United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 11, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10036
ESTATE OF TROY DAVIS, By and through its Successor Administrator,
R. Dyann McCully and Lisa Jean Davis, Individually; ET AL,
Plaintiffs,
ESTATE OF TROY DAVIS, By and through its Successor Administrator,
R. Dyann McCully and Lisa Jean Davis; BARBARA JEAN DAVIS,
Plaintiffs-Appellees
versus
CITY OF NORTH RICHLAND HILLS; ET AL,
Defendants,
TOM SHOCKLEY, Chief of Police, Individually and in his official
capacity; J. A. WALLACE, Officer, Individually and in his
official capacity,
Defendants-Appellants
**************************************************************
BARBARA JEAN DAVIS,
Plaintiff-Appellee,
versus
CITY OF NORTH RICHMOND HILLS; ET AL,
Defendants,
TOM SHOCKLEY, Chief of Police, Individually and in his official
capacity; J. A. WALLACE, Officer, Individually and in his
official capacity,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
(USDC No. 4:01-CV-1008-Y)
Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This is an appeal from a denial of summary judgment to
supervisory law enforcement officials in a suit brought under 28
U.S.C. § 1983. The district court denied the request for summary
judgment premised on qualified immunity, finding genuine issues of
material fact regarding supervisory liability and the objective
reasonableness of the supervisors’ actions. Persuaded that the
record cannot support a conclusion that supervisory liability would
attach, we reverse.
I
Police Officer Allen L. Hill, a member of the North Richland
Hills Police Department (“NRHPD”) SWAT team, shot and killed Troy
James Davis during the execution of a no-knock search and arrest
warrant at the residence of Troy James Davis and Barbara Jean
Davis. The circumstances of the raid are sharply contested.
Asserting claims pursuant to 42 U.S.C. § 1983 and state law,
Davis’s estate and Davis’s mother, Barbara Jean Davis sued Chief of
Police Tom Shockley, Police Officer J.A. Wallace, and Police
2
Officer Allen Hill.1 Plaintiffs asserted that while executing the
search and arrest warrant, Officer Hill used excessive force
against Davis, shooting and killing him. Hill was the first SWAT
team member to enter the home and he shot Davis within the initial
two seconds. At the time, according to Plaintiffs, Davis was in
his living room, unarmed, arms outstretched and repeating “don’t
hurt us.” According to the police officers, upon entering the
home, Hill was immediately confronted by an armed Davis standing at
the end of the hallway, pointing a gun at Hill.
Plaintiffs further contended that Officer Wallace and Chief
Shockley, two of Hill’s supervisors, should be held liable under
section 1983 for their inadequate supervision and training of Hill,
resulting in Hill’s use of excessive force during the raid.2
According to Plaintiffs, Wallace and Shockley knew prior to the
shooting that Hill was “prone to use excessive and/or deadly force
without cause,” that Hill had “a reputation for displaying lewd and
criminal behavior while on and off-duty,” and that Hill’s
“employment history branded and identified him as dysfunctional and
unfit for police work.”
Shockley and Wallace, along with the other defendants, moved
1
Lisa Jean Davis was also a plaintiff in her individual capacity in the
original complaint in No. 4:00-CV-438-Y. She is no longer a plaintiff. Barbara
Jean Davis later filed a separate complaint in No. 4:01-CV-1008-Y, which was then
consolidated.
2
Neither Wallace nor Shockley actually participated in the raid. Officer
Wallace, the SWAT Team commander, was present outside Davis’s house at the time.
Chief Shockley was not present at the house.
3
for summary judgment based on qualified immunity. The district
court determined that Plaintiffs produced evidence demonstrating a
genuine issue of material fact whether Shockley and Wallace were
deliberately indifferent to Hill’s propensity to use excessive
force, whether their conduct was objectively unreasonable in light
of clearly established constitutional law.
The district court noted that the following evidence supported
supervisory liability: testimony from Ann Shelton, a former member
of the NRHPD SWAT team, indicating that Hill fired his weapon on
three occasions during training exercises when the scenarios did
not call for the firing of a weapon; a background investigation
report indicating that Hill had a tendency to act too aggressively;
and testimony of Randy Cole, a citizen who was pulled over by Hill
for a traffic violation, indicating that Hill behaved “like a
psycho” and was “going to kill somebody.”3 The district court
found that the seriousness of the SWAT team training incidents was
magnified when laid against Cole’s allegations. Further, the
district court found evidence that Hill had a reputation for
exposing himself, including during a team photograph at SWAT team
training--a reputation that earned him the nickname “Penie.”
The district court concluded that Shockley and Wallace were
not as a matter of law entitled to qualified immunity on the
3
Davis v. City of North Richland Hills, No. 4:00-CV-438-Y, at *45 n.50,
*46-*48 (N.D. Tex. Sept. 30, 2003) (order partially granting summary judgment for
defendants) (consolidated with No. 4:01-CV-1008-Y) (unpublished).
4
supervisory liability claims and also denied summary judgment to
Hill on the excessive force claim.4 Shockley and Wallace
(“Appellants”) filed this appeal.5
II
We must first address our jurisdiction. Ordinarily, we do not
have jurisdiction to review a district court’s denial of a motion
for summary judgment because such a decision is not a final
judgment within the meaning of 28 U.S.C. § 1291.6 However, “a
district court’s denial of a claim of qualified immunity, to the
extent that it turns on an issue of law, is an appealable ‘final
decision’ within the meaning of 28 U.S.C. § 1291.”7
“When a district court denies summary judgment on the basis
that genuine issues of material fact exist, it has made two
distinct legal conclusions: that there are ‘genuine’ issues of fact
in dispute, and that these issues are ‘material.’”8 “‘[W]e can
4
The district court granted summary judgment to Shockley, Wallace, Hill,
and the other police officers named as defendants as to all of Plaintiffs’
remaining claims.
5
Hill is not an appellant in this case.
6
Reyes v. City of Richmond, 287 F.3d 346, 351 (5th Cir. 2002); Lemoine v.
New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 633 (5th Cir. 1999).
7
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see Kinney v. Weaver, 367
F.3d 337, 346 (5th Cir. 2004) (en banc) (“Although a denial of a defendant’s
motion for summary judgment is ordinarily not immediately appealable, the Supreme
Court has held that the denial of a motion for summary judgment based upon
qualified immunity is a collateral order capable of immediate review.”).
8
Reyes, 287 F.3d at 351; see also Bazan ex rel. Bazan v. Hidalgo Co., 246
F.3d 481, 490-91 (5th Cir. 2001) (no jurisdiction to review whether evidence is
sufficient to “support a finding that particular conduct occurred” (emphasis
omitted)).
5
review the materiality of any factual disputes, but not their
genuineness.’”9 “An officer challenges materiality when he
contends that ‘taking all the plaintiff’s factual allegations as
true no violation of a clearly established right was shown.’”10 We
determine whether a denial of summary judgment based on qualified
immunity is immediately appealable by “look[ing] at the legal
argument advanced.”11
Appellants argue, inter alia, that even if Plaintiffs’ factual
allegations are taken as taken as true, they are “not sufficient to
constitute either gross negligence or deliberate indifference by
the supervisors.” The issue of whether the evidence is sufficient
to demonstrate deliberate indifference for supervisory liability is
a legal issue that this court may review on interlocutory appeal.12
Appellants challenge the materiality of the disputed facts, and we
9
Kinney, 367 F.3d at 347 (quoting Wagner v. Bay City, 227 F.3d 316, 320
(5th Cir.2000)); Chui v. Plano Indep. Sch. Dist., 339 F.3d 273, 279 (5th Cir.
2003).
10
Reyes, 287 F.3d at 351 (citation and emphasis omitted); see also Kinney,
367 F.3d at 348 (“[We] consider only whether the district’ court erred in
assessing the legal significance of the [purported] conduct.”).
11
Reyes, 287 F.3d at 350.
12
See Gros v. City of Grand Prairie, 209 F.3d 431, 436 (5th Cir. 2000)
(holding that because evidence relied upon by the district court in denying
summary judgment to supervisory defendant in section 1983 action was insufficient
to demonstrate deliberate indifference, evidence was immaterial and summary
judgment should have been granted); Lemoine, 174 F.3d at 635 (holding that
summary judgment evidence was “immaterial because it [was] insufficient as a
matter of law to demonstrate that appellants acted with anything more than
negligence”).
6
have jurisdiction.13
III
In an interlocutory appeal from the denial of a summary
judgment motion based on qualified immunity, “we do not apply the
standard of Rule 56 but instead consider only whether the district
court erred in assessing the legal significance of the conduct that
the district court deemed sufficiently supported for purposes of
summary judgment.”14 We review de novo “the district court’s
conclusions concerning the legal consequences--the materiality--of
the facts.”15 We consider the facts in the light most favorable to
Plaintiffs as the non-moving party.16
IV
Appellants argue that Plaintiffs have not overcome the bar of
qualified immunity--that there are no material issues of fact
because, even in the light most favorable to Plaintiffs, the
evidence is insufficient to demonstrate supervisory liability. We
agree.
A
13
Insofar as any of Appellants’ arguments challenge the genuineness of the
fact issues identified by the district court, we lack jurisdiction to review.
14
Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en banc) (citing
Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S. 304,
313 (1995)); see FED. R. CIV. P. 56.
15
Id. at 349 (citing Lemoine, 174 F.3d at 634).
16
Id. at 348 (“Where factual disputes exist in an interlocutory appeal
asserting qualified immunity, we accept the plaintiffs’ version of the facts as
true.”).
7
Under the doctrine of qualified immunity, “government
officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”17 Qualified immunity
is
an entitlement not to stand trial or face the
other burdens of litigation, conditioned on
the resolution of the essentially legal
question whether the conduct of which the
plaintiff complains violated clearly
established law. The entitlement is an
immunity from suit rather than a mere defense
to liability . . . .18
As we recently noted, “[b]efore this court--or any court--can
adjudicate the merits” of Plaintiffs’ claims, they “must overcome
the bar of qualified immunity.”19 Once raised, a plaintiff has the
burden to rebut the qualified immunity defense “by establishing
that the official’s allegedly wrongful conduct violated clearly
established law. We do not require that an official demonstrate
that he did not violate clearly established federal rights; our
17
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see Thompson v. Upshur
Co., 245 F.3d 447, 456 (5th Cir. 2001).
18
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis omitted).
19
Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005); cf.
Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998) (“[C]ourts are well-advised
to separate ‘qualified immunity’ analysis from ‘merits’ analysis whenever
practicable. In some circumstances, however, these inquiries overlap. . . .
Since our inquiry into objective legal reasonableness involves deliberate
indifference, however, we are compelled to engage the merits to a greater extent
than is usual.”).
8
precedent places that burden upon plaintiffs.”20 Qualified immunity
“provides ample protection to all but the plainly incompetent or
those who knowingly violate the law.”21
B
Plaintiffs have alleged the violation of the constitutional
right to be free of excessive force under the Fourth Amendment.22
Here, Plaintiffs seek to hold Appellants Wallace and Shockley
liable as supervisors of Hill. Supervisory officials cannot be
held liable under section 1983 for the actions of subordinates,
such as Hill, on any theory of vicarious or respondeat superior
liability.23 Rather, Plaintiffs must show that the conduct of the
supervisors denied Davis his constitutional rights.24 When, as
here, a plaintiff alleges a failure to train or supervise, “the
plaintiff must show that: (1) the supervisor either failed to
supervise or train the subordinate official; (2) a causal link
20
Pierce v. Smith, 117 F.3d 866, 71-72 (5th Cir. 1997) (citations and
internal quotation marks omitted); see also McClendon v. City of Columbia, 305
F.3d 314, 323 (5th Cir. 2002) (en banc) (“When a defendant invokes qualified
immunity, the burden is on the plaintiff to demonstrate the inapplicability of
the defense.”).
21
Malley v. Briggs, 475 U.S. 335, 341 (1986).
22
See Saucier v. Katz, 533 U.S. 194, 201-02 (2001); see also Graham v.
Connor, 490 U.S. 386, 397-99 (1989) (describing objective reasonableness test for
evaluating excessive force claims under Fourth Amendment); Tennessee v. Garner,
471 U.S. 1, 7 (1985) (“[T]here can be no question that apprehension by the use
of deadly force is a seizure subject to . . . the Fourth Amendment”).
23
City of Canton v. Harris, 489 U.S. 378, 385 (1989); Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978); Evett v. DETNTFF, 330 F.3d 681, 689 (5th
Cir. 2003); Alton v. Texas A&M Univ., 168 F.3d 196, 201 (5th Cir. 1999);
Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).
24
See Evett, 330 F.3d at 689; Thompkins, 828 F.2d at 304.
9
exists between the failure to train or supervise and the violation
of the plaintiff’s rights; and (3) the failure to train or
supervise amounts to deliberate indifference.”25
With respect to the third prong, we have on several occasions
reversed a district court’s denial of qualified immunity, persuaded
that support was lacking for a conclusion of deliberate
indifference on the part of a supervisor.26 “‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious consequence
of his action.”27 “For an official to act with deliberate
indifference, the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”28 Deliberate
indifference requires a showing of more than negligence or even
gross negligence.29 “Actions and decisions by officials that are
25
Smith v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998); see Burge v.
St. Tammany Parish, 336 F.3d 363, 370 (5th Cir. 2003); Cousin v. Small, 325 F.3d
627, 637 (5th Cir. 2003); Thompson, 245 F.3d at 459; Doe v. Taylor Indep. Sch.
Dist., 15 F.3d 443, 452-54 & nn.7-8 (5th Cir. 1994) (en banc) (adopting the City
of Canton v. Harris, 489 U.S. 378 (1989), standard of municipal liability--that
is, requiring at least deliberate indifference--for supervisory liability).
26
See, e.g., Roberts, 397 F.3d at 292; Evett, 330 F.3d at 689-90; Cozzo,
279 F.3d at 287-88; Gros, 209 F.3d at 436; Doe, 15 F.3d at 457-58; see also
Cousin, 325 F.3d at 637 (affirming grant of summary judgment based on qualified
immunity where evidence is insufficient to create a genuine issue of material
fact as to deliberate indifference of supervisor); Alton, 168 F.3d at 201 (same).
27
Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 410
(1997) (Bryan County).
28
Smith, 158 F.3d at 912 (internal quotation marks and citations omitted).
29
City of Canton, 489 U.S. at 388; Doe, 15 F.3d at 453.
10
merely inept, erroneous, ineffective, or negligent do not amount to
deliberate indifference and do not divest officials of qualified
immunity.”30 “To satisfy the deliberate indifference prong, a
plaintiff usually must demonstrate a pattern of violations and that
the inadequacy of the training is ‘obvious and obviously likely to
result in a constitutional violation.’”31 “[I]t may happen that in
light of the duties assigned to specific officers or employees the
need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional
rights,” a supervisor might reasonably be found to be deliberately
indifferent.32
C
We are persuaded that there is no material issue on the record
before us with respect to the question of whether Appellants were
deliberately indifferent. Because this case falters on the
requirement of deliberate indifference, we need not address the
other two prongs of supervisory liability.
The district court carefully detailed the evidence that
Plaintiffs relied upon in support of their supervisory liability
claims:
(1) testimony [regarding SWAT team training
exercises] from Ann Shelton, a former NRHPD
30
Alton, 168 F.3d at 201.
31
Cousin, 325 F.3d at 637 (quoting Thompson, 245 F.3d at 459).
32
City of Canton, 489 U.S. at 390; see Snyder v. Trepagnier, 142 F.3d 791,
798 (5th Cir. 1998).
11
SWAT team member, indicating that Shockley and
Wallace knew or should have known that Hill
was likely to fire his weapon inappropriately
or illegally;
(2) Shelton’s testimony that prior to the
shooting of Troy Davis, when Hill
intentionally exposed himself during the
snapping of a team photograph at SWAT training
exercise . . . Shockley and Wallace failed to
take adequate disciplinary action against Hill
. . .;
(3) evidence that Hill frequently exposed
himself to other members of the NRHPD and, as
a result, had acquired the nickname “Penie”;
(4) evidence in Hill’s background
investigation showing Hill had a propensity
for violence; [and]
(5) testimony that Shockley and Wallace failed
to take any action after receiving a complaint
from Randy Cole, a citizen who had been pulled
over by Hill for a traffic violation prior to
the shooting death of Troy Davis, [in the
course of which Cole claimed to Shockley and
Wallace that] Hill was a “rogue” cop, behaved
“like a psycho” and was “going to kill
somebody.”33
Even accepted as true and taken as a whole, the above evidence
is legally insufficient--and thus not material--to support a
finding of deliberate indifference.
1
33
Davis, No. 4:00-CV-438-Y, at *43-*45 & n.50 (footnotes and citations
omitted, line breaks added). One piece of evidence, the “failure of Shockley or
Wallace to take any immediate disciplinary action against any of the defendant
officers after Ann Shelton’s nameplate appeared in photographs from the crime
scene at the Davises’ residence,” id. at *45, has been omitted from our
discussion. As Appellants correctly point out, it is a non-starter because it
involves actions after the alleged constitutional violation.
12
We are persuaded that these facts do not demonstrate a prior
pattern by Hill of violating constitutional rights by employing
excessive force. We have stressed that a single incident is
usually insufficient to demonstrate deliberate indifference.34 In
Cousin v. Small, for example, we held that “[t]o succeed on his
claim of failure to train or supervise” the plaintiff must
demonstrate deliberate indifference, which usually requires a
plaintiff to “demonstrate a pattern of violations.”35 Similarly,
in Snyder v. Trepagnier, we held that “proof of a single violent
incident ordinarily is insufficient” for liability.36 Rather, the
“plaintiff must demonstrate ‘at least a pattern of similar
34
See, e.g., Cozzo, 279 F.3d at 288; Thompson, 245 F.3d at 459; Snyder,
142 F.3d at 798. Plaintiffs’ attempt to distinguish the present case as
involving supervision as opposed to training is unpersuasive. Claims of
inadequate supervision and claims of inadequate training both generally require
that the plaintiff demonstrate a pattern. Burge, 336 F.3d at 370 (proof of
deliberate indifference “generally requires a showing ‘of more than a single
instance of the lack of training or supervision causing a violation of
constitutional rights’” (quoting Thompson, 245 F.3d at 459)); accord Cousin, 325
F.3d at 637; cf. Brown v. Bryan County, 219 F.3d 450, 462 (5th Cir. 2000)
(concluding that single decision constituted “deliberate indifference” where
there was “no training (and no supervision)” of the subordinate).
We note that in some instances there might be a relevant distinction
between cases involving inadequate hiring and cases involving failure to
supervise or train. See Bryan County, 520 U.S. at 410 (cautioning against wholly
importing the reasoning of training cases into the hiring context and noting that
“[u]nlike the risk from a particular glaring omission in a training regimen, the
risk from a single instance of inadequate screening of an applicant’s background
is not ‘obvious’ in the abstract; rather it depends upon the background of the
applicant”); see also Brown, 219 F.3d at 461 (noting that the Supreme Court in
Bryan County rejected the attempt to analogize hiring claims to failure-to-train
claims “because of the greater predictability of the consequences that flow from
the failure to train an employee”).
35
Cousin, 325 F.3d at 637 (emphasis added).
36
142 F.3d at 798.
13
incidents in which the citizens were injured.’”37 Moreover, a
showing of deliberate indifference requires that the Plaintiffs
“show that the failure to train reflects a ‘deliberate’ or
‘conscious’ choice to endanger constitutional rights.”38
Prior indications cannot simply be for any and all “bad” or
unwise acts, but rather must point to the specific violation in
question.39 That is, notice of a pattern of similar violations is
required.40 While the specificity required should not be
exaggerated, our cases require that the prior acts be fairly
similar to what ultimately transpired and, in the case of excessive
use of force, that the prior act have involved injury to a third
party.41
None of the facts highlighted by the district court indicated
use of excessive force against a third party resulting in injury.
37
Id. at 798-99 (emphasis added) (quoting Rodriguez v. Avita, 871 F.2d
552, 554-55 (5th Cir. 1989))
38
Id. at 799 (citing City of Canton, 489 U.S. at 109).
39
Id. at 798; see also Burge, 336 F.3d at 371 (evidence “not sufficient
to establish deliberate indifference or knowledge” that a constitutional
violation “would be a highly likely consequence”); cf. Bryan County, 520 U.S. at
412 (holding that a finding of supervisory liability for inadequate screening
“must depend on a finding that this officer was highly likely to inflict the
particular injury suffered by the plaintiff”).
40
See Roberts, 397 F.3d at 294 (rejecting plaintiffs’ proffered pattern
where it required “an excessively high level of generality”).
41
See, e.g., Snyder, 142 F.3d at 798 (“[P]laintiff must demonstrate at
least a pattern of similar incidents in which the citizens were injured.”
(internal quotation marks and citation omitted)); see also Gros, 209 F.3d at 435
(noting in hiring case that subordinate had never “used excessive force against
any third party”).
14
First, while Hill’s over-“exposed” photography stunt42 and his
earned nickname collectively demonstrate lack of judgment, crudity,
and, perhaps illegalities, they do not point to past use of
excessive force.43 Similarly, the traffic stop,44 while perhaps
improper in its own right, did not involve excessive force with a
deadly weapon resulting in harm to a citizen in a context similar
to the present case.45
42
The district court found that Hill was suspended for two weeks as a
result of the photography incident. Id. at *44 n.47.
43
See Roberts, 397 F.3d at 294 (“We do not deny that this evidence appears
to reflect badly on [the subordinate’s] judgment, but it proves nothing about
[the subordinate’s] actual use of deadly force in the much different context of
this case, nor is it relevant to whether [the supervisor] was on notice that [the
subordinate] might use excessive force when confronted with a speeding vehicle
while standing in the street directing traffic.”).
44
The district court recounted that Cole, in his complaint, stated that
during the traffic stop Hill became “very angry . . ., pounded on Cole’s window,
threatened to take him to jail, ordered him out of his car, and made him lean up
against the car with his hands behind his back.” Davis, No. 4:00-CV-438-Y, at
*45 n.50. Cole characterized Hill as a “‘rogue’ cop” who “behaved ‘like a
psycho’ and was ‘going to kill somebody.’” Id.
45
Cole’s traffic stop allegations, even assuming them to be true and
brought to the attention of Shockley and Wallace, are unsubstantiated. In Gros
v. City of Grand Prairie, assessing a claim of deliberate indifference, we noted
that although there was a complaint that the police officer improperly drew his
weapon during a traffic stop, that complaint had not been sustained. 209 F.3d
at 435.
Another court has similarly refused to place much weight on such
allegations in considering a municipality’s section 1983 liability and noted that
“[i]t would be perverse to require that courts exclude allegations of past
wrongdoing in order to protect the rights of defendants, while at the same time
demanding that police officials give credence to unsubstantiated complaints
against individual police officers.” Brooks v. Scheib, 813 F.2d 1191, 1194 (11th
Cir. 1987).
This line of thinking is not without merit, helping to guard against
allowing unsubstantiated complaints--of which, even in the absence of wrongdoing,
there are likely many, especially by those on the receiving end of a traffic
stop--to undermine the prohibition against collapsing supervisory liability into
“functionally the respondeat superior regime the Supreme Court has repeatedly
rejected.” Pineda v. City of Houston, 291 F.3d 325, 330 (5th Cir. 2002); see
Bryan County, 520 U.S. at 410 (“To prevent municipal liability . . . from
collapsing into respondeat superior liability, a court must carefully test the
link between the policymaker’s inadequate decision and the particular injury
15
By comparison, in Roberts v. City of Shreveport, we recently
held that a habit of displaying a firearm during traffic stops does
not constitute a relevant pattern with respect to using deadly
force during a traffic stop.46 Here, there is no evidence that Hill
had previously improperly displayed his weapon to a third party, or
used excessive force.
Second, Hill’s inappropriate use of his gun during training
is, at first blush, more troubling. Hill inappropriately fired his
weapon in mock settings apparently much like the scene in which
Hill ultimately shot Davis. However, because it was a training
exercise it is undisputed that no one’s constitutional rights were
violated and that Hill never used excessive force against a third
party.
Furthermore, we hesitate in analyzing supervisory liability to
place too much emphasis on mistakes during training. We are wary
of creating incentives to conduct less training so as to minimize
the chance that a subordinate will make a training mistake that can
be used against the supervisor if that subordinate later makes a
mistake in the course of duty. More to the point, in training
alleged.”); cf. Brooks, 813 F.2d at 1193 (“[T]he number of complaints bears no
relation to their validity. . . . [T]here is a logical explanation as to why a
large number of complaints have been lodged against [the officer]: [he]
patrolled a high crime area [where] experienced ‘customers’ frequently use
citizens’ complaints as a means of harassing officers who arrest them.”).
In any case, because there is no evidence that Hill used excessive force
during the traffic stop, even giving the single complaint full credence, it is
immaterial in the context of the record before us.
46
397 F.3d at 294.
16
mistakes are the fodder and “adequately trained officers
occasionally make mistakes; the fact that they do says little about
the training program or the legal basis” for holding a supervisor
liable.47 Even if a fact finder were to infer that Hill’s training
did not stick or that he resisted it, the incidents in training did
not effect a violation of a third party’s rights. On this record,
Appellants cannot be deemed deliberately indifferent by failing to
supervise or train differently.
Third, as to the background report indicating that Hill “comes
off too aggressive at times,” there is no evidence to suggest that
either Wallace or Shockley was aware of it, and the district court
did not impute knowledge of the report to either of them.48
Finally, the facts here stand in stark contrast to those in a
case like Camilo-Robles v. Hoyos where the First Circuit affirmed
the denial of qualified immunity for police supervisory officials.49
In Camilo-Robles, the court recounted a subordinate officer’s
service record, terming it “a career to make St. Sebastian weep.”50
47
City of Canton, 489 U.S. at 391.
48
See Smith, 158 F.3d at 912 (“[T]he official must . . . be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists . . . .” (internal quotation marks and citations omitted)); see also
Wassum v. City of Bellaire, 861 F.2d 453, 456-57 (5th Cir. 1988).
Moreover, were we to analyze the evidence in the report in a manner similar
to a deficient hiring case, it would fall short of the stringent standard for
such cases. See Bryan County, 520 U.S. at 410; Gros, 209 F.3d at 436; Aguillard
v. McGowen, 207 F.3d 226 (5th Cir. 2000).
49
151 F.3d at 14-15.
50
Id. at 4.
17
The subordinate had a known history of assaulting his wife, holding
hostages at gunpoint at the police station, assaulting another
civilian, and shooting two law-abiding neighborhood residents (one
of them died).51 In light of this background, the court held that
qualified immunity was properly denied to police supervisors who
had rearmed and helped put this officer back to work, at which
point another incident predictably occurred. The present case,
lacking a pattern of excessive force against a third party, falls
far short of the subordinate’s “career” in Camilo-Robles.52
In sum, there is no conduct from which it could be reasonably
concluded that these supervisors made a deliberate or conscious
choice to endanger constitutional rights.
2
We do not suggest that a single incident, as opposed to a
pattern of violations, can never suffice to demonstrate deliberate
indifference.53 It is true that there is a so-called “single
incident exception,” but it is inherently “a narrow one, and one
51
Id. at 5, 14-15. The court noted that “[h]is record reflects numerous
disciplinary infractions involving violent and/or threatening behavior--we count
at least eighteen--many of which entailed unwarranted brandishing of his weapon.”
Id. at 5.
52
We also note that we have never adopted the First Circuit’s test for
deliberate indifference, which the district court followed. See Davis, No. 4:00-
CV-438-Y, at *42 (“‘To demonstrate deliberate indifference a plaintiff must show
(1) a grave risk of harm, (2) the defendant’s actual or constructive knowledge
of that risk, and (3) his failure to take easily available measures to address
the risk.’” (quoting Camilo-Robles, 151 F.3d at 7)).
53
See Brown, 219 F.3d at 462.
18
that we have been reluctant to expand.”54 “To rely on this
exception, 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.”55 Hill’s
history does not fall within this exception.
We did find a single incident to suffice in Brown v. Bryan
County, concluding that there was an utter failure to train and
supervise.56 We later observed that we found liability in Brown for
a single incident when the county “failed to provide any training
or supervision for a young, inexperienced officer with a record of
recklessness,” while also noting that “there is a difference
between a complete failure to train, as in [Brown v. Bryan County],
and a failure to train in one limited area.”57
In contrast, here, there was training and Plaintiffs have not
shown that those training sessions were so deficient as to
constitute deliberate indifference. The training sessions were in
54
Burge, 336 F.3d at 373 (citing Pineda, 291 F.3d at 334-35); see Gabriel
v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000) (“We have consistently
rejected application of the single incident exception and have noted that ‘proof
of a single violent incident ordinarily is insufficient to hold a municipality
liable for inadequate training.’” (quoting Snyder v. Trepagnier, 142 F.3d 791,
798 (5th Cir.1998))); see also Conner v. Travis County, 209 F.3d 794, 797 (5th
Cir. 2000).
55
Roberts, 397 F.3d at 295 (quoting Brown, 219 F.3d at 461).
56
219 F.3d at 462.
57
Cozzo, 279 F.3d at 288 (internal quotation marks and citations omitted)
(emphasis added in Cozzo); see also Roberts, 397 F.3d at 295-96 (distinguishing
Brown v. Bryan County).
19
fact right on point, albeit a trier of fact might conclude not
completely successful with Hill. It is not enough to say that more
or different training or supervision would have prevented the
result of the ill-fated raid.58
V
We are persuaded that qualified immunity should have been
granted to Shockley and Wallace and we must reverse the decision
not to do so.
REVERSED.
58
See City of Canton, 489 U.S. at 392 (“In virtually every instance where
a person has had his or her constitutional rights violated by a city employee,
a § 1983 plaintiff will be able to point to something the city ‘could have done’
to prevent the unfortunate incident.”); see also Roberts, 397 F.3d at 293
(“[M]ere proof that the injury could have been prevented if the officer had
received better or additional training cannot, without more, support liability.”).
20