Jose Valle, et al v. City of Houston

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Jose Valle, et al v. City of Houston

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
July 30, 2010 N o . 09-20624 Lyle W. Cayce Clerk

J O S E VALLE, Individually and as Representative of the Estate of Omar E s p a r z a ; ASUNCION VALLE P la in t iffs - Appellants v. C I T Y OF HOUSTON, D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e JOLLY and GARZA, Circuit Judges and STARRETT * , District Judge. E M I L I O M. GARZA, Circuit Judge: O m a r Esparza was shot and killed by Houston police officers during an i n c i d e n t at his family's home. His parents, Plaintiffs-Appellants Jose and

A s u n c io n Valle (the "Valles"), individually and as representatives of their son's e s t a t e , 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 O n the day of the incident, Esparza--who apparently had been suffering fr o m depression and anxiety in the preceding months--became upset and locked

*

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

Dockets.Justia.com

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No. 09-20624 h im s e lf inside the family home and refused to allow his parents to enter. After a b o u t an hour, the Valles called 911 for assistance and requested a S p a n is h -s p e a k in g operator because neither of them spoke English. The Valles a p p a r e n t ly hoped that the 911 call would bring medical assistance for their son. T h e 911 dispatcher sent police officers to the Valles' home. The Valles a lle g e d ly showed the first officer on the scene, Officer Duarte, papers from their p r e v i o u s attempts to get Esparza admitted to a hospital for psychiatric t r e a t m e n t 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 (b o t h Duarte and Esparza spoke English). Officers Walsh, Seay, and Chaisson t h e n arrived and spoke with Esparza, who stated he would not come out of the h o u s e and would not let anyone in. The officers contacted their supervisor, S e r g e a n t Bryant, who assumed control of the situation upon his arrival. After u n s u c c e s s fu lly attempting to communicate with Esparza, Sergeant Bryant c o n t a c t e d police headquarters to report the situation and seek orders. Captain W illia m s of the Special Weapons and Tactical/Hostage Negotiation Team (" S W A T " ) directed Sergeant Bryant to get a Crisis Intervention Team ("CIT") s p e c ia l officer to negotiate with Esparza. CIT Officer Broussard was called to t h e scene. She negotiated with Esparza for about thirty to forty minutes, but w a s 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 r e c e iv e d permission from Captain Williams to forcefully enter the house. Esparza was not a suspect in any criminal activity, nor had he threatened the o ffic e r s or himself. Nonetheless, Captain Williams authorized the entry and s e iz u r e , although he was neither present at the scene nor had any direct c o m m u n ic a t io n with CIT Officer Broussard. S e r g e a n t Bryant and three other officers armed themselves with a Taser, a shotgun loaded with soft-impact bean bags, and their sidearms. While CIT 2

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No. 09-20624 O ffic e r Broussard was still conversing with Esparza through the front door, S e r g e a n t Bryant and Officers Chaisson, Duarte, and Walsh forcibly entered a s id e door of the house. The City alleged that Esparza was in possession of a h a m m e r and charged at the officers when they entered. Less than thirty seconds a ft e r entry, the officers began discharging their weapons. Sergeant Bryant fired t h r e e blasts of non-lethal soft-impact beanbags from the shotgun he was carrying b u t was, apparently, unable to stop Esparza. Walsh fired his Taser and missed E sp arza. Chaisson then fired his 40-caliber automatic pistol six times at After the assault subsided, Mrs. Valle

E s p a r z a -- t h r e e bullets struck him.

e n t e r e d the home and saw her son lying on the floor; she saw no hammer.1 E s p a r z a died from his wounds. S W A T Captain Williams was disciplined by the police department for his r o l e in approving entry into the Valles' home. He successfully appealed his r e p r im a n d on the basis that he had acted within the policies and procedures of t h e police department. T h e Valles sued the City2 pursuant to 42 U.S.C. § 1983, alleging violations o f the Fourth and Fourteenth Amendments flowing from the officers' w a r r a n tle s s forcible entry into their home and lethal seizure of Esparza. The V a lle s alleged that the officers exercised excessive force in entering their home a n d seizing Esparza pursuant to a City policymaker's orders, and that the City w a s liable under § 1983 for failure to properly train the officers who entered t h e ir home. The district court granted the City's first motion for summary ju d g m e n t , 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 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.
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The Valles did not sue any of the officers involved in the shooting of their son.

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No. 09-20624 V a lle s ' injuries. The district court also granted the City's second motion for s u m m a r y judgment finding that, although the Valles raised a material fact issue a s to the City's failure to train the officers, the Valles failed to show that a city p olicy m ak e r acted with deliberate indifference and that the allegedly inadequate t r a in in g was a moving force in bringing about the constitutional violation. II W e dispose first of the City's claim that the Valles lack standing. The City a r g u e s that Esparza may have had a son, which would require administration o f Esparza's estate under Texas law, thereby raising a question whether A p p e lla n t Jose Valle is the proper party to administer the estate. W e find the City's arguments without merit. Texas law provides that w h e n a person dies intestate, as Esparza did, the decedent's estate immediately v e s t s in his heirs at law, subject to the payment of any debts of the estate. TEX. P ROB. CODE ANN. § 37. Title to any estate passes equally to the decedent's p a r e n t s 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 e s t a t e ." Id. at § 178(b). As required, the Valles submitted evidence

d e m o n s t r a t in g that an estate administration was neither pending nor necessary. See Shepherd v. Ledford, 962 S.W.2d 28, 31­32 (Tex. 1998) (holding that heirs a t law may maintain a wrongful death or survival suit without administration o f the estate if they allege and prove that there is no administration pending and n o n e necessary). Even if Esparza did have a son, a point that the parties c o n t e s t , the Valles still have standing under Texas law to recover wrongful death d a m a g e s on behalf of themselves and all others entitled to recover under the w r o n g fu l death statute. TEX. CIV. PRAC. & REM. CODE ANN. § 71.004(b). The C it y 's conclusory allegation that Esparza's estate requires administration is in s u ffic ie n t . Accordingly, the district court's determination that the Valles have s t a n d in g to sue was correct. 4

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No. 09-20624 III T h is court reviews a grant of summary judgment de novo. Mack v. City of A b ile n e , 461 F.3d 547, 555 (5th Cir. 2006) (citing Morris v. Dillard Dep't Stores, 2 7 7 F.3d 743, 747 (5th Cir. 2001)). Summary judgment is appropriate only if no g e n u in e issue of material fact exists. FED. R. CIV. P. 56. All facts and inferences a r e construed in the light most favorable to the non-moving party. Murray v. E a r le , 405 F.3d 278, 284 (5th Cir. 2005). IV A T h e Valles argue that the City is liable for entering their home in violation o f the Fourth Amendment and for using excessive force to seize their son, which r e s u lt e d in his death. The Valles assert that Captain Williams was acting as the C it y 's final policymaker with respect to arrests and seizures when he authorized e n tr y into the Valles' home, and thus his actions constitute City policy for the s e iz u r e at issue here. I t is well established that a city is not liable under § 1983 on the theory of r e s p o n d e a t superior. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). A m u n ic ip a lit y is liable only for acts directly attributable to it "through some o ffic ia l action or imprimatur." Piotrowski v. City of Houston, 237 F.3d 567, 578 (5 t h Cir. 2001). To establish municipal liability under § 1983, a plaintiff must s h o w the deprivation of a federally protected right caused by action taken " p u r s u a n t to an official municipal policy." See Monell, 436 U.S. at 691. A p la in t iff must identify: "(1) an official policy (or custom), of which (2) a p o lic y m a k e r can be charged with actual or constructive knowledge, and (3) a c o n s t it u t io n a l 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 a t 578).

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No. 09-20624 T h e existence of a policy can be shown through evidence of an actual p o lic y , regulation, or decision that is officially adopted and promulgated by la w m a k e r s or others with policymaking authority. Burge v. St. Tammany

P a r is h , 336 F.3d 363, 369 (5th Cir. 2003). "[A] single decision by a policy maker m a y , under certain circumstances, constitute a policy for which a [municipality] m a y 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 m u n ic ip a l liability only if the municipal actor is a final policymaker. Bolton v. C ity of Dallas, 541 F.3d 545, 548 (5th Cir. 2008) (citing Woodard v. Andrus, 419 F .3 d 348, 352 (5th Cir. 2005)). U n d e r the second prong, "[a]ctual or constructive knowledge of [a] custom m u s t be attributable to the governing body of the municipality or to an official t o whom that body has delegated policy-making authority." Webster v. City of H o u s to n , 735 F.2d 838, 842 (5th Cir. 1984) (en banc); see also Piotrowski, 237 F .3 d at 579. This circuit has long distinguished between final decisionmaking a u t h o r it y 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. 4 6 9 , 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 g iv e n 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 p o s s e s s e s final authority to establish municipal policy with respect to the action o r d e r e d ." Pembaur, 475 U.S. at 481. Whether an official possesses final

p o lic y m a k in g authority for purposes of municipal liability is a question of state a n d local law. Id. at 482. T h e third prong requires a plaintiff to prove "moving force" causation. To s u c c e e d , "a plaintiff must show that the municipal action was taken with the r e q u is it e degree of culpability and must demonstrate a direct causal link 6

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No. 09-20624 b e tw e e n the municipal action and the deprivation of federal rights." Bd. of the C o u n ty Comm'rs v. Brown, 520 U.S. 397, 404 (1997). That is, "the plaintiff must d e m o n s t r a t e that a municipal decision reflects deliberate indifference to the risk t h a t a violation of a particular constitutional or statutory right will follow the d e c is io n ." Id. at 411. Deliberate indifference is a high standard--"a showing of s im p le or even heightened negligence will not suffice." Piotrowski, 237 F.3d at 5 7 9 (quoting Brown, 520 U.S. at 407). T h e Valles do not argue that the City has a formal written policy or custom t h a t caused the unconstitutional seizure of their son.3 Instead, they contend t h a t the City is liable for Captain Williams's single unconstitutional decision to o r d e r entry into their home to seize their son. To succeed on this claim, the V a lle s must show that Captain Williams had final policymaking authority and t h a t his decision was the moving force behind the constitutional injury. The V a lle s appear to argue that some lesser "decisionmaking" authority to make the o n e -t im e decision at issue is sufficient. See Pembaur, 475 U.S. at 481 ("If the d e c is io n to adopt that particular course of action is properly made by that g o v e r n m e n t 's authorized decisionmakers, it surely represents an act of official g o v e r n m e n t `policy' as that term is commonly understood."). This argument is b a s e d on a misunderstanding of Pembaur and this circuit's precedent. See B o lto n , 541 F.3d at 548­50 (discussing the distinction between final d e c is io n m a k in g authority and final policymaking authority and noting that a m u n ic ip a lit y may only be liable for a decision of a final policymaker). We have lo n g 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 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.

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No. 09-20624 n e c e s s a r ily entail final policymaking authority over that function." Bolton, 541 F .3 d at 549 (citing Praprotnik, 485 U.S. at 130; Pembaur, 475 U.S. at 483­84); J e tt, 7 F.3d at 1247. U n d e r Chapter 34 of the City Code of Ordinances, the Chief of Police may d e le g a t e authority to another and such person "so designated shall be vested w it h the full authority of the office of chief of police." HOUSTON, TEX. CODE OF O RDINANCES §§ 34-24. The Valles contend that the Chief of Police exercised his p o lic y m a k in g authority in promulgating GO 600-05, which delegates the Chief's fu ll policymaking authority to the Assistant Chief of Police for Tactical O p e r a t io n s and to the Captain of Tactical Operations--here, Captain Williams. They further argue that Special Operating Procedure ("SOP") 200/1.01 s p e c ific a lly designated the Captain of Tactical Operations as the person r e s p o n s ib le for determining how to implement GO 600-05. In particular, SOP 2 0 0 /1 .0 1 states that the Captain of Tactical Operations shall be contacted r e g a r d in g a special threat situation and "will determine whether a full, partial o r 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 s it u a t io n , the person who makes that decision is "making policy for the specific a r r e s t " because the designated decisionmaker is exercising authority delegated b y the chief of police who is the final policymaker for arrest decisions. A lt h o u g h GO 600-05 and SOP 200/1.01 confer decisionmaking or o p e r a t io n a l command authority on Captain Williams, it does not follow that C a p t a in Williams, or another person to whom such authority is delegated, acts in a policymaking capacity. Captain Williams was afforded a certain measure o f discretion in carrying out the City's policy. But "[w]hen an official's

d is c r e t io n a r y decisions are constrained by policies not of that official's making, t h o s e policies, rather than the subordinate's departures from them, are the act o f the municipality." Praprotnik, 485 U.S. at 127. The Valles do not contend 8

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No. 09-20624 t h a t either GO 600-05 or SOP 200/1.01 were policies made by Captain Williams p u r s u a n t to delegated policymaking authority. Rather, they are policies made b y other officials that Williams was required to follow. Assuming that Captain W illia m s was delegated some level of decisionmaking authority, GO 600-05 and S O P 200/1.01 constrained his authority and set forth the range of choices which h e could make in a given situation. The fact that Captain Williams made the fin a l decision in this situation does not mean that he was setting City policy r e g a r d in g the making of arrests.4 Nor does the fact that Captain Williams's d e c is io n violated Esparza's right to be free of an unconstitutional seizure elevate h is decision to one attributable to the municipality.5 A lt h o u g h Captain Williams's decision to order entry into the home was a r g u a b ly the "moving force" behind the constitutional violations that resulted in E s p a r z a 's death, because his decision was not a decision by a final policymaker o f the City, the City cannot be liable. Thus, the district court properly granted s u m m a r y judgment on the Valles' municipal liability claim against the City. B T h e Valles also argue that the City is liable because it failed to adequately t r a in its patrol supervisors in the use of CIT tactics. As a result, the Valles
4

The Valles argue that because the "City's rules, orders, and policies point to [Captain] 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 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).
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No. 09-20624 c o n t e n d that the CIT officer on the scene at their home was overruled by a nonC I T -tr a in e d supervisor, which resulted in immediate and lethal escalation of the s it u a t io n , an outcome that CIT training was intended to prevent. T h e standard applicable to a failure-to-train claim is the same as the s t a n d a r d for municipal liability. Roberts v. City of Shreveport, 397 F.3d 287, 293 (5 t h Cir. 2005). "The failure to provide proper training may fairly be said to r e p r e s e n t a policy for which the city is responsible, and for which the city may b e held liable if it actually causes injury." Bryan County, 219 F.3d at 457 ( q u o t in g City of Canton v. Harris, 489 U.S. 378, 390 (1989)). "In resolving the is s u e 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, 4 8 9 U.S. at 390. A plaintiff must show that (1) the municipality's training policy o r procedure was inadequate; (2) the inadequate training policy was a "moving fo r c e " in causing violation of the plaintiff's rights; and (3) the municipality was d e lib e r a t e ly 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 T o show that the City's training was inadequate, the Valles presented e v id e n c e that the City chose not to implement a 2004 proposal for additional m a n d a t o r y CIT training, prepared at the direction of the Executive Assistant C h ie f of Police. According to the proposal, CIT training is "a proven curriculum fo r helping officers safely de-escalate situations involving individuals in serious m e n ta l health crises." The 2004 proposal made two recommendations relevant h e r e : (1) that all patrol officers be required to complete twenty-four hours of CIT t r a in in g , and (2) that all patrol sergeants be required to complete CIT training. T h e first proposal was intended to address the underutilization of CIT o ffic e r s . Lieutenant Mike Lee, of the police department's Mental Health Unit, t e s t ifie d that CIT training gives officers a basic understanding of mental health 10

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No. 09-20624 is s u e s and appropriate de-escalation and communication tactics. Yet, the

p r o p o s a l 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 p r o p e r de-escalation tactics responding to volatile situations. The proposal s p e c ific a lly noted: "If we dispatch a non-CIT officer to a CIT call and the officer s h o o t s and kills the mental health consumer, the community will ask why we d id n 't use a CIT officer. We could be liable if a CIT officer was available but not u s e d ." T h e second recommendation was intended to preclude possible conflicts t h a t could arise between a lower-ranked CIT-trained officer and a higher-ranked n o n -C I T -t r a in e d officer that might result in the higher-ranked officer " o v e r c a llin g " the CIT officer's suggested approach to the situation. Lieutenant L e e described CIT training as "180 degrees different than . . . typical police o ffic e r and law enforcement training." For instance, situations involving

m e n ta lly ill persons require a greater degree of patience and can require use of C I T tactics for periods as long as twenty-four hours. CIT-trained officers are t r a in e d 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 t h e ir jobs with the least amount of interference possible," but "ultimate control" n o n e t h e le s s rests with the supervisor, not a junior CIT-trained officer. Thus L ie u t e n a n t Lee recommended that the City either allow the CIT-trained o ffic e r -- e v e n if lower ranked--to be in charge of a scene involving a mentally ill p e r s o n or train all supervisors to a level equal to that of the junior CIT officers s o that conflicts would be less likely to occur. The Assistant Chief and Chief of P o lic e considered the proposals but decided not to implement either.6

The district court determined that the Chief of Police and Executive Assistant's decision not to implement the proposal was an official policymaking decision. The City does not contest this finding.

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No. 09-20624 W e agree with the district court that the Valles presented sufficient s u m m a r y judgment evidence to raise a jury question whether the department's d e c is io n not to implement the CIT training recommendations in the 2004 p r o p o s a l constituted an official policy of failing to adequately train. The Valles a ls o raised a factual question whether a City policymaker (i.e., the Chief of P o lic e ) had actual or constructive knowledge of the alleged inadequacy. The 2 0 0 4 proposal suggests that the City recognized that mental health situations w e r e 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, b u t the City declined to implement those recommendations. The City points to e v id e n c e that the Chief of Police and Executive Assistant Chief had to balance t h e need for training with practical considerations such as budgetary and time c o n s t r a in t s , and that instead of adopting the proposal, the City attempted to id e n tify CIT-trained officers for dispatch purposes to increase the percentage of C I T calls actually handled by CIT officers. Although this evidence suggests that t h e City did not completely ignore the issues raised by the 2004 proposal and s o u g h t other ways to deal with them, it highlights the factual dispute whether t h e City's training and its response to the proposal were inadequate. 2 A s to the second requirement for municipal liability, the district court fo u n d insufficient evidence of causation to survive summary judgment. Plaintiffs must meet a heightened standard of causation in order to hold a m u n ic ip a lit y liable under § 1983. See City of Canton, 489 U.S. at 391­92. Thus, w e require that the municipality's failure to train be the "moving force" that c a u s e d the specific constitutional violation. Bryan County, 219 F.3d at 461. In o t h e r words, the plaintiff must establish a "direct causal link" between the m u n ic ip a l policy and the constitutional injury. Brown, 520 U.S. at 404. "We h a v e said that the connection must be more than a mere `but for' coupling 12

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No. 09-20624 b e t w e e n cause and effect. The deficiency in training must be the actual cause o f the constitutional violation." Thompson v. Connick, 578 F.3d 293, 300 (5th C ir . 2009), cert. granted, ­ S. Ct. ­, 2010 WL 1005953 (U.S. Mar. 22, 2010) (No. 0 9 -5 7 1 ) (internal quotations and citations omitted). The Valles have failed to present sufficient evidence of causation as to the e n tr y of their home. That decision was made by Captain Williams, the head of t h e tactical SWAT team, who was trained in CIT tactics. Moreover, although C I T Officer Broussard testified that she was neither told nor consulted about m a k in g entry into the home, she further testified that she did not disagree with t h e decision to enter. While we are troubled that Captain Williams never spoke d ir e c t ly with the only CIT officer on the scene prior to ordering the forceful entry o f the Valles' home, any alleged lack of CIT training was not the "moving force" in the decision to enter the home. H o w e v e r , we find that there is sufficient evidence of causation to survive s u m m a r y judgment with respect to the escalation of force after the officers' e n t r y . The district court reasoned that because CIT Officer Broussard was on t h e scene, the first goal of the 2004 training proposal))to increase the use of CIT o ffic e r s in situations such as involved in this case))was accomplished even t h o u g h that 2004 policy had not been implemented. Although Officer Broussard w a s 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' h o m e had received any CIT training. Lieutenant Lee emphasized that CIT t r a in in g is "180 degrees different" from standard patrol officer training and a g r e e d that the "command techniques that are employed to take a criminal s u s p e c t into custody can . . . serve to escalate contact with the mentally ill into v io le n ce." Furthermore, Assistant Chief Michael Dirden, at the time responsible fo r internal investigations, testified that he had concerns that the officers who h a n d l e d the situation were not adequately prepared to do so. In addition, the 13

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No. 09-20624 V a lle s ' expert opined that "there is a substantially greater likelihood that [E s p a r z a ] would [have] survive[d] if the officers going in there are the very best t r a in e d , best equipped, best prepared to deal with any kind of eventuality." On t h e other hand, the City presented some testimony to the effect that CIT t r a in in g may not have changed the outcome and that Esparza's death was not a n incident that would have been addressed by implementation of the 2004 t r a in in g proposal. At best, the City's evidence raises a factual dispute whether fa ilu r e to train all of the patrol officers involved in the incident in CIT tactics w a s a moving force in the precipitous escalation of force following their entry, w h ic h violated Esparza's constitutional rights. 3 T h e district court also found that the Valles failed to raise a genuine issue o f material fact on the deliberate indifference prong. Although we find this a c lo s e r question than the district court apparently did, we ultimately conclude th a t the Valles did not present evidence sufficient to survive summary judgment. "Deliberate indifference is a stringent standard, requiring proof that a municipal a c t o r disregarded a known or obvious consequence of his action." Bryan County, 2 1 9 F.3d at 457 (quoting Brown, 520 U.S. at 410) (internal quotation marks o m itte d ). Deliberate indifference is more than negligence or even gross

n e g lig e n c e . See Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 381 (5 t h Cir. 2005) (citation omitted). The Valles must show that "in light of the d u t ie s assigned to specific officers or employees the need for more or different t r a in in g is so obvious, and the inadequacy so likely to result in the violation of c o n s t it u t io n a l rights, that the policymakers of the city can reasonably be said to h a v e 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 a n excessive force claim, as here, the prior act must have involved injury to a t h ir d party. See Sanders-Burns, 594 F.3d at 381. 14

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No. 09-20624 T h e Valles presented some evidence that the City's decision not to im p le m e n t the 2004 CIT training proposal could potentially lead to the d e p r iv a t io n of constitutional rights. Contrary to the district court's findings, we t h in k that the 2004 proposal was, at least in part, intended to address the p o t e n t ia l for the unconstitutional use of excessive force against mentally ill p e r s o n s . Although the proposal does not explicitly state that it was intended to p r e v e n t constitutional violations, we think the use of "magic words" denoting t h a t a policy is intended to address constitutional violations or § 1983 liability a r e unnecessary.7 The 2004 training proposal shows that City policymakers w e r e aware that the CIT program was being significantly underutilized, even t h o u g h it was "proven . . . for helping officers safely de-escalate situations in v o lv in g individuals in serious mental health crises." The proposal explicitly a c k n o w le d g e d potential liability (albeit without referencing § 1983) arising from n o t using CIT officers in situations that called for CIT tactics. Furthermore, it s p e c ific a lly referenced an example of a non-CIT officer shooting and killing a m e n ta lly ill person, a factually similar situation to that here, and specifically r e fe r e n c e d liability for failure to train. The reasonable inference from the

p r o p o s a l's discussion of these liability issues is that the City was concerned a b o u t the potential for excessive force liability, even though no explicit mention o f "constitutional violations" was made. Thus, in our view, the proposal tends t o show that City officials were aware of the potential for constitutional v io la t io n s in situations involving mentally ill persons.

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

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No. 09-20624 H o w e v e r , the Valles did not link this potential for constitutional violations t o a pattern of actual violations sufficient to show deliberate indifference. The p r o p o s a l does not detail any prior specific instances of the use of excessive force b y non-CIT officers. Nor did the Valles elicit testimony that City officials were a w a r e of prior shootings of unarmed mentally ill individuals. The Valles did p r e s e n t some testimony showing that an assistant police chief was, at least, v a g u e ly aware of two shootings of mentally ill persons that occurred after E sp a r z a was killed. However, even assuming that these later shootings involved e x c e s s iv e force, they are not sufficient to show that the City was on notice of s im ila r constitutional violations before Esparza was killed. See Davis, 406 F.3d a t 383 (holding that the deliberate indifference standard requires showing "that t h e failure to train reflects a deliberate or conscious choice to endanger c o n s t i t u t io n a l rights" (emphases added)). Furthermore, although the 2004

p r o p o s a l noted that more than 70 percent of all CIT calls were cleared by nonC I T officers, that statistic says nothing about a pattern of constitutional v io la t io n s because the mere fact of non-CIT officers responding to CIT calls is not it s e lf a violation of any constitutional right. The Valles cannot show a pattern o f excessive force without some link between that statistic and specific instances w h e r e such a response resulted in constitutional violations. The Valles' expert's t e s t im o n y , based on two Houston Chronicle articles pre-dating Esparza's s h o o t in g , that "[a]t least 10 mentally ill people shot [by Houston officers] were u n a r m e d or carrying objects such as screwdrivers or pieces of wood," is also in s u ffic ie n t . This testimony does tend to suggest that prior shootings of

m e n ta lly ill persons in fact had occurred, but it does not establish a pattern of c o n s t it u t io n a l violations. Prior instances must point to the specific violation in q u e s t io n ; "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 e x c e s s iv e force, that inference is too tenuous to survive summary judgment. For 16

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No. 09-20624 o n e , a police officer may be justified in using lethal force against a person c a r r y i n g a screwdriver or other object, depending on the circumstances. See B a lla r d v. Burton, 444 F.3d 391, 402 (5th Cir. 2006) (citing Mace v. City of P a le s tin e , 333 F.3d 621, 624 (5th Cir. 2003)) ("Use of deadly force is not u n r e a s o n a b le when an officer would have reason to believe that the suspect p o s e s a threat of serious harm to the officer or others."). Some greater level of d e t a il about these prior shootings is required. See Davis, 406 F.3d at 383 ("Prior in d ic a tio n s cannot simply be for any and all `bad' or unwise acts, but rather must p o in t to the specific violation in question.") (citations omitted). W e further note that it is difficult to show deliberate indifference in a case s u c h as this one where the City has implemented at least some training. The v e r y fact that the City trained a corps of officers in CIT tactics, demonstrates t h a t it was not deliberately indifferent to the dangers of police interactions with m e n ta lly ill residents. The City considered the proposal, as well as resource c o n s t r a in t s , and determined that the best allocation of limited resources and p e r s o n n e l was to keep the CIT training at the then-current levels. We do not m e a n to say that anytime a municipality must make decisions about resource a llo c a tio n s , such a decision will preclude a finding of deliberate indifference. Indeed, we can imagine scenarios in which a municipality's decision not to a llo c a t e resources to training necessary to prevent constitutional violations w o u ld constitute deliberate indifference. But that is not the case before us. As w e indicated in the discussion of causation, additional training both in terms of t h e number of officers who were so trained and the quantity of training that each o ffic e r received may have made a difference for Esparza. But without a

d e m o n s t r a t e d link showing constitutional violations, notwithstanding the level o f training the City had already implemented, we cannot say that the City was d e lib e r a t e ly indifferent.

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No. 09-20624 N o r did the Valles present sufficient summary judgment evidence to s u c c e e d 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

e x c e p t io n " is extremely narrow; "a plaintiff must prove that the highly p r e d ic ta b le consequence of a failure to train would result in the specific injury s u ffe r e d , and that the failure to train represented the moving force behind the c o n s t it u t io n a l violation." Id. (citations and internal quotations omitted)

(e m p h a s is added). In the one case in which we found a single incident sufficient t o support municipal liability, there was an abundance of evidence about the p r o c liv itie s of the particular officer involved in the use of excessive force. See B r y a n County, 219 F.3d at 462 (finding deliberate indifference based on the p o lic e officer's known "personal record of recklessness and questionable ju d g m e n t ," inexperience, exuberance, and involvement in forcible arrest s itu a tio n s ). On the other hand, we have rejected claims of deliberate

in d iffe r e n c e even where a municipal employer knew of a particular officer's p r o p e n s it ie s for violence or recklessness. See, e.g., Davis, 406 F.3d at 382­85 (fin d in g no deliberate indifference even though city was aware that officer fired w e a p o n inappropriately, had a propensity for violence, and had received citizen c o m p la in t s about the officer); Snyder v. Trepagnier, 142 F.3d 791, 798 (5th Cir. 1 9 9 8 ) (rejecting claim of deliberate indifference even though evidence showed o ffic e r was extremely stressed, may have had a quick temper, and was a g g r e s s iv e ). This court has been wary of finding municipal liability on the basis o f a single incident to avoid running afoul of the Supreme Court's consistent r e je c t io n of respondeat superior liability. See, e.g., Pineda, 291 F.3d at 334­35 (n o t in g that the court rarely finds municipal liability for a failure to train claim o n the basis of a single incident).

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No. 09-20624 H e r e , the Valles did not allege or offer evidence that the officers who r e s p o n d e d to their call had a propensity for using excessive force, violence, or w e r e otherwise reckless. Our case law does not specifically require evidence of s u c h character traits, but such evidence certainly is probative in determining t h a t a "highly predictable" consequence of sending the particular officers into a p a r tic u la r situation would be a constitutional violation. Rather, the Valles a t t e m p t e d to show that a "highly predictable" consequence of sending non-CIT o ffic e r s to a situation involving a mental health consumer would be an u n c o n s t it u t io n a l use of excessive force. "The single incident exception requires p r o o f of the possibility of recurring situations that present an obvious potential fo r violation of constitutional rights and the need for additional or different p o lic e training." Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000) (c it in g Brown, 520 U.S. at 409). A lt h o u g h the evidence shows the possibility--perhaps even the lik e lih o o d -- o f recurring situations involving mental health consumers, the e v id e n c e is far more equivocal on the question whether there was an obvious p o t e n t ia l for the violation of constitutional rights and an obvious need for more o r different training. The Valles presented evidence that in the three years p r e c e d in g Esparza's shooting, Houston police received approximately forty calls p e r day involving situations in which CIT tactics would be appropriate. Less t h a n thirty percent of those calls were actually answered by CIT-trained officers. Coupled with Lieutenant Lee's testimony that general patrol training is "180 d e g r e e s different" from CIT training, these figures suggest that it was, if not o b v i o u s that more CIT training was necessary, at least an issue on the City's r a d a r . However, as discussed above, the Valles did not produce evidence to meet t h e high hurdle of showing that excessive force was an obvious consequence of n o n -C I T officers responding to CIT situations. Indeed, in considering the singlein c id e n t exception, "[s]everal panels of this court . . . have reviewed cases where 19

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No. 09-20624 a decision not to train was made long before the alleged violation, and found that t h e lack of any similar violations indicates that a violation could not be the `h ig h ly predictable consequence' of failing to train." Thompson, 578 F.3d at 299 (c it a t io n s omitted). "This approach reflects common sense: if there have been t h o u s a n d s of opportunities for municipal employees to violate citizens' c o n s t i t u t i o n a l rights, and yet there have been no previous violations, then the n e e d for training is simply not `so obvious.'" Id. at 299­300; see also Conner v. T r a v is County, 209 F.3d 794, 797 (5th Cir. 2000) (holding that if failure to train w a s "so likely to result in the violation of constitutional rights," the plaintiff " w o u ld be able to identify other instances of harm arising from the failure to t r a in " ). We find the actions and decisions of the officers involved in this

u n fo r tu n a t e shooting to be very troubling, indeed. However, the Valles did not p r e s e n t sufficient evidence to show that the highly predictable consequence of s e n d in g non-CIT officers in response to their call for help would result in the s h o o t in g of their son. V F o r the foregoing reasons, we AFFIRM the district court's grant of s u m m a r y judgment in the City's favor.

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