In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2495

DEBRA JENKINS, Mother, Special

Administrator and Personal

Representative of the Estate

of Larry Jerome Jenkins, ESTATE

OF LARRY JEROME JENKINS,

BRIANA L. JENKINS-BENNING,

Decedent’s Minor Child, et al.,

Plaintiffs-Appellants,

v.

JON BARTLETT,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 C 1136—David R. Herndon, Judge.

____________

ARGUED DECEMBER 8, 2006—DECIDED APRIL 23, 2007

____________

Before EASTERBROOK, Chief Judge, and POSNER and RIPPLE,

Circuit Judges.

RIPPLE, Circuit Judge. Debra Jenkins, on behalf of the

estate of her son, Larry Jenkins, filed this action under 42

U.S.C. § 1983 against Jon Bartlett, a police officer in the

Milwaukee Police Department (“MPD”). She alleged that
2 No. 06-2495

1 Originally, Ms. Jenkins also brought claims on behalf of

herself and Mr. Jenkins’ children for loss of society and companionship. The district court dismissed the claims brought on

behalf of Mr. Jenkins’ children, determining that Ms. Jenkins

lacked standing to assert their claims. The district court later

granted Officer Bartlett’s motion to dismiss Ms. Jenkins’

personal claim for loss of society and companionship following our decision in Russ v. Watts, 414 F.3d 783 (7th Cir. 2005),

which held that surviving parents had no independent constitutional right to recover for loss of society and companionship

of an adult child incidental to state action. Id. at 791. Ms. Jenkins

does not appeal these rulings.

Officer Bartlett had violated Mr. Jenkins’ constitutional

rights through the use of excessive force when he shot and

killed Mr. Jenkins as he attempted to flee custody.1

 Ms.

Jenkins also brought § 1983 claims against the City of

Milwaukee (“City”) and Arthur Jones, the Chief of the

MPD at the time Mr. Jenkins was shot, under Monell v.

Department of Social Services, 436 U.S. 658, 694 (1978). She

alleged that the City and Chief Jones were deliberately

indifferent to Mr. Jenkins’ constitutional rights in the

training and supervision of Milwaukee police officers

with respect to the use of deadly force on suspects in

vehicles (“Monell claims”). The district court granted

summary judgment in favor of the City and Chief Jones on

Ms. Jenkins’ Monell claims and, following a trial, a jury

found that Officer Bartlett had not violated Mr. Jenkins’

constitutional rights. Ms. Jenkins appeals the district

court’s grant of summary judgment in favor of the City

and Chief Jones on her Monell claims. Ms. Jenkins also

appeals two of the district court’s evidentiary rulings. For

the reasons set forth in this opinion, we affirm the judgment of the district court.
No. 06-2495 3

I

BACKGROUND

A.

On the night of September 19, 2002, Officer Bartlett

was on duty with Officer Kurt Lacina. Officers Bartlett

and Lacina stopped a black Jeep that they suspected of

involvement in drug-related activity. As the officers

approached, Mr. Jenkins exited the vehicle. Officer Bartlett

searched him for weapons and decided to place him in the

squad car while the officer completed his investigation.

Before he could be secured in the car, Mr. Jenkins fled on

foot and Officer Bartlett, also on foot, pursued him. After

a one- to two-minute pursuit, Mr. Jenkins entered an

occupied vehicle.

Believing that Mr. Jenkins was attempting to car-jack the

vehicle, Officer Bartlett drew his service weapon and

approached the vehicle from the front. Mr. Jenkins now

was in the driver’s seat behind the steering wheel. The

vehicle moved toward Officer Bartlett and struck the

officer. Accounts differ as to the speed at which the

vehicle was traveling and whether the vehicle swerved

to strike him. When the vehicle struck Officer Bartlett,

he was thrown onto the vehicle’s hood. Officer Bartlett

then fired nine shots into the vehicle, seven of which

struck Mr. Jenkins. Mr. Jenkins died of his wounds.

After the shooting, pursuant to MPD policy, Officer

Bartlett was taken to MPD detective bureau headquarters,

and an investigation was begun immediately by both the

criminal and Internal Affairs divisions of MPD. As was

department custom, Bradley DeBraska, the police liaison

officer for the City and president of the Milwaukee Police

Association, was contacted following the shooting.
4 No. 06-2495

DeBraska and an attorney appointed by the police officers’

association, Jonathan Cermele, met Officer Bartlett at

MPD headquarters. Throughout the evening, DeBraska

gathered information and advised Cermele as the attorney prepared to represent Officer Bartlett during his

interview with Internal Affairs.

The results of the criminal investigation were sent to the

Milwaukee County District Attorney’s Office. The district

attorney found no basis to file criminal charges against

Officer Bartlett. The investigation by Internal Affairs

concluded that Officer Bartlett had not violated any MPD

policy in the course of the shooting.

B.

Ms. Jenkins then brought this action on behalf of Mr.

Jenkins’ estate. She alleged that Officer Bartlett’s use of

deadly force was excessive and had violated Mr. Jenkins’

Fourth Amendment rights. She also alleged that the City

and Chief Jones had exhibited deliberate indifference to

Mr. Jenkins’ constitutional rights by failing to train properly and to supervise MPD officers with respect to the

exercise of deadly force on suspects in vehicles. She based

this claim on MPD’s alleged failure to train properly its

officers according to MPD’s own training bulletins for

approaching and exercising deadly force on suspects in

vehicles. She also pointed to past incidents in which

MPD officers had used deadly force on suspects in vehicles.

As the case proceeded, the district court set November 1,

2003 as the deadline for Officer Bartlett, the City and Chief

Jones (collectively, “defendants”) to provide Ms. Jenkins

the disclosures related to expert witnesses required by Rule
No. 06-2495 5

2 The deadline originally was set for October 1, 2003, but the

district court extended the deadline to November 1, 2003. See

R.42.

26(a)(2) of the Federal Rules of Civil Procedure.2 On

October 1, 2003, Susan Lappen, the attorney for the defendants, sent Ms. Jenkins’ attorney a letter that identified

the expert witnesses the defendants expected to call, their

anticipated testimony and the bases for the opinions to

which the experts would testify, including the autopsy

protocol the defendants previously had provided to Ms.

Jenkins. This letter identified Dr. Jeffrey Jentzen, the

Milwaukee County Medical Examiner, and Dr. Mary

Mainland, an Assistant Medical Examiner, as potential

experts; these physicians had been involved in the autopsy

of Mr. Jenkins and in a reconstruction of the shooting.

Attached to the letter, Attorney Lappen included each

physician’s curriculum vitae. Neither physician signed

the letter, but both subsequently provided sworn affidavits adopting the contents of the letter.

Ms. Jenkins objected to the proposed testimony of the

physicians. She submitted that the defendants’ disclosures

did not satisfy Rule 26(a)(2)(B)’s requirement for an expert

report. The objection did not specify the deficiencies of

the disclosure. The district court denied the motion, noting that Ms. Jenkins had not stated the basis for her

objection and that the physicians subsequently had

adopted Lappen’s letter by sworn affidavit that had

cured any defect in the report.

The defendants then moved for summary judgment. The

district court denied Officer Bartlett’s motion for summary judgment based on the defense of qualified immunity: It held that genuine issues existed as to the reason-
6 No. 06-2495

ableness of the use of deadly force. The district court

granted summary judgment in favor of the City and Chief

Jones: It held that Ms. Jenkins had “failed to articulate

any deficiency in the training of MPD officers” or in the

inadequacy of investigations of prior incidents in which

MPD officers had exercised deadly force on suspects in

vehicles. R.99 at 13. After this order, only Officer Bartlett

remained as a defendant.

Before trial, the judge originally assigned to the case,

Judge Stadtmueller, was replaced by Judge Herndon. After

Judge Herndon assumed responsibility for the case, Ms.

Jenkins again moved to exclude the testimony of Dr.

Mainland, again arguing that Lappen’s October 1, 2003

letter did not “comply with the rules for an expert report”

and added that Dr. Mainland’s opinions were not “rationally based” and had “no relevance other than being

highly suggestive.” R.125 at 5-6. Judge Herndon denied

the motion, noting that Ms. Jenkins had not shown any

cause to disturb Judge Stadtmueller’s earlier decision. At

trial, Ms. Jenkins again attempted to exclude Dr. Mainland’s testimony. She contended that the basis for Dr.

Mainland’s proposed opinion testimony about the position in which Mr. Jenkins was sitting when he was shot

did not satisfy the standard of Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), for reliability of

expert testimony. The district court denied Ms. Jenkins’

motion.

Ms. Jenkins also sought to call DeBraska and Cermele as

witnesses. Officer Bartlett objected, asserting attorneyclient privilege and work product protection. After taking

testimony on the matter, the district court ruled that

DeBraska’s presence during Officer Bartlett’s conversations with Cermele did not destroy the attorney-client
No. 06-2495 7

privilege because DeBraska was acting as Cermele’s agent

by assisting Cermele in rendering legal services to Officer

Bartlett. Therefore, the district court held, Ms. Jenkins

could not call DeBraska or Cermele to testify.

The jury returned a verdict in favor of Officer Bartlett.

Ms. Jenkins now appeals.

II

DISCUSSION

Ms. Jenkins raises three issues on appeal. First, Ms.

Jenkins submits that the district court erred when it

allowed Drs. Jentzen and Mainland to testify as expert

witnesses because the defendants had failed to provide

an expert report that satisfied Federal Rule of Civil Procedure 26(a)(2)(B) and because their testimony did not

satisfy the Daubert standard for reliability of expert testimony offered under Federal Rule of Evidence 702. Next,

she contends that the district court erred when it sustained Officer Bartlett’s claim of attorney-client privilege

despite DeBraska’s presence during conversations between Officer Bartlett and Cermele. Lastly, Ms. Jenkins

challenges the district court’s grant of summary judgment on her Monell claims against the City and Chief Jones.

We shall address each of these issues.

A. Expert Testimony

Ms. Jenkins contends that the district court erred when

it permitted Drs. Jentzen and Mainland to testify as experts on behalf of Officer Bartlett. She raises two separate

objections to the district court’s ruling that permitted the

physicians to testify as experts. First, she contends that the
8 No. 06-2495

physicians’ testimony should have been barred because

Officer Bartlett failed to provide an expert report that

satisfied Federal Rule of Civil Procedure 26(a)(2)(B).

Second, Ms. Jenkins submits that the physicians’ testimony

should have been excluded under Federal Rule of Evidence 702 because it failed to satisfy the Daubert standard

for reliability of expert testimony.

1. Federal Rule of Civil Procedure 26(a)(2)(B)

Rule 26(a)(2) requires parties to disclose the name of any

person the party may call to testify as an expert under

Federal Rule of Evidence 702. Fed. R. Civ. P. 26(a)(2)(A).

When the potential witness “is retained or specially

employed to provide expert testimony in the case or

whose duties as an employee of the party regularly involve giving expert testimony,” the disclosure must also

include a “written report prepared and signed by the

witness.” Fed. R. Civ. P. 26(a)(2)(B). This report must

include:

a complete statement of all opinions to be expressed

and the basis and reasons therefor; the data or other

information considered by the witness in forming the

opinions; any exhibits to be used as a summary of or

support for the opinions; the qualifications of the

witness, including a list of all publications authored by

the witness within the preceding ten years; the compensation to be paid for the study and testimony; and

a listing of any other cases in which the witness has

testified as an expert at trial or by deposition within

the preceding four years.

Id. The purpose of the report is to “set forth the substance

of the direct examination.” Fed. R. Civ. P. 26 advisory
No. 06-2495 9

3 Ms. Jenkins did not state any basis for her objection to the

expert report. See R.74 at 9. The district court noted that the

absence of the physicians’ signatures from the letters left the

reports in technical noncompliance with Rule 26(a)(2)(B), but

further noted that Ms. Jenkins provided no authority that

would support excluding the physicians’ testimony in light of

the physicians’ subsequent affidavits adopting the contents of

the letter. Id. at 10. Ms. Jenkins renewed this objection after

Judge Herndon replaced Judge Stadtmueller, again without

stating how the report failed to comply with Rule 26(a)(2)(B).

See R.125 at 5. Judge Herndon denied this motion, noting that

Ms. Jenkins had provided no reason to justify reconsideration

of Judge Stadtmueller’s order. R.135 at 3-4.

committee’s note. The required disclosures must be made

within the time frame directed by the court. Fed. R. Civ. P.

26(a)(2)(C). A party is barred from using at trial evidence that it failed to disclose “without substantial justification” as required by Rule 26(a), unless that failure

was harmless. Fed. R. Civ. P. 37(c)(1) & advisory committee’s note.

To comply with this rule, the defendants submitted a

letter on October 1, 2003 prepared by their attorney. The

letter identified Drs. Jentzen and Mainland as expert

witnesses, provided each witness’ curriculum vitae, and

stated the expected testimony and the basis for that

testimony, including the autopsy protocol which already

had been provided to Ms. Jenkins. Ms. Jenkins received

this letter within the time designated by the court. Although the letter was not prepared or signed by either

physician, both physicians subsequently submitted affidavits adopting the contents of the letter. The district

court held there had been substantial compliance with

Rule 26(a)(2).3 See R.74 at 9-10.
10 No. 06-2495

Ms. Jenkins now appeals this ruling. We review a district court’s discovery rulings on the exclusion of expert

testimony for an abuse of discretion. Musser v. Gentiva

Health Servs., 356 F.3d 751, 755 (7th Cir. 2004). We shall

not find an abuse of discretion unless “(1) the record

contains no evidence upon which the court could have

rationally based its decision; (2) the decision is based on

an erroneous conclusion of law; (3) the decision is based on

clearly erroneous factual findings; or (4) the decision

clearly appears arbitrary.” Id. (quoting Sherrod v. Lingle,

223 F.3d 605, 610 (7th Cir. 2000)) (internal quotation

marks omitted).

The district court did not abuse its discretion by permitting Drs. Jentzen and Mainland to testify despite any

shortcomings in the expert report submitted by the defendants. With the exception of the physicians’ signatures, the

letter substantially complied with Rule 26(a)(2)(B). The

letter stated the opinions to which the physicians

would testify and the basis for those opinions, invited

Ms. Jenkins’ attention to the autopsy protocol which she

already had received, disclosed prior testimony by Dr.

Jentzen in federal court, and set forth the physicians’

qualifications and publications in their respective curriculum vitae. Further, the plaintiffs cured the main defect

in the expert report, the absence of the physicians’ signatures, by submitting sworn affidavits from the physicians

adopting the contents of the October 1, 2003 letter. Under

these circumstances, the district court did not abuse its

discretion by holding that any shortcoming in the defendants’ disclosure was harmless.
No. 06-2495 11

4 Ms. Jenkins does not appear to challenge Dr. Jentzen’s testimony under Federal Rule of Evidence 702.

2. Daubert Standard

Ms. Jenkins also contends that Dr. Mainland’s testimony

should have been excluded under Federal Rule of Evidence

702.4

 Under the Daubert gatekeeping requirement, the

district court has a duty to ensure that expert testimony

offered under Federal Rule of Evidence 702 is both relevant and reliable. See Kumho Tires Co. v. Carmichael, 526

U.S. 137, 147 (1999). The goal of Daubert is to assure that

experts employ the same “intellectual rigor” in their

courtroom testimony as would be employed by an expert

in the relevant field. Id. at 152. Whether proposed expert

testimony is sufficiently reliable under Rule 702 is dependent upon the facts and circumstances of the particular case.

See id. at 150.

The fact-specific nature of the Daubert gatekeeping

inquiry vests considerable latitude in the trial court, both

in determining the method by which the reliability of the

proposed expert testimony will be measured and

whether the testimony is, in fact, reliable. Id. at 152. To

ensure that the trial court has fulfilled its gatekeeping

responsibility, while still affording it the necessary latitude

to meet the circumstances of the case, we employ a twopart inquiry. Ammons v. Aramark Unif. Servs., Inc., 368 F.3d

809, 816 (7th Cir. 2004). First, we review de novo the

district court’s application of the Daubert framework, i.e.,

whether the district court assessed the reliability and

relevance of the proffered testimony. Id. If the district

court properly applied the Daubert framework, we then

review the district court’s ultimate decision to admit or to

exclude the testimony for an abuse of discretion. Id.
12 No. 06-2495

5 Ms. Jenkins does not contend that Dr. Mainland’s testimony

was not relevant.

Ms. Jenkins submits that Dr. Mainland’s opinion was

not reliable because it was based on speculation. Prior to

trial, Ms. Jenkins objected to Dr. Mainland’s testimony on

the ground that it was “not rationally based,” “highly

suggestive” and likely to confuse the jury; she offered no

further explanation. R.125 at 6. At trial, Ms. Jenkins contended that Dr. Mainland’s opinion testimony based on

Dr. Mainland’s reconstruction of the shooting was not

reliable because Dr. Mainland had not done a “dimensionally analysis” as part of the reconstruction. R.203 at 3.

Ms. Jenkins noted that, by Dr. Mainland’s own admission,

Dr. Mainland did not know whether Officer Barlett had

fired from the ground or from the hood of the vehicle. See

id. at 4, 6. As a result, Ms. Jenkins submitted, Dr. Mainland’s opinion testimony was nothing more than “conjecture and speculation.” Id. at 6. In response, Officer Bartlett

pointed to Dr. Mainland’s qualifications, her personal

knowledge gained from conducting the autopsy of Mr.

Jenkins and her investigation of the vehicle in which Mr.

Jenkins was shot. Id. at 5. The district court noted that it

had applied the Daubert analysis when it denied Ms.

Jenkins’ pre-trial motion and again denied her motion.

Id. at 6-7.

The record makes clear that the district court directed

its inquiry into the reliability of the proffered testimony.5

As the proponent of Dr. Mainland’s testimony, Officer

Bartlett provided the court with ample grounds to find Dr.

Mainland’s testimony reliable. Although, at trial, Ms.

Jenkins identified what she believed to be shortcomings

in Dr. Mainland’s reconstruction of the shooting, she did
No. 06-2495 13

not explain how these alleged shortcomings would affect

the reliability of Dr. Mainland’s conclusions. No attempt

was made to show that the absence of these analyses

caused Dr. Mainland’s investigation to fall below the

level of intellectual rigor employed by an expert in the

field. For example, although Ms. Jenkins seemed to find

it significant that Dr. Mainland could not say whether

Officer Bartlett had fired from the ground or from the

hood of the car, Ms. Jenkins did not explain how such

knowledge, or the lack thereof, would affect the reliability of Dr. Mainland’s opinion testimony. Ms. Jenkins

simply made the unsupported and conclusory statement that lack of this knowledge rendered Dr. Mainland’s

conclusions “conjecture and speculation.” Id. at 6. Under

these circumstances, we cannot say that the district court

abused its discretion in finding that the proposed testimony of Dr. Mainland was sufficiently reliable.

B. Attorney-Client Privilege

Ms. Jenkins next submits that it was error for the district court to sustain Officer Bartlett’s claim of attorneyclient privilege with respect to his conversations with

Cermele made in the presence of DeBraska, a third party.

The scope of the attorney-client privilege is a question of

law which we review de novo. See United States v. BDO

Seidman, 337 F.3d 802, 809 (7th Cir. 2003). We review the

district court’s findings of fact and application of law to

fact in connection with a claim to attorney-client privilege

for clear error. See United States v. Frederick, 182 F.3d 496,

499 (7th Cir. 1999) (application of law to fact); United States

v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (findings of

fact).
14 No. 06-2495

On the night of the shooting, DeBraska came to the police

station to assist Cermele, Officer Bartlett’s attorney, as

Cermele prepared to represent Officer Bartlett at his

interview with Internal Affairs. DeBraska testified that it

had been custom since the 1960s for a person in his position to come to the police station after an officer had been

involved in a shooting to assist the officer’s attorney in

providing legal services to the officer by gathering information and assuring that the attorney’s representation

followed department rules. R.200 at 54, 59. Officer Bartlett’s

testimony was consistent with DeBraska’s account of the

events of the evening. He stated that DeBraska had been

present during his conversations with Cermele in order

to facilitate communications between the two. Id. at 30, 46,

50.

The district court held that DeBraska’s presence during

Officer Bartlett’s conversations with Cermele did not

destroy the attorney-client privilege. Id. at 81. The court

recognized that, ordinarily, the presence of a third person

would destroy the attorney-client privilege, but noted the

exception for the presence of an agent assisting the attorney in rendering legal services. Id. at 79-80. Based on the

testimony of Officer Bartlett and DeBraska, the court held

that DeBraska was present at the police station on the

night of the shooting as an adjunct of Officer Bartlett’s

attorney. Id. at 80. The court found that DeBraska was there

to assist Cermele by gathering information and by providing “expert advice on the rules and procedures of the

department” to facilitate Cermele’s representation of

Officer Bartlett. Id. Under these circumstances, the court

found that DeBraska “play[ed] the same role as would

a paralegal in a law office, a secretary, or anyone else

connected with the office.” Id.
No. 06-2495 15

The attorney-client privilege protects communications

made in confidence by a client to his attorney in the

attorney’s professional capacity for the purpose of obtaining legal advice. See Evans, 113 F.3d at 1461. “[B]ecause the

privilege is in derogation of the search for the truth, it is

construed narrowly.” Id. Thus, ordinarily, statements

made by a client to his attorney in the presence of a third

person do not fall within the privilege, even when the

client wishes the communication to remain confidential,

because the presence of the third person is normally

unnecessary for the communication between the client and

his attorney. Id. at 1462. However, there is an exception to

the general rule that the presence of a third party will

defeat a claim of privilege when that third party is present

to assist the attorney in rendering legal services. 2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence

§ 183 at 312 (2d ed. 1994).

Ms. Jenkins recognizes this exception, but insists that it

is limited to those individuals who would be considered

agents of the attorney under the law of master and servant.

Nothing in our case law so limits the exception. This

exception applies both to agents of the attorney, such as

paralegals, investigators, secretaries and members of the

office staff responsible for transmitting messages between the attorney and client, and to outside experts

engaged “to assist the attorney in providing legal services

to the client,” such as accountants, interpreters or polygraph examiners. Id. at 313. Additionally, this exception

reaches retained experts, other than those hired to testify,

when the expert assists the attorney by transmitting or

interpreting client communications to the attorney or

formulating opinions for the lawyer based on the client’s

communications. Id. at 314.
16 No. 06-2495

6 We note the narrowness of our holding in this regard. We

do not suggest that an independent privilege exists for communications between an individual and his union representative. Nor do we imply that the presence of a union official while

an individual discusses an ongoing investigation with his

attorney never will abrogate a claim of privilege. However,

where, as is the case here, the district court finds that a third

party is present during conversations between an attorney

and a client in preparation for an investigatory interview and

the third party is present solely to assist the attorney in rendering legal services to the client, the third party’s presence will

(continued...)

Because there was no legal error in defining the scope

of the claimed privilege, our review of the district court’s

decision sustaining Officer Bartlett’s claim of privilege is

limited to clear error. We shall reverse only if, on review

of the entire evidence, we are “left with the definite and

firm conviction that a mistake has been committed” in the

application of the law to the facts. Malachinski v. Comm’r,

268 F.3d 497, 505 (7th Cir. 2001) (quoting Coleman v.

Comm’r, 16 F.3d 821, 825 (7th Cir. 1994)) (internal quotation

marks omitted). To support his claim of privilege, Officer

Bartlett and DeBraska testified regarding DeBraska’s

activities on the night of the shooting as Officer Bartlett

prepared to meet with Internal Affairs. Both testified that

DeBraska was there solely to assist Cermele as he prepared

to represent Officer Bartlett. Ms. Jenkins offered no evidence to contradict this testimony. The district court

chose to credit the testimony of Officer Bartlett and

DeBraska. Ms. Jenkins has offered no reason why the

court should not have credited this testimony, and there

is no other basis in the record to find the court’s factual

findings clearly erroneous.6
No. 06-2495 17

6 (...continued)

not defeat a claim of privilege. The third party’s status as a

union representative is immaterial to the question of the

attorney-client privilege.

C. Monell Claims

Ms. Jenkins brought claims against the City and Chief

Jones in his official capacity based on Officer Bartlett’s

alleged violation of Mr. Jenkins’ constitutional rights. She

alleged that they were deliberately indifferent to the rights

of Mr. Jenkins in their failure to train and supervise

Officer Bartlett. The district court granted summary judgment in favor of the City and Chief Jones with respect to

Ms. Jenkins’ claims; it could find no genuine issue of

material fact with respect to the question of deliberate

indifference.

We review a district court’s grant of summary judgment

de novo. Alexander v. City of South Bend, 433 F.3d 550, 554

(7th Cir. 2006). Summary judgment is appropriate where

there is no genuine issue of material fact and the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When

the nonmoving party bears the ultimate burden of proof

at trial, the nonmoving party must come forward with

specific facts demonstrating an issue for trial to survive

summary judgment. Id. at 324. Only disputes as to facts

which are material, i.e., “facts that might affect the outcome of the suit under the governing law,” and genuine,

i.e., disputes for which “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,”

will preclude summary judgment. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).
18 No. 06-2495

A municipality may not be held liable under § 1983

based on a theory of respondeat superior or vicarious

liability. See Monell, 436 U.S. at 694. A municipality only

may be held liable under § 1983 for constitutional violations caused by the municipality itself through its own

policy or custom. Id. Although a municipality may be

directly liable for constitutional violations by its officers

when the municipality evinces a deliberate indifference

to the rights of the plaintiff by failing to train adequately

its officers to prevent the violation, there can be no liability

under Monell for failure to train when there has been no

violation of the plaintiff’s constitutional rights. See Alexander, 433 F.3d at 557 (noting that a municipality may not be

held liable under Monell for failure to train adequately or

to supervise its police officers when the plaintiff fails to

demonstrate any constitutional violation by a municipal

employee). The jury found that Mr. Jenkins’ constitutional

rights were not violated when Officer Bartlett fired

upon him, thus the City cannot be held liable for any

failure to train.

Even if that were not the case, Ms. Jenkins has not raised

a genuine issue of material fact with respect to any deficiency in the City’s training that could give rise to direct

liability for a failure to train adequately its officers. A

municipality will be held liable for the violation of an

individual’s constitutional rights for failure to train adequately its officers only when the inadequacy in training

amounts to deliberate indifference to the rights of the

individuals with whom the officers come into contact. City

of Canton v. Harris, 489 U.S. 378, 388 (1989). Proof of

deliberate indifference requires more than “[a] showing

of simple or even heightened negligence.” Bd. of County

Comm’rs of Bryan County v. Brown, 520 U.S. 397, 407 (1997).
No. 06-2495 19

We shall find deliberate indifference on the part of

policymakers only when such indifference may be considered a municipal policy or custom. City of Canton, 489

U.S. at 389. This may arise in either of two circumstances.

First, a municipality acts with deliberate indifference

when, “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 deficiency

exhibits deliberate indifference on the part of municipal

policymakers. Id. at 390. Alternatively, we may find

deliberate indifference when a repeated pattern of constitutional violations makes “the need for further training . . .

plainly obvious to the city policymakers.” Id. n.10.

Ms. Jenkins submits that, in light of several incidents in

which MPD officers exercised deadly force on suspects in

vehicles, the City and Chief Jones were deliberately

indifferent to the rights of Mr. Jenkins when they failed to

provide additional training or to exercise greater supervision. As the party on whom the burden of proof rested at

trial, Ms. Jenkins was obligated to come forth with evidence to support this claim in order to survive summary

judgment. Ms. Jenkins identified four incidents between

August 1997 and September 2002, not including the

shooting of Mr. Jenkins, in which Milwaukee police fired

upon a suspect in a vehicle. R.90 at 101-12. Each incident

was investigated by the MPD and no constitutional violations were found. Ms. Jenkins does not challenge the

adequacy of these investigations. The evidence Ms. Jenkins

presents shows only that four individuals were shot by

MPD officers while in a vehicle; it does not show that each

or any of these shootings amounted to a constitutional
20 No. 06-2495

7 The first of the four prior shootings occurred in August 1997.

In that incident, an MPD officer approached Victor Rodriguez,

who the officer believed to be wanted for multiple armed

robberies. When the officer instructed Rodriguez to lie on the

ground on his stomach, Rodriguez jumped up, got into his

car and closed the door. The officer approached Rodriguez’s vehicle from the front to provide cover and to get a

better view of Rodriguez. Rodriguez then reached for something

on the floor or seat of the vehicle. The officer believed Rodriguez

was reaching for a weapon and fired one shot into the vehicle’s

windshield. Rodriguez was not killed and ultimately was

apprehended after fleeing the scene.

The second shooting occurred in July 1998. In that instance, an

MPD officer approached a car from the front. As the officer

approached, the vehicle began moving toward him. The officer

stepped to the side and pointed his revolver into the vehicle.

The weapon discharged accidentally and the driver, Antonio

Davis, was killed.

The third shooting also occurred in July 1998, on the same day

as the Davis incident. The third shooting involved Donnel

Sims. There, two MPD officers approached Sims in his car. When

the officers noticed open liquor bottles in the car, Sims began

backing his vehicle away slowly. One of the officers then

reached into the vehicle to shut off the ignition and Sims

accelerated, dragging the officer. When Sims stopped the

vehicle, the officer was thrown. After the officer was thrown,

Sims attempted to flee the scene and the officer who had

been dragged fired four shots into the vehicle. Sims was

wounded but not killed.

The fourth shooting occurred in June 2002. Two MPD officers

identified a vehicle as stolen. The officers pulled their squad

car approximately 15 feet behind the vehicle and got out. The

(continued...)

violation.7 This is not enough to provide the City or Chief
No. 06-2495 21

7 (...continued)

driver of the stolen vehicle, Samuel Rodriguez, then accelerated

his vehicle toward the driver’s side of the squad car. At that

time, the officer driving the squad car was outside of the

squad car in between the driver’s side door and the squad car’s

body. As Rodriguez approached, the officer identified himself

as an MPD officer and fired one shot into Rodriguez’s vehicle.

Rodriguez’s vehicle then struck the squad car, trapping the

officer between the door and the body of the squad car, crushing him. The officer then fired another shot into Rodriguez’s

vehicle. Rodriguez died of the two gunshots.

Jones with actual or constructive knowledge that “the

police . . . so often violate constitutional rights that the

need for further training must have been plainly obvious.”

City of Canton, 489 U.S. at 390 n.10.

For these reasons, Ms. Jenkins has failed to raise a

genuine issue of material fact with respect to her claims

against the City and Chief Jones, and the district court’s

grant of summary judgment is affirmed.

Conclusion

Accordingly, we conclude that the district court did not

abuse its discretion when it permitted Dr. Jentzen and

Dr. Mainland to testify. Nor did the district court commit

clear error by sustaining Officer Bartlett’s claim of attorneyclient privilege with respect to his conversations with

Cermele in DeBraska’s presence. Further, because Officer

Bartlett did not violate Mr. Jenkins’ constitutional rights,

there can be no Monell liability on the part of the City or

Chief Jones. In any event, Ms. Jenkins has failed to raise a

genuine issue of material fact with respect to the Monell
22 No. 06-2495

liability of the City and Chief Jones for failure to train

adequately Officer Bartlett. The decision of the district

court is affirmed.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-23-07