Court of Appeals affirms city not liable for excessive force used by off-duty officers who consumed alcohol

Federal judge overturns $1.2M civil rights jury verdict against City of Indianapolis


On 8/7/2014, off-duty Indianapolis Police Department (IPD) officers Reiger and Serban entered Mikie’s Pub in Indianapolis. They were dressed in plain clothes and arrived in a personal vehicle. They drank several beers and at least one shot while at the bar.

While the officers were inside, Bradford Bohanon ordered a double scotch for himself and a round of shots for all the other patrons. When Bohanon received the bar bill, he claimed to be overcharged, complained to the bartender and requested an itemized bill. The bartender refused and Bohanon became loud and combative. The bartender asked him to leave but he refused. The doorman intervened but Bohanon still refused to leave.

Officer Serban identified himself as a police officer; displayed his badge and ordered Bohanon to leave. Officer Reiger stood behind Serban to provide backup. Bohanon grabbed Serban’s badge and threw it on the floor. Reiger grabbed Bohanon’s right arm, while Serban punched him. Serban placed Bohanon in a chokehold while Reiger punched him several times in the back of the head.

The chokehold rendered Bohanon unconscious. The officers dragged him face down out into the parking lot. They kicked the still unconscious Bohanon in the back, stepped on his head and ground his face into the pavement. He briefly awakened but was stomped on and knocked unconscious again. When he woke up, one of the officers told him that if he reported the matter, they would find him. He was assaulted again and knocked unconscious for a third time. When he awakened, he was drenched in blood and the cash in his wallet was gone.

Bohanon filed a complaint with the IPD Internal Affairs Division (IAD). The IAD investigation determined that the officers violated several IPD policies, including use of excessive force, use of an inappropriate chokehold, failure to render necessary medical aid, failure to report the matter to the department and failure to contact a supervisor. Both officers were terminated and subsequently charged with felony battery but later acquitted.

The lawsuit and jury trial

Bohanon sued both officers and the City in federal court pursuant to 42 U.S.C. § 1983, [1] alleging excessive force by the officers and an unconstitutional City policy that caused the officer misconduct. Prior to trial, Bohanon settled with the officers, but the case went to trial on the claim against the city.

The trial judge instructed the jury that Bohanon had to prove that the City was deliberately indifferent to the likelihood that its use of force policy would cause off-duty officers to use excessive force after drinking alcohol. The jury returned a verdict against the city for $1,241,500 in damages. However, the judge overturned the verdict and entered judgment for the city. Bohanon filed an appeal with the Seventh Circuit Court of Appeals.

The decision of the Court of Appeals

The Seventh Circuit affirmed the decision of the trial court judge to reject the jury verdict and enter judgement for the City. [2] The court observed that a plaintiff can prevail against a municipality for a constitutional violation only by “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.’” [3]

The court stated that it has recognized three types of municipal situations that can cause constitutional violations:

  1. A formal express unconstitutional policy;
  2. An unconstitutional action (or failure to act) [4] or direct order by an official with final policymaking authority [5];
  3. A widespread unconstitutional practice that is so permanent and well-settled that it constitutes a municipal custom or practice.

The court observed that in cases involving direct orders for a municipal employee to act in an unconstitutional manner or when an express municipal policy is clearly unconstitutional on its face, municipal liability is easily established. However, absent express unconstitutional policies or direct unconstitutional orders, proving municipal liability is not so easy. In the latter situation, proof that the municipality, through its policymakers, acted with “deliberate indifference” is required. Deliberate indifference requires proof “that it was obvious that the municipality’s action [or failure to act] would lead to (cause) constitutional violations and that the municipality consciously disregarded those consequences.” [6]

In the instant matter, the City had a written policy that prohibited off-duty officers who have alcohol in their blood from performing any law enforcement function, except in extreme emergency situations where injury to the officer or another is likely without intervention. Bohanon argued that this extreme emergency exception was the cause of “the ‘highly predictable’ outcome of his assault.” Bohanon claimed that the exception to the prohibition barring officer action, “demonstrates that the City was deliberately indifferent to the obvious risk of …police use of excessive force.”

The court rejected these arguments and observed that establishing municipal deliberate indifference requires proof that the city was on notice that its policy would cause a constitutional deprivation. The court explained that Bohanon provided no evidence that a “similar incident – let alone a pattern of similar incidents – had occurred” in the past. Further, in the absence of “’a prior pattern of similar constitutional violations,’” [7] Bohanon was required to show that the likelihood of a constitutional violation was so high that the city was on notice of and deliberately indifferent to the obvious risk. The court ruled that “Bohanon did not clear this high bar. In the rare cases where we have found this standard to be met, the risks of municipal [deliberate indifference] have been blatantly obvious.”

Fundamentals of municipal liability

  • Suits against municipalities for constitutional violations require proof that the municipality itself through its official policymakers caused a constitutional violation. [8]
  • A municipality cannot be constitutionally liable when only lower-level officers violate civil rights. [9] In the instant case, both parties agreed that the involved officers used excessive force in violation of the Fourth Amendment, but this was not sufficient to trigger municipal liability.
  • Municipal liability can occur through the adoption of a formal unconstitutional policy [10] or delivery of an unconstitutional order or directive from a municipal policymaker [11] that causes a constitutional deprivation.
  • Likewise, municipal liability may flow from an informal unconstitutional policy or custom [12] that results in constitutional harm. For example, an unconstitutional informal practice or custom of conducting warrantless private property searches. [13]
  • In cases involving informal unconstitutional customs or policies and formal policies that are not unconstitutional on their face, proof that a municipal policymaker (e.g., police chief) was deliberately indifferent to the constitutional rights of the plaintiff is required.
  • Deliberate indifference requires proof that a municipal policymaker knew or should have known of the probability that constitutional deprivations would flow from a particular course of action or inaction and took inadequate steps to prevent it. [14]
  • Deliberate indifference may be shown through a pattern of subordinate officer misconduct that went unaddressed or where discipline was inadequate to remedy the problem. [15]
  • In the absence of a pattern of subordinate officer misconduct, deliberate indifference may be established from a police chief’s failure to take action in situations that obviously require it. [16]

References

1. The federal civil rights statute.

2. Bohanon v. City of Indianapolis, (No. 1:16-cv- 02117-JRS-MJD) (7th Cir. 2022).

3. Quoting, Monell v. Dept of Social Services, 436 U.S. 658, 694 (1978).

4. The court also noted that “Inaction can also give rise to liability if it reflects the municipality’s ‘conscious decision not to take action.’” (Quoting, Glisson v. Indiana Dept. of Corr., 849 F.3d 372, 381 (7th Cir. 2017) (en banc).

5. The Supreme Court ruled in City of St. Louis v. Praprotnick, 485 U.S. 112 (1988), that the determination of who in a municipality has final policymaking authority is a matter of state (or local) law. Often final policymaking authority rests with chiefs of police.

6. Quoting, LaPorta v. City of Chicago, 988 F.3d 978, 987 (7th Cir. 2021).

7. Quoting, J.K.J. v. Polk County, 960 F.3d 367, 379 (7th Cir. 2020) (en banc).

8. Monell, supra note 3.

9. Id. In Monell, the Supreme Court specifically rejected the legal liability theory known as Respondeat Superior. This theory, if it had been adopted by the Court, would have permitted municipal liability whenever it could be shown that a lower-level municipal employee violated a person’s constitutional rights.

10. Id.

11. See, Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).

12. See, Monell, supra note 3.

13. See, e.g., Bordanaro v. McCleod, 871 F.2d 1151 (1st Cir. 1989).

14. For example, a police chief who ignores the prior misconduct history of a subordinate officer or inadequately disciplines that officer for prior misconduct, is highly likely to bring constitutional liability upon himself and his municipality when the same officer hurts another person by means of similar misconduct in the future. See e.g., Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989).  

15. Id.

16. For example, a police chief’s failure to provide training in critical areas such as deadly force. See, City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). See also, Zuchel v. City of Denver, 997 F.2d 730 (10th Cir. 1993).

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