Filed: Jun. 20, 2013
Latest Update: Feb. 12, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 12-2052 _ Jane Doe, a minor by and through her mother and next friend Susan Doe lllllllllllllllllllll Plaintiff - Appellant v. Andrew Gay, individually and in his capacity as an officer or agent of the Marianna Police Department lllllllllllllllllllll Defendant City of Marianna, Arkansas lllllllllllllllllllll Defendant - Appellee _ Appeal from United States District Court for the Eastern District of Arkansas - Helena _ Submitted: January
Summary: United States Court of Appeals For the Eighth Circuit _ No. 12-2052 _ Jane Doe, a minor by and through her mother and next friend Susan Doe lllllllllllllllllllll Plaintiff - Appellant v. Andrew Gay, individually and in his capacity as an officer or agent of the Marianna Police Department lllllllllllllllllllll Defendant City of Marianna, Arkansas lllllllllllllllllllll Defendant - Appellee _ Appeal from United States District Court for the Eastern District of Arkansas - Helena _ Submitted: January ..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2052
___________________________
Jane Doe, a minor by and through her mother and next friend Susan Doe
lllllllllllllllllllll Plaintiff - Appellant
v.
Andrew Gay, individually and in his capacity as an officer or agent of the
Marianna Police Department
lllllllllllllllllllll Defendant
City of Marianna, Arkansas
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Helena
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Submitted: January 15, 2013
Filed: June 20, 2013
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Before BYE, MELLOY, and SMITH, Circuit Judges.
____________
MELLOY, Circuit Judge.
Jane Doe appeals the district court's grant of summary judgment to the City of
Marianna ("Marianna") on her claims under 42 U.S.C. § 1983. Doe was sexually
assaulted by Andrew Gay, a Marianna police officer, on August 25, 2008. Gay was
charged with first degree sexual assault and subsequently terminated from Marianna's
police force. Because Doe has raised genuine issues of material fact, we vacate the
grant of summary judgment to Marianna.
I.
We must view the evidence in the light most favorable to Doe and draw all
reasonable inferences in Doe's favor. Rynders v. Williams, 650 F.3d 1188, 1194 (8th
Cir. 2011).
Vincent Bell became Marianna's Police Chief in mid-July 2008. At the time
he was appointed Police Chief, the Marianna Police Department ("the Department")
employed approximately twelve officers. As Police Chief, Bell was in charge of
setting the Department's policies and disciplining officers, although Bell conferred
with Marianna's mayor before Bell terminated any officers. When Bell began work
as Police Chief, he believed that there were problems with "professionalism" among
Marianna's officers and that the community "just didn't trust the police." In his
opinion, at the time he took over the Department, the culture of the Department was
permissive. Specifically, Bell testified, "if you were likeable, then, you know, you
got away with certain things," and the mayor showed favoritism to some officers;
officers believed they could commit misconduct and avoid discipline.
Other officers and dispatchers corroborated Bell's description of lax discipline
in the Department. One officer testified that, at the time of Bell's appointment, some
officers would ask city council members or the mayor to override any discipline
supervisory officers handed down. The same officer testified that even when an
officer's suspension remained on the books, no one forced the officer to actually serve
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the suspension—supervisors allowed the officer to continue working and earning pay.
A third officer also described a culture of favoritism in the Department prior to Bell's
appointment. Finally, a dispatcher testified that Marianna officers insulated each
other from complaints of misconduct. She reported an incident in which an officer
responded to a domestic disturbance call but returned to the station without an
arrestee. When she asked why the responding officer had not made an arrest, the
officer answered, "because [the suspect] is a police officer." She testified that the
practice of protecting other officers was shared by all the officers in the Department.
On July 25, 2008, Bell hired 21-year-old Andrew Gay as a Marianna police
officer. Prior to July 25, 2008, Gay was a Marianna police dispatcher. From the time
Bell hired Gay through the time Gay was terminated, Bell remained Police Chief.
New Marianna officers generally entered a training period of six to twelve weeks
following hire, and Gay began training soon after Bell hired him. Gay's training
consisted of ride-alongs with fully trained officers on patrol. He did not receive
weapons training or legal training. Outside of his ride-alongs, he did not receive
training on arrest or traffic stop procedures.1 Gay testified he gained little knowledge
of traffic laws or any other laws during the ride-alongs. Arkansas law required new
officers to undergo training through the state's police academy within twelve months
after hire; however, Gay did not complete or begin the state program. Bell admitted
there were no written procedures detailing what new trainees were to learn but
testified he had given his officers training instructions. However, one officer who
assisted in training Gay testified that he did not remember receiving any instructions
from Bell regarding what to teach Gay during training.
1
Gay accompanied Bell to one police seminar at some point between Gay's hire
and August 25, 2008. Gay testified he did not know the subject of the seminar. He
testified that the material was over his head and that he did not understand any of it.
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After approximately one week of training, the Department issued Gay a firearm
and a police uniform. According to the Department's policies, officers in training
were not allowed to drive a police car or patrol alone. However, Gay's supervisors
expressly permitted him to drive police cars alone and to patrol alone while he was
still in training. Though Gay could not recall precisely, he estimated he was first
allowed to drive a police car alone and make traffic stops alone one to two weeks into
training. Gay remembered making approximately four traffic stops on his own. Even
before his supervisors allowed him to actually make stops, he testified, they permitted
him to patrol alone, conduct police escorts alone, and assist in domestic disturbance
calls. Gay believed Bell had given permission for him to patrol alone, and Bell had
been present at least once when Gay left the police station in a patrol car by himself.
On August 25, 2008, Gay—still in training and thus not qualified to patrol
alone—was on patrol duty. During his day shift, he rode with another officer. His
shift ended at 7:00 PM. Instead of going off duty at 7:00 PM, he patrolled alone,
driving in a police vehicle. He continued to check in over the police radio per
Department policy, although he failed to report his mileage as Department policy also
required. He testified he had never heard of an officer being disciplined for failing
to report mileage. Each on-duty officer carried a radio, so all on-duty officers,
including the supervising shift commander, had the ability to hear other officers'
check-ins.
At some point after 7:00 PM, while still patrolling, he met Doe and invited her
into the police car. Contrary to Department policy, Gay allowed Doe to sit in the
front seat of the car. Gay then sexually assaulted Doe. Although Doe was fourteen
years old at the time Gay assaulted her, Gay later claimed he believed Doe was
sixteen or seventeen years old. Gay also testified that at the time he assaulted Doe,
he did not know it was illegal for a police officer to have sexual contact with a
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sixteen- or seventeen-year-old.2 Based on his observations of other officers' on-duty
behavior and the lack of discipline for misconduct, he testified, he did not believe he
would be disciplined for picking up a girl and driving around with her. Specifically,
Gay testified, "By them not being reprimanded for it, I didn't think that, you know,
wouldn't anything [sic] come of this."
Some time after Gay picked up Doe, Doe's mother arrived at the Marianna
police station and alleged Gay was driving around with her underage daughter. A
dispatcher summoned Gay to the police station. Over the course of that night and the
next day, a Marianna officer took statements from Gay, Doe, and Doe's mother. The
next day, August 26, the state police took over Doe's case and Bell placed Gay on
administrative leave. When the state police completed their investigation, Gay was
charged with sexual assault in the first degree and terminated from Marianna's police
force. Gay testified he submitted a letter of resignation to Bell because he thought it
would be better for him to resign than to be fired, but he was not sure whether his
resignation had been accepted.
2
Even if Doe had been seventeen on August 25, 2008, Gay's actions would still
have constituted a crime. Gay could have been charged with second-degree sexual
assault because Gay was a law enforcement official and Doe was a minor. See Ark.
Code Ann. § 5-14-125(a)(4)(A)(ii).
Although Gay disputed the details of the assault, and although the parties to
this appeal dispute whether Doe physically resisted, Marianna agrees with Doe that
the assault occurred. In any case, the victim's consent is not a defense to first-degree
sexual assault. See Ark. Code Ann. § 5-14-124(b). As we discuss later, our circuit
considers first-degree sexual assault a violent crime. See Parrish v. Luckie, 963 F.2d
201, 205–06 (8th Cir. 1992).
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Doe's mother filed a civil suit on Doe's behalf against Gay and Marianna under
42 U.S.C. § 1983;3 when Doe reached the age of eighteen, she refiled the suit on her
own behalf. Doe alleged Marianna failed in its duty to supervise, investigate, and
discipline its police officers. She alleged these failures constituted a policy, practice,
or custom "which created an atmosphere where unconstitutional behavior was
accepted, approved, and ratified in reckless disregard and deliberate indifference to
the welfare of the public" leading to Gay's assault on her.
Through the course of discovery, including numerous depositions, Doe
uncovered additional incidents of serious misconduct by Marianna police officers
beginning in 2005. We list the most relevant incidents here:4
• Two officers entered a private citizen's business. With only the
citizen and officers inside, one of the officers unholstered his gun
and threatened to murder the citizen. The other officer did not
attempt to stop the threat and did not report the threat. The citizen
filed a civil suit. One of the officers involved later resigned. The
3
In addition to § 1983 claims, Doe made claims under Arkansas state law. The
district court granted summary judgment to Marianna on all state claims. Although
Doe references the Arkansas Civil Rights Act on the first page of her brief to our
court, no Arkansas law appears in her Table of Authorities. Thus, we assume she
limits her appeal to her federal claims. Of the federal claims she raised in her
Complaint, she abandoned a negligent hiring claim in the district court and appears
to have also abandoned a failure to train claim on appeal; thus, only her claims based
on failure to supervise, investigate, and discipline remain. Gay is not a party to this
appeal.
4
The record contains evidence of additional nonviolent incidents of
misconduct we do not list. Further, the records provided by Marianna do not appear
well-organized or comprehensive. In particular, the records provided by Mariana do
not provide dates for several of the incidents. However, testimony by officers
suggests the undated incidents took place either during Bell's tenure as Police Chief
or within several years before Bell's appointment.
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other officer was not disciplined. There is no record of an
investigation by the Department.
• In the presence of a second officer, an officer threatened to kill a
citizen. There is no record of an investigation by the Department and
no indication either officer faced discipline. The officer who made
the threat resigned several months later.
• Two officers shot and killed an unarmed suspect. Although the
suspect's family filed a lawsuit, there is no record of an investigation
by the Department or discipline of the officers.
• A police dispatcher complained an officer grabbed her buttocks
while on duty. Supervisors instructed the officer to have no contact
with the dispatcher. After contravening the instruction and
attempting to interact with the dispatcher, the officer resigned. There
is no record of an investigation by the Department.
• A police dispatcher claimed a police corporal reported her for
unprofessional conduct and poor performance because she refused
to sleep with him. There is no record of an investigation by the
Department and no indication the officer faced discipline.
• During an argument at the police station, the Police Chief 5 drew
his gun and pointed it at another officer. There is no record of an
investigation by the Department and no indication the officer or the
Police Chief faced discipline.
• An officer wrapped handcuffs around his hand and punched a
prisoner who was confined in a cell at the police station. Bell
attempted to terminate the officer but, Bell testified, "[a]gain, there
was interference [from Marianna officials] and nothing was done."
The officer was not disciplined and there is no record of an
investigation by the Department.
5
The Police Chief involved was not Bell.
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• An officer was accused of domestic assault. Bell wanted to
terminate the officer; Marianna officials became involved. Bell
failed to follow up with the officials and the officer was not
disciplined. No record of the incident appears in the officer's
personnel file.6 Bell testified he wanted to terminate the officer
because an officer who commits domestic assault poses a danger to
the public. There is no record of an investigation by the Department.
• An officer was found socializing at a house while on duty. A
communication to the officer contained in the record shows the
officer was suspended for three days. However, the officer's
suspension was lifted after he appealed to the mayor. There is no
record of an investigation by the Department.
• While Gay was on a training ride-along with another officer, the
officer stopped at a friend's house to socialize. Alcohol was
available at the house, although Gay was not sure whether the officer
consumed any alcohol. Neither Gay nor the other officer was
disciplined. There is no record of an investigation by the
Department.
• An officer threatened to shoot another officer in the face and
talked openly about wanting to kill her. Bell testified he investigated
the threats, but there is no record of an investigation by the
Department and no indication the officer was disciplined. The
officer later resigned.
• Two officers responded to a call by a citizen whose car was stuck
in a ditch. After pulling the car out, the officers extorted money from
the citizen. There is no record of an investigation by the Department
6
The district court held that Bell's testimony regarding what the officer
said—Bell thought but was not sure the officer had admitted committing the
assault—was hearsay. However, at the very least, Bell's recommendation that the
officer be terminated is evidence of Bell's subjective belief that the assault occurred,
and Bell's testimony regarding the action or inaction of Marianna officials is
admissible and relevant to Doe's claim.
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and no indication either officer faced discipline. The officers later
resigned.
• When Gay was a dispatcher, he was accused of domestic assault.
There is no record of an investigation by the Department and Gay
was not disciplined.
• Bell received reports that officers were extorting money from
local businesses. Bell testified he ordered the officers to pay back
the money. There is no record of an investigation by the Department
and the officers were not disciplined.
Despite the serious and violent nature of most of these incidents, for the
majority there is no evidence of an investigation by the Department and no indication
the officers were disciplined. Although some of the officers involved in misconduct
later resigned, the record does not indicate whether these resignations stemmed from
the misconduct.7 Bell testified that if no disciplinary action was taken in response to
an incident, no documentation of the incident was placed in the officer's personnel
file. Bell also testified he sometimes wrote reports of incidents and saved them to his
7
The record contains several forms noting "change-in-status" of certain officers
and indicating certain officers had resigned. However, these forms do not indicate
the reasons for the resignations, and they are not attached to any other documents
indicating the resignations were the result of misconduct or of an investigation as
opposed to personal career decisions. The forms contain options from which the
writer can choose to indicate the reason for the change in status. Those options
include resignation, dismissal, or "separation." "Separation" is followed by four sub-
options. On two of the forms, the writers indicated the officers were "separated" for
violations of Arkansas state law or Department policy; however, the writers hand-
wrote "allowed to resign" on the forms. Additionally, the record contains a one-
sentence memo printed on Department letterhead. In full, the memo names two
officers and states they were "terminated due to civil lawsuits against them." The
statement is not dated, not signed, and not attached to any document describing the
nature of the lawsuits or the incident(s) leading to the lawsuits.
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computer's hard drive without placing them in officers' files or official records.9
Finally, other than one officer's recollection that the keys to police vehicles were
moved to a different location after Gay was terminated, the record does not indicate
the Department responded to any of the incidents above by making changes to
prevent future misconduct.10
Bell claimed he did not know Gay had been patrolling alone until after Gay
assaulted Doe, and other supervisors also claimed they did not know or they believed
Bell had given permission for Gay to patrol alone even though Gay was not qualified
to patrol alone. However, as a police dispatcher testified, because supervisors on duty
carry radios over which they can hear all reports and check-ins from officers on duty,
it is reasonable to infer that Gay's supervisors, including Bell, would have heard Gay's
radio check-ins when he was patrolling alone. Indeed, the dispatcher on duty the
evening of August 25, 2008 recalled she had been surprised to hear Gay's solo check-
ins because she knew he was still in training.
9
The current Police Chief, Martin Wilson, did not know of those additional
reports, and Wilson did not think anyone had looked for records on Bell's computer.
To the extent Bell's additional records exist and, further, to the extent those records
could demonstrate the Department investigated misconduct or disciplined officers
after the incidents described above, those documents are not contained in the record
before us, and Marianna has not alleged those documents will provide additional
relevant evidence.
10
The incidents we list took place between 2005 and 2010. Specifically, to the
best of our understanding of the record, two of the incidents for which we have
specific dates took place after Gay assaulted Doe. Although neither party raises the
issue, the district court noted Doe had relied in part on evidence of misconduct
occurring after Gay assaulted her. We need not determine whether Doe may use post-
event evidence to prove a municipal custom of deliberate indifference to
constitutional violations because we would vacate the grant of summary judgment to
Marianna even without relying on the two incidents of misconduct which occurred
after Gay's assault on Doe and without relying on Bell's handling of Gay's assault on
Doe.
-10-
Based on inquiries Bell made after Gay assaulted Doe, Bell believed the shift
commanders had improperly permitted Gay to patrol alone. Bell testified allowing
Gay to patrol alone created a serious danger to the public. However, Bell admitted
he did not discipline the shift commanders for allowing Gay to patrol alone. In fact,
no officers other than Gay were disciplined as a result of Doe's assault. Bell testified
he believed Marianna and the Department had not made any mistakes in hiring,
training, or disciplining Gay, but that Marianna had made mistakes in supervising
Gay.
Following discovery, Marianna moved for summary judgment. In its Order,
the district court assumed only prior incidents of sexual assault by Marianna officers
could constitute "past similar misconduct" relevant to Doe's claim. The district court
concluded only one of the past incidents of misconduct—the dispatcher's complaint
that an officer had grabbed her buttocks—could even arguably constitute sexual
assault. Thus, the district court reasoned, Doe could not establish a pattern of past
similar misconduct upon which a reasonable jury could find Marianna liable for Doe's
injuries. The district court therefore granted summary judgment to Marianna. Doe
now appeals. On appeal, Doe argues that whether the Department had a custom of
failing to supervise, discipline, and investigate its officers is a genuine question of
material fact and that the district court failed to view the evidence in the light most
favorable to her.
II.
We review the district court's grant of summary judgment de novo. Rynders
v. Williams, 650 F.3d 1188, 1194 (8th Cir. 2011). "Summary judgment is proper if,
after viewing the evidence and drawing all reasonable inferences in the light most
favorable to the nonmovant, no genuine issues of material fact exist and the movant
is entitled to judgment as a matter of law."
Id. (quoting Rau v. Roberts,
640 F.3d 324,
327 (8th Cir. 2011)). "The court should deny summary judgment if there is sufficient
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evidence for a jury to return a verdict for the non-moving party." Young-Losee v.
Graphic Packaging Int'l, Inc., 631 F.3d 909, 911 (8th Cir. 2011).
"A plaintiff may establish municipal liability under § 1983 by proving that his
or her constitutional rights were violated by an 'action pursuant to official municipal
policy' or misconduct so pervasive among non-policymaking employees of the
municipality 'as to constitute a custom or usage with the force of law.'" Ware v.
Jackson Cnty., Mo., 150 F.3d 873, 880 (8th Cir. 1998) (quoting Monell v. Dep't of
Soc. Serv.,
436 U.S. 658, 691 (1978) (internal quotation marks omitted)). "To
establish a city's liability based on its failure to prevent misconduct by employees, the
plaintiff must show that city officials had knowledge of prior incidents of police
misconduct and deliberately failed to take remedial action."
Parrish, 963 F.2d at 204.
A plaintiff must establish (1) "a continuing, widespread, persistent pattern of
unconstitutional misconduct" by the municipality's employees, (2) to which
policymaking officials were deliberately indifferent or which policymaking officials
tacitly authorized after notice to the officials of that misconduct, and (3) that custom
of deliberate indifference or tacit authorization was a "moving force behind the
constitutional violation." Thelma D. v. Bd. of Educ. of St. Louis,
934 F.2d 929,
932–33 (8th Cir. 1991) (quoting Jane Doe "A" v. Special Sch. Dist. of St. Louis,
901
F.2d 642, 646 (8th Cir. 1990)). A city will be liable "only where a city's inaction
reflects a deliberate indifference to the constitutional rights of the citizenry, such that
inadequate training or supervision actually represents the city's 'policy.'" Szabla v.
City of Brooklyn Park, Minn.,
486 F.3d 385, 392 (8th Cir. 2007).
Thus, defining the scope of relevant past misconduct is an important part of our
analysis and depends on the facts surrounding the alleged constitutional violation.
Marianna argues only prior sexual assaults by Marianna officers are relevant to Doe's
claim. But Marianna's argument defines the category of relevant conduct too
narrowly. Certainly, not all past incidents of misconduct are relevant. However, in
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this case, our precedent dictates that the scope of misconduct relevant to Doe's claim
must include violent misconduct, not merely the subcategory of sexual assault.
We have specifically held the crime of first-degree sexual assault "is, first and
foremost, a crime of violence." Parrish, 963 F.2d at 205–06 (analyzing Arkansas
law). In Parrish, the plaintiff sought to hold a city liable for a police officer's sexual
assault.
Id. at 203. The defendant city argued the district court erred in allowing the
plaintiff to introduce past incidents of violent misconduct by the city police officer.
Id. at 205. We held past incidents of violent misconduct were equally relevant to the
plaintiff's claim:
[T]he reports of violent behavior are relevant to show that Chief Bruce
had knowledge of Luckie's propensity toward violence. For instance, if
Luckie had locked Parrish in the back of his patrol car and beat her up
instead of sexual assaulting her, the City could not have raised this
claim. The City's argument attempts to pigeonhole Luckie's various
assaults as distinct and unrelated crimes. According to this argument,
if a man whips his child with an extension cord, then dons his police
uniform and beats up a prisoner, then locks a female prisoner in his
squad car and forces her to perform oral sex on him, the acts are
unrelated. It is clear, however, all of these acts constitute crimes of
violence.
Id. Similarly, in Andrews v. Fowler we affirmed summary judgment for a
municipality after the plaintiff was sexually assaulted by one of the municipality's
police officers.
98 F.3d 1069 (8th Cir. 1996). We held the municipality was not
liable because "there [was] no evidence that the city ever had received, or had been
deliberately indifferent to, complaints of violence or sexual assault."
Id. at 1076
(emphasis added). Under our caselaw, then, Gay's assault on Doe constituted a crime
of violence, and Doe may introduce not only past incidents of sexual misconduct but
also past incidents of violent misconduct by Marianna police officers to establish a
pattern of deliberate indifference.
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Unlike the Andrews plaintiff, Doe presented evidence showing the Department
received numerous past complaints of officer violence. Viewing the evidence in the
light most favorable to Doe and making all reasonable inferences, see Rynders, 650
F.3d at 1194, a reasonable jury could conclude that the Marianna Police Department
was deliberately indifferent to those past incidents based on the Department's failure
to investigate those incidents, the lack of discipline or termination of officers
following those incidents, and the intervention of Marianna officials to stop the
termination or punishment of officers accused of violent misconduct. Moreover, the
evidence that supervisors (including Bell) permitted Gay's solo patrols creates at least
a question of fact as to whether the Department practiced proper supervision. Bell
even admitted the Department had failed to properly supervise Gay. A jury could
reasonably infer, based on this evidence, that Marianna's custom of ignoring violent
misconduct and failing to supervise or discipline officers was a moving force behind
Gay's assault on Doe. Thus, we cannot say Marianna is entitled to judgment as a
matter of law.
III.
We vacate the grant of summary judgment to Marianna on Doe's claims under
42 U.S.C. § 1983 and remand for further proceedings consistent with this opinion.
______________________________
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