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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1154

## Text

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FilLtLeE D
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

i
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
P
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 Cee, ; F.3d )

(November 29, 1995)

2a

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

3a
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.

4a
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.

Sa

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.

6a

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

7a
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.

9a

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.

V.

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
v.

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
v.

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
v
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.

39a
Appendix D

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.

40a

Appendix D
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

4la
Appendix D

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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Appendix D

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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Appendix D
Answer in dollars and cents, if any.

$ 20,000

Date: 4-19-93 s/ Debbie Reeder
Foreperson

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0686%3A02. Public record. Not legal advice.