Opposition Brief — Town of Saugus v. Voutour

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No. 85-210 a ol

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ed

———

In The

Supreme Court of the United States

October Term, 1985

—__-_—_ — —_ ——_-—-() << —

TOWN OF SAUGUS AND FRED FORNI,

JAMES T. VOUTOTR,

Re spon le nt

—_ -- -— —— ()----- — a

On Petition for Writ of Certiorari to Review

A Judgment of the United States Court of Appeals

for the First Circuit

——_—$$______—_§_ ()-

BRIEF IN OPPOSITION TO PETITION

()= =

Ricnarp L. NEUMEIER

Ceri L.'Crow

Parker, Coutter, Datey & WHITE

One Beaeon Street

Boston, MA 02108

(617) 723-4500

James FF, MreenHan

Meenan, Boyte & CoHEN, P.C.

85 Devonshire Street

3oston, MA 02109

(617) 823-8300

Matcotm D. Fryxs

ENGLANDER, ENGLANDER & FINKs

294 Washington Street

Boston, MA 02109

(617) 425-0011

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

| BEST AVAILABLE COPY

QUESTION PRESENTED FOR REVIEW

May A Municipality And Its Chief of Police Be Held

Liable Under § 1983 For Gross Negligence In The

Training Of Police Officers, Including, But Not Lim-

ited To, The Failure To Comply With a Mandatory

State Statute, Where The Evidence Submitted In

Opposition To A Motion For Summary Judgment

Includes An Expert Opinion That The Gross Negli-

gence in Failing To Train The Police Officers Was

A Proximate Cause Of The Plaintiff’s Injury?

il

TABLE OF CONTENTS

Pages

Question Presented for Review ..._____._- I

Table of Authorities ........ cameltoe ban Beha leae ea ackceiuen cies ili

FT | RE ee OM OTE STIN LRM al WANN 27 Ae seeTED 12

I. Certiorari Should be Denied Because This Case

Is At An Interlocutory Stage And Not Final And

As Such Is Not Ripe For Review ..W- 12

II. Certiorari Should Be Denied On The Issue Of

Whether An Unconstitutional Municipal Policy

Must Be Adopted For Liability | nder 42 U.S.C.

§ 1983 ae ~ 82

III. Certiorari Should Be Denied On The Issue Of

Causation Under 42 U.S.C. § 1983 ow. 15

IV. Certiorari Should Be Denied Because No Conflict

Exists Between The Decision Of The Court Of

Appeals And Decisions Of This Court With Re-

gard To The Existence Of A Municipal Policy

Or Custom And Liability Under 42 U.S.C. § 1983... 18

V. The Court Of Appeals Analysis of Qualified

Immunity Did Not Depart From The Supreme

Court Decision In Harlow v. Ittzgerald .............. 23

iia a a es et ee ne te 25

ill

TABLE OF AUTHORITIES

Pages

CASES

Brotherhood of Locomotive Firemen and Engine-

men v. Bangor & Aroostook R.R. Co., 389 U.S.

RS SS: fee |

Harlow v. Fitzgerald, 457 U.S. 800 (1982) 20000... 23, 24

Hays v. Jefferson County, 668 F.2d 869 (6th Cir.),

cert. dented, 459 U.S. S33 (U9S2) naeecccssscsssccsseeecsseeeensesseeee 13

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

1983), cert. dented, — U.S. —, 104 S. Ct. 2656

Lenard v. Argento, 699 F.2d 874 (7th Cir.), cert.

dented, —U.S. —, 104 S. Ct. 69 (1983) 0... 13

Moneli v. Department of Social Services, 486 U.S.

ARERR later ehh CAS sk SE 0 Ee 14, 16, 17

Monroe v. Pape, 365 U.S. 167 (1964) 20. Ecce 14

Oklahoma City v. Tuttle, — U.S. —, 105 8S. Ct. 2427

RINE | saccetieonnchsorsin ten Wael ite NTO ee Gialerag 16, 18, 20, 21, 22

Polk County v. Dodson, 454 U.S. 312 (1981) 0 14

Rizzo v. Goode, 423 U.S. 362 (1976) once escssessssseeeeeee 46, 17

Tennessee v. Garner, — U.S. —, 105 8S. Ct. 1694,

1701, n.10 (1985) eee ae ee 7

Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert. de-

en ae wae Seem CIO) oe 13

Voutour v. Vitale, 761 F.2d 812 (1st Cir. 1985)...

1/7, 19, 30, 21, 22, 23,2

Webster v. City of Houston, 689 F.2d° 1220 (5th

ian. igen)... ssi idascSaleli cect ahacelahsaiasdicabeaapanmessionee x 15

Wellington v. Daniels, 717 F.2d 982 (4th Cir, 1983) 0000. 138

iv

TABLE OF AUTHORJTIES—Continued

Pages

STATUTES

URE ¢ 7 <n 12, 18, 14, 15, 16, 18, 23

en FS SE) ; irre 9, 10, 24

OTHER AUTHORITIES

Cong. Globe, 424 Cong., Ist Sess., 447 €:.§ | Re 15

Black’s Law Dictionary (5th ed. 1979) 17

No. 85-210

In The

Supreme Court of the United States

October Term, 1985

TOWN OF SAUGUS AND FRED FORNI,

Petitioners

Vv.

JAMES T. VOUTOUR,

Respondent

ray

Vv

On Petition for Writ of Certiorari to Review

A Judgment of the United States Court of Appeals

for the First Circuit

BRIEF IN OPPOSITION TO PETITION

0

STATEMENT OF THE CASE

STATEMENT OF FACTS

A. The Shooting of Voutour.

According to the petition filed by the Town of Saugus

(Saugus) and Fred Forni (Forni) the defendant Harold

Vitale (Vitale) shot Voutour in order to stop Voutour’s

automobile hecause Vitale’s partner, Howard Wheeler

(Wheeler) was being dragged along “while the engine of

the car was revving at high throttle” (petition, p. 5). In

this and other respects the Saugus and Forni have failed

to state the facts most favorable to the plaintiff. Aecord-

l

2

ingly, since the posture of the case arose on defendants’

motions for summary judgment it is necessary to state the

facts most favorable to Voutour.

As Wheeler was approaching the passenger door of

the Voutour vehicle and reaching for the door handle,

Voutour pressed down on the accelerator and the car

skidded slightly to the right grazing Wheeler (A. 429,

431-433, 444, 483, 484, and 488). Whecler states that he

responded by grabbing the door handle with his right

hand and deliberately struck the window (intending to

break it but failing) with the flashlight in his left hand

(A. 439, 485, and 486). According te Wheeler he then

hung on to the door handle with both hands during which

time he was dragged approximately 60 feet during a

period of 50 to 60 seconds. (A. 490). If this estimate

were correct, then Voutour’s approximate speed would

have been .82 to .88 mph (or less than one mile per hvur).

On the other hand, Wheeler elsewhere testified that he

held on for a period of 15 to 20-25 seconds (A. 487). If

he was holding on for 15 seconds, the speed of the vehicle

for a 60 foot distance would have been 3.5 mph (see also

A. 602-604).

According to Wheeler the ‘‘tires were spinning, very

rapid, RPM’s making a real loud noise.” (A. 487). At

the probable cause hearing! Vitale testified, “I heard

. There was a probable cause hearing on October 27 and

28, 1977 concerning various criminal charges brought

against Voutour (A. 373, n.2). Voutour was subsequently

indicted for assault and battery with a dangerous weapon

(his car) on officer Wheeler, refusing to stop for a police

officer, and a une-way street violation. The first criminal

trial ended in a mistrial; the second with a plea of guilty

for failure to stop when signaled at the Gibbs parking lot

and the one-way street violation, and payment of the min-

imum statutory fines totaling $30.00. The felony charge

was dismissed (A. 373, n.2; also see A. 427, and 429-494).

Officer Wheeler yell to me, ‘Harry get me off... [the]

motor was racing, it was at a very high RPM. It sounded

like it was at a full throttle and the wheels were spinning

hard enough, causing a sirening effect noise’? (A. 455

and 446). Wheeler stated that he let go ‘‘as soon as the

high pitch of the tires slowed down.’’ (A. 430)?

When Voutour put his car in ‘‘park’’ on Long Place,

he again saw the same vehicle drive around onto Long

Plaee and park direetly behind him (A. 520; also see <A.

535). Voutour states, ‘I got angry because I got out

of the way of someone who was still behind me. . . . I just

2 When the wheels stopped spinning is a matter of dispute.

According to Vitale the vehicle did not stop accelerating

until after he fired the shot. (A. 86). When asked how

Voutour could have opened the door after he received

such a disabling injury, Vitale gave the following incredible

testimony at the probable cause hearing:

“| feel that after | shot him the nerves in his body

were there long enough for a snap reaction to open

the door.” (!)

(A. 450). Not only is this account disputed by Voutour

but James Fyfe, the plaintiff's expert, pointed out that the

left interior door handle of the Voutour vehicle cannot be

opened with “a single upward movement as is true of most

automobile interior door handles. Instead, to open the

door of Mr. Voutour’s automobile from the inside, one

must pull a spring-loaded handle upward and toward the

interior of the car. Having done this, one must then exert

upward pressure on the handle to disengage the lock.’

(A. 586).

: Voutour stated: “Il believed it was anybody but a police

cruiser. If it was a police cruiser there would have been

a light or siren.” (A. 522).

+

wanted to get out of there, go to my friend’s house. So

I put the car in drive and started to leave. And when |

started to leave, there was a thump on the ear... .’’ (A.

521).

Thereafter he never heard anything from outside the

ear (A. 526, 527, and 534). The motor vehicle was not

swingin’ while it traveled on Long Place ‘‘because the

road was rutted from past travel and from traffic on the

road. There were tire ruts and the vehicle tended to fol-

low the ruts’’ (A. 447). The parties were in agreement

that the wheels were spinning; the tires vere bald and

Voutour did not have snow tires on the vehicle (A. 429

and 523).

After the ‘“‘thump’’ on the passenger side there was

a period of time which lasted ‘‘maybe a second, or not

even that’’ before MacDonald, sitting in the front seat,

passenger side, recognized that the person outside the

vehicle was a police officer and he thereupon yelled out

“It’s the police! Stop!” (A.521). (Dionne also shouted

for Voutour to stop (A. 521).) Voutour hearing this imme-

diately took his foot off the accelerator and began pump-

ing the brake (A. 521). The factfinder may infer from

this testimony that the sound of the spinning tires, which

was like a ‘‘screaming noise’’, according to Wheeler (A.

429; also see A. 445, 446 and 487), died down. The court

may also infer from the affidavits of James W. Voutour

(Voutour’s father), Mercaldi, and Finan, that Vitale saw

the brake lights go on since they were in proper working

condition after the shooting (A. 557-562).

Voutour then states:

...as I was pumping the brakes to stop the car, the

ear was having difficulty stopping where the road

5

was icy and slushy. The brake fluid was lower earlier,

and I thought I was leaking brake fluid. I opened

the door and put my left foot out. I was pumping

the brakes with my right foot and was getting ready

to put the car into park.

(A. 521 and 522).

At that point, as his body was turned and the vehicle

was slowing down, he was shot and fell out ef the ear (A.

924). According to MacDonald, ‘the opened the door and

I guess he was getting out because we were almost at a

dead stop before he got shot.’? (A. 458 and 459). There-

after MacDonald, as the car was slowly rolling forward,

placed the vehicle into ‘tpark’’ and it came to a complete

halt (A. 492 and 493).

ment in June, 1963, seven departmental citations, promo-

liberation :

I took a stable stance, squatted position as I have

been trained to do for accurate shot, picked the shoul-

der area of the operator of the vehicle, took an aim,

and I fired a shot into the shoulder area.

(A. 491).

Voutour was struck on the left side of his neck and

immediately fell out of the ear door: **The car almost

ran over my leg. | tried to move my leg and I couldn’t.’’

(A. 469). As officer Vitale approached Voutour, he at

tempted to move his hand since he thought the officer

would step on it and was unable to do so (A. 470). The

officer ‘*put his hand on my throat, cheeked my pulse and

‘ Clsewhere Voutour testified that the car “. . . was almost

at stop. . . | had the door open. | had my leg out. The

next thing | was going to do was put the car in park and

get out.” The car ha dtraveled ‘‘three car lengths maybe”

while Voutour had his foot on the accelerator (A. 524).

as he left he said to another police officer, ‘this is going

to be a very hush, hush case... .’” (A. 470, 471 and 528).

According to officer Vitale, immediately after the

shooting, he went to Voutour and “T gave him my finger

and asked him to squeeze it, but I got no response at all

from him” (A. 448 and 449). Voutour never lost con-

sciousness (A. 529). The court may infer from Voutour’s

physical condition when he was on the ground that he had

been paralyzed as of the moment he was shot and thus,

contrary to Vitale’s story, the vehicle was slowing down

with the driver’s door open at the time Voutour was shot.°

After the shooting of Voutour, MacDonald was

slammed up against the car, beaten, thrown down on the

ground and kicked; he was hospitalized for three days as

a result of his beating (A. 456, 457, and 460). No Saugus

police officer was ever disciplined or even reprimanded

for any action taken on February 14, 1977.

B. Training of Saugus Police Officers

1. In order to assist him in evaluating this aspect

of the case, Voutour retained a nationally recognized ex.

pert on police procedures and practices, Fyfe (A. 3541-

5 See also Exhibit “‘D” to Plaintiff's Answers to Interrogatories

wherein Dr. Murrary Freed states: ‘It is my opinion to a

reasonable degree of medical certainty, that Mr. Voutour

was rendered immediately quadriplegic as a result of the

shooting and | can determine no way by which he could

have opened the motor vehicle after the shooting” (A. 369).

~]

360).° Fyfe’s work experience included being hired as a

Police Academy recruit by the New York Police Depart-

ment in June, 1963, seven departmental citations, promo-

tion to Sergeant, Patrol Sergeant, and finally Lieutenant,

in November, 1977 (A. 351 and 352). His educational

background included a B.S. in Criminal Justice at the

John Jay College of Criminal Justice, an M.A. in Crim-

inal Justice at the State University of New York (1972),

and a Ph.D. in Criminal Justice, State University at Al-

bany (1978) (dissertation: ‘‘Shots Fired: An Examina-

tion of New York City Police firearms Discharges’’) (A.

30U). Furthermore Iyfe has been Associate Professor

at the American University School of Justice in Wash-

ington, D.C., as well as a Senior Fellow at the Police

Foundation in Washington, D.C. (A. 350). In addition,

i’yfe has aushored numerous articles involving the use of

deadly force and has lectured extensively on that topic

and related topies (A. 354-359). Finally, Fyfe was re-

tained as an expert by the United States Department of

Justice in 1979-1980 to analyze the police use of deadly

force in Philadeiphia, 1975-1975, and he has been retained

as an expert in matters of police procedures and prac-

tices on numerous other occasions (A. 353 and 354).

6 In their petition Saugus and Forni repeatedly refer to Fyfe

as a “purported expert” (petition, see, for example, p. 6, n.

6). Voutour confesses to be somewhat puzzled by this de-

scription. Fyfe was accepted as an expert witness in the

trial before the district court and this court recently cited

an article by Fyfe entitled “Observations on Deadly Force”

27 Crime and Delinquency, 376, 378-381 (1981) as author-

ity for the proposition that there is no empirical evidence

that the meaningful threat of deadly force leads to the

arrest of more live suspects by discouraging escape at-

tempts. Tennessee v. Garner, — U.S. —, 105 S. Ct. 1694,

1701, n.10 (1985).

At both the hearing on the motions for summary jndg-

ment (A. 847-850), and in his motion for partial recon-

sideration (A. 879-883), Voutour brought Fyfe’s quali-

fications to the attention of the district court. On neither

occasion did the defendants question Fyfe’s qualifications

as an expert on police procedures and practices (A. 826-

845, 865-871, and 884-888). Indeed the district court sub-

sequently permitted Fyfe to testify as an expert as to

proper police practices in the trial involving Vitale (A.

1043-1072; see especially A. 1052, 1054, 1059, 1061, 1065,

1066 and 1072).

The Fyfe affidavit extensively discusses the position

of Saugus that it sent its officers to training academies

and conducted in-service training for its police officers.’

7 The significance of the in-service training programs may

be evaluated in part by looking at the amounts requested

by the Chief and approved by the budgets for this matter:

In-Service Training:

Budget Year: 1973 1974/75 75/76 76/77

Requested / $750/ $700/ $700/? $700/?

Approved & Expended: 692 565

(1973 Budget covered 18 month period) (A. 566-569; also

see A. 422). Also see Forni’s deposition in which he com-

plained that while he would recommend budgets ‘‘the

Town Manager could either cut something out, from there

it went to the Board of Selectmen, who did the same thing.

...” (A. 546), and “funding was cut back many times”

(A. 548). Furthermore, Chief Forni (and his command staff)

complained ‘‘that in-service training at roll call for 30 min-

utes is not adequate or effective. . . . It is my recommenda-

tion that funds be made available for a minimum of 2 week

per man year in addition to payment for training personnel

be made available” (A. 570). In its petition Saugus and

(Continued on next page)

9

In particular Fyfe pointed out that notwithstanding the

mandate of G.L. ¢. 41, § 96B that police officers receive

specified training within nine months of their appoint-

ment, Vitale did not receive his training until some seven

years after his appointment as a regular police officer

(A. 662). As for the in-service training program, in addi-

tion to I*yfe’s analysis (A. 659-673), it is worth reviewing

the testimony of Wheeler wherein he stated:

Q. ...did you receive any training as police officer

before you went to the Saugus force?

A. Before, no.

Q. And did you receive any on-the-job training up

to the time of this incident? |The shooting of

Voutour. |

A. Yes, sir. They usually try to put you with the

senior officer.

@. Your training was on-the-job training at that

time?

(Continued trom previous page)

Forni claim that “The plaintiff has adduced no evidence

whatsoever that Forni’s request for additional funds was

not promptly acceded to by the Town; indeed, the record

demonstrates that in the period prior to Voutour’s injury

in-service was conducted in full hour sessions, not the

30 minute sessions described by Forni in the undated pro-

posal.” (petition, p. 23, n.12). This is only one instance

in which the Town and Forni make a statement of fact

without a record reference. In addition, with respect to

additional funds, it is the defendant’s burden on a motion

for summary judgment to demonstrate that there exists

no genuine issue of material fact as to whether the request

for additional funds was acceded to by the Town. The

defendants failed to meet this burden. Furthermore, the

factfinder could infer from the budgets before the court

for the years 1973-1977 that for that period of time addi-

tional funds were not provided. (Supplementary Appendix

7-31).

ee ST

10

A. Yes.

Q. Up to the point of this incident?

A. Yes.

(A, 422-493),

The “senior officer’? with whom Wheeler was put on

the night of the shooting was Vitale, who himself had not

received training mandated by G.L. ¢. 41, §96B. Saugus

also relied upon Vitale’s ‘‘firearm proficiency’’ which he

had obtained through membership in hunting clubs and

the National Rifle Association prior to being employed

by Saugus (A. 271). This misapprehended the claim.

Voutour does not allege that Vitale cannot shoot. straight,

but rather that he was never provided with training as

to when to shoot and when not to shoot, or, if he were, it

was done in a grossly negligent or otherwise culpable

fashion. Given the claim made by Voutour, much of what

Saugus and Forni said about Vitale’s knowledge of fire-

arms is simply irrelevant. As the Fyfe affidavit explained

in great detail, the prior training or experience Vitale

received concerning firearms was totally inadequate to his

duties as a Saugus police officer (A. 659-673).

The description by Saugus of training allegedly pro-

vided to its police officers is almost wholly in conclu-

sory language. Thus Forni states in his affidavit that

officers were given ‘‘considerable firearms training’’. (A.

90). Jn their petition Saugus and Forni refer to ‘ex

tensive training’’, ‘‘substantial firearms training’’, and

‘considerable informal training’’ (petition, p. 6). The

answers to interrogatories, however, acknowledge that “no

formal examinations were given’’ in connection with fire-

arm training (A. 106). A jury would not be compelled

1]

to accept Saugus’ conclusory description of its in-service

training and could believe Fyfe’s opinion that it was reck-

less and grossly inadequate (A. 668-670).

Saugus also states that ‘‘most importantly, each offi-

cer was informed of, and required to follow, the written

firearms policy of the Saugus Police Department (A. 91).’’

(petition, p. 7). The reeord contains, however, evidence

from which a contrary inference could be drawn. Thus

at the deposition of Capt. Maillet he testified that he was

ordered by Chief Forni to provide cach police officer on

the 1 a.m. to 9 a.m. division with a copy of the May 7,

1975 “Poliey Procedure governing the use of Firearms”

and he testified ‘‘I am not sure if everybody did [initial

the sheet indicating that they had read and received the

policy|. I don’t know if | got everybody or not’? (A. 421,

n.29). When this testimony was provided on April 16,

1982, counsel for Saugus and Forni expressly represented

that a copy of the sheet referred to by Capt. Maillet would

be produced. As a precautionary measure, Voutour on

May 5, 1982 filed a request for production of the docu-

ment (A. 5) and when it was provided on June 7, 1982

(A. 6) it plainly indicated that neither Vitale nor Wheeler

had received the May 7, 1975 poliey (A. 682 and 685;

also see A. 6, 668, 669, 691, and 714-716). The document

expressly stated:

“ALL OFFICERS READ AND INITIAL”. (A. 685)

No initials appear next to Vitale’s and Wheeler’s names

and a jury could infer from the testimony of Capt. Maillet

and this document that they did not receive the May 7,

1975 policy notwithstanding a contrary affidavit in the

record.

ARGUMENT

I. Certiorari Should Be Denied Because This Case

Is At An Interlocutory Stage And Not Final And

As Such Is Not Ripe For Review.

The case was before the Court of Appeals to review

summary judgments granted by the district court. The

Court of Appeals reversed the district court on one issue

and remanded the case to the district. court for further

proceedings on that issue. Therefore, this case is not in

an ideal posture for review by this Court. The case is

at an interlocutory stage and as such is not ripe for re-

view by this Court. Brotherhood of Locomotive Firemen

and Enginemen v. Bangor & Aroostook RR. Co., 389 US.

327, 88 S. Ct. 4387, 488 (1967). The normal practice for

this Court in such a situation is to deny interlocutory

review.

The Court should follow its normal practice in this

ease. This case is not ripe for review. The record is not

complete. The case should be tried first so that the record

is complete. The issues argued by Saugus and Forni may

become moot or disappear at. trial. Also, on remand the

district court will have an opportunity to review the ad-

missibility and the legal sufficiency of the evidence ac-

tually submitted by the parties. Therefore, this Court

should deny certiorari in this case.

II. Certiorari Should Be Denied On The Issue Of

Whether An Unconstitutional Municipal Policy

Must Be Adopted For Liability Under 42 U.S.C.

§ 1983.

The Petitioners claim that the Town must have

adopted a policy which itself violates the Constitu-

tion in order to be liable under 42 U.S.C. 41983. Petition

at 11-12. This issue should not be addressed by this Court

at this time for the reasons set forth in the preceding sec-

tion. In addition, there is no conflict between the federal

courts of appeals on this issue so there is no need for the

Court to address it at this time. The Petitioners assert

that there is a conflict between the Voutour decision and

decisions by other federal courts of appeals. Petition at

13-14. Contrary to this assertion, there is no such con-

flict. The Petitioners cite several federal cases for the

proposition that there must be an unconstitutional munici-

pal policy or custom in order to impose liability under 42

U.S.C. § 1985. See Petition at 13-14. None of the cases

cited by the Petitioners, however, stand for such a propo-

sition. See Wellington v. Daniels, T17 F.2d 932, 936 (4th

Cir. 1983) (where established policy of failure to super-

vise by showing widespread abuse then municipality liable

for a deprivation of constitutional rights by conduct pur-

suant to such peliev); Languirand v. Hayden, 717 F.2d

220, 227-228 (5th Cir. 1983), cert. dented, — U.S. —, 104

S. Ct. 2656 (1984) (municipality hable for failure to train

where a pattern of similar incidents or serious incompe-

tence is widespread); Lenard v. Argento, 699 F.2d 874,

885 (7th Cir.), cert. denied; US. —, 104 8S. Ct. 69

(1983) (follows Hays v. Jefferson County, infra); Hayes

v. Jefferson County, 668 F.2d 869, 874 (6th Cir.), cert.

denied, 459 U.S. 833 (1982) (munieipality liable for failure

to train or supervise where among other things training

so reckless or grossly negligent that misconduct almost

inevitably or substantially certain to result): Turpin v.

Mailet, G19 F.2d 196, 201 (2d Cir.), cert. denied, 449 U.S

14

1016 (1980) (lability for failure to act where know of

constitutionally offensive acts). None of the above-cited

cases required an unconstitutional ‘‘policy” to be adopt-

ed in order to establish liability.

The Petitioners also incorrectly state that this Court

in Polk County v. Dodson, 454 U.S. 312 (1981), suggested

that a municipal policy or custom must itself be uncon-

stitutional to impose liability under 42 U.S.C. § 1983. See

Petition at 13. Rather, the plaintiff in Polk County

alleged that the action of the Offender Advocate’s office

in failing to represent him on his appeal of a criminal

conviction violated his constitutional rights. Polk County,

454 U.S. at 314-315. Thus, the case involved a claim that

there was an unconstitutional policy which the Court found

was not supported and the Court’s statements must be

read in the context of the case presented.

In addition, the Court should not grant certiorari be-

cause it is too early for the Court to address this issue.

The Court should wait to observe how further ltiga-

tion on the issue proceeds in other courts and to observe

the types of situations involved in such cases before de-

ciding this issue.

Furthermore, the Petitioners’ position on the issue

is incorrect and ignores the legislative history of § 1985.

An unconstitutional official municipal policy or custom is

not required for liability to be imposed on a municipality

under 42 U.S.C. § 1983. 42 U.S.C. § 1983 was enacted be

cause of the failure of certain states to enforce laws. Sve

Monroe v. Pape, 365 U.S. 167, 174-176 (1964), overruled

in part on other grounds, Monell v. Department of Social

Services, 436 U.S. 658 (1978). The problem perceived by

15

Congress in enacting 42 U.S.C. § 1983 was not that mu-

nicipalities or other governmental entities were adopting

‘‘official’’ policies, rules, or statutes which abrogated the

constitutional rights of citizens but rather that there was

toleration by officials of unconstitutional conduct.

As the Fifth Cireuit Court of Appeals observed:

The legislative history reveals that the Reeonstrue-

tion Congress sought to protect constitutional rights

and to wipe out Ku Klux Klan violence in the south-

ern states. The debates in Congress occasioned much

emotion and rhetorical skill. Waxing eloquent on the

failure to protect individuals’ constitutional rights,

Representative Perry cried, “sheriffs, having eyes to

see, see not; judges, having ears to hear, hear not... .

In the presence of these gangs all the apparatus and

machinery of civil government, all the processes of

justice, skulk away as if government and justice were

crimes and feared detection.’’

Webster v. City of Houston, 689 F.2d 1220, 1224 (5th

Cir. 1982), on rehearing, 735 k.2d 838 (Sth Cir. 1984)

(quoting from Con. Globe, 42d Cong., Ist Sess., 447 (1871) ).

The Town of Saugus had a duty to undertake adequate

procedures to select and train police officers to prevent

the misuse of their firearms. By its gross negligence in

breaching this duty, Saugus exposed itself to lability for

deprivations of constitutional rights ‘‘eaused” by the pol-

icv of failure to adequately train its police officers.

III. Certiorari Should Be Denied On The Issue Of

Causation Under 42 U.S.C. § 1983

The Petitioners contend that, upon the evidence before

the Court of Appeals on the review of the summary judg-

ments, a jury could not find that any policy of the Peti-

OO

.

L6

tioners with respect to training ‘‘inflicted” Voutour’s in-

jury. Petition at 18. The Petitioners seek this Court’s

review of the evidence which is not a function of this

Court. Whether the Petitioners’ pohcy or custom was the

moving force behind the deprivation of Voutour’s consti-

tutional rights is a question of fact for the jury at trial

based upon all the factual evidence and expert opinions.

Fyfe, the plaintiff’s expert, has submitted his expert opin-

ion that the Town’s failure to train was the moving force

behind the shooting. (See A. 584, 650, 662, 668).

There is no conflict between the causation require-

ments under 42 U.S.C. § 1983 as set forth in this Court’s

decisions in Monell v. Department of Social Services, 436

U.S. 658 (1978), Rizzo v. Goode, 423 U.S. 862 (1976), and

Oklahoma City v. Tuttle, — U.S. —, 105 S. Ct. 2427 (1985)

and the causation requirements applied by the Court of

Appeals in Voutour. Under Monell, 42 U.S.C. § 1983 im-

poses liability on a government that, under color of some

official policy, “causes” an employee to violate another's

constitutional rights. Monell, 486 U.S. at 692. According

to Rizzo there must he an affirmative link between the

unconstitutional deprivation and the municipal policy or

eustom. Rizzo, 423 U.S. at 371. In Tuttle the Court in

discussing municipal liability continually referred to caus-

ation. Tuttle, 105 S. Ct. at 2432, 2433, 2486. The Tuttle

Court declared that a plaintiff must establish that the

municipality “caused the plaintiff to be subjected” to the

deprivation of his constitutional rights. /d. at 2482-2453.

Liability under 42 U.S.C. § 1983 is imposed for depriva

tions caused by a municipal custom or policy. /d. at 2455

(citing Monell).

17

The Court of Appeals decision in Voutour was made

in light of the Supreme Court decisions in Monell and

Rizzo. See Voutour, 761 F.2d at 820. The Voutour deei-

sion specifically acknowledged Monell’s requirement that

official policy must be ‘‘the moving force of the constitu-

tional violation.” /d. The Court of Appeals decision also

eited the Rizzo requirement that an affirmative link be-

tween the conduct of a supervisor and an employee be

shown to impose liability on a supervisory official. Jd. at

819-820. Thus, the Voutouwr decision was based upon the

ability of a jury to find that the municipal poliey or cus

tom was the moving force behind the violation of Vou-

tour's constitutional rights in accordance with Monell and

there is no conflict for this Court to resolve.

ven if the Court of Appeals decision was that the

municipal policy or custom could be found to be the “ prox-

imate cause” of the deprivation of constitutional rights,

there is no substantive difference between the proximate

cause standard and the moving foree standard. The Peti-

tioners appear to claim that the moving foree standard

requires more than the proximate cause standard but does

not offer any explanation of the difference between them

or what more is required. Monell, Rizzo, and Tuttle all

speak in terms of causation. Monell, 436 U.S. at 691, 692;

Rizzo, 428 U.S. at 371, Tuttle, 105 S. Ct. at 2482, 2433,

2436. The petition submitted by the Petitioners itself

speaks in terms of causation. See Petition at 15, 16-17.

A definition of proximate cause of an injury is “the pri-

mary or moving cause, or that which, in a natural and econ-

{innous sequence, unbroken by any efficient, intervening

cause, produces the injury and without which the accident

could not have happened.” Black’s Law Dictionary (5th

ed. 1979) (emphasis supplied). Thus, within the defini-

tion of proximate cause is the requirement that the act or

custom or policy be the moving cause or moving force.

The Tuttle Court referred to the need to establish a policy

as a moving force. Tuttle at 2436 at n.7. It did not refer

to the moving force. See id. Thus, moving force is an-

other phrase for proximate causation. There is no stricter

criterion which can be imposed.

In addition, the Petitioners have waived their right to

raise this issue. In their brief to the Court of Appeals,

the Petitioners did not take issue with the District Court’s

use of the proximate cause standard to evaluate the case.

(See Appeal Brief at 20-25; A. 40a. )

IV. Certiorari Should Be Denied Because No Conflict

Exists Between The Decision Of The Court Of

Appeals And Decisions Of This Court With Re-

gard To The Existence Of A Municipal Policy Or

Custom And Liability Under 42 U.S.C. § 1983.

Municipal liability under 42 U.S.C. § 1983 is predi

cated upon the existence of a municipal policy or custom.

The Petitioners claim that there was no evidence of any

municipal policy or custom regarding training of police

officers upon which § 1983 liability could be based. Peti

tion at 19-20. The Petitioners are actually unhappy with

the issues of fact found by the Court of Appeals and are

asking this Court to adopt other findings. Fact finding is

not a function of this Court. The Petitioners also continue

to state the facts most favorable to them which is the incor

rect standard under summary judgment. They repeatedly

state i.. their petition that there was no evidence whatsoever

upon which to find a municipal policy or custom. See Pet:

1)

tion at 19-24. The Petitioners, however, then refer to evil

dence cited by the Court of Appeals to support its finding of

a triable issue claiming that such evidence does not support

the findings of the Court of Appeals. See Petition at 22

n.12. Thus, the Petitioners actually are dissetisfied with

the Court of Appeals factual findings.

There is ample evidence to support the Court of Ap-

peals decision. The letter from Captain Maillet regarding

the three prior shootings is instructive not only on the

issue of the adequacy of disciplinary action but also on

the issue of the problem the officers had in deciding when

to shoot and when not to shoot and that the Chief and

Town were aware of the problem. (See A. 542-545). There

are also factual disputes as to the adequacy and effective

ness of the in-service training based upon the proposal

by Forni and the analysis made by Fyfe, an expert in the

area of police procedures. Voutour, 761 F.2d at 821-822.

(A. 668-673).8

. The Petitioners also claim that the Court of Appeals ac-

knowledged that the plaintiff had adduced no evidence

that any omissions in training were even known to Saugus.

See Petition at 19. The Court of Appeals acknowledged,

however, that the issue of the Town’s knowledge of Chief

Forni’s statutory disregard in Vitale’s training was never

pursued by the parties or addressed by the district court.

Voutour, 761 F.2d at 823. The Court of Appeals distin-

guished the Town from the Chief on its own initiative. The

relationship of the parties is a question of fact for a jury.

The Court of Appeals did not decide that the Chief’s knowl-

edge could not be found to be the knowledge of the Town.

Also, in this case, the Town has waived its right to assert

that the Chief was not the policymaker for the Town with

regard to the training and supervision of the Town's police

officers. The Town and Chief Forni have had the same

(Continued on next page)

20

The petitioners assert that the Court of Appeals deei-

sion is in conflict with this Court’s recent decision in Ok-

lahoma City v. Tuttle, — U.S. —, 105 S. Ct. 2427 (1985).

The Tuttle Court held that proof of a single incident of

unconstitutional activity was sufficient to impose munici-

pal liability where there was proof that the incident was

caused by an existing, unconstitutional municipal policy.

Id. at 2436. The Tuttle Court also held that where the

policy relied upon to impose liability is not itself uncon-

stitutional, proof of a single incident will not be enough

to establish fault and a causal connection. Id.

The Court of Appeals decision is not in conflict with

Tuttle for several reasons. First, 7'ttle had not been

decided by this Court at the time the Court of Appeals

decided Voutour. In addressing the petitioners’ motion for

reconsideration, the Court of Appeals instructed the dis-

trict court to which the ease was remanded that once Tuttle

was decided by this Court, the district court should abide

by Tuttle. See Voutour, supra, 761 F.2d at 827. The Court

of Appeals announced that:

Needless to say, when this case goes back to the dis-

trict court, this circuit’s directions in the current opin-

ion must yield to any rulings the Supreme Ceurt may

by then make in Tuttle or elsewhere. To the extent

the Supreme Court in Tuttle lays down principles that

differ from any of our present rulings, the district

court on remand may and should apply its best under-

(Continued from previous page)

counsel since the case’s inception up to the present time.

If the Chief was not the policymaker then there would

have been a conflict of interest between the Chief and the

Town and they could not have been represented by the

same counsel. Neither the Town nor the Chief ever took

the position that the Chief's knowledge not not the knowl-

edge of the Town and, therefore, no counter-evidence on

that issue was submitted by Voutour.

21

standing of the Court’s decision without further appli-

eation to us.

Id. Thus there is no need for this Court to review this

ease because the district court can handle the ease on re-

mand in accordance with Tuttle on a full record.

Furthermore, there is no real conflict between this

Court’s decision in Tuttle and the Voutour decision. In

Tuttle, this Court dealt with the question of whether a

single isolated incident of unconstitutional activity can

show a general pattern evidencing a municipal policy.

Tittle, 105 S. Ct. at 2481 n.2. The Petitioners contend that,

in Voutour, the Court of Appeals inferred a municipal

policy or custom from one incident of police misconduct

(the Voutour shooting) or one omission in training or

supervision. Petition at 21. The Court of Appeals, how-

ever, did not rely on the shooting incident alone as estab-

lishing a policy. The Court of Appeals also relied on the

conscious decision by Chief Forni to violate state law by

not sending police officer(s) to police training school as

required by state law. The Tuttle Court itself acknowl-

edged that “the word ‘policy’ generally implies a course

of action consciously chosen from among various alterna-

tives;....” Tuttle, 105 S. Ct. at 2436. Also, the Vou-

tour shooting was not the only shooting incident involv-

ing the Saugus police department. There were three shoot-

ing incidents on the 1 a.m. to 9 a.m. division in the eleven

months prior to the Voutour shooting.

The Petitioners claim that no evidence was adduced

that any officer other than Vitale was improperly trained.

Petition at 22. The documents submitted by the Petition-

ers in support of their motion for summary judgment did

22

not foreclose the possibility that other police officers were

not sent to police training school at all or were not sent

until some time after the time required. This Court should

not decide such factual disputes.

Further evidence that there is no conflict between the

decisions in Tuttle and Voutour is that the Court of Ap-

peals in Voutour expressly acknowledged that an isolated

incident of excess force could not form the predicate for

the customary use of excess foree by the police department.

Voutour, 761 F.2d at 820 n.5. Thus, the Voutowr decision

is in agreement with the Tuttle decision on this very issue.

Even if the evidence established that Vitale was the

only police officer improperly trained, the Town could

still be liable under § 1983. The municipal custom was to

inadequately train Vitale and to send him out on patrol

knowing that he had not received the required training.

Unlike the Tuttle case, in Voutour there is direct evidence

as to the Town’s customs and policies with regard to the

police officer involved in the unconstitutional conduct. For

example, an individual’s constitutional rights are still vi-

olated whether a Town has a custom or policy of allow-

ing its entire police force to use excess force or its custom

or policy is to allow one particular police officer to use

excess force. The Town would have a municipal policy

or custom as to that one officer. All the Tuttle decision

requires is that a plaintiff show more than one incident

to show the policy existed. In this case, even if the Peti-

tioners adequately trained all of the other police officers

on the force, they did not adequately train Vitale in ac-

cordance with state law. Each day that Vitale was sent

out on duty without having been to training school was a

separate incident evidencing a municipal policy or custom

for which the Town can be held liable under 42 U.S.C.

§ 1983.

V. The Court Of Appeals Analysis Of Qualified Im-

munity Did Not Depart From The Supreme Court

Decision In Harlow v. Fitzgerald.

The Court of Appeals in addressing Chief Forni’s

claim of qualified immunity analyzed whether he was en-

titled to summary judgment based on qualified immunity

under the standard set forth in Harlow v. Fitzgerald, 457

U.S. 800 (1982). Voutour at 818-819, 822 n.7. The Harlow

Court observed that qualified immunity was an attempt

to balance competing values of a damages remedy to pro-

tect the rights of citizens with the need to protect officials

_Wwho are required to exercise their discretion and the re-

lated publie interest in encouraging the vigorous exercise

of official activity. Harlow at 807. The Harlow standard

for qualified immunity is that “government officials per-

forming discretionary functions generally are shielded

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.” Jd. at 818 (emphasis supplied).

During the period that Vitale was a regular police

officer, Chief Forni could be expeeted to know that ex-

cessive force by means of a shooting would violate a per-

son’s constitutional right provided by the fourteenth

anuendment not to be deprived of liberty without due

process. <As the Court of Appeals stated, Chief Forni

could be expected to know that his failure to have Vitale

attend training school and receive training as to when to

EE OOOOEOOOEEOOOooooooeeerrrlrlrlrleowre—S--

24

shoot and when not to shoot would give rise to a shooting

that wou!? violate a person’s constitutional rights. Vouw-

tour, 761 F.2d at 822 n.7. The constitutional repercus-

sions of Forni’s conduct was svfficiently foreseeable

that a reasonable person would have known that such

conduct violated clearly established statutory and consti-

tutional rights under the standard set forth by the Harlow

Court.

Also, Chief Forni could not be entitled to qualified

immunity under the Harlow standard because qualified

immunity only applied to the performance of discretionary

functions. See Harlow at 818. State law required that

full time regular police officers be sent to police training

school within nine months. See G.L. ec. 41, § 96B. This

state law was mandatory and Chief Forni acted in viola-

tion of the state law by failing to send Vitale to police

training school as required. Thus, Forni was not vested

with discretion in this situation and, therefore, is not en-

titled to qualified immunity.

The petit ion for

CONCLUSION

writ of certiorari should be denied.

Respectfully submitted,

Ricuarp L. NEUMEIER

CuHeri L. Crow

PaRKER, CouLtTerR, DaLtey & WHITE

One Beacon Street

Joston, MA O2108

(617) 723-4500

JAMES IF, MEEHAN

Merrenwan, Boyvte & CoHEN, P.C.

85 Devonshire Street

Boston, MA 02109

(617) 523-8300

Matcotmw DD. Finks

ISNGLANDER, ENGLANDER & Finks

294 Washington Street

Boston, MA 02109

(617) 423-0011