[PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________
                                                                   FILED
                                 No. 96-5395               U.S. COURT OF APPEALS
                          ________________________           ELEVENTH CIRCUIT
                                                                  08/27/98
                          D. C. Docket No. 92-CV-1673         THOMAS K. KAHN
                                                                   CLERK
MICHAEL C. GOLD,
                                                                  Plaintiff-Appellee,

                                      versus

CITY OF MIAMI,
                                                              Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                (August 27, 1998)


Before COX and HULL, Circuit Judges, and FAY, Senior Circuit Judge.


HULL, Circuit Judge:

      Appellant Michael C. Gold (“Gold”) brought a false arrest claim under state law

and civil rights actions based on excessive force and arrest without probable cause
under section 1983. 42 U.S.C. § 1983. Gold originally sued the City of Miami (the

“City”), three City police officers, and the City Police Chief. In an earlier appeal, this

Court held that the three City police officers and the City Police Chief were entitled

to qualified immunity. Gold v. City of Miami, 

(11th Cir. 1997) (“Gold

I”).

       While the earlier appeal was pending, Gold’s case against the City proceeded

to trial. The jury returned a verdict for Gold on both his federal and state claims. The

City challenges the jury’s verdict on only Gold’s section 1983 claims, contending that

the district court erred in not granting the City’s motions for judgment as a matter of

law. After review, we agree and set aside the verdict against the City on Gold’s

section 1983 claims.

                             I. FACTUAL BACKGROUND

A.     The Arrest

       Gold pulled into a congested bank parking lot so that his passenger could use

the bank's automated teller machine (“ATM”).1 While waiting for a parking space to

open up, Gold noticed a uniformed police officer nearby. Gold also noticed a woman

who did not appear to be handicapped walk to her car parked in a handicapped space,


       1
          The evidence at trial, construed in the light most favorable to Gold, is similar in all
material respects to the facts recited in Gold I. 

. Thus we repeat Gold I’s
recitation of the facts except where the evidence at trial was different.

                                                 2
get in, and start to drive away. Disturbed by this, Gold yelled to the officer, “Aren’t

you supposed to give her a ticket for something like that?”2 The officer did not

respond. Gold then found a parking space, parked his car, walked toward the ATM,

and loudly remarked to no one in particular, "Miami police don't do shit."

       Upon hearing Gold's remark, a plainclothes officer who had been standing in

the ATM line stated to the uniformed officer, “Hey, I think he’s got a problem.”3

Gold replied, “I don’t have a problem. I’m just saying that Miami police don’t do

shit.” A different plainclothes officer who had been standing next to the uniformed

officer then approached Gold and asked him for identification. After Gold produced

his Florida driver's license and Florida Bar membership card, the officer headed

toward the uniformed officer's patrol car to do a radio-check on the identification. The

officer soon was joined by the uniformed officer and the other plainclothes officer.

       Upon observing all of this, a couple walking away from the ATM machine

made a comment on the situation, and Gold responded, “They’ll do what they’re going




       2
        Gold’s trial statement is slightly different from his deposition statement at the summary
judgment stage, which was, “Aren’t you supposed to give them a ticket for parking in a
handicapped spot?” See Gold 

.
       3
       Gold’s trial statement is slightly different from his deposition statement at the summary
judgment stage, which was, “I think this guys [sic] got a problem.” See Gold 

.

                                                3
to do.”4 Gold then walked over to the two plainclothes policemen and one uniformed

policeman now gathered around the squad car. He asked the officer who had his ID,

“What’s going on?” The officer said, “Shut up,” but Gold insisted, “I’d like to know

what’s going on here.” The officers then placed Gold under arrest for disorderly

conduct.5 The City concedes that Gold’s arrest was without probable cause. See

Gold 

.6

B.     The Handcuffing

       After handcuffing Gold, the uniformed officer assisted Gold into the back of his

patrol car. Some moments later, Gold complained that the handcuffs were so tight that

he was in pain.7 The officer did not loosen the handcuffs until roughly fifteen to thirty



       4
         Gold I states that the couple was in line at the ATM and that Gold talked to the couple
for a few minutes. Gold 

. At trial, Gold testified that the couple was walking
away from the ATM when the woman made a comment and Gold responded as noted above.
Also, Gold I includes the substance of the couple’s comment. 

the comment was
excluded as hearsay.
       5
        Although Gold put his hands behind his back without resistence, the officers also
charged him for “resisting arrest without violence.” However, Gold did not argue to the district
court–and does not argue on appeal–that the officers violated his constitutional rights by falsely
charging him with resisting arrest. Therefore, this Court does not address this issue.
       6
          Florida’s disorderly conduct statute applies only when speech by its very utterance
inflicts injury or tends to incite an immediate breach of the peace. Gold 

.
Speakers do not violate the statute “merely by annoying those around them or by employing
profane language to express outrage.” 

       7
         Rather than double-locking the metal cuffs such that they would remain at a fixed
circumference, the officer had single-locked them, so that they could ratchet down and decrease
in circumference while on Gold’s wrists.

                                                 4
minutes after Gold complained. As a result, Gold claims that he had numbness on his

right wrist lasting a day or two. Gold admits that he did not notice that his skin was

broken until he left the jail that day. Gold did not see a doctor regarding any

problems resulting from the incident. After five or six hours in custody, Gold was

released. The State later dropped the criminal charges against him.

C.    The Police Officers’ Training

      At trial, the evidence showed that the City’s police officers underwent

substantial training at the police academy and afterwards on a wide variety of topics.

The City police department exceeded the State of Florida’s required number of

training hours, and it established departmental rules and regulations and standard

operating procedures. Each police officer received a law enforcement handbook and

significant instruction on the implementation of Florida criminal law. Each police

officer also received updates on recent changes in Florida statutory and case law that

the police department’s legal advisor thought would affect the officers’ operations.

Although no one recalls any specific training about the disorderly conduct statute or

the constitutional limitations placed by the Florida Supreme Court on that statute in

State v. Saunders, 

(Fla. 1976), the disorderly conduct statute was in the




                                          5
officers’ handbook for their review.8 The Police Chief and the legal advisor testified

that they were not aware of any problem with arrests under the Florida disorderly

conduct statute or with the responses to handcuff complaints that would call for any

specialized training on these specific issues.

      Gold presented no evidence of any prior false arrest for disorderly conduct or

a prior citizen complaint of such a false arrest. Gold presented evidence only (1) that

City officers often heard profanities and verbal insults while on patrol; (2) that they

brought the incidents to the Police Chief’s attention; and (3) that they filed 8,201

disorderly conduct arrests between 1986 and 1991 (not including sealed and expunged

cases). However, Gold presented no evidence connecting the profanities and insults

to any disorderly conduct arrests.

      Gold also presented no evidence of any prior incidents of improper responses

to handcuff complaints. Gold presented only evidence that other officers often

loosened handcuffs upon request and evidence of one injury due to handcuffing but



      8
          Florida’s disorderly conduct statute reads:

              Whoever commits such acts as are of a nature to corrupt the public morals,
      or outrage the sense of public decency, or affect the peace and quiet of persons
      who may witness them, or engages in brawling or fighting, or engages in such
      conduct as to constitute a breach of the peace or disorderly conduct, shall be
      guilty of a misdemeanor of the second degree . . . .

      Fla. Stat. Ann. § 877.03 (1994).

                                                  6
no showing that this one injury was caused by excessive force or improper

handcuffing.

D.     Jury’s Verdict

       Answering special interrogatories, the jury found that Gold’s arrest was caused

by a City policy that reflected deliberate indifference by the City to Gold’s civil rights

through a failure to train and/or supervise police officers concerning the disorderly

conduct statute and the proper response to handcuff complaints. The jury awarded

Gold $26,000 in damages on his section 1983 claim arising from the disorderly

conduct arrest, $500 in damages on his section 1983 claim for excessive force in

handcuffing, and $26,500 on his state law claim for false arrest. Since the federal and

state claims involved the same damages, the district court entered judgment against

the City for total damages of $26,500. The court also awarded Gold $59,420 in

attorneys’ fees under 42 U.S.C. § 1988, and taxed $8,303.78 in costs against the City.

       The court denied the City’s motion for judgment as a matter of law, which was

made at the close of Gold’s evidence, renewed at the close of all evidence, and made

again post-trial.9 The City does not contest the jury’s verdict on the state law claim




       9
        The district court also denied the City’s motion for summary judgment, but the City did
not appeal along with the other parties in Gold I. 

& n.2.

                                               7
for false arrest but challenges only the verdict on Gold’s section 1983 claims.



                           I. STANDARD OF REVIEW

      This Court reviews de novo a district court’s denial of a motion for judgment

as a matter of law. See Hibiscus Assocs. v. Board of Trustees of the Policemen and

Firemen Retirement Sys., 

, 920 (11th Cir. 1995). This Court employs the

same standard the district court applied, “review[ing] all of the evidence in the light

most favorable to, and with all reasonable inferences drawn in favor of, the

nonmoving party.”     Walker v. NationsBank of Florida, N.A., 

, 1555

(11th Cir. 1995). Although the existence of a genuine issue of material fact precludes

judgment as a matter of law, “a jury question does not exist because of the presence

of a mere scintilla of evidence.” 

for judgment as a matter of law will

be denied only if “reasonable and fair-minded persons in the exercise of impartial

judgment might reach contrary conclusions.” 

A.    Municipal Policy Requirement

      The Supreme Court has placed strict limitations on municipal liability under

section 1983. There is no respondeat superior liability making a municipality liable

for the wrongful actions of its police officers in making a false arrest. See Monell v.


                                          8
Department of Social Servs., 

, 691 (1978). Instead, a municipality may

be held liable for the actions of a police officer only when municipal “official policy”

causes a constitutional violation. See 

Gold must “identify a municipal

‘policy’ or ‘custom’ that caused [his] injury,” Board of County Comm’rs. v. Brown,

, 1388 (1997) (citing 

); “It is only when the

‘execution of the government's policy or custom . . . inflicts the injury’ that the

municipality may be held liable under § 1983.” City of Canton v. Harris, 

, 385 (1989).

      Thus, the City is not automatically liable under section 1983 even if it

inadequately trained or supervised its police officers and those officers violated

Gold’s constitutional rights. Instead, the Supreme Court has explained that there are

only “limited circumstances” in which an allegation of a failure to train or supervise

can be the basis for liability under § 1983. See City of 

. The

Supreme Court has instructed that these “limited circumstances” occur only where the

municipality inadequately trains or supervises its employees, this failure to train or

supervise is a city policy, and that city policy causes the employees to violate a

citizen’s constitutional rights. 

see also Kerr v. City of West Palm Beach,

, 1555 (11th Cir. 1989); 

, 1390.




                                           9
       Since a municipality rarely will have an express written or oral policy of

inadequately training or supervising its employees, the Supreme Court has further

explained that a plaintiff may prove a city policy by showing that the municipality’s

failure to train evidenced a “deliberate indifference” to the rights of its inhabitants, as

follows:

       We hold today that the inadequacy of police training may serve as the
       basis for § 1983 liability only where the failure to train amounts to
       deliberate indifference to the rights of persons with whom the police
       come into contact. This rule is most consistent with our admonition . .
       . that a municipality can be liable under § 1983 only where its policies
       are the “moving force [behind] the constitutional violation.” Only where
       a municipality's failure to train its employees in a relevant respect
       evidences 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. . . . “[M]unicipal liability under § 1983
       attaches where–and only where–a deliberate choice to follow a course of
       action is made from among various alternatives” by city policymakers.
       Only where a failure to train reflects a “deliberate” or “conscious” choice
       by a municipality–a “policy” as defined by our prior cases–can a city be
       liable for such a failure under § 1983.

City of 

(internal citations omitted).

       To establish a “deliberate or conscious choice” or such “deliberate

indifference,” a plaintiff must present some evidence that the municipality knew of a

need to train and/or supervise in a particular area and the municipality made a

deliberate choice not to take any action. See Board of County Comm’rs. v. Brown,

, 1390-91 (1997); Young v. City of Augusta, Georgia, 

,


                                            10
1171-72 (11th Cir. 1995); Church v. City of Huntsville, 

, 1342-46 (11th

Cir. 1994); Wright v. Shepherd, 

, 674 (11th Cir. 1990); Kerr v. City of

West Palm Beach, 

, 1556-57 (11th Cir. 1989).10 This Court repeatedly

has held that without notice of a need to train or supervise in a particular area, a

municipality is not liable as a matter of law for any failure to train and supervise.11

For example, in Wright v. Sheppard, 

(11th Cir. 1990), this Court held

that a sheriff’s department was not liable for a deputy’s acts when “no evidence of a

history of widespread prior abuse . . . put the sheriff on notice of the need for

improved training or supervision.” 

Indeed, in Church v. City of


       10
         This high standard of proof is intentionally onerous for plaintiffs; imposing liability on
a municipality without proof that a specific policy caused a particular violation would equate to
subjecting the municipality to respondeat superior liability–a result never intended by section
1983. As the Supreme Court has explained,

       [t]o adopt lesser standards of fault and causation would open municipalities to
       unprecedented liability under § 1983. In virtually every instance where a person
       has had his or her constitutional rights violated by a city employee, a § 1983
       plaintiff will be able to point to something the city “could have done” to prevent
       the unfortunate incident. Thus, permitting cases against cities for their “failure to
       train” employees to go forward under § 1983 on a lesser standard of fault would
       result in de facto respondeat superior liability on municipalities . . . .

see also 

(“Where a court fails to adhere to rigorous
requirements of culpability and causation, municipal liability collapses into respondeat superior
liability.”).
       11
          In granting qualified immunity to Police Chief Ross, the Gold I court found no
evidence that the Police Chief was deliberately indifferent in failing to train the three arresting
officers because the court found no indication in the summary judgment record “that a
reasonable person in Ross's position would have known that such a failure infringed on
constitutional 

.

                                                 11
Huntsville, 

(11th Cir. 1994), this Court reversed a district court’s

preliminary injunction against the City of Huntsville, holding that the plaintiffs were

not likely to succeed on the merits of their failure-to-train claim without proof that the

City was aware of a prior incident in which constitutional rights were similarly

violated. 

See also Popham v. City of Talladega, 

, 1564-

65 (11th Cir. 1990) (finding no liability for failure to train when no pattern of

incidents put the City on notice of a need to train). More importantly, in Brooks v.

Scheib, 

(11th Cir. 1987), even though there had been ten citizen

complaints about police officer Scheib, this Court held that the City did not have any

notice of past police misconduct because the plaintiff “never demonstrated that past

complaints of police misconduct had any merit.” 

This Court aptly noted,

“Indeed, the number of complaints bears no relation to their validity.” 

Presented No Evidence of Prior Incidents

      Gold admits that he presented no evidence of prior constitutional violations or

false arrests involving Florida’s disorderly conduct statute. Instead, Gold submitted

evidence only that there were 8,201 disorderly conduct arrests between 1986 and 1991

and that 601 such arrests were dismissed and 700 such arrests were nol prossed.

There was no evidence regarding the reasons for these dispositions or that any such

dispositions were due to false arrests for only protected speech. Gold, an attorney,


                                           12
admitted that there can be many reasons why a criminal case is dismissed, such as

failure of witnesses or police officers to appear. Both the City’s Chief of Police and

its Internal Affairs investigator also testified that they could not recall any pattern of

complaints for false arrest under the disorderly conduct statute.

      Similarly, Gold presented no evidence of a single prior incident in which a City

police officer caused an injury by excessive force in handcuffing. Gold presented

only evidence that other officers often loosened handcuffs upon request and evidence

of one injury due to handcuffing, without any showing of excessive force involved.

C.    No Obvious Need

      Gold stresses that evidence of prior incidents is not required to establish a city

policy in this case because the need to train and supervise in the particular areas in

issue was so obvious and the likelihood of constitutional violations was highly

predictable so that liability attaches for this single incident. In City of Canton v.

Harris, 

(1989), the Supreme Court in dictum left open the possibility that

a need to train could be “so obvious,” resulting in a City’s being liable without a

pattern of prior constitutional violations. 

As an example, the Supreme

Court in City of Canton referenced the obvious need to train police officers on the

constitutional limitations on the use of deadly force, when the city provides the




                                           13
officers with firearms and knows the officers will be required to arrest fleeing felons.

n.10.

      Subsequently, in Board of County Commissioners v. Brown, 

(1997), the Supreme Court characterized the City of Canton’s leaving open such a

possibility as simply hypothesizing in a narrow range of circumstances that a plaintiff

might succeed without showing a pattern of constitutional violations, as follows:

      In leaving open in Canton the possibility that a plaintiff might succeed
      in carrying a failure-to-train claim without showing a pattern of
      constitutional violations, we simply hypothesized that, in a narrow range
      of circumstances, a violation of federal rights may be a highly
      predictable consequence of a failure to equip law enforcement officers
      with specific tools to handle recurring situations.

(emphasis added) (holding isolated incident of sheriff’s

inadequate screening of deputy did not create such an obvious risk that it alone

established the municipality’s deliberate indifference to the risk that the deputy would

use excessive force).    In short, to date, the Supreme Court has given only a

hypothetical example of a need to train being “so obvious” without prior constitutional

violations: the use of deadly force where firearms are provided to police officers. See

City of 

n.10.

      In any event, Gold’s contentions that the police officers were inadequately

trained and/or supervised regarding the disorderly conduct statute and the proper

response to handcuff complaints “fall[] far short of the kind of ‘obvious’ need for

                                          14
training that would support a finding of deliberate indifference to constitutional rights

on the part of the city.” City of 

(finding no obvious need

for police officers to be trained in diagnosing mental illness) (O’Connor, J.,

concurring in part and dissenting in part); Young v. City of Augusta, Georgia, 

, 1171-72 (11th Cir. 1995) (finding no obvious need to train jail employees “to

recognize the need to remove a mentally ill inmate to a hospital or to dispense

medication as prescribed”).12 “Unlike the risk from a particular glaring omission in

a training regimen,” the risk from these possible imperfections, if any, in the City

police officers’ training and supervision here “is not obvious in the abstract.” 

.13


       12
         In Young, 

, 1172 (11th Cir. 1995), this Court explained the notice
requirement as follows:

                Before it may be said that a municipality has made a deliberate choice
       among alternative courses of action, its policymakers must have had "actual or
       constructive notice that the particular omission is substantially certain to result in
       the violation of the constitutional rights of their citizens." This may be
       demonstrated in one of two ways.
                First, the need for a particular type of training may be obvious where
       jailers face clear constitutional duties in recurrent situations.
                Alternatively, the need for more or better training may be obvious where a
       pattern of constitutional violations exists such that the municipality knows or
       should know that corrective measures are needed.

(internal citations and parentheticals omitted).
       13
          Gold presented expert testimony that the need for training and/or supervision in these
two areas should have been obvious to the City and that the City was deliberately indifferent in
not responding. However, an expert’s conclusory testimony does not control this Court’s legal
analysis of whether any need to train and/or supervise was obvious enough to trigger municipal

                                                 15
D.     Vineyard Is Not Applicable

       Gold also relies heavily on Vineyard v. County of Murray, Georgia, 

, 1212 (11th Cir. 1993), but that decision is inapplicable. Vineyard was

threatened and beaten repeatedly in the head and chest by sheriff’s deputies while

handcuffed to a hospital bed. 

Vineyard’s jaw was broken, and he

underwent two surgical operations and treatment for the pain associated with this

injury. 

Although “it was not unusual to receive complaints” about

deputies, “the dispatcher or whoever answer[ed] the telephone ha[d] discretion about

the initial handling of the complaint.” 

two deputies who committed the

beating were assigned to investigate Vineyard’s complaints. The sheriff’s department

did not log or document citizens’ complaints in any fashion, much less retain records

of such complaints. The two deputies never completed an arrest report for Vineyard’s

arrest during which the beating occurred. The sheriff’s department had no policies or

procedures manual. 

was no evidence of prior beatings by the deputies in Vineyard,

this Court found that there was sufficient evidence from which the jury could find that

Murray County’s not having a policy and procedures manual, not requiring the

deputies to file an arrest report when beatings or confrontations occur, not logging in


liability without any evidence of prior incidents putting the municipality on notice of that need.

                                                16
or documenting in any way citizens’ complaints, and not investigating any complaints

together were “the moving force” behind the deputies’ “use of gratuitous force.” 

In contrast, the evidence here shows that the City has policies and

procedures, has extensive training for its police officers, acquaints the officers with

departmental policies and procedures, documents all citizens’ false arrest complaints,

and retains those records for a considerable period of time.

      Gold stresses that the City’s failure to investigate false arrest complaints raises

a jury issue regarding whether the City was deliberately indifferent to an obvious need

to supervise its police officers. However, false arrest complaints are documented but

not investigated because the City’s position is that the proper authority to investigate

and determine whether there was probable cause for an arrest is the courts and not the

police department. Moreover, the City’s Internal Affairs does investigate excessive

force claims and certain other claims of police misconduct. In any event, because

Gold presented no evidence of a prior false arrest for disorderly conduct or even a

valid complaint of such false arrest, there is no showing that the City’s procedures for

handling false arrest complaints affected the officers’ conduct here. See Brooks v.

Scheib, 

, 1195 (11th Cir. 1987) (finding no evidence from which a jury

could infer a municipality’s deficient procedures for handling citizen complaints were

the moving force of the constitutional violation when the plaintiff failed to show that


                                          17
the prior ten “complaints against [officer] Scheib had some merit and that more

effective citizens’ complaint procedures would have prevented his injuries”).

E.    The City’s Record-Keeping

      Lastly, Gold contends that he could not prove a pattern of prior false arrests for

disorderly conduct because the City kept no records or inadequate records of citizens’

false arrest complaints. At trial, it was undisputed that the City does document all

citizens’ false arrest complaints and then retains that record as far back as 1985 or

1986. Indeed, when Gold made his complaint, the City documented it, and the

contents of that record were introduced at trial.

      Although classified as “non-complaints,” these reports nevertheless are retained

by the City and were available as far back as 1985 or 1986. Thus, the number and

nature of the allegations of false arrest for disorderly conduct received by the City

since at least 1986 could have been determined by pulling these forms and reading the

narratives. Therefore, Gold’s claim that the City’s record keeping system prevented

him from presenting the necessary evidence is not supported by the record in this case.

The record also does not show any attempt by Gold to obtain these “non-complaint”

files or review them. Gold has failed to establish that the City’s method of record-




                                          18
keeping prevented any attempts to prove a prior incident of false arrest for protected

speech.14

                                    IV. CONCLUSION

       In sum, Gold has not presented any evidence from which the jury could find

that the existence of a municipal policy or custom caused or was the moving force

behind the violation of Gold’s constitutional rights. No facts to sustain the jury’s

verdict were offered.15

       The district court erred in denying the City’s motion for judgment as a matter

of law on Gold’s section 1983 claims. Thus, the jury’s verdict against the City on

Gold’s section 1983 claims and the district court’s accompanying award of attorneys’

fees and costs under 42 U.S.C. § 1988 are set aside. On remand, the district court is

directed to enter judgment in favor of the City on Gold’s section 1983 claims. The

district court’s judgment in the amount of $26,500 in favor of Gold and against the

City and any costs awarded Gold by reason of that judgment are not affected by this

appeal because they remain supported by the jury’s verdict on Gold’s state law claim

       14
         Our discussion of this issue does not imply that the City was obligated to keep any such
records for the purpose of enabling Gold to prove a claim. However, since the City did
document complaints of false arrests, we discuss Gold’s contentions about the City’s record-
keeping system for those documents.
       15
         Because we find no evidence of a City policy of inadequate training and supervision,
we need not address the City’s contentions (1) that City policy was not the moving force behind
any constitutional violations, and (2) that the handcuffing injury was de minimus and not
cognizable.

                                               19
for false arrest. The district court’s denial of the City’s motion for judgment as a

matter of law on Gold’s section 1983 claims is REVERSED, the jury’s verdict on

Gold’s section 1983 claims is SET ASIDE, and the district court’s award of attorneys’

fees and costs under section 1988 is VACATED.




                                         20