United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-2079

___________________________

Sylvia Perkins, as aPersonalRepresentative oftheEstate ofBobbyMoore,III, deceased

lllllllllllllllllllllPlaintiff - Appellant

v.

Joshua Hastings, in his individual and official capacities; Stuart Thomas, in his

individual and official capacities; Little Rock, City of, a municipality

lllllllllllllllllllllDefendants - Appellees

____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

____________

Submitted: April 12, 2018

Filed: February 7, 2019

____________

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

____________

WOLLMAN, Circuit Judge.

Little Rock, Arkansas, Police Officer Joshua Hastings shot and killed fifteenyear-old Bobby Moore III, on August 12, 2012. Moore’s mother, Sylvia Perkins,

acting as a personal representative of his estate, filed suit against Officer Hastings,

Police Chief Stuart Thomas, and the City of Little Rock, alleging claims under 42
U.S.C. § 1983 and state law. The district court

1

granted summary judgment in favor

of Thomas and the City, and the case against Hastings proceeded to trial. A jury

found that Hastings had violated Moore’s Fourth Amendment right to be free from

excessive force and returned a verdict in favor of Perkins. After final judgment was

entered, Perkins appealed, challenging the summary judgment order. We affirm.

I. Background

Hastings applied for a position with the Little Rock Police Department in May

2006. Before being hired, Hastings submitted to a polygraph examination, during

which he admitted that he had attended a Ku Klux Klan meeting when he was a junior

in high school. In a statement, Hastings explained that he snuck into the meeting with

two friends to “see what [his friend’s] grandpa does.”

A hiring committee approved Hastings for hire by a vote of three-to-one. The

committee was composed ofChief Thomas, a white male who had served twenty-nine

years with the Little Rock Police Department, and three other high-ranking officers,

all of whom had served more than twenty years on the police force. The lieutenant

who cast the negative vote stated that Hastings’s attendance at a Ku Klux Klan

meeting disqualified him from serving with the Little Rock Police Department. In a

memo to his captain, the lieutenant wrote that he had “serious reservations regarding

[Hastings’s]judgment and maturity” and thatHastings was “an unfavorable candidate

and a potential liability for the Little Rock Police Department.”

Hastings was hired in March 2007 and attended twenty weeks of police

training. After graduation, Hastings underwent twelve weeks offield training, during

1The Honorable Brian S. Miller, Chief Judge, United States District Court for

the Eastern District of Arkansas. 

-2-
which he rode along with more experienced officers. Hastings thereafter received

forty hours of training per year, including refresher courses on the use of force. 

Hastings wasthe subject of multiple disciplinary actions over the course of his

five-year career with the Little Rock Police Department. He repeatedly failed to

activate his motor vehicle recording device; failed to properly store property or

properly complete paperwork; failed to properly investigate; failed to honor

subpoenas; failed to notify supervisors; and failed to follow orders or left his district

without permission. Hastings also used inappropriate language or engaged in

unbecoming conduct; engaged in improper driving or damaged department

equipment; slept on duty; and was untruthful. Hastings’s discipline for these

violationsranged from counseling and reprimands to suspensions from one to fifteen

days.

The Little Rock Police Department maintains an Early Intervention System

(EIS) that monitors officers to identify patterns of misconduct. Supervisors have

access to the system, and the office of professional standards receives an alert

whenever an officer meets “an established threshold [of incidents] . . . pertaining to

use of force, on-duty motor vehicle accidents, police pursuits and complaints

involving misconduct and inadequate service.” Until the software was upgraded in

2012, the system did not distinguish between officers who had used force during an

incident and those officers who had not used force but were otherwise involved.

Hastings triggered three EIS alerts during his career. In April 2009, the EIS

system identified Hastings as having been involved in six use-of-force incidents

during the preceding year. The department had previously investigated the incidents

and exonerated Hastings of any wrongdoing. According to the facts gathered by the

internal affairs division and set forth in the EIS report, three incidents involved

suspects attempting to punch Hastings, to which Hastings responded with a “brachial

stun,” a punch, and “severalstraight punches,” respectively. The remaining incidents

-3-
involved force related to taking down noncompliant or fleeing suspects. Hastings’s

immediate supervisor reviewed the EIS report and concluded that Hastings had

employed “the minimum use of force necessary to carry out his assigned duties as a

patrolman.” The sergeant determined that the report was a “false alarm” and

recommended no disciplinary action. Two lieutenants, a captain, and Chief Thomas

all concurred in the sergeant’s recommendation. 

The next EIS alert occurred in February 2010, after Hastings was involved in

ten use-of-force incidents in the preceding year. The department previously had

investigated those incidents and exonerated Hastings of any wrongdoing. According

to the EIS report, Hastings used force when confronted with suspects who were

noncompliant, fleeing, resisting arrest, or attempting to punch or kick the officers.

Hastings used force similar to that which was reported in the April 2009 EIS report,

including takedowns and punches. He also used a “straight arm bar,” a “shoulder pin

maneuver,” “straight arm strikes,” and baton strikes.

 

After reviewing the file, his sergeant wrote that Hastings’s use-of-force

incidents were “not that high,” in light of his “patrol area consist[ing] of the highest

violent crime area and . . . the heaviest call-load.” She did not recommend discipline

but indicated thatshe would monitor Hastings’s performance. The lieutenant agreed,

and the captain advised that he had asked Hastings’s supervisors to work with

Hastings “very close[ly] to ensure he is professional and works to avoid uses of

force.” The assistant chief of police recommended additional monitoring and

supervision, however, in light of the number of incidents involving the use of force

and vehicle pursuits, as well as an on-duty motor vehicle accident and other

disciplinary issues. Based on the assistant chief’s recommendations, Chief Thomas

ordered Hastings to have bi-weekly counseling sessions and required bi-weekly

progress reports for six months.

-4-
While the investigation into the second EIS alert was pending, Cedric McSwain

filed a citizen complaint against Hastings. McSwain reported that he was standing

in an alley on March 15, 2010, when he saw officers approaching. McSwain reported

that he offered his identification, put his arms in the air, and told the officers his name

and address. According to McSwain, officers grabbed him by the arms and legs,

threw him to the ground, put a foot on his back, and punched him in the eye. The

police report indicated that McSwain wasintoxicated, belligerent, and resisted arrest.

The report further indicated that because the officers believed McSwain to be a

suspect who had fled on foot, they took him to the ground. According to the officers

involved in the incident, Hastings held McSwain’s left arm during the takedown and

thereafter handcuffed him. Hastings did not submit any documentation about the

incident or his use of force.

Following an internal affairs investigation, Chief Thomas found that Hastings

had violated the department’s general orders requiring police-incident reports and

use-of-force reports. Hastings was exonerated from the allegations that he had used

excessive force and failed to properly operate his motor vehicle recording device. An

allegation of untruthfulness was deemed “not sustained.” Chief Thomas ordered

counseling and remedial training on documenting the use of force. McSwain later

filed a lawsuit against Hastings, Chief Thomas, and other officers. The lawsuit was

dismissed after McSwain failed to respond to the merits of the defendants’ motion for

summary judgment. See McSwain v. Hastings, No. 4:13-cv-122-DPM, 2015 WL

731286 (E.D. Ark. Feb. 17, 2015).

Hastings triggered a third EIS alert in April 2010 after being involved in six

use-of-force incidents between January 24, 2010, and April 18, 2010. The

department investigated those incidents and exonerated Hastings. Like the previous

reports, this report indicated that Hastings had used force against individuals who

were noncompliant, fleeing, actively resisting arrest, or attempting to punch or kick

officers. Hastings’s use of force included takedowns, the use of pepper spray, and the

-5-
use of “his bodyweight to maintain control” of a suspect. Hastings was ordered to

continue with his bi-weekly counseling. 

Hastings did not trigger any further EIS reports during his time on the police

force, nor were any further citizen complaints or lawsuits filed against him.

According to his concise officer history report, Hastings was involved in a total of

forty-one incidents involving the use of force. His only use of deadly force during

his five-year career occurred when he shot Moore.

Chief Thomas authorized an investigation on June 27, 2012, into allegations

that Hastings had been untruthful and was guilty of dereliction of duty. According

to the internal affairs report, Hastings had been dispatched to a store at 4:13 a.m. on

June 25, 2012, after an alarmcompany called and reported glass breakage. The alarm

company called again at 4:37 a.m. to report an alarm indicating that the front door

was opened, at which time Hastings reported to dispatch that he had shaken the front

door. Hastings’s incident report stated that the offense was a false alarm and that all

doors and windows were locked and secured. 

The incident was recorded on the store’s security camera and directly

contradicted Hastings’s version of the incident. The recording showed a rock being

thrown through a window in the front door. A suspect had entered the business and

later exited with a large white bag containing the loot. A police car then drove by

without stopping, and the store manager later can be seen entering and exiting the

store, presumably while waiting for the officers. The manager called dispatch at 4:46

a.m. to report that no officers had responded to the calls. During an interview,

Hastings said that he exited his car, walked up to the doors, and pulled them to make

sure that they were secure. According to the investigation report, the video evidence

“clearly display[ed] the front doors of the business and never showed Officer

Hastings approach the doors.” ChiefThomas determined that Hastings had neglected

his duty and been untruthful, in violation of the rules and regulations of the police

-6-
department. Hastings remained on duty during the investigation into the store

incident.

We turn, then, to the incident that gave rise to the present action. In the early

morning hours of August 12, 2012, Hastings responded to a report of suspicious

activity near an apartment building. According to the caller, two individuals were

walking through the parking lot and looking into vehicles with flashlights. Hastings

arrived on the scene and advised over the radio that he had heard glass breaking and

had observed three black males. The three suspects soon entered a vehicle, and

Moore drove the vehicle forward toward Hastings. When Hastings stepped out in

front of the car, Moore either stopped the car or placed it in reverse. Hastings fired

two rounds into the driver’s side compartment, killing Moore. Homicide detectives

and members of the Crime Scene Search Unit were called to the scene, and the Little

Rock Police Department began its criminal investigation.

Several hours after the shooting and in the presence of his attorney, Hastings

was advised of his Miranda rights and interviewed by law enforcement officials.

Hastings stated that he was positioned near the top of a hill when he observed two

black males in a vehicle and one black male standing nearby holding a flashlight.

Hastings repositioned himself and then observed the three suspects enter a different

vehicle. Hastings stated that when the vehicle drove forward, he stepped out in front

of it, turned on his flashlight, and yelled, “Police, stop the car!” According to

Hastings, the driver did not slow down and instead drove “straight at [him].”

Hastings stated that he backpedaled and realized that he had no place to go, with

rocks behind him and a wall next to him. Hastings claimed that he then shot into the

vehicle to prevent the driver from running him over.

Hastings stated that after he fired the two shots, the vehicle passed by him so

closely, he could have touched it. According to Hastings, the vehicle “crashed into

the rocks” as it proceeded forward, traveled just over an embankment, stopped

-7-
momentarily, and then rolled backwards until its rear end struck a parked car. The

two passengers fled from the scene. Hastings maintained that he did not shoot at the

vehicle while it was traveling in reverse.

Police officers located the two teenage boys who had been with Moore that

August morning. One of the boys explained that as the vehicle approached the

dumpster, he saw a light and told Moore to stop, which he did. The teenager

recounted that Moore put the gear in reverse and started backing down the hill. The

officer then opened fire. The other boy said that they were unaware that a police

officer was present until the officer stepped in front of the car. He said that Moore

was stopping the car when the officer fired shots, whereupon the vehicle traveled

backwards. 

Hastings’s version of the incident was inconsistent with the passengers’

accounts and the evidence gathered at the crime scene. The rocky embankment that

Hastings claimed the vehicle traveled over was undisturbed. The vehicle’s

undercarriage was not damaged, and its gear shift was in neutral. A reconstruction

of the event determined that the victim’s vehicle was traveling “in reverse under

power” before it hit the parked car. Chief Thomas ultimately concluded that the

vehicle had stopped several feet from Hastings and that the driver was in the process

of reversing when Hastings discharged his weapon. 

In September 2012, a state district judge issued a warrant for Hastings’s arrest

on a charge of manslaughter in violation of Arkansas Code § 5-10-104. The

supporting affidavit stated that “[w]hile it appearsthat the vehicle was driving toward

Hastings at some point, all of the physical evidence is consistent with statements

made by the occupants of the car, indicating that the car was stopped, or in reverse

at the time Hastings fired, and not traveling toward him at a high rate of speed, as

Hastings indicated in his statement.”

-8-
Following the internal affairsinvestigation, Chief ThomasterminatedHastings

for violating the general orders and the rules and regulations of the Little Rock Police

Department. The termination was based on Hastings’s shooting of Moore and his

dereliction of duty and untruthfulness regarding the store break-in. With respect to

the shooting, Hastings had violated General Order 303, Section II.D., which states,

“Officers may only use Deadly Force to protect themselves or others from what they

reasonably believe to be an immediate threat of death or serious injury.” Hastings

had also violated General Order 303, Section II.E.1-2, which provides:

Discharging firearms at a moving or fleeing vehicle is prohibited, unless

it is necessary to prevent imminent death or serious physical injury to

the officer or another person.

Officers will not voluntarily place themselvesin a position in front of an

oncoming vehicle where Deadly Force is the probable outcome. When

confronted by an oncoming vehicle, officers will move out of its path,

if possible, rather than fire at the vehicle. 

Following the criminal and internal investigations, a Deadly Force Review

Board was convened to evaluate both investigations. The Board determined that the

incident was avoidable and that Hastings “did not adhere to his training when he

exited his position of cover and concealment and placed himself in the path of the

moving vehicle.”

Perkins filed this action against Hastings, Chief Thomas, and the City of Little

Rock in June 2015. As relevant to this appeal, she alleged that the City “maintained

a widespread custom of excessive force and untruthfulness,” that Thomas and the

City failed to train or supervise police officers, and that Thomas was individually

liable for hiring and retaining Hastings.

-9-
In opposition to defendants’ motion for summary judgment, Perkinssubmitted

an affidavit and a report by Roger Clark, an expert in police procedures, who opined

that the City failed to investigate or discipline its officers. Clark compared the

number of incidents offorce sustained as excessive (33) to the total number of use-offorce incidents that generated internal affairs reports (577) by Little Rock police

officers from 1985 to 2016. Clark found that the percentage of incidents deemed

excessive (6 percent) was “inordinately low” and was “a per se indicator of a pattern

and practice by the Little Rock Police Department to ignore clear indicators of

excessive force by officers.” According to Clark, the numbersindicated that the City

allowed officers “to repeatedly inflict excessive force and ignore the written policies

and procedures of the Little Rock Police Department.” Clark did not review the

individual incidents involving the use of force and did not identify incidents in which

a finding of excessive force should have been sustained but was not. When asked to

identify an instance in which excessive deadly force was used between 2004 and

2011, Clark replied, “I did not review the uses of deadly force case by case.”

Similarly, Clark did not examine each incident in which Hastings had applied

force, concluding instead that Hastings must have used excessive force because he

had been involved in forty incidents involving the use of force during his five-year

career. Later in his deposition, Clark identified three incidents in which he believed

Hastings had used excessive force. When asked which incidents indicated that

Hastings would use deadly force against Moore, Clark replied, “[W]hen you have an

officer that’s non-compliant in any area, it’s reflective of being non-compliant in the

critical area . . . [, and] sooner or later, their departure from the standard will result

in a catastrophic outcome.” 

As recounted above, the district court granted summary judgment to Thomas

and the City. On the claim alleging a municipal custom of permitting or encouraging

excessive force, the court determined that Perkins had not established an underlying

pattern of excessive force and that “a pattern of untruthfulness, even if proven, is not

-10-
similar enough to be the proximate cause of an officer’s use of excessive force.” D.

Ct. Order of Jan. 27, 2017, at 14. With respect to Perkins’s claim alleging failure to

train or supervise the City’s police officers, the district court concluded that “the

undisputed facts do not demonstrate that either Thomas or the city of Little Rock was

aware of and deliberately indifferent to a pattern of unconstitutional conduct by the

LRPD that was similar to the shooting of Bobby Moore.” Id. at 4. The district court

also concluded that “the single act of hiring Hastings did not proximately cause a

violation of Bobby Moore’s constitutional rights.” Id. at 15. 

Perkins moved for reconsideration, arguing that the court had committed

“serious misapplications of the law” and had “arbitrar[il]y pars[ed]” the evidence. D.

Ct. Order of Mar. 24, 2017, at 1. Perkins also claimed that the district court had

disregarded Clark’s expert opinion. The district court denied the motion, reiterating

that Perkins had failed to establish a pattern of prior similar misconduct. The court

further explained that Clark’s statistical analysis alone could not substantiate his

opinion that the City maintained a custom of allowing officersto use excessive force.

II. Discussion

We review de novo the district court’s grant ofsummary judgment, viewing the

evidence in the light most favorable to the nonmoving party and drawing all

reasonable inferences in that party’s favor. Andrews v. Fowler, 98 F.3d 1069, 1074

(8th Cir. 1996). Summary judgment is appropriate if the moving party shows that

there is no genuine dispute as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). “Summary judgment is also

appropriate when the plaintiff has failed to make a sufficient showing ofthe existence

of an essential element of her case.” Andrews, 98 F.3d at 1074.

-11-
A. Municipal Liability

A municipality may be held liable under § 1983 if it, “under color of any

statute, ordinance, regulation, custom, or usage, of any State . . . , 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.” 42 U.S.C. § 1983;

see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Municipal liability

exists “only where the municipality itself causes the constitutional violation.” City

of Canton v. Harris, 489 U.S. 378, 385 (1989). A plaintiff thus must “identify a

municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of Cty.

Comm’rs v. Brown, 520 U.S. 397, 403 (1997). 

“[A]n act performed pursuant to a ‘custom’ that has not been formally approved

by an appropriate decisionmaker may fairly subject a municipality to liability on the

theory that the relevant practice is so widespread as to have the force of law.” Id. at

404. The plaintiff also must show a direct causal link between the custom and the

deprivation of rights, i.e., that “the municipality was the ‘moving force’ behind the

injury alleged.” Id. (quoting Monell, 436 U.S. at 694). “Where a plaintiff claims that

the municipality has not directly inflicted an injury, but nonetheless has caused an

employee to do so, rigorous standards of culpability and causation must be applied

to ensure that the municipality is not held liable solely for the actions of its

employee.” Id. at 405. 

Perkins first contends that the violation of her son’s Fourth Amendment rights

was caused by the City’s failure to adequately investigate police misconduct. To

establish a municipal custom based on a failure to prevent police misconduct, a

plaintiff must show that the municipality acted with deliberate indifference to the

rights of persons with whom the officers come into contact. See Harris v. City of

Pagedale, 821 F.2d 499, 504 (8th Cir. 1987) (applying a deliberate indifference

standard to a claim of “a municipal custom of failing to receive, investigate or act on

-12-
citizen complaints of physical and sexual misconduct by police officers”). To

establish deliberate indifference, a plaintiff ordinarily must show a pattern of

constitutional violations.

2 See Brown, 520 U.S. at 409 (explaining that a “pattern of

injuries [is] ordinarily necessary to establish municipal culpability and causation”);

Parrish v. Luckie, 963 F.2d 201, 204 (8th Cir. 1992) (“To establish a city’s liability

based on its failure to prevent misconduct by employees, the plaintiff must show that

city officials had knowledge of prior incidents of police misconduct and deliberately

failed to take remedial action.”); Harris, 821 F.2d at 504 (“The claimant must

demonstrate ‘deliberate indifference or tacit authorization [by municipal officials] of

the offensive acts by [failure] to take remedial steps following notice of a pattern of

such acts by . . . subordinates.’” (alterations in original) (quoting Wilson v. City of

N. Little Rock, 801 F.2d 316, 322 (8th Cir. 1986))). The district court determined

that Perkins’s failure to show a pattern of constitutional violations foreclosed her

inadequate-investigation claim.

The district court did not err when it required Perkins to establish a pattern of

constitutional violations to prove her claim. See Mettler v. Whitledge, 165 F.3d

1197, 1205 (8th Cir. 1999) (“Evidence that a police department has failed to

investigate previous incidents similar to the incident in question may support a

finding that a municipal custom exists, and that such a custom encourages or allows

officers to use excessive force without concern for punishment.”); Rogers v. City of

Little Rock, 152 F.3d 790, 798 (8th Cir. 1998) (“In order to subject the city to § 1983

liability Rogers must show that the city had a ‘“policy or custom” of failing to act

upon prior similar complaints of unconstitutional conduct, which caused the

2Perkins has not argued that this case is one where Hastings’s use of excessive

force was “the plainly obvious consequence” of the City’s alleged failure to

investigate police misconduct. See Brown, 520 U.S. at 409.

-13-
constitutional injury at issue.’” (quoting Andrews, 98 F.3d at 1075)).3 Nor did the

district court misinterpret Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996), in

which the court held that the plaintiff had presented sufficient evidence to allow a

jury to conclude that the municipality permitted or encouraged a pattern of excessive

force through its inadequate investigations of civilian complaints. Although Perkins

maintains that the City’s investigations into misconduct were “nothing more than a

facade, designed to exonerate officers,” Appellant’s Br. 16,she has not addressed the

substance ofthe district court’s decision to grant summary judgment to theCity—that

she had not presented sufficient evidence to show a pattern of constitutional

violations. 

Atsummary judgment, Perkins argued that the evidence established a “pattern

of shooting at moving cars that do not pose an objectively reasonable fear of

imminent death or great bodily harm.” She presented some evidence regarding six

incidentsin which officers had used deadly force against individuals driving vehicles.

The district court concluded that only one of the shootings was arguably unjustified

and that the remaining incidents involved drivers attempting to run over police

officers. D. Ct. Order of Jan. 27, 2017, at 13. The court concluded that Perkins thus

had notshown a pattern of constitutional violations, even assuming thatsome officers

had “acted imprudently because they could have stayed inside their vehicles, waited

3Perkins argues that the district court relied on a “non-existent quotation” from

Rogers, Appellant’s Br. 8, and thus erroneously concluded that “deliberate

indifference will not be found if the alleged misconduct was investigated and

exonerated or if the officer was disciplined,” see D. Ct. Order of Jan. 27, 2017, at 9.

The district court corrected this error in its order denying Perkins’s motion to

reconsider. See D. Ct. Order of Mar. 24, 2017, at 10-12. Perkins also criticizes the

district court for relying on evidence included in the record but not cited by the

parties. The Federal Rules of Civil Procedure clearly allow the district court to

consider the materials in the record. Fed. R. Civ. P. 56(c)(3) (“The court need

consider only the cited materials, but it may consider other materials in the record.”).

-14-
for backup, or gotten out of the way.” Id. at 14. Perkins has not explained whether

or how the district court erred in its analysis of those incidents, but rather argues that

she has established “that several officers fired at several vehicles despite them not

being in the path of said vehicles.” Appellant’s Br. 48-49; see id. at 22. Even

assuming that the evidence can support her assertion, Perkins still has not shown that

excessive force was used in those shootings, for constitutionally permissible reasons

could exist for an officer to shoot at a moving vehicle even when not in the vehicle’s

path.

Perkins also argued at summary judgment that certain other police shootings

demonstrated a pattern of excessive force. The district court considered evidence of

those shootings, but found “Perkins’s accounts of these events [to be] largely

speculative.” D. Ct. Order of Jan. 27, 2017, at 11. On appeal, Perkins cites failures

in the investigation of a police shooting that occurred in December 2010. The

personal representative of that victim’s estate brought suit, and the case settled after

the officer was denied qualified immunity. While that lawsuit put the City on notice

of a possible constitutional violation, one unjustified shooting does not establish a

pattern of constitutional violations, and Perkins has not shown that the district court

erred in its analysis of the other shootings it considered.

Perkins contends that her expert established “instances of ‘facade’

investigations and inadequate supervision” and that the district court’s “failure to

address—or even to mention—this competent, admissible and unopposed expert

evidence is wholly inexplicable, and constitutes error.” Appellant’s Br. 27. The

record reveals, however, that the district court addressed this expert evidence in its

order denying reconsideration, concluding thatClark’s report and testimonycould not

establish a pattern because his opinion was based only on his statistical analysis and

not on actual incidents involving excessive force by Little Rock police officers. D.

Ct. Order of Mar. 24, 2017, at 4-5. We find no error in the court’s conclusion that

-15-
those statistics alone were insufficient to present a triable issue on Perkins’s failureto-investigate claim. See Strauss v. City of Chicago, 760 F.2d 765, 768-69 (7th Cir.

1985)(explaining that evidence that the police departmentsustained only six to seven

percent of all registered complaints “indicate[d] nothing” without identifying what

made the prior conduct illegal and without “show[ing] that a similar illegality was

involved in [the plaintiff’s] case” (internal quotation marks and citation omitted)). 

In sum, Perkins claims on appeal that the City maintained a custom of facade

investigations based on alleged shortcomingsin the City’sinvestigationsinto officerinvolved shootings. The actionable municipal custom here must be one of deliberate

indifference to a pattern of excessive force, however, which Perkins has not

established in light of the fact that she has not shown a pattern of underlying

constitutional violations. 

For the same reason, we uphold the grant of summary judgment on Perkins’s

claimalleging that the City had failed to train orsupervise its police officers.

4 For the

City to be liable under this theory, the “municipality’s failure to train its employees

in a relevant respect must amount to ‘deliberate indifference to the rights of persons

4Perkins also sued Thomasin his official capacity as police chief. “As we have

noted,‘[a]suit against a public official in his official capacity is actually a suit against

the entity for which the official is an agent.’” Parrish v. Ball, 594 F.3d 993, 997 (8th

Cir. 2010) (alteration in original) (quoting Elder-Keep v. Aksamit, 460 F.3d 979, 986

(8th Cir. 2006)). 

We note in passing that Perkins alleged in her complaint that “Hastings was

trained in the appropriate use of force for police officers” and “was fully aware that

an officer may not use deadly force in situations where his life and safety, or those of

others, is not in danger.” Compl. ¶ 97. The City presented evidence that Hastings

completed approximately 1,500 hours of training, including police academy, field

training, and annual courses on the use of force.

-16-
with whom the [untrained employees] come into contact.’” Connick v. Thompson,

563 U.S. 51, 61 (2011) (alteration in original) (quoting Canton, 489 U.S. at 388); see

Tilson v. Forrest City Police Dep’t, 28 F.3d 802, 807 (8th Cir. 1994) (“The standard

of liability for failure to supervise is ‘demonstrated deliberate indifference or tacit

authorization of the offensive acts.’” (quoting Bolin v. Black, 875 F.2d 1343, 1347

(8th Cir. 1989))). “A pattern of similar constitutional violations by untrained

employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for

purposes of failure to train.” Connick, 563 U.S. at 62 (quoting Brown, 520 U.S. at

409); see Ball, 594 F.3d at 1002 (requiring “notice of a pattern of unconstitutional

acts committed by subordinates” to establish a failure-to-supervise claim). As set

forth above, Perkins has not established a pattern of similar constitutional violations.

B. Individual Capacity Claims Against Chief Thomas

We reject Perkins’s contention that Chief Thomas should be held individually

liable for Moore’s death based on his decision to hire Hastings. The Supreme Court

has set forth an exacting test for imposing liability based on a hiring decision,

requiring a court to “carefully test the link between the policymaker’s inadequate

decision and the particular injury alleged.” Brown, 520 U.S. at 410; see id. at 415

(“Cases involving constitutional injuries allegedly traceable to an ill-considered

hiring decision pose the greatest risk that a municipality will be held liable for an

injury that it did not cause.”); Morris v. Crawford Cty,, 299 F.3d 919, 923 (8th Cir.

2002) (“The prior complaints in an applicant’s background must be nearly identical

to the type of officer misconduct that caused the constitutional deprivation allegedly

suffered by a plaintiff.”). Perkins points to evidence that Thomas was friends with

Hastings’sfather, that Hastings attended a Ku Klux Klan meeting in high school, that

there were irregularities in Hastings’s polygraph examination, and that a lieutenant

advised against hiring Hastings. We conclude that the referred-to evidence cannot

establish the essential link between Thomas’s decision to hire Hastings and his use

-17-
of excessive force against Moore. Stated differently, the evidence presents no

genuine issue of material fact that a “plainly obvious consequence of the hiring

decision” would be Hastings’s unjustified use of deadly force. See Brown, 520 U.S.

at 412. 

We also reject Perkins’s argument that she has presented sufficient evidence

to preclude summary judgment on her claim that Thomas failed to adequately train

or supervise Hastings. A supervisor may be held liable “if a failure to properly

supervise and train the offending employee caused a deprivation of constitutional

rights.” Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001) (quoting Andrews, 98

F.3d at 1078). The plaintiff must show that the supervisor “(1) had notice of a pattern

of unconstitutional acts committed by subordinates; (2) was deliberately indifferent

to or tacitly authorized those acts; and (3) failed to take sufficient remedial action; (4)

proximately causing injury to [the plaintiff].” Brewington v. Keener, 902 F.3d 796,

803 (8th Cir. 2018) (internal quotation marks omitted) (quoting Livers v. Schenck,

700 F.3d 340, 355 (8th Cir. 2012)). To prove deliberate indifference, the plaintiff

must show that the supervisor “had notice that the training procedures were

inadequate and likely to result in a constitutional violation.” Livers, 700 F.3d at 356

(quoting Andrews, 98 F.3d at 1078).

Perkins has not presented sufficient evidence to show that Thomas had notice

of a pattern of excessive force by Little Rock officers, nor has she shown that he acted

with deliberate indifference. Hastings’s disciplinary record indicates that he was a

lazy and careless police officer, seemingly unable to complete the paperwork

requirements or meet the scheduling demands of police work. He also engaged in

unbecoming conduct and used inappropriate language. While those violations of the

police department’s general orders or rules and regulations speak volumes about

Hastings’s general unfitness for police work, they do not establish a pattern of

constitutional violations, nor do they show that Thomas’s failure to train orsupervise

-18-
Hastings resulted in Moore’s death. See Livers, 700 F.3d at 356 (“To impose

supervisory liability, other misconduct must be very similar to the conduct giving rise

to liability.”). 

With respect to Hastings’s use of force over the course of his career, Thomas

ordered additional supervision and additional training after Hastings triggered three

EIS alerts and one citizen complaint in 2009 and 2010. Following those remedial

actions, Hastings had no further EIS alerts or citizen complaints relating to the use of

force. Although Perkins argues that Thomas should have disciplined Hastings for

“body-slam[ming] a mentally-ill, homeless black woman” in July 2010, Appellant’s

Br. 41, Hastings reported that the woman had struck him and that he was trying to

prevent her from striking him again. Other than his use of the word “body slam” to

describe the takedown, the record does not support an inference that Hastings’s use

of force was unconstitutional or that Thomas had notice that the report was false.

Finally, relying on statistics, Perkins claims that Hastings used force more frequently

against racial minorities, but in the absence of evidence that the force used against

racial minorities was excessive or otherwise unjustified, those statistics do not

support a supervisory claimagainstThomas. Perkins has thus not submitted evidence

sufficient to show that Thomas had notice that his training and supervision were

inadequate and likely to result in the use of excessive force against Moore. 

The judgment is affirmed.

_____________________________

-19-