Opposition Brief — District of Columbia v. Parker

In THE =

Supreme Court of the United States

OCTOBER TERM, 1988

DISTRICT OF COLUMBIA,

Petitioner,

Vv.

DONALD R. PARKER,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

RESPONDENT'S BRIEF IN OPPOSITION

WILLIAM W. TAYLOR, ITI *

ROGER E. ZUCKERMAN

QUESTIONS PRESENTED

1. Whether the trial court committed reversible error

when it declined to instruct the jury that a police

officer may use deadly force to apprehend a person

suspected of a crime of violence when the instruction

had no application to the evidence in this case and

did not in any event accurately reflect the holding of

Tennessee v. Garner, 471 U.S. 1 (1985).

. Whether the District of Columbia preserved, under

Federal Rule of Civil Procedure 51, its objection to

the trial court’s refusal to give its proposed instruc-

tion purportedly based upon Garner, and whether this

Court should review the application of Rule 51 by the

Court of Appeals.

. Whether this Court should review the sufficiency of

the evidence supporting the verdict, where the trial

and appellate courts have reviewed that evidence four

times and found it ample, where the legal foundation

for that verdict is entirely consistent with this

Court’s decisions in Monell v. Department of Social

Services of the City of New York, 436 U.S. 658

(1978), and City of Oklahoma City v. Tuttle, 471

U.S. 808 (1985), and where the District of Columbia

did not object to jury instructions based upon those

decisions.

(i)

TABLE OF CONTENTS

Page

ty 8 By g _: | eee i

CONSTITUTIONAL AND STATUTORY PROVI-

ET Cea 1

STATEMENT OF THE CASE ........................................ 2

SL CR 2

ER 2

A 5

The Absence of Supervision, Command and Con-

a cesgumsipetnonbieiomsnsianainnn 7

The Absence of Training in Nondeadly Con-

frontation Techniques ...........................................- 9

The Refusal to Retrain or Discipline —................. 12

RT 14

I cesiciaiat 16

ET A ee 17

Affirmance by the Court of Appeals —.................... 17

REASONS FOR DENYING THE WRIT .......... 18

I. The Court of Appeals Correctly Affirmed the

District Court’s Refusal to Instruct the Jury

That a Police Officer May Use Deadly Force to

Apprehend a Person Suspected of a Violent

Crime Because (a) the Issue Was Not Presented

By the Evidence and (b) the Instruction Re-

quested Did Not Accurately Reflect the Holding

of Tennessee v. Garner ............ 18

II. The Garner Instruction Issue Was Not Pre-

served and the Court of Appeals’ Application of

Federal Rule of Civil Procedure 51 Does Not

Warrant Review ............... 23

Ill. The Court of Appeals’ Decision is Entirely Con-

sistent With This Court’s Decisions in Monell v.

Department of Social Services of the City of

New York, City of Oklahoma City v. Tuttle, and

Pembaur v. City of Cincinnati, and Presents No

Issue Requiring Determination By This Court.... 26

CONCLUSION ................... “ 30

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Carter v. District of Columbia, 795 F.2d 116 (D.C.

Cir. 1986) ......... 22

City of Canton v. Harris, 108 S.Ct. 1105 (1988).... 29-30

City of Los Angeles v. Heller, 475 U.S. 796, 106

S.Ct. 1571 (1986)............ 23

City of Oklahoma City v. Tuttle, 471 U.S. 808

a a alaninelanel passim

City of Springfield v. Kibbe, 480 U.S. 257, 107 S.Ct.

1114 (1987) 27, 28

Dunn v. St. Louis-San Francisco Ry. Co., 370 F.2d

— 8 eee 25, 26

Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir.

1986), cert. denied, 480 U.S. 922 (1987) ............. 22

Fischer v. Dallas Federal Savings and Loan Assn.,

835 F.24 S67 (Sth Cir. 1968) -................................ 25-26

Grandstaff v. City of Borger, 767 F.2d 161 (5th

Cir. 1985), cert. denied, 480 U.S. 916 (1987) -... 22

Harris v. Cmich, No. 85-3314 (6th Cir. July 2,

1986), cert. granted sub nom. City of Canton v.

Herris, 108 S.Ct. 1105 (1988) .............................. 28

Johnson v. Houser, 704 F.2d 1049 (8th Cir. 1983) .. 25

Kibbe v. City of Springfield, 777 F.2d 801 (1st

Cir. 1985), cert. dismissed, 480 U.S. 257 (1987).. 22

Klapmeier v. Telecheck International, Inc., 482

- & gg fo S& £4 26

Monell v. Department of Social Services of the

City of New York, 436 U.S. 658 (1978) -............ passim

Morgan v. District of Columbia, 824 F.2d 1049

CEE, Te IT | accistdpsiicteecthnisacceiiaginabidianieniabememcnsins 28

Murphy v. Owens-Illinois, Inc., 779 F.2d 340 (6th

SR PIE chic otesertecascecedandeakiendghalabicomssiamineanhiudedeheabbetaridide 26

Pembaur v. City of Cincinnati, 475 U.S. 469, 106

te I aac a 28

Spanish Action Committee of Chicago v. City of

Chicago, 766 F.2d 315 (7th Cir. 1985) —............. 26

Tennessee v. Garner, 471 U.S. 1 (1985) -......--...... passim

Torres-Valencia v. United States, 464 U.S. 44

SIE. iicebhecpvcesecaaieieccuiaalaes 27

Vv

TABLE OF AUTHORITIES—Continued

Page

United States v. Heyward-Robinson Co., 430 F.2d

1077 (2d Cir. 1970), cert. denied, 400 U.S. 1021

ETE. ascninscinsiinniiipteaienianianend nae 26

United States v. Johnston, 268 U.S. 220 (1925)... 27

CONSTITUTIONAL AND STATUTORY

PROVISIONS

i, UU serene 1

42 U.S.C. § 1988 ........ 1-2

OTHER AUTHORITIES

Federal Rule of Civil Procedure 51 ........................... passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-810

DISTRICT OF COLUMBIA,

- Petitioner,

DONALD R. PARKER,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

RESPONDENT'S BRIEF IN OPPOSITION

The respondent Donald R. Parker respectfully requests

that this Court deny the petition for writ of certiorari

seeking review of the opinion of the United States Court

of Appeals for the District of Columbia Circuit in this

case. That opinion is reported at 850 F.2d 708 (D.C.

Cir. 1988).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitu-

tion provides, in relevant part: “The right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated . . .” U.S. Const. amend. IV.

42 U.S.C. § 1983 provides in relevant part: “Every

person who, under color of any statute, ordinance, regu-

lation, custom, or usage, of . . . the District of Columbia,

2

subjects, or causes to be subjected, any citizen of the

United States . . . to the deprivation of any rights...

secured by the Constitution and laws, shall be liable to

the party injured in an action at law. . .”

STATEMENT OF THE CASE

Introduction

As the Court of Appeals observed, this was a “fact-

bound case” [Appendix to Petition for Writ of Certio-

rari (App.) at 13a]. Petitioner District of Columbia

persists here, as it did in the Court of Appeals, in rely-

ing largely upon its own evidence. It repeatedly char-

acterizes its evidence as “uncontradicted”* when the

contrary is true and dismisses or ignores vast portions

of the record.2 Respondent fundamentally disagrees, as

did the trial judge, and two of the three judges on the ap-

pellate panel, with petitioner’s suggestion that the jury

was erroneously induced to apply a standard for the use

of deadly force inconsistent with applicable law. To the

contrary, the jury was clearly and rigorously instructed

on Parker’s burden to establish that he was injured by

the use of deadly force unreasonable under the circum-

stances and that the District of Columbia was directly

and not vicariously responsible. The evidence, viewed

in the appropriate perspective of the plaintiff, provides an

overwhelming basis for the conclusion that Parker met

that burden.

The Facts

On November 15, 1982, William Hayes fired four shots

at Donald Parker from a distance of ten to fifteen feet.

Two of the shots entered Parker’s body and one lodged

in the spine, paralyzing him from the waist down. Parker

1£.g., Petition for Writ of Certiorari (Petition) at 5, 6, and 27.

2 See, e.g., the trial assistant’s clear statement to the trial judge

that the District of Columbia was not relying on the “fleeing felon”

rule to justify the shooting. (Tr. 1488-89, discussed infra at 20.)

3

Was unarmed and his arms were upraised. Both hands

were visible. (Tr. 218, 1288-89, 1303-05.)

Hayes claimed he shot Parker because he believed

Parker was armed at the time he fired and that Parker

was about to shoot him. Parker was not fleeing at the

time of the shooting, and neither Hayes nor the District

of Columbia defended the shooting as necessary to pre-

vent Parker’s flight.*

The shooting occurred on a suburban road in Prince

George’s County, Maryland. Hayes, and his partner

Ronald Motley, were members of a recently created unit

of the District of Columbia Metropolitan Police Depart-

ment called the Repeat Offender Project, or “ROP” unit.

They had been dispatched to the area by the ROP unit

to locate and apprehend Parker, who was the subject of

a District of Columbia arrest warrant for armed

robbery.‘

Parker filed suit against the District of Columbia al-

leging that it had violated his constitutional rights and

was liable for the resulting damage under 42 U.S.C.

$ 1983. At trial, he presented an array of testimonial

and documentary evidence dealing with the creation and

operation of the ROP unit, training, supervision, control,

and discipline of its members, including officer Hayes,

and the events of the day of the shooting.

The evidence demonstrated that the District of Colum-

bia created the ROP unit, selected its members, and sent

them on missions with full awareness that ROP mem-

bers would encounter citizens in situations with a high

likelihood of volatility. The evidence also demonstrated

that the District of Columbia provided woefully inade-

quate toois for handling these situations, which present

danger to officer and citizen alike, and which are highly

predictable but confusing to the ordinary officer. It com-

’ See discussion, infra at 19-20.

* All charges against Parker were later dismissed when four

witnesses to the robbery failed to identify him (Tr. 930-34).

4

pounded the inevitability of violence by imbuing the ROP

squad members with the notion that they were not to seek

guidance when they encountered difficult situations, but

were to ad lib their responses to meet their objective.

The jury was amply justified in concluding that the Dis-

trict of Columbia was responsible for Parker’s injuries.

Two acknowledged experts in matters of police admin-

istration and practice, particularly as regards proper

training, procedures, and control in volatile extra-

jurisdictional investigations, explained why that was so.

One was Roy C. McLaren, former Director of Field Op-

erations for the International Association of Chiefs of

Police, Chief of Police for Arlington County, Virginia,

member of the Police Chiefs Steering Committee for the

Washington Metropolitan Area, Director of the Law En-

forcement Standards Division of the Police Executive Re-

search Forum, and coauthor (with the late Orlando W.

Wilson, Superintendent of Police in Chicago) of the land-

mark treatise, Police Administration, perhaps the most

widely used book on police management in the United

States. (Tr. 665-72.)

Another was Charles W. Bates. a retired 36-year FBI

agent formerly in charge of field offices in Omaha, Cleve-

land, Chicago, and San Francisco, and Assistant Director

in charge of criminal investigations at FBI headquarters

in Washington, D.C. Bates had made at least 500 ar-

rests during his career, including numerous arrests of

armed and dangerous felons. He was responsible for the

entire supervision of the 1974 Patricia Hearst kidnap-

ping case. Bates had particular expertise in the area of

civil rights violations by local police departments and

when it was appropriate for local police to use deadly

force. (Tr. 263-79.)

The experts explained, and the jury was entitled to

accept, that the ROP squad’s “live by your wits” ethic

was at odds with the norm for law enforcement conduct.

It was especially dangerous when combined with the ROP’s

5

failure to provide its freelancing members with confron-

tational tools that involved less than deadly force and the

failure to instruct members in the normal kinds of non-

deadly force and disarmament tactics. The absence of

command and control of ROP squad officers in extra-

jurisdictional forays, combined with the failure adequately

to train them in non-deadly confrontational techniques,

was a prescription for and the cause cf the very disaster

that occurred on November 15, 1982.

The Shooting

On November 15, 1982, Hayes and Motley confronted

Parker and his family within their home,' claiming to be

police officers from the District of Columbia. They had

no warrant. Throughout the course of their discussions

with Parker and during the events leading up to the

shooting, they never told him he was under arrest. They

did not know what their authority was. They were un-

accompanied by local police. They refused to contact lo-

cal police and were unable or unwilling to contact their

own superiors. They refused the family’s requests in all

of these regards. (Tr. 434, 435-36, 544, 991.) The of-

ficers behaved both boorishly and uncertainly. They al-

ternately threatened and cajoled. They tried to trick

Parker into leaving voluntarily. (Tr. 378.) Hayes was

menacing, displayed his weapon, and behaved aggres-

sively. Motley was inclined to leave until authority ap-

peared. (Tr. 433, 434, 991-93.) The Parkers, dressed in

underwear and night clothes and having two small chil-

dren at their feet, were frantic.

Frightened and panicked, Parker left his house through

the bedroom window and alternately walked and ran

through a nearby wooded area, followed by Motley. He

5 Hayes and Motley contended they had been told Parker would

not be there because he and his wife were estranged (Tr. 327-28,

1743-44). That was obviously inaccurate information, as was

the address they had been given in Washington for Parker’s cur-

rent residence, a shopping mall (Tr. 1743-44).

6

wanted to go to a neighbor’s home to call a lawyer.* He

decided to get on a public road, where he unexpectedly

met Hayes. He tried to enter a vehicle which had rear-

ended Hayes’ car. According to the driver he screamed,

“Help me. These people are trying to kill me.” (Tr.

437-41, 888-90. )

Hayes unsuccessfully attempted to pull Parker from

the car. With Parker partially out, between the opened

door and the body of the car, Hayes backed up and as-

sumed a protective position near the rear of the car.

Hayes said to Parker “Freeze, Parker; don’t do it.” (Tr.

197-200.) Parker attempted to comply.

Overweight, undertrained, outside the command and

control of his supervisors in the District of Columbia,

uncertain of his arrest authority, incapable of subduing

Parker by nondeadly force, unaccompanied by uniformed

Maryland officers, Hayes then fired four bullets at Parker

from his service revolver, hitting him twice (Tr. 202).

Neither Hayes nor Motley had seen Parker in possession

of a weapon at any time that day. Parker was in fact

unarmed. (Tr. 218.)

6 Parker described his conduct as follows:

THE WITNESS: Yes, Officer Hayes. Officer Hayes kept

grabbing his gun, he kept grabbing at his gun. He frightened

me with his gun, basically, as far as I’m concerned, and he

scared me to the point whereas I went into the bedroom, I told

my wife, I say, “I don’t know who this fellow is, or these

people are.” I say, “They don’t have a warrant or anything.”

I say, “I’m getting out of here. I’m getting out of here.”

Before I went into the bedroom, I beg Officer Hayes could she,

my wife, go and call my lawyer also, before I done that. They

refused everything. They refused everything. They wouldn’t

allow us to do anything. They just simply just came into my

house and ramshacked it and took it over.

I went into the bedroom. I told my wife, I say, “I’m scared,

sugar, real frightened. I don’t know who these guys are, what

they are.” I say, “I’m going to try to go over to the neighbor’s

house and call the attorneys. And that’s what occurred.”

(Tr. 435-36.)

7

Dr. William Brownlee, formerly the Deputy Medical

Examiner and Deputy Coroner for the District of Colum-

bia, testified for Parker. Using photographs and medical

records, Dr. Brownlee did a forensic reconstruction of

the shooting, including in particular the angle of Parker’s

body when Hayes fired the shot which lodged at the

L-2 level in Parker’s spine. Dr. Brownlee testified that

when Hayes fired this shot, Parker’s arms were in a

raised position and tlat the front of Parker’s body was

as visible to Hayes, if not more so, than the rear of

Parker’s body. (Tr. 1304-05.)

The Absence of Supervision, Command and Control

Inspector Edward J. Spurlock, creator and head of the

ROP squad, coneeded that the practice and custom of the

squad was essentially to freelance in the field. Squad

members were encouraged to use their wits. They were

not expected to check with their superiors upon encoun-

tering problems. (Tr. 1633, 1639, 1640.) Spurlock also

testified, as had Hayes, and the District conceded through-

out trial, that ROP members were expected to operate

outside the District of Columbia, where squad members

would roam to make surveillances, gather information or

make arrests. These were not to be ordinary forays. The

ROP squad was intended to target individuals who pur-

portedly were wanted for crimes of violence. The nature

of these “targets” gave to every confrontation a poten-

tial volatility. (Tr. 1597-1600.)

Chief McLaren testified that in these extra-jurisdictional

circumstances, the need for direction, supervision and

control of officers in the field was paramount. Freelanc-

ing is dangerous. McLaren described in detail the norms

that a police department is expected to meet in these

circumstances. Officers must have appropriate levels and

forms of response that are clearly defined and under-

stood well in advance. They must have clear direction

from their superiors and a clear understanding of the

extent and limits of their authority. They must be told

ele |

8

when and how they may “detain” and under what cir-

cumstances they may “arrest.” Precision and clarity are

required to avoid con‘using the officers and to avoid mis-

understanding and confusion on the part of those citizens

whom they confront. (Tr. 672-73, 676-84, 727-31.)

McLaren analyzed the sole written guidance provided

ROP squad members regarding response levels and au-

thority in extra-jurisdictional confrontations: a single,

confusing and poorly written memorandum purporting

to describe authority to arrest in Maryland, plaintiff’s

exhibit 4. Hayes and Motley did not understand it. (Tr.

338-39.) Assistant United States Attorney William Bow-

man conceded that it was “silent” on the key question of

what authority a D.C. officer had to arrest in Maryland

for a felony committed out of his presence (Tr. 1341).

The memorandum was inadequate as a supervisory tool.

It failed to cover extra-jurisdictional “detention” situa-

tions, failed to give instructions on the need to maintain

contact, failed to give a clear explanation of arrest au-

thority, and failed otherwise clearly to delineate the re-

sponsibilities of an officer in the kind of extra-jurisdic-

tional confrontation experienced by Hayes and Motley

on November 15, 1982. Oral instructions were not a sub-

stitute, in McLaren’s view. Only by written guidance

through clear manuals does an officer remember what he

is told. The norm in police practice—the minimum norm

—requires clear and adequate written instructional and

supervisory material. The District failed to meet that

norm as regards extra-jurisdictional arrest and detention

by its ROP squad members. (Tr. 678, 679, 681, 682, 727,

728.)

McLaren’s opinions were illustrated by the very testi-

mony of the officers. Officer Motley admitted that he was

confused about his authority to arrest or detain Parker.

He knew he had “citizen’s arrest powers.” He just did

not know what they were. Nothing in the memorandum,

or any other training guide, helped him. (Tr. 315, 316,

338, 339.) Motley and Hayes simply did not know what

9

to do in the Parker house. They had no command pres-

ence, and they never placed Parker under arrest. So far

as Hayes was concerned, Parker believed he was free to

leave and he was never told not to. (Tr. 1858-60.) By

the same token, however, Hayes and Motley felt con-

strained to follow Parker in menacing and threatening

fashion in an effort to do something. It was an absolutely

contradictory pattern of response, neither fish nor fowl,

in which Parker could not know whether he was detained

or free to go.

Moreover, again in violation of the minimum standards

for command and control of far-flung police intrusions,

neither Hayes nor Motley was ever instructed that, upon

encountering a wanted suspect in a far-flung jurisdic-

tion, even if unexpectedly, he must immediately contact

local authorities in order to utilize their command au-

thority. McLaren testified that these policies and instruc-

tional elements were critical; telephone contact with Dis-

trict of Columbia authorities and with Prince George’s

authorities should have been made as soon as Parker was

identified, from any location nearby. (Tr. 684,731.)

McLaren described the predictable mayhem, the vola-

tility, that such untrained and uncontrolled officers create

when they engage in extra-jurisdictional maneuvers.

They possess no command presence, create uncertainty

and confusion in those whom they attempt to confront,

and are themselves uncertain and confused about their

proper responses. This volatility is engendered by the

“use your wits” credo which the ROP squad substituted

for training, command, and control. It results in the

predictable panic which Parker felt, the uncertainty and

confusion which attended the officers’ responses, and the

unwieldy and ultimately excessive force to which Parker

was subjected. (Tr. 682-84.)

The Absence of Training in Nondeadly

Confrontational Techniques

Both experts testified at length about the inadequate

training which Officer Hayes received in nondeadly tech-

teat ed b

10

niques of disarmament and control.’ Such training was

particularly necessary for a ROP squad officer engaged

in volatile extra-jurisdictional confrontations.

Hayes himself conceded that he received no more than

an hour of training as a police cadet in 1973 in how to

disarm dangerous individuals. In fact, that is all the dis-

armament training he received during the entire 1971-

1978 period. (Tr. 231, 233.) Hayes thought so little of

the training, which was “less than they taught you in the

Air Force,” that he characterized it as “next to nothing.”

(Tr. 231, 233.) After 1978, he received none (Tr. 233-

34). After selection to the ROP squad, he received no

physical training despite the fact that he had spent vir-

tually all of the preceding five years as a radio dis-

patcher (Tr. 228-30). He had been on limited duty be-

cause of a bout with pericarditis in 1977 and a desire to

avoid heavy street duty. Following his admission to the

ROP squad in the spring of 1982, Hayes was not required

to take any refresher physical training. Hayes had been

cited numerous times for being overweight. (Tr. 1624-

25.) On July 16, 1982, he fractured his shoulder. He was

off duty until September. (Tr. 228-30, 257, 1625.) In

this unfit and unprepared condition, Hayes was sent to

Maryland to look for Parker. Spurlock conceded that

he was aware of Hayes’ health problems and general

level of fitness when he selected Hayes to the ROP squad

(Tr. 1623-24).

Assistant United States Attorney Bowman testified

that to his knowledge, physical condition was not a cri-

terion for selection to the ROP squad, but that upon re-

flection perhaps it should have been. He stated, “I

thought that most of the surveillance, frankly, was going

to be by car.” (Tr. 1334.)

McLaren and Bates both testified that the training and

physical preparedness given Hayes by the ROP squad

7 Both had reviewed the training materials provided by the Dis-

trict of Columbia and the depositions of Hayes, Motley and Spur-

lock (Tr. 271, 676).

11

and the Metropolitan Police Department were inade-

quate. McLaren described an array of disarming tactics

that police officers should reasonably be taught. He de-

scribed a variety of methods that police departments rea-

sonably should teach their officers for removing individ-

uals from automobiles. McLaren described those methods

in detail, including a bar-arm lock, a bar-arm lever, and

others. (Tr. 693-94.) These techniques were not taught

Hayes, and Hayes did not try to use them. McLaren fur-

ther testified that the words purportedly spoken by

Hayes, including the word “freeze” were inadequate.

This command and the other command which Hayes as-

serted that he spoke (“don’t do it”) would be understood

differently by a person who was unarmed than one who

was in fact armed. The unarmed person could be ex-

pected to respond as Parker did. Hayes should have

ordered Parker to place his hands so that Hayes could

see them. This is the correct command to avoid confusion.

Nothing in the materials that McLaren reviewed sug-

gested that Hayes or his partner had ever received train-

ing in these principles. (Tr. 695, 696.)

Bates testified to the same effect. Hayes was not jus-

tified in using deadly force against Parker. Hayes had

a substantial size advantage over Parker, and he could

have removed Parker from the vehicle without having to

fire his weapon. (Tr. 281-82.) Bates gave a demonstra-

tion (Tr. 283-84).

Bates also testified that the commands which Hayes

gave were imprecise. The command “don’t do it” is con-

fusing. The normal reaction for any individual who re-

ceived the command that Hayes gave would simply have

been to turn around, which was what Parker did. (Tr.

286.) Bates also made the point that Hayes could have

retreated to take cover behind the automobile, where he

had a clear defensive position (Tr. 295).

Bates testified that any law enforcement program that

complied with commonly-accepted standards in this coun-

try should have taught the particular tactics which he

eee eae aan

12

described. Any acceptable training program should teach

those physical disarming tactics as “continual training.”

(Tr. 282, 285.) °

The Refusal to Retrain or Discipline

Uninvolved officers of the District of Columbia Police

Department conducted an investigation of the shooting.

They reached the same conclusions as Chief McLaren

and Agent Bates.

The investigation was conducted principally by Assist-

ant Police Chief Theodore R. Carr. Assistant Chief Carr

served as Administrative Services Officer. (Tr. 913.) It

was his responsibility to review cases involving police

misconduct, to make findings and to recommend punish-

ment (Tr. 914).

Assistant Chief Carr conducted an official review of

Hayes’ conduct and made written findings (Plaintiff’s

Exhibit 40) :

In the evidence amassed concerning this incident,

including your latest reply to the Notice of Proposed

Adverse Action, you make conflicting statements about

Mr. Parker’s exact position and actions at the time

you fired your revolver. Additionally, you make con-

flicting statements concerning your specific reasons

for utilizing deadly force. In your statement of No-

vember 15th, 1982, you state that you had no clear

view of his hand but that you thought that Parker

was trying to shoot you, the woman, or both. Later,

in the same statement you state that Mr. Parker

was in the process of entering the vehicle when you

fired your first shot and that you fired to protect

Ms. Rainford from being kidnapped. In your most

recent reply, however, you contend that Mr. Parker

8 Petitioner erroneously states that the only alternative that

Agent Bates offered to the use of deadly force was a “choke hold”

of doubtful legality in the District of Columbia. In fact, Bates was

quite clear that there were other physical techniques that Hayes

should have used to subdue Parker without resort to his weapon.

(See, e.g., Tr. 293.) |

13

was fully out of the car when you fired your

revolver at him from a distance of 12 to 18 feet.

Further, you contend that you were towards the rear

of the vehicle, at the end of the car. You contend

that you believed that Mr. Parker was armed due to

his actions and body movements during the incident

and your previous knowledge of his criminal] history.

This claim is inconsistent with the fact that you

allowed the individual to enter his bedroom un-

guarded and to remain there for 15 to 20 minutes.

The facts of this case indicate that you had insuffi-

cient information that Mr. Parker was armed at the

point you utilized your service revolver. If, as you

contend, you were towards the rear of the vehicle,

you could have taken cover behind it. However, as

the evidence indicates that the center post was struck

by one of your rounds, you could not have been

directly behind the vehicle and had to be at some

angle in respect to Mr. Parker, the open door, and

Ms. Rainford.

Additionally, as you contend in your reply that Mr.

Parker was completely out of the vehicle, at that

point he presented no immediate danger to Ms. Rain-

ford. Consequently, with no facts to establish that

Mr. Parker was armed and with Ms. Rainford out

of immediate danger, the utilization of your service

revolver at that instant was unjustified and en-

dangered Ms. Rainford’s life.

Conclusion: This officer concludes that a prepond-

erance of the evidence established that you are guilty

of the charges and specifications as cited in the

Notice of Proposed Adverse Action.

Decision: For the cited violation, you will be fined

three days’ pay, amounting to a monetary fine of

$318.36. The total fine shall be payable in 12 equal

payments of $25 each and one final payment of

$18.36, beginning on or after the pay period begin-

ning June 24th, 1984, and continuing thereafter each

and every pay period until paid in full, provided

that in the event of vour separation from the force,

14

the total amount of the fine then remaining unpaid

shall be retained out of any compensation or allow-

ance due or that may thereafter become due, unless

otherwise ordered by the Chief of Police. In the

event monies are presently being deducted from your

salary as a result of a previously imposed fine, the

above fine shall be added to the outstanding balance

and the current installment shall remain the same.

(Tr. 917-20.)

Assistant Chief Carr then officially notified Spurlock,

the head of the ROP Unit that Hayes should be “recycled

through the firearms training course so that any—so he

ean be refreshed in terms of policies and procedures”

(Tr. 920). Spurlock received the notice. He declined to

have Hayes retrained in any aspect of firearms training

and never sent him to any course. He thought Hayes’

conduct was justified and not inconsistent with ROP

practice and custom. He tried to help Hayes in admin-

istrative proceedings before Assistant Chief Carr. (Tr.

1608, 1609, 1618, 1619.)

Chief of Police Maurice Turner affirmed Assistant

Chief Carr’s factual findings, but he vacated the penalty

(Tr. 921-24). Remarkably, Hayes was neither punished

nor retrained.

The Civil Rights Claim

Petitioner’s request for review urges that the jury

was asked to decide whether the District of Columbia’s

official policy on the use of deadly force caused a con-

stitutional violation. That is not true. The District’s

official policy with regard to the use of deadly force was

never the basis of Parker’s constitutional claim under

42 U.S.C. § 1983. Compare Tennessee v. Garner, 471 U.S.

1 (1985).

The essence of Parker’s civil rights claim was rather

that the District deliberately or recklessly pursued a

broad course of conduct that resulted in the deprivation

0D EE eee

15

of his constitutional rights. That course of conduct in-

cluded (1) the creation of a squad of officers with a

mission to engage in high volatility confrontations out-

side the borders of the District of Columbia, while armed

and while seeking out purportedly dangerous persons;

(2) advising officers to confront these situations by free-

lancing their way through them, without any significant

command and control from central authorities, without

local police presence, without contact with senior per-

sonnel, without clear instructions on when “arrests” were

permissible, when investigative “detention” was permis-

sible, or when neither was appropriate, without instruc-

tion as to the value and need for command presence, and

without other guidance normally attending significant

police operations in far-flung areas; (3) failing to select

and train officers physically fit for the anticipated vola-

tile confrontations and physically able to respond by the

use of nondeadly force where such techniques are appro-

priate; and (4) failing thereafter to retrain or discipline

(and indeed praising) an officer found to have wrongly

utilized deadly force in one such extra-jurisdictional con-

frontation—the shooting of Parker.

This conduct reflected deliberate indifference in the

extreme by the District of Columbia to the risk of con-

stitutional harm—the unreasonable use of deadly force

to finish off a predictably volatile and confusing extra-

jurisdictional confrontation between an uncertain and

unguided ROP officer and a confused and panicked citi-

zen. It was the clear moving force behind Parker’s injury.

The District moved for a directed verdict after Parker

rested and again at the end of its defense. With regard

to Parker’s constitutional claim, it argued that the evi-

dence was not sufficient to establish gross negligence and

causation. Both motions were denied.

® Parker alleged deprivation of rights secured to him by the

Fourth, Fifth, Eighth and Fourteenth Amendments to the Constitu-

tion and by 42 U.S.C. § 1983. Amended Complaint at { 1.

Se

16

The Jury Instructions

The jury was instructed rigorously and at length re-

garding the elements of Parker’s civil rights claim (Tr.

2220-23). Those instructions included the following

language:

First, in order to find for Don Parker on this issue,

you would have to find that Mr. Parker proved by a

preponderance of the evidence that the training,

supervision and discipline program of the metropoli-

tan police department was inadequate and that the

alleged inadequacy of the training, supervision, and

discipline program resulted from the selected policy

or custom of the District of Columbia policymakers.

To find for Mr. Parker, you would have to further

find that if there were a policy or custom of the

District of Columbia which resulted in inadequate

training, supervision or discipline, that there was a

constitutional violation of Mr. Parker’s civil rights

and that there was a link, that is, a causal connec-

tion between the policy or custom concerning the

training, supervision and discipline and the consti-

tutional civil right of which he contends he was

deprived.

Policy in this context shall be defined as a definite

course or method of action selected from among al-

ternatives and in the light of conditions to guide and

determine present and future decisions.

The burden is on the plaintiff, Don Parker, to

establish by a preponderance of the evidence that the

District of Columbia failed adequately to train, su-

pervise and discipline Officers Hayes and Motley and

that this failure constitutes gross recklessness and

gross indifference to the civil rights of Mr. Parker in

that such inadequate training, supervision, and disci-

pline would involve a risk of harm to others.

The burden is on the plaintiff, Don Parker, to

establish by a preponderance of the evidence that as

a result of the inadequate training, instruction and

discipline as alleged, Mr. Parker was deprived of his

17

civil rights without due process of law, specifically as

a result of the unnecessary and unreasonable use of

force by Officer Hayes. At the very least, there must

be an affirmative link between the policy and the

particular constitutional violation alleged. The policy

must be the moving force behind the alleged constitu-

tional violation.

Proof of a single incident of unconstitutional ac-

tivity is not sufficient to impose liability on the Dis-

trict of Columbia unless proof of the incident in-

cludes proof that it was caused by an existing uncon-

stitutional District of Columbia policy or custom

which policy or custom can be attributed to a District

of Columbia policymaker.

(Tr. 2221-23.)

The Jury Verdict

The jury specifically found “that the District of Co-

lumbia had a policy, custom or practice which directly

resulted in the deprivation of Don Parker’s constitutional

right without due process of law.” It awarded Parker

$425,046.67 in damages for the District’s violation of 42

U.S.C. 1983. (Tr. 2248-49.) The jury found in favor of

the District on Parker’s assault and battery claim (Tr.

2248).

The District’s motion for judgment notwithstanding

the verdict was denied in a reasoned and lengthy opinion

(App. 44a-60a).

Affirmance by the Court of Appeals

The District appealed. It again challenged the suffi-

ciency of the evidence as to its conduct and the nexus be-

tween that conduct and Parker’s injury. The District

abandoned on appeal any argument that Inspector Spur-

lock and Chief Turner were not policymakers and that

inadequate training of police officers cannot constitute

a policy, practice, or custom under Monell v. Department

of Social Services of the City of New York, 436 U.S. 658

(1978). Instead, it argued that the evidence was not

sufficient to establish inadequacies in training, discipline,

EEE

VV

18

or supervision and that any such deficiences were not

the cause of Parker’s injuries.

The Court of Appeals affirmed the judgment of the

district court essentially because it found “ample evidence

in the record” to support the jury’s finding that the Dis-

trict had a policy, custom, or practice that directly re-

sulted in the deprivation of Parker’s constitutional rights

without due process of law (App. 8a). The majority

further noted that “[o]ur colleague’s dissent is primarily

based on his own interpretation of the facts, which is

contrary to that of the jury” (App. 5a).

The Court of Appeals held, for two reasons, that re-

versal was not warranted by the trial court’s decision not

to charge the jury regarding use of deadly force to pre-

vent flight with language purportedly excerpted from

Tennessee v. Garner. First, it correctly discerned that

“fw]hat the District’s o,ficial policy consists of is not the

issue here and is not properly the basis of a jury charge”

(App. 13a) (emphasis in original). Second, the Court

determined that the District had failed to preserve an

objection on the issue (App. 13a-14a).

REASONS FOR DENYING THE WRIT

I. The Court of Appeals Correctly Affirmed the District

Court’s Refusal to Instruct the Jury That a Police

Officer May Use Deadly Force to Apprehend a Person

Suspected of a Violent Crime Because (a) the Issue

Was Not Presented By the Evidence and (b) the In-

struction Requested Did Not Accurately Reflect the

Holding of Tennessee v. Garner

Petitioner seeks review of the Court of Appeals’ affirm-

ance of the district court’s refusal to give an instruction

containing the following language:

It is also constitutional for an officer to use deadly

force in apprehending a suspect if there is probable

cause to believe that the suspect has committed a

crime involving the infliction or threatened infliction

of serious physical harm if, where feasible, some

warning has been given.

19

(Petition at 9 n.5.) It urges that failure to give this in-

struction constitutes reversible error because the Court

failed to advise the jury of the full range of occasions

upon which an officer may constitutionally use deadly

force against an unarmed citizen, relying particularly

upon this Court’s decision in Garner.

We demonstrate below that the Court of Appeals’ de-

cision represents no departure from Garner. The district

court correctly declined to instruct the jury in the lan-

guage requested because (1) the evidence presented no

basis for a conclusion that force was necessary to prevent

flight, and (2) the instruction would have incorrectly

told the jury that Hayes was justified in shooting Parker

merely because he was suspected of a crime of violence,

regardless of whether Hayes’ use of force was necessary

to protect his own life or that of another. In Part II, we

demonstrate that the Court of Appeals correctly held

that petitioner had not preserved the issue for review.

In Garner, this Court “determine[d] the constitutional-

ity of the use of deadly force to prevent the escape of an

apparently unarmed suspected felon.” 471 U.S. at 3.

This Court there held that “such force may not be used

unless it is necessary to prevent the escape and the officer

has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to

the officer or others.” Jd. (emphasis added)

The petitioner seeks to invoke Garner here by stating, -

“The shooting occurred after Parker, who had stated that

he would accompany Officer Hayes and his partner to the

police station, decided to flee” (Petition at 2). This sen-

tence misleadingly suggests that Parker was shot while

fleeing. In fact, as Hayes testified, Parker was standing

still, a few feet away, between Hayes and a parked ve-

hicle, when Hayes shot him. Parker was not fleeing

(Tr. 199.) Hayes said he shot Parker because he was

afraid Parker would shoot him; he never said he shot

to prevent flight. (Tr. 204-05, 213-14, 218.); see also

Findings of Assistant Chief Carr, reprinted supra pp.

20

12-14.) Hayes never told Parker he was under arrest

nor invoked any authority to order him to halt (Tr.

1858-60).

The District conceded this point in its argument in

support of its motion for directed verdict. Its counsel

said:

We would submit that there is not—with regard to

the question of whether flight is an issue in our de-

fense and our motion here, we would submit that Of-

ficer Hayes was not at that time shooting a fleeing

felon. There was no intention on the part of the po-

lice officers to shoot Mr. Parker as a fleeing felon at

any time.

(Tr. at 1488-89).'° Consistently, later when the Dis-

trict’s Inspector Edward Spurlock, head and founder of

the ROP unit, testified that “we firmly believe that we

should stop fleeing felons in certain situations,” counsel

for the District told the judge: “That [testimony] was

not my expectation. I will not go further on the fleeing

felon.” (Tr. 1515.)

The trial court was justified in declining to give a

“fleeing felon” instruction, half-heartedly requested at

the end of the trial, because the District had deliberately

shaped its evidence and tried its case on the theory that

Hayes believed Parker was about to shoot him. Having

explicitly declined reliance on the need to prevent escape,

the District could hardly urge an instruction on that

theory.

The supposed “Garner” instruction tendered by the

District, would have been a manifestly incorrect state-

10 The District and Parker were in agreement on this point. Plain-

tiff’s counsel had said earlier in opposing the motion for directed

verdict: “And it is not Officer Hayes’ contention, has not been to

this point, that Mr. Parker was about to flee when he shot. This

is not a case in which the court is going to be asked to decide the

parameters of the fleeing felon rule either for the District of Colum-

bia or the State of Maryland.” (Tr. 1478.)

21

ment of the law in any event.'"' It is not correct, as the

proposed instruction stated, that if Hayes knew Parker

was suspected of a violent crime, Hayes could constitu-

tionally have shot him after a warning. It is the need

to prevent flight which justifies shooting an unarmed

suspect of a violent crime. The proposed instruction did

not require that the shooting be “to prevent escape,” the

evidence did not support it, and refusal to give the in-

struction was correct.

Petitioner argues that it presented evidence of an offi-

cial policy that “permits the use of deadly force only in

the most extraordinary of circumstances,” See Petition

at 5, and that a Garner type instruction was necessary

to correct a misimpression Chief McLaren created that

police may never shoot unless they see a gun. The Court

of Appeals understood, however, that Parker did not

challenge the official policy:

The jury was charged with evaluating the adequacy

of District police training, supervision and discipline

with regard to the use of deadly weapons rather

than investigating the official weapons policy of Of-

ficer Hayes and the District. The jury arrived at its

verdict upon a consideration of the actual customs

and policies of the ROP. For this reason, we deem

11 The District’s proposed instruction appears to have been de-

rived from the following language of this Court’s decision in

Garner:

Where the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the officer or

others, it is not constitutionally unreasonable to prevent escape

by using deadly force. Thus, if the suspect threatens the officer

with a weapon or there is probable cause to believe that he

has committed a crime involving the infliction or threatened

infliction of serious physical harm, deadly force may be used

if necessary to prevent escape, and if, where feasible, some

warning has been given.

471 U.S. at 11-12. As the Court can readily see, the District

omitted from its proposed instruction, reprinted supra p. 18,

important language that is intrinsic to the meaning and holding of

Garner, specifically the words “to prevent escape.”

22

Judge Green’s instructions on the use of excessive

force, although not comprehensive, to be sufficient to

convey the law of this fact-bound case.

(App. 13a.)

The jury was entitled to look beyond the words of the

District’s official pronouncements. The fact that the Dis-

trict had articulated a policy does not mean that it had

implemented it (or done se effectively).’* The jury was

entitled to believe, on the basis of the evidence presented

by plaintiff, that it had not.

The Court of Appeals correctly concluded that the in-

structions given conveyed the law concerning excessive

force applicable to both Parker’s common law and con-

stitutional claims (App. 13a, 14a.) Those instructions,

12 See Kibbe v. City of Springfield, 777 F.2d 801, 808 (1st Cir.

1985) (“If the department recognized the importance of pursuing

alternatives to deadly force, as [its] rule indicates, and yet failed

to train on any alternative methods of stopping the suspect in a

high-speed pursuit, a jury properly could draw the inference that

the department made a conscious policy decision not to do such

training.” ), cert. dismissed, 480 U.S. 257 (1987).

13 As noted by the Fifth Circuit, “An injured plaintiff is not

likely to document proof of a policy or disposition, either of the

policymaker or throughout the police force, that disregards human

life and safety. The disposition must be inferred circumstantially

from conduct of the officers and of the policymaker.” Grandstaff

v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985), cert. denied,

480 U.S. 916 (1987). The District of Columbia Circuit has recog-

nized that “[p]Jolice misconduct cases such as this one . . . do not

involve express statements of policy . . . To succeed, a plaintiff

must show a course deliberately pursued by the city ...” Carter

v. District of Columbia, 795 F.2d 116, 122 (D.C. Cir. 1986).

Moreover, a policy that is not itself unconstitutional may, none-

theless, provide the basis for municipal liability under Section 1983.

Fiacco v. City of Rensselaer, 783 F.2d 319, 327 (2d Cir. 1986),

(relying on plurality opinion in City of Oklahoma City v. Tuttle,

471 U.S. 808 (1985) ), cert. denied, 480 U.S. 922 (1987). In Fiacco,

the court rejected the argument that “a municipal policy that is

not itself unconstitutional but that merely permits or tolerates

unconstitutional acts by city employees cannot be the basis for

municipal liability under § 1983.” 783 F.2d at 326.

23

which were never assigned as error by the District, cor-

rectly stated the reasonableness standard articulated by

Garner (Tr. 2219-20, 2222-23) .™*

McLaren did not testify to any different standard. He

testified that, in his opinion, Officer Hayes’ use of deadly

force was not reasonable under the circumstances because

there was no immediate threat against Officer Hayes’ life

or against the life of the driver in the car. (Tr. 691.)

His views on the question, like Lieutenant Carr’s, were

substantially affected by the fact that Hayes never saw

a weapon (Tr. 691-92, 919). The District’s expert wit-

ness, Glen R. Murphy, on the other hand, testified that

Hayes’ use of deadly force was reasonable, not to prevent

flight but to prevent harm under the circumstances, and

that it was not necessary for Hayes to see a weapon

before shooting Parker (Tr. 1934).

The trial court clearly instructed the jury on the

manner by which to evaluate the conflicting testimony

of these experts on the issue (Tr. 2216), and the jury

did so. Petitioner’s contention that the district court

should have told the jury Hayes could shoot Parker be-

cause he was wanted for a crime of violence is a gross

misconstruction of the constitutional principle articulated

in Garner and deserves no further consideration.

II. The Garner Instruction Issue Was Not Preserved and

the Court of Appeals’ Application of Federal Rule of

Civil Procedure 51 Does Not Warrant Review

The Court of Appeals panel correctly held that peti-

tioner failed to preserve an objection to the trial court’s

refusal to give an instruction supposedly based on Garner

(App. 13a). The Court of Appeals’ conclusion is entirely

consistent with the clear directive of Rule 51:

14 The trial court properly instructed the jury that Parker had

to prove Hayes’ use of deadly force was unreasonable in order to

prevail on his Section 1983 claim. (Tr. 2223, reprinted supra at

16-17.) Compare City of Los Angeles v. Heller, 475 U.S. 796 (1986).

24

No party may assign as error the giving or the fail-

ure to give an instruction unless the party objects

thereto before the jury retires to consider its ver-

dict, stating distinctly the matter objected to and

the grounds of the objection.

Fed.R.Civ.P. 51. The District did not object, either spe-

cifically or generally, to Judge Green’s refusal to give

its proposed instruction before the jury retired to con-

sider its verdict. Nor did it assign it as a basis for re-

versal in the Court of Appeals.

Indeed, the District thought so little of this argument

that it did not raise the issue on appeal. See Statement

of Issues Presented for Review in Brief for Appellants

at 1-2, reprinted in Appendix hereto. The first time it

mentioned the denial of the proposed “Garner’’ instruc-

tion was in a footnote in its Reply Brief. Even then, how-

ever, the District did not assign it as a basis for error.

Only after Judge Williams dissented in the Court of

Appeals, in part on the ground that “the Garner error

calls for reversal”, did the District elevate the denial of

its proposed instruction to an issue requiring review.

The District suggests that it attempted to repeat an

objection to the Court’s refusal of its “Garner” instruc-

tion before the jury retired but was prevented from

doing so by the district judge. The District did attempt

“to reiterate an objection” after the jury was instructed,

but that objection had nothing to do with Garner. See

Petition at 10. The objection counsel for the District

then sought to make was “with regard to the adminis-

trative rulings,” a reference to the internal disciplinary

proceeding against Officer Hayes by the metropolitan po-

lice department. (Tr. 2230-31.)

Counsel’s comments, made during the in-chambers dis-

cussion of jury instructions before the jury was

charged,’* did not rise to the level of an objection within

15 Counsel for the District had made no mention whatsoever of

her proposed “Garner” instruction at the previous in-chambers con-

ference on jury instructions (Tr. 2070-80).

25

the meaning of Rule 51. During the pre-charge confer-

ence, counsel suggested, notwithstanding the absence of

evidence that Hayes shot Parker to prevent flight, that

the District would like the jury to be told of the Garner

“fleeing felon” principle.

And I would suggest that the court consider adding

somewhere in that portion of the instructions at

least the second paragraph of our proposed instruc-

tion no. 4, and would ask that you do so in particu-

lar light of counsel’s arguments yesterday giving

an erroneous statement of the law to the jury with

regard to Tennessee v. Garner. I think it’s impor-

tant, in light of these instructions, that the jury

know that it would not be unconstitutional for a

police officer to shoot a fleeing felon, or to shoot

somebody—to apprehend somebody. And I think

that that’s a significant factor. I think the language

is too vague as to what in fact the constitutional

violation is. And we would submit that on those

bases, at least, the instruction is not satisfactory.

And if the court would consider paragraph 4, we

would appreciate that.

(Tr. 2196.) A request to give an instruction is not

equivalent to an objection to a refusal to give an instruc-

tion. Johnson v. Houser, 704 F.2d 1049, 1051 (8th Cir.

1983).

Moreover, a judge’s comments, such as “that will make

an interesting appeal,” do not preserve an issue for ap-

peal. See Dunn v. St. Louis-San Francisco Ry. Co., 370

F.2d 681, 684 (10th Cir. 1966) (“[w]le warn counsel

that even if the district court acquiesces in a procedure

which is insufficient, a party may find that his rights

have not been preserved’’).

The Court of Appeals’ faithful application of Rule 51

in this case does not warrant review. Appellate court

decisions construing Rule 51 demonstrate that whether

an issue is preserved for appeal is necessarily fact-

intensive and specific to the circumstances of each case.

See, e.g., Fischer v. Dallas Federal Sav. and Loan Ass’n.,

26

835 F.2d 567, 569-70 (5th Cir. 1988) (failure to object

to charge before jury retired baired consideration of the

issue on appeal); Murphy v. Owens-Illinois, Inc., 779

F.2d 340, 345-46 (6th Cir. 1985) (error not preserved

for appeal where counsel objected to instruction in pre-

charge conference but not after the jury was charged) ;

Spanish Action Committee of Chicago v. City of Chicago,

766 F.2d 315, 318-19 (7th Cir. 1985) (objection to orig-

inal proposed instruction did not constitute timely objec-

tion to amended instruction under Rule 51); Klapmeier

v. Telecheck International, Inc., 482 F.2d 247, 255 (8th

Cir. 1973) (appellants were required under Rule 51 to

object to instruction after jury was charged in order to

preserve error, even though trial court had denied ap-

pellants’ requested instruction); United States v.

Heyward-Robinson Co., 430 F.2d 1077, 1083-85 (2d Cir.

1970) (appellants’ failure to object to five of seven

claimed errors in charge before jury retired precluded

raising them on appeal), cert. denied, 400 U.S. 1021

(1971); See also Dunn v. St. Louis-San Francisco Ry.

Co., 370 F.2d at 684 (requiring strict compliance with

Rule 51).

III. The Court of Appeals’ Decision Is Entirely Consistent

With This Court’s Decisions in Monell v. Department

of Social Services of the City of New York, City of

Oklahoma City v. Tuttle, and Pembaur v. City of Cin-

cinnati, and Presents No Issue Requiring Determina-

tion By This Court

In the trial court, in the Court of Appeals, and even

now, petitioner concedes that this Court’s decisions in

Monell and Tuttle concerning municipal liability under

42 U.S.C. $1983 govern this case. As reflected in the

jury instructions, the district judge was painstaking in

her adherence to and invocation of these decisions (see

also Tr. 2070-89, 2190-97). The instructions accurately

reflect the governing law and did not, as petitioner con-

tends, “permit liability to be imposed on a constitution-

ally untenable theory.” See Petition at 20.

27

Petitioner has not challenged those instructions on ap-

peal. It does not, therefore, ask this Court to impose

here a standard greater than the one to which it agreed

below. Cf. City of Springfield v. Kibbe, 480 U.S. 257,

——, 107 S.Ct. 1114, 1115 (1987) (This Court “ordi-

narily will not decide questions not raised or litigated

in the lower courts,” and this general rule “has special

force where the party seeking to argue the issue has

failed to object to a jury instruction.”’)

Although presented as a criticism of the Court of Ap-

peals’ analysis and “rulings,” the final question for which

the petition seeks review is actually a challenge to the

sufficiency of the evidence. The sufficiency of that evi-

dence has been examined four times—twice by the trial

judge in ruling upon the motions for directed verdict,

once by the trial judge in ruling on the motion for judg-

ment notwithstanding the verdict, and again by the

Court of Appeals. The general rule of this Court is “we

do not grant a certiorari to review evidence and discuss

specific facts.” United States v. Johnston, 268 U.S. 220,

227 (1925); Torres-Valencia v. United States, 464 U.S.

44, 45 (1983) (Rehnquist, J., dissenting).

This case does not present any issue important to this

Court’s determination of the parameters of municipal

liability under 42 U.S.C. § 1983. The District of Co-

lumbia was not held liable for Parker’s injuries under

an impermissible theory of respondeat superior. See

Monell, 436 U.S. at 691. The jury was not permitted to

find liability for inadequate training based upon one iso-

lated incident of police misconduct. Cf. Tuttle, 471 U.S.

at 823-24. As noted by the Court of Appeals,

“Tujnlike Tuttle, this case does not involve a single

incident that gives rise to an inference of inadequate

training. It involves a sad series of mishaps linked

to a policy of sorely deficient training, supervision

and discipline.”

(App. 6a.) The jury was not allowed to find the city

liable for mere negligence, but was required to apply a

much higher standard. Cf. Kibbe, 480 U.S. at 257. The

burden of proof was not shifted to the District to prove

the adequacy of its training, but was placed firmly upon

Parker to prove that the District’s failures constituted

gross recklessness and gross indifference to his civil

rights. Cf. Harris v. Cmich, No. 85-3314, slip op. at 6

(6th Cir. July 2, 1986), cert. granted sub nom. City of

Canton v. Harris, 108 S.Ct. 1105 (1988). In sum, this

case does not present any significant question of public

import under 42 U.S.C. § 1983 requiring intervention or

clarification by the Supreme Court.

There is not a serious question as to whether Parker

demonstrated municipal responsibility for the conduct

which caused his injuries."* This case is controlled on the

facts by Pembaur v. City of Cincinnati, 475 U.S. 469,

106 S.Ct. 1292 (1986), a decision not referred to in the

petition. In that case, this Court upheld the liability of

a county for an illegal search conducted by police offi-

cers acting under instructions from the sheriff and

county prosecutor, and explained why the result was con-

sistent with Monell. “Monell,” it said, “is a case about

responsibility.” 475 U.S. at ——, 106 S.Ct. at 1297. The

core of the Monell/Tuttle analysis is that plaintiffs must

demonstrate conduct by the municipality, and not merely

by its employees, “and thereby make clear that municipal

liability is limited to action for which the municipality

is actually responsible.” Pembaur, 475 U.S. at ——, 106

S.Ct. at 1298.

Municipal responsibility is precisely what Parker

proved. His injuries were caused, as in Pembaur, not by

a low-level decision by a desk officer or street policeman

on routine patrol. They were caused by conduct which

was the deliberate and conscious choice of police depart-

16 The jury was properly instructed with both the language “mov-

ing force” and “affirmative link.” See Monell, 486 U.S. at 694;

Tuttle, 471 U.S. at 823. Causation is an issue of fact for the jury’s

determination. See Morgan v. District of Columbia, 824 F.2d 1049,

1063 (D.C. Cir. 1987).

ment officials actively making policy for the District

of Columbia. Although Officer Hayes’ hand was on the

gun, the District of Columbia was just as responsible for

Parker’s injuries as if those officials had ordered Hayes

to shoot. The uncontested evidence presented at trial was

that Chief Turner gave Inspector Spurlock full authority

to organize, design, and set policy for the ROP squad.

Inspector Spurlock proudly took responsibility and credit

for the unit and for the Parker shooting in particular.

(Tr. 1620-22.)

Respondent is aware that this Court has granted cer-

tiorari, without opinion, and heard argument in City of

Canton v. Harris, No. 86-1088. See City of Canton v.

Harris, 108 S.Ct. 1105 (1988) (granting petition for

writ of certiorari). The successful petition in that case

raises the question whether inadequate training can be a

“policy or custom” of a city within the meaning of

Monell, without independent evidence that the city knew

or should have known that the training was inadequate

and therefore that violations of constitutional rights

might foreseeably result from any inadequate training.

Petition for Writ of Certiorari, City of Canton v. Harris,

No. 86-1088 (U.S., filed Jan. 2, 1987). Although it in-

volves inadequate training, Harris is very different from

this case. The City of Canton was held liable under 42

U.S.C. § 1983, for the actions of the admitting officer of

the city’s jail, who had discretionary authority to ar-

range for special medical care for an arrestee, but who

did not receive specialized medical training to detect po-

tential mental illness in an arrestee. That one, rather

narrow failure of a municipality to train does not ap-

proach the magnitude or seriousness of the conduct of

the District of Columbia in this case.

Respondent does not believe that this case would be

decided differently even if the Court resolved the issue in

1T Petitioner did not contest on appeal that Parker had proved in-

volvement of “policymakers” for purposes of § 1983.

EE ooo

30

favor of the petitioner in Harris. For reasons already

described, the evidence in this case demonstrated munici-

pal responsibility far more egregious than a mere failure

to train. We respectfully disagree, therefore, that this

case should be held pending decision in Harris.

CONCLUSION

This Court should deny the petition for writ of cer-

tiorari.

Respectfully submitted,

WILLIAM W. TAYLOR, III *

ROGER E. ZUCKERMAN

CHRISTINE NICHOLSON

BLAIR G. BROWN

ZUCKERMAN, SPAEDER, GOLDSTEIN,

TAYLOR & KOLKER

1201 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 778-1800

Counsel for Respondent

* Counsel of Record

APPENDIX

la

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-7039

DON R. PARKER, et al.,

Appellees,

v.

WILLIAM HAYES, et al.,

Appellants.

On Appeal from the United States District Court

for the District of Columbia

BRIEF FOR APPELLANTS

STATEMENT OF ISSUES PRESENTED FOR REVIEW

Under Monell v. Department of Social Services of the

City of New York, 436 U.S. 658 (1978), a municipality

may be held liable pursuant to 42 U.S.C. section 1983

only if it establishes a “policy” or “custom” that “causes”

a person’s constitutional rights to be violated. In this

ease, the District of Columbia was held liable under

Monell for injuries suffered by a suspected felon who was

shot by a District police officer in Maryland after he

attempted to “hijack” a passerby’s automobile with the

2a

driver inside and after it appeared that he was reaching

for a weapon.

The issues presented for review are:

I. Whether the failure of the police officer to arrest

the suspected felon before his attempt to “hijack” the

automobile, even if pursuant to an inadequate District

training program, can constitute a District policy or cus-

tom that caused a violation of the suspected felon’s con-

stitutional rights?

II. Whether the District may be held liable for in-

juries stemming from the shooting because it did not

have a policy that prohibited its police officers from us-

ing deadly force unless and until they see a weapon, even

though the District’s policy on the use of deadly force

satisfies constitutional requirements?

III. Whether the District can be held liable for in-

juries stemming from the shooting on a theory of inade-

quate training in alternative methods to the use of deadly

force, when the plaintiff did not even attempt to estab-

lish what the District’s training program was and when

the plaintiff failed to establish that the District’s train-

ing program was grossly negligent or even negligent in

the case of the police officer who fired the shot?