                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3668
                                  ___________

Ronnie McCoy; Lori McCoy,            *
                                     *
            Appellants,              *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the Eastern
City of Monticello; Harold West,     * District of Arkansas.
Mayor; Monticello Police             *
Department; Sam Norris;              *
Ken Ouelette,                        *
                                     *
             Appellees.              *
                                 ___________

                            Submitted: January 13, 2005
                               Filed: June 16, 2005
                                ___________

Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       On December 31, 2000, Ken Ouelette (Officer Ouelette), an auxiliary police
officer with the Monticello Police Department, engaged in a police pursuit of a
vehicle driven by Ronnie McCoy (McCoy). The pursuit ended when the police
forced McCoy’s vehicle off the ice-covered road into a ditch. With his firearm
drawn, Officer Ouelette ran towards McCoy’s vehicle, slipped, and fell on the ice.
Upon falling, Officer Ouelette’s gun accidentally discharged, and a bullet struck
McCoy in the chest, seriously injuring him. McCoy and his wife, Lori McCoy,
(McCoys) sued the City of Monticello, Mayor Harold West, the Monticello Police
Department, Police Chief Sam Norris, (collectively, City), and Officer Ouelette under
42 U.S.C. § 1983, alleging violations of McCoy’s Fourth Amendment rights. Earlier,
Officer Ouelette appealed the district court’s denial of qualified immunity.
Concluding no unreasonable seizure had occurred, we reversed, holding Officer
Ouelette was entitled to qualified immunity. McCoy v. City of Monticello, 342 F.3d
842, 848-49 (8th Cir. 2003) (McCoy I). Thereafter, the district court1 granted
summary judgment on the municipal liability claims. The McCoys appeal, and we
affirm.

       The McCoys appeal the grant of summary judgment in favor of the City on
their municipal claims of unconstitutional custom and failure to train and supervise,
arguing Tennessee v. Garner, 471 U.S. 1 (1985), mandates reversal. We review de
novo a grant of summary judgment, giving the McCoys the most favorable reading
of the record as well as the benefit of any reasonable inferences drawn from the
record. Wilson ex rel. Wilson v. Gunn, 403 F.3d 524, 526 (8th Cir. 2005).

       A Fourth Amendment seizure requires an intentional act by an officer, and does
not address “accidental effects of otherwise lawful government conduct.” Brower v.
County of Inyo, 489 U.S. 593, 596-97 (1989). We previously held Officer Ouelette’s
act of drawing his gun was “objectively reasonable,” and the accidental discharge did
not constitute an unreasonable seizure violating McCoy’s constitutional rights.2

      1
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
      2
       The McCoys seek relief under section 1983 based on a Fourth Amendment
constitutional violation. They do not assert a claim for negligence. In McCoy I, we
briefly discussed, without deciding, the issue of whether an accidental shooting
implicates liability under the Fourth Amendment. See McCoy I, 342 F.3d at 847 n.3.


                                         2
McCoy I, 342 F.3d at 847-49. Therefore, the City cannot be held liable on either an
unconstitutional policy or custom theory or on a failure to train or supervise theory.
This circuit has consistently recognized a general rule that, in order for municipal
liability to attach, individual liability first must be found on an underlying substantive
claim.3 See McVay v. Sisters of Mercy Health Sys., 399 F.3d 904, 909 (8th Cir.
2005) (stating “[s]ince we have found that [the officer’s] actions were not
unconstitutional, McVay cannot make a prima facie case against the City under
section 1983”); Turpin v. County of Rock, 262 F.3d 779, 784 (8th Cir. 2001)
(concluding because district court properly granted officers summary judgment on
qualified immunity grounds, county likewise was entitled to summary judgment);
Veneklase v. City of Fargo, 248 F.3d 738, 748 (8th Cir. 2001) (en banc) (declaring
“where arresting police officers are absolved of liability to arrestees, the City
ordinarily is not liable”); Thomas v. Dickel, 213 F.3d 1023, 1026 (8th Cir. 2000)
(reasoning “[b]ecause we have found that the officers’ stop of the plaintiffs’ car did
not violate their fourth amendment[ ] rights, it follows that the plaintiffs’ claim
against the city (inadequate training and municipal custom) must likewise fail”);
Eagle v. Morgan, 88 F.3d 620, 628 (8th Cir. 1996) (declaring decision that officers’
conduct did not violate plaintiff’s constitutional right to privacy disposed of related
claims against the city); Abbott v. City of Crocker, 30 F.3d 994, 998 (8th Cir. 1994)
(holding city cannot be found liable on either a failure-to-train theory or a municipal
custom/policy theory unless a defendant police officer is found liable on an
underlying substantive claim).




      3
         On one occasion we recognized an exception to the general rule when a state
actor is not held responsible for a constitutional injury because of a “good faith belief,
meriting qualified immunity.” Kuha v. City of Minnetonka, 365 F.3d 590, 603 (8th
Cir. 2004) (quoting from Judge Lay’s dissent in Tilson v. Forrest City Police Dep’t,
28 F.3d 802, 813 & n.9 (8th Cir. 1994)). Because McCoy’s case does not involve a
constitutional injury, the Kuha exception is not implicated.

                                            3
       We have reviewed Tennessee v. Garner and conclude its facts are clearly
distinguishable. Garner involved a police officer’s intentional use of deadly force to
prevent the escape of a fleeing, unarmed burglar. While ruling a Tennessee statute
authorizing use of deadly force was not unconstitutional on its face, the Supreme
Court held “[t]he use of deadly force to prevent the escape of all felony suspects,
whatever the circumstances, is constitutionally unreasonable.” Garner, 471 U.S. at
11. The Court further declared, “[a] police officer may not seize an unarmed,
nondangerous suspect by shooting him dead.” Id. These are not the facts before us.
McCoy’s case involves an auxiliary police officer’s display of deadly force to
effectuate an arrest followed by an accidental firing of the officer’s service revolver.

       Our review also persuades us the district court correctly found the record fails
to establish either (1) the City had a policy or custom of displaying lethal force to
effectuate a felony traffic stop, or (2) the City failed to train or supervise Officer
Ouelette properly on effecting a felony traffic stop.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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