## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 7 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEAN F. TRIGALET; MYRA J. TRIGALET, Personal Representatives of the Estate of Constance Trigalet,

Plaintiffs-Appellees,

v. CITY OF TULSA, OKLAHOMA, a municipal corporation,

Defendant-Appellant. No. 98-5261

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 92-CV-368)

Submitted on the briefs: Andrew C. Clarke of Bailey & Clarke, Memphis, Tenne ssee, for Plaintiffs-Appellees. David L. Pauling, City Attorney, and Michael C. Rom ig, Senior Asst. City Attorney, Tulsa, Oklahoma, for Defendant-Appel lant.

Before EBEL , LUCERO , and MURPHY , Circuit Judges.

EBEL , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. -2- This interlocutory appeal is before us on our grantof review under 28 U.S.C. § 1292(b). 1 Specifically, the following controlling question of law was certified to this court: whether, under the rationale of Williams v. City & County of Denver , 99 F.3d 1009 (10th Cir. 1996), [ op. vacated , 140 F.3d 855 (10th Cir. 1997), and j. vacated & case remanded , 1998 WL 380518 (10th Cir. June 26, 1998)], a municipality can be held liable if the City’s actions can be characterized as arbitrary, or consc ience-shocking, in a constitutional sense, even if there are no uncons titutional acts by an individual officer. We answer this question in the negative. For purpo ses of this appeal the facts are not in dispute and are taken from the dis trict court’s orders of August 27, 1997 (denying summary judgment for defen dants) and August 17, 1998 (denying in part and granting in part defendants’ renewed motion for summary judgment and directing preparation of reque st for interlocutory appeal). These facts are summarized as follows. In May of 1990, Constance Trigalet, Martha Annette Trigalet, and Steven Munson were killed when a GMC Safari Minivan strucktheir Ford Escort station wagon. The minivan had run a red light while being pursued by members of the Tulsa Police Department (hereinafter “TPD”). The s ole reason for the police-3-

pursuit was for a stolen vehicle offense. There wa s no information that the suspects in the fleeing van had committed any viole nt felony or were known for violent behavior. The minivan ran at least eight stop signs as one of the officers pursued it through residential areas of central Tulsa, passing a high school, a park and coming within blocks of the University of Tulsa. T his portion of the pursuit involved speeds in excess of sixty to sixty-five mi les per hour, with the fleeing van traveling through stop signs at major intersect ions at between forty and fifty miles per hour without slowing. The officers were aware of the likelihood of encountering traffic during the pursuit. No superv isor or watch commander was notified of the pursuit, nor was the pursuit superv ised, although the TPD’s written vehicle pursuit policy then in force required that all pursuits be supervised and directed officers to terminate such pursuits when the hazards outweigh the benefits. The training director for the TPD at the time of th e accident testified that officers received the following training on high-sp eed pursuits: (1) twenty-four hours of hands-on training regarding the mechanical operation of a vehicle; and (2) some additional amount of training on the philo sophy of pursuits, the specifics of which he did not recall. The manager of safety and equipment for the TPD at the time of the accident testified that it was appr opriate to chase any traffic-4-

offender no matter what the offense. Officers are trained to use due caution and common sense in evaluating pursuits. Due to the di scretionary nature of the pursuit policy, unless a supervisor discontinues a chase, the decision to terminate a chase is solely up to the officer. From 1985 thr ough 1990, seven officers were disciplined for pursuit policy violations. All of the violations dealt with technical violations of the pursuit policy and not the decisi on to initiate, continue, or terminate a pursuit. Plaintiffs brought this 42 U.S.C. § 1983 action aga inst a number of defendants, including the City of Tulsa. Summary j udgment for defendants was entered in March of 1993. Plaintiffs both appealedand filed a motion for reconsideration. This court dismissed the first ap peal in August of 1993. The district court then granted the motion for reconsid eration and vacated part of its earlier dismissal. Specifically, the district court reinstated the case against the three officers who had participated in the chase. The officers then appealed, claiming the district court erred in denying them q ualified immunity. We determined that the officers were entitled to quali fied immunity, holding that it was not clearly established in May of 1990 that a p olice officer could be liable under § 1983 for an injury caused by a third party. See Trigalet v. Young , 54 F.3d 645, 648 (10th Cir. 1995) (reversing judgme nt of district court denying defendant officers’ motion for summary judgment).-5-

Plaintiffs then moved to revise the court’s order d ismissing the City, which was granted, thereby reinstating the action a gainst the City. Tulsa then filed a motion for summary judgment, which was init ially denied. However, all proceedings were stayed pending the Supreme Court’s decision in County of Sacramento v. Lewis , 523 U.S. 833 (1998). Plaintiffs had alleged that five elements of the TP D’s policies and practices violated the constitutional rights of the decedents : 1. TPD failed to maintain records regarding prior pur suits which illustrates its lack of concern for the potentiallyfatal results of these pursuits; 2. TPD failed to adopt a policy which places meaningf ul restraints on officers regarding the institution, continuation an d termination of pursuits; 3. TPD failed to properly monitor and supervise pursu its, leaving all pursuit decisions to highly-emotional, adrenalin-ch arged officers instead of allowing objective supervisory officers to make decisions concerning high-speed pursuits; 4. TPD failed to adequately train its officers with r espect to the philosophy of pursuits including the justification for initiating, continuing and terminating pursuits; and 5. TPD failed to hold officers accountable for improp er decisions to initiate, continue and terminate a pursuit.-6-

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

I. Williams was also a high-speed police case, resulting in the death of an innocent motorist caused when the speeding officer, who was not in actual pursuit of a suspect but was responding to a request for ba ckup from a fellow officer, ran a red light and crashed into Ms. Williams’ son’s car. She sued the officer and the city under 42 U.S.C. § 1983, claiming the defendant s had violated her son’s constitutional right to substantive due process. T he claims against the city were based both on the city’s alleged deliberate indiffe rence to the need to institute-7-

training, supervision and discipline procedures with respect to emergency driving and on its own conduct in hiring and training the officer. Williams , 99 F.3d at 1013. The district court determined as a matterof law that the officer’s conduct was not unconstitutional and that therefore the city’s policies and procedures could not give rise to municipal liabili ty based on the officer’s conduct. Id. The court also held that the city could not be he ld liable based on its own conduct absent a constitutional violation by the officer. Id. We reversed, holding that the evidence would support the conclus ion that the officer’s conduct was unconstitutional and that the city might be hel d liable for that conduct.
See id. We further held in light of governing Supreme Cou rt authority that “the City may be held liable for its own conduct even ab sent unconstitutional conduct by [the officer].” Id. We concluded, however, that the evidence was insu fficient “to send the issue of the City’s direct liability to the jury.” Id. On petitions for rehearing, we vacated the opinion in Williams and directed rehearing en banc to address the following question s: 1. What standard determines whether the conduct of th e officer in this case violated the constitutional ri ghts of the plaintiff’s decedent? 2. Applying that standard, is the ultimate determinat ion of whether the constitution was violated by the office r’s conduct to be made by the court or by a jury? 3. May the municipality be found liable for violating the constitutional rights of the plaintiff’s decedent b y its-8- own conduct or policies in hiring and/or failing to train Officer Farr, even if the officer’s conduct did notviolate the constitutional rights of decedent? Williams v. City & County of Denver , 140 F.3d 855 (10th Cir. 1997). We later abated the appeal pending a decision by th e Supreme Court in a factually similar case. We then vacated the dist rict court’s judgment and remanded Williams to that court for further proceedings in light of Lewis and Board of County Commissioners of Bryan County, Oklahoma v. Brown , 520 U.S. 397 (1997). See Williams v. City & County of Denver , No. 94-1190, 1998 WL 380518, at **1 (10th Cir. June 26, 1998). Lewis involved a high-speed police pursuit in which the police officer chased a speeding motorcycle driver, resulting in the death of the motorcycle passenger when the bike tipped over and the officerstruck and killed the passenger. The Supreme Court granted certiorari to consider “whether a police officer violates the Fourteenth Amendment’s guarant ee of substantive due process by causing death through deliberate or reckless ind ifference to life in a high-speed automobile chase aimed at apprehending a suspected offender?” Lewis , 523 U.S. at 836. Although Lewis did not involve an issue of municipal liability, t he Court did examine the standard for judging alleged execut ive abuse of power violating a substantive due process right, concluding it is that which shocks the conscience.
See id. at 846-48 and n.8. (“Thus, in a due process chall enge to executive action,-9-

the threshold question is whether the behavior of the governmental officer is so egregious that it may fairly be said to shock the c ontemporary conscience.”) The Court further likened the high-speed police chase s ituation to that of a prison riot, holding that “high-speed chases with no intent to h arm suspects physically or to worsen their legal plight do not give rise to liabi lity under the Fourteenth Amendment, redressible by an action under 42 U.S.C. § 1983.” Id. at 854. Under this standard, the officer’s actions did not shock the conscience. See id. at 855.
Brown involved an action by a plaintiff against a deputy sheriff who injured plaintiff when he used excessive force to r emove her from the passenger side of a stopped vehicle. Plaintiff sued the county and the county sheriff, claiming liability based on the county sheriff’s de cision to hire the deputy. The claim against the sheriff was dismissed before tria l, but the county stipulated that the sheriff was a policy maker regarding his department. See Brown , 520 U.S. at 401. The jury found the deputy liable for plain tiff’s injuries based on his use of excessive force and the lack of probable cause to arrest her. See id. at 402. It also found the hiring and training policies of the county (as instituted by the sheriff as policy maker) so inadequate as to amountto deliberate indifference to plaintiff’s constitutional needs. See id. The Supreme Court granted certiorari “to decide whether the county was properly held liable for [plaintiff’s] injuries based on [the sheriff’s] single decision to hire [the deputy].” Id.-10-

The Court reiterated its requirement that a plainti ff seeking to impose § 1983 liability on a municipality must identify a policy or custom that caused plaintiff’s injury. See id. at 403. It is not enough, however, that the plain tiff “identify conduct properly attributable to the municipality,” id. at 404.

The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” be hind the injury alleged. That is, a plaintiff must show that the m unicipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action a nd the deprivation of federal rights

. Id. (altered emphasis ours). Key to the Court’s discussion of the circumstances supporting municipal liability is that there be a violation of plaintiff’s constitutional rights.

II. It is against the background of these cases that we consider whether a municipality can be held liable for the actions o f its employees if those actions do not constitute a violation of a plaintiff’s cons titutional rights. We conclude, based on Lewis and Brown , as well as decisions from this and other circuits , as discussed below, that a municipality cannot be heldliable under these circumstances. See also City of Los Angeles v. Heller , 475 U.S. 796, 799 (1986) (“If a person has suffered no constitutional injuryat the hands of the individual2 As previously explained, the reckless or deliberate indifference standard

has since changed to conduct that shocks the conscience. See Lewis , 523 U.S. at 855; Childress v. City of Arapaho , 210 F.3d 1154, 1157 (10th Cir. 2000). We have also recognized that Lewis principles apply “whether the claimant is a police suspect or an innocent victim.” See Childress , 210 F.3d at 1157-58; Radecki v. Barela , 146 F.3d 1227, 1232 (10th Cir. 1998) (holding dep uty not constitutionally liable for death of innocent bystander where deputydid not intend to harm victim). -11- police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quit e beside the point.”). In Webber v. Mefford , 43 F.3d 1340 (10th Cir. 1994), we considered a § 1983 action against a police officer and the Ci ty of Sapula for injuries caused when a fleeing suspect, pursued by the officer, col lided with plaintiffs, causing severe injuries. We held that a police officer vio lates a bystanders’ substantive due process rights only when the officer displays r eckless indifference to the risk created and directs his actions toward the bystander. 2We further held that “[a] claim of inadequate training, supervision, and [pur suit] policies under § 1983 cannot be made out against a supervisory authority absent a finding of a constitutional violation by the person supervised,” id. at 1344-45. We have recognized the need for a predicate constit utional violation in other contexts as well. In Myers v. Oklahoma County Board of County Commissioners , 151 F.3d 1313, 1316 (10th Cir. 1998), we acknowle dged the well-established principle that a municipality cann ot be liable under § 1983 for its3 In Myers , we were further concerned with the exception to t he requirement

for individual officer liability under circumstance s where the jury could have returned its verdict for the officers based on qual ified immunity. Under that circumstance, because the county was not entitled t o qualified immunity, the suit could proceed against the court. Id. at 1317-18. -12- employees’ actions (here, excessive force) “if a ju ry finds that the municipal employee committed no constitutional violation.” 3 Support for our position is found in the decisions of our sister circuits as well. See, e.g. , Evans v. Avery , 100 f.2d 1033, 1039-40 (1st Cir. 1996) (following holding in Heller that absent constitutional violation by officer, c ity cannot be held liable); S.P. v. City of Takoma Park, Md. , 134 F.3d 260, 272 (4th Cir. 1998) (assuming training of officers was unconstitutional, city could not be held liable where no constitutional violation by officers had occurred); Temkin v. Frederick County Comm’rs , 945 F.2d 716, 724 (4th Cir. 1991) (claim that commissioners failed to adopt adequate policies gov erning training and supervision of officers’ high-speed pursuits could not be made out absent constitutional violation by officers); Scott v. Clay County, Tenn. , 205 F.3d 867, 879 (6th Cir.), cert. denied , 121 S. Ct. 179 (2000) (holding that conclusion no officer-defendant deprived plaintiff of any constitutional right a fortiorari defeats claim against county); Claybrook v. Birchwell , 199 F.3d 350, 361 (6th Cir. 2000) (same); Estate of Phillips v. City of Milwaukee , 123 F.3d 586, 596-97 (7th Cir. 1997) (determining that officers did not violate co nstitution in seizing plaintiff’s-13-

decedent mandated conclusion that neither City nor police chief could be held liable); Tesch v. County of Green Lake , 157 F.3d 465, 477 (7th Cir. 1998) (where correctional officers at county jail did notviolate constitution, county and county sheriff not liable); Treece v. Hochstetler , 213 F.3d 360, 364 (7th Cir. 2000) (municipality’s liability for constitutional injury requires finding of individual officer liability on underlying claim); Roach v. City of Fredericktown,
Mo. , 882 F.2d 294, 298 (8th Cir. 1989) (for municipal liability to attach, there must first be underlying violation of plaintiff’s c onstitutional rights by municipal employee); Kiser v. City of Huron , 219 F.3d 814, 816 (8th Cir. 2000) (plaintiff must first establish that officers’ actions are unl awful before municipality can be held liable); Brodnicki v. City of Omaha , 75 F.3d 1261, 1266 (8th Cir. 1996) (since officers did not violate plaintiff’s rights, it follows that claim against city under theory of inadequate custom or municipal custom lacks merit); Quintanilla v. City of Downey , 84 F.3d 353, 355 (9th Cir. 1996) (holding public entity not liable for § 1983 under policy “that can cause cons titutional deprivations when the factfinder concludes that an individual officer , acting pursuant to the policy, inflicted no constitutional harm to the plaintiff,”); Scott v. Henrich , 39 F.3d 912, 916 (9th Cir. 1994) (holding that although liability of municipalities does not turn on liability of individual officers, “it is conting ent on a violation of constitutional rights”; where no constitutional violation occurred , municipality could not be held4 Other courts have disagreed with the Fagan decision. See Evans , 100 F.3d

at 1040; Thompson v. Boggs , 33 F.3d 847, 859 n.11 (7th Cir. 1994); Neal v. St. Louis County , 52 F. Supp. 2d 1090, 1096 (E.D. Mo. 1999), aff’d , 217 F.3d 955, 959 (8th Cir. 2000); Hildebrandt v. City of Fairbanks , 957 P.2d 974, 977-78 & n.7 (Alaska 1998). Further, it appears that a su bsequent panel of the Third Circuit has questioned the Fagan panel’s analysis. See Mark v. Borough of Hatboro , 51 F.3d 1137, 1153 n.13 (3d Cir. 1995). -14- liable); Rooney v. Watson , 101 F.3d 1378, 1381 (11th Cir. 1996) (concluding that where officer’s conduct in striking plaintiffs’ veh icle at high speed did not cause constitutional violation, court would not inquire i nto county’s policy and custom regarding patrol vehicle operation and training). But see Fagan v. City of Vineland , 22 F.3d 1283, 1291-92 (3d Cir.) (holding that “ina substantive due process case arising out of a police pursuit, an un derlying constitutional tort can still exist even if no individual police officer violated the constitution”), on reh’g en banc , 22 F.3d 1296 (1994). 4 Here, the threshold issue is whether the action cau sing the harm (police pursuit resulting in death of innocent bystander) s tates a constitutional violation at all. Because there was no evidence that the off icer intended to harm the decedents, Lewis dictates that no constitutional harm has been comm itted. Therefore, plaintiffs cannot meet the first prong of the test set forth in Collins v. City of Harker Heights, Tex. , 503 U.S. 115, 120 (1992) (“proper analysis requir es us to separate two different issues when a § 1983 c laim is asserted against a-15-

municipality: (1) whether plaintiff’s harm was cau sed by a constitutional violation, and (2) if so, whether the city is respo nsible for that violation.”). Thus, even if it could be said that Tulsa’s policie s, training, and supervision were unconstitutional, the City cannot be held liable where, as here, the officers did not commit a constitutional violation. See S.P. , 134 F.3d at 272 (citing Brown , 520 U.S. at 404, for requirement that plaintiff s how direct causal link between municipal action and deprivation of fe deral rights in order to hold municipality liable under § 1983). See also Heller , 475 U.S. at 799 (holding that where plaintiff has not suffered constitutional inj ury at the hands of individual police officer, fact that departmental regulations might have authorized use of constitutionally excessive force is “quite beside the point”) (emphasis in original); Kiser , 219 F.3d at 816 (holding “when a § 1983 plaintiff seeks to hold a municipality liable based on its alleged inadequate training and supervision of its police officers[,] . . . that plaintiff must fi rst establish that the officers’ actions were unlawful”); Quintanilla , 84 F.3d at 355 (public entity not liable even if policy could potentially cause constitutional depri vations where factfinder concluded individual officer inflicted no constitut ional harm in this instance). In sum, we hold that absent a constitutional violat ion by the individual police officers whose conduct directly caused plaintiffs’ injuries, there can be no-16-

municipal liability imposed on the City of Tulsa on account of its policies, customs, and/or supervision with regard to the indi vidual defendants. Accordingly, the district court’s order denying the City of Tulsa’s motion for summary judgment on plaintiff’s claim of directliability is REVERSED, and we REMAND with directions to the district court to enter summary judgment for the City of Tulsa as to that claim. We express no opinion as to the grant of summary judgment to the City of Tulsa on plaintiffs ’ claim of indirect liability based on the alleged unconstitutional actions of th e police officers, as that determination is not part of this appeal.