Opposition Brief — Griffin v. Hilke

Supreme Court, U.S,

Py FILED

APR 16 987

JOSEPH F. SPANIOL, JR.

onmnenenen

No. 86-1526

IN THE

Supreme Court of the United States

OcTOBER TERM, 1986

Eric A. GRIFFIN,

Petitioner,

vs.

Grecory HiL_ke and Francis STOLL,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals For the Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

James J. WILSON

City Counselor

*JULIAN L. BUSH

Assistant City Counselor

Room 314 City Hall

St. Louis, Missouri 63103

(314) 622-3361

Attorneys for Respondents

*Counsel of Record

St. Louis Law Printing Co.,Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Page

pe BOTT PURUEECCETINC TOT eee eer ii

SE SOD bb ds sds ck bseedb ened seine 1

Reasons Why The Petition Should Be Denied ......... 2

1. The Petition Does Not Raise Important And

Unsettled Issues And There Is No Contem-

porary Conflict Among The Circuits........ 2

2. The Qualified Immunity That Respondents

Enjoy Provides An Independent Ground

Upon Which The Judgment Of The Court Of

Appeals May Be Sustained, And The Issue Is

One That Should Be Ruled Upon By The

SE iw tak ak des du ones caheasas 7

3. The Court Did Not Depart From The Ac-

cepted And Usual Course Of Judicial Pro-

ceedings In Finding Prejudicial Error In Peti-

tioner’s Closing Argument ................ 13

IS ate re ee aae ewe 15

ii

TABLE OF AUTHORITIES

Page

Cases:

Allee v. Medrano, 416 U.S. 802 (1974) ............... 3

Alma Motor Co. v. Timken-Detroit Axle Company, 329

ie: 2) rrr ey reel Te reer re 12

American Construction Co. v. Jacksonville T. & K.R.

oe Ok reer rrrrrr rrr eT Tree 12

Ashcroft v. Mattis, 431 U.S. 171 (1977) .............. 9

Baker v. McCollan, 443 U.S. 137 (1979) ............... 4

Barr v. Mateo, 355 U.S. 171 (1959) ..........cecceees 12

Board of Regents v. Roth, 408 U.S. 564 (1972) ........ 10

Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982) ...... 6

Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) ............ 4,5,6

Chardon v. Fumero Soto, 462 U.S. 650 (1983)......... 5

City of Oklahoma City v. Tuttle, 471 U.S. ___., 85

L.Ed.2d 791, 105 S.Ct. 2427 (1985) ...........-- 7,8

City of Springfield v. Kibbe, 55 U.S.L.W. 4239 (1987) . . 4

Clark v. Beville, 730 F.2d 739 (11th Cir. 1984)......... 8

Coleman v. PACCAR, Inc., 424 U.S. 1301 (1976) ..... 12

Coon v. Ledbetter, 780 F.2d 1158 (Sth Cir. 1986) ...... 9

Daniels v. Williams, 474 U.S. ___., 88 L.Ed.2d 662,

DRDO RGGI sx nn nase cc cnecenntacansaces 5, 6

Davidson v. Cannon, 474 U.S. ___., 88 L.Ed.2d 677,

| tise 6; SePerrerererrerc rrr ort? 5, 6

oo

ill

Davis v. Scherer, 468 U.S. 183 (1984) ................

Davis v. United States, 417 U.S. 934 (1974) ...........

Emory v. Duckworth, 555 F.Supp. 985 (N.D.Ind. 1983)

Escamilla v. City of Santa Ana, 769 F.2d 266 (9th Cir.

Ee re rer

Fernandez v. Chardon, 681 F.2d 42 (Ist Cir. 1982) .....

Fernandez v. Leonard, 784 F.2d 1209 (ist Cir. 1986) ...

Hague v. CIO, 307 U.S. 496 (1939) ..............005.

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............

Haygood v. Younger, 718 F.2d 1472 (9th Cir. 1983) ....

Hewitt v. Helms, 459 U.S. 460 (1983) ................

Hirst v. Gertzen, 676 F.2d 1252 (9th Cir. 1982) ........

Hobson v. Wilson, 556 F.Supp. 1157 (D.C. 1982)......

Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978) ........

Jones v. Marshall, 528 F.2d 132 (2nd Cir. 1975) .......

Justice v. Dennis, 793 F.2d 573 (4th Cir. eer

Kehr v. Smith Barney, Upham & Harris Co., 736 F.2d

ee Laws eho ene ce ceawe eas

Malley v. Briggs, 475 U.S. ____, 89 L.Ed.2d 271, 106

EE er ee eee

- Massey v. Smith, 555 F.Supp. 743 (N.D. Ind. 1983) ....

Mattis v. Schnarr, 547 F.2d 1007 (8th Cir. 1976) .......

Mitchell v. Forsyth, 472 U.S. ___, 86 L.Ed.2d 411,

we eS re

10

10

14

13

iv

Monell v. Dept. of Social Services, 436 U.S. 658 (1978) 3, 4, 6, 7

New York Central Railroad Company v. Johnson, 279

OF Se rrr rere tron rrr rT 15

Parratt v. Taylor, 451 U.S. 527 (1981) ............... 5, 6, 11

Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986) .... 14

Putnam v. Gerloff, 639 F.2d 415 (8th Cir. 1981) ....... 6

Regents of University of Michigan v. Ewing, 474 U.S.

__., 88 L.Ed.2d 523, 106 S.Ct. 507 (1985) ....... 10

Risner v. Duckworth, 562 F.Supp. 378 (N.D. Ind. 1983) 6

Rizzo v. Goode, 423 U.S. 362 (1976) ........... 2, 3, 4, 5, 6, 7

Rochin v. California, 342 U.S. 165 (1952) ............ 10

Roy v. Employers Mutual Casualty Company, 368 F.2d

es SOs Seaview ideale Cau shaaseess 14

S.S. Monrosa v. Carbon Black Export, 359 U.S. 180

GRR Em tee ry eo Sr pee ee 11

Smith v. Heath, 691 F.2d 220 (6th Cir. 1982) .......... 5

Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985) ...... 11

Tennessee v. Garner, 471 U.S. ___., 85 L.Ed.2d 1, 105

lee IE och cxcvaneseu se eedenegs reas 8,9

Ware v. Reed, 709 F.2d 345 (Sth Cir. 1983) ........... 5

Washington v. Starke, 626 F.Supp. 1149 (W.D. Mich.

1986), appeal dismissed, 791 F.2d 936 (6th Cir.

SE Fs giGks he aed eae a hk ce teed bak ea ees 11

Westbrook v. General Tire & Rubber Co., 754 F.2d

Oe no ine an 13

ee]

~ Whitney v. Albers, 475 U.S. ___, 89 L.Ed.2d 251, 106

Did, See ys cobs 6s abbas bebe 10

Wiley v. Memphis Police Dept., 548 F.2d 1247 (6th Cir.

NG tds COME. GR, GIN SI. Paes 6 6 Sp on dk invsdaeen 9

Constitutional and Statutory Provisions:

ae ee FO US errr rr? Pree Ty. 2, 10

Me US BE a eek sk ck bh dex bea cennden 2, 3, 7, 10, 14

Miscellaneous:

M. Avery & D. Rudovsky, Police Misconduct: Law and

Litigation §3.5(a) (2nd Ed. 1985) ............... 15

Newman, Suing the Lawbreakers: Proposals to

Strengthen The Section 1983 Damage Remedy For

Law Enforcers’ Misconduct, 87 Yale L.J. 447

CREE £6 ko alae dun ebb see eee eee 14-15

Project, Suing the Police in Federal Court, Yale L.J.

Fe GIT Sx kvakeseaniren Peer ee eee 15

No. 86-1526

IN THE

Supreme Court of the United States

OcTOBER TERM, 1986

Eric A. GRIFFIN,

Petitioner,

VS.

GREGORY HILKE and FRANCIS STOLL,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals For the Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

The respondents Gregory Hilke and Francis Stoll respectfully

request that this Court deny the petition for writ of certiorari,

seeking review of the Eighth Circuit opinion in this case. That

opinion is reported at 804 F.2d 1052 (1986).

STATEMENT OF THE CASE

It would unduly lengthen this brief to correct each and every

inaccuracy and omission contained in petitioner’s statement of

the complicated facts of this case. Instead, respondents incor-

porate by reference the statement of facts in the opinion below

(Pet. App. 2a-3a), which is fair and evenhanded.

iin

Po

REASONS WHY THE PETITION SHOULD BE DENIED

1. The Petition Does Not Raise Important And Unsettled

Issues And There Is No Contemporary Conflict Among The

Circuits.

a. Petitioner asks this Court to grant his petition to deter-

mine whether a remote actor may be held liable pursuant to 42

U.S.C. §1983 for constitutional injuries directly inflicted by

another where such constitutional injuries would not have been

suffered but for the remote actor’s negligence. Specifically, he

argues that respondent Stoll can be held liable for a seizure

made by respondent Hilke partly in reliance upon the com-

munication of inaccurate information by Stoll, where Stoll’s

miscommunication was arguaby the result of Stoll’s negligent

evaluation of the situation that confronted him. It can scarcely

be denied that this issue is an important one; however, if the

issue has not been fully settled by the Court’s earlier pro-

nouncements, it has been all but settled.

There have been two lines of cases that have focused on §1983

liability of remote actors. One line, represented most pro-

minently by Rizzo v. Goode, 423 U.S. 362 (1976), considers the

liability of public employees who supervise other public

employees for the constitutional torts committed by their super-

visors. Significantly, it appears that the claimed constitutional

violations in Rizzo were Fourth Amendment ones just as in the

case at bar. The Rizzo district court found that, as a result of

defendant supervisors’ decision not to change police pro-

cedures, constitutional violations would occur. /d. 423 U.S. at

371. Plaintiff argued that defendants’ failure to act breached a

constitutional duty that defendants were obligated to acquit. /d.

423 U.S. at 376. The Court rejected plaintiff’s theory, con-

trasting the case before the Court with Hague v. C/O, 307 U.S.

496 (1959), noting that liability was imposed on the remote ac-

tors in Hague for ‘‘the adoption and enforcenient of deliberate

policies...’’, Rizzo, 423 U.S. at 3/4 (emphasis added); with

A Tn |

am

Allee v. Medrano, 416 U.S. 802 (1974), where the named defen-

dants themselves engaged in an ‘‘intentional, concerted, and in-

deed conspiratorial effort...’’, Rizzo, 423 U.S. at 375 (em-

phasis added); and with school desegregation cases where the

defendants were officials who were ‘‘found by their own con-

duct’’ to have denied plaintiffs’ rights. Rizzo, 423 U.S. at 377.

The Court’s ruling in Rizzo, as fairly characterized by the

dissenting justices, was that an ‘‘official is not subject to the

strictures of 42 U.S.C. §1983 unless he directs the deprivation

of constitutional rights.’’ Rizzo, 423 U.S. 384 (Blackmun, J.,

dissenting).

Another line of cases dealing with the liability of remote ac-

tors is Monell v. Dept. of Social Services, 436 U.S. 658 (1978),

and Monell’s progeny. Such cases consider whether a city may

be liable under $1983 where the city’s policy causes a constitu-

tional injury. Because the injury is immediately caused by a

natural person, the city’s position is normally that of a remote

actor. Indeed, Moneil itself implicitly recognizes the affinity

that cases involving municipal liability have for cases involving

supervisory liability by the opinion’s reference to Rizzo. See

Monell, 436 U.S. at 693 n.58.

Justice O’Connor, en behalf of four justices, recently sum-

marized the Monell line of cases as follows:

**Given the importance, under §1983, of distinguishing

between direct and vicarious liability, the Court repeatedly

has stressed the need to find a direct causal connection bet-

ween municipal conduct and the constitutional depriva-

tion. See e.g., Oklahoma City v. Tuttle, 471 U.S. at

824-825 n.8 (requiring ‘’affirmative link’? between

municipal policy and constitutional violation); Polk Coun-

ty v. Dodson, 454 U.S. 312 (1981) (municipal policy must

be ‘‘moving force’’ behind constitutional deprivation). In

Monell itself, the policy at issue commanded the depriva-

tion of constitutional rights.’’

nay een

City of Springfield v. Kibbe, 55 U.S.L.W. 4239, 4242 (1987)

(O’Connor, J., dissenting).

Justice O’Connor’s application of Monell principles in Kibbe

is especially interesting for analysis of the case sought to be

brought before the bar of this Court because both cases are

Fourth Amendment cases involving the use of deadly force to

prevent the escape of a suspect. Justice O’Connor distrusted

imposing §1983 liability where there was only a remove connec-

tion, for otherwise the distinction between ‘‘vicarious liability

and liability predicated on the municipality’s own constitutional

violations’ would be eviscerated. Kibbe, 55 U.S.L.W. at 4242.

By analogy to traditional tort principles where ‘‘the law has

been willing to tract more distant causation when there is a

cognitive component to the defendant’s fault than when the

defendant’s conduct results from simple or heightened

negligence’’, id., she concluded that such liability might be im-

posed only where there was ‘‘a reckiess disregard for or

deliberate indifference to the rights of persons within the city’s

domain’’. /d.

The principles established in Rizzo and in Monell and its pro-

geny are equally applicable to the case at bar, and the Eighth

Circuit’s ruling is consistent with them. Stoll did not

unreasonably seize petitioner and Stoll did not command Hilke

to commit an unreasonable seizure of petitioner. Nor did Stoll

act with a reckless disregard or with a deliberate indifference to

the rights of anyone. Stoll may have made a mistake, and his

mistake may have been the result of a failure to exercise due

care, but it is not unconstitutional to be negligent. See Baker v.

McCollan, 443 U.S. 137, 146 (1979) (‘‘Section 1983 imposes

liability for violations of rights protected by the Constitution,

not for violations of duties of care arising out of tort law.’’).

b. Petitioner also urges certiorari on the basis of a conflict

between the circuits. As conflicts go, however, there is not

much of aconflict. Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972),

=a Po

which petitioner cites three times, is a case recognized as re-

jected by the Court’s opinion in Rizzo. See Rizzo, 423 U.S. at

385 n.2. (Blackmun, J., dissenting). Ware v. Reed, 709 F.2d

345 (Sth Cir. 1983) relied upon Byrd. Id., 709 F.2d at 353. In

Smith v. Heath, 691 F.2d 220 (6th Cir. 1982) liability was impos-

ed on an officer for ‘‘willfully’’ violating constitutional rights.

Id. at 221. Defendant ‘‘personally participated in the [unlawful]

search. ..and was in charge’’, id. at 224; defendant personally

made an unlawful entry, id. at 225; and the court believed that

he directed his subordinates ‘‘to interfere with the civil rights of

another.’’ Jd. at 224. Haygood v. Younger, 718 F.2d 1472 (9th

Cir. 1983) does state that an action for deprivation of civil rights

can rest on negligent conduct. See Haygood, 718 F.2d at 1478.

However, the statement is made with respect to the due process

simpliciter claim, and must be regarded as overruled by Daniels

v. Williams, 474 U.S. ___, 88 L.Ed.2d 662, 106 S.Ct. 662

(1986); and Davidson v. Cannon, 474 U.S. ___, 88 L.Ed.2d

677, 683, 106 S:Ct. 608 (1986) (‘‘the protection of the Due Pro-

cess Clause, whether procedural or substantive, are just not trig-

gered by lack of due cause by prison officials’). Insofar as the

Eighth Amendment claim, Haygood requires more than

negligence: ‘‘deliberate indifference’’. Haygood, 718 F.2d

1482-1483. In any case, the Haygood opinion relied upon by

petitioner was vacated, 729 F.2d 613 (9th Cir. 1984), and was

the subject of a new opinion published at 769 F.2d 1350 (9th

Cir. en banc 1985). The new opinion found a due process

simpliciter violation because the officials intentionally denied

the plaintiff a hearing. Fernandez v. Chardon, 681 F.2d 42 (lst

Dir. 1982)' does indeed include the dictum that §1983 liability

may be grounded on negligence alone, a proposition for which

it cites (erroneously) Parratt v. Taylor. Fernandez, 681 F.2d at

55. But the acutal basis for imposing liability on the supervisors

' This Court granted certiorari in Fernandez on a statute of limita-

tion issue on which it upheld the First Circuit. See Chardon vy.

Fumero Soto, 462 U.S. 650 (1983).

nmi

was that the supervisors had been personally involved in policies

that they knew would result in persons losing their jobs because of

their political affiliation and not on the basis of the supervisors’

negligence. /d., 681 F.2d at 56-57. Hirst v. Gertzen, 676 F.2d

1252 (9th Cir. 1982) is likewise based on an erroneous inter-

pretation of Parratt. Hirst, 676 F.2d at 1263. In any case, as a

§1983 claim predicated on the negligence of jail officials it, too,

is inconsistent with Daniels and Davidson.’ Indeed, the Ninth

Circuit has recently itself recognized that the Hirst holding was

based upon ‘‘an obsolete foundation’’. See Escamilla v. City of

Santa Ana, 769 F.2d 266, 270 n.1 (9th Cir. 1986). Johnson v.

Duffy, 588 F.2d 740 (9th Cir. 1978), a procedural due process

case, erroneously recognized the possibility of vicarious liabili-

ty, 588 F.2d at 744, and was decided before Rizzo, Monell,

Daniels and Davidson. More recently, the Ninth Circuit has

recognized that a claim which ‘“‘amounts to no more than a

claim of negligence...is no longer actionable under section

1983’’. Escamilla v. City of Santa Ana, op cit, 796 F.2d at 270.

Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982), affirmed the

District Court’s grant of a new trial on behalf of the defendants

who had not actively participated in striking plaintiff; the dic-

tum cited by petitioner is also based upon the repudiated opi-

nion in Byrd v. Brishke. See Bruner, 684 F.2d at 425-426. Put-

nam v. Gerloff, 639 F.2d 415 (8th Cir. 1981) is yet another case

based upon Byrd v. Brishke; see Putnam, 639 F.2d at 423; it is

not based on a negligence theory; and even if it was, as a due

process simpliciter case arising in a prison context, the opinion

is obsolete after Daniels and Davidson. In any case, conflicts

within a circuit are a disfavored basis for granting certiorari. See

Davis v. United States, 417 U.S. 333, 340 (1974).

? The opinion was not well thought of. There was a vigorous dis-

sent, Hirst, 676 F.2d at 1265-1271, and the opinion was criticized in

Massey v. Smith, 555 F.Supp. 743, 747 (N.D.Ind. 1983), in Emory v.

Duckworth, 555 F.Supp. 985, 989-990 (N.D.Ind. 1983), and in Rigner

v. Duckworth, 562 F.Supp. 378, 381-382 (N.D.Ind. 1983).

—

c. The decisions of the Court in Rizzo and in Monell and

its progeny have given the courts oi appeals sufficient guidance

for resolution of cases involving remote liability under §1983.

Not surprisingly, analysis shows that there is no contemporary

conflict in the circuits on the issue. It would be improvident to

grant a writ of certiorari for yet another opinion on the issue of

whether negligence is sufficient to impose §1983 liability upon a

remote actor.

2. The Qualified Immunity That Respondents Enjoy Pro-

vides An Independent Ground Upon Which The Judgment Of

The Court Of Appeals May Be Sustained, And The Issue Is One

That Should Be Ruled Upon By The Lower Courts.

Petitioner requests the Court to address the issue of whether

respondents are protected by the doctrine of qualified immuni-

ty. Petitioner does not argue that the issue presents any of the

considerations governing review on certiorari set forth in

Supreme Court Rule 17; evidently, petitioner seeks only to

preserve the issue in the event that the Court should grant the

petition on the grounds put forward in support of the other

questions presented. Oddly, it is considerations that pertain to

the qualified immunity defense that present one of the most tell-

ing arguments why the petition should not be granted.

**[Gjovernmental officials performing discretionary func-

tions are generally shielded from liability for civil damages in-

sofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.”’ Harlow v. Fitzgerald, 457 U.S. 800, 816

(1982). This is a doctrine that is applicable to police officers.

Malley v. Briggs, 475 U.S. ___., 89 L.Ed.2d 271, 106 S.Ct. 1092

(1986). Though petitioner pretends that footnote 1 of the

Court’s opinion in City of Oklahoma City v. Tuttle, 471 U.S.

—___., 85 L.Ed.2d 791, 105 S.Ct. 2427 (1985) suggests that

Harlow may have eliminated the qualified immunity defense in

excessive force cases, there is nothing said in that footnote that

pa, eas

even hints that this is so. More to the point is footnote 4, where

the Court notes that it ‘‘has never held that every instance of use

of ‘unreasonable force’ in effecting an arrest constitutes a viola-

tion of the Fourth Amendment; nor has this Court held under

circumstances such as these that there has been a deprivation of

life ‘without due process of law.’ ’’ Tuttle, 85 L.Ed.2d at 800

n.4. The Court recognized that the facts in Tuttle were ‘‘very

similar’’ to the facts in Tennessee v. Garner, 471 U.S. ___, 85

L.Ed.2d 1, 105 S.Ct. 1694 (1985), in which the officer who com-

mitted the unconstitutional deadly force seizure was acquitted

on the basis of qualified immunity. The facts are also very

similar to the facts in the case at bar, which is also based on a

Tennessee v. Garner theory.

Petitioner cites several cases for the proposition that it is

clearly established that the use of excessive force is unconstitu-

tional. Clark v. Beville, 730 F.2d 739 (11th Cir. 1984), however,

says no such thing. Rather, the court notes that ‘‘Beville [the

defendant] does not dispute that it is clearly established that a

police officer may not apply undue force in effecting an arrest

..”? Clark, 730 F.2d at 740 (emphasis added). Fernandez v.

Leonard, 784 F.2d 1209 (ist Cir. 1986), does suggest that by

1976 there was a clearly established constitutional right to be

free of ‘‘excessive force’’, but excessive force is defined in terms

of force that ‘‘is so.excessive and brutal that it ‘shocks the cons-

cience.’ ’’ Fernandez, 784 F.2d at 1216. The opinion also sug-

gests’ that the right to be free from unreasonable seizures was

clearly established in 1976. Jd. 784 F.2d at 1217. Since the plain

language of the Fourth Amendment forbids unreasonable

' seizures in those very terms, one would have thougth that such a

right would have been clearly established the moment that the

amendment was ratified. In any case, the immunity issue in the

present case is whether it was clearly established that the use of

> The opinion has been criticized for its lack of clarity. See Justice

v. Dennis, 793 F.2d 573, 577 (4th Cir. 1986).

mn, ge

deadly force to apprehend nondangerous felons was

unreasonable in Fourth Amendment terms at the time that peti-

tioner was seized. The Fernandez court seems to grudgingly

recognize that the unreasonableness of such force was not clear-

ly established until 1985. Jd. 784 F.2d at 1217 n.3. Coon v.

Ledbetter, 780 F.2d 1158, 1164 (Sth Cir. 1986), states that the

use of excessive force does violate clearly established rights, but

does not cite any authority for that proposition, and the opinion

does not say that the right was clearly established in 1978, the

date of the incident in the case at bar.

It was not clearly established in February of 1978 that the use

of deadly force to apprehend nondangerous suspect is an

unreasonable seizure. Petitioner cites the four to three opinion

Mattis v. Schnarr, 547 F.2d 1007 (8th Cir. 1976) as séttling that

doctrine in the Eighth Circuit, but he fails to remind the Court

that it had vacated that opinion before the incident in question!

See Ashcroft v. Mattis, 431 U.S. 171 (1977). Indeed, the only

appellate decisions that had considered the question up to the

time of the incident had found such seizures to be constitu-

tional. See Jones v. Marshall, 528 F.2d 132 (2nd Cir. 1975), and

Wiley v. Memphis Police Dept., 548 F.2d 1247 (6th Cir. 1977),

cert. den. 431 U.S. 968. It was not until the Court’s 1985 opi-

nion in Tennessee v. Garner, op. cit., that the Court declared

that the shooting of nondangerous felons was unconstitutional.

The Court noted that as late as 1985 such seizures were approv-

ed in approximately one-half the states, id., 85 L.Ed.2d 12-13,

and that it ‘‘cannot be said that there is a constant or over-

whelming trend away from the common-law rule.’’ /d., 85

1.Ed.2d at 14. Indeed, three justices dissented from the holding

that such seizures were unconstitutional. It is clear that it was

not clearly established in February of 1978 that the shooting of

nandangerous fleeing felons was unconstitutional.

Petitioner relies upon the fact that the police commissioners

who employed respondents had adopted an internal policy for-

bidding their employees from using deadly force in such cir-

— ee

cumstances. However, this Court held in Davis v. Scherer, 468

U.S. 183 (1984) that ‘‘[o]fficials sued for constitutional viola-

tions do not lose their qualified immunity merely becauae their

conduct violates some statutory or administrative regulation.”’

Id., 468 U.S. at 194. Petitioner attempts to evade this structure

by resorting to the language in Davis ‘‘Appellee makes no claim

that the appellants’ violation of the state regulation either is

itself actionable under §1983 or bears upon the claim of con-

stitutional right that appellee asserts under §1983’’, emphasizing

the last clause. Davis v. Scherer, supra, 468 U.S. at 193.

Petitioner completely misapprehends the meaning of that

passage. In the Court’s footnote to the quoted phrase it ex-

plains: ‘‘State law may bear upon a claim under the due process

clause when the property interests protected by the Fourteenth

Amendment are created by state law . . .”’ citing Board of

Regents v. Roth, 408 U.S. 564 (1972). Jd., 468 U.S. at 193 n.11.

Liberty interests, too, have occasionally been held to be created

by state law, although it appears that the Court has found such

interests primarily in the context of prison cases. See Hewitt v.

Helms, 459 U.S. 460 (1983). However, while the Due Process

Clause gives protection to state-created liberty and property in-

terests in its procedural aspect, the protection if affords liberty

and property in its substantive aspect is very much more

restricted. As Justice Powell recently pointed out: ‘*While pro-

perty interests are protected by procedural due process even

thought the interest is derived from state law rather than the

Constitution, Board of Regents v. Roth, 408 U.S. 564, 577, 33

L.Ed.2d 548, 92 S.Ct. 2701 (1972), substantive due process

rights are created only by the Constitution.’’ Regents of

University of Michigan v. Ewing, 474 U.S. ___, 88 L.Ed.2d

523, 535, 106 S.Ct. 507 (1985) (Powell, J., concurring). The

same is true of liberty interests. Substantive due process pro-

tects only liberty interests that flow from either those portions

of the Bill of Rights deemed incorporated, or those whose infr-

ingement is such as to shock the conscience. See Rochin v.

California, 342 U.S. 165 (1952), quoted in Whitley v. Albers,

ro

es TE die

475 U.S. ___, 89 L.Ed.2d 251, 265, 106 S.Ct. 1078 (1986).

Thus, petitioner attempt to evade the strictures of Davis fail

because any liberty interest that may have been created by the

regulation is one protected only by procedural due process.‘

Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985), upon which

petitioner relies, demonstrates the fatal misunderstanding from

which petitioner’s argument suffers. Spruytte was a procedural

due process case where the court found that plaintiff prisoner

had a property interest conferred by state law of which he could

be deprived only if the procedural requirements were observed.

Id., 753 F.2d at 506-508. Significantly, the discussion in

Spruytte is relied upon in Washington v. Starke, 626 F.Supp

1149 (W.D. Mich. 1986), appeal dismissed 791 F.2d 936 (6th

Cir. 1986), a case remarkably similar to the case at bar for in

both cases defendant police officers used deadly force in viola-

tion of internal regulations. The Court cited Spruytte in its opi-

nion granting summary judgment for the defendants on the

basis that the unconstitutionality of the fleeing felon rule had

not been established in 1982.

The real significance, then, of the qualified immunity issue is

that it provides an important reason why certiorari should not

be granted to review the other questions presented by the peti-

tion. The Court has suggested that a conflict may not be a suffi-

cient ground to grant certiorari where the Court may decide the

case on another ground and thus not reach the issue on which

there purportedly is a conflict; see, e.g., S.S. Monrosa v. Car-

bon Black Export, 359 U.S. 180 (1959); and has likewise refused

to decide constitutional issues where there are present non-

constitutional issues which might alone serve as an independent

‘ If this were a procedural due process case, petitioner’s case would

fail under the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981) for

Missouri makes available a post-deprivation remedy for unlawful ar-

rests.

‘

ae

ground for the disposition of the case. See Alma Motor Co. v.

Timken-Detroit Axle Company, 329 U.S. 129 (1946).

This case is in just that posture. The qualified immunity issue

is not a close one and it is highly likely that the Court would sus-

tain the Eighth Circuit’s opinion reversing the judgments

entered against respondents on this independent ground not in-

volving a constitutional issue or a conflict.’ Indeed, because

court below did not reach the qualified immunity issue, Pet.

App. p. 10a, the posture of this petition bears a close

resemblance to that presented by Barr v. Mateo, 355 U.S. 171

(1959), where the Court refused to review an important question

and ordered the court of appeals to pass upon an alternative

argument - qualified privilege - not passed upon below.

There is another closely related reason why a grant of cer-

tiorari would be improvident. Petitioner did not request that

the mandate of the court of appeals be stayed. Accordingly, the

mandate has issued, the judgment of the district court has been

vacated, and respondent Hilke’s motion for summary judgment

on the basis of his qualified immunity defense is now under sub-

mission in the district court. Pronouncements by the Court that

have extended over many decades disfavor granting certiorari in

cases where the judgment below is not final. See, e.g. American

Construction Co. v. Jacksonville T. & K.R. Co., 148 U.S. 372,

384 (1893); and Coleman v. PACCAR, Inc., 424 U.S. 1301,

1304 n.* (1976) (Rehnquist, J.). These considerations are com-

pelling in the circumstances presented by the instant case.

Respondent’s motion for summary judgment may be ruled

upon while the Court is considering whether petitioner’s peti-

tion is granted; certainly it will be ruled upon before the Court

rules on the merits should the Court accept the case. In the

* In fact, as is argued in respondent Hilke’s cross-petition filed con-

temporaneously with the brief, the qualified immunity defense is one

that would authorize relief greater relief that the appellate court af-

forded him: entry of judgment in his favor.

i

i

i

i

ain Mes

meantime, that ruling may be appealed to the court of appeals,

see Mitchell v. Forsyth, 472 U.S. ___, 86 L.Ed.2d 411, 105

S.Ct. ____ (1985), or it may be tried, and be appealed after trial.

There is little sense in expending the Court’s resources in

deciding the case at this stage.

3. The Court Did Not Depart From The Accepted And Usual

Course Of Judicial Proceedings In Finding Prejudicial Error In

Petitioner’s Closing Argument.

Petitioner claims that the Court ‘‘violated’’ Rule 103,

Fed.R.Evid., by finding reversible error in his final argument to

the jury, and accuses the court of appeals as having so far

departed from the accepted and usual course of judicial pro-

cedures as to warrant this Court to exercise its power of supervi-

sion.

The court of appeals did not, of course, violate Rule 103,

Fed.R.Evid. By definition, the rules of evidence govern the ad-

mission of evidence, and argument is not evidence.

Technicalities notwithstanding, respondents agree that the

customary rules as to final argument require objection, absent

plain error, and that plain error requires prejudice. However,

respondents plainly made an objection; and the objection was

overruled. Pet. App. 23a. Petitioner objects to the court of ap-

peals considering portions of his closing argument that took

place just before and just after respondents’ objection, but his

own authorities think it proper. In Westbrook v. General Tire

& Rubber Co., 754 F.2d 1233, 1241 (10th Cir. 1985), the court

reversed, declining to accept plaintiff’s argument that defendant

had objected to only one part of the argument: ‘‘We cannot

‘look at the objected material in isolation, however. A review of

the entire argument reveals that while [defendant] objected to

just one community conscience statement, similar arguments

pervaded [plaintiff’s] argument.’’ Likewise, in Kehr v. Smith

Barney, Upham & Harris Co., 736 F.2d 1283, 1286 (9th Cir.

1984), the court observed that ‘‘constant objections are certain-

—

ly not required, as they could antagonize the jury . . .’’ And so it

is here. After the trial court not only overruled their objection

but pronounced petitioner’s argument ‘‘appropriate’’,

respondents’ were under no obligation to risk the jury’s wrath

when petitioner returned to the theme moments later.

Petitioner also argues that the suggestion that ‘‘the govern-

ment’’ would pay the verdict returned against respondents was

not prejudicial. One would think that it is intuitively obvious

that there would be prejudice any time a jury is advised that a

deep pocket impersonal corporation, public or private, would

pay a judgiment rendered against individuals. Indeed, on con-

sideration, the scattering of the cases cited by petitioner do not

say otherwise. Perrin v. Anderson, 784 F.1d 1040 (10th Cir.

1986), did nothing more than observe that, absent a claim for

punitive damages, it is error to point out to the jury that the in-

dividual defendant, and not the state employer, must pay for

any judgment rendered against him. Perrin, 784 F.2d at 1047).

Significantly, the court treated the issue of indemnity by the

government as equivalent to insurance. Jd. Hobson v. Wilson,

556 F.Supp. 1157 (D.C. 1982), mod. in other respects at 737

F.2d. 1 (D.C. Cir. 1984), does no more that say that the defen-

dants were not entitled to an instruction that the government

would not pay a judgment entered against them, where there

was no trace of evidence placed before the jury that the govern-

ment might pay the judgment. Hobson, 556 F.Supp at 1189.

The implication of the court’s opinion - that such an instruction

would be called for if such evidence had been placed before the

jury - is significant because that is exactly what happened in the

case below. In Roy v. Employers Mutual Casualty Company,

368 F.2d 902, 905 (Sth Cir. 1966), the defendant was the in-

surance company itself.

Those who have considered the issue have concluded that

jury’s are more likely to return §1983 verdicts against local

governments than they are to return verdicts against individual

public officials. See Newman, Suing the Lawbreakers: Pro-

a

ee

posals to Strengthen The Section 1983 Damage Remedy for Law

Enforcers’ Misconduct: 87 Yale L.J. 447 (1978); Project, Suing

the Police in Federal Court, Yale L.J. 781, 800-802 (1979); and

M. Avery & D. Rudovsky, Police Misconduct: Law and Litiga-

tion, §3.5(a) (2d.Ed. 1985). Thus, common sense and con-

sidered opinion agree.

In New York Central Railroad Company v. Johnson, 279

U.S. 310 (1929), this Court reversed a judgment where there was

prejudice in closing argument, noting that ‘‘[t]he failure of the

trial judge to sustain [defendant’s] objection, or otherwise to

make certain that the jury would disregard the appeal, could on-

ly have left them with the impression that they might be in-

fluenced by it in rendering their verdict, and thus its prejudicial

effect was enhanced.’’ /d., 279 U.S. at 218. And so it is here:

when the district judge not only overruled respondents’ objec-

tion, but pronounced petitioner’s argument ‘‘appropriate’’,

Pet. App 23a, the prejudice was enhanced. Far from departing

from the accepted and usual course of judicial proceedings, the

court of appeals faithfully foliowed this Court’s example.

CONCLUSION

For these reasons, the petition for writ of certiorari should be

denied.

Respectfully submitted,

JAMES J. WILSON

City Counselor

*JULIAN L. BUSH

Assistant City Counselor

Room 314 City Hall

St. Louis, MO 63103

622-3361

Attorneys for Respondents

*Counsel of Record