Opposition Brief — City of Los Angeles v. Jackson

No. 92-1645

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

THE CITY OF LOS ANGELES,

Petitioner,

vs.

JOHNNY LEE JACKSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

MICHAEL P. STONE

Counsel of Record

STONE & FEELEY

() South Flower Street, Fourth Floor

Los Angeles, California 90071

(213) 236-9670

Attorneys for Respondent

JOHNNY LEE JACKSON

Lawyers Brief Service * Appellate Brief Printers © (213) 613-1013 * (714) 720-1510

QUESTIONS PRESENTED

1. In this matter, the Court of Appeals’ decision is

consistent with the framework developed by this Court in

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), 106

S.Ct. 1292, 89 L.Ed.2d 452 (1986) and City of St. Louis

v. Praprotnick, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d

107 (1988), and creates no conflicts among the lower

courts.

2. The holding that a police employee may not be

constitutionally discharged for exercising his Fourth

Amendment rights is consistent with this Court’s decisions

and creates no conflict among the lower courts.

3. The Court of Appeals’ decision is consistent with the

framework developed by this Court in National Treasury

Employees Union v. Von Raab, 489 U.S. 656, 103 S.Ct.

1384, 103 L.Ed.2d 685 (1989) and Railway Labor

Executives Association v. Skinner, 489 U.S. 602, 109 S.Ct.

1402, 103 L.Ed.2d 639 (1989), and creates no conflict

among the lower courts.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........0.c000005 i

TABLE OF AUTHORITIES .............2.. 1V

STATEMENT OF THE CASE .. ws wee e ewe l

REASONS FOR DENYING THE WRIT ........ 3

I. IN THIS MATTER, THE COURT OF

APPEALS’ DECISION IS CONSISTENT

WITH THE FRAMEWORK DEVELOPED

BY THIS COURT IN PEMBAUR V. CITY

OF CINCINNATI, AND CITY OF ST.

LOUIS V. PRAPROINIGR ccc es 3

A. PETITIONER DOES NOT CLAIM THAT

THE COURT OF APPEALS’ DECISION

CREATES A CONFLICT AMONG THE

CARED 0.0.5 kes eee eee 3

B. THE COURT OF APPEALS PROPERLY

DECIDED THE CASE UNDER THE

PEMBAUR AND PROPRATNICK

ED 8k 0 0 ae bees ee ee 3

C. THE COURT OF APPEALS DECISION

CONSTITUTES A FACT-SPECIFIC

DETERMINATION UNDER

PRAPROTNICK AND THEREFORE

DOES NOT WARRANT REVIEW ...... 5

-ji-

I.

Page

THE HOLDING THAT A POLICE

EMPLOYEE MAY NOT BE

CONSTITUTIONALLY DISCHARGED

FOR EXERCISING HIS FOURTH

AMENDMENT RIGHTS IS CONSISTENT

WITH THIS COURT’S DECISIONS

AND CREATES NO CONFLICT AMONG

ee 6: y ¢. 8

A. PETITIONER HAS FAILED TO

CITE ANY AUTHORITY FOR

THE PROPOSITION THAT A

PUBLIC EMPLOYEE MAY BE

DISCHARGED FOR EXERCISING

A CONSTITUTIONAL RIGHT ........ 8

B. PETITIONER FAILS TO

DISTINGUISH THIS COURT'S

DECISIONS HOLDING THAT A

PUBLIC EMPLOYEE MAY NOT BE

DISCHARGED FOR EXERCISING

A CONSTITUTIONAL RIGHT ........ 9

-iii-

III. THE COURT OF APPEALS’ DECISION

IS CONSISTENT WITH THE

FRAMEWORK DEVELOPED BY THIS

COURT IN NATIONAL TREASURY

EMPLOYEES UNION V. VON RAAB,

AND RAILWAY LABOR EXECUTIVES

ASSOC. V. SKINNER, AND

CREATES NO CONFLICT

AMONG THE LOWER COURTS .....

A. THERE IS NO DISPUTE OR

CONFLICT REGARDING THE

APPLICABILITY OF THE

BALANCING TEST IN

VON RAAB TO THIS CASE .......

B. THE COURT OF APPEALS

DETERMINED THAT JACKSON

HAD A LEGITIMATE EXPECTATION

OF PRIVACY AGAINST AN

INDIVIDUALIZED SEARCH

BASED WHOLLY ON A

SUPERVISORS UNFETTERED

foe ae ee eee

ee eer re eee eee er Se

-iv-

Page

TABLE OF AUTHORITIES

Page

Cases

City of St. Louis v. Praprotnick

485 U.S. 112, 108 S.Ct. 915

99 L.Ed.2d 107 (1988) ........... 3, 4, 5, 6

Connick v. Meyers

461 U.S. 138, 103 S.Ct. 1684

9 & @ fi.) 2 ee 9

Copeland v. Philadelphia

Police Department

840 F.2d 1139 (3rd Cir. 1988) ............ 12

Everett v. Napper

S33 F.20 1507 (ith Cir. 1967) . 20 es 9

Fraternal Order of Police,

Lodge No. 5 v. Tucker

OOS F280 Pe Cre Ce. USGS) 6 ee cee 12

Gardner v. Broderick

392 U.S. 273, 88 S.Ct. 1913,

p eee Re er ee ear 9

Garrity v. New Jersey

385 U.S. 493, 87 S.Ct. 616

gem * £2). 3) Sree ree a 9

Guiney v. Roache

873 F.2d 1557 (1st Cir. 1989)

cert. denied; 493 U.S. 963,

110 S.Ct. 404, 107 L.Ed. 2d 370 (1989) ..... 12

Page

Kirkpatrick v. City of

Los Angeles

gus F.20 465 (th Cir. 1966) .. 1. ww ces 8

Los Angeles Police Protective

League v. Gates

907 F.2d 879 (9th Cir. 1990) ........... 8, 9

McKinley v. City of Eloy

ae ame babe Cre Cet. FSGS)... we 9

National Federation of Federal

Employees v. Cheney

884 F.2d 603 (D.C. Cir. 1989) ........... 12

National Treasury Employees

Union v. Von Raab

489 U.S. 656, 103 S.Ct. 1384,

iS 1.9.26 GBS (1969) .. 2.2 se 8, 11, 12, 13

Pembaur v. City of Cincinnati

475 U.S. 469, 106 S.Ct. 1292

Oe Rate. ae Oe CIFEO) ow 3, 4, 5, 6,7

Pickering v. Board of Education

391 U.S.563

88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)........ 9

Policemen’s Benevolent

Association of New Jersey, Local 318 v.

Township of Washington

850 F.2d 133, 135 (3rd Cir. 1988) ......... 12

-vj-

Page

Railway Labor Executives Assoc. v. Skinner

489 U.S. 602, 109 S.Ct. 1402,

103 L.Ed.2d 639 (1989) ........ Se, 85. kas oe

STATUTES

Oe ee Se kG ee ee ee ee 2, 4

CONSTITUTION

United States Constitution,

Fourth Amendment ......... S: fc i he

-Vil-

No. 92-1645

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

THE CITY OF LOS ANGELES,

Petitioner,

v.

JOHNNY LEE JACKSON,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondent Johnny Lee Jackson was a regularly-

appointed member of the Los Angeles Police Department,

who could be discharged only “for cause” under City

Charter Section 202 when, on February 21, 1986, at about

1:30 a.m., Internal Affairs Division (“IAD”) officials

arrived unannounced at Jackson’s home when Jackson was

asleep, and demanded that he submit to urine testing

immediately because he was suspected of ingesting cocaine.

IAD officials who were surveilling the target of the

investigation, Officer John Leach, had seen Jackson in the

company of Leach on two occasions on February 13 and

20, 1986, after the two left work at Southwest Area Station

together. On the first occasion, while Jackson waited in

the car, Leach went into two different large apartment

houses suspected to be “narcotics locations”. Jackson was

never a target of the investigation, but since he was in the

company of Leach (who was suspected of using cocaine),

IAD officials wanted a sample from Jackson to determine

whether he was also possibly using cocaine.

After some discussion at Jackson’s home, the IAD

officials took Jackson against his will to Parker Center,

some 25 miles away, for the sole purpose of obtaining the

urine sample. There, Jackson refused to comply with the

order, relying on a Department rule that “substantial

evidence” of ingestion must exist before an employee can

be ordered to supply a testing sample in_ these

circumstances.

Jackson was charged only with insubordination for

refusing the order and was discharged by Chief Gates.

Jackson was never accused of being involved in drug use

Or possession in connection with these circumstances.

Jackson utilized the grievance procedure and after a

hearing on the merits, an independent neutral ordered

Jackson reinstated with full back-pay and benefits (about 1-

1/2 years after the discharge) because investigators did not

have substantial evidence of drug use or involvement.

Jackson sought further relief in the District Court in a

lawsuit under 42 USC Section 1983, which was tried to a

jury. A verdict was returned in favor of Jackson against

Chief Gates and the City of Los Angeles.

The jury was instructed that an officer could not

constitutionally be discharged for refusing to obey an

unconstitutional order.

In the Court of Appeals, Jackson’s judgment was

affirmed on the basis that the Fourth Amendment may be

violated where the discharge is based upon an order which

is contrary to the protections of the Fourth Amendment,

and on the basis that Gates, in acting to discharge Jackson,

and as the final policymaker under local law, subjected the

City to liability under Section 1983.

Petitioner’s request for rehearing and rehearing en banc

were denied.

This petition follows.

rw

REASONS FOR DENYING THE WRIT

I.

IN THIS MATTER, THE COURT OF

APPEALS’ DECISION IS CONSISTENT

WITH THE FRAMEWORK

DEVELOPED BY THIS COURT IN

PEMBAUR V. CITY OF CINCINNATI,

AND CITY OF ST. LOUIS Vz.

PRAPROTNICK, AND CREATES NO

CONFLICTS AMONG THE LOWER

COURTS.

A. PETITIONER DOES NOT CLAIM THAT THE

COURT OF APPEALS’ DECISION CREATES A

CONFLICT AMONG THE CIRCUITS.

Petitioner’s brief nowhere alleges that this Court of

Appeals decision creates a conflict among the circuit courts

with respect to the holding that Chief Gates acted as a final

policymaker in his decision to discharge Officer Jackson

from police employment. Hence, there is no reason for

this Court to grant the petition on this point. Moreover, as

appears below, the decision correctly follows this Court’s

holdings on the subject.

B. THE COURT OF APPEALS PROPERLY

DECIDED THE CASE UNDER THE PEMBAUR

AND PROPRATNICK DECISIONS.

1. The holding in Praprotnick -- whether under

state law, Chief Gates was the official with final

policymaking authority -- was correctly applied to the facts

in this case.

In City of St. Louis v. Praprotnick, 485 U.S. 112, 108

S.Ct. 915, 99 L.Ed.2d 108 (1988), this Court held that the

question of whether an official was clothed with final

policymaking authority is to be determined by reference to

the applicable provisions of state law. There is no dispute

that the applicable state law -- the charter of the City of

Los Angeles -- vests Chief Gates with final policymaking

authority in matters of the discipline of police officers

generally, and in particular, in regard to decisions to

discharge them from employment. Accordingly, the Court

of Appeals decision follows Praprotnick and there is no

reason for review of the decision on that point.

2. The Doctrine of Respondeat Superior plays

no role in the decision of this case.

Contrary to petitioner’s assertions, the Court of Appeals

opinion constitutes neither a reintroduction of respondeat

superior, nor an incorrect application of the plurality

holding in Pembaur v. City of Cincinnati, 475 U.S. 469,

106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). After all, it is

not disputed that Chief Gates is the City official with final

policymaking authority over the discipline of police

officers. As such, his decisions are those of the City.

Likewise, a suit against a policymaker in his official

capacity is nothing more than an action against the City

itself. In these circumstances, the doctrine of respondeat

superior is not implicated. Pembaur, 475 U.S. at 481.

There was a “policy” involved in this case. The “obey

now--grieve later” rule requires Los Angeles officers to

obey orders of their superiors (in our case, to submit to

suspicion-based, compelled urinalysis) or face the lash of

administrative discipline. The only recognized exceptions

to the rule are where the order requires the recipient to

commit an unlawful act, perform an immoral act, or

unreasonably endanger someone’s safety. Chief Gates’

position throughout this action has been consistent: since

the order to Jackson involved none of the three exceptions,

his duty was to obey and seek relief through the grievance

procedure -- after surrendering his Fourth Amendment

rights.

As the Court of Appeals noted, no one claims the City

has a policy of requiring employees to submit to

unconstitutional searches. Nevertheless, the

insubordination rule described above requires unquestioning

obedience to “lawful” orders. Even if it develops that the

order is unconstitutional, the employee who chooses to

disobey, does so at his peril.

C. THE COURT OF APPEALS _ DECISION

CONSTITUTES A FACT-SPECIFIC

DETERMINATION UNDER PRAPROTNICK AND

THEREFORE DOES NOT WARRANT REVIEW.

Petitioner attempts to distinguish this case, where the

insubordination policy and the Memorandum of

Understanding provisions on suspicion-based drug testing

were in place, from a hypothetical situation where a final

policymaker acts in a circumstance when there is no policy

one way or the other. There is no distinction. Where a

final policymaker inflicts a constitutional injury, it makes

no difference whether his act is a mistaken attempt to apply

existing rules, or an isolated act carried out where no rules

govern. The constitutional harm is inflicted by the

municipality, since the act is that of the entity itself.

For support of this perceived distinction, petitioner

quotes from Pembaur, 475 U.S. at 482-483 (see

petitioner’s brief at pp. 21-23). The passage selected by

petitioner omits the all-important sentence which

immediately follows:

The official must also be responsible for

establishing final government policy

respecting such activity before the

municipality can be held liable.

Since Chief Gates is the official responsible for

establishing final City policy respecting the discipline of

police officers, the Court of Appeals decision is in accord

with the Pembaur plurality opinion.

At 475 U.S. at 483, this Court said:

We hold that municipal liability attaches

where -- and only where -- a deliberate

choice to follow a course of action is made

from among various alternatives by the

official or officials responsible for

establishing final government policy

respecting such activity before the

municipality may be held liable. fn. 12.

In applying Pembaur and Praprotnick, the Court of

Appeals determined under the isolated and specific facts of

this case, that Gates acted with final policymaking authority

vested in him by local law, in deciding to discharge

Jackson.

High ranking government officials normally and

routinely perform discretionary acts within circumstances

where there are policies, regulations and other government

restrictions in place. Every such act can be linked to some

identifiable source of policy. Petitioner’s assertion that a

final policymaker’s act can create municipal liability only

7%

when he acts in an area where no policy is present -- thus

by his act making policy -- world be a rare, if not

impossible occurrence. Petitioner’s view, if adopted,

would create an exception in every case that would swallow

up the rule that a final policymaker’s unconstitutional act

within his area of final policymaking authority creates

municipal liability. No case supports this view.

Petitioner’s discussion of footnote 12 is also flawed, by

omission of the clarification that if the hypothetical sheriff

did have final policymaking authority over county sheriff

employment policy, his discretionary decisions respecting

hiring and firing would represent county policy and would

give rise to entity liability. Again, the Court of Appeals’

disposition of this matter correctly follows Pembaur.

Accordingly, on these points, the decision does not merit

review.

IT.

THE HOLDING THAT A POLICE

EMPLOYEE MAY NOT BE

CONSTITUTIONALLY DISCHARGED

FOR EXERCISING HIS FOURTH

AMENDMENT RIGHTS IS

CONSISTENT WITH THIS COURT’S

DECISIONS AND CREATES NO

CONFLICT AMONG THE LOWER

COURTS.

A. PETITIONER HAS FAILED TO CITE ANY

AUTHORITY FOR THE PROPOSITION THAT A

PUBLIC EMPLOYEE MAY BE DISCHARGED

FOR EXERCISING A CONSTITUTIONAL

RIGHT.

The Fourth Amendment protects municipal employees

from unreasonable employer searches of the person in the

disciplinary context. National Treasury Employees Union

v. Von Raab, 489 U.S. 656, 103 S.Ct. 1384, 103 L.Ed. 2d

685 (1989); Railway Labor Executives Assoc. v. Skinner,

489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed. 2d 639 (1989);

Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (9th Cir.

1986). Thus, a suspicion-based search and seizure of body

fluids conducted pursuant to administrative order based

upon pain and penalty of insubordination for refusal to

obey implicates the Fourth Amendment and is only lawful

if it is reasonable. Discipline for insubordination must be

predicated only upon the refusal to obey a lawful order;

that is, one that is constitutionally reasonable. Los Angeles

Police Protective League v. Gates (hereafter, “LAPPL v.

Gates”) 907 F.2d 879, 886 (9th Cir. 1990). In the event

of a “refusal” no search occurs. The order alone, which

is not obeyed, is not a constitutional wrong. The order

alone constitutes only a threat that discipline will be

forthcoming. Improvident orders can be withdrawn, and

no one would say that liability would flow from an

unreasonable order which is promptly withdrawn, or where

the refusal to obey is ignored and no adverse action

follows. No harm occurs until discipline is initiated.

Then, the Fourth Amendment is violated and any resulting

discipline is unconstitutional. LAPPL v. Gates, 907 F.2d

at 895; Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987).

So, in our facts, the constitutional harm was inflicted not

by the investigators who gave the order, but rather by

Chief Gates who discharged Jackson ffor his

“insubordination”. Nevertheless, the constitutional injury

to Jackson stems from his Fourth Amendment rights.

B. PETITIONER FAILS TO DISTINGUISH THIS

COURT’S DECISIONS HOLDING THAT A

PUBLIC EMPLOYEE MAY NOT BE

DISCHARGED FOR’ EXERCISING A

CONSTITUTIONAL RIGHT.

This Court has held that public employees’ First

Amendment rights may be violated by punishing the lawful

exercise thereof, as well as by restraining lawful speech in

the first place. Pickering v. Board of Education, 391 U.S.

563, 88 S.Ct. 1731, 20 L.Ed. 2d 811 (1968), Connick v.

Meyers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed. 2d 708

(1983); McKinley v. City of Eloy, 705 F.2d 1110 (9th Cir.

1983). Further, public employees’ Fifth Amendment rights

are violated by disciplining them for refusal to waive their

rights against self-incrimination as a condition of

employment. Garrity v. New Jersey, 385 U.S. 493, 87

S.Ct. 616, 17 L.Ed.2d 562 (1967); Gardner v. Broderick,

392 U.S. 273, 276-79, 88 S.Ct. 1913, 20 L.Ed. 2d 1082

(1968). By parity of reasoning, Jackson’s punishment

-Q-

violated the Fourth Amendment because he was made to

suffer job loss as a consequence of the lawful exercise of

the right to refuse an unconstitutional search. Apart from

this reasoning, whether the punishment for Jackson’s

refusal to obey an unconstitutional order is deemed to

violate the Fourth Amendment or the Fourteenth

Amendment due process clause, will not change the

consequences of that act, nor the result approved by the

Court of Appeals.

It is true that respondent initially claimed violations of

his Fourth and Fourteenth Amendment rights. The latter

claim was based on the theory that Gates’ action was

arbitrary and irrational. The District Court and the Court

of Appeals disagreed. However, simply because Gates’

action may not have been irrational does not mean it did

not violate due process if the order upon which it was

predicated was unconstitutional. All agree that a police

officer may not be punished for refusing to obey an

unconstitutional order. While acknowledging this,

petitioner would have this Court deny an aggrieved officer

recovery for consequential damages unless the

governmental conduct was irrational. The due process

clause is not so impotent. Petitioner fails to see a

distinction in due process claims which allege solely that

the government conduct was arbitrary and irrational, from

those as here, where the government action implicates an

independent constitutional right -- the Fourth Amendment.

If petitioner is correct that the government action became

a due process violation once discipline was undertaken,

then it must also accept that the due process clause

provides a remedy once it is established that the discipline

is based upon the refusal to obey an order which, standing

alone, is unconstitutional. To hold otherwise would deny

constitutional protection in all cases except only the most

16.

egregious, irrational, arbitrary and wholly unreasonable

acts of final policymakers.

Finally, Petitioner fails to acknowledge or distinguish

this Court’s decisions holding that public employees may

not constitutionally be discharged for exercising a

constitutional night.

Il.

THE COURT OF APPEALS’ DECISION

IS CONSISTENT WITH THE

FRAMEWORK DEVELOPED BY THIS

COURT IN NATIONAL TREASURY

EMPLOYEES UNION V. VON RAAB,

AND RAILWAY LABOR EXECUTIVES

ASSOC. V. SKINNER, AND CREATES

NO CONFLICT AMONG THE LOWER

COURTS.

A. THERE IS NO DISPUTE OR CONFLICT

REGARDING THE APPLICABILITY OF THE

BALANCING TEST IN VON RAAB TO THIS

CASE.

Carefully drawn government testing regulations approved

in Von Raab and Railway Labor Executives Assoc.

eliminate the need for individualized suspicion because they

do not involve the exercise of supervisory discretion in

selecting who will be tested, and when and how it will

occur. Consequently, the potential for arbitrariness and

abuse is non-existent.

On the other hand, here the Court of Appeals determined

that where, on the basis of investigatory activity, a police

officer is taken form his home in the middle of the night

-]1-

against his will, and ordered to provide a sample of his

urine for testing because he is individually suspected, a

“reasonable suspicion” standard should be respected. In

applying the balancing test of Von Raab, to the specific

facts of this case, the Court of Appeal cetermined that the

order was not reasonable.

Random and event-triggered testing provisions frequently

do coexist with suspicion-based provisions within the same

government regulations. See, for example, National

Federation of Federal Employees v. Cheney, 884 F.2d 603,

605-06 (D.C. Cir. 1989); Guiney v. Roache, 873 F.2d

1557 (1st Cir. 1989), cert. denied, 493 U.S. 963, 110

S.Ct. 404, 107 L.Ed. 2d 370 (1989); and Policemen’s

Benevolent Association of New Jersey, Local 318 v.

Township of Washington, 850 F.2d 133, 135 (3rd Cir.

1988).

Other cases approve of the “reasonable suspicion”

standard in suspicion-based testing. See, for example,

Copeland v. Philadelphia Police Department, 840 F.2d

1139 (3rd Cir. 1988); and Fraternal Order of Police,

Lodge No. 5 v. Tucker, 868 F.2d 74 (3rd Cir. 1988).

However, there are no cases which suggest or adopt

petitioner’s view that Von Raab and Railway Labor

abolished the need in every case for reasonable suspicion

to support a suspicion-based order. On these grounds as

well then, no review is warranted.

it.

B. THE COURT OF APPEALS DETERMINED

THAT JACKSON HAD A_ LEGITIMATE

EXPECTATION OF PRIVACY AGAINST AN

INDIVIDUALIZED SEARCH BASED WHOLLY

ON A SUPERVISOR’S UNFETTERED

DISCRETION.

The decision only holds that, unlike Railway Labor and

Von Raab, the facts of this case concern a wholly unbridled

exercise of supervisory discretion in singling out Jackson

for testing. Since, under the facts, the search order was

not reasonable, it violated the Fourth Amendment. Again,

there is nothing in the opinion that warrants review.

CONCLUSION

For all of the above reasons, it is respectfully suggested

that the petition should not be granted.

Dated: May 25, 1993

Respectfully submitted,

MICHAEL P. STONE

Counsel of Record

43.