Randy Webster, a seventeen year old Shreveport, Louisiana youth, stole a van from an auto dealership in southeast Houston, Texas by driving it through a showroom window. Almost immediately, members of the Houston Police Department began pursuit. After a dangerous, lengthy, high speed chase, the van was stopped. When Randy emerged from the van unarmed, Officers Mays and Olin began to hit him and pull his hair. In the scuffle, Officer Mays' pistol discharged. The bullet struck Randy in the head and hand. Randy died as a result of these wounds. A fellow officer provided Mays with a "throw down weapon" to place next to Randy's body to make it appear that he had been armed. All police officers at the scene who later gave statements falsely declared that Randy was armed. The internal investigation of the shooting conducted by the Houston Police Department exonerated the officers, despite the statement of at least one first hand witness, a cab driver, that Randy was unarmed. Only after the youth's parents provoked a federal investigation of the incident over a year later did the true story emerge.
That's from the majority opinion on the appeal of a jury finding of liability on the part of the City of Houston. The court overturned that jury finding.
It's interesting to contrast the language used to describe the factual situation with the language used in a written dissent of the ruling.
This case involves a shockingly heinous episode of police misconduct. Randall Allen Webster, 17 years old, stole a van from a Dodge dealership in southeast Houston, Texas, in the early morning of February 8, 1977. In a matter of minutes, Houston police officer Mays spotted the van and gave chase. Fellow officers Holloway and Olin, responding to Mays' radioed calls, joined in. The chase ended when Webster lost control of the van turning a corner, and it spun to a stop. The police officers left their patrol cars, ran up to the van, and ordered Webster out. Webster emerged from the van and was pushed or thrown to the ground by Mays and Olin. He had no gun and put up no resistance. Mays shot Webster once in the back of the head. The bullet passed through his head and inflicted a wound in his right hand.
Webster lay mortally wounded for some minutes where he had fallen. Other Houston police officers arrived. None of them attempted any care or first aid for the victim, who did not die until later that night while being transferred from one hospital to another. At the scene of the shooting, a plan to conceal the circumstances of the shooting was formulated. After some discussion the group of officers decided that to protect their fellow officer a weapon should be placed at Webster's side. Officer Byrd, among others, offered his "throw down"--an unregistered gun he carried in his patrol car.1 Someone laid the unloaded pistol next to Webster as he lay moribund at the scene.
The dissent goes on to discuss something that was ignored by the majority opinion.
We stress the importance of the fact that this is a case involving a custom of carrying and using throw down weapons that directly leads to the use of excessive force in arrests by covering up the use of excessive force, and the further cover up of the fact that a throw down weapon has been used. As is shown in the following part of the opinion, the existence of both of these aspects of the custom were convincingly demonstrated by the evidence in this case. Our recent en banc decision in Bennett v. City of Slidell, supra, is readily distinguishable. That case involved an isolated instance of actions taken against a citizen of the city for personal reasons by high ranking but nonpolicymaking public officials. We held in that case that no city policy was established under those facts. Bennett recognized, as we have earlier pointed out, that custom is a separate justification for holding a city and its officials responsible under Section 1983. Bennett raises the issue of the existence of an authoritative governmental policy. In contrast, this is a case which involves custom rather than policy. In Bennett, on its facts, a policy was found not to exist. In this case, on its facts, a custom was found to exist under a careful and fully adequate jury charge. The Bennett holding falls far short of controlling this case.
Finally, we stress the sub rosa nature of any custom which if widely known would be recognized by everyone but the self-served insiders as manifestly and overwhelmingly wrong. In such circumstances custom must properly be provable by evidence that a limited number of municipal employees follow the practice, or from evidence of fewer examples of such a practice. The usual high levels of persistency and pervasiveness cannot be required in these atypical cases because the risk of serious injury to the public is so great and because municipal employees would be expected to conclude, on fewer instances of such a practice or sooner after its inception, that reasonably diligent city policymakers must know about the practice and are willing to disregard it.
IV. The Custom
A careful and full reading of the trial transcript discloses ample evidence supporting the jury's finding that a policy or custom of the City caused deprivations of Webster's and his parents' federal constitutional and statutory rights. Of course, there is testimony from top police officials and other police denying any knowledge of or condoning the use of throw downs. Several officers testified they knew discovery of use of a throw down would lead to discipline. Admittedly, the evidence shows that written HPD rules specifically forbid excessive use of force, altering the scene of a crime, and concealment of improper police activity. These rules forbid all three of the improper actions in this case. But as we have pointed out and as Sec. 1983 has contemplated from its inception, a custom which violates the written law nevertheless can violate Sec. 1983.
The jury had a right to believe the evidence set out before while in the process of disbelieving conflicting testimony. The jury was entitled to discredit the above self-serving testimony and believe the strong evidence to the contrary.
The carrying of throw down weapons was an established custom among HPD police officers. The practice was widely acknowledged and frequently discussed. Former police lieutenant Dillon, one of the supervisory HPD officers at the scene of the shooting, testified that every officer on the force in 1977--"in my opinion ... one hundred percent"--understood the term "throw down." Former officer Holloway testified:
What [he and his partner] discussed was whether we should carry [a throw down weapon] or not.... I would go as far as to say ... and I have had regular partners before ... that most partners would discuss that, because it would be something that would be on your mind.
Holloway's partner, former officer Olin, agreed that they had discussed whether to carry and when to use a throw down weapon and that such weapons were "necessary evils." Former officer Estes agreed that he had learned about throw down weapons through shop talk and that they were the subject of common discussion in the force. In fact, former officer Byrd stated that "as far as the superiors, they don't directly condone it. They know it happens." This is borne out by Dillon's testimony that he had heard discussions of the use or potential use of throw down weapons among fellow officers.
It was brought out that as early as 1964 HPD instructors at the police academy, where new recruits are taught how to be officers of the law, had "casually mentioned" that an officer who happened to shoot an unarmed suspect "best have something to lay down" to protect himself. The jury heard testimony that the operation of the HPD property room was lax and casual. This testimony firmly supported a jury inference that officers were easily able to obtain the difficult-to-trace weapons stored there. Moreover, the nature and outcome of the grossly inadequate investigation of Webster's shooting, showed that officers using "throw downs" had a great likelihood of success. As brought out at trial, this investigation was in full accord with prevailing HPD policy. Yet the investigation turned up nothing suspicious about shooting a young man in the back of the head under a claim that he got out of a stolen van and pointed an unloaded gun at three armed policemen.
Read the whole decision -- both the ruling and the dissent. It's instructive.
Here's an article from the Buffalo Law Review (1999) that mentions the case.
Labels: police misconduct