# Opposition Brief — Maxwell v. Melton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2555%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 502 U.S. 906 ## Text 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 r 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 WIUESTION PRESENTED .................ccccceeee i eae nese s sees soe vessivacveccevesvecce ii MN SORPUMEMIN ES. occ ccc ccc scccvcccccecs iii TABLE OF AUTHORITIES......................... iv So 6G 6 2 add se aks naccbiecevccscccveccess 2 EPIE WEED TINVOLVED .... 0... c cece csccvcccccas 2 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 a 7 iv TABLE OF AUTHORITIES Page CASEs: McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979)..... 6 manne @ Gomme, Gee US. Bee TI coc cicccscewenvvvcs 6 Turpin v. Mailet, 619 F.2d 196 (2nd Cir. 1980), cert memes GHP TD. FOU CUR oon cv cc inwes cn vessunessss 6 OTHER AUTHORITIES: First Amendment to the Constitution of the Se IIIS 3 cg a'y a. a os 6 0s PS lem Ww eka cdaeen 2,4,5 Fourteenth Amendment to the Constitution of the RR ra erate a ntg eeaie Ags eae ae 2, 3 er Gs es EE, ov 6is-s'su--da oe lead Ce eeone eee 2 LT ae OE RP OB ted Sele nA oy Sema ti my scene eee 3 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2555%3A2. Public record. Not legal advice.