Brandon v. Holt Brief for Petitioners

    No. 83-1622

I n  t h e

fflnurt of tiff IlmtfJii States
OcTOBEE Term, 1984

E lizabeth B randon, et al,,

V.

J ohn D. H olt, etc., et at.,

Petitioners,

Respondents.

ON WRIT OE CERTIORARI TO THE UNITED STATES 
COURT OE APPEALS EOE THE SIXTH CIRCUIT

BRIEF FOR PETITIONERS

E lizabeth A. McK anna 
686 W. Clover Drive 
Memphis, Tennessee 38119

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

W illiam E . Caldwell 
P.O. Box 60996 
Fairbanks, Alaska 99706

J. LeV onne Chambers
E ric S chnappee*

NAACP Legal Defense and 
Educational Fund, Inc. 

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

Counsel for Petitioners

*Counsel of Record



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1

QUESTION PRESENTED

Did the Court of Appeals err in holding

that a monetary judgment under Rule 25(d),

F.R.C.P., against a public official "in his

official capacity" imposes personal liabi-
1

lity on the official?

 ̂ A list of the parties is set out at p. ii of 
the Petition,



11

TABLE OF CONTENTS

Page

Question Presented .. 

Table of Authorities

Opinions Below ......

Jurisdiction .........

Rules Involved ......

Statement of the Case

1

iii

1

2

3

4

(1) The Assault on Pet i-
tioners Brandon 
Muse ...........

and
4

(2) The Policies of 
of Memphis ....

the City
7

(3) The Proceedings Below .... 18

Summary of Argument 

Argument ...........

28

30

A Monetary Judgment Against A 
Public Official "In His Offi­
cial Capacity" Imposes Liabi­
lity on the Government Entity 
for Which the Official Works, 
Not On the Official Personal­
ly ...............................

Conclusion

30

39



TABLE OF AUTHORITIES

Bertot V. School District No. 1,
Albany County, 613 F.2d 245
doth Cir. 1979) .................  36

Campbell v. Bowlin, 724 F.2d 484
(5th Cir. 1984) ..................  36

Family Unidas v. Briscoe, 619 F.2d
391 (5th Cir. 1980) .............. 36

Gay Student Services v. Texas 
A & M University, 612 F.2d 
391 (5th Cir. 1980) .............  36

Hutto V. Finney, 437 U.S. 678
(1978) .............................  29,36

Key V. Rutherford, 645 F.2d 880
doth Cir. 1981) ...............  36

Kincaid v. Rusk, 670 F.2d 737
(7th Cir. 1982) ..................  36

Lehman v. Trout, 79 L.Ed.2d 732
(1984) ............................ . 26,27

Monell V. New York Department of 
Social Services, 436 U.S. 658
(1978) ........   15,19,

21,29,34,
35,36,38

Nekolny v. Painter, 653 F.2d 1164
(7th Cir. 1981) ..................  36

Newport v. Fact Concerts, Inc.,
453 U.S. 247 (1981 ) .............  24,25

- iii -

Cases Page



Owen V. City of Independence, 445
U.S. 622 (1980) ................... 26,29

30,35,36

Paxton V. Campbell, 612 F.2d 848
(4th Cir. 1980) ................... 36

Pullman Standard v. Swint, 456 U.S.
273 ( 1982) ......................... 26

Scheuer v. Rhodes, 416 U.S. 232
(1974) .............................. 26

Unversal Amusement Co. v. Hofheinz,
646 F.2d 996 (5th Cir. 1981) ... 36

Van Ooteghem v. Gray, 628 F.2d 488
(5th Cir. 1980) ................... 36

Rules

Rule 25(d), Federal Rules of Civil
Procedure ..........................  3,28

32,33,34

Rule 43(c)(1), Federal Rules of
Appellate Procedure .............. 3,32,38

Rule 801(2)(D), Federal Rules of
Evidence ...........................  22

Supreme Court Rule 40.3 ............  4

Other Authorities

28 U.S.C. § 1254( 1 ) .................  2

3B Moore's Federal Practice
H 25.01[13] .......................  28,33

- iv -

Cases Page



NO. 83-1622

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1984

ELIZABETH BRANDON, et £ l .,

Petitioners,

V .

JOHN D. HOLT, etc., e^ a l .,

Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

BRIEF FOR PETITIONERS

OPINIONS BELOW

The decision of the court of appeals is 

reported at 719 F.2d 151, and is set out at 

pp. 28a-43a of the Appendix to the Petition.



The order denying rehearing, which is not 

reported, is set out at Petition Appendix p. 

44a. The district 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 to the Petition.

- 2 -

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 was due until March 31, 

1984. The petition for a writ of certiorari 

was filed on March 30, 1984, and was

granted on May 21, 1984. Jurisdiction of

this Court is invoked under 28 U.S.C. § 

1254(1).



- 3

RULES INVOLVED
■ ■  I. < n  j , .... g „ ,„

Rule 25(d), Federal Rules of Civil 

Procedure, provides:

(d ) Public Officers; Death or Sppara 
Lion 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 automatically s u b s t i ­
tuted as a party. Proceedings following 
the substitution shall 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 s u b s t i t u ­
tion .

(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 Appel 

late Procedure, provides:

(c ) Public Officers; Death or Separa 
tion from Office



- 4

(1) When a public officer is a 
party to any appeal or other proceeding 
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 substi­
tuted 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 d i s r e ­
garded. 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 substi­
tuted as a party. Proceedings following 
the substitution shall 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 substitu­
tion .

STATEMENT OF THE CASE

(1 ) The Assault on Petitioners Brandon 
and Muse



- 5

The events which gave rise to this 

litigation occurred on the night of March 5, 

1977. Petitioners Elizabeth Brandon and 

dames Muse, both high school students, went 

out on a date in the early evening. F o l l o w ­

ing dinner and several hours at a high 

school dance, they drove to a secluded 

street known as Shady Grove and, as young 

couples are wont to do, parked there. 

Approximately half an hour later Memphis 

Police Officer Robert Allen approached the 

car. Expressly identifying himself as a 

Memphis City police officer, and displaying 

his police identification card, Allen 

ordered Muse to step out of the car. After 

briefly questioning Muse, officer Allen 

maliciously, and without provocation 

assaulted Muse with a knife, slashing his 

throat from ear to ear. When Officer Allen 

tried to break into the car where Ms. 

Brandon was seated. Muse, despite his



- 6

injuries, jumped in the driver's side and 

quickly drove away. Officer Allen then drew 

his service revolver and shot at the fleeing 

couple. The bullet shattered a window in 

the car and struck Brandon in the face. 

Allen returned to his own vehicle and 

pursued Brandon and Muse, repeatedly 

attempting to run their car off the road.

With officer Allen in hot pursuit, 

Brandon and Muse fled to a local hospital, 

where both petitioners were treated for 

injuries sustained in the assault and 

shooting. Muse required surgery for his 

wounds, and was permanently disfigured. 

Neither Brandon nor Muse were ever charged 

with or suspected of any offense; Officer



- 7

Allen was ultimately indicted and convicted

of assault with intent to murder in connec-
2

tion with this incident.

(2) The Policies of the City of Memphis

The officer who assaulted petitioners, 

the district court concluded, was an 

"obviously dangerous man" whose "dangerous 

propensities were widely known among 

officers of the Department" prior to the 

attack of March 5, 1977. (Pet. App. 24, 26, 

27). The district court noted:

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.^

The details of the incident are set forth in 
the opinions of both the district court and 
the court of appeals. Pet. App. 5a-8a, 
31a-32a. The testimony of petitioners 
concerning this incident is at pages 10-55 
of the trial transcript.
Pet. App. 9a. see also Tr. 147 (refused to 
ride with Allen; "mental case"), 156 
(refusal to ride with Allen, "mental case"), 
161 (refusal to ride with Allen).



Among the statements made by Allen's fellow 

officers following the assault on p e t i ­

tioners were "they finally caught up with 
4

him" and "Allen has finally done something
5

this time that he can't get out of." Three

days after the attack, the Commander of the

Special Operations Bureau described Allen as
6

"a walking time bomb."

Allen's reputation within the Memphis 

Police Department was well deserved. When 

Allen was first hired as a police officer, a 

psychiatrist retained by Memphis to evaluate 

such applicants warned that Allen

- 8 -

may ... have difficulty controlling 
his impulses.... [h]is test data 
indicated some maladaptive behavior, 
thus he should be observed and 
supervised. ̂

4
5
6 
7

Pet. App. 9a; Tr. 47.
Pet. App. 9a; Tr. 70, 81.
See The Commercial Appeal, March 8, 1977. 
Ex. 4, Deposition of E.W. Chapman. Chapman 
stated that under the Department's proce­
dures neither Allen's precinct commander nor 
any one else would have seen this warning 
after he was hired. Pp. 18-19.



By the time of the assault on petitioners 

some 20 complaints had been filed against 

Allen, including charges for serious abuse 

of policy authority and use of unnecessary 

force. (Pet. App. 11a). Allen had been 

suspended on one occasion for beating an 

inmate at the city jail. On another 

occasion Allen, apparently angry that a 

woman had reported a burglary, stopped her 

car on an interstate highway.

ordered her into his squad car and 
taunted her for about an hour and a 
half.... 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. Although she had presented 
a valid driver's license when asked. 
Officer Allen charged her with 
driving without a license.^

8
9

Tr. 223-25.
Pet. App. lOa-lla. The victim testified 
"[H]e knocked me up against the hood, 
grabbed me by the arm, and opened the door, 
and literally threw me in the police car." 
Tr. 120. She characterized Allen's conduct 
during her ordeal as "crazy." Tr. 118.



10

No action had been taken by the Department

regarding the complaint filed with regard to

this incident. (Pet. App. 11 a).

Allen's most bizarre conduct apparently

arose out of an incident in 1975 when he
10

shot and killed a teenage black youth. On

October 18, 1975, Allen spotted the victim

apparently engaged in stealing a television

set from a closed hotel. After chasing the

suspect on foot, Allen drew his service

revolver and shot him. The circumstances of

the killing prompted authorities to refer

the case to the grand jury, but the grand
11

jury refused to indict Allen. Thereafter 

Allen repeatedly bragged about the killing; 

a fellow officer remarked of Allen, "[H]e 

thought it was a great thing, you know to be

^0 Tr. 145, 24 3-45. The details of the 
incident are set out in a Firearms Use 
Report filed by Allen. There was no claim 
that the victim was armed.

'll Tr. 157-8.



a police officer and kill somebody." Allen 

expressed to his fellow officers a morbid 

interest in the nature of the lethal wounds

- 11 -

12

he had inflicted on his victim.
13

Allen

referred to a pair of gloves in his p o s s e s ­

sion as his "killing gloves," and he would 

ceremoniously put on those gloves when he

was called to the scene of a crime. (Pet. 
14

App. 9a)

Officer Allen, in short, was an obvious­

ly and exceptionally dangerous man whom no 

sensible police department would have armed 

with a gun and a badge and set loose on the 

local citizenry. The district court held 

that Allen's immediate supervisors were

^2 Pet. App. 9a; Tr. 148.
Pet. App. 9a; Tr. 151 ("You know, guys, I 
sure would like to get that lead, and see 
what kind of spread it had when it went in 
him, what kind of damage it did to him.") 
Allen later said of the effect of the 1975 
shooting," I was not mentally strong enough 
to hold a job as a police officer.... I had 
occasion to shoot a man and I killed him in 
the line of duty. I was not able to 
comprehend that or to carry that burden." 
Transcript of Hearing Before Magistrate, 
1982, p. 4.



12

App. 25a). One of Allen's fellow officers,

in successfully seeking to avoid riding in a

squad car with Allen, had described Allen's
1 5

abberant behavior to their captain, and

Allen himself stated that he had spoken

about his problems with "upper echelon 
16

people." The district court concluded that 

Alien had been kept on the force despite his 

well known propensity for violence as a 

result of four Memphis City policies.

First, the procedures followed by 

Chapman and his predecessors deliberately 

and systematically insulated the Director of 

Police from any knowledge of violence or 

other misconduct by police officers, thus 

assuring that they would never take steps to 

correct or prevent such action. (Pet. App. 

23a-24a). At least until 1977, it was 

Departmental policy never to show the

aware of his dangerous propensities. (Pet.

15 Tr. 147, 158-59.
1^ Transcript of Hearing before United States 

Magistrate, 1982, p. 5.



Director complaints or intornal roports

regarding policy b r u t a l i t y . E v e n  though

Director Chapman sent an individual letter

to every person filing such a complaint,

assuring the complainant that the matter was

being investigated, the form letter Chapman

signed never mentioned either the incident

complained of or name of the officer

involved, thus leaving Chapman ignorant of
1 8

what his subordinates were doing. The 

District Court concluded that, under p r o c e ­

dures which still remained in effect at the 

time of the trial, the Department imposed on 

its supervisors no duty to discover officers 

who might have dangerous propensities, and 

no duty to report known problems to Chapman 

or anyone else. (Pet. App. 13a). The 

Police Director has never taken any affirma-

- 13 -

y  Tr. 172-174, 215-17.
Pet. App. 15a-23a; Tr. 185, 189.



tive steps to learn of officer misconduct 

from precinct level supervisors. (Pet. App. 

13a-14a).

Second, there was throughout the 

Department a code of silence binding 

patrolmen and supervisors alike not to 

testify against or report on their c o l ­

leagues. (Pet. App. 14, 22-23). That code 

is enforced by peer pressure, and tacitly 

sanctioned by the refusal of the Department 

to impose on its employees any obligation to 

disclose, even under questioning, misconduct 

by their fellow officers. (Pet. App. 13a). 

Chapman candidly acknowledged, "We have 

never, since I have been director, had the 

first single case where officers would 

really cooperate in terms of telling us on

an official basis what they knew about a
19

fellow officer." The only step Chapman ever 

took to end this practice was to provide a

- 14 -

19 Tr. 178; see also 184, 196, 202-03, 204,
2 1 0 .



15

psychological counseling service for

o f f i c e r s .
20

The code of silence which

pervaded the Department and was tolerated by 

its highest officials was precisely the sort 

of custom referred to in Monell v. New York 

Department of Social Services, 436 U.S, 

658, 691 (1978).

Third, until July of 1980 it was the

policy of the Department never to reassign

an officer from a position for disciplinary

reasons. As Chapman explained, "any

transfer for any wrongdoing or for any

suspect of wrongdoing ... was specifically
21

prohibited." Because of this restriction, 

which for years was contained in the 

agreement between the city and the police 

union (Pet. App. 14), Chapman would not and 

could not have reassigned a violent officer 

from patrol work to a desk job. The 

termination of this policy in 1980 had in

20 Tr. 204.
21 Tr. 192; see also Tr. 178, 193, 196-98, 199



16

Chapman's words "very positive results" (Tr* 

193), but it was a change which came several 

years too late to prevent the assault on 

petitioners.

Finally, any di s c i p l i n ar y  action 

involving the dismissal of an officer or a 

suspension in excess of 10 days required 

approval of the city Civil Service C o m m i s ­

sion, whose members were chosen by the
22

mayor. It was in Chapman's view the policy

of the Commission never to uphold the

dismissal of an officer if it were based on
23

violent misconduct. Chapman testified that 

he had on one occasion attempted to dismiss 

an officer whose conduct he described as 

"very similar to" Allen's; that officer had 

threatened to shoot his lieutenant, and had 

become so excited while p istol-whipping a
24

defendant that he passed out. The Civil 

Service Commission, however, reinstated the

22 Tr. 180, 195.
23 Pet. App. 14a-15a, 23a.
24 Tr. 183-84.



17

dismissed officer. Based on that case and

similar incidents it was apparently

Chapman's practice not to attempt to fire an

o^^icer for brutality, since he believed

such dismissals would inevitably be over- 
26

turned.

Chapman accurately characterized the

disciplinary situation within the Department

at the time of the assault on petitioners as
27

hopeless," Under the City policies then 

in effect the Director was insulated from 

information regarding officers whom even 

their colleagues knew to be unstable and 

dangerous, and the Department was unwilling 

to actually mete out any significant punish­

ment to officers found guilty of misconduct. 

Immune from any scrutiny by the Police 

Department, Memphis police officers were 

armed not only with a gun but also with a 

license to attack citizens virtually at

Tr. 184; Pet. App, 23a; see also Tr. 
Pet. App. 15a; Tr. 195.
Tr. 198.

208



will. Chapman acknowledged, "in my opinion

... probably many cases were not handled as

they should be. It was not the emphasis on

the responsibility of the department or the

individual officers as there should have

been." (Tr. 208-09). Officer Allen was

clearly one of those mishandled cases.

(3) The Proceedings Below

Petitioners commenced this action
28

against Officer Allen and Director Chapman 

on February 22, 1978, in the United States 

District Court for the Western District of 

Tennessee. Both the caption and the body of 

the complaint named as a defendant "E. 

Winslow Chapman, Director of Police" (3.A. 

4a) ; neither suggested that Chapman was sued 

only in his personal capacity. An answer 

was filed on Chapman's behalf by the Memphis 

City Attorney, who has continued to repre-

- 18 -

28 The complaint also named as a defendant the 
Mayor of Memphis. The district court 
granted a motion to dismiss on behalf of the 
Mayor on July 13, 1978.



sent Chapman throughout these proceedings. 

Any uncertainty that might have existed 

regarding the capacity in which Chapman was 

sued was definitively resolved more than 19 

months prior to trial. In response to a 

motion for summary judgment also filed on 

Chapman's behalf by the Memphis City 

Attorney, counsel for petitioners stated 

unequivocally:

- 19 -

Defendant Chapman is sued in his 
official capacity as Director of 
Police Services, City of Memphis 
Tennessee. "[Ojfficial capacity 
suits generally represent an action 
against an entity of which an 
officer is an agent...," Monell v. 
New York Department of Social 
Services , ^36 U . S . STIT! 69Q n . 55
T T 9 7 8 T T ^

Response to Renewed Motion for Summary 
Judgment of Defendant E. Winslow Chapman, p. 
2, this document also alleged that certain 
city policies alleged to have caused the 
assault on petitioners were carried out by 
"[djefendant Chapman, acting in his official 
capacity." Id. p. 3.



20

This statement clearly put both Chapman and 

the City Attorney on notice that petitioners 

were not seeking a personal judgment against 

Chapman, and that any monetary award would 

have to be paid by the city itself.

A default judgment was entered against 

Officer Allen. The case proceeded to trial 

against Director Chapman in September, 1980. 

Throughout the trial it was repeatedly made 

clear that the action was against Chapman 

only in his official capacity, and that 

petitioners contemplated that if they 

prevailed the judgment would as a practical 

matter run against the city. In his opening 

statement counsel for petitioners e m p h a ­

sized :

Mr. Chapman is sued in this lawsuit 
in his official capacity, and as was 
stated in Monell versus New York 
City Department of Social Services, 
a 1978 Supreme Court case, official 
capacity suits generally represent



21

only another way of pleading an 
action against an entity of which an 
officer is an agent.

Counsel for petitioners also acknowledged 

that under Monell the critical factual issue 

was whether the assault on petitioners 

Brandon and Muse was the result of Memphis

City policies:

The suit against Mr. Chapman in his 
official capacity is one which 
addresses itself to what we allege 
are problems within the Memphis 
Police Department.... [T]he 
determination for the Court to make 
is whether ... these policies which 
allow a person of the nature of 
Robert Allen to go about the streets 
of Memphis, Tennessee, with his 
service revolver and all the other 
trappings of a police officer ... 
deny equal protection of the 
law....

During the course of the trial the district 

court ruled admissible hearsay testimony 

regarding out of court statements by several

Tr. 6. Counsel for petitioners referred at 
two other points in his opening statement to 
the fact that Chapman was sued in his 
official capacity.
Tr. 7.



police officers, on the ground that such 

officers were agents or employees of a 

party. Since the officers in question were 

employees and agents of the City of Memphis, 

not of Chapman personally, that decision 

reflected the court's understanding that it 

was the City which was the defendant. In 

discussing the admissibility of other 

evidence, counsel for petitioners reiter­

ated, "Mr. Chapman is not sued individually, 

but in his official capacity.... [Wjhether 

or not Mr. Chapman is liable in his personal

capacity, that's not the issue in the 
33

lawsuit."

The district judge found Chapman liable 

for the violations of petitioners' c o n ­

stitutional rights. In his Findings of Fact 

the judge emphasized on three occasions that 

the action and his finding of liability were 

only against Chapman "in his official

- 22 -

52 Tr. 17-21, 45-47. See Rule 801(2)(D), 
Federal Rules of Evidence.

55 Tr. 202, 233.



capacity," The judge also made clear his 

understanding that the judgment was to be 

paid by the city, citing this Court's 

holding in Monell that "official capacity 

suits generally represent only another way 

of pleading an action against an entity of 

which an officer is an agent...." (Pet. 

App. 16a-17a).

That understanding permeated the lower 

court proceedings which followed. The trial 

court referred the assessment of damages to 

a magistrate (3.A. 21a). In their brief 

concerning damages, petitioners expressly 

noted that the trial court had found Chapman 

"to be liable in his official capacity for 

the injuries suffered by the plaintiffs."

The City Attorney not only emphasized in his

- 23 -

34

Pet. App. 1a, 16a, 21a. See also 26a
(Chapman held liable "in his capacity as 
Director of the Memphis Police Department.") 
Plaintiff's Pre-Hearing Brief for Award of 
Compensatory and Punitive Damages, 1; see 
also J^. at 3 (Chapman held responsible "in 
his official capacity" for injuries to 
petitioners).



reply brief that the finding of liability 

was only against Chapman in his official 

capacity, but relied on that aspect of the 

trial judge's decision to avoid an award of 

punitive damages. Citing this Court's 

decision in Newport v. Facts Concerts, Inc,, 

453 U.S. 247 ( 1 981 ), the City Attorney

asserted that "no award of punitive damages 

is to be made against defendant Chapman 

since he was found liable in his official 

capacity." Since Newport, while forbiding 

awards of punitive damages against munici­

palities, had expressly upheld such awards 

against individual municipal officials, the 

argument thus advanced by the City Attorney 

made no sense unless he too understood that 

the award against Chapman "in his official 

capacity" was in fact an award against the 

City of Memphis. The Magistrate shared 

respondent's view on that issue, holding

- 24 -

^6 Brief of Defendant E. Winslow Chapman on 
issue of Damages, 1.



- 25

that "no punitive damages may be awarded 

against defendant Chapman, since he was sued 

as Director of the Memphis Police Depart- 

City of Newport v. Fact Concerts, 

j-̂ P, •” (J.A. 32a), In calculating the

compensatory damages allowable against 

defendant Chapman, the Magistrate refused to 

take into consideration any additional 

psychological harm suffered by petitioners 

due to the fact that the assault had been 

carried out by a police officer (J. A. 

23a-27a), The district court approved the 

magistrate's recommendations, (3,A, 35a- 

37a), Both parties appealed.

While the case was on appeal Chapman 

left office, and was replaced as Police 

Director in December 1 982 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 this litigation against Chapman in his 

official capacity was ” a suit against an 

individual, not the city." (Pet. App. 39a). 

Petitioners urged on appeal that as a matter 

of law no good faith defense was available, 

since a m u n i c ipality can assert no such 

defense under Owen v. City, of. Independence, 

445 U.S. 622 (1980). The court of appeals, 

having concluded that a judgment against 

Chapman in his official capacity was a 

judgment against him personally, held that 

Chapman could assert such a good faith 

defense under Scheuer v. R h o d e s , 416 U.S. 

232 (1974). Although the district court had 

understandably never addressed the factual 

issues involved, the Sixth Circuit then 

proceeded to consider the merits of the good 

faith claim, and concluded that Chapman had 

demonstrated the necessary benign intention. 

(Pet. App. 38a). Compare Pullman Standard 

V. Swint, 456 U.S. 273, 292 (1982); Lehman

- 26 -



- 27 -

T r o u t , 79 L.Ed.Zd 732 ( 1 984). Accord- 

ingly, the court of appeals directed that 

the claims against Chapman "in his official 

capacity" be dismissed. The court of 

appeals also ruled that the Magistrate had 

erred in refusing to consider in assessing 

damages the additional intangible injury 

suffered by petitioners because the assault 

at issue occurred under color or law. (Pet. 

App. 40a-44a). That part of its opinion, 

however, concerned only the amount of 

damages available against officer Allen. 

Allen, who never participated in the 

proceedings in the district court or court 

of appeals, is apparently judgment proof.

Petitioners sought review by this Court 

of the court of appeals' decision regarding 

the legal significance of a judgment against 

a municipal official in his "official c a p a ­

city," noting that the Sixth Circuit's 

opinion was in conflict with decisions of 

several other circuits. (Pet. 21-28).



- 28

SUMMARY QF ARGUMENT

Suits against a public officer in his or 

her official capacity have long been 

recognized as a method of suing the entity 

for which the official works. Rule 

25(d)(1), Federal Rules of Civil Procedure, 

provides for the automatic substitution of a 

new official who replaces an official being 

sued in his or her official capacity. If a 

judgment against a defendant in his official 

capacity imposes personal liability, then 

Rule 25(d)(1) would have the effect of 

imposing personal liability on a new 

official for the acts of his or her prede­

cessor. The Committee Note to Rule 25(d)(1) 

expressly states that such "official 

capacity" actions are "brought in form 

against a named officer, but intrinsically 

against the government." 3B Moore’s Federal 

Practice I 25.01[13].



This Court has on three separate 

occasions held that a monetary judgment 

against an official in his or her ’’official 

capacity" is to be paid by the entity for 

which he or she works. Monell v. New York 

City Department of Social Services. 436 U.S. 

658, 690 n. 55 ( 1 978 ); Owen v. City of 

I n d e n p e n d e n c e , 445 U.S. 622 , 638 n.18

(1980); Hutto v. F i n n e y . 437 U.S. 678, 693 

(1978).

This case was litigated, tried, and 

adjudicated as an action against the Memphis 

Director of Police in his official capacity. 

Petitioners made clear in a pleading filed 

19 months prior to trial that Director 

Chapman was sued only in his official 

capacity, and that any judgment would thus 

have to be paid by the city. At trial 

counsel for petitioners repeatedly reite­

rated that Chapman was sued only in his 

official capacity. The district c o u r t ’s 

Findings of Fact emphasized at three

- 29 -



different points that Chapman was being held 

liable only in his official capacity, and 

makes clear the understanding of the trial 

judge that the resulting judgment was a 

judgment against the city.

- 30 -

ARGUMENT

A Monetary Judgment Against A Public 
Official "In His Official Capacity" 
Imposes Liability on the Government 
Entity for Which the Office Works, 
Not on the Official Personally

The question presented by this case is 

whether a monetary judgment against a 

municipal official in his official capacity 

imposes liability on the official p e r s o n a l ­

ly, or on the government body for which the 

official works. If such a judgment is to be 

paid by the government entity, no good faith 

defense exists. Owen v. City of Indepen- 

dence, 445 U.S. 622 (1980). If the judgment 

runs against the personal funds of the named



31

official, he or she is entitled to assert 

the good faith defense recognized in Scheuer 

V. Rhodes, 416 U.S. 232 (1974).

The answer to that question is apparent 

on the face of Rule 25(d)(1), Federal Rules 

of Civil Procedure, which provides that when 

an official who is party to an action in his 

or her official capacity leaves office, his 

or her successor is automatically s u b s t i ­

tuted as a party. Similar provisions are to 

be found in Rule 43(c)(1) of the Federal 

Rules of Appellate Procedure and Supreme 

Court Rule 40.3.

If an action and judgment against a 

government employee in his or her official 

capacity imposed personal liability, then 

the effect of the automatic Rule 25(d)(1) 

substitution would be to make the successor 

official personally liable for the actions 

and torts of his or her predecessor, at 

least where the predecessor was the d e f e n ­

dant in a civil action at the time he or she



- 32

left office. In this case, for example, 

while the appeal was pending in the Sixth 

Circuit, John Holt replaced E. Winslow 

Chapman as Director of the Memphis Police 

Department, and by operation of Appellate 

Rule 43(c)(1) Holt was automatically 

substituted as the defendant-appellant. Had 

the defendant’s appeal been unsuccessful. 

Holt rather than Chapman would have been 

liable in his official capacity for the 

award of $26,21 0.75 in damages. It was 

certainly not the intent of either the 

framers of Rule 25(d)(1) or of the district 

judge in this case that Director Holt should 

be mulct in damages for an assault that 

occurred more than five years before he took 

office as Director.

The Committee Note accompanying the 1961 

revision of Rule 25(d) makes clear that a 

judgment against an official in his or her 

official capacity runs only against the 

entity for which he or she works. Such



official capacity lawsuits, the Note

observed, were "bought in form against a

named officer, but intrinsically against the
37

government." 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

one having official status, rather than one

who has lost that status and power through
38

ceasing to hold office." Rule 25(d) 

"official capacity" actions were by d e f i n i ­

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"; a 

plaintiff seeking such an award against an 

official to be paid "out of [his] own

- 33 -

Quoted in 3B Moore's Federal Practice,
1125.01 [13].  ̂ ------

^8 Id.



- 34 - 

39
pocket[]" is placed on notice that an award 

against the official "in his official 

capacity" imposes no such personal liabi­

lity.

This Court has three times 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 Monell v. New York Depart­

ment of Social S e r v i c e s , 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.

39 Id.



- 35

Because it regarded a suit against an 

official in his official capacity as a suit 

against the governmental entity for which he 

worked, the Court in Monel 1 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 I n d e p e n d e n c e , 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 signifi­
cantly 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 liability of the 
municipality itself is at issue, not 
that of its officers ,,, 445 U,S, 
638 n,18 (Emphasis added) ,



- 36

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 courts

of appeals have generally treated official
40

Capacity actions in the same manner.

In Hutto V. Finney, 437 U.S. 678 (1978), 

the court of appeals ordered the defendants, 

who were the Arkansas Commissioner of

Paxman v. Campbell, 612 F.2d 848, 856 (4th 
C i r . 1980); Campbell v. Bowlin, 724 F . 2d
4 84, 489 n.4 (5th Cir . 1984) ; Universal
Amusement Co. v. Hofheinz, 646 F .2d 996, 997 
(5th Cir. 1981); Van OoFeqhem v. Gray, 628 
F.2d 488, 496 ( 5th Cir. 1 9 8 0 ) ; ' 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); Kincaid v. Rusk, 670 F .2d 737, 742 
n.7 (7 th Cir. 1 982) ;~ N'ekolny v. Painter, 653 
F.2d 1 164, 1170 (7th Cir. 1981 ) ; Bertot v « 
School Dist. No. 1, Albany County, 613 F.2d 
24 5, 24 7 n .i (10th Cir. 19 1 9 ); Key v .
Rutherford, 645 F . 2d 880, 883 n.5 (10th Cir. 
198ll.



Correction and the members of the Arkansas 

Board of Correction, to pay the plaintiffs 

$2,500 in counsel fees. This Court c o m ­

mented:

- 37 -

The order does not expressly direct 
the Department of Correction to pay 
the award, but since [the d e f e n ­
dants] are sued in their official 
capacities, and since they are 
represented by the Attorney General, 
it is obvious that the award will be 
paid with state funds.

437 U.S. at 693. The effect of the award in

the instant case is equally clear.

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 capa- 
41

city." The Magistrate to whom the judge 

referred the calculation of damages noted



that the court had found Director Chapman

liable in his capacity as Director of the
42 . ^

Police Department. The district judge

clearly contemplated that the damages which

he had awarded would be paid by the city of

Memphis, not by Director Chapman personally.

Quoting this C o u r t ’s opinion Monell, Judge

Horton declared that an "official capacity

suit[] ... represent[s] only another way of

pleading an action against an entity of
43

which an officer is an agent.

The Sixth Circuit in reversing the 

district court judgment for petitioners 

assumed that an action and judgment against 

Chapman in his official capacity were as a 

matter of law an action and judgment against 

Chapman personally. (Pet. App. 39a). At 

the time of the Sixth Circuit's decision 

former Director Chapman, by operation of 

Appellate Rule 43(c)(1), was no longer even

- 38 -

41 Pet. App. la, 16a, 25a.
42 j.A. 21a.
4^ Pet. App. 16a.



a party to the appeal, having been replaced 

by Director Holt. The decision of the court 

of appeals is clearly in conflict with both 

the federal rules and the decisions of this 

Court.

- 39 -

CONCLUSION

For the foregoing reasons the judgment 

and opinion of the court of appeals should 

be reversed.

Respectfully submitted,

ELIZABETH A. McKANNA 
686 W. Clover Drive 
Memphis, TN 3819

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

WILLIAM E. CALDWELL 
P.O. Box 60998 
Fairbanks, Alaska 99706



- 40 -

3. LeVONNE CHAMBERS 
ERIC SCHNAPPER *

NAACP Legal Defense & 
Educational Fund, Inc 
16th Floor 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

Counsel for Petitioners
I ■  ^  ........ ................................... . I H I I I l  .................... .. ■  i m w i

* Counsel of Record



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