Reply Brief — Knop v. McGinnis

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Bopreme Cour, U.S

FILED

MAR 3 1993

No. 92-1202

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1992

GARY KNOP, et al.,

Petitioners,

KENNETH L. McGINNIS, e¢ ai.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

. TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITIONERS’ REPLY MEMORANDUM

Elizabeth Alexander

(Counsel of Record)

Adjoa A. Aiyetoro

David C. Fathi:

Alvin J. Bronstein

National Prison Project

of the ACLU Foundation

1875 Connecticut Avenue, N.W.

Suite 410

Washington, DC 20009

(202) 234-4830

Patricia A. Streeter

1816 One Kennedy Square

Detroit, MI 48226

(313) 962-1177

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CASILLAS PRESS, INC., 1717 K STREET, N.W., WASHINGTON, D.C. 20036

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..... .

ee ee ee ee ee ee ee ee ee

CUNCTUSION . . « © © «0 « «

TABLE OF AUTHORITIES

Alabama v. Pugh, 438 U.S. 781

(1978) (per curiam) .. «+ -«+ses2we B®

City of Canton v. Harris, 109 S.Ct.

1197 (1989). . «. « « « « « «© « + passim

Kentucky v. Graham, 473 U.S. 159

(1985) e e _ e ” s ° . s . e e ° 3

Poe v. Haydon, 853 F.2d 418

(6th Cir. 1988) ° . . . e 2 . . o o 5-6

Rizzo v. Goode, 423 U.S. 362

(1976) +. . . . . 2 o . o © 2 > o . . 6,

ARGUMENT

The respondents suggest several

arguments in an attempt to distinguish City

of Canton v. Harris, 109 S.Ct. 1197 (1989),

from this case. First, the respondents

argue that the standard used by the court of

appeals in reversing the district court is

not "substantively different" from the City

of Canton standard. Respondents’ Brief at

14. However, as demonstrated in the

petition for certiorari, the trial court

made all the findings required under City of

Canton to hold a _ governmental entity

responsible for a constitutional violation

actually executed by individual employees.

The court of appeals did not reverse any of

these findings as clearly erroneous, or even

indicate a disagreement with these

findings.’ Instead, the court of appeals

' Respondents suggest that "the outcome

of this case depends solely upon its own

unique facts." Respondents’ Brief at 14.

However, the court of appeals did not

(continued...)

reversed because it applied a different

standard to the trial court’s findings; the

court of appeals found that the respondents

did not "encourage" the racial harassment.

App. at 32.

Under the deliberate indifference

standard of City of Canton, the focus is on

the degree of fault that "must be evidenced

by the {[government’s} inaction before

liability will be permitted." Id. at 1204.

(Emphasis supplied).

In contrast, the "encouragement"

standard applied by the court of appeals in

this case seems to assume that inaction can

never make a governmental unit responsible

for constitutional violations by its

employees. By requiring that the

'(...continued)

reverse any of the trial court’s findings as

clearly erroneous. Necessarily, then, the

critical factor was the court of appeals’

application of its own standard rather than

the City of Canton standard.

If this case turned on its facts, the

trial court should have been affirmed.

policymakers actively promote or "encourage"

the constitutional violation, the court of

appeals failed to heed the teaching of City

of Canton.

Respondents also suggest that City of

Canton does not apply because that case

involved municipal defendants, while in this

case state officials are defendants. See

Respondents’ Brief at 17-21.7 Because the

petitioners in this case seek injunctive

relief, however, the state officials sued in

their official capacities have the same

defenses as those available to municipal

defendants. See, e.g., Kentucky v. Grahan,

473 U.S. 159, 166-167, 169 n.18 (1985).

2 Respondents appear to suggest that

the Department of Corrections should have

been named as a defendant. See Respondents’

Brief at 15. Of course, the Department of

Corrections was not a proper defendant; the

proper defendants for claims requesting

injunctive relief were the state officials

sued in their official capacities.

, 438 U.S. 781 (1978) (per

curiam).

Similarly, the respondents argue that

the persons who carried out the deprivation

of constitutional rights in this case are

individual officers who are not sued as

defendants.’ In City of Canton, however,

this Court indicated that a municipality as

an entity would be liable for a policy or

custom of failing to train its police

officers if that policy resulted in injury.

Accordingly, the issue in City of Canton was-

precisely the circumstances in which

governmental policymakers, and thus’ the

governmental unit as ane entity, are

responsible for a constitutional violation

executed by individual employees.

. The respondents suggest that the

racial slurs were caused by "a few non-party

prison authorities." Respondents’ Brief at

be Respondents’ characterization of the

record is unsupported by the actual findings

of the trial court. The trial court

"specifically [did] not find that most

correctional staff endage in this kind of

behavior. A sufficiently large number do,

however, tc expose black inmates to a

constitutionally intolerable atmosphere of

racial harassment." App. at 124.

The respondents also seek to

distinguish City of Canton by arguing that

that case describes the standard for

"failure to train" cases. See Respondents’

Brief at 9-10. While true, this observation

does not assist respondents. In essence,

the petitioners’ claim here is that the

responsible defendants failed to supervise

the staff who engaged in racial slurs. In

City of Canton, the Court repeatedly cites

cases involving claims of a failure to

supervise employees as examples of cases

involving "failure to train" claims. See,

e.g., 109 S.Ct. at 1204 n.6; see also id. at

1209 (O’Connor, J., concurring).

Respondents also appear to suggest that

an official policy or custom of racial

harassment cannot violate the Constitution.

See Respondents’ Brief at 24-25. None of

the cases cited by respondents supports such

an argument. In fact, Poe v. Haydon, 853

F.2d 418, 429 (6th Cir. 1988), cited by

respondents at p.24 of their brief, holds

that "(tjhe case law before December 1984

established that sexual harassment by

government employees would violate the

rights protected by the equal protection

clause." Harassment on the basis of race

surely has no- greater’ constitutional

protection than harassment on the basis of

sex.

Finally, respondents argue that Rizzo

vy. Goode, 423 U.S. 362 (1976), requires a

"deliberate plan" of misconduct by the named

defendants. Respondents’ Brief at 21. In

fact, Rizzo does not speak of a "deliberate

plan." Rather, Rizzo notes that, in that

case, "there was no affirmative link between

the occurrence of the various incidents of

police misconduct and the adoption of any

plan or policy by petitioners." Rizzo at

S72. But City of Canton is completely

consistent with Rizzo. Under City of

Canton, the "affirmative link" demanded by

Rizzo is supplied when the governmental unit

is deliberately indifferent to

unconstitutional acts by its employees,

resulting in a "policy or custom" of

misconduct. In this case, the trial court

found both conscious indifference* and the

existence of a "policy or custom." Under

these circumstances, petitioners met the

standard for relief set forth in City of

Canton and the court of appeals erred in

reversing.

CONCLUSION

For all the reasons set forth herein,

petitioners urge that the Court grant

certiorari.

. See discussion in petitioners’

opening brief at 18-19, n.6.

Dated:

March

Respectfully submitted,