IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20624

JOSE VALLE, Individually and as Representative of the Estate of Omar

Esparza; ASUNCION VALLE

Plaintiffs - Appellants

v.

CITY OF HOUSTON,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY and GARZA, Circuit Judges and STARRETT , District Judge.

*

EMILIO M. GARZA, Circuit Judge:

Omar Esparza was shot and killed by Houston police officers during an

incident at his family’s home. His parents, Plaintiffs-Appellants Jose and

Asuncion Valle (the “Valles”), individually and as representatives of their son’s

estate, sued the City of Houston (“City”) seeking relief under 42 U.S.C. § 1983.

The district court granted summary judgment in the City’s favor on all claims.

For the reasons set forth below, we AFFIRM.

I

On the day of the incident, Esparza—who apparently had been suffering

from depression and anxiety in the preceding months—became upset and locked

United States Court of Appeals

Fifth Circuit

F I L E D

July 30, 2010

Lyle W. Cayce

Clerk

 District Judge of the Southern District of Mississippi, sitting by designation. *

Case: 09-20624 Document: 00511189994 Page: 1 Date Filed: 07/30/2010
No. 09-20624

himself inside the family home and refused to allow his parents to enter. After

about an hour, the Valles called 911 for assistance and requested a

Spanish-speaking operator because neither of them spoke English. The Valles

apparently hoped that the 911 call would bring medical assistance for their son.

The 911 dispatcher sent police officers to the Valles’ home. The Valles

allegedly showed the first officer on the scene, Officer Duarte, papers from their

previous attempts to get Esparza admitted to a hospital for psychiatric

treatment and requested that he help them get medical care for their son.

Duarte then approached the front door of the house and conversed with Esparza

(both Duarte and Esparza spoke English). Officers Walsh, Seay, and Chaisson

then arrived and spoke with Esparza, who stated he would not come out of the

house and would not let anyone in. The officers contacted their supervisor,

Sergeant Bryant, who assumed control of the situation upon his arrival. After

unsuccessfully attempting to communicate with Esparza, Sergeant Bryant

contacted police headquarters to report the situation and seek orders. Captain

Williams of the Special Weapons and Tactical/Hostage Negotiation Team

(“SWAT”) directed Sergeant Bryant to get a Crisis Intervention Team (“CIT”)

special officer to negotiate with Esparza. CIT Officer Broussard was called to

the scene. She negotiated with Esparza for about thirty to forty minutes, but

was unable to get him to come out of the house or allow officers into the house.

The other non-CIT officers, without consulting Officer Broussard, sought and

received permission from Captain Williams to forcefully enter the house.

Esparza was not a suspect in any criminal activity, nor had he threatened the

officers or himself. Nonetheless, Captain Williams authorized the entry and

seizure, although he was neither present at the scene nor had any direct

communication with CIT Officer Broussard.

Sergeant Bryant and three other officers armed themselves with a Taser,

a shotgun loaded with soft-impact bean bags, and their sidearms. While CIT

2

Case: 09-20624 Document: 00511189994 Page: 2 Date Filed: 07/30/2010
No. 09-20624

Officer Broussard was still conversing with Esparza through the front door,

Sergeant Bryant and Officers Chaisson, Duarte, and Walsh forcibly entered a

side door of the house. The City alleged that Esparza was in possession of a

hammer and charged at the officers when they entered. Less than thirty seconds

after entry, the officers began discharging their weapons. Sergeant Bryant fired

three blasts of non-lethal soft-impact beanbags from the shotgun he was carrying

but was, apparently, unable to stop Esparza. Walsh fired his Taser and missed

Esparza. Chaisson then fired his 40-caliber automatic pistol six times at

Esparza—three bullets struck him. After the assault subsided, Mrs. Valle

entered the home and saw her son lying on the floor; she saw no hammer.

1

Esparza died from his wounds.

SWAT Captain Williams was disciplined by the police department for his

role in approving entry into the Valles’ home. He successfully appealed his

reprimand on the basis that he had acted within the policies and procedures of

the police department.

The Valles sued the City pursuant to 42 U.S.C. § 1983, alleging violations

2

of the Fourth and Fourteenth Amendments flowing from the officers’

warrantless forcible entry into their home and lethal seizure of Esparza. The

Valles alleged that the officers exercised excessive force in entering their home

and seizing Esparza pursuant to a City policymaker’s orders, and that the City

was liable under § 1983 for failure to properly train the officers who entered

their home. The district court granted the City’s first motion for summary

judgment, finding that the decision to enter the Valles’ home was not made by

a City policymaker, and thus no City policy was a moving force in causing the

In its summary judgment opinion, the district court improperly resolved the factual 1

dispute about whether Esparza possessed a hammer in the City’s favor. It should have

credited Mrs. Valle’s testimony that her son did not have a hammer.

 The Valles did not sue any of the officers involved in the shooting of their son. 2

3

Case: 09-20624 Document: 00511189994 Page: 3 Date Filed: 07/30/2010
No. 09-20624

Valles’ injuries. The district court also granted the City’s second motion for

summary judgment finding that, although the Valles raised a material fact issue

as to the City’s failure to train the officers, the Valles failed to show that a city

policymaker acted with deliberate indifference and that the allegedly inadequate

training was a moving force in bringing about the constitutional violation.

II

We dispose first of the City’s claim that the Valles lack standing. The City

argues that Esparza may have had a son, which would require administration

of Esparza’s estate under Texas law, thereby raising a question whether

Appellant Jose Valle is the proper party to administer the estate.

We find the City’s arguments without merit. Texas law provides that

when a person dies intestate, as Esparza did, the decedent’s estate immediately

vests in his heirs at law, subject to the payment of any debts of the estate. TEX.

PROB. CODE ANN. § 37. Title to any estate passes equally to the decedent’s

parents in the absence of a spouse or children. Id. at § 38(a)(2), (b)(2).

Administration of the estate is necessary if “two or more debts exist against the

estate.” Id. at § 178(b). As required, the Valles submitted evidence

demonstrating that an estate administration was neither pending nor necessary.

See Shepherd v. Ledford, 962 S.W.2d 28, 31–32 (Tex. 1998) (holding that heirs

at law may maintain a wrongful death or survival suit without administration

of the estate if they allege and prove that there is no administration pending and

none necessary). Even if Esparza did have a son, a point that the parties

contest, the Valles still have standing under Texas law to recover wrongful death

damages on behalf of themselves and all others entitled to recover under the

wrongful death statute. TEX. CIV. PRAC. & REM. CODE ANN. § 71.004(b). The

City’s conclusory allegation that Esparza’s estate requires administration is

insufficient. Accordingly, the district court’s determination that the Valles have

standing to sue was correct.

4

Case: 09-20624 Document: 00511189994 Page: 4 Date Filed: 07/30/2010
No. 09-20624

III

This court reviews a grant of summary judgment de novo. Mack v. City of

Abilene, 461 F.3d 547, 555 (5th Cir. 2006) (citing Morris v. Dillard Dep’t Stores,

277 F.3d 743, 747 (5th Cir. 2001)). Summary judgment is appropriate only if no

genuine issue of material fact exists. FED. R. CIV. P. 56. All facts and inferences

are construed in the light most favorable to the non-moving party. Murray v.

Earle, 405 F.3d 278, 284 (5th Cir. 2005).

IV

A

The Valles argue that the City is liable for entering their home in violation

of the Fourth Amendment and for using excessive force to seize their son, which

resulted in his death. The Valles assert that Captain Williams was acting as the

City’s final policymaker with respect to arrests and seizures when he authorized

entry into the Valles’ home, and thus his actions constitute City policy for the

seizure at issue here.

It is well established that a city is not liable under § 1983 on the theory of

respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). A

municipality is liable only for acts directly attributable to it “through some

official action or imprimatur.” Piotrowski v. City of Houston, 237 F.3d 567, 578

(5th Cir. 2001). To establish municipal liability under § 1983, a plaintiff must

show the deprivation of a federally protected right caused by action taken

“pursuant to an official municipal policy.” See Monell, 436 U.S. at 691. A

plaintiff must identify: “(1) an official policy (or custom), of which (2) a

policymaker can be charged with actual or constructive knowledge, and (3) a

constitutional violation whose ‘moving force’ is that policy or custom.” Pineda

v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002) (citing Piotrowski, 237 F.3d

at 578).

5

Case: 09-20624 Document: 00511189994 Page: 5 Date Filed: 07/30/2010
No. 09-20624

The existence of a policy can be shown through evidence of an actual

policy, regulation, or decision that is officially adopted and promulgated by

lawmakers or others with policymaking authority. Burge v. St. Tammany

Parish, 336 F.3d 363, 369 (5th Cir. 2003). “[A] single decision by a policy maker

may, under certain circumstances, constitute a policy for which a [municipality]

may be liable.” Brown v. Bryan County, 219 F.3d 450, 462 (5th Cir. 2000).

However, this “single incident exception” is extremely narrow and gives rise to

municipal liability only if the municipal actor is a final policymaker. Bolton v.

City of Dallas, 541 F.3d 545, 548 (5th Cir. 2008) (citing Woodard v. Andrus, 419

F.3d 348, 352 (5th Cir. 2005)).

Under the second prong, “[a]ctual or constructive knowledge of [a] custom

must be attributable to the governing body of the municipality or to an official

to whom that body has delegated policy-making authority.” Webster v. City of

Houston, 735 F.2d 838, 842 (5th Cir. 1984) (en banc); see also Piotrowski, 237

F.3d at 579. This circuit has long distinguished between final decisionmaking

authority and final policymaking authority. See Jett v. Dallas Indep. Sch. Dist.,

7 F.3d 1241, 1247 (5th Cir. 1993) (citing Pembaur v. City of Cincinnati, 475 U.S.

469, 484 n.12 (1986) and Praprotnik, 485 U.S. at 130). A municipal policymaker

is someone who has “the responsibility for making law or setting policy in any

given area of a local government’s business.” City of St. Louis v. Praprotnik, 485

U.S. 112, 125 (1988). “Municipal liability attaches only where the decisionmaker

possesses final authority to establish municipal policy with respect to the action

ordered.” Pembaur, 475 U.S. at 481. Whether an official possesses final

policymaking authority for purposes of municipal liability is a question of state

and local law. Id. at 482.

The third prong requires a plaintiff to prove “moving force” causation. To

succeed, “a plaintiff must show that the municipal action was taken with the

requisite degree of culpability and must demonstrate a direct causal link

6

Case: 09-20624 Document: 00511189994 Page: 6 Date Filed: 07/30/2010
No. 09-20624

between the municipal action and the deprivation of federal rights.” Bd. of the

County Comm’rs v. Brown, 520 U.S. 397, 404 (1997). That is, “the plaintiff must

demonstrate that a municipal decision reflects deliberate indifference to the risk

that a violation of a particular constitutional or statutory right will follow the

decision.” Id. at 411. Deliberate indifference is a high standard—“a showing of

simple or even heightened negligence will not suffice.” Piotrowski, 237 F.3d at

579 (quoting Brown, 520 U.S. at 407).

The Valles do not argue that the City has a formal written policy or custom

that caused the unconstitutional seizure of their son. Instead, they contend

3

that the City is liable for Captain Williams’s single unconstitutional decision to

order entry into their home to seize their son. To succeed on this claim, the

Valles must show that Captain Williams had final policymaking authority and

that his decision was the moving force behind the constitutional injury. The

Valles appear to argue that some lesser “decisionmaking” authority to make the

one-time decision at issue is sufficient. See Pembaur, 475 U.S. at 481 (“If the

decision to adopt that particular course of action is properly made by that

government’s authorized decisionmakers, it surely represents an act of official

government ‘policy’ as that term is commonly understood.”). This argument is

based on a misunderstanding of Pembaur and this circuit’s precedent. See

Bolton, 541 F.3d at 548–50 (discussing the distinction between final

decisionmaking authority and final policymaking authority and noting that a

municipality may only be liable for a decision of a final policymaker). We have

long recognized that the “discretion to exercise a particular function does not

The only formal policy referred to by the parties is the police department’s General

3

Order (“GO”) 600-05, which defines the appropriate course of action for SWAT officers to follow

in special threat situations (i.e., a barricaded suspect). The district court determined that this

policy was neither unlawful nor the moving force behind the alleged constitutional violations. 

Indeed, Captain Williams was reprimanded for ordering the forceful entry of the Valles’ home

because that decision was found to be a violation of GO 600-05.

7

Case: 09-20624 Document: 00511189994 Page: 7 Date Filed: 07/30/2010
No. 09-20624

necessarily entail final policymaking authority over that function.” Bolton, 541

F.3d at 549 (citing Praprotnik, 485 U.S. at 130; Pembaur, 475 U.S. at 483–84);

Jett, 7 F.3d at 1247.

Under Chapter 34 of the City Code of Ordinances, the Chief of Police may

delegate authority to another and such person “so designated shall be vested

with the full authority of the office of chief of police.” HOUSTON, TEX. CODE OF

ORDINANCES §§ 34-24. The Valles contend that the Chief of Police exercised his

policymaking authority in promulgating GO 600-05, which delegates the Chief’s

full policymaking authority to the Assistant Chief of Police for Tactical

Operations and to the Captain of Tactical Operations—here, Captain Williams.

They further argue that Special Operating Procedure (“SOP”) 200/1.01

specifically designated the Captain of Tactical Operations as the person

responsible for determining how to implement GO 600-05. In particular, SOP

200/1.01 states that the Captain of Tactical Operations shall be contacted

regarding a special threat situation and “will determine whether a full, partial

or no SWAT response is appropriate.” The Valles contend that when a decision

is made under GO 600-05 and SOP 200/1.01 about how to handle a special threat

situation, the person who makes that decision is “making policy for the specific

arrest” because the designated decisionmaker is exercising authority delegated

by the chief of police who is the final policymaker for arrest decisions.

Although GO 600-05 and SOP 200/1.01 confer decisionmaking or

operational command authority on Captain Williams, it does not follow that

Captain Williams, or another person to whom such authority is delegated, acts

in a policymaking capacity. Captain Williams was afforded a certain measure

of discretion in carrying out the City’s policy. But “[w]hen an official’s

discretionary decisions are constrained by policies not of that official’s making,

those policies, rather than the subordinate’s departures from them, are the act

of the municipality.” Praprotnik, 485 U.S. at 127. The Valles do not contend

8

Case: 09-20624 Document: 00511189994 Page: 8 Date Filed: 07/30/2010
No. 09-20624

that either GO 600-05 or SOP 200/1.01 were policies made by Captain Williams

pursuant to delegated policymaking authority. Rather, they are policies made

by other officials that Williams was required to follow. Assuming that Captain

Williams was delegated some level of decisionmaking authority, GO 600-05 and

SOP 200/1.01 constrained his authority and set forth the range of choices which

he could make in a given situation. The fact that Captain Williams made the

final decision in this situation does not mean that he was setting City policy

regarding the making of arrests. Nor does the fact that Captain Williams’s

4

decision violated Esparza’s right to be free of an unconstitutional seizure elevate

his decision to one attributable to the municipality.

5

Although Captain Williams’s decision to order entry into the home was

arguably the “moving force” behind the constitutional violations that resulted in

Esparza’s death, because his decision was not a decision by a final policymaker

of the City, the City cannot be liable. Thus, the district court properly granted

summary judgment on the Valles’ municipal liability claim against the City.

B

The Valles also argue that the City is liable because it failed to adequately

train its patrol supervisors in the use of CIT tactics. As a result, the Valles

The Valles argue that because the “City’s rules, orders, and policies point to [Captain] 4

Williams to make the decision and gave him this authority to do so—a straight delegation from

the chief,” it follows that Captain Williams’s decision to tell the officers to forcefully enter the

Valles’ home was “the City’s policy for that arrest.” If this argument were correct, then a

municipality could be liable for almost any decision of its employees that resulted in a

constitutional violation because the unconstitutional decision could be said to be the policy for

that particular decision. Such a theory of liability has been soundly rejected. See, e.g.,

Praprotnik, 485 U.S. at 126 (“If the mere exercise of discretion by an employee could give rise

to [liability for] a constitutional violation, the result would be indistinguishable from

respondeat superior liability.”).

The Valles contend for the first time in their reply brief that even if Captain 5

Williams’s decision to order entry of their home was not an exercise of policymaking authority,

the City is nonetheless liable for that decision because it ratified Williams’s unconstitutional

actions. The Valles have waived this argument by failing to raise it in their opening brief.

See, e.g., Tharling v. City of Port Lavaca, 329 F.3d 422, 430 (5th Cir. 2003).

9

Case: 09-20624 Document: 00511189994 Page: 9 Date Filed: 07/30/2010
No. 09-20624

contend that the CIT officer on the scene at their home was overruled by a nonCIT-trained supervisor, which resulted in immediate and lethal escalation of the

situation, an outcome that CIT training was intended to prevent.

The standard applicable to a failure-to-train claim is the same as the

standard for municipal liability. Roberts v. City of Shreveport, 397 F.3d 287, 293

(5th Cir. 2005). “The failure to provide proper training may fairly be said to

represent a policy for which the city is responsible, and for which the city may

be held liable if it actually causes injury.” Bryan County, 219 F.3d at 457

(quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). “In resolving the

issue of a city’s liability, the focus must be on adequacy of the training program

in relation to the tasks the particular officers must perform.” City of Canton,

489 U.S. at 390. A plaintiff must show that (1) the municipality’s training policy

or procedure was inadequate; (2) the inadequate training policy was a “moving

force” in causing violation of the plaintiff’s rights; and (3) the municipality was

deliberately indifferent in adopting its training policy. See, e.g., Sanders-Burns

v. City of Plano, 594 F.3d 366, 381 (5th Cir. 2010); Pineda, 291 F.3d at 332.

1

To show that the City’s training was inadequate, the Valles presented

evidence that the City chose not to implement a 2004 proposal for additional

mandatory CIT training, prepared at the direction of the Executive Assistant

Chief of Police. According to the proposal, CIT training is “a proven curriculum

for helping officers safely de-escalate situations involving individuals in serious

mental health crises.” The 2004 proposal made two recommendations relevant

here: (1) that all patrol officers be required to complete twenty-four hours of CIT

training, and (2) that all patrol sergeants be required to complete CIT training.

The first proposal was intended to address the underutilization of CIT

officers. Lieutenant Mike Lee, of the police department’s Mental Health Unit,

testified that CIT training gives officers a basic understanding of mental health

10

Case: 09-20624 Document: 00511189994 Page: 10 Date Filed: 07/30/2010
No. 09-20624

issues and appropriate de-escalation and communication tactics. Yet, the

proposal noted that CIT-trained officers only handled thirty percent of CIT calls.

It also noted the potential liability that could flow from officers not trained in

proper de-escalation tactics responding to volatile situations. The proposal

specifically noted: “If we dispatch a non-CIT officer to a CIT call and the officer

shoots and kills the mental health consumer, the community will ask why we

didn’t use a CIT officer. We could be liable if a CIT officer was available but not

used.”

The second recommendation was intended to preclude possible conflicts

that could arise between a lower-ranked CIT-trained officer and a higher-ranked

non-CIT-trained officer that might result in the higher-ranked officer

“overcalling” the CIT officer’s suggested approach to the situation. Lieutenant

Lee described CIT training as “180 degrees different than . . . typical police

officer and law enforcement training.” For instance, situations involving

mentally ill persons require a greater degree of patience and can require use of

CIT tactics for periods as long as twenty-four hours. CIT-trained officers are

trained not to “let the pressure of time be a factor in [their] decisionmaking.”

Supervisors, such as Sergeant Bryant, are supposed to “allow CIT officers to do

their jobs with the least amount of interference possible,” but “ultimate control”

nonetheless rests with the supervisor, not a junior CIT-trained officer. Thus

Lieutenant Lee recommended that the City either allow the CIT-trained

officer—even if lower ranked—to be in charge of a scene involving a mentally ill

person or train all supervisors to a level equal to that of the junior CIT officers

so that conflicts would be less likely to occur. The Assistant Chief and Chief of

Police considered the proposals but decided not to implement either.

6

The district court determined that the Chief of Police and Executive Assistant’s

6

decision not to implement the proposal was an official policymaking decision. The City does

not contest this finding.

11

Case: 09-20624 Document: 00511189994 Page: 11 Date Filed: 07/30/2010
No. 09-20624

We agree with the district court that the Valles presented sufficient

summary judgment evidence to raise a jury question whether the department’s

decision not to implement the CIT training recommendations in the 2004

proposal constituted an official policy of failing to adequately train. The Valles

also raised a factual question whether a City policymaker (i.e., the Chief of

Police) had actual or constructive knowledge of the alleged inadequacy. The

2004 proposal suggests that the City recognized that mental health situations

were not being adequately dealt with by CIT-trained officers and that there was

a need for additional CIT training. The proposal recommends a course of action,

but the City declined to implement those recommendations. The City points to

evidence that the Chief of Police and Executive Assistant Chief had to balance

the need for training with practical considerations such as budgetary and time

constraints, and that instead of adopting the proposal, the City attempted to

identify CIT-trained officers for dispatch purposes to increase the percentage of

CIT calls actually handled by CIT officers. Although this evidence suggests that

the City did not completely ignore the issues raised by the 2004 proposal and

sought other ways to deal with them, it highlights the factual dispute whether

the City’s training and its response to the proposal were inadequate.

2

As to the second requirement for municipal liability, the district court

found insufficient evidence of causation to survive summary judgment.

Plaintiffs must meet a heightened standard of causation in order to hold a

municipality liable under § 1983. See City of Canton, 489 U.S. at 391–92. Thus,

we require that the municipality’s failure to train be the “moving force” that

caused the specific constitutional violation. Bryan County, 219 F.3d at 461. In

other words, the plaintiff must establish a “direct causal link” between the

municipal policy and the constitutional injury. Brown, 520 U.S. at 404. “We

have said that the connection must be more than a mere ‘but for’ coupling

12

Case: 09-20624 Document: 00511189994 Page: 12 Date Filed: 07/30/2010
No. 09-20624

between cause and effect. The deficiency in training must be the actual cause

of the constitutional violation.” Thompson v. Connick, 578 F.3d 293, 300 (5th

Cir. 2009), cert. granted, – S. Ct. –, 2010 WL 1005953 (U.S. Mar. 22, 2010) (No.

09-571) (internal quotations and citations omitted).

The Valles have failed to present sufficient evidence of causation as to the

entry of their home. That decision was made by Captain Williams, the head of

the tactical SWAT team, who was trained in CIT tactics. Moreover, although

CIT Officer Broussard testified that she was neither told nor consulted about

making entry into the home, she further testified that she did not disagree with

the decision to enter. While we are troubled that Captain Williams never spoke

directly with the only CIT officer on the scene prior to ordering the forceful entry

of the Valles’ home, any alleged lack of CIT training was not the “moving force”

in the decision to enter the home.

However, we find that there is sufficient evidence of causation to survive

summary judgment with respect to the escalation of force after the officers’

entry. The district court reasoned that because CIT Officer Broussard was on

the scene, the first goal of the 2004 training proposal))to increase the use of CIT

officers in situations such as involved in this case))was accomplished even

though that 2004 policy had not been implemented. Although Officer Broussard

was present, she was not one of the officers who entered the Valles’ home.

Moreover, there is no record evidence that the officers who did enter the Valles’

home had received any CIT training. Lieutenant Lee emphasized that CIT

training is “180 degrees different” from standard patrol officer training and

agreed that the “command techniques that are employed to take a criminal

suspect into custody can . . . serve to escalate contact with the mentally ill into

violence.” Furthermore, Assistant Chief Michael Dirden, at the time responsible

for internal investigations, testified that he had concerns that the officers who

handled the situation were not adequately prepared to do so. In addition, the

13

Case: 09-20624 Document: 00511189994 Page: 13 Date Filed: 07/30/2010
No. 09-20624

Valles’ expert opined that “there is a substantially greater likelihood that

[Esparza] would [have] survive[d] if the officers going in there are the very best

trained, best equipped, best prepared to deal with any kind of eventuality.” On

the other hand, the City presented some testimony to the effect that CIT

training may not have changed the outcome and that Esparza’s death was not

an incident that would have been addressed by implementation of the 2004

training proposal. At best, the City’s evidence raises a factual dispute whether

failure to train all of the patrol officers involved in the incident in CIT tactics

was a moving force in the precipitous escalation of force following their entry,

which violated Esparza’s constitutional rights.

3

The district court also found that the Valles failed to raise a genuine issue

of material fact on the deliberate indifference prong. Although we find this a

closer question than the district court apparently did, we ultimately conclude

that the Valles did not present evidence sufficient to survive summary judgment.

“Deliberate indifference is a stringent standard, requiring proof that a municipal

actor disregarded a known or obvious consequence of his action.” Bryan County,

219 F.3d at 457 (quoting Brown, 520 U.S. at 410) (internal quotation marks

omitted). Deliberate indifference is more than negligence or even gross

negligence. See Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381

(5th Cir. 2005) (citation omitted). The Valles must show that “in light of the

duties assigned to specific officers or employees the need for more or different

training is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can reasonably be said to

have been deliberately indifferent to the need.” City of Canton, 489 U.S. at 390.

Usually a plaintiff must show a pattern of similar violations, and in the case of

an excessive force claim, as here, the prior act must have involved injury to a

third party. See Sanders-Burns, 594 F.3d at 381.

14

Case: 09-20624 Document: 00511189994 Page: 14 Date Filed: 07/30/2010
No. 09-20624

The Valles presented some evidence that the City’s decision not to

implement the 2004 CIT training proposal could potentially lead to the

deprivation of constitutional rights. Contrary to the district court’s findings, we

think that the 2004 proposal was, at least in part, intended to address the

potential for the unconstitutional use of excessive force against mentally ill

persons. Although the proposal does not explicitly state that it was intended to

prevent constitutional violations, we think the use of “magic words” denoting

that a policy is intended to address constitutional violations or § 1983 liability

are unnecessary. The 2004 training proposal shows that City policymakers

7

were aware that the CIT program was being significantly underutilized, even

though it was “proven . . . for helping officers safely de-escalate situations

involving individuals in serious mental health crises.” The proposal explicitly

acknowledged potential liability (albeit without referencing § 1983) arising from

not using CIT officers in situations that called for CIT tactics. Furthermore, it

specifically referenced an example of a non-CIT officer shooting and killing a

mentally ill person, a factually similar situation to that here, and specifically

referenced liability for failure to train. The reasonable inference from the

proposal’s discussion of these liability issues is that the City was concerned

about the potential for excessive force liability, even though no explicit mention

of “constitutional violations” was made. Thus, in our view, the proposal tends

to show that City officials were aware of the potential for constitutional

violations in situations involving mentally ill persons.

Requiring that a training proposal include explicit reference to the potential for 7

constitutional violations or § 1983 liability in order to hold a municipality liable for failing to

implement such a proposal would have perverse consequences. If such a rule existed,

municipalities could very simply shield themselves from liability by couching training

proposals in ambiguous language or otherwise excluding explicit discussion of the potential

constitutional injury that the proposal is intended to address.

15

Case: 09-20624 Document: 00511189994 Page: 15 Date Filed: 07/30/2010
No. 09-20624

However, the Valles did not link this potential for constitutional violations

to a pattern of actual violations sufficient to show deliberate indifference. The

proposal does not detail any prior specific instances of the use of excessive force

by non-CIT officers. Nor did the Valles elicit testimony that City officials were

aware of prior shootings of unarmed mentally ill individuals. The Valles did

present some testimony showing that an assistant police chief was, at least,

vaguely aware of two shootings of mentally ill persons that occurred after

Esparza was killed. However, even assuming that these later shootings involved

excessive force, they are not sufficient to show that the City was on notice of

similar constitutional violations before Esparza was killed. See Davis, 406 F.3d

at 383 (holding that the deliberate indifference standard requires showing “that

the failure to train reflects a deliberate or conscious choice to endanger

constitutional rights” (emphases added)). Furthermore, although the 2004

proposal noted that more than 70 percent of all CIT calls were cleared by nonCIT officers, that statistic says nothing about a pattern of constitutional

violations because the mere fact of non-CIT officers responding to CIT calls is not

itself a violation of any constitutional right. The Valles cannot show a pattern

of excessive force without some link between that statistic and specific instances

where such a response resulted in constitutional violations. The Valles’ expert’s

testimony, based on two Houston Chronicle articles pre-dating Esparza’s

shooting, that “[a]t least 10 mentally ill people shot [by Houston officers] were

unarmed or carrying objects such as screwdrivers or pieces of wood,” is also

insufficient. This testimony does tend to suggest that prior shootings of

mentally ill persons in fact had occurred, but it does not establish a pattern of

constitutional violations. Prior instances must point to the specific violation in

question; “notice of a pattern of similar violations is required.” Id. Although it

is possible to infer that these prior shootings may have involved the use of

excessive force, that inference is too tenuous to survive summary judgment. For

16

Case: 09-20624 Document: 00511189994 Page: 16 Date Filed: 07/30/2010
No. 09-20624

one, a police officer may be justified in using lethal force against a person

carrying a screwdriver or other object, depending on the circumstances. See

Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (citing Mace v. City of

Palestine, 333 F.3d 621, 624 (5th Cir. 2003)) (“Use of deadly force is not

unreasonable when an officer would have reason to believe that the suspect

poses a threat of serious harm to the officer or others.”). Some greater level of

detail about these prior shootings is required. See Davis, 406 F.3d at 383 (“Prior

indications cannot simply be for any and all ‘bad’ or unwise acts, but rather must

point to the specific violation in question.”) (citations omitted).

We further note that it is difficult to show deliberate indifference in a case

such as this one where the City has implemented at least some training. The

very fact that the City trained a corps of officers in CIT tactics, demonstrates

that it was not deliberately indifferent to the dangers of police interactions with

mentally ill residents. The City considered the proposal, as well as resource

constraints, and determined that the best allocation of limited resources and

personnel was to keep the CIT training at the then-current levels. We do not

mean to say that anytime a municipality must make decisions about resource

allocations, such a decision will preclude a finding of deliberate indifference.

Indeed, we can imagine scenarios in which a municipality’s decision not to

allocate resources to training necessary to prevent constitutional violations

would constitute deliberate indifference. But that is not the case before us. As

we indicated in the discussion of causation, additional training both in terms of

the number of officers who were so trained and the quantity of training that each

officer received may have made a difference for Esparza. But without a

demonstrated link showing constitutional violations, notwithstanding the level

of training the City had already implemented, we cannot say that the City was

deliberately indifferent.

17

Case: 09-20624 Document: 00511189994 Page: 17 Date Filed: 07/30/2010
No. 09-20624

Nor did the Valles present sufficient summary judgment evidence to

succeed in showing deliberate indifference under the single incident exception.

Proof of deliberate indifference is difficult, although not impossible, to base on

a single incident. Sanders-Burns, 594 F.3d at 381. The “single incident

exception” is extremely narrow; “a plaintiff must prove that the highly

predictable consequence of a failure to train would result in the specific injury

suffered, and that the failure to train represented the moving force behind the

constitutional violation.” Id. (citations and internal quotations omitted)

(emphasis added). In the one case in which we found a single incident sufficient

to support municipal liability, there was an abundance of evidence about the

proclivities of the particular officer involved in the use of excessive force. See

Bryan County, 219 F.3d at 462 (finding deliberate indifference based on the

police officer’s known “personal record of recklessness and questionable

judgment,” inexperience, exuberance, and involvement in forcible arrest

situations). On the other hand, we have rejected claims of deliberate

indifference even where a municipal employer knew of a particular officer’s

propensities for violence or recklessness. See, e.g., Davis, 406 F.3d at 382–85

(finding no deliberate indifference even though city was aware that officer fired

weapon inappropriately, had a propensity for violence, and had received citizen

complaints about the officer); Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir.

1998) (rejecting claim of deliberate indifference even though evidence showed

officer was extremely stressed, may have had a quick temper, and was

aggressive). This court has been wary of finding municipal liability on the basis

of a single incident to avoid running afoul of the Supreme Court’s consistent

rejection of respondeat superior liability. See, e.g., Pineda, 291 F.3d at 334–35

(noting that the court rarely finds municipal liability for a failure to train claim

on the basis of a single incident).

18

Case: 09-20624 Document: 00511189994 Page: 18 Date Filed: 07/30/2010
No. 09-20624

Here, the Valles did not allege or offer evidence that the officers who

responded to their call had a propensity for using excessive force, violence, or

were otherwise reckless. Our case law does not specifically require evidence of

such character traits, but such evidence certainly is probative in determining

that a “highly predictable” consequence of sending the particular officers into a

particular situation would be a constitutional violation. Rather, the Valles

attempted to show that a “highly predictable” consequence of sending non-CIT

officers to a situation involving a mental health consumer would be an

unconstitutional use of excessive force. “The single incident exception requires

proof of the possibility of recurring situations that present an obvious potential

for violation of constitutional rights and the need for additional or different

police training.” Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000)

(citing Brown, 520 U.S. at 409).

Although the evidence shows the possibility—perhaps even the

likelihood—of recurring situations involving mental health consumers, the

evidence is far more equivocal on the question whether there was an obvious

potential for the violation of constitutional rights and an obvious need for more

or different training. The Valles presented evidence that in the three years

preceding Esparza’s shooting, Houston police received approximately forty calls

per day involving situations in which CIT tactics would be appropriate. Less

than thirty percent of those calls were actually answered by CIT-trained officers.

Coupled with Lieutenant Lee’s testimony that general patrol training is “180

degrees different” from CIT training, these figures suggest that it was, if not

obvious that more CIT training was necessary, at least an issue on the City’s

radar. However, as discussed above, the Valles did not produce evidence to meet

the high hurdle of showing that excessive force was an obvious consequence of

non-CIT officers responding to CIT situations. Indeed, in considering the singleincident exception, “[s]everal panels of this court . . . have reviewed cases where

19

Case: 09-20624 Document: 00511189994 Page: 19 Date Filed: 07/30/2010
No. 09-20624

a decision not to train was made long before the alleged violation, and found that

the lack of any similar violations indicates that a violation could not be the

‘highly predictable consequence’ of failing to train.” Thompson, 578 F.3d at 299

(citations omitted). “This approach reflects common sense: if there have been

thousands of opportunities for municipal employees to violate citizens’

constitutional rights, and yet there have been no previous violations, then the

need for training is simply not ‘so obvious.’” Id. at 299–300; see also Conner v.

Travis County, 209 F.3d 794, 797 (5th Cir. 2000) (holding that if failure to train

was “so likely to result in the violation of constitutional rights,” the plaintiff

“would be able to identify other instances of harm arising from the failure to

train”). We find the actions and decisions of the officers involved in this

unfortunate shooting to be very troubling, indeed. However, the Valles did not

present sufficient evidence to show that the highly predictable consequence of

sending non-CIT officers in response to their call for help would result in the

shooting of their son.

V

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment in the City’s favor.

20

Case: 09-20624 Document: 00511189994 Page: 20 Date Filed: 07/30/2010