Opposition Brief — Dent v. City of Dallas

NO. 87-1333 | ~/

In The

Supreme Court Of The United States

OCTOBER TERM, 1987 ©

KATHY DENT, Individuaily and on Behalf of ANDREW DENT,

a Minor, and as Independent Executrix of the Estate of

GENE GILBERT DENT, Deceased,

Petitioner,

Us

THE City OF DALLAS, TEXAS,

FRANK REED, and LARRY EDDINGTON,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

TEXAS COURT OF APPEALS FOR THE FIFTH

JUDICIAL DISTRICT OF TEXAS IN DALLAS

RESPONDENTS’ REPLY

CARROLL R. GRAHAM

COUNSEL OF RECORD

CRAIG HOPKINS

ASSISTANT CITY ATTORNEY

City ATTORNEY’S OFFICE

1500 Marilla Street

7B North City Hall

Dallas, Texas 75201

214/670-3510

Attorneys For Repondents

TABLE OF CONTENTS

PAMLE OF CONTENTS ............-......02..ccecace

TABLE OF AUTHORITIES ..................0..0000: i

STATEMENT OF THE CASE ..............000ee00e- 1

ARGUMENTS SUPPORTING DENIAL

ees ke cel 2

ee mihudhewea ch 7

TABLE OF AUTHORITIES

Cases: Page:

Baker vo. MeGolian, 448 USS: WBF ais oho hh oa 2

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

808, 85 L.Ed.2d 791, 105 S.Ct. 2427,

webs; Ges Gir Wide Ue 6 he eke 5as cts cncradeascass 2

Daniels v. Williams, 474 U.S. 327,

OO TR re te ka ko cece s ca waren oe8s 5

Hays v. Jefferson County, 668 F.2d 869, 872

(6th Circuit, 1982), cert. denied 459 U.S. 833 ........ 5

Hull v. City of Duncanville,

GTO FG GRR Ca GC, BD gc wk ek need nseccccnss 2

Jackson v. City of Joliet, 715 F.2d 1200

(7th Circuit, 1983), cert. denied

465 U.S. 1049, 104 S.Ct. 1825 (1984) ................ 2

Martinez v. The State of California, 444 U.S. 277,

283 (1980), reh. denied 495 U.S. 920 ................ 2

Merchant v. City of Little Rock, 741 F.2d 201, 205 _

Cas Cee Se ies bkaxavk ocak banGnasnae BiG kataice 5

Pembauer v. Cincinnati.

ry: Bae Smee FP Fe ee rr 5

Rizzo v. Goode, 423 U.S. 362, 370 (1976) ............... 5

il

STATEMENT OF THE CASE

Petitioner’s statement of the case is essentially correct, but

incomplete. Notably absent is a description of the actions of

the Dallas Police officer upon which Petitioner bases her

entire case.

Officer Reed stopped a vehicle driven by Allen Davis

because Davis was a suspected felon. Officer Reed got out of

his patrol car and instructed Davis to pull his vehicle on to

the side of the road. As Officer Reed returned to the patrol

car, Davis sped away. A high speed chase involving additional

patrol cars ensued, and Davis ran a stop sign striking the

vehicle driven by Petitioner’s husband. Petitioner’s only

claim is that because Officer Reed’s vehicle was equipped

with a public address system, he should have used it in his

attempt to apprehend Davis. From these facts Petitioner

alleges that the City of Dallas has an official policy tanta-

mount to negligence.

ARGUMENTS SUPPORTING

DENIAL OF THE WRIT

THE TRIAL COURT, TEXAS COURT OF

APPEALS, AND TEXAS SUPREME COURT

CORRECTLY RULED THAT PETITIONERS

FAILED TO PROVE A CAUSE OF ACTION

UNDER 42 U.S.C. §1983.

This Court has repeatedly held that Plaintiffs who obtain

a judgment under traditional tort principles are not normally

entitled to a civil rights recovery. Baker v. McCollan, 443 U.S.

137; Martinez v. The State of California, 444 U.S. 277, 283

(1980), reh. denied 445 U.S. 920; Hull v. City of Duncanville,

678 F.2d 582 (5th Circuit, 1982); Jackson v. City of Joliet, 715

F.2d 1200 (7th Circuit, 1983), cert. denied 465 U.S. 1049, 104

S.Ct. 1325 (1984). Yet, Petitioner would have this Honorable

Court rule that the general policy of the City of Dallas to

have police officers arrest and pursue felons is a policy tanta-

mount to negligence, entitling her to a civil rights recovery.

Although there was no evidence to support their finding,

the jury found that a police officer was negligent in this case.

They also found, reasonably, that the City of Dailas has a

policy of arresting and pursuing felons, and that the officer

was attempting to carry out those policies. The jury did not

find that the negligent conduct of the police officer was

required by the policy of the City. The jury merely found that

the officer was implementing the broad policies of the City by

attempting to arrest a suspected felon, and pursuing him

when he fled. The fact that the officer may have been negli-

gent on this single occasion does not prove a municipal policy

of negligence.

It is well established by this Court that an isolated incident

of negligence or excessive force is not sufficient to raise a

2

cause of action under 42 U.S.C. §1983. City of Oklahoma City

us. Tuttle, 471 U.S. 808, 85 L.Ed.2d 791, 105 S.Ct. 2427, reh.

denied 473 U.S. 925. In Tuttle, this Court clearly identified

the pitfalls of asserting that a municipal policy gives rise to a

§1983 cause of action:

. some limitation must be placed on establishing

municipal liability through policies that are not them-

selves unconstitutional, 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 almost any such harm

inflicted by a municipal official; for example, Rotramel

would never have killed Tuttle if Oklahoma City did not

have a ‘policy’ 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 be an affirmative link between the policy and

the particular constitutional violation alleged. Jd. at 471

U.S. 823, 85 L.Ed2d 804. —

This Court’s caveat in Tuttle to avoid stretching a policy to

countenance a remote event is ignored by Petitioner. Peti-

tioner asserts that because the City of Dallas has a policy of

arresting and pursuing felons, any negligent conduct by an

officer in implementing those procedures is itself a policy of

the City.

Petitioner’s attempt to base her contentions on the hold-

ings in Monell ignores the obvious distinctions between the

two cases. As the Court stated in Tuttle:

The “policy” of the New York City Visaictiiadt of

Social Services that was challenged in Monell was a pol-

icy that by its terms compelled pregnant employees to

take mandatory leaves of absence before such leaves

3

were required for medical reasons; this pulicy in and of

itself violated the constitutional rights of pregnant

employees by reason of our decision in Cleveland Board

of Education v. LaFleur, 414 U.S. 632, 39 L.Ed.2d 52, 94

S.Ct. 791, 67 Ohio Ops2d 126 (1974). Obviously, it

requires only one application of a policy such as this to

satisfy fully Monell’s requirement that a municipal cor-

poration be held liable only for constitutional violations

resulting from the municipality’s official policy... To

establish the constitutional violation in Monell, no

evidence was needed other than a statement of the policy

by the municipal corporation, and its exercise; ...

Tuttle at 471 U.S. 822, 85 L.Ed.2d 803.

Petitioner has not identified any policy of the City of Dal-

las which, on its face, is negligent, nor were there jury find-

ings to that effect. In fact, the City of Dallas’ pursuit policies

were examined in great detail by Petitioner’s experts.

Although Petitioner criticized some of the wording of the

City’s policies, she did not question or challenge the basic due

care requirement contained in the City’s policies. (Statement

of Facts pages 357-360, 850). The Center for Police Develop-

ment at Southern Methodist University conducted a three

year study of the City’s pursuit activities and noted that

there were no serious disabling injuries or deaths resulting

therefrom. (Statement of Facts pages 1218-1303). Petitioner

has failed to show any pattern of civil rights violations on the

part of the City of Dallas Police Department. To the con-

trary, the City of Dallas’ safety figures were superior to any

of the national statistics presented by the Petitioner. (State-

ment of Facts pages 651-655)

Also mitigating against Petitioner’s assertion of a civil

rights cause of action is the jury’s answer to Special Issue

4

Number 8. The jury did not find negligence in the training of

the police officers, and Petitioner failed to obtain any find-

ings suggesting that improper or insufficient training had a

causal relationship to a deprivation of constitutional rights,

as is required by current law. Rizzo v. Goode, 423 U.S. 362, 370

(1976); Hays v. Jefferson County, 668 F.2d 869, 872 (6th

Circuit, 1982), cert. denied 459 U.S. 833; Merchant v. City of

Little Rock, 741 F.2d 201, 205 (8th Circuit, 1984).

This Court has recently considered the question of deter-

mining when tortious conduct by state officials rises to the

level of a constitutional tort:

... lack of due care suggests no more than a failure to

measure up to the conduct of a reasonable person. To

hold that injury caused by such conduct is a deprivation

within the meaning of the Fourteenth Amendment

would trivialize the centuries-old principle of due pro-

cess of law . .. Our Constitution deals with the large con-

cerns of the governors and the governed, but it does not

purport to supplant traditional tort law in laying down

rules of conduct to regulate liability for injuries that

attend living together in society ... Where a government

official’s act causing injury to life, liberty or property is

merely negligent, no procedure for compensation is con-

stitutionally required. . .

Daniels v. Williams, 474 U.S. 327, 88 L.Ed.2d 662 (1986).

Petitioner alleges that the principles espoused in Daniels

are inapplicable to the instant case. However, Petitioner fails

to consider the last sentence quoted above which obviously

addresses the situation involved here.

Petitioner’s reliance on Pembauer v. Cincinnati, 475 U.S.

—., 89 L.Ed.2d 452 (1986), “and not Daniels” is perplexing

because the two cases are consistent in holding that there is

5

a distinction between policies of a municipality and merely

negligent acts of municipal employees who are attempting to

carry out those policies. Pembauer is also consistent with the

holding in Tuttle:

The conclusion that tortious conduct, to be the basis

for municipal liability under §1983, must be pursuant to

a municipality’s “official policy” is contained in this dis-

cussion. The “official policy” requirement was intended

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. [footnote omitted]

Monell reasoned that recovery from a municipality is

limited to acts that are, properly speaking, acts “of the

municipality”-that is, acts which the municipality has

officially sanctioned or ordered.

Pembuuer at 89 L.Ed.2d 463.

Even assuming that Officer Reed was negligent, Peti-

tioner has failed to prove that the City of Dallas has an

unconstitutional policy regarding the arrest and pursuit of

suspected felons.

~-

CONCLUSION

Clearly, the District Court, the Texas Court of Appeals,

and the Supreme Court of Texas correctly followed the prin-

ciples espoused by this Court, and correctly held that the

facts alleged by Petitioner do not suppert a cause of action

under 42 U.S.C. §1983.

Respectfully submitted,

OFFICE OF THE CITY ATTORNEY

“ITY OF DALLAS, TEXAS

CARROLL R. GRAHAM

Assistant City Attorney, and

Counsel of Record

CRAIG HOPKINS

Assistant City Attorney

City Hall 7BN

1500 Marilla Street

Dallas, Texas 75201

(214) 670-3510

CARROLL R. GRAHAM

Counsel of Record

for Repondents

State Bar of Texas

No. 08257000

ee » Dy

CRAIG PKIN

Assistant City Attorney

State Bar of Texas

No. 09972050

B