1 This suit was originally brought against several parties,

but the district court dismissed the claims concerning the other

Defendants, leaving Bryan County and Stacy Burns as the only

Defendants.

1 United States Court of Appeals,

Fifth Circuit.

No. 93-5376.

Jill BROWN, Plaintiff-Appellee, Cross-Appellant,

v.

BRYAN COUNTY, OK, et al., Defendants,

Board of the County Commissioners of Bryan County, Oklahoma, et

al., Defendants-Appellants, Cross-Appellees.

June 2, 1995.

Appeal from the United States District Cour t for the Eastern

District of Texas.

Before REYNALDO G. GARZA, WIENER, EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

A claim for damages was brought against Reserve Deputy Stacy

Burns (Burns) and Bryan County, Oklahoma (Bryan County), 1 by Jill

Brown (Mrs. Brown) pursuant to 42 U.S.C. § 1983 and Oklahoma law.

The case proceeded to trial, in which the jury found in favor of

the Plaintiff on every interrogatory submitted. The district court

entered a judgment in accordance with the jury's verdict with one

exception: Mrs. Brown was not allowed to recover for loss of past

income or future earning capacity. Burns and Bryan County

(collecti vely the "Appellants") appeal the judgment against them

while Mrs. Brown appeals the portion of the judgment that denied

her recovery for lost past income and future earning capacity. For2 Apparently, the road traveled on was winding, thereby,

diminishing the visibility of other vehicles approaching from

behind.

3 Although Burns was working for the Sheriff's Department, he

was not authorized to carry a firearm or drive a squad car.

2 the reasons stated below we affirm the district court's judgment.

BACKGROUND

In the early hours of May 12, 1991, Todd Brown (Mr. Brown) and

Mrs. Brown were traveling from Grayson County, Texas, to their home

in Bryan County, Oklahoma. After crossing into Oklahoma, Mr.

Brown, who was driving, noticed a police checkpoint. He decided to

avoid the checkpoint and headed back to Texas, allegedly to spend

the night at his mother's house. Although the parties offer

conflicting stories leading to the pursuit, Deputy Sheriff Robert

Morrison (Deputy Morrison) and Burns stated that they "chased" the

Browns' vehicle at a high rate of speed before successfully pulling

it over. Mr. Brown testified that he was oblivious to the

deputies' attempts to overtake him until both vehicles had traveled

approximately three miles. 2 By the time the two vehicles

eventually stopped, the parties had crossed into Grayson County,

Texas, four miles from the Oklahoma checkpoint.

Immediately after exiting the squad car, Deputy M o rrison

unholstered his weapon, pointed it toward the Browns' vehicle and

ordered the occupants to raise their hands. Burns, who was

unarmed, 3 rounded the corner of the truck to the passenger's side.

After twice ordering Mrs. Brown from the vehicle, Burns pulled her

from the seat of the cab and thre w her to the ground. Burns4 Mrs. Brown received a total of four operations on her

knees. Moreover, medical testimony was elicited at trial which

showed that Mrs. Brown would ultimately require total knee

replacements.

3 employed an "arm bar" technique whereby he grabbed Mrs. Brown's arm

at the wrist and elbow, extracted her from the vehicle and spun her

to the ground. Mrs. Brown's impact with the ground caused severe

injury to her knees, requiring corrective surgery. 4 While Mrs.

Brown was pinned to the ground, Burns handcuffed her and left to

assist Deputy Morrison in subduing her husband. Mrs. Brown

remained handcuff ed anywhere from a minimum of thirty minutes to

just over an hour.

According to Mrs. Brown's version of the facts, which will be

reviewed in greater d etail below, the deputies' pursuit and the

force consequently applied against her were unprovoked.

Furthermore, she claims that her detention constitute d false

imprisonment and false arrest. Due to the injuries resulting from

that encounter, Mrs. Brown seeks compensation from Burns and Bryan

County. Mrs. Brown premised the county's liability on two related

but distinct policy theories: the hiring of Burns by Sheriff B.J.

M oore (Sheriff Moore), the final policymaker for the Sheriff's

Department, without adequate screening and Burns' inadequate

training.

DISCUSSION

The Appellants have presented this Court with a host of issues

to support their position that the lower court erred. For

efficiency's sake, we will address only those points that we4

believe merit review. We first address the claims against Burns

for the constitutional injuries that Brown suffered.

I.

In their first argument, Burns and Bryan County allege that

the force applied against Mrs. Brown was proper. Appellants claim

that the evidence "undisputedly" established that Burns' actions on

the morning of May 12, 1991, were objectively reasonable.

Therefore, the jury's findings should be reversed.

All claims that a law enforcement officer has used excessive

force—deadly or not—in the course of an arrest, investigatory stop,

or other "seizure" of a free citizen, are analyzed under the Fourth

Amendment and its "reasonableness" standard. G raham v. Connor, 490

U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The

test of reasonableness under the Fourth Amendment requires

careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of

the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.

Id. at 396, 109 S.Ct. at 1872. The "reasonableness" of the

particular force used must be judged from the perspective of a

reasonable officer at the scene, rather than with the 20/20 vision

of hindsight. I d. In cases implicating excessive force, "not

every push or shove, even if it may later seem unnecessary in the

peace of a judge's chambers," violates the Fourth Amendment. Id.

(citation omitted). Thus, the question is whether the officer's

actions are "objectively reasonable" in light of the facts and

circumstances confronting him, without regard to his underlying5 The deputies testified that they were pursuing the Browns

at speeds in excess of 100 miles per hour.

6 The fact that two firearms were found in the truck after

the arrest does not make Burns actions any more or less

reasonable, unless his actions had resulted from the observation

of those guns prior to the arrest. That was not the case,

however.

5 intent or motivation. Id. at 397, 109 S.Ct. at 1872.

Determining whether Burns' actions were reasonable depends on

w hose story the trier of fact accepts as true. According to the

testimony of Burns and Deputy Morrison, they were involved in a

"high-speed" pursuit 5 after the Browns abruptly turned their truck

and sped from the checkpoint. After a four mile "chase" both

vehicles came to a full stop. The deputies exited their vehicle

and made several commands for the occupants to raise their hands

before those commands were obeyed. After rounding the truck, Burns

twice or dered Mrs. Brown to exit the vehicle, but she did not

comply. He then perceived that she was "lean[ing] forward" in the

cab of the truck as if she were "grabbing a gun." 6 He was "scared

to death," so he extracted her from the vehicle. He spun her

around, dro pped her to the ground via the arm bar maneuver and

handcuffed her. That was the lowest amount of force he deemed

necessary to extract her and ensure he and his partner's safety.

Certainly, Appellants' version of the facts supports a claim

that Burns acte d reasonably and with an appropriate amount of

force. The Browns, however, paint a strikingly different picture.

They testified that they were oblivious to the attempts made by the

deputies to catch up to them (the Browns) after avoiding the7 Mr. Brown testified that initially, he did not hear any

police sirens, or observe a squad car following them. Finally,

after driving for several minutes at speeds of 40 to 55 miles per

hour, he glimpsed the blue lights from the deputies' vehicle and

determined that he was being pursued. He stopped the truck at

the first available opportunity.

8 Mr. Brown alleged that he had been unnecessarily detained

at that checkpoint on several occasions.

6 Oklahoma checkpoint. 7 Mr. Brown avoided that stop because he

feared the possibility of being harassed or unnecessarily detained

by the deputie s. 8 He further testified that he did not believe

that he turned the truck around eithe r in a reckless fashion nor

with wheels squealing or throwing gravel, and that he drove away at

a normal rate of speed. Finally realizing that they were being

pursued, Mr. Brown pulled over only to find a gun pointed at him.

They were ordered to put their hands up and they did so.

Mrs. Brown then t estified that Burns ran to her side of the

vehicle and ordered her to get out. She was paralyzed with fear

and heard Burns repeat the command. According to her testimony,

howev er, she was not slow in responding to Burns' orders and she

did not make any sudden moves while exiting the vehicle. Her only

forward movement was to exit the truck and, contrary to Burns'

testimony, she di d not reach for anything. Then, while she was

exiting the truck, Burns suddenly grabbed her arm, yanked her out,

spun her around and threw her to the pavement. She could not break

her fall because one arm was raised and Burns firmly gripped the

other.

In addition to this conflicting testimony, both sides

elicited expert testimony concerning the reasonableness of Burns'9 The expert did acknowledge that the force used was the

lowest force that could have been applied in extracting and

subduing an arrestee without endangering either party. However,

he did not feel that the situation required this type of force.

10 The standard for appellate review of a jury's verdict is

exacting. Granberry v. O'Barr, 866 F.2d 112, 113 (5th Cir.1988).

It is the same standard as applied in awarding a directed verdict

or a judgment notwithstanding the verdict and is referred to as

the "sufficiency of the evidence" standard. Id. The standard is

as follows:

"The verdict must be upheld unless the facts and

inferences point so strongly and so overwhelmingly in

favor of one party that reasonable men could not arrive

at any verdict to the contrary. If there is evidence

of such quality and weight that reasonable and fair

minded men in the exercise of impartial judgment might

reach different conclusions, the jury function may not

be invaded."

Id. (quoting Western Co. of North Am. v. United States, 699

F.2d 264, 276 (5th Cir.), cert. denied, 464 U.S. 892, 104

S.Ct. 237, 78 L.Ed.2d 228 (1983) ). Stated another way, the

Court should consider all of the evidence, not just that

evidence which supports the nonmovant's case, in the light

and with all reasonable inferences most favorable to the

nonmovant. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th

Cir.1969) (en banc).

7 actions. Mrs. Brown's expert, for example, concluded that the

force applied by Burns in this situation was unjustified and

excessive. 9 The jury weighed all the evidence, evaluated the

conflicting testimony and rendered a verdict in Mrs. Brown's favor.

Under our standard of review, 10 when the evidence supports the

verdict, this Court will not impose its own opinion in

contravention to the jury's. Therefore, we will not interfere with

the fact finder's conclusion that Burns' actions were unreasonable

and that the force he used was excessive.

II.

Notwithstanding the jury's findings, Appellants also assert11 In Maslanka, a police officer observed a car coming down a

road and, upon seeing his unmarked car, it turned around and sped

away in flight. This Court found that this observation provided

sufficient facts for an officer to investigate. Maslanka, 501

F.2d at 213. Upon stopping the car, the officer smelled

marihuana smoke, creating the probable cause necessary to arrest

the passengers. Id.

8 tha t there was probable cause to arrest Mrs. Brown. They argue

that the facts justified Burn 's actions, thereby precluding Mrs.

Brown's § 1983 claim for false arrest.

There is no cause of action for false arrest under § 1983

unless the arresting officer lacked probable cause. F ields v. City

of South Houston, Tex., 922 F.2d 1183, 1189 (5th Cir.1991). To

determine the presence or absence of probable cause, one must

consider the totality of the circumstances surrounding the arrest.

United States v. Maslanka, 501 F.2d 208, 212 (5th Cir.1974), 11 cert.

denied, 421 U.S. 912, 95 S.Ct. 1567, 43 L.Ed.2d 777 (1975).

Whether officers have probable cause depends on whether, at the

time of the arrest, the " "facts and circumstances within their

knowledge and of which they had reasonably trustworthy information

were sufficient to warrant a prudent man in believing that [the

arrested] had committed or was committing an offense.' " I d.

(quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13

L.Ed.2d 142 (1964)). Furthermore, although flight alone will not

provide proba ble cause that a crime is being committed, in

appropriate circumstances it may supply the " "key ingredient

justifying th e decision of a law enforcement officer to take

action.' " U

nited States v. Bowles, 625 F.2d 526, 535 (5th

Cir.1980) (quoting United States v. Vasquez, 534 F.2d 1142, 11459

(5th Cir.), c ert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d

587 (1976)).

To reiterate, whether Burns had probable cause to arrest Mrs.

Brown depends in large part on whether the facts, a s Burns knew

them, were sufficient to warrant a prudent man's belief that Mrs.

Brown committed or was in the process of committing a crime. The

facts material to that determination were hotly contested,

especially the contradictory testimony relating to the pursuit and

Mrs. Brown's movements while exiting the vehicle. Thus, it was for

the fact finder to determine whether Burns had probable cause to

arrest Mrs. Brown. H arper v. Harris County, Tex., 21 F.3d 597, 602

(5th Cir.1994). Assuming a rguendo that the deputie s had a

reasonabl e suspicion to perform an investigatory stop, we

nevertheless find the evidence sufficient t o support the jury's

finding that Burns did not have probable cause to arrest Mrs.

Brown, and that his doing so violated her constitutional right to

be free from false arrest.

As the jury found that Burns did not have probable cause to

detain or arrest Mrs. Brown, it could also find from the evidence

that she was falsely imprisoned. To set out a claim for false

imprisonment the plaintiff must prove (1) an intent to confine, (2)

acts resulting in confinement, and (3) consciousness of the victim

of confinement or resulting harm. H arper v. Merckle, 638 F.2d 848,

860 (5th Cir. Unit B Mar.), cert. denied, 454 U.S. 816, 102 S.Ct.

93, 70 L.Ed.2d 85 (1981). Under § 1983, the plaintiff must also

prove the deprivation of a constitutional right, i.e., an12 As this Court finds that liability was proper for the

claims of excessive force, false arrest and false imprisonment,

it need not address the state law issues involved herein.

10 illegality under color of state law. I d. The evidence establishes

that Mrs. Brown believed herself to be under arrest: even though

she had committed no crime, she remained handcuffed for

approximately an hour before being released, during which time she

was never informed of the nature of the charges for which she was

being detained, and subsequently no charges were ever brought. In

light of such evidence, a finding of false imprisonment is proper. 12

III.

Appellants also contest the jury's finding that Burns was not

entitled to qualified immunity. A proper analysis of a qualified

immunity defense requires us to conduct a two (sometimes three)

prong inquiry. S ee Siegert v. Gilley, 500 U.S. 226, 111 S. Ct.

1789, 114 L.Ed.2d 277 (1991); H arlow v. Fitzgerald, 457 U.S. 800,

102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). First, we determine

"whether the plaintiff has asserted a violation of a constitutional

right at all." S iegert, 500 U.S. at 232, 111 S.Ct. at 1793.

Second, we ascertain whether the law was clearly established at the

time of the official's action

. Siegert, 500 U.S. at 233-34, 111

S.Ct. at 1794; Harlow, 457 U.S. at 815-19, 102 S.Ct. at 2737-38.

Third, we evaluate the "o bjective reasonableness of [the]

official's conduct as measured by reference to clearly established

law." H arlow, 457 U.S. at 818, 102 S.Ct. at 2739. It is clear

that by 1991, use of excessive force, false arrest and false

imprisonment had be en held to violate citizens' constitutional13 "While it is correct that the reasonableness of the

arresting officer's conduct under the circumstances is a question

of law for the court to decide, such is not the case where there

exist material factual disputes...." Harper v. Harris County,

Tex., 21 F.3d 597, 602 (5th Cir.1994) (discussing officer's

qualified immunity).

14 Mrs. Brown did not respond to this argument in her briefs.

11 rights, thus the qualified immunity defense fails if Burns did not

act with probable cause. As the trier of fact determined that

Burns did not have probable cause to arrest Mrs. Burns, he is not

entitled to qualified immunity. 13

IV.

Burns asser ts that the evidence is insufficient to support

the jury's award of punitive damages. He argues that application

of the arm bar technique did no t rise to a level of "flagrant"

conduct and further, that it did not evidence malice or give rise

to an inference of evil intent. 14 Nevertheless, the Supreme Court

has ruled that punitive damages are recoverable in a § 1983 action.

Smith v. Wade, 461 U.S. 30, 35, 103 S.Ct. 1625, 1629, 75 L.Ed.2d

632 (1983). One of the primary reasons for § 1983 actions and

punitive damages is to deter future egregious conduct. I d. at 49,

103 S.Ct. at 1636. A jury may assess punitive damages in an action

under § 1983 if the defendant's conduct is shown to be motivated by

evil motive or intent, or involved reckless or callous indifference

to the federally protected rights of others. I d. at 56, 103 S.Ct.

at 1640. The question is whether the acts of Burns, which caused

the deprivation of Mrs. Brown's const itutional rights, rose to a

level warranting the imposition of punitive damages. In light of15 In the order, the district court stated "[t]he jury

awarded plaintiff substantial damages in this case, including

$36,000 for loss of income in the past and $180,000 for loss of

earning capacity in the future. After a review of the evidence

in this case, the Court is convinced that there is no legally

sufficient evidentiary basis for the award of these damages.

Therefore, judgment should be granted for the defendants on

plaintiff's claims for loss of income in the past and loss of

earning capacity in the future."

12 the evidence before it, we believe that the jury could properly

infer that Burns' acts were unjustified and that he acted with

callous or rec kless indifference to Mrs. Brown's constitutional

rights. Therefore, punitive damages were justified.

V.

On cross-appeal, Mrs. Brown argues that it was error for the

district court to grant Appellants' Motion for Judgment

Notwithstanding the Jury Verdict (JNOV) as it relates to her claims

for loss of past income and future earning capacity. 15 Mrs. Brown

asserts that neither Bryan County nor Burns specifically raised an

issue concerning the sufficiency of the evidence supporting that

portion of the judgment, thus the district court's action was

unjustified and the award must be reinstated. She insists that

there is absolutely no legal predicate on which the district court

could base its actions. Therefore, as evidence was offered to

support this award, Mrs. Brown argues that the original jury award

should be reinstated.

This Court has determined that it "would be a constitutionally

impermissible re-examination of the jury's verdict for the district

court [or this Court] to enter judgment n.o.v. on a g round not

raised in the motion for directed verdict." McCann v. Texas City13

Refining, Inc., 984 F.2d 667, 672 (5th Cir.1993). It is undisputed

that the Appellants did not address the sufficiency of the evidence

supporting the jury's award for loss of past income and future

earning capacity in their motions for either directed verdict or

JNOV. Thus, the lower court should not have decided whether

sufficient evidence exists to support this award. However, as the

Appellants point out, Mrs. Brown failed to object to this error at

trial, and it is the "unwavering rule in this Circuit that issues

raised for the first time on appeal are reviewe d only for plain

error." Id. In other words, this Court will reverse only if the

error complained of results in a "manifest miscarriage of justice."

Id. Furthermore, contrary to Mrs. Brown's contention, the issue is

not whether any evidence exists t o support the jury verdict.

Instead, the issue is whether the district court's action

constituted plain error.

Upon reviewing the record, we do not believe that the lower

court's error resulted in a manifest miscarriage of justice. The

only evidence offered in support of the award comprised of Mrs.

Brown's testimony, which reflected that she had accepted an offer

to commence w ork a few days after the day of the incident. Her

compensation would have been measured on a commission basis, which

she believed would have paid between $1,500 to $1,800 a month. The

district court's ruling that this evidence was lacking does not

a rise to plain error. Mrs. Brown's failure to object at the

appropriate time denied the district court the opportunity to

rectify any errors. Therefore, the court's ruling will stand.14 VI.

Having found that Burns violated Mrs. Brown's constitutional

rights, the next inquiry concerns the possible liability of Bryan

County. It is well established that in a § 1983 action, liability

may not be imposed on a government entity on a theory of respondeat

superior for the actions of nonpolicymaking government employees.

Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 690-94,

98 S.Ct. 2018, 2035-37, 56 L.Ed.2d 611 (1978). In certain

instances, however, a municipality may incur § 1983 liability for

its employees' actions when an official policy or custom of hiring

or training causes those actions. Benavides v. County of Wilson,

955 F.2d 968, 972 (5th Cir.), cert. denied,

--- U.S. ----, 113

S.Ct. 79, 121 L.Ed.2d 43 (1992). To prove that a municipal hiring

or training policy violated an individual's rights, the plaintiff

must show that (1) the hiring or training procedures of the

municipality's policymaker were inadequate; (2) the municipality's

policymaker was deliberately indifferent to the constitutional

rights of the citizens in adopting the hiring or training policy;

a nd (3) the inadequate hiring or training policy directly caused

the plaintiff's injury. I d. (citing City of Canton v. Harris, 489

U.S. 378, 390-392, 109 S.Ct. 1197, 1205-1206, 103 L.Ed.2d 412

(1989)).

Liability will accrue for the acts of a municipal official

when the official possesses "final policymaking authority" to

establish municipal poli cy with respect to the conduct that

resulted in a violation of constitutional rights. P embaur v. City16 In the pre-trial order, Appellants' ask "[w]hether

Defendant Board of County Commissioners is liable under 42 U.S.C.

§ 1983 when they did not participate in any policy decisions with

regards to the conduct and operation of the office of Bryan

County Sheriff?" Appellants also failed to object to the jury

instructions which referred to Sheriff Moore as the final

policymaker. See Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d

745, 754 (5th Cir.1993) (failure to lodge an objection to court's

instructions regarding the final policymaker waived the issue).

15 of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d

452 (1986) (plurality opinion). Municipal liability is limited to

"acts that are, properly speaking, acts "of the municipality'—that

is, acts which the municipality h as officially sanctioned or

ordered." I d. at 480, 10 6 S.Ct. at 1298. The mere exercise of

discretion by a county official will not be sufficient, by itself,

to generate municipal liability:

The fact that a particular official—even a policymaking

official—has discretion in the exercise of particular

functions does not, without more, give rise to municipal

liability based on an exercise of that discretion. The

off i cial must also be responsible for establishing final

government policy respecting such activity before the

municipality can be held liable.

Id. at 481-483, 106 S.Ct. at 1299-1300.

Bryan County has all but conceded that Sheriff Moore alone set

all policies involving the conduct and operation of his office. 1 6

In fact, Appellants even stipulated that Sheriff Moore was the

final policymaker for the Sheriff's Department. As such, it is

patently clear that Sheriff Moore is an official "whose acts or

edicts may fairly be said to represent official policy and whose

d ecisions therefore may give rise to municipal liability under §

1983." Id. at 480, 106 S.Ct. at 1299 (citing Monell, 436 U.S. at

694, 98 S.Ct. at 2037).17 Mrs. Brown distinguishes her "policy" claims from "custom"

claims and notes that she could not recover on the latter theory

because her injuries were the result of either of two single

decisions: Sheriff Moore's decision to hire Burns or his

decision to train Burns inadequately. The injuries, therefore,

were not caused by a widespread practice or procedure of

inadequately hiring or training personnel.

16 Mrs. Brown maintains that her injuries resulted from two

"policies" chosen by Sheriff Moore in his official capacity as the

final p olicymaker in the Sheriff's Department. 1 7 The first

purported policy is Sheriff Moore's decision to hire Burns without

conducting an adequate background investigation. The other policy

is Sheriff Moore's decision to provide Burns with minimal training

and preparation for his duties as a peace officer before permitting

him to act in that capacity. Thus, Mrs. Brown argues that a

municipality can be held liabl e under § 1983 based on a final

policymaker's single decision regarding the hiring or training of

one individual. Appellants, on the other hand, argue that § 1983

liability cannot attach on the b asis of a policymaker's single,

isolated decision to hire or train one individual.

An argument similar to the Appellants' was re jected by this

Court in Gonzalez v. Ysleta Indep. Sch. Dist., 99 6 F.2d 745, 754

(5th Cir. 1993). In G onzalez, the Ysleta Independent School

District (YISD) was sued for a single decision to transfer a

teacher accused of sexually harassing a student, rath er than

removing him from the classroom. YISD argued that this ad hoc,

isolated decision, even when made by po licymakers, did not

constitute the sort of "polic y" upon which municipal liability

could be predicated under Monell. This was especially true there,18 Accord Johnson v. Moore, 958 F.2d 92 (5th Cir.1992). In

Moore, this Court defined policy and custom as:

1. A policy statement, ordinance, regulation, or

decision that is officially adopted and promulgated by

the municipality's lawmaking officers or by an official

to whom the lawmakers have delegated policy-making

authority; or

2. A persistent, widespread practice of city officials

or employees, which, although not authorized by

officially adopted and promulgated policy, is so common

and well settled as to constitute a custom that fairly

represents municipal policy. Actual or constructive

knowledge of such custom must be attributable to the

governing body of the municipality or to an official to

whom that body had delegated policy-making authority.

Id. at 94 (citing Bennett v. City of Slidell, 735 F.2d 861,

862 (5th Cir.1984) (en banc) (emphasis added), cert. denied,

472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985) ).

17 insisted YISD, as the decision was contrary to the district's own

formal policy for handling such matters. This argument proved

unpersuasive.

The term "policy" is distinguished from custom as follows:

policy is defined as a "policy statement, ordinance, regulation, or

decision officially adopted and promulgated b y a [municipality's

officers]," while custom consists of "persistent and widespread

...

practices of

... officials." M onell, 436 U.S. at 690-91, 98 S.Ct.

at 2036 (emphasis added). 18 "Policy" often refers to formal rules

and understandings, but its meaning is not exhausted by " "fixed

plans of actions to be followed under si milar circumstances

consistently and over time.' " G onzalez, 996 F.2d at 754 (quoting

Pembaur, 475 U.S. at 480-81, 106 S.Ct. at 1299). "To the contrary,

it is well established that a municipality may be held liable for

"course[s] of action tailored to a specific situation and not19 In Pembaur, the Supreme Court held that a county

prosecutor's single decision, ordering law officers to forcibly

enter a dentist's office, was actionable under § 1983. 475 U.S.

at 480-81, 106 S.Ct. at 1298-99. However, the Court cautioned

that liability would only attach where the course of action was

deliberately chosen by a decisionmaker possessing final authority

to establish municipal policy. Id. at 481, 106 S.Ct. at 1299.

We note that Mr. Pembaur's § 1983 action was premised on a theory

of municipal policy and not on a theory of municipal custom. Id.

n. 10.

18 intended to control decisions in later situations,' provided that

the "decision to adopt that particular course of action is properly

made by that government's authorized decisionmakers.' " Id.

(quoting Pembaur, 475 U.S. at 481, 106 S.Ct. at 1299) (emphasis

added). Additionally, the existence of a well-established,

officially adopted policy will not insulate the municipality from

liability where a policymaker departs from these formal rules.

See, e.g., St. Louis v. Praprotnik, 485 U.S. 112, 122-126, 108

S.Ct. 915, 923-925, 99 L.Ed.2d 107 (1988) (plurality opinion).

Based on the facts before it, the Gonzalez panel concluded

that the final policymaker's single, conscious decision, i.e., the

Board of Trustee's decision to t ransfer the teacher rather than

remove him from the classroom, constituted a "policy" attributable

to the school district. G onzalez, 996 F.2d at 754. This

conclusion was logical, as "[n]o one has ever dou bted ... that a

municipality may be l iable under § 1983 for a s ingle decision by

its properly constituted legislative body

... because even a single

decision by such a body unquestionably constitutes an act of

official government policy." Pembaur, 475 U.S. at 480, 106 S.Ct.

at 1298 (emphasis added). 19 To deny compensation to the victim in19

such a case would be contrary to the fundamental purpose of § 1983.

I d. at 481, 106 S.Ct. at 1299. So, it is clear that a single

decision may create municipal liability if that decision were made

by a final policymaker responsible for that activity.

Bryan C ounty, however, further contends that a pattern of

repeated injuries must develop befo r e municipal liability can

accrue against it. This Court is aware of the case law in this

Circuit stating that "[i]solated violations are not the persistent,

often repeated constant violat i ons that constitute custom and

policy" as required for § 1983 liability. S ee, e.g., Bennett v.

City of Slidell, 728 F.2d 762, 768 n. 3 (5th Ci r.1984), c ert.

denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985);

Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir.), cert.

denied,

--- U.S. ----, 113 S.Ct. 462, 121 L.Ed.2d 371 (1992).

Similarly, the first case in the lineage of Monell, City of

Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d

791 (1985), also indicated that a s ingle incident of

unconstitutional activity will not suffice to hold a municipality

l iable under M onell " unless proof of the incident includes proof

that it was caused by an existing, unconstitutional municipal

policy, which policy can be attributed to a municipal policymaker."

Id. at 823-24, 105 S.Ct. at 2436. Thus, once an unconstitutional

policy is established, " "it requires only one application ... to

satisfy fully Monell 's requirement that a municipal corporation be

held liable only for constitutional violations resulting from the

municipality's official policy.' " P embaur v. City of Cincinnati,20 See Gonzalez, 996 F.2d at 754-55 (discussing

"metaphysical" distinction (quoting Tuttle, 471 U.S. at 833 n. 8,

105 S.Ct. at 2441 n. 8 (Brennan, J., concurring in part))). It

is only in the latter case, i.e., where a policy is otherwise

constitutional, where more than one incident or violation must be

shown to have occurred.

20 475 U.S. 469, 478 n. 6, 106 S.Ct. 1292, 1297 n. 6, 89 L.Ed.2d 452

(1986) (quoting Tuttle, 471 U.S. at 822, 105 S.Ct. at 2435).

But "where the policy relied upon is not itself

unconstitutional, considerably more proof than the single incident

will be necessary in every case to establish both the requisite

fault on the part of the municipality, and the causal connection

between the "policy' and the constitutional deprivation." T uttle,

471 U.S. at 824, 105 S.Ct. at 2436 (citations omitted). Thus, the

Supreme Court envisioned only two types of policies:

constitutional and unconstitutional. Of course, the Court's logic

is irrefutable, as a policy either is or is not constitutional.

However, when determining whether or not more than one incident is

needed to impose liability, we believe that the distinction between

policies that are unconstitutional, that is, policies that require

or compel violati ons, and otherwise constitutional policies, is

"metaphysical." 20 In certain cases, the facts may undoubtedly fall

somewhere in between.

In Gonzalez we recognized that a single constitutional

d ecision can constitute an unconstitutional policy if the causal

link between the decision and the unc onstitutional result is too

compelling to ignore. As explained below, the hiring decision made

by the final policymaker for the Sheriff's Department—not merely a21 See Bennett v. City of Slidell, 728 F.2d 762, 768 (5th

Cir.1984) ("Sufficient duration or frequency of abusive

practices, or other evidence, must warrant a finding of knowledge

on the part of the governing body that the objectionable conduct

has become customary practice of city employees. Where the

violations are flagrant or severe, the fact finder will likely

require a shorter pattern of the conduct to be satisfied that

diligent governing body members would necessarily have learned of

the objectionable practice and acceded to its continuation."),

cert. denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612

(1985) (emphasis added).

21 non-policymaking county employee—created a high likelihood that a

citizen's constitutional rights would be violated. Consequently,

as we deem such decision to be unco nstitutional, a single

application of that invalid policy, i.e., the hiring of Burns, is

sufficient to satisfy Monell.

Furthermore, we note that the primary reason for requiring a

"pattern" of violations before imposing municipal liability is to

alert the final policymakers of deficiencies in municipal programs

or practices. 21 So, once the final policymakers are actually or

constructively aware of any probl em areas, they can take the

necessary corrective measures. If they fail to take such measures,

the g overnment entity itself can be held liable, but o nly if the

citizen can also prove that this failure was due to the deliberate

indifference of the policymakers and that the policy itself caused

the injuries.

As the final policymaker for the Sheriff's Department, Sheriff

Moore was conscious of his own policy decision and was thus aware

or deliberately indifferent to its inadequacy. Thus, if Mrs. Brown

proves the necessary "deliberate indifference" and "causation"

elements, we need not wait for Sheriff Moore to hire several other22

unqualified applicants, and wait for other citizens' rights to be

violated, before section 1983 liability can be imposed.

A.

Mrs. Brown argues that Burns' lengthy criminal history should

have prevented Sheriff Moore from hiring him. Burns' history

revealed a string of offenses that, she claims, demonstrates a

disregard for the law and a propensity for violence. Moreover, she

maintains that a thorough investigation of Burns' background would

have revealed that his parole had been violated by his numerous

o ffenses. Thus, she argues that Burns' screening and subsequent

employment by Sheriff Moore were inadequate and subjected Bryan

County to liability.

As explained above, in inadequate hiring cases the plaintiff

must show that (1) the hiring procedures of the municipality's

policymaker were inadequate; (2) the municipality's policymaker

was deliberately indi fferent in adopting the hiring policy; and

(3) the inadequate hiring policy directly caused the plai ntiff's

injury. B enavides v. County of Wilson, 955 F.2d 968, 972 (5th

Cir.) (citing City of Canton v. Harris, 489 U.S. 378, 390-392, 109

S.Ct. 1197, 1205-1206, 103 L.Ed.2d 412 (1989)), cert. denied,

---

U.S. ----, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). In analyzing the

first element, i.e., whether Sheriff Moore's decision to hire Burns

was adequate, we turn to St okes v. Bullins, 844 F.2d 269 (5th

Cir.1988), for guidance.

The plaintiff in Stokes, who was shot by a police officer,

sought to impose liability against the town that had hired the23

officer, on grounds that it had f ailed to establish adequate

policies for hiring its police officers. To establish that the

town's hiring "policy" was inadequate, the plaintiff relied on one

allegedly inadequate hiring decision, i.e., the dec ision by the

town to employ the officer who shot the plaintiff, even though the

town's mayor and an alderman were aware that the officer had

previously been arrested for several minor offenses in nearby

towns. The known arrests were thoroughly investigated, but the

town failed to conduct a National Crime Information Center (NCIC)

c omputer search, which would have revealed a criminal history of

approximately fifteen arrests, on charges rangi n g from simple

assault to armed robbery. After reviewing these facts, the

district court concluded that the failure to perform a NCIC check

constituted gross negligence and conscious indifference to the

public's welfare.

This Court disagreed with the lower court's ruling and refused

to make performance of a NCIC check a constitutional requirement in

assessing municipal liability. I d. at 275; s ee Benavides, 955

F.2d at 975. Nonetheless, the Court stated that,

[we do not] imply that a municipality may close its eyes to

the background of t hose seeking employment with it. I f a §

1983 claim may arise from egregious hiring practices, however,

w e would analogize with [ L anguirand v. Hayden, 717 F.2d 220

(5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2656,

81 L.Ed.2d 363 (1984) ], and require a plaintiff to establish

actual knowledge of the seriously deficient character of an

applicant or a persistent, widespread pattern of the hiring of

polic emen, for instance, with a background of unjustified

violence.

Stokes, 844 F.2d at 275 n. 9 (original emphasis).

This passage is crucial to our analysis because in it we24

rec ognize that a policymaker's wrongful hiring of one deficient

individual can result in municipal liability. Moreover, it

cautions that an applicant must not be hired blindly by a municipal

entity.

In Benavides, this Court reviewed Stokes where, as mentioned

above, the Court focused on the town's investigation of the

applicant's prior employment history and his arrests for relatively

trivial offenses before determining that the town was not

deliberately indifferent in hiring the officer. Benavides, 955

F.2d at 975 (discussing Stokes —"The town's good faith hiring effort

was adequatel y demonstrated by its review of the applicant's

employment history and its review of those arrests th at were

brought to its attention."). Turning to the facts before it, the

Benavides court likewise concluded that the governmental entity was

not liable for its hiring policy, as the policymaker authorized to

make hiring decisions conducted a good faith investigation into the

applicant's background. Therefore, as long as a municipality's

hiring decision was based on a good faith investigation of the

applicant's known arrest record and background, no further

investigation is required to shield t he municipality from § 1983

liability. In light of the teachings in Stokes and Benavides, we

now turn to the facts before us.

M rs. Brown does not premise her suit on a theory that Bryan

County had a "widespread pattern" of hiring deficient policemen.

Instead, she argues that Sheriff Moore's decision to hire a single,

deficient applicant formed the basis for Bryan County's liability.22 Of course, the appellee must also prove that the policy

which produced or caused the unconstitutional violation resulted

from the deliberate indifference of a final policymaker.

Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 757-59 (5th

Cir.1993). The court in Gonzalez ultimately determined that YISD

was not liable to the plaintiff because the evidence did not show

that the Board of Trustees acted with deliberate indifference.

Id. at 762.

25 In view of the authorities cited above, we believe that the

d ecision to hire this single applicant gave rise to municipal

liability. 22 Liability will attach, however, only if the jury could

infer from the evidence at trial that Sheriff Moore did not conduct

a good faith screening an d investigation of the applicant, thus

leading to an inadequate hiring decision.

During the application process Sheriff Moore ordered a

printout of Burns' criminal record, which revealed th e following

citatio ns and arrests: nine moving traffic violations, Actual

Physical Control (APC) of a motor vehicle while intoxicated,

driving with a suspended license, arrest for assault and battery,

conviction for possession of a false identification and an arrest

for resisting lawful arrest. When Sheriff Moore was examined about

Burns' "rap sheet," the following exchange took place:

Q. Did you make an inquiry with the proper authorities in Oklahoma

to get a copy of Mr. Burns' rap sheet?

A. I run his driving record, yes.

Q. All right. And you can get that rap sheet immediately, can't

you?

A. It don't take long.

Q. All right. And did you not see on there where Mr. Burns had

been arrested for assault and battery? Did you see that one

on there?26

A. I never noticed it, no.

Q . Did you notice on there he'd been arrested or charged with

[Driving While License Suspended] on several occasions?

* * *

A. I'm sure I did.

Q. All right. Did you notice on there that he'd been arrested and

convicted for possession of false identification?

A. No, I never noticed that.

Q. Did you notice on there where he had been arrested for public

drunk?

A. He had a long record.

Q. Did you notice on there where he had been arrested for resisting

arrest?

A. No, I didn't.

Q. Did you make any inquiries after you got that information to

determine exactly what the disposition of those charges were?

A. No, I didn't.

Q. Did yo u not make any attempt to find out the status of Mr.

Burns' criminal record at that time?

A. As far as him having a criminal record, I don't believe he had

a criminal record. It was just all driving and—most of it

was, misdemeanors.

Q. Well, did you make any attempts to determine whether or not Mr.

Burns was on probation at the time you placed him out there?

A. I didn't know he was on probation, no.

Q. Did you make any effort to find out?

A. I didn't have no idea he was on probation, no.

Q. Well, you saw on his rap sheet where he had been charged with

[Driving Under the Influence], didn't you?

A. I had heard about that. I don't remember whether I had seen it

on the rap sheet or not.

Q. So you'd heard about it?23 The record shows that the expert, Dr. Otto Schweizer, had

spent over twenty years in law enforcement, including, several

years as a field training officer, a police chief and as a

professor of criminal justice and police administration at the

University of Central Oklahoma.

27 * * *

A. I don't remember whether I seen it on the rap sheet or heard

about it.

Besides this damaging testimony, Mrs. Brown's expert 23

testified regarding the importance of properly screening law

enforcement applicants. The expert testified that a thorough

investigation process is needed to weed out individuals who enter

the police force for the wrong reasons, for example, because "they

like to exert their power." In light of Burns' arrest record, the

expert concluded that he showed a "blatant disregard for the law

and problems that may show themselves in abusing the public or

using excessive force," thereby rendering Burns unqualified for a

position in law enforcement. The expert further testified that as

a minimum, Sheriff Moore should have investigated the disposition

of the charges against Burns. Even Appellants' expert, Ken Barnes,

agreed that Burns' criminal history should have caused some

concern, meriting a further review of the applicant. More

importantly, when Mr. Barnes was asked if he would have hired

Burns, he replied that it was "doubtful."

Fromthe foregoing evidence, the jury could have reasonably

inferred that Sheriff Moore "closed his eyes" to Burns' background

when hiring him. This inference is reinforced by Burns' familial

relations within the Sheriff's Department: not only is Burns the24 In light of the string of arrests and convictions, a jury

could properly conclude that Burns had a propensity for violence

and a disregard for the law, thus, precluding his employment. We

deem such a conclusion proper, even though Burns had no felonies

on his record. Oklahoma law prevents a sheriff from hiring an

individual convicted of a felony or a crime involving moral

turpitude. O KLA .S TAT .A NN . tit. 70, § 3311(d)(2) (West 1994).

28 son of Sheriff Moore's nephew, but Burns' grandfather had been

involved with the department for more than sixteen years.

Alternatively, the jury could have inferred that Sheriff Moore was

indeed aware of Burns' past problems with the law and was therefore

cognizant of his deficien t character, but nevertheless opted to

employ him becaus e he was "family". 2 4 Again, the innuendos of

nepotism only bolster the inference that Burns would have been

hired regardless of his criminal history.

We believe that t he evidence supports the jury's conclusion

that Sheriff Moore did not conduct a good faith investigation of

Burns. Although it is true that Sheriff Moore ran a NCIC check of

Burns, this action was futile given that Burns' arrest history was

all but ignored. Sheriff Moore conceded that Burns' record was so

long that he did not bother to examine it. And, except for this

feeble attempt to screen him, no other effort was made to

investigate Burns. A further examination would have revealed that

Burns had repeatedly violate d probation, and that a warrant was

subsequently issued for his arrest. In light of this history, it

should have been obvious to Sheriff Moore that a further

investigation of Burns was necessary.

We also find the evidence sufficient for a jury to conclude

that Sheriff Moore's decision to hire Burns amounted to deliberate25 Further, the lower court's charge to the jury was proper:

"Sheriff B.J. Moore would have acted with deliberate indifference

in adopting an otherwise constitutional hiring policy for a

deputy sheriff if the need for closer scrutiny of Stacy Burns'

background was so obvious and the inadequacy of the scrutiny

given so likely to result in violations of constitutional rights,

that Sheriff B.J. Moore can be reasonably said to have been

deliberately indifferent to the constitutional needs of the

Plaintiff."

26 It is certainly true that the Sheriff had conducted

adequate background checks on other deputies and assured himself

that they were certified before putting them on the street, but

the fact that he diverged from that practice as to this one

individual does not save Bryan County from liability. See

Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754 (5th

Cir.1993).

29 indifference to the public's welfare. See Stokes v. Bullins, 844

F.2d 269, 275 (5th Cir.1988); Wassum v. City of Bellaire, Texas,

861 F.2d 453, 456 (5th Cir.1988); Benavides v. County of Wilson,

955 F.2d 968, 972 (5th Cir.), c ert. denied,

--- U.S. ----, 113

S.Ct. 79, 121 L.Ed.2d 43 (1992). In light of the law enforcement

duties assigned to deputies, the obvious need for a thorough and

good faith investigation of Burns, a nd the equally obvious fact

that inadequate screening of a deputy could likely result in the

violation of citizens' constitutional rights, S heriff Moore can

r easonably be said to have acted with deliberate indifference to

the public's welfare when he hire d Burns. S ee City of Canton v.

Harri s, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412

(1989). 25 The failure to conduct a good faith investigation of the

prospective employee amounted to Sheriff Moore deliberately closing

his eyes to the B urns' background. 2 6 Such indifferent behavior

cannot be tolerated when the prospective applicant will be employed

in a position of trust and authority.30

Additionally, the jury could find that hiring an unqualified

applicant and authorizing him to make fo rcible arrests actually

caused the injuries suffered by Mrs. Brown. That is, the

policymaker's (She r iff Moore's) single action of hiring Burns

without a n adequate review of his background directly caused the

constitutional violations of which Mrs. Brown now com plains.

Benavides, 955 F.2d at 972; F raire v. City of Arlington, 957 F.2d

1268, 1277 (5th Cir.) (section 1983 liability attaches only "where

the municipality itself causes the constitution al violation" at

issue), cert. denied,

--- U.S. ----, 113 S.Ct. 462, 121 L.Ed.2d 371

(1992). Therefore, the violation of Mrs. Brown's constitutional

rights was affirmatively linked to Bryan County's decision to hire

Burns for law enforcement activities. S tokes v. Bullins, 844 F.2d

269, 276 (5th Cir.1988).

B.

Mrs. Brown also contends that Bryan County is liable for

inadequately training Burns. The Supreme Court specifically

addressed claim s for inadequate training in C ity of Canton v.

Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In

reference to these claims, the Court stated that "only where a

municipality's failure to train its employees in a relevant respect

evidenc es a "deliberate indifference' to the rights of its

inhabitants can such a shortcoming be properly thought of as a city

"policy or custom' that is actionable under § 1983." Id. at 389,

109 S.Ct. at 1205. It also added the following:

That a particular officer may be unsatisfactorily trained will

not alone suffice to fasten liability on the city, for the27 Oklahoma law allows a sheriff to employ reserve deputies

during their completion of CLEET. See O KLA .S TAT .A NN . tit. 19, §

547(B) (West 1994).

31 officer's shortc omings may have resulted from factors other

than a faulty training program.... Neither will it suffice to

prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip

him to avoid the particular injury-causing conduct.

Id. at 390-91, 109 S.Ct. at 1206 (internal citations omitted). A

review of the record reveals that Sheriff Moore had enrolled Burns

in the state-mand ated Council on Law Enforcement Education and

Training (CLEET) program while he worked as a Reserve Deputy. 27 As

there is no evidence that Sheriff Moore did anything less than that

which is required by law, we do not find the tr aining practices

inadequate. See Benavides v. County of Wilson, 955 F.2d 968, 973

(5th Cir.), cert. denied,

--- U.S. ----, 113 S.Ct. 79, 121 L.Ed.2d

43 (1992). Although Mrs. Brown's expert urged that additional

ins t ructional programs were necessary to supplement the CLEET

course and on-the-job training, there is no evidence suggesting

that the training standard required by law was inadequate to enable

the deputies to deal with "usual and recurrin g situations"

typically faced by peace officers. I d. In addition,

failure-to-train cases—unlike the negligent-hiring

cases— specifically require more than a single instance of injury or

an isolated case of one poorly traine d employee before municipal

liability can attach. S ee, e.g., Languirand v. Hayden, 717 F.2d

220 (5th Cir.1983) (holding that, in failure- to-train cases, the

plaintiff must es tablish a p attern of similar incidents in which

citizens were injured or endangered by intentional or negligent32

police misconduct or that serious incompetence or misbehavior was

general or widespread throughout the police force); F raire v. City

of Arlington, 957 F.2d 1268, 1287 (5th Cir.) (holding that, in

failure-to-train cases, " "[i]sol ated violations are not the

persistent, often repeated constant violations that constitute

custom and policy' "), cert. denied,

--- U.S. ----, 113 S.Ct. 462,

121 L.Ed.2d 371 (1992); R odriguez v. Avita, 871 F.2d 5 52 (5th

Cir.1989) (discussing Languirand, supra, and concluding that

municipal liability could not be derived from a single incident of

improvident discharge of a firearm by an officer). As Mrs. Brown

claims that only Burns was inadequately trained and cites neither

to ot her similar incidents nor widespread misbehavior, her claim

alleging inadequate training must fail.

CONCLUSION

After a thorough review of the record, this Court finds that

the evidence supports the jury's verdict holding Burns and Bryan

C ounty liable for Mrs. Brown's § 1983 claim based on her false

arrest, false imprisonment and the inadequate hiring of Burns. We

also find that the district court did not plainly err in dismissing

the jury's award for Mrs. Brown's los s of past income and future

earning capacity. For these reasons, the jury's verdict stands and

the district court's judgment is

AFFIRMED.

EMILIO M. GARZA, Circuit Judge, concurring in part and

dissenting in part:

Alt hough I concur in most of the opinion of the Court, I

dissent from Part VI of the opinion and the jud gment as to Bryan1 Monell v. Department of Social Servs., 436 U.S. 658, 98

S.Ct. 2018, 56 L.Ed.2d 611 (1978).

33 County. My disagreement is with the majority's treatment of the

Monell 1 issue—"that a single incident of unconstitutional activity

will not suffice to hold a municipality liable under Monell " unless

proof of the incid ent includes proof that it was caused by an

existing, u nconstitutional municipal policy, which policy can be

attributed to a municipal policymaker[,]' " maj. op. at 3966

(emphasis added)—which is based on our prior opinion in Gonzales.