28 F.3d 802 (8th Cir. 1994), 93-1204, Tilson v. Forrest City Police Dept.

Docket Nº:93-1204, 93-1324.
Citation:28 F.3d 802
Party Name:Jessie TILSON, Appellee, v. FORREST CITY POLICE DEPARTMENT; Joe Goff, Chief, Appellants. Jessie TILSON, Appellant, v. FORREST CITY POLICE DEPARTMENT; Joe Goff, Chief; Bill Dooley, Sgt., Individually and in his official capacity; Dewey Ramsey, Officer, Individually and in his official capacity; Dave Parkman, Sheriff, Individually and in his official
Case Date:July 05, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 802

28 F.3d 802 (8th Cir. 1994)

Jessie TILSON, Appellee,



Jessie TILSON, Appellant,



Dooley, Sgt., Individually and in his official capacity;

Dewey Ramsey, Officer, Individually and in his official

capacity; Dave Parkman, Sheriff, Individually and in his

official capacity, Appellees.

Nos. 93-1204, 93-1324.

United States Court of Appeals, Eighth Circuit

July 5, 1994

Submitted Sept. 16, 1993.

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[Copyrighted Material Omitted]

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Fletcher Long of Forrest City, AR, argued (Gary J. Mitchusson, on the brief), for appellant.

Alvin Lenoard Simes of West Helena, AR, argued, for appellee.

Before MAGILL, Circuit Judge, LAY, Senior Circuit Judge, and HANSEN, Circuit Judge.

MAGILL, Circuit Judge.

The Forrest City Police Department (the Department) and Chief of Police Joe Goff (Goff) appeal the district court's denial of their posttrial motions for judgment as a matter of law 1 and for a new trial. In this 42 U.S.C. Sec. 1983 action, the jury found the Department and Goff to have violated the constitutional rights of Jessie Tilson (Tilson). We find that as a matter of law this verdict lacked a "legally sufficient basis for a reasonable jury to have found for [Tilson]." See Fed.R.Civ.P. 50(a). Hence, we reverse, finding that the district court erred when it denied the motion for judgment as a matter of law.


The facts underlying Tilson's claim are disturbing. Tilson was arrested on April 4, 1989, by two Forrest City police officers, Bill Dooley and Dewey Ramsey, and taken to the

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St. Francis County jail. 2 Dooley and Ramsey testified at the trial that they arrested Tilson as a Missouri parole violator, 3 while investigating Tilson in association with a recent murder.

On April 17, 1989, while still in the jail, Tilson was arrested for murder on a warrant issued by an Arkansas Circuit Judge. Bond was set on the warrant at $50,000. Such a warrant can be issued upon a finding by the judicial officer that there is reasonable cause to believe an offense has been committed and that the person to be arrested committed it. Ark.R.Crim.P. 7.1(b). On April 19, 1989, Tilson appeared before a municipal court judge who bound him over to the circuit court. The record is unclear as to whether at that time Tilson received a probable cause hearing pursuant to Arkansas Rule of Criminal Procedure 8.3. 4 The county prosecutor, aware that Tilson was incarcerated, never attempted to indict Tilson, file an information, or take steps to release Tilson.

Tilson remained in the St. Francis County jail for the next fourteen months, next appearing in court on June 11, 1990. 5 On that day, pursuant to a newly filed petition for habeas corpus, Tilson was released, never charged with any crime.

This 42 U.S.C. Sec. 1983 action was brought by Tilson claiming that Officers Dooley and Ramsey violated Tilson's constitutional rights through the following acts: arresting him without probable cause, 6 questioning him without an attorney, and failing to conduct properly the criminal investigation. Liability for Goff and the Department was premised on their failure to act to prevent Tilson's continued unlawful incarceration. The suit originally included the St. Francis County Sheriff's Department and the St. Francis County Sheriff; however, these parties were dismissed pursuant to a grant of summary judgment.

The jury found that neither Dooley nor Ramsey had violated Tilson's constitutional rights. 7 It did, however, return a verdict

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against both the Department and Goff (collectively, the defendants). The defendants filed motions for judgment as a matter of law and for a new trial. The district court denied both motions, and the defendants timely appealed. 8


An appellate court reviews a district court's denial of a posttrial motion for judgment as a matter of law under the same standard utilized by the district court. Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990). The appeals court must consider the evidence in the light most favorable to the prevailing party and "affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it." Id. Bearing in mind the deference accorded by this standard to a jury verdict, we still must reverse because assuming all the evidence was believed by the jury, the evidence was nonetheless insufficient to have found the defendants liable under Sec. 1983.

For the jury to have found the Department or Goff liable in this Sec. 1983 action, it must have had before it evidence of their direct participation in a constitutional deprivation. Cf. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (respondeat superior cannot form the basis for liability under Sec. 1983). Simply put, the evidence before this jury must have allowed it to identify (1) action on the part of Goff or the Department causing (2) one or more constitutional violations.

  1. Liability under Section 1983

    1. Goff's Liability

      A supervisor, such as Goff, may be held liable under Sec. 1983 if he directly participated in the constitutional violation, see Webster v. Gibson, 913 F.2d 510, 514 (8th Cir.1990), 9 or if his failure to train or supervise the offending actor caused the deprivation, 10

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      see City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204-05, 103 L.Ed.2d 412 (1989) (alleging failure to train); Bolin v. Black, 875 F.2d 1343, 1347 (8th Cir.) (alleging failure to supervise), cert. denied, 493 U.S. 993, 110 S.Ct. 542, 107 L.Ed.2d 539 (1989). The standard of liability for a failure to train police officers is deliberate indifference. City of Canton, 489 U.S. at 388, 109 S.Ct. at 1204-05. The standard of liability for failure to supervise is "demonstrated deliberate indifference or tacit authorization of the offensive acts." Bolin, 875 F.2d at 1347.

    2. The Department's Liability

      For the Department to be liable under Sec. 1983 for a constitutional violation, a claimant must show that

      the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the Department] or that a constitutional deprivation [was] visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels.

      Marchant v. City of Little Rock, 741 F.2d 201, 204 (8th Cir.1984) (quoting Monell, 436 U.S. at 690, 98 S.Ct. at 2035-36) (internal quotations omitted).

      The inaction or laxness alleged by Tilson, lack of written procedures, 11 was not "officially adopted or promulgated." However, inaction or laxness can constitute government custom if it is permanent and well settled. See Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Such a government custom of laxness or inaction must be the moving force behind the constitutional violation. Id. at 694, 98 S.Ct. at 2037-38.

  2. Constitutional Violations

    Tilson's complaint alleges the following constitutional violations: (1) arrest without probable cause, (2) unlawful incarceration for fourteen months, and (3) questioning him without an attorney and a valid waiver of his rights. 12 We consider Tilson's allegations in turn.

    1. Arrest without Probable Cause

      Tilson's primary allegation at trial was that both the April 4 and the April 17 arrest were unsupported by probable cause. Although the jury found that neither Dooley nor Ramsey violated Tilson's constitutional rights, we nevertheless will consider these allegations. 13 To establish the liability of Goff or the Department for an unlawful arrest, Tilson must have offered evidence to the jury allowing it to infer that Goff knowingly and directly participated in an arrest without probable cause, or that Goff's failure to train or supervise his subordinates or a

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      custom of the Department caused the unlawful arrest. See Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38.

      An examination of the record offers no such evidence. Tilson merely established that Goff knew of Tilson's arrests and incarceration. Tilson offered no evidence which would have allowed the jury to have inferred that Goff's or the Department's actions caused an arrest without probable cause. Had Tilson shown that Goff was "deliberately indifferent" to the use by Dooley or Ramsey of illegal methods of obtaining an arrest warrant, this would have been sufficient evidence to sustain the jury verdict against Goff. However, here, all we have is Goff's knowledge that Tilson had been arrested and a lack of written procedures. This evidence is as a matter of law insufficient to impose liability under Sec. 1983.

    2. Deprivation of Liberty

      Two inquiries control liability for Tilson's deprivation of liberty: Was Tilson unconstitutionally deprived of his right to liberty; 14 and, if so, were either Goff or the Department responsible for causing the deprivation?

      We decline to reach the first question, see Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985) ("Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.") (internal quotes and citations omitted), because there was no evidence before this jury that any policy or custom of the Department or any direct action, failure to supervise, or failure to train on the part of Goff caused or was the moving force behind Tilson's deprivation of liberty. See Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. To the contrary, the only relevant evidence before this jury was that Goff knew...

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