Petitioners Brief — Board of the County Commissioners v. Brown

No. Gi Supreme Court, =

In The

Supreme Court of the An =a

>

October Term, 1995

THE BOARD OF THE COUNTY COMMISSIONERS OF

BRYAN COUNTY, OKLAHOMA,

Petitioner,

vs.

JILL BROWN, et ai.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

BRIEF FOR PETITIONER

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

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

ervices, inc.

aN )\

i

QUESTIONS PRESENTED

1. Does the United States Constitution impose liability on

a County fora 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 who 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 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

TABLE OF CONTENTS

Questions Presented ...........ccceececcecees 75

te ven ne due besée ae

ee week ben ces ef

Opinions and Judgment Below .............+6+....

a

Constitutional and Statutory Provisions Involved .

TG a PPPTTTTTTET Ey ce

A. FactsoftheCase. ......cccccccccscees Pita

1. Stacy Burns’ Background. ......... a a

2. BryanCounty’s Hiring and Training of Stacy

rn cas capes To

Todd Brown's Evasion of the Police

Checkpoint: Deputy Sheriff Morrison and

Reserve Deputy Burns’ Pursuit of the Vehicle.

B. Course and Disposition of Proceedings Below. .

Summary ofthe Argument ...............--5. Poe

I. The Fifth Circuit’s Opinion Contravenes Monell.

Page

Argument

Contents

Principles of Federalism Limit Municipal

Liability For Singular Hiring Decision Which

Comports With Constitutionall y- Valid State Law.

There Is No Municipal Liability For A County's

Hiring Decision, Which Comports With Valid

State Law, Without Evidence Of Similar Incidents

Or An Affirmative Link Between The Hiring And

The Constitutional Deprivation. .............

Respondent Has Conceded Absence of

“Custom” of Inadequate Hiring. .........

There Is No Evidence that Bryan County

Adopted a “Policy” of Inadequate Screening.

|

Respondent Failed to Prove Causation for

Inadequate Screening. .................

Respondent's Inadequate Hiring Claim Fails

Under City of Canton v. Harris. ..........

The Fifth Circuit’s Superseded Opinion

Correctly Analyzed Respondent's Failure-to-

SE, Shdee sodccsscieveeccocece

Page

14

15

15

16

17

21

22

24

iv

Contents

Il. Monell’s Rejection Of Respondeat Superior

Liability Embodies This Court’s Concern That

Principles Of Federalism Ensure A Proper Balance

Between Holding A Municipality Accountable For

Violating Constitutional Rights, While Preserving

States’ Authority To Administer Their Own Laws

Unencumbered By Excessive Federal-Court

EE, -s., Ccvedédccseucdedddendecauss

CORGINEED 6 cckc cocdesccctoedévchddees dodtéoddés

TABLE OF CITATIONS

Cases Cited:

Adickes v. S.H. Kress & Co., 398 U.S. 144(1970) .....

Aldinger v. Howard, 427 U.S.1(1976) .............-.

Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992) .......

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

cert. denied, 506 U.S.824(1992) .........020005-

Bennett v. Slidell, 728 F.2d 762 (Sth Cir. 1984) (en banc),

cert. denied, 472 U.S. 1016(1985) ...............

Brown v. Bryan County, OK, 53 F.3d 1410 (Sth Cir. 1995)

Page

26

32

16

28

20

22

pccccccccecoubesosceteccesooossesesesnseese 9, 10,25

v

Contents

Page

Brown v. Bryan County, OK, 67 F.3d 1174 (Sth Cir. 1995)

Juabtodessencbboebetsbodeadaneetés 10, 12, 13, 25, 26, 30

City of Canton v. Harris, 489 U.S.378(1989) ....5,22,23,24

City of Newport v. Fact Concerts, Inc., 453 U.S. 247

ED cidodd coccpecedcccenccécccedsenconcses 18

City of St. Louis v. Praprotnik, 485 U.S. 112(1988) .... 20

D.T. by M.T. v. Indep. School Dist. No. 16, 894 F.2d 1176

(10th Cir.), cert. denied, 498 U.S.879(1990) ...... 23

Graham v. Sauk Prairie Police Comm'n, 915 F.2d 1085

SE ccradenddcddacdudeddsccsecscoccese 22,23

Gregory v. Ashcroft, 501 U.S.452(1991) ............ 30

Haworth v. Central Nat. Bank, 769 P.2d 740 (1989) .... 20

Hoss v. State, 738 P.2d 958 (Okla. Ct. App. 1987) ..... 21

Jeft v. Dallas Independent School District, 491 U.S.701

GUEEED cevecoccccsepecesissceeedadatétaccties 20, 28

J.H. By D.H. v. West Valley City, 840 P.2d 115 (Utah 1992) 2

Mitchum v. Foster, 407 U.S.225 (1972) .........645. 26

vi

Contents

Page

Monell v. Dept. of Social Services of New York, 436 U.S.

GRDRIGTED occ cctdcvcccecscocdés 12, 14, 16, 17, 26,27, 28

Monroe v. Pape, 365 U.S.167(1961) .......-. eee 14,28

Oklahoma City v. Tuttle, 471 U.S. 808 (1985) ....... 17,21,23

Owen v. City of Independence, 445 U.S.622(1980) ... 18

Pembaur v. City of Cincinnati, 475 U.S. 469(1986) .17,18,19

Rizzo v. Goode, 423 U.S. 362 (1976) ..........645: 15, 29,31

Taylor v. Beckham, 178 U.S.548 (1900) ............. 30

United States v. Lopez, 514U.S.__, 115S.Ct. 1626 ...29,30,31

Statutes Cited:

WBUBL. § IBSAA) ... ce cvcccccccccsccccscccccsecs 1

42U.S.C.§ 1983 ...... 1,8, 9, 12, 14, 15, 16, 18, 20, 21, 26, 31

Okla. Stat. Tit. 70 § 3311 2.0.6... cc cece cece eee eee 2

Okla. Stat. Ann. Tit. 70,§ 3311(D)(2) ............... 14

Okla. Stat. Ann. Tit. 70,§ 3311(d)(2)(a) ..........4.- 16, 20

Okla. Stat. Ann. Tit. 70, § 3311(d)(2)(b) .......--. 6. 20, 22

vii

Contents

Page

Okla. Stat. Ann. Tit. 70, § 3311(d)(2)(b)(c) .......... 20

United States Constitution Cited:

EE Ba de dena, oda tacéceddens 1,8

i thts ded disccbuchsvacebessecheos 8

I dk inn ca Utkin bandas chkiesen 8

FourteenthAmendment .......................... 8,26

Other Authorities Cited:

Act of April 20, 1871, ch. 22,17 Stat.13 ............. 26

Cong. Globe, 42d Cong., Ist Sess.,804(1871) ........ 27,28

Eric Foner, Reconstruction: America’s Unfinished

Revolution, 1863-1877, 456 (New York, Harper & Row

SUED Sebabvewvudnucibesstetaciveduess¥ecetess 27

The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961) ™

The Federalist No. 46, p.298(C. Rossitered. 1961) ... 28, 30,31

1

OPINIONS AND JUDGMENT BELOW

The opinion of the court of appeals (App. 3a) is reported at

67 F.3d 1174. A superseded opinion of the court of appeals is

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

(App. 30a) is unreported.

STATEMENT OF JURISDICTION

The judgment of the court of appeals was entered on October

23, 1995. Petitioner's Petition for Rehearing of Substituted

Opinion and Petitioner's Suggestion for En Banc Consideration

were denied by written order on November 29, 1995. (App. 1a).

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

2

of Columbia, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

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

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 norecord of aconviction 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... .

3

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

A. Facts of the Case

1. Stacy Burns’ Background.

Stacy Burns graduated from high school in Durant,

Oklahoma in May, 1988, approximately one month after his 1 8th

birthday. (J.A. 85a).' Forthe next several months, Burns worked

at Collier Brothers Furniture and Home Furniture Company and

attended a college course at Southeastern State University. (J.A.

86a, 87a). By the beginning of 1989, Burns had enrolled full-

time at the Norman, Oklahoma campus of the University of

Oklahoma, in Clayton County. (J.A. 87a).

In September of 1989, while Burns was driving across the

university campus, he came upon a fraternity pledge class. (J.A.

89a-90a). One of the members of the pledge class hit Burns’ car.

Burns stopped his car, got out, and confronted the students,

several of whom began pushing Burns. He responded in kind.

(J.A. 90a). There are no other details in the record regarding this

fraternity fracas. The record does suggest, however, that police

officers were called to the scene. (J.A. 43a, 8la, 100a). The

record does not reveal whether members of the pledge class were

charged with any criminal offense.

1. Appendix to the Petition for Writ of Certiorari will be designated as

(App. ___). “J.A.” refers to the Joint Appendix. References to the trial transcript

will be designated as (Tr. __).

4

As a result of this encounter, Burns pleaded guilty to a

number of misdemeanors, including assault and battery, public

drunkenness, and possession of a false identification. (J.A.41a-

43a, 90a, 121a). Although he also pleaded guilty to several traffic

offenses, it is unclear whether they were related to the campus

incident or were the result of previous infractions. (J.A. 80a-83a,

88a-90a).

2. Bryan County's Hiring and Training of Stacy Burns.

In May, 1991, Burns formally applied for a Reserve Deputy

position with Bryan County, Oklahoma. (J.A.45a-46a). Burns’

background did not disqualify him from law-enforcement

employment,’ therefore, the decision to hire him was left to the

discretion of B.J. Moore, Bryan County’s Sheriff. Moore had

passing familiarity with Burns, who is the son of Moore's

nephew. (J.A. 110a). Moore knew, for example, that Burns had

received several traffic tickets and that Burns had been arrested

for being in actual physical control of a motor vehicle while

intoxicated. (J.A. 114a). Although he had obtained a copy of

Burns’ driving record and a report from the National Crime

Information Center (“NCIC”), Moore did not know that Burns

had pleaded guilty to assault and battery or public drunkenness.

(J.A. 115a).

In accordance with state law, Burns enrolled in the Council

on Law Enforcement Education and Training (“CLEET”)

program and began receiving instruction there on May 6, 1991.

(J.A. 74a). In addition to this training, Burns rode with certified

Peace Officer Earl Howell and Special Deputy Joe Calclazier as

2. Indeed, Otto Schweizer, Brown's expert witness on hiring standards,

agreed that Bryan County complied with Oklahoma State statutes governing

the hiring of Stacy Burns. (J.A. 47a-48a, 50a).

5

they carried out police business. (Tr. 579).’ Calclazier and

Howell gave Burns general instructions on law enforcement and

particular instruction on how to detect drunk drivers, on proper

procedures to conduct an investigatory stop, and on methods of

placing a suspect under the officer's custody and control. (Tr.

580). In addition, Burns learned radio dispatch signals employed

by the Bryan County dispatcher and studied law enforcement

techniques provided by the Law Enforcement Training Network

(“LETN”), a closed-circuit television program used as an

instructional tool for law enforcement officers. (Tr. 579).

Sheriff Moore prohibited Burns from driving a vehicle or

from carrying a revolver. (J.A. 95a, 117a-118a). In addition,

Burns was not authorized to make forcible arrests unless he was

accompanied by a supervising deputy. (J.A. 117a).

3. Todd Brown's Evasion of the Police Checkpoint: Deputy

Sheriff Morrison and Reserve Deputy Burns’ Pursuit of the

Vehicle.

In the early morning hours of May 12, 1991, Todd Brown

and his wife, Jill Brown, were traveling in her 1979 Chevrolet

pickup truck from Grayson County, Texas to their home in Bryan

County, Oklahoma. (Tr. 131). At 1:30 a.m., they crossed the

Denison dam and entered Oklahoma, just north of the Texas-

Oklahoma border. (Tr. 589). When Todd Brown saw he was

approaching a police checkpoint near the high-crime area of

Cartwright, Oklahoma, he abruptly reversed direction and

headed south across the Denison dam back into Texas. (J.A.

11la). (Tr. 433, 590, 692). Although Todd Brown stated that he

avoided the checkpoint because he had been “harassed” by

police in the past, the record suggests he may have been worried

3. Schweizer agreed that the State of Oklahoma permits sheriff

departments to allow reserve deputy sheriffs to accompany certified peace

officers as they carry out law-enforcement duties. (J.A. 55a-56a).

6

that the police would discover the loaded rifle in the cab of the

truck or the revolver concealed in a pocket of Jill Brown’s front

seat. (Tr. 48-49, 101, 134, 449).

Deputy Sheriffs Robert Morrison and Joe Calclazier and

Reserve Deputy Stacy Burns were manning the police

checkpoint when they observed Brown’s vehicle make a U-turn

and travel in the opposite direction. (Tr. 433, 590, 692).

According to the officers, the Browns’ truck fishtailed, its tires

squealing, and left the checkpoint at a high rate of speed toward

the Denison dam. (Tr. 433, 589-90, 692, 697). Todd Brown's

testimony on the subject was purely subjective: he “didn’t

believe” his tires squealed; they “weren't intended to.” (Tr. 135).

He “didn’t think” his pickup fishtailed, although he

acknowledged that his front tires “kind of slide around some.”

(Tr. 136). With respect to the speed of his turn, he surmised that

it “would be normal I would suppose.” Did he leave at a high rate

of speed? “I wouldn’t have thought so. Pretty much just normal.”

(Tr. 135-36).

The contrary evidence — and the only evidence that

explains the officers’ pursuit and the participation of the Texas

Highway Patrol — was direct, descriptive and definite. (Tr. 433,

589-90, 692, 697). There was direct evidence that Officer

Morrison could not have caught the Browns without achieving

speeds in excess of 100 miles per hour. (Tr. 435). Uncontradicted

evidence established that Morrison and Burns informed the

Bryan County dispatcher of their pursuit. (Tr. 442, 593). The

record also establishes that Todd Brown proceeded nearly three-

quarters of a mile after he first observed the pursuing patrol car’s

emergency lights. (Tr. 45, 141-42). The pursuit finally ended in

Grayson County, Texas, approximately 4 miles south of the

police checkpoint. (Tr. 45, 436-37, 610).

After Officer Morrison finally forced the Brown vehicle to

7

stop, Morrison and Burns placed their lives on the line. They

emerged from their vehicle and ordered the occupants to get out

of the truck. (Tr. 49, 441). Although Brown concedes that Officer

Morrison may have ordered her to get out of the vehicle, she

excuses any disobedience by claiming that, if Officer Morrison

made such a command, she “didn’t hear it.” (Tr. 106).* Burns

came around to the passenger door and ordered Brown to get out.

(Tr. 625). At trial (if not on appeal) Brown conceded that she

leaned forward, hands outstretched, when instructed by Burns to

exit the truck. (Tr. 54, 595, 597, 627, 714).

Brown’s forward lean, which occurred after the deputies

had chased the truck four miles down a lonely road in the dead of

night and after Jill Brown had twice refused to comply with

direct orders, caused Reserve Deputy Burns to react with what all

experts described as the “lowest level of force” an officer can

employ short of purely oral persuasion. (Tr. 391-921, 505-06,

509-10). Burns seized Brown's arm at the wrist and elbow,

extracted her from the vehicle, and placed her on the ground. (Tr.

595-97, 627). After a scuffle, Officer Morrison was finally able

to place handcuffs on Todd Brown. (Tr. 442-43). The officers

removed the loaded rifle and the concealed revolver from the

truck after they had secured its occupants. (Tr. 48-49, 101, 449).

Jill Brown testified that she attempted to obey Burns’

commands. She testified that, although she leaned forward, her

hands outstretched, she was not “reaching” for anything at the

time she was extracted from the vehicle. (Tr. 52,54). As aresult

of the incident, Brown claims she suffered serious and disabling

injuries to her knees. (Tr. 52-54, 261, 267-68).

4. Todd Brown heard one of the officers say “Get out and put your hands

on the hood.” (Tr. 185). Officer Morrison testified that he ordered the

occupants to get out of the truck. (Tr. 442-43). Stacy Burns testified that he

ordered Jill Brown to get out of the truck. (Tr. 625).

B. Course and Disposition of Proceedings Below

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

alleging that Bryan County, Oklahoma, Stacy Burns, Robert

Morrison, and B.J. Moore were guilty of violating her

constitutional rights. Brown alleged that Stacy Burns’ actions in

forcibly removing her from the pickup truck and handcuffing her

during the investigatory stop amounted to excessive force that

deprived her of rights under the Fourth, Fifth, Eighth and

Fourteenth Amendments to the United States Constitution.

Plaintiff's Third Amended Complaint. (R. 648).

Brown alleged that Bryan County violated the Constitution

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

Burns. The district court granted summary judgment in favor of

Moore and Morrison, but denied Burns’ and the County's motion

for summary judgment. (J.A. 19a-29a). The case was tried to a

jury. Bryan County moved for judgment as a matter of law at the

close of Brown’s case and renewed its motion at the close of all

of the evidence. (J.A. 58a) (App. 30a). Both motions were

denied. (J.A. 70a) (App. 35a). In addition to numerous other

grounds, Bryan County objected to the court's charge on the

basis that the evidence conclusively established compliance

with applicable state law with regard to the hiring of Stacy Burns,

that there can be no county liability under section 1983 for one

isolated hiring decision, and that the jury interrogatories, which

assumed Bryan County had adopted a “policy” of hiring Burns,

was erroneous. (J.A. 128a-132a). Those objections were denied.

(J.A. 132a).

The jury 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. (App. 38a-

40a).

9

The jury also answered interrogatories concerning Bryan

County. (App. 40a-41a). With respect to liability under section

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

$0 inadequate as to amount to deliberate

indifference to the constitutional needs

of the plaintiff.

(Emphasis added).

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. (App. 41a-44a). 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. (App. 34a). 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. (App. 36a-37a). The district court did not award

Brown any recovery against defendants Morrison and Moore.

Burns and the County appealed the judgment. (R. 981).

There are two reported Fifth Circuit opinions. In the first

opinion, which was superseded by the second, the court found

“no evidence that Sheriff Moore did anything less than that

which is required by [state] law” and concluded that “we do not

find the training practices inadequate.” Brown v. Bryan County,

10

OK, 53 F.3d 1410, 1425 (Sth Cir. 1995). The court observed that

Brown's failure to adduce evidence of other similar incidents or

widespread misbehavior in the force precluded recovery under

the inadequate training claim. /d. Nevertheless, the court found

sufficient evidence to support what it variously termed Brown's

“negligent-hiring,” “inadequate screening” or “wrongful

hiring” claim. According to the court, a section 1983 plaintiff

need not prove similar incidents in order to recover against a

county for its decision to hire an individual whose character is

“deficient.” Jd. at 1421-1425.

On rehearing, the Fifth Circuit expunged its analysis of the

“inadequate training” claim and affirmed the judgment solely on

the basis that the county's “inadequate screening” of Reserve

Deputy Burns was deliberately indifferent to the public's

welfare and the direct cause of Brown's injuries. Brown v. Bryan

County, OK, 67 F.3d 1174, 1185 (Sth Cir. 1995). In its opinion,

the Fifth Circuit acknowledged: “[i}t 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. . .” /d. at 1185 n. 22. The court also

agreed that the law of the State of Oklahoma did not disqualify

Stacy Burns from serving as a reserve deputy. /d. at 1184 n. 20.

Nevertheless, the court wrote that Burns’ background evidenced

a “deficient character,” a “propensity for violence,” and a

“disregard for the law,” all of which precluded his employment.

Id. The Fifth Circuit concluded 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.

Judge Emilio Garza dissented from the majority's opinion

and judgment with respect to Bryan County. In Judge 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). Judge 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 v. Ysleta Indep. Sch. Dist.,996 F.2d

745 (Sth Cir. 1993)) 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. ...

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 in fact constitutes “municipal

12

policy,” such that we can hold the county

liable. ...

Judge Emilio Garza would have reversed the judgment as to

Bryan County. /d. at 1186-87.

SUMMARY OF THE ARGUMENT

I. The Fifth Circuit’s Opinion Contravenes Monell.

Of the numerous opinions issued by this Court since the

landmark decision of Monell v. Dept. of Social Services of the

City of New York, 436 U.S. 658 (1978), not one has questioned

the fundamental tenet, borne of both statutory construction and

adherence to principles of federalism, that section 1983 does not

subject municipalities to respondeat superior liability for torts

committed by their employees. If there is to be municipal

liability under that section, it must occur one of two ways: (1)

when the municipality is aware of, yet remains consciously

indifferent to, a pattern of constitutional violations arising from

the municipality's customary practices; or (2) when the

municipality itself adopts a policy which either:

a. directly causes the deprivation of a

citizen’s constitutional rights by

ordering subordinates to violate the

constitution, see Pembaur, 475 U.S. at

484; or

b. inevitably causes the deprivation of

constitutional rights, because it is clear

to a moral certainty that execution of the

policy will have that result. Canton, 489

U.S. at 390 n. 10.

Neither circumstance was raised by the evidence in this case.

13

First, Respondent has conceded the absence of any pattern

of constitutional violations. Indeed, the record is clear that Jill

Brown's claim is the only claim made against the Bryan County

Sheriff's Department alleging any kind of police misconduct.

The record is plain that “Sheriff Moore had conducted adequate

background checks on other deputies and assured himself that

they were certified before putting them on the street. . .” Brown

v. Bryan County, OK, 67 F.3d at 1185.

Second, it is obvious that Bryan County did not order Stacy

Burns to violate Jill Brown’s constitutional rights. Therefore,

Brown's claim of municipal liability rests on the premise that

Bryan County adopted a policy which officially sanctioned

hiring a person it knew, to a moral certainty, would deprive

citizens of rights guaranteed by the United States Constitution.

That premise is indefensible.

No one has ever questioned that Bryan County's hiring

policy — whether with respect to Stacy Burns or any other peace

officer or reserve deputy — conformed with the State of

Oklahoma’s minimum standards for employment. The state's

statute prohibits hiring individuals with felony convictions, but

there is no prohibition with regard to misdemeanors. (J.A. 47a-

48a, 50a, 72a). In addition, there was no evidence whatsoever

that hiring individuals with misdemeanor records resulted in the

deprivation of any citizens’ constitutional rights. It is not per se

unconstitutional to hire such persons, because there is neither

psychiatric nor anecdotal evidence that hiring an individual with

one misdemeanor conviction for assault and battery would

inevitably result in that individual's trampling on constitutional

rights while employed as a reserve deputy.

In the absence of notice that compliance with the state’s

minimum hiring standards inevitably results in its employees’

violation of constitutional rights, there is no showing of a

14

constitutionally-prohibited “policy” and thus no basis for

recovery under section 1983. The lower court’s relaxation of

Respondent's burden, on the ground that such a hiring choice

“cannot be tolerated,” is tantamount to driving a stake into the

heart of Monell by applying the doctrine of respondeat superior

in the context of section 1983 claims against municipalities.

The lower court’s opinion should therefore be reversed

because itclearly rests on respondeat superior liability, in direct

contravention of Monell.

II. Principles of Federalism Limit Municipal Liability for

Singular Hiring Decision Which Comports With

Constitutionally-Valid State Law.

“The issue in the present case concerns directly a basic

problem of American federalism: the relation of the Nation to the

States in the critically important sphere of municipal law

administration. In this aspect, it has significance approximating

constitutional dimension.” Monroe v. Pape, 365 U.S. 167, 222

(1961) (Frankfurter, J., dissenting in part). Noless than Monroe,

this case turns on a distribution of power, pitting a state's

authority to determine the eligibility of candidates for ublic

employment, against the federal government’s power to veto

that determination, even when the determination itself does not

offend any constitutional provision.

There is no State law precluding Bryan County from

employing Stacy Burns; indeed, the State of Oklahoma vests in

its counties the discretion to hire individuals who have had minor

skirmishes with the law. 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,

15

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 (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 personnel choices that conform to

State requirements and which, in and of themselves, do not

violate any constitutional provision or federal statute.

In this case, the Fifth Circuit crafted a minimum hiring

standard — apparent nowhere in the United States Constitution

— which a County cannot disturb without subjecting itself to

liability under section 1983. 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, “implicate(s]

serious questions of federalism.” Canton v. Harris, 489 U.S.

378, 392 (1989).

ARGUMENT

I.

THERE IS NO MUNICIPAL LIABILITY FOR A

COUNTY’S HIRING DECISION, WHICH COMPORTS

WITH VALID STATE LAW, WITHOUT EVIDENCE OF

SIMILAR INCIDENTS OR AN AFFIRMATIVE LINK

BETWEEN THE HIRING AND THE CONSTITUTIONAL

DEPRIVATION.

It is well-settled that a municipality’ may not be held liable

under section 1983 solely because it employs an individual later

5. Petitioner employs the term “municipality” as synonymous with the

term “county.”

16

found to have deprived a citizen of rights secured by the United

States Constitution. Monell v. Dept. of Social Services of New

York, 436 U.S. 658, 691 (1978). Only when a municipality's

execution of a policy or custom inflicts a constitutional injury

may the government as an entity be held responsible under

section 1983. /d.

Respondent has conceded (as she must) the absence of any

evidence of an offending “custom.” Respondent's Brief in

Opposition at 20. As for “policy,” the record establishes

conclusively that Bryan County’s hiring conformed with the

State of Oklahoma's overriding policy, defined by statute,

regarding the employment of reserve deputies and peace

officers. Okla. Stat. Ann. Tit. 70, § 3311(d)(2)(a) (West 1994).

(J.A. 47a-48a, 50a, 112a). The state’s policy, which no one has

suggested offends the Constitution, has not been shown to give

rise to a systematic deprivation of rights. Thus, the Fifth Circuit's

holding imposes liability on Bryan County solely because it

hired Stacy Burns.

\

1. Respondent Has Conceded Absence of “Custom” of

Inadequate Hiring.

A municipal “custom” presupposes a “persistent and

widespread practice” that has become “so permanent and well-

settled as to constitute a “custom or usage with the force of law.”

Monell, 436 U.S. at 690, quoting Adickes v. S.H. Kress & Co., 398

U.S. 144, 167 (1970). Amunicipality thus becomes accountable

for acquiescing in a “custom” only when it knowingly tolerates

a pattern or practice of unconstitutional conduct. Evidence that

one employee on one occasion violated one individual’s

constitutional rights does not constitute custom.

In the present case, the only “pattern” is of compliance with

the law governing employment of law enforcement personnel.

With the exception of the present case, the County had not

received complaints alleging that an officer or reserve deputy

17

was abusive to, or utilized excessive force on, any citizen. (J.A.

112a). In fact, there had never been any complaint against the

Bryan County Sheriff's department during Sheriff Moore's

tenure. /d. With the sole exception of Respondent’s complaints,

Stacy Burns had never been accused of using excessive force.

(Tr. 581). Under these circumstances, it is not surprising that

Respondent would concede she has no evidence of an offensive

custom. Respondent's Brief in Opposition at 20.

2. There Is No Evidence that Bryan County Adopted a

“Policy” of Inadequate Screening.

A municipal “policy” is a “statement, ordinance, regulation,

or decision officially adopted and promulgated by [the

municipality's] officers.” Monell, 436 U.S. at 690. This Court

has observed that a deliberate single act by a nonpolicymaker

does not constitute a policy sufficient to create municipal

liability. Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985).

Moreover, one may not infer a policy of inadequate police

training based on evidence of a “single incident” of police

misconduct. /d. As Justice Brennan noted in his concurring

opinion in Tuttle: “[t)o infer the existence of a city policy from

the isolated misconduct of a single, low-level officer, and then to

hold the city liable on the basis of that policy, would amount to

permitting precisely the theory of strict respondeat superior

liability rejected in Monell.” 471 U.S. 808, 831 (1985). As a

result of these concerns, the definition of “policymaker” is

limited to those persons authorized to create final “municipal

policy.”

This Court initially examined the nature of a final

policymaker in Pembaur v. City of Cincinnati, 475 U.S. 469

(1986). In the context of a _ policymaker’s single

6. In Pembaur, a County Prosecutor directed County Sheriffs to enter a

(Cont'd)

18

unconstitutional act, Justice Brennan, writing for the plurality,

observed that under appropriate conditions, official policy may

be created when an authorized decisionmaker embarks upon a

“course of action tailored to a particular situation and not

intended to control decisions in later situations.” /d. at 481; see

Owen v. City of Independence, 445 U.S. 622 (1980) (city

council’s discharge of employee without pretermination

hearing); City of Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981) (city council’s cancellation of concert license based on

content of performance). The official with this final authority is

one who not only has “discretion in the exercise of particular

functions” but “must also be responsible for establishing final

government policy respecting such activity before the

municipality can be held liable.” Pembaur, supra at 482-83; see

also Bennett v. Slidell, 728 F.2d 762, 769 (Sth Cir. 1984) (en

banc), cert. denied, 472 U.S. 1016 (1985) (policymaking

authority is more than having the final say-so, as a matter of

practice).

Justice Brennan stressed that “[m)unicipal liability attaches

only where the decisionmaker possesses final authority to

establish municipal policy with respect to the action ordered.

The fact that a particular official — even a policymaking official

— has discretion in the exercise of particular functions does not,

without more, give rise to municipal liability based on an

exercise of that discretion.” Pembaur, supra at 481-82

(emphasis added). It is clear from the opinion, however, that a

“policymaker” may have final discretion within his sphere of

operation, yet remain incapable of establishing final

governmental policy. Justice Brennan could have been writing

about this case when he set forth the following hypothetical:

(Cont'd)

medical center without the benefit of a search warrant in order to “get the

witnesses.” Jd. at 473. The Court held that the municipality was liable under

section 1983 based on the “final policymaker's” unconstitutional decision on

that single occasion.

19

...the County Sheriff may have the

discretion to hire and fire employees without

also being the county official responsible for

establishing county employment policy. If

this were the case, the Sheriff's decisions

respecting employment would not give rise

to municipal liability, although similar

decisions with respect to law enforcement

practices, over which the Sheriff is the

official policymaker, would give rise to

municipal liability. Instead, if county

employment policy was set by the Board of

County Commissioners, only that body’s

decisions would provide a basis for county

liability. This would be true even if the Board

left the Sheriff discretion to hire and fire

employees and the Sheriff exercised that

discretion in an unconstitutional manner; the

decision to act unlawfully would not be a

decision of the Board. However, if the Board

delegated its power to establish final

employment policy to the Sheriff, the

Sheriff's decisions would represent county

policy and could give rise to municipal

liability.

Id. at 484 n. 12. In our case, Bryan County stipulated only that:

“At all times relevant hereto, Defendant Moore was the policy

maker for Bryan County regarding the Sheriff's Department.”

(J.A. 30a). Like the fictional sheriff in the first part of Justice

Brennan's hypothetical, Bryan County's stipulation says

nothing about the source of final policymaking authority with

respect to employment practices. Moreover, there is no evidence

that Bryan County’s Board of Commissioners delegated to

Sheriff Moore the power to establish final employment policy.

20

As aresult, there is no basis for section 1983 liability against the

County based on the adoption of a final hiring policy.

More importantly, the record here establishes that Sheriff

Moore's hiring of Burns was in conformity with explicit

employment policy promulgated by the State of Oklahoma. (J.A.

48a, 50a). Oklahoma law provides the minimum hiring standards

for peace officers and reserve deputies.’ Neither Sheriff Moore

nor Bryan County had the authority to override those

requirements. See Auriemma v. Rice, 957 F.2d 397, 400-01 (7th

Cir. 1992) (superintendent's authority to make final decision on

demotion did not create authority to make personnel “policy”

because the superintendent had no power to countermand

specific statute). Since Sheriff Moore’s discretionary hiring act

was in compliance with Oklahoma law, which is itself

constitutional, that statute (and not Sheriff Moore’s individual

hiring decisions) represents the relevant hiring policy. See City

of St. Louis v. Praprotnik, 485 U.S. 112 (1988) (whether official

has policymaking authority is question of state law)*; Haworth

v. Central Nat. Bank, 769 P.2d 740, 743 (1989) (“Oklahoma

statutes contain several provisions reflecting the state’s direct

intervention and control over law enforcement officers”).

7. Okla. Stat. Ann. Tit. 70, § 3311(d)(2)(a) (West 1994) provides that

“[n)o person shall be certified as a police or peace officer in this state unless. . .

such person has no record of aconviction of a felony or crime involving moral

turpitude.” In addition, Oklahoma provides for psychological testing and

educational requirements (high school diploma or G.E.D. equivalency

certificate). Okla. Stat. Ann. Tit. 70, § 3311(d)(2)(b)(c) (West 1994). “Any

person found not to be suitable for employment or certification by the Council

{on Law Enforcement Education and Training) shall not be employed .. .”

Okla. Stat. Ann. Tit. 70, § 3311(d)(2)(b).

8. Although Praprotnik was a plurality decision, the Court adopted its

analysis in Jett v. Dallas Independent School District, 491 U.S.701 (1989) and

expressly held that the question of who holds policymaking authority is one of

state law properly determined by the District Court. /d. at 737.

21

3. Respondent Failed to Prove Causation for Inadequate

Screening.

Consistent with its refusal to impose municipal liability

based on respondeat superior, this Court has recognized that a

section 1983 plaintiff must establish an “affirmative link”

between the alleged “policy” and the claimed constitutional

injury. Tuttle, 471 U.S. at 823. According to Respondent, the

“affirmative link” here is the hiring of an individual with a

“lengthy criminal record,” which, she claims, evidences a

deliberate indifference to the rights of those with whom Burns

would come into contact. It is important, then, to review the

constituent elements of Burns’ record.

The offenses to which Burns pleaded guilty arose from a

college fight. (J.A. 90a). Stacy Burns was 19 years old. The

record reflects that he was confronted by a group from a

fraternity pledge class, that the fight was initiated by one or more

members of that class, and that a shoving match ensued. (J.A.

89a-90a). Apparently, the police were summoned and Burns was

charged, but not convicted, of resisting arrest. (J.A. 43a, 81a,

100a). At the same time he pleaded guilty to misdemeanor

assault and battery arising out of the fight, Burns entered plea

agreements relating to traffic offenses, presentation of false

identification, and for being in “Actual Physical Control”

(“APC”) of a motor vehicle while intoxicated. (J.A. 90a). See

Hoss v. State, 738 P.2d 958 (Okla. Ct. App. 1987).°

There was no psychiatric or psychological testimony

establishing that Burns’ misdemeanor convictions for the

college fight or driving offenses would directly lead to his using

excessive force as a Reserve Deputy. Analysis of psychological

test results is, in fact, utilized by the agency appointed by the

9. Respondent's own expert characterizes misdemeanors as “minor”

infractions. (Tr. 338).

22

State of Oklahoma to evaluate the fitness of Reserve Deputy

candidates. The statute expressly provides that CLEET retains

discretion to veto employment of “[a]ny person found not to be

suitable for employment or certification by the Council . . .”

Okla. Stat. Ann. Tit. 70 § 3311(d)(2)(b) (West 1994). There is no

evidence that Burns’ employment was precluded by CLEET.

Given the minor nature of Burns’ offenses, Respondent has

failed to demonstrate that Burns’ background should have

alerted Bryan County that he would, toa “moral certainty” exert

more force than necessary when effecting an arrest. See City of

Canton v. Harris, 489 U.S. 378, 390 n.10, 396 (1989)(municipal

liability for inadequate training would require either pattern of

similar incidents or proof that adoption of policy would, to a

“moral certainty,” result in violation of constitutional rights).

Nothing in his background compels the conclusion that, despite

training, supervision, psychological evaluations and testing,

Burns would inevitably commit acts of unprovoked or excessive

violence in contravention of the United States Constitution.

4. Respondent’s Inadequate Hiring Claim Fails Under City of

Canton v. Harris.

Those courts which have addressed claims of municipal

liability based on inadequate hiring policies have followed the

inadequate training paradigm of City of Canton v. Harris.

Moreover, they have rejected the imposition of liability under

circumstances where a municipality follows accepted hiring

procedures of State or county law or relies on objectively

reasonable criteria in reaching hiring decisions. See Benavides

v. County of Wilson, 955 F.2d 968, 974-75 (Sth Cir.), cert. denied,

506 U.S. 824 (1992) (reliance on fit-to-work letter without

further investigation of mental disorders of officers not

deliberately indifferent); Graham v. Sauk Prairie Police

Comm'n, 915 F.2d 1085, 1096-97 (7th Cir. 1990) (police chief

reliance on physician’s return to work letter without obtaining

23

National Crime Information Center (NCIC) report or State

criminal report not deliberately indifferent); D.T. by M.T. v.

Indep. School Dist. No. 16,894 F.2d 1176, 1179, 1193-94 (10th

Cir.), cert. denied, 498 U.S. 879 (1990) (no deliberate

indifference when policymaker follows state hiring procedure

and relies on state certification to ensure that teacher lacked

criminal record); J.H. By D.H. v. West Valley City, 840 P.2d 115,

120-21 (Utah 1992) (no deliberate indifference where

municipality followed normal hiring procedures).

In order for municipal liability to attach to a facially

constitutional policy, the policymaker must have actual or

constructive notice that the policy's application will inevitably

and to a moral certainty lead to constitutional violations. City of

Canton, supra at 390 n. 10. This is the touchstone of deliberate

indifference. In addition, the policy must be soclosely related to

the ultimate injury that it can be said that the municipality

actually caused the constitutional violation. /d. at 391. In this

case, the evidence is clear that Bryan County, in hiring Burns,

transgressed no State law, violated no federal statute, offended

no constitutional provision.

In resolving a municipality's liability for inadequate

training, this Court has suggested a pragmatic approach. The

Court, for example, has explained that a claim of inadequate

training will not succeed on a mere showing that an otherwise

sound program has been negligently administered on one

vecasion. City of Canton, 489 U.S. at 391. Itis also insufficient

to show that an enhanced policy would have prevented the

injury -causing conduct, because that is virtually self-evident. /d.

Finally, the Court has observed that there are times that even

adequately trained officers make mistakes; “the fact that they do

says little about the training program or the legal basis for

holding the city liable.” /d.

These same principles should pertain here. See Graham v.

Sauk Prairie Police Comm'n, supra, 915 F.2d at 1100-1103.

Proof that Sheriff Moore deviated from otherwise

24

unimpeachable hiring practices does not remotely suggest

deliberate indifference. As this Court stated in Tuttle:

. .. where the policy relied upon is not itself

unconstitutional, considerably more proof

than the s.ngle incident will be necessary in

every cass toestablish both the requisite fault

on the part of the municipality, and the causal

connection between the “policy” and the

constitutional deprivation.

Id. 471 U.S. at 824; see also City of Canton v. Harris, 489 U.S. at

432-33 (O'Connor, J., concurring). There is no reason to deviate

from that standard in this case. Respondent has not shown that

Bryan County adopted a “policy” of inadequate screening and,

moreover, has failed to prove it was foreordained that a person

with one misdemeanor conviction for assault and battery would

violate a citizen's constitutional rights despite the training,

supervision, psychological evaluation, and threat of termination

that are part and parcel of the hiring decision itself.

5. The Fifth Circuit’s Superseded Opinion Correctly

Analyzed Respondent’s Failure-to-Train Theory.

In her response to Bryan County's Petition for Writ of

Certiorari, Respondent suggested that the District Court's

judgment was supported by the jury's finding on inadequate

training. Respondent's Brief in Opposition at 14-15. Respondent

failed to mention, however, that the Fifth Circuit, in its prior

opinion, concluded that her inadequate training claim failed as

a matter of law. In reaching that result, the Fifth Circuit correctly

reasoned that:

A review of the record reveals that Sheriff

Moore had enrolled Burns in the state-

mandated Council on Law Enforcement

Education and Training (CLEET) program

25

while he worked as a Reserve Deputy. As

there is no evidence that Sheriff Moore did

anything less than that which is required by

law, we do not find the training practices

inadequate. See Benavides v. County of

Wilson, 955 F.2d 968, 973 (Sth Cir.), cert.

denied, __ U.S. __ , 113 S.Ct. 79, 121 L. Ed.

2d 43 (1992). Although Mrs. Brown's expert

urged that additional instructional programs

were necessary to supplement the CLEET

course and on-the-job training, there is no

evidence suggesting that the training

standard required by law was inadequate to

enable the deputies to deal with “usual and

recurring situations” typically faced by

peace officers. See id. In addition, failure-to-

train cases — unlike the negligent-hiring

cases — specifically require more than a

single instance of injury or an isolated case of

one poorly trained employee before

municipal liability can attach. ... As Mrs.

Brown claims that only Burns was

inadequately trained and cites neither to

other similar incidents nor widespread

misbehavior, her claim alleging inadequate

training must fail.

Brown v. Bryan County, OK, 53 F.3d 1410, 1424-25 (Sth Cir.

1995) (“Brown 1”), superseded by, Brown v. Bryan County OK,

67 F.3d 1174 (Sth Cir. 1995)(“Brown IT’). The court's prior

analysis of inadequate training was correct, as demonstrated

above; its error was in failing to apply that same analysis to

Brown's “negligent-hiring” claims. Contrary to Brown's

suggestion at pages | 4-15 of her Brief in Opposition, the court s

purging of that analysis in the second opinion does not establish

26

an independent ground for affirmance. See Brown II, supra at

1178 (declining to address Bryan County's challenge to

inadequate training).

Il.

MONELL’S REJECTION OF RESPONDEAT

SUPERIOR LIABILITY EMBODIES THIS COURT’S

CONCERN THAT PRINCIPLES OF FEDERALISM

ENSURE A PROPER BALANCE BETWEEN HOLDINGA

MUNICIPALITY ACCOUNTABLE FOR VIOLATING

CONSTITUTIONAL RIGHTS, WHILE PRESERVING

STATES’ AUTHORITY TO ADMINISTER THEIR OWN

LAWS UNENCUMBERED BY EXCESSIVE FEDERAL -

COURT INTERFERENCE.

Before anything else can be said about the interrelationship

between section 1983 and principles of federalism, Petitioner

hastens to acknowledge that the Civil Rights Act of 1871,"°

drastically “altered the relationship between the States and the

Nation with respect to the protection of federally created civil

rights.” Mitchum v. Foster, 407 U.S. 225, 242 (1972). Its

draftsmen intended, and largely achieved, a profoundly

enhanced federal power to protect citizens from unconstitutional

action under color of state law. Jd. It did not go so far, however,

as to strip States of authority to promulgate perfectly

constitutional legislation pertaining to the day-to-day

administration of their own affairs. Monell, 436 U.S. at 693-95.

Proponents of the “Sherman Amendment” to the Civil

Rights Act of 1871 wanted to make municipalities directly liable

for mob violence against the enjoyment or exercise of federal

10. What is now section 1983 was enacted as section | of “AnActto Enforce

the Provisions of the Fourteenth Amendment to the Constitution of the United

States and For Other Purposes,” Act of April 20, 1871, ch. 22, 17 Stat. 13.

27

civil rights." Jd. at691-92. Judgments in such actions were to be

enforceable through a “lien. . . upon all moneys in the treasury

of such county, city, or parish, as upon the other property

thereof.” Cong Globe, 42d Cong, Ist Sess, 663, 755 (1871). The

Opposition to that amendment came not only from those hostile

to the interposition of federal courts into previously sacrosanct

State activity, but also from proponents of the original Civil

Rights Act of 1866.

For example, Senator Lyman Trumbull, who was chairman

of the Judiciary Committee and instrumental in passage of the

1866 Civil Rights Act, was one of the most outspoken critics of

the proposal. Eric Foner, Reconstruction: America’s Unfinished

Revolution, 1863-1877, 456 (New York, Harper & Row 1988).

The proposal, he urged, asserted “principles never before

exercised on the part of the United States at any rate.” Cong

Globe, 42d Cong, Ist Sess, 758 (1871). Likewise,

Representative Blair condemned the sweeping nature of the

proposal:

The proposition known as the Sherman

amendment — and to that I shall confine

myself in the remarks which I may address to

the House — is entirely new. It is altogether

without a precedent in this country. Congress

has never asserted or attempted to assert, so

far as I know, any such authority. That

amendment claims the power in the General

Government to go into the States of this

Union and lay such obligations as it may

please upon the municipalities, which are the

creations of the States alone.

11. Athorough canvassing of the legislative history of the 187! Act is

contained in Monell, supra.

28

Id. Mr. Poland, House Manager of the Conference Committee

Report, stated that: “the House had solemnly decided that in their

judgment Congress had no constitutional power to impose any

obligation upon county and town organizations, the mere

instrumentality for the administration of State law.” Cong

Globe, 42d Cong, Ist Sess, 804 (1871).

Of course, the legislative history surrounding enactment of

the Act of 1871 has been studied extensively by this Court in

prior opinions. Monroe v. Pape, 365 U.S. 167 (1961); Aldinger

v. Howard, 427 U.S. 1 (1976); Monell v. Dept. of Social Services

of New York, 436 U.S. 658 (1978); Jett v. Dallas Independent

School District, 491 U.S. 701 (1989). It is offered here to

emphasize three points which are critical to the disposition of

this case.

First, in the extraordinary climate engendered by the

North’s triumph over the South in the aftermath of the Civil War

— ata time of vastly expanded federal prerogative vis a vis state

sovereignty — the Reconstruction-era Congress recognized that

its reach did not exceed the limits imposed by the United States

Constitution as an institutional restraint on Congress’ authority

to impose upon the States extra-constitutional obligations.

Indeed, Congressional recognition of the wisdom of limiting raw

federal power evidenced loyalty to the Founding Fathers’ plans

for the polity.

The Founding Fathers expressed concern that “ambitious

encroachments of the federal government on the authority of

State governments would not excite the opposition of a single

State, or of a few States only. They would be signals of general

alarm.” The Federalist No. 46, p.298 (C. Rossitered. 1961). At

least in part, the Founders’ struggle to preserve a national

government presupposed fidelity to States’ retention of control

over their own internal affairs.

29

Second, in areas (as here) where State laws are not

themselves unconstitutional, the bulwark of federalism

promotes, rather than hinders, accountability of the State

government to its citizens. Recently, Justice Kennedy observed

that if encroachment on the balance between the national and

State power were left unchecked, “the boundaries between the

spheres of federal and state authority would blur and political

responsibility would become illusory.” United States v. Lopez,

514 U.S. __, __, 115 S. Ct. 1624, 1638 (1995) (Kennedy, J.,

concurring).

In our case, there is no constitutional impediment to

Oklahoma's decision to vest its counties with authority to

employ whom it chooses as reserve deputies, within express

limits provided by statute. That policy, in and of itself, is not the

proper subject of federal court intervention. In a very similar

context, this Court has rejected the proposition that federal

courts have authority to order local government agencies to

implement procedures, acceptable to the court, for handling

citizens’ complaints about the conduct of their law enforcement

agencies. Rizzo, supra, 423 U.S. at 380.

If a federal court may legitimately conclude that Stacy

Burns’ misdemeanors “preclude” his employment

notwithstanding State law to the contrary, why should it not be

entitled to forbid the hiring of any applicant with a history of

misdemeanor arrests?” Or, as Respondent suggests, why should

it not have the power also to preclude Bryan County from hiring

applicants who profess ideas the court finds inappropriate?

Respondent's Brief in Opposition at 11.

Such decisions are left to the States precisely because it is

“essential to the independence of the States, and to their peace

and tranquility, that their power to prescribe the qualifications of

their own officers. . . should be exclusive, and free from external

30

interference, except so far as plainly provided by the

Constitution of the United States.” Gregory v. Ashcroft, 501 U.S.

452,460 (1991), quoting Taylor v. Beckham, 178 U.S. 548, 570-

571 (1900).

Third, the expanded scope of federal oversight of State

personnel decisions envisioned by the lower court would be

virtually impossible to administer. Under the lower court’s

reasoning, federal juries and judges would become super-

legislators, empowered to craft minimum qualifications for

State employees that exceed those enacted by State legislatures.

What had been an essentially political decision regarding a

State’s allocation of resources for the selection, training and

evaluation of law-enforcement personnel, would devolve intoad

hoc determinations by courts that certain yet-to-be-identified

classes of applicants are “unfit” for service.

How are States to predict which components of a police

applicant’s prior background would survive a federal court’s

litmus test for service? The Fifth Circuit's opinion provides no

guidance. We are told that a “propensity for violence” and

“disregard for the law” bar law enforcement service, but where

is the limiting principle in the “standard”? Brown II, supra at

1183. Federalism concerns are greatest when a federal court’s

intervention in State affairs can neither be justified as a matter of

constitutional principle nor limited by defined boundaries. See

United States v. Lopez, 514U.S.at__, 115 S.Ct. at 1626, quoting

The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961) (“[t)}he

powers delegated by the proposed Constitutional to the federal

government are few and defined. Those which are to remain in

the State governments are numerous and indefinite.”).

This third point is especially troublesome precisely because

it foreshadows a wholly inefficient federal oversight over State

administration of basic law enforcement. See The Federalist No.

31

46, p.298(C. Rossitered. 1961) (“. . .itis only within a certain

sphere that the federal power can, in the nature of things, be

advantageously administered”). As noted above, this is not the

first time this Court has faced the question. In Rizzo, the district

court’s injunction was held to violate principles of federalism

precisely because it interfered with “the internal disciplinary

affairs of the state agency.” 423 U.S. at 380. In the case sub

judice, the effect of the lower court’s holding is to place a shadow

injunction on the State of Oklahoma’s statutory qualifications

for reserve deputy and peace officer employment, which

countermands Oklahoma’s ability to exercise its own judgment

in anareato which it lay claim “by right of history and expertise.”

United States v. Lopez, supra, 514 U.S. at__, 115S.Ct. at 1641

(Kennedy, J., concurring).

By substituting its own minimum standards for those

enacted by the State of Oklahoma, the Fifth Circuit has placed

itself in the position of “final policymaker” with respect to hiring

decisions. Such a result signals a drastic departure from this

Court’s settled jurisprudence rejecting respondeat superior

liability for local government units and would precipitate federal

court intervention in the day-to-day promulgation and

enforcement of State policy.

This Court has appropriately answered these questions ina

manner that is consistent with principles of federalism. When it

is established that the State’s policies are unconstitutional in and

of themselves, or (if constitutional) would inevitably result in

constitutional deprivations, then the authority of the federal

court, through the remedial mechanism of section 1983, is

appropriately enlisted. Absent those conditions, federal

intervention is an unwarranted intrusion into the prerogative of

agencies to exercise the discretionary authority entrusted to

them by the State.

32

CONCLUSION

The decision of the court of appeals should be reversed.

Respectfully submitted,

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