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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 495 U.S. 930

## Text

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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1213%3A1. Public record. Not legal advice.