James v. Harris County

• Decision Date: 04 August 2009
• Docket Number: No. 07-20725.,07-20725.
• Citation: 577 F.3d 612
• Parties: Julian JAMES, Individually; Daphne Bates Harrison, Individually and as Representative of the Estate of Hiji Eugene Harrison, Deceased, and as Next Friend of H.E.H. a Minor, Plaintiffs-Appellants, v. HARRIS COUNTY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

577 F.3d 612

Julian JAMES, Individually; Daphne Bates Harrison, Individually and as Representative of the Estate of Hiji Eugene Harrison, Deceased, and as Next Friend of H.E.H. a Minor, Plaintiffs-Appellants, v. HARRIS COUNTY, Defendant-Appellee.

No. 07-20725.

United States Court of Appeals, Fifth Circuit.

August 4, 2009.

Robert Lee Galloway, Law Office of Robert L. Galloway, Benjamin Lewis Hall, III, The Hall Law Firm, T. Gerald Treece (argued), South Texas College of Law, Brian Weil Zimmerman, Zimmerman, Axlerad, Meyer, Stern & Wise, Houston, TX, for Plaintiffs-Appellants.

Lisa Rice Hulsey, George Andrew Nachtigall, Bruce S. Powers, Asst. Cty. Atty. (argued), Houston, TX, Michael Paul Fleming, Michael P. Fleming & Associates, P.C., Houston, TX, for Defendant-Appellee.

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

Before JOLLY, SMITH and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this 42 U.S.C. § 1983 case, the plaintiffs seek to impose municipal liability on Harris County, Texas, for the death of their family relative who was killed by a deputy sheriff who was allegedly engaging in unconstitutional excessive force during an arrest. They allege the County is liable for the deputy's unconstitutional acts under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because the Harris County Sheriff's failure to thoroughly investigate officer-involved shootings created in the department an expectation of impunity for the use of excessive deadly force.

After a ten-day trial, the jury could not reach a verdict on the threshold issue, whether the deputy sheriff used excessive force. Instead of granting a new trial on the issue of excessive force, the district court granted judgment as a matter of law in favor of Harris County on the grounds that, irrespective of excessive force, the evidence was insufficient to establish the County's liability for Wilkinson's actions. Harrison's family appeals. After careful review of the evidence, we affirm.

I.

The underlying facts are disputed. The parties agree that on May 16, 2004, at approximately 1:20 a.m., Deputy Sheriff William Wilkinson stopped a vehicle driven by Hiji Harrison, and that during the course of that traffic stop Wilkinson shot Harrison once in the back and three times in the face. The parties disagree as to whether the shooting was excessive to Wilkinson's need to protect himself.

At trial Wilkinson testified that he stopped Harrison because he was speeding. According to Wilkinson, Harrison consented to a search of the vehicle. During his search, Wilkinson found a pistol on the floor board. Leaving the pistol there, he returned to the patrol car, where he had secured Harrison, and told him that he was under arrest. Wilkinson instructed Harrison to turn around in the seat and extend his arms behind his back so that he could be handcuffed. Harrison complied initially, but after his first hand was cuffed, a struggle followed. Wilkinson testified that Harrison used his free hand to pull Wilkinson into the backseat, then began to "fish and grab" for a gun. Wilkinson testified that because he feared for his life, he shot Harrison in the back. Fearing Harrison would arise and come after him, Wilkinson shot him three more times in the face, and held him at gunpoint until backup arrived.

Harrison's family argued to the jury that this testimony was materially inconsistent with the evidence. They pointed out that although Wilkinson claimed Wilkinson shot Harrison while he was in the backseat of the patrol car, investigators recovered no gunpowder residue from the backseat, and the position of the shell casing suggested Wilkinson fired his gun while standing outside the car. The family also showed that Harrison's autopsy report indicated no bruising or other injury that would suggest a struggle.

The family argued that the County was liable for Wilkinson's actions because, they alleged, the Sheriff's failure to thoroughly investigate officer-involved shootings created in the department an expectation of impunity for the use of excessive deadly force. In support, the family called experts to testify that a pattern of inadequate investigations reflected an unwritten policy of under-investigating officer-involved shootings. One of those experts, Dr. David A. Klinger, connected the inadequate investigations to subsequent officer shootings, opining that people at the "bottom of an organization" tend to break institutional rules if the rules are not enforced.

As we have noted, the trial lasted ten days. After the jury had heard the family's evidence, the County moved for judgment as a matter of law on the issue of its liability for Wilkinson's alleged actions. That motion was denied. In due course, the case was submitted to the jury which, after six days of deliberation, informed the court that it could not reach a verdict on the threshold issue, whether Wilkinson had used excessive force. The district court then granted the County's renewed motion for judgment as a matter of law, holding that, although the evidence was sufficient to establish that Wilkinson used excessive force, it was insufficient to establish the County's liability for Wilkinson's actions. The family appeals.

II.

At the outset we need to understand the precise theory of liability asserted against the County.¹ The arguments in the family's briefs are wide-ranging and the dots are not always connected, but the following salient points can be gleaned from the allegations: that the Sheriff inadequately investigates officer-involved shootings; that, after a cursory investigation, he then improperly delegates to the Harris County District Attorney's office the responsibility to investigate the conduct of the officers who were involved in shootings, with the tacit understanding that if no criminal indictment issues, the officer would not further be investigated or disciplined; that as a result of this improper "delegation," the Sheriff abdicated his responsibility to investigate to conclusion officer-involved shootings; that the Sheriff's hands-off approach created in the department the understanding that officers would be immune from discipline for the use of excessive deadly force; and, finally, that this understanding was the moving force causing Wilkinson's reckless use of deadly force on the night in question.

We understand the family's allegations, although multiple, to be aimed at a focused policy claim: that it was the Sheriff's official policy to forgo a thorough investigation of officer-involved shootings, and concomitantly to ignore whether officer discipline was required in these situations.

In granting the County's Rule 50 motion, Judge Atlas, in an extended and thoroughly considered opinion, assumed that the family's evidence was sufficient to establish the existence of this alleged official policy. The judge concluded, however, that there was no evidence that Wilkinson himself had personal knowledge of the alleged policy, nor that the alleged policy was so widely known that it created in the department an expectation of impunity for the use of excessive deadly force, and therefore the evidence was insufficient to establish that the alleged policy was the moving force behind Wilkinson's actions on the night in question.

III.

Before we review the district court's judgment, we will first set out the standard of review and provide an overview of the law applicable to § 1983 claims of municipal liability.

We review the district court's Rule 50 judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002). Federal Rule of Civil Procedure 50(a) authorizes the entry of judgment as a matter of law "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." In our review here we ask whether there is "a conflict in substantial evidence on each essential element" of the family's claim against the County such that a reasonable jury could find in their favor. Anthony, 284 F.3d at 583 (citation omitted).

The principles of municipal liability under § 1983 are well-established. A municipality is not liable under § 1983 on the theory of respondeat superior, Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), but instead only for acts that are directly attributable to it "through some official action or imprimatur." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001). To hold a municipality liable under § 1983 for the misconduct of an employee, a plaintiff must show, in addition to a constitutional violation, that an official policy promulgated by the municipality's policymaker was the moving force behind, or actual cause of, the constitutional injury. Id. The official policy itself must be unconstitutional or, if not, must have been adopted "with deliberate indifference to the known or obvious fact that such constitutional violations would result." Johnson v. Deep East Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir.2004); see also Piotrowski, 237 F.3d at 579.

Official policy can arise in various forms. It usually exists in the form of written policy statements, ordinances, or regulations, but may also arise in the form of a widespread practice that is "so common and well-settled as to constitute a custom that fairly represents municipal policy." Piotrowski 237 F.3d at 579 (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984) (en banc)). A policy is official only "when it results from the decision or acquiescence of the municipal officer or body with `final policymaking authority' over the subject matter of the offending policy." Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737...