735 F.2d 838 (5th Cir. 1984), 81-2007, Webster v. City of Houston

Docket Nº:81-2007.
Citation:735 F.2d 838
Party Name:John Russell WEBSTER, et al., Plaintiffs-Appellees Cross-Appellants, v. The CITY OF HOUSTON, Defendant-Appellant Cross-Appellee.
Case Date:July 09, 1984
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 838

735 F.2d 838 (5th Cir. 1984)

John Russell WEBSTER, et al., Plaintiffs-Appellees Cross-Appellants,

v.

The CITY OF HOUSTON, Defendant-Appellant Cross-Appellee.

No. 81-2007.

United States Court of Appeals, Fifth Circuit

July 9, 1984

Rehearing En Banc Denied Aug. 9, 1984.

Page 839

David L. Crawford, James K. Gardner, Timothy James, Houston, Tex., for defendant-appellant cross-appellee.

Harvill & Hardy, Scott A. Sanes, G.P. Hardy, III, Houston, Tex., K. Michael Mayes, Conroe, Tex., for plaintiffs-appellees cross-appellants.

Page 840

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

Before CLARK, Chief Judge, BROWN, GOLDBERG, GEE, RUBIN, REAVLEY, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges. [*]

PER CURIAM:

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. Sec. 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. Sec. 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." 1

Page 841

To promote consistency in the adjudication of the rights of injured persons and the inhabitants of municipalities, the court en banc has agreed on the following formulation to govern the imposition of municipal liability:

A municipality is liable under Sec. 1983 for a deprivation of rights protected by the Constitution or federal laws that is inflicted pursuant to official policy.

Official policy is:

  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 Sec. 1983 unless they execute official policy as above defined.

    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:

    City policymakers not only govern conduct; they decide the goals for a particular city function and devise the means of achieving those goals. Policymakers act in the place of the governing body in the area of their responsibility; they are not supervised except as to the totality of their performance.

    * * *

    * * *

    [T]he delegation of policymaking authority requires more than a showing of mere discretion or decisionmaking authority on the part of the delegee.... The governing body must expressly or impliedly acknowledge that the agent or board acts in lieu of the governing body to set goals and to structure and design the area of the delegated responsibility, subject only to the power of the governing body to control finances and to discharge or curtail the authority of the agent or board.

    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

    Page 842

    ranked official" maintained a custom of using excessive force that overrode city policy. In the fact context of this case, the only "officials" involved were the mayor and city council on the one hand and, on the other, the Chief and a number of lesser officers of the Houston Police Department. There was no proof in this record whatsoever that any police officer subordinate to the Chief even possibly could have occupied the role of a city policymaker. Allowing the jury to speculate whether "other officers" could be policymakers was reversible error. It also hazards a violation of the prohibition against fixing municipal liability on the basis of respondeat superior.

    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. Sec. 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...

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