Opposition Brief — City of Birmingham v. Morro

Supreme Court, &.&

FILED

No. 97-878 FEB} -

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Suprene Court of the Hnited States

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October Term, 1997

CITY OF BIRMINGHAM, ALABAMA,

Petitioner.

SCOTT THOMAS MORRO,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

WILLIAM M. DAWSON M. CLAY RAGSDALE

DAWSON & GEAR Counsel of Record

620 Park Place Tower LAW OFFICES OF

2001 Park Place North M. CLAY RAGSDALE

Birmingham, Alabama 35203 1929 Third Avenue North

(205) 323-6170 The Farley Building

Suite 550

Birmingham, Alabama 35203

(205) 251-4775

Attorneys for Respondent

144352 (800) 274-3321 + (800) 259-6859 be Apoeliate

Services, inc

A DIVISION OF COUNSEL PRESS

—

TABLE OF CONTENTS

Page

gt ERPPCT TTT Cree rere Oe er Te l

Reasons for Denying the Writ ..................-. 4

I. The Basis For The Petition Was Not Timely Raised

On Appeal To The Court Of Appeals. ........ 4

II. The Decision Below Is Nothing More Than The

Affirmance Of A District Court’s Discretionary

Rulings Rendered As Part Of Its Role In

Formulating Issues To Be Tried; As Such, It

Carries No Weighty Considerations Justifying The

Exercise Of Certiorari Jurisdiction. .......... 6

CE 616.6544 sdb a CA bee SURES CES Eee FEST Ewe 13

TABLE OF CITATIONS

Cases Cited:

Braswell v. ConAgra, Inc., 936 F.2d 1169 (11th Cir.

ED sn Uoakerh buenas oka kee ha es ee eee a een ee 9

Hodges v. United States, 597 F.2d 1014 (Sth Cir. 1979)

Ata eee MEE LD Oks eek eens ta ee 9

Lexington Ins. Co. v. Cooke’s Seafood, 835 F.2d 1364

qi) oe 3 Seer erry Tre ert eer rT sree 9

Monell v. Dept. of Social Services, 436 U.S. 658 (1978)

sees Swatea es aa Cue RRR Ree Be Be hs ae te Oe Me Oe BE, 12

il

Contents

Page

Pacific Indemnity Co. v. Broward County, 465 F.2d 99

Cee Ge. Tee cos cckvisrasn ene 4

Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct.

ve Fe @ Fel ere ere 7

Santiago v. Lykes Bros. S.S. Co., 986 F.2d 423 (11th

Coe. FRGe nen cce00eedsnennneeeeeee )

Walker v. Anderson Elec. Connectors, 944 F.2d 841 (11th

COR FED kv ncecitceesdueeceseaseaa eee )

United States Constitution Cited:

Patt RRS : . nso oc bivv cc ntuceeeecoee eee i

Rules Cited:

Pee. Be. Cae & OG nn sic dscnscevaccaevenserseee 7

reek, Bi Ge: ESD vknccac dens pevoeee eee eee &

APPENDIX

Appendix A — Brief of City of Birmingham (Appellant)

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STATEMENT OF THE CASE

Morro brought suit against The City of Birmingham (“The

City”) for the violation of his rights under the First Amendment

of the United States Constitution. In 1990, Morro attended as a

spectator the trial of Erica Arrington, the daughter of the Mayor

of Birmingham. His attendance at this public trial, which

represented a show of support for a fellow officer, was viewed

as a demonstration of disrespect for the Mayor. See Morro v.

City of Birmingham, 926 F. Supp. 1033, 1035 [34a].' As a

result, the Police Chief of Birmingham, Arthur Deutcsh, ordered

the suspension of Morro for thirty days without pay. However,

the stated reason for the suspension was that Morro had

deliberately been unprepared to testify as an arresting officer in

another matter, implying that Morro had obstructed justice.

Morro’s suspension was effective immediately and received

widespread attention throughout the police department

humiliating Morro and causing considerable damage to his

reputation.

The order of suspension was not subject to any appeal or

review procedure before having operative effect; instead,

Morro’s only recourse was with the Jefferson County Personnel

Board, a body wholly separate from the City, which hears

appeals from personnel decisions. Because the appeal procedures

did not interrupt the operation of the suspension, Morro served

out the entire thirty day term without pay. The Personnel Board

later issued a decision “rescinding” the order of suspension and

awarding back pay; however, the Board does not have the power

to award compensatory damages for mental anguish,

humiliation, or damage to reputation.

The City participated in two pretrial conferences during

which the District Court formulated the issues for trial. The

1. The City has never contested that attendance at this trial was

an activity protected by the First Amendment. [All references to

Petitioner’s Appendix appear in brackets.]

2

City was under the duty to identify those issues which were to

be tried; Monell or any related theory was not identified by the

City in the pretrial proceedings or orders as a contested matter.

926 F. Supp. at 1041. [46a].?

At the three day trial, Morro proffered three witnesses whose

testimony would have shown that the City and the Chief of

Police engaged in a pattern and practice of retaliation in response

to similar First Amendment activities. This proffer was objected

to by the City on the basis of relevancy. The District Court

explicitly stated his understanding, derived from the pretrial

proceedings, that the City had conceded its liability for the

chief’s conduct (the Monell issue). The District Court made a

direct inquiry to the City’s counsel to state whether this

understanding was correct. Morro v. City of Birmingham, 117

F.3d 508, 511-12 [6a]. The City communicated its assent by

remaining silent as the District Court sustained the objection

and barred Morro’s witnesses from testifying. Morro, believing

any doubt about the Monell issue had been resolved, rested his

case without having presented any pattern and practice

witnesses. The City made a Rule 50 motion making no reference

to Monell or otherwise attempting to distance itself from the

chief as the final policymaker.

2. The City contends that by briefly referencing Monell type

issues in its initial motion to dismiss in 1992 and again in a motion

for summary judgment in 1993, it could not have concealed the

matter during the issue formulation process of the pretrial conference

occurring in 1995. It is this very type of argument that pretrial issue

formulation is designed to foreclose. Adversaries and the court are

not obliged to search years of court filings for oblique references in

shotgun pleadings and long forgotten motion papers to ascertain the

triable issues. Nor can counsel safely avoid their obligation to

identify contested matters by hiding them from view behind general

denials to “each and every material allegation of plaintiff’s

complaint filed in this cause”. [81al.

3

The City presented its witnesses; no evidence was offered

by the City relative to the authority of the Personnel Board, the

scope of the Chief’s authority or other matters probative to the

Monell issue. The City rested, the evidence was closed and the

City renewed its Rule 50 motion, again making no reference to

the Monell issue.

The case proceeded to the charge conference. The City

presented a requested instruction to the District Court which

read:

You are instructed that the Chief of Police was an

official whose acts constitute final official policy of

the City of Birmingham.

117 F.3d at 512 [7a]. The City abruptly reversed its position,

withdrew the affirmative charge which confirmed its earlier

concession of the Monell issue, and raised for the first time in

the trial the argument that the chief was not an official whose

acts constituted final official policy of the City.

Following trial, the City renewed its Rule 50 motion

including arguments based on Monell. The District Court issued

a lengthy decision addressing the unfair surprise generated by

what it termed “The Belated Monell Defense”. 926 F. Supp. at

1036 [35a]. The District Court determined that the issue had

not been preserved by proper identification at pretrial, and the

City’s conduct in “concealing” the issue estopped it from relying

on Monell. 926 F. Supp. at 1041 [45a-46a]. The City appealed

to the Eleventh Circuit but did not challenge the District Court’s

application of judicial estoppel even though that was a principal

underpinning of the District Court’s ruling. (See Appendix A,

City’s Brief to Court of Appeals). It was only after the panel of

the Eleventh Circuit affirmed the decision of the District Court

did the City first challenge, in its Suggestion for Rehearing En

4

Banc, the discretionary findings of the District Court that the

issue was not properly preserved.

The Petitioner in its Statement of the Case opines that the

City could not be liable “on a proper application of governing

principles”. [note 1, 3]. Morro disputes this and contends that

the Eleventh Circuit’s suggestion that the City probably would

have prevailed had it preserved the issue is erroneous. But

because the City’s concessions at the pretrial conferences and at

trial dispensed with this issue, there was no need nor opportunity

for Morro to develop a complete record from which the issue

could have been properly adjudicated. As a result the Court of

Appeals did not determine this issue; its opinion references it

only in terms of what “probably” would have occurred had the

issue been raised. 117 F.3d 514-15 [12a-13a].

REASONS FOR DENYING THE WRIT

I.

THE BASIS FOR THE PETITION WAS NOT TIMELY

RAISED ON APPEAL TO THE COURT OF APPEALS.

The issue on which the petition is premised was not raised

by the City to the District Court nor to the Court of Appeals

until the Suggestion for Rehearing En Banc. A careful

examination of the City’s principal brief (no reply brief was

filed) to the Court of Appeals will not reveal any reference to

the issue which they now contend to be one having important

ramifications; no mention of “affirmative defense,” “waiver,”

“judicial estoppel,” “burden of proof,” the effect of the pre-trial

conferences and orders, the District Court’s description of Monell

as a “defense”, nor to the case principally relied on by the

petitioner, Pacific Indemnity Co. v. Broward County, 465 F.2d

99 (Sth Cir. 1972), is to be found. (See Appendix A, City’s

Brief to Court of Appeals).

5

The District Court issued its extensive opinion on the City’s

Rule 50 motion on April 12, 1996 (with addendum to the

opinion dated April 17, 1996) which included the lengthy

section entitled “The Belated Monell Defense”. The District

Court set out in detail the circumstances supporting his

conclusions that the Monell “defense” had been “concealed”,

that the City’s conduct at trial and pretrial formed the basis of

judicial estoppel, and that the City had affirmatively conceded

Monell. 926 F. Supp. 1036-37 [35a-46a]. It described the

consequences of the City’s late attempt to raise Monell, and

how prejudice and unfair surprise would result by allowing the

belated assertion of the issue after the City had used its

concession to secure the exclusion of Morro’s witnesses. 926 F.

Supp. 1040-41 [45(a)-46(a)]. Despite clearly being a primary

basis of the District Court’s ruling, the City did not challenge it

on appeal. The City said nothing about estoppel, concessions,

the pretrial order, whether the trial court abused its discretion in

refusing to consider the belated contention, or why it should be

allowed to benefit from the concealment of the issue at trial.

(See Appendix A). Yet now the City urges this Court to accept

its petition arguing that the Court of Appeals ruling implicates

the high degree of importance essential to trigger the application

of the United States Supreme Court’s scarce resources. Had this

issue occupied such a position of importance, it should have

been timely raised below.

The failure to timely raise this challenge on appeal is fatal

to the City’s petition for writ of certiorari. Little justification

for certiorari jurisdiction exists over a Court of Appeals

determination of the discretionary ruling of a trial court. Where

the argument is not made in the first instance to the Court of

Appeals, the issue is dead. Even in the Petition, the City relegates

its concession and the basis of the District Court’s finding of

estoppel to a footnote, and it wholly fails to mention that the

District Court, in open court, excluded Morro’s witnesses

6

because the City conceded that “under Pembaur and Prapotnik

and Jett [the chief] was the City.” 117 F.3d 512 [7a]. (See

footnote 2, Petition p. 1). It also fails to mention that, or explain

why, all of the issues it now argues were not timely raised and

have never been briefed before in this case. The Suggestion for

Rehearing, in which these issues first surfaced, was summarily

rejected.

Rather than address an issue of importance to jurisprudence,

the City wants relief from, or the benefit of, a strategic tactic it

elected at the trial court level. Certiorari should be refused where

the petitioner conceded an issue at trial, obtained a material

benefit from the concession, was denied the opportunity to

reverse its position because of demonstrated prejudice to its

adversary, and failed to challenge the District Court’s ruling on

appeal. Despite the spin placed on the issues by the Petitioner,

any review of this matter will ultimately devolve to whether the

District Court abused its discretion in refusing to allow the City

to reverse its position and escape the consequences of concessions

it made as the issues were formulated and tried.

Il.

THE DECISION BELOW IS NOTHING MORE THAN

THE AFFIRMANCE OF A DISTRICT COURT’S

DISCRETIONARY RULINGS RENDERED AS PART OF

ITS ROLE IN FORMULATING ISSUES TO BE TRIED;

AS SUCH, IT CARRIES NO WEIGHTY

CONSIDERATIONS JUSTIFYING THE EXERCISE OF

CERTIORARI JURISDICTION.

The decision of the Court of Appeals does not rest on

constitutional principles nor is it one on which the different

circuits disagree. It has, in effect, little precedential application

because it involves appellate review of the discretionary

decisions of the District Court rendered during the course of its

management of the case.

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7

The District Court, after presiding over two pretrial hearings

and the trial of the case, during which it supervised the

formulation of the issues, determined that the City had conceded

the Monell issue. Whether characterized as an element of the

plaintiff’s claim or as an affirmative defense, any issue may be

waived or conceded by either party. The comments to Rule 16

Fed. R. Civ. P. give guidance:

Counsel bear a substantial responsibility for assisting

the court in identifying the factual issues worthy of

trial. If counsel fail to identify an issue for the court,

the right to have the issue tried is waived.

The Court of Appeals refused to interfere with the District

Court’s exercise of its discretion and affirmed.

Rather than hinging on the characterization of Monell

limitation on municipal liability as a defense or an element of

the plaintiff’s claim, the decisions of the District Court and the

Court of Appeals rest on the interpretation of the pretrial order

and, more importantly in this case, the conduct of the City’s

trial counsel during the trial of the case. The Monell issue first

surfaced at trial when Morro proffered three witnesses whose

testimony would have proven custom and practice.’ The City

objected on the basis of relevancy prompting the District Court’s

inquiry to the City:

Well, is it not conceded from the pre-trial, is my

3. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (n.10),

106 S. Ct. 1292, 1299, 89 L. Ed. 2d 452 (1996) holding:

A § 1983 plaintiff thus may be able to recover from a

municipality without adducing evidence of an

affirmative decision by policymakers if able to prove

that the challenged action was pursuant to a state

“custom or usage.”

ge

8

recollection of this case that the City of Birmingham,

as is true of most if not all municipalities, has as its

decision maker ultimately with respect to police

command decisions the chief, so that we’re not

talking about and the defendant is not attempting to

distance itself from whatever it was that Chief

Deutcsh did or didn’t do that might or might not

constitute a violation of a constitutional right of the

plaintiff because under Pembaur and Prapotnik and

Jett he was the City.

The question then is not — and there’s no

requirement on the plaintiff in this case, is there, to

prove that this man, the chief, did in fact exercise

the authority in other instances, whether rightly or

wrongly, that he exercised here? It’s the City. He

was the City. And I think the city concedes that.

117 F.3d at 512 [6a]. The Court of Appeals then noted:

The City did not take its next available opportunity

to correct the District Court’s observation that it had

conceded that the chief was the final policymaker.

Instead, the City adhered to its relevancy objection

despite the District Court’s stated understanding that

the objection was premised upon a concession of

the chief’s final policymaker status.

117 F.3d at 512 [7a].

The City did not voice disagreement in response to the

District Court’s observation because the City apparently agreed.

For example, the City did not raise the Monell issue in its Rule

50 motion at the close of Morro’s case nor at the close of all

evidence; it submitted a jury instruction to the court at the

9

beginning of the charge conference which affirmatively charged

the Monell issue out of the case. 117 F.3d at 512-13 [7a-8a].

Only when the charge conference was underway did the City

reverse its position, withdraw its requested affirmative charge,

and reopened argument on the Rule 50 motion by stating:

There are a couple of other matters though, Your

Honor —

The Court: All right.

[Counsel]: — that bother me greatly. And I should

have mentioned them before, but I think now is the

time to mention them.

[83a].

The Court of Appeals followed established authority giving

the trial court discretion to effectively manage the cases before

it, citing Hodges v. United States, 597 F.2d 1014 (Sth Cir.

1979); Santiago v. Lykes Bros. S.S. Co., 986 F.2d 423 (11th

Cir. 1993); Walker v. Anderson Elec. Connectors, 944 F.2d 841

(11th Cir. 1991); Braswell v. ConAgra, Inc., 936 F.2d 1169

(11th Cir. 1991); Lexington Ins. Co. v. Cooke’s Seafood, 835

F.2d 1364 (11th Cir. 1988). By remaining silent in the face of a

direct inquiry from the District Court, the City successfully

prevented the introduction of evidence which would have firmly

established the “custom and usage” method of demonstrating

municipal liability. Having secured this tactical advantage, the

City waited until after all evidence was in to maintain that Morro

had failed to present sufficient evidence from which municipal

liability could be established. It was well within the District

Court’s discretion to deny the City the benefit of what the Court

of Appeals described as an “ambush”. 117 F.3d at 511-12 [note

3, 6a]. It was manifestly appropriate for the Court of Appeals

10

to refuse to disturb this exercise of discretion; given the complete

absence of any argument that the District Court had abused its

discretion, erroneously treated Monell as a defense,

misinterpreted its pretrial orders, or incorrectly applied the

doctrines of waiver or estoppel, the Court of Appeals could

have reached no other conclusion.

The Court of Appeals hesitancy to substitute itself for the

District Court on matters related to the formulation of issues

and the enforcement of pretrial orders is based on sound policy

as well as precedent. The District Court presides over pretrial

conferences where counsel meet face to face with the Court to

crystallize the issues for trial. Trial courts routinely demand

Stipulations and concessions, and the obligation is on counsel

to identify contested matters. Typically, a District Court will

question counsel: “What are the contested issues?” The issue

formulation process would be rendered ineffective if counsel

were permitted to preserve all issues by responding: “General

denial.”

Here the District Court presided over two pretrial

conferences attended by the same attorneys who tried the case.

He saw and heard counsel for the City as the issues were

formulated, and he confirmed at trial what appeared firmly

understood when he stated: “He [Deutcsh] was the City. And I

think the city concedes that.” If the City believed that this

implicated important burden of proof issues relating to the

characterization of Monell as a defense or an element of the

plaintiff’s case, or that the District Court and Morro were

mistaken about the issues being tried, why did it remain silent?

The Court of Appeals refused to allow this “sort of ambush”.

117 F.3d at 516 [note 3, 16a].

The only aspect of the Court of Appeals’ decision relating

to anything other than the review of discretionary decisions of

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11

the District Court are references as to what its decision might be

if it were presented with the final policymaker issue. The

petitioner’s remark to the effect that the Court of Appeals was

“undoubtedly” correct regarding its prediction of the outcome

of the case had the City not conceded the Monell issue jumps

the gun. (See Petition, footnote 1, page 3.) First, the act of a

final policymaker is not the oniy path to municipal liability;

the City’s liability would have also been established had Morro

been permitted to present testimony reflecting the custom and

practice of the City. See 117 F.3d at 516, n.3 [16a]. This

evidence was excluded because the City conceded that its chief

of police was the final policymaker for purposes of “Pembaur,

Paprotnik, and Jett”. 117 F.3d at 511-12 [6a]. Moreover, the

City’s concession of the final policymaker issue dispensed with

the necessity or opportunity for the District Court (and the Court

of Appeals) to determine on the basis of a complete record the

liability of the City under either the final policymaker or custom

and usage approach. There was simply no need for Morro to

present evidence or argument about the role and meaningfulness

of the Personnel Board review and whether, under state law,

the decision of the chief of police satisfied Monell; the City had

agreed that this was not an issue.

Nevertheless, it is noteworthy that the evidence

demonstrated the absence of meaningful review available to

protect Morro and those like him from retaliatory conduct from

City policymakers. Evidence was adduced showing conduct

by the official policymaker of the City over matters relating to

police personnel activities that produced immediate adverse

consequences to one exercising his First Amendment rights.

The jury found that Morro’s suspension was a result of Morro’s

exercise of his First Amendment rights and rejected as a pretext

the “unpreparedness” charge. The Personnel Board review

process did not and could not intercede and protect Morro from

the mental anguish, humiliation and injury to his reputation he

12

suffered during the suspension period; it only has the power to

rescind an order of suspension that had already been enforced

and award back pay.

Much like judicial review, the Personnel Board is separate

from the City and review is conducted after the fact. The

suspension, being the final act of the City, was effective

immediately and Morro served out the full term of his

suspension without pay while the Personnel Board appeal

process was conducted. The jury heard testimony of the mental

anguish and lasting humiliation he suffered while under

suspension and also, without objection, of the continuing

adverse employment action Morro suffered for years after the

suspension. 926 F. Supp. at 1036, 1042 [37a-38a, 48a]. The

jury’s award of $150,000, the amount of which has never been

challenged, illustrates the severity of the injury not redressable

by Personnel Board review. While some municipalities may

have procedures that review adverse employment decisions

before the consequences take effect thereby preventing injury,

City employees have no such preventive remedy when faced

with a decision of the final policymaker. The Personnel Board

to which Morro appealed his suspension addresses such matters

post facto and cannot enjoin or stay the policymaker’s decision.

But because the City conceded this issue, it was not litigated,

and comments as to what “probably” would have been the

outcome obviously rise only to the level of dictum, not an

“undoubtedly” correct interpretation of a complex issue of

constitutional law.

tes a

:

13

CONCLUSION

The first time the City raised the question now presented

to the United States Supreme Court was in its Petition for

Rehearing En Banc to the Court of Appeals. Neither the District

Court nor the panel of the Court of Appeals were timely

presented with the opportunity to address the arguments now

raised to this Court. Moreover, the City has failed to demonstrate

that the decision below rises to the level of importance making

certiorari desirable; the decision will not impact future litigation

except to make trial counsel more aware of the importance of

issue formulation to the orderly management of a case. For

these reasons, the writ should not issue.

Respectfully submitted,

M. CLAY RAGSDALE

Counsel of Record

LAW OFFICES OF

M. CLAY RAGSDALE

1929 Third Avenue North

The Farley Building

Suite 550

Birmingham, Alabama 35203

(205) 251-4775

WILLIAM M. DAWSON

) DAWSON & GEAR

; 620 Park Place Tower

2001 Park Place North

; Birmingham, Alabama 35203

(205) 323-6170

Ps Aiea “Chante

Attorneys for Respondent

APPENDIX

la

APPENDIX A — BRIEF OF CITY OF BIRMINGHAM

(APPELLANT) TO THE COURT OF APPEALS

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

DOCKET NO: 96-6445

SCOTT MORRO,

APPELLEE,

VS.

THE CITY OF BIRMINGHAM,

APPELLANT.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CASE NUMBER: CV 92-AR-02339-S

BRIEF OF APPELLANT

* * *

CERTIFICATE OF INTERESTED PERSON

AND CORPORATE DISCLOSURE STATEMENT

Counsel hereby certifies that the following have an interest

in the outcome of this case:

(a) Arrington, Richard Jr. — Mayor, City of Birmingham

(b) Bell, Roosevelt — Councillor, City of Birmingham

2a

Appendix A

(c) Bell, William — Councillor, City of Birmingham

(d) Bentley, Thomas, III — Assistant City Attorney

Counsel for Appellant

(e) Blake, Dr. Jimmy — Councillor, City of Birmingham

(f) Blankenship, Eddie — Councillor, City of Birmingham

(g) City of Birmingham — Defendant/Appellant

(h) Acker, Jr., William M. Honorable — United States

District Judge

(i) Coleman, Linda — Councillor, City of Birmingham

(j) Daniel, Linda — member Jefferson County Personnel Board

(k) Davis, E. Byron — Councillor, City of Birmingham

(1) Edens, John M. — Assistant City Attorney

Counsel for Defendant/Appellant

(m) M. Clay Ragsdale — Counsel for Appellee

(n) Scott Morro — Plaintiff/Appellee

(o) Gunn, Aldrich — Councillor, City of Birmingham

(p) Jefferson County Personnel Board

(q) Johnson, James B. — member Jefferson County Personnel

Board

3a

Appendix A

(r) Newton, Demetrius C. — City Attorney, City of

Birmingham

(s) Payton, Ben — Executive Director Jefferson County

Personnel Board

(t) Sewell, Patricia — Councillor, City of Birmingham

(u) Michael Fliegel — Assistant City Attorney

Counsel for Defendant/Appellant

ORAL ARGUMENT REQUESTED

Appellant requests oral argument in this appeal. Appellant

believes that oral argument is necessary in this case although

the Court has spoken numerous times on the dispositive issue

in this case-qualified immunity. Appellant believes the decisional

process will be aided by oral argument. This appeal is not

frivolous and appellant does not believe that the court has

decided a cases recently on these precise facts

* * *

CERTIFICATE OF TYPE SIZE AND STYLE

Appellant certifies that the size and style of type used in

the main body of this brief is Courier 10cpi. The brief includes

several appendices which are the same or different unknown

type styles.

STATEMENT OF JURISDICTION

This is an appeal of a final decision of the United States

District Court for the Northern District of Alabama, Southern

Division. Jurisdiction of this appeal is based on 28 U.S.C.

§ 1291.

4a

Appendix A

STATEMENT OF THE ISSUES

I. WHETHER THE DISCIPLINARY DECISIONS OF A

CITY OF BIRMINGHAM POLICE CHIEF ARE FINAL

DECISIONS WHICH MAY SUBJECT THE CITY TO

LIABILITY UNDER MONELL v. DEPARTMENT OF SOCIAL

SERVICES

II. WHETHER THERE WAS INSUFFICIENT PROOF

THAT MORRO SUFFERED A CONSTITUTIONAL

DEPRIVATION.

III. WHETHER ADMITTING THE PERSONNEL

BOARD HEARING OFFICER’S REPORT INTO EVIDENCE

WAS REVERSIBLE ERROR

IV. WHETHER THE DISTRICT COURT ERRED

REVERSIBLY IN REFUSING CITY’S REQUESTED

INSTRUCTION ON § 1983 MUNICIPAL LIABILITY

V. WHETHER OR NOT SELECTION OF VENIRE

FROM A HOLDOVER JURY POOL DISCRIMINATES OR

VIOLATES THE EQUAL PROTECTION RIGHTS OF THE

DEFENDANTS.

STATEMENT OF THE CASE

This case was initiated by the plaintiff’s complaint filed

October 2, 1992 which sought declaratory, injunctive and

monetary relief from named defendants Arthur Deutcsh

individually and in his capacity as chief of the City of

Birmingham Police Department and the City of Birmingham.

R1-1. Plaintiff invoked federal jurisdiction under 28 U.S.C.

5a

Appendix A

§ 1343 seeking relief for an alleged constitutional rights

violation through 42 U.S.C. § 1983. The complaint alleged

that the defendants had violated plaintiff’s constitutionally

guaranteed right to free speech by punishing him for attending

a public trial. R1-1-2.

On October 26, 1992 the defendants moved to dismiss the

complaint on the ground that it was not supported by specific

factual allegations. R1-5-1. Furthermore paragraph (3) of the

motion to dismiss specifically pointed out the failure of plaintiff

to allege that the City’s liability was premised on an official

policy, practice, or custom of the City of Birmingham as required

by Monell v. New York City Department of Social Services, 436

U.S. 658, 98 S.Ct. 2018 (1978), which case was specifically

cited in the motion to dismiss. R1-5-2. On November 24, 1992

the District Court, Judge William A. Acker entered an order

dismissing the complaint for vagueness but plaintiff was given

leave therein to amend the complaint within 10 days. R1-7.

On December 17, 1992 plaintiff filed his amended

complaint which included an attachment outlining the

disciplinary charges which had been brought against him by

the Chief and the City. R1-10. The amended complaint was

answered by defendants on January 12, 1993. The amended

complaint alleged that Deutcsh had acted to violate plaintiff’s

constitutional rights as a policy maker of the City of

Birmingham. The defendants’ answer to the complaint

specifically denied the material averments of this allegation in

the complaint. R1-11-2

The district court entered its scheduling order in this case

on January 13, 1993. On April 20 1993 a pretrial conference

was held which was attended by the court and counsel for all

6a

Appendix A

parties. Pursuant to the conference the district court on April

20, 1993 issued a pretrial order. R1-17. Therein the plaintiff

again asserted that defendant Deutcsh was a policy maker for

the City of Birmingham. R1-17-2. The defendants once again

denied each and every material allegation of the plaintiff’s

complaint. R1-17-2. In so doing the defendants denied that

part of the complaint and the pretrial position of plaintiff which

sought to establish the required allegation (and subsequent

required proof) of a municipal policy or a decision by a

municipal policy maker. The very same day the defendants filed

a summary judgment motion which claimed that plaintiff failed

to allege (and thereafter prove) a policy or practice of the City

which could cause the City to be liable under 42 U.S.C. § 1983.

R1-18-1. The motion also claimed that Deutcsh was entitled to

judgment in his favor individually under principles of qualified

immunity.

On April 21, 1993 the district court issued a Rule 56

submission order. R1-19. On August 20, 1993 the district court

denied the defendants’ motion for summary judgment, filing

with the denial order a memorandum opinion. R2-50. Between

April 21, and August 20, 1993 there were several orders entered

by the district court related to discovery. These matters were

referred to the United States Magistrate Judge, Paul W. Greene.

The Magistrate Judge entered orders accordingly and these were

complied with by the parties.

On August 24, 1993 Deutcsh through his counsel filed

notice of an interlocutory appeal pursuant to 28 U.S.C. § 1292

to the United States Court of Appeal for the Eleventh Circuit as

to the denial of the summary judgment insofar as it claimed

that he was entitled to judgment in his favor based upon the

defense of qualified immunity. R2-51. On October 19, 1994

oe pom tbe See 6 tee

7a

Appendix A

the Court of Appeals reversed the district court’s judgment on

the qualified immunity issue, finding that the facts of plaintiff’s

lack of preparedness were undisputed and that it was objectively

reasonable to discipline him. R2-55. On February 16, 1995 the

district court issued an order pursuant to the Court of Appeals

mandate dismissing Deutcsh from the case in his individual

capacity. R2-56.

On February 27, 1995 the defendants filed a second motion

for summary judgment based on the argument that the language

of the Court of Appeals established as undisputed fact that Morro

was unprepared for Court and that therefore no unconstitutional

policy could be proven since it is not unconstitutional to

discipline an employee for violation of reasonable employment

rules. R2-57. On March 23, 1995 the district court denied the

second summary judgment motion and entered a memorandum

opinion that same date. R2-61. The district court cited in its

order that Owens v. Fulton County, 877 F.2d 947 (11th Cir.

1984) and City of St. Louis v. Praprotnik, 485 U.S. 112, 108

S.Ct. 915 (1988), offered “legitimate ways around Monell” .

A second pretrial conference was held on April 5, 1995. A

second pretrial order was entered by the district court on the

same date. R2-63. In the new pretrial order Johnnie Johnson,

Jr. was substituted as defendant in his official capacity as police

chief for the retired Chief Deutcah. R2-63-2. Plaintiff adopted

all of its positions as stated in its complaint. R2-63-2. Defendants

again took the position of denying every material averment in

the complaint. R2-63-2. This denial again went to the plaintiff’s

claim in paragraph 9 of his complaint that Deutcsh was a final

policy maker sufficient to impose liability on the City for his

actions in disciplining plaintiff.

8a

Appendix A

On April 11, 1995 defendants moved the district court for

certification of an interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b). R2-64. The district court granted the certification

by order entered on April 12, 1995. On June 2, 1995 the Court

of Appeals granted permission for the appeal. On July 25, 1995

clerk of the Court of Appeals notified all parties that this second

appeal had been dismissed for failure to prosecute. R2-66 and

R2-67.

The case was called to trial before Judge Acker and a jury

on March 18, 1996. The jury drawn from this case were not

members of the pool officially called to service for the week of

trial beginning March 18, 1996 but were the remainders from

the previous two weeks of service and consisted of eighteen

white venirepersons. R2-80-19. Defendant’s challenged the

venire before selecting from it. R2-88. The district court denied

the challenge to the jury venire as well as denying challenges

to two jurors who indicated they had strong feelings apparently

negative toward the defendants in this case. R2-88.

During the trial defendant’s raised objections to the

admission of evidence which were overruled by the district

court. R3-88. Defendants objected to the admission of a

memorandum submitted by a personnel board hearing officer

on the grounds that its probative value was clearly outweighed

by its potential for prejudice and misieading the jury. The

defendants also attempted to put on direct evidence that the

plaintiff intentionally made himself unavailable to testify in

Judge Carole Smitherman’s municipal courtroom in order to

register a protest of the way she had decided a particular case.

The district court refused to allow this witness to testify. R3-

88. At the close of the plaintiff’s case in chief and at the close

of all the evidence defendants’ counsel made motions for

9a

Appendix A

judgment as a matter of law pursuant to Rule 50 of the F.R.Civ.P.

R3-88- and R3-88- All of these were denied by the district

court. R3-88 and R3-88-.

Defendant and plaintiff submitted requested jury charges.

R2-75 and R2-76. Defendants’ lead counsel withdrew its

requested charge on municipal liability because it was

inconsistent as written with the law which should have been

applied in the case. Counsel instead asked the court to give a

standard charge on municipal liability which the district court

refused to do. R3-88-.

On March 20, 1996 the case was submitted to the jury

after the district court’s instructions. That same day the jury

returned a verdict against the defendants in the amount of

$150,000. R2-77. The district court on March 21, 1996 entered

judgment on the jury verdict. Pursuant to the consent of all

parties Chief Johnnie Johnson, in his official capacity as police

chiei, was dismissed from the action. R2-78.

On March 29, 1996 the City of Birmingham filed a renewed

Rule 50 motion and for alternative relief therein requested a

new trial. R2-80. The motion stated as grounds for relief, inter

alia, that the plaintiff failed to establish that Chief Deutcsh was

a policy maker whose edicts and decisions could impose liability

on the City of Birmingham under Monell, supra, Pembaur v.

City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.

2d. 452 (1986); City of St. Louis v. Praprotnik, 485 U.S. 112,

108 S.Ct. 915, 99 L.Ed. 2d. 107 (1988); Manor Healthcare

Corp. v. Lomelo, 929 F.2d 633 (11th Cir. 1991); Martinez v.

City of Opa-Locka, Florida, 971 F.2d 708 (11th Cir. 1992);

Hill v. Clifton, 74 F.3d 1150, (11th Cir. 1996). Attached to the

motion were appendices with copies of state law, the rules and

10a

Appendix A

regulations of the Jefferson County Personnel Board and local

ordinances. R2-80 (appendices). On April 12, 1996 the district

court denied the renewed Rule 50 motion (R2-80) and filed

that same date a memorandum opinion in support of its ruling.

R2-83. On April 17, 1996 the district court filed an addendum

to its April 12, 1996 opinion. R2-84.

On May 2, 1996 the City of Birmingham filed the instant

appeal of the district court’s denial of its renewed Rule 50 motion

or its alternative requested relief of a new trial to the United

States Court of Appeal for the Eleventh Circuit. R2-86.

STATEMENT OF FACTS

Scott Thomas Morro has been a City of Birmingham Police

officer since 1986 (R3-88-106). From the beginning of his

employment as a policeman he has always been assigned patrol

duties. In 1990 Morro was assigned to the police department’s

South Precinct. He worked the 11:00 p.m. to 7:00 a.m. shift.

Part of his patrol beat included the Kingston Housing Project.

On June 3, 1990 Morro, while patrolling the Kingston area,

encountered a man named Moses Payne. Payne was a black

man of very small stature. At the time of his encounter with

Morro he was 25 years old and four feet and five inches tall.

Morro placed Payne under arrest after he refused the officer’s

orders to stop being disorderly. In attempting to arrest Payne,

Morro first exited his patrol vehicle and informed Payne he

was under arrest. Morro then seized Payne’s wrist which the

arrestee tried to pull away. Although Morro could keep a grip

on Payne he could not completely control him. Morro’s arrest

report noted that Payne struggle with him and attempted to

flee. It also noted that the “officer restrained the def. until cuffs

RAE Ae RE 10

lla

Appendix A

could be placed on him.” (plaintiff’s exhibit 15) The report

also indicated that Morro had to use force to affect the arrest.

Morro’s patrol partner that night was a less experienced

officer named Rodney Hall. During the same encounter Hall

arrested a man named Benjamin Franklin. Both men were able

to arrested by the lone officer listed on the arrest reports. In

writing the two separate arrest reports the officers, Hall and

Morro, cross-referenced the other defendant as an accomplice

in the offense of the other. (Plaintiff’s exhibits 15, and 16).

Both Morro and Hall testified that back-up had to be called

during the arrests. The nature of the back-up was of the highest

priority. The arrests were notable also in the fact that other

citizens moved close to the officers as they attempted to effect

the arrests. Indeed one reason Ben Franklin was arrested was

because he seemed bent on interfering in the arrest of Moses

Payne.

When the case against Moses Payne was called to court he

plead guilty and was punished by the Municipal Court. Ben

Franklin demanded a trial, making it necessary for the prosecutor,

Patricia Burns to issue subpoenas to the witnessing officers.

Since the arrests reports cross-referenced accomplices both Hall

and Morro were subpoenaed to testify.

Prior to the date the Franklin prosecution was to take place

the daughter of Mayor Richard Arrington, Jr., Erica Arrington,

had been arrested in a July 4 celebration. The arresting officer,

Jerry Bahakel, accused Ms. Arrington of several offenses

including inciting a riot. Ms. Arrington accused him of false

arrest and excessive force. Ms. Arrington’s trial took place over

the course of two days, a friday night and a rare Saturday session

12a

Appendix A

of Birmingham Municipal Court. Her trial was presided over

by the Hon. Carole Smitherman, municipal judge. This trial

was widely attended by the press and interested citizens. Among

those attending were a number of South Precinct officers who

were there apparently to show their support for Officer Bahakel.

Among the South Precinct officers attending was Scott Morro.

Morro did not attend the entire trial but sat behind Erica

Arrington from about 30 minutes to an hour before leaving the

trial. He did not return for any later part of the trial either that

first night or the next day.

After the two day trial Judge Smitherman found Erica

Arrington not guilty of all the charges against her. There was

no Sunday session of municipal court and the very next court

docket for Judge Smitherman was that Monday and it included

the Ben Franklin case, in which Morro was a subpoenaed

witness.

On the day of the Franklin trial, Prosecutor Burns sought

to interview Morro in preparation for trial. Morro indicated that

he could not remember anything about the arrest of Ben Franklin.

Moses Payne and Franklin were seated in the municipal court

together. Prosecutor Burns asked Morro to look into the

courtroom to see if he recognized anyone. He indicated that he

could not. After concluding from the information given her by

Morro, that he could be of no assistance in the prosecution,

Burns dismissed Morro. Officer Hall was also subpoenaed and

provided the testimony necessary to gain Franklin’s conviction

in municipal court. |

For some period after the Arrington acquittal Judge

Smitherman noticed that there were increasing instances of

forgetfulness and in attendance among the officers who were

13a

Appendix A

called to testify in her court about arrests they had made. R3-

88-355.

Judge Smitherman also testified that Morro was an officer who

fairly frequently testified in her courtroom and who prior to the

Erica Arrington trial had excellent recall, testifying without notes

and exhibiting excellent memory. R3-88-356. Indeed, a review

of this matter submitted to Morro and his counsel by the City

attorneys showed that being unprepared is highly unusual for

City of Birmingham officers. No officers other than Morro and

Lockhart were ever complained of, investigated or disciplined

for being unprepared for court. Plaintiff’s exhibit No. 13.

Judge Smitherman became so concerned about this

phenomenon that she required one officer Betty Lockhart, to

testify under oath that she could not remember the facts of a

DUI arrest that included an accident and which occurred only a

short time before the officer was called upon to testify. Later on

Judge Smitherman complained to the police department about

the drop in attendance and participation among officers

subpoenaed to her court. She also gave statements to the internal

affairs division of the department regarding the situation.

The internal division assigned Lt. Lee Ann Self to investigate

the complaints from the municipal court. She interviewed a

number of persons including Morro, Judge Smitherman,

Prosecutor Burns and Rodney Hall. After her investigation,

which included probing into the question of whether the drop

off in participation was an intentional response or protest of

Judge Smitherman’s ruling in Erica Arrington’s favor, she

recommended that Morro be disciplined for a violation of

departmental rules. Morro was not charged with anything but

being unprepared for court. Morro’s lack of preparation violated

existing rules of the police department.

l4a

Appendix A

A hearing was held for Morro on the charges internal affairs

had recommended against him. It was presided over by Deutcsh

and participated in by his deputy chiefs. According to Chief

Johnnie Johnson, who was then a deputy chief, the facts and

issues at the hearing were discussed among the officials there

and they made recommendations to Chief Deutcsh. Johnson

testified that he was in agreement with the conclusion reached

by internal affairs that Morro was unprepared for court. R3-88-

424.

Johnson also provided testimony on the appeal process in

place for disciplinary actions involving City of Birmingham

police officers and other employees. Any decision on discipline

made by a department head is appealable to the Mayor of the

City of Birmingham. If the discipline imposed exceeds a five

day suspension the employee is entitled to appeal the case to

the Jefferson County Personnel Board. Johnson testified that

the Personnel Board can and often does countermand the

decisions made by the City of Birmingham police chief. R3-

88-419.

After the. hearing at the City Chief Deutcsh imposed

discipline of a 30 day suspension on Morro. Morro exercised

his right to appeal the decision of Chief Deutcsh. This right of

appeal of the decision of Chief Deutcah was established by the

law of the State of Alabama and by the rules and regulations of

the Jefferson County Personnel Board. The Personnel Board

assigned a hearing officer, attorney Ann Arnold, to hear the

case against Morro. After hearing all the evidence she

recommended to the board that the discipline against Morro be

rescinded, apparently concluding that he was not unprepared

for court as charged by the internal affairs division. Her

conclusions from the evidence were made in a report to the

eee Pe a

15a

Appendix A

Personnel Board which was admitted into evidence over the

City’s objection. Plaintiff’s exhibit No. 10. Upon her

recommendation the Personnel Board took the action of

rescinding the discipline that had been decided upon by Chief

Deutcsh and Morro was reinstated with backpay for the time he

had been suspended.

After his reinstatement, Morro returned to work in the South

Precinct. He was under the command of Lt. Self who had left

internal affairs to become a shift commander at South Precinct.

Morro testified at trial that he continued to be harassed. His

only proof of this however was his subjective interpretations of

the assignments and instructions he was given by superiors with

whom he disagreed with.

Prior to the Erica Arrington and Franklin trials there had

been accusations against the Chief of Police, Arthur Deutcah,

that he had tampered with or ordered the alteration of Erica

Arrington’s arrest records. In response to these accusations Chief

Deutcsh on July 9, 1990 issued a memorandum explaining his

version of the facts to members of the department. Morro was

permitted to enter this memorandum into evidence as plaintiff’s

exhibit one over the objection of the defendants. Plaintiff’s

Exhibit No. 1.

During the trial of this case, a witness notified Lt. Self that

he had heard Morro state that he would not testify in Judge

Smitherman’s courtroom because she did not believe the

testimony of police officers. This statement was made

contemporaneously with the judge’s acquittal of Erica Arrington

and the subsequent drop off in attendance of her court by

subpoenaed police officers. When counsel for the City found

out about the witness they notified the Court and counsel for

l6a

Appendix A

Morro. The City sought to introduce the testimony of this

witness, officer John Crane, but were denied the opportunity to

do so by the Court. R3-88-379.

SUMMARY OF ARGUMENT

Morro failed to adduce evidence in the district court that

the deprivation he claimed the City was liable for was caused

or occurred pursuant to a municipal policy as required for the

imposition of municipal liability by Monell v. Departmen: of

Social Services, 436 U.S. 658 (1978); Wideman v. Shallowford

Community Hospital, Inc., 826 F.2d 1030 (11th Cir. 1987). In

particular, the evidence clearly, precisely and without

controversy showed that former Birmingham Police Chief Arthur

Deutcsh was not and could not, as a matter of law, be found to

be a policy maker for the City of Birmingham on disciplinary

matters under the holdings of the United States Supreme Court,

the United States Court of Appeals for the Eleventh Circuit and

the United States District Court for the Northern District of

Alabama and the law of the State of Alabama which those

holdings aforementioned require the Court to look to in

determining who is a policy maker (including any local

ordinances or regulations which are applicable. Pembaur v. City

of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452

(1986); City of St. Louis v. Praprotnik, 485 U.S. 112, 108

S.Ct. 915, 99 L.Ed.2d 107 (1988); Manor Healthcare Corp. v.

Lomelo, 929 F.2d 633 (11th Cir. 1991); Martinez v. City of

Opa-Locka, Florida, 971 F.2d 708 (11th Cir. 1992); Hill v.

Clifton, 74 F.3d 1150. The evidence in this case clearly, precisely

and without controversy showed that the personnel disciplinary

decisions of the Chief of the Birmingham Police Department

(both Chief Deutcsh and Chief Johnson) were subject to review

by the Jefferson County Personnel Board and in some cases by

the Mayor of the City of Birmingham.

17a

Appendix A

Morro adduced no substantial evidence from which a

reasonable jury could find that any violation or deprivation of

his First Amendment rights occurred. If Chief Deutcsh punished

only those officers who have been clearly demonstrated to have

broken departmental rules and regulations for which they were

clearly subject to discipline and to have punished no other

officers there is no support for an inference by a reasonable

jury that Deutcsh punished Morro for his association with or

support of another officer. Since Morro was clearly unprepared

and such lack of preparation is a violation of rules he cannot

state that he was being punished for associating with or

supporting another officer. This is particularly compelling given

that no other officers who attended the trial were punished.

And the only ones punished were those who had violated trial

preparation rules. The only reasonable inference to be drawn

from this scenario is that officers who violate court preparation

rules will be punished. There was no evidence available to

support an inference that officers will be punished for violating

court preparation rules only if they support persons unpopular

with the administration. This is so in part because no one else

was ever accused of failing to prepared for courtroom

participation in a case for which they made the arrest and were

under subpoena.

The system employed by the Northern District of Alabama

for empaneling juries violates the Jury Selection and Service

Act, 28 U.S.C. § 1861, et seq. by causing the systematic

underrepresentation of African-Americans in its venires. The

selection of the jury venire in the instant case from the remaining

available jurors on the March 4, 1996 Jury List rather than the

larger (and usual) March 18, 1996 Jury List operated to cause

absolutely no representation of African-Americans on the venire

from which the Jury in the instant case was selected.

18a

Appendix A

The City was substantially prejudiced by the district court’s

ruling admitting into evidence the report of the hearing officer.

Although arguably relevant, the report’s admission in its entirety

resulted in unfair prejudice, confusion of issues (the issue was

what was reasonable for Deutcsh, not what Ann Arnold thought

about the evidence when she heard it) and misleading the jury

(who may have thought that Ann Arnold’s findings conclusively

showed that Deutcsh could have had no reasonable basis and

proper motive in disciplining the plaintiff). Federal Rules of

Evidence, Rule 403.

The City was substantially and unfairly prejudiced by the

failure of the district court to instruct the Jury on the basis of

municipal liability under 42 U.S.C. § 1983. The district court’s

instructions to the Jury seem to indicate that the basis of

municipal liability is the legal doctrine of respondeat superior,

this doctrine cannot be the basis of municipal liability in a

§ 1983 case. Jett v. Dallas Independent School District, 491

U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).

ARGUMENT

I. WHETHER THE DISCIPLINARY DECISIONS OF A

CITY OF BIRMINGHAM POLICE CHIEF ARE FINAL

DECISIONS WHICH MAY SUBJECT THE CITY TO

LIABILITY UNDER MONELL v. DEPARTMENT OF

SOCIAL SERVICES

Plaintiff failed to adduce evidence that the deprivation he

claimed the City was liable for was caused or occurred pursuant

to a municipal policy as required for the imposition of municipal

liability by Monell v. Department of Social Services, 436 U.S.

658 (1978); Sideman v. Shallowford Community Hospital, Inc.,

19a

Appendix A

826 F.2d 1030 (11th Cir. 1987). In particular, the evidence

clearly, precisely and without controversy showed that former

Birmingham Police Chief Arthur Deutcah was not and could

not, as a matter of law, be found to be a policy maker for the

City of Birmingham on disciplinary matters under the holdings

of the United States Supreme Court, the United States Court of

Appeals for the Eleventh Circuit and the United States District

Court for the Northern District of Alabama and the law of the

State of Alabama which those holdings aforementioned require

the Court to look to in determining who is a policy maker

(including any local ordinances or regulations which are

applicable. Pembaur v. City of Cincinnati, 475 U.S. 469, 106

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

Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107

(1988); Manor Healthcare Corp. v. Lomelo, 929 F.2d 633 (11th

Cir. 1991); Martinez v. City of Opa-Locka, Florida, 971 F.2d

708 (11th Cir. 1992); Hill v. Clifton, 74 F.3d 1150, (11th Cir.

1996); See Appendices containing Act No.248, H.580, of the

Alabama Legislature of 1945 p. 376 as amended (the Jefferson

County Personnel Board Enabling Act), The Jefferson County

Personnel Board Rules and Regulations, Act No. 452 of the

Alabama Legislature of 1955, as amended (excerpts from the

Mayor-Council Act- establishing the form of government

adopted by the citizens of the City of Birmingham),

Supplemental Personnel Rules and regulations adopted by the

City of Birmingham.

The evidence in the district court clearly, precisely and

without controversy showed that the personnel disciplinary

decisions of the Chief of the Birmingham Police Department

(both Chief Deutcsh and Chief Johnson) were subject to review

by the Jefferson County Personnel Board and in some cases by

the Mayor of the City of Birmingham.

ae

20a

Appendix A

In Monell v. Department of Social Services, supra, the

United States Supreme court held that section 1983 liability

may not be based upon respondeat superior theory alone. This

holding was reaffirmed in Jett v. Dallas Independent School

District, 491 U.S. 701, 736 (1989). These Court rulings hold

that municipalities are liable only when the alleged constitutional

violations result from the official policies and well-settled

customs of the municipalities. These holdings are in part based

on the notion that municipal governments can act only through

natural persons. The governments should only be held

responsible when, and only when, their official policies caused

their employees to violate the plaintiff’s constitutional rights.

The vicarious liability implicit in the respondeat superior

doctrine is inconsistent with the causation requirement implicit

in the language and legislative history of 42 U.S.C. section

1983. Thus the statement often quoted from Monell:

[I]t is when execution of a government’s policy or

custom, whether made by its lawmakers or by those

whose edict or acts may fairly be said to represent

official policy, inflicts the injury that the government

as an entity is responsible under Section 1983.

Monell, 436 U.S. at 694. (emphasis in original)

Since the decision in Monell, the Supreme court has ruled

in a several cases that municipal liability under § 1983 can arise

from a single decision taken by municipal officers responsible

for setting policy in a precise area of the government’s activities.

See Praprotnik, 485 U.S. at 123; Pembaur, 475 U.S. at 480

(1986). In Pembaur the Court found municipal liability for the

violation of the plaintiff’s Fourth Amendment rights where

deputy sheriffs unlawfully entered the plaintiff’s office on the

2la

Appendix A

express instructions of the county prosecutor. The Eleventh

Circuit analyzed Pembaur’s impact in the municipal or

governmental liability area in section 1983 litigation in Manor

Healthcare Corp. v. Lomelo, 929 F.2d 633 (11th Cir. 1991),

In Pembaur, the Court articulated the following

three-part test for determining when a single act of a

municipal officer subjects the municipality to liability

under section 1983: (1) acts which the municipality

officially sanctioned or ordered; (2) acts of municipal

officers with final policy-making authority as

defined by state law; and (3) actions taken pursuant

to a policy adopted by the official or officials

responsible under state law for making policy in that

area. Pembaur, 475 U.S. at 480-3 & n.12, 106 S.Ct.

at 1298-1300 & n. 12. The Court also clarified the

fact that a municipality is not liable merely because

the official who inflicted the constitutional injury

had the final authority to act on its behalf. Thus the

Court states:

[W]e hasten to emphasize that not every decision

by municipal officers automatically subjects the

municipality to section 1983 liability. Municipal

liability attaches only where the decision maker

possesses final authority to establish municipal

policy with respect to the action ordered. The fact

that a particular official- even a policy making official

— has discretion in the exercise of particular

functions does not, without more, give rise to

municipal liability based on an exercise of that

discretion. See, e.g. Oklahoma v. Tuttle, 471 U.S.

[808] at 822-24 105 S.Ct, [2427] at 2435-2436 [85

22a

Appendix A

L.Ed.2d 791 (1985)]. The official must also be

responsible for establishing final government policy —

respecting such activity before the municipality can

be held liable.

Pembaur, 475 U.S. at 481-82, 106 S.Ct. at 1299-

1300. See also City of St. Louis v. Praprotnik, 485

U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988);

Jett v. Dallas Independent School Dist. 491 U.S.

701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989).

(emphasis added).

Manor Healthcare, 929 F.2d at 637.

In Praprotnik, the Court further clarified when a decision

on a single occasion may be enough to establish an

unconstitutional municipal policy. There the Court held that

the municipality could not be held liable for the unconstitutional

transfer of a city employee where the officials who arranged for

the transfer did not possess final policy making authority with

respect to employment decisions and had not been delegated

such authority. The Eleventh Circuit in following Praprotnik’s

conclusions in the case of Mandel v. Doe, 888 F.2d 783 (11th

Cir. 1989) articulated the former’s conclusions as follows:

The Court concluded that the mere delegation of

authority to a subordinate to exercise discretion is

not sufficient to give the subordinate policy making

authority. Rather, the delegation must be such that

the subordinate’s discretionary decisions are not

constrained by official policies and are not subject

to review. Praprotnik, 485 U.S. at 125-28 (Emphasis

added).

Mandel, 888 F.2d at 792.

i

23a

Appendix A

The Praprotnik plurality stated that a policy maker’s review of

a subordinate’s decisions does not reflect municipal policy

maker’s review of a subordinate’s decisions does not reflect

municipal policy and thereby create municipal liability.

Simply going along with discretionary decisions

made by one’s subordinates .. . is not a delegation

to them of the authority to make police.

* = *

It would be a different matter if a particular decision

by a subordinate was cast in the form of a policy

statement and expressly approved by the supervising

policy maker. It would also be a different matter if a

series of decisions by a subordinate official

manifested a “custom or usage” of which the

supervisor must have been aware. In both those

cases, the supervisor could realistically be deemed

to have adopted a policy that happened to have been

formulated or initiated by a lower-ranking official.

But the failure to investigate the basis of a

subordinate’s discretionary decisions does not

amount to a delegation of policymaking

authority .. .

Praprotnik 485 U.S. at 130.

The Praprotnik plurality also reached the important

conclusion that whether a particular official has “final

| policymaking authority” is a question of state law. Praprotnik,

485 U.S. at 124.

24a

Appendix A

“Authority to make municipal policy may be granted

directly by a legislative enactment or may be

delegated by an official who possesses such

authority, and of course, whether an official had final

policymaking authority is a question of state law.

(Emphasis added).

Id. at 124 (quoting Pembaur, 475 U.S. at 483).

In Jett v. Dallas Independent School District, 491 U. S. 701

(1989), a majority of the Supreme Court adopted the Praprotnik

plurality’s view that identification of the official or final policy

maker is a question of state law.

[T]he identification of those officials whose

decisions represent the official policy of the local

governmental unit is itself a legal question to be

resolved by the trial judge before the case is

submitted to the jury. Reviewing the relevant legal

materials, including state and local positive law, as

well “ ‘custom or usage’ having the force of law,”

Praprotnik, supra, at 124 n. 1, 108 S. Ct., at 924,

n. 1, the trial judge must identify those officials, or

governmental bodies who speak with final

policymaking authority for the local governmental

actor concerning the action alleged to have caused

the particular constitutional or statutory violation at

issue. Once those officials who have the power to

make official policy on a particular issue have been

identified, it is for the jury to determine whether

their decisions have cause the deprivation of rights

at issue by policies which affirmatively command

that it occur, see Monell, 436 U. S., at 661, n. 2, 98

An

25a

Appendix A

S. Ct., at 2020, n. 2, or by acquiescence in a

longstanding practice or custom which constitutes

the “standard operating procedure” of the local

governmental entity. See Pembaur, supra, at 485-

487, 106 S. Ct., at 1301-1302 WHITE, J.

concurring).

Jett, 491 U. S. at 737.

In Manor Health, the Eleventh Circuit held a city could

not be held liable under § 1983 for the mayor’s alleged bribery

and extortion in connection with a zoning matter, as the mayor

was not the ultimate policymaking authority regarding zoning

issues, and the city neither adopted nor ratified his bribery and

extortion. Manor Health, 929 F. 2d at 636-38. The court

concluded that under city charter, granting the mayor the power

to oversee and administer all departments and agencies of the

city, including the planning and zoning departments, the city

council was granted the power to override the mayor’s veto

with regard to zoning matters. supra. at 637. Therefore, the

mayor was not the ultimate policymaking authority regarding

zoning issues. The court further concluded that the city did not

develop a custom or practice which allowed the mayor to

function without any supervision or review regarding zoning.

The City contends that there was no municipal policy or

custom which deprived plaintiff of any constitutional right. The

City contends that pursuant to Rules and Regulations — The

Personnel Board of Jefferson County (“Rules and Regulations’)

(appendix) the Personnel Board, not the Mayor or the police

chief, has final policy making authority with regard to adverse

personnel actions taken against City employees. Nor did Morro

demonstrate a custom or practice of the City whereby the City

has taken adverse employment actions against persons similarly

situated to him.

26a

Appendix A

It is undisputed that the Rules and Regulations provide an

extensive review and appeals procedure for disciplinary actions

taken against “classified employees.” Police officers of the City

of Birmingham are in the “classified service” and are, therefore,

covered by the Rules and Regulations. (See rules 1.10(a),(b)).

Rule 6 provides:

6.1 DISCIPLINARY POLICY ... A permanent

employee may be dismissed, demoted, or suspended

for cause or for any other reason deemed to be in

the best interest of the public service and shall have

the right of appeal as set forth in the following

provisions.

6.5 APPEAL An employee with permanent status

shall have the right appeal disciplinary action of

dismissal, demotion, or suspension .. .

6.6 HEARING. The board shall order a public

hearing of such charges. The hearing shall be for

the purpose of determining whether or not the

employee, by reason of his act or acts as charged

and his record of service, merits retention in the

service or should be removed therefrom or otherwise

disciplined . . . The hearing may be before the Board

or a Hearing Officer appointed by the Board... . If

the Personnel Board hears such charges, it shall make

its own opinion and decision.

6.8 DECISION ... The board may rescind, modify

or increase the penalty imposed by the appointing

authority as warranted by the facts adduced at the

hearing.

27a

Appendix A

6.12 JUDICIAL REVIEW. The decision of the

Board based upon all proceedings before the Board

shall be final, subject to appeal by either party to

the Circuit Court to review questions of law and the

question of whether or not the decision or order of

the Board is supported a substantial and legal

evidence.

Rules and Regulations. The City also points the court to Rule

10.1 of the Rules and Regulations which the City contends sets

forth the Board’s policy with respect to employment with the

City.

10.1 ACTIVITIES PROHIBITED. No person shall

be appointed or promoted to, or dismissed from any

position, or in any way favored or discriminated

against with respect to employment because of his

sex, political or religious opinions or affiliations, or

his race.

The evidence suggests that Chief Deutcah was the official who

made the initial decisions as to dismissal, demotion and

suspension of police officers. The disciplined police officer may

then appeal Chief Deutcah’s decision first to Mayor Arrington,

and then to the Personnel Board pursuant to Rule 6. (City

Supplemental Personnel Rules, appendix). The facts are

undisputed that plaintiff did appeal his suspension or termination

to the Personnel Board.

There is no support for the district court’s conclusion that

Deutcsh is the final policy maker for the City with regard to

police department personnel and disciplinary decisions. A proper

consideration of state law and the applicable Rules and

28a

Appendix A

Regulations, as well as the custom and practices of the City,

lead to the conclusion that the Jefferson County Personnel Board

is the final policymaker with regard to these decisions. First of

all, Rule 6 of the Rules and Regulations clearly states that

decisions of Deutcsh are reviewable by the Board. Praprotnik,

Worsham, and Manor Health all held that a city official is not

the final policymaker when that official’s decisions are subject

to review procedures. See also Payung v. Williamson, 747 F.

Supp. 705, 708-09 (M.D.Ga. 1990) (Mayor was not the final

policymaker for city in connection with personnel matters

because all of mayor’s employment decisions were subject to

review by entire city council. As opposed to Worsham, Manor

Health and Payung in which the City Council reviewed

personnel decision, Praprotnik involved a reviewing body most

analogous to the Jefferson County personnel Board, the

reviewing body in Praprotnik was an independent, non-internal

Civil Service Commission empowered to review and correct

improper personnel actions. The Commission was created

pursuant to the St. Louis City Charter. Praprotnik, 485 U. S. at

130. The Supreme Court in Jett stated that the final policymaker

may be identified in either state or local law. Jett, 491 U. S. at

737. There is no evidence in this case proving that the Board’s

review is ineffective and meaningless. In fact the Personnel

Board reversed Deutcsh’s decision and reinstated the plaintiff

with back pay for the period he was suspended.

Il. WHETHER THERE WAS INSUFFICIENT PROOF

THAT PLAINTIFF SUFFERED A CONSTITUTIONAL

DEPRIVATION.

Obviously, there is a clearly established constitutional right

to attend a public trial. An off-duty police officer may attend

such, on his personal time when his attendance does not conflict

eee

ee ee

raat na Na a ie ar te sie Sa.

29a

Appendix A

with his duties. This was also shown to be the City’s policy.

Morro did not prove that the disciplinary action taken against

him was in retaliation for his exercise of his First Amendment

right to attend a public trial. Morro did not prove that his

exercise of this protected right was a motivating factor at all.

Morro alleged that his discipline for his admitted unpreparedness

was a “pretext”. Morro’s proof consisted of the chronology of

events, from the arrest of the Mayor’s daughter, his short-lasting

attendance at her trial, his then admittedly (albeit, grudgingly)

being unprepared for the trial of one (1) of the two earlier-

arrested defendants, the investigation of his conduct of being

unprepared and his subsequent suspension. Morro proved only

that he attended a public trial and he was disciplined thereafter.

However, the City proved that the discipline came following

an investigation of Morro’s being unprepared for a later trial

before the same judge who acquitted the Mayor’s daughter. That

decision was not well-received by Morro.

Morro’s proof is merely his subjective opinion that the

discipline was pretext. Morro offered, as direct evidence of proof

of retaliation, a letter the City’s counsel submitted relating to a

“poll” of Birmingham Police Department commands as to

whether anyone else had been disciplined for “unpreparedness”.

Plaintiff’s Exhibit No. 1. This exhibit does not offer any proof

of retaliation or proof of a pretext for same. Morro’s opinion

also does not provide any help in determining the issue, let

alone evidence. The City offered consistent and substantial legal

evidence that the discipline was due to Morro’s memory

problem, not retaliation.

Morro’s suspension occurred following an investigation of

a similar, but later incident with the same judge, not involving

Morro. Officer Betty Lockhart exhibited a similar unexplained

30a

Appendix A

“memory loss” during another trial before Judge Smitherman.

Morro’s name came up as a possible prior case. During the

internal investigation of Morro, it was proved to the reasonable

satisfaction of the investigator and Deutcsh that Morro was at

least unprepared for court. Indeed, the City’s evidence possibly

showed that Morro was retaliating against the City Judge, not

Deutcsh or the City against him. The issue being in doubt,

Morro was not charged nor disciplined for it.

Morro failed to prove a “causal connection” that his

attendance at the trial resulted in his suspension. All that Morro

proved was that his suspension occurred after the date attended

the trial; that he was unprepared to assist in a different trial; and

that one (1) other Police Officer had been disciplined for similar

conduct. The “direct evidence” of retaliation comes only from

Morro’s strained interpretation of counsel’s letter to the trial

judge. No others had ever been complained-of, so no others

were ever investigated or disciplined. This does not establish

proof of a constitutional violation against Morro. Morro offered

no proof that the City or Deutcsh unlawfully considered his

attendance at the trial of the Mayor’s daughter.

Morro does not have a constitutional right to avoid a

properly-motivated investigation for being unprepared to

perform his job. Burns v. Reed, 111 S.Ct. 1934 (1991). There

was no evidence that the investigation commenced due to

Morro’s attendance at the trial. There was also no evidence that

any later shift-assignment, supervision, evaluations or other

personnel actions (including referring plaintiff to a psychiatrist)

was commenced or motivated due to Morro’s attendance at the

trial, or for any other unlawful reason. Morro does not have a

constitutional right to avoid discipline for being unprepared to

perform his job. Part of Morro’s duties include recalling and

3la

Appendix A

| truthfully testifying to the details of an arrest incident. Such a

y constitutional right does not exist, nor is it so “clearly

established” that the defendants could be found liable were they

to be in violation.

A government official may act within the realm of his

discretionary authority. Rich v. Dollar, 841 F.2d 1558 (11th

Cir. 1988). In granting Deutcsh qualified immunity for his

“official” acts, the 11th Circuit found that Deutcsh had the

discretionary authority to discipline Morro for being

“unprepared for court”. This Court ruled that as the evidence

arguably showed Morro was in fact unprepared, Deutcsh was

“objectively reasonable” in deciding to discipline him. Morro

v. City, et al. (docket number 93-6738, 11th Cir., 5/15/95

opinion). Morro appears to believe that the fact that the

Personnel Board disagreed with the City that his conduct merited

a 30-day suspension is proof of the existence of constitutional

violation. Morro may wish that is the state of the law, but it is

not. If the law is unclear at the time the cause of action arose or

if a reasonable officer could have believed his actions were lawful

in light of clearly established law and the information he

possessed, he is not liable. McDaniel v. Woodward, 886 F.2d

311 (11th Cir. 1989); James v. City of Douglas, Ga., 941 F.2d

1539 (11th Cir. 1991). There is no “bright line standard” to

evaluate when discipline violates clearly established

constitutional rights. Dartland v. Metropolitan Dade County,

866 F.2d 1321 (11th Cir. 1989). If Morro’s position is upheld,

then one may avoid deserved-discipline merely by exercising

some constitutional right prior to the date of the disciplinary

action. Supervisors will be incapable of issuing discipline, or

conducting investigations of rules infractions. The law does

: not support such a conclusion. Supervisors merely have to be

reasonable, not right in their personnel decisions.

32a

Appendix A

lil. ADMITTING THE PERSONNEL BOARD HEARING

OFFICER’S REPORT INTO EVIDENCE WAS

REVERSIBLE ERROR.

The District Judge admitted, over defendants’ objections,

the Report of the Personnel Board Hearing Officer. Plaintiff’s

exhibit number 10. This report contains-the reasons the Hearing

Officer found to support her recommendation to rescind Morro’s

30-day disciplinary suspension. The report is merely a

recommendation and the Personnel Board is not bound by this

recommendation, nor the reasons given supporting such. In this

case, the Personnel Board did adopt the recommendation to

rescind Morro’s suspension. However, there is no proof that it

also adopted the Hearing Officer’s rationale. Assuming

arguendo, as there was no evidence that such was the case, the

Personnel Board accepted the Hearing Officer’s rationale, still

nothing relevant is proven thereby. All that is proven is that

both the Hearing Officer and Personnel Board disagreed with

the defendants’ decision to discipline Morro. Placing the report

into evidence allows the jury to decide by speculation not

evidence, that an unlawful reason existed for the disciplinary

action and thus generated the rescission of the suspension.

A supervisor need not be completely right. A supervisor is

even allowed to be completely wrong. For purposes of this

lawsuit however, it must be proven further that the supervisor’s

wrong decision was based on a violation of Morro’s “clearly

established statutory or constitutional rights of which a

reasonable person would have known”. Anderson v. Creighton,

483 U.S. 635 (1987); Courson v. McMillian, 939 F.2d 1479

(11th Cir. 1991). This exhibit does not prove, nor does it tend

to prove, anything other than that the Hearing Officer and

Personnel Board disagreed with Deutcsh’s decision and

33a

Appendix A

overturned it. There is no ruling that they found Deutcsh

motivated by an unconstitutional reason. Admitting this exhibit

into evidence allows the jury to unfairly speculate that the

Personnel Board’s disagreement with Deutcsh’s decision to

discipline equates with such proof.

IV. WHETHER THE DISTRICT COURT ERRED

REVERSIBLY IN REFUSING CITY’S REQUESTED

INSTRUCTION ON § 1983 MUNICIPAL LIABILITY

Jury instructions are intended to give jurors an

understanding of the law so that they can properly discharge

their duty as finders of fact.

In this the City objected to the jury instructions given by

the court on record before the jury retired, Pursuant to Federal

Rules of Civil Procedure Rule 51, stating that the court failed

to give a general 1983 liability standard for municipalities as a

result of a policy and that the constitutional deprivation has to

be caused by the policy and that the policy has to be set forth

by a policymaker.

In Praprotnik v. St. Louis, 108 S.Ct. 915 (1988), it is stated

that the Civil Service Commission had final decision making

authority regarding employee termination and transfers, while

the agency heads at most were entrusted with the authority for

making discretionary personnel decisions in their departments.

In this case Justice O’Connor stated that “a federal court would

not be justified in assuming that municipal policymaking

authority lies somewhere other than where the applicable law

purports to put it. And certainly there can be no justification

for giving a jury the discretion to determine which officials are

high enough in the government that their actions can be said to

represent a decision of the government itself.”

34a

Appendix A

In Pembaur v. Cincinnati, 475 U.S. 469 (1986), it is stressed

that not every decision by municipal officers subjects

municipalities to § 1983 liability. Rather municipal liability

attaches only where the decisionmaker posses final authority to

establish municipal policy with respect to the action ordered.

Mere authority to exercise discretion is not enough.

Monell v. Department of Social Services, 436 U.S. 658

(1978), states that once those officials who have the power to

make official policy on a particular issue have been identified,

it is for the jury to determine whether their decisions have cause

the deprivation of rights at issue by policies which affirmatively

command that it occur.

In Federal Jury Practice and Instructions Vol.3 §103.11, it

gives an example of instructions on a liability standard for

municipalities which states as follows:

Plaintiff claims that the city of , a

municipality, is liable to him for the constitutional

deprivation that he alleges. You are instructed that

the city of ____ may be liable where you find that

plaintiff has been deprived of his constitutional rights

and such deprivation was done pursuant to a

governmental custom, policy, ordinance, regulation

or decision. When the plaintiff is injured as a result

of a government’s policy, custom, regulation or

decision, whether made by its lawmakers or by those

officials whose edicts or acts may fairly be said to

represent official policy, the city itself is responsible

for the injury that it caused.

A failure to give explicit instructions to the jury regarding

municipal liability and constitutional deprivation deprives the

35a

Appendix A

jury of their duty as finders of fact. It is clear that there was no

municipal policy or custom which deprived plaintiff of any

constitutional right. Pursuant to the Rules and Regulations of

the Jefferson County Personnel Board final policymaking

authority with regard to adverse personnel actions taken against

city employees are exclusively the decisions of the Jefferson

County Personnel Board and not the Mayor nor the Police Chief.

V. WHETHER OR NOT SELECTION OF VENIRE

FROM A HOLDOVER JURY POOL DISCRIMINATES

OR VIOLATES THE EQUAL PROTECTION RIGHTS OF

THE DEFENDANTS.

In Jury selection the controlling case is Batson v. Kentucky,

106 S.Ct 1712 (1986), and its progeny. Racial discrimination

in selection of the venire violates a defendant's right to equal

protection because it denies him the protection that a trial jury

intended to secure. In this case the court allowed the venire to

consist of whites only selected from a jury wheel empaneled on

March 4, 1996, which had served its two week term as jurors,

and a new pool of jurors empaneled on March 18, 1996 was

available to select a venire from.

The City, as a defendant, has the right to be tried by a jury

whose members are selected pursuant to non discriminatory

criteria. Martin v. Texas, 200 U.S. 316, 321, 26 S.Ct. 338,

339, 50 L.Ed. 497 (1906). The criteria employed by the court

in itself is facially nondiscriminatory, however, the deviation

from the criteria allowing a holdover venire when a fresh pool

of jurors is available, and the holdover venire lacked the racial

diversity of the community, is suspect. The City concedes that

statically it is possible for it to receive an all white venire. The

probability of receiving an all white petit jury is exponentially

36a

Appendix A

increased when the pool has undergone several petit jury

selections and the African-American representation has

diminished due to their selection for petit juries. There can be

no representation without representatives.

EQUAL PROTECTION

To establish an equal protection violation in the jury

selection context, a defendant must show:

(1) That he or she is a member of a group capable of being

singled out for discriminatory treatment.

(2) That members of this group were substantially under-

represented on the venire.

(3) That the venire was selected under a practice providing an

opportunity for discrimination. Cunningham v. Zant, 928 F.2d

1906 (11th Cir. 1991). :

Although the prima facie case for an equal protection claim

resembles the elements of a fair cross section claim, the purpose

of an equal protection claim is to determine whether the disparity

in the jury venire is the result of a discriminatory purpose.

Whereas the inquiry in a fair cross section claim focuses on the

representativeness of the jury venire, the focus of an equal

been intentionally denied the opportunity to serve on a jury.

According to the 1990 U.S. Census Data the defendant,

“The City”, has a total population of 265,968. Out of the total

population, 165,277 (63%) are African-American, 95,655

(36%) are white, and 2,036 (1%) are of other race. Whether at

————ose Es a —

37a

Appendix A

common law or under the statutory law of jury selection it is

agreeded that juries are to be drawn form a cross section of the

community. The term “community” was defined in U.S. v.

Grisham, 63 F.3d 1074 (11th Cir. 1995) in which is expounded

that neither the language of the vicinage provision nor is

legislative history suggest the geographical area from which

the jury is summoned must be smaller than the judicial district

created by Congress. Accordingly, the district court did not err

in concluding that, in this case, the relevant statistical community

was the Northern District rather that the Southern Division.

Mapping the language onto the Northern District it is proper to

say that the Jury Pool is the Northern District. With the majority

of the City’s citizens being African-American it is reasonable

for the court to conclude that the City is predominately A frican-

American, is a member of a group capable of being singled out

for discriminatory treatment.

The City racial makeup was substantially underrepresented

in the venire. The relevant statistical community is the Northern

District. The Northern district is divided into seven Statutory

divisions. 28 U.S.C. § 81(a). Pursuant to the plans, which were

adopted by all of the judges of the United Stated District Court

for the Northern District and approved by a panel of the judicial

council of the United States Court of Appeals for the Eleventh

Circuit, the district courts selects juries on a district-wide basis,

as opposed to a division-wide basis. The percentage of

percentuge of population of Northern district eligible for jury

service that is African-American is about 18%. The percentage

of African-Americans on the venire was 0%. If the absolute

disparity between the two percentages is 10 percent or less, the

second element is not satisfied. United States v. Rodriguez, 776

F.2d 1509, (11th Cir. 1985). In the instant case the difference is

approximately 18 percent which far exceeded the 10 percent

38a

Appendix A

minimal set out in Rodriguez. The substantial

underrepresentation on the venire alone is probable through

Statistical calculation but when coupled with the problem

inherent in using a holdover venire amounts to stacking the

deck against the City assuring that African-American

participation on venire is minimal at best violated Equal

Protection under the Fourteenth Amendment. Conclusively, there

can be no representation when there are no representatives.

The final element that must be proved whether the venire

was selected under a practice providing an opportunity for

discrimination. The venire was empaneled on March 4, 1996.

The defendant trial started on March 18, 1996, at which time a

fresh panel of jurors was available to select from. The venire

use had been available for previous trials over its two week

tenure. Several petit jury were selected from the venire

diminishing the representation of African-Americans on the

venire. When the holdover venire reached the defendant trial

the African-American representation was zero. No African-

Americans were on the venire. The practice of discretionally

using “holdover” venire when a fresh pool is available provides

an opportunity for discrimination. A court knowingly using a

holdover venire, knowing that the African-American

representation was likely diminished, knew or should have

known that its practice provided an opportunity for

discrimination.

The City’s motion to strike the venire should have been

granted. The Equal protection Clause of the Fourteenth

Amendment focuses on whether members of a discrete group

have been intentionally denied the opportunity to serve on a

jury. Using a holdover venire which is not composed of members

of a group have been singled out for discriminatory treatment,

39a

Appendix A

that members of the group were substantially underrepresented

and the venire was selected under a practice providing an

opportunity for discriminating make out a prima facie case and

establishes an Equal Protection violation.

CONCLUSION

Because the district court should have found that the

decision of Chief Deutcsh in disciplining Morro was not a final

decision of the City of Birmingham and under the law of the

State of Alabama was subject to meaningful review on appeal

to the Jefferson County Personnel Board, thereby affording no

basis for the imposition of municipal liability under Monell v.

Department of Social Services, its judgment is due to be reversed

and the district court ordered to enter judgment in favor of the

City of Birmingham. The City is alternatively entitled to

judgment because Morro failed to establish by substantial

evidence any constitutional injury or deprivation for which he

was entitled to relief.

Alternatively, the City of Birmingham is entitled to a new

trial because of prejudicial errors of the district court in admitting

evidence which was irrelevant, confusing and misleading. The

City is alternatively entitled to a new trial because of prejudicial

error of the district court in not allowing the testimony of a

witness who would have testified that Morro intentionally

avoided testimony in the municipal court.

Furthermore the City is alternatively entitled to a new trial

because of a violation of equal protection in the jury selection

process as well as the failure of the district court to remove

from the jury two jurors who were likely to be prejudiced or

biased against the City as indicated by their response to voir

dire questions.

40a

Appendix A

Submitted by:

s/ Thomas Bentley, III

Thomas Bentley, III

Assistant City Attorney

Attorney for Appellant

State Bar ID# 419-76-0936

City of Birmingham

600 City Hall

Birmingham, Alabama 35203

(205) 254-2369