Opposition Brief — West ex rel. Norris v. Waymire

2 Supreme Court, U.S.

No. 97100318 FILED

SEP 19 1997

In The

Supreme Court of the nites bites —

October Term, 1996

MARY AMANDA WEST, A Minor Child, by and

through her Parent and Next Friend, Rita Norris,

Petitioner,

v.

JAMES BRADLEY WAYMIRE, individually and in his

capacity as an officer of the Frankton Police

Department, the CITY OF FRANKTON, and the

FRANKTON POLICE DEPARTMENT,

Respondents.

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit.

RESPONDENTS' CITY OF FRANKTON, AND THE

FRANKTON POLICE DEPARTMENT BRIEF IN

OPPOSITION

Phillip A. Renz/#5960-02

Robert T. Keen, Jr./#5475-02

Diana C. Bauer/#11906-64

Counsel of Record

MILLER CARSON

BOXBERGER & MURPHY LLP

1400 One Summit Square

Fort Wayne, IN 46802

Telephone: (219) 423-9411

Attorneys for Respondents, the

City of Frankton and the

Frankton Police Department

APPELLATE SERVICE: CURRY & TAYLOR (202) 393-4141

i.

QUESTIONS PRESENTED FOR REVIEW

Respondents, the City of Frankton and the Frankton

Police Department (collectively referred to as "the Town"),

disagree with the statement of the questions presented for

review in Mary Amanda West's ("West") Petition for Certiorari.

Instead, the questions presented for review are these:

l. Whether municipal liability may be imposed

against the Town under 42 U.S.C. §1983 for the sexual

molestation of a minor by one of its police officers, where the

Town had no knowledge of any prior acts of sexual misconduct

other than passing inappropriate remarks made to an adult.

2. Whether the Town may be held liable under

§1983 for allegedly failing to train and supervise James Brad

Waymire (“Brad Waymire”) where the Town lacked any

knowledge of a pattern of constitutional violations or prior

knowledge of a widespread practice of sexual molestation of

minors by its officers.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........................-. i

vy) F%i fo. | en ii

TABLE OF AUTHORITIES .......................-.. iii

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

The Petition Misrepresents The Underlying Facts .. 1

REASONS FOR DENYING THE PETITION FOR

CEE | ons cn cbbsensuce sa aienneebanneeda meds 6

No Compelling Reason Exists To Review This

CRDD oi.scnccnsscccnndocnenushenusen eee 6

The Seventh Circuit Correctly Applied The Well

Settled Governing Standards For Municipal

BE oci. sacs -cacesubnccendabnsecwasseeneacneel 7

SED ince sivcnsunsdineccesassdensenmiaa area 16

CERTIFICATE OF SERVICE ...................... 17

iii

TABLE OF AUTHORITIES

Page

Cases

Board of Commissioners v. Brown, __

5 te) passim

City of Canton v. Harris, 489 U.S. 378

SESS EE Ee passim

Monell _v. New York City Dept. of

Social Services, 436 U.S. 658 (1978) ................... 5

Oklahoma City v. Tuttle, 471 U.S. 808

I EN Tae os cuca ecu tcvedessecaceccccecs 7

Pembaur v. Cincinnati, 475 U.S. 469

ce cv asacneveccse cs 7

St. Louis v. Praprotnik, 485 U.S. 112

eg cn cvecevesceccs 7

West_by and Through Norris _v.

Waymire, 114 F.3d 646, 647 (7th Cir.

DAR USES eT ahe ibs) pn Ok ]

Rules and Regulations

Rule 10 of the Rules of the Supreme

EIST EIR IE SEINE SROs ch a a a 6

STATEMENT OF THE CASE

The Town also disagrees with the statement of the case

submitted by West for several reasons. First, West fails to

advise this Court that she continues to pursue various negligence

theories of liability against the Town in an Indiana state court.

Under normal circumstances, reference to this omission from the

statement of facts might appear petty. However, in light of

West’s repeated assertions in her Petition that the Seventh

Circuit's decision leaves her with a wrong without a remedy, it

is important for the Court to realize that West is not without

remedy. Lost in West’s righteous indignation is the fact that she

is not without a remedy. As the Seventh Circuit correctly

observed, West’s federal Complaint contains supplemental state

law claims and “West has since refiled it in an Indiana state

court.” West by and Through Norris v. Waymire, 114 F.3d 646,

647 (7th Cir. 1997).

The Petition Misrepresents The Underlying Facts

In an effort to persuade this Court to grant certiorari,

West grossly misrepresents and distorts the underlying facts.

West would have this Court believe that sexual misconduct by

police officers was rampant in Frankton. A reading of West’s

Petition leaves the reader with the impression that the Frankton

Town Board had long-standing knowledge about Brad

Waymire’s alleged sexual misconduct yet sat on its hands and

took no action to remedy the situation, with the inaction

culminating in Brad Waymire's sexual molestation of West. This

is simply not true.

West asserts in her Petition that “the material facts are

accurately recited in the Seventh Circuit’s opinion.” (Petition

for Certiorari at p. 4). However, the purported facts as set forth

in West’s Petition do not accurately reflect the facts as found by

the Seventh Circuit Court of Appeals. The following

illustrations are the most glaring of West’s misrepresentation of

the underlying facts.

West places undue emphasis upon two incidents

involving Leslie Huffman, a woman who later married the

Town’s other full-time police officer, David Wayne Huffman.

The undisputed testimony is that neither Chief Pulley nor any

member of the Town Board had any knowledge about these

incidents until after West’s allegations about Brad Waymire

surfaced. As the Seventh Circuit accurately commented,

“[t]here is no direct evidence that either incident involving Mrs.

Huffman was known to Chief Pulley or the Town’s Board of

Supervisors.” 114 F.3d at 648. Thus, West cannot rely upon

either of the Huffman incidents as placing the Town on notice

that Brad Waymire engaged in sexual misconduct during the

course and scope of his employment. These incidents did not

come to light until Ernie Crowder’s investigation in September,

1993, after West’s allegations surfaced.

West also misrepresents certain comments made by Brad

Waymire during the March 17, 1993 Executive Session of the

Town Board. During that meeting, Brad Waymire made a

comment about rumors that he was “messing around with 13

year old girls.” Throughout her Petition, West relies on Brad

Waymire’s statement as evidence that the Town had actual

notice of his sexual misconduct. In fact, West goes so far as to

suggest that the rumors about Brad Waymire “messing around

with 13 year old girls” was the reason for the executive meeting

of the Town Board on March 17, 1993. This is untrue and

grossly distorts the true facts.

Sometime after Chief Pulley and the Town Board

President, Myron Waymire, interviewed Burger, Chief Pulley

informed Brad Waymire that there were rumors about him

involving Burger. Chief Pulley also informed Brad Waymire

that, as Frankton was a small town, he should probably inform

his wife about the rumors concerning Burger.

On March 15, 1993, Brad Waymire sent a memorandum

to the Town Board requesting a special hearing, in executive

session, concerning the allegations that were being made against

him. The memorandum reads as follows:

According to the grievance procedure outlined

in the Employee Manual I am requesting a

hearing before an executive session of the

Board. I would appreciate this meeting as soon

as possible. Certain allegations have been made

against me and I feel time is very important. My

standing in the community, privately as well as

professionally, as well as my family’s reputation

are at stake. I think you will agree that in a

small community such as ours bad news spreads

quickly. I also feel that if this matter is not

quickly resolved my employment with the Town

of Frankton and future employment anywhere

else will be adversely affected.

During the early stages of the Executive Session

meeting, Brad Waymire alluded to the remarks he previously

made about Burger’s 13 year old daughter:

I admitted to flirting with her, but the fact is I

never flirted with her anymore than what she

flirted with me. She, I believe, told you that she

shocked — (unintelligible). The fact is, I asked

her if I ever said anything against her, and she

said, “No.” I did tell her that her daughter was

very pretty (unintelligible) 13 years old. Now

her daughter dates an 18 year old boy, so I

assume she doesn’t mind anything about

(unintelligible) statutory rape. She certainly

(unintelligible) that. I never made any

suggestion about her or her daughter, I never

touched her, I never pursued her — and she was

divorced for a time — I never pursued her, I

didn’t bother her, I didn’t send her at any time

other (unintelligible).

While West would like to attribute Brad Waymire’s

comment about “messing around with 13 year old girls” as the

sole reason for convening the executive meeting, this is simply

not true. Also, Brad Waymire’s comment was certainly not an

admission on his part that he was engaging in sexual

relationships with West, or any other 13 year old girls. Rather,

as the Seventh Circuit correctly observed, Brad Waymire’s

comment about “messing around with 13 year old girls” was

apparently a reference to his prior remarks about Burger’s 13

year old daughter looking good in a pair of jeans. 114 F.3d at

648.

West also refers to an incident where Brad Waymire

purportedly exposed himself to one of Burger’s co-workers as

further evidence of actual knowledge of sexual misconduct.

However, West conveniently neglects to inform the Court that

the Town Board had no knowledge about that incident. As the

Seventh Circuit correctly observed:

The record contains evidence of other sexual

misconduct by Waymire, including exposing

himself to a co-worker of Burgers, although

there is no evidence that the police chief or the

T B knew her

miscon from th ks ab

B : is con

Wi Waymire’

n i involv fi ne

knows, minors. 114 F.3d at 649. (Emphasis

added).

Despite West’s blatant distortion of the underlying

record, the fact remains that the only incident of which the

Town Board had actual knowledge is the incident in which Brad

Waymire made inappropriate comments to Burger. There is no

evidence that the Town Board had notice of prior acts of sexual

molestation of minors by either Brad Waymire or any other

members of the Frankton Police Department. Similarly, there is

no evidence that the Town Board knew that Brad Waymire was

molesting West. 114 F.3d at 652. In addition, it is undisputed

that the only incident of which the Town Board had actual

knowledge, the Burger incident, involved only an allegation of

inappropriate comments; not an allegation of sexual molestation.

This Court should not be taken in by West’s unbridled

attempt to change the factual landscape of this case. The issue

presented by West’s Petition is whether a municipality may be

held liable under §1983 where the uncontroverted evidence is

that the Town Board had knowledge only of Brad Waymire’s

inappropriate comments to Burger. As the Seventh Circuit

correctly observed, Brad Waymire’s comments to Burger are

“not the equivalent of a threat to commit criminal acts upon that

or any other 13 year old.” 114 F.3d at 652. Under the stringent

standards for municipal liability articulated by this Court in

Monell v. New York City Dept. of Social Services, 436 U.S.

658 (1978), City of Canton v. Harris, 489 U.S. 378 (1989) and

Board of Commissioners v. Brown, __ U.S. __, 117 S.Ct.

1382 (1997), the Seventh Circuit correctly held that the Town

could not be held liable under §1983. None of the arguments

advanced in West’s Petition present a valid reason to disturb the

Seventh Circuit’s opinion.

REASONS FOR DENYING THE PETITION FOR

CERTIORARI

No Compelling Reason Exists To Review Thi e

Rule 10 of the Rules of the Supreme Court cautions that

“frjeview on a writ of certiorari is not a matter of right, but of

judicial discretion.” Moreover, a petition for certiorari may be

granted “only for compelling reasons,” such as the existence of

a conflict among the circuits. Rule 10(a).

The present case is not a case in which this Court should

exercise its discretion. West’s Petition contains no suggestion

as to the existence of confusion or conflict in the lower courts

about the law of municipal liability under §1983 or how that

well-settled law is to be applied. Also, as will be set forth in the

next section, the Seventh Circuit correctly applied the law as

articulated by this Court in Monell, Canton and Brown.

Implicit in West’s Petition is an invitation to carve out

exceptions to Monell and its progeny and impose liability upon

a municipality whenever a wrongdoer, like Brad Waymire, lacks

the financial means to satisfy a monetary judgment. West

obtained a default judgment against Brad Waymire in his

individual capacity and the District Court entered a $600,000.00

judgment against him. Brad Waymire is currently serving an

eight-year prison sentence, having pled guilty to five counts of

child molestation.

West has not been deprived of her federal remedies

under §1983. She has a substantial judgment against Brad

Waymire. That Brad Waymire may be unable to satisfy that

judgment is not a reason to shift the blame for his conduct to the

Town.

The underlying purpose of §1983 is to provide a remedy

for the wrongful conduct of a government official whose

conduct “causes” the deprivation of another individual's

constitutional nghts. Congress did not enact §1983 to provide

a deep pocket for the recovery of monetary damages.

6

Section 1983 is a fault-based statute. Indeed, in Monell,

this Court held that a-municipality may be held liable under

§1983 only where the municipality itself causes the

constitutional violation at issue. 436 U.S. at 694-95. This

conclusion is consistent with the plain language of §1983 which

provides for the imposition of liability only upon one who

“subjects [a person], or causes [that person] to be subjected,” to

a deprivation of federal rights. In Monell, this Court emphasized

that §1983 “cannot be easily read to impose liability vicariously

on governing bodies solely on the basis of the existence of an

employer-employee relationship with a tortfeasor.” Id. at 692.

Consistently, this Court has refused to hold municipalities liable

under a theory of respondeat superior. See ¢.g., Oklahoma City

v. Tuttle, 471 U.S. 808 (1985) (plurality opinion), Pembaur v.

Cincinnati, 475 U.S. 469 (1986); St. Louis v. Praprotnik, 485

U.S. 112 (1988) (plurality opinion).

Moreover, nowhere in her Petition does West offer any

sound public policy reasons for either overruling Monell or

creating some exception to the limited circumstances under

which a municipality may be held liable under §1983. The

possibility that West may not be compensated by the wrongdoer,

Brad Waymire, is not a sufficient reason for this Court to

exercise its judicial discretion.

The Seventh Circuit Correctly Applied The

Well vernin nd For Municipal Liability

West’s entire Petition is founded upon her misguided

belief that the “plainly obvious” standard for municipal liability

discussed by this Court in Brown signals a further restriction

upon the limited circumstances when municipal liability may be

imposed under §1983. West goes so far as to suggest that the

“plainly obvicus” standard effectively overrules and undermines

the standards articulated by this Court in Monell and Canton.

(Petition for Certiorari at pp. ii, 9, 15, 18, 25).

Contrary to West’s argument, Brown is not a departure

from the standards set out in Monell and Canton. Indeed,

Brown simply reinforces the strict standards for municipal

liability previously elucidated by this Court in Monell and

Canton. As Brown does not alter the law of municipal liability

under §1983, the Seventh Circuit correctly applied the settled

law as established by this Court and West’s call for clarification

of this well-settled law should be rejected.

In Monell, supra, this Court held that in certain limited

circumstances, a municipality may be held liable under §1983.

This Court expressly rejected all notions of respondeat superior

or vicarious liability under §1983. Rather, it is only when a

municipal policy or custom causes the alleged constitutional

violation that a municipality may be held liable under §1983. As

this Court stated in Monell, supra:

[T]he language of §1983 read against the

background of the same legislative history,

compels the conclusion that Congress did not

intend municipalities to be held liable unless

action pursuant to an official municipal policy of

some nature caused a constitutional tort. In

particular, we conclude that a municipality

cannot be held liable solely because it employs a

tortfeasor — or, in other words, a municipality

cannot be held liable under §1983 on a

respondeat superior theory.

7 + . a

We conclude, therefore, that a local government

may not be sued under §1983 for an injury

inflicted solely by its employees or agents.

Instead, it is when execution of a government’s

policy or custom, whether made 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 §1983. 436 U.S. at 691-94.

In Canton, this Court clarified the limited circumstances

in which a municipality may be held liable under §1983, in a

failure to train context. This Court imposed a stringent

standard: a municipality may be held liable for the failure to

train, only where the failure to train amounts to a “deliberate” or

“conscious” choice by the municipality. Canton, supra, 489

U.S. at 388-89. This Court observed that the stringent

deliberate indifference standard is “most consistent with [the]

admonition in Monell...that a municipality can be liable under

§1983 only where its policies are the ‘moving force [behind] the

constitutional violation.”” Id. As Justice O’Connor cautioned

in her concurring opinion, liability under §1983 for a local

government’s sins of omission should not be imposed absent

some showing of “a high degree of fault on the part of city

officials.” 489 U.S. at 396.

Under Canton, there are two avenues for asserting a

failure to train claim. One avenue is to show a pattern of

constitutional violations sufficient to place the entity on notice

that its employees’ responses to a regularly occurring situation

are insufficient to protect the constitutional rights of citizens.

Id., 489 U.S. at 397. This avenue is unavailable to West as

there is no evidence of previous similar incidents of sexual

molestation of minors by City police officers.

Second, absent a pattern of constitutional violations,

municipal liability may be imposed under §1983 for failure to

train only where “the need for more or different training is so

obvious, and the inadequacies so likely to result in violations of

constitutional rights, thet the policymakers of the City can

9

reasonably said to have been deliberately indifferent to the

need.” Canton, 489 U.S. at 390. For example, in Canton, this

Court observed that training as to the use of force is an area

where the need for training is so “obvious,” that the failure to

train amounts to deliberate indifference:

For example, City policymakers know to a moral

certainty that their police officers will be

required to arrest fleeing felons. The City has

armed its officers with firearms, in part to allow

them to accomplish this task. Thus, the need to

train officers in the constitutional limitations on

the use of deadly force...can said to be “so

obvious,” that failure to do so could properly be

characterized as “deliberate indifference” to

constitutional rights. 489 U.S. at 390 n.10.

As applied to the present case, the mere possibility that

an officer might possibly molest individuals with whom he might

came into contact is simply not an area where the need for

training is “so obvious” that the failure to train amounts to

deliberate indifference. Even the most highly trained officer

could sexually molest a minor. The fact that officers encounter

. teenage girls in their line of duty does not increase the likelihood

that one of those officers might molest a teenage girl. As no

causal connection exists between any alleged deficiencies in

Brad Waymire’s training and West’s ultimate injury, it would be

inappropriate to impose liability upon the Town for Brad

Waymire’s conduct.

Brown is this Court’s most recent pronouncement

concerning the limited circumstances under which municipal

liability may be imposed under §1983. While West repeatedly

attempts to label Brown as signaling a “shift in Section 1983

jurisprudence,” nothing could be further from the truth. Brown

10

i , OE Oy wm re

simply reinforces the stringent standards previously established

by this Court in both Canton and Monell.

Brown involved a claim of deliberate indifference in the

hiring of a police officer. The evidence revealed that Deputy

Burns had a record of driving infractions and had pled guilty to

various driving-related and other misdemeanors, including

assault and battery, resisting arrest, and public drunkenness.

Sheriff Moore, the Bryan County Sheriff, testified that he failed

to adequately review Deputy Burns’ background prior to hiring

him. Deputy Burns allegedly used excessive force during

Brown's arrest after a high speed pursuit. Brown filed suit

against Sheriff Moore under §1983, asserting that municipal

liability should be imposed based upon Sheriff Moore's failure to

screen Deputy Brown's background prior to hiring him. The

issue presented by Bryan County's Petition for Certiorari was

whether it could be held liable under §1983 for a single hiring

decision. This Court revisited its prior decision in Monell and

Canton and held that "rigorous standards of culpability and

causation must be applied to ensure that the municipality is not

held liable solely for the actions of its employee." 117 S.Ct. at

1382.

Relying upon the Canton, this Court held in Brown that

the failure to scrutinize an individual's background may result in

municipal liability only if the consequences of inadequate

screening are so “plainly obvious” that they would result in a

violation of an individual’s constitutional rights. As the

following passages from Brown demonstrate, the “plainly

obvious” standard is simply a reaffirmation of the stringent

standard articulated in Canton:

As our decision in Canton makes clear,

“deliberate indifference” is a stringent standard

of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of

his action. Unlike the risk from a particular

11

background of the applicant. A lack of scrutiny

may increase the likelihood that an unfit officer

will be hired, and that the unfit officer will, when

placed in a particular position to affect the rights

of citizens, act improperly. But that is only a

nly showing of nsk. The_fack_that

contiationsl_Sieheion After all, a full

screening of an applicant’s background might

reveal no cause for concern at all; if so, a hiring

official who failed to scrutinize the applicant’s

background cannot be said to have consciously

disregarded an obvious risk that the officer

would subsequently inflict a particular

constitutional injury.

We assume that a jury could properly find in this

case that Sheriff Moore’s assessment of Burns’

background was inadequate. Sheriff Moore’s

own testimony indicated that he did not inquire

into the underlying conduct or the disposition of

any of the misdemeanor charges reflected on

Burns’ record before hiring him. But this

showing of an instance of inadequate screening

the plainly obvious consequence of the decision

official’s failure to adequate scrutinize the

indifference.” 117 S.Ct. at 1391-92.

West suggests that certiorari should be granted in this

case because the Seventh Circuit purportedly expressed doubt

as to whether criminal recklessness or civil recklessness satisfies

the deliberate indifference standard. However, the Seventh

Circuit was not confused as to the stringent standards applicable

to this case. The Seventh Circuit merely observed that this

Court’s decision in Brown “suggests that the tort standard of

recklessness is enough...as long as it isn’t allowed to slide into

gross negligence.” 114 F.3d at 651. However, as the Seventh

Circuit quickly observed, the standard for deliberate indifference

remains “conscious disregard of known or obvious dangers.”

Id.

Without question, the deliberate indifference standard is

an elusive standard with which numerous federal courts have

struggled since the pronouncement of that standard in Canton.

The Seventh Circuit’s observations in the present case simply

reflect the elusiveness of the deliberate indifference standard.

However, as the Seventh Circuit observed, under either a

13

criminal recklessness standard or under a civil recklessness

standard, “the defendant must make a deliberate choice; an

inadvertent omission won’t do.” 114 F.3d at 651.

As the Seventh Circuit correctly observed, West loses,

regardless of whether a criminal recklessness standard or a civil

recklessness standard applies to this case, as the evidence fails

to demonstrate an obvious risk that Brad Waymire would molest

her:

But Brown suggests as we have seen that a

deliberate choice to avoid an obvious danger (or

“plainly obvious,” as the Court put it, no doubt

for emphasis, 117 S.Ct. at 1392) is actionable

under [§1983] if the choice results in harm to a

protected interest, even though the defendant

obtusely lacks actual knowledge of the danger.

Granted, there may be less here than meets the

eye. The difference between “plainly obvious”

and an actually known danger — the critical

difference between the criminal and tort

standards of recklessness — may have little

significance in practice, given the difficulty of

peering into minds, especially when the “person”

whose mind would have to be plumbed is an

institution rather than an individual.

The Town of Frankton...did not intend Waymire

to molest Amanda. Nor is there any evidence

that the Town knew Waymire was molesting

Amanda. Or even that it knew there was a

serious risk of this. But all of this is just to say

that there is no proof that the Town was

re aye We

should also consider whether the risk to her was

nevertheless obvious, which would be enough to

cast liability onto the Town under the tort

14

standard of recklessness, which may be the

standard after Brown and Canton.

Slackness, laxness, cronyism, confusion, and

dumbness there were in profusion; what is

lacking is an obvious risk that Waymire was a

child molester. All that was obvious was that he

had commented to Burger about her 13 year old

daughter’s being sexy. Such a comment — in

context a piece of sexual badinage with the

mother — is not the equivalent of a threat to

commit criminal acts upon that or any other 13

year old girl. Men are aware of pubescent girls,

and vulgar men comment on or even to them. If

the vulgar man then has sex with such a girl,

someone who knew of the comment could not

—be thought to have overlooked an obvious

danger to her. The Town’s officials had in fact

no reason to believe that Waymire was molesting

or was going to molest any teenage girl, and so

the Town cannot be held liable under section

1983. 114 F.3d at 651-52 (emphasis added)

(citations omitted).

Finally, West suggests that this Court grant certiorari for

the purpose of applying a reasonable foreseeability test in

determining whether an obvious risk existed that an untrained

and unsupervised Brad Waymire might molest her. West's

reasonable foreseeability suggestion smacks of a negligence

standard, a standard which has been repeatedly rejected by this

Court in discussing municipal liability under §1983. Anything is

foreseeable. Under West’s formulation, if any possibility exists

that an officer might engage in unconstitutional conduct, the

municipality should be held liable under §1983. Without doubt,

this is not the law as articulated by this Court in Monell, Canton,

15

and Brown. Other than to suggest that adoption of this standard

would ensure full compensation of a victim, West articulates no

public policy reasons for such a dramatic change in the law.

Indeed, the new standard proposed by West would impose

§1983 liability against governmental officials without proof of

any actual wrongdoing on their part. Section 1983 was never so

intended.

CONCLUSION

The Seventh Circuit Opinion correctly applied the

controlling precedent of this Court and did not erroneously

decide any new questions of law. Municipal liability under

§1983 should be the exception to the rule; not the rule. To hold

that the sparse evidence presented by West satisfies the stringent

standards articulated in Monell, Canton, and Brown would

signal a return to concepts of respondeat superior under §1983.

There is no reason to disturb the Seventh Circuit’s well-

reasoned opinion and the Petition should be denied.

Respectfully submitted,

MILLER CARSON BOXBERGER &

MURPHY LLP

Phillip A. Renz/#5960-02

Robert T. Keen, Jr./#5475-02

Diana C. Bauer/#1 1906-64

1400 One Summit Square

Fort Wayne, IN 46802

Telephone: (219) 423-9411

Attorneys for Respondents, the City of Frankton

and the Frankton Police Department

16