David Lytle; Jeanette Lytle; Joan Maguire v. Jack Doyle

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DAVID LYTLE; JEANETTE LYTLE; JOAN
MAGUIRE,
Plaintiffs-Appellees,
v.
JACK DOYLE, in his official capacity
as Norfolk Commonwealth
Attorney; COMMISSIONER, of No. 02-1056 
Transportation of the
Commonwealth of Virginia,
Defendants-Appellants,
and
CITY OF NORFOLK, VIRGINIA,
Defendant. 
 DAVID LYTLE; JEANETTE LYTLE; JOAN
MAGUIRE,
Plaintiffs-Appellants,
v.
CITY OF NORFOLK, VIRGINIA,
Defendant-Appellee,
No. 02-1076  and
JACK DOYLE, in his official capacity
as Norfolk Commonwealth
Attorney; COMMISSIONER, of
Transportation of the
Commonwealth of Virginia,
Defendants. 

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Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-99-1366-2)
Argued: January 23, 2003
Decided: April 14, 2003
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Michael and Judge King joined.
COUNSEL
ARGUED: Maureen Riley Matsen, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia; Michael Joseph
DePrimo, AMERICAN FAMILY ASSOCIATION CENTER FOR
LAW AND POLICY, Tupelo, Mississippi, for Appellants. Harold
Phillip Juren, Chief Deputy City Attorney, CITY ATTORNEY’S
OFFICE, Norfolk, Virginia, for Appellees. ON BRIEF: Jerry W. Kil-
gore, Attorney General of Virginia, William H. Hurd, State Solicitor,
Judith Williams Jagdmann, Deputy Attorney General, William E.
Thro, Special Assistant Attorney General, Kevin O. Barnard, Assis-
tant Attorney General, Richmond, Virginia; Brian Fahling, Stephen
Melvin Crampton, AMERICAN FAMILY ASSOCIATION CENTER
FOR LAW AND POLICY, Tupelo, Mississippi, for Appellants. Jack
E. Cloud, Deputy City Attorney, CITY ATTORNEY’S OFFICE,
Norfolk, Virginia, for Appellees.
OPINION
WILKINSON, Circuit Judge:
Plaintiffs David Lytle, Jeanette Lytle, and Joan Maguire challenge
the constitutionality of Virginia Code § 46.2-930 which prohibits loi-
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tering on certain Virginia bridges. Officers from the Norfolk Police
Department, relying on this statute, threatened the plaintiffs with
arrest for participating in a peaceful protest on a City bridge.
Although we recognize the state’s legitimate interests in public safety,
the application of this anti-loitering provision to plaintiff’s expressive
activity is constitutionally infirm. We thus affirm the district court’s
award of declaratory relief to plaintiffs, albeit on different grounds.
The district court also held that there was no municipal liability in this
case and declined to award damages to plaintiffs. See Lytle v. Doyle,
197 F. Supp.2d 481 (E.D. Va. 2001). We affirm these rulings as well.
I.
David Lytle, Jeanette Lytle, and Joan Maguire ("the Lytles") partic-
ipated in a pro-life demonstration on July 16, 1999, at the Piccadilly
Overpass located at the intersection of Norview Avenue and Interstate
64 in Norfolk, Virginia. The Lytles, along with other protesters, were
attempting to convey their message to motorists traveling on the inter-
state below by displaying large signs depicting their views on abor-
tion. The Virginia Department of Transportation had previously hung
"No Loitering" signs on this overpass. The Lytles ceased their protest
activities when they were threatened with arrest for their conduct.
They now challenge the facial constitutionality of Virginia Code
§ 46.2-930 and the application of the statute to them in this manner.
Virginia Code § 46.2-930 provides that pedestrians "shall not loiter
on any bridge on which the Commonwealth Transportation Commis-
sioner has posted signs prohibiting such action." The Commissioner
considers a number of public safety concerns in determining whether
to post "No Loitering" signs on a given bridge. These concerns
include whether loitering pedestrians might be distracting to motor-
ists, whether they might drop objects on vehicles using the highway
beneath the bridge, whether they might be struck by vehicles on the
bridge, and whether they might fall off the bridge, injuring themselves
or those below. Before any Virginia bridge is given a "No Loitering"
designation, the Commissioner consults with the appropriate district
traffic engineer about specific safety concerns on the bridge.
Prior to the present incident, protesters had staged at least two other
pro-life demonstrations on the Piccadilly Overpass. On July 25, 1997,
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the Lytles gathered with other protestors at the overpass and were
ordered by state and local police officers to leave. Virginia Code
§ 46.2-930 was not mentioned during this incident and none of the
protestors were arrested. The following year, on July 31, 1998, the
Lytles returned to the overpass and resumed protesting. The Norfolk
police again responded. They informed the protestors that the activity
on the bridge was adversely affecting traffic patterns and creating a
dangerous situation. Again, no mention was made of Virginia Code
§ 46.2-930 and no signs were posted on the bridge at this time. There
is no indication that the officers involved in the various protests were
the same.
Following the second incident, Captain Sharon Chamberlain asked
Lieutenant Betty Davis to investigate different options for handling
the ongoing problems at the overpass. At some point in August 1998,
"No Loitering" signs were posted at the Overpass, presumably by the
Virginia Department of Transportation. The signs were most likely
posted at the request of someone in the police department. However,
neither the City Manager, the Assistant City Manager overseeing the
police department, nor the Chief of Police knew of their existence.
On August 7, 1998, Davis prepared a memorandum instructing
officers on how to deal with protestors on the Piccadilly Overpass.
The Davis Memo advised any officer who observed demonstrators on
the bridge to issue a summons pursuant to Virginia Code § 46.2-930.
Davis left a copy of the document for Chamberlain, with a note stat-
ing that the original was put in the Division’s roll call book where
information for the officers was kept. Although officers are supposed
to review the roll call book regularly, there is no indication that any
of the officers in the division actually read this memo. The contents
of the memo were not relayed to the officers in any other manner.
Lieutenant Charles Brewer, the officer who responded to the July 16,
1999 protest, testified that he never saw the memo until it was given
to him by Chamberlain as he left for the Piccadilly Overpass that day.
When Brewer arrived at the Piccadilly Overpass, he noted that the
demonstrators were carrying large signs expressing their opposition to
abortion. Several of the protestors had leaned the signs up against the
railings, pointed down at the traffic below the bridge. Brewer also
noted that traffic conditions were heavy and that traffic was beginning
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to back up near the overpass. After observing this scene, Brewer and
another officer approached the protestors and provided them with
copies of Virginia code § 46.2-930, as Brewer had been instructed to
do by Chamberlain. Brewer told the protestors that, pursuant to that
statute, they would be arrested if they did not cease their activities.
After the officers arrested two fellow demonstrators, the Lytles left
the overpass.
After being informed of the July 16, 1999, demonstration and the
circumstances surrounding it, the Chief of Police disseminated a
memorandum to all commands in the Norfolk Police Department stat-
ing that the Attorney General’s office was reviewing the constitution-
ality of Virginia Code § 46.2-930. In the meantime, officers were not
to rely on that statute when handling protest situations arising on brid-
ges or overpasses.
The Office of the Attorney General discovered that the "No Loiter-
ing" signs posted on the Piccadilly Overpass had never been approved
by the Commissioner or his designee. Based on this determination,
the charges against the two protestors were dropped and the Lytles
were notified that the Commonwealth was suspending enforcement of
the statute on the bridges in the area.
On August 27, 1999, the Lytles filed a complaint against Charles
Brewer,1 Charles Griffith, in his official capacity as Norfolk’s Com-
monwealth’s Attorney, and Governor James Gilmore challenging the
constitutionality of Virginia Code § 46.2-930 and seeking injunctive
and nominal monetary relief. The Lytles alleged that the statute was
unconstitutional both on its face and as applied to their conduct
because it violated their First and Fourteenth Amendment rights.
On November 2, 1999, the district court granted the Lytles’ motion
for a preliminary injunction. See Lytle v. Brewer, 73 F. Supp.2d 615,
619 (E.D. Va. 1999). The Governor and Commonwealth’s Attorney
appealed and contended the Governor was not a proper party to the
1Brewer was dismissed by order of the district court on December 22,
1999. He is no longer a party to this case. At that time, the district court
allowed the plaintiffs to amend their complaint to include a claim against
the City of Norfolk.
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litigation. See Lytle v. Griffith, 240 F.3d 404 (4th Cir. 2001). On
remand, the district court dismissed the Governor but permitted the
Lytles to substitute Charles Nottingham, in his official capacity as the
Commissioner of Transportation of Virginia, as the appropriate defen-
dant. Lytle v. Doyle, 197 F. Supp.2d at 482.
The parties then filed cross-motions for summary judgment. On
December 17, 2001, the district court declared Virginia Code § 46.2-
930 to be facially invalid on the ground that it was unconstitutionally
vague. The district court also held in favor of the Lytles on their due
process claim, but did not reach their First Amendment claim. On the
issue of municipal liability, however, the district court granted sum-
mary judgment in favor of the City on the ground that the deprivation
of their rights was not caused by a municipal policy or custom. The
Commissioner appealed the district court’s invalidation of § 46.2-930
and the Lytles cross-appealed on the issue of municipal liability. We
shall address these issues in turn.
II.
A.
The Fourteenth Amendment requires a state to provide citizens fair
warning of the conduct that might subject them to criminal sanctions.
Giaccio v. Pennsylvania, 382 U.S. 399, 402-403 (1966). A law is
unconstitutionally vague if it fails to provide the kind of notice that
will enable citizens to conform their behavior to that law. And "[n]o
one may be required at peril of life, liberty or property to speculate
as to the meaning of penal statutes." City of Chicago v. Morales, 527
U.S. 41, 58 (1999) (internal citations omitted). Because Virginia Code
§ 46.2-930 did not provide fair warning to plaintiffs that they might
be arrested for participating in a peaceful demonstration, application
of the statute to them is invalid.
The Commissioner argues that the district court incorrectly invali-
dated Virginia Code § 46.2-930 as unconstitutionally vague. He con-
tends that the statute plainly prohibits loitering on designated bridges,
and that a person of ordinary intelligence understands perfectly well
what it means to loiter. Therefore, the Commissioner argues, the
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Lytles had reasonable notice that they were violating the law and
might be subject to sanctions.
The Supreme Court addressed this issue in City of Chicago v.
Morales, 527 U.S. 41 (1999). In that case, the Chicago City Council
enacted an ordinance that prohibited "criminal street gang members"
from "loitering" with one another or with other persons in any public
place. Morales, 527 U.S. at 45-46. The ordinance created a criminal
offense punishable by a fine of up to $500 and imprisonment for not
more than six months. Id. at 47. While recognizing Chicago’s interest
in reducing gang criminality, the Court nonetheless found the statute
void for vagueness because "the definition of ‘loiter’ provided by the
ordinance [did] not assist in clearly articulating the proscriptions of
the ordinance." Id. at 51 (quoting City of Chicago v. Morales, 687
N.E.2d 53, 60-61). Because being in a gang is not itself illegal, and
because standing in a given location also is not per se illegal, individ-
uals were left unsure when they might run afoul of the law. Id. at 57.
This statute, therefore, did not provide the type of fair warning that
the Fourteenth Amendment requires.
Here, as in Morales, "the vagueness that dooms this ordinance is
not the product of uncertainty about the normal meaning of ‘loiter-
ing,’" but rather about what specific conduct is covered by the statute
and what is not. 527 U.S. at 57. Virginia Code § 46.2-930 did not give
plaintiffs proper notice that the core political speech and expressive
activity in which they were engaged was prohibited by law. If any-
thing, the language of the statute, prohibiting "loitering" on bridges,
suggested that their conduct would be permitted.
As the Commissioner noted in his brief, "loitering" has "by long
usage acquired a common and accepted meaning." According to
Webster’s Dictionary, this meaning is "to stand idly about." Web-
ster’s II New College Dictionary 645 (1999). The expressive activity
in which these plaintiffs engaged, however, does not fall within this
definition. Loitering is aimless. Social protest is by definition pur-
poseful. The Lytles were exercising their First Amendment right to
speak out peacefully against a practice with which they disagreed. No
reasonable person would know that protesting and loitering were one
and the same activity and that an anti-loitering statute would attach
criminal sanctions to the classic political expression undertaken by
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the Lytles. Therefore, Virginia Code § 46.2-930 cannot have been
constitutionally applied to the plaintiffs. For this reason, the declara-
tory judgment of the district court must stand.2
B.
While we agree that Virginia Code § 46.2-930 is unconstitutional
as applied to the Lytles, we do not go as far as the district court. That
court’s facial invalidation of the statute was so sweeping as to evis-
cerate the significant interests the State has in traffic and pedestrian
safety.
The district court held that Virginia Code § 46.2-930 was unconsti-
tutional on its face because it required no proof of criminal intent on
the part of potential violators. Lytle v. Doyle, 197 F. Supp. 2d at 490.
The Court in Morales did point out the lack of a mens rea component
in the Gang Congregation Ordinance at issue in that case. Morales,
527 U.S. at 55. However, the ordinance at issue there had a much dif-
ferent purpose and means for effectuating that purpose than the statute
at issue here.
In Morales, as we noted earlier, the City was concerned with the
potential for violence and criminal activity when groups of gang
members got together. Id. at 51. The Supreme Court held, however,
that a statute that prohibited gang members from meeting with any-
one, anywhere, and at any time could not stand without evidence that
these meetings had an apparently harmful purpose or effect. Id. at 58.
Virginia Code § 46.2-930, however, does not prohibit activity in any
public place, but rather is designed to protect motorists and pedestri-
2The Commissioner argues that this court must defer to any limiting
construction of Virginia Code § 46.2-930 given to it by a state court or
enforcement agency. Grayned v. City of Rockford, 408 U.S. 104, 110
(1972). The Attorney General’s construction of this statute as merely cre-
ating a traffic infraction rather than a criminal offense, however, cannot
prevail. This case was brought because authorities used the statute to
threaten and effect custodial arrests. And no other interpretation of the
statute has been advanced by the Commonwealth that would plausibly
solve the vagueness problems that arise from applying the statute to the
activities herein.
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ans from hazardous highway conditions in a few specific locations.
The criteria for determining whether a bridge should be designated
"No Loitering" all relate to whether individuals walking on the bridge
or driving on the road below might be injured by such loitering. And
while application of this anti-loitering statute to the Lytles was inap-
propriate, it is uncontested that the State may act to protect its sub-
stantial and legitimate interest in traffic safety. See Metromedia, Inc.
v. City of San Diego, 453 U.S. 490, 507-508 (1981).
Under the district court’s mens rea logic, the State would be unable
to protect this interest by prohibiting people from congregating in cer-
tain areas at certain times. That view is incorrect. The Supreme Court
has already held that valid safety interests "cannot be disregarded by
the attempted exercise of some civil right which, in other circum-
stances, would be entitled to protection." Cox v. Louisiana, 379 U.S.
536, 554 (1965). So, for example, "[o]ne would not be justified in
ignoring the familiar red light because this was thought to be a means
of social protest. Nor could one, contrary to traffic regulations, insist
upon a street meeting in the middle of Times Square at the rush hour
as a form of freedom of speech or assembly." Id.
Although Virginia Code § 46.2-930 as applied to the Lytles’
expressive protest is invalid, the State can properly enforce its interest
in other ways. For instance, where expressive or associative activity
runs afoul of concerns for traffic safety, time, place, and manner
restrictions have long been held constitutional. The "place" restriction
in this instance may be a bridge or overpass where the dangers to dis-
tracted motorists or to pedestrians are apparent. Such restrictions
must, of course, afford the notice that was lacking here and be "justi-
fied without reference to the content of the regulated speech, [be] nar-
rowly tailored to serve a significant governmental interest, and . . .
leave open ample alternative channels for communication of the
information." Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (internal quotations omitted). The district court’s rationale,
however, failed to recognize that restricting activity on particular
bridges to protect specific safety concerns might be constitutional.
This goes far beyond Supreme Court precedent.
III.
We turn next to the Lytles’ cross appeal on the issue of municipal
liability. The Lytles argue that the district court erred in granting sum-
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mary judgment to the City on the Lytles’ 42 U.S.C. § 1983 claim. We
disagree.
To prevail on a § 1983 claim, the Lytles must show that (1) they
were deprived of a federal statutory or constitutional right; and (2) the
deprivation was committed under color of state law. American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). As discussed
above, the Lytles have indeed shown a deprivation of their Fourteenth
Amendment right to due process. However, not every deprivation of
a constitutional right will lead to municipal liability. Only in cases
where the municipality causes the deprivation "through an official
policy or custom" will liability attach. Carter v. Morris, 164 F.3d 215,
218 (4th Cir. 1999).
A policy or custom for which a municipality may be held liable can
arise in four ways: (1) through an express policy, such as a written
ordinance or regulation; (2) through the decisions of a person with
final policymaking authority; (3) through an omission, such as a fail-
ure to properly train officers, that "manifest[s] deliberate indifference
to the rights of citizens"; or (4) through a practice that is so "persistent
and widespread" as to constitute a "custom or usage with the force of
law." Id. at 217 (internal citations omitted). The Lytles contend that
the City of Norfolk is liable on each of these four grounds.
A.
The Lytles first argue that the Davis Memo constituted an official
City policy because the memo contained a fixed plan for dealing with
protestors that was intended for indefinite enforcement. Lieutenant
Brewer was following this plan, they contend, when he threatened the
Lytles and therefore the City should be liable for their injury. The
Davis Memo, however, cannot constitute an official written policy of
the City because it was never approved by the City Manager in whom
the Norfolk City Charter vests ultimate authority over the police
department. See Norfolk City Charter §§ 50, 60.
The Lytles try to surmount this obstacle by arguing that the City
attempted to insulate itself from liability by deliberately allowing the
formulation of police procedures without City Manager review.
Although "egregious attempts by local governments to insulate them-
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selves from liability for unconstitutional polices are precluded," St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion),
there is no indication in the record that the City of Norfolk undertook
such actions. The City’s policies specifically require that no one with
a rank lower than Chief of Police issue any written directives. And
when the Chief of Police learned of the unauthorized memo, he
immediately suspended its enforcement and the application of Vir-
ginia Code § 46.2-930 to similar situations.
Moreover, the record indicates that few, if any, officers in the divi-
sion were even aware of the Davis Memo. The memo was never
pointed out to the officers, and its contents were never communicated
to them. Lieutenant Brewer testified that he had never seen the memo
before Captain Chamberlain handed it to him on July 16, 1999. Thus,
this document was merely an unauthorized memorandum written by
a police captain that was followed by a Norfolk police officer on a
single occasion — not an official City policy.
B.
The Lytles next argue that Captain Chamberlain was a final policy-
maker for the City for the purposes of setting policy within her Sec-
ond Patrol Division. Because the City Manager gave Captain
Chamberlain no direction or guidance concerning protest activity on
the Piccadilly Overpass, the Lytles argue that she had unbridled dis-
cretion to establish the City’s policy in this arena. Therefore, Cham-
berlain’s approval of the Davis Memo was sufficient to establish a
municipal policy for which the City should be held liable.
A "final policymaker" for the purposes of municipal liability is
someone who has "the responsibility and authority to implement final
municipal policy with respect to a particular course of action." Rid-
dick v. School Bd. of the City of Portsmouth, 238 F.3d 518, 523 (4th
Cir. 2000) (emphasis deleted). A local government may be held liable
for a decision made by an individual "whose edicts or acts may fairly
be said to represent official policy." Id. However, merely "going
along with the discretionary decisions made by one’s subordinates . . .
is not a delegation to them of the authority to make policy." Praprot-
nik, 485 U.S. at 130. Additionally, the type of policymaking authority
which can invoke § 1983 liability is "authority to set and implement
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general goals and programs of municipal government, as opposed to
discretionary authority in purely operational aspects of government."
Spell v. MacDaniel, 824 F.2d 1380, 1386 (4th Cir. 1987). Whether an
official has sufficient policymaking authority is a question of state
law. Praprotnik, 485 U.S. at 124. The examination of state law allows
for consideration of whether policymaking authority in fact rests
where state law has placed it. See Crowley v. Prince George’s
County, 890 F.2d 683, 686 (4th Cir. 1989).
The Norfolk City Charter provides that the City Manager, acting as
the director of public safety, is in charge of the police department. All
orders, rules, and regulations applicable to the entire police depart-
ment must be approved by the City Manager. The City Manager is
therefore clearly the final policymaker for purposes of § 1983 liabil-
ity. Some policies for the police department, so called standard oper-
ating procedures, may be approved by the Chief of Police rather that
the City Manager. At most, then, the Chief of Police could be consid-
ered a final policymaker for the police department. And no one lower
in rank than the Chief of Police is authorized to issue any written
directives.
Moreover, the City Manager and Chief of Police did not delegate
power to Captain Chamberlain. At all times the power to make deci-
sions for the department rested with them. In fact, as we have already
pointed out, the Chief of Police issued a directive that the Davis
Memo should not be followed as soon as he learned of its existence.
The police department has multiple captains and multiple lieutenants,
and it is far-fetched to assert that each of these individuals has the
power to be a final policymaker for the city. Captains are sixth in the
chain of command for the department, far from the level where ulti-
mate policy decisions are made. And while Virginia courts are split
as to who exactly may be a final policymaker for § 1983 purposes,
"none suggests that lower police officials have such authority."
Donaggio v. Arlington County, 880 F. Supp. 446, 462 (E.D. Va.
1995). Captain Chamberlain was not a final policymaker under state
law, and therefore liability will not attach through this means.
C.
Even if Captain Chamberlain is not deemed a final policymaker,
the Lytles argue that the City should be held liable because enforce-
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ment of Virginia Code § 46.2-930 was an unconstitutional custom or
practice. Such a custom "may arise if a practice is so persistent and
widespread and so permanent and well settled as to constitute a cus-
tom or usage with the force of law." Carter, 164 F.3d at 218 (internal
citation omitted). The Lytles contend that the Davis Memo repre-
sented a standard operating procedure, as evidenced by its placement
in the roll call book. These procedures, which do not need to be
approved by the City Manager, are by their very nature the custom
and practice of the division.
It is well settled that "isolated incidents" of unconstitutional con-
duct by subordinate employees are not sufficient to establish a custom
or practice for § 1983 purposes. Carter, 164 F.3d at 220. Rather, there
must be "numerous particular instances" of unconstitutional conduct
in order to establish a custom or practice. Kopf v. Wing, 942 F.2d 265,
269 (4th Cir. 1991). Here, there is no evidence that Virginia Code
§ 46.2-930 was ever enforced by any Norfolk police officer prior to
July 16, 1999, and it has not been enforced since. Police responded
to protestors on the bridge only twice prior to the incident in question,
neither time invoking this particular statute.
Moreover, the Davis Memo cannot be a custom or practice when
there is no evidence that any officer within the Second Patrol Division
ever even read it. Lieutenant Brewer had not heard of the Davis
Memo until the date of the incident in question. If applying Virginia
Code § 46.2-930 to protestors was a widespread practice of the divi-
sion, Brewer certainly would have known of it. The isolated incidents
on the Piccadilly Overpass, combined with a single application of the
statute, cannot approach the sort of widespread and permanent prac-
tice necessary to establish a custom.
D.
Lastly, the Lytles argue that the City should be liable because it
showed deliberate indifference to their rights by failing to adequately
train Norfolk police officers in citizens’ First and Fourteenth Amend-
ment rights. The way in which a City chooses to train its police force
is "necessarily a matter of policy." Spell, 824 F.2d at 1389. Section
1983 liability may attach if officers are not adequately trained "in
relation to the tasks the particular officers must perform," and this
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deficiency is "closely related to the ultimate injury." Canton v. Har-
ris, 489 U.S. 378, 390-91 (1989).
The training provided to officers in the Norfolk Police Department
is extensive, varied, and on-going. The officers must attend basic
recruit school, receive four months of field training, and attend in-
service training and regular seminars on special topics. The Lytles
have not provided any evidence that additional training would have
resulted in Lieutenant Brewer or the other Norfolk police officers
responding any differently. Officers cannot be expected to analyze the
complex issues of law surrounding every statute they are required to
enforce and then to decide whether the statute is constitutional. And
the City cannot be required to anticipate every situation that officers
will face. Board of Com’rs of Bryan Cty. v. Brown, 520 U.S. 397,
409-10 (1997). The situation here was hardly one that occurred with
sufficient frequency such that a failure to properly train officers to
handle it reflected a reckless indifference to the Lytles’ rights.
Further, a failure to train can only form a basis for liability if "it
can be shown that policymakers were aware of, and acquiesced in, a
pattern of constitutional violations." Canton, 489 U.S. 397
(O’Connor, J., concurring in part and dissenting in part). In this case,
the City Manager was unaware of any constitutional violations com-
mitted against protestors by the police department. And the three inci-
dents that the Lytles point to do not constitute a pattern of
unconstitutional conduct of which the City’s final policymakers
should have been aware. See Carter, 164 F.3d at 220. We can thus
find no action or omission on the part of the Norfolk Police Depart-
ment that would lead to municipal liability.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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