On July 8, 2024, the Fifth Circuit Court of Appeals decided Verastique v. City of Dallas[i], in which the court examined whether the City of Dallas was liable for the actions of their officers during riots and mass arrests that occurred in 2020. The relevant facts of Verastique are as follows:
In 2020, major metropolitan areas were consumed by demonstrations following the release of a video depicting the well-known George Floyd incident in Minneapolis. Texas was not spared: Some of its cities suffered, inter alia, “widespread [and] severe damage, injury, and property loss.” In Dallas, demonstrations ultimately devolved into “several days of riots, destruction of property, and assaults on police.”
“[I]ndividuals[,] bent on rioting and looting[,]” “rov[ed] throughout the downtown area,” and “[d]estruction quickly followed as [they] began damaging businesses, police vehicles, and starting fires.” After Action Report at 10, 19. Agitators, ignoring orders to disperse, “began inciting the crowd to confront officers.” Id. at 12. Numerous stores—including “[t]wo [f]irearm businesses”—were looted and burglarized. Id. Rioters jumped onto police vehicles and threw “various objects including bricks and rocks at officers.” Id. at 10. Swarms of rioters commandeered I-35E, “forcing motorists to swerve in order to avoid striking pedestrians and eventually stopping traffic.” Id.
All told, the riots inflicted extreme economic harm on Dallas—with one initial damage estimate ascertaining “over five million dollars of property destruction . . . in the central business district alone.” Id. at 7.
B. Plaintiffs Participate in the Dallas Demonstrations
Verastique and Morse, two participants, joined a crowd of demonstrators marching somewhere on or alongside Reunion Boulevard. As the crowd approached I-35E, Verastique and Morse allegedly saw “a [b]lack woman on the ground crying out in pain.” They further claim that officers from the Dallas Police Department (“DPD”) began arresting demonstrators who had “helped th[at] [b]lack woman to her feet.”
Verastique and Morse responded by approaching, and engaging with, those officers—allegedly in an “attempt[] to explain to the officers that the [demonstrators] had not committed any crime[s].” That prompted one of the officers—Roger Rudloff—to order Verastique to “stop and place her hands in the air.” Allegedly, she “immediately complied and remained a lawful peaceful protestor.” She was arrested by Rudloff after being subdued with a less-than-lethal PepperBall round. Rudloff then ordered Morse to the ground and arrested her as well.
While Rudloff was effecting Verastique’s and Morse’s arrests, Nevills approached. Nevills alleges that, running toward the three individuals, he was “hoping to render aid” to Verastique. Nevills was then subdued with PepperBall rounds and arrested.
Little and Baker participated in demonstrations occurring in another part of Dallas. They ended up in a parking garage after tear gas was deployed to disperse the crowds. They allege that DPD officers prevented them from leaving. After repeatedly asking for the officers’ names and badge numbers, they further allege they were roughed up and arrested.
Baker was released from custody shortly thereafter on account of the alleged injuries. The other plaintiffs spent one night in jail. All were charged with various criminal offenses initially, though all charges were dropped approximately two weeks later.[ii]
The plaintiffs filed suit in federal court under § 1983 and alleged that the City of Dallas, Dallas County and the Dallas County Sheriff’s Office violated their constitutional rights. The district court dismissed all claims because the plaintiffs did not state adequate claims. The plaintiff’s appealed the dismissal of their claims that only pertained to the City of Dallas.
The plaintiffs first claim on appeal was that the city should be liable because they failed to discipline officers for misconduct. It should be noted that a Monell claim is claim against a municipality or county. [NOTE: The second claim for having a policy that is unconstitutional on its face will be discussed in Part II.]
Failure to Discipline:
The Fifth Circuit Court of Appeals examined the requirements of a failure to discipline claim and stated
[T]o plead a Monell claim in the context of a failure-to-discipline claim, plaintiffs must show (1) that the city’s failure to discipline amounted to deliberate indifference and (2) a causal link between the failure to discipline and the violation of their rights. See Armstrong, 60 F.4th at 277. So, to survive dismissal, plaintiffs must cite sufficiently numerous prior incidents, each of which includes specific facts that are sufficiently similar to those alleged here. See Johnson, 83 F.4th at 946-47; see also Armstrong, 60 F.4th at 276.[iii]
In order to show deliberate indifference, the plaintiffs must show a persistent and widespread pattern or practice of valid complaints where the city failed to discipline officers or take other corrective action. Additionally, the pattern must be of a similar type of conduct to the conduct for which the city is presently being sued.
The plaintiffs provided a list of nineteen incidents involving one officer. The court of appeals stated
Though the complaint lists nineteen incidents involving one officer, those incidents do not constitute “any pattern of conduct—much less a pattern of similar violations.” Most are conclusory and devoid of critical factual enhancement. What scant factual details plaintiffs provide affirmatively proves that all nineteen incidents are wholly [inappropriate] to the case at hand.[iv]
The court noted that eight of the nineteen contain were “patently incapable” of establishing a pattern of conduct and would not be considered on appeal. Of the remaining eleven, the court of appeals referred to them as a “hodge-podge of unrelated allegations” that are factually dissimilar to what occurred in the plaintiffs’ cases. As such, the court of appeals stated that the nineteen incidents provided by the plaintiffs “lack similarity and specificity” to the case at hand and “do not point to the specific violation in question.”[v] Therefore, the plaintiffs failed to establish a pattern of constitutional violations.
Deliberate Indifference:
The court then noted that, even if the plaintiffs were able to show a sufficient pattern of constitutional violations, they still failed to show that the city was deliberately indifferent to the rights of its citizens.
The nineteen incidents that the plaintiffs asserted established a pattern of unconstitutional conduct, as well as deliberate indifference to such conduct, spanned the twenty-three-year career of one of the involved officers. The court noted that, of the nineteen incidents, the officer was only disciplined five times. The plaintiffs also assert that, in the five complaints that were sustained, the city also “showered [the officer] with praise,” which established that the city was “constructively aware,” and deliberately indifferent to, a widespread pattern of unconstitutional conduct. However, the court of appeals was not persuaded by the plaintiffs’ assertions.
The court of appeals also stated that nineteen incidents over twenty-three years was an insufficient number to “create a pattern capable of providing constructive notice.”[vi] Specifically, the court of appeals stated
Given a constant number of incidents, a longer time span yields a lower rate of violations—militating against constructive notice. Nineteen allegations over the span of twenty-three years yields a mere annualized incident rate of 0.826. In other words: Plaintiffs—at most—show that, for over two decades, [the officer], on average, received fewer than one accusation of misconduct per year.
Further cutting against plaintiffs’ claim of a consistent pattern of failed discipline are the factors our caselaw has identified as “relevant to determining whether a series of incidents can be called a pattern,” Peterson, 588 F.3d at 851-52 (citing Pineda v. City of Houston, 291 F.3d 325, 329 (5th Cir. 2002)). Those factors—such as department size and number of arrests—provide the context necessary to evaluate whether an alleged department-wide pattern is so obvious as to impart constructive notice. See id. at 851.
Absent those contextual factors, it is impossible to identify the existence of a pattern—much less one that imparts constructive notice. Given a constant number of incidents, the percentage of conduct supporting a pattern of illegality shrinks as the size of the police department or the number of arrests increases.
Accordingly, depending on context, an identical number of incidents can strongly support—or render “truly uncompelling”—an inference of a pattern of illegality. Pineda, 291 F.3d at 329. [vii]
The court also discussed that they had previously held that the size of the department and number of arrests made in relation to number of complaints were relevant factors consider in determining whether a pattern of conduct that can show deliberate indifferent is present.[viii] The court of appeals then noted that the plaintiffs failed to put the number of alleged incidents in the context of size of the City of Dallas Police Department or the number of arrests made by the department.
As such, the court held that, because the nineteen incidents were “not sufficiently similar, specific or numerous” enough to establish a pattern of unconstitutional conduct nor deliberate indifference, the district court properly dismissed the plaintiffs’ claim for failure to discipline.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 23-10395 (5th Cir. July 8, 2024)
[ii] Id. at 2-5
[iii] Id. at 6-7 (emphasis added)
[iv] Id. at 7
[v] Id. at 9
[vi] Id. at 11
[vii] Id. at 11-12 (emphasis added)
[viii] See Pineda v. City of Houston, 291 F.3d 325 (5th Cir. 2002)
