Amicus Curiae Brief — Board of the County Commissioners v. Brown

ee

ms

| Suovame Court, U.S,

ris EBD

L

i JUN 21 1996

No. 95-1100

SHSRPSERSESTHE CLERK

IN THE ¥

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

THE BOARD OF THE COUNTY COMMISSIONERS

OF BRYAN COUNTY, OKLAHOMA,

Petitioner,

v.

JILL BROWN, et ai.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF PETITIONER

DANIEL J. POPEO

RICHARD A. SAMP

(Counsel of Record)

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave, NW

Washington, DC 20036

(202) 588-0302

Date: June 21, 1996

pee oe, Oe a way ag ne - X

. f . ag

A ee ee Pe ee Pe

a i os

QUESTIONS PRESENTED

1. Does 42 U.S.C. § 1983 create a cause of action

against a municipality based on a single hiring decision,

where the hiring decision is not part of a consistently-

applied hiring policy?

2. Does 42 U.S.C. § 1983 create a cause of action

against a municipality based on a demonstrated willingness

to hire those with misdemeanor conviction records, in the

absence of evidence that such willingness is affirmatively

linked to a deprivation of constitutional rights?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................ V

INTERESTS OF THE AMICI CURIAE .........

STATEMENT OF THECASE .............. 3

SUMMARY OF ARGUMENT .............. 6

EE 7

I. ASINGLE HIRING DECISION CANNOT CON-

STITUTE MUNICIPAL “POLICY” FOR

PURPOSES OF IMPOSING § 1983 LIABILITY

A. A Single Decision by Municipal Officials

Does Not Constitute "Policy" Unless

There Is Some Contemplation that the

Same Decision Will Be Repeated Should

the Municipality Be Faced with a Similar

TERETE Ga es 660 600s 000

b. When the Decision by Municipal Offic-

ials Being Challenged Is Not Itself

Unconstitutional, the Court Should be

Particularly Reluctant to Impose Muni-

cipal Liability in the Absence of Evi-

dence that the Decision Is Part of a

Pee eee eee

iv

Il. RESPONDENT HAS FAILED TO ESTABLISH

AN “AFFIRMATIVE LINK" BETWEEN PETI-

TIONER’S DECISION TO HIRE BURNS AND

HER SUBSEQUENT INJURY ........... 21

A. Allegedly Deficient Hiring Policies Can

Never Serve as a Predicate for Municipal

Liability Under § 1983. ............ 25

Il. PRINCIPLES OF FEDERALISM DICTATE

THAT FEDERAL COURTS NOT INTERFERE

WITH MUNICIPAL LAW ENFORCEMENT

= Pe ee ee 27

CONLIN wn ccc cece weees 30

v

TABLE OF AUTHORITIES

Page

Cases:

Cipollone v. Liggett Group, Inc..,

112 S. Ct. 2608 (1992) ...............2.. 28

City of Canton v. Harris,

489 U.S. 378 (1989) ..... 16, 19-20, 22-24, 26, 29

Monell v. Dept. of Social Services,

436 U.S. 658 (1978) ................ passim

Oklahoma City v. Tuttle,

471 U.S. 808 (1985) ........... 13, 18-22, 24

Pembaur v. City of Cincinnati,

475 U.S. 469 (1986) ........ 8-10, 13-14, 17, 20

Rizzo v. Goode,

GP es ED owe ccceccecees 28, 29

Tennessee v. Garner,

ee Ws ED og og we cect weeecucesceses 26

Statutes and Constitutional Provisions:

ee 4,8, 10

Sth Am., U.S. Comst..................... 4

8th Am., U.S. Comst..................... 4

of RE ee 4,8

Pera os da ot ow cass ewebedi passim

Oklahoma Tort Claims Act.............. 14-15

Okla. Stat. Ann., tit. 70, § 3311 (West 1994) .... 13

vi

Miscellaneous:

P. Kelly, Deliberate Indifference: A Heightened

Standard for Municipal Liability,

19 CoLo. LAw. 861 (1990) ..............

L. Kramer and A. O’Sykes, Municipal Liability

Under §1983: A Legal and Economic Analysis,

6 Sup. CT. Rev. 249 (1987) ..............

K. Lewis, Section 1983: A Matter of Policy,

70 Micu. BAR J. 556 (1991)... ...........

City’s Nemesis: Lawyer Lipsig Makes

a Killing Suing People of New York,

ees. Se. B, BED OU SUED oct ecceceses

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

No. 95-1100

THE BOARD OF THE COUNTY COMMISSIONERS

OF BRYAN COUNTY, OKLAHOMA,

Petitioner,

v.

JILL BROWN, e7 ail.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

\

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF PETITIONER

INTERESTS OF THE AMICI CURIAE

The Washington Legal Foundation (WLF) is a non-

profit public interest law and policy center with supporters

in all 5O states. While WLF engages in litigation and the

administrative process in a variety of areas, WLF devotes

a substantial portion of its resources to promoting civil

justice reform, including tort reform. To that end, WLF

has appeared before this Court as well as other federal and

State courts to argue against overly expansive theories of

2

tort liability, excessive punitive damages, and imposition of

unwarranted attorney fee awards against municipalities and

other defendants. See, e.g., BMW of North America, Inc.

v. Gore, 116 §. Ct. 1589 (1996); City of Burlington vy.

Dague, SOS U.S. 557 (1992).

The Allied Educational Foundation (AEF) is a non-

profit charitable and educational foundation based in

Englewood, New Jersey. Founded in 1964, AEF is dedi-

cated to promoting education in diverse areas of study,

such as law and public policy, and has appeared as amicus

curiae in this Court on a number of occasions.

WLE and AEF believe that despite this Court's admon-

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

(1978), that 42 U.S.C. § 1983 does not impose strict liabil-

ity on municipalities for the wrongful acts of their employ-

ees, the lower courts increasingly are enforcing that statute

as though it does. The result is that in virtually every §

1983 suit involving an individual injured by a municipal

employee, the municipality is named as a defendant, and

taxpayers across the nation are being forced to fund the

often exorbitant awards being given to plaintiffs and their

contingent-fee attorneys. WLF and AEF believe that it is

important for the Court to establish bright-line tests that

will make municipal liability the exception rather than the

rule in cases involving alleged misconduct by municipal

employees.

Amici submit this brief in support of Petitioner with the

written consent of both parties. The written consents are

on file with the Clerk of the Court.

3

STATEMENT OF THE CASE

In the interests of judicial economy, amici hereby

adopt by reference the Statement of the Case set forth in

Petitioner’s brief.

This case involves an attempt to impose liability on a

municipality based on the conduct of one of its employees,

a Reserve Deputy Sheriff found by a jury to have used

excessive force in removing a passenger (Respondent Jill

Brown) from a motor vehicle. At issue is whether Con-

gress -- in adopting § | of the Ku Klux Klan Act of 1871,

42 U.S.C. § 1983 -- intended to create a cause of action

against a municipality under the facts of this case.

Mrs. Brown was a passenger in a truck being driven

by her husband in the early hours of May 12, 1991 when

the truck approached a police checkpoint in Bryan County,

Oklahoma. Not wishing to pass through the checkpoint,

Mr. Brown turned the truck around and drove off in the

opposite direction. Two Bryan County law enforcement

officers, Deputy Sheriff Robert Morrison and Reserve

Deputy Stacy Burns, pursued the truck for several miles

before successfully pulling it over. By that time, the truck

had crossed the border from Oklahoma into Grayson

County, Texas.

Burns and Morrison then exited their squad car and

approached the Browns’ vehicle, with Burns coming to the

passenger side. After twice ordering Mrs. Brown from the

vehicle, Burns pulled her from her seat and dropped her to

the ground. Petition Appendix ("Pet. App.") Sa. Mrs.

Brown's impact with the ground caused severe injury to her

knees. Jd. Burns thereafter handcuffed Mrs. Brown for at

4

least 30 minutes, although she was never charged with any

crime.

Mrs. Brown filed suit under 42 U.S.C. § 1983 in U.S.

District Court for the Eastern District of Texas against

Burns, Morrison, Bryan County Sheriff B.J. Moore, and

the Board of the County Commissioners of Bryan County,

Oklahoma ("Bryan County"). She alleged that Burns's

actions in forcibly removing her from a vehicle and

handcuffing her for an extended period of time violated her

rights under the Fourth, Fifth, Eighth, and Fourteenth

Amendments to the Constitution. She alleged that Bryan

County violated her constitutional rights by hiring Burns

and failing to train him adequately.

Following a trial, the jury found against Burns and

Bryan County but in favor of Defendants Morrison and

Moore. It found that Burns had used excessive force in

pulling Mrs. Brown from her vehicle, had falsely impris-

oned Mrs. Brown, and was not entitled to a good-faith

immunity defense. The jury also found that "the hiring

policy of Bryan County in the case of Stacy Burns" and

"the training policy of Bryan County in the case of Stacy

Burns" were "so inadequate as to amount to deliberate

indifference to the constitutional needs" of Mrs. Brown.

Based on that verdict, the district judge entered judgment

against Burns and Bryan County for $711,302, plus puni-

tive damages and attorney fees.

The U.S. Court of Appeals for the Fifth Circuit

affirmed the district court judgment by a 2-1 vote. The

appeals court recognized that § 1983 permits imposition of

a dainage award against a municipality only where the

plaintiff's constitutional rights have been violated pursuant

to some municipal policy. However, the court said, "it is

5

clear that a single decision" may constitute the requisite

municipal policy and thus "may create municipal liability

if that decision were made by a final policymaker respon-

sible for that activity." Pet. App. 18a. The Court con-

cluded that since Bryan County had given Sheriff Moore

policymaking authority to hire Burns, Moore’s decision to

hire Burns constituted county "policy" for purposes of §

1983 liability. Jd.

The appeals court also upheld, without extensive dis-

cussion, the jury’s determination that Mrs. Brown’s injuries

were caused by Bryan County’s allegedly inadequate hiring

policy. Pet. App. 24a ("the jury could find that hiring an

unqualified applicant and authorizing him to make forcible

arrests actually caused the injuries suffered by Mrs.

Brown.").

The Fifth Circuit did not consider Mrs. Brown's alter-

native cause of action -- that her injuries were caused by

Bryan County’s constitutionally deficient training policy for

its deputy sheriffs.

Judge Emilio M. Garza dissented from that portion of

the panel’s decision imposing liability on Bryan County.

Pet. App. 26a-29a. He argued that a single negligent hir-

ing decision, such as the decision to hire Burns, cannot

constitute an "unconstitutional municipal policy" for pur-

poses of imposing liability under § 1983. Jd. at 26a. He

wrote, "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 policy,’ such that

we can hold the county liable." Jd. at 28a-29a.

6

The Court granted Bryan County’s certiorari petition

on April 22, 1996, to review the Fifth Circuit’s decision

that § 1983 liability could be imposed on Bryan County

based on its decision to hire Burns and authorize him to

make forcible arrests.

SUMMARY OF ARGUMENT

In seeking to impose liability on Bryan County based

on its decision to hire Reserve Deputy Burns, Mrs. Brown

is attempting to expand the definition on municipal "policy"

beyond all reasonable bounds. Such an expansion would

effectively constitute adoption of a respondeat superior

theory of liability, a theory of liability expressly rejected by

Congress when it adopted 42 U.S.C. § 1983.

Amici propose the following alternative rule. A single

decision by a municipal policymaker does not constitute

municipal “policy” actionable under § 1983 unless: (1) the

decision carries out what has been understood to be an

existing, albeit unofficial, standard operating procedure; or

(2) there is some contemplation that the decision has estab-

lished a precedent that the municipality will follow if and

when it again faces the same set of circumstances. When

the decision being challenged is not itself unconstitutional,

the Court should be particularly reluctant to adopt any rule

of liability broader than that outlined above.

Mrs. Brown’s cause of action should fail for the

additional reason that she has failed to establish an

“affirmative link" between Petitioner’s decision to hire

Burns and her subsequent injury. Indeed, amici doubt that

a § 1983 plaintiff could ever establish that a deficient hiring

policy was the "moving force" behind subsequent police

misconduct. For that reason, amici urge the Court to

5

declare that allegedly deficient hiring policies cannot serve

as a predicate for municipal liability under § 1983.

Moreover, principles of federalism dictate that the federal

courts refrain from becoming too deeply involved in

municipal hiring policies.

ARGUMENT

I. A SINGLE HIRING DECISION CANNOT CON-

STITUTE MUNICIPAL "POLICY" FOR PUR-

POSES OF IMPOSING § 1983 LIABILITY

A. A Single Decision by Municipal Officials Does

Not Constitute "Policy" Unless There Is Some

Contemplation that the Same Decision Will Be

Repeated Should the Municipality Be Faced

with a Similar Situation.

When the Court in Monell overruled prior precedent

and held for the first time that municipalities are "persons"

subject to damages liability under 42 U.S.C. § 1983,' it

made clear that it was not opening the floodgates to actions

premised on the mere fact that the municipality employed

an alleged wrongdoer. Rather, municipal liability could

' 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 . . ., 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. . . .

only be imposed for injuries inflicted pursuant to govern-

ment "policy or custom." Monell, 436 U.S. at 694.

In seeking to impose liability on Bryan County based

on its decision to hire Reserve Deputy Burns, Mrs. Brown

is attempting to expand the definition of a municipal

"policy" beyond all reasonable bounds. If a single hiring

decision could constitute actionable municipal "policy,"

then virtually any government action would so qualify, and

the respondeat superior theory of liability warned against

by Monell for § 1983 cases would become a reality.

Mrs. Brown's argument that a single hiring decision

can constitute municipal policy actionable under § 1983 is

based on a misreading of the Court's decision in Pembaur

v. City of Cincinnati, 475 U.S. 469 (1986). Pembaur in-

volved a § 1983 action brought by a doctor against several

municipalities after law enforcement officers (in violation

of his Fourth and Fourteenth Amendment rights) broke

open his office door in order to serve capiases on two

employees of the doctor who had failed to respond to grand

jury subpoenas. The officers acted after: (1) being refused

entrance by the doctor; (2) calling the prosecutor’s office

for advice; and (3) being instructed by the County Prosecu-

tor to break open the door. Pembaur, 475 U.S. at 472-73.

The Court held that the decision to break open the

office door constituted actionable municipal "policy" within

the meaning of § 1983. The Court said:

[I]t is plain that municipal liability may be imposed for

a single decision by municipal policymakers under

appropriate circumstances. . . . [Where action is

directed by those who establish governmental policy,

the municipality is equally responsible whether that

9

action is to be taken only once or to be taken

repeatedly. .. . We hold that municipal liability under

§ 1983 attaches where -- and only where -- a deliberate

choice to follow a course of action is made from

among various alternatives by the official or officials

responsible for establishing final policy with respect to

the subject matter in question.

Id. at 480, 481, 483-84.

Since the decision to break down the doctor's door was

made at the highest level of municipal decisionmaking, and

since that decision appeared to be consistent with municipal

actions in similar situations (the Prosecutor's office

appeared to consider it standard procedure to use forcible

entries, if necessary, to serve capiases), the Court had no

occasion in Pembaur to consider at length the types of

municipal actions that could qualify as § 1983 "policies."

However, two of the concurring opinions (those of Justices

White and O’Connor) included language that significantly

limited the definition of "policy."* Justice White premised

his concurrence on Cincinnati's concession that "forcible

entry of third-party property to effect otherwise valid

arrests was standard operating procedure." Jd. at 485

> Those two concurring opinions must be taken into account in

determining Pembaur’s scope, because Justices White and O'Connor

provided the majority with the necessary fifth and sixth votes. Justice

O'Connor concurred in the judgment but did not join those portions of

the Court’s opinion that discussed when actions by municipal officials

could constitute a municipal "policy" for § 1983 purposes. Pembaur,

475 U.S. at 491 (O'Connor, J., concurring in part and concurring in

the judgment). Justice White, while concurring in the Court's opinion,

made clear that he did so with the understanding that the opinion did

not encompass a broader definition of § 1983 “policy” than is outlined

in his concurring opinion. /d. at 485-87 (White, J., concurring).

10

(White, J., concurring). He pointedly stated, moreover,

that the fact that Cincinnati's standard operating procedure

constituted a § 1983 "policy" "does not mean that every act

of municipal officers with final authority to effect or

authorize arrests and searches represents the policy of the

municipality." Jd. at 486. While concurring in the

judgment, Justice O’Connor explicitly concurred in Justice

White’s rationale and added, "I fear that the standard the

majority articulates may be misread to expose municipal-

ities to liability beyond that envisioned by the Court in

Monell." Id. at 491 (O'Connor, J., concurring in part and

concurring in the judgment).

Pembaur, then, can be understood as endorsing the

proposition that only sometimes does a single decision by

municipal policymakers constitute a municipal "policy"

actionable under § 1983. While a single decision made by

policymakers pursuant to an unofficial "standard operating

procedure" was found sufficient to create an actionable

municipal "policy" in Pembaur, it does not follow (as

argued by Mrs. Brown) that a § 1983 "policy" is created

by every decision made by a municipal official authorized

to make such decisions.

Indeed, such a rule would lead to absurd results. For

example, police officers are routinely authorized by their

employers to conduct searches of private property. While

they generally are warned not to engage in searches pro-

hibited by the Fourth Amendment, the infinite variety of

fact patterns that police officers routinely confront when

attempting to determine whether searches are appropriate,

as well as the complexity of Fourth Amendment case law,

means that officers cannot reasonably be expected to know

in advance whether their actions will later be found to

violate Fourth Amendment rights. Thus, to hold that a

police officer creates municipal "policy" every time (s)he

conducts a search not absolutely forbidden by existing case

law would be, in effect, to impose respondeat superior

liability on a municipality for virtually all actions of its

police officers. See K. Lewis, Section 1983: A Matter of

Policy, 70 MICH. BAR J. 556, 558 (1991)("If the mere

exercise of discretion by an employee could give rise to a

constitutional violation, the result would be indistin-

guishable from respondeat superior liability.").

A far more reasonable rule -- and one more in line

with the understanding of § 1983 expressed in Monell --

would hold that a single decision by a municipal policy-

maker does not constitute a municipal “policy” actionable

under § 1983 unless: (1) the decision carries out what has

been understood to be an existing, albeit unofficial, stan-

dard operating procedure; or (2) there is some contempla-

tion that the decision has established a precedent that the

municipality will follow if and when it again faces the same

set of circumstances.

Under the rule proposed here, Bryan County's decision

to hire Reserve Deputy Sheriff Burns cannot constitute a

municipal "policy" actionable under § 1983. Mrs. Brown

alleges that her injuries were caused by Bryan County's

decision to hire Burns, a hiring decision she describes as

"so inadequate as to amount to deliberate indifference to

the constitutional rights of citizens." Respondent's Oppo-

sition Brief at 6. Yet, nowhere does Mrs. Brown allege

that such deliberate indifference was standard operating

procedure in Bryan County or that Bryan County contem-

plated employing similar indifference in future hiring

12

decisions.’ In the absence of such allegations, Mrs. Brown

cannot establish that Bryan County had adopted a “policy”

of “deliberate indifference to the constitutional rights of

citizens,” actionable under § 1983. See P. Kelly, Delib-

erate Indifference: A Heightened Standard for Municipal

Liability, 19 CoLo. LAW. 861, 862 (1990)("[D]eliberate

indifference claims that are supported by conclusory or

single incident allegations are subject to a motion to

dismiss for failure to state a claim.").

In upholding imposition of § 1983 liability on Bryan

County based on a single hiring decision, the Fifth Circuit

relied on Bryan County's stipulation that Sheriff Moore had

been granted final policymaking authority regarding all

hiring and firing decisions within the Sheriff's Department.

Pet. App. 16a. But simply because he acted within his

delegated authority in hiring Burns does not mean that

Sheriff Moore had authority to establish all county policy

with respect to employment practices within his depart-

ment. Indeed, the record clearly shows that he did not

have such broad authority; for example, he was prohibited

under Oklahoma law from hiring a deputy without first

establishing that: (1) the Oklahoma State Bureau of

Investigation and the FBI have reported that the applicant

"has no record of a conviction of a felony or a crime

involving moral turpitude"; (2) the applicant has undergone

a psychological evaluation and has been found “suitable to

serve as a peace officer"; and (3) the applicant is a high

* Indeed, the “deliberate indifference” issue was presented to the

jury with a sole focus on the decision to hire Burns. The jury was

asked to determine whether "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." Pet. at 5

(emphasis added).

13

school graduate. Okla. Stat. Ann., tit. 70, § 3311 (West

1994). Nor did the appeals court suggest that Sheriff

Moore had been delegated authority to establish a hiring

policy in conflict with the numerous personnel policies

established by the Oklahoma legislature and/or the Board

of the County Commissioners -- such as the prohibition

against hiring on the basis of race. Accordingly, the Court

should be particularly reluctant to approve imposition of §

1983 liability on the basis of a “policy” applicable only to

a single hiring decision made by a municipal employee

whose “policymaking” authority consisted of little more

than the authority to make hiring decisions in accordance

with state and local law.

Indeed, the Court strongly suggested in Pembaur that

a municipal employee does not make “policy” for purposes

of § 1983 merely by virtue of exercising final authority

over individual hiring and firing decisions. Rather, the

Court indicated, the § 1983 “policy” consists in that

instance of establishing an overall employment policy

applicable to all hiring and firing decisions:

The fact that a particular official -- even a policy-

making 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. See, e.g., Oklahoma City v. Tuttle, 471

U.S. [808], 822-824 [(1985)]. The official must also

be responsible for establishing final government policy

respecting such activity before the municipality can be

held liable. . . .

12. Thus, for example, the County Sheriff may have

discretion to hire and fire employees without also

being the county official responsible for establishing

14

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 dis-

cretion in an unconstitutional manner; the decision to

act unlawfully would not be a decision of the Board.

Pembaur, 475 U.S. at 482-83 & n.12 (final emphasis

added). In other words, the Court indicated that hiring

“policy” for purposes of § 1983 consists of rules generally

applicable to all new hires, not to decisions to hire

particular individuals.

Despite ruling against Bryan County, the district judge

appeared to agree that Sheriff Moore should not be viewed

as a policymaker merely by virtue of his hiring/firing

authority. In rejecting Bryan County’s argument that it

should be shielded from liability under the Oklahoma Tort

Claims Act (which exempts Oklahoma municipalities from

state-law claims resulting from “performance of or the fail-

ure to exercise or perform any act or service which is in

the discretion of the state or political subdivision or its

employees"), the district court stated that the county was

ineligible for that defense because Sheriff Moore’s decision

to hire Burns was a “ministerial” act, not a “policy or plan-

15

ning decision." Pet. App. 33a-34a.‘ The same rationale

that dictated rejection of Bryan County's Oklahoma Tort

Claims Act defense counsels against a finding that Sheriff

Moore’s decision to hire Burns should be deemed a

"policy" for purposes of imposing § 1983 liability.

It bears repeating that Mrs. Brown is challenging

Bryan County’s "policy" in hiring Burns, not the Sheriff

Department's overall hiring record. Even the Fifth Circuit

conceded that any inadequacy in Sheriff Moore's back-

ground check of Burns before hiring him was atypical of

I.foore’s normal practice. The appeals court said: "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."

Pet. App. 24a n.22. Pembaur makes clear that such a

challenge to a single hiring decision does not rise to the

level of a challenge to a § 1983 “policy.”

* The district court's comments came in connection with its

September 1993 denial of Petitioner's motion for judgment notwith-

standing the verdict. The district judge explained his rationale as

follows:

Oklahoma has adopted the planning operational approach [to dis-

cretionary functions exception claims], whereby initial policy or

planning decisions are discretionary, and thus exempt, while oper-

ational decisions made in the implementation and performance of

the policy in specific instances are ministerial. The evidence in

this case shows that the initial formulation of the policy to be

followed in the selection of reserve deputy sheriffs and the train-

ing 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.

Id.

16

Amici suggest in passing that one reason for the

apparent confusion within the lower federal courts on this

issue is the confusion of terminology in § 1983 municipal

liability cases. Section 1983 does not itself use the term

“policy.” Rather, it addresses actions under color of any

“statute, ordinance, regulation, custom, or usage" of a

State or municipal government. Monell, on the other hand,

speaks in terms of municipal liability for injuries inflicted

pursuant to government “policy or custom" (Monell, 436

U.S. at 694), suggesting that "policy" is shorthand for a

formalized “statute, ordinance, [or] regulation" while

"custom" is a shorthand for an informal "custom and

usage” which, while never formally endorsed by decision-

makers, has been tacitly accepted as standard operating

procedure. Later decisions of this Court seem to use the

term “policy” to cover all of the terms enumerated in §

1983. See, e.g., City of Canton v. Harris, 489 U.S. 378

(1989). Amici respectfully suggest that there is no prin-

cipled distinction among the various terms used; they all

refer to some sort of government policy, whether or not

that policy is in writing or has ever been formalized. Yet,

the continued use of Monell’s “policy or custom" termino-

logy has led to confusion and has led many to conclude

(erroneously, we believe) that "policy" suits and "custom"

suits are wholly separate causes of action entailing different

elements of proof. See L. Kramer and A. O’Sykes, Muni-

cipal Liability Under § 1983: A Legal and Economic Anal-

ysis, 6 Sup. CT. REV. 249, 254-55 (1987) (Court has estab-

lished vague categories of municipal liability "susceptible

to many plausible definitions").

Respondent's brief well illustrates that confusion. In

opposing Petitioner's argument that a single hiring decision

cannot constitute a § 1983 "policy," Mrs. Brown asserts:

tT ee

17

Petitioner's confusion may be attributable to a failure

to recognize the difference between a Monell "policy"

and a Monell “custom.” . . . [AJlthough a plaintiff

pursuing municipal liability based on a municipal "cus-

tom" must show “persistent and widespread" practices

resulting in deprivations of constitutional rights, this

Court in Pembaur quite clearly ruled that a municipal

“policy” is established by a single decision made by a

municipal policymaker on a matter within his policy-

making authority. 475 U.S. at 480-481. And the §

1983 plaintiff in the present case never argued that

Bryan County had a "custom" of hiring persons whose

criminal records demonstrated them wholly inadequate

to be law enforcement officers. This is a "policy"

case, not a "custom" case.

Respondent's Opposition Brief at 19-20.

Amici do not believe that the Court in Monell and

Pembaur intended to create differing elements of proof for

“policy” and "custom" causes of action. In both instances,

the determinative issue is the role of municipal policy-

makers in actions leading to the plaintiff's injuries. While

the Court has recognized various methods by which plain-

tiffs are permitted to prove that municipal policymakers

played such a role, the underlying cause of action is the

same in each instance. Amici suggest that the Court clear

up the underlying confusion in this area by henceforth us-

ing only the word "policy" to cover all of the government

actions enumerated in § 1983 ("statute, ordinance, regula-

tion, custom, or usage") and making clear that there is only

a single municipal liability cause of action under § 1983.

In sum, a single decision by a municipal official does

not constitute "policy" for purposes of § 1983 liability

unless that decision carries out what has been understood

to be an existing, albeit unofficial, standard operating

procedure, or unless there is some contemplation that the

decision has established a precedent that the municipality

will follow if and when it again faces the same set of

circumstances. In the absence of evidence that the

circumstances that led to Burns’s hiring had occurred

previously or were likely to be duplicated, the jury verdict

for Mrs. Brown cannot stand.

B. When the Decision by Municipal Officials Being

Challenged Is Not Itself Unconstitutional, the

Court Should be Particularly Reluctant to Im-

pose Municipal Liability in the Absence of

Evidence that the Decision Is Part of a

Recurring Policy.

Amici submit that the definition of “policy” proposed

in the preceding section should be adopted in all cases 7

even when the decision under challenge is itself unconsti-

tutional. Thus, if it had been Sheriff Moore himself who

had pulled Mrs. Brown from her vehicle and if she had

premised her municipal liability claim on his actions, those

actions would not constitute Bryan County "policy" unless

Mrs. Brown could make the showings outlined above.

Nonetheless, as Judge Emilio Garza argued in his

dissent below, courts should be particularly cautious in

finding a "policy" actionable under § 1983 when (as here)

the alleged policy is not itself unconstitutional. Pet. App.

26a-29a. As Judge Garza noted, the Court in Tuttle in-

sisted that "considerably more proof than a single incident

will be necessary" in order to establish that the decision of

a municipal official is municipal "policy" actionable under

§ 1983, where the decision relied on "is not itself

19

unconstitutional." Tuttle, 471 U.S. at 824 (plurality

opinion).°

In every case in which a plaintiff whose constitutional

rights have been violated seeks to impose liability on a

municipality under § 1983, the key issue is whether the

violation is fairly attributable to the municipality. Cer-

tainly, such attribution is reasonable where the unconsti-

tutional conduct was taken pursuant to a municipal policy

that expressly mandated such conduct. But where the

municipality has not, through some policy edict, directed

its employees to engage in conduct that violates the

plaintiff's constitutional rights, any effort to hold the

municipality liable for such conduct treads perilously close

to respondeat superior liability -- a standard of liability

rejected by Monell. Monell, 436 U.S. at 691.

Moreover, holding municipalities liable under § 1983

for conduct which policymakers did not authorize is not

easily squared with the commonly understood meaning of

the word "policy." As the Court recognized in Tuttle, "the

word ‘policy’ generally implies a course of action con-

* Indeed, the Court in Tuttle made clear that it was still an open

question "whether a policy that itself is not unconstitutional, such as the

general ‘inadequate training’ alleged here, can ever meet the ‘policy’

requirement of Monell." Id. at 824 n.7. The Court subsequently

reached that question in City of Canton, holding that "the inadequacy

of police training may serve as the basis for § 1983 liability only where

the failure to train amounts to deliberate indifference to the rights of

persons with whom the police come into contact." City of Canton, 489

U.S. at 388. But the Court's opinion said nothing that undercut Tus-

tle’s continued vitality; indeed, the Court reinforced the considerably-

more-proof-than-a-single-incident requirement by stating, "That a

particular officer may be unsatisfactorily trained will not alone suffice

to fasten liability on the city." /d. at 390.

20

sciously chosen from among various alternatives." Tuttle,

471 U.S. at 823 (plurality opinion). It is thus difficult to

accept the notion that an inadequate hiring process (which

suggests more a failure to take action than a consciously

chosen course of action) could constitute a municipal

policy. City of Canton held that a "policy" of deliberately

choosing an inadequate training program could be deemed

to exist in extreme circumstances -- where the training is so

inadequate as to amount to "deliberate indifference to the

rights of persons with whom the police come into contact."

City of Canton, 489 U.S. at 388. Assuming for the sake

of argument that a police hiring policy could be so inade-

quate as to satisfy a similar “deliberate indifference”

standard, only the most grossly deficient hiring policies

could be so described. Thus, unless the “deliberate indif-

ference" exception is going to be allowed to swallow the

general rule that a "policy" entails a consciously chosen

course of action, only hiring practices involving a signif-

icant number of hiring decisions could qualify as "deliber-

ately indifferent" hiring policies.

Pembaur is not to the contrary. Pembaur involved

unconstitutional conduct that had been expressly authorized

at the highest levels of municipal government; under those

circumstances, even a single incident of such conduct could

be said to been brought about as a result of the conscious

choice of municipal policymakers. But it makes no sense

to assert that a sheriff's allegedly deficient judgment in a

single hiring decision constitutes a conscious decision to

expose citizens to constitutional violations, particularly

where (as here) the evidence indicates that most job appli-

cants were thoroughly screened.

In sum, regardless whether a § 1983 "policy" can ever

be created by a single decision whose repetition is not

21

contemplated, there certainly can be no such "policy"

where the alleged policy relied on by the plaintiff is not

itself unconstitutional. Since Bryan County’s decision to

hire Burns cannot be deemed unconstitutional, Mrs. Brown

cannot establish the requisite municipal “policy’ based

solely on Sheriff Moore’s decision to hire Burns.

Il. RESPONDENT HAS FAILED TO ESTABLISH AN

"AFFIRMATIVE LINK" BETWEEN

PETITIONER’S DECISION TO HIRE BURNS

AND HER SUBSEQUENT INJURY

In order to recover damages from Bryan County in this

§ 1983 action, Mrs. Brown must demonstrate not only the

existence of a municipal “policy” but also that the identi-

fied policy caused her injuries. Monell, 436 U.S. at 692

("Congress did not intend § 1983 liability to attach where

such causation was absent."). Mrs. Brown has utterly

failed to establish such causation.

Proving causation in a § 1983 action entails far more

than establishing that the plaintiffs’ injury would not have

occurred but for the identified municipal “policy” (in this

case, the decision to hire Burns). As the Court noted in

Tuttle, imposing a mere but for causation requirement

would be no requirement at all, because:

Obviously, if one retreats far enough from a constitu-

tional violation some municipal "policy" can be

identified behind almost any such harm inflicted by a

municipal official; for example, [the Oklahoma City

police officer] would never have killed Tuttle if

Oklahoma City did not have a "policy" of establishing

a police force.

22

Tuttle, 471 U.S. at 823 (plurality opinion). The Court

rejected that approach to proving causation on the ground

that “[s]uch an approach provides a means for circum-

venting Monell’s limitations altogether." Jd.

The Court opted instead to require "an affirmative link

between the policy and the particular constitutional vio-

lation alleged." Jd. Where, as here, “the policy relied

upon is not itself unconstitutional, considerably more proof

than [a] single incident will be necessary in every case to

establish . . . the causal connection between the ‘policy’

and the constitutional deprivation." Jd. at 824. The Court

required a showing not merely that the challenged policy

was "likely" to lead to generalized police misconduct but

that the policy was the "moving force" behind the constitu-

tional deprivation suffered by the plaintiff and that the two

were “affirmatively linked." /d. at 824 n.8.

The Court reaffirmed in City of Canton that § 1983

plaintiffs face an exacting causation requirement in muni-

cipal liability suits. The Court said, "[FJor liability to

attach in this circumstance the identified deficiency must be

closely related to the ultimate injury. Thus in the case at

hand, respondent must still prove that the deficiency in

training actually caused the police officers’ indifference to

her medical needs. . . . To adopt lesser standards of fault

and causation would open municipalities to unprecedented

liability under § 1983." City of Canton, 489 U.S. at 391.

In upholding the district court judgment, the Fifth

Circuit applied a far more lenient causation standard than

that mandated by Tuttle and City of Canton. The appeals

court merely stated in general terms, "inadequate screening

of a deputy could likely result in the violation of citizens’

constitutional rights." Pet. App. 23a. The court added

23

without explanation, "[T]he jury could find that hiring an

unqualified applicant and authorizing him to make forcible

arrests actually caused the injuries suffered by Mrs.

Brown." Jd. at 24a. Had the proper causation standard

been applied by the lower courts, Mrs. Brown never would

have been permitted to present her claims to a jury.

Mrs. Brown made much, for examole, of the fact that

Burns had several misdemeanor convictions on his record --

including one for assault and battery. She offered no evi-

dence, however, that this minor criminal record caused the

constitutional violation -- e.g., that a similarly situated

officer without a minor criminal record would not have

dragged her from her vehicle;° or that Burns suffered from

some psychological defect (as evidenced by his misde-

meanor record) that caused him to use excessive force in

dealing with Mrs. Brown. Nor did Mrs. Brown offer

evidence attempting to rule out other likely causes of

Burns’ violent behavior -- such as that he was having the

same kind of "bad day" that even those without misde-

meanor records can have on occasion, or that he made a

mistake in judgment. See, e.g., City of Canton, 489 U.S.

at 391 ("And plainly, adequately trained officers occa-

sionally make mistakes; the fact that they do says little

* Amici note that there is no indication that Deputy Morrison,

Burns’ partner, had a similar record of misdemeanor convictions. Mrs.

Burns nonetheless contended in her suit that Morrison also acted highly

inappropriately on the night in question (e.g., by approaching her

vehicle with his gun drawn), thereby violating her constitutional rights.

Thus, the facts in this case lend little support to Mrs. Brown's

contention that Bryan County's decision to hire someone with a misde-

meanor criminal record was the "moving force" behind the violation of

her constitutional rights.

24

about the training program or the legal basis for holding

the city liable.").

Moreover, Mrs. Brown’s claims are premised on the

assumption that a municipality could develop a fool-proof

hiring policy that would ensure that all those hired would

never resort to unwarranted use of force. That assumption

is unrealistic, as the Court recognized in City of Canton in

connection with an inadequate training claim. The Court

stated that a training program should not be adjudged defic-

ient simply because a single police officer passed through

without acquiring necessary skills. The Court said, "That

a particular officer may be unsatisfactorily trained will not

alone suffice to fasten liability on the city, for the officer’ s

shortcomings may have resulted from factors other than a

faulty training program." City of Canton, 489 U.S. at 390-

91. Similarly, there is no basis for criticizing Bryan

County's hiring policy simply because one allegedly unfit

applicant slipped through the screening process. It is easy

for Mrs. Brown to second-guess Sheriff Moore after-the-

fact and contend that data known to him (including Burns’s

misdemeanor record) should have caused him to disqualify

Burns. But in the absence of evidence that Bryan County's

hiring policy has led to similar incidents of police

misconduct, City of Canton counsels against a finding that

Mrs. Burns has established the necessary "affirmative link"

between the hiring policy and her injuries.

Tuttle absolutely insists that a plaintiff attempting to

demonstrate an “affirmative link" between a challenged

policy (which is not itself unconstitutional) and the alleged

constitutional deprivation, must introduce "considerably

more proof than the single incident." Turtle, 471 U.S. at

824 (plurality opinion). Mrs. Brown has failed to meet that

burden. Other than the evidence relating to her encounter

ee AL a A CR EE

25

with Burns, Mrs. Brown's case rests solely on Bryan

County’s acceptance of the job application of someone with

a misdemeanor assault and battery record, an acceptance

that was fully in accord with Oklahoma law.’ In the

absence of evidence that those with a history of such con-

victions have, in the aggregate, appreciably inferior job

performance records than those who do not, the misde-

meanor evidence adds little to Mrs. Brown's case.

A. Allegedly Deficient Hiring Policies Can Never

Serve as a Predicate for Municipal Liability

Under § 1983.

Indeed, amici respectfully suggest that, given the

extreme difficulty in ever demonstrating that a deficient

hiring policy was the “moving force" behind subsequent

misconduct by law enforcement officers, the Court should

find as a matter of law that hiring policies can never serve

as the basis for § 1983 liability. Hiring policies are

distinguishable from training policies in this regard,

’ Mrs. Brown also contends, of course, that Bryan County's

training of Burns amounted to deliberaie indifference toward her

constitutional rights. That issue is not now before the Court. If the

Court reverses the Fifth Circuit's decision, Mrs. Brown presumably

will have the right to raise the training issue on remand.

The inherent inconsistency between Mrs. Brown's two causes of

actions merits a brief mention, however. If Bryan County's deficient

training program was the “moving force” behind the violation of Mrs.

Brown's constitutional rights, then the county's deficient hiring pro-

gram could not have also been the “moving force” behind that viola-

tion. The high standard of causation demanded in municipal liability

cases precludes both programs from being “affirmatively linked” to

Burns’ conduct. The district court's entry of judgment for Mrs. Brown

on both causes of action was, therefore, of dubious propriety.

26

because the consequences of inadequate training are

significantly more predictable. As the Court recognized in

City of Canton:

[C]ity policymakers know to a moral certainty that

their police officers will be required to arrest fleeing

felons. The city has armed its officers with firearms,

in part to allow them to accomplish this task. Thus,

the need to train officers in the constitutional

limitations on the use of deadly force, see Tennessee v.

Garner, 471 U.S. 1 (1985), can be said to be “so

obvious,” that failure to do so could be characterized

as “deliberate indifference” to constitutional rights.

City of Canton, 489 U.S. at 390 n.10. The need for train-

ing is said to be “obvious” because the failure to train “will

create an extremely high risk that constitutional violations

will ensue." /d. at 396 (O'Connor, J., concurring in part

and dissenting in part).

In contrast, it is virtually never “obvious” which job

applicants have what it takes to become adequate law en-

forcement personnel and which do not. Mrs. Brown and

her expert witness believe that those with misdemeanor

assault and battery records should automatically be disqual-

ified from consideration, while Bryan County and the

Oklahoma state legislature disagree. Given the absence of

an obviously correct answer to that question, principles of

federalism counsel against the federal judiciary imposing its

views on the matter upon municipal personnel officials.

Moreover, there are simply too many intervening

variables to state with any degree of confidence that a

deficient hiring policy was the "moving force" behind a

subsequent constitutional violation. One prominent inter-

a

27

vening variable is job training; one can expect that any

successful job applicant will be required to undergo training

before being assigned to law enforcement responsibilities,

and that an adequate training program will weed out those

who demonstrate an obvious unfitness for police work.

Unless one totally discounts the possibility that people are

capable of overcoming troubled pasts to become productive

members of society, one cannot predict with confidence

that those with minor criminal records cannot be molded

(with proper training) into competent police officers. If

they later engage in unconstitutional conduct during their

police work, there is simply no meaningful way to

determine that the misconduct was “affirmatively linked"

to a deficient municipal hiring policy as opposed to

deficient training, an honest mistake, or any one of

numerous other potential causes.

In sum, Mrs. Brown has failed to demonstrate an

“affirmative link" between Bryan County’s allegedly defi-

cient hiring policy and her injuries. Indeed, precisely

because it is virtually impossible to establish an affirmative

link between a deficient hiring policy and a subsequent

constitutional violation, amici respectfully suggest that the

Court declare that allegedly deficient hiring policies cannot

serve as a predicate for municipal liability under § 1983.

II. PRINCIPLES OF FEDERALISM DICTATE THAT

FEDERAL COURTS NOT INTERFERE WITH

MUNICIPAL LAW ENFORCEMENT PRACTICES

A principle motivation behind amici’s participation in

this case is their concern that the rapid expansion of § 1983

municipal liability causes of action in the federal courts is

upsetting principles of federalism by moving decision-

making from the state and local level to the federal level.

28

Amici believe that the Court can go a long way toward halt-

ing that expansion by making clear that § 1983 municipal

liability may be invoked only under relatively narrow

circumstances.

In the 18 years since Monell was decided, the exposure

of municipal governments to tort suits has increased

drastically. For example, between 1978 and 1986, the

amount paid out by New York City annually to resolve

tort/personal injury claims increased six-fold, to $138.9

million. City’s Nemesis: Lawyer Lipsig Makes a Killing

Suing People of New York, WALL ST. J., March 16, 1988.

The city’s annual tort-claims payments are now well in

excess of $200 million, and the city’s comptroller has

warned of a “municipal liability crisis." Jd.

Moreover, the effect of § 1983 lawsuits is not merely

financial. If the Court affirms the judgment in this case,

one can readily expect that municipalities around the

country will alter their employment practices accordingly.

Police departments will become increasingly wary of hiring

anyone who has ever been convicted of a misdemeanor, in

order to reduce the possibility of crippling tort suits. As

the Court has readily acknowledged in other contexts, the

threat of tort awards can be a highly effective means of

government regulation. See Cipollone v. Liggett Group,

Inc.. 112 S. Ct. 2608, 2620 (1992) ("State regulation can

be as effectively exerted through an award of damages as

through some form of preventive relief. The obligation to

pay compensation can be, indeed is designed to be, a

potent method of governing conduct and controlling

policy.").

Yet, as the Court recognized in Rizzo v. Goode, 423

U.S. 362, 378 (1976), “important considerations of

29

federalism" weigh against any federal-court challenge

(including challenges in the form of § 1983 actions) to the

exercise of authority by state law enforcement authorities.

While Rizzo involved an effort to enlist the federal court's

injunctive powers to control internal procedures within a

municipal police department, the instant suit for damages

is likely to have at least as much effect on such procedures

as could any federal-court injunction.

The lower federal courts have already gone a long

toward federalizing municipal law enforcement personnel

practices through their increasing recognition of § 1983

municipal liability causes of action. Amici request that the

Court begin to reverse that process. As the Court

recognized in City of Canton, a too-broad interpretation of

§ 1983 municipal liability:

[E]ngages the federal courts in an endless exercise of

second-guessing municipal employee-training pro-

grams. This is an exercise we believe the federal

courts are ill-suited to undertake, as well as one that

would implicate serious questions of federalism.

City of Canton, 489 U.S. at 392. Those words are equally

valid in the context of municipal hiring programs.

30

CONCLUSION

Amici curiae Washington Legal Foundation and the

Allied Educational Foundation respectfully request that the

Court reverse the decision of the U.S. Court of Appeals for

the Fifth Circuit.

Respectfully submitted,

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Counsel for amici curiae

June 21, 1996

Counsel wish to acknowledge the assistance of Priya

Bharathi, a third-year student at Texas Tech University

Law School, in preparing this brief.