Opposition Brief — Gilmere v. City of Atlanta

NO. 85-1335 9) | FILED

IN THE

APR ¥ 1008

JOSEPH F. SPANIOL, JR

Supreme Court of the Unitet-States

October Term, 1985

EMMA F. GILMERE, Individually and as Administratrix

of the Estate of Thomas E. Patillo and for the benefit of his

next of kin,

Petitioner

V.

CITY OF ATLANTA, GEORGIA, R. C. SAMPSON, LEE

P. BROWN, MAYNARD JACKSON and GEORGE

NAPPER,

Cross-Respondents

ON CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CROSS-RESPONDENTS’ BRIEF IN OPPOSITION

MARVA JONES BROOKS

City Attorney of Atlanta, Georgia

By: Mary CAROLE COONEY *

Assistant City Attorney

GEORGE R. FERENCE

Associate City Attorney

1100 South Omni International

Atlanta, GA 30335

(404) 658-1150

Attorneys for Cross-Respondents

* Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..cccccsccccccccscccccce Ld

STATEMENT OF THE CASE ..-.-cccccccsccvcccees 2

REASONS WHY THE PETITION SHOULD

BE DEBIED acccccescccccccsccceseccvsccecces 3

1. The issues presented by the question,

whether the court below failed even to

consider if an established policy of

municipal liability resulted in decedent's

death, are already before this Court in

QMOCHEF CABS cccccscceccccvecceccvesvsecsses 3

2. Facts unique to this case make

inappropriate a review of the question

whether the principle of gross negligence

and deliberate indifference was properly

APPLLOd wccccccccccsccccescccsccsecccccssese §

3. The question presented whether

the courts below correctly construed

and applied theories of supervisory

liability involves only questions of

evidence under acknowledged rules of

law, and raises no substantial federal

GUCSCIONS oc ccccccccccccccccccccscccceses 8

4. The question presented whether damages

for the wrongful death of decedent were

erroneously withheld raises no substantial

federal question ...ccccccccccccccces cove Be

CONCLUSION Se os Bo eS ee 8 eo ee eS! Se ee oe oe oe Oe Oe oe SS Fe ee 16

ii

TABLE OF AUTHORITIES

Brazier v. Cherry, 293 F.2d 401

(5th Cir., 1961), cert. denied

rr rr ee ace beccccees 14

Carey v. Piphus, 435 U.S. 247, 98

s.Cct. l DET siteppvaesseosces LA, £3

City of Oklahoma City v. Tuttle,

U.S. , 105 Betsee 2427

reh. denied, 106 S.Ct. 16 (1985) .... 5, 6

City of Springfield v. Kibbe, Petition

for Writ of Certiorari to First

Circuit Court of Appeals, No.

ER TS Se ee ee ee 5, 7

Espinoza v. O'Dell, 633 P.2d 455

(Colo. 1981) ..... Eee rere TEEEETeTe 13

Jones v. Hildebrant, 191 Colo. l,

550 P.2d 339, cert. dismissed,

eee Lee ae. ce eke eceecenecscs Bae 13

Languirand v. Hayden, 721 F.2d 819

(5th Cir. 1983) cert. den.

sub. nom. Languirand v. City of

Pass Christian, U.S. a

ie Mr CCUG DS . occ ec ccecccres 7

Rizzo v. Goode, 423 U.S. 362, 96

S.Ct. 598 (1976) :..... eas ae ewe het ie)

Robertson v. Wegmann, 436 U.S. 584,

98 S.Ct. 1991 (1978) ..cccccccvcees 12, 13

United States v. Johnston, 268 U.S.

er Me oats Ge CESEO) sce recceces 4, 10

No. 85-1335

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1985

EMMA F. GILMERE, individually

and as Administratrix of the

Estate of Thomas E. Patillo

and for the benefit of his

SES GE Gel ehh ee SEARO Os Oe ee OES Petitioner

Vv.

CITY OF ATLANTA, GEORGIA,

R. C. SAMPSON, LEE P. BROWN,

MAYNARD JACKSON and

GEORGE NAPPER ..-.cccccccccccs Cross-Respondents

ON CROSS-PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CROSS-RESPONDENTS' BRIEF IN OPPOSITION

The cross-respondents City of Atlanta,

Georgia, R. C. Sampson, Lee P. Brown, Maynard

Jackson and George Napper respectfully request

that this Court deny the cross-petition for

writ of certiorari, seeking review of the

Eleventh Circuit's opinion in this case. That

opinion is reported at 774 F.2d 1495 (1985),

and is set out in the appendix to the petition

filed in this case sub nom. R. C. Sampson v.

Emma F. Gilmere, No. 85-1186, January 10, 1986.

All references to that cpinion, the trial

court's orders, and the opinion of the three-

judge panel, are made to the appendices to the

original-petition and designated as "(Pet.

a).*

STATEMENT OF THE CASE

In the interests of economy, cross-respon-

dents will not make specific revisions or

corrections to cross-petitioner's statement of

facts, except to note that many of the state-

ments made therein are comments on, or infer-

ences from, the testimony and exhibits present-

ed at trial, and are not reflected in the

factual findings of the opinions below.

Cross-respondent R. C. Sampson's statement of

the case, set out on pages 3-ll of the petition

of R. C. Sampson v. Emma F. Gilmere, No. 85-

1186, is adopted by all cross-respondents and

incorporated herein by reference.

REASONS WHY THE PETITION

SHOULD BE DENIED

l. The issues presented by the ques-

tion, whether the court below failed

even to consider if an established

policy of municipal liability result-

ed in decedent's death, are already

before this Court in another case.

In what might be characterized as a

recapitulation of her argument to the court

below, the cross-petitioner asserts that the

record supports the existence of a number of

established municipal policies which suffi-

ciently provide a basis for holding the City of

Atlanta liable in this case. Neither the trial

court nor the Eleventh Circuit concluded that

such established municipal "policies" were

supported by the evidence. Instead the cross-

petitioner's evidence was succinctly evaluated

by the Eleventh Circuit as follows:

At most she established that the City

failed to train one single policeman

properly in the appropriate methods

of avoiding the use of deadly force.

(Pet. 195a-196a). This Court would be com-

pelled to undertake a substantive review of the

record, which neither the trial court nor the

Eleventh Circuit found necessary, if it were to

grant certiorari to examine all possible

theories pursuant to which municipal liability

might be established. This Court has stated

its policy not to engage in such an undertak-

ing. See, United States v. Johnston, 268 U.S.

220, 227, 45 S.Ct. 496, 497 (1925).

To the extent that cross-petitioner's

question challenges the Eleventh Circuit's

analysis of whether the municipality could be

found liable for inadequate training of a given

police officer, or for a single instance of

excessive force used by that officer, such

issues are already presented to this Court and

awaiting review. On March 10, 1986, the Court

granted review in the case of City of

Springfield v. Kibbe, No. 85-1217, on the ques-

tions of whether and how inadequate training of

police officers can result in municipal liabil-

ity under section 1983, and how the single

incident rule of City of Oklahoma City v.

Tuttle, 0.8. » 205 B.C. 2427 « reh.

denied, 106 S.Ct. 16 (1985), is to be inter-

preted. As will be shown below in Part 2 of

this responsive brief, the facts of this case

do not warrant a similar grant of review.

2. Facts unique to this case make

inappropriate a review of the ques-

tion whether the principle of gross

negligence and deliberate indiffer-

ence was properly applied.

In its review of the record of this case, the

court below noted that this Court has left open

the question of the use of the gross negligence

Standard for determining municipal liability

(Pet. 194a n.9, citing Tuttle, supra, 105 S.Ct.

at 2436 n.7). Other circuits have explored the

use of a standard of municipal indifference to

unconstitutional activity as a basis of liabil-

ity (Pet. 194a-195a n.7). The facts of this

case, however, do not sufficiently raise the

issue of the applicability of these standards,

and for this reason certiorari should be

denied.

The facts, as concurred in by the trial

court and the Eleventh Circuit, were that the

police officer in question received the stan-

dard six weeks’ training when he joined the

force, served five years, left his job for less

than a year, and then was rehired with less

than one day of re-training and none of the

psychological testing administered to recruits

at that time (Pet. 192a n.6, 117a n.24).

Although the trial court found the municipality

liable, it also specifically found that it

discerned no municipal custom or policy of

failing to train police officers, only that the

municipality “certainly failed to retrain

Sampson upon his return to the Department"

(Pet. 55a). The Eleventh Circuit characterized

the officer's failure to receive further train-

ing upon being rehired as "an anomaly resulting

from his prior service on the police force"

(Pet. 198a). This Court has declined to review

a similar set of circumstances in which a

Single officer missed training administered

department-wide. See, Languirand v. Hayden,

721 F.2d 819 (5th Cir., 1983), cert. denied sub

nom. Languirand v. City of Pass Christian,

U.S. __, 104 S.Ct. 2656 (1984).

The issues raised by this question,

whether the failure to train particular offi-

cers constitutes gross negligence, and whether

the policy of inadequate training can be

inferred from one or more officers' conduct

during a single incident, are awaiting review

by this Court in City of Springfield v. Kibbe,

supra. The facts of this case, aptly described

as anomalous, will add nothing to that review.

EE a

They do not approach any judicially accepted

standard of municipal liability, and make the

grant of certiorari inappropriate as to this

question.

3. The question presented whether

the courts below correctly construed

and applied theories of supervisory

liability involves only questions of

evidence applied under acknowledged

rules of law, and raises no substan-

tial federal questions.

The issues raised by this question turn on the

particular facts of this case only, and whether

those facts meet the standards established by

this Court for proving the liability of super-

visory officials pursuant to 42 U.S.C. Section

1983. This issue has been resolved three times

in favor of cross-respondents (Pet. 42a-45b,

149a-155a, 198a-199a), each time because it was

found that the record failed to demonstrate an

“affirmative link" between the tortious miscon-

duct alleged and the adoption of a plan or

policy by the supervisors - express or other-

wise - showing their authorization or approval

of such misconduct. See, Rizzo v. Goode, 423

U.S. 362, 371, 96 S.Ct. 598, 604 (1976). The

cross-petitioner does not quarrel directly with

this standard, but instead asserts that cross-

respondents Jackson, Brown and Napper are

liable because “they failed in their statutory

duty to properly train and supervise the offi-

cers" (Cross-pet. 53). No evidence to support

this assertion has been offered, however. In

fact, the trial court. emphasized the lack of

probative evidence on this issue.

Plaintiff concedes that she named

Jackson as a Defendant merely because

he appointed Brown and Napper.

Plaintiff's Proposed Findings of Fact

and Conclusions of Law at 9. Plain-

tiff presented no evidence regarding

any further connection of Jackson to

the events at issue here.

7” * *

10

Plaintiff presented no evidence of

any direct participation by Brown

and Napper in the shooting of Patillo

The “affirmative link" between

Patillo's death and the actions of

Brown and Napper must therefore con-

cern their failure to implement an

adequate training program. However,

Plaintiff presented no evidence that

Brown and Napper had any connection

with the selection and training of

Atlanta police officers, other than

their “mere right to control" such

activities.

(Pet. 42a-44a). No assistance has been

given to the Court pointing out testimony

Or other evidence which would show the

trial court's findings set out above to be

Clearly erroneous. This Court has ruled

that certiorari will not be granted to

review evidence and discuss specific facts.

United States v. Johnston, supra. Because

consideration of this question will compel the

review of the entire record merely to resolve,

in the face of three judicial findings to the

contrary, whether certain acknowledged legal

standards were met, certiorari should be

denied.

4. The question presented whether

damages for the wrongful death of

decedent were erroneously withheld

raises no substantial federal ques-

tion.

The cross-petitioner argues that the

courts below erred in the amount of damages

awarded for two reasons: first, because

Section 1983 itself requires the adoption of

state tort law which would have awarded the

full value of decedent's life to his estate;

and second, because a pendent state law claim

for wrongful death was not recognized or com-

pensated.

In its consideration of the issue of

damages, the trial court noted that the dece-

dent left neither widow nor children (Pet.

59a), and that he was not contributing to the

support of any of his adult siblings at the

time of his death (Pet. 63a). Relying on this

Court's holding, in Carey v. Piphus, 435 U.S.

247, 254, 98 S.Ct. 1042, 1047 (1978), that "the

compensation principle" should determine the

measure of damages under Section 1983 (Pet.

8la-82a), the trial court found that an award

of the full value of the decedent's life would

have over-compensated his siblings for their

financial loss (Pet. 82a), and instead confined

its award to an amount in compensation for the

civil rights violations suffered by the dece-

dent (Ibidem), and punitive damages.

To support her argument that Section 1983

itself compels the award of the full value of

the decedent's life, cross-petitioner cites

Carey v. Piphus, supra, Robertson v. Wegmann,

436 U.S. 584, 98 S.Ct. 1991 (1978), and Jones

v. Hildebrant, 191 Colo. 1, 550 P.2d 339, cert.

dismissed, 432 U.S. 183, overruled by

;

i

:

13

Espinoza v. O'Dell, 633 P.2d 455 (1981). None

of these decisions establishes a principle

which demonstrates that the pertinent rulings

of the courts below are in error. Carey, as

was ably pointed out by the trial court (Pet.

80a), does not require the incorporation of

state torts damages rules in the making of

awards in Section 1983 cases. 435 U.S. at 258,

98 S.Ct. at 1049. The ruling in Robertson was

confined to the issue whether a civil rights

action was abated by the plaintiff's death.

436 U.S. at 585, 98 S.Ct. at 1992. The

Hildebrant petition for certiorari was simply

dismissed as improvidently granted, and the

Colorado Supreme Court subsequently overruled

its prior decision to the extent it implied

that state wrongful death limitations must be

applied to a Section 1983 claim where the

children of the decedent allege a separate

deprivation of their liberty interest ina

continuing relationship with their father.

See, Espinoza, supra.

)

|

14

There is, in short, no binding precedent

of this Court determinative of this issue.

There is also no good reason why such precedent

should be established through this action. As

cross-petitioner has noted, the trial court's

ruling was given cursory approval by the three

judge panel (Pet. 98a n.8), and no discussion

at all by the en banc panel. There is no con-

flict among the circuit courts of appeal.}

Consideration of this issue before it is

thoroughly delineated by the Eleventh and other

circuits would be premature action by this

Court.

The cross-petitioner's second assignment

of error is the trial court's failure to recog-

nize and compensate a pendent state law claim

of wrongful death. This ruling did not result

from an erroneous interpretation of civil

1, In the decision cited by cross-petitioner,

Brazier v. Cherry, 293 F.2d 401, cert. denied,

368 U.S. 921 (1961), the Fifth Circuit held

only that in Georgia a decedent's claim for

damages sustained during his lifetime survived

his death, and that this rule would be applied

to Section 1983 actions.

15

rights law, however, but from the trial court's

careful review of the cross-petitioner's plead-

ings and determination that no cause of action

for wrongful death had been pleaded (Pet. 83a-

88a). No substantial federal question is

raised thereby. It is undoubtedly unique to

the facts of this case and unlikely to recur.

Both the initial three-judge panel, and the en

banc panel found it to be of insufficient sub-

stance to merit any discussion at all.

This is simply an issue of faulty plead-

ing, and an award carefully drawn so as to

prevent a windfall to heirs who had not

suffered a substantial economic loss.? No

substantial federal question has been raised or

given such thorough consideration by the

Eleventh or any other Court of Appeals as to

warrant the grant of certiorari to address the

question presented.

2. This consideration did not, of course,

prevent the trial court from awarding punitive

damages (Pet. 68a).

16

CONCLUSION

For the foregoing reasons, the petition

for a writ of certiorari should be denied.

Respectfully submitted,

City of Atlanta, Georgia,

R. C. Sampson, Lee P. Brown,

Maynard Jackson and George

Napper, Cross-Respondents

Marva Jones Brooks

City Attorney of

Atlanta, Georgia

By: Mary Carole Cooney*

Assistant City Attorney

George R. Ference

Associate City Attorney

1100 South Omni International

Atianta, Georgia 30335

(404) 658-1150

Attorneys for Cross-Respondents

*Counsel of Record