Opposition Brief — Moore v. Lavicky

Supreme Court, US,

FILED

Pon NOV 25 ig@@g

ao 7

.~/ JOSEPH F. SPANIOL, J

No. 85-715 oe

Inthe Supreme Gourtof the United States

OcTOBER TERM, 1985

EDWARD L. MOORE,

Petitioner,

v.

DAVID LAVICKY,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CHRISTOPHER W. VENTERS

HARLEY E. VENTERS

4545 N. Lincoln Bivd., #104-N

Oklahoma City, Oklahome 73105

(405) 528-3344

Counsel of Record for Respondent

David A. Lavicky

November, 1985

A,

TABLE OF CONTENTS

eee PAGE

I. FIRST GROUND WHY THE CAUSE SHOULD

Py. Se EE oo en 1

A. Characterization of Facts by Petitioner

II. SECOND GROUND WHY THE CAUSE

SHOULD NOT BE REVIEWED... C—~—i«i2ST

B. Characterization of Controlling Law by

Petitioner

Ill. THIRD GROUND WHY THE CAUSE SHOULD

NOT BE REVIEWED __. Pi EAE

C. Improper Interpretation of § 1983

Liability of State Workers

EXCERPTS FROM PETITIONER MOORE’S

BRIEF pace noAS 16

CONCLUSION re jikcondeadeaean 27

—

TABLE OF AUTHORITIES

Cages PAGES!

Bennett v. City of Sidewell, @8 F.2d 762 (5th Cir.

1984) ae

Burtneiks v. City of N.Y., et al., 716 F.2d 982 (2d Cir.

1983) . ess ica Staines aa

Carey v. Piphus, 435 U.S. 247 (1978) - Sr eeciceneion eae

Hudson y. Palmer, 468 U.S. _ , 104 S.Ct. 3194 (1984). 15, 24

Lugar v. Edmondson Oil Co., Inc., et al., 457 U.S. 922

(1982) . PT

McKee v. Heggy, 703 F-2d 482 (10th Cir. 1983) 22

Monell v. Dept. of Social Services, 431 U.S. 658 (1978) 19-21

Monroe v. Pape, 365 U.S. 167 (1961) ae a re

Nashville C. & St.L. R. Co. v. Browning, 310 U.S. 362

(1940) wep die REPU RD g

Owen v. Lash, 682 F.2d 648 (7th Cir. 1982) pieces) Lae

Parratt v. Taylor, 451 U.S. 527 (1981) _... ... _..._... .15, 24

Pritchard v. Perry, 508 F.2d 423 (4th Cir. 1975) —..-.-.—s 24

Rockard v. Health & mie Comp., 710 F.2d 41 (2d

Cir. 1963). eee ete cee 19-20

Spell v. McDaniel, 591 F.Supp. 1090 (E.D.N.C. 1984) 24

Statutes

42 U.S.C. § 1983 - ova erneeeoee H

51 O.S. ne 1978 $153 a § 162 . GET NTEN eo” 12

74 O38. Sepp. $2 ieee

0 ween ae ret

2 aan

er

No. 85-715

In the

Supreme Court of the United States

OcTOBER TERM, 1985

EDWARD L. MOORE,

Petitioner,

Vv.

DAVID LAVICKY,

Respondent.

RESPONSE TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF *PPEALS FOR THE TENTH CIRCUIT

. Jespondent’s Brief in Opposition)

The Respondent, David A. Lavicky, by and through his

counsel of record prays that a Writ of Certiorari not be

issued to review the judgment of the United States Court

of Appeals for the Tenth Circuit in this matter. The Peti-

tioner’s Brief has beea reviewed, and the grounds why the

cause should not be reviewed are, as follows:

I. FIRST GROUND WHY THIS CAUSE SHOULD NOT

BE REVIEWED.

A. Characterization of “Facts” by Petitioner

Petitioner, Edward L. Moore’s, characterization during

all appeals of the civil rights trial “findings of fact” by the

federal jury. The federal civil rights jury of 1982 did not

stind

find Mr. Lavicky to be the “thief”. Mr. Lavicky is today a

hardworking citizen of Garfield County, Oklahoma. Mr.

Lavicky denied to the federal jury and at all times a steal-

ing of a 1958 pickup out of Alfalfa County despite the 1979

state court conviction of him for that theft. The federal

jury was asked by these civil rights Defendants to reweigh

Mr. Lavicky’s guilt for that theft, and the federal jury did

not find him to be a “thief” as Petitioner claims. The fed-

eral jury was also not impressed with witnesses the De-

fense brought into the federal civil rights trial to reiterate

what they had said in the state trial to convict Lavicky.

These state witnesses were not indicted, although admit-

tedly involved in that 1979 theft. To take what these par-

aded, “state court witnesses” said as “the statement of

facts” of the federal civil rights trial and the federal jury’s

“findings of fact” is clearly erroneous and misleading.

Statement of Relevant Evidence

Before the Federal Civil Rights Jury

[Tr. == trial transcript & ROA Vol. XI & XII]

On March 15, 1979, Plaintiff was arrested at his home

in Enid, Oklahoma, by Defendant Bob Burnett, Deputy

Sheriff of Garfield County, for larceny of a 1958 pickup

in Alfalfa County (Tr. 14, 1.22). Plaintiff was working

on his 1964 Chevrolet pickup truck which was parked in

his private parking place at his home (Tr. 14, 1.7). De-

fendant Bob Burnett allowed Plaintiff to go inside his

trailer alone to get a sheet to cover the motor and close

the hood with the valve covers off the engine and lock the

pickup (Tr. 15, 1.8-12). Thereafter, said Defendant Bob

Burnett took Plaintiff to the County Jail in Enid, Okla-

enpmeanmnene +n

Pee atte ~ rma oe 7

iauilies

homa, and booked him into jail (Tr. 15, 1. 2-3). Defendant

Burnett knew that an arrest warrant had been issued in

Alfalfa County for Plaintiff’s arrest, but no search and seiz-

ure warrants were issued or requested in either county, at

that time or subsequently, although the jury heard testi-

mony that stolen automobile parts were suspected to be

in the possession of the Plaintiff from information the Gar-

field County and Alfalfa County Sheriff’s offices had ob-

tained through interviews on March 8 and 9, 1979, eight

days earlier (Tr. 276) (Tr. 262, 263, 264) (Tr. 265, 1. 14-20).

The next morning, on March 16, Defendant Burnett

took time to come to the Plaintiff in jail and asked him if

he would sign a consent form for him, Burnett, to search

Plaintiff’s home and 1964 Chevrolet pickup parked there.

Plaintiff advised Defendant Burnett he had nothing to hide,

but he would like to see the consent papers and consult

with his lawyer before signing them (Tr. 17, |. 6-12; 18-20)

(Tr. 18, 1. 12-18).

Instead, Defendant Burnett, about 9:00 a.m. on March

16, 1979, got a wrecker service, Peter Martin. Burnett met

the wrecker at the entrance to the trailer park in which

Plaintiff lived and guided the wrecker to Plaintiff's home

(Tr. 72). There at Plaintiff’s home the wrecker hooked up

Plaintiff’s pickup truck at Defendant Burnett’s, and possi-

bly Sam Otis’s (Tr. 281), direction and hauled it to Frank-

lin Motors’ lot in Enid (Tr. 72, 73) (Tr. 252). Defendant

Bob Burnett and Defendant Sam Otis (Tr. 276, 1. 14-21),

working closely together on the case (Tr. 288, 1.10), had

not obtained a search and seizure warrant or consent to

seize or search the Plaintiff’s pickup (Tr. 287, 1. 16) (Tr.

255-256) (Tr. 18) (Tr. 269-271) (Tr. 454, 1.11 to Tr. 455,

a TaN

1.14). Defendant Burnett testified at trial and Defendant

Ray Pickle by deposition at trial that Defendant Burnett

only assisted Defendant Otis in the hauling of Plaintiff’s

pickup from Plaintiff's home to Franklin Motors and later

oniy assisted Defendant Otis in the search of the vehicle

(Tr. 279-281) (Tr. 454, 455) (Tr. 281, 1. 1-24). Defendant

Otis did not testify in order to defend himself -before the

jury, but his deposition was read to the jury where he said

he did not go with Burnett to Plaintiff’s home and did not

know about the taking of Plaintiff’s pickup from Plaintiff's

home until after Burnett took it to Franklin Motors (Tr.

444, 1. 12 and Tr. 445). Conflicting defense statements,

therefore, went to the jury.

Some time around noon or shortly thereafter the same

day, March 16, Defendant Sam Otis, Deputy Sheriff of

Alfalfa County, came from Alfalfa County to the Garfield

County Courthouse, according to Otis’s deposition testi-

mony, talked to Plaintiff (Tr. 442, 1.5), and thereafter Otis

and Burnett and the Eckhardt’s father and son who were

called (Tr. 443, 1.1) (Tr. 223, 1.1-9) and who had had a

1958 pickup stolen in Alfalfa County, went from the Court-

house to the Franklin Motors’ lot (Tr. 442, 1. 22) and

searched Plaintiff's 1964 Chevrolet Pickup (Tr. 443, 1.23;

Tr. 444, 1.2; Tr. 253). Neither Defendant Otis nor Defen-

dant Burnett bothered to or even tried to obtain a search

warrant for this search before leaving the Garfield County

Courthouse to go to the Franklin Motors’ lot (Tr. 285, 1. 1)

(Tr. 441) (Tr. 455, 1. 2-4). That same day Plaintiff was

transported to the Alfalfa County Jail by Defendant Otis

(Tr. 443, 1. 14).

ee

—

Five days later and on March 21, 1979, Defendant Otis

came to Enid and met at Franklin Motors Defendant Bob

Burnett and one Tom Kent who had brought a wrecker

from Helena in Alfalfa County on the instructions of the

Alfalfa County Sheriff’s office (Tr. 20) (Tr. 78-80) (Plain-

tiff’s Exhibit No. 10A; Plaintiff’s Exhibit No. 12, ROA Vol.

V; Tr. 287, 1.23). Mr. Kent transported Plaintiff’s 1964

Chevrolet pickup from Franklin Motors in Garfield County

- to Helena, Oklahoma, in Alfalfa County (Tr. 80, 1.25). De-

fendant Sam Otis and Defendant Delmar Coppack had not

bothered to get, or ask about getting, and had no search

and seizure warrant to take Plaintiff’s vehicle out of Gar-

field County to Alfalfa County. Defendant Burnett and

Defendant Pickle of Garfield County did not question this.

They treated the matter as if they were just helping Al-

falfa County seize and secure the pickup (Tr. 218) (Tr.

454-456) (Tr. 460-461, 1. 10-14) (Tr. 456, 1. 16-20) (Tr. 451,

1. 8-18). Again, at trial Defendant Otis did not testify.

Neither did Defendant Coppack or Defendant Pickle, but

depositions were read (ROA Vol. VI-[X). Defendant Bur-

nett’s depcsition was read to the jury where he stated that

District Attorney Ed Moore advised Defendant Sam Otis

to go and get the Plaintiff's pickup and bring it to Alfalfa

County (Tr. 291, 1. 16-22). Defendant Moore said the Eck-

hardts first asked him about getting the pickup soon after

they had looked at it in Garfield County at Franklin Motors

on March 16, 1979 (Tr. 353, 1. 4).

Plaintiff's 1964 Chevrolet pickup was stored at Tom

Kent’s Garage in Helena from March 21, 1979, to Novem-

ber 7, 1979, without due care (Tr. 85) (Tr. 452, 1. 17-24),

and testimony was that a stereo was stolen from it there

=

(Tr. 82, 1.23). On November 7, 1979, pursuant to instruc-

tions from the Alfalfa County Sheriff’s office, the pickup

was transported to the Courthouse in Cherokee for one day

(Tr. 23, 1. 2-6) (Tr. 81, 1. 2-4). Thereafter, it was returned

to Kent’s garage in Helena by Tom Kent, making a total

of 297 days in storage there with over 225 days outside,

unprotected (Tr. 81, 1. 23-24).

On November 7, 1979, Plaintiff was convicted of larceny

of a certain 1958 pickup, mentioned earlier, in the District

Court of Alfalfa County, which vehicle had been owned

by the Eckhardts (Tr. 48, 1.14) (Tr. 8) (Tr. 130, 1.11)

(Tr. 208, 1.22). He was the only one of four boys [Cole-

man, Mootz, Joslin, Bodell] implicated who was charged

with this crime. The other boys testified against him at

the criminal trial as they saw fit and for their own benefit.

Coleman changes his story as to what he knows or doesn’t

know about pickup parts depending on who he is.talking

to (Tr. 375). Plaintiff David Lavicky maintains his inno-

cence of the theft of the Eckhardt pickup to this day. On

the advice of his attorney he was not able to testify at the

state trial and explain what he explained to this federal

jury. This properly went to the jury and was open for their

consideration in this civil trial (Tr. 259-260) (Tr. 52-53)

(Tr. 400-411). The Eckhardts had, since March 16, °979,

told Defendants Burnett, Otis, Coppack and Moore tl. ? ‘hey

believed parts from their stolen vehicle were on the La-

vicky 1964 Chevrolet pickup (Tr. 254, 1. 8-10) (Tr. 351-353)

(Tr. 446-448) (Tr. 265, 1. 14-20). The Plaintiff did testify

at trial that around that time he traded for, and later put

on his 1964 pickup, some secondhand automotive parts he

got from two of the boys, Coleman and Joslin, implicated

but not charged with the theft of the Eckhardt pickup.

Some of these traded-for, secondhand parts could have

come from the Eckhardt pickup (Tr. 404) (Tr. 400-411).

However, in the criminal proceedings against the Plain-

tiff, no warrants were ever issued to seize and search Plain-

tiff’s pickup on March 16, 1979, despite the March 8 and 9,

1979 information given to authorities by Coleman, Joslin

and Mootz. Plaintiff’s pickup was just confiscated, mis-

cared for and eventually cannibalized. No automotive part

was removed from Plaintiff’s 1964 pickup for the purposes

of identification to demonstrate third-party ownership at

the criminal trial nor any part introduced into evidence

in the criminal trial (Tr. 314-315) (Tr. 21, 110-11) (Tr.

49, 1.13-23) (Tr. 15, 1. 4-25). Only a tool set, purported to

have been inside the Lavicky 1964 Chevrolet pickup, was

even offered into evideice, but admission was denied by

the state trial judge on a renewed trial motion to suppress

any such evidence by reason that it came from the illegal

search and seizure of Plaintiff's 1964 pickup in Garfield

County by Defendants Burnett and Otis (Tr. 340 and Tr.

349). No other item, part or accessory of Plaintiff’s pickup

was offered into evidence (Tr. 153).

On December 18, 1979, Plaintiff’s motion for a new

trial in the criminal case tried on November 7th was over-

ruled (Tr. 131). On that day Plaintiff, through his attorney

Peter Keltch, requested Defendant Moore to make arrange-

ments for the return to Plaintiff of his 1964 Chevrolet

pickup, which was not used in the criminal trial. Defen-

dant Moore advised Peter Keltch, in the presence of Plain-

tiff and c** ors, that as soon as the Eckhardts removed the

parts fron. \e vehicle which they had told him were theirs,

2

len

the Plaintiff could have what was left (Tr. 131-133). De-

fendant Moore commented to Mr. Keltch that if they didn’t

like it, they could just sue us—sue us if you want (Tr.

133, 1. 1-14).

Thereafter, in December 1979, Defendant Mocre, Sher-

iff Coppack and Deputy Otis, without notice to Plaintiff

and without hearing or order of the District Court of Al-

falfa County (Tr. 89-97) (Tr. 226-227) (Tr. 133), made

private arrangements with a garage in Cherokee, owned

by Lewis Lavicky, to which Plaintiff’s vehicle could be

taken for the Eckhardts to identify for themselves [no

authority was present to verify what they did (Tr. 94-95) ]

and remove parts they thought to be theirs (Tr. 450-451)

(Tr. 351-354) (Tr. 89-97) (Tr. 99-101). Mr. Lewis Lavicky

said he had not told or thought it necessary to tell his

father or his brother, the Plaintiff, what arrangements he

had made with Mr. Moore for the Eckhardts to come to his

shop (Tr. 100, 1.14). The Piaintiff, David Lavicky, didn’t

know about it. He was shocked and mad to find his pickup

ruined on seeing it in January 1980 in the county barn

(Tr. 135). Mr. Keltch had no idea wry ke wasn’t notified

about the disposition of Plaintiff’s pickup prior to January

22, 1980 (Tr. 13, 1.1) (Tr. 135, 1.5), when it was apparently

stripped out by January 2, 1980. Mr. Moore testifies at

Tr. 316 that the agreement was made between Mr. Lewis

Lavicky and the Eckhardts through his office and the Sher-

iff’s office. He then said yes, after being asked whether he

informed Peter Keltch of this agreement (Tr. 316, 1.25).

It is doubtful that the jury believed that Plaintiff or his

attorney knew about this illegal stripdown of Plaintiff's

pickup. On cross-examination Mr. Moore later said be

én ll ean en alana

ellie

couldn’t remember telling or talking to the Sheriff’s office

about the agreement to strip the pickup (Tr. 352, 1. 12-15).

It was Alfalfa County Sheriff’s Department, Defendant

Sam Otis or Defendant Delmar Coppack, who called Tom

Kent and told him to take Plaintiff’s 1964 Chevrolet pickup

to the private garage in Cherokee. Defendant Otis met Mr.

Kent at the garage when the pickup arrived on January

2, 1980 (Tr. 82) (Tr. 453, 1. 4-7). The Eckhardis were noti-

fied to go to the garage where they ripped out paris. How

many is anybody’s guess. The engine, transmission, wheels,

gear-shift, stereo, speakers and other parts mentioned by

the Plaintiff at Tr. 400-411 were gone. The seats were torn.

The carpet torn. The paint all corroded (Tr. 25) (Tr. 446,

1. 18-25) (Tr. 225-227) (Tr. 354). What was left of the

Plaintiff’s pickup was hauled to the Alfalfa County barn

_ (Tr. 451) after Lewis Lavicky called Defendant Coppack

to have it removed from his garage (Tr. 96-97), and Plain-

tiff was then officially notified in late January 1980 that

he could go there to get the remainder (Tr. 134-136). When

the Plaintiff saw the condition of his pickup, he left the

remainder in the barn (Tr. 125) and went to see Mr. Keltch.

Mr. Keltch called Mr. Moore about the dismantling of Plain-

tiff’s pickup and the taking of parts. Mr. Moore told Mr:

Keltch to have Plaintiff “contact his insurance company”

(Tr. 136).

The damage and loss to Mr. Lavicky’s 1964 pickup was

far more than even the Eckhardts “claimed” was theirs. If

Mr. Lavicky came by his pickup through purchase as he

testified, the problems involved with buying various items,

some of which might have been previously stolen, as testi-

tied to by others, does not make it right or rightful for

~~

“claimers” to randomly rip things out of the buyer's truck

with help from governmental officials who were also “claim-

ers” long-time family friends, such as Mr. Moore.

In addition to this testimony, the jury heard extrane-

ous testimony from Eckhardt, Coleman and Mootz that

was used at Plaintiff’s criminal trial to convict him of the

theft of the 1958 Eckhardt pickup. These three people testi-

fied to knowing little, if anything, about the taking, search-

ing, transporting and lack of care given to Plaintiff’s 1964

pickup by Defendant officials (Tr. 221 and Tr. 380). The

Plaintiff’s attorneys attempted to stop Plaintiff's civil rights

trial from deteriorating into a retrial of him for a 1979

theft of a 1958 pickup by way of a Motion in Limine (ROA

522, 608). The Judge overruled the Motion in Limine and

in came pages of prejudicial testimony that had no bearing

whatsoever on whether Defendants violated Plaintiff's civil

rights in their actions. Certainly it cannot be said by these

Defendants that any awards against them by the federal

jury for actual or punitive damages to deter the type of

conduct in this statement of facts was the result or act of

passion, partiality or prejudice of the jury in favor of the

Plaintiff, David Lavicky, in this case.

—

II. SECOND GROUND WHY REVIEW SHOULD NOT BE ,

GRANTED.

B. Characterization of Controlling Law by Petitioner

On page two, three and four Petitioner, Edward L.

Moore, quotes what he calls the “ielevant constitutional

and statutory provisions.” Of this case? Or of his Petition

for Certiorari? If he means of this case, he is specifically

omitting 42 U.S.C. § 1983, a statutory, federal question pro-

vision under which this case was brought in federal district

court. Maybe it is omitted because it reads this way:

“Every person [not just governmental unit] who,

under color of any statute, ordinance, regulations, cus-

tom or usage of any State or Territory, 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.”

As Respondent reads the above, Mr. Edward Moore

was a “person acting under color of state law” who sub-

jected and caused to be subjected a citizen, one David

Lavicky, to a deprivation of his constitutional rights, and

Mr. Lavicky is entitled to redress from the type of “person”

named in § 1983, above, who is personally liable for injur-

ing him in this way.

The Petitioner is interpreting recent case law from this

Court in such a way as to write the above statute off the

books. To help bolster Petitioner’s belief in his right to

deprive Mr. Lavicky of his constitutional civil rights re-

dress against Edward Moore personally, he further quotes

state statutes: the political subdivision state tort claims act

-

of Oklahoma 51 O.S. Supp. 1978 § 153 and § 162 and 74 O.S.

Supp. § 20f.

It is hard to tell whether Petitioner believes the above

quoted state statutes gave Mr. Lavicky a cause of action

personally against Mr. Moore, the Petitioner, after Mr.

Moore’s 1979 actio is and at the time of Mr. Lavicky’s civil

rights lawsuit in 1981 under 42 U.S.C. § 1983. However, it

can be definitively said that:

(1) Oklahoma Title 51, the Subdivision Political Tort

Claims Act did not give Mr. Lavicky a cause of action

against Mr. Moore personally for the constitutional wrong-

fulness of Mr. Moore’s conduct toward Mr. Lavicky, which

conduct rendered him personally (“every person’’) liable

to Mr. Lavicky under § 1983. [This state law has been

amended to include personal liability of state officers, such

as Mr. Moore, an acting state district prosecutor at the time

of his wrongful conduct. However, the amendment to in-

clude wrongful actions of state officers did: not become ef-

fective until October 1, 1985.| Nevertheless, it is still to be

seriously questioned if the Petitioner means to contend that

at any time, or ever, a state tort claims act will or should

take the place of federal question statute 42 U.S.C. § 1983

for governmental officials’ personal liability violations of the

Constitution of the United States. In fact, state tort claims

acts always address and recognize the possibility of paying

for any personal liability damages that result from employ-

ees’ violations of civil rights by individual governmental of-

ficials committing unconstitutional acts, and Oklahoma is no

exception here. There is even mention in Petitioner’s brief

at page 23, 1. 13, that since the state of Oklahoma has con-

current jurisdiction with the federal district courts to re-

dress violations of constitutional rights, then the federal

=

district courts can and should abstain from trying federal

question cases. It is hard to imagine that other federal

jurisdictional bases, such as federal diversity jurisdiction,

are somehow more fundamentally and federally important

than case jurisdiction for violations of federal rights.

(2) The Petitioner added to his Petition for Certiorari

another state statute, 74 O.S. Supp. 1976, § 20f, shown ef-

fective in 1976 and before his wrongful conduct toward

Mr. Lavicky. Apparently, this statute renders even state

officials personally liable, just like private citizens, for ac-

tions taken outside the scope of their authority. This stat-

ute was not cited to the Court of Appeals in his Petition

for Rehearing. It was added in an all-out effort to get this

Court to adopt a novel theory that if the state had some

avenue, any avenue, of attack for Mr. Lavicky against Mr.

Moore personally, thea he cannot redress under § 1983

where he asks a federal jury to consider whether his con-

stitutional rights have been violated by a state officer, Mr.

Moore.

In the first place, 74 O.S. Supp. § 20f addresses only

those actions of an individual working for a state taken

outside the scope of his employment (general authority).

The wrongful actions Mr. Moore took toward Mr. Lavicky

occurred during the course of his job, in his general capa-

city as a state official, ie., administrative duties, as found

by the jury. Further, the jury had explicit instruction from

the Trial Court that if the jury believed that Mr. Moore was

acting in his prosecutorial authority only, when the acts

occurred, then Mr. Moore could not be found personally

liable under § 1983 because he would be absolutely immune

from § 1983 liability by law.

ae

In the second place, Petitioner is speaking both ways,

isn’t he, when he tries so hard to find a state statute where

he could have been personally sued by Mr. Lavicky in state

court and, therefore, state “remedy” is adequate against

“him,” and then makes the thrust of this Certiorari the

proposition that if Mr. Lavicky had any right to any kind,

of relief at all in a state forum, and even if he didn’t have

any redress against Mr. Moore personally in state court at

that time, his constitutional rights were not violated by

Mr. Moore or any other “person” acting under color of state

law because the “state” didn’t know or intend to violate

his rights.

Ill. THIRD GROUND WHY RE IEW SHOULD NOT BF

GRANTED.

C. Improper Interpretation of § 1983 Liability of State

Workers

From Petitioner Moore’s brief for granting certiorari,

pages 18 and 22:

“However, their conduct (Defendants’ individual con-

duct) was ‘random and unauthorized’ from the point

of view of the State of Oklahoma which has estab-

lished a statutory procedure for determining owner-

ship of stolen property. 22 O.S; 1981, §§ 1321-1322. In

deed, there is no conceivable way the State of Okla-

home could anticipate or forestall the failure of state

actors to follow the statutory procedure, whether that

failure is negligent or intentional. The State is simply

not in a position to provide for pre-deprivation process

before its employees disposed of the truck without

following the proper statutory procedure. Parratt and

Hudson were intended for just such circumstances as

this.”

_— =

“The adoption of the wrong theory by the Court of

Appeals leaves public officials throughout the Tenth

Circuit at jeopard.- from unnecessary federal litigation

where the states of that circuit provide constitutionally

adequate post-deprivation remedies. It literally re-

sults in making federal cases of simple matters which,

as here, deal only with the ownership and disposition

of property.”

In response to the above, Respondent Lavicky would

like to refer the Court to his response to Appellant Moore’s

Petition for Rehearing in the Tenth Circuit Court of Ap-

peals filed in June 1985.* The reason is twofold. First,

there is insufficient time now to respond fully to the above

position of your Petitioner Edward Moore. Second, there

is insufficient space here to do justice to the confusion en-

gendered by Parratt and Palmer which I refer to there as

Parratt-Palmer analysis. I will excerpt some of it to make

this ground for denial of review. In a word, I would refer

the Court to Lugar v. Edmondson Oil Co., Inc., et al.. 457

U.S. 922 (1982), for its analysis of the relationship of the

“state action requirement” of the Fourteenth Amendment

and the “acting under color of state law” for individual

violations under 42 U.S.C. (1983). Lugar further reiterates

the historic purpose of § 1983 recognized in Monroe v. Pape,

365 U.S. 167 (1961), which is to prevent individual state

officials from using the cloak of their official authority under

state law to violate citizens’ rights and guarantees. Much of

Petitioner's argument was rejected by the majority in Mcn-

roe v. Pape long ago.

Who is the “state,” anyway? If the “state” legislates

its employees to do right, does that cloak state employees

from all personal unconstitutional conduct? Isn’t Petitioner

= =

really wanting a state statutory cloak of worker immunity

to write ¢ 1983 off the books as far as state employees’

personal liability is concerned? And who said this case was

a simple matter of “ownership and disposition of property?”

The same state that vows to protect Mr. Lavicky’s funda-

mental constitutional rights in its state court if the federal

court abstains?

This case involved liability for the “wrongful conduct

of governmental officials acting under color of state law,”

not a “determination of ownership and disposition of prop-

erty.” All events arise from a set of circumstances, but the

events themselves can give rise to a cause of action in their

own right, as here. Cases which address the rightfulness or

wrongfulness of the conduct of governmental officials op-

erating in a constitutional framework are not to be taken

lightly in any democracy. The fact that this must be writ-

ten in response to a brief of the Attorney General of a State

shows how serious this comment is.

*EXCERPTS FROM RESPONSE TO PETITIONER

MOORE’S PETYTION FOR REHEARING IN THE

TENTH CIRCUET

Il. The Procedural Due Process Violations

Here Using Parratt-Palmer Analysis

Assuming arguendo, that Mr. Lavicky’s constitutional

cause of action against Defendant Moore and others is

limited to procedural due process violations, and that a

state remedy had existed in Oklahoma assessing Moore’s

and other officials’ conduct, post-deprivation, and that the

Monroe v. Pape, 365 U.S. 167 (1961), abuse of power and

authority doctrine is no longer applicable to Defendant

= =

state actors violating procedural due process, and that

Palmer reasoning should be retroactively applied to “in-

tentional deprivations of property cases,” then this Court

would have to hinge a procedural due process decision on

whether or not the conduct of Defendants Moore, Coppack

and Otis in relinquishing Lavicky’s pickup to the Eckhardts

for demolition was part of and pursuant to acceptable and

established practices in the handling of private property

in “state” custody and control in order to be fairly attrib-

utable to the “state” under the Fourteenth Amendment

limitation of protection against “state action” according to

Parratt-Palmer analysis.

Plaintiff believes the record shows [excerpts follow

this Part II] that this conduct was part of and pursuant to

accepted and established courses of conduct in the handling

of private property in the custody and under the control of

named state actor officials.

The ungarnished fact that Oklahoma had statutory

frameworks for handling property in state custody and

control, and 22 O.S.A. § 1321 and § 1322 [which] might

have been applied here, which book procedures were ig-

nored by Defendant state actors, does not mean they were

acting without all the authority of state. Exercises of state

authority can be found by studying the courses of conduct

and the acceptable attitudes of “the right way to do it”

of Defendants faced with varying factual situations. The

Defendants themselves had a positive attitude that they

acted within their authority in the manner they handled

the property. They denied legally improper conduct in

court. All Defendants here agreed with and accepted De-

fendant Moore’s planned approach and helped create and

—

carry the plan into effect. The planning and coordination

with others made it impossible to act randomly. The argu-

ment now is that the conduct was unauthorized by written

state law and, therefore, no pre-deprivation opportunity to

be heard was warranted because the state also had ade-

quate post-deprivation remedy. [What remedy? is the first

question.| Further, as Justice Logan noted in his ruling,

Defendant Moore indicated he believed he had a duty to

turn over the allegedly stolen parts to the Eckharats.

And Justice Frankfurter knew in 1940 that:

“It would be a narrow conception of jurisprudence to

confine the notion of ‘laws’ to what is found written

on the statute books, and to disregard the gloss which

life has written upon it. Settled state practice... can

establish what is state law. The Equal Protection

Clause did not write an empty formalism into the

Constitution. Deeply embedded traditional ways of

carrying out state policy . . . are often tougher and

truer law than the dead words of the written text.”

Nashville C. & St. L. R. Co. v. Browning, 310 U.S. 362,

369( 1940).

As a matter of fact, all the cases cited by this Court

for purposes of this response on “established state pro-

cedure” in order to attribute the intentional or negligent

violating acts of state officials to the “state” and complete

the state action requirement for constitutional deprivation

by the state under the Fourteenth Amendment (‘no state

shall deprive . . .”) analysis according to Parratt-Palmer

procedural due process analysis, do not limit cognizable

$ 1983 claims to those where written state laws or policies

have not been violated by state officials, or only those caves

— va

where the violation lies in the procedural structure of the

written state law or policy.

Court scrutiny continues into the way things are ac-

tually or usually done in similar contexts and the official

attitudes about those matters in order to find the real way

the state is carrying on its business. And, again, under

Parratt-Palmer if the accepted practices are without pre-

deprivation opportunities to be heard and an emergency

isn’t shown, then something the “state” generally does is

constitutionally wrong no matter what the [state] books

say to do.

In recent cases, such as those mentioned by this Court,

“attribution for state action” Parratt-Palmer analysis is

compared to city officials’ actions when deciding whether

to hold the city “itself” liable for official constitutional

deprivations as an “individual” under § 1983. (‘No indi-

vidual acting under color of state law shall deprive . . .”.)

Often a Parratt-Palmer analyzed case will make reference

to a case deciding municipal (or political subdivision) lia-

bility under Monell v. Dept. of Social Services, 436 U.S.

658 (1978) standards for attributing officials’ actions to the

city, because there is no respondeat supericr liability or

vicarious liability, only individual [actor] liability under

§$ 1983. For example, Burtneiks v. City of New York, et al.,

716 F.2d 982 (2nd Cir. 1983), a procedural due process case

against the city and city officials who failed to follow the

municipal code procedures and were sued for intentional

demolition of a building without predemolition opportun-

ity to be heard by the owner, relied on Rookard v. Health

and Hospitals Corp., 710 F.2d 41 (2nd Cir. 1983), a case

deciding whether there is a § 1983 cause of action against

—20—

a political subdivision. Burtneiks, supra, says in order to

attribute officials’ actions under Parratt-Palmer Fourteenth

Amendment state action analysis:

“In our view, however, decisions made by officials with

final authority over significant matters, which contra-

vene the requirements of a written municipal code,

can constitute established state procedure. Cf. Rook-

ard, 710 F.2d at 45.”:

and, Rookard:

“The difficulty, of course, lies in identifying those offi-

cials whose actions, beca:se they may be fairly treated

as the municipality’s ac*i «8, establish policy. Where

an official has final authority over significant matters

involving the exercise of discretion, the choices he

makes represent governmental policy.”

But one cannot help noticing the reverse-purpose at-

tribution in Parratt-Palmer analysis even though munici-

pality liability standards are used to determine state ac-

tion. One attributes acts of city actors to a city to decide

if a city itself, separate from the governmental actors,

should be held amenable to a § 1983 suit. One attributes

acts of state actors to the state in Parratt-Palmer to decide

if the state actor should be held amenable to a § 1983 suit.

Usually when acts are attributed. or anything else for that

matter. it is to determine the status cf the “individual” to

whom the acts are attributed. There is no controversy with

looking for “attribution to the state” to fairly decide if the

state itself [like cities] should be amenable to § 1983 suit.

but there is controversy with drawing a new line between

governmental officials and their governmental employer fer

Fourteenth Amendment “state action” purposes {to deciric

—

if state officials themselves should be amenable to § 1983

suit]. See Lugar, Part IV, not in accord.

And if Parratt-Palmer insists in drawing that line,

courts generally must acknowledge that “fair attribution”

occurs for Monell municipality liability purposes in a

broader range of circumstances than just checking to see

if the official followed or did not follow a “boek procedure.”

Even a restrictive reading of Monell from the Fifth Circuit

in Bennett v. City of Sidewell, 728 F.2d 762 (5th Cir. 1984),

recognizes definitions of attributable city officials’ actions

to cities (and, by analogy, Parratt-Palmer state action re-

quirement) in courses of conduct well settled so as to con-

stitute custom or usage with the force of law formally or

informally adopted, and custom is one form which policy

takes and by which it is proven and patterns of conduct in

actual practice may be called customs. The pattern of con-

duct and care toward private property in present Defen-

dants’ custody and control had the force of law in Alfalfa

County, even if not formally “on the books.” Present De-

fendants had final authority over disposal of Lavicky’s

pickup, and they knew it and chose openly what to do in

a planned and pubiicly known pattern of conduct toward

property officially held in that county. All Defendants saw

nothing wrong or unusual about their conduct under state

law and did it easily after the pickup had been in state

custody and control for over nine months. There were nine

months to think what to do if any Defendant had doubted

his ability to dispose of the pickup lawfully and with state

authority.

_

Should we look at dead letter statutory law in that

county and hold the Defendants were acting without all

official authority or look to the higher calling to duty clearly

claimed by Defendant Moore and accepted by all who felt

it in their legal discretion and obligation us state actors to

dispose of the pickup to the Eckhardts, dispensing with

mere book procedures?

Before turning to the record this Court also drew at-

tention to McKee v. Heggy, 703 F.2d 482 (10th Cir. 1983).

Here the Court sought out customary procedures of the

Oklahoma City Police Department to see if the acts of

officials who wrongfully disposed of an impounded auto

could be attributed to Oklahoma City to determine the

city’s amenability to § 1983 suit. It noted the evidence of

record and implied in footnotes that these same considera-

tions would be considered in Parratt-Palmer analysis to see

if city officials were also amenable to § 1983 suit. Ti.ere-

fore, the idea of “state action reverse-purpose attribution”

has come to the Tenth Circuit. However, it was also noted

in McKee... that the feasibility of providing pre-depriva-

tion opportunity to be heard shall be carefully studied in

the Tenth Circuit before it is decided that the post-depri-

vation state remedy, if existing, is adequate for procedural

due process purposes. The Tenth Circuit views feasibility

inquiry as more than the obvious impracticability of the

governmental body preventing an individual official’s dep-

rivational act and makes it include the Supreme Court in-

quiry into the urgency for immediate deprivation for the

public good as opposed to consideration for the rights cf

the citizen being deprived. (Appellee Brief. pages 9-15)

«idl

= =

Ill. A Closer Look at Parratt-Palmer Analysis

and § 1983

Just as this case, on its facts, is not an “all fours case

for nonliability” for any Defendant herein, including De-

fendant Moore, seeking to use recent Supreme Court pro-

nouncements of the requirements for cognizable violations

of procedural due process to eliminate his liability, so must

recent Supreme Court pronouncements of requirements for

cognizable procedural due process causes of action be read

against the historical facts, purpose and precedent cf Amer-

ican civil rights law. I sincerely believe when this process

is undertaken by the Supreme Court, and it most assuredly

has not yet been undertaken so as to provide any consist-

ency to interpretation and comparison of all civil rights

issues, much of the controversial aspects of the “new state

action” teaching wiil be modified. Otherwise, blaring in-

consistencies will continue to arise. The process has al-

ready begun. This part of the brief will focus on examples

of established precedent, still used by the Supreme Court

in other civ l rights issues, except procedural due process

analysis, anc. examples of arising inconsistencies on all civil

rights issues if Parratt-Palmer inquiries are not carefully

read and interpreted along with the realistic “teachings”

of established civil rights precedent.

For example:

(1) Parratt-Palmer analysis is causing some courts to

exclaim that “a finding that state action violated an inde-

pendent substantive right secured by the Constitution is

‘qualitatively’ different from a finding that such state ac-

tion simply deprived a citizen of his right to procedural

9.

due process” Owen v. Lash, 682 F.2d 648, 651 (7th Cir.

1982), quoted in Spell vy. McDaniel, supra.

But the Supreme Court in Palmer and Parratt rested

their decisions on the basis that no, absolutely no, consti-

tutional violations had ever occurred, including procedural

due process violations. Yet there is justified confusion

above about these holdings because of the uncertainty of

knowing when and how much state actor activity to at-

tribute to a state even to hold the state actor liable for his

own actions and even if his acts are attributed to the state,

maybe the state can “fix everything” by providing some

kind of post-deprivation relief. Yet the importance of pro-

cedural due process properly applied is still with us:

“Procedural due process rules are meant to protect

persons not from the deprivation, but from the mis-

taken or unjustified deprivation of life, liberty or

property.” “The right to procedural due process is ab-

solute in the sense that it does not depend on the

merits of a claimant’s substantive assertions.” “It is

enough to invoke the procedural safeguards of the

Fourteenth Amendment that a significant property

interest is at stake, whatever the ultimate outcome of

the hearing.” Carey v. Piphus, 435 U.S. 247 (1978).

“There is no warrant for any separation of constitu-

tional rights into redressable rights and nonredress-

able rights, of major and minor unconstitutional dep-

rivations, and § 1983 makes no such distinction and

authorizes no separation.” Pritchard v. Perry, 508

F.2d 423 (4th Cir. 1975).

(2) The dissent in Bennett v. Sidewell, supra, at 771,

pointed out that the majority’s holding restricting the acts

of city officials fairly attributable to the city to the acts

~~

of high offic. = m policymaking positions only, and not to

those officiais given discretion by the city to alter or set

their own policies and customary procedures, will effec-

tively allow cities to immunize themselves from § 1983 lia-

bility for the unconstitutional actions of their appointed

Officials merely by articulating “facially constitutional”

policies in the substantive areas in which officials perform

their delegated duties.

Since Parratt-Palmer places so much emphasis on the

separateness of the “state” from its “state actors,” the above

danger can be expressed in this context, also. For instance,

Defendant Moore argues that the state statutes for hand-

ling exhibits or allegedly stolen goods it: Oklahoma are

“facially constitutional and on the books” and immunize

him from suit because any intentional acts of deprivation

of Lavicky’s property were unjustified solely because he

failed to follow these facially adequate book procedures

and, therefore, nothing he did was authorized [by the

state legislature] and cannot be attributed to the state

which immunized him by setting up these “facially con-

stitutional procedures” for state actors to follow — so, since

there must be a wrongful action by the state under the

Fourteenth before he can be found liable as an individual

acting under color of state law under § 1983, he is not liable

This overwrites Parratt-Palmer analysis to a complete over-

ruling of Monroe v. Pape, 365 U.S. 167 (1961), which these

two cases do not purport to do. See Lugar, and dissent,

infra. (Appellee Brief, pages 32-34)

* * ~

=

These questions are issues in store for courts that fol-

low Parratt-Palmer type thinking without caution, but also

questions for another case where attributable courses of

conduct do not exist, and one in a purely procedural due

process setting, and where a meaningful, available state

tort remedy exists to help redress takings to prevent pro-

cess injustice. And further, Defendant Moore applies far

too strict a reading to “acts deemed attributed and, there-

fore, authorized” by the state under Parratt-Palmer-Logan

analysis, as pointed out in Part II. The legislative or other

written word on a substantive area of law or policy is not

always the last word attributable to the state on the sub-

ject, and if the last attributed word on the subject is state

actor, constitutionally deficient, policy, custom and usage

(routinely accepted courses of conduct), then that, too,

attributes to the state, authorizing the conduct, and the

Parratt-Palmer state action requirement for a procedural

due process violation is met in that way.

For it cannot be denied |at the very least] that an

opportunity to be heard prior to final deprivation of his

pickup was deliberately denied Mr. Lavicky in this case

by these Defendant state actors. A procedural due process

violation occurs by Defendant state actors, even under

Parratt-Palmer, rendering a post facto state remedy if any,

inadequate as due process . . . when a pre-deprivation of

property opportunity to be heard is not given by operation

of a commonly accepted routine, on the books cr not, and

fairly attributable to the state by existence of the applied

practice itself; and where it would have been feasible (or

enough time available without undue systemic strain) to

provide the citizen due process before final deprivation of

=

his property. There was no stated or recognized need in

evidence shown to rush fine disposal of Mr. Lavicky’s

pickup by these Defendants. (Appellee Brief, pages 38-39)

* * *

CONCLUSION

In Conclusion, persons working for state government,

like Mr. Moore, seek a special immunity or cloak from

§ 1983 liability by claiming that state employee liability

should be determined by the same type of criteria and at-

tribution needed to find municipalities (or other political

bodies) “personally” liable under § 1983. Since state gov-

ernment cannot be sued directly under § 1983, those work-

ing under color of state law as state employees are studying

ways through confusion, such as “is their unconstitutional

conduct attributable “personally” to the state body?” in

order to make determinations of their personal liability

hinge on and mean the type of § 1983 liability attributional

findings that would be needed to determine the liability, if

allowed, of the state for which they work. Such reasoning

misses the wording and intent of § 1983 personal liability

to curb abusive use of state power and would create differ-

ent liability standards between state employees and others

operating under color of state law. However, this case was

decided correctly under all precedent, even under Parratt-

Palmer type analyses, because Mr. Mcore’s conduct ex-

claimed an unconstitutional attitude and followed an organ-

=

ized, unconstitutional, but routine, practice for the state of

Oklahoma in those counties. Therefore, review here is in-

appropriate under all precedent.

Respectfully submitted,

HARLEY E. VENTERS

CHRISTOPHER W. VENTERS

4545 N. Lincoln Blvd., #104-N

Oklahoma City, Oklahoma 73105

Counsel of Record for Respondent

David A. Lavicky

November, 1985

a ser so ak ein ct a nll inte toa thts

CERTIFICATE OF SERVICE

I hereby certify that on the ___ day of November,

1985, service of this Brief in Opposition was made by plac-

ing three (3) copies of same in the United States Mail,

postage fully prepaid, to Robert A. Nance, Asst. Attorney

General, Deputy Chief, Federal Divisions, 112 State Captol

Building, Oklahoma City, Oklahoma 73105.