Opposition Brief — Oklahoma City v. Tuttle

Office-Supreme Court, U.S.

FILED

JUN 19 i984

.

rhe Supreme Garo Wied tae

Ocroser Term, 1983

THE CITY OF OKLAHOMA CITY,

Petitioner,

v.

ROSE MARIE TUTTLE,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Teath Circuit

Carl Hughes

Counsel of Record

HUGHES, NELSON & GASSAWAY

1501 N. Classen, Suite 200

Oklahoma City, Oklahoma 73106

(405) 528-2300

Attorneys for the Respondent

Rose Marie Tuttle, Individually and as Administratrix

of the Estate of William Adam Tuttle, Deceased, was Plain-

tiff below, Appellee and Cross-Appellant in the United

States Court of Appeals for the Tenth Circuit. The City

of Oklahoma City and Officer Julian Rotramel were De-

fendants below. The City of Oklahoma City was Appellant

in the Tenth Circuit and Officer Rotramel was Cross-Ap-

pellee in the Tenth Circuit. Officer Rotramel is not involved

in this Petition for Certiorari.

1

10

TABLE OF AUTHORITIES

Cases PAGE(S)

Languiran v. Hayden, 717 F.2d 220 (5th Cir. 1983)

Liete v. City of Providence, 463 F.Supp. 585 (D.C. RI.

1978) *

McClelland v. Facteau, 610 F.2d 693 (10th Cir. 1979).

Monnel v. Department of Social Services of the City of

New York, 346 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d

611 8 sali

Owen v. City of Independence, Missouri, 445 U.S. 622,

CC

Owens v. Haas, 601 F.2d 1232 (2d Cir. 1979), cert. den.,

440 U.S. 980, 100 S.Ct. 483, 162 L.Ed.2d 407 (1979)

Rizzo v. Goode, 423 U.S. 362, 46 L.Ed.2d 561

Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983)

United States Code

e a — — —

4-5

8-9

7

No. 83-1919

In the

Supreme Court of the United States

OcToBer TERM, 1983

THE CITY OF OKLAHOMA CITY,

' Petitioner,

v.

ROSE MARIE TUTTLE,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

STATUTE INVOLVED IN THIS CASE

This case involves 42 U.S.C. §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 any other person within the jurisdiction

thereof to the deprivation of any rights, privileges,

or immunities secured by the constitution and laws,

shall be liable to the party injured in an action at

law, suit and equity, or other proper proceeding for

redress. For the purposes of this section, any act of

Congress applicable exclusively to the District of Col-

umbia shall be considered to be a statute of the Dis-

trict of Columbia.”

R.S. §1979; Pub. L. 96-170, §1, Dec. 29, 1979, 93 Stat.

1984.

aniline

CONCISE STATEMENT OF THE CASE

Petitioner’s “Statement” relates the facts in the light

most favorable to Petitioner and leaves out many material

facts. William Adam Tuttle was shot in the back by a

rookie officer, riding alone without supervision under a

custom that allowed rookies to ride alone despite a formal

policy requiring them to ride with a master patrolman for

the first year of their actual sevice.

As stated by the Tenth Circuit (Petitioner’s Appendix,

page 9a):

“Here there was plenty of independent proof of

lack of actual training. In this case the individual

defendant had been on the police force for a very

short period of time; moreover, he admitted his lack

of training to cope with robberies. Nevertheless, he

was allowed to go in on a suspected robbery by him-

self. Also, his gross failure to successfully handle the

problem clearly demonstrated his complete lack of

training and also his lack of ability. Thus, the inci-

dent itself, as well as independent evidence, attested

to the officer’s lack of knowledge and ability. He

claims to have considered Tuttle to be a robber but

instead of pursuing him for the purpose of question-

ing, he fatally shot him without the least justifiable

provocation. The single incident rule is not to be

considered as an absolute where the circumstances

plainly show a complete lack of training.

Our conclusion must be that this action, coupled

with the clearly inadequate training, demonstrates the

City’s gross negligence and deliberate indifference to

the rights of the decedent.”

Generally, Petitioners have taken substantial liberty

with the facts of the case in terms of construing them in

*

the light most favorable to the City. Patrons in the club

indicated that when the officer entered the club and made

inquiry about an alleged armed robbery he was told that

nothing was going on and that everyone was having a good

time. Nothing out of the ordinary happened. Witnesses in

the club also testified that Tuttle made no suspicious move-

ments, that is he did not bend towards his feet and con-

tinue to try to squirm loose from the officer and leave the

club. He did go past Rotramel and out the door of the club.

Upon going past Officer Rotramel and out the door,

Rotramel whirled, kicked the door open, drew his gun and

fired at Tuttle in one continuous motion. Rotramel admit-

ted he never saw any weapon. Judging by the location it

appeared Tuttle tripped on the curb. The bullet trajectory

negated Rotramel’s claim that decedent had jumped up.

After Tuttle was shot in the back his boot was searched

by Officer Riley Lennox. Officer Lennox fond nothing in

the boot. While Tuttle was still alive and on the scene his

wife was contacted and arrived at the scene. Officers re-

fused to allow her to visit with or talk to her husband and

kept her locked in the back of a patrol car. From the time

he was searched until the time his boot was removed at

Baptist Medical Center, Tuttle was continuously under the

control of officers. When his boot was removed at the hos-

pital a toy water pistol miraculously fell to the floor. Tuttle

lived and suffered approximately one hour and twenty-two

minutes after the shooting. The police would not release

Mrs. Tuttle to be with her husband. They took her to the

central station and questioned her last. When she arrived

at the hospital her husband was dead. Did they need time

to regroup and plant the toy pistol?

atten

Rotramel’s training was severely deficient. He had 24

minutes of training in how to respond to an armed robbecy

in progress and weeks of training in how to fire his weapon.

Expert testimony established these and other deficiencies

and established them directly in the light of appropriate

constitutional standards. The expert’s testimony, standing

alone, is sufficient to establish liability. 7

1. In Monnel v. Department of Social Services of the

City of New York, 346 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d

611, this Court established (a) liability for municipalities

under Section 1 of the Civil Rights Act (42 U.S.C. §1983),

(b) that Section 1 is to be broadly construed and (c) that

municipalities could be sued when an action pursuant to

official policy (or custom without formal approval) caused

an employee to violate another’s constitutional rights.

2. Policies and customs of the Oklahoma City Police

Department violated William Adam Tuttle’s rights. He was

shot in the back by an undertrained, unsupervised rookie

officer, riding alone as per custom contrary to formal policy,

responding without a partner, without a backup, into a

blind building where nothing was actually going on. His

reactions were grossly improper which graphically illus-

3. The jury was fully instructed on the law as it ap-

plied to this case and returned a verdict in favor of the

Plaintiff below.

4. There is no conflict between the Circuits. In Lan-

guirand v. Hayden, 717 F.2d 220 (5th Cir. 1983), the Fifth

*

Circuit held there was no custom or policy established by

the evidence. In the instant case the customs and policies

were clearly established and the problems exacerbated by

the officer’s actions. In Wellington v. Daniels, 717 F.2d 932

(4th Cir. 1983), the complaint was a failure to implement

a policy as opposed to the actual policies and customs em-

ployed by the City of Oklahoma City.

5. The standard which the City of Oklahoma City

seeks to implement is so restrictive as to amount to no

liability at all. As they read Monnel in order to establish

liability against the municipality a plaintiff would have to

prove (a) a policy or custom which was per se unconsti-

tutional, (b) injury or death, (c) that the municipality had

notice of the constitutional deficiency and (d) that it had

happened on other occasions. This standard is not being

applied in the Circuits and does not justify consideration

herein.

As noted by the Tenth Circuit, Officer Rotramel ac-

tually admitted he committed a judgment error and con-

fessed that he shot Mr. Tuttle while acting only under

suspicion; no felony had been committed and that the shoot-

ing occurred because he had not been properly trained. He

admitted deficient training in the following, among other

areas:

(a) How to respond to an armed robbery in prog-

ress, while patroling alone.

(b) How to properly enter the type of building

involved.

aia

(e) Whether to wait for a backup unit on this type

of call.

(d) How to secure a potential armed robbery sit-

uation.

(e) How to determine entrance priority in an

armed robbery situation.

(f) How to apprehend a fleeing suspect.

He further admitted he could and should have been

given training on the specific situation he faced on the eve-

ning in question and that if he had been trained properly

decedent would probably be alive today.

At the time of the shooting the City of Oklahoma City

had a rule/regulation that required rookie officers to be

under the direct supervision of a master patrolman for one

year. Petitioner did not follow its own policy and allowed

Officer Rotramel to patrol alone and on his own, without

sufficient safeguards to insure that he was ready for this

type of activity. Expert testimony established this policy

as being grossly deficient.

Expert testimony also indicated:

(a) That this incident was one of the worst de-

partures from acceptable police conduct ever investi-

gated by this veteran expert.

(b) The conduct was far beyond gross negligence

but instead reached criminal culpability.

(c) The shooting could have been prevented by

proper training and supervision.

(d) That Officer Rotramel’s action and conduct

were due to improper training and that the training

was so grossly inadequate and reckless that the shoot-

offen

ing was the inevitable consequence thereof, hence that

knowledge was imputed to the City.

(e) The shooting amounted to a “curb-side exe-

cution”.

The Tenth Circuit agreed. In rejecting the City’s argu-

ment now presented here, the court distinguished the City’s

principal case, McClelland v. Facteau, 610 F.2d 693 (10th

Cir. 1979), and noted (Petitioner’s Appendix, page 9a):

“Although McClelland case is entirely different

from the case at bar, involving as it does police chiefs

failing to supervise, the principle is much more diffi-

cult to establish than the violation here. The act here

was so plainly and grossly negligent that it spoke out

very positively on the issue of lack of training, the

problem which is presented. We are not to be under-

stood as holding that there exists a guarantee that all

persons whose constitutional rights are violated by

municipal employees will recover from the city. Our

holding requires proof of a city’s violation of its duty

such as to constitute deliberate indifference to the

rights of its citizens. Here there was plenty of inde-

pendent proof of lack of actual training.” (Emphasis

added)

The proof in the trial court substantiated the City’s

violation of its duty, as note. by the Tenth Circuit, such

as to constitute deliberate indifference to the rights of its

citizens. Owen v. City of Independence, Missouri, 445 U.S.

622, 100 S.Ct. 1398 (1980), made it clear that liability

against municipalities in a civil rights case, may be based

upon a single incident, and that the requirements of

“policy” and “custom” do not necessitate proof of a long-

standing practice.

*

In Owens v. Haas, 601 F.2d 1232 (2d Cir. 1979), cert

denied, 440 U.S. 980, 100 S.Ct. 483, 162 L.Ed.2d 407 (1979),

the Court held that although there must be some causal

link between the City’s failure to train and the violation

of constitutional rights, a single, brutal incident may be

sufficient to create the causal link.

The brutality of the instant case is not contested.

The causal link in the case at bar is also present. Ro-

tramel not only admitted that his training was inadequate,

but stated that the shooting occurred because of his lack

of training. Expert testimony further developed the causal

link.

The Court, in Owens v. Haas, supra, went on to state

that a plaintiff did not have to endure a pattern of past

police misconduct before he might obtain a judgment under

a cause of action for civil rights violations. If there was

any evidence that the municipality had actual or imputed

knowledge of the almost inevitable consequences that arise

from grossly inadequate training and/or supervising of a

police force, then liability would exist. That of course is

present here where the City, without safeguards, allows

its rookie officers on the street, without backup and with-

out training as to how to handle an armed robbery.

In the case of Liete v. City of Providence, 463 F Supp.

585 (D.C. RI. 1978), the court, in relying upon Rizzo v.

Goode, 423 U.S. 362, 46 L.Ed.2d 561, stated:

do not have to endure a pattern of past police mis-

conduct before they can sue the city under Section

1983. If a municipality completely fails to train its

din

police force, or trains its officers in a reckless or

grossly negligent manner so that future police mis-

conduct is almost inevitable, the municipality exhibits

a ‘deliberate indifference’ to the resulting violation

of a citizen’s constitutional rights. In such case, the

ee ee ee

in and implicity authorizing such violations. .

—— — — inch

of training or grossly inadequate training of a police

force, such an injury was not the result of mere neg-

ligence, but the result of deliberate and conscious in-

difference by the city.”

As established by eyewitnesses, expert testimony, the

officer himself and the Tenth Circuit’s opinion, the evidence

was sufficient.

This is essentially a sufficiency of the evidence case.

The Tenth Circuit held (Petitioner's Appendix, page 6a):

“The Plaintiff-Appellee Mrs. Tuttle argues that ex-

tensive evidence, and not the single incident referred

to, established the grossly negligent training provided

by the City. She argues that virtually all of the evi-

dence established the necessary link between the in-

adequate training and the constitutional deprivation.

Owens v. Haas, 601 F.2d 1242 (2dCir. 1979). She

claims that the trial judge recognized that gross neg-

ligence existed if the City had actual or imputed

knowledge of the almost inevitable consequences that

arise from completely inadequate training or super-

vision. See Liete v. City of Providence, 463 F.Supp.

585, 590-91 (D. RI. 1978). We agree that Judge West

properly denied the City’s notions and properly sub-

mitted the issue to the jury.” (Emphasis Court's)

The evidence was and is sufficient.

*

Respondent submits and concludes that the Petition for

Writ of Certiorari should be denied in this case.

Respectfully submitted,

Carl Hughes

Counsel of Record

HUGHES, NELSON & GASSAWAY

1501 N. Classen, Suite 200

Oklahoma City, Oklahoma 73106

(405) 528-2300

Attorneys for the Respondent

June, 1984

I hereby certify that Service of the foregoing Memo-

randum in Opposition to Petition for a Writ of Certiorari

was made this — day of June, 1984, by depositing

three (3) copies of the same, with postage fully prepaid,

to the following:

Burck Bailey

24th Floor

First National Center

Oklahoma City, Oklahoma 73102

Counsel for Petitioner

All parties required to be served, have been served.

Carl Hughes