Petition for Writ of Certiorari — City of Shepherdsville v. Rymer

re 5 = 1 1 GZ Supreme Court, U.S,

FILED

JAN 16 190¢

JOSEPH F. SPANIOL, JR,

vee

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

CITY OF SHEPHERDSVILLE, KENTUCKY,

and BEN STILLWELL : - : : Petitioners

versus

PAUL DALE RYMER - - - . Respondent

On Writ of Certiorari to The United States

Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

MARK E. EDISON

PORTER & EDISON

217 Buckman Street

Shepherdsville, Kentucky 40165

Telephone: (502) 543-2296

Counsel for Petitioners

WESTERFIELD-BONTE CO., 619 W. KENTUCKY=P.©. BOX 3251, LOUISVILLE, KY.

QUESTIONS PRESENTED FOR REVIEW

1. Did the United States Court of Appeals for the

S&th Circuit commit error in affirming a judgment for the

Respondent on the basis that the Petitioner, City of Shep-

herdsville, Kentucky, either failed to train its police offi-

cers or trained them in such a reckless or grossly negligent

manner that the misconduct was inevitable or substantially

certain to result when Respondent failed to plead or prove

this as a cause of action.

PARTIES TO THE PROCEEDING

All of the parties to the proceeding in the Court whose

judgment is sought to be reviewed are named in the cap-

tion of this Petition as filed in this Court.

ill

TABLE OF CONTENTS

Questions Presented for Review ................... —

I casts ees ccuecuseesace ii

es iy ce Vda w hk 0 6 4 Kis wa ew beens iv

ER ere ee 1, 2

Ne os kek gk da ae e686 we ey seis 2. 3

Statutory Provisions Involved ..................... 3

EE TE 3- 6

Reasons for Granting the Writ .................... 6-20

EE Ee eae 20

ey a cc there sch eewaveteseesee 21

EE ee eee eee 23-35

Opinion and Order entered October 28, 1985, in the

United States Court of Appeals for the Sixth

EERE EE ee TT CeCe TT AEE ETEEeTe 23-25

Order entered July 1, 1985, in the Supreme Court of

TS a es keke stakaevnenba eens 26

Opinion and Order entered February 11, 1985, in the

United States Court of Appeals for the Sixth

SSR es ey ere ee eee 27-33

Judgment entered May 26, 1983, in the United States

District Court for the Western District of Ken-

lV

TABLE OF AUTHORITIES

Cases: PAGE

City of Oklahoma City v. Tuttle, 471 U.S.

| Pre ret ae Peer ee ree: 6, 12, 18, 19

Monell v. New York City Dept. of Social Services,

OOS hi, te Ge CRN ig sc nek acseeeesuvasceiers 7,10

Owen v. City of Independence, 445 U. S. 622 (1980) 7,11

Rizzo v. Goode, 423 U. S. 362 (1976) .............. 7,13

Hays v. Jefferson County, Kentucky, 668 F. 2d 869

Cee: Sits EE ag asa haha datacn un < ess akc 7, 13, 16

Polk County v. Dodson, 454 U. S. 312 (1981) ...... 14, 15

Carey v. Piphers, 435 U. S. 247 (1978) ............ 8

Boyd v. Madison County Mutual Ins. Co., 653 F. 2d

EEE OS ED sarah ec annea nc ee ees 8

Sengel v. Belcher, 522 F. 2d 438 (6th Cir. 1975) .... 8

Smith v. Heath, 691 F. 2d 220 (6th Cir. 1982) ...... 8

Wheatley v. Ford, 679 F. 2d 1037 (2nd Cir. 1982) .. 8

Statutes:

28 United States Code §1254(1) 2, 3, 8, 10, 11, 13, 14, 18, 19

42 United States Code §1983 ..................2.. 3

Miscellaneous:

Rule 17.1(a)(c) Rules of the Supreme Court of the

I drt ela lace ce uceee eb wemaee 8

Blacks Law Dictionary Revised Fourth Edition

REE sac aes an ee ek cae Oe a oe en Bate 15, 16

et ALT TOL meet

No.

IN THE

SUPREME COURT OF THE UMTED STATES

October Term, 1985

CiTy OF SHEPHERDSVILLE, KENTUCKY and

BEN STILLWELL - - - - - Petitioners

v.

PauL DALE RYMER - - - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

The Petitioners herein respectfully pray that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Sixth Cireuit entered in this matter on October 28,

1985.

OPINIONS BELOW

The October 28, 1985, opinion of the Court of Ap-

peals, whose judgment is herein sought to be reviewed,

is printed as Rymer v. Davis, 225 F. 2d 756 (1985), and

is reprinted in the Appendix to this Petition, pp. 23-25.

The prior opinion of the Court of Appeals is printed as

Rymer v. Davis, 754 F. 2d 198 (1985), and is reprinted

2

in the Appendix to this Petition, pp. 27-33. The prior

judgment of the United States District Court for the

Western District of Kentucky, entered May 26, 1983,

is unpublished and is reprinted in the Appendix to this

Petition, pp. 34, 35.

JURISDICTION

The judgment of the Court of Appeals was entered

October 28, 1985. The jurisdiction of this Court is

invoked pursuant to 28, United States Code, Section

1254(1).

JURISDICTION ON WRIT OF CERTIORARI

Rule 17

CONSIDERATIONS GOVERNING REVIEW ON

CERTIORARI .1(a) (b) (ce)

1 A review on writ of certiorari is not a matter of

right, but of judicial discretion, and will be granted

only when there are special and important reasons

therefor. The following, while neither controlling nor

fully measuring the Court’s discretion, indicate the

character of reasons that will be considered.

(a) When a federal court of appeals has rendered

a decision in conflict with the decision of another fed-

eral court of appeals on the same matter; or has de-

cided a federal question in a way in conflict with a state

court of last resort; or has so far departed from the

accepted and usual course of judicial proceedings, or

so far sanctioned such a departure by a lower court, as

to call for an exercise of this court’s power of super-

vision,

Le A

3

(b) When a state court of last resort has decided a

federal question in a way in conflict with the decision

of another state court of last resort or of a federal

court of appeals.

(c) When a state court or a federal court of ap-

peals has decided an important question of federal law

which has not been, but should be, settled by this Court,

or has decided a federal question in a way in conflict

with applicable decisions of this Court.

STATUTORY PROVISION INVOLVED

The case involves Title 42, United States Code,

Section 1983, which provides as follows:

‘‘Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

state or territory or the District of Columbia, sub-

jects, or causes to be subjected, any citizen of the

United States or other person within the jurisdic-

tion thereof to the deprivation of any rights, priv-

ileges, or immunities secured by the Constitution

and the laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this

section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to

be a statute of the District of Columbia.”’

STATEMENT OF THE CASE

This is a civil rights action originally brought by

Paul Dale Rymer against the City of Shepherdsville,

Kentucky, Ben Stillwell, and numerous other Defend-

ants pursuant to 42 USC $1983.

4

The circumstances leading up to the bringing of the

above referenced action and its progressing to trial are

as follows:

On June 13, 1979, the Respondent along with nu-

merous other individuals was traveling along Inter-

state 71 and Interstate 65 in the State of Kentucky.

Respondent, in his journey across Kentucky, became

involved in a protest action being carried on by various

truck drivers on the highways this day.

It is undisputed by any party that the Respondent

was a truck driver, who on this day was involved in

what is commonly termed a convoy traveling from

northern Kentucky to a point south of Shepherdsville,

Kentucky, where the convoy was stopped by law en-

forcement officials.

There is some disagreement as to the Respondent’s

position in this convoy, but, this has no relevance to the

action brought against these Petitioners.

The convoy was halted by the joint actions of some

Kentucky State Police, some police of the City of

Shepherdsville, some police of the City of Lebanon

Junction, some police of the Bullitt County Police

force.

At the scene of this police stoppage the Respondent,

as well as three other truck drivers, was arrested on

various charges, some filed by the Kentucky State

Police, some filed by various City Pelice Officers.

Respondent received the injuries he complained of

at the scene of his arrest. He, as well as the other

arrested parties, was taken to Shepherdsville, the

county seat, where the County Jail is located. At this

5

time, Respondent was offered medical treatment by an

EMS Technician and then lodged in the jail for the

night.

On the following morning Respondent, as well as

the other arrested individuals, was taken before the

| Honorable Judge Fredrie N. Friske, Judge of the Bul-

litt District Court to enter his plea. After this was

done all weve released, and the Respondent returned to

his home in Tennessee.

On a later oceasion the Respondent returned to

Kentucky for a trial before the Bullitt Circuit Court

on some of the charges brought against him by the

Kentucky State Police. At that trial he was found

guilty of menancing by a jury, and a punishment was

set. At no time have the charges filed by the Petitioner,

Stillwell, ever been heard by any court.

This action was filed in the United States District

Court for the Western District of Kentucky on June

12, 1980, at which time the Petitioner, Stillwell, was not

named as a party defendant. He was, however, sub-

sequently joined on July 7, 1980, by the Respondent’s

First Amended Complaint which was permitted to be

filed pursuant to order of Court dated July 24, 1980.

This action came on for trial in the District Court

on May 23rd, 24th, and 25th, 1983. Prior to this time

numerous Defendants had been dismissed by the Court

and various claims of the Respondent had been dis-

missed.

The testimony presented by Petitioner at trial,

which was the only evidence as to custom, policy or

practice of the Petitioner, City, was that since 1975, in

LL _

ee

6

compliance with Kentucky Revised Statutes, all police

officers employed were required to attend training

which was conducted by the Kentucky ne of

Justice, Bureau of Training.

The Petitioner, Stillwell, had attended and success-

fully completed these required classes for four (4)

years prior to this incident in 1979.

Also during his nine (9) years of employment as a

police officer, the Petitioner, City, had not received

one (1) complaint as to his treatment, practices or pro-

cedures in the handling of prisoners or the public in the

conduct of his duties as a police officer.

At the trial of this action, before it was given to the

jury, the Court directed a Verdict in favor of three (3)

other Defendants. The Court allowed the jury to con-

sider the issues as to the two (2) Petitioners herein;

and the Judgment was thereupon entered on May 26,

1983.

Subsequent motions for a new trial or a Judgment

Notwithstanding the Verdict by both Petitioners were

overruled.

REASON FOR GRANTING THE WRIT

The judgment of the Court of Appeals in this case

directly conflicts with the Opinion of the United States

Supreme Court in City of Oklahoma City v. Tuttle, 471

U. S. —— 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985),

holding that proof of a single incident of unconstitu-

tional activity is not sufficient to impose liability under

Monell unless proof of the incident includes proof that

it was caused by an existing, unconstitutional munici-

me

7

pal policy, which policy ean be attributed to a munici-

pal policymaker. Otherwise the existence of the un-

constitutional policy and its origin must be separately

proved. But when the policy relied upon is not itself

unconstitutional, considerable more proof than a single

incident will be necessary in every case to establish

both the requisite fault on the part of the municipality,

and the causal connection between the ‘‘ policy’’ and the

constitutional deprivation.

The judgment of the Court of Appeals in this case

directly conflicts with the Opinion of the United States

Supreme Court in Monell v. New York City Dept. of

Social Services, 436 U. 8. 658, 56 L. Ed. 611, 98 S. Ct.

2018 (1978), holding that Congress did not intend

municipalities to be held liable unless action pursuant

to official municipal policy of some nature caused a

constitutional tort, and a municipality cannot be held

liable under §1983 on a respondent superior theory.

Also, its opinion directly conflicts with Owen v. City

of Independence, 445 U. 8. 622 (1980), which states

when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official

policy, inflicts the injury that the government as an

entity is responsible under §1983. And Rizzo v. Goode,

423 U. S. 362 (1976), which requires a direct causal

link between the acts of the individual officer and the

supervisor defendants.

The Court of Appeals in this case is directly in con-

flict with its own opinion in Hays v. Jefferson County,

Kentucky, 668 F. 2d 869 (1982), holding that case law

8

has limited §1983 so as not to reach isolated instances

where a negligent failure to adequately supervise, train

or control was involved.

Petitioners further respectfully subniit that the

Court of Appeals in this case has misconstrued the

holdings of Carey v. Piphers, 435 U. 8. 247 (1978) ;

Boyd v. Madison County Mutual Ins. Co., 653 F. 2d

1173 (7th Cir. 1981) ; Sengel v. Belcher, 522 F. 2d 438

(6th Cir. 1975); Smith v. Heath, 691 F. 2d 220 (6th

Cir. 1982) ; and Wheatley v. Ford, 679 F. 2d, 1037 (2nd

Cir. 1982).

Based on the foregoing, it appears the Sixth Circuit

Court of Appeals ‘‘has rendered a decision in conflict

with the decision of another Federal Court of Appeals

on the same matter, ... or has so far departed from the

accepted and usual course of judicial proceedings .. .

as to call for an exercise of this Court’s power of su-

pervision’’; or ‘‘When ...a federal court of appeals

has decided federal questions in a way in conflict with

applicable decisions of this Court.’’ Rule 17.1(a) (c),

Rules of the Supreme Court of the United States.

Did The United States Court of Appeals For The Sixth

Circuit Commit Error in Affirming a Judgment For

The Respondent on The Basis That The Petitioner,

City of Shepherdsville, Kentucky, Either Failed to

Train its Police Officers or Trained Them in Such a

Reckless or Grossly Negligent Manner That The Mis-

conduct Alleged Was Inevitable or Substantially Cer-

tain to Result, When Respondent Failed to Plead or

Prove This as a Cause of Action?

The Court of Appeals completely ignored what

Respondent had pled in his Complaint for relief.

EE en RN Re ee

9

Before looking into the precedents, this Court

should look closely at the Complaint and First

Amended Complaint filed in this action. 'The pertinent

parts of these pleadings are as follows:

Complaint, Paragraph Seven (7):

The City of Shepherdsville, acting by and through

its duly elected Mayor, James T. Sparrow, is a consti-

tutional entity authorized by act of the legislature of

the Commonwealth of Kentucky, was the employer of

the Defendants, Bobby Dennis and Mike Nalley and, as

such, is directly responsible for any judgment rendered

herein against Bobby Dennis and Mike Naliley, jointly

and severally.

First Amended Complaint, Paragraph Eight (8) :

The City of Shepherdsville, acting by and through

its duly elected Mayor, James T. Sparrow, is a consti-

tutional entity authorized by act of the legislature of

the Commonwealth of Kentucky, was the employer

either directly or by deputation of the Defendants,

Bobby Dennis, Mike Nalley and Ben Stillwell, and as

such, is directly responsible for any Judgment rendered

herein against Bobby Dennis, Mike Nalley or Ben Still-

well, jointly and severally.

This Court should look closely at these pleadings to

determine exactly what has been pled. If this strictly

sounds under the theory of Respondeat Superior, this

Court has previously ruled there was no recovery under

this theory, therefore, this issue should not have been

allowed to go to the jury as to the Petitioner, City of

Shepherdsville.

10

If, however, this Court interprets these clauses to

raise some unconstitutional official policy on the Peti-

tioner’s, City of Shepherdsville, part, then that uncon-

stitutional official policy must be the training and re-

tention of the Petitioner, Stillwell, as a police officer

of the City.

This issue has been dealt with in numerous federal

courts, and a history of their holdings is as follows:

Monell v. New York City Dept. of Social Services, 436

U. S. 658 (1978)

‘‘On the other hand, the language of §1983 read

against the background of the same legislative his-

tory compels the conclusion that Congress did not

intend municipalities to be held liable unless action

pursuant to official municipal policy of some na-

ture caused a constitutional tort. In particular we

conclude that a municipality cannot be held liable

solely because it employs a tort feasor or in other

words, a municipality cannot be held liable under

§1983 on a respondeat superior theory.

We being with the language of §1983 as passed:

Any person who, under color of any law, statute,

ordinance, regulation, custom or usage of any

State, shall subject, or cause to be subjected, any

person ... to the deprivation of any rights, privi-

leges, or immunities secured by the Constitution

of the United States, shall, any such law, statute,

ordinance, regulation, custom or usage of the State

to the contrary notwithstanding, be liable to the

party injured in any action at law, suit in equity,

or other proper proceeding for redress.’

11

The italicized language plainly imposes liability on

a government that under color of some official

policy ‘‘causes’’ an employee to violate another’s

constitutional rights. At the same time, that lan-

guage cannot be easily read to impose liability

vicariously on governing bodies solely on the basis

of the existence of an employer employee relation-

ship with a tort feasor. Indeed, the fact that Con-

gress did specifically provide that A’s tort became

B’s liability if B ‘‘caused’’ A to subject another to

a tort suggest that Congress did not intend §1983

liability to attach where such causation was

absent.’’

Also in Monell, ibid,-this Court coneluded as follows:

‘*We conclude, therefore, that a local government

may not be sued under §1983 for an injury in-

flicted solely by its employee or agents. Instead,

it is when execution of a government’s policy or

custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the govern-

ment, as an entity, is responsible under §1983.”’

This was subsequently cited with approval in Owen

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

The only testimony or evidence as to official policy

of the City of Shepherdsville, was provided by Mayor

James T. Sparrow and Officer Ben Stillwell. The

policy of the City was and is to put trained officers |

on the street. There is no showing in the evidence at

trial that any other policy, custom, or anything else

that ‘‘caused’’ any employee to violate the rights of

another. In point of fact, it is the established policy

12

of Petitioner, City, to train its employees to protect

the rights of individuals and no other policy was shown

or attempted to be shown.

The most recent decision by this court which follows

this line of cases and cites then with approval is City

of Oklahoma City v. Tuttle, 471 U. S. —_—, 85 L. Ed.

2d 791, 105 S. Ct. 2427, (1985). In that action the

court stated:

In the first place, the word ‘‘policy”’ generally im-

plies a course of action consciously chosen from

among various alternatives; it is therefore diffi-

cult in one sense even to accept the submission that

someone pursues a ‘‘policy’’ of ‘‘inadequate train-

ing’’, unless evidence be adduced which proves that

the inadequacies resulted from conscious choice—

that is, proof that the policymakers deliberately

chose a training program which would prove in-

adequate. And in the second place, some limita-

tion must be placed on establishing municipal lia-

bility through policies that are not themselves un-

constitutional, or the test set out in Monell will

become a dead letter. Obviously, if one retreats

far enough from a constitutional violation some

municipal ‘‘policy’’ can be identified behind al-

most any such harm inflicted by a municipal of-

ficial; for example, Rotramel would never have

killed Tuttle if Oklahoma City did not have a

‘‘nolicy’’? of establishing a police force. But

Monell must be taken to require proof of a city

policy different in kind from this latter example

before a claim can be sent to a jury on the theory

that a particular violation was ‘‘caused’’ by the

municipal ‘‘policy’’. At the very least there must

18

be an affirmative link between the policy and the

particular constitutional violation alleged.

This theory has been applied in another ease, Rizzo

v. Goode, 423 U. 8. 362 (1976), wherein this Court

stated :

‘There must be a direct causal link between the

acts of the individual officer and the supervisor

defendants’? . . . “‘It is essentially the same con-

cept that requires the implementation or execution

of a government policy or custom be shown before

liability can be imposed on a municipality.”’

One of the leading eases in the Sixth Circuit on this

issue is the case of Hays v. Jefferson County, Ky., 668

F. 2d 869 (1982). That Court established some guide-

lines for the imposition of liability on a municipality,

as follows:

The major impediment to simple negligence as a

basis for liability of supervisory officials and

municipalities, however, is the Supreme Court’s

decision in Rizzo v. Goode, 423 U.S. 362, 97 S. Ct.

598 46 L. Ed. 2d 561 (1976).

The Petitioner, City of Shepherdsville, as well as

most other cities in Kentucky, avails itself of the

services of the State in providing training for its

police officers.

This is done partly because of 42 U.S.C. §1983, and

partly because Kentucky law requires. The training

facilities are established and administered by the State

of Kentucky. The Court of Appeals seems to base its

decision somewhat upon the fact that Petitioner, Still-

14

well, had no specific class or training on arrest proce-

dures. Are the Courts now going to dictate the course

of study necessary to comply with the policies of 42

U.S.C. §1983? Would all training be considered null

and void because a specific class were not taught?

Does it mean nothing as to the liability of the City that

schooling is required and no prior complaints have

been received? Must each City across the United

States attempt to establish a comprehensive training

facility which will teach policemen how to react in all

cireumstaneces, or is there some reason to believe that

attendance at the only State run training facility

should be adequate? This situation appears some-

what analogous to that in Polk County v. Dodson, 454

U. S. 312 (1981). Are the Courts of this country go-

ing to dictate how government is to be run, what schools

our police are to attend, what classes they are to take,

what performance level is to be attained before suecess-

ful completion? Or should the local government be

allowed to establish a policy, which was here proven

and unrefuted, and operate under that policy, or with

the supervision of each individual detail by the Courts?

Should the Court exercise some judicial restraint when

interfering with established City policy because they

do not like the classes offered by the State for train-

ing? The Court had not previously held the State

offered training inadequate or inappropriate, but by

this decision that seems to be its impact. Now what

are the majority of cities in Kentucky to do for proper

training of their police officers?

15

The Sixth Cireuit in Hays, ibid, said:

Where, as here, the constitutional violation was

not alleged to be part of a pattern of past miscon-

duct, a supervisory official or a municipality may

be held liable only where there is essentially a com-

plete failure to train the police force or training

that is so reckless or grossly negligent that future

police misconduct is almost inevitable, e.g. Leite v.

City of Providence, 463 F. Supp. at 590, or would

properly be characterized as substantially certain

to result. Rheuark v. Shaw, 477 F. Supp. 897 (N.

D. Texas 1979).

This Court has established some guidelines to help

the lower federal courts in this type situation. There

must be a complete failure to train which is not the

case presented. The issue of what type training was

not at issue at trial in chief, and in fact was not pled

in the original or first amended complaints.

The Court further goes on to state if there is train-

ing, it must be so reckless or grossly negligent that

future police misconduct is almost inevitable.

Let us look to the specifie guidelines established

by the Court of reckless or grossly negligent.

Blacks Law Dictionary, Revised Fourth Edition

1968, defines reckless: not recking, careless, heedless,

inattentive ; indifferent to consequences. According to

circumstances it may mean desperately heedless,

wanton or willful, or it may mean only eareless, inat-

tentive, or negligent.

Blacks Law Dictionary (ibid) defines grossly neg-

ligent: The intentional failure to perform a manifest

LS

16

duty in reckless disregard of the consequences as af-

fecting life or property of another; such a gross want

of care and regard for the rights of others as to justify

the presumption of willfulness and wantomness.

The Respondent in no way proved that the Peti-

tioner, City of Shepherdsville, fell within these guide-

lines. In fact, it can be seen that the Petitioner, City,

was attempting to carry out its duty to provide trained

individuals to enforce the law.

Hays (ibid) also states:

Failure of supervisory officials to supervise, con-

trol or train offending individual officers is not

actionable absent showing that official either en-

couraged specific incident of misconduct or in some

other way directly participated in it; at minimum

plaintiff must show that official at least implicitly

authorized, approved or knowingly acquiesced in

unconstitutional conduct of offending officer.

Consider these guidelines with the Rizzo (ibid)

holding:

there must be a direct causal link between the acts

of the individual officers and the supervisory de-

fendants”’

and this court will see that based on the pleadings this

cause of action was not pled, and based on the prece-

dents the Petitioner, City, has not failed in such a

manner as to fall within the guidelines established for

liability.

This entire argument and its proper outcome were

set forth by the Sixth Circuit Court in Hays (ibid),

17

The language and history of §1983 are silent as to

whether supervisory officials and municipalities

can be held liable for negligently having failed to

R adequately train, supervise, and control individual

police officers who violate a plaintiff’s constitu-

tional rights. The language of §1983 providing

that a person who ‘‘subjects, or causes to be sub-

jected’’ another to a deprivation of constitutional

rights appears on its face to be broad enough to

encompass merely negligent deprivations. The

broad potential of this language is bolstered to

some extent also by the Supreme Court’s declara-

tion that ‘‘[s]ection [1983] should be read against

the background of tort liability that makes a man

responsible for the natural consequences of his ac-

tions.’’ Monroe v. Pape, 365 U. 8. 167, 187, 81

S. Ct. 473, 484, 5 L. Ed. 2d 492 (1961). The trend

of the case law, however, has not been in this di-

rection. Rather, the case law has limited §1983

so as not to reach isolated instances where a negli-

gent failure to adequately supervise, train, or con-

trol was involved. See, e.g., Jamison v. McCurrie,

565 F. 2d 483 (7th Cir. 1977) ; Bonner v. Coughlin,

545 FE’. 2d 565 (7th Cir. 1976) (en banc) ; Parker v.

McKeithen, 488 F’. 2d 553 (5th Cir.), cert. denied,

419 U.S. 838, 95 S. Ct. 67, 42 L. Ed. 2d 65 (1974) ;

Edmonds v. Dillin, 485 F. Supp. 897 (N. D. Ohio

1980) ; Rheuark v. Shaw, 477 F. Supp. 897 (N. D.

" Texas 1979); Leite v. City of Providence, 463 F.

Supp. 585 (D. R. [. 1978) ; Schweiker v. Gordon,

{ 442 F. Supp. 1134 (E. D. Pa. 1977); ef. Rizzo v.

Goode, 423 U. 8. 362, 370-71, 96 S. Ct. 598, 603-604,

46 L. Ed. 2d 561 (1976). But see, Carter v. Carl-

son, 144 U. 8. App. D. C. 388, 447 F. 2d 358 (D. C.

Cir. 1971), rev’d on other grounds sub mom., Dis-

ee

18

trict of Columbia v. Carter, 409 U.S. 418, 93 S. Ct.

602, 34 L. Ed. 2d 613 (1973).

A major part of the doctrinal foundation for re-

quiring a higher degree of culpability than ordi-

nary negligence is the concern that such a standard

would unduly impede or cireumscribe the per-

formance of official duties. The courts look for

some proof that a defendant has a culpable state

of mind—that the action or failure to act was to

some degree deliberate rather than inadvertent.

The verbal formulations of this concept have

yaried from gross negligence or recklessness,

Owens Vv. Haas, 601 F. 2d 1242 (2nd Cir. 1979) ;

White v. Rochford, 592 F. 2d 381 (7th Cir. 1979) ;

Jenkins v. Averett, 424 F. 2d 1228 (4th Cir. 1970) ;

Leite v. City of Providence, 463 F. Supp. 585 (D.

R. If. 1978); Schweiker v. Gordon, 442 F. Supp.

1134 (KE. D. Pa. 1977); Perry v. Elrod, 436 F.

Supp. 299 (N. D. Ill. 1977), to actions or failures

to act which, though not intended to harm the

plaintiff, were so likely to violate plaintiffs’ rights

and eause them injury that the harm was ‘‘sub-

stantially likely to result,’? Rheuark v. Shaw, 477

F. Supp. 897 (N. D. Texas 1979), to ‘purposeful

non-feasance’’ in the face of a duty to act, see

Bonner v. Coughlin, 545 F. 2d 565 (7th Cir. 1976),

to an apparent requirement of intent, see Edmonds

v. Dillin, 485 F. Supp. 722 (N. D. Ohio 1980), but

in practical terms the underlying concept appears

to be similar in the vast majority of the eases.

The Tuttle (ibid) decision completely and thor-

oughly deals with the issue here in question and follows

the prior rulings of this Court in the parameters set

forth for Lability pursuant to 42 U.S.C. §1983.

: 19

The Court set forth there must be a policy and de-

fines what constitutes a policy. It sets forth a specific

standard which must be followed if precedent is to be

of any use in the law. The Court stated in Tuttle

(ibid) :

We think this inference unwarranted; first, in its

assumption that the act at issue arose from inade-

quate training, and second, in its further assump-

tion concerning the state of mind of the municipal

policymakers. But more importantly, the infer-

ence allows a §1983 plaintiff to establish municipal

liability without submitting proof of a single ac-

tion taken by a municipal policymaker. The fore-

going discussion of the origins of Monell’s “policy

or eustom’’ requirement should make clear that, at

the least, that requirement was intended to prevent

the imposition of municipal liability under cir-

cumstances where no wrong could be ascribed to

: municipal decisionmakers. Presumably, here the

jury could draw the stated inference even in the

face of uncontradicted evidence that the munici-

pality scrutinized each police applicant and met

the highest training standards imaginable. To im-

pose liability under those circumstances would be

to impose it simply because the municipality hired

one ‘‘bad apple.”’

Since this is now the guideline which must be fol-

lowed by the United States Court of Appeals for the

Sixth Cireuit and which was not in its decision of this

ease, this Court must exercise its function to require

this federal court to abide by the precedent established

by this Court. To allow this Court to rule as it has

—

20

would be to destroy the supremacy of this Court which

the rules require.

All of the above cited precedents, however, were

completely disregarded by the Court of*Appeals in

deciding this case, and this must not be permitted.

CONCLUSION

For all the reasons, and upon the authorities cited

and argued in this, their Petition, the Petitioners re-

spectfully pray that a writ of certiorari be granted.

January 15, 1986.

217 Buckman Street

Shepherdsville, Kentucky 40165

Telephone: (502) 543-2296

Counsel for Petitioners

21

CERTIFICATE OF SERVICE

I, Mark E. Edison, a member of the Bar of this Court,

representing the Petitioners herein, do hereby certify that

I have this 15th day of January, 1986, served the foregoing

Petition for Writ of Certiorari pursuant to Rule 28.3 of

this Court upon all parties required to be served to wit:

Hon. Harley N. Blankenship and Hon. Peter Perlman, by

depositing three (3) copies of the said Petition in a United

States mailbox with first class postage prepaid, addressed

to Hon. Harley N. Blankenship, 515 Kaufman-Straus Build-

ing, Louisville Galleria, Louisville, Kentucky 40202, and

Hon. Peter Perlman, Peter Perlman Law Offices, B.S.C.,

388 South Broadway, Lexifig 5

Marx E. Epison

APPENDIX

23

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

No. 83-5586

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Pauut D. Rymer, - - - - Plaintif f-Appellee,

7.

Trooper H. A. Davis, et al., - - - Defendants,

City or SHEPHERDSVILLE, KENTUCKY,

AND Ben STILLWELL, - - Defendants-Appellants.

On Appeal from the United States District Court

for the Western District of Kentucky

Decided and Filed October 28, 1985

Before: Kerry and Jones, Circuit Judges; and Potter,

District Judge.*

Jones, Circuit Judge. The United States Supreme Court

has vacated our decision in Rymer v. Davis, 754 F. 2d 198

(6th Cir. 1984), and remanded that case to us for reconsid-

eration in light of City of Oklahoma City v. Tuttle, 105 S. Ct.

2427 (1985). See City of Shepherdsville v. Rymer, 105 S.

Ct. 3518 (1985). Upon thorough reconsideration, we re-

affirm and incorporate by reference our previous decision.

-

*The Honorable John W. Potter, District Judge, United States

District Court for the Northern District of Ohio, sitting by desig-

nation.

24

The issue in Tuttle was specifically limited to the ques-

tion of “|w]hether a single isolated incident of the use of

excessive force by a police officer establishes an official

policy or practice of a municipality sufficient to render the

municipality liable for damages under 42 U.S.C. § 1983.”

105 S. Ct. at 2431 n.2. The Supreme Court reversed the

Court of Appeals’ affirmance in Tuttle because the jury

instructions permitted the jury to “infer” from “a single,

unusually excessive use of force . . . that it was attribu-

table to inadequate training or supervision amounting to

‘deliberate indifference’ or ‘gross negligence’ on the part

of the officials in charge.” Jd. at 2435. The Court noted

that there existed independent evidence of the iiadequate

training but stated that “unfortunately for respondent, the

instructions given by the District Court allowed the jury

to impose liability on the basis of such a single incident

without the benefit of the additional evidence.” Jd. The

Court found that the jury instructions permitted the plain-

tiff to establish municipal liability without any proof of

fault on the part of the municipality. Jd; see also id. at

2440 (Brennan, J., concurring).

In the instant case, the jury was instructed:

If you find for the plaintiff with regard to his claim of

excessive force, then you will consider the claim of

excessive force, then you will consider, the claim made

by him against the City of Shepherdsville; and if you

find from the preponderance of the evidence that the

City of Shepherdsville trained its police officers in a

way that was so reckless or grossly negligent that

future police misconduct was almost inevitable or

would be properly characterized as substantially cer-

tain to result, then you shall find for the plaintiff

against the City of Shepherdsville.

sn i

Ps tetris sarscrrmnmnne

25

Thus, the City of Shepherdsville was found liable based

upon a finding by the jury that the City of Shepherdsville

inadequately trained its police officers. No inference from

a single incident of excessive force was involved. Conse-

quently, the City was not held liable because it “hired ‘one

bad apple,’” id. at 2435, but because the City was itself a

bad actor in failing to train its police force. Consequently,

Tuttle is not controlling; rather, this case presents the

exact issue upon which the Court refused to express an

opinion. See id. at 2436 n.7. We emphasize again, how-

ever, that our decision is not based on an inference but is

based on all the facts and instructions set forth in our

original disposition of this case.

Accordingly, upon reconsideration we reaffirm and in-

corporate our previous opinion.

26

July 1, 1985

[LETTERHEAD] OF THE SUPREME COURT OF

THE UNITED STATES

Mr. Mark E. Edison

217 Buckman Street

Shepherdsville, KY 40165

Re: City of Shepherdsville, Kentucky, et al., v.

Paul Dale Rymer

No. 84-1756

Dear Mr. Edison:

The Court today entered the fcellowing order in the

above entitled case:

The petition for a writ of certiorari is granted. The

judgment is vacated and the case is remanded to the United

States Court of Appeals for the Sixth Circuit for further

consideration in light of City of Oklahoma City v. Tuttle,

472 U.S. (1985)

Very truly yours,

(s) Alexander L. Stevas

Alexander lL. Stevas, Clerk

eat TORENT ARI a TOR OND ROS A LMA

27

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

No. 83-5586

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Paut D. Rymer, - - - - Plaintiff-Appellee,

v.

Trooper H. A. Davis, et al., - - - Defendants,

City or SHEPHERDSVILLE, Kentucky,

AND Bren STILLWELL, - - Defendants-A ppellants.

On Appeal from the United States District Court

for the Western District of Kentucky

Decided and Filed February 11, 1985

Before: Kerr and Jonss, Circuit Judges; and’ Porter,

District Judge.*

Jonss, Circuit Judge. This appeal presents the issue of

whether a city may be liable under 42 U.S.C. $1983 (1982)

when the city has failed to train its police officers or has

trained its police officers in a way that was so reckless or

grossly negligent that future police misconduct is almost

inevitable or substantially certain to result. We hold that

under the circumstances of this case, it was not error to find

the city liable for such a failure.

*The Honorable John W. Potter, District Judge, United States

District Court for the Northern District of Ohio, sitting by desig-

nation.

-

28

On June 13, 1979, Paul Dale Rymer participated in a

convoy on an interstate in Kentucky. The convoy was

stopped by law enforcement officials of the State of Ken-

tucky, the City of ‘Shepherdsville, the City of Lebanon

Junction, and Bullitt County. Rymer and three other truck

drivers were arrested. Officer Ben Stillwell beat and

kicked Rymer violently during the arrest. Rymer was

treated by an emergency medical technician who recom-

mended that Rymer be taken to a hospital. Officer Still-

well rejected this recommendation. Rymer and the others

were jailed for the night. The next morning the arrested

individuals were taken to the county court to enter their

pleas. They were then released.

Rymer subsequently filed a complaint in the district

court under 42 U.S.C. § 1983. The complaint named

numerous defendants. The court dismissed the complaint

as to some of the defendants and directed a verdict as to

the other defendants except Officer Stillwell and the City

of Shepherdsville (City). The jury returned a verdict

against Stillwell for $32,000 as compensatory damages and

$50,000 as punitive damages and against the City for $25,-

000 as compensatory damages. A judgment was entered

upon that verdict on May 26, 1983. The defendants’ mo-

tions for both a new trial and judgment notwithstanding

the verdict were denied. Both defendants appeal and argue

that the amount of the award is excessive. Further, the

City argues that the district court erred by not dismissing

the City prior to submitting the case to the jury and, al-

ternatively, argues that its motion for judgment notwith-

standing the verdict should have been granted.

The City’s contention must be treated as a request for

a new trial because the City did not move for a directed

verdict and, therefore, judgment nothwithstanding the ver-

dict in favor of the City would have been inappropriate.

A party against whom a verdict is rendered must comply

niet ee eee

ee ee

29

with Federal Rule of Civil Procedure 50 to obtain appellate

review of a claim that he is entitled to judgment as a matter

of law. If a party moves for judgment notwithstanding

the verdict after having failed to move for a directed ver-

dict at the close of the evidence, an appellate court cannot

order judgment for him. Fed. R. Civ. P. 50(b); see Trotter

v. Todd, 719 F. 2d 346, 350 (Sth Cir. 1983). If the evidence

was insufficient as a matter of law, however, the court can

order a new trial. C. Wright & A. Miller, Federal Practice

and Procedure §§ 2537, 2540. Because the City is arguing

that the evidence was insufficient as a matter of law, we

will treat the City’s argument as a request for a new trial.

The evidence viewed most favorably to the non-moving

party, Rymer, showed that during Rymer’s arrest, Stillwell

beat and kicked Rymer many times and hit Rymer once in

the stomach and head with a nightstick. Stillwell refused

to accept an emergency medical technician’s suggestion that

Rymer needed x-rays. Evidence of the injuries included

photographs and the testimony of Rymer, the jailer, and

the Bullitt County Sheriff. The evidence further showed

that, at the time of the incident, the City had no rules or

regulations governing its police force. Nor did the City

require any pre-employment training. The initial training

received by the officers was on-the-job training. Although

the City required the officers to complete forty hours of

training each year after being hired, none of the training

received by Officer Stillwell instructed him on arrest pro-

cedures or treatment of injured persons. The City’s police

officers used their own discretion in the arrest and treat-

ment of persons suspected of criminal activity.

The theory of liability put before the jury in this case

was that it should find for the plaintiff, Rymer, if it found

by a preponderance of the evidence that the City trained its

police officers in a way that was so reckless or grossly

negligent that future police misconduct was almost inevi-

30

table or substantially certain to result. This theory of

liability conforms to our decision in Hays v. Jefferson

County, 668 F. 2d 869 (6th Cir. 1982), cert. denied, 103 S.

Ct. 75 (1983). In Hays, we held that “a municipality may

be held liable only where there is essentially a complete

failure to train the police force, or training that is so reck-

less or grossly negligent that future police misconduct is

almost inevitable . . . or would properly be characterized

as substantially certain to result ....” Id. at 874 (cita-

tions omitted). Hays has since been questioned by a num-

ber of courts because of our failure to recognize negligence

as a basis for liability of supervisory officials and munici-

palities. Branden v. Allen, 719 F. 2d 151, 153-54 (6th Cir.

1983) ; Lopez v. Ruhl, 584 F. Supp. 639, 649 & n.7 (W. D.

Mich. 1984); Means v. City of Chicago, 535 F. Supp. 455,

462 (N. D. Ill. 1982); see also Hirst v. Gertzen, 676 F. 2d

1252, 1263 (9th Cir. 1982). Because the district court in-

structed the jury on gross negligence, we are not presented

with the question of negligence as a basis for liability.

We are, however, presented with the question of whether

the City’s failure to train its police officers regarding ar-

rest procedures was a proper hasis for liability. In Monell

v. Department of Social Services, 436 U.S. 658, 694 (1978),

the Supreme Court held that a municipality may be held

liable under section 1983 if either a municipality’s official

policy or one of its customs is the source of fhe injury. The

Court noted that the case unquestionably involved official

policy and that it, therefore, had no need to address the full

contours of municipal liability under section 1983. Id. at

694-95.

To prevail against the City, Rymer had to show that he

was deprived of a constitutional right either as a result of

a “policy statement, ordinance, regulation, or decision

adopted and promulgated by the City’s governing body” or

as a result of a “governmental ‘custom’ even though such a

ot A i a

~ oe arr oe

31

‘custom’ had not received formal approval through the

City’s official decisionmaking channels.” Williams v.

Butler, 746 F. 2d 431, 485 (Sth Cir. 1984) (quoting Monell,

436 U. S. at 691). In Hays, 668 F. 2d at 874, this Court

joined a number of courts that have interpreted Monell to

hold that a municipal custom that authorizes or condones

police misconduct can be inferred when the municipality

has failed to train or has been grossly negligent in training

its police force.’ See, e.g., Herrera v. Valentine, 653 F. 2d

1220, 1224 (Sth Cir. 1981); Owens v. Haas, 601 F. 2d 1242,

1246-47 (2d Cir.), cert. denied, 444 U.S. 980 (1979) ; Popow

v. City of Margate, 476 F. Supp. 1237, 1245-46 (D. N. J.

1979) ; Leite v..City of Providence, 463 F. Supp. 585, 590-91

(D. R. I. 1978); see also Means v. City of Chicago, 535 F.

Supp. 455, 462-63 (N. D. Ill. 1982). Further, we implicitly

agreed with the Second Cireuit, Owens, 601 F, 2d at 1246-

47, that official acquiescence may be inferred from the lack

of training even in the fact of only a single brutal incident

of police misconduct. Hays, 668 F. 2d at 870-71, 874; see

also Leite, 463 F. Supp. at 590. Contra Gilmere v. City of

1The type or amount of training necessary to avoid the inference

of a custom that authorizes or condones police misconduct is prop-

erly a jury question. We note, however, that numerous resources

are available to municipalities to guide them in supervising police

officers and in preventing instances of police brutality. See e.g.,

George C. Edwards, The Police on the Urban Frontier: A Guide to

Community Understanding (1968); Report of the National Ad-

visory Commission on Civil Disorder (1968) ; D. Hanna, A Guide to

Primary Police Management Concepts (1971) ; Institute on Police

Management for Supervisory and Administrative Personnel, Police

Management for Supervisory and Administrative Personnel (1963) ;

L. O’Donnell, Deadly Force: The True Story of How A Badge Can

Become A License to Kill (1983); L. O’Leary, The Selection and

Promotion of the Successful Police Officer (1979) ; H. Russell, Un-

derstanding Human Behavior for Effective Police Work (1976) ; P.

Whisenand, The Effective Police Manager (1981).

32

Atlanta, 737 F. 2d 894, 904 (11th Cir. 1984); Languirand v.

Hayden, 717 F. 2d 220, 227 (5th Cir. 1983).

It is not enough, however, that the plaintiff demon-

strate a general failure to train. There must exist a causal

relationship between the failure to train and the conduct of

the police officer. See Means v. City of Chicago, 535 F.

Supp. 455, 462 (N. D. Ill. 1982) (while evidence of a failure

to provide crowd control training might be relevant to a

charge of overreaction to crowd hostility, it would have

no bearing on an incident involving a single victim). In the

instant case, the plaintiff proved that the City had a custom

of allowing its police officers to determine when and how to

arrest without the benefit of supervisory regulations. The

City gave its officers carte blanche authority to do as they

wished during an arrest. See Williams v. Butler, 746 F. 2d

431 (8th Cir. 1984) (city had custom of giving judges carte

blanche authority in making personnel decisions and are

liable for constitutional injuries arising therefrom). Fur-

ther, Officer Stilwell had received no training on arrest

procedures or the treatment of injured persons. The City’s

failure to train its police officers and the City’s bestowal of

carte blanche authority to its police officers were directly

related to the ultimate abuse Rymer received during the

arrest. Consequently, Rymer had introduced sufficient evi-

dence to go to the jury. The jury obviously concluded that

the training received by Stillwell, or the lack of it under the

circumstances, was so reckless or grossly negligeut that

future police misconduct was almost inevitable or substan-

tially certain to result. Because this finding is supported

by the evidence, we uphold the jury verdict.

Both the City and Stillwell argue that the amount of the

verdict was excessive. We disagree with the contention

that “the trial court abused its discretion by granting an

award so large as to shock the judicial conscience,” Thomp-

son Vv. National Railroad Passenger Corp., 621 F, 2d 814,

33

$27 (6th Cir.), cert. denied, 449 U. S. 1035 (1980), and thus

do not so find.

Accordingly, the judgment below is Arrrrmep.

34

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 80-0309 L(A)

Pavut Date RymMer

Vv.

Mike NALLEY

Lanny Baker

City or SHEPHERDSVILLE, Kentucky

Bren STILLWELL

City or LEBANON JUNCTION

JUDGMENT

This action having been tried before a jury on May 23,

24, 25, 1983, the Court having ruled on the motions of

counsel, and the Jury having returned its verdict on May

25, 1983,

Ir Is OnperED Anp ApgupGED that this action be and it is

hereby Dismissep as against defendants City of Lebanon

Junction, Kentucky, Mike Nalley, and Lanny Baker.

Ir Is FurtHer Orperep Anp Apsupcep that the plaintiff

recover from the defendant Ben Stillwell $32,000.00 as

compensatory damages and $50,000.00 as punitive daniages,

together with interest at the rate of 8.72 per cent until date

of payment.

Ir Is FurtHer Orperep Anp Apsvupcep that the plaintiff

recover from the defendant City of Shepherdsville, Ken-

tucky, $25,000.00 as compensatory damages, together with

interest at the rate of 8.72 per cent until the date of pay-

ment.

—"

eee ee ea een awe

35

Ir Is FurtHer Orperep AND ApJupGED that costs shall

be paid by the defendants Stillwell and City of Shepherds-

ville, Kentucky.

This is a final and appealable judgment and there is no

just cause for delay.

May 26, 1983

(s) Charles M. Allen

Charles M. Allen, Chief Judge

United States District Court

Copies to counsel