Opposition Brief — Harris v. City of Miami
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el
Supreme Court, U.S, .
‘ FILED
3 DEC 13 1986
No. 86-640 ——
In The CLERK
Supreme Court of the United States
October Term, 1986
-—
GENEVA HARRIS, as Personal Representative of
the Estate of Doretha a/k/a Dorothea Rolle, Deceased,
Petitioner,
vs,
THE CITY OF MIAMI,
Respondent.
sy
On Petition For Writ of Certiorari From
The Florida Third District Court of Appeal
ry
BRIEF FOR THE RESPONDENT
IN OPPOSITION
sy.
Ww
Tomas Martix Prriavm, Eso.
Counsel of Record
Smrox, Scutnpier, Hurst
& SanpBErRG
1492 South Miami Avenue
Miami, Florida 33130
Telephone: (305) 358-8611
AND
Lue AtLex Dovenerry,
City Attorney
Co-Counsel of Record
169 East Flagler Street
Miami, Florida 33131
Telephone: (305) 579-6700
Attorneys for City of Miami
COCKLE LAW BRIEF PRINTING CO.. (800) 225-6064
vr call collect (402) 342-2831
a al ape ‘
ww
QUESTION PRESENTED
Does the United States Constitution require each lo-
eal government in the United States to adopt an admin-
istrative rule formally authorizing their police officers
to abandon hot pursuit of fleeing felons when, in the offi-
cers’ judgment, the continuation of pursuit would be un-
duly dangerous?
TABLE OF CONTENTS
Qumss10n. Seen eeeD i
TABLE OF CONTENTS talaieliieiaiil i
TABLE OF CITATIONS 7 est
TABLE OF AUTHORITIES vi
OPINION BELOW . - : ]
Pi) 3 oy | ae aaa ininiiatbdiassiiedead Oa
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED IN THIS CASE 2
STATEMENT OF THE CASE 2
SUMMARY OF ARGUMENT oe 7
ARGU MENT eva . ‘ 7
CONCLUSION 23
APPENDIX ouea | erro nH: App. 1
ili
TABLE OF CITATIONS
Page(s)
CasE
Baker v. McCollan, 443 U.S. 137 (1979) ccccccecccccscecscsossssseee 15, 17
Banks v. California, 395 U.S. TOS (1969) nnn eeeeeeseeene 11
Bowers v. De Vito, 686 F.2d 616, 618 (7th Cir. 1982)... 21
Cannon v. Taylor, 782 F.2d 947 (11th Cir. 1986) ......... 20, 21
City of Orlando v. Cameron, 264 So.2d 421 (Fla.
SUNSET EE 12
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) 9
Daniels v. Williams, 474 U.S. —, 106 S.Ct. 662,
88 L.Ed. 662 (1986) ........ eA 6, 14, 16, 17, 18, 22, 23
David v. State, 369 So.2d 943 (Fla. 1979) 0. 12
Davidson v. Cannon, — U.S. —, 106 S.Ct. 668, 670-71
So A ee ee a —
Davis v. Scherer, 468 U.S. 183, 194 (1984) ... 17
Ellsworth v. City of Racine, 774 F.2d 182 (7th
Escamilla v. City of Santa Ana, 796 F.2d 266 (9th
tie. 1960) 21 ee Pe a ae a 22
Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285,
292, 50 L.Ed.2d 251 (1976) ...... Dirt 17
Flynt v. Ohio, 451 U.S. 619 (1981) - 10
Ford Motors Co. v. Zikus. 401 So.2d 1341 (Fla. 1981) 12
Galas v. McKee, 801 F.2d 200 (6th Cir. 1986) 20
Garcia v. Cedars of Lebanon Hospital, 444 So.2d
538 (Fla. 3d DCA 1984) _.. 12
Grandstaff v. City of Borger, 767 F.2d 161 (5th
ET AE ES EE aye 19
Higdon v. Metropolitan Dade County, 446 So.2d
203 (Fla. 3d DCA 1984) .... ats Lacie 12
iv
TABLE OF CITATIONS—Continued
Page(s)
Hull v. City of Duncanville, 678 F.2d 582 (5th Cir.
SCR NI ON Ay ROgT ENN ay po ERR EOD Nae Re 22
Ingraham v. Wright, 430 U.S. 651 (1977) ccc 15
Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.
OS A MRI ERRNO LS MEP ICS 5A bs Tn OO piste 21
Jackson v. City of Joliet. 715 F.2d 1200 (7th Cir.
ack neh, ne EA OREN GSM SBE 6 OO TO NM RD 21
Johnson v. Barker, 799 F.2d 1396 (9th Cir. 1986) ......... 16
Languirand v. Hayden, 717 F.2d 220, 227 (5th
Se eR: Gea FE SAME OM aE MEE a8 BES SEDO Beck See TERE 22
Lloyd v. Hines, 474 So.2d 376 (Fla. 1st DCA 1985) ........ 12
Maddox v. City of Los Angeles, 792 F.2d 1408 (9th .
Bie earns sh SALE Ae ei CREP A WTS Sr oe enor 21
Major v. Benton, 647 F.2d 110 (10th Cir. 1981) 0. 18
Market Street R. Co. v. Railroad Commissioner of
California, 324 U.S. 548 (1945) 10
Martinez v. California, 444 U.S. 277 (1980) 0. 19
Minnick v. California Department of Corrections,
Ge a I se a 9
Monell v. New York City Department of Social
Services, 436 U.S. 658, 691 (1978) 00 15
North Dakota State Board of Pharmacy v. Synder’s
Drug Stores, Inc., 414 U.S. 156 (1973) 0. 9
Odell v. Espinoza, 456 U.S. 430 (1982) 00. ma
Oklahoma City v. Tuttle, — U.S. —, 105 S.Ct. 2427,
a Da ee De ee ee
Owen v. City of Independence, 445 U.S. 622 (1980) _... 15
Parratt v. Taylor, 451 U.S. 527, 544 (1981) socae | ae
Paul v. Davis, 424 U.S. 693, 698, 701 (1976) 15, 16
Vv
TABLE OF CITATIONS—Continued
Page(s)
Pembaur v. Cincinnati, — U.S. —, 106 S.Ct. 1292,
89 L.Ed.2d 452 (1986) ........ 6, 16, 17, 18, 22, 23
Penthouse, Inc. v. Saba, 399 So.2d 456 (Fla. 2d
I a eae 12
Polk County v. Dodsun, 102 S.Ct. 445 (1981) 2 ee 15
Potvin v. Keller, 313 So0.2d 703 (Pla. 1975) nsec 12
Radio Station WOW, Inc. v. Johnson, 326 U.S.
cee cas een ee ieee ncaben 10
Rankin v. City of Wichita Falls, Tevas, 762 F.2d
a 13
Rankin v. Coleman, 476 So.2d 234 (Fla. 5th DCA
a a as ar 12
Reeves v. City of Jackson, 608 F.2d 644, 652 (5th
I a a aaetcs 21
Richardson v. City of ee 658 F.2d 494
Oe ee a te cnn 16
Rizzo v. Goode, 423 U.S. B62 (1976) anne ccc anensvesecensseee . oF
San Diego Gas and Electric Company v. City of
San Diego, 450 U.S. G51 (1980) 9
Screws v. United States, 325 U.S. 91 (1945) nce 18
State v. Perez, 372 So.2d 426 (Ba. 1979) n..cccccceccccseceseenee 12
Tennessee v. Garner, — U.S. —, 105 S.Ct. 1694,
Pe a se ican cae ane 20
Thorne v. City of El Segundo, 802 F.2d 1131 gin
a oie, Mieke RRGR AGAR idee ke RS ER 17
Walton v. Salter, 547 F.2d 824 (5th Cir. 1976) ................ 21
Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir. 1981) ...... 19
Williams v. Kelly, 624 F.2d 695, 697 (5th Cir. 1980) ... 22
TABLE OF AUTHORITIES
Page(s)
Unrtep States Constitution:
Section 1 of the Fourteenth Amendment .............. 2, 17, 18, 20
Fioriwa Constitution:
\
Article 5, Section 3(b), Fla.Const. (1968 Rev.) .............. 11
Unitep States SupreME Court Rvutss:
Supreme Court Rules 21.1 amd 20.5 nc ccceccsscsscseee 7,8
Unitep States Cope:
RE gS ea te ee aR 11
Se a I cl ete esos 2
a er, NN i a 36 iy
eo,
No. 86-640
In The
Supreme Court of the United States
October Term, 1986
—
ws
GENEVA HARRIS, as Personal Representa*ive of
the Estate of Doretha a/k/a Dorothea Rolle, Deceased,
Petitioner,
VS.
THE CITY OF MIAMI,
Respondent.
fy
Vv
On Petition For Writ of Certiorari From
The Florida Third District Court of Appeal
ray
BRIEF FOR THE RESPONDENT
IN OPPOSITION
Ly
Vv
OPINIONS BELOW
The opinions of the Florida District Court of Appeal,
Third District (hereinafter ‘‘Third District’’), are re-
ported at 490 So.2d 69 and are contained in the Petition-
er’s appendix at pp. 1-37.
ray
Vv
JURISDICTION
The opinions of the Third District were rendered
April Ist and 9th and June 3rd, 1986. Petitioner then filed
a second motion for rehearing which was denied without
bo
opinion on July 14, 1986. The jurisdiction of this Court
has been invoked by the Petitioner under 28 U.S.C. See-
tion 1257(3).
ray
Vv
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED IN THIS CASE
Section 1 of the Fourteenth Amendment to the United
States Constitution:
‘*. . . No State shall... deprive any person of
life, liberty, or property, without due process of law.
9?
Title 42, U.S.C. Section 1983:
‘‘Every person who, under color of any statute,
ordinance, regulation, custom or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity,
or other proper proceeding for redregs.’’
STATEMENT OF THE CASE
Respondent cannot accept Petitioner’s statement of
the case and synopsis of the facts and offers the follow-
ing statement instead.!
‘Citations will be presented as follows: Petitioner’s Appendix
(Pet. App. —’); Respondent's Appendix (Res. App. —”);
Trial Transcript (“TT —”); Record on Appeal (“R —”).
On April 27, 1980, Miami police officers attempted to
apprehend a burglar named Rolle. Mr. Rolle fled through
the City at high speed in a Cadillac and the police followed
in hot pursuit. The police surrounded and momentarily
captured Mr. Rolle but he escaped, braving police revolv-
ers pointed at bis head, by throwing his vehicle into re-
verse, jumping the curb, driving across private yards and
nearly running over police officers on foot. Pursuit re-
sumed and road blocks were devised but Mr. Rolle evaded
capture by again driving across sidewalks and front yards.
(R. 1-9; TT. 646-666, 173.) Eventually Mr. Rolle made an
abrupt turn immediately in front of his pursuers and was
struck by one of the police cars. Fish-tailing around a
corner, Mr. Rolle lost control of his vehicle and, approxi-
mately a block and a half later, ran up on a sidewalk and
over Mrs. Rolle (no relation to Mr. Rolle) who was seated
on a bench. Mrs. Rolle was severely injured and later
died. (TT. 147-237, 567-608, 623-642, 642-671, 800-820.)
Plaintiff, the victim’s representative, filed suit against
the City. Plaintiff did not sue Mr. Rolle or any of the
police officers involved. Ptaintiff’s complaint (R. 1-9:
Res. App. 1-9) was based on a common-law theory of ‘‘neg-
ligent failure to capture.’’ Plaintiff alleged that the po-
lice had negligently allowed Mr. Rolle to evade capture
by not taking more aggressive action before he ran over
Mrs. Rolle.2. Plaintiff also advanced a claim under 42
2 Plaintiff alleged that the police had negligently failed to
take advantage of many prior opportunities to capture or
disable Mr. Rolle, allegedly because the poiice department
had a policy of avoiding damage to its police cars even at
the risk of allowing a dangerous felon to escape capture.
(Res. App. pp. 1 to 9.)
U.S.C. See. 1983. Plaintiff alleged that the City had de
prived Mrs. Rolle of her ‘‘right to life without due process
of law’’ by failing to train its police officers how to cap
ture fleeing felons and/or by adopting a policy of avoid-
ing damage to its vehicles even when it meant allowing
criminals to evade or escape capture.
\fter Plaintiff presented her case at trial, the trial
judge permitted Plaintiff to radically alter her federal
claim against the City. (TT. 545, 843-844.) The trial court
permitted Plaintiff to amend the complaint ore tenus to
allege that the City had violated the United States Con
stitution by failing to have a regulation authorizing its
officers to abandon pursuit whenever pursuit became un
duly dangerous.’ As later explained on appeal to the dis
trict court (Rolle’s Answer Brief at pp. 36-37). Plaintiff’s
federal claim was that the Citv had violated Mrs. Rolle’s
rights by directing its officers to pursue fleeing felons
and not formally authorizing them to use their discretion
in abandoning pursuit whenever pursuit became unreason
ably dangerous. Plaintiff thus aceused the City of im
plicitly causing the police to pursue without regard to the
danger they were creating.’
’ Plaintiff had originally claimed that the City had violated
Mrs. Rolle’s constitutional rights by inducing excessive for-
bearance by its officers; Plaintiff at trial was permitted to
turn that claim on its head by alleging that the City had
violated Mrs. Rolle’s constitutional rights by inducing its
officers to be excessively fierce in their effort to stop
Mr. Rolle
’ As the Third District later phrased it, Mrs. Rolle’s theory
was that the City had mandated that its police pursue flee
ing criminals until apprehension and “failed to provide for
(Continued on following page
5
The trial court submitted both the common law re-
spondeat superior claim and the (amended) federal claim
to the jury. The jury was asked to decide on'y whether the
City had negligently adopted ‘‘an inadequate policy in re-
gard to police chases that was a legal cause of the death of
Dorothea Rolle.’’ (Res. App., pp. 10-11.) The jury decided
that question in the affirmative, and judgment was entered
accordingly. (R. 566-567.) The jury did not and was not
asked to apportion liability or damages between the com-
mon-law negligence and Federal Constitutional claims, but
the amount awarded far exceeded the City’s maximum
tort liability limits under state law.
The City appealed to the Florida Third District Court
of Appeal. Mrs. Rolle defended her Federal recovery by
asserting that the City, having instrueted its police to pur-
sue fleeing felons, should have had (but lacked) a coun-
tervailing ‘‘ proviso’’ authorizing its police to suspend pur
suit when in their judgment pursuit became unreasonably
dangerous. Plaintiff argued on appeal that the a/sence
of a ‘‘diseretionary-abandonment”’’ policy was a Constitu
tional violation.’
(Continued from previous page)
the abandonment of the pursuit when in the judgment of
the officer the continuation of the pursuit would involve
a significant risk of injury or death... .” (Pet. App. 23-24;
emphasis supplied.)
; As established at trial (TT. 386-387) in common with most
other cities the City of Miami did have express regulations
requiring the police to abandon pursuit in specific situa-
tions (e.g., whenever the police lost sight of the fleeing
criminal and whenever environmental conditions made pur-
suit too hazardous), and also restricting pursuit in school
zones, restricting the speed the police could use, requir-
ing complete stops at all intersections, and requiring the
(Continued on following page)
6
The Third District initially affirmed the judgment
against the City based on both on the common law and
Section 1983 claims. The City moved for rehearing solels
with respect to the Plaintiff’s federal claim, arguing that
the Federal Constitution did not require it to adopt a
formal rule authorizing “discretionary abandonment”’ of
hot pursuit. While the City’s rehearing petition was pend
ing, this Court decided Pembaur and Daniels. The Third
District granted the City’s rehearing petition and retracted
its original opinion, observing that the jury had only been
asked to decide whether the City’s hot pursuit policy wa
‘inadequate,’’ and that even if the City’s poliey was
adequate’? that only meant the City was negligent. The
Third District noted that there Was no e@' idence in the ree
ord showing that the ‘‘inadequacy”’ of the City’s poliey re
sulted from anything other than mere oversight by the
City. The Court held that such evidence was not sufficient
for recovery Under Section 1983. The Third District r
affirmed the common law tort judgment against the Citys
but remanded the case for retrial of Plaintiff's federal
claim so that Plaintiff could attempt to prove that the
Citys ’*< failure to adopt a more ‘‘adequate’’ abandonment
of-chase poles constituted a violation of the Plaintif!t
federally-secured civil rights. Rather than re-try her fed
eral claim, however, Plaintiff has sought review by the
United States Supreme Court.
Continued from previous page
use of lights and sirens at all times. Plaintiff's contention
was that under the United States Constitution, those sate
guards were “inadequate” without the additional safeguard
of a tormal regulation explicitly authorizing the police to
use their own discretion in continuing or abandoning pur-
suit
Pembaur v. Cincinnati US 106 U.S. 1292, 89 L.Ed.2d
1452 (1986): Daniels v. Williams, 474 U.S 106 S.Ct. 662
88 L.Ed. 662 (1986
SUMMARY OF ARGUMENT
1. The Petition does not present a substantial ques-
tion for consideration because the Petition and the under-
lying record are both too muddled to warrant review, the
challenged opinion is not final, and Petitioner did not seek
available review by the Florida Supreme Court.
2. The Petition does not present a substantial ques-
tion for consideration because even if Mrs. Rolle was killed
by a fleeing felon because police officers were too fierce
in their pursuit, and even if the police were too fierce
heeause they did not realize they had the discretion to
abandon pursuit, and even if the police were ignorant of
their right to abandon pursuit becanse the Citv failed to
adopt a rule so stating, still the City’s negligent failure
to adopt such a rule of ‘‘discretionary abandonment’’ was
not a deliberate policy decision and did not violate Mrs.
Rolle’s Constitutional rights.
———————— -O--- —_ —
ARGUMENT
I. THE COURT SHOULD NOT ACCEPT THIS
CASE BECAUSE THE CHALLENGED OPIN.
ION DOES NOT CONSTITUTE A FINAL DE-
CISION; THE QUESTION PRESENTED IS IN-
SUBSTANTIAL; PETITIONER FAILED TO
SEEK AVAILABLE REVIEW IN THE FLO-
RIDA SUPREME COURT, AND THE PETI-
TION VIOLATES THE SUPREME COURT
RULES.
A. The Record And The Petition Are Too Con-
fused To Warrant Review.
This Court’s Rules emphatically require that petitions
he lneid and to the point. Supreme Court Rules 21.1 and
8
21.5 provide that a sufficient basis for denying a petition is
a petitioner’s failure to state with brevity and clearness
the essential points and issues presented for consideration
by the Court. This petition is so prolix and muddled as to
be almost unintelligible.’
Neither Respondent nor the Court should be forced to
surmise the precise points and issues the Court is being
asked to consider. The trial and appellate proceedings be-
low were anything but a model of civil litigation. Both at
trial and on appeal critical factual and theoretical issues
were either overlooked altogether or addressed in cursory
fashion. Section 1983 jurisprudence is already sufficiently
perplexing to the Bar and the lower courts without this
Court accepting for review a case founded on a muddled
record and petition.
B. The Case Is Not Final.
The challenged opinion of the Third District does not
conclude the controversy but was merely an intermediate
step in the litigation. The challenged opinion affirmed the
tort judgment against the City and remanded for further
evidence on (i) damages, (ii) attorneys’ fees, and (iii)
Plaintiff’s Section 1983 claim. Plaintiff has been given
another opportunity to show that the City violated the
7 The Petition is also unreliable. The Petition at pages 12-13
asserts that the police chase was without supervision or
coordination; that every police unit in half of the City was
involved, and that the police were playing ‘““dodgem.” The
Petition also asserts that a police car “rammed” and locked
fenders with Mr. Rolle’s vehicle and “forced him” to run
over Mrs. Rolle. The Record citations do not, however,
support those assertions. For example, the term “dodgem’”’
was used by Petitioner’s attorney, not the police, and the
testimony concerning the precise cause and effect of the
collision was disputed and not resolved by the jury’s verdict
9
United States Constitution by having an inadequate
policy governing police chases. As the case now stands,
therefore, Plaintiff prevailed on her non-federal claim
(though the question of damages on that claim has yet to
be finally determined), and the Plaintiff’s federal claim
has been remanded for re-adjudication.
In San Diego Gas and Electric Company v. City of San
Diego, 450 U.S. 651 (1980), a plaintiff’s judgment for dam-
ages, based in part on a claim of an unjustified taking un-
der the United States Constitution, was reversed by the
state appellate courts, which remanded for a retrial, and
this Court dismissed an appeal because in light of the re-
trial the state court’s opinion did not result in a final judg-
ment or decree.
None of the “finality” exceptions recognized by the
Court in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
(1975), apply in this case. Petitioner is in effect urging
this Court to intervene so that she is not requirea to try
her federal claim, and given the Court’s scarce resources
the Court should not accept jurisdiction over a case merely
to relieve a party of having to submit evidence in support
of a federal claim. See e.g., North Dakota State Board
of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156
(1973).
In Minnick v. California Department of Corrections,
452 U.S. 105 (1981), the Court dismissed a certiorari pe-
tition which arose under similar circumstances. The peti-
tioner in Minnick had challenged the constitutionality of
a state program and obtained a favorable judgment in
the trial court; the California Court of Appeals reversed
(also due to an intervening Supreme Court deeision) and
10
remanded for retrial because the evidence in the Record
was insufficient to support a finding of unconstitutional
behavior under the then-existing caselaw. This Court dis-
missed the Petition on the grounds that the retrial would
have a significant effect on the federal constitutional
issues, and that none of the exceptions to finality require-
ment under Cox were present. See also Odell v. Espinoza,
456 U.S. 430 (1982), a wrongful-death action arising from
police misconduct, in which the Colorado Supreme Court
remanded a case for trial and this Court held that the
decision was consequently not final “as an effective deter-
mination of the litigation” pursuant to Market Street
R.Co. v. Ratlroad Commissioner of California, 324 U.S.
548 (1945).
Similarly, in Flynt v. Ohio, 451 U.S. 619 (1981), the
Court dismissed a petition for writ of certiorari for lack
of jurisdiction where a state appellate court had remanded
a case for retrial of a federal claim. The Court, quoting
from Radio Station WOW, Inc. v. Johnson, 326 U.S. 120
(1945), commented that the final-judgment rule precludes
reviewability “. . . where anything further remains to
be determined by a state court, no matter how disasso-
ciated from the only federal issue that has finally been
adjudicated by the highest court of the state.” In the
present case. the matter which remains to be determined
on retrial is hardly ‘‘disassociated’’ from the federal
issue; the matter to be decided on retrial is the federal
issue itself.
In addition, even if the Third District’s opinion had
finally resolved the controversy (which it did not), its
opinion would only be of precedential significance in two
South Florida counties. The challenged opinion would not
1]
even have precedential weight in the United States District
Court for the Southern District of Florida. Respondent
submits that such an opinion is not sufficiently important
to warrant Supreme Court review.
C. Petitioner Could Have And Should Have
Sought Review By The Florida Supreme
Court.
In addition, Respondent submits that jurisdiction is
lacking because Petitioner could have but did not seek
review of the Third District’s opinion in the Florida Su-
preme Court. Under 28 U.S.C. Section 1257, unless
the Florida Supreme Court plainly did not have jurisdic-
tion to review the Third District’s decision, this Court
would lack jurisdiction to do so. Banks v. California, 395
U.S. 708 (1969). Under the Florida Constition, however,
the Florida Supreme Court has jurisdiction to review any
district court opinion in direct and express conflict with
any other district court opinion (or Florida Supreme
Court opinion) on the same question of law, and also to
review any district court decision which expressly con-
strues a provision of the United States Constitution. Sve
Article 5, Section 3(b), “la.Const. (1968 Rev.). Petitioner
did not seek review by the Florida Supreme Court on
either ground. Petitioner claims that “conflict” jurisdic.
tion was lacking, but does not even mention the Florida
Supreme Court’s jurisdiction under Section 3(b)(3).
Numerous recent Florida district Court opinions have
expressly and directly construed Section 1983 and would
have provided a plausible basis for Florida Supreme Court
12
“conflict” jurisdiction,’ and the Third District’s opinions
did expressly construe the Due Process Clause of the
Fourteenth Amendment. See generally Ford Motors Co.
v. Zikus, 401 So.2d 1341 (Fla. 1981); David v. State, 369
So.2d 943 (Fla. 1979); State v. Perez, 372 So.2d 426 (Fla.
1979); Potvin v. Keller, 313 So.2d 703 (Fla. 1975); City
of Orlando v. Cameron, 264 So.2d 421 (Fla. 1972); Garcia
v. Cedars of Lebanon Hospital, 444 So.2d 538 (Fla. 3d
DCA 1984).
Accordingly, this Court should not aecept jurisdiction
over this case because the Record is inadequate, the Peti-
tion muddled, the challenged opinions non-final, and be-
cause Petitioner could have but did not seek Florida Su-
preme Court review.
II. THE UNITED STATES CONSTITUTION DOES
NOT PROTECT CITIZENS FROM BEING AC-
CIDENTLY RUN OVER BY GOVERNMENT
EMPLOYEES WHO ARE DRIVING CARE-
LESSLY, NOR DOES THE FEDERAL CON-
STITUTION KEQUIRE CITIES TO ADOPT
FORMAL RULES GIVING THEIR POLICE
DISCRETION TO ABANDON HOT PURSUIT.
Dorothea Rolle was run over by a ear driven by a
criminal who, while fleeing capture, collided with a pur-
8 See, e.g., Lloyd v. Hines, 474 So.2d 376 (Fla. 1st DCA 1985)
(discussing the liability under Section 1983 of a sheriff for
negligence with respect to the supervision of employees);
Higdon v. Metropolitan Dade County, 446 So.2d 203 (Fla
3d DCA 1984) (alleging county liability based on inade-
quate police protection); Penthouse, Inc. v. Saba, 399 So.2d
456 (Fla. 2d DCA 1981) (concerning the liability of gov-
ernment officials for failure to observe local laws or or-
dinances); Rankin v. Coleman, 476 So.2d 234 (Fla. 5th DCA
1985) (expressly discussing the liability of a sheriff based
on a policy alleged to violate the Constitution).
13
suing police car and lost control of his vehicle. Plaintiff
below never proved anything more than negligence by the
police, and with respect to the City, Plaintiff only alleged
that the City should have had but lacked a formal policy
giving the police discretion to abandon pursuit. Accord-
ingly, this case is merely a wrongful death case arising
from eareless driving by a City employee and negligent
supervision by the City.?
Once Petitioner’s hyperbole is strained away, the very
most that the record reflects is that a City employee, in
the course and scone of his employment, operated his
motor vehicle carelessly and ‘‘caused’’ (or contributed to)
‘
the death of a bystander, and that the “cause” of the em-
ployee’s negligence was his employer’s failure to adopt
a rule promoting careful driving. Petitioner thus advo-
cates the following as a proper constitutional syllogism
to govern this case:
1. Mrs. Rolle was killed by a fleeing criminal be-
cause a government employee was too aggressively trying
to capture him.
2. The employee was too aggressive because the City
did not tell him he did not have to be too aggressive.
? Petitioner now characterizes the police conduct as ‘‘reck-
less,”” but the jury never rendered any such verdict and was
not asked to do so, and the Third District’s rehearing opin-
ion characterized the police as negligent, not reckless.
Moreover, since the police were not defendants, their men-
tal state is irrelevant. The City was the Defendant and all
Plaintiff proved with respect to the City was that its policy
was “inadequate.” In Rankin v. City of Wichita Falls, Texas,
762 F.2d 444 (5th Cir. 1985) the Court affirmed the dis-
missal of a Section 1983 complaint alleging negligence
and commented that ‘Section 1983 liability depends on
more than a failure to exercise the requisite duty of care.”
14
3. The United States Constitution required the City
to tell its employees they did not have to be too aggressive.
4. Ergo Mrs. Rolle was deprived by the City of her
federal constitutional rights.
In point of fact, Petitioner’s proof at trial proved
both too much and too little. For purposes of holding
the City employer liable under traditional respondeat
superior doctrine Plaintiff proved too much because the
City was liable for the officer’s negligence without addi-
tional proof that the City was independently negligent
for not supervising its employees. For purposes of hold.
ing the City hable under Section 1983, however, the evi-
dence proved too little because proof of negligent super-
vision by the City was insufficient for purposes of hold-
ing the City liable under the Civil Rights Act. As this
Court recently affirmed in Daniels, supra:
“Far from an abuse of power, lack of due care
suggests no more than a failure to measure up to the
conduct of a reasonable person. To hold that injury
caused by such conduct is a deprivation within the
meaning of the Fourteenth Amendment would trivia-
lize the centuries-old principle of due process of
law.’’ Daniels, 106 S.Ct. at 665.
As the Court commented, the Constitution is intended to
deal with the larger concerns of government and does
not ‘‘purport to supplant traditional tort law in laying
down rules of conduct to regulate liability for injuries
that attend living together in society.”’ Id.
Petitioner asks this Court to rule that the City’s
failure to have an “adequate” policy governing hot pur-
suit was a Constitutional sin of omission. However, to
convert this wrongful death case into a Constitutional
15
tort would mean that virtually every tort by a govern-
ment employee would give rise to a constitutional claim
against the government. A tort claim based on careless
driving by a City employee—whether policeman or bus
driver hardly matters in the context of this case—is as far
removed from the concerns of the United States Constitu-
tion as any tort claim could be. In Monell v. New York
City Department of Social Services, 436 U.S. 658, 691
(1978), the Court explained that municipal liability under
Section 1983 is limited to deprivations of federally pro-
tected rights. Tu this case, Petitioner has never defined
a federally-protected right imperiled by the City of Miami’s
‘‘inadequate’’ policies governing hot pursuit. See In-
graham v. Wright, 430 U.S. 651 (1977). In Paul v. Davis,
424 U.S. 693, 698 (1976), this Court specifically warned
against the very sort of expansion here advocated by
Petitioner, proposing a ‘‘far-fetched’’—but as it turns
out, clairvoyant—hypothetical to make its point:
“It would be difficult to see why the survivors
of the innocent bystander . . . negligently killed by
a sheriff driving a government vehicle would not
have claims equally cognizable under Section 1983.”
See also Parratt v. Taylor, 451 U.S. 527, 544 (1981), like-
wise warning against such an expansion of Section 1983
because if such an expansion were allowed then “any party
who is involved in nothing more than an automobile acci-
dent with a state official could allege a constitutional vio-
lation under Section 1983.” See also Baker v. McCollan,
443 U.S. 137 (1979); Owen v. City of Independence, 445
U.S. 622 (1980); and Polk County v. Dodsun, 102 S.Ct.
445 (1981).
The City’s failure to adopt a formal rule explicitly
confirming the discretionary authority of its police offi-
16
cers to abandon pursuit was, at most, a violation of a duty
of care arising out of state tort principles, not a viola-
tion of the United States Constitution. The Due Process
Clause does not extend to individuals a right to be free
of injury whenever a government is characterized as a
tortfeasor, for the Fourteenth Amendment is not a “font
of tort law to be superimposed upon whatever systems
may already be administered by the states.” Davidson v.
Cannon, — U.S. —, 106 S.Ct. 668, 670-71 (1986); Paul v.
Davis, 424 U.S. 693, 701 (1976); Johnson v. Barker, 799
F.2d 1396 (9th Cir. 1986).
Daniels and Pembaur were cited by the Third District
as justification for retracting its original opinion, but
actually the Section 1983 judgment against the City was
incorrect for reasons predating those decisions. Under
well-established federal precedent, it was not unconstitu-
tional for the City to direct its police officers to appre-
hend fleeing felons—that after all is the purpose of hav-
ing police—nor is the United States Constitution con-
cerned with the City’s negligent failure to formally remind
its police that they are allowed to chase criminals ‘‘care-
fully’’. If as a result of the City’s failure to direct its
police to chase criminals carefully the police officers
chased criminals carelessly and so ‘‘caused’’ the Peti-
tioner’s injury, then the City is liable as a matter of tort
law but not federal constitutional law.’
10 No Federal Court has ever held that such a supervisory
omission violates the United States Constitution. On the
contrary, in Richardson v. City of Indianapolis, 658 F.2d
494 (7th Cir. 1981), a party was killed after a high-speed
automobile chase and the Seventh Circuit held that the
city could not be held liable based on a police failure to
(Continued on following page)
17
Petitioner has written a lengthy brief the primary
purpose of which, it seems, is to show that the Third Dis-
trict did not understand this Court’s decisions in Dantels
and Pembaur, but Petitioner’s Section 1983 recovery was
unjustified even in the absence of Pembaur and Daniels. In
Baker v. McCollan, 4483 U.S. 137 (1979), this Court noted
that although a government may be liable under tort prin-
ciples,
“Section 1983 imposes liability for violations of
rights protected by the Constitution, not for violations
of duties of eare arising out of tort law. Remedy
for the latter tvpe of injury must be sought in state
court under traditional tort-law principles. Just as
‘{mJjedieal malpractice does not become a constitu-
tional violation merely because the victim is a pris-
oner,’ Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.
285, 292, 50 L.Ed.2d 251 (1976), false imprisonment
does not become a violation of the Fourteenth Amend-
ment merely because a defendant is a state official.’’
Baker at 146.
(Continued from previous page)
abandon the chase. The Circuit Court agreed with the dis-
trict court’s conclusion that pursuit of a criminal fleeing at
high speed was proper and was indeed the legal obligation
of the city and its police officers:
“It was the duty of the defendant governmenta!
units and agencies to instruct their employee defendant
officers to pursue the decedent when he resorted to
high-speed evasive flight to avoid arrest... .”
Id. at 499.
Therefore, even before Pembaur and Daniels were decided
the City could not have been held liable under Section 1983
because liability can on'y arise for a violation of an estab-
lished constitutional duty. Davis v. Scherer, 468 U.S. 183,
194 (1984). The City should never have been penalized for
failing to predict what would have been an unprecedented
aberration in the federal case law. Thorne v. City of E!
Segundo, 802 F.2d 1131 (9th Cir. 1986).
18
Just as medical malpractice and false imprisonment
are not constitutional violations, so a wrongful death at-
tributable to a government’s supervisory negligence does
not give rise to a Section 1983 claim, and that was true long
before Daniels and Pembaur were decided. Petitioner can
hardly complain that the Third District cited Pembaur and
Daniels as the official reason for rescinding its initial opin
ion, since that rationale also justified the remand which
gave Petitioner a right to retry her case. Had it not been
for the Third District’s reliance on Pembaur and Daniels
(however unnecessary), the proper outcome would have
been a remand for entry of final judgment in the City’s
favor.
Federal decisions arising from conceptually similar
factual patterns, decided before Pembaur or Daniels, con
firm that the Third District was right to reverse the Sec
tion 1983 judgment against the City, and that a reversal
was proper even without the added authority of Dantels
and Pembaur. For example, in Major v. Benton, 647 F.2d
110 (10th Cir. 1981), an individual died in a cave-in on a
government supervised sewer project and his survivors al
leged that the government was liable for failure to formu
late safety measures, a claim conceptually indistinguish
able from Petitioner’s claim here. The Tenth Circuit af
firmed summary judgment in favor of the government on
the grounds that ‘‘a death resulting from the negligent ac
tion of a state official does not in itself raise a constitu
tional claim.’’ Jd. at 113. The Court, citing Screws 1
United States, 325 U.S. 91 (1945), held that the Fourteenth
Amendment does not extend to citizens the right “to be
free from the torts of state officials. Instead, specific
19
constitutional guarantees must be implicated to give rise
to due process protection.’’ 7d. at 113. See also Martinez
v. California, 444 U.S. 277 (1980): Wise v. Bravo, 666
F.2d 1328, 1333 (10th Cir. 1981).
In Oklahoma City v. Tuttle, U.S. —, 105 U.S. 2427,
85 L.Ed.2d 791 (1985), a police officer intentionally shot
and willed the plaintiff's decedent when he refused to obey
a police order to ‘‘freeze.’"" The Plaintiff in Tuttle sued
the wity on the theory that a city custom or policy caused
the shooting, based on its failure to properly supervise its
police 0) wers. Petitioner’s theory sub judice—that the
City should have had but lacked a rule authorizing the
abandonment of pursuit, is of course merely a_ specific
variety of supervisory failure as generally alleged in
Tuttle. As here, the plaintiff in Tuttle did not claim or
prove that the City had a deliberate policy of authorizing
misconduct by its officers. This Court noted, however, that
the word “policy” implies a course of action consciously
chosen from among various alternatives. In the present
case there was absolutely no evidence presented that the
City of Miami ever gave any consideration to the lack
of or need for the additional poliey which Plaintiff con
tended the City should have had, any more than there
was proof in Tuttle that the policy-nakers in Oklahoma
City had deliberately chosen an inadequate traiming pro
vrai
i As in Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir
1986), the death in Tuttle was intended by the police, while
the death of Mrs. Rolle was the completely unintended and
unforeseen result of an accidental collision with a fleeing
felon
20
In Galas v. McKee, 801 F.2d 200 (6th Cir. 1986), a
high-speed chase by police resulted in a crash and severe
injuries to a 13 year old driver. A Section 1983 action
was brought against the government, and the Sixth Cir
cuit affirmed summary judgment for the government de
fendant, holding that high-speed pursuit did not violate
the Fourth or Fourteenth Amendments. The Court held
that high-speed pursuit by police officers is not an wu
reasonable methed of law enforcement and does not in
fringe the United States Constitution. Similarly, in Can
non v. Taylor, 782 F.2d 947 (11th Cir. 1986), a police
vehicle struck and killed the plaintiff and the Court held
that there is no Section 1983 cause of action for injuries
received in an automobile accident involving the negli
gence of city police:
“The death occurred in an automobile aceident, al
legedly caused by the negligence of a police offieer
driving a city vehicle in the course of duties. No
CaASeCS have been cited to this C‘ourt whieh held that
automobile negligence by a state officer deprives an
injured victim of dus process of law.’
Id. at 949." The Eleventh Cireuit in Cannon held that
a person injured in an automobile accident caused by the
negligent (or even grossly negligent) operation of a motor
vehicle by a policeman acting in the line of duty has no
Section 1983 eause of action for violation of a federal
Ie Without suggesting that the collision in this case const
tuted the application of “deadly torce,” certainly not as to
Mrs. Rolle, see Tennessee v. Garner US 105 S.ct
1694, 1701 (1985 Where the otticer has probabie cause
to believe that the suspect poses a threat of serious physica!
harm. either to the otticer or to others, it is not constitu
tionally unreasonable to prevent escape by using deadly
force
21
right. Jd. at 950. The Court in Cannon also held that
even if government officials had failed to control their
police officers, such a failure did “not equate to an in-
difference to constitutional rights.” See also Reeves v.
City of Jackson, 608 F.2d 644, 652 (5th Cir. 1979); Walton
v. Salter, 547 F.2d 824 (Sth Cir. 1976) (pedestrian struck
and killed by police car responding to call of armed rob-
bery in progress; actions of officer who wantonly disre-
garded the safety of others do not give rise to a claim under
Section 1983); Ellsworth v. City of Racine, 774 F.2d 182
(7th Cir. 1985); Jackson v. Byrne, 738 F.2d 1443, 1446 (7th
Cir. 1984): Bowers v. De Vito, 686 F.2d 616, 618 (7th Cir.
1982): Maddox v. City of Los Angeles, 792 F.2d 1408 (9th
Cir. 1986) (**[ N Jegligent conduct by the state official is not
enough to state a claim under Section 1983 based on al-
leged violations of the Fourteenth Amendment due process
clause.” Jd. at 1413.)
In Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.
1983), a city and its police officers were sued because the
police officers failed to assist a young couple trapped in a
burning vehicle after an accident. The Court assumed that
the complaint stated a proper claim under general tort
principles, but held that it did not state a claim under Sec-
tion 1983. The Court held that the plaintiff's claim could
not succeed without evidence that the defendants had killed
the plaintiff’s decedent ‘‘in circumstances making the
killing an intentional tort.’’ As the Seventh Circuit com-
mented: ‘‘Section 1983 is not a mandate of highway safe-
tv."’ Jd. at 1205. See also R v. Goode, 423 U.S. 362
(1976) (for the proposition that a ‘‘general allegation of
administrative negligence fails to state a constitutional
22
>
claim cognizable under Section 1983°’); Languirand v.
Hayden, 717 F.2d 220, 227 (Sth Cir. 1983) (confirming that
Section 1983 liability of a government cannot be based on
simple negligence by the policy-makers, but must at least
be based on ‘‘gross indifference amounting to conscious in-
difference.’’); Hull v. City of Duncanville, 678 F.2d 582
(5th Cir. 1982); Escamilla v. City of Santa Ana, 796 F.2d
266 (9th Cir. 1986) (where the plaintiff’s decedent sued a
city and its police officers for failing to intervene sooner
during a barroom brawl which led to the death of an inno-
cent bystander, and tle Ninth Cireuit held that the Plaintiff
could not show a deprivation of rights secured by the Con
stitution or other federal law).
As the Fifth Circuit remarked in Wiliams v. Kelly,
624 I°.2d 695, 697 (Sth Cir. 1980), for a Section 1983 claim
to arise the government must commit ‘‘the sort of abuse
of governmental power that is necessary to raise an ordi-
nary tort by a government agent to the stature of a viola-
’
tion of the Constitution.’’ A failure by government to
police the community or its own employees may well be
tortious, but it is not a constitutional tort which justifies
prosecution under Section 1983 action. Hull, supra at 585.
This Court’s decisions in Pembaur and Dantels were
not revolutionary; they merely confirmed principles al-
ready expressed by this Court on many prior occasions.
Accordingly, the Third District was right to have re
versed the Section 1983 judgment against the Citv, because
all Plaintiff proved at trial was that the City lacked an
adequate ‘‘chase’’ policy. That reversal was mandated by)
this Court’s decisions in Daniels and Pembaur, and it was
mandated by Supreme Court and Cireuit Court decisions
23
predating Daniels and Pembaur. The City’s failure to
have adequate rules governing hot pursuit may have been
tortious but it was not unconstitutional.
°
CONCLUSION
The petition for a writ of certiorari should be denied
because the case is insubstantial and the Florida District
Court correctly applied the legal principles established by
this Court in rendering its decision. Jurisdiction is ac-
cordingly lacking.
Respectfully submitted,
Tuomas Martin Priaum, Esa.
Counsel of Reeord
Srmon, Scuinpier, Hurst
& SANDBERG
1492 South Miami Avenue
Miami, Florida 33130
Telephone: (305) 358-8611
AND
Lucta ALLEN DovuGHeErrty,
City Attorney
169 Kast Flagler Street
Miami, Florida 33131
Telephone: (305) 579-6700
Attorneys for City of Miami
By: Tuomas M. Priavum, Esa.
APPENDIX
INDEX TO APPENDIX
Page
i, Hee we SE nice App. 1
2. Final Judgment ..................... RWPaer i x. App. 12
App. 1
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT, IN AND
FOR DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 82-7845
MRS. GENEVA HARRIS, as )
Personal Representative of )
the Estate of DORETHA ROLLE, )
Deceased, )
Plaintiff, . ) COMPLAINT AT
vs. ) LAW AND
DEMAND FOR
THE CITY OF MIAMI, amunicipal) JURY TRIAL
corporation; the CITY OF MIAMI )
POLICE DEPARTMENT, acity _)
agency, and RONALD L. )
KUTCHER )
Defendants. )
COMES NOW the Plaintiff, MRS. GENEVA HAR-
RIS, as Personal Representative of the Estate of DOR-
ETHA ROLLE, Deceased, for the benefit of said Estate
and the decedent’s three minor children and sue and com-
plain of the Defendants, the CITY OF MIAMI, a municipal
corporation and the CITY OF MIAMI POLICE DEPART-
MENT, a city agency, as follows:
1. This is an action for damages in excess of $10,-
000.00, exclusive of interest and costs, under the Florida
Wrongful Death Statute, F.S. § 768.16, et seq.
2. This is also an action in accordance with Florida
Statute § 768.28. The Plaintiff has complied with any and
all requirements of said statute as to notice, ete.
3. Concomitantly and/or alternatively this action is
brought pursuant to 42 U.S.C. Section 1983 and the Four-
App. 2
teenth Amendment of the United States Constitution. Jur-
isdiction is founded upon 28 U.S.C., Section 1331 and See-
tion 1343 and the aforementioned statutory and constitu-
tional provisions.
4. The Plaintiff was and is a citizen of the United
States, a resident of Dade County and the State of Florida;
and the duly appointed Personal Representative of the
Estate of her daughter, DORETHA ROLLE, Deceased.
dD. At the time of her death on April 27, 1980 DOR-
ETHA ROLLE was sui juris, a citizen of the United States,
and the State of Florida, and a resident of Dade County,
Florida. At said time MRS. ROLLE was the natural moth-
er of three children under the age of 18 years, i.e, AARON
C. ROLLE, DERRICK 8S. ROLLE, and GLENDORA D
ROLLE.
6. The Defendant, CITY OF MIAMI, at all times
material hereto, was and is a municipal corporation within
the State of Florida; the operator and director of an
agency, known as ‘‘the CITY OF MIAMI POLICE DE-
PARTMENT,’’ and the employer of any and all police of-
ficers to be later described in this Complaint.
6A. At all times material hereto, RONALD L.
KUTCHER, was the owner of the motor vehicle being
operated by TYRONE ROLLE, with the consent and per-
mission of RONALD L. KUTCHER.
7. All of the police officers, to be later deseribed in
this Complaint, were, at all times material hereto, acting in
the course and seope of their employment with the CITY
OF MIAMI and the CITY OF MIAMI POLICE DEPART-
MENT; and under color of law, to-wit: under the color of
the statutes, ordinances, regulations, customs and usages
App. 3
of the United States, and of the State of Florida, pursuant
to their respective authority as police officers of the CITY
OF MIAMI.
8. On or about April 27, 1980 at approximately 8 :30
P.M., a police officer of Defendant, CITY, heard glass
breaking at the Biscayne Shopping Center in the CITY OF
MIAMI. A few minutes later, the officer in a patrol car
then observed a white Cadillac, owned by RONALD L.
KUTCHER and operated by TYRONE ROLLE, leaving
the aforedescribed shopping center. slowly with its lights
out. It was the belief of said officer that TYRONE
ROLLE had stolen several boxes of clothing from a J. C.
Penny store.
9. Said officer then attempted to pull over the white
Cadillae but tailed.
10. A chase then ensued involving the white Cadillae
and at least a dozen police cars and numerous police per-
sonnel from the CITY OF MIAMI and POLICE DEPART-
MENT of said City.
11. At all times material hereto, the police aspects of
said chase and attempted apprehension of TYRONE
ROLLE, was completely under the direction and control of
supervisory personnel of the CITY OF MIAMI and CITY
OF MIAMI POLICE DEPARTMENT.
12. During the initial portion of the chase (as well as
the entire portion of the chase) the wiite Cadillac (with the
police vehicles in question in immediate pursuit) proceeded
erratically up and down the streets, sidewalks, and high-
ways of the CITY OF MIAMI at an extremely high rate
through numerous red lights, stop signs, ete. ;
of speed
App. 4
making U-turns in front of police cars, running over the
sidewalks, ete.
13. At all times material throughout the entire chase,
it was known, understood and believed by the police officers
involved in the chase, that if the chase continued in the
manner to be described in this complaint, an innocent by-
stander was going to be hurt by the white Cadillac. Yet,
despite the aforedeseribed, the decision was made by the
supervisory personnel and the police officers of the CITY
UF MIAMI to continue the chase in the manner in which
they did.
14. Approximately five (5) minutes after the chase
commenced said police officers blocked the white Cadillac's
route. When the white Cadillac's driver appeared to no
want to stop for the blockade, the police officers removed
the blockade for fear of incurring physical damage to their
police vehicles.
15. Approximately 10 minutes after the chase com-
menced, the white Cadillac was forced to stop at the inter-
section of N.W. 75th Street and N.W. 17th Avenue due to
traffic in front of said vehicle. The CITY OF MIAMI
POLICE, then and there, completely surrounded said ve-
hicle. Three of the officers then went up to the white Cad-
illac and with their heads inside or almost inside the white
Cadillac’s open window, told the driver to surrender.
The driver, with the police officers screaming in his ear,
put the car in reverse aiming for another police car. Said
police car then and there moved out of the way, (axain for
fear of damage to the police vehicle) allowing the white
Cadillac to escape.
16. Atno point, up until the driver put the white Cad-
illac in reverse, as described in paragraph 15, did the po-
App. 5
lice attempt to disable the white Cadillac; or use force to
restrain the driver of said vehicle; all of which was below
the minimum standard of police procedure.
17. This ‘‘non-action’’ by the police as specified in
paragraph 16 was done (a) despite the fact that the police
knew an innocent bystander was going to be hurt; and (b)
despite the fact that numerous opportunities were pre-
sented to the police to disable the white Cadillac and/or re-
strain its driver. It was done in large measure out of fear
by the police and supervisory personnel of sustaining prop-
erty damage to the police vehicles.
18. Subsequent to the-escape of the white Cadillae as
deseribed in paragraph 15, the chase continued in the man-
ner specified in paragraph 12 for at least another 15 min-
utes.
19. At approximately the intersection of N.W. 58th
Street and N.W. 7th Avenue, the white Cadillac again went
up on a sidewalk; this time striking a bus bench and DOR-
ETHEA ROLLE, who was seated on said bench. MRS.
ROLLE was pinned under the white Cadillac. MRS.
ROLLE was then dragged several blocks auffering severe
burns and internal injuries. She died a few hours there-
after as a result of the burns and injuries.
I. CLAIM AGAINST THE CITY OF MIAMI AND
THE CITY OF MIAMI POLICE DEPART-
MENT FOR NEGL. GENCE IN ACCORDANCE
WITH FLORIDA STATUTES § 76.28 et seq./
Respondeat Superior
The Plaintiff realleges and readopts padagraphs 1-19
of this Complaint and further states:
20. The police officers in question, as previously
mentioned, were acting, at all times, in the course and scope
App. 6
of their emyployment with the CITY OF MIAMI and CITY
OF MIAMI POLICE DEPARTMENT.
21. The police officers in question had a duty to the
public, and to the Plaintiff's decedent in particular, to
exercise a reasonable degree of care for her safety under
the circumstances as alleged in this Complaint.
22. The police officers in question breached said duty
to the Plaintiff's decedent under the circumstances and
were negligent in that they improperly, unreasonab. °,
knowingly, and foreseeably exposed Plaintiff's decedent to
the improper risk of harm under the circumstances by,
among other things:
a) Negligently and carelessly, under the circum-
stances, conducting a chase specified in paragraphs 8-19 of
this Complaint.
b) Negligently and carelessly, under the cireum-
stances, conducting-the chase in the manner as specified in
paragraphs 8-19 of this Complaint.
c) Negligently and carelessly, under the circum
stances, failing to disable or apprehend TYRONE ROLLE
prior to his striking Plaintiff’s decedent, or attempt same,
all of which is specified in paragraphs 8-19 of this Com-
plaint.
d) Negligently and carelessly, under the circum.
stances, failing to disable the vehicle driven by TYRONE
ROLLE, or attempt same, prior to said vehicle striking the
Plaintiff's decedent; all of which is specified in paragraphs
8-19 of this Complaint.
App. 7
Il. CLAIM AGAINST THE CITY OF MIAMI AND
THE CITY OF MIAMI POLICE DEPART-
MENT FOR DIRECT NEGLIGENCE IN AC-
CORDANCE WITH FLORIDA STATUTE
§ 76.28 et seq AND RECKLESS INDIFFER-
ENCE TO THE RIGHTS OF OTHERS IN AC-
CORDANCE WITH 42 U.S.C. SECTION 1938
The Plaintiff adopts and realleges paragraphs 1-19 of
this Complaint and further states:
23. At all times material hereto the chase as de-
scribed specifically in paragraphs 8-19 and 20-22 of this
Complaint was directed, controlled, and supervised by
managing agents. and managing officers of the Defen-
dants.
24. At all times material hereto said managing agents
and officers had a duty to Plaintiff's decedent to exercise
a reasonable degree of care for her safety under the cir-
cumstances as alleged in this Complaint.
25. At all times material hereto said managing agents
KNEW that if the chase continued, in the manner that it
did, that an innocent bystander was going to get hurt.
25A. Yet, the CITY OF MIAMI and the CITY OF
MIAMI POLICE DEPARTMENT had institated a policy,
which had been communicated to its police officers, to
avoid property damage to its vehicles at almost all cost.
26. Said managing agents and managing officers
knowingly and recklessly breached said duty to Plaintiff’s
decedent, under the circumstances, and were grossly neg-
ligent in that they knowingly exposed Plaintiff’s decedent
to an improper risk of harm under the cireumstances by,
among other things:
App. 8
a) Conducting the chase, under the cireum-
stances, as specified in paragraphs 8-19 of this Complaint,
despite the known risk of harm to Plaintiff's decedent.
b) Conducting the chase in the manner, under
the circumstances, as specified in paragraphs 8-19 of this
Complaint, despite the known risk of harm to Plaintiff’s
decedent.
ce) Failing to have attempted to disable or ap-
prehend TYRONE ROLLE under the circumstances prior
to his striking Plaintiff’s decedent, as specified in para-
graphs 8-19 of this Complaint, despite the known risk of
harm to Plaintiff’s decedent.
d) Failing to have attempted to disable TY-
RONE ROLLE’s vehicle under the circumstances prior to
said vehicle striking Plaintiff’s decedent, as specified in
paragraphs 8-19 of this Complaint, despite the known risk
of harm to Plaintiff’s decedent.
e) Failing to have adequately trained its police.
officers so that they might properly respond to the situa-
tion which presented itself to said police officers under
the circumstances as specified in paragraphs 8-19; and
more importantly, knowingly conducting the chase in the
manner in which they did, with inadequately trained police
officers, under the circumstances.
f) Placing the police officers directly involved
in the chase. in a situation, where they were more con-
cerned with city property damage, than the human life of
a citizen of the City.
27. As a direct and proximate result of the negli-
gent and reckless acts and omissions of the managing
App. 9
agents and managing supervisors of the CITY OF MIAMI
and CITY OF MIAMI POLICE DEPARTMENT as afore-
described: a) Plaintiff’s decedent was deprived of a right
secured by the Constitution of the United States and:
b) said deprivation was caused by persons acting under
color of State law—i.e., the CITY OF MIAMI and CITY
OF MIAMI POLICE DEPARTMENT violated, under the
circumstancees specified, Plaintiff’s decedent’s right to life
without due process of law, as explicitly guaranteed by the
Fourteenth Amendment.
Ill. CLAIM AGAINST RONALD L. KUTCHER
The Plaintiff realleges and adopts paragraphs 1-19 of
this Complaint and further states:
28. Defendant, RONALD L. KUTCHER, as the
owner of the white Cadillac in question is responsible to
the Plaintiff for the negligent acts and negligent use of
his vehicle as specified in this Complaint by his permissive
driver, TYRONE ROLLE.
IV. COMPENSATORY DAMAGES
The Plaintiff readopts and realleges paragraphs 1-28
of this Complaint and further states:
29. As a direct and proximate result of the wrong-
ful death of DORETHA ROLLE; and the actions and non-
actions of the CITY OF MIAMI; CITY OF MIAMI PO-
LICK DEPARTMENT, and RONALD L. KUTCHER in
directly causing same; the following damages have been
sustained:
App. 10
A) AARON ROLLE AS A SURVIVOR AND
MINOR CHILD OF HIS MOTHER,
DORETHA ROLLE
1) The value of lost support and services; past,
present and future;
2) The value of lost parental companionship, in-
struction and guidance; past, present and future;
3) Mental pain and suffering; past, present and
future.
B) DERRICK S. ROLLE AS A SURVIVOR AND
MINOR CHILD OF HIS MOTHER, DORETHA
ROLLE
1) The value of lost support and services; past,
present and future;
2) The value of lost parental companionship, in-
struction and guidance; past, present and future.
3) Mental pain and suffering; past, present and
future.
C) GLENDORA D. ROLLE AS A SURVIVOR AND
MINOR CHILD OF HER MOTHER, DORETHA
ROLLE
1) The-value of lost support and services; past,
present and future;
2) The value of lost parental companionship, in-
struction and guidance; past, present and future;
3) Mental pain and suffering; past, present and
future.
App. 11
D) THE ESTATE OF DORETHA ROLLE, DE-
CEASED
1) Medical and funeral expenses due to the de-
cedent’s death which have become a charge against the
Estate or that were paid for or on behalf of the decedent.
2) Statutory attorney fees in accordance with 28
U.S.C. 1983.
IV. PUNITIVE DAMAGES AGAINST CITY OF MI-
AMI AND CITY OF MIAMI POLICE DEPART-
MENT IN ACCORDANCE WITH 28 U.S.C. 1985
FOR RECKLESS CONDUCT AND GROSS NEG-
LIGENCE
The Plaintiff readopts and realleges paragraphs 1-27
of this Complaint and further states:
50. The reckless conduct and gross negligence of the
CITY OF MIAMI and CITY OF MIAMI POLICE DE-
PARTMENT in accordance with 28 U.S.C. 1983 as speci-
fied in paragraph 8-27 of this Complaint are deserving of
punitive damages on behalf of the Estate.
WHEREFORE, the Plaintiff sues the Defendants,
jointly and severally, and request a jury trial on all issues
triable of right by jury.
DATED: April 26, 1982.
FELDMAN, ABRAMSON, SMITH,
MAGIDSON & LEVY, P.A.
Attorneys for Plaintiff
Suite 800 Bricknell Centre
799 Brickell Plaza
Miami, Florida 33131
Telephone: 377-4526
/s/ David L. Magidson
App. 12
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR
DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 82-7845 (CA-30)
GENEVA HARRIS, )
as Personal Repre- ) FINAL JUDGMENT IN FAVOR
sentative of the Es- ) OF GENEVA HARRIS, AS PER-
tate of DORETHA ) SONAL REPRESENTATIVE
ROLLE, Deceased, ) OF THE ESTATE OF DORE-
) THA ROLLE, DECEASED, ON
Plaintiffs, ) BEHALF OF SURVIVORS,
VS. ) DERRECK S. ROLLE, AARON
) ROLLE, GLENDORA D. ROLLE
CITY OF MIAMI, a ) AND GENEVA HARRIS AND
municipal eorpora- ) AGAINST THE CITY OF MI-
tion, ) AMI, A MUNICIPAL CORPO-
Defendant. ) RATION.
)
{June 13, —)
This is a FINAL JUDGMENT in favor of GENEVA
HARRIS, as Personal Representative of the Estate of
DORETHA ROLLE, Deceased, on behalf of the survivors,
DERRECK 8S. ROLLE, AARON ROLLE, GLENDORA
»). ROLLE and GENEVA HARRIS and against the
CITY OF MIAMI, a municipal corporation.
This cause was tried by and through a Jury Trial
between May 29, 1984 and June 1, 1984. On June 1, 1984,
this matter was submitted to a Jury and resulted in a
verdict in favor of the Plaintiffs and against the Defen-
dant, as follows:
[ene PE Mm S-
App. 13
WE, THE JURY, return the following verdict.
1. Did the City of Miami have an inadequate policy
in regard to police chases that was a legal cause of
the death of DORETHA ROLLE?
YES....X...... Wisin
2. Was there negligence on the part of the City of
Miami which was a le; al cause of the death of DORE-
THA ROLLE?
YES.....X...... Pecans
If your answers to both of the above questions are
“NO”, then your verdict is for the Defendant and you
should not proceed further except to date and sign
this verdict form and return it to the Courtrooin.
If your answer to either of the above questions is
“YES”, please answer question “3”.
3. What is the total amount (100%) of any damages
sustained by DERRECK 8S. ROLLE, AARON ROLLE,
GLENDORA D. ROLLE and GENEVA HARRIS
caused by the death of DORETHA ROLLE.
Total damages of:
DERRECK S. ROLLE $165,000.
AARON ROLLE $165,000.
GLENDORA D. ROLLE £165,000.
GENEVA HARRIS 100,000.
SO SAY WE ALL THIS 1 day of JUNE, 1984.
FOREPERSON
Accordingly, in accordance with the foregoing, it is
therefore:
1 ORDERED AND ADJUDGED that FINAL
JUDGMENT be and it is hereby entered in this cause in
App. 14
favor of the Plaintiffs and against the Defendant CITY
OF MIAMI, in the sums of $165,000. for DERRECK S.
ROLLE; $165,000. for AARON ROLLE; $165,000. for
GLENDORA D. ROLLE; and $100,000 for GENEVA
HARRIS, survivors, all lawful money of the United
States of America, plus legal interest thereon from the
date of this Judgment.
2. IT IS FURTHER ORDERED AND ADJUDGED
that this Court shall retain jurisdiction of this cause for
any and all post trial motions; for the determination of
statutory attorney’s fees; and for the determination of the
taxation of costs by the Plaintiffs against the Defendant
as per this Order.
DONE AND ORDERED at Miami, Dade County, Flor-
ida this 12 day of June, 1984.
MURRAY GOLDMAN
CIRCUIT COURT JUDGE
Conformed copies furnished to:
Donald Feldman. Esq.
Feldman & Levy, P.A.
David L. Magidson, Esq.
Abramson & Magidson, P.A.
Gisela Cardonne, Esq.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.