# Petition for Writ of Certiorari — Hamilton County Department of Adult Probation v. Cash > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0988%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 546 U.S. 998 ## Text Supreme Court, U.S. FILED 041631 MAY 2 4 2005 NO. peice OF THE CLERK In the Supreme Court of the Anited States HAMILTON CouUNTY DEPARTMENT OF ADULT PROBATION; MICHAEL L. WALTON, Chief Probation Officer, Petitioners, Vv. GERALD CasH; CLARA Caso; GREGORY B. WAHOFF; Puituip GarcIA, and Rocky WAYNE ADKISSON, Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR WRIT OF CERTIORARI JosepH T. DETERS PROSECUTING ATTORNEY HAMILTON County, OHIO Davip T. STEVENSON Counsel of Record ASSISTANT PROSECUTING ATTORNEY 230 East NINTH STREET, Suite 4000 CINCINNATI, OH 45202 (513) 946-3120 Counsel for Petitioners Becker Gallagher Legal Publishing, Inc. 800.890.5001 i QUESTION PRESENTED Whether a county municipal government may be held responsible under 42 U.S.C. §1983 for participating in a lawful seizure of property that may have been ultimately unlawfully destroyed by another, unaffiliated governmental agency. li PARTIES TO THE PROCEEDING Petitioners are the Hamilton County (Ohio) Department of Adult Probation and Michael L. Walton, Chief Probation Officer. Respondents are Gerald Cash, Clara Cash,' Gregory B. Wahoff, Phillip Garcia, and Rocky Wayne Adkisson. In addition to these parties, the City of Cincinnati, Ohio was also a party to the proceedings below. ' Gerald and Clara Cash were killed in a fire during the course of the appeal to the Sixth Circuit. A suggestion of death was filed. No estate for either of the Cashes was opened or substituted as a party to the proceeding below. ne RULE 29.6 STATEMENT Petitioners are not required to file a Rule 29.6 Statement. — iV TABLE OF CONTENTS QUESTIONS PRESENTED ................... i PARTIES TO THE PROCEEDING ............. ii RULE 29.6 STATEMENT ................... iii TABLE OF CONTENTS ..................-. iv TABLE OF AUTHORITIES .................. vi PETITION FOR WRIT OF CERTIORARI ......... 1 ORR OIRO... 5. oe ences 1 I ei ae ol a 1 RELEVANT STATUTORY PROVISION ......... 1 STATEMENT OF THECASE ................ 6 REASONS FOR GRANTING THE WRIT ......... 10 I. CERTIORARI SHOULD BE GRANTED TO REMEDY THE SIXTH CIRCUIT’S DEPARTURE FROM THIS COURT’S EXPLICIT HOLDING IN MONELL JV. RAE 2 A Bess GT 6 ia ie hn eo 08 10 A. The Eleventh Circuit’s Decision in Church i SR os hs a ee eae 12 B. The Ninth Circuit’s Decision in Stone v. SE wag ca Ko Va eae eee ee 16 SI A A Rt ICE tn EAE 5s a Vv II. CERTIORARI SHOULD BE GRANTED AS THE SIXTH CIRCUIT’S DECISION CONFLICTS WITH DECISIONS OF THE NINTH AND ELEVENTH IPE wn 6h i Soto e ere m. The Court of Appeals used the phrase, “the City’s official policy,” rather than “the official policy of the City or the County.” Hamilton County apparently believes this was a judicial determination that it did not have a policy of destruction, and therefore cannot be held liable regardless of what happens on remand. However, it is doubtful that the characterization by the Sixth Circuit constitutes such a holding, and the City and the County will surely be blaming each other all the way through closing argument. There is no reason for the Court to try and resolve this factual issue. eww eee = Brief in Opp (Cert - COUNTY) 9/9/2005, Page 6 the uncontroverted evidence at the hearing was that these items are, and have always been, in the possession of the State, not the City.” Jd. Thus, the Eleventh Circuit never reached the issue of whether property of homeless ‘citizens may be destroyed without due process. Stone v. Agnos, 960 F.2d 893 (9" Cir. 1992), was primarily a First Amendment case asserting the right to sleep in a pubtic plaza. As to the alleged destruction of the plaintiff's property, his clamm against the individual officers failed for lack of any evidence of unreasonable destruction, id. at 895, while his claim against the municipality failed because he had conceded that the destruction “was contrary to city policy.” Id. at 896. This holding cannot be considered in conflict with the decision below, which returned the case to the district court for a decision by the trier of fact regarding the policy of destruction of property. Petitioner has not cited a single authority for the proposition that a municipality may destroy the property of individuals, whether or not they have homes, without providing some pre-destruction process. CONCLUSION For the foregoing reasons, the City of Cincinnati’s Petition for a Writ of Certiorari should be denied. Brief in Opp (Cert - COUNTY) 9/9/2005, Page 7 iB % sybmitted, ee Stephen R. Felson (0038432) 617 Vine Street, Suite 1401 Cincinnati, Ohio 45202 (513) 721-4900 (513) 639-7011 (fax) SteveF8953@aol.com Robert B. Newman (0023484) NEWMAN & MEEKS CO., LPA 617 Vine Street, Suite 1401 Cincinnati, Ohio 45202 (513) 639-7000 (513) 639-7011 (fax) ATTORNEYS FOR RESPONDENTS + - oe meee = = ere ee ae a pene sees Brief in Opp (Cert - COUNTY) 9/12/2005, Page 8 CERTIFICATE I, Stephen R. Felson, do hereby swear or declare that on this date, September 12, 2005, as required by Supreme Court Rule 29 I have served the enclosed Motion for Leave to Proceed Jn Forma Pauperis and Brief in Opposition to Certiorari on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing 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 follows: David T. Stevenson, 230 E. Ninth St., Suite 4000, Cincinnati, Ohio, 45202. I declare under penalty of perjury that the foregoing is true and correct. Executed on September 12, 2005. Oy. Stephen R. Felson nn ee eee eneiiiciveienatiinsdidinsaniiestnemeeetaimaneel --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0988%3A1. Public record. Not legal advice.