegler's offer and decreed the following punishment: (1)
one month's suspension without pay; (2) transfer of Ziegler to desk
duty on the Telephone Reporting Service; (3) loss of personal patrol
vehicle; and (4) that he consult the Police Chaplain for counselling.
In a deposition given for this case, Frye testified that, in setting this
penalty, he did not dispute the veracity of the criminal file materials,
including Forsythe's statement.

The following June, Frye put Ziegler back on street duty with a car,
gun, and uniform. That month, Ziegler visited Forsythe's workplace,
but she was not there at the time. When she learned Ziegler had been
there, Forsythe called Chief Frye and expressed her concern that he
was back on street duty. Frye, according to his memorandum of the
call, told her not to talk to many people about the incident and that
if she kept calling, she would be sued.

Frye retired in the mid-1980s, and was replaced by William Lind-
sey, who was himself eventually replaced by George Wellham. Well-
ham was Chief of Police in 1990 when Ziegler allegedly raped Jones.

Ms. Jones then brought this action in Maryland state court seeking
damages for the alleged rape by Ziegler and originally naming

5
Ziegler, Chief Wellham and the County as defendants. Her claims
against Ziegler alleged liability under 42 U.S.C. § 1983 for violation,
under color of state law, of her constitutional rights under the Fourth
and Fourteenth Amendments and under state law for common law
battery. Her claims against the County and Chief Wellham alleged
liability on various alternative theories under § 1983 and state com-
mon law. Following removal of the action to federal court, the claims
against the County and Chief Wellham were severed from those
against Ziegler, and those against Ziegler proceeded to a jury trial in
which the jury found him liable and awarded Jones compensatory
damages of $650,000 and punitive damages of $400,000. Following
entry of judgment against Ziegler on this jury verdict, Jones was per-
mitted to file an amended complaint which added to those claims still
pending for disposition against the County and Chief Wellham claims
against former Chiefs of Police Frye and Lindsey in their individual
and official capacities. In her amended complaint, Jones sought to
impose liability upon the County under various federal and state law
claims: under § 1983, for municipal liability based upon the official
conduct of the three police chiefs in retaining Ziegler on the police
force, either as a matter of County-condoned "custom or practice," or
as ad hoc policy choices of the police chiefs attributable to the
County; under state common law, for vicarious liability for the battery
committed by Ziegler and for the negligent conduct of the police
chiefs in allowing Ziegler to return to and remain on street duty; and
under state statutory law imposing on the County an obligation to
indemnify any of its employee-defendants against whom liability was
imposed. Finally, the complaint sought under § 1983 to impose super-
visory liability upon the police chiefs in their individual capacities for
their conduct relative to Ziegler's retention on duty.

On motions of the County and the three police chiefs, the district
court granted summary judgment dismissing all of Jones' § 1983
claims against those parties; dismissed Jones' statutory indemnifica-
tion claim against the County; and declined to exercise supplemental
jurisdiction over Jones' state law claims against the County seeking
to impose vicarious liability for Ziegler's battery and the police
chiefs' negligence in allowing Ziegler to remain on duty.

These appeals by Jones in No. 95-2882 and by Ziegler in No. 95-
2966 followed and were consolidated in this court.

6
II.

In No. 95-2882, Ms. Jones challenges only the dismissal of her
§ 1983 municipal liability claim against the County and her § 1983
supervisory liability claim against Police Chief Frye.1 We take those
in order.

A.

Jones' municipal liability claim against the County, as pleaded and
sought to be supported against the County's motion for summary
judgment sought, though confusedly, to impose liability on alternative
theories: (1) that Jones' 1990 rape by Ziegler was directly caused by
the County's condonation, with deliberate indifference to its conse-
quences, of a known "custom or usage" of its police chiefs in failing
to impose adequate discipline for sexually-related conduct such as
Ziegler's; (2) that Jones' 1990 rape by Ziegler was directly caused by
the deliberately indifferent decisions of Chief Frye in 1979 and 1980,
first to retain Ziegler in service, then to return him to street duty,
despite knowledge of his propensity for sexual misconduct while on
duty, which decisions are attributable to the County as ad hoc policy
choices of Frye as authorized final policy maker in police personnel
matters.

The district court rejected the "custom or usage" theory of liability
on the basis that the undisputed facts of record failed, as a matter of
law, to show the "persistent and widespread" practice required to
invoke that theory. See Spell v. McDaniel, 824 F.2d 1380, 1386 (4th
Cir. 1987). On this appeal, Jones has specifically "acquiesce[d]" in
that ruling. Appellant's Br. 25. She therefore relies solely on her
claim of error by the district court in rejecting her alternative theory
of liability by virtue of Chief Frye's decisions, as final policy maker
for the County, in failing to discharge or at least to keep Ziegler off
_________________________________________________________________

1 She therefore does not challenge the district court's dismissal on the
merits of her § 1983 supervisory liability claims against Police Chiefs
Wellham and Lindsey nor of her state-law indemnification claim against
the County. Neither does she challenge the district court's refusal to
exercise supplemental jurisdiction over her state common law vicarious
liability claim against the County.

7
street duty back in 1979 and 1980 following the Forsythe incident.
We therefore turn to that claim of error.

Jones' specific reliance is on the theory of municipal liability rec-
ognized in Pembaur v. Cincinnati, 475 U.S. 469 (1986). Under that
theory, "municipal liability may be imposed for a single decision by
municipal policy makers under appropriate circumstances," id. at 480,
and "municipal policy makers" include not only a municipality's
"properly constituted legislative body," but also those "officials
`whose acts or edicts may fairly be said to represent official policy.'"
Id. (quoting Monell v. New York City Dept. of Social Servs., 436 U.S.
658 (1978)). Whether a particular official's "acts or edicts" may be
attributed to a municipality as its "policy" depends upon whether the
official "possesses final authority to establish municipal policy with
respect to [the particular act or edict] ordered." Id. 481. Final author-
ity to establish municipal policy in a particular area contemplates
more than "discretion in the exercise of particular functions" in that
area; responsibility "for establishing final policy with respect to the
subject matter in question is required." Id. at 482-484; see also Spell,
824 F.2d at 1386 (implies more than "discretionary authority in purely
operational aspects of government").

Critically, Pembaur dealt only with a "policy" decision by a munic-
ipal official that directly commanded a constitutional violation, see id.
at 484 (Fourth Amendment search). Its specific holding did not, there-
fore, touch official "acts or edicts" that, though not themselves uncon-
stitutional, hence not the immediate cause of constitutional injury,
might be shown to have caused a constitutional violation by others.
That, of course is the factual situation presented in the case at issue,
and for Pembaur's theory of municipal liability to apply here, it must
be considered to reach such decisions as well as those directly com-
manding or effecting constitutional violations. We have not, appar-
ently, ever directly addressed that issue, though we have, of course,
applied Pembaur to single policy decisions that were themselves
unconstitutional, hence were the immediate causes of constitutional
violations. See, e.g., Hall v. Marion Sch. Dist. No. 2, 31 F.3d 183 (4th
Cir. 1994) (unconstitutional firing by school board). Other circuits
have, however, simply assumed Pembaur's application to single pol-

8
icy maker decisions which though not themselves unconstitutional
were the ultimate causes of constitutional violations.2

Because the Supreme Court recently has granted certiorari in Bryan
County v. Brown, ___ U.S. ___, 116 S. Ct. 1540 (U.S. Apr. 22, 1996)
(No. 95-1100), to consider issues that may touch upon whether
Pembaur applies at all to such situations, we will reserve decision on
that threshold question and simply assume for purposes of this case
that, in otherwise appropriate circumstances, Pembaur's single-
decision principle can apply to single policy maker decisions not
themselves unconstitutional, such as those of Chief Frye here in issue.
In making that assumption, we also assume (as did the district court)
that in applying Pembaur to this type situation, the imposition of
municipal liability would require (as it would not with respect to deci-
sions themselves unconstitutional, see City of Oklahoma v. Tuttle, 471
U.S. 808, 822 (1985)), proof of deliberate indifference of the decision
maker to the possible consequences of his decision, hence a "con-
scious choice" of the course of action taken, see City of Canton v.
Harris, 489 U.S. 378, 389 (1989), and a close causal connection
between the decision and the ultimate constitutional injury inflicted.
See id. at 391 (policy choice must have "actually caused" the constitu-
tional violation); Tuttle, 471 U.S. at 823 ("affirmative link"); Spell,
824 F.2d at 1391 ("`almost bound to happen, sooner or later', rather
than merely `likely to happen in the long run'").

Jones' Pembaur claim, as indicated, is that Chief Frye's November
1979 decision not to discharge Ziegler, followed by his June 1980
_________________________________________________________________

2 See, e.g., Brown v. Bryan County, 67 F.3d 1174, 1183-85 (5th Cir.
1995) (municipal liability based upon decision by sheriff to hire deputy
with known record of violence who later committed excessive force vio-
lation in arrest), cert. granted, 116 S. Ct. 1540 (U.S. Apr. 22, 1996) (No.
95-1100); Graham v. Sauk Prairie Police Comm'n, 915 F.2d 1085, 1104
(7th Cir. 1990) (decision by municipal police commission to hire psycho-
logically troubled police officer who later shot arrestee could give rise
to municipal liability if commission aware of psychological problems);
Parker v. Williams, 862 F.2d 1471, 1477, 1480 (11th Cir. 1989) (munici-
pal liability based upon decision of Sheriff to hire jailer with known his-
tory of drug use, mental problems, and indecent exposure who later
raped inmate).

9
decision to return him to street duty, constituted ad hoc policy deci-
sions by an official having final policy making authority with respect
to such personnel matters; that they were made with deliberate indif-
ference to the risks they entailed for local citizens; and that as a proxi-
mate result of these decisions Ziegler was put in a position to and did
rape Jones some ten years later.

The district court, reflecting in a memorandum opinion the general
understanding of Pembaur above outlined as ours, rejected this claim
by summary judgment. Rejection was on the alternative grounds that
as a matter of law on the undisputed material facts: (1) Frye's deci-
sions were not "policy" decisions, but merely discretionary ones not
attributable to the County as its official policy; (2) in any event,
Frye's decisions were not taken in deliberate indifference to the risks
entailed to local citizens; and (3) further, there was not a sufficiently
close causal connection between the decisions and the rape ten years
later to impose liability on the County. J.A. 1154-62 (Memo. op.).

Reviewing the district court's grant of summary judgment de novo,
see Hodge v. Jones, 31 F.3d 157, 163 (4th Cir. 1994), we affirm,
though on somewhat different reasoning.

The district court addressed the question whether Frye's two deci-
sions respecting Ziegler constituted County policy and the question
whether they were taken with deliberate indifference as separate ones.
See J.A. 25-30. Addressing them so, the court first noted, rightly, that
not every decision made by a policy maker in a particular area of gov-
ernment necessarily involves "policy" choice, see Pembaur, 475 U.S.
at 481-82. And, the court then concluded, without elaboration, that
Frye's decisions were merely "ad hoc disciplinary" ones taken in "ex-
ercise of his discretion" which "had no general applicability," hence
did not constitute "actionable official policy." J.A. 26.

Without intending rejection of the district court's first ground of
decision, we turn to the question of whether the actions at issue were
taken with deliberate indifference. The district court concluded upon
extensive review of the record that, as a matter of law, that could not
be found. We agree with that conclusion, and believe that it is upon
that basis that the prior conclusion that the decisions did not constitute
official County policy should be rested. That seems the clear import

10
of City of Canton, where the Court indicated that a municipal decision
that is not itself unconstitutional can only be found to involve the
deliberate choice between alternatives that is the hallmark of "policy"
if it was taken by the policy maker with deliberate indifference to the
rights of potentially affected citizens. 489 U.S. at 389 ("Only where
a [municipality's conduct] evidences a `deliberate indifference' to the
rights of [municipal] inhabitants can such a shortcoming be properly
thought of as a city `policy or custom' that is actionable under § 1983").3

As indicated, we agree with the district court's conclusion that on
the summary judgment record, Frye's decisions respecting Ziegler's
retention and duty status following the Forsythe incident back in 1979
and 1980 could not be found to reflect deliberate indifference. The
district court properly emphasized as the principal basis for its conclu-
sion the results of the internal police investigation of the incident
undertaken under Frye's direction.

Specifically, the court relied on the following undisputed facts.
Following an internal department investigation by two officers desig-
nated for the purpose, their report, essentially reflecting the facts out-
lined in Part I of this opinion, was submitted to the State's
Attorney's Office for consideration of filing rape charges against
Ziegler. The State's Attorney declined to prosecute, for the reason,
as officially reported to then-Chief Frye, that because of the absence
of any signs of trauma or physical injury and the arguable indicia of
consent, he thought the evidence not sufficient to justify the criminal
charge. With this prosecutorial decision in hand, Frye made the deci-
sion to discipline but not discharge Ziegler and, after a six-month
interval, to return him to street duty.

We agree with the district court that on those undisputed facts,
Frye's decisions could not be found to be the result of deliberate
indifference. With the benefit of hindsight, they were clearly unfortu-
_________________________________________________________________

3 The deliberate indifference requirement is not related to the degree of
fault (if any) that may be an element of the ultimate constitutional viola-
tion at issue in this type situation, but exists as a necessary fault basis for
imposing direct, not vicarious, municipal liability for any constitutional
violation by municipal employees that is caused by such policy deci-
sions. See City of Canton, 489 U.S. at 388 & n.8.

11
nate, might perhaps be thought imprudent, or even be found legally
negligent, but that does not suffice; only decisions taken with deliber-
ate indifference to the potential consequences of known risks suffices
to impose municipal liability on the basis that such decisions consti-
tuted official County "policy." See City of Canton, 489 U.S. at 388
& n.7 ("deliberate indifference," rather than "gross negligence" of
policy maker required to impose municipal liability for policy maker
decisions not themselves unconstitutional). That, as indicated, could
not, as a matter of law, be found here.

In any event, we also agree with the district court's alternative
ground of decision: that Frye's 1979 and 1980 decisions respecting
Ziegler's retention and duties could not, as a matter of law, be found
the sufficiently direct cause of Ms. Jones' rape by Ziegler some ten
years later. The causation requirement for imposing municipal liabil-
ity for policy maker decisions not themselves unconstitutional is a
stringent one deriving from the necessity to avoid the effective, but
forbidden, imposition of vicarious liability on municipalities. See
Monell, 436 U.S. at 692-94 (municipal liability imposed only when
"execution of . . . policy . . . inflicts the injury"). The policy must be
"the moving force" behind the ultimate violation, Polk County v.
Dodson, 454 U.S. 312, 326 (1981); there must be an "affirmative
link" between the policy and the violation; mere but-for causation will
not suffice, Tuttle, 471 U.S. at 823. As we have put it: the challenged
policy decision must be one that made the ultimate violation "`almost
bound to happen, sooner or later', rather then merely `likely to happen
in the long run.'" Spell, 824 F.2d at 1391.

We agree with the district court that the causal link between Frye's
decisions in 1979 and 1980 not to discharge Ziegler outright and
Ms. Jones' rape by Ziegler in 1990 is simply too attenuated to satisfy
that stringent causation requirement. Ms. Jones points out that if
Ziegler had been discharged then, he would never have had the oppor-
tunity that later arose to rape her. But, as indicated, mere cause-in-fact
does not suffice to establish the required affirmative link. If that were
the test, every depredation of this sort would give rise to municipal
liability, for every § 1983 claimant harmed by such employee conduct
could "point to something the [municipality] `could have done' to
prevent the unfortunate incident." City of Canton, 489 U.S. at 392.
Ms. Jones further suggests that the Forsythe incident and her rape ten

12
years later were merely the tip of the iceberg; that there must have
been other incidents involving Ziegler of a comparable nature that
revealed the true inevitability of her rape once Ziegler was kept on the
force in 1979. Assuming such incidents would have strengthened
proof of the requisite cause, it suffices to observe that they do not
appear in this record, and cannot of course be assumed. So far as the
record shows, Ziegler was kept on the force following a sexual inci-
dent in 1979 whose circumstances were thought by the responsible
state prosecutor to be too ambiguous to warrant criminal charges and,
after serving on the force for the following ten years without engaging
in any comparable behavior, he raped Ms. Jones while on duty. We
conclude that, as a matter of law, the link between the decision to
keep him on in 1979 and the constitutional violation ten years later
is too remote to impose liability upon the County under relevant
§ 1983 principles.

B.

Turning to the district court's dismissal by summary judgment of
Ms. Jones' § 1983 claim against Frye in his individual capacity, we
find no error.

While a municipal liability claim based upon a particular official's
attributed conduct and a supervisory liability claim against that offi-
cial based upon the same conduct are not perfectly congruent, see
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994), each requires proof
both of the official's deliberate indifference and of a close affirmative
link between his conduct and a resulting constitutional violation by a
subordinate. See id.

That being so, the supervisory liability claim against Frye was
properly rejected for the same reasons properly relied upon by the dis-
trict court in rejecting the municipal liability claim.

III.

In No. 95-2966, Ziegler claims reversible error in three district
court rulings: (1) improper jury instruction on the constitutional claim
against him; (2) failure properly to deal with the risk of jury taint by

13
prejudicial media publicity; (3) refusal to ask a requested voir dire
question of potential jurors. We take these in order.

A.

Treating Ms. Jones' § 1983 claim as one alleging a violation of her
Fourth Amendment right not to be subjected to excessive force in the
course of an arrest, Ziegler assigns as error the district court's refusal
to instruct the jury, as requested, that his conduct must be judged
under the "objectively unreasonable/excessive force" standard pre-
scribed in Graham v. Connor, 490 U.S. 386 (1989). This of course
misconstrues the nature of the constitutional claim. Because the harm
inflicted did not occur in the course of an attempted arrest or appre-
hension of one suspected of criminal conduct, cf. Tennessee v.
Garner, 471 U.S. 1, 7-9 (1985), the claim was not one of a Fourth
Amendment violation, but of the violation of the substantive due pro-
cess right under the Fourteenth Amendment not to be subjected by
anyone acting under color of state law to the wanton infliction of
physical harm. See Ingraham v. Wright, 430 U.S. 651, 673 (1977)
(excessive force in paddling school child); Doe v. Taylor Ind. Sch.
Dist., 15 F.3d 443, 450-52 (5th Cir. 1994) (sexual abuse by govern-
ment employee). The district court instructed the jury that if it found
that Ziegler forcibly raped Ms. Jones under the circumstances she
claimed, this would constitute a violation of her constitutional rights
under the Fourteenth Amendment.4 J.A. 380. This effectively defined
the Fourteenth Amendment right to bodily integrity specifically at
issue in this case and accurately stated what had to be found from the
evidence in order to impose liability for its violation. The district
court did not err by refusing to give the requested instruction on "ob-
jective reasonableness."
_________________________________________________________________

4 The court actually instructed that forcible rape would constitute a
deprivation of both Fourth and Fourteenth Amendment rights. J.A. 380
While, as indicated, the evidence did not implicate the Fourth Amend-
ment, the court's technical error in this respect could not have prejudiced
Ziegler.

14
B.

Ziegler next challenges the court's refusal to inquire of jurors
whether any had read either of two newspaper articles containing
allegedly prejudicial material. One article referred to the 1979 For-
sythe incident which the district court had ruled was inadmissible as
evidence in the case against Ziegler. The second article mentioned
that one of Ziegler's impeachment witnesses had failed a lie-detector
test concerning his testimony. Although Ziegler asked the district
court to question the jurors as to whether any had read these articles,
the court, following consideration of the parties' submissions,
declined to do so.

In United States v. Hankish, 502 F.2d 71 (4th Cir. 1974), we held
that

the procedure required by this Circuit where prejudicial pub-
licity is brought to the court's attention during a trial is that
the court must ascertain if any jurors who had been exposed
to such publicity had read or heard the same. Such jurors
who respond affirmatively must then be examined . . . to
determine the effect of the publicity. However, if no juror
indicates, upon inquiry made to the jury collectively, that he
has read or heard any of the publicity in question, the judge
is not required to proceed further.

Id. at 77 (quoting Margoles v. United States, 407 F.2d 727, 735 (7th
Cir. 1969)). Ziegler seizes upon the emphasized language to assert
that the district court erred in failing to make the necessary inquiry.
We disagree.

As Hankish also held, a district court need not raise the question
with the jurors unless under the totality of circumstances there is a
"substantial reason to fear prejudice." Id.; Aston v. Warden, Powhatan
Correctional Ctr., 574 F.2d 1169, 1172 (4th Cir. 1978). And, whether
there is such a "substantial reason," hence a necessity to make inquiry,
is committed in the first instance to the district court's informed dis-
cretion. United States v. Jones, 542 F.2d 186, 194 (4th Cir. 1976);
United States v. Grande, 620 F.2d 1026, 1031 (4th Cir. 1980); see
also Marshall v. United States, 360 U.S. 310, 312 (1959). Here, the

15
district court, after consideration of the relevant circumstances, deter-
mined that there was not substantial reason to fear prejudice, hence
no necessity to raise the question with the jury. Reviewing that deter-
mination for abuse of discretion, we find none.

The district court properly noted that only one of the eight jurors
sitting in the case was a resident of the county in which the newspa-
pers were circulated; that the court had more than once admonished
the jurors that they should avoid media publicity about the trial; and
that there was no indication before the court that those admonitions
were not being obeyed. J.A. 325-27. It was further manifest from
materials before the court that the articles were only published on the
last day of trial after all the testimony had been received and that they
were not prominently featured as headline items or in sensational
terms but as relatively short items in the newspapers' interiors
devoted mainly to factual accounts of open proceedings in the case.

Under these circumstances, we cannot find abuse of discretion in
the district court's determination that the risk (1) that any juror had
actually read the articles, and (2) that if any had, their reading had
actually prejudiced Ziegler's case, was not substantial enough to com-
pel raising the question with all jurors. To make such an inquiry, of
course, entails a countervailing risk which district courts must factor
into their discretionary determination: that the existence of possibly
prejudicial publicity about which no juror may have been aware
would now be revealed, or, if already revealed, ascribed a greater sig-
nificance than its contents actually warranted. See Virgin Islands v.
Dowling, 814 F.2d 134, 137 (3d Cir. 1987) ("Moreover, in banc ques-
tioning risks spreading taint where none exists."); cf. United States v.
Sababu, 891 F.2d 1308, 1334 (7th Cir. 1989) (noting countervailing
risk of questioning when jury exposed to material not properly in evi-
dence).

Here, the timing of the publicity's appearance, its inconspicuous
placement in the newspapers, its brief and mainly innocuous content,
the long odds against any jurors having actual access to it, coupled
with the presumption that jurors would properly observe the court's
admonitions to avoid or disregard media publicity about the case,
warranted the district court's discretionary decision to rely on its
admonitions and not risk countervailing prejudice by revealing the

16
publicity's existence. See Grande, 620 F.2d at 1031 (no inquiry
required where allegedly prejudicial material appeared in only one
paragraph of 26-paragraph article); id. (admonitions, while not ipso
facto dispositive, properly weighed in calculating risk of prejudice).

C.

Ziegler's final claim of error is in the district court's refusal to ask
one of his requested jury voir dire questions: whether, in deciding the
case, the jurors would follow their consciences rather than the law if
they disagreed with the law.

Ziegler cites no authority for the proposition that this particular
question must, if requested, be put to a civil jury (presumably in all
cases, since it has no evidence-specific relevance). None of the cases
he cites as authority dealt with this broad, general question, nor with
questions even roughly comparable to it in their generality. The form
of voir dire questions to be submitted under Fed. R. Civ. P. 47(a) (as
under parallel Fed. R. Crim. P. 24(a)) is committed to the discretion
of the district courts and there is of course no compulsion to ask every
question requested by counsel. United States v. Robinson, 804 F.2d
280, 283 (4th Cir. 1986) (under parallel criminal rule). Abuse of dis-
cretion in declining to ask a particular question occurs only if the fail-
ure hinders a party's ability to make reasonable use of its challenges.
United States v. Brown, 799 F.2d 134, 136 & n.3 (4th Cir. 1986)
(abuse only where party "denied the right to some surface information
about prospective jurors which might furnish a basis for challenge").
That surely cannot be said about the refusal to ask this broad, general
question, particularly where, as here, the general substance of the
question was implicit in others that were asked: whether there was
"any reason that I have not covered . . . that you feel would affect
your ability to be an impartial juror;" whether "anyone . . . has any
religious or moral scruples that would affect your ability to . . . serve
as a juror in this case." J.A. 56, 57.

Accordingly, the district court did not abuse its discretion in declin-
ing to ask this requested question of the jurors.

In No. 95-2882: AFFIRMED
In No. 95-2966: AFFIRMED

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