Amicus Curiae Brief — Brady v. Davis

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ae &

yw % No. 98-534

In The

Supreme Court of the United States

October Term, 1998

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PATRICK BRADY and SHAWN MURPHY,

Petitioners,

STEVERSON DAVIS,

Respondent.

4

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

¢

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF

AMICUS CURIAE OF THE MICHIGAN MUNICIPAL

LEAGUE IN SUPPORT OF PETITIONERS

¢

SUZANNE CAROL SCHUELKE, Eso. Patrick Levine Rose, Esa.

15703 Stonehouse Circle 230 N. Washington Sq.,

Livonia, MI 48154 Suite 306

(734) 462-4284 Lansing, MI 48933

Counsel of Record (517) 482-2422

for Amicus Curiae Co-Counsel for Amicus

Michigan Municipal League Curiae Michigan

Municipal League

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The Defendants have filed a Petition for a Writ of

Certiorari raising the three Questions repeated below.

Question #1: Whether the Fourteenth Amendment's

Due Process Clause imposes upon city police officers who

arrest a man for destruction of property belonging to a

homeless shelter and then transport him to another loca-

tion, a duty to protect that person from injury by third

persons after the officers have released the man from

custody, where the reason for releasing the man from

custody at another location was that the county jail

would not accept him because it was overcrowded, and

the arrested person stated that if released at the jail he

would return to the homeless shelter and destroy more of

its property?

Question #2: Whether the Court Below erred when it

evaluated the question whether a claim had been stated

under 42 U.S.C. 1983 for violation of the Fourteenth

Amendment's substantive Due Process guarantees using

a “deliberate indifference” standard, rather than the

“shocks the conscience” standard which this Court estab-

lished in County of Sacramento v. Lewis [__ U.S. __, 118

S. Ct. 1708, 140 L. Ed. 2d 1043] (May 28, 1998), where the

claim is made against police officers who arrested an

intoxicated man for property destruction and then

released him on the side of a road because the jail was

overcrowded and could not accept the man, and, where

after the man’s release, he was struck and injured by a car

driven by a third person?

ii

QUESTIONS PRESENTED - Continued

Question #3: [Note: Petitioner [has also] reserve[d]

the right to argue Question 3 in the event certiorari is

granted on the above questions, but does not include

Question 3 among the reasons for the grant of certiorari.]

Whether the courts below erred in denying police officers

claims for qualified immunity in a case under 42 U.S.C.

1983 alleging a substantive Due Process violation, when

the courts below held that in November 1994 police offi-

cers had a clearly established Constitutional obligation

not to do anything to increase the danger of an intoxi-

cated person to injury from third persons when they

move him to another location to prevent the commission

of a crime and release him from custody there?

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OF THE MICHIGAN MUNICIPAL LEAGUE

IN SUPPORT OF PETITIONERS

1. Your Amicus Curiae is the Michigan Municipal

League and its Defense Fund. (Hereinafter: “the League”

or “Municipal League.”)! The Respondent’s counsel,

George Hamo, denied consent to permit the filing of this

Amicus Brief, while the Petitioner’s counsel granted con-

sent to file the Brief. The Michigan Municipal League is a

non-profit Michigan corporation whose purpose is the

improvement of municipal government and administra-

tion through cooperative effort. Its membership is com-

prised of 512 Michigan cities and villages of which 380 of

these municipalities are also members of the Michigan

Municipal League Legal Defense Fund.

2. The Michigan Municipal League operates the

Legal Defense Fund through a Board of Directors. The

purpose of the Legal Defense Fund is to represent the

member cities and villages in litigation of statewide sig-

nificance. The Board of Directors of the League autho-

rized the preparation and filing of this Amicus Curiae

Brief in ordcx to insure that the interests of municipalities

in Michigan, and the citizens (and taxpayers) whom they

represent, are heard and understood by this Court.

3. The Board of Directors is composed of the Presi-

dent and Executive Director of the Michigan Municipal

1 Rule 37.6 Statement: This Brief was written entirely by

counsel for amicus, as listed on the cover. No outside

contributions were made to the preparation of or submission of

the text of this Amicus Brief.

League, as well as the Officers and Directors of the Michi-

gan Association of Municipal Attorneys. These members

represent both large, medium size and smaller commu-

nities located across the state, including City Attorneys

from the following jurisdictions in Michigan: Philips A.

Balkema, City Attorney for the City of Grand Rapids;

Williams B. Beach, City Attorney for the City of Rock-

wood; John E. Beras, City Attorney for the City of South-

field; Harold Deason, City Attorney for the City of Grosse

Pointe Park; Catherine R. Ginster, City Attorney for the

City of Saginaw; Andrew J. Mulder, City Attorney for the

City of Holland; Debra A. Walling, corporation counsel

for the City of Dearborn; Eric D. Williams, City Attorney

for the City of Big Rapids; and William C. Mathewson,

General Counsel for the Michigan Municipal League.

4. The Municipal League files this Brief in support

of the Petitioners and wishes to assist this Court in seeing

the importance of this case to all citizens living in the

State of Michigan. Those municipalities directly involved

in the events that are the subject of this suit are the City

of Flint, Genesee Township and Genesee County. These

three municipal entities ali had some direct involvement

in the facts and circumstances that led to the release of

Mr. Davis on a roadside outside of Flint, Michigan. Mr.

Davis was taken by the Defendants to the Genesee

County jail whose officials refused to house him as an

inmate pending criminal charges. After the Defendants

released Mr. Davis from custody, he was found by

Genesee Township Police Officer Carlson in the middle of

the road. Carlson talked to Davis before Davis was hit by

a Car.

5. Each of these three municipal jurisdictions have a

strong interest in the outcome of this litigation, even

though no government entity has been named as a party

defendant by the Plaintiff in this case. All municipalities

in Michigan will have to bear the burdens imposed by the

decision to prevent the potentially unlimited, and com-

pletely unwarranted, constitutional liability created by

the Sixth Circuit’s Opinion.

6. Your Amicus seeks to show to this Court that the

actions of the City of Flint police officers, of the Genesee

Township police officer and of the County Sheriff at the

jail were designed to protect the public from the Plain-

tiff’s threatening conduct. The record does not reveal any

unconstitutional conduct in the actions of the defendant

police officers in failing to prevent the Plaintiff from

being released from custody as a homeless man who must

sleep in a public park.

7. Your Amicus party believes that, if the decision

of the Sixth Circuit is allowed to stand, then it will

require that all intoxicated persons must be treated by

police officers as incompetent, and entitled to be kept

(against their will) in the county jail until they are sober.

This is a dramatic expansion of the role of the police in

protecting intoxicated persons from harms they may cre-

ate due to their own decision to become drunk. The only

way to avoid this new responsibility to detoxify intoxi-

cated persons taken into custody will be not to arrest

them in the first place.

8. The Amicus Brief will seek to show why the

police in municipalities in the Sixth Circuit and around

the country are not following the rule of law adopted by

the Sixth Circuit below. This rule requires all intoxicated

persons to be put under arrest to be kept in continued

detention and protective custody until they are sober. If

this is a constitutional obligation of police departments in

Michigan and across the Sixth Circuit, then the decision

below will impose huge costs on all municipalities.

9. Moreover, it is likely that the threat of this new

liability will cause police departments across the nation

to stop answering the public demand for some protection

against the types of street disorder that contribute to the

high crime rates in many inner city neighborhoods - and

that is preventable. In this way, the decision below will

frustrate legitimate law enforcement efforts to manage

street disorder and the efforts of communities to stop

crime.

- 10. Your Amicus will seek to show in the Brief why

vacating the opinion of the Court below will allow police

officers across the nation to continue to pursue legitimate

crime-fighting strategies made unlawful by the decision

below. The police should be allowed to arrest, move and

then release suspects who are intoxicated without creat-

ing a duty to protect them from harm by third parties

after their release from custody. Such policies are being

followed by many municipalities and they should not be

declared unconstitutional. Under the Sixth Circuit deci-

sion police officers who arrest such persons will have to

place them in already overcrowded county jails, or to

raise large amounts of tax revenue to expand the size of

county jails, or to build medical facilities (e.g., such as

detoxification clinics in a hospital).

For the foregoing reasons, your Amicus requests

leave to file its brief.

Respectfully submitted:

SUZANNE CAROL SCHUELKE, Eso. Patrick L. Rosz, Eso.

15703 Stonehouse Circle 230 N. Washington Sq.

Livonia, MI 48154 #306

(734) 462-4284 Lansing, MI 48933

Counsel of Record for Co-Counse! for Amicus

Amicus Curiae Michigan Curiae Michigan

Municipal League Municipal League

TABLE OF CONTENTS

8 Si a ee ae i

Motion for Leave to File Brief Amicus Curiae of the

Michigan Municipal League in Support of the Peti-

I doin Ws < eN Raclee deen ude in bats bleh cits co's 1-5

Statement of Reasons for Reversal ................. 1

CIN cB SG Nivivn Univ aio ca vu spbaveiieces 2

Statement of Relevant Facts....................005. 2

Procedural Posture of the Case .................... 2

Statement of Reasons for Reversal ................. 3

Legal Argument I: The Court Failed to Apply the

“Shocks the Conscience” Standard from County of

Sacramento v. Lewis, As Required, to Measure

Whether the Police Officers Violated A Constitu-

tional Duty Owed to Protect the Plaintiff from

Harm After His Release from Custody........... 3

Legal Argument II: The Court below Has Created a

New, Unfunded Federal Mandate to Treat Intoxi-

cated Suspects As Having a Constitutional Right to

Continued Detention That Will Have Profound

Budgetary Consequences, and This Mandate

Invades the Sovereignty of the States............ 10

Legal Argument III: The Sixth Circuit Court Decision

Will Prevent Municipalities from Relying upon

Police Officers to Engage In Legitimate Law

Enforcement Efforts to Detain and Move Intoxi-

cated Persons Engaged in Disorderly Conduct,

While Choosing Not to Incarcerate Them in a Jail

Dis Ni avo un nkcemnnsievacien as 14

TABLE OF CONTENTS - Continued

Page

Legal Argument IV: The Court below Did Not Prop-

erly Find That The Defendants Had No Qualified

Immunity Because the Constitutional Duty Owed

Was “Clearly Established” in 1994............... 16

Conclusion and Request for Relief................. 20

iil

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d

NB 8 Be ee Rg ee eer eee 17, 18

Collins v. City of Harker Heights, 503 U.S. 115, 112

S. Ce. Ry Bae er Ws ee: CMDs iv ntsc vn cece 8

County of Sacramento, et al. v. Lewis, et al., __ U.S.

__, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (May 26,

| RG Pee eae eee mre) ee 2, & D.8, 11, 20

Davis v. Brady, 143 F.3d 1021 (6th Cir. May 8, 1998) ..... 2

DeShaney v. Winnebago Soc. Service, 489 U.S. 189,

103 L. Ed. 2d 249, 109 S. Ct. 998 (1989)...... 5, 8, 19

Estate of Scott B. Stevens v. City of Green Bay, 105

kg. 8k Rd eee eer Ae

Foy v. Berea, 58 F.3d 227 (6th Cir. 1995) ............. 18

Gazette v. City of Pontiac, 41 F3d 1061 (6th Cir.

Rs 655 5 vc SEED Wik ee RWS SN 96 a 0A Kei Ses ads 18

Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396,

Ue ee ee ee 17, 18

Humphrey v. Cady, 405 U.S. 504, 92 S. Ct. 1048, 31

a Sp fo. Pere ee Cree err eee 7

Kneipp v. Tedder and City of Philadelphia, 95 F.3d

OE I PCN roca in hedges dn tees coins ceetes 9

O’Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486,

a PENS anc c hopes evsenkee¥aascessss 7

Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69

| 8 fF fF: Se cee OPerae Tee iee Teter 13

DES ne renee eae

iv

TABLE OF AUTHORITIES —- Continued

Page

Stemler v. City of Florence, 126 F.3d 856 (6th Cir.

ROBE) «shine xin sip gc etn sg We va aS bs Oe bey ee 18

United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624,

LS Kin: Beek I Cece ao 0a seas 6 on sees cava 11

Walton v. City of Southfield, 995 F.2d 1331 (6th Cir.

IFS) «5 nih 0.56 te nehbeanabhe es head wu eerbas st eaee’ 18, 19

Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452,

To Cas QURs SE OP MNEs SESS Ss RE Ret un ed lun ete el eter 7

STATE CASES

Kent County Prosecutor, 428 Mich. 314, 409 N.W.2d

rE) eer ye oe Pere rer Cre Parr ey 13

Muskegon County Commissioners v. Circuit Judge,

188 Mich. App. 270, 469 N.W.2d 441 (1991)....... 14

FEDERAL Court RULES AND STATUTES

Federal Rule of Appellate Procedure 28(j)............ 3

42 UGGS] TOG hoe octet eek WU ae 17, 20

STATE STATUTES

County Jail Overcrowding Emergency Powers

Act, M.C.L. 801.51 et seq., M.S.A. 28.1758(1) et

TOR, ov ccccccccwccesnrecenans dees scymbetess ch lbebes 13

COMMENTARIES AND TREATISES

William Bratton with Peter Knobler, Turnaround:

How Americas Top Cop Reversed the Crime Epi-

demic (Random House 1998) ..................000- 15

Vv

TABLE OF AUTHORITIES - Continued

Page

George Kellig and Catherine Colis, Fixing Broken

Windows: Restoring Order and Reducing Crime in

Our Communities (Free Press 1996)............. 15, 16

Malcolm Feeley and Edward L. Rubin, Judicial

Policy Making and the Modern State: How the

Courts Reformed Americas Prisons (Cambridge

So NE a 11

Michael L. Perlin, Mental Disability Law: Civil and

Criminal (Lexis Law Pub. 1998) .................... 6

Wayne Walsh, Counties and Court: Jail Overcrowd-

ing and Court Ordered Reform (Temple University

SS I Ve Nv ii vee ccc cee cece seen 12

1

STATEMENT OF REASONS FOR REVERSAL

The questions set forth in the Petition are stated on

page i preceding the Motion. The Amicus Curiae will

address the following reasons for reversal:

Legal Argument I: The Court Failed to Apply the

“Shocks the Conscience” Stan-

dard from County of Sacramento v.

Lewis, As Required, to Measure

Whether the Police Officers Vio-

lated A Constitutional Duty

Owed to Protect the Plaintiff

from Harm After His Release

from Custody.

Legal Argument II: The Court below Has Created a

New, Unfunded Federal Mandate

to Treat Intoxicated Suspects As

Having a Constitutional Right to

Continued Detention That Will

Have Profound Budgetary Conse-

quences, and This Mandate

Invades the Sovereignty of the

States.

Legal Argument III: The Sixth Circuit Court Decision

Will Prevent Municipalities from

Relying upon Police Officers to

Engage In Legitimate Law

Enforcement Efforts to Detain

and Move Intoxicated Persons

Engaged in Disorderly Conduct,

While Choosing Not to Incarcer-

ate Them in a Jail After Their

Arrest.

Legal Argument IV: The Court below Did Not Prop-

erly Find That The Defendants

Had No Qualified Immunity

Because the Constitutional Duty

Owed Was “Clearly Established”

; in 1994.

2

OPINION BELOW

The Sixth Circuit’s opinion in Davis v. Brady, is pub-

lished at 143 F.3d 1021 (6th Cir. May 8, 1998).

STATEMENT OF RELEVANT FACTS

This Court may review the facts in the Petition and

Opinion in the Court below. The Petition discusses the

relevant statutory and constitutional provisions, and the

jurisdiction of this Court to hear this case.

PROCEDURAL POSTURE OF THE CASE

This case came to the Court of Appeals for the Sixth

Circuit on an interlocutory appeal raising a qualified

immunity defense. The District Court had denied the

defendant police officer’s motion for summary judgment.

The Sixth Circuit’s opinion reviewed what “the record

can reasonably be read to show” about the Plaintiff's

claim that whether “the defendant officers took the affir-

mative act of restraining Davis’s freedom to act on his

own behalf, and consequently imposed upon themselves

a duty to ensure that they were not placing him in dan-

ger.” (Appendix to Petition, App. 7a.) The Sixth Circuit

affirmed the District Court’s decision denying qualified

immunity based upon the deliberate indifference stan-

dard as follows:

In this case, the taking of Davis into custody

triggered the defendant officers’ duty to protect

Davis [and] . . . the defendant officers violated

this duty when they exhibited deliberate indif-

ference to Davis’s well-being by abandoning

him, in his inebriated state, on an unfamiliar,

dark, and busy highway. (Appendix, App.

12a-13a.)

The defendants could not discuss the holding of

County of Sacramento, et al. v. Lewis, et al., __ U.S. ___, 118

S. Ct. 1708, 140 L. Ed. 2d 1043 (May 26, 1998) in their

Petition for Rehearing En Banc on May 21, 1998, since this

3

Court issued its decision in Lewis after the Petition was

due to be filed. F.R.A.P. 28(j) bars filing supplemental

briefs after an opinion has been issued bv the Circuit and

after the petition for rehearing has *» 1 filed. However,

there is no reason why the Sixth Circuit should have

ignored the holding of Lewis. The entire Sixth Circuit was

reconsidering its Opinion in this case for an entire month

after this Court issued its decision in Lewis on May 26,

1998. After giving the issues consideration on the Petition

for Rehearing, the Sixth Circuit issued an order denying

the rehearing motion on June 29, 1998. (Appendix, App.

23a.) Even in its order denying rehearing, the Sixth Cir-

cuit did not consider the new legal standard announced

in Lewis. |

Accordingly, the Petitioners filed their Petition seek-

ing to have this Court grant certiorari and to vacate the

published opinion of the Sixth Circuit because it conflicts

directly with published decisions of this Court, including

Lewis, supra and DeShaney v. Winnebago Soc. Service, 489

U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). Your

Amicus Curiae file this Brief in support of the Petition for

a Writ of Certiorari.

STATEMENT OF REASONS FOR REVERSAL

Legal Argument I: The Court Failed to Apply the

“Shocks the Conscience” Standard from County of Sac-

ramento v. Lewis, As Required, to Measure Whether the

Police Officers Violated A Constitutional Duty Owed to

Protect the Plaintiff from Harm After His Release from

Custody.

The Sixth Circuit Court applied a legal standard fun-

damentally at odds with the holding of County of Sacra-

mento, et al. v. Lewis, et al., __ U.S. __, 118 S. Ct. 1708, 140

L. Ed. 2d 1043 (May 26, 1998), before the Sixth Circuit

denied the pending motion for rehearing in this case.

Accordingly, there can be no dispute that the Sixth Circuit

had a duty to apply that standard here before it denied

the defendants’ petition for rehearing. Instead of doing

4

so, the Sixth Circuit Court disregarded this Court's deci-

sion in Lewis, and never took into account any of the

legitimate law enforcement objectives pursued by the

defendant police officers in this case in deciding if they

owed a duty to hold Davis in continued custody.

In Lewis, this Court held that the conduct of police

officers in failing to protect a person from harm by third

parties must be “arbitrary in a constitutional sense.” To

decide if it is a constitutional violation, Lewis teaches that

the police officer’s conduct must be measured in light of

“any substantial countervailing interest [that might]

excuse the State from making provision for the decent

care and protection of those it locks up... ”, and from

preventing the suspect upon release from custody from

coming “into harm’s way.” Lewis, __ U.S. , 140

L. Ed. 2d 1045, 1061. Further, the Lewis decision states

that, when there are substantial countervailing law

enforcement or other interests served by releasing the

suspect from custody, mere deliberate indifference by the

police officers to the needs or safety interests of the

suspect are not enough to show that a constitutional duty

is owed to protect the suspect from harm. Id.

The Sixth Circuit failed to take into account in its

opinion the legitimate law enforcement objectives that the

defendant police officers pursued by releasing Mr. Davis

far from the county jail and the nearby homeless shelter.

Mr. Davis made it clear to both of the defendants that it

was his stated goal to return to the shelter and break out

the rest of the windows of the building. As the Petition

states,

When Officer Murphy went to retrieve Mr.

Davis from the county jail holding cell, he asked

Davis where he wanted to go. Davis replied,

“Take me back to the mission and I'll break out

the rest of the windows.” SM, at 80, 86... . The

officers drove Davis away from the area of the

mission and left him off at the lighted entrance

to Bluebell Beach, a public park. Petition for

Certiorari at 5. (Emphasis added)

5

The defendant police officers thwarted the stated

intent of the Plaintiff to continue his criminal conduct by

taking him far enough. away from that area to prevent

further crime. Inexplicably, the Sixth Circuit Opinion fails

to take into account the fact that the defendants were

pursuing legitimate law enforcement objectives by releas-

ing him some distance from the shelter. The Sixth Circuit

faulted the defendant police officers for releasing Mr.

Davis in Genesee Township, rather than at the jail:

“In the present case, Davis alleges - and the

record can reasonably be read to show - that

after taking Davis into custody, the defendant

officers dropped Davis off on a dark, busy high-

way and left him there against his will. In so

doing, the defendant officers took the affirma-

tive act of restraining Davis’ freedom to act on

his own behalf, and consequently imposed upon

themselves a duty to ensure that they were not

placing him in danger.” (Sixth Circuit Opinion,

Appendix to Petition, App. 7a.) —

The Sixth Circuit then disregarded the fact that the

police officers exercised discretion to remove Mr. Davis

from the area near the homeless shelter. Instead, the

panel decision makes a finding that the police officers

had no right to “interfere” with the stated intent of Mr.

Davis to return to the shelter upon his release. The deci-

sion states: “the defendant officers in this case placed

Davis in a more dangerous situation than he was in prior

to their interference, when they drove him outside the

Flint city limits and abandoned him on a dark and dan-

gerous highway in an unfamiliar area.” (Sixth Circuit

Opinion, Appendix, App. 9a.) (Emphasis added.) This

conclusion cannot be supported under this Court’s deci-

sion in Lewis, supra or DeShaney, supra.

The police have a right to stop a criminal from engag-

ing in continued acts of destroying property. It should

shock this Court’s sensibility that the Court below would

treat an action by two police officers to prevent a home-

less shelter from having its windows broken out as an

6

interference of the vandal’s civil rights. Then the Sixth

Circuit concluded that the Fourteenth Amendment Due

Process Clause imposes a duty on the defendants to pro-

tect Davis only because of the fact that he was placed on the

road against his will.

The record simply does not support the conclusion

that Davis wished to be kept in custody or to be released

in any other particular place. It is undisputed that Davis

only asked to go to the shelter to continue breaking out

windows. The police had a legal duty to thwart this wish

by him. Davis did demand that he be released from

custedy from the moment of his initial arrest. This is a

typical situation where the police must manage the

unruly and often violent behavior of an intoxicated sus-

pect who wishes to be free and is uncooperative during

his entire detention.

The Court analyzed the police officers’ duties to hold

Mr. Davis, rather than release him, under a “deliberate

indifference” standard. By applying the “deliberate indif-

ference” standard, the Court applied the wrong legal

standard. The Sixth Circuit is again on the wrong side of

a spht in the Circuits, as this Court explained in Lewis,

U.S. ___, 140 L. Ed. 2d at 1061.

The new constitutional duty created by the Sixth

Circuit conflicts with the decisions of this Court protect-

ing the rights of persons being held involuntarily under a

suspicion they are mentally incompetent or a danger to

themselves. See generally, Michael L. Perlin, Mental Dis-

ability Law: Civil and Criminal (Lexis Law Pub. 1998) Vol. I

at 44-188, 417-522. When the police or any state officials

seek to involuntarily commit a person against their will

for medical, psychological or drug treatment, this Court

has consistently warned that the person enjoys a pre-

sumptive right to be set free that the officials must over-

come by a preponderance of evidence showing

incapacity. This Court has always said that, when the

person who is involuntarily committed by a state official

seeking to protect the suspect from himself, the courts

must view the evidence supporting such detention by

7

erring on the side of releasing the suspect. See Youngberg

v. Romeo, 457 U.S. 307 (1982); O’Connor v. Donaldson, 422

U.S. 563 (1975); and, Humphrey v. Cady, 405 U.S. 504, 509

(1972). The police only have a duty under the decisions of

this Court to restrain a mentally ill or intoxicated person,

and involuntarily committing them to jail or to a hospital,

to a drug treatment center or to a mental facility, when it

would be obvious to anyone that the person is a danger

to himself. Id.

The defendant police officers conformed their con-

duct to the holdings of these cases. They had a duty

under this case law to use the least restrictive alternative

form of incarceration of a person who is intoxicated or

mentally ill and arrested on the street. The defendants

honored Mr. Davis’s wish to be freed from custody after

they had decided not to hold him in jail pending any

criminal charges. They were correct to do so because the

evidence does nc: clearly show he is intoxicated and

incompetent.

The Court has reversed the normal presumption that

the police must err on the side of releasing a suspect who

is intoxicated with only a diminished capacity who is not

being held for any crime. This court should reject the

equation made by the Sixth Circuit that simply because

one is drunk then one is incompetent and unable to care

for oneself. (Sixth Circuit Opinion, Appendix, App. 12a.)

(“[The defendant officers] knew, or reasonably should

have known, that Davis was drunk and unable to care for

himself.”) This conflicts with the decision of the Seventh

Circuit in Estate of Scott B. Stevens v. City of Green Bay, 105

F.3d 1169 (7th Cir. 1997), holding that police officers are

not charged with the knowledge of how much alcohol a

suspect has consumed. Police officers on the street have

no way to measure a suspect's blood alcohol level in most

cases.

The Sixth Circuit has made the police responsible to

protect Mr. Davis from himself and the dangers he cre-

ated by becoming intoxicated while homeless, as well as

to protect him from third parties. To impose such a broad

8

duty is no less than making the police officers the insurer

of the safety of the suspect. This is contrary to the express

holding of both Collins v. City of Harker Heights, 503 U.S.

115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992) (holding that

municipalities do not have a duty to become insurers of

the safety of municipal employees from safety risks in the

workplace under the Fourteenth Amendment).

The Sixth Circuit opinion is also plainly contrary to

this Court’s holding in DeShaney v. Winnebago Soc. Serv.,

489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). The

basic argument of DeShaney applies to this situation,

namely, that simply because state officials create a rela-

tionship to a foster child does not make them forever

responsible to provide care to that child. In this case, Mr.

Davis expressed a wish to terminate the custody relation-

ship. In granting his wish to be released, the police had

no choice but to take Davis away from the shelter where

he would have returned to break the windows. To apply a

duty to protect Davis is more unworkable for temporary

detention situations. The holding in DeShaney was that

there was no duty to protect the child from harms he

faced before the much longer detention of foster com-

menced. The same holding applies here. Davis faced the

same general harms that a homeless person faces who has

no shelter and is intoxicated by his own acts on the street.

Davis faced these dangers before his arrest and would

have faced them without police intervention. This is why

Joshua DeShaney was harmed: his father who had beaten

him before the police intervened abused him after he was

returned to his father.

DeShaney forecloses the idea that once there is a

special relationship created, you cannot end it. Ending

the special relationship in DeShaney did not create a

breach of constitutional duty where the child was

released to the old dangers, and it should not lead to a

breach of duty here. _-

The Court below has held the police satiate account-

able and potentially liable for leaving a suspect on the

road when another police officer from a different police

9

agency did not believe Davis was a danger to himself.

The Court also held the police officers accountable for the

failure of the driver of the automobile to stop in time

when she had a last clear chance to do so. However,

neither the other police officer nor the driver of the car

that hit Mr. Davis proximately caused the injuries that

Mr. Davis now suffers. He caused his own injuries by

walking into the street. The Third Circuit held in Kneipp v.

Tedder and City of Philadelphia, 95 F.3d 1199 (3d Cir. 1996),

that police officers may be held constitutionally liable

under Section 1983 for abandoning an intoxicated suspect

released from custody near a roadside only when three

conditions are met: (1) the suspect could not be released

because she was physically incapacitated due to extreme

intoxication, (2) the police officers have an obvious safe

place to take the suspect and refuse to do so, and (3) the

police officers interfere with a person who is trying to

take the intoxicated suspect being arrested to a position

~ of safety from harm. See Kneipp, supra.? In this case, none

of these three conditions are met.

The record in this case only suggests that the Plaintiff

was somewhat impaired due to his intoxication. This

impaired condition is familiar to many people who

become drunk but are not incapacitated. The police

should not forcibly take such a person into custody and

hold them against their will, as the Sixth Circuit decision

requires. In this case, the Plaintiff was able to walk and

able to stand and able to talk after the defendant police

officers released him at a county park on Bray Road.

This is not a case where the Plaintiff was so clearly

incapacitated when the police released him from custody

that he could be considered to be medically or physically

2 In Kneipp, the police arrested an intoxicated woman,

Samantha Kneipp, just one block from her home when her

husband was taking her home from the bar. The police also

interfered with the wife’s source of rescue (i.e her husband) by

leading him to believe that she had been taken to jail.

10

incapacitated. For instance, it is undisputed that the Plain-

tiff walked from the location of his release to the front

lawn of a house to talk to a resident. Davis stood and

talked to Genesee Township Officer Carlson before he

was hit. Davis then walked into the road waving for a

ride both before Officer Carlson arrived and after he left.

Given these facts, the Court below should have

addressed whether a reasonable police officer could make

a mistake of fact as to whether the Plaintiff was so intoxi-

cated as to be a danger to himself in any location.

Legal Argument II: The Court below Has Created a New,

Unfunded Federal Mandate to Treat Intoxicated Sus-

pects As Having a Constitutional Right to Continued

Detention That Will Have Profound Budgetary Conse-

quences, and This Mandate Invades the Sovereignty of

the States.

In its Opinion, the Court below has overlooked the

fact that Davis was released because the Genesee County

jail was overcrowded. The Court also overlooked in the

Opinion the undisputed fact that the Plaintiff lives on the

street when he is not in the shelter and, thus, he had to be

released there by the defendant police officers. The Opin-

ion below does not even mention the word “homeless” or

“homeless shelter.” The Court below simply asserted that

the defendant police officers acted “against the Plaintiff's

will” by forcing him to be released from custody on the

roadside.

The Court’s Opinion should have considered the

three basic facts that justified the defendants’ conduct in

releasing Davis on Bray Road: (1) first, Davis could not be

put in the county jail because it was overcrowded, and

there were no alternative facilities available to take him

for medical treatment or to be kept against his will in

protective custody other than this jail, (2) second, Davis

said that he wanted to be released from custody, rather

than being held against his will at the jail, and (3) third,

Davis was homeless.

11

These facts show why the defendants acted upon the

basis of “legitimate law enforcement objectives” that this

Court in Lewis saw to be a necessary part of the analysis of

whether police officers violated a constitutional duty by

conduct that “shocks the conscience.” The “shocks the

conscience” standard had been followed by every other

Circuit before Lewis, except the Sixth and Ninth Circuits.

Lewis, supra. Instead of applying the “shocks the con-

science” standard, in Lewis and Circuit decisions before

Lewis, the Sixth Circuit employed a result-oriented analysis

and followed a deliberate indifference standard. Only by

applying the wrong legal standard could the Sixth Circuit

arrive at the conclusion that the defendants owed Mr.

Davis a constitutional right to confinement based upon his

intoxication, after his initial detention. The Court below

should have found that Mr. Davis’s right to be held in

protective custody ended after the police decided not to

hold him for any criminal offense, and after they deter-

mined that he should be released from custody at a time

when he was not clearly incapacitated.

The federal courts should not be mandating every

local political subdivision in America (or in the Sixth

Circuit) to provide this type of social services to only

intoxicated persons who have committed crimes, thereby

diverting resources from foster care programs, drug treat-

ment, food stamps, medical care for the poor, etc. This

Court has explained why federal courts should not

directly or indirectly override the budgetary decisions of

sovereign states, and their subdivisions, by imposing

directly duties under the Fourteenth Amendment or

other constitutional provisions, contrary to basic notions

of federalism. See United States v. Lopez, 514 U.S. 549, 115

S. Ct. 1624, 131 L. Ed. 2d 626 (1995) (invalidating Gun-

Free School Zones Act of 1990 as exceeding Congress’

power under the Commerce Clause).%

3 See generally, Malcolm Feeley and Edward L. Rubin,

Judicial Policy Making and the Modern State: How the Courts

12

The State of Michigan and its municipalities also have

pursued legitimate law enforcement objectives in seeking

to protect Davis from the harms he would face in an

overcrowded Genesee County jail. This lawsuit arose

because the Genesee County Sheriff concluded that Davis

should not be admitted as an inmate because the county

jail was overcrowded. This is a very common situation in

county jails in municipalities across the county. The popu-

lation of local county jails (where most inmates are held

for petty crimes) has increased in size three-fold in just

twenty five years — and there is no end in sight to the

constantly increasing numbers of inmates that police bring

to the doors of these jails. Wayne Walsh explains the

magnitude of the problem in his study Counties and Court:

Jail Overcrowding and Court Ordered Reform, as follows:

Chronic Overcrowding in the nation’s city

and counties [the 1993 Senate Crime Bill]. Even

if new prisons were to fractionally reduce over-

crowding, the 20th Cen has taught us two

lessons well: New prisons fill up almost as soon

as they open, and there are always several

offenders standing in line to take the place of

each one who is temporarily removed from the

streets. =

* + *

*** * Jails in the United States have been

overcrowded and characterized by poor living

conditions virtually since their inception. Recent

massive increases in jail populations (from

158,394 in 1978 to 444,584 in 1992) have only

magnified such longstanding problems

* * * * Wayne Walsh, Counties and Court: Jail

Overcrowding and Court Ordered Reform (Temple

University Press, Philadelphia 1995) at 5-7.

The Sixth Circuit did not consider the impact of

vesting the Plaintiff with a new constitutional right to be

Reformed America’s Prisons (Cambridge University Press 1998),

Chap. 5, 149-203.

13

held in custody in local county jails. These jails are run by

local municipal governments and they are chronically

overcrowded already.

The Michigan Legislature has sought to stem the tide

of constantly increasing jail populations by mandating

that county governments control the size of the jail popu-

lation. See County Jail Overcrowding Emergency Powers

Act, M.C.L. 801.51 et seq., M.S.A. 28.1758(1) et seq. The

Michigan Supreme Court upheld the power of the legisla-

ture to pass this statute in an effort to avoid liability for

municipal governments:

[T]he Legislature has an interest in helping the

state and its employees avoid liability when

possible [and] . . . past experience has shown

that conditions arising from jail and prison over-

crowding can lead to suits against jail and

prison officials brought by prisoners under 42

U.S. Sec. 1983 for violation of their civil

rights. * * * * The Legislature, through the jail

overcrowding act, is seeking to prevent viola-

tions of prisoners’ Eighth and Fourteenth

Amendment rights. When we consider that

many of the prisoners in county jails have yet to

be convicted, the state must be solicitous of their

rights while they are still protected by the pre-

sumption of innocence. The act provides bright-

line guidance to the courts and sheriff when the

likelihood of Eighth -ed Fourteenth Amend-

ment violations become imminent. . . . A threat-

ened injury is enough to justify action.” See Kent

County Prosecutor, 428 Mich. 314, 326, n.12, 409

N.W.2d 202, 208, n.12 (1987).

The Supreme Court of Michigan also pointed out that

the Jail Overcrowding Act was passed to comply with

decisions of this Court. In its Opinion in the Kent County

Prosecutor, the Court observed how this Court had “high-

lighted the horrendous environments which overcrowded

[jail] conditions create” by quoting from Justice Brennan’s

opinion in Rhodes v. Chapman, 452 U.S. 337, 354, n.3, 101

S. Ct. 2392, 2403, n.3, 69 L. Ed. 2d 59 (1981). Id. at n.7. To

14

avoid these unconstitutional conditions of confinement,

the Michigan Jail Overcrowding Act mandates cata-

strophic measures to be taken when the county sheriff

fails to control the admissions to the jail.

The Genesee County Sheriff was following the gen-

eral mandate of the Jail Overcrowding Act when his

deputies decided in this case not to accept the Plaintiff for

admission to jail. See Muskegon County Commissioners v.

Circuit Judge, 188 Mich. App. 270, 469 N.W.2d 441, 445

(1991) (approving of use of practice of “deter[ring] accep-

tance of new prisoners, with certain exceptions” as a

remedy for jail overcrowding.) The Defendants in this

case were not free to disregard the decision made by the

Genesee County Sheriff's Deputies refusing to hold the

Plaintiff in custody.

The record does not reveal that Mr. Davis wanted to

stay at the Genesee County jail for his own protection.

The Sixth Circuit also cannot support the conclusion that

its action of leaving Davis at the entrance to a public park

had the effect of “restraining Davis's freedom to act on

his own behalf.” (Sixth Circuit Opinion, Appendix, App.

7a.) The record contradicts this finding, as does any com-

mon sense undefstanding of Mr. Davis’s conduct in walk-

ing around the area around the entrance of the public

park after these defendant police officers released him.

Legal Argument III: The Sixth Circuit Court Decision

Will Prevent Municipalities from Relying upon Police

Officers to Engage In Legitimate Law Enforcement

Efforts to Detain and Move Intoxicated Persons

Engaged in Disorderly Conduct, While Choosing Not to

Incarcerate Them in a Jail After Their Arrest.

The opinion of the Court below promises guaranteed

liability for police officers honestly pursuing their

“instincts to fight crime”, and it promises social disorder

for communities asking the police to take control of pub-

lic spaces. When a citizen calls 911 to complain about an

intoxicated person who is menacing them on the street,

the police will have only one of two choices. First, the

15

police could decide not to arrest the intoxicated person.

Second, the police can arrest a person and then release

him after the Sheriff who runs the county jail or the

county prosecutor makes the decision not to hold him in

continued detention at the jail, or not to charge him with

any crime.

Given the logic of the Sixth Circuit decision, the

police can be expected to make a decision not to arrest

intoxicated suspects if there is no place at the jail to hold

them until they are no longer in their intoxicated condi-

tion. Once the suspect is arrested, or detained or moved

to another location, then the Sixth Circuit decision

requires that the police face possible liability for any

harms arising after the release of the suspect that could

have been avoided by continued detention.

The law of unintended consequences will apply here

to create an effect of imposing liability that the Court

below did not anticipate. The police will not provide

protection to the community as they once did by remov-

ing intoxicated persons who are threatening others, at

least not where there is no room at the jail to hold that

person in custody. The decision of the police not to arrest

intoxicated persons who are disturbing the peace will

lead to social deterioration. George L. Kellig and Cat-

herine M. Colis have described in Fixing Broken Windows:

Restoring Order and Reducing Crime in Our Communities

(Free Press 1996), how the New York City, Baltimore,

Seattle, and San Francisco police departments have

sought to halt street disorder as part of a community-

wide strategy to reclaim poor and gentrified inner city

neighborhoods.* As Kellig and Colis document, police

departments in each of these cities have been following a

* The former New York City Police Commissioner

(America’s “top cop”) tells a similar story about his successful

strategy to stop street disorder and subway crime as the key to

reducing crime throughout the City. See William Bratton with

Peter Knobler, Turnaround: How America’s Top Cop Reversed the

Crime Epidemic (Random House 1998).

16

conscious policy of seeking to stop street disorder in

public spaces. They are doing so because residents, office

workers, persons using a public park, riders on the

subway or on city buses, and customers in stores or

restaurants in inner city areas have demanded police

intervention. See George Kellig and Catherine Collis, Fix-

ing Broken Windows, supra at 15.

When the county jail is overcrowded, the police have

nowhere to take these persons who they have arrested,

detained and need to release. Under the Sixth Circuit

decision in this case, the police will be held subject to suit

and to being held liable under Section 1983 for perform-

ing what this Court should agree are legitimate law

enforcement objectives, as defined in Lewis, of controlling

street disorder so as to reclaim our inner cities for the

majority of their citizens.

Legal Argument IV: The Court below Did Not Properly

Find That The Defendants Had No Qualified Immunity

Because the Constitutional Duty Owed Was “Clearly

Established” in 1994.

The Sixth Circuit decision below recognizes that

these two police officers owed a “clearly established”

duty that no other Circuit opinion had recognized as of

the time of the incident in November of 1994. This new

constitutional duty conflicts with the law in every other

Circuit. There is no other federal appellate court that has

directly considered the question and held that police

officers have a broad duty to protect an intoxicated per-

son from harms created by third parties at the location

where the suspect is released from custody. The only

other Circuit to have specifically addressed the issue in a

case involving an intoxicated person refused to hold that

the police had a duty to protect the suspect after his

release from the harms he caused to himself (i.e., by

becoming intoxicated and then walking into the road

where he was hit by a car). As the Petition points out, the

Seventh Circuit explicitly refused to adopt this view in

17

Estate of Scott B. Stevens v. City of Green Bay, 105 F.3d 1169

(7th Cir. 1997).

The Congress adopted the laws that became the Civil

Rights Act of 1871 (including 42 U.S.C. § 1983) in order to

require the officials of the several states to respect the

rights of persons in their jurisdictions to the protection of

the U.S. Constitution and the laws.

To accomplish these statutory objectives, this Court

has created an easily defined standard of when qualified

immunity must be applied to bar a suit against a police

officer. In Harlow v. Fitzgerald, 457 U.S. 800, 818, 73

L. Ed. 2d 396, 102 S. Ct. 2727 (1982), this Court defined

that standard by stating that because “an official [cannot]

reasonably be expected to anticipate subsequent legal

developments, nor [can] he fairly be said to ‘know’ that

the law forb[ids] conduct not previously identified as

unlawful, [such that] reasonable knowledge of the law

involves knowledge only of legal rules that were ‘clearly

established’ at the time of the conduct at issue.” Harlow,

457 U.S. at 818. This Court later decided in Anderson v.

Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct.

3034 (1987), that the question of whether a new constitu-

tional right is “clearly established” may depend upon the

level of generality at which the right is defined. The

Anderson Court held that “the contours of the right [must

be] sufficiently clear that a reasonable official would

[have] understood that what he [was] doing violated that

right.” Both Harlow and Anderson held that a police officer

must be given qualified immunity if, judging by an objec-

tive standard, a reasonable person would say that the

constitutional right the official is accused of violating had

not become “clearly established” at the time of the con-

duct.

The Sixth Circuit did not follow Harlow and Anderson

since it held that the police officers owed a “clearly

established” constitutional duty to the Plaintiff that no

Circuit decision had recognized. There is no panel deci-

sion in the Sixth Circuit decided as of November of 1994

18

that clearly recognized that police officers owe a substan-

tive due process duty to protect a suspect from harm

upon release from custody. The Sixth Circuit did cite to

four decisions in support of the view that this constitu-

tional right not to be released had become “clearly estab-

lished” in the Circuit. Those decisions are cited in the

Sixth Circuit Opinion, see Petitioner’s App. 6a-10a, citing

Walton v. City of Southfield, 995 F.2d 1331, 1337 (6th Cir.

1993); Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir.

1994); Foy v. Berea, 58 F.3d 227 (6th Cir. 1995); and Stemler

v. City of Florence, 126 F.3d 856, 867-868 (6th Cir. 1997).

Three of these four decisions, including the Gazette deci-

sion decided in December of 1994, were published by the

Sixth Circuit before the defendant police officers arrested

and released Davis on November 17, 1994.

The above decisions in the Sixth Circuit do not create

a “clearly established” constitutional right to protective

custody or continued confinement owed by a police offi-

cer who arrests an intoxicated person. This is true under

any analysis of whether the right was “clearly estab-

lished” following this Court’s definition of that standard

in Anderson and Harlow.

There was no “clearly established” right at the time of

the incident in November of 1994. The only decision on this

issue that was published before the incident was Walton, 995

F.2d 1331, raised the issue of whether police officers violated

a constitutional right owed a duty under the substantive due

process doctrine to protect children from being abandoned in

a car on the highway when they arrested the children’s

mother after a traffic stop. The Walton Court held that the

conduct of the police officers was not clearly unlawful based

upon any published decision of the Sixth Circuit in 1993, and

so the Court granted them qualified immunity. Specifically,

the Walton Court held that “the defendant officers maintain

that the district court erred in denying qualified immunity to

them on the claim that they abandoned the children [and]

[w]e agree and reverse the district court on that issue.” Id. at

1336, 1344.

19

Finally, the Sixth Circuit decision in Walton did recog-

nize that this Court in DeShaney had held that “in certain

limited circumstances the Constitution imposes upon the

State affirmative duties of care and protection with respect

to particular individuals,” id. at 1336, quoting from

DeShaney, 489 U.S. at 198, 109 S. Ct. at 1004. However, the

Walton Court specifically declined to reach any decision

about whether the police officers had violated a clearly

established constitutional right owed by them to the chil-

dren they abandoned on the highway after arresting their

mother. The Sixth Circuit’s Walton decision did review the

decisions in the Seventh, Ninth, Tenth and Eleventh Cir-

cuits on the question of whether police officers have a

“clearly established” duty to protect the personal security

of suspects after their release from custody from harms

created by third parties. Walton, 995 F.2d at 1337-1339

(collecting cases). But the Sixth Circuit concluded from this

discussion that the decisions were either distinguishable

on their facts or that “[these] Circuit decisions merely

show that the circuits continue to be divided on the issue.”

Id. at 1339.

Obviously, the Sixth Circuit cannot rely upon Walton

to conclude that there was a Circuit decision which

“clearly established” the right of the Plaintiff to be placed

in protective custody, rather than to be released on the

roadside, after his arrest at the shelter. As a result, this

case nicely frames an important and basic procedural issue

that this Court should resolve. The question is whether a

right is “clearly established” only after there is a published

Circuit Court decision. Your Amicus asks this Court to use

this case to hold that constitutional due process principles

and fundamental unfairness are violated if these police

officers are held to a standard of conduct that was not

clearly established in any decision in the Circuit at the

time of their conduct.

Officials should be able to know in advance when

their conduct is likely to violate the Constitution or laws.

Such advance warning of potential liability is not possible

under a rule of liability that turns on whether the location

20

where an arrested person is released from custody is

deemed, after the fact, to be more dangerous in some

respect from the place where the person was arrested. The

standard of liability created by the Sixth Circuit imposes a

general duty to avoid negligence that will cause officials to

be judged for their conduct by after-the-fact and wildly

fluctuating standards. As this Court has recognized in

Lewis in stating that Section 1983 was not intended to be a

“font of tort law,” the application of the negligence stan-

dard will catch both the most conscientious officer as the

most deliberately indifferent. Such a new standard must

be applied prospectively only to future cases. It is funda-

mentally unfair to impose liability on a state official for

failing to predict future developments in the law.

CONCLUSION AND REQUEST FOR RELIEF

Your Amicus asks that this Court reverse the decision

to protect the sovereign right of municipalities to make

these decisions free from federal interference so as to be

able to fund more worthy social programs better designed

to promote the welfare of all citizens. Your Amicus also

requests relief to prevent the Sixth Circuit from limiting

the ability of police officers to prevent disorder in the

streets of our cities, in the transit systems and in public

spaces. For the foregoing reasons, this Court should vacate

the decision of the Court below, grant certiorari, and then

remand to that Court to issue a decision in light of this

Court’s recent decisions in County of Sacramento v. Lewis,

supra, or decide the case on the merits.

Respectfully submitted,

SUZANNE CAROL SCHUELKE, Esq. Patrick L. Rose

15703 Stonehouse Circle 230 N. Washington Sq. #306

Livonia, MI 48154 Lansing, MI 48933

(734) 462-4284 (517) 482-2422

Counsel of Record Co-Counsel for Amicus

for Amicus Curiae Curiae Michigan Municipal

Michigan Municipal League League

Dated: November 20, 1998