Bradford Bohanon v. City of Indianapolis

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 20-3125
BRADFORD BOHANON ,
Plaintiff-Appellant,
v.
C ITY OF I NDIANAPOLIS ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-02117-JRS-MJD — James R. Sweeney II, Judge.
____________________
A RGUED M ARCH 31, 2021 — DECIDED A UGUST 22, 2022
____________________
Before SYKES , Chief Judge, and F LAUM and E ASTERBROOK,
Circuit Judges.
S YKES , Chief Judge. In August 2014 Indianapolis Police
Officers Michael Reiger and John Serban went to Mikie’s
Pub in Indianapolis to celebrate Reiger’s birthday. Both
officers were off duty and in plain clothes. Sometime after
the two started drinking, Bradford Bohanon arrived at the
bar. After receiving his bill, Bohanon argued with the bar-
tender that he had been overcharged. Reiger and Serban

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2 No. 20-3125
intervened, a fight ensued, and the officers brutally beat
Bohanon in the pub’s parking lot.
Bohanon sued the City of Indianapolis under 42 U.S.C.
§ 1983 alleging that the officers used excessive force in
violation of his rights under the Fourth Amendment. His
theory of municipal liability under Monell is that his injuries
were caused by a “gap” in the City’s policies. The City’s
substance-abuse policy prohibits off-duty officers with any
alcohol in their blood from performing law-enforcement
functions subject to a narrow exception. An officer may do
so only in an “extreme emergency situation[]” where police
“action is required to prevent injury to the off duty [officer]
or another, or to prevent the commission of a felony or other
serious offense.” Bohanon argues that in crafting this excep-
tion, the City was deliberately indifferent to the obvious risk
of constitutional violations and therefore caused the officers
to use excessive force against him.
The district judge denied the City’s motion for summary
judgment on the excessive-force claim, and the case pro-
ceeded to trial. A jury found the City liable and awarded
Bohanon $1.24 million in damages. The City moved for
judgment as a matter of law, and the judge granted the
motion and vacated the jury’s verdict.
We affirm. The officers’ conduct was egregious, but
Bohanon’s theory for holding the City liable is flawed.
Municipalities cannot be held vicariously liable under § 1983
for the constitutional torts of their employees; for the City to
be liable, a municipal policy or custom must have caused
Bohanon’s constitutional injury. Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978). A claim against a municipality
under § 1983 requires proof of both municipal fault and

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No. 20-3125 3
causation. Bohanon did not prove municipal fault because
the narrow exception in the City’s substance-abuse policy
did not present a policy “gap” that made it glaringly obvi-
ous that off-duty officers would use excessive force in
violation of the Fourth Amendment. And because no ex-
treme emergency situation existed at the time of the incident,
the City’s policies expressly prohibited the officers’ conduct
and were not the “moving force” cause of Bohanon’s injury.
Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997).
I. Background
At around 1 a.m. on August 7, 2014, Officers Reiger and
Serban visited Mikie’s Pub in Indianapolis. They were off
duty, wore plain clothes, and arrived in Reiger’s personal
vehicle. They each drank several beers and at least one shot
while at the pub.
After the officers began drinking, Bohanon arrived and
ordered a double scotch. Feeling generous, he also ordered a
round of shots for everyone at the bar. But when Bohanon
received his tab, his mood soured. He believed that he had
been overcharged and asked the bartender for an itemized
receipt. When she refused, Bohanon became loud and com-
bative. The bartender took the tab from Bohanon and asked
him to leave. Bohanon refused and continued to argue. The
doorman of Mikie’s Pub intervened, but Bohanon still re-
fused to leave.
When the situation did not de-escalate, Serban decided to
get involved. He identified himself as a police officer, waved
his badge in Bohanon’s face, and told him to leave. Reiger
acted as a cover officer, standing behind Serban in the “tacti-
cal v” position used to provide protection for an officer

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4 No. 20-3125
engaging a suspect. Bohanon then grabbed Serban’s badge
and threw it on the floor. At that point Reiger joined in the
confrontation and grabbed Bohanon’s right arm. Serban
threw two punches, striking the doorman with the first and
Bohanon with the second. Serban placed Bohanon in a
chokehold, and Reiger punched Bohanon several times in
the back of the head.
Serban’s chokehold caused Bohanon to lose conscious-
ness. The officers then dragged him by his feet, face down,
out of the pub and into the parking lot. Once outside, the
officers kicked the still-unconscious Bohanon in the back and
stepped on his head, grinding his face into the pavement.
Bohanon briefly regained consciousness but was stomped
back into the ground and knocked unconscious again. When
Bohanon awoke, one of the officers said, “[i]f you try to
report us[,] we will find you.” The officers then kicked or hit
Bohanon in the head, knocking him unconscious for a third
and final time. When he regained consciousness, he was
covered in blood and the cash from his wallet was gone.
Bohanon filed a complaint with the Indianapolis Police
Department. Both the Department’s Special Investigations
Unit and Internal Affairs Division launched an investigation.
The Department found that Reiger’s and Serban’s actions
violated a host of City policies, including impermissibly
using excessive force, using an inappropriate chokehold,
failing to render medical aid, and failing to report the inci-
dent and contact a supervisor about it. The Department also
determined that there was probable cause to believe that the
officers had committed felony offenses, and both officers
were charged with felony battery. (They were later acquit-

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No. 20-3125 5
ted.) Both officers were discharged on the recommendation
of the Chief of Police.
As the Department’s investigation revealed, the officers’
actions in brutally beating Bohanon were plainly prohibited
by the City’s express policies. The Department’s General
Order 3.24 covers substance abuse and was enacted “to
ensure [that officers] are not under the influence of alcohol
or other drugs while acting in any law enforcement capaci-
ty.” The policy categorically prohibits both on-duty officers
and off-duty officers in uniform from having alcohol in their
blood. It also prohibits off-duty officers with alcohol in their
blood from performing any law-enforcement function
subject to a very narrow and precisely stated exception. An
officer who has consumed alcohol may engage in a law-
enforcement function only “in extreme emergency situations
where injury to the officer or another person is likely with-
out law enforcement intervention.” General Order 3.12,
which details the responsibilities of off-duty officers, defines
“[a]n extreme emergency … to be a situation where action is
required to prevent injury to the off-duty [officer] or another,
or to prevent the commission of a felony or other serious
offense.”
General Order 3.12 also creates a reporting requirement
for an off-duty officer who takes law-enforcement action.
Off-duty officers “must make [an] incident report if they are
directly involved in … action” as a law-enforcement officer.
This reporting requirement applies irrespective of whether
the off-duty officer had consumed alcohol.
The City’s policies also set guidelines for the use of force.
General Order 1.30 limits the use of force to “only that
amount of force that is reasonable, given the facts and

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6 No. 20-3125
circumstances known by the officer at the time of the
event.”1 The City considers the use of force appropriate
“only when necessary and justified to accomplish lawful
objectives.” These limitations apply even if there’s an “ex-
treme emergency situation” and even if the officer is off duty
when performing a law-enforcement function. Additionally,
General Order 1.30 requires an officer to “promptly docu-
ment any use of force” and to obtain medical assistance for
anyone harmed.
In August 2016 Bohanon filed suit against Reiger, Serban,
and the City alleging constitutional claims under § 1983 and
additional state-law claims. Bohanon ultimately settled out
of court with both Reiger and Serban. Bohanon and the City
stipulated that Bohanon’s state-law respondeat superior
claim against the City should be dismissed with prejudice.
All that remained was Bohanon’s § 1983 claim for municipal
liability against the City under Monell. Bohanon’s principal
allegation was that the City caused his constitutional injury
when the officers used excessive force against him in viola-
tion of his Fourth Amendment rights. He also alleged that
the City violated his constitutional rights based on Reiger’s
failure to intervene to stop Serban’s conduct, the officers’
illegal seizure of the money in his wallet, and their deliberate
indifference to his medical needs when they failed to obtain
medical assistance.
The City moved for summary judgment, arguing that the
undisputed facts did not support the conclusion that it was
1 General Order 1.30 was revised on August 10, 2016, and again on
August 3, 2020. We refer to the order in effect on August 7, 2014, the date
of the incident.

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No. 20-3125 7
deliberately indifferent to Bohanon’s constitutional rights or
that its policies caused the constitutional violations. The
judge granted the motion for Bohanon’s claims alleging
failure to intervene, illegal seizure, and deliberate indiffer-
ence to his medical needs. However, relying largely on
Glisson v. Indiana Department of Corrections, 849 F.3d 372 (7th
Cir. 2017) (en banc), the judge denied the motion for
Bohanon’s Monell claim based on the officers’ excessive use
of force.
At trial the parties stipulated that Reiger and Serban used
excessive force against Bohanon at Mikie’s Pub. And they
stipulated that the City permits officers to use only an
amount of force that is reasonable under the circumstances.
The evidence at trial established that Bohanon’s argument
with the bartender at Mikie’s Pub did not qualify as an
extreme emergency situation under the City’s policies.
The judge instructed the jury to consider whether
Bohanon proved by a preponderance of the evidence (1) that
“the City was deliberately indifferent to a likelihood that its
policies would cause off-duty police officers to use unrea-
sonable force while having alcohol in their blood” and
(2) that Reiger’s and Serban’s use of unreasonable force was
“caused by the City’s policies.” The judge then instructed the
jury on damages: “If you find that plaintiff proved each of
these things by a preponderance of the evidence, then you
must decide for plaintiff and go on to consider the question
of damages.” The jury returned a verdict for Bohanon and
awarded $1,241,500 in damages.
The City then moved for judgment as a matter of law
under Rule 50(b) of the Federal Rules of Civil Procedure. It
again argued that it was not deliberately indifferent to

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8 No. 20-3125
Bohanon’s constitutional rights and that no municipal policy
or custom caused Bohanon’s injury, so it couldn’t be held
liable under Monell, 436 U.S. at 692. The judge agreed,
granted the motion, and entered judgment for the City.
II. Discussion
We review de novo the judge’s decision to grant the City’s
motion for judgment as a matter of law, drawing all reason-
able inferences in Bohanon’s favor. Ruiz-Cortez v. City of
Chicago, 931 F.3d 592, 601 (7th Cir. 2019). We may not re-
weigh the evidence and must affirm the jury’s verdict “un-
less there is no legally sufficient evidentiary basis for a
reasonable jury to find for the non-moving party.” J.K.J. v.
Polk County, 960 F.3d 367, 378 (7th Cir. 2020) (en banc) (quo-
tation marks omitted).
Section 1983 provides a federal remedy against state ac-
tors who deprive others of federal rights. First Midwest Bank
ex rel. Est. of LaPorta v. City of Chicago, 988 F.3d 978, 986 (7th
Cir. 2021). To prevail on a § 1983 claim, the plaintiff must
prove “that: (1) he was deprived of a right secured by the
Constitution or laws of the United States; and (2) the depri-
vation was visited upon him by a person or persons acting
under color of state law.” Buchanan-Moore v. County of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009).
A municipality is a “person” under § 1983 and may be
held liable for its own violations of the federal Constitution
and laws. Monell, 436 U.S. at 690–91. “Its own” is an im-
portant qualifier—a municipality is not vicariously liable for
the torts of its employees or agents. J.K.J., 960 F.3d at 377. As
the Supreme Court has repeatedly cautioned, the statute

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No. 20-3125 9
does not incorporate the common-law doctrine of re-
spondeat superior. See id.
Accordingly, a plaintiff can prevail on a Monell claim for
municipal liability only when challenging the “execution of
a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be
said to represent official policy.” 436 U.S. at 694. We have
recognized three types of municipal action that can support
municipal liability under § 1983: “(1) an express policy that
causes a constitutional deprivation when enforced; (2) a
widespread practice that is so permanent and well-settled
that it constitutes a custom or practice; or (3) an allegation
that the constitutional injury was caused by a person with
final policymaking authority.” Spiegel v. McClintic, 916 F.3d
611, 617 (7th Cir. 2019) (quotation marks omitted). Inaction
can also give rise to liability if it reflects the municipality’s
“conscious decision not to take action.” Glisson, 849 F.3d at
381.
Next, a plaintiff bringing a Monell claim against a munic-
ipality “must show that the policy or custom demonstrates
municipal fault.” Dean v. Wexford Health Sources, Inc., 18 F.4th
214, 235 (7th Cir. 2021) (quotation marks omitted). Municipal
fault is easily established when a municipality acts, or
directs an employee to act, in a way that facially violates a
federal right. Brown, 520 U.S. at 404–05. On the other hand,
where the plaintiff does not allege that the municipality’s
action was facially unconstitutional but merely alleges that
the municipality caused an employee to violate a federal
right, a “rigorous standard[] of culpability … applie[s] to
ensure that the municipality is not held liable solely for the
actions of its employee.” Id. at 405. The plaintiff must

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10 No. 20-3125
demonstrate that the municipality itself acted with “deliber-
ate indifference” to his constitutional rights. Id. at 407. This is
not an easy showing. It requires the plaintiff to “prove that it
was obvious that the municipality’s action would lead to
constitutional violations and that the municipality con-
sciously disregarded those consequences.” LaPorta, 988 F.3d
at 987.
Finally, a plaintiff bringing a Monell claim must prove
that the municipality’s action was the “moving force” behind
the federal rights violation. Brown, 520 U.S. at 404. This is a
“rigorous causation standard” that requires the plaintiff to
“show a ‘direct causal link’ between the challenged munici-
pal action and the violation of his constitutional rights.”
LaPorta, 988 F.3d at 987 (quoting Brown, 520 U.S. at 404).
These three requirements to establish a Monell claim—
policy or custom, municipal fault, and “moving force”
causation—are by now familiar. And they “must be scrupu-
lously applied” to avoid a claim for municipal liability
backsliding into an impermissible claim for vicarious liabil-
ity. Id. That’s especially true of the municipal-fault and
causation requirements where (as here) “a plaintiff claims
that the municipality has not directly inflicted an injury, but
nonetheless has caused an employee to do so.” Brown,
520 U.S. at 405. In these circumstances a rigorous application
of the proof requirements is especially important. Id.
Bohanon’s Monell claim is premised on the Fourth
Amendment right to be free from unreasonable seizures. See
King v. Hendricks Cnty. Comm’rs, 954 F.3d 981, 984 (7th Cir.
2020). The parties agree that his claim satisfies the threshold
requirement that the officers acted under color of law when
they engaged and then brutally beat Bohanon at Mikie’s

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No. 20-3125 11
Pub.2 Bohanon also satisfies the first requirement necessary
to bring a Monell claim. General Order 3.24 is an express
policy prohibiting police action by off-duty officers who
have been drinking (subject to a narrow exception). Bohanon
claims that it caused the officers to use excessive force
against him. And municipal liability can be premised, as
here, on municipal inaction, such as “a gap in express[]
policies.” Daniel v. Cook County, 833 F.3d 728, 734 (7th Cir.
2016); see also J.K.J., 960 F.3d at 378.
It’s at steps two and three—municipal fault and “moving
force” causation—that Bohanon’s claim collapses. It’s undis-
puted that the officers violated General Order 3.24 when
taking off-duty police action while drinking because no
extreme emergency situation was present at Mikie’s Pub. The
parties stipulated to this fact at trial. And it’s undisputed that
the officers violated General Order 1.30 by using unreasona-
ble force against Bohanon. Therefore, the City’s policies
expressly prohibited both the officers’ off-duty law-
enforcement action and the excessive force used against
Bohanon. The City’s policies prohibiting these actions are
clearly not facially unconstitutional.
Bohanon’s theory is that General Order 3.24 should not
have included an exception for extreme emergency situa-
tions. He contends that this “gap” in the policy led to the
“highly predictable” outcome of his assault. In Bohanon’s
2 Because the City concedes that both officers engaged in police action,
we have no occasion to consider whether Bohanon suffered a constitu-
tional injury. See, e.g., First Midwest Bank ex rel. Est. of LaPorta v. City of
Chicago, 988 F.3d 978, 992–93 (7th Cir. 2021) (holding that the plaintiff
suffered no constitutional injury when he was shot by an off-duty police
officer).

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12 No. 20-3125
view the existence of any exception permitting off-duty
officers to take police action with alcohol in their blood
demonstrates that the City was deliberately indifferent to the
obvious risk of constitutional violations based on police use
of excessive force.
We note at the outset that because Bohanon does not al-
lege that the City directly violated his rights, his “claim
presents ‘difficult problems of proof.’” Dean, 18 F.4th at 236
(quoting Brown, 520 U.S. at 406). A gap in policy “amounts to
municipal action for Monell purposes only if the [municipali-
ty] has notice that its program will cause constitutional
violations.” J.K.J., 960 F.3d at 379 (emphasis added). Typical-
ly notice is established by “a prior pattern of similar consti-
tutional violations.” Id. at 380. Here, the parties agree that no
similar incident—let alone a pattern of similar incidents—
had occurred since General Order 3.24 was enacted.
Bohanon therefore must establish that his case is within
the “narrow range of circumstances” where notice can be
inferred from the obviousness of the consequences of failing
to act. Id. (quoting Brown, 520 U.S. at 409). These cases are
“rare.” Dean, 18 F.4th at 236 (quoting Connick v. Thompson,
563 U.S. 51, 64 (2011)). To succeed, Bohanon must show that
the “risk of constitutional violations” was “so high … that
the municipality’s failure to act can reflect deliberate indif-
ference and allow an inference of institutional culpability,
even in the absence of a similar prior constitutional viola-
tion.” J.K.J., 960 F.3d at 380.
Bohanon did not clear this high bar. In the rare cases
where we have found this standard to be met, the risks of
municipal inaction have been blatantly obvious. See, e.g., id.
at 379, 384 (holding that the lack of a confidential system for

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No. 20-3125 13
reporting sexual abuse in prison would lead to more as-
saults); Glisson, 849 F.3d at 378, 382 (holding that the failure
to coordinate cancer treatment would lead to health harms);
Daniel, 833 F.3d at 736 (holding that systemic problems with
healthcare scheduling and recordkeeping at a county prison
would lead to constitutionally deficient healthcare);
Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 929 (7th
Cir. 2004) (holding that completely inadequate suicide-
prevention training for prison guards would lead to more
suicides). In contrast, it is not at all obvious that a policy
prohibiting police action while drinking, subject to a narrow
and specific exception to protect life and limb, would lead
off-duty officers to use excessive force in violation of the
Constitution. That’s especially true when coupled with the
City’s policy prohibiting the use of excessive force. Nothing
about the text of General Order 3.24 alone put the City on
notice that constitutional violations of this kind were likely
to occur. “To hold otherwise would significantly expand
Monell and lead us down the road to vicarious liability.”
Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 307 (7th Cir.
2010).
Bohanon has also failed to prove that the City’s policies
were the cause of his injuries. It “is an explicit requirement
of § 1983 and an uncontroversial application of basic tort
law” that a plaintiff must prove that the defendant caused
his injury. Id. at 306. This requirement is particularly rigor-
ous when the plaintiff claims that the municipality has not
directly caused the injury. Brown, 520 U.S. at 405; see also
Monell, 436 U.S. at 694 (holding that the municipal policy
must be the “moving force” behind the constitutional depri-
vation).

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14 No. 20-3125
There is simply no evidence that the City’s policies
caused Bohanon’s injuries. The officers violated City policy;
their actions did not fall within General Order 3.24’s narrow
exception. At trial Reiger testified that he didn’t care if he
was disciplined for violating policy. In other words, City
policy did not influence Reiger’s decision to use excessive
force, let alone cause it. Causation is similarly attenuated for
Serban, who testified that he used force based on Bohanon’s
actions, not because of any gap in the City’s policies.
Bohanon presented no evidence to the contrary. Here, the
officers violated City policy that otherwise would have
prevented Bohanon’s injuries. City policy clearly was not the
moving force behind the constitutional violation.
What happened to Bradford Bohanon was a tragedy, and
we share the district judge’s sympathy for Bohanon. But “a
municipality cannot be held liable solely because it employs a
tortfeasor.” Monell, 436 U.S. at 691. Because Bohanon did not
establish municipal fault and moving-force causation, the
judge was right to set aside the jury’s verdict and enter
judgment for the City.
A FFIRMED

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