Oklahoma City v. Tuttle Brief for Respondent

    No. 83-1919 

In the
Suprem e C ourt of the U nited S tates 

OCTOBtH TtHM, 1984

THE CITY OF OKLAHOMA CITY,
Petitioner,

r o s e  IVIARIE TUTfLE,
Respondent.

Oil W rit  o f  C ert iorari  to the IJiiiteil S ta le*  C ou rt o f  
Appeal* for  the T e n th  C ircuit

UlUEi'' F o i l  llESFOl^iOENT



No. 83-1919

In the
Suprem e C ourt of the U nited States 

OcTOBtm TiiHM, 1984

THE CITY OF OKLAHOMA Cl FY,
Petitioner,

V.

r o s e  m a r ie  TU-TrLE.
Respondent.

O n W rit  o f  C ert iorari  to llie IJiiile.l SluleB C ourt o f  
Appeals fo r  the T e n th  Q r e u i l

I t l l l E F  r o l l  UESI'OIMUEIMT



QUESTION PKESENTBO

W hether a single isolated incident of the use of exces­
sive force by a police ollicer establishes an ofiicial policy 
or custom of a municipality suflicientno render the munici­
pality liable m damages under 42 U.S.C. §1983.*

•Tins is ihe quesrion reci.ed in the Petition for W tit of Certionti and 
the Brief for Petitioners. We urge at pages 38 39 of this brief that 
this question is not in fact presented by this case.



TABLE OF CO NTENTS

PAGE

QUESTION PRESENTED     i

TABLE OF AUTHORITIES ...........    ii»

RULES INVOLVED ....................................   1

STATEMENT OF THE CASE    2
(1) The Killing of William Tuttle ................  2

(2) Proceedings in the District Court 4
(3) Proceedings in the Court of Appeals 10

SUMMARY OF ARGUMENT ................................-....  12

ARGUMENT:
I. The Evidence Was Sufficient to Support the 

Ju ry ’s Finding of Municipal Liability Under 
Mwiell V. New York City Dept, of Social Serv­
ices, 436 U.S. 658 (1978) .......... .. ....... — 15

(1) The Decision in Monell   15

(2) The Standard of Review ......................... 23

(3) The Evidence in This Case .......-  29

II. The “Question Presented” By Petitioner Is
Not in Fact Presented By This Case _ 38

HI. Monell Does Not Require that the Municipal 
Policy or Decision Which Injured a Plaintiff 
Have Also Injured Other Individuals 40

CONCLUSION ..................................... .............. ...... - ......  48

—II—
— I l l —

T A B LE  OF AUTH O RITIES

Canes fAOE(l)
Anderson v. City of Bessemer Cit/,-No. 83-1623 25
Anderson v. Smith, 226 U.S. 439 (1913) ...........  —
Bailey v. Central Vermont R. Co., 319 U.S. 350 (^^43) 24,25 
Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984)
Berry v. McLemore, 670 F.2d 30 (5th Cir. 1982) —
Bivens v. Six Unknown Federal Narcotics Agents, 403

U.S. 388 (1971) - ........
Black V. Stephens, 662 F.2d 181 (3rd Cir. 1982)
Castle V. Bullard, 64 U.S. 172 (1859)  ̂ _ 45
Continental Ore Co. v. Union Carbide Co., 370 U.S.

690 (1962)
Ellis V. Union Pacific R. Co., 329 U.S. 649 (1947) . 24, 25.26

Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.
1980) .................................................... ......... - ............ -

Gallick V. Baltimoie & Ohio R. Co., 372 U.S. 108
(1963) ...............  .....- ............

Gilmore V. City of Atlanta, 735 F,2d 838 (5th Cir.
1984) .......................................................................... ........

Gunning v. Cooley, 281 U.S. 90 (1930)
Hearn v. City of Gainesville, 688 F.2d 1328 (11th Cir.

J902) .............................................................. 16,17
Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981) 43
Hodges V. Easton, 106 U.S. 408 (1882) 28
Hopper V. Evans, 456 U.S. 605 (1982) ..... .....................

Jones V. East Tennessee, V. & G.R. Co., 128 U.S. 443 
(1898) ....................................  ................................... -

Kane v. Northern Cent. R. Co., 128 U.S. 91 (1888) 24
Katris V. City of Waukegan, 498 F. Supp. 48 (N.D.

111. 1980) ....................................  ...................
Kingsville Independent School District v. Cooper, 611

F.2d 1109 (5th Cir. 1980) ....................................._16,17



—  IV—
AUIHOimiES CONIIN'JtD PACERS)
Languirand v, Hayden, 717 F.2d 220 (5th Cir. 1983) 43
Lavender v. Kuril, 327 U.S. 645 (1946) 24,25
McClelland v. Facleau, 610 F.2d 693 (lOlh Cir. 1979) 43
Munell V, New York City Dept, of Social Services, 436 

U.S. 658 (1978) pii.ssim
Monroe v. Pape, 365 U S. 167 (1961) 15. 19,32
Owen V. City of Independence, 455 U.S. 622 (1980) 40
Owens V. Haas, 601 F.2d 1242 (2d Cir. 1979) 46
Palmer v. Hoffman, 318 U.S. 109 (1943) 45
Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) 28
Parratt v. Taylor, 451 U.S. 527 (1981) 11,19
Pawling V. United States, 8 U.S. (4 Cranch.) 219

(1808) 24
Peters v. Township of Hopewell, 534 F. Supp. 1324

(D.N.J. 1982) .......................................—
Pullman Standard Co. v. Swint, 456 U.S. 273 (1982) 20
Richmond & Danville Railroad Co., v. Powers, 149 

U S. 43 (1893) 25
Scheuer v. Rhodes, 416 U.S. 232 (1974) 46
Schlesinger v. Reservists to Slop the War, 418 U.S.

208 (1974) 'll
Schneider v. City of Atlanta, 628 l'.2d 915 (5th Cir.

1980) ■ 16 
Scott V. London & St. Katherine Docks Co., 3 H. & C.,

496, 159 Eng. Rep. 665 (1865) 45
Sioux City & Pacific R R. Co. v. Stout, 84 U.S. 657 

(1874) 26
Teamsters v. United Slates, 431 U.S. 324 (1977) 42
Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29 

(1944) 24,25,26
Tiller v. Atlantic Coast lane R. Co., 318 U.S. 54 (1943) 26
Turpin V. Mailel, 619 F.2d 196 (2d Cir. 1980) 43, 46
Warth V. Seldin, 442 U.S. 490 (1975) 41
Webster v. City of Houston, 735 F.2d 838 (5th Cir.

1984) ......................................................... ................ ........ ^2

-V— rA6f(s;
-  43
_  24

46

4
4
4

AUTHOamiS CONTINUED
Wellington v. Daniels, 717 F.2d 932 (4th Cir. 1983) .
Wilkerson v. McCarthy, 336 U.S. 53 (1949) ..........
Zant V. Stephens, 77 L.Ed.2d 235 (1983-) ....................

IJiiileil Slulea Coiialilulion
Fourth A m endm ent.... ....... .....-............ ................ .........
Fifth Amendment ........ ...... -.........  ...... ......
Sixth Amendment --------- ----------- -------- - ...............
Seventh Amendment ................ ...............- ................  ’ ’
Fourteenth A m endm ent........ - --- -------------- -------------

Lnitcd Sutea Code
28 U.S.C. § 1331 ...............................- ------------------
28 U.S.C. § 1343 ........... ......... - ...................
28 U.S.C. § 1391(b) .............................- .... - ...... —
42 U.S.C. § 1983 ............................................. ...... -
42 U.S.C. § 1985 ..................................... - - ..............
42 U.S.C. § 1986 ------- ---- ------ ------
42 U.S.C. S 1988

Federal Uulea of Civil Procetlure
........................................ .......................................................................1,45

13

4
4
4

15,38
4

19
4

1

Rule 51 .... ........................... ...................  ......
Rule 52 . ................................ - ........... ..........—

Federal Uulea of Evidence

Rule 401 ............ .......
Miacellaneoua

1 Annals of Congress (1789) ................................- ...... — 28
J. Elliot, The Debates in the Several State Conventions 

on the Adoption of the Federal Constitution (1856) .
W. Prosser & W. P. Keeton, The Law of Torts (5th ed.

1984) ............... ....... - ..................  - ........
G. Rude, Wilkes and Liberty (1962) ................ - .......... -
Writings of Thomas Jefferson (Washington ed. 1861).. 
“Civil Rights Litigation after Monell", 79 Col. L. Rev.

213 (1979) ................ - ........................- ---- ---------------

28

19
27
27

32



No. 83-1919

In the
2)upreme C ourt of the U nited States 

O c t o b e r  T e r m , 1984

THE CITY OF OKLAHOMA CITY,
Petitioner,

ROSE MARIE TUTTLE,
Respondent.

On Wril of Certiorari to the United States Court of  
Appeals for the Tenth G rcuil

BRIEF FOR HESPOIMDENT

h u i .e s  in v o l v e d

Rule 51, Federal Rules of Civil Procedure, provides in 
pertinent part:

No party may assign as error the giving or the failure 
to give an instruction unless he objects Uiereto before 
the jury retires to consider its verdict, stating distinctly 
the m atter to which he objects and the grounds of his 
objection.

Rule 401, Federal Rules of Evidence, provides:
“Relevant evidence” means evidence having any tend­
ency to make the existence of any fact that is of con­
sequence to the determination of the action more prob­
able or less probable than it would be without the 
evidence.



-2—

STATEI»IElVr O F T H E  CASE

( 1 )  The k illin g  of William Tullle

Although many details of the events leading to this 
litigation were the subject of sharply conflicting trial testi­
mony, certain basic facts are not in controversy. On Oc­
tober 4, 1980, the Oklahoma City Police received a tele­
phone call reporting that an armed robbery was in progress 
at a bar known as the We’ll Do Club. The caller, laughed 
during the report, and described the alleged robber as a 
37-year-old white male with brown hair and glasses. The 
dispatcher radioed the report to police cars in the vicinity 
of the Club. The first car to arrive at the scene was driven 
by Police Officer Julian Rotramel, a rookie officer who had 
completed the police academy only ten months earlier. Al­
though rookie patrolmen less than a year out of the acad­
emy frequently rode with experiencerl senior officers, Ro­
tramel had been assigned to patrol on his own. When 
Rotramel arrived at the bar a second backup car, driven 
by an experienced officer, was less than a minute away. 
Rotramel chose, however, not to await the imminent aiiival 
of a backup unit; he parked his patrol car directly in front 
of the bar and entered it alone.

No robbery was in progress, threatened, or had in fact 
occurred at the bar. Whether or not Rotramel was actually 
told this when he was in the bar is among the issues that 
were disputed at trial. In any event, shortly after Rotramel 
entered the bar, he was approached by William Tuttle. Be­
cause Tuttle matched the description of the alleged robber, 
Rotramel directed Tuttle to remain in the bar. Tuttle ini­
tially complied, but then left the bar through the same door

by which Rotramel had entered. Rotramel followed Tuttle 
out of the bar, drawing his service revolver as he left. Out­
side the bar Rotramel observed TuUle approximately ten 
feet away. Tuttle had his back to Rotramel, and was in a 
crouched position. Rotramel fired his service revolver, hit­
ting Tuttle in the back.

When Rotramel shot Tuttle, another officer, Riley Len­
nox, had already arrived at the bar, but was on another 
side of the building out of sight of the shooting. Lennox 
hurried to the scene of the shooting, and was directed by 
Rotramel to search the boots of Mr. Tuttle, who lay dying 
on the sidewalk. Lennox conducted a search of the boots, 
but found nothing. Tuttle’s wife, who had had a baby only 
5 days earlier, was called to the scene, but was not per­
mitted to see or talk to her husband. Tuttle was taken by 
ambulance to a local hospital, in the custody of several 
police officers. At the hospital a nurse who was treating 
Tuttle removed his boots, and this time a toy plastic cap 
pistol fell out. Tuttle died shortly after arriving at the
hospital. (J.A. 63-64).

I t is undisputed that Tuttle was neither an armed rob­
ber nor chargeable with any other felony. Similarly, all 
parties agree that Tuttle in fact never had a gun or any 
other type of dangerous weapon. Tuttle never made any 
verbal threats to Rotramel and never posed any actual 
danger to Rotramel, Lennox, or any other officer or civilian. 
The most serious offense with which Tuttle could have been 
charged was leaving the custody of officer Rotramel, a 
misdemeanor for which the maximum penalty is a $35 fine.



(2 )  Procee«Iingi in the Diitlrict Court

Respondent Rose Marie Tuttle, William Tuttle s widow, 
commenced this action in the United States District Court 
for the Western District of Oklahoma. Her complaint was 
brought pursuant to sections 1983, 1985, 1986 and 1988 of 
42 U.S.C., and directly under the Fourth, Fifth, Sixth and 
Fourteenth Amendments to the Constitution. See Bivens 
V. Six  l/7ikHOUJn Federal Narcotics Agents,' 403 U S. 388 
(1971). Jurisdiction was based on 28 U.S.C. 1331, 1343, 
and 1391(b). The complaint named as defendants both offi­
cer Rotramel and the City of Oklahoma City. Respondent 
alleged that in killing Tuttle, Rotramel “was acting pur­
suant to the orders and directives” of the city (J.A. 15), and 
that the city had “inadequately trained” its police ofliceis. 
(J.A. 16). Re.spondent sought compensatory and punitive 
damages, as well as an award of costs and counsel fees. 
(J .A .20-21).

In the trial court both the city and ofiicer Rotramel 
were represented by the City Attorney of Oklahoma City. 
The nature of the defense adduced at trial is of consideiable 
importance because it is very different from the contentions 
now advanced by the city. In this Court the city insists that •

• Neither court below considered wlieiher tl.e peculiar requirements of 
Motull V. Nett' Yori City Peparrmriit of Social Senicii, 436 U S. 658 
(1958), rooted as tliey are in the particular legislative history of the 
1871 Civil Rights Act, are applicable to an action brought directly 
under the Constitution. Should this Court hold that the decision of the 
Tenth Circuit cannot be upheld under Monell. the question of what 
impact Monelt has on a Btoofis action should be remanded for consid­
eration in the first instance by the court of api>eals

i By the time this action came to trial Rotramel was no longer on the 
police force.

“the act of Rotramel in discharging his service revolver 
and thereby causing the death of William Tuttle, was at 
odds with the ‘official policy’ of Oklahoma City.” (P  Br. 20, 
see also id. at 19, 21). But at trial, counsel for petitioner 
contended that Rotramel’s action was absolutely proper. 
The Answer filed by petitioner asserted the following “af­
firmative defenses”;

That the Defendant employee at all times herein men­
tioned acted in good faith without malice and within 
the scope of his duties as a police officer of the City of 
Oklahoma City and peace officer of the State of Okla­
homa.

That the actions of the Defendant and its employee 
were lawful and proper and probable cause existed for 
the arrest of Tuttle.
That the action of the Defendant and its employee in 
all respect [siej was reasonable, proper and legal. (J.A. 
22-23).

The defense offered by the city at trial was not that Rotra­
mel had erroneously shot Tuttle in violation of city policy, 
but that Rotramel’s action was proper in every respect 
After eliciting testimony intended to show that Rotramel 
had killed Tuttle because he feared that Tuttle was about 
to shoot him, counsel for the city argued;

There’s no problem with the policy, I don t believe 
[Rotramel] shot that man because he thought his 

life was in danger. He did not wait to see an offensive 
weapon. . . . He thought William Adam Tuttle was the 
armed robber. He was in a position to grab a weapon. 
He was in a position to turn around and shoot him, and 
I submit to you, he shouldn’t have to wait to see that



weapon under those circumstances. . . .  I contend that 
officer Rotramel acted in a reasonable and good faith 
belief, while he was acting as a police officer, and as 
he should have reacted, to protect his life. . . .  He was 
acting as should have acted, acting as he reasonably 
believed he was in danger of his life. He was a properly 
trained police officer. . . .  I hope that you’ll bring back 
a verdict for both defendants, Julian Rotramel, for act­
ing properly, and for the City of Oklahoma City for 
training him so. (1r. 672-79).

In this Court the city denounces Rotramel’s conduct as 
“excessive" and unauthorized, but in the district court the 
city urged the jury to conclude that Rotramel’s action was 
entirely consistent with city policies and training.

The defense adduced at trial hinged, not on any criti­
cism of Rotramel’s action, but on a disagreement about 
what had occurred on the night of October 4, 1980. The 
city otfered testimony which, if believed, might have led 
a jury to conclude that Rotramel had substantial rea.son to 
think that Tuttle had a gun and was preparing to use it. 
Rotramel testified that the barkeeper did not tell him there 
was no armed robbery in progress,« that while in the bar 
Tuttle had twice attempted to reach for his boot, that 
Rotramel had physically restrained Tuttle® until lu t t le  
broke loose and ran out of the bar,*' that Rotramel had 
repeatedly shouted at Tuttle to halt,’ and that outside the

- J A 169. 179. 210.
* J A. 171, 179, 207, 209.

J A. 168. 169, 178, 203, 205.

« J A. 179.
’ J A. 158. 170, 172, 180, 183, 222.

bar Tuttle had jumped up and started to turn  around be­
fore Rotramel shot him." Witnesses who were in the bar, 
on the other hand, gave a completely different story, as­
serting that Rotramel was expressly assured in the bar that 
there was no robbery in progress" that Tuttle had never 
reached in his boot,*" that Rotramel had not tried to re­
strain Tuttle physically,** that Tuttle had merely walked 
out the door,*" and that Rotramel had never shouted halt.** 
Medical evidence offered by plaintiff indicated that outside 
the bar Tuttle had stumbled rather than crouched to reach 
for his boot,** and that Tuttle was still bent over when he 
was shot in the back.*® The testimony offered by plaintiff’s 
witnesses, if credited by the jury, could have compelled the 
conclusion that Rotramel had killed Tuttle without any 
reasonable justification.

There was also conflicting evidence on several other 
issues. First, the various police officials who testified gave 
different answers regarding whether under city policy a 
police officer were authorized to shoot a possibly dangerous 
suspect if the officer had not actually seen a gun or other

—7—

» J.A, 158, 183, 224.
i* J A 82, 83, 90, 106. Rotramel himself told one investigating officer 

that he had received that assurance. Tr. 204, 211.

A. 84, 100, 107.

“ J.A. 83-84, 97.

“ JA. 109, 132.

>aj.A. 86, 100, n o , 132, Tr. 601.

“ Tr. 181.

“ Tr. 177, 178, 179, 300.



weapon in the suspect’s possession.'" Second, witnesses 
called by petitioner and respondent disagreed about the ade­
quacy of the city’s training policies and about whether any 
defects in those policies had caused the killing of Tuttle.'^ 
Third, the testimony raised questions about whether Ro- 
tramel was adequately supervised particularly concerning 
whether Rotramel was too inexperienced to have been per­
mitted to be on patrol by himself."*

The district judge instructed the jury, in a manner 
entirely consistent with Monell, that the city could only 
be held liable if respondent prove<l both the existence of 
a city policy, and that that policy had caused the alleged 
constitutional violation.'" Petitioner did not object to those 
instructions at trial, and does not complain of them here. 
Throughout the proceedings in the district court, however, 
the city consistently but unsuccessfully insisted that to es­
tablish municipal liability under Monell respondent was 
required to establish, not merely that the alleged policies 
had resulted in the unconstitutional killing of Tuttle, but 
also that those policies had brought about other sirnilaily 
unconstitutional police killings or assaults.

The jury returned a verdict holding the city liable for 
$1,500,000 in actual damages, but imposing no liability on 
officer Rotramel. The city attorney attacked these verdicts

—8—

‘ •’Tlic conlliciing testimony regarding whetlicr city poliqr authorized the 
shooting in question is discussed at pp. 29 32, irt/ra.

' ‘Tlie conflicting testimony regarding the city’s training policies is dis­
cussed at pp. 31-32, infra.

* **See pp 36-37, infra.

***Sce pp. 21-22, infra.

as inconsistent, apparently insisting that the jury either 
also hold Rotramel liable or to exonerate both his clients. 
(Tr. 696, 702). The district judge concluded that the ver­
dicts were consistent:

“ IW jhere a municipality pursues as a m atter of policy 
activities that do not comport to the constitution . . . .  its 
liability is absolute even though officials who imple­
ment such policies are protected by qualified immun­
ity.” . . .  I think the good faith defense on behalf of 
an individual which is not available to the city or 
municipality is the linchpin of the fact that this is not 
inconsistent.

• • •
Now, I thought that that was perhaps the hardest 

part of the plaintiffs case to prove that the failure to 
train or inadequacy of the training was willful and 
wantonly negligent. . . .  I submitted it to the jury . . . 
and the jury apparently felt that that was where they 
thought the illness lay rather than upon officer Ro­
tramel, who I assume . . . they felt that although he 
did violate tlie decedent’s constitutional rights, that it 
was in the good faith belief that he had the right to 
do so under the circumstances here.

(Tr. 703-06). The city moved orally and in writing for 
judgment notwithstanding the verdict. The district court 
denied both motions, concluding “the plaintiff brought for­
ward sufficient evidence regarding inadequate training and 
procedures to w arrant submission to the jury  of the issue 
of municipal liability . . (J.A. 58).-°

- ‘•See also Tr. 702 (respondent adduced, not only proof of the constitu­
tional violation at issue, but "additional evidence of . . . lack of training 
or failure to train, or failure to supervise . . ."), 704 ("there was con­
siderably more evidence presented here than the fact that the . . . shot



-1 0 -

( 3 )  Proceeding* in the ('.ourt of Appeal*

Both petitioner and respondent appealed from the ver­
dict and the decision of the district court. Respondent con­
tended that the judgment in favor of officer Rotramel was 
improper, and that the trial judge should have directed a 
verdict against Rotramel on the issue of liability. The city 
challenged on a number of grounds the verdict against it. 
The tenth circuit rejectcni both appeals.

In upholding the verdict in favor of Rotramel, the court 
of appeals emphasized the role of the jury in resolving the 
conflicting testimony. (J.A. 65). The court of appeals rec­
ognized that Rotramel’s good faith defense “does not seem 
to be strongly supported,” but concluded that the issue was 
properly submitted to the jury for decision. (J.A. 66). "In­
asmuch as the jury was properly instructed and since there 
is evidence which favors Rotramel, we cannot assume that 
the [jury’s] conclusion was improper.” (J.A. 66). If the 
jury  construed the evidence “in the light most favorable to 
the defendant . . .  it could find that he reasonably believed 
his response was permitted.” (J.A. 65-66).’■**

-"(ConiinucJ)
someone- in deprivation of their civil rights. Tlierc was a good deal of 
evidence. . . 701 05 ("1 was impressed wiili the evidence tliat was
presented in this case that the airriculum methods and the lack of sup­
ervision and training was more than . . . just negligence ). 706 ( you 
pot in enough evidence in my opinion that reasonable minds could dif­
fer with regard to that.” ).

- 'T h e  court of appeals’ opinion asserts that "Rotramel admitted at trial 
that he violated Police Department policy in shooting Mr. futile. 
(J A. 65). Tliat is not correct. Rotramel insisted that his action was 
entirely consistent with city policy. Sec pp. 29-30, infra.

Petitioner argued in the tenth circuit that the trial 
judge had instructed the jury that it could find the city 
liable for a policy that was m erely negligent, and insisted 
that respondent should have been required to prove gross 
negligence. The court of appeals rejected this objection on 
the ground that the jury  had in fact been instructed that 
the city could not be held liable unless there was “gross 
negligence and deliberate indifference to the rights of the 
decedent." (J.A. 69). Somewhat inexplicably, the tenth 
circuit’s opinion contains no reference to this Court’s opin­
ion in Parratt V. Taylor, 451 U.S. 527 (1981), which ex­
pressly rejected the contention that liability could not be 
imposed in a section 1983 action without a showing of in­
tentional or grossly negligent conduct.

Petitioner also contended that respondent had failed to 
adduce sufficient evidence to w arrant submitting to the 
jury any claim against the city. The court of appeals, 
however, observed that, in addition to the particular cir­
cumstances surrounding the killing of Tuttle,

there was plenty of independent proof of lack of actual 
training. In this case the individual defendant had 
been on the police force for a very short period of 
time; moreover, he admitted his lack of training to 
cope with robberies. Nevertheless, he was allowed to 
go in on a suspected robbery by himself. (J.A. 71).**

The tenth circuit therefore concluded that there was ade­
quate evidence” to w arrant submission of the claim to the 

jury. (J.A. 68).

— 11—

--Sec abo J.A. 68 ("Even the olTicer admitted the inadequaqr of the 
training").



Third, respondent argued in the court of appeals, as 
it does here, that municipal liability under Monell required 
proof of a series of constitutional violations, and that a city 
could not be held liable if there was only a “single inci­
dent.” The tenth circuit held that the relevance and im­
portance of evidence of any other violations depended in 
each case on the type of municipal policy which a plaintiff 
sought to prove, and on the nature of the other evidence 
which the plaintiff adduced to support his or her claim. 
In this case the court of appeals concluded that respondent 
had produced sufficient evidence, over and above the killing 
of Tuttle, to warrant submission of her claim to the jury. 
(J.A. 70-71).

The court of appeals also upheld the amount of dam­
ages awarded by the jury. Judge Barrett concurred on the 
ground that “the trial court properly and adequately in­
structed the jury .” (J.A. 72).

- 1 2 -

SUM M AKY O F AHCJFMEIMT

I. The district court in this case expressly instructetl 
the jury that it could not impose liability on the city based 
on respondeat superior, and that municipal liability would 
have to be based on a finding (a) that there was a relevant 
city oHicial policy or action, and (b) that that official policy 
or action had caused the death of respondent’s husband 
William Tuttle. The jury was also instructed that the issue 
of whether or not Tuttle’s death was caused by a city policy 
was “a question of fact.” (J.A. 43). Each of these instruc­
tions was consistent with Monell v. New York City Dept, 
of Social Services, 436 U.S. 658 (1978), and none were ob­
jected to by petitioner.

The jury verdict in this case must be sustained on 
appeal even though the evidence might justify a finding 
either way. The Seventh Amendment limits appellate re­
view of jury verdicts even more severely than the Rule 52 
restriction on appellate review of trial court findings. See 
PuIIrmin Standard Co. v. Swint, 456 U.S. 273 (1982). Ap­
pellate reconsideration of a jury verdict is particularly in­
appropriate when, as here, issues of crc*dibility are involved. 
Compare Anderson v. City of Bessemer City, No. 83-1623. 
In reviewing a jury verdict this Court must "view the evi­
dence in the light most favorable to [the prevailing party] 
and . . . give it the benefit of all inferences which the evi­
dence supports, even though contrary inferences might rea­
sonably be drawn.” Continental Ore Co. v. Union Carbide 
Co., 370 U.S. 690, 696 (1962).

In this case there was conflicting evidence regarding 
whether (a) the shooting of Tuttle was authorized by city 
policy, (b) the shooting was caused by inadequate city 
training policies, and (c) the shooting was caused by in­
adequate city supervision policies. The resolution of this 
conflicting evidence was a m atter for the jury.

II. The question presented framed by petitioner is 
w hether the m ere existence of a single act of police bru­
tality compels as a m atter of law a finding of municipal 
liability. This case presents no such question.

Tliis case is not a case in which the plaintiff proved 
only that an innocent civilian had been killed. Respondent 
offered direct evidence that the shooting was caused by 
municipal policies. The officer who shot Tuttle testified that 
city training policies were inadequate and had led to Tut-

— 13—



lie’s death. The offical who was Chief of Police when Tuttle 
was shot insisted that the shooting was entirely consistent 
with city policy.

The implausible doctrine to which petitioner objects 
that a single constitutional violation invariably compels 
a finding of municipal liability—has never been advanced 
by respondent, was not adopted by either court below, and 
is not presented by this case.

III. Petitioner appears to argue that a plaintill undei 
Monell must prove both the existence of a policy or custom 
that caused the injury complained of and the existence of 
“a regular pattern of constitutional deprivations.” Nothing 
in Monell sanctions this second requirement. Monell itself 
provided that an oflicial “decision” would sufiice to estab­
lish liability, although a single decision will often have only 
a single victim. There was only one constitutional violation 
and deprivation in Chotm v. City of Indeptnidencc, 45.) U.S. 
622 (1980).

Proof of a “regular pattern of constitutional depriva­
tions” is not the only type of evidence on which a plaintift 
can rely to prove an oflicial policy or decision. Such proof 
clearly cannot be required where a plaintiff asserts the ex­
istence of a policy or decision which by its own terms will 
have only one victim. Even as to policies which might 
cause several constitutional violations, direct evidence of 
the substance of those policies, such as was introduced here, 
is at least as probative as a statistical pattern of injuries 
suggesting the existence of a common cause

—14—
— 15—

AnClJMENT

I. THE EVIDENCE WAS SUFFICIENT TO SUPPORT  
THE JURY’S FINDING OF MUNICIPAL LIABILITY 
UNDER mOISELL v. NEW YORK CTY DEPT. OP  
SOCIAL SERVICES, 4 36  U.S. 6 58  (1 9 7 8 ) .

( 1 )  T lie Decision in Monell

The issue raised by the petitioner in this Court poses 
a narrow question regarding the circumstances under which 
damages may be awarded against a city under Monell v. 
New York City Dept, of Social Services, 436 U.S. 658 (1978). 
Petitioner has not sought, and this case does not require, any 
comprehensive exegesis of Monell, but the basic holding of 
that decision provides the context in which the present case

arises.
Prior to Monell this Court had held in a series of de­

cisions dating from Monroe v. Pape, 365 U.S. 167 (1961), 
that a local government was not a “person” subject to suit 
under 42 U.S.C. § 1983.-^ Monell overruled Monroe, and 
held that that earlier decision had misread the legislative 
history of the 1871 Civil Rights Act, from which section 
1983 is derived. Monell also concluded, however, tliat a 
local government could not be held liable under section 
1983 merely because a government employee had engaged 
in unconstitutional conduct. To establish a claim under 
Monell a plaintiff is required to establish two distinct ele­
ments, first, that there was a relevant oflicial action or 
custom, and, second, that that action or custom had caused 
the constitutional violation complained of. 436 U.S. at 692-95.

see Monell V. New York City Dept, of Social Servicei, 436 U.S. at 
6f)3 and nn 5 and 6.



Monell recognized that in establishing the existence of 
an official action a plaintiff might rely either on the identity 
of the official who took that action or on the substance the 
action itself. Thus Monell referred both to action “by those 
whose edicts or acts may fairly be said to represent olFicial 
policy,” 436 U.S. at 694, and to “a policy statement, ordi­
nance, regulation, or decision officially adopted and promul­
gated. . . ." 436 U.S. at 690. In any governmental unit there 
will be some individuals with such broad authority that all 
of their “edicts or acts may fairly be said to represent offi­
cial policy.” But liability under Monell is not limited to 
the conduct of high ranking officials; it extends to any ac­
tion or policy that has received “approval through the 
body’s official decision making channels.” 436 U.S. 691. 
Frequently the official decisionmaking process in a city or 
county will be delegated to a number of subordinate em­
ployees. The policy at issue in Monell, for example, had 
been adopted by a minor personnel official of the Depart­
ment of Social Services, exercising authority delegated to 
him by his supervisors.-®

—16—

-<A number ol lower court decisions under Mondl have focused on die 
high position of the government employee responsible for die consti­
tutional violation. Haunt V. City of Gawesttlle. 688 F.2d 1328 (1 Uh 
Cir. 1982) (city manager and personnel director); Black V. Stapbans, 
662 F.2d 181 (3rdCir. 1982) (police chief); Ktn^tville iHdcpandaut 
School Dionct V. Cooper, 611 F.2d 1109 (5th Cir. 1980) (trustees of 
school board). Several decisions correctly observe that the actions of 
ollicials who exercise the "final authority" over some area of responsi­
bility arc necessarily olheial action under Monell. Sebnetder v. City of 
Atlauta, 628 F.2d 915. 920 (5thCir. 1980); Familiui Unidu, v. lim  
coe, 619 F.2d 391, 401 (5thCir. 1980).

-^Mouell V. New York City Dept, of Social Services, stipuation dated 
May 16, 1974, p. 2. The lower courts have consistently recognized time

Monell does not require proof of an ordinance, regulation 
or policy of general application which injures a number of 
different individuals; a single “decision”, possibly harming 
only one person, is sufficient. In Owen v. City of Independ­
ence, 455 U.S. 622 (1980) the city “policy” which gave rise 
to liability under Monell was the dismissal of a single city 
employee.

Monell also held that a city or county could be held 
liable on the basis of an official custom. This holding has 
its roots in the language of section 1983, itself, which pro­
vides a cause of action for certain conduct . . . under color 
of any law, statute, ordinance, regulation, custom, or usage 
of any State. . . .” This Court noted that in framing section 
1983 Congress had “included such customs and usage be­
cause of persistent and widespread discriminatory practices 
by state officials.” 436 U.S. at 691. Monell emphasized that 
the actual practices of government officials were often a 
better indication of official policy than ordinances or regu­
lations which might ignore or even forbid those very prac­
tices;

It would be a narrow conception of jurisprudence to 
confirm the notion of “laws” to what it found written 
oil the statute books . . . settled state practice . . .  can 
establish what is state law----- Deeply embedded tra-

—17—

-^(Cuiuinucd)
u plaimilf may meet liia burden under Monell by offering proof of 
action takett by olliciab cxerctstng delegated autliority or discretion. 
Hearn V. City of Gatnetville, 688 F.2d 1328, 1334 (llih C ir. 1982), 
Ktngsville Independent School DtOnct V. Cooper, 611 F.2d 1109, 1112 
5iliCir. 1980); Peters V. Tounsbtp of Hope-well, 534 F.Supp. 1324 
(D  N.J. 1982); Katns v. Ctiy of U-'anke îun, l98 FSupp. 48. 51 (N.D. 
lU. 1980).



ditional ways of canyiny out state policy . . are often 
tougher and truer law than the dead words of the 
written text.

436 U.S. at 691 n.56. The lower courts have generally held 
that a custom within the meaning of Monell is established 
where a plaintiff shows that a particular practice occurred 
with such frequency or notoriety that responsible super­
visory officials would or should have known of its exist­

ence.
In addition to proving the existence of an official ac­

tion, policy or custom, a plaintiff must also demonstrate that 
that action, policy or custom in fact “ ‘cause |d ]’ an employee 
to violate another’s constitutional right.” 436 U.S. at 692 - ‘ 
Section 1983 imposes liability on any person who “shall 
subject, or cause to be subjected, any person” to a depriva­
tion of a constitutional right. Thus an action, policy oi 
custom might cause a constitutional violation in eithei of 
two ways. First, a city policy might itself be unconstitu­
tional, such as a rule that police are to shoot at a fleeing 
suspect if he or she is black. Second, a city policy, although 
not unconstitutional on its face, might cause municipal em­
ployees to engage in unconstitutional conduct, such as a 
practice of teaching police rookies how to shoot to kill, but 
not instructing them when they should and should not shoot

at all.

— 18—

V. a iy  ol SUdiU, 728 F 2d 762 (5th Cir. 1984) noted, "where 
the violations are llagrant or severe, the fact finder will likely require 
a sliorter pattern of conduct to be satisfied that diligent governing Ixidy 
members would necessarily have learned of the objectionable practice 
and accetled to its continuation "

alto id. at 691 (government liable only if official action or custom 
"of some nature caus^ a constitutional tort.").

—la ­

in  Parratt v. Taylor, 451 U.S. 527 (1981), this Court 
held that in a section 1983 action against an individual, lia­
bility could be imposed so long as it was foreseeable that 
the defendant’s actions would cause a constitutional vio­
lation.““ Nothing in Parratt, Monell or the language of sec­
tion 1983 suggests that the negligence standard announced 
in Parratt is any less applicable when the “person” named 
as the defendant is a government body rather than a gov­
ernm ent employee or some other individual. The legisla­
tive history of section 1983 relied on in Monell itself clearly 
indicates that Congress believed liability appropriate where 
a government defendant with the ability to prevent an 
injury “neglectledj or refuse! dj so to do.” 436 U.S. at 692 
n.57, quoting 42 U.S.C. § 1986.

The elements which Monell establishes as essential to 
a claim against a municipality—causation and custom or 
official action—are all essentially factual in nature. The 
issue of causation under Monell is indistinguishable from 
the issues of causation which frequently arise in ordinary 
tort actions, and are generally regarded as issues of fact 
to be resolved by a jury. A question of “proximate cause 
is ordinarily a question of fact for the jury, to be solved 
by the exercise of good common sense in the consideration 
of the evidence of each particular case.” W. Prosser & W. 
P. Keeton, The Law of Torts p. 321 (5th ed. 1984).

In Monell actions the parties are typically in disagree­
ment as to w hether the action of a particular employee

•■‘ ‘̂Monroe V. Pape had earlier noted that Section 1983 "stiould be read 
against the backgtound of tort liability that makes a man responsible 
for the natural consequences of his actions. 365 U5. at 187.



-20—

which occasioned the injury at issue was caused by tlie 
poor judgment or malice on the part of that employee, or 
by the directions and training, or lack thereof, which the 
employee received from the city. Such disputes are similar 
to questions of motivation, the factual nature of which this 
Court emphasized in Pullman-Standard Co. v. Sivint, 450 
U.S. 273, 288-89 (1982). When, as will ordinarily be the 
case, reasonable observers could disagree about why a city 
employee engaged in unconstitutional conduct, the matter 
must be left to the jury. If in such a case the jury concludes 
that the constitutional violation was caused by a city action, 
policy or custom, " ( ijt  does not m atter that, from the evi­
dence, the jury may also with reason . . . attribute the re­
sult to other causes." Gallick v. Baltimore & Ohio R. Co., 
372 U.S. 108, 117 (1963).

A claim that a constitutional tort was caused by an 
official custom would raise similarly factual issues. Al­
though Monell holds that a custom can be demonstrated by 
proof of “persistent and widespread . . . practices,” 436 U.S. 
at 691, Monell does not fix any particular number of discrete 
incidents as necessary or sufficient to meet that standard. 
Similarly, althought the lower courts generally, and in our 
view correctly, have held that incidents of particular grav­
ity or notoriety are especially probative of the existence of 
a custom, no mechanical test has been suggested or can 
readily be imagined for factoring in the significance or 
triviality of the events alleged to demonstrate a custom. 
The weighing of such evidence must ordinarily be left to a 
jury instructed to decide whether that evidence is sufficient 
to establish a custom for which the government involved 
may fairly be held accountable.

Disputes about the existence of an official action or 
policy are similarly factual in nature. In this particular 
case the district judge expressly-instructed the jury that 
“ [t]he  existence of . . .  a policy is a question of fact for 
you to determine” (J.A .43); respondent did not object to 
that instruction at trial and does not complain of it here. 
The factual disputes that arise in Monell actions about the 
existence of an official action are typically one or both 
of two varieties: first, whether a particular action was 
taken or policy was promulgated by a given official; second, 
w hether the official responsible for that action or policy 
was exercising delegated authority. In government agencies 
where actual practice may often seem to differ from policies 
suggested by written rules or trial testimony, the record 
will ordinarily present conflicting evidence which only a 
jury can resolve. Similarly, in local government bodies 
where the delegation of authority is generally informal and 
unwritten, the evidence adduced at trial will often support 
different conclusions.

The specific instructions of the district judge in the 
instant case closely tracked the language of Monell. The 
judge expressly admonished that it could not hold the city 
liable merely because officer Rotramel was a municipal 
employee:

If a police officer denies a person his constitutional 
rights, the city that employs that officer is not liable for 
such a denial of that right simply because of the em­
ployment relationship. Thus, in this particular case, 
you are instructed that the City of Oklahoma City is 
not liable for the deprivation of the decedent’s consti­
tutional rights solely because it hired and employed 
the Defendant Rotramel. But there are circumstances

- 2 1 -



under which a city is liable for a deprivation of a con­
stitutional right. Where the official policy of the city 
causes an employee of the city to deprive a person of 
such rights in the execution of that policy, the city may 
be held liable. (J.A. 42).‘**

The trial judge noted that the parties were in disagreement 
as to whether there was “an official policy of the City of 
Oklahoma City which results in constitutional deprivations 
(J.A. 43); the jury was instructed, with regard to the con­
flicting claims and evidence:

The existence of such a policy is a question of fact for 
you to determine. The policy, if it existed, need not be 
expressed in writing; it may be an implicit policy. An 
official policy can be inferred from the acts of a mu­
nicipality’s supervisory officials, as well as from its 
omissions. . . .

(J.A. 43-44).

The district judge also made clear that respondent was 
required to establish a causal connection between any ofii- 
cial action, policy or custom and the injury complained of. 
(J.A. 42-43). The judge explained;

Anyone who “causes” any citizen to be subjected to a 
constitutional deprivation is . . . liable. The rec}uired 
causal connection can be established not only by some 
kind of direct personal participation in the deprivation 
but also by setting in motion a series of acts by others 
which the actors know or reasonably should know 
would result in the constitutional injury being inflicted 
upon othere. (J.A. 45-46).

—22—

■-‘'Tliis instruction is essentially the same as the standard urged by peti­
tioner in this Court. See P. Br. ii, 8, 9.

The petitioner did not object at trial to any of these instruc­
tions, and does not contend in this Court that any of them 
were incorrect. The instructions set out above are entirely 
faithful to the decision in Monell, and properly called upon 
the jury to resolve the conflicting contentions and testi­
mony regarding both causation and the existence of official 
action or policy.

( 2 )  The Standard o f Review

Petitioner expressly contended in the court of appeals 
that district judge erred in denying its motions for a di­
rected verdict and for judgment notwithstanding the ver­
dict, contending, as it did at trial, that the evidence was 
insufficient to justify submission of the case to the jury. 
(J.A. 66). Petitioner did not, however, seek review by this 
Court of this aspect of the tenth circuit’s opinion, but 
limited its petition to the so-called “single incident” ques­
tion discussed infra. In its principal brief in this Court pe­
titioner does not refer to its unsuccessful motions in the 
district court, does not assert that the case was improperly 
submitted to the jury, and does not suggest that any dispute 
about the sufficiency of the evidence could be characterized 
as encompassed within the actual question presented. A 
brief review of the conflicting evidence adduced at trial is 
nonetheless necessary to understand the context in which 
the “single incident” question arises in this case.

In assessing the sufficiency of the evidence on which a 
jury based its verdict, neither a trial judge nor the appel­
late courts are free “to reweigh the evidence and set aside 
the jury  verdict merely because the ju iy  could have drawn 
different inferences or conclusions or because judges feel

—23—



that other conclusions are more reasonable.” Temuint v. 
Peoria & Pekin Unum R. Co., 321 U.S. 29, 35 (1944 ) . -  A 
case must be submiUed to the jury “if evidence might just­
ify a finding either way." Wilkerson v. McCarthy, 33(i U.S. 
53. 55 (1949), and “fair-minded men might reach dillcrent 
conclusions”. Bailey v. Central Vermont R. Co., 319 U.S. 
350, 353 (1943)- A direct verdict is inappropriate except in 
the’ extrem e case in which there is only one reasonable 
conclusion that a jury could possibly draw. In assessing a 
request for such a directed verdict or judgment n.o.v.. the 
courts are requireii “to view the evidence in the light most 
favorable to [the opposing party 1 and to give it the beneht 
of all inferences which the evidence supports, even though 
contrary inferences might reasonably be drawn.” Cmiti- 
nental Ore Co. v. Union Carbide Co., 370 U.S. 090, 696

(1962).“*
“ (W)here, as here, the case turns on controverted facts 

and the credibility of witnesses, the case is peculiarly one 
for the jury.” Ellis v. Union Pacific R. Co., 329 U.S. 649, 
653 (1947). In instant case counsel for petitioner re­
peatedly and correctly contended in his closing argument 
that the jury’s verdict would necessarily turn on its assess-

'•^ec also UreJer V. K«r,;, 327 U.S. 643. 653 (1946) (it is ".mma- 
.erial that the court inigl.t draw a couttary inference or (eel that an­
other conclusion is more reasonable").

...iV. aho AuJcn.n v, S>nhh. 226 U.S. 439. -liO 0913)
s.Jermg motion by defendant must adopt jh e  view most to
,he pUint.ft of the evidence"). Kane V. Nortbern Len t .  k. Co.. 128 
US 91 94 (1888) (opposing party to be given the bcnUit “ 
arferene’e to L  fairly drLn from" the evidence). </. Fanhn, V. U iW  
Sutes. 8 US. (4 Cranch.) 219. 222 (1808) ( the testimony is lo be 
talten’most strongly against" tlie moving j«rty).

—24—
m ent of the credibility of the witnesses.®* This Court has 
repeatedly emphasized that issues of credibility are solely 
within the province of the jury.®* Cf. Anderson v. City of 
Bessemer City, No. 83-1623. The resolution of conflicting 
evidence is equally a m atter for the jury alone. “Where 
uncertainty . . . arises from a conflict in the testimony . . . 
the question is not one of law but of fact to be settled by 
the jury.” Gunning v. Cooley, 281 U.S. 90, 94 (1930).*^ 
“ (T]he jury is free to discard or disbelieve whatever facts 
are inconsistent with its conclusion." Lavender v. K um , 
327 U.S. 645, 653 (1946).

—25—

®-Tr. 671 ("1 want you to recall wliai you heard of! the witness stand, 
and recall each of those witnesses and their demeanor, and decide whom 
you believe” ), 676 ("You have to see wfio you believe on the credi­
bility of that witness [Hinds] . . ."), 677 ("You've seen all these wit­
nesses. You have to decide which ones are telling the truth . . 
"[Y]ou just have to depend on the credibility of officer Rotramel. ).

■'3/:7//r v. Union Pactfic K. Co., 329 U.S. 649, 653 (1947). ("[T]hc de­
cision as to which witness was telling the truth . . .  [is a] question[] 
for the jury"); Lavender V. Kurn, 327 U.S. 645, 652 (1946) ( I[I]t 
would be an undue invasion of the jury’s historic function for an ap- 
jsellate court to . . . judge the credibility of witnesses . . .” ); Tennant 
V. Peoria 0  Pekin Union R. Co., 321 U.S. 29, 35 ( 1SH4) ( It is the 
jury, not the court, which . . . judges the credibility of witnesses . . . ).

^*See alio Ellis V. Union Pacific R. Co., 329 U.S. 649, 643 (1947); Lav­
ender V. Kurn, 327 U.S. 645, 652 ( 1946); Bosley v. Central Vermont 
R. Co., 319 U S. 350, 353 ( 1943), Richmond 6  Danville Railroad Co. 
V. Powers, 149 U.S. 43, 46 (1893).



'Hie drawing of inferences from both disputed and un­
controverted testimony is also ordinarily a matter tor the

—2&—

jury . 3 5

It is the jury, not the court, which . . . draws the ulti­
mate conclusion as to the facts. The very essence of 
Its function is to select from among conHicling infer­
ences and conclusions that which it considers most
reasonable.

Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 35 
(1944) In the instant case the trial judge instructed the 
jury, correctly and without objection, that it could “make 
deductions and reach conclusions which reason and com­
mon sense lead you to draw from the facts which have been
established___ ’’ (J A- 31). The drawing of such inferences
“in the light of common experience” (J.A. 31) is consigned 
to the jury because of the very wealth and diversity of ex­
periences which the members of the jury bring to then- 
deliberations.

a../-7/n V. Uu.ou Paafu K. Co., 329 US. a. 633 r U h  would be an m- 
vasKin of ibc jury s funcoon for an apj-llaie court I*-"' 
n.feiences. T.lUr v. Arlanlu Coa>t L,»e k. Co., 318 U S. 3 l. 68
( 1943) (where ' fair-minded men may draw dillcrem mfctentcb, the
ca»e iliould go to the jury )■

;ni 'Twelvc men of the average of the community. compriMUg men of edu­
cation and men of little education, men of learning and men whose 
learning consists only in what they have themselves sern and heard, the 
merchant, the mechanic, the farmer, the laborer, these sit together, cen- 
sult. apply their separate experience of the affairs of life lo the fact 
proven and draw a unanimous conclusion, 'n.is average judgment tJms 
given it is the great elfort of the law to obtain. It is assumed that 
twelve men know more of the common tdfa.rs of life than does one 
man. that they can draw wiser and safer conclusions from adm.tted 
facts thus occurring, than can a single judge." .Vio/ix Cay 6  / uei/.c k .k . 
Co. V. Siout, 84 U.S. 657. 664 (1874).

-27-

The application of Monell frequently requires, as it did 
here, that the finder of fact resolve conflicting evidence and 
draw inferences regarding policies, customs, causation, and 
the delegation of authority. Several of the cases cited by 
petitioner reflect an ill-conceived inclination on the part of 
the lower courts to usurp the role of the jury  in such m at­
ters. But nothing in Monell suggests that the factual issues 
made critical by that decision are to be resolved by courts. 
There is “no reason, so long as the jury  system is the law 
of the land, and the jury is made the tribunal to decide dis­
puted questions of fact, why it should not decide such ques­
tions as these as well as all others.” Jones v. East Tennes­
see, V. & G. R. Co ..128 U.S. 443, 446 (1898).

Deference to the preeminent role of the jury is partic­
ularly appropriate in actions such as this seeking redress 
for unconstitutional conduct by government officials. Al­
though the Seventh Amendment’s right to trial by jury 
extends to the most mundane conunercial and tort litiga­
tion, the prim ary concern which led to the adoption of that 
guarantee was a desire to assure that in civil as well as 
criminal cases juries would protect and enforce the sub­
stantive rights guaranteed by the Constitution. The men 
who framed the Seventh Amendment were well aware of 
the critical role which civil juries had played in establish­
ing the right against unreasonable searches and seizures.*’ 
Thomas Jefferson insisted that jury trials were “the only 
anchor yet imagined by man, by which a government can

*’For a discussion of the infamous Wilkes case, and the resulting litiga­
tion, see, e.g., G. Rude, Ik'jRei ami Liberty, 17-37 ( 1962).



be held lo the principles of its constitutton The Vii 
smia convention resolved that "in snits between man and 
man, the an cen t trial by jnry Is one of the greatest se­
curities to the rights of the pa.ple, and 1 ought 1 to remain 
sacred and inviolable." ”  The first draft of the Seventh 
Amendment also characterized trial by jury in civil cases 
as "one of the best securities to the rights of 
This Court emphasizcKi in llotipcs v. fastm i. lOfi US, 4011. 
413 (181121, that the right of trial by jury  in civil cases was 
intendetl as "a fundamental guaranty of the rights am i 

erlies of the people.
In Parklane Hosiery Co. V. Shore. 439 U.S. 322 (19791, 

Justice Rehnquist observed that the Seventh Amendment 
was adopted in part because its framers believed that J u n e s  

would often be more vigilent than judges in enforcing fun- 

dumental liberties;
The founders of our Nation considered the right of trial 
by jury in civil cases an important bulwoik against 
tyranny . . .  a safeguard too precious to be left to he 
whim of . . . the judiciary. . . . iT jhe concerns for the
institution of jury trial that led ^  
the Declaration of Independence and to the Seve 
Amendment were not animated by a belief that use o 
juries would lead to more enicient judical administra­
tion. Trial by a jury of laymen rather than by the 
sovereign’s judges was important to the founders be­
cause juries represent the layman’s common sense^ 
and thus keep the administration of law m 
the wishes and feelings of the community. . . Ihose

aT5 n e  o/ Thomas JelJersou 71 (Wasl.ing.on ed. 1861).

:n.3 J Elliot, The Debates ,n the Several Stale Convent,ons on the AJop 
non of the hederal Constitunon 658 (1856).

n»i Annals of Cong 435 (1789).

^ 2 8 —
who favored juries believed that a jury  would reach 
a result that a judge either could not or would not 
reach.

439 U.S. at 343-44 (dissenting opinion). Where, as here, 
the vindication of fundamental rights and liberties is at 
issue, federal judges should be particularly reluctant to 
interfere with the institution which the Seventh Amend­
ment contemplates will prevent or provide redress for vio­
lations of the Constitution.

—29—

(3 )  The Evidence in This Case

The evidence adduced at trial was sufficient to w arrant 
submitting the issue of municipal liability to the jury on 
each of three distinct theories. First, there was substan­
tial evidence from which the jury could have inferred that 
the shooting of Tuttle under the circumstances of this case 
was authorized by city policy. Second, there was sharply 
conflicting evidence with regard to whether the shooting 
at issue had been caused by a city policy of inadequately 
training police officers. Third, there was similarly conflict­
ing evidence regarding w hether the city policy regarding 
the supervision of rookie officers had led to Tuttle s death.

(1) The defense theory in the district court, as we 
noted earlier, was that Rotramel’s conduct was in every 
respect “reasonable, proper and legal.” (J.A. 23). See pp. 
7-10, supra. At trial officer Rotramel insisted that his shoot­
ing of Tuttle was entirely consistent with departmental 
rules requiring the “utmost discretion” in the use of his 
gun;

Q. And you knew that you were to exercise the u t­
most discretion in the use of your weapon?



A. Yes, sir.
Q And you really didn’t exercise the utmost discre­

tion in the use of your weapon, did you, sir.

A. Yes, I did.
•  * ♦

Q, If you had to do it over, would you do it again?

A. Yes, sir I would have to.
Q. Without any hesitation?

A. Yes, sir.
Q. That’s the way they trained you, isn’t it?

A. I believe so.
(Tr 587-88- J A. 227). Former Police Chief Hagey,^' who 
was the chief of police when Tuttle was killed, testified that 
Rotramel was authorized to use his gun if he believed, how­
ever mistakenly, that Tuttle was armed and dangerous.

Q. Would you shoot him?

A. 1 don’t know.
Q. Would you be justified in shooting him?

A. If I thought my life was in danger, yes, sir.
Q. At that point and time and that h y p o th e tic a l , 

would you be justified in shooting iiim ?
A Well see, you’re asking for somebody’s answer, 

bu, i mere. I don’t know. 1 don’t know
what the officer felt at that time.

. r P i T ^ r h i e l ’. name is .n l.c. spclkd ’’H w ”. to. p w ,« es  of 
consistency with the Keto.J. howces. we use il.e inio.teu spci I  
"Jlagcy” which occurs ihroughoui the transcript.

—30—
(Tr. 418-19).^- Other officers give conflicting testimony 
regarding whether they understood Rotramel was author­
ized to kill Tuttle under the circiynstances of this case.**

There were similar conflicts regarding other possibly 
critical aspects of departmental policy. Captain Adams tes­
tified that officers were permitted to shoot without actually 
waiting to see if a suspect had a gun (Tr. 339); officer 
Routon insisted that officers were instructed not to shoot 
until they saw a gun. (Tr. 431). Chief Hagey stated it was 
city policy that where possible officers were to shoot to 
wound and thus “stop a person from doing what he intends 
to do’’ (Tr. 394); but another officer insisted police were 
only taught to shoot to kill, and Rotramel testified he never 
considered shooting to wound. (J.A. 162, 225). Officer Rou­
ton stated that officers were instructed never to shoot “if 
there is the slightest doubt’’ (Tr. 432); but Chief Hagey 
swore that officers were authorized to shoot even if there 
is “a certain amount of doubt.” (Tr. 353).

In this Court petitioner, disregarding all of this testi­
mony, relies exclusively on the section 9.03 of the police 
manual, which provides “a police officer is justified in using 
his firearm only in defense of life and instances where the 
suspect is armed and/or making an attem pt to kill or do

—31—

■*̂ Sce also id. at 424;
"Q. Okay. Are you jusc telling this jury chat if that olEcer thought 

he was going for a gun, he was encided to shoot hint and kill 
him dead.’

A. I'm saying if the oflicer thouglic he was going for a gun, the 
ofTicer had a right to stop him, yes."

**Tr. 144-46 (no), 160 (yes), 170 (no), 475 (probably not), J.A. 245- 
48 (no), 262-64 (probably not).



V ’’ ( P B r  6 19). Petilloner suggests thatgreat bodily harm. U or. «, i^».
fhis section means that only a suspect who is in /net armeal 
and dangerous may be shot, and that an ontcer would v.o- 
lale that policy il he used his weapon m a mistaken he 
« l t  his 1  was ,n danger. But neither Clue, Hagey nor 
any other officer who testilied umlerstoint 
the written rules to impose such strict liability. Clue, lagey 
explained that Section 9,03 aulhorizerl police officeis to i 
..m defense obviously of their life or when they M ienc t ,e 
l,fe is threatened . . .” (Tr, 373) (emphasis addedb 
Ihe witnesses apparently agreed that city policy autlioi izcc 
Z  of a firearm based on a mere belie, that a suspect

was armed and dangerous.
Petitioner’s argument clearly illustrates the danger m 

construing city policy solely by referciice to the cold lette 
of city manuals and memoranda, rather than by relying 
,n acLal practice and the understanding of city olhciaK 
MoiiCl itself cautioned that actual
law than the dead words of the written tex , 4 0 U ^  t
691 n 5C In Monroe V. P.ipc this Court noted that the C 
gress which framed Section 1983 was primarily concerned 
with abuse, that had occurred tinder color of 
not contained in “the state law on the books. .3b .^.
176 see also id. at 174.183, It the mere adoption of an empty 
rule forbidding on unconstitutional practice 
sively establish the existence of a munltipa P° “-S'. 
Moriell and Monroe would be a dw d letter. ee ivi 
Rights Litigation after Moiiell." 79 C ol, L. Reu. 31.i,

( .hr <■««■ ““  '■>
life is ilircaieiicvl a( iliai )

—32—
(1979). In this case the jury, although concluding that 
Rotramel had no reasonable basis for fearing that Tuttle 
would shoot him, was certainly entitled to credit the testi­
mony of Chief Hagey and other witnesses that Rotramel s 
action was nonetheless authorized by city policy.

(2) A considerable portion of the trial was concerned 
with whether the killing of Tuttle was the result of inade­
quate training policies. As petitioner notes, Rotramel re­
ceived the same training as all other cadets. (P.Br. 21). 
Petitioner acknowledged that tlie training program repre­
sented official policy, but insisted that the training was en­
tirely adequate and had not caused the shooting at issue.

Much of the testimony supporting respondent’s attack 
on petitioner’s training policy was elicited from officer Ro­
tramel himself in a deposition that was subsequently ad­
mitted into evidence . Rotramel repeatedly acknowledged 
that his training appeared to be inadequate.'*® Rotramel 
identified half a dozen areas in which he had never received

—33—

^®J.A. 133:
"Q. Can you tcil me under oath that you were adequately trained 

to handle that specific situation.’
A. No."

J.A, 159:
"Q. Perhaps they didn't quite train you well enough in that situa­

tion, did they?
A. Perhaps.”

J.A. 162-63:
"Q. So perhaps you weren’t as well trained by your employer as you 

should have been in that specific situation, is that a fair state­
ment?

A. Yes."



any Ira.nmg, including whether to wait tor a backup nn.t.^' 
how to handle an aimed robbery call as a single oll.cer 
how to enter a building m which an armed robbery might 
he taking p lace ,- especially it the building had no win­
dow s.'” how to apprehend a lleemg ■*"
shoot a suspect so as to disable but not to kill him,- I^o- 
tramel conceded that, had he been given this training, 
tie might well not have been killed.-'-

Respondent also relied on the testimony ot an expert 
on police training and procedure. Dr. George Kmkham^ 
Dr Kirkham had experience in the training ot ofl.ceis in 
some 50 different law entorcement departments across 
country, including the F B I., and was the author ot a num-

—34—

' “J A. 147, 152, 153.

<iJA. 146.

^'’JA. 146.

^“j.A. 146, 152.

A. 159. 164 65.

A. 162.

And .f you would have been adequately trained that si^cihc 
situation, Mr Tuttle would be alive. . ■(

A. That’s possible."

'  ■ '-o'^Do ,..u iliiiik II ""■■'‘I
^  L .C  been .1.11. It t in  '“ ■* "

ing?
A It's possible.
Q So your answer is yes.

A. Yes."

ber of the training manuals actually used by Oklahoma City 
Police Department. (J.A. 271-282). Kirkham characterized 
the city training program as "slipshod” (J.A. 288), and 
identified many of the same deficiencies in the training pro­
gram that had been recognized by Rotramel himself, in­
cluding the lack of training regarding waiting for a backup 
unit,®3 entry into a building in which a robbery was in 
progress,®^ and apprehension of a fleeing or dangerous sus­
pect.*® Kirkham emphasized that the Oklahoma City train­
ing program focused heavily on how to kill a suspect, with 
little consideration of how to investigate a crime without 
resorting to violence. 'Fhat training program provided some 
80 hours of practice on the firing range, but only 24 minutes 
of instruction concerning how to act at the scene of an 
armed robbery.®" Kirkham explained;

[O lf course its fine for officers to know the . . . me­
chanics of firearms use, but its also important for them 
to understand from the practical standpoint, the cir­
cumstances in which one uses firearms, . . . and these 
things apparently were not gotten across.

(J.A. 288). Kirkham concluded, as had Rotramel, that "(i]f 
he had been properly trained and supervised, the occur­
rence would not have taken place.” (J.A. 301; see also J.A. 
286,288).

The city offered in response to this testimony evidence 
which, as petitioner’s brief makes clear, might, if credited

—35—

®3J.A. 286, 289, 291. 292, 301, 302. 

®«J.A. 286-91.

®®J.A. 294, 300-01.

»«J.A. 287-88, 302-04.



by the jury, have led to the conclusion that the city training 
policies had not caused the constitutional violation at issue. 
(RBr. 6-7). But the direct conllicts in the evidence ad­
duced by the parties, and the ditlering inferences that 
might have been drawn from that evidence, were matters 
for the ju ry ’s consideration.

The city urges that the evidence of inadequate train­
ing was “irrelevant.” asserting that any defective training 
concerned only the time and manner in which oflicer Ro- 
tramel entered the bar (P B r. 8). In fact both Rotramel 
and Kirkham noted that the city had failed to provide ade­
quate training concerning the manner in which Rotramel 
should have acted after both he and Tuttle left the bar. 
In addition, as Kirkham noted. Rotramel’s ill considered 
conduct prior to the actual shooting had needlessly placet! 
Rotramel in a potentially dangerous situation and created 
the very ill founded fears which led to Tuttle’s death. The 
jury of course, was not obligated to find that the shooting 
was caused by any aspect of Rotramel’s training, but the 
question of whether that training was in fact the cause of 
the shooting was an issue for the jury to resolve.

(3) There was a somewhat simpler conflict regaiding 
whether the shooting of Tuttle was caused by the city’s 
supervision policies. Chief Hagey testified that ideally a 
rookie cop should not be permitted to patrol alone in a 
squad car until he or she had at least 18 to 24 months ex­
perience on patrol with a senior olllcer. (Tr. 369-372). At 
one time the city had apparently enforced a rule that no 
rookie could be placed on solo patrol without at least one 
year of experience. (Tr. 199). At some undetermined time, 
however, that rule was relaxed because of a shortage of

—36—
—3 7 -

manpower. As of 1980 rookie officers were permitted to 
patrol by themselves as soon as six months after they left 
the police academy. (Tr. 200). In this Court, as at trial, 
the city defends this practice as a method of saving money. 
(Tr. 206, 446; P.Br. 22).

Respondent contended that officer Rotramel should not 
have been permitted to drive alone in a squad car, not ac­
companied by a senior officer. In this regard the substance 
of city policy, which perm itted rookies to patrol alone with 
less than one year of experience, was undisputed. The dis­
agreement among the parties was limited to the question of 
whether that policy of putting rookies on the street without 
direct supervision had led to the shooting of Tuttle. Dr. 
Kirkham testified that Rotramel was too inexperienced to 
have been in a solo patrol car (J.A. 302), and that the re­
sulting lack of direct supervision was cause of the killing 
which followed. (J.A. 301). The petitioner defended the 
six month policy, and offered testimony designed to show 
that that policy had not been a factor in Tuttle’s death. The 
conflicting evidence regarding the issue of causation was a 
m atter for the jury to resolve.



—38—

II. THE “ QUESTION PHESENTEO” BY PETITIONEK 
IS NOT IN FACE PHESENTEO BY THIS EASE.

The question presented framed by petitioner is as fol­

lows:
W hether a single isolated incident of the use of exces­
sive force by a police oflicer establishes an onicial policy 
or custom of a municipality suflicient to render the 
municipality liable in damages under 42 U.S.C. § 1983. 
(P.Br. i).

Read literally the issue thus cast is whether a plaintiff who 
proves no more than that he was the victim of one act of 
police brutality is entitletl as a m atter of law to a judgment 
against the oflicer’s employer.

Petitioner’s brief is devoted largely to a discussion of 
whether the mere existence of a constitutional violation 
would in every case not only permit but compel such a 
verdict. Thus at page 7 petitioner describes the issue as 
“whether a single isolated occurrence of tlie use of exces­
sive or deadly force results in municipal liability under 42 
U.S.C. § 1983.” (Emphasis added). On page 8 the brief 
states, ‘‘The City of Oklahoma City asserts that the single 
act of Rotramel in shooting Tuttle . . . does not establish 
an ‘olhcial policy or custom’ of Oklahoma City. And at 
page 14 petitioner relies on several lower court decisions 
which it characterizes as holding that “a single act or iso­
lated incident is insufiicient to establi.sh municipal liability

under S 1983.”
Were the instant case one in which respondent had 

proved only that Tuttle was killed by an Oklahoma City 
police officer, and had failed to offer any direct proof of the

substance of city policies or the circumstances of the shoot­
ing, the question presented by petitioner would be of ob­
vious relevance. But respondent offered far more evidence 
than merely that incident of excessive force; she adduced 
testimony directly bearing on the nature of city policies 
regarding training, supervision, and the use of firearms by 
police, as well as testimony that those policies had caused 
the killing of her husband. Both the certiorari petition and 
the brief for petitioner are cast in such a way as to suggest 
that no such evidence had ever been presented. With re­
gard to the city’s training policies, for example, petitioner 
argues:

How can it seriously be contended that Oklahoma City 
had “an official policy or custom” of giving its police 
officers grossly inadequate training? Where is the proof 
that would support such a bazaar [sic] contention? 
Such proof does not exist. (P.Br. 21).

If this is an assertion that no witness ever testified that the 
city training policies were inadequate, it is simply false.

Petitioner argues persuasively against the notion that 
the mere occurrence of a single constitutional violation 
should invariably compel a finding of municipal liability. 
Such a rule would be inconsistent w ith both MonelVs re­
jection of the doctrine of respondeat superior, and with 
the constitutionally protected prerogatives of civil juries. 
But the implausible doctrine which petitioner denounces 
had never been advanced by respondent, was not adopted 
by either court below, and is not presented by the record 
in this case.

—3&—



Ill MONELL DOES NOT HE<^IJ1HE THAT H IE  MU­
NICIPAL POI-ICY OH DECISION WHICH INJUHED 
A PLAINTIFF HAVE ALSO INJUHED OTIIEH IN­
DIVIDUALS.

• Petitioner appears to make in tlie alternative a second 
argument, that liability cannot be imposed under Mmiell 
unless a plaintiff proves the existence of a series of constitu­
tional violations caused by the same offending policy or 
custom. Thus petitioner asserts that “a plaintiff should be 
required to submit probative evidence of a regular pattern 
of unconstitutional deprivation of citizen’s rights before 
municipal liability can attach under § 1983.” (P.Br. 17; see 
also id. at 22). Assuming, arguendo, that this contention 
is fairly encompassed within the question presented, it is 
clearly without merit.

Insofar as petitioner is arguing a plaintiff prove Iwtii 
the existence of a policy or custom imd “a regular iiattern 
of unconstitutional deprivation!si,” that argument is en­
tirely inconsistent with the decision in Monell. Manell im­
poses liability for all official action or custom that causes 
a constitutional violation, and is not limited to actions or 
customs that happen to injure scores or hundreds of inno­
cent victims. Mcmell expressly provided that an ofhcial “de­
cision” would suflice to establish liability, although a single 
decision will often have only a single victim. 436 U.S. at 
690. Section 1983 imposes liability on a defendant which in­
flicts a deprivation of constitutional rights on “any citizen of 
the United SUites or any other person,” not on “a series of 
citizens” or “yet another person.” The policy which served 
as the basis of municipal liability in Oioen v. Citij of Inde­
pendence was, to use petitioner’s terminology, “a single

isolated” decision with “a single isolated” victim. Had the 
Oklahoma City council adopted an ordinance directing the 
summary execution of Mr. Tuttle, it is inconceivable that 
the city could have avoided liability under Monell by argu­
ing that there was only one name on its hit list. Even' an 
ongoing policy may, because of its particular nature, only 
result in occasional, although foreseeable, constitutional vi­
olations.

Even where a municipal policy is likely to injure a 
large number of victims, nothing in Monell requires that 
redress be denied to the early victims, or that injunctive 
relief be withheld until the body count or destruction of 
property has reached catastrophic proportions. If Oklahoma 
City were to adopt a policy of expelling all Catholics from 
the public schools, but was enjoined from implementing 
that policy after the first few expulsions, surely the success 
of that injunctive action would not preclude the actual 
victims of that short lived policy from obtaining compen­
satory relief. The doctrine advanced by petitioner would 
require an aggrieved plaintiff to base his or her claim in 
large measure on evidence that a defendant had violated 
the constitutional rights of a large number of unrelated 
third parties; ordinarily, however, a plaintiff is not per­
mitted to “rest his claim to relief on the legal rights or 
interests of third parties,” Worth v. Seldin, 442 U.S. 490, 
499 (1975), and cannot vindicate in federal court a “gen­
eralized grievance” shared by a large class of citizens. 
Schlesinger v. Reservists to Slop the War, 418 U.S. 208 
(1974).

Petitioner’s contention is equally indefensible as a rule 
of evidence. Proof of a pattern of violations clearly cannot

— 41—



be reciuired where a plaintiff seeks to establish the exist­
ence of a decision, policy or custom that by its very nature 
hail only a single victim, or which has as yet caused but a 
single injury. The existence of a pattern of violations, like 
the occurrence of a series of accidents with a piece of ma­
chinery, may indicate that existence of a common cause, 
see Teamsters V. United States, 431 U.S. 324, 349 (1977), 
but such a pattern is certainly not the only or necessarily 
the best way to establish the elements of causation or oHi- 
cial action. Frequently, as here, a plaintiff will be able 
to rely on direct evidence of the causation and ofTicial ac­
tion behind his or her injuries, rather than relying on the 
experiences of third parties. In this case the city might 
have augmented its defense with proof that such shootings 
had not occurred, and the plaintiff might have strengthened 
her case with proof of other shootings, but the absence of 
such arguably relevant evidence is not conclusive of the 
claims of either party.

In some cases, of course, a plaintiff will advance a 
theory of liability which by its own terms is basetl on a 
pattern of constitutional violations. The lower court cases 
relied on by petitioner are generally of this variety. If a 
plaintiff alleges the existence of a custom, proof of “per­
sistent and widespread practices” is expressly contemplated 
by Manell. 436 U.S. at 691." Where a plaintiff contends 
that his or her injury was caused by a failure to discipline 
government employees who earlier engaged in similar un-

0/ SI,Jell, 728 F.2d 762. 768 (5ihCir. WW) (̂ en 
banc) C.,l,nore V. Cuy of AdanU, 737 F.2d 894. 902. 904 (Ih h C .r. 
1«)8.1); U'eOaer V. C„y of llouaon, 73-> F 23 838. 840. 842 (5.1, Or.
1984).

—42—

consttutional conduct, both such prior conduct and a lack 
of disciplinary action will have to be shown.®* Similarly, 
a claim that responsible supervisory officials failed to put 
a stop to a known pre-existing unconstitutional practice 
will require evidence of that earlier practice.®* But in the 
instant case respondent’s claim was not based on any theory 
which necessarily asserted the existence of any pattern of 
constitutional violations.*®

Even in a case such as this, a defendant could urge 
the jury to discount the evidence adduced by plaintiff be­
cause there was no proof of “a regular pattern of uncon­
stitutional deprivation[sj.” A jury would be free to draw 
any reasonable inference it saw fit from the absence of 
such evidence. The arguments now advanced by petitioner, 
suggesting that this Court infer from that lack of such evi­
dence that the city was without fault, are arguments that 
could and should have been made to the jury that heard 
this case and was responsible for drawing such inferences. 
Petitioner’s trial counsel, however, apparently considered 
its “single incident” argument to be little more than a legal 
technicality by which to prevent submission of respondent’s

^^Berry V. McLemore, 670 F.23 30, 32 (5t),Cir. 1982); Herrera v. Val- 
enttne, 653 F.23 1220, 1224-25 (8thCir. 1981); Turpin v. MaUet, 619 
F.23 196, 202-03 (23Cir. 1980); sec also J A. 58.

■'<*McClelland v. Facteau, 610 F.23 693. 697-98 (10thCir. 1979); V'el- 
ington V. Daniels, 717 F.23 932, 937 (4thCir. 1983).

'***Thc 3ecision in l^anguirauJ V. Hayden, 717 F.23 220 (5thCir. 1983), 
3oes appear to limit liability un3cr Monell to policies an3 decisions 
that cause multiple violations. For the reasons set forth above, we urge 
that Languirand was wrongly decided.



claims 10 Iho jury; p C lio n e r’s counsel, c lh e r  regard.uB Ihe 
inferential force of this argument as unpersuas.ve, or recog- 
mrm g that the existence of other evidence made the iss.m 
irrelevant, never bothered to urge the jury itself to draw 
any adverse inferences from the fact that respondent had 
proved only a “single isolated incident.

In any Mo/icll action the nature and circumstances of 
the particular constitutional violation at issue will, as even 
petitioner appears to acknowledge, be relevant ev. ence 
with regard to the issues of causation, custom, or othc.al 
action. The weight of such evidence will ordmarily be a 
m atter of dispute. The trial judge properly referred to he 
jury the task of assessing the inferences from that and the 
rest of the evidence. At petitioner’s urging the distiic 
court cautioned the jury not to give undue weight to the 
shooting of Tuttle in determining the existence o a ci y 
policy."* * Although that cautionary instruction apparently 
fell short of what petitioner might have wished petitionei 
failed to “state distinctly the m atter to which | . t |  ob-

die first .x.r.ion of wind, is otn.ncd in petitioners 

brief, wus as follows;
• Absent more evidence of supervisory indifference, such as acquiescence 
tl^ a  ...o r matter of conduct, ollicia. policy ^

'iZ in g  «  .nioumiiig lo ad ib i,:.,. in.I.lfcrcW  g.oii
negligence’ on .he par. of the olhc.als ... charge

J A. 44

ject[ed] and the ground of (itsj objection” as required by 
rule 51, Federal Rules of Civil Procedure.®'*

The instructions in this case, considered as a whole, 
were clearly correct. See Castle v. Bullard, 65 U.S. 172 
(1859). The trial judge properly left to the jury  the re­
sponsibility for deciding what inferences, if any, were to 
be drawn from the circumstances of the Tuttle shooting 
with regard to the cause of that tragic incident. Section 
1983 was enacted against a background of tort law which 
clearly permitted a jury  to draw such inferences in an ap­
propriate case.®® Nothing in Monell or the legislative his­
tory of section 1983 suggests any intent to strip federal 
juries of their established authority to decide whether or

"-Qiunsel for petitioner stated, somewhat opaquely, "we make a second 
objection, your honor, particularly to the one, the Oklahoma City lan­
guage, the language in tlie light of the City of OkJahotna City, which is 
the single .xcurrence language.” (Tr. 693). While this appears to be 
a reference to the instruction quoted in note 61, supra, it is less clear 
which portion of the instruction was regarded as objectionable. More 
seriously, the quoted objection simply contained no explanation of the 
ground of petitioner's objection, and thus was not "sufl.ciently specific 
to bring into focus the precise nature of the alleged error." Palmer v. 
Hoffman, 318 US. 109, 119 (1943). Even in this Court the nature 
of petitioner's contentions remains less than clear.

•‘•'Chief Justice Erie observed in 1865;
" riiere must be reasonable evidence of negligence; bur where the 

thing is shown to be under the management of the defendant . . . 
and the accident is such as in the ordinary course of things docs not 
happen if those who have the management use proper care, it affords 
reasonable evidence . . . that the accident arose from want of care.” 

Scost V. London & St. Katherine Docks Co., 3 H. & C  396, 159, Eng. 
Rep. 665 (1865). Certainly it is possible that the specific circumstances 
of a particular constitutional violation may be 'such as in the ordinary



not the specific circumstances ot an injury warranted any 
conclusions as to its cause. See i-cliecer V. l!liode.s, 416 U.b. 

232, 243-44 (1974).
Since this is not a case in which plaintiff introduced 

no evidence other than proof of a constitutional violation 
any erroneous implications in the instruction with regard 
to such a case was irrelevant. Ihiyper v. Evans, 436 U.S. 
605 (1982). Here neither counsel referred in his opening 
or closing statements to any inferences that might he drawn 
from the Tuttle killing itself, and the jury’s decision regard­
ing omcial action and causation was doubtless baseil on the 
substantial direct evidence adduced with regard to those 
issues. Under these circumstances, the trial court’s instruc­
tions regarding any inference to be drawn from the lu t t le  
killing could have had no more tlian “an inconsequentia 
impact on the ju ry ’s decision regarding” municipality, .an 
V. Stephens, 77 L.Ed.2d 235, 257 (1983).

Petitioner closes its brief with a plea that this Court 
consider “the citizens of the municipality, who bear^the 
financial burden of the judgment through taxation.” (P.Br. 
22) But the verdict of which petitioner here complains 
was rendered by those very taxpayers, men and women 
who were certainly aware of the ultimate source of munici­
pal funds, but who may have been more concerned about 
the dangers they faced if the city failed to improve its

—46—

parnculur cas prescms such circumsianc« .s a matter for the ,ury

—4 7 -

training and supervision policies. Petitioner contended at 
trial that it had done all that could reasonably be asked 
to guide its police olTicers in the use of deadly force; the 
jury found otherwise. Petitioner now urges that by over­
turning that verdict, rendered by a jury selected from a 
cross section of Oklahomans, this Court would somehow 
vindicate “the theory that the people are the ultimate sover­
eign.” (P.Br. 22). The logic of this argument is far from 
apparent. In finding for respondent, the members of the 
jury placed the community’s interest in the vigorous en­
forcement of the Constitution ahead of the city’s interest 
in saving money. That is precisely the choice which the 
framers of the Seventh Amendment contemplated would 
occur, and it is a choice with which this Court should not 
interfere.



COlMCI.rSIOIM

For the foregoing reasons the decision of ti)e court of 

appeals should be aflirmed.

Respectfully submitted,

CARL HUGHES*
MICHAEL GASSAWAY 
Hughes, Nelson & Gassaway 

1501 N. Classen, Suite 200 
Oklahoma City, Oklahoma 73106 
(405) 528-2300 

AttorncTys for Respondent

Of Counsel:
j. leVONNE c h a m b e r s

ERIC SCHNAPFER 
NAACP Legal Defense & 
Educational Fund, Inc. 

yy  Hudson Street 
New York, New York 10013 
(212) 219-1900

December, 1984