                                                                          FILED
                                                              United States Court of Appeals
                                    PUBLISH                           Tenth Circuit

                   UNITED STATES COURT OF APPEALS                     June 5, 2013

                                                                  Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                       Clerk of Court


MISTI LEE SCHNEIDER,

            Plaintiff-Appellant/
            Cross-Appellee,

v.                                                Nos. 12-1086 & 12-1115

THE CITY OF GRAND JUNCTION
POLICE DEPARTMENT, an agency of
the City of Grand Junction; BILL
GARDNER; JOHN CAMPER;
WILLIAM D. BAKER; JOHN A. ZEN;
RICK DYER,

            Defendants-Appellees/
            Cross-Appellants,

and

JOHN AND JANE DOES, 3-10, in their
official and individual capacities,

            Defendants.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF COLORADO
                  (D.C. No. 1:10-CV-01719-MSK-KLM)


Clayton E. Wire (Elizabeth A. Starrs and Elizabeth L. “Booka” Smith with him on
the brief), of Starrs Mihm LLP, Denver, Colorado, for Plaintiff-Appellant/Cross-
Appellee.

Thomas S. Rice (Monica N. Kovaci with him on the brief), of Senter Goldfarb &
Rice, L.L.C., Denver, Colorado, for Defendants-Appellees/Cross-Appellants.
Before KELLY, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and
MATHESON, Circuit Judge.


MATHESON, Circuit Judge.


      Plaintiff Misti Lee Schneider alleged in her complaint that Glenn Coyne, a

Grand Junction Police Department (“GJPD”) officer, responded to her 911 call about

an altercation with her teenage son and, during a visit to her home late the next night,

raped her. Shortly thereafter, Officer Coyne was arrested and fired, and a few days

later committed suicide.

      Ms. Schneider sued Officer Coyne’s supervisors and the GJPD under

42 U.S.C. § 1983, alleging violation of her substantive due process right to bodily

integrity. She alleged that inadequate hiring and training of Officer Coyne,

inadequate investigation of a prior sexual assault complaint against him, and

inadequate discipline and supervision of him caused her to be raped.

      In district court, the defendants did not contest Ms. Schneider’s allegations

about Officer Coyne’s conduct. They moved for summary judgment on the grounds

that Officer Coyne did not act under color of state law and that Ms. Schneider could

not prove, as § 1983 law requires, that they caused the rape or were deliberately

indifferent to the risk that it would happen.

      The district court denied summary judgment on the first ground, holding that a

reasonable jury could conclude that Officer Coyne acted under color of state law. It

                                          -2-
granted summary judgment on the second ground, concluding that Ms. Schneider

could not prove essential facts to establish § 1983 liability. She appeals that ruling.

The defendants cross-appeal the color of state law ruling.

        The events alleged in this case are tragic, and Officer Coyne’s alleged conduct

was a terrible crime. The state cannot prosecute Officer Coyne because he is dead,

and Ms. Schneider is left with suing his supervisors and employer. As explained

below, to hold them liable for Officer Coyne’s actions, she faces stringent proof

requirements under § 1983 law, proof she is unable to muster. Although the police

department’s handling of Officer Coyne could and should have been better, we are

bound to follow the law, apply it to the evidentiary record before us, and affirm the

district court.

       Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

decision in Ms. Schneider’s appeal (No. 12-1086), and we dismiss the defendants’

cross-appeal (No. 12-1115) as moot.

                                 I.     BACKGROUND

                                      A. Factual History

       We construe the facts underlying the grant of summary judgment in the light

most favorable to Ms. Schneider as the non-moving party, Ribeau v. Katt, 681 F.3d

1190, 1194 (10th Cir. 2012), and recount those facts as follows.




                                            -3-
1. Officer Coyne’s Response to Ms. Schneider’s 911 Call

       In the early evening of September 27, 2009, Ms. Schneider called 911 to report

an altercation with her teenage son. Officer Coyne and another officer responded

around 7:00 p.m. While at Ms. Schneider’s home, they discovered that her son was

making and detonating bombs and recording the explosions on his cell phone.

Officer Coyne explained to Ms. Schneider that, far from a slap on the wrist for a

teenage prank, her son could be facing very serious charges. Had her son been an

adult, he said, the seriousness of his offense would be a class 4, falling somewhere

between Charles Manson as a class 1 and the head of a methamphetamine ring as a

class 6. Officer Coyne returned to the station, but he came back to Ms. Schneider’s

house two more times that night — first, at around 11:00 p.m., to collect more

evidence; and second, around midnight, to return some property (his shift schedule

was from 3:00 p.m. until 1:00 a.m.).

       The next day, September 28, Officer Coyne called Ms. Schneider with some

questions for his investigation. She asked him to update her on the case, telling him

that she was very concerned. Officer Coyne said he was aware that she was having

issues with her son, and he offered to stop by and check on him later. Ms. Schneider

accepted the offer. She and Officer Coyne exchanged calls multiple times throughout

the day, and she spoke with him once more in an after-dinner conversation about her

son.




                                         -4-
2. Officer Coyne’s Rape of Ms. Schneider

      Although Officer Coyne was scheduled to work until 1:00 a.m. on

September 29, he signed off-duty at 11:49 p.m. on September 28. He then went to

Ms. Schneider’s house.1 She was awake and packing for a move; the doors were

unlocked and open. Wearing a sweatshirt with his uniform pants and boots, but not

wearing a badge or carrying a weapon, Officer Coyne entered the house without

knocking or asking permission. He startled Ms. Schneider because she was not

expecting him to visit that night. He began talking with her about her son and the

case investigation.

      Then Officer Coyne made the conversation more personal, mentioning her

estranged husband. Further, he made remarks to the effect of “‘you never want to

talk about the police because they have so many connections’ or ‘know so many

people,’” Aplt. App., Vol. 3 at 307, and “how he was ‘doing [Ms. Schneider’s] son a




      1
        Ms. Schneider contends there is a genuine issue of material fact as to whether
Officer Coyne was on-duty or off-duty when the rape occurred because he was
scheduled to work until 1:00 a.m. on September 29 and his time sheet reflects that he
was paid for that time. But GJPD’s unit log for Officer Coyne shows that he signed
off-duty at 11:49 p.m. on September 28. Officer Coyne’s supervisor, Sergeant
William Baker, testified that Officer Coyne asked to leave an hour early to go home
and get more sleep before he left on vacation. The sergeant granted the request
because Officer Coyne had worked an extra hour earlier in the week. Further, when
Officer Coyne arrived at Ms. Schneider’s home, he was not in full uniform, not
wearing a badge, and not carrying a weapon. Even viewing the facts in the light most
favorable to Ms. Schneider, we cannot conclude that a reasonable jury could find that
Officer Coyne was on-duty after 11:49 p.m. on September 28.

                                        -5-
favor,’ or ‘doing [her] a favor with [her] son,’” id. at 308.2 He next overpowered

Ms. Schneider and raped her multiple times. Before leaving, he told her, “‘[N]obody

can know about this. My wife can’t know about this. You do not want to mess with

my life.’” Id. at 310. Ms. Schneider interpreted these remarks as a threat of

retaliation, either against her or through her son’s case.

      Despite feeling threatened, Ms. Schneider reported the rape later that same

day. The Mesa County Sheriff’s Office (“MCSO”) began an investigation, and a

medical examination corroborated that she had suffered trauma. Officer Coyne was

arrested on October 1, 2009, and his employment with GJPD was terminated. He

was released on bond, and within days he committed suicide.

3. Previous Complaints Against Officer Coyne for Sexual Assault

      The attack on Ms. Schneider was the third incident in which Officer Coyne

was alleged to have had improper sexual contact with a woman whom he met while

working in law enforcement. One complaint was known to GJPD before the attack

on Ms. Schneider, but the other was not.

      a. The January 10, 2007 A.L. Complaint

      The complaint that was unknown to GJPD concerned Officer Coyne’s actions

when he was working for MCSO and just before he started working for GJPD. On


      2
        The defendants contend that Officer Coyne’s statements, as reported by
Ms. Schneider, are inadmissible hearsay. We disagree. The statements are not
hearsay because they are not offered for the truth of the matter asserted. See Fed. R.
Evid. 801(c) (defining hearsay).

                                           -6-
January 10, 2007, A.L.3 complained to MCSO that on January 8, 2007, Officer Coyne

sexually abused her during a nighttime drug raid at her house. The written report of

A.L.’s complaint states that all of the men in the house were arrested, but A.L. and

her mother were not. During these events, Officer Coyne searched A.L. three times.

The first two times were pat-downs, during which Officer Coyne rubbed and groped

A.L. in her crotch area. A.L. lifted her blouse to avoid her breasts being touched.

The third time, A.L. was in her bedroom. Officer Coyne came in alone, said he

wanted to search her again, and told her to pull down her pants and underwear. Then

another officer came in and told Officer Coyne it was time to go.

      GJPD learned about A.L.’s complaint only after the assault on Ms. Schneider.

GJPD’s hiring background check on Officer Coyne was completed in December 2006

and was not updated through his January 15, 2007 start date. The A.L. incident

occurred during this interim period. No one at MCSO informed GJPD about A.L.’s

complaint until after Ms. Schneider reported her assault on September 29, 2009.

      b. The December 28, 2008 V.W. Complaint

      The complaint that was known to GJPD occurred nearly two years into Officer

Coyne’s employment at GJPD. V.W. reported on December 28, 2008, that she had

met Officer Coyne when she sought police assistance in November 2008 because she

was intoxicated and hallucinating. She contacted him on December 19 and agreed to


      3
       We have chosen not to use the full names of the nonparties to this case who
complained about Officer Coyne.

                                         -7-
his suggestion that he visit her at home when he was off-duty. He came to her home

on that same day. They engaged in consensual sex, but he allegedly took the

encounter beyond her consent and sexually assaulted her.

      After receiving V.W.’s complaint, GJPD put Officer Coyne on administrative

leave. MCSO conducted a criminal investigation. The district attorney declined to

bring charges because the evidence was equivocal. According to the deputy district

attorney, V.W. was not a reliable witness, she admitted that the encounter began

consensually, and the medical evidence was inconclusive. Further, in addition to

asserting that all the activities were consensual, Officer Coyne passed a polygraph

test to that effect. GJPD subsequently conducted an internal investigation, which was

kept confidential. As a result of the internal investigation, which also determined

that proof of sexual assault was inconclusive, Police Chief William Gardner placed

Officer Coyne on probation for at least six months and cut his pay, and Deputy Chief

John Zen issued him a written notice of discipline.

      After the V.W. investigation, Officer Coyne was transferred to a new

supervisor, Sergeant William Baker, who was told that Officer Coyne was on

probation. When Sergeant Baker asked his commander why Officer Coyne had been

on administrative leave, he was told that the matter was confidential pursuant to

GJPD policy. In light of the policy, Sergeant Baker did not inquire further. He

therefore had no knowledge of V.W.’s complaint. He stated in an affidavit filed in




                                         -8-
this litigation that he supervised Officer Coyne in the same manner as the other

officers assigned to report to him.

      Officer Coyne was still on probation at the time he met Ms. Schneider.

                                 B. Procedural History

      Ms. Schneider sued GJPD for municipal liability and several GJPD officials in

their individual capacities for how they discharged their superintendent

responsibilities. The individual defendants were Chief Gardner, who was the police

chief until the beginning of September 2009; John Camper, who became the interim

police chief upon Chief Gardner’s departure; Deputy Chief Zen; Sergeant Baker, who

was Officer Coyne’s direct supervisor at the time of the rape; and Rick Dyer, GJPD’s

Professional Standards Administrator (“PSA”). Ms. Schneider alleged that various

combinations of the defendants were liable for inadequate hiring, training,

investigation of the V.W. complaint, discipline, and supervision.

      The defendants moved for summary judgment. They argued that (1) Officer

Coyne had not acted under color of state law; (2) the individual defendants were

entitled to qualified immunity; (3) Ms. Schneider could not prove that any of the

individual defendants caused Officer Coyne’s conduct and/or acted with deliberate

indifference to the risk of what happened to her; and (4) the City was not liable

because Ms. Schneider could not prove her claims against the individual defendants,

the City had no policy or custom that was the moving force behind Ms. Schneider’s




                                         -9-
injury, and the City did not act with deliberate indifference. Ms. Schneider

responded in opposition, submitting numerous exhibits.

      The district court concluded that Ms. Schneider’s evidence created a genuine

issue of material fact as to whether Officer Coyne acted under color of state law, and

denied the defendants’ request for summary judgment on that ground. The court

nonetheless held that the defendants were entitled to summary judgment. It

identified two primary issues: (1) causation, and (2) the required culpable state of

mind of deliberate indifference for a substantive due process bodily integrity claim.

Analyzing each of Ms. Schneider’s five claims, the court concluded she had

insufficient evidence to show that the alleged inadequacies caused the rape and/or

that the individual defendants or the City were deliberately indifferent to the risk of

Officer Coyne’s committing a rape. Accordingly, the district court granted summary

judgment to all of the defendants.

      Ms. Schneider appealed. The defendants cross-appealed on the color of state

law issue.

                                     II. DISCUSSION

      This court reviews a grant of summary judgment de novo, viewing the

evidence in the light most favorable to Ms. Schneider. See Ribeau, 681 F.3d at 1194.

“‘The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A fact is material if, under the


                                         - 10 -
governing law, it could have an effect on the outcome of the lawsuit. A dispute over

a material fact is genuine if a rational jury could find in favor of the nonmoving party

on the evidence presented.” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir.

2013) (internal quotation marks omitted).

      “[T]he burden on the moving party may be discharged by ‘showing’---that is,

pointing out to the district court---that there is an absence of evidence to support the

nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “[A]

party opposing a properly supported motion for summary judgment may not rest upon

the mere allegations or denials of his pleading, but must set forth specific facts

showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (alteration and internal quotation marks omitted); see also

Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998) (“If the movant carries

this initial burden, the non-movant may not rest upon its pleadings, but must set forth

specific facts showing a genuine issue for trial as to those dispositive matters for

which it carries the burden of proof.” (internal quotation marks omitted)).

                        A. Ms. Schneider’s Appeal, No. 12-1086

1. Legal Standards for Individual and Municipal Liability

      a. Individual Liability

      The individual defendants were Officer Coyne’s supervisors. We have

referred to claims against supervisors as based on “supervisory liability,” see, e.g.,

Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988), though this label can be


                                          - 11 -
misunderstood as implying vicarious liability. “Section 1983 does not authorize

liability under a theory of respondeat superior.” Brown v. Montoya, 662 F.3d 1152,

1164 (10th Cir. 2011).4 For this reason, the Supreme Court has suggested the term

“supervisory liability” is “a misnomer.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).

“Absent vicarious liability, each Government official, his or her title notwithstanding,

is only liable for his or her own misconduct.” Id.

      The plaintiff therefore must show an “affirmative link” between the supervisor

and the constitutional violation. Dodds v. Richardson, 614 F.3d 1185, 1195

(10th Cir. 2010). This requires, for example, more than “a supervisor’s mere

knowledge of his subordinate’s” conduct. See Iqbal, 556 U.S. at 677. This notion is

embodied in the three elements required to establish a successful § 1983 claim

against a defendant based on his or her supervisory responsibilities: (1) personal

involvement; (2) causation, and (3) state of mind. As we explained in Dodds:

      [T]he plaintiff must demonstrate an affirmative link between the
      supervisor and the violation[.] Over time, this “affirmative link”
      requirement came to have three related prongs: (1) personal
      involvement; (2) sufficient causal connection, and (3) culpable state of
      mind.

614 F.3d at 1195 (quotations omitted). We discuss each of these elements in turn.




      4
        This opinion discusses three cases that properly can be short-cited as
“Brown.” To avoid confusion, we reserve “Brown” for the Supreme Court case
discussed later in this opinion, Board of County Commissioners v. Brown, 520 U.S.
397 (1997).

                                         - 12 -
              i. Personal involvement

       “Individual liability under § 1983 must be based on [the defendant’s] personal

involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d

1416, 1423 (10th Cir. 1997). Before the Supreme Court’s decision in Iqbal, this

circuit allowed a plaintiff to establish personal involvement in several ways, for

example, “by demonstrating [a defendant’s] personal participation, his exercise of

control or direction, or his failure to supervise.” Dodds, 614 F.3d at 1195 (internal

quotation marks omitted). “A defendant supervisor’s promulgation, creation,

implementation, or utilization of a policy that caused a deprivation of plaintiff’s

rights also could have constituted sufficient personal involvement.” Id. (citing

Meade, 841 F.2d at 1528).

       Iqbal, however, articulated a stricter liability standard for this first element of

personal involvement. See Dodds, 614 F.3d at 1199. In Iqbal, the Supreme Court

explained that “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a

plaintiff must plead that each Government-official defendant, through the official’s

own individual actions, has violated the Constitution.” 556 U.S. at 676.

       “[W]e have not yet had occasion to determine what allegations of personal

involvement . . . meet Iqbal’s stricter liability standard.” Dodds, 614 F.3d at 1199.

We have discussed this question in several recent cases. See Wilson v. Montano, __

F.3d __, No. 12-2051, 2013 WL 1848138, at *6-*8 (10th Cir. May 3, 2013); Keith v.

Koerner, 707 F.3d 1185, 1188 (10th Cir. 2013); Brown v. Montoya, 662 F.3d at


                                           - 13 -
1164-66; Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010); Dodds, 614 F.3d at

1198-1201.

       None of those cases, however, presented us with the occasion to address the

precise contours of this standard. And neither does this case. None of the claims

against the individual defendants turns on the question of personal involvement. The

district court’s summary judgment conclusions were based on the second and third

elements, causation and state of mind, and the parties’ arguments also are focused on

these latter elements. We therefore assume without deciding that Ms. Schneider has

presented sufficient evidence of the individual defendants’ personal involvement

under Iqbal’s stricter liability standard.

              ii. Causation

       The second element requires the plaintiff to show that the defendant’s alleged

action(s) caused the constitutional violation. As we said in Dodds, nothing in Iqbal

“altered the Supreme Court's previously enunciated § 1983 causation . . . analysis.”

Dodds, 614 F.3d at 1200. “A plaintiff [must] establish the ‘requisite causal

connection’ by showing ‘the defendant set in motion a series of events that the

defendant knew or reasonably should have known would cause others to deprive the

plaintiff of her constitutional rights.” Id. at 1185 (quoting Poolaw v. Marcantel,

565 F.3d 721, 732-33 (10th Cir. 2009)); see also Starr v. Baca, 652 F.3d 1202, 1218

(9th Cir. 2011) (“The requisite causal connection can be established [] by setting in

motion a series of acts by others which the actor knows or reasonably should know


                                             - 14 -
would cause others to inflict the constitutional injury.” (internal quotation marks

omitted)), cert. denied, 132 S. Ct. 2101 (2012).

      For example, in Poolaw, a plaintiff brought a § 1983 claim against two police

supervisors involving a police search of the plaintiff’s home. 565 F.3d at 726-27.

We determined that the search was not supported by probable cause and therefore

violated plaintiff’s Fourth Amendment rights. Id. at 732. The police supervisors

were not present during the search, but they ordered the search and swore out the

affidavit in support of the search warrant. Id. at 733. We concluded that the

supervisors’ actions “set in motion a series of events” they reasonably should have

known would result in the search. Id. The plaintiff therefore satisfied the causation

element for summary judgment purposes. Id.

             iii. State of mind

      The third element requires the plaintiff to show that the defendant took the

alleged actions with the requisite state of mind. Precisely what state of mind is

required for individual liability depends on the type of claim a plaintiff brings. See

Iqbal, 556 U.S. at 676; Dodds, 614 F.3d at 1204-05. Ms. Schneider asserts a

violation of her right to bodily integrity, which is a substantive-due-process claim.

See Abeyta ex rel. Martinez v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253,

1255 (10th Cir. 1996). In the district court, the parties agreed that the applicable

state of mind for a substantive due process claim is deliberate indifference, and the

district court employed that standard.


                                         - 15 -
      On appeal, no one challenges the use of the deliberate-indifference standard.

We therefore assume without deciding that deliberate indifference is the applicable

state of mind. This is consistent with our approach in Dodds, which also concerned a

substantive due process § 1983 claim, where we declined to consider whether

deliberate indifference was the correct standard because neither party challenged the

district court’s use of that standard. 614 F.3d at 1205. We assumed without

deciding, as we do here, that deliberate indifference is the standard for a claim of

violation of substantive due process. Id.

      “‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that

a municipal actor disregarded a known or obvious consequence of his action.” Bd. of

Cnty. Comm’rs v. Brown, 520 U.S. 397, 410 (1997). Deliberate indifference can be

satisfied by evidence showing that the defendant “knowingly created a substantial

risk of constitutional injury.” Dodds, 614 F.3d at 1206. “[A] local government

policymaker is deliberately indifferent when he deliberately or consciously fails to

act when presented with an obvious risk of constitutional harm which will almost

inevitably result in constitutional injury of the type experienced by the plaintiff.”

Hollingsworth v. Hill, 110 F.3d 733, 745 (10th Cir. 1997) (internal quotation marks

omitted).

      b. Municipal Liability

      In contrast to individual supervisor liability, we have explained that nothing in

Iqbal changed the “longstanding interpretation” of § 1983’s standards for imposing


                                          - 16 -
municipal liability. Dodds, 614 F.3d at 1202. That interpretation dates back to

Monell v. Department of Social Services, 436 U.S. 658, 691-92, 694 (1978), which

held that a plaintiff must identify “a government’s policy or custom” that caused the

injury. In later cases, the Supreme Court required a plaintiff to show that the policy

was enacted or maintained with deliberate indifference to an almost inevitable

constitutional injury. See Brown, 520 U.S. at 403; see also City of Canton v. Harris,

489 U.S. 378, 389 (1989). We briefly discuss each of the three elements: (1) official

policy or custom, (2) causation, and (3) state of mind.

             i. Official policy or custom

      In Monell, the Supreme Court stated that “Congress did not intend

municipalities to be held liable unless action pursuant to official municipal policy of

some nature caused a constitutional tort.” 436 U.S. at 691. “[I]t is when 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, inflicts the injury

that the government as an entity is responsible under § 1983.” Id. at 694.

      “The ‘official policy’ requirement was intended to distinguish acts of the

municipality from acts of employees of the municipality, and thereby make clear that

municipal liability is limited to action for which the municipality is actually

responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986). A

challenged practice may be deemed an official policy or custom for § 1983

municipal-liability purposes if it is a formally promulgated policy, a well-settled


                                          - 17 -
custom or practice, a final decision by a municipal policymaker, or deliberately

indifferent training or supervision. See Martin A. Schwartz, Section 1983 Litigation

Claims & Defenses, § 7.06[A] (2013), available at Westlaw SNETLCD.

       As with the personal involvement element of the claims against the individual

defendants, we do not rely on the element of a municipal policy or custom to resolve

Ms. Schneider’s claims against the City. The district court assumed without deciding

that this element was met, and based its summary judgment decisions in favor of the

City on the second and/or third elements – causation and state of mind. We similarly

assume without deciding that Ms. Schneider has presented sufficient evidence of a

municipal policy or custom for her claims against the City.

              ii. Causation

       To establish the causation element, the challenged policy or practice must be

“closely related to the violation of the plaintiff’s federally protected right.”

Schwartz, at § 7.12[B]. This requirement is satisfied if the plaintiff shows that “the

municipality was the ‘moving force’ behind the injury alleged.” Brown, 520 U.S. at

404.

       Ms. Schneider must therefore “demonstrate a direct causal link between the

municipal action and the deprivation of federal rights.” Id. As with so-called

supervisory liability discussed above, municipal liability in a § 1983 case cannot be

established on a theory of vicarious liability. “Where a plaintiff claims that the

municipality has not directly inflicted an injury, but nonetheless has caused an


                                          - 18 -
employee to do so, rigorous standards of culpability and causation must be applied to

ensure that the municipality is not held liable solely for the actions of its employee.”

Id. at 405. “The causation element is applied with especial rigor when the municipal

policy or practice is itself not unconstitutional, for example, when the municipal

liability claim is based upon inadequate training, supervision, and deficiencies in

hiring.” Schwartz, at § 7.12.

             iii. State of mind

      “[A] plaintiff seeking to establish municipal liability on the theory that a

facially lawful municipal action has led an employee to violate a plaintiff’s rights

must demonstrate that the municipal action was taken with ‘deliberate indifference’

as to its known or obvious consequences.” Brown, 520 U.S. at 407; see also City of

Canton, 489 U.S. at 389.

          The deliberate indifference standard may be satisfied when the
          municipality has actual or constructive notice that its action or
          failure to act is substantially certain to result in a constitutional
          violation, and it consciously or deliberately chooses to disregard
          the risk of harm. In most instances, notice can be established by
          proving the existence of a pattern of tortious conduct. In a
          narrow range of circumstances, however, deliberate indifference
          may be found absent a pattern of unconstitutional behavior if a
          violation of federal rights is a highly predictable or plainly
          obvious consequence of a municipality’s action or inaction[.]

Barney, 143 F.3d at 1307 (citations and internal quotation marks omitted).5


      5
        In the present case, the state-of-mind element is deliberate indifference for
both the individual defendants and the City. This may not always be the case. For
individual defendants, the applicable state of mind will depend on the type of
                                                                             (continued)
                                          - 19 -
2. Analysis of Ms. Schneider’s Claims

      Ms. Schneider alleged inadequacies in hiring, training, investigating the V.W.

complaint, discipline, and supervision. We address each claim in turn, keeping in

mind that we assume for the sake of discussion that the individual defendants all

meet the post-Iqbal personal involvement element for liability.

      a. Hiring

      Ms. Schneider asserted her hiring claim against PSA Dyer and the City,

arguing that Officer Coyne would not have been hired had there been an adequate

background investigation.6 She identified two deficiencies.

      First, she complained that the background investigation was completed and

submitted in December 2006 and did not continue through Officer Coyne’s January

15, 2007 start date with GJPD. If it had continued, PSA Dyer would have discovered

the A.L. complaint. Chief Gardner made the ultimate hiring decision, and he testified




constitutional violation at issue. See Iqbal, 556 U.S. at 676; Dodds, 614 F.3d at
1204-05; Schwartz, at § 6.02[A]. In contrast, the prevailing state-of-mind standard
for a municipality is deliberate indifference regardless of the nature of the underlying
constitutional violation. See Schwartz, at § 6.02[C] (“Since the decision in City of
Canton [adopted deliberate indifference for training claims], deliberate indifference
has become the prevailing standard for other types of municipal liability claims as
well . . . . [W]hen a § 1983 claimant seeks to impose municipal liability she must
normally show deliberate indifference.”); id. at § 7.07 (“The deliberate indifference
standard has . . . played a pervasive role in the law of § 1983 municipal liability.”).

      6
        Even though Chief Gardner made the hiring decision, Ms. Schneider did not
assert her hiring claim against him.

                                         - 20 -
at his deposition that if he had known about the A.L. complaint, he would have

delayed and/or terminated Officer Coyne’s hiring.

      Second, Ms. Schneider complained that the investigation did not secure

Officer Coyne’s records from his previous employment at the Florida Department of

Environmental Protection (FDEP). She asserted that those records show that he was

the subject of an internal investigation for “Conduct unbecoming a public employee,”

with a finding of “Not Sustained.” Aplt. App., Vol. 4 at 642.

      This claim against both defendants fails for lack of evidence sufficient to

establish deliberate indifference.

             i. Individual Defendant

      In Brown, the Supreme Court discussed the standards for evaluating whether a

policymaker’s hiring decision reflects deliberate indifference:

      A plaintiff must demonstrate that a municipal decision reflects
      deliberate indifference to the risk that a violation of a particular
      constitutional or statutory right will follow the decision. Only where
      adequate scrutiny of an 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 can the official’s failure to adequately
      scrutinize the applicant’s background constitute “deliberate
      indifference.”

520 U.S. at 411. Brown addressed the proof necessary to show deliberate

indifference when the background investigation was inadequate. See id. at 401, 411.

Here, however, the record does not support a finding that the background

investigation of Officer Coyne was inadequate.


                                         - 21 -
      The investigation addressed Officer Coyne’s professional and personal

background. On the professional side, the investigating sergeant contacted MCSO.

He spoke with three employees there who were familiar with Officer Coyne, and he

reviewed Officer Coyne’s personnel file. He also contacted two former employers,

the Santa Rosa County (Florida) Sheriff’s Office and the FDEP. The Santa Rosa

County Sheriff’s Office gave a favorable report of Officer Coyne, while the FDEP

did no more than verify Officer Coyne’s employment, stating that the FDEP’s

employment information was confidential.

      On the personal side, the sergeant conducted a home visit, reviewed Officer

Coyne’s personal history statement, and contacted his personal references. The one

reference who responded gave a positive report of Officer Coyne. Further, the

sergeant performed a criminal-history check, which showed no criminal history or

law enforcement contacts, and he reviewed a psychological suitability report. The

sergeant concluded that Officer Coyne was eligible for employment.

      Neither of the faults alleged by Ms. Schneider made the investigation

inadequate. First, as to concluding the background investigation before

Officer Coyne’s start date, some lag time between the completion of the investigation

and a candidate’s start date is not unreasonable. Here, the gap was three weeks, and

the investigation stated that “it appear[ed] that Coyne has generally been a good,

dependable employee.” Aplt. App. Vol. 4 at 639. In the absence of any information

to the contrary (such as actual notice of the A.L. complaint), it was not deliberate


                                         - 22 -
indifference for PSA Dyer to conclude the investigation shortly before Officer

Coyne’s start date.

      Second, regarding the FDEP records, the sergeant contacted the FDEP and was

told that its records were confidential. It was not deliberate indifference for

PSA Dyer to abide by the FDEP’s decision not to provide its records.

      For these reasons, we agree with the district court that no reasonable jury

could conclude that PSA Dyer was deliberately indifferent to the risk that Officer

Coyne would violate an individual’s constitutional right to bodily integrity.

             ii. The City

      The Supreme Court has emphasized:

             Cases involving constitutional injuries allegedly traceable to an
      ill-considered hiring decision pose the greatest risk that a municipality
      will be held liable for an injury that it did not cause. In the broadest
      sense, every injury is traceable to a hiring decision. Where a court fails
      to adhere to rigorous requirements of culpability and causation,
      municipal liability collapses into respondeat superior liability.

Brown, 520 U.S. at 415.

      The evidence indicates that PSA Dyer was not a policymaker or decisionmaker

for the City with regard to hiring Officer Coyne. He did not make the hiring

decision—Chief Gardner did. Consequently, the hiring claim against the City must

be based on Chief Gardner’s actions or inactions. As discussed above, the

background investigation was not inadequate, and, as with PSA Dyer, there is no

evidence that Chief Gardner was deliberately indifferent. See id., 520 U.S. at 415-16

(stating that the county was not liable for the sheriff’s hiring decision because the

                                         - 23 -
plaintiff had not shown that the sheriff acted with deliberate indifference).

Moreover, no evidence suggested that the City had actual or constructive notice of

the need for any additional background investigation. See Barney, 143 F.3d at 1307

(“The deliberate indifference standard may be satisfied when the municipality has

actual or constructive notice that its action or failure to act is substantially certain to

result in a constitutional violation, and it consciously or deliberately chooses to

disregard the risk of harm.”). Accordingly, we agree with the district court that no

reasonable jury could find that the City acted with deliberate indifference in its

decision to hire Officer Coyne.

       b. Training

       The defendants named in the training claim were Chief Gardner, Interim Chief

Camper, Deputy Chief Zen, Sergeant Baker, and the City. Ms. Schneider argues that

GJPD should have trained its officers not to have sexual relationships with women

they meet in the course of doing their jobs.

       The claim against the individual defendants is waived and the claim against

the City fails for a lack of evidence of deliberate indifference.

              i. Individual Defendants

       Ms. Schneider provided no argument in her opening brief as to how the

district court erred in granting summary judgment in favor of the individual

defendants on this claim. “[W]e routinely have declined to consider arguments that

are not raised, or are inadequately presented, in an appellant’s opening brief. . . .


                                           - 24 -
Stated differently, the omission of an issue in an opening brief generally forfeits

appellate consideration of that issue.” Bronson v. Swensen, 500 F.3d 1099, 1104

(10th Cir. 2007). We therefore decline to address the issue here. That leaves the

City as the only remaining defendant for the training claim.

              ii. The City

       “[T]here are limited circumstances in which an allegation of a ‘failure to train’

can be the basis for [municipal] liability under § 1983.” City of Canton, 489 U.S. at

387. “[T]he inadequacy of police training may serve as the basis for § 1983 liability

only where the failure to train amounts to deliberate indifference to the rights of

persons with whom the police come into contact.” Id. at 388. A municipality can be

liable where “the need for more or different training is so obvious, and the

inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have been deliberately indifferent

to the need.” Id. at 390.

       Ms. Schneider has failed to show, as the law requires, that “the need for more

or different training [was] so obvious” that a violation of her constitutional right to

bodily integrity was likely to result from not providing it. She argues that “the GJPD

fostered a culture where officers commonly engaged in sexually oriented contact with

women who the[] officer met while on duty.” Aplt. Opening Br. at 51. Some of the

conduct Ms. Schneider points to, however, occurred in consensual relationships,

which would not amount to constitutional violations.


                                          - 25 -
      As for non-consensual sexual misconduct by GJPD officers, the record reflects

that before the assault on Ms. Schneider, and besides the V.W. complaint, there was

only one other report of non-consensual sexual misconduct. That officer was placed

on administrative leave and resigned before the investigation process was completed.

Although this report of police misconduct along with the V.W. complaint are

troubling, they were not enough to make it obvious to GJPD that officers were likely

to engage in non-consensual sexual conduct unless they were trained not to engage in

any sexual relationship with women whom they met while on the job. As we stated

in analogous circumstances, “[s]pecific or extensive training hardly seems necessary

for a jailer to know that sexually assaulting inmates is inappropriate behavior.”

Barney, 143 F.3d at 1308; see also Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir.

1996) (“In light of the regular law enforcement duties of a police officer, we cannot

conclude that there was a patently obvious need for the city to specifically train

officers not to rape young women.”).

      Moreover, Officer Coyne was, in fact, instructed against relationships with

women he met on duty. As discussed below in connection with Ms. Schneider’s

discipline claim, the notice of discipline he received as a result of the V.W. complaint

told him that it was unacceptable to engage in sexual relationships with women

whom he met through his job. Given that he acted in violation of this direct warning,

it is unclear how the training advocated by Ms. Schneider would have prevented the

assault on her. Indeed, the directive issued to Officer Coyne was the opposite of


                                         - 26 -
deliberate indifference. See Porro, 624 F.3d at 1328-29 (given that officer

knowingly acted contrary to policy, “any reasonable fact finder would have to

conclude that—far from exhibiting deliberate indifference . . . or causing his injury—

the county actively sought to protect [plaintiff’s] rights and it was (only)

[defendant’s] improper actions, taken in defiance of county policy, that caused

[plaintiff’s] injuries”).

       We agree with the district court that Ms. Schneider cannot show that the City

acted with deliberate indifference to the risk of what happened to her in the manner it

trained its officers.

       c. Investigation of V.W. Complaint

       The defendants named in this claim were Chief Gardner, Deputy Chief Zen,

PSA Dyer, and the City. PSA Dyer conducted the internal investigation of V.W.’s

complaint alleging that Officer Coyne sexually assaulted her following consensual

sex. Ms. Schneider alleged that the internal investigation was inadequate because

PSA Dyer did not update the background check from when Officer Coyne was hired.

She argues that, had he updated the hiring background check and/or obtained

MCSO’s complete personnel file, the A.L. complaint would have been revealed. In

turn, Chief Gardner testified at his deposition that if he had learned of the A.L.

complaint during the V.W. investigation, he would have dismissed Officer Coyne.

Therefore, Ms. Schneider contends, if PSA Dyer had performed a more thorough

investigation, Officer Coyne would not have been in a position to attack her. She


                                          - 27 -
further asserts that Chief Gardner ratified PSA Dyer’s decision not to update the

earlier background investigation.

      The claim against Deputy Chief Zen is waived, and the claims against the

other individual defendants and the City fail for lack of evidence of deliberate

indifference.

                i. Individual Defendants

      Ms. Schneider has not argued on appeal how the district court erred in granting

judgment in favor of Deputy Chief Zen on this claim, and thus we do not consider the

allegations against him. See Bronson, 500 F.3d at 1104. That leaves the allegations

against Chief Gardner and PSA Dyer.

      PSA Dyer communicated numerous times with the MSCO officer in charge of

the criminal investigation into V.W.’s allegations of sexual assault against Officer

Coyne. He also did other preliminary work, such as reviewing Officer Coyne’s e-

mail messages and telephone calls for anything relevant to the V.W. complaint, and

he sat in on the MSCO officer’s interview of Officer Coyne. By the time he did the

internal investigation, PSA Dyer had a copy of the entire criminal file compiled by

MSCO and had been briefed by the investigating officer and deputy district attorney

regarding their analyses of the criminal investigation. PSA Dyer also separately

interviewed Officer Coyne.

        Consistent with our analysis of the hiring claim, PSA Dyer’s failure to update

the 2006 background investigation did not make the internal investigation of the


                                           - 28 -
V.W. complaint inadequate. The MSCO conducted the criminal investigation

regarding the V.W. complaint, yet the A.L. complaint did not come to light even

though MCSO had the A.L. complaint in its files. Neither PSA Dyer nor

Chief Gardner had information indicating any need to update the background

investigation, much less know that an obvious consequence of not updating the

background investigation created a substantial risk of constitutional injury.

Accordingly, we agree with the district court that a rational jury could not find that

PSA Dyer or Chief Gardner acted with deliberate indifference.

             ii. The City

      As was the case with PSA Dyer and Chief Gardner, the City had no notice of

any reason to update Officer Coyne’s background investigation. The individual

defendants were not deliberately indifferent, so judgment in favor of the City on a

claim predicated on their decisions also was appropriate. See Brown, 520 U.S. at

415-16; see also Brown v. Gray, 227 F.3d 1278, 1289 (10th Cir. 2000) (stating that to

proceed with municipal liability claim, “the plaintiff must show that a policymaker,

which could be the chief of police, among others, was deliberately indifferent”).7


      7
        In addition, PSA Dyer is not a policymaker for the City. In seeking to
impose municipal liability, Ms. Schneider contends that Chief Gardner ratified PSA
Dyer’s decision not to update the background investigation. “However, a
municipality will not be found liable under a ratification theory unless a final
decisionmaker ratifies an employee’s specific unconstitutional actions, as well as the
basis for these actions.” Bryson v. City of Okla. City, 627 F.3d 784, 790 (10th Cir.
2010). Given that PSA Dyer’s actions were not unconstitutional, Chief Gardner’s
alleged ratification of those actions does not impose liability on the City.

                                         - 29 -
       d. Discipline

       Ms. Schneider asserted her discipline claim against Chief Gardner,

Deputy Chief Zen, PSA Dyer, and the City.

       After the criminal investigation and internal investigation of the V.W.

complaint, Chief Gardner met with Deputy Chief Zen and PSA Dyer to consider

appropriate discipline of Officer Coyne. Chief Gardner was the final decisionmaker.

In his affidavit submitted in this litigation, he explained:

              16. Although it was an extremely difficult decision, I
       ultimately decided that Coyne’s conduct reflected bad judgment and he
       should be disciplined for engaging in conduct unbecoming of a police
       officer and that reflected unfavorably on the GJPD, and for failing to
       obey all City and Department regulations. . . .

             17. I decided that the appropriate discipline was to place
       Coyne back on probationary status, rather than terminate him. This
       would allow Coyne to be terminated for any questionable conduct, in
       other words, he could be terminated for no cause. . . .

Aplt. App., Vol. 1 at 123. In addition, he cut Officer Coyne’s pay by ten percent.

Ms. Schneider contends that instead of imposing this intermediate discipline,

Chief Gardner should have dismissed Officer Coyne and that the failure to do so led

to her rape.

       The claims against Deputy Chief Zen and PSA Dyer are waived, and the

claims against Chief Gardner and the City fail for lack of deliberate indifference.




                                          - 30 -
             i. Individual Defendants

      On appeal, Ms. Schneider has failed to challenge the judgment in favor of

Deputy Chief Zen and PSA Dyer on the discipline claim, so we need not discuss the

allegations against them. See Bronson, 500 F.3d at 1104.

      Turning to Chief Gardner, the district court gave Ms. Schneider the benefit of

the doubt regarding causation. But it held there was no showing that Chief Gardner

was deliberately indifferent because “Chief Gardner was presented with Officer

Coyne’s apparently clean record and a single off-duty incident with both parties

admitting to some consensual sexual contact, disputed non-consensual sexual

activity, ambiguous physical evidence and a polygraph test showing no deception

with respect to the disputed facts.” Aplt. App., Vol. 5 at 1083. We agree that Chief

Gardner’s disciplinary decision did not reflect deliberate indifference.

      As the district court noted, the evidence regarding the V.W. complaint was

equivocal. The court explained that the medical evidence was inconclusive, V.W.

was an unreliable witness who admitted that the encounter began consensually, and

the deputy district attorney determined there was insufficient evidence for a criminal

conviction. Officer Coyne maintained that the entire encounter was consensual, and

he passed a polygraph test to that effect. It is only in hindsight, with knowledge of

the assaults on Ms. Schneider and A.L., that the scales may have tipped in favor of

V.W.’s version of events. Whether Chief Gardner acted with deliberate indifference

must be based on what he knew then, not what is known now.


                                         - 31 -
      Other circuits have held that disciplinary decisions in similar circumstances

were not made with deliberate indifference. See DiRico v. City of Quincy, 404 F.3d

464, 469 (1st Cir. 2005) (a city’s decision not to take action against an officer based

on one unsubstantiated allegation of excessive force did not constitute deliberate

indifference); Rogers v. City of Little Rock, 152 F.3d 790, 800 (8th Cir. 1998) (police

chief responded adequately to two incidents of prior misconduct by imposing

suspension in the one case that was sustained, so he was not deliberately indifferent

to future risk); Jones v. Wellham, 104 F.3d 620, 626-27 (4th Cir. 1997) (where

evidence was insufficient for criminal prosecution in prior incident, chief’s

disciplinary decisions were “clearly unfortunate,” perhaps “imprudent,” or even

“legally negligent,” but not deliberately indifferent); Gonzalez v. Ysleta Indep. Sch.

Dist., 996 F.2d 745, 762 (5th Cir. 1993) (school board was not deliberately

indifferent in transferring teacher rather than terminating employment, where teacher

was accused of molestation but there was no corroborating evidence).

      Further, as the district court also noted, Chief Gardner took the V.W.

complaint seriously. He disciplined Officer Coyne with a pay cut and probation, and

the resulting notice of discipline issued by Deputy Chief Zen8 told Officer Coyne that

his conduct was unacceptable:




      8
         Chief Gardner determined the discipline for Officer Coyne. Deputy Chief
Zen issued the notice of discipline, which Chief Gardner reviewed and approved
prior to issuance.

                                         - 32 -
      First and foremost you are always a peace officer[.] . . . You knew or
      should have known that [V.W.] was vulnerable. There simply is no
      justification for your engaging in a relationship with her.

      . . . Your behavior and the selfishness of it are astounding.

      . . . Your behavior in this matter calls in to question your judgment and
      you[r] ethics. . . . [Y]our lapse in judgment and failure to exercise
      critical decision making, by consciously pursuing a relationship with a
      person you knew or should have known as being vulnerable, is
      shameful.

      . . . Let this letter serve as a clear warning that should this type of
      behavior occur again, the trust I [Deputy Chief Zen] have in you will be
      irreparably damaged and there is no place in this department for
      someone I cannot trust.

Aplt. App., Vol. 4 at 685, 687, 688.

      We agree with the district court that summary judgment is proper because

there is no evidence that Chief Gardner disciplined Officer Coyne with deliberate

indifference.

                ii. The City

      The discipline claim against the City is based on Chief Gardner’s disciplinary

decision. Rarely if ever is “the failure of a police department to discipline in a

specific instance . . . an adequate basis for municipal liability under Monell,” Butler

v. City of Norman, 992 F.2d 1053, 1056 (10th Cir. 1993) (internal quotation marks

omitted). Having concluded that Chief Gardner did not act with deliberate

indifference in choosing a lesser discipline than dismissal, we also affirm judgment

in favor of the City on the discipline claim. See Brown, 520 U.S. at 415-16; see also

Brown v. Gray, 227 F.3d at 1289.

                                         - 33 -
             e. Supervision

      Ms. Schneider’s supervision claim named Chief Gardner, Interim Chief

Camper, Deputy Chief Zen, Sergeant Baker, and the City. This claim focuses on how

two GJPD policies—the Confidentiality Policy and the Command Staff Review

Policy—were applied to the V.W. complaint.

      The first relevant policy is the Confidentiality Policy, which provides that

“[a]n Internal Affairs Investigation shall be kept strictly confidential as provided by

applicable procedure and law.” Aplt. App., Vol. 3 at 560.

      Per standing orders of the Chief of Police, if any employee is the subject
      of or a witness in an Internal Affairs Investigation, the employee shall
      not discuss any facts, details, circumstances, procedures, or any other
      information about the complaint or the investigation with any person
      except as allowed by policy or law.

Id. (emphasis omitted). In his deposition, Chief Gardner confirmed that he has

always directed his staff to keep the specifics of an investigation confidential. When

asked why, he responded, “[n]umber one, it’s for the liberty interests of the affected

employee. And then to maintain integrity of our investigative process.” Id. at 397.

He also stated that confidentiality was “a general police professional conduct” and

that “employees, victims, witnesses deserve the respect of confidentiality.” Id.

      The second policy pertinent to this claim is the Command Staff Review

(“CSR”) Policy. The CSR Policy provides that upon completion of an internal

investigation, the deputy chief will convene a CSR “to review and discuss the

[investigation] reports and supporting documentation.” Id. at 565. “The CSR shall


                                         - 34 -
be responsible for recommending a disposition of any alleged violation(s) of

Department/City policy or procedures and any disciplinary action(s) or sanction(s).”

Id. The supervisor of the subject of the investigation participates in the CSR review.

In this case, what is relevant about the CSR is not the CSR Policy itself, but an

unwritten custom at GJPD of not holding a CSR in matters involving sexual

misconduct. In explaining this custom, Deputy Chief Zen said, “an incident

involving marital indiscretion . . . having an affair, these sorts of things . . . didn’t

necessarily need to be put out into the public in the form of a command staff review.”

Id. at 419. Consistent with this practice, Chief Gardner and Deputy Chief Zen

decided not to convene a CSR following the investigation of the V.W. complaint.9

       Pursuant to the Confidentiality Policy and the CSR custom, the internal

investigation of the V.W. complaint was kept confidential, even from

Officer Coyne’s new supervisor, Sergeant Baker. The sergeant knew that

Officer Coyne was on probation, but not why he had been disciplined. His request




       9
         It is not clear that the GJPD’s custom of forgoing a CSR on allegations of
“sexual misconduct” would apply to V.W.’s allegations, which were far more serious
than the type of behavior Deputy Chief Zen referenced as falling under the custom,
such as “marital indiscretion.” Aplt. App., Vol. 3 at 419. V.W.’s complaint that
Officer Coyne committed a non-consensual sexual assault alleged a criminal act. The
investigation determined that proof of this allegation was inconclusive, and
Officer Coyne was disciplined only for having a consensual sexual relationship with
V.W. Whether or not a CSR would have been held in this instance had it been
treated as involving a non-consensual sexual assault does not affect the outcome of
this appeal.

                                           - 35 -
for further information was denied on the ground that GJPD policy required the

information to be kept confidential.

      Although we are troubled that Officer Coyne’s supervisor was not informed of

the V.W. complaint, we affirm the summary judgment in favor of the defendants for

lack of sufficient evidence of causation.

             i. Individual Defendants

      “Section 1983 imposes liability on a government official who ‘subjects, or

causes to be subjected, any citizen . . . to the deprivation of any rights.’” Martinez v.

Carson, 697 F.3d 1252, 1255 (10th Cir. 2012) (quoting § 1983). Like deliberate

indifference, causation is an element of Ms. Schneider’s § 1983 claims. See id. at

1255; Dodds, 614, F.3d at 1199. Causation is generally a question of fact for the

jury. See Schwartz, at § 6.03[A][1]. But whether the plaintiff has presented

sufficient evidence of causation to defeat a motion for summary judgment is a legal

question. See Henry v. Merck & Co., Inc., 877 F.2d 1489, 1495 (10th Cir. 1989); see

also June v. Union Carbide Corp., 577 F.3d 1234, 1253 (10th Cir. 2009) (Holloway,

J. concurring and dissenting) (collecting authorities).

      As we have already explained, “causal connection is satisfied if Defendants set

in motion a series of events that Defendants knew or reasonably should have known

would cause others to deprive Plaintiffs of their constitutional rights.” Martinez,

697 F.3d at 1255 (alterations and internal quotation marks omitted).




                                            - 36 -
      The premise of Ms. Schneider’s supervision claim is that the Confidentiality

Policy and the CSR custom prevented Sergeant Baker from learning about the V.W.

complaint, and that if he had known of the complaint, Sergeant Baker would have

supervised Officer Coyne more closely and prevented the attack on Ms. Schneider.

To prevail, Ms. Schneider must show that the policy and custom set into motion a

series of events that the individual defendants—Chief Gardner, Interim Chief

Camper, Deputy Chief Zen, and Sergeant Baker—knew or should have known would

result in Officer Coyne committing an intentional, criminal assault.

      The district court determined that causation for the supervision claim “is a

closer question than is apparent with regard to hiring and training. Logically, it

would make sense that if Officer[] Coyne’s supervisor had known about the reasons

for his probation, that some restrictions might have been imposed.” Aplt. App., Vol.

5 at 1078. But the district court ultimately concluded that, at the time of the attack,

Officer Coyne was off-duty and not under official supervision. Therefore, “even if

Officer Coyne’s supervisors knew of the prior incident with [V.W.], there is no

evidence that any supervision would have prevented Officer Coyne from committing

an intentional, criminal assault while off-duty.” Id.

      We agree that Ms. Schneider’s supervision claim is stronger than her hiring

and training claims. In particular, the GJPD custom of omitting the CSR, a standard

tool in GJPD’s disciplinary investigations, in cases involving sexual misconduct, is

concerning. The defendants’ stated desire to protect the privacy of misbehaving


                                         - 37 -
officers and third parties likely could have been served by other means, without

relaxing the investigative process.

      Nevertheless, we cannot say that Sergeant Baker’s lack of knowledge of the

specific details of the V.W. complaint set in motion a series of events that caused the

constitutional violation. To establish this, Ms. Schneider would need to show that if

Sergeant Baker had known the relevant details, he would have taken specific actions

and that these actions would have prevented Officer Coyne’s attack. She has not

provided such evidence.

      The evidence seems to cut the other way. If Sergeant Baker had been

informed of the reason for Officer Coyne’s probationary status, he would have been

told that an investigation of Officer Coyne determined (1) he had consensual sex with

a woman he had met while on duty and (2) proof of her allegation that the consensual

sex had become non-consensual was inconclusive, based at least in part on V.W.’s

credibility issues and Officer Coyne’s passing a polygraph test. We cannot say that

keeping these details from the sergeant put into motion a series of events that any of

the individual defendants knew or should have known would result in Officer Coyne

committing a violent felony.

      There is no evidence the sergeant would have responded differently to this

information. Ms. Schneider has not pointed to any particular action the sergeant

would have taken. Nor has she shown how any particular action on the sergeant’s

part would have prevented his attack on Ms. Schneider. Officer Coyne was already


                                         - 38 -
on probation from the V.W. investigation. He had received a pay cut and a stern

warning in the notice of discipline from commanding officers more senior to him

than Sergeant Baker. Yet he still committed a violent, criminal act against Ms.

Schneider. There is no evidence that additional controls or sanctions from Sergeant

Baker would have had any more deterrent effect than the already-present threats of

discharge and criminal punishment.

      Mere speculation that something would have been done to prevent

Ms. Schneider’s injury is not sufficient to establish causation.

             ii. The City

      As with the individual defendants, to proceed against the City, Ms. Schneider

must present sufficient evidence to create a genuine issue of material fact as to

causation.10 See Monell, 436 U.S. at 692 (“Congress did not intend § 1983 liability to

attach where . . . causation was absent.”); City of Canton, 489 U.S. at 391 (requiring

the identified deficiency to “be closely related to the ultimate injury”); Brown,

520 U.S. at 404 (requiring the plaintiff to “demonstrate a direct causal link between

the municipal action and the deprivation of federal rights”); see also Schwartz, at

§ 6.03[A][2] (“The various phrases employed by the Court . . . emphasize[] that the


      10
          As mentioned earlier, as to Ms. Schneider’s claims against the City, we have
assumed without deciding the existence of a policy or custom sufficient for municipal
liability. We note that the supervision claim involved a formal written GJPD policy
(the Confidentiality Policy) as well as the City’s custom not to hold a CSR in matters
involving sexual misconduct.


                                         - 39 -
§ 1983 claimant must show a close relationship between the enforcement of a

municipal policy or custom and the plaintiff’s injury.”).11 For the same reasons

discussed above, we agree with the district court that Ms. Schneider has failed to

satisfy the burden of presenting sufficient evidence of causation on her supervision

claim against the City.

                       B. Defendants’ Cross-Appeal (No. 12-1115)

      Because we have affirmed the district court’s grant of summary judgment to

defendants on each of Ms. Schneider’s claims, we dismiss defendants’ cross-appeal

as moot. See, e.g., Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d 1057, 1070

(10th Cir. 2007) (deeming defendant’s cross-appeal of discovery order to be moot

when this court affirmed the district court’s grant of summary judgment to

defendant); Carpenter v. Boeing Co., 456 F.3d 1183, 1204 (10th Cir. 2006)

(dismissing defendant’s cross-appeal of class certification as moot when this court

affirmed the district court’s grant of summary judgment to defendant).




      11
           Schwartz further notes:

      The Supreme Court . . . has not resolved whether the § 1983 municipal
      liability causation requirement is equivalent to common law proximate
      cause or is a more rigorous standard. There are indications that, at least
      for some types of municipal liability claims [including claims regarding
      training and hiring], the causation requirement is more rigorous than
      common law proximate cause.

Schwartz, at § 7.12[B].

                                        - 40 -
                                  III. CONCLUSION

      Four of Ms. Schneider’s claims fail on the element of culpable state of mind,

and her fifth claim fails on the element of causation. In No. 12-1086, Ms.

Schneider’s appeal, the grant of summary judgment to all of the defendants is

therefore affirmed. No. 12-1115, the defendants’ cross-appeal, is dismissed as moot.




                                        - 41 -
