Opposition Brief — Hayes v. Bailey

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No. 91-207 —

IN THE .

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

COLLEEN HAYES, NATHANIEL CALDWELL and

TOM ALLISON,

Petitioners,

vs.

GREGG FITZGERALD BAILEY and

LIZZIE SHIRLEY BAILEY,

Respondents.

RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JOSEPH W. LITTLE

3731 N.W. 13th Place

Gainesville, FL 32605

Attorney For Respondents

July 10, 1992

No. 91-2077

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

COLLEEN HAYES, NATHANIEL CALDWELL and

TOM ALLISON,

Petitioners,

vs.

GREGG FITZGERALD BAILEY and

LIZZIE SHIRLEY BAILEY,

Respondents.

RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JOSEPH W. LITTLE

3731 N.W. 13th Place

Gainesville, FL 32605

Attorney For Respondents

July 10, 1992

|

=

QUESTIONS PRESENTED

I. WHETHER THE COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT FAILED TO APPLY THE

CORRECT STANDARD IN DETERMINING WHETHER

THE DEFENSE OF QUALIFIED IMMUNITY WAS

PROPERLY DENIED TO PUBLIC OFFICIALS IN

CONNECTION WITH AN ALLEGED DENIAL OF

PROCEDURAL DUE PROCESS.

II. WHETHER A PUBLIC OFFICIAL'S DEFENSE

OF QUALIFIED IMMUNITY SHOULD BE SUBMITTED

TO A JURY WHEN IT CANNOT BE RESOLVED

BEFOREHAND BY A MOTION FOR SUMMARY

JUDGMENT BECAUSE OF DISPUTED MATERIAL

FACTS.

= 44 «

PARTIES TO THE PROCEEDINGS BELOW

In addition to the parties named in

the caption, the parties to the

proceedings below included the Board of

County Commissioners of Alachua County,

Florida, Eugene Whitworth, State Attorney

of the Eighth Judicial Circuit of Florida,

in his individual and official capacities,

L.J. "Lu" Hindery, Sheriff of Alachua

County, Florida, in his individual and

official capacities, City of Gainesville,

Florida, John Stanton Tileston, Sr.,

Farnell Cole, Charles Jerkins, Spencer

Mann, Stephen Garrahan, Gary Brown and

James Strauss.

- iii -

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..... « « e« e« i

PARTIES TO THE PROCEEDINGS BELOW... ii

TABLE OF AUTHORITIES .......-. iv

OPINIONS BELOW ..<«ce-eeceeee ea i

JURISDICTION . «© 2« © e es ee ec eee 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED -....... 2

STATEMENT OF THE CASE a ae a ee ee ee

REASONS FOR DENYING THE WRIT .... 15

QUESTION I. +. 2 48 + eS Bice we oe

QUESTION II. a? oe ae a oe en ee ee ae oo

CONCIAIGION 2 «© © © © © © wo &© © © eo 8 Oe

APPENDIX A

District Court's excluded

qualified immunity jury

instruction ee ee a ee ee ee ee ee

APPENDIX B

Excerpts from jury

AMSCEUCtIONS Given . . « « « « « « AD

APPENDIX C

District Court Order of

March 4, 1990, Denying

Petitioners' Motions For

Post-Verdict Relief a ae oe ae oe

- iv -

TABLE OF AUTHORITIES

CASES PAGE

’

483 U.S. 635, 107 S.Ct. 3034,

97 L.Ed. 2d 523 (1987) ..... 26

f

925 F.2d 1339 (11th Cir. 1991) . 22

Commissioners of Alachua

, 956 F.2d 1112

(11th Circuit 1992) + » 1,36,38,20

Board of Regents v. Roth,

408 U.S. 564, 92 S.Ct. 2701,

33 L.Ed. 2d 548 (1972) ..... 23

Cleveland Board of Education v.

Loudermill, 470 U.S. 532,

.05 §.Ct. 1487, 88 L.Ed.2d

414, (1985) ie ek ee ge ee eee ee

a Ow ’

457 U.S. 800, 102 S.Ct. avai,

73 L.Ed. 2€ 396 (1982) ..... 26

Hunter v. Bryant,

U.S. , 112 S.Ct. 534,

116, L.Ed. 2d 589 (1991) .. . 27,28

Perry v. Sinderman,

408 U.S. 593, 95 S.Ct. 2694,

33 L.Ed. 2d 570 (1972) ..... 23

lege v. Gi .

U.S. , 111 S.Ct. 1789,

114 L.Ed. 2d 277 (1991) «= @ ae

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

NO. 91-2077

COLLEEN HAYES, NATHANIEL CALDWELL and

TOM ALLISON,

Petitioners,

vs.

GREGG FITZGERALD BAILEY and

LIZZIE SHIRLEY BAILEY,

Respondents.

RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Respondents Gregg Fitzgerald Bailey

and Lizzie Shirley Bailey respectfully

pray that this Court deny the Petition For

Writ of Certiorari to review the questions

Petitioners seek to have reviewed from the

judgment and opinion of the United States

Court of Appeals for the Eleventh Circuit

entered on March 31, 1992.

OPINIONS BELOW

The opinion of the Court of Appeals

is reported at 956 F.2d 1112. This

—

opinion is reproduced in Petitioners!

Petition, and in Respondents' related

Petition For Writ Of Certiorari, No. 92-3.

There was no reported opinion of the

United States District Court for the

Northern District of Florida; its

unreported pretrial order ruling. on

various pretrial motions is reproduced in

Petitioners' Petition and in Respondents’

related Petition For Writ of Certiorari.

JURISDICTION

The judgment of the Court of Appeals

was entered on March 31, 1992. A timely

Petition For Rehearing was denied on June

1, 1992. The jurisdiction of this Court

is invoked under 28 U.S.C.A. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section I of the Fourteenth Amendment

provides: "nor shall any State deprive any

person of life, liberty, or property

without due process of law."

The Civil Rights Act of 1871, 42

- 3 -

U.S.C. §1983 (1982), states in pertinent

part:

Every person, who under color of

any statute, ordinance,

regulation, custom, or usage, of

any State * * *, subjects, or

causes to be subjected, any

citizen of the United States or

other person within the

jurisdiction thereof to the

deprivation’ of any rights,

privileges, or immunities

secured by the Constitution and

laws, shall be liable to the

party injured in an action at

law, suit in equity, or other

proper proceeding for redress.

STATEMENT OF THE CASE

Petitioners' summary statement of the

case omits the factual background that

underlies the rulings of the Courts below

on the issues raised in Petitioners'

Petition and deprives it of validity.

Respondents have set forth the detailed

facts in their Petition For Writ Of

Certiorari (No. 92-3) and will summarize

them here.

Respondent GREGG F. BAILEY

(hereinafter referred to as BAILEY) was in

~— 2

the employment of the Alachua County,

Florida, Department of Corrections

(hereinafter referred to as ACDC) as a

corrections officer on the morning of May

14, 1987. BAILEY was a permanent employee

with constitutionaliy protected property

interests in his job.

Petitioner CALDWELL was ACDC Director

on that date and later became County

Director of Public Safety with supervisory

authority over the ACDC Acting Director.

Petitioner ALLISON was ACDC Assistant

Director on May 14, 1987 (Assistant to

CALDWELL) and later became ACDC Acting

Director under CALDWELL's supervising

authority as Public Safety Directcr. At

all times HAYES was County Personnel

Manager. ALLISON testified that he took

every job action taken as ACDC assistant

or acting Director in respect to BAILEY

after prior consultation with and approval

of CALDWELL and HAYES.

» § «

On April 22, 1987 a jail break was

attempted at ACDC and failed. ACDC

officials immediately determined who was

involved and brought charges against the

perpetrators. BAILEY was not implicated.

After this, one of the inmates’ who

attempted the escape in connection with

his requests for favorable treatment from

ACDC authorities, made vague statements

that a prison guard might have been

involved in the escape. Respondent BAILEY

was his targeted victim.

Over a several day period numerous

AcDC officials and officials eves other

agencies set up, approved or agreed to a

plan to trap BAILEY in an incriminating

act by having the inmate in question hand

him $500 in cash. BAILEY was supposed to

take the money as_ proof that _ he

participated in the escape attempt. (The

Defendants ignored the fact that BAILEY

was required by Florida law, ACcDC

i

=» @ «

regulations and training to seize the

money which was illegal contraband in the

inmate's possession.) ALLISON's office was

established as the headquarters of this

operation, and CALDWELL and HAYES approved

the activities.

BAILEY seized the money and within 4

to 9 minutes was arrested at about 6:30

A.M. on the morning of May 14, 1987.

Although knowledge of this point is not

essential to this particular petition,

BAILEY was never prosecuted on the charges

upon which he was arrested (i.e. aiding

jail break) and all charges against him

were ultimately dropped. From the

beginning BAILEY maintained innocence.

The foregoing records show that what

happened to BAILEY, including all the

wrongful personnel actions, were

deliberately planned and did not occur

spontaneously. As a part of the plan

ALLISON, with CALDWELL's and HAYES!

«9 «

approval, wrote BAILEY a letter dated May

13, 1987 (the day before the arrest)

stating that BAILEY was suspended without

pay as of 7:00 A.M. on May 14, 1987 and

informing him that he had 15 days to

restore the "prerequisites" of his office.

This letter was hand delivered to BAILEY

on the morning of May 14, 1987 shortly

after he was arrested. Alachua County

stopped BAILEY's pay as of 7:00 A.M., May

14, 1987 and he has never again been paid

beginning with that date. Nor has BAILEY

ever had notice or a hearing pertaining to

these matters, except in this and related

litigation.

On May 26, 198, ALLISON without prior

notice to BAILEY or a hearing wrote BAILEY

a second letter stating "effective today

you are placed on suspension without pay

until further notice." (e.s.) CALDWELL and

HAYES approved this letter.

All criminal charges against BAILEY

—

were dropped on November 19, 1987. By

letter of that date, BAILEY wrote CALDWELL

and asked to be reinstated with back pay,

or for a hearing if his request was

denied, or for information about how to

make a request for hearing if he wasn't

doing it correctly. CALDWELL did not

reply, but gave BAILEY's letter to

ALLISON. On December 7, 1987, ALLISON

wrote BAILEY denying his requests for

reinstatement and hearing. CALDWELL and

HAYES approved this letter. More than

seven months later, BAILEY was finally

ordered back to work on June 21, 1988. In

the meantime BAILEY had sought psychiatric

treatment for severe psychiatric damage

the acts of various Defendants had caused,

and he was unable to and has never been

able to return to regular duty because of

these severe psychiatric injuries. His

treatment included an extended stay in a

secured psychiatric unit of the University

o & @

of Florida Shands Teaching Hospital in the

summer of 1988. The unrefuted evidence is

that these injuries were caused by the

various acts Petitioners and other

Defendants took against hin.

BAILEY brought a 42 U.S.C. §1983

action against Petitioners and other

Defendants. Against Petitioners, BAILEY

claimed, in part, a deprivation of

property interests without due process of

law as to suspensions without pay and

without notice and hearing, first on May

14, then May 26, and again on December 7,

and, also claimed constitutional

deprivations for failing to provide post-

deprivation due process at any time. The

District Court dismissed all claims

against Petitioners based upon deprivation

of property without due process as of the

initial peremptory suspension without pay

on the morning of May 14, 1987. Claims

pertaining to that decision are not an

- 10 -

issue in Petitioners' petition, but are

raised in BAILEY's related petition, No.

92-3.

The District Court also dismissed all

Claims against Petitioner Allison on the

grounds of qualified immunity for actions

he took after May 14, 1987. (The Court of

Appeals reversed that ruling and ALLISON

is now a Petitioner on that issue along

with CALDWELL and HAYES). During trial

CALDWELL and HAYES moved for directed

verdicts as to the property deprivation

claims against them for actions taken by

them after May 14, 1987. This motion was

argued extensively after the close of

evidence on the seventeenth day of trial

(R 40-577, pp. 2-58). The District Court

reserved all pending motions and proceeded

to conduct a charge conference to discuss

a packet of jury instructions that the

Court had proposed (R 40-577, 58). This

packet included an instruction on

- es -

qualified immunity. (Attached as Appendix

A. Because this instruction was not given,

it is apparently not in the _ record.)

BAILEY objected to the instruction (R 40-

577-67), and the District Court thereafter

withdrew it stating:

THE COURT: I'll tell you what.

I'm going to take it out.

That's part of the thing that

I've wrestled with this whole

trial. I think really it's

probably a matter of law for me

to decide, as I've done, and I'm

just not ready to make that

decision; I _ can't. We'll

address them again. If you get

an adverse verdict and if you

want to, we'll address this

again. But you're going to

object?

[Objections made]

THE COURT: Seventeen (i.e.,

qualified immunity] is out.

(e.s.) Thereafter the District Court

instructed the jury on the substantive

elements of 42 U.S.C. §1983 liability (R

42-578-pp. 13-17, attached as Appendix B),

and submitted to the jury the question of

whether CALDWELL and HAYES deprived BAILEY

ee

=» 92 «

of property interests in his. public

employment by not giving him hearings he

was entitled to and for continuing to

deprive him of his job, his back pay and

benefits without authority after all the

criminal charges against him had been

dismissed (R 45-578, pp. 24, 25).

To that question the jury returned

the answer, "Yes." Thereafter, on August

16, 1990, CALDWELL and HAYES each filed

renewed Motions Of Directed Verdict Or For

Judgment Notwithstanding The Verdict or

Alternatively For New Trial. Petitioners

CALDWELL and HAYES again asserted, in

part, that the law was not clearly

established during the period May 14, 1987

through June 20, 1988 that BAILEY had a

right to notice and hearing if he was to

be suspended without pay indefinitely.

Petitioners presented memoranda re-arguing

the issue extensively and BAILEY resisted

the motions with arguments.

- 43 =

On March 4, 1991, the District Court

denied Petitioners' motions for post-

verdict relief on qualified immunity

grounds (Appendix C), thereby confirming

his earlier ruling that qualified immunity

was a question of law and confirming his

ruling on that question against these

Petitioners. In short, the District Court

ruled as, a matter of law, that at all

times in question commencing after the

initial peremptory suspension of May 14,

1987 the law was clearly established that

Petitioners could not suspend BAILEY

without pay indefinitely without notice

and hearing in the circumstances of this

case, which were fully known to the

District Court.

In regard to the precise qualified

immunity issue Petitioners now raise in

this Court, Petitioners appealed the

District Court's ruling to the Circuit

Court below and raised the issue as stated

- 14 -

and argued in their initial brief as

follows:

2. As a matter of law, the

District Court erred by not

granting qualified immunity to

CALDWELL and HAYES with respect

to the seven month period

between the withdrawal of

criminal charges and BAILEY's

reinstatement.

Brief of Appellees/Cross Appellants NATE

CALDWELL and COLLEEN HAYES, pp. vi, 26-32,

No. 91-3275, In the United States Court of

Appeals for Eleventh Circuit.

In the meantime BAILEY had appealed

to the Eleventh Circuit asserting that the

District Court had erred to dismiss the

due process claims against Petitioners for

having preemptorily deprived him of his

public employment without notice and

hearing and without pay on the morning of

May 14, 1987. The Court below denied

BAILEY's appeal on this point, 956 F.2d at

1123, and BAILEY has filed a Petition For

Writ of Certiorari in this Court, seeking

further review. (No. 92-3).

o 98 =

The Court below also denied

Petitioners' appeal on the issue they

raise here, stating:

Although the District Court did

not explicitly’ rule on CALDWELL

and HAYES' qualified immunity

defense, we interpret the

District Court's actions as

rejecting that defense.

Furthermore, we agree that

CALDWELL and HAYES are _ not

entitled to qualified immunity

for BAILEY's post-deprivation

procedural due process claims.

REASONS FOR DENYING THE WRIT

QUESTION I. THE COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT APPLIED THE CORRECT

STANDARD IN DETERMINING WHETHER’ THE

DEFENSE OF QUALIFIED IMMUNITY WAS PROPERLY

DENIED TO PUBLIC OFFICIALS IN CONNECTION

WITH AN ALLEGED DENIAL OF PROCEDURAL DUE

PROCESS.

Petitioners began their argument with

a factual statement that BAILEY perceives

'BAILEY contends that the Court below mispoke

when it stated the District Court did not

explicitly rule. The Order of March 4, ’1991 is an

explicit denial. It is true that the District

Court gave no reasons in that summary order, but

the record is replete with citations of authority

and argument that establish that the law was

clearly established that BAILEY might not be

indefinitely suspended without pay and without

notice and hearing on May 14, 1987 and thereafter.

#» 16 «=

to be a flagrant misstatement of the

opinion and holding of the Court below.

Specifically, Petitioners state:

The Eleventh Circuit refused to

decide the threshold _ legal

question required by the Sur -eme

Court to be decided in every

qualified immunity case: Was the

law "clearly established"?

Instead, the Eleventh Circuit in

this case

- Precisely

the issue that the Court itself

must decide in this case -~- what

process was meaningful and when

it was due was dodged by the

Eleventh Circuit and erroneously

sent back to the jury.

Petitioners' Petition, No. 91-2077, pp.

- 7,8.

As the Statement of the Case, above,

demonstrates, both the District Court and

the Court below decided the qualified

immunity issue against Petitioners as a

matter of law. In brief review: at the

charge conference the District Court

stated that he deemed the issue to be one

of law and that he had decided it against

Petitioners. Accordingly, the District

= 39 «

Court withdrew the qualified immunity jury

instruction and, thereafter, instructed

the jury only on liability questions and

not on qualified immunity. The jury

returned a verdict against Petitioners on

liability (i.e. Petitioners did deprive

BAILEY of property without due process of

law). Petitioners then moved for judgment

notwithstanding the verdict on the ground

that they were entitled to qualified

immunity as a matter of law. The District

Court denied that motion and Petitioners

then appealed to the Court below on the

ground that they were entitled to

qualified immunity as a matter of law.

Finally, the Court below denied that

precise appeal.

Hence, contrary to Petitioners'

statement, the Eleventh Circuit did decide

the threshold issue as a matter of law and

“did not relegate the qualified immunity

issue to the jury. Consequently, the

o- 12 «

issue Petitioners attempt to have this

Court review is not raised by the

proceedings below and, consequently, is

not a proper subject of review. For that

reason alone, this Court should deny the

Petition as to Question 1.

It is true that the Court below did

remand the case for retrial on the

question of liability: that is, the Jury

must consider again whether the actions of

CALDWELL and HAYES caused BAILEY to be

deprived of property interests without due

process of law. Nevertheless, the Circuit

Court required the retrial, not because of

qualified immunity, but because of the

improper seating of a juror. (See Petition

No. 92-3). In short, it is’ what

Petitioners did, when they did it, and

whether what they did unconstitutionally

deprived BAILEY of property interests that

the jury must decide anew. The Courts

below settled as a matter of law that if

= 19 «

Petitioners in fact acted wrongfully, then

qualified immunity does not shield them

from liability.

Furthermore, in challenging qualified

immunity as applied by the Court below,

Petitioners failed to explain in their

Petition that the Circuit Court's opinion

was divided into two main sections, (A)

BAILEY's Appeal; 956 F.2d 1119-1125, and

(B) CALDWELL and HAYES' Appeal, 956 F.2d

1125-1127. The Court below explained the

standard for qualified immunity under its

discussion of BAILEY's Appeal and

understandably did not repeat’ that

explanation in the portion of the opinion

pertaining to Petitioner's appeal. In

discussing BAILEY's appeal, the Court

stated:

To defeat a qualified immunity

defense, BAILEY was required to

show that the Defendants

violated a clearly established

statutory or constitutional

right of which a _ reasonable

person would have known.

{citations omitted]. In deciding

whether a constitutional right

Dee

- 20 =

is clearly established, we must

judge the contours of the law at

the time the employment decision

was being made, irrespective of

subsequent developments in the

law. Thus, public officials are

charged with keeping abreast of

the current state of the law,

not anticipating changes.

Whether the law is "clearly

established" is a question of

law under review de novo.

956 F.2d at 1123. Having stated the

qualified immunity standard in BAILEY's

appeal, the Court below turned its

attention to CALDWELL and HAYES' appeal in

Part B and, without restating the standard

cf review, concluded, "Furthermore, we

agree that CALDWELL and HAYES are not

entitled to qualified immunity § for

BAILEY's post-deprivation procedural due

process claims." 956 F.2d at 1126.

Petitioners are disingenuous’ to

suggest that the Court below applied one

legal standard to the qualified immunity

issue in BAILEY's appeal and then applied

a drastically different standard a few

pages later in CALDWELL and HAYES' appeal.

iii aerial

» $3 «

What it is not disingenuous to suggest is

that the Court below perceived that the

law was so well settled on May 14, 1987

and thereafter that BAILEY might not be

indefinitely deprived of his property

interests in his job without pay and

without notice and hearing, that it did

not deem the matter worthy of extended

discussion.

For these reasons, the Petition

should be denied.

QUESTION II. THIS CASE RAISES NO ISSUE OF

WHETHER A PUBLIC OFFICIAL'S DEFENSE OF

QUALIFIED IMMUNITY SHOULD BE SUBMITTED TO

A JURY WHEN IT CANNOT BE RESOLVED

BEFOREHAND BY A MOTION FOR SUMMARY

JUDGMENT BECAUSE OF DISPUTED FACTS.

This Court should deny the Petition

For a Writ to review Question 2 because

the facts and proceedings in this case do

not raise the issue presented in the

question. (Indeed, the Petition plainly

attempts to employ this case as a vehicle

to obtain this Court's review of the

Eleventh Circuit's decision in Ansley v.

eo

=» 22 «

Henrich, 925 F.2d 1339 (11th Cir. 1991).)

(See Petition, pp. 14-19.) First, this

case presented no undisputed facts

pertaining to the qualified immunity

issue; and, second, the law is settled

that the issue of qualified immunity is a

question of law and not a question of fact

to be submitted to the jury under the test

of reasonableness as requested by

Petitioners in this case. (See

Petitioners' requested jury instructions,

Petition No. 91-2077, pp. 8la, 82.)

First, there were no disputed facts

pertaining to the qualified immunity

issue. It is undisputed that BAILEY was a

permanent public employee at all times in

question. Moreover, the law was well

settled by numerous decisions issued by

this Court long before May 14, 1987 that

permanent public employees, such as

BAILEY, possess property interests in

their jobs. It was equally well settled

o $9 «

that these property interests may not

constitutionally be deprived without due

process of law, which requires as a

minimum notice and an opportunity to be

heard. See, e.g., Board of Regents v.

Roth, 408 U.S. 364 (1972) and Perry v.

Sinderman, 408 U.S. 593 (1972). Moreover,

in 1985, two years before these events,

this Court gave specific guidance to

officials such as Petitioners as to how to

proceed when exigent circumstances

required quick decisions; namely, "in

those situations where the employer

perceives a significant hazard in keeping

the employee on the job, it can avoid the

problem by suspending with pay." (e.s.)

veland rd fe) u j Vv.

Loudermill, 470 U.S. 532, 545 (1985). In

fact, however, there were no pressing or

unanticipated circumstances in this case,

and none requiring quick- action. As the

facts presented in the Statement Of The

- 24 -

Case demonstrate, every action Petitioners

took (including the initial May 14, 1987

suspension without pay) was deliberately

planned and executed.

Moreover, there is no dispute that

Petitioners peremptorily suspended BAILEY

without pay and without notice or hearing

on three separate occasions: May 14, 1987,

May 26, 1987, and December 7, 1987. It is

also undisputed that Petitioners never at

any time gave BAILEY notice and hearing

and have never paid him since 7:00 A.M.,

May 14, 1987. In sum, this case involved

no disputed facts that needed to be

settled before the District Court decided

as a matter of law that the law pertaining

to what process is due before depriving

public employees of their jobs was well

settled at all these times and that

veasenibie officials in Petitioners’

places and under these circumstances knew

or should have known their’ actions

j

—

violated BAILEY's clearly established

rights. For this reason, the Petition to

issue a writ to review Question 2 should

be denied.

In a second argument, Petitioners

request this Court to accept review of

this case to decide whether or not

governmental officials are, in effect, to

be given two bites at the qualified

immunity apple. Petitioners seek a rule

that, first, the District Court must

decide whether the rights in question were

Clearly established at the time in the

circumstances, and, if they were, then to

resubmit to the jury the question of

whether Defendant officials acted

reasonably under the circumstances in

violating the clearly established rights.

Petitioners express their view as follows:

In other words if there could

have been a finding that these

public officials, in the light

of the information they

possessed at the time, could

reasonably have believed that

their failing to provide BAILEY

ee

- 26 =

with a hearing was not unlawful,

then the officials would have

been immune from liability.

Petition No. 91-2077, p.15. See also

Petitioners' proposed jury instructions,

Petition No. 91-2077, pp. 8la, 82a.

This assertion is of itself merely an

unexceptional paraphrase of the seminal

holding in Harlow v. Fitzgerald, 457 U.S.

800, 102 S.Ct. 2727, 73 L.Ed.2d 396

(1982), wherein this Court laid down the

prevailing objective standard of qualified

immunity, as follows:

We therefore hold that

government officials performing

discretionary functions

generally are shielded from

liability for civil damages

insofar as their conduct does

not violate clearly established

statutory or constitutional

rights of which a _ reasonable

person would have known.

102 S.Ct. at 2738. See also Anderson v.

Creighton. 483 U.S. 635, 107 S.Ct. 3034,

3040, 97 L.Ed.2d 523 (1987). In applying

the standard of objective reasonableness

in Anderson v. Creighton, this Court made

» 29 «

plain that an official need not

necessarily be right to be immune, 102

S.Ct. at 3042, and that the evaluation of

whether a claimed right was clearly

established must consider the factual

context in which a right is claimed. 107

S.Ct. at 3040. As elaborated in Hunter v.

Bryant, —U.S.__, 112 S.Ct. 534, 116

L.Ed.2d 589 (1991), “the Court should ask

whether the agents acted reasonably under

settled law in the circumstances," 112

S.Ct. at 537 {(e.8.). Furthermore, this

Court has repeatedly stated that the

entire evaluation is a purely legal

question, Siegert v. Gilley, _U.S.__ 111

S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991)

and, that it should be decided by a court

(long before trial if possible) and not by

a jury. Hunter v. Bryant, _U.S._, 112

S.Ct. 534, 537, 116, L.Ed. 589 (1991).

In the context of this case, what

Petitioners ask this Court to do is to

- 28 -

prescribe a rule of law that permits

juries to override the legal decisions of

the District Courts on the question of

whether the "agents acted reasonably under

settled law in the circumstances" of the

particular case, Hunter v. Bryant, with a

subsequent supervening second

determination of-the exact same issue. In

other words, Petitioners advance a rule

that would permit a jury to determine that

the District Court's determination that a

reasonable defendant in the particular

circumstances should have known that its

acts would violate clearly established

rights was itself an unreasonable

determination. This proposition is

antithetical to this Court's precedents on

qualified immunity and to any basic notice

of fair play. Petitioners wish to

submerge the fact that the fundamental

purpose of 42 U.S.C. §1983 actions is to

vindicate the constitutional rights of

~ 4 «

citizens injured by wrongful acts of

public officers and employees. The basic

question is whether the charged agents

caused the Plaintiff to be deprived of

constitutional rights. Although this

Court has judicially acknowledged

immunities to protect erring officials

whose conduct in the ’- circumstances

satisfies the objective reasonableness

standard, it has done so because the

public interest requires it, and not

because erring officials have some sort of

overarching individual right not to be

held liable that prevails over the

constitutional rights of injured citizens.

BAILEY respectfully asserts that one

bite at the qualified immunity apple is

enough. On that one bite, the courts

below applied this Court's precedents

properly and decided as a matter of law

that Petitioners did not act reasonably in

the circumstances in the light of clearly

a $8 =

settled law. For this reason, this Court

should deny the Petition.

Finally, BAILEY acknowledges that

cases may arise in which a District Court

cannot determine the true state of facts

that constitutes "the circumstances." For

example, if at summary judgment in a

police shooting case, the Plaintiff

presents an affidavit that he was lying

spread eagle supine on the ground with

empty hands in broad daylight when the

officer stood over him and shot him in the

chest, and the Defendant officer presents

an affidavit that the Plaintiff was

standing in a crouch in subdued light and

shooting a revolver straight at him, the

District Court will be unable to decide

the qualified immunity question at that

point. If the true facts are as Plaintiff

states them, the Defendant is not immune;

if they are as the Defendant states then,

immunity should be granted.

a $9 «

BAILEY readily agrees that a factual

dispute such as the foregoing hypothetical

would require a jury determination of the

true facts before the Court could decide

the qualified immunity question in the

true circumstances.* In such a case, the

District Court would be required to decide

whether to employ special interrogatories,

special verdicts, or some other approved

technique to obtain the jury's verdict as

to what are the true specific contextual

facts. Such a case may also present an

occasion for this Court to decide whether

one approach is to be used to the

exclusion of ee. This case, however,

presents no such occasion because no

dispute exists as to the true contextual

2BAILEY strongly rebukes’ Petitioners’

suggestion that a Defendant should always win as a

matter of law whenever the true facts about the

circumstances are in dispute. See Petitioners’

Petition No. 91-2077, p. 13, footnote. Such a rule

elevates official immunity to a status far superior

to constitutional rights. It would also mean that

an official could always assure immunity by lying

about the true facts.

pe

- 32 -

facts. For this reason, the Petition

should be denied.

CONCLUSION

The Courts below were cognizant of

and applied the correct principles of

qualified immunity to the procedural due

process violations BAILEY claims

Petitioners committed against him during

the thirteen months following the initial

peremptory suspension without pay, notice

and hearing that occurred on May 14, 1987.

Contrary to Petitioners' assertions in

Question 1, the Courts below did not

submit the issue of qualified immunity for

jury determination in the trial that has

been held, nor did the Circuit Court

instruct the District Court to submit the

issue to jury determination in the retrial

on remand. Instead, the Court below

affirmed the District Court's ruling that,

as a matter of law, Petitioners were not

entitled to qualified immunity under

= 33 -

settled law in the circumstances of this

case. For these reasons, this Court

should deny the Petition For a Writ to

review Question 1.

In Question 2, Petitioners assert, in

effect, that once a District Court

decides, under settled law and in the

circumstances of the case, that the

actions of the Defendants “were not

entitled to qualified immunity because

their actions did not’ satisfy the

objective reasonableness standard, the

Court must thereafter resubmit the same

issue to a jury to reconsider the

reasonableness in the circumstances issue.

This point is thoroughly repudiated by

stable precedents of this Court.

Accordingly, this Court should deny the

writ.

In Question 2, Petitioners also

assert that this Court should issue a writ

to consider how District Courts should

3

*

4

= 34 -

employ juries to ascertain the true facts

when disputes exist as to what were the

true contextual circumstances actually

confronting the parties. As BAILEY has

shown, no. facts’ pertaining to the

circumstances are in dispute in this case.

Consequently, this case does not present a

proper occasion to review the issue and,

accordingly, this Court should deny the

Petition.

Respectfully submitted,

Joseph W. Little

3731 N.W. 13th Place

Gainesville, FL 32605

Attorney for Respondents

’ en

: APPENDIX A

DISTRICT COURT'S EXCLUDED QUALIFIED IMMUNITY

JURY INSTRUCTION

‘eee eters

ict Searels tes»

= ia «

Under the doctrine of "qualified

immunity," government officials performing

discretionary functions generally are

shielded from liability for civil damages

insofar as their conduct does not violate

clearly established statutory or

constitutional rights of which a

reasonable person would have known. The

right the official is alleged to have

violated must have been clearly

established in a more particularized, and

hence more relevant, sense: the contours

of the right must be sufficiently clear

that a reasonable official would

understand that what he is doing violates

that right. The standard is an objective

one, and therefore does not include an

inquiry into the officer's subjective

intent or beliefs. In sum, qualified

immunity protects all but the plainly

incompetent or those who knowingly violate

the law.

The test for qualified immunity is as

- 2a -

follows:

1. The defendant government

official must first prove, by a

preponderance of the evidence,

that he or she was acting within

the scope of his discretionary

authority when the allegedly

wrongful acts occurred.

2. Once the defendant

government official proves that

he or she was acting within the

scope of his or her

discretionary authority, the

burden shifts to the plaintiff

to show lack of good faith on

the defendant's part.

Plaintiff's burden is met by

proof demonstrating that the

defendant public official's

actions violated clearly

established constitutional law.

APPENDIX B

EXCERPTS FROM JURY INSTRUCTIONS

GIVEN BY DISTRICT COURT

- lb -

Now in order to prove a violation of

42 United States Code, Section 1983, the

Plaintiff must prove by a preponderance of

the evidence each of the following facts;

first, that the Defendants intentionally

committed acts which violated one or more

of the Plaintiff's Federal constitutional

rights which I have previously mentioned

to you; second, that in so doing, the

Defendants acted under color of the

authority of the State of Florida; and

third, that the Defendants' acts were the

approximate or the legal cause of the

damages sustained by the Plaintiff.

A state or local official acts under

color of the authority of the state, not

only when he acts within the limits of his

lawful authority, but also when he acts

without or beyond the bounds of his lawful

authority, in order for unlawful acts of

an official to be done under color of

state law; however, the unlawful act must

- 2b -

be done while the official is purporting

to act in the performance of his official

duty, that is, the unlawful act must be an

abuse or misuse of power which is

possessed by the official only because he

is an official.

Not to be deprived of a property or

liberty interest without due process of

law means to be deprived of a property or

liberty interest without authority under

the law. And before you can decide then

whether or not Plaintiff was deprived by a

Defendant of a property or liberty

interest without due process of law, you

must first decide from a preponderance of

the evidence, whether the Defendant

committed the act claimed by the

Plaintiff, and if so, whether the

Defendant was acting within or beyond the

bounds of his or her lawful authority

under state law.

Now if the defendant acted within the

- 3b -

limits of his or her lawful authority

under state law, then the Defendant could

not have deprived Plaintiff of any right

without due process of law. Now a county

government may only be held liable for

deprivation of constitutional rights which

are the results of unconstitutional

governmental policies. Since governmental

bodies can act only through natural

persons, the county government may be held

liable when an only when its official

policies cause its employees to violate

another person's constitutional rights.

It is for you, the jury, to determine

whether their decisions have caused the

deprivation of rights and issues. by

policies that command that deprivation

occurred.

Now you are further instructed that

in determining whether any Defendant is

liable under Title 42 United States Code,

Section 1983, for depriving the Plaintiff

- 4b -

of a constitutional right you are to

consider only the action or inaction of

each named Defendant and not that of any

other person concerning whom you may have

heard testimony. Each Defendant is liable

only for his or her actions or for those

of other persons that he or she personally

directly approved or in whose conduct he

or she knowingly acquiesced.

Personal involvement of supervisory

officials is a touchstone of their

liability. They are not liable for civil

rights violations, simply because of the

actions of their support. Thus, to meet

his burden of proof of personal

involvement by these Defendants, Plaintiff

must prove as to each, not only that his

rights or rights as set forth above are

violated, but also that the injuries

resulted from such violation or violations

were caused personally by that Defendant

or at his or her personal direction or

~ 5b -

that he or she knowingly acquiesced in

acting, causing that injury.

Personal participation in the

immediate act is not required. It is

sufficient if the Defendant intentionally

set in motion or knowingly refused to

terminate a series of acts by others which

he knew or reasonably should have known

would cause the proscribed injury to the

Plaintiff. Now if any injury or damage is

legally caused by an act or a failure to

act, whenever it appears from the evidence

in the case that the act or the omission

played a substantial part in bringing

about or actually causing the injury or

damage, and that the injury or damage was

either a direct result or a reasonably

probable consequence of the act or the

omission. Now if you should find in favor

of the Defendants of each and every clain,

you need not consider damages. If on the

other hand, you should find that Plaintiff

- 6b -

has proven each essential element of any

given claim, then you must determine what

damages, if any, are owed to the Plaintiff

because of that Defendant's constitutional

violation.

APPENDIX C

DISTRICT COURT ORDER

OF MARCH 4, 1990

DENYING PETITIONERS MOTIONS

FOR POST-VERDICT RELIEF

- lc -

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

Case No. GCA 88-10198-MMP

GREGG FITZGERALD BAILEY and

LIZZIE SHIRLEY BAILEY,

Vv.

BOARD OF COUNTY COMMISSIONERS OF

ALACHUA COUNTY, FLORIDA, et al.,

Plaintiffs,

Ve

BOARD OF COUNTY COMMISSIONERS OF

ALACHUA COUNTY, FLORIDA, et al.,

Defendants

ORDER

[Filed Mar. 4, 1991]

This cause is before the court on

various outstanding motions. Plaintiff's

motion for Judgment Notwithstanding the

Verdict (Doc. 482) is DENIED; Defendant

Caldwell's renewed motion for Directed

Verdict, Judgment Notwithstanding the

Verdict, and for a New Trial (Doc. 485),

is DENIED; Defendant Hayes' renewed motion

for Directed Verdict, Judgment

Notwithstanding the Verdict, and for a New

Trial (Doc. 487). is DENIED. The following

motions will be ruled on by separate

order:

(1) City's motion for attorneys'

fees (Doc. 505).

- 2c -

(2) City's motion for costs (Doc.

506).

(3) Plaintiff's motion to strike

City's motion for costs (Doc.

521). .

(4) County's motion to tax costs

(Doc. 523).

(5) Joinder of defendant's Garrahan,

Brown, Strauss and Allison in

County's motion to tax costs

(Doc. 522).

(6) Motion to tax costs by

defendants” Hindery and Cole

(Doc. 524).

(7) Defendant Tileston's motion for

costs (Doc. 527).

(8) Plaintiff's - motion to strike

Tileston's motion for costs

(Doc. 543). 7

(9) City's motion to require

plaintiffs to post bond (Doc.

545).

DONE AND ORDERED this list day of March, 1991.

/s/ Maurice M. Paul

United States District Judge