# Opposition Brief — Griffin v. Hilke

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 482 U.S. 914

## Text

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1995%3A2. Public record. Not legal advice.