Oklahoma City v. Tuttle Brief of the City of Oklahoma City, Petitioner

    No. 83-1919

In The

Supreme Court of the United States
October Term, 1984

T H E  CITY OF OKLAHOMA CITY,
Petitioner,

V.

ROSE M A RIE  T U TTL E,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF OF THE CITY OF OKLAHOMA CITY, 
PETITIONER

B uKCK BArLEY 
Counsel of Record
Margaret M cM orrow-L ove 
F ellers , S x id er , B lan' k e x s h ip , 

B ailey & T ipp e x s  
2400 Firs t  National Center 
Oklahoma City. Oklahoma 73102 
(405) 232-0G2i 
Counsel for Peti t ioner

COCKLE L A W  BRIEF PRINTING CO., (SOO) 835-7427 E.M. 333



■fv''.

QUESTION PRESENTED

Whether a single isolated incident of the use of ex­
cessive foice by a police officer establishes an official pol- 
iev or custom of a municipality sufficient to render the 
municijiality liable in daniages under 42 X .S.C. '^1983.



TA BLE OF ro N 'T E X T S

Pa

QL'ESTIOX P R E S E N T E D  ................................... -

T A B L E  OF a u t h o r i t i e s .................................... -.....

OPINK)N BELOAV ......................................................

JURISD ICTIO N  .....................................................................

STA'I'UTORY PROVISION

S T A T E M E N T  ................

SUMMARY OF A R O l’MEN'l' ...........................................

AROT'MENT ............................................... ..........................

A MuiiicipalitV ^lav Not Bo Hold Lialdo fcir Dani- 
atre.'- Under 4d U.S.C. Absent an E>taIdislio-d
Policy or Custom with Reference to the Use of 
Excessive Force ...... -........................................................

A. Instruction to the J u r y .......................................

B. Decisions of this Court ................................ -.....

C. Decision> of tlie Federal Courts ......................

D. Tin- Decision of the United Stales ConiJ of
Apiieals for the Tenth Circuit -- ■

SUMMARY ...........................................................................

19



No. 83-1919

-r>---------

In The

Supreme Court of the United States
October Term, 1984

----------------o---------------

T H E  CITY OF OKLAHOMA CITY,
Petitioner,

V.

HOSE MAHIE TUTTLE.
Respondent .

---------------0---------------

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF OF THE CITY OF OKLAHOMA CITY, 
PETITIONEE

OPINION BELOW

Till' oi'inion of llic Unitfil Si.nt.>> Conrl of Appeal? 
fur tliu Te;itl' Cii'cT.il i> ri']u.ri.'il at 72 '̂ F.2d l.'iG (Feb. 2S. 
19''4l. The jude'iiient ol the I iiited Suite? District Court 
lot thv W(>Uuni Distiict of ( iklaiioina i  ̂ uot reported.



JURISDICTION

TIm- .iudginent of tlie United Slate? C'onrt of Apiieal? 
for tlie Tentli C:iicuit v a s  entered on February  28, 1984. 
The J'etition for a Writ  of Certiorari to Ibi I  iiited States 
Court of Appeals  f<>i' the d'entli Circ\iit was filed on Maj 
24. 19S4. and said Pelitioii was gi-anted on October 1. 1984. 
The jurisdiction of tlii '  Court i.‘̂ iu\-oked under 28 U.S.C. 
A2b4(l) .

^STATUTORY PROVISION

The i>ertinent luovisions of 42 C.S.C. fPOd are as 
follows:

Fvery  jK'rson who. under color ol any statute, otdi- 
nance. regulation, custom, or usage . . . subjects, oi 
causes to be subjected, any citizen of the T nited States 
or other ]>ersou within the jurisdiction thereot tô  the 
dc])rivation of any rights. ]irivilege? or immunities 
secured bv the Constitution and laws, slmll be liable to 
the par ty  injured in any action at law. suit in e(|uity 
or aû ■ ]iroceoding for redress.

STATEMENT

(bn Mav 22. ]t '8L Rose M a n e  Tut t le  filed a comidaiut  
in the i ' li ited State.- ftistrict  ( bm n  fer t i n  W este rn  Dis ­
trict of (b;Iai;oma nainiiiu a '  d " f ' - n d a n t i l u '  (.ity ol Ok la ­
homa (bity ;nid .liili::n Fotrain'd.  a jiolin- otTieer ot the 
(tklaboii'.a C itN' Folic. '  Fe t iar tmeut .  She tiled suit i i idnid-  
ually and a- admim.- t ra t r ix  .d' tli>' esta1>' of decedent.  W i l ­
liam A. Tut t le .  The eoniplaint -ought recm'cry under  42 
U.S.(.'. r  PiSo. 19 .̂'). FSt l  and 19>8.



rt of Ap]>eals 
nary 28. 1984. 
United Slates 
filed on May 

etolirr 1. 1984. 
der 28 U.S.C,

198.4 are as

statnte.  ordi- 
. snb.jeets. or 
United States 
thereof to the 
rr immunities 
all be liable to 
suit in e(|uity

d a eomplaint 
Western Dis- 
City of ( »l;la- 
d'fiei'i- of the 
1 snii indi\‘id- 
leeed' nt. Wil- 
.’erv under 42

Plaintiff charged that Oklahoma City inadequately 
trained its ])olice offieers. She allegTd that the training 
provided by Oklahoma City to its offieers was so poor that 
it amounted to a willful, wanton and malicious act con­
sti tut ing uross neglisence. The City denied the allegations 
of the complaint and siwcifically asserted that the death of 
Williain Tuttle did not result from any ofTicial policy or 
custom of the City ot ()klahoma City.

OtTieer .lulian Potramel had atlemh'd and suecessfully 
eomj'leted IS weeks of trainim: at the Ciklahoma City P o ­
lice Academy. He graduat( d with high mark.s in Decem­
ber of 1979. (Tr. :134. Shu.) The Police Academy iirovided 
appri'-ximati'h- 70»' hours of training, although only 120 
wpje required by Oklahoma law. 70 O.S. ]9^1 >3811. The 
courses covered a variety of topics, including the civil 
rights of citi-/.’ n>. the civil and penal codes of the C ity 
of Oklahoma City and the pro-edure> to be followed for 
dealing with citi'/.en-  ̂ within the >reocrraphic boundaries of 
the City. (Tr. 320.) Following his graduation from the 
Police Academy. Officer Potramel rode for several months 
with ii .Senior patrolman assigned to the different aieas of 
(iklahoma City. Durim: this time, he i-erformed in a sa t­
isfactory manner. In accordance with Department i^olicy. 
lie v a s  allowed then ie i'i<le - so lo"  in ;i uolice cruiser. (Tr.

19'--201.'
On tln  ̂ ex eiiimr of October 4. 19^0. ibe Oklahoma C ity 

i'ollc'- ] )epart inent  receive'l a t - lephone  report that an 
lined n.bb.'t-y was in pioure.s- a'  tiie -'W e 11 Do Chib, a 

. innk in g  eOabl ishnamt . Tie:- eallm d-cr i ' iH-l  tlie robber 
as M-i,iie. liaviim brown l,a:r. a ; .proximai"lv :,7 years ohi 
aial wearint: eoloi eu classes, i T r. .)•■-. i J ii lalh i .u 
rei .or ted that the robber had a irun. (Tr .  (i(>..b>C.i All 
such calls to the Oklahoma C'lt> Police Deiiartni'-nt are

-  '  £»'«» rT *



tape-recorded. William Tut t le ’.̂  wife, plaintiff herein, later 
identified the voice on the police dejiartinent tape of the 
cal! that of her dec as^ed husband. (Tr. b3o.) The de- 
.-eription William 'i'uttle gave of the “ robber” matched 
hi.' own api>earance. William I 'uttle had quarreled with 
his wife that day. He had gone to the bar where he re ­
mained on and off all day and into the night, consumin': 
alcoliolie beverages. (Tr. 2.').) After  making the ])hone 
call. William Tuttle inf' inned one of the jiatrons of tin- 
bar that lie "was iroing to be shot that night. ( 1 r. 59l>.) 
Witne>'es also descrilied him as shakinc ate! s tating tha; 
)iothine: was wrong anymore. HIV. 44.)

The di ' j iateher for the (bklahoma City Police T>e])art- 
ment sent out an all [loiiits btillelin ol a roldji ry in prog­
ress at the We'll Do Club, and described the robbe,'-. Offi­
cer Kotramel. jiatrolling in the immediate vicinity. I’e- 
sj.onded to the call. He a r r iv -d  at the cluln parked his 
police vehicle and entered the bar. (dr .  537.)

The testimony of what occurred after Officer Ro- 
tramel entered the bar was in conflict. Ctfficer Roiramel  
testified as follows: uitoii entering the bar. he obseiwed 
!(• to 15 jieople. William Tuttb- looked toward the olfieer 
and began walking toward' him. Rotiamel  I'cached out. 
took hold of Willi.-mi Tuttle'.' arm and requested that he 
' ta\  withi': tie- liar. When Tuttle tried to walk jiast Ro- 
iraiiie! acain. the uiTicer lequestod that he "stay imt and 
Ttittle i-i-sjiomhd "why." Tin- offieer proceeded to M'>e-"- 
t'io'i ;i liarmaid. '.'onnie Hinds. Curing tin- questiotnie.;. 
i'utth iiileniiiied to b'-ud toward' his hoots and eontiiiue'; 

t(‘i trv to xiuirni loose it-oni the oliice: s grip aiid lca  ̂>■ th'- 
h;ii-. (Tr. 5.;!'. 7>4(-f) Tuttb- broke away from Officer Ro- 
tram 1. who proceeded to order rtittb- to "halt, vhich



ff herein, later  
It tape of tlie 
533.) The de- 
iber” niatclied 
uarreled with 
wliere he r e ­

lit. consuming 
ng tlie phone 
at run? of tlie 
t.” (Tr. 595.) 
il .stating tliat

’olice Dejiart- 
1)1 I V in ]>rog- 
rolther. ( tffi- 

viciniiy, re- 
I). parked liis

(MTicoi- Ro- 
iei R’otiamel

1)1- i)ll'el-\\.d 
:<l ill' iilVii-iT 

I •■.e l " ' .  1 ' .1)1 .
' ■ ' ' i 11; 1 ■ i I c ■

command wa< igniored. (Tr.  541.) Tuttle cleared the door 
which siirang shut in front of OfTicer Kotramcl. Rotramel 
luilled his s e rv ic  revolver from its holster and went out 
the door in inirsuit of Tuttle. Sinee Tuttle matched the 
descri))tion of the rohlxT and had broken loose. Rotramel 
thought 'I'uttle was in fact the rohher.

Outside the bar. Rotramel saM’ Tuttle in a crouched 
jiosition with liis hands located in or le ar his hoot. Due 
to the por t ion  of the door, tie' p;i’ rons insid.- were not 
able to see 'I'little's action.' or wh:i1 occurred after he left 
the liar. Rotramel ordered Tuttle to halt. Tuttle star ted 
to come Up from his (-rouched position, at which time Ro­
tramel discharged his wea))on. The officer stated that he 
ilischarced his weiipon in the belief that Tuttl ' had re­
covered a gun frmii his boot and wa< I'lreparing to use it 
on him and that his life was in .ieopardy. (Tr. 543.)

Following the shooting. Tutth- was transported by am­
bulance to the Baptist Medical Center  in Oklahoma City. 
During the course of his medical treatment,  medical ]ier- 
sonnel disrobed him. Vriien his boot was removed, a toy 
ca]) jiistnl fell to the cart. (dr .  455.) TR- was iiionounceil 
dead at f*:dd p.m.

The t rial  commenced on .Ma}- 2s. 1P^2. During tlm 
course of tln’ trial, iilaintii 'f introduced n<' )■vnU•ncl■ ot any 
pr io r  incidents of violence or mi])roper conduct or exec' - 
sive u.'o of forci' or, the iiarl <>: (»flic"r Rotramel .  Like- 
w i - a  tl.ero was no p- ' t ;monv  of miv ni-ior mci.h n ’ '  of vio­
lence. mi.'conduct. m mi.e i hoimo'd ui' .'xee'.'i' . e use oi 
force by any officer on the (.»i<lalioma (.'ity Rolice D.'iiart- 
ment. The only ineident brought  before the jury lor con­
sideration was the l ii 'cl iarge of a weapon !.y (Hi leer Rol-



ranic'l on the evening of October 4, 1980, rcsultim: in tlie 
tlenlh of ^Villial^ Tuttle.

During tlie course of tlie trial, extensive testinionv 
was ])re>enti‘d l)v Ipoth sirle.  ̂ regarding tlie trainin' : re- 
ci'ived by (Jklahonia City police officei's in geneial and the 
sjicciric ti'uining received by Officer Koti-aniel at the Okla­
homa ('ity l^olice Academy. The record i.- i-ejilete with 
exainple,' of the detailed cai'e gi\-eii to the training of eacii 
candidate for a jiosition of ]>olice officer with the Citv of 
( Hdahoiiia ( ity. The testimony as to the curricnlnni at 
the Academy revealed the extensive traijiing Koti'aniel 
himself went thi'ough before he was allowed on the streets 
as an offieor. Plaintiff  introduced ( 9.03 and v 17.01 of the 
Oklahoma City Police Dejiartment's (tperation Manual 
concerning tlu' use ol f irearms by law enforcamient nffi- 
cials and the use of force in making arrests, (Tr. 90. 'll.) 
'riiis ofi'icial policy manual ]jro\ided. inicr alia, that -'a 
police officer is jnstifieil in using his fii'eanii only m de- 
leiise of life and instances whei'e the sus])ect is armed and,, 
or maki]ig an attempt to kill or do great liodih harm.” 
(Tr. 92.)

Formei- Oklahoma City Chioi' of Police, Tom H e -e v .  
te.sTiliv'd tnat the ( M:lahc>ma f i l \ ‘ Police Academ\‘ had for 
years  licen rated one of the tO)i three jiohec academies in 
tile Nation. (Tr .  308.) Po t ram e]  - la ted  that he liad lieen 
t ra ined m the jiolicies and jiroeediires of the f t idahoma 
f it\- Police Dcjiartmeiit ,  and '•pecil ically t ra ined ni the 
p ro \ is ions  of j ia ragraphs  9.0.3 and IT.Oa. concerning tiie 
use of . leadiy force. L’ot ramcl  test ified that  Tu t t l e  
••matched tile desci'ijition of the armed robber .” ('I'r. 132.) 
l ie test I lied :



?siiltinc ill tl)e

'i\'o Tostiniony 
training !■(•- 

on era! and tlie 
el at the Okla- 

replete tvith 
ainiiiL" of e
til the t.'ity of
currienlmn at 
ing Kntraniel 
on the s tree t«
. 'i 17.01 of the 
ation Manual 
ircenient (jffi- 

('J'r, 00. 91. ) 
alia, that “ a 

in only in de- 
i.'̂  armed and 
lodily harm."

Tom Heirory. 
ieiny had lui 
acadejiiie^ in 
he liad been 

he (dklahoma 
aim-d ill the- 
ncerninLr the 
that Tuttle

“ Q. Officer Rotramel, why did you shoot William 
Adam Tuttle?

A. I felt like tliat he liad recovered a weapon and 
was preparing to use it on me in order to make 
his escape.

Q. Did you feel your life was in danger?

A. Yes. sir. I d id ."  (Tr. 544.1

The jury returned its verdict on the evening of June 
3. 1982 in favor of the jilaintifi’ and against the City of 
Oklahoma City in the amount of $1,500,000. The jury re­
turned its \erdict in f a \o r  of the co-defendant. Julian Ro- 
traimd. and against the jJaintiff. f)n .Tune 4. I!i82. the 
Court entered juilginent ]iursuant to the verdicts.

Tile C'ity of t )idahoma Cit>' filed a motion for J u d g ­
ment Xotwithstanding tlie A'ei’diel on June 24. Ifi82, which 
was overruled on August 11. lfiS2. An ajipeal was brought 
by the City of Oklahoma City to the United States Court 
of A]>peals for the Tenth Circuit. A cross-apjical was 
filed liy Rose Marie Tuttle from the decision rendered by 
the jui-y in favor of Officiu' Rotramel. On June  28. lftS4. 
tile Coui't of Ajipeals entered it> opinion affirming the 
jud.gment Ih-low. T'lie ])rinci)ial msue on aj)]K'a! was 4 
wlietiier a single isolated occurrence of tiie use of e.xces- | 

e 01 deadly force result.- :n municipal liabilit;. umlei' J



, - s r  ■■ 1 « "  for a single isnlaUsl inn'lent of tl,.- use of 
'  " f : , ; ,  l.v ....... ... of its ,.olicc Oo,,n,ni.on..

a . -n in i l i f  nl,s,.n«. of proof a, tniil of nn>
, . r 111,, ns,, of cseos.sive fore-,. I.y any niono

violence. ^
, . p „ „ , u t  focn.-oil llminaliom tlio trial on ,al ...goo

1 I f , 1„. ( iiv to train Kotraiiiol "  itli lOio" no <
„i .,„„ronc.l.ing n>at ™loiing a 

npliroliriato iiiamn i arinod robbei y
irro io v .... t..,.

"  , I , TllO sliooting llfl
ooonrrod on a s i . r r a ^

'1" a ' ' ' l « r ' '  'n l . 'c i t v  r ,  tlklahonio, C.i> as- 
“ J t '^ r f ^ i r a W  Ilotranio, sHooung Tiittl ,

“  , “  c Vo-11 Do Cinl. does no, ostaUlisli an - o l l . o i a l
o nston,”  of Oklahoma City- In ouoh mstancos

‘ . ,v such as tlio Oitv of Oklahoma City, may notamuim-i ii iihtv,  Mich a. ^
1,V bold Uabb- lor  damages undei 4_ L. .. • .

8

a r g u m e n t

A Mnnrcipality May No, Be Held Liable f -  Damages 
Under 42 U S 0. 1983 Absent an Estabhslred 0 ic,
L s l  ,v.th Eeference to the Use of Excessrve Force.

A. Instruction to the Jury.
The t r ia l  court ius^trucled the jui} .

rvilut a siuule. unusually exce-siw use of force
^ T i e u - n t l y  out uf the ortl .nary vvarram an



>f till- use of 
doiia I'f inoiit. 

trial of any 
L>y any nieiu- 
ircsonU'd no 
^otramc‘1 for

1 tlie allc'LO“'l 
•ronc(- to till' 
(■nt Cling a 

mod roblicry 
evant TO the 
Jent did not 
walk outside 
['icci's gra.-]) 
5in;; City as- 
oting Tuttle 
an “ official 
'll instances, 
ity, may not 
9Sd.

or Damages 
d Policy or 
Force.

inference that  it was at tributable to inadequate tra in­
ing or supervision amounting to •deliberate indiffer­
ence’ or ‘gross negligence’ on the ]iart of the officials 
in charge.” (J.Apji. 44).

This instruction was given with reference to the ele­
ments necessary to establish the liability of a inunicijialitv 
under I'J L .S.C. \ lh83. I ndcr these instructions, the ,]urv 
returned a verdict against the Cit>- id' Oklahoma City in 
the amount of 81.500.000.

Tile United S ta te s  Court of A]i])('als for the  Tenth 
Circuit affirmed the verdict against Oklahoma City. The 
Court s tated:

‘•Contrary to the present contention of ai)]iellant. tlie 
trial judge, in outlining the standard,  requiied prool 
of the City's gross n<f/lifu ncc. The jury was told that 
inadequate training of Rotraiuei amountinir to gros.- 
negligence and del iberate  indifl'erencc to the rights 
of the decedent was necessary in order to de]irive the 
decedent of his right to liberty and life witlioiit flue 
process. In other words, tiie gross negligence stand­
ard was plainly set forth as it ]>ertains to tlie civil 
rights claim under f 1983.
“ The instructions were not en-oneoiis. The gross

isc of force 
warrant  an

negligence-indifference standard was siifiicient as 
instructed. As a result the c<mrt v.as correct in 
denving dismissal ivlii'f to the (' iiv." F.t'd at
4o0.'
Thus the question: May a municipality be found li­

able under i 19S3 on the ground that one of its police of­
ficers committed an act from wliiel; tin- t rier  of fact could 
infer tliat the officer was so inadeijiiaiely trained as to 
constitute gross negligence nr deliberate imlifl'ercncc on 
the ]iart of tlie miinicipaiity ? (>r. nmst tin- proof show 
that the unconstitutional dcpri \at ion  wa.- the result of 
official jiolicy or custom on the pan  oi  a miinicijiality



10

B. Decisions of this Court.

In Monel! v. Neic York City Dej/t. of  Soc. S e n . ,  4.‘̂ (i
C. .S. 0.')S (lOTSj, lliis Court determined that an analysis 
(jf the leiriblative liistory of the Civil Kiehti  Act of 1S71 
romjielled the conclusion that Conciess did intend niii- 
niciiialitie." and other local 'roverninent units to hr in­
cluded anion:: the deJ’inition of jierson.' to whom ]!»Sii 
auplies.'  4dh r .S .  at (ihO. However, this Court held that 
a mnniel]ia!ity could he held liable only where tlie action 
that is alh'.ced to lie unconstitutional iniiilement'‘d or e.\- 
eciited a “policy statement, ordinance. repMilation. or de­
cision officially adorited and juomiilc'ated hy that body's 
officers." or where the dejn'ivalion occurred “imrsuaiit to 
u'overniiiental ‘custom' even thoipirh such a custom has 
not receix ed forma! apiirox'al throiiirh the hod}' s decision- 
makiiiy channels." 43ti I'.S. at GhO-GfU.

The Court in MoncU did not encace in an cxteiisixe 
discimsion of what constituted an official policy or a cus­
tom of a miinicijialit}'. Guidance i.s found in the Ccuirt s 
jirlor ojiiiiion m Hc/ic/.cs i. Kre^.^ d' Co., 3US I .S. 144 
l l lhh ) .  wherein the Court determined that the custom or 
usaue reipiired for state involvement was not merely a 
practice tiiat refiected loim' standinc- habits observed h\ 
jieojile in a particular locality, l lather.  the Court con­
cluded that "custom or iisace" a.- u.-eu in , lbs.! means 
liiat It must ha \e  the force ol law h_\ \ irtue ol "] ler.-ist eiit 
practices" oi' state officials.

Knllowinc this r ea ' (m in e . tin- C'euri - iP-icpa iidy •■n;. 
a.,.i i..ed that local co'vernmeiits are  i.ah e umn-r

States continue to enjo\ immunitx from suit uncier 42 
U.S.C. § 1983 b\ virtue of the Eleventh .Amendment.

vasSS'tS'.-®



11

Serv. ,  43C 
11 aualysi,^ 
ct of 1S71 
itoiid mu­
te I'o iii- 

0111 ' IftSM 
lu-ld that 

tiio action 
ted 01 ex­
on. or de­
hat body'< 
nrsuant  to 
ustoiii ha.' 

decision-

uuiily eiii- 
ier ‘ Jl'^h

under 42 
Tient.

only for dejtrivationp cammed liy uncon.stitntional official 
jiolicic.'; or cu.'tonis. Poll, Pounlji i . Dod'OV, 4.)4 I .S. 312 
( I h S l ) : (heen v. Cihj of 1 jidc/icndencr. 44') I ' .S. 1122 (IhSO). 
Xo decision of this Court ha.s estahlishod nmnicipal liabil­
ity on anv other basis. I ’ctifiouer has been unable to inul 
a deci.'ion of tin.' C'ourt addressiuL;' the i'siU' ol what con­
stitutes custom or jiolicy of a uuiuiciiiabty iii matters  in- 
vohiim' allc-at ions of improjuT traininc' or the use of 
exccssix'e force.

C. Decisions of the Federal Courts.

Following this Coui't's prououneemenl in d/owe// r. 
Xcir y o r k  Citu Dcjd. of Soc. S e n . ,  .n(pra, the federal 
courts luDi ' tn ieeled  with the prribleiu ot fonuulatmir 
Lnmbdine' to (leteriihue when a muuii-ipabty may he liable 
under ' lUSd. Thc.'C cuideline^ are in consideiabh'  liis- 
array.  In Lanf/uirand r. Hayden.  717 F.2d 220 (•) Cir. 
lltSd). a ])olice oificer named Hayden, who was on the 
])olicc force of dcfciidaiit. City of Pass ( hristiau. Missi.'- 
sippi. rcsjionded to a radio call roncerninu a jirowler. He 
saw Lancui ramrs  car iiarl.ed near the residence of the 
])e!'.-on who had rcjiortf'd the jirowler. Faniruirand .'
car s tarted to drive away. Tbpden fin'd h.- r e \o l \ e r  at 
the car. The bulict rti'ucl: l,ai._ ,;ira: ■,] i: tuo I'U'O ot tin
. 'C'., ■ V
to tho \ erdic! in the ca>e at bar :  tlie ,iur;. fomid m fa\r.;  
(,f Police Mfticcr llayd-'U Im’ a c a i ; . "  tii" ('it;, of P a "
Cii:!'i-1 ml : I'oi.■ S' 1..')<):»,nt II t. 'fin' tic ad'  mil ed; a;,,- 1

V 'i rand i(b’■nt'ca 1 1''' 1 in- 1 :)••o’■■ ad'  a n o  . ov a;n t. f

111 tuc il it-ia::It ca.-('. Tha 1 tiioory. a- ' t a ' " , i  oy tin- F ..lij

( 'll ■C'Ml ( 'OMTi. of ■ 1 ‘ a 1 . a '  :

••Tin ' li'.iam- of the ] ilaint iff .'Cil a'.:a!':'l I ij'' ( 'it y
w a ' lha: lb wa - inath'ijU al"!> Ira iird. pa: tici. iar-



12

]y in the use of liis pistol, and tliat tlio sliootina oi’ 
Lanirniraiid was, as tiiis contention was phrased in 
the trial court's charge to the jury, ‘a proximate r e ­
sult of the alleged policy or custom of the City of 
Pass Christian of i)lacim:' armed officers on the streets 
without adequate training in the use of wea]>ons or 
fireai'ius'." 717 f \2d at 222, 223.

The Fifth Circuit rex'er.'cd the .iudgmeut ac^ainst the 
Citv of Pas.- Chri. 'tian. It found no controllimr decision 
in malhinc it.> detei'mination :

“ Our research discloses no decision of the Supreme 
Court, or of this Court, which has made any holding, 
or given authori tat ive direction, on the issue of the 
liability under section P»S3 of a governmental unit for 
injuries resultiuL' from the lack of adequate training 
of its luT'onnel." 717 F.2d at 22u.

The Fifth Circuit reviewed all a\ai lahle authori ties  
on the issue and found that the decisions were not “h a r ­
monious." The Fif th Circuit held ;

“ . . . that a municiiiality is not liable under section 
lfH.3 for the noeliLreuce or errors negligence of it-; sub­
ordinate oi'ficial.'. including its chief of jiolice, in fail- 
imr to train the parricular officer in ciuestion. ni the 
ah.-<('uc( or rvi /hn-r  oi Icn.'-f o jiaftcni cP sniiilni
ith nh nf ■' in V'h e / I i f , c ' l/e  nt ntrcil or enann-

h i i  n i l  r  n i  i \ : I ' d '  o r  ro d ' n r  n1 j i Ci I i r i  n n s t  o n d "  f 

i i n r ]  o v  l i o t f  r o r i o v r  i nr i . i i n  p i  i ' n i i  o '  n n ' ' h r h d  I ' l o i  n o  
d ' - n  r  I d !  o r  d ' l i ' h  ' j i l ' i d f l  t Ii r  o n  d i ' o  i l l  i h r  j i o l l C r  i o r i r .

717 F.2d at 227. dd''. ' l-hr,plnis;.' si’iqdied.)

Tile Fifth Circuit noted that Fifficer Hayden had not 
been ci'cen nrni formal police trainim: whatsoe\cr. Tliis 
contrasts marltedly with the facts in the instant case, wiicre 
ftfficer Potrauiel had successfully comjileted an intensi'.-e 
IS-weck course at an outstanding police academy. am



13

sliooting of 
phrased in 

roxiniate re- 
the City of 

n the streets 
weaj)ons or

against the 
ing decision

be Supreme 
iny holding, 
ssne of the 
ital unit for 
ate training

authori ties  
■e not “har-

ider section 
? of its sub- 
lice, in fail- 
tion. in the

of similar
or endarr- 

misconduct 
h-ovior v ns 
lice force.’'

len had not 
ever. This 
case, where 
n intensive
lUY.

In concluding that the evidence in Languirand  was 
insufficient to meet the Monell test, the Fif th Circuit 
stated :

“Tliere is simply no evidence that the City, or its po­
lice force, had any policy or custom of resort to wea­
pons, or other employment of significant force, in 
circumstances which might be deemed improper, un­
necessary. or dangerous.  There was no evidence of 
any other  incident which involved, or which anyone 
claimed involved, police misconduct or e^•en any simple 
negligence on the part of the police. Apart  from the 
incident in question, there was no evidence that any 
police officer had ever acted, or was claimed to have 
acted, in an improper or negligent manner, or even 
that any citizen had been in.iured, or exposed to risk 
of injury,  in anu incident involving the police. There 
was no evidence that anyone on the police force, oth­
er than Hayden,  lacked sufficient skill, training,  and 
experience to be qualified for and able to adequately 
perform the position he or she held. There is simply 
no evidence that the City had any policy or  custom 
of placing armed officers on the streets who lacked 
adequate training, skill, and experience in the use of 
f irearms.

• • •

“ What we are dealing with here, so far  as this record 
discloses, is one isolated incident in which the police 
chief negligently, or grossly negligently, allowed one 
particular inadequate officer to go on patrol, and 
this officer's inadequacies resulted in one particular  
incident of negligent or grossly negligent injury to a 
citizen, flrievous and regret table as that incident and 
injury indisputably are. that does not convert this 
case to one of municipal ]iolicv or custom under section 

717 F.2d at 22S. 229.

The foregoing comments by the Fif th Circuit could 
apply without changing a word to the case at bar.



14

At approximately the same time Languirand  was de­
cided by the I-hfth Circuit Court of Appeals, tlie case of 
Wellington v. Daniels, 717 F.2d 932 (4 Cir. 1983), was de­
cided by tlie Fourtli Circuit Court of Appeals^ Tlie Fourth 
Circuit reached the same conclusions as the Fifth Circuit; 
to-wit. a single act or isolated incident is insufficient to 
establish municipal liability under t 1983.

In Wcllingion. the action was brought by the guardian 
of the Estate of Robert Gravelle. One Daniels, police of­
ficer for the City of Newport News. Virginia, struck Gra­
velle in the bead with a Kel-lite flashlight. The injury 
resulted in body paralysis. Plaint iff  predicated the action 
against the City of Newport News on “their failure to train 
and supervise properly the police department in the use 
of Kel-lite flashlights as weapons.’' 717 F.2d at 934. The 
result at trial was, once again, identical to. the result in 
the instant case ; the jury found against the plaintiff and 
in favor of the police officer, but returned its verdict 
against the city in the amount of $1.5(K3.000. The plaintiff 
in Wellington used the same "cxjiert witness" as Tuttle 
used in the instant case: one Dr. Kirkhani. Dr. Kiricham

Both Languirand  and W elling ton  were brought to the at­
tention of the Tenth C ircuit Court of Appeals. The City 
filed a supplemental m em orandum  January 19, 1984, ad ­
vising the Tenth C ircuit that these cases had been dec ided 
since the briefs had closed. The Cit\- also urged the Court 's 
considerat ion of them during oral argument. The Tenth 
C ircu it  made no reference to the cases in its op in ion  here­
in. Thereafter, when the Fifth C ircuit and the Eleventh 
C ircu it  dec ided Bennett v. C ity o l  Slidell, 728 F.2d 762 
(5 Cir. 1984), on petit ion for rehearing, 735 F.2d 861 (5 
Cir. 1984); Webster v. City  of Houston, 735 F.2d 838 (5 
Cir. 1984); and C ilm ere  v. C ity of Atlanta, Ca., 737 F.2d 
894 (11 Cir. 1984), the>' ignored the Tenth C ircuit 's o p in ­
ion herein.



15

rand ^vas de- 
i. tlie case of 
9S3), was de- 
’ Tlie Fourtli 
^ifth Circuit; 
isufficient to

the iruardian 
els, police of- 
i, struck Gra- 
. The injury 
ed the action 
lilure to train 
nt in the use 
1 at 934. The 
the result in 
plaintiff and 
d its verdict 
The plaintiff  
ss’’ as Tuttle 
Dr. Ivirlcliani

ght to the at- 
?als. The City 
19, 1984, ad- 
been dec ided  
ed the Court 's  
It. The Tenth 
op in ion  here- 
the Eleventh 

728 F.2d 762 
5 F.2d 861 (5 
5 F.2d 838 (5 
Ca.. 737 F.2d 

C ircu it 's  op in-

testified that in his opinion the Newport News Police De­
partment was “clearly deficient” in its failure to train 
police officers in the use of Kel-lite flashlights. His tes­
timony in the instant case was essentially identical to his 
testimony in WelUnciton.

The Court of Ap]>eals for the I-'ourth Circuit affirmed 
tlie district court's decision to enter judgment notwith­
standing the \-erdict in favor of tlie City of Newport News. 
The court stated :

“ In its most recent pronouncement on municipal lia­
bility under ^1983, the [Sipireme] Court made clear 
that a local government is liable under vl9S3 only for 
deprivations caused by unconstitutional official yioli- 
cies or customs." (Einiihasis by Court.) 717 F.2d at 
935.
The Fourth (.'ircuit note<l;

“ Indeed. Gravelle could jioint to only the single inci­
dent during which the waid of the estate was injured 
on which to predicate the Police ChieFs supervisory 
and the City’s municipal liability. . . . Therefore,  the 
district court appropriately granted the j.n.o.v. There 
siniyily was not sufficient evidence to su)i]iort a finding 
oi' City ])olicy to allow use of a dangei-oiis iiistrumen- 
talitv. or any encouragement iiy Chief Austin of sucli 
use." 717 F.2d at iC.i.

Tlu' Fifth Circuit Court of Apiicals has been shar]>ly 
divided in two recent ca-'Cs since Lanaui iand. to-wit. Ben­
nett V. (' )tu O' Shd' l l .  72S l-'.2d 7G2 (.3 Cir. 19S4). on pet i­
tion idr K'lit-nr iiLT. 77.-’i F.2d st'd (.3 Cir. ]fi' '4); TT ehster v. 
( it,I IJ,'U.^t,,H. 711 F.'Jd 3.3 (.3 Cir. I'.c;’.). on yntition for 
rehcarinc.  7:;.3 F.2d ^3" (5 Cir. 19>4), The Wchster  case 
in\ olv"d a I'.articularly shocking e)nsodc of jiolice miscon­
duct. Knndell Allen Webster, l i -ycars  ohl. stole a van



iron, a Dod^e dcalorshi,. m Houston and led police officers 
on a Id'di-speed chase. IVebster eventually lost control of 
ti.o va . rand  spun to a stop. He e.nerged from the c^n and 
v a -  l.ushed to the ground by the police officers. He had 
oo .un  and put up no resistance. One of the police officers
0 .  0t IVebster in the back of the head. He died later  that
01 .  ht The police officers agreed to use a “ th ro v  down

to make it appear that Web.tor  was armed at the 
dn.e he wa.  killed. In ivversing a judgment against the 
City of Houston under {l9So, the Fifth Circuit s tated;

“ Frider  our s tandard this case turns on whether  the 
Citv maintained a practice ol allownig  ̂ ^  ° ^
costive police force that was ‘a persistent,  -^ude^pread 
practice of citv officials or emiiloyees. which. 
not authorized V,v officially ndoyited and promulgated 
relic" is so common and well settled as to constitu e 
a custom that fairly represents mumcipal V ^ h c ^  
actions of citv emihoyees are to be used to proi e a 
custom for which the municipality is liable, those ac- 
Cons must have occurred for so long or so frequent j 
that  the course of conduct war ran ts  the at tr ibution to 
t h f  governing body of knowledge that the objection- 
aide conduct is the exj.octed. accepted practice of . 
emi>loyces.' i .>5 P .2d at S4_.

The live dissenting judges on the en banc rehearimr in 
Tr.T.c/cr gave .1/em// a broader n-ading. They stated;

“The Sui.rcme Court recognized it was presenting 
„ ‘ ,v ,i,c. sko„.l, . . n l , c  ■ »1 con.o.r .^ol
municipal liability under r l. 's. .  m '
pre^slv deferred -further

another day.- Id, at 695. 9s ts.Ct. at .Oe- Ih ,  . u- 
jircme Court's - other day ha.- yet te a i r n c .
“ This Court has only begun to flesh out the 
contours left bv MoncU. AVe have taken a re a t n e h  
i o l „ r n K d  vi..» of tlK. brcoJlh of both off,col ,,ol,cv

16

lO-



17

d police officers 
'• lost control of 
om the van and 
Ticers. He had 
e police officei s 
died later tliat 

a “ throw down 
armed at the 

ent against the 
reuit s ta t ed :

on whether the 
’ the use of ex— 
?nt, wides])read 
which, although 
id promulgated 
IS to constitute 
pal ])olicy.' If 
sed to prove a 
lable, those ac- 
r so frequently 

at tr ibution to 
the objection- 

practice of city

c rehearing in 
'licy s t a t e d :

•as jiresenting 
ull contours of 
fond!.  It ex- 
of this action 

JU3S. Tim Su- 
ive.

nt the skeletal 
•n a relatively 
official jiolicy

and governmental custom. Of course, we have held a 
city not to be liable under M983 where there is no evi­
dence that the deyirivations occurred as a result of the 
ci ty’s policy or custom. • * * Our en banc decision in 
Bennett v. City of Slidell, 728 F.2d 762 (5 Cir. 1984) 
concisely stated this yirinciple: ‘Isolated violations are 
not the persistent,  often rei>< a1'‘d. constant violations 
that constitute custom and policy.’ ’’ 7.3o F.2d at 850, 
851.
The dissenters found that the evidence in Webster  

made it clear that all members of the Houston Police De- 
jiartment were well aware of the “ throw down” custom, 
and yet no sjiecific steps were taken to stop it. In short, 
in the view of the dissenters, there was ample evidence to 
ymove an unconstitutional custom well-known to high rank­
ing officials of the City of Houston. The dissenters noted 
that the trial court had instructed the Jury that  the plain­
tiffs had to establish by the evidence “that there existed 
a regular yiattern of such conduct" so that it could be in­
ferred that the City of Houston through its high ranking 
officials implicitly authorized or approved such conduct. 
735 F.2d at 853. Thus, the Webster  majority would re- 
qui}'e evidence of unconstitutional action occurring “ foi' 
so long or so frequently . . . that the objectionable conduct 
is the exiiected. accei'ted ])ractice of city employees.’' The 

r minority would rec|uirc evidence of “ a regular 
yiattern of such conduct." Either  test is acccqrtable to the 
Citv of Oklahoma .City. At a minimum, a plaintiff should 
he requii'ed to submit yu'oliative cx'idence of a regular yiat­
tern of unconstitutional deyirivation of citizim's rights be­
fore municiyial liability can attach under -jlDSo.

On tlm -ame day that the Fifth Circuit is.sued its opin­
ion on rehearing in Trc/'.''/cr. the Ele\'enth Circuit issued



18

its o]3inion in Cihncre v. ( ' l iv of Atlanta,  Ga., 737 F.2d 
894 (11 Cir. 1!*S4). Gilnjerc’s decedent, one Thonjas Pa- 
tillo. spent the afternoon of New Year’s Day. 1980, drink­
ing lieavily. In an ensuing fracas ^vit]l police officers. Pa- 
tillo was sliot twice in tlie abdomen and died sbortlv tliere- 
after.  Tlie Eloventli Circuit stated idaintiff's tlieorv under 
§1983 as follows;

“The C’ity allegedly deprived Patillo of these [con­
stitutional] I’iLdits by iiromulcating a policy that per ­
mitted the de])loyment of untrained jiolice officers and 
the use of excessive force in iiolice-citizen encoun­
ters .” 737 F.2d at 899.

The trial coui’t entered judginent against the City of 
Atlanta on the ground that it had trained the policeman in 
a grossly negligent manner. Eeversing the trial court, the 
Eleventh Circuit held that “ gross negligence” was an in­
adequate basit for municiiial liability under Mi nell.

‘‘Thus. Monell irnjioses liability on inunicij-ialities for 
de]irivations of constitutional rights visited pursuant 
to municipal policy, whether that policy is officiallv 
promulgated or authorized by custom. Tlie official 
policy or custom ‘must be the mo\'ing force of the con­
stitutional violation in order to , .stablish liabilitv of a 
government body under 719S.3.‘ ” [citing cast's! 737 
F . ‘2d at 9(1].

3 he trial court in Gdwerf  had found that the ]iolice 
dejiartmeat s training oi tiie oliendniL' officer had beei so 
lacking a.- to constitute ‘'grits.- iifghgenci “ or “ delilierate 
indifference," 737 F.2d at 903. The Eleventh Circuit held 
that th" question o: whether the Atlanta Police Itcpart- 
ment had be. n negligent in trtiining the police officer is 
“irrelevant under the s tandard .” Id, at 902. In
holding the gross negligence-indifference standard insuffi­

cient un 
lanta, tli

D. Tki:

'f

t h a L ^  
inuttael^ 
tiff, fw  

»**•

they
no. "



»•, 737 P , a i ; ^  
rhomaiB 
1980, drink- 
officers, Pa- 
ortly there- 
iieory under

these [con- 
that per- 

officers and -/ 
;en encoun-

the City of 
oliceman in 
il court, the 
■was an in- 

onell.

palities for 
d pursuant 
Ls officially 
^he official 
of the con- 
ability of a 
cases] 737

the police 
ad been so 
‘deliberate 
' ircuit held 
ce Depart- 
‘ officer is 
Lt 902. Id 
ird insuffi-

ciPrit under Monell to place liability on the City of A t­
lanta, the Eleventh Circuit s tated:

“ ‘Gross negligence’ or ‘deliberate indifference’ is 
simply not the proper test for adjudging a due proc­
ess section 1983 claim against a municipality.
“ In summary,  the plaintiff in this case presented,  at 
best, an isolated incident in which the police officers 
used excessive force to restrain an arrestee.  The 
plaint iff  did not present an incident that was the 
iiroduct of a City or police department custom to use 
excessive force. * * * Pati l lo’s injur}' at the hands of 
Ofl'icers Craig and Sampson was not caused by their 
execution of official municipal policy or of custom. 
Accordingly, the judgment against the City of Atlanta 
must Vie reversed.” 737 F.2d at 904, 905.

The Decision of the United States Court of Appeals 
for the Tenth Circuit.

In the instant case, the trial court instructed the jury 
that Officer Rotramel had the defense of “ good fai th” 
immunity to protect him against the claims of the plain­
tiff. The jurors  were told that if they found Officer Rot- 
I amcl acted with a good faith belief that his actions were 
lawful and reasonable under the existing circumstances, 
ihcv should return a verdict for Rotramel. The jury did 
.«). Tho Tenth Circuit affirmed. It is difficult to har- 
miinize the jiortion of tlie Tentli Ci rcuits  opinion vhich 
afii rmed the judgment in favor ol Rotramel.  with that 
purtion of the opinion that aff irmed the judgment against 
I 'klahoma City. For  example, the Tenth Circuit s tated:

"Defendant  Rotramel admitted at trial tliai he riolaUd  
Pohee Deparimeni policy in shooting Mr. Tutt le .” i2S 
F.2d at 458-459. (Emphasis supplied.)
As noted, the “ policy’’ of Oklahoma City was (and is) 

that police officers are not justified in using f irearms ex-

19



'.i

cept in defense of life or where the suspect is armed and/  
or at tempting to kill or do great bodily harm. The act of 
Rotramel in discharging his service revolver and therebv 
causing the death of William Tuttle, was at odds with the 
“ official policy” of Oklahoma City. Thus,  the first fork 
of the Monell test w’as not met under the circumstances 
surrounding this incident. But, regardless of the absence 
of such an official policy on the part  of Oklahoma City, 
what about “ custom” ? As the Eleventh Circuit stated in 
Gilmere v. City of Atlanta,  Ga., supra:

“ Monell limits what may constitute ‘custom.’ Custom 
consists of those practices of city officials that are ‘so 
permanent  and well sett led’ as to have ‘the force of 
law.’ Id. 436 U.S. at 691, 98 S.Ct. at 2036. In defin­
ing custom in this fashion the Monell Court borrowed 
language from Adickes v. S.H. Kress  A  Co., 398 U.S. 
144, 167-168, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 
(1970), which defines the term ‘custom’ as ‘persistent 
and widespread . . . pract ices’ or practices that are 
‘permanent and well sett led’ or ‘deeply embedded t r a ­
ditional ways of carrying out . . . policy.’ Id. Ac 
cord, Bennett  v. City of Slidell, 728 F.2d 762 (5 Cir. 
19S4) (en banc). Monell additionally teaches that the 
city custom which may serve as the basis for liability 
may only be created by city ‘lawmakers or those whose 
edicts or acts mav fairlv be said to re])resent official 
policv.’ 436 U.S.' at 694. 9S S.Ct. at 2037-38.’’ 737
F.2d'at  901, 902.
One does not have to define “ custom’’ in the restr ic­

tive terms of Monell to see the flaw in plaint iff 's  proof in 
this case Here,  there was a complete absence of onv  proof 
that Oklahoma City had a “ custom’’ of blinking at the 
improper use of f irearms by its police officers, much less 
a practice so “ persistent and widespread” or “ permanent 
and well set t led’’ or “ deeply embedded in traditional ways 
of carrying out policy” as to come within the Monell  rule.

20



21

rmed and /  
The act of 
ad thereby 
is with the 

f irs t fork 
jumstances 
he absence 
loina City, 
t s tated in

Custom 
hat a r e ‘so 
le force of 

In defin- 
t borrowed 

398 r . s .  
Ed. 2d 142 
■persistent 
s that are 
•edded tra- 

Id. Ac 
•62 (5 Cir. 
gs that  the 
or liability 
lose whose 
>nt official 
-38." 737

he restric- 
’s proof in 
anu proof 

Lng at thr 
much les.< 

permanent 
ional ways 
onel! rule.

The facts are simply th e s e : Officer Rotramel was
trained for 18 weeks at taxpayer expense. Oklahoma City 
gave him the same training it gave all the other cadets in 
his class at the police academy. There was no showing 
that any other member of that class ever acted in a man­
ner that betokened inadequate training, much less grossly 
inadequate training. There was no showing that any 
other  Oklahoma City policeman used his weapon im­
properly.

How can it seriously be contended that Oklahoma City 
had ‘‘an official policy or custom" of giving its police of­
ficers grossly inadequate train ing! AVhere is the proof 
that would support such a bazaar contention? Such proof 
does not exist.

Even assuming more than Monell requires;  that is, 
even assuming that “gross negligence” or “deliberate in­
difference” supply the standards by which municipal li­
ability is to be tested under > 1983— and Monell does not 
say that by a long shot—such proof in the instant case 
is utterly wanting. Tested by the strict language of Mon­
ell—that is, official policg or custom of gii'ing its polite 
officers inadequate training,  the proof in this case is di- 
rectlv contrary to the plaintiff .' theory. Oklahoma City 
requires all of its police officers to underTO lemrthy and 
rigorous training. And. Cfklahonia C'ity s official policy or 
custom is to sanction the use of f irearms otdy under the 
most extreme circumstance.'-' of threatened mortal harm 
to the police officer or other  innocent jicrsons.

Thus, we come full circle: may a single incident of 
excessive force, coupled with the testimony of an exjiert 
witness that the officer was not projicrly trained to deal 
with the situation he confronted, provide the basis for



holding that  the municipality had an “official policy or 
custom’̂  of depriving its citizens of their constitutional and 
statutory  rights?

I t  is respectfully submitted tha t  more should be re ­
quired. I t  is difficult to see what Oklahoma City could 
have done differently to anticipate and prevent the Eo- 
trarael /Tutt le incident. The City of Oklahoma City cov­
ers many square miles. I t  doesn’t have the money to afford 
the luxury of putt ing two policemen in each cruiser. Ok­
lahoma City’s police force is spread thin. (Tr.  206.) Sure­
ly it IS not too much to require that a plaint iff  submit proof 
of some pat tern of misbehavior that is sanctioned, or at 
least tolerated, by high ranking city officials, before the 
municipality itself may be held liable in damages under 

19S3. Such a standard comports more readily with the 
notion that the citizens of the municipality, who bear the 
financial burden of the judgment through taxation, share 
in the responsibility for  the event. In a democracy, such 
a standard at least harmonizes with the theory that the 
people are the ultimate sovereign.

22

SUMMAEY

I t  is respectfully submitted that the decision of the 
United States Court of Appeals for the Tenth Circuit 
should be reversed.

B urck B ailey
M ap.g.ap.et M cM orbow-L ove
F ellers. S x ider . B l a x k e x s h ip ,

B ailey &: T ipp e x s  
24th Floor, F irs t  National Center 
Oklahoma Citv, Oklahoma 73102 
(405) 232-0621
Attorneys  for Pet i twner ,
The City of Oklahoma City