Brown v. Bryan County (On Remand)

What This Case Is About

This is the Fifth Circuit’s decision on remand from the Supreme Court’s ruling in Board of the County Commissioners of Bryan County v. Brown. After the Supreme Court reversed the Fifth Circuit and held that municipal liability for a single hiring decision requires proof that the “plainly obvious consequence” of the hire would be a constitutional violation, the case returned to the Fifth Circuit to apply that standard. The deeply divided court’s handling of the case—and the near-even split on whether to rehear it en banc—illustrates how contentious municipal liability cases can be.

The Facts

The underlying facts are the same as in the Supreme Court case: Sheriff B.J. Moore of Bryan County, Oklahoma, hired Deputy Stacy Burns without adequately reviewing his criminal background, which included convictions for assault and battery, resisting arrest, and other offenses. Burns subsequently used excessive force in arresting Jill Brown, a passenger in a vehicle involved in a pursuit, causing serious knee injuries requiring multiple surgeries.

Brown had won a jury verdict against Bryan County on the theory that Moore’s failure to adequately screen Burns before hiring him constituted a “policy” that caused her constitutional deprivation. The Supreme Court reversed, holding that this theory required proof of “deliberate indifference”—specifically, that adequate screening would have led a reasonable policymaker to conclude that the “plainly obvious consequence” of hiring Burns was the deprivation of constitutional rights.

What the Court Decided

On remand, the Fifth Circuit panel applied the Supreme Court’s heightened standard and issued its decision. The case generated significant disagreement within the circuit:

When Bryan County petitioned for rehearing en banc, the vote was seven to seven—a tie that meant the petition was denied. Judge DeMoss filed a dissent from the denial of rehearing, publicly disclosing the vote count and urging Bryan County to seek certiorari from the Supreme Court.

DeMoss argued that the panel opinion on remand failed to faithfully apply the Supreme Court’s deliberate-indifference standard. He noted that Burns’ criminal record, while troubling, consisted primarily of misdemeanors—and that a record of misdemeanor assault and battery does not make it “plainly obvious” that the person will use excessive force in making an arrest.

The dissent also revealed procedural drama: at one point, the vote for en banc rehearing was eight to four in favor, but the vote shifted as judges changed their positions, ultimately resulting in the seven-seven tie.

Why This Case Matters for Your § 1983 Case

Municipal liability for hiring is extremely difficult. The Bryan County litigation—spanning years from trial through the Supreme Court and back—demonstrates how hard it is to hold a municipality liable based on a single hiring decision. Even with a jury verdict and significant evidence of inadequate screening, the plaintiff’s path was uncertain.

The “plainly obvious consequence” test is demanding. It is not enough to show that a municipality was careless in hiring. You must demonstrate that adequate screening would have revealed that the specific type of constitutional violation that occurred was a “plainly obvious consequence” of the hire. A general criminal record is usually insufficient.

En banc splits signal unsettled law. A seven-to-seven vote on rehearing indicates that even experienced judges disagree about how to apply the standard. This uncertainty can work both for and against plaintiffs—the law may develop in either direction.

Persistence through multiple appeals. Brown’s case went through trial, a Fifth Circuit appeal, Supreme Court review, remand, and an en banc petition. Complex § 1983 cases against municipalities often require this level of persistence.

Alternative theories may be stronger. Rather than basing municipal liability solely on a single hiring decision, consider pursuing additional theories: failure to train, failure to supervise, or a pattern and practice of similar violations. These theories may be easier to prove than the single-decision approach.

Key Takeaway

Brown v. Bryan County on remand illustrates the extraordinary difficulty of holding a municipality liable for a single hiring decision under § 1983. Even when the hired officer had a troubling criminal background and subsequently violated someone’s rights, proving that the constitutional deprivation was the “plainly obvious consequence” of the hire is an uphill battle. The near-even split within the Fifth Circuit underscores how contentious and fact-dependent these cases remain.