Reply Brief — Anita Arrington-Bey, Administratrix of the Estate of Omar K. Arrington-Bey, Petitioner v. City of Bedford Heights, Ohio, et al.

No. 17-543

IN THE

Supreme Court of the United States

————

ANITA ARRINGTON-BEY, Administratrix

of the Estate of Omar K. Arrington-Bey,

Petitioner,

v.

CITY OF BEDFORD HEIGHTS, OHIO, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

————

REPLY BRIEF OF PETITIONER

————

DAVID M. SHAPIRO

RODERICK AND SOLANGE

MACARTHUR JUSTICE

CENTER

PRITZKER NORTHWESTERN

SCHOOL OF LAW

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0711

TERRY H. GILBERT

Counsel of Record

JACQUELINE C. GREENE

FRIEDMAN & GILBERT

55 Public Square

Suite 1055

Cleveland, OH 44113-1901

(216) 241-1430

tgilbert@f-glaw.com

Counsel for Petitioner

December 26, 2017

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

I. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER

AN

INDIVIDUAL

DEFENDANT’S

QUALIFIED IMMUNITY AUTOMATICALLY

DEFEATS

MUNICIPAL

LIABILITY ................................................

1

A. The Circuit Split Regarding the Interaction Between Qualified Immunity

and Municipal Liability Based on

Deliberate Indifference Is No Illusion ..

1

B. This Court’s Decision in Brown Is Not

Relevant to the Interaction Between

Qualified Immunity and Municipal

Liability................................................

6

C. The Argument that an Individual’s

Qualified Immunity Automatically

Defeats Monell Liability in Deliberate

Indifference Cases Is Illogical and

Inconsistent with this Court’s

Precedent .............................................

9

II. THE COURT SHOULD GRANT CERTIORARI ON THE SECOND QUESITON

PRESENTED – WHETHER THE

POLICE AND JAIL OFFICERS ARE

ENTITLED TO QUALIFIED IMMUNITY

11

CONCLUSION ....................................................

12

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Barber v. City of Salem,

953 F.2d 232 (6th Cir. 1992) .....................

5, 6

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

520 U.S. 397 (1997) ................................... 6, 7, 8

Brosseau v. Haugen,

543 U.S. 194 (2004) ...................................

11

City of Canton v. Harris,

489 U.S. 378 (1989) ..................................passim

Fagan v. City of Vineland,

22 F.3d 1283 (3rd Cir. 1994).....................

4

Fairley v. Luman,

281 F.3d 913 (9th Cir. 2002) .....................

3

Gray v. City of Detroit,

399 F.3d 612 (6th Cir. 2005) .....................

5, 6

Hope v. Pelzer,

536 U.S. 730 (2002) ...................................

12

Kirkpatrick v. Cnty. of Washoe,

843 F.3d 784 (9th Cir. 2016) .....................

3, 4

Medina v. City and Cnty. of Denver,

960 F.2d 1493 (1992) ................................ 1, 2, 3

Modd v. Cnty. of Ottawa,

No. 1:10–CV–337, 2012 WL 5398797

(W.D. Mich. Aug. 24, 2012) .......................

6

Monell v. New York City Dep’t of

Soc. Servs.,

436 U.S. 658 (1978) ...................................

7, 8

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Mullenix v. Luna,

136 S. Ct. 305 (2015) .................................

11

Owen v. City of Independence,

445 U.S. 622 (1980) ...................................

8

Scott v. Clay Cnty.,

205 F.3d 867 (6th Cir. 2000) .....................

5, 6

Terry v. Ohio,

392 U.S. 1 (1968) ....................................... 9, 10

Watson v. City of Kansas City,

857 F.2d 690 (10th Cir. 1988). ..................

2

White v. Pauly,

137 S. Ct. 548 (2017) .................................

11

CONSTITUTION

U.S. Const. amend. IV ..................................

3, 4

STATUTES

42 U.S.C. § 1983 ...........................................

3, 5

REPLY BRIEF OF PETITIONER

The circuit split presented by this case is real and

significant – Petitioner’s municipal liability claim

would have gone forward in the Ninth and Tenth

Circuits regardless of individual qualified immunity

but failed in the Second and Eighth Circuit. The Sixth

Circuit, meanwhile, has taken opposite sides on the

same question in different cases. This Court should

grant certiorari to resolve this division of federal

appellate authority.

I. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER AN

INDIVIDUAL DEFENDANT’S QUALIFIED

IMMUNITY AUTOMATICALLY DEFEATS

MUNICIPAL LIABILITY.

A. The Circuit Split Regarding the Interaction Between Qualified Immunity

and Municipal Liability Based on Deliberate Indifference Is No Illusion.

Respondents contend that the split among the

circuits on whether the qualified immunity of individual officers automatically defeats municipal liability

in a deliberate indifference case is “illusory.” Br. 11.

On the contrary, this case would have come out

differently in the Ninth and Tenth Circuits, and the

Sixth Circuit is divided against itself.

Tenth Circuit: Contrary to respondents’ argument,

the Tenth Circuit holds that the qualified immunity of

individual officers does not necessarily defeat municipal liability in a failure-to-train case. In its discussion

of the plaintiff’s failure-to-train claim, the court stated

in Medina v. City and Cnty. of Denver:

“[T]here is no inherent inconsistency in allowing a suit alleging an unconstitutional policy

2

or custom to proceed against the city when

the individuals charged with executing the

challenged policy . . . have been relieved from

individual liability. While it would be

improper to allow a suit to proceed against

the city if it was determined that the officers’

action did not amount to a constitutional

violation, there is nothing anomalous about

allowing such a suit to proceed when immunity shields the individual defendants. The

availability of qualified immunity does not

depend on whether a constitutional violation

has occurred. While a government official

who violates the constitution will be protected

if his or her actions were reasonable in light

of clearly established law and the information

the official possessed when he or she acted,

municipalities enjoy no such shield.”

960 F.2d 1493, 1499-500 (1992) (quoting Watson v.

City of Kansas City, 857 F.2d 690, 697 (10th Cir. 1988)).

This holding is in direct conflict with the decision

below, which holds that a plaintiff suing a municipality on a failure-to-train claim “must show that the

allegedly violated right was clearly established.” Pet.

App. 14.

After the Tenth Circuit in Medina reached the holding that an individual’s qualified immunity does not

automatically defeat municipal liability for failure to

train, the court went on to hold that the plaintiff’s

evidence did not establish that the city was deliberately indifferent in its training. Medina, 900 F.2d at

1500. Thus, respondents focus on this latter holding,

Br. 17-18, but the only reason the Tenth Circuit went

on to consider whether the plaintiff presented sufficient evidence of deliberate indifference is that it first

3

rejected the very rule that the Sixth Circuit applied

here – that the qualified immunity of the individual

officers automatically defeats municipal liability in

failure-to-train cases. Medina, 900 F.2d at 1499-1500;

Pet. App. 14. The rule applied below and the Tenth

Circuit’s holding are directly in conflict.

Ninth Circuit: In Fairley v. Luman, the Ninth

Circuit stated: “If a plaintiff establishes he suffered a

constitutional injury by the City, the fact that individual officers are exonerated is immaterial to [municipal] liability under § 1983.” 281 F.3d 913, 917 (9th Cir.

2002). The court explicitly stated that “[t]his is true

[when] the officers are exonerated on the basis of

qualified immunity.” Id. at 917 n.4.

Respondents correctly point out that Fairely itself

does not involve a deliberate indifference or failure-totrain theory of municipal liability. Br. 16-17. Nevertheless, the Ninth Circuit applies the same rule

in cases that do involve municipal liability predicated

on deliberate indifference and failure to train. In

Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 792 (9th

Cir. 2016) (en banc), the Ninth Circuit held that social

workers violated a child’s Fourth Amendment rights

by removing her from a parent in the absence of

imminent danger to the child. Despite the constitutional violation, the en banc court held that the social

workers were entitled to qualified immunity. Id. at

793.

But the qualified immunity of the individual

defendants did not absolve the municipality of liability

for its deliberate indifference in failing to train the

social workers that they could not remove children

when no imminent danger exists. Id. at 793-97.

4

After concluding that “the social workers in this case

are entitled to qualified immunity,” the court continued, “[o]ur inquiry, however, is not over. Summary

judgment on [the child’s] Fourth Amendment claim

against Washoe County is still inappropriate if we can

trace the social workers’ unconstitutional removal to

a systemic failure to train DSS officers to obtain

a warrant before seizing a child to investigate abuse

or neglect.” Id. at 793. After reviewing the evidence of

inadequate training, id. at 794-96, the court concluded: “Given the work performed by [county] social

workers, the need for [the county] to train its employees on the constitutional limitations of separating

parents and children is ‘so obvious’ that its failure

to do so is ‘properly . . . characterized as “deliberate

indifference” to [the] constitutional rights’ of Washoe

County families.” Id. at 796-97 (quoting City of Canton

v. Harris, 489 U.S. 378, 390 n.10). Thus, the court

concluded that Washoe County was not entitled to

summary judgment on the failure-to-train claim, even

though qualified immunity shielded all of the individual defendants from liability. Id. at 796-97.

In this case, the panel held that the qualified

immunity of individual defendants automatically

defeats municipal liability in a deliberate indifference

case. Pet. App. 11-14. If the en banc Ninth Circuit

followed that rule in Kirkpatrick, the result would

have been different. Thus, the decision below is

directly contrary to Ninth Circuit law.1

1

In the Third Circuit, we concede that subsequent cases have

narrowly cabined the reach of Fagan v. City of Vineland, 22 F.3d

1283, 1292 (3rd Cir. 1994), which holds that a municipality

may be liable even where no individual municipal defendants

committed a constitutional violation. See Br. 19-20.

5

Sixth Circuit: In Gray v. City of Detroit, 399 F.3d

612, 617 (6th Cir. 2005), a case in which the plaintiff’s

theory of municipal liability was predicated on deliberate indifference and failure to train, the Sixth Circuit

stated: “When an officer violates a plaintiff’s rights

that are not ‘clearly established,’ but a city’s policy was

the ‘moving force’ behind the constitutional violation,

the municipality may be liable even though the

individual officer is immune.”

Similarly, the Sixth Circuit stated in Scott v. Clay

Cnty., which also involved a failure-to-train theory

of municipal liability: “[Q]ualified immunity will not

automatically excuse a municipality or county from

constitutional liability, even where the municipal or

county actors were personally absolved by qualified

immunity, if those agents in fact had invaded the

plaintiff’s constitutional rights.” 205 F.3d 867, 879

(6th Cir. 2000) (citation omitted).

In a third failure-to-train case, the Sixth Circuit

stated:

As plaintiff correctly argues, a municipality

is not entitled to qualified immunity. While

officials may not be liable under section 1983

because their actions (or failure to act) were

not constitutional violations according to

clearly established law at the time the actions

took place, a municipality may nevertheless

be liable if the actions complained of rise to

the level of constitutional violations in light of

present law.

Barber v. City of Salem, 953 F.2d 232, 237 (6th Cir.

1992) (citations omitted).

The same court that decided Gray, Scott, and Barber

held in this case – without even mentioning its trilogy

6

of prior cases to the contrary – that “[t]he violated

right in a deliberate-indifference case . . . must be

clearly established because a municipality cannot

deliberately shirk a constitutional duty unless that

duty is clear.” Pet. App. 12. The Sixth Circuit itself is

split on the same question that has divided the other

circuits.

In addition to stating that a municipality may be

liable where all of the individual defendants enjoy

qualified immunity, Gray also “[a]ssum[ed] for the

sake of argument” that a municipality may be liable

even “[i]f no constitutional violation by the individual

defendants is established.” Gray, 399 F.3d at 617.

Respondents point out that a district court criticized

(in an unpublished case) this latter, more radical

possibility left open in Gray. Br. 18 (citing Modd v.

Cnty. of Ottawa, No. 1:10–CV–337, 2012 WL 5398797,

at *19 (W.D. Mich. Aug. 24, 2012)). But that is beside

the point. Gray, Scott, and Barber all state that a

municipality may be liable for deliberate indifference

and failure to train even if the individual defendants

enjoy qualified immunity. A district’s court comments

on a separate question – whether Gray leaves open the

possibility of municipal liability where no individual

has violated the Constitution – is not relevant here.

B. This Court’s Decision in Brown Is Not

Relevant to the Interaction Between

Qualified Immunity and Municipal

Liability.

Respondents argue that Bd. of Comm’rs of Bryan

Cnty. v. Brown, 520 U.S. 397 (1997) provides the solution to the circuit split and establishes that individual

officers’ qualified immunity automatically defeats

municipal liability in a failure-to-train case. Br. 1315. Not so. Brown could hardly have clarified the

7

relationship between qualified immunity and failure

to train because Brown involved neither qualified

immunity nor failure to train.

The phrases “qualified immunity” and “clearly

established” do not appear in Brown. In fact, Brown

repeatedly states that municipal liability requires

deliberate indifference to an obvious risk of a violation

of law, not an obvious risk of a violation of clearly

established law. Brown omits any reference to violations of clearly established law for a simple reason –

violations of clearly established law are not part of a

claim against a municipality for deliberate indifference. See Brown, 520 U.S. at 400 (stating that municipal liability requires that “deliberate action attributable to the municipality itself is the ‘moving force’

behind the plaintiff’s deprivation of federal rights” –

not the plaintiff’s deprivation of clearly established

federal rights); id. at 404 (stating that a plaintiff

“must demonstrate a direct causal link between the

municipal action and the deprivation of federal rights” –

not the deprivation of clearly established federal

rights); id. at 411 (stating that “[a] plaintiff must

demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a

particular constitutional or statutory right will follow

the decision” – not that a violation of a particular and

clearly established constitutional or statutory right

will follow the decision).

Moreover, Brown addresses a claim based on deliberate indifference in a municipality’s hiring – not the

subject matter of both City of Canton and this case,

which is deliberate indifference in a municipality’s

training. Brown involved a sheriff’s deputy who was

hired even though he had a misdemeanor record.

Brown, 520 U.S. at 414. This Court expressed concern

8

about extending Monell liability to a single decision to

hire one individual. Id. at 410. The Court drew a sharp

line between cases about an isolated hiring decision

and cases (like City of Canton and this case) that

involve a failure to train municipal officers:

In attempting to import the reasoning of

Canton into the hiring context, respondent

ignores the fact that predicting the consequence of a single hiring decision, even one

based on an inadequate assessment of a

record, is far more difficult than predicting

what might flow from the failure to train a

single law enforcement officer as to a specific

skill necessary to the discharge of his duties.

Id. The Court then explained that the risks caused by

deficiencies in hiring are very different than the risks

caused by deficiencies in training: “Unlike the risk

from a particular glaring omission in a training

regimen, the risk from a single instance of inadequate

screening of an applicant’s background is not ‘obvious’

in the abstract.” Id. In short, deliberate indifference

in hiring is different from deliberate indifference in

training. If the respondents in Brown went astray “[i]n

attempting to import the reasoning of Canton into the

hiring context,” id., then the respondents here made

the same mistake, only in reverse – attempting to

import the reasoning of the hiring context into Canton.

At the end of the day, whatever relevance Brown has

to municipal failure-to-train claims, it undermines

neither Owen’s holding that qualified immunity is

no defense to a Monell claim, see Owen v. City of

Independence, 445 U.S. 622, 638 (1980), nor City of

Canton’s holding that failure-to-train claims against

municipalities are a species of Monell claims, see City

9

of Canton, 489 U.S. at 388. The clear implication of

Owen and City of Canton is that qualified immunity

is not a municipal defense against a failure-to-train

claim.

C. The Argument that an Individual’s Qualified Immunity Automatically Defeats

Monell Liability in Deliberate Indifference Cases Is Illogical and Inconsistent

with this Court’s Precedent.

Like the decision below, the Brief in Opposition

conflates two questions: (1) whether a municipal

practice ignores an obvious risk of causing constitutional violations, and (2) whether the violation that

the municipal practice happens to cause in a particular case transgresses clearly established law. Br. 1314.

These are separate issues. Consider, for example,

a city police force that does not train its officers that

they need reasonable suspicion to conduct Terry stops.

This constitutes deliberate indifference under City of

Canton because “the need to train officers” in this area

is “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 390 n.10.

In this example, the failure to provide any training

on Terry stops will obviously lead to constitutional

violations. In some of the illegal stops that will occur,

the officers will enjoy qualified immunity because – by

sheer luck – the objective circumstances of a given stop

are close enough to reasonable suspicion for qualified

immunity purposes. But the happenstance of their

10

qualified immunity does not affect the three things

that matter for the municipality’s City of Canton

liability: (1) the municipality’s failure to train created

an obvious risk that constitutional violations would

occur, (2) a constitutional violation did occur when an

officer performed a Terry stop without reasonable

suspicion, and (3) the lack of training was the moving

force behind the constitutional violation. As City

of Canton states, municipal liability exists where “a

municipality’s failure to train its employees in a

relevant respect evidences a ‘deliberate indifference’ to

the rights of its inhabitants” and the lack of training

is the “the ‘moving force [behind] the constitutional

violation.’” 489 U.S. at 389. That is the entire equation, and qualified immunity is not part of it.

Returning to the facts of this case, Arrington-Bey’s

legal theory is no different than the theory in the Terry

stop example above. First, it is obvious that if jail staff

have no mental health training, deprivations of care

that rise to the level of constitutional violations

will occur. Second, a constitutional violation in fact

occurred – the district court found a genuine issue as

to whether such a violation occurred, Pet. App. 50-65,

and the Sixth Circuit did not disturb that finding, Pet.

App. 7. Third, the constitutional violation – grossly

deficient lack of mental health care – would not have

occurred if staff had been properly trained; therefore,

lack of training was the “moving force,” City of Canton,

489 U.S. at 389, behind the violation. That is the

beginning and the end of City of Canton liability,

regardless of whether the individual officers are

entitled to qualified immunity.

11

II. THE COURT SHOULD GRANT CERTIORARI ON THE SECOND QUESITON

PRESENTED – WHETHER THE POLICE

AND JAIL OFFICERS ARE ENTITLED TO

QUALIFIED IMMUNITY.

It should be obvious to anyone that refusing mental

health evaluation and treatment to a detainee who is

ranting, raving, cursing, talking nonsense, eating with

his hands and feet, and spilling food all over himself

violates the law. Defendants are not entitled to

qualified immunity in “an obvious case.” Brosseau v.

Haugen, 543 U.S. 194, 199 (2004); White v. Pauly, 137

S. Ct. 548, 552 (2017). The facts of this case make the

constitutional violation obvious.

Moreover, it is clearly established that: (1) jail

officers are guilty of deliberate indifference when they

delay or deny outright a prisoners’ access to care for a

serious medical need; (2) some medical needs are so

serious that delays measured in hours rather than

days constitute deliberate indifference; and (3) psychological disorders may constitute serious medical needs.

See Pet. 23-25. These rules are not bare legal

standards – taken together, they clearly establish that

the respondents violated the Constitution by refusing

all treatment to a floridly psychotic detainee.

The crux of respondents’ qualified immunity argument is that the Sixth Circuit correctly held that

“‘plaintiff must identify a case with a similar fact

pattern.’” Br. 21 (quoting Pet. App. 7-8). This Court

has said the opposite time and time again, including

in White v. Pauly: “This Court’s case law do[es] not

require a case directly on point for a right to be clearly

established.” White v. Pauly, 137 S.Ct. 548, 551 (2017)

(per curiam) (quotation omitted). See also Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (“We do not require a

12

case directly on point, but existing precedent must

have placed the statutory or constitutional question

beyond debate.” (quotation omitted)); Hope v. Pelzer,

536 U.S. 730, 741 (2002) (stating that a “fundamentally similar” or “materially similar” previous case is

not required).

CONCLUSION

For the foregoing reasons, the Court should grant

the petition.

Respectfully submitted,

DAVID M. SHAPIRO

RODERICK AND SOLANGE

MACARTHUR JUSTICE

CENTER

PRITZKER NORTHWESTERN

SCHOOL OF LAW

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0711

TERRY H. GILBERT

Counsel of Record

JACQUELINE C. GREENE

FRIEDMAN & GILBERT

55 Public Square

Suite 1055

Cleveland, OH 44113-1901

(216) 241-1430

tgilbert@f-glaw.com

Counsel for Petitioner

December 26, 2017