Opposition Brief — Scott v. Henrich

No. 94-1738

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

DORIS A. SCOTT,

Individually and as Personal

Representative of tue Estate of JOHN WILLIAM

SCOTT, deceased,

Petitioner,

-vVs-

JAMES L. HENRICH, DAVID J. FLAMAND, BUTTE-

SILVER BOW LAW ENFORCEMENT AGENCY, CITY

OF BUTTE, and COUNTY OF SILVER BOW,

Respondents.

Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

RESPONDENTS' BRIEF IN OPPOSITION

Brendon J. Rohan

Counsel of Record

Poore, Roth &

Robinson, P.C.

1341 Harrison Avenue

Butte, MT 59701

Tele: (406) 782-1223

Attorneys for Respon-

dents, Henrich,

Flamand, and Butte-

Silver Bow Law

Enforcement Agency

Marshal L. Mickelson

Corette, Pohlman, Allen,

Black & Carlson

P.O. Box 509

Butte, MT 59703

Tele: (406) 723-3205

Attorneys for Respon-

dents, City of Butte

and County of Silver

Bow

f f

iy i.

I.

QUESTION PRESENTED FOR REVIEW

The Restated Question For Review Is:

Whether the Circuit Court correctly ruled,

after resolving all factual disputes in favor of the

Petitioner and considering all evidence in the

record, including expert testimony and circumstan-

tial evidence which if believed could convince a

rational fact finder that the law enforcement

officers acted unreasonably, all of which was

proffered by the Petitioner, that the law enforce-

ment officers' use of deadly force was objectively

reasonable and constitutionally permissible under

the circumstances of this case?

)

ii

TABLE OF CONTENTS

PAGE

I. QUESTION PRESENTED FOR REVIEW .. i

TABLE OF CONE MUES ccc vee eseues ii

TAD CE CAR «4 0a ee ee ee ee iv

II. et Bee ee er ee 1

III. STATEMENT OF THE CASE ........ 1

IV. SUMMARY OF ARGUMENT ......... 8

V. AERA «6 6 0 88 Ha eee OO 8 9

A. THERE ARE NO SPECIAL AND

IMPORTANT REASONS FOR

GRANTING SCOTT'S PETITION

FOR A WRIT OF CERTIORARI .... 9

1. The Ninth Circuit Court

Of Appeals Followed The

Accepted And Usual Course

Of Judicial Proceedings

In Rendering Its Decision

ey 2s Be ee ee ee ee ee 9

2. The Circuit Court's Opinion

Followed The Mandates Of

This Court's Applicable

po eee re ee ee 10

B. CONSIDERING THE IMMINENT,

LETHAL THREAT POSED BY JOHN

SCOTT TO INNOCENT PERSONS,

INCLUDING THE LAW ENFORCE-

MENT OFFICERS, THEIR USE OF

DEADLY FORCE WAS JUSTIFIED

AND OBJECTIVELY REASONABLE .. 11

iii

TABLE OF CONTENTS (continued)

PAGE

1. The Circuit Court Properly

Resolved The Issue Of

Qualified Immunity By

Summary Ruling ......+.+2e-. 12

2. The Law Enforcement Officers

Were Not Constitutionally

Mandated To Choose The Least

Intrusive Alternative To

Effect The Seizure Of John

tn? 6-4 e's fs 2s eee ee 8 8 8 14

3. No Interdepartmental Policies

Of The Law Enforcement Agency

Were Intended To Protect An

Unidentified, Violent Suspect

Who Was Indiscriminately

Firing A High-Powered Rifle In

Residential Neighborhoods .... 16

4. The Municipal Defendants

Cannot Be Held Liable Absent

A Constitutional Violation ..... 17

a 17

APPENDIX

United States District Court

MEMORANDUM AND ORDER

dated November 17, 1988 .... App. 1

iv

TABLE OF CASES

Anderson v. Creighton, 483 U.S. 635

ne & 4 os 5 6 a Ok ee ke ees 13, 14

Celotex Corp. v. Catrett, 477 U.S. 317

ce 6 4 0 8 ae 8 ee Se Se OS Oe 13

City of Los Angeles v. Heller, 475 U.S.

: 21 aoe er ere 17

Graham v. Connor, 490 U.S. 386 (1989) . . 2, 10,

Mitchell v. Forsyth, 473 U.S. 511 (1985) . 13

Scott v. Henrich, et al., 39 F.3d 912

Cee Gas SE 6 6 & 6 Oe ote Fee ee a a, 4,

30, 312, 14, 15, 16

Scott v. Henrich, et al.. 700 F. Supp. 498

SO SS ee eee ee 1

Texas v. Mead, 465 U.S. 1041 (1984)

ees Sask 4 A ee ee OR OR eS 11

United States v. Johnson, 268 U.S. 220

to | eee ys ae ee ee 11

1

Il.

OPINIONS BELOW

Petitioner (hereafter Scott) failed to identify

the original opinion entered by the federal district

court out of which Scott's Petition ultimately

arises:

3. Scott v. Henrich, et al., 700 F. Supp. 498

(D. Mont. 1988).

Ill.

STATEMENT OF THE CASE

Respondents provide the following

corrections, clarifications, and additions to Scott's

STATEMENT OF THE CASE:

The district court initially entered a

MEMORANDUM AND ORDER on November 17, 1988,

CR 96, concluding that the law enforcement officers

had sufficient probable cause to effectuate a

seizure of decedent John Scott. 700 F. Supp. at

505. It further ruled that Scott would be granted

an additional 60 days to conduct discovery on the

"issue of the reasonableness of the Defendant

officers' conduct... ." Id. at 511. The burden

was properly placed upon Scott "to establish the

existence of a genuine issue of material fact

regarding the reasonableness of the actions taken

by [the] officers . . . in effectuating the seizure of

John Scott...." Id. Discovery beyond the

parameters of the court's Order was. stayed

pending a determination of the potential liability of

the law enforcement officers. Id.

2

A final MEMORANDUM AND ORDER was filed

by the district court on January 3, 1991, which,

inter alia, incorporated the reasoning of its

November 17, 1988, decision. CR 174 at 1l. The

court analyzed the conduct of the law enforcement

officers utilizing the “objective reasonableness"

standard set out by this Court in Graham v.

Connor, 490 U.S. 386 (1989). Id. at 3. In spite of

the court's grant of additional pre-trial discovery

time, Scott was unable to come forward with suf-

ficient evidence "to establish the existence of a

genuine issue of material fact..." to show that

the conduct of the officers, under’ the

circumstances with which they were presented, was

unlawful. Id. at 8. On appeal, Scott did not

challenge the district court ruling that probable

cause existed for the "seizure" of John Scott.

In four separate opinions issued by the

Circuit Court, see Pet. App. 11-57, it consistently

held that, based on the factual circumstances

confronting the law enforcement officers, their

conduct was "objectively reasonable” thereby

entitling them to judgment in their favor. Scott v.

Henrich, et al., 39 F.3d 912, 916 (9th Cir. 1994).

The fatal shooting of John Scott happened at

1 North Clark Street, not 701 West Park as stated

in the Petition. Pet. at 8, 11, 12. CR 138 at 62-63,

117. The intersection of Park and Clark Streets is

a major thoroughfare in a highly populated resi-

dential neighborhood consisting primarily of two

and three-story apartment buildings. Clark Street

is a main route to the local hospital. Id. at 115.

When Sergeant Henrich was first dispatched to a

reported disturbance call at 7014 West Park Street

on the afternoon of August 4, 1984, he spoke with

an unknown individual standing on the sidewalk on

3

the Park Street side of an apartment building at the

intersection of Park and Clark Streets. This

unknown individual advised that the disturbance

was over. Sergeant Henrich did not learn until the

following day, August 5, that the person he spoke

with was John Scott. CR 139 at 44-45, 47.

At approximately 8:20 p.m. on the same

date, a man and a woman ran into the police station

and very excitedly told Sergeant Henrich to "get

some officers down to the 600 block of Colorado,

there was somebody, some person down there

shooting ata kid... ." Id. at 58, 62. When the

officers arrived at the shooting scene, the victim of

the shooting was extremely agitated and stated

"that crazy son of a bitch tried to kill me." Id. at

66, 69. A bullet hole was observed and a

Winchester .30/.30 caliber rifle cartridge was

recovered. Id. at 68, 71. Within minutes of this

shooting, the officers received a second report that

a man was firing a gun at 701 West Park Street. All

officers responded to this location with lights and

siren in full operation. Id. at 71, 74.

Upon arrival at the site of the second

shooting, the officers were advised that a man

acting "strange or crazy" fired a rifle and entered

one of two doors located on the east side, the Clark

Street side, of a two-story apartment complex at

the corner of Park and Clark Streets. CR 138 at

117. The officers were unsure of the location of

the armed suspect in the apartment complex or even

if he remained in the building. Id. at 62, 67, 91.

When officers approached the last known location of

the shooting suspect, they were all in full police

uniforms, four police vehicles with overhead illumi-

nated revolving warning lights were in operation

outside of the apartment building. Id. at 119.

4

Sergeant Henrich both knocked on and

kicked on the door where the armed suspect

reportedly entered and shouted out "open up,

police" loud enough so that an occupant of another

apartment in the complex heard the command. Id.

at 119; CR 42, Ex. A. After a short period of time,

John Scott, who was extremely intoxicated having a

blood alcohol level of .312, opened the door holding

a rifle. CR 138 at 135; Scott v. Henrich, et al., 39

F.3d at 915 n.2.

Despite verbal commands to drop his gun,

John Scott raised the rifle and pointed it at the

officers. Officer Flamand shot at John Scott

because, as he explained in his own words:

3. When someone points a gun at you,

"more than likely he is going to

shoot;"

2. When he first observed Scott in the

doorway, he had already leveled his

gun at the officers so they were at a

disadvantage;

3. He was dealing with an armed man

who, as far as he was concerned, had

already tried to kill another man at 623

South Colorado Street;

4. He believed the person who fired a

rifle at Park and Clark Streets was the

same person who had fired a rifle at

623 Colorado Street;

5. He was unsure if anyone had already

been chot;

5

6. He heard a gunshot that he believed

was fired by Scott.

CR 138 at 88.

Sergeant Henrich fired his weapon at John

Scott because he feared for his own life and

thought that he was about to be shot. He

intentionally shot after he ordered John Scott to

"drop the gun." But, rather than obeying this

lawful order, Scott responded by raising the rifle

and pointing it directly at Sergeant Henrich. CR

139 at 135.

John Scott was not shot in the back, as

alleged by the Petitioner. Physical evidence and

expert testimony documented that John Scott was

facing the law enforcement officers at the time the

shots were first fired. "Stippling" was found on

the lower left quadrant of his body which was

caused by glass, pieces of the screen from the

storm door, and gun powder residue striking his

body. CR 66, Ex. 9. "Stippling" only occurs if a

person is alive at the time of a shooting. CR 42,

Ex. 11. A forensic scientist confirmed that John

Scott had to be facing the officers at the time of the

shooting in order to cause the "stippling" on the

front of Scott's body. Id. at 75-76.

Contrary to Scott's assertions, there was no

evidence in the record establishing that either the

"barricaded suspect" or "tactical plan" policies of

the law enforcement agency applied to the factual

circumstances of this case. The "barricaded

suspect" policy only applied after a suspect was

located and it was confirmed he was refusing to

voluntarily surrender. CR 155 at 44, CR 161 at 26,

44, 48, CR 162 at 34-37. The law enforcement of-

6

ficers testified that their primary objective when

they arrived at the scene of the second shooting

was to locate the suspect who posed an immediate

and imminent danger to innocent persons in a

residential neighborhood.

[A]t that time, we had no idea where

the suspect was in relation to the

building, if he had stayed in the

building or if he was in the upstairs,

downstairs. You really couldn't

determine from looking at the two

doors where they led to.

* * *

We were trying to locate the suspect.

He was firing a gun and we felt it was

of the utmost importance to locate him

as soon as possible to stop him from

firing enymore.

CR 138 at 62-63, 132.

By definition a suspect cannot be "barricaded" un-

til he is located.

Similarly, Scott has taken the testimony of

Undersheriff Lee out of context in an attempt to

imply that some unidentified "tactical plan" policy

applied to the situation confronting the law

enforcement officers in this case.

Q. [D]Joes the term "tactical

response” mean anything to

you?

A. (Lee) I don't believe it applied

in this particular case. The

officers responded to a call. I

wouldn't necessarily refer to it

ee

7

or describe it as a_ ‘tactical

response.’

** *

Q. So 'tactical response' can be

used as just a generic term,

can't it?

A. I do have a problem with the

term 'tactical' as you are using

it.

CR 137 at 12-13.

Undersheriff Lee offered no _ opinions

regarding any specific policy of the law

enforcement agency. He was not directing his

answers regarding ‘formulating [a] plan' at any

particular policy of the law enforcement agency.

Following the shooting of John Scott, a

comprehensive investigation was undertaken. As

part of that investigation, an autopsy was

performed by an independent pathologist. CR 172.

A coroner's jury was impaneled and an inquest

conducted. CR 42, Ex. A. Based on all of the

evidence presented during the inquest, the coro-

ner's jury concluded that the officers' use of

deadly force was justified. Id. at 172. An

Interdepartmental Shooting Review Board also

determined, following two days of testimony and

presentation of evidence, that the officers’ use of

deadly force was justified and "in accordance with

departmental policy." CR 66; CR 137, Ex. A.

8

IV.

SUMMARY OF ARGUMENT

Scott's Petition for a Writ of Certiorari is no

more than her final attempt to convince this Court

of last resort that every other court that has

reviewed the circumstances of this case is wrong.

She is asking this Court to be the ultimate "fact

finder," a role this Court has_ consistently

rejected. Scott's Petition does not raise any special

or important reasons which would justify this Court

in exercising its discretion to accept the Writ of

Certiorari. Her concemnation of the Circuit Court

opinion is unjustified both factually and legally.

The procedural record in this case speaks for itself

regarding the close scrutiny and attention afforded

to Scott throughout the proceedings below. No

issue of national significance is implicated by

Scott's Petition.

The Circuit Court correctly followed the

mandates of this Court in reaching its decision.

The conduct of the law enforcement officers was

measured against the constitutionally mandated

standard of "objective reasonableness." When all

factual disputes were resolved in favor of Scott,

taking into consideration all circumstantial evidence

and expert testimony, the conduct of the law

enforcement officers comported with all

constitutional mandates. Although other

alternatives may have been available to the law

enforcement officers to deal with the life-

threatening situation presented by John Scott's

indiscriminate firing of a high-powered rifle in

residential neighborhoods, the officers were not

constitutionally bound to choose the alternative

which Scott's expert believed was best or least

9

intrusive. Rather, the law enforcement officers

were duty-bound to act within the parameters of

constitutionally acceptable conduct, i.e., objective

reasonableness. Having met this constitutional

standard, the Circuit Court properly affirmed

judgment in their favor.

V.

ARGUMENT

A. THERE ARE NO SPECIAL AND IMPORTANT

REASONS FOR GRANTING SCOTT'S

PETITION FOR A WRIT OF C/ERTIORARI.

1. The Ninth Circuit Court Of Appeals

Followed The Accepted And Usual

Course Of Judicial Proceedings In

Rendering Its Decision In This Case.

Scott has not presented any legitimate basis

for the granting of the Petition. Scott's

unsubstantiated and groundless accusations that

the Circuit Court "decision has so far departed

from the accepted and usual course of judicial

proceedings as to call for an exercise of this

Court's power of supervision,” Pet. at 27, should

be summarily rejected. Scott's own rendition of the

procedural history of this proceeding belies this

charge. The record on appeal clearly documents

that this case was the subject of intense scrutiny.

Otherwise, it would not have required four

separate decisions over a 24 year period to reach

the ultimate disposition of this case. It is

disingenuous for Scott to attempt to justify this

Court's acceptance of the Petition by ridiculing the

Circuit Court, particularly in light of the

procedural appellate history of this case.

10

The true basis of Scott's Petition is not, as

she alleges, that the Circuit Court has departed

from the accepted and usual course of judicial

proceedings. Rather, what she truly seeks is

review in this Court because she is dissatisfied

with the outcomes below. Every entity that has

been called upon to review the circumstances of

this case, beginning with the law enforcement

investigative team and proceeding through the

coroner's inquest, the Shooting Review Board, the

federal district court, and finally the Ninth Circuit

Court of Appeals on four separate occasions, has

reached the same conclusion. The conduct of the

law enforcement officers in responding to the grave

threat posed by John Scott was justified, i.e.,

“objectively reasonable." The Circuit Court

comported with the acceptable and usual course of

judicial proceedings in reaching its final decision.

3. The Circuit Court's Opinion Followed

The Mandates Of This Court's

Applicable Decisions.

The decision in this case was based on the

established precedent of this Court. The Circuit

Court citing Graham v. Connor, 490 U.S. 386

(1989), recognized that law enforcement officers

were held to aie standard of "objective

reasonableness." Scott v. Henrich, et al., 39 F.3d

at 914. The court refused to apply the standard of

care proposed by Scott, i.e., that of unlimited

liability regardless of the factual circumstances

confronting law enforcement officers. What Scott is

requesting this Court to do is grant certiorari to

analyze every "fact" found in the record and deter-

mine if it too would have reached the same

conclusion as every other court that has been

called upon to do so. This procedure has long been

11

proscribed by this Court. "We do not grant

certiorari to review evidence and Ciscuss specific

facts." United States v. Johnson, 268 U.S. 220,

227 (1925). See also, Texas v. Mead, 465 U.S.

1041 (1984) (Stevens, J.).

It is not the function of this Court to second-

guess the courts below. It properly should deter-

mine whether there was some identifiable conflict

between the opinion of the Circuit Court in this

case and the decisions issued by this Court.

Because no such conflict exists, regardless of how

many times and how many ways Scott characterizes

her displeasure with the ultimate ruling of the

Circuit Court, the Petition should be denied.

Scott's condemnation of the Circuit Court's ruling

is unjustified and unsupported by either the facts

or the applicable law.

B. CONSIDERING THE IMMINENT, LETHAL

THREAT POSED BY JOHN SCOTT TO

INNOCENT PERSONS, INCLUDING THE LAW

ENFORCEMENT OFFICERS, THEIR USE OF

DEADLY FORCE WAS JUSTIFIED AND

OBJECTIVELY REASONABLE.

When John Scott chose to point a rifle at the

law enforcement officers, ignoring warnings to

"drop the gun," they acted in an objectively

reasonable manner by discharging their firearms in

defense of themselves and in defense of innocent

bystanders. "Objective reasonableness" is the

measure of constitutionally permissible conduct

under the circumstances of this case. Graham v.

Connor, 490 U.S. at 397. The Circuit Court

decision followed the dictates of this Court

promulgated in Graham.

12

The Circuit Court did not, as argued by

Scott, give "remarkably short shrift" to her

arguments that the alleged "tactical response" of

the officers violated Fourth Amendment standards.

Pet. at 17. Rather, the court recognized its

obligation to "carefully examine" all evidence in the

record, including expert testimony, to ensure that

the officers have "not tak[en] advantage of the fact

that the witness most likely to contradict [their]

story, the person shot dead, is unable to testify."

Scott, 39 F.3d at 915. The court noted that it

could not accept "self-serving accounts by the

police officer[s]." Id. It applied the stringent

standard of whether all of the evidence proffered

by Scott, considered in the light most favorable to

the Petitioner, "could convince a rational fact

finder that the officer[s] acted unreasonably." Id.

Because Scott could not meet this burden of proof,

presenting adequate evidence which could convince

a rational fact finder that the officers acted

unreasonably, summary judgment was mandated.

"[DJefendants can still win on summary judgment if

the district court concludes, after resolving all

factual disputes in favor of the plaintiff, that the

officers' use of force was objectively reasonable

under the circumstances." Id.

1. The Circuit Court Properly Resolved

The Issue Of Qualified Immunity By

Summary Ruling.

Simply because Scott presented evidence

from her retained expert that, in his opinion, other

alternatives could have been utilized to effect the

seizure of John Scott does not mandate a jury trial.

If so, the defense of qualified immunity would

never be susceptible to summary ruling. Scott's

argument thereby conflicts with the pronounce-

Nid RE IA. ty a aI I PE eh plat a

ith ina. Soule

aS alin 0A Niet hes SMI lang EBON

13

ments of this Court regarding a government

official's right to resolve qualified immunity

questions at the earliest appropriate opportunity.

Rule 56 must be construed with due

regard not only for the rights of

persons asserting claims . . . that are

adequately based in fact to have those

claims tried to a jury, but also for the

rights of persons opposing such claims

to determine in the manner

provided by the rule, prior to trial,

that the claims . . . have no factual

basis.

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)

(emphasis added).

The Circuit Court was keenly aware that

when qualified immunity is raised as a defense by

law enforcement officers to a claim of unconsti-

tutional conduct, as it was in this case, the

qualified immunity question should be resolved at

the earliest possible stage of litigation. Mitchell v.

Forsyth, 473 U.S. 511, 526 (1985). This Court has

established that summary judgment is appropriate

when discovery does not produce evidence

sufficient to create a genuine issue of material fact.

Id. Because qualified immunity is "immunity from

suit rather than a mere defense to liability . . . [it]

is effectively lost if a case is erroneously permitted

to go to trial." Id.

This Court described the importance of

qualified immunity questions being resolved at the

earliest possible opportunity in Anderson v.

Creighton, 483 U.S. 635 (1987):

14

One of the purposes of the Harlow

qualified immunity standard is_ to

protect public officials from the

internal broad ranging discovery that

can be ‘particularly disruptive of

effective government.' (Citations omit-

ted). For this reason, we have empha-

sized qualified immunity questions

should be resolved at the earliest

possible stage of a _ litigation.

(Citations omitted).

Id. at 646 n.6.

2. The Law Enforcement Officers Were

Not Constitutionally Mandated To

Choose The Least Intrusive

Alternative To Effect The Seizure Of

John Scott.

The Circuit Court followed the mandates of

this Court in upholding summary judgment in favor

of the law enforcement officers. Scott contends

that because the retained expert presented alter-

native courses of action which the law enforcement

officers may have followed, a jury question was

presented. Scott misses the point of the Circuit

Court's constitutional analysis. "[A]s the text of

the Fourth Amendment indicates, the appropriate

inquiry is whether the officers acted reasonably,

not whether they had less intrusive alternatives

available to them." Scott, 39 F.3d at 915.

The Circuit Court pointed out why "endless

second-guessing of police decisions made under

stress and subject to the exigencies of the moment"

cannot be a basis for liability.

3

3

Dt

%

3

i

2

i

rf

3

&

3

aN Rt Site Machetes tenes,

;

:

.

4

4

15

Requiring officers to find and choose

the least intrusive alternative would

require them to exercise superhuman

judgment. In the heat of battle with

lives potentially in the balance, an

officer would not be able to rely on

training and common sense to decide

what would best accomplish his

mission. Instead, he would need to

ascertain the least’ intrusive

alternative (an inherently subjective

determination) and choose that option

and that option only. Imposing such a

requirement would inevitably induce

tentativeness by officers, and thus

deter police from protecting the public

and themselves.

The opinions of Scott's retained expert

graphically demonstrate the "endless second-

guessing of police decisions" which the Circuit

Court warned against. What Scott continues to

argue is for the adoption of "the 20/20 vision of

hindsight" rejected by this Court in Graham v.

Connor, 490 U.S. at 396. Therefore, although the

opinions of Scott's experts may raise an issue of

whether a less intrusive alternative was available to

the officers, it does not conflict with the Circuit

Court's ruling that the alternative chosen by the

officers was "objectively reasonable" and thereby

constitutionally acceptable.

16

3. No Interdepartmental Policies Of The

Law Enforcement Agency Were

Intended To Protect An Unidentified,

Violent Suspect Who Was

Indiscriminately Firing A _ High-

Powered Rifle In Residential

Neighborhoods.

The Circuit Court correctly ruled that no

interdepartmental policy of the law enforcement

agency was relevant to the question of the objective

reasonableness of the conduct of the law enforce-

ment officers. It properly placed the testimony of

Undersheriff Lee in the context in which his

answers to Scott's questions were posed. Under-

sheriff Lee did not, as represented by Scott,

testify that the barricaded suspect and tactical

plan policies of the law enforcement agencies were

intended to protect suspects like John Scott. His

testimony was actually that the policies referenced

by Scott were not even implicated et the time of the

shooting.

The policies of the law enforcement agency

could only reach constitutional significance if they

were relevant to the actual factual circumstances

presented to the officers. The Circuit Court

examined the policies and concluded "[b]Joth the

guidelines at issue here and the context in which

they appear in the police manual show they were

meant to safeguard the police and other innocent

parties, not the suspect." Scott, 39 F.3d at 915-

16.

The court did not simply disregard the

policies, as argued by Scott. It fairly analyzed the

content and context of the policies to determine

their relevance to the objective reasonableness

bans bade

Bie BA 0s Oca DEAN A EIS BRO RE

Schad me Sa a nad

17

inquiry. Having done so, it concluded that, even

giving the benefit of the doubt to Scott, the

policies could not form the basis of a constitutional

claim against the law enforcement officers.

Therefore, there was no triable issue of fact raised

by the law enforcement agency's guidelines, rules,

and policies.

4. The Municipal Defendants Cannot Be

Held Liable Absent A Constitutional

Violation.

The potential liability of the Butte Law

Enforcement Agency and Butte-Silver Bow County

were derivative from Scott successfully estab-

lishing a constitutional claim against the law

enforcement officers. Because summary judgment

was properly granted in favor of the law

enforcement officers, no individual liability can

now arise against the Law Enforcement Agency and

Butte-Silver Bow County. "[Nleither Monell. .

nor any other of our cases authorizes the award of

damages against a municipal corporation based on

the actions of one of its officers when .. . the

officer inflicted no constitutional harm." City of

Los Angeles v. Heller, 475 U.S. 796, 799 (1986)

(per curiam). The Circuit Court properly applied

this rule to the municipal Defendants.

Vi.

CONCLUSION

Scott's Petition for a Writ of Certiorari

should be denied. There is no factual or legal

basis which would justify this Court in exercising

its discretion to grant the Petition. The conduct of

the law enforcement officers was "objectively

18

reasonable," no more is expected nor demanded by

the United States Constitution.

"We

Respectfully submitted this b day of June,

1995.

Brendon J. Rohan

Counsel of Record

POORE, ROTH & ROBINSON, P.C.

1341 Harrison Avenue

Butte, Montana 59701

Attorneys for Respondents,

JAMES L. HENRICH, DAVID J.

FLAMAND, and BUTTE-SILVER

BOW LAW ENFORCEMENT

AGENCY

Marshal L. Mickelson

CORETTE, POHLMAN, ALLEN,

BLACK & CARLSON

P.O. Box 509

Butte, Montana 59703

Attorneys for Respondents,

CITY OF BUTTE and COUNTY

OF SILVER BOW

APPENDIX

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

DORIS A. SCOTT,

individually and as

Personal Representa- NO. CV-87-003-BU-PGH

tive of the Estate

of JOHN WILLIAM

SCOTT, deceased,

Plaintiff,

vs.

JAMES L. HENRICH,

DAVID J. FLAMAND,

BUTTE-SILVER BOW

LAW ENFORCEMENT MEMORANDUM

AGENCY, CITY OF AND ORDER

BUTTE, and COUNTY

OF SILVER BOW,

Defendants.

The plaintiff brings this civil rights action

pursuant to 42 U.S.C. § 1983. The plaintifi also

advances numerous pendent claims for relief

predicated upon the law of the State of Montana.

The matter is presently before the court on motion

of all named defendants requesting the court to

enter summary judgment in their respective favors

upon those claims for relief prosecuted under 42

U.S.C. § 1983. The defendants further request

the court to refrain from exercising its pendent

jurisdiction over those claims advanced by the

plaintiff which are predicated upon Montana law.

App. 2

Filed contemporaneously with, and in obvious

response to, the defendants’ motions for summary

judgment was a motion by the plaintiff seeking

leave of court to amend the complaint. Because

disposition of the defendants' motion for summary

judgment would be directly affected by disposition

of the plaintiff's motion to amend, the court appro-

priately addresses the motions simultaneously.

As

This action has its genesis in the shooting

death of John Scott by a law enforcement officer in

the employ of Butte-Silver Bow County, Montana

(hereinafter the "County").’ According to the

allegations advanced in the complaint by Doris A.

Scott, the widow of John Scott, police officers

James L. Henrich and David J. Flamand responded

to a call on August 4, 1984, regarding the

discharge of a firearm in the location of the

intersection of Park and Clark Streets in Butte,

'The complaint names as defendants the "City of

Butte" and "County of Silver Bow". The court

notes these two former governmental entities were

consolidated in 1977 to form a single governmental

entity denominated Butte-Silver Bow County,

Montana.

The complaint also names both the Butte-Silver Bow

law enforcement agency and Butte-Silver Bow as

defendants. The latter entity is the local

governmental entity. The former agency is the law

enforcement department of Butte-Silver Bow,

created pursuant to local ordinance promulgated

under authority of state law. Mont. Code Ann. §

7-3-1104. For purposes of determining liability

under 42 U.S.C. &§ 1983 and 1988, both of the

defendant entities are properly considered as the

local governmental entity.

App. 3

Montana. Upon their arrival at the location, the

officers were advised, by a local resident, that an

individual had fired a rifle in the area and had

entered a nearby apartment. While the precise

events which transpired immediately following the

officers' arrival may prove to be the subject of a

factual dispute, for purposes of providing

background, it suffices to summarize that officers

Henrich and Flamand, with weapons drawn, went to

the door of the apartment which they were apprised

the perpetrator had entered, and that John Scott

responded to the officers’ announcement by

opening the door of the apartment. As events

transpired, shots were fired by Officer Flamand

which resulted in the death of John Scott. The

officers have stated John Scott was in possession of

a shotgun at the time he opened the door, and the

officers fired their weapons when Scott pointed the

shotgun at Sergeant Henrich.

Doris Scott, individually and as_ personal

representative of the estate of her deceased

husband, instituted the present action under 42

U.S.C. § 1983 against officers Henrich and

Flamand, the Butte-Silver Bow law enforcement

agency and Butte-Silver Bow County, Montana,

claiming that the defendants’ conduct violated the

rights secured John Scott by the fourth and

fourteenth amendments to the United States

Constitution.” Scott also advances a myriad of

Scott also alleges a violation of the due process

clause of the fifth amendment. The fifth

amendment, however, constrains the conduct of the

federal government and its actors, and will not

serve as the basis of a section 1983 claim. See,

Brower v. Inyo County, 812 F.2d 540, 545 (9th

Cir. 1987). Scott's fifth amendment claim is simply

duplicative of her fourteenth amendment claim.

App. 4

claims predicated upon the law of the State of

Montana.

Il.

In her original complaint Scott alleges that

the conduct of officers Henrich and Flamand

negligently caused the suffering and ultimate death

of John Scott. With respect to the County, Scott

alleges those entitles were negligent in their

selection, training and supervision of Henrich and

Flamand, as well as in the formulation and enforce-

ment of policies and procedures governing the

conduct of the officers within their employ, and

that such negligence was the cause of the

constitutional deprivations suffered by John Scott.

Scott seeks to amend her complaint, as originally

filed, to allege the conduct of the defendants which

led to the purported deprivation of John Scott's

constitutional rights was grossly negligent in

nature, amounting to a deliberate indifference by

the defendants. Furthermore, Scott seeks to

further allege that the defendant entities actually

endorsed the alleged grossly negligent conduct of

officers Henrich and Flamand.

Characterizing Scott's proposed amendment

to the original complaint as an attempt to artfully

plead around the defendants’ motions for summary

judgment, the defendants object to Scott's request

for leave as untimely, and imply that amendment to

the pleadings should not be allowed during the

pendency of a motion for summary judgment. The

defendants submit the original complaint fails to

state a civil rights claim cognizable under 42

U.S.C. § 1983, since the complaint only sets forth

See, Smith v. City of Fontana, 818 F.2d 1411, 1424

(9th Cir. 1987).

}

}

7

H

3

4

i

:

}

i

i

i

a

App. 5

allegations of simple negligence.

While some courts have refused leave to

amend the pleadings sought after the opposing

party has moved for summary judgment, see, e.g.,

Freeman v. Continental Gin Company, 381 F.2d 459

(Sth Cir. 1967), rehearing denied, 384 F.2d 365,

the fact that a party seeks to amend his pleading

after a motion for summary judgment has been filed

by the opposition is an insufficient basis, in and of

itself, to deny leave to amend. See, United States

v. Webb, 655 F.2d 977, 979 (9th Cir. 1981);

Sherman v. Hallbauer, 455 F.2d 1236 (5th Cir.

1972). As a general rule, where the amendment

sought alleges a different or more refined theory of

liability or defense, a court should hold a motion

for summary judgment in abeyance pending

submission of the opposing party's proposed

amended pleading. See, Adzaidi v. Ehrlich, 732

F.2d 1218 (5th Cir. 1984). Cognizant of the nature

of the amendment to the complaint which Scott

seeks, the court is convinced the interests of

justice dictate that Scott be afforded the oppor-

tunity to amend her complaint. The allegations of

the complaint, as amended, are sufficient to state a

claim under 42 U.S.C. § 1983.

In Daniels v. Williams, 474 U.S. 327, 330-32

(1986), the Supreme Court held that "the Due

Process Clause is simply not implicated by a

negligent act of an official causing an unintended

loss of or injury to life, liberty or property."

(emphasis in original.) The Court reiterated in

Davidson v. Cannon, 474 U.S. 344, 347 (1986),

that the due process restrictions "are just not

triggered by lack of due care" by state officials,

and therefore allegations of negligence do not state

a claim cognizable under 42 U.S.C. § 1983. The

Court in Daniels expressly reserved the question

“whether something less than intentional conduct,

App. 6

such as recklessness or ‘gross negligence,’ is

enough to trigger the protections of the Due

Process Clause." Daniels, 474 U.S. at 334 n.3.

Since Daniels this circuit has followed earlier

case law holding that the Due Process Clause can

be implicated by conduct of state officials

amounting to "recklessness," or "gross negligence"

or "deliberate indifference". See, Wood v.

Ostrander, 851 F.2d 1212, 1214-15 (9th Cir. 1988)

(recognizing that the intentional assertion of

government power which tends to show a disregard

for a claimant's safety was sufficient to state a

claim under section 1983); Estate of Conners v.

O'Connor, 846 F.2d 1205, 1208 (9th Cir. 1988)

(conscious indifference amounting to gross

negligence is sufficient to state a claim under

section 1983); Ketchum v. County of Alameda, 811

F.2d 1243, 1246 and n.3 (9th Cir. 1987) (gross

negligence is sufficient to state a claim under

section 1983); Bergquist v. County of Cochise, 806

F.2d 1364, 1370 (9th Cir. 1986); (recognizing that

conduct constituting gross negligence may create a

section 1983 liability).

The allegations of simple negligence upon

which Scott's original complaint was predicated

would be insufficient to state a claim cognizable

under 42 U.S.C. § 1983. The allegations of Scott's

complaint as amended, however, allege that the

defendants acted with gross negligence amounting

to deliberate indifference to the victim's well-

being. Accordingly, the allegations are sufficient

to defeat the defendants' motion for summary

judgment.

III.

Scott seeks relief on behalf of the decedent's

estate, pursuant to 28 U.S.C. § 1983, upon the

ground the conduct of officers Henrich and

Flamand, and the policies and customs of Butte-

App. 7

Silver Bow, violated the rights secured John Scott

by the fourth amendment, as applicable to the

States through the fourteenth amendment, Wolf v.

Colorado, 338 U.S. 25 (1949), and the substantive

due process rights granted by the fourteenth

amendment. The allegations of Scott in that regard

are two-pronged. First, she alleges officers

Henrich and Flamand lacked probable cause

justifying the seizure of John Scott. Secondly, she

asserts the officers utilized excessive force in

effectuating the “seizure” of John Scott. Scott

further alleges that the County by "policy or

custom endorsed unreasonable seizure and the

application of excessive force by [its] law

enforcement officers."

PROBABLE CAUSE

While probable cause is ordinarily a question

for the jury, summary judgment upon the issue is

appropriate if the evidence of record is such that

no reasonable jury could find that the officers

lacked probable cause. McKenzie v. Lamb, 738

F.2d 1005, 1008 (9th Cir. 1984). In determining

whether there exists a genuine issue of materiai

fact which would preclude the entry of summary

judgment pursuant to Fed.R.Civ.P. 56, all facts in

the record and inferences drawn from them must be

viewed in the light most favorable to the non-

moving party. See, Water West, Inc. v. Entek

Corporation, 788 F.2d 627, 628-29 (9th Cir. 1986);

Clipper Exspress v. Rocky Mountain Motor Tariff,

690 F.2d 1240, 1250 (9th Cir. 1982). In accordance

with the prescriptions of Fed.R.Civ.P. 56(c), the

moving party bears the burden of establishing that

there are no genuine issues of material fact which

preclude the entry of summary judgment. See,

Aydin Corporation v. Loral Corporation, 718 F.2d

897 (9th Cir. 1983). However, when a motion for

summary judgment is made and supported by

App. 8

appropriate affidavits, the non-moving party is

required to produce evidence demonstrating the

existence of a genuine issue of material fact. See,

Celotex Corporation v. Catrett, 477 U.S. 217

(1986); Anderson v. Liberty Lobby, Inc., 477

U.S. 242 (1986). Even in the absence of opposing

affidavits, however, summary judgment is

inappropriate where the moving parties’ papers are

insufficient on their face to establish that the

movant is entitled to summary judgment as a matter

of law. See, Hamilton v. Keystone Corporation,

539 F.2d 684, 686 (9th Cir. 1976).

In support of their motion for summary

judgment upon the issue of probable cause, the

defendants rely primarily upon the sworn testimony

of officers Henrich and Flamand, together with the

sworn testimony of one officer Maylevac, who also

responded to the disturbance call preceding the

fatal shooting. Scott has filed no affidavits or

other evidence in opposition to the defendants'

motion for summary judgment upon the issue of

probable cause. Accordingly, the court must

accept the facts stated in the testimony of the

officers as true, and determine whether those facts

are sufficient to warrant the entry of summary

judgment in the officers' favor as a matter of law.

See, White by White v. Pierce County, 797 F.2d

812, 815 (9th Cir. 1986).

While Scott is not precise in the presentation

of her position with respect to the issue of probable

cause, the court perceives her claim to be three-

fold in nature. First, Scott implies that upon

arrival at the scene, the officers lacked probable

cause to believe that an offense had been commit-

ted. Second, Scott implicitly asserts that assuming

the officers had probable cause to believe an

offense had been committed, they nonetheless

lacked probable cause to believe that the person to

Canal

App. 9

be arrested would be found within either the

apartment complex, or the specific apartment where

John Scott had retreated. Thirdly, Scott asserts

that the officers lacked probable cause to

effectuate the "seizure" of John Scott at the precise

time the fatal shooting occurred.

It is obviously quite true that if a law

enforcement officer enters a private premises for

the purpose of making a warrantless arrest, there

must exist probable cause to believe that the

person being sought has committed an offense.

See, Draper v. United States, 358 U.S. 307 (1959).

Likewise, the court recognizes that before entry of

a private premises to arrest is permissible, the

arresting officer must have probable cause to

believe that the person to be arrested is within the

particular premises to be entered. See, Payton v.

New York, 445 U.S. 573 (1980). See also, United

States v. Phillips, 497 F.2d 1131 (9th Cir. 1974).

Such inquiries into the existence of probable

cause, however, are necessitated only if the law

enforcement officers enter a private premises to

effectuate an arrest. See, United States v.

Santana, 427 U.S. 38 (1976).

It is undisputed in the record that the

"seizure" of John Scott occurred when John Scott

opened the door of the apartment in response to

Sergeant Henrich's knock and announcement.

Consequently, the "seizure" of John Scott occurred

in the open doorway of the apartment. In United

States v. Santana, supra, the Supreme Court

upheld the warrantless arrest of defendant who was

standing within the frame of her doorway as the

arresting officers approached, but who then

retreated into the vestibule of her home where the

officers followed and effected the arrest. The

Ninth Circuit Court of Appeals has applied the

holding of Santana to uphold the legality of a

App. 10

warrantless arrest of a defendant as he stood in the

doorway of his home. United States v. Botero, 589

F.2d 430 (9th Cir. 1978), cert. denied, 441 U.S.

944 (1979). The present situation, however,

differs from that presented in Santana and Botero

since the situation is one where the suspect was

"seized" as he stood inside his home and the

officers stood outside with drawn weapons. Under

such circumstances, it is the location of the

arrested person, and not the arresting agents,

that determines whether an arrest occurs within a

home. United States v. Johnson, 626 F.2d 753, 757

(9th Cir. 1980). Consequently, absent probable

cause, the officers were not free to enter the home

of Scott to effectuate the arrest of the believed

perpetrator.

"Probable cause is a fluid concept--turning

on the assessment cf probabilities in particular

factual context--not readily, or even usefully,

reduced to a neat set of legal rules." Illinois v.

Gates, 462 U.S. 213, 232 (1983), reh. denied, 463

U.S. 1237. Probable cause is determined by

applying a "totality of the circumstances" analysis,

Id. at 238, and requires a "probability or sub-

stantial chance of criminal activity." Id. at 243

n.13; see also, Merriman v. Walton, 856 F.2d 1333

(9th Cir. 1988). The probable cause test is an

objective one which requires the existence of facts

which would warrant a belief by "a prudent man,"

Henry v. United States, 361 U.S. 98, 102 (1959),

"a man of reasonable caution," Draper v. United

States, 355 U.S. 307, 313 (1959), or "a reasonably

discreet and prudent man." Dumbra v. United

States, 268 U.S. 435, 441 (1925). Based upon the

uncontroverted facts of record, the court is

compelled to conclude that officers Henrich and

Flamand did, in fact, have probable cause to

believe that an offense had been committed in the

App. 11

area of the Scott apartment, and that the perpetra-

tor of that offense was, at the pertinent time,

located within the apartment occupied by John

Scott.

The situation presented to officers Henrich

and Flamand is similar to that which the Supreme

Court commented upon in Warden v. Hayden, 387

U.S. 294 (1967):

The police were informed that an

armed robbery had taken place, and

that the suspect had entered [a

certain house] less than five minutes

before they reached it. They acted

reasonably when they ent2red_ the

house and began to search for a man of

the description they had been given

and for weapons which he had used in

the robbery or might use against

them. The Fourth Amendment does

not require police officers to delay in

the course of an investigation if to do

so would gravely endanger their lives

or the lives of others. Speed here was

essential, and only a thorough search

of the house for person and weapons

could have insured that [the

perpetrator] was the only man present

and that the police had control of all

weapons which could be used against

them or to effect an escape.

387 U.S. at 298-299.

Based upon the information conveyed to

officers Henrich and Flamand, a reasonable man

would have engaged in the course of action taken

by those officers. The officers had reasonable

cause to believe there existed a present danger

which warranted an immediate intrusion into the

apartment occupied by John Scott. The test

App. 12

employed is one of objective reasonableness under

the circumstances as they existed at the time the

challenged conduct occurred, measured by the

information possessed by the officers at that time.

Information gained after the fact cannot be relied

upon in analyzing the propriety of the officers'

conduct. See, Sherrod v. Berry, 856 F.2d 802,

804-805 (7th Cir. 1988).

Consequently, we come to the issue of

whether officers Henrich and Flamand possessed

sufficient probable cause to effectuate a seizure of

John Scott at the precise time the fatal shooting oc-

curred. "Probable cause exists where the facts

and circumstances within the officers' knowledge

and of which they had reasonable trustworthy

information are sufficient in themselves to warrant

a man of reasonable caution in the belief that an

offense has been or is being committed by the

person to be arrested." Dunaway v. New York,

442 U.S. 200, 208 n.9 (1979). Applying the law to

the facts as established in the record, the court is

constrained to conclude officers Henrich and

Flamand had probable cause to believe that John

Scott was the individual whom the officers were

seeking in connection with the reported incident to

which they had responded. The officers' reliance

upon the statements of an average citizen were

reasonable since such statements carry a sufficient

indicia of reliability to warrant the oificers'

reliance upon them to enter the premises of the

designated apartment. See, Chambers v. Moroney,

399 U.S. 42 (1970); United States v. Easter, 552

F.2d 230 (8th Cir. 1977); United States v. Wilson,

479 F.2d 236. This information coupled with

Sergeant Henrich's observation that the individual

who opened the door of the apartment was in the

possession of a firearm would have provided the

officers with sufficient probable cause to effectuate

App. 13

a seizure of that individual. Whether Sergeant

Henrich actually observed a gun, however, is a

point contested by Scott, and which precludes

summary judgment at this juncture.

A) EXCESSIVE FORCE

Apprehension by the use of deadly force is a

seizure subject to the reasonableness requirement

of the fourth amendment. Tennessee v. Garner,

471 U.S. 1, 7 (1985). The reasonableness of force

is analyzed in light of such factors as a

requirement for the officer's safety, the motivation

for the arrest and the extent of the injury

inflicted. McKenzie v. Lamb, 738 F.2d 1005, 1011

(9th Cir. 1984). Accordingly, an allegation that

the force utilized in effectuating a personal seizure

was excessive, as measured by the foregoing

factors, states a claim for relief under 42 U.S.C.

1983 predicated upon the fourth amendment. Smith

v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir.

1987). The question of the reasonableness of the

force used in a particular arrest is a question of

fact properly determined by the trier of fact,

unless qualified immunity is at issue, thereby

mandating the trial court to decide the issue on

summary judgment. White by White v. Pierce

County, 797 F.2d 812, 816 (9th Cir. 1986)

(citations omitted).

The issue presented for determination with

regard to Scott's claim of excessive use of force by

the officers is whether the defendant officers have

demonstrated, as a matter of law, that they are

immune from suit. Mitchell v. Forsyth, 472 U.S.

511 (1985). In determining whether the defendants

have sustained their burden under Fed.R.Civ.P.

56, the record must be viewed in the light most

favorable to the non-moving party. Kraus v.

County of Pierce, 793 F.2d 1105, 1110 (9th Cir.

1986); Water West, Inc. v. Entek Corporation, 788

App. 14

F.2d 627, 628-29 (9th Cir. 1986).

Officers Henrich and Flamand submit there

exists no genuine issue of material fact precluding

summary judgment in their favor with respect to

their claim of qualified immunity. In support of

their motion, the officers rely upon the sworn

testimony they gave at the Coroner's inquest into

the death of John Scott, impressing upon the court

that it remains uncontroverted that they resorted

to the use of deadly force in response to John Scott

pointing a shotgun at them. Consequently, the

officers submit their use of deadly force was

constitutionally permissible under the circum-

stances.

In Harlow _v. Fitzgerald, 457 U.S. 800

(1982), the Supreme Court held that public officials

"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." 457 U.S. at

818. "Whether an official may prevail in his

qualified immunity defense depends upon the

‘objective reasonableness of [his] conduct as

measured by reference to clearly established law.'

No other 'circumstances' are relevant to the issue

of qualified immunity." Davis v. Scherer, 468 U.S.

183, 191 (1984) (citations omitted). Accordingly,

the issue to be addressed in resolving the defen-

dants' claim of qualified immunity in the case at bar

is whether a reasonable police officer could have

believed, in light of clearly established law, that

the use of deadly force was lawful under the

circumstances. See, Anderson v. Creighton,

U.S. ___, slip op. pp.3-6 (June 25, 1987);

Mitchell v. Forsyth, 472 U.S. 511 (1985).

Analysis must begin with a review of the

state of the law at the time of the shooting at issue.

In Tennessee v. Garner, 471 U.S. 1 (1985), the

App. 15

Court, in addressing the constitutionality of a

fleeing felon statute, which authorized the use of

deadly force to prevent the escape of all felony

suspects, stated:

Where the officer has probable cause

to believe that the suspect poses a

threat of serious physical harm, either

to the officer or to others, it is not

constitutionally unreasonable to

prevent escape by using deadly force.

Thus, if the suspect threatens the

officer with a weapon or there is

probable cause to believe that he has

committed a crime involving’ the

infliction or threatened infliction of

serious physical harm, deadly force

may be used if necessary to prevent

escape, and if, where feasible, some

warning has been given.

471 U.S. at 11-12. Because a claim of qualified

immunity must be assessed in light of clearly

established law at the time of the incident in

question, it is necessary to determine exactly when

any change in law which affects the validity of the

claim occurred. See, Procunier v. Navarette, 434

U.S. 555 (1978). In that regard, the court

recognizes that the March 27, 1985, ruling in

Garner post-dated the incident at issue in the case

at bar. However, it is undisputed that Garner did

not alter the state of the law with respect to the use

of deadly force in self-defense or to prevent se-

rious physical harm to another.’

*The court notes that at the time of the fatal

shooting of John Scott, Montana statutory law

provided at Mont.Code Ann. § 45-3-102 (1984):

App. 16

Likewise, there exists no dispute in the case

at bar that at the time of the fatal shooting of John

Scott, it was clearly established in the law that the

use of excessive force by police officers in an

arrest violates the arrestee's fourth amendment

right to be free from an unreasonable seizure and

substantive due process of law. *

Scott asserts two arguments in opposition to

the officers' motion for summary judgment upon the

basis of qualified immunity. First, Scott contends

qualified immunity is unavailable to the officers

because the law at the time of the shooting clearly

established the fourth amendment's proscription

against the use of excessive force to effectuate an

arrest, and the fourteenth amendment's grant of

A person is justified in the use of force

or threat to use force against another

when and to the extent that he

reasonably believes that such conduct

is necessary to defend himself or

another against such other's imminent

use of unlawful force. However, he is

justified in the use of force likely to

cause death or serious bodily harm

only if he reasonably believes that

such force is necessary to prevent

imminent death or serious bodily harm

to himself or another or to prevent the

commission of a forcible felony.

“Egregious government conduct in the form of

excessive and brutal use of physical force

constitutes a violation of substantive due process

of law as guaranteed by the fourteenth amendment.

See, Smith v. City of Fontana, 818 F.2d at 1417;

Rutherford v. City of Berkley, 780 F.2d 1444, 1447

(9th Cir. 1986).

App. 17

substantive due process right to be free from

egregious government conduct. Second, Scott

contends that even if the officers are entitled to

rely upon the defense or qualified immunity, there

exist genuine issues of material fact precluding the

entry of summary judgment. Scott's argument is

predicated upon her conclusion that the presence

of established law regarding broad constitutional

rights, by itself, precludes an official from

claiming qualified immunity. The rationale

expressed by the Supreme Court in Anderson v.

Creighton, supra, however, establishes. that

Scott's view is erroneous. This precise conclusion

has recently been emphasized by the court of

appeals for this circuit in Thorsted v. Kelly, No.

87-6297 (9th Cir. Oct. 3, 1988).

The court in Thorsted rejected a claimant's

argument that the defense of qualified immunity is

unavailable when the right which is alleged to have

been violated is clearly established in the law.

Id., slip op. p.12409. The court in Thorsted

reiterated the following conclusion reached by

Justice Scalia in Anderson v. Creighton, supra,

Slip op. p. 5:

It simply does not follow immediately

from the conclusion that it was firmly

established that warrantless searches

not supported by probable cause and

exigent circumstances’ violate’ the

fourth amendment then Anderson's

search was objectively legally un-

reasonable. We have recognized that

it is inevitable that law enforcement

officials will in some cases reasonably

but mistakenly conclude that probable

cause is present, and we have

indicated that in such cases those offi-

cials--like other officials who act in

App. 18

ways they reasonably believe to be

lawful--should not be held personally

liable. The same is true of their

conclusion regarding exigent

circumstances.

The court in Thorsted correctly understood

Anderson to warrant an expanded inquiry into the

objective legal reasonableness of a government

official's conduct thereby entitling an official to

claim qualified immunity on the ground that "he

could reasonably have believed his conduct was

lawful in light of the clearly established principles"

at issue. Id. at 12410. In accordance with the

rationale espoused by the Court in Anderson,

officers Henrich and Flamand are clearly entitled to

assert the defense of qualified immunity on the

ground that they could reasonably have believed

their conduct was lawful in light of the clearly

established principles relating to the use of deadly

force to effectuate an arrest.

Officers Henrich and Flamand seek to

establish their entitlement to qualified immunity by

way of a motion for summary judgment pursuant to

Fed.R.Civ.P. 56. The officers submit there exists

no genuine material issues of fact regarding the

objective reasonableness of their use of deadly

force to effectuate the seizure of John Scott. In

response to the officers' motion, Scott submits that

there exist factual issues regarding: (1) whether

the officers knew or should have known that their

actions were violative of constitutional rights, and

(2) whether the officers' actions were objectively

reasonable. With respect to the former contention,

it is well established that the subjective element of

the good faith immunity doctrine has _ been

eliminated. See, Harlow v. Fitzgerald; see also,

Bilbrey v. Brown, 738 F.2d 1462, 1465, n.5 (9th

App. 19

Cir. 1984). With respect to the latter contention,

the court is cognizant of the fact that the question

of whether a reasonable officer placed in a

particular set of circumstances could reasonably

believe that his conduct was legal is a fact-specific

one. See, Thorsted v. Kelly, supra, slip. op. at

12413.

Officers Henrich and Flamand have

supported their motion by admissible evidence,

i.e., sworn. statements made by competent

witnesses on personal knowledge, which, standing

alone, would entitle them to judgment as a matter of

law. In accordance with Fed.R.Civ.P. 56(e), it is

incumbent upon Scott to rebut the officers' showing

with evidence which would preclude a directed

verdict for the officers. See, See v. Durang, 711

F.2d 141 (9th Cir. 1983); Jason v. Fonda, 698 F.2d

966 (9th Cir. 1982). Scott has the burden to come

forward with specific facts showing that there is a

genuine issue for trial. Fed.R.Civ.P. 56(e). See,

Anderson v. Liberty Lobby, Inc., 477 U.S. 242.

Review of the papers submitted by Scott in

opposition to the officers' motion reveals that Scott

relies primarily upon an attack to the credibility of

the moving parties' sworn statements. However,

opposition raising merely a credibility issue is

insufficient to preclude summary judgment. See,

National Union Fire Insurance Company _v.

Argonaut Insurance Company, 701 F.2d 95 (9th

Cir. 1983); Matter of Citizens Loan and Savings

Company, 621 F.2d 911, 913 (8th Cir. 1980).

Additionally, Scott suggests the existence of two

facts which, in her opinion, preclude the entry of

summary judgment: (1) subsequent testing of the

gun purportedly held by John Scott at the time of

the shooting failed to reveal the weapon bore traces

of Scott's fingerprints and (2) John Scott was shot

in the back. Scott implicitly suggests these facts

App. 20

support the inference that the officers' sworn

statements are not credible thereby creating a

genuine issue of material fact to be resolved by the

jury. With respect to the latter fact, Scott ignores

the expert testimony presented at the Coroner's

inquest held in connection with the death of John

Scott and offered by officers Henrich and Flamand

in support of their motion for summary judgment.

The testimony of two expert witnesses, i.e., a

pathologist and forensic scientist, who testified at

the Coroner's inquest indicate that at the time of

the shooting John Scott was facing, or standing

somewhere between sideways and ten degrees

forward, to the shotgun fired by Officer Flamand.

With respect to the lack of discernible fingerprints

upon the weapon purportedly held by John Scott,

Scott offers no additional evidence which

establishes a reasonable basis for drawing an

inference adverse to the evidence presented by

officers Henrich and Flamand.

Based upon the circumstances surrounding

the transaction in which this litigation has its

genesis, it appears to the court that expert

testimony would be essential to rebut the evidence

presented by officers Henrich and Flamand in

support of their motion for summary judgment.

Scott has not offered the affidavits of any experts

in opposition to the movant's evidence. In the

°The court notes that where the affidavits of

experts are offered in opposition to a motion for

summary judgment, such affidavits may be

sufficient to defeat the motion where they put

forward facts for a reasonable basis for drawing

adverse inferences from the movant's evidence.

See, National Union Fire Insurance Company v.

Argonaut Insurance Company, 701 F.2d 95, 97 (9th

Cir. 1983); Bieghler v. Kleppe, 633 F.2d 531, 533-

App. 21

opinion of the court, such expert testimony would

be necessary for the trier or fact to legitimately

draw the inference that a reasonable officer placed

in the position of Henrich and Flamand would not

have experienced such apprehension as to warrant

the use of the deadly force to which officers

Henrich and Flamand resorted. See, Neely v. St.

Paul Fire and Marine Insurance Company, 584 F.2d

341, 345 (9th Cir. 1978). The court's conclusion in

this regard is based upon recognition of the fact

there is no indication in the record any other

eyewitnesses to the incident exist, who could

provide evidence probative of the circumstances

surrounding the shooting.

Mindful that care must be taken to insure the

opponent or a motion for summary judgment

adequate opportunity to conduct the discovery

necessary to garner facts essential to rebut the

movant's evidence, the court deems it advisable to

continue the motion for summary judgment sub

judice, as it pertains to officers Henrich and

Flamand, to allow Scott to pursue discovery in an

effort to obtain evidence sufficient to rebut the

movants' evidence of record. See, Fed.R.Civ.P.

56(f); First National Bank v. Cities Service, 391

U.S. 253, 294-98 (1968). Such discovery, howev-

er, shall be limited to that discovery which bears

upon the factual issue of whether the conduct of

John Scott, at the time of the shooting, placed offi-

cers Henrich and Flamand in apprehension of their

own safety. °

34 (9th Cir. 1980).

°The court is compelled to note that while

discovery in this matter is presently stayed,

review of the record reveals that Scott had in

App. 22

LIABILITY OF COUNTY

Scott also contends the County should be

held liable independent of the individual officer

defendants because the officers, in effectuating

the seizure of John Scott, acted pursuant to the

policies, practices and procedures of the County.

The County submits, however, Scott has failed to

establish the existence of a genuine issue of

material fact regarding the adequacy of the Coun-

ty's hiring and training procedures sufficient to

defeat a motion for summary judgment. More

importantly, the County asserts that because it

remains uncontroverted in the record that officers

Henrich and Flamand acted properly = and

reasonably under the circumstances, the claims

advanced by Scott against the County must

necessarily fail.

Local governmental entities may be held

liable for a constitutional violation "when execution

of a government's policy or custom, whether made

by its law makers or by those whose edicts or acts

may fairly be said to represent official policy,

inflicts the injury." Monell v. New York City

Department of Social Services, 436 U.S. 658, 694

(1978). Consequently, in order to hold a local

governmental entity liable for an unconstitutional

excess of ten months from the date this action was

instituted, to conduct discovery necessary to rebut

the sworn testimony presented at the Coroner's

inquest, and upon which officers Henrich and

Flamand rely. Nonetheless, the court finds it

appropriate to provide Scott the additional

opportunity to conduct discovery necessary to

address the specific issue upon which the motion

for summary judgment with respect to the claims of

excessive force turns and lack of probable cause

turns.

App. 23

act committed by an employee, a claimant must first

establish the existence of a municipal policy, and

second, that the policy caused the constitutional

violation of which the claimant complains. 436 U.S.

at 692. The local governmental entity cannot be

subjected to vicarious liability under section 1983

for an unconstitutional act committed by an em-

ployee. 436 U.S. at 691. Rather, the gov-

ernmental entity may be held liable only when "the

action that is alleged to be unconstitutional

implements or executes a_ policy’ statement,

ordinance, regulation, or decision officially

adopted and promulgated by that body's officers."

436 U.S. at 690. "It is when execution of a

government's policy or custom, whether by its

lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts

the injury that the government as an entity is

responsible under section 1983." 436 U.S. at 694.

Recognizing that execution of the "policy"

challenged in Monell would necessarily violate the

constitutional rights of the affected individual, the

Court expressly disclaimed any intent to "address

. . What the full contours of municipal liability

may be." 436 U.S. at 694-95. The Court did

recognize, however, that the municipal policy must

be the "moving force" of the constitutional

violation. 436 U.S. at 694-95. The "moving force"

requirement is satisfied where a governmental

entity's deliberate policy or act directly violates a

person's constitutional rights. See, Owen v. City

of Independence, 445 U.S. 622 (1980); City of

Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981). At the same time, the Court, cognizant of

maintaining the distinction between direct and

vicarious liability under section 1983, has

studiously cautioned that in those situations where

the "policy" at issue is not itself unconstitutional

App. 24

and therefore, execution of the policy does not

compel a constitutional violation, careful analysis is

required to determine the requisite causal

connection between the policy and the constitution-

al deprivation. See, Oklahoma City v. Tuttle, 471

U.S. 808, 824-825 (1985); City of Springfield,

Massachusetts v. Kibbe, U.S. _,, slip op.

p.8 (1987) (O'Connor, J., dissenting).

In the years since Monell was decided, the

Court, in attempting to delineate the precise

contours of municipal liability under section 1983,

has considered several cases presenting the issue

of whether an isolated act by a government official

or employee represented official policy sufficient to

impose liability upon the governmental entity under

section 1983. The Court's decisions have resulted

in the establishment of a continuum within which

the municipal policy alleged in a particular case

must be placed, with the ultimate determination to

be made being whether a jury reasonably could

conclude that the governmental entity's conduct

was the moving force in bringing about the alleged

constitutional violation. See, Springfield _v.

Kibbe, supra, slip-op. at pp.8-9; St. Louis v.

Praprotnik, U.S. ,» Slip op. at pp.9-10

(1988). This precise point is echoed in the

statement offered by Justice O'Connor in

Praprotnik:

We have assumed than an

unconstitutional government policy

could be inferred from a_ single

decision taken by the highest officials

responsible for setting policy in that

area of the government's business.

(citations omitted) At the other end of

the spectrum we have held that an

unjustified shooting by a police officer

cannot, without more, be thought to

App. 25

result from official policy. (citations

omitted )

City of St. Louis v. Praprotnik, supra, slip op.

p.10.

In the case at bar, municipai liability is

urged upon the basis the County was grossly

negligent in the hiring and training of its law

enforcement officers. The Supreme Court has not,

to this point in time, recognized that a policy which

itself is not unconstitutional can ever meet the

"policy" requirement of Monell. See, Oklahoma

City v. Tuttle, 471 U.S. at 824, n.7. Nor, has the

Supreme Court yet resolved the standard of proof

required for claims based on a city's failure to act

or inadequate acts as "policy" within the meaning of

Monell. Id.; see also, City of Springfield,

Massachusetts v. Kibbe, supra, slip op. at p.10.

The court of appeals for this circuit, however, has

recognized that a policy of "inadequate training"

constitutes an actionable policy or custom within

the meaning of Monell. See, Bergquist v. County

of Cochise, 806 F.2d 1364, 1369. The court in

Bergquist further held that a policy of "gross

negligence" in training or supervision gives rise to

municipal liability under section 1983. 806 F.2d at

1370.

’Other lower federal courts have characterized

the requisite degree of fault essential to impose

municipal liability under section 1983 for a deficient

training policy as "deliberate indifference", see,

e.g., Fiacco v. City of Rensselaer, 783 F.2d 319,

326 (2nd Cir. 1986), gross negligence amounting to

"conscious indifference", see, e.g., Languirand v.

Hayden, 717 F.2d 220, 227 (5th Cir. 1983), cert.

denied, 467 U.S. 1215 (1983), or gross negligence

"amounting to deliberate indifference", see,

App. 26

The County does not, in essence, quarrel

with the general proposition advanced by Scott to

the effect, that if the conduct of officers Henrich

and Flamand was sufficiently unreasonable to

violate constitutional standards, liability may be

visited upon the County under section 1983 if an

"affirmative link" existed between the alleged

deprivation of John Scott's constitutional rights

and the County's purported "policy" of grossly

inadequate hiring and training of its law enforce-

ment officers. See, Oklahoma City v. Tuttle, 471

U.S. at 824-825, n.8; Rizzo v. Goode, 423 U.S.

362, 370-71 (1976). Rather, the County submits

Scott has failed to present sufficient evidence to

rebut the County's showing that its policies of

hiring and training are both adequate, and in

conformance with the law of the State of Montana.

In addition, the County submits that because the

conduct of officers Henrich and Flamand was

entirely reasonable under the circumstances, and

therefore did not cause a constitutional deprivation

of John Scott's rights, it necessarily follows, as a

matter of law, that the County cannot be held liable

to Scott as its liability was dependent upon the

unreasonableness of the officers' actions.

Whether a local governmental entity has a

"policy" of inadequate hiring and training presents

a question of fact, as does the related question

whether that "policy" is the moving force behind a

constitutional violation. Both issues may be

Voutour v. Vitale, 761 F.2d 812, 820 (1985), or

gross negligence which insures "that police

misconduct is almost inevitable", see, Hayes v.

Jefferson County, 668 F.2d 869, 874 (6th Cir.

1982), cert. denied, 459 U.S. 833 (1982). See

also, Patzner v. Berquet, 779 F.2d 1363 (8th Cir.

1985).

App. 27

susceptible to disposition via summary judgment, if

a claimant is unable to meet his burden under

Fed.R.Civ.P. 56 of rebutting a showing by the

local governmental entity that the challenged hiring

and training procedures are adequate to warrant

the entry of judgment in that entity's favor. The

court recognizes, however, that in the present

case Scott may not have been afforded sufficient

time to conduct that discovery necessary to rebut

the County's position. At the same time, the court

finds it prudent to require Scott to establish the

existence of a genuine issue of material fact

regarding the reasonableness of the actions taken

by officers Henrich and Flamand prior to allowing

Scott to engage in extensive discovery regarding

the adequacy of the County's hiring and training

procedures. Consistent with the court's prior

determination that the burden presently rests upon

Scott to establish the existence of a genuine issue

of material fact regarding the reasonableness of the

actions taken by officers Henrich and Flamand in

effectuating the seizure of John Scott, the court

deems it advisable to stay discovery with respect to

the issue of the Cuunty's liability under section

1983 until such time as the court resolves the

motion for summary judgment of officers Henrich

and Flamand.

Therefore, for the reasons set forth herein,

IT IS HEREBY ORDERED that the de-

fendants' motions for summary judgment shall be

taken under advisement for a period of sixty (60)

days. The plaintiff may engage in further

discovery during the sixty-day period, with

discovery limited to elucidating evidence bearing

upon the issue of the reasonableness of the

defendant officers' conduct as delineated herein.

App. 28

DATED this 17th day of November, 1988.

/s/ Paul G. Hatfield

PAUL G. HATFIELD

UNITED STATES DISTRICT JUDGE