Kibbe v. City of Springfield

• Decision Date: 27 November 1985
• Docket Number: No. 85-1078,85-1078
• Citation: 777 F.2d 801
• Parties: Lois Thurston KIBBE, Administrator of the Estate of Clinton Thurston, Plaintiff, Appellee, v. CITY OF SPRINGFIELD, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 801

777 F.2d 801

Lois Thurston KIBBE, Administrator of the Estate of Clinton

Thurston, Plaintiff, Appellee, v. CITY OF SPRINGFIELD, Defendant, Appellant.

No. 85-1078.

United States Court of Appeals, First Circuit.

Argued Sept. 11, 1985.

Decided Nov. 27, 1985.

Edward M. Pikula, Asst. City Sol., with whom Richard T. Egan, City Sol., Harry P. Carroll, Deputy City Sol., Springfield Mass., were on brief for defendant, appellant.

Terry Scott Nagel, Springfield, Mass., on brief for plaintiff, appellee.

Before COFFIN, Circuit Judge, WISDOM ^* and ALDRICH, Senior Circuit Judges.

COFFIN, Circuit Judge.

Appellee Lois Thurston Kibbe, administratrix of the estate of Clinton Thurston, filed this suit under 42 U.S.C. Sec. 1983 alleging that appellant City of Springfield and a number of its police officers deprived Thurston of his civil rights in a motor vehicle pursuit that ended with a police officer shooting Thurston in the head, causing his death. The jury returned verdicts against the police officer who fired the fatal shot and against the City, but found for three other officers. ¹ It awarded one dollar in compensatory damages and five hundred dollars in punitive damages against the officer and compensatory damages in the amount of fifty thousand dollars against the City. Appellant challenges the district court's refusal to grant either a directed verdict or judgment notwithstanding the verdict, and also claims error in the jury charge. ² For reasons we discuss below, we affirm.

1. Factual Background

At about 6:30 p.m. on September 28, 1981, the Springfield Police Department received a phone call on its 911 emergency line reporting a violation of a restraining order. A cruiser was sent to investigate. A second call about an hour later reported that the subject of the restraining order had called the apartment and threatened to come after its occupants with a knife. Another cruiser was dispatched. A third call reporting that the subject was breaking down the door and a fourth stating that Pamela Etter was being assaulted at that moment also were received, and cruisers were sent to the scene. The officers who arrived after the last call found that Etter had been abducted by Clinton Thurston and driven away in his 1971 Mercury.

The car was first spotted by Officer Erich Risch, who was wearing a red windbreaker over his uniform and driving an unmarked car that had flashing headlights, a portable blue light, and a siren, all activated. When Thurston's car stopped at an intersection, Risch walked up to the driver's window and identified himself as a police officer, but Thurston drove off.

Risch gave chase, other police cruisers joined in, and Officers Frank Daigneau and John Troy set up a roadblock at a point ahead of the chase. As Thurston passed by the barrier at about twenty-five miles per hour, both officers brandished guns and Troy fired at the car. A nick was found later in the left rear wheel. Appellant claimed that Thurston had accelerated toward Daigneau, narrowly missing Troy. After this episode, a police officer reported to the dispatcher that Thurston "had attempted to run over a police officer." The dispatcher then broadcast: "This is not only a violation of a restraining order, it's assault by means of a vehicle." According to the rules and regulations of the City's police department, the use of firearms is allowed to effect an arrest when certain circumstances exist, including an officer's reasonable belief that the crime in question includes the use or threatened use of deadly force. Lieutenant Thomas Rondeau testified that a car is considered a deadly weapon.

Thurston turned left at the first roadblock, and encountered a second one a block away. Officer Kenneth Schaub had placed his vehicle across the right hand lane while he stood in the middle of the three lanes and attempted to flag down Thurston's vehicle. Thurston again failed to stop, and the City claims that he swerved toward Schaub and that Schaub had to dive to avoid being hit. Schaub then fired at the car. Schaub testified that a moment earlier, as Thurston headed toward the roadblock, Schaub drew his gun and would have shot to kill if he had been able to get a clear shot.

Officer Theodore Perry, who was on a motorcycle and had not heard instructions from headquarters that motorcycles should try to stay out of the pursuit, accelerated past several cruisers at this point, and engaged in a cat and mouse exchange with Thurston. Three times, the officer moved up even with the rear window on the driver's side of Thurston's car, and each time Thurston swerved toward the left. Perry fired at Thurston after the second and third swerves, apparently hitting him with the second shot. The vehicle slowed down and came to a stop. Perry's first shot apparently hit a house near where Thurston's car coasted to a stop.

As Risch ran to Thurston's car, he ordered him to get out. Risch testified that when Thurston failed to do so, Risch leaned in through the driver's window and struck Thurston on the head with his flashlight, and then he and several other officers dragged the apparently unconscious Thurston from the car. ³ They threw him to the ground, and, as he lay face down, they handcuffed him. Perry did not report to the street supervisor that he had shot at Thurston, and the officer who transported Thurston to the hospital was not told that any shots had been fired or that Thurston may have been shot. It was not until someone from the hospital called the police station to report that Thurston was in serious condition that street supervisor Rondeau suggested that doctors check for a bullet wound. Doctors then took x-rays and detected the bullet which had entered Thurston's brain. He died a short time later.

2. Discussion

a. Judgment NOV and Directed Verdict

It is by now axiomatic that Sec. 1983 liability may not be imposed upon a municipality simply on the basis of respondeat superior, but it must instead be premised on a finding that the "injuries [were] inflicted pursuant to government 'policy or custom' ", City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 2429, 85 L.Ed.2d 791 (1985); Monell v. Department of Social Services, 436 U.S. 658, 694 and n. 58, 98 S.Ct. 2018, 2031 and n. 58, 56 L.Ed.2d 611 (1978); Voutour v. Vitale, 761 F.2d 812, 819-20 (1st Cir.1985). Appellee argued primarily that the City should be found liable here because it had a policy or custom of inadequately training its police officers. A number of cases, including this court's recent Voutour v. Vitale, have accepted "inadequate training" as an actionable municipal policy or custom. Marchese v. Lucas, 758 F.2d 181, 188-89 (6th Cir.1985); Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983); Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.1981); Owens v. Haas, 601 F.2d 1242, 1246-47 (2nd Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979). Under this theory, the city is liable either for failing to implement a training program for its officers or for implementing a program that was grossly inadequate to prevent the type of harm suffered by the plaintiff. Voutour v. Vitale, 761 F.2d at 820 ("supervisor must demonstrate at least gross negligence amounting to deliberate indifference, and ... this conduct must be causally linked to the subordinate's violation of plaintiff's civil rights"); Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.1982); Wellington v. Daniels, 717 F.2d at 936 (4th Cir.1983); see Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir.1983).

Although we review the evidence in more detail later, we summarize it briefly here, as background for our inquiry into the Supreme Court's latest holding as to the required showing of a policy of inadequate training. Here, in an admittedly close case, the evidence consisted principally of: (1) testimony that there was but little guidance for undertaking an automobile chase; (2) testimony, contrary to that of the officers, that Thurston was not posing a life-threatening hazard to them; (3) a department rule on the use of firearms which in part required preliminary resort to less severe alternatives, arguably ignored by the officers; (4) another part of the rule which proscribed firing where there was substantial danger to innocent people, arguably violated by two officers; (5) a dispatcher's arguably overzealous announcement on police radio; and (6) evidence of looseness in investigating shootings.

Four members of the Supreme Court recently have raised doubts as to whether a harm allegedly caused by a policy of gross negligence in police training could meet Sec. 1983's standard of causation. Tuttle, 105 S.Ct. at 2436 n. 7. We, however, continue to believe this is a viable theory of municipal liability because we conclude that it is possible to show "an affirmative link", Tuttle, 105 S.Ct. at 2436, between a policy of inadequate training and resort to harmful police methods. We base our conclusion on the belief that properly trained officers would avoid certain techniques as inappropriate for some circumstances. In Voutour, we referred to the affidavit of a putative expert witness in police training and procedure who stated that the shooting in that case was a highly predictable result of the inadequate training received by the town's police officers. 761 F.2d at 821-22. Even without expert testimony, we believe a plaintiff could show by a preponderance of the evidence that, for example, the failure to train police officers in how to conduct high speed chases caused the death of an innocent pedestrian struck either by a police cruiser or the suspect's car.

We thus come to the more specific issue of whether inadequate training was a viable theory in this case. Appellant would have us find that Clinton Thurston was killed as the result of a single incident of police action which, under Tuttle, 105 S.Ct. 2427, is insufficient, as a matter of law, to establish a municipal...