Case: 09-10313 Document: 00511198496 Page: 1 Date Filed: 08/09/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 9, 2010
No. 09-10313 Lyle W. Cayce
Clerk
DELORES A ZARNOW, Independent Administratrix for the Estate of Dr
Allen J Zarnow, Deceased,
Plaintiff - Appellant Cross-Appellee
v.
CITY OF WICHITA FALLS TEXAS; KEN COUGHLIN,
Defendants - Appellees Cross-Appellants
Appeals from the United States District Court
for the Northern District of Texas
Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.
Leslie H. Southwick, Circuit Judge.
This is a suit under Section 1983. The claim is that a city and its police
chief violated a person’s Fourth Amendment rights. The district court granted
summary judgment in favor of the defendants. We AFFIRM.
I. STATEMENT OF FACTS
Dr. Allen Zarnow was a physician at the Clinics of North Texas (“the
Clinic”) in Wichita Falls, Texas. In July 1999, while Zarnow was on vacation,
Clinic employees discovered a gun, an ammunition magazine, several boxes of
shells, blasting caps, ammunition, and fuses in his office. None of the items were
active explosive devices. The Clinic’s manager contacted the police.
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Employees at the Clinic reportedly told the first officer on the scene that
Zarnow was a “gun expert and salesman.” Based on his military experience, the
police officer concluded that the found items were “dangerous.” Firefighters,
however, thought the materials did not constitute an imminent hazard. The
responding officer contacted the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) and also telephoned his superiors. Police Chief Ken Coughlin arrived
at the Clinic sometime after the initial discovery. Although keeping apprised of
the situation, he apparently did not assume command of the scene.
Shortly thereafter, police applied for a warrant to search Zarnow’s home.
The affidavit on which the warrant application was based stated that the offense
believed to have been committed was “possession of illegal explosives and other
explosive devices” in violation of Texas Penal Code Sections 46.05 and 46.09.
Among the allegations asserted in the affidavit were that “explosives” and
“explosive devices” had been identified at Zarnow’s office by “an expert on bombs
and explosives.” A local magistrate signed the warrant, which permitted officers
to search for explosive devices and prohibited weapons, along with any
documents or notes pertaining to the ownership of the weapons or the house.
While waiting for the magistrate to sign the warrant, police surrounded
Zarnow’s home for surveillance. Upon discovering that Zarnow and his family
had returned from vacation, police ordered Zarnow to exit the house. Zarnow
acquiesced. During a subsequent interrogation, Zarnow assured police officers
that he was a properly licensed firearms dealer, and offered to produce
paperwork showing his entitlement to possess all of the materials recovered at
his office. Police asked to see the documents, and Zarnow informed them that
the paperwork was in the house.
Zarnow was accompanied by police officers and ATF agents into the
residence, where he presented papers proving that he was licensed to possess
weapons and explosive materials. As Zarnow showed the documents to the ATF
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agent, the police officers began a consensual search of the home. When they
discovered a box marked “explosives” in plain view, Zarnow withdrew his
consent and asked the officers to leave. Officers informed Zarnow that his
consent was no longer necessary since they had a warrant to search the home.
The next morning, Chief Coughlin assembled all of the firearms and
ammunition seized at Zarnow’s home and laid them out for the news media to
photograph. Zarnow was jailed for possession of prohibited weapons. Over the
next few days, the police executed an additional search warrant at Zarnow’s
home and yet another at his lake house. However, a Wichita Falls grand jury
refused to indict, and no charges were ever brought against him.
During the searches of Zarnow’s homes, police officers seized weapons,
ammunition, currency, bonds, silver, band-aids, books, prescription medicines,
and over-the-counter medications. Although a number of these items were not
covered by the search warrant, police justified their seizure by citing to the
“plain view” doctrine. Officers later testified that they understood “plain view”
to permit the collection of any item that might be evidence of any crime. The
police chief testified that it was his practice to seize more than was necessary
during an initial search, so that he could later “rule things in or out.”
Zarnow filed suit in the U.S. District Court for the Northern District of
Texas, naming as defendants the City of Wichita Falls, Chief Coughlin, eight
named subordinate officers, and eight unnamed officers all in their individual
and official capacities. Zarnow alleged violations of the Second, Fourth, Fifth,
Sixth, and Fourteenth Amendments, and sought relief under 42 U.S.C. § 1983.
During the litigation, Allen Zarnow died. His widow, as administratrix of his
estate, was substituted as plaintiff.
Several officers were dismissed from the suit. All official capacity claims
were dismissed except for those against Chief Coughlin. The remaining
defendants later moved for summary judgment on qualified immunity grounds.
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The summary judgment motion was granted as to Zarnow’s claims under
the Second, Fifth, Sixth, and Fourteenth Amendments. However, summary
judgment was denied as to the Fourth Amendment claims. The City and the
individual officers appealed.
On appeal, a panel of this Court determined that it was without
jurisdiction to hear the City’s appeal because the denial of summary judgment
was not a final order. Zarnow v. City of Wichita Falls, Tex., 500 F.3d 401 (5th
Cir. 2007). As to the claims against the individual officers, some of their conduct
likely violated Zarnow’s Fourth Amendment rights. Nevertheless, the panel held
that the officers were entitled to qualified immunity and dismissed the claims
against them. Only Zarnow’s claims against the City and Chief Coughlin in his
official capacity remained. The case was remanded to the district court for
further proceedings.
On remand, Zarnow alleged that the City was responsible for the officers’
misuse of the plain view doctrine during the home searches. Zarnow argued that
the officers’ expansive view of the doctrine was inconsistent with a Supreme
Court decision that “plain view” seizures had to be supported by probable cause.
Arizona v. Hicks, 480 U.S. 321, 326 (1987). Zarnow contended that the officers’
improper use of the “plain view” doctrine constituted a “policy or custom” of the
City that was implemented by its policymaker, Chief Coughlin.
Both parties again moved for summary judgment, which was granted in
favor of the City. The court found that Chief Coughlin was a “potential
policymaker,” but that the officers’ use of the plain view doctrine was not a
“custom or policy” of the City. Consequently, the court did not reach whether a
policy was the “moving force” behind the alleged constitutional violation.
Zarnow timely appealed the district court’s grant of summary judgment
in favor of the City. The City cross-appealed to challenge the court’s finding that
Chief Coughlin was a “potential policymaker.”
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II. DISCUSSION
We review a district court’s grant of summary judgment de novo.
Mahaffey v. Gen. Sec. Ins. Co., 543 F.3d 738, 740 (5th Cir. 2008). A district court
should grant summary judgment when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c)(2). In making this determination, the evidence must be viewed in the light
most favorable to the nonmoving party. Mahaffey, 543 F.3d at 740.
A. Municipal Liability
A municipality is a “person” subject to suit under Section 1983. See Monell
v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A local
government entity may be sued “if it is alleged to have caused a constitutional
tort through ‘a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.’” City of St. Louis v.
Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690).
Alternatively, municipal liability may attach where the constitutional
deprivation is pursuant to a governmental custom, even if such custom has not
received formal approval. Monell, 436 U.S. at 690-91. “[M]unicipal liability
under Section 1983 requires proof of three elements: a policymaker; an official
policy; and a violation of constitutional rights whose moving force is the policy
or custom.” Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)
(citation omitted).
The elements of the Monell test exist to prevent a collapse of the municipal
liability inquiry into a respondeat superior analysis. See Bd. of Cnty. Comm’rs
of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 415 (1997). A municipality may
not be subject to liability merely for employing a tortfeasor. See, e.g., City of
Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). Municipal liability requires
deliberate action attributable to the municipality that is the direct cause of the
alleged constitutional violation. Id. at 391-92.
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1. Municipal Liability – Policymaker
The first requirement for imposing municipal liability is proof that an
official policymaker with actual or constructive knowledge of the constitutional
violation acted on behalf of the municipality. Cox v. City of Dallas, Tex., 430
F.3d 734, 748-49 (5th Cir. 2005). A policymaker is “one who takes the place of
the governing body in a designated area of city administration.” Webster v. City
of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc). He or she must “decide
the goals for a particular city function and devise the means of achieving those
goals.” Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984) (en banc).
Zarnow insists that Chief Coughlin acted as the City’s policymaker and was
actively aware of the errant plain view policy used in the seizure of items from
her home.
A city’s governing body may delegate policymaking authority (1) by
express statement or formal action or (2) “it may, by its conduct or practice,
encourage or acknowledge the agent in a policymaking role.” Id. There is no
express delegation here.
As evidence of the City’s conduct or practice, Zarnow produced several
“General Orders” issued by the chief of police to the police department.1 Each
General Order begins with the language, “It is the policy of this department . .
.” and proceeds to set out regulations addressing specific behaviors. These
orders are binding on the officers until reviewed, altered, or changed by the City
Manager or City Council. Zarnow asserts that the chief’s general power to issue
such orders establishes a custom by which the chief creates law enforcement
policy for the City. See Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 616
(5th Cir. 1999).
1
There is no argument that the police chief promulgated a General Order
specifically addressing the “plain view” policy of which Zarnow complains. He did not.
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The City, on the other hand, contends that Chief Coughlin was a
“decisionmaker” but not an official policymaker for the City. There is a fine
distinction between a policymaker and a decisionmaker. Jett v. Dall. Indep. Sch.
Dist., 7 F.3d 1241, 1247 (5th Cir. 1993). The fact that an official’s decisions are
final is insufficient to demonstrate policymaker status. Id. at 1248.
The City employs state law as evidence that Coughlin is not a policymaker.
Wichita Falls is a “home rule city” according to Texas Law. Its powers are
limited only by the Texas Constitution, state statutes, and the City’s Charter.
Tex. Loc. Gov. Code § 51.072 (Vernon 2001). In Wichita Falls, the City Council
and City Manager hold general legislative and executive powers. The City
insists that the City Manager and City Council have the relevant authority over
the police department as established by Article 12 of the City Charter:
The police department shall be under the direction of a chief of
police, who shall be appointed by the city manager and who, subject
to the supervision of the city manager and to such rules regulations
and orders prescribed by the city manager not inconsistent with the
City Charter and ordinances, shall have immediate control and
direction of such department . . . .
This is the kind of authority, the City argues, that equates to policymaking
authority in the specific department where the constitutional deprivation
occurred. McMillan v. Monroe Cnty., Ala., 520 U.S. 781, 786-87 (1997).
Relying on Article 12, the City insists that the City Manager has
supervisory authority over the police chief. This type of review of the police
chief’s actions demonstrates, the City argues, that he is not a final policymaker.
See Colle v. Brazos Cnty., Tex., 981 F.2d 237, 244-45 (5th Cir. 1993).
The nature of the administrative oversight is important in determining
“policymaker” status. An official may be a policymaker even if a separate
governing body retains some powers. See Bennett, 728 F.2d at 769. An official
may be termed a “policymaker” even if the municipality retains “the prerogative
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of the purse and final legal control by which it may limit or revoke the authority
of the official.” Id. Further, the subject matter of administrative review must
be precise in order to attach the presumption against policymaking. Beattie v.
Madison Cnty. Sch. Dist., 254 F.3d 595, 603 (5th Cir. 2001). “The mere existence
of oversight, however, is not enough; the oversight must pertain to the area of
authority in question.” Id. (citation omitted).
Although the City offered evidence that the City Council periodically
authorized the creation of various police task forces, those resolutions have little
to do with police policy. There is no evidence that the City Council has ever
commented authoritatively on the internal procedures of the department.
Consequently, the administrative review process in place here does not
conclusively demonstrate that Chief Coughlin is not a policymaker.
Still, we have maintained that “neither complete discretionary authority
nor the unreviewability of such authority automatically results in municipal
liability. There must be more.” Bolton v. City of Dallas, Tex., 541 F.3d 545, 551
(5th Cir. 2008). We agree with the district court that the General Orders
promulgated by the police chief sufficed to be the “more” that is needed to prove
policymaking authority in these circumstances. On this evidence, the chief of
police is the sole official responsible for internal police policy. Others have only
marginal involvement with the internal procedures of the police force. The
alleged constitutional violation arose from a peculiar interpretation of a “plain
view” procedure, which was employed only during police activities.
Although no General Order was ever entered regarding this policy, it
appears that the police chief would have been authorized to speak on the City’s
behalf if such a policy was created. Accordingly, we hold that the City impliedly
delegated its policymaking authority to the chief of police.
2. Municipal Liability – Official Policy or Custom
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Upon finding a policymaker, we must next consider whether the allegedly
unconstitutional action constitutes a “custom or policy” of the municipality. We
have identified two forms that “official policy” may take. First, a plaintiff may
point to a policy statement formally announced by an official policymaker. See
Webster, 735 F.2d at 841. In the alternative, the plaintiff may demonstrate a
“persistent widespread practice of city officials or employees, which, although not
authorized by officially adopted and promulgated policy, is so common and well
settled as to constitute a custom that fairly represents municipal policy.” Id.
Because no formal directive exists concerning the police department’s “plain
view” practices, our analysis turns on the second form of policy.
A plaintiff may prove the existence of a “custom or policy” in one of two
ways. First, a pattern of unconstitutional conduct may be shown on the part of
municipal actors or employees. Id. at 842. A pattern of conduct is necessary
only where the municipal actors are not policymakers. Alternatively, it may be
shown that a final policymaker took a single unconstitutional action. Bolton,
541 F.3d at 548.
a. Pattern of Unconstitutional Conduct
The district court concluded that Zarnow has not demonstrated a pattern
of unconstitutional conduct by police officers. A customary policy consists of
actions that have occurred for so long and with such frequency that the course
of conduct demonstrates the governing body’s knowledge and acceptance of the
disputed conduct. Webster, 735 F.2d at 842.
In an effort to establish a pattern, Zarnow invites this Court to rely on a
series of inferences. The officers’ testimony concerning the plain view doctrine
was given several years after the incident giving rise to this action. During the
intervening period, Zarnow alleges many unconstitutional searches of the same
type must have taken place. No evidence of that was offered. There is no
testimony that the plain view doctrine was misused in another case. Mere
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“improbable inferences” and “unsupported speculation” are not proper summary
judgment evidence. Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
Zarnow asserts that the Chief Coughlin and the City effectively ratified
the officers’ unconstitutional conduct. Among the arguments is that during this
litigation, the City has defended the constitutionality and propriety of the
actions taken by its officers, despite the finding of a prior panel of this Court that
the officers’ actions violated the Fourth Amendment. Such a defense constitutes,
so the argument goes, a ratification of the unlawful conduct of its officers.
Good faith statements made in defending complaints against municipal
employees do not demonstrate ratification. See Peterson v. City of Forth Worth,
Tex., 588 F.3d 833, 852 (5th Cir. 2009). A “policymaker who defends conduct
that is later shown to be unlawful does not necessarily incur liability on behalf
of the municipality.” Id. at 848 (citing Coon v. Ledbetter, 780 F.2d 1158, 1161-62
(5th Cir. 1986)).
Zarnow also suggests that Chief Coughlin may have incurred liability on
behalf of the City by failing to supervise his subordinates during the search. To
support a supervisory liability claim, the misconduct of a subordinate must be
conclusively linked to the action or inaction of the supervisor. See Doe v. Taylor
Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir. 1994) (en banc). A supervisory
official is liable if he demonstrates deliberate indifference to a plaintiff’s
constitutionally protected rights. Id. at 454.
Deliberate indifference is “more blameworthy than negligence” but less
blameworthy than purposeful harm. See Farmer v. Brennan, 511 U.S. 825, 835
(1994). The standard is “stringent” and requires that the supervisory actor
disregarded a known consequence of his action. Southard v. Tex. Bd. of Crim.
Justice, 114 F.3d 539, 551 (5th Cir. 1997).
Here, there was no deliberate indifference. Coughlin shared the errant
view of the doctrine which caused Zarnow’s constitutional deprivation.
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Negligent misinformation is insufficient to establish supervisory liability. See
id. Similarly, there is no evidence that Coughlin’s failure to supervise the search
rose above the level of negligent inaction. “Unintentionally negligent oversight”
does not satisfy the deliberate indifference standard. Gonzalez v. Ysleta Indep.
Sch. Dist., 996 F.2d 745, 756 (5th Cir. 1993)(citation omitted).
b. Single Instance of Unconstitutional Conduct by a Policymaker
The court did not consider whether Chief Coughlin committed a single
constitutional violation sufficient to confer liability on the City. This was
because Zarnow did not allege in the district court that Chief Coughlin
personally committed such a violation. Instead, the focus was on theories of
ratification and supervisory liability.
For the first time on appeal, Zarnow argues that a single incident of
unconstitutional conduct by a policymaker may impute liability to the City. The
only citation to this rule in her appellate briefing appears in the argument that
Chief Coughlin failed to supervise his employees. The brief does not assert that
Coughlin was personally involved with the violation itself. Under questioning
at oral argument, Counsel nevertheless extended this argument, claiming for the
first time that Coughlin personally seized prohibited items from the house.
This argument was not made to the district court. We will not consider it,
as it is made for the first time on appeal and is therefore waived. LeMaire v.
Louisiana Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
c. Failure to Train
As a separate theory of municipal liability, Zarnow contends that the City
had a policy of inadequate training of its police officers. “A municipality’s failure
to train its police officers can without question give rise to § 1983 liability.”
World Wide Street Preachers Fellowship v. Town of Columbia, 591 F.3d 747, 756
(5th Cir. 2009) (citations omitted). To prevail on a “failure to train theory” a
plaintiff must demonstrate: (1) that the municipality’s training procedures were
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inadequate, (2) that the municipality was deliberately indifferent in adopting its
training policy, and (3) that the inadequate training policy directly caused the
violations in question. Id.
Zarnow’s initial brief does not reference any evidence concerning the
procedures used to train the officers, the officers’ qualifications, or direct
references to the particular inadequacies of their Fourth Amendment training.
Zarnow’s only evidence that the training procedures were deficient is that the
officers expressed an unlawful interpretation of the plain view doctrine. In order
for “liability to attach based on an ‘inadequate training’ claim, a plaintiff must
allege with specificity how a particular training program is defective.” Roberts
v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005).
Further, this Court has previously rejected attempts by plaintiffs to
present evidence of isolated violations and ascribe those violations to a failure
to train. See generally Goodman v. Harris Cnty., 571 F.3d 388 (5th Cir. 2009).
Here, the only training-related evidence in the record demonstrated that the
City’s training procedures complied with state law. We consider compliance with
state requirements as a factor counseling against a “failure to train” finding. See
Conner v. Travis Cnty., 209 F.3d 794, 798 (5th Cir. 2000). Zarnow has not
established that the City’s training practices are inadequate. Because Zarnow
cannot establish the first element of the “failure to train” test, we will not
address the remaining ones.
3. Municipal Liability – Moving Force
The district court did not reach the final element of the municipal liability
analysis, which considers whether the allegedly unlawful seizure policy was the
“moving force” causing Zarnow’s constitutional deprivations. See Piotrowski, 237
F.3d at 578. We stop short in our analysis as well. Because we are affirming the
court’s finding that Zarnow has not established a “custom or policy” of the City,
we too need not consider the moving force factor.
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B. Law-of-the-Case Doctrine
Zarnow argues that the law-of-the-case doctrine should have prevented the
district court from granting summary judgment. That argument is based on the
fact that the district court denied the City’s first motion for summary judgment
on the basis that issues of fact existed concerning whether the City’s search
policy was the “moving force” underlying the unlawful seizures conducted at
Zarnow’s home. Following an appeal to this Court on issues of qualified
immunity, the case was remanded. The parties again moved for summary
judgment. This time, the district court granted the City’s motion.
Zarnow contends that the district court could not properly grant summary
judgment to the City on the same issues decided in the prior order. However,
the law-of-the-case doctrine does not operate to prevent a district court from
reconsidering prior rulings. “A court has the power to revisit prior decisions of
its own . . . in any circumstance. . . .” Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817 (1988). The doctrine “directs a court’s discretion, it does
not limit the tribunal’s power.” Arizona v. California, 460 U.S. 605, 618 (1983)
(citations omitted). The law-of-the-case doctrine is a rule of convenience
designed to prevent unnecessary reconsideration of previously decided issues.
See Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983). It is equally clear,
though, that the rule “yields to adequate reason.” Id.
Further, we have rejected the argument that the doctrine precludes a
grant of summary judgment following a prior denial. An order denying
summary judgment is interlocutory, and leaves the trial court free to “reconsider
and reverse its decision for any reason it deems sufficient, even in the absence
of new evidence or an intervening change in or clarification of the substantive
law.” Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th
Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069
(5th Cir. 1994).
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Accordingly, we agree with the district court that Chief Coughlin is a
policymaker for the City, but that Zarnow has not established a custom or policy
sufficient to impose liability. We AFFIRM.
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