                     REVISED - August 3, 1999

                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                         __________________

                           No. 98-10357
                        __________________

     DANETTE HOPE GROS; EDITH D SIKES,

                                         Plaintiffs - Appellants,
                                v.

     THE CITY OF GRAND PRAIRIE, TEXAS, ET AL,

                                      Defendants,

     THE CITY OF GRAND PRAIRIE, TEXAS; HARRY L CRUM;
     RICHARD L BENDER,

                                     Defendants - Appellees.
         ______________________________________________

          Appeal from the United States District Court
               for the Northern District of Texas
         ______________________________________________
                          July 14, 1999

Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

     Dannette Hope Gros and Edith D. Sikes appeal from an adverse

summary judgment order dismissing their 42 U.S.C. § 1983 claims

against the City of Grand Prairie, Texas (the “City”); Harry

Crum, the Chief of the City of Grand Prairie Police Department

(“GPPD”); and Richard L. Bender, the GPPD’s officer in charge of

internal affairs (collectively, “Municipal Defendants”).    Because

we find that the district court applied improper legal standards

in its summary judgment order, we vacate and remand for further

consideration.



     This suit grew out of allegations by Gros and Sikes that
Eric Rogers, a former GPPD officer, physically, sexually, and

verbally abused them.   Gros contends that during a routine

traffic stop in August 1995, Officer Rogers used excessive and

improper force against her, including grabbing her breast and

placing her in the back of his squad car on a hot day with the

windows closed.   Sikes asserts that Rogers, while responding to a

call in February 1996, sexually abused her by grabbing her breast

and placing his hand in her pants.   Both Gros and Sikes filed

complaints with the GPPD Internal Affairs Department.   Sikes also

testified before a grand jury which indicted Officer Rogers on

charges of “official oppression.”    Rogers was terminated by the

GPPD following an internal investigation.

     Gros and Sikes filed a complaint in October 1996 against

Officer Rogers and the Municipal Defendants1 in the United States

District Court for the Northern District of Texas.   They asserted

several causes of action under 42 U.S.C. § 1983 for violations of

their Fourth Amendment and Fourteenth Amendment rights.   In the

only cause of action directed at the City, Gros and Sikes listed
forty-one ways in which the City “as a matter of policy, practice

and/or custom has acted in reckless, callous and deliberate

indifference to [Gros and Sikes’s] constitutional rights.”    They

included numerous alleged deficiencies in the hiring, training,

and disciplining of police officers in general, and of Officer



     1
      The original complaint listed only Rogers and the City of
Grand Prairie as defendants. That complaint was amended in July
1997 to include the other Municipal Defendants, Harry Crum and
Richard Bender, as additional defendants.

                                 2
Rogers specifically.

     In August 1997, the Municipal Defendants filed a motion for

summary judgment.   Gros and Sikes argued that summary judgment

was inappropriate because there was sufficient evidence that “the

City of Grand Prairie itself caused the deprivation of [Gros and

Sikes’s] constitutional rights through policies and customs which

were an intentional choice by the final policymaking authority,

Chief Crum.”   On February 23, 1998, District Judge Fitzwater

entered an order granting the Municpal Defendants’ motion and

dismissing all of Gros and Sikes’s claims against the City and

all of their official-capacity claims against Crum and Bender.

The court found that the City was not liable under § 1983 because

Gros and Sikes had failed to show that Crum possessed final

policymaking authority over the GPPD’s policies.   The court

dismissed the official-capacity claims against Crum and Bender on

the same basis.   We now consider the timely appeal by Gros and

Sikes of that order.

                            DISCUSSION
     Gros and Sikes contend on appeal that the district court

erred in finding that the City of Grand Prairie could not be held

liable for Chief Crum’s decisions to enact or ratify the GPPD’s

alleged unconstitutional policies and customs.   Under 42 U.S.C.

§ 1983, a municipality cannot be held vicariously liable for the

constitutional torts of its employees or agents.   See Monell v.

Department of Social Services, 436 U.S. 638, 694 (1978).

Liability arises only when the execution of an official policy or


                                 3
custom of the municipality causes the constitutional injury.      See

id.   A policy or custom becomes official for purposes of § 1983

when it results from the decision or acquiescence of the

municipal officer or body with “final policymaking authority”

over the subject matter of the offending policy.     Jett v. Dallas

Independent School District, 491 U.S. 701, 737 (1989).     Thus, the

City of Grand Prairie could be liable for the decisions of Chief

Crum if Crum was the City’s final policymaking authority over the

areas in which the decisions were made.
      In reaching its conclusion that Chief Crum did not have

final policymaking authority over the GPPD’s hiring, training, or

discipline policies, the district court employed two legal

principles.   First, it found that the ultimate policymaking

authority did not reside with Chief Crum because “[a]bsent

contrary evidence, the court must assume that policymaking

authority resides with the City’s governing body.”    Second, the

court stated that Gros and Sikes could nonetheless survive

summary judgment if “there is an issue of material fact whether
policymaking authority has been delegated to Chief Crum.”    On the

basis of these two legal precepts, and its finding that “a

reasonable trier of fact could not find that final policymaking

authority has been delegated by the City’s governing body to

Chief Crum,” the district court granted summary judgment to the

Municipal Defendants.

      Appellants contend that the district court used the wrong

legal standards in granting summary judgment.   As recognized by


                                 4
the district court in its decision, the Supreme Court has evinced

no preference for any single body as the source of municipal

policymaking authority.    See Pembaur v. City of Cincinnati, 475

U.S. 469, 480 (1986) (instructing that final policymaking

authority “is no more the exclusive province of the legislature

at the local level than at the state or national level”).

Instead, the Court has remarked that “one may expect to find a

rich variety of ways in which the power of [local] government is

distributed among a host of different officials and official

bodies.”    City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25

(1988).    The Court has also rejected the need for establishing

any default final policymaker, finding that “state law . . . will

always direct a court to some official or body that has the

responsibility for making law or setting policy in any given area

of a local government’s business.”     Id. at 125 (emphasis added).

To the extent that the district court relied upon a presumption

concerning the locus of final policymaking authority in the City

of Grand Prairie instead of looking to state law as the sole

determinant, we find that it erred.

     In this regard, we note that there was legal authority

available to assist the district court in determining which of

the City’s officials or bodies possessed final policymaking

authority over the GPPD policies.     The sources of state law which

should be used to discern which municipal officials possess final

policymaking authority are “state and local positive law, as well

as ‘custom or usage’ having the force of law.”     Jett, 491 U.S. at


                                  5
737 (internal quotation omitted).    In this case, each of those

sources were available.   First, Chief Crum’s testimony in the

record refers repeatedly to the City of Grand Prairie Civil

Service Commission.   In a Texas municipality with a population

between 10,000 and 1.5 million, the creation of a police civil

service commission must be approved by the municipality’s voters.

 See Tex. Loc. Gov’t Code Ann. § 143.002 (1999 Supp.).    The

commission is then empowered under the Texas Local Government

Code to make and review certain decisions regarding the hiring

and disciplining of police officers.     See id. § 143.001 et seq.

There are thus questions of local and state positive law whether

a Grand Prairie Civil Service Commission was adopted by the Grand

Prairie voters and whether that commission, instead of the City’s

governing body or Chief Crum, was the final policymaking

authority over the GPPD’s hiring or discipline policies.     Second,

Gros and Sikes submitted to the district court affidavits or

depositions of at least five members of the GPPD, including three

depositions of Chief Crum.   In these depositions, Chief Crum and
the other officers were questioned at length concerning the

methods by which the GPPD’s hiring, training, and discipline

policies were created and implemented.     Their testimony indicated

that Chief Crum, the city manager, and the civil service

commission each played a role in the formation of GPPD policy.2


    2
     Although we are remanding to allow the district court to make
the first assessment of these legal sources, we do note our
disagreement with the dissent’s assertion that Chief Crum’s
deposition testimony “conclusively negates” the possibility that
Crum was the final policymaking authority over any of the GPPD’s

                                 6
Those depositions were available to the district court as

potential evidence of municipal customs or usages having the

force of state law.   It was thus incumbent upon the district

court to consider state and local positive law as well as

evidence of the City’s customs and usages in determining which

City officials or bodies had final policymaking authority over

the policies at issue in this case.

     We also disagree with the district court’s assertion that

even if Chief Crum did not possess final policymaking authority

as a matter of state law, Gros and Sikes could nonetheless

survive summary judgment if there was an issue of material fact

whether Crum had been delegated final policymaking authority.    In

Jett v. Dallas Independent School District, 491 U.S. 701 (1989),

the Supreme Court established that whether an official has been

delegated final policymaking authority is a question of law for

the judge, not of fact for the jury.   See id. at 737 (“[T]he



policies.    Crum’s testimony was, at best, conflicting.         He
characterized the city manager as his “boss,” but also described
the chief of police’s “overall responsibility” as “setting policy
or approving policy in the department.” Crum also stated that some
of his decisions were subject to review by the city manager or the
civil service commission, but then agreed that their review in some
areas was no more than a “rubberstamp.”     The Supreme Court has
rejected the principle of a “de facto” policymaker.             See
Praprotnik, 485 U.S. at 131.      Nonetheless, absent a contrary
regulation or ordinance, a city council’s or city manager’s
continuous refusal to exercise some theoretical authority to review
a municipal official’s policy decisions will, at some point,
establish the municipal official as the final policymaking
authority by custom or usage having the force of state law. We
leave to the district court’s initial determination whether the
city manager had any authority to review Chief Crum’s decisions
and, if so, whether the point was reached where his failure to
exercise that authority became a custom or usage.

                                 7
identification of those officials whose decisions represent the

official policy of the local governmental unit is itself a legal

question to be resolved by the trial judge before the case is

submitted to the jury.”)   On remand, this court interpreted that

instruction as including, as questions of law for the court,

determinations whether final policymaking authority has been

delegated.   See Jett v. Dallas Independent School District, 7

F.3d 1241, 1248-49 (5th Cir. 1993) (determining that, as a

question of law, final policymaking authority had not been

delegated from school board to superintendent of schools).     Based

upon the Supreme Court’s decision in Jett and our interpretation

of that decision on remand, it was error for the district court

to analyze whether Chief Crum had been delegated final

policymaking authority as a question of fact for the jury.

Instead, the district court should have determined whether any

such delegation had occurred as a matter of state law.

                            CONCLUSION

     We vacate the district court’s grant of summary judgment

based upon our conclusion that the court relied upon erroneous

legal standards in determining whether the City of Grand Prairie

can be held liable under 42 U.S.C. § 1983 for the alleged

constitutional violations of its chief of police, Harry Crum.

Because the district court is better suited than this court to

make a first determination of whether state law entrusted Chief

Crum with the final policymaking authority that could establish

the City’s § 1983 liability, we remand this case for further


                                 8
proceedings consistent with this decision.   Furthermore, because

the record does not reveal that the parties formulated arguments

to the district court concerning the sources of state law

impacting upon the locus of policymaking authority over the GPPD,

the district court should allow them an opportunity to present

such arguments on remand.

     VACATED and REMANDED.




KING, Chief Judge, dissenting:

     Because I am convinced that the district court properly

applied the correct legal standards to the facts of this case, I

respectfully dissent from the majority’s decision to vacate and

remand the grant of summary judgment in favor of the City.

     Gros and Sikes based their claim for municipal liability on

the theory that their injuries were proximately caused by the

City’s policy of (1) failing to adequately screen, train,

supervise, and discipline police officers, including Rogers;

(2) failing to adequately investigate complaints against

officers, including Rogers; and (3) permitting officers to

violate citizens’ constitutional rights.   It is well-settled that

a local governmental body such as the City of Grand Prairie is

liable for damages under § 1983 for constitutional violations

resulting from official city policy.   See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 690-91 (1978).   This circuit has defined an


                                 9
official policy for whose execution a local government may be

found liable as:

     .     A policy statement, ordinance, regulation, or decision
           that is officially adopted and promulgated by the
           municipality’s lawmaking officers or by an official to
           whom the lawmakers have delegated policy-making
           authority; or

     .     A persistent, widespread practice of city officials or
           employees, which, although not authorized by officially
           adopted and promulgated policy, is so common and well
           settled as to constitute a custom that fairly
           represents municipal policy. Actual or constructive
           knowledge of such custom must be attributable to the
           governing body of the municipality or to an official to
           whom that body had delegated policymaking authority.



Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (quoting

Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en

banc)).    Under this framework, a city is liable only if the

policy or practice of which the plaintiffs complain is

attributable to an entity with policymaking authority.            See

Monell, 436 U.S. at 694.     Whether a particular official has final

policymaking authority is a question of state law, and the

identification of those officials whose decisions represent the

official policy of the local governmental unit is itself a legal

question to be resolved by the trial judge before the case is

submitted to the jury.     See Jett v. Dallas Indep. Sch. Dist., 491

U.S. 701, 737 (1989); see also COMMITTEE    ON   PATTERN JURY INSTRUCTIONS,

FIFTH CIRCUIT, PATTERN JURY INSTRUCTIONS (CIVIL CASES), Instruction 10.3,

at 120 (1997) (“The [mayor/city council] is an official whose

acts constitute final official policy of the City of _____.

Therefore, if you find that the acts of the [mayor/city council]

                                   10
deprived the plaintiff of constitutional rights, the City of

_____ is liable for such deprivations.”).    Moreover, state law,

which includes valid local ordinances and regulations, will

“always direct a court to some official or body that has the

responsibility for making law or setting policies in any given

area of a local government’s business.”     City of St. Louis v.

Praprotnik, 485 U.S. 112, 125 (1988) (plurality opinion)

(footnote omitted).    Consequently, a federal court “would not be

justified in assuming that municipal policymaking authority lies



somewhere other than where the applicable law purports to put

it.”    Id. at 126.

       The district court applied the correct legal standards.     The

majority first faults the district court for asserting that

“[a]bsent contrary evidence, the court must assume that

policymaking authority resides with the City’s governing body.”

At the same time, however, the district court explicitly

recognized that state law will always direct the court to an

official or body responsible for making law or setting policy,

see Praprotnik, 485 U.S. at 125-26.    And, although it said that

“[t]o survive summary judgment, Gros and Sikes must establish

that there is an issue of material fact whether policymaking

authority has been delegated to Chief Crum,” it also acknowledged

that the identification of a municipal policymaker is a question

of law to be decided by the trial judge, see Jett, 491 U.S. at

737.    Contrary to the majority’s assertion that the district


                                 11
court “analyze[d] whether Chief Crum had been delegated final

policymaking authority as a question of fact for the jury,” the

district court never suggested that delegation is a question “for

the jury.”   I interpret the district court as simply holding that

under Texas law, final policymaking authority rests with the

City’s governing body and that, on this record, such authority

had not been delegated to Chief Crum.

     This conclusion that Chief Crum was not the City’s

policymaking authority with respect to the hiring, training, and

disciplining of police officers, the investigation of complaints

against officers, and the protection of citizens’ constitutional

rights is correct.   That an official possesses decisionmaking

authority does not necessarily mean that he also has policymaking

authority.   See Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241,

1246 (5th Cir. 1993).   Rather, as we have recognized,

     policymaking authority is more than discretion, and it is
     far more than the final say-so, as a matter of practice, on
     what water main will be replaced today and whether a
     building meets city construction standards. City
     policymakers not only govern conduct; they decide the goals
     for a particular city function and devise the means of
     achieving those goals. Policymakers act in the place of the
     governing body in the area of their responsibility; they are
     not supervised except as to the totality of their
     performance.

Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir. 1984) (en

banc).   Although policymaking authority may be shared, an entity

whose decisions are reviewable is not a policymaker whose acts

can subject the municipality to liability.   See Praprotnik, 485

U.S. at 126 (“Assuming that applicable law does not make the

decisions of the Commission reviewable by the Mayor and Aldermen,

                                12
or vice versa, one would have to conclude that policy decisions

made either by the Mayor and Aldermen or by the Commission would

be attributable to the city itself.”).

     Far from showing that he was a policymaker, Chief Crum’s

deposition testimony conclusively negates that possibility.

Chief Crum testified that the city manager, whom he described as

his “boss,” was the ultimate policymaking authority with respect

to officer hiring and grievance procedures, that the city civil

service commission could overrule him on matters of officer

discipline, and that he was not the final policymaking authority

for the City in regard to investigating complaints against

officers.   Although he stated that he was the final policymaking

authority with respect to training officers, he admitted in a

deposition in another case, which Gros and Sikes attached as an

exhibit to their response to the Municipal Defendants’ motion for

summary judgment, that the city manager and civil service

commission were the ultimate authorities with respect to the

policies of the GPPD:

     Q. So with regard to the issuance of the policies that
     govern and control the Grand Prairie Police Department you
     are the individual with the responsibility and duty to issue
     those policies, correct?

     A.   Not the ultimate, ma’am.

     Q.   Who is the ultimate, sir?

     A. Well, they’re subject to review by the city manager;
     they are subject to review by the Civil Service Commission.
     I assume that they could be reviewed by the council but that
     typically to my knowledge has never happened. It could but
     it never has that I’m aware of.

The following colloquy between Chief Crum and plaintiff’s counsel

                                13
took place at the same deposition:

     Q. And as far as approving the policies that are in effect
     at the Grand Prairie Police Department, even after you sign
     off on a policy does the council still have the authority to
     negate or disapprove of that policy?

     A.   Yes, they do.

Because the summary judgment evidence demonstrates that Chief

Crum was not the City’s policymaking authority with respect to

the GPPD, municipal liability may not be premised upon any policy

statement, ordinance, regulation, or decision adopted or

promulgated by him or upon a custom of which he had actual or

constructive knowledge.    Gros and Sikes point to no other

potential policymaker that adopted some policy or knew of a

custom that caused them harm.    Accordingly, I would hold that the

district court properly granted summary judgment on their § 1983

claims against the City.




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