Trigalet v. City of Tulsa, 98-5261

• Decision Date: 07 February 2001
• Docket Number: No. 98-5261,98-5261
• Parties: (10th Cir. 2001) JEAN F. TRIGALET; MYRA J. TRIGALET, Personal Representatives of the Estate of Constance Trigalet, Plaintiffs-Appellees, v. CITY OF TULSA, OKLAHOMA, a municipal corporation, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1150

239 F.3d 1150 (10th Cir. 2001)

JEAN F. TRIGALET; MYRA J. TRIGALET, Personal Representatives of the Estate of Constance Trigalet, Plaintiffs-Appellees, v. CITY OF TULSA, OKLAHOMA, a municipal corporation, Defendant-Appellant.

No. 98-5261

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

February 7, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 92-CV-368)

Andrew C. Clarke of Bailey & Clarke, Memphis, Tennessee, for Plaintiffs-Appellees.

David L. Pauling, City Attorney, and Michael C. Romig, Senior Asst. City Attorney, Tulsa, Oklahoma, for Defendant-Appellant.

Before EBEL, LUCERO, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

This interlocutory appeal is before us on our grant of review under 28 U.S.C. 1292(b).¹ Specifically, the following controlling question of law was certified to this court:

whether, under the rationale of Williams v. City & County of Denver 99 F.3d 1009 (10th Cir. 1996), [op. vacated, 140 F.3d 855 (10th Cir. 1997), and j. vacated & case remanded, 1998 WL 380518 (10th Cir. June 26, 1998)], a municipality can be held liable if the City's actions can be characterized as arbitrary, or conscience-shocking, in a constitutional sense, even if there are no unconstitutional acts by an individual officer.

We answer this question in the negative. For purposes of this appeal the facts are not in dispute and are taken from the district court's orders of August 27, 1997 (denying summary judgment for defendants) and August 17, 1998 (denying in part and granting in part defendants' renewed motion for summary judgment and directing preparation of request for interlocutory appeal). These facts are summarized as follows.

In May of 1990, Constance Trigalet, Martha Annette Trigalet, and Steven Munson were killed when a GMC Safari Minivan struck their Ford Escort station wagon. The minivan had run a red light while being pursued by members of the Tulsa Police Department (hereinafter "TPD"). The sole reason for the police pursuit was for a stolen vehicle offense. There was no information that the suspects in the fleeing van had committed any violent felony or were known for violent behavior.

The minivan ran at least eight stop signs as one of the officers pursued it through residential areas of central Tulsa, passing a high school, a park and coming within blocks of the University of Tulsa. This portion of the pursuit involved speeds in excess of sixty to sixty-five miles per hour, with the fleeing van traveling through stop signs at major intersections at between forty and fifty miles per hour without slowing. The officers were aware of the likelihood of encountering traffic during the pursuit. No supervisor or watch commander was notified of the pursuit, nor was the pursuit supervised, although the TPD's written vehicle pursuit policy then in force required that all pursuits be supervised and directed officers to terminate such pursuits when the hazards outweigh the benefits.

The training director for the TPD at the time of the accident testified that officers received the following training on high-speed pursuits: (1) twenty-four hours of hands-on training regarding the mechanical operation of a vehicle; and (2) some additional amount of training on the philosophy of pursuits, the specifics of which he did not recall. The manager of safety and equipment for the TPD at the time of the accident testified that it was appropriate to chase any traffic offender no matter what the offense. Officers are trained to use due caution and common sense in evaluating pursuits. Due to the discretionary nature of the pursuit policy, unless a supervisor discontinues a chase, the decision to terminate a chase is solely up to the officer. From 1985 through 1990, seven officers were disciplined for pursuit policy violations. All of the violations dealt with technical violations of the pursuit policy and not the decision to initiate, continue, or terminate a pursuit.

Plaintiffs brought this 42 U.S.C. 1983 action against a number of defendants, including the City of Tulsa. Summary judgment for defendants was entered in March of 1993. Plaintiffs both appealed and filed a motion for reconsideration. This court dismissed the first appeal in August of 1993. The district court then granted the motion for reconsideration and vacated part of its earlier dismissal. Specifically, the district court reinstated the case against the three officers who had participated in the chase. The officers then appealed, claiming the district court erred in denying them qualified immunity. We determined that the officers were entitled to qualified immunity, holding that it was not clearly established in May of 1990 that a police officer could be liable under 1983 for an injury caused by a third party. See Trigalet v. Young, 54 F.3d 645, 648 (10th Cir. 1995) (reversing judgment of district court denying defendant officers' motion for summary judgment).

Plaintiffs then moved to revise the court's order dismissing the City, which was granted, thereby reinstating the action against the City. Tulsa then filed a motion for summary judgment, which was initially denied. However, all proceedings were stayed pending the Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998).

Plaintiffs had alleged that five elements of the TPD's policies and practices violated the constitutional rights of the decedents:

1. TPD failed to maintain records regarding prior pursuits which illustrates its lack of concern for the potentially fatal results of these pursuits;

2. TPD failed to adopt a policy which places meaningful restraints on officers regarding the institution, continuation and termination of pursuits;

3. TPD failed to properly monitor and supervise pursuits, leaving all pursuit decisions to highly-emotional, adrenalin-charged officers instead of allowing objective supervisory officers to make decisions concerning high-speed pursuits;

4. TPD failed to adequately train its officers with respect to the philosophy of pursuits including the justification for initiating, continuing and terminating pursuits; and

5. TPD failed to hold officers accountable for improper decisions to initiate, continue and terminate a pursuit.

Following the Supreme Court's decision in Lewis, in its August 1998 order, the district court granted summary judgment to Tulsa on plaintiffs' indirect, or derivative, liability claim. The court denied Tulsa's motion for summary judgment as to plaintiffs' theory that Tulsa could be liable based on its own policies and practices, holding that under the original panel decision in Williams, the city might be directly liable if its actions could be characterized as arbitrary or conscience shocking. The court specifically concluded that even though this court had vacated the Williams opinion, "its distinction between direct and indirect municipal liability is still valid and persuasive," and that there existed disputed issues of fact regarding whether the policies and practices of the Tulsa Police Department, by themselves, had violated plaintiffs' rights. This appeal followed.

I.

Williams was also a high-speed police case, resulting in the death of an innocent motorist caused when the speeding officer, who was not in actual pursuit of a suspect but was responding to a request for backup from a fellow officer, ran a red light and crashed into Ms. Williams' son's car. She sued the officer and the city under 42 U.S.C. 1983, claiming the defendants had violated her son's constitutional right to substantive due process. The claims against the city were based both on the city's alleged deliberate indifference to the need to institute training, supervision and discipline procedures with respect to emergency driving and on its own conduct in hiring and training the officer. Williams, 99 F.3d at 1013. The district court determined as a matter of law that the officer's conduct was not unconstitutional and that therefore the city's policies and procedures could not give rise to municipal liability based on the officer's conduct. Id. The court also held that the city could not be held liable based on its own conduct absent a constitutional violation by the officer. Id. We reversed, holding that the evidence would support the conclusion that the officer's conduct was unconstitutional and that the city might be held liable for that conduct. See id. We further held in light of governing Supreme Court authority that "the City may be held liable for its own conduct even absent unconstitutional conduct by [the officer]." Id. We concluded, however, that the evidence was insufficient "to send the issue of the City's direct liability to the jury." Id.

On petitions for rehearing, we vacated the opinion in Williams and directed rehearing en banc to address the following questions:

1. What standard determines whether the conduct of the officer in this case violated the constitutional rights of the plaintiff's decedent?

2. Applying that standard, is the ultimate determination of whether the constitution was violated by the officer's conduct to be made by the court or by a jury?

3. May the municipality be found liable for violating the constitutional rights of the plaintiff's decedent by its own conduct or policies in hiring and/or failing to train Officer Farr, even if the officer's conduct did not violate the constitutional rights of decedent?

Williams v. City & County of Denver, 140 F.3d 855 (10th Cir. 1997).

We later abated the appeal pending a decision by the Supreme Court in a factually similar case. We then vacated the district court's judgment and remanded Williams to that court for further proceedings in light of Lewis and Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997). See Williams v. City & County of Denver, No. 94-1190, 1998 WL 380518, at *1 (10th Cir. June 26, 1998).

Lewis involved a high-speed police pursuit in...