668 F.2d 869 (6th Cir. 1982), 80-3010, Hays v. Jefferson County, Ky.

Docket Nº:80-3010, 80-3011.
Citation:668 F.2d 869
Party Name:Donald L. HAYS, Jr., and Michael C. Potter, Plaintiffs-Appellees, Cross-Appellants, v. JEFFERSON COUNTY, KENTUCKY, Wilbur Bilyeu and Russell McDaniel, Defendants-Appellants, Cross-Appellees.
Case Date:January 04, 1982
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 869

668 F.2d 869 (6th Cir. 1982)

Donald L. HAYS, Jr., and Michael C. Potter,

Plaintiffs-Appellees, Cross-Appellants,

v.

JEFFERSON COUNTY, KENTUCKY, Wilbur Bilyeu and Russell

McDaniel, Defendants-Appellants, Cross-Appellees.

Nos. 80-3010, 80-3011.

United States Court of Appeals, Sixth Circuit

January 4, 1982

Argued Oct. 21, 1980.

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Eugene L. Mosley, N. Scott Lilly, Asst. Jefferson County Attys., Louisville, Ky., for defendants-appellants, cross-appellees.

Joseph L. White, Pallo, White & Prizant, Louisville, Ky., for plaintiffs-appellees, cross-appellants.

Before MERRITT and JONES, Circuit Judges, and GIBSON, [*] District Judge.

BENJAMIN F. GIBSON, District Judge.

This civil rights case arose from a violent altercation between police and demonstrators on the night of September 26, 1975, at Bittersweet Shopping Center in southwestern Jefferson County, Kentucky. The final judgment below awarded plaintiff Hays compensatory damages of $20,000 against Jefferson County, and $5,000 each against Col. Russell McDaniel and Major Wilbur Bilyeu. Plaintiff Potter was awarded compensatory damages of $2,000 against Jefferson County, and $500 each against McDaniel and Bilyeu. Jefferson County was further ordered to pay $20,000 to counsel for plaintiffs as attorneys fees.

The court below, on a motion for judgment notwithstanding the verdict, remitted the jury's award of punitive damages to plaintiff Hays of $81,000 against Jefferson County and $9,000 against Bilyeu. The award of punitive damages to plaintiff Potter of $9,000 against Jefferson County and $1,000 against Bilyeu was also remitted.

The Bittersweet Shopping Center is across from Southern High School. The September 26, 1975 demonstration was one of many that took place during the preceding weeks to protest court ordered busing for school desegregation, which had been implemented on September 4, 1975 with the beginning of the school year. The demonstrations occurred at sites throughout Jefferson County and in downtown Louisville as well as the Bittersweet Center. Many of these demonstrations were peaceful and orderly, although some had resulted in varying degrees of violence.

The September 26th demonstration at Bittersweet began uneventfully. Later, a fire was built in the front of the parking lot, adjacent to Preston Highway. Although

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originally contained, the fire grew over time. The crowd also grew as the day progressed from about 50 to 75 people in the morning to approximately 300 to 500 people by late in the evening. At about 7:30 or 8:00 p. m. defendant Bilyeu made a determination that the fire was becoming dangerous and should be extinguished. He called in reinforcements and within a few minutes 40 to 50 police officers arrived. With the presence of these policemen the crowd became agitated. After consulting with some of the leaders of the demonstration Major Bilyeu sent them away and called the fire department. When the firemen arrived, however, a small group of demonstrators prevented them from putting the fire out. At this time Major Bilyeu decided that the crowd was out of control and had to be dispersed. He sent the firemen away and recalled the police. The police assembled in the Southern High School parking lot and prepared to disperse the crowd.

The descriptions of various witnesses as to what occurred shortly before and at the time the police entered the Bittersweet parking lot were conflicting. There was conflicting testimony as to the number of warnings to disperse given to the crowd, the number of demonstrators that were still at the scene at the time the police entered the parking lot, the amount of tear gas used, and what the crowd was doing.

After the warnings to disperse, tear gas was fired into the crowd. Within 15 to 30 seconds the police crossed the street and entered the crowd. The police began their advance toward the crowd before Major Bilyeu ordered them to do so. He attempted to stop them with the repeated bullhorn command "don't cross the street." When this proved ineffective, however, he took no further action to control them.

Plaintiffs' witnesses from all areas of the Bittersweet Shopping Center testified to widespread damage to vehicles caused by police officers. There was even some police testimony as to property damage caused by police. Nor was the police violence confined to property. Several witnesses testified to seeing police officers striking demonstrators and passersby with their riot sticks and pushing and kicking some of them.

The police were all wearing blue jumpsuits, gloves, helmets and gas masks. Many witnesses testified to an inability to identify any individual police officers although they attempted to do so. Defendants admit that identification patches had not been sewn onto the jumpsuits, at least in part because the suits had been obtained only a short time before this incident. There was considerable testimony that the vast majority of the officers were not wearing their nametags on the jumpsuits. A Jefferson County Police Department lieutenant testified that probably 90 percent of the police officers had no identification tags on.

During the course of the violence that evening plaintiff Potter was struck across the knuckles and repeatedly on the back and shoulders by a group of unidentified police officers. Plaintiff Hays was severely beaten and kicked into a grand mal seizure and unconsciousness by another group of five or six unidentified officers. They were also subjected to considerable verbal abuse. Both men were taken to the hospital where Potter was treated and released. Hays spent approximately ten days in the hospital. Each of the plaintiffs had been taking part in the demonstration and had taken part in others previously. Neither had had any difficulty at any other demonstration, nor was either arrested or charged with a crime for their activities at the Bittersweet Shopping Center.

The defendants in this action are the county and the chief and deputy chief of the county police department. Plaintiffs' theory of liability was based on the defendants' negligent training, supervision, and control of the unidentified officers. The trial court's instructions were based on a simple negligence standard. 1 Because

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this Court holds that simple negligence is insufficient to support liability of high police officials and municipalities for inadequate training, supervision, and control of individual officers, we must vacate the verdict and remand this matter to the District Court for a new trial.

The question of whether simple negligence is sufficient to support a civil rights action for the violation of constitutional rights, either under 42 U.S.C. § 1983 or directly under the constitution with jurisdiction based on 28 U.S.C. § 1331, has been troublesome to the bench and bar for some time. In Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), Mr. Justice Rehnquist, writing for the majority of the Supreme Court, said "(W) hether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action." Id. at 139-40, 99 S.Ct. at 2692. Several of the lower federal courts have addressed the question in various contexts with seemingly varying results.

The law is clear that liability of supervisory personnel must be based on more than merely the right to control employees. Without more, such a theory would allow liability on a respondeat superior basis-a basis expressly rejected by the Supreme Court in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) under § 1983, and by this court in Jones v. City of Memphis, 586 F.2d 622 (6th Cir. 1978) in a direct constitutional action pursued in accordance with the case of Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Specifically, the Supreme Court in Monell stated: "By our decision in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability. See 423 U.S., at 370-371 (96 S.Ct., at 603-604)." Monell v. Department of Social Services, 436 U.S. at 694 n.58, 98 S.Ct. at 2037. The Rizzo case requires that there must be a direct causal link between the acts of individual officers and the supervisory defendants. Rizzo v. Goode, 423 U.S. at 370-71, 96 S.Ct. at 603-604. It is essentially this same concept that requires that the implementation or execution of a governmental policy or custom be shown before liability can be imposed on a municipality. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

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The language and history of § 1983 are silent as to whether supervisory officials and municipalities can be held liable for negligently having failed to adequately train, supervise, and control individual police officers who violate a plaintiff's constitutional rights. The language of § 1983 providing that a person who "subjects, or causes to be subjected" another to a deprivation of constitutional rights appears on its face to be broad enough to encompass merely negligent deprivations. The broad potential of this language is bolstered to some extent also by the Supreme Court's declaration that "(s) ection (1983) should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). The trend of the case law, however, has not been in this direction. Rather, the case law...

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