Opposition Brief — Maxwell v. Melton

ase —_- °

Supreme Court, U.S

FILED

oo | SEP 25 wa

No. 91-280

OFfige OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

.

MARVIN MAXWELL, MAJOR, OKLAHOMA

CITY POLICE DEPARTMENT, et al.,

Cross-Petitioners,

RAYMON J. MELTON,

Respondent.

+

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

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BRIEF IN OPPOSITION TO CROSS PETITION

FILED BY MARVIN MAXWELL, MAJOR, OKLAHOMA

CITY POLICE DEPARTMENT, et al.

+

*STEVEN M. ANGEL

Law Orrices OF STEVEN M. ANGEL

50 Penn Place, Suite 825

Oklahoma City, OK 73118

(405) 848-0286

Cart D. HucHes

HucuHes & NELSON

5801 N. Broadway Ext.

Suite 302

Oklahoma City, OK 73118

(405) 848-0111

Attorneys for Respondent

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Do cross petitioners raise any issues which are

appropriate for consideration by certiorari.

ii

PARTIES

The participants in the proceedings below were:

Raymon J. Melton, Plaintiff

City of Oklahoma City, a municipal corporation;

Lloyd A. Gramling, Chief of Police for the City of Okla-

homa City; Gerald L. Emmett, Assistant Chief of Police

for the City of Oklahoma City; Marvin Maxwell, Major,

Oklahoma City Police Department; William R. Chamb-

less, Major, Oklahoma City Police Department; Carl

Smith, Lieutenant, Oklahoma City Police Department;

Robert Taylor, Lieutenant, Oklahoma City Police Depart-

ment; David McBride, Lieutenant, Oklahoma City Police

Department; and Paula Hearn, Assistant to the City Man-

ager, Defendants

Oklahoma Municipal League, Inc. amicus curiae!

1 The corporations noted are public corporations with no

known subsidiaries of which petitioner is aware.

ili

TABLE OF CONTENTS

Page

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

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STATEMENT OF THE CASE....................00- 3

REASONS FOR DENYING THE WRIT............. 4

THE CROSS PETITIONERS CITE NO BASIS FOR

GRANTING CERTIORARI OVER PLAINTIFF’S

FIRST AMENDMENT CLAIMS.................. 4

THE CROSS PETITIONERS RAISE NO ISSUE WITH

RESPECT TO QUALIFIED IMMUNITY WHICH

WOULD JUSTIFY GRANTING THE CROSS PETI-

TION FOR WRIT OF CERTIORARI.............. 4

THE CROSS PETITIONERS HAVE NOT ASSERTED

ANY BASIS TO GRANT THE CROSS PETITION

ON THE ISSUE OF CAUSATION................ 6

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iv

TABLE OF AUTHORITIES

Page

CASEs:

McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979)..... 6

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Turpin v. Mailet, 619 F.2d 196 (2nd Cir. 1980), cert

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OTHER AUTHORITIES:

First Amendment to the Constitution of the

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Fourteenth Amendment to the Constitution of the

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No. 91-280

¢

In The

Supreme Court of the United States

October Term, 1991

4

MARVIN MAXWELL, MAJOR, OKLAHOMA

CITY POLICE DEPARTMENT, et al.,

Cross-Petitioners,

RAYMON J. MELTON,

Respondent.

¢

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

-¢@

BRIEF IN OPPOSITION TO CROSS PETITION

FILED BY MARVIN MAXWELL, MAJOR, OKLAHOMA

CITY POLICE DEPARTMENT, et al.

+

Respondent herein, Raymon J. Melton?, respectfully

prays that the court deny the cross petition for writ of

certiorari to review the judgment of the United States

Court of Appeals for the Tenth Circuit.

+

2 Petitioner in Case No. 91-29, and respondent in case nos.

91-280, 91-281, 91-304.

OPINIONS BELOW

The en banc opinion of the Tenth Circuit is reported

at 928 F.2d 9203. This decision was entered after an order

granting a hearing en banc on four (4) specific issues.

This order is reported at 888 F.2d 724, and is set out at

App. pp. 50-52. The panel decision of the Tenth Circuit is

reported at 879 F.2d 706 as Melton v. City of Oklahoma City,

and is set out at App. pp. 53-136.

S

JURISDICTION

The decision of the Tenth Circuit was entered on

March 1991. This court granted an extension to file the

instant petition for writ of certiorari until July 2, 1991, on

which date the petition was filed. The respondent filed

it’s cross petition for writ of certiorari on August 5, 1991.

The corrected petition was received by the petitioners on

August 26, 1991. Jurisdiction of this Court is invoked

under 28 U.S.C. Sec. 1254(1).

¢

STATUTES INVOLVED

This case involves the provisions of the First and 14th

Amendments to the Constitution of the United States.

The First Amendment provides:

3 A copy of this opinion is included at App. 1 of Peti-

tioner’s Appendix to the petition in Case No. 91-29. Hereinaf-

ter, reference to the appendix to Case No. 91-29 shall be

referred to as App. __.

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peacea-

bly to assemble, and to petition the Government

for a redress of grievances.

The 14th Amendment provides as follows:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty or property,

without due process of law; nor deny to any

person within its jurisdiction the equal protec-

tion of the laws.

These provisions are implemented by 42 U.S.C. Sec. 1983

which provides, in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, or the District of Columbia,

subjects or causes to be subjected any citizen of

the United States or any other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress... .

— ¢

STATEMENT OF THE CASE

As noted above, the cross-petitioner’s application for

a writ of certiorari is one of four pending cases. The

factual background to this case is clearly set forth in the

petition for certiorari filed by Raymon J. Melton in Case

No. 91-29.

¢

REASONS FOR DENYING THE WRIT

THE CROSS PETITIONERS CITE NO BASIS FOR

GRANTING CERTIORARI OVER PLAINTIFF’S FIRST

AMENDMENT CLAIMS

With respect to the First Amendment claim, the Tenth

Circuit bifurcated plaintiff’s theories. That is, the Tenth

Circuit made distinctions in the causes of action regard-

ing the plaintiff’s First Amendment claims. They recog-

nized two separate protected activities. The first was the

right to testify at trial. The second was the right to

communicate with defense counsel.

The court remanded the first issue, relating to the

claim of testifying at trial, for the purpose of properly

instructing the jury. This issue was sc well established

that the court determined that good faith immunity

would not apply to the defendants with regard to this

claim.

With respect to the second issue, relating to commu-

nicating with defense counsel, the court below affirmed

the verdict as against the City of Oklahoma City. The

court ruled that qualified immunity applied to the claims

against them in their individual capacities.

Cross petitioners’ first basis for this court granting

the writ is that the court erred in remanding this case

against these individual defendants on the trial testimony

issue‘. They urge that the evidence does not support such

a claim. However, as the court below noted, there is

sufficient evidence to justify submitting this matter to a

jury. In this regard, the panel below noted that this was

an appropriate issue for the jury, App. p. 67-68.

Accordingly, the cross petitioners fail to identify any

basis for this court granting the extraordinary writ of

certiorari. Accordingly, the petition should be denied.

THE CROSS PETITIONERS RAISE NO ISSUE WITH

RESPECT TO QUALIFIED IMMUNITY WHICH

WOULD JUSTIFY GRANTING THE CROSS PETITION

FOR WRIT OF CERTIORARI

Cross petitioners assert that certiorari should be

granted on the issue of qualified immunity with respect

to {a) the claim for denial of procedural due process in

continued employment, (b) the claim for denial due pro-

cess as to the liberty interest claim. However, the Tenth

Circuit dismissed these claims. The issue of qualified

immunity only comes into play on these claims if this

court grants certiorari on plaintiff’s petition, i.e. 91-29.

4 The cross petitioners make some reference to the issue of

“taping” as showing no First Amendment activity. That issue,

however, goes to the allegation of retaliation for communicat-

ing with defense counsel. These cross petitioners were granted

qualified immunity with respect to that claim. That issue only

applies to the City of Oklahoma City at the present time. That

issue may become applicable to these defendants only if the

court grants the petition for certiorari in plaintiff’s case, i.e.

91-29.

Accordingly, the undersigned would submit that

cross petitioners have not raised any independent basis

for certiorari.

THE CROSS PETITIONERS HAVE NOT ASSERTED

ANY BASIS TO GRANT THE CROSS PETITION ON

THE ISSUE OF CAUSATION

Cross petitioners’ final issue is that of causation. The

only claim for which defendants in their individual

capacity have liability at this time is on the First Amend-

ment claim alleging retaliation for plaintiff's trial testi-

mony.

At the outset it must be noted that cross petitioners

did not preserve this matter below. That is, they neither

submitted their own instruction on causation nor objected

to the instructions given. They raised the issue for the

first time on appeal. Therefore, they should not be per-

mitted to urge this matter to the court.

The law is clear that if an individual defendant par-

ticipates in, acquiesces in, or condones the deprivation of

constitutional rights, then that individual properly held

accountable, see e.g. Rizzo v. Goode, 423 U.S. 362 (1976),

McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979), Turpin

v. Mailet, 619 F.2d 196 (2nd Cir. 1980), cert denied 449 U.S.

1016 (1980).

> In this regard, it should be noted that cross petitioners’

assertion of an independent cause which breaks the causal

connection was not even raised before the Tenth Circuit.

In these circumstances, it is respectfully submitted,

the cross petitioner has failed to state a basis for this

court granting certiorari.

CONCLUSION

Based on the foregoing, the undersigned would

respectfully submit that the cross petition for certiorari in

this case should be denied.

*Counsel of Record

Respectfully submitted,

*STEVEN M. ANGEL

Law Orrices OF STEVEN M. ANGEL

50 Penn Place, Suite 825

Oklahoma City, OK 73118

(405) 848-0286

Cart D. HucHes

HucuHes & NELSON

5801 N. Broadway Ext.

Suite 302

Oklahaoma City, OK 73118

(405) 848-0111

Attorneys for Respondent