Petition for Writ of Certiorari — Board of the County Commissioners v. Brown

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In The JAN 5 1995

Supreme Court of the Hnited| States...

October Term, 1995

THE BOARD OF THE COUNTY COMMISSIONERS OF

BRYAN COUNTY, OKLAHOMA,

Petitioner,

vs.

JILL BROWN, et ai.,

Respondents.

Petition for a Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

WALLACE B. JEFFERSON

Counsel of Record

SHARON E. CALLAWAY

CROFTS, CALLAWAY & JEFFERSON

A Professional Corporation

Attorneys for Petitioner

1655 Frost Bank Tower

100 West Houston Street

San Antonio, Texas 78205-1457

(210) 246-5627

(800) 3 APPEAL + (800) 5 APPEAL + (800) BRIEF 21

ervices, inc.

ea ———2s

QUESTIONS PRESENTED

1. Does the United States Constitution impose liability ona

County for a single hiring decision that comports with state law

in every respect, when there is no evidence that the County’s

hiring practice in the past has resulted in the deprivation of a

citizen’s constitutional rights?

2. Does the hiring of a Reserve Deputy Sheriffwho has one

misdemeanor conviction for assault and battery and traffic

violations establish a causative link (amounting to deliberate

indifference) between the decision to hire him and his

subsequent use of force during the course of an arrest?

3. Are federalism concerns implicated by an opinion which

imposes liability on a County for hiring a Reserve Sheriff Deputy

with one misdemeanor assault and battery conviction and other

minor offenses, when the State of Oklahoma proscribes only the

hiring of individuals with felony records?

ii iii

LIST OF ALL PARTIES* TABLE OF CONTENTS

Board of the County Defendant/ Petitioner age

Commissioners of Bryan I du nce pasauccecdetdédecdvovess i

County, Oklahoma

DEED S606 ceccesccosesoocooceseceees ii

2. JillBrown Plaintiff/Respondent

EE EE ee iii

3. Stacy Burns Defendant/Respondent

SE Lugdesoecededeosectocceccceeses iv

i ii66 hebenewenseoeceséseetocesces l

Bentoment Of Furiedictios® .... ccc cc ccccccccccccces l

Constitutional and Statutory Provisions Involved l

ED cc cccdcctcccccccoceseccesece 3

A. Proceedings Below ...........ccccseeccess 4

i POUEIIIND occ cccccccccccccccess 6

ee Ee 6

2) ET <cneeecsoecnccecccececececs 7

Reasons for Granting the Writ ........ 6... 666s sun 8

I. The Court of Appeals’ Opinion Improperly

Substitutes a Federalized Notion of Minimal

: Police Hiring Standards for Standards Enacted

Since the district court dismissed the claims against Robert Merrisen (a by the State of Oklahoma. .................. 10

deputy sheriff) and B.T. Moore (the sheriff), they are not listed as parties in this

proceeding.

Contents

Il. The Court of Appeals’ Interpretation of § 1983's

“Deliberate Indifference” Standard Results in a

Nullification of Monell v. Dept. of Social

Services of the City of New York. ............. 12

Ill. The Fifth Circuit's Conclusion that Bryan

County Was Deliberately Indifferent Is Not

Supported by the Facts. ..... 6.6... 000000es 15

SammbehaW .cccccccceccccccccesescccesceevocccs 18

TABLE OF CITATIONS

Cases Cited:

Benavides v. County of Wilson, 955 F.2d 968 (Sth Cir.

1992), cert. denied sub nom. Bassler v. County of

Wilson, __ U.S. __, 113 S. Ct. 79, 121 L. Ed. 2d 43

CRBUED cccccccccocecoccececeocceccesossoosces 14

City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S. Ct.

1197, 103 L. Ed. 24412 (1989) ....... 3,4,7, 11,12, 13,15

Fraire v. Arlington, 957 F. 2d 1268 (Sth Cir.), cert.

Gonted, OB... CUGTED eccccccccccccccccceces 15

Haworth v. Central National Bank, 769 P.2d 740 (Okla.

IGGD) cccccccccccccccccccccescccevecesccesces 14

Hill v. Dekalb Regional Youth Detention Center, 40 F.3d

1176 (1th Cir. 1994) 22... e eee we enee 15

Contents

Page

Hirsch v. Burke, 40 F.3d 900 (7th Cir. 1994) ......... 15

Languirand v. Hayden, 717 F.2d 220 (Sth Cir. 1983),

cert. denied sub nom. Languirand v. Pass

Christian, 467 U.S. 1215 (1984) ..............4.. 15

Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.

Ct. 2018, 56 L. Ed. 24611 (1978) ............. 4,8, 12,18

Pembaur v. City of Cincinnati, 475 U.S. 469(1986) ... 8,9

Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 24 561, 96S. Ct.

SOUEEP TED. cccccdeccecccccccceccescceccoccces 7,11

Stokes v. Bullins, 844 F.2d 269 (Sth Cir. 1988) ........ 14,15

Statutes Cited:

BOO EEED ccdccccccceccccccsccessoccces l

SPOONS cvcvcccccocccccccccssceccocopese a

GT BSED Soccccecccccsccccccccces 2, 4,5, 10, 13,17

Oklahoma Statute Title 70, § 3311 (West 1994) .2,7,9, 10, 16,17

United States Constitution Cited:

Appendix A — Order Denying Rehearing of the United

States Court of Appeals for the Fifth Circuit Dated

November 29, 1995... 22... ccc cc ccc enncnennees

Appendix B — Opinion of the United States Court of

Appeals for the Fifth Circuit Dated October 23, 1995

“see eeeeeeeeeneneneeeneeeeeeeeeeeeeee eee eee eee ee

Appendix C — Order and Judgment of the United States

District Court for the Eastern District of Texas,

Sherman Division Filed September 20, 1993 ......

Appendix D — Jury Verdict of the United States District

Court for the Eastern District of Texas, Sherman

Division Dated April 19,1993 ...........0eeeees

The Board of the County Commissioners of Bryan County,

Oklahoma respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fifth

Circuit in this case.

The opinion of the court of appeals (App. B, infra, 4a-29a)

is reported at 67 F.3d 1174. Asuperseded opinion of the court of

appeals is reported at 53 F.3d 1410. The opinion of the district

court (App. C, infra, 30a-37a) is unreported.

STATEMENT OF JURISDICTION

The court of appeals entered its judgment on October 23,

1995. Petitioner's Petition for Rehearing of Substituted Opinion

and Suggestion for En Banc Consideration were denied by

written order on November 29, 1995. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONALAND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment of the United States Constitution

provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched and the persons or

things to be seized.

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District

of Columbfa, 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 redress.

Oklahoma Statute Title 70, § 3311 (West 1994) provides

that:

No person shall be certified as a police or peace

officer in this state unless the employing agency

has reported to the Council that:

a. the Oklahoma State Bureau of Investigation

and the Federal Bureau of Investigation have

reported that such person has no record of a

conviction of a felony or crime involving moral

turpitude,

b. such person has undergone psychological

evaluation. ... The psychological instrument

utilized shall be evaluated by a psychologist

licensed by the State of Oklahoma, and the

employing agency shall certify to the Council that

the evaluation was conducted in accordance with

this provision and that the employee/applicant is

suitable to serve as a peace officer in the State of

Oklahoma. . . . This section shall also be applicable

to all reserve peace officers in the State of

Oklahoma, and

c. such person possesses a high school

diploma or a GED equivalency certificate. . . .

STATEMENT OF THE CASE

This case concerns the extent to which federal courts have

constitutional avuthority to fashion minimum hiring

qualifications for law enforcement personnel that exceed

minimum standards enacted by state legislatures. In particular,

the question is whether a county of government can be held to

have violated the constitution by hiring a police reserve deputy

with a background of misdemeanor arrests, who is found to have

subsequently used excessive force in arresting a suspect, when

the reserve deputy is not disqualified from employment as a

matter of state substantive law. The legislature of the State of

Oklahoma, having considered minimum qualifications for

police-officer service, did not exclude persons with

misdemeanor-arrest backgrounds from law enforcement

employment. There was no evidence that the County's hiring

practices resulted in a pattern of constitutional deprivations.

Although the question has never been resolved by this

Court, Justice O'Connor has suggested, in a similar context,

that, except where a municipality's policy is “substantially

certain” to result in violation of constitutional rights, failure to

train can result in municipal liability only where a pattern of

constitutional violations arising from the policy puts the city on

notice of the problem. City of Canton, Ohio v. Harris, 489 U.S.

378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989) (O’Connor, J.,

concurring in part and dissenting in part). Justice O'Connor

noted that “Allowing an inadequate training claim such as this

one to go to the jury based upon a single incident would only

invite jury nullification of Monell.” In this case, the only alleged

instance of “inadequate hiring” is the claim upon which

respondent bases her complaint. Moreover, the County had

discretion under state substantive law to make that hiring

decision. Rather than confront those facts under a proper

Canton analysis, the Fifth Circuit has essentially held that the

State of Oklahoma does not have the right to employ deputies

who have had prior misdemeanor arrests. The result is not only

a nullification of Monell, but a serious blow to federalism.

A. Proceedings Below

Jill Brown commenced this suit under 42 U.S.C. § 1983

alleging that Bryan County, Oklahoma and three officers were

guilty of violating her constitutional rights. Thus, the district

court properly had jurisdiction on the basis of federal question

jurisdiction according to 28 U.S.C. § 1331. She sued Stacy

Burns (a reserve deputy sheriff), Robert Morrison (a deputy

sheriff), B.J. Moore (the sheriff), and the Board of the County

Commissioners of Bryan County, Oklahoma (“Bryan County”).

Brown alleged that Stacy Burns’ actions in forcibly removing

her from a vehicle and handcuffing her during an investigatory

stop amounted to excessive force that deprived her of rights

under the Fourth, Fifth, Eighth and Fourteenth Amendments to

the United States Constitution.

Brown alleged that Bryan County violated the Constitution

either: (1) by hiring Burns or (2) failing to adequately train

Burns. The district court denied the defendants’ motion for

summary judgment. The case was tried to a jury, which found

that Stacy Burns arrested Jill Brown without probable cause;

that Stacy Burns employed excessive force; that Stacy Burns

falsely imprisoned Brown; and that Stacy Burns was not entitled

to the defense of qualified immunity.

The jury also answered interrogatories concerning Bryan

County. The jury found the County liable under state tort

theories of negligent hiring and negligent training. With respect

to liability under § 1983, the jury found as follows:

1. That the hiring policy of Bryan

County “in the case of Stacy Burns” was so

inadequate as to amount to deliberate

indifference to the constitutional needs of

the plaintiff;

2. That the training policy of Bryan

County “in the case of Stacy Burns” was so

inadequate as to amount to deliberate

indifference to the constitutional needs of

the plaintiff.

The jury assessed a total of $765,300 in actual damages;

$87,500 in attorneys fees; and $20,000 in exemplary damages,

for a total award of $872,500. Finding no evidence of loss of

income in the past or loss of earning capacity in the future, the

court rendered judgment against Brown for those amounts.

Thus, the district court entered judgment against Burns and the

County for the $711,302 in actual damages; $87,500 in attorneys

fees; and $20,000 in punitive damages. The district court did not

award Brown any recovery against defendants Morrison and

Moore. Burns and the County appealed the judgment.

In its opinion, the Fifth Circuit held that the County’s hiring

of Stacy Burns violated Jill Brown’s constitutional rights. The

court recognized that Burns had met the requirements for

employment mandated by Oklahoma law. However, the court

found that Burns’ misdemeanor offenses would allow a jury to

conclude “that Burns had a propensity for violence and a

disregard for the law, thus, precluding his employment.” Brown

v. Bryan County, Okl., 67 F.3d at 1184 n.20 (App. B, 22a). The

court wrote that the County’s “single action of hiring Burns

without an adequate review of his background directly caused

the constitutional violations of which Mrs. Brown now

complains.” /d. at 1185 (App. B, 24a).

Justice Emilio Garza dissented from the majority's opinion

end judgment with respect to Bryan County. In Justice Emilio

Garza’s view, “one inadequate background investigation, even

by a municipal policymaker, is not the ‘unconstitutional

municipal policy’ of which Monell, Pembaur, or Tuttle speaks.”

Id. at 1185. (internal citations omitted). Justice Emilio Garza

articulated the basis for his dissent as follows:

I do not agree, therefore, with the majority's

implicit reasoning, explicitly stated in

Gonzalez, that any “distinction between

policies that are themselves unconstitutional

and those that cause constitutional violations”

is “metaphysical.” ... The majority

incorrectly, in my opinion, follows our

opinion in Gonzalez in holding that Sheriff

Moore’s single decision created municipal

liability, without reconciling the Supreme

Court’s instruction in Tuttle that a jury must

have “considerably more proof than the single

incident” before it can find causation. . . .

Justice Emilio Garza would have reversed the judgment as to

Bryan County. /d. at 1187 (App. B, 27a).

B. Summary of the Issues

1. Federalism

There is no constitutional provision or federal law

forbidding the hiring of an individual with a background of

misdemeanor arrests. There is no state law precluding the

County from employiug such a person; indeed, the State of

Oklahoma proscribes only the hiring of deputies with

convictions for felonies or crimes involving moral turpitude.

Okla. Stat. Ann. Tit. 70, § 3311(D)(2) (West 1994). Where the

hiring decision is not itself unconstitutional and no federal law

governs the hiring decision, concepts of federalism dictate that

the State of Oklahoma's qualifying standards for police service

should control. See Rizzo v. Goode, 423 U.S. 362, 378-380, 46

L. Ed. 2d 561, 96 S. Ct. 598 (1976). In the absence of a pattern of

constitutional deprivations arising from the adoption of a

particular hiring standard, there is no constitutional basis for

holding a county liable for its personnel choices.

The court of appeals justified finding a constitutional

violation based on Stacy Burns’ prior misdemeanor convictions,

which, in the court’s view, demonstrated a “propensity for

violence and a disregard for the law” that precluded the County

from employing him in the first place. 53 F.3d at 1184.20. The

convictions were for offenses Burns committed during a

college-campus brawl, several traffic violations, and one arrest

for being in physical control of a vehicle while intoxicated.

Thus, the Fifth Circuit has crafted a minimum hiring standard —

apparent nowhere in the United States Constitution — which a

county cannot disturb without committing a constitutional

violation. The court’s substitution of a federal hiring standard

for Oklahoma’s, without articulating any reasoned basis for

such, will “engage the federal courts in an endless exercise of

second-guessing municipal [hiring] programs” which, as this

Court has recognized, “implicates serious questions of

federalism.” Canton v. Harris, 489 U.S. 378, 392 (1989).

2. Causation

Respondent Jill Brown failed to establish a direct link

between the county’s hiring of Burns and a constitutional

deprivation. At most, Brown demonstrated that Burns had had

two fights before becoming a reserve deputy, one of which

resulted in a misdemeanor assault and battery conviction. The

court of appeals seized upon those offenses and a series of traffic

violations to effectively hold that — as a matter of constitutional

law — Burns was disqualified ab initio from serving as a police

reserve deputy. Under that approach, the county would be

strictly liable for any constitutional deprivation caused by Burns

or any other deputy with a similar background. Such a holding

amounts to permitting precisely the theory of strict respondeat

superior liability rejected in Monell.

REASONS FOR GRANTING THE WRIT

This Court has held that a single decision by a single

policymaker can result in municipal liability under appropriate.

circumstances. Pembaur v. City of Cincinnati, 475 U.S. 469

(1986). In Pembaur, however, the singular decision of an

authorized policymaker actually ordered the carrying out of an

unconstitutional act. Jd. at 483 n.11. In this case, the hiring

decision was not, in itself, unconstitutional. Moreover, unlike

Pembaur, it is undisputed in this case that the County’s hiring

conformed to the State of Oklahoma’s legislative screening

standards.

The Fifth Circuit’s opinion charges the county with

identifying, along the spectrum of human behavior, the precise

components of a police candidate’s prior behavior that would

“likely” result in the candidate’s subsequent use of

unconstitutionally excessive force. In this case, the Fifth Circuit

pinpointed this inevitable predisposition on Reserve Deputy

Burns’ misdemeanor arrests. Would the county have been

liable, under the Fifth Circuit's standard, had Burns had one less

traffic violation? What is the constitutional standard governing

a county’s future hiring decisions? Neither question can be

answered by consulting the Fifth Circuit’s opinion. It is

essential that this Court fill the vacuum.

Petitioner believes that the answer lies, at least in part, in an

application of federalism. The State of Oklahoma has enacted

legislation requiring screening of potential law enforcement

personnel. Okla. Stat. Ann. Tit. 70, § 3311(D)(2) (West 1994).

The legislation prohibits political subdivisions from employing

reserve deputies with felony records or convictions involving

crimes of moral turpitude. The County did not offend those

minimal standards in hiring Reserve Deputy Burns. Thus, the

situation here is far different from Pembaur, in which the

policymaker actually ordered and authorized an

unconstitutional act. Here, the County conformed its conduct to

the legislative screening process and hired a reserve deputy

who, so far as the State of Oklahoma was concerned, passed the

litmus test for hiring. Moreover, the evidence at trial established

conclusively that the County had never received any complaint

that its reserve deputies, or any peace officer in its employ, had

ever been engaged in violating citizens’ constitutional rights as

a result of the county’s conforming with the state’s hiring

standards.

Thus, the question squarely presented is whether, in the

absence of any pattern of constitutional deprivations arising

from a county’s hiring practice, the county’s decision to hire one

reserve deputy - who meets every qualification to serve —

subjects the county to liability for the deputy’s subsequent use of

force during an arrest. Absent notice that hiring personnel with

misdemeanor records results in a pattern of constitutional

deprivations, a municipality may not be subjected to liability for

one instance of hiring a person who is subsequently found to

have used excessive force. In the absence of other similar

instances, a county’s hiring decision cannot reasonably be

equated with deliberate indifference.

THE COURT OF APPEALS’ OPINION IMPROPERLY

SUBSTITUTES A FEDERALIZED NOTION OF MINIMAL

POLICE HIRING STANDARDS FOR STANDARDS

ENACTED BY THE STATE OF OKLAHOMA.

The State of Oklahoma leaves to its political subdivisions

the discretion to hire deputies whose records are devoid of

felony convictions or crimes involving moral turpitude. See

Okla. Stat. Ann. Tit. 70, § 3311(D)(2) (West 1994). In addition

to those standards, Oklahoma requires deputies to meet

stringent training requirements, to be supervised by licensed

peace officers and, as a predicate to certification, to pass a

battery of psychological testing. Thus, in the State of

Oklahoma, a county is authorized to hire a reserve deputy even if

the deputy has a record of misdemeanor arrests and traffic

violations. The Fifth Circuit, however, has held that a county

subjects itself to liability, under § 1983, if a person hired under

Oklahoma’s scheme is subsequently found to have deprived a

citizen of constitutional rights.

The court of appeals concluded it did not matter that

petitioner had offended none of the hiring requirements enacted

by the State of Oklahoma; it did not matter that, prior to this

case, petitioner had never had complaints that its conformity

with State hiring standards produced violations of citizens’

constitutional rights; it was irrelevant that Stacy Burns was

qualified to serve as a reserve deputy according to Oklahoma

law. The Fifth Circuit held that Burns was precluded from

serving as a reserve deputy because of his background of

misdemeanor arrests. The danger in such a holding should be

evident; rather than analyze policy and custom to determine

municipal liability under § 1983 and the United States

Constitution, the court of appeals has arrogated to itself the

power to determine if a state's particular hiring standards meet

the court's own minimum federal standards.

| There is no limiting principle apparent in the court's

opinion. In this case, where the reserve deputy had misdemeanor

arrests for a college campus braw! and several traffic violations,

the court of appeals held the county to be “deliberately

indifferent” for hiring him. It is unclear whether, in another case

a similar applicant with one less offense would meet the new

federal personnel policy. In any event, it is clear that the court of

appeals has effectively placed a shadow injunction on the State

of Oklahoma's statutory qualifications for reserve-deputy and

peace-officer employment. Juries will now be charged with

determining municipal liability under section 1983 based on

whether the municipality was “precluded” from hiring a person

otherwise qualified under state law.

The federalism concern has, in prior decisions of this C

been central in defining municipal liability. Without a

limitation on liability, the “deliberate indifference” standard of

City of Canton v. Harris will devolve into “an endless exercise

of second-guessing” hiring determinations that, so far as state

law is concerned, pass muster. City of Canton v. Harris, 489

U.S st 392. In this case, where there is no evidence that the

county's conformity with State of Oklahoma standards ever

resulted in a pattern of constitutional deprivations, the Fifth

Circuit's conclusion that the county was “deliberately

indifferent” in hiring Reserve Deputy Burns amounts to an

intrusion on state sovereignty to oversee the administration of

its own law. Rizzo v. Goode, 423 U.S. at 378.

Il.

THE COURT OF APPEALS’ INTERPRETATION OF

§ 1983'S “DELIBERATE INDIFFERENCE” STANDARD

RESULTS IN A NULLIFICATION OF MONELL V. DEPT.

OF SOCIAL SERVICES OF THE CITY OF NEW YORK.

In City of Canton, this Court addressed whether a policy

that is not in itself unconstitutional may nevertheless give rise to

municipal liability. In addressing claims that a municipality

inadequately trained its police officers, this Court held that the

municipality could be held liable under § 1983 only if “the

failure to train amounts to deliberate indifference to the rights of

persons with whom the police come into contact.” 489 U.S. at

390 n.10, 109 S. Ct. at __ 0.10, 103 L. Ed. 2d at 427. Justice

Brennan, in his concurring opinion in City of Canton,

recognized that courts applying the “deliberate indifference”

standard in a failure-to-train case “required a showing of a

pattern of violations from which a kind of ‘tacit authorization’

by city policymakers can be inferred.” 489 U.S. at 397, 109 S.

Ct. at__, 103 L. Ed. 2d at 432. On numerous occasions, the Fifth

Circuit and other circuits have agreed that a pattern of violations

is necessary to support municipal liability in most instances.

This case presents the classic case where prior notice of

constitutional deprivations would be required for municipal

liability.

It is not unconstitutional to employ a reserve deputy who

has a misdemeanor arrest record. In and of itself, a hiring

decision does not result in respondeat superior liability each

time the hired employee commits an act depriving a citizen of

constitutional rights. Hiring decisions that are constitutional

may result, in a “but for” sense, in the deprivation of

constitutional rights; but such philosophic causes, without

more, are not enough to establish municipal liability. Neither is

negligence the proper standard. When the constitution marks

the bounds of municipal liability, the causation element must

meet a higher standard. That higher standard — deliberate

indifference — is not met simply because a jury (or court) is

offended by nepotism in a small county.

When a municipal policy is, itself, constitutional, the

“deliberate indifference” standard can be satisfied one of two

ways. First, the policy can be so certain to result in the

deprivation of constitutional rights that a city may be held

deliberately indifferent. City of Canton, 489 U.S. at 390 n.10,

109 S. Ct. at ___, mn. 10, 103 L. Ed. 2d at 427 n.10 (failing to

instruct police officers in the use of deadly force). It is the

extremity of the risk that subjects the municipality to liability

under that circumstance. There are times, as in City of Canton,

that the risk is self-evident to a “moral certainty.” Jd. It cannot

be said with that same degree of certitude that individuals who

have had two fights, years prior to joining a law enforcement

agency, will use excessive force in arresting an individual.

Under the court of appeals’ new standard, what used to be

constitutional county policy — Oklahoma's vesting county's

with discretion to hire peace officers (even with misdemeanor

backgrounds) so long as they meet the state's minimum

qualifications, undergo specified training, and have no felony

convictions or arrests for crimes involving moral turpitude —

has now become unconstitutional ab initio. The breadth of such

a holding is astounding. As the court of appeals bluntly stated,

such persons are now “precluded” from employment as law

enforcement officers. This new federalized hiring standard

usurps state standards and thereby subjects municipalities to

§ 1983 liability for pure hiring decisions. The panel does not

attempt to articulate the constitutional basis for the imposition

of such minimal hiring standards. Prior to this case, the Fifth

Circuit rightly rejected the notion that states must conform their

training and hiring practices to meet some minimal federal

standard. See Benavides v. County of Wilson, 955 F.2d 968, 974-

75 (Sth Cir. 1992), cert. denied sub nom. Bassler v. County of

Wilson, _U.S. __, 113 S. Ct. 79, 121 L. Ed. 24 43 (1992).

It is also not the case, as the court of appeals assumed, that

past misconduct or past emotional disability precludes future

law enforcement service. Benavides v. County of Wilson, 955

F.2d at 974-75 (no evidence that County would have dismissed

deputies from force had it had detailed accounting of deputies

prior history of psychological disorders). Likewise, there is no

evidence here that Bryan County would have (or should have)

dismissed Burns on the basis that Burns had one misdemeanor

assault conviction stemming from a campus fight. Indeed,

under Oklahoma law, the legislature has ceded to sheriffs the

discretion to determine whether to employ individuals with

prior misdemeanor convictions. Haworth v. Central National

Bank, 769 P.2d 740, 743 (Okla. 1989) (recognizing Oklahoma

legislature's “direct intervention and control over law

enforcement officers through adoption of statute forbidding

employment of felons or individuals convicted of crime

involving moral turpitude).

It would be a different matter altogether if Brown had been

able to demonstrate Bryan County adopted a “policy” of hiring

such individuals, and that that policy resulted in other incidents

of excessive force sufficient to alert the County that fights in

college lead to excessive force in the rank and file. Of course, as

even the court of appeals conceded, there is absolutely no

evidence of any such pattern. 67 F.3d at 1185 n. 22 (App. B,

24a). Under these circumstances, the panel's opinion directly

conflicts with this court's opinion in Stokes v. Bullins, 844 F.2d

269, 274-77 (Sth Cir. 1988) (prior arrests did not disqualify

officer from service; no persistent, widespread pattern of hiring

policemen with a background of unjustified violence).

This is the second lesson of City of Canton. If there is no

obvious, inevitable link between the constitutional policy and

the deprivation of constitutional rights, then it must be shown

that the policymaker was “aware of, and acquiesced in, a pattern

of constitutional violations. . . .” Jd., 489 U.S. at 397, 109 S. Ct.

at __, 103 L. Ed. 2d at 432. Until now, that has been the standard

enforced in this circuit. See Languirand v. Hayden, 717 F.2d

220, 227 (Sth Cir. 1983), cert. denied sub nom. Languirand v.

Pass Christian, 467 U.S. 1215 (1984), Stokes, 844 F.2d at 274-

75; Fraire v. Arlington, 957 F.2d 1268 (Sth Cir.), cert. denied, __

U.S. __ (1992). See also, Hill v. Dekalb Regional Youth

Detention Center, 40 F.3d 1176, 1195 (11th Cir. 1994) (requiring

frequency of unconstitutional deprivation as prerequisite to

County liability); Hirsch v. Burke, 40 F.3d 900, 904 (7th Cir.

1994) (pattern of constitutional violations is prerequisite to

recovery against municipality for inadequate training).

Il.

THE FIFTH CIRCUIT’S CONCLUSION THAT BRYAN

COUNTY WAS DELIBERATELY INDIFFERENT IS NOT

SUPPORTED BY THE FACTS.

This case presents only one instance of an alleged

constitutional violation — the incident of excessive force Mrs.

Brown asserts. By establishing municipal liability based on

Bryan County's hiring decision, this case establishes a greatly

expanded potential for liability under the auspices of section

1983. The court of appeals’ opinion concludes that based upon

Burns’ history of arrests the jury could have found that Burns

had a “propensity for violence and a disregard for the law”

which “ preclud[ed] his employment.” 67 F.3d at 1184 n. 20

(App. B, 22a). The evidence of this “propensity” is stark indeed;

in no way Can it be said to a moral certainty that a person with

such a background is, as a matter of constitutional law, forever

barred from law enforcement service.

Burns’ criminal record includes the following categories of

citations and arrests: (1) nine moving traffic violations; (2)

Actual Physical Control of a motor vehicle while intoxicated;

(3) driving with a suspended license; (4) assault and battery; (5)

possession of false identification and (6) resisting arrest.

Categories one through three fail to indicate any predisposition

on the part of Stacy Burns to commit violent acts. Thus, these

components of the “rap sheet” Sheriff Moore had obtained in the

application process fail to support an inference of deliberate

indifference to the constitutional violation at issue - excessive

force. Neither does the possession of false identification support

this type of inference.

The i misdemeanors, when properly examined,

sotenaanaenaameeaanai Both

charges resulted from a fight with fraternity members which

occurred while Stacy Burns was at the University of Oklahoma

in September of 1989. At the time of this incident Burns had just

turned nineteen. As a result of the fight, Burns pled guilty to

assault and battery. The Fifth Circuit opines that this type of

evidence should have somehow placed Bryan County on notice

that despite training, supervision, psychological evaluations

and testing, Burns would nevertheless be predisposed to

committing acts of unconstitutional aggression. Under

principles not only of federalism but of common sense, the State

of Oklahoma and Bryan County could logically conclude that a

person with Burns background can, under proper supervision,

redeem himself and serve the force with distinction. The

evidence simply does not establish to a moral certainty that the

county was deliberately indifferent in deciding that Burns

could, in spite of the one campus fight, serve as a reserve deputy.

Oklahoma's requirements for service in its sheriffs’

- detailed in Okla. Stat. Ann. Tit. 70,

§ 3311(D)(2) (West 1994). The Oklahoma Statute creates a

Council on Law Enforcement Education and Training that is

responsible for promulgating rules and regulations regarding

certification and policies for admission requirements for

Oklahoma officers. § 3311(A), (B). This statute provides that

applicants with felony convictions or crimes involving moral

turpitude are disqualified from service. § 3311(D)(2)(a).

Additionally, the statute requires that the applicant undergo one

of several psychological tests approved by the Council! on Law

Enforcement Education and Training which is then evaluated by

a licensed psychologist. § 3311(D)(2)(b). The applicant must

also possess a high school diploma or a GED equivalency

certificate and must satisfactorily complete a basic police

course of 120 hours. § 3311(D)(2)(c).

This statute promulgated by the Oklahoma Legislature

outlines the official policy in effect at the time Bryan County

hired Stacy Burns. Bryan County followed each of the

requirements of the legislation in its hiring procedures of all its

applicants, including Stacy Burns. None of the charges in

Burns’ record fall within the categories which require

disqualification under Oklahoma law. Furthermore, the

additional prerequisites for service were followed in the hiring

of Stacy Burns.

The law of the State of Oklahoma, therefore, authorized the

hiring decision of Sheriff Moore. As a protection for

constitutional violations, section 1983 was never intended to

disturb objectively reasonable legislative decisions regarding

the requirements for employment by municipal authorities.

Under the guise of constitutional authority, the court of appeals

has determined that a single constitutional hiring decision

authorized by the laws of that State may constitute a policy or

custom sufficient to establish municipal liability when it has

never been demonstrated that a person's history of misdemeanor

arrests would inevitably result in the violation of citizens’

constitutional rights.

CONCLUSION

This is an ideal case for this Court to demonstrate how

federalism affects a federal court's review of municipal liability.

The new Fifth Circuit standard holds that, even if there is

evidence of only one incident arising from a policy that is not in

itself unconstitutional, municipal liability is established if the

County was “precluded” from hiring an officer in the first place

by virtue of two adolescent fights. Under this standard, the court

of appeals concluded that it did not matter that Bryan County

never had a similaz incident in the past; it did not matter that the

County had always conducted adequate background

investigations with respect to every other officer and cadet

candidate; it did not matter that the only incident of excessive

force Burns was ever charged with stemmed from his

confrontation with Jill Brown after the high-speed pursuit; it did

noi matter that Stacy Burns had never had a felony conviction,

or that his criminal record revealed only one misdemeanor

episode of violence. Instead, the court of appeals focused on the

singular instance of the hiring of Burns, declared that that hiring

“policy” was, in itself, sufficient to show deliberate

indifference, and concluded that there is an “affirmative link”

between hiring a deputy with misdemeanors in his pasi and any

excessive force he uses while so employed. That is respondeat

superior liability, which Monell forbids and which this Court

has rejected. Such a marked departure from once-settled

constitutional doctrine deserves review by this Court by

granting a writ of certiorari.

These reasons justify a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth

Circuit.

Respectfully submitted,

WwW CEB. JEFFERSON

Counsel of Record

SHARON E. CALLAWAY

CROFTS, CALLAWAY

& JEFFERSON

A Professional Corporation

Attorneys for Petitioner

1655 Frost Bank Tower

100 West Houston Street

San Antonio, Texas 78205-1457

(210) 246-5627

APPENDIX A — ORDER DENYING REHEARING OF

THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT DATED NOVEMBER 239, 1995

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-5376

JILL BROWN,

Plaintiff-Appellee,

Cross-Appellant,

versus

BRYAN COUNTY, OK, ETAL.

Defendants,

BRYAN COUNTY, OK and STACY BURNS,

Defendants-Appellants,

Cross-Appellees.

Appeal from the United States District Court for the

Eastern District of Texas

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion » > Cee, ; F.3d )

(November 29, 1995)

Appendix A

Before REYNALDO G. GARZA, WIENER, and EMILIO M.

GARZA, Circuit Judges.

PER CURIAM:

(x) The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of the

Court and a majority of the Judges who are in regular active

service not having voted in favor, (FRAP and Local Rule 35)

the Suggestion for Rehearing En Banc is also DENIED.

ENTERED FOR THE COURT:

s/ Reynaldo G. Garza

United States Circuit Judge

CLERK’S NOTE:

SEE FRAPAND LOCAL

RULES 41 FOR STAY OF THE

MANDATE.

REH FLD 11/6/95

APPENDIX B — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

DATED OCTOBER 23, 1995

JILL BROWN, Plaintiff-Appellee,

Cross-Appellant,

Vv.

BRYAN COUNTY, OK, et al., Defendants,

Bryan County, OK and Stacy Burns,

Defendants-A ppellants, Cross-

Appellees.

No. 93-5376.

United States Court of Appeals,

Fifth Circuit.

Oct. 23, 1995.

*> * *®

Appeals from the United States District Court for the

Eastern District of Texas.

(Opinion June 2, Sth Cir.,

1995, 53 F.3d 1410)

Before REYNALDO G. GARZA, WIENER and EMILIO

M. GARZA, Circuit Judges.

Appendix B

REYNALDO G. GARZA, Circuit Judge:

SUBSTITUTE PANEL OPINION'

A claim for damages was brought against Reserve Deputy

Stacy Burns (Burns) and Bryan County, Oklahoma (Bryan

County),? by Jill Brown (Mrs. Brown) pursuant to 42 U.S.C.

§ 1983 and Oklahoma law. The case proceeded to trial, in

which the jury found in favor of the Plaintiff on every

interrogatory submitted. The district court entered a judgment

in accordance with the jury’s verdict with one exception: Mrs.

Brown was not allowed to recover for loss of past income or

future earning capacity. Burns and Bryan County (collectively

the “Appellants”) appeal the judgment against them while

Mrs. Brown appeals the portion of the judgment that denied

her recovery for lost past income and future earning capacity.

For the reasons stated below we affirm the district court's

judgment.

BACKGROUND

In the early hours of May 12, 1991, Todd Brown (Mr.

Brown) and Mrs. Brown were traveling from Grayson County,

Texas, to their home in Bryan County, Oklahoma. After

crossing into Oklahoma, Mr. Brown, who was driving, noticed

a police checkpoint. He decided to avoid the checkpoint and

1. The original panel opinion, to which Judge Emilio M. Garza dissented,

Brown v. Bryan County, Ok., 53 F.3d 1410 (Sth Cir. 1995), is withdrawn and is

replaced in toto by this opinion, in which Judge Wiener continues to concur.

2. This suit was originally brought against several parties, but the district

court dismissed the claims concerning the other Defendants, leaving Bryan

County and Stacy Burns as the only Defendants.

Appendix B

headed back to Texas, allegedly to spend the night at his

mother’s house. Although the parties offer conflicting stories

leading to the pursuit, Deputy Sheriff Robert Morrison

{Deputy Morrison) and Burns stated that they “chased” the

Browns’ vehicle at a high rate of speed before successfully

pulling it over. Mr. Brown testified that he was oblivious to the

deputies’ attempts to overtake him until both vehicles had

traveled approximately three miles.’ By the time the two

vehicles eventually stopped, the parties had crossed into

Grayson County, Texas, four miles from the Oklahoma

checkpoint.

Immediately after exiting the squad car, Deputy Morrison

unholstered his weapon, pointed it toward the Browns’ vehicle

and ordered the occupants to raise their hands. Burns, who was

unarmed, * rounded the corner of the truck to the passenger's

side. After twice ordering Mrs. Brown from the vehicle, Burns

pulled her from the seat of the cab and threw her to the ground.

Burns employed an “arm bar” technique whereby he grabbed

Mrs. Brown's arm at the wrist and elbow, extracted her from

the vehicle and spun her to the ground. Mrs. Brown's impact

with the ground caused severe injury to her knees, requiring

corrective surgery.’ While Mrs. Brown was pinned to the

ground, Burns handcuffed her and left to assist Deputy

3. Apparently, the road traveled on was winding, thereby, diminishing

the visibility of other vehicles approaching from behind.

4. Although Burns was working for the Sheriff’ s Department, he was not

authorized to carry a firearm or drive a squad car.

5. Mrs. Brown received a total of four operations on her knees. Moreover

medical testimony was elicited at trial which showed that Mrs. Brown would

ultimately require total knee replacements.

Appendix B

Morrison in subduing her husband. Mrs. Brown remained

handcuffed anywhere from a minimum of thirty minutes to

just over an hour.

According to Mrs. Brown's version of the facts, which

will be reviewed in greater detail below, the deputies’ pursuit

and the force consequently applied against her were

unprovoked. Furthermore, she claims that her detention

constituted false imprisonment and false arrest. Due to the

injuries resulting from that encounter, Mrs. Brown seeks

compensation from Burns and Bryan County. Mrs. Brown

premised the county's liability, inter alia, on the hiring of

Burns by Sheriff B.J. Moore (Sheriff Moore), the county

policymaker for the Sheriff's Department.

DISCUSSION

The Appellants have presented this Court with a host of

issues to support their position that the lower court erred. For

efficiency’s sake, we will address only those points that we

believe merit review. We first address the claims against Burns

for the constitutional injuries that Brown suffered.

In their first argument, Burns and Bryan County allege

that the force applied against Mrs. Brown was proper.

Appellants claim that the evidence “undisputedly” established

that Burns’ actions on the morning of May 12, 1991, were

objectively reasonable. Therefore, the jury's findings should

be reversed.

All claims that a law enforcement officer has used

excessive force — deadly or not — in the course of an arrest,

investigatory stop, or other “seizure” of a free citizen, are

Appendix B

analyzed under the Fourth Amendment and its

reasonableness” standard. Graham v. Connor, 490 U.S. 386,

395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The test of

reasonableness under the Fourth Amendment requires

careful attention to the facts and

circumstances of each particular case,

including the severity of the crime at issue,

whether the suspect poses an immediate

threat to the safety of the officers or others,

and whether he is actively resisting arrest

or attempting to evade arrest by flight.

Id. at 396, 109 S.Ct. at 1872. The “reasonableness” of the

particular force used must be judged from the perspective of a

reasonable officer at the scene, rather than with the 20/20

vision of hindsight. /d. In cases implicating excessive force,

“not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers,” violates the

Fourth Amendment. /d. (citation omitted). Thus, the question

is whether the officer’s actions are “objectively reasonable” in

light of the facts and circumstances confronting him, without

regard to his underlying intent or motivation. /d. at 397,109

S.Ct. at 1872.

Determining whether Burns’ actions were reasonable

depends on whose story the trier of fact accepts as true.

According to the testimony of Burns and Deputy Morrison,

they were involved in a “high-speed” pursuit® after the Browns

abruptly turned their truck and sped from the checkpoint.

6. The deputies testified that they were pursuing the Browns at speeds in

excess of 100 miles per hour.

Appendix B

After a four mile “chase” both vehicles came to a full stop. The

deputies exited their vehicle and made several commands for

the occupants to raise their hands before those commands

were obeyed. After rounding the truck, Burns twice ordered

Mrs. Brown to exit the vehicle, but she did not comply. He then

perceived that she was “lean{ing) forward” in the cab of the

truck as if she were “grabbing a gun.”’ He was “scared to

death,” so he extracted her from the vehicle. He spun her

around, dropped her to the ground via the arm bar maneuver

and handcuffed her. That was the lowest amount of force he

deemed necessary to extract her and ensure he and his

partner's safety.

Certainly, Appellants’ version of the facts supports a

claim that Burns acted reasonably and with an appropriate

amount of force. The Browns, however, paint a strikingly

different picture. They testified that they were oblivious to the

attempts made by the deputies to catch up to them (the

Browns) after avoiding the Oklahoma checkpoint.’ Mr. Brown

avoided that stop because he feared the possibility of being

harassed or unnecessarily detained by the deputies.’ He

7. The fact that two firearms were found in the truck after the arrest does

not make Burns actions any more or less reasonable, unless his actions had

resulted from the observation of those guns prior to the arrest. That was not the

case, however.

8. Mr. Brown testified that initially, he did not hear any police sirens, or

observe a squad car following them. Finally, after driving for several minutes at

speeds of 40 to 55 miles per hour, he glimpsed the blue lights from the deputies’

vehicle and determined that he was being pursued. He stopped the truck at the

first available opportunity.

9. Mr. Brown alleged that he had been unnecessarily detained at that

checkpoint on several occasions.

Appendix B

further testified that he did not believe that he turned the truck

around either in a reckless fashion nor with wheels squealing

or throwing gravel, and that he drove away at a normal rate of

speed. Finally realizing that they were being pursued, Mr.

Brown pulled over only to find a gun pointed at him. They

were ordered to put their hands up and they did so.

Mrs. Brown then testified that Burns ran to her side of the

veb‘cle and ordered her to get out. She was paralyzed with fear

pate ny ie Sen According to her

tumony, however, she was not slow in responding to Burns’

orders and she did not make any sudden moves while exiting

the vehicle. Her only forward movement was to exit the truck

and, contrary to Burns’ testimony, she did not reach for

anything. Then, while she was exiting the truck, Burns

suddenly grabbed her arm, yanked her out, spun her around

and threw her to the pavement. She could not break her fall

because one arm was raised and Burns firmly gripped the

In addition to this conflicting testimony, both sides

elicited expert testimony concerning the reasonableness of

Burns’ actions. Mrs. Brown's expert, for example, concluded

that the force applied by Burns in this situation was unjustified

and excessive.’ The jury weighed all the evidence, evaluated

the conflicting testimony and rendered a verdict in Mrs.

Brown’s favor. Under our standard of review,"' when the

10. The expert did acknowledge that the force used was the lowest force

that could have been applied in extracting and subduing an arrestee without

endangering either party. However, he did not feel that the situation required

this type of force.

11. The standard for appellate review of a jury's verdict is exacting.

(Cont'd)

10a

Appendix B

evidence supports the verdict, this Court will not impose its

own opinion in contravention to the jury’s. Therefore, we will

not interfere with the fact finder’s conclusion that Burns

actions were unreasonable and that the force he used was

excessive.

Il.

Notwithstanding the jury’s findings, Appellants also

assert that there was probable cause to arrest Mrs. Brown.

They argue that the facts justified Burn’s actions, thereby

precluding Mrs. Brown's § 1983 claim for false arrest.

There is no cause of action for false arrest under § 1983

(Cont'd)

Granberry v. O' Barr, 866 F.2d 112, 113 (Sth Cir.1988). It is the same standard

as applied in awarding a directed verdict or a judgment notwithstanding the

verdict and is referred to as the “sufficiency of the evidence” standard. /d. The

standard is as follows:

“The verdict must be upheld unless the facts and

inferences point so strongly and so overwhelmingly

in favor of one party that reasonable men could not

arrive at any verdict to the contrary. If there is

evidence of such quality and weight that reasonable

and fair minded men in the exercise of impartial

judgment might reach different conclusions, the jury

function may not be invaded.”

Id. (quoting Western Co. of North Am. v. United States, 699 F.2d 264, 276 (Sth

Cir.), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983)). Stated

another way, the Court should consider all of the evidence, not just that evidence

which supports the non-movant's case, in the light and with all reasonable

inferences most favorable to the non-movant. Boeing Co. v. Shipman, 411 F.2d

365, 374 (Sth Cir. 1969) (en banc).

lla

Appendix B

unless the arresting officer lacked probable cause. Fields v.

City of South Houston, Tex., 922 F.2d 1183, 1189 (Sth

Cir.1991). To determine the presence or absence of probable

cause, one must consider the totality of the circumstances

surrounding the arrest. United States v. Maslanka, 501 F.2d

208, 212 (Sth Cir.1974),"* cert. denied, 421 U.S. 912, 95 S.Ct.

1567, 43 L.Ed.2d 777 (1975). Whether officers have probable

cause depends on whether, at the time of the arrest, the “ ‘facts

and circumstances within their knowledge and of which they

had reasonably trustworthy information were sufficient to

warrant a prudent man in believing that [the arrested} had

committed or was committing an offense’ ” /d. (quoting Beck

v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142

(1964)). Furthermore, although flight alone will not provide

probable cause that a crime is being committed, in appropriate

circumstances it may supply the “ ‘key ingredient justifying

the decision of a law enforcement officer to take action.’ ”

United States v. Bowles, 625 F.2d 526, 535 (Sth Cir.1980)

(quoting United States v. Vasquez, 534 F.2d 1142, 1145 (Sth

Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587

(1976)).

To reiterate, whether Burns had probable cause to arrest

Mrs. Brown depends in large part on whether the facts, as

Burns knew them, were sufficient to warrant a prudent man’s

belief that Mrs. Brown committed or was in the process of

committing a crime. The facts material to that determination

12. In Masianka, a police officer observed a car coming down a road and,

upon seeing his unmarked car, it turned around and sped away in flight. This

Court found that this observation provided sufficient facts for an officer to

investigate. Masianka, $01 F.2d at 213. Upon stopping the car, the officer

smelled marihuana smoke, creating the probable cause necessary to arrest the

passengers. /d.

12a

Appendix B

were hotly contested, especially the contradictory testimony

relating to the pursuit and Mrs. Brown’s movements while

exiting the vehicle. Thus, it was for the fact finder to

determine whether Burns had probable cause to arrest Mrs.

Brown. Harper v. Harris County, Tex., 21 F.3d 597, 602 (Sth

Cir. 1994). Assuming arguendo that the deputies had a

reasonable suspicion to perform an investigatory stop, we

nevertheless find the evidence sufficient to support the jury's

finding that Burns did not have probable cause to arrest Mrs.

Brown, and that his doing so violated her constitutional right

to be free from false arrest.

As the jury found that Burns did not have probable cause

to detain or arrest Mrs. Brown, it could also find from the

evidence that she was falsely imprisoned. To set out a claim

for false imprisonment the plaintiff must prove (1) an intent to

confine, (2) acts resulting in confinement, and (3)

consciousness of the victim of confinement or resulting harm.

Harper v. Merckle, 638 F.2d 848, 860 (Sth Cir. Unit B Mar.),

cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85

(1981). Under § 1983, the plaintiff must also prove the

deprivation of a constitutional right, i.e., an illegality under

color of state law. Jd. The evidence establishes that Mrs.

Brown believed herself to be under arrest: even though she had

committed no crime, she remained handcuffed for

approximately an hour before being released, during which

time she was never informed of the nature of the charges for

which she was being detained, and subsequently no charges

were ever brought. In light of such evidence, a finding of false

imprisonment is proper."

13. As this Court finds that liability was proper for the claims of excessive

force, false arrest and false imprisonment, it need not address the state law issues

involved herein.

13a

Appendix B

ITI.

Appellants also contest the jury's finding that Burns was

not entitled to qualified immunity. A proper analysis of a

qualified immunity defense requires us to conduct a two

(sometimes three) prong inquiry. See Siegert v. Gilley, 500

U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Harlow v.

Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396

(1982). First, we determine “whether the plaintiff has asserted

a violation of a constitutional right at all.” Siegert, 500 U.S. at

232, 111 S.Ct. at 1793. Second, we establish whether the law

was Clearly established at the time of the official’s action.

Siegeri, 500 U.S. at 233, 111 S.Ct. at 1794; Harlow, 457 U.S.

at 815-19, 102 S.Ct. at 2737-38. Third, we evaluate the

“objective reasonableness of [the] official’s conduct as

measured by reference to clearly established law.” Harlow,

457 U.S. at 818,102 S.Ct. at 2739. It is clear that by 1991, use

of excessive force, false arrest and false imprisonment had

been held to violate citizens’ constitutional rights, thus the

qualified immunity defense fails if Burns did not act with

probable cause. And as the trier of fact determined that Burns

did not have probable cause to arrest Mrs. Burns, he is not

entitled to qualified immunity."

IV.

Burns asserts that the evidence is insufficient to support

the jury’s award of punitive damages. He argues that

14, “While it is correct that the reasonableness of the arresting officer's

conduct under the circumstances is a question of law for the court to decide, such

is not the case where there exist material factual disputes . . .” Harper v. Harris

County, Tex., 21 F.3d 597, 602 (Sth Cir.1994) (discussing officer's qualified

immunity).

l4a

Appendix B

application of the arm bar technique did not rise to a level of

“flagrant” conduct and further, that it did not evidence malice

or give rise to an inference of evil intent.'* Nevertheless, the

Supreme Court has ruled that punitive damages are

recoverable in a § 1983 action. Smith v. Wade, 461 U.S. 30, 35,

103 S.Ct. 1625, 1629, 75 L.Ed.2d 632 (1983). One of the

primary reasons for § 1983 actions and punitive damages is to

deter future egregious conduct. /d. at 49, 103 S.Ct. at 1636. A

jury may assess punitive damages in an action under § 1983 if

the defendant’s conduct is shown to be motivated by evil

motive or intent, or involved reckless or callous indifference

to the federally protected rights of others. Jd. at 56, 103 S.Ct.

at 1640. The question is whether the acts of Burns, which

caused the deprivation of Mrs. Brown's constitutional rights,

rose to a level warranting the imposition of punitive damages.

In light of the evidence before it, we believe that the jury could

properly infer that Burns’ acts were unjustified and that he

acted with callous or reckless indifference to Mrs. Brown's

constitutional rights. Therefore, punitive damages were

justified.

On cross-appeal, Mrs. Brown argues that it was error for

the district court to grant Appellants’ Motion for Judgment

Notwithstanding the Jury Verdict (JNOV) as it relates to her

claims for loss of past income and future earning capacity."

15. Mrs. Brown did not respond to this argument in her briefs.

16. In the order, the district court stated “[t)he jury awarded plaintiff

substantial damages in this case, including $36,000 for loss of income in the past

and $180,000 for loss of earning capacity in the future. After a review of the

evidence in this case, the Court is convinced that there is no legally sufficient

(Cont'd)

15a

Appendix B

Mrs. Brown asserts that neither Bryan County nor Burns

specifically raised an issue concerning the sufficiency of the

evidence supporting that portion of the judgment, thus the

district court’s action was unjustified and the award must be

reinstated. She insists that there is absolutely no legal

predicate on which the district court could base its actions.

Therefore, as evidence was offered to support this award, Mrs.

Brown argues that the original jury award should be

reinstated.

This Court has determined that it “would be a

constitutionally impermissible re-examination of the jury’s

verdict for the district court [or this Court] to enter judgment

n.o.v. ON a ground not raised in the motion for directed

verdict.” McCann v. Texas City Refining, Inc., 984 F.2d 667,

672 (Sth Cir. 1993). It is undisputed that the Appellants did not

address the sufficiency of the evidence supporting the jury's

award for loss of past income and future earning capacity in

their motions for either directed verdict or JNOV. Thus, the

lower court should not have decided whether sufficient

evidence exists to support this award. However, as the

Appellants point out, Mrs. Brown failed to object to this error

at trial, and it is the “unwavering rule in this Circuit that issues

raised for the first time on appeal are reviewed only for plain

error.” /d. In other words, this Court will reverse only if the

error complained of results in a “manifest miscarriage of

justice.” Jd. Furthermore, contrary to Mrs. Brown’s

contention, the issue is not whether any evidence exists to

support the jury verdict. Instead, the issue is whether the

district court’s action constituted plain error.

(Cont'd)

evidentiary basis for the award of these damages. Therefore, judgment should

be granted for the defendants on piaintiff s claims for loss of income in the past

and loss of earning capacity in the future.”

16a

Appendix B

Upon reviewing the record, we do not believe that the

lower court’s error resulted in a manifest miscarriage of

justice. The only evidence offered in support of the award

comprised of Mrs. Brown's testimony, which reflected that

she had accepted an offer to commence work a few days after

the day of the incident. Her compensation would have been

measured on a commission basis, which she believed would

have paid between $1,500 to $1,800 a month. The district

court’s ruling that this evidence was lacking does not arise to

plain error. Mrs. Brown's failure to object at the appropriate

time denied the district court the opportunity to rectify any

errors. Therefore, the court's ruling will stand.

VI.

Having found that Burns violated Mrs. Brown's

constitutional rights, the next inquiry concerns the possible

liability of Bryan County. Liability will accrue for the acts of a

municipal official when the official possesses “final

policymaking authority” to establish municipal policy with

respect to the conduct that resulted in a violation of

constitutional rights. Pembaur v. City of Cincinnati, 475 U.S.

469, 483, 106 S.Ct. 1292, 1300, 89 L.Ed.2d 452 (1986)

(plurality opinion).

Bryan County stipulated that Sheriff Moore was the final

policymaker for the Sheriff's Department. As such, it is

patently clear that Sheriff Moore”’ is an official “whose acts or

edicts may fairly be said to represent official policy and whose

17. Appellants failed to object to the jury instructions which referred to

Sheriff Moore as the final policyrnaker. See Gonzalez v. Ysleta Indep. Sch. Dist.,

996 F.2d 745, 754 (Sth Cir. 1993) (failure to lodge an objection to court's

instructions regarding the final policymaker waived the issue).

17a

Appendix B

decisions therefore may give rise to municipal liability under

§ 1983.” Id. at 480, 106 S.Ct. at 1299 (citing Monell v.

Department of Social Services, 436 U.S. 658, 694, 98 S.Ct.

2018, 2037, 56 L.Ed.2d 611 (1978)).

Mrs. Brown argues that a municipality can be held liable

under § 1983 based on a final policymaker’s single decision

regarding the hiring or training of one individual. Appellants,

on the other hand, argue that § 1983 liability cannot attach on

the basis of a policymaker’s single, isolated decision to hire or

train one individual.

An argument similar to the Appellants’ was rejected by

this Court in Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d

745, 754 (Sth Cir. 1993). In Gonzalez, the Ysleta Independent

School District (YISD) was sued for a single decision to

transfer a teacher accused of sexually harassing a student,

rather than removing him from the classroom. YISD argued

that this ad hoc, isolated decision, even when made by

policymakers, did not constitute the sort of “policy” upon

which municipal liability could be predicated under Monell.

This was especially true there, insisted YISD, as the decision

was contrary to the district’s own formal policy for handling

such matters. This argument proved unpersuasive.

Based on the facts before it, the Gonzalez panel concluded

that the final policymaker’s single, conscious decision, i.e.,

the Board of Trustee’s decision to transfer the teacher rather

than remove him from the classroom, constituted a “policy”

attributable to the school district. Gonzalez, 996 F.2d at 754.

This conclusion was logical, as “[n]o one has ever doubted . . .

that a municipality may be liable under § 1983 for a single

decision by its properly constituted legislative body ...

18a

Appendix B

because even a single decision by such a body unquestionably

constitutes an act of official government policy.” Pembaur,

475 U.S. at 480, 106 S.Ct. at 1298 (emphasis added).'* To deny

compensation to the victim in such a case would be contrary to

the fundamental purpose of § 1983. Jd. at 481, 106 S.Ct. at

1299. So, it is clear that a single decision may create municipal

liability if that decision were made by a final policymaker

responsible for that activity.

Mrs. Brown argues that Burns’ lengthy criminal history

should have prevented Sheriff Moore from hiring him. Burns’

history revealed a string of offenses that, she claims,

demonstrates a disregard for the law and a propensity for

violence. Moreover, she maintains that a thorough

investigation of Burns’ background would have revealed that

his parole had been violated by his numerous offenses. Thus,

she argues that Burns’ screening and subsequent employment

by Sheriff Moore were inadequate and subjected Bryan

County to liability.

During the application process Sheriff Moore ordered a

printout of Burns’ criminal record, which revealed the

following citations and arrests: nine moving traffic violations,

Actual Physical Control (APC) of a motor vehicle while

intoxicated, driving with a suspended license, arrest for

18. In Pembaur, the Supreme Court held that a county prosecutor's single

decision, ordering law officers to forcibly enter a dentist's office, was

actionable under § 1983. 475 U.S. at 480-81, 106 S.Ct. at 1298-99. However, the

Court cautioned that liability would only attach where the course of action was

deliberately chosen by a decisionmaker possessing final authority to establish

municipal policy. /d. at 481, 106 S.Ct. at 1299. We note that Mr. Pembaur's

§ 1983 action was premised on a theory of municipal policy and not on a theory

of municipal custom. /d.n. 10.

19a

Appendix B

assault and battery, conviction for possession of a false

identification and an arrest for resisting lawful arrest. When

Sheriff Moore was examined about Burns’ “rap sheet,” the

following exchange took place:

Q. Did you make an inquiry with the

proper authorities in Oklahoma to get a

copy of Mr. Burns’ rap sheet?

A. I run his driving record, yes.

Q. Allright. And you can get that rap sheet

immediately, can’t you?

A. Itdon’t take long.

Q. All right. And did you not see on there

where Mr. Burns had been arrested for

assault and battery? Did you see that one on

there?

A. I never noticed it, no.

Q. Did you notice on there he'd been

arrested or charged with [Driving While

License Suspended] on several occasions?

A. I’m sure I did.

Q. All right. Did you notice on there that

he'd been arrested and convicted for

possession of false identification?

20a

Appendix B

A. No, I never noticed that.

Q. Did you notice on there where he had

been arrested for public drunk?

A. He had a long record.

Q. Did you notice on there where he had

been arrested for resisting arrest?

A. No, I didn’t.

Q. Did you make any inquiries after you

got that information to determine exactly

what the disposition of those charges were?

A. No, I didn’t.

Q. Did you not make any attempt to find

out the status of Mr. Burns’ criminal record

at that time?

A. As far as him having a criminal record, I

don’t believe he had a criminal record. It

was just all driving and — most of it was,

misdemeanors.

Q. Well, did you make any attempts to

determine whether or not Mr. Burns was on

probation at the time you placed him out

there?

21a

Appendix B

A. I didn’t know he was on probation, no.

Q. Did you make any effort to find out?

A. I didn’t have no idea he was on

probation, no.

Q. Well, you saw on his rap sheet where he

had been charged with [Driving Under the

Influence}, didn’t you?

A. [had heard about that. I don’t remember

whether I had seen it on the rap sheet or not.

Q. So you'd heard about it?

A. I don’t remember whether I seen it on

the rap sheet or heard about it.

Besides this damaging testimony, Mrs. Brown's expert '’

testified regarding the importance of properly screening law

enforcement applicants. The expert testified that a thorough

investigation process is needed to weed out individuals who

enter the police force for the wrong reasons, for example,

because “they like to exert their power.” In light of Burns’

arrest record, the expert concluded that he showed a “blatant

19. The record shows that the expert, Dr. Otto Schweizer, had spent over

twenty years in law enforcement, including, several years as a field training

officer, a police chief and as a professor of criminal justice and police

administration at the University of Central Oklahoma.

22a

Appendix B

disregard for the law and problems that may show themselves

in abusing the public or using excessive force,” thereby

rendering Burns unqualified for a position in law enforcement.

The expert further testified that as a minimum, Sheriff Moore

should have investigated the disposition of the charges against

Burns. Even Appellants’ expert, Ken Barnes, agreed that

Burns’ criminal history should have caused some concern,

meriting a further review of the applicant. More importantly,

when Mr. Barnes was asked if he would have hired Burns, he

replied that it was “doubtful.”

From the foregoing evidence, the jury could have

reasonably inferred that Sheriff Moore “closed his eyes” to

Burns’ background when hiring him. This inference is

reinforced by Burns’ familial relations within the Sheriff's

Department: not only is Burns the son of Sheriff Moore's

nephew, but Burns’ grandfather had been involved with the

department for more than sixteen years. Alternatively, the jury

could have inferred that Sheriff Moore was indeed aware of

Burns’ past problems with the law and was therefore cognizant

of his deficient character, but nevertheless opted to employ

him because he was “family”. Again, the innuendos of

nepotism only bolster the inference that Burns would have

been hired regardless of his criminal history.

We believe that the evidence supports the jury's

conclusion that Sheriff Moore did not conduct a good faith

investigation of Burns. Although it is true that Sheriff Moore

20. In light of the string of arrests and convictions, a jury could properly

conclude that Burns had a propensity for violence and a disregard for the law,

thus, precluding his employment. We deem such a conclusion proper, even

though Burns had no felonies on his record. Oklahoma law prevents a sheriff

from hiring an individual convicted of a felony or a crime involving moral

turpitude. OKLA. STAT.ANN. tit. 70, § 331 1(d)(2) (West 1994).

23a

Appendix B

ran a NCIC check of Burns, this action was futile given that

Burns’ arrest history was all but ignored. Sheriff Moore

conceded that Burns’ record was so long that he did not bother

to examine it. And, except for this feeble attempt to screen

him, no other effort was made to investigate Burns. A further

examination would have revealed that Burns had repeatedly

violated probation, and that a warrant was subsequently issued

for his arrest. In light of this history, it should have been

obvious to Sheriff Moore that a further investigation of Burns

was necessary.

We also find the evidence sufficient for a jury to conclude

that Sheriff Moore's decision to hire Burns amounted to

deliberate indifference to the public's welfare. See Stokes v.

Bullins, 844 F.2d 269, 275 (Sth Cir.1988); Wassum v. City of

Bellaire, Texas, 861 F.2d 453, 456 (Sth Cir.1988); Benavides v.

County of Wilson, 955 F.2d 968, 972 (Sth Cir.), cert. denied, __

U.S. __, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992). In light of the

law enforcement duties assigned to deputies, the obvious need

for a thorough and good faith investigation of Burns, and the

equally obvious fact that inadequate screening of a deputy

could likely result in the violation of citizens’ constitutional

rights, Sheriff Moore can reasonably be said to have acted

with deliberate indifference to the public’s welfare when he

hired Burns. See City of Canton v. Harris, 489 U.S. 378, 390,

109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989).”' The failure to

conduct a good faith investigation of the prospective

21. Further, the lower court's charge to the jury was proper: “Sheriff B_J.

Moore would have acted with deliberate indifference in adopting an otherwise

constitutional hiring policy for a deputy sheriff the need for closer scrutiny of

Stacy Burns’ background was so obvious and the inadequacy of the scrutiny

given so likely to result in violations of constitutional rights, that Sheriff B_J.

Moore can be reasonably said to have been deliberately indifferent to the

constitutional needs of the Plaintiff.”

24a

Appendix B

employee amounted to Sheriff Moore deliberately closing his

eyes to the Burns’ background.” Such indifferent behavior

cannot be tolerated when the prospective applicant will be

employed in a position of trust and authority.

Additionally, the jury could find that hiring an

unqualified applicant and authorizing him to make forcible

arrests actually caused the injuries suffered by Mrs. Brown.

That is, the policymaker’s (Sheriff Moore’s) single action of

hiring Burns without an adequate review of his background

directly caused the constitutional violations of which Mrs.

Brown now complains. Benavides, 955 F.2d at 972; Fraire v.

City of Arlington, 957 F.2d 1268, 1277 (Sth Cir.) (section 1983

liability attaches only “where the municipality itself causes

the constitutional violation” at issue), cert. denied, __U.S.__,

113 S.Ct. 462, 121 L.Ed.2d 371 (1992). Therefore, the

violation of Mrs. Brown’s constitutional rights was

affirmatively linked to Bryan County's decision to hire Burns

for law enforcement activities. Stokes v. Bullins, 844 F.2d 269,

276 (6th Cir. 1988).

CONCLUSION

After a thorough review of the record, this Court finds that

the evidence supports the jury's verdict holding Burns and

Bryan County liable for Mrs. Brown's § 1983 claim based on

her false arrest, false imprisonment and the inadequate hiring

of Burns. We also find that the district court did not plainly err

22. It is certainly true that the Sheriff had conducted adequate

background checks on other deputies and assured himself that they were

certified before putting them on the street, but the fact that he diverged from that

practice as to this one individual does not save the County from liability. See

Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.24 745, 754 (Sth Cir.1993).

25a

Appendix B

in dismissing the jury’s award for Mrs. Brown's loss of past

income and future earning capacity. For these reasons, the

jury’s verdict stands and the district court's judgment is

AFFIRMED.

26a

Appendix B

EMILIO M. GARZA, Circuit Judge, concurring in part

and dissenting in part:

Although I concur in most of the opinion of the Court, I

dissent from Part VI of the opinion and the judgment as to

Bryan County. My disagreement is with the majority's

treatment of the Monell' issue — “it is clear that a single

decision may create municipal liability if that decision were

made by a final policymaker responsible for that activity” maj.

op. at__ — which is based on our prior opinion in Gonzales v.

Ysleta Indep. Sch Dist., 996 F.2d 745, 754 (Sth Cir.1993).

Clearly, Sheriff Moore was a policymaker under Monell;

clearly, he hired Reserve Deputy Stacy Burns; clearly, there is

sufficient evidence to support a finding that Sheriff Moore

was deliberaicly indifferent in failing to conduct an adequate

background investigation.? However, one inadequate

background investigation, even by a municipal policymaker,

is not the “unconstitutional municipal policy” of which

Monell, Pembaur v. City of Cincinnati, 475 U.S. 469, 106

S.Ct. 1292, 89 L.Ed.2d 452 (1986), or City of Oklahoma City v.

Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985),

speaks. This error, in my opinion, flows from blurring the

1. Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56

LEd.2d 611 (1978).

2. Under Stokes v. Bullins, 844 F.2d 269 (Sth Cir. 1988), “We. . .requirea

plaintiff {in cases such as this} to establish actual knowledge of the seriously

deficient character of an applicant or a persistent, widespread pattern of the

hiring of policemen, for instance, with a background of unjustified

violence.” /d. at 275 n. 9. Although the majority does not state explicitly that the

jury could have found that Sheriff Moore actually knew of Burnns’ criminal

record, because the evidence supports such a finding, I do not disagree with the

majority's conclusion that Sheriff Moore was deliberately indifferent.

27a

Appendix B

distinction made clear in Tuttle — “where the policy relied

upon is not itself unconstitutional, considerably more proof

than the single incident will be necessary in every case to

establish both the requisite fault on the part of the

municipality, and the causal connection between the ‘policy’

and the constitutional deprivation.” Tuttle, 471 U.S. at 824,

105 S.Ct. at 2436 (footnote omitted) (emphasis added).

I do not agree, therefore, with the majority’s implicit

reasoning, explicitly stated in Gonzalez, that any “distinction

between policies that are themselves unconstitutional and

those that cause constitutional violations” is “metaphysical.”

Gonzalez, 996 F.2d at 754 & n. 11 (quoting Tuttle, 471 U.S. at

833 n. 5, 105 S.Ct. at 2441 n. 8 (Brennan, J., concurring)). The

majority incorrectly, in my opinion, follows our opinion in

Gonzalez in holding that Sheriff Moore’s single decision

created municipal liability, without reconciling the Supreme

Court’s instruction in Tuttle that a jury must have

“considerably more proof than the single incident” before it

can find causation.’ There is a constitutional difference

between a sheriff ordering his deputies to violate citizen’s

constitutional rights, see, e.g., Pembaur, 475 at 484-85, 106

S.Ct. at 1300-01 (imposing liability for County Prosecutor's

direct order to police officers to violate Fourth Amendment),

and one that hires a reserve deputy without conducting an

adequate background investigation. In the latter instance,

greater proof is required in order to establish the connection

between the policy and the constitutional violation. See

Pembaur, 475 U.S. at 482 n. 11, 106 S.Ct. at 1299-1300 n. 11

3. Indeed, because Gonzalez eventually was decided on the question of

deliberate indifference, the causation question was never firmly resolved. See

Gonzalez, 996 F.2d at 754 (stating only that the policy “may have produced or

caused the constitutional violation”).

28a

Appendix B

(plurality opinion) (noting that Tuttle required the plaintiff to

“establish that the unconstitutional act was taken pursuant toa

municipal policy rather chan simply resulting from such a

policy in a ‘but for’ sense”); see also City of Canton v. Harris,

489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412

(1989) (requiring a “direct causal link between a municipal

policy or custom and the alleged constitutional deprivation”);

Benavides v. County of Wilson, 955 F.2d 968, 972 (Sth Cir.)

(requiring plaintiff to show that “the inadequate hiring .. .

policy directly caused the plaintiff's injury”), cert. denied, __

U.S. __, 113 S.Ct. 79, 121 L.Ed.2d 43 (1992).

The Court in Pembaur concluded “that municipal liability

may be imposed for a single decision by municipal

policymakers under appropriate circumstances.” Pembaur,

475 U.S. at 480,106 S.Ct. at 1298. The Court also stated that

Tuttle was “consistent” with its holding that “the policy which

ordered or authorized an unconstitutional act can be

established by a single decision by proper municipal

policymakers.” /d. at 482 n. 11, 106 S.Ct. 1299-1300 n. 11

(plurality opinion). Therefore, it is not clear that Sheriff

Moore’s single act of deliberate indifference in fact

established “policy,” even though Pembaur holds that a single

act “may” or “can” establish policy “under appropriate

circumstances.” I do not believe that the Court in Pembaur

intended to suggest that any and every act by a final municipal

policymaker constitutes, without more, “municipal policy.”

Sheriff Moore’s deliberate indifference may have caused the

constitutional violation in a “but for” sense, but it did not

directly “order” or “authorize” the violation. Where the

policymaker's decision does not directly “order” or

“authorize” the constitutional violation, something more than

a single decision is required in order to find that this decision

29a

Appendix B

in fact constitutes “municipal policy,” such that we can hold

the county liable. Therefore, in my view, Brown failed to

establish the constitutional liability of the county on the basis

of Sheriff Moore's single decision.‘ Accordingly, I would

affirm the district court in all aspects, except that I would

reverse as to Bryan County.

4. I emphasize that it is the Coisnty's constitutional liability and not

Sheriff Moore's tort liability that I question. See DeShaney v. Winnebago

County Dep't of Social Servs., 489 U.S. 189, 201, 109 S.Ct. 998, 1006, 103

L.Ed.2d 249 (1989) (explaining that Due Process Clause does not

constitutionalize “every tort committed by a state actor”); Collins v. City of

Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 1070, 117 L.Ed.2d 261

(1992) (“[W]e have previously rejected claims that the Due Process Clause

should be interpreted to impose federal duties that are analogous to those

traditionally imposed by state tort law.” (citations omitted)); Doe v. Taylor

Indep. Sch. Dist., 15 F.3d 443, 450 (Sth Cir.) (en banc) (“Section 1983 imposes

liability for violations of rights protected by the Constitution, not for violations

of duties of care arising out of tort law.” (quoting Baker v. McCollan, 443 U.S.

137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979))), cert. denied, U.S. __,

115 S.Ct. 70, 130 L.Ed.2d 25 (1994).

30a

APPENDIX C -—— ORDER AND JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS, SHERMAN DIVISION

FILED SEPTEMBER 20, 1993

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

NO. 4:91cv229

JILL BROWN

STACY BURNS and THE BOARD OF THE COUNTY

COMMISSIONERS OF BRYAN COUNTY, OKLAHOMA

ORDER

On this day came on for consideration Defendants’ Motion

For Judgment Notwithstanding The Jury Verdict, and the Court

having considered the motion and the response thereto, is of the

opinion that the motion should be denied. The Court has treated

the motion as a motion for judgment as a matter of law in actions

tried by a jury pursuant to Rule 50, FED. R. CIV. P.

Defendants argue the following four grounds in support of

their motion:

1. There was insufficient evidence to support the

submission of the interrogatories to the jury which provided the

basis for liability of defendant Bryan County under 42 U.S.C.

§ 1983.

3la

Appendix C

2. The evidence in this case shows a single incident of

arguably negligent hiring from which a single incident involving

that same person occurred, when in order to recover under § 1983

plaintiff had to show a persistent and widespread practice of the

sheriff of improperly hiring and training reserve deputies.

3. Bryan County is not liable under the Oklahoma Tort

Claims Act, Title 51, Chapter 5, Oklahoma Statutes Annotated,

because of the exemptions from liability set forth in § 155(5) and

(28).

4. Defendant Stacy Burns was entitled to qualified

immunity.

The Court will consider defendants’ first and second

grounds together. It is undisputed from the record in this case that

Sheriff B. J. Moore (“Sheriff Moore”) was the official

policymaker for Bryan County, Oklahoma in the operation of the

sheriff's department and the area of law enforcement. Since the

holding of the Supreme Court in Pembaur v. City of Cincinnati,

106 S.Ct. 1292, 1298 (1986) it is clear that liability may be

imposed on a municipality under 42 U.S.C. § 1983 for a single

decision by a policymaker. The Fifth Circuit followed the

reasoning of the Supreme Court in Pembaur to hold that a

municipality may be held liable for the illegal or unconstitutional

acts of its final policymakers. Turner v. Upton County, Texas, 915

F.2d 133, 136 (Sth Cir. 1990), cert. denied 498 U.S. 1069, 111

S.Ct. 788 (1991). The Fifth Circuit also relied on Pembaur in

holding that the single decision of a local official who has final

policy making authority is the official policy of a municipality

upon which liability may rest under 42 U.S.C. § 1983. Guidry v.

Broussard, 897 F.2d 181, 182 (Sth Cir. 1990).

The Court has reviewed the evidence offered by plaintiff and

32a

Appendix C

admitted in this case and is persuaded that the evidence supported

the submission of the interrogatories to the jury which support the

liability of defendants in this case. Plaintiff produced substantial

evidence of defendant Stacy Burns’ criminal record and prior

conduct which raised an issue as to his suitability to act as a

reserve deputy sheriff for Bryan County. This information was

either available to Sheriff Moore or could have been easily

obtained by the sheriff at the time he selected Stacy Burns to act

as a reserve deputy sheriff. Plaintiff also produced evidence that

Sheriff Moore made a decision to permit Stacy Burns to work as a

reserve deputy sheriff at a driver's license checkpoint with no

training or instructions that would equip him to determine if he

had a right to pursue plaintiff into Texas and arrest and detain her

there under the existing circumstances. The Oklahoma officers

only had probable cause to believe that the driver of the

automobile in which plaintiff was a passenger had committed

misdemeanor offenses. Defendants argue that Stacy Burns was

not hired. Whether he was officially hired or not, the county's

policymaker selected him as a reserve deputy sheriff and

authorized him to work as a reserve deputy sheriff. The evidence

submitted by plaintiff supports a finding that Sheriff Moore made

a conscious decision, when other alternatives were available, to

select Stacy Burns as a reserve deputy sheriff and to allow him to

work at the driver’s license checkpoint. Plaintiff's evidence

raised an issue as to whether there was a need for closer scrutiny

of Stacy Burns’ background before he was selected as a reserve

deputy sheriff and an issue as to whether this need was so obvious

and the inadequacy of the scrutiny given was so likely to result in

violations of constitutional rights that Sheriff Moore could be

reasonably said to have been deliberately indifferent to the

constitutional needs of the plaintiff. Plaintiff's evidence also

raised an issue as to whether or not, in light of the duties assigned

to Stacy Burns, the need for more or different training was so

obvious and the inadequacy of training so likely to result in

33a

Appendix C

violations of constitutional rights, Sheriff Moore could be

reasonably said to have been deliberately indifferent to the

constitutional needs of the plaintiff. In the opinion of the Court,

plaintiff's evidence met the necessary requirements for the

creation of all of the fact issues necessary to establish municipal

liability under City of Canton, Ohio v. Harris, 109 §.Ct. 1197

(1989). Plaintiff's evidence also created fact issues as to whether

or not the sheriff acted negligently in the selection of Stacy Burns

as a reserve deputy sheriff and permitting him to work in that

capacity.

The actions of Sheriff Moore in the selection and training of

Stacy Burns occurred in Oklahoma. The arrest and detention of

plaintiff by Stacy Burns occurred in Texas. Under the principle of

comity, Texas courts should give effect to the Oklahoma Tort

Claims Act unless the law is contrary to the public policy of

Texas. Lee v. Miller, 800 F.2d 1372, 1375 (Sth Cir. 1986). The

Court has determined that the Oklahoma Tort Claims Act is not

contrary to the public policy of Texas. The Court must now

determine whether the exceptions to liability under the

Oklahoma Tort Claims Act claimed by defendants apply in this

case. Section 155(5) exempts from liability a loss or claim that

results from “performance of or the failure to exercise or perform

any act or service which is in the discretion of the state or political

subdivision or its employees.” This discretionary function

exemption is an extremely limited exemption from goverumental

liability. Nguyen v. State, 783 P.2d 962, 964 (Okla. 1990).

Oklahoma has adopted the planning operational approach,

whereby initial policy or planning decisions are discretionary,

and thus exempt, while operational decisions made in the

implementation and performance of the policy are ministerial.

All discretion is exhausted by the development and adoption of a

policy, and all acts thereafter in the implementation of the policy

in specific instances are operational. The evidence in this case

34a

Appendix C

shows that the initial formulation of the policy to be followed in

the selection of reserve deputy sheriffs and the training to be

given reserve deputy sheriffs before placing them on duty at

driver's license checkpoints was discretionary, but Sheriff Moore

performed a ministerial act when he selected Stacy Burns and

when he placed him on duty as a reserve deputy sheriff. These

decisions of Sheriff Moore were not decisions based upon

balancing competing interests. His actions fall under the

operational portions of the test and are not exempt under the

discretionary act exemption in § 155(5).

Section 155(28) provides for an exemption from liability

under the Oklahoma Torts Claims Act for “[A}cts or omissions

done in conformance with then recognized standards.” The

evidence in this case does not support a finding that the selection

of Stacy Burns and the placing him on duty at the driver's license

checkpoint was done in conformance with any then current

recognized standard. This exemption does not apply to this case.

Defendants’ last argument is that defendant Stacy Burns was

entitled to qualified immunity. The Court submitted the disputed

fact issues as to qualified immunity to the jury. The Court

instructed the jury on the law of qualified immunity and the jury

found that Stacy Burns was not entitled to qualified immunity.

The jury awarded plaintiff substantial damages in this case,

including $36,000 for loss of income in the past and $180,000 for

loss of earning capacity in the future. After a review of the

evidence in this case, the Court is convinced that there is no

legally sufficient evidentiary basis for the award of these

damages. Therefore, judgment should be granted for the

defendants on plaintiff's claims for loss of income in the past and

loss of earning capacity in the future.

35a

Appendix C

For the above reasons, defendants’ motion should be denied

in part and granted in part. Judgment should be entered for

plaintiff in accordance with the jury's verdict, except that

plaintiff should recover nothing for loss of income in the past and

loss of earning capacity in the future.

IT IS SOORDERED.

Signed this 20th day of September, 1993.

s/ Paul Brown

UNITED STATES DISTRICT JUDGE

Mid: 9-22-93 to: Kennedy

Sheridan

Hill

Ellis

36a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

NO. 4:9lcv229

JILL BROWN

STACY BURNS and THE BOARD OF THE COUNTY

COMMISSIONERS OF BRYAN COUNTY, OKLAHOMA

JUDGMENT ON JURY VERDICT

This action came on for trial before the Court and a jury, the

undersigned presiding, and the issues having been duly tried and

the jury having duly rendered its verdict,

It is ORDERED and ADJUDGED that the plaintiff, Jill

Brown, recover of defendant The Board of the County

Commissioners of Bryan County, Oklahoma, and defendant

Stacy Burns, jointly and severally, the sum of Seven Hundred

Eleven Thousand Three Hundred Two and No/100 Dollars

($711,302.00) as actual damages and the sum of Sixty-Five

Thousand and No/100 Dollars ($65,000.00) as attorneys’ fees,

and from defendant Stacy Burns the sum of Twenty Thousand and

No/100 dollars ($20,000.00) as punitive damages, with interest

thereon at the rate of 3.43 percent per annum from date of

judgment until paid, together with all costs incurred by plaintiff

herein, and that plaintiff have execution therefor.

37a

Appendix C

It is further ORDERED and ADJUDGED that plaintiff, Jill

Brown, recover of defendant The Board of the County

Commissioners of Bryan County, Oklahoma, and defendant

Stacy Burns, jointly and severally, attorneys’ fees in the amount

of Twelve Thousand Five Hundred and No/100 Dollars

($12,500.00) should this case be appealed to the United States

Court of Appeals for the Fifth Circuit, the sum of Five Thousand

and No/100 Dollars ($5,000.00) for making or responding to an

application for Writ of Certiorari to the Supreme Court of the

United States of America, and the sum of Five Thousand and No/

100 dollars ($5,000.00) if application for Writ of Certiorari is

granted by the Supreme Court of the United States.

Signed this 20th day of September, 1993.

s/ Paul Brown

UNITED STATES DISTRICT JUDGE

Mid 9-22-93 to: Kennedy

Sheridan

Hill

Ellis

38a

APPENDIX D — JURY VERDICT OF THE UNITED

STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF TEXAS, SHERMAN DIVISION

DATED APRIL 19, 1993

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

4:91CV229

JILL BROWN

Plaintiff

STACY BURNS, and BRYAN COUNTY, OKLAHOMA

Defendants

Verdict of the Jury

Your verdict will consist of answers to the following

questions.

Interrogatory No. |

Do you find from a preponderance of the evidence that Stacy

Burns arrested Jill Brown without probable cause on May 12,

1991?

We do

(Answer “We do” or “We do not”)

If you have answered Interrogatory No. 1 “We do,” then proceed

to Interrogatory No. 2. Otherwise, proceed to Interrogatory No. 3.

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Interrogatory No. 2

Do you find from a preponderance of the evidence that

plaintiff's claim for false arrest is barred under the doctrine of

qualified immunity as instructed by the Court?

We do not

(Answer “We do” or “We do not”)

Proceed to Interrogatory No. 3.

Interrogatory No. 3

Do you find from a preponderance of the evidence that Stacy

Burns employed excessive force upon the plaintiff on May 12,

1991?

We do

(Answer “We do” or “We do not”)

If you have answered Interrogatory No. 3 “We do,” then

proceed to Interrogatory No. 4. Otherwise, proceed to

Interrogatory No. 5.

Interrogatory No. 4

Do you find from a preponderance of the evidence that

plaintiff's claim for excessive force against the defendant Stacy

Burns is barred under the doctrine of qualified immunity as

instructed by the Court?

We do not

(Answer “We do” or “We do not”)

Proceed to Interrogatory No. 5.

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Interrogatory No. 5

Do you find from a preponderance of the evidence that

defendant Stacy Burns is liable to the plaintiff for false

imprisonment?

We do

(Answer “We do” or “We do not”)

If you have answered (1) “We do” to Interrogatory No. | and “We

do not” to Interrogatory No. 2; (2) “We do” to Interrogatory No. 3

and “We do not” to Interrogatory No. 4; or (3) “We do” as to

Interrogatory No. 5, then proceed to Interrogatory No. 6.

Otherwise proceed no further.

Interrogatory No. 6

Do you find from a preponderance of the evidence that the

hiring policy of Bryan County in the case of Stacy Burns, as

instituted by its policymaker B.J. Moore, was so inadequate as to

amount to deliberate indifference to the constitutional needs of

the plaintiff?

We do

(Answer “We do” or “We do not”)

Proceed to Interrogatory No. 7.

Interrogatory No. 7

Do you find from a preponderance of the evidence that the

training policy of Bryan County in the case of Stacy Burns, as

instituted by its policymaker B.J. Moore, was so inadequate as to

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amount to deliberate indifference to the constitutional needs of

the plaintiff?

We do

(Answer “We do” or “We do not”)

Proceed to Interrogatory No. 8.

Interrogatory No. 8

Do you find from a preponderance of the evidence that Bryan

County, acting through Sheriff B.J. Moore, was negligent in the

hiring of reserve deputy sheriff Stacy Burns?

We do

(Answer “We do” or “We do not”)

Proceed to Interrogatory No. 9.

Interrogatory No. 9

Do you find from a preponderance of the evidence that Bryan

County, acting through Sheriff B.J. Moore, was negligent in the

training of reserve deputy sheriff Stacy Burns?

We do

(Answer “We do” or “We do not”)

Proceed to Interrogatory No. 10.

Interrogatory No. 10

What sum of money, if any, do you find from a

preponderance of the evidence would fairly and reasonably

compensate the plaintiff for any damages proximately caused by

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the defendant Stacy Burns or the defendant Bryan County acting

through its policymaker Sheriff B.J. Moore?

Answer in dollar and cents.

a. Past physical pain $ 5,000

b. Future physical pain $ 10,000

c. Past mental pain and anguish $ 1,000

d. Future mental pain and anguish $ 1,000

e. Past physical impairment $ 75,000

f. Future physical impairment $ 360,000

g. Past disfigurement $ 1,000

h. Future disfigurement $ 2,000

i. Loss of income in the past $ 36,000

j. Loss of earning capacity in the future $ 180,000

k. Deprivation of constitutional right not to be

subjected to excessive force $ 50,000

1. Deprivation of constitutional right for loss

of liberty . . . $ 50,000

m. Damage to reputation $ 500

n. Past medical expenses $ 65,802

o. Future medical expenses $ 90,000

Proceed to Interrogatory No. 11.

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Appendix D

Interrogatory No. 11

Answer this question if you have answered (1) “We do” to

Interrogatory No. 1 and “We do not” to Interrogatory No. 2 or (2)

“We do” to Interrogatory No. 3 and “We do not” to Interrogatory

No. 4.

What is a reasonable fee for the necessary services of

plaintiff's attorneys in this case, stated in dollars and cents?

Answer with an amount for each of the following:

a. For preparation and trial. $ 65,000

b. For an appeal to the Court of Appeals. $ 12,500

c. For making and responding to an application for writ of

certiorari to the United States Supreme Court. $ 5,000

d. If application for writ of certiorari is granted by the

Supreme Court of the United States. $ 5,000

Proceed to Interrogatory No. 12.

Interrogatory No. 12

What sum of money, if any, do you find in your discretion

should be assessed against the defendant Stacy Burns as

exemplary or punitive damages for the constitutional violations

suffered by the plaintiff?

Only award punitive or exemplary damages for

constitutional violation for false arrest and/or excessive force.

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Answer in dollars and cents, if any.

$ 20,000

Date: 4-19-93 s/ Debbie Reeder

Foreperson

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.