UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-5376
JILL BROWN,
Plaintiff-Appellee,
Cross-Appellant
VERSUS
BOARD OF THE COUNTY COMMISSIONERS
OF BRYAN COUNTY, OKLAHOMA, ET AL.,
Defendants-Appellants,
Cross-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(Opinion June 2, 5th Cir., 1995, F.3d )
(October 23, 1995)
Before REYNALDO G. GARZA, WIENER, and EMILIO M. GARZA, Circuit
Judges.
REYNALDO G. GARZA, Circuit Judge:
SUBSTITUTE PANEL OPINION1
A claim for damages was brought against Reserve Deputy Stacy
Burns (Burns) and Bryan County, Oklahoma (Bryan County),2 by Jill
1
The original panel opinion, to which Judge Emilio M. Garza
dissented, Brown v. Bryan County, Ok., 53 F.3d 1410 (5th Cir.
1995), is withdrawn and is replaced in toto by this opinion, in
which Judge Wiener continues to concur.
2
This suit was originally brought against several parties, but
the district court dismissed the claims concerning the other
Defendants, leaving Bryan County and Stacy Burns as the only
Brown (Mrs. Brown) pursuant to 42 U.S.C. § 1983 and Oklahoma law.
The case proceeded to trial, in which the jury found in favor of
the Plaintiff on every interrogatory submitted. The district court
entered a judgment in accordance with the jury's verdict with one
exception: Mrs. Brown was not allowed to recover for loss of past
income or future earning capacity. Burns and Bryan County
(collectively the "Appellants") appeal the judgment against them
while Mrs. Brown appeals the portion of the judgment that denied
her recovery for lost past income and future earning capacity. For
the reasons stated below we affirm the district court's judgment.
BACKGROUND
In the early hours of May 12, 1991, Todd Brown (Mr. Brown) and
Mrs. Brown were traveling from Grayson County, Texas, to their home
in Bryan County, Oklahoma. After crossing into Oklahoma, Mr.
Brown, who was driving, noticed a police checkpoint. He decided to
avoid the checkpoint and headed back to Texas, allegedly to spend
the night at his mother's house. Although the parties offer
conflicting stories leading to the pursuit, Deputy Sheriff Robert
Morrison (Deputy Morrison) and Burns stated that they "chased" the
Browns' vehicle at a high rate of speed before successfully pulling
it over. Mr. Brown testified that he was oblivious to the
deputies' attempts to overtake him until both vehicles had traveled
approximately three miles.3 By the time the two vehicles
Defendants.
3
Apparently, the road traveled on was winding, thereby,
diminishing the visibility of other vehicles approaching from
behind.
2
eventually stopped, the parties had crossed into Grayson County,
Texas, four miles from the Oklahoma checkpoint.
Immediately after exiting the squad car, Deputy Morrison
unholstered his weapon, pointed it toward the Browns' vehicle and
ordered the occupants to raise their hands. Burns, who was
unarmed,4 rounded the corner of the truck to the passenger's side.
After twice ordering Mrs. Brown from the vehicle, Burns pulled her
from the seat of the cab and threw her to the ground. Burns
employed an "arm bar" technique whereby he grabbed Mrs. Brown's arm
at the wrist and elbow, extracted her from the vehicle and spun her
to the ground. Mrs. Brown's impact with the ground caused severe
injury to her knees, requiring corrective surgery.5 While Mrs.
Brown was pinned to the ground, Burns handcuffed her and left to
assist Deputy Morrison in subduing her husband. Mrs. Brown
remained handcuffed anywhere from a minimum of thirty minutes to
just over an hour.
According to Mrs. Brown's version of the facts, which will be
reviewed in greater detail below, the deputies' pursuit and the
force consequently applied against her were unprovoked.
Furthermore, she claims that her detention constituted false
imprisonment and false arrest. Due to the injuries resulting from
that encounter, Mrs. Brown seeks compensation from Burns and Bryan
4
Although Burns was working for the Sheriff's Department, he
was not authorized to carry a firearm or drive a squad car.
5
Mrs. Brown received a total of four operations on her knees.
Moreover, medical testimony was elicited at trial which showed that
Mrs. Brown would ultimately require total knee replacements.
3
County. Mrs. Brown premised the county's liability, inter alia, on
the hiring of Burns by Sheriff B.J. Moore (Sheriff Moore), the
county policymaker for the Sheriff's Department.
DISCUSSION
The Appellants have presented this Court with a host of issues
to support their position that the lower court erred. For
efficiency's sake, we will address only those points that we
believe merit review. We first address the claims against Burns
for the constitutional injuries that Brown suffered.
I.
In their first argument, Burns and Bryan County allege that
the force applied against Mrs. Brown was proper. Appellants claim
that the evidence "undisputedly" established that Burns' actions on
the morning of May 12, 1991, were objectively reasonable.
Therefore, the jury's findings should be reversed.
All claims that a law enforcement officer has used excessive
force - deadly or not - in the course of an arrest, investigatory
stop, or other "seizure" of a free citizen, are analyzed under the
Fourth Amendment and its "reasonableness" standard. Graham v.
Connor, 490 U.S. 386, 395 (1989). The test of reasonableness under
the Fourth Amendment requires
careful attention to the facts and circumstances of each
particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest
by flight.
Id. at 396. The "reasonableness" of the particular force used must
be judged from the perspective of a reasonable officer at the
4
scene, rather than with the 20/20 vision of hindsight. Id. In
cases implicating excessive force, "not every push or shove, even
if it may later seem unnecessary in the peace of a judge's
chambers," violates the Fourth Amendment. Id. (citation omitted).
Thus, the question is whether the officer's actions are
"objectively reasonable" in light of the facts and circumstances
confronting him, without regard to his underlying intent or
motivation. Id. at 397.
Determining whether Burns' actions were reasonable depends on
whose story the trier of fact accepts as true. According to the
testimony of Burns and Deputy Morrison, they were involved in a
"high-speed" pursuit6 after the Browns abruptly turned their truck
and sped from the checkpoint. After a four mile "chase" both
vehicles came to a full stop. The deputies exited their vehicle
and made several commands for the occupants to raise their hands
before those commands were obeyed. After rounding the truck, Burns
twice ordered Mrs. Brown to exit the vehicle, but she did not
comply. He then perceived that she was "lean[ing] forward" in the
cab of the truck as if she were "grabbing a gun."7 He was "scared
to death," so he extracted her from the vehicle. He spun her
around, dropped her to the ground via the arm bar maneuver and
handcuffed her. That was the lowest amount of force he deemed
6
The deputies testified that they were pursuing the Browns at
speeds in excess of 100 miles per hour.
7
The fact that two firearms were found in the truck after the
arrest does not make Burns actions any more or less reasonable,
unless his actions had resulted from the observation of those guns
prior to the arrest. That was not the case, however.
5
necessary to extract her and ensure he and his partner's safety.
Certainly, Appellants' version of the facts supports a claim
that Burns acted reasonably and with an appropriate amount of
force. The Browns, however, paint a strikingly different picture.
They testified that they were oblivious to the attempts made by the
deputies to catch up to them (the Browns) after avoiding the
Oklahoma checkpoint.8 Mr. Brown avoided that stop because he
feared the possibility of being harassed or unnecessarily detained
by the deputies.9 He further testified that he did not believe
that he turned the truck around either in a reckless fashion nor
with wheels squealing or throwing gravel, and that he drove away at
a normal rate of speed. Finally realizing that they were being
pursued, Mr. Brown pulled over only to find a gun pointed at him.
They were ordered to put their hands up and they did so.
Mrs. Brown then testified that Burns ran to her side of the
vehicle and ordered her to get out. She was paralyzed with fear
and heard Burns repeat the command. According to her testimony,
however, she was not slow in responding to Burns' orders and she
did not make any sudden moves while exiting the vehicle. Her only
forward movement was to exit the truck and, contrary to Burns'
testimony, she did not reach for anything. Then, while she was
8
Mr. Brown testified that initially, he did not hear any
police sirens, or observe a squad car following them. Finally,
after driving for several minutes at speeds of 40 to 55 miles per
hour, he glimpsed the blue lights from the deputies' vehicle and
determined that he was being pursued. He stopped the truck at the
first available opportunity.
9
Mr Brown alleged that he had been unnecessarily detained at
that checkpoint on several occasions.
6
exiting the truck, Burns suddenly grabbed her arm, yanked her out,
spun her around and threw her to the pavement. She could not break
her fall because one arm was raised and Burns firmly gripped the
other.
In addition to this conflicting testimony, both sides elicited
expert testimony concerning the reasonableness of Burns' actions.
Mrs. Brown's expert, for example, concluded that the force applied
by Burns in this situation was unjustified and excessive.10 The
jury weighed all the evidence, evaluated the conflicting testimony
and rendered a verdict in Mrs. Brown's favor. Under our standard
of review,11 when the evidence supports the verdict, this Court will
not impose its own opinion in contravention to the jury's.
10
The expert did acknowledge that the force used was the lowest
force that could have been applied in extracting and subduing an
arrestee without endangering either party. However, he did not
feel that the situation required this type of force.
11
The standard for appellate review of a jury's verdict is
exacting. Granberry v. O'Barr, 866 F.2d 112, 113 (5th Cir. 1988).
It is the same standard as applied in awarding a directed verdict
or a judgment notwithstanding the verdict and is referred to as the
"sufficiency of the evidence" standard. Id. The standard is as
follows:
"The verdict must be upheld unless the facts and
inferences point so strongly and so overwhelmingly in
favor of one party that reasonable men could not arrive
at any verdict to the contrary. If there is evidence of
such quality and weight that reasonable and fair minded
men in the exercise of impartial judgment might reach
different conclusions, the jury function may not be
invaded."
Id. (quoting Western Co. of North Am. v. United States, 699 F.2d
264, 276 (5th Cir.), cert. denied, 464 U.S. 892 (1983)). Stated
another way, the Court should consider all of the evidence, not
just that evidence which supports the nonmovant's case, in the
light and with all reasonable inferences most favorable to the
nonmovant. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.
1969) (en banc).
7
Therefore, we will not interfere with the fact finder's conclusion
that Burns' actions were unreasonable and that the force he used
was excessive.
II.
Notwithstanding the jury's findings, Appellants also assert
that there was probable cause to arrest Mrs. Brown. They argue
that the facts justified Burn's actions, thereby precluding Mrs.
Brown's § 1983 claim for false arrest.
There is no cause of action for false arrest under § 1983
unless the arresting officer lacked probable cause. Fields v. City
of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir. 1991). To
determine the presence or absence of probable cause, one must
consider the totality of the circumstances surrounding the arrest.
United States v. Maslanka, 501 F.2d 208, 212 (5th Cir. 1974),12
cert. denied, 421 U.S. 912 (1975). Whether officers have probable
cause depends on whether, at the time of the arrest, the "`facts
and circumstances within their knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a
prudent man in believing that [the arrested] had committed or was
committing an offense.'" Id. (quoting Beck v. Ohio, 379 U.S. 89,
91 (1964)). Furthermore, although flight alone will not provide
probable cause that a crime is being committed, in appropriate
12
In Maslanka, a police officer observed a car coming down a
road and, upon seeing his unmarked car, it turned around and sped
away in flight. This Court found that this observation provided
sufficient facts for an officer to investigate. Maslanka, 501 F.2d
at 213. Upon stopping the car, the officer smelled marihuana
smoke, creating the probable cause necessary to arrest the
passengers. Id.
8
circumstances it may supply the "`key ingredient justifying the
decision of a law enforcement officer to take action.'" United
States v. Bowles, 625 F.2d 526, 535 (5th Cir. 1980) (quoting United
States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.), cert. denied,
429 U.S. 979 (1976)).
To reiterate, whether Burns had probable cause to arrest Mrs.
Brown depends in large part on whether the facts, as Burns knew
them, were sufficient to warrant a prudent man's belief that Mrs.
Brown committed or was in the process of committing a crime. The
facts material to that determination were hotly contested,
especially the contradictory testimony relating to the pursuit and
Mrs. Brown's movements while exiting the vehicle. Thus, it was for
the fact finder to determine whether Burns had probable cause to
arrest Mrs. Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602
(5th Cir. 1994). Assuming arguendo that the deputies had a
reasonable suspicion to perform an investigatory stop, we
nevertheless find the evidence sufficient to support the jury's
finding that Burns did not have probable cause to arrest Mrs.
Brown, and that his doing so violated her constitutional right to
be free from false arrest.
As the jury found that Burns did not have probable cause to
detain or arrest Mrs. Brown, it could also find from the evidence
that she was falsely imprisoned. To set out a claim for false
imprisonment the plaintiff must prove (1) an intent to confine, (2)
acts resulting in confinement, and (3) consciousness of the victim
of confinement or resulting harm. Harper v. Merckle, 638 F.2d 848,
9
860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816 (1981).
Under § 1983, the plaintiff must also prove the deprivation of a
constitutional right, i.e., an illegality under color of state law.
Id. The evidence establishes that Mrs. Brown believed herself to
be under arrest: even though she had committed no crime, she
remained handcuffed for approximately an hour before being
released, during which time she was never informed of the nature of
the charges for which she was being detained, and subsequently no
charges were ever brought. In light of such evidence, a finding of
false imprisonment is proper.13
III.
Appellants also contest the jury's finding that Burns was not
entitled to qualified immunity. A proper analysis of a qualified
immunity defense requires us to conduct a two (sometimes three)
prong inquiry. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct.
1789, 114 L.Ed.2d 277 (1991); Harlow v. Fitzgerald, 457 U.S. 800,
102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). First, we determine
"whether the plaintiff has asserted a violation of a constitutional
right at all." Siegert, 500 U.S. at ___, 111 S.Ct. at 1793.
Second, we establish whether the law was clearly established at the
time of the official's action. Siegert, 500 U.S. at ___, 111 S.Ct.
at 1794; Harlow, 457 U.S. at 815-19, 102 S.Ct. at 2737-38. Third,
we evaluate the "objective reasonableness of [the] official's
conduct as measured by reference to clearly established law."
13
As this Court finds that liability was proper for the claims
of excessive force, false arrest and false imprisonment, it need
not address the state law issues involved herein.
10
Harlow, 457 U.S. at 818, 102 S.Ct. at 2739. It is clear that by
1991, use of excessive force, false arrest and false imprisonment
had been held to violate citizens' constitutional rights, thus the
qualified immunity defense fails if Burns did not act with probable
cause. And as the trier of fact determined that Burns did not have
probable cause to arrest Mrs. Burns, he is not entitled to
qualified immunity.14
IV.
Burns asserts that the evidence is insufficient to support the
jury's award of punitive damages. He argues that application of
the arm bar technique did not rise to a level of "flagrant" conduct
and further, that it did not evidence malice or give rise to an
inference of evil intent.15 Nevertheless, the Supreme Court has
ruled that punitive damages are recoverable in a § 1983 action.
Smith v. Wade, 461 U.S. 30, 35 (1983). One of the primary reasons
for § 1983 actions and punitive damages is to deter future
egregious conduct. Id. at 49. A jury may assess punitive damages
in an action under § 1983 if the defendant's conduct is shown to be
motivated by evil motive or intent, or involved reckless or callous
indifference to the federally protected rights of others. Id. at
56. The question is whether the acts of Burns, which caused the
14
"While it is correct that the reasonableness of the arresting
officer's conduct under the circumstances is a question of law for
the court to decide, such is not the case where there exist
material factual disputes . . . ." Harper v. Harris County, Tex.,
21 F.3d 597, 602 (5th Cir. 1994) (discussing officer's qualified
immunity).
15
Mrs. Brown did not respond to this argument in her briefs.
11
deprivation of Mrs. Brown's constitutional rights, rose to a level
warranting the imposition of punitive damages. In light of the
evidence before it, we believe that the jury could properly infer
that Burns' acts were unjustified and that he acted with callous or
reckless indifference to Mrs. Brown's constitutional rights.
Therefore, punitive damages were justified.
V.
On cross-appeal, Mrs. Brown argues that it was error for the
district court to grant Appellants' Motion for Judgment
Notwithstanding the Jury Verdict (JNOV) as it relates to her claims
for loss of past income and future earning capacity.16 Mrs. Brown
asserts that neither Bryan County nor Burns specifically raised an
issue concerning the sufficiency of the evidence supporting that
portion of the judgment, thus the district court's action was
unjustified and the award must be reinstated. She insists that
there is absolutely no legal predicate on which the district court
could base its actions. Therefore, as evidence was offered to
support this award, Mrs. Brown argues that the original jury award
should be reinstated.
This Court has determined that it "would be a constitutionally
impermissible re-examination of the jury's verdict for the district
16
In the order, the district court stated "[t]he jury awarded
plaintiff substantial damages in this case, including $36,000 for
loss of income in the past and $180,000 for loss of earning
capacity in the future. After a review of the evidence in this
case, the Court is convinced that there is no legally sufficient
evidentiary basis for the award of these damages. Therefore,
judgment should be granted for the defendants on plaintiff's claims
for loss of income in the past and loss of earning capacity in the
future."
12
court [or this Court] to enter judgment n.o.v. on a ground not
raised in the motion for directed verdict." McCann v. Texas City
Refining, Inc., 984 F.2d 667, 672 (5th Cir. 1993). It is
undisputed that the Appellants did not address the sufficiency of
the evidence supporting the jury's award for loss of past income
and future earning capacity in their motions for either directed
verdict or JNOV. Thus, the lower court should not have decided
whether sufficient evidence exists to support this award. However,
as the Appellants point out, Mrs. Brown failed to object to this
error at trial, and it is the "unwavering rule in this Circuit that
issues raised for the first time on appeal are reviewed only for
plain error." Id. In other words, this Court will reverse only if
the error complained of results in a "manifest miscarriage of
justice." Id. Furthermore, contrary to Mrs. Brown's contention,
the issue is not whether any evidence exists to support the jury
verdict. Instead, the issue is whether the district court's action
constituted plain error.
Upon reviewing the record, we do not believe that the lower
court's error resulted in a manifest miscarriage of justice. The
only evidence offered in support of the award comprised of Mrs.
Brown's testimony, which reflected that she had accepted an offer
to commence work a few days after the day of the incident. Her
compensation would have been measured on a commission basis, which
she believed would have paid between $1,500 to $1,800 a month. The
district court's ruling that this evidence was lacking does not
arise to plain error. Mrs. Brown's failure to object at the
13
appropriate time denied the district court the opportunity to
rectify any errors. Therefore, the court's ruling will stand.
VI.
Having found that Burns violated Mrs. Brown's constitutional
rights, the next inquiry concerns the possible liability of Bryan
County. Liability will accrue for the acts of a municipal official
when the official possesses "final policymaking authority" to
establish municipal policy with respect to the conduct that
resulted in a violation of constitutional rights. Pembaur v. City
of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion).
Bryan County stipulated that Sheriff Moore was the final
policymaker for the Sheriff's Department. As such, it is patently
clear that Sheriff Moore17 is an official "whose acts or edicts may
fairly be said to represent official policy and whose decisions
therefore may give rise to municipal liability under § 1983." Id.
at 480 (citing Monell, 436 U.S. at 694).
Mrs. Brown argues that a municipality can be held liable under
§ 1983 based on a final policymaker's single decision regarding the
hiring or training of one individual. Appellants, on the other
hand, argue that § 1983 liability cannot attach on the basis of a
policymaker's single, isolated decision to hire or train one
individual.
An argument similar to the Appellants' was rejected by this
17
Appellants failed to object to the jury instructions which
referred to Sheriff Moore as the final policymaker. See Gonzalez v.
Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir. 1993)
(failure to lodge an objection to court's instructions regarding
the final policymaker waived the issue).
14
Court in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754
(5th Cir. 1993). In Gonzalez, the Ysleta Independent School
District (YISD) was sued for a single decision to transfer a
teacher accused of sexually harassing a student, rather than
removing him from the classroom. YISD argued that this ad hoc,
isolated decision, even when made by policymakers, did not
constitute the sort of "policy" upon which municipal liability
could be predicated under Monell. This was especially true there,
insisted YISD, as the decision was contrary to the district's own
formal policy for handling such matters. This argument proved
unpersuasive.
Based on the facts before it, the Gonzalez panel concluded
that the final policymaker's single, conscious decision, i.e., the
Board of Trustee's decision to transfer the teacher rather than
remove him from the classroom, constituted a "policy" attributable
to the school district. Gonzalez, 996 F.2d at 754. This
conclusion was logical, as "[n]o one has ever doubted . . . that a
municipality may be liable under § 1983 for a single decision by
its properly constituted legislative body . . . because even a
single decision by such a body unquestionably constitutes an act of
official government policy." Pembaur, 475 U.S. at 480 (emphasis
added).18 To deny compensation to the victim in such a case would
18
In Pembaur, the Supreme Court held that a county prosecutor's
single decision, ordering law officers to forcibly enter a
dentist's office, was actionable under § 1983. 475 U.S. at 480-81.
However, the Court cautioned that liability would only attach where
the course of action was deliberately chosen by a decisionmaker
possessing final authority to establish municipal policy. Id. at
481. We note that Mr. Pembaur's § 1983 action was premised on a
15
be contrary to the fundamental purpose of § 1983. Id. at 481. So,
it is clear that a single decision may create municipal liability
if that decision were made by a final policymaker responsible for
that activity.
Mrs. Brown argues that Burns' lengthy criminal history should
have prevented Sheriff Moore from hiring him. Burns' history
revealed a string of offenses that, she claims, demonstrates a
disregard for the law and a propensity for violence. Moreover, she
maintains that a thorough investigation of Burns' background would
have revealed that his parole had been violated by his numerous
offenses. Thus, she argues that Burns' screening and subsequent
employment by Sheriff Moore were inadequate and subjected Bryan
County to liability.
During the application process Sheriff Moore ordered a
printout of Burns' criminal record, which revealed the following
citations and arrests: nine moving traffic violations, Actual
Physical Control (APC) of a motor vehicle while intoxicated,
driving with a suspended license, arrest for assault and battery,
conviction for possession of a false identification and an arrest
for resisting lawful arrest. When Sheriff Moore was examined about
Burns' "rap sheet," the following exchange took place:
Q. Did you make an inquiry with the proper authorities in Oklahoma
to get a copy of Mr. Burns' rap sheet?
A. I run his driving record, yes.
theory of municipal policy and not on a theory of municipal custom.
Id. n.10.
16
Q. All right. And you can get that rap sheet immediately, can't
you?
A. It don't take long.
Q. All right. And did you not see on there where Mr. Burns had
been arrested for assault and battery? Did you see that one on
there?
A. I never noticed it, no.
Q. Did you notice on there he'd been arrested or charged with
[Driving While License Suspended] on several occasions?
* * *
A. I'm sure I did.
Q. All right. Did you notice on there that he'd been arrested and
convicted for possession of false identification?
A. No, I never noticed that.
Q. Did you notice on there where he had been arrested for public
drunk?
A. He had a long record.
Q. Did you notice on there where he had been arrested for
resisting arrest?
A. No, I didn't.
Q. Did you make any inquiries after you got that information to
determine exactly what the disposition of those charges were?
A. No, I didn't.
Q. Did you not make any attempt to find out the status of Mr.
Burns' criminal record at that time?
A. As far as him having a criminal record, I don't believe he had
a criminal record. It was just all driving and -- most of it was,
misdemeanors.
Q. Well, did you make any attempts to determine whether or not Mr.
Burns was on probation at the time you placed him out there?
A. I didn't know he was on probation, no.
Q. Did you make any effort to find out?
A. I didn't have no idea he was on probation, no.
17
Q. Well, you saw on his rap sheet where he had been charged with
[Driving Under the Influence], didn't you?
A. I had heard about that. I don't remember whether I had seen it
on the rap sheet or not.
Q. So you'd heard about it?
* * *
A. I don't remember whether I seen it on the rap sheet or heard
about it.
Besides this damaging testimony, Mrs. Brown's expert19
testified regarding the importance of properly screening law
enforcement applicants. The expert testified that a thorough
investigation process is needed to weed out individuals who enter
the police force for the wrong reasons, for example, because "they
like to exert their power." In light of Burns' arrest record, the
expert concluded that he showed a "blatant disregard for the law
and problems that may show themselves in abusing the public or
using excessive force," thereby rendering Burns unqualified for a
position in law enforcement. The expert further testified that as
a minimum, Sheriff Moore should have investigated the disposition
of the charges against Burns. Even Appellants' expert, Ken Barnes,
agreed that Burns' criminal history should have caused some
concern, meriting a further review of the applicant. More
importantly, when Mr. Barnes was asked if he would have hired
Burns, he replied that it was "doubtful."
From the foregoing evidence, the jury could have reasonably
19
The record shows that the expert, Dr. Otto Schweizer, had
spent over twenty years in law enforcement, including, several
years as a field training officer, a police chief and as a
professor of criminal justice and police administration at the
University of Central Oklahoma.
18
inferred that Sheriff Moore "closed his eyes" to Burns' background
when hiring him. This inference is reinforced by Burns' familial
relations within the Sheriff's Department: not only is Burns the
son of Sheriff Moore's nephew, but Burns' grandfather had been
involved with the department for more than sixteen years.
Alternatively, the jury could have inferred that Sheriff Moore was
indeed aware of Burns' past problems with the law and was therefore
cognizant of his deficient character, but nevertheless opted to
employ him because he was "family".20 Again, the innuendos of
nepotism only bolster the inference that Burns would have been
hired regardless of his criminal history.
We believe that the evidence supports the jury's conclusion
that Sheriff Moore did not conduct a good faith investigation of
Burns. Although it is true that Sheriff Moore ran a NCIC check of
Burns, this action was futile given that Burns' arrest history was
all but ignored. Sheriff Moore conceded that Burns' record was so
long that he did not bother to examine it. And, except for this
feeble attempt to screen him, no other effort was made to
investigate Burns. A further examination would have revealed that
Burns had repeatedly violated probation, and that a warrant was
subsequently issued for his arrest. In light of this history, it
should have been obvious to Sheriff Moore that a further
20
In light of the string of arrests and convictions, a jury
could properly conclude that Burns had a propensity for violence
and a disregard for the law, thus, precluding his employment. We
deem such a conclusion proper, even though Burns had no felonies on
his record. Oklahoma law prevents a sheriff from hiring an
individual convicted of a felony or a crime involving moral
turpitude. OKLA. STAT. ANN. tit. 70, § 3311(d)(2) (West 1994).
19
investigation of Burns was necessary.
We also find the evidence sufficient for a jury to conclude
that Sheriff Moore's decision to hire Burns amounted to deliberate
indifference to the public's welfare. See Stokes v. Bullins, 844
F.2d 269, 275 (5th Cir. 1988); Wassum v. City of Bellaire, Texas,
861 F.2d 453, 456 (5th Cir. 1988); Benavides v. County of Wilson,
955 F.2d 968, 972 (5th Cir.), cert. denied, --- U.S. ---, 113 S.Ct.
79 (1992). In light of the law enforcement duties assigned to
deputies, the obvious need for a thorough and good faith
investigation of Burns, and the equally obvious fact that
inadequate screening of a deputy could likely result in the
violation of citizens' constitutional rights, Sheriff Moore can
reasonably be said to have acted with deliberate indifference to
the public's welfare when he hired Burns. See City of Canton v.
Harris, 489 U.S. 378, 390 (1989).21 The failure to conduct a good
faith investigation of the prospective employee amounted to Sheriff
Moore deliberately closing his eyes to the Burns' background.22
Such indifferent behavior cannot be tolerated when the prospective
21
Further, the lower court's charge to the jury was proper:
"Sheriff B.J. Moore would have acted with deliberate indifference
in adopting an otherwise constitutional hiring policy for a deputy
sheriff if the need for closer scrutiny of Stacy Burns' background
was so obvious and the inadequacy of the scrutiny given so likely
to result in violations of constitutional rights, that Sheriff B.J.
Moore can be reasonably said to have been deliberately indifferent
to the constitutional needs of the Plaintiff."
22
It is certainly true that the Sheriff had conducted adequate
background checks on other deputies and assured himself that they
were certified before putting them on the street, but the fact that
he diverged from that practice as to this one individual does not
save the County from liability. See Gonzalez v. Ysleta Indep. Sch.
Dist., 996 F.2d 745, 754 (5th Cir. 1993).
20
applicant will be employed in a position of trust and authority.
Additionally, the jury could find that hiring an unqualified
applicant and authorizing him to make forcible arrests actually
caused the injuries suffered by Mrs. Brown. That is, the
policymaker's (Sheriff Moore's) single action of hiring Burns
without an adequate review of his background directly caused the
constitutional violations of which Mrs. Brown now complains.
Benavides, 955 F.2d at 972; Fraire v. City of Arlington, 957 F.2d
1268, 1277 (5th Cir.) (section 1983 liability attaches only "where
the municipality itself causes the constitutional violation" at
issue), cert. denied, ---U.S.---, 113 S.Ct. 462 (1992). Therefore,
the violation of Mrs. Brown's constitutional rights was
affirmatively linked to Bryan County's decision to hire Burns for
law enforcement activities. Stokes v. Bullins, 844 F.2d 269, 276
(5th Cir. 1988).
CONCLUSION
After a thorough review of the record, this Court finds that
the evidence supports the jury's verdict holding Burns and Bryan
County liable for Mrs. Brown's § 1983 claim based on her false
arrest, false imprisonment and the inadequate hiring of Burns. We
also find that the district court did not plainly err in dismissing
the jury's award for Mrs. Brown's loss of past income and future
earning capacity. For these reasons, the jury's verdict stands and
the district court's judgment is
AFFIRMED.
21