On July 9, 2024, the Fifth Circuit Court of Appeals decided Terrell v. Harris County[i], in which the court examined liability of the Sheriff and the County after a deputy allegedly committed sexual assault with a woman he met at an off-duty job.  The relevant facts of Terrell are as follows:

Terrell spent the evening of February 23, 2020, at The Address, a bar in Houston where her cousin works. When she left, “there was visibly and audibly something wrong with her and she was not in her usual state of mind.” At some point, Terrell encountered off-duty HCSO Deputies Hines and Cannon. Hines and Cannon worked side jobs at The Address and were in HCSO uniforms. HCSO policy allows deputies to wear their uniforms and use HCSO equipment and patrol vehicles while working off-duty side jobs.

The deputies ordered Terrell into Hines’s patrol vehicle, telling her they were going to take her home. Terrell initially protested but ultimately got in, believing she was either under arrest or would be arrested if she continued to resist. The complaint contains no allegations as to what happened immediately afterward.

Terrell awoke the next morning at home and felt pain in her vaginal area. She went to the hospital, where a rape kit was administered. A DNA test revealed that semen in her underwear matched Deputy Hines. Terrell had no memory of having sex with him. She later came to suspect that someone had slipped Rohypnol, also known as “roofies,” into her drink at The Address. …

In August 2021, eighteen months after the incident, Hines was charged with sexually assaulting Terrell.[ii]

Sheriff Gonzalez and Harris County were in federal court for violating Terrell’s rights under the Fourth and Fourteenth Amendments based on theories of supervisor liability and failure to train.  The district court granted summary judgment and dismissed the claims against Sheriff Gonzalez and Harris County.[iii]

On appeal, the Fifth Circuit first discussed qualified immunity and stated

Any person whose constitutional rights are violated by an officer acting under color of law may sue that officer for money damages. 42 U.S.C. § 1983. But “[q]ualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a . . . constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). The plaintiff has the burden to show that her claim is not barred by qualified immunity. Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016).[iv]

Thus, for Terrell to defeat Sheriff Gonzales’s motion for qualified immunity, she must satisfy a two-part test.  First, she must show that the defendants violated her constitutional rights.  Second, she must show that the law was clearly established at the time of the incident, such that every reasonable officer would have known that their actions violated the Constitution.  This can be shown with factually similar caselaw or, in rare circumstances, when the conduct is so extreme that it should be obvious to a reasonable officer that it would violate the Constitution.

Was Sheriff Gonzales liable for Deputy Hines’s actions as his supervisor?

The court of appeals then discussed what a plaintiff must prove in order to establish supervisor liability for a subordinate’s actions.  The court stated

Under section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability.” Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (citation omitted). Rather, to establish such liability, a plaintiff must show that: “(1) the [alleged supervisor] failed to supervise or train the officer; (2) a causal connection existed between the failure to supervise or train and the violation of the plaintiff’s rights; and (3) the failure to supervise or train amounted to deliberate indifference to the plaintiff’s constitutional rights.” Id.[v]

Simply put, Terrell must show that the sheriff (1) failed to supervise Hines, (2) that failure to supervise, in effect, caused Hines to violate Terrell’s rights, and (3) that the sheriff knew of propensity on the part of Hine’s to commit that type of violation based on a pattern of similar violations and was deliberately indifferent to the likelihood of a future constitutional violation.

To establish the three requirements above, Terrell first asserted that Hines had been previously arrested for sexual assault of a child in 2018.  That criminal charge received a “no-bill” from the grand jury, and the case was dismissed.  Terrell alleged that the sheriff failed to conduct an internal investigation or discipline Hines or other officers when criminal charges are later dismissed.  However, this was the only case cited by Terrell.  The court stated

Terrell’s allegations must allow us to reasonably infer “a pattern of similar violations arising from [supervision] that is so clearly inadequate as to be obviously likely to result in a constitutional violation.” Id. She alleges one related incident, not a pattern.[vi]

The court stated that a single incident can only show deliberate indifference in rare instances when

[T]he highly predictable consequence of a failure to [supervise] would result in the specific injury suffered, and that the failure to [supervise] represented the moving force behind the constitutional violation.” Id. at 295. To be “highly predictable,” an outcome must be “so predictable that” the failure to supervise or discipline “amounted to conscious disregard for” the plaintiff’s rights. Connick v. Thompson, 563 U.S. 51, 71, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011)[vii]

The court of appeals stated that, because Hines’ previous criminal case received a “no-bill” from a grand jury and the charge was dismissed, it is not reasonable to infer that Terrell’s assault “was a highly predictable consequence” of the sheriff’s alleged “failure to investigate Hines” in that incident.

Was Harris County liable for failing to properly train Hines?

Claims against cities and counties are called Monell claims.  The court of appeals stated

To sustain a § 1983 claim against a municipality—a “Monell claim”—a plaintiff must show that a policymaker can be charged with knowledge of a policy, custom, or practice that was the moving force in her injury. Hutcheson, 994 F.3d at 482. A custom or practice is a pattern “so persistent and widespread as to practically have the force of law.” Peña v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018) (quoting Connick, 563 U.S. at 61). The plaintiff cannot rely solely on the incident that resulted in her injury to demonstrate such a pattern. Id.[viii]

To establish the required “custom, policy or practice” the plaintiff must show that there was a pattern of similar conduct that was “persistent and widespread.”  Here, Terrell argued that her allegation that Hines and another deputy forced her to get in Hines’s patrol car, and that Hines subsequently sexually assaulted her, should be sufficient to show that the sheriff had a custom of failing to train policy because the incident involved outrageous conduct.  However, the court of appeals stated that “a single incident simply cannot demonstrate a widespread pattern.”[ix]

Terrell also reiterated her previous argument regarding the sheriff’s failure to investigate, but the court of appeals stated that this argument fails for the same reason previously discussed, which is that Terrell failed to show a pattern of similar conduct.

Therefore, the court of appeals affirmed decision of district court to grant summary judgment in favor of the sheriff and the county and the dismissal of the case.

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.

____________________________________________________________________________

Citations

[i] No. 23-20281 (5th Cir. July 9, 2024)

[ii] Id. at 2-3

[iii] The claim against Hines was dismissed by Terrell.  Deputy Cannon was granted qualified immunity.

[iv] Id. at 4 (emphasis added)

[v] Id. at 7 (emphasis added)

[vi] Id. at 8 (emphasis added)

[vii] Id.

[viii] Id. at 9 (emphasis added)

[ix] Id.