# Opposition Brief — Taylor v. City of Falmouth, Kentucky (No. 06-1036)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2086%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

@ | FILED
No. 06-1036 | MAR 2 9 2007

| OFFICE OF THE CLERK
| SUPREME COURT, U.S.

In The
Supreme Court of the Anited States

°

RALPH TAYLOR,

Petitioner,
v.

CITY OF FALMOUTH, KENTUCKY,
and DONALD ENGLAND,

Respondents.

>
4

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

¢

MARY ANN STEWART
Counsel of Record
JENNIFER L. LANGEN
ADAMS, STEPNER, WOLTERMANN
& DUSING PLLC
40 West Pike Street
Covington, Kentucky 41011
(859) 394-6200

Attorney for Respondents,
City of Falmouth, Kentucky,
and Donald England

oe
-

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

COUNTERSTATEMENT OF
QUESTIONS PRESENTED

(1) Whether the Sixth Circuit correctly interpreted and
applied the “person of ordinary firmness” standard in
upholding a district court’s decision granting summary
judgment to the City of Falmouth and Councilmember
Donald England on Petitioner’s First Amendment retalia-
tion claim?

(2) In holding that speech cannot form the basis for an
Equal Protection Clause claim in the absence of “harass-
ment or other conduct,” did the Sixth Circuit correctly
apply the law as set forth in Village of Arlington Heights v.
Met. Hous. Dev. Corp., 429 U.S. 252 (1977)?

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-
TE tiiilisshicsseresnrnerveresveesceteesceciveecercosecees i
SIRO REET BOD svsceccevevececeusneserceenversenecessveneesees il
EE FAA! BRB BEMIS ceccevvescovevevsscecevenerevenverseesevees iv
COUNTERSTATEMENT OF THE CASE................0006+ 1
EE AEPTEEE? EEIEAI YY vscesecsccccessveserccsveneveseeeonsescosevees 5
REASONS FOR DENYING THE PETITION ............... 7

I. THE PETITION CONTAINS MISLEADING
STATEMENTS ABOUT THE FACTS OF THE
INCIDENT ON WHICH PETITIONER'S
CLAIMS WERE PREMISED .............cccseseseeseeees 7

II. THERE IS NO JUSTIFICATION FOR THE
EXERCISE OF CERTIORARI ON PETI-
TIONER’S FIRST AMENDMENT CLAIM........ 12

A. THE HISTORY AND STANDARD AN-
NOUNCED BY THIS COURT IN BUR-
LINGTON NORTHERN .........:c0ccccsssessesseees 12

B. THERE IS NO “SPLIT” AMONG THE
CIRCUITS WITH RESPECT TO WHETHER
VERBAL CONDUCT ALONE CAN SAT-
ISFY THE “ADVERSE ACTION” ELEMENT
OF FIRST AMENDMENT RETALIATION
ST idichnagdiioscevcenvvosevrshnantetewnrcoeveeeseense 15

Ill. THE “HARASSMENT OR OTHER CON-
DUCT” REQUIREMENT IN EQUAL PRO-
TECTION CASES PREMISED ON A RACIAL
SLUR IS CONSISTENT WITH ARLINGTON
Se iidihadaenbenesesssuwvencsevvvvesevverweseneteoveseeers 21

iil

TABLE OF CONTENTS - Continued
Page

IV. PETITIONER HAS PRESENTED NO JUSTIFT-
CATION FOR THE GRANT OF CERTIORARI AS
AGAINST THE CITY OF FALMOUTH. ..........-.00+ 24

COCA I IN voscoccosrensceesesescnnsenennreositunmmenseinensasnasseretrate 24

1V

TABLE OF AUTHORITIES
Page
CASES
Abuhouran v. Acker, 2005 U.S. Dist. LEXIS 12864

ae ey GN Se III soci cs ctadeseh cecutcbinnceniemebinns 24
Allen v. Scribner, 812 F.2d 426 (9th Cir. 1987).............008. 20
Anderson v. Kierstead, 2006 U.S. Dist. LEXIS 4728

Sat drs Oly SEINE csided-cdbiniddp-dacisnaiaddesbeaimdanauiiisnuiiatrebeieees 23
Balt. Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir.

IIT sicabsicshchsticsitencchisa.hcpichicaciabitiatibanpcahigceicles akinenilidcadadiieissilasmsoadiiii 17
Bart v. Telford, 677 F.2d 622 (7th Cir. 1982) ............eeceeeee 17
Bender v. Brumley, 1 F.3d 271 (5th Cir. 1993)...............00 20
Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005).....16, 17
Blankenship v. Manchin, 471 F.3d 523 (4th Cir.

STEN ciscniedivtihatedsheiaicidindeshbsiinducisecntsoisediamasioatainenedsecadibas 16, 17
Brown v. Runnels, 2006 U.S. Dist. LEXIS 28658

Cee: Soe BN Ek BINED wticssinvehiscendentanlidsdbnnioieretiviiciares 17
Buckley v. Gomez, 1999 U.S. App. LEXIS 129 (9th

te a, Hate weenie chstaeinidenieaitsinihssoctn Measateilstiniiibens 23
Burkybile v. Bd. of Educ., 411 F.3d 306 (2nd Cir.

_, SRR AE SA Se OS TEE RICE A 5ST Hae PUR, SENN A EON 16
Burlington Northern & Santa Fe Ry. Co. v. White,

Ss Ie CE tittitnctincckieeaaticeniinatesbebionsninees passim
Cannon v. Burkybile, 2000 U.S. Dist. LEXIS 14139

Cae eile Ms Big PD ceiictisecsenscasensaboacntedsanneiens icedadias 24
Carrasca v. Pomeroy, 313 F.3d 828 (3rd Cir. 2002) .......... 22

Chicago Reader v. Sheahan, 141 F. Supp. 2d 1142
Re Ae Bs Ae Paiasiccicenncsissciauieidiciniminlisstieibicimbasieninadiasaniapaddhdiies 18

v

TABLE OF AUTHORITIES -— Continued

Page
City of Cuyahoga Falls v. Buckeye Cmty. Hope

Peete, BO UB. LEB CIS vscivinecsocenvcincsscnsavosovnesenss 22, 23
Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474 (460i: Cir, 2008) scccssccseiccssesessesccccesoee 16
Coyle v. Hughs, 436 F. Supp. 591 (W.D. Ok. 1977)........... 20
Crocker v. City of Kingsville, 2006 U.S. Dist. LEXIS

61410 B.D. Te: Faby 2S, ZOO) cccsssisvsecesesserscnsvacecseasens 16
Ctr. for Bio-Ethical Reform, Inc. v. City of Spring-

boro, 2007 U.S. App. LEXIS 3689 (6th Cir. Feb.

Be Pe iicintiatitikeininikisslael pbsiestdnmmebiiiciatiomeimicwene 16, 17
Dawes v. Walker, 239 F.3d 489 (2nd Cir. 2001)............ 16, 18
DeWalt v. Carter, 224 F.3d 607 (7th Cir. 1999)................. 23
Elston v. Talladega Co. Bd. Of Educ., 997 F.2d 1394

CE ry ee inseicsscievssnnsiadbsanecenccixininicidiavniiaesabaunianiial 22
Framsted v. Mun. Ambulance Serv., 347 F. Supp. 2d

6 as FOIE I i ecasokesistdssinsisvvisvtdadarseuinpeeranelevteeiin 16
Garcia v. City of Trenton, 348 F.3d 726 (8th Cir.

IE sissidas ibicbiecsesindiicttadtioeddacvdasiesidneitadeacabiathiinskageadeiideas 17
Giannini » Calif. State Bar Assn., 2006 U.S. App.

LEXIS 27975 (9th Cir. Nov. 8, 2006).................sssseeeeeees 16
Gilbrook v. City of Westminster, 177 F.3d 839 (9th

ES. IIT ickcadanddcpdeieicapddinsubadaddaphadiatekedeipoeaendngienmadmerii 20
How v. City of Baxter Springs, 2007 U.S. App.

LEXIS 4083 (10th Cir. Feb. 22, 2007).................00008 16,17 ©
Izen v. Catalina, 398 F.3d 363 (5th Cir. 2005).................. 16
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004)............ 24

Keyes v. Albany, 594 F. Supp. 1147 (N.D.N.Y. 1984)........ 22

TABLE OF AUTHORITIES — Continued

Page
Martin v. City of San Antonio, 2006 U.S. Dist.
LEXIS 54392 (W.D. Tex. July 25, 2006)............cccceeeeeeee 24
Massey v. Johnson, 457 F.3d 711 (7th Cir. 2006).............. 16
McBride v. Village of Michiana, 100 F.3d 457 (6th
a IIIS ichiovisinssindotsoubdeusionsanteeiiiebadeaseiaiiiataiensindiaioniicmnesateties 20
McKee v. Hart, 436 F.3d 165 (8rd Cir. 2006)................ 17,18
McKee v. Rockwall, 877 F.2d 409 (5th Cir. 1989) ............. 22
Mendocino Envil. Cir. v. Mendocino County, 192
SA CUE Ge Be Pecrcccntenaneictbviiccouneceuncininievvcbiains 16
Mezibov v. Allen, 411 F.3d 712 (6th Cir. 20085) ............ 16, 18
Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836
anne UNIT <sssiccscnsscedusd lapis hcieieetaeaelininiediimaabacadineiaiueniivaien 16
Mitchell v. Chandler, 2006 U.S. Dist. LEXIS 71843
ees SG ENE. Sey SP brsentesteccovesessserceninhensghasedinetinnts 17
Morris v. Powell, 449 F.3d 682 (5th Cir. 2006)................. 17
Naucke v. City of Park Hills, 284 F.3d 923 (8th Cir.
PIII Cinidiebieeedenaiesianighinitiddelsdceaiiiianinmisieiniemmnsdeemaecteaidies 18
Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir.
STD cecieicintehe-aginkintiiiiedaiminsieaeebvdtdionabaskiiabeanabicuiaeanemialianiniondte 18, 20
O’Connor v. City of Newark, 440 F.3d 125 (3rd Cir.
DN cia cusabldasgl. pabackancensgkacaradian sameaue 16
Osborne v. Grussing, 2007 U.S. App. LEXIS 4134
SEE Se I, SL, SEE T DP cioccuternecsecuesestbibieducbsacmniniauabumensie 16
Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002)................. 20
Pittman v. Tucker, 2007 U.S. App. LEXIS 381 (11th
Sy EG ie SEIIEE AF ccnticensiesnacensdgeanebidintonnensbeereuspensioheks 16, 20

Revels v. Vincenz, 382 F.3d 870 (8th Cir. 2004) ................ 16

TABLE OF AUTHORITIES — Continued

Page
Richardson v. Sherrer, 2007 U.S. Dist. LEXIS 4994

Cals MN, Sais PTT P scicisceninenicncccendcanhadaniiiinaibiidiaevniibaien 18
Salley v. PA Dept. of Corr., 181 Fed. Appx. 258 (8rd

Se: SUD sicsitncichnccinsitcetcisiciastib ahd acceeccabailculehditiuaasteibiedeasiouhae 23
Suarez Corp. Ind. v. McGraw, 202 F.3d 676 (4th Cir.

PES Cdiderdcehicttiniunhinia tupiisiiavediabiediiadidmcaacigitaahiiel 18, 20
Sylvia Dev. Corp. v. Calvery Corp., 48 F.3d 810 (4th

Ce, RD siiieesnenisiia sihibisiianieiiciiainieasiaiheaaiainiatertataiapanteaiihdihaiiibie 22
Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999)......... 17
Thomas v. Independence Twnp., 463 F.3d 285 (3rd

TIE Sere cipinaniceihienieesseilidiee canainindcioabansasdsanccaaaaginincaenaesinniats 16, 20
Trudeau v. FTC, 372 U.S. App. D.C. 335 (2006)............... 16
Village of Arlington Hts. v. Met. Hous. Dev. Corp.,

I Ses RE NE Fd cisneencndtdteineanitntbinieiinttbands 21, 22, 23
Williams v. Bramer, 180 F.3d 699 (5th Cir. 1999)............. 22
XMen Sec. Inc. v. Pataki, 196 F.3d 56 (2nd Cir.

TT acsusseaniipcreceesscinsitestieslatea sabieeidedalentaiadiiaddipn deniamabitceuidasishammadebiinngun 18
Zelnik v. Fashion Inst. of Tech., 464 F.3d 217 (2nd

CAS BIT verctisiscsnceustnncicuilcsduiistaihicinidadeiavgiatintiaumadeiaiid 16,17
STATUTORY PROVISIONS
ee See aiéiistenileasccunnicslaseniaiesmeinasindiniapeadiddanstinaadaiialcedde 5
ee Be caciinecseectbininnsendebaiaissatantiianmbsbinesadiindenin 12

GB Ss. FSO iictsccciniscnianiscsctnientinieasvninnnnannnmndeients 12

COUNTERSTATEMENT OF THE CASE

On August 22, 1998, pursuant to the City of Fal-
mouth’s nuisance ordinance, two City police officers towed
what they believed was an abandoned vehicle from Peti-
tioner’s property. The vehicle in question was owned by
Petitioner’s adult son, Shawn Taylor.

Over the next five years, Petitioner appeared sporadi-
cally at City Council meetings to complain about the
towing of his son’s vehicle.’ Specifically, Petitioner ap-
peared at Council meetings on December 29, 1998 and
June 8, 1999, demanding on both occasions that the
vehicle be returned to him. (R. 19 Defendants’ MSJ at Ex.
3 and 4, Apx. pp. 113-119) Each time, City Council referred
Petitioner to then-Police Chief Greg Reis for resolution of
the matter. (R. 19 Defendants’ MSJ at Ex. 3 and 4, Apx.
pp. 113-119) Chief Reis, who happened to be present at the
June 8, 1999, meeting, offered to meet with Petitioner the
next morning to lool: into the matter. However, Petitioner
did not follow up with Chief Reis on either occasion be-
cause he had spoken to Chief Reis once in Augusi 1998
and apparently doubted Reis’ ability to locate the vehicle.
(R. 44 R. Taylor at TR 76-77, 79, Apx. pp. 212-213, 215)

For 18 months, Petitioner made no further inquiries
about the vehicle. Then, on January 2, 2002, he again
appeared before City Council and requested the return
of the vehicle. (R. 19 Defendants’ MSJ at Ex. 5, Apx. pp.

* Shawn Taylor himself never responded to the towing and never
made any inquiries on his own behalf about the vehicle until the
instant action was filed with the district court. Shawn Taylor’s Four-
teenth Amendment procedural due process claim against the City and
the police officers who ordered the towing — the only claim asserted by
either of the plaintiffs that survived summary judgment — settled.

2

120-125) By this time, Petitioner already knew that the
vehicle had been crushed, information that he did not
share with the City when making his demand for the
return of the vehicle.’ (R. 44 R. Taylor at TR 81) In addi-
tion, most of the persons who comprised City Council on
January 2, 2002 were not Councilmembers on June 8,
1999, the last time Petitioner addressed Council about the
towing. (R. 46 T. England at TR 24, Apx. p. 261) Thus,
Council was not prepared to address Petitioner’s inquiries,
but requested that then-Mayor Flaugher investigate and
report on the matter at the next regularly scheduled
Council meeting on February 5, 2002. (R. 19 Defendants’
MSJ at Ex. 5, Apx. pp. 120-125)

Although Petitioner did not appear at the February 5,
2002 Council meeting, City Clerk Terry England reported
that the vehicle had been towed in 1998 under the City’s
nuisance ordinance; that it had been taken to Top Shop
Garage; that the garage was no longer in business; and
that the vehicle could not be located. (R. 19 Defendants’
MSJ at Ex. 6, Apx. pp. 126-130)

Six months later, on August 6, 2002, Petitioner again
appeared at a Council meeting, demanding the return of
“his” vehicle. (R. 19 Defendants’ MSJ at Ex. 7, Apx. pp.
131-134) From the start, Petitioner was extremely con-
frontational with City Clerk Terry England, whom he
accused of hiding the vehicle. (R. 19 Defendants’ MSJ at
Ex. 7, Apx. pp. 131-134; R. 46 C. Clifford at TR 16, Apx. p.

* Petitioner testified that he talked with the owner of Top Shop
Garage in 1999 and was told at that time that the vehicle had been
crushed. (R. 44 R. Taylor at TR 72, Apx. p. 210)

* Again, the vehicle belonged to his adult son, another fact
Petitioner withheld from Falmouth City Council.

3

257; R. 46 T. England at TR 25, Apx. p. 261) The discus-
sion between Petitioner and Terry England became heated
and was loud enough that it interfered with the progres-
sion of Council’s agenda. (R. 46 M. Shields at TR 25-26,
Apx. pp. 254-255; R. 46 T. England at TR 27-28, Apx. p.
262; R. 46 D. Cross at TR 15-16, Apx. p. 258)

Councilmember Donald England (Terry England’s
father) told Petitioner and Terry England to be quiet so
City Council could focus on its business. (R. 19 Defendants’
MSJ at Ex. 7, Apx. pp. 131-134; R. 46 M. Shields at TR 26,
Apx. p. 255; R. 46 T. England at TR 28, Apx. p. 262; R. 46
D. England at TR 38-39, Apx. p. 243) In response, Peti-
tioner approached Councilmember England and said, “I’m
not afraid of you.” (R. 19 Defendants’ MSJ at Ex. 7, Apx.
pp. 131-134; R. 46 D. England at TR 38-39, Apx. p. 243; R.
46 T. England at TR 28, Apx. p. 262) Councilmember
England then called Petitioner a “black bastard” and
invited him to “step outside.” (R. 19 Defendants’ MSJ at
Ex. 7, Apx. pp. 131-134; R. 44 R. Taylor at TR 92, Apx. p.
224; R. 46 C. Clifford at TR 16, Apx. p. 257; R. 46 M.
Shields at TR 27, Apx. p. 255; R. 46 T. England at TR 28,
Apx. p. 262; R. 46 D. England at TR 36, Apx. p. 242) The
rest of Council audibly gasped in disbelief when England
made the remark.‘ (R. 44 R. Taylor at TR 95, Apx. p. 227)

After making the remark, Donald England went
outside. A police officer who regularly attended City Council
meetings and a councilmember followed and detained
England, a measure Petitioner acknowledges was intended

‘In his deposition, Petitioner characterized the reaction to
England’s comment as nervous laughter, “like, you know, like one little
kid does something, all the kids does, oh, that’s all I heard.” (R. 44 R.
Taylor at TR 95, Apx. p. 227)

4

to make sure there would be no physical confrontation
outside. (R. 44 R. Taylor at TR 93-94, 98, Apx. pp. 225-226,
230) Petitioner stayed to finish addressing the remaining
members of Council. He told Council he would come back
the following month to discuss his vehicle again. (R. 44 R.
Taylor at TR 93-94, Apx. pp. 225-226)

Having finished addressing City Council, Petitioner
left the meeting. Donald England, who was then outside,
was being detained by a police officer and one of his fellow
Councilmembers to calm him down and to ensure that no
physical confrontation ensued between England and
Petitioner. (R. 44 R. Taylor at TR 93-94, 98, Apx. pp. 225-
226, 230) Petitioner attempted to walk in England’s
direction, purportedly because that was the way to his
home. However, to prevent any interaction between
England and Petitioner, a police officer told Petitioner he
could not walk in that direction. Rather than taking
another route home, Petitioner remained at the scene for
approximately 30-45 minutes, during which time he now
claims he was being “detained.”

Notwithstanding England’s remark, the City Attorney
who was present at the August 6, 2002 Council meeting
encouraged Petitioner to submit a claim for compensation
for the vehicle that had been towed. (R. 44 R. Taylor at TR
78-79, Apx. pp. 214-215) City Council also directed its -y
Clerk and City Attorney to investigate Petitioner’s allega-
tion about the towing of the vehicle. (R. 19 Defendants’
MSJ at Ex. 8, Apx. pp. 135-139) Indeed, City Council
placed Petitioner on the agenda for its September 3, 2002,
meeting, and the City Attorney reported the results of his
investigation at that time. (R. 19 Defendants’ MSJ at Ex.
1, Apx. pp. 107-111).

5

Having investigated the matter, the City Attorney
reported that Shawn Taylor, not Petitioner, owned the
vehicle and that the claim had to be resolved with the
vehicle’s owner. (R. 19 Defendants’ MSJ, Apx. pp. 76-106).
Not having heard from Shawn Taylor, the actual owner of
the vehicle, City Council took no further action.

¢

PROCEEDINGS BELOW

On July 1, 2003, Petitioner filed a Complaint against
the City of Falmouth, Mayor Gene Flaugher, the two police
officers who had directed the towing of the vehicle,’ and
Councilmembers, Donald England, Janet Field, Mary Ann
Shields, Clay Clifford, Don Cross and Virgil Moore, all in
their individual and official capacities (collectively “Fal-
mouth Defendants”), alleging, pursuant to 42 U.S.C.
§ 1983, that Falmouth Defendants had violated his and
Shawn Taylor’s constitutional rights.

Shawn Taylor asserted multiple causes of action
under the Fourth and Fourteenth Amendments in connec-
tion with the towing of his vehicle. (R. 1 Complaint,
Apx. pp. 20-30) The District Court granted summary
judgment in Shawn Taylor’s favor on his Fourteenth
Amendment procedural due process claim, but granted
summary judgment to Falmouth Defendants on all of

* Petitioner’s reference to having sued “several police officials” in
paragraph 6 of his “Statement of the Case,” followed in quick succession
by his reference to a “police detention” in the next paragraph improp-
erly suggests that he asserted a Fourth Amendment claim against the
officers who allegedly detained him. He did not. The only police officers
named as defendants in Petitioner's Complaint were the two who towed
Shawn Taylor's vehicle. Petitioner asserted no claim against them.

6

Shawn Taylor’s other claims. (R. 52 Opinion at 1-23, Apx.
pp. 31-53) The parties settled Shawn Taylor’s procedural
due process claim and Shawn Taylor never appealed the
remainder of the District Court’s decision.

Petitioner asserted claims premised on both the
towing and the incident in which Donald England called
him a “black bastard.” (R. 1 Complaint, Apx. pp. 20-30)
When Falmouth Defendants challenged his standing to
raise claims based on the towing and asserted a statute of
limitations defense to those claims, Petitioner abandoned
all claims premised on the towing and sought to recover
solely for England’s “black bastard” remark. (R. 19 Defen-
dants’ Memorandum in Support of MSJ at 6-8, Apx. pp. 81-
83; R. 27 Plaintiffs’ Response to Defendants’ MSJ at 6,
Apx. p. 147) Thus, Petitioner alleged that England vio-
lated his right to equal protection and retaliated against
him for exercising his First Amendment rights by calling
him a “black bastard.” In addition, Petitioner alleged that
Flaugher, Field, Shields, Clifford, Cross and Moore
(“Council Defendants”) were liable in their individual
capacities for failing to rebuke England after that com-
ment. Finally, Petitioner sought to impose liability on the
City of Falmouth in connection with England’s remark and
the elected officials’ alleged lack of response to that re-
mark.

In a thorough and well-reasoned opinion, the District
Court granted summary judgment to the City, Council-
member England and the Council Defendants on all of
Petitioner’s claims. Petitioner appealed that decision to
the Sixth Circuit Court of Appeals, and the Sixth Circuit,
in an equally sound and well-reasoned opinion, affirmed
the District Court’s decision.

By way of the instant Petition, Petitioner seeks review
of the Sixth Circuit’s decision with respect to his First
Amendment retaliation and equal protection claims
against Councilmember England. In addition, having
identified the City of Falmouth as a party to this proceed-
ing, Petitioner apparently seeks review in this forum of
the Sixth Circuit’s decision with respect to his municipal
liability claim.

+

REASONS FOR DENYING THE PETITION

I. THE PETITION CONTAINS MISLEADING STATE-
MENTS ABOUT THE FACTS OF THE INCIDENT
ON WHICH PETITIONER’S CLAIMS WERE PREM-
ISED

Before getting to the heart of this Response, it is
necessary to clarify several misleading statements and/or
inaccurate implications contained in the Petition.

First, Petitioner contends that “the City’s legislative
body itself engagel[d] in the racially intimidating conduct”
and repeatedly imputes England’s comments to the City
Council as a whole. (Petition, pp. 7, 19, 25-30, FN 6 and 7)
That is wholly unsupported by any evidence in the record.
The only person who uttered a racially insensitive or
intimidating comment is Donald England. It is elementary
that a legislative body speaks not through the voice of a
single legislator, but only by majority vote. Any other
arrangement would require a vote on every sentiment ever
expressed by a councilmember, lest one councilmember’s
diatribe be subsequently construed as the opinion of “the
legislative body itself.” As such, the legislative body itself
did not engage in racially intimidating conduct.

8

Second, Petitioner states: “Mr. England then walked
outside, accompanied by an armed officer, for the purpose
of making good on his threat.” (Petition, pp. 6-7) As writ-
ten, this statement could be read to unfairly infer that the
“armed guard” was brought along to reinforce England’s
threat. However, as Petitioner plainly acknowledges, a
police officer and another councilmember each on their
own initiative, followed England outside in order to ensure
that England did not fight with Petitioner. (R. 44 R. Taylor
at TR 93-98, Apx. pp. 225-230)

Third, Petitioner asserts that Falmouth City Council
“rejected” his complaints about the towing of his son’s
vehicle and that the rejection was “racist.” (Petition, p. 7)
This assertion is completely unfounded. For one thing,
Council did not “reject” Petitioner’s complaints. To the
contrary, the City Attorney suggested that Petitioner
submit a claim to the City’s insurance carrier, a suggestion
Petitioner concedes he simply ignored. (R. 44 R. Taylor at
TR 78-79, Apx. pp. 214-215) In addition, Council directed
then-Mayor Flaugher and the City Clerk to investigate the
circumstances of the towing and the whereabouts of the
vehicle and to report back at the next regularly scheduled
meeting of Falmouth City Council. The City Attorney, in
addressing his client, the City, rendered legal opinions
concerning Petitioner’s standing to contest the towing and
the expiration of the statute of limitations. There was no
evidence that these legal conclusions, which were unchal-
lenged, were racist or that Council’s reliance thereon was
motivated by racial prejudice.

* The Sergeant-At-Arms of Ci , Council, who was also a police
officer for the City of Falmouth, is the “armed guard” to whom Taylor
refers. (R. 44 R. Taylor at TR 95, Apx. p. 227)

9

Petitioner has never produced any evidence that
Falmouth City Council as a whole treated him any differ-
ently than it treated others, or that any difference in
treatment was the result of Petitioner’s race. To the
contrary, just as it had done for other citizens in the past,
Falmouth City Council gave Petitioner permission to
address Council on a matter that was not on the agenda.
(R. 46 V. Moore at TR 13-14, Apx. pp. 263-264; R. 46 Gene
Flaugher at TR 60, Apx. p. 251; R. 46 T. England at TR 19-
21, Apx. p. 260) In addition, Falmouth City Council re-
sponded to Petitioner’s complaint the same way it re-
sponded to complaints from other citizens, i.e., by directing
the Mayor to investigate and report back to Council. (R. 46
D. Cross at TR 23-24, Apx. p. 259; R. 46 D. England at TR
26-27, Apx. p. 241)

Finally, since the fact that England threatened him
did not convince the District Court that he had a viable
equal protection claim, Petitioner shifted the focus of his
argument on appeal and in this Petition. Specifically,
Petitioner now insinuates that he was “detained” by
officers outside of the City building following his verbal
exchange with England and that the detention constitutes
“harassment,” such that he has a viable Equal Protection
claim.’ There are two problems with this insinuation.
First, while case law suggests that “harassment or other
conduct” might be sufficieaé te state a viable equal protec-
tion claim, it certainly does not stand for the proposition
that any inconvenience or perceived harassment — no

” Petitioner’s Complaint did not assert a Fourth Amendment
violation based on this detention, nor did he argue in any of his briefs at
the trial court level that the detention constituted “harassment”
sufficient to support his equal protection claim.

10

matter how de minimis - supports an equal protection
claim. Second, there is no support for Petitioner’s conten-
tion that he was “unlawfully” detained. Everyone agrees
that Petitioner initiated a discussion that led to “a hot and
heated night” in Falmouth City Council chambers’, that
England asked Petitioner to “step outside,” and that
Petitioner construed that as a threat to his personal safety.
(R. 44 R. Taylor at TR 78, Apx. p. 214) Everyone also
agrees that police officers and a councilmember followed
the two outside, separated them to prevent any physical
confrontation and to protect Petitioner, and told them
“there wasn’t going to be no fighting on this sidewalk.” (R.
44 R. Taylor at TR 93-96, 98, Apx. pp. 225-228, 230)
According to Petitioner, both he and England were de-
tained, though separately. (R. 44 R. Taylor at TR 94, Apx.
p. 226) While Petitioner apparently disagrees with the
way the situation was handled, he has offered no legal
authority to suggest that it was unreasonable as a matter
of law to handle the situation as the police officers did. As
such, Petitioner’s assertion that he was “unlawfully”
detained is without merit. More importantly, however, that
assertion simply does not support his Equal Protection

claim.”

As the courts below both correctly noted, the conduct
that Petitioner relies upon to establish his claims consists

* While Petitioner denies it was his fault things got heated, by his
own testimony he acknowledges that it “was a hot and heated night” at
Falmouth City Council chambers. (R. 44 R. Taylor at TR 78, 89, Apx.
pp. 214, 221)

* Plaintiff never asserted a claim for unlawful detention under the
Fourth or Fourteenth Amendment in his Complaint. Plaintiff never
named the alleged armed guards as Defendants; nor did he assert an
unlawful detention claim against the councilmember who went outside.

solely of speech. Specifically, Petitioner relies upon a single
verbal exchange between himself and Donald England. No
physical confrontation between Donald England and
Petitioner ever occurred; Councilmember Shields and a
police officer who was present when Defendant England
made his remark, each on their own initiative, went
outside to make sure that no such confrontation ensued.
Beyond this one verbal exchange that was initiated by
Petitioner, he cannot point to anything else in support of
his claims. The fact remains that Petitioner relies solely
on speech to establish both a First Amendment retaliation
claim and an equal protection violation. Under the legal
authority he himself cites, such evidence was insufficient
to overcome summary judgment. Having been unsuccess-
ful in two attempts to convince the courts that he could
sustain a claim, Petitioner now contends that the Sixth
Circuit misconstrued the law and failed to apply applica-
ble precedent. For the reasons explained herein, that
contention cannot succeed.

In sum, the courts below were correct to grant sum-
mary judgment to the City and Council Defendants on
Petitioner’s claims. Though cleverly couched in terms of
“conflicts” among the circuits and the failure to apply new
precedent from this Court, all that the Petition really
seeks is a review of the manner in which the Sixth Circuit
applied existing applicable precedent. There is no conflict
among the circuits, and the Sixth Circuit’s application of
the law to these facts is wholly consistent with the law as
applied by its sister circuits.

12

U. THERE IS NO JUSTIFICATION FOR THE EX-
ERCISE OF CERTIORARI ON PETITIONER’S
FIRST AMENDMENT CLAIM

Petitioner’s chief contention in support of certiorari is
that Burlington Northern & Santa Fe Ry. Co. v. White, 126
S.Ct. 2405 (2006), has been insufficient to eliminate the
so-called “division” among the circuit courts in applying
the second element of First Amendment retaliation claims.
(Petition, pp. 14-17) Petitioner’s contention lacks merit
and does not support a grant of certiorari.

A. THE HISTORY AND STANDARD AN-
NOUNCED BY THIS COURT IN BURLING-
TON NORTHERN

This Court’s decision in Burlington Northern resolved
a split among the circuits as to whether Title VII’s anti-
retaliation provision should be interpreted coterminous
with Title VII’s anti-discrimination provision, such that
the type of adverse employment action necessary to
support a retaliation case was limited to the type of
adverse employment action necessary to support a dis-
crimination case." Specifically, prior to Burlington North-
ern, some circuits applied an “ultimate employment
decision” standard in which retaliation was not actionable
unless it affected one of a narrow list of categories “such
as hiring, granting leave, discharging, promoting, and

* Title VII's anti-discrimination provision appears at 42 U.S.C.
§ 2000e-2 and forbids discrimination against any members of certain
protected groups “with respect to the terms and conditions of [their]
employment.” Title VII's anti-retaliation provision appears at 42 U.S.C.
§ 2000e-3 and forbids retaliation against an employee who has “op-
posed” a practice that is unlawful under Title VII’s anti-discrimination
provision.

13

compensating.” Other circuits held that retaliation was
actionable if it affected a “term or condition” of employ-
ment, “term or condition” being defined tie same in both
anti-discrimination and anti-retaliation cases. A few
circuits held that the scope of actionable retaliatory
conduct was broader than the scope of actionable discrimi-
natory conduct. See id. at 2410-2411. Of course, the re-
strictive standards applied by some circuits left open many
avenues for an employer to retaliate against an employee
for having participated in Title VII enforcement proceed-
ings without fear of liability.

In deciding Burlington Northern, this Court defined
the scope of actionable retaliatory conduct in a Title VII
context. The Court made clear that retaliatory conduct
does not necessarily have to affect an ultimate employ-
ment decision or a ierm or condition of employment to be
actionable, and that retaliatory conduct could, under the
right circumstances, be actionable even if it occurred
outside of the workplace. See id. at 2412-2414. In light of
this Court’s decision in Burlington Northern, an employee
can recover under 42 U.S.C. § 2000e-3 for retaliation
against her by her employer if the conduct would deter a
reasonable employee from making or supporting a charge
of discrimination. Jd. at 2415. This is a broader standard
than previously applied by many circuits in Title VII anti-
retaliation cases.

Despite its breadth, the standard annreunced’ in
Burlington Northern does not render ail retaliatory
conduct actionable in Title VII cases, a point that Peti-
tioner neglects to acknowledge. This Court was quite clear
on that point: |

14

The anti-retaliation provision protects an indi-
vidual not from all retaliation, but from retalia-
tion that produces an injury or harm.... In our
view, a plaintiff must show that a reasonable
employee would have found the challenged action
materially adverse, “which in this context means
it well might have dissuaded a reasonable
worker from making or supporting a charge of
discrimination.” ...

We speak of material adversity because we be-
lieve it is important to separate significant from
trivial harms. Title VII, we have said, does not
set forth a general civility code for the American
workplace.... An employee’s decision to report
discriminatory behavior cannot immunize that
employee from those petty slights that all employ-
ees experience.... The anti-retaliation provision
seeks to prevent employer interference with “un-
fettered access” to Title VII’s remedial mecha-
nisms.... It does so by prohibiting employer
actions that are likely “to deter victims of dis-
crimination from complaining to the EEOC, the
courts and their employers. And normally petty
slights, minor annoyances and simple lack of
good manners will not create such deterrence... .

We phrase the standard in general terms because
the significance of any given act of retaliation
will often depend upon the particular circum-
stances. Context matters ... Hence a legal stan-
dard that speaks in general terms rather than
specific prohibited acts is preferable, for an “act
that would be immaterial in some situations is
material in others.”

By focusing on the materiality of the challenged
action and the perspective of a reasonable person

15

in the plaintiff’s position, we believe this stan-
dard will screen out trivial conduct while effec-
tively capturing those acts that are likely to
dissuade employees from complaining or assist-
ing in complaints about discrimination.

Id. at 2414-2416 (citations omitted). Thus, actionable
retaliatory conduct in Title VII cases is now limited by one
consideration and one consideration only: whether, under
the circumstances, the retaliation was sufficient to deter a
reasonable employee from asserting or supporting a
charge of Title VII discrimination. This, of course, is
precisely the standard the Sixth Circuit applied in the
present case.

B. THERE IS NO “SPLIT” AMONG THE CIR-
CUITS WITH RESPECT TO WHETHER
VERBAL CONDUCT ALONE CAN SATISFY
THE “ADVERSE ACTION” ELEMENT OF
FIRST AMENDMENT RETALIATION CLAIMS

The broad standard adopted by this Court in Title VII
cases is essentially the same broad standard federal courts
have applied, even prior to Burlington Northern, in First
Amendment retaliation cases.

Specifically, federal courts universally hold that any
conduct. sufficient to deter a person of ordinary firmness
from continuing to speak out on a matter of public concern
satisfies the “adverse action” element of a First Amendment
retaliation claim. Petitioner’s intimation that the Second
Circuit is the only circuit to apply this standard is simply
inaccurate." Every federal circuit to have confronted a

" See Petition, pp. 12-13.

16

First Amendment retaliation case has applied this flexible
standard, both before and since this Court’s June 22, 2006
decision in Burlington Northern. See e.g., Zelnik v. Fashion
Inst. of Tech., 464 F.3d 217 (2nd Cir. 2006); Burkybile v.
Bd. of Educ., 411 F.3d 306 (2nd Cir. 2005); Thomas uv.
Independence Twnp., 463 F.3d 285 (3rd Cir. 2006);
O’Connor v. City of Newark, 440 F.3d 125 (3rd Cir. 2006);
Blankenship v. Manchin, 471 F.3d 523 (4th Cir. 2006);
Constantine v. Rectors & Visitors of George Mason Univ.,
411 F.3d 474 (4th Cir. 2005); Crocker v. City of Kingsville,
2006 U.S. Dist. LEXIS 51410 (S.D. Tex. July 26, 2006);
Izen v. Catalina, 398 F.3d 363 (5th Cir. 2005); Ctr. for Bio-
Ethical Reform, Inc. v. City of Springboro, 2007 U.S. App.
LEXIS 3689 (6th Cir. Feb. 20, 2007); Mezibou v. Allen, 411
F.3d 712 (6th Cir. 2005); Massey v. Johnson, 457 F.3d 711
(7th Cir. 2006); Framsted v. Mun. Ambulance Serv., 347
F. Supp. 2d 638 (W.D. Wisc. 2004); Osborne v. Grussing,
2007 U.S. App. LEXIS 4134 (8th Cir. Feb. 26, 2007); Revels
v. Vincenz, 382 F.3d 870 (8th Cir. 2004); Giannini v. Calif.
State Bar Assn., 2006 U.S. App. LEXIS 27975 (9th Cir.
Nov. 8, 2006); Mendocino Envtl. Ctr. v. Mendocino County,
192 F.3d 1283 (9th Cir. 1999); How v. City of Baxter
Springs, 2007 U.S. App. LEXIS 4083 (10th Cir. Feb. 22,
2007); Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836
(10th Cir. 2005); Pittman v. Tucker, 2007 U.S. App. LEXIS
381 (11th Cir. Jan. 9, 2007); Bennett v. Hendrix, 423 F.3d
1247 (11th Cir. 2005); Trudeau v. FTC, 372 U.S. App. D.C.
335 (2006).

Of course, and consistent with Burlington Northern,
some conduct undertaken to retaliate against a person for
his First Amendment expression will not be actionable
under this standard. Just as Title VII retaliation cannot be
premised on “trivial harms,” Burlington Northern, supra,

17

First Amendment retaliation “is not born of de minimis
threats or inconsequential actions.” Ctr. For Bio-Ethical
Reform, supra, citing Thaddeus-X v. Blatter, 175 F.3d 378
(6th Cir. 1999); see also Dawes v. Walker, 239 F.3d 489
(2nd Cir. 2001); McKee v. Hart, 436 F.3d 165 (3rd Cir.
2006); Balt. Sun Co. v. Ehrlich, 437 F.3d 410 (4th Cir.
2006); Morris v. Powell, 449 F.3d 682 (5th Cir. 2006); Bart
v. Telford, 677 F.2d 622 (7th Cir. 1982); Garcia v. City of
Trenton, 348 F.3d 726 (8th Cir. 2003); Brown v. Runnels,
2006 U.S. Dist. LEXIS 28658 (E.D. Cal. May 11, 2006);
How, supra; Bennett, supra. The “person of ordinary
firmness” standard “is an objective inquiry which is
flexible enough to accommodate the various circumstances
in which retaliation claims arise and which is capable of
screening the most trivial of actions.” Mitchell v. Chandler,
2006 U.S. Dist. LEXIS 71843 (W.D. Ky. Sept. 26, 2006),
citing Thaddeus-X, supra. See also Blankenship, supra;
Bennett, supra; Zelnik, supra.

Many specific instances of purely verbal” retaliatory
conduct fail to support a First Amendment retaliation
claim because they are simply insufficient to deter a
person of ordinary firmness from continuing to engage in

“ Petitioner contends there is a split among the circuits as to “the
proper standard for determining whether retaliatory verbal conduct
toward an ordinary citizen is actionable” in First Amendment retalia-
tion cases. To effectively evaluate whether such a split in fact exists,
one must necessarily isolate First Amendment retaliation cases
involving purely “verbal” retaliation. Identifying such cases is an issue
unto itself which begs the question: “Verbal,” as opposed to what? It is
not entirely clear whether retaliation continues to be “verbal” when it
extends beyond simple name-cailing to, for example, an unexecuted
threat, verbal release of private information about a plaintiff to a third
person, an accusation, or having a conversation about the plaintiff with
a third party.

18

protected conduct. E.g., Naucke v. City of Park Hills, 284
F.3d 923 (8th Cir. 2002) (harassing comments were offen-
sive, unprofessional and inappropriate but were insuffi-
cient to deter a person of ordinary firmness from
expressing political views); McKee, supra (remarks insuffi-
cient to deter person of ordinary firmness from continuing
to express views about the appropriate scope of an investi-
gation); Dawes, supra (being called a “rat” and “informant”
in retaliation for filing a grievance would not deter inmate
of ordinary firmness from making further grievances);
Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir. 1998)
(being “badmouthed” and threatened insufficient under
the circumstances to deter person of ordinary firmness
from engaging in protected conduct); Richardson uv.
Sherrer, 2007 U.S. Dist. LEXIS 4994 (D.N.J. Jan. 23,
2007) (idle threats of harassment are not actionable
retaliation).

Purely “verbal” retaliation is particularly susceptible
to falling short of the “person of ordinary firmness” stan-
dard because it presents a competition of First Amend-
ment rights. Specifically, both parties to retaliation cases
have rights under the First Amendment, and imposing
liability fox simple speech would infringe on the rights of
the public official whose speech is at issue. Suarez Corp.
Ind. v. McGraw, 202 F.3d 676 (4th Cir. 2002); Nunez v.
City of Los Angeles, 147 F.3d 867 (9th Cir. 1998); Chicago
Reader v. Sheahan, 141 F. Supp. 2d 1142 (N.D. Ill. 2001);
XMen Sec. Inc. v. Pataki, 196 F.3d 56 (2nd Cir. 1999);
Mezibov, supra.

However, no circuit rigidly holds that verbal retalia-
tion is per se insufficient to support a First Amendment
retaliation claim. Indeed, under appropriate circum-
stances, verbal retaliation may be sufficient to deter a

19

person of ordinary firmness from engaging in protected
conduct. For example, when verbal retaliation is part of a
campaign of harassment, it is generally actionable. In
Barth, supra, a city employee opposed the incumbent
mayor in an election. She alleged that the mayor orches-
trated a campaign of petty harassments —- including
baseless reprimands and ridiculing her for bringing a
birthday cake to the office — in retaliation for her political
ambitions. The Seventh Circuit denied summary judgment
to the mayor, explaining:

... We cannot say as a matter of law that the ex-
ercise of First Amendment rights by public em-
ployees cannot be deterred by subjecting
employees who exercise them to harassment and
ridicule through selective enforcement of work
rules. The effect on freedom of speech may be
small, but since there is no justification for har-
assing people for exercising their constitutional
rights it need not be great in order to be action-
able. Yet even in the field of constitutional torts
de minimis non curat lex. Section 1983 is a tort
statute. A tort to be actionable requires injury. It
would trivialize the First Amendment to hold
that harassment for exercising the right of free
speech was always actionable no matter how
unlikely to deter a person of ordinary firmness
from that exercise — that if the Mayor of Spring-
field had frowned at Miss Bart for running for
public office he would be liable for damages (un-
provable, of course) under section 1983. However,
more is alleged here — an entire campaign of har-
assment which though trivial in detail may have
been substantial in gross. It is a question of fact
whether the campaign reached the threshold of
actionability under section 1983.

20

Id. See also Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002);
Thomas, supra; McBride v. Village of Michiana, 100 F.3d
457 (6th Cir. 1996) (pervasive verbal harassment and
threats sufficient to deter First Amendment activity);
Allen v. Scribner, 812 F.2d 426 (9th Cir. 1987); Pittman,
supra.

The authorities contained in the Petition do not
support the existence of a per se rule in any jurisdiction.
Of the authorities Petitioner cites as providing the position
of the Fifth and Ninth Circuits, only two — Gilbrook v. City
of Westminster, 177 F.3d 839 (9th Cir. 1999), and Nunez,
supra — are actually First Amendment retaliation cases.”
In Gilbrook, the alleged retaliation was lost job and lost
pay — not merely verbal conduct. Nunez applies the “per-
son of ordinary firmness” test and concludes that, under
the circumstances of that case, the verbal conduct alleged
was insufficient. Similarly, the authority Petitioner cites
as the Fourth Circuit’s position — Suarez, supra — does not
represent a per se rule. The Suarez Court recognized that
verbal conduct by public official could be actionable if it
contained a threat, coercion, or intimidation, or if it was
sufficiently embarrassing because of the disclosure of
private information, or if it affects another more tangible
interest. This is simply another way of saying that verbal
conduct may be sufficient to deter a person of ordinary
firmness, depending on the context and circumstances.
Thus, Suarez is entirely consistent with other jurisdictions
in applying the “person of ordinary firmness” standard.

* Petitioner also cites Bender v. Brumley, 1 F.3d 271 (5th Cir.
1993), and Coyle v. Hughs, 436 F. Supp. 591 (W.D. Ok. 1977). (Petition,
p. 12) Neither involves the First Amendment or retaliation in any
context.

21

There is no split among the circuits with regard to the
sufficiency of verbal conduct to establish a First Amend-
ment retaliation claim. The different results reached by
the federal courts — sometimes two federal courts in the
same circuit — in cases involving verbal retaliation simply
reflects the fact-specific nature of the applicable standard
and is proof that the standard is working as it should.

In the present case, the Sixth Circuit and the district
court both clearly understood and correctly applied the
“person of ordinary firmness” standard. Both reviewed the
evidence extensively and concluded that a person of
ordinary firmness would not have been deterred from
addressing the Falmouth City Council simply because
Donald England, on one occasion, called him a black
bastard and threatened to engage him in a fist fight. That
conclusion is appropriate inasmuch as retaliation cases
are not intended to enforce a general civility code, but only
to prevent conduct that would deter a person of ordinary
firmness from engaging in protected conduct. Burlington
Northern, supra. What Petitioner essentially seeks from
this Court is a third application of the established stan-
dard — but with a different outcome. Clearly, that is not
the purpose of certiorari. Supreme Ct. R. 10.

Ill. THE “HARASSMENT OR OTHER CONDUCT”
REQUIREMENT IN EQUAL PROTECTION
CASES PREMISED ON A RACIAL SLUR IS
CONSISTENT WITH ARLINGTON HEIGHTS

To prevail on a claim under the Equal Protection
Clause, a plaintiff must establish both discriminatory
effect and discriminatory purpose. Village of Arlington
Hts. v. Met. Hous. Dev. Corp., 429 U.S. 252 (1977) (“Offi-
cial action will not be held unconstitutional solely because

22

it results in a racially disproportionate impact.... A
racially discriminatory intent ... must [also] be shown.”);
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538
U.S. 188 (2003).

Discriminatory purpose may be established by refer-
ence to statements attributable to the person or entity
accused of violating the plaintiff’s rights. E.g., Arlington
Hts., supra at 268; Sylvia Dev. Corp. v. Calvery Corp., 48
F.3d 810 (4th Cir. 1995); Elston v. Talladega Co. Bd. Of
Educ., 997 F.2d 1394 (11th Cir. 1993); McKee v. Rockwall,
877 F.2d 409 (5th Cir. 1989); Carrasca v. Pomeroy, 313
F.3d 828 (3rd Cir. 2002). Discriminatory purpose, however,
is only half of the equation in Equal Protection analysis. A
plaintiff is still required to demonstrate a discriminatory
effect.

For that reason, federal courts faced with the utter-
ance of racially charged statements by public officers have
refused to impose liability unless the plaintiff can show
that the officer in question treated him differently in some
other respect. Generally, harassment or some other con-
duct on the part of the officer that violates the plaintiff’s
rights is sufficient to establish discriminatory effect. Such
was the Fifth Circuit’s reasoning in Williams v. Bramer,
180 F.3d 699, 706 (5th Cir. 1999):

We hold today that an officer’s use of a racial epi-
thet, without harassment or some other conduct
that deprives the victim of established rights,
does not amount to an equal protection violation.
When leveled against a citizen by a police officer,
a racial epithet, by its nature, calls attention to
the citizen’s racial identity. The use of an epithet
is therefore strong evidence that a comment or
action is racially motivated. The question in the

23

equal protection context, however, is not just
whether the conduct is racially motivated but
also whether that action deprives a person of
“equal protection of the laws.” ... Where the
conduct at issue consists solely of speech, there is
no equal protection violation.

See also Salley v. PA Dept. of Corr., 181 Fed. Appx. 258
(3rd Cir. 2006) (no equal protection violation, despite
alleged use of slur, in the absence of evidence that plaintiff
was treated differently); Keyes v. Albany, 594 F. Supp.
1147 (N.D.N.Y. 1984) (“An equal protection violation will
be found when racial animus inspires police misconduct”);
Anderson v. Kierstead, 2006 U.S. Dist. LEXIS (D.N.J. Feb.
6, 2006); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 1999);
Buckley v. Gomez, 1999 U.S. App. LEXIS 129 (9th Cir. Jan.
4, 1999).

Requiring an Equal Protection plaintiff to show
harassment or some other conduct that violates his rights
is not, as Petitioner claims, a “heightened evidentiary
harassment threshold.” Rather, that requirement simply
reflects the fact that an Equal Protection claim is com-
prised of two elements, i.e., discriminatory purpose and
discriminatory effect. By imploring this Court to premise
Equal Protection liability on a single racially charged
statement, Petitioner essentially seeks to eliminate the
discriminatory effect component of such a claim. Clearly,
Petitioner’s position is contrary to the well-established
precedent of this Court. Arlington Hts., supra; Cuyahoga
Falls, supra.

Nor is there any wisdom to further defining the type
of “harassment” sufficient to constitute discriminatory
effect, as Petitioner suggests. (Petition, pp. 27-29) The
number and variety of scenarios that could comprise

24

harassment are not subject to reasonable prediction and
therefore cannot be easily articulated as a test. Thus, any
attempt to define a set of circumstances that constitute
harassment will likely exclude worthy claims. The better
approach, in cases where any evidence of harassment
exists, is to allow a jury to determine the issue of harass-
ment, where any evidence of such harassment exists.
Federal courts already take that approach. E.g., Johnson
v. Johnson, 385 F.3d 503 (5th Cir. 2004); Abuhouran v.
Acker, 2005 U.S. Dist. LEXIS 12864 (E.D. Pa. June 29,
2005); Martin v. City of San Antonio, 2006 U.S. Dist.
LEXIS 54392 (W.D. Tex. July 25, 2006); Cannon v. Burky-
bile, 2000 U.S. Dist. LEXIS 14139 (N.D. Ill. Sept. 25,
2000). The present case simply was not one in which any
evidence of harassment existed, no matter how many
different ways Petitioner tries to manipulate the facts.

IV. PETITIONER HAS PRESENTED NO JUSTIFI-
CATION FOR THE GRANT OF CERTIORARI
AS AGAINST THE CITY OF FALMOUTH

Although Petitioner identifies the City of Falmouth in
the “Parties to the Proceeding” section of the Petition, he
has presented no argument that the Sixth Circuit erred in
granting summary judgment to the City. As such, there is
no justification for the grant of certiorari as against the
City of Falmouth.

4
_

CONCLUSION

In light of the foregoing, there is no compelling reason to
grant the Petition for Writ of Certiorari The Sixth Circuit’s
decision in this matter does not conflict with Burlington

25

Northern, supra, or with any other decision of this Court, nor
does the Sixth Circuit’s decision conflict with any decision of
any other circuit court on any important question of federal
law. To the contrary, the Sixth Circuit relied on well-
established principles of law and applied those principles to
the facts of this case, which it construed in a light most
favorable to Petitioner. Stripped of its claims of conflict
among the circuits, the Petition’s real contention is that the
Sixth Circuit misapplied legal principles, resulting in an
incorrect decision. Of course, Petitioner’s assessment in this
regard is wholly inaccurate. However, even if Petitioner’s
assessment were accurate, Supreme Court Rule 10 provides
that the misapplication of established legal principles is not
a compelling reason to grant a petition for writ of certiorari.
Therefore, Respondents, England and the City of Falmouth
respectfully request that the Court deny the Petition for Writ
of Certiorari in this case.

Respectfully submitted,

MARY ANN STEWART,
Counsel of Record
JENNIFER L. LANGEN
ADAMS, STEPNER, WOLTERMANN
& DUSING, P.L.L.C.
40 West Pike Street, P.O. Box 861
Covington, KY 41012-0861
(859) 394-6200
(859) 291-7902 Fax

Attorney for Respondents,
City of Falmouth, Kentucky,
and Donald England

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2086%3A2. Public record. Not legal advice.