611 (1978), the Supreme Court construed § 1983 to include municipalities as possible defendants. However, the Court made clear that liability may not be imposed under a Respondeat superior theory, that is, merely because the city employs a tortfeasor. Id. at 691-92, 98 S. Ct. 2018. See also Hampton v. Holmesburg Prison Officials, supra at 1082. Instead, liability must be based upon an official policy or custom which causes the injury. Monell, supra 436 U.S. at 694, 98 S. Ct. 2018.
Recognizing this principle, plaintiff argues that her theory of liability as to the city is direct misfeasance or nonfeasance in failing to train, supervise, and review and discipline members of the police force. Plaintiff further argues that deposition testimony indicates that the city's conduct is so inadequate as to amount to gross negligence or reckless disregard of public safety and constitutional deprivation. While the allegations in the complaint concerning the city are largely premised on Respondeat superior theory, Count V (incorporating Counts I and III which allege violation of § 1983), may be construed to allege the direct liability theories.
The Monell Court cited Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976), for the principle that a city may not be held vicariously liable. Therefore, although Rizzo involved injunctive relief and not damages as in the instant case, it is relevant in analyzing what actions of the city subject it to liability under § 1983.
The Supreme Court in Rizzo held that defendant municipalities and supervisory personnel cannot be found liable for civil rights violations perpetrated by individual police officers absent an "affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by (the defendants) express or otherwise showing their authorization or approval of such misconduct." Id. at 371, 96 S. Ct. at 604. The finding of fact in Rizzo that the instances of police misconduct were not rare or isolated was not enough to establish the "causal connection" between the defendants and the constitutional violations. See also Lewis v. Hyland, 554 F.2d 93, 101 (3rd Cir.), Cert. denied, 434 U.S. 931, 98 S. Ct. 419, 54 L. Ed. 2d 291 (1977) (an "unfortunate insensitivity" on the part of supervisory personnel to constitutional violations by state police did not establish "causal link" needed to support injunctive relief against supervisors).
Thus, according to Monell and Rizzo, to establish municipal liability, a plaintiff must prove either (a) an official policy or custom which results in constitutional violations or (b) conduct by officials in authority evincing implicit authorization or approval or acquiescence in the unconstitutional conduct. Where a city's failure to train, supervise or discipline police officers is reckless or grossly negligent, it may fall into one of these categories and serve as the basis for holding a city liable under § 1983. See, e.g., Leite v. City of Providence, supra ; Schweiker v. Gordon, supra ; Jones v. McElroy, supra ; Perry v. Elrod, 436 F. Supp. 299 (N.D.Ill.1977).
Recently, the Second Circuit Court of Appeals, reversing the district court, relied on Leite, supra, and held that where a county's supervision and training of police is so severely deficient as to reach the level of gross negligence or deliberate indifference to deprivation of constitutional rights, the county could be subject to liability consistent with Monell and Rizzo, supra. Owens v. Haas, 601 F.2d 1242 (1979).
This court agrees that municipal liability under § 1983 can be established under these circumstances. This is consistent with our conclusion that the liability of the individual police officer may be premised only upon gross negligence, in the absence of intent to injure the plaintiff. It remains to determine if there is an issue of fact as to such conduct by the City of Margate in this case. Defendant contends in its reply brief that the deposition testimony and exhibits to which plaintiff points demonstrate at most only simple negligence.
First, as to the allegations of failure to train and supervise, Leite, supra, indicates that a complete failure to train would qualify, as would training that is so reckless or grossly negligent as to make future police misconduct almost inevitable. "The training and supervising of these police officers must be so inadequate and the resulting conduct so probable, that the city can fairly be considered to have acquiesced in the probability of serious police misconduct." Id. at 591. This court adopts the Leite standard, construing it to require of plaintiff proof of extremely inadequate procedures. We reject the Second Circuit's recently expressed view that a single brutal incident such as the one which gives rise to the suit is alone sufficient to establish a city's liability. Owens v. Haas, supra, at 1246.
In the instant case, the court finds that the deposition testimony as well as the answers to interrogatories, which we read in the light most favorable to plaintiff as we must on a motion for summary judgment, create a genuine question of fact as to whether the City of Margate's police department training and supervision procedures were grossly inadequate. While police officers receive training at the State Police Academy in Sea Girt, New Jersey, when they first join the force, in Biagi's case that was ten years prior to the shooting incident.
The only continuing training was shooting instruction approximately every six months at a range in Atlantic County. However, there was no instruction on shooting at a moving target, night shooting, or shooting in residential areas. Margate is almost completely residential. The possibility that a Margate police officer will in the course of his duties have to chase a suspect in a residential area at night is not in the least remote; therefore, a finder of fact could determine that the City of Margate's training of officers regarding shooting was grossly inadequate within the Leite standard. Furthermore, the officers viewed no films or participated in any simulations designed to teach them how the state law, city regulations or policies on shooting applied in practice.
As to supervision, there was only one meeting to explain to officers the city's regulation on shooting. This was at the time it was adopted, about two years before this incident. The instructors at the shooting range may have discussed the rules, but not in any detail. Indeed, based on the deposition testimony, there could be a conflict between Officer Kertz's understanding of the city regulation on shooting and that of Chief Creaghe. This might indicate to a finder of fact that there was inadequate communication to officers of the city's policy and rules on this subject.
Also, Chief Creaghe's testimony, viewed in the light most favorable to plaintiff, might indicate that he considered the rules on firing in residential streets a matter of mere "common sense" requiring no detailed explanation. This evidence could be found by a finder of fact to demonstrate grossly inadequate supervision.
Finally, regarding discipline of officers, the rule is that where a city's procedure of reprimand is so inadequate as to ratify unconstitutional conduct, the city may be liable under § 1983. A police chief's persistent failure to discipline or control subordinates in the face of knowledge of their propensity for improper use of force may constitute an official custom or De facto policy, actionable under § 1983. See Sims v. Adams, 537 F.2d 829 (5th Cir. 1976); Cook v. City of Miami, supra ; Smith v. Ambrogio, 456 F. Supp. 1130 (D.Conn.1978); Schweiker v. Gordon, supra ; Perry v. Elrod, supra ; Moon v. Winfield, 383 F. Supp. 31 (N.D.Ill.1974).
In Margate, every police shooting incident was referred to the Atlantic County prosecutor's office for possible action. There is a reasonable inference which may be drawn from the evidence that this was a grossly inadequate method of maintaining proper standards in the police department. The evidence shows no instance in which a prosecution actually resulted, and indeed the grand jury refused to indict Biagi based upon this shooting incident. But while an officer's conduct may not be criminally actionable under state law, it may have caused a constitutional deprivation and therefore require reprimand or other punitive administrative action.
The depositions and answers to interrogatories reveal that there was no department investigation or reprimand procedure which resulted in any punishment of police officers. Chief Creaghe indicated that Biagi was reprimanded after one prior shooting incident, but his record contains no such notation. Biagi has never suffered any disciplinary action whatsoever based upon the shooting incident which is the subject of this suit or two prior shooting incidents in which he was involved. Chief Creaghe knew of these prior incidents, in 1972 and 1974, and he acknowledges that Biagi's conduct in the earlier one was wrongful. They are close enough in time and substantial enough to create an issue of fact concerning the city's failure to control in the face of knowledge of past culpable conduct. Compare Chestnut v. City of Quincy, 513 F.2d 91 (5th Cir. 1972) with Moon v. Winfield, supra. From all this evidence, a finder of fact could conclude that the city's practices were so grossly inadequate as to give police officers the idea that their unconstitutional conduct would have no substantial adverse consequences for them.
Accordingly, summary judgment is denied as to the City of Margate on the § 1983 claims, and the court will exercise its discretionary pendent jurisdiction over the state tort law claims.