Opposition Brief — Van Ort v. Estate of Stanewich

Supreme Court. y S.

Ss ee oe ae

JAN 2 1997

No. 96-855

CLERK

In The

Supreme Court of the United States

October Term, 1996

’

DONALD VAN ORT; HELEN VAN ORT,

Petitioners,

ESTATE OF MICHAEL STANEWICH, deceased;

ANNA L. PREVOST, as Special Administratrix of

THE ESTATE OF MICHAEL STANEWICH; COUNTY

OF SAN DIEGO; AND SAN DIEGO SHERIFF’S

DEPARTMENT; AND DOES 1-20, INCLUSIVE,

Respondents.

*

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

«

RESPONDENT'S OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

¢

JoHN J. SANsone, County Counsel

County of San Diego

Diane Barpstey, Chief Deputy

Ricky R. SANcHEz, Deputy

1600 Pacific Highway, Room 355

San Diego, California 92101-2469

(619) 531-4749

Counsel for Respondent

County of San Diego

COCKLE LAW 3RIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Ninth Circuit Court of Appeals correctly

decided that the off-duty criminal conduct of a person

employed as a deputy sheriff does not give rise to munic-

ipal liability under 42 U.S.C. section 1983.

LIST OF PARTIES

Respondent is the County of San Diego, a public

entity and a political subdivision of the State of Califor-

nia.

iil

TABLE OF CONTENTS

Page

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re i CE dec aeteeteteccensecnves sede iii

TAREE CF AU TRTORITIBG 2.0 ccc ccccccccecccscvcces iv

EE SG oh os opt ue bes eucesesveeevees 1

Deeunamemews GE Evite CARE... ccccvccccccsencess l

REASONS TO DENY THE WRIT .................. 4

I. THERE IS NO CONFLICT BETWEEN THE

CIRCUITS OR WITH PRECEDENT OF THIS

i Sieh With seein ec ade teat eeeneENné ous 4

Il. THIS CASE PRESENTS NO IMPORTANT QUES-

TION OF FEDERAL LAW AND WAS FULLY

CONSIDERED AND CORRECTLY DECIDED

Eee cc Sn CoV enebieebevesdeeeséescceveves 9

iv

TABLE OF AUTHORITIES

Page

Cases

Alexander v. City and County of San Francisco, 29

AUB) 8 ee | er ere 7

Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988)........ 6

Canton v. Harris, 489 U.S. 378 [103 L.Ed.2d 412]

CODD) oo ov ocnke dacccesudntdesensksdiabicae 6, 8, 10

Davis v. City of Ellensburg, 869 F.2d 1230 (9th Cir.

SOO D i a cv ciwartevevcesenssssse0nsibcesleste 7

DeShaney v. Winnebago Soc. Serv., 489 U.S. 189 [103

Be re rr ror ee 5, 9

L.W. v. Grubbs, 974 ¥.2d 119 (9th Cir. 1992)........... 5

Martinez v. California, 444 U.S. 277 [62 L.Ed.2d 481]

CORD vvcice cesacbeaedeKeviesas cae aeesteeaeese ess 9

Monell v. Dept. of Social Services of New York, 436

US. Gi 6 L.BdSd G18] (397E) .. ov eccaccesviecsces 6

Montiel v. City of Los Angeles, 2 F.3d 335 (9th Cir.

Seren es Seem edge MER i anmato mel) Se eRe 7

Oklahoma City of Tuttle, 471 U.S. 808 [85 L.Ed.2d

FOSS COMED dsc veccievedenscdudacteucesensxcesnestes 8

Oviatt By and Through Waugh v. Pearce, 954 F.2d

oe errr TT Pert Treen cir 6

Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993)......... 5

Rizzo v. Goode, 423 U.S. 362 [46 L.Ed.2d 561] (1976) ..... 6

Screws v. United States, 325 U.S. 91 [89 L.Ed.2d

BERe Ce 002 v cho kb bskvibeksed vehicles 5

v

TABLE OF AUTHORITIES - Continued

Page

Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994)............ 7

Van Ort v. Estate of Michael Stanewich, 92 F.3d 831

Sees Soe, PINs oo nsincknnke decnepacchyrctieekes i Pe

Vang v. Xiong X. Toyed, 944 F.2d 476 (9th Cir. 1991) ..... 4

West v. Atkins, 487 U.S. 42 [101 L.Ed.2d 40] (1988)..... 4

TO THE HONORABLE SUPREME COURT:

Defendant/respondent County of San Diego, a politi- —

cal subdivision of the State of California, submits this

brief in opposition to the petition for a writ of certiorari

submitted by plaintiffs/petitioners Donald Van Ort and

Helen Van Ort.!

INTRODUCTION

Petitioners, Donald Van Ort and Helen Van Ort, have

petitioned for review of the published decision of the

Ninth Circuit Court of Appeals affirming the district

court’s judgment in favor of respondent. Respondent

County of San Diego respectfully requests that the Van

Orts’ petition be denied. Petitioners fail to establish that

the Court of Appeals’ decision is in conflict with the

decisions of other circuits or with precedent of this court

or that this case presents an important question of federal

law which requires review by this Court.

s

STATEMENT OF THE CASE

On July 3, 1991, Michael Stanewich (“Stanewich”), an

off-duty San Diego County Sheriff's deputy, wearing

civilian clothes, a mask and latex gloves, and brandishing

a gun, forcibly entered the residence of Donald Van Ort

and his grandmother, Helen Van Ort, to rob them. While

' The respondent does not contest the petitioners’

statement of jurisdiction.

committing armed robbery, Stanewich was shot and

fatally wounded by a uniformed deputy sheriff who went

to the residence in response to an emergency call of a

crime in progress.

About a month earlier, on May 30, 1991, Stanewich

and other Sheriff's deputies searched the Van Orts’ resi-

dence for narcotics pursuant to a Fourth Amendment

waiver provision in Donald’s parole order. During that

search, Donald Van Ort opened a safe containing cash.

Stanewich was hired as a deputy sheriff on January 9,

1981, following a pre-employment background investiga-

tion. On September 21, 1990, he received a detective

assignment. His duties included investigating narcotics

violations.

During his 10-year service as a deputy sheriff, Stan-

ewich had three department-generated complaints and

nine citizen-generated complaints lodged against him.

Only three of the citizen complaints were sustained. (Trial

Exhibit 5 in Van Orts’ Excerpts of the Record “V.O.E.R.”

Vol. Il, Tab “T” 24-5 §§ 1 through 12; Supplemental

Excerpts of the Record “S.E.R.” 2 and 3 augment T24-5

§§ 6 and 8.) The last citizen complaint against him was

lodged in 1988.

Prior to trial, the district court granted partial sum-

mary judgment, ruling that the County was not vicari-

ously liable for Stanewich’s robbery attempt because he

was neither in the course and scope of employment nor

acting under color of law.

After the close of all evidence, but before the case

was submitted to the jury, the district court granted the

County judgment as a matter of law on the Van Orts’

state law tort claim for negligent hiring. The Court of

Appeals affirmed, and petitioners do not seek review of

that decision.

The district court allowed the Van Orts’ federal

municipal civil rights claim against the County, brought

under 42 U.S.C. section 1983 (“section 1983”), to go to the

jury, which returned their verdict against the County.? In

a special verdict, the jury found that the County had

official policies that were inadequate in that they failed to

consider and review disciplinary actions at the time of

transfer, assignment, or promotion of officers; and failed

to include a specific system for warning supervisors

about officers with patterns of misconduct.

Fcllowing the jury’s verdict, the County moved to set

aside the verdict on the Van Orts’ section 1983 claim. The

district court granted the County’s motion and the Van

Orts appealed. The Court of Appeals affirmed, holding

that there was no basis for imposing section 1983 liability

because Stanewich’s off-duty conduct was not state

action under color of law; there was no affirmative gov-

ernment act that created any duty to protect the Van Orts

from harm; and Stanewich’s private actions as a free-

lance criminal were not reasonably foreseeable. Van Ort v.

Estate of Michael Stanewich, 92 F.3d 831, 836-837 (9th Cir.

1996).

2 The jury also found the Estate of Michael Stanewich liable

on various tort theories.

REASONS FOR DENYING THE WRIT

I. THERE IS NO CONFLICT BETWEEN THE CIR-

CUITS OR WITH PRECEDENT OF THIS COURT

Petitioners urge that their petition for writ of cer-

tiorari should be granted because there is a conflict

between the circuits and within the Ninth Circuit Court

of Appeals regarding what constitutes state action under

color of law. Petitioners are mistaken.

Consistent with this Court’s precedent, the Court of

Appeals determined that Stanewich’s conduct on July 3,

1991, was not “under color of state law” because he was

not acting “in his official capacity or while exercising his

responsibilities [as a deputy sheriff] pursuant to state

law.” West v. Atkins, 487 U.S. 42, 50 [101 L.Ed.2d 40]

(1988).

Contrary to Petitioners’ assertions, Vang v. Xiong X.

Toyed, 944 F.2d 476 (9th Cir. 1991), is not inconsistent with

the Court of Appeals decision herein. Defendant Xiong

was deemed to have acted under color of law because he

used his employment status to get his clients to accom-

pany him on car trips, during which he raped them. In

the present matter, Stanewich forcibly entered the peti-

tioners’ residence to commit the robbery without the use

of any indicia of police authority. His robbery attempt

was in no way connected to his duties or responsibilities

as a duty sheriff. Rather, Stanewich was engaged in a

personal pursuit. (C.R. 111.) The only fact distinguishing

this robbery from any ordinary armed robbery was that

the robber was an off-duty deputy sheriff. This distinc-

tion is without consequence because acts of police officers

in the ambit of their personal pursuits are excluded from

the term “color of law.” Screws v. United States, 325 U.S. 91

[89 L.Ed.2d 1495] (1945).

The Court of Appeals decision which affirmed the

district court’s finding that Stanewich was a private actor

when he attempted to rob petitioners is consistent with

all applicable precedent. In so deciding, the Court of

Appeals specifically recognized the principle enunciated

by this Court in DeShaney v. Winnebago Soc. Serv., 489 U.S.

189, 195 [103 L.Ed.2d 249] (1989), that constitutional lia-

bility does not generally extend to deprivations of life,

liberty, or property caused by private actors. Referring to

precedent from within and outside the Ninth Circuit, the

Court of Appeals found that absent the existence of a

special relationship between the individual and the gov-

ernment from which a duty to protect arises, or affirma-

tive conduct by the government that places the individual

in immediate peril, “members of the public have no con-

stitutional right to sue state employees who fail to protect

them against harm inflicted by third parties.” L.W. v.

Grubbs, 974 F.2d 119, 121 (9th Cir. 1992); see also Reed v.

Gardner, 986 F.2d 1122, 1127 (7th Cir. 1993). Neither of

these two special circumstances existed in this case.*

Thus, the Court of Appeals, consistent with precedent,

correctly decided that Stanewich’s actions on July 3, 1993,

were not under color of law. Petitioners cite no decision

of a circuit court which is in conflict with the opinion of

the Court of Appeals in this matter.

3 Petitioners suggest that because knowledge was imparted

to Stanewich through his job, his later off-duty criminal conduct

becomes conduct under color of law. No case has ever approved

such a theory.

Petitioners next assert that this court should grant

review because there is a conflict among the circuits

regarding what must be proved to establish causation in a

section 1983 case. Petitioners are incorrect. It is well set-

tled that a municipality may not be held liable under

section 1983 solely because it employs an individual later

found to have deprived a citizen of constitutional rights.

Monell v. Dept. of Social Services of New York, 436 U.S. 691

[56 L.Ed.2d 611] (1978). Only when a municipality's exe-

cution of an official policy or custom inflicts a constitu-

tional injury may the government entity be liable under

section 1983. Id.

The standard for causation in Monell liability cases,

as expressed by this Court, is that the alleged deficient

official policy or custom be “the moving force” behind

the constitutional injury. Canton v. Harris, 489 U.S. 378,

389 [103 L.Ed.2d 412] (1989); Oviatt By and Through Waugh

v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). The munici-

pal policy maker must have known or could be said to

have reasonably known that the policy would set into

motion a series of acts that would cause others to inflict

the constitutional injury. Bateson v. Geisse, 857 F.2d 1300,

1304 (9th Cir. 1988). The evidence must establish an affir-

mative link between the harm and the adoption of a plan

or policy. The link must show the policy maker’s authori-

zation or approval of the resulting misconduct, Rizzo v.

Goode, 423 U.S. 362, 371 [46 L.Ed.2d 561] (1976), thereby

establishing that the policy was “closely related to the

ultimate injury.” Canton v. Harris, 489 U.S. at 391.

In this case, the Court of Apveals used the standard

test of proximate cause in its analysis, which is consistent

with this Court’s precedent and the decisions of other

circuits. An official policy or custom is the proximate

cause if the resultant constitutional injury is foreseeable.

Van Ort v. Estate of Stanewich, 92 F.3d at 840. Shaw v.

Stroud, 13 F.3d 791, 799 (4th Cir. 1994), which petitioners

cite in urging review, held, consistent with the Court of

Appeals decision in this case, that proximate cause is the

standard for section 1983 liability. Petitioners cite no

cases contrary to this accepted standard.

Petitioners sought to establish an official custom

which caused their injuries, relying solely on the alleged

disregard of Stanewich’s disciplinary history. The pur-

ported custom was the County’s alleged failure to con-

sider and review disciplinary histories at the time of

transfer, assignment, or promotion of officers; and failure

to include a specific system for warning supervisors

about officers with patterns of misconduct. The gist of

petitioners’ argument is that but for Stanewich’s assign-

ment to narcotics investigations, and the knowledge he

gained about the petitioners from that assignment, he

would never have met petitioners and attempted to rob

them.

Although the Court of Appeals did not specifically

decide whether any custom existed,* it did expressly

4 Because the trial evidence was confined to Stanewich’s

disciplinary history, it was insufficient as a matter of law to

support a Monell claim based on a widespread official custom.

Alexander v. City and County of San Francisco, 29 F.3d 1355,

1367-68 (9th Cir. 1994); Cf. Montiel v. City of Los Angeles, 2 F.3d

335, 342-343 (9th Cir. 1993) [mishandling of the plaintiff's own

citizen complaint would not establish that the city had a “policy

or practice . . . of deliberate indifference to police brutality.” ];

Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir. 1989)

reject petitioners’ “but for” causation argument, which

type of argument has been consistently recognized as

insufficient for causation in a section 1983 case. Van Ort v.

Estate of Stanewich, 92 F.3d at 840. Chief Justice Rehnquist,

in Oklahoma City v. Tuttle, 471 U.S. 808 [85 L.Ed.2d 791]

(1985), explained the fallacy of the Van Orts’ contention:

“Obviously, if one retreats far enough from a

constitutional violation some municipal ‘policy’

can be identified behind almost any such harm

inflicted by a municipal official; for example,

Rotramel [the police officer] would never have

killed Tuttle if Oklahoma City did not have a

‘policy’ of establishing a police force.” (Id. at

823.)

In Canton v. Harris, 489 U.S. 378, this court reiterated

that it is insufficient merely to suggest in hindsight that,

if some different policy existed, the unfortunate event

might have been prevented:

“In virtually every instance where a person

has had his or her constitutional rignis violated

by a city employee, a § 1983 plaintiff will be able

to point to something the city ‘could have done’

to prevent the unfortunate incident. (Citation

omitted.) Thus, permitting cases against cities

for their ‘failure to train’ employees to go for-

ward under § 1983 on a lesser standard of fault

would result in de facto respondeat superior

liability on municipalities — a result we rejected

in Monell (citation omitted).” (Id. at 392.)

(same standard applies to training and supervision); Canton v.

Harris, 489 U.S. at 391.

None of the cases petitioners cite are contrary to the

standard of causation correctly utilized by the Court of

Appeals in this matter. There is no compelling reason for

this court to review the Court of Appeals’ decision.

Il. THIS CASE PRESENTS NO IMPORTANT QUES-

TION OF FEDERAL LAW AND WAS FULLY CON-

SIDERED AND CORRECTLY DECIDED BELOW

Petitioners assert that this case presents an important

question of federal law by summarily concluding that the

issues presented frequently arise and because persons

injured by the off-duty conduct of government officials

should receive compensation. Although the facts in this

case are interesting, the case does not present a nove!

legal issue. Petitioners’ contentions do not satisfy tne

requirement of Supreme Court Rule 10, that petitioners

identify a compelling reason to justify granting of their

petition for writ of certiorari.

The courts below correctly decided that the trial evi-

dence did not satisfy the foreseeability requirement for

causation, as a matter of law. The casual connection

between the knowledge Stanewich obtained from his

assignment to narcotics investigations and his robbery of

the Van Orts is too attenuated and remote for any civil

rights liability to arise therefrom. See e.g., Martinez v.

California, 444 U.S. 277, 285 [62 L.Ed.2d 481] (1980);

DeShaney v. Winnebago Soc. Serv., 489 U.S. at 197 n.4.

Stanewich’s disciplinary record did not make foresee-

able the violent and malicious acts he would commit

against petitioners. During Stanewich’s ten-year career,

only three citizen-generated complaints against him were

10

sustained. None were materially similar to Stanewich’s

attempted armed robbery. (V.O.E.R., Vol. IL, T24-5 §§ 11,

7,9, 6; S.E.R. 2.) Contrary to petitioners’ representation in

their petition, Stanewich engaged in only one surveil-

lance for which he was disciplined. Discipline was

imposed because he conducted it without a partner, and

had not received pre-approved overtime for the work. /d.

The Court of Appeals correctly concluded that such pro-

cedural transgressions were insufficient to make a subse-

quent off-duty crime foreseeable.

No other San Diego County sheriff’s deputy in his-

tory has ever committed such a crime on or off duty. (R.T.

8/10/94, 91:7-10.) This fact alone undercuts any kind of

foreseeability theory, or argument that there was an

obvious need for changed practices. See e.g., Canton v.

Harris, 489 U.S. at 390.5

The expert testimony also provided no support for a

finding that Stanewich’s robbery attempt was foreseeable.

Petitioners’ police expert merely speculated: “Something

was going to happen. | couldn't say that was going to

happen but something negative was going to happen.”

(R.T. 8/10/94, 103:8-10.) Another stated:

“I don’t believe that they could have necessarily

predicted that he was going to commit a rob-

bery, but I think there was a long series of

* For County policy makers to have been deliberately

indifferent to the need for the Van Orts’ prophylactic measures,

one must be able to conclude from the evidence that they knew

to a moral certainty that County deputy sheriffs will exploit on-

the-job information for criminal purposes. (See e.g., Canton v.

Harris, 489 U.S. at 390 fn. 10.)

11

problems that could allow them to successfully

predict that there was going to be some kind of

escalating problems in the future, whether it be

a robbery or something lesser or perhaps even

greater.” (R.T. Vol. IV, 8/12/94, 574:25-575:6.)

Two other experts testified that there was nothing in

Stanewich’s record to indicate that his supervisors should

have known that he would commit a robbery. (R.T. Vol.

XII, 2140:25-2141:3; Vol. XVI, 2363:14-2364:3.) Stanewich’s

off-duty criminal conduct was simply not foreseeable.

This case does not present an important question of

federal law which requires review by this Court.

¢

CONCLUSION

In asking this Court to grant their petition for writ of

certiorari, petitioners do little more than repeat their

version of the facts. Their petition does not state a basis

upon which this Court should grant certiorari. Respon-

dent County of San Diego respectfully requests that the

petition for certiorari be denied.

Respectfully submitted,

JouHNn J. SANsone, County Counsel

County of San Diego

Diane Barostey, Chief Deputy

Ricky R. SancHez, Deputy

1600 Pacific Highway, Room 355

San Diego, California 92101-2469

(619) 531-4874

Counsel for Respondent

County of San Diego