Petition — Lee v. City of Knoxville

83-1272 “reD

. Jan 80 1904

ALEXANOER L. STEVAS.

CE mil

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ROBERT FRANK LEE,

Petitioner,

Vv.

CITY OF KNOXVILLE, TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Herbert S. Moncier

Ann C. Short

1832 Plaza Tower

Knoxville, TN 37929

(615) 546-7746

Attorneys for Petitioner

Herbert S. Moncier,

Counsel of Record’

QUESTIONS PRESENTED

Be Whether negligent conduct

attributable to a municipality can form

the basis of an award of damages under 42

U.S.C. § 1983 against the municipality.

2. Whether a municipality can be

liable for damages under 42 U.S.C. § 1983

for failing to supervise, control, and

train a police officer when the

municipality knew of the officer's

dangerous propensities and violent use of

firearms.

3. Whether a municipality can be

liable for damages under 42 U.S.C. § 1983

for a policy and custom of the

municipality allowing police officers to

arrest, jail, and set bond for citizens

accused of a crime without judicial

process or any appearance before a

judicial officer.

stte

LIST OF PARTIES

The only party to the proceeding in

the court whose judgment is sought to be

reviewed not listed in the caption is

Sanford Lynn Stout, one of the original

defendants against whom Robert Lee, the

Petitioner, obtained a judgment in the

District Court.

-iii-

TABLE OF CONTENTS

Page

£ tet a 8 3) ae

Less GP PRR sees 6b6bse0 08 escoee SET

TABLE OF AUTHORITIES......seeeee V

OPINIONS BELOW... .cccccccccccces 2

JURISDICTION. ...ccccccccccccccee 2

STATUTES INVOLVED. ....ceeeeeeeee 3

STATEMENT OF THE CASE.........224 4

REASONS FOR GRANTING THE WRIT... 1

CONCLUSION. ..ccccccccccccsccccce 26

PROOF OF SERVICE... . cee eee eeeeee 25

APPENDIX Aw wcccccccccscccccccccse Anl

APPENDIX Bi. ccccccceccccccccccce Bml

APPENDIX Ci. ccccccccccccccccccee Col

-iv-

TABLE OF AUTHORITIES

Page

Cases:

Adickes v. Kress & Co.,

* >. *enereeeneeneee 18

Brandon v. Allen, 719 F.2d

EOE CEER SITs Bees ecvisecces 13

Hays v. Jefferson County,

668 F.2d 6609 (oth cir.),

cert. denied, 103 S.Ct.

ga, . FPO esa eee 12,15

Herrera v. Valentine, 653

° Pe BSGadecse &9

Leite v. City of Providence,

463 F. Supp. 585 (D.R.T.

4. | Fe rer ae se se e @ee 15

Monell v. Department of Social

services, 436 U.S. 658

e*eeeoeeeeeeeeeeeveeeeeeeeee passim

Monroe v. ripe 365 U.S.

“een eoeeeneeeenerne eeeeeee 18

Owen v. City of a e

> >. eseneeeeeeete 17,18

Owens v. Haas, 601 F.2d 1242

r.), cert. denied,

444 Ge Sa 980 Pig See eae 15

Parratt v. Taylor, 451 U.S. 4

eeeeeeereeeeeeeeeeee 12,13,16 |

TABLE OF AUTHORITIES (Continued)

Page

Statutes and Regulations:

Civil Rights Act of 1871,

42 Sa Sete § Sth nelpnas &.6 wows passim

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

ROBERT FRANK LEE,

Petitioner,

Vv.

CITY OF KNOXVILLE, TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE

AND THE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES

The Petitioner, Robert Frank Lee,

petitions for a Writ of Certiorari to

review the Judgment and Opinion of the

United States Court of Appeals for the .

Sixth Circuit entered October 31, 1983. 4

rae

ain

OPINIONS BELOW

The opinion of the Court of Appeals,

entered October 31, 1983, (Appendix A,

infra, p. A-1) is unreported. The judgment

of the District Court, entered May 10,

I9S2, Caepeanets..8, 10T fay. Bx Bras a8

unreported. The order and memorandum of

the District Court, entered June 21, 1982,

(Appendix C, infra, p. C-1), granting the

motion of the Respondent herein for

judgment notwithstanding the verdict is

unreported.

JURISDICTION

The judgment of the Court of Appeals

was entered on October 31, 1983. The

jurisdiction of this Court is invoked

under 28 U.S.C. § 1254.

= ©

STATUTES INVOLVED

42 u.S.C. § 1983 provides as

follows:

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage

of any State or Territory,

subjects, or causes to be

subjected, any citizen of the

ey United States or 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

proceedings for redress.

ade

STATEMENT OF THE CASE

This case arises out of the shooting

and subsequent arrest of Robert Lee by

Sanford Stout, a Knoxville, Tennessee

police officer, who at the time of the

shooting was under investigation for a

similar shooting that occurred two months

earlier. On October 21, 1980, Robert Lee,

accompanied ody a friend, was driving home

late at night in Knoxville, Tennessee.

While Mr. Lee's automobile was stopped at

a traffic light, Mr. Lee's friend became

involved in an altercation with a

pedestrian, which resulted in the

pedestrian cutting Mr. Lee's friend with a

knife. Mr. Lee and his friend drove away,

proceeded around the block, and drove in

front of the Trailways Bus Station on a

city street. At that time, Officer Stout

was standing in the middle of the street

pointing his pistol at Mr. Lee's vehicle.

aa.

Officer Stout ordered the men out of the

vehicle. Robert Lee stopped his

automobile. Mr. Lee and his friend exited

the car and placed their hands on the roof

of the automobile as ordered. Officer

Stout then fired his revolver hitting the

windshield of the automobile. Bullet

fragments from that shot struck Robert

Lee's left wrist and right upper arm.

Officer Stout said, “Lucky miss," and

handcuffed Mr. Lee.

After being shot and handcuffed,

Robert Lee was taken to a hospital and

treated for his gunshot wounds,

Thereafter, he was transported to the

Knoxville city jail and incarcerated for

four or five hours until his bond was

posted. Officer Stout filled out a blank

warrant charging Mr. Lee with assauit and

battery and alleging that Mr. Lee had

thrown a beer bottle at him.

After filling out the warrant,

Officer Stout followed what he described

as the “standard procedure" of the

Knoxville Police Department; that is, he

did not take Mr. Lee before a Judge or

Magistrate, nor did he swear to the

affidavit in the warrant. The officer

merely filled out the warrant and

incarcerated Mr. Lee. Mr. Lee never saw a

judicial officer, and he was not informed

of the offense with which he was charged.

In fact, no valid arrest warrant was ever

obtained by the officer until the case

came on for preliminary hearing four weeks

later, at which time the General Sessions

Judge dismissed the case for lack of

probable cause,

At the time of the shooting and

arrest, Officer Stout was in his Knoxville

police uniform, and pursuant to the rules

and regulations of the City of Knoxville

cc

Police Department, he was working as an

armed, night security guard at the

Trailways Bus Station. The arrangements

for Officer Stout's employment were with

the authority and consent of the Knoxville

Police Department. Officer Stout also was

carrying a revolver issued to him by the

police department.

Approximately two months prior to

the shooting in this case, Officer Stout

had discharged his revolver four times

into an automobile in a congested civilian

area under circumstances very similar to'

the shooting of Robert Lee. That shooting

prompted an investigation by the internal

investigation division of the Knoxville

Police Department and resulted in the

confiscation of Officer Stout's weapon.

Under the standard operating procedures of

the Knoxville Police Department, the

revolver was returned to Officer Stout on

September 16, 1980, approximately one

month after it had been confiscated and

three weeks prior to the shooting of

Robert Lee. Although there was no formal

review of the investigation of the prior

shooting until December of 1980, all of

the statements from the witnesses had been

taken and the actual investigation had

been completed in August of 1980, shortly

after the shooting. Ultimately, after Mr.

Lee was shot, the first shooting was

officially declared unjustified.

In October 1981, Robert Lee

instituted a civil action pursuant to 42

u.S.C. § 1983 in the United States

District Court for the Eastern District of

Tennessee against Officer Stout, the City

of Knoxville, and Trailways Tennessee

Lines, Inc. The basis of the action was

the unlawful shooting of Mr. Lee by a

Knoxville police officer who, at the time,

: -8-

was working as a night security guard. The

complaint also was predicated on the

arrest and incarceration of Robert Lee by

the police officer, pursuant to a City

policy, without judicial process or any

appearance before a judicial officer.

The case was tried before a jury,

and at the close of Mr. Lee's proof, the

City and Trailways moved for a directed

verdict. That motion was denied, and at

the close of all the proof, all three

defendants moved for directed verdicts,

which motion was denied. The jury then

returned a verdict in favor of Mr. Lee

against Officer Stout and the City of

Knoxville and in favor of Trailways.

Judgment was entered on the jury's

verdict.

After Judgment was entered, Officer

Stout and the City jointly filed a motion

for judgment notwithstanding the verdict

x

or, in the alternative, for a new trial or

remittitur. The District Court denied

Officer Stout's motion but granted the

City's motion for judgment notwithstanding

the verdict and conditionally granted the

City's motion for a new trial.

Robert Lee timely appealed the

decision of the District Court granting

judgment notwithstanding the verdict in

favor of the City to the United States

Court of Appeals for the Sixth Circuit.

Officer Stout also cross-appealed. The

Court of Appeals affirmed the judgment of

the District Court in all respects.

This case is now before this Court

on Mr. Lee's petition for writ of

certiorari on the issue of a

municipality's liability for damages under

42 U.S.C. § 1983.

-10-

REASONS FOR GRANTING THE WRIT

This case presents important

questions of federal law which have not

been, but should be settled by this Court.

Since the decision in Monell v. Department

of Social Services, 436 U.S. 658 (1978),

the issue has arisen in the lower courts

of municipal liability under 42 U.S.C. §

1983 for failure to properly train,

discipline, or supervise police officers.

This issue has not been addressed directly

by this Court. In the absence of any

authoritative guidelines, various

standards have been articulated for

determining the scope of municipal

liability under 42 U.S.C. § 1983 for

injuries resulting from inadequate

training, discipline, or supervision of

municipal personnel. No judicial consensus

has resulted, and the issue has been

further complicated by this Court's

atte

suggestions, most recently in Parratt v.

Taylor, 451 U.S. 527 (1981), that

negligence will support a claim for relief

under 42 U.S.C. § 1983.

In the case sub judice, the Sixth

Circuit held that there was no failure to

supervise “sufficient” to establish the

City's liability. In so holding, the Court

of Appeals, citing Hays v. Jefferson

County, 668 F.2d 869 (6th Cir.), cert,

denied, 103 S.Ct. 75 (1982), ruled that

the municipality could be liable only if

there was essentially a complete failure

to train the police force, or training

that was so reckless or grossly negligent

that future police misconduct was almost

inevitable. Furthermore, the Court of

Appeals held that the evidence at best

established simple negligence and fell

short of establishing a governmental plan,

policy, or custom of misuse of firearms.

-12-

ee) =

a a

(Appendix A, infra). Only a few days prior

to the decision in this case, the Sixth

Circuit had decided and filed an opinion

in which it announced that “Cljiability

based on negligence is sufficient, and the

Parratt case undermines our decision in

Hays." Brandon v. Allen, 719 F.2d 151, 154

(6th Cir. 1983).

Under Monell, it is clear that a

municipality cannot be held liable under §

1983 solely on a respondeat superior

theory. A municipality may, however, be

sued for damages when “the action that is

alleged to be unconstitutional implements

or executes a policy statement, ordinance,

regulation or decision officially adopted

and promulgated by that body's officers"

or is “visited pursuant to governmental

‘custom’ even though such a custom has not

received formal approval through the

body's official decisionmaking channels."

-13-

Monnell, supra, 436 U.S. at 690-91. Monel]

unquestionably involved “official policy"

as the moving force of the constitutional

violation, and, as a result, that case did

not explore or define the full contours

and dimensions of the grounds on which

municipal liability could be predicated,

As emphasized in Monell by this Court,

"CWJle have no occasion to address, and do

not address, what the full contours of

municipal liability under § 1983 may be.”

436 U.S. at 695.

Little uniformity and considerable

debate characterize those cases that have

considered the liability of a municipality

for inadequate training, discipline, or

supervision of police officers. Some

courts have indicated that a single

incident of police violation of

constitutional rights may be sufficient to

suggest official acquiescence and render

ath.

the municipality liable under 42 U.S.C. §

1983. See Owens v. Haas, 601 F.2d 1242 (2d

Cir.), cert. denied, 444 U.S. 980 (1979).

Other decisions, although stating that

citizens do not have to endure a pattern

of past police misconduct before they can

sue the municipality under § 1983,

nevertheless require that the injury

result from the complete lack of training

or grossly inadequate training of a police

force. Leite v. City of Providence, 463

F. Supp. 585 (O0.R.1. 1978). See also Hays

v. Jefferson County, supra. Still other

decisions speak in terms of a

municipality's continuing failure to

remedy known unconstitutional conduct of

its police officers as the type of

informal policy or custom that is amenable

to suit under § 1983. See Herrera v.

Valentine, 653 F.2d 1220 (8th Cir. 1981).

-15-

In light of the decision in Parratt

v. Taylor, 451 U.S. 527 (1981), in which

this Court expressed that negligence

actions are not foreclosed under § 1983,

it is highly questionable whether those

cases that have required more than

negligence to sustain a claim against a

municipality under § 1983 have continuing

validity.

This case squarely places the issue

before this Court.

Nothing in Monell or in the language

or history of § 1983 strictly limits

municipal liability to intentional

deprivations of constitutional rights.

Monell was concerned, inter alia, with

defining municipal liability so to exclude

liability solely on a respondeat superior

theory. Holding a municipality liable for

its own negligence does not, however,

transform § 1983 into a mechanism by which

ii

respondeat superior liability can form the

Basis for @ Claim aegetast the

municipality. The principle of proximate

cause will serve to ensure that there must

be a direct causal or affirmative link

between the actions of the municipality

and the injury suffered.

This Court has interpreted 42 U.S.C.

§ 1983 broadly to effectuate its purpose

of encouraging private parties to

institute actions for violations of the

constitutional rights as a means of

fostering accountability and consciousness

on the part of public officials and

government entities for violations of

personal liberties. See Owen v. City of

Independence, 445 U.S. 622 (1980); Monell,

supra. By clearly enunciating the standard

of liability for municipalities, as urged

by Petitioner, this Court can further this

a) H

purpose. As recognized by this Court in

Owen v. City of Independence, supra,

The central aim of the Civil

Rights Act was to provide

protection to those persons

wronged by the “'(mJjisuse of

power, possessed by virtue of

state law and made possible

only because the wrongdoer is

clothed with the authority of

Seeee a0. **..>

How “uniquely amiss" it would

Seen emererere,. if the

government itself -- "the

social organ to which all in

Our society look for the

promotion of liberty, justice,

fair and equal treatment, and

the setting of worthy norms

and goals for social conduct"

-- were permitted to disavow

liability for the injury it

has begotten.

445 U.S. at 650-51 (quoting Monroe v.

Pape, 365 U.S. 167, 184 (1961), and

Adickes v. Kress & Co., 398 U.S. 144, 190

(1970)).

Even if this Court is disinclined to

grant certiorari in this case to consider

whether negligence will support a claim of

-18-

municipal liability under 42 U.S.C. §

1983, this case presents a much needed

opportunity to address and articulate an

appropriate standard for

municipal liability for inadequate

training, supervision, and discipline of

police officers. In particular, this case

raises the issue whether a municipality's

knowledge, actual or constructive, of an

officer's prior misconduct and improper

use of firearms likely to recur unless

action is taken can constitute or

establish a policy or custom within the

meaning of Monell.

In this case, the City attempted to

prove that the results of the police

investigation of the first shooting were

unknown to City officials at the time

Robert Lee was shot by Officer Stout such

that the City did not authorize, approve

or knowingly acquiesce in the shooting in

-19-

this case. The proof actually showed,

however, that the investigation of the

first shooting was completed prior to the

shooting of Robert Lee. Further, the proof

showed that not only were no steps taken

to discipline or supervise the officer

prior to the shooting of Robert Lee but

also that the officer's gun was returned

to him. Under these circumstances, the

Court of Appeals' conclusion that the City

was at best simply negligent merits

consideration by this Court. This

conclusion allows the City to close its

eyes to constitutional violations by its

officers and invoke § 1983 as a shield

from liability on the basis that the

officer was adequately trained.

The ramifications of the decisions

below are also far reaching because the

District Court and Court of Appeals

conclude that the standard procedures

-20-

followed by the Knoxville Police

Department for jailing and charging Robert

Lee cannot be ascribed to the City.

Monell, in speaking of deprivations

visited pursuant to governmental “custom",

does not require that the custom originate

with the municipality or that the

municipality be the only. entity to

participate or follow the custom. Any such

contrary reading of Monell is clearly too

restrictive and reduces the important

principles embodied in Monell to mere

rhetoric.

When an individual has his liberties

invaded and restrained at the whim of

police officers, acting pursuant to

municipal policy or custom, and without an

independent determination of probable

cause by a Magistrate, more than technical

distinctions, such as who initially

proposed or initiated the governmental

a2}

policy or custom, must be brought to bear

to dispossess the individual of his claim

against the municipality. The central and

fundamental inquiry should always be

whether a governmental policy or custom,

in effect and being followed by the

municipality, resulted in the violation of

a citizens' constitutional rights. Since

the District Court and Court of Appeals

have placed an artifical and strained

construction on what constitutes a

governmental policy or custom, Petitioner

submits this Court should grant the Writ

prayed for to foreclose any doubt about

the purpose and intention of municipal

liability under 42 U.S.C. § 1983.

If municipal liability under 42

U.S.C. § 1983 is to have continuing

validity and meaningful substance, the

contours of that liability must be more

clearly defined by this Court. Without

-22-

.

~~

such guidance, abuse of power and

inadequate redress of the abuse ultimately

results, as vividly demonstrated by this

case.

-23-

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that the decisions

below should be reviewed by this Court and

the petition for writ of certiorari should

be granted.

Ann C. Short

1832 Plaza Tower

Knoxville, TN 37929

(615) 546-7746

Attorneys for Petitioner

Herbert S. Moncier,

Counsel of Record

-24-

PROOF OF SERVICE

I, Herbert S. Moncier, attorney for

Robert Frank Lee, Petitioner herein, and a

member of the Bar of the Supreme Court of

the United States, hereby certify that on

the 30th day of January, 1984, I served

copies of the foregoing Petition for Writ

of Certiorari to the Supreme Court of the

United States on Louis C. Hofferbert,

Esq., City Law Director, City-County

Building, 400 Main Avenue, Knoxville,

Tennessee 37902, attorney for Respondent

herein, by mailing copies of the same in

duly addressed envelopes with postage

prepaid.

1832 Plaza Tower

Knoxville, TN 37929

(615) 546-7746

-25-

APPENDIX A

Nos. 82-5400/01

UNITED STATES COURT OF APPEALS ’

FOR THE SIXTH CIRCUIT

ROBERT FRANK LEE,

Plaintiff-Appellant,

Cross-Appel lee,

v. ORDER

SANFORD LYNN STOUT,

Defendant-Appellee,

Cross-Appellant,

and

CITY OF KNOXVILLE, TENNESSEE,

Defendant-Appellee.

Before: KENNEDY and MARTIN, Circuit

Judges; and CELEBREZZE, Senior Circuit

Judge.

This case arises from an incident

which occurred in downtown Knoxville,

Tennessee. Lee was driving home late at

night with a friend as a passenger. While

A-1

Nos. 82-5400/01 Lee v. Stout, et al

Lee's car was stopped at a traffic light,

the passenger had words with a pedestrian,

got out of the car to continue the

argument, and was cut on the elbow by the

pedestrian. Lee, with his passenger, drove

a few blocks away and then circled back to

again find the pedestrian. The pedestrian

had by this time enlisted the aid of

Stout, a uniformed Knoxville police

officer who was working off-duty at the

nearby Trailways bus station. Stout forced

Lee's car to stop by stepping in front of

the car, with his gun drawn. Stout ordered

Lee and his friend to get out of the car

and put their hands on top of it. They

complied. Stout then fired his gun. The

shot hit the windshieid near Lee, and

bullet fragments hit Lee in the wrist and

upper arm. Stout said “lucky miss," and

handcuffed Lee and his friend. Lee then

A-2

Lee v. Stout, et al Nos. 82-5400/01

realized that he was wounded and was taken

to a hospital and treated.

Stout testified that Lee had

suddenly started to go back into the car,

and that Stout had thought he was either

going for a weapon or about to run the car

over Stout. However, this testimony was

contradicted by other witnesses.

Upon release from the hospital Lee

was taken to jail. After a brief telephone

conversation with a county judge, Stout

filled out a warrant against Lee for

assault and battery, left it to be signed

later, and at the judge's direction set

Lee's bond at $200 cash (the state

minimum). Four or five hours later, Lee

was released on bond. The warrant was

never signed. The charge was dismissed at

the preliminary hearing four weeks later.

A-3

Nos. 82-5400/01 Lee v. Stout, et al

Lee then brought this § 1983 action

against Stout, the City of Knoxville, and

Trailways. Included in the complaint were

state law claims of false arrest,

malicious prosecut.:n, and assault and

battery. The Distric’ Cuurt dismissed the

state claims, refus ig to assert pendent

jurisdiction. The action was tried to a

jury which returned a verdict in favor of

Lee against Stout and the City, and in

favor of Trailways. The District Court

then granted judgment notwithstanding the

verdict in favor of the City. Lee appeals

from the judgment n.o.v., claiming that

the City is liable for inadequate

supervision of Stout and for allowing Lee

to be jailed without judicial process.

Stout cross-appeals, claiming that

evidence of a prior statement by Lee was

erroneously included, and that dismissal

A-4

Lee v. Stout, et al Nos. 82-5400/01

of the pendent claims was an abuse of

discretion.

1. City's Liability for Inadequate

Supervision

Lee first argues that the City may

be held liable for Stout's acts becaus2

the City, which must authorize off-duty

employment and which provided Stout with

his uniform, gun, transportation, and

authority, remained responsible for

supervising Stout. However, Lee has not

shown any failure to supervise sufficient

to establish the City's liability even

accepting that Stout was on duty when the

incident occurred. This Court has held

that where the constitutional violation is

not alleged to be part of a pattern or

policy "a municipality may be held liable

only when there is essentially a complete

failure to train the police force, or

A-5

Nos. 82-5400/01 Lee v. Stout, et al

training that is so reckless or grossly

negligent that future police misconduct is

almost inevitable." Hays v. Jefferson

County, 668 F.2d 869, 874 (6th Cir.),

cert. denied, 103 S.Ct. 75 (1982). The

evidence in this case was that Stout was

adequately trained.

Of only slight greater merit is

Lee's argument that the City's failure to

take Stout's gun away pending completion

of internal investigation of an earlier

reckless misuse of firearms charge against

Stout constituted knowing acquiescence or

implicit authorization of Stout's conduct.

The evidence at best establishes simple

negligence, however, and falls far short

of establishing a governmental plan,

policy, or custom of misuse of firearms.

Monell v. Department of Social Services,

A-6

Lee v. Stout, et al Nos. 82-5400/01

436 U.S. 658 (1978); Rizzo v. Goode, 423

U.S. 362 (1976).

2. City's Liability for Jailing

Without Judicial Appearance

Lee claims that the City is liable

for its policy of allowing officers to

incarcerate citizens without any

appearance before a judicial officer if

the arrest takes place at night. It is

true that when a warrantless arrest is

made a determination of probable cause

“must be made by a judicial officer either

before or promptly after arrest." Baker v.

meCoOlian, £43 U.S. 137, 143 (1979);

Gerstein v. Pugh, 420 U.S. 103, 125

(1975). This determination is required

before “any significant pretrial restraint

of liberty," but “only for those suspects

who suffer restraints on liberty other

than the condition that they appear for

A-7

Nos. 82-5400/01 Lee v. Stout, et al

trial." Gerstein, 420 U.S. at 125 & n.26.

We need not decide whether incarceration

for four or five hours before a $200 bond

is posted triggers this requirement, since

there was a judicial determination of

probable cause to hold Lee immediately

after his arrest. Stout telephoned a

county general sessions court judge and

told him that Lee had attacked Stout with

a tire iron. The county judge testified at

trial that the purpose of the telephone

call was as a substitute for a sworn

affidavit, and that his decision to allow

a warrant was made independently and not

under Stout's control.

Lee's real complaint is with the

procedure used by the judge to determine

probable cause. Although an “informal

procedure" may be used, Gerstein, 420 U.S.

at 121, we need not decide whether the

A-8

Lee v. Stout, et al Nos. 82-5400/01

procedures used in this case were too

informal because those procedures cannot

be ascribed to the City of Knoxville.

Although Knoxville is responsible for

Lee's incarceration, it has no control

over the procedures used by county judges.

It therefore had no unconstitutional

policy or custom.

3. Evidence of Lee's Statement

Some time before trial in this case,

Lee told a group of people in a bar that

he though Stout's gun had been fired

accidentally. He was overhead by an

undercover narcotics officer who was

working on an unrelated investigation that

night. The undercover officer also

captured Lee's statement on his tape

recorder. At trial, Stout attempted to

introduce that tape recording into

evidence. Lee's counsel objected on three

A-9

Nos. 82-5400/01 Lee v. Stout, et al

grounds: irrelevancy, violation of Lee's

privacy rights, and that the tape was too

garbled to be intelligible. The District

Court excluded the tape on the ground that

it was obtained in violation of 25 U.S.C.

§ 2511. Stout then attempted to introduce

the undercover officer's testimony

concerning Lee's statement. The District

Court also excluded this testimony.

The District Court did not err in

excluding the officer's tstimony, since it

was irrelevant. Lee's statement could not

have been used as a prior inconsistent

statement to impeach Lee because it was

not inconsistent with Lee's testimony. In

fact, it supported Lee's testimony. Before

the undercover officer's evidence was

offered, Lee himself had testified that he

had told a group of people, which may or

may not have included the officer, that he

A-19

Lee v. Stout, et al Nos. 82-5400/01

thought Stout's gun had been fired

accidentally. Lee also testified that he

had no way of knowing why Stout fired his

gun. Lee's statement was also not relevant

to show that the gun was fired

accidentally. If offered as a fact, it was

not within the personal knowledge of the

declarant under Fed. R. Evid. 602; and if

offered as Lee's opinion it is neither

“rationally based on the perception of the

witness" nor “helpful to a clear

understanding...of a fact in issue" as

required by Fed. R. Evid. 701.

4. Pendent Jurisdiction

In the cross-appeal Stout claims

that the District Court abused its

discretion in refusing to assume pendent

jurisdiction over Lee's state law claims

of assault and battery, false arrest, and

malicious prosecution. The District Court

A-11

Nos. 82-5400/01 Lee v. Stout, et al

dismissed the state claims before trial

without giving any reasons except for

saying "I don't deal with pendent

jurisdiction," and "I don't assume pendent

jurisdiction. I just can't do it."

It was certainly well within the

District Court's power to assume pendent

jurisdiction in this case. Lee's federal

and state claims "derive from a common

nucleus of operative fact" and “are such

that he would ordinarily be expected tu

try them all in one judicial proceeding."

United Mine Workers v. Gibbs, 383 U.S.

715, 725 (1966).

A federal court need not exercise

pendent jurisdiction to the limit of its

power, however. "It has consistently been

recognized that pendent jurisdiction is a

doctrine of discretion, not of plaintiff's

rtent. Its jess iticatien 108-33

A-42

Lee v. Stout, et a! Nos. 82-5400/01

considerations of judicial economy,

convenience and fairness to litigants. ..

. Needless decisions of state law should

be avoided both as a matter of comity and

to promote justice between the parties. .

. -" Gibbs, 383 U.S. at 276 (footnote

omitted).

Lee's state claims appear to have

been a particularly appropriate subject

for pendent jurisdiction. Proof of the

state law claims would not have

necessitated any witnesses or evidence not

needed to prove the federal law claims.

The state law claims are straightforward

tort law claims which provide the basis

for the § 1983 action. This is not a case

such as Coe v. Bogart, 519 F.2d 10, 13

(6th Cir. 1975), where the complexity of

the state law involved was such that "a

determination of the merits of that claim

A=13

Nos. 82-5400/01 Lee v. Stout, et al

should be more appropriately made by the

state courts." Neither the parties nor the

District Court have pointed out any reason

that pendent jurisdiction would be

inappropriate.

However, although the District Court

may have abused its discretion in

declining to assert pendent jurisdiction,

we do not remand this action for what

would be a separate trial of the state

claims in federal court. The parties in a

lawsuit have no right to pendent

jurisdiction. Pendent jurisdiction is a

discretionary doctrine grounded in

considerations of fairness and judicial

economy. Limitations on district courts’

discretion to decline pendent jurisdiction

arise solely from appeallate courts'

Supervisory powers. The purposes of

pendent jurisdiction would clearly no

A-14

Lee v. Stout, et al Nos. 82-5400/01

longer be served by a remand in this case.

Judicial economy would not be achieved;

both the state and federal claims have

already been adjudicated in the trial

courts.* For a federal court to retry

state claims that have already been

decided in a state trial court would

interfere with comity between the state

and federal systems. The slight

*Lee brought his state claims in the

Circuit Court for Knox County, Tennessee,

Knox County Circuit Judge James M. Haynes

dismissed Lee's action against all

defendants, apparently on res judicata

grounds, on November 3, 1982. A notice of

appeal from that dismissal to the

Tennessee Court of Appeals has been filed.

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Nos. 82-5400/01 Lee v. Stout, et al

possibility of a double recovery, which

would only materialize if the state

appellate court reversed the trial court

and the trial court then erroneously

awarded damages which duplicated those

already received, is not sufficient to

justify requiring a trial in the federal

court.

The judgment of the District Court

is affirmed.

ENTERED BY ORDER OF THE COURT

Clerk

A-16

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE,

NORTHERN DIVISION

Civil Action File No. 3-81-536

ROBERT FRANK LEE

VS. JUDGMENT

ROBERT LYNN STOUT

CITY OF KNOXVILLE, TENNESSEE

TRAILWAYS TENNESSEE LINES, INC

)

)

)

)

)

)

)

This action came on for trial before

the Court and a jury, Honorable Robert L.

Taylor, United States District Judge,

presiding, and the issues having been duly

tried and the jury having duly rendered

its verdict,

It is Order and Adjudged that the

plaintiff, Robert Frank Lee, recover of

the defendants, Sanford Lynn Stout and

City of Knoxville, Tennessee, the sum of

Sixty-five Thousand and no/100

($65,000.00) Dollars§S with interest

No. 3-81-536 Lee v. Stout, et al

thereon at the rate as provided by law,

and his costs of action.

It is further ordered and adjudged

that plaintiff, Robert Frank Lee, take

nothing from the defendant, Trailways

Tennessee Lines, Inc., that the action

against it be dismissed on the merits, and

that said defendant recover its costs of

action.

Dated at Knoxville, Tennessee, this

8th day of May, 1982.

Clerk of Court

By

Deputy Clerk

B-2

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

TENNESSEE, NORTHERN DIVISION

ROBERT FRANK LEE

v. "CIV. 3-81-536

SANFORD LYNN STOUT,

CITY OF KNOXVILLE,

TENNESSEE, TRAILWAYS

TENNESSEE LINES, INC.

ORDER

For the reasons stated in a

memorandum opinion this day passed to the

Clerk for filing, it is ORDERED that

defendant City of Knoxville's motion for

judgment notwithstanding the verdict be,

and the same hereby is, granted. It is

further ORDERED that defendant City of

Knoxville's motion for a new trial be, and

the same hereby is, conditionally granted.

It is further ORDERED that defendant

C-1

No. 3-81-536 Lee v. Stout, et al

Stout's motion for judgment

notwithstanding the verdict, or, in the

alternative for a new trial or remittitur

be, and the same hereby is, denied,

Enter: June 21, 1982

United States District Judge

C-2

2. i

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

ROBERT FRANK LEE

v. ' CLV, 3-81-536

SANFORD LYNN STOUT,

CITY OF KNOXVILLE,

TENNESSEE, TRAILWAYS

TENNESSEE LINES, INC.

MEMORANDUM

Defendants have filed a motion for

judgment notwithstanding the verdict, or,

in the alternative for a new trial or

remittitur. Although defendants have

joined in the motion and raise many

grounds which are applicable to both

defendants, their respective liabilities

are determined by different standards and,

as explained below, result in opposite

conclusions.

3

No. 3-81-536 Lee v. Stout, et al

Defendants' motion for judgment

notwithstanding the verdict is based on

the ground that there was insufficient

evidence to show that they violated any

duty owed plaintiff that proximately

caused plaintiff's injuries. As to

defendant Stout, this motion has no merit.

The jury's verdict is supported by

substantial evidence and the motion for

judgment notwithstanding the verdict is

denied.

As to the defendant City of

Knoxville, the motion for judgment

notwithstanding the verdict must be

granted since we are convinced after a

careful review of the proof presented at

trial that there is insufficient evidence

to sustain the jury's verdict. Both at

trial and in his brief in opposition to

the City's motion, plaintiff seeks to hold

C-4

Lee v. Stout, et al No. 3-81-536

the City liable for defendant Stout's

actions based on three theories. First,

that the City's regulations permit its

officers to act as private security guards

and that this policy caused the violation

of plaintiff's civil rights. We do not

believe that this policy is sufficient to

render the City liable since it exercised

no supervisory authority over defendant

Stout in his job as security guard at the

Trailways station. Kasanda v. Tomasch, 530

F.Supp. 1346 (N.0. Ohio, 1982), citing,

Monell v. Dept. of Social Services, 436

U.S. 658 (1978).

Second, plaintiff argues that the

City had a policy, or acquiesced in a

policy, of incarcerating persons without

an appearance before a magistrate. The

proof showed that at the time this

incident occurred the Knox County General

C-5

No. 3-81-536 Lee v. Stout, et al

Sessions Court judges allowed some persons

to be incarcerated without an appearance

before a judge. Bonds for minor offenses

were set at some predetermined amount,

Bonds for unusual offenses, as the one in

this case, were set over the phone. The

judges apparently used this procedure only

at night when no judge was on duty. The

proof also showed, and this is the

critical point, that the Knox County

General Sessions Court Judges are elected

by the Knox County voters and are not part

of the City government. We are thus unable

to find that a policy or custom of the

City caused the incident complained of.

Plaintiff may not hold the City liable on

this theory since the policy involved was

not that of the City. See Monell v. Dept.

of Social Services, supra.

C-6

Lee v. Stout, et al No. 3-81-536

Third, plaintiff contends that the

City knowingly acquiesced and implicitly

authorized defendant Stout's conduct by

allowing him to work when another shooting

incident involving him was under

investigation. The proof showed that the

other shooting incident occurred in

August, 1980 and that the shooting

involved in this case occurred on October

21, 1980. The proof showed further that

the conclusions of the internal

investigation were published in December,

1980. Under these circumstances we are of

the opinion that the City cannot be held

liable. In Hays v. Jefferson County, 668

F.2d 869 (6th Cir. 1982), the Court of

Appeals held that a municipality may be

held liable when it implicitly authorized,

approved or knowingly acquiesced in the

unconstitutional conduct. Since the

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No. 3-81-536 Lee v. Stout, et al

results of the police investigation were

unknown to City officials when this

incident occurred, we hold that the City

did not authorize, approve or knowingly

acquiesce in the shooting. The proof

showed that defendant Stout had been

trained in the proper police procedures,

particularly the procedures relating to

the use of his service revolver. This,

therefore, is not a case where a

municipality may be held liable for a

failure to train the police force. Id.

Since the evidence gainst the City is

insufficient to sustain the jury's

verdict, we grant the City's motion for

judgment notwithstanding the verdict. For

the same reasons, we conditionally grant

the City's motion for anew trial.

Fed.R.Civ.P. 50(c)(1).

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Lee v. Stout, et al No. 3-81-536

Defendant Stout raises ten grounds

in the motion for new trial, or in the

alternative for remittitur, as follows:

(1-5) That the verdict is so

excessive as to evince passion or

prejudice, and that the verdict is

speculative, contrary to the evidence,

contrary to the instructions of the Court,

contrary to the weight of the evidence and

is not supported by the evidence. These

grounds are without merit. Substantial

evidence supports the finding of liability

against defendant Stout.

(6) That the Court erred in failing

to ask the voir dire questions submitted

by defendants. The Court asked sufficient

questions to determine the competency of

the jurors. Furthermore, defendants did

not object to the voir dire. This ground

is denied.

C-9

No. 3-81-536 Lee v. Stout, et al

(7-8) That the Court erred in

refusing to allow the testimony of Rick

Harmon to be presented to the jury and in

threatening to hold defense counsel in

contempt. The Court understood that

defense counsel wished to introduce the

tape that the Court had ruled was

inadmissible. For this reason the Court

excluded Harmon's testimony. These grounds

are, therefore, denied.

(9) That the Court erred in refusing

to assume pendent jurisdiction. There was

no error in declining pendent

jurisdiction. Furthermore, defendant did

not ask the Court to assume pendent

jurisdiction.

(10) That the Court erred in

allowing the admission of the internal

security report involving the prior

shooting incident. In the opinion of the

C-10.

Lee v. Stout, et al No. 3-81-536

Court, the report was both competent and

relevant. This ground is, therefore,

denied.

For these reasons, it is ORDERED

that defendant City of Knoxville's motion

for judgment notwithstanding the verdict

be, and the same hereby is, granted. It is

further ORDERED that defendant City of

Knoxville's motion for a new trial be, and

the same hereby is, conditionally granted.

It is further ORDERED that defendant

Stout's motion for judgment

notwithstanding the verdict, or, in the

alternative for a new trial or remittitur

be, and the same hereby is, denied.

Order Accordingly.

United States District Judge

C-11