Languirand v. Hayden

• Decision Date: 17 October 1983
• Docket Number: No. 81-4329,81-4329
• Citation: 717 F.2d 220
• Parties: John LANGUIRAND, Plaintiff-Appellee Cross-Appellant, v. John HAYDEN, An Individual, Defendant, City of Pass Christian, Etc., Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 220

717 F.2d 220

70 A.L.R.Fed. 1

John LANGUIRAND, Plaintiff-Appellee Cross-Appellant, v. John HAYDEN, An Individual, Defendant City of Pass Christian, Etc., Defendant-Appellant Cross-Appellee.

No. 81-4329.

United States Court of Appeals Fifth Circuit.

Oct. 17, 1983.

Lee N. Perry, George E. Morse, Frank P. Wittmann, III, Gulfport, Miss., for defendant-appellant cross-appellee.

Norman Breland, Gulfport, Miss., Walter J. Gex, III, Bay St. Louis, Miss., for plaintiff-appellee cross-appellant.

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

Before GOLDBERG, WILLIAMS and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

In this case we venture into the labyrinth of municipal liability under 42 U.S.C.A. Sec. 1983. ¹ Conscious of the grievous injury suffered by the plaintiff-appellee, we nevertheless reverse because the evidence fails to establish such a custom or policy of the City defendant as required for municipal liability under section 1983.

THE INCIDENT

On the evening of December 2, 1974, plaintiff John Languirand and his friends, Kim Merritt and Rickey Foley, drove from Bay St. Louis to Pass Christian, Mississippi. They were just "driving around." They stopped at a convenience store to buy some beer. Eventually, Foley requested they stop again so he could relieve himself. Languirand turned onto Shadowlawn, an unlit gravel road within the Pass Christian city limits. He drove up this road a short distance and stopped near the middle while Foley walked toward the side.

Meanwhile, about 10:30 or 11:00 p.m., John Hayden, a patrolman on the police force of defendant City of Pass Christian, had responded to a radio call concerning a prowler. He was near the reported location on Shadowlawn. As he drove onto this road, he turned off all the lights on his patrol car. He saw Languirand's car parked about "a hundred feet" from the residence of the person who had reported the prowler. Hayden stopped his car, got out, and turned on an overhead spotlight. Foley was moving back to the car. Hayden testified that he saw a shiny object in Foley's hands and that he shouted "stop" a number of times. Foley, however, testified that he was not carrying anything and that he heard nothing. Foley could not tell that the vehicle was a patrol car. Although Hayden testified that a flashlight was later found near the scene, this was not confirmed. He also stated that as Foley got in the car, it began to drive away and that he now saw the shiny object inside the car. Hayden testified that he was afraid because he thought this object was a gun. As the car began to drive away, Hayden fired his .357 Magnum revolver at the left rear tire of the car in an effort to stop it. Though he did not recall doing so, he fired a second shot also. During this time, John Languirand was bent over adjusting his tape deck, which was playing. He heard no warnings and did not see the patrol car pull up behind him. Suddenly, the spotlight was in his rearview mirror, he heard two shots,

his foot slipped off the brake and hit the gas pedal, and the car went down the road until it veered off and struck a tree. Hayden's second shot struck Languirand in the base of the neck, which caused extremely severe permanent injuries, including partial paralysis from the chest down.

PROCEEDINGS BELOW

Languirand filed suit on May 29, 1979, against Hayden and the City of Pass Christian ("City"). The case was tried to a jury before a United States Magistrate. The jury, in a general verdict without any special issues or interrogatories, found for Hayden and against the City for $1,500,000. The City appeals the judgment on the verdict against it. Languirand does not appeal the judgment in Hayden's favor. ² Languirand's suit against Hayden was based on the assertion that Hayden used excessive force in his attempt to stop or apprehend Languirand. However, it was not claimed that Hayden intended to shoot Languirand or anyone else. Rather, it was Languirand's theory that Hayden was grossly negligent in his shooting at the car in an attempt to stop it. ³ The case against Hayden was submitted to the jury on the basis of whether he used excessive force and was grossly negligent in doing so, but the jury was also instructed to find for Hayden if he acted "in good faith with a reasonable belief under the circumstances, including his experience and training, in the validity of his conduct." The theory of the plaintiff's suit against the City was that Hayden was inadequately trained, particularly in the use of his pistol, and that the shooting of Languirand was, as this contention was phrased in the trial court's charge to the jury, "a proximate result of the alleged policy or custom of the City of Pass Christian of placing armed officers on the streets without adequate training in the use of weapons or firearms." The charge required a determination that the City was grossly negligent for a verdict to be rendered against it, but did not submit any good-faith defense with respect to the City. ⁴

We reach only one issue--whether the evidence established the requisite custom or policy for which a city can be held liable under section 1983.

MUNICIPAL LIABILITY UNDER SECTION 1983

Since 1978 the law regarding the liability of municipalities under section 1983 has been radically changed. In that year, the Supreme Court decided Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which overruled the holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that cities were not among the "persons" subject to suit under section 1983. The Court held that municipalities "can be sued directly under Sec. 1983 for monetary, declaratory, or injunctive relief where ... 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." 436 U.S. at 690, 98 S.Ct. at 2035. Moreover, a city can 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 2035-36. With respect to custom, Monell quoted with approval the language of Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970), that "practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law." Monell 436 U.S. at 691, 98 S.Ct. at 2036 (footnote omitted). ⁵ However, Monell ruled that "Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some sort caused a constitutional tort" and that "a municipality cannot be held liable under Sec. 1983 on a respondeat superior theory." Id. at 691, 98 S.Ct. at 2036. As the Court stated, "[A] local government may not be sued under Sec. 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Sec. 1983." Id. at 694, 98 S.Ct. at 2037.

The Court in Monell did not address all the possible variations and permutations of section 1983 actions against municipalities. In Monroe v. Pape, the Court had observed that section 1983 "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 U.S. at 187, 81 S.Ct. at 484. However, Monell does distinguish between ordinary tort liability and the liability of governmental units under section 1983 in its holding that respondeat superior is not available in the latter situation. Moreover, in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the Court also distinguished between section 1983 actions against individuals and those against municipalities by denying the latter a good faith immunity. A distinction was also made between the section 1983 liability of governmental units and individuals in Newport v. Facts Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), where it was held that the former were not subject to punitive damages, though the latter were.

A footnote in the Monell opinion, in rejecting the argument for respondeat superior liability based on the contention that "liability follows the right to control the actions of a tortfeasor," states that "[b]y our decision in Rizzo v. Goode, [423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) ], we would appear to have decided that the mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support Sec. 1983 liability." Id. 436 U.S. at 694 n. 58, 98 S.Ct. at 2037 n. 58. In contrast to Monell, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), was not an action against a municipality, but rather against the individuals who were the mayor, city managing director, police commissioner, and other police supervisors of Philadelphia, ⁶ seeking injunctive relief under section 1983 on account of diverse incidents in which city police officers had, in the course of their duties, deprived various individual city residents of their constitutional rights. Approximately twenty such specific incidents were found by the trial court to have occurred during the preceding year, id. at 367-68, 96 S.Ct. at 602, which the Supreme Court noted, though found to reflect "a statistical pattern," was also found to be " 'fairly typical of ... police departments in major urban areas.' " Id. at 375, 96 S.Ct. at 606. The Supreme Court, reversing the district court and Court of Appeals, held that there was no evidence to support a claim...