Davis v. Wayne County Sheriff

• Decision Date: 20 September 1993
• Docket Number: Docket No. 122594
• Citation: 507 N.W.2d 751,201 Mich.App. 572
• Parties: Diana DAVIS v. WAYNE COUNTY SHERIFF.
• Court: Court of Appeal of Michigan — District of US

Page 751

507 N.W.2d 751

201 Mich.App. 572

Diana DAVIS v. WAYNE COUNTY SHERIFF.

Docket No. 122594.

Court of Appeals of Michigan.

Submitted July 7, 1993, at Detroit.

Decided Sept. 20, 1993, at 9:45 a.m.

Released for Publication Nov. 5, 1993.

Hugh M. Davis, Jr., Detroit, for Diana Davis.

Robert Horvath, Southfield, for Tod A. Wilson.

Saul A. Green, Corp. Counsel, Mary S. Rowan, Asst. Counsel, and Garan, Lucow, Miller, Seward, Cooper & Becker by James G. Gross, Mary T. Nemeth, and Rosalind Rochkind, Detroit, for Wayne County Sheriff Robert Ficano.

Before DOCTOROFF, C.J., and MICHAEL J. KELLY and GRIBBS, JJ.

DOCTOROFF, Chief Judge.

Following a lengthy jury trial, plaintiffs were awarded various amounts of money in relation to their claims against the Wayne County Sheriff, Robert Ficano (hereafter the defendant), premised upon alleged violations of their constitutional rights as protected by 42 U.S.C. § 1983. ¹ Defendant appeals the June 13, 1989, judgment incorporating the terms of the verdict, and plaintiffs cross appeal, each raising a number of issues. We reverse and remand to the trial court for entry of judgment in favor of defendant.

The facts giving rise to plaintiffs' claims are tragic and essentially undisputed. ² Marc Davis (hereafter Davis) was employed by the County of Wayne as a deputy sheriff under the supervision of defendant. His wife, Diana Davis (hereafter Diana), was also employed by Wayne County under defendant's supervision and was nearing completion of the deputy sheriff training academy. Diana and Davis had been experiencing marital difficulties and were separated at the time of the incident. Diana and her two children were living with her half-sister, Kimberly Wilson (hereafter Kim), and Kim's husband, Tod Wilson (hereafter Tod). While off duty on the night of September 18, 1983, Davis came to the Wilson residence. An argument between Davis and Diana ensued. At one point, a Garden City police officer was dispatched to the scene to investigate the disturbance. After Diana assured the officer that she was not in danger, the officer left the scene.

About a half hour later, the argument again became heated. Tod and Kim also became engaged in the argument and attempted to offer Diana assistance. Testimony revealed that Davis had opened the trunk of Diana's car and began throwing her personal belongings on the Wilsons' driveway and front yard. Diana made some comments to the effect that she would take everything Davis had, including his job. At this point, Davis produced his service revolver and began shooting. As a result of the shooting rampage, Kim was killed, Tod was seriously wounded, and Diana was rendered a paraplegic. Davis was later convicted of various crimes related to the shooting, and all of the victims filed this action claiming, among other things, that they had been deprived of their constitutional rights as protected under 42 U.S.C. § 1983.

Initially, plaintiffs named Wayne County and defendant jointly, arguing common-law negligence. However, following a motion for summary disposition under MCR 2.116(C)(7), the court dismissed Wayne County pursuant to the doctrine of governmental immunity. The court also dismissed the negligence count against defendant on the same ground. Davis was initially named as a defendant in the suit, but was dismissed before trial, apparently pursuant to the provisions of a settlement. Plaintiffs proceeded to trial against defendant solely upon the theory that defendant violated their constitutional rights by adopting and maintaining departmental policies that precluded defendant from recognizing the danger attendant to Davis' continued possession and use of a firearm. Following a four-week trial, the jury awarded Diana $803,416, Kim's estate $651,752, Tod $50,000, and no recovery for the Davis' children. ³ We reverse the verdict and remand for entry of judgment in favor of defendant.

Pursuant to its terms, 42 U.S.C. § 1983 provides a remedy against any person who, under color of state law, deprives another of the rights protected by the Constitution. Collins v. Harker Heights, 503 U.S. ----, ----, 112 S.Ct. 1061, 1066, 117 L.Ed.2d 261 (1992); Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978). The statute creates no substantive rights, but instead merely supplies a remedy for deprivation of rights created by other laws. Graham v. Connor, 490 U.S. 386, 393-394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989); York v. Detroit (After Remand), 438 Mich. 744, 757-758, 475 N.W.2d 346 (1991). Liability under this section must be premised upon more than the fact that the municipality employs a tortfeasor. Monell, supra 436 U.S. at 691, 98 S.Ct. at 2036. In other words, respondeat superior is not a sufficient theory upon which to premise liability. Id.; Schuck, Municipal liability under Section 1983: Some lessons from tort law and organization theory, 77 GeoLJ 1753 (1989).

A cause of action under § 1983 is stated where a plaintiff shows (1) that the plaintiff was deprived of a federal right, and (2) that the defendant deprived the plaintiff of that right while acting under color of state law. Mollett v. Taylor, 197 Mich.App. 328, 344, 494 N.W.2d 832 (1992). In order to establish such a claim against a municipality or an agency thereof, the plaintiff must show that a policy or custom tantamount to a deliberate indifference for the constitutional rights of others actually caused the violation. Canton v. Harris, 489 U.S. 378, 381, 109 S.Ct. 1197, 1200, 103 L.Ed.2d 412 (1989); Monell, supra 436 U.S. at 691 and n. 5, 98 S.Ct. at 2036 and n. 5; York, supra 438 Mich at 758, 475 N.W.2d 346. Our Supreme Court has held that deliberate indifference requires something more than mere negligence. York, supra 438 Mich. at 757, 475 N.W.2d 346 (relying on Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 [1976], reh. den. 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 [1977].

Defendant's first contention is that plaintiffs failed to state a claim under § 1983 because Davis was acting outside the scope of his employment and, thus, not under color of state law when he shot the victims. It is true that in order to impose liability there must be a deprivation under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). However, defendant's argument that Davis was not acting under color of state law when he shot the victims is not dispositive of the claim against defendant.

Defendant is correct that, ultimately, plaintiffs' alleged violations resulted from Davis' shooting the victims while off duty. However, Davis was already dismissed from the suit and was not named as a defendant in the § 1983 action. Instead, plaintiffs' theory of recovery under § 1983 was premised upon the assertion that Davis' conduct was directly attributable to the policies adopted or not adopted by defendant. Specifically, plaintiffs' claim was based on the notion that defendant should have recognized Davis' propensity for violence and should have discharged him from his position as a deputy or at least taken away his service revolver.

A recent federal decision offers guidance in this regard. In Gibson v. Chicago, 910 F.2d 1510 (CA7, 1990), a police officer who had been declared unfit for duty and stripped of his powers as an officer shot and killed Gibson with his department-issued revolver. The federal appeals court concluded that it was proper for the trial court to summarily dismiss the police officer from the § 1983 action because he was not acting under color of state law when he shot Gibson. Id. at 1519. Nonetheless, the court reversed the trial court's decision to summarily dismiss the City of Chicago from the § 1983 action because the plaintiff had alleged that the city had adopted policies that also contributed to the violations. The court concluded that there were sufficient factual allegations in the plaintiff's complaint to survive summary disposition even though it was clear that the police officer was acting without lawful authority when the shooting occurred. Id. at 1519-1523. See also Stoneking v. Bradford Area School Dist., 882 F2d 720 (CA3, 1989), cert. den. sub nom Smith v. Stoneking, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990).

As in Gibson, plaintiffs' claim against defendant is based upon defendant's formulation of policy regarding the operation of the department and supervision of officers. Defendant does not, and indeed cannot, argue that the formulation of policy within the department is done outside the color of state law. See Gibson, supra at 1519 ("[T]he municipality itself is the state actor and its action in maintaining the alleged policy at issue supplies the 'color of law' requirement under § 1983."). Therefore, we agree with plaintiffs that defendant's assertion that Davis was not acting under color of state law does not automatically imply that defendant is absolved from § 1983 liability. We do not believe that it is appropriate to mesh the "color of law" issue with the causation issue. Accordingly, while we agree with defendant's argument that the violations asserted by plaintiffs were not caused by the policies adopted by defendant, we address that argument separately. For purposes of addressing the "color of law" issue, we assume that the policies caused the violations at issue. See Stengel v. Belcher, 522 F.2d 438, 441 (CA6, 1975). But see Bonsignore v. New York, 683 F2d 635 (CA2, 1982).

Defendant's next argument is that the court should have granted a directed verdict or judgment notwithstanding the verdict because plaintiffs, as a matter of law, failed to present sufficient evidence to support a cause of action under § 1983 against the department. At the conclusion of plaintiffs' proofs, defendant moved for a directed verdict and, following the verdict, defendant moved for a judgment...