Opposition Brief — Rodriguez v. City of Brownsville

| me Preeie UUUIT, U.S. -

FILED

AUG 31 1989

7 JOSEPH F. SPANIOL, JR

No. 89-181 CLERK L, JR,

—_———

— Se

In The

Supreme Court of the United States

October Term, 1989

EUGENIA RODRIGUEZ, Individually and

as Next Friend of Alberto Torres,

Petitioner,

ROBERTO AVITIA, et al,

CITY OF BROWNSVILLE, TEXAS,

Respondent.

— “

4

On Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

—

al

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Ly

ww

James E. BELTON*

Gomez & BELTON

700 Paredes Line Ra.,

Suite 105

Brownsville, Texas 78521

(512) 544-1082

Counsel for Respondent

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO, (800) 22546964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Se Oe NE Si cer sbaiees ASW ORE es ii

ON Ee os Sones des seb eSae ee 2

Reasons for Denying the Writ ...............+-0+ 3

Seen bck O, BASS pr Oe oes geen ea eee 12

ii

TABLE OF AUTHORITIES

Page

CASES

Addickes uv. S.H. Kress & Company, 398 U.S. 144, 90

S.Ct. 1596, 26 L.Ed 2d BAZ CISVUE 5 ces ccsscencnuas- 4

Bennett v. Slidell, 735 F.2d 861 (5th Cir. 1984) per

curiam modifying 728 F.2d 762 (1984)(en banc)

cert. denied. 472 U.S. 1016, 105 S.Ct. 3476, 87

L.Ed.2d 612 (1985)...... pa dee dames ee eee 7

Berry v. McLemore, 670 F.2d 30 (5th Cir. 1982) ........ 7

City of Canton, Ohio v. Harris, __ US. __, 109

S.Ct. 1197, 103 L.3.28 412 (96s)... passim

City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S.Ct.

242/, GS L.Ed.2d 79) (iGRS) «<5 5 des eee ee eee eee passim

City of Springfield v. Kibbe, 480 U.S. 257, 107 S.Ct.

1114, 94 L.Ed. 26 293 (1967)... ccc vc uc cuccens a, 6, 7, 27

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d

OD CEG) oa oo can os 0:90 Minin a 10

Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985)......... 10

Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.

1985) reh. denied 779 F.2d 1129 (1986)(en banc),

cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94

ew es +s ere re i ne 7, 10

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

cert. denied, 467 U.S. 1215, 104 S.Ct. 2656, 81

ee | rr er ke passim

Monell v. Department of Sociai Services, 436 U.S. 658,

96 S.Ct. 2018, 56 L-Ed.2d 611 (1976). .......... passim

Palmer v. City of San Antonio, Texas, 810 F.2d 514

Cre Clie; FOG). ow een eyo ee eee 7, 10

lil

TABLE OF AUTHORITIES - Continued

Page

Webster v. City of Houston, 735 F.2d 838 (Sth Cir.

1984) (en banc), rev’d on other grounds 739 F.2d

Seo ton Gir, 1964) fen banc)..................0005: 7

CONSTITUTION, STATUTES, AND RULES:

oe te. BIPeS......... Wee bewecesens 2, 5, 6, 7,4, 1%

Semmens, Wes WR. AY: Pow. eee eee 2

mule 17, U.S. Sup. Ct. Rules.....................-:. 10

No. 89-181

a

bf

In The

Supreme Court of the United States

October Term, 1989

A,

4

EUGENIA RODRIGUEZ, Individually and

as Next Friend of Alberto Torres,

Petitioner,

ROBERTO AVITIA, et al,

CITY OF BROWNSVILLE, TEXAS,

Respondent.

a

vv

On Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

y

—

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

a

—

Respondent, the City of Brownsville, Texas,

respectfully submits this Brief in Opposition to the Peti-

tion for Writ of Certiorari filed by Petitioner Eugenia

Rodriguez, Individually and as Next Friend of Alberto

Torres, seeking review of the judgment and opinion of the

United States Court of Appeals for the Fifth Circuit ren-

dered on May 1, 1989.

>

n

STATEMENT OF THE CASE

This case is an action under 42 U.S.C. §1983 seeking

to impose liability on the Respondent, a municipality,

based on a custom of grossly inadequate police training.

This action arises out of a single shooting incident that

occuried on August 29, 1980 in which Petitioner’s son,

Alberto Torres, was wounded by a single shot fired by

Brownsville Police Officer, Robert Avitia.

At a hearing held in the trial court at which leave

was granted to Petitioner to file her Second Amended

“Complaint pleading grossly inadequate training as her

new theory of recovery against Respondent city, the Peti-

tioner conceded that the claim was “basically one officer

and one situation, one incident,” and that as to other

incidents Petitioner had nothing to add. (Pet. A, 6a-7a

and 13a-14a). The Petitioner had earlier dismissed Officer

Avitia from this action as “uninsured and unnecessary.”

(Pet. A, 6a, N.2, and 14a)

The trial Court, in granting Respondent’s Motion to

Dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil

Procedure, first concluded that Petitioner’s allegation in

the Second Amended Complaint failed to sufficiently

plead an officially adopted or promulgated municipal

policy. (Pet. A, 14a-15a). Regarding the theory of showing

a custom of inadequate training, through persistent and

widespread practices of police misconduct, the Court

concluded that Petitioner pled no such facts and that

Petitioner had conceded that she had no evidence of

similar incidents of police misconduct resulting from

inadequate training in order to plead the same. (Pet. A,

15a-16a). On appeal, the Fifth Circuit Court of Appeals

considered the sole issue of whether Petitioner had ade-

quately pled a custom or practice of grossly inadequate

police training. The Court of Appeals held that the trial

court properly dismissed the complaint and affirmed the

trial court’s order. (Pet. A, la-8a). In arriving at its opin-

ion, the Court of Appeals applied Monell v. Department of

Social Services, 463 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611

(1978); City of Oklahoma v. Tuttle, 471 U.S. 808, 105 S.Ct.

2427, 85 L.E.2d 791 (1985); and Languirand v. Hayden, 717

F.2d 220 (5th Cir. 1983) cert. denied, 467 U.S. 1215, 104 S.Ct.

2656, 81 L.Ed.2d 363 (1984). The lower court also cites and

discusses City of Springfield v. Kibbe, 480 U.S. 257, 107 S.Ct.

1114, 94 L.E.2d 293 (1987) and City of Canton, Ohio v.

Harris, __ U.S. ___, 109 S.Ct. 1197, 103 L.E.2d 412 (1989)

in response to Petitioner’s theory for recoveiy as argued

before said Court.

Anse

v

REASONS FOR DENYING THE WRIT

I.

OPPOSITION TO QUESTIONS

PRESENTED FOR REVIEW

Petitioner attacks the Court of Appeals judgment first

asseiting that in deciding her case both the trial court and

Court of Appeals misconstrued and misapplied the “sin-

gle incident” rule established in City of Oklahoma v. Tuttle,

supra. Second, Petitioner argues that a §1983 cause of

action for deliberate indifference for failure to train police

officers can now be carved out of Petitioner’s Second

Amended Complaint, which would allow the application

of the rules announced in City of Canton, Ohio v. Harris,

supra, and which opinion allows a policy of inadequate

police training to be referred from the conduct of several

officers during a single incident absent evidence of prior

acts or similar incidents of police misconduct. (Pet., [i] -

questions presented)

[t is important to stress at the outset that the §1983

claim upon which Petitioner has relied in the trial court

and the Court of Appeals is a custom of grossly inade-

quate (grossly negligent) police training in handling and

subduing armed and emotionally distraught individuals,

such as the Petitioner’s son. (Pet. A, 2a-7a).

The law regarding §1983 municipal liability applied

and cited by the Court of Appeals begins with Monell v.

Department of Social Services, supra. Monell held that a

municipality cannot be held liable under §1983 on a

respondent superior theory. Id. 436 U.S. at 691, 98 S.Ct. at

2036.

The Supreme Court further held that:

4s

. . a municipality may be sued for damages

under §1983 when the action that is alleged to

be unconstitutional implements or executes a

policy statement, ordinance, regulation or deci-

sion officially adopted and promulgated by that

body’s officers’ or is ‘visited pursuant to gov-

ernmental ‘custom’ even though such custom

has not received formal approval through the

body’s official decision making channels.” Id. at

690-691, 98 S.Ct. at 2035-36.

Quoting from Addickes v. S.H. Kress & Company, 398

U.S. 144, 167-168, 90 S.Ct. 1598, 1613, 26 L.Ed.2d 142

(1970), the court went on to cite the following with

approval.

“Congress included customs and usages [in

§1983] because of the persistent and widespread

discriminatory practices of state officials. .. .

Although not authorized by written law, such

practices of state officials could well be so per-

manent and well settied as to constitute a ‘cus-

tom or usage’ with the force of law.” Id. at 691,

98 S.Ct. at 2035-2036.

In Languirand v. Hayden, supra, the Fifth Circuit

addressed the issue of §1983 municipal liability for failure

to train and established the following standard:

“... [If there is a cause of action under Section

1983 for failure to properly train a police officer

whose negligent or grossly negligent perfor-

mance of duty has injured a citizen, that such

failure to train must constitute gross negligence

amounting to conscious indifference, and that a

municipality is not liable under Section 1983 for

the negligence or gross negligence of its subor-

dinate officials. including its chief of police, in

failing to train the particular officer in question,

in the absence of evidence at least of a pattern of

similar incidents in which citizens were injured

or endangered by intentional or negligent police

misconduct and/or that serious incompetence

or misbehavior was general or widespread

throughout the police force.” Id. at 227-228.

In City of Oklahoma v. Tuttle, supra, the Court held that

a single isolated incident of police misconduct is not

sufficient to impose §1983 liability against a municipality

under Monell.

The Court further expressed that:

“Proof of a singie incident of unconstitutional

activity is not sufficient to impose liability

under Monell, unless proof of the incident

includes proof that it was caused by an existing,

unconstitutional municipal policy, which policy

can be attributed to a municipal policymaker.

Otherwise the existence of the unconstitutional

policy, and its origin, must be separately

proved. But where the policy relied upon is not

itself unconstitutional, considerably more proof

than the 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 consti-

tutional deprivation.” Id. 471 U.S. at 823-824,

105 S.Ct. at 2436.

The Court in City of Springfield v. Kibbe, supra, held

that certiorari had been improvidently granted where the

city failed to properly preserve for review the question

whether inadequate training is a proper basis for munici-

pal liability. However, in City of Canton, Ohio v. Harris,

supra, the court concluded that there are limited circum-

stances in which an allegation of a failure to train can be

the basis for liability under §1983 and held that deliberate

indifference in failure to police officers is the standard of

fault and causation in such cases.

In reviewing the trial court’s order, the Court of

appeals noted that the law applicable to this case had

been well settled for some time. (Pet. A, 5a). Applying the

statements of law on municipal §1983 liability established

in Monell, Tuttle, City of Canton and Languirand to Peti-

tioners pleadings and concessions, the Court of Appeals

found that Petitioner’s pleading fell short of pleading a

cause of action against the City, and that such pleading

described no more than a single incident of arguably

excessive force applied by one officer. Petitioner had “no

case — not as a matter of pleading, merely, but as one of

conceded fact.” (Pet. A, 6a-7a).

The lower Court also considered the dissent in Kibbe

and the City of Canton opinion as argued by Petitioner in

support of her §1983 grossly negligent theory. The court

recognized that City of Cantcn mooted the question of

municipal liability for inadequate training and the appli-

cable standard, and that Kibbe did not announce any

departure from the single incident rule where the conduct

of several officers might be involved or the Fifth Circuit’s

rule in Languirand. (Pet. A., 7a-8a). The Court of Appea!s

concisely addressed the issue on appeal and did not, as

Petitioner contends, misconstrue or misapply the “single

incident” rule in affirming the trial court’s order of dis-

missal pursuant to Rule 12(b)(6), F.R.C.P.

Before Petitioner filed her Second Amended Com-

plaint, the Fifth Circuit had explored the contours of,

analyzed, re-evaluated, reiterated with approval and

expanded upon Monell, Tuttie and Languirand in a number

of other decisions dealing with §1983 claims against

municipalities for inadequate police and city employee

training. See Berry v. McLemore, 670 F.2d 30 (5th Cir. 1982);

Bennett v. Slidell, 735 F.2d 861 (5th Cir. 1984) per curiam

modifying 728 F.2d 762 (1984) (en banc) cert. denied, 472

U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985); Webster v.

City of Houston, 735 F.2d 838 (5th Cir. 1984)(en banc),

rev'd on other grounds, 739 F.2d 993 (5th Cir. 1984)(en

banc); Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.

1985) reh. denied 779 F.2d 1129 (1986) (en banc) cert.

denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987);

and, Palmer v. City of San Antonio, 810 F.2d 514 (5th Cir.

1987). However, since the general law applicable to this

case had been well settled in Monell, Tuttle and Lan-

guirand, the Court of Appeals apparently deemed it

unnecessary to rely on any of the above cases in deciding

this case.

The thrust of Petitioner’s second argument, which is

artfully and tactfully phrased, is that from a selective

reading and conclusory interpretation of the Petitioner’s

allegations in the Second Amended Complaint a charac-

terization of facts within the rules of City of Canton can be

found from which a policy of inadequate police training

sufficient to meet the requirements of City of Canton can

be inferred absent evidence of prior or similar incidents

of police misconduct.

In City of Canton, supra, the Court’s holding is as

follows:

“We hold today that the inadequacy of police

training may serve as the basis for §1983 lia-

bility only where the failure to train amounts to

deliberate indifference to the rights of persons

with whom the police come into contact.” Id.

109 ©&.Ct. at 1204, 103 L.Ed.2d at 426.

Monell, and Tuttle are cited in City of Canton with

approvai, and the Court succinctly states that:

“Only when a failure to train reflects a ‘deliber-

ate’ or ‘consciousness’ choice by a municipality

--a ‘policy’ as defined by prior cases - can a City

be liable for such a failure under §1983.” Id. 103

L.Ed.2d at 427.

Further elaborating, the Court states that it will not

suffice to impose §1983 liability against a city “by merely

alleging that the existing training program for a class of

employees, such as police officers, represents a policy for

which the city is responsible;” “that a particular officer

may be unsatisfactorily trained . .. i” nor “that an injury

or accident could have been avoided if an officer had had

better or more training, sufficient to equip him to avoid

the particular injury causing conduct.” Id. 103 L.E.2d at

427-428. Petitioner’s assertions for granting writ of cer-

tiorari herein are precisely the above what “the city could

have done” arguments rejected by the Court. Id. 103

L.E.2d at 428-429.

Petitioner is, in effect, requesting that the Court

ignore the teachings of Monell and Tuttle; ignore the Fifth

Circuit’s application of these teachings in Languirand and

in the present case; ignore Petitioner’s concession that

this is a single incident/single officer situation; and

ignore that the claim pled and argued below was a §1983

cause of action based on a custom of grossly inadequate

(grossly negligent) police training in subduing and han-

dling an armed and emotionally distraught individual,

such as Petitioner’s son. This is not justified, and purely

and simply serves to demonstrate that Petitioner is the

one misconstruing and refusirg to recognize the law

applicable to her case.

The Court of Appeals’ refusal to grant Petitioner

permission to proceed against the Respondent based on

her Second Amended Complaint was proper, and cor-

rectly prevented Petitioner from seeking to impose §1983

liability against the Respondent based on a pleading that

“would result in de facto respondent superior liability;”

“engage the federal court in an endless exercise of sec-

ond-guessing municipal employee-training programs”;

and, “would implicate serious questions of federalism.”

See City of Canton v. Harris, supra, 103 L.Ed 2d at 428-429.

10

Petitioner has conceded that she has pled her case

fully and has nothing to add to show a custom of grossly

negligent police training, which is a lesser standard than

the “deliberate indifference” standard of City of Canton.

Consequently, the Court of Appeals properly affirmed the

trial court dismissal of Petitioner’s claim for failure to

state a cause of action upon which relief may be granted

without having to add that “it appeared beyond doubt

that Petitioner had no set of facts to support her claim

which would entitle her to relief.” See Conley v. Gibson,

355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80

(1957); Palmer v. City of San Antonio, supra, at 515. See also

Elliott v. Perez, 751 F.2d 1472, 1479 and N.20 (5th Cir. 1985)

(Holding that a §1983 plaintiff must state specific facts

and not merely conclusory allegations)

The holding of the Court of Appeals is not in conflict

with applicable decisions of this court and this case does

not present an important federal question which has not

been settled by this court. Rule 17, U.S. Sup. Ct. Rules.

Il.

FAILURE TO PRESERVE

QUESTIONS PRESENTED FOR REVIEW

Petitioner in her Second Amended Complaint and

argument to the lower courts advanced only a §1983

theory based on gross negligence (grossly inadequate

training).

In Languirand, supra at 227-228 the Fifth Circuit had

held that “such failure to train must constitute gross

negligence amounting to conscious indifference.” After

Tuttle, the Fifth Circuit in Grandstaff, supra, 767 F.2d at

11

170, also expressed its “doubt that a finding of ‘gross

negligence’ in that inadequate training will always be the

ticket to municipal liability.” In Kibbe, the dissenting

opinion of Justice O’Connor, joined by Chief Justice

Rehnquist, Justice White and Justice Powell, announced

that the dissenting justices were prepared to hold that in

inadequate police training cases the standard that should

be required is “reckless disregard or deliberate indif-

ference,” Kibbe, Id. 480 U.S. at 268-269, 107 S.Ct. at 1121.

The “deliberate indifference” standard was then estab-

lished in City of Canton. The Petitioner cannot truthfully

deny having had notice that a “gross negligence” allega-

tion was insufficient. Petitioner clearly and purposely

decided to rely ona lesser standard of gross negligence in

light of the other serious defects in her amended com-

plaint that she would need to overcome in order to pre-

vent dismissal of her suit. Now, having exhausted and

failed on the claim as pled and argued in the lower

courts, Petitioner for the first time contends that “deliber-

ate indifference” is the standard by which her pleading

should be judged in order to justify her attempt to carve

out from her pleadings an inferred policy and cause of

action under City of Canton. Petitioner thereby hopes to

bypass the Monell, Tuttle and Languirand requirements for

showing the existence of a custom as followed by the

Court of Appeals in deciding her case. By her own_tactics

and objectives in the lower courts, the Petitioner failed to

preserve the questions presented that she now desires

this court to review. See City of Canton, supra at 103

L.Ed.2d at 423-424; Kibbe, supra, 480 U.S. at 258-260, 94

L.Ed.2d at 297-298 and Tuttle, supra, 471 U.S. at 815-816,

85 L.Ed.2d at 798-799 (discussing preservation of issues

12

and raising objections to questions presented no later

than respondent’s brief in opposition to petition for cer-

tiorari.) As previously argued above, Petitioner has thor-

oughly fiiled to even adequately plead a §1983 claim

against Respondent under the lesser standard of gross

negligence fashioned by her in the lower courts.

a

—

CONCLUSION

For the reasons stated herein, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

James E. BELTON*

Gomez & BELTON

700 Paredes Line Rd.,

Suite 105

Brownsville, TX 78521

Tel. (512) 544-1082

Counsel for Respondent

*Counsel of Record

in

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Red Portus,

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