Verastique v. City of Dallas

 Case: 23-10395         Document: 65-1         Page: 1      Date Filed: 07/08/2024




            United States Court of Appeals
                 for the Fifth Circuit                                       United States Court of Appeals
                                                                                      Fifth Circuit
                                 ____________                                       FILED
                                                                                 July 8, 2024
                                   No. 23-10395
                                 ____________                                  Lyle W. Cayce
                                                                                    Clerk
Jantzen Verastique; Dondi Morse; Parker Nevills;
Yolanda Dobbins; David Baker, also known as Dabi Baker;
Maggie Little,

                                                              Plaintiffs—Appellants,

                                         versus

The City of Dallas, Texas; Dallas County;
Dallas County Sheriff’s Office,

                                           Defendants—Appellees.
                  ______________________________

                 Appeal from the United States District Court
                     for the Northern District of Texas
                          USDC No. 3:22-CV-1182
                 ______________________________

Before Smith, Elrod, and Graves, Circuit Judges.
Jerry E. Smith, Circuit Judge:
        Plaintiffs 1 are self-described “lawful and peaceful protestor[s]” who
sued various governmental entities and officers 2 under 

,
        _____________________
        1
         Jantzen Verastique, Dondi Morse, Parker Nevills, David Baker, Maggie Little,
and Yolanda Dobbins.
        2
          Including, inter alia, the City of Dallas, Dallas County, and the Dallas County
Sheriff’s Office.
 Case: 23-10395           Document: 65-1         Page: 2      Date Filed: 07/08/2024




                                      No. 23-10395


seeking money damages for myriad alleged constitutional violations—all
stemming from their participating in the “George Floyd” demonstrations in
Dallas. The district court dismissed their claims against the City, the
County, and the Sheriff’s Office. On appeal, plaintiffs contend that the dis-
trict court erred in dismissing their municipal liability claims against the City.
We affirm.

                                            I.
A.      Background
        In 2020, major metropolitan areas were consumed by demonstrations
following the release of a video depicting the well-known George Floyd inci-
dent in Minneapolis. Texas was not spared: Some of its cities suffered, inter
alia, “widespread [and] severe damage, injury, and property loss.” 3 In Dal-
las, demonstrations ultimately devolved into “several days of riots, destruc-
tion of property, and assaults on police.” 4
        “[I]ndividuals[,] bent on rioting and looting[,]” “rov[ed] throughout
the downtown area,” and “[d]estruction quickly followed as [they] began
damaging businesses, police vehicles, and starting fires.” After Action
Report at 10, 19. Agitators, ignoring orders to disperse, “began inciting
the crowd to confront officers.” 

. Numerous stores—including
“[t]wo [f]irearm businesses”—were looted and burglarized. 

 Rioters
jumped onto police vehicles and threw “various objects including bricks and

        _____________________
        3
            Governor Greg Abbott, Proclamation (May 31, 2020), tinyurl.com/mvxk222c.
        4
          Dallas Police Department, George Floyd Protests After
Action Report 4 (August 14, 2020), tinyurl.com/5n9braye [hereinafter After-Action
Report]. Plaintiffs referred extensively to the After-Action Report in their complaint, see
ROA.38–39, and in responding to motions to dismiss, see ROA.314 & nn.9–10. We “must
consider . . . documents incorporated into the complaint by reference.” Jackson v. City of
Hearne, 

, 204–05 (5th Cir. 2020) (cleaned up).




                                            2
 Case: 23-10395           Document: 65-1          Page: 3       Date Filed: 07/08/2024




                                        No. 23-10395


rocks at officers.” 

. Swarms of rioters commandeered I-35E,
“forcing motorists to swerve in order to avoid striking pedestrians and even-
tually stopping traffic.” 

        All told, the riots inflicted extreme economic harm on Dallas—with
one initial damage estimate ascertaining “over five million dollars of property
destruction . . . in the central business district alone.” 

.

B.      Plaintiffs Participate in the Dallas Demonstrations
        Verastique and Morse, two participants, joined a crowd of demonstra-
tors marching somewhere on or alongside Reunion Boulevard. 5 As the crowd
approached I-35E, Verastique and Morse allegedly saw “a [b]lack woman on
the ground crying out in pain.” They further claim that officers from the
Dallas Police Department (“DPD”) began arresting demonstrators who had
“helped th[at] [b]lack woman to her feet.”
        Verastique and Morse responded by approaching, and engaging with,
those officers—allegedly in an “attempt[] to explain to the officers that the
[demonstrators] had not committed any crime[s].” That prompted one of
the officers—Roger Rudloff—to order Verastique to “stop and place her
hands in the air.” Allegedly, she “immediately complied and remained a
lawful peaceful protestor.” She was arrested by Rudloff after being subdued
with a less-than-lethal PepperBall round. Rudloff then ordered Morse to the
ground and arrested her as well.
        While Rudloff was effecting Verastique’s and Morse’s arrests, Nevills

        _____________________
        5
           Verastique’s and Morse’s precise position in relation to Reunion Boulevard is
somewhat unclear. Their briefing on appeal states that they were walking on “a grassy
slope near the interstate.” But, when asked at oral argument whether “they were on the
field or the road,” plaintiffs’ counsel acknowledged that “[t]here’s dispute . . . about where
[his] clients were located.”




                                              3
Case: 23-10395            Document: 65-1          Page: 4     Date Filed: 07/08/2024




                                       No. 23-10395


approached. Nevills alleges that, running toward the three individuals, he
was “hoping to render aid” to Verastique. Nevills was then subdued with
PepperBall rounds and arrested.
       Little and Baker participated in demonstrations occurring in another
part of Dallas. They ended up in a parking garage after tear gas was deployed
to disperse the crowds. They allege that DPD officers prevented them from
leaving. After repeatedly asking for the officers’ names and badge numbers,
they further allege they were roughed up and arrested.
       Baker was released from custody shortly thereafter on account of the
alleged injuries. The other plaintiffs spent one night in jail. All were charged
with various criminal offenses initially, though all charges were dropped
approximately two weeks later. 6
       Plaintiffs sued, as relevant here, the City of Dallas; Dallas County; and
the Dallas County Sheriff’s Office, raising myriad claims under § 1983. All
three defendants filed motions to dismiss for failure to state a claim. See
Fed. R. Civ. P. 12(b)(6). Granting the motions, the district court dis-
missed plaintiffs’ claims with prejudice, and they appeal.

                                            II.
       Grants of Rule 12(b)(6) motions to dismiss are reviewed de novo. Arm-
strong v. Ashley, 

 (5th Cir. 2023). Though we accept “all
well-pled facts as true, drawing ‘all reasonable inferences in favor of the non-
moving party,’” we do not “‘presume true a number of categories of state-
ments, including legal conclusions; mere labels; threadbare recitals of the
elements of a cause of action; conclusory statements; and naked assertions
devoid of further factual enhancement.’” 

 (quoting Harmon v. City of

       _____________________
       6
           Including charges for “obstruction of a roadway” and “riot participation.”




                                             4
 Case: 23-10395          Document: 65-1           Page: 5     Date Filed: 07/08/2024




                                      No. 23-10395


Arlington, 

, 1162–63 (5th Cir. 2021)). “[A] complaint must con-
tain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” and to survive a motion to dismiss. Johnson v. Harris
Cnty., 

 (5th Cir. 2023) (quoting Pena v. City of Rio Grande
City, 

 (5th Cir. 2018)).

                                           III.
        On appeal, plaintiffs challenge only the dismissal of their Monell claims
against the City. 7 Those allege that the City is liable for constitutional viola-
tions resulting from its (A) failing adequately to discipline its police officers
and (B) promulgating General Order 609.00, an official—but allegedly faci-
ally unconstitutional—policy relating to mass arrests.
        To hold a municipality liable under § 1983, a plaintiff must “show that
‘(1) an official policy (2) promulgated by the municipal policymaker (3) was
the moving force behind the violation of a constitutional right.’” Johnson,

 (quoting Pena, 

). An unofficial policy or cus-
tom, such as “the decisions of a government’s law-makers, the acts of its
policymaking officials, and practices,” can suffice for purposes of showing
the existence of an “official policy”—but only if it is “so persistent and wide-
spread as to practically have the force of law.” 

 (cleaned up).

A.      Failure to Discipline
        Plausibly to plead a Monell claim in the context of a failure-to-
discipline claim, plaintiffs must show (1) that the city’s failure to discipline
amounted to deliberate indifference and (2) a causal link between the failure
to discipline and the violation of their rights. See Armstrong, 

.
        _____________________
        7
          They do not contest the dismissal of their claims against the County and the
Sheriff’s Office, or any of Dobbins’s claims. Thus, any issues relating to those claims are
forfeited. See Rollins v. Home Depot USA, Inc., 

 (5th Cir. 2021).




                                            5
Case: 23-10395        Document: 65-1         Page: 6   Date Filed: 07/08/2024




                                    No. 23-10395


So, to survive dismissal, plaintiffs must cite sufficiently numerous prior inci-
dents, each of which includes specific facts that are sufficiently similar to
those alleged here. See Johnson, 83 F.4th at 946–47; see also Armstrong,

. Plaintiffs utterly fail to make that requisite showing.

     1. Persistent and Widespread Practice
       Though the complaint lists nineteen incidents involving one officer,
those incidents do not constitute “any pattern of conduct—much less a
pattern of similar violations.” Johnson, 

. Most are conclusory
and devoid of critical factual enhancement. What scant factual details plain-
tiffs provide affirmatively proves that all nineteen incidents are wholly inappo-
site to the case at hand.
       For starters, of the nineteen incidents, eight not only are devoid of
factual support but are also inscrutably vague. See 

 Indeed, the complaint
describes those eight in one sentence: “Between 1998 and 2000, another
eight complaints were filed against Defendant Rudloff for alleged physical
and verbal abuse.” Where did those incidents take place? Did all eight in-
volve both physical and verbal abuse? How did the abuse occur? What even
are the alleged constitutional violations? How was each complaint resolved?
Plaintiffs do not say, and we have not a clue.
       Needless to say, those eight incidents—vague and barren of factual
support—are patently incapable of showing the existence of any pattern of
conduct. 

 So, even before we consider the eleven incidents that remain,
already unsustainable is plaintiffs’ assertion that “the[ir] pleadings . . . pro-
vided highly specific information detailing each [incident].”
       Turning to those eleven: A hodge-podge of unrelated allegations, they
are but isolated examples of, at most, deficient performance or bad
judgment—not to mention their stark factual dissimilarities to what the
plaintiffs allegedly experienced.




                                         6
 Case: 23-10395            Document: 65-1        Page: 7     Date Filed: 07/08/2024




                                        No. 23-10395


        First, and fatally, none of those remaining incidents includes sufficient
factual detail. Plaintiffs, for example, cite five incidents allegedly involving a
flashlight or nightstick. Some are listed incident-by-incident. But all still
remain totally devoid of critical facts. What prompted the encounters? Did
the individuals threaten Rudloff with physical harm? Were they attempting
to resist arrest?
        Once again, the complaint does not say, and we are left with nary an
answer. So vague and so conclusory, the eleven remaining incidents plainly
do not “raise a right to relief above the speculative level.” 

 at 946 (quoting
Armstrong, 

).
        Second, and worse still, none even involves facts remotely related to
the specific violations in plaintiffs’ complaint. Four include no allegation of
physical conduct. 8 None involved the use of “less-than-lethal” weapons or
occurred in the context of a large-scale, multi-day, city-wide riot that became
so violent and deadly as to trigger a statewide disaster declaration. 9
        The complaint’s threadbare descriptions of those incidents only fur-
ther prove the point. In one, the complaint states that Rudloff “and other
officers allegedly slammed a man’s head into the ground while arresting him
for public intoxication.” But plaintiffs did not allege they were intoxicated.
Another describes an incident where Rudloff allegedly choked a man and
struck him with the palm of his hand. Not once did plaintiffs allege they were
choked. Also described are two car-related incidents, one involving a traffic
stop and the other a carjacking. Yet, at the time they were arrested, plaintiffs
        _____________________
        8
          Indeed, in describing one of those incidents, plaintiffs state that “Rudloff was
‘rebuked’ for ‘making lewd comments about a dead woman in a conversation over a police
radio with other officers.’” Offhand banter between employees cannot establish that the
City was deliberately indifferent to allegations of excessive force.
        9
            See Abbott, supra note 3.




                                             7
Case: 23-10395        Document: 65-1         Page: 8    Date Filed: 07/08/2024




                                    No. 23-10395


were marching on foot. So, plainly, they were not driving a car—much less
one that had been reported stolen.
       All nineteen incidents described in the complaint lack “similarity and
specificity” and do not “point to the specific violation in question.” Edwards
v. City of Balch Springs, 

 (5th Cir. 2023) (cleaned up).
Therefore, they cannot plausibly establish a pattern of constitutional viola-
tions. The district court correctly dismissed plaintiffs’ Monell claims prem-
ised on the City’s failing adequately to discipline its officers.

     2. Deliberate Indifference
       Assume, arguendo, that all nineteen incidents listed in the complaint
are sufficiently specific and similar. Even so, plaintiffs’ failure-to-discipline
claim still fails on an alternate ground. Nothing in their complaint suggests
that it was “obvious that ‘the highly predictable consequence’ of not super-
vising its officers was that they ‘would apply force in such a way that the
Fourth Amendment rights of [citizens] were at risk.’” Peterson v. City of Fort
Worth, 

 (5th Cir. 2009) (quoting Brown v. Bryan Cnty.,

, 461 (5th Cir. 2000)).
       According to plaintiffs, DPD investigated Rudloff’s conduct nineteen
times in twenty-three years. They observe, however, that only five of those
investigations resulted in disciplinary actions—none of which, in their opin-
ions, was sufficiently severe. Further, they allege that those disciplinary con-
sequences were functionally offset when DPD subsequently “showered
[Rudloff] with praise” and granted him more supervisory responsibilities.
Based on those allegations, plaintiffs aver that DPD was constructively aware
of—but deliberately indifferent to—a department-wide pattern of constitu-
tional rights violations. Not so.
       The complaint includes insufficiently numerous incidents to create a
pattern capable of providing constructive notice. It took twenty-three years




                                         8
 Case: 23-10395          Document: 65-1          Page: 9       Date Filed: 07/08/2024




                                       No. 23-10395


to amass the nineteen incidents mentioned in the complaint. Plaintiffs posit
that the protracted time span works in their favor. In their view, the fact that
the incidents occurred over two decades further evinces a consistent pattern
of failed discipline. Incorrect.
        Given a constant number of incidents, a longer time span yields a lower
rate of violations—militating against constructive notice. Nineteen allega-
tions over the span of twenty-three years yields a mere annualized incident
rate of 0.826. In other words: Plaintiffs—at most—show that, for over two
decades, Rudloff, on average, received fewer than one accusation of misconduct
per year.
        Further cutting against plaintiffs’ claim of a consistent pattern of
failed discipline are the factors our caselaw has identified as “relevant to
determining whether a series of incidents can be called a pattern,” Peterson,
588 F.3d at 851–52 (citing Pineda v. City of Houston, 

 (5th
Cir. 2002)).      Those factors—such as department size and number of
arrests—provide the context necessary to evaluate whether an alleged
department-wide pattern is so obvious as to impart constructive notice. See
id. at 851.
        Absent those contextual factors, it is impossible to identify the exis-
tence of a pattern—much less one that imparts constructive notice. Given a
constant number of incidents, the percentage of conduct supporting a pattern
of illegality shrinks as the size of the police department or the number of
arrests increases. 10 Accordingly, depending on context, an identical number
of incidents can strongly support—or render “truly uncompelling”—an

        _____________________
        10
           To the point where the allegedly unconstitutional incidents form but a tiny sliver
of the arrests made in the coterminous period, making the sample “just too small.” See
Pineda, 

.




                                             9
Case: 23-10395             Document: 65-1           Page: 10      Date Filed: 07/08/2024




                                         No. 23-10395


inference of a pattern of illegality. Pineda, 

. 11
         Yet, inexplicably, the complaint eschews discussing either factor.
Lacking any context or frame of reference, it trades rational analysis for a
random shot in the dark. Plaintiffs have no clue whether nineteen incidents
over twenty-three years is sufficiently frequent to be obvious in the context
of DPD. So, though they purport to discover a pervasive pattern of failure to
discipline, in reality they have alleged nothing at all.
         Had plaintiffs taken a more reasoned approach, they would have ac-
knowledged that DPD employs 3,200 to 3,300 officers and serves one of the
largest cities in the nation. 12 “Given the department’s size, and absent any
evidence of its total number of arrests during the same time period,” only
one conclusion can reasonably follow: Nineteen incidents over twenty-three
years does not support any inference of a department-wide pattern of
illegality. 13
         In sum, the nineteen incidents are not sufficiently similar, specific, or
numerous.          Therefore, the district court correctly dismissed plaintiffs’
failure-to-discipline claim.

B.       General Order 609.00
         Plaintiffs attempt to establish the first and third Monell elements 14 by
         _____________________
         11
          See also 

 (“Eleven incidents each ultimately offering equivocal evidence of
compliance with the Fourth Amendment cannot support a pattern of illegality in one of the
Nation’s largest cities and police forces.”).
         12
              As appellee’s counsel explained at oral argument.
         13
           Peterson, 

; see also 

 at 851 & n.4 (“twenty-seven incidents in four
years is not sufficient evidence of a pattern rising to the level of a policy” given the depart-
ment’s employing “more than fifteen-hundred officers” (cleaned up)).
         14
           Namely, (1) an official policy that was (3) the moving force behind the violation
of a constitutional right. See Johnson, 

.




                                               10
Case: 23-10395           Document: 65-1           Page: 11      Date Filed: 07/08/2024




                                        No. 23-10395


alleging that General Order 609.00 is unconstitutional on its face because it
(1) permits DPD officers “to conduct arrests as they saw necessary to quell a
civil unrest incident,” with (2) no further “guidance or restrictions on
arrests.” Put another way, they fault the Order for (1) committing certain
decisions to the discretion of municipal employees and (2) failing compre-
hensively to explain every hypothetical stricture that might touch on the
legality of an arrest.
        For purposes of a Monell claim, an official, written policy is facially
unconstitutional if it “affirmatively allows or compels unconstitutional con-
duct.” Edwards, 

 (citation omitted). General Order 609.00
does neither. Indeed, plaintiffs’ own characterization of General Order
609.00 describes—to a tee—a facially valid policy. An official policy that
merely (1) “commits some decisions to an individual officer’s on-the-scene
discretion” or (2) “gives some detailed instructions while omitting others”
does not “affirmatively allow[] or compel[]” unconstitutional conduct. 15
Edwards, 

.
        General Order 609.00 in no way abrogates the applicability or effec-
tiveness of pre-existing constitutional protections. See 

. It does not
render DPD officers any less capable—or any less obligated—to act in accor-
dance with the Constitution’s commands. 16 Officers are not prohibited from
exercising the Order’s grants of discretion in a constitutionally valid manner.
Nor are they required to disregard restrictions or limitations not expressly

        _____________________
        15
          Unless “those features stem from the policymaker’s deliberate indifference.”
Edwards, 

; see also Peterson, 

. But plaintiffs never allege that
General Order 609.00 was so enacted. So that theoretical possibility is of no moment.
        16
          After all, discretion can be exercised constitutionally, and omitted instructions
can be obtained elsewhere. See 

 (noting that a recitation of “every jot and tittle of the
applicable caselaw . . . would produce a behemoth” of a policy “free of any practical use”).




                                             11
Case: 23-10395            Document: 65-1           Page: 12      Date Filed: 07/08/2024




                                         No. 23-10395


mentioned in the text of the Order itself. Indeed, counsel for Verastique
admitted at oral argument that the Order “doesn’t specifically state [that
officers] don’t need probable cause” and that it “does not prohibit” “indi-
vidualized findings of probable cause.” Thus, plaintiffs’ facial attack on the
Order lacks merit.
       For good reason too: Plaintiffs’ assault on General Order 609.00 can-
not be squared with the limitations that § 1983 places on the scope of muni-
cipal liability. Under their theory, a municipality’s official policy must be un-
constitutional on its face (1) if any one employee’s “mere exercise of discre-
tion . . . could give rise to a constitutional violation” or (2) if it fails expressly
to provide, in detail, any “guidance that might have averted a constitutional
violation.” Edwards, 70 F.4th at 309–10 (cleaned up) (emphasis added). And
since a “facially unconstitutional policy’s mere existence satisfies the
moving-force requirement that is Monell’s third element,” id. at 308 (citation
omitted), plaintiffs’ theory would permit recovery from municipalities
merely on the basis of an “individual violation perpetrated by a local govern-
ment employee” 17—thereby making municipal liability “indistinguishable
from respondeat superior liability,” Edwards, 

 (quoting City of
St. Louis v. Praprotnik, 

 (1988)).
       But that cannot be, for Monell claims predicated on respondeat superior
liability are wholly alien to the plain meaning of § 1983. 18 The statute does
not “impose liability vicariously on governing bodies solely on the basis of
the existence of an employer-employee relationship with a tortfeasor.”
Brown, 520 U.S. at 403 (citation and internal quotation marks omitted).


       _____________________
       17
            Piotrowski v. City of Houston, 

 (5th Cir. 2001) (cleaned up).
       18
            

 (citing Bd. of Comm’rs of Bryan Cnty. v. Brown, 

 (1997)).




                                              12
Case: 23-10395            Document: 65-1            Page: 13         Date Filed: 07/08/2024




                                          No. 23-10395


Accordingly, a municipality is liable only for its own illegal acts.19 Yet, that’s
precisely what plaintiffs’ theory does: It holds municipalities liable for the
unsanctioned and unordered acts of others. See 

 Unsurprisingly, that yields
an end-state that the text of § 1983 will not bear. Piotrowski, 

.
        In sum, plaintiffs have not plausibly pleaded that General Order
609.00 is unconstitutional on its face. Dismissal of their claims premised on
facial invalidity was therefore proper. 20

                              *       *        *         *       *
        Plaintiffs’ claims against the City of Dallas are utterly meritless. The
judgment of dismissal is AFFIRMED.




        _____________________
        19
            That is, acts “which the municipality has officially sanctioned or ordered.”
Edwards, 

 (quoting Pembaur v. City of Cincinnati, 

 (1986));
see also Piotrowski, 

 (“isolated unconstitutional actions by municipal em-
ployees will almost never trigger [municipal] liability” (citations omitted)).
        20
           Plaintiffs also assert that former DPD Chief Reneé Hall was the City’s policy-
maker whose actions resulted in their alleged injuries. But their complaint does not plead
sufficiently any unconstitutional policy or custom, so “the specific identify [sic] of the poli-
cymaker is neither here nor there.” Pena, 

 n.15 (cleaned up). Accordingly,
we pretermit further consideration of that assertion and, therefore, decline to address the
district court’s reference to Groden v. City of Dallas, 

 (5th Cir. 2016), which
held that “the final policymaker for the [C]ity of Dallas is the Dallas city council,” 

 at 286
(citing Bolton v. City of Dallas, 

, 550 (5th Cir. 2008) (per curiam)).




                                               13
Case: 23-10395          Document: 65-1        Page: 14   Date Filed: 07/08/2024




James E. Graves, Jr., Circuit Judge, concurring in part and dissenting
in part:
       The plaintiffs allege a long-running pattern of violent misdeeds—a
total of nineteen incidents—by a Dallas police officer. They argue that Dallas
policymakers should have known about the officer’s violent history and
disciplined him accordingly. Thus, they argue, the city is liable for the
officer’s attack on them at a protest against police brutality following the
murder of George Floyd.
       According to the majority, the plaintiffs’ claims against the city fail.
They fail because even if the officer did violently attack them, he did not beat
them with his nightstick, or beat them with his flashlight, or beat them while
they were intoxicated, or choke them, or shoot at them while they were
driving a car. That is, he did not do to them what he allegedly did to others.
Thus, the majority says, the city could not expect that he presented a risk of
further harm to the community.
       I concur in the majority’s conclusion that the plaintiffs’ claim based
on General Order 609.00 is foreclosed by Edwards v. City of Balch Springs, 

 (5th Cir. 2023). But the majority’s disposition of the plaintiffs’
failure to discipline claim is not supported by the facts or the law.
Accordingly, I respectfully dissent from that part of the majority’s opinion.
                                         I.
           At this stage of the case, we must take the plaintiffs’ allegations as
true and “draw all reasonable inferences in [their] favor. Morgan v. Swanson,

 (5th Cir. 2011) (en banc).
       The majority begins its recitation of the facts with information culled
selectively from the police department’s After-Action Report, cited in the
complaint. It sets a scene of “rioting and looting” and includes details about




                                         14
Case: 23-10395             Document: 65-1             Page: 15       Date Filed: 07/08/2024




rioters who threw bricks at officers, burglarized gun stores, and forced drivers
off the highway. It then describes plaintiffs Jantzen Verastique and Dondi
Morse as “two participants.”
         But there are no allegations connecting the plaintiffs to those events.
In their complaint, the plaintiffs describe themselves as “lawful and peaceful
protestor[s].” 1 They told police that they never threw objects at officers and
“were not around anyone else who did.” Rather, Verastique, who works at a
nonprofit serving at-risk children, told a reporter that she marched that day
out of concern for her two Black sons. 2 She carried a sign that said, “Not my
sons, not this mom, enough is enough.” 3
         The majority then addresses the plaintiffs’ actual allegations, starting
with Verastique and Morse’s encounter with Dallas police officer Roger
Rudloff. The majority notes that Verastique was trying to explain to officers,
including Rudloff, that a demonstrator the officers had surrounded had not
done anything wrong. Rudloff ordered Verastique to stop and put her hands
in the air, which she did. Then, the majority says, she “was arrested by
Rudloff after being subdued with a less-than-lethal PepperBall round.”
             What Verastique actually alleged was the following: As she stood with
         _____________________
         1
          “[T]he right to engage in peaceful and orderly political demonstrations is, under
appropriate conditions, a fundamental aspect of the ‘liberty’ protected by the Fourteenth
Amendment . . . .” Shuttlesworth v. City of Birmingham, 

 (1969) (Harlan,
J., concurring).
         2
          Miles Moffeit et al., ‘I felt like my chest was on fire’: Photo shows Dallas police officer
shooting protester with pepper-ball gun, The Dallas Morning News, Aug. 9, 2020,
https://www.dallasnews.com/news/investigations/2020/08/09/i-felt-like-my-chest-
was-on-fire-photo-shows-cop-blasting-a-peaceful-protester-with-a-pepper-ball-gun-at-
close-range/. The complaint cites to this article and one other that is cited below.
Documents incorporated into the complaint are properly examined on a motion to dismiss.
Basic Cap. Mgmt., Inc. v. Dynex Cap., Inc., 

 (5th Cir. 2020).
         3
             

                                                 15
Case: 23-10395             Document: 65-1        Page: 16    Date Filed: 07/08/2024




her hands in the air, Rudloff shot her in the chest, at close range, with a rifle
loaded with non-lethal chemical projectiles. A photograph in the complaint
shows the moment immediately afterward, with Rudloff pointing his rifle at
Verastique as she lays on the ground facing away from him. “I felt like my
chest was on fire,” Verastique told a reporter. “I didn’t know what that
weapon was. I was terrified.” 4
        Nothing in the complaint or even in the majority’s retelling indicates
that Verastique presented a threat such that she needed to be “subdued” at
all. Even Rudloff later told a reporter that he fired on Verastique only because
“she wasn’t doing what we told her to.” 5 Morse later described the scene as
“like an ambush.” 6
        In a similarly abridged manner, the majority relays that plaintiff Parker
Nevills was “subdued with PepperBall rounds.” It omits Nevills’s allegation
that after he was “subdued,” while he was standing still with his hands
behind his back, Rudloff kneed him in the groin for no apparent reason. 7
Rudloff also called Nevills a “faggot,” according to Nevills, Verastique, and
a witness. 8
        Next, the majority writes that plaintiff Dabi Baker was “roughed up”

        _____________________
        4
            

        5
            

        6
            

        7
          The Dallas Morning News reported that while Nevills was putting his arms behind
his back, police body camera footage showed Rudloff “shov[ing] his knee into [Nevills’s]
stomach.” Miles Moffeit & Cassandra Jaramillo, Charges against cop to be weighed, The
Dallas Morning News, Nov. 12, 2021, https://www.dallasnews.com/news/inves-
tigations/2021/11/12/grand-jury-to-weigh-criminal-charges-against-dallas-officer-who-
fired-pepper-balls-at-protester/.
        8
            Moffeit et al., supra note 2.




                                            16
Case: 23-10395       Document: 65-1        Page: 17   Date Filed: 07/08/2024




by officers. Her allegations are significantly more detailed: that officers
“slammed [her] to the ground with such force that they broke her glasses,
which cut into the bridge of her nose”; that they “beat her”; that she
“suffered severe injuries to her chest.” All because, Baker alleged, she asked
the officers for their names and badge numbers.
       The plaintiffs alleged that there were nineteen misconduct complaints
against Rudloff that spanned twenty-three years. Sixteen allegedly involved
violence against a member of the public.
       These are the allegations that the majority describes as “isolated
examples of, at most, deficient performance or bad judgment”:
       In July 1998, Defendant Rudloff allegedly threatened to beat a
       Black man with a flashlight. According to the sworn statement
       the man gave to DPD Internal Affairs, Defendant Rudloff told
       him that he used the flashlight to “beat n—s in the head.”
       In October 1998, another complaint alleged that Defendant
       Rudloff choked a driver after stopping her for failure to use a
       turn signal.
       ...
       In January 1999, after responding to a disturbance call involving
       a man with a gun, Defendant Rudloff handcuffed an unarmed
       Black man, allegedly striking him with the palm of his hand and
       choking him.
       [Two 1999 lawsuits alleged that] Defendant Rudloff assaulted
       Black men with his flashlight.
       In November 1999, Defendant Rudloff beat Keith Burkins so
       severely with a flashlight that Burkins required seven staples in
       his head. A senior corporal who witnessed the assault reported
       Defendant Rudloff to a supervisor, but Defendant Rudloff . . .
       claimed Burkins hit his head on a sidewalk.




                                      17
Case: 23-10395           Document: 65-1            Page: 18       Date Filed: 07/08/2024




        ...
        In 2005, Defendant Rudloff was sued in his individual capacity
        for assault and battery of and use of excessive force against [a
        man who] alleged that two officers . . . transported him from
        the scene of his arrest (one of whom the City identified as
        Defendant Rudloff) [and] assaulted him by repeatedly striking
        his face and battering him with a nightstick. [The case was
        settled two weeks before trial.]
        In 2009 . . . Defendant Rudloff was yet again accused of
        excessive force when he and other officers allegedly slammed a
        man’s head into the ground while arresting him for public
        intoxication.
        In 2012, Defendant Rudloff and two other officers fatally shot
        a carjacking suspect, firing about thirty rounds into his car.
        Defendant Rudloff was “admonished” by a supervisor after
        the shooting for violating DPD policy by using a firearm for
        which he was unqualified. 9
        Allegedly, there were ten other complaints of misconduct against
Rudloff that are not detailed in the complaint. The police department only
disciplined Rudloff for five of the nineteen complaints, the plaintiffs allege.
The harshest punishment was imposed after investigators concluded that
Rudloff lied about beating a Black man with a flashlight in 1999. He was
suspended for ten days. But he also allegedly received more supervisory
responsibilities. In fact, he was promoted twice—ultimately to a position
where he supervised certain law enforcement activities at the protest.
        The substance of the plaintiffs’ allegations is this: Officers, principally

        _____________________
        9
          One of the articles incorporated into the complaint explains that the carjacking
suspect “put [his] vehicle in reverse and drove it at [the officers]” before the officers fired.
It reported that a grand jury cleared Rudloff of wrongdoing. Moffeit et al., supra note 2.




                                              18
Case: 23-10395          Document: 65-1         Page: 19   Date Filed: 07/08/2024




Rudloff, responded to the plaintiffs’ compliance with their orders by
assaulting or shooting them. And Rudloff’s actions were only the latest
instance in his long and conspicuous history of subjecting Dallas residents to
brutal uses of force.
                                         II.
       The majority next finds three reasons to dismiss the plaintiffs’
allegations against the city. It concludes that Rudloff’s past misdeeds are not
alleged with enough specificity, are not similar enough to the plaintiffs’ own
experiences, and were not frequent enough to put the city on notice of a
problem. None of those conclusions are supported by the law.
       A.     Specificity of the allegations
       First, the majority concludes that the plaintiffs’ allegations are not
specific enough. To successfully allege that the city should be held liable for
Rudloff’s misconduct, the plaintiffs were required to plead deliberate
indifference—that is, a pattern of city actions “so persistent and widespread
as to practically have the force of law.” Peña v. City of Rio Grande City, 

 (5th Cir. 2018) (quoting Connick v. Thompson, 

, 61
(2011)). That can include the persistent failure to discipline officers who
violate the constitutional rights of members of the community. Piotrowski v.
City of Houston, 

, 581–82 (5th Cir. 2001). But the plaintiffs’
allegations of such a failure to discipline must be specific and non-conclusory.
Johnson v. Harris County, 

, 946–47 (5th Cir. 2023).
       In my view, the complaint satisfies that standard. It combines a more
general allegation about the large number of excessive force complaints with
specific allegations about several of those complaints. The pleading standard
for deliberate indifference cases is no higher than it is for other cases.
Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 

 (1993). When that usual standard applies, we require only enough




                                         19
Case: 23-10395       Document: 65-1           Page: 20   Date Filed: 07/08/2024




details to make the plaintiff’s basic claims plausible, not to affirmatively
prove them. Bell Atl. Corp. v. Twombly, 

 (2007); Cicalese v.
Univ. of Tex. Med. Branch, 

 (5th Cir. 2019) (explaining that
“scrutinizing” plaintiffs’ allegations is “more suited to the summary
judgment phase”).
       Yet the plaintiffs’ allegations of Rudloff’s past actions are not specific
enough, the majority says, because the allegations do not affirmatively state
whether Rudloff’s actions were justified. Maybe his victims threatened him
first, the majority speculates, or maybe they were resisting arrest.
       That analysis is wrong. We are supposed to make inferences in the
plaintiffs’ favor, not speculate about how the defendants might overcome
their allegations. See Morgan, 

. The reasonable inference here
is there is no justification for an officer to beat a man with a flashlight just
because he wanted to “beat n—s in the head,” or to beat another man so
badly as to require stitches and then lie about it, or to slam a person’s head
into the ground while making an intoxication arrest. Yet at every turn, the
majority sews doubt into well-pled allegations by alternately assuming
Rudloff’s actions were provoked or that they can be chalked up to “deficient
performance or bad judgment.” If that is true, the city may prove it at
summary judgment or trial. Until then, the plaintiffs need only allege that
Rudloff’s history of violence, which the complaint describes as “use[s] of
excessive force” and “allegations upon allegations of constitutional
violations,” put the city on notice of a serious problem. They have done so.
       B.     Similarity of the allegations
       Next, the majority concludes that the plaintiffs’ allegations about
Rudloff’s past acts are not similar enough to his actions here to constitute a
pattern that would have put the city on notice. As the majority writes, past
violations must be “similar” to constitute an actionable pattern. See Connick,




                                       20
Case: 23-10395       Document: 65-1         Page: 21   Date Filed: 07/08/2024




563 U.S. at 61 (2011).
       The complaint satisfies that standard as well. The plaintiffs allege that
Rudloff committed years of aggressive, unnecessary, and unjustified violence
against members of the community. Their own experiences are just the latest
examples. Moreover, if the allegations are true, they raise serious questions
about why Rudloff was allowed to continue patrolling the streets.
       Yet the majority discounts those egregious allegations because they
did not specifically involve less-than-lethal projectiles or did not “occur[] in
the context of a large-scale, multi-day, city-wide riot.” Alternatively, the
plaintiffs were not intoxicated, were not beaten with a nightstick, and were
not choked. Our cases simply do not support that punctilious approach. Past
violations must be “similar”; they need not be identical.
       In Connick, plaintiffs brought a claim based on a prosecutor’s failure
to disclose a crime lab report. Connick, 563 U.S. at 57. The Supreme Court
implied that a pattern of failure to disclose “physical or scientific evidence of
any kind” would have been sufficient to show deliberate indifference. Id. at
62–63 (emphasis added).
       The plaintiffs’ allegations demand a conclusion quite the opposite of
the majority’s. Because Rudloff’s alleged unconstitutional actions were not
limited to a single context, or a single means of violence, they show a
propensity to use excessive force in any context, by any method.
       C.     Frequency and seriousness of the allegations
       Last, the majority explains that Rudloff’s “annualized incident rate”
of committing needless violence against members of the community is too
low to put the city on notice. It bases that concept on Peterson v. City of Fort
Worth, 

 (5th Cir. 2009). The majority’s approach was
arguably appropriate in that case. There, the plaintiffs, to show deliberate




                                       21
Case: 23-10395        Document: 65-1          Page: 22   Date Filed: 07/08/2024




indifference, pointed to twenty-seven complaints of excessive force against
the Fort Worth police department. 

 We said that in a force of 1,500 officers,
in a city with 67,000 incidents of crime per year, twenty-seven complaints
may not be enough to put the city on notice of a problem. 

.
       This case is different. The plaintiffs point to nineteen complaints of
excessive force against a single officer. When one officer is the problem, the
city is not faced with a scattering of bad apples across a large police force.
And indeed, there are allegations here that the department knew about
Rudloff’s violations. In short, Peterson does not support the majority’s
analysis. The plaintiffs allege a pervasive pattern of failure to discipline
Rudloff for uses of excessive force. I would therefore conclude that the
plaintiffs sufficiently alleged deliberate indifference on the part of the city.
                                       III.
       The majority does not reach the other elements of the plaintiffs’
failure to discipline claim. To sustain it, the plaintiffs were also required to
plead the involvement of an official policymaker and to plead that the city’s
practice of failing to discipline Rudloff was the “moving force” in their
injuries. Hutcheson v. Dallas County, 

 (5th Cir. 2021).
       The plaintiffs alleged that former Dallas police chief Reneé Hall was
the city’s official policymaker on policing. The district court concluded that
Groden v. City of Dallas, 

 (5th Cir. 2016), foreclosed that
argument. But while Groden declared that “the final policymaker for the
[C]ity of Dallas is the Dallas city council,” 

, it did not address the
argument the plaintiffs make: that the city council delegated policymaking
authority to Hall. The plaintiffs plausibly pled that a delegation occurred. See
Zarnow v. City of Wichita Falls, 

 (5th Cir. 2010).
       The moving force inquiry requires a “direct causal connection . . .
between the policy and the alleged constitutional deprivation.” Mason v.




                                        22
Case: 23-10395       Document: 65-1         Page: 23   Date Filed: 07/08/2024




Lafayette City-Par. Consol. Gov’t, 

 (5th Cir. 2015) (citation
omitted). If the city had addressed Rudloff’s alleged string of violent behavior
by, for example, firing him, it would have prevented Verastique and Nevills’s
injuries. It is also plausible that the city’s failure to discipline Rudloff
emboldened him to commit more wanton violence. And it is also plausible
that the example emboldened other officers, including the one who allegedly
assaulted Baker in the parking garage. See Gentile v. County of Suffolk, 

, 152–53 (2d Cir. 1991).
                                      IV.
       I would conclude that the plaintiffs plausibly pled that the city failed
to discipline Rudloff for repeated use of excessive force, that its failure
constituted deliberate indifference to a risk of further harm, and that such
failure was the moving force in the plaintiffs’ injuries. I respectfully dissent
from that part of the majority’s opinion.




                                      23