Rehearing En Banc Denied August 9, 1984.
We granted rehearing en banc in this case, 711 F.2d 35, to decide whether sufficient evidence exists to support a jury verdict of municipal liability under 42 U.S.C. § 1983. The district court entered judgment against the City of Houston based on a jury finding that the City maintained a custom of using excessive police force. Because the district court excluded evidence and instructed the jury contrary to the standard this court has now adopted to govern municipal liability and our recent decision in Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.1984) (en banc), we vacate and remand for a new trial under proper evidentiary and instructional standards.
Randy Webster, a seventeen year old Shreveport, Louisiana youth, stole a van from an auto dealership in southeast Houston, Texas by driving it through a showroom window. Almost immediately, members of the Houston Police Department began pursuit. After a dangerous, lengthy, high speed chase, the van was stopped. When Randy emerged from the van unarmed, Officers Mays and Olin began to hit him and pull his hair. In the scuffle, Officer Mays' pistol discharged. The bullet struck Randy in the head and hand. Randy died as a result of these wounds. A fellow officer provided Mays with a "throw down weapon" to place next to Randy's body to make it appear that he had been armed. All police officers at the scene who later gave statements falsely declared that Randy was armed. The internal investigation of the shooting conducted by the Houston Police Department exonerated the officers, despite the statement of at least one first hand witness, a cab driver, that Randy was unarmed. Only after the youth's parents provoked a federal investigation of the incident over a year later did the true story emerge.
Randy's parents brought suit under 42 U.S.C. § 1983 seeking damages from the City of Houston, the Houston Police Department, and certain named policemen. They sought to prove that the City maintained a custom of using excessive police force that caused Randy's death. The trial judge instructed the jury that they could find the City maintained such a custom "through its highranking officials," whom he defined as "the mayor, city council, the police chief or some similarly ranked official whose acts may fairly be said to represent official policy."
The instructions in this case were prepared without knowledge of this standard and do not comply with it. Nor can the district court's instructions be squared with our recent decision in Bennett. To render a city liable actual or constructive knowledge of a "custom" must be attributable to the governing body or officials to whom that body has delegated policy-making authority.
Bennett explicated the part of the standard relating to delegation of policy making authority. A "policymaker" must be one who takes the place of the governing body in a designated area of city administration:
Bennett, 728 F.2d at 769.
The trial court's instructions are much too lax to meet our new standard. The jury should have been instructed to find whether the city council had expressly or impliedly acknowledged that the mayor or the chief of police could act in their stead to set goals and to structure and design the activities of the Houston Police Department.
The court further erred in allowing the jury to consider whether "some similarly
Even though the trial court's instructions also told the jury that if a practice by city employees was "persistent and well-settled" or "regular", it could be inferred that city policymakers had authorized or approved such conduct, the court refused to permit plaintiffs to offer proof of other claimed instances of the use of excessive force by Houston police. Under our standard this case turns on whether the City maintained a practice of allowing the use of excessive police force that was "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." If actions of city employees are to be used to prove a custom for which the municipality is liable, those actions must have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of city employees. The trier of fact must be able to charge the governing body with actual or constructive knowledge of such actions of subordinates. There was no proof of actual knowledge here. "Constructive knowledge may be attributed to the governing body on the ground that it would have known of the violations if it had properly exercised its responsibilities, as for example, where the violations were so persistent and widespread that they were the subject of prolonged public discussion or of a high degree of publicity." Bennett, 728 F.2d at 768. The judge erred in refusing to allow plaintiffs to attempt to prove other similar incidents of the use and toleration of excessive force by city policymakers in meeting the burden of showing that the custom asserted was "persistent," "widespread," "common," and "well settled."
Because of these errors, this case must be retried under the standard now established both for allowing proof of and for determining the existence of municipal custom.
VACATED AND REMANDED.
JERRE S. WILLIAMS, Circuit Judge, with whom JOHN R. BROWN, GOLDBERG, TATE and JOHNSON, Circuit Judges, join, dissenting.
In dissenting we feel it is of critical importance to spell out the full nature of this case and the law which should govern its holding.
Plaintiffs brought suit under 42 U.S.C. § 1983 with pendent state claims, individually and as representatives of their deceased son who had been shot and killed by a police officer. The suit was for damages and was brought against the City of Houston, (City), the Houston Police Department, (HPD), and certain named policemen. The only issue which is before this Court on appeal is the validity of the judgment the District Court entered against the City based on a jury finding of liability. A panel of this Court affirmed that judgment. Webster v. City of Houston, 689 F.2d 1220 (5th Cir.1982). Rehearing en banc was granted on the issue of whether there was sufficient evidence to support the finding.
I. The Episode
This case involves a shockingly heinous episode of police misconduct. Randall Allen Webster, 17 years old, stole a van from a Dodge dealership in southeast Houston, Texas, in the early morning of February 8, 1977. In a matter of minutes, Houston police officer Mays spotted the van and
Webster lay mortally wounded for some minutes where he had fallen. Other Houston police officers arrived. None of them attempted any care or first aid for the victim, who did not die until later that night while being transferred from one hospital to another. At the scene of the shooting, a plan to conceal the circumstances of the shooting was formulated. After some discussion the group of officers decided that to protect their fellow officer a weapon should be placed at Webster's side. Officer Byrd, among others, offered his "throw down" — an unregistered gun he carried in his patrol car.
Two additional police officers investigating for the Houston Police Department arrived shortly thereafter. They viewed their authority as limited to investigating the "scene." They did not interview any officer involved in the shooting nor any witnesses to it. They did not hear any comments contradicting the apparently justified incident. Initially, the story of the officers at the scene was that Webster had emerged from the van with a gun and had been shot in the struggle to subdue him. Officially, Olin and Holloway reported that Mays shot Webster as soon as the armed youth exited the van. Although several HPD patrolmen saw no gun when they arrived shortly after the shooting, not one officer came forward with that information or raised any questions when a gun was later found near Webster as he lay at the scene. An eyewitness, a taxi driver who had aided in the chase, maintained that he saw Webster emerge from the van unarmed and with his hands up. One HPD sergeant at the scene discounted his story, however. The HPD lieutenant who later investigated the matter questioned the taxi driver and eventually recommended ignoring his story. As a result of the perfunctory HPD investigation, carried out the next day, the "throw down" prevented the truth about the incident from emerging for almost a year.
John and Billie Webster, Randall's parents, were troubled by unanswered questions regarding the shooting, particularly the question of why their young son would brandish an empty gun at three armed policemen. They persuaded federal agents to investigate the shooting. The agents traced the gun found at Webster's side as having come from the HPD property room. It had been listed on the records as having been destroyed over a dozen years earlier.
Webster's parents sued under 42 U.S.C. § 1983, asserting that the actions of several HPD officers, including Mays, Olin, and Holloway, had resulted in the deprivation of the constitutional rights of their son and under the Texas law a wrongful death. The district court entered judgment based on a jury verdict awarding the parents $2548.73 in actual damages for medical and funeral expenses and $200,000 in punitive damages from the City. The City appealed,
II. The Deprivations of Federal Rights
The initial inquiry in any § 1983 suit is whether the plaintiff has been deprived of, in the terms of the statute, a right "secured by the Constitution and laws."
Following the lead of the Supreme Court, this Court has recognized that the "right of access to the courts is basic to our system of government, and it is well established today that it is one of the fundamental rights protected by the Constitution."
One obvious purpose of a throw down weapon is to conceal from the victim or his legal representatives the fact that the use of deadly force was unwarranted.
The placing or "throwing down" of a gun or knife next to a decedent cuts off those claims that a decedent and his survivors have for redress of the injuries inflicted upon them. A fully "successful" throw down weapon episode is a flagrant concealment of the truth that the shooting was actually needless and wrong. Even if the truth is eventually exposed, the victims' chances of recovering are prejudiced from the delay. The albeit temporary taking causes "stale evidence and the fading of material facts in the minds of potential witnesses" and probably greater expense in litigating the claim.
The victim of a wrongful shooting by a police officer also has a claim under 42 U.S.C. § 1983 for redress of substantive constitutional violations such as the use of excessive force during an arrest, the infliction of cruel and unusual punishment upon one in custody, or the taking of life without due process of law. See 18 U.S.C. § 242; United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). A police cover-up by the use of a throw down weapon thwarts any § 1983 claim for redress and thus deprives the victim, already stripped of substantive constitutional rights, of his statutory right under § 1983 to be made whole.
In sum, both Webster and his parents were deprived of rights secured by the Constitution or laws of the United States. Webster's constitutional right to be free from the use of excessive force during his arrest was violated when he was shot and killed by officer Mays. Further, by improperly arranging for it to appear that Webster had been armed, the police officers interfered with his pre-existing right to due process of law in the courts. Similarly, his parents' substantive rights of access to the courts and property rights under Texas wrongful death law were transgressed. Finally, the actions of the officers deprived Webster of constitutional due process and his federal statutory right to seek redress under § 1983 which arose when his substantive constitutional and statutory rights were violated under color of state law. If these deprivations can be found to be pursuant to a policy or custom of the City, the City is also liable.
III. Municipal Liability Under Section 1983
In its Suggestion for Rehearing En Banc, the City urged that this case presents an appropriate occasion for this Court to clarify certain aspects of § 1983 municipal liability in the Fifth Circuit. The City argued that the panel so misunderstood the standards for such liability that it incorrectly found sufficient evidence to support the jury's verdict against the City. This assertion is not supported by the record.
The broad sweep of the statutory provision itself should first be emphasized:
When enacted almost 113 years ago, § 1983 was the first of four sections comprising the Civil Rights Act of 1871.
For ninety years the import of what is now § 1983 was largely nullified by an initial restrictive judicial interpretation of the Fourteenth Amendment itself, which focused upon the "privileges and immunities" of U.S. citizens, finding them to be almost non-existent, and also upon "state action" limitations.
The Court would not recognize a similar claim against the City of Chicago, however, under its reading of the legislative history of the Ku Klux Klan Act. It was unwilling to recognize a municipality as a "person" under the statute. It emphasized particularly the early rejection of the proposed amendment by Senator Sherman which would have imposed municipal liability for private deprivations of civil rights. Id. at 187-92, 81 S.Ct. at 484-86.
Seventeen years after Monroe the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), reevaluated its prior restrictive interpretation of § 1983 excluding municipalities from liability. In Monell, female employees of both the Department of Social Services and the Board of Education of the City of New York sued under § 1983 alleging that the Department and Board had as a matter of official policy unconstitutionally compelled pregnant employees to take unpaid leaves of absence before such leaves were medically justifiable. Although constitutional injury was presumed, plaintiffs were denied relief in the lower courts based on Monroe.
The Court, however, did not leave the § 1983 exposure of local governments unlimited, and the boundaries set by this holding raise the critical issue in this case. The Court announced that a city would not be liable under § 1983 for acts of its employees merely because it employed wrongdoers. There was to be no respondeat superior liability. Id. at 691, 98 S.Ct. at 2036. Although generally unpopular with legal commentators
Of the utmost importance to the case before us is the distinct category of coverage of municipalities which the court based upon "custom," as opposed to specific enacted law.
In Monell the Court quoted two prior decisions it found relevant in defining governmental custom. The first of these was Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), a case of significant relevance to the issue before us. Adickes concerned the refusal of Kress, a private department store, to serve a racially integrated group of customers in its restaurant. The issue was whether such otherwise private conduct amounted to "state action" under § 1983. The Court reversed a directed verdict in favor of defendant Kress, declaring that a custom of state officials (i.e., of tolerating private violence or threats of violence directed towards those persons who would not conform to the practice of segregating the races at restaurants or of harassing and punishing those persons through false arrests for vagrancy) has the coercive force of law for private deprivations to be "under color of law ... or custom." "Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a `custom or usage' with the force of law." Id. at 167-68, 90 S.Ct. at 1613-14.
The other case was Nashville, Chattanooga & St. Louis Railway v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254 (1940). In that case the Court held that taxing railroad and public utility property at a higher rate than other property was not discriminatory, although not expressly authorized by state law. There was no question that the Legislature could tax different classes of property at different rates. The disparate taxation was found to be so uniformly followed as to constitute a virtual amendment to the statute. Justice Frankfurter, for the Court, stated that "[s]ettled state practice ... can establish what is state law.... Deeply embedded traditional ways of carrying out state policy ... are often tougher and truer law than the dead words of the written text." Id. at 369, 60 S.Ct. at 972.
It should be emphasized, however, that "governmental" custom is not found only in practices so locally compelling as to have
The Supreme Court recognized it was presenting only the faintest pencil sketch of the "full contours of municipal liability under § 1983" in Monell. It expressly deferred "further development of this action to another day." Id. at 695, 98 S.Ct. at 2038. The Supreme Court's "other day" has yet to arrive.
This Court has only begun to flesh out the skeletal contours left by Monell. We have taken a relatively restrained view of the breadth of both official policy and governmental custom. Of course, we have held a city not to be liable under § 1983 where there is no evidence that the deprivations occurred as a result of the city's policy or custom.
In Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir.1983), we held a city not liable for the negligence or gross negligence of its police chief and other subordinate city officials in failing to train the particular officer who caused the alleged injury. There was no evidence of "at least a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent police misconduct or that serious incompetence or misbehavior was general or widespread throughout the police force."
Our previous decisions, however, add only a gentle wash to the Supreme Court's preliminary sketch of the developing portrait of § 1983 municipal liability. A brief look at some of the shades other courts have said they have seen in Monell is helpful.
Several courts have held that the persistent failure of senior policymaking officials to take affirmative corrective or other supervisory actions can lead to the inference of an implicit official policy on the part of the local government.
From the varied principles announced in the preceding Supreme and Circuit Court holdings and other legal commentary, we draw only those conclusions necessary to establish our view in dissent in this case. Governmental custom, the concern here, is evinced through persistent and widespread practices of ordinary municipal employees. The rank and file policemen are involved. But so is the entire HPD and its top officers. The record shows that every top police officer from the chief on down came up through the ranks from patrolman. As we evaluate the jury verdict based upon the record in this case, all members of the department were well aware of the throw down custom.
Further, the establishment of policies of the City of Houston regarding police work was delegated to the Chief of Police and the HPD by the mayor and city council. Mayor Hofheinz testified:
Relating to the Mayor's testimony are several statements in our en banc opinion in Bennett v. City of Slidell, supra, 728 F.2d at 769. We said:
In Bennett we also said that the governing body may:
Affirmance on the merits in this case, therefore, could well be justified on the sole ground that the Chief of Police was the policymaker by delegation because of the size and complexity of the government of Houston, as Mayor Hofheinz described.
We in dissent do not, however, rest the decision solely on the ground that the Chief of Police was the policymaker. We insist that the court correctly charged the jury that the evidence had to establish "that there existed a regular pattern of such conduct so that it may be inferred that the City of Houston, through its high ranking officials, implicitly authorized or approved such conduct ... `[H]igh ranking officials' means the mayor, city council, the police chief or some similarly ranked official whose acts may fairly be said to represent official policy." This instruction reflects the law accurately and is in full accord with our decision in Bennett.
As the per curiam opinion for the Court points out, the Court has now unanimously agreed upon a formulation to govern the imposition of municipal liability. It provides:
Further, the majority per curiam opinion sets out at greater length the critical instruction to the jury which was given in this case.
A careful reading of our recently adopted formulation with the entire instruction to the jury reveals a remarkable compliance at that earlier time with the law as we now state it. As developed in this opinion in the next part, we do have here "a persistent, widespread practice of city officials or employees" which is so common
The instruction to the jury was carefully crafted to require the jury to find by a preponderance of the evidence that the city through its highranking officials maintained a custom of depriving citizens of their rights through the use of unreasonable, unnecessary, or excessive force by the police department. Further, the charge went on to tell the jury that while the custom need not be formally approved by government officials, the custom must be so persistent and well settled that it is reasonable to infer that it represents official policy.
As a further caution and limitation the jury was instructed that the plaintiffs had to establish by the evidence that there existed a "regular pattern of such conduct" so that it could be inferred that the City of Houston through its highranking officials implicitly authorized or approved such conduct. Then it defined the highranking officials as the mayor, the city council, and the police chief or similar officials.
The charge then properly went on to instruct that the governmental body may be held liable for a "pervasive pattern" of abuses if the city's "inaction or ineptitude in supervising those employees" is so great that it evidenced deliberate and conscious indifference to a substantial possibility that constitutional violations would result. This requirement was met in this record. And it can be concluded from it that the jury found that the City acquiesced or implicitly authorized the violations.
The per curiam opinion for the Court says that this jury instruction did not meet the requirements of our recently approved policy formulation. We do not agree. An evaluation of the instruction as it relates to the responsibility for custom by a city as set out in that formulation clearly complies. It is well established that instructions must be taken as a whole and must not be upset if they charged the jury fairly and effectively on the theory of the case.
The jury instructions in this case fall well within our requirements: "In reviewing a district court's instructions to the jury, we consider the charge as a whole, in view of the allegations of the complaint, the evidence presented and the arguments of counsel to determine whether the jury was misled and whether it understood the issues presented." Coughlin v. Capitol Cement Co., 571 F.2d 290, 300 (5th Cir.1978). "The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues." Houston v. Herring, 562 F.2d 347, 348 (5th Cir.1977). In Associated Radio Service Co. v. Page Airways, Inc., 624 F.2d 1342, 1358 (5th Cir.1980), cert. denied, 450 U.S. 1030, 101 S.Ct. 1740, 68 L.Ed.2d 226 (1981), the Court said: "We are convinced from a careful reading of the entire charge that it was, in substance, correct." A thorough reading of the record and the full thrust of the jury charge shows that this charge was well within the requirements set out above.
In accordance with the original theme and purpose of the Ku Klux Klan Act, a governmental entity will be held accountable for deprivations brought about by its employees who follow a practice within the governmental department which is so common and established among a significant number of the employees in that department as to be a practice widely known and followed with relative impunity. At that point, the frequency and pattern of the practice is sufficient to support a reasonable inference that the city, through its top officials, is aware or has the responsibility to be aware that city employees engage in the practice. Such a practice is a governmental custom and is as much a part of that government as are the positive laws and actions of its policymakers. The municipality is liable because its policymaking officials — those who in their sphere of policymaking authority speak and act as the city — should know about the existence of a practice so prevalent as to be custom, and yet condone or deliberately ignore the practice
The spirit and the reality of Monell make municipalities and their public officials liable for unconstitutional policies they enforce or customs they condone. 98 S.Ct. at 2041. The highest public officials of the city must not be able to escape liability by the subjective claim that they did not know of the persistent or permeating violations. Otherwise, the more the public officials abdicate responsibilities the freer they will be from liability. Eyes, ears, and mind totally closed to evil would insure against ever being held liable under Section 1983. This would be a perverse result. The jury found on adequate evidence and pursuant to proper jury instruction that the top officials of the city were involved in the persistence of the custom. That is enough.
We stress the importance of the fact that this is a case involving a custom of carrying and using throw down weapons that directly leads to the use of excessive force in arrests by covering up the use of excessive force, and the further cover up of the fact that a throw down weapon has been used. As is shown in the following part of the opinion, the existence of both of these aspects of the custom were convincingly demonstrated by the evidence in this case. Our recent en banc decision in Bennett v. City of Slidell, supra, is readily distinguishable. That case involved an isolated instance of actions taken against a citizen of the city for personal reasons by high ranking but nonpolicymaking public officials. We held in that case that no city policy was established under those facts. Bennett recognized, as we have earlier pointed out, that custom is a separate justification for holding a city and its officials responsible under Section 1983. Bennett raises the issue of the existence of an authoritative governmental policy. In contrast, this is a case which involves custom rather than policy. In Bennett, on its facts, a policy was found not to exist. In this case, on its facts, a custom was found to exist under a careful and fully adequate jury charge. The Bennett holding falls far short of controlling this case.
Finally, we stress the sub rosa nature of any custom which if widely known would be recognized by everyone but the self-served insiders as manifestly and overwhelmingly wrong. In such circumstances custom must properly be provable by evidence that a limited number of municipal employees follow the practice, or from evidence of fewer examples of such a practice. The usual high levels of persistency and pervasiveness cannot be required in these atypical cases because the risk of serious injury to the public is so great and because municipal employees would be expected to conclude, on fewer instances of such a practice or sooner after its inception, that reasonably diligent city policymakers must know about the practice and are willing to disregard it.
IV. The Custom
A careful and full reading of the trial transcript discloses ample evidence supporting the jury's finding that a policy or custom of the City caused deprivations of Webster's and his parents' federal constitutional and statutory rights. Of course, there is testimony from top police officials
The jury had a right to believe the evidence set out before while in the process of disbelieving conflicting testimony. The jury was entitled to discredit the above self-serving testimony and believe the strong evidence to the contrary.
The carrying of throw down weapons was an established custom among HPD police officers. The practice was widely acknowledged and frequently discussed. Former police lieutenant Dillon, one of the supervisory HPD officers at the scene of the shooting, testified that every officer on the force in 1977 — "in my opinion ... one hundred percent" — understood the term "throw down." Former officer Holloway testified:
Holloway's partner, former officer Olin, agreed that they had discussed whether to carry and when to use a throw down weapon and that such weapons were "necessary evils." Former officer Estes agreed that he had learned about throw down weapons through shop talk and that they were the subject of common discussion in the force. In fact, former officer Byrd stated that "as far as the superiors, they don't directly condone it. They know it happens." This is borne out by Dillon's testimony that he had heard discussions of the use or potential use of throw down weapons among fellow officers.
It was brought out that as early as 1964 HPD instructors at the police academy, where new recruits are taught how to be officers of the law, had "casually mentioned" that an officer who happened to shoot an unarmed suspect "best have something to lay down" to protect himself.
This evidence could properly have shouted "coverup" to the jury. Taken with other evidence it can show a custom or practice of the use of throw downs and a cover up. Only the persistence of the victim's parents and the intervention of federal authorities in this case exposed the outrageous events.
Finally, there was direct testimony that thrown down weapons were readily accessible and sometimes used. Olin agreed that in 1977 it was common knowledge that throw downs were available to police officers who might need one. Byrd concurred. Byrd further related that it was then "common knowledge" that at that time 75-80% of the officers on the force carried or had access to some form of "throw down," and that "most of the officers either carried a knife or a gun [as a throw down weapon]."
From this testimony concerning the discussions of throw down weapons, their availability and use, and the casual mention of them at the police academy, the jury could properly find that there was a custom among HPD police of carrying throw down weapons. This case is a perfect example of a sub rosa practice (carrying and using throw down weapons) among city employees (police officers) which is so pervasive and persistent that it can be characterized as city custom despite broadly worded pronouncements to the contrary. The directives of the HPD were simply inadequate to ensure that the practice would not continue. In short, the customary practice here was city policy, no matter what general rules the HPD or City may have adopted or what opinions individual officers may have voiced.
Having found on the basis of adequate proof the existence of a custom condoned or deliberately ignored in practice by the city officials and the HPD, the jury also could properly conclude that this custom led to the deprivation of the federal rights of Webster and his parents. A custom among City patrolmen of carrying throw down weapons can clearly cause the use of such a weapon in certain circumstances, and the jury could reasonably find that it did here. Moreover, the jury could find that this same custom led to the use of excessive force in arresting Webster. Under exigent or heated circumstances, the knowledge that throw down weapons are readily and deliberately available to conceal wrongful conduct would be sufficient to ease a police officer's concern about the use of excessive force.
Thus there was more than substantial evidence to support the jury verdict that Webster and his parents were deprived of their federal rights under color of state law, and that such deprivations were caused by a persistent and widespread practice among certain employees of the City which amounted to governmental custom. Diligent City policymakers knew or should have known of such a widespread even though covert custom among city employees. The operation of the HPD was their responsibility. This custom could not have existed without City policymakers condoning it, deliberately ignoring it, or closing their eyes to its possible existence. Through such action or omission, the City itself was at fault, as well as were wrongdoing officers, for the constitutional and statutory deprivations. The City, consequently, properly was held liable under § 1983.
We in dissent realize that police officers face danger each day in the course of their vital, too often unappreciated work. In no way should this Court seek to limit the reasonable and precautionary protections a police department and city can lawfully institute for its patrolmen. But society must require cities and their police departments to be aware of illegal police practices which, even in the face of contrary written city policy, become so accepted as to be internally customary. It need not be emphasized that the carrying and use of throw down weapons is a particularly shameful and egregious example of such a practice. We should disapprove as strongly as possible of police departments and acquiescent city governments allowing such a practice to flourish.
This is the case the Websters proved. As a matter of post hoc rationalization this Court is demanding that after seven and one-half years, this bereaved and sorely mistreated family must retry and establish their case all over again.
If the American system of justice and judicial process demands that the jury verdict be taken away from these plaintiffs on this record, a serious weakness in our system is exposed. We in dissent do not concede such a weakness. This case was fairly and properly tried. As this opinion points out, the jury was well instructed on the responsibility of public officials including the police chief and the city council.
Under the facts well established in the evidence in this case and under the charge to the jury, the Court could properly find liability on the part of the City through the police chief because responsibility had been delegated to the police chief from the city council. The jury properly could also find responsibility on the part of the City through the city council's failure adequately to discharge its obligations to ensure that excessive force against citizens not be used by the police.
The most damaging aspect of the analysis relied upon by the Court is an encouragement to the top public officials of a municipality to close their eyes and ears to what is going on in city government — to see no evil and hear no evil. The holding of the majority of the Court when analyzed to its full conclusion encourages the top policymakers of a city to do nothing, to exercise no responsibilities. If they do nothing and pay no attention to what is being done, the Court is holding, in effect, that they and the city cannot be held responsible for civil rights violations. This cannot be the law. Abdication cannot relieve of responsibility.
This case is properly returned to the lower court for a retrial of the damage issue.
ALVIN B. RUBIN, Circuit Judge, with whom JOHN R. BROWN and TATE, Circuit Judges, join, dissenting:
The Bennett standard requires that, for a municipality to be charged with liability for actions taken pursuant to a custom, "actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority." (Emphasis supplied) Lacking prescience and hence being unable to foresee that this court would, only on application for rehearing in Bennett, some three years after this case was tried, preclude municipal liability based on a custom known to officials whose policy-making authority is not delegated but inherent in their high rank, the district court charged the jury, "In this connection, `high-ranking officials' means the Mayor, City Council, the Police Chief or some similarly ranked official whose acts may fairly be said to represent official policy." He, therefore, did not require that the jury find that the "high-ranking official" be "an official to whom [the governing body of the municipality] had delegated policy-making authority."
The lack of such an instruction, however, was not the objection actually made to the charge. The objection was simply that the instruction as a whole would permit the jury to impose respondeat superior liability. Every one of my colleagues, whether in majority or dissent, agrees that § 1983
Considering the charge as a whole, as my brother Williams correctly says we must and should, I would affirm the judgment. I do not fault defense counsel for failing to predict Bennett, but neither would I reverse the district court for lacking such foresightedness or for failing to do what no one asked him to do. In short, if there be error in the clear light of hindsight, it was not plain.
I, therefore, join my brother Williams in dissent.
Other decisions have held that actions taken against a person's body after death even though designed to conceal the circumstances surrounding the death do not give rise to constitutional claims on behalf of the deceased. These are cases such as Silkwood v. Kerr-McGee, 637 F.2d 743 (10th Cir.1980), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981) and Guyton v. Phillips, 606 F.2d 248 (9th Cir.1979), cert. denied, 445 U.S. 916, 100 S.Ct. 1276, 63 L.Ed.2d 600 (1980). In both of those cases, however, the actions taken clearly were organized and carried out after the death and were not a continuum of the circumstances of the death itself.
The Whitehurst case is factually distinguishable from Webster's situation because Whitehurst was clearly deceased at the time the throw down gun was placed alongside the body. In contrast, it is clear that Webster was still alive at the time the throw down gun was put in place. We, in dissent, do not rely upon this distinction, however, because it would make constitutional and statutory rights in such a case depend upon the moment of death.
The critical difference between the situation here involved and the Whitehurst case is found in the fact that the use of the throw down gun is shown to be not an isolated instance, but a course of conduct or custom which was used, sub rosa, in the HPD to conceal other civil rights violations such as the use of excessive force in making arrests. Whitehurst was a case in which a claim was based upon one isolated incident. In the principal case, as the evidence shows, the use of the throw down gun was part of a continuum of the use of excessive force and the concealment was part of a custom of the police department. Insofar as the Whitehurst case might be viewed as going beyond the narrow facts of an isolated incident where the only claim of the constitutional violation is the use of a throw down gun after the death of the victim, it is not the law.
Here, Webster was deprived before and at his death of constitutional and statutory rights involving freedom from the use of excessive force and access to the courts to vindicate constitutional rights. This decedent, through his estate pursuant to Texas law, is entitled to sue under § 1983 for the delay to and interference with his cause of action for those violations so long as the deprivations arose from a person acting under color of state law.
Monell itself "unquestionably" involved such official policy, id. at 694-95, 98 S.Ct. at 2038, since the plaintiffs were challenging the "rules and regulations" of the defendant city agencies. See Monell v. Department of Social Services, 532 F.2d 259, 260 (2d Cir.1976); Monell v. Department of Social Services, 394 F.Supp. 853, 854 (S.D.N.Y.1975).
See also Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981).
From this it is clear that a customary practice among municipal employees may be proved despite the existence of formal written city policy forbidding that practice or the particular constitutional violations which flow from it. Monell itself allows § 1983 liability for governmental custom which causes injury to federal rights "even though such a custom has not received formal approval through the body's official decisionmaking channels." 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).
Plaintiffs do argue that since the HPD Chief of Police had risen through the ranks from the police academy to patrolman to chief, and that since all other senior supervisory HPD officers had done likewise, they were aware of throw down weapons in the department, see infra, note 50, and that their failure to prohibit specifically the carrying of throw down weapons or institute procedures to curb their availability would per se make the City liable here.
We should be concerned about so delimiting proof of § 1983 causes of action essentially premised on police department or city custom as to prevent proof of a persistent pattern of similar misconduct from which such custom can be inferred. In our view, the District Court unduly restricted relevant evidence during the pretrial conference when it stated it did not "want to try all of those Benoit, Joyvies, Torres cases again in this Court." Testimony at trial indicated that the "Joyvies" case involved the use of a throw down gun, so it would clearly have been relevant. However, the record shows the fact that the Joyvies incident did take place was put before the jury by testimony.
Byrd stated that "throw downs" were "just something that is just more or less mentioned but not ever directly discussed [at the police academy]."
Further, the HPD apparently had ineffective procedures for keeping track of individual officers' guns. Byrd stated that he
Dillon admitted that just knowing that throw down weapons are available when needed, even if it is just in the back of one's mind, could prompt one to use too much force.