Opposition Brief — City of Borger v. Grandstaff

No. 85-1585 __

IN THE

Supreme Court of the United States

OCTOBER i'ERM, 1985

THE CITY OF BORGER, TEXAS; BORGER POLICE

OFFICER JOHN ROBERT ALONZO; BORGER

POLICE OFFICER JOHN WAYNE TURNER:

BORGER POLICE OFFICER BAILEY HAL

ROBERTS; AND BORGER POLICE

OFFICER JOHN RAY,

Petitioners

Vv.

SHARON GRANDSTAFF, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF JAMES

©. GRANDSTAFF, AND AS NEXT FRIEND OF

RANDY GLENN GATLIN, A MINOR; KAY

LaJUNE GRANDSTAFF, AS NEXT FRIEND

OF JO CHERYL GRANDSTAFF, A MINOR;

CHARLES ROBERT GATLIN;

AND J. H. GRANDSTAFF,

Respondents

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

CLINARD J. HANBY

HAYNES & FULLENWEIDER

4300 Scotland

Houston, Texas 77007

(713) 868-1111

Attorneys for Respondents

SSS «San a ES

Alpha Law Brief Co., Inc--5606 Parkersburg—Houston, Texas 77036—223-3003

2. 4 a." er”

I

TABLE OF CONTENTS

Page

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PE eas kV aber a edes case ocean e eee 2

REASONS A WRIT OF CERTIORARI SHOULD BE

En Se are Svs Sea Sa leo Pa Ra ERD) 6 de2 2

Bis Bee CF PIED civics cccccendsce cs

EE eee er eee re ries 3

CRM CUE Cie CUUIRED csc ches ccravesrevensves 21

II

TABLE OF AUTHORITIES

CASES Page

Kibbe v. City of Springfield, 777 F.2d 801 (1st Cir. 1985),

cert. granted, 54 US.L.W. 3594 (March 10, 1986) .... 17,19

Monell v. Department of Social Services, 436 US. 658

Cl) ) rE VeReer rer er 4

Oklahoma City v. Tuttle, <a _, 85 L.Ed.2d 791

(3968) oc ace sncoscsscotvnsemenaeae meee 4, 5,8, 16,17, 18,19

Pembaur v. City of Cincinnati, 54 U.S.L.W. 4289 (March

rar 5 ne er 4,18

_

IN THE

Supreme Court of the Muited States

OCTOBER TERM, 1985

THE CITY OF BORGER, TEXAS; BORGER POLICE

OFFICER JOHN ROBERT ALONZO: BORGER

POLICE OFFICER JOHN WAYNE TURNER;

BORGER POLICE OFFICER BAILEY HAL

ROBERTS: AND BORGER POLICE

OFFICER JOHN RAY,

Petitioners

7;

SHARON GRANDSTAFF, INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF JAMES

C. GRANDSTAFF, AND AS NEXT FRIEND OF

RANDY GLENN GATLIN. A MINOR: KAY

LaJUNE GRANDSTAFF. AS NEXT FRIEND

OF JO CHERYL GRANDSTAFF, A MINOR;

CHARLES ROBERT GATLIN;

AND J. H. GRANDSTAFF.,

Respondents

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

To The Honorable United States Supreme Court:

SHARON GRANDSTAFF, et al. file the following

Brief in Opposition to the Petition for a Writ of Certiorari

filed by THE CITY OF BORGER, TEXAS, et al.:

2

JURISDICTION

Respondents do not contest the jurisdiction of this

Court over this case.

REASONS A WRIT OF CERTIORARI

SHOULD BE DENIED

A. Statement of Facts:

The opinion of the Court of Appeals contains an

accurate synopsis of the facts of this case. 767 F.2d 161,

165. The statement of facts provided in the Petition for

a Writ of Certiorari is inaccurate in numerous particulars.

Some of the more glaring errors are as follows:

1. “The suspect fired on the officers .. .” (Pet. for

Cert. at 3): Actually, there was a serious dispute through-

out the trial concerning whether the suspect, Lonnie Cox.

ever fired a weapon. (See, e.g., R. 707, 1847, 1960-

1961): see Court of Appeals opinion, 767 F.2d at 171.

2. “One or more of the officers had seen a man exit

from the truck and move in a westerly direction toward

the point where shortly thereafter a second pickup truck

began to proceed down the caliche road toward the line

of Borger patrol cars .. .” (Pet. for Cert. at 4): This

is misleading. In fact. it was overwhelmingly established

at trial that the claim of some of the officers, particularly

Officer Turner, to have seen Lonnie Cox exit his pickup

and approach the second pickup was a pure fabrication

made in a desperate attempt to justify firing at the second

pickup. (See, e.g., R. 734-735).

3. “A single shot was fired, followed by a volley ot

shots from several officers, including but not limited to

3

the Borger police officers.” (Pet. for Cert. at 5): This

is false. There was no evidence whatsoever that anyone

other than a Borger police officer fired a shot in the

direction of James Grandstaff.

4. “The party later identified as James C. Grandstaft

did not comply with the officers’ instructions to get his

hands up and identify himself, but instead started making

movements around his waist area like he was going for

a pistol.” (/d.): This is partially misleading and

partially false. There was a vigorous dispute at trial

concerning whether any such warnings were given. (See,

e.g., R. 1382). In fact, the physical evidence was almost

conclusive that the attack by the Borger officers upon

James Grandstaff began while he was still in his truck.

Thus, at least four shots were fired at the truck from

short range as it moved slowly down the road. (R. 2365,

2382-2383, 2427). James Grandstaff was shot in the

back with a high-powered rifle shortly after he exited

his vehicle. (R. 315, 796). The bullet traveled in an

upward direction through the body parallel to the spine.

(R. 315). Thus, James Grandstaff was probably on his

hands and knees at the time he was shot. (R. 336-337).

Officer Ray’s contention that Jim Grandstaff was upright

and making movements as if to pull a weapon at the

time he was shot is simply another of the transparent

lies told by the Borger officers, and condoned by the

City, throughout the course of this litigation. Even one

of the other Borger officers contradicted his testimony.

(R. 1152).

Additional facts and references to the record will be

supplied with the argument.

B. Argument:

In Monell v. Department of Social Services, 436 U.S.

658 (1978) this Court established that a municipal gov-

ernment is a “person” within the meaning of § 1983.

Thus, a municipality can be sued where “the action that

is alleged to be unconstitutional implements or executes

a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that bodies’ offi-

cers.” Id. at 690. Furthermore, a municipality may be

sued for constitutional deprivations “visited pursuant to

governmental ‘custom’ even though such a custom has

not received fomal approval through the bodies’ official

decision-making channels.” /d. at 691.

In Oklahoma City v. Tuttle, __-U.S.____, 85 L.Ed.2d

791 (1985) this Court took what was described as a

“small but necessary step” toward clarification of the

meaning of the word “policy” in Monell. There, this

Court held that a single incident involving a single non-

policy making officer was insufficient to establish the

liability of the municipality under § 1983. 85 L.Ed.2d

at 804-805.

More recently, this Court has taken an aditional step

toward clarifying Monell. In Pembaur v. City of Cincin-

nati, 54 U.S.L.W. 4289 (March 25, 1986) this Court

has held that a single directive from a_ policy-making

officer is sometimes sufficient to establish the liability of

the municipality under § 1983. This Court went on to

clarify that: “The ‘official policy’ requirement was in-

tended to distinguish acts of the municipality from acts

of employees of the municipality, and thereby make clear

that municipal liability is limited to action for which

the municipality is actually responsible.” /d. at 4292

(emphasis in original).

5

In the present case, the Petitioners bring forward no

challenge to the instructions to the jury. Instead, they

bring forward only a question concerning the sufficiency

of the evidence. Thus, the true issue presented for review

is whether any rational trier of fact could conclude that

the tragedy involved in this case was caused by the acts

of the City of Borger itself. The evidence on this issue

was almost overwhelming.

The Recruitment and Training

Policies of the City of Borger’

Police officers for the City of Borger were hired by

a review board consisting of the assistant City Manager,

the Chief of Police and a police lieutenant. (R. 2486).

The board orally interviewed the applicants. (/d.) No

questions were customarily asked concerning the penal

code or law enforcement procedure. (R. 2486-2487).

No competency tests, personality tests, or psychological

examinations were administered. (R. 2487-2488). The

only stated requirement to be hired as a police officer

was either a high chool dipolma or one semester of

college. (R. 2490). However, one of the officers involved

in this incident was apparently not a high school graduate.

(R. 2524). An officer was not even required to obtain

1. In Oklahoma City v. Tuttle, supra, at n. 7, this Court reserved

the question of whether grossly negligent training of a single officer

could give rise to municipal lability. This record contains evidence of

grossly negligent recruiting, training, and supervision of the entire

police force. Furthermore, the evidence regarding recruitment, train-

ing, and supervision is only the first link in the chain that leads

inevitably to the conclusion that the death of Jim Grandstaff was the

fault of the City of Borger. The comparative fault issue, submitted

to the jury for purposes of the pendent state law claims, accurately

sets forth the position of Respondents: 1% the fault of James

Grandstaff; 3° the fault of each of the individual defendants: and

89% the fault of the City of Borger itself.

6

basic certification from the State until 12 months after

he was hired, (R. 2490). Thus, an applicant need not

have attended the police academy. (See Tex. Rev. Civ.

Stat. Ann. art. 4413(29aa), Sec. 6). Little or no effort

was made to determine the academic performance of

those applicants who had attended the academy. (R.

2495). The police applicants were asked basically the

same questions as the secretarial or even waste disposal

applicants. (R. 2493-2494).

The City Council had no policy requiring training

by the City of its officers. (R. 2510-2511). The council

did not require any periodic proficiency tests, written

or oral, of the officers. (R. 2511). No tests were re-

quired regarding knowledge of the penal code (R. 2266),

citizens’ rights (R. 2267), or arrest procedures. (R.

2511). No training was required in the use of police

equipment. (/d.}. No training was required on when it

was appropriate to resort to deadly force. (R. 2512).

in fact, no effort was even made to make the police

officers aware of any available courses in law enforce-

ment. (R. 2513). Full control of the police department

and the entire subject of police training was totally

delegated to the Chief of Police. (R. 2496-2508, 2511-

tata eaae)s

The training which the Chief, in fact, provided was

essentially non-existent. The officers on duty testified

that they had received no training whatsoever from the

City of Borger. (R. 605, 2068). Specifically, they had

received no instruction on when it was proper to use

deadly force. (R. 440, 1081, 2251, 2274). There was

no training in the use of weapons. (R. 676, 712, 2251).

There was no training whatsoever on high speed chases

or when to use a weapon during such a chase. (R. 1083,

7

2255, 2267). There was no training on how to handle

an arrest or when force could be used during an arrest.

(R. 1083, 2278).

The statements made by the officers on the witness

stand revealed incredible incompetence and gross dis-

regard for human life. Officer Roberts testified it was

proper to open fire if a person refused to get out of a

vehicle in response to a police order. (R. 516). Officer

Turner testified that it was perfectly proper to fire on a

suspect even though no weapon could be seen. (R. 826).

He stated that this was the policy of the City of Borger.

(/d.). Officer Ray saw nothing wrong with firing at a

suspect’s vehicle even though it was in front of a farm-

house. (R. 991). Officer Alonzo could find nothing

5

wrong with the use of gunfire in the presence of innocent

bystanders. (R. 2270).

The officers were unanimous in their testimony that

Borger’s only stated policy on the use of deadly force

was to “follow the penal code.” (R. 440, 964, 1086,

2068). This policy was promulgated by the Chief of

Police. (R. 2069). Thus, so long as their conduct fell

short of criminal responsibility, the officers were in

compliance with the stated policy of the City of Borger;

Borger required no stiffer standard. (R. 1090-1091).

Each of the officers further testified that all of their

conduct on August 11, 1981, comported with the policies

of the City of Borger. (R. 826, 963, 1081-1082, 1087,

2067; see R. 423, 442). There was absolutely no evidence

to the contrary.

Supervision Policies of the City of Borger

The on-duty Borger police force on the morning of

August 11, 1981. consisted of six officers. (R. 608).

a

8

Although some had previous law enforcement experience,

they were largely untested at Borger. The most senior

officer on duty had been on the force for eight months.

(R. 2053). One of the remaining officers had been on

the force for five months (R. 860), one for four months

(R. 604). two for two months (R. 388, 1102), and one

for two days (R. 676). It was the regular night off of

Lieutenant Poston, who was normally in charge of the

shift. (R. 1106). It was also the regular night off of

Officers Lemry and Krueger. who were normally the

senior officers on the shift. (R. 2053-2054). Further-

more, the City of Borger failed to take even the simple

step of designating one of the six rookie officers to be

in charge. Even this might have avoided the tragedy.”

The inevitable result of the policies of haphazard re-

cruiting. no training, and no supervision was a time bomb

waiting to explode. The bomb exploded on August 11,

1981.

Events of August 11, 1981

Petitioners, in an effort to bring this case within the

bounds of Oklahoma City v. Tuttle, supra, choose to

classify this case as involving a single “incident.” Tuttle

involved a single “incident” in the precise sense of the

word, The only conduct which could be faulted was a

single shot by a single officer. The present case cannot

be characterized as a single “incident.” Instead, there

were a series of episodes on the morning in question.

The conduct of the Borger officers during each of the

episodes was simply outrageous:

Davis said Alonzo was in charge. (R. 608, 614). Alonzo said

loavis was in charge. (R. 2054). Ray and Schultz did not know who

vas in charge. (R. 976, 1104). Roberts really did not know who

was in charge, but “guessed” that Davis was. (R. 530-531).

9

The Chase

The “incident” began when Officers Roberts, Turner

and Davis attempted to apprehend Lonnie Cox. (R. 409,

614). Cox was supposedly wanted for grand larceny in

Oklahoma, but the officers had no arrest warrant. (R.

1552-1553). The officers had also been advised that Cox

might have a kidnap victim with him. (R. 1563). Cox

refused to stop his vehicle and led the three officers on

a chase at speeds exceeding 90 miles per hour. (R. 416-

418). The three remaining Borger officers on duty joined

in the chase within the next few minutes. (R. 615, 1118,

2076).°

At some point in the chase, Roberts helped Turner

load an automatic rifle and instructed Turner to fire at

Cox. (R. 421). Turner did so. (R. 429). Davis directed

Ray, who was directly behind Cox to also fire at the

pickup. (R. 616, 899). Ray, a right-handed person, then

began shooting his .357 magnum with his left hand

while driving with his right hand. (R. 900). Each of

the officers admitted that he was unable to tell how

many people were in the truck they were pursuing. (R.

416, 728, 869). The officers believed that Cox might

have a kidnap victim with him. (R. 417, 728). Further-

more, there were numerous farmhouses in the area.

(R. 1581). Nevertheless, the officers did not attempt to

shoot a tire; they aimed for the cab of the truck, running

the risk of hitting the possible kidnap victim in the cab

3. Even if the gunfire is disregarded, the manner in which the

chase was conducted itself displayed a reckless disregard for human

life. For no apparent reason, Roberts chose to drive in excess of

90 miles per hour on the wrong side of a divided highway in the

dark. (R. 418)

1. As noted earlier, there was a dispute at trial concerning whether

(ox fired first

10

or other innocent parties further down the highway.

(R. 726-728). At the time, none of the officers gave

any thought to the risk. (R. 442, 727-728; see R. 616,

903).

Thus, the Borger officers displayed reckless disregard

for human life throughout the chase. There was evidence

trom which the jury could infer that the Chief of Police

was listening to all of this on the radio. (R. 1212, 1229,

1254. 2055). He gave the officers no instructions.

Events on the Ranch Prior to the Shooting

Cox was eventually shot in the back: he drove off of

the highway, crashed through a fence, and brought his

truck to a stop within approximately 100 feet of the

house where the Grandstaffs lived. (R. 435-436, 1716-

1717: see PX-8A). The Borger officers continued their

pursuit and, despite the farmhouse which was plainly

visible directly behind the truck, again opened fire at

the Cox truck. (R. 459). One of the officer's bullets

actually hit the Grandstaff home. (R. 2325). The bullet

penetrated the exterior wall of the living room and

traveled toward the bedrooms. (R. 266). Sleeping in

the bedrooms were a man, a woman, and three children.

(R. 223-224). A scientific analysis of the bullet path

showed that it had been fired from a distance of at most

75 feet. (R. 2374).’ The total disregard for human life

continued; the proximity of the scene to the farmhouse

was broadcast on the radio (R. 1580); the Chief of

Police still gave no instructions.

The bullet in question was of a somewhat unusual caliber 41

(R. 2325). Officer Roberts was the only one on the scene who had

1 weapon capable of firing that bullet. (R. 456, 1912). In yet another

incredible lie by the Borger officers, Roberts denied firing the weapon

in question. (R. 455)

11

The Shooting Itself

At some point in this rain of gunfire, Cox had managed

to get out of his truck and escape. (R. 447). Cox ap-

parently left the truck out of gear, and it rolled back-

wards and to the east, coming to rest near a fence some

400 to 500 feet from the house. (R. 460; PX-8A).

Officers Roberts and Alonzo went to investigate the

truck. (R. 488, 2105). It was apparent from the bullet-

hole in the driver's seat and the blood all over the truck that

Cox had been hit and was seriously wounded. (R. 494).

Roberts and Alonzo had a walkie-talkie available to

broadcast this fact to the other four officers, but ap-

parently did not do so. (See R. 505-506).

At approximately this point, James Grandstaff left his

house; he stated that he was going to help the police.

(R. 230). He drove his pickup truck slowly down the

road toward the police cars. (R. 231). Although it was

apparent that the driver of the second pickup was prob-

ably not Lonnie Cox (R. 1221, 1223, 1603),° either

Alonzo or Roberts or both opened fire on the second

pickup as it went slowly past them in the direction of

the other officers. (R. 2382-2383, 2427). James Grand-

staff. who, perhaps. believed that the fugitive was firing

at him, drove his truck off the road to the opposite side

of the police cars from the source of the gunfire. (R.

1371, 1373). As James Grandstaff got out of his truck,

Officers Ray and Turner also opened fire at him. (R.

790, 792, 1005). James Grandstaff probably crouched

on the ground behind the door of his truck to avoid this

gunfire. (R. 336-337, 2395). In the meantime, Officer

6. The dispatch log indicates that the following was broadcast

on the radio: “Car coming out from house. Don’t know if it will

be people.” Still no instructions from the Chief.

12

Alonzo apparently crossed to the other side of the road,

crept up behind James Grandstaff, and shot him in the

back from a range of 20 to 30 feet. (R. 2391-2392).

The Mythical “Warning” Shot

Deputy Morris of the Hutchison County Sheriff's De-

partment arrived on the scene very shortly after the

shooting. He testified that he heard a single shot as he

was turning onto the road. (R. 1585). Morris did not

hear the earlier volley of shots, and it seems likely that

this final, isolated shot was the one that killed James

Grandstaff. At trial. five of the six Borger officers offered

an explanation of this shot. They testified that Officer

Davis fired a “warning shot” into the ground next to

James Grandstaff before the officers handcuffed him.

(R. 538, 626, 800, 1042, 2211). It is highly unlikely

that any such shot was fired. The statements given by

Turner, Ray and Alonzo immediately after the shooting

do not mention such a shot. (R. 801, 1042, 2212).

Alonzo’s deposition does not mention any such shot.

(R. 2215). One of the Borger officers, Schultz, denied

at trial that any such shot was fired. (R. 1160). Deputy

Hart of the Carson County Sheriffs Department who had

also arrived on the scene by this time denied that any

such shot was fired. (R. 1395). A later search of the

area with a metal detector did not reveal a buried slug.

(R. 2347). The jury was free to interpret the motives

of the five officers who intentionally invented this grue-

some story of firing a “warning” shot into the ground

next to a man who was flat on his face bleeding to death.

The Immediate Aftermath of the Shooting

When the gunfire had ceased, all of the Borger officers

approached the Grandstaff truck. (R. 526, 624, 797,

13

1033, 1148, 1388, 1600). They found a man lying on

his stomach with a bullet wound in his back groaning

in obvious pain. (R. 532, 624, 1047). One of the officers

testified that James Grandstaff immediately informed them

that they had shot the wrong man. (R. 804). Neverthe-

less, Officer Roberts, who weighed 330 pounds, sat on

top of the man and handcuffed his hands behind him.

(R. 1039). The officers then dragged him up to the

front of his truck. (R. 547).

James Grandstaff was left there with his hands cuffed

behind him and his face in the dirt. (R. 557). He tried

to get up on several occasions and stated that he wanted

to go home. (R. 570, 627, 2235-2236). A law enforce-

ment officer from another jurisdiction who arrived on

the scene perhaps five minutes after the shooting testified

that he twice saw Borger Officer Davis place his foot

on the side of James Grandstaff’s face and shove it back

into the dirt. (R. 1516-1519). None of the other Borger

officers took any steps to prevent this. Eventually, all

of the Borger officers admittedly knew that they had shot

the wrong man. (R. 564-565, 627, 1058-1059, 1401,

2234). Nevertheless, James Grandstaff remained hand-

cuffed until he bled to death. (R. 311-312).

The Surrender of Cox

Later that morning, Lonnie Cox voluntarily surren-

dered. (R. 582). He was unarmed and seriously wounded.

(R. 583). There was evidence in the record showing that

he was also mistreated by the Borger police after he

surrendered. (R. 584-585: PX-100).

The Cover-Up

As the trial progressed, it became increasingly obvious

that, before the scene was investigated, someone tampered

14

with the evidence in an effort to corroborate the stories

told by the Borger officers and justify their conduct:

fg

trial about the latter cartridge:

The bullet hulls near where the Cox truck first came

to a stop: The scene investigator found 15 spent rifle

cartridges in the pasture to the east of the road and

approximately 778 feet from the highway. (R. 1710-

1711). Skid marks (which, presumably, marked the

point where Cox stopped the truck for the first time)

were found in the grass about a car length west of

the cartridge cases. (R. 1716-1717). Superficially,

these cartridges seem to substantiate the conten-

tion of the Borger officers that Cox had fired at

them after he exited from his truck. (See, e.g., R.

447). A ballistics expert verified that 14 of these

15 cartridges had, indeed, been fired from the

weapon originally possessed by Cox, but later

confiscated by Alonzo. (R. 2318). However, one

of the 15 cartridges had been fired from a weapon

owned by Officer Roberts which had never been

in the possession of Lonnie Cox. (/d).’ There were

other considerations which make it self-evident that

the 15 cartridges in question were “supplied” to

the scene. The officers uniformly testified that Cox

ran to the west when he exited his truck. (R. 451-

Ranger Gillespie made the following confused comments at

Now whether they was mixed up in packaging. I have wondered

how that got up there. But at a scene like that, when you have

got people wandering around, somebody's liable to pick some-

thing up, wander around, look down, whoops, I’ve got that in

my hand, I’m going to throw it down.

There is no way ... 1 don't understand what that was doing

up there.

. 2024).

15

454, 620, 737, 940). The spent cartridges were

found a car length east of the skid marks. (R.

1716-1717). Thus, the officers’ testimony required

that the spent cartridges from the weapon in ques-

tion eject 15 or 20 feet to the right with the truck

in the way. The weapon in question does not eject

that far. (R. 2385). Furthermore, the truck was

found completely enclosed with the weapon inside.

(R. 502). Thus, in order to substantiate the offi-

cers’ story, Cox would had to have exited the

truck, fired his weapon 15 times, thrown the

weapon back into the cab of the truck, and shut

the door, all before the truck rolled back down the

hill. These considerations, together with the cart-

ridge from the wrong weapon, make it certain that

the fifteen spent cartridges were planted.

The spent cartridges in the truck. Two spent cart-

ridges from the same weapon were found inside

the Cox truck. (R. 2319-2320). Superficially,

these cartridges substantiated the officers’ testimony

that Cox fired at them from the truck during the

chase. However, Cox would have had to hold his

rifle upside down to have fired from his window

and left those cartridges. (R. 1960). The hot

cartridges would have come back in his face.

(R. 1961). These two cartridges were also “sup-

plied” to the scene.

The dispatch tape: This would have documented

exactly what was said over the radio during the

events in question and proved or disproved the

exact extent to which the Chief of Police was

himself a participant. The recorder allegedly mal-

functioned that night. (R. 1187). The tape record-

16

ing in question mysteriously disappeared. (R.

1195).

There was evidence at trial which strongly suggested that

the person who manipulated the evidence was the Chiet

of Police himself. (R. 2248). The City rested without

presenting any defense and did “ot call the Chief as a

witness.

The Reaction of the City of Borger

It was obvious on August 12, 1981, that a man was

dead without justification, that a Borger officer had shot

him, and that the statements given by the Borger officers

could not be reconciled with the autopsy or other physical

evidence. Nevertheless, none of the officers involved in

the incident was ever reprimanded or punished in any

way. (R. 832). The Chief of Police did not even criti-

cize their conduct. (R. 1079, 2260). Indeed, each of the

officers involved received a raise shortly after the incident.

(R. 2500).

Analysis

Petitioners rely primarily on Oklahoma City v. Tuttle,

supra. The only similarity between the present case and

Tuttle is that the police killed someone. The dissimilarities

between the two cases can be readily listed:

1. Tuttle involved a single police officer. The fact that

a single officer acted in a certain manner is cer-

tainly insufficient to support any inference that the

policymakers condoned, approved. or encouraged

his conduct. If several officers on a large police

force behave in an unreasonable manner, the ques-

tion of whether the trier of fact can thereby infer

tw

17

that the policymakers approved of the conduct

becomes closer. This Court has recently granted

review in a Case presenting that issue. Kibbe v.

City of Springfield, 777 F.2d 801 (ist Cir. 1985),

cert. granted, 54 U.S.L.W. 3594 (March 10. 1986).

The present case is at the far end of the same

spectrum. When ail of the officers who are on duty

behave in the same outrageous manner. the infer-

ence that the policymakers condoned, approved,

or encouraged that type of conduct becomes al-

most compelling.

Tuttle involved a single incident in the precise sense

of the word. The only conduct of which complaini

could be made was a single gunshot. A single shot

can be fired in a moment of panic or a moment of

anger. A single shot does not begin to support any

inference that a policymaker condoned, approved,

or encouraged it. Once again, the Kibbe case falls

in the middle of the spectrum. There, the record

shows five to ten shots by at least three different

officers that a reasonably competent police officer

would not have fired. Possibly. this supports an

inference that the policymakers approved. Again,

this case lies at the far end of the spectrum. This

record shows an uncounted number of shots fired

in a manner which displayed a total disregard for

the lives of innocent bystanders. There were the

numerous shots fired from speeding police vehicles

in a populated area during the chase. There were

numerous shots fired in the direction of a farm-

house at the scene. Finally, there was the rain of

gunfire that killed James Grandstaff. The officer

in Tuttle and the officers in Kibbe fired with pistols.

18

Some of the present officers fired pistols, but three

fired high-powered automatic rifles, virtual machine

guns. These weapons were not fired into the ground;

they were capable of killing unknown people miles

away. Furthermore, the outrageous behavior in

this case was not limited to gunfire. There can be

no justification for the manner in which James

Grandstaff was treated after he was shot. Officer

Davis’ conduct of twice putting his foot in the face

of a dying man and shoving it back into the dirt

can only be described as sadistic. None of the other

officers intervened. In short, this record reveals

infinitely more than the sudden act of panic or

anger revealed by the record in Tuttle. Thus, there

is a much stronger inference that the policymakers

approved of such conduct.

In Tuttle there was absolutely no evidence that

any policymaker was aware of the tragedy as it

occurred. In the present case, the record strongly

suggests that one of the policymakers, Chief of

Police Arthur Waite, was aware of the gunfire along

the highway and was aware that his officers were fir-

ing weapons in the vicinity of a farmhouse. Neverthe-

less, he did not call off the chase or give any instruc-

tions whatsoever to the officers. This Court has

recently decided in Pembaur v. City of Cincinnati,

supra, that a single order from a policymaker can

constitute policy. Likewise, when a_ policymaker

perceives an outrage developing and fails to take

steps to prevent it, this is additional strong evidence

to support a finding of municipal liability.

The Tuttle case involved no evidence that the

policymakers had condoned the conduct of the

19

officer after the fact. Indeed, such evidence would

have been of little relevance because the jury found

the officer to have acted in good faith and ex-

onerated him. Here, the officers committed an

absolute outrage and proceeded to give statements

concerning their conduct which could be exposed

as baldfaced lies by even a cursory examination

of the physical evidence. Not a single officer was

terminated, suspended, or even reprimanded. The

Chief of Police did not even criticize their conduct.

Every officer involved was given a raise less than

two months after the outrage. Worse still, one of

the policymakers apparently attempted to manipu-

late the evidence to justify the conduct of the

officers. The fact that the policymakers reacted

in this manner in the face of a series of incidents

of the magnitude revealed in this record strongly

supports the inference that this was and had always

been their policy.

There was no testimony in Tuttle from the officer

involved concerning his understanding of the city

policies. In the present case, each of the officers

involved testified that a// of their conduct on the

morning in question was in accordance with city

policy. The City of Borger called no witnesses to

dispute this testimony. Non-policymaking employees

cannot make policy, but surely they are competent

to testify what the policy is.

Finally, in Tuttle this Court expressly reserved

ruling on the question of whether grossly negligent

training of a single officer was a sufficient basis

for municipal liability. The Kibbe case involves

a question of gross negligence in training the

20

police, and this Court will, perhaps, resolve the

issue there. The present record contains evidence

revealing grossly negligent recruiting, training, and

supervision of the entire police force. This case

does not present the question of whether such evi-

dence could alone support municipal liability. Peti-

tioners have not preserved or brought forward such

a contention. Nevertheless, this evidence certainly

adds further weight to the inference that the policy-

makers approved and encouraged outrageous be-

havior by the police.

Conclusions

This case does not present a close question. The evi-

dence that the City of Borger itself was at fault is over-

whelming. Furthermore, the facts and circumstances of

this case are so unique that a review by this Court is

unlikely to set any meaningful precedent. The record

fully justifies the statements of Judge Reavley for the

Court of Appeals:

Our reading of this long trial rec@td reveals how

oflicers and a city police force failed, at great cost,

and how those officers and their supervisors there-

after denied their failures and concerned themselves

only with unworthy, if not despicable. means to

avoid liability. The City and officers insist, to this

day, that they are free of fault and deserve no blame.

They display no sense of obligation other than to

this joint disclaimer and defense. There is not a

single word in this record about any effort at any

time by the City of Borger to avoid police failure

or abuse. The officers, called to the witness stand

by the plaintiffs, were evasive and forgetful and self-

contradictory. The scene at the 6666 Ranch that

21

dark night in 1981 was distressing; succeeding

events, the scene of this trial, and the posture of

the defense only exacerbate the distress.

767 F.2d at 166. Likewise, a review by this Court would

serve no useful purpose; it would only serve to extend the

tragedy. The Petition for Certiorari should be denied.

Respectfully submitted,

HAYNES & FULLENWEIDER

A Professional Corporation

CLINARD J. HANBY

State Bar +O8880500

4300 Scotland

Houston, Texas 77007

(713) 868-1111

Attorneys for Respondents

CERTIFICATE OF SERVICE

This is to certify that a true and correct, copy of the

above and foregoing Brief in Opposition to Petition for

Writ of Certiorari has been served by

to . on this ______ day of April, 1986.