Zabora Brown, et al v. City of Atlanta, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13565
____________________
ZABORA BROWN,
Individually, and as the Natural Parent and
as next friend Antraveious Payne,
ANTRAVEIOUS PAYNE,
Plaintiffs-Appellants,
versus
CITY OF ATLANTA,
A Municipal Corporation of the State of Georgia,
MATTHEW JOHNS,
Individually and in his official capacity as a
Police Officer of the City of Atlanta Police Department,
Defendant-Appellee.
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2 Opinion of the Court 21-13565
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-04850-MLB
____________________
Before B RANCH, G RANT, Circuit Judges, and S CHLESINGER ,∗ District
Judge.
PER CURIAM:
Plaintiffs-Appellants Zabora Brown and Antraveious Payne
appeal an order of the district court granting summary judgment
for the Defendant-Appellee City of Atlanta (“City”).1 Following
oral argument and a review of the record, we affirm.
On September 15, 2016, two Atlanta Police Officers spotted
a black BMW with a stolen tag during their regular patrol. Officers
pursued the vehicle, reaching speeds of around 110 mph and trav-
elling on both highway and surface roads through commercial and
residential areas. Officer Matthew Johns, who was assigned to a
specialized unit of the Atlanta Police Department (“APD”) known
as the Atlanta Proactive Enforcement and Interdiction Unit
∗ The Honorable Harvey Schlesinger, United States District Judge for the Mid-
dle District of Florida, sitting by designation.
1 Brown brought this suit as the natural parent and next friend of Payne. The
district court granted Payne’s motion to join this matter as an interested party
when he reached the age of majority.
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21-13565 Opinion of the Court 3
(“APEX”), heard radio calls about the pursuit. Officer Johns joined
the chase when it passed his location in contravention of a direct
order that no APEX officers get involved.
After about ten minutes, a Georgia State Patrol Officer be-
came involved with the pursuit and successfully PIT maneuvered
the black BMW. Once the suspects were cornered, Officer Johns
moved into position to apprehend occupants of the passenger side.
The occupants of the BMW exited the vehicle; without police in-
struction, each chose to lay face-first on the ground. Payne exited
the passenger side of the vehicle.
Officer Johns ran up to Payne, kicking him in the head. Of-
ficer Johns then used his foot, lifting it vertically and stomping
down on the back of Payne’s head as Payne lay face down on the
ground. Officer Johns knelt on Payne’s back and struck him in the
left side of his body while trying to handcuff him. He punched
Payne again in the head with a closed left-handed fist. As Officer
Johns put Payne’s left wrist in handcuffs, he punched him several
more times in the abdomen. Throughout this encounter, Payne did
not attack Officer Johns or resist the arrest. In total, Officer Johns
kicked and punched Payne in the head, neck, and torso for thirty-
six seconds. Dashcam footage captured most of the interactions be-
tween police and the occupants of the car immediately following
the chase.
APD officers placed the suspects under arrest as other offic-
ers arrived on the scene. Within a minute of the stop, a Senior Pa-
trol Officer arrived and saw blood on Payne’s mouth and near one
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4 Opinion of the Court 21-13565
of his ears. She called for an ambulance to take Payne to the hospi-
tal for evaluation and treatment. Payne received injuries and abra-
sions to his head and face and suffered a concussion that required
an overnight hospital stay.
Following the incident, a Fulton County grand jury returned
an indictment against Officer Johns, charging him with four counts
of aggravated assault, two counts of making false statements and
writings, and two counts of violating his oath of office. Officer
Johns pleaded guilty to all counts in the indictment. After accepting
the guilty plea, the Superior Court sentenced Officer Johns to
twenty years in prison, to serve five years.
In November 2017, Brown brought this action against the
City and former APD Officer Johns, pursuant to 42 U.S.C. §§ 1983
and 1988 as well as the Fourth and Fourteenth Amendments to the
Constitution of the United States. Payne and Brown sued Officer
Johns under § 1983 for excessive force and the City seeking to im-
pose municipal liability. For the municipal liability claim, Brown
and Payne alleged APD officers acted pursuant to customs and
practices in a manner that violated the constitutional rights of citi-
zens. They claimed the City failed to adequately train, supervise,
discipline, and screen officers for hiring. The parties all moved for
summary judgment. The district court denied the cross motions
for summary judgment on the excessive-force claims. But the dis-
trict court granted the City’s motion for summary judgment on
municipal liability, concluding Plaintiffs had put forth “no evidence
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21-13565 Opinion of the Court 5
or ‘specific facts’ to support their sweeping” municipal liability the-
ory. Plaintiffs now appeal.
Brown and Payne raise two issues contending the district
court: (1) erred in its interpretation and application of
Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978); and (2) misapplied the
summary judgment standard. This Circuit reviews rulings on sum-
mary judgment
de novo, applying the same legal standard as the
district court.
Smith v. Owens, 848 F.3d 975, 978 (11th Cir. 2017).
Under
Monell, a municipality can be liable for an employee’s
unconstitutional action if the action is directly caused by the mu-
nicipality. 436 U.S. at 690. “[T]o impose § 1983 liability on a munic-
ipality, a plaintiff must show: (1) that his constitutional rights were
violated; (2) that the municipality had a custom or policy that con-
stituted deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation.”
McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Simple respondeat su-
perior or vicarious liability will not attach under § 1983.
City of
Canton v. Harris, 489 U.S. 378, 385 (1989). It must be the execution
of the government’s policy or custom that causes the injury.
Id.
Stated otherwise, the municipal policy or custom must be “the
moving force behind the [constitutional] violation.”
Gold v. City of
Miami, 151 F.3d 1346, 1354 (11th Cir. 1998).
The deliberate indifference standard applies to a failure to
train employees or properly screen new applicants.
Bd. of Cnty.
Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407 (1997);
Can-
ton, 489 U.S. at 389. “Only where a municipality’s failure to train
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6 Opinion of the Court 21-13565
its employees in a relevant respect evidences a ‘deliberate indiffer-
ence’ to the rights of its inhabitants can such a shortcoming be
properly thought of as a city ‘policy or custom’ that is actionable
under § 1983.”
Canton, 489 U.S. at 389. Failing to adequately scru-
tinize an applicant’s background will constitute deliberate indiffer-
ence “where adequate scrutiny of the applicant’s background
would lead a reasonable policymaker to conclude that the plainly
obvious consequence of the decision to hire the applicant would be
the deprivation of a third party’s federally protected right.”
Brown,
520 U.S. at 398. Deliberate indifference is necessary because in a
broad sense, “every injury is traceable to a hiring decision.”
Id. at
415.
Of the issues raised in the briefs, only three warrant in-depth
discussion here.2 The first is whether the City failed to adequately
train its officers. Brown and Payne presented two witnesses—Of-
ficer Johns and an expert witness—who they maintain create a fac-
tual question about whether officers are trained to kick and strike
suspects, or whether Officer Johns’s actions were a conscious
choice to violate APD policy. The expert testified that the APD
“regularly teaches officers to use the very physical techniques,” em-
ployed by Officer Johns and that Officer Johns “should not have
been fired” because “he complied with the policies and procedures
2 Plaintiffs-appellants’ other arguments are that the district court misapplied
the law or failed to consider material evidence, but we do not need to assess
these arguments as we review their claims
de novo in this appeal.
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21-13565 Opinion of the Court 7
that were written by the APD.” The district court acknowledged
this testimony but dismissed it because the APD, through its poli-
cies, authorizes the use-of-force techniques at issue only when the
subjects resist arrest. Video evidence presented to the district court
showed Payne did not resist arrest during the incident. Thus, the
district court reasoned there was no genuine issue of material fact
and the claim failed.
The district court properly rejected testimony from Officer
Johns and the expert that Officer Johns was acting under APD pol-
icies and training when he used excessive force against Payne. At
the time of the injury, APD policy allowed force that is reasonable
and necessary to affect an arrest, to defend the officer or another
from physical assault, or to accomplish lawful objectives. The
video shows that Payne laid down on the ground and did not resist
arrest after he exited the vehicle. No other officer on the scene used
such force in the arrest—to the contrary, the Senior Patrol Officer
promptly called an ambulance for Payne once she saw blood.
Given the videos’ contradiction of the testimony that Officer Johns
was complying with the APD’s policies and procedures, the district
court’s conclusion that Brown and Payne could not point to a pol-
icy, practice, or custom that directly caused Payne’s injuries is sup-
ported by the record.
See Scott v. Harris, 550 U.S. 372, 379 (2007)
(“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”).
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8 Opinion of the Court 21-13565
Second, Brown and Payne maintain the district court erred
in holding the evidence insufficient to support a finding that the
APD failed to adequately investigate Officer Johns’s background—
specifically his military and psychological history—before hiring
him. Payne and Brown maintain the APD’s failure to investigate
and evaluate Officer Johns for PTSD was the moving factor behind
his use of excessive force.
The district court did not err in finding that Payne and
Brown failed to present sufficient facts to support their claims. In
October 2009, Dr. Joseph Hill conducted a pre-hiring psychological
evaluation of Officer Johns on behalf of the APD. The psychologi-
cal evaluation covered the broad functioning range of the appli-
cant, across any disorder, and any type of dysfunction and psycho-
logical services, including PTSD. As part of his screening, Dr. Hill
reviewed verified information, employment history, educational
background, and military experience.
During his evaluation and screening, Officer Johns denied he
had trouble sleeping, had intrusive thoughts, had psychological is-
sues, or took medication for psychological issues. Officer Johns re-
ported no PTSD symptoms to Dr. Hill during the psychological
evaluation for the APD. Dr. Hill ultimately reported no indication
of PTSD based on his findings from the evaluation.
There was no evidence the APD’s screening of Officer Johns
before hiring constitutes deliberate indifference. Given his re-
sponses to the psychological evaluation conducted before hir-
ing−which screened for PTSD−his use of excessive force against
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21-13565 Opinion of the Court 9
Payne was not a plainly obvious consequence of the APD’s deci-
sion to hire him. There is no genuine issue of material fact, and the
district court did not err in granting summary judgment.
See
Brown, 520 U.S. at 398.
Lastly, Plaintiffs-appellants contend that the City failed to
adequately supervise Officer Johns. As we have established, delib-
erate indifference requires the supervising entity to know that en-
hanced supervision is needed,
see Bd. of Cnty. Comm’rs, 520 U.S.
at 407 (“[A municipality’s] continued adherence to an approach
that they know or should know has failed to prevent tortious con-
duct by employees may establish the conscious disregard for the
consequences of their action—the ‘deliberate indifference’—neces-
sary to trigger municipal liability.”), but the record is clear that the
City was not aware that Officer Johns required additional supervi-
sion. Accordingly, we conclude that the City was not deliberately
indifferent as to Officer Johns’s supervision.
AFFIRMED.
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