White v. City of Birmingham (96 F. Supp. 3d 1260, 2015)

REVISED MEMORANDUM OPINION

KARON OWEN BOWDRE, Chief Judge.

This § 1983 case comes before the court, in Plaintiffs Justin White and ' Latisha Williams’ consolidated cases, on Defendants City of Birmingham, Alabama; May- or William A. Bell; Officer Herman Harris, Jr.; and Officer Eric Smith’s “Motion for Summary Judgment and Supporting Evidence,” (Doc. 34); White and Williams’ “Motion to Strike Defendants’ Exhibits Five (5) & Six (6),” (Doc. 43); .White and Williams’ “Motion for Judicial Notice,” (Doc. 44); and the Defendants’ “Motion to Strike,” (Doc. 54).

For the reasons discussed below, the court GRANTS the Defendants’ motion for summary judgment, (Doc. 34); GRANTS in part and DENIES in part White and Williams’ motion for judicial notice, (Doc. 44); DENIES White and Williams’ motion to strike, (Doc. 43); and DENIES the Defendants’ motion to strike, (Doc. 54).

In general, the undisputed facts show that on November 30, 2012, plaintiff Williams and Deandre Major, were passengers in a vehicle driven by plaintiff White. Defendants BPD Officers Harris and Smith heard a shot and Officer Smith believed an occupant of White’s vehicle fired a weapon at the unmarked Birmingham Police Department vehicle driven by defendant BPD Officer Harris with defendant BPD Officer Smith and defendant Birmingham Mayor Bell as passengers. Officer Harris followed White’s vehicle onto Interstate 59 while Officer Smith radioed for backup. As White raced down Interstate 59, his steering wheel locked up and he crashed. Officers Harris and Smith stopped near White’s vehicle and attempted to apprehend the occupants of White’s vehicle who Officers Harris and Smith thought to be armed and willing to shoot. Officers Harris and Smith fired their weapons a total of 19 times at the vehicle, hitting White twice and Williams once.

Once Officers Harris and Smith regained control of the situation and backup arrived, ambulances transported White and Williams to the University of Alabama Birmingham medical center. White received treatment at UAB and remained at UAB for two weeks and a few days. Williams received treatment at UAB and UAB released her after two days. During part of their stays at UAB, BPD restrained White and Williams with handcuffs and posted BPD officers near their rooms.

White and Williams have now sued pursuant to 42 U.S.C. § 1983 and Alabama state law, arguing that the City, Mayor Bell and Officers Harris and Smith violated their constitutional rights by using excessive force, and violated their rights under state law by assaulting, battering, and falsely imprisoning them. The Defendants argue that they are entitled to summary judgment on all of White and Williams’ claims. The court agrees with the Defendants because the Defendants are immune from suit on. all of White and Williams’ claims.

Before addressing the Defendants’ summary judgment motion, however, the court must rule on several motions to determine the record before it for summary judgment purposes.

I.Motion for Judicial Notice

White and Williams request that the court take judicial notice of the following facts pursuant to Federal Rule of Evidence 201:

1. A Consent Decree filed in McGill v. City of Birmingham, 74-G-0692, on June 29,1984, (Doc. 44-1);

2. A 2013 Motion filed by the City of Birmingham seeking relief from the requirements imposed by the Consent Decree in McGill, (Doc. 44-2);

3. An Order modifying in part the Consent Decree in McGill, (not attached);

4. That the calendar date of March 14, 2014 occurred after the date of November 20, 2012;

5. That the calendar date of December 1, 2012 occurred before the calendar date of March 14, 2014;

6. That the calendar date of December 2, 2012 occurred prior to the calendar date of March 14, 2014;

7. That the calendar date of December 30, 2012 occurred before the calendar date of March 14, 2014;

8. That a living person born on March 8, 1994 was eighteen years of age on November 30, 2012;

9. That the article Birmingham May- or William Bell Said He Was Not The Target Of A Wild Interstate Shooting Friday Night, written by Carol Robinson, was posted to the website of Alabama Media Group on December 3, 2012, (Doc. 44-3);

10. That the Birmingham News article, Video Of Police Beating Prompts Birmingham Mayor Bell To Calls For More Training, written by Carol Robinson, Joseph D. Bryant, and Jeremy Grey was published on March 31, 2011, at 10:55 p.m. and updated on April 1, 2011, at 6:45 a.m., (Doc. 44-4);

11. That the Birmingham News article, Birmingham City Council Summons Police Chief AC. Roper For Hearing On Allegations About Department’s Use Of Force, written by Joseph D. Bryant, was published on April 20, 2011, at 7:30 a.m., (Doc. 44-5);

12. That the Birmingham News article, Birmingham Council President Wants Police Chief To Report On Excessive-Force Complaints Against Department, written by Joseph D. Bryant, was published on April 19, 2011, at 11:45 a.m. and updated on April 19, 2011, at 6:37 p.m., (Doc. 44-6); and

13. Any case filed in the United States District Court For The Northern District of Alabama, Southern Division.

(Doc. 44) (emphasis added). Generally, these items can be grouped into court documents (items 1, 2, 3, and 13), logical facts (items 4, 5, 6, 7, and 8), and news articles (items 9,10,11, and 12).

The court may take judicial notice when an adjudicative fact “is not subject to reasonable dispute” because the fact is either (1) “generally known within the trial court’s jurisdiction;” or (2) “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201; see United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994) (finding only indisputable facts may be judicially noticed).

A.Court Documents

White and Williams request the court take judicial notice of certain court documents in items 1, 2, 3, and 13. The Defendants do not object. While the court “may not infer the truth of all the facts in the documents contained in [its own] records, the Court may take judicial notice of those records.” In re Steeley, 243 B.R. 421, 427 (Bankr.N.D.Ala.1999); see Ackermann v. United States, 178 F.2d 983, 985 (5th Cir.1949). Therefore, the court GRANTS the motion as to the fact that the court documents exist and DENIES the motion as to the factual accuracy of the content of court documents.

B. Logical Facts

White and Williams request the court take judicial notice of certain logical facts concerning dates and ages in items 4, 5, 6, 7, and 8. The Defendants do not object. Therefore, the court GRANTS the motion as to these logical facts.

C. News Articles

White and Williams request the court take judicial notice that the news articles in items 9, 10, 11, and 12 were published. The Defendants argue that these items do not meet the requirements for judicial notice in the Federal Rules of Evidence.

The court GRANTS the motion as to the fact that the news articles were published. However, the court DENIES the motion as to the factual accuracy of the news articles because the “facts” printed in the news articles are still subject to reasonable dispute. See Shahar v. Bowers, 120 F.3d 211, 214, nt. 5 (11th Cir.1997) (“[Movant] has shown us no case — and we have found none — where a federal court of appeals took judicial notice of the unofficial conduct of one person based upon newspaper accounts ... about that conduct.”). Additionally, the court DENIES the motion as to White and Williams’ characterization of the news articles. See In re Towne Servs., Inc. Sec. Litig., 184 F.Supp.2d 1308, 1318 (N.D.Ga.2001) (finding court may not take judicial notice of “conclusory characterizations of such statements in the plaintiffs’ complaint”).

D. Summary

In summary, the court GRANTS in part and DENIES in part White and Williams’ motion for judicial notice.

II. White and Williams’ Motion to Strike

White and Williams ask the court to strike exhibits five and six to the Defendants’ motion for summary judgment. Exhibit five is Williams’ statement to BPD Investigator Jeff Steele on December 1, 2012 at 10:31 a.m. at UAB describing the events of November 30, 2012 leading up to and after White and Williams’ encounter with BPD. (Doc. 36-5). Exhibit six is a declaration by Investigator Steele describing the procedures he took during and after his interview with Williams. (Doc. 36-6).

Whether to grant a motion to strike is an evidentiary ruling within the court’s discretion. See United States v. Stout, 667 F.2d 1347, 1353 (11th Cir.1982) (“A trial court’s ruling as to the materiality, relevancy or competency of testimony or exhibits will ordinarily not warrant reversal unless constituting an abuse of discretion.” (internal citations omitted)). For the reasons discussed below, the court DENIES White and Williams’ motion to strike.

A. Competency

White and Williams first argue that Williams’ statement should be excluded because she was a minor under the influence of medication when she gave the statement to Investigator Steele. First, whether Williams was a minor when she made her statement is irrelevant. “Every person is competent to be a witness unless [the Federal Rules of Evidence] provide otherwise.” Fed.R.Evid. 601; see United States v. Perez, 526 F.2d 859, 865 (5th Cir.1976) (“The ultimate test of competence of a young child is whether [she] has the requisite intelligence and mental capacity to understand, recall and narrate [her] impressions of an occurrence.”).

Second, whether Williams was medicated does not render her incompetent. Williams argues she was under the influence of pain medication when Investigator Steele interviewed her on December 1, 2012 at 10:31 a.m. and some medical records indicate that UAB prescribed her medication as early as November 30, 2012. (Doc. 36-7, 53). Rather than exclusion, however, the court finds that Williams’ statement is better addressed by taking every reasonable inference from her statement in White and Williams’ favor for purposes of summary judgment. See McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 (11th Cir.2003) (using most favorable testimony of plaintiff on summary judgment when plaintiff was medicated when providing some parts of testimony).

B. Failure to Follow Regulations

White and Williams next argue that Williams’ statement should be excluded because BPD did not follow its internal procedures when interviewing her. BPD regulations concerning “Arrests-Juveniles” require “[a]ll officers taking a juvenile into custody” to “notify the juvenile’s parents or legal guardian.” (Doc. 43-8, 3 (emphasis added)). Further, “[t]he officer advising a juvenile of ‘Constitutional Rights’ (Miranda Warning) shall have the juvenile ... sign the Rights Waiver Form.” (Doc. 43-8, 10-11 (emphasis added)). “Juvenile means “a child under the age of 18.... ” (Doc. 43-8, 1 (emphasis added)).” Williams was a minor when Investigator Steele interviewed her because she was only 18. However, the explicit words of the regulations state that the regulations only apply to persons under 18. Thus, Investigator Steele did not violate the regulations.

Further, even if BPD regulations applied, mere violation of the regulations provides no basis to strike Williams’ statement absent an independent constitutional violation. See United States v. Caceres, 440 U.S. 741, 754-55, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); see United States v. Teers, 591 Fed.Appx. 824, 837-38 (11th Cir.2014) (finding that even if a government agent violated IRS regulations, the violation of the IRS regulation was not a ground to suppress a plaintiffs statement to agent). In Teers, the Eleventh Circuit explained:

[A] rigid application of an exclusionary-rule to every regulatory violation could have a serious deterrent impact on the formulation of additional standards to govern prosecutorial and police procedures. [I]t is far better to have rules like those contained in the IRS Manual, and to tolerate occasional erroneous administration of the kind displayed by this record, than either to have no rules except those mandated by statute, or to have them framed in a mere precatory form.

591 Fed.Appx. at 824 (internal citations omitted). Therefore, failure to follow BPD regulations is no basis to strike Williams’ statement.

C. Exclusionary Rule

White and Williams next contend that Williams’ statement should be excluded under a civil application of the exclusionary rule because Investigator Steele did not read Williams her Miranda rights prior to beginning a custodial interrogation.

The Supreme Court has “repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials.” Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (inapplicable to parole hearing); see United States v. Calandra, 414 U.S. 338, 354, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (inapplicable to grand jury proceedings); see United States v. Janis, 428 U.S. 433, 459-60, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (inapplicable to civil claim for tax refund); see I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1034, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (inapplicable to deportation hearing).

Other courts have found the exclusionary rule inapplicable in § 1983 claims. See Townes v. City of New York, 176 F.3d 138, 149 (2d Cir.1999); see Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir.1997); see Thompson v. Carthage Sch. Dist., 87 F.3d 979, 981 (8th Cir.1996); see Medlock v. Trustees of Indiana Univ., 738 F.3d 867, 872 (7th Cir.2013); see Chatman v. Slagle, 107 F.3d 380, 382 (6th Cir.1997); accord Shorter v. Dollar, No. 3:11CV531-WHA, 2011 WL 5358652, at *10 (M.D.Ala. Nov. 7, 2011).

To determine whether to apply the judge-made exclusionary rule, the court must “weigh the likely social benefits of excluding unlawfully seized evidence against the likely costs.” Lopez-Mendoza, 468 U.S. at 1041, 104 S.Ct. 3479. Benefits include deterring unlawful police conduct. Costs include the loss of probative evidence and more expensive adjudications. Id. Here, exclusion of Williams’ statement may have some deterrent effect on BPD’s procedures because BPD both collected the statement from Williams and is sued by Williams. See Janis, 428 U.S. at 458, 96 S.Ct. 3021 (finding deterrent effect more “highly attenuated” when exclusionary. rule removes evidence in civil case against a different sovereign than collected the evidence). However, Williams’ statement is of immense probative value to the court’s analysis of the summary judgment motion.

On balance, given the overwhelming case law against extending the exclusionary rule to civil cases, the court will not strike Williams’ statement as the fruit of an alleged constitutional violation.

D. Hearsay

White and Williams further argue that Williams’ statement should be excluded because it is hearsay that does not fall within any hearsay exception. However, “[t]he statement is offered against an opposing party and ... was made by the party in an individual or representative capacity.” Fed.R.Evid. 801(d)(2)(A). “Of course, statements made out of court by a party-opponent are universally deemed admissible when offered against him.” U.S. for Use & Benefit of Carter Equip. Co. v. H.R. Morgan, Inc., 544 F.2d 1271, 1273 (5th Cir.1977). Thus, the hearsay ground fails to hold water.

E. Summary

White and Williams have offered no legitimate basis for excluding Investigator Steele’s declaration describing the procedures he took during and after Williams’ interview. Thus, Investigator Steele’s declaration should not be excluded.

In summary, the court DENIES White and Williams’ motion to strike exhibits 5 and 6 to the Defendants’ motion for summary judgment. However, the court will read Williams’ statement in the light most favorable to White and Williams and will draw every reasonable inference in their favor.

III. The Defendants’ Motion to Strike

The Defendants ask the court to strike exhibits L, LI, L2, L3, L4, L5; portions of exhibit M; and exhibits R, S, and U to White and Williams’ response to the Defendants’ motion for summary judgment. Exhibits L and LI are BPD incident/occurrence reports (“IO reports”) related to the drive-by shooting of Alfred Murphy on November 30, 2012. Exhibits L2, L3, L4, and L5 are IO reports related to White and Williams’ November 30, 2012 encounter with BPD. Exhibit M is Deandre Major’s declaration. Exhibits R, S, and U are news reports.

Whether to grant a motion to strike, an evidentiary ruling, falls within the discretion of the district court. See Stout, 667 F.2d at 1353. For the reasons discussed below, the court DENIES the Defendants’ motion to strike.

A. Incident/Offense Reports

The Defendants argue that the IO reports are inadmissible because the reports themselves are hearsay and because the IO reports contain hearsay within hearsay. L and LI contain the time of the Murphy shooting that Murphy communicated to BPD Officer Penn who subsequently recorded the time in two IO reports. L2, L3, L4, and L5 contain the fact that BPD detained White and Williams as suspects on November 30, 2012, which was communicated to various BPD officers who then recorded the fact in various IO reports.

Generally, inadmissible hearsay cannot be considered on a motion for summary judgment. See Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.1999). However, a court may consider a hearsay statement “if the statement could be reduced to admissible evidence at trial” because, for example, the statement falls within a hearsay exception or is not offered for the truth of the matter asserted. Id. at 1323-24 (internal quotations omitted and emphasis added); see Gamble v. PinnOak Res., LLC, 511 F.Supp.2d 1111, 1123, nt. 5 (N.D.Ala.2007) (finding court may consider hearsay statement for purposes of summary judgment if the plaintiffs “could feasibly authenticate most of the exhibits and overcome hearsay objections at trial”, even if the statement is hearsay at the summary judgment stage). “Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.” Fed.R.Evid. 805.

First, the IO reports themselves are hearsay but are admissible under the public records exception to the hearsay rule because they are the official reporting document for BPD for the November 30, 2012 investigation. See Fed.R.Evid. 803(8)(A)(iii); see Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (finding statements of opinion in police reports admissible if based on a factual investigation and otherwise trustworthy). Also, the IO reports are hearsay but are excluded from the hearsay rule as statements by the agent of a party opponent because the IO reports are used by White and Williams against the Defendants and were made by BPD officers performing official police tasks within the scope of their employment as agents of the City. See Fed.R.Evid. 801(d)(2)(D).

Second, the statements to BPD officers in L and LI are hearsay but could be reduced to admissible form at trial. The only hearsay within hearsay in L and LI is Murphy’s statement to Officer Penn that “on the listed date and time [November 30, 2012 at 9:20 p.to.] he was driving the listed vehicle.... ” (Doc. 42-19). This statement could be reduced to admissible form at trial because Murphy could be compelled to testify at trial about his statement. Alternatively, this statement could be viewed as an excited utterance if the proper foundation were laid at trial because Officer Penn recorded the statement soon after Murphy was involved in a drive by shooting. See Fed.R.Evid. 803(2).

Third, the statements to BPD officers in L2, L3, L4, and L5 are hearsay but could be reduced to admissible form at trial. The only hearsay within hearsay in exhibits L2, L3, L4, and L5 are the following statements recorded by Officer Lewis in L3: (1) “I was informed by officer Harris that the mayor was in the vehicle and he was safe”; and (2) ‘When it was announced that all three suspects were in custody and everything was 10~24(ok), I observed Lt. Irwin and Sgt. Ward of North Precinct and they appeared to have everything under control.” (Doc. 42-22). The remainder of L3 and all of L2, L4, and L5 do not contain any other hearsay within hearsay. (Doc. 42-21; Doc. 42-22; Doc. 42-23; Doc.42-24).

The first statement by Officer Harris to Officer Lewis is hearsay but is excluded from the hearsay rule as a statement by Officer Harris, a party opponent. See Fed.R.Evid. 801(d)(2)(D). The second statement by an unnamed speaker to Officer Lewis is hearsay but could be reduced to admissible form at trial because White and Williams could presumably call Officer Lewis at trial to determine who made the statement that “all three suspects were in custody” and could then subsequently elicit the statement from the speaker.

Finally, to the extent the Defendants argue that exhibits L, LI, L2, L3, L4, and L5 do not reflect the information that White and Williams’ ascribes to them, those arguments go to the weight of the evidence and are not a basis to strike the exhibits.

B. Declaration by Deandre Major

The Defendants argue that paragraph nine of exhibit M should be stricken because the statement is opinion testimony that is not based on scientific, technical, or other specialized knowledge. See Fed. R.Evid. 701. Paragraph nine is Deandre Major’s declaration that “[w]hen the car crashed, I was knocked out from the crash.” (Doc. 42-25, 3). The Defendants’ argument is silly. Major is not offering a medical opinion about whether he became unconscious; he is stating a fact he knows — that the crash knocked him out.

B. News Articles

The Defendants argue that exhibits R, S, and U should be stricken because the news articles are- hearsay offered by White and Williams to prove the truth of the matter asserted in the news articles, that BPD had a policy or custom condoning excessive force.

News articles are generally not admissible to establish the truth of their contents. See United States v. Baker, 432 F.3d 1189, 1211 (11th Cir.2005). However, news articles may be admissible if offered for other purposes. Baker, 432 F.3d at 1211; see United States v. Michtavi, 155 Fed.Appx. 433, 435 (11th Cir.2005) (to show articles existed); see Estate of O’Connor v. United States, No. 8:12-CV-02070-T-27MA, 2013 WL 1295925, at *2, nt. 8 (M.D.Fla. Mar. 28, 2013), appeal dismissed (Oct. 9, 2013) (to show party had notice of-allegations in article); see Carter v. District of Columbia, 795 F.2d 116, 126 (D.C.Cir.1986) (to show notice of pattern of police misconduct).

WTite and Williams do not offer Exhibits R, S, and U to prove the truth of the matter asserted and only offer the news articles to show that the articles existed and that the City had notice of the incidents the articles discussed to infer a need for additional excessive force training. These uses are not hearsay.

The Defendants argument that the news articles should be stricken because they are not authenticated fails. See Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1530 (11th Cir.1993) (finding news articles may be considered at summary judgment even if inadmissible at trial). Further, the AL.com news articles are analogous to traditional newspaper articles and could be found self-authenticating at trial. See Fed.R.Evid. 902(6).

D. Summary

In summary, as to the Defendants’ evi-dentiary matters, the court DENIES the Defendants’ motion to strike exhibits L, LI, L2, L3, L4, L5; portions of exhibit M; and exhibits R, S, and U to White and Williams’ response to the Defendants’ motion for summary judgment.

IV. Motion for Summary Judgment

White and Williams sued the City, May- or Bell, Officers Harris and Smith, and several unserved or fictitious parties under § 1983 for violations of White and Williams’ constitutional rights. Wfiiite and Williams also alleged the Defendants falsely imprisoned, assaulted, and battered them. For the reasons discussed below, the court finds the Defendants are entitled to summary judgment on all of Wfiiite and Williams’ claims.

A. Facts

The facts below are taken in the light most favorable to Wbiite and Williams.

1. Earlier on November 30, 2012

On the evening of -November 30, 2012, beginning at 5:00 p.m., plain clothes BPD Officer Herman Harris, a member of May- or William Bell’s security detail, drove Mayor Bell to and from several official events in an unmarked black Suburban owned by BPD and assigned to the May- or’s office. Plain clothes BPD Officer Eric Smith, another member of Mayor Bell’s security detail, accompanied Officer Harris and Mayor Bell. Officer Harris drove, Officer Smith sat in the front passenger seat, and Mayor Bell sat in the rear seat on the passenger side.

Also on November 30, 2012, plaintiff Justin White drove Deandre Major and plaintiff Latisha Williams around the Smithfield area of Birmingham near Parker High School in his white Lincoln Town Car four-door sedan. White drove, Major sat in the front passenger seat, and Williams sat in the rear seat on the driver’s side.

Officers Harris and Smith first saw White’s vehicle as it pulled up and stopped at the traffic light on the corner of 8th Avenue and 6th Street, traveling east in the far right lane. A burgundy and gold Suburban driven by Alfred Murphy also stopped at the traffic light next to White’s vehicle.

2.The Murphy Shooting

Officer Smith saw a black male fire three shots into the burgundy and gold Suburban from the passenger side window' of White’s vehicle. Officer Harris also saw a black male fire at the burgundy and gold Suburban, heard two shots, and also saw one muzzle flash at 7:30 p.m. Mayor Bell also saw an individual fire approximately three to five shots from White’s vehicle. White and Williams invoked their Fifth Amendment rights against self incrimination when asked whether Major shot at the burgundy and gold Suburban and the court infers they witnessed Major shoot at the burgundy and gold Suburban.

However, a BPD incident/occurrence report (“IO report”) completed by BPD Officer Penn after the Murphy shooting states that the' shooting occurred at 9:30 p.m., several hours after BPD took White and Williams into custody, and states that the shooting occurred on the 1600 block of 8th Avenue North, half a mile from where the Mayor’s vehicle encountered White’s vehicle. (Doc. 42-19). Thus, for purposes of summary judgment, taking the conflicting evidence in the light most favorable to White and Williams, the court assumes that the Murphy shooting did not involve the occupants of White’s vehicle.

3. The Arkadelphia Road Shooting

After encountering White’s vehicle, Officer Smith requested backup. Officer Harris circled the block and eventually wound up behind White’s vehicle. White knew that he was being followed, but did not know the Mayor’s vehicle belonged to BPD and felt threatened by the Mayor’s unmarked vehicle. He did not call 911 or head towards a police station, however. White attempted to evade the Mayor’s vehicle by driving around 45 to 50 miles per hour through a residential neighborhood, but he stopped at all stop signs, used his blinkers, and drove carefully. Officer Harris followed White’s vehicle onto Arka-delphia Road heading north. Officer Smith advised Officer Harris to stay back a safe distance.

At the corner of 9th Avenue and Arka-delphia Road, Officer Harris heard a shot fired, but did not see a muzzle flash. Officer Smith also heard a shot, but did not see a shot fired. Officer Smith “reasonably believed ... that they [the occupants of White’s vehicle] were firing at us.” (Doc, 42-11, 24-25).

4. The Interstate 59 Shooting

White’s vehicle entered the on ramp to Interstate 59 at Arkadelphia Road at a high rate of speed, followed by the Mayor’s vehicle. White was afraid because he did not know who was following him. Officer Harris continued to follow directly behind White’s vehicle, but did not activate the pólice lights or sirens on the Mayor’s vehicle. Officer Smith had already called for backup, but backup had not yet arrived. Around the 17th street exit, White’s steering wheel locked up. Moments later, White’s vehicle then veered across traffic and crashed into the right side concrete barrier between the 17th Street and 22nd Street exits with the front of White’s vehicle facing the concrete barrier.

John Presley Hargrove, III was driving home from Princeton Baptist Medical center around 7:30 p.m. and witnessed White’s vehicle crash. He stopped his vehicle 80 yards away and saw the Mayor’s vehicle come to a stop in the left lane of the interstate about six or seven seconds later.

After the crash, the parties’ and witness’ recollections of events vary widely.

a. White’s Perspective

During the crash, White hit his head on the steering wheel, but remained conscious. White asked everyone in the vehicle if they were ok. The wreck knocked Major unconscious. White saw police lights on the Mayor’s vehicle and saw “two dudes standing outside the [Mayor’s vehicle]” after the crash. (Doc. 36-7,18).

White tried to open the door, but the doors remained locked because his vehicle remained in drive. The windows remained up in the vehicle. White put his hand to the door to open it, but quickly let go when he heard gunshots. He then “heard somebody yell something” that “sounded like he said shots fired.” (Doc. 36-8, 19). White didn’t hear anyone say “surrender” or “put your hands up” and White did not put his hands up.

BPD shot into the vehicle and hit White in the ankle and back. After being shot, White “jumped in the back seat” for cover. (Doc. 36-8, 20). White did not see anyone shoot from his vehicle after the crash.

b. Williams’ Perspective

During the crash, Williams hit the seat in front of her, but remained conscious. Williams heard the air bags deploy and saw smoke. Williams heard shots “right as soon as the car crashed.” (36-7, 20). After hearing shots, Williams got down closer to the floor of the vehicle and closed her eyes. Williams did not hear anyone say “show me your hands.” (Doc. 36-7, 20). Williams did not see police lights on the Mayor’s vehicle.

Williams said the shooting went on for one or two minutes. Williams heard White say he was shot and saw White jump in the backseat.

BPD shot into the vehicle and hit Williams in her knee which she was still in the vehicle. When the shooting stopped, Williams opened the car door and stuck her foot out of the car. She also put her hands up. Williams did not see anyone shoot from White’s vehicle after the crash.

c.Officers Harris and Smith’s Perspective

After the crash, Officers Harris and Smith sat in the Mayor’s vehicle for a short time, long enough to watch traffic stop behind the Mayor’s vehicle. Officer Smith then exited the passenger side of the vehicle with his .380 pistol drawn and approached White’s vehicle to conduct a felony traffic stop. Officer Smith crossed one lane of traffic and attempted to get behind White’s vehicle. Officer Harris exited the driver’s side of the vehicle and took cover near the front of the Mayor’s vehicle.

Officer Smith yelled, “[l]et me see your hands,” but the occupants of White’s vehicle did not show their hands. (Doc. 36-3, 56). Officer Smith thought the occupants of White’s vehicle “were scrambling from the front to the back seat. And it appeared as if they were either going for a weapon or searching for a weapon.” (Doe. 36-3, 54-55). Officer Harris also identified himself as a BPD officer and said “[l]et me see your hands.” (Doc. 36-1, 47). The occupants of White’s vehicle continued to move around and did not show their hands. Officer Harris heard Officer Smith yell “Birmingham police, get out of the car.” (Doc.36-1,46).

As Officer Smith crossed the interstate about eight or nine feet behind White’s vehicle, he heard a shot and saw a muzzle flash from White’s vehicle. Officer Harris also heard a shot from White’s vehicle and saw an occupant of White’s vehicle shoot from the passenger side of the vehicle toward Officer Smith.

Officer Smith told Officer Harris, “they [sic] shooting.” (Doc. 35, ¶ 47). Officer Smith felt afraid and believed that his life was in danger. Officer Smith then began firing at White’s vehicle as he retreated .toward Hargrove’s vehicle. Officer Smith fired seven shots, reloaded, and fired two additional shots. Officer Harris also shot at White’s vehicle 10 times.

Officer Smith used Hargrove’s passenger door as cover to reload. Officer Smith did not hear any gunshots while reloading. Officer Smith fired two additional shots after reloading because Officer Smith saw the occupants of White’s vehicle scrambling inside the vehicle.

Officers Harris and Smith admit they shot White in his back and ankle and shot Williams in her knee while they were still in White’s vehicle. Officer Harris stopped firing when the occupants of White’s vehicle put their hands in the air. Officer Smith stopped firing when he heard sirens and knew backup had arrived.

d. Mayor Bell’s Perspective

After the crash, Mayor Bell saw Officer Smith exit the Mayor’s vehicle immediately after the vehicle stopped. Mayor Bell heard gunshots. Officer Harris or Officer Smith told Mayor Bell to get down and Mayor Bell leaned down so that his shoulder touched the bench part of the back seat of the Mayor’s vehicle. Mayor Bell saw Officer Harris exit the Mayor’s vehicle. Mayor Bell heard Officer Smith state: “[g]et out of the vehicle. Put your hands up, get out of the vehicle.” (Doc. 36-2, 192). All of these actions happened in less than ten seconds.

Mayor Bell heard gunshots, but did not know where the gunshots originated. Mayor Bell heard three different guns firing, each with a different volume. Mayor Bell sat back up from time to time during the gunfire, but did not see Officer Harris, Officer Smith, or anyone in White’s vehicle fire a gun. Mayor Bell heard either Officer Harris or Officer Smith instruct the occupants of White’s vehicle to show their hands or get out of the vehicle again after the shooting ended.

Mayor Bell did not exit the Mayor’s vehicle at any time during the shooting.

e. Hargrove’s Perspective

After the crash, Hargrove began to exit his vehicle to provide first aid to the occupants of White’s vehicle. Hargrove then saw Officer Smith exit the passenger side of the Mayor’s vehicle with his gun drawn. Hargrove changed his mind and decided to stay in his vehicle.

Hargrove heard Officer Smith say “show me your hands,- get out of the vehicle.” (Doc. 36-10, 6). Hargrove also saw another person exit the Mayor’s vehicle.

Hargrove then heard two gunshots and heard Officer Smith yell “they’re shooting at us, they’re shooting at us.” (Doc. 36-10, 6). Hargrove saw Officer Smith fire his weapon while crossing lanes of traffic and approaching White’s vehicle. Officer Smith began firing about 10 to 12 seconds after exiting the Mayor’s vehicle. Har-grove estimated that Officer Smith fired his weapon four or five times.

Hargrove leaned down in his seat for safety. Officer Smith appeared by Har-grove’s vehicle and Hargrove told Officer Smith to use his passenger side door for cover.

Finally, the shooting stopped, but Har-grove did not know why the shooting stopped. Hargrove never saw any occupant of White’s vehicle fire a weapon.

5. At the Hospital

After the shooting ended, a uniformed BPD officer who had arrived at the scene pulled Williams out of the car by her jacket, threw her to the ground, and placed her in handcuffs. The officer also placed White in handcuffs. After being handcuffed, BPD questioned White and Williams, but BPD did not read White and Williams their Miranda rights.

An ambulance transported White to UAB hospital where UAB staff operated on his two gunshot wounds. White remained at UAB for two weeks and two or three days. He remained handcuffed for two days at UAB. BPD officers escorted White’s family members out of UAB on November 30, 2012. On December 1, 2012, White asked to see his family, but BPD officers refused. White saw his family for the first time on December 2, 2012. BPD officers told White that he could not leave UAB until he gave a statement to BPD, but White did, in fact, leave without giving a statement.

An ambulance also transported Williams to UAB. Williams could not stand when the ambulance arrived on Interstate 59. Thus, BPD placed Williams on a gurney and handcuffed her to the gurney. When she arrived at UAB, the ambulance personnel left Williams on a gurney in the hallway for about ten minutes and UAB personnel then moved her to a room. BPD officers remained with Williams. A BPD officer asked Williams if she knew what kind of gun she had been shot with.

Later, Williams spoke with BPD Investigator Jonathan Ross. Investigator Ross told Williams she would need to give a statement to BPD and instructed her to mention the shooting and the “fourth person” in the vehicle when interviewed by BPD.

Williams entered surgery for her gunshot wound on December I, 2012, around 5:52 p.m. Two BPD officers remained with Williams after her surgery and accompanied her to get CT scans and X-rays. Williams complained after her surgery about the tightness of her handcuffs to BPD Officer Law.

Later, Williams gave a statement to BPD Investigator Jeff Steele while medicated. BPD released Williams from handcuffs after she gave her statement. BPD did not allow Williams to make any telephone calls until after she spoke with Investigator Steele. Williams asked to speak to her mother during her interview with Investigator Steele. However, BPD and UAB officials did not allow Williams to talk with or see her mother until December 2, 2012. A UAB nurse told Williams’ mother by phone that she would be arrested if she attempted to see her daughter.

UAB discharged Williams on December 6th or 7th. During her discharge, a BPD officer told Williams she might have to come with him to the Birmingham City Jail. Half-an-hour later, after the BPD officer made a phone call, Williams left UAB.

6. The Investigation

After the shooting ended, Officers Harris and Smith waited at the scene until instructed to leave. BPD Sergeant Katherine Snider, the first evidence technician at the scene, arrived at 8:15 p.m. Sergeant Snider photographed Officers Harris and Smith together at least 13 minutes after the shooting. BPD took Officers Harris and Smith to police headquarters separately and placed them in separate rooms. An evidence technician took Officers Harris and Smith’s clothes, weapons, and ammunition.

Sergeant Snider did not find a weapon in White’s vehicle. Besides Officers Harris and Smith’s weapons, Sergeant Snider did not find another weapon on Interstate 59; BPD did recover a Ruger .40 caliber gun below the interstate where White’s vehicle crashed. Sergeant Snider did not find any .40 caliber shell casings on or below Interstate 59. BPD Officer Roxann Murry found a bullet jacket matching the Ruger .40 caliber at the intersection of 8th Avenue and 6th Street.

The Mayor’s vehicle did not have any bullet holes in it, but White’s vehicle had 11 bullet holes in it. Sergeant Snider also found multiple .380 casings behind White’s vehicle. Sergeant Snider’s evidence technician report states that 10 shell casings from Officer Harris’s 9mm pistol were recovered.

BPD listed White and Williams as suspects on IO reports for the Interstate 59 shooting, but White and Williams were not charged with any crimes related to the events of November 30, 2012. Investigator Ross later contacted Williams and told her not to file a civil lawsuit against the City because BPD could make her look like a criminal.

BPD and the Alabama Bureau of Investigation conducted investigations into the shooting. BPD placed Officers Harris and Smith on paid administrative leave for six months after the shooting. BPD held a disciplinary hearing for Officer Smith and he received two letters of reprimand for failure to properly certify his weapon. BPD did not reprimand Officer Harris for the shooting.

Officer Smith has worked for BPD for 19 years. He attended the police academy and holds an Alabama Peace Officers Standards and Training certification. He has attended continuing education courses throughout his career in areas related to the use of force. Officer Smith previously received letters of censure in 1998 and 2001 and received an oral reprimand in 2004.

Officer Harris has worked for BPD for 20 years. He attended the police academy and also holds an Alabama Peace Officers Standards and Training certification. He has attended continuing education courses throughout his career in areas related to the use of force. Officer Harris previously received a reprimand before 2007 for using hands on a handcuffed suspect.

BPD has polices for

use of force, the firearms review committee, firearms and ammunition, backup unit(s) roles and responsibility, serious injury or death involving police officer, traffic patrol techniques, vehicle pursuit policy, incident reports, detectives, investigations, juvenile arrests, temporary restraining devices, felony arrest time extension request procedures, guarding prisoners at hospitals, police officer’s oath of office, departmental goals and objectives, duty requirements, and laws and ordinances.

(Doc. 36-12, 2).

B. Standard of Review

Summary judgment is an integral part of the Federal Rules of Civil Procedure. Summary judgment allows a trial court to decide cases when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56. When a district court reviews a motion for summary judgment, it must determine two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the moving party is entitled to judgment as a matter of law. Id.

The moving party “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56). The moving party can meet this burden by offering evidence showing no dispute of material fact or by showing that the non-moving party’s evidence fails to prove an essential element of its case on which it bears the ultimate burden of proof, See Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. Rule 56, however, does not require “that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim.” Id.

Once the moving party meets its burden of showing the district court that no genuine issues of material fact exist, the burden then shifts to the non-moving party “to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Disagreement between the parties is not significant unless the disagreement presents a “genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In responding to a motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers- to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)) (emphasis added); see also Advisory Committee Note to 1963 Amendment of Fed.R.Civ.P. 56(e) (“The very mission of summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”). The moving party need not present evidence in a form admissible at trial; “however, he may not merely rest on [the] pleadings.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. If the evidence is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).

In reviewing the evidence submitted, the court must “view the evidence presented through the prism of the substantive evi-dentiary burden,” to determine whether the nonmoving party presented sufficient evidence on which a jury could reasonably find for the nonmoving party. Anderson, 477 U.S. at 254, 106 S.Ct. 2505. The court must refrain from weighing the evidence and making credibility determinations, because these decisions fall to the province of the jury. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see Stewart v. Booker T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir.2000). “Even if a district court ‘believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices.’ ” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.2013) (citing Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir.2006)).

Furthermore, all evidence and inferences drawn from the underlying facts must be viewed in the light most favorable to the non-moving party. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). The nonmoving party “need not be given the benefit of every inference but only of every reasonable inference.” Id. The evidence of the non-moving party “is to be believed and all justifiable inferences are to be drawn in [its] favor.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. After both parties have addressed the motion for summary judgment, the court must grant the motion only if no genuine issues of material fact exist and if the moving party -is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56.

C. Analysis

1. Fictitious and Unserved Defendants

First, the court must clarify who White and Williams have sued. In addition to the City, Mayor Bell, Officer Harris, and Officer Smith, White and Williams mention other individuals in their complaints.

a. Williams

Williams sued Fictitious Defendants C, D, E, and F. In paragraph six of her complaint Williams describes Defendant C by a “distinctive and mid arm length tattoo that was visible to [Williams]” and said he “fired his handgun into White’s vehicle at least two times,” “used excessive force,” and interrogated Williams while she remained handcuffed to a gurney. (Case No. 2:13-cv-01006-cv-KOB, Doc. 6, ¶ 6, ¶ 38, ¶41, ¶45, ¶49). Williams describes Defendants D, E, and F as ones who “falsely restrained the personal liberty of [Williams] from November 30, 2012 through December 1, 2012 by handcuffing [Williams] to a hospital bed for over 12 hours while at the same time denying visitation to [Williams’ family].” (Case No. 2:13-cv-01006-cv-KOB, Doc. 6, ¶¶7-9). Williams sued Defendant C under § 1983 and sued Defendants C, D, E, and F under state law causes of action.

“As a general matter, fictitious-party pleading is not permitted in federal court” unless “the plaintiffs description of the defendant is so specific to be at the very worst, surplusage.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir.2010) (internal quotation marks omitted). Sometimes a plaintiff truly sues a fictitious party and other times a plaintiff actually sues a real party under a fictitious name for various reasons, such as when a plaintiff fears using a real name or when a description adequately describes the party. See Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir.1992). Represented parties are given less leeway to utilize fictitious party pleading than pro se plaintiffs. Id. Further, failure to use discovery tools to discover information necessary to substitute a fictitiously named party militates against sufficient identification. See Moulds v. Bullard, 345 Fed.Appx. 387, 390 (11th Cir.2009).

Naming “John . Doe (Unknown Legal Name), Guard, Charlotte Correctional Institute” in a complaint plus a later reference in a letter to “Mr. Mitchell” is insufficient to name a party. See Richardson, 598 F.3d at 738. Further, naming John Does in the complaint and “completely [failing] to describe some of those officers” and giving “general descriptions of others” including “the duty stations to which they were assigned” is insufficient. Moulds, 345 Fed.Appx. at 390. In contrast, providing an incorrect job title that appears to correspond to a particular position in an organization along with a discovery request for the name of the defendant and a description sufficient to allow service of process is sufficient. See Dean, 951 F.2d at 1215-16.

Williams fails to sufficiently describe Defendants C, D, E, and F and the general rule against fictitious party pleading applies. Williams only describes Defendant C with any degree of particularity. However, Williams is represented by counsel and could have used available discovery tools to identify and substitute the appropriate BPD officers, but failed to do so. Thus, Williams claims against Defendants C, D, E, and F fail and they will be dismissed with prejudice from the case.

b. White

White has not sued any parties in addition to the City, Officer Harris, Officer Smith, and Mayor Bell. However, White mentions Officer Pinkney Toonson, Officer Joshua Camp, and Officer Eric Henderson in his complaint. White does not claim that he has “sued” the three officers but does state he “was placed in fear and apprehension of being harmed” by the three officers and that the three officers intentionally handcuffed White to a hospital bed for two days. (Doc. 17, ¶ 76, 83).

The Defendants argue that any claims against Officers Toonson, Camp, and Henderson should be dismissed for failure to join the officers to the lawsuit or personally serve the officers. The court agrees. Because White failed to personally name, sue, or serve these putative defendants, they are not parties to the lawsuit.

2. § 1983 Official Capacity

White and Williams sued the City, May- or Bell and Officers Harris and Smith in their official capacity alleging that the Defendants used or condoned the use of excessive force.

a. The City

White and Williams sued the City directly for Officers Harris and Smith’s alleged use of excessive force. (Doc. 17, 9-16, ¶¶ 48-68). However, as explained below, the City is not liable because the City did not maintain a policy or custom condoning excessive force. In fact, the City has a policy against the use of excessive force.

A municipality is not vicariously liable under § 1988 for the actions of its police officers. See Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998). Instead, “[i]t is only when the execution of the government’s policy or custom ... inflicts the injury that the municipality may be held liable.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (internal quotation marks omitted). Thus, “to impose § 1983 liability on a municipality, a plaintiff must show: (1) that [his or her] constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.2004).

“A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality.” Ludaway v. City of Jacksonville, Fla., 245 Fed.Appx. 949, 951 (11th Cir.2007). A custom is a settled and permanent practice with the force of law. Id. Deliberate indifference to a constitutional right requires more than negligence; rather it requires “proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997).

A “persistent and wide-spread practice” demonstrates a policy or custom with deliberate indifference to the plaintiffs constitutional rights. See Ludaway, 245 Fed.Appx. at 951 (internal citations omitted). Generally, a plaintiff must show multiple similar, past, meritorious complaints against a police force to prove a custom condoning excessive force. See Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir.2005); see Ludaway, 245 Fed.Appx. at 952.

For example, in Mercado, the plaintiff claimed excessive force when police officers shot him in the head with a non-fatal round of ammunition. See 407 F.3d at 1155. The Eleventh Circuit found that the plaintiff could not base his claim of a custom condoning excessive force on other cases filed against the City of Orlando involving allegations of excessive force because those eases were not “substantially similar to the case at hand.” Id. at 1162 (emphasis added). Further, in Ludaway, the plaintiff presented evidence of 170 complaints of excessive force against the Jacksonville Sheriffs Office filed between January 2004 and December 2005. See 245 Fed.Appx. at 950. However, this evidence did not show a custom condoning excessive force because only 10 claims of excessive force were substantiated and the Sheriffs Office either disciplined the officers in those cases or the officers resigned. Id. at 952.

White and Williams do not dispute that the City does not have a policy condoning excessive force or that BPD has polices for

use of force, the firearms review committee, firearms and ammunition, backup unit(s) roles and responsibility, serious injury or death involving police officer, traffic patrol techniques, vehicle pursuit policy, incident reports, detectives, investigations, juvenile arrests, temporary restraining devices, felony arrest time extension request procedures, guarding prisoners at hospitals, police officer’s oath of office, departmental goals and Objectives, duty requirements, and laws and ordinances.

(Doc. 36-12, 2).

Rather, "White and Williams present two basic arguments that a custom of using excessive force exists. First, White and Williams point to the following instances of alleged excessive force by BPD as evidence of a custom of allowing excessive force:

1. A claim of excessive force on March 20, 2011 against BPD for striking a suspect whose hands were raised;

2. Certification of a class complaint against BPD for alleged excessive force in the use of pepper spray against minors;

3. An October 2012 jury verdict against BPD for excessive force in hitting a suspect handcuffed in a police vehicle;

4. The fact that Investigator Steele has investigated eight shootings involving officers in his career;

5. The fact that BPD’s firearms review board met monthly;

6. The fact that Sergeant Snider has investigated five or six shootings involving officers in her career;

7. Officer Harris’ lack of knowledge about the excessive force policy; and

8. Chief Roper’s statement that the excessive force training regimen has not changed since 2006.

White and Williams’ evidence is insufficient to show a custom condoning excessive force. A plaintiff must show a custom condoning excessive force through multiple similar, past, meritorious complaints of excessive force. See Mercado, 407 F.3d at 1162; see Ludaway, 245 Fed.Appx. at 952. The other incidents proffered by White and Williams are too different to create a custom.

The March 20, 2011 incident; the October, 2012 jury verdict; and the pepper spray class certification do not involve claims of lethal force involving firearms. Additionally, the fact that Investigator Steele and Sergeant Snider have periodically investigated police shootings over their careers does not show a custom condoning excessive force. White and Williams present no evidence about the results of those investigations or even over how long a period of time those investigations occurred. Without more information or context, the court cannot infer a custom condoning excessive force.

Finally, the fact that the firearms review board meets monthly, the statement from Chief Roper about the excessive force training, and Officer Harris’ “lack of knowledge” about the excessive force policy are, if anything, evidence of a custom or policy against the use of excessive force. The frequency with which the firearms review board met is evidence of the City’s attempt to control the use of excessive force. Similarly, Chief Roper’s statement regarding the use of force training shows that BPD actually provided the training to BPD officers. Further, Officer Harris’ “lack of knowledge” about the excessive force training is based on Officer Harris’ testimony that he could not remember exact details about the excessive force training that BPD actually provided to Officer Harris. White and Williams have simply not shown the multiple similar, past, meritorious complaints of excessive force necessary to show a custom condoning excessive force in the use of firearms.

Alternatively, White and Williams argue that the City condones excessive force based on evidence regarding Officers Harris and Smith’s allegedly deficient training. The Supreme Court has hypothesized that “the need to train officers in the constitutional limitations on the use of deadly force ... can be said to be ‘so obvious’ that the failure to do so could properly be characterized as ‘deliberate indifference’ to constitutional rights.” City of Canton, 489 U.S. at 391, n. 10, 109 S.Ct. 1197 (emphasis added). Here, the City’s alleged failure to adequately train Officers Harris and Smith in the proper use of deadly force could, hypothetically, •be evidence of a custom condoning excessive force even without multiple similar, past, meritorious incidents.

However, the City has not abdicated its responsibility to train Officers Harris and Smith. Rather, the City has multiple policies related to the use of force. (Doc. 36-12, 2). Officers Harris and Smith have attended continuing education classes throughout their career on similar topics.

Further, Officer Smith’s reprimand for failure to properly certify his weapon is irrelevant. Officer Smith certified his .380 in 2011. Officer Smith failed to certify his .380 in 2012 and instead certified a different weapon. However, even if the City knew that Officer Smith’s failure to certify his weapon would cause him to engage in excessive force, that knowledge is insufficient to show a custom tolerating excessive force. BPD punished Officer Smith for violating its policy against the use of excessive force when, after the investigation into the shooting, it issued two letters of reprimand to Officer Smith for failure to properly certify his weapon. A plaintiff “must show that the training program itself is deficient, and not just that a particular officer was inadequately trained.” See City of Canton, 489 U.S. at 390-91, 109 S.Ct. 1197.

In summary, White and Williams have failed to present evidence that the City had a policy or custom that allowed or condoned excessive force that constituted deliberate indifference to White and Williams’ constitutional rights. Thus, White and Williams’ § 1983 official capacity claims against the City fail.

b. Mayor Bell and Officers Harris and Smith

White and Williams also sued Mayor Bell and Officers Harris and Smith in their official capacities based on Officers Harris and Smith’s alleged use pf excessive force. (Doc. 17, 9-16, ¶¶ 48-68). However, White and Williams’ claims against Mayor Bell and Officers Harris and Smith in their official capacities fail under the facts of this case.

“A § 1983 action against a governmental official in his official capacity is deemed a suit against the entity that he represents” and is “essentially a complaint against the City.” Ludaway, 245 Fed.Appx. at 951 (emphasis in origina