                                                                 F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                                       PUBLISH
                                                                 AUG 20 1998
                    UNITED STATES COURT OF APPEALS
                                                               PATRICK FISHER
                                                                     Clerk
                                 TENTH CIRCUIT



SUZANNE MYERS, Administratix of the
Estate of Thomas James Myers, deceased;
SAMSON MYERS, individually, and
through Suzanne Myers, his parent and
Next Friend, and; SUZANNE MYERS,
individually,

             Plaintiffs- Appellants,

      v.
                                                 No. 97-6003
OKLAHOMA COUNTY BOARD OF
COUNTY COMMISSIONERS; J.D.
SHARP, individually and as Sheriff of the
Oklahoma County Sheriff’s Department;
SCOTT CANNON, individually and as a
Deputy Sheriff of the Oklahoma County
Sheriff’s Department; MARSHALL
MCDONALD, individually and as a
Deputy Sheriff of the Oklahoma County
Sheriff’s Department,

             Defendants - Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                        (D. Ct. No. 94-CV-246)
Submitted on the briefs:*

Carl J. Franklin, Norman, Oklahoma, for Plaintiffs-Appellants.

Robert H. Macy, District Attorney, John M. Jacobsen, Assistant District Attorney, Office
of the District Attorney, Oklahoma City, Oklahoma, for Defendants-Appellees.


Before TACHA, BRORBY, and EBEL, Circuit Judges.


TACHA, Circuit Judge.


       This case arises out of the tragic shooting death of Tom Myers by two officers of

the Oklahoma County Sheriff’s Department. Mr. Myers’s survivors, including his wife

Suzanne, sued the sheriff, the County, and the two officers who shot Mr. Myers. The suit

alleged that in shooting Mr. Myers, the defendants committed various torts and

constitutional violations. The district court granted summary judgment in favor of the

sheriff in his official capacity and the County. The plaintiffs now appeal that grant of

summary judgment. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I.     Background

       On April 3, 1993, Tom Myers and his wife Suzanne had an argument. Tom forced

Suzanne, their infant son, and Tom’s aunt out of the apartment in which they all were



       *
        After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.

                                             2
staying. The three spent the night at Suzanne’s parents’ house. Although she knew that

her husband was drunk, armed with a .22 caliber rifle, and suicidal, Suzanne returned to

the apartment the next day. When Tom would not let her in, Suzanne requested police

assistance.

       Officers of the Bethany Police Department and Oklahoma County Sheriff’s office

arrived on the scene and established contact with Mr. Myers in an attempt to prevent his

suicide. During a conversation with one of those officers, Mr. Myers fired a shot from his

rifle. Lieutenant Neil Troutman then took over the negotiations with Mr. Myers, speaking

to him by telephone several times during the course of the afternoon and evening. Mr.

Myers told Lt. Troutman that he was tired of living and that he wanted to die. On the

afternoon of April 4, the officers took a statement from Suzanne Myers and obtained an

Order of Detention and Forcible Entry from a special district judge of the Oklahoma

County District Court.

       At approximately 8:00 p.m. Sheriff J.D. Sharp ordered entry into the apartment to

enforce the court order and to take Mr. Myers into protective custody. Officers Marshall

McDonald and Scott Cannon entered. According to the officers’ testimony, Mr. Myers

pointed his .22 rifle at them upon their entry into the apartment. Sgt. McDonald testified

that he yelled “Freeze, Police,” upon realizing that Mr. Myers was pointing the weapon at

him. Sgts. McDonald and Canon fired their weapons at Mr. Myers, killing him.

       The plaintiffs sued Sheriff Sharp, the County, and Officers Cannon and McDonald


                                             3
under 42 U.S.C. § 1983 for violating Mr. Myers’s constitutional rights under the Fourth

and Eighth Amendments. The plaintiffs also sued the defendants for committing the torts

of assault, battery, negligence, and intentional infliction of emotional distress. The

district court granted summary judgment in favor of Sheriff Sharp in his official capacity

and the County on the section 1983 and state law claims. The court reasoned that the

plaintiffs had failed to produce relevant evidence for the constitutional claims brought

under section 1983, and that Oklahoma law provided immunity on the state law claims.

The court, however, denied summary judgment for the sheriff in his individual capacity

and for Officers Canon and McDonald. The suit against the individual defendants went

to trial before a jury, and the defendant officers prevailed.1 The plaintiffs now appeal the

summary judgment in favor of Sheriff Sharp (in his official capacity) and the County.



II.    The Constitutional Claims

       The plaintiffs allege that the County violated Mr. Myers’s Fourth Amendment

rights because Officers Cannon and McDonald used excessive force in attempting to

apprehend Mr. Myers and because the County failed to train its officers in suicide

prevention, counseling the mentally ill, or treatment for substance abusers. The plaintiffs



       1
        The only constitutional claim addressed at trial was the Fourth Amendment claim
based on the alleged use of excessive force; the jury was not asked to decide whether the
individual officers committed an Eighth Amendment violation. See Appellees’ App.
(Verdict Form).

                                              4
also assert that the County violated Mr. Myers’s Eighth Amendment rights because its

officers failed to tend to Mr. Myers’s serious medical needs. The plaintiffs appeal the

district court’s grant of summary judgment to Sheriff Sharp and the County with respect

to each of these claims.

       We review a grant of summary judgment de novo, applying the same legal

standard as the district court. See Wolf v. Prudential Ins. Co. of America, 50 F.3d 793,

796 (10th Cir. 1995). Summary judgment is appropriate if the plaintiffs have failed to

present evidence sufficient to support a reasonable inference that the County or Sheriff

Sharp violated the relevant constitutional standards. See Kaul v. Stephan, 83 F.3d 1208,

1212 (10th Cir. 1996).

       A. The Fourth Amendment Claims

              1. The Effect of the Jury Verdict

       The defendants argue that we should not undertake a de novo review of the record

with respect to the excessive force claim because the jury verdict in favor of the

individual officers precludes a finding that Sheriff Sharp (in his official capacity) or the

County2 is liable for violating Mr. Myers’s Fourth Amendment rights.

       A plaintiff suing a municipality under section 1983 for the acts of one of its


       2
         "[A section 1983] suit against a municipality and a suit against a municipal
official acting in his or her official capacity are the same.” Watson v. City of Kansas
City, 857 F.2d 690, 695 (10th Cir. 1988) (citing Brandon v. Holt, 469 U.S. 464, 471-72
(1985)). Thus, this opinion refers to the suit against the County and the suit against
Sheriff Sharp in his official capacity both as the “suit against the County.”

                                              5
employees must prove: (1) that a municipal employee committed a constitutional

violation, and (2) that a municipal policy or custom was the moving force behind the

constitutional deprivation. See Monell v. Department of Social Services, 436 U.S. 658,

694 (1978). It is well established, therefore, that a municipality cannot be held liable

under section 1983 for the acts of an employee if a jury finds that the municipal employee

committed no constitutional violation. See, e.g., City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986) (per curiam); Webber v. Mefford, 43 F.3d 1340, 1344-45 (10th Cir.

1994); Watson v. City of Kansas City, 857 F.2d 690, 697 (10th Cir. 1988). In Heller:

       the Supreme Court held that a jury verdict acquitting a Los Angeles
       police officer of a charge of excessive force precluded the
       imposition of liability on the City of Los Angeles for adopting a
       policy condoning the use of excessive force. The Court reasoned
       that where a municipality is "sued only because [it was] thought
       legally responsible" for the actions of its officers, it is
       "inconceivable" to hold the municipality liable if its officers inflict
       no constitutional harm, regardless of whether the municipality's
       policies might have "authorized" such harm.

Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (quoting Heller, 475

U.S. at 799).

        In this case, the jury found that Officers Sharp, Cannon, and McDonald did not

use excessive force against Mr. Myers. This verdict seems to preclude a finding in

favor of the plaintiffs on either of their Fourth Amendment claims against the County,

because both those claims require a finding that the officers used excessive force.

        As noted above, the plaintiffs’ first Fourth Amendment claim is based on the


                                              6
straightforward theory that the officers used excessive force in attempting to take Mr.

Myers into protective custody and that County policies were the moving force behind

their use of such force. The plaintiffs’ second Fourth Amendment claim is that the

County failed to train its officers in the use of deadly force or handling persons who are

suicidal, mentally disturbed, and/or substance abusers. As the Supreme Court

explained in City of Canton, 489 U.S. at 389-90, a municipality’s failure to train is in

general not enough to prove a constitutional violation. Instead, section 1983 plaintiffs

can use a municipality’s failure to train as one way to make the required showing that a

municipal policy or custom was the “moving force” behind an already established

constitutional deprivation. See id. at 389. Therefore, the plaintiffs’ failure to train

claims, like their basic excessive force claim against the individual officers, requires a

predicate showing that the officers did in fact use excessive force against Mr. Myers.

The jury’s finding that the individual officers were not liable would seem to foreclose

both Fourth Amendment claims against the County.

       There is, however, one situation in which the Heller rule does not foreclose suit

against the County under the Fourth Amendment. If the jury based its verdict on the

ground that the officers were entitled to qualified immunity, the Heller rule precluding

liability is inapplicable. In such a case, the jury may have found that the officers did

use excessive force, but that they were entitled to immunity because they acted

reasonably in light of existing law. See Anderson v. Creighton, 483 U.S. 635, 638


                                              7
(1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (stating that an official is

protected by qualified immunity if the officer’s actions were objectively reasonable in

light of clearly established legal rules). Although individual officers may receive the

protection of qualified immunity, “municipalities enjoy no such shield.” Watson, 857

F.2d at 697. Thus, if a jury returns a general verdict for an individual officer premised

on qualified immunity, there is no inherent inconsistency in allowing suit against the

municipality to proceed since the jury’s verdict has not answered the question whether

the officer actually committed the alleged constitutional violation. See id.

       In this case, the defendants moved for summary judgment on the basis of

qualified immunity, but the district court denied that motion. See Myers v. Oklahoma

County Bd., 80 F.3d 421, 424-26 (10th Cir.) (concluding that defendants could not take

interlocutory appeal of district court denial of summary judgment), cert. denied, 117 S.

Ct. 383 (1996). The defendants may have attempted to raise the issue at trial as well.

See Quezada v. County of Bernalillo, 944 F.2d 710, 718 (l0th Cir. 1991) (“Defendants

who are unsuccessful in having a lawsuit dismissed on qualified immunity grounds

before trial may reassert the defense at trial or after trial.”).

       On the record before us, we are unable to determine the grounds for the jury’s

decision. The jury verdict form was a general one. The form instructed the jury only

to declare the defendants “liable” or “not liable” on the use of excessive force claim.

In addition, neither party placed a copy of the jury instruction in the record. Therefore,


                                                8
it is possible that the jury based its decision on qualified immunity. With that

ambiguity lurking, the Heller rule does not foreclose the suit against the County.

              2. The Excessive Force Claim

                      a. Failure to Train

       As noted above, a plaintiff suing a county under section 1983 for the actions of

one of its officers must demonstrate two elements: (1) a municipal employee

committed a constitutional violation, and (2) a municipal policy or custom was the

moving force behind the constitutional deprivation. See Monell, 436 U.S. at 694. We

hold that the plaintiffs have not produced sufficient evidence with regard to the second

element to withstand the defendant’s motion for summary judgment.

       The plaintiffs argue that the County’s failure to adequately train its officers on

the use of deadly force and in dealing with mentally ill or suicidal persons satisfies the

second element of the Monell test. Inadequate police training may, in some

circumstances, result in constitutional liability for a municipality. However, “[o]nly

where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a

municipality—a ‘policy’ . . . —can a city be liable for such failure under § 1983.” City

of Canton v. Harris, 489 U.S. 378, 389 (1989). Therefore, as the district court noted, in

order for liability to attach to a municipality, the failure to train must amount to

“deliberate indifference to the rights of persons with whom the police come into

contact.” Id. at 388; see also Houston v. Reich, 932 F.2d 883, 888 (10th Cir. 1991)


                                              9
(declaring municipality liable “[w]here there is essentially a complete failure to train,

or training is so reckless or grossly negligent that future misconduct is almost

inevitable.”).

       With the above principles in mind, we have said that in order to establish a

municipality’s liability for inadequate training on the use of force, a plaintiff must meet

a four-part test. See Allen v. Muskogee, 119 F.3d 837, 841 (10th Cir. 1997), cert.

denied, 118 S. Ct. 1165 (1998).

      [A] plaintiff must show (1) the officers exceeded constitutional
      limitations on the use of force; (2) the use of force arose under
      circumstances that constitute a usual and recurring situation with
      which police officers must deal; (3) the inadequate training
      demonstrates a deliberate indifference on the part of the city towards
      persons with whom the police officers come into contact, and (4)
      there is a direct causal link between the constitutional deprivation
      and the inadequate training.

Id. at 841-42.

       The plaintiffs cannot satisfy the third element here. They contend that the

County’s policy on the use of deadly force reflects a deliberate indifference towards

Mr. Meyers because it authorized officers to use deadly force where such force is in

fact constitutionally prohibited. We reach the opposite conclusion. The relevant

portions of the policy are in accord with constitutional standards, making it impossible

to conclude that the policy reflects a deliberate indifference to constitutional rights.

The most relevant provision states that officers may use deadly force:

      To protect themselves or others when the deputies have probable

                                             10
      cause to believe that they or others are in danger of death or serious
      bodily harm and that the use of deadly force is reasonably necessary
      to protect themselves or others.

Appellants’ App. Ex. J at 2. The evidence is undisputed that the officers did not resort

to deadly force until they announced themselves as police and found Mr. Myers aiming

his firearm in their direction. The County policy was well within constitutional bounds

in authorizing the use of deadly force at that point. See Tennessee v. Garner, 471 U.S.

1, 11 (1985) (stating that deadly force may be used if an "officer has probable cause to

believe that the suspect poses a threat of serious physical harm, either to the officer or

to others"); Romero v. Board of County Comm'rs, 60 F.3d 702, 704 (10th Cir. 1995)

("An officer's use of deadly force in self-defense is not constitutionally

unreasonable."), cert. denied, 116 S. Ct. 776 (1996). There is no reasonable inference

that the relevant portion of the County policy demonstrated a “deliberate indifference”

to the rights of Mr. Myers and others in his situation.

       The plaintiffs’ stronger argument is that the moving force behind the alleged

constitutional violation was not the County’s policy on force, but the minimal amount

of training on dealing with armed persons who are suicidal, mentally ill, and/or

substance abusers. The plaintiffs argue that the County’s lack of a policy on handling

situations involving armed suicidal or mentally ill persons demonstrated a deliberate

indifference towards those persons, and the lack of a policy led the officers to

unreasonably enter the apartment and create the need to use force against Mr. Myers.


                                             11
       The record, however, does not create a reasonable inference that the County’s

policy, or lack thereof, on dealing with armed, suicidal persons amounts to deliberate

indifference towards those persons. The record contains the County’s voluminous

training materials relating to the mentally ill, portions of which deal with suicide

prevention and substance abuse. See Appellants’. App. Ex. K. Furthermore, contrary

to the plaintiffs’ assertions, the training records of the officers involved in this incident

demonstrate that they received training in this area. See Appellants’. App. Ex. M

(training records). The plaintiffs submitted no evidence demonstrating that the

County’s policy showed deliberate indifference towards mentally ill or suicidal

persons. The only evidence to that effect in the record before us is a deposition of the

plaintiffs’ expert, which was not before the district court when it made its decision on

summary judgment. In reviewing a grant of summary judgment, we do not consider

materials not before the district court. See John Hancock Mut. Life Ins. Co. v.

Weisman, 27 F.3d 500, 506 (10th Cir. 1994).

                      b. Actions of Sheriff Sharp as County Policy

       The plaintiffs make one brief additional argument that County policies are

responsible for the alleged constitutional harm to Mr. Myers. According to the

plaintiffs, the actions and directives of Sheriff Sharp represented County policy, and

therefore the County is liable for the constitutional harm that arose from his actions. It

is true that “municipal liability under § 1983 attaches where . . . a deliberate choice to


                                              12
follow a course of action is made from among various alternatives by the official or

officials responsible for establishing final policy with respect to the subject matter in

question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); id. at 481 (“If the

decision to adopt [a] particular course of action is properly made by [the] government's

authorized decisionmakers, it surely represents an act of official government 'policy' as

that term is commonly understood.”).

       The defendants do not deny that Sheriff Sharp, as the supervising law

enforcement officer, was a final policymaker with respect to the decision to enter the

apartment. See id. at 483 n.12 (offering sheriffs as examples of official policymakers

with respect to law enforcement activities). Thus, there is no dispute in this case that

the County, through Sheriff Sharp, was the “moving force” behind the decision to enter

the apartment. If that decision—the decision to enter the apartment—resulted in a

constitutional violation, the County would be liable. The decision to enter the

apartment itself—as opposed to the decisions that occurred once the officers were

inside the apartment, which the Sheriff did not direct and for which the County is not

responsible—cannot be the basis of an excessive force claim in this case.

       All claims of excessive force are “analyzed under the Fourth Amendment and

its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”

Graham v. Connor, 490 U.S. 386, 395 (1989). The pertinent question is whether

Sheriff Sharp’s decision to order the officers into the apartment was objectively


                                             13
reasonable in light of the facts and circumstances confronting them. See id. at 397.

“The excessive force inquiry includes not only the officers’ actions at the moment that

the threat was presented, but also may include their actions in the moments leading up

to the suspect’s threat of force.” Allen at 119 F.3d at 840. We must therefore

determine whether the facts support an inference that the decision to enter the

apartment unreasonably created the need to use such force. See Sevier v. City of

Lawrence, 60 F.3d 695, 699 (10th Cir. 1995); see also Alexander v. City and County of

San Francisco, 29 F.3d 1355, 1366-67 (9th Cir. 1994) (analyzing claim of excessive

force). In doing so, we bear in mind that actions leading to a confrontation, such as the

decision to enter the apartment, must be more than merely negligent to be

“unreasonable” for purposes of the Fourth Amendment inquiry. See Sevier, 60 F.3d at

699.

       The decision to enter the apartment was reasonable as a matter of law. The

officers had spent hours attempting to resolve the situation through non-confrontational

communication with Mr. Myers, to no avail. They had secured a court order

authorizing them to take Mr. Myers into protective custody. They entered the

apartment in order to execute that order. These factors all point to the reasonableness

of their conduct. Cf. Medrano v. City of Los Angeles, 973 F.2d 1499, 1504 (9th Cir.

1992) (finding officer’s decision to enter a bathroom reasonable where the person

inside was suffering from drug overdose, he could not be talked into leaving, and he


                                            14
was apparently unconscious at the time of entry). There is no evidence in the record to

suggest the decision to enter was an instance of the use of excessive force.

       B.     The Eighth Amendment Claim

       In addition to the Fourth Amendment arguments, the plaintiffs also allege that

the County violated the Eighth Amendment by failing to provide attention to Mr.

Myers’s serious medical needs. In the context of a prison setting, the Eighth

Amendment right to medical care is violated if (1) prison officials manifest a deliberate

indifference to an individual’s medical needs, and those needs are serious. See Wilson

v. Seiter, 501 U.S. 294, 297 (1991) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Although the Eighth Amendment applies only to convicted inmates, the Fourteenth

Amendment’s Due Process Clause guarantees pretrial detainees the same degree of

medical attention as the Eighth Amendment provides for inmates. See Martin v. Board

of County Comm’rs, 909 F.2d 402, 406 (10th Cir. 1990). Even assuming that Mr.

Myers was a “pretrial detainee” and that Eighth and Fourteenth Amendment standards

were violated by the officers in this case, summary judgment in favor of the County

nonetheless was appropriate.

       As we noted above, in order to hold a municipality liable for an employee’s

constitutional violations, a plaintiff must show not only that a constitutional violation

occurred, but also that some municipal policy or custom was the moving force behind

the violation. See City of Canton, 489 U.S. at 385. The record is simply devoid of any


                                             15
evidence showing that a County policy was the moving force behind the alleged

constitutional violation. Thus, we affirm the district court’s grant of summary

judgment on the Eighth Amendment claim.

III.   State Tort Claims

       In addition to filing claims for relief under section 1983, the plaintiffs also sued

the County for violations of Oklahoma state tort law. The district court found that the

County was immune from tort liability under various provisions of the Oklahoma

Governmental Tort Claims Act, OKLA. STAT. ANN. tit. 51, § 155 (West Supp. 1997).

The plaintiffs’ appeal of this decision presents a question of statutory interpretation that

we review de novo. See Duke v. Department of Agriculture, 131 F.3d 1407, 1409

(10th Cir. 1997) (reviewing question of government immunity under the Federal Tort

Claims Act de novo). We agree with the district court that at least one provision of the

Oklahoma Tort Claims Act provides immunity for the County. Therefore, we uphold

the district court’s decision.

       The relevant provision of the Oklahoma Tort Claims Act provides that:

       The state or a political subdivision shall not be liable if a loss or claims
       results from:
       ...
       (6) . . . the failure to provide, or the method of providing, police, law
       enforcement or fire protection.


OKLA. STAT. ANN. tit. 51, § 155(6) (West Supp. 1997). The Oklahoma Supreme Court

recently addressed the same situation presented in this case and held that immunity

                                             16
attaches. In Schmidt v. Grady County, 943 P.2d 595, 597-98 (Okla. 1997), a police

officer took a woman into custody in order to prevent her from harming herself or

others. The officer placed the woman in his patrol car. The officer did not restrain the

woman with a seatbelt or handcuffs, and on the way to the station the woman sustained

injuries when she either jumped or fell from the police car. See id. at 596. The woman

sued in federal district court, and the district court certified the following question to

the Oklahoma Supreme Court:

      Does Section 155(6) of Title 51 of the Oklahoma Statutes immunize
      a political subdivision from liability for damages for personal
      injuries an individual sustained as a result of a negligent act or
      omission of the political subdivision’s law enforcement personnel
      while acting within the scope of their employment in taking the
      individual into protective custody and transporting her to county jail?

Id. at 596. Grady answered the question affirmatively, holding that under section

155(6) a county is immune from liability arising from the negligent acts of its

employees in taking individuals into protective custody. See id. at 598. In this case, as

in Grady, we are concerned with an act committed by law enforcement personnel while

attempting to take an individual—Mr. Myers— into protective custody. Grady is

indistinguishable from this case, and its holding controls us here. Therefore, even if

the officers had committed the alleged torts, the County would be immune under

Grady.




                                             17
                                      Conclusion

       The evidence in this case provides no reasonable basis for determining that

County policies caused the alleged constitutional injuries of Mr. Myers. Furthermore,

Oklahoma’s Governmental Tort Claims Act immunizes the County from tort liability

for the officers’ actions in the death of Tom Myers.

       We AFFIRM.




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