Valle v. City of Houston

Case: 09-20624 Document: 00511189994 Page: 1 Date Filed: 07/30/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
July 30, 2010

No. 09-20624 Lyle W. Cayce
Clerk

JOSE VALLE, Individually and as Representative of the Estate of Omar
Esparza; ASUNCION VALLE

Plaintiffs - Appellants
v.

CITY OF HOUSTON,
Defendant - Appellee

Appeal from the United States District Court
for the Southern District of Texas

Before JOLLY and GARZA, Circuit Judges and STARRETT * , District Judge.
EMILIO M. GARZA, Circuit Judge:
Omar Esparza was shot and killed by Houston police officers during an
incident at his family’s home. His parents, Plaintiffs-Appellants Jose and
Asuncion Valle (the “Valles”), individually and as representatives of their son’s
estate, sued the City of Houston (“City”) seeking relief under 42 U.S.C. § 1983.
The district court granted summary judgment in the City’s favor on all claims.
For the reasons set forth below, we AFFIRM.
I
On the day of the incident, Esparza—who apparently had been suffering
from depression and anxiety in the preceding months—became upset and locked

*
District Judge of the Southern District of Mississippi, sitting by designation.
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himself inside the family home and refused to allow his parents to enter. After
about an hour, the Valles called 911 for assistance and requested a
Spanish-speaking operator because neither of them spoke English. The Valles
apparently hoped that the 911 call would bring medical assistance for their son.
The 911 dispatcher sent police officers to the Valles’ home. The Valles
allegedly showed the first officer on the scene, Officer Duarte, papers from their
previous attempts to get Esparza admitted to a hospital for psychiatric
treatment and requested that he help them get medical care for their son.
Duarte then approached the front door of the house and conversed with Esparza
(both Duarte and Esparza spoke English). Officers Walsh, Seay, and Chaisson
then arrived and spoke with Esparza, who stated he would not come out of the
house and would not let anyone in. The officers contacted their supervisor,
Sergeant Bryant, who assumed control of the situation upon his arrival. After
unsuccessfully attempting to communicate with Esparza, Sergeant Bryant
contacted police headquarters to report the situation and seek orders. Captain
Williams of the Special Weapons and Tactical/Hostage Negotiation Team
(“SWAT”) directed Sergeant Bryant to get a Crisis Intervention Team (“CIT”)
special officer to negotiate with Esparza. CIT Officer Broussard was called to
the scene. She negotiated with Esparza for about thirty to forty minutes, but
was unable to get him to come out of the house or allow officers into the house.
The other non-CIT officers, without consulting Officer Broussard, sought and
received permission from Captain Williams to forcefully enter the house.
Esparza was not a suspect in any criminal activity, nor had he threatened the
officers or himself. Nonetheless, Captain Williams authorized the entry and
seizure, although he was neither present at the scene nor had any direct
communication with CIT Officer Broussard.
Sergeant Bryant and three other officers armed themselves with a Taser,
a shotgun loaded with soft-impact bean bags, and their sidearms. While CIT

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Officer Broussard was still conversing with Esparza through the front door,
Sergeant Bryant and Officers Chaisson, Duarte, and Walsh forcibly entered a
side door of the house. The City alleged that Esparza was in possession of a
hammer and charged at the officers when they entered. Less than thirty seconds
after entry, the officers began discharging their weapons. Sergeant Bryant fired
three blasts of non-lethal soft-impact beanbags from the shotgun he was carrying
but was, apparently, unable to stop Esparza. Walsh fired his Taser and missed
Esparza. Chaisson then fired his 40-caliber automatic pistol six times at
Esparza—three bullets struck him. After the assault subsided, Mrs. Valle
entered the home and saw her son lying on the floor; she saw no hammer.1
Esparza died from his wounds.
SWAT Captain Williams was disciplined by the police department for his
role in approving entry into the Valles’ home. He successfully appealed his
reprimand on the basis that he had acted within the policies and procedures of
the police department.
The Valles sued the City2 pursuant to 42 U.S.C. § 1983, alleging violations
of the Fourth and Fourteenth Amendments flowing from the officers’
warrantless forcible entry into their home and lethal seizure of Esparza. The
Valles alleged that the officers exercised excessive force in entering their home
and seizing Esparza pursuant to a City policymaker’s orders, and that the City
was liable under § 1983 for failure to properly train the officers who entered
their home. The district court granted the City’s first motion for summary
judgment, finding that the decision to enter the Valles’ home was not made by
a City policymaker, and thus no City policy was a moving force in causing the

1
In its summary judgment opinion, the district court improperly resolved the factual
dispute about whether Esparza possessed a hammer in the City’s favor. It should have
credited Mrs. Valle’s testimony that her son did not have a hammer.
2
The Valles did not sue any of the officers involved in the shooting of their son.

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Valles’ injuries. The district court also granted the City’s second motion for
summary judgment finding that, although the Valles raised a material fact issue
as to the City’s failure to train the officers, the Valles failed to show that a city
policymaker acted with deliberate indifference and that the allegedly inadequate
training was a moving force in bringing about the constitutional violation.
II
We dispose first of the City’s claim that the Valles lack standing. The City
argues that Esparza may have had a son, which would require administration
of Esparza’s estate under Texas law, thereby raising a question whether
Appellant Jose Valle is the proper party to administer the estate.
We find the City’s arguments without merit. Texas law provides that
when a person dies intestate, as Esparza did, the decedent’s estate immediately
vests in his heirs at law, subject to the payment of any debts of the estate. T EX.
P ROB. C ODE A NN. § 37. Title to any estate passes equally to the decedent’s
parents in the absence of a spouse or children. Id. at § 38(a)(2), (b)(2).
Administration of the estate is necessary if “two or more debts exist against the
estate.” Id. at § 178(b). As required, the Valles submitted evidence
demonstrating that an estate administration was neither pending nor necessary.
See Shepherd v. Ledford, 962 S.W.2d 28, 31–32 (Tex. 1998) (holding that heirs
at law may maintain a wrongful death or survival suit without administration
of the estate if they allege and prove that there is no administration pending and
none necessary). Even if Esparza did have a son, a point that the parties
contest, the Valles still have standing under Texas law to recover wrongful death
damages on behalf of themselves and all others entitled to recover under the
wrongful death statute. T EX. C IV. P RAC. & R EM. C ODE A NN. § 71.004(b). The
City’s conclusory allegation that Esparza’s estate requires administration is
insufficient. Accordingly, the district court’s determination that the Valles have
standing to sue was correct.

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III
This court reviews a grant of summary judgment de novo. Mack v. City of
Abilene, 461 F.3d 547, 555 (5th Cir. 2006) (citing Morris v. Dillard Dep’t Stores,
277 F.3d 743, 747 (5th Cir. 2001)). Summary judgment is appropriate only if no
genuine issue of material fact exists. F ED. R. C IV. P. 56. All facts and inferences
are construed in the light most favorable to the non-moving party. Murray v.
Earle, 405 F.3d 278, 284 (5th Cir. 2005).
IV
A
The Valles argue that the City is liable for entering their home in violation
of the Fourth Amendment and for using excessive force to seize their son, which
resulted in his death. The Valles assert that Captain Williams was acting as the
City’s final policymaker with respect to arrests and seizures when he authorized
entry into the Valles’ home, and thus his actions constitute City policy for the
seizure at issue here.
It is well established that a city is not liable under § 1983 on the theory of
respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). A
municipality is liable only for acts directly attributable to it “through some
official action or imprimatur.” Piotrowski v. City of Houston, 237 F.3d 567, 578
(5th Cir. 2001). To establish municipal liability under § 1983, a plaintiff must
show the deprivation of a federally protected right caused by action taken
“pursuant to an official municipal policy.” See Monell, 436 U.S. at 691. A
plaintiff must identify: “(1) an official policy (or custom), of which (2) a
policymaker can be charged with actual or constructive knowledge, and (3) a
constitutional violation whose ‘moving force’ is that policy or custom.” Pineda
v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002) (citing Piotrowski, 237 F.3d
at 578).

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The existence of a policy can be shown through evidence of an actual
policy, regulation, or decision that is officially adopted and promulgated by
lawmakers or others with policymaking authority. Burge v. St. Tammany
Parish, 336 F.3d 363, 369 (5th Cir. 2003). “[A] single decision by a policy maker
may, under certain circumstances, constitute a policy for which a [municipality]
may be liable.” Brown v. Bryan County, 219 F.3d 450, 462 (5th Cir. 2000).
However, this “single incident exception” is extremely narrow and gives rise to
municipal liability only if the municipal actor is a final policymaker. Bolton v.
City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008) (citing Woodard v. Andrus, 419
F.3d 348, 352 (5th Cir. 2005)).
Under the second prong, “[a]ctual or constructive knowledge of [a] custom
must be attributable to the governing body of the municipality or to an official
to whom that body has delegated policy-making authority.” Webster v. City of
Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc); see also Piotrowski, 237
F.3d at 579. This circuit has long distinguished between final decisionmaking
authority and final policymaking authority. See Jett v. Dallas Indep. Sch. Dist.,
7 F.3d 1241, 1247 (5th Cir. 1993) (citing Pembaur v. City of Cincinnati, 475 U.S.
469, 484 n.12 (1986) and Praprotnik, 485 U.S. at 130). A municipal policymaker
is someone who has “the responsibility for making law or setting policy in any
given area of a local government’s business.” City of St. Louis v. Praprotnik, 485
U.S. 112, 125 (1988). “Municipal liability attaches only where the decisionmaker
possesses final authority to establish municipal policy with respect to the action
ordered.” Pembaur, 475 U.S. at 481. Whether an official possesses final
policymaking authority for purposes of municipal liability is a question of state
and local law. Id. at 482.
The third prong requires a plaintiff to prove “moving force” causation. To
succeed, “a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link

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between the municipal action and the deprivation of federal rights.” Bd. of the
County Comm’rs v. Brown, 520 U.S. 397, 404 (1997). That is, “the plaintiff must
demonstrate that a municipal decision reflects deliberate indifference to the risk
that a violation of a particular constitutional or statutory right will follow the
decision.” Id. at 411. Deliberate indifference is a high standard—“a showing of
simple or even heightened negligence will not suffice.” Piotrowski, 237 F.3d at
579 (quoting Brown, 520 U.S. at 407).
The Valles do not argue that the City has a formal written policy or custom
that caused the unconstitutional seizure of their son.3 Instead, they contend
that the City is liable for Captain Williams’s single unconstitutional decision to
order entry into their home to seize their son. To succeed on this claim, the
Valles must show that Captain Williams had final policymaking authority and
that his decision was the moving force behind the constitutional injury. The
Valles appear to argue that some lesser “decisionmaking” authority to make the
one-time decision at issue is sufficient. See Pembaur, 475 U.S. at 481 (“If the
decision to adopt that particular course of action is properly made by that
government’s authorized decisionmakers, it surely represents an act of official
government ‘policy’ as that term is commonly understood.”). This argument is
based on a misunderstanding of Pembaur and this circuit’s precedent. See
Bolton, 541 F.3d at 548–50 (discussing the distinction between final
decisionmaking authority and final policymaking authority and noting that a
municipality may only be liable for a decision of a final policymaker). We have
long recognized that the “discretion to exercise a particular function does not

3
The only formal policy referred to by the parties is the police department’s General
Order (“GO”) 600-05, which defines the appropriate course of action for SWAT officers to follow
in special threat situations (i.e., a barricaded suspect). The district court determined that this
policy was neither unlawful nor the moving force behind the alleged constitutional violations.
Indeed, Captain Williams was reprimanded for ordering the forceful entry of the Valles’ home
because that decision was found to be a violation of GO 600-05.

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necessarily entail final policymaking authority over that function.” Bolton, 541
F.3d at 549 (citing Praprotnik, 485 U.S. at 130; Pembaur, 475 U.S. at 483–84);
Jett, 7 F.3d at 1247.
Under Chapter 34 of the City Code of Ordinances, the Chief of Police may
delegate authority to another and such person “so designated shall be vested
with the full authority of the office of chief of police.” H OUSTON, T EX. C ODE OF
O RDINANCES §§ 34-24. The Valles contend that the Chief of Police exercised his
policymaking authority in promulgating GO 600-05, which delegates the Chief’s
full policymaking authority to the Assistant Chief of Police for Tactical
Operations and to the Captain of Tactical Operations—here, Captain Williams.
They further argue that Special Operating Procedure (“SOP”) 200/1.01
specifically designated the Captain of Tactical Operations as the person
responsible for determining how to implement GO 600-05. In particular, SOP
200/1.01 states that the Captain of Tactical Operations shall be contacted
regarding a special threat situation and “will determine whether a full, partial
or no SWAT response is appropriate.” The Valles contend that when a decision
is made under GO 600-05 and SOP 200/1.01 about how to handle a special threat
situation, the person who makes that decision is “making policy for the specific
arrest” because the designated decisionmaker is exercising authority delegated
by the chief of police who is the final policymaker for arrest decisions.
Although GO 600-05 and SOP 200/1.01 confer decisionmaking or
operational command authority on Captain Williams, it does not follow that
Captain Williams, or another person to whom such authority is delegated, acts
in a policymaking capacity. Captain Williams was afforded a certain measure
of discretion in carrying out the City’s policy. But “[w]hen an official’s
discretionary decisions are constrained by policies not of that official’s making,
those policies, rather than the subordinate’s departures from them, are the act
of the municipality.” Praprotnik, 485 U.S. at 127. The Valles do not contend

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that either GO 600-05 or SOP 200/1.01 were policies made by Captain Williams
pursuant to delegated policymaking authority. Rather, they are policies made
by other officials that Williams was required to follow. Assuming that Captain
Williams was delegated some level of decisionmaking authority, GO 600-05 and
SOP 200/1.01 constrained his authority and set forth the range of choices which
he could make in a given situation. The fact that Captain Williams made the
final decision in this situation does not mean that he was setting City policy
regarding the making of arrests.4 Nor does the fact that Captain Williams’s
decision violated Esparza’s right to be free of an unconstitutional seizure elevate
his decision to one attributable to the municipality.5
Although Captain Williams’s decision to order entry into the home was
arguably the “moving force” behind the constitutional violations that resulted in
Esparza’s death, because his decision was not a decision by a final policymaker
of the City, the City cannot be liable. Thus, the district court properly granted
summary judgment on the Valles’ municipal liability claim against the City.
B
The Valles also argue that the City is liable because it failed to adequately
train its patrol supervisors in the use of CIT tactics. As a result, the Valles

4
The Valles argue that because the “City’s rules, orders, and policies point to [Captain]
Williams to make the decision and gave him this authority to do so—a straight delegation from
the chief,” it follows that Captain Williams’s decision to tell the officers to forcefully enter the
Valles’ home was “the City’s policy for that arrest.” If this argument were correct, then a
municipality could be liable for almost any decision of its employees that resulted in a
constitutional violation because the unconstitutional decision could be said to be the policy for
that particular decision. Such a theory of liability has been soundly rejected. See, e.g.,
Praprotnik, 485 U.S. at 126 (“If the mere exercise of discretion by an employee could give rise
to [liability for] a constitutional violation, the result would be indistinguishable from
respondeat superior liability.”).
5
The Valles contend for the first time in their reply brief that even if Captain
Williams’s decision to order entry of their home was not an exercise of policymaking authority,
the City is nonetheless liable for that decision because it ratified Williams’s unconstitutional
actions. The Valles have waived this argument by failing to raise it in their opening brief.
See, e.g., Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir. 2003).

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contend that the CIT officer on the scene at their home was overruled by a non-
CIT-trained supervisor, which resulted in immediate and lethal escalation of the
situation, an outcome that CIT training was intended to prevent.
The standard applicable to a failure-to-train claim is the same as the
standard for municipal liability. Roberts v. City of Shreveport, 397 F.3d 287, 293
(5th Cir. 2005). “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.” Bryan County, 219 F.3d at 457
(quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). “In resolving the
issue of a city’s liability, the focus must be on adequacy of the training program
in relation to the tasks the particular officers must perform.” City of Canton,
489 U.S. at 390. A plaintiff must show that (1) the municipality’s training policy
or procedure was inadequate; (2) the inadequate training policy was a “moving
force” in causing violation of the plaintiff’s rights; and (3) the municipality was
deliberately indifferent in adopting its training policy. See, e.g., Sanders-Burns
v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); Pineda, 291 F.3d at 332.
1
To show that the City’s training was inadequate, the Valles presented
evidence that the City chose not to implement a 2004 proposal for additional
mandatory CIT training, prepared at the direction of the Executive Assistant
Chief of Police. According to the proposal, CIT training is “a proven curriculum
for helping officers safely de-escalate situations involving individuals in serious
mental health crises.” The 2004 proposal made two recommendations relevant
here: (1) that all patrol officers be required to complete twenty-four hours of CIT
training, and (2) that all patrol sergeants be required to complete CIT training.
The first proposal was intended to address the underutilization of CIT
officers. Lieutenant Mike Lee, of the police department’s Mental Health Unit,
testified that CIT training gives officers a basic understanding of mental health

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issues and appropriate de-escalation and communication tactics. Yet, the
proposal noted that CIT-trained officers only handled thirty percent of CIT calls.
It also noted the potential liability that could flow from officers not trained in
proper de-escalation tactics responding to volatile situations. The proposal
specifically noted: “If we dispatch a non-CIT officer to a CIT call and the officer
shoots and kills the mental health consumer, the community will ask why we
didn’t use a CIT officer. We could be liable if a CIT officer was available but not
used.”
The second recommendation was intended to preclude possible conflicts
that could arise between a lower-ranked CIT-trained officer and a higher-ranked
non-CIT-trained officer that might result in the higher-ranked officer
“overcalling” the CIT officer’s suggested approach to the situation. Lieutenant
Lee described CIT training as “180 degrees different than . . . typical police
officer and law enforcement training.” For instance, situations involving
mentally ill persons require a greater degree of patience and can require use of
CIT tactics for periods as long as twenty-four hours. CIT-trained officers are
trained not to “let the pressure of time be a factor in [their] decisionmaking.”
Supervisors, such as Sergeant Bryant, are supposed to “allow CIT officers to do
their jobs with the least amount of interference possible,” but “ultimate control”
nonetheless rests with the supervisor, not a junior CIT-trained officer. Thus
Lieutenant Lee recommended that the City either allow the CIT-trained
officer—even if lower ranked—to be in charge of a scene involving a mentally ill
person or train all supervisors to a level equal to that of the junior CIT officers
so that conflicts would be less likely to occur. The Assistant Chief and Chief of
Police considered the proposals but decided not to implement either.6

6
The district court determined that the Chief of Police and Executive Assistant’s
decision not to implement the proposal was an official policymaking decision. The City does
not contest this finding.

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We agree with the district court that the Valles presented sufficient
summary judgment evidence to raise a jury question whether the department’s
decision not to implement the CIT training recommendations in the 2004
proposal constituted an official policy of failing to adequately train. The Valles
also raised a factual question whether a City policymaker (i.e., the Chief of
Police) had actual or constructive knowledge of the alleged inadequacy. The
2004 proposal suggests that the City recognized that mental health situations
were not being adequately dealt with by CIT-trained officers and that there was
a need for additional CIT training. The proposal recommends a course of action,
but the City declined to implement those recommendations. The City points to
evidence that the Chief of Police and Executive Assistant Chief had to balance
the need for training with practical considerations such as budgetary and time
constraints, and that instead of adopting the proposal, the City attempted to
identify CIT-trained officers for dispatch purposes to increase the percentage of
CIT calls actually handled by CIT officers. Although this evidence suggests that
the City did not completely ignore the issues raised by the 2004 proposal and
sought other ways to deal with them, it highlights the factual dispute whether
the City’s training and its response to the proposal were inadequate.
2
As to the second requirement for municipal liability, the district court
found insufficient evidence of causation to survive summary judgment.
Plaintiffs must meet a heightened standard of causation in order to hold a
municipality liable under § 1983. See City of Canton, 489 U.S. at 391–92. Thus,
we require that the municipality’s failure to train be the “moving force” that
caused the specific constitutional violation. Bryan County, 219 F.3d at 461. In
other words, the plaintiff must establish a “direct causal link” between the
municipal policy and the constitutional injury. Brown, 520 U.S. at 404. “We
have said that the connection must be more than a mere ‘but for’ coupling

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between cause and effect. The deficiency in training must be the actual cause
of the constitutional violation.” Thompson v. Connick, 578 F.3d 293, 300 (5th
Cir. 2009), cert. granted, – S. Ct. –, 2010 WL 1005953 (U.S. Mar. 22, 2010) (No.
09-571) (internal quotations and citations omitted).
The Valles have failed to present sufficient evidence of causation as to the
entry of their home. That decision was made by Captain Williams, the head of
the tactical SWAT team, who was trained in CIT tactics. Moreover, although
CIT Officer Broussard testified that she was neither told nor consulted about
making entry into the home, she further testified that she did not disagree with
the decision to enter. While we are troubled that Captain Williams never spoke
directly with the only CIT officer on the scene prior to ordering the forceful entry
of the Valles’ home, any alleged lack of CIT training was not the “moving force”
in the decision to enter the home.
However, we find that there is sufficient evidence of causation to survive
summary judgment with respect to the escalation of force after the officers’
entry. The district court reasoned that because CIT Officer Broussard was on
the scene, the first goal of the 2004 training proposal))to increase the use of CIT
officers in situations such as involved in this case))was accomplished even
though that 2004 policy had not been implemented. Although Officer Broussard
was present, she was not one of the officers who entered the Valles’ home.
Moreover, there is no record evidence that the officers who did enter the Valles’
home had received any CIT training. Lieutenant Lee emphasized that CIT
training is “180 degrees different” from standard patrol officer training and
agreed that the “command techniques that are employed to take a criminal
suspect into custody can . . . serve to escalate contact with the mentally ill into
violence.” Furthermore, Assistant Chief Michael Dirden, at the time responsible
for internal investigations, testified that he had concerns that the officers who
handled the situation were not adequately prepared to do so. In addition, the

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Valles’ expert opined that “there is a substantially greater likelihood that
[Esparza] would [have] survive[d] if the officers going in there are the very best
trained, best equipped, best prepared to deal with any kind of eventuality.” On
the other hand, the City presented some testimony to the effect that CIT
training may not have changed the outcome and that Esparza’s death was not
an incident that would have been addressed by implementation of the 2004
training proposal. At best, the City’s evidence raises a factual dispute whether
failure to train all of the patrol officers involved in the incident in CIT tactics
was a moving force in the precipitous escalation of force following their entry,
which violated Esparza’s constitutional rights.
3
The district court also found that the Valles failed to raise a genuine issue
of material fact on the deliberate indifference prong. Although we find this a
closer question than the district court apparently did, we ultimately conclude
that the Valles did not present evidence sufficient to survive summary judgment.
“Deliberate indifference is a stringent standard, requiring proof that a municipal
actor disregarded a known or obvious consequence of his action.” Bryan County,
219 F.3d at 457 (quoting Brown, 520 U.S. at 410) (internal quotation marks
omitted). Deliberate indifference is more than negligence or even gross
negligence. See Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381
(5th Cir. 2005) (citation omitted). The Valles must show 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.” City of Canton, 489 U.S. at 390.
Usually a plaintiff must show a pattern of similar violations, and in the case of
an excessive force claim, as here, the prior act must have involved injury to a
third party. See Sanders-Burns, 594 F.3d at 381.

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The Valles presented some evidence that the City’s decision not to
implement the 2004 CIT training proposal could potentially lead to the
deprivation of constitutional rights. Contrary to the district court’s findings, we
think that the 2004 proposal was, at least in part, intended to address the
potential for the unconstitutional use of excessive force against mentally ill
persons. Although the proposal does not explicitly state that it was intended to
prevent constitutional violations, we think the use of “magic words” denoting
that a policy is intended to address constitutional violations or § 1983 liability
are unnecessary.7 The 2004 training proposal shows that City policymakers
were aware that the CIT program was being significantly underutilized, even
though it was “proven . . . for helping officers safely de-escalate situations
involving individuals in serious mental health crises.” The proposal explicitly
acknowledged potential liability (albeit without referencing § 1983) arising from
not using CIT officers in situations that called for CIT tactics. Furthermore, it
specifically referenced an example of a non-CIT officer shooting and killing a
mentally ill person, a factually similar situation to that here, and specifically
referenced liability for failure to train. The reasonable inference from the
proposal’s discussion of these liability issues is that the City was concerned
about the potential for excessive force liability, even though no explicit mention
of “constitutional violations” was made. Thus, in our view, the proposal tends
to show that City officials were aware of the potential for constitutional
violations in situations involving mentally ill persons.

7
Requiring that a training proposal include explicit reference to the potential for
constitutional violations or § 1983 liability in order to hold a municipality liable for failing to
implement such a proposal would have perverse consequences. If such a rule existed,
municipalities could very simply shield themselves from liability by couching training
proposals in ambiguous language or otherwise excluding explicit discussion of the potential
constitutional injury that the proposal is intended to address.

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No. 09-20624

However, the Valles did not link this potential for constitutional violations
to a pattern of actual violations sufficient to show deliberate indifference. The
proposal does not detail any prior specific instances of the use of excessive force
by non-CIT officers. Nor did the Valles elicit testimony that City officials were
aware of prior shootings of unarmed mentally ill individuals. The Valles did
present some testimony showing that an assistant police chief was, at least,
vaguely aware of two shootings of mentally ill persons that occurred after
Esparza was killed. However, even assuming that these later shootings involved
excessive force, they are not sufficient to show that the City was on notice of
similar constitutional violations before Esparza was killed. See Davis, 406 F.3d
at 383 (holding that the deliberate indifference standard requires showing “that
the failure to train reflects a deliberate or conscious choice to endanger
constitutional rights” (emphases added)). Furthermore, although the 2004
proposal noted that more than 70 percent of all CIT calls were cleared by non-
CIT officers, that statistic says nothing about a pattern of constitutional
violations because the mere fact of non-CIT officers responding to CIT calls is not
itself a violation of any constitutional right. The Valles cannot show a pattern
of excessive force without some link between that statistic and specific instances
where such a response resulted in constitutional violations. The Valles’ expert’s
testimony, based on two Houston Chronicle articles pre-dating Esparza’s
shooting, that “[a]t least 10 mentally ill people shot [by Houston officers] were
unarmed or carrying objects such as screwdrivers or pieces of wood,” is also
insufficient. This testimony does tend to suggest that prior shootings of
mentally ill persons in fact had occurred, but it does not establish a pattern of
constitutional violations. Prior instances must point to the specific violation in
question; “notice of a pattern of similar violations is required.” Id. Although it
is possible to infer that these prior shootings may have involved the use of
excessive force, that inference is too tenuous to survive summary judgment. For

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No. 09-20624

one, a police officer may be justified in using lethal force against a person
carrying a screwdriver or other object, depending on the circumstances. See
Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (citing Mace v. City of
Palestine, 333 F.3d 621, 624 (5th Cir. 2003)) (“Use of deadly force is not
unreasonable when an officer would have reason to believe that the suspect
poses a threat of serious harm to the officer or others.”). Some greater level of
detail about these prior shootings is required. See Davis, 406 F.3d at 383 (“Prior
indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must
point to the specific violation in question.”) (citations omitted).
We further note that it is difficult to show deliberate indifference in a case
such as this one where the City has implemented at least some training. The
very fact that the City trained a corps of officers in CIT tactics, demonstrates
that it was not deliberately indifferent to the dangers of police interactions with
mentally ill residents. The City considered the proposal, as well as resource
constraints, and determined that the best allocation of limited resources and
personnel was to keep the CIT training at the then-current levels. We do not
mean to say that anytime a municipality must make decisions about resource
allocations, such a decision will preclude a finding of deliberate indifference.
Indeed, we can imagine scenarios in which a municipality’s decision not to
allocate resources to training necessary to prevent constitutional violations
would constitute deliberate indifference. But that is not the case before us. As
we indicated in the discussion of causation, additional training both in terms of
the number of officers who were so trained and the quantity of training that each
officer received may have made a difference for Esparza. But without a
demonstrated link showing constitutional violations, notwithstanding the level
of training the City had already implemented, we cannot say that the City was
deliberately indifferent.

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No. 09-20624

Nor did the Valles present sufficient summary judgment evidence to
succeed in showing deliberate indifference under the single incident exception.
Proof of deliberate indifference is difficult, although not impossible, to base on
a single incident. Sanders-Burns, 594 F.3d at 381. The “single incident
exception” is extremely narrow; “a plaintiff must prove that the highly
predictable consequence of a failure to train would result in the specific injury
suffered, and that the failure to train represented the moving force behind the
constitutional violation.” Id. (citations and internal quotations omitted)
(emphasis added). In the one case in which we found a single incident sufficient
to support municipal liability, there was an abundance of evidence about the
proclivities of the particular officer involved in the use of excessive force. See
Bryan County, 219 F.3d at 462 (finding deliberate indifference based on the
police officer’s known “personal record of recklessness and questionable
judgment,” inexperience, exuberance, and involvement in forcible arrest
situations). On the other hand, we have rejected claims of deliberate
indifference even where a municipal employer knew of a particular officer’s
propensities for violence or recklessness. See, e.g., Davis, 406 F.3d at 382–85
(finding no deliberate indifference even though city was aware that officer fired
weapon inappropriately, had a propensity for violence, and had received citizen
complaints about the officer); Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir.
1998) (rejecting claim of deliberate indifference even though evidence showed
officer was extremely stressed, may have had a quick temper, and was
aggressive). This court has been wary of finding municipal liability on the basis
of a single incident to avoid running afoul of the Supreme Court’s consistent
rejection of respondeat superior liability. See, e.g., Pineda, 291 F.3d at 334–35
(noting that the court rarely finds municipal liability for a failure to train claim
on the basis of a single incident).

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No. 09-20624

Here, the Valles did not allege or offer evidence that the officers who
responded to their call had a propensity for using excessive force, violence, or
were otherwise reckless. Our case law does not specifically require evidence of
such character traits, but such evidence certainly is probative in determining
that a “highly predictable” consequence of sending the particular officers into a
particular situation would be a constitutional violation. Rather, the Valles
attempted to show that a “highly predictable” consequence of sending non-CIT
officers to a situation involving a mental health consumer would be an
unconstitutional use of excessive force. “The single incident exception requires
proof of the possibility of recurring situations that present an obvious potential
for violation of constitutional rights and the need for additional or different
police training.” Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000)
(citing Brown, 520 U.S. at 409).
Although the evidence shows the possibility—perhaps even the
likelihood—of recurring situations involving mental health consumers, the
evidence is far more equivocal on the question whether there was an obvious
potential for the violation of constitutional rights and an obvious need for more
or different training. The Valles presented evidence that in the three years
preceding Esparza’s shooting, Houston police received approximately forty calls
per day involving situations in which CIT tactics would be appropriate. Less
than thirty percent of those calls were actually answered by CIT-trained officers.
Coupled with Lieutenant Lee’s testimony that general patrol training is “180
degrees different” from CIT training, these figures suggest that it was, if not
obvious that more CIT training was necessary, at least an issue on the City’s
radar. However, as discussed above, the Valles did not produce evidence to meet
the high hurdle of showing that excessive force was an obvious consequence of
non-CIT officers responding to CIT situations. Indeed, in considering the single-
incident exception, “[s]everal panels of this court . . . have reviewed cases where

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No. 09-20624

a decision not to train was made long before the alleged violation, and found that
the lack of any similar violations indicates that a violation could not be the
‘highly predictable consequence’ of failing to train.” Thompson, 578 F.3d at 299
(citations omitted). “This approach reflects common sense: if there have been
thousands of opportunities for municipal employees to violate citizens’
constitutional rights, and yet there have been no previous violations, then the
need for training is simply not ‘so obvious.’” Id. at 299–300; see also Conner v.
Travis County, 209 F.3d 794, 797 (5th Cir. 2000) (holding that if failure to train
was “so likely to result in the violation of constitutional rights,” the plaintiff
“would be able to identify other instances of harm arising from the failure to
train”). We find the actions and decisions of the officers involved in this
unfortunate shooting to be very troubling, indeed. However, the Valles did not
present sufficient evidence to show that the highly predictable consequence of
sending non-CIT officers in response to their call for help would result in the
shooting of their son.
V
For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment in the City’s favor.

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