PARKER v. DISTRICT OF COLUMBIA

[46] WILLIAMS, Circuit Judge, dissenting:

A seasoned District of Columbia police officer grappled with a bank robbery suspect who was attempting to hijack an innocent woman's car and — as she happened to be in it — kidnap the woman. The suspect slipped from the policeman's grasp and thrust his right hand toward his waistband. The officer drew his service revolver and ordered the suspect to halt. The suspect did not heed the warning; his right hand obscured from view, he turned toward the policeman. The police officer had only a millisecond in which to act. Believing that his life and the life of the innocent woman were in immediate peril, he fired four times in quick succession. The suspect, who had not been armed after all, fell to the ground a paraplegic.

With the benefit of hindsight it is now clear that the officer need not have shot the suspect. But the jury, informed of the officer's vantage point at the time of the shooting, found his actions not unreasonable; it rejected the plaintiff-suspect's assault and battery claim against the District. However, perhaps out of sympathy for the victim, the very same jury found the District liable under 42 U.S.C. § 1983 (1982). § 1983 provides for a damage action against

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . .

Parker's § 1983 theory argued that the District's inadequate training of its police force deprived him of his Fourth Amendment right not to be seized with unreasonable force. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

The District moved for a judgment N.O.V., which the trial court denied. The majority affirms, with an opinion nominally accepting the view that municipalities may be liable under § 1983 for inadequate police training only if the acting officer's violation stemmed directly from municipal policymakers' "deliberate indifference" to such violations. The court's words are equivalent to those employed in other circuits. See, e.g., Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981) (liability may be found where city pursues police training so defective that "the municipality exhibits a deliberate indifference to the resulting violations of a citizen's constitutional rights" (internal quotations omitted)). Its application of the standard, however, drains the words of any constraining force. Accordingly, and fully recognizing that a lengthy dissent based on the probative value of specific evidence "is seldom worth writing or reading," Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1239 (D.C. Cir. 1984) (Scalia, J., dissenting), I must set out my quite different view of the evidence. The majority also dismisses the District's wellfounded objection to the trial court's erroneous charge on the constitutional limits on the use of deadly force. I dissent on that issue as well.

I. BACKGROUND

To support its outcome in this case, the majority paints a distorted portrait of the police officer whose actions are at issue, unnecessarily maligning him in the process. See, e.g., Maj.Op. at 713-14. Although many of the facts surrounding the shooting of Donald Parker are in dispute, Officer William Hayes's record and qualifications are not. A highly-decorated army helicopter pilot and Vietnam combat veteran, Hayes joined the Washington metropolitan police force in 1971. Testimony of Hayes, Tr. 1671-90. In his first six years on the force his duties ranged widely. He worked as an undercover agent infiltrating and investigating the Black Panther Party, and did stints in the homicide, civil disturbance and special operations divisions. Id. at 1690-1715. During his time in special operations he was essentially a member of a SWAT team, id. at 1708, and received intensive training in numerous law enforcement skills, including hostage negotiations, riot control, and disarming armed and dangerous suspects. Id. at 1703-10. His performance on the street was extraordinary. He participated in over 200 arrests, id. at 1711, earned more than a dozen commendations, id. at 1722, and on at least three occasions singlehandedly arrested armed felons, id. at 1722-25. With the exception of the incident central to this case, and of course in practice at the firing range, Hayes never found it necessary to discharge his service revolver. Id.

In 1982 Hayes applied for a position in the District's new repeat offenders project ("ROP"), a special police unit created to focus on suspects who were believed to be committing a disproportionate number of crimes in the District. In April, he was hand-picked from a field of about 500 applicants to be one of 88 ROP operatives. Testimony of Inspector Spurlock, Tr. 1532-35. Before hitting the streets, each ROP officer completed a specially designed, intensive one-week training program.

On the morning of November 15, 1982, Hayes and his partner, Ronnie Lee Motley, were instructed to find out the whereabouts of Donald Parker. Parker was believed to have participated with Charles "Dusty Face" Johnson in an armed robbery of a pharmacy, and there was a warrant out for his arrest. Before starting the search, Hayes checked Parker's file, and learned that Parker had several arrests and prior convictions for, among other offenses, armed robbery and carrying a pistol without a license. Testimony of Hayes, Tr. 1742. Parker was currently on parole for armed robbery of a bank. Id.

After pursuing what turned out to be a bum lead, Officers Hayes and Motley were instructed, by radio, to proceed to the home of a woman who was believed to be Parker's estranged common-law wife to see if she could help them locate Parker. When they arrived at Mrs. Parker's residence in Oxon Hill, a Maryland suburb of the District, the officers attempted to reach their dispatcher, but found that they could not; they were apparently in a "dead spot" — a place where a physical obstruction prevents the transmission of readable radio signals. Testimony of Motley, Tr. 368-71. The officers approached the door and knocked; Mrs. Parker appeared at a window. The officers identified themselves as District police officers. They then asked whether she would be willing to answer a few questions. Without replying, Mrs. Parker withdrew from view. Soon Donald Parker, whom Hayes recognized from his photograph, appeared at the window. The officers once again identified themselves and informed Parker that they were there to investigate a criminal matter involving him. Parker invited the officers in.

Once inside, the officers noticed the presence of two small children. Testimony of Hayes, Tr. 1773-74. Unsure of his extrajurisdictional arrest authority and sensitive to the potential for violence or a hostage situation within the home, Testimony of Hayes, Tr. 1773-74, Hayes told Parker of the outstanding warrant for his arrest and attempted to persuade him to voluntarily accompany them to the station. Parker denied participation in the crime, and refused to accompany the officers unless they could produce a warrant. As the officers were on an investigative mission and had not expected to find and confront Parker, they didn't have the warrant with them. The officers then suggested alternatives: Parker could call an attorney to meet him at the station, id. at 1776, or allow the officers to phone the Prince George's County police to effect the arrest, id. at 1773. But neither option was possible; Parker said his phone was disconnected. Id. at 1776. The police, for their part, refused to leave without their quarry. Stalemate. Eventually Parker agreed to accompany the officers so long as they would first permit him to dress. The officers agreed and allowed him to go to his bedroom. A couple of minutes later, Hayes noticed the dining room curtain move. Id. at 1786. He looked out the window in time to see Parker leap to the ground from his bedroom window ledge. Id. Hayes and Motley ran for the door, and the chase was on.

Hayes later testified that Parker, after being informed that his alleged co-suspect was Dusty Face Johnson, claimed to be on the outs with Dusty Face, having recently shot his alleged accomplice five or six times in a dispute over money. Testimony of Hayes, Tr. 1775.

Motley pursued Parker on foot through a nearby wooded area. Hayes returned to the car and drove it to the spot where Parker and Motley had entered the woods. Parker, having circled back, emerged from the woods and ran, hands waving, towards Hayes' car. Hayes stopped the car and began to open the door. Testimony of Hayes, Tr. 1794. Upon recognizing Hayes as the driver, Parker turned and ran in the opposite direction. Id. at 1795. As Hayes stepped out of his car to give chase, it was rear-ended by a Volvo (driven by Desrine Rainford), Testimony of Motley, Tr. 345; Testimony of Hayes, Tr. 1795, and knocked into a roadside ditch. Parker ran to the driver's side of the Volvo, opened the door, shoved Rainford aside, and leaped into the car, half onto Rainford's lap. Testimony of Rainford, Tr. 889-90, 893; Testimony of Hayes, Tr. 1796.

When Hayes approached the car, he saw Parker's foot near the accelerator and his right hand on the steering wheel. Fearing a hijack and hostage-taking, he ordered Parker to halt. Parker refused, saying "F___ you. I gonna. . . ." Testimony of Hayes, Tr. 1797. Hayes grabbed Parker, lifting him from the automobile. Id. at 1800. But Parker somehow managed to yank himself from Hayes' grasp and put his right foot back in the car. Id. at 1801. When Hayes tried again to extract Parker from the car, he saw Parker's right hand move towards his waistband. Id. at 1805. (Parker may have so gestured because Ms. Rainford had just poured her cup of tea on his crotch. Testimony of Rainford, Tr. 894). Believing that Parker was reaching for a gun, Hayes stepped back and drew his service revolver, yelling "Freeze, Parker, don't do it." Id. at 1803. His right hand still obscured by his body, Parker began to turn toward Hayes. Id. at 1804. Hayes was familiar with Parker's history of weapons offenses and had reason to believe that Parker had shot Dusty Face five or six times over money. Id. at 1805. In the split second in which he had to make a decision, Hayes thought that Parker was armed and that Parker posed an immediate threat to his life and Ms. Rainford's. Id. at 1806. Hayes discharged his revolver four times in quick succession, hitting Parker twice. Parker, who, as it turned out, had not been armed, slumped across the automobile door, staggered a few steps and fell.

One of Hayes' bullets lodged in Parker's spine. As a result of the shooting Parker is now a paraplegic. It is clear, in retrospect, that neither Rainford's nor Hayes' life was in imminent peril. Parker was needlessly crippled. The question before this court, however, is not whether Hayes actually needed to shoot Parker. Rather, the issues are first, whether the jury was properly instructed, and second, whether even a properly instructed jury could reasonably find that the District pursued a police training program so defective as to manifest "deliberate indifference" to the risk of constitutional violations by its police force, and that such defects caused Parker's injury.

This dissent will first analyze the error in jury instructions. It will then review the origins of the "deliberate indifference" standard and the reasons for drawing a rigorous distinction between it and mere negligence. Finally, it will review the evidence in light of that standard.

II. ERRORS IN THE JURY INSTRUCTION

To find the District liable under § 1983, the jury had first to find that Hayes violated Parker's Fourth Amendment right to be free of unreasonable seizures. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Parker introduced expert testimony that it is unreasonable for an officer to shoot until he has actually seen a weapon. Although this testimony was properly before the jury in reference to Parker's common-law claims, McLaren's concept of acceptable police conduct conflicts with and is more stringent than the governing Fourth Amendment standard. In Garner, the Court held that it is not unreasonable for a police officer to use deadly force when he "has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." 471 U.S. at 11, 105 S.Ct. at 1701. Regardless of its relative merits as a matter of police policy, McLaren's standard is clearly more demanding than the Supreme Court's test; it makes actual sight of the weapon essential and thus precludes any reliance on circumstantial evidence. Thus the jury could not properly consider McLaren's standard in its decision as to whether Hayes violated Parker's Fourth Amendment rights.

To prevent the jury from adopting McLaren's standard as its constitutional benchmark, the District requested the district court to instruct the jury in terms of Garner's definition of constitutionally permissible use of deadly force. Before the court charged the jury, the District's counsel reviewed Judge Green's proposed instructions and requested that she add "at least the second paragraph of [its] proposed instruction No. 4." Tr. 2196. This paragraph reads, in part, as follows: "Under the fourth amendment, it is constitutional for a police officer to use deadly force in apprehending a suspect, if he has probable cause, that is a reasonable belief that the suspect poses a threat of serious physical harm, either to the officer or to others." Judge Green noted the District's objection to the existing instructions, but refused to so alter them. Tr. 2196-97. In view of the drastic gap between the law under Garner and McLaren's testimony, as well as the confusion manifested by the jury's inconsistent verdicts (see p. 728 n. 3 below), the error was far from harmless.

The majority dismisses the error with the claim that the District "failed to adhere to Rule 51 . . . [when] it neglected to state distinctly its specific objections to Judge Green's charge before the jury retired to deliberate." Maj.Op. at 715. But in fact Judge Green explicitly stated, just before the jury retired, that the parties should state only new objections to the instructions as given, as she considered the objections made in the previous day's colloquy already preserved for the record. Tr. 2230-31. I cannot grasp why the court now faults the District for having refrained from a repetition that would have defied the judge's instructions and likely have been contemptuous. To do so is not to preserve orderly trial procedures but to invite their disruption.

As the jury may well have found the predicate constitutional violation using an invalid standard, its § 1983 verdict should not stand.

The instructions included a second critical error, this one on the standard applicable to the District itself:

The burden is on the plaintiff, Don Parker, to establish by a preponderance of the evidence that the District of Columbia failed adequately to train, supervise and discipline Officers Hayes and Motley and that this failure constitutes gross reckless and gross indifference to the civil rights of Mr. Parker in that such inadequate training, supervision and discipline would involve a risk of harm to others.

Tr. 2222 (emphasis added). The italicized portion of this instruction implies that a finding of gross recklessness or gross indifference is called for once the jury determines that the training was "inadequate" in any way that would "involve a risk to others." Not even an "unreasonable risk!" This suggested a standard even lower than one of common-law negligence, essentially one of strict liability. Such low-level "inadequacies" plainly do not reflect the "deliberate indifference" to constitutional violations that all members of the panel agree is the correct standard (explained in detail in part III).

Had the District properly objected to this conception of § 1983 liability and then raised the matter before us, it would require reversal. Had it merely raised the matter for the first time on appeal, I would find plain error. Cf. Anderson v. Group Hospitalization, Inc., 820 F.2d 465, 469 n. 1 (D.C. Cir. 1987) (acknowledging uncertainty as to whether this circuit recognizes the "plain error" doctrine in civil cases). In fact it did neither. Although Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983), wisely counsels that we should normally not address unbriefed issues, it does so on the premise that we would otherwise be deprived "of that assistance of counsel which the system assumes." Id. As we need no such assistance on the point, I think it an independent ground of reversal.

In any event, the Garner error calls for reversal of the judgment and remand for a new trial.

III. THE "DELIBERATE INDIFFERENCE" STANDARD

As the majority and I agree that a municipality should be liable under § 1983 for unconstitutional acts resulting from inadequate police training only if its training policies reflect "deliberate indifference" to those violations, it may seem pointless to argue the legal standard. But it is facts that give words their meaning. In China after Mao, it is said that many parroted the slogan attributing the country's ills to the "Gang of Four," but simultaneously held up a hand with five fingers outstretched — an extra one for the Great Helmsman himself. Here the majority talks deliberate indifference, but I can fathom their belief that the facts satisfy that standard only as a product of their reluctance to acknowledge the policies restricting municipal liability under § 1983. I write to underscore the force of those policies and the reasoning behind the requirement of deliberate indifference.

In Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that cities and other local governing bodies are "persons" subject to liability under § 1983, overruling its decision to the contrary in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). But it explicitly rejected the idea of vicarious municipal liability. Id. at 690-95, 98 S.Ct. at 2035-38. Rather, the Court accepted liability only where "execution of a government's policy or custom . . . inflicts the injury," id. at 694, 98 S.Ct. at 2037-38, or (in a formulation seemingly intended as identical) where "official policy" has been "the moving force of the constitutional violation," id.; see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n. 8, 105 S.Ct. 2427, 2436 n. 8, 85 L.Ed.2d 791 (1985) (reiterating the "moving force" metaphor and condemning "loose language in the charge leaving it to the jury to determine whether the alleged inadequate training would likely lead to `police misconduct'"); Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981).

For reasons that will soon be apparent, § 1983 liability for egregiously defective police training is compatible with Monell's requirement of a municipal policy; the other circuits facing the issue since Monell have so found. The majority's statement of the law appears to coincide with their views. Under this consensus, a municipality's inadequate training of police can give rise to liability under § 1983 if (1) the training is so grossly negligent or reckless as to reflect deliberate indifference to the constitutional violations that will inevitably result, and (2) the inadequate training is the moving force behind a violation of a plaintiff's constitutional rights. See cases cited at Maj.Op. at 712; see also Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.) ("so reckless or grossly negligent that future police misconduct is almost inevitable . . ., or would properly be characterized as substantially certain to result") (citations omitted), cert. denied, 459 U.S. 833, 103 S.Ct. 75, 74 L.Ed.2d 73 (1982); Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981) (deliberate indifference or tacit authorization); McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir. 1981) (simple negligence not sufficient), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed. 2d 856 (1982).

Liability for deliberate indifference serves as a backstop to liability for explicit municipal authorization of § 1983 violations. Without it, municipal policymakers could wink at rampant police misconduct but keep the municipal treasury safe. Of course where plaintiffs could prove the wink, the resulting violations would be chargeable to the city as explicit policy. But proof of a wink may fail for no fault of the plaintiff, and on a strong enough record the fact-finder should be able to infer tacit complicity.

Grounding liability for deliberate indifference in a backstop function finds support in Monell's discussion of the inclusion in § 1983 of "customs" and "usages" among the state prescriptions under "color" of which the forbidden deprivation may occur. The Court quoted Justice Harlan's point in 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 custom and usage were included "because of the persistent and widespread discriminatory practices of state officials. . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a `custom or usage' with the force of law." See Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Just as including state involvement through discriminatory practice prevents evasion through, as it were, government body language, so liability for deliberate indifference prevents evasion through a calculated municipal failure to cure training defects with a high and obvious probability of generating excessive constitutional violations.

The backstop role surely requires no more expansive a standard than that of deliberate indifference. The question remains whether a reasonable construction of § 1983 and Monell suggests more. Of course Congress's main target in adopting the predecessor of § 1983 was the Klansmen's brutalization of the freedmen. Although Congress obviously provided a remedy against broader evils, cf. Monell, 436 U.S. at 683, 98 S.Ct. at 2032, it would be startling to find it evolve into a basis for federalizing (and judicializing) the complex political issue of how to reduce the imperfections of municipal government.

The Court's language in Monell appears to refer only to policy decisions that can be linked by intention to the resulting constitutional violations. The Court held, per Justice Brennan, that "[l]ocal governing bodies . . . can be sued directly under § 1983 . . . where . . . the action that is alleged to be unconstitutional implements or executes" a governmental policy. 436 U.S. at 690, 98 S.Ct. at 2035-36 (emphasis added). The words "implement" and "execute" surely connote a direct and intentional link between the policy and the unconstitutional outcome. Police officers' constitutional infringements do not "implement" or "execute" a sloppy training policy. Cf. Pembaur v. City of Cincinnati, 475 U.S. 469, 482 n. 11, 106 S.Ct. 1292, 1299 n. 11, 89 L.Ed.2d 452 (1986) (noting that both the plurality and concurrence in Tuttle "found plaintiff's submission inadequate because she failed to establish that the unconstitutional act was taken pursuant to a municipal policy" (emphasis in original)).

Certainly the subsequent opinions of the justices provide little support for any more expansive liability. The Court came closest to addressing the issue explicitly in City of Springfield v. Kibbe, 480 U.S. 257, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987), but a five-justice majority (Justices Brennan, Marshall, Blackmun, Stevens and Scalia) dismissed the writ as improvidently granted; the defendant city's petition for certiorari had not objected to the jury instruction permitting liability on the basis of gross negligence. Those who dissented evidently regarded that instruction as too lax. Writing for herself and Chief Justice Rehnquist and Justices White and Powell, Justice O'Connor took the position that "`inadequacy' of police training may serve as the basis for § 1983 liability only where the failure to train amounts to a reckless disregard for or deliberate indifference to the rights of persons within the city's domain." 107 S.Ct. at 1121 (O'Connor, J., dissenting).

The Kibbe dissenters identified an inherent hazard in imposing § 1983 liability for municipal policies that do not compel a constitutional violation. Because of the confusion arising from intervening causes, even a nominally stringent causation requirement could not prevent damage judgments based on illegitimate jury conjecture:

[A]t the time of the officers' alleged misconduct, any number of other factors [may have also been] in operation that were equally likely to contribute or play a predominant part in bringing about the constitutional injury: the disposition of the individual officers, the extent of their experience with similar incidents, . . . and so forth. To conclude, in a particular instance, that omissions in a municipal training program constituted the `moving force' in bringing about the officer's unconstitutional conduct, notwithstanding the large number of intervening causes also at work up to the time of the constitutional harm, appears to be largely a matter of speculation and conjecture.

480 U.S. 257, 107 S.Ct. 1114, 1120-21, 94 L.Ed.2d 293 (1987).

But the expressions of the justices composing the Kibbe majority hardly suggest a readiness to find liability much more readily. As we have noted already, Justice Brennan's opinion for the Court in Monell itself found liability where an unconstitutional act "implements or executes" municipal policy, language strongly suggesting deliberate intent. He also noted that some congressional supporters of § 1983 had made clear that they intended the Act to reach situations where "officers of the State were deliberately indifferent to the rights of black citizens." 436 U.S. at 685-86 n. 45, 98 S.Ct. at 2033 n. 45 (emphasis added). In City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), where the majority overturned a judgment against a municipality because the charge allowed the jury to infer "`gross negligence' or `deliberate indifference'" from a non-policymaker's single excessive use of force, id. at 821, 105 S.Ct. at 2435, he concurred, and, writing for himself and Justices Marshall and Blackmun, observed that the plaintiff "bore the burden . . . of proving" that his injuries resulted from "`conscious choices' . . . made by the city concerning police training and supervision," id. at 829-30 n. 4, 105 S.Ct. at 2439 n. 4 (internal citation omitted). In Tuttle, moreover, Justice Brennan explicitly rejected mere "but for" causality, invoking at least the limiting principles of tort law. Tuttle, 471 U.S. at 833 n. 8, 105 S.Ct. at 2441 n. 8. Finally, in Part II-B of his opinion in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), concurred in by Justices White, Marshall and Blackmun, he wrote that

Justice Stevens has consistently rejected Monell's refusal to allow liability under respondeat superior. See, e.g., City of Oklahoma City v. Tuttle, 471 U.S. at 834-44, 105 S.Ct. at 2441-47 (Stevens, J., dissenting).

municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.

Id. at 483-84, 106 S.Ct. at 1300. See also George D. Brown, Municipal Liability Under Section 1983 and the Ambiguities of Burger Court Federalism: A Comment on City of Oklahoma City v. Tuttle and Pembaur v. City of Cincinnati — the "Official Policy" Cases, 27 B.C.L.Rev. 883, 901 (1986).

In all candor, Justice Brennan's requirement of "conscious choice" is susceptible of a very expansive reading. He refers to specific municipal choices on police training, including not only issues going to the content of police courses ("when to shoot to kill"), but also such neutral issues as "how much time and emphasis [should] be placed on training in such matters as how to approach felony-in-progress situations." Tuttle, 471 U.S. at 829-30 n. 4, 105 S.Ct. at 2439 n. 4 (Brennan, J., concurring). But this list appears simply to have been identified by plaintiff. Id. at 829 n. 4, 105 S.Ct. at 2439 n. 4. Justice Brennan cannot be described as committed to the view that neutral municipal police training decisions, short of unleashing officers manifestly incapable of observing constitutional norms, would trigger liability.

Court decisions in closely related areas also warn strongly against imposition of § 1983 liability for misjudgments that at most increase the risk of constitutional violations. In Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the district court had issued an injunction against municipal officers merely upon a showing of an "unacceptably high" number of unconstitutional acts by their subordinates, id. at 373, 96 S.Ct. at 605, arguably caused by a departmental "tendency to discourage the filing of civilian complaints and to minimize the consequences of police misconduct," id. at 368-69, 96 S.Ct. at 603. The Court refused to countenance this judicial intervention. It contrasted these facts with those of the decision principally relied on by the district court, Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), in which "liability and injunctive relief were grounded [on] the adoption and enforcement of deliberate policies by the defendants there . . . of excluding and removing the plaintiff's labor organizers and forbidding peaceful communication of their views to the citizens of Jersey City." Id. at 374, 96 S.Ct. at 605. In Rizzo, by contrast, there was no showing that the "behavior of the Philadelphia police was different in kind or degree from that which exists elsewhere." Id. at 375, 96 S.Ct. at 606. The Court found that "[n]othing in Hague . . ., or any other case from this Court, supports such an open-ended construction of § 1983." Id. at 373-74, 96 S.Ct. at 605. Although Rizzo rested in part on a concern for the ill effects of injunctive intervention in the management of municipal police, it is hard to see that intervention through the imposition of large damage judgments would be materially less intrusive.

In the definition of Due Process, too, the Court has recently rejected the use of federal constitutional norms to supplant state policy on governmental negligence. In Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), it held that prison custodians' "lack of due care," far from being an "abuse of power" cognizable under the Due Process Clause of the Fourteenth Amendment, "suggests no more than a failure to measure up to the conduct of a reasonable person." Id. at 332, 106 S.Ct. at 665. See also Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986) (refusing to find Due Process Clause liability under similar facts, even though state law immunities barred plaintiff from any state remedy; "lack of care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent"). The context is of course distinguishable; the Court addressed individual liability for violations of the Constitution's most open-ended provision and expressly left open the possibility that mere negligence might in some cases subject individuals to § 1983 liability under other provisions. Daniels v. Williams, 474 U.S. at 334, 106 S.Ct. at 666. Indeed, for a claim such as Parker's, that the use of unreasonable force made an arrest illegal under the Fourth Amendment, individual liability turns on "an objective standard of reasonableness . . . determined by balancing the infringement of the individual's interest caused by the police action against the governmental interest served." Martin v. Malhoyt, 830 F.2d 237, 261 (D.C. Cir. 1987) (§ 1983 action in which court applies standard set forth in Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985)). But nothing in Monell suggests any reason to suppose the Court intended the sort of close federal judicial control of municipal policy implicit in a rule of liability for a city's negligence in failing to prevent its officers' unconstitutional acts (whatever state-of-mind may be required for their liability).

As the majority notes, a Supreme Court analysis of municipal liability for inadequate police training under § 1983 appears imminent. See City of Canton v. Harris, 798 F.2d 1414 (6th Cir. 1986), cert. granted, ___ U.S. ___, 108 S.Ct. 1105, 99 L.Ed.2d 267 (1988). The majority and I agree on "deliberate indifference" as the operative words of the likely formula. But one's perception of the force of a definition may depend on his sense both of the difficulty of defining a causal link and of the need for a sharp line between municipal negligence and actions so "abusive" as to invoke the majesty of federal constitutional intervention. Under Monell itself, illuminated by such decisions as Rizzo and Daniels, I think liability can be found only on a showing that municipal policymakers would have thought to themselves: "Yes, we recognize that our police training decisions are bound to generate an exceptionally high number of constitutional violations, but that's just tough." Parker made no such showing here. If the courts are not to federalize much of municipal government policy the courts of appeal must seriously police the border between garden-variety snafus and truly deliberate indifference to low-echelon constitutional violations.

IV. APPLICATION OF THE STANDARD TO THE EVIDENCE

In reviewing the District's claims on appeal, we must of course accord the jury great deference, and uphold its verdict unless

`there can be but one reasonable conclusion,' drawn from the evidence viewed `in the light most favorable to the plaintiff . . ., giving [him] the advantage of every fair and reasonable inference that the evidence may justify.'

Metrocare v. WMATA, 679 F.2d 922, 924-25 (D.C. Cir. 1982), quoting Foster v. Maryland State Savings and Loan Ass'n, 590 F.2d 928, 930 (D.C. Cir. 1978), cert. denied, 439 U.S. 1071, 99 S.Ct. 842, 59 L.Ed.2d 37 (1979). Our review proceeds, however, without deference to the trial court's denial of the motion for judgment N.O.V. McNeal v. Hi-Lo Powered Scaffolding, Inc., 836 F.2d 637, 641 (D.C. Cir. 1988). Upholding the verdict below requires the court to decide that a reasonable jury could have concluded that the District's training policies manifested deliberate indifference to any enhanced likelihood of causing constitutional violations and that the alleged deficiencies were the moving force behind the alleged violation. Because of errors in the district court's instructions it is not at all evident that this jury did so find. See part II above. I believe that even with proper instructions, a reasonable jury could not so find. I would reverse.

One further preliminary comment: Many circuits refuse to uphold a finding of deliberate indifference unless the plaintiff can demonstrate a pattern of violations, predating the instant violation, that should have put the municipality on notice that its training policies were dangerously inadequate. See, e.g., Spell v. McDaniel, 824 F.2d 1380, 1387 (4th Cir. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988); Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir. 1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984); Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir. 1981); McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir. 1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982); cf. Rizzo v. Goode, 423 U.S. 362, 373-77, 96 S.Ct. 598, 605-07 (in overturning injunction against city officials based on alleged violations by their subordinates, Court relies on absence of any pattern of violations). But see Grandstaff v. City of Borger, 767 F.2d 161, 170-71 (5th Cir. 1985) (proof of multiple incidents of misconduct on night of the incident may indicate that the policemen knew at the time that their actions would "meet with the approval of city policymakers"), cert. denied, ___ U.S. ___, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987); Kibbe v. City of Springfield, 777 F.2d 801, 807-08 (1st Cir. 1985) (similar), cert. granted, 475 U.S. 1064, 106 S.Ct. 1374, 89 L.Ed.2d 600 (1986), cert. dismissed, 480 U.S. 257, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987). I will assume, arguendo, the laxer view — that on some imaginable facts one might find deliberate indifference without a pattern of prior similar conduct.

In order to prevail, Parker had to establish a defect in the District's training program, the requisite state of mind in municipal policymakers with respect to that defect, and a strong causal link between that defect and his constitutional injury. Each alleged training inadequacy must stand on its own. We cannot find the requisite links by combining distinct liability theories in a vague § 1983 goulash. To do so would render the concept of deliberate indifference meaningless and trivialize the causation requirement.

Parker argued five theories to support his § 1983 claim. I address them seriatim.

1. Extrajurisdictional training. Parker attempted to show that the District inadequately trained its officers as to proper extrajurisdictional arrest procedures and as to their extrajurisdictional arrest authority. A critical aspect of their alleged inadequacy, as the majority opinion's summary makes clear, see Maj.Op. at 713, was that it understated the officers' extraterritorial authority. Had the officers been properly trained as to their authority to make extraterritorial arrests, Parker argues, they would have simply and promptly arrested him. Appellee's Brief at 35-36. (District police officers with probable cause to believe someone has created a felony may make a citizen's arrest in Maryland. See Stevenson v. State, 287 Md. 504, 413 A.2d 1340, 1346 (1980).) Had they done so, he would not have been made nervous by the drawn-out stalemate, would not have attempted to flee, would not have attempted to hijack a stranger's car, and thus would not have been shot.

Of course it is quite true that the officers' ignorance of their full authority played a role in creating the awkward standoff. But it seems unprecedented to suggest that the issuance of instructions understating officers' authority could manifest deliberate indifference to the constitutional violations that might very indirectly result. On this remarkable theory it is as risky for a municipality to pursue a Milquetoast's strategy as a Rambo's. Parker of course introduced no evidence of a pattern of similar incidents or of any other circumstances that would have alerted District policymakers to the risk that such a knowledge gap carried a special risk of causing constitutional violations. I cannot perceive a basis for inferring the requisite deliberate indifference.

Further, Parker utterly failed to show the necessary causal link. At best, he has demonstrated "but for" causation. This is plainly not enough. See Tuttle, 471 U.S. at 833 n. 9, 105 S.Ct. at 2441 n. 9 (Brennan, J., concurring). Parker's theory minimizes the significance of intervening events and ignores the autonomy of the various players. It depends on the following causal chain: The District's inadequate training program left the officers confused as to their extrajurisdictional arrest authority, which created a tense atmosphere in the Parker home, which made Parker nervous and led him to attempt escape through his bedroom window, which resulted in a chase through the neighboring woods, which led to a confrontation between Parker and Hayes on the street which prompted Parker to attempt to hijack Desrine Rainford's car, which led Rainford to dump her tea on his lap, which caused Parker to reach his hand towards his pants while he was struggling with Hayes, which gave Hayes the impression that Parker was reaching for a gun, which caused Hayes to shoot him. This out- Palsgrafs Palsgraf. On such a theory, the want of a nail was "the moving force" behind the kingdom's loss.

Cameron v. City of Pontiac, 813 F.2d 782 (6th Cir. 1987), properly rejected a similarly tenuous causal link. There policemen chased and shot at a fleeing suspect who, in an effort to escape, jumped a fence and sprinted onto a highway, where he was struck and killed by a passing truck. The court found that the policemen's use of deadly force "was not, as a matter of law, the proximate cause of [Cameron's] death." Id. at 786. Here, the District's training decisions were far less proximately connected to the ultimate shooting. (The majority seeks to distinguish Cameron on the ground that here Hayes' shooting was clearly the proximate cause of Parker's injury.) Maj.Op. at 715. But that is not in question. Parker's problem was to show that flaws in the District's extrajurisdictional training policies were the moving force behind the shooting.

2. Adequate warning. Parker attempted to demonstrate that Hayes' warning to him — "Freeze, Parker, don't do it" — was dangerously imprecise. Even assuming it was negligent of Hayes not to use an affirmative command, like "Put your hands over your head," Parker introduced no evidence as to the District's policy on how officers should warn potentially armed suspects. The jury was not free to infer a municipal policy from a single episode. City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Nor do I believe one can find deliberate indifference to constitutional rights in the District's going the "wrong" way — if it is wrong — on such a subtle point of police procedure.

3. Fitness training. Parker argued at trial that the District was grossly reckless in not establishing minimum physical fitness standards for officers in its ROP unit. He claimed that had the District paid heed to fitness it would not have selected Hayes to be on the squad, and that if Hayes had been in reasonable shape he would have been able to handle the arrest without using his revolver.

Whatever the District's actual policies on the fitness of ROP officers, Hayes appears to have been in fine shape. To be sure, Parker did present some testimony as to Hayes' fitness during various time periods considerably prior to November 1982. He established (1) that in 1977 Hayes was unable to continue his SWAT team duties because he had developed a heart condition, pericarditis, (2) that Hayes had received a few citations for being overweight sometime between 1977 and 1982, and (3) that Hayes had suffered a hairline fracture of his right shoulder in July 1982.

While these may be interesting historical facts, none suggests any defect in Hayes' physical condition at the time of the shooting. By 1979 Hayes had recovered from his pericarditis well enough to resume extracurricular physical activities. He jogged a couple of miles each day, worked-out in his free time, and participated in martial arts courses and casual athletics. Testimony of Hayes, Tr. at 239. When he applied to join the ROP in 1982, he felt entirely fit for active duty. Id. at 1730, 1733.

Hayes did indeed suffer a hairline fracture in July 1982 when another vehicle struck his patrol car. Id. at 1734-35. On account of that injury his superiors temporarily relieved him of active duty. Id. at 257. By September, however, two months before the present episode, he had recovered fully and was certified as fit by the Board of Surgeons at the Police and Fire Clinic. Testimony of Inspector Spurlock, Tr. 1559; Testimony of Hayes, Tr. 1736. He resumed his duties on the ROP. There, because of his size and strength, he was often designated the "ram person;" i.e., the officer who, when necessary, knocks down barricaded doors to facilitate police entry. Testimony of Inspector Spurlock, Tr. 1559. There is simply no basis for the canard that Hayes was "not in adequate physical shape." Cf. Maj.Op. at 713.

Further, the record contains no support for any finding that the District was deliberately indifferent to the danger posed by its failure to set minimum fitness standards. The only evidence bearing on the District's frame of mind was the testimony of Assistant U.S. Attorney Bowman, one of the founders of the ROP, who admitted that physical fitness probably ought to have been taken into account in officer selection. He attributed the oversight to the planners' assumption that most of the officers' surveillance would be by car. Tr. at 1334. This falls far short of deliberate indifference.

Finally, Parker presented no evidence whatsoever to support the thesis that any possible gap between Hayes' physique and Charles Atlas's was the moving force behind Hayes's failure to subdue him by hand. Acceptance of liability on this theory invites reliance on precisely the sort of rampant speculation and conjecture against which Justice O'Connor warned. See p. 722 above.

4. Disarmament training. Parker asserts that if Hayes had received adequate disarmament training he would have been able to subdue Parker physically, and would not have shot him. Parker organizes his support for this theory carefully, but the resulting structure is rickety indeed. He points to (1) expert testimony that Hayes should have been able to use conventional law-enforcement techniques to remove Parker from the car and render him harmless. Testimony of Bates, Tr. 282; (2) Hayes's deposition statement that his formal training in "hand-to-hand" combat — consisting of two 30-minute sessions in 1972 — had been "next to nothing," Tr. 233; and (3) an expert's opinion that if the District had provided its police officers with only one hour of physical disarmament training, that would have been inadequate. Testimony of McLaren, Tr. 693. All this is not remotely up to the task.

At no time did Parker's experts in fact review or analyse the District's training policy, much less assess it as inadequate. The main expert, Roy McLaren, testified only that if Hayes had received only two 30-minute sessions in disarming tactics, that would have been inadequate. Tr. 693.

The hypothesis was palpably false. It was founded solely on Hayes' reference to 60 minutes of police training in "hand-to-hand combat." But these 60 minutes were incontestably a small part of Hayes's overall training — the part consisting of formal training in how to attempt to physically subdue an attacker who has drawn a knife or gun. Testimony of Hayes, Tr. 234-35. The District presented undisputed evidence of continuous training: reviews at roll call of specific episodes and on-the-job disarmament training. Testimony of Hayes, Tr. 235-36; Testimony of Inspector Spurlock, Tr. 1516, 1529-30; see also Testimony of Murphy, Tr. 1942-43 (training provided by the District exceeds that furnished by most other jurisdictions).

In fact the District did not encourage policemen to use bare hands to physically disarm gun- or knife-wielding assailants. In view of the high risks of such activity, it treated martial arts training as supplemental, as providing a resource to be tried only as a last resort if for some reason an officer could not use the threat implicit in his service revolver. Testimony of Hayes. Tr. 234-35. (Had the District emphasized such training, Parker would likely be arguing that it led to the fatal shooting: as a result of such emphasis, Hayes used grappling techniques instead of immediately drawing his revolver and telling Parker to put his hands up.)

Parker's experts evaluated only an incomplete portion of the District's training policy; they never came to grips with the policy issue of how much to stress hand-to-hand combat; and they provided no basis at all for a judgment that the District's downplaying of such techniques could be reasonably attributed to deliberate indifference to constitutional violations.

5. Use of Deadly Force. The District's policy was to instruct its officers to use deadly force only as a last resort: to save their lives or the lives of innocent persons, or to prevent the escape of a violent felon. Testimony of Inspector Spurlock, Tr. 1513-14; Testimony of Hayes, Tr. 1696-97. Hayes, believing that both his life and Desrine Rainford's were in danger, id. at 1806, fired before seeing an actual weapon.

Parker contends that if Hayes had been properly instructed he would have held his fire until he had actually seen a weapon, and his experts so testified. But it is the Supreme Court, not Parker's expert testimony, that defines when a police officer may constitutionally shoot. The Court in Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985), held that "[w]here [an] officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." It explicitly approved of police department policies that "allowed the firing of a weapon only when a felon presented a threat of death or serious bodily harm." Id. at 18-19, 105 S.Ct. at 1705. As the District's policy complies with, and is practically identical to, this standard, the jury was not free to decide that the experts' suggested policy was more to its taste.

Apparently conceding that Parker's attack on the district's "official policy" may be blocked by Garner, the majority hints that the jury could have found that the District's actual policy was less restrictive than the apparent official one. Maj.Op. at 715. But the facts do not support the hint. The District presented evidence to substantiate its claim that its officers were indoctrinated in its official policy. Testimony of Inspector Spurlock, Tr. 1508-13. Hayes testified that he knew and understood that policy. Tr. 1696-97. Parker introduced no evidence supporting the existence of an alternative "actual" policy.

Of course, the jury could have found that when Hayes fired he could not have reasonably believed that he or Ms. Rainford was in danger. Perhaps it leapt from this to a belief that the District trained its policemen to shoot prematurely. But City of Oklahoma City v. Tuttle, 471 U.S. 808, 821, 105 S.Ct. 2427, 2435, 85 L.Ed.2d 791 (1985), plainly forbids the fact-finder to infer a municipal policy from a single action of a non-policy-making employee.

There is a second possibility. Theodore Carr, Assistant Police Chief of the District of Columbia, conducted an official review of Hayes's conduct in the shooting. He determined that Hayes's decision to fire was not justified by the actual danger posed, and he recommended that Hayes be fined and recycled through the firearms training course. Tr. 917-20; Plaintiff's Exhibit 40, 2 Joint Appendix (J.A.) E-4 — E-8. Although Chief of Police Turner initially agreed with this assessment of the facts, he later set aside the fine, Tr. 923-24, and Hayes was never put through a firearms retraining program as a consequence of the shooting. Id. at 1618. The majority treats the nullification of the fine and failure to retrain as "a telling example" of the inadequacies of the District's discipline and supervision, Maj.Op. at 714, possibly viewing it as evidencing a de facto policy in conflict with the official one.

With all respect, the episode tells very little. The department's reprieve appears to have turned on an analysis of Hayes's statements as to what he perceived. See Plaintiff's Exhibit 40, 2 J.A. E-4 — E-8. Carr and Turner, as reasonable students of the record, could have reached different appraisals.

Of course one can imagine police conduct so egregious that superiors' complaisance could at least be powerful evidence of a preexisting policy. See Kibbe v. City of Springfield, 777 F.2d 801, 806 (1st Cir. 1985), cert. granted, 475 U.S. 1064, 106 S.Ct. 1374, 89 L.Ed.2d 600 (1986), cert. dismissed, 480 U.S. 257, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987); Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985), cert. denied, ___ U.S. ___, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987). But this is plainly no such case. It is true that to find a violation of Parker's Fourth Amendment rights, the jury had to conclude that Parker was the victim of an unreasonable seizure. But the jury's exoneration of the District on the assault and battery claim entailed the opposite finding — that Hayes had not used unreasonable force under the circumstances. Jury Instructions, Tr. 2220. In response to the district's motion for J.N. O.V., the district court sought to reconcile these findings by suggesting that the jury might have found the shooting unreasonable in an absolute sense, but Hayes' actions reasonable given his lack of adequate training. Parker v. Hayes, C.A. No. 83-3382 (D.D.C. Jan. 29, 1987) (Mem.Op.) at 6-7 n. 5. Whatever credence one may give this imaginative reconstruction, it seems plain that the jury did not regard Hayes's conduct as so egregious that it could infer deliberate indifference from the District's ultimate judgment call that he should not be penalized. As the jury clearly did not regard it as obvious that Hayes had used unreasonable force, his chiefs' similar judgment cannot be evidence of a preexisting policy of countenancing constitutional violations.

The court's refusal to grant a judgment N.O.V. based on the inconsistency of the jury's verdicts is not before us as an independent claim of error, but it seems plain that the district court's attempted reconciliation presupposes far more refined notions of tort law than exist. While a police officer may be judged as "a reasonable police officer" rather than as a "reasonable person," there is simply no precedent for use of an ultra-subjective standard considering "a reasonable police officer with the specific amount of training this officer received." In any event, it seems fanciful to believe that the jury would, without aid from court or counsel, invent this distinction between § 1983 and common law liability standards. In fact, so far as reasonableness was concerned, the jury instructions for assault and battery were almost identical to those tendered for the § 1983 claim. Compare Tr. 2220 ("If you find that the use of that force used by Officer Hayes was unreasonable or excessive under the circumstances, you shall find the District of Columbia liable for assault and battery") with Tr. 2223 (to establish a constitutional violation on which to base his § 1983 claim, Parker must prove that he was injured "as a result of the unnecessary and unreasonable use of force by Officer Hayes"). Whatever affirmative defense Hayes's lack of training might have afforded on the common law claim, no such theory was argued and no instruction to that effect was tendered to the jury.
In its opinion, the district court attempts to distinguish this case from City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). See Mem.Op. at 5-6. With all due respect, in so far as Heller is relevant to this case, it is on all fours. In Heller, also a § 1983 case, a jury had found the defendant police officer's actions not unreasonable and the officer not liable in the first half of a bifurcated trial. As the jury's finding eliminated the requisite constitutional infraction, the district court dismissed the action against the municipality as well and canceled the second half of the proceedings. The court of appeals reversed, holding that the verdict in favor of the policeman did not preclude a verdict against the city on an inadequate training theory. Heller v. Bushey, 759 F.2d 1371, 1373-74 (9th Cir. 1985). It found, in an argument almost identical to that made by the district court here, "that the jury could have believed that [the policeman], having followed Police Department regulations, was entitled in substance to a defense of good faith." Id. at 1373. The Supreme Court, on appeal, disagreed. Because the jury was not charged on any good faith affirmative defense theory, the court of appeals could not employ such a theory to discount the verdict of exoneration. City of Los Angeles v. Heller, 475 U.S. at 798-99, 106 S.Ct. at 1572-73.

* * *

Running a police department raises a variety of hard policy issues. The District may not have resolved each of these perfectly. But even if we assume training errors and a sufficient causal link between them and Parker's injury, there is simply no evidence — from a pattern of excessive constitutional violations or anything else — from which a jury could reasonably infer that its decisions reflected deliberate indifference to increased risks of such violations. The judgment N.O.V. ought to have been granted.

Even if there were sufficient evidence, the district court's failure to give the properly requested Garner charge was error and would require remand for a new trial.