Opposition Brief — Cyr v. City of Dallas

a Sugreme Gout, US

oct 31 1997

No. 97-572

SK =

In The

Supreme Court of the United States

October Term, 1997

on +

THOMAS CYR and KEVIN CAPPER,

Petitioners,

CITy OF DALLAS, et al.,

Respondents.

a ¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

a €

RESPONDENTS’ BRIEF IN OPPOSITION

——- e

Epwin P. Voss, Jr.

Assistant City Attorney

Counsel of Record

Mark E. GOLDSTUCKER

Assistant City Attorney

City Hall 7BN

1500 Marilla Street

Dallas, Texas 75201

(214) 670-3510

Telecopier No. (214) 670-0622

Attorneys for Respondents

October 31, 1997

COCKLE | AW BRIEF PRINTING CO., (800) 225-6964

“R CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Did the United States Court of Appeals for the

Fifth Circuit apply the correct legal standard in holding

that Petitioners presented no genuine issue of material

fact whether police officers acted in an objectively reason-

able manner in using force during the arrest of Peti-

tioners, and were thus entitled to qualified immunity?

2. Did the United States Court of Appeals for the

Fifth Circuit correctly determine that Petitioners pre-

sented no genuine issue of material fact whether the

individual respondents were entitled to qualified immu-

nity as a matter of law?

3. Did the United States Court of Appeals for the

Fifth Circuit apply the correct legal standard in holding

that Petitioners presented no genuine issue of material

fact whether police officers violated Petitioners’ Fourth

Amendment rights?

4. Did the United States Court of Appeals for the

Fifth Circuit apply the correct legal standard in determin-

ing that Petitioners presented no issue of municipal lia-

bility?

il

TABLE OF CONTENTS

Page

CUTS TROIS PROG oc vekndnesictunacteenestes i

TAREE GP CU aa os 0 oo cd dendewnsaweuueeses ii

FABRE GP ATE oo cc ndu nu cdccscceeuscasee iii

STATERERNT Gl Tie CA ew ons os cisawesncicunnt 1

A. Course of Proceedings and Disposition ........ 1

S. Seabomenk of TG 6<< i505 seacukansee neste 3

ARGUMENTS SUPPORTING DENIAL OF THE

WEES oo onic cn eavee ws us seen oo ee ee 5

I. The Standards for Review Have Not Been Met

eer ee re ere e)

II. Summary Judgment: The Appropriate Legal

Standard Regarding Respondents’ Motion for

Summary Judgment Required Dismissal.... .. 10

Ill. The Force Used Against Petitioners Did Not Rise

to the Level of a Constitutional Violation ...... 12

IV. Individual Respondents Are Shielded From Lia-

bility by the Qualified Immunity Doctrine...... 14

V. Petitioners Were Not Injured as The Result of

an Unlawful Policy, Practice or Custom of the

City of SOS wo 00 0000ckaounssadenseeemens 18

1. The City of Dallas Has No Officially Adopted

Policy Which is Unconstitutional.......... . 18

2. The City of Dallas Has No Persistent,

Widespread Practice of City Officials or

Employees Which Was So Widespread as to

Constitute a Custom That Represented City

a. PEPE T See Te ee 20

et a 6 | Br ee - -

iii

TABLE OF AUTHORITIES

" Page(s)

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) ....14, 15, 16

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...10, 11

Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979)........ 19

Bennett v. City of Slidell, 728 F.2d 762 (5th Cir.

1984), cert. denied, 472 U.S. 1016 (1985)............ 19

Board of the County Commissioners of Bryan County,

Oklahoma v. Brown, 520 U.S. __, 117 S.Ct. __,

oS er ee 18

ee Oy a, UE. POM CEDPED cc ccc cscs cwceseses 6

Brown v. Glossip, 878 F.2d 871 (5th Cir. 1989)........ 15

Celotex Corp. v. Catrett, 477 Stam Sar CROO) i... 11, 12

City of Canton v. Harris, 489 U.S. 378 (1989)......... 19

City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) .... 20

Cooper v. Lane, 969 F.2d 368 (7th Cir. 1992)........... 7

Daniels v. Williams, 474 U.S. 327 (1986).............. 20

Davidson v. Cannon, 474 U.S. 344 (1986) ............. 20

Davis v. Scherer, 468 U.S. 183 (1984)................. 17

Duckett v. City of Cedar Park, 950 F.2d 272 (5th Cir.

EE RS PETC eer eT eRe EET ET ee ee 17

Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993) ....... 7, 8

Eugene v. Alief Independent School Dist., 65 F.3d

ee a os bbe ha bbb exe sac ennseeaehes 16

Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir. 1986) .... 11

iv

TABLE OF AUTHORITIES - Continued

Page(s)

Forrester v. City of San Diego, 25 F.3d 804 (9th Cir.

1994), cert. denied, 513 U.S. __, 115 S.Ct. 1104,

SOE Ge EY CIES ob cc asses Vibes ch etras ees 10

Gassner v. City of Garland, 864 F.2d 394 (5th Cir.

DR 5093495 4b baer he RS a Oa a 17

Graham v. Connor, 490 U.S. 386 (1989)........ 12, 15, 16

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............. 17

Hunter v. Gryant, SG2 U.S. 224: (991)... 2... .c nese 8, 9

Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989)........ 13

Kentucky v. Graham, 473 U.S. 159 (1985) ............. 18

Knight v. Caldwell, 970 F.2d 1430 (5th Cir. 1992),

cert. denied, 507 U.S. __, 113 S.Ct. 198, 122

eG Se rn Pere r er arr 13

Los Angeles v. Heller, 475 U.S. 796 (1986) ............ 21

Malley v. Briggs, 475 U.S. 335 (1986).......... 13, 16, 17

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

CIS WE FOS CAS 4 8 5 on ede en cas bebe dred ee 11

McKinney By McKinney v. DeKalb County, 997 F.2d

ROOD CEU RR ee ka odes 2a ig Fees ia isin 8

Monell v. New York City Department of Social Ser-

micas, SOG Ci. Ge Gree 56 0a ks cas eb cc perwsxsedaes 18

Mouille v. City of Live Oak, 977 F.2d 924 (5th Cir.

ROPER. Soi ncnkba toe babsees Peake Stes men iabennccsen 17

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) .... 19

Pfannsteil v. City of Marion, 918 F.2d 1178 (5th Cir.

BOD oo vac an qeduds $000se+ckusneela eaten once 17

a ees

Vv

TABLE OF AUTHORITIES - Continued

= Page(s)

Quives v. Campbell, 934 F.2d 668 (5th Cir. 1991)...... 18

Samaad v. City of Dallas, 940 F.2d 925 (5th Cir. 1991) .... 17

Siegert v. Gilley, S00 US. 226 (1991) ................. 17

Spann v. Rainey, 987 F.2d 1110 (5th Cir. 1993)......... 8

St. Louis v. Praprotnik, 485 U.S. 112 (1988)........... 19

Topalian v. Ehrman, 954 F.2d 1125, reh’g denied, 961

F.2d 215 (5th Cir.), cert. denied, 506 U.S. 825

GU Sy oh ouia cee bese enss by bub) cabew bias eee aes 11

Trejo v. Perez, 693 F.2d 482 (5th Cir. 1982)........... 17

Walton v. City of Southfield, 995 F.2d 1331 (6th Cir.

ig EERE ERE EC CO TTT ET Ee TT Pe ne 8

Washington v. Armstrong World Industries, Inc., 839

te se. ee | 12

Worsham v. City of Pasadena, 881 F.2d 1336 (5th Cir.

POs cE Rae Nnquhae sid gp ONDA ee eee ee is 19

STATUTES AND RULEs:

ee es We I A oo Rice asc ks waveus 2, 18, 20, 21

Pe eer ne ep rere 14

wee: Ps, SG SB Gis es a Aree ee 14

See ee Re Ae kas a 45 0baaeasee ce uuae teases 14

we FU aE Oe A 6 AS 2A 14

SE WEEE Nacchvae caec)itb00s ada cauenenees 5, 6, 9

PRS Ss 6a his Gb ac da the bk ka eens 10, 11

RESPONDENTS’ BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE UNITED

STATES SUPREME COURT:

Respondents City of Dallas, Dallas Police Depart-

ment, Jackson, Tolliver, Garcia, Parker, Maines and

Kowalski file this Brief in Opposition to this Petition for

Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit (“Response”), asking the Court to

deny the Petition for Writ of Certiorari (“Petition”) to

review the opinion issued April 3, 1997, by the United

States Court of Appeals for the Fifth Circuit. In support

of this request, Respondents respectfully show the Court

as follows:

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition

Petitioners’ statement regarding the course of pro-

ceedings and disposition in the trial court is essentially

correct. For the sake of accuracy and completeness, how-

ever, Respondents provide the following statement of the

course of proceedings in this case.

Petitioners Thomas Cyr and Kevin Capper filed this

action in the 95th Judicial District Court of Dallas,

County, Texas, on February 25, 1994. Respondents were

served with service of process and answered. Petitioners’

Original Petition did not assert any federal causes of

action; however, Petitioners’ First Amended Original

Petition (hereafter “Petitioners’ Amended Petition”), filed

April 7, 1995, asserted, for the first time, a cause of action

under 42 U.S.C. § 1983. Respondents timely removed this

action to the United States District Court for the Northern

District of Texas on April 24, 1995. Petitioners did not

seek remand of this case.

Petitioners alleged violations of the First, Fourth, \

Eighth and Fourteenth Amendments to the United States

Constitution, in addition to state law claims of assault

and battery, intentional infliction of severe emotional dis-

tress, and other violations of the Texas Constitution.

Specifically, Petitioners alleged that excessive force was

used in their arrest on February 27, 1993. Petitioners also

alleged that Interim Dallas Police Chief Robert Jackson,

Deputy Chief Granver Tolliver, Captain Doug Kowalski

and Sergeant Richard Garcia should be liable to them for

breach of a duty to train, control, supervise and ade-

quately dispatch the officers under their command. Cyr

and Capper alleged that Jackson, Tolliver, Kowalski, Gar-

cia, Parker ard Maines were agents of the Dallas Police

Department and the City of Dallas on February 27, 1993,

and as a result of that agency, the Dallas Police Depart-

ment and the City of Dallas should be liable to them.

Petitioners further alleged that Garcia, Parker, Maines

and Kowalski acted outside of their official capacities as

police officers and should be individually liable to them

for their actions.

Respondents asserted qualified immunity against

Petitioners’ state and federal claims, in their answers and

in a motion for summary judgment, and the City also

moved for summary judgment. By Memorandum Opin-

ion and Order, dated July 8, 1996, and entered July 9,

1996, the district court granted Respondents’ motion for

eT

summary judgment in its entirety. Petitioners timely per-

fected an appeal, and the court of appeals affirmed the

district court’s grant of summary judgment.

B. Statement of Facts.

On February 27, 1993, at approximately 7:30 a.m., a

group of abortion protestors entered the North Dallas

Women’s Clinic. Petitioners were among this group.

Shortly thereafter, members of the Dallas Police Depart-

ment’s Tactical Division arrived on the scene under the

supervision of Respondent Garcia. Upon their arrival, the

Tactical Division found protestors in the parking lot,

stairway and hallway leading to the clinic, as well as

within the clinic itself. Many of the clinic patients had

locked themselves in the interior rooms of the clinic in

order to avoid confrontation with the protestors. Garcia

and the clinic director proceeded to move throughout the

clinic to ask the protestors to leave and issued the crimi-

nal trespass warning. At this time, Petitioner Capper was

squatting down at the side of a couch confronting

patients seated nearby regarding their unborn babies.

After hearing the request to leave and the warning, Cap-

per refused to move. Garcia told Respondent Parker and

another officer to arrest Capper. Capper immediately fell

to his stomach and was handcuffed with great difficulty.

Parker then asked Capper to get up and walk. Capper

refused to acknowledge Parker and would not move.

Parker used a pressure point tactic on Capper in an effort

to get Capper to walk out of the clinic under his own

power. This tactic did not work. Parkér, becoming

increasingly concerned for the safety of the patients, Cap-

per, and the other officers, warned Capper that he would

spray him with pepper mace if he did not walk. Capper

remained unresponsive after this warning. Parker then

sprayed Capper with pepper mace. Capper again refused

to move and was finally carried out of the clinic by

Parker and two other officers.

Meanwhile, Petitioner Cyr was also asked to leave

and given a criminal trespass warning by Garcia and the

clinic director as he was crouched on the floor yelling at a

patient through the opening underneath a locked door.

Cyr refused to leave. He remained crouched on the floor

and was arrested and handcuffed with great difficulty by

Respondent Maines and another officer. After handcuff-

ing Cyr, Maines asked Cyr to come to his feet and walk.

Cyr ignored the request and remained limp. Maines then

applied pressure point tactics to Cyr in an effort to get

him to stand up and walk. Cyr remained limp on the

floor. Maines, feeling a sense of urgency to clear the area

in front of the doorway so that medical attention could be

given to the patient locked inside, warned Cyr that he

would use pepper mace on him if he did not get up and

walk. Again, Cyr did not respond and remained on the

floor. Maines then sprayed Cyr with pepper mace. Cyr

still refused to get up and walk. Cyr was then carried out

by Maines and two other officers.

Respondent Jackson (who was Acting Chief of Police)

was not involved in the incident on February 27, 1993. He

did not participate in, nor did he direct the arrests of

Petitioners. Jackson became aware of the incident when it

was reported to him the night of February 27, 1993, or the

next day, February 28, 1993. Additionally, Respondents

Tolliver and Kowalski were not directly involved, nor did

they personally participate in the arrests of Petitioners.

Due to the situation at the clinic, Tolliver and Kowalski

deployed two Tactical Squads; however, they did not

personally order the arrests of Petitioners, nor the accom-

panying use of force to overcome Petitioners’ resistance.

Kowalski became aware of the incident after it was

reported to him by Garcia; Tolliver became aware of the

incident after it was reported to him the night of Febru-

ary 27, 1993, or the next day, February 28, 1993. Peti-

tioners both pleaded guilty to criminal trespass charges

that were brought as a result of this incident.

The above facts are largely undisputed, as found by

the district court and the court of appeals. Petitioners

likewise concede that summary judgment was granted

because the facts were undisputed. Petition for Writ of

Certiorari, p. 15.

ARGUMENTS SUPPORTING DENIAL OF THE WRIT

I. The Standards For Review Have Not Been Met By

Petitioners.

In vague and conclusory fashion, Petitioners assert

that the Court’s discretionary review powers are appro-

priately engaged by the Fifth Circuit’s ruling vis-a-vis

other courts’ decisions, under Supreme Court Rule No.

10.1. Petition for Writ of Certiorari, pp. 3-4. Petitioners’

contentions are without merit, and the Court should deny

discretionary review in this matter.

Supreme Court Rule 10.1 states in relevant part:

Review on writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a

writ of certiorari will be granted only for com-

pelling reasons. The following, although neither

controlling nor fully measuring the Court’s dis-

cretion, indicate the character of the reasons the

Court considers:

(a) A United States court of appeals has

entered a decision in conflict with the decision

of another United States court of appeals on the

same important matter; has decided an impor-

tant federal question in a way that conflicts with

a decision by a state court of last resort; or has

so far departed from the accepted and usual

course of judicial proceedings, or sanctioned

such a departure by a lower court, as to call for

an exercise of this Court’s supervisory

power; ...

(c) a state court or a United States court of

appeals has decided an important question of

federal law that has not been, but should be,

settled by this Court, or has decided an impor-

tant federal question in a way that conflicts with

relevant decisions of this Court.

A petition for a writ of certiorari is rarely

granted when the asserted error consists of erro-

neous factual findings or the misapplication of a

properly stated rule of law.

Sup.Ct.R.10.1(a) and (c). As the Court recently held, the

principal purpose for which the Court uses certiorari

jurisdiction is to resolve conflicts among the circuit courts

of appeal and state courts on the meaning of provisions

of federal law. Braxton v. U.S., 500 U.S. 344, 347 (1991).

Petitioners’ failure to satisfy this standard should neces-

sarily result in the Court’s denial of their Petition.

In an attempt to establish that the Fifth Circuit's

opinion conflicts with decisions of other circuit courts,

Petitioners cite several decisions touching upon qualified

immunity and excessive force for the proposition that

“other circuit courts . . . employ a different standard and

question whether or not ‘qualified immunity’ should be a

defense at all.” Petition for Writ of Certorari, p. 5. None of

the cases cited by Petitioners, however, makes such a

finding, assertion or comment. Indeed, in Ellis v. Wynalda,

999 F.2d 243 (7th Cir. 1993), cited by Petitioners for that

proposition, the court ruled that the opposite was true:

We must determine whether the district court

correctly found qualified immunity to be appro-

priate in this case.?...

2 The plaintiff argues that qualified immunity

should never apply in excessive force cases,

because of the inherent contradiction between

excessive or unreasonable force and the reason-

able use of such force. First, the plaintiff has

waived this argument by failing to present it in

the district court. Cooper [v. Lane], 969 F.2d [368]

at 371 [(7th Cir. 1992)]. Second, we disagree that

qualified immunity has no place in an excessive

force context. The doctrine is valuable in order

to describe the unusual “burden” on the non-

moving party at the summary judgment stage.

While ordinarily a court grants summary judg-

ment only if no reasonable jury could find for

the non-moving party, a court grants summary

judgment based on qualified immunity if a rea-

sonable officer could find the defendant’s

actions justified. When reasonable minds could

differ, in the typical summary judgment deci-

sion the balance tips in favor of the nonmovant

while in the qualified immunity context the bal-

ance favors the movant. See Hunter v. Bryant, __

U.S. ___, __, 112 S. Ct. 534, 537, 116 L.Ed.2d 589

(1991) (“[T]he court should ask whether the

agents acted reasonably under the settled law in N

the circumstances, not whether another reason-

able, or more reasonable, interpretation of the

events can be constructed .. . after the fact.”).

Therefore, the doctrine of qualified immunity

still serves an important purpose in cases of

alleged excessive force.

Ellis v. Wynalda, 999 F.2d at 246 n.2. Likewise, the other

cases cited by Petitioners stand not for the proposition

that the qualified immunity defense is inappropriate for

use in an excessive force case, but instead for the usual

(and un-certiorari-worthy) proposition that a genuine

issue of material fact about what actually occurred will

defeat summary judgment. See, e.g., McKinney By McKin-

ney v. DeKalb County, 997 F.2d 1440, 1443 (11th Cir. 1993)

(disputed facts in a shooting incident); Walton v. City of

Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993) (genuine

issue of material fact defeats summary judgment); and

Spann v. Rainey, 987 F.2d 1110, 1114-1116 (5th Cir. 1993)

(qualified immunity recognized under Graham is avail-

able in appropriate cases).

Petitioners’ reference to cases inapposite to the issues

presented herein do not warrant the Court’s discretionary

review in this case. All of the cases cited by Petitioners

apply this Court’s well-established precedents regarding

qualified immunity. Petitioners’ grounds for seeking cer-

tiorari are rooted not upon any actual conflict among the

circuit courts of appeal regarding this Court’s qualified

immunity precedent, but instead upon Petitioners’ mis-

reading of the lower courts’ determination of that defense

in a summary judgment context. Petitioners repeatedly

ask this Court to review a specific finding by the court

below, which finding was based upon established prece-

dent in this Court and in the Fifth Circuit, arguing that a

more reasonable interpretation of the events can be con-

structed. Petition for Writ of Certiorari, pp. 15-16. Peti-

tioners’ argument has already been addressed by this

Court, and was rejected as an incorrect statement of

applicable law. Hunter v. Bryant, 502 U.S. 224, 227-228

(1991).

The district court and the court of appeals deter-

mined that Respondents acted reasonably in the undis-

puted circumstances they faced, by properly relying upon

well settled rules of law. Petitioners’ argument would

instead inject a subjective analysis into the qualified

immunity equation, Petition for Writ of Certiorari, p. 7;

no justifiable reason exists to turn back the clock in that

regard. Petitioners’ argument complains of the exercise of

judgment by the officers in a unique situation, which is

precisely what qualified immunity is designed to protect

against. Petitioners’ misapplication of properly stated

rules of law does not warrant review of this case. Sup. Ct.

R. 10.1.1

1 Curiously, Petitioners mention “a new concept of

‘arguable probable cause’ in Fourth Amendment qualified

immunity analysis cases.” Petition for Writ of Certiorari, pp.

5-6. No citations are provided to explain this “new concept;”

such a concept is irrelevant, in any event, since there is no claim

that the officers lacked probable cause to arrest Petitioners.

10

Most striking is Petitioners’ omission of discussing

the holding in a case factually similar to the instant case.

In that case, the Ninth Circuit affirmed a jury’s findings

that police officers did not use excessive force and that

police officers acted reasonably in using pain compliance

techniques (which included nonchukas and direct physi-

cal contact causing extreme pain) when arresting anti-

abortion demonstrators. See Forrester v. City of San Diego,

25 F.3d 804 (9th Cir. 1994), cert. denied, 513 U.S. __, 115

S.Ct. 1104, 130 L.Ed.2d 1070 (1995). Petitioners do not

address this case or its analogy in their Petition. Respon-

dents contend that they did not, because they cannot

distinguish it from the facts of this case. It indicates that

the application of this Court’s precedent is being applied

at least uniformly by the circuits.

II. Summary Judgment: The Appropriate Legal Stan-

dard Regarding Respondents’ Motion for Summary

_ Judgment Required Dismissal.

Summary Judgment is appropriate in any kind of

action

... if the pleadings, depositions, answers to

interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that

the moving party is entitled to a judgment as a

matter of law.

Fed.R.Civ.P. 56(c). A motion for summary judgment is

proper when the pleadings and record taken as a whole

demonstrate that there is no genuine issue of material fact

and that the movant is entitled to judgment as a matter of

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247

11

(1986). In appropriate circumstances, awarding summary

judgment is not disfavored in federal court: “[s}ummary

judgment reinforces the purpose of the Rules, to achieve

the just, speedy, and inexpensive determination of

actions, and, when appropriate, affords a merciful end to

litigation that would otherwise be lengthy and expen-

sive.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1197 (Sth Cir.

1986).

A party moving for summary judgment need not

support his motion with affidavits or other evidence

negating the non-movant’s claims. Fed.R.Civ.P. 56. To

withstand a motion for summary judgment, the non-

movant must present evidence sufficient to establish the

existence of each element of his claim as to which he will

have the burden of proof at trial. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986); and Topalian v. Ehrman, 954 F.2d

1125, reh’g denied, 961 F.2d 215 (5th Cir.), cert. denied, 506

U.S. 825 (1992). The threshold inquiry, therefore, is

whether there are “any factual issues that properly can be

resolved only by a finder of fact because they may rea-

sonably be resolved in favor of either party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. at 251. The substantive law

identifies what facts are material. Anderson v. Liberty

Lobby, Inc., 477 U.S. at 248.

Once the moving party establishes it is entitled to

summary judgment, the burden shifts, and the non-mov-

ing party must “come forward with specific facts show-

ing that there is a genuine issue for trial.’ ” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(quoting Rule 56(e)) (emphasis in original). In other

words, summary judgment is mandatory when a party

fails tc establish the existence of an essential element of

12

his case on which that party will bear the burden of proof

at trial. Celotex Corp. v. Catrett, 477 U.S. at 322-324; Wash-

ington v. Armstrong World Industries, Inc., 839 F.2d 1121,

1122 (5th Cir. 1988). With the above summary judgment

standards in mind, the district court analyzed Respon-

dents’ motion and Petitioners’ evidence, and concluded

that Petitioners’ evidence was insufficient to establish a

material factual dispute. Petitioners presented no new

argument in their appeal below, nor do they here.

III. The Force Used Against Petitioners Did Not Rise

to the Level of a Constitutional Violation.

Petitioners complain that the lower courts’ judgment

is erroneous because of the courts’ refusal to treat Parker

and Maines’ subsequent departmental reprimands as con-

clusive, irrefutable evidence that Respondents acted

unreasonably. Petition for Writ of Certiorari, p. 7. The

district court addressed, discussed, and evaluated the

evidence head-on, and found it legally insufficient to |

create liability:

Plaintiffs argue that the subsequent reprimands

of Parker and Maines are evidence that the

Respondents acted unreasonably. However, the

DPD may require a higher standard of conduct

from its officials than that required by the

United States Constitution. The reprimands

state simply that Internal Affairs found the use

of mace unnecessary given the hindsight of a

thorough investigation. However, the U.S. Con-

stitution does not require police officers to use

the absolute least intrusive degree of force.

Instead, it only requires the force to be reason-

able to effect that particular arrest. Graham, 490

13

U.S. at 396. That the DPD demands a higher

standard of conduct from its officers than does

the Constitution is admirable. Allowing a plain-

tiff to use the internal discipline administered

by the DPD against them in a lawsuit would

discourage such high standards of conduct.

Thus, the fact that the officers were internally

reprimanded certainly does not by itself create a

conclusive presumption that they committed the

constitutional tort of excessive force.

Petition for Writ of Certiorari, Appendix C-9, C-10.

(emphasis in original). The court of appeals affirmed. Id.,

Appendix B-5. Petitioners seek reversal of the lower

courts’ rulings because they disagree with the legal effect

given to this evidence. Petitioners have presented no

authority to support their novel proposition that the

department’s written reprimand is sufficient to create an

issue of fact sufficient to warrant the case to proceed to a

jury. The district court considered all evidence before it,

and concluded that no factual dispute existed to defeat

summary judgment as to Petitioners’ excessive force

claims. The lower courts’ conclusions that Petitioners’

claim of excessive force failed as a matter of law was not

clearly erroneous under the applicable law. See Knight v.

Caldwell, 970 F.2d 1430, 1432 (5th Cir. 1992), cert. denied,

907 U.S. ___, 113 S.Ct. 198, 122 L.Ed.2d 688 (1993); Johnson

v. Morel, 876 F.2d 477, 480 (5th Cir. 1989).

Likewise, the facts as set forth by Petitioners do not

establish that the use of force was objectively unreason-

able under the circumstances. A police officer is justified

under Texas law in using force, inter alia, when and to the

degree he reasonably believes it is immediately necessary

(1) to protect himself from serious bodily injury against

14

the use or attempted use of force against him; or (2) to

overcome a person’s resistance to arrest. See Tex. PENAL

Cope §§ 9.31, 9.32, 9.33 and 9.51. Specifically, § 9.51 states:

A police officer is justified in using force against

another when and to the degree the actor rea-

sonably believes the force is immediately neces-

sary to make or assist in making an arrest... or

to prevent or assist in preventing escape after

arrest, if before using force the actor (1) mani-

fests his purpose to arrest . . . and (2) identifies

himself as a peace officer.

Tex. Penat Cope § 9.51. In the present case, Respondents

were wearing Dallas Police Department uniforms, which

clearly identified them as police officers, and there is no

contention that the officers lacked probable cause to

arrest Petitioners. Petitioners produced no credible evi-

dence which could dispute the officers’ account of the

incident with respect to the use of force. Thus, Petitioners

failed to meet their burden of proof, and summary judg-

ment was appropriate on behalf of Respondents with

respect to this claim.

IV. Individual Respondents Are Shielded From Lia-

bility by the Qualified Immunity Doctrine.

Petitioners contend that the lower courts erred in

granting the individual Respondents qualified immunity,

thus dismissing their federal claims. Petitioners argument

is not well-taken. A police officer is entitled to the

defense of qualified immunity if he can establish that his

conduct was lawful in light of clearly established law and

the information he possessed. Anderson v. Creighton, 483

a a ee ens aanenmernagi

15

U.S. 635, 641 (1987). Thus, the ultimate question regard-

ing the issue of qualified immunity in this case is whether

a reasonable police officer could have believed that the

force used by Parker and Maines was lawful in light of

clearly established law and the information possessed by

Parker and Maines at the time the decision was made to

use force to overcome Petitioners’ resistance to arrest. See

Anderson v. Creighton, 483 U.S. at 641.

Petitioners state the standard in the reverse, asserting

that since a reasonable person (in Petitioners’ mind)

would disagree with the conclusion reached, and action

taken, by the officers, that submission to a jury is manda-

ted. Petition for Writ of Certiorari, p. 16. Petitioners have

misstated the law; if reasonable minds could differ as to

the lawfulness of the officers’ actions, then qualified

immunity is mandated. Malley v. Briggs, 475 U.S. 335, 341

(1986). In other words, Petitioners’ burden was to estab-

lish that no reasonable police officer would have taken

the actions the officers took in this case. Id.; and Brown v.

Glossip, 878 F.2d 871, 874 (5th Cir. 1989). Petitioners failed

to produce such evidence.

Petitioners rely upon Graham v. Connor, 490 U.S. 386

(1989) as authority to establish the officers’ unreasonable-

ness. Petition for Writ of Certiorari, pp. 6-7, 11. Notwith-

standing that reliance, this Court’s standard of

reasonableness is generous for the police in cases where

potential danger, emergency conditions or other exigent

circumstances are present. In Graham, the Court said that

the “calculus of reasonableness” must make “allowance”

for the need of police officers “to make split second

judgments — in circumstances that are tense, uncertain,

and rapidly evolving — about the amount of force that is

16

necessary in a particular situation.” Graham v. Connor, 490

U.S. at 396-97. See also Anderson v. Creighton, 483 U.S. at

638-639 (“reasonable officer” standard; immunity protects

“all but the plainly incompetent or those who knowingly

violate the law” or those who act where “the law clearly

proscribed the actions” taken); and Malley v. Briggs, 475

U.S. at 343 (qualified immunity leaves “ample room for

mistaken judgments”). Contrary to Petitioners’ asser-

tions, a jury does not automatically get to second-guess

the officers’ decisions at the scene. Petitioners contend

that the situation could better have been handled differ-

ently, but provided no evidence, expert or otherwise, to

support that claim.

Petitioners’ reliance upon Eugene v. Alief Independent

School Dist., 65 F.3d 1299, 1305 (5th Cir. 1995) is mis-

placed, to the extent Petitioners rely upon it regarding a

finding of objective unreasonableness. Petition for Writ of

Certiorari, pp. 15-16. In Alief, the facts were disputed,

particularly as to the existence of probable cause to

arrest; that issue (probable cause) is not present in this

case, nor are the underlying facts in a similar state of

contention. Based on the undisputed facts, the district

court found Respondents’ actions objectively reasonable.

Accordingly, Respondents were entitled to qualified

immunity, and all federal claims regarding excessive

force were rightly dismissed against them.

The individual Respondents were also entitled to

qualified immunity as a matter of pleading. Public offi-

cials who act within the scope of their discretionary

authority and in the course of their official respon-

sibilities are entitled to the defense of qualified immunity,

which shields them from suit as well as from liability for

eateries

17

civil damages, where their conduct does not violate

“clearly established statutory or constitutional rights of

which a reasonable person would have known.” Davis v.

Scherer, 468 U.S. 183 (1984), quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). See also Malley v. Briggs, 475 U.S.

335 (1986); and Pierson v. Ray, 386 U.S. 547 (1967). Police

officers are specifically entitled to assert this qualified

immunity defense. See Gassner v. City of Garland, 864 F.2d

394 (5th Cir. 1989); Trejo v. Perez, 693 F.2d 482 (5th Cir.

1982).

In Siegert v. Gilley, 500 U.S. 226 (1991), this Court

“clarif[ied] the analytical structure under which a claim

of qualified immunity should be addressed.” Siegert v.

Gilley, 500 U.S. at 231. In rejecting the approach taken by

the lower court, which had assumed without deciding

that a constitutional claim had been stated, the Supreme

Court held that the first inquiry in the examination of a

defendant’s claim of qualified immunity is whether the

plaintiff “allege[d] the violation of a clearly established

constitutional right.” Id. Prior to Siegert, the Fifth Circuit

routinely addressed a defendant's entitlement to quali-

fied immunity before reaching the merits of a plaintiff’s

constitutional claims. See, e.g., Mouille v. City of Live Oak,

977 F.2d 924 (5th Cir. 1992); and Pfannsteil v. City of

Marion, 918 F.2d 1178 (5th Cir. 1990). In light of Siegert,

the Fifth Circuit mandates that trial courts should first

determine whether a plaintiff has stated a claim for a

violation of a constitutional right and then, and only

then, address whether a plaintiff has pleaded facts that, if

proved, would overcome a defendant’s entitlement to

qualified immunity. Duckett v. City of Cedar Park, 950 F.2d

272, 276-78 (5th Cir. 1992). See also Samaad v. City of Dallas,

18

940 F.2d 925, 940 (5th Cir. 1991); and Quives v. Campbell,

934 F.2d 668, 670 (5th Cir. 1991). Petitioners unequivocally

failed to meet the above standards and dismissal was

appropriate.

V. Petitioners Were Not Injured as The Result of an

Unlawful Policy, Practice or Custom of the City of

Dallas.

1. The City of Dallas Has No Officially Adopted

Policy Which is Unconstitutional.

Petitioners assert that the City failed to adequately

train and supervise Respondents. Petition for Writ of

Certiorari, pp. 16-18. Petitioners also contend that the

City should be held liable to Petitioners based upon

Respondents’ actions and the status of Respondents as

employees of the City of Dallas. Id. Petitioners’ conten-

tions are without merit, and summary judgment was

appropriate on behalf of the City of Dallas (and the other

Respondents sued in their official capacity which, under

Kentucky v. Graham, 473 U.S. 159, 166 (1985) is another

way to sue the entity), because Petitioners did not meet

their burden required to impose liability upon the City of

Dallas.

A municipality can be sued and subjected to mone-

tary damages and injunctive relief under 42 U.S.C. § 1983

only if its official policy or custom causes a person to be

deprived of a federally protected right. Board of the

County Commissioners of Bryan County, Oklahoma v. Brown,

520 U.S. __, 117 S.Ct. __, 137 L.Ed.2d 626, 638-639

(1997); Monell v. New York City Department of Social Ser-

vices, 436 U.S. 658, 694 (1978). A city cannot be liable for

19

civil rights violations under a theory of respondeat supe-

rior or vicarious liability. Id. See also Baskin v. Parker, 602

F.2d 1205, 1208 (5th Cir. 1979).

Liability must rest on official policy, meaning the city

government's policy, and not the policy of an individual

official. Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.

1984), cert. denied, 472 U.S. 1016 (1985). The official com-

plained of must

possess final authority to establish municipal

policy with respect to the action ordered... .

The official must also be responsible for estab-

lishing final government policy respecting such

activity before the municipality can be held lia-

ble. . . . [WJhether an official had final poli-

cymaking authority is a question of state law.

Pembaur v. City of Cincinnati, 475 U.S. 469, 481-482 (1986).

An employee, agency or board of a city is not a policy-

maker unless the city, through its lawmakers, has dele-

gated exclusive policymaking authority to that employee,

agency or board and cannot review the action or decision

of the employee, agency or_board. See St. Louis v. Praprot-

nik, 485 U.S. 112 (1988); Worsham v. City-of Pasadena, 881

F.2d 1336, 1340-41 (5th Cir. 1989).

Petitioners had the burden of establishing that they

have been injured as a result of a policy of the City of

Dallas. Petitioners did not establish that the Dallas City

Council (the City’s policymakers) or a policymaking offi-

cial made a deliberate and conscious decision to ignore

the rights of citizens with whom the police would come

into contact or that any alleged policy actually caused the

alleged injury to them. City of Canton v. Harris, 489 U.S.

20

378, 389 (1989). Accordingly, summary judgment was

appropriate for the City of Dallas.

2. The City of Dallas Has No Persistent, Wide-

spread Practice of City Officials or Employees

Which Was So Widespread as to Constitute a

Custom That Represented City Policy.

Petitioners contend that the City failed to adopt poli-

cies that instructed officers on the proper use of mace

during arrests, that the supervisors failed to so train or

supervise, and that the City was somehow negligent in

those regards. Petition for Writ of Certiorari, pp. 16-18.

Negligence cannot form the basis of liability in a § 1983

cause of action. Daniels v. Williams, 474 U.S. 327 (1986);

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

Petitioners, having failed to establish any evidence of

an official policy adopted by the Dallas City Council

(discussed in subsection 1, above), and unable to estab-

lish a claim for liability based on negligence, must there-

fore establish a persistent, widespread practice of City

officials or employees which was so widespread as to

constitute a custom that represented City policy. A single

incident, without more, is not sufficient. See City of Okla-

homa City v. Tuttle, 471 U.S. 808, 823-24 (1985). Petitioners

only complain of their arrest, and provided no evidence

of any other incident, to meet this requirement. As such,

Petitioners’ evidence, construed in the light most favor-

able to them, constitutes a complaint concerning an iso-

lated incident occurring when pepper mace had just been

provided to some officers for use in making arrests. Even

21

if it were determined to have been misconduct, it is

undisputed that this was an isolated incident.

Finally, the facts and applicable law established, and

the lower courts so held, that Respondents committed no

constitutional violation. Petition for Writ of Certiorari,

Appendix B-5, C-13, C-14. Accordingly, if there is no

underlying constitutional wrong, a person has suffered

no constitutional injury, and a city cannot be held liable

based on a theory that its policy or custom caused a

constitutional injury because the existence of the policy

or custom is irrelevant. Los Angeles v. Heller, 475 U.S. 796,

799 (1986). Therefore, the City of Dallas could not be

liable to Petitioners under § 1983, and summary judgment

was proper.

.

¥

22

CONCLUSION

None of the issues Petitioners present is of such

precedential value that-warrants review by this Court.

Additionally, there is

no conflict among the circuits or

among the circuits and state courts of last resort regard-

ing any of the issues

presented. Further, this case does

not present an issue of federal law that needs to be settled

by this Court. The Fifth Circuit and the district court

meticulously reviewed the facts and applied correct legal

standards in reaching

their conclusions. For the reasons

stated herein, this Court should deny Petitioners’ Petition

for Writ of Certiorari.

October 31, 1997

Respectfully submitted,

Crry ATTORNEY OF THE

City oF DALLAS

Epwin P. Voss, Jr.

Assistant City Attorney

Counsel of Record

Mark E. GOLDSTUCKER

Assistant City Attorney

City Hall 7BN

1500 Marilla Street

Dallas, Texas 75201

(214) 670-3510

Telecopier - (214) 670-3515

Attorneys for Respondents