# Appendix — Jefferson County v. Hays

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0145%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 833

## Text

la

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Nos. 80-3010, 80-3011

Dox al L. Hays, In., and
Micnanxl, C. Porren, - - Plaiatiſs-Appellees,
Cross-A ppellants,

v.
Jerrerson County, Kentucky,

Wusvr Burzu and
Russet McDanmu - =- ~- #£Defendants-Appellants,

Cross-A ppellees.

Argued October 21, 1980
Decided January 4, 1982

Before Merritt and Jones, Cireuit Judges, and Gmsox,“
District Judge.

This civil rights case arose from a violent altercation
between police and demonstrators on the night of Septem-
ber 26, 1975, at Bittersweet Shopping Center in southwest-
ern Jefferson County, Kentucky. The final jr zment below
awarded plaintiff Hays compensatory damages of $20,000
against Jefferson County, and $5,000 each against Col.
Russell McDaniel and Major Wilbur Bilyeu. Plaintiff
Potter was awarded compensatory damages of $2,000
against Jefferson County, and $500 each against McDaniel
and Bilyeu. Jefferson County was further ordered to pay
$20,000 to counsel for plaintiffs as attorneys fees.

*The Honorable Benjamin F. Gibson, Judge, United States
Distriet Court for the Western District of Michigan, sitting by
designation.

2a

The court below, on a motion for judgment notwith-
standing the verdict, remitted the jury’s award of punitive
damages to plaintiff Hays of $81,000 against Jefferson
County and $9,000 against Bilyeu. The award of punitive
damages to plaintiff Potter of $9,000 against Jefferson
County and $1,000 against Bilyeu was also remitted.

The Bittersweet Shopping Center is across from South-
ern High School. The September 26, 1975 demonstration
was one of many that took place during the preceding weeks
to protest court ordered busing for school desegregation,
which had been implemented on September 4, 1975 with the
beginning of the school year. The demonstrations occurred
at sites throughout Jefferson County and in downtown
Louisville as well as the Bittersweet Center. Many of these

The September 26th demonstration at Bittersweet began
uneventfully. Later, a fire was built in the front of the
parking lot, adjacent to Preston Highway. Although
originally contained, the fire grew over time. The crowd
also grew as the day progressed from about 50 to 75 peo-
ple in the morning to approximately 300 to 500 people by
late in the evening. At about 7:30 or 8:00 p.m. defendant
Bilyeu made a determination that the fire was becoming
dangerous and should be extinguished. He called in rein-
forcements and within a few minutes 40 to 50 police officers
arrived. With the presence of these policemen the crowd
became agitated. After consulting with some of the leaders
of the demonstration Major Bilyeu sent them away and
called the fire department. When the firemen arrived,
however, a small group of demonstrators prevented them
from putting the fire out. At this time Major Bilyeu de-
cided that the crowd was out of control and had to be
dispersed. He sent the firemen away and recalled the

3a

police. The police assembled in the Southern High School
parking lot and prepared to disperse the crowd.

The descriptions of various witnesses as to what oc-
curred shortly before A at the time the police entered
the Bittersweet parking lot were conflicting. There was
conflicting testimony as to the number of warnings to dis-
perse given to the crowd, the number of demonstrators
that were still at the scene at the time the police entered
the parking lot, the amount of tear gas used, and what the
crowd was doing. N

After the warnings to disperse, tear gas was fired into
the crowd. Within 15 to 30 seconds the police crossed the
street and entered the crowd. The police began their ad-
vance toward the crowd before Major Bilyeu ordered them
to do so. He attemtped to stop them with the repeated
bullhorn command “don’t cross the street.” When this
proved ineffective, however, he took no further action to
control them.

Plaintiffs’ witnesses from all areas of the Bittersweet
Shopping Center testified to widespread damage to vehicles
caused by police officers. There was even some police
testimony as to property damage caused by police. Nor
was the police violence confined to property. Several wit-
nesses testified to seeing police officers striking demon-
strators and passersby with their riot sticks and pushing
and kicking some of them.

The police were all wearing blue jumpsuits,~ gloves,
helmets and gas masks. Many witnesses testified to an
inability to identify any individual police officer although
they attempted to do so. Defendants admit that identifica-
tion patches had not been sewn onto the jumpsuits, at least
in part because the suits had been obtained only a short time
before this incident. There was considerable testimony
that the vast majority of the officers were not wearing their
nametags on the jumpsuits, A Jefferson County Police

4a

Department lieutenant testified that probably 90 percent
of the police officers had no identification tags on.
During the course of the violence that evening plaintiff
Potter was struck across the knuckles and repeatedly on
the back and shoulders by a group of unidentified police
officers. Plaintiff Mays was severely beaten and kicked
into a grand mal seizure and unconsciousness by another
group of five of six unidentified officers. They were also
subjected to considerable verbal abuse. Both men were
taken to the hospital where Potter was treated and re-
leased. Hays spent appro imately ten days in the hos-
pital. Each of the plaintiffs had been taking part in the
demonstration and had taken part im others previously.
Neither had had any difficulty at any other demonstration,
nor was either arrested or charged with a crime for their
activities at the Bittersweet Shopping Center.

II, 2] The defendants in this action are the county
and the chief and deputy chief of the county police depart-
ment. Plaintiff's theory of liability was based on the de-
fendants’ negligent training, supervision, and control of the
unidentified officers. The trial court’s instructions were
based on a simple negligence standard.“ Because this Court

1The trial court stated that the action as based on ‘‘the alleged
negligent acts or omiasions’’ of the defendants (Tr. Vol. IX, at 49),
that the ‘‘burden of the proof is on the plaintiffs to establish by a
preponderance of the evidence that the negligence of one or both of
the officials’ caused the damages (id.), and that Chief McDaniel
and Assistant Chief Bilyeu or either of them negligently super-
vised, trained or controlled the police officers under their com-
mand at Bittersweet Shopping Center and that such negligence’
eaused the injuries (id. at 50) (emphasis added).

The instructions defined the term negligence as follows :

You are further instructed that negligence is lack of ordinary
care, It’s the failure to exercise the degree of care which a

(Footnote continued on following page)

50

holds that simple negligence is insufficient to support lia-
bility of high police officials and municipalities for in-
adequate training, supervision, and control of individual
officers, we must vacate the verdict and remand this matter
to the District Court for a new trial.

The question of whether simple negligence is sufficient
to support a civil rights action for the violation of consti-
tutional rights, either under 42 U.S. C. § 1983 or directly
under the constitution with jurisdiction based on 28 U.S.C.
§ 1331, has been troublesome to the bench and bar for some
time. In Baker v. McCollan, 443 U. S. 137, 99 S. Ct. 2689,
61 L. Ed. 2d 433 (1979), Mr. Justice Rehnquist, writing
for the majority of the Supreme Court, said [Whether

(Footnote continued from preceding page)
reasonably prudent person would have exercised under the
same circumstances. It may arise from doing an act which a

reasonably prudent person would not have done under the
same circumstances or, on the other hand, for failing to do an
act which a reasonably prudent person would have done under

A person is not responsible for the consequences of his con-

Conversely, there is negligence if a reasonably prudent per-
conduct was unreasonable in the light of what he could fore
care

Tr. Vol. IX, at 51-52.

6a

an allegation of simple negligence is sufficient to state a
cause of action under § 1983 is more elusive than it ap-
pears at first blush. It may well not be susceptible of a
uniform answer across the entire spectrum of conceivable
constitutional violations which might be the subject of a
§ 1983 action.” Id. at 139-40, 99 S. Ct. at 2692. S. eral
of the lower federal courts have addressed the question
in various contexts with seemingly varying results.

[3] The law is clear that liabi ty of supervisory per-
sonnel must be based on more than merely the right to con-
trol employees. Without more, such a theory would allow
liability on a respondeat superior basis—a basis expressly
rejected by the Supreme Court in Monell v. Department of
Social Services, 436 U. S. 658, 98 8. Ct. 2018, 56 L. Ed. 2d
611 (1978) under § 1983, and by this court in Jones v. City
of Memphis, 586 F. 2d 622 (6th Cir. 1978) in a direct con-
stitutional action pursued in accordance with the case of
Bivens v. Sia Unknown Named Agents, 403 U. S. 388, 91
S. Ct. 1999, 29 L. Ed. 2d 619 (1971). Specifically, the
Supreme Court in Monell stated: “By our decision in Rizzo
v. Goode, 423 U. S. 362, 96 8. Ct. 598, 46 L. Ed. 2d 561
(1976), we would appear to have decided that the mere right
to control without any control or direction having been
exercised and without and failure to supervise is not
enough to support § 1983 liability. See 423 U. S., at 370.
371 [96 S. Ct., at 603-604].” Monell v. Department of Social
Services, 436 U. S. at 694 n. 58, 98 S. Ct. at 2037. The
Rizzo case requires that there must be a direct causal link
between the acts of individual officers and the supervisory
defendants. Rizzo v. Goode, 423 U. S. at 370-71, 96 S. Ct.
at 607-604. It is essentially this same concept that re-
quires that the implementation or execution of a govern-
mental policy or custom be shown before liability can be
imposed on a municipality. Monell v. Department of So-

7a

cial Services, 436 U. S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d
611 (1978).

The language and history of § 1983 are silent as to
whether supervisory officials and municipalities can be
held liable for negligently having failed to adequately
train, supervise, and control individual police officers who
violate a plaintiff's constitutional rights. The language of
§ 1983 providing that a person who “subjects, or causes
to be subjected” another to a deprivation of constitutional
rights appears on its face to be broad enough to encompass
merely negligent deprivations. The broad potential of this
language is bolstered to some extent also by the Supreme
Court’s declaration that Is lection [1983] should be read
against the background of tort liability that makes a man
responsible for the natural consequences of his actions.”
Monroe v. Pape, 365 U. S. 167, 187, 81 S. Ct. 473, 484, 5
L. Ed. 2d 492 (1961). The trend of the case law, however,
has not been in this direction. Rather, the case law has
limited § 1983 so as not to reach isolated instances where a
negligent failure to adequately supervise, train, or control
was involved. See, e. g., Jamison v. McCurrie, 565 F. 2d
483 (7th Cir. 1977) ; Bonner v. Coughlin, 545 F. 2d 565 (7th
Cir. 1976) (en banc); Parker v. McKeithen, 488 F. 2d 553
(5th Cir.), cert. denied, 419 U. S. 838, 95 S. Ct. 67, 42
L. Ed. 2d 65 (1974); Edmonds v. Dillin, 485 F. Supp. 722
(N. D. Ohio 1980) ; Rheuark v. Shaw, 477 F. Supp. 897 (N. D.
Texas 1979) ; Leite v. City of Providence, 463 F. Supp. 585
(D.R.I. 1978); Schweiker v. Gordon, 442 F. Supp. 1134
(E.D. Pa. 1977); cf. Riezo v. Goode, 423 U. S. 362, 370-71,
96 S. Ct. 598, 603-604, 46 L. Ed 2d 561 (1976). But see,
Carter v. Carlson, 144 U. S. App. D.C. 388, 447 F 2d 358
(D.C, Cir. 1971), rev’d on other grounds sub nom., District
of Columbia v. Carter, 409 U. 8. 418, 93 S. Ct. 602, 34
L. Ed. 2d 613 (1973).

8a

A major part of the doctrinal foundation for requiring
a higher degree of culpability than ordinary negligence is
the concern that such a standard would unduly impede or
circumscribe the performance of oflicial duties. The courts
look for some proof that a defendant has a culpable state
of mind — that the action or failure to act was to some
degree deliberate rather than imadvertent. The verbal
formulations of this concept have varied from gross negli-
gence or recklessness, Owens v. Haas, 601 F. 2d 1242 (2nd
Cir. 1979); White v. Rochford, 592 F. 2d 381 (7th Cir.
1979) ; Jenkins v. Averett, 424 F. 2d 1228 (4th Cir. 1970);
Leite v. City of Providence, 463 F. Supp. 585 (D. R. I. 1978);
Schweiker v. Gordon, 442 F. Supp. 1134 (E. D. Pa. 1977);
Perry v. Elrod, 436 F. Supp. 299 (N. D. III. 1977), to actions
or failures to act which, though not intended to harm the
plaintiff, were so likely to violate plaintiffs’ rights and cause
them injury that the harm was “substantially likely to re-
sult,” Rheuark v. Shaw, 477 F. Supp. 897 (N.D. Texas
1979), to “purposeful non-feasance” in the face of a duty
to act, see Bonner v. Coughlin, 545 F. 2d 565 (7th Cir. 1976),
to an apparent requirement of intent, see Edmonds v.
Dillin, 485 F. Supp. 722 (N.D. Ohio 1980), but in practical
terms the underlying concept appears to be similar in the
vast majority of the cases.’

{4] The major impediment to simple negligence as a
basis for liability of supervisory officials and municipalities,
however, is the Supreme Court’s decision in Rizzo v. Goode,
423 U. S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976). In

*But see, Carter v. Carlson, 144 U.S. App. D.C. 388, 447 F. 2d
$58 (D.C. Cir. 1971), rev’d on other grounds sub nom., District of
Columbia v. Carter, 409 U.S. 418, 93 8. Ct. 602, 34 L. Ed. 2d 613
(1973) (negligent failure to train or supervise police force is ac-
tionable under § 1983). As will be seen, infra, it is significant that
this case predates the Supreme Court's decision in Rizzo v. Goode,
423 U. 8. 362, 96 8. Ct. 598, 46 L. Ed. 2d 561 (1976).

Rizzo the Court reversed the lower court’s grant of in-
junctive relief against Philadelphia city and police depart-
ment officials because the plaintiffs had failed to show an
“affirmative link between the occurrence of the various inci-
dents of police misconduct and the adoption of any plan or
policy by petitioners—express or otherwise—showing their
authorization or approval of such misconduct.” Id. at 871,
96 S. Ct. at 604. The Court made it clear that a showing
of “direct responsibility” for the actions of the individual
officers is a prerequisite for liability. The mere “failure
to act [even] in the face of a statistical pattern” of inci-
dents of misconduct was held to be insufficient to base lia-
bility on. Id. at 376, 96 S. Ot. at 606. Although Rizzo
involved equitable relief in the form of a somewhat com-
prehensive injunction of future conduct, and federalism
concerns played a not insignificant part in the decision,
this same standard has been adopted and applied in cases
involving monetary relief. E. g., Leite v. City of Provi-
dence, 463 F. Supp 585, 590 (D. R. I. 1978) ; Perry v. Elrod,
436 F. Supp. 299, 303-04 (N. D. III. 1977) Delaney v. Dias,
415 F. Supp. 1351, 1354 (D. Mass. 1976). The result of
Rizzo and subsequent cases in the lower federal courts ap-
plying the standards it announced is that a failure of a
supervisory official to supervise, control, or train the of-
fending individual officers is not actionable absent a show-
ing that the official either encouraged the specific incident
of misconduct or in some other way directly participated
in it. At a minimum a plaintiff must show that the official
at least implicitly authorized, approved, or knowingly ac-
quiesced in the unconstitutional conduct of the offending
officers. See e.g., Leite v. City of Providence, 463 F. Supp.
585 (D.R.I. 1978).

[5] Where, as here, the constitutional violation was not
alleged to be part of a pattern of past misconduct, a super-
visory official or a municipality may be held liable only

10a

where there is essentially a complete failure to train the
police force, or training that is so reckless or grossly negli-
gent that future police misconduct is almost inevitable,
e. g., Leite v. City of Providence, 463 F. Supp. at 590, or
would properly be characterized as substantially certain to
result, Rheuark v. Shaw, 477 F. Supp. 897 (N.D. Texas
1979).

Although many of the cases cited for the above analysis
were brought pursuant to § 1983, the court finds the reason-
ing therein equally apposite to direct constitutional actions
sanctioned by the Supreme Court’s reasoning in Bivens v.
Sia Unknown Named Agents, 403 U. S. 388, 91 S. Ct. 1999,
29 L. Ed. 2d 619 (1971). The court, at least on the facts
here presented, sees no basis for different standards in the
two types of actions.

[6] There remains some significant issues to be disposed
of so that on remand a new trial may be properly con-
ducted. Defendant Jefferson County challenges the judg-
ment against it as impermissibly based on a respondeat
superior theory of liability. Respondeat superior was re-
jected as a sole basis for municipal liability in a 1983 action
by Monell v. Department of Social Services, 436 U. 8. 658,
98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), and im a Bivens
action by this Court in Jones v. City of Memphis, 586 F. 2d
622 (Gth Cir. 1978). The heart of the County’s challenge
concerns the following jury instruction given by the trial
judge below:

This is also a civil action brought by the two plain-
tiffs asking for damages, both compensatory and puni-
tive, because of alleged negligent acts or omissions of
high ranking Jefferson County officials, namely Police
Chief Russell McDaniel and Assistant Chief Wilbur
Bilyeu, arising out of actions of officers of the Jef-
ferson County Police Force which took place on

lla

September 26, 1975 at the Bittersweet Shopping Center.
A government can act in this case, only through its
high ranking officials, Chief McDaniel and Assistant
Chief Bilyeu. The burden is on the plaintiffs to estab-
lish by a preponderance of the evidence in this case
that the negligence of one or both of the officials, Chief
McDaniel and Assistant Chief Bilyeu, was a proximate
cause of any injuries and consequent damages sus-
tained by the plaintiffs.

In order for plaintiffs to recover against defendant,
Jefferson County, the burden of proof is upon the plain-
tiffs to establish each of the following elements:

1. That officers of the Jefferson County Police Force
knowingly beat, bruised and wounded plaintiffs or
either of them about the body.

2. That Chief McDaniel and Assistant Chief Bilyeu
were employed by Jefferson County as Chief of Police
and Assistant Chief of Police respectively, at the time
of the injuries referred to herein.

3. That Chief McDaniel and Assistant Chief Bilyeu,
or either of them, negligently supervised, trained or
controlled the police officers under their command at
Bittersweet Shopping Center and that such negligence
in supervision, training and control was the proximate
cause of the injuries of plaintiffs or either of them,
inflicted upon them by police officers on the occasion
complained of.

You are further instructed that you may not return
a verdict against the defendant, Jefferson County, if
you believe from the preponderance of the evidence
that the plaintiffs were injured by policemen of Jeffer-
son County merely because of the fact that these police-
men were employees of Jefferson County, Kentucky.

12a

In other words, if you believe that Chief McDamiwl and
Assistant Chief Bilyeu adequately supervised, trained
and controlled the police officers, then you shall return
a verdict for the defendant, Jefferson County, even
though you may believe, from the preponderance of the
evidence, that individual policemen in employment of
Jefferson County knowingly beat, bruised and wounded
the plaintiffs om the occasion complained of. (emphasis
added )

Jefferson County argues, in spite of the last paragraph
quoted above, that this instruction, in particular the em-
phasized section, bases its liability solely on the employ-
ment relationship between it and the other defendants,
which it equates with the respondeat superior doctrine.
This argument, however, ignores the fact that a govern-
mental entity can ouly act through its principal officials,
e. g., Leite v. City of Providence, 463 F. Supp. at 589. The
distinction drawn by the trial judge in the final paragraph
of the above instruction correctly distinguished the acts of
the unidentified individual officers, for which Jefferson
Oounty can not be held responsible absent a policy or cus-
tom causing such conduct, ¢.g., Monell v. Department of
Social Services, 436 U. S. 658, 98 8. Ot. 2018, 56 L. Ed. 2d
611 (1978); Riezo v. Goode, 423 U. S. 362, 370-71, 96 S. Ot.
598, 603-604, 46 L. Ed. 2d 561 (1976), and a failure to train,
supervise, or control those officers by defendants Chief of
Police McDaniel and Assistant Chief Bilyeu, whose failure,
for this purpose, would be the failure of Jefferson County
ae well. The negligence standard in paragraph 3 of the in-
atruction, of course, must be modified to accord with this
opinion, but the instruction is otherwise proper.

[7] Defendants next argue that the trial court’s refusal
to give a contributory negligence instruction to the jury was
error. It is their contention that the plaintiffs’ failure to

unidentified police officers. Contributory negligence has

tional torts, W. Prosser, Law of Torts, 426 (4th ed. 1971).
Plaintiffs’ alleged negligence in failing to leave the area in
no way relates to the allegations against the def endants in
this case.

Addressing the other issues raised by the parties, relat-
ing to the good faith defense, punitive damages“ and at-
torney fees, is not necessary in light of today’s decision.
The parties will have the opportunity to further address
these issues below as appropriate.

Accordingly, the judgment below is vacated, and the
case is remanded to the district court for further proceed-
ings not inconsistent with this opinion.

Menairrt, Cirouit Judge, dissenting.

This case raises two sets of issues. One concerns the
Standard of liability of the County under 42 U.S.C. § 1983
and directly under the Fourteenth Amendment. The other
concerns the standard of liability of the police chief and his
deputy as supervisory officials under 4 1983.

I. LIABILITY OF THE COUNTY

With respect to the County, I believe that the reasoning
of Monell v. New York City Department of Social Services,
436 U. S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), re-

eln the recent case of City of Newport v. Fact Concerts, Ine.,

s. 101 8. Ot. 2748, 69 L. Bd. 2d 616 (1981), the

Court held that municipalities are immune from punitive
damages in § 1983 actions.

14a

quires that plaintiffs show that the County followed a
“policy or custom” of encouraging, or at least not dis-
couraging, police brutality in order to recover under § 1983
or in a direct action under the Fourteenth Amendment.
The District Court directed a verdict on the 6 1983 claim
because plaintiffs failed to offer proof of a “policy or
custom” under Monell. But the District Court let the direct
Fourteenth Amendment action under § 1331 against the
County go to the jury under a negligence standard. This
was error. Although it is unclear after Monell whether
the Supreme Court will approve this Circuit’s implication
of a Bivens-type direct action under the Fourteenth Amend-
ment, it is clear that in this Circuit the Monell standard
also applies to direct actions against municipalities, as
Judge Phillips stated for the Court in Jones v. City of
Memphis, 586 F. 2d 622, 624-25 (6th Cir. 1978). Since there
is no evidence that the harm in question here resulted from
a county “policy or custom,” tacitly or expressly adopted
or followed by the county or its officials, I would hold that
the proof is insufficient to permit the case against the
County to go to the jury on the direct Bivens-type action.
In order to establish such a policy or custom, the plaintiff
must at least show that the city had notice of a prior
pattern of police misconduct likely to recur if no steps
were taken to prevent it. As I understand the record, there
was no such proof in this case.

II. LIABILITY OF SUPERVISORY POLICE
OFFICIALS UNDER § 1983

With respect to the two individual defendants, neither
negligence alone, as the District Court charged the jury,
nor gross negligence alone, as the majority seems to hold,
should be the exclusive standard of liability for supervisory
police officials under § 1983. If police officials do not
directly participate in a federal constitutional violation,

15a

the question is under what circumstances should they be
held accountable when their agents commit an illegal seizure
of the citizen’s person or engage im conduct amounting to
summary punishment. Under what circumstances should
such supervisory officials be liable for failing im their duty
to “protect” citizens against police brutality?

Where the supervisory official does not direct, encour-
age, or otherwise participate in the wrong committed by
his agent, it seems clear that “fault”—a “neglect” or re-
fusal to train or take other protective action in advance—
is only one element of liability. Another element is also
necessary. The official must have “knowledge” that the
constitutional injury is likely to occur unless action is taken.
There must be some past pattern of misconduct, some prior
misbehavior, or other prior act that puts the official on
notice of the potential constitutional deprivation. In this
ease the police officials affirmatively tried to stop the
advance of the policeman on the crowd of anti-busing
demonstrators, and as our Court states at page 874 of ite
opinion, there is no allegation or proof that the brutality
was “part of a pattern of past misconduct.” Therefore,
although a jury might find on the facts of this case a
“neglect” to give police officers adequate riot training, it
could not find the requisite “knowledge” or “notice” of
prior misconduct.

The knowledge element is derived from the purpose of
§ 1983. It was part of the anti-Ku Klux Klan act of 1871,
a primary purpose of which was to impose a “duty of pro-
tection” on local officials, a duty to protect blacks from the
night riders and others who systematically deprive them
of their civil rights. In light of this purpose, it is clear
that police officials should be liable when they fail to take
any steps to remedy a known pattern of police brutality.
Where, however, there is no proof of a pattern of prior
misconduct known to the officials, they should not be held

16a

Mahle under § 1983 for simply failing to provide adequate
training.

This “knowledge” element seems implicit in Justice
Brenman’s analysis of 5 1983 for seven members of the
Court in Monell, as well as in Justice Powell’s concurring
opinion. In analyzing the “language of § 1983” Justice
Brennan states :

Indeed, the fact that Congress did specifically provide
that A’s tort became B’s liability if B “caused” A to
subject another to a tort suggests that Congress did
not intend § 1983 liability to attach where such causa-
tion was absent. See Rizzo v. Goode, 423 U. S. 362,
370-71, 96 S. Ot. 598, 603-604, 46 L. Ed. 2d 561 (1976).

This sentence is followed by a footnote which states in

pertinent pari:
Support for such a conclusion can be found in the

justification for the Sherman Amendment was that it

was a necessary and proper remedy for the failure of

localities to protect citizens . . . and according to

Sherman, Shellabarger, and Edmunds, the amendment

came into play only when a locality was at fault or had

knowingly neglected its duty to provide protection.

(Emphasis added.)

436 U. S. at $52, 98 S. Ct. at 2036. This language from
Monell indicates to me that knowledge of the impending
constitutional violation is a necessary element of the con-
stitutional tort.

Im his concurring opinion which attempts to further
explain the rationale of the majority opimion, Justice
Powell notes that ability under § 1983 should be read as
limited to “affirmative conduct,” id. at 706, 98 S. Ct. at 2043,

7.

or read “as a limitation of the statutory ambit to actual
wrongdoers, i.e., a rejection of respondeat superior or any
other principle of vicarious liability.” Id. at 707, 98 S. Ct.
at 2044.

Thus, considering the language of § 1982, its original
purpose and the statements of the Supreme Court concern-
ing liability in Monell, I conclude that in police brutality
cases against supervisory officials § 1983 requires plaintiff
to show knowledge of a past pattern of misconduct or some
prior misbehavior or some other prior act that puts the
official on notice of the potential constitutional deprivation.
Since there was no showing of the knowledge element of
the wrong in this case, I would reverse and imstruct the
District Court to enter judgment for the supervisory police
officials.

18a

UNITED STATES DISTRICT COURT

Civil Actions No. C 75-0335 L(A) & 0 76-0424 L(A)

Dox alp L. Hays, Jz. aud
Micnakl, Porr - - - Plaintis

V.
Jnrrxnsox County, Ky., Et AL - - - Defendants

MEMORANDUM OPINION—Entered 6/29,'79

These consolidated actions were tried before a jury and
resulted in jury verdicts for the two plaintiffs in the total
amount of $133,000. Of this amount, $90,000 represented
punitive damages awarded against Jefferson County and
$10,000 punitive damages against Major Wilbur Bilyeu.
Compensatory damages in the total amount of $20,000 were
awarded plaintiff Hays as against the County, and $2,000
compensatory damages were awarded Potter as against the
County. The jury also awarded Hays $5,000 as against
Colonel Russell McDaniel as compensatory damages, and
awarded Potter $500 as compensatory damages against
Col. McDaniel. Hays also was awarded $5,000 as compen-
satory damages against Bilyeu, while Potter was awarded
$500 as compensatory damages against Bilyeu.

The defendants contend vigorously that the Court
should not have submitted the case to the jury under the
Fourteenth Amendment and 28 U.S.C. Sec. 1331. They

rely upon the theory that the Supreme Court, by its recent

19a

decision in Monell v. Department of Social Services of
The City of New York, 436 U. S. 658 (1978) is the sole
remedy for constitutional violations of an individual’s
rights by a municipality or county. They also rely upon
the decision of the Second Circuit in Turpin v. Mailet, 591
F. 2d 426 (1979), which expressly holds that there is no
need for a cause of action under the Fourteenth Amend-
ment and 28 U.S.C. Sec. 1331, since the Supreme Court has
given authority to proceed in Monell, supra, under 42 U.S.C.
Sec. 1983. However, this Court is bound by the decisions
of the United States Court of Appeals for the Sixth Circuit,
barring any controlling Supreme Court decisions.

In Jones v City of Memphis, Tennessee, 586 F. 2d 622
(6th Cir. 1978), decided three months after Monell, supra,
the court stated, on page 624 “(t)his Circuit has held con-
sistently that a direct cause of action under 28 U.S.C. Sec.
1231 for violation of constitutional rights is available
against a municipality.” (citing cases). The court then
went on to state that six other circuits had reached the
same conclusion.

Finally, the court stated that appellee had not contended
that the City of Memphis was negligent in failing to pro-
vide proper training and supervision of the police officers
who allegedly violated appellee’s constitutional rights.
The court pointed out, also, that appellee had not argued
that the City ratified or condoned the alleged misconduct.
Therefore, the court held that the complaint should have
been dismissed because it only alleged the doctrine of
respondeat superior. The court reasoned that it would be
incongruous to hold that respondeat superior could be in-
voked against a municipal corporation in an action under
28 U.S.C. Sec. 1331, when the doctrine has no application
in an action under 42 U.S.C. Sec. 1938. See 586 F. 2d
at p. 625.

Jones v. City of Memphis, supra, having been decided
three months after Monell, supra, seems to stand for two
propositions. The first is that a direct cause of action is
still available under 28 U.S.C. See. 1331, and the second is
that respondeat superior is not available in an action
against a municipality under either Secs. 1331 or 1983.

We have reviewed the instructions submitted to the
jury and find that they expressly directed the jury not to
return a verdict against the defendants on the theory of
respoudeat superior. The instructions did authorize the
jury to return a verdict if they believed that Col. McDaniel
or Major Bilyeu, or either of them, negligently supervised,
trained or controlled the police officers under their com-
mand, and that such negligence was the proximate cause of
the injuries of the plaintiffs. We believe that such an in-
struction was appropriate in the light of the language in
Jones v. City of Memphis, supra, found at p. 624 with
regard to the failure of the appellee to contend that the
City of Memphis was negligent in failing to provide proper
training and supervision of police officers who allegedly
violated his constitutional rights.

Defendant, Jefferson County, has alleged that it is im-
mune from the payment of any judgment rendered against
it because it is a political subdivision of the State. It
relies on Edelman v. Jordan, 4.5 U. 8. 651 (1974). How-
ever, that reliance is misplaced, since the Supreme Court
there pointed out that a suit by private parties seeking to
invoke a liability which must be paid from public funds in
the state treasury is barred by the Eleventh Amendment.
See 415 U. S. at p. 663. Here there is no showing that the
judgments rendered against the County will be paid from
the state treasury.

Defendant also complains about tue failure of the Court
to give a contributory negligence instruction based on the
theory that there was evidence that the plaintiffs dis-

2a

regarded the warnings given them by the defendants to
leave the shopping center. The answer to this contention
is that, while negligence of Major Bilyeu and Col. McDaniel
was alleged with regard to the training and supervision of
the police officers, it is apparent that the injuries of the
plaintiffs were due to the use of intentional force by un-
known police officers. As is held in Haber v. County of
Nassau, 557 F. 2d (2nd Cir. 1977), where there is an
intentional tort, contributory negligence is not a defense.

This Court did instruct the jury on the good faith de-
fense asserted by the defendants and told the jury that it
should find for the defendants in the event that it found
the injuries were inflicted upon the plaintiffs by the defend-
ants while acting in the lawful discharge of their duties to
disburse the crowd.

We come now to a much more troublesome question,
and one which is of great importance to the administration
of justice, The question is whether there was evidence in
the case from which a reasonable jury could award punitive

damages against Major Bilyeu and the County.

Punitive damages, generally, are awarded to punish
wrongdoers for conduct which is oppressive or malicious,
or which shows wanton disregard for the rights of a plain-
tiff. See, eg. Vetters v. Berry, 575 F. 2d 90 (6th Cir.
1978) ; Rieser v. District of Columbia, 563 F. 2d 562 (D.C.
Cir. 1977). However, mere inadvertence or even gross
negligence is insufficient for an award of punitive damages.
See, e.g., Nieser, supra. In assessing the legal standards
applicable to punitive damages, it should further be noted
that the Sixth Circuit has held that:

„. . . in Civil Rights cases the common law of a
state may be used on the issue of damages where it
better serves the policies expressed in the federal stat-

7

utes.” McDaniel v. Carroll, 457 F. 2d 968, 969 (6th
Cir. 1972).

A review of Kentucky law indicates that where, as in
the case at bar, the punitive damage award appears ex-
cessive in light of the amount of actual damages shown,
the award should be closely scrutinized. As noted in
Henderson v. Henderson Federal Home Corp., 320 8. W.
2d 113 (Ky. 1959):

“While it has been said that it is not essential that
punitive damages, where authorized, bear any reason-
able relation to the actual damages suffered . . ,
it is necessary, because of the absence of such a limita-
tion, that there be no reasonable basis for concluding
that the former flow from a consideration of incom-
petent evidence so likely to inflame the passion and
prejudice of the jurors.” (Emphasis added) 320 S. W.
2d at p. 116.

The evidence is uncontradicted that Major Bilyeu, the
officer-in-charge on the night the injuries were suffered by
plaintiffs, did everything within his power to conciliate the
demonstrators at the Bittersweet Shopping Center. Only
after much provocation from certain persons among the
demonstrators did Major Bilyeu order the firing of tear gas
and the advance of the police across the street into the
shopping center. The only evidence presented upon which
this Court submitted the question of punitive damages to
the jury was that presented by one officer to the effect that
90% of the police officers he observed on that night were
unidentified, His testimony on cross-examination was
more tentative, however. While there was evidence by
many of the witnesses for the plaintiffs that the officers
they saw were unidentified, there was no evidence intro-
duced from which a jury could find that the presence of

unidentified officers was due to any malicious, wanton or
oppressive conduct by Major Bilyeu. Therefore, we now
believe that upon consideration of the competent evidence
in the case with regard to Major Bilyeu’s conduct, there is
not sufficient evidence upon which a reasonable jury could
find Major Bilyeu liable for punitive damages,

With regard to the punitive damage award against the
County, while the individual unidentified police officers who
struck the plaintiffs were certainly guilty of conduct which
would authorize an award of punitive damages, the County,
under Jones, supra, can only be held liable insofar as the
actions taken by Major Bilyeu at the shopping center
represent the de facto policy of the County. See, Lewis v.
Kugler, 446 F. 2d 1343 (3rd Cir. 1971); Schwell v. City of
Chicago, 407 F. 2d 1084 (7th Cir. 1969). Further limiting
potential County liabilty for punitive damages is the fact
that, as a general matter, courts have recognized strong
policy considerations militating against the award of puni-
tive damages against a governmental unit. See, e.g.,
Rieser, supra, at p. 481. However, it is not necessary im
the case at bar for the Court to reach the merits of such
considerations since, as noted above, the evidence does not
indicate that Major Bilyeu, as the de facto policy maker of
the County, was guilty of conduct which would warrant an
award of punitive damages. Therefore, the same reasoning
as is noted with regard to the liability of Major Bilyeu for
punitive damages is applicable to the County and the puni-
tive damage award against the County should, likewise, be
set aside.

We note the defendant’s arguments concerning alleged
errors by the Court with regard to the introduction of
evidence concerning the investigation made by the Police
Department, or lack of investigation made by the Police
Department, after the Bittersweet incident. The Court
fully instructed the jury not to consider any of this evi-

dence, and to strike it entirely from their minds. We
believe that the evidence was correctly conditionally re-
ceived, upon the theory which was advanced by the plain-
tiffs, that the Police Department had, in effect, ratified and
condoned the actions of individual unidentified police of-
ficers by failing to find out who these officers were who had
been guilty of misconduct. When it became obvious to the
Court that this line of inquiry could not be satisfied by the
evidence, the Court so advised the parties and later in-
structed the jury.

Defendants complain of the testimony of a witness to
the effect that a police officer told him that the officers had
been authorized to beat up demonstrators. No objection
was made by the defendants at the time this evidence was
introduced, and the Court accordingly, did not make any
rulings with regard thereto. We do not believe that the
introduction of this evidence without objection constitutes
good grounds for a new trial.

Finally, the defendants contend that the verdicts are
excessive and should be reduced. While it does appear that
plaintiff Hays will now recover a total of $30,000 as com-
pensatory damages, and plaintiff Potter will recover a total
of $3,000 as compensatory damages, these amounts do not
appear to be excessive, Plaintiff Hays was knocked un-
conscious and was absent from work for a total of nine
weeks. He also had to be taken to St. Joseph Infirmary,
and to be kept as a patient there for a period of time, and
incurred medical expenses in the amount of $4,540. Also,
plaintiff Hays suffered property damage to his automobile
in the amount of $5,000 and his loss of wages represented
a total of $2,700, of which the Court only allowed the jury
to consider $356 for his lost wages up to October 17, 1975
and a further sum of $1,461.18 as lost wages from Octo-
ber 17, 1975 to November 15, 1975, if the jury believed that

25a

Hays was unable to return to work prior to November 15,
1975.

As to plaintiff Potter, he incurred medical expenses in
the amount of $93.52.

Defendants have cited no cases which would show under
the present inflationary economic situation that the amount
of compensatory damages to plaintiffs is excessive, there-
fore, those awards will be affirmed.

We have this day entered our judgment in conformity
with this opinion.

Dated: June 28, 1979

(s) Charles M. Allen
Chief Judge

ec: Counsel of Record.

26a

UNITED STATES DISTRICT COURT

Civil Actions No. O 75-0335 L(A) & 0 76-0424 L(A)

Dowaup L. Hays, Jr. and

Micnwamr, Porrzrn - - - - - = #£Plaintiffs
v.
Jerrenson County. Kx., Et All. Defendants
JUDGMENT

Defendants, having moved for judgment notwithstand-
ing the verdict or, in the alternative, for a new trial, or in
the alternative, for a remittitur, and the Court, having
considered the briefs of the parties and having filed its
memorandum opinion and being fully advised in the
premises,

It Is Ordered and Adjudged as follows:

The motion of the defendants for judgment notwith-
standing the verdict is sustained insofar as it pertains to
the punitive damages awards rendered against Major
Bilyeu and Jefferson County, Kentucky, and is denied
insofar as it pertains to the verdicts for compensatory
damages against Colonel Russell McDaniel, Major Bilyeu
and Jefferson County.

The motion of the defendants for a new trial is over-
ruled.

As to the motion of the defendants for a remittitur, in
accordance with these rulings,

27a

It is Now Ordered And Adjudged that plaintiff, Donald
L. Hays, Jr., recover the folowing amounts as compen-

satory damages:

$ 5,000 from Colonel Russell McDaniel
$ 5,000 from Major Wilbur Bilyeu
$20,000 from Jefferson County, Kentucky

It Is Further Ordered and Adjudged that the plaintiff,
Michael Potter, recover the following amounts as com-

pensatory damages:

$ 500 from Colonel Russell McDaniel
$ 500 from Major Wilbur Bilyeu
$2,000 from Jefferson County, Kentucky.

It Is Further Ordered and Adjudged that the parties
confer as to the question of an appropriate attorneys’ fee
to be awarded to counsel for plaintiffs, pursuant to 42
U.S.C. See. 1988. In the event that counsel are unable to
agree within two weeks after entry of this judgment, that
it so advise the Court, and an evidentiary hearing will be
held to determine the amount to be awarded.

This is not a final and appealable judgment.

(s) Charles M. Allen
Chief Judge

2. 7?

UNITED STATES DISTRICT COURT

Civil Actions No, O 75-0335 L(A) & 0 76-0424 L(A)

Dowatp L. Hays, Je. and
Micnakl. Porremn - - - - «= «= £Plaintiffs

v.

Jurrenson County. Ky. EtAl - - - Defendants

MEMORANDUM OPINION—Entered 10/25/79

This case is submitted to the Court on the application
of plaintiffs for the payment of attorneys’ fees in the
amount of $91,940, together with reimbursement of court
costs in the amount of $1,292.38 and expenses in the amount
of $3,882,34.

These suits were brought under 42 U.S.C. Sec. 1983,
and after a trial which lasted for nine days, resulted in a
verdict of $33,000 compensatory damages and $100,000
punitive damages. Subsequently, the Court set aside the
punitive damage award and there remains only the com-
pensatory damage award.

First, it is noted that plaintiffs’ counsel contend that
they are entitled to $45,970 by virtue of the number of
hours spent multiplied by the rate of compensation which
they receive in their practice. They then ask the Court to
double this amount, a request which the Court immediately
denies under the authority of Oliver v. Kalamazoo Board
of Education, 576 F. 2d 714 (6th Cir. 1978).

Coming now to grips with the single amount requested,
the Court notes that this case presented unusually com-
plex questions under 42 U.S.C. Sec. 1983, in light of the
lack of authorities directly applicable and in light of the
quick-changing developments in this field of law, as mani-
fested by the decision of the Supreme Court in Monell v.
Department of Social Services of the City of New York,
436 U. S. 658 (1978) and Turpin v. Mailet, 591 F. 2d 426
(2nd Cir. En Bane. 1979).

The questions raised during the litigation were vigor-
ously argued for hours in chambers and were skillfully
presented by counsel for both sides. Many of the questions
which were presented are far from free of doubt and will
be resolved by future decisions of the United States Court
of Appeals for the Sixth Circuit and the Supreme Court.

We agree with counsel for plaintiff that the guidelines
set down in Johnson v. Georgia Highway Express, Inc.,
488 F. 2d 2d 714 (5th Cir. 1974) are of great help. Those
guidelines are enumerated on page 2 of plaintiffs’ brief and
will not be repeated here, but are incorporated by reference.

With reference to the first guideline, “the time and
labor required,” the defendants have not taken issue with
the figures submitted by plaintiffs. We previousiy noted
the novelty and difficulties of the questions presented and
the skill required to perform the legal services. We note
that the total number of hours spent by plaintiffs’ principal
attorney, Mr. White, amount to 335.7 out-of-court hours
and 97 in-court hours, and that his assistant, Professor
Albert T. Quick, spent 65 hours in out-of-court research
and 38 hours at the trial. The work spent by other asso-
ciates is set out in their affidavits and will not be repeated
at this time.

However, the affidavits submitted by counsel for plain-
tiffs do not reflect the amount of time spent in pursuit of
unsuccessful claims against the City of Louisville, Col. John

Nevim, former Mayor Harvey Sloane, and former County
Judge Todd Hollenbach. It will be recalled that all of
these defendants, with the exception of defendant Hollen-
bach, were dismissed on a motion for summary judgment
and that Judge Hollenbach was dismissed on a motion for
directed verdict made at the conclusion of the plaintiffs’
case-in-chief at trial.

In Hughes v. Repko, 578 F. 2d 483 (3rd Cir. 1978) it
was held that a fee-petitioner cannot be treated as the
prevailing party to the extent he has been unsuccessful in
asserting a claim. This rule, of course, would be applicable
regardless of the number of parties. Any other inter-
pretation would run counter to the spirit of the Civil Rights’
Attorney’s Fee Awards Act of 1976, 42 U.S.C. Sec. 1988.
See Hughes, supra, at p. 487.

In the absence of a breakdown of time spent by plain-
tiff's counsel as between their successful claims and their
unsuccessful claims, the Court has resorted to an examina-
tion of the docket sheet and has reveiwed the brief pre-
pared by the plaintiffs in connection with the motions of
all parties for summary judgment.

The docket sheet indicates that the depositions of Col.
Nevin of the Louisville Police Department and former
Mayor Sloane were taken in an effort to keep the city
defendants in the case. The brief filed by the plaintiffs in
opposition to the motions filed by all of the defendants for
summary judgment did not attempt to distinguish between
the city and county defendants, it being the position of the
plaintiffs that there were unidentified officers from both
city and county who caused plaintiffs’ injuries, and that,
therefore, the law was applicable to both city and county.

A fair reading of the docket entries indicates that plain-
tiffs were concentrating their efforts primarily against the
county defendants. In light of the factual circumstances

3la

developed through discovery and at the trial, this was a
logical step for plaintiffs to have taken.

The Court is unable to allocate any fixed figure to the
number of hours spent by counsel for plaintiffs in pursuing
unsuccessful claims against the defendants referred to
previously, as well as a very abortive effort to make the
Commonwealth’s Attorney a party, an effort which ended
unsuccessfully upon the granting of a motion to dismiss
the Commonwealth. However, it would seem not unfair to
estimate that plaintiffs consumed possibly as much as 20%
to 25% of their out-of-court time in pursuing their un-
successful claims.

With regard to their in-court time, they prevailed on
all of their claims for simple damages, except as to Judge
Hollenbach, but subsequently lost on their claims for puni-
tive damages. This Court observed clearly all of the ac-
tions taken by plaintiffs during the trial of the case, and is
of the opinion that the great majority of their efforts were
directed at obtaining a verdict for simple damages, al-
though, of necessity, the Court and counsel all wrestled
with the question for several hours of whether or not
punitive damages was a proper inatter for the jury, and,
if so, what instructions were appropriate in connection
therewith. Also, after the jury verdict was rendered, coun-
sel for plaintiffs devoted some time in their memorandum
to the upholding of the punitive damage award, although,
here again, the chief thrust of their arguments were in
connection with the compensatory damages award.

In connection with the hourly rates which plaintiffs’
counsel cite, this Court has never approved a fee of $100
per hour for trial work. In cases involving awards of
attorney’s fees against governmental organizations such
as counties and cities, the general practice of this Court has
been to allow an overall fee of $50 per hour which, in recent
instances, the Court has increased to $60 per hour for in-

trial work, and to $52.50 per hour for time spent in prepar-
ing legal memoranda. We believe that these figures are
reasonable as a base in the usual case against a govern-
mental organization which must operate within strict
budgetary limits and whose resources are derived from
taxation of people of the community.

Having reached this conclusion, it would ordinarily be
appropriate to merely multiply the number of hours spent
by counsel in pursuing their successful claims times the
reasonable hourly rate established by the Court. However,
in the case at bar, as in any other case where damages are
recovered, the Court must take into consideration the
damage awards and allow it some part in the fixing of a
fee. If plaintiffs’ attorneys were to be compensated strictly
on the basis of time spent times reasonable hourly rate, the
Court would be of the opinion that their fee should be
$30,000. However, the total damage award reached is
$33,000 and we know that attorneys who take cases on a
contingency-fee basis usually set their fees at a figure not
exceeding 50% of the amount recovered. In light of the
unusual legal questions presented here and of the time
spent by counsel in pursuing them, we are willing to award
a fee in excess in 50% of the recovery, and believe that an
award of $20,000 is just in light of all of the circumstances
and the guidelines set out in Johnson v. Georgia Highway
Express, Inc., supra.

In reaching this decision, we do not feel that it is neces-
sary to comment upon the applicability of all the guide-
lines set out in Johnson, supra. We do note, however, that
counsel for plaintiffs have stated that they will not accept
a fee from their clients, although they had a contingency-
fee arrangement with them. We note, also, that this case
does not fall within the category of an undesirable case
since, in this instance, counsel were representing members
of the majority white race who were expressing senti-

33a

ments which apparently were shared by a great many of
their fellow-citizens.

We observe, also, that counsel has not advised us of
any preclusion from other employment as a result of their
employment in this case. Mr. White apparently is very
active in the trial of tort cases and the preparation of the
case at bar does not seem to have interferred with his
activities in that respect. Professor Quick is on the faculty
of the University of Louisville Law School and any em-
ployment he has had in this case is in addition to his usual
occupation as a teacher.

Counsel for plaintiffs have filed an item entitled “Court
Costs”, which is in the amount of $1,292.38, and it appears
to be entirely proper. In addition, plaintiffs are request-
ing reimbursement in the amount of $3,882.34 for many
different types of expenses. The Court, in awarding ex-
penses, is governed by the case of Farmer v. Arabian
American Oil Company, 379 U. S. 227 (1964); 28 U.S.C.
Sec. 1821 and 28 U.S.C. 1920; Federal Rules of Civil Pro-
cedure 54(d). Farmer holds that items proposed by winning
parties as costs should always be given careful scrutiny
and that the discretion given district judges to tax costs
should be sparingly exercised with reference to expenses
not specifically allowed by statute. See 379 U.S. at p. 235.

Plaintiffs are seeking reimbursement in the amount of
$1,500 for a model used at the trial of the action. Such
models are not specifically listed in the applicable statutes
and the Fourth and Fifth Circuits have held that the cost
of procuring them are not recoverable by the prevailing
party. See Specialty Equipment d Machine Corp. v. Zell
Motor Car Company, 193 F. 2d 515, 520-521 (4th Oir. 1952) ;
Johns-Manville Corp. v. Cement Asbestos Products Com-
pany, 428 F. 2d 1381, 1385 (Sth Cir. 1970). However, in
Wahl v. Carrier Manufacturing Company, Inc., 511 F. 2d
209 (7th Cir. 1975), the court there poir’ 4 out that it had

u

allowed such costs to be reoovered, but strongly suggested
that in the future such costs should not be allowed unless

prior approval of the court was secured. We believe tha.
in this case it would be improper to make an award for
the elaborate model nsed by the plaintiffs without prior
approval as to the matter of costs granted by the Court.
See, also, W. F. d John Barnes Company v. International
Harvester, 145 F. 2d 915 (7th Cir. 1944), cert. denied, 324
U. S. 850 (1945).

The plaintiffs are also claiming $280 for psychological
tests and evaluations. No mention is made as to the object
of the psychological testing, and in a case where mental
competency of the parties was not in issue, it is clear that
there is no authority for the award of such a fee.

More important than that item is the amount claimed
for George Tomberlin of $732, as expert witness fee, and
$155.21 for his room at Stouffer’s. It will be recalled that
Mr. Tomberlin testified as an expert witness for a portion
of one day. Under 28 U.S.C. Sec. 1821, plaintiffs are
entitled to recover the amount of $30 for his testifying at
the time, and the actual expenses of his travel by common
carrier at the most economical rate reasonably available.
See 28 U.S.C Sec. 1821(c)(1). In addition, under 28
U.S.C. Sec. 1821(d)(1), he should be paid a subsistence
allowance not to exceed $35 per day when an overnight
stay is required. See 28 U.S.C. Sec. 1821 (d) (2).

As the Court best recalls it, Mr. Ton berlin was from
the State of Maine and, no doubt, because of the relatively
few flights between Maine and Louisville, was required to
spend one night in Louisville in order to give his testimony
at trial. Plaintiff should, therefore, submit to the Court a
claim for Mr. Tomberlin’s expenses by air, coach class,
from his residence to Louisville and return. Plaintiffs’
counsel are entitled to recover $70, as Mr. Tomberlin’s

35a

subsistence allowance, making a total of $65 awardable,
plus the amount of the air fare.

Next, we note that plaintiffs are claiming $100 for the
attendance at the deposition of Dr. David Karp, and $45
for the attendance of Dr. Michael Needleman at his deposi-
tion, together with $25 paid Dr. Neediemam for a consulta-
tion. Dr. Karp and Dr. Needleman are entitled to be paid
at the rate of $30 for attendance at their depositions. See
Sperry Rand Corporation v. A-T-O, Inc., 58 F. R. D. 132
(E. D. Va. 1973).

Other items claimed by the plaintiff such as expenses
for film, lost wages, parking expenses, transportation for
witnesses, and copies of cases are not allowed. See 28
U.S.C. Sec. 1920 and Wahl v. Carrier Manufacturing Com-
pany, Inc., supra. We believe that probably the items of
$8 and „15 for medical records should be recognized as
legitimate expenses of litigation.

An item of $113.20 is entitled “Roger O’Neil Appearance
at trial.“ Roger O’Neil was a witness who testified at the
trial and, like other witnesses, is entitled to $30 for his
attendance at the trial. If he, as a nonresident of Ken-
tucky, was compelled to use a common carrier to attend the
trial or drove his own vehicle, then such expense is reim-
bursable in the manner already set out by the Court, but
Mr. White’s exhibit does not contain this information.
Plaintiffs will be given the opportunity, within 10 days, to
provide the Court with any information as to Roger
O’Neil’s expenses and the transportation expense of Mr.
Tomberlin.

36a

Finally, we agree that Mr. White should be reimbursed
for copies of depositions which he has listed in the Fee
Petition Exhibit.

An order in accordance with this memorandum opinion
will be entered this day.

(s) Charles M. Allen
Chief Judge

37a

UNITED STATES DISTRICT COURT

Civil Actions No. O 75-0335 L(A) & 0 76-0424 L(A)

Dowatp L. Hays, Je. and
Miocnakl. Porn - - - «= #£Plaintiffs

v.

Jurrenson County. Ky, Et All. - Defendants

ORDER—Entered 10/25/79

Counsel for plaintiffs, having petitioned the Court for
attorneys’ fees of $91,940, together with reimbursement of
court costs in the amount of $1,292.38 and expenses in the
amount of $3,882.34, and the Court, having rendered its
memorandum opinion and being fully advised im the
premises,

It Is Ordered that defendant, Jefferson County, Ken-
tucky, pay the sum of $20,000 to counsel for plaintiffs as
fees for their services on successful claims rendered in this
action, and reimburse plaintiffs’ counsel in the amount of
$1,292.38 for court costs advanced by them, which is set out
in Exhibit A, and reimburse them in the amount of $203
for the expenses claimed in Exhibit B, subject, however, to
the right of plaintiffs’ counsel to produce to the Court a
proper statement as to the costs of Mr. George Tomber-
lin’s air fare between the place of his residence and Louis-
ville, Kentucky and return, and the air fare of Roger
O’Neil between the place of his residence and Louisville,

38a

Kentucky and return, if applicable. Said statements should
be presented in an affidavit by counsel within 10 days
hereinafter.

This is not a final and appealable order.

(s) Charles M. Allen
Chief Judge

UNITED STATES DISTRICT COURT

POR THE WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

Civil Actions No. O 75-0335 L(A) & 0 76-0424 L(A)

Dowatp L. Hays, Jr. and
Mionaxl. Porrern - - - - - «= #£Plaintiffs

v.
Jerrenson County. Kx., Et All - Defendants

FINAL JUDGMENT—Entered 11/19/79

This action, having been tried before a jury and having
resulted in various jury verdicts, including compensatory
and punitive damages for the plaintiffs, and the Court,
having subsequently stricken the award of punitive dam-
ages, and the question of attorneys’ fees having been tried
Hy the Court, and the question of reimbursable expenses
now having been decided by the Court,

It Is Ordered and Adjudged that plaintiff, Donald L.
Hays, Jr., recover the sum of $20,000 as against Jefferson
County, Kentucky, and $5,000 as against Col. Russell Me-
Daniel and $5,000 as against Major Wilbur Bilyeu.

It Is Further Ordered and Adjudged that plaintiff,
Michael C. Potter, recover the sum of 000 compensatory
damages as against Jefferson County, Kentucky, and $000
as against Col. Russell McDaniel, and $5,000 as against
Major Wilbur Bilyeu.

It Is Further Ordered and Adjudged that the defend-
ant, Jefferson County, Kentucky, pay the sum of $20,000
to counsel for plaintiffs as attorneys’ fees, and that it

40a

reimburse plaintiffs the sum of $1,292.38 for court costs
advanced by them, and reimburse them in the amount of
$651 as exp enses claimed in plaintiffs’ Exhibit B.

This is a final and appealable judgment and there is no
just cause for delay.

(s) Charles M. Allen
Chief Judge

4la

UNITED STATES DISTRICT COURT

Civil Actions No. O 75-0335 L(A) & 0 76-0424 L(A)

Dowatp L. Hays, Jr. and
Michal. Porryzs - Plaistis

v.
Jerrenson County. Kr., Et Al - - - Defendants

AMENDED FINAL JUDGMENT—Entered 12/4/79

This matter, having proceeded to final judgment, en-
tered November 19, 1979, and it having come to the Court’s
attention that the Jury’s verdict was correctly recited in
the judgment entered June 29, 1979, but incorrectly recited
im the final judgment, and it appearing that this matter
should be corrected pursuant to Federal Rules of Civil
Procedure 60(a),

It Is Ordered and Adjudged that the third paragraph of
the final judgment herein, entered November 19, 1979 be
and it is hereby amended to read as follows:

It Is Further Ordered and Adjudged that plaintiff,

Michael C. Potter, recover the sum of $2,000 compen-

satory damages as against Jefferson County, Ken-

tucky, and $500 as against Col. Russell McDaniel, and

$500 as against Major Wilbur Bilyeu.

This is a final and appealable judgment and there is no
just cause for delay.

(s) Charles M. Allen
Chief Judge

42a

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Nos. 80-3010, 80-3011

Dowatp L. Hays, Jr. and

Micuast ©. Porn Plaintiſſs-Appellees,
" Cross-Appellants

Jervenson County, Kxxruckx,

Wusve Briyev and

Russet McDawmn - - - Defendants-Appellants,

Cross-A ppellees

OPINION
March 10, 1982

Before Munnrrr and Jones, Circuit Judges, and Ginsox,“
District Judge.

ORDER

Upon receipt and consideration of the petitions for re-
hearing filed hereim by the plaintiffs-appellees, cross-ap-
pellants, and defendants-appellants, cross-appellees, the
Court concludes that the issues raised therein were fully
considered upon the original submission and decision of
thie case. 668 F. 2d 869.

The petitions for rehearing are denied.

Merairt, Brown, Kennepy and Mastin, Circuit Judges,
dissenting.

»The Honorable Benjamin F. Gibson, Judge, U.S. District
Court for the Western Diatrict of Michigan, sitting by designation.

43a

We dissent from the order of the Court im this case
denying defendant-appellant's petition for en bane recon-
sideration. The case raises significant questions concerning
the standard of liability of municipal and county govern-
ments and police and other supervisory officials under the
Fourteenth Amendment and 42 U.S.C. § 1983. These ques-
tions frequently arise in the District Courts. The stand-
ards announced im the panel decision predicating a con-
stitutional violation and, therefore, liability on a “failure
to train” or training that is “grossly negligent” are inadequ-
ate standards as the dissenting opinion pointe out.

In addition to the weaknesses in the majority opinion
pointed out by the dissent, it should be noted that on the
county’s liability the majority opinion is internally incon-
sistent. The District Judge granted a directed verdict on
the plaintiffs’ claim under § 1983 because as against the
county there had been no showing of a “policy or custom”
as required by Monell v. New York City Dept. of Social
Services, 436 U. S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978). The question then is whether a different standard
applies in a direct action under the Fourteenth Amendment.
Our Court’s opinion im Jones v. City of Memphis, 586 F. 2d
622, 624-25 (6th Cir. 1978) and good policy both require
that the “policy or custom” standard be the same whether
the action against the county is under § 1983 or directly
under the Fourteenth Amendment. Since the majority
decision remands the case for a new trial in the direct ac-
tion under the Fourteenth Amendment against the county,
it is necessarily saying that the standard im the two types
of actions is somehow different. Yet the majority opinion
seems to be saying that the two standards are the same.
Since the trial judge directed a verdict under § 1983, it
follows that if the same standard is used in the direct ac-
tion, the trial court must direct a verdict there as well.
Either the trial court erred in directing a verdict under

.

§ 1983 when it found no evidence of a “policy or custom”
or it erred im failing to direct a verdict on the direct action
as well, if the two standards are the same. The rulings of
the trial court on the § 1983 claim and the direct action
claim, and the rulings by the panel majority of our Court,
are inconsistent, assuming that the same standard is applied
to both.

The panel decision properly recognizes that respondeat
superiors does not apply in an action against supervisory
personnel and municipal governments under 42 US.C.
§ 1983 (Monell v. New York City Dept. of Social Services,
436 U. S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)) or
directly under the Constitution (Jones v. City of Memphis,
586 F. 2d 622 (6th Cir. 1978)). Nevertheless, it then holds
that a municipality would be liable whenever “principal
officials” thereof are liable because “[a] governmental
entity can only act through its principal officials.” At 875.
This is a Species of respondeat superior liability. On the
contrary, as we read Monell, it is not enough, to make a case
of liability against a municipality under § 1983, to make
such a case against a “principal official” acting within the
scope of his employment. As Justice Brennan’s opinion
states in Monell, 436 U. S. at 694, 98 S. Ct. at 2037:

We conclude, therefore, that a local government
may not be sued under § 1983 for an imjury inflicted
solely by its employees or agents. Inctead, it is when
execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts
may fairly be eaid to represent official policy, inflicte
the injury that the government as an entity is respon-
sible under § 1983.

It is one thing to hold a municipality liable for conduct of
its employees, principal officials or otherwise, where the
conduct is im execution of the government’s “policy or

45a

custom” and quite another thing to hold the municipality
liable for conduct of an employee simply because he was a
“principal official” acting or not acting within the scop. of
his employment. For example, a chief or assistant chief
of police might be “grossly negligent” (at 874) and yet his
conduct could not be said to represent official policy.

TRANSCRIPT OF TESTIMONY
VOLUME VI

117

Now training is one thing. Maybe the jury should not
be instructed on training. There is no proof they were
improperly trained. It narrows down to control or super-
vision. There is no proof that Major Bilyeu did not super-
vise them properly, but to the extent of the misidentifica-
tion. So really you get down to control, and there should
be some way, I think, that the county should be able to
control their actions. I don’t know, I am not a military
man. I don’t know how it would be. Mr. White?

TRANSCRIPT OF TESTIMONY
VOLUME V

86

Mr. Mosley: So from the standpoint of your opinion
now, there’s been no facts with regard to that particular
question, from your opinion, the only error that you thought
was committed that night was the fact that Major Bilyeu
was unable to communicate to his men that they were not
to cross Preston Highway, isn’t that correct?

A. Yes sir.

Q. And as far as you can tell, based upon the hypo-
thetical and the facts that you know, there was no other
improper act on Major Bilyeu’s part that evening?

A. No sir.

46a

TRANSORIPT OF TESTIMONY
VOLUME VII

167

Q. Now at what point was that?

A. All right. When the chemical was launched, then
within a few seconds after the chemical was launched and
had lit both in the back side of the crowd and along the
curb, now the chemical was sent both in the rear of the
crowd and in front of the crowd because of the wind factor,
the wind factor being very important in moving your crowd.

As the men, as trained, moved forward, I made the de-
cision then that I just simply wanted that chemical to have
a few more seconds, to continue dissipating the crowd.

Q. All right.

A. But they, of course, continued, as they should have.

Q. Well, at some point, in terms of the dispersal of
the gas, did you want the men to cross the street?

A. Yes.

Q. So is it your testimony then that the reason for
that particular order was to just let the gas have a few
more seconds to

A. That's all we're talking about is just a few more
seconds.

TRANSCRIPT OF TESTIMONY
VOLUME V

84
Q. In your thec y or understanding of these type sit-
uations, isn’t it also true that the person in charge does
not go over to the scene of the crowd or does not become
immersed in the crowd, isn’t that good, tactical training
as far as a person in charge is concerned?
A. Yes sir,

47a

Q. So the fact that Major Bilyeu did not cross the
street was part of what good crowd control would tell you,
isn’t that true?

. Yes sir.

TRANSCRIPT OF TESTIMONY
VOLUME IV

139

I wonder if you would tell the jury, in your opinion,
and you used a term in your deposition as to how you
thought the county police conducted themselves on the
evening of September 26th at Bittersweet Shopping Center.

A. Well, the activities that I saw, saw them partici-
pate in, which was up until the time they entered the
shopping center, was conducted as close by the book as you
could do it. They—the people who launched the gas and
the movements were very professional.

48a

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

Civil Actions No. O 75-0335 L(A) & 0 76-0424 L(A)

Dowatp L. Haye Jn. and
Mionanl, Porrsa - - - «+= «= «= £«Plaintiffs

v.
Jurrenson County. Ky.,Et Al - - - Defendants

CHARGE TO THE JURY—Given 4/19/79
Members of the Jury:

Now that you have heard the evidence and the argu-
ment, it becomes my duty to give you the instructions of
the Court as to the law applicable to this case.

It is your duty as jurors to follow the law as stated in
the instructions of the Court, and to apply the rules of law
so given to the facts as you find them from the evidence in
the case.

You are not to single out one instruction alone as stat-
ing the law, but must consider the instructions as a whole.

Neither are you to be concerned with the wisdom of any
rule of law stated by the Court. Regardless of any opinion
you may have as to what the law ought to be, it would be
a violation of your sworn duty to base a verdict upon any
other view of the law than that given in the instructions of
the Court; just as it would be a violation of your sworn
duty, as judges of the facts, to base a verdict upon anything
but the evidence in the case.

49a

Nothing I say in these instructions is to be taken as an
indication that I have any opinion about the facts of the
case, or what that opinion is. It is not my function to
determine the facts, but rather yours.

Justice through trial by jury must always depend upon
the willingness of each individual juror to seek the truth as
to the facts from the same evidence presented to all the
jurors; and to arrive at a verdict by applying the same
rules of law, as given in the instructions of the Court.

You have been chosen and sworn as jurors in this case
to try the issues of fact presented by the allegations of the
complaint of the plaintiffs, Donald L. Hays, Jr. and Michael
C. Potter, and the answer thereto of the defendants, Jef-
ferson County, Kentucky, Russell McDaniel, Major Wilbur
Bilyeu. You are to perform this duty without bias or
prejudice as to any party. Our system of law does not
permit jurors to be governed by sympathy, prejudice, or
public opinion. Both the parties and the public expect that
you will carefully and impartially consider all the evidence
in the case, follow the law as stated by the Court, and
reach a just verdict, regardless of the consequences.

Unless otherwise stated, the jury should consider each
instruction given to apply separately and individually to
each plaintiff and to each defendant in the case.

This case should be considered and decided by you as
an action between persons of equal standing in the com-
munity, of equal worth, and holding the same or similar
stations in life. A county is entitled to the same fair trial
at your hands as a private individual. The law is no
respector of persons; all persons, including counties, stand
equal before the law, and are to be dealt with as equals in
a court of justice.

The burden is on the plaintiffs in a civil action, such as
this, to prove every essential element of their claim by a
preponderance of the evidence. If the proof should fail to

50a

establish any essential elements of plaintiffs’ claim by a
preponderance of the evidence in the case, the jury should
find for the defendants.

To “establish by a preponderance of the evidence”
means to prove that something is more likely so than not
so. In other words, a preponderance of the evidence in the
case means such evidence as when considered and com-
pared with that opposed to it, has more convincing force,
and produces in your minds belief that what is sought to
be proved is more likely than not true.

In determining whether any fact in issue has been
proved by a preponderance of the evidence in the case, the
jury may, unless otherwise instructed, consider the testi-
mony of all witnesses, regardless of who may have called
them, and all exhibits received in evidence, regardless of
who may have produced them.

When I say in these instructions that a party has the
burden of proof on any proposition, or use the expression
“if you find”, or “if you decide”, I mean you must be
persuaded, concerning all the evidence in the case, that
the proposition is more probably true than not true.

The fact that I have instructed you on the proper
measure of damages should not be considered as an indica-
tion of any view of mine as to which party is entitled to
your verdict in this case. Instructions as to the measure
of damages are given only for your guidance, in the event
that you should find in favor of either plaintiff on the ques-
tion of liability, by a preponderance of evidence and in
accord with the other instructions.

The rules of evidence ordinarily do not permit wit-
nesses to testify as to opinions or conclusions. An excep-
tion to this rule exists as to those whom we call “expert
witnesses”. Witnesses who, by education and experience,
have become expert in some art, science, profession, or
calling, may state their opinions as to relevant and material

5la

matter, in which they profess to be expert, and may also
state their reasons for the opinion.

You should consider each expert opinion received in
evidence in this case, and give it such weight as you may
think it deserves. If you should decide that the opinion of
an expert witness is not based upon sufficient education and
experience, or if you should conclude that the reasons given
in support of the opinion are not sound or if you feel that
it is outweighed by other evidence, you may disregard the
opinion entirely.

You are not bound to decide any issue of fact ia ac-
cordance with the testimony of any number of witnesses
which does not produce in your minds belief in the likeli-
hood of truth, as against the testimony of a lesser number
of witnesses or other evidence which does produce such
belief in your minds.

The test is not which side brings the greater number of
witnesses, or presents the greater quantity of evidence, but
which witness, and which evidence, appeals to your minds
as being most accurate, and otherwise trustworthy.

You, as jurors, are the sole judges of the credibility of
the witnesses and the weight their testimony deserves.
You may be guided by the appearance and conduct of the
witness, or by the manner in which the witness testifies, or
by the character of the testimony given, or by evidence to
the contrary of the testimony given.

You should carefully scrutinize all the testimony given,
the circumstances under which each witness has testified,
and every matter in evidence which tends to show whether
a witness is worthy of belief. Consider each witness’ in-
telligence, motive and state of mind, and demeanor and
manner while on the stand. Consider the witness’ ability
to observe the matters as to which he has testified, and
whether he impresses yuu as having an accurate recollec-
tion of these matters. Consider also any relation each

witness may bear either side of the case; the manner in
which each witness might be affected by the verdict; and
the extent to which, if at all, each witness is either sup-
ported or contradicted by other evidence in the case.

Inconsistencies or discrepancies in the testimony of a
witness, or between the testimony of different witnesses,
may or may not cause the jury to discredit such testimony.
Two or more persons witnessing an incident or a transac-
tion may see cr hear it differently; and innocent misrecol-
lection, like failure of recollection, is not an uncommon
experience. In weighing the effect of a discrepancy, always
consider whether it pertains to a matter of importance or
an unimportant detail, and whether the discrepancy results
from innocent error or intentional falsehood.

After making your own judgment, you will give the
testimony of each witness such weight, if any, as you may
think it deserves.

During the trial of this case, certain testimony has been
read to you by way of deposition, consisting of sworn re-
corded answers to questions asked of the witness in ad-
vance of the trial by one or more of the attorneys for the
parties to the case. The testimony of a witness who, for
some reason, cannot be present to testify from the witness
stand may be presented in writing under oath, in the form
of a deposition. Such testimony is entitled tot! same
consideration, and is to be judged as to credibility, and
weighed, and otherwise considered by the jury, in so far
as possible, in the same way as if the witness had been
present, and had testified from the witness stand.

This is a civil action brought by the two plaintiffs
asking for damages, both compensatory and punitive, aris-
ing out of alleged actions of officers of the Jefferson
County Police Force which took place on September 26,
1975 at the Bittersweet Shopping Center. In order for
plaintiffs to recover against defendants Bilyeu and Mc-

53a

Daniel the burden of proof is upon the plaintiffs to es-
tablish each of the following elements:

1. That officers of the Jefferson County Police Force
knowingly beat, bruised and wounded plaintiffs or either
of them about the body.

2. That the defendants Bilyen and McDaniel then and
there acted under color of some law of the State of Ken-
tucky or ordinance or regulation of the County of Jefferson
or some regulation or order issued by the Chief of Police
or the Assistant Chief of Police of the County of Jefferson.
3. That the defendants Bilyeu and McDaniel by their acts
and conduct deprived the plaintiffs of their federal consti-
tutional rights not to be denied or deprived of their liberty
without due process of law as phrase is defined and ex-
plained in these instructions.

4. That the defendants Bilyeu and McDaniel failed in
their duty to adequately supervise, train and control the
police officers who were under their command at Bitter-
sweet Shopping Center, and that such failure to supervise,
train and control were the proximate cause of injury and
damage to the plaintiffs.

You are further instructed that you may not return a
verdict against the defendants Bilyeu and McDaniel if you
believe from the preponderance of the evidence that the
plaintiffs were deprived of their constitutional rights by
policemen of Jefferson County acting under color of law
merely because of the fact that these policemen were em-
ployees of Jefferson County, Kentucky. In other words,
if you believe that the defendants Bilyeu and McDaniel
adequately supervised, trained and controlled the police
officers then you shall return a verdict for all of the de-
fendants, even though you may believe, from the prepon-
derance of the evidence, that individual policemen in the
employment of Jefferson County knowingly beat, bruised
and wounded the plaintiffs on the occasion complained of.

54a

You are further instructed by way of definition that an
act is “knowingly” done if it is done voluntarily and in-
tentionally and not because of mistake or accident or other
innocent reason.

“Intent” ordinarily may not be proved directly because
there is no way of fathoming or scrutinizing the operations
of the human mind But you may infer a person’s intent
from surrounding circumstances. You may consider any
statement made or act done or omitted by a party whose
intent is in issue, and all other facts and circumstances
which indicate his state of mind.

You may consider it reasonable to draw the inference
and find that a person intends the natural and probable
consequences of acts knowingly done or knowingly omitted.
It is for you to decide what facts have been established by
the evidence.

Acts are done “under color of law” of a state, county, or
municipality not only when officials or officers act within
the bounds or limits of their lawful authority, but also
when such officers act without and beyond the bounds of
their lawful authority. In order for unlawful acts of an
official to be done “under color of any law,” however, the
unlawful acts must be done while the official is purporting
or pretending to act in the performance of his official
duties; that is to say, the unlawful acts must consist in an
abuse or misuse of power which is possessed by the offcial
only because he is an official; and the unlawful acts must
be of such a nature, and be committed under such circum-
stances that they would not have occurred but for the fact
that the person committing them was an official, purporting
to exercise his official powers.

As you will note, the federal statutes, which the de-
fendants are alleged to have violated, cover not only acts
done by an official under color of any state law but also

55a

acts done by an official under color of any ordinance or
regulation of any county or municipality of the state, as
well as acts done by an official under color of any regula-
tion or order issued by any state, or county or municipal
official, and even acts done by an official ader color of
some state or local custom.

So, the phrase “under color of state law” includes acts
done under color of any state law, or county or municipal
ordinance, or any regulation issued thereunder, or any
state or local custom.

As stated before, the Fourteenth Amendment to the
Federal Constitution provides that no state shall deprive
any person of his liberty without due process of law. The
“liberty” of the individual, which the Federal Constitution
thus secures and protects, is not an absolute and unqualified
freedom or privilege to do as one pleases at all times and
under all circumstances ; but is always subject to reasonable
restraints, including of course such restraints as are im-
posed by law. The plaintiffs in this case, in common with
the defendants and all other persons who live under the
protection of our Constitution, had the legal right at all
times not to be deprived, without due process of law, of any
liberty secured or protected to him by the Constitution or
laws of the United States.

The plaintiffs had at the time of the demonstration the
liberty to be free from unlawful attacks upon the physical
integrity of their persons. It has always been the policy of
the law to protect the physical integrity of every person
from unauthorized violation or interference.

To be deprived of liberty “without due process of law”
means to be deprived of liberty without authority of the
law.
As police officers and policemen at the scene of the
Bittersweet demonstration, the police officers of Jefferson
County had the lawful authority, indeed the lawful duty

under law, to preserve the peace; to prevent demonstrators
from injuring one another or property; generally to en-
force order among the demonstrators; and particularly to
protect life and property at the center and surrounding
areas. The police officers of Jefferson County had the
lawful authority, indeed to lawful duty under law, to use
such physical force as may have been reasonably necessary
to prevent harm to life at the Bittersweet Center at the
time and place which is the subject of this action; to enforce
compliance with proper instructions; to protect other per-
sons, and, themselves as well, from physical harm at the
hands of the demonstrators, including the plaintiffs.

If you find from a preponderance of the evidence that
injuries were inflicted upon the plaintiffs by officers of the
Jefferson County police, and such injuries were inflicted
for any one or more of the lawful purposes mentioned in
the preceding paragraph, such conduct of these police
officers was not unlawful, unless you further find from the
preponderance of the evidence that the police officers used
more or greater force that it would have appeared to a
reasonable person to be necessary in order to accomplish
the lawful purposes intended.

If you further believe from the preponderance of the
evidence that any unlawful acts of the individual police
officers resulted in injuries to the plaintiffs, and that such
acts took place because of the failure of defendants Bilyeu
and McDaniel to adequately supervise, train and control
the officers, and that such acts were committed under color
of state law and were the proximate cause of plaintiffs’
injuries, then you should find for the plaintiffs.

An injury or damage is proximately caused by an act or
a failure to act whenever it appears from the evidence in
the case that the act or omission played a substantial part

in bringing about or actually causing the injury or damage ;

57a

and that the injury or damage was either a direct result or
a reasonably probable consequence of the act or omission.

This does not mean that the law recognizes only one
proximate cause of an injury or damage, consisting of only
one factor or thing, or the conduct of only one person. On
the contrary, many factors or things, or the conduct of two
or more persons, may operate at the same time, either
independently or together, to cause injury or damage; and
in each such case, each must be a proximate cause.

If you should find from a preponderance of the evidence
that the defendants Bilyeu and McDaniel acted in a manner
that was reasonable and in good faith under all of the
circumstances which were attendant on the night of Sep-
tember 26, 1975, then you shall return a verdict for them.

If you find for the plaintiffs on the issue of compensa-
tory damages, you shall award plaintiff Hays his medical
and hospital expenses in the amount of $1,095.24 and a
further amount of $356 for his lost wages up to October 17,
1975 and a further sum of $1,461.18 as lost wages from
October 17, 1975 to November 15, 1975, if you believe that
he was unable to return to work prior to November 15,
1975, and such amounts as you believe will reasonably
compensate him for his pain and suffering and mental
anguish, and also, for the additional sum of $300 for the
damage done to his automobile.

As to the plaintiff Potter, if you find for him on the
issue of compensatory damages, you shall award him the
sum of $93.52 for his medical expenses and shall award him
euch sum as you may think just for his pain and suffering
and mental anguish.

In addition to actual damages, the law permits the jury,
under certain circumstances, to award the injured person
punitive and exemplary damages, in order to punish the
wrongdoer for some extraordinary misconduct, and to serve

as an example or warning to others not to engage in such
conduct.

If the jury should find from a preponderance of the
evidence im the case that plaintiffs are entitled to a verdict
for actual or compensatory damages; and should further
find that the act or omission of the defendant Bilyeu which
proximately caused actual injury or damage to the plain-
tiffs, was wanton, then the jury may, if in the exercise of
discretion they unanimously choose so to do, add to the
award of actual damages such amount as the jury shall
unanimously agree to be proper, as punitive and exemplary

In addition to actual damages, the law permits the jury,
under certain circumstances, to award the injured person
punitive and exemplary damages, in order to punish the
wrongdoer for some extraordinary misconduct and to serve
as an example or warning to others not to engage in such
conduct.

An act or a failure to act is “wantonly” done, if done in
reckless or callous disregard of, or indifference to, the
rights of one or more persons, including the injured person.

The jury should bear in mind, mot only the conditions
under which, and the purposes for which, the law permits
an award of punitive and exemplary damages to be made,
but also the requirement of the law that the amount of such
extraordinary damages, when awarded, must be fixed with
calm discretion and sound reason, and must never be either
awarded, or fixed in amount, because of any sympathy, or
bias, or prejudice with respect to any party to the case.

If you should award punitive damages as against Major
Bilyeu such award should also run agaunst the defendant,
Jefferson County.

You further are instructied that the evidence that plain-
tiffs suffered injuries from unidentified policemen and the
extent of those injuries should not play any part in your

59a

consideration as to whether to award punitive damages as
against Major Bilyeu and Jefferson County, and that your
award, if any, must be based on the considerations which I
have outlined above.

This is also a civil action brought by the two plaintiffs
asking for damages, both compensatory and punitive, be-
cause of alleged negligent acts or omissions of high rank-
ing Jefferson County officials, namely Police Chief Russell
MeDaniel and Assistant Police Chief Wilbur Bilyeu, aris-
ing out of actions of officers of the Jefferson County Police
Force which took place on September 26, 1975 at the Bitter-
sweet Shopping Center. A government can act in this
case, only through its high ranking officials, Chief Me-
Daniel and Assistant Chief Bilyeu. The burden is on the
plaintiffs to establish by a preponderance of the evidence
in this case that the negligence of one or both of the offi-
cials, Chief McDaniel and Assistant Chief Bilyeu, was a
proximate cause of any injuries and consequent damages
sustained by the plaintiffs.

In order for plaintiffs to recover against defendant,
Jefferson County, the burden of proof is upon the plaintiffs
to establish each of the following elements:

1. Thgt officers of the Jefferson County Police Force
knowingly beat, bruised and wounded plaintiffs or either of
them about the body.

2. That Chief McDaniel and Assistant Chief Bilyeu
were employed by Jefferson County as Cfiief of Police and
Assistant Chief of Police respectively, at the time of the
injuries referred to herein.

3. That Chief McDaniel and Assistant Chief Bilyeu, or
either of them, negligently supervised, trained or con-
twmulled the police officers under their cor: mand at Bitter-
sweet Shopping Center and that such negligence m super-
vision, training and control was the proximate cause of the

injuries of plaintiffs or either of them, inflicted upon them
by police officers on the occasion complained of.

You are further instructed that you may not return a
verdict against the defendant, Jefferson County, if you
believe from the preponderance of the evidence that the
plaintiffs were injured by policemen of Jefferson County
merely because of the fact that these policemen were em-
ployees of Jefferson County, Kentucky. In other words,
if you believe that Chief McDaniel and Assistant Chief
Bilyeu adequately supervised, trained and controlled the
police officers, then you shall return a verdict for the de-
fendant, Jefferson County, even though you may believe,
from the preponderance of the evidence, that imdividual
policemen in employment of Jefferson County knowingly
beat, bruised and wounded the plaintiffs on the occasion
complained of.

You are further instructed that:

1. Negligence is lack of ordinary care. It is a failure
to exercise that degree of care which a reasonably
prudent person would have exercised under the same
circumstances. It may arise from doing an act
which a reasonably prudent person would not have
done under the same circumstances, or, on the other
hand, from failing to do an act which a reasonably
prudent person would have done under the same cir-
cumstances.

2. Negligence require[s] both a foreseeable danger of
injury to another and conduct unreasonably im pro-
portion to the danger. A person is not responsible
for the consequences of his comduet une the risk
of injury was reasonably foreseeable. The exact
oceurrence or precise injury need not have been fore-
seeable ; but injury as a result of negligent conduct
must have been not merely possible but probable.

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ed

6la

If a reasonably prudent person could not foresee any
injury as a result of his conduct, or if his conduct
was reasonable in the light of what he could foresee,
there is no negligence. Conversely, there is negli-
gence if a reasonably prudent person could foresee
injury as a result of his conduct, and his conduct was
unreasonable in the light of what he could foresee.

3. Ordinary or reasonable care is that care which per-
sons of ordinary prudence would use in order to
avoid injury to themselves or others under circum-
stances similar to those shown by the evidence.

4. A proximate cause of an injury is a cause which, in
natural and continuous sequence, produces the in-
jury, and without which the injury would not have
occurred.

5. There may be more than one proximate cause of an
injury. When negligent conduct of two or more per-
sons contributes concurrently as proximate causes of
an injury, the conduct of each of said persons is a
proximate cause of the injury regardless of the ex-
tent to which each contributes to the injury. A cause
is concurrent if it was operative at the moment of
injury and acted with another cause to produce the
injury. It is no defense that the negligent conduct
of a persom not joined as a party was also a prox-
imate cause of the injury.

If you believe from the preponderance of the evidence
that the officers Bilyen and McDaniel acted with reasonable
care considering all of the cireumsiances which confronted
them, then you shall return a verdict for Jefferson County.

With regard to the claim of the plaintiffs against Jef-
ferson County, I will give you these instructions ; as police
officers and policemen at the scene of the Bittersweet

demonstration, the police officers of Jefferson County had
the lawful authority and, indeed, the lawful duty under
law to preserve the peace, to prevent demonstrators from
injuring one another or property and generally to enforce
order among the demonstrators and particularly to protect
life and property at the Center and building areas, and
they have the lawful authority, indeed the lawful duty to
use ssh physical force as may have been necessary, rea-
sonably necessary, to prevent harm to life at the Bitter-
sweet Center at the time and place which is the subject of
this action, and to enforce compliance with proper inst rue-
tions to protect other persons and themselves as well from
physical harm at the hands of the demonstrators.

And further, if you find from the preponderance of the
evidence that the imjuries that were inflicted upon the
plaintiffs by officers of the Jefferson County Police and
euch injuries were inflicted for any one or more of the
lawful purposes mentioned in the aforesaid paragraph that
conduct was not unlawful unless you further find from the
preponderance of the evidence that the police force, police
officers used more or greater force than it would have ap-
peared to à reasonable person to have becm necessary in
order to accomplish the lawful purpose intended.

In reaching your decision in this case, you shall not
consider any of the evidence concerning the investigation
made by the Jefferson County Police Department on or
after the night of September 26, 1975, concerning alleged
acts of police misconduct which occurred there. You may
not consider this evidence for any purpose whatsoever.

The verdict must represent the considered judgment of
each juror. In order to return a verdict, it is necessary
that each juror agree. Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another,
and to deliberate with a view to reaching an agreement, if
you can do so without violence to individual judgment,

*

63a

You must each decide the case for yourself, but only after
an impartial consideration of the evidence in the case with
your fellow jurors. In the course of your deliberations,
do not hesitate to reexamine your own views, and change
your opinion, if convinced it is erroneous. But do not sur-
render your honest conviction as to the weight or effect of
evidence, solely because of the opinion of your fellow
jurors, or for the mere purpose of returning a verdict.

Remember at all times that you are not partisans. You
are judges—judges cf facts. Your sole interest is to seek
the truth from the evidence in the case.

Upon retiring to the jury room, you will select one of
your number to act as your foreperson. The foreperson
will preside over your deliberations, and will be your
spokesman here in Court.

Forms of verdict have been prepared for your con-
venience.

(Forms of verdict to be read)

You will take these forms to the jury room and, when
you have reached unanimous agreement as to your verdict,
you will have your foreperson fill in, date and sign the
form which sets forth the verdict upon which you unani-
mously agree; and then return with your verdict te the
courtroom.

“ERD OF DOCKET r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0145%3A2. Public record. Not legal advice.