Berry v. City of Detroit, 92-1688

• Citation: 25 F.3d 1342
• Decision Date: 23 August 1994
• Docket Number: No. 92-1688,92-1688
• Parties: 39 Fed. R. Evid. Serv. 960 Doris BERRY, Personal Representative of the Estate of Lee F. Berry, Jr., deceased, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1342

25 F.3d 1342

39 Fed. R. Evid. Serv. 960

Doris BERRY, Personal Representative of the Estate of Lee F.

Berry, Jr., deceased, Plaintiff-Appellee, v. CITY OF DETROIT, Defendant-Appellant.

No. 92-1688.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 1, 1993.

Decided June 17, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 23, 1994.

Juan A. Mateo (argued and briefed), N.C. Deday LaRene, Detroit, MI, for the Estate of Lee F. Berry, Jr., deceased, plaintiff-appellee.

Alberta P. Whitfield, City of Detroit Law Dept., Detroit, MI, David L. Rose (argued and briefed), Washington, DC, for defendant-appellant.

Before: MILBURN and GUY, Circuit Judges; and KRUPANSKY, Senior Circuit Judge.

RALPH B. GUY, Jr., Circuit Judge.

A jury awarded Doris Berry (plaintiff), six million dollars for the death of her son, Lee Berry, Jr., who was shot by a Detroit police officer. On appeal, the City of Detroit (City) raises three arguments. First, the City asserts that plaintiff failed to offer any evidence that the City's policymakers had adopted a policy or ratified a custom of unconstitutional use of deadly force. Second, the City argues that plaintiff's evidence of the City's alleged failure to train and discipline its officers failed to show any custom or policy of the City that amounted to deliberate indifference to the rights of citizens or, alternatively, that there was no evidence that any alleged failure on the City's part was a proximate cause of Lee Berry's death. Finally, the City takes issue with the jury instructions. We conclude that plaintiff's evidence was insufficient to prove deliberate indifference on the part of the City such as to give rise to municipal liability under 42 U.S.C. Sec. 1983. Therefore, we reverse the judgment against the City.

I.

On June 23, 1987, Lee Berry, Jr. (Lee), who was employed in a family moving business, was driving the company van in rush-hour traffic to the family residence in Detroit. According to the testimony of Lee's sixteen-year-old brother, Dwayne Berry, and his eight-year-old nephew, David Askew, both of whom were in the van, Lee committed several misdemeanor traffic violations during this journey. The infractions consisted of running a red light, driving on the wrong side of the road, and passing three cars that were stopped for a red light.

These traffic offenses attracted the attention of Officer Joseph Hall, a 17-year veteran of the Detroit Police Department. Exactly what happened immediately thereafter, however, is a matter of some dispute. On the witness stand, Hall testified--in contrast to the testimony of the surviving occupants of the van and in partial contradiction of his earlier deposition testimony--that the violations prompted a dangerous, high-speed chase involving the police. Dwayne and David, on the other hand, offered a markedly different account of what transpired. They testified that Lee had not been speeding, had not attempted to flee from arrest, and had not committed any traffic violations other than those described above.

Moments after the van arrived at the Berry family home, Hall arrived on the scene. Hall confronted Lee Berry and a struggle then ensued, during which Hall shot Lee in the back from a distance estimated as being between three and ten feet. ¹ Although no eyewitnesses observed the shooting, David, Dwayne, and several bystanders stated that Hall, upon his arrival at the Berry home, used profanity, threats, and physical force in attempting to effect an arrest. Hall, however, claimed that Lee attacked him; that the gun fired accidently when Lee, during their struggle, attempted to wrestle the pistol away from him; and that he continued to fire at Lee while Lee was fleeing because the firearm was set on "automatic" and because his (Hall's) vision had been impaired by blood. Plaintiff's expert witnesses opined that Lee had not touched Hall's revolver because Lee was several feet away from the gun when it fired, that Hall had not been blinded by blood, and that Hall's service revolver lacked any type of "automatic" firing mechanism.

Shortly after the incident, the police department conducted an investigation that exonerated Hall. No criminal charges were brought against him and no sanctions were imposed upon him. At the time of trial, Hall remained a member of the Detroit Police Department on disability retirement with full pension benefits.

Plaintiff initiated this suit against Hall and the City ² under 42 U.S.C. Sec. 1983. Plaintiff's complaint also listed several state law causes of action. Plaintiff claimed that the City pursued a deliberate policy of failing to train or discipline adequately its police officers in the proper use of deadly force, which failures caused the violation of Lee's constitutional rights under the Fourth and Fourteenth Amendments. At the conclusion of the trial, the jury returned verdicts against both Hall and the City in the amount of six million dollars.

Both Hall and the City appealed from the denial of their motions for j.n.o.v. or for a new trial. While this appeal was pending, the parties settled Hall's appeal and jointly moved for an order remanding that appeal for consideration of the settlement. As a result of this settlement, the City's obligation under the judgment was reduced to two and one-half million dollars. The only question before this court is the issue of municipal liability for Lee Berry's death.

II.

Pursuant to the Detroit City Charter, the Board of Police Commissioners (Board) is the agency with authority to establish City policy for the Detroit Police Department. The chief of police administers the department pursuant to the policies, rules, and regulations established by the Board. The City argues that plaintiff failed to introduce any evidence of a custom or a deliberate choice of the Board to adopt a policy of inadequate training or discipline with regard to the use of deadly force, and that evidence of such a custom or choice is necessary to sustain a judgment against the City under 42 U.S.C. Sec. 1983. This is an incorrect statement of the law.

Any discussion of municipal liability under Sec. 1983 begins with Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court held that municipalities can be sued directly under Sec. 1983 where the action of the municipality itself can be said to have caused the harm, as when "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690, 98 S.Ct. at 2035-36. Municipal liability for the actions of employees may not be based on a theory of respondeat superior. Monell went on to clarify that municipal liability may be predicated upon grounds other than explicit expressions of official policy:

Moreover, although the touchstone of the Sec. 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other Sec. 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels.

Id. at 690-91, 98 S.Ct. at 2036.

More recently, the Court addressed the issue of municipal liability under Sec. 1983 when the plaintiff has alleged that his or her rights were violated as a result of a municipality's failure to train its police officers adequately. In City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the plaintiff had been arrested and brought to the police station, whereupon she slumped to the floor on two separate occasions and was left lying there. The plaintiff brought a Sec. 1983 action against the city for failure to train its officers to recognize when a person in custody is in need of medical assistance. The Court held that

the inadequacy of police training may serve as the basis for Sec. 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. This rule is most consistent with our admonition in Monell, 436 U.S., at 694 , and Polk County v. Dodson, 454 U.S. 312, 326 [102 S.Ct. 445, 454, 70 L.Ed.2d 509] (1981), that a municipality can be liable under Sec. 1983 only where its policies are the "moving force [behind] the constitutional violation." Only where a municipality's failure to train its employees in a relevant respect evidences a "deliberate indifference" to the rights of its inhabitants can such a shortcoming be properly thought of as a city "policy or custom" that is actionable under Sec. 1983.

Id., 489 U.S. at 388-89, 109 S.Ct. at 1204-05 (footnote omitted).

The City observes that the only policy decision it made concerning the use of deadly force by police officers was the deadly force policy that the Board formally established on June 19, 1986. No one disputes that this policy, as written, is constitutional. The City argues that, because there was no other formal policy decision made by the Board, it cannot be held liable. The Supreme Court, however, has concluded that there need not be a formal policy for there to be an unconstitutional custom that amounts to a policy. "It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice ... can establish what is state law." Nashville, Chattanooga & St. Louis Ry. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254 (1940) (quoted in Monell, 436 U.S. at 691 n. 56, 98 S.Ct. at 2036 n.56). In City of Canton, the Court clarified this pronouncement when it concluded that only where a...