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 pol ice officer. The administrator of Otey's estate brought this 42-2-

U.S.C. § 1983 (1994) suit against Chief Smith, allegin g that C hief Smith had failed to supervise and train th e off icer who had killed Otey. Chief Smith moved th e di strict court for summary judgment on the ground o f qual ified immunity, and the district court denied th e motion. Chief Smith now appeals the district court' s denial of summary judgment, and we reverse.

I.
Elaine, Arkansas, is a small community near th e Mississippi border. On December 8, 1994, Ela ine's police forc e consisted of Chief Smith and two part-tim e officer s. One of these part-time officers was Melvi n Marsh all, who also worked as a janitor for the Elain e scho ol system. Pursuant to Arkansas state regulations , Offic er Marshall had taken a 100-hour law-enforcemen t training course to qualify as a part-time officer.

On the afternoon of December 8, 1994, Office r Marshall was off-duty and relaxing in his hom e in Elaine. At approximately 5:20 p.m., Officer Marshall hear d
seve ral gunshots somewhere in his neighborhood. Suc h gunshots were not uncommon in Officer Marshall' s neighborhood, and Officer Marshall had made i t a practice to investigate such gunshots when they occurred

. Acco rdingly, Officer Marshall placed his .357 magnu m service re volver in his pocket, picked up his badge, and went to investigate the shots.

Officer Marshall was told by a neighbor that th e shots had come from an alley near his house. Enterin g the alley, Officer Marshall saw two African-America n-3-

males at t he far end of the alley. Officer Marshall saw one of the se men fire a handgun into the air. The shots
we re then answered by several gunshots from a nearb y housingOfficer Marshall offered this version of events during his deposition. SeeJ.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. SeeAppellee's Br. at 1. Contrary to the appellee's apparen t 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 c hance that a jury will disregard all evidence and accept the unsupported speculation of a party litigant.").
-4- project. The men then left th e alley. Officer Marshall 1 drew his service revolver from his pocket, co cked it, and held it inthe 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, t o try to cut them off.

At th is time, Otey, who was fifteen years old, an d his fourteen-year-old friend Cyrus Thomas were on a near bystreet running from the gunshots. Office r Marshall s aw the two boys running and yelled for them to stop. Thomas heard the order and stopped, while Ote y continued running. Officer Marshall's service revolve r discharged, and Otey was shot in the back.

Officer Marshall con tends that he jumped a four-foot ditc hbetween the empty lot and the street. Office r Marshal l alleges that his foot slipped when he lande d after his jump. As he recovered his balance, his weapon disc harged accidentally. See J.A. at 107-10. Severa l witnesses support this version of the facts. See id. at 139 (signe d 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."); 14 4-5-

(statement of Alvin White) ("I saw Melvin [Ma rshall] jump the dit ch and I saw him almost fall[;] it was like h e almost slipped backwards. The shot was when Melvin wa s at the ditch.").Arkansas State Police Field Investigator Barry Roy, who investigated th e 2 sho oting, allegedly transcribed a statement from Earnestine Broadus that wa s co nsiderablydifferent from her affidavit. In the statement, Broadus allegedly tol d Investi gator 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 1 40. 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 arme d, 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.
-6- The appellee contends that Officer Marshall shot Ote y int entionally. Several witnesses also support thi s version of the facts. See J.A. at 204 (affidavit o f Earn estine Broadus) ("I was looking directly at Melvi n 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 o n Lee Street, which is paved.") ; 212 (deposition of Cyrus 2 Thomas) (testifying that, although he did not see Officer Mars hall fire his service revolver, Thomas looked a t Officer Marshall immediately after Officer Ma rshall fired and that O fficer Marshall did not "appear to have fallen or tripped or done anything").

Otey fell to the street after being shot. Office r Mars hall then retrieved a loaded .25 caliber automati c pistol from Otey's back pocket. Otey subsequently died 3 from his gunshot wound.

Chief Smith was imme diately notified of the shooting by Officer Marshall. Chief Smith contacted the Arkansas-7-

State Police and turned the investigation of the shooting over to them. Officer Marshall was put on administrative leave during the pendency of the investigatio n, 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 o f Cha rles Otey and other citizens by his failure to adequately train , supervise, and discipline O fficer Melvin Marshall and other officers; and in his failure to take prev entative or remedial measures to prevent acts of violenceby officers under his command, having knowledge of suc h 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
-8- Investigator Roy arr ived in Elaine on the evening of Decem ber 8, 1994. Investigator Roy interviewe d witn esses, took a statement from Officer Marshall, an d searched t he area of the shooting for physical evidence. Based on h is investigation, Investigator Roy declined to arrest Off icer Marshall in connection with the shooting. On D ecember 29, 1994, the prosecuting attorney for th e Firs t Judicial District of Arkansas also declined t o br ing criminal charges against Officer Marshall i n connection with the shooting.
On July 21, 1995, Vi rgie Otey, who was Otey's mother and w ho is also the administrator of Otey's estate , br ought § 1983 and pendant state tort claims agains t Officer Ma rshall and Chief Smith in their individual and of ficial capacities. The § 1983 action alleged tha t Officer Marshall had unreasonably seized Otey, i n vio lation of the Fourth Amendment, by intentionall y shooting h im. The lawsuit also alleged that Chief Smith
was deliberately indifferent to Otey's constitutiona l righ ts by failing to adequately train and supervis e Officer Marshall. 4propensities for violent misconduct, and other violations of citizens[' ]

con stitutionalrights by Officer Melvin Marshall, and was deliberatel y 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 amountingto acquiescence and indifference to violations of citizens['] constitutional rights.
Th e deliberate indifference herein was in accordance with th e customs, policies, and procedures of the city of Elaine, Arkansas Police Department and Chief Larry Smith. Compl. at ¶¶ 14-17 (paragraph numeration omitted), reprinted inJ.A. at 10-11.
-9- It was revealed during discovery that the Elain e Police Department had a policy on the use of deadly force in pl ace at the time of Otey's shooting. This polic y provided that:

Use of deadly Force by a member of thi s Depar tment against a person is limited to th e following:
(1) To effect an arrest or to prevent th e escape from custody of an arrested person, who, the o fficer reasonably believes: (a) ha s committed or attempted to commit a felony, (b) which involved the use or threatened use o f deadl yforce and (c) the felon canno t other[wise] be apprehended.
(2) To effect an arrest or to prevent th e escap e from custody of an arrested person wh o-10-

the officer reasonably believes: (a) ha s commi tted or attempted to commit a felony, (b ) would use deadly force if not immediatel y apprehended, and (c) the felon cannot otherwise be apprehended. (3) To defend himself or a third perso n from what he reasonably believ e to be the use or imminent use of deadly force.Chief Smith asserts that deadly force has not been used by an Elaine polic e 5 officer during the past five years, except for Officer Marshall's alleged use of deadly force against Otey. SeeAppellant's Br. at 16-1 7. 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.
-11-

(4) No deadly force may be used against an escaping misdemeanant.

(5 ) The use of "warning shots" i s prohibited.

J.A

. at 193. On February 2, 1992, Officer Marshal l signed a statement that he had read and understood th e policy. 5

Inhis deposition, Officer Marshall testified that h e had on ce violated the city's policy against the use o f warning sh ots. See J.A. at 225-26. While investigating a disturbance at a dance hall, Officer Marsha ll had fired two shots in the air to disperse a hostile crowd after a bottle had been thrown at the officer. See i d. Although Chief Smith was aware of the incident, he did no t discipline or counsel Officer Marshall for the violation of the policy.
On April 24, 1996, C arolyn Dunigan, the Recorder for the City of Elaine, described in an affidavit the results of h er search of city records. Dunigan stated that , although the records listed 920 citizen conta cts with the police over the last five years, including 695 arrests , "[n]o citizen complaints about excessive forc e (deadly or other wise) have been made against any member of th e-12-

Elaine Police Department, including Melvin Marshall, i n the last five (5) years." J.A. at 192 (paren theticals in orig inal). In a deposition, Chief Smith described hi s proc edure for handling complaints against the polic e department . Chief Smith explained that, "[u]nder normal circumstan ces, they [the complainants] could come in and sit down with me and file-13-

that compl aint with me . . . . We would take a statement and then we'd do, like, file an affidavit. They woul d 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 complaint s of e xcessive force levied against the Elaine Polic e Departm ent. In an affidavit signed May 10, 1996, Rosi e Cooper stated that:
I and my two children, CliftonGreen and Anissia Johnson, have complained of Melvin Marshal l using excessive force against Anissia an d Clifton. Both of my children testified in court of the use of this excessive f orce. 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 summar y judgment on the ground of qualified immunity. Th e district court denied the motion, stating:

In this case, the facts surrounding th e shooting are contested. One i ssue in dispute is wheth er the shooting was accidental. In sum , this case is not appropriate for summar y judgment.
The defendants raise the affirmative def ense of q ualified immunity. The plaintiff contend s tha t Charles Otey, a ninth-grade student, wa s int entionallyshot in the back as he ran fro m Officer Marshall. This does n ot involve a legal-14-

premise that was unclear at the time of th e incident. Qualified immunity is inapplicable.-15-

Mem. Op . (Aug. 16, 1996) at 2, reprinted in Appellant' s Add

. at 2. The district court did not specificall y address Chief Smith's qualified immunity from th e lawsuit. Chief Smith now appeals.

II.

The appellee challenges our jurisdiction in thi s matter. We conclude that we may properly exercis e jurisdiction over this appeal.

Oth er than certain enumerated interlocutor y decisi ons, see 28 U.S.C. § 1292 (1994), this Court ha s jurisdi ction only over appeals of the final orders o f dist rict courts. See 28 U.S.C. § 1291 (1994)

. Acco rdingly, this Court normally does not hav e jurisdicti on over a district court's denial of a summary judgmen t motion. See Miller v. Schoenen , 75 F.3d 1305 , 1308 (8th Cir. 1996).

The Supreme Court has held, however, that certai n interlocutory orders "which finally determine claims o f right sepa rable from, and collateral to, rights asserted in the act ion, too important to be denied review and too independent of the cause itself to require th at appellate
cons ideration be deferred until the whole case i s adju dicated," may be treated as final for appellat e jurisdiction. Cohen v. Beneficial Indus. Loa n Corp. , 337 U.S. 541, 546 (1949) (creating the collateral orde r doctrine). A qualified immunity defense "shield s go vernment agents from liability for civil damage s inso far as their conduct does not violate clearl y established statutory or constitutional rights of whic h-16-

a reasonable person would have known." Behrens v

. Pell etier , 116 S. Ct. 834, 838 (1996) (quotations , alte rations, and citations omitted). This immunity i s "an entitlement not to stand trial or face the othe r burd ens of litigation, conditioned on the resolution o f the essent ially legal immunity question." Id. at 838-39 (quotations, alteration, and citation omitted ). In light of this right not to face trial, the Supreme Court ha s held that a district court's denial of a summ ary judgment motion based on a qualified immunity defense, "to th e extent that it turns on an issue of law," is an-17-

immediatelyappealable decision under the collatera l order d octrine. Mitchell v. Forsyth , 472 U.S. 511, 53 0 (198 5) (holding that the issue of whether a constituti onal right had been clearly established at the time of its alleged violation is immediately appealable).

In Johnson v. Jones , 115 S. Ct. 2151 (1995), th e Supr eme Court emphasized that, to immediately appeal a deni al of a summary judgment motion based on qualifie d immu nity, the issue immediately appealed must be a questio n of law. See id. at 2158. The Johnson Cour t held that an official defendant asserting a qualifie d immunity d efense could not immediately appeal a district
cour t's denial of summary judgment where the distric t
cour t's "order determines whether or not the pretria l record sets forth a 'genuine' issue of fact for trial. " Id. at 2159.

In Behrens , the Court clarified its holding i n John son , noting that a "[d]enial of summary judgmen t oft en includes a determination that there ar e controvert ed issues of material fact, and Johnson surely does not m ean that everysuch denial of summary judgment is nonappealable." 116 S. Ct. at 842 (citati on omitted). Rather, Johnson held

that determinations of evidentiary sufficienc y at summary judgment are not immediatel y appe alable merely because they happen to aris e in a qualified-immunity case; if what is a t issue in the sufficiency determination i s no thing more than whether the evidence coul d support a finding that particular conduc t occurred, the question decided is not trul y "separable" from the plaintiff's claim, an d-18-

hence there is no "final decision" under Cohe n and Mitchell

. Johnson reaffirmed that summaryjudgment determinations are ap pealable when they reso lve a dispute concerning an abstract issu e of law relating to qualified immunity-

- typi cally, the issue whether the federal righ t allegedlyinfringed was clearly established

. .

. .
Id. (quotations, alteration, and citations omitted).-19-

In the instant case, the district court denie d
su mmaryjudgment to Officer Marshall because ther e remains th e question of material fact of whether Officer Marsh all intentionally shot Otey. See Mem. Op. at 2 , reprinted inAppellant's Add. at 2. Officer Marshall has not appeal ed this decision, and we presume, for purposes of this appeal, that Officer Marshall could b e liable for violating Otey's Fourth Amendment rights by unreasonably seizi ng Otey through the use of deadly force. Se e Tennessee v. Garner , 471 U.S. 1 (1985) (Fourth Amendment prohi bits use of deadly force to stop the escape of a suspect who poses no threat).

That a question of material fact remains as t o Officer Marshall's liability does not, however, answe r whet her Chief Smith has qualified immunity in thi s matt er. To overcome Chief Smith's entitlement t o qualified immunity, the appellee must allege, and present evid ence that could support, that Chief Smith himsel f violated a well-established constitutional ri ght of Otey. Whether the appellee has met this burden does not require this C ourt to weigh the sufficiency of the evidence t o support the appellee's claim against Chief Smith

. Rather, th is question requires us to undertake the legal anal ysis of whether the appellee's allegations and th e evidence p resented, taken in the light most favorable to the appellee, present a claim that Chief Smith violate d
a well- established right of Otey. Under Mitchell , w e conc lude that this Court has jurisdiction to determin e wheth er the appellee has met this burden. See 472 U.S

. at 530.-20-

In denying summary judgment to Chief Smith, th e di strict court did not specify what facts it assume d rega rding Chief Smith's right to qualified immunity an d what, if any, questions of material fact rema in regarding Chief Smit h's right to qualified immunity. Accordingly, it is somewhat difficult for this Court to "k now what set of fac ts to assume when [we] answer[] the purely lega l que stion about 'clearly established' law . . . . " Johnson , 115 S. Ct. at 2159. In such a circumstance, the Supreme Co urt 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 nonmovin g party, likely assumed." Id.-21- III.

The app ellee has alleged that Chief Smith is liabl e for v iolating Otey's constitutional rights because o f Chie f Smith's alleged failure to train, supervise, an d disc ipline Officer Marshall. We conclude that Chie f Smit hdid not "violate clearly established statutory o r constituti onal rights of which a reasonable person would have kn own," Behrens , 116 S. Ct. at 838 (quotations an d citations omitted), and is therefore entitled t o qualified immunity for this claim.

Section 1983 liabili ty cannot attach to a supervisor merelybecause a subordinate violated someone' s constitutional rights. See City of Canton v. Harris , 489 U.S. 378, 385 (1989) (" Respondeat Superior or vicariou s liability will not attach under § 1983."). R ather, Chief Smith can be liable for Officer Marshall's co nstitutional viol ation only "if he directly participated in th e constitutional violation, or if his failure to train o r 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 allegati on in this case that Chief Smith orde red Officer Marshall to shoot Otey or otherwis e directlyparticipated in Officer Marshall's allege d viol ation of Otey's constitutional rights. Rather, th e appellee alleges that Chief Smith is liable for failin g to supervise and train Officer Marshall. For Chief Smith to have vi olated Otey's constitutional rights by failing to supervise Officer Marshall, it must be shown tha t Chief Smith:-22-

(1) Received notice of a pattern o f unconstitutional acts committe d by subordinates;
(2) Demonstrated deliberate indifference to or tacit authorization of the offensive acts;
(3) Failed to take sufficient remedial action; and-23-

(4) That such failure proxima tely 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 ap pellee has pointed to two pieces of evid ence that Chief Smith had received notice tha t Offi cer Marshall was prone to using excessive force

. Officer Ma rshall had once fired warning shots to quell a di sturbance at a dance hall, an action that directl y violated Elaine Police Department procedure. I n addition, Rosie Cooper alleged in an affidavit that he r two children had complained of Officer Marshall usin g excessive force and that Chief Smith knew of thes e co mplaints. The appellee alleges that in neither o f these cases did Chief Smith discipline or cou nsel Officer Marshall.
Assuming that these allegations are true, we conclud e that they fail to state a violation by Chief Smith o f Otey's con stitutional rights. Officer Marshall's use of
warn ing shots did not put Chief Smith on notice tha t Officer Ma rshal engaged in a pattern of unconstitutional acts

. While prohibited by Elaine Police Departmen t poli cy, Officer Marshall's use of warning shots simpl y did not violate anyone's constitutional right s. Although it may be an unwise practice to fire gunshots into th e air t o quell an unruly crowd, there is no evidence tha t Off icer Marshall seized anyone--unconstitutionally o r otherwise--when he fired warning shots at the dance hall. See J.A. at 226 (deposition of Officer Marshall )-24-

(testifying that, following warning shots, crow d dispersed, and that no arrests were made).

Moreover, Rosie Cooper's affidavit does not stat e when excessive force was allegedly used, what the alleged excessive force consisted of, nor when the complaints of
exce ssive force were allegedly made. Without som e indi cation that these complaints were made prior t o Otey's dea th, there is simply no evidentiary support for the allegation that Chief Smith was on notice of th e alleged violations. Without such-25-

noti ce, Chief Smith cannot be liable for Office r Marshall's alleged constitutional violations.

In H arris , the Supreme Court explained that "th e inadequacy

of police training may serve as the basis for § 1983 lia bility only where the failure to train amounts to deliber ate 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 th e duties assigned to specific officers o r empl oyees the need for more or differen t train ing is so obvious, and the inadequacy s o likelyto result in the violation o f constitutional rights, that the policymakers o f the ci ty can reasonably be said to have bee n deliberatelyindifferent to the need. In other word s, the plaintiff must demonstrate that th e city had notice that its procedures wer e inade quate and likely to result in a violatio n of constitutional rights.

Andre ws v. Fowler , 98 F.3d 1069, 1076 (8th Cir. 1996 ) (quotations and citations omitted).

Rather than demonstrating indifference to Otey' s co nstitutional right not to be seized unreasonabl y throu gh the use of deadly force, all of the evidence i n this case demonstrates that Chief Smith and the Elain e Police Department had specifically trained Office r Marshall o nly to use deadly force in a manner consistent with t he constitution. Compare Garner , 471 U.S. at 1 1 (" Where the suspect poses no immediate threat to th e officer an d no threat to others, the harm resulting from fail ing to apprehend him does not justify the use o f-26-

deadly force to do so."), withJ.A. at 193 (E laine Police Department policy on use of deadly force) (deadly forc e may be use d only where a suspect has used, threatened to use, or is likely to use deadly force against arrestin g offi cer or third person). It is undisputed that th e poli cyhad been communicated to Officer Marshall, an d that Officer Marshall had signed the Elaine Polic y Depa rtment policy, indicating that he had read an d understood the policy. See id.-27-

In sum , based on the facts alleged by the appellee , Chief Smith did not violate any well-establishe d constitutional right held by Otey. Because Chief Smit h did not violate any well-established constitutiona l right , he is entitled to qualified immunity for th e appe llee's claims for civil damages. Accordingly, w e reve rse the district court's denial of summary judgmen t
on t he claims against Chief Smith in his private an d official capacities.

A true copy.

Attest:

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

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