Tuttle v. Oklahoma City Court Opinion

    456 728 FEDERAL REPORTER. 2d SERIES

enough. A liberty interest is implicated 
only when his ability to obtain other em­
ployment is damaged.

[6] The trial court properly determined 
that inferences drawn from a dismissal 
alone are not sufficient to implicate a liber­
ty interest. The statement must be such as 
to harm the honor and integrity of the 
person discharged. Bishop v. Wood, 426
U. S. 341, 348, 96 S.Ct. 2074, 2079; McGhee
V. Draper, 10 Cir., 564 F.2d 902, 912. The 
single statement cited by plaintiff stigma­
tized him no more than the dismissal itself. 
His liberty interests were not impaired.

Affirmed.

( o  I  KEY NUMBER SrSTEHl
. T .

Rose Marie TUTTLE. Individually and as 
Administratrix of the Estate of William 
Adam Tuttle, Deceased, Plaintiff-Appel­
lee and Cross-Appellant.

V.

CIT  ̂ OF OKLAHOMA CITL. a Municipal 
Corporation; and Officer Julian Rotra- 
mel. Individually and as an Employee of 
the City of Oklahoma City through the 
Oklahoma City Police Department, De- 
fendants-Appellants and Cross-Appel­
lees.

Nos. 82-2)64, 82-2175.

United States Court of Appeals,
Tenth Circuit.

Feb. 28, 1984.

Widow of man shot by police officer 
brought action against city and police offi­
cer alleging deprivation of her husband's 
statutory and constitutional rights to life 
and liberty. The United Stales District 
C-ourt for the Western District of Oklahc-- 
ma. Lee R, 'West, J., entered judgment in 
favor of plaintiff and against city, but not

against police officer, and appieals were tak­
en. The Cxiurt of Appeals, William E. 
Doyle, Circuit Judge, held that: (1) evi­
dence was sufficient to submit police offi­
cer’s good-faith defense to the jury: (2) 
evidence was sufficient to submit to jury- 
issue whether city was negligent in its 
training of police officers; and (3) liability 
of city for shooting by police officer could 
be based only on training and supervision 
arising out of a single incident.

Affirmed.
Barrett, Circuit Judge, concurred spe­

cially and filed opinion.

1. Civil Rights 13.12(4)
An officer s good faith is not an abso­

lute defense to charges arising from shoot­
ing of citizen; it is an affirmative defense 
that must be pleaded and proved by defend­
ant officer.

2. Civil Rights e=> 13.14
If facts construed in light most favor­

able to defendant police officer utterly belie 
his belief or the reasonableness of it, his 
defense of good faith in action arising from 
shooting of citizen should not be considered 
by jury.

3. Federal Civil Procedure g=2174
Jury instructions on an affirmative de­

fense should be given only if reasonably- 
supported by the evidence.
4. Civil Rights 13.14

Since there was some evidence that po­
lice officer, defendant in action brought to 
recover for deprivation of plaintiff's de­
ceased husband's statutory and constitu­
tional rights to life and liberty when dece­
dent was shot by officer. reasonaPly be­
lieved that his life w-as threatened by dece­
dent and that his actions v-ere justified, 
trial court prop>erly allowed issue of offi­
cer's good faith to go u. the jurv.
5. Civil Rights «= 13.14

In action brought against city and oo- 
lice officer to recover for deprivation of 
plaintiff s deceased husiiand s statutory and 
constitutional rights to life and lihertv



TUTTLE V. CITY OF OKLAHOMA CITY
c i te  as 728 F.2d 456 (1984)

> were tak- 
Villiam E.

(1) evi- 
police offi- 

jury; (2) 
lit to jury 
ent in its 
(3) liability 
■ficer could 
supervision

:urred sp>e-

ot an abso- 
from shoot- 
ive defense 
bv defend-

most favor- 
jtterly belie 
,s of it, his 
irising from 
j considered

>174
irmative de- 

reasonablv

nee that po- 
I brought to 
aintiff's de- 
id constitu- 
when decv- 

isonably be- 
led iiy dect- 
ro justifiea. 
;sufr of offi- 
rv.

city and po- 
pnvation of 
tatutorv and 
and libtrtv

when decedent was shot by police officer, 
evidence was sufficient to submit to jury 
issue whether city was negligent in its 
training of police officers.
6. Civil Rights 13.14

In action brought against city and po­
lice officer to recover for deprivation of 
plaintiffs deceased husband’s statutory and 
constitutional rights to life and liberty 
when he ŵ as shot by police officer, instruc­
tion to jury that it could find for plaintiff 
based upon a single incident of use of force, 
from which jury could infer inadequate 
training of officers by city, was proper and 
instructions, taken as a whole, properly 
stated law of municipal liability and affirm­
ative defenses.
7. Civil Rights ©=>13.14

Contrary to contention of city, defend­
ant in action against city and police officer 
to recover for deprivation of plaintiff s de­
ceased husband’s statutory and constitu­
tional rights to life and liberty when he was 
shot by police officer, trial court properly- 
required proof of city’s gross negligence in 
training police officer.
8. Civil Rights ©=13.7

City could be held liable for deprivation 
of plaintiff’s deceased husband’s statutory 
and constitutional rights to life and liberty 
when he was shot by police officer based 
only on training and supervision arising out 
of a single incident.

way, Hughes, Nelson & Gassaway, Oklaho­
ma" City, Okl., with him on brief), for plain­
tiff-appellee and cross-appellant Rose Marie 
Tuttle.

Burck Bailey, Fellers, Snider, Blanken­
ship, Bailev & Tippens, Oklahoma City, Okl. 
(Warren F. Bickford IV and Margaret 
McMorrow-Love, Fellers, Snider, Blanken­
ship, Bailey & Tippens, Oklahoma City, 
Okl, with him on brief), for defendant-ap­
pellant, cross-appellee City of Oklahoma
Citv.

Before BARRETT, DOYLE and SEY­
MOUR, Circuit Judges.

Robert E, Manchester, McClelland, Col­
lins, Bailey. Bailey & Manchester, Oklaho­
ma City, Okl. (Susan Talbot, McClelland, 
Collins, Bailey, Bailey & Manchester, Okla­
homa City. Okl, with him on brief), for 
defendant"-appellar.t, cross-appellee Officer 
Julian Rotramel

Michael C. Turpen, Atty. Gen. of Okl, 
David W. Lee, Ass:. Atty Gen.. Chief, Fed­
eral Div., Oklahoma City. Okl, for amicus 
curiae State of Okl

Diane Pedicord. Oklahoma City, Okl, fo’- 
am.icus curiae Oklahoma Mun. League.

Carl Hughes, Hughes, Nelson & Gassa­
way, Oklahoma City, Okl. (Michael Gassa-

WILLIAM E. DOYLE, Circuit Judge.
This matter is before us pursuant to 28 

U.S.C. § 1291, the regular appeals statute, 
and 42 U.S.C. § 1983. dealing with the vio­
lation of constitutional and statutory rights.

Rose Marie Tuttle was the plaintiff in the 
court below. She brought this action 
against the defendants, Oklahoma City and 
Police Officer Julian Rotramel, individually 
and as administratrix of the estate of her 
deceased husband. She alleged deprivation 
of her husband’s statutory and constitution­
al rights to life and liberty, contrary to 42 
U.S.C. § 1983.

The cause was tried to a jury in the 
United States District Court for the West­
ern District of Oklahoma. A verdict was 
returned in favor of Mrs. Tuttle in the 
amount of $1,500,000 actual damages 
against the City. The jury returned a ver­
dict in favor of the defendant Rotramel, the 
officer who caused the damage by shooting 
and killing Tuttle. The jury found in favor 
of Officer Rotramel because the jury found 
that he acted in good faith. Oklahoma City 
has appealed the verdict against it and Mrs. 
Tuttle appeals the verdict and order to pay- 
costs for Rotramel tne police officer.

This incident took place on October 4. 
1930. T'ne decedent William Tuttle was 
inside, and had been inside, tne Me’ll Do 
Club in Oklahoma City. A complaint was 
made reporting an armed robbery in 
progress at the We'll Do Club. The party



458 72S FEDERAL REPORTER. 2d SERIES

who called the police described the alleged 
robber as a 37 year old male with brown 
hair and glasses. The description matched 
Mr. Tuttle, and the parties stipulated that 
Mr. Tuttle actually made the call. Police 
Officer Julian Rotramel was dispatched to 
the Club, and when he arrived there was no 
armed robbery in progress. The bartender 
testified that she informed Rotramel that 
no robbery had occurred. Decedent at­
tempted to leave the Club, and Officer Ro­
tramel told him to stay where he was. De­
cedent disregarded Rotramel and left. Tut­
tle did not at any time brandish a weapon. 
In fact, Tuttle made no overt threat. 
Nevertheless, Officer Rotramel drew his 
gun and shot the decedent in the back. The 
latter was a short distance from the officer 
and had gone down on one knee. No w'eap- 
on was found on the decedent; there was 
allegedly a toy gun which was said to have 
been found in Tuttle’s possession. This was 
not visible to the officer, but he said that he 
was apprehensive that the decedent had a 
weapon. Decedent died from the gunshot 
wound verv soon after the incident.

A limited number of contentions have 
been asserted in support of the requested 
reversal. These are set forth and also dis­
cussed below.

1. The contention that the trial court 
erred as a result of not directing a 
verdict against Rotramel on the issue of 
liability.

Mrs. Tuttle argues that the facts of the 
case fail to supfjort Rotramel's claim of 
good faith, and hence the trial court should 
not have allowed the issue to go to the jury. 
We here address this issue.

The good faith defense of police officers 
charged with constitutional violations was 
first recognized by the Supreme Court in 
Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 
1213. 1217-18, 18 L.Ed.2d 288 (1967). In its 
most recent pronouncement on the good faith 
defense, the Supreme Court made clear that 
an officer's good faith must be judged by 
an objective standard. Harlow v. Fitzger­
ald. 457 U.S. 800. 818. 102 S.Ct, 2727, 2738- 
9, 73 L.Ec.2d 396 (1982j (government offi­

cials “are shielded from liability for civil 
damages insofar as their conduct does not 
violate clearly established statutory or con­
stitutional rights of which a reasonable per­
son would have known”). Harlow reaf­
firmed the objective standard previously 
applied, but overruled earlier Supreme 
Court pronouncements that a subjective 
component existed as w’ell. See Wood i-. 
Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 
1000-01, 43 L,Ed.2d 214 (1975) (“A school 
board member is not immune from liability 
for damages under § 1983 if he knew or 
reasonably should have known that the ac­
tion he took within his sphere of official 
responsibility would violate the constitu­
tional rights . . of the student”); Scheuer 
V. Rhodes. 416 U.S. 232, 247-48, 94 S.Ct. 
1683, 1691-92. 40 L,Ed,2d 90 (1974) (“It is 
the existence of reasonable grounds for the 
belief formed at the time and in light of all 
the circumstances, coupled with the good 
faith belief, that affords a basis for quali­
fied immunity"): Pierson v. Ray, 386 U.S. 
at 557, 87 S.Ct. at 1219 ("If the jury found 
that the officer reasonably believed in good 
faith that the arrest was constitutional, 
then a verdict for the officers would follow, 
even though the arrest was, in fact, uncon­
stitutional”).

[1] An officer’s good faith is not an 
absolute defense to charges; it is an affirm­
ative defense that must be pleaded and 
proved by the defendant officer. See Go­
mez Toledo, 446 U.S. 635. 100 S.Ct. 1920, 
64 L.Ed.2d 572; Martin Duffic, 463 F.2d 
464 , 468 (10th Cir.1972).

[2. 3] Under certain circumstances, the 
facts may negate the good faith defense as 
a matter of law. If the facts construed in 
the light most favorable to the defendant 
officer utterly belie his belief or the reason­
ableness of it, his defense should not be 
considered by the jury. Butler v. Goldblatt 
Bros., Inc., 589 F.2d 323, 326 (7th Cir.1978). 
Jury instructions on an affirmative defense 
should only be giver if reasonably sup­
ported by the evidence

[4] Defendant Rotramel aamitted at t r i ­
al that he violated Police Department policy

: [■.ft .



TUTTLE V. CITY OF OKLAHOMA CITY
Cite as 728 F.2d 456 (1984)

liability for civil 
conduct does not 
statutory or con- 
a reasonable per- 
). Harlow reaf- 
ndard previously 
earlier Supreme 
hat a subjective 
dl. See Wood v. 
322, 95 S.Ct. 992, 
(1975) (“A school 
lune from liability 
83 if he knew or 
nown that the ac- 
sphere of official 
late the constitu- 
tudent”); Scheuer 
, 247-48. 94 S.Ct. 
d 90 (1974) (“It is 
)le grounds for the 
I and in light of all 
led with the good 
i a basis for quali- 
n  V. Ray. 386 U.S. 
;"lf the jury found 
)ly believed in good 
was constitutional, 
ficers would follow, 
(cas. in fact, uncon-

)d faith is not an 
ges; it is an affirm- 
st be pleaded and 
it officer. See Go- 
635. 100 S.Ct. 1920, 
1'. Duffit, 463 F.2d

circumstances, the 
ood faith defense as 
e facts construed in 
le to the defendant 
belief or the reason- 
'en.se should not be 

Butler 1'. Goldblatt 
3, 326 (7th Cir.1978). 
affirmative defense 
if reasonably sui>-

amel admitted at tri­
ce Department policy

in shooting Mr. Tuttle. He testified how­
ever, that he believed Mr. Tuttle was a 
felon reaching for a gun. His belief was 
supported by some evidence. Officer Ro- 
tramel was responding to a report 
robberv had taken place. Apparently, Mr 
Tuttle'made the report, describing himself 
and reporting that the robber had a gun. 
Officer Rotramel testified that he attempt­
ed to stop Mr. Tuttle, that a struggle had 
ensued and that Mr. Tuttle repeatedly- 
reached for his boot. Officer Rotramel 
claimed that Mr. Tuttle broke away and 
was again reaching for his boot, apparently- 
retrieving a weapon, when Officer Rotra­
mel shot him. The other witnesses to the 
shooting disputed these aspects of Rotra- 
mel’s testimony. If the jury believed Offi­
cer Rotramel, however, it could find that he 
reasonably believed his response was per­
mitted.

The trial court clearly thought the evi­
dence was sufficient to send the issue to the 
jury, and the jury apparently believed Offi­
cer Rotramel’s story. Inasmuch as the jury 
was properly instructed and since there is 
evidence which favors Rotramel, we cannot 
assume that the conclusion was improper. 
It is not enough that Officer Rotramel s 
good faith defense does not seem to be 
stronglv supported in this case; we mus  ̂
decline'to rule that it was inadequate as a 
matter of law. There was some evidence 
that he reasonablv believed that his life w as 
threatened and his actions were justified. 
Accordingly, we affirm the jury’s 
that Officer Rotramel acted in good faith 
and thus deny the contention of Mrs. Tut­
tle.

erate indifference. The argument is also 
that a single incident of police misconduct 
cannot establish grossly negligent training, 
and that, in light of the single incident here, 
the trial court should have granted the 
City’s motion for a directed verdict and for 
judgment notwithstanding the verdict.

2. The contention of the City that the 
evidence was insufficient to justify sub­
mission to the jury.

The City- insists that the trial court erred 
in denying the defendant City’s motions for 
a directed verdict and judgment notwith­
standing the verdict. lUs claim is that the 
trial judge held the City to a sUndarcl o. 
ordinan negligence in failing to train U.ii- 
ce-- Rotramel. rather than the allegedly re­
quired showing of gross negligence or delib-

[5] The plaintiff-appellee Mrs. Tuttle 
argues that extensive evidence, and not the 
single incident referred to, established the 
grossly negligent training provided by the 
City. ' She argues that virtually all of the 
evidence established the necessary link be­
tween the inadequate training and the con­
stitutional deprivation. Owens v. Haas, 601 
F.2d VM2 (2d Cir.1979). She claims tnat 
the trial judge recognized that gross negli­
gence existed if the City had actual or 
imputed knowledge of the almost inevitable 
consequences that arise from completely in­
adequate training or supervision. See Leite 
V. City of Providence, 463 F.Supji. 585, 590- 
91 (D R 1.1978). We agree that Judge W est 
properly denied the City’s motions and 
properly submitted the issue to the jury.

3 Appellant’s further contentions that the 
Judge's instructions to the jury were 
erroneous and that the judgment should 
be set aside because of these alleged 
error or errors.

[6] The argument of the City, taken as 
a whole, is that the jury instructions did not 
articulate the law governing the case. Par­
ticularly, the City challenges the instruction 
to the jury that it could find for the plain­
tiff based upon a single incident of the use 
of force, from which the jury could infer 
inadequate training. The plaintiff-appel­
lee, Mrs. Tuttle, contends that the sufficien­
cy of the instructions is not usually to be 
determined by error in any single instruc­
tion but rather by viewing the charge as a 
whole. United States v. Jenkins. 701 F.2d 
8,50 (10th Cir.l983i. Ŵe regard the chal­
lenged instruction to be projier, and we 
consider that tne instructions, taken as a 
whole proyieriv state the lau of municipa, 
liability and affirmative defenses. Apart 
from the killing incident, there was ade-



460 728 FEDERAL REPORTER, 2d SERIES

quate evidence. Even the officer admitted 
the inadequacy of the training.

There was much complaint on the part of 
the City to the effect that the standard of 
wrong-doing submitted by the court was 
that of ordinary negligence. However, the 
instructions given do not agree with this. 
The instruction which addresses the applica­
ble standard of gross negligence and other 
elements of the claim is as follows:

You are instructed that the City of 
Oklahoma City is not liable for the depri­
vation of the decedent’s constitutional 
rights solely because it hired and em- 
ploj'ed the defendant Rotramel. But 
there are circumstances under which a 
city is liable for a deprivation of a consti­
tutional right. Where the official policy 
of the city causes an employee of the city 
to deprive a person of such rights in the 
execution of that policy, the city may be 
liable.

This occurs when a city implicitly or 
tacitly authorizes, sanctions, ratifies, or 
acquiesces in the constitutional depriva­
tion in such a manner that such constitu­
tional deprivation can be found to result 
from the execution of a city’s official 
policy or custom.

In the circumstances of the case before 
you, the City of Oklahoma City can be 
found to have authorized, sanctioned, or 
acquiesced in any denial of the decedent's 
rights only if an official policy which 
results in constitutional deprivations can 
be inferred from acts or omissions of su­
pervisory city officials and if that policy 
was a proximate cause of the denial of 
the civil rights of the decedent.

It is the plaintiff's contention that such 
a policy existed and she relies upon alle­
gations that the City is grossly negligent 
in training of police officers, in its failure 
to supervise police officers, and in its 
failure to review and discipline its offi­
cers. The plaintiff has alleged that the 
failure of the city to adequately suf>er- 
vise, train, review, and discipline the po­
lice officers constitutes deliberate indif­
ference to the constitutional rights of tne 
decedent and acquiescence in the proba­

bility of serious police misconduct. Fur­
thermore, the policy of placing police offi­
cers on duty who were inexperienced and 
unqualified to act in a particular situa­
tion in applying the use of a deadly weap­
on constitutes deliberate indifference to 
the rights of the decedent.

The City, of course, has denied the 
plaintiff’s allegations and further denies 
the existence of an official policy of the 
City of Oklahoma City which results in 
constitutional deprivations.

The existence of such a policy is a 
question of fact for you to determine. 
The policy, if it existed, need not be ex­
pressed in writing; it may be an implicit 
policy. An official policy can be inferred 
from the acts of a municipality’s supervi­
sory officials, as well as from its omis­
sions, if the inaction amounts to deliber­
ate indifference or to tacit approval of an 
offensive act. (Emphasis supplied.)
[7] Contrary to the present contention 

of appellant, the trial judge, in outlining 
the standard, required proof of the City’s 
gross negligence. The jury was told that 
inadequate training of Rotramel amounting 
to gross negligence and deliberate indiffer­
ence to the rights of the decedent was nec­
essary in order to deprive the decedent of 
his right to liberty and life without due 
process. In other words, the gross negli­
gence standard was plainly set forth as it 
pertains to the civil rights claim under 
§ 1983.

The instructions were not erroneous. 
The gross negligence-indifference standard 
was sufficient as instructed. As a result 
the court was correct in denying dismissal 
relief to the City.

4, The appellant City's argument that the 
alleged lia’nility of the City is based only 
on training and supervision arising out 
of a single incident.

The city cites case law in support of ihe 
doctrine that a single incident is not ade­
quate evidence to establish liability for in­
adequate training and supervision. McClel­
land V. Facteau. 61(i F.2d 693. 696 (10th 
Cir.1979). There it is noted that a police



TUTTLE V. CITY OF OKLAHOMA CITY
c i te  as 728 F.2d 456 (1984)

duct. Fur- 
: police offi- 
rienced and 
cular situa- 
eadly weap- 
if fere nee to

denied the 
rther denies 
)olicy of the 
;h results in

policy is a 
I determine, 
f not be ex- 
e an implicit 
) be inferred 
ity’s supervi- 
3m its omis- 
:s to deliber- 
jproval of an 
pplied.)
It contention 
in outlining 

of the City’s 
cas told that 
el amounting 
rate indiffer- 
lent was nec- 
; decedent of 
without due 

; gross negli- 
et forth as it 

claim under

T o n e o u s .  

standard 
a result 
dismissal

iment that the 
‘y is based only 
ion arising out

support of the 
jnt is not ade- 
liability for in­
cision. McCIei- 
693, 696 noth 
d tnai a police

chief could be held liable if he neglected his 
duty to train subordinates and establish de­
partment procedures. He must provide 
protection for constitutional rights and su­
pervision to correct misconduct of which he 
has notice. The showing that the individual 
police officer may have violated the law on 
an isolated occasion was said not to be 
sufficient to raise an issue of fact for pur­
poses of imposing liability on police chiefs 
for failure to train subordinates and estab­
lish department procedures that would pro­
vide protection for constitutional rights. 
The court added that there was a genuine 
issue of material fact as to whether defend­
ant jxiliee chiefs violated the duty of super­
vision to correct misconduct of which they 
had notice.

[8] Although the McClelland case is 
entirely different from the case at bar, 
involving as it does police chiefs failing to 
supervise, the principle is much more diffi­
cult to establish than the violation here. 
The act here was so plainly and grossly 
negligent that it spoke out very positively 
on the issue of lack of training, the prob­
lem which is presented. We are not to be 
understood as holding that there exists a 
guarantee that all persons whose constitu­
tional rights are violated by municipal em­
ployees will recover from the City. Our 
holding requires proof of a city s violation 
of its duty such as to constitute deliberate 
indifference to the rights of its citizens. 
Here there was plenty of independent proof 
of lack of actual training. In this case the 
individual defendant had been on the police 
force for a very short period of time: more­
over, he admitted his lack of training to 
cope w’ith robberies. Nevertheless, he was 
allowed to go in on a suspected robbery by 
himself. Also, his gross failure to success­
fully handle the problem clearly demon­
strated his complete lack of training and 
also his lack of ability. Thus, the incident 
itself, as well as independent evidence, at­
tested to the officer's lack of knowledge 
and abiln\. He claims to have considered 
Tuttle to be a robber but instead of pursu­
ing him. for the purpose of questioning, he 
fatally shot him without the least justifia­
ble provocation. Tne single incident rule is

not to be considered as an absolute where 
the circumstances plainly show a complete 
lack of training.

Our conclusion must be that this action, 
coupled with the clearly inadequate train­
ing, demonstrate the City’s gross negligence 
and deliberate indifference to the rights of 
the decedent.

5. The Damages Requested by Plaintiff
The plaintiff has sought on behalf of the 

estate and herself the following damages 
from the defendants, jointly and separately. 
The trial court described the plaintiff’s al­
leged damages as follows:

$2,134.65 for burial expenses;
$984.60 for hospital and medical ex- 
penses;
$55,000.00 for loss of consortium and 
grief as the surviving spouse;
$2,000,000.00 for mental anguish and 
physical pain suffered by the decedent 
prior to his death;
$455,000.00 for pecuniary loss, namely 
loss of future earnings of the decedent, 
and,
$250,000.00 for grief and loss of compan­
ionship of the children.
The plaintiff also sought $1,500,000.00 in 

punitive damages from the defendant Ro- 
tramel.

We have called attention to the numbers 
w’hich w-ere contained in the complaint of 
the plaintiff and which the judge men­
tioned in his instructions for the purposes of 
explaining, in part at least, how the jury 
arrived at the verdict returned. This court 
is not in a favorable position to issue a 
remittitur with respect to these damages.

The judgment of the district court should 
be and the same is hereby affirmed.

BARRETT, Circuit Judge, concu.'-ring:
I concur liecause 1 am coni inced the trial 

court properly and aaequateh instructed 
the iur>. Even so. I am at a loss t<> 
ascertain tne basis for the jury's obvious 
finding that Officer Rotrame! was so lack­
ing in training to coiie- with robberies that

u

!

I
f
9



462 728 FEDERAL REPORTER, 2d SERIES

Di

!li

m

such constituted proof of Oklahoma City’s 
violation of its duty to train Officer Rotra- 
mel to the extent that, as the opinion pin­
points it, it amounted to Oklahoma City’s 
“deliberate indifference to the rights of its 
citizens.”

I have not been able to ascertain what 
facts the jury relied on to render Officer 
Rotramel’s actions unreasonable. The fac­
tual background, as I view it, consists of the 
false call placed by Mr, Tuttle about the 
robber}’ at the Club involving an armed 
jjerson who met his description. Officer Ro- 
tramel s immediate confrontation with Mr. 
Tuttle upon entering the Club, Rotramel’s 
identification of Tuttle as the reported arm­
ed robber, Rotramel’s testimony that he 
saw Tuttle reach down at w’hich time Tuttle 
was ordered to stay put, Tuttle’s hurried 
exit from the Club in the darkne.ss with 
Officer Rotramel in pursuit, the fatal shoot­
ing by Rotramel when he observed Tuttle 
bent down near a vehicle and reaching for 
that which Rotramel believed to be a gun, 
and finally the discovery of a toy pistol on 
Mr. Tuttle’s person following the shooting. 
Beyond this, I have not been enlightened 
with the factual basis of Oklahoma City’s 
“deliberate indifference” in the context of 
the facts of this case.

I  KEY NUMBER S Y S T ty ' 
. T . — ---------------'

Dr. Bruce HOLMAN; Audrey B. 
Holman, Plaintiffs-Appellants,

V.

UNITED STATES of America, 
Defendant-Appellee.

No. 83-1528.
United States Court of Appeals, 

Tenth Circuit.
Submitted on the Briefs Pursuant to 

Tenth Circuit Rule 9.
Decided Feb. 29, 1984.

Taxpayers brought suit for refund of 
overpayment of taxes. The United States

District Court for the District of Colorado, 
Sherman G. Finesilver, Chief Judge, grant­
ed summary judgment in favor of Govern­
ment, and taxpayers appealed. The Court 
of Appeals held that: (1) taxpayers were 
properly taxed on income conveyed to trust 
under assignment-of-income doctrine and 
grantor-trust provisions; (2) taxpayers 
were not entitled to deduction for cost of 
materials and forms which enabled them to 
set up family trust; and (3) taxpayers were 
properly assessed five percent negligence 
penalty.

Affirmed.

1. Internal Revenue c=4024
Taxpayers were properly taxed under 

assignment-of-income doctrine and “grant­
or trust provisions on income conveyed to 
“family trust,” where trust was mere sham, 
lacking any economic substance, and it was 
inconceivable that grantor’s wife would be 
motivated to [)revent income from being 
distributed or held for her benefit, and 
therefore she could not be adverse party as 
to her husband. 26 U.S.C.A. §§ 67U679.

2. Internal Revenue c=3363
Taxpayers were not entitled to deduc­

tion for cost of materials and forms which 
enabled them to set uji family trust. 26 
U.S.C.A. §§ 162, 212, 262.

3. Internal Revenue <s=.5233
Taxpayer has burden to show absence 

of negligence in underpaying taxes owed.

4. Internal Revenue g=>5235
Taxpayers were properly assessed five 

percent negligence jKmalty, in light of find­
ings that taxpayers, who had been advised 
prior to the filing of their tax return that 
family trust would not be recognized for 
income tax purposes, had not met their 
burden of showing absence of negligence.

Dr. Bruce Holman, pro se.