linked to the policy or custom of the City. The naked allegation that the City failed adequately to train, promote or supervise Ware is insufficient as a matter of law, since there is no foundation for the required showing that the City authorized, approved or was indifferent to Ware's tortious action. For this reason, the plaintiff's theory of direct municipal liability under § 1983 must fail.
The second basis for municipal liability offered by the plaintiff is that there exists an official policy of the City of Pittsburgh police department to keep white citizens out of the Hill District after dark and that Ware was executing this policy when the fatal shooting occurred.
The City admits that it is City policy to keep white people from frequenting the predominantly black, Hill District area after dark.
This is for the safety of the white citizens.
However, the policy is not directed toward whites who simply are driving through the area. Instead, the purpose is to escort safely out of the area those individuals who may be walking, loitering or circling by automobile.
Although City officials admit that an individual who refused to be escorted out might be subject to arrest
, the practice, to the extent that it exists, is to encourage white citizens to move on of their own accord and for their own well-being. There was no city policy of shooting those who refused to comply and there certainly was no policy to shoot white citizens merely because they were in the area.
While the misexecution of a constitutional municipal policy by an employee may be considered as a basis for the individual liability of the employee, it is not the basis for municipal liability under § 1983. Dominguez v. Beame, 603 F.2d 337, 342 (2d Cir. 1979), cert. denied, 446 U.S. 917, 100 S. Ct. 1850, 64 L. Ed. 2d 271 (1980). Rather, the plaintiff must show that the policy or custom itself was unconstitutional and that the execution of this unconstitutional official policy or custom caused the harm. Monell, 436 U.S. at 691, 98 S. Ct. at 2036; Rizzo, 423 U.S. at 370-71, 96 S. Ct. at 603-04.
We find as a matter of law based on the undisputed acts above that there is no nexus between the practice of keeping white citizens out of the Hill District and the shooting of the decedent.
The decedent, Walsh, and his companions were not the intended targets of the City's practice. They were not walking or loitering in the area. There has been no suggestion that they were circling the area. It appears, simply, that they were driving through the area. As such, they were clearly outside of the scope of the City's policy.
Additionally, the purpose of the policy was to protect white citizens. The practice of escorting them out of the area was to insure their safety. The defendant Ware took no action to safeguard the decedent and his companions. There was no motive to protect them. Ware was not executing or even misexecuting a City policy, on the contrary, he was purposefully engaging in tortious conduct of his own design for his own purposes whatever they may have been.
Because the link between the official policy cited by the plaintiff and the harm occasioned is so attenuated, we find that this case falls squarely within the rule of Monell. Since the death of Walsh reasonably cannot be said to flow from the City's policy of keeping white citizens out of the Hill District, the only basis for imputing to the City responsibility for Ware's misconduct is respondeat superior. Monell expressly prohibits municipal liability under § 1983 on that theory of liability.
B. The Motion of Ware
In order to establish Ware's liability under § 1983, the plaintiff must show that he has been deprived of a constitutional right and that such deprivation was caused by Ware acting under color of law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970); Basista v. Weir, 340 F.2d 74, 79 (3rd Cir. 1965).
In the present case, the first requirement is clearly met. The shooting of the decedent by Ware constituted a denial without due process of the right to life as explicitly guaranteed by the Fourteenth Amendment. See Popow, 476 F. Supp. at 1240.
The question of whether Ware committed the fatal shooting while acting under color of law is not so easily resolved. It is clear that it is not simply the clothing or duty status of a police officer that determines whether or not he acted under color of state law. Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975), cert. dismissed, 429 U.S. 118, 97 S. Ct. 514, 50 L. Ed. 2d 269 (1976); Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D.Pa.1968). Instead, it is necessary to scrutinize the nature of the act performed. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled on other grounds, Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). If Ware was enabled to do what he did because of the authority of his office, even if what he did constituted an abuse of that authority, either because of the excessiveness of his conduct or because the act was not actually, although apparently authorized, the act would be under color of law. United States v. Classic, 313 U.S. 299, 325-26, 61 S. Ct. 1031, 1042-43, 85 L. Ed. 1368 (1941), Johnson, 284 F. Supp. at 937. On the other hand, not all acts by a state official are under color of law. See Parrett, -- - U.S. at -- n. 10, 101 S. Ct. at 1921 n. 10, 68 L. Ed. 2d at 439 n. 10 (1981) (Powell, J. concurring). The conduct of a police officer, however outrageous, is not actionable under § 1983 merely because he is a police officer. Paul v. Davis, 424 U.S. 693, 717, 96 S. Ct. 1155, 1168, 47 L. Ed. 2d 405 (1976). (Brennan, J. dissenting). Acts of police officers in the ambit of their personal, private pursuits fall outside of 42 U.S.C. § 1983. Screws v. United States, 325 U.S. 91, 111, 65 S. Ct. 1031, 1040, 89 L. Ed. 1495 (1945).
Because of the nature of the inquiry necessary to a determination of the question of whether or not defendant Ware was acting under color of law when he allegedly shot decedent Walsh, we find that there remain genuine issues of material fact. These unanswered questions of fact can only be resolved by the factfinder at trial. Therefore, Ware's motion for summary judgment must be denied.