# Petition for Writ of Certiorari — Smith v. Sowers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0611%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1044 ## Text No. FILED IN THE SUPREME COURT NOV 14 189 OF THE UNITED STATES October Term, 1989 FREDERICK SMITH, in his individual. and official capacity as Principal Bradford Area High School; RICHARD MILLER, in his individual and official capacity as assistant principal of the Bradford High School; and FREDERICK SHUEY, in his individual and official capacity as Superintendent of the Bradford Area School District Petitioners vs JUDY GROVE SOWERS Respondent On Writ of Certiorari to the United States Court of Appeals for the Third Circuit PETITION FOR WRIT OF CERTIORARI Kenneth D. Chestek Murphy, Taylor, Trout & Chestek, P.C. 518 State Street Erie, Pennsylvania 16501 (814) 459-0234 James W. Harvey Israel and Wood, P.C. Suite 501 Grant Building Pittsburgh, Pa. 15219 (412) 391-1114 Attorneys for Petitioners I. QUESTIONS PRESENTED A. Are school students “at liberty” during summer vacation so that, under the rationale of this Court in DeShaney v. Winnebago County there exists no duty under the Fourteenth Amendment for school administrators to protect them from criminal assaults? B. Was there clearly established law in 1979 that school administrators had a duty under the Fourteenth Amendment to protect school students from criminal assaults? C. Can this Court’s holding in City of Canton v. Harris that municipal bodies may be held accountable for a policy amounting to “deliberate indifference” to the rights of citizens be extended to create a new theory of personal liability for municipal officials? il. TABLE OF CONTENTS Meh jy oe | so) | 1 » i Ser Fe lee . 5 1.) Srrerererererarar ili er Fe ty) ete |. See v SOURED GEOUD nc cc ecescccccesecees l A. Procedural History of This Case ..... l B. Related Proceeding .............. 2 V. STATEMENT OF JURISDICTION .......... 5 VI. CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED ...... 7 A. Constitutional Provisions ............. 7 Pe WUE MNS oc ccc ccc tae nccees 7 DTD ca Acces cnecccsccesese 8 i Sears) 3.) le Of @ \.. Pr rerre 9 re Cre 1] A. Summary of Argument ........... 1] B. The Court of Appeals Failed to Resolve the Question Posed by This OS Pre ee 12 l. The Court of Appeals’ opinion contlicts with Supreme Court precedent .......e0ee0085 14 i The Court of Appeals opinion conflicts with rulings in other eee Teey TT Tee eee 17 3. The Court of Appeals opinion conflicts with other rulings of thet Comit cn ccnccsccccces 18 os Smith, Miller and Shuey Are Entitled to Qualified Immunity ............ 20 D. The Court of Appeals Has Improper- ly Applied the Principles of Municipal Liability Under City of Canton to Individual Defendants ............ 22 Mae ati 5 Ee aA ee eee ee ee 29 X. CERTIFICATION OF MEMBERSHIP ....... 3] -IV- ill. TABLE OF AUTHORITIES Constitutional Provisions United States Constitution, Amendment 14, Section 1. 7 Cases Anderson v. Creighton, 483 U.S. 635 (1987) ....... 20 City of Canton v. Harris, 109 S.Ct. 1197 (1989) ..... 11, 22-24, 28 DeShaney v. Winnebago County Department of Social Ser- vices, 489 U.S. , 109 S.Ct. 998 (1989) ..... 2, 3, 11-14, 17-19, 24 Doe v. Bobbitt, 881 F.2d 510 (7th Cir. 1989) ....... 18 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ......... 20 Ingraham v. Wright, 430 U.S. 651 (1977) 2.2.2.2... 16 Milburn -v. Anne Arundel County Department of Social Services, 871 F.2d 474 (4th Cir. 1989), cert. denied 1989 US. LEXES 4189 (1909) 2... oc whlew a Se ec eke 17 Mitchell v. Forsyth, 472 U.S. 511 (1985) ...... 5, 14, 21 Philadelphia Police and Fire Association for Handicapped Children, Inc., et al v. City of Philadelphia, 874 F.2d 156 (3d CAE TROD that the conduct of those two school administrators, in the performance of their official duties for the school district, exposes them to personal liability in their individual capaci- ties. Yet the Court give no explanation of any sort as to the source of this personal liability. Since City of Canton deals exclusively with munici- pal liability, its application to a case involving (at this stage) only municipal officials is tenuous at best; at worst, it is an erosion of the principle enunciated in DeShaney. In the City of Canton case, Plaintiffs alleged that the City of Canton failed to adequately train its police officers to determine when persons taken into their custo- dy should receive medical attention. The Court held that the City might be liable if the Plaintiff could establish that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the viola- tion of constitutional rights, that the policy- makers of the city can reasonably be said to have been deliberately indifferent to the need. Id., 109 S.Ct. at 1205. While it might be appropriate to impose liability on the policy-making body itself (the City), the application of this principle to the municipal officers who implement the policies is far from clear. It may be that those officers who eA. can be said to create such policies of indifference might be found liable themselves in their capacities as policymakers (i.e. in their official capacities). But there is no justification for holding those persons liable in their individual or per- sonal capacities. In order to determine the capacity in which a per- son may be found liable, it is necessary to examine the capacity in which he acts when he does the things which allegedly result in liability. If a public official in the perfor- mance of his official duties acts in such a way as to di- rectly violate the Constitutional rights of some person, it may be that the public official can be held liable in his official capacity. If the duty to act arises be virtue of one’s official responsibilities, official capacity liability may result. Thus, school administrators may have a duty in their official capacities not to encourage teachers to sex- ually abuse students. A breach of that duty may result in official capacity liability. But the Court of Appeals in Stoneking IT held that Smith and Miller might be found liabile in their individual capacities if a jury believes they breached that official duty. Yet the Court does not suggest what the source of their duty in their individual or per- sonal capacities might be. Is the Court of Appeals saying that, above and beyond their official duties as school ad- ministrators, these men owed some personal duty to Stone- king? Is that simply the “duty to protect” wearing a new disguise? The most the Court of Appeals could say about the allegations in Stoneking II is that “a jury could reasonably conclude that . . . discouragement of complaints [by Smith and Miller] amounted to a communication of condonation of the teacher’s behavior,” Slip Opinion at p. ???, App. ??2. While the Court believes that such a jury finding would satisfy the “affirmative link” requirement of Rizzo v. Goode, 423 U.S. 362 (1976), a closer look at Rizzo reveals just the opposite. In Rizzo, a group of citizens filed a class action against the City of Philadelphia police force, seeking in- junctive relief under § 1983. The District Court found that none of the respondents in that case had actually parti- cipated in the deprivation of the rights of citizens, but found a “pattern” of discouraging citizen complaints and a tendency to “minimize the consequences of police mis- conduct.” /d., 423 U.S. at 368-69. Based upon those find- ings, the District Court required the City to prepare a set of guidelines to improve the handling of citizen complaints, and entered those new guidelines as an Order of Court. The United States Court of Appeals for the Third Circuit aftirmed. This Court reversed that judgment on several bases, including the lack of a justiciable case or controversy and out of principles of federalism. The Court discussed the merits of the § 1983 claim, however: . Respondents posit a constitutional “duty’ on the part of petitioners (and a corre- sponding “right” of the citizens of Philadel- -26- phia) to “eliminate” future police miscon- duct; a “default” of that affirmative duty being shown by the statistical pattern, the District Court is empowered to act in peti- tioners’ stead and take whatever preventive measures are necessary, within its discre- tion, to secure the “right” at issue. Such reasoning, however, blurs accepted usages and meanings in the English language in a way which would be quite inconsistent with the words Congress chose in § 1983. We have never subscribed to these amorphous propositions, and we decline to do so now. Id., 423 US. at 376. This case is no different than Rizzo. To paraphrase this Court, Sowers posits a Constitutional “duty” on the part of Smith, Miller and Shuey (and a corresponding right in herself) to “eliminate” sexual abuse of students by teachers; a “default” of that affirmative duty under her formulation should result in an award of damages under § 1983. Her “evidence” in support of a default of that al- leged duty is nothing more than a claim that student com- plaints (like the citizen complaints in Rizzo) were dis- couraged and minimized. She does not allege that Smith, Miller or Shuey committed any act which directly deprived her of rights (just like the respondents in Rizzo). If the facts in Rizzo were insufficient to warrant injunctive relief under § 1983, the nearly identical facts of yy this case should not be sufficient to warrant an award of damages under § 1983. The alternative rationale adopted by the Court of Appeals is not sufficient to support a finding of personal liability against Smith, Miller and Shuey in their individual capacities; they all should have been dismissed. This Court should grant certiorari and declare that City of Canton cannot be extended to create liability for municipal officers in their individual capacities. -28- IX. CONCLUSION WHEREFORE, Petitioners pray that a Writ of Certiorari issue from this Honorable Court to review the judgment of the United States Court of Appeals for the Third Circuit in this action. In the event that the Petition is granted, Petitioners pray that the judgment of the Court below be reversed, that the cause be remanded, and that the Court below be directed to dismiss Petitioners as defendants, as prayed for in the Petition. | Kenneth D. Chestek, Esq. MURPHY, TAYLOR, TROUT & CHESTEK, PC. 518 State Street Erie, PA 16501 (814) 459-0234 fom vv. ames W. Harvey, Esq. ISRAEL AND WOOD, PC. Suite 501 Grant Building Pittsburgh, Pa. 15219 (412) 391-1114 Attorney for Petitioners -29- X. CERTIFICATION OF MEMBERSHIP It is hereby certified that both of the Attorneys for the Petitioners are members of the Bar of the Supreme Court of the United States. Meh 9 thd Kenneth D. Chestek, Esq. -3]- XI. PROOF OF SERVICE I hereby certify that three copies of the within Peti- tion for Writ of Certiorari were served on Wallace J. Knox and Sean J. McLaughlin, Esq., 120 West 10th Street, Erie, PA 16501, this /# day of November, 1989. / ( ¥ ) 7 Pi ¢) Ct) / a rmwny 4 P4 : wf) Kenneth D. Chestek, Esq. a$$ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0611%3A1. Public record. Not legal advice.