# Opposition Brief — West ex rel. Norris v. Waymire

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 932

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1271%3A2. Public record. Not legal advice.