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Murphy v. City of Tulsa

United States Court of Appeals, Tenth Circuit

December 16, 2019

MICHELLE DAWN MURPHY, Plaintiff - Appellant,
v.
THE CITY OF TULSA, Defendant-Appellee.

          Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 15-CV-528-GFK-FHM)

          John J. Carwile (Tara D. Zickefoose with him on the briefs), Baum Glass Jayne & Carwile PLLC, Tulsa, Oklahoma, on behalf of the Plaintiff-Appellant.

          T. Michelle McGrew (Kristina L. Gray with her on the briefs), Tulsa, Oklahoma, on behalf of the Defendant-Appellee.

          Before BACHARACH, McHUGH, and EID, Circuit Judges.

          BACHARACH, CIRCUIT JUDGE.

         This appeal grew out of the Tulsa Police Department's investigation into the murder of an infant. The police suspected the infant's mother, Ms. Michelle Murphy. Ms. Murphy ultimately confessed, but she later recanted and sued the City of Tulsa under 42 U.S.C. § 1983. The district court granted summary judgment to the City, concluding that Ms. Murphy had not presented evidence that would trigger municipal liability. We affirm.

         I. Ms. Murphy is convicted of murder after confessing in an allegedly coercive interrogation.

         Roughly 25 years ago, Ms. Murphy had two small children: an infant son and a little girl. The infant son was killed, and the police suspected Ms. Murphy. She ultimately confessed after allegedly being threatened that she'd never be able to see her little girl again.

         Ms. Murphy's confession led to her conviction for murder. After she had served roughly 20 years in prison, her conviction was vacated and the case was dismissed with prejudice.

         II. Ms. Murphy sues the City, which obtains summary judgment based on a failure to prove a basis for municipal liability.

         Ms. Murphy sued the City of Tulsa under 42 U.S.C. § 1983, claiming that

• a police officer had violated the Constitution by coercing her confession and
• the City of Tulsa had incurred liability for that constitutional violation.

         The district court concluded that the City could not incur liability because the constitutional violation had not resulted from an unlawful policy or custom.[1] Given this conclusion, the district court granted summary judgment to the City.

         III. Our review is de novo.

         We engage in de novo review, "drawing all reasonable inferences and resolving all factual disputes in favor of [Ms. Murphy]." Yousufv. Cohlmia, 741 F.3d 31, 37 (10th Cir. 2014). With these favorable inferences, we consider whether the City of Tulsa has shown the lack of a genuine dispute of material fact and the City's entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(a).

         IV. No municipal policy or custom authorized police officers to threaten citizens during interrogations.

         Municipalities can incur liability for their employees' constitutional torts only if those torts resulted from a municipal policy or custom. Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993). Five potential sources exist for a municipal policy or custom:

1. a "formal regulation or policy statement, "
2. an informal custom amounting to a "widespread practice that, although not authorized by a written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law, "
3. the decision of a municipal employee with final policymaking authority,
4. a policymaker's ratification of a subordinate employee's action, and
5. a failure to train or supervise employees.

Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quotation marks omitted).

         Ms. Murphy relies on each potential source of municipal liability. In our view, however, Ms. Murphy failed to present evidence supporting municipal liability under any of the five sources.[2]

         A. No formal regulation or policy statement authorized police officers to make threats.

         Official policies can exist through municipalities' "formal rules or understandings." Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). These formal rules or understandings are "often but not always committed to writing" and "establish fixed plans of action to be followed under similar circumstances consistently and over time." Id.

         Ms. Murphy argues that a formal rule authorized officers to use threats, pointing to

• a former police chief's testimony that police officers could decide for themselves what kinds of threats to use during interrogations and
• the City's alleged abandonment of a prohibition against threats in interrogations.

         But Ms. Murphy failed to properly support these arguments in district court.

         1. Ms. Murphy did not properly present the district court with the former police chief's testimony about the permissibility of threats.

         An official policy exists only if it came from a final policymaker. Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir. 2010). The parties agree that the only final policymaker here is the former police chief, and Ms. Murphy relies on his testimony. But Ms. Murphy didn't properly present the district court with the pertinent part of this testimony. Ms. Murphy's error wasn't merely technical. The district court might have discovered the pertinent part of the testimony only by trudging without guidance through 1540 pages of exhibits.

         Ms. Murphy relies here on this excerpt from the former police chief's testimony:

Q. [The sergeant] further testified that the interrogator had the full authority of the Tulsa Police Department to decide what touching of the suspect would occur. Do you agree with that testimony?
A. I believe there were guidelines about no sexual touching. I mean, that would be a violation of law. But touching a suspect is not specifically prohibited.
Q. [The sergeant] further testified that an interrogator had the full authority of the Tulsa Police Department to decide what kind of threats to make. Do you agree with that testimony?
A. They would have.

         Appellant's App'x, vol. 10, at 2680, 2729. But this excerpt was not properly presented to the district court.[3]

         Though our review of a summary-judgment grant is de novo, "we conduct that review from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties." Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (quoting Fye v. Okla. Corp. Comm'n, 516 F.3d 1217, 1223 (10th Cir. 2008)). If materials were not properly presented to the district court, "we will not reverse [the] district court for failing to uncover them itself." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998). The district court would otherwise need to scour the summary-judgment record to discern whether it supported the party's arguments. See Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1246 n.l3 (10th Cir. 2003) (explaining that the district court need not comb through the summary-judgment record for evidence supporting the movant's arguments).

         In her amended response to the summary-judgment motion, Ms. Murphy referred twice to the former police chief's testimony.[4] The first reference came in this sentence: "[The former police chief] had two policies which authorized Constitutional violations." For this sentence, Ms. Murphy cited pages 31-32 of her brief. Appellant's App'x, vol. 9, at 2475. These pages did not refer to the two policies. The second reference came two pages later, where Ms. Murphy stated that the City had given "'full authority' to its interrogators to conduct interrogations however they wanted to, including threats." Appellant's App'x, vol. 9, at 2505.[5] For these statements, however, Ms. Murphy did not cite any evidence.

         In her original response to the City's motion for summary judgment, Ms. Murphy had referred to Fact 113 from her statement of facts:

The Final Policymaker, and the Supervisor of the Homicide Squad, Sgt. Allen, testified that when an interrogator went alone into the interrogation room, without a video or tape recorder going, that interrogator had the "full authority" of [the Tulsa Police Department] to make his own decisions on how to conduct the interrogation, including what kind of threats to make (49, 50).

         Appellant's App'x, vol. 5, at 1238 (emphasis omitted).[6] In Fact 113, Ms. Murphy had referred to an exhibit (Exhibit 49) containing this excerpt from the former police chief's testimony:

Q. [The sergeant] further testified that the interrogator had the full authority of the Tulsa Police Department to decide what touching of the suspect would occur. Do you agree with that testimony?
A. I believe there were guidelines about no sexual touching. I mean, that would be a violation of law. But touching a suspect is not specifically prohibited.
Q. [The sergeant] further testified that an interrogator had the full authority of the Tulsa Police

Appellant's App'x, vol. 5, at 1330.

         The same testimony appeared in Exhibit 49 of Ms. Murphy's amended response to the summary-judgment motion. Appellant's App'x, vol. 10, at 2680. Although Ms. Murphy kept Exhibit 49 in her amended response to the summary-judgment motion, she dropped the reference to Fact 113. Without any reference to Fact 113, the district court no longer had anything in the amended response that even mentioned Exhibit 49. So the district court had no reason to consult Exhibit 49.

         But even if the district court had consulted Exhibit 49 (despite the absence of any reference to it), the court still wouldn't have found the pertinent part of the police chief's testimony. Exhibit 49 did not complete the second question and omitted the answer.[7] The cited page stated only that the sergeant "[had] further testified that an interrogator had the full authority of the Tulsa Police . . . ." Appellant's App'x, vol. 10, at 2680. This page did not include anything in the question about threats, so the district court needn't have suspected that the exhibit was missing a page. The court could instead have simply concluded that Ms. Murphy's assertion was not supported by the summary-judgment record.

         Even if the district court had correctly guessed that the pertinent part of the testimony might be on the next page, the entire deposition transcript had never been filed.[8] The district court thus could not have simply opened the deposition transcript and flipped to the next page.

         Ms. Murphy points out that the missing page of the former police chief's testimony appears elsewhere in the summary-judgment exhibits. But that page would not have easily been found among the 1540 pages of exhibits. The start of the second question appears in Exhibit 49, and the remainder of the question and the answer appear in Exhibit 63. But Ms. Murphy's brief in district court did not even cite Exhibit 63. So the district court could not be expected to find the missing page in Exhibit 63. See Fye v. Okla. Corp. Comm'n,516 F.3d 1217, 1223 (10th Cir. 2008) (observing that "[a]lthough the document . . . was in the ...


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