Opposition Brief — Angela Germaine Spencer, By and Through Next Friend and Mother of A. S., a Minor, Petitioner v. Harrison County, Texas

No. 23-972

In the

Supreme Court of the United States

__________________

ANGELA GERMAINE SPENCER, BY AND THROUGH NEXT

FRIEND AND MOTHER OF A. S., A MINOR,

Petitioner,

v.

HARRISON COUNTY, TEXAS,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

__________________

BRIEF IN OPPOSITION

__________________

Robert S. Davis

Counsel of Record

Flowers Davis, P.L.L.C.

1021 ESE Loop 323, Suite 200

Tyler, Texas 75701

(903) 534-8063

(903) 534-1650 Facsimile

rsd@flowersdavis.com

Attorneys for Respondent

Harrison County, Texas

i

TABLE OF CONTENTS

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

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 9

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . 10

I. Issue One: Whether Petitioner has shown that

Harrison County violated Petitioner’s Fifth and

Fourteenth Amendment rights because

Petitioner’s feet remained shackled during the

short pre-detention hearing. . . . . . . . . . . . . . . . 10

A. Specific Cases Cited by Petitioner . . . . . . . . 16

1. Parties Should Not be Unnecessarily

Restrained in Front of a Jury . . . . . . . . . 16

B. Not Every Court Proceeding Requires an

Individual Assessment Before Restraining a

Juvenile in Court . . . . . . . . . . . . . . . . . . . . . . 25

C. Blanket Shackling Applies to Pre-trial

Proceedings in Washington State . . . . . . . . . 27

II. Issue Two: Whether Harrison County had a

policy, custom or practice of violating the

constitutional rights of Juvenile Defenders. . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ii

TABLE OF AUTHORITIES

CASES

Benavides v. County of Wilson,

955 F.2d 968 (5th Cir. 1992). . . . . . . . . . . . . . . . 30

Bennett v. City of Slidell,

728 F.2d 762 (5th. Cir. 1984), cert. denied, 472

U.S. 1016, 105 S. Ct. 3476 (1985). . . . . . . . . . . . 28

Board of County Commissioners of Bryan County v.

Brown,

520 U.S. 397, 117 S. Ct. 1382 (1997) . . . . . . . . . 30

In re C.B.,

386 Ill. App. 3d 735, 898 N.E.2d 252 (2008), aff’d

sub nom. In re Jonathon C.B., 2011 IL 107750,

958 N.E.2d 227, as modified on denial of reh’g

(Nov. 28, 2011) . . . . . . . . . . . . . . . . . . . . . . . 16, 17

City of Canton v. Harris,

489 U.S. 378, 109 S. Ct. 1197 (1989) . . . . . . . . . 30

Deck v. Missouri,

544 U.S. 622 (2005). . . . . . . . . . . . . . 13, 18, 21, 22

In re: Derwin Staley,

40 Ill.App.3d 528 (1976) . . . . . . . . . . . . . . . . . . . 15

Flores v. Cameron County,

92 F.3d 258 (5th Cir. 1996). . . . . . . . . . . . . . 29, 30

In re Gault,

387 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . . . . . . . 12

Gernstein v. Pugh,

420 U.S. 103 (1975). . . . . . . . . . . . . . . . . . . . 10, 12

iii

Kent v. U.S.,

383 U.S. 541 (1966). . . . . . . . . . . . . . . . . . . . . . . 12

LiButti v. United States,

107 F.3d 110 (2d Cir.1997) . . . . . . . . . . . . . . 24, 25

McKee v. City of Rockwall,

877 F.2d 409 (5th Cir. 1989), cert. denied, 493

U.S. 1023, 107 L. Ed. 2d 746, 110 S. Ct. 727

(1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

McKeiver v. Pennsylvania,

403 U.S. 528 (1971). . . . . . . . . . . . . . . . . . . . 11, 12

Monell v. Dep’t. of Social Sciences,

436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611

(1978). . . . . . . . . . . . . . . . . . . . . . . . . . 9, 28, 30, 32

Moss v. Weaver,

525 F.2d 1258 (5th Cir. 1976). . . . . . . . . 10, 11, 12

New Jersey v. T.L.O.,

469 U.S. 325 (1985). . . . . . . . . . . . . . . . . . . . . . . 12

People v. Best,

19 N.Y.3d 739, 979 N.E.2d 1187 (2012) . . . . . . . 18

People v. Boose,

66 Ill.2d 261, 5 Ill.Dec. 832, 362 N.E.2d 303

(1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Staley,

67 Ill.2d 33 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Strickland,

363 Ill.App.3d 598, 300 Ill.Dec. 297, 843 N.E.2d

897 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iv

Sides v. Cherry,

609 F.3d 576 (3d Cir. 2010) . . . . . . . . . . 18, 19, 20

Snyder v. Trepagnier,

142 F.3d 791 (5th Cir. 1998). . . . . . . . . . . . . . . . 31

In re Staley,

67 Ill.2d 33, 7 Ill.Dec. 85,

364 N.E.2d 72 (1977) . . . . . . . . . . . . . . . . . . 17, 18

State v. Doe,

157 Idaho 43, 333 P.3d 858 (Ct. App. 2014). 25, 26

State v. E.J.Y.,

113 Wash.App. 940 (2002) . . . . . . . . . . . . . . . . . 14

State v. Finch,

137 Wash.2d 792, 975 P.2d 967 (1999) . . . . . . . 27

State v. Jackson,

195 Wash. 2d 841, 467 P.3d 97 (2020) . . . . . 27, 28

State ex rel. Juvenile Department of Multnomah

County v. Millican,

138 Or.App. 142 (1995) . . . . . . . . . . . . . . 14, 26, 27

State v. Moore,

45 Or.App. 837 (1980) . . . . . . . . . . . . . . . . . . . . . 14

Trial of Christopher Layer,

16 How. St. Tr. 94 (K.B. 1722) . . . . . . . . . . . . . . 22

U.S. v. Doe,

801 F.Supp. 1562 (E.D. Tex. 1992). . . . . . . . . . . 12

United States v. Henderson,

915 F.3d 1127 (7th Cir. 2019). . . . . . . . . . . . . . . 21

v

United States v. LaFond,

783 F.3d 1216 (11th Cir. 2015). . . . . . . . . . . . . . 22

United States v. Sanchez-Gomez,

859 F.3d 649 (9th Cir. 2017), vacated and

remanded, 584 U.S. 381, 138 S. Ct. 1532, 200 L.

Ed. 2d 792 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Zuber,

118 F.3d 101 (2d Cir.1997) . . . . . . . . 22, 23, 24, 25

Webster v. Houston,

735 F.2d 838 (5th Cir. 1984). . . . . . . . . . . . . . . . 29

CONSTITUTION

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . 10, 11, 12

U.S. Const. amend. V . . . . . . . . . . . . 10, 11, 13, 14, 21

U.S. Const. amend. XIV . . . . . . . . . . 10, 11, 13, 14, 21

STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . 28, 29, 31

Texas Family Code § 51.03 . . . . . . . . . . . . . . . . . . . . 1

Texas Family Code § 52.01 (a)(1) . . . . . . . . . . . . . . . 1

OTHER AUTHORITIES

4 William Blackstone, Commentaries . . . . . . . . . . . 22

1

STATEMENT OF FACTS

On May 10, 2017, Judge Joe Black found probable

cause existed and issued an Order for Immediate

Custody of A.S. for assaults on a public servant

occurring on April 28, 2017 and May 10, 2017.

ROA.441. This Order held probable cause existed for

the immediate custody of A.S. in the Harrison County

Juvenile Detention Center. ROA.441.

The Motion for Immediate Custody alleged that

A.S.’s assault on a teacher was delinquent conduct for

the purpose of Section 51.03 of the Texas Family Code.

ROA.442-443. The Order of Immediate Custody,

signed by County Court at Law Judge Joe Black, found

that “there are reasonable grounds to take Plaintiff

into custody pursuant to Section 52.01 (a)(1) of the

Texas Family Code.”

ROA.441. The Order of

Immediate custody served as both an arrest warrant

and a commitment ordering the Harrison County

Juvenile Detention Center keep A.S. in its custody

“until duly discharged by this Court.” ROA.441. As

such, the Harrison County Juvenile Detention Center

would have been in violation of a facially valid and

legally enforceable Court Order had it not accepted

A.S. into custody, or had it released A.S. prior to the

Juvenile Court ordering his release, which happened on

May 12, 2017, two days after Petitioner’s admission.

ROA.441, 447.

Pursuant to the Order of Immediate Custody, on

May 10, 2017, A.S. was detained by the Marshall

Independent School District Police Department

2

(“MISDPD”)1 on the charge of Assault on a Public

Servant, and was brought to the Harrison County

Juvenile Detention Center by MISDPD officers

Johnson and Roge at approximately 2:17 p.m.

ROA.444-446.

Before A.S. was accepted into the custody of the

Harrison County Juvenile Detention Center and the

MISDPD officers left, A.S. was searched, in their

presence, with a body pat down by a trained and

certified officer of the Harrison County Juvenile

Detention Center, and a metal-detecting wand was run

over all areas where a weapon or other metal

contraband might have been hidden underneath his

clothing, in compliance with the Center’s policy for

searching each juvenile detained at the facility.

ROA.418, 409, 597.

At no time was a body cavity or strip search

performed on A.S. ROA.418, 409, 482, 597-598. At the

end of the intake process, A.S. was allowed to shower

and directed to a private changing room where he

changed from his school clothes into the standard

Juvenile Detention Center uniform. ROA.420-421. No

Harrison County Juvenile Detention Center staff

observed A.S. shower or change clothes. ROA.420-421.

The intake and orientation process was performed

by trained and certified officers of Harrison County

Juvenile Services, during which A.S. was asked for

basic information, informed of the rules while in

1

MISDPD is not an office or department of Harrison County, is

not under the control of Harrison County and is not funded by

Harrison County.

3

detention, provided information regarding a hotline to

the Texas Juvenile Justice Department if he felt his

rights were violated or if he was abused, and provided

information on how to complete a grievance form if he

felt his rights were violated by the Harrison County

Juvenile Detention Center or its staff. ROA.420-421,

434-435, 437-440. A.S. was also given a medical health

screening, a risk and needs assessment, and an

assessment for mental health. ROA.420-421, 434-435,

437-440.

The assessment for mental health, called the

“MAYSI-2,” showed that A.S. scored a “caution” level

on suicidal ideation. ROA.418-420, 434-435, 438-439,

455-466. His score on suicidal ideation was a 2.

ROA.418-420, 434-435, 438-439, 455-466. The scores on

the MAYSI-2 are from 0 to 5, with 5 being the highest

level. ROA.418-420, 434-435, 438-439, 455-466. With

A.S.’s score of 2, detention facility staff called the crisis

hotline at Community Healthcore (which is the State’s

local mental health authority in that region) at 3:18

p.m. ROA.418-420, 434-435, 438-439, 455-466. The

information on A.S.’s suicidal ideation score was

relayed to the individual, “Anna,” at the crisis hotline.

ROA.418-420, 434-435, 438-439, 455-466. “Anna,” at

the crisis hotline, informed the detention facility staff

that at that time, A.S. did not meet the criteria for a

mental health professional to come to the facility for a

face-to-face mental health assessment. ROA.418-420,

434-435, 438-439, 455-466.

Even though A.S. did not meet Community

Healthcore’s criteria for further mental health

assessment or action, Juvenile Detention Center staff

4

placed A.S. on a “cautionary” status per departmental

policy and in conjunction with Texas Juvenile Justice

Department standards. ROA.419-420, 434-435, 438439. He was placed on observation by certified facility

staff, and he was observed in his housing unit at least

every 10 minutes by certified facility staff. ROA.419420, 434-435, 438-439. This is a more frequent

observation period than normal because he had scored

a level 2 on suicidal ideation on the MAYSI-2 (juveniles

who do not score high, or do not show signs of suicidal

ideation, are observed every 15 minutes while in their

individual housing units). ROA.419-420, 434-435, 438439. This was to make sure A.S. did not attempt to

cause harm to himself. ROA.419-420, 434-435, 438439. He remained on this “cautionary” status for the

entire duration of his detention. ROA.420, 434-435,

438-439.

Following the intake process, A.S. took a shower at

4:37 p.m., changed into a standard detention facility

uniform for juveniles, and all the property on his

person was logged and placed in the secured property

room in a bin to which his name was assigned.

ROA.420. No medications were in his property or

brought to the detention facility for him during his

stay. ROA.420, 517-518.

On the evening of May 10, 2017 at approximately

6:00 p.m., Angela Spencer approached juvenile

probation officer Gala Parker in the juvenile detention

center parking lot while Ms. Parker was walking to her

car to leave for the day. ROA.430-431. During this

conversation, Parker told Angela Spencer that she

needed to bring any medication A.S. was taking to the

5

detention center, and Angela Spencer informed Parker

that A.S. was not on any medication. ROA.431.

Angela Spencer did not bring any medication to the

detention facility or indicate to any detention facility

staff that A.S. was on any medications. ROA.518-519.

In her deposition, when asked why she did not take

A.S.’s medication to the detention center on her visit,

she replied “Honestly, I didn’t trust them medicating

my kid, I just - - I have fears about it because of

everything that was going on with the district, you

know, everything that was happening. So, I just had

trust issues; so, I didn’t want them medicating my kid.”

ROA.518.

A.S. was introduced into the general population

with other juveniles in the pre-adjudication facility,

and assigned an individual cell, specifically “C2.”

“C2” is the second closest room to the control room on

the “C” pod in which pre-adjudication juveniles are

housed. ROA.420-421, 482. The control room is the

central hub of the detention facility which is staffed

100% of the time. ROA.421. The facility staff in the

control room can see real-time security camera feed

from each of the two pods (“B” and “C” pods), as well as

the indoor gym and outdoor recreation yard,

classrooms, and other areas of the facility. ROA.421.

From the control room, the staff member assigned to

control room duty is also able to view down each pod

with his or her own eyes without use of the security

cameras. ROA.421.

During the entirety of A.S.’s stay in detention, there

were 16 other juveniles in the pre-adjudication portion

of the facility with him. ROA.423, 435. A.S. did not

6

receive any “write ups” for incidents, or have any

instances of behavior warranting disciplinary action,

nor was A.S. a victim of abuse by other juveniles or

facility staff with whom he had contact. ROA.423, 435.

By his own account, A.S. had no problems with any of

the detention facility staff or other juveniles during the

entirety of his stay at the juvenile detention center, and

everyone was nice to him the whole time he was there.

ROA.504-508, 510.

A.S. was scheduled for an initial hearing before the

juvenile court on May 12, 2017 at 8:45 a.m. ROA.423.

While at the detention facility, A.S. was prepared for

transport to the courtroom by the probation staff.

ROA.423. Dressed in standard detention clothing, A.S.

was leg-shackled and handcuffed with a “belly belt” for

safety and security reasons. ROA.423-424. This applies

to all juveniles being transported to court or any other

destination from the detention facility and ordered by

the Juvenile Court Judge. ROA.424.

Rather than being taken by probation staff through

the public areas of the courthouse, A.S. and the other

juvenile going to court that morning were taken

through the secure entrance of the Harrison County

Sheriff’s Office in the basement (which requires an

electronic code to be entered) and then up to the first

floor of the courthouse on the non-public elevator

(which requires a key). ROA.424. After stepping into

the waiting room outside the juvenile courtroom, A.S.’s

handcuffs were removed, but his leg shackles

remained, as is ordered for all juveniles who are taken

to juvenile court to see the Juvenile Court Judge.

ROA.424. The leg shackles are left on to prevent a

7

juvenile from escaping custody when transported to

Court from the detention facility. ROA.424.

Once both juveniles and the probation staff entered

into the waiting room, a probation staff member

checked the courtroom to make sure there were no

adult inmates in the courtroom. ROA.424. Once it was

determined there were no adult inmates present, A.S.

and the other juvenile were taken into the courtroom

and seated in the jury box. ROA.424-425.

A.S.’s mother signed a form stating that she did not

want an attorney appointed to A.S. for his initial

detention hearing. ROA.425, 500. When court was

about to begin on May 12, 2017, no retained attorney

was present to represent A.S. for his scheduled

detention hearing. ROA.425. The previous day,

however, on May 11, 2017, the Juvenile Court Judge

had appointed Brendon Roth, attorney at law, to

represent A.S. for his detention hearing on May 12,

2017, in case A.S.’s mother had not retained an

attorney to represent him that day in court. ROA.425.

Brendan Roth was present for the detention hearing on

May 12, 2017, and represented A.S. in court. ROA.425.

A.S. and his mother met with Mr. Roth in a private

room to discuss his case prior to the hearing. ROA.523.

At the close of A.S.’s detention hearing, the juvenile

judge ordered A.S.’s release from detention with

conditions. ROA.447-449. It was also ordered that A.S.

receive a psychological evaluation to possibly diagnose

and address any mental health issues or mental

disabilities of which the juvenile court and the

Harrison County Juvenile Services Department should

be aware. ROA.449. Rather than A.S. staying in

8

detention and waiting for the psychological evaluation

to be performed, A.S. was released with the

court-ordered psychological evaluation pending and

with the instruction to comply with his release

conditions. ROA.425,447-449.

A.S.’s entire time detained at the Harrison County

Juvenile Detention Center was 1 day, 19 hours, and 55

minutes. ROA.426. The Harrison County Juvenile

Detention Center serves as a holding facility, and

provides basic care as well as limited rehabilitation

services to juveniles brought in by law enforcement

agencies and probation departments while awaiting a

hearing and/or disposition by a juvenile court or the

district attorney’s office. ROA.426-427.

Harrison County Juvenile Services has an

agreement with the Marshall Independent School

District to provide education to juveniles that are

detained. ROA.427. A.S. was provided educational

services while detained at the Juvenile Detention

Center. ROA.484, 486. Several of Angela Spencer’s

sorority sisters worked at the Harrison County

Juvenile Detention Center. ROA.520. Everyone at the

Detention Center was polite to A.S. ROA.508, 521. As

admitted by Ms. Spencer, the staff members were

“really trying to make sure that he (A.S.) was going to

be okay without his mom,” and they all treated A.S.

well and were nice to him. ROA.521.

9

SUMMARY OF THE ARGUMENT

After a diligent search for cases that address

whether it is unconstitutional to leave a juvenile in

shackles during a probable cause hearing or a

pre-determination hearing before a juvenile court

judge, Respondent has not found any cases holding that

such an event constitutes a constitutional violation.

The adversarial rights of a juvenile defendant in a

proceeding to determine delinquency (similar to the

adversarial rights in the guilt/innocence or liability

phase of a criminal or civil trial), do not exist in the

context of a probable cause hearing or a

pre-determination hearing. There are no cases that

have ever found such a right to exist. Stated as

succinctly as possible, a juvenile does not have a

constitutional right to have leg shackles removed

during a probable cause or pre-determination hearing.

Additionally, the Juvenile Court Judge requires

shackles to remain in place during probable cause or

pre-determination hearings. The County Court at Law

Judge is a state actor, not a County actor. The State

Juvenile Court Judge controls matters that occur in her

court, not the Harrison County Juvenile Board. The

Harrison County Juvenile Board is the policymaker for

juvenile services in Harrison County.

First, in this case, there is no underlying

constitutional violation, and second, there is no

unconstitutional Harrison County policy, custom or

practice that was ever adopted with deliberate

indifference by the Harrison County Juvenile Board.

The requirements for County liability as set forth in

Monell and its progeny do not exist.

10

ARGUMENT AND AUTHORITIES

I. Issue One: Whether Petitioner has shown that

Harrison County violated Petitioner’s Fifth

and Fourteenth Amendment rights because

Petitioner’s feet remained shackled during the

short pre-detention hearing.

The pretrial detention of juveniles2 without a

Fourth Amendment3 determination of probable cause

would violate the Fourth Amendment. Moss v. Weaver,

525 F.2d 1258, 1259-1260 (5th Cir. 1976). As noted in

the Statement of Facts, the Juvenile Court in this case

made a determination of probable cause prior to the

detention of Petitioner. That fact is not disputed. The

“Order of Immediate Custody,” signed by Judge Joe

Black, found that “there are reasonable grounds to

take” A.S. into custody “until duly discharged by this

Court.” After A.S. was taken into custody on May 10,

2017, a “Pre-Determination Hearing” was set for

May 12, 2017 – less than 48 hours later. It was at this

Pre-Determination hearing that leg shackles were left

2

In this instance, the hearing complained of occurred two days

after the Court made the probable cause determination and

involved a pre-detention hearing where the Court would decide

whether to release the juvenile pending a formal “adjudicatory

hearing.”

3

The Fifth Circuit noted that this is a Fourth Amendment

determination as opposed to an application of variable due process

under the Fourteenth Amendment. Moss, 525 F.2d at 1259-1260;

Gerstein v. Pugh, 420 U.S. 103, 125 (1975). The strong principles

embedded in the Bill of Rights are not to be put aside merely

because the pre-determination hearing is not formally viewed as

part of a criminal justice case. Id.

11

on A.S. while he was in front of the Judge. At the close

of this hearing, the juvenile judge ordered A.S.’s release

from custody with conditions.

A juvenile, in a pre-determination hearing is not

entitled to adversarial safeguards under a Fifth or

Fourteenth Amendment due process analysis –

safeguards such as competent sworn testimony with

witnesses subject to cross-examination. Id. at 1260.

The Fourth Amendment itself does not require such

adversary safeguards in a probable cause analysis or a

pre-determination hearing and there is no exacting

insistence on certainty as there is under a reasonable

doubt or even a preponderance standard, and there is

less need for the assurances of reliability that the

adversary system provides. Id. After all, the question

of probable cause has for many years been resolved in

nonadversary proceedings based on hearsay and

written testimony, usually in the context of a

magistrate’s decision on whether or not to issue an

arrest warrant. Id. at 1261. Additionally, requiring

adversary hearings in cases of pretrial detention

hearings would result in pretrial delay and destroy the

distinct advantages that the Supreme Court believes

juvenile tribunals get from their informal nature. Id.

The Fifth Circuit has, for over 40 years, expressed

its concerns of subjecting the juvenile court system to

the traditional delay, the formality, and the clamor of

the adversary system. Id.; McKeiver v. Pennsylvania,

403 U.S. 528, 545 (1971). The Fifth Circuit has also

held that “the probable cause determination is not a

‘critical stage’ in the prosecution that would require

appointed counsel,” or other adversary safeguards.

12

Moss, 525 F.2d at 1261; Gernstein v. Pugh, 420 U.S.

103, 122. The Fifth Circuit case law is very clear that

there is no guaranteed right to hear and cross-examine

witnesses at a juvenile pre-determination hearing.

Moss, 525 F.2d at 1261. The two types of juvenile court

proceedings that are at “a critical stage” are: 1) a

juvenile court proceeding where delinquency is

determined and commitment to an institution may

result; and 2) a juvenile court proceeding on the issue

of whether the juvenile court should waive jurisdiction

and transfer the case to “adult” court. Moss, 525 F.2d

at 1261; In re Gault, 387 U.S. 1, 8 (1967); Kent v. U.S.,

383 U.S. 541, 560-63 (1966). In the two types of

juvenile cases that are at a “critical stage,” the

exclusionary rule applies,4 search and seizure

protections of the Fourth Amendment apply,5 right to

appropriate notice, right to counsel, right to

confrontation, right to cross-examination, and the

privilege against self incrimination all apply.6 Aside

from the two types of juvenile proceedings that have

been determined to be at a “critical stage,” no

adjudicative or adversary safeguards have ever been

required.

Being restrained by handcuffs or shackles briefly

during a pre-determination hearing, a proceeding that

is clearly not considered a “critical stage” in the

juvenile process, has never been found by any Court to

4

U.S. v. Doe, 801 F.Supp. 1562, 1567 (E.D. Tex. 1992).

5

New Jersey v. T.L.O., 469 U.S. 325, 333 (1985).

6

McKeiver v. Pennsylvania, 403 U.S. 528, 533-535 (1971).

13

constitute a constitutional violation, nor has it ever

been determined that a juvenile has a right not to be

restrained during a pre-determination or probable

cause hearing. This case does not present any unusual

circumstance that would justify the creation of a new

constitutional right in this regard.

After a diligent search for cases that address

whether it is unconstitutional to leave a juvenile in

shackles during a pre-determination hearing before a

juvenile court judge, Respondent has not found any

cases holding that such an event constituted a

constitutional violation.

The Supreme Court has determined that the due

process clause of the Fifth and Fourteenth

Amendments has long forbidden routine use of visible

shackles during a jury trial, absent a trial court

determination that restraints are justified by a state

interest specific to the particular defendant on trial.

Deck v. Missouri, 544 U.S. 622, 622-23 (2005).

There are also cases out of the State of Oregon, the

State of Illinois and the State of Washington that deal

with restraints used in courtrooms during actual

delinquency proceedings where the Court is

determining whether the juvenile is delinquent and

what the term of detention will be, and they have

opined that shackling a juvenile is unconstitutional.

Respondent will address the cases out of each of these

States.

In the State of Oregon, in 1995, the Court of

Appeals of Oregon held that during the juvenile’s

actual delinquency hearing, the Juvenile Court’s

14

failure to grant the juvenile’s motion to order his leg

chains removed in court was harmless error because

there was no evidence that the Court’s credibility

determinations were impermissibly skewed, no

indication that the leg chains adversely affected the

juvenile’s decision to testify and no indication that the

juvenile’s right to consult with counsel was impaired in

any fashion. State ex rel. Juvenile Department of

Multnomah County v. Millican, 138 Or.App. 142, 14749 (1995). In 1980, in State v. Moore, 45 Or.App. 837,

839-841 (1980), the Court held that shackling a

criminal defendant in an actual juvenile

delinquency hearing is potentially prejudicial by

impinging on the defendant’s Fifth Amendment and

due process rights against self-incrimination by mute

testimony of violent disposition.

To restrain a

defendant in that type of proceeding without

substantial justification is a ground for reversal, but a

trial judge has the discretion to order shackling of the

defendant if there is evidence of an immediate and

serious risk of dangerous or disruptive behavior.

Neither of these cases contemplate a “stand alone”

constitutional claim for money damages.

In the State of Washington in 2002, the Court of

Appeals of Washington, Division 1, held that it was

harmless error during an adjudication of

delinquency when a juvenile appeared in restraints

at a bench trial on a felony harassment charge, as the

likelihood of prejudice was greatly reduced since the

proceeding was without a jury. State v. E.J.Y., 113

Wash.App. 940, 951-953 (2002).

15

In Illinois, the Appellate Court of Illinois, Third

District, held that a juvenile in a delinquency

proceeding should not be required to appear shackled

in the courtroom except when it is necessary and when

there are no other less extreme measures available. In

re: Derwin Staley, 40 Ill.App.3d 528, 530-533 (1976). A

good reason must be shown by the state to justify

shackling a defendant during his trial before it is

determined whether he is innocent or guilty. Id. The

Supreme Court of Illinois considered the Staley case on

appeal, and the Supreme Court affirmed the Court of

Appeals and held that the rule that an accused should

not be subjected to physical restraint while in court

unless the restraint is necessary to maintain order is

just as applicable to trial by the court as it is to trial by

jury. People v. Staley, 67 Ill.2d 33, 36-38 (1977). While

the Illinois Supreme Court acknowledged that there

may be circumstances that justify the restraint of an

accused, the accused must pose an escape or safety

threat, and that fact must be clearly established in the

record. These cases did not recognize a stand alone

cause of action for money damages.

There are no cases where a Court has found that

use of a shackle is unconstitutional in a probable cause

hearing or a pre-determination hearing. Respondent

does not believe, for the reasons set forth above, that

there was any constitutional violation attributable to

Harrison County. However, even if there was a

constitutional violation, no violation occurred through

the deliberate indifference of Harrison County or its

Juvenile Probation Board. While Petitioner cites some

authority that an alleged constitutional claim can

always have nominal damages awarded, and damages

16

such as embarrassment and humiliation can be

assumed in such cases, Petitioner never pled for

nominal damages and Petitioner did not testify or

present any evidence of any injury or damage resulting

from embarrassment or anything else.

A. Specific Cases Cited by Petitioner

To a very large extent, Petitioner hangs his hat on

United States v. Sanchez-Gomez, 859 F.3d 649, 659-71

(9th Cir. 2017), vacated and remanded, 584 U.S. 381,

138 S. Ct. 1532, 200 L. Ed. 2d 792 (2018). While the

Sanchez-Gomez cases are extremely interesting to read,

the Supreme Court vacated the Ninth Circuit’s

judgment and remanded with instructions to dismiss

the case as moot. Id. For that reason, Respondent

would strongly suggest that case not be given any

weight, and certainly not the weight of the other cases

which have been cited in the arguments of the Parties

hereto.

The other cases cited by Petitioner, can be grouped

as follows.

1. Parties Should Not be Unnecessarily

Restrained in Front of a Jury

In In re C.B., 386 Ill. App. 3d 735, 744-45, 898

N.E.2d 252, 260-61 (2008), aff’d sub nom. In re

Jonathon C.B., 2011 IL 107750, 958 N.E.2d 227, as

modified on denial of reh’g (Nov. 28, 2011), the

Appellate Court held that the trial court erred in

permitting the criminal defendant to be: 1) brought

into court in the presence of the jury by the jailer with

handcuffs; 2) while also handcuffed to another prisoner;

and 3) to remain so manacled during the greater part

17

of the trial; to which the defendant at the time objected

and excepted. Although it is within a Court’s discretion

to restrain the defendant and will not be reversed

absent an abuse of that discretion, the court must hold

a hearing outside the presence of the jury, allowing the

defendant’s attorney the opportunity to argue why the

defendant should not be shackled. Id. at 744. If the

trial court orders the defendant to remain shackled, the

court must also state the reasons for its decision on the

record. Id. In Illinois, this rule applies to both bench

and jury trials on the merits of the criminal case. Id.

(citing People v. Strickland, 363 Ill.App.3d 598, 603,

300 Ill.Dec. 297, 843 N.E.2d 897, 901 (2006)). The

court held that the shackling of an accused should be

avoided if possible because shackling: (1) tends to

prejudice the jury against the accused; (2) restricts the

accused’s ability to assist his counsel during trial; and

(3) offends the dignity of the judicial process. Id. (citing

People v. Boose, 66 Ill.2d 261, 265, 5 Ill.Dec. 832, 362

N.E.2d 303, 305 (1977)). Therefore, Boose held that an

accused should not be kept in restraints while in court

and in the presence of the jury unless there is a

manifest need for such restraints. Id. The Boose court

set out factors to be considered by the trial judge in

making his determination, and stated that the record

should clearly disclose the reason underlying the trial

court’s decision for the shackling, and show that the

accused’s attorney was given an opportunity to oppose

this decision. Id. Thereafter, in In re Staley, 67 Ill.2d

33, 7 Ill.Dec. 85, 364 N.E.2d 72 (1977), the court

extended Boose protections to juveniles being tried in

delinquency proceedings. The Staley court noted that

there is no jury trial in delinquency proceedings, but

pointed out that the “possibility of prejudicing a jury,

18

however, is not the only reason why courts should not

allow the shackling of an accused in the absence of a

strong necessity for doing so.” Id. at 37. An accused

also has the right to stand trial “with the appearance,

dignity, and self-respect of a free and innocent man.”

Id. The court also noted that shackling restricts the

ability of an accused to cooperate with his attorney and

to assist in his defense. Id. Therefore, the reasons for

forbidding shackling were not limited to trials by jury.

The rule in Illinois, however, is limited to trials.

In People v. Best, 19 N.Y.3d 739, 744-45, 979 N.E.2d

1187, 1189 (2012), the Appellate Court noted that the

District Court had articulated no justification, let alone

one specific to the defendant, for ordering the

defendant’s continual restraint. While such a basis may

very well have existed, the court’s failure to say so on

the record constituted a violation of defendant’s

constitutional rights under Deck. Id. at 744 (citing

Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161

L.Ed.2d 953 (2005)). However, in New York, a

constitutional harmless error analysis applies to

shackling violations. Id. In this case, the Court

concluded that the trial court’s omission was indeed

harmless. Id. A constitutional error may be harmless

where evidence of guilt is overwhelming and there is no

reasonable possibility that it affected the outcome of

the trial. Id. It must also be noted that Best involved

a criminal case, an adult defendant and a jury trial on

the merits.

In Sides v. Cherry, 609 F.3d 576, 578-86 (3d Cir.

2010), the Third Circuit decided that “fairness in a jury

trial, whether criminal or civil in nature, is a vital

19

constitutional right,” and that concerns over restraints

should extend not just to criminal defendants, but to

inmates bringing civil actions and inmate-witnesses as

well. The Third Circuit Court of Appeals held that

requiring a party in a civil trial to appear in shackles

“may well deprive him of due process unless the

restraints are necessary,” and a district court’s decision

to restrain an inmate physically during a civil trial is

reviewed on an abuse of discretion standard. Id. at

581. District courts should balance the prejudice to the

prisoner-plaintiff against the need to maintain safety

or security. Id. District courts have a “responsibility

to determine whether [a prisoner-plaintiff’s] due

process right not to appear before the jury in shackles

... [is] outweighed by considerations of security.” Id.

When a district court determines that restraints are

necessary, it should “impose no greater restraints than

are necessary, and must take steps to minimize the

prejudice resulting from the presence of the restraints.”

Id. at 581-82. When physical restraints are necessary,

a district court “should take appropriate action to

minimize the use of shackles, to cover shackles from

the jury’s view, and to mitigate any potential prejudice

through cautionary instructions.” Id. District courts

should hold a proceeding outside the presence of the

jury to address the issue with counsel. Id. at 582. If

there are genuine and material factual disputes

regarding the threat to courtroom security posed by a

prisoner-plaintiff, an evidentiary hearing is called for.

Id. In determining whether an inmate should be

physically restrained during trial, district courts may

rely on a variety of sources, including (but not limited

to) records bearing on the inmate’s “proclivity toward

disruptive and/or violent conduct” (such as the inmate’s

20

criminal history and prison disciplinary record), and

the opinions of “correctional and/or law enforcement

officers and the federal marshals.” Id. Although a

district court may rely “heavily” on advice from court

security officers, it “bears the ultimate responsibility”

of determining what restraints are necessary, and “may

not delegate the decision to shackle an inmate to the

marshals.” Id. If a trial court delegates the shackling

decision to court security officers, “that is not an

exercise of discretion but an absence of and an abuse of

discretion.” Id. In the Sides case, the Court adopted

the Deputy Marshal’s advice, but the Court

acknowledged that the Marshal’s view was only a

recommendation and that the Court “could have the

shackles removed.” Id. The Third Circuit, however,

held that it did not need to determine whether the

District Court abused its discretion because it

concluded that any error was harmless. Id. at 584. The

Third Circuit recognized that trial courts have the

weighty responsibility of ensuring the security of their

court rooms, and endorse their broad discretion in

determining whether it is necessary to have a

prisoner-party or witness physically restrained during

a civil trial. Id. at 585-86. So long as a district court

engages in an appropriate inquiry and supplies a

reasonable basis for its decision, the Third Circuit will

always defer to its determination that physical

restraints are necessary to ensure courtroom security,

as the trial judge is uniquely positioned and qualified

to make that determination. Id. at 586. Importantly

here, the Sides case involved a jury trial on the merits

of an adult defendant in a criminal case.

21

In United States v. Henderson, 915 F.3d 1127,

1132-41 (7th Cir. 2019), the Seventh Circuit held that

a due-process challenge to a judge’s shackling order can

be effectively reviewed as part of the “regular appeals

process,” so Henderson did not lack an adequate

remedy. Accordingly, the Court declined to construe the

notice of appeal as a petition for mandamus and was

left with an interlocutory appeal that did not fall

within the collateral-order doctrine. Id. at 1129.

Consequently, the Seventh Circuit dismissed the

appeal for lack of jurisdiction. Id. However, the

Seventh Circuit went on to reiterate that the trial

judge was the person responsible for making the

decisions, and the judge could not simply delegate that

responsibility to the Marshals Service or other

correctional or security staff. Id. at 1135-36. Although

a trial court’s decisions about the required level of

security during a trial are entitled to deference, those

decisions must be made by the court itself; the trial

judge may not delegate his discretion to another party.

Id. While the trial court may rely ‘heavily’ on the

marshals in evaluating the appropriate security

measures to take with a given prisoner, the court bears

the ultimate responsibility for that determination and

may not delegate the decision to shackle an inmate to

the marshals. Id. at 1136. This need for a decision by

the judge runs through the Supreme Court’s decisions

on courtroom restraints, as well. Id. The Fifth and

Fourteenth Amendments prohibit use of physical

restraints visible to the jury “absent a trial court

determination, in the exercise of its discretion, that

they are justified by a state interest specific to a

particular trial.” Id. (citing Deck v. Missouri, 544 U.S.

622, 629, 125 S. Ct. 2007 (2005)). The Henderson and

22

Deck Courts made it clear: the level of security needed

during trial is to be determined by the Judge, not

security personnel.

In United States v. LaFond, 783 F.3d 1216, 1225

(11th Cir. 2015), the Eleventh Circuit stated as follows:

[I]t is laid down in our ancient books that, though

under an indictment of the highest nature, [a

defendant] must be brought to the bar without

irons.... But ... a difference was taken between the

time of arraignment and the time of trial; and

accordingly the [defendant] stood at the bar in

chains during the time of his arraignment.

4 William Blackstone, Commentaries *321 (footnotes

omitted); see also Trial of Christopher Layer, 16 How.

St. Tr. 94, 100-01 (K.B. 1722) (“No doubt when he

comes upon his trial, the authority is that he is not to

be ‘in [chains]’ during his trial.... Here he is only called

upon to plead by advice of his counsel; ... when he

comes to be tried, if he makes that complaint, the Court

will take care he shall be in a condition proper to make

his defense....”). The Eleventh Circuit emphasized that

the Supreme Court made clear in Deck that the rule

“was meant to protect defendants appearing at trial

before a jury.” Id. (quoting Deck v. Missouri, 544 U.S.

622, 626, 125 S. Ct. 2007, 2011 (2005)). Indeed, as the

Eleventh Circuit pointed out, the Second Circuit had

also held that the rule does not apply to sentencing

proceedings without a jury, United States v. Zuber, 118

F.3d 101, 102 (2d Cir.1997) (“[T]he rule that courts may

not permit a party to a jury trial to appear in court in

physical restraints without first conducting an

independent evaluation of the need for these restraints

23

does not apply in the context of a non-jury sentencing

hearing.”). Id. Because the rule against shackling

pertains only to a jury trial, the Eleventh Circuit held

that it did not apply to a sentencing hearing before a

district judge. Id.

In United States v. Zuber, 118 F.3d 101, 103-06 (2d

Cir. 1997), the Second Circuit rejected, as a matter of

law, the contention that the district court erred in

deferring to the recommendation of the Marshals

Service on the need to restrain the defendant at his

sentencing hearing, and the Court wrote to distinguish

the Zuber case from those in which the Court has

required an independent, on the record, judicial

evaluation of the need to employ physical restraints in

court. Courts have recognized the danger to a criminal

defendant in being required to appear before a jury in

physical restraints. Id. at 103. In particular, “courts

[have] found that the appearance of the [party] in

shackles would prejudice the jury, causing them to

believe that the person was dangerous.”

Id.

Accordingly, the Second Circuit has held that a

presiding judge may not approve the use of physical

restraints, in court, on a party to a jury trial unless the

judge has first performed an independent evaluation,

including an evidentiary hearing where necessary, of

the need to restrain the party. Id. The possibility that

jurors will be prejudiced by the presence of physical

restraints is not the sole rationale for placing strict

limitations on their use in court, but juror bias

certainly constitutes the paramount concern in such

cases. Id. at 103-04. Indeed, courts will find harmless

error where it is determined that the use of restraints

was unlikely to have influenced members of the jury.

24

Id. Here, in contrast, it is the alleged prejudice in the

mind of the sentencing judge that serves as the basis

for the defendant’s due process claim. Id. at 104. The

Second Circuit declined to extend the rule requiring an

independent judicial evaluation of the need to restrain

a party in court to the context of non-jury sentencing

proceedings. Id. Either directly or through courtroom

deputies, law clerks or secretaries, district judges

regularly consult with the Marshals Service regarding

precautions to be taken at hearings involving persons

who are in custody. Id. The Marshals Service is, of

course, charged with the movement of persons in

custody in and around the courthouse, and responsible

also for court security. Id. Not surprisingly, in most

such cases, a district judge will defer to the

professional judgment of the Marshals Service

regarding the precautions that seem appropriate or

necessary in the circumstances. Id. Moreover, it has

never been suggested, and it is not the rule, that every

time a person in custody is brought into a courtroom in

restraints, a hearing on the record with counsel is

required, much less an evidentiary hearing and factfinding by the district judge. Id. The Second Circuit

traditionally assumes that judges, unlike juries, are not

prejudiced by impermissible factors, see, e.g., LiButti v.

United States, 107 F.3d 110, 124 (2d Cir.1997)). Id.

For instance, many of the management problems which

a trial court invariably has to wrestle with in order to

guard against unfair prejudice when one takes the

proverbial Fifth simply do not exist in the context of a

bench trial. Id. A judge conducting a bench trial can

hear evidence that he ultimately determines to be

inadmissible without prejudice to his verdict, and the

Second Circuit made no exception. Id. The Second

25

Circuit presumed that where, as in Zuber, the court

defers without further inquiry to the recommendation

of the Marshals Service that a defendant be restrained

at sentencing, the court will not permit the presence of

the restraints to affect its sentencing decision. Id. The

Second Circuit was confident that experienced district

judges are able to avoid the influence of inappropriate,

irrelevant, or extraneous information. Id.

B. Not Every Court Proceeding Requires an

Individual Assessment Before Restraining

a Juvenile in Court

In State v. Doe, 157 Idaho 43, 49-58, 333 P.3d 858,

864-73 (Ct. App. 2014), Doe contended that for a

juvenile to be shackled in any juvenile court

proceeding, due process requires that an adversarial

hearing be conducted, after which a court must make

individualized findings about the individual juvenile

regarding whether the juvenile may continue to be

shackled during subsequent court proceedings. The

Appellate Court held that due process requires that

juveniles in Idaho be afforded the same rights as adults

to be free from physical restraints at trial, absent a

finding of necessity on a case-by-case basis, in the

equivalent juvenile proceeding in Idaho, which is an

evidentiary hearing. Id. at 53. However, the Appellate

Court in Idaho stated:

We take care to note that our decision does not

extend to the length argued by Doe-that due

process prohibits routine shackling of juveniles

in any juvenile proceeding, including the

preliminary hearing at issue in this case.

Although we do not dispute the rationality of

26

such an argument, and indeed, strongly suggest

that inquiry into the propriety of such a practice,

and the extent to which it occurs in Idaho, would

be a worthy undertaking by the Juvenile Rules

Advisory Committee of this State, we cannot say

that such a prohibition is required by due

process. Neither the United States Supreme

Court nor the Idaho Supreme Court have held

that due process prohibits routine shackling of

adults in preliminary proceedings, and thus, to

adopt Doe's argument in this regard would

require us to forge entirely new ground without

basis in the existing law of this State.

Id. at 57-58.

In Oregon, in State ex rel. Juv. Dep’t of Multnomah

Cnty. v. Millican, 138 Or. App. 142, 148, 906 P.2d 857,

860-61 (1995), the Appellate Court determined that the

presence of shackles affected the trial court’s

assessment of the evidence, particularly on critical

issues of credibility.

At the beginning of the

delinquency proceeding, the juvenile court stated that

the leg chains “won’t affect the Court’s view of the

evidence here.” Id. The child’s trial counsel concurred,

stating that she “frankly believe[d] the court can

overlook that,” and made no record either during or

after the proceeding as to any prejudicial impact on the

juvenile court as the trier of fact. Id. The child argued

on appeal, that nevertheless, even if the presence of

shackles did not somehow bias the court’s assessment

of his credibility, his demeanor itself – that is, the

manner in which he presented himself to the court

through posture, facial expressions, and the like – was

27

affected by his shackling. Id. The Court held that

whatever the merits of such a consideration in a

different case might be, it was unsupported on the

record in Millican.

Id.

Based on the Court’s

independent review of the evidence, the Court did not

believe that the trial court’s credibility determinations

were impermissibly skewed. Id. As to the second and

third potential sources of prejudice, the Court held that

there was no indication in the record that the leg

chains adversely affected the child’s decision to testify,

or inhibited him from consulting with counsel. Id. On

the record before the Appellate Court, the Court was

satisfied that any constitutional error in denying the

child’s motion to be unshackled was harmless beyond

a reasonable doubt. Id.

C. Blanket Shackling Applies to Pre-trial

Proceedings in Washington State

In State v. Jackson, 195 Wash. 2d 841, 847-58, 467

P.3d 97, 100-05 (2020), the Appellate Court held that

pretrial shackling without an individualized

determination of need violated Jackson’s constitutional

rights. Consequently, the Washington State Supreme

Court extended the trial protections against blanket

shackling policies to pretrial proceedings as well. Id.

The Court noted that it was “well settled that a

defendant in a criminal case is entitled to appear at

trial free from all bonds or shackles except in

extraordinary circumstances.” Id. at 852 (citing State

v. Finch, 137 Wash.2d 792, 842, 975 P.2d 967 (1999)

(plurality opinion)). The Supreme Court in the State of

Washington determined that the constitutional right to

a fair trial was also implicated by shackling and

28

restraints at nonjury pretrial hearings. Id. at 852.

However, trial court judges are vested with the

discretion to determine measures that implicate

courtroom security, including whether to restrain a

defendant in some capacity in order to prevent injury.

Id. However, that discretion “must be founded upon a

factual basis set forth in the record.” Id. at 852-53.

The Court held that a broad general policy of imposing

physical restraints upon prison inmates charged with

new offenses because they may be “potentially

dangerous” was a failure to exercise discretion. Id.

II. Issue Two: Whether Harrison County had a

policy, custom or practice of violating the

constitutional rights of Juvenile Defenders.

To impose liability on a local government under

section 1983, proof of three elements are required: 1) a

policymaker; 2) an official policy; and 3) a violation of

constitutional rights whose “moving force” is the policy

or custom. Monell v. Dep’t. of Social Sciences, 436 U.S.

658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611 (1978).

Monell and later decisions reject municipal liability

predicated on respondeat superior, so any

unconstitutional conduct must be directly attributable

to the municipality through some sort of official action

or imprimatur; isolated unconstitutional actions by

local government employees will almost never trigger

liability. Bennett v. City of Slidell, 728 F.2d 762, 768

n.3 (5th. Cir. 1984), cert. denied, 472 U.S. 1016, 105 S.

Ct. 3476 (1985); McKee v. City of Rockwall, 877 F.2d

409, 415 (5th Cir. 1989), cert. denied, 493 U.S. 1023,

107 L. Ed. 2d 746, 110 S. Ct. 727 (1990).

29

Municipal liability for Section 1983 violations

results if a deprivation of constitutional rights was

inflicted pursuant to official custom or policy. Official

policy is ordinarily contained in duly promulgated

policy statements, ordinances or regulations. But a

policy may also be evidenced by custom, that is, a

persistent, widespread practice of government officials

or employees, which, although not authorized by

officially adopted and promulgated policy, is so common

and well-settled as to constitute a custom that fairly

represents municipal policy. Id. Actions of officers or

employees of a municipality or a county do not render

the entity liable under Section 1983 unless they

execute official policy as above defined. Webster v.

Houston, 735 F.2d 838, 841 (5th Cir. 1984). Also, such

an unofficial policy must have been effectively

“adopted” by a policymaker, who showed deliberate

indifference to the persistent widespread practice that

was occurring, and the threat of deprivations of

constitutional rights it caused, and did nothing to

correct it. Id. As the en banc court stated in Webster, if

“actions of city employees are to be used to prove a

custom for which the municipality is liable, those

actions must have occurred for so long or so frequently

that the course of conduct warrants the attribution to

the [policymaker] of knowledge that the objectionable

conduct is the expected, accepted practice of city

employees.” Id. (emphasis added).

For a Texas county, its Juvenile Board has

policymaking authority over juvenile services, juvenile

detention and juvenile probation. See, e.g. Flores v.

Cameron County, 92 F.3d 258, 264-269 (5th Cir. 1996).

For Defendant Harrison County to be liable for the

30

conduct of the Juvenile Board as policymaker in

allowing or implicitly approving a de facto policy, the

Board must have known of persistent and widespread

conduct that was likely to result in the particular

violation suffered by the Plaintiff and chose to allow it

to continue. Id. Deliberate indifference of this sort is a

stringent test, and “a showing of simple or even

heightened negligence will not suffice” to prove

municipal culpability. See Board of County

Commissioners of Bryan County v. Brown, 520 U.S.

397, 407, 117 S. Ct. 1382, 1389, 1390 (1997). Stated

another way, to establish county liability in this case,

the “policy” must have been a “deliberate and conscious

choice” by the Board to allow the conduct that

allegedly caused the injury. City of Canton v. Harris,

489 U.S. 378, 389, 109 S. Ct. 1197 (1989). Likewise, if

Plaintiff alleges an official written policy of the County,

that too must have been adopted with deliberate

indifference to the fact that the policy would result in

the particular violation of which Plaintiff complains.

See, e.g. Benavides v. County of Wilson, 955 F.2d 968,

973-74 (5th Cir. 1992).

In addition to culpability, there must be a direct

causal link between the municipal policy and the

constitutional deprivation. Id. Monell describes the

high threshold of proof by stating that the policy must

be the “moving force” behind the violation. Monell, 436

U.S. at 694, 98 S. Ct. at 2037-2038. So, in the present

case, Plaintiff must plead and prove both the causal

link (“moving force”) and the county’s degree of

culpability (“deliberate indifference” to federally

protected rights). Id. These requirements must not be

diluted, for if a court fails to adhere to rigorous

31

requirements of culpability and causation, municipal

liability collapses into respondeat superior liability.

See, e.g. Snyder v. Trepagnier, 142 F.3d 791, 796 (5th

Cir. 1998).

Following the orders of the Juvenile Court Judge to

keep shackles in place during a probable cause or predetermination hearing is not a policy of Harrison

County.7 It is pursuant to the Court’s order. Juveniles

are not shackled during adjudication of delinquency.

Petitioner has failed to identify an unconstitutional

formal written policy of the Juvenile Board. Petitioner

has also failed to prove a particular widely persistent

pattern of behavior that could be characterized as an

unconstitutional practice or custom adopted with

deliberate indifference by the Juvenile Board for the

purposes of imposing county liability.

CONCLUSION

After a diligent search for cases that address

whether it is unconstitutional to leave a juvenile in

shackles during a probable cause hearing or a

pre-determination hearing before a Juvenile Court

Judge, Respondent has not found any cases holding

that such an event has ever been found to constitute a

constitutional violation. The adversarial rights of a

juvenile defendant in a proceeding to determine

delinquency (similar to the adversarial rights in the

guilt/innocence or liability phase of a criminal or civil

trial), do not exist in the context of a probable cause

7

A juvenile could appeal the Court’s order, but a judge has

absolute immunity for a civil action brought pursuant to 42 U.S.C.

§ 1983.

32

hearing or a pre-determination hearing. There are no

cases that have ever found such a right to exist. Stated

as succinctly as possible, a juvenile does not have a

constitutional right to have leg shackles removed

during a probable cause or pre-determination hearing.

Additionally, the Judge that requires shackles to

remain in place during probable cause or predetermination hearings is a State actor, not a County

actor. The State Juvenile Court Judge controls matters

that occur in her court, not the Harrison County

Juvenile Board – which is the policymaker for juvenile

services in Harrison County.

First, there is no underlying constitutional

violation, and second, there is no unconstitutional

Harrison County policy, custom or practice that was

ever adopted with deliberate indifference by the

Harrison County Juvenile Board. The requirements for

County liability as set forth in Monell and it progeny do

not exist in this case.

Respectfully submitted,

Robert S. Davis

Counsel of Record

Flowers Davis, P.L.L.C.

1021 ESE Loop 323, Suite 200

Tyler, Texas 75701

(903) 534-8063

(903) 534-1650 Facsimile

rsd@flowersdavis.com

Attorneys for Respondent

Harrison County, Texas