Excessive force claims against city proceed

A plaintiff’s constitutional claims against a city for its police officers’ repeated usage of excessive force have survived dismissal in the Western District of Virginia after the court found the pleadings supported four theories of liability.

The plaintiff sued the City of Lynchburg and some of its officers after he was attacked by police dogs during two separate arrests. He claimed police routinely ignored use of force policies and cited past instances to argue that the city condoned and ratified the use of excessive force and failed to train or discipline officers.

U.S. District Judge Norman K. Moon rejected the city’s defense that it wasn’t the moving force behind the violations, saying the plaintiff “has sufficiently alleged that the city condoned a practice so persistent and widespread as to constitute a custom or usage with the force of law.”

“Though the City contends that it cannot have been a moving force behind the alleged excessive force in this case because the LPD’s alleged determination occurred after the use of force, the Fourth Circuit’s precedent in Starbuck [v. Williamsburg James City County] forecloses the argument,” he explained.

The opinion is Wesley v. City of Lynchburg (VLW 023-3-267).

The arrests

Calvin Wesley was arrested by officers of the Lynchburg Police Department, or LPD, in two separate incidents during which he was allegedly subjected to unconstitutionally excessive force. Both instances involved the use of police dogs.

The first occurrence involved a traffic stop during which the LPD tried to arrest Wesley for an outstanding warrant. According to Wesley, he was cornered against the vehicle door and cooperating when an officer released his police dog, causing him injuries.

In the second case, LPD officers responded to Wesley’s home for a domestic disturbance report. Wesley fled the home and the officers pursued him into a wooded area with a police dog. Again, Wesley alleged that LPD officers allowed their dog to injure him.

‘Routinely ignored’

Wesley filed suit against the City of Lynchburg and several individual officers for violations of his Fourth and Fourteenth Amendment rights, as well as gross, willful, wanton and reckless negligence.

He argued that the LPD’s facially constitutional use of force policies were “routinely ignored in custom and practice.” The uses of force against him weren’t documented, processed or investigated according to LPD policy, he believed. Discovery requests were also ignored.

Citing 14 incidents between 2001 and 2020, Wesley claimed it’s “obvious that LPD has failed to properly train its officers in the use of force because of the multitude of instances in which officers have used force in violation of policy.” Three incidents involved police dogs.

Although the LPD reported and investigated his incidents, Wesley contended that “none of the officers were disciplined or counseled” and, therefore, the city “has ratified the unconstitutional customs and practices of its officers.”

The city moved to dismiss.

Policy or custom

Rather than under respondeat superior, Moon explained that “liability only attaches to the municipality directly, as opposed to its officials in their official capacity, in cases where the municipality causes the deprivation ‘through an official policy or custom.’”

“And a ‘policy or custom may possibly be inferred from continued inaction in the face of a known history of widespread constitutional deprivations on the part of city employees,’ but ‘will not be inferred merely from municipal inaction in the face of isolated constitutional deprivations by municipal employees,’” the judge wrote.

Here, Wesley amply alleged that the city “condoned a practice so persistent and widespread as to constitute a custom or usage with the force of law.”

The judge pointed out that the 4th U.S. Circuit Court of Appeals has recognized custom by condonation, and “‘[u]nder this theory of liability, a city violates § 1983 if municipal policymakers fail “to put a stop to or correct a widespread pattern of unconstitutional conduct.”’”

Moon added that the Fourth Circuit “has elaborated that, for such a claim to survive a motion to dismiss, ‘[t]he recitation of facts need not be particularly detailed, and the chance of success need not be particularly high.’”

The judge acknowledged that Wesley’s three examples “could be construed as excessive use of force by canines similar enough to Wesley’s alleged two experiences that ‘municipal employees could reasonably infer from [them] tacit approval of the conduct at issue.’”

“And courts within the Fourth Circuit have allowed claims regarding an unconstitutional custom or practice by police to proceed when plaintiffs have alleged a similar number of incidents demonstrating such a custom or practice,” he said.

As such, Moon refused to dismiss Wesley’s § 1983 claims based on a theory of unconstitutional custom or policy.

Failure to train

Allegations of failure to train must “support that ‘city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights,’” the judge described.

A city may then be “deemed deliberately indifferent if the policymakers choose to retain that program,” Moon continued.

Wesley alleged that the LPD “maintains a facially constitutional policy that limits t[he] use of police canines to cases in which a physical threat or violence is imminent,” but “LPD officers are not adequately trained to comply with their own facially constitutional use of force policy.”

“The Fourth Circuit has recognized that training deficiencies can include ‘tacit authorizations’ of unconstitutional conduct,” the judge said.

Refusing to dismiss the claim, Moon said “Wesley’s allegations, if true, support reasonable inferences that the city was ‘put on notice that a new [training] program is called for.’”

Failures to act

Moon refused to dismiss Wesley’s claims for failure to discipline, pointing out that he adequately asserted that the city’s officers “were tacitly encouraged to continue self-developed practices of [excessive force] by the deliberate failure of responsible municipal officials to exercise discipline or corrective supervision to halt the widespread, known practices.”

Finally, the judge rejected the city’s “moving force” defense, holding that Wesley sufficiently alleged that the city ratified its officers’ acts by determining they were “within policy.”

‘Grateful’

M. Paul Valois of James River Legal Associates in Lynchburg represented Wesley.

“I am grateful that the City of Lynchburg will be required to publicly defend its vicious use of police dogs,” he told Virginia Lawyers Weekly.

“While the official LPD Use of Force Policy recognizes that police dogs can kill and while this policy also demands that police dogs only be deployed against subjects who pose an imminent threat, the video evidence in this case plainly shows that LPD officers regularly violate this policy with impunity by deploying police dogs to bite unarmed misdemeanor suspects who pose no threat to anyone,” he added.

Valois also warned that “this unconstitutional practice, if allowed to continue, will inevitably maim or kill someone, perhaps an innocent child. It needs to be stopped now.”