Opposition Brief — Huffman v. County of Los Angeles

Supreme Court, U.S.

FILE OD

FEB 22 1009

No. 98-1159

In The

Supreme Court of the United States

October Term, 1998

¢—

GERALD HUFFMAN, et al

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

RESPONDENTS’ BRIEF IN OPPOSITION

e—

Rickie Ivie MArTIN STEIN

SUSAN E. AMERSON

Ivie, McNenm & Wyatt

201 North Figueroa

Street

Suite 810

Los Angeles, California

90012-2631

(213) 482-8890

Attorneys fi

County of Los Ange

Timotuy T. Coates

Counsel of Record

Barry M. Wou:

GREINES, MArtTIN, STEIN &

RICHLAND LLP

9601 Wilshire Boulevard

Suite 544

Beverly Hills, California

90210-5207

(310) 859-7811

ry Respondents

les and Sherman Block

COCKLE LAW BRIEF PRINTING <

OR CALL C(

1LLEC

T (4

TABLE OF CONTENTS

Page

So rere Oe ee So Say ee o's Sal signe aie A l

EAE Ge NRE A occ cde eh ee rece eee l

a ORR ce ps coe ee ee ei eae e's s l

> rn CMC. cry decuwed eat res bee eee 3

REASONS FOR DENYING THE WRIT............. 4

I. THE OUTCOME OF THIS CASE WOULD NOT

BE AFFECTED EVEN IF THIS COURT RULED

IN PETITIONERS’ FAVOR ON THE QUESTION

PUREE a iwc G sea ska eet s cata e eee e woes ee 4

A. The Court Of Appeals Held Causation Lack-

ing, So There Is No Need To Decide Whether

A Public Entity Can Be Subjected To Consti-

tutional Liability For Injuries Inflected By A

Private Actor On A Member Of The General

B. This Court Should Not Be Misled By Peti-

tioners’ Attempt To Conflict Causation With

The Potential Scope Of Fourteenth Amend-

gE) Bi Nee oe rere mrs e tee 6

Ig PE. « DS

Il. PETITIONERS ARE WRONG ON THE MERITS

BECAUSE THE COURT OF APPEALS COR-

RECTLY CONCLUDED THAT THE INCIDENT

WAS UNFORESEEABLE AS A MATTER OF

LAW, SO CAUSATION WAS LACKING........ 8

eo GAL. fr ree ies eee ee eek 12

TABLE OF AUTHORITIES

Page

Cases

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ..... 2

Martinez v. California, 444 U.S. 277 (1980)............. 6

Orange County Employees Assn. Inc. v. County of

Orange, 17 Cal.Rptr.2d 695 (1993) ...........0...... 9

Van Ort v. Estate of Stanewich, 92 F.3d 831 (9th Cir.

nj EP AP OV a 7

2 USC. § 1254)... eee 1

42 USC, § 1983.5... eee 14,5

JURISDICTION

Respondent County of Los Angeles does not contest

this Court's jurisdiction over this petition pursuant to 28

U.S.C. § 1254/1).

STATEMENT OF THE CASE

Respondent County of Los Angeles (“County”)

respectfully submits that the published opinion of the

United States Court of Appeals for the Ninth Circuit

contains an accurate description of the substantive and

procedural facts in this action. (Pet. App. 1-5.)

However, because petitioners have discussed these

facts at length, but not always correctly, the County will

provide a brief overview of the case. The overview will

also show that the Court of Appeals held proximate cause

lacking. This holding was not only correct, but it renders

irrelevant petitioners’ “Question Presented,” which per-

tains only to the scope of Fourteenth Amendment “sub-

stantive” due process.

A. Procedural Facts

This case arose when Thomas Kirsch, an off-duty Los

Angeles County deputy sheriff, shot and killed John

Huffman during a barroom brawl. (Pet. App. 2.) Huff-

man’s parents, Gerald Huffman and Gunilla Lukse (“the

Huftmans”) brought a 42 U.S.C. § 1983 action against the

County of Los Angeles and Sheriff Sherman Block (“the

County”). (Pet. App. 4.) The Huffmans also sued Thomas

Kirsch, but settled with him for $300,000 before trial. (Pet.

App. 5 n.2.)

The Huffmans asserted that the County had violated

their rights under the substantive due process clause of

the Fourteenth Amendment by “devot[ing] insufficient

attention to the unlawful use of firearms by off-duty

deputies.” (Pet. App. 5.) After the close of the Huffmans’

case, and again after the close of the County’s case, the

County moved for judgment as a matter of law under

Rule 50 of the Federal Rules of Civil Procedure. However,

the motions were denied despite the fact that the trial

court determined as a matter of law that Kirsch was not

acting under color of law. (Pet. App. 5-7.)

The jury returned a special verdict awarding the

Huftfmans $750,000 in damages. The County renewed its

Rule 50 motion, which was once again denied. The dis-

trict court entered judgment for the Huffmans in the

amount of $450,000 after subtracting the $300,000 settle-

ment paid by Kirsch. The County filed a motion for new

trial and again renewed its Rule 50 motion, but both

motions were denied. (Id.)

The County appealed, and the judgment was

reversed and remanded with directions to dismiss

“[b]ecause Kirsch’s private acts were not foreseeable by

the County, and did not occur under color of law.” (Id. at

15.) The Court of Appeal specifically refused to decide whether

an injury caused by a state-created danger to the general public

can give rise to liability under the Fourteenth Amendment. (Id.

at 14-15 n.4.) Following the denial of their petition for

rehearing and suggestion for rehearing en banc, the Huff-

mans petitioned for certiorari.

B. Substantive Facts

Around 7:00 on the evening of August 14, 1994, off-

duty Los Angeles County sheriff’s deputy Thomas Kirsch

went to Whitney’s Steakhouse, a bar-restaurant. Kirsch

had brought his official identification, and was also carry-

ing his personal, off-duty revolver in the waistband of his

pants. The gun was loaded with departmentally-issued

ammunition. Kirsch, who had been drinking earlier in the

day, continued to do so. (Pet. App. 1.)

Around 8:00, John Huffman and his girlfriend, Deena

Hughes, arrived at Whitney’s. In a little over an hour,

they drank two or three beers each and shared a

“kamikaze,” a mixed hard liquor drink. Huffman and

Hughes, who did not know Kirsch, began to engage him

in conversation. Kirsch did not tell them he was a sher-

iff’s deputy, but stated he owned an air conditioning

company. (Pet. App. 2-3.)

Huffman and Kirsch’s interactions became increas-

ingly more combative, and Huffman eventually offered

Kirsch $40.00 to “ ‘go out and settle this.’ ” (Pet. App. 3.)

At some point, Kirsch said “ ‘I’m going to go for it,’ or

some similar remark.” (Id.)

Huffman eventually left the bar and Kirsch followed

by a different route. After Kirsch walked out the door, he

was taken to the ground by Huffman, a high school and

college wrestler. Kirsch never gave Huffman any com-

mands, nor did Kirsch identify himself as a peace officer.

Kirsch and Huffman struggled, Kirsch’s weapon came

out, he got hold of it and fatally shot Huffman. (Pet. App.

3-4.)

Kirsch was subsequently found to have a blood-alco-

hol level of around .25% at the time of the shooting.

Huffman’s blood-alcohol level was .18% at the time of his

death. Huffman’s autopsy revealed that he had used

between “ ‘a third of a line and a line’ ” of cocaine within

four hours of the shooting. (Pet. App. 4.)!

+

REASONS FOR DENYING THE WRIT

This writ should be denied because deciding peti-

tioners’ question presented would not affect the outcome

of this case and because petitioners are wrong on the

merits.

I.

THE OUTCOME OF THIS CASE WOULD NOT BE

AFFECTED EVEN IF THIS COURT RULED IN PETI-

TIONERS’ FAVOR ON THE QUESTION PRESENTED.

A. The Court Of Appeals Held Causation Lacking, So

There Is No Need To Decide Whether A Public

Entity Can Be Subjected To Constitutional Liability

For Injuries Inflicted By A Private Actor On A

Member Of The General Pubtic.

Petitioners have presented the following question:

Whether municipal liability under 42 U.S.C.

§ 1983 may be predicated upon harm inflected

! Petitioners have included in their “Statement of the Case”

inaccurate assertions regarding purported Los Angeles County

Sheriff’s Department policies, customs and practices. (Pet. 3.)

These “facts” will be discussed in the argument section

demonstrating the Court of Appeals correctly held causation

lacking as a matter of law.

by a person who was not acting under color of

law but who was acting pursuant to a policy

and widespread custom and practice of a public

entity which created a danger to the public; or,

more specifically, where a county and its sheriff

require or encourage their off-duty deputy sher-

iffs to carry firearms at all times, including

when they are consuming alcohol, and there is a

widespread custom and practice of doing so,

may the county and its sheriff be held liable for

an unreasonable shooting of a person by an

intoxicated off-duty deputy sheriff even though

the policy, custom and practice were not

directed at specific individuals?

(Pet. i.)

Assuming arguendo this Court answered “yes,” the

outcome of this case would not change. Such a ruling

would permit a plaintiff to sue a public entity under

§ 1983 for injuries to a member of the general public

inflicted by a person who was not acting under color of

law but was still supposedly acting pursuant to the cus-

tom, policy or practice of the public entity. However, the

plaintiff would still have to show causation, which peti-

tioners failed to do.

Causation is an element of actions brought pursuant

to 42 U.S.C. § 1983. City of Canton, Ohio v. Harris, 489 U.S.

378, 385 (1989) (there must be a “direct causal link

between” a City policy, custom or practice and plaintiffs’

injuries). The Court of Appeals based its holding on the

absence of proximate cause, stating “we hold .. . that the

‘facts do not show, as a matter of law’ that the County

could have foreseen Kirsch’s ‘private acts’ when it

allegedly required him to carry a gun off duty.” (Pet.

App. 12.)

Because the Court of Appeals held proximate cause

was lacking, it would be pointless for this Court to

answer the question petitioners presented. Cf. Martinez v.

California, 444 U.S. 277, 284 (1980) (lack of causation made

it unnecessary to decide whether state parole officers

could potentially deprive plaintiff’s decedent of a consti-

tutional right by releasing a prisoner on parole). There-

fore, the petition for certiorari should be denied.

B. This Court Should Not Be Misled By Petitioners’

Attempt To Conflate Causation With The Potential

Scope Of Fourteenth Amendment Liability.

Petitioners argue the writ should be granted in order

to resolve a conflict between United States Circuit Courts

of Appeals regarding whether a public entity that creates

a danger to the general public, but not to an identifiable

individual, can be held liable under the Fourteenth

Amendment for a substantive due process violation. (Pet.

15-17.) The Court of Appeals recognized this conflict, but

expressly refused to become involved in it, stating

“[blecause [petitioners’] claim would fail regardless of

whether the danger-creation theory extended to threats to

the general public, we leave resolution of this question

for another day.” (Pet. App. 14-15 n.4.)

Petitioners concede the Court of Appeals “denied

that it was deciding that question.” (Pet. 5.) Petitioners

nonetheless assert that “the text of the opinion reveals

that it did in fact decide that the specific incident must be

predictable.” (Jd.) Petitioners appear to believe that such

a holding would effectively preclude public entity lia-

bility for injuries inflicted by private actors on members

of the general public.

Petitioners’ reasoning rests upon a faulty premise

because the Court of Appeals did not hold that “specific

incident[s] must be predictable.” (Id.) It held only that the

bizarre events in this case were not foreseeable. (Pet. App.

12.) These events were as follows:

(1) Before the incident, Kirsch consumed four or

five hard-liquor drinks, elevating his blood-

alcohol level to approximately .25%; (2) Kirsch

exchanged unpleasant words with Huffman in

the bar, after which Huffman exited the bar with

the intention of going home; (3) Kirsch followed

Huffman out of the bar by a separate route, even

though Kirsch knew that he had a gun tucked in

his belt and that Huffman was unarmed; and (4)

Kirsch shot Huffman in the chest as the men

wrestled outside the bar.

(Pet. App. 12.)

In holding these particular events unforeseeable as a

matter of law, the Court of Appeals expressly followed its

prior decision in Van Ort v. Estate of Stanewich, 92 F.3d 831

(9th Cir. 1996). (Pet. App. 12.) In that case, it rejected a

similar substantive due process claim brought by plain-

tiffs robbed by an off-duty peace officer who had previ-

ously been to their home. Van Ort, 92 F.3d at 833-34,

837. Because that officer’s equally bizarre acts were

“ “unforeseeable,” they broke the chain of proximate

cause... ..*° (Pet. App. 11.)

As in Van Ort, the Court of Appeals based its holding

in the present action on events peculiar to the case. For

this reason, there is no merit to petitioners’ assertion that

the decision precludes public entities from ever being

held liable under substantive due process for injuries to

members of the general public.

This court should reject petitioners’ misguided

attempt to drag this case into an inter-circuit conflict the

Court of Appeals explicitly avoided by deciding Kirsch’s

actions were not foreseeable. The petition for certiorari

should be denied.

Il.

PETITIONERS ARE WRONG ON THE MERITS

BECAUSE THE COURT OF APPEALS CORRECTLY

CONCLUDED THAT THE INCIDENT WAS

UNFORESEEABLE AS A MATTER OF LAW, SO CAD-

SATION WAS LACKING.

Petitioners contend that the “incident” involving

Kirsch and Huffman was “manifestly foreseeable.” (Pet.

5.) Petitioners, whose argument here (as in the Court of

Appeals) is constructed largely by distorting the record,

are wrong.

The linchpin of petitioners’ argument is that the

County purportedly “had notice of repeated instances of

misuse of firearms by intoxicated, off-duty deputy sher-

iffs.” (Pet. 6.) Specifically, petitioners contended that “the

department knew of eighty incidents from 1989 to 1994 in

which off-duty deputies discharged or brandished fire-

arms” and “[o]f these incidents, fifteen involved the use

of alcohol.” (Pet. App. 11-12.) However, since these inci-

dents occurred during a six year period on a 7500 officer

force, there was only “one alcohol-related shooting or

brandishing per 3000 deputies per year.” (Pet. App. 12

n.3.)

Only in petitioners’ attorney’s fevered imagination

could such infrequent misuse of firearms in connection

with alcohol amount to “notice of repeated instances of

misuse of firearms by intoxicated, off-duty sheriffs.” Most

significantly, these occasional incidents did not in the

least render it foreseeable that an off-duty deputy will go

into a bar, get extremely drunk, respond to a challenge to

fight, and then shoot his opponent! This is especially true

when the deputy is a 24 year veteran who is on the bomb

squad. (Excerpts of Record [“ER”] 146.1:9-16, 147:7-148:3,

196:3-5.)

Much of petitioners’ other “evidence” supposedly

bearing on foreseeability was also flawed or nonexistent.

For example, petitioners contend that the Sheriff's

Department “made a policy decision to refrain from

restricting the carrying of firearms by its off-duty deputy

sheriffs.” (Pet. 6.) This contention is wrong because Cali-

fornia law precludes the Sheriff’s Department from plac-

ing any restrictions on active deputies (such as Kirsch)

regarding the carrying of firearms off-duty. Orange

County Employees Assn., Inc. v. County of Orange, 17

Cal.Rptr.2d 695, 698-99 (1993). For this reason, the

Department cannot be held responsible for what peti-

tioners term “a longstanding and widespread custom

. that deputy sheriffs carried firearms while off duty

and while consuming alcohol.” (See Pet. 6.)

Petitioners also assert that the Sheriff’s Department

“had a policy which required and encouraged deputy

sheriffs to carry firearms at all times.” (Pet. 6.) In reality,

10

the Sheriff’s Department at one time had such a policy, but

the policy was eliminated in 1991 or 1992. (Id.) No evi-

dence in the record even suggests this policy was ever

reinstated.?

Plaintiffs allege the Sheriff's Department “had a

practice of failing to train, investigate, or impose appro-

priate discipline concerning the use of firearms by off-

duty deputy sheriffs.” (Pet. 6.) However, the undisputed

evidence showed that, since 1992, the Department has

conducted investigations of force use, including off-duty

shootings, which “evaluate the conduct of the officer both

from a policy standpoint, a tactical standpoint and a

training standpoint.” (ER 187:10-15, 188:5-8, 189:4-7.) If

the Department finds an officer uses unreasonable force,

the Department then considers appropriate discipline.

(ER 184:9-13.)

Petitioners themselves concede that the Sheriff's

Department requires that off-duty “deputies not be so

intoxicated that they are unable to care for themselves or

others.” (Pet. 7.) The Court of Appeals cited this regula-

tion as bolstering its conclusion that the Sheriff’s Depart-

ment could not have reasonably anticipated Kirsch’s

actions on the night he shot Huffman. (Pet. App. 13.)

The undisputed evidence further demonstrated that

the Sheriff’s Department trains its deputies not to carry

* Portions of Kirsch’s Answer to the complaint that were

admitted into evidence stated that he was permitted,

encouraged or required to carry a firearm at all times. However,

this material was admitted only to impeach Kirsch and was not

to be considered as substantive evidence. (ER 15:9-17,

203:2-204:10.)

| |

guns when drinking, not to become intoxicated in |

net to take police action while off duty unless thi

necessary and not to use excessive force. (ER 180:6-1'

181:6-10, 182:24-183:4, 190:2-13, 190:23-191:1, 192:19

[he Department also provides training and counseling

the dangers of alcohol abuse, and monitor ilcol

abuse or alcohol problems that deputies may hav

192.1:18-20, 192.2:8-19.)

Ultimately, petit*oners’ argument ri

proposition that because guns and alcohol di

mix’... it cannot be claimed that the danger of

ing them is unforeseeable.” (Pet. 15.) The above-describs

e\ idence clearly shows that the Los Angeles County S|}

iff's Department recognizes guns and alcohol d t

However, no one can reasonably argue that knowles

this general proposition enabled the Sheriff’s De

to foresee Kirsch’s criminally witless actior [he

the Court of Appeals’ decision w rre

For this reason too +} ‘ pet

ee

ienied