Brandon v. Holt Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

    No. .

In the

Olnurt of Hjt HUnxttb
O ctober T eem , 1983

E lizabeth  B randon , et al.,

V,
Petitioners,

J o h n  D. H olt, etc., et al.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

E lizabeth  A. M cK an n a  
686 W. Clover Drive 
Memphis, Tennessee 38119

G-. P h il ip  A rnold
300 E. Main Street 
P.O. Box 760 
Ashland, Oregon 97520

W il l ia m  E. Caldw ell  
731 Center Drive 
Memphis, Tennessee 38112

J ack  Greenberg
E ric S ch n a pper*

16th Floor 
99 Hndson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Petitioners

* Counsel of Record



QUESTION PRESENTED

Did the Court of Appeals er 
holding that a monetary judgment under 
25(d), F.R.C.P., against a public off 
"in his official capacity" imposes per 
liability on the official which he mus 
out of his own pocket?

r in 
Rule 
icial 
sonal 
t pay

1



PARTIES

The plaintiffs in this action are 
Elizabeth A. Brandon and James D. Muse. 
The original defendants were E. Winslow 
Chapman, in his official capacity as 
Director of Police for the City of Memphis, 
and Robert J. Allen. While the case 
was pending in the court of appeals, John 
D. Holt replaced E. Winslow Chapman as the 
Director of Police, and was thus substi­
tuted for him as a defendant by operation 
of Rule 43(c)(1), Federal Rules of Appel­
late Procedure.

The practical issue posed by the 
Question Presented is whether any judgment 
against Holt or Chapman in his official 
capacity operates as a judgment against the 
City of Memphis.



Question Presented ..................  i
Parties ..............................  ii
Table of Contents ...................   iii
Table of Authorities ................  iv
Opinions B e l o w ........    2
Jurisdiction ......................... 2
Rules Involved ...........*..........  3
Statement of the Case ...............  5

Reason for Granting the Writ ......  12
Certiorari Should Be Granted To 
Resolve A Conflict Among the Cir­
cuits Regarding the Effect of a 
Judgment Against A Public Employee 
"In tiis Official Capacity" ... 12

Conclusion ........................... 29
APPENDIX

District Court Findings of 
Fact, Conclusions of Law, 
and Order, July 8, 1981 ... 1a

Opinion of the Court of 
Appeals, October 11,
1983 ......................  29a

Order of the Court of Appeals 
Denying Petition for Rehear­
ing En Banc, December 2,
1983 ......................  45a

TABLE OF CONTENTS Page

- i i i -



TABLE OF AUTHORITIES

Cases: P?£e

Bertot v. School Dist. No. 1, Albany 
County, 613 F.2d 245 (10th Cir.
1979) .............. ....... ..... 25

Campbell v. Bowlin, 724 F.2d 484
(5th Cir. 1984) ................  23

Family Unidas v. Briscoe, 619 F.2d
391 (5th Cir. 1980) ..............  23,26

Gay Student Services v. Texas A. & M.
University, 612 F.2d 160 (5th Cir.
1980) ...........................  23

Hughes v. Blankenship, 672 F.2d 403
(4th Cir. 1982) ................  22

Irwin v. Wright', 258 U.S. 219
(1922) . . .............. .........  * 13

Key v. Rutherford, 645 F.2d 880
(10th Cir. 1981) ..........  25,27

Kincaid v. Rusk, 670 F.2d 737
(7th Cir. 1982) ................  24

McGhee v. Draper, 639 F.2d 639
(10th Cir. 1981) ...............  25,27

Monell v. New York City Dept, of 
Social Services, 436 U.S.
658 (1978) ................ . . passim

Nekolny v. Painter, 653 F.2d 1164
(7th Cir. 1981) ................  24

- iv -



Page

Owen v. City of Independence, 445 U.S 
622 (1980) ....... ................

Paxman v. Campbell, 612 F.2d 848
(4th Cir. 1980) ................

Scheuer v. Rhodes, 416 U.S. 232
( 1974) ..........................

Snyder v. Buck, 340 U.S. 15
(1950) .........................

United States ex rel. Bernardin v. 
Butterworth, 169 U.S. 600 
(1897) ..........................

Universal Amusement Co. v. Hofheinz, 
646 F .2d 996 (5th Cir. 1981) ...

Van Ooteghem v. Gray, 628 F.2d 488
(5th Cir. 1980) .... . ..........

Wolf-Lillie v. Sonquist, 699 F.2d
864 (7th Cir. 1983) ............

Statutes:
28 U.S.C. § 1254(1)
42 U.S.C. § 1983 ..
30 Stat. 822 .....
43 Stat. 936 .....

passim

22

20,25-26

12

13

23,26

23,24

24

2

7
13
13

v



Page

Other Authorities

3B Moore's Federal Practice f 25.01 
[13 J ....................... . 14

vi



No

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1983

ELIZABETH BRANDON, et al.,
Petitioners,

v.
JOHN D. HOLT, etc., et al.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners E1 i zabe t h A . Br• andon
and James D. Muse resp■ ectfully pray
that a Writ of Certiorari issue to review
the j udgment and opinion of the 1United
S t at es Court of Appeals for the Sixth
C i r c uit enter ed in this proceed i. ng on
October 11, 1983



2

OPINIONS BELOW

The decision of the Court of appeals 
is reported at 710 F.2d 151, and is set 
out at pp. 28a-43a of the Appendix. The 
order denying rehearing, which is not 
reported, is set out at p. 44a. The dis­
trict court Findings of Fact, Conclusions 
of law and Order are reported at 516 F. 
Supp. 1355, and are set out at pp. 1a-27a 
of the Appendix.

JURISDICTION
The judgment of the court of appeals 

was entered on October 11, 1983. A timely 
petition for rehearing was filed, which was 
denied on December 2, 1983. On February
22, 1984, Justice O'Connor granted an order 
extending the date on which the petition 
for writ of certiorari is due until March 
31, 1984. Jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).



3

RULES INVOLVED
Rule 25(d), Federal Rules of Civil

Procedure, provides:
(d) Public Officers; Death or 

Separation from Office
(1) When a public officer is a 

party to an action in his official 
capacity and during its pendency 
dies, resigns, or otherwise ceases to hold office, the action does not 
abate and his successor is automatic­
ally substituted as a party. Pro­
ceedings following the substitution 
shall be in the name of the substi­
tuted party, but any misnomer not 
affecting the substantial rights 
of the parties shall be disregarded. 
An order of substitution may be 
entered at any time, but the 
omission to enter such an order 
shall not affect the substitution.

(2) When a public officer sues 
or is sued in his official capacity, 
he may be described as a party by his official title rather than by 
name; but the court may require his 
name to be added.
Rule 43(c)(1), Federal Rules of 

Appellate Procedure, provides:



4

(c) Public Officers; Death or Sep­
aration from Office
(1) When a public officer is a 

party to an appeal or other proceed­
ing in the court of appeals in his 
official capacity and during its 
pendency dies, resigns or otherwise 
ceases to hold office, the action 
does not abate and his successor is 
automatically substituted as a 
party. Proceedings following the 
substitution shall not be in the 
name of the substituted party, but 
any misnomer not affecting the 
substantial rights of the parties 
shall be disregarded. An order of 
substitution may be entered at any 
time, but the omission to enter such 
an order shall not affect the 
substitution.
Supreme Court Rule 40.3 provides:

When a public officer is a 
party to a proceeding here in his 
official capacity and during its 
pendency dies, resigns, or otherwise 
ceases to hold office, the action 
does not abate and his successor is 
automatically substituted as a 
party. Proceedings following the 
substitution shall be in the name 
of the substituted party, but any 
misnomer not affecting the substan­
tial rights of the parties shall be 
disregarded. An oraer of substitu­
tion may be entered at any time, 
but the omission to enter such an



5

order shall not affect the substitu­
tion.

STATEMENT OF THE CASE 
This case arose from the deliberate 

policy of Memphis police authorities of 
refusing to discipline or dismiss police 
officers whom they knew to be dangerously 
violent. The particular officer in this 
case, Robert Allen, had in the words of the 
District Court a

reputation for displaying maladap­
tive behavior well known among 
Police officers in his precinct. 
... Allen's reputation as a "mental 
case" was widespread among the 
officers. (8a)J/

Allen ceremoniously put on what he referred 
to as his "killing gloves" when called to 
the scene of a crime, and expressed a 
morbid fascination with the wounds of a man

1/ See also 26a-27a (Allen's "dangerous 
propensities were widely known among 
officers of the Department").



6

he had killed (Id.). By 1977 Allen's 
personnel records contained some 20 com­
plaints of abuse of authority and unneces­
sary force (11a). Allen's behavior was so 
bizarre that none of his fellow officers 
were willing to ride in a squad car with 
him (9a). the City of Memphis, however, 
armed Allen with a gun and a badge and set 
him loose on the citizens of the city.

This inexplicable practice led to a 
predictably tragic result on the night of 
March 5, 1977. At 11:30 p.m. that evening 
two high school students, Elizabeth Brandon 
and James Muse, were on a date and parked, 
as young couples are wont to do, in a 
secluded area. Allen, after identifying 
himself as a Memphis police officer, 
ordered Muse to step out of the car. After 
briefly questioning him, Officer Allen 
maliciously, and without provocation, 
assaulted Muse with a knife, stabbing



7

him in the neck and ear. When Officer 
Allen tried to break into the car where Ms. 
Brandon was seated, Muse jumped into 
the driver's side and quickly drove away. 
Officer Allen then drew his service re­
volver and shot at the fleeing couple. 
The bullet shattered a window in the car 
and struck Brandon in the face. Muse 
required surgery for his wounds, and was 
permanently disfigured. (5a-8a). Neither 
Brandon nor Muse were ever charged with or 
suspected of any offense; Officer Allen was 
ultimately indicted and convicted of 
assault with intent to murder in connection 
with this incident.

Petitioners Brandon and Muse commenced 
this action in the United States District 
Court for the Western District of Tennes­
see, alleging a violation of their rights 
under 42 U.S.C. § 1983 and the Fourteenth 
Amendment. Petitioners named as defendants



8

Officer Allen and the Director of the 
Memphis Police Department, then E. Winslow 
Chapman. Allen, who by then had finally 
left the Memphis Police Department, 
never appeared or answered the complaint. 
A default judgment was subsequently entered 
against Allen, but he was in jail when this 
case came to trial, and apparently lacks 
significant personal assets. The litiga­
tion therefore proceeded to trial against 
Director Chapman "in his official ca­
pacity."

The district judge found that the 
responsible Memphis authorities engaged in 
several official practices which predict­
ably led to Allen's assault on petitioners. 
First, it was the express practice of 
Director Chapman not to take disciplinary 
action against officers known to engage in 
unlawful violent conduct. (14a, 23a).
Second, there was a "code of silence among



9

the officers" pursuant to which no members 
of the force would testify regarding known 
misconduct by their colleagues. (14a, 
22a). Third, the internal procedures 
established by Director Chapman imposed on 
supervisory officers no duty to investigate 
or report on dangerous propensities on the 
part of their subordinates. ( 1 2a-13a ) . 
Fourth, it was Director Chapman's policy 
not to read citizen complaints of police 
misconduct sent to his office. In Allen's 
case, for example, Chapman had signed 
letters to two complainants stating that 
Allen's behavior was being investigated 
(22a-23a); Chapman testified under oath, 
however, that he had never heard of Officer 
Allen prior to the assault on petitioners, 
and that he was unaware of the charges 
against Allen about which he had written to 
the two earlier complainants. (13a, 20a). 
Based on these subsidiary findings the



10

district judge held that Director Chapman 
should have known about and taken steps to 
curtail Allen's violent conduct, and 
awarded damages against Chapman "in his 
official capacity". (2 2 a- 2 7 a ) . The 
district court understood that that award 
was in fact a judgment against the city of 
Memphis, noting that an "official capacity" 
suit is "an action against an entity of 
which an officer is an agent" (16a).

While the case was on appeal Chapman 
left office, and was replaced as Police 
Director by John D. Holt. Since the 
lower court decision was against Chapman 
"in his official capacity", Holt was 
automatically substituted as the named 
defendant by operation of Rule 43(c)(1), 
Federal Rules of Appellate Procedure. On 
October 11, 1983, the court of appeals held 
that a judgment against a public official 
"in his official capacity" was as a matter



of law a judgment against the official as 
an "individual" (38a), to be paid out of 
his own pocket. The Sixth Circuit thus 
reasoned that, although the city of Memphis 
could claim no good faith immunity in light 
of Owen v. City of Independence, 445 U.S. 
622 (1980), Director Chapman "in his 
official capacity" was entitled to invoke 
that defense. Although the trial court 
had never considered or decided whether 
Chapman had acted in good faith, the Sixth 
Circuit proceeded to consider this factual 
issue nisi prius, and held that Chapman had 
demonstrated the requisite good faith. 
(38a). Accordingly, the court of appeals 
directed that the claim against him "in his 
official capacity" be dismissed. (33a).



12

REASONS FOR GRANTING THE WRIT
Certiorari Should Be Granted To 
Resolve A Conflict Among the Cir­
cuits Regarding the Effect of a 
Judgment Against a Public Employee 
"In His Official Capacity"

The Sixth Circuit decision in this 
case creates in a single blow the proce­
dural and substantive problems regarding 
"official capacity" actions which Justice 
Frankfurter a generation ago characterized
as a "legal snarl ... compounded of confu-

2/sxon and artificialities."- For at least 
a century prior to 1961 uncertainty 
about when suits against public officials 
were to be treated as suits against the
entities for which they worked divided

3/this Court, confused the lower courts 
and ensnared unwary litigants. Repeatedly

2/ Snyder v. Buck, 340 U.S. 15, 22 (1950) (dissenting opinion).
3/ See, e.g. id.



1 3

pointing to the procedural problems posed
by suits against public employees in their
official capacities, this Court on several
occasions successfully called upon Congress

4/to adopt clarifying legislation.— These 
problems, the Court emphasized, imposed 
unreasonable burdens on the courts and 
litigants alike.

Under the present state of the law, 
an important litigation may be 
begun and carried through to 
this court after much effort 
and expense, only to end in dismis­
sal .... 5/

Despite the enactment of legislation in 
6/ 7/1899— and 1925 ,~ and the provisions of 

the Rule 25 of the 1937 Federal Rules of 
Civil Procedure, these problems continued

4/ Irwin v. Wright, 258 U.S. 219, 223, 
224 (1922); United States ex rel. Bernardin 
v. Butterworth, 169 U.S. 600, 605 (1897).
5_/ Irwin v. Wright 258 U.S. at 224.
6/ 30 Stat. 822, ch. 121.
2/ 43 Stat. 936, 941, ch. 229.



14

until 1961. In 1961 the Advisory Committee 
noted that Rule 25 as it then existed was 
"generally considered to be unsatisfac­
tory," operating at times as "a trap for
unsuspecting litigants which seems unworthy

8/of a great government."
Rule 25(d) was amended in 1961 in the 

hope of ending once and for all the snarl 
of which Justice Frankfurter had com­
plained. As amended Rule 25(d) expressly 
recognized and regulated actions which were 
"brought in form against a named officer, 
but intrinsically against the govern—

9 /ment. The Committee Note explained
that in a Rule 25(d) action against an 
officer "in his official capacity" any 
judgment was to provide "relief ... by the

8/ Quoted in 3B Moore's Federal Practice, 
1f 25.01 [13] .
9/ Id.



15

one having official status, rather than one
who has lost that status and power through

10/ceasing to hold office."—  Rule 25(d)
"official capacity" actions were by defini­
tion limited to litigation seeking relief 
against whichever official might hold the 
office. A plaintiff seeking a monetary 
award to be paid by the government is 
directed by Rule 25(d) to sue the relevant 
official "in his official capacity"; that 
Rule is inapplicable to a suit seeking to
compel a defendant official "to ... pay

10a/damages out of [his] own pocket[]." 
Since an "official capacity" defendant is 
merely a representative of the entity for 
which he works, Rule 25(d) provides that if 
a new official is appointed to the position 
of the named defendant, that new official

10/ id. 
10a/ Id.



16

will automatically be substituted as the
nominal defendant.

This Court has twice held that in a 
Rule 25(d) action against an official "in 
his official capacity" any monetary 
award runs against the public entity for 
which the official works, not against the
official personally. In Monel1 v. New York 
City Department of Social Services, 436 
U.S. 658, 690 n. 55 (1978), the Court 
explained:

Since official capacity suits 
generally represent only another 
way of pleading an action against an 
entity of which an officer is an 
agent ... our holding today that 
local governments can be sued under 
§ 1983 necessarily decides that
local government officials sued in 
their official capacities are 
"persons" under § 1983 in those 
cases in which, as here, a local 
government would be suable in its 
own name.

Because it regarded a suit against an 
official in his official capacity as a



judgment against the governmental entity 
for which he worked, the Court in Monell 
held such "official capacity" suits proper 
when, but only when, the entity itself 
could be sued.

A similar conclusion with regard to
good faith immunity was reached in Owen v.
City of Independence, 445 U.S. 622 (1980).
The plaintiff in that case had sued the
city of Independence and certain city
officials "in their official capacities."
445 U.S. 630. In upholding an award of
backpay this Court emphasized:

The governmental immunity at issue 
in the present case differs sig­
nificantly from the official 
immunities involved in our previous 
decisions. In those cases, various 
government officers had been sued 
in their individual capacities .... 
Here, in contrast, only the lia­
bility of the municipality itself 
j. a _t_ jl s; j> ju e x _ n o t_hji t._ of_ i_t _s
officers .... 445 U.S. 638 n. 18
(Emphasis added).



18

Thus both for purposes of jurisdiction 
under Monell, and in assessing a claim of 
immunity under O w e n , this Court has 
adhered to the intent of the drafters of 
Rule 25(d) and treated an action against an 
official "in his official capacity" 
as an action against the entity for which 
he works.

The instant case was litigated, tried,
and adjudicated as an action against the
Memphis Director of Police "in his official
capacity." The District Judge emphasized
at three separate points in his Findings of
Fact and Conclusions of Law that the
Director was sued "in his official ca­

ll/pacity." The Magistrate to whom the
judge referred the calculation of damages 
noted that the court had found Director

11/ 1a, 16a, 25a.



19

Chapman liable "in his official capa­
city. The district judge clearly
contemplated that the damages which he had 
awarded would be paid by the city of Mem­
phis, not by Director Chapman personally. 
Quoting this Court's opinion in Monell, 
Judge Horton declared that an "official 
capacity suit[] ... represent^] only 
another way of pleading an action against
an entity of which an officer is an 

13/agent."
The Sixth Circuit, disregarding both 

the controlling decisions of this Court and 
the manifest intent of the district 
court's order, held that the litigation 
against Director Chapman "in his official 
capacity ... is a suit against the indi-

12/ Joint Appendix, Nos. 83-5321 and 83- 
5346, p. 70.
13/ 16a.



20

vidual, not the city. The court of
appeals applied to such an "official
capacity" lawsuit the executive immunity
standards of Scheuer v. Rhodes, 416 U.S.

15/232 ( 1974),—  and its progeny, despite
the fact that footnote 18 in Owen clearly 
indicated that Scheuer was inapplicable to 
such "official capacity" actions. In deny­
ing rehearing, the appellate panel reit­
erated that an award of damages "against a 
police official in his official capacity" 
was not "a judgment against the city 
itself," but against the official person­

. .1 4 /

ally. 16/

The patent inconsistency of this 
conclusion with Rule 25(d) of the Federal 
Rules of Civil Procedure, and with the

14/ 31a, 38a.
15/ 45a.
16 /  45a.



21

similar provisions of Rule 43(c) of the 
Federal Appellate Procedure, is highlighted 
by the particular circumstances of this 
appeal. The notice of appeal was filed on 
May 20, 1982. On December 29, 1982, 
Chapman was replaced as Director of the 
Memphis City Police by John D. Holt. Thus 
in December 1982, by operation of Rule 
43(c), Holt was automatically substituted 
for Chapman as the appellant. When the 
Sixth Circuit subsequently held, in October 
1983, that this action, and the district 
court judgment appealed from, were against 
Chapman as an "individual". Chapman was no 
longer even a party to the litigation, and 
had not been for over 9 months.

The Sixth Circuit decision in this 
case is squarely in conflict with the 
decisions of four other circuits regarding 
Rule 25(d) "official capacity" lawsuits. 
The Fourth Circuit has held that in an



22

action against school board officials in 
their official capacities any award would 
be paid "from the school board's trea-

,,17/sury. That circuit treats "official
capacity" suits just as it does actions in
which the government entity is the named
defendant, applying the immunity rule

. 18/applicable to local government units—  and
requiring proof of the same "policy or 

,,19/custom mandated by Monel1 m  actions
against municipalities. The Fifth Circuit 
has held in 5 separate decisions that 
"actions for damages against a party 
in his official capacity are, in essence, 
actions against the governmental entity of

17/ Paxman v. Campbell, 612 F.2d 848, 856 
(4th Cir. 1980).
18/ Id. at 856-60.
19/ Hughes v. Blankenship, 672 F.2d 403, 
406 (4th Cir. 1982).



23

which the officer is an agent."—  For
that reason the Fifth Circuit applies to
"official capacity" actions the Owen rule
that cities enjoy no good faith immunity
and the Monell "policy or custom" require- 

21/merit applicable to actions against a 
municipality. The Fifth Circuit has also 
expressly held that the due process rights 
of a county are not violated by compelling 
it to pay the judgment in an "official 
capacity" action in which it was never

20/ Campbell v. Bowlin, 724 F.2d 484, 489 
n. 4 (5th Cir. 1984); see also Universal 
Amusement Co. v. Hofneinz, 646 F.2d 996, 
997 (5th Cir. 1981); Van Ooteghem v. Gray, 
628 F .2d 488, 496 (5th Cir. 1980); Family 
Unidas v. Briscoe, 619 F. 2d 391, 403 (5th 
Cir. 1980); Gay Student Services v. Texas 
A & M University, 612 F.2d 160, 164 (5th 
Cir. 1980) .
21/ Universal Amusement Co. v. Hofheinz, 
646 F.2d at 997; Family Unidas v. Briscoe, 
619 F.2d at 403; Campbell v. Bow’lin, 724 
P.2d at 489.



24

formally named as a party.—  The Seventh 
Seventh Circuit recognizes that "an 
official capacity suit ... is merely 
another form of claim against the govern-

.,23/ment entity."—  For that reason
the real defendant in an official- 
capacity suit is not the named 
public officer but rather the 
governmental entity. The govern­
ment, and not the public officer, is 
solely responsible for satisfying a 
judgment rendered against an offi­
cer sued in his official capacity. 24/

Thus the Seventh Circuit too applies the 
25/ 26/Owen and Monell rules to an "offi-

22/ Van Ooteghem v. Gray, 628 F.2d at 
495-96.
23/ Kincaid v. Rusk, 670 F.2d at 745.
24/ Kincaid v. Rusk, 670 F.2d 737, 742 n. 
7 (7th Cir. 1982); see also Nekolny v . 
Painter, 653 F.2d 1164, 1170 ( 7th Cir.
1981) (under Monell "recovery from the 
public treasury is possible in cases of 
government officials being sued in their 
official capacity.")
2 5/ Kincaid v. Rusk, 670 F.2d at 745.
26/ Wolf-Lillie v. Sonquist, 699 F.2d at 
870.



25

cial capacity" action. The Tenth Circuit 
recognizes that, in light of footnote 55 in 
Monell,

a judgment against the board members 
runs against the School District 
treasury, it is equivalent to a 
judgment against the District 
itself.27/

As a consequence, the Tenth Circuit as well
28/applies Owen to such actions.

In the instant case the Sixth Circuit, 
relying on its characterization of "offi­
cial capacity" suits as personal actions 
against the named defendants, held that the 
defendant in such a suit may invoke the 
"good faith" defense provided by Scheuer v .

27/ Bertot v. School Dist. No. 1, Albany 
County, 613 F.2d 245, 247 n. 1 (10th Cir. 
1979); see also Key v. Rutherford, 645 F.2a 
880, 883 n. 5 (10th Cir. 1981) ("judgments 
against local government officials in their 
official capacities are equivalent to a 
judgment against the government entity 
itself.")
28/ Key v. Rutherford, 645 F.2d at 883; 
McGhee v. Draper, 639 F.2d 639, 644 (10th 
Cir. 1981).



26

Rhodes, 416 U.S. 232 (1974). The Sixth 
Circuit thus dismissed all claims against 
Chapman "in his official capacity," insist­
ing that there was insufficient evidence
"that he acted with anything other than 

2 9 /good faith." Three other circuits,
however, have expressly refused to apply 
the Scheuer v. Rhodes good faith defense to 
"official capacity" actions. In the Fifth 
Circuit "Government officials sued in their
official capacity may not ... assert good

30/faith .immunity."—  The Seventh Circuit 
has also rejected any good faith defense in 
such actions:

29/ 37a.
30/ Universal Amusement Co. v. Hofheinz, 
646 F.2d at 997; see also Families Uniaas 
v. Briscoe, 619 F.2d at 403 ("qualified, 
good faith immunity insulates defendants 
only from liability in their individual 
capacities.... It has no effect on their 
liability in their official capacities....)



27

Because an official-capacity suit 
... merely represents another form 
of claim against the government 
entity itself ... the Owen holding 
denying the good faith immunity 
defense has been extended to 
official capacity suits.31/

Similarly, the Tenth Circuit construes Owen
as holding "local government officials in
their official capacities liable for
compensatory damages regardless of good 

32/faith."
The decision of the Sixth Circuit in 

this case thus presents a conflict on 
issues of recurring importance with 
the decisions of the Fourth, Fifth, Seventh 
and Tenth Circuits, and with the decisions 
of this Court in Mone11 and Ow e n . The 
Sixth Circuit court of appeals has effec­
tively abolished "official capacity"

31/ Kincaid v. Rusk, 670 F . 2d at

32/ McGhee v. Draper, 639 F. 2d at 644
also Kev v. Rutherford, 645 F. 2d at

745.
see

883.



28

actions in the federal courts in Michigan, 
Ohio, Tennessee and Kentucky; henceforth 
such actions are to be treated in that 
circuit as if the defendants were sued in 
their individual capacities. The decision 
in this case also abrogates for all practi­
cal purposes Rule 25(d) of the Federal 
Rules of Civil Procedure and Rule 43(c) of 
the Federal Rules of Appellate Procedure. 
Equally seriously, the decision below calls 
into question the manner in which countless 
"official capacity" actions now pending 
across the country have been pleaded and 
tried; it stands as an open invitation 
to intransigent litigants to recreate the 
"legal snarl" which this Court thought it 
had untangled by amending Rule 25(d) two 
decades ago. Certiorari should be granted 
to resolve the conflict noted above, and to 
pretermit the confusion and mischief which 
the Sixth Circuit opinion portends.



29

CONCLUSION
For the above reasons a writ of 

certiorari should issue to review the 
judgment and opinion of the Sixth Circuit.

Respectfully submitted,

ELIZABETH A. McKANNA
686 W. Clover Drive Memphis, Tennessee 38119

G. PHILIP ARNOLD
300 E. Main Street 
P.O. Box 760 
Ashland, Oregon 97520

WILLIAM E. CALDWELL
731 Center Drive 
Memphis, Tennessee 38112

JACK GREENBERG
ERIC SCHNAPPER*

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Petitioners
*Counsel of Record



APPENDIX



Elizabeth A. BRANDON and James S. Muse, 
Plaintiffs, 

v.
Robert J. ALLEN and E. Winslow Chapman, 

Defendants.
No. C-78-2076.

United States District Court,
W. D. Tennessee, W. D.

July 8, 1981.

G. Phillip Arnold, Memphis, Tenn., 
for plaintiff.

Henry Klein, Memphis, Tenn. for 
defendant.

FINDINGS OF FACT, AND CONCLUSIONS OF LAW, 
AND ORDER

HORTON, District Judge.
This is a civil action against the 

Honorable E. Winslow Chapman, in his 
official capacity as Director of the 
Memphis Police Department and former 
Memphis Police Officer Robert J. Allen. 
Plaintiffs, Elizabeth A. Brandon and James 
S. Muse, seek actual and punitive damages



2a

from the defendants for an assault and 
battery committed upon them by ex-officer 
Allen and for declaratory relief all 
pursuant to 42 U.S.C. §§ 1983, 1988, and
the Fourteenth Amendment of the Constitution 
of the United States. Due to his failure 
to appear or answer the charges in the 
complaint, a default judgment was entered 
against the defendant Robert J. Allen. 
The case was heard by the Court on Septem­
ber 29 and 30, 1980.

Plaintffs allege the following:
1) An off-duty police officer acts 

under color of state law;
2) As Director of Police and as an 

agent of the City of Memphis, Mr. 
Chapman should have known of Mr. 
Allen's dangerous propensities;

3) Mr. Chapman should have taken 
steps to dismiss Mr. Allen from 
the Police Force prior to the



3a

occurrence of the incident involv­
ing plaintiffs.

4) Policies existed which precluded 
the Police Department from taking 
action to discover dangerous pro­
pensities among certain officers, 
and those policies encouraged 
"cover-up" of police misconduct;

5) Mr. Chapman's inaction was the 
cause of plaintiffs' pain, serious 
physical ana emotional injuries, 
and property damange, and defend­
ant's inaction denied plaintiffs 
equal protection of the law;

6) Mr. Chapman's willful, wanton and 
reckless conduct constitutes a 
basis for an award of punitive 
damages.

Defendant E. Winslow Chapman, as 
an agent of the Memphis Police Department, 
presented the following defense:



4a

1) He had no actual knowledge of 
the dangerous propensities of 
Officer Robert J. Allen;

3) Upon his arrival as Police 
Director, he instituted a new 
policy, which provided for his 
personal involvement in cases of 
police misconduct;

4) Silence among police officres, 
review by the Civil Service 
Commission, and provisions of a 
union contract limited the Police 
Director's ability to discipline 
officers;

5) Officer Allen's disciplinary 
record at the time of the incident 
involving plaintiffs did not 
warrant dismissal from the Police 
Force;

6) Under the circumstances of this 
case, it cannot be said that Mr.



5a

Chapman should have known of Mr. 
Allen's dangerous propensities.

The Court, pursuant to Rule 52, 
Fedreal Ruels of Civil Procedure, makes 
the following findings of fact and conclu­
sions of law:

FINDINGS OF FACT
1) On March 5, 1977, at approximately

11:30 p.m. plaintiffs, who were seventeen 
years of age, drove to the Memphis Hunt and 
Polo Club while on a date and parked in a 
dark and secluded driveway area. The 
driver of the vehicle was plaintiff James 
S. Muse. After approximately thirty 
minutes had elapsed, a Chevrolet pickup 
truck entered the driveway where plaintiffs 
were parked. The truck proceeded down the 
driveway and returned a few minutes later, 
stopping near Mr. Muse's car. The driver 
of the truck identifed himself to plain­
tiffs as a police officer and showed them



6a

an official police identification card 
bearing the name and photograph of Robert 
J. Allen. Mr. Allen was in fact employed as 
an officer with the Memphis Police Depart­
ment,but he was off duty at that time. 
Mr. Allen ordered Mr. Muse to step out of 
the car. After briefly questioning him, 
Officer Allen maliciously, and without 
provocation, struck Mr. Muse in the neck 
and head with his fist and then stabbed and 
cut Muse on the neck and ear with a knife. 
As Officer Allen tried to break into the 
car where plaintiff Elizabeth A. Brandon 
was seated, Mr. Muse jumped into the 
driveer's side of the car and quickly drove 
away. Officer Allen fired a shot at the 
escaping vehicle with his police revolver. 
The bullet shattered the front window on 
the driver's side of the car. Officer Allen 
followed plaintiffs in a high speed chase 
which ended at St. Joseph's Hospital East,



7a

where plaintiffs sought medical care and 
assistance and reported the unprovoked 
attack upon them by Officer Allen.

2) Miss Brandon was treated in the 
emergency room for facial cuts caused 
by the shattered glass. Later, a bullet 
fragment was removed from her face. Mr. 
Muse underwent three hours of plastic 
surgery and was hospitalized for two days. 
He was required to return to his physician 
periodically for additional treatment. Mr. 
Muse still has scars on his face.

3) Both plaintiffs have suffered 
great physical pain and anguish as a result 
of the incident. Miss Brandon testified 
that she has experienced nightmares, 
headaches, irritability, impatience, 
withdrawal, fear, and emotional distress. 
Mr. Muse testified that he has had diffi­
culty sleeping since the incident. He has 
suffered fear and emotional distress.



8a

He sustained damage to his car. Both 
plaintiffs testified they have lost respect 
for the police. Their senior year in 
high school was disrupted by the incident. 
There is evidence that plaintiffs are 
likely to bear some emotional scars from 
this experience for the remainder of 
their lives.

4) Although Officer Allen was technic­
ally off duty at the time of the incident, 
an off duty Memphis policeman is authorized 
to be armed. He is required to act if he 
observes the commission of a crime. The 
Court therefore finds that Officer Allen's 
use of his Memphis Police identification 
card and police service revolver were 
acts done under color of state law.

5) Officer Allen's reputation for 
displaying maladaptive behavior was well 
known among Police officers in his 
precinct. When informed of the incident



9a

involving plaintiffs, the following 
statements were made by Officer Allen's 
colleagues:
They finally caught up with him; he's 
a quack; Allen has done something this 
time that he can't get out of.

Allen's reputation as a "mental case"
was widespread among the officers. Because
none of the officers wished to ride in the
same squad car with Officer Allen,he was
frequently relegated to ride by himself.
He was known to have bragged about killing
a man in the course of duty. Officer Allen
has often stated to other officere that he
wished he knew the exact bullet spread in
the chest of the man he killed. Oficer
Allen referred to a pair of gloves in his
possession as "killing gloves," and he
would ceremoniously put those gloves on his
hands when he wsa called to the scene of a
crime.



10a

6) At least on one prior occasion, 
an officer reported Officer Allen's 
morbid conduct to a supervisor. Offi­
cer Joe Davis made that report to Captain 
D. A. Moore and requested that he be 
assigned to ride with someone other than 
Officer Allen. As long as Captain Moore was 
at Mr. Davis' precinct, this request was 
honored for the most part.

7) At least two formal complaints 
were filed with the Memphis Police Depart­
ment by citizens against Officer Allen 
prior to the incident involving plaintiffs. 
Kathleen Myrick had filed a complaint 
alleging "conduct unbecoming of an offi­
cer." Jeanne DeBlock testified that 
Officer Allen had stopped her on the
interstate highway, ordered her into his
squad car and taunted her for about an
hour and a half. During that time h e
ordered her to repeat her story to him



- 1 1 a -

at least four times. When he released
her, she called him a name, and he threw
her back into his squad car, taunted her
for at least another hour, took her to jail 
for the night and impounded her car. Al­
though she had presented a valid driver's 
licencse when asked, Officer Allen charged 
her with driving without a license and 
speeding. Officer Allen was given an oral 
reprimand based upon Ms. Myrick's com­
plaint. No action was taken against him for 
Ms. DeBlock's complaint. Upon his depar­
ture from the Memphis Police Depart­
ment in March of 1977, twenty complaints 
against Officer Allen were part of his 
police file records. Those included 
complaints for serious abuse of police 
authority and use of unnecessary force. 
Officer Allen had received commendations 
while a police officer. He was subse­
quently convicted and imprisoned for his



12a -

role in the incident involving plaintiffs.
8) Defendant Chapman has been Police 

Director since his appointment in Septem­
ber, 1976. Prior to his Administration, 
there was no direct involvement of the 
Police Director with matters of officer 
misconduct. Mr. Chapman devised procedures 
which provided for his personal involvement 
with matters of misconduct. Those proce­
dures were not implemented until early in 
the year of 1977. The old procedure was 
followed until Director Chapman's new 
procedures were adopted and implemented. 
The new procedures operated prospectively. 
Thus, Mr. Chapman was not apprised of 
Officer Allen's disciplinary record, since 
he had failed to review the existing 
recoras of police officers relating to 
misconduct.

9) Even under the new procedures im- 
pelmented by Mr. Chapman, Officer Allen



13a

would not have been dismissed from the 
Memphis Police Department based upon 
his police disciplinary record at the 
time of the incident involving plaintiffs. 
The new procedures failed to encourage 
or impose any duty on officers to file 
formal complaints on their own initia­
tive against other officers when war­
ranted. Mr. Chapman's plan also failed 
to impose a duty on supervisors to take 
action to seek out and discover officers 
who might have dangerous propensities. 
Even under the new procedures, immediate 
supervisors of the officers were insulated 
from knowledge of officer misconduct. In 
the absence of the filing of formal com­
plaints by either citizens or officers, Mr. 
Chapman was almost always uniformed of 
police officer misconduct. No direct 
action was taken by the Police Director to
seek out incidents of officer misconduct



14a

from immediate supervisors.
10) Mr. Chapman had no personal knowledge 

of Officer Allen's dangerous propensities 
nor did many of the other supervisors 
within the hierarchy of the police depart­
ment.
11) Serious limitations hindered the 

police department and it Director from 
disciplining errant officers. Those factors 
included a code of silence among the 
officers, restrictive provisions within the 
union contract, and review of police 
disciplinary actions by a Civil Service 
Review Board. In a previous case, Mr. 
Chapman testified that he fired an officer 
charged with pistol-whipping a citizen and 
dismissed another officer charged with 
breaking the limbs of a prisoner. In both 
cases the Civil Service Review Board 
reinstated the officers. Because of those 
constraints, Mr. Chapman believed that it



15a

was Detter to take no disciplinary action 
against an officer than to take action and 
be reversed by the Civil Service Review 
Board.

12) Standard form letters were routinely 
sent to citizens in response to their 
formal complaints. Those letters were 
signed by Mr. Chapman and assured complain­
ants that the matter in question had been

properly acted upon by the Police Depart­
ment. Such letters were sent to Ms. 
Myrick and Ms. DeBlock in response to prior 
complaints made against Officer Allen.

CONCLUSIONS OF LAW
Plaintiffs have filed an action for 

damages for assault and battery and decla­
ratory relief arising under 42 U.S.C. §‘§ 
1983, 1988,and the Fourteenth Amendment to 
the Constitution of the United States. 
Plaintiffs seek to redress the deprivation



1 6a

of rights, under color of Tennessee law, 
secured to them by said statutory and 
constitutional provisions. The jurisdic­
tion of the Court is invoked pursuant to 28 
U.S.C. §§ 1331, 1343, 2201, and 2202.

Defendants in this case are Robert 
J. Allen, a former police officer who was 
off duty at the time of the incident in 
question, and the Honorable E Winslow 
Chapman, Director of the Memphis Police 
Department. Because Mr. Allen failed to 
answer the complaint, a default judgment 
was entered against him.

Mr. Chapman was sued in his official 
capacity as an agent of the Memphis Police 
Deparment. According to Monell v. Depart­
ment of Social Services of the City of New 
York, 436 U.S. 658, 690 n.55, 98 S.Ct.
2018, 2036, 56 L.Ed.2d 611, 635 (1978):
"official-capacity suits generally repre­
sent only another way of pleading an action



17a

against an entity of which an officer is 
an agent.... [0]ur holding ... decides 
that local government officials sued in 
their officical capacaties are 'persons' 
under § 1983 .... "

Title 42, section 1983, United States
Code provides in part as follows:

§ 1983. Civil action for deprivation 
of rights.
Every person who, under color of 

any statute, ordinace, regulation, 
custom, or usage of any State ... 
subjects or causes to be subjected, any 
citizen of the United States ... to the 
deprivation of any rights, privileges, 
or immunities secured by the Constitu­
tion and laws, shall be liable to the 
party injured in an action at law, suit 
in equity, or other proper proceeding 
for redress.

In Taylor v. Grindstaff, 467 F.Supp. 4, 5
(E.D. Tenn. 1978), the Court stated the 
following:

Two elements are requisite for recov­
ery under the Federal Civil Rights 
Act, i.e ., conduct under color of 
state law by the person(s) whose 
conduct is complained of, and the



18a

subjection of the p l aintiff by 
such conduct to the deprivation of 
rights, privileges and immunities 
secured to him by the federal Consti­
tution and laws. Basista v. Weir, 340 
F.2d 74, 79 (3rd Cir. 1965).

For one to be liable under this provi­
sion, he must act under "color of law," and 
in doing so he msut play an "affirmative 
part" in the deprivation of the constitu­
tional rights of another. See Rizzso v . 
Goode , 423 U.S. 362, 96 S.Ct. 598, 46
L.Ed.2d 561 (1976). According to Henig v .

9. JL £. r 385 F.2d 491, 494 (3rd Cir.
1967):

[M]isuse of power, possesssed by 
virtue of state laws and made possible 
only because the wrongdoer is clothed 
with the authority of state law [is 
action taken under color of law]. See 
U.S. v. Classic, 313 U.S. 299 at 316 
[61 S.Ct. 1031, 1043, 85 L.Ed. 1368] 
(1940).

Furthermore, the United States Supreme 
Court in Monroe v. Pape, 365 U.S. 167, 81
S.Ct. 473, 476, 5 L.Ed.2d 492
stated the following:

( 1961 ) ,



19a

There can be no doubt ... that 
Congress has the power to enforce 
provisions of the Fourteenth Amendment 
against those who carry a badge of 
authority of a State and represent 
it in some capacity, whether they 
act in accordance with their authority 
or misuse it.
Mr. Chapman could not be held liable 

under any theory for the actions of the off 
duty officer Allen, as long as Officer 
Allen had failed to act under "color of 
law." However, when Officer Allen dis­
played his official police identification 
and used his police revolver, he acted 
under "color of law."

It has been held that a Police Chief 
played an "affirmative part" in the depri­
vation of constitutional rights "if [he] 
deployed or hired an officer under condi­
tions which he should have known would 
create a threat to the constitutional 
rights of the citizenry ...." Kostka v.
Hogg , 560 F.2d 37, 40 (1st Cir. 1977 ).



20a

However, such a federal offical is under 
no duty to anticipate unforseeable con­
stitutional developments. Mitchell v. 
King, 537 F.2d 385, 389 (10th Cir. 1976).
Moreover, in the case of Rizzo v. Goode, 
_su£ jra, a class action suit where only 
equitable relief was sought, the Supreme 
Court held that the Federal District Court 
exceeded its authority when it required 
defendant to adopt a revised program to 
govern the manner by which complaints 
against officers would be handled.

Both parties to this case have 
agreed that Mr. Chapman had no actual 
knowledge of Officer Allen's dangerous 
propensities. Thus, the sole issue is 
whether Director Chapman should have known 
that Officer Allen's dangerous propensi­
ties created a threat to the rights and 
safety of other citizens. Because Mr. 
Chapman, as Poice Director, should have



- 21a

known of Officer Allen's dangerous propen­
sities the Court finds that he must be 
held liable, in his official capacity, to 
the plaintiffs.

Police officers are vested by law 
with great responsibility. As a result, 
they must be held to high standards of 
official conduct. In the absence of high 
standards of official conduct, the likeli­
hood of abuse of police authority and 
deprivation of citizens' civil rights is 
very great. Officials of the Police 
Department must become informea of the 
presence in the Department of officers who 
pose a threat of danger to the safety of 
the community. Likewise, when knowledge 
of a particular officer's dangerous propen­
sities is widespread among the ranks of 
police officers, the Police Department's 
officials must understand that a threat to 
the safety of the community exists.



22a

In this case, Mr . Chapman failed to
proper action to become informed of

Officer Allen's dangerous propensities. 
For example, upon his appointment as 
Police Director, Mr. Chapman failed to 
review the disciplinary records of offi­
cers prior to the incident involving the 
plaintiffs. Even if he had done so, it 
is doubtful that Mr. Chapman would have 
been apprised of Officer Allen's dangerous 
propensities under departmental procedures 
then instituted by Mr. Chapman. This is 
because only if a formal complaint were 
filed by either a policeman or a citizen 
would the Police Director ever be informed 
of an officer's dangerous propensities or 
of police misconduct.

Due to a code of silence induced by 
peer pressure among the rank-and-file 
officers and among some police supervisors, 
few -- if any -- formal complaints were



23a

ever filed by police personnel. Further­
more, when complaints were filed by 
citizens, little disciplinary action was 
apparently taken agaisnt the offending 
officer. Instead, a standard form letter, 
bearing Mr. Chapman's signature, was 
mailed to each complainant, assuring the 
person that appropriate action had been 
taken by the Police Department, even if 
such action had not in fact been taken. 
This tended to discourage follow-up 
measures by the complaining citizen. 
Perhaps, Mr. Chapman's belief that it was 
better to take no disciplinary action than 
to act and later be reversed by a review 
board was responsible for this obviously 
inadequate solution. The end result 
was twofold: 1) Mr. Chapman's procedures
were highly conducive to "covering up" 
officer misconduct; 2) the Police Director 
and many of his supervisors were totally



24a

insulated from knowledge of wrongdoing 
by officers as a result of policies in 
effect during that period of Mr. Chapman's 
relatively new administration. In other 
words, due to the inherently deficient 
nature of police administrative procedures 
involving the discovery of officer miscon­
duct, Mr. Chapman seldom knew of misconduct 
matters which he should have known, such 
as Officer Allen's dangerous propensities.

Officer Allen's reputation for mala­
daptive behavior was widespread at the 
officers of the precinct. Furthermore, 
the least one of the officers personally 
informed one of the chief precinct super­
visors of Mr. Allen's morbid tendencies. 
Nevertheless, investigation and action by 
this supervisor* were not undertaken as a 
result of those procedures then in effect 
during this period of Mr. Chapman's direc­
torship. Under these circumstances, it



25a

would require feats of mental gymnastics to 
believe that Mr. Allen's immediate super­
visors were not aware of the dangerous 
situation created by Officer Allen's 
presence on the Memphis police force. 
Still, there was apparently no communica­
tion between Mr. Chapman and those supervi­
sors regarding Officer Allen's dangerous 
propensities.

Mr. Chapman has, in effect, asked 
the Court to find as acceptable unjustified 
inaction. This the Court cannot do. The 
evidence does not permit the Court to do 
so. The plaintiffs in this case were 
seriously frightened and injured by 
Officer Allen. The attack upon them was 
wilful, wanton, unprovoked and brutal. 
Because he should have known of Officer 
Allen's dangerous propensities considering 
the totality of all of the circumstances 
of this case and because he should have



26a

taken steps to dismiss Officer Allen from 
the police force, Director Chapman's 
unjustified inaction was the cause of 
plaintiffs' damage and injuries. Accord­
ingly, Mr. Chapman in his capacity as 
Director of the Memphis Police Department 
must oe held liable to plaintiffs in this 
case.

The disposition of this case, upon 
all of the evidence presented at the 
hearing, does not blind the Court to the 
fine record of Mr. Chapman. Neither is the 
Court unaware that the Memphis Police 
Department is staffed by very fine men 
and women. This Court can note with 
satisfaction the progress made by that 
Department under the progressive Director­
ship of hr .Chapman. In this case, the 
Court is dealing with evidence pertaining 
to only one obviously dangerous police 
officer, former Officer Allen. The over­



27a

whelming evidence, and not just a prepond­
erance of the evidence, shows that it 
was a real and present danger to the City 
of Memphis and its citizens for Officer 
Allen to have been on the Memphis Police 
Department at the time this terrible 
incident occurred. His dangerous propensi­
ties were widely known among officers of 
the Department. Officer Allen inflicted 
severe and painful injuries upon two 
innocent young people. Considering all 
the facts, Mr. Chapman, though relatively 
new in his job at the time, should have 
known of Allen's dangerous propensities.

It is therefore by the Court
ORDERED that the defendants be held 

liable in damages to the plaintiffs. The 
Court will, after a period of 30 days from 
the date of this order, refer the case to 
a United Staes Magistrate for a prompt 
hearing on the issue of damages and for a



28a

recommendation to the Court on the amount 
of damages that should be awarded plain­
tiffs. If this matter of damages can be
resovled by the parties to this action 
within 30 days then no hearing by a
Magistrate will be necessary. The parties 
can simply present an appropriate order to 
the Court.



29a

Nos. 82-5321 
82-5346

UNTIED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

ELIZABETH A. BRANDON AND 
JAMES D. MUSE,

Plaintiffs-Appellees, 
Cross-Appellants.

v.
ROBERT J. ALLEN,

Defendant-Cross- 
Appellee ,

E. WINSLOW CHAPMAN,
Defendant-Appellant, 

Cross-Appellee.

Decided and Filed October 11, 1983

Before: LIVELY, Chief Circuit
Judge; MERRITT, Circuit Judge; PECK,

On Appeal from 
the United 
States District 
Court for the 
Western District 
of Tennessee.

Senior Circuit Judge



30a

MERRIT, Circuit Judge. Plaintiffs, 
Elizabeth A. Brandon and James S. Muse, 
commenced this action in the District 
Court for he Western District of Tennessee 
to recover damages and declaratory relief 
under 42 U.S.C. §1983 and the Fourteenth 
Amendment. Their complaint arises from an 
assault and battery committed against them 
by ex-police officer defendant Robert 
J. Allen. Plaintiffs also sue E. Winslow 
Chapman, Director of the Memphis Police 
Department, in his official capacity for 
his failure to prevent the assault. The 
case presents questions concerning the 
standard of liability of supervisory 
police officials and the measure of damages 
against police officres who deliberately 
and without provocation assault citizens
under color of law.



31a

I. Facts
The plaintiffs, who were high school 

seniors at the time, were parked in a 
secluded spot at 11:30 p.m. on March 5, 
1977. Officer Allen was then employed by 
the Memphis Police Department but was off 
duty. The officer approached the parked 
car, showed his police identification 
card, and ordered the young man to get out 
of the car. When Muse obeyed the order, 
Officer Allen maliciously and without 
provocation struck Mr. Muse in the head 
and neck and then stabbed him with a 
knife. Muse managed to get back into the 
car and drive off despite Officer Allen's 
efforts to get into the car. As Muse 
pulled away, Officer Allen fired his gun 
at the car shattering the windshield and 
causing facial injuries to Ms. Brandon. 
The young couple went immediately to the 
hospital with Officer Allen in pursuit.



32a

Allen was susequently tried in criminal 
court and convicted of assault with intent 
to murder.

The plaintiffs received a default 
judgment in the District Court against 
defendant Allen. The District Court also 
found Director Chapman liable in his 
official capacity for the injuries suffered 
by the plaintiffs. The cause was referred 
to the United States Magistrate for a 
recommendation on the amount of damages to 
be awarded. The Magistrate recommended and 
the District Court agreed that Mr. Muse 
should receive $21,210.75 in compensatory 
damages and out-of-pocket expenses, that 
Ms. Brandon was entitled to $5,000 in 
compensatory damages, and that each should 
get $25,000 in punitive damages. The 
compensatory and out-of-pockty damage 
awards were made against defendants 
Chapman and Allen jointly and severally



33a

while the punitive damages were assessed 
only against Allen.

The plaintiffs challenge the award 
of damages because the compensatory 
damages were not measured to take into 
account the deprivation of their constitu­
tional rights by the police officer. 
Defendant Chapman, cross-appealing, 
challenges the findings of liability 
against him primarily by attacking the 
standard utilized by the District Court. 
Defendant Allen has neither appealed nor 
participated in this appeal.

We hold that the District Court 
erred by finding Director Chapman liable 
for the attack perpetrated by Officer 
Allen. Therefore, we need not reach the 
damage question as it pertains to Director 
Chapman. Compensatory damages were 
awarded against both defendants jointly 
and severally, however, so the plaintiffs'



34a

challenge to the compensatory award must 
be addressed with regard to the absent 
defendant, Robert J. Allen. Because we 
believe that the Magistrate and the 
District Court erred in refusing to allow 
the full measure of compensatory damages 
under applicable law, we reverse and 
remand that portion of the District 
Court's judgment which establishes plain­
tiffs' damages.

II. Liability of Police Director Chapman 
In Parratt v. Taylor, 451 U.S. 527 

(1981) the Supreme Court recently clarified 
the standard of liability under § 1983
against supervisory officials in the law 
enforcement and corrections field. The 
Court listed the following two essential 
elements which must be present as a thres­
hold consideration to support a § 1983
action: (1) the perpetrator must have
acted under color of state law and (2) the



35a

conduct must have deprived the complainant 
of rights, privileges, or immunities 
secured by the Constitution or laws of the 
United Staes. 451 U.S. at 535. The Court 
specifically declined to adopt a standard 
requiring more than simple negligence. It 
concluded that "nothing in . . .  § 1983 .
. . limits the statute solely to inten­
tional deprivations" or denies liability 
to a "wrong . . . negligently as opposed
to intentionally committed." Êd . at 
534.

Although the Parratt Court set a com­
paratively low threshold standard for 
showing a § 1983 deprivation in cases 
against supervisory officials, the Court 
did not disturb its holdings in previous 
cases which extend to governmental offi­
cials a qualified immunity defense based 
on good faith. The Court referred with 
approval to its decision in Procunier v.



36a

Navarette, 434 U.S. 555 (1978), which held 
that state prison officals were entitled 
to qualified immunity in suits under § 
1983. In other words, governmental 
officials are immune from liability under 
§ 1983 unless they "knew or reasonably
should have known" that their actions 
would cause a constitutional or statutory 
deprivation. _Id. at 562.

The parties in this case expend 
considerable energy either relying on or 
distinguishing our opinion in Hays v. 
Jefferson County, 668 F.2d 869 (6th Cir.
1982), which was decided without the 
benefit of Parratt, supra. In Hays, the 
plaintiffs sued various high level police 
officials under § 1983 to redress injuries 
suffered at the hands of street level 
officers during an anti-busing demonstra­
tion. We held that simple negligence was 
insufficient to support a § 1983 claim.



37a

The governmental authority must be shown 
some other way directly participated in 
the misconduct. Hays, supra , at 874 .

Defendant Chapman argues in his 
brief that he should not be held liable 
because of this higher standard set out in 
H ja y H • The Supreme Court in P ar r a 11
clearly rejected this higher threshold 
standard. Liability based on negligence 
is sufficient, and the Pa^ratt case 
undermines our decision in Hays. We need 
not decide, however, whether the District 
Court correctly found that Director 
Chapman was guilty of simple negligence by 
failing to prevent the assault on the 
plaintiffs. We need not reach this 
question because Director Chapman is 
protected by the qualified immunity.

1 n o£MilAer , su£ ra , the Supreme
Court reaffirmed that governmental officers 
have immunity if they acted in good faith:



38a

It is the existence of reasonable 
grounds for the belief formed at 
the time and in light of all the 
circumstances, coupled with good- 
faith belief, that affords a basis 
for qualified immunity of executive 
officers for acts performed in the 
course of official conduct.

Id. at 562 (quoting Scheuer v. Rhodes, 416
U.S. 232 (1974)).

Director Chapman acted in good 
faith and is accordingly entitled to 
immunity. The record is clear that he 
knew nothing whatsoever about Officer 
Allen —  including Allen's instability. 
Director Chapman assumed his office six 
months prior to the incident with the 
plaintiffs. He was in the process of 
instituting significant changes to stop 
police brutality in Memphis. He played no 
personal role in the actual incident; he 
executed his supervisory functions in good 
fatih and with diligence in order to 
prevent just this type of citizen abuse.



39a

We can find no indication in the record 
that he acted with anything other than 
good faith during his short tenure in 
office prior to the incident.

The plantiffs' argument that the 
qualified immunity is inapplicable simply 
because they sued Chapmanin his official 
capcity is unavailing. Under Owen v. City 
of Independence, 445 U.S. 622 (1980), a
municipality is not entitled to claim the 
qualified immunity that the city's agents 
can assert. But this is a suit against an 
individual, not the city. In reality, 
plaintiffs are attempting to amend their 
complaint so as to treat the Police 
Director as though he were the City in 
order to avoid the qualified immunity 
which shields Director Chapman. Such an 
argument is without support in precedent
or reason.



40a

III. The Damages Issue
In his Report and Recommendations 

on damages, the Magistrate refused to 
allow plaintiffs' damage award against 
Allen to reflect the fact that the injury 
to their dignity, the insult to their 
person was greater because the assault was 
carried out by a police officer acting 
under color of law. The Magistrate based 
this decision on Carey v. Piphus, 435 U.S. 
247 (1978), which holds that a successful
plaintiff in a procedural due process § 
1983 action is entitled to recover only 
nominal damages in the absence of proof of 
actual injury. The Court observed tht 
although the law recognizes the importance 
to organized society that certain "absolute 
rights" be protected, "substantial damages 
should be awarded only to compensate 
actual injury or, in the case of exemplary 
or punitive damages, to deter or punish



41a

malicious deprivation of rights." Id. at 
266. Citing the Piphus Court's emphasis 
on actual injury and the compensation 
principle, the Magistrate and the District 
Court appear to have concluded that 
damages may only include actual or special 
damages for the physical injury involved 
and may not reflect injury to the dignity 
of the person which arises when a police 
officer under color of law assaults a 
citizen.

We believe that the Magistrate erred 
in refusing to consider fully the nature 
of the wrong in measuring damages. In addi­
tion to providing compensation for plain­
tiffs who incur tangible physical or 
economic injury, the common law for 
centuries has permitted recovery for 
invasions of a wide array of intangible 
"dignitary interests;" in such cases, 
injury is presumed. See D. Dobbs, Law of



42a

Remedies § 7.3, at 528 (1973). The Piphus 
case has not disturbed this principle as 
it pertains to constitutional tort actions 
in general. On the contrary, the Supreme 
Court stressed that common law rules 
"defining th elements of damages and 
prerequisites for their recovery provide 
the appropriate starting point for the 
inquiry under § 1983 as well." Carey v.

• ££.£££ f 435 U.S. at 257-58.
Moreover, the Court explicitly limited 
its decision in P ip h u._s by noting that 
"the elements and prerequisites for 
recovery of damages appropriate to compen­
sate injuries caused by the deprivation of 
one constitutional right are not necessar­
ily appropriate to compensate injuries 
caused by the deprivation of another." 
Id. at 264-65.

Unlike Piphus, the instant assault 
and battery case entails actions by a



43a

Memphis police officer which clearly 
violated plaintiffs' substantive rights to 
enjoy the security of life ana limb. At 
common law, general as distinguished from 
special damages were allowed. See D.Dobbs, 
supra, at 528. In such cases, two other 
circuit courts have held that § 1583
plaintiffs may recover substantial general 
money damages as compensation for the 
wrong. See Corriz v. Naranjo, 667 F.2d 
892, 897-98 (10th Cir. 1981), cert, dis­
missed , 103 S.Ct. 2 (1982); Herrera v .
Valentine, 653 F.2d 1220, 1227-31 (8th
Cir. 1981). We agree with the Tenth and 
Eighth Circuits that there is a qualita­
tive and quantitative difference between 
injury suffered as a result of a wrong for 
which the common law did not allow general 
damages and an injury resulting from an 
intentional battery by a police officer. 
This common law distinction must continue



44a

to play a role in the awarding of compen­
satory damages in § 1983 actions. See D. 
Dobbs, supra, at 531 (1973).

We, therefore, reverse the District 
Court's judgment regarding compensatory 
damages and remand the case so that the 
nature of the wrong may be considered in 
computing plaintiffs' compensatory damage 
award. Because of our holding in Part I 
of this opinion that defendant Chapman is 
immune to this suit, the remand regarding 
damages pertains only to defendant Allen.

Accordingly, the decision of the 
District Court is reversed and the case 
remanded for further proceedings consistent 
with this opinion.



45a

Nos. 82-5321 
82-5346

UNTIED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

ELIZABETH A. BRANDON AND 
JAMES D. MUSE,

Plaintiffs-Appellees, 
Cross-Appellants.

ROBERT J. ALLEN, 
Defendant 

v.
E. WINSLOW CHAPMAN, 
in his official capacity 
as Director of Police 
for the City of Memphis,

Defendant-Appellant, 
Cross-Appellee

ORDER DENYING 
PETITON FOR 
REHEARING 
EN BANC

Before: LIVELY, Chief Judge;
Circuit Judge; PECK, Senior

MERRITT,
Circuit

Judge



46a

In a long and eloouent petition ior 
en banc reconsideration, the plaintiffs 
take the Court to task for granting a 
qualified good faith privilege to the 
Memphis Director of Police sued for 
damages in his official capacity. No judge 
of the Court having requested an en banc 
vote, the petition has been referred to 
the original panel for disposotion. On 
this issue, the panel adheres to its 
original view. We do not believe that a 
judgment for damages against a police 
official in his official capacity is the 
same as a judgment against the city itself 
or that the legal principles respecting 
official privileges and immunities are the 
same. Although some cases may treat the 
person and the governmental entity in a 
similar fashion for some purposes, we find 
no case which holds or suggests that the



47a

two should be treated the same for this 
purpose.

Accordingly, the petition for recon­
sideration is denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Helman _____
Clerk

* this order was prepared by Judge Merritt.



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