Wincher v. City of Detroit

• Decision Date: 12 November 1985
• Docket Number: Docket No. 77327
• Parties: Peggy WINCHER, Dwaine E. Hopkins, Troy Odum, Betty Odum, Garland Hopkins III, Michelle Jackson, Herbert Odum, Garland Hopkins, Jr., and Terry Thompson, Plaintiffs-Appellants, v. CITY OF DETROIT and Albert Holman, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 125

376 N.W.2d 125

144 Mich.App. 448

Peggy WINCHER, Dwaine E. Hopkins, Troy Odum, Betty Odum,

Garland Hopkins III, Michelle Jackson, Herbert

Odum, Garland Hopkins, Jr., and Terry

Thompson, Plaintiffs-Appellants, v. CITY OF DETROIT and Albert Holman, Defendant-Appellee.

Docket No. 77327.

Court of Appeals of Michigan.

Submitted March 20, 1985.

Decided May 10, 1985.

Released for Publication Nov. 12, 1985.

Becker & Van Cleef, P.C., by Frank G. Becker, Dearborn, for plaintiffs-appellants.

Donald Pailen, Corp. Counsel, and William L. Woodard, Asst. Corp. Counsel, Detroit, for the City of Detroit.

Before WAHLS, P.J., and BRONSON and MEGARGLE, ^* JJ.

PER CURIAM.

This appeal arises out of a shooting incident which occurred January 20, 1979, between Albert Holman, an off-duty, disabled Detroit police officer, and the plaintiffs. Plaintiffs brought an action alleging a violation of 42 U.S.C. Sec. 1983 against the City of Detroit and a civil action for damages against the City of Detroit and Albert Holman on a respondeat superior theory. At the close of plaintiffs' proofs, the circuit court judge granted defendant city's motion for a directed verdict on the Sec. 1983 action. The jury returned a verdict of no cause of action against the city on the assault and battery claim but found defendant Holman liable for damages. Plaintiffs now appeal as of right from the court's order granting the directed verdict and from the order granting judgment on the verdict of no cause of action against the City of Detroit.

On January 20, 1979, plaintiffs were driving in the car of Dwaine Hopkins in the City of Detroit. As plaintiffs' car approached an intersection, they observed a car being driven by defendant Holman in the left-hand-turn lane apparently waiting to execute a turn. Holman, however, changed his course and remained traveling in the same direction as plaintiffs. Holman attempted to pass plaintiffs' car in the right-hand lane but was unable to complete the maneuver before the lanes merged. Holman began forcing the Hopkins vehicle into the northbound lane and oncoming traffic. Holman then flashed his bright lights, signaling the Hopkins car to stop.

The Hopkins vehicle stopped, and Holman exited from his vehicle and approached the Hopkins vehicle. A conversation took place, the exact nature of which was disputed in the testimony; but it does appear that Holman identified himself as a police officer. He was in his own vehicle and was not in uniform. Holman requested the driver, Dwaine Hopkins, to step out of the car. Holman testified that he saw the driver reach towards the back seat and he believed Hopkins was reaching for a gun. Officer Holman drew his gun in response, which caused Hopkins to panic and drive his vehicle away.

As the Hopkins car sped away, Holman aimed his gun and fired "at the right rear tire of the car trying to stop him". The bullet, however, missed its mark and struck Peggy Wincher in the left leg and grazed Troy Odum's right leg. Shortly thereafter the Hopkins vehicle came to a stop and the police were summoned.

Peggy Wincher was taken to the hospital where a bullet was removed. As a result of her injury, she testified that she sustained severe pain and discomfort as well as substantial medical expenses. In addition, she continues to experience periodic pain and swelling in her left leg and ankle and also has scarring from the bullet wound.

Herbert Odum testified that he has some "sleeping difficulties" following the incident while Garland Hopkins said that he had experienced "maybe a little mental difficulty" as a result of this incident. Terry Thompson testified that the shooting caused him to be frightened of the police and stated that he had dreamed of the incident a couple of times. Betty Odum testified that both Terry Thompson and Troy Odum had been emotionally affected by the incident.

At the conclusion of plaintiffs' proofs, the trial court granted defendant City of Detroit's motion for a directed verdict, finding "there was no showing that defendant City of Detroit had a policy and custom to have its police officers shoot a person whom he [sic] thought had committed a traffic violation * * * ". Consequently, the court granted the motion as to plaintiffs' civil-rights claim only.

Plaintiffs appeal, alleging three separate issues which will be discussed as follows.

I

Plaintiffs allege that the trial court erred in granting a directed verdict in favor of the City of Detroit on plaintiffs' civil-rights claim brought pursuant to 42 U.S.C. Sec. 1983. Plaintiffs claim that governmental involvement may be established by demonstrating that the action of the police officer was the result of an official policy or conduct on the part of defendant city. Plaintiffs allege that the City of Detroit, through its policies and customs, allowed the shooting of citizens in violation of the constitution, and that the unrebutted testimony of Officer Holman established that his actions were in accord with police training in the Detroit Police Department.

When considering a motion for a directed verdict, the trial court should view the evidence and all legitimate inferences which can be drawn therefrom in a light most favorable to the nonmoving party. Zmija v. Baron, 119 Mich.App. 524, 326 N.W.2d 908 (1982), citing Miller v. Great Lakes Steel Corp., 112 Mich.App. 122, 315 N.W.2d 558 (1982).

A municipality may be liable as a person under Sec. 1983. Monell v. Dep't. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, a respondeat superior theory is insufficient to establish liability. Rather, in order to impose municipal liability, the plaintiff must show that the action which is alleged to be unconstitutional is the implementation or execution of a governmental policy or custom. Monell, supra; Hays v. Jefferson County, Kentucky, 668 F.2d 869 (CA 6, 1982), cert. den. 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982); Cook v. Detroit, 125 Mich.App. 724, 337 N.W.2d 277 (1983). The plaintiffs must show an "affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by" the municipality. Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

The liability of the defendant city must be based on more than mere negligence. See Zmija, supra, 119 Mich.App. p. 535, 326 N.W.2d 908. This Court had recognized deliberate indifference as the standard. Id.; Cook v. Detroit, supra, 125 Mich.App. p. 732, 337 N.W.2d 277. Under this standard, plaintiffs must establish that Officer Holman's act was not merely an isolated incident which resulted from the city's negligent failure to supervise or train. Plaintiffs must show that the training or supervision provided by the city was so grossly negligent or inadequate that it amounted to a policy of tacit approval or acquiescence in police misconduct. Cook, supra, p. 732, 337 N.W.2d 277.

The record in this case, however, reveals that plaintiffs failed to present the necessary evidence. Plaintiffs' proof is based solely on the testimony of Officer Holman. Holman testified that he believed he was acting as a police officer when he fired his gun and not as a private citizen. He also testified that departmental policy permitted him to carry his weapon after he had become disabled from active police work. He testified that he believed he was acting in accordance with police procedure when he fired at the fleeing vehicle and that he had not received any specific training regarding the use of deadly force on a fleeing vehicle. However, Holman later admitted that at the time he fired his weapon, he was aware that he was acting contrary to the rules of the department. Those departmental rules combined with Officer Holman's own testimony clearly show that Holman was actually acting contrary to accepted department policy and that Holman was in fact aware of that policy at the time of his action. His acknowledgment that he acted contrary to police policy negates the existence of any "affirmative link" between departmental policy...