Opposition Brief — DeMaria v. Washington County

No. 97-1902

In The

Supreme Court of the United States

October Term, 1997

a

ANTHONY M. DEMARIA and KATHY L. DEMARIA

husband and wife; TONY DEMARIA, JR.; and

KOHN JOSEPH DEMARIA, by and through

ANTHONY M. DEMARIA, Guardian Ad Litem

WASHINGTON COUNTY; WASHINGTON COUNTY

BOARD OF COMMISSIONERS DON STEPHENS

MILDRED HORTON, RONALD POUND; SHERIFI

DEPARTMENT OF WASHINGTON COUNTY

IM NELSON AND MICHAEL WADLEY; and

JOHN DOES 1 THROUGH 10

+

Om Petition For Writ Of Certiorari

fo The United States Court Of Appeals

For The Ninth Circuit

- 4

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

€

James J. Dav

Attorney at Law

406 W. Franklin Street

P. ©. Box 1517

Boise, Idaho 83701-1517

lelephone (208) 336-3244

Counsel of Record for

emit Mart bea,

TABLE OF CONTENTS

Page

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A. STATEMENT OF FACTS... 0.5.6 ccck dc cccns. 2

B. PROCEEDINGS AND DISPOSITION IN

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SUMMARY OF ARGUMENT....................... 7

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I. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE THE ISSUE PRE-

SENTED IS NOT SUFFICIENTLY IMPORTANT TO

WARRANT THIS COURT’S REVIEW

fl. THE PETITION FOR WRIT OF CERTIORARI

SHOULD BE DENIED BECAUSE THERE IS NO

LEGAL CONFLICT BETWEEN THE SECOND,

EIGHTH AND NINTH CIRCUITS ON THE PAR-

TICULAR ISSUE RAISED. THE PETITION

ACTUALLY CHALLENGES THE NINTH CIR-

CUIT’S CORRECT APPLICATION OF

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TABLE OF AUTHORITIES

CASES

Balistreri v. Pacifica Police Department, 901 F.2d 696

(9th Cir. 1990).

Cornelius v. Town of Highland Lake, 880 F.2d 348

(lith Cir. 1989), cert

DeShaney Serv.,

v. Winnebago Soc

(1989) .

j “a ~~ a. -*

Dwares 7

1993)

City of New York, 985 F.2d 94 (2nd Cir.

Freeman v0

Ferguson, 911 F.2d 423 (8th Cir. 1990).

Gregory v. City of Rogers, Ark., 974 F.2d 1006 (8th

Cir. 1992), cert. denied, 507 U.S. 913 (199)

Johnson v. Dallas Independent School Dist., 28 F.3d

198 (5th Cir. 1994), denied, 514 US. 1017

CROOED. kw cw mcwbincnvaccsbaee a eee Ss

cert

L.W 974 F.2d 119 (9th Cir.

denied 508 L S 951 (1993) a

Grubbs,

L.W Grubbs, 974 F.2d 119 (9th Cir. 1992), cert.

denied, 508 U.S. 951 (1993), on remand, *2 F.3d

0064 (OG Cie. BOREOS . cock xe avlenkees eee es

Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir.

1995), cert. denied, 516 U.S. 858 (1995) Ss ae ete

Pinder v. lohnson, 54 F.3d 1169 (4th Cir. 199), cert.

denied, 516 U.S. 994 (1995)

Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), cert.

dented, See US. Say Caer ccavscecsbamernese cs

Soto v. Flores, 103 F.3d 1056 (1st Cir. 1997), cert.

denied, (1997) ....

ae

denied, 494 U.S. 1066(1990) ....

Page

11

passim

ill

TABLE OF AUTHORITIES —- Continued

Page

Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995), cert.

er, Teen ES, WO RO RD «ss aon o's Une ade wav see 11

United States v. Lanier, 520 U.S. 259 (1997)........... 15

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert.

ee Se ES OD. ss wc ks kk ccc sacuacess 10

STATUTES

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a Ue Ys eS c vce kab w ee «ees Sea ieeaee 1, 4

ee a ds shiek ese n vee Ko ee vues de Os 1, 4

I Set ae eg ec a a's wale a owe Awan wie 6

SY EE SO WO ica canes vesscvectecke ee Peek

pupeemne Court Ruse 10fa) ...... d.--- ccc eeccees 11

STATEMENT OF THE CASE

This is a civil rights action brought pursuant to 42

U.S.C. §§ 1983, 1985, and 1986, seeking monetary dam-

ages for the alleged violation of Petitioners’ (collectively

“DeMarias”)! Fourteenth Amendment rights. The alleged

violation of rights stems from a fight which occurred

between some of the DeMarias and their neighbors (col-

lectively “Sorensons”)? on March 27, 1993.

DeMarias sued Respondents (collectively “Washing-

ton County”), asserting that despite Washington

County’s prior knowledge of problems between

DeMarias and Sorensons, Washington County did noth-

ing to protect DeMarias. DeMarias assert that Washington

County had a duty to protect them from Sorensons.

Washington County moved for summary judgment

on the basis that under DeShaney v. Winnebago Soc. Serv.,

489 U.S. 189 (1989), it owed no duty to protect DeMarias

from Sorensons. The District Court granted Washington

County summary judgment. Relying upon DeShaney, the

District Court held Washington County’s alleged acquies-

cence in the dispute did not create the danger DeMarias

faced. Therefore, Washington County owed no duty to

' Petitioners are Anthony M. DeMaria, Kathy L. DeMaria,

Tony DeMaria, Jr., and John Joseph DeMaria, by and through

Anthony M. DeMaria, Guardian Ad Litem.

* The neighbors were Tom Sorenson and Kevin Sorenson.

Sorensons are not parties to this litigation.

* Respondents are Washington County; Washington

County Board of Commissioners Don Stephens, Mildred

Horton, Ronald Pound; Sheriff's Department of Washington

County; Sheriff Michael Wadley; and undersheriff Jim Nelson.

ho

Protect DeMarias from Sorensons. Petition for Writ of

Certiorari, Appendix B, PP- 13-17. A Ninth Circuit pane]

affirmed. Id. Appendix A, A Petition for Rehearing was

denied and no Ninth Circuit judge requested a vote on a

Suggestion for rehearing en banc. Id., Appendix D. Peti-

tioners seek a writ of certiorarj from the Ninth Circuit's

decision.

A,

STATEMENT OF FACTS

The March 27, 1993, fight resulted from an

impromptu event between neighbors who apparently

detested each other. Tony DeMaria, Jr., was in a vehicle

Proceeding toward the DeMaria home in Weiser, Idaho.

Tom Sorenson was driving a Vehicle in the Opposite direc-

tion. When the two vehicles Passed each other, Tom Sore-

Nson raised his fist at Tony DeMaria, Jr. Tony DeMaria,

Jr, “flipped off” Tom Sorenson. Tom Sorenson turned his

vehicle around and followed Tony DeMaria, Jr., to

DeMarias’ house where the fight broke out. The fight

eventually included aS Participants three DeMarias and

Sorensons,

Washington County law enforcement officers investj-

gated the fight. Four days later, the County prosecutor

charged Kevin Sorenson with a felony and charged Tom

Sorenson with two misdemeanors. The criminal] charges

against Kevin Sorenson resulted in a plea agreement

Which reduced his charge to misdemeanor battery. He

pled guilty. Tom Sorenson had a jury trial with the jury

tinding him Suilty of disturbing the peace.

CC ee

While DeMarias’ Claim arises from the fight of March

Y «2 1993, the StTavamen of their Complaint concerns

events which Preceded the fight. DeMarias now4 charac-

terize the critica] Pre-fight facts as follows: Their neigh-

bors verbally harassed and threatened them. Petition for

Writ of Certiorari, p. 8. Washington County took “no

action” against the neighbors. [q. Instead, Washington

County “fraternized” and “encouraged” Sorensons, Id.

The sheriff Purportedly told Anthony DeMaria that the

Sheriff's office Would not Protect him and did not want

him in the community. Id. After the March 27, 1993, fight,

DeMarias State the sheriff's department's investigation

was biased.5 Id., at 10. Further, Washington County con-

tinued to “celebrate and fraternize” with Sorensons. Id.

retina,

* DeMarias’ characterization of the facts has §TOWn, as has

their imagination, as time has Passed. See, for example, the

District Judge’s characterization of the new allegations in

DeMarias’ Amended Complaint. Petition for Writ of Certiorarj,

Appendix B, P- 11 and pp. 12-13 As further example, DeMarias’

counsel was asked at oral argument before the Ninth Circuit

Panel to °UPPport assertions made in DeMarias’ briefing.

Counsel was not able to do so. Many of the allegations made in

the Petition before this Court are the Same as were made to the

Ninth Circuit. DeMarias’ characterization of the facts Should be

viewed skeptically. The District Court’s factual findings are

more accurate. ld., Appendix B, pp. 6-8. In any event, even

DeMarias’ MOst recent factual account in the Petition does not

Warrant the iMposition of a duty to Protect under DeShaney.

> If the investigation Was biased, why did it result in

charges being brought against Sorensons?

.......

B.

PROCEEDINGS AND DISPOSITION

IN LOWER COURTS.

The course of proceedings is remarkable in that six

different federal judges have considered DeMarias’ alle-

gations and determined Washington County owed no

duty to protect DeMarias from their neighbors. DeMarias’

Complaint was filed June 29, 1993. Washington County

immediately moved to dismiss the Complaint on the

basis that under the facts alleged it had no affirmative

duty under the Fourteenth Amendment to protect

DeMarias from their neighbors. A magistrate judge heard

and decided Washington County’s Motion to Dismiss.

The Magistrate Judge recommended that the Motion to

Dismiss be granted as to the § 1983 claims; but the

Magistrate allowed DeMarias ten days within which to

amend their Complaint as to the § 1985 and § 1986 claims.

Since DeMarias objected to the Magistrate’s Report

and Recommendation, a United States District Judge

reviewed the Report and Recommendation. He dismissed

the Complaint and allowed DeMarias 20 days to file an

amended complaint. The dismissal was granted on the

basis that Washington County did not owe DeMarias a

duty under the Fourteenth Amendment to protect them

from their neighbors. The District Court did permit

DeMarias to file an amended complaint because he could

envision circumstances where a cause of action under

§ 1983 and § 1985 could be alleged.

DeMarias filed an Amended Complaint. The gist of

the new allegations in the Amended Complaint was that

Washington County “affirmatively placed” DeMarias in a

position of danger by communicating to local law

enforcement and DeMarias’ neighbors that DeMarias’

complaints would not be investigated and DeMarias

would not be protected from their neighbors. Washington

County filed a Motion for Summary Judgment. The

Motion again raised the issue of Washington County’s

duty to protect DeMarias from their neighbors. DeMarias

waited until two days before the hearing to file an oppo-

sing memorandum and affidavits. The hearing was

rescheduled. One-half hour before the second hearing,

DeMarias filed yet another affidavit. Washington County

moved to strike blatant hearsay from DeMarias’ affidavits

and moved to strike one affidavit because it was

untimely.

The United States District Judge, the third federal

judge to consider DeMarias’ allegations, granted the

Motion for Summary Judgment and granted the Motion

to Strike. The District Judge concluded that under

DeShaney there was no duty owed by Washington County

to protect DeMarias from Sorensons. Moreover, the Dis-

trict Court held that to the extent DeMarias’ Amended

Complaint could be construed to include an Equal Protec-

tion Claim, the claim was waived and/or there was no

competent evidence to support it. Finally, in granting the

Motion to Strike, the District Judge struck the hearsay

statements and the untimely filed affidavit.

DeMarias filed two Motions for Reconsideration. One

Motion addressed the propriety of granting summary

judgment. The other Motion addressed the propriety of

granting the Motion to Strike. For relief, DeMarias, in

part, sought to continue the hearing on the Motion for

Summary Judgment to develop new evidence. The Court

denied the Motions to Reconsider.

DeMarias filed a Notice of Appeal. The Ninth Circuit

pane: affirmed summary judgment on the basis that

DeMarias could not demonstrate facts warranting imposi-

tion of a duty to protect under the Fourteenth Amend-

ment. Petition for Writ of Certiorari, Appendix A, p. 3.

The panel held neither DeMarias nor Sorensons were

within the control of Washington County. Further, there

was no evidence that Washington County told Sorensons

that DeMarias would go unprotected. Id. Moreover, the

Ninth Circuit panel held the District Court did not abuse

its discretion in striking rank hearsay from DeMarias’

affidavits, in striking the untimely filed affidavit, in

denying an untimely Motion under Federal Rule of Civil

Procedure 56(f) for additicnal time, and in denying the

Motions to Reconsider. Id., at pp. 3-5. DeMarias’ Motion

for Reconsideration With Suggestion for Rehearing En

Banc was denied. No Ninth Circuit Judge requested a

hearing on the suggestion for rehearing en banc. Id.,

Appendix D, p. 31.

Thus, six federal judges have now considered

DeMarias’ claims and have unanimously held that

DeMarias’ facts are not sufficient to rise to the level of

creating a duty to protect under DeShaney.

*

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari, which addresses

the Fourteenth Amendment Due Process Claim,® should

be denied because:

1. The issue presented is not sufficiently important

to warrant this Court’s review. In DeShaney, this Court

held that a governmental actor, except under limited

circumstances, owes no duty under the Due Process

Clause to protect one citizen from the actions of another.

Since DeShaney, numerous petitions for writ of certiorari

have been sought from cases addressing the parameters

of this Court’s holding. All of the petitions have been

denied. There is nothing about DeMarias’ Petition that

warrants different treatment.

2. Contrary to Petitioners’ arguments, there is no

conflict between the Second, Eighth, and Ninth Circuits

on the particular issue raised. The legal rule applied in

6 The Petition also raises “procedural and evidentiary”

questions which it asks this Court to consider if the Petition is

granted. Petition for Writ of Certiorari, p. 19. Since the pending

question is whether the Court will exercise its discretion to

grant certiorari, Washington County is addressing only the Due

Process Claim in this Brief. Had DeMarias independently

sought certification as to the procedural and evidentiary

questions, those questions would not present important

matters. Rather, those questions assert error amounting to

erroneous factual findings or abuse of judicial discretion. Thus,

the questions do not justify this Court’s review. Supreme Court

Rule 10. In addition, for purposes of this Brief Washington

County adopts the reasoning of the District Court and the Court

of Appeals as to those issues. Petition for Writ of Certiorari,

Appendices B and A, respectively.

each Circuit is the same. What DeMarias actually chal-

lenge is the application of their facts to the correctly

stated law. The Ninth Circuit correctly applied DeShaney

to hold that Washington County owed no duty to protect

DeMarias under the facts of this case.

¢

ARGUMENT

I.

THE PETITION FOR WRIT OF CERTIORARI SHOULD

BE DENIED BECAUSE THE ISSUE PRESENTED IS

NOT SUFFICIENTLY IMPORTANT TO WARRANT

THIS COURT’S REVIEW.

Following the seminal DeShaney decision, this Court

has been asked to review numerous Circuit Court rulings

applying DeShaney. Certiorari has been denied in each

instance. There is nothing about this Petition which war-

rants different treatment.

In DeShaney, this Court held that the Due Process

Clause does not impose upon government the obligation

to protect its citizens from each other.

[N]othing in the language of the Due Process

Clause itself requires the State to protect the life,

liberty, and property of its citizens against inva-

sion by private actors. The Clause is phrased as

a limitation on the State’s power to act, not as a

guarantee of certain minimal levels of safety

and security.

489 U.S. at 195.

The holding was applied to a factual scenario this

Court described as tragic. Id. at 191. For over two years

governmental employees were aware that Joshua

DeShaney was being abused by his father. Id. at 192-193.

When he was four years old, his father beat him so

severely that he fell into a life-threatening coma. Id. He

and his mother sued the governmental employees

involved, alleging that Joshua’s due process rights were

violated by the State actors’ failure “ . . . to intervene to

protect him against a risk of violence at his father’s hands

of which they knew or should have known.” Id. at 193.

This Court rejected the claim. “ . . . [W]e conclude that a

State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due

Process Clause.” Id. at 197.

This Court went on to address Joshua’s argument

that a “special relationship” was created when the State,

knowing of Joshua’s circumstances, attempted to protect

him. So, the argument went, when the State failed to

protect him, a substantive Due Process Claim arose. Id. at

197. This Court rejected the argument. It limited the

“special relationship” argument to “the limited circum-

stances” when a”... state takes a person into its custody

and holds him there against his will... .” Id. at 199-200.

The Court reasoned:

The affirmative duty to protect arises not from the

state’s knowledge of the individual’s predica-

ment or from its expressions of intent to help

him, but from the limitation which it has imposed

on his freedom to act on his own behalf.

Id. at 200 (emphasis added).

The Court rejected Joshua’s “special relationship”

argument on the basis that he was not in the custody of

10

the State at the time of his injuries. The State had not

limited his freedom to act on his own behalf. In that

context — that Joshua was not in the State’s custody — the

Court made a one-sentence statement which has become

the genesis in the Courts of Appeal for the so-called

“danger creation” exception to DeShaney. The Court said:

While the State may have been aware of the

dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do

anything to render him any more vulnerable to

them.

Id. at 201.

As noted, since DeShaney the Courts of Appeal have

interpreted the above-quoted language as recognizing cir-

cumstances when a governmental entity may have a duty

to protect one citizen from another, i.e., when the govern-

mental actor created the danger. For example, the Ninth

Circuit has identified two elements for application of the

danger creation exception: (1) the government entity

acted with deliberate indifference, and (2) the govern-

ment entity’s affirmative conduct placed the plaintiff in a

position of danger. Wood v. Ostrander, 879 F.2d 583 (9th

Cir. 1989), cert. denied, 498 U.S. 938 (1990); L.W. v. Grubbs,

974 F2d 119 (9th Cir. 1992), cert. denied, 508 U.S. 951

(1993), on remand, 92 F.3d 894 (9th Cir. 1996).

The inquiry — whether the government actor’s affir-

mative conduct is sufficient to create a danger and a

corresponding duty to protect — is by definition a factual

one. The focus is upon the governmental actor’s affirma-

tive conduct. What did the governmental actor do? If he

11]

acted, is the affirmative conduct sufficient to create a

danger?

Numerous cases have addressed these questions.

Certiorari has been sought several times and in each

instance, this Court has denied the petition.? DeMarias’

Petition does not warrant this Court’s review any more

than any prior petition addressing these questions. The

issue is not an important matter as required by Supreme

Court Rule 10(a).

? The following are recent representative cases in which

this Court denied certiorari where the Court of Appeals

addressed the duty to protect one citizen from another under

the Due Process Clause: Soto v. Flores, 103 F.3d 1056 (1st Cir.

1997), cert. denied, __ U.S. ___ (1997); Mark v. Borough of Hatboro,

51 F.3d 1137 (3rd Cir. 1995), cert. denied, 516 U.S. 858 (1995);

Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), cert. denied, 516

U.S. 994 (1995); Johnson v. Dallas Independent School Dist., 38 F.3d

198 (Sth Cir. 1994), cert. denied, 514 U.S. 1017 (1995); Reed v.

Gardner, 986 F.2d 1122 (7th Cir. 1993), cert. denied, 510 U.S. 947

(1993); Gregory v. City of Rogers, Ark., 974 F.2d 1006 (8th Cir.

1992), cert. denied, 507 U.S. 913 (1993); L.W. v. Grubbs, 974 F.2d

119 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993); UhIrig v.

Harder, 64 F.3d 567 (10th Cir. 1995), cert. denied, 516 U.S. 1118

(1996); and Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th

Cir. 1989), cert. denied, 494 U.S. 1066 (1990).

12

II.

THE PETITION FOR WRIT OF CERTIORARI SHOULD

BE DENIED BECAUSE THERE IS NO LEGAL CON-

FLICT BETWEEN THE SECOND, EIGHTH AND

NINTH CIRCUITS ON THE PARTICULAR ISSUE

RAISED. THE PETITION ACTUALLY CHALLENGES

THE NINTH CIRCUIT’S CORRECT APPLICATION OF

DeSHANEY.

The Petition states that there is an “apparent conflict”

in the Second, Eighth and Ninth Circuits in the “construc-

tion and application” of the phrase “ratify, condone or in

any way instigate” as that term has been applied to the

danger creation exception. Petition for Writ of Certiorari,

p. 20. A careful reading of the Petition reveals that there

is no legal conflict. Actually, DeMarias want this Court to

review the factual findings and apply those findings dif-

ferently than did the Ninth Circuit. At best, DeMarias

argue a misapplication of a correctly stated rule of law.

DeMarias do not identify legally inconsistent posi-

tions in the three Circuits. In fact, while they refer to an

“apparent conflict” (Petition for Writ of Certiorari, p. 18),

Petitioners make repeated reference to the commonality

in legal approaches taken by the three Circuits. For

instance, DeMarias criticize the District Court for failing

to“... apply language from post-DeShaney decisions in

the Ninth and other Circuits which define and elaborate

the ‘danger creation’ exception. ... ” Petition for Writ of

Certiorari, at p. 21. The Petition continues, “These cases

suggest that plaintiffs may preserve due process claims

.. if they plead... that defendants . . . did ‘anything’ to

‘ratify, condone or in any way instigate’ the abuses of the

private actor.” Id. (emphasis added). DeMarias then cite

3

Pi

rere

13

as authority cases from the Second Circuit, Dwares v. City

of New York, 985 F.2d 94 (2nd Cir. 1993), the Eighth Cir-

cuit, Freeman v. Ferguson, 911 F.2d 423 (8th Cir. 1990), and

the Ninth Circuit, Balistreri v. Pacifica Police Department,

901 F.2d 696 (9th Cir. 1990).8 Thus, DeMarias acknowl-

edge that the law in the three Circuits is consistent.

What is clear from reading the Petition is that

DeMarias are dissatisfied with the “application and con-

struction” of consistent law in the Circuits. They do not

challenge the rule of law which they contend has devel-

oped in the three Circuits. At best, they are arguing a

misapplication of a properly stated rule.? Such an argu-

ment does not warrant this Court’s consideration.

Supreme Court Rule 10.

Under the guise of a conflict in the law in three

Circuits, DeMarias actually are asking this Court to

review a properly and fairly decided matter. DeMarias’

evidence clearly brought their case within DeShaney’s

holding that governmental actors owe no duty to protect

one citizen from another.

8 DeMarias make further reference to the consistency of the

cases from the three Circuits: “ . . . Balistreri and its progeny in

the other Circuits ... ,” Id. at 22; “Freeman and Dwares each

develop and apply the language propounded by the Ninth

Circuit in Balistreri...,” Id. at 24; and “” ‘ratify’ or ‘condone’

which Freeman and Dwares borrowed from Balistreri.” Id. at

25-26.

° The Dwares and Freeman cases, upon which DeMarias so

heavily rely, are not legally inconsistent with Ninth Circuit

precedent. But, the cases are factually distinguishable from

DeMarias’ case. See, the District Court’s discussion of those

cases. Petition for Writ of Certiorari, Appendix B, pp. 16-17.

14

There is no dispute that the fizht that erupted on

March 27, 1993, was an impromptu event between neigh-

bors who had a history of not getting along with each

other. Moreover, there is no dispute that Washington

County was not present during the fight. DeMarias’ evi-

dence focuses upon Washington County’s failure to inter-

vene to prevent the neighbor’s dispute.!°

Washington County’s purported failure to intervene

and stop the neighbor’s from harassing each other is

virtually identical to the conduct of the Department of

Social Services in DeShaney. In DeShaney, it was alleged

that the State had knowledge of Joshua’s abuse for two

years. During that two years, the State had acted to

protect him. It had investigated Joshua’s abuse on several

occasions, removed Joshua from his father’s home,

returned him to his father’s care, imposed counseling

requirements on Joshua’s father, and imposed monthly

social worker contact at Joshua’s home. Despite the

State’s contact with Joshua, and its failure to intercede on

his behalf, the Court held there was no duty to protect

him from his father. That was so because the State only

has a duty to protect when it imposes a limitation on the

10 DeMarias have over time made scandalized accusations

to enlarge Washington County’s role in the fight. See, Petition

for Writ of Certiorari, Appendix B, pp. 12-13. The allegations

have never been supported by competent evidence.

Furthermore, DeMarias offered rank hearsay to support their

Equal Protection Claim. The hearsay was appropriately

stricken. Id. at pp. 18-20. Thus, despite DeMarias’ attempts to

expand Washington County’s role, they have never offered

competent evidence to support those allegations.

15

ability of the individual to act on his own behalf.

DeShaney, supra, at 200."!

The District Court granted summary judgment to

Washington County because Washington County did

nothing to limit DeMarias’ ability to act on their own

behalf. As stated by the District Judge:

Assuming that the DeMarias’ allegations are

true, they do not rise to the level required by the

Due Process Clause. Nothing in the record indi-

cates that the Defendants affirmatively created

any dangerous situation. The danger was affir-

matively created by Sorensons. The DeMarias

were never dependent and he!pless. Assuming

that Sheriff Wadley and Deputy Nelson ignored

the DeMarias’ pleas for help, their passivity is

not the “affirmative creation of a dangerous sit-

uation” required by the case law.

The DeMarias claim that Sheriff Wadley and

Deputy Nelson affirmatively created a danger

by letting the Sorensons get away with outra-

geous physical and verbal abuse, thereby essen-

tially encouraging that abuse. But this argument

flies in the face of DeShaney. The county defen-

dant let the abusive father get away with multi-

ple beatings of his child. Certainly, the abusive

father could be said to have been emboldened

by the county’s “acquiescence-by-silence.” But

the Supreme Court dismissed the suit anyway,

holding that the Due Process Clause was not

violated when the “state functionaries . . . stood

11 This Court recently confirmed that DeShaney limits the

duty to protect to circumstances where the victim is in the

State’s custody. United States v. Lanier, 520 U.'5. 259 (1997).

16

by and did nothing when suspicious circum-

stances dictated a more active role for them.” Id.

at 203.

Petition for Writ of Certiorari, Appendix B, pp. 15-16.

In affirming the District Court, the Ninth Circuit

panel correctly held that Washington County did not

exercise control over DeMarias or Sorensons. There was,

therefore, no duty to protect. The Ninth Circuit panel

applied the appropriate law to the facts found by the

District Court. The decision was proper and fair based

upon DeMarias’ evidence.

Finally, it should be noted that DeMarias’ argument

is inconsistent with DeShaney. The gist of DeMarias’ argu-

ment is that if a governmental actor does “anything” to

“ratify, condone or in any way instigate” the actions of

one citizen against another, the governmental actor is

liable. Petition for Writ of Certiorari, pp. 20-26.

DeMarias’ position cannot be reconciled with

DeShaney. As noted above, the governmental actors in

DeShaney were actively involved in investigating allega-

tions of abuse by Joshua’s father, including, removing

Joshua from his father’s care, imposing counseling

requirements on Joshua’s father, and imposing monthly

contact by a social worker. DeMarias’ argument would

impose liability on the State actors in DeShaney since they

did “something” to “instigate” Joshua’s abuses. Clearly,

DeMarias’ argument flies in the face of DeShaney.

+

a a ca a

17

CONCLUSION

The Petition for Writ of Certiorari should be denied

since it does not present an important matter; it does not

present a conflict of laws in the Circuits; and the Ninth

Circuit Court of Appeals properly and fairly decided the

appeal.

Respectfully submitted this 16th day of June, 1998.

Respectfully submitted,

James J. Davis

Attorney at Law

406 W. Franklin Street

P. O. Box 1517

Boise, Idaho 83701-1517

Telephone: (208) 336-3244

Counsel of Record for Respondents