Charging too little
Why Can't We Be Friends?

Notice, Deliberate Indifference, and Supervisory Liability

Davis v. City of North Richland Hills, No. 04-10036 (5th Cir. Apr. 11, 2005) (via AL&P) is a significant section 1983 decision.  If the Court does not grant certiorari and reverse, Richland Hills will spell the end of supervisory liability in the Fifth Circuit.

While executing a no-knock warrant, Allen Hill shot Troy Davis within two seconds of entering Mr. Davis' home.  According the Davis' Estate, which brought a section 1983 action against Hill and his supervisors, Mr. Davis was unarmed and standing with this arms out, indicating that he would willingly surrender. 

The suit alleged that Allen Hill's supervisors were on notice that he was a violent and degenerate man who should never have been trusted to execute a no-knock warrant.  In allowing Hill to execute a warrant that would require discretion and care, the Hill's supervisors were deliberately indifferent to the rights of Mr. Hill.

The uncontradicted evidence regarding Allen Hill's conduct included:

(1) testimony [regarding SWAT team training exercises] from Ann Shelton, a former NRHPD SWAT team member, indicating that Shockley and Wallace knew or should have known that Hill was likely to fire his weapon inappropriately or illegally;
(2) Shelton’s testimony that prior to the shooting of Troy Davis, when Hill intentionally exposed himself during the snapping of a team photograph at SWAT training exercise . . . Shockley and Wallace failed to take adequate disciplinary action against Hill . . .;
(3) evidence that Hill frequently exposed himself to other members of the NRHPD and, as a result, had acquired the nickname “Penie”;
(4) evidence in Hill’s background investigation showing Hill had a propensity for violence; [and]
(5) testimony that Shockley and Wallace failed to take any action after receiving a complaint from Randy Cole, a citizen who had been pulled over by Hill for a traffic violation prior to the shooting death of Troy Davis, [in the course of which Cole claimed to Shockley and Wallace that] Hill was a "rogue" cop, behaved "like a psycho" and was "going to kill somebody"

Slip op. at 11-12.  Despite this evidence, the panel held that Hill's supervisors were not deliberately indifferent to the rights of others when they allowed Hill to execute sensitive missions.  Id. at *12 ("Even accepted as true and taken as a whole, the above evidence is legally insufficient ... to support a finding of deliberate indifference.")  The panel wrote that "[p]rior indications cannot simply be for any and all 'bad' or unwise acts, but rather must point to the specific violation in question."  Id. at *14.  Thus,

while Hill’s over-“exposed” photography stunt and his earned nickname collectively demonstrate lack of judgment, crudity, and, perhaps illegalities, they do not point to past use of excessive force. Similarly, the traffic stop, while perhaps improper in its own right, did not involve excessive force with a deadly weapon resulting in harm to a citizen in a context similar to the present case.

Id. at *15 (emphasis added).  The court cited favorably an earlier decision, where the Fifth Circuit held that "a habit of displaying a firearm during traffic stops does not constitute a relevant pattern with respect to using deadly force during a traffic stop."  Roberts v. City of Shreveport, 397 F.3d 287, 291 (5th Cir. 2005).  In sum, a supervisor is on notice that his subordinate has a tendancy to violate the rights of others only if the prior rights violations were identical to the ones allged in a supervisory suit. 

For example, a supervisor would be liable under a failure to train or supervise suit against his subordinate police officer who shoots a motorists only if the officer had previously shot a motorist.  If the officer had previously "merely" pointed his gun or threatened motorists, then the supervisor would not be on notice that the officer might someday actually shoot someone.  Does that sound like a proper notice analysis?

Imagine a company, sued under a negligent hiring claim, argued that they weren't on notice that an employee might go postal because the employee's prior conviction was for armed robbery with a knife.  Would any court hold that the company wasn't on notice that the employee might use a firearm when going postal?

If this notice discussion sounds familiar, that's because it is, and thus, Hope v. Pelzer is instructive.  In Pelzer, Alabama prison guards tied a prisoner's hands to a hitching post, where he was hung for nearly eight hours.  The guards mocked the prisoner as he moaned in pain.  They denied him a restroom break.  When the prisoner requested water, the guards laughed and poured a ladle of water on the guard dogs near the prisoner's feet.

The guards argued that they were entitled to qualified immunity, since no case held that it was cruel and unusual punishment to treat a prisoner in this way.  In other words, there was no notice that this conduct was unconstitutional.  A 6-3 Court rejected this argument, and noted that a state actor can be denied qualified immunity in even novel fact situations where the "obvious cruelty inherent in [a] practice" put the actors on "some notice that their alleged conduct violated Hope’s constitutional protection against cruel and unusual punishment." 

The Fifth Circuit should have employed a similar analysis and held that for purposes of deliberate indifference, a supervisor is on notice of a subordinates potential to engage in rights violations when the subordinate has shown a reckless disregard for civil rights in related contexts.  That is, evidence of prior rights violations and indiscrete or illegal behavior puts the supervisor on notice that his or her subordinate is likely to violate rights in other contexts.

This case has cert.-worthy written all over it.  Like Hope v. Pelzer, it involves an issue of broad application, namely, whether a supervisor is on notice that his subordinate is likely to violate the rights of others. I don't know for sure, but I suspect there is a circuit split on this issue of how similar prior conduct must be before a supervisor is on notice that his subordinate might unreasonably use deadly force.