Pineda v. City of Houston, 01-20189.

• Citation: 291 F.3d 325
• Decision Date: 09 May 2002
• Docket Number: No. 01-20189.,01-20189.
• Parties: Claudia Navarro PINEDA, Etc.; et al., Plaintiffs, Claudia Navarro Pineda, Individually, Representative of the Estate of Pedro Oregon Navarro; Ana Isabel Lores as next friend of Ashley, minor daughter of Pedro Oregon Navarro; Blanca Lidia Viera, as Next friend of Belinda, minor Daughter of Pedro Oregon Navarro; Susana Oregon Navarro, Plaintiffs-Appellants, v. CITY OF HOUSTON; et al., Defendants, City of Houston, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

291 F.3d 325

Claudia Navarro PINEDA, Etc.; et al., Plaintiffs, Claudia Navarro Pineda, Individually, Representative of the Estate of Pedro Oregon Navarro; Ana Isabel Lores as next friend of Ashley, minor daughter of Pedro Oregon Navarro; Blanca Lidia Viera, as Next friend of Belinda, minor Daughter of Pedro Oregon Navarro; Susana Oregon Navarro, Plaintiffs-Appellants, v. CITY OF HOUSTON; et al., Defendants, City of Houston, Defendant-Appellee.

No. 01-20189.

United States Court of Appeals, Fifth Circuit.

May 9, 2002.

COPYRIGHT MATERIAL OMITTED

Russell Stanley Post (argued), Richard Phillips Hogan, Jr., Roger Dale Townsen, Jennifer Bruch Hogan, Hogan, Dubose & Townsend, Richard Warren Mithoff, Mithoff & Jacks, Houston, TX, for Plaintiffs-Appellants.

Robert L. Cambrice, Andrea Chan, Asst. City Atty. (argued), The City of Houston Legal Dept., Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and GARWOOD and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Houston police officers shot and killed Pedro Oregon Navarro following an unconstitutional warrantless entry into his residence. Members of his family filed this suit asserting a § 1983 claim against the City of Houston, as well as supplemental state claims. The district court granted summary judgment to the City on the § 1983 claim and dismissed the supplemental claims with prejudice. This appeal followed. We affirm the grant of summary judgment as to the § 1983 claim and modify the order dismissing the state claims to provide that those claims are dismissed without prejudice.

I

On July 11, 1998, Houston police officers and members of the Southwest Gang Task Force Pete Herrada and J.R. Willis were patrolling in southwest Houston when they stopped a car for a traffic violation.¹ This stop led to the arrest of the driver, Ryan Baxter, who volunteered to give information about his drug supplier, a person called Rogelio, in exchange for lenient treatment. The two officers contacted the other members of the SWGTF. Sergeant Darrell Strouse and officers David Perkins, Lamont Tillery, and David Barrera, also members of the task force, joined Herrada and Willis. Together they devised a plan for expanding the catch.

By the initial plan Baxter was to meet Rogelio at a local fast-food establishment, setting up a search of his car. It didn't work—Rogelio did not appear. Baxter paged Rogelio again, this time confirming that Rogelio would be at his apartment and would make the sale there. The officers went to the apartment, but no one was home. After waiting until 1:30 a.m. on July 12, the officers returned to the apartment and, without obtaining a search warrant, had Baxter knock on the door. When the door opened, Baxter dropped to the ground and the GTF officers, waiting at the foot of the stairs, rushed into the apartment. There were several people in the apartment, and in the commotion one of the officers apparently shot another in the back, followed by a fusillade from the officers killing Pedro Oregon Navarro. A pistol found near Oregon's body was identified as belonging to Oregon.²

II

We review the district court's grant of summary judgement de novo.³

A

First, the rote. Section 1983 offers no respondeat superior liability. Municipalities face § 1983 liability "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury...."⁴ Proof of municipal liability sufficient to satisfy Monell requires: (1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose "moving force" is that policy (or custom).⁵

Early cases following Monell dealt with official policies or acts by a governing body fairly attributable as the acts of the local government itself.⁶ In those cases, "there was no question but that the objectionable conduct was city policy."⁷ Treating claimed municipal liability in the absence of a "smoking gun" we marked two paths of proof:

1. A policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or

2. 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. 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. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.⁸

The plaintiffs here claim two theories of liability: (1) an unwritten municipal custom of warrantless searches of residences in violation of the Fourth Amendment; and (2) inadequate training.

B

Turning to the claim that the SWGTF engaged in a pattern of unconstitutional searches pursuant to a custom of the City, we note first that one act is not itself a custom.⁹ There must be a "persistent and widespread practice."¹⁰

The effort to create a triable fact issue regarding custom was creative and took the following form. From 5,000 offense reports produced by the City in discovery, counsel selected approximately 500 involving narcotics. These were the predicate for opinion evidence on custom by their expert witnesses. While the opinions offered referred to a greater number of incidents, the district court considered only those accompanied by offense reports in the summary judgment record. The district court relied upon 11 of the reports of a warrantless entry into residences by the SWGTF.¹¹ The plaintiffs urged that this evidence met their summary judgment burden.

The district court was persuaded that these 11 (of 13) incidents for which there were offense reports in the summary judgment record were competent summary judgment evidence of a pattern of unconstitutional searches — enough to defeat summary judgment for want of proof of custom.¹² We are not persuaded that this proof creates a fact issue on the issue of a pattern of conduct.

Eleven incidents each ultimately offering equivocal evidence of compliance with the Fourth Amendment cannot support a pattern of illegality in one of the Nation's largest cities and police forces. The extrapolation fails both because the inference of illegality is truly uncompelling — giving presumptive weight as it does to the absence of a warrant — and because the sample of alleged unconstitutional events is just too small. Opinion evidence resting heavily on this data added little if anything. Left without legs, the opinions were little more than suspicion, albeit by informed persons. The weakness in the approach is apparent in its practical effects. It requires the City to defend "cases within cases" from historical records to justify searches conduced without a warrant. The burdens of proof on a contested warrantless entry of a home have little to do with the use here of the City's records. The district court was wisely wary. Although the district court went further than we think the record warrants its decision on this point was a nigh arguendo ruling; allowing it to move to an even weaker link in the proof.

Even if this proof was, contrary to our view, sufficient to create a disputed issue of fact on custom, there remains the burden of demonstrating actual or constructive knowledge of the policy-making official for the municipality:¹³

Actual knowledge may be shown by such means as discussions at council meetings or receipt of written information. 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.¹⁴

The plaintiffs do not allege that the policymakers for the City, the Police Chief and his Assistant Chiefs, had actual knowledge of the pattern of unconstitutional searches relied upon by the district court. Instead they argue that the pattern of unconstitutional searches by the SWGTF is sufficient to survive summary judgment because it was widespread enough to impute constructive knowledge to the policymakers.

We are not persuaded. First, the weakness in proof of any pattern of illegalities aside, the plaintiffs provided no evidence that the incidents were the "subject of prolonged public discussion or of a high degree of publicity."¹⁵ Rather they urge that any municipality that collects numerous offense reports, a small proportion of which include warrantless searches ostensibly, from the investigating officer's perspective, within an exception to the Fourth Amendment's warrant requirement, maintains not only a custom of unconstitutional searches, but that knowledge of this should be imputed to the municipal policymakers. This is functionally the respondeat superior regime the Supreme Court has repeatedly rejected.¹⁶

Second, the plaintiffs provide opinion evidence that the offense reports and number of warrantless searches performed by the SWGTF sent a clear signal to supervisors and policymakers that a pattern of unconstitutional behavior existed within the SWGTF.¹⁷ Such opinions as to whether or not policymakers had constructive knowledge do not create a fact issue, as the "experts" were unable to muster more than vague attributions of knowledge to unidentified individuals in "management" or the "chain of command."¹⁸ In fact, the offense reports were summarized and presented...