# Opposition Brief — Van Ort v. Estate of Stanewich

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1111

## Text

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
©) ye 6 Ry 6 15 5 | 2 Se i
inc ci nee cae wtewahe ees ceecees ene ii
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1871%3A2. Public record. Not legal advice.