Petition for Writ of Certiorari — Hawley ex rel. Hawley v. Kendall

ee

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

JOHN B. HAWLEY, INDIVIDUALLY AND

AS NEXT FRIEND FOR G. P. HAWLEY, A MINOR

Petitioners

Ve

ROY S. KENDALL, SHAUN M. MILLER,

EARL E. NEWSOM AND THE CITY OF DALLAS, TEXAS

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN B. HAWLEY

P. O. BOX 224083

DALLAS, TEXAS, 75222

(214) 941-6106

PRO SE

i

QUESTIONS PRESENTED FOR REVIEW

Whether in 1985, a police officer must

stop talking to a minor child under the age of

five years, when ordered to do so by a parent-

attorney of that child.

Whether, in 1985, the Texas parental

rights, privileges, duties and powers statute

[Texas Family Code §12.04] allows, permits

and/or requires a parent to stop a _ police

conversation with that parent's child when the

parent believes the child is being terrified by

the conversation and whether the disregard of

those state rights and powers give rise to a 42

U.S.C. 1983 cause of action.

Whether a _ police officer may claim

"unsettled law" as a basis for dismissal of

litigation when that same officer has formally

acknowledged that he believed, at the time of

the alleged abuse, the law to be what the

abused citizen claims was the law.

Whether by submitting to discovery, a

ii

defendant police officer waives his right to

qualified immunity under Mitchell v_ Forsyth.

Whether the City of Dallas, Texas, itself is

liable under 42 U.S.C. 1983 for allowing,

through the express written policy of that City,

the incarceration of persons charged with only

non-jail offences (Class C misdemeanors) at the

unfettered discretion of its police officers

regardless of the showing of a need for

detention or other legitimate governmental

purpose, when such unfettered discretion was a

cause of unlawful acts by individual defendant

officers herein.

NAMES OF ALL PARTIES

The names of all parties to the proceeding

in the court whose judgment is sought to be

reviewed appear in the caption of this case.

iii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW............... i

Me Or FEE PII occ kc orc ct eek ceeedeces ii

NE a wai a og a nas ache ae w a eal 1

PI ors oa hues waa uerens oy eens 1

CONSTITUTIONAL PROVISION AND ................

UIP E MPO VED 5 5 os esse Sees owes 1

Sr ce a ee a 55 wey we 7

REASONS FOR GRANTING THE PETITION .......... 11

REASONS ON QUESTIONS ONE AND TWO....... 11

REASONS ON QUESTIONS THREE AND FOUR.... .20

REASONS ON QUESTION FIVE............... 22

CD oe ans teerechweean een 31

ee Fs ee ene 34

ag RE Sg apse cian Bel mun Sae Un ET NE Pastas la

SE RS a ea es he oe ee ae eee 6a

iv

TABLE OF AUTHORITIES

CASES PAGE

Anderson v_ Creighton 483 U.S. 635,

107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). ..... ae

Ashcroft v. Mattis 431 U.S. 171,

97 S.Ct. 17399, SZ L.E.26 219 (1977)... .... 12.

Bell v. City of Milwaukee 746 F.2d |

1205 at 1246 (7thCir.1984) ............... i.

Bell v_ Wolfish 441 U.S. 523,

99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). . . .27-28.

City of Houston v_ Hill 482 U.S. -- ,

107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). . .10, 31.

Graham v. Conner -- U.S. --,

Rp SAX. TRG CRS). we ee | SD ly i « See)

In Re: Newchurch

Sur F.a6 Gow Cee Gee. 1966)... ww ce ew cee 28.

Kelson v. City of Springfield

Per Dae Gee Gee os tt ee we eeee 14.

Logan v. St. Clair

Fak Cie Gee Ee 8 eee eee ee ea 16.

Vv

Mattis v. Schnarr 502 F.2d 588 (8thCir.1974),

appeal following remand vacated on other

grounds sub nom., Ashcroft v. Mattis,

431 U.S. 171, 97 S.Ct. 1739,

Pe 8 Rf. oy, re 13-14.

Mitchell v_ Forsyth 472 U.S. 511,

105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) .. .1ii, 21.

Monroe v. Pape 365 U.S. 167,

ee I a a eg awe ok oo wo we ee 17.

Palmer v_ City of San Antonio, Texas

6 we By ee A: | 24.

Quilloin v. Walcott 434 U.S. 246,

98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ........ 15.

Reynolds v_ United States 80 S.Ct. 30,

4 L.Ed.2d 46 (1959).

PLpmmree GS CGUEE FUBEICE) jw ee es 27.

Sellers v United States 89 S.Ct. 36,

21 L.Ed.2d 64 (1968)

fmemem as Caremet Fastice! . . . wc ce ee 28-29.

Trujillo v. Board of County Commissioners of

County of Santa Fe

oe» 2) Ge of A, lL) re 14.

Whitley v. Albers, 475 U.S. 312,

106 S.Ct. 1079, 89 L.Ed.2d 251 (1986) ...... 30.

a

EEE

vi

Wounded Knee Legal Defense/Offense

Committee v. F. B. I.

Dae bas See CP 6. 6 o's ee ek Oe 19.

STATUTES, FEDERAL

Be Wes WOME 6 oie bene os Pe ee 2.

GEAUGA. GU oo ke eee 7, 12, 14, 17.

STATUTES, TEXAS

Texas Family Code § 12.04

ipl eecd aaa 3-4, 7, 11, 16, 17, 18, 20.

General Orders of

Dallas Police Department

oo Be a. | eee ere 5-6.

OTHER AUTHORITIES

ABA Standards for Criminal Justice,

eS EE os 6 aa cs 8 ee ee eee 18.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

No.

JOHN B. HAWLEY, INDIVIDUALLY AND

AS NEXT FRIEND FOR G. P. HAWLEY, A MINOR

Petitioners

Vv.

ROY S. KENDALL, SHAUN M. MILLER,

EARL E. NEWSOM AND THE CITY OF DALLAS, TEXAS

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

John B. Hawley, individually and as next

friend of G. P. Hawley, a minor, petitions, pro

se, for a writ of certiorari to review’ the

judgment of the United States Court of Appeals

for the Fifth Circuit in this case.

2

OPINIONS BELOW

The opinion of the court of appeals (App.

infra, la-3a) is unreported. The memorandum

and order of the district court (App. infra, 4a-

9a) is unreported.

JURISDICTION

The judgment of the court of appeals was

entered on the 13th of December, 1989. The

jurisdiction of this court is invoked under 28

U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Sixth Amendment to the Constitution

provides in pertinent part:

. and to have Assistance of

Counsel for his defence.

The Fourteenth Amendment to the

Constitution provides in pertinent part:

. nor shall any State deprive

any person of life, liberty or

3

property, without due process of

law ...

Section 12.04 of the Texas Family Code

provides in pertinent part:

Excey’ as otherwise provided

by judicial order or affidavit of

relinquishment of parental rights ...,

the parent of a child has_ the

following rights, privileges, duties

and powers:

(1) the right to have

physical possession of the child ...;

(2) the duty of

protection ... of the child;

(7) the power ... to

make other decisions of substantial

legal significance concerning’ the

child;

(10) any other right,

privilege, duty, or power existing

between a parent and child by

virtue of law.

[THERE ARE NO APPLICABLE STATUTES OR

REGULATIONS KNOWN TO PETITIONERS AND NO

STATUTES OR REGULATIONS ASSERTED BY

RESPONDENTS WHICH DIMINISH THE RIGHTS

OF A PARENT OR THE RIGHTS OF A CHILD.]

* * *

The Fourth Amendment to the

Constitution provides in pertinent part:

The right of the people to be

secure ... against unreasonable

seizures, shall not be violated ....

The Eighth Amendment to the

Constitution provides in pertinent part:

Excessive bail shall not be required, ...,

nor cruel and unusual punishments

inflicted.

DO@s bs

Section 305.10 of the General Orders of

the Dallas Police Department provides. in

pertinent part:

A. Generally, the

misdemeanor citation will be used

in every case of violation of the

traffic code or non-traffic city

ordinances wherein the officer is

authorized to release the person

charged on his own recognizance at

the scene of the arrest.

B. A prisoner arrested for

a Class C Misdemeanor only who

requires medical treatment will be

taken directly! to ... Hospital. .... No

prisoner under these circumstances

will be booked into jail unless an

unusual situation exist and under

Supervisory approval. Also, the

arresting officer must justify

placing the person in jail on the

arrest report.

S The misdemeanor

citation may also be used in any

other instance of charging a non-

traffic ordinace as currently

authorized by accepted procedures

Or aS may be authorized in the

future. These violations include

the following: ... 11. Disorderly

conduct.

D. In lieu of jail arrest,

officers may issue a non-traffic

citation for Municipal Court to the

suspect in the above offences after

first establishing positive

identification then checking ... the

suspect for outstanding warrants....

[underlined Emphasis in original; boldface

Emphasis added.]

y

STATEMENT OF THE CASE

This is a 42 U.S.C. §1983 action for

deprivation of various civil rights including but

not limited to the parental rights, privileges,

duties and powers of a parent set out in Section

12.04 of the Texas Family Code, and for related

causes of action for false imprisonment, assault,

battery, false arrest, malicious prosecution, and

intentional infliction of emotional distress.

Petitioners are father and daughter who

were stopped by City of Dallas police officers

Kendall and Miller (individual respondents

herein) in a routine traffic stop in Dallas, Texas,

in September, 1985. During the course of the

stop, Kendall began to lecture the minor

daughter (then four years ten months of age)

who was crying and became terrified at the

imposing of Kendall. Hawley, the father, first

requested and then demanded that Kendall

stop trying to converse with his minor child.

Kendall refused to stop imposing conversation

8

on the child and handcuffed and removed the

father for making the demand. Miller (a

trainee being ffield-trained by Kendall) did

nothing to oppose Kendall's acts. After the

handcuffing and _ successful imposition of

conversation on the terrified child, City of

Dallas police sergeant Newsom (individual

respondent herein) came to the scene and

approved the incarceration of the father (who

had, at the very begining of the stop, confirmed

to respondent Kendall his local community ties

and provided positive identification by virtue

of driver's license, automobile registration and

insurance as well as local self-employment as

an attorney in addition to having been cleared

for outstanding warrants) on a charge of

disorderly conduct for having too _ loudly

et te A hl Satie Aaah

- - e emai antes a ane

ee me ee ee

demanded his rights.1 The father was released

after five hours incarceration on $400.00 bond.

The father was charged with violation of

"child passenger safety seat system" for a child

over the age of two years and under the age of

four years even though her age of 4 years 10

months was known to respondents Kendall and

I Since it is unclear whether the trial court

dismissed for failure to state a claim upon which relief

may be granted or granted a summary judgment, the

Statement of facts herein is taken from the Affidavit of

petitioner John B. Hawley which was attached to

Plaintiffs’ Response to Defendants’ Motion to Dismiss or,

Alternatively, Motion for Summary Judgment, as well as

from the Complaint itself.

The Court of Appeals found that summary

judgment had been granted and accepted as true that

petitioner herein was attempting "to prevent’ the

policeman from badgering his daughter.” (App., infra,

page 3a).

ee ere ee

ani cea

10

Miller. The seat belt charge was dismissed for

want of prosecution when neither Kendail nor

Miller appeared at the trial to testify.

The father was also charged with

disorderly conduct which charge was, after

municipal court conviction, dismissed on appeal

by a State trial court of record, based on the

ruling by this Court in City of Houston, Texas’ v

Hill 482 U.S. --- , 107 S.Ct. 2502, 96 L.Ed.2d 398

(1987). [Respondent Miller twice testified at

hearings in that criminal case that the words

which the father shouted in the “unreasonably

loud voice” which constituted disorderly

conduct were that he (the father) was being

wrongfully arrested and that he (the father)

wanted someone to call a sergeant].

This case was filed in September, 1987.

Answers were timely filed and discovery

begun in December, 1988, by the taking of

depositions without objection of two individual

respondents herein and of the successor chief

11

of police (a non-party to this cause). In

January, 1989, the trial court issued unsolicited

leave for respondents to file Motion to Dismiss

or for Summary Judgment, which respondents

filed and to which petitioners duly responded

with affidavits and deposition excerpts.

A memorandum order and judgment

dismissing petitioners' civil rights claims

against the individual respondents on the basis

of qualified immunity) and dismissing

petitioners’ civil rights claims against the City,

was entered by the trial court in April, 1989.

A memorandum order affirming the trial

court's rulings was issued by the United States

Court of Appeals for the Fifth Circuit on 13

December, 1989.

REASON FOR GRANTNG THE PETITION

REASONS ON QUESTIONS ONE AND TWO:

The Court of Appeals held that because

Section 12.04 of the Texas Family Code does not

12

specify a legal consequence for interference

with rights, priviledges, duties and powers

granted a parent by that section, that court

finds no authority for petitioner's claims

ne a, DT eee et Ft

against the officers.

This decision directly conflicts with other

courts of appeal on the enforceability of

parental rights through 42 U.S.C. 1983 and with

the applicable decisions of this Court.

In addition this case affords this Court an

opportunity to begin to address the issues it

: was unable to reach in dismissing a _ parent's

claim for interference with parental

relationship in Ashcroft v. Mattis 431 U.S. 171,

97 S.Ct. 1739, 52 L.Ed.2d 219 (1977).

x * *

As this court "has said many times, §1983

is not a source of substantive rights but merely

ME en I, ne ea ee se

provides a method ffor vindication federal

rights elsewhere conferred." Graham v. Conner

-- U.S. --; 109 S.Ct. 1865 at 1870 (1989).

—

is

The Seventh, Eighth, Ninth and Tenth

Circuits have each found that parents have a

Constitutionally protected right to the

maintenance of a parent-child relationship:

"[Parents have a] constitutional right to

raise, associate with and to make

decisions affecting the family."

Bell v. City of Milwaukee 746 F.2d 1205 at

1246 (7thCir.1984).

"The familial relationship between a

parent and a child is fundamental to our

civilization.

"We do not believe the Constitution

excludes this fundamental relationship

from its protection.

"We believe that parenthood is a

Substantial value and _ protected from

deprivation without due process of law--

a fundamental legal right. The plaintiff

alleges that this fundamental relationship

has been invaded.

14

"Parents ... possess constitutionally

protected interest in the companionship

and society of their children.... This court

has previously held that such a liberty

interest exists and is cognizable under

section 1983."

Kelson v. City of Springfield 767 F.2d 651

653-654. (9thCir.1985).

"[PJarental relationships ... warrant the

greatest degree of protection and require

the state to demonstrate a ... compelling

interest to justify an intrusion on_ that

relationship ... [and we include them in]

the remedy established by section 1983."

Trujillo v. Board of County Commissioners

Mattis v. Schnarr 502 F.2d 588 at 594-595

(8thCir.1974), appeal following remand vacated

on other grounds sub nom., Ashcroft v. Mattis,

431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219

(1977).

at

of

County of Santa Fe 768 F.2d 1186 at 1899

2 SN UE

nee ae ee

a3

(10thCir.1985).

This Court has been no less assertive of

the Constitutionally protected rights of parents:

"We have recognized on numerous

occasions that the relationship between

parent and child is constitutionally

protected.

"We have little doubt that the Due

Process Clause would be offended if a

State were to attempt to _ force’ the

breakup of a natural family, over the

objections of the parents and_ their

children, without some _ showing of

unfitness and for the sole reason that to

do so was thought to be in the children's

best interest." (citations omitted)

Quilloin v. Walcott 434 U.S. 246 at 255, 98 S.Ct.

549 at 555, 54 L.Ed.2d 511 (1978). Petitioners

respectfully submit that the hypothetical facts

above are precisely the facts of this case

according to respondents, who attempt to

er

16

justify the police conduct by claiming Kendall

was trying to comfort the child. (See: footnote 1

of the district court's opinion, App., infra, page

Te.

Even the Fifth Circuit itself has

acknowledged that "[t]he courts have long

recognized that the Constitution protects. the

family and basic family practices. Cases have

involved ... upbringing of children ....". Logan v.

St. Clair 711 F.2d 690 at 691 (SthCir.1983).

Nonetheless, in the instant case the Fifth

Circuit recognizes none of these rights in

affirming the dismissal by the trial court, even

though the Fourteenth Amendment and the

Ninth Amendment were expressly pleaded in

the Complaint (App. infra, page 16a through

29a) as well as Texas Family Code $12.04.

Rather it seems to say that because 12.04,

in itself, does not "express what legal

consequence will follow from a third party's

conduct toward the child,” (App., infra, 3a)

17

there is no basis for a claim against the police

officers. This reasoning completely ignores the

fact that section 1983 provides the “method for

vindicating federal rights elsewhere confered"

(Graham v. Conner, supra) by expressly stating

the legal consequences from a third party's

conduct (if under color of state law) in violation

of the rights secured by the Constitution and

laws. Whether ‘Constitution and laws' includes

rights from state statutes or federal rights only

would not necessarily be reached in this case

since section 12.04 itself expressly reiterates

and reconfirms all existing rights in _ its

paragraph 10: "a parent of a child has: ...(10)

any other right, privilege, duty or power

existing between a parent and a child by virtue

of law.” And the fact that a state provision

concurrentiy gives the same rights as a federal

provision "is no barrier to the present [section

1983] suit in federal court." Monroe v. Pape

365 U.S. 167 at 183, 81 S.Ct. 473 at 482 (1961).

18

Moreover, the Texas statute, in addition

to specifying parental rights (paragraphs one

and seven of section 12.04) and reiterating

parental rights (paragraph ten), specifies legal

duties of the parent including the duty to

protect the child (paragraph 2). Petitioners

<n ae a alae

respectfully submit that the familial obligation

) of a parent to his child is at least as compelling

| as the professional obligation of an attorney to

his client and the attorney-client obligation has

; been soundly deemed to be worthy of federal

protection:

"With even stronger force it may be

said that a lawyer has_ standing to

challenge any act which interferes’ with

his professional obligation to his client

and thereby, through the lawyer, invades

the client's constitutional right to counsel.

It requires no citation of authorities to

reaffirm our historic commitment to

effective assistance of counsel in criminal

19

cases. That right may not be fettered by

harassment of governmental officials, and

any claim which factually asserts such

harassment presents a federal question

for our presentation.”

Wounded Knee Legal Defense/Offense

Committee v. F. B. I. 507 F.2d 1281 at 1284

(8thCir.1974). It is also of no small importance

to petitioners that the attorney-client

ee nr se en Mo Namo

relationship between them, happenstance

though it may have been in this case, was

utterly disregarded by the respondent officers,

and that disregard is also a basis of petitioners’

claims dismissed in this case.

In view of the above, a police officer,

when ordered to do so by a parent-attorney of

that child, must stop talking to a minor child

under the age of five years, as well as stop any

other intrusion into a parent-child relationship

unless that officer can show a compelling state

interest. Since no compelling state interest has

_

20

been offered or alleged in this case for the

disregarding of parental rights and for the

terrifying imposing of lecture and other

conversation by respondents’ herein,’ the

opinion of the court of appeals should be taken

for review by this Court as being in conflict

with the above cases from the other circuits

and cases from this Court.

REASONS ON QUESTIONS THREE AND FOUR:

The Court of Appeals correctly held that

the "subjective belief’ [of an officer] is not

enough to establish what a violation of 12.04 of

the Texas Family Code may consist of.” (App.,

infra, 4a). However, the point raised by

petitioners’ was different. Petitioners asserted

that because respondents Kendall and Newsom

had acknowledged in their respective

depositions that section 12.04 accurately stated

the law as they understood it to be at the time

of the incident, neither could thereafter assert

:

!

21

"unsettled law" as a means of claiming qualified

immunity under Mitchell v_ Forsyth 472 U.S.

511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

The allocation of burden of proof for

establishing "unsettled law" has been correctly

placed on those officials who seek _ the

protection of qualified immunity: defendant

officers are entitled to qualified immunity "if

[they] could establish as a matter of law that a

reasonable officer could have believed that [the

acts] were lawful." Anderson v Creighton

483 U.S. 635, 107 S.Ct. 3034 at 3038, 97

L.Ed.2d 523 (1987).

This aspect of qualified immunity and the

aspect of waiver of immunity by respondents’

submitting to discovery without objection, were

not reached by the Court of Appeals but each

aspect was well raised on appeal and each

aspect challenges the very basis of dismissal of

the individual respondents by the trial court.

Therefore, this case affords an _ additional

ey

22

opportunity to address the important federal

question of qualified immunity’ and _ its

availablity in the face of agreement about

applicable law as well as a first opportunity to

address its waiver by failure to claim the

immunity in a timely fashion (ie. prior to

submitting to discovery).

REASONS ON QUESTIONS FIVE:

This Court specifically left for future

resolution the "question whether the Fourth

Amendment continues to provide individuals

with protection against the deliberate use of

excessive force beyond the point at which

arrest ends and pretrial detention begins...."

Graham v. Conner, supra, at 1871 [note 10].

This case provides the opportunity to begin the

resolution of that issue for the decision by

sergeant Newsom to _ incarcerate petitioner-

father herein for too loudly asserting his rights

is clearly denoted and the unnecessariness (and

23

petitioners would argue, unconstitutionality) of

the incarceration in this case is_ clear.

Unfortunately the court of appeals has so far

missed the thrust of the question, that it might

be inaccurate to suggest that "a United States

court of appeals has decided an important

question of federal law which has not been, but

Should be, settled by this Court” as a basis for

granting review of this case. Rule 10.1(c) of the

Supreme Court. Nonetheless, petitioners

respectfully submit that it is an important

question of federal law which this Court should

address.

The Court of Appeals States that

petitioners’ brief "refers to no facts establishing

a policy or custom in the City of Dallas to

encourage police officers to ‘interview and

indoctrinate’ minor children in front of their

parents.” This is true, the brief makes no

reference to the City specifically encouraging

tte

24

!

interview and _ indoctrination. Petitioners’

assertion is that the City of Dallas encourages

all abusive actions against arrestees (including

punitive interview and _ indoctrination) by

approving of any incarceration of any arrestee

on any charge, without requiring justification

by the officer for the non-use of _ personal

recognizance citation which the officer is

authorized to issue. The written policy of the

City that allows such unfettered discretion is

cited in petitioners’ complaint (App., infra,

23a), in petitoners' brief below and on pages 5-

6, supra. This completely arbitrary power to

incarcerate any arrestee on any charge without

25

showing a need or justification causes? Dallas

police officers deliberately to abuse arrested

persons and if the arrested person asserts his

rights in response to the abuse, then to

incarcerate the arrestee and still be totally

within the scope of approval provided by the

written policy of the City. This retaliation

incarceration is automatically approved by the

City because the City policy approves every

incarceration without requiring officer

justification or explanation (except of an

arrestee needing medical attention: in that sole

2 "If the police officers know at the time they act

that the [unlawful act] will meet with the approval of the

City policy makers, then the causation requirement has

been met.” Palmer v City of San Antonio, Texas 810 F.2d

514 at $16 (SthCir.1987). The unlawful act the City of

Dallas approves of is retaliation incarceration which, by

threat or deed, suppresses resistance to every other

unlawful act by the police.

26

instance must the officer justify the

incarceration). Petitioners have specifically

pleaded that the unnecessary incarceration of

petitioner-father without the opportunity to

sign a personal recognizance citation in the

instant case was done on supervisory approval.

(App., infra, 23a). Additionally, in his

deposition, the chief of police himself expressly

approved the very actions of the respondent

officers in this case and the chief of police is, by

written policy of the City of Dallas, the

policymaker for general orders of the police

department. The chief of police further stated

in his deposition that he saw no reason in the

facts of this case to change the unlimited

discretion of Dallas police officers to incarcerate

without justification.

It is the position of petitioners that, in the

absence of a compelling state interest, when an

arresting officer has the authority to release an

accused person on a _ personal recognizance

27

citation, and does not do so but requires some

additional security for release, without some

showing by the officer of the inadequacy of the

citation to assure attendance at trial, then that

additional security requirement is a per se

imposition of excessive bail and_ the

incarceration preliminary to the settling of that

excessive bail is actionable under the Due

Process Clause of the Fourteenth Amendment

as a denial of liberty without trial or

compelling state’ interest. Moreover, the

deliberate incarceration preliminary to. the

settling of bail known to be excessive is

forbidden under the Eighth Amendment as

cruel and unusual punishment if the intent of

the denier or the incarcerator is maliciously to

inflict harm by the denial or by the

incarceration or by any other foreseeable

consequence, such as the terrifying

estrangement of a child of tender years or the

anguish and helplessness of a father listening

28

in frustration to the screams of his daughter.

The only Constitutional purpose of bail is

to assure the charged person will appear at the

trial. "The purpose of bail is to insure the

defendant's appearance and submission to the

judgment of the court. It is never denied for

the purpose of punishment...." Reynolds v

United States 80 S.Ct. 30 at 32, 4 L.Ed.2d 46 at

48 (1959) [Douglas as Circuit Justice]. "(T]he

government concededly may detain [a charged

person] to ensure his presence at trial...." Bell v

Wolfish 441 U.S. 520 at 536, 99 S.Ct. 1861 at

1873, 60 L.Ed.2d 447 at 467 (1979). "[I]f a

particular condition or restriction of pre-trial

detention is reasonably related to a _ legitimate

governmental objective, it does not, without

more, amount to ‘punishment.' Conversely, if a

restriction or condition is not related to a

legitimate goal -- if it is arbitrary or

purposeless -- a court may permissibly infer

that the purpose of the governmental action is

29

punishment that may not be constitutionally

inflicted on detainees...." Bell, supra, 441 U.S.

520 at 539, 99 S.Ct. 1861 at 1874, 60 L.Ed.2d

447 at 468. [emphasis supplied]. "Even when a

governmental purpose is. legitimate and

substantial, "that purpose cannot be pursued

by means that broadly stifle fundamental

personal liberties when the end can be more

narrowly achieved." A person accused of a

crime should not therefore be deprived of

personal liberty unless his confinment is

reasonably necessary to assure his presence at

trial or to protect some other’ important

governmental interest.” Jn Re: Newchurch 807

F.2d 404 at 408-409 (SthCir.1986). "The

command of the Eighth Amendment that

"Excessive bail shall not be required* * *' at the

very least obligates judges passing upon the

right to deny such relief only for the’ strongest

of reasons." Sellers v United States 89 S.Ct. 36

at 38, 21 L.Ed.2d 64 at 66 (1968) [Black as

30

Circuit Justice] [emphasis in original].

Petitioners would respectfully submit that the

Eighth Amendment obligates officers passing

on the right to personal recognizance bail to

deny such relief only for some objective reason

related to a legitimate state interest. Since no

reasons are present in the instant case, the

Eighth Amendment rights of petitioner-father

have been violated by the individual officers

acts and by the City's blanket approval of all

incarcerations including the retalitory

incarceration by the officers in this case as well

as the specific, express approval by _ the

policymaker for the City of the actual acts in

this case.

Equally, in view of the above, any

incarceration, however brief, to effect the

Setting of ummecessary' bail is infered a

punishment and, same being without trial, is a

denial of liberty disallowed by the due process

clause of the Fourteenth Amendment.

31

Moreover, any incarceration, however

brief, to effect the setting of unnecessary bail

in a non-jaii case is a punishment that is by

definition, unusual for a fine-only offense and,

by definition, in excess of the maximum

penality allowed, thus is in violation of the

Eighth Amendment prohibition against cruel

and unusual punishments if the respondents

have imposed that punishment "maliciously

and sadistically for the very purpose of causing

harm." Whitley v. Albers, 475 U.S. 312 at 320-

321, 106 S.Ct. 1079 at 1084-1085, 89 L.Ed.2d

251 (1986). Petitioners’ pleaded that individual

respondents Kendall and Newsom intentionally

inflicted emotional distress on petitioners, in

part by their knowing subjection of petitioners

confinement and to incarceration which was

not allowed by any charge lodged against

either of them and that allegation of intentional

infliction of emotion distress should suffice to

meet the requirement of subjective state of

32

mind noted for a finding of infliction of cruel

and unusual punishment Graham vv. Connor,

supra, 109 S.Ct. at 1873.

Lastly, petitioners claim the handcuffing

and physical confinement was_ objectively

unreasonable under the Fourth Amendment for

the circumstances of this case unless the father

truly had no right to maintain his parent-child

relationship without police intrusion and truly

had no applicable duty to protect his child from

the terror of the imposing _ individual

respondents.

CONCLUSION

This Court has told the City of Houston

that it may not, by overbroad _ ordinance,

Suppress a citizen's enjoying or asserting his

free speech rights. City of Houston, Texas’ vy

Hill 482 U.S. --- , 107 S.Ct. 2502, 96 L.Ed.2d 398

(1987).

Petitioners in this case ultimately ask this

Court to tell the City of Dallas that it may not,

33

by overbroad discretion to incarcerate,

suppress a citizen's enjoying or asserting his

parental relationship rights.

The American Bar Association Standards

on Criminal Justice recommends the standard

(Standard 10-2.2) that petitioners would urge

be adopted for mandatory issuance of citation

to avoid the abuses in this case. Moreover, the

City of Dallas, Texas already imposes such a

justification for incarceration requirement on

its police officers if the accused person needs

medical attention. Therefore there would be no

additional novel burden on the officers, merely

the extention of an existing requirement to

allow all citizens accused of non-jail offenses to

be treated the same as unhealthy citizens.

For all of the above reasons, petitioners

and each of them pray this Court grant review

of this case.

PRAYER

Petitioners pray this honorable Court

34

issue Writ of Certiorari in this cause

and for such further and other relief both

at law and in equity to which Petitioners and

either of them may show themseves or either

of them to be entitled.

Respectfully submitted,

JOHN B. HAWLEY, INDIVIDUALLY AND AS

NEXT FRIEND OF G. P. HAWLEY, A MINOR,

Appellants

P..O. BOX 224083

DALLAS, TEXAS, 75222

214/ 941-6106

PRO SE

35

CERTIFICATE OF SERVICE

I, John B. Hawley, do hereby certify that I

have delivered three true and correct copies of

the above and foregoing Brief for Appellants to

Sam A. Lindsey, Assistant City Attorney, City

Hall, Dallas, Texas 75201, on this

the /3°> dayof_Y2hrc

19 7% by ee, Liliver

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 89-1456

Summary Calendar

JOHN B. HAWLEY, INDIVIDUALLY AND

AS NEXT FRIEND FOR G.P. HAWLEY, A MINOR,

Plaintiff-Appellant,

versus

ROY S. KENDALL, SHAUN M. MILLER, EARL E.

NEWSOM AND THE CITY OF DALLAS, TEXAS,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

(CA3-87-2174-G)

(December 13, 1989)

Before GEE, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:1

1 Local Rule 47.5 provides: "The publication of

Opinions that have no precedential value and merely

decide particular cases on the basis of well-settled

principles of law imposes needless expense on the public

2a

Appellant John Hawley was arrested after

he became involved in an altercation with a

Dallas police officer who stopped him for a

seatbelt violation. It appeared that his

daughter, who was riding in the front seat of

his car and was four years ten months old at

the time, did not have her seat belt on. We

accept as true for purposes of this appeal

Hawley's assertion that he was arguing with

the officer in an attempt to prevent. the

policeman from badgering his daughter.

Hawley was arrested for disorderly conduct

and the seatbelt violation. He was incarcerated

briefly upon his arrest, but he was not

prosecuted for the charges against him. He

sued the officers and Dallas County. The

and burdens on the legal profession.” Pursuant to that

Rule, the court has determined that this opinion should

not be published.

3a

district court granted a summary judgment to

the defendants. We affirm.

Hawley's first three issues contend that §

12.04 of the Texas Family Code permitted him

to terminate the police interview of his child

when he believed the child was being terrified

by the interview. He also interprets’ that

provision to require a police officer to stop

talking to a minor child when ordered to do so

by its parent. Thus, he asserts that Officer

Kendall violated state law by continuing to talk

to his child. Section 12.04 defines the duties

and responsibilities of a parent under Texas

Law. It does not, however, express what legal

consequence’ will follow from a third party's

conduct toward the child. The provision

neither renders it illegal for an officer to

attempt to talk to a minor child, nor does it

immunize the parent's response from any

possible legal liabili.y. We find no authority in

§ 12.04 for Hawley's claim against the police

4a

officers. Summary judgment was_ properly

granted on this claim.

It does not matter whether the officer

"believed" at the time of the incident that a

parent has a right to cease the interrogation of

his child. Officer Kendall also testified that he

did not believe he was violating the law. In

any event, subjective belief is not enough to

establish what a violation of § 12.04 of the

Texas Family Code may consist of.

Because we find no violation of law in the

officer's conduct, we need not rule on Hawley's

fourth point, which asserts that a defendant

police officer waives his right to qualified

immunity by submitting to discovery.

Hawley's last point of error seems to

challenge the policy of the city of Dallas, Texas

in regard to both his arrest and 0Oobrief

incarceration. A city cannot be liable for civil

rights violations under a theory of respondeat

superior or vicarious liability. Monell v. New

5a

York City Department of Social Services,

436 U.S. 658, 694 (1978). It can only be held

liable if its official policy, expressed as a

Statement, ordinance, regulation or official

decision, or custom causes a person to be

deprived of a federally protected right. Id.

Hawley's brief refers to no facts establishing a

policy or custom in the City of Dallas to

encourage police officers to "interview and

indoctrinate" minor children in front of their

parents. Hawley has not advanced _ proof

regarding any city policy or custom that would

invalidate his arrest on disorderly conduct

charges. Finally, Hawley does not explain why

a brief incarceration on a misdemeanor offense,

pending bail, is unconstitutional. There was

simply no involvement by the City of Dallas in

its official policy or custom which could expose

it to liability for the officers’ arrest of Hawley.

The trial court's summary judgment is

AFFIRMED.

6a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Cause CA3-87-2174-G

JOHN B. HAWLEY, individually and as next

friend of G. P. HAWLEY, a minor

vs.

ROY S. KENDALL, SHAUN M. MILLER,

EARL E. NEWSOM and the CITY of DALLAS

MEMORANDUM ORDER

This case is before the court on the

motion of defendants City of Dallas, Roy S.

Kendall ("Kendall"), Shaun M. Miller ("Miller")

and Earl E. Newsom ("Newsom") to dismiss or,

alternatively, for summary judgment. The

facts of the case are summarized in_ the

footnote. !

l Kendall, Miller, and Newsom are police officers for

the defendant City of Dallas. On September 6, 1985,

plaintiff John B. Hawley ("Hawley") -- accompanied by his

then four year and ten-month old daughter G.P. Hawley

("G.P.") -- was stopped by the officers for a child restraint

(i.e., seat belt) violation. Although Hawley demanded

that officers Kendall and Miller stop talking to his

daughter, who was crying, they continued nevertheless.

Kendall asserts that the officers were trying to

comfort G.P. Kendall-deposition at 39. Hawley contends

that they were indoctrinating her with their own ideas of

safety. Complaint at 3. At all events, Hawley began to

shout at Kendall. Kendall, believing himself in danger of

physical assault, handcuffed Hawley, advising him

meanwhile that he was under arrest for disorderly

conduct. Arrest Report at 2-4. Hawley was charged with

violation of the child-restraint law, Texas Revised Civil

Statutes, Art. 6701d Sec. 107C(c) (Vernon Supp. 1989),

and disorderly conduct under Texas Penal Code § 42.01

(Vernon 1989).

In this action, Hawley alleges violation of his civil

rights and various pendent state law claims.

8a

I. Analysis

A. Onslified |

Qualified immunity shields government

officials who are performing’ discretionary

functions from liability for civil damages if

their actions could reasonably have been

considered consistent with the rights they are

claimed to have violated. The court must

assess the objective legal reasonableness of the

actions, in light of the legal rules that were

clearly established at the time. The contours of

the rights allegedly violated must have been

clear enough for a reasonable official to have

understood that he was violating those rights.

Thus, in light of preexisting law, the

unlawfulness of the defendants' acts must have

been apparent. Anderson v. Creighton,

US. _ __-, ~=107 S.Ct. 3034, 3038 (1987);

Matherne v. Wilson, 851 F.2d 752, 756-57 (Sth

Cir. 1988); Hodorowski v. Ray, 844 F.2d 1210,

1216 (Sth Cir. 1988). The court must measure

9a

the "law's certainty" against

an objectively

reasonable view of the facts facing an official."

Matherne, 851 F.2d at 756.

In response to this motion, Hawley has

identified two acts of the officers he contends

to be unlawful. First, he maintains that the

defendant officers violated Texa Family Code §

12.04 (Vernon 1986) by continuing to speak to

G.P. after he, as her father, denied them

permission to do so. Although § 12.04 governs

parental rights, no provision of that statute

requires peace officers to cease speaking to

minors upon parental request. Thus, in light of

preexisting law, any unlawfulness of the

"continued speaking" was not’ apparent.2

: Although not raised in his response, Hawley's

complaint alleges that the determination of a _ child

restraint violation was wrongful. Hawley has failed,

however, to show apparent unlawfulness. Tex. Rev. Civ.

10a

Second, Hawley urges that his arrest for

disorderly conduct was wrongful. Under Tex.

Code Crim. Proc. Art. 14.01 (Vernon 1977),

however, such an arrest is lawful. See also

Brown v. State of Texas, 594 S.W.2d 86, 87

(Tex. Crim. App. 1980) (Art. 1401 permits

arrest for disorderly conduct). Consequently,

his arrest was not apparently unlawful.

The same may be said of Hawley's claim

about discretion under General Orders § 300, et

seq., insofar as this claim relates to the officers

themselves.3 Hawley contends that the

discretion to arrest given the officers by the

Stat. Art. 6701d Sec. 107C requires seat belt restraints for

children ages 4 to 15.

3 Hawley appears to assert that his arrest and

subsequent jailing were illegal because child restraint

(i.e., seat belt) violations are punishable only by a fine.

Because arrest is prior to punishment, however, his

argument misses the mark.

lla

General Orders violated his constitutional rights

in two respects. First, he argues that this

discretion was a per se _ violation of the

Constitution. Yet he has presented no authority

in support of this bald proposition, and _ the

court has found none. Alternatively, he argues

that his rights under the Constitution were

violated here in two particulars. First, he

asserts a violation in that when he was

exercising his “statutory rights in regard to his

own child,” he was charged with disorderly

conduct "for resisting the intrusions of a non-

parent.” However, as detailed abcve, Texas

Family Code § 12.04 does not confer on him the

rights he asserts, nor do such rights derive

from the Constitution. Second, Hawley alleges

that he was "incarcerated" rather than being

taken immediately before a magistrate in

compliance with Tex. Code Crim. Proc. Art.

14.06 (Vernon 1977). Art. 14.06 does not

require, however, that an arrestee be taken

12a

before a magistrate immediately but only

"without unnecessary delay.” See Tex. Code

Crim. Proc. Art. 14.06. Hawley urges

alternatively that his rights were violated even

under the “unnecessary delay" standard. Yet

he has not stated any facts which would

demonstrate unnecessary delay. See Elliott v.

Perez, 751 F.2d 1472, 1479 n.20 (Sth Cir. 1985)

(more that conclusory’ allegations needed;

complainant must support civil rights claims by

reference to material facts); Hale v. Harney,

786 F.2d 688, 690 (Sth Cir. 1986) (same);

Matter of Lewisville Properties, Inc., 849 F.2d

946, 950 (Sth Cir. 1988) (on summary

judgment, non-movant may not rely on naked

assertions of dispute, but must adduce

admissible evidence creating a fact issue as to

each essential element of the claim).

Consequently, the defendant officers are

entitled to qualified immunity, and Hawley's

13a

civil rights claims against them must be

!

dismissed.

B. City of Dallas

The civil rights claims against the City of

Dallas must also be dismissed. A civil rights

plaintiff such as Hawley must identify "(1) a

policy (2) of the city's policymaker (3) that

caused (4) the plaintiff to be subjected to a

deprivation of consitutional right." The policy

or custom must be the moving force of the

constitutional violation. Palmer v. City of San

Antonio, 810 F.2d 514, 516 (Sth Cir. 1987).

Hawley alleges that the discretion to

arrest given officers under General Order

305.10 was such a policy. The court finds,

however, that E‘awley has failed to meet his

burden under the Palmer standard.

First, Hawley has not demonstrated the

existence of a constitutional violation, § as

explained above. Second, he has not

demonstrated that the discretion given. the

14a

defendant officers by General Order 305.10

was the moving force of the _ violation.

Consequently, Hawley's civil rights claims

against the City of Dallas must also be

dismissed.

Tl. Conclusion

Hawley's civil rights claims against the

defendants are DISMISSED with prejudice. The

court declines to exercise pendent jurisdiction

over the remaining state law claims and

therefore dismisses them _ without prejudice.

See United Mine Workers of America v. Gibbs,

383 U.S. 715, 726 (1966).

SO ORDERED.

April 25, 1989

/s/_ A. Joe Fish

A. JOE FISH

United States District Judge

15a

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Cause CA3-87-2174-G

JOHN B. HAWLEY, individually and as next

friend of G. P. HAWLEY, a minor

vs.

ROY S. KENDALL, SHAUN M. MILLER,

EARL E. NEWSOM and the CITY of DALLAS

JUDGMENT

For’ the reasons stated in the

memorandum order of this date, it is ORDERED

that plaintiff take nothing from defendants and

that defendants recover their costs of court.

April 25, 1989

/s/_ A, Joe Fish

A. JOE FISH

United States District Judge

l6a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Cause CA3-87-2174-G

JOHN B. HAWLEY, individually and as next

friend of G. P. HAWLEY, a minor

VS.

ROY S. KENDALL, SHAUN M. MILLER,

EARL E. NEWSOM and the CITY of DALLAS

COMPLAINT

Now comes John B. Hawley, Plaintiff in

the above numbered and entitled cause, both

individually and as next friend of G. P. Hawley,

a minor, and for this their Complaint would

respectfully show this honorable Court

follows:

17a

a

JURISDICTION

Jurisdiction in this cause derives from 28

U.S.C. $1343.

II.

PARTIES

Defendant Roy S. Kendall is a police

officer of the City of Dallas, Texas, and may be

served with process at the Dallas Police

Department, Main and Harwood Streets in

Dallas, Dallas County, Texas.

Defendant Shaun M. Miller is a_ police

officer of the City of Dallas, Texas, and may be

served with process at the Dallas Police

Department, Main and Harwood Streets in

Dallas, Dallas County, Texas.

Defendant Earl E. Newsom is a police

officer of the City of Dallas, Texas, and may be

18a

served with process at the Dallas Police

Department, Main and Harwood Streets in

Dallas, Dallas County, Texas.

Defendant City of Dallas is an

incorporated city of the State of Texas, and may

be served with process through the person of

the City Attorney of the City of Dallas, at 1500

Marilla, Dallas, Dallas County, Texas. |

III.

FACTS.

On or about the 6th of September, 1985,

at about 8:15 P.M., Plaintiff John B. Hawley,

accompanied only by his daughter, G. P.

Hawley, was driving his own private passenger

automobile on a public street in Dallas, Dallas

County, Texas, when he was stopped by

Defendants Kendall and Miller.

19a

At the time, Defendants Kendall and

Miller were each duly sworn police officers of

the City of Dallas, Texas, in police uniform,

operating a regularly marked City of Dallas

police patrol vehicle; and each was then and

there on active duty operating under the

official General Orders and Code of Conduct of

the Police Department of the Defendant City of

Dallas, Texas, specifically including but not

limited to Section 300.00 et seq of those

General Orders.

During the course of that stop Defendant

Kendall and Defendant Miller determined

(wrongfully) that a seat belt violation or a child

restraint violation had occurred, for the latter

of which Plaintiff John B. Hawley’ was

subsequently charged (wrongfully).

20a

The seat belt violation as well as the child

restraint violation are each Class C

Misdemeanors for which the maximum penalty

is a fine only with no_ provisions for

incarceration; nonetheless Plaintiff John B.

Hawley was incarcerated by Defendant Kendall

and Defendant Miller for the alleged violation

of child restraint.

Also, during the course of said stop by

Defendant Kendall and Defendant Miller, an

additional alleged offense was generated by

them, when Defendant Kendall, with the

acquiescence and consent of Defendant Miller,

undertook to indoctrinate said minor child, G. P.

Hawley, (then four (4) years and ten (10)

months of age) with Defendant Kendall's own

personal ideas of safety.

2la

When Plaintiff John B. Hawley insisted

that Defendant Kendall cease his lecturing and

indoctrination of Plaintiff's child, Defendant

Kendall handcuffed Plaintiff John B. Hawley

and took him to the idling patrol car.

As Plaintiff John B. Hawley was being

taken to the patrol car, he _ requested

unsucessfully of pedestrian passersby that a

Police Sergeant be called to stop the unlawful

acts of Defendant Kendall and Defendant Miller,

for which request Plaintiff John B. Hawley was

(wrongfully) charged with Disorderly Conduct.

Disorderly Conduct is also a Class C

Misdemeanor for which the maximum penalty

is a fine only with no provisions for

incarceration; nonetheless, Plaintiff John B.

Hawley was incarcerated for that alleged

violation of disorderly conduct.

22a

After the handcuffing but prior to the

incarceration of Plaintiff John B. Hawley,

Defendant Earl E. Newsom, then a duly sworn

uniformed Sergeant of the City of Dallas Police

Department, on active duty and operating

under the offical General Orders and Code of

Conduct of the Police Department of _ the

Defendant City of Dallas, Texas, specifically

including but not limited to Section 300.00 et

esq of those General Orders, appeared at the

scene of the initial stop, reviewed the

circumstances with Defendants Kendall and

Miller and then shouted at Plaintiff John B.

Hawley, “Book him for child restraint violation

and disorderly conduct.”

For neither the alleged child restraint

violation nor the alleged disorderly conduct

violation was Plaintiff John B. Hawley ever

23a

given the opportunity to sign a Citation

effecting a personal recognizance bond but

rather, in accordance with the unlimited

ij I ‘tted Dall Poli

FF; li . the Ci

Dalied in Maes 305.10 of the G L_Ord

of the Dallas Police Department, Plaintiff John B.

Hawley was incarcerated for those non-jailable

alleged offenses, all without prior trial, and in a

imposition of excessive bail, by Defendant

Kendall, Defendant Miller and, on _ supervisorial

approval, by Defendant Newsom.

As ae_result of the illegal and

unconstitutional arrest, imprisonment, familial

estrangement, and terrific handling of Plaintiffs

and either of them, Plaintiffs have suffered

extensive psychological, emotional and personal

damages in amounts in excess of ten thousand

24a

dollars each for which damages Plaintiffs

should have judgment against and recovery

from Defendants and each of them, jointly and

severally, in the total of damages sustained.

IV.

CAUSES OF ACTION

Defendants Kendall, Miller and Newsom

were each acting under color of law as

described above in depriving Plaintiff John B.

Hawley of his constitutional rights:

to due process not to be deprived of

liberty and property by incarcerating him

without trial,

to reasonable and non-excessive bail by

denying him _ release on a_ personal

recognizance bond,

not to be subjected to cruel and unusual

punishment by incarcerating him _ in

excess of the fine only punishment

25a

permitted by the law governing Class C

Misdemeanors,

not to be seized unreasonably by

arresting and incarcerating him for non-

offenses and/or offenses generated by

the police, and

as well as those constitutional rights

reserved under the Ninth Amendment

and the Fourteenth Amendment to the

United States Constitution specifically

including but not limited to those rights,

powers, priviledges and duties set forth

in Section 12.04 of the Texas Family Code.

and in each of said deprivation of rights, the

City of Dallas by its express written policy of

unlimited discretion of its Police Officers to

refuse personal recognizance bonds and to

incarcerate persons charges only with Class C

Misdemeanors, has established the official

policy of said Defendant City of Dallas to allow

the deprivation of said rights.

26a

In addition, Plaintiff John B. Hawley

asserts causes of action against Defendants and

each of them for false imprisonment, assault,

battery, false arrest and malicious prosecution

by all Defendants and intentional infliction of

emotional distress by Defendant Kendall and by

Defendant Newsom.

Plaintiff G. P. Hawley asserts causes of

action for assault, battery, false imprisonment,

as well as deprivation under color of state law

of her civil rights:

to due process including right to counsel

by the physical removal by all

defendants of her next friend and

attorney during a criminal investigation,

to due process including effective right to

counsel by the continued interrogation of

her by Defendant Kendall and Defendant

Miller after her next friend and attorney

had instructed the interrogation cease,

27a

to due process not to be deprived of

liberty or property by being required by

all defendants to accompany a _ police

officer,

to due process not to be subjected to the

punishment of lecture, reprimand and/or

indoctrination without a trial as was done

by Defendant Kendall,

not to be subjected to the cruel and

unusual punishment of being terrorized

by Defendant Kendall, Defendant Miller,

and Defendant Newsom while she _ was

emotionally, psychologically and

personally vulnerable by age and

circumstance, and

as well as those constitutional rights

reserved under the Ninth Amendment

and the Fourtenth Ammendment to the

United States Constitution specifically

including but not limited to those rights,

powers, priviledges and duties to her

benefit under Section 12.04 of the Texas

Family Code.

28a

WHEREFORE, PREMISES CONSIDERED, John

B. Hawley and G. P. Hawicy pray this honorable

Court cite Defendants and each of them to

Appear and Answer herein and upon final

hearing

grant Plaintiffs and each of them

judgment against and recovery from

Defendants jointly and severally, in the amount

of damages shown by Plaintiffs with pre-

judgment interest and post-judgment interest

thereon at the maximum rate allowed by law

grant Plaintiff John B. Hawley judgment

against and recovery from Defendant Roy S.

Kendall exemplary damages in twice. the

amount of actual damages but in no event less

than $200,000.00.

29a

Order the City of Dallas to establish a

constitutionally acceptable policy for the bail of

persons accused of only Class C Misdemeanors

and for such further and other relief both

a law and in equity to which Plaintiffs may

show themselves to be justly entitled.

Respectfully submitted,

JOHN B. HAWLEY, Individually,

and as next friend of G. P.

HAWLEY, a minor

John B. Hawley, pro se

P.O. Box 224083

Dallas, Texas 75222

214/941-6106