Opposition Brief — Stroud v. Shaw

Cour.

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due 3.0 1094

peme 06 BS BENS

No. 93-1893

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

C. I. STROUD, Individually,

Petitioner,

DEBORAH SHAV, Administratrix of the Estate of

Sidney Bowen, Deceased, and NANCY BOWEN,

Individually and as guardian ad litem for

KIMBERLY YVONNE BOWEN and LEE FREDERICK

BOWEN, the minor children of Sidney Bowen,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

JAMES E. FerGuson, II *

ANITA S. HODGKISS

FERGUSON, STEIN, WALLAS,

ADKINS, GRESHAM

& SUMTER, P.A.

700 E. Stonewall Street

Suite 730

Charlotte, North Carolina 28202

(704) 375-8461

*Counsel of Record. Attorneys for Respondents.

June 30, 1994

oe

Washington, 0.C. © THIEL PRESS © (202) 328-3286

(t)

QUESTION PRESENTED

I. WHERE A SUPERVISOR APPROVED, CONDONED,

LAUGHED AND JOKED ABOUT A TROOPER’S RE-

PEATED USE OF EXCESSIVE FORCE ON ARRESTEES

OVER A PERIOD OF FIVE YEARS, WAS IT REASON-

ABLY FORESEEABLE THAT THE TROOPER WOULD

CONTINUE TO USE EXCESSIVE FORCE AFTER THE

SUPERVISOR WAS TRANSFERRED?

(11)

LIST OF PARTIES

Petitioner C. I. Stroud, a Sergeant in the North Caro-

lina Highway Patrol.

Respondents, Deborah Shaw, Administratix of the

Estate of Sidney Bowen, Deceased, Nancy Bowen, indi-

vidually and as guardian at litem for Kimberly Bowen

and Lee Frederick Bowen, children cf Sidney Bowen.*

*Petitioner named Nancy Bowen and her children, Kimberly

Bowen and Lee Frederick Bowen, as respondents. They are not

properly before the Court on any claims against Petitioner Stroud.

They are, however, properly before the Court in a contempor-

aneously filed Cross-Petition in this case. Nonetheless, we will

refer to Respondents in the plural in this Brief.

(iit)

TABLE OF CONTENTS =.

QUESTIONS PRESENTED... . 2... cc eeeccccccccces i

RE GU EE bc ccocc ec ee cceseeseesesbeesses ii

EE cnc bea dee seb esceceseeeces iii

i i E . . . 5 5666) 0006060 006088 iv

a a a ee ee a a 1

CONSTITUTIONAL PROVISIONS AND

ED 6 oe cee eee eee eee eeesense 2

SE Ae GO BED IED occ ccc ccc ccc ccc cccccese 2

REASONS FOR DENYING THE WRIT ..............6.6-. 8

I. BY IMPOSING SUPERVISORY LIABILITY UPON

A SUPERVISOR WHO APPROVED, CON-

DONED, LAUGHED AND JOKED ABOUT

A PATTERN OF VIOLENT CONDUCT OF AN

OFFENDING SUBORDINATE, THE CIRCUIT

COURT CORRECTLY APPLIED ESTAE-

LISHED LEGAL PRINCIPLES TO AN

APPROPRIATE FACTUAL SETTING ............. 9

Il. THERE IS NO CONFLICT AMONG THE CIR-

CUITS ON THE STANDARD FOR SUPER-

Ill. PETITIONER STROUD’S APPROVAL AND EN-

COURAGEMENT OF MORRIS’ VIOLENT

UNCONSTITUTIONAL CONDUCT COULD

REASONABLY BE CONSIDERED A PROX-

IMATE CAUSE OF SIDNEY BOWEN'S

DEATH, NOTWITHSTANDING STROUD’S

TRANSFER BEFORE THE ULTIMATE

IV. PETITIONER STROUD IS NOT ENTITLED TO

QUALIFIED IMMUNITY BECAUSE THE

STANDARDS FOR EXCESSIVE FORCE

AND SUPERVISORY LIABILITY WERE

CLEARLY ESTABLISHED AT THE TIME

OF STROUD’S TENURE ........----- se eeeees 18

CONCLUSION 2... ccc ccccccccccccccccccccccces 20

CERTIFICATE OF SERVICE ..... 2... eee cece cece 21

(1)

Page

TABLE OF AUTHORITIES

Cases:

Avery v. County of Burke, 660 F.2d 111 (4th Cir.

| rr ne ae a a ere ae 8

Bailey v. Turner, 736 F.2d 963 (4th Cir. 1984)........... 18

Black v. Stephens, 662 F.2d 181 (3rd Cir. 1981).......... 14

Doe v. Taylor Independent School Dist., 15 F.3d

GED GG hee bbe heh en asec esceseceae 14

Fox v. Custis, 712 F.2d 84 (4th Cir. 1983).............. 12

Fruit v. Norris, 905 F.2d 1147 (8th Cir. 1990) ........... id

Fundiller v. City of Cooper City, 777 F 2d 1436

CERERGE BOONE cca c ee cc ede assaraeecesseneess 14

Gaudreault v. Municipality of Salem, Mass., 923 F.2d

Ft ft: S|) 6 TE TL ELT CORTE Eee 14

Hampton v. Hanrahan, 600 F .2d 600 (7th Cir. 1979)....... 14

Haynesworth v. Miller, 820 F.2d 1245 (DC. Cir.

Pee er ee ee yee ee Te ere PT ePETeee 16

Hays v. Jefferson County, Ky., 668 F.2d 869 (6th

Ge, TEED 6 0.6 06-05 0 026e hb beeen adeneccecers 14

Howard v. Adkison, 887 F.2d 134 (8th Cir. 1989)......... 14

Humann v. Wilson, 696 F.2d 783 (10th Cir. 1983)......... 12

Janan v. Trammell, 785 F 2d 557 (6th Cir. 1986) ...... 12,13

Justice v. Dennis, 834 F.2d $80 (4th Cir. 1987) .......... 18

Ketchum v. Alameda County, 811 F 2d 1243 (9th

Gee SORE xk Coco kn bo CUE USE ES Ch SOE Ces eh ece 13

Martinez v. California, 444 US. 277, 100 S.Ct. 553,

Ge Ra GE CUP oct cccicoseseces 9,11, 12,13

Martinez Correa v. Lopez Feliciano, 759 F Supp. 947

SE cs bons bn tees hhbsenecdas 16

Meriwether v. Coughlin, 879 F.2d 1037 (2nd Cir.

ROSES 0 < sec chm OPER F466 REA O64 @ oc es WTO 14

(v)

Cases, continued: Page

Orpiano v. Johnson, 632 F.2d 1096 (4th Cir. 1980),

cert. denied, 450 US.929, 101 S.Ct. 1387,

gt Pe er tre 8

Rieser v. District of Columbia, 563 F.2d 462 (D.C. Cir.

Gen os ah es A a ac in ees 16

Rizzo v. Goode, 423 US. 362, 96 S.Ct. 598, 46 L-Ed.2d

i cs dino ces ce eee iwkacas 8, 10, 14, 15

Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994) ........ 1,8, 10

Slakan v. Porter, 737 F 2d 368 (4th Cir. 1984), cert.

denied, 470 US. 1035, 105 S.Ct. 1413, 84

Lda SPO CRUEEG Sct dacde Ves wneas 8, 10, 11, 14, 18

Tennessee v. Gardner, 471 US. 1 (1985) ............... 18

Withers v. Levine, 615 F.2d 158 (4th Cir. 1980) .......... 8

Woodward v. City of Worland, 977 F 2d 1392 (10th

i Pec eViawanesesedeeneeakacks ¢oue st 14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

C. I. STROUD, Individually,

Petitioner,

DEBORAH SHAW, Administratrix of the Estate of

Sidney Bowen, Deceased, and NANCY BOWEN,

Individually and as guardian ad litem for

KIMBERLY YVONNE BOWEN and LEE FREDERICK

BOWEN, the minor children of Sidney Bowen,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

OPINION BELOW

The Fourth Circuit’s opinion in this case is Shaw v.

Stroud, 13 F.3d 791 (4th Cir. 1994), and is reproduced

in the appendix to the Petition for Certiorari filed herein.

l

2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. U.S. Const. amend. IV.

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue but upon probable cause, sup-

ported by oath or affirmation and particularly

describing the place to be searched and the persons

or things to be seized.

2.42 U.S.C. §1983 (set out in Petition for Wnit of

Certiorari at App. 73).

STATEMENT OF THE CASE

Petitioner’s statement of the procedural history of the

case is correct and will not be repeated here, but his

representation of the facts contains sufficient inaccura-

cits and misleading statements to warrant a restatement

of the facts. We state the facts in the light most favor-

able to the respondent because the issues arise upon a

consideration of summary judgment.

On February 27, 1990, as Sidney Bowen pulled into

his driveway, he was accosted by officer Alfred Morris,

a State Trooper, who suspected him of driving while

impaired. At Morris’ request, Bowen displayed his driv-

er’s license and seated himself in the patrol car. Shortly

afterwards, Bowen, unarmed, ran from the car with

Morris in close pursuit, wielding his flashlight.

During the brief chase, Bowen’s stroke-stricken wife,

Nancy, and thirteen year old daughter, Kim, heard him

say, “Kim, go get help. The law is trying to kill me in

my own front yard.” “Okay, okay, I'll go anywhere

a

3

you want me to go.” “Nancy, I’m going to jail.” (J.A.

403, 1038-1044). Morris brought Bowen to the front

of the house and stood near the patrol car with him.

Bowen jerked his hand away from Morris. Morris then

beat Bowen to the ground with his flashlight, as Bowen

tried to protect himself from the blows of the flash-

light. (J.A. 404).

Morris shot Bowen several times, until Bowen fell,

killing him on the spot, while Bowen’s wife looked on,

helplessly. (J.A. 404-05).

Just nine months before Morris killed Bowen, Judge

Eugene Gore, a state court district judge familiar with

Morris’ violent propensities, accurately predicted in a

complaint against Morris that it was “only a matter of

time before Trooper Morris seriously injures a person.”

Judge Gore stated that he had seen case after case where

Morris had used excessive force, usually on black people

or those of lower means. (J.A. 447). Judge Gore’s

assessment of Morris was borne out by Morris’ history

as a patrolman. Morris violent tendencies and conduct

were not only known to Judge Gore, but to Morris’

supervisors, petitioner C. I. Stroud, and Sergeant J. M.

Smith.

During the five years, 1983-1988, that Petitioner,

C.I. Stroud supervised Morris, he received reports about

Morris’ use of excessive force and his rude manner with

the public. In May, 1987, Harvey Paul Walker, who had

been beaten by Morris, told Stroud that he wanted to

talk with him about the way Morris mistreated him.

Stroud shrugged it off, saying, “Oh, he roughed you

up,” and never followed it up. (J.A. 361). In the same

month, Stroud was informed that Morris had called an

Lay A.” refers to the Joint Appendix filed in the Fourth

Circuit Court of Appeals.

4

arrestee, Thomas Mensor, a “nigger.’’ No action was

taken against Morris. Instead, Morris was cleared. (J.A.

509-11, 811-18, 842-48). When another Morris arrestee,

Gary Ward, complained of Morris’ violence to Stroud in

July, 1987, Stroud just “sort of smiled at him.” (J.A.

389-90). Incidents of Morris’ rudeness occurring in

September and December of 1987, and in February

and May of 1988, were brought to Stroud’s attention.

(J.A. 501-05, 762-65).

When Jesse James, arrestee, tried to complain to

Stroud about being assaulted by Morris in March, 1988,

Stroud refused to listen to him, but laughed in his face

and said to Morris, “You got another one.”’ (J.A. 924-

27). In July, 1988, John Cothron, an arrestee, com-

plained that he suffered two five-inch cuts on the head,

was beaten in the face and was struck in the ribs during

an arrest by Morris and another trooper. Stroud instructed

a subordinate to conduct an investigation in which Mor-

ris was completely exonerated. (J.A. 465).

During Stroud’s tenure from September, 1987, to

December, 1988, six of the nine charges of assault on a

law enforcement officer in Columbus County, North

Carolina were brought by Morris. There were forty-six

charges for resisting arrest, twenty of which were ini-

tiated by Morris. From 1984 to 1990, thirteen people

arrested by Morris alleged that he used excessive force.

Stroud was transferred from Troop B-V and replaced

by First Sergeant J. M. Smith in December, 1988. Stroud

did not inform Smith about Morris’ history of complaints

of using excessive force.

Morris’ abusive behavior continued under Smith. In

March, 1989, Chief Roscoe Jacobs, a fire chief, com-

plained to Smith about Morris’ rudeness at an accident

scene. In May, 1989, Smith was told that District Court

Judge Gore had complained that over the past eighteen

5

months he had seen case after case involving the use of

excessive force by Morris on arrestees, particularly

“blacks or people of lower menas.”’ (J.A. 447). It was at

this time that the Judge made the prophetic comment

that it was just a matter of time before Morris seriously

injured some one. Only a week after Judge Gore’s com-

plaint, a local lawyer complained of Morris using exces-

sive force on his client. Smith’s only response was to

have a line sergeant attend the criminal trial where the

judge would not allow any evidence of excessive force.

(j.A. 333-48, 694-703).

Just three weeks before Sidney Bowen was killed,

Smith met Morris at the hospital where a Morris arrestee,

Rudolph Towns, was admitted for treatment of injuries

inflicted by Morris (Supplemental Appendix 12).

Court records show that Trooper Morris had a dispro-

portionately high number of arrests for the charges of

assault on a law enforcement officer and resist/delay/

obstruct an officer in the years immediately before the

incident involving Sidney Bowen. During the two and

a half years prior to February 27, 1990, the twenty

troopers in Troop B-V brought a total. of eighty-eight

charges in Columbus County for assault on a law enforce-

ment officer and resisting arrest. (J.A. at 439-41).

Trooper Morris initiated thirty-nine of these eighty-eight

cases. Thus, over 44% of all cases for these two charges

in Columbus County were brought by Trooper Morris.

From September, 1987, to December, 1988, a time in

which Stroud was First Sergeant, nine charges for assault

on a law enforcement officer were lodged in Columbus

County by state troopers. Of these, six were initiated by

Trooper Morris. Over the same period, there were

forty-six charges for resisting arrest, twenty of which

were initiated by Morris. (J.A. at 439-41).

6

When Smith was First Sergeant, from January, 1989,

through March, 1990, there were six charges for assault

on an officer in Columbus County, two of which were

brought by Trooper Morris. In the same period there

were twenty seven charges for resisting arrest, eleven of

which were brought by Trooper Morris. (J.A. at 439-

41). Trooper Morris clearly had a significantly greater

number of charges for these offenses during this time.

Indeed, a number of troopers were able to carry out

their duties without ever filing these charges.

This disproportionately high number of tickets for

assault and resisting charges is not explained by Morris

working more hours, or writing more citations gener-

ally. Highway patrol records for Troop B-V in 1988

and 1989 show that Trooper Morris’s total hours worked

for 1988 and 1989 were actually less than several other

troopers and consistent with the number of hours worked

by most of the troopers. (J.A. at 451, 455). Similarly,

the number of traffic tickets Morris wrote overall was not

significantly out of line with anyone else. (J.A. at 454,

458). Finally, Trooper Morris’s higher number of assault

and resisting charges is not explained by the areas where

he patrolled. All of the troopers in Troop B-V worked

the difficult areas. (J.A. at 718).

Sergeant Stroud states that he does look at the num-

ber of assault charges and resisting arrest charges that a

patrolman makes to see if there is a pattern, and that if

there is a pattern, it indicates that a supervisor probably

needs to keep a closer eye on that patrolman. However,

in spite of the complaints he received, he never reviewed

the assault and resisting charges that Trooper Morris was

making. (J.A. at 784-86).

oat aaa q

;

Trooper Morris claims that in accordance with patrol

policy, he told a supervisor each time he used such force

in the course of making an arrest that the arrestee was

injured and required medical treatment. (J.A. at 822-29,

263). Usually, the supervisor would meet Morris at the

hospital. He made his First Sergeants aware of roughly

a dozen incidents where he had struggles with people.

(J.A. at 829). However, Highway Patrol policy also

requires that a trooper make a written report of any

incident in which force is used. (J.A. at 397). The

report is reviewed by the Line Sergeant and the First

Sergeant. (J.A. at 398). Morris did not comply with

this policy and his supervisors, who knew of the inci-

dents from their hospital visits, took no action to see

that the policy was enforced.

Additionally, the supervisors knew that Morris was

claiming that large numbers of citizens were assaulting

him. Between April, 1987, and February, 1990, Morris

conipleted Report of Assault forms relating to eight

separate incidents where he claimed he was assaulted,

including the incident where Mr. Menser had complained

that Morris had called him a “nigger” and the incident

giving rise to this lawsuit. (J.A. at 513-18).

In the face of this history and pattern of excessive

force and rudeness, Morris was never disciplined by either

Stroud or Smith during their respective periods of super-

vision. It was this set of facts which led the court below

to conclude that Stroud’s liability was a question for the

jury.

Stroud’s Petition for Certiorari seeks to overturn the

Fourth Circuit opinion holding that the question of his

liability is a question for the jury. We contend that the

8

opinion below is correct in this regard and certiorari

should be denied. However, alternatively, we have filed

a cross petition asking this Court to review the supervis-

ory liability of Stroud’s successor, Sergeant Smith, in the

event Stroud’s petition is granted. The majority and the

dissent below agree that the facts support liability of at

least one of the supervisors. If certiorari is granted, it will

be necessary to consider the liability of both supervisors

in order for this Court to make a full and fair determina-

tion of supervisory liability.

REASONS FOR DENYING THE WRIT

The decision below of the United States Court of

Appeals for the Fourth Circuit, Shaw v. Stroud, 13

F.3d 791 (4th Cir. 1994), correctly held that a supervis-

ing state trooper was liable under 42 U.S.C. §1983 for

deliberate indifference in failing to take any corrective

action whatsoever when he knew of a pattern of vio-

lent behavior by his subordinate which was likely to

cause and did cause injury and death. When he wit-

nessed or was told of excessive force being applied by

his subordinate, the supervisor would laugh and joke

about it, often in the presence of his subordinate.

The Fourth Circuit decision followed the principles of

supervisory liability established by this Court in Rizzo v.

Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561

(1976), and is consistent with the Fourth Circuit’s own

precedent in Slakan v. Porter, 737 F.2d 368 (4th Cir.

1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413,

84 L.Ed.2d 796 (1985), Avery v. County of Burke,

660 F.2d 111 (4th Cir. 1981), Orpiano v. Johnson, 632

F.2d 1096 (4th Cir. 1980), cert. dented, 450 U.S. 929,

101 S.Ct. 1387, 67 L.Ed.2d (1981), Withers v. Levine,

9

615 F.2d 158 (4th Cir. 1980) and the various circuit

court decisions applying Rizzo.

The decision below does not conflict with this Court’s

decision in Martinez v. California, 444 U.S. 277, 100

S.Ct. 553, 62 L.Ed.2d 481 (1980) because it does not

involve the state’s liability for the actions of private

citizens, remote in time and circumstance from state

action.

The facts of this case are simple and straightforward,

though extraordinary in the egregious and brutal con-

duct involved. The principles of law are well established

and correctly decided. Moreover, this is a case that has

not yet gone to trial. The court below simply decided

on a motion for summary judgment that the case should

be submitted to a jury to decide the issues of liability

of a state trooper and one of his supervisovs. There is

no reason to grant certiorari on these facts, these issues,

nor this procedural posture.

I.

BY IMPOSING SUPERVISORY LIABILITY UPON A

SUPERVISOR WHO APPROVED, CONDONED, LAUGHED

AND JOKED ABOUT A PATTERN OF VIOLENT CON-

DUCT OF AN OFFENDING SUBORDINATE, THE CIR-

CUIT COURT CORRECTLY APPLIED ESTABLISHED

LEGAL PRINCIPLES TO AN APPROPRIATE FACTUAL

SETTING.

Petitioner Stroud, who supervised trooper Alfred Mor-

ris for five years before Morris violently shot and killed

Sidney Bowen, had personally witnessed Morris using

excessive force on a number of occasions. On other

occasions, victims of Morris’ violence had complained or

attempted to complain to Stroud about Morris’ abuse.

Stroud sometimes laughed in the face of the victim and

10

at other times joked about Morris’ conduct. At no time

did Stroud reprimand Morris or even speak disapprov-

ingly about his conduct. Stroud also knew or reason-

ably should have known that Morris had a substantially

disproportionately high number of charges of assault

and resisting arrest against those persons whom he

arrested compared to the other troopers in his unit.

As noted by the Court of Appeals, “‘. . . the statistical

evidence speaks for itself: during Stroud’s tenure as

first sergeant of Troop B-V (two line sergeants and

twenty troopers), Morris instituted twenty-six of the

fifty-five charges of assault on a law enforcement officer

and resisting/delaying/obstructing an officer.”” Shaw,

13 F.3d at 800.

Stroud should have foreseen what a state district

court judge, who only saw Morris in court, foresaw and

complained about. Judge Eugene Gore, less than six

months after Stroud was transferred, told a line sergeant

that over the past eighteen months in his courtroom,

trooper Morris had case after case involving the use of

excessive force upon arrestees, particularly those who

were Black or lower income. Judge Gore stated that it

was just a matter of time before someone would be

seriously injured as a result of Morris’ conduct. The

judge had seen the same pattern of conduct that Stroud

had seen and been told about. Nine months after Judge

Gore’s complaint, Morris shot and killed an unarmed

Sidney Bowen. The Court of Appeals recognized that

under these circumstances, a reasonable jury could con-

clude that there was an affirmative causal link between

Stroud’s conduct and Bowen’s death. Rizzo v. Goode,

supra; Slakan v. Porter, supra.

Petitioner seeks to elevate the single fact of the pas-

sage of time in this case above all other facts and cir-

11

cumstances in an attempt to create a conflict between

this case and this Court’s decision in Martinez v. Cali-

fornia, when in fact no conflict exists at all.

Martinez addressed the issue of remoteness in the

context of the responsibility of the state to the survivors

of a victim murdered by a parolee who had been released

five months before and over whom the State had no

control. Martinez turned on the relationship between the

parolee and the State, rather than the lapse of time

between the parolee’s release and the commission

of the crime. The Court noted:

Although the decision to release Thomas was

action by the State, the action of Thomas five

months later cannot be fairly characterized as

state action. . . . [The victim’s] life was taken by

the parolee five months after his release. He was

in no sense an agent of the parole board. Martinez,

44 US. at 285-86, 62 L.Ed.2¢d at 489.

In the present case, Bowen’s life was taken by an agent

of the State, the same agent who had engaged in a con-

tinuing pattern of violent conduct which had gone

unchecked and uncorrected by Stroud.

The majority opinion below specifically addressed the

issue of the passage of time:

Stroud contends that, because he transferred fifteen

months before the Bowen incident, there is no

affirmative causal link to the harm suffered by

Bowen. We believe our discussion in Slakan fore-

closes Stroud’s argument. In Slakan, we determined

that the causal link in §1983 cases is analogous to

proximate cause. In other words, Stroud is liable

for the ‘natural consequences of his actions.’ . . .

Notwithstanding the fifteen month gap, Bowen’s

death was a natural and foreseeable consequence

of Stroud’s failure to investigate, or even to address,

the pervasive violent propensities of one of his

12

officers. Because Stroud was aware of Morris’ fre-

quent use of excessive force, it follows that he knew

that Morris’ unchecked service on the force posed a

constant and dangerous threat to the welfare of

arrestees. 13 F.3d at 800.

Martinez did not purport to substitute an arbitrary

and fixed time period for the traditional tort principle

that lapse of time is only one of many factors to be con-

sidered by the jury on the issue of proximate cause.

The circuit court decisions relied upon by Petitioner

all recognized that Martinez was not an attempt to

establish a brightline time period after which causation

could no longer be found, but rather provided an anal-

ysis of the State’s responsibility for the actions of third

party private citizens who are not state actors. In

Humann v. Wilson, 696 F.2d 783 (10th Cir. 1983), a

case involving a rape committed by a parolee within two

months after his release, the court observed in finding

state action too remote: “The remoteness discussed in

Martinez was not simply a matter of time.” Jd. at 784.

That court noted that the parolee was not an agent of the

State and did not have any special relationship with the

victim. In Fox v. Custis, 712 F.2d 84 (4th Cir. 1983),

a case involving injury by a parolee one month after his

release and while he was still under the State’s supervis-

ion, the court found the injury too remote because the

State had no duty to protect members of the public

from the actions of criminals in the absence of a special

relationship creating such a duty: “The claimants here

were simply members of the general public, living in

the free society, and having no special custodial or other

relationship with the state.’’ Jd. at 88. In Janan v.

Trammell, 785 F.2d 557 (6th Cir. 1986), another case

13

finding remoteness in parolee inflicted injury less than

two months after release, the court stated:

Scruggs [the parolee] was not a state officer and

could not be said to be acting under color of state

law. .. . We do not believe that the Supreme Court

intended to provide us with a due process time-

table such that a five-month gap does not deprive

one of due process rights while a two-month gap

automatically does. . . . Rather, the proper analysis

is whether a special relationship exists between the

criminal and the victim or between the victim and

the state or whether there is some showing that

the victim, as distinguished from the public at

large, faces a special danger by the parolee’s release.

Id. at 559-60.

The Ninth Circuit applied a similar analysis in finding

injury inflicted by a prison escapee in less than three

months after escape too remote for liability under

§1983. Ketchum v. Alameda County, 811 F.2d 1243

(9th Cir. 1987). Addressing Martinez, the court reas-

oned: “In discussing remoteness, the [Martinez] Court

considered not only the lapse of time, but also the fact

that the decedent did not stand in any special relation-

ship to parolee from which the state officers might

have inferred a special danger to her, distinguishable from

the danger the public at large faces from parolees.’’ Jd.

at 1245.

No court has applied Martinez for the proposition

claimed by the Petitioner. There is no need to grant

certiorari to address a principle which is clear to all of

the circuit courts, but not clear to the Petitioner.

14

Il.

THERE IS NO CONFLICT AMONG THE CIRCUITS ON

THE STANDARD FOR SUPERVISORY LIABILITY.

Petitioner seems to concede that there is no conflict

among the circuits on the standard for supervisory lia-

bility by stating: “The Circuit courts have adopted

similar standards, but not identical, to that relied upon

by the Fourth Circuit in determining supervisory liabil-

ity.” (Pet. for Cert. at 16). But at the same time, Peti-

tioner asks for review of those standards, for reasons

that are unclear. There is no reason for this Court to

review the question of supervisory standards when the

circuit courts are in general agreement on those stand-

ards.

In Rizzo v. Goode, supra, this Court set the general

standard for supervisory liability, requiring an “affirma-

tive link’’ between the acts of individual officers and the

direct or tacit approval by their supervisors. The verbal

formulations of this concept have not been identical

among the circuits, but in practical terms the underlying

concept is similar in virtually all of the circuits. Hays v.

Jefferson County, Ky., 668 F.2d 869 (6th Cir. 1982).

See Gaudreault v. Municipality of Salem, Mass., 923 F.2d

203 (ist Cir. 1990); Meriwether v. Coughlin, 879 F.2d

1037 (2nd Cir. 1989); Black v. Stephens, 662 F.2d 151

(3rd Cir. 1981); Slakan v. Porter, supra; Doe v. Taylor

Independent School Dist., 15 F.3d 443 (5th Cir. 1994);

Fruit v. Norns, 905 F.2d 1147 (8th Cir. 1990); Howard

v. Adkison, 887 F.2d 134 (8th Cir. 1989); Hampton v.

Hanrahan, 600 F.2d 600 (7th Cir. 1979); Woodward v.

City of Worland, 977 F.2d 1392 (10th Cir. 1992); and

Fundiller v. City of Cooper City, 777 F.2d 1436 (11th

Cir. 1985).

Se nl

15

The slight variations in the verbal formulation of the

concept of supervisory liability have not prevented the

circuit courts from achieving a remarkably uniform

application of the doctrine. Rizzo has provided suffi-

cient guidance for the circuit courts to enable them

to apply a substantially uniform standard of supervis-

ory liability. Contrary to Petitioner’s assertion, the

opinion below does not have any widespread impact

upon supervisory officials because it does not change

the standard. This case is just one example applying to

a particular, albeit egregious, factual situation. Further

review of that standard is neither necessary nor approp-

riate.

III.

PETITIONER STROUD’S APPROVAL AND ENCOUR-

AGEMENT OF MORRIS’ VIOLENT UNCONSTITUTION-

AL CONDUCT COULD REASONABLY BE CONSIDERED

A PROXIMATE CAUSE OF SIDNEY BOWEN’S DEATH,

NOTWITHSTANDING STROUD’S TRANSFER BEFORE

THE ULTIMATE EVENT.

Even though the Fourth Circuit did not hold Stroud’s

successor, Smith, liable under §1983, the court recog-

nized that Stroud’s transfer and Smith’s supervision of

Morris did not insulate Stroud from liability. The major-

ity opinion below recognized that Smith “arguably

exhibit[ed] deliberate indifference,’’ but found that he

was entitled to qualified immunity because he followed

“standard operating procedures.” 13 F.3d at 802-03.

The dissenter even felt that Smith himself was deliber-

ately indifferent and was liable for Sidney Bowen’s death.

Id. at 806. It is therefore clear that Smith’s supervision

of Morris left much to be desired. No matter how

Smith’s supervision is viewed, it cannot be said to be

corrective or curative of the pattern of violent, uncon-

16

stitutional conduct which Morris established with

Stroud’s approval and encouragement during Stroud’s

tenure.

The question of intervening cause is, at base, a ques-

tion of proximate causation which must be viewed

against the traditional tort background of foreseeability.

Rieser v. District of Columbia, 563 F.2d 462 (D.C. Cir.

1977). “If a negligent, intentional or even criminal

intervening act or end result was reasonably foreseeable

to the original actor, his liability would not ordinarily

be superseded by that intervening act. In such circum-

stances, the two acts are usually concurrent causes of

the injury.”” Jd. at 479-80. Proximate cause, includ-

ing intervening cause, is ordinarily a question of fact for

the jury. Jd. at 480.

Petitioners’ request of this Court to determine whether

Stroud’s transfer and Smith’s intervening supervision

absolve Stroud of liability is simply a thinly-veiled

attempt to have this Court resolve a question of prox-

imate causation which is normally left to the jury.

The fact that Stroud was not supervising Morris on

the date that Morris shot and killed Bowen is not disposi-

tive of Stroud’s liability. In Haynesworth v. Miller, 820

F.2d 1245 (D.C. Cir. 1987), the D.C. Circuit dismissed

one chief of police who took office “as the events in

question drew to a close,”’ and because the plaintiff

did not “allege any failing on his part.” Jd. at 1259,

but held that his predecessor could be held liable under

supervisory liability if he breached his duty to supervise

and proximately caused the plaintiff’s injury. Jd. at

1259-60. In Martinez Correa v. Lopez Feliciano, 759

F.Supp. 947 (D. Puerto Rico 1991), the court refused

to grant the defendant’s motion for summary judgment

A Se TON Nl nt oar SRE

17

on supervisory liability, although he was not respon-

sible for supervising the offending officer on the date

the injury occurred.

The fact that Stroud was not Morris’ supervisor at

the time Morris inflicted the fatal injury is a factor which

the jury should consider in determining proximate cause,

but is not by itself 1 reason to conclude that there can

be no such causation. Stroud’s claim that he had no con-

trol over Morris afier Stroud’s transfer has a hollow ring

when considered against the fact that he only laughed

and joked about Morris’ violence before the transfer.

Even so, he still could have asked for an investigation

into Morris’ conduct at any time after the transfer, but

he never did.

All of the judges who have considered this question,

including the district court and the dissenting judge

below, have agreed that there is supervisory liability in

this case. The only question has been which supervisor

is liable. All of the judges, except the dissenter, have

agreed that Stroud is liable. The dissenting judge felt

that Smith, rather than Stroud, is liable. Stroud seeks

a result which would find neither supervisor liable.

That would indeed be a miscarriage of justice. Certior-

ari should not be granted to determine the question of

proximate cause in this case.

18

IV.

PETITIONER STROUD IS NOT ENTITLED TO QUALI-

FIED IMMUNITY BECAUSE THE STANDARDS FOR

EXCESSIVE FORCE AND SUPERVISORY LIABILITY

WERE CLEARLY ESTABLISHED AT THE TIME OF

STROUD’S TENURE.

The court below correctly concluded that the Bowen

Estate made the necessary showing to overcome Stroud’s

claim of qualified immunity. Stroud made a two-pronged

claim for qualified immunity. He first claimed that the

law of supervisory liability was not clearly established

and, alternatively, he claimed that the law on excessive

force was not clearly established. He was wrong on beth

counts. The law of supervisory immunity was clearly

established in the Fourth Circuit by 1984 when Slakan

v. Porter, supra, held that a supervisor who was deliber-

ately indifferent in the face of a pervasive and unreason-

able risk of harm could be held liable under §1983. It

was, therefore, clearly established during Stroud’s tenure

as Morris’ supervisor that Stroud could be held liable

for Morris’ conduct. Stroud’s tenure stretched from

1983 until the end of November, 1988. Most of Morris’

assaultive behavior occurred between May, 1987 and

November, 1988. In May of 1987, Morris assaulted

Walker and called Menser a “nigger.” In July, 1987,

Morris assaulted Ward. In March, 1988, Morris assaulted

James and in July, 1988, Morris assaulted Cothren.

Tennessee v. Gardner, 471 U.S. 1 (1985), clearly

established the principle that an arrestee had a constitu-

tional right to be free from the use of excessive force by

police officers making arrests. The Fourth Circuit had

also decided Bailey v. Turner, 736 F.2d 963 (4th Cir.

1984) and Justice v. Dennis, 834 F.2d 380 (4th Cir.

1987), two cases which established that the use of

19

excessive force exceeded constitutional bounds. Morris

engaged in a course of conduct where he severely beat

several arrestecs who were unarmed and who did him

no harm.

No reasonable officer with the information that

Stroud possessed could believe that his actions in wink-

ing, nodding, laughing and joking at complaints of sev-

erely excessive force could be lawful.

The facts of this case add nothing to the jurisprudence

of qualified immunity. This was a situation where a

police officer engaged in a pattern of egregious conduct

in severely beating those whom he arrested. His super-

visor knew about it, but took no action. Instead, he

laughed and joked about it. There is nothing worthy

of certiorari about this unique set of facts.

20

CONCLUSION

This case presents simple issues and well-established

principles of supervisory liability, proximate cause and

qualified immunity, all of which were decided in accord-

ance with existing precedent. There are no conflicts

among the circuits regarding any of the issues involved

in this case.

For the foregoing reasons, respondents ask this Court

to deny the petition for a writ of certiorari.

Respectfully submitted,

JAMES E. FERGUSON, II

ANITA S. HODGKISS

FERGUSON, STEIN, WALLAS,

ADKINS, GRESHAM

& SUMTER, P.A.

700 East Stonewall Street

Suite 730

Charlotte, North Carolina 28202

(704) 375-8461

Attorneys for Respondents.

June 30, 1994

i,

21

CERTIFICATE OF SERVICE

I, James E. Ferguson, II, do swear or declare that on

this date, the 30th day of June, 1994, pursuant to Sup-

reme Court Rules 29.3 and 29.4, I have served the

attached Respondents’ Brief In Opposition on each party

to the above proceeding, or that party’s counsel, and on

every other person required to be served by depositing

in an envelope containing the above documents in the

United States Mail properly addressed to each of them

and with first-class postage prepaid.

The names and addresses of those served are as fol-

lows:

MR. RUDOLPH A. ASHTON, III

Sumrell, Sugg, Carmichael & Ashton, P.A.

310 Broad Street, Post Office Drawer 847

New Bern, North Carolina 28563

MR. SAMUEL T. CURRIN

Chocklett & Currin

Suite 500

3100 Smoketree Court

Raleigh, North Carolina 27604

MR. ISAAC T. AVERY, III

MS. LINDA ANNE MORRIS

N.C. Department of Justice

512 N. Salisbury St. First Floor

Raleign, North Carolina 27604

MR. NORMAN B. KELLUM, JR.

Beaman, Kellum, Hollows & Jones

Post Office Box 866

New Bern, North Carolina 28560

22

MR. JAMES M. KIMZEY

McMillan, Kimzey & Smith

Post Office Box 150

Raleigh, North Carolina 27602

This the 30th day of June, 1994.

FERGUSON, STEIN, WALLAS, ADKINS,

GRESHAM & SUMTER, P.A.

Attorneys for Respondents

By: James E. Ferguson, II

NC State Bar No. 1434

700 East Stonewall Street, Suite 730

Charlotte, North Carolina 28202

Telephone: 704/375-8461