# Opposition Brief — City of Birmingham v. Morro

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1796%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1020

## Text

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)
bp Gee Commrt CE AMINE. oo sn ccscccesenstaeess la

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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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en

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

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1796%3A3. Public record. Not legal advice.