Brandon v. Holt Brief for Petitioners

    No. 83-1622

I n  t h e

fbupumt Ghmrt ctf Xtyt Hmftft î tato
O ctober 'Teem , 1984

E lizabeth  B randon , et al.,

v.
Petitioners,

J oh n  D. H olt, etc., et at.,
Respondents.

ON W RIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR TH E SIXTH CIRCUIT

BRIEF FOR PETITIONERS

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

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

W il l ia m  E . Caldw ell  
P.O. Box 60996 
Fairbanks, Alaska 99706

J. L eV onne  'Cham bers
E ric S ch n apper*

"NT A A'CP 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



1

QUESTION PRESENTED

Did the Court of Appeals err in holding

that a monetary j u d gment under Rule 25(d),

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

official capacity" i m p oses p e r s o n a l  l iabi-
1

lity on the official?

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



11

TABLE OF CONTENTS

Page

Question Presented ..........   i

Table of Authorities .............. iii

Opinions Below .........................  1

Jurisdiction ...................... 2

Rules Involved ........  3

Statement of the Case ............. 4

(1) The Assault on Peti­
tioners Brandon and
Muse ..............   4

(2) The Policies of the City
of Memphis ..................  7

(3) The Proceedings Below .... 18

Summary of Argument ...... ........... 28

Argument .......................... 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 ................................ . . 30

Conclusion 39



ill

TABLE OF AUTHORITIES

Cases Pa(3e

Bertot v. School District No, 1,
Albany County, 613 F.2d 245
(10th C i r . 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
(10th Cir. 1981 ) ................ . . 36

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

Lehman v. Trout, 79 L .E d .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 C i r . 1981 ) ...................  36

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



IV

Cases Page

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

30, 3 5 , 3 6

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 IKS* 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 8 01(2)(D), Federal Rules of
Evidence .................... . 22

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

Other Authorities

28 U.S.C. § 1234(1 ) ....----..._____ 2

38 Moore's Federal Practice
1 25.01[13] .................... 28,33



1

NO. 83-1622

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1984

ELIZABETH BRANDON, et a l .,

Petitioners,

v .

JOHN D. HOLT, etc., e_t al . ,

R espondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

BRIEF FOR PETITIONERS

OPINIONS BELOW

The d e c i s i o n  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.



2

The order d e n y i n g  r e h e a r i n g ,  which is not 

reported, is set out at Petition Appendix p. 

44a. The d i s t r i c t  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.

JURISDICTION

The judgment of the court of appeals was 

e n t ered on O c tober 11, 1983. A timely 

petit ion for rehearing was filed, which was 

denied on December 2, 1983. On February 22, 

1984, J u stice O ' C onnor g r a n t e d  an order 

extending the date on which the petition for 

writ of c e r t i o r a r i  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. J u r i s d i c t i o n  of 

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

1254(1).



3

RULES INVOLVED

Rule 25(d), Federal Rules of Civil 

Procedure, provides?

(d ) P ublic O f f i c e r s  ; Death or Separa-
tion from Office— ...............1

(1) When a p ublic o f ficer is a 
party to an action in his o f f i c i a l  
c a p a c i t y  and during its pendency dies, 
resigns, or o t h e r w i s e  c e a s e s  to hold 
office, the action does not abate and 
his successor is a u t o m a t i c a l l y  s u b s t i ­
tuted as a party. Proceedings following 
the substitution shall be in the name of 
the s u b s t i t u t e d  party, but any misnomer 
not affecting the substantial rights of 
the p a r t i e s  shall be d i s r e g a r d e d .  An 
order of substitution may be e n t e r e d  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 p u blic officer sues or 
is sued in his official capacity, he may 
be d e s c r i b e d  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 A p p e l ­

late Procedure , provides:

(c ) P u blic O f f icers ; Death or Separa- 
tion from Office



4

(1) When a p u b l i c  o f f i c e r  is a 
party to any appeal or other p r o c e e d i n g  
in the court of appeals in his official 
capacity and d u r i n g  its p e n d e n c y  dies , 
r e s i g n s  or o t h e r w i s e  c e a s e s  to hold 
o f f i c e s the action does not abate and 
his s u c c e s s o r  is a u t o m a t i c a l l y  substi­
tuted as a party. Proceedings following 
the s u b s t i t u t i o n  shall not be in the 
name of the s u b s t i t u t e d  p arty , but any 
m i s n o m e r  not a f f e c t i n g  the substantial 
r ights of the p a r t i e s  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 p r o c e e d i n g  here in his o f f i c i a l  
capacity and d u r i n g  its p e n d e n c y  dies, 
r e s i g n s  , or o t h e r w i s e  c e a s e s  to hold 
office, the action does not abate and 
his s u c c e s s o r  is a u tomat ically substi­
tuted as a p a r t y . Proceedings following 
the substitution shall be in the name of 
the substituted party, but any m i s n o m e r  
not a f f e c t i n g  the substantial rights of 
the p a r t i e s  shall be d i s r e g a r d e d .  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 A s sault on Petitioners Brandon 
and Muse



5

The e v e n t s  which gave rise to this 

litigation occurred on the night of March 5, 

1977. P e t i t i o n e r s  E l i z a b e t h  B r andon and 

James Muse, both high school students, went 

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

ing dinner and several h ours at a high 

school dance, they drove to a s e c l u d e d  

street known as Shady Grove and, as young 

couples are wont to do, p a r k e d  there. 

A p p r o x i m a t e l y  half an hour later M e m phis 

Police Officer Robert Allen a p p r o a c h e d  the 

car. E x p r e s s l y  i d e n t i f y i n g  h i m s e l f  as a 

Memphis City police officer, and d i s p l a y i n g  

his police i d e n t i f i c a t i o n  card, Allen 

ordered Muse to step out of the car. After 

b r i e f l y  q u e s t i o n i n g  Muse, o f f i c e r  Allen 

m a l i c i o u s l y ,  and w i t h o u t  p r o v o c a t i o n  

a s s a u l t e d  Muse with a knife, s l a s h i n g  his 

throat from ear to ear. When Officer Allen 

tried to break into the car where Ms. 

Brandon was seated, Muse, d e s p i t e  his



6

i n j u r i e s ,  j u m p e d  in the d r i v e r ' s  side and 

quickly drove away. Officer Allen then drew 

his service revolver and shot at the fleeing 

couple. The b ullet s h a t t e r e d  a w i n d o w  in 

the car and s t r u c k  B r a n d o n  in the face. 

Allen r e t u r n e d  to his own v e h i c l e  and 

p u r s u e d  B r a n d o n  and Muse, r e p e a t e d l y  

attempting to run their car off the r o a d .

With o f f i c e r  Allen in hot pursuit , 

Brandon and Muse fled to a local h o s p i t a l  , 

where both p e t i t i o n e r s  were t r eated for 

i n j u r i e s  s u s t a i n e d  in the assault and 

s h o o t i n g  . Muse r e q u i r e d  s u r g e r y  for his 

wounds , and was p e r m a n e n t l y  d i s f i g u r e d .  

Neither B r a n d o n  nor Muse were ever charged 

with or s u s p e c t e d  of any o f f e n s e  ; Officer



7

Allen was ultimately indicted and convicted

of assault with intent to murder in c o n n e c -
2

tion with this incident*

(2) The Policies of the City of Memphis

The o f f i c e r  who a s s a u l t e d  petitioners, 

the d i s t r i c t  court c o n c l u d e d ,  was an 

" o b v i o u s l y  d a n g e r o u s  man" whose "dangerous 

p r o p e n s i t i e s  were w idely known among 

o f f i c e r s  of the D e p a r t m e n t "  prior to the 

attack of March 5, 1977. (Pet. A p p . 24, 26, 

27). The district court noted:

Allen's reputation as a "mental 
case" was w i d e s p r e a d  among the 
o f f i c e r s .  Because none of the 
officers wished to ride in the same 
squad car with officer Allen, he was 
f r e q u e n t l y  r e l e g a t e d  to ride by 
himself.-^

2 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, 
31 a - 3 2 a . The t e s t i m o n y  of p e t i t i o n e r s  
concerning this incident is at pages 10-55 
of the trial transcript.

3 Pet. App. 9a. see also T r . 147 (refused to 
ride with Allen; "mental case"), 156 
(refusal to ride with Allen, "mental case") , 
161 (refusal to ride with Allen).



8

Among the statements made by A l l e n ’s fellow 

o f f i c e r s  f o l l o w i n g  the a s s a u l t  on p e t i ­

t i oners were "they f i n a l l y  c aught 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 Co mmander of the

Special Operations Bureau described Allen as
6

"a walking time bomb."

A l l e n ' s  r e p u t a t i o n  w i t h i n  the M e m p h i s  

Police Department was well d e s e r v e d .  When 

Allen was first hired as a police officer, a 

psychiatrist retained by Memphis to evaluate 

such applicants warned that Allen

may ... have difficulty c o n t r o l l i n g  
his i m p u l s e s . . . .  [h]is test data 
indicated some maladaptive behavior, 
thus he s hould be o b s e r v e d  and 
superv ised . ?

4 Pet. App. 9a; Tr. 47.
5 Pet. App. 9a; Tr. 70, 81.
6 See The Commercial Appeal, March 8, 1977.
7 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.



9

By the time of the a s s a u l t  on petitioners

some 20 c o m p l a i n t s  had been filed against

Allen, i n c l u d i n g  c h a r g e s  for serious abuse

of policy authority and use of u n n e c e s s a r y

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

s u s p e n d e d  on one o c c a s i o n  for b e a t i n g  an
8

inmate at the city jail. On another

o c c a s i o n  Allen, a p p a r e n t l y  angry that a 

woman had r e p o r t e d  a burglary, stopped her 

car on an interstate highway,

o r d e r e d  her into his squad car and 
taunted her for about an hour and a 
h a l f.... When he released h e r , 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 c a r . Although she had presented 
a valid driver's license when a s k e d , 
Officer Allen c h a r g e d  her with 
driving without a license.^

8 T r . 223-25.
^ Pet. App. 10a-11 a . The victim testi fied 

" [ H ]e k n o c k e d  me up a g a i n s t  the hood, 
grabbed me by the arm, and opened the d o o r , 
and literally threw me in the police car." 
Tr. 120. She characterized Allen's conduct 
during her ordeal as "crazy." Tr. 118.



10

No a ction had been tak en  by the Department

regarding the complaint filed with regard to

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

Allen's most bizarre conduct a p p a r e n t l y

ar ose  out of an i n c ident in 1975 when he
10

shot and killed a teenage black youth. On

October 18, 1975, Allen s p o t t e d  the v i c t i m

a p p a r e n t l y  engaged in stealing a television

set from a closed hotel. After c h a s i n g  the

s u spect on foot, Allen d r e w  his s e rvice

revolver and shot him. The circumstances of

the k i l l i n g  p r o m p t e d  a u t h o r i t i e s  to refer

the case to the gra nd  jury, but the grand
11

jury r e f u s e d  to indict Allen. Thereafter 

Allen repeatedly bragged about the killing; 

a fe llow o f f i c e r  r e m a r k e d  of Allen, "[H]e 

thought it was a great thing, you know to be

^  Tr. 145, 24 3-45. The d e t a i l s  of the 
inc id en t are set out in a F i r e a r m s  Use 
Report filed by Allen. There was no claim 
that the victim was armed.

11 Tr. 157-8.



a police officer and kill somebody." Allen

expressed to his fellow o f f i c e r s  a m o r b i d

interest in the nature of the lethal wounds
1 3

he had i n f l i c t e d  on his victim. Alien 

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

sion as his " k i l l i n g  gloves," and he would 

c e r e m o n i o u s l y  put on those g l o v e s  when he

was c alled to the scene of a crime. (Pet. 
14

App. 9a)

Officer A l l e n , in s h o r t , was an obvious- 

ly and exceptionally d a n g e r o u s  man whom no 

s e n s i b l e  police department would have armed 

with a gun and a badge and set loose on the 

local c i t i z e n r y .  The d i s t r i c t  court held 

that A l l e n ' s  i m m e d i a t e  s u p e r v i s o r s  were

Pet. App. 9a; T r . 148.
^  Pet. App. 9a; Tr. 131 ("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." 
T r a n s c r i p t  of Hearing Before Magistrate, 
1982, p . 4.



12

aware of his dangerous propensities. (Pet.

App. 25a). One of Allen's fellow o f f i cers,

in successfully seeking to avoid riding in a

squad car with Allen, had described A l len's
1 5

a b b e r a n t  b e h a v i o r  to their c a p t a i n ,  and

All en  h i m s e l f  sta ted that he had s poken

about his p r o b l e m s  with "upper e c helon 
16

people." The district court concluded that 

Allen had been kept on the force despite his 

well known p r o p e n s i t y  for v i o l e n c e  as a 

result of four Memphis City policies.

First, the p r o c e d u r e s  f o l lowed by 

Chapman and his p r e d e c e s s o r s  d e l i b e r a t e l y  

and systematically insulated the Director of 

Police  from any k n o w l e d g e  of v i o l e n c e  or 

other m i s c o n d u c t  by p o l i c e  o f f i c e r s ,  thus 

assuring that they would never take steps to 

c o r r e c t  or prevent such action. (Pet. App. 

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

D e p a r t m e n t a l  p o l i c y  never to show the

15 Tr. 147, 158-59.
Transcript of Hearing before United States 
Magistrate, 1982, p. 5.



13

D i r e c t o r  c o m p l a i n t s  or i n t e r n a l  r e ports
1 7

r e g a r d i n g  p o l i c y  b r u t a l i t y .  Even though

Director Chapman sent an i n d i v i d u a l  letter

to every p e r s o n  filing such a c o m p l a i n t ,

assuring the complainant that the matter was

being investigated, the form letter Chapman

signed never mentioned e i t h e r  the i n c ident

c o m p l a i n e d  of or name of the o f ficer

involved, thus leaving C h a p m a n  i g n o r a n t  of
1 8

what his s u b o r d i n a t e s  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 d a n g erous p r o p e n s i t i e s ,  and 

no duty to report known problems to Chapman 

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

Police Director has never taken any affirma-

17 Tr. 172-174, 213-17.
18 Pet. App. 15 a - 2 3 a ; Tr. 185, 189.



14

tive steps to learn of o f f i c e r  miscon duct 

from precinct level supervisors. (Pet. App. 

13 a -14a).

Second, the re  was t h r o u g h o u t  the 

D e p a r t m e n t  a code of s i l e n c e  b i n d i n g  

p a t r o l m e n  and s u p e r v i s o r s  alike not to 

t e s t i f y  a g a i n s t  or r eport on their c o l ­

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

is e n f orced by peer p r e s s u r e ,  and tacitly 

s a n c t i o n e d  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). 

C h apman c a n d i d l y  a c k n o w l e d g e d ,  "We have 

never, since I have been d i r e c t o r ,  had the 

first s i n g l e  case where o f f i c e r s  would 

really cooperate in terms of t e l l i n g  us on

an o f f i c i a l  basis what they knew about a
19

fellow officer." The only step Chapman ever 

took to end this p r a c t i c e  was to p r o v i d e  a

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



15

p s y c h o l o g i c a l  c o u n s e l i n g  s e r v i c e  for 
20

o f f i cers. The code of s i l e n c e  which 

pervaded the Department and was tolerated by 

its highest officials was precisely the sort 

of c u s t o m  referred to in Monell v . New York 

City Department of Social S e r v i c e s , 436 U.S, 

658, 691 (1978).

Third, until July of 1980 it was the

policy of the Depa rt men t never to r e a s s i g n

an o f f i c e r  from a position for disciplinary

reasons. As C h apman e x p l a i n e d ,  "any

t r a nsfer for any w r o n g d o i n g  or for any

suspect of wrongdoing ... was s p e c i f i c a l l y  
21

p r o h i b i t e d . "  Because of this restriction, 

which for years was c o n t a i n e d  in the 

a g r e e m e n t  b e t w e e n  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 

t e r m i n a t i o n  of this p o l i c y  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 p r e v e n t  the a s s ault on 

petitioners.

Fi nally, any d i s c i p l i n a r y  action 

involving the dismis sa l of an o f f i c e r  or a 

s u s p e n s i o n  in e x cess of 10 days r e q u i r e d  

approval of the city Civil S e r v i c e  C o m m i s ­

sion, wh ose m e m b e r s  were c h o s e n  by the
22

mayor. It was in Chapman's view the policy

of the C o m m i s s i o n  never to u p hold the

d i s m i s s a l  of an officer if it were based on
23

violent misconduct. Chapman testified that

he had on one occasion attempted to d i s m i s s

an o f f i c e r  who se  c o n d u c t  he d e s c r i b e d  as

"very similar to" Allen's; that o f f i c e r  had

t h r e a t e n e d  to shoot his lieutenant, and had

become so e x c i t e d  while p i s t o 1 - w h i p p i n g  a
24

d e f e n d a n t  that he pass ed out. The Civil 

Service Commission, however, r e i n s t a t e d  the

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



17

d i s m i s s e d  officer. Based on that case and

similar i n c i d e n t s  it was a p p a r e n t l y

Chapman's practice not to attempt to fire an

officer for b r u t a l i t y ,  since he b e l i e v e d

such d i s m i s s a l s  would i n e v i t a b l y  be over- 
26

turned .

C h a p m a n  a c c u r a t e l y  c h a r a c t e r i z e d  the

disciplinary situation within the Department

at the time of the assault on petitioners as 
27

" h o p e l e s s . "  Under the City policies then 

in effect the D i r e c t o r  was i n s u l a t e d  from 

i n f o r m a t i o n  r e g a r d i n g  o f f i c e r s  whom even 

their c o l l e a g u e s  knew to be u n s t a b l e  and 

d a n g e r o u s  , and the Department was unwilling 

to actually mete out any signi ficant punish­

ment to officers found guilty of misconduct . 

Immune from any s c r u t i n y  by the Police 

D e p a r t m e n t , M e m p h i s  p olice o f f i c e r s  were 

armed not only with a gun but also with a 

license to a ttack c i t i z e n s  v i r t u a l l y  a t

25 J r . 184; P e t . A p p . 2 3 a ; see also T r . 208.
26 P e t . A p p . 15a; T r . 195.
22 Jr. 198.

25



18

will. C h apman acknowledged, "in my opinion 

... probably many cases were not h a n d l e d  as 

they s hould be. It was not the emphasis on 

the responsibility of the depart m e n t  or the 

i n d i v i d u a l  o f f i c e r s  as there s hould have 

been." ( Tr . 208-09). O f f i c e r  Allen was

clearly one of those mishandled cases.

(3) The Proceedings Below

P e t i t i o n e r s  c o m m e n c e d  this action
28

against Officer Allen and Director Chapman 

on February 22, 1978, in the United States 

D i s t r i c t  Court for the Western District of 

Tennessee. Both the caption and the body of 

the c o m p l a i n t  named as a d e f e n d a n t  "E. 

Winslow Chapman, D i r e c t o r  of Police" (J.A. 

4a) ; neither suggested that Chapman was sued 

only in his p e r s o n a l  c a p a c i t y .  An answer 

was filed on Chapman's behalf by the Memphis 

City Attorney, who has continued to repre-

The complaint also named as a defendant the 
Mayor of Memphis. The d i s t r i c t  court 
granted a motion to dismiss on behalf of the 
Mayor on July 13, 1978.



19

sent C h a p m a n  t h r o u g h o u t  these proceedings. 

Any u n c e r t a i n t y  that m i g h t  have e x i s t e d  

r e g a r d i n g  the capacity in which Chapman was 

sued was definitively resolved more than 19 

m o n t h s  prior to trial. In r e s p o n s e  to a 

motion for s u m m a r y  j u d g m e n t  also filed on 

C h a p m a n 's b e h a l f  by the M e m p h i s  City 

Attorney, c o u n s e l  for p e t i t i o n e r s  stated 

unequivocally:

D e f e n d a n t  Chapman is sued in his 
o f f i c i a l  c a p a c i t y  as D i r e c t o r  of 
Police Services, City of M e mphis 
T e n n e s s e e .  " [ O j f f i c i a l  c a p a c i t y  
suits g e n e r a l l y  represent an action 
against an e ntity of which an 
o f f i c e r  is an a g e n t . . . . "  Monell v. 
New York D e p a r t m e n t  of Social 
S e r v ices, 436 U . S . 6 5 8, 690 n . 5 5rwmr̂

29 R e s p o n s e  to Renewed M o t i o n  for Summary 
Judgment of Defendant E. Winslow Chapman, p. 
2. this document also alleged that certain 
city policies alleged to have c aused the 
assault on petitioners were carried out by 
"[djefendant Chapman, acting in his official 
capacity . " Id . p . 3.



20

This s t a t e m e n t  clearly put both Chapman and 

the City Attorney on notice that petitioners 

were not seeking a personal judgment against 

Chapman, and that any m o n e t a r y  awar d would 

have to be paid by the city itself,

A default judgment was e n t e r e d  agai nst 

Of ficer Allen. The case proceeded to trial 

against Director Chapman in September, 1980. 

T h r o u g h o u t  the trial it was repeatedly made 

clear that the acti on was a g ainst C h a p m a n  

only in his o f f i c i a l  c a p a c i t y ,  and that 

p e t i t i o n e r s  c o n t e m p l a t e d  that if they 

p r e v a i l e d  the judgment would as a practical 

matter run against the city. In his opening 

s t a t e m e n t  c o u n s e l  for p e t i t i o n e r s  e m p h a ­

sized:

Mr. C h a p m a n  is sued in this lawsuit 
in his official capacity, and as was 
s tated in Mone ll  v e r s u s  New York 
City Department of Social Services, 
a 1978 S u preme Court case, official 
capacity suits generally represent



21

only a n o t h e r  way of p l e a d i n g  an 
action against an entity of which an 
o fficer is an agent. 30

Counsel for p e t i t i o n e r s  also a c k n o w l e d g e d  

that under Monell the critical factual issue 

was w h e t h e r  the assault on p e t i t i o n e r s  

Brandon and Muse was the r esult of M e m p h i s  

Cit y policies :

The suit against Mr. Chapman in his 
o f f i c i a l  c a p a c i t y  is one which 
a d d r e s s e s  i t s e l f  to what we allege 
are p r o b l e m s  within the M e mphis 
Police D e p a r t m e n t . . . .  [T]he 
determination for the Court to make 
is w h e t h e r  ... these policies which 
allow a p e r s o n  of the n a t u r e  of 
Robert Allen to go about the streets 
of Memphis, Tennes s e e ,  with his 
s e r v i c e  r e v o l v e r  and all the other 
t r a p p i n g s  of a p olice o f f i c e r  ... 
deny equal p r o t e c t i o n  of the 
l a w . ... 31

During the course of the trial the district 

court ruled a d m i s s i b l e  h e a r s a y  t e s t i m o n y  

regarding out of court statements by several

30 T r . 6. Counsel for petitioners referred at 
two other points in his opening statement to 
the fact that C h apman was sued in his 
official capacity.

31 Tr. 7.



22

p olice o f f i c e r s ,  on the g r o u n d  that such

o f f i c e r s  were  a gents or e m p l o y e e s  of a 
32

party. Since the officers in question were 

employees and agents of the City of Memphis, 

not of C h a p m a n  p e r s o n a l l y ,  that d e c i s i o n  

reflected the court's und er standing that it 

was the City which  was the d e f e n d a n t . In 

d i s c u s s i n g  the a d m i s s i b i l i t y  of other 

e v i d e n c e ,  c o u n s e l  for p e t i t i o n e r s  r e i t e r ­

ated, "Mr. Chapman is not sued individually, 

but in his o f f i c i a l  capacity.... [W]hether 

or not Mr. Chapman is liable in his personal

c a p a c i t y ,  t h a t ' s  not the issue in the 
33

lawsuit . "

The d i s t r i c t  judge found Chapman liable 

for the v i o l a t i o n s  of p e t i t i o n e r s '  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

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

33 Tr. 202, 233.



23

c a p a c i t y . "  The judge also made clear his 

u n d e r s t a n d i n g  that the j u d g m e n t  was to be 

paid by the city, c i t i n g  this C o urt's 

h o lding in Monell that " o f f i c i a l  capacity 

suits g e n e r a l l y  r e p r e s e n t  only another way 

of pleading an action a g a i n s t  an e n t i t y  of 

which an o f f i c e r  is an a g e n t . . . . "  (Pet. 

A p p . 16a-17a) .

That u n d e r s t a n d i n g  p e r m e a t e d  the lower

court proceedings which followed. The trial

court r e f e r r e d  the assessment of damages to

a m a g i s t r a t e  ( 3 . A. 21a). In their b r i e f

c o n c e r n i n g  d a m a g e s ,  p e t i t i o n e r s  expressly

noted that the trial court had found Chapman

"to be l i a b l e  in his official capacity for
35

the i n j uries suffered by the plaintiffs." 

The City Attorney not only emphasized in his

34 pet. App. 1a, 16a, 21a. See also i d . 26a 
(Chapman held liable "in his capacity as 
Director of the Memphis Police Department.")

35 Plaintiff's Pre-Hearing Brief for Award of 
Compensatory and Punitive Damages, 1; see 
also id. at 3 (Chapman held responsible "in 
his o f f i c i a l  c a p a c i t y "  for i n j u r i e s  to 
petitioners) .



24

re pl y b r i e f  that the fin ding of liability

was only a g a i n s t  C h a p m a n  in his o f f icial

c a p a city, but r elied on that aspect of the

trial judge's decision to avoid an award of

p u n i t i v e  d a m a g e s .  C iting this Cour t's

decision in Newport v, Facts Concerts, I n c . ,

453 U.S. 247 ( 1 981 ), the City A t t o r n e y

asserted that "no award of puniti ve d a mages

is to be made aga inst d e f e n d a n t  Chapman

since he was found liab le in his o f f i c i a l  
3 6

c a p a c i t y . "  Since N e w p o r t , while forbiding 

a wards of p u n i t i v e  d a m a g e s  against munici­

palities, had expressly u p h e l d  such a wards  

aga inst individual municipal officials, the 

argument thus advanced by the City A t t o r n e y  

made no sens e unless he too understood that 

the award against C h a pman "in his o f f i c i a l  

c a p a c i t y "  was in fact an award against the 

City of M e m p h i s .  The M a g i s t r a t e  shared 

respondent's view on that issue, holding

36 B r i e f  of Defendant E. Winslow Chapman on 
issue of Damages, 1.



25

that "no p u n i t i v e  d a m a g e s  may be a w a r d e d  

against defendant Chapman, since he was sued 

as D i r e c t o r  of the M e m p h i s  P olice D e p a r t ­

ment . City of Newport v. Fact Concerts, 

I n c ." ( 3 . A. 32a). In c a l c u l a t i n g  the 

c o m p e n s a t o r y  d a m a g e s  a l l o w a b l e  against 

defendant Chapman, the Magistrate refused to 

take into c o n s i d e r a t i o n  any a d d i t i o n a l  

psychological harm s u f f e r e d  by p e t i t i o n e r s  

due to the fact that the a s s a u l t  had been 

c a rried out by a police o f f i c e r  (3. A. 

2 3 a - 2 7 a ) . The d i s t r i c t  court approved the 

m a g i s t r a t e ' s  r e c o m m e n d a t i o n s .  ( 3 . A. 35a- 

37a). Both parties appealed.

While the case was on appeal C h apman 

left office, and was r e p l a c e d  as Police 

Director in December 1982 by 3ohn D. Holt. 

Since the lower court decision was against 

Chapman in his official c a p a c i t y ,  Holt was 

a u t o m a t i c a l l y  s u b s t i t u t e d  as the named 

d e f e n d a n t  by o p e r a t i o n  of Rule 4 3 ( c )(1), 

Federal Rules of Appellate Procedure. On



26

Oc tober 11, 1983, the court of appeals held 

that this litigation against Chap man in his 

o f f i c i a l  c a p a c i t y  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 a vailable,  

since a m u n i c i p a l i t y  can assert no such 

d e f e n s e  und er  Owen v. City,of Independe nce, 

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

h aving c o n c l u d e d  that a j u d g m e n t  against  

C h apman in his o f f i c i a l  c a p a c i t y  was a 

judgment against him p e r s o n a l l y ,  held that 

C h apman could assert such a good faith 

d e f e n s e  und er  Sch eu er v. R h o d e s , 416 U.S. 

232 (1974). Although the district court had 

understandably never a d d r e s s e d  the factual 

issu es  i n v o l v e d ,  the Sixth Circ uit then 

proceeded to consider the merits of the good 

faith cla im,  and concluded that Chapman had 

demonstrated the necessary benign intention. 

(Pet. App. 38a). C o mpare Pullman Standard

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



27

v. T r o u t , 79 L .E d .2d 732 (1984). A ccord­

ingly, the co urt of a p p e a l s  d i r e c t e d  that 

the claims against Chapman "in his o f f i c i a l  

c a p a c i t y "  be d i s m i s s e d .  The court of 

appeals also ruled that the M a g i s t r a t e  had 

erred in r e f u s i n g  to consider in assessing 

d a m a g e s  the a d d i t i o n a l  i n t a n g i b l e  injur y 

s u f f e r e d  by petitioners because the assault 

at issue occurred under color or law. (Pet. 

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

however, c o n c e r n e d  only the amount of 

d a m a g e s  a v a i l a b l e  aga inst o f f i c e r  Allen. 

Allen, who never p a r t i c i p a t e d  in the 

p r o c e e d i n g s  in the distric t court or court 

of appeals, is apparently judgment proof.

P e t i t i o n e r s  sought review by this Court 

of the court of appeals' decision r e g a r d i n g  

the legal significance of a judgment against 

a municipal official in his "official c a p a ­

cit y,"  n o t i n g  that the Sixth C i r c u i t ' s  

opinion was in c o n f l i c t  with d e c i s i o n s  of 

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



SUMMARY OF ARGUMENT

Suits against a public officer in his or 

her o f f i c i a l  c a p a c i t y  have long been 

r e c o g n i z e d  as a m e t h o d  of suing the entity 

for which the o f f i c i a l  works. Rule 

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

provides for the automatic substitution of a 

new o f f i c i a l  who replaces an official being 

sued in his or her official capacity. If a 

judgment against a defendant in his official 

capacity i m p o s e s  p e r sonal l i a b i l i t y ,  then 

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

i m p o s i n g  p e r s o n a l  l i a b i l i t y  on a new 

o f f i c i a l  for the acts of his or her prede­

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

e x p r e s s l y  s tates that such "official 

c a p a c i t y "  a c t i o n s  are " b r o u g h t  in form 

against a named officer, but intrinsically 

against the government." 3B Moore's Federal 

Practice 1! 2 5 .0 1 [ 1 3 ].



29

This Court has on three s e p a r a t e  

o c c a s i o n s  held that a m o n e t a r y  j u d g m e n t  

against an official in his or her "official 

capacity" is to be paid by the e ntity for 

which he or she works. Monell v. New York 

City Department of Social S e r v i c e s , 436 U.S. 

638, 690 n . 3 5 ( 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 l i t i g a t e d ,  tried, and 

adjudicated as an action against the Memphis 

Director of Police in his official capacity. 

Petitioners made clear in a p l e a d i n g  filed 

19 m onths prior to trial that D i r ector 

Chapman was sued only in his o f f i c i a l  

c a p a city, and that any judgment would thus 

have to be paid by the city. At trial 

counsel for p e t i t i o n e r s  r e p e a t e d l y  reite­

rated that C h a pman was sued only in his 

o f f icial c a p a c i t y .  The d i s t r i c t  c o u r t ' s  

Findings of Fact emphasized at three



30

different points that Chapman was being held 

liable only in his o f f i c i a l  c a p a c i t y ,  and 

m akes clear the u n d e r s t a n d i n g  of the trial 

j udge that the r e s u l t i n g  j u d g m e n t  was a 

judgment against the city.

ARGUMENT

A Monetary Judgment Against A Public 
O f f i c i a l  "In His Official ,Capacity” 
Imposes Liability on the Government 
Entity for Which the Office W o r k s ,
Not on the Official Personally

The q u e s t i o n  p r e s e n t e d  by this case is 

whether a m o n e t a r y  j u d g m e n t  a g ainst a 

m u n i c i p a l  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 

d e f e n s e  e x ists. Owen v. City of Indepen­

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

runs against the personal funds of the named



31

o f f i c i a l ,  he or she is e n t i t l e d  to assert 

the good faith defense recognized in Scheuer 

v. R h odes, 416 U.S. 232 (1974).

The a nswer 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 s u c c e s s o r  is a u t o m a t i c a l l y  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 A p p e l l a t e  P r o c e d u r e  and S u p reme 

Court Rule 40.3.

If an action and j u d g m e n t  against a 

government employee in his or her o f f i c i a l  

c a p a c i t y  i m p o s e d  p e r s o n a l  l i a b i l i t y ,  then 

the effect of the a u t o m a t i c  Rule 25(d)(1) 

s u b s t i t u t i o n  would be to make the successor 

official personally liable for the a c t ions 

and torts of his or her p r e d e c e s s o r ,  at 

least where the p r e d e c e s s o r  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, 210.75 in damages . It was

certainly not the intent of either the

framers of Rule 23(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



33

o f f i c i a l  c a p a c i t y  l a w s u i t s ,  the Note 

o b s e r v e d ,  were "bought in form against a 

named officer, but intrinsically against the 

g o v e r n m e n t . " ^  The Committee Note explained 

that in a Rule 25(d) a ction against an 

o f fic er "in his o f f i c i a l  c a p a c i t y "  any 

judgment was to provide " r e l i e f  ... by the 

one h aving official status, rather than one

who has lost that status and power t h r o u g h
38 , x

c e a s i n g  to hold o f f i c e . "  Rule 25(d)

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

tion l i m i t e d  to l i t i g a t i o n  s e e k i n g  relief 

against w h i c h e v e r  o f f i c i a l  m i g h t  hold the 

office. A p l a i n t i f f  s e e k i n g  a m o n e t a r y  

award to be paid by the g o v e r n m e n t  is 

d i r e c t e d  by Rule 25(d) to sue the relevant 

o f f i c i a l  "in his o f f i c i a l  c a p a c i t y " ;  a 

p l a i n t i f f  s e e k i n g  such an award against an 

o f f i c i a l  to be paid "out of [his] own

37 Quoted in 3B M o o r e ' s  F e deral P r a c t i c e , 
112 5.01 [13].

38 id.



34

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 

personal1 y . In Monell v. New York Depart­

ment of Social Services, 436 U . S. 6 58, 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 gov ernments can be sued under 
§ 1983 necessarily decides that 
1 oca 1 government officials sued in 
their official capacities are 
"persons" under § 1983 in those 
cases in which, as he re, a local 
government would be suable in its 
own name.

39 id.



35

Because it r e g a r d e d  a suit against an 

o f f i c i a l  in his official capacity as a suit 

against the governmental entity for which he 

worked, the Court in Mo ne 11 held such 

" o f f i c i a l  c a p a c i t y "  suits proper when, but 

only when, the entity itself could be sued.

A similar conclusion with regard to good 

faith i m m u n i t y  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 

p l a i n t i f f  in that case had sued the city of 

Independence and certain city o f f i c i a l s  "in 

their o f f i c i a l  c a p a c i t i e s . "  445 U.S. 630. 

In upholding an award of backpay this Court 

e m p h a s i z e d :

The g o v e r n m e n t a l  i m m u n i t y  at issue 
in the present case differs signifi­
cantly from the official immunities 
involved in our previous d e c i s i o n s .  
In those cases, v a r i o u s  government 
o f f i c e r s  had been sued in their 
i n d i v i d u a l  capacities.... Here, in 
c o n t r a s t ,  only the liability of the 
municipality itself is at issue, not 
that of its o f f i c e r s  ... 445 U.S. 
638 n .18 ~ (Emphasis a d d e d ) .



36

Thus both for purposes of jurisdiction under

Mo n e11, 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.

iniHutto 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 
CiTT 1 980); Cam'pbell v , Bowlin, 724 F . 2d 
484, 489 n . 4 (5th fcirV 1$84) ; Universal 
Amusement Co. v. Ho fheinz, 646 F . 2d 996, 997 
T5th Cir. 1981); Van Oot’eqhem v . Gray, 628 
F. 2d 488 , 496 ( 3 T h ^ n T T T 9 W T T F  a m i 1 y 
L)nid as v. Briscoe, 619 F . 2d 391 , 40 5 (5 th 
Cir . 1980) ; Gay Student Services v. Texas A 
& M University, 612 F .2d 160, 164 (5th CirT 
T M o T T ^ TTncaid v. Rusk, 670 F,2d 737, 742 
n . 7 (7th Cir. 1982)| Nekolny v . Painter, 653 
F . 2d 1164, 1170 (7th Cir." 1981 ) BeTTot v . 
School Dist. No. 1, Albany County ,*~?TTTT?d 
245, 247 n . 1 (10th Cir. 1979); Key v.
Rutherford, 645 F.2d 880, 883 n.5 (10th Cir.
T£81)~



3 7

Correction and the members of the Arkansas 

Board of Correction, to pay the plaintiffs 

$2,500 in counsel fees, This Court com­

mented :

The order does not expressly direct 
the Department of Correction to pay 
the award, but since [the defen­
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 adj ud ic at ed as an action against the

Memphis Di rector 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



38

that the court had found D i r e c t o r  Chapman

liable in his c a p a c i t y  as D i r e c t o r  of the
42

Police D e p a r t m e n t . The d i s t r i c t  judge

clearly contemplated that the d a m a g e s  which

he had a w a r d e d  would be paid by the city of

Memphis, not by Director Chapman personally.

Quoting this C o u r t ' s  opinion Monel1, Judge

H orton d e c l a r e d  that an "official capacity

suit[ ] ... r e p r e s e n t s ]  only another way of

p l e a d i n g  an a ction a g ainst an e n t i t y  of
43

which an officer is an agent.

The Sixth Circuit in r e v e r s i n g  the 

d i s t r i c t  court j u d g m e n t  for p e t i t i o n e r s  

assumed that an action and judgment against 

C h a pman in his o f f i c i a l  capacity were as a 

matter of law an action and judgment against 

C h apman p e r s o n a l l y .  (Pet. App. 39a). At 

the time of the Sixth C i r c u i t ' s  d e c i s i o n  

former D i r e c t o r  Chapman, by o p e r a t i o n  of 

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

41 Pet. App. 1a, 16a, 23a. 
*2 J .A . 21a.
43 Pet. App. 16a.



3 9

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.

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.0. Box 760 
Ashland, Oregon 97,520

WILLIAM E. CALDWELL 
P.0. Box 60998 
Fairbanks, Alaska 99706



4 0

J. LeVONNE CHAMBERS 
ERIC SCHNAPPER *

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

Counsel f o r  Petitioners 
♦Counsel o f  Record""*”



Hamilton Graphics, Inc.— 200 Hudson Street, New York N.Y.— (212) 966-4177