United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3291

___________

Virgie Lee Otey, Administratrix of the *

Estate of Charles Otey, deceased, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Melvin Marshall, Individually and in his *

official capacity as a Law Enforcement *

Officer in the City of Elaine Police *

Department, Phillips County, Arkansas; *

Larry Smith, Individually and in his *

Official Capacity as Chief of Police of *

the City of Elaine, Arkansas Police *

Department, *

*

Appellants. *

___________

Submitted: April 18, 1997

 Filed: July 30, 1997

___________

Before LOKEN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

MAGILL, Circuit Judge.

Larry Smith was the police chief of Elaine, Arkansas,

when Charles Otey was killed by an Elaine police officer.

The administrator of Otey's estate brought this 42
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U.S.C. § 1983 (1994) suit against Chief Smith, alleging

that Chief Smith had failed to supervise and train the

officer who had killed Otey. Chief Smith moved the

district court for summary judgment on the ground of

qualified immunity, and the district court denied the

motion. Chief Smith now appeals the district court's

denial of summary judgment, and we reverse.

I.

Elaine, Arkansas, is a small community near the

Mississippi border. On December 8, 1994, Elaine's police

force consisted of Chief Smith and two part-time

officers. One of these part-time officers was Melvin

Marshall, who also worked as a janitor for the Elaine

school system. Pursuant to Arkansas state regulations,

Officer Marshall had taken a 100-hour law-enforcement

training course to qualify as a part-time officer.

On the afternoon of December 8, 1994, Officer

Marshall was off-duty and relaxing in his home in Elaine.

At approximately 5:20 p.m., Officer Marshall heard

several gunshots somewhere in his neighborhood. Such

gunshots were not uncommon in Officer Marshall's

neighborhood, and Officer Marshall had made it a practice

to investigate such gunshots when they occurred.

Accordingly, Officer Marshall placed his .357 magnum

service revolver in his pocket, picked up his badge, and

went to investigate the shots.

Officer Marshall was told by a neighbor that the

shots had come from an alley near his house. Entering

the alley, Officer Marshall saw two African-American
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males at the far end of the alley. Officer Marshall saw

one of these men fire a handgun into the air. The shots

were then answered by several gunshots from a nearby

housing
Officer Marshall offered this version of events during his deposition. See J.A. 1

at 86-87. While proffering no evidence to contradict Officer Marshall's description of

events in the alley, the appellee contends that Officer Marshall did not see anyone fire

a handgun into the air. See Appellee's Br. at 1. Contrary to the appellee's apparent

belief, a party litigant may not generate a question of material fact out of uncontradicted

evidence merely by speculating that a witness is lying. Cf. FDIC v. Bell, 106 F.3d 258,

265 n.9 (8th Cir. 1997) ("We do not allow a case to go forward to trial on the mere

chance that a jury will disregard all evidence and accept the unsupported speculation

of a party litigant."). 

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project. The men then left the alley. Officer Marshall 1

drew his service revolver from his pocket, cocked it, and

held it in the air. He then attempted to pursue the two

men who had been in the alley. Officer Marshall took a

different route, going across an empty lot, to try to cut

them off.

At this time, Otey, who was fifteen years old, and

his fourteen-year-old friend Cyrus Thomas were on a

nearby street running from the gunshots. Officer

Marshall saw the two boys running and yelled for them to

stop. Thomas heard the order and stopped, while Otey

continued running. Officer Marshall's service revolver

discharged, and Otey was shot in the back.

Officer Marshall contends that he jumped a four-foot

ditch between the empty lot and the street. Officer

Marshall alleges that his foot slipped when he landed

after his jump. As he recovered his balance, his weapon

discharged accidentally. See J.A. at 107-10. Several

witnesses support this version of the facts. See id. at

139 (signed statement of Curley Marshall) ("I saw Melvin

[Marshall] running and jumping the ditch and when he did

his gun went off and the boy fell in the street."); 144
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(statement of Alvin White) ("I saw Melvin [Marshall] jump

the ditch and I saw him almost fall[;] it was like he

almost slipped backwards. The shot was when Melvin was

at the ditch.").
Arkansas State Police Field Investigator Barry Roy, who investigated the

2

shooting, allegedly transcribed a statement from Earnestine Broadus that was

considerably different from her affidavit. In the statement, Broadus allegedly told

Investigator Roy that she "heard Melvin [Marshall] when he hollered at the boys[.] I

was looking out my window to see what was going on and I saw Melvin coming across

the ditch and almost fall. The gun made a flash when Melvin slipped and almost fell."

J.A. at 140. In her affidavit, Broadus asserts that she "never told Barry Roy that

Melvin Marshall shot Charles Otey while falling." Id. at 204.

Although Otey was armed, it does not appear that he had recently fired the .25 3

caliber automatic pistol. There were no spent shell casings discovered in the nearby

alley, nor was gunpowder residue discovered on Otey's hands.

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The appellee contends that Officer Marshall shot Otey

intentionally. Several witnesses also support this

version of the facts. See J.A. at 204 (affidavit of

Earnestine Broadus) ("I was looking directly at Melvin

Marshall when he fired the fatal shot into Charles Otey.

Melvin Marshall was not tripping, falling or stumbling at

the time he discharged his revolver into Charles Otey's

back. In fact, Melvin Marshall was standing upright on

Lee Street, which is paved.") ; 212 (deposition of Cyrus 2

Thomas) (testifying that, although he did not see Officer

Marshall fire his service revolver, Thomas looked at

Officer Marshall immediately after Officer Marshall fired

and that Officer Marshall did not "appear to have fallen

or tripped or done anything"). 

Otey fell to the street after being shot. Officer

Marshall then retrieved a loaded .25 caliber automatic

pistol from Otey's back pocket. Otey subsequently died 3

from his gunshot wound.

Chief Smith was immediately notified of the shooting

by Officer Marshall. Chief Smith contacted the Arkansas
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State Police and turned the investigation of the shooting

over to them. Officer Marshall was put on administrative

leave during the pendency of the investigation, which was

conducted by Field Investigator Barry Roy of the Arkansas

State Police.
Specifically, the appellee alleged that: 4

Chief Larry Smith was deliberately indifferent to the rights of

Charles Otey and other citizens by his failure to adequately train,

supervise, and discipline Officer Melvin Marshall and other officers; and

in his failure to take preventative or remedial measures to prevent acts of

violence by officers under his command, having knowledge of such

propensities by officers, including Melvin Marshall of the city of Elaine,

Arkansas Police Department.

Chief Larry Smith knew or reasonably should have known of other

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Investigator Roy arrived in Elaine on the evening of

December 8, 1994. Investigator Roy interviewed

witnesses, took a statement from Officer Marshall, and

searched the area of the shooting for physical evidence.

Based on his investigation, Investigator Roy declined to

arrest Officer Marshall in connection with the shooting.

On December 29, 1994, the prosecuting attorney for the

First Judicial District of Arkansas also declined to

bring criminal charges against Officer Marshall in

connection with the shooting.

On July 21, 1995, Virgie Otey, who was Otey's mother

and who is also the administrator of Otey's estate,

brought § 1983 and pendant state tort claims against

Officer Marshall and Chief Smith in their individual and

official capacities. The § 1983 action alleged that

Officer Marshall had unreasonably seized Otey, in

violation of the Fourth Amendment, by intentionally

shooting him. The lawsuit also alleged that Chief Smith

was deliberately indifferent to Otey's constitutional

rights by failing to adequately train and supervise

Officer Marshall.4
propensities for violent misconduct, and other violations of citizens[']

constitutional rights by Officer Melvin Marshall, and was deliberately

indifferent in failing to promote and promulgate customs and policies of

a preventative or remedial nature.

Chief Larry Smith was deliberately indifferent in failing to establish

and enforce adequate policies and customs regarding the prevention,

investigation, and discipline of violent misconduct of officers working for

the city of Elaine, Arkansas Police Department, and instead encouraged

such behavior by his customs and policies amounting to acquiescence and

indifference to violations of citizens['] constitutional rights.

The deliberate indifference herein was in accordance with the

customs, policies, and procedures of the city of Elaine, Arkansas Police

Department and Chief Larry Smith.

Compl. at ¶¶ 14-17 (paragraph numeration omitted), reprinted in J.A. at 10-11.

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It was revealed during discovery that the Elaine

Police Department had a policy on the use of deadly force

in place at the time of Otey's shooting. This policy

provided that: 

Use of deadly Force by a member of this

Department against a person is limited to the

following:

(1) To effect an arrest or to prevent the

escape from custody of an arrested person, who,

the officer reasonably believes: (a) has

committed or attempted to commit a felony, (b)

which involved the use or threatened use of

deadly force and (c) the felon cannot

other[wise] be apprehended.

(2) To effect an arrest or to prevent the

escape from custody of an arrested person who
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the officer reasonably believes: (a) has

committed or attempted to commit a felony, (b)

would use deadly force if not immediately

apprehended, and (c) the felon cannot otherwise

be apprehended.

(3) To defend himself or a third person

from what he reasonably believe to be the use or

imminent use of deadly force.
Chief Smith asserts that deadly force has not been used by an Elaine police

5

officer during the past five years, except for Officer Marshall's alleged use of deadly

force against Otey. See Appellant's Br. at 16-17. The appellee does not challenge this

assertion, but suggests that "[t]he City of Elaine simply has been very fortunate that this

is the first incident of illegal deadly force perpetrated upon a juvenile." Appellee's Br.

at 11.

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(4) No deadly force may be used against an

escaping misdemeanant.

(5) The use of "warning shots" is

prohibited.

J.A. at 193. On February 2, 1992, Officer Marshall

signed a statement that he had read and understood the

policy.5

In his deposition, Officer Marshall testified that he

had once violated the city's policy against the use of

warning shots. See J.A. at 225-26. While investigating

a disturbance at a dance hall, Officer Marshall had fired

two shots in the air to disperse a hostile crowd after a

bottle had been thrown at the officer. See id. Although

Chief Smith was aware of the incident, he did not

discipline or counsel Officer Marshall for the violation

of the policy.

On April 24, 1996, Carolyn Dunigan, the Recorder for

the City of Elaine, described in an affidavit the results

of her search of city records. Dunigan stated that,

although the records listed 920 citizen contacts with the

police over the last five years, including 695 arrests,

"[n]o citizen complaints about excessive force (deadly or

otherwise) have been made against any member of the
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Elaine Police Department, including Melvin Marshall, in

the last five (5) years." J.A. at 192 (parentheticals in

original). In a deposition, Chief Smith described his

procedure for handling complaints against the police

department. Chief Smith explained that, "[u]nder normal

circumstances, they [the complainants] could come in and

sit down with me and file
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that complaint with me . . . . We would take a statement

and then we'd do, like, file an affidavit. They would

sign that affidavit." Id. at 179. If Chief Smith was a

subject of the complaint, he would refer the complainant

to a different law enforcement agency. Id.

The appellee contends that there have been complaints

of excessive force levied against the Elaine Police

Department. In an affidavit signed May 10, 1996, Rosie

Cooper stated that:

I and my two children, Clifton Green and Anissia

Johnson, have complained of Melvin Marshall

using excessive force against Anissia and

Clifton. Both of my children testified in court

of the use of this excessive force. Larry Smith

was aware of our complaint. As far as I know,

nothing was done about the incident.

J.A. at 244.

Officer Marshall and Chief Smith moved for summary

judgment on the ground of qualified immunity. The

district court denied the motion, stating:

In this case, the facts surrounding the

shooting are contested. One issue in dispute is

whether the shooting was accidental. In sum,

this case is not appropriate for summary

judgment.

The defendants raise the affirmative defense

of qualified immunity. The plaintiff contends

that Charles Otey, a ninth-grade student, was

intentionally shot in the back as he ran from

Officer Marshall. This does not involve a legal
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premise that was unclear at the time of the

incident. Qualified immunity is inapplicable.
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Mem. Op. (Aug. 16, 1996) at 2, reprinted in Appellant's

Add. at 2. The district court did not specifically

address Chief Smith's qualified immunity from the

lawsuit. Chief Smith now appeals.

II.

The appellee challenges our jurisdiction in this

matter. We conclude that we may properly exercise

jurisdiction over this appeal.

Other than certain enumerated interlocutory

decisions, see 28 U.S.C. § 1292 (1994), this Court has

jurisdiction only over appeals of the final orders of

district courts. See 28 U.S.C. § 1291 (1994).

Accordingly, this Court normally does not have

jurisdiction over a district court's denial of a summary

judgment motion. See Miller v. Schoenen, 75 F.3d 1305,

1308 (8th Cir. 1996).

The Supreme Court has held, however, that certain

interlocutory orders "which finally determine claims of

right separable from, and collateral to, rights asserted

in the action, too important to be denied review and too

independent of the cause itself to require that appellate

consideration be deferred until the whole case is

adjudicated," may be treated as final for appellate

jurisdiction. Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949) (creating the collateral order

doctrine). A qualified immunity defense "shields

government agents from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights of which
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a reasonable person would have known." Behrens v.

Pelletier, 116 S. Ct. 834, 838 (1996) (quotations,

alterations, and citations omitted). This immunity is

"an entitlement not to stand trial or face the other

burdens of litigation, conditioned on the resolution of

the essentially legal immunity question." Id. at 838-39

(quotations, alteration, and citation omitted). In light

of this right not to face trial, the Supreme Court has

held that a district court's denial of a summary judgment

motion based on a qualified immunity defense, "to the

extent that it turns on an issue of law," is an
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immediately appealable decision under the collateral

order doctrine. Mitchell v. Forsyth, 472 U.S. 511, 530

(1985) (holding that the issue of whether a

constitutional right had been clearly established at the

time of its alleged violation is immediately appealable).

In Johnson v. Jones, 115 S. Ct. 2151 (1995), the

Supreme Court emphasized that, to immediately appeal a

denial of a summary judgment motion based on qualified

immunity, the issue immediately appealed must be a

question of law. See id. at 2158. The Johnson Court

held that an official defendant asserting a qualified

immunity defense could not immediately appeal a district

court's denial of summary judgment where the district

court's "order determines whether or not the pretrial

record sets forth a 'genuine' issue of fact for trial."

Id. at 2159. 

In Behrens, the Court clarified its holding in

Johnson, noting that a "[d]enial of summary judgment

often includes a determination that there are

controverted issues of material fact, and Johnson surely

does not mean that every such denial of summary judgment

is nonappealable." 116 S. Ct. at 842 (citation omitted).

Rather, Johnson held 

that determinations of evidentiary sufficiency

at summary judgment are not immediately

appealable merely because they happen to arise

in a qualified-immunity case; if what is at

issue in the sufficiency determination is

nothing more than whether the evidence could

support a finding that particular conduct

occurred, the question decided is not truly

"separable" from the plaintiff's claim, and
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hence there is no "final decision" under Cohen

and Mitchell. Johnson reaffirmed that summaryjudgment determinations are appealable when they

resolve a dispute concerning an abstract issue

of law relating to qualified immunity--

typically, the issue whether the federal right

allegedly infringed was clearly established . .

. .

Id. (quotations, alteration, and citations omitted).
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In the instant case, the district court denied

summary judgment to Officer Marshall because there

remains the question of material fact of whether Officer

Marshall intentionally shot Otey. See Mem. Op. at 2,

reprinted in Appellant's Add. at 2. Officer Marshall has

not appealed this decision, and we presume, for purposes

of this appeal, that Officer Marshall could be liable for

violating Otey's Fourth Amendment rights by unreasonably

seizing Otey through the use of deadly force. See

Tennessee v. Garner, 471 U.S. 1 (1985) (Fourth Amendment

prohibits use of deadly force to stop the escape of a

suspect who poses no threat).

That a question of material fact remains as to

Officer Marshall's liability does not, however, answer

whether Chief Smith has qualified immunity in this

matter. To overcome Chief Smith's entitlement to

qualified immunity, the appellee must allege, and present

evidence that could support, that Chief Smith himself

violated a well-established constitutional right of Otey.

Whether the appellee has met this burden does not require

this Court to weigh the sufficiency of the evidence to

support the appellee's claim against Chief Smith.

Rather, this question requires us to undertake the legal

analysis of whether the appellee's allegations and the

evidence presented, taken in the light most favorable to

the appellee, present a claim that Chief Smith violated

a well-established right of Otey. Under Mitchell, we

conclude that this Court has jurisdiction to determine

whether the appellee has met this burden. See 472 U.S.

at 530.
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In denying summary judgment to Chief Smith, the

district court did not specify what facts it assumed

regarding Chief Smith's right to qualified immunity and

what, if any, questions of material fact remain regarding

Chief Smith's right to qualified immunity. Accordingly,

it is somewhat difficult for this Court to "know what set

of facts to assume when [we] answer[] the purely legal

question about 'clearly established' law . . . ."

Johnson, 115 S. Ct. at 2159. In such a circumstance, the

Supreme Court has directed us "to undertake a cumbersome

review of the record to determine what facts the district

court, in the light most favorable to the nonmoving

party, likely assumed." Id.
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III.

The appellee has alleged that Chief Smith is liable

for violating Otey's constitutional rights because of

Chief Smith's alleged failure to train, supervise, and

discipline Officer Marshall. We conclude that Chief

Smith did not "violate clearly established statutory or

constitutional rights of which a reasonable person would

have known," Behrens, 116 S. Ct. at 838 (quotations and

citations omitted), and is therefore entitled to

qualified immunity for this claim.

Section 1983 liability cannot attach to a supervisor

merely because a subordinate violated someone's

constitutional rights. See City of Canton v. Harris, 489

U.S. 378, 385 (1989) ("Respondeat Superior or vicarious

liability will not attach under § 1983."). Rather, Chief

Smith can be liable for Officer Marshall's constitutional

violation only "if he directly participated in the

constitutional violation, or if his failure to train or

supervise the offending actor caused the deprivation . .

. ." Tilson v. Forrest City Police Dep't, 28 F.3d 802,

806 (8th Cir. 1994) (citations omitted).

There is no allegation in this case that Chief Smith

ordered Officer Marshall to shoot Otey or otherwise

directly participated in Officer Marshall's alleged

violation of Otey's constitutional rights. Rather, the

appellee alleges that Chief Smith is liable for failing

to supervise and train Officer Marshall. For Chief Smith

to have violated Otey's constitutional rights by failing

to supervise Officer Marshall, it must be shown that

Chief Smith:
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(1) Received notice of a pattern of

unconstitutional acts committed by subordinates;

(2) Demonstrated deliberate indifference to or

tacit authorization of the offensive acts;

(3) Failed to take sufficient remedial action;

and 
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(4) That such failure proximately caused injury

to [Otey].

Jane Doe A. v. Special Sch. Dist. of St. Louis County,

901 F.2d 642, 645 (8th Cir. 1990). 

In this case, the appellee has pointed to two pieces

of evidence that Chief Smith had received notice that

Officer Marshall was prone to using excessive force.

Officer Marshall had once fired warning shots to quell a

disturbance at a dance hall, an action that directly

violated Elaine Police Department procedure. In

addition, Rosie Cooper alleged in an affidavit that her

two children had complained of Officer Marshall using

excessive force and that Chief Smith knew of these

complaints. The appellee alleges that in neither of

these cases did Chief Smith discipline or counsel Officer

Marshall.

Assuming that these allegations are true, we conclude

that they fail to state a violation by Chief Smith of

Otey's constitutional rights. Officer Marshall's use of

warning shots did not put Chief Smith on notice that

Officer Marshal engaged in a pattern of unconstitutional

acts. While prohibited by Elaine Police Department

policy, Officer Marshall's use of warning shots simply

did not violate anyone's constitutional rights. Although

it may be an unwise practice to fire gunshots into the

air to quell an unruly crowd, there is no evidence that

Officer Marshall seized anyone--unconstitutionally or

otherwise--when he fired warning shots at the dance hall.

See J.A. at 226 (deposition of Officer Marshall)
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(testifying that, following warning shots, crowd

dispersed, and that no arrests were made).

Moreover, Rosie Cooper's affidavit does not state

when excessive force was allegedly used, what the alleged

excessive force consisted of, nor when the complaints of

excessive force were allegedly made. Without some

indication that these complaints were made prior to

Otey's death, there is simply no evidentiary support for

the allegation that Chief Smith was on notice of the

alleged violations. Without such
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notice, Chief Smith cannot be liable for Officer

Marshall's alleged constitutional violations.

In Harris, the Supreme Court explained that "the

inadequacy of police training may serve as the basis for

§ 1983 liability only where the failure to train amounts

to deliberate indifference to the rights of persons with

whom the police come into contact." 489 U.S. at 388. We

have held that:

It is necessary to show that in light of the

duties assigned to specific officers or

employees the need for more or different

training is so obvious, and the inadequacy so

likely to result in the violation of

constitutional rights, that the policymakers of

the city can reasonably be said to have been

deliberately indifferent to the need. In other

words, the plaintiff must demonstrate that the

city had notice that its procedures were

inadequate and likely to result in a violation

of constitutional rights.

Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996)

(quotations and citations omitted). 

Rather than demonstrating indifference to Otey's

constitutional right not to be seized unreasonably

through the use of deadly force, all of the evidence in

this case demonstrates that Chief Smith and the Elaine

Police Department had specifically trained Officer

Marshall only to use deadly force in a manner consistent

with the constitution. Compare Garner, 471 U.S. at 11

("Where the suspect poses no immediate threat to the

officer and no threat to others, the harm resulting from

failing to apprehend him does not justify the use of
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deadly force to do so."), with J.A. at 193 (Elaine Police

Department policy on use of deadly force) (deadly force

may be used only where a suspect has used, threatened to

use, or is likely to use deadly force against arresting

officer or third person). It is undisputed that the

policy had been communicated to Officer Marshall, and

that Officer Marshall had signed the Elaine Policy

Department policy, indicating that he had read and

understood the policy. See id.
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In sum, based on the facts alleged by the appellee,

Chief Smith did not violate any well-established

constitutional right held by Otey. Because Chief Smith

did not violate any well-established constitutional

right, he is entitled to qualified immunity for the

appellee's claims for civil damages. Accordingly, we

reverse the district court's denial of summary judgment

on the claims against Chief Smith in his private and

official capacities.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.