Opposition Brief — Neal v. St. Louis County Board of Police Commissioners

Supreme Court, U.S.

FILED

»)

DEC 27 200

No. 00-850

a

IN THE

Supreme Court of the Hnited States

JENNIFER NEAL, et ai.,

Petitioners,

V.

ST. LOUIS COUNTY BOARD OF

POLICE COMMISSIONERS, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION

Rosert H. GRANT

Counsel of Record

PATRICIA REDINGTON

County Counselor

CHRISTOPHER J. MCCARTHY

Associate County Counselor

41 South Central Avenue

Clayton, Missouri 63105

(314) 615-7042

Attorneys for Respondents

164324 @) Counsel Press LLC

(800) 74-3321 + (800) 359-6859

i

QUESTION PRESENTED

1. Did the Eighth Circuit Court of Appeals properly

apply this Court’s decision in Lewis v. County of Sacramento,

523 U.S. 833 (1998) when it held that the actual time to

deliberate necessary to make a substantive due process

violation truly conscience shocking does not include the

hours before an unintentional shooting of a police officer

during a sudden shootout with a suspected drug dealer even

if both the deceased officer and the shooting officer allegedly

violated departmental regulations that may have averted the

incident or lessened its severity?

ii

PARTIES TO THE PROCEEDING

Petitioners

Jennifer Neal, personal representative of the estate of

Willie Neal, Jr., and Jennifer Neal on her own behalf.

Respondents

St. Louis County Police Officer Carlerton Peterson;

St. Louis County, Missouri; Ronald Battelle, Chief of Police;

and Robert Flag, Chairman; Gene Warmann, Vice Chairman;

Patrick Twardowski, Secretary; Sheila Hoffmeister, Member;

and Leon Burke, member; who together comprise the

St. Louis County Board of Police Commissioners.

The St. Louis County Police Department and the

St. Louis County Board of Police Commissioners are not

suable entities with an existence separate from St. Louis

County, and therefore, neither was a party to the proceedings

below.

iti

TABLE OF CONTENTS

Page

Question Presented .......-.---++e+eeeeeereee i

Parties to the Proceeding ........-.--++++++++: li

Table of Contents ..........cccccccecccccces ili

Table of Cited Authorities ........-----++++++5 iv

Statement of Case .......-...cccccccccccccces l

A. Overview of Case ...........--+2eeeres 1

B. Nature of Case and Course of Proceedings

pen he erry Err eeee TEL ti cate 2

C. Factual Background ..........--+-+-+:: 3

Reasons for Denying the Writ ........------+--- 8

ue dseesebdeesaceeedkanaeds 21

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

Brower v. County of Inyo, 489 U.S. 593 (1989) ... 18

Carter v. Buscher, 973 F.2d 1328 (7th Cir. 1992)

PEPE PU ee Eee Cree Prey er ee ne es 18

Claybrook v. Birchwell; 199 F.3d 350 (6th Cir. 2000)

04. 6 Rd aA ED SON AME ee Oo eR eRe eee 13

Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993) ..15, 16, 18

Collins v. City of Harker Heights, Texas, 503 U.S.

ork. I oy eee cr, eoarp er 19

Daniels v. Williams, 474 U.S. 327 (1986) ........ 10

Lewis v. County of Sacramento, 523 U.S. 833 (1998)

fined nha dnhe cane ken die khed need A455 RAaS passim

Medeiros v. O'Connell, 150 Fd 164 (2d Cir. 1998) |

jun and Cans read AeA Ee 13

Moreland v. Las Vegas Metropolitan Police

Department, 159 F.3d 365 (9th Cir. 1998) ..... 13, 16

Neal v. St. Louis County Bd. Of Police Commissioners,

217 F.36 SSS COs Cae. BOGO) oes cece vacccsas 8, 13

Parrat v. Taylor, 451 U.S. 526 (1981) .......... 8

Vv

Cited Authorities

Page

Radecki v. Barela, 146 F.3d 1227 (10th Cir. 1998)

ecucase beds Uae ed ObCeEe@bse eens eee 13

Rochin v. California, 342 U.S. 165 (1952) ....... 15

Schaefer v. Goch, 153 F.3d 793 (7th Cir. 1998)... 13

Smith v. Freland, 954 F.2d 343 (6th Cir. 1992) ... = 15

Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694,

OS 1; BG: De EO ii i 2 i ees 16

United States Constitution:

Paes A ag go 5 ee RR 2, 18, 19

Eighth Amendment ... 0.0... cece ccc cccecees 12

Fourteenth Amendment ...................0-- 2, 9, 19

Statute:

MEU BA.. GO TOOS noes con tusnciensnensss eae 2, 8, 11

1

STATEMENT OF CASE

A. Overview of Case

St. Louis County Police Officer Carl Peterson attempted

to rescue Officer Willie Neal, a fellow officer who had been

taken hostage at gunpoint and forced to the ground. Officer

Peterson’s lawful command to the assailant to stop and put

down his gun was met with a hail of gunfire. Officer Peterson

returned fire with two shots in an attempt to protect Officer

Neal and himself. Tragically, one of those shots went astray

and unintentionally struck Officer Neal thereby killing him.

The fundamental question before this Court is whether

the substantive due process claims of the deceased police

officer and his family are governed by the “intent to cause

harm standard” that applies to officers who must act in haste,

under extreme pressure and without the luxury of a second

chance, or the “deliberate indifference standard” that applies

where police officers actually have the opportunity to

deliberate before pursuing a course of action. Lewis v. County

of Sacramento, 523 U.S. 833 (1998). The answer to this first

question in turn depends on whether the shooting officer’s

opportunity to deliberate is framed by the time when he

recognized a need to use lethal force and actually made the

decision to shoot, or by the hours before the shooting when

the officers’ alleged violations of departmental rules may

have contributed to the tragedy.

The Circuit Court of Appeals for the Eighth Circuit has

correctly identified the controlling legal precedents in Lewis

and correctly applied Lewis to the facts of this case in finding

that it is inappropriate to look outside the time period

immediately preceding the shooting officer’s decision to

2

return fire in order to determine whether his conduct was

truly conscience shocking. Accordingly, this Court should

not issue its writ of certiorari.

B. Nature of Case and Course of Proceedings

Petitioners filed a First Amended Complaint

(“Complaint”) alleging eleven counts.' App., p. 13.2 Counts

I and II attempt to assert claims under 42 U.S.C. § 1983.

In each of those counts Jennifer Neal, in her capacity as the

personal representative of the estate of Officer Neal, alleges

that Officer Peterson (Count I) and the other Respondents

(Count II) deprived Officer Neal of the rights, privileges,

and immunities secured to him by the Fourth and Fourteenth

Amendments to the Untied States Constitution. The District

Court entered summary judgment on Counts I and II in favor

of Officer Peterson and the other Respondents in its

Memorandum and Order dated June 9, 1999. App., p. 191.

Petitioners now concede that their Fourth Amendment rights

were not violated as alleged in Counts I and II. Petition for

Writ of Cert. p. 15-16.

Counts III through X of the Complaint also attempt to

plead causes of action under 42 U.S.C. § 1983. In Counts III

through VI, Petitioners allege that Officer Peterson deprived

Petitioners of a familial relationship with Officer Neal in

violation of rights secured by the Fourteenth Amendment

1. The plaintiffs in the district court included Petitioners and

Jamelah Neal, Whitney Neal and Willie Neal, Sr., who are

respectively the wife, son, daughter and father of the late Officer

Willie Neal.

2. References to “App. p. __.” refer to pages of Appellants’

Appendix Filed in the Eighth Circuit Court of Appeals.

3

when Officer Peterson shot Officer Neal. In Counts VII

through X, Petitioners claim that the County, Chief Battelle,

and the Members of Board of Police Commissioners failed

to train, supervise or control Officer Peterson in violation of

the Petitioners’ due process rights, thereby leading to the

death of Officer Neal. In Count XI, Jennifer Neal attempted

to invoke the pendent jurisdiction of the District Court to

assert a Missouri wrongful death claim. The District Court

dismissed Counts III through XI of the Complaint in its Order

and Memorandum dated March 26, 1999. App., p. 138.

Petitioners filed a notice of appeal to the United States

Circuit Court of Appeals for the Eighth Circuit by and

through Jennifer Neal, pro se, in which they provided notice

of their intent to appeal the decision of the District Court to

grant summary judgement to defendants. App., p. 203.

Petitioners did not appeal the dismissal of Counts III through

XI that were dismissed by the District Court. App., p. 203.

The Eighth Circuit, however, allowed the Petitioners to brief

allegations of error by the District Court in the dismissal of

Counts III through X, and the Eighth Circuit then upheld the

District Court’s Dismissal of those Counts. Petition for writ

of Certiorari, Appendix A. Petitioners did not appeal or brief

the dismissal of their wrongful death claim contained in

Count XI. Count XI was therefore abandoned on appeal to

the Eighth Circuit.

C. Factual Background

On January 29, 1997, the late Officer Willie Neal was

tragically and unintentionally shot by a fellow police officer,

Officer Carl Peterson, during a shootout with a suspected

drug dealer. At that time, Officer Neal was a commissioned

officer serving in the St. Louis County Police Department

4

Bureau of Drug Enforcement, Multi-Jurisdictional Task

Force (Task Force), and Officer Peterson was a

commissioned officer serving in the St. Louis County Police

Department’s Bureau of Drug Enforcement, Bureau of

Special Operations. App., p. 153, 91 & 4. The Task Force

focused its efforts on enforcing state laws against the sale

and possession of illegal narcotics within St. Louis County.

App., p. 153, 92. The Bureau of Special Operations focused

its efforts on enforcing state vice laws, but Officer Peterson

also assisted Task Force members on drug buys when Task

Force members needed additional assistance. App., p. 154,

q14 & 5.

On the afternoon of January 29, 1997, Officer Neal asked

Officer Peterson to accompany him on an undercover deal

Officer Neal had arranged for that afternoon on Natural

Bridge Road in St. Louis County. App., p. 154, 96. Officer

Peterson told Officer Neal that he would need to get the

approval of his supervisor. App., p. 157, 43 Officer Neal

and Officer Peterson went to Officer Peterson’s acting

supervisor, Sergeant Bill Hines. App., p. 157, 93. Officer

Neal spoke with Sgt. Hines, “explaining that he had set up

an undercover purchase of marijuana on Natural Bridge in

St. Louis County and needed assistance in carrying out the

deal.” Petition for Writ, p. 6. While Officer Neal and Sgt.

Hines talked, Sgt. Hines offered to provide additional backup

officers; but Officer Neal, who was the senior officer, refused

that offer. App., p. 157, 93 & p. 158, | 7. Officer Peterson

then obtained the approval of Sgt. Hines and agreed to assist.

App., p. 154, ¥7 & p. 157, 43. There is no evidence in the

record to show that Officer Neal ever sought or obtained the

approval of his supervisor.

Late on the afternoon of January 29, 1997, Officer Neal

and Officer Peterson drove to a Popeye’s Restaurant on

5

Natural Bridge Road in St. Louis County in Officer

Neal’s undercover car. App., p. 154, 98. Officer Neal drove

onto the Popeye’s lot, but he did not contact anyone.’

App., p. 154, 49. Officer Neal then left Popeye’s and drove

east on Natural Bridge to the Mac’s Package Liquor Store

(Mac’s) located at 5956 Natural Bridge Road in the adjacent

City of St. Louis. App., p. 154, 410.

Officer Neal drove onto Mac’s parking lot and parked

his car perpendicular to and facing the west wall of the

building near to its back (south) wall. App. at 154, 4910-11.

Both Officer Neal and Officer Peterson remained in the car.

App., p. 154, 911. Within minutes after arriving at Mac’s, a

person later identified as Jerome Baker (“Baker”),

approached the car from the passenger side and looked in

the passenger window at Officer Peterson.* App., p. 154,

412. Baker then walked around the rear of the car and headed

toward the driver’s door. App., p. 154, 413. Officer Neal got

out of his car and walked toward Baker. App., p. 154, 414.

3. Petitioners posit that Officer Neal was attempting to set up

a drug purchase from a suspect named Collis Lee at 2:00 p.m. on

the day of shooting. Petition For Writ, p. 5.

4. Petitioners are absolutely wrong when they assert at page

28 of their brief that “Nea! and Peterson sat in their car in the liquor

store parking lot for approximately 45 minutes before being

approached by Baker.” Petitioners also posit that Baker approached

Officer Neal’s car 30 minutes after they drove to Mac’s Package

Liquor. Petition For Writ, p. 6. Neither time line is supported by

competent evidence in the record. The 45 minute time line is

apparently premised upon the hearsay conclusions contained in the

report of a critical review panel. That report was properly objected

to when it was proffered in opposition to Defendants/Respondents’

Motion For Summary Judgment. App., p. 184, p. 13, Exhibit C.

6

When Officer Neal and Baker met, they shook hands and

started talking. App., p. 154, 915. As Officer Neal and

Baker talked, they walked towards the southwest corner

of Mac’s building where they stopped and continued to talk.

App., p. 155, 416. After a urief conversation, Officer Neal

and Baker walked around the rear corner of the building.

App., p. 155, 917. After a few moments, Officer Peterson

saw Officer Neal slowly raise his left hand in what he

recognized as a sign of trouble. App., p. 155, 919. Officer

Peterson also realized he could no longer see Baker although

Officer Neal had never left his sight. App., p. 155, 919

& p. 158, 99. At that point, Officer Peterson got out of the

undercover car and slowly moved so that he could see around

the southwest corner of the building. App., p. 155, 418.

Officer Peterson moved as quietly as he could so that he

would not alert Baker to his actions. App., p. 155, 418.

When Officer Peterson looked around the corner of

the building, he was twenty to thirty feet from Baker.

App., p. 155, 419. Baker was pointing his gun at Officer

Neal’s head, and Officer Neal was starting to lie down on

the ground. App., p. 155, 420. Officer Peterson waited for

Officer Neal to get completely on the ground. App., p. 155,

421. At that time, Baker was bending over Officer Neal

pointing his pistol directly at Officer Neal’s head, and jabbing

his pistol toward Officer Neal’s head in a hostile and

threatening manner. App., p. 155, 921.

After Officer Neal got down to the ground, Officer

Peterson announced that he was a police officer and ordered

Baker to stop and put his gun down. App., p. 155, $22.

At that point, Officer Peterson already had his pistol out and

in the ready position. App., p. 155, 422. Upon hearing Officer

Peterson, Baker instantly whirled and started firing at Officer

7

Peterson. App., p. 155, 423. When Baker started shooting at

Officer Peterson, Officer Peterson fired two shots at Baker

in order to defend himself and Officer Neal. App., pp. 155

& 158,924 & 16. By the time Officer Peterson fired his first

shot, Baker was standing erect. App., p. 158, 911. Officer

Peterson made the decision to shoot at Baker the instant

before he actually shot at Baker. App., p. 158, 45. All the

ammunition in Officer Peterson’s service pistol on January

29, 1997, was ammunition that had been issued to him by

the St. Louis County Police Department. App., p. 157, {1

& 2.

When Officer Peterson realized that Baker was

continuing to shoot at him even after he had fired two shots,

Officer Peterson moved to his left. App., p. 156, 924. After

Officer Peterson started to move, he did not fire any

additional shots. App., p. 156, 925. In all, Baker fired four

or more shots at Officer Peterson. App., p. 156, 426.

At the scene of the shooting, Officer Peterson did

not know that he fired a shot that struck Officer Neal.

App., p. 156, 927. Officer Peterson did not shoot at Officer

Neal, and he did not believe that Officer Neal would be

endangered by the shots he fired at Baker. App., p. 156, 428.

Officer Peterson did not intend to shoot Officer Neal or to

harm Officer Neal in any way. App., p. 156, 4928, 30, & 31.

OfficerPeterson also never intended to worsen Officer Neal’s

legal plight. App., p. 156, 432.

Ofiicer Neal was the senior officer on January 29, 1997.

App., p. 158, 47. It was Officer Neal’s buy. App., p. 158, 7.

Officer Neal had the discretion to terminate the buy at any

time. App., p. 158, 7. Officer Neal also had the discretion

to use a“wire” or a bullet proof vest. App., p. 158, ¥7. Officer

8

Peterson was not Officer Neal’s supervisor. App., p. 158,

47. Officer Peterson did not have the authority to order

Officer Neal to wear a “wire” or to wear a bullet proof vest.

App., p. 158, 7.

REASONS FOR DENYING THE WRIT

Petitioners seek a writ of certiorari to review the decision

of the Eighth Circuit Court of Appeals in Neal v. St. Louis

County Bd. Of Police Commissioners, 217 F.3d 955

(8th Cir. 2000). In that decision, the Eighth Circuit held that

Officer Carl Peterson did not violate Petitioner’s substantive

due process rights when Officer Peterson unintentionally shot

Officer Neal during a shootout with an assailant who was

threatening Officer Neal with a gun. The petition for writ of

certiorari should be denied because the Eighth Circuit

correctly identified and applied in this case the controlling

legal precedents set out in County of Sacramento v. Lewis,

523 U.S. 833 (1998).

The Neals brought this action under 42 U.S.C. § 1983.

The essential elements of an action brought under § 1983 are:

(1) whether the conduct complained of was

committed by a person acting under color of state

law; and (2) whether this conduct deprived a

person of rights, privileges or immunities secured

by the constitution or laws of the United States.

Parrat v. Taylor, 451 U.S. 526, 535 (1981). Officer Peterson

did not violate Petitioners’ federally protected rights, and

therefore, Petitioners’ § 1983 claims against Respondents

must fail. Jd.

9

Substantive due process is the only issue Petitioners have

briefed in their Petition for a Writ of Certiorari. The question

before this Court is whether Petitioners’ substantive due

process claims are controlled by the “intent to cause harm”

standard or the lesser “deliberate indifference” standard both

discussed at length in Lewis. The answer to that question

depends upon the facts of the case and whether, under those

facts, Officer Peterson actually had time to deliberate prior

to acting. Where there is no time for actual deliberation, the

“intent to harm” standard is applicable. Lewis, supra at 523

U.S. 836 & 853-854.

The Eighth Circuit held that based on the facts of this

case, “it is inappropriate to look outside the time period

immediately preceding [Officer] Peterson’s decision to fire

his gun to determine whether Peterson’s conduct was truly

conscience shocking.” Petition for Writ, Appendix A, p. 8a.

Petitioners assert that the Eighth Circuit erred, and instead,

encourage this Court to look to the hours preceding the

shooting and various alleged violations of departmental

regulations that Petitioners contend caused the tragic

shooting of Officer Neal in order to find that Officer Peterson

actually had time to deliberate about his actions. Petitioners

argue that such time for actual deliberation made Officer

Peterson’s actions truly shocking to the conscience and

therefore a violation of Petitioners’ substantive due process

rights.

The substantive due process component of the

Fourteenth Amendment that Petitioners rely upon bars

“ “certain government actions, regardless of the fairness of

the procedures used to implement them.’ ” Lewis, supra at

523 U.S. 840. Only the most egregious official conduct

violates the substantive component of the Due Process

10

Clause. Jd. at 523 U.S. 846. Executive action violates

substantive due process only where it shocks the conscience.

Id. at 523 U.S. 846. This comports with the general intent of

the Due Process Clause which is to prevent government

officials from abusing their power or employing it as an

instrument of oppression. /d. at 523 U.S. 846. Clearly, due

process does not impose liability whenever someone cloaked

with state authority causes harm. Jd. at 523 U.S. 848. Further,

liability for negligently inflicted harm is categorica! ly

beneath the threshold of constitutional due process.

Id. at 523 U.S. 849.

Under the terrifying circumstances facing Officer

Peterson in this case, an errant shot would not even give

rise to negligence; and negligence itself is categorically

below the threshold of liability for due process violations.

Lewis, supra at 523 U.S. 849; and Daniels v. Williams, 474

U.S. 327, 328 (1986). This Court should therefore reject

Petitioners’ substantive due process claims.

The burden to prevail on a substantive due process theory

is significantly higher than mere negligence. Lewis, supra

at 523 U.S. 836 & 854. In Lewis, this Court analyzed

substantive due process liability in the context of police

actions made in haste, under pressure, and without the luxury

of a second chance. In that case, a police officer observed a

motorcycle carrying a driver and passenger approach at high

speed while the officer was investigating another matter.

The officer turned on his flashing lights, ordered the driver

to stop, and attempted to block the path of the motorcycle.

The driver of the motorcycle, however, evaded the attempt

to block his escape and raced away from the scene at high

speed. The police officer jumped into his patrol car and

immediately chased the motorcycle for about 75 seconds at

11

speeds up to 100 mile per hour. This chase probably violated

several police department general orders. Jd. at 523 U.S. 838-

839. After a short chase, the motorcycle fell on its side.

The pursuing officer was unable to stop his car before hitting

and killing the passenger. The parents of the passenger sued

under 42. U.S.C. § 1983 alleging a violation of the decedent’s

substantive due process right to life.

In analyzing the parents’ substantive due process claims,

this Court observed that what shocks the conscience in one

situation may not be so shocking in another situation.

Id. at 523 U.S. 850. Therefore, in order to preserve the

constitutional proportions of substantive due process, an

exact analysis of the circumstances is required before any

abuse of power is condemned as shocking to the conscience.

Id. at 523 U.S. 850-851. To further clarify the constitutional

proportions of substantive due process, this Court

emphasized “that the due process guarantee does not entail

a body of constitutional law imposing liability whenever

someone cloaked with state authority causes harm.”

Id. at 523 U.S. 848.

This Court then reviewed its substantive due process

holdings as they applied in prison environments to inmates’

need for food, clothing, shelter, medical care, and reasonable

safety. In those contexts, prison officials are held to a

deliberate indifference standard because they have the luxury

of time to make unhurried judgements often with time for

repeated reflection. Jd. at 523 U.S. 853. That is because the

deliberate indifference standard only makes sense where

there is actually time to deliberate. Jd. at 523 U.S. 851.5

5. “Actual deliberation” is not deliberation for only a moment

or instant of time as would be sufficient in a state criminal

proceeding. Lewis, supra at 523 U.S. 851 n.11.

12

This Court then contrasted normal prison conditions

with prison riot conditions where time to deliberate is absent.

Id. at 523 U.S. 852. During prison riot situations, this Court

has required a much higher level of fault than deliberate

indifference. Jd. at 523 U.S. 852-853. In such situations, prison

officials violate prisoners’ Eighth Amendment rights only where

the officials act “maliciously and sadistically for the very

purpose of causing harm.” /d. at 523 U.S. at 853.

With that background, this Court compared the position of

police officers who must act in haste, under pressure, and

without the luxury of a second chance to that of prison officials

facing a riot. Jd. at 523 U.S. 853.

Like prison officials facing a riot, the police on an

occasion calling for fast action have obligations that

tend to tug against each other. Their duty is tc restore

and maintain lawful order, while not exacerbating

disorder more than necessary to do their jobs. They

are supposed to act decisively and to show restraint

at the same moment, and their decisions have to be

made in “haste, under pressure, and frequently

without the luxury of a second chance.”

Lewis, supra at 523 U.S. 853. This Court then held that just as

a purpose to cause harm is needed for Eighth Amendment

liability in a riot case, intent to cause harm unrelated to the

legitimate object of arrest is needed to establish liability

for violations of substantive due process in police pursuit

cases. Id. at 523 U.S. 836 & 854. Accordingly, “high speed

chases with no intent to harm suspects physically or to

worsen their legal plight do not give rise to liability under the

Fourteenth Amendment, redressible by an action under § 1983.”

Id. at 523 U.S. 854.

13

The holding in Lewis, applies with equal force to

substantive due process claims brought against police officers

who are forced to make life and death decisions in haste,

under pressure, and without the luxury of a second chance.

Since Lewis was decided, the Second, Sixth, Seventh, Eighth,

Ninth, and Tenth Circuit Courts of Appeals have applied the

holding in Lewis to shooting cases involving law enforcement

officers. Medeiros v. O’Connell, 150 Fd 164 (2d Cir. 1998)

(shot fired by trooper trying to end a school bus hijacking

unintentionally struck and killed a hostage); Claybrook v.

Birchwell; 199 F.3d 350 (6th Cir. 2000) (Police Officers

returning fire after being fired upon by an assailant

unintentionally shot a passenger in the car the assailant used

for cover); Schaefer v. Goch, 153 F.3d 793 (7th Cir. 1998)

(police officer fired a burst of submachine gun fire at an

armed man killing the man and unintentionally killing

a hostage held only inches from the armed man); Neal v.

St. Louis County Bd. Of Police Commissioners, 217 F.3d

955 (8th Cir. 2000) (see Factual Background set forth above);

Moreland v. Las Vegas Metropolitan Police Department, 159

F.3d 365 (9th Cir. 1998) (police shot and killed a bystander

when they tried to shoot another man who was shooting at

other civilians.); and Radecki v. Barela, 146 F.3d 1227

(10th Cir. 1998) (deputy ordered civilian to intercede in fight

with assailant for control of deputy’s pistol, and civilian was

shot after assailant gained control of pistol and deputy

fled).

In each of these cases, the circuit courts applying the

holding in Lewis “recognized that the critical question in

determining the appropriate standard of culpability is whether

the circumstances allowed the state actors time to fully

consider the potential consequences of their conduct.”

Moreland, supra at 159 F.3d 373. And in each of these cases,

14

the court found that the police officer was caught up in a

rapidly evolving situation that did not allow the officer the

luxury of actual deliberation; and therefore, because the

officer did not intend to harm the person who was shot and

did not intend to worsen that person’s legal plight, the police

officers did not violate the injured person’s substantive due

process right to life. The Eighth Circuit correctly found that

the same legal reasoning and “intent to cause harm” standard

are applicable to Officer Peterson actions in this case.

Petitioners argue that the Lewis “intent to cause harm”

standard should not apply to Officer Peterson’s actions

because breaches of departmental rules and regulations and

various unsound police practices during the hour or so before

the shooting caused the death of Officer Neal; and Officer

Peterson had the time to actually deliberate during that

period.® Petitioners then argue that since Peterson had over

one hour to actually deliberate on the effect of these

violations of departmental regulations, the lesser “deliberate

indifference” standard should apply rather than the more

stringent “intent to cause harm” standard enunciated in Lewis.

In considering this central thesis of Petitioners’ brief,

this Court should note that Petitioners themselves attribute

the violations of departmental standards and policies to

“blatant ignorance.” Petition for Writ, p. 1. There is nothing

in the record to demonstrate or even suggest that either officer

ever actually recalled much less considered any of the

policies that are alleged to have been violated.

6. It should be noted that Officer Neal, as the senior officer

who planned the buy, had an equal opportunity and a superior

obligation to ensure that all departmental regulations were observed.

15

In the past, when this Court found that police conduct

in the middle range between negligence and intentional

conduct was sufficient to shock the conscience, the

police officers “apparently acted with full appreciation

of what the court described as the brutality of their acts.”

Lewis, Id. at 523 U.S. 850 n.9 citing Rochin v. California,

342 U.S. 165 (1952). In other words, the officers in Rochin

acted with full knowledge of the wrongfulness of their acts.

There is no evidence in the record to establish that Officer

Peterson acted with knowledge that either he or Officer Neal

had violated departmental regulations; and therefore the

lesser standards of recklessness, deliberate indifference or

conscious disregard are inapplicable to this case.

More importantly, even if departmental regulations were

breached and even if these breaches “offended the

reasonableness held up by tort law or the balance struck in

law enforcement’s own codes of sound practice, [they do]

not shock the conscience, and [the officers] are not called

upon to answer for [them] under §1983.” Lewis, supra, at

523 U.S. 855. Petitioners have cited no case law supporting

their theory that these alleged breaches of policy or sound

police practice themselves violate the constitution. That is

because violations of police department policies or

regulations do not themselves constitute a violation of

constitutional rights.’ Cole, supra at 993 F.2d 1334 and

Smith v. Freland, 954 F.2d 343 (6th Cir. 1992).

The real issue in this case is whether Officer Peterson’s

use of force violated the constitution, not whether Officer

7. Police departments are always free to establish more

stringent rules for their officers than the constitution requires.

Cole, supra at 993 F.2d 1334 and Smith v. Freiand, 954 F.2d 343

(6th Cir. 1992).

16

Peterson should be disciplined for violating departmental

policy.* Cole, supra at 993 F.2d 1334. To answer that

question, this Court should focus on whether Officer

Peterson’s decision to use lethal force and the execution of

that decision were made at a time when deliberation was

practical or whether the decision to shoot at Jerome Baker

and the execution of those shots were made in haste, under

pressure and without a second chance. Lewis, supra at 523

U.S. 851-854 and Moreland, supra at 159 F.3d 373.

In this case, Officer Neal unexpectedly moved to a

second location in a neighboring jurisdiction to find a

suspect, thereby removing any advantage of pre-planning

the operation. App., p. 154-5, 998-12. Officer Neal then

unexpectedly deviated from what Petitioners say is

established police practice by walking out of the full sight

of his backup officer. App., p. 154-5, 4914-19. In the process,

he led Baker out of the sight of Officer Peterson.

App., p. 154-5, 4914-19. This forced Officer Peterson to

move quickly to re-establish visual contact with Baker.

App., p. 155, 4918-19. Once Officer Peterson re-established

visual contact with Baker, he saw Baker pointing a pistol at

Officer Neal’s head. App., p. 155, 920. At any moment, Baker

could have fired his gun killing Officer Neal. —

8. Officer Peterson made a constitutionally correct decision

that he was privileged to use lethal force to defend himself and

Officer Neal. See Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694,

1701, 85 L. Ed. 2d 1 (1985). (“Thus, if the suspect threatens the

officer with a weapon or there is probable cause to believe that he

has committed a crime involving the infliction or threatened

infliction of serious physical harm, deadly force may be used if

necessary to prevent escape, and if, where feasible, some warning

has been given.” Garner, supra at 105 S. Ct. 1701.)

17

Clearly, Officer Peterson was forced to decide upon a

response and then act in haste, while under excruciating

pressure and with no opportunity for a second chance. Actual

deliberation about various alternatives was not practical.

Therefore, the application of the “intent to cause harm”

standard is correct. Lewis, supra at 523 U.S. 836 & 854.

Under these facts, Officer Peterson’s actions certainly do

not shock the conscience in a constitutional sense.

As an additional practical consideration, the

constitutionality of the decision to use lethal force is so fact-

driven that no officer can decide in advance the precise

circumstances under which he will shoot or not shoot.

The officer must first see the events as they unfold and then

use his best judgment in light of what he knows about the

situation at that time.’ The decision to shoot back in a gun

battle and the execution of that decision are made in terrifying

and uncertain conditions. Often, as in this case, the situation

will explode upon the officer. Further, every fraction of a

second may mean the difference between life and death. Each

of these factors is further compounded by the grave legal

and moral consequences that surround the decision whether

to use lethal force. The pressure is surely excruciating. This

Court has recognized the extremely difficult task facing

police officers under such circumstances by holding that only

an intent to cause harm unrelated to a legitimate law

enforcement objective will shock the conscience.

Lewis, supra at 523 U.S. 836 & 854.

This case is further differentiated from those in which

the lesser deliberate indifference standard is appropriate by

9. There is no constitutional requirement that an officer shoot

an aggressor in certain situations. Therefore, the officer always has

the constitutionally permissible option not to use lethal force.

18

the essential governmental interest in protecting innocent

life. In Lewis, this Court observed that a deliberate

indifference standard is appropriate in cases alleging a failure

to provide decent care and protection to those it locks up

because there are no strong countervailing interests that

excuse such failures. Lewis, id. at 523 U.S. 851. In other

words, typically, there is not a clash between providing care

or protection to inmates and other governmental

responsibilities. Lewis, id. at 523 U.S. 852. However, in this

case, Respondents had the strongest possible countervailing

interest, the preservation of innocent life. Officer Peterson

acted to preserve his own life and that of Officer Neal.

Aff., p. 155, J24. He did not intend to harm Officer Neal.

App., p. 156, 9927-32. The existence of such strong

countervailing governmental interests further support the

application of the “intent to cause harm” standard to

?etitioners’ substantive due process claims.

Existing law and sound public policy also support the

Eighth Circuit’s decision. In this case, it is important to

remember that Officer Peterson was attempting to seize an

assailant by firing two shots at an assailant who was then

and there shooting at Officer Peterson. If Officer Peterson’s

shots had hit their intended target, he would have effected a

Fourth Amendment seizure. Brower v. County of Inyo, 489

U.S. 593, 596-597 (1989). In a Fourth Amendment case, the

court would only scrutinize the seizure, and not the events

leading up to the seizure. Cole v. Bone, 993 F.2d 1328, 1333

(8th Cir. 1993) and Carter v. Buscher, 973 F.2d 1328, 1332

(7th Cir. 1992). That is because the Fourth Amendment

prohibits unreasonable seizures, not unreasonable or ill-

advised conduct in general. Cole, supra at 993 F.2d 1333.

Accordingly, if Officer Peterson had hit Baker, his intended

target, the Court would not scrutinize pre-seizure conduct

19

such as alleged violations of department rules and regulations

or sound police practice occurring before the moment of the

shooting.

Likewise, this Court should not scrutinize Officer .

Peterson’s pre-shooting conduct in this case because the Due

Process Clause of the Fourteenth Amendment, like the Fourth

Amendment, does not prohibit incorrect or ill-advised

conduct in general. Collins v. City of Harker Heights, Texas,

503 U.S. 127, 129 (1992). Instead, the Due Process Clause

prohibits arbitrary action of government officials that shocks

the conscience. Lewis, supra at 523 U.S. 846. This Court

has repeatedly emphasized that “only the most egregious

official conduct can be said to be ‘arbitrary in the

constitutional sense.’ ” Lewis, supra at 523 U.S. 846. Officer

Peterson’s response to the hail of gunfire engulfing him was

both reasonable and courageous. It certainly was not

egregious official conduct. Any other holding will counsel

police officers to shrink from the danger of armed

confrontation in the pursuit of noble purposes and surely

undermine police morale. Accordingly, this Court should not

consider ill-advised conduct or a failure to follow department

regulations or sound police practices occurring before

Officer Peterson fired his two shots even if such failure

created the situation in which the officer was fired upon.

Additionally, it would be fundamentally unfair to tell a

police officer that his pre-shooting conduct will not be

scrutinized if he is able to hit his intended target during a

shootout. But if the pressure, the need for haste, the lack

of a second chance, or just plain misfortune cause the

officer to hit an unintended target during a shootout, the

Court will scrutinize everything leading up to the shooting.

Such expansive scrutiny will force every police officer to

20

not only consider the immediate threat to his life but also all

the events leading up to the shooting before he knows

whether he can constitutionally return fire. That is an

impossible task in the fury of a gun battle, and the

constitution should not be interpreted to demand the

impossible from a police officer.

Finally, this Court should consider the disastrous impact

that Petitioners’ proposed extension of the law could have

in the future. For instance, a police officer seeing that another

officer was taken hostage by an armed assailant and realizing

that he or the other officer had violated a departmental rule

that caused the incident would then be forced to conclude

that he could not constitutionally intervene lest he

unintentionally injure his fellow officer. Or worse yet, the

officer taken hostage could be executed while his would-be

rescuer sorted out the events leading up to the shooting and

then applied departmental regulations to those events.

Clearly, it would be better to allow the police officer in such

a case to use his best judgment to resolve the crisis at hand,

and then allow departmental discipline to remedy violations

of policy or practice that caused or aggravated the situation.

Accordingly, this Court should reject Petitioners’

contention that Officer Peterson violated their rights to

substantive due process of law by refusing to grant its Writ

of Certiorari in this case.

21

CONCLUSION

For the foregoing reasons, this Court should deny the

Neals’ Petition for a Writ of Certiorari.

Respectfully submitted,

Rosert H. GRANT

Counsel of Record

PATRICIA REDINGTON

' County Counselor

CHRISTOPHER J. MCCARTHY

Associate County Counselor

41 South Central Avenue

Clayton, Missouri 63105

(314) 615-7042

Attorneys for Respondents