Brandon v. Holt Brief for Plaintiffs-Appellees

    IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

4 Nos. 86-6183 4 86-6241 
t ___________________

ELIZABETH ANNE BRANDON, et al.,
PlaintIffs-Appellees,

v.
JOHN D. HOLT,

Defendant-Appellant.

Appeal From The United States District Court 
For The Western District of Tennessee 

Western Division

BRIEF FOR PLAINTIFFS-APPELLEES

JULIUS LeVONNE CHAMBERS 
ERIC SCHNAPPERNAACP Legal Defense & Educational 

Fund, Inc.
16th Floor
99 Hudson Street
New York, New York 10013

« (212) 219-1900
WILLIAM E. CALDWELL 

P.0. Box 60996 
Fairbanks, Alaska 99706 
(907) 452-5181

ELIZABETH A. McKANNA 
686 West Clover Drive 
Memphis, Tennessee 38119 
(901) 395-3441

Counsel for Plaint!ffs-Appellees



TABLE OF CONTENTS

Table of Authorities ............................  ii
Statement of Issues Presented for Review .........  1
Statement of the Case ...........................  2

(A) The Proceedings in This Case ..........  2
(B) The Findings of the District Court .... 5

Summary of Argument .............................  8
Argument ......................................... 10

I. The District Court Correctly Resolved 
This Case Under Monell v. New York
City Department of Social Services ......  10

Cases: Page

II. The District Court's Finding That
Plaintiffs' Injuries Were Caused by 
Municipal Policies and Customs Was
Not Clearly Erroneous .................  13

III. The District Court Did Not Err InIncreasing The Award of Damages .......  18
IV. The District Court Properly Awarded

Counsel Fees ..........................  23
Conclusion ....................................... 27

j Appendix: Brief for Respondent, Brandon v. Holt,
469 U.S. 464 (1985)   la

i



TABLE OF AUTHORITIES

Anderson v. City of Bessemer City,
91 L . Ed. 2d 518 (1985) .........................  9,14

Blum v. Stenson, 465 U.S. 886 (1984) ............  25
Brandon v. Allen, 516 F. Supp. 1355 
(W.D. Tenn. 1981)   2,3

Brandon v. Allen, 719 F.2d 151
(6th Cir. 1983)   3,19,20

Brandon v. Holt, 469 US. 464 (1985) .............  3,4,10,12
Buckhart v. Randles, 764 F.2d 1196

(6th Cir. 1985)   16
City of Springfield v. Kibbe, 55 U.S.L.W.4239

(1987)   14
Hensley v. Eckerhart, 461 U.S. 424 (1984)........  25
McKenna v. City of Memphis, 785 F.2d

560 (6th Cir. 1986)   12,13
Memphis Community College v. Stachura,

91 L.Ed.2d 249 (1986)   20,21,22
Monell v. New York City Dept, of Social

Services, 436 U.S. 658 (1978)   8,10,13,
16,17

National Ass1n of Concerned Veterans v.
Secretary of Defense, 675 F.2d 1319
(D.C. Cir. 1982)   25

Northcross v. Board of Education of Memphis
City Schools, 611 F.2d 624 (6th Cir. 1979)   26-27

Pembaur v. City of Cincinnati, 89 L.Ed.2d
452 (1986)   14-16

Pullman Standard Co. v. Swint, 456 U.S. 273
( 1982)   14

Rymer v. Davis, 754 F.2d 198 (6th Cir. 1985) .... 18,23

Cases: Page

ii



Page
Thompson v. National Railroad Passenger Corp.,

621 F. 2d 814 (6th Cir. 1980) ..................  9,23

Other Authorities:
28 U.S.C. § 636(b) (1) ...........................  22
42 U.S.C. § 1983 ................................  2,21

Rule 52, Federal Rules of Civil Procedure .......  5
Rule 8, Local Rules of the United States 

District Court for the Western District
of Tennessee ..................................  9,23-24,27

iii



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Nos. 86-6183 
86-6241

ELIZABETH ANNE BRANDON, et al.,
Plaintiffs-Appellees,

v .
JOHN D. HOLT,

Defendant-Appellant.

Appeal From The United States District Court 
For The Western District of Tennessee 

Western Division

BRIEF FOR PLAINTIFFS-APPELLEES

STATEMENT OF ISSUES 
PRESENTED FOR REVIEW

(1) Did the district court err in rejecting the city's
request that that court dismiss this case rather than resolve it 
on the merits?

(2) Were the district court's findings of fact regarding 
liability clearly erroneous?

(3) Was the award of damages in this case "so large as to 
shock the judicial conscience?"

(4) Did the district court abuse its discretion when it
granted plaintiffs' application for counsel fees?



2

STATEMENT OF THE CASE 
(1) The Proceedings in This Case

This case arose out of an unprovoked attack on two innocent 
civilians by a Memphis police officer. On the night of March 5, 
1977, plaintiffs Elizabeth Brandon and James Muse, then both 
seventeen years old, were parked on a secluded driveway in 
Memphis. Officer Robert Allen, after identifying himself as a 
member of the Memphis Police Department, ordered Mr. Muse to 
step out of the car. After briefly questioning him, officer 
Allen viciously, and without provocation, struck Mr. Muse in the 
neck and head and then stabbed and cut Muse on the neck and ear 
with a knife. As Officer Allen attempted to break into the car 
in which Ms. Brandon was seated, Mr. Muse jumped into the 
driver's seat and quickly drove away. Officer Allen fired at the 
escaping vehicle with his service revolver, and a bullet fragment 
was later removed from Ms. Brandon's face. Mr. Muse underwent 
three hours of plastic surgery, and still has scars as a result 
of the attack. See Brandon v. Allen, 516 F .Supp. 1355, 1356-57 
(W.D. Tenn. 1981).

On February 22, 1978, the plaintiffs brought this action in 
the United States District Court for the Western District of 
Tennessee, seeking both damages and declaratory relief. The 
complaint alleged a cause of action under 42 U.S.C. §§ 1983 and 
1988, and the Fourteenth Amendment of the Constitution. Named as 
defendants were Wyeth Chandler, the Mayor of Memphis, E. Winslow



3
Chapman, the Director of Police, and Officer Allen. Prior to and 
during the trial counsel for plaintiffs repeatedly insisted that 
Chapman was being sued in his official capacity, expressly noting 
that such official capacity suits constituted an action against 
the entity of which the officer was an agent. Brandon v. Holt, 
469 U.S. 464, 469-70 (1985). The district court found in favor 
of the plaintiffs against both Allen and Chapman, holding the 
latter liable "in his official capacity." Brandon v. Allen, 516 
F. Supp. at 1359. The district judge referred the question of 
damages to the United States Magistrate, who recommended 
compensatory awards of $21,310.75 to Mr. Muse, and $5000 to Ms. 
Brandon; the district court accepted that recommendation. The 
city appealed the liability finding regarding defendant Chapman, 
and the plaintiffs appealed the amount of the compensatory award.

This court reversed the judgment against defendant Chapman. 
Although acknowledging that Chapman had been sued and held liable 
in his official capacity, the court concluded "this is a suit 
against an individual, not the city." Brandon v. Allen, 719 F.2d 
151, 154 (6th Cir. 1983). The court of appeals reasoned that 
defendant Chapman, as an individual, had a good faith immunity 
defense. The appellate panel also overturned as inadequate the 
compensatory award, reasoning that the Magistrate and district 
court had improperly failed to consider the additional injury to 
the plaintiffs' "dignitary interests" that had occurred because 
the assault was perpetrated by a police officer rather than by a 
private citizen. 719 F.2d at 154-55.



4
The Supreme Court granted certiorari and held that the 

judgment against the Police Director in his official capacity 
should have been treated as a judgment against the city itself. 
The Court noted that the City of Memphis, unlike its employees, 
could not rely on a good faith immunity defense. Brandon v. Holt, 
469 U.S. 464 (1985). The Supreme Court declined to resolve the 
city's contention that the record did not establish that 
plaintiffs' injuries had been caused by a municipal policy or 
custom. 469 U.S. at 473 n. 25. On November 9, 1985, this court 
remanded the case to the district court, reasoning that the trial 
court's original 1981 opinion had failed to sufficiently "address 
or apply the 'policy or custom' requirement ... under Monel1." 
(1986 opinion, p. 1)

On remand the district court made detailed factual findings 
regarding the relevant city policies and customs, and further 
found that those customs and policies had in fact caused the 
constitutional violation at issue. (1986 opinion, pp. 7-19). 
Pursuant to the court of appeals' 1983 decision regarding 
damages, the district court reconsidered the extent of injury 
suffered by each plaintiff, and awarded compensatory damages of 
$10,000 to Ms. Brandon and $41,310.75 to Mr. Muse. (1986 
opinion, pp. 19-24). Following the remand plaintiffs had 
submitted application for counsel fees and costs, together with 
detailed supporting documents and affidavits. The city chose not 
to file any response to this application, or to ask that the 
application be made the subject of a hearing. Accordingly, the



5
district court acted on the application, awarding $5,876.23 in
costs and $116,228.75 in counsel fees. The fee award was
slightly less than two-thirds of the amount that had been
initially requested by plaintiffs. ( 1986 opinion, pp. 24-27).
(2) The Findings of the District Court

The litigation in this case has from the outset revolved 
around two essentially factual issues —  whether, prior to the 
1977 attack on plaintiffs, the city had policies or customs which 
assured the retention on the police force of unstable or 
dangerous officers, and whether prior to 1977 the violent 
propensities of the particular officer who attacked plaintiffs 
were sufficiently clear that that officer would not have been 
retained on the force, or at least on patrol duties, but for 
those policies and customs. Both in its 1981 opinion and in its 
1986 opinion the district court resolved these factual issues in 
favor of plaintiffs. In its brief on this appeal, however, the 
city once again offers a lengthy "statement of facts" summarizing 
the evidence rejected by the district judge, and making no 
reference to the repeated findings to the contrary by the court 
below. (Brief for Defendant-Appellant Holt, pp. 5-11).

The factual findings of the district court regarding these 
issues are controlling unless clearly erroneous. Rule 52(a), 
F.R.C.P. The city does not squarely assert that any of the 
district courts findings of fact were clearly erroneous—  
indeed, with a few exceptions the city simply does not discuss 
those findings at all. Although pointing to evidence which might



6
have supported factual findings more favorable to the city, 
counsel for the city does not directly attack the actual findings 
of the court below. Absent a showing of clear error those 
findings must be accepted on appeal.

Counsel for the city suggests that prior to 1977 the city's 
policies for dealing with violent officers, although "not 
perfect," were no worse than "many cities across the country." 
(Id., p. 21) The city contends that, following the September
1976 appointment of defendant Chapman as Police Director, a 
variety of reforms were begun to deal with problems of police 
brutality. (Id., pp. 8-9). Director Chapman, the city asserts, 
sought to become Police Director "in order that he could 
institute changes" and had a "fine record and progressive 
directorship." (Id., p. 9) On this view, in 1977, when the 
attack at issue occurred, Memphis had a typical big city police 
department whose procedures for dealing with police brutality 
were being steadily improved.

The district judge, however, concluded that in fact in 1977
the Memphis Police Department still overtly and knowingly
tolerated acts of brutality:

Chapman accurately characterized the disciplinary 
situation within the Department at the time of the 
assault ... as "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 punishment to offices found guilty of 
misconduct. Immune from any scrutiny by the Police 
Department, Memphis police officers were armed not only



7
with a gun but also with a license to attack citizens 
virtually at will. (1986 opinion, pp. 13-14) (Footnote 
omitted).

The district court identified four specific policies or customs 
which assured that a dangerously violent officer would be 
retained on the Memphis Police force regardless of his record of 
misconduct. (1986 opinion, pp. 10-13).

The city describes officer Allen, the policeman who attacked 
plaintiffs, as an officer whose record was so unobjectionable 
that he would not have been removed from the force even under the 
best of procedures. The city quotes supervisory officials who 
testified that Allen's behavior was not unusual and that they had 
had no problems with him other than a few automobile accidents. 
The city suggests there were only two incidents in Allen's record 
involving possibly unnecessary force, and that in both instances 
Allen had been completely exonerated of any wrongdoing. (Brief 
for Defendant-Appellant Holt, pp. 507).

The city's innocuous characterization of officer Allen's 
record prior to the 1977 attack was completely rejected by the 
district court:

The officer who assaulted plaintiffs, as the Court 
previously found , was an "obviously dangerous man" 
whose "dangerous propensities were widely known among 
officers of the Department" prior to the attack of 
March 5, 1977.... Among the statements made by Allen's 
fellow officers following the assault ... were "they 
finally caught up with him," and "Allen has finally 
done something this time he can't get out of." Three 
days after the attack, the Commander of the Special 
Operations Bureau described Allen as "a walking time 
bomb."

Allen's reputation within the Memphis Police 
Department was well deserved.... By the time of the



8
assault ... some 20 complaints had been filed against 
Allen, including charges of serious abuse of police 
authority and use of unnecessary force.... 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 ... and ... threw her into his squad car.... 
Allen's most bizarre conduct apparently arose out of an 
incident in 1975 when he shot and killed a teenage 
black youth.... 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 a 
police officer and kill somebody." Allen expressed to 
his fellow officers a morbid interest in the nature of 
the lethal wounds he had inflicted on his victim.
Allen referred to a pair of gloves in his possession as 
his "killing gloves'.... (1986 opinion, pp. 7-10) 
(footnotes omitted).

The district court found that Allen was "an obvious and 
exceptionally dangerous man" and that "Allen's immediate 
supervisors were well aware of his dangerous propensities." 
(1986 opinion, p. 10). Allen, the court below concluded, was 
"kept on the force despite his well known propensity for violence 
as a result of [the] four Memphis City policies." (Id.)

SUMMARY OF ARGUMENT
The district court did not err in insisting on resolving 

this case on the merits. The city's procedural argument, that 
the only issue at the original trial was the personal liability 
of supervisor Chapman, was expressly rejected by the Supreme 
Court, and this Court's 1985 mandate left for resolution only a 
single liability issue —  whether there was sufficient evidence 
to meet the requirements of Monell v. New York City Dept, of 
Social Services, 436 U.S. 658 (1978).

Monell authorizes the imposition of liability for any
constitutional violation caused by a municipal policy or custom.



9
The district court on remand made detailed factual findings as to 
the existence of city policies and customs which predictably led 
to the unconstitutional attack on the plaintiffs in this case. 
Those findings are not clearly erroneous. Anderson v. City of 
Bessemer City, 84 L.Ed.2d 518 (1985).

The district court awarded a total of $51,310.75 to the two 
victims of the unconstitutional and unprovoked attack in this 
case. One plaintiff's throat was slashed by the officer 
involved; the other plaintiff was struck by fragments of a bullet 
fired by the officer at his unarmed and entirely innocent 
victims. This total award was not "so large as to shock the 
judicial conscience." Thompson v. National Railroad Passenger 
Corp., 621 F.2d 814, 827 (6th Cir. 1980).

Local Rule 8 of the Western District of Tennessee requires a 
party opposing any motion in a civil case to file a written 
response within 10 days of the motion, and to formally request a 
hearing if it desires one. After this case was remanded to the 
district court, plaintiffs filed a detailed written application 
for an award of counsel fees. Counsel for the city neither filed 
any response or objection to that application nor requested a 
hearing. The district court surely acted within its discretion 
when it chose not to hold the hearing which the city itself had
not sought.



10

ARGUMENT
I. THE DISTRICT COURT CORRECTLY RESOLVED THIS CASE UNDER 

MONELL V. NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES

In its 1985 decision the Supreme Court expressly specified 
the sole remaining liability issue which was to be dealt with on 
remand, whether "the record does not establish that petitioners' 
injury was caused by the kind of 'policy or custom' that 'may 
fairly be said to represent official policy' of the City of 
Memphis. See Monel1." Brandon v. Holt, 469 U.S. 464, 473 n.25. 
This court in turn remanded the case to the district court to 
"apply the 'policy or custom' requirement for municipal Section 
1983 liability under Monell." (1986 opinion p.l) The district
court, in compliance with that mandate, rendered a detailed 
opinion addressing the issue of whether the record in this case 
demonstrates the type of policy or custom required by Monell.

The city now argues, however, that the district court should 
never have reviewed the evidence to ascertain whether it 
demonstrated the existence of the requisite policy or custom. 
Rather, the city argues, the district court on remand should have 
dismissed the case in its entirety, regardless of whether the 
record in fact demonstrated that city policies or customs had 
caused the injuries of which the plaintiffs complain. The actual 
evidence must be disregarded, the city argues, because "the case 
was not tried in accordance with the proper standard to impose 
liability upon a municipal official sued in his official 
capacity." (Brief for Defendant-appellant Holt, pp. 11-17).



11
This is not a new argument; to the contrary, it is precisely 

the same argument which the city made without success in the 
Supreme Court.1 Part II of the City's Supreme Court brief was 
headed: "The case was not tried on the proper standard to impose 
liability against the police director in his official capacity." 
(Brief for Respondent, No. 83-1622, p. 16). The first two 
substantive pages of the city's brief in this court, pp. 12-13, 
are lifted verbatim from the city's Supreme Court brief. (Brief 
for Respondent, No. 83-1622, pp. 11-12). This line of argument 
is foreclosed by the Supreme Court's 1985 decision in this case.

The city objects, as it did in the Supreme Court three years 
ago, that the original complaint did not specify that Director of 
Police was being sued in his official capacity. (Brief for 
Defendant-Appellant Holt, pp. 10-12).2 But the Supreme Court 
held that the plaintiffs were "entitled to amend their pleadings 
to conform to the proof and to the District Court's findings of 
fact." 469 U.S. at 471. The city urges that it would be "highly 
prejudicial" if this case were tried as an action against the 
Police Director personally, but were decided as if it were an 
action against the city. (Brief for Defendant-Appellant Holt, p.

1 The city's Supreme Court brief is reprinted in the 
Appendix to this brief.

2 Compare Brief for Respondent, No. 82-1622, p. 18 ("The 
Complaint herein demonstrates that the action was brought only 
against individuals.... There is no allegation of a policy, 
practice or custom of the ... City of Memphis that deprived 
plaintiffs of constitutional rights").



12
16).3 In his dissenting opinion Justice Rehnquist apparently 
accepted this argument, 469 U.S. at 475, but the majority of the 
Supreme Court held, to the contrary, that it was "abundantly 
clear that the action against Chapman was in his official 
capacity" and that the plaintiffs were asserting "a right to 
recover damages from the City of Memphis." 469 U.S. at 469, 471. 
When this case was remanded to the district court, the city did 
not actually assert it had withheld any evidence at the 1980 
trial because it misunderstood the issues then being tried, and 
the city did not request any opportunity to reopen and supplement 
the record.

This court's opinion in McKenna v. City of Memphis, 785 F.2d 
560 (6th Cir. 1986) does not provide a basis for disregarding the 
Supreme Court's 1985 decision in the instant case. In McKenna 
the plaintiff brought an action against the city of Memphis 
alleging that he had been shot as a result of inadequate 
municipal training and supervision policies; the jury which hear 
the case against the city rejected the plaintiff's factual 
contentions. At trial the plaintiff neither objected to the 
city's firearms policy, nor offered evidence tending to show that 
he had been shot pursuant to that policy, and the district court 
found that the shooting had actually violated city policy. 785 
F.2d at 561. When, on appeal, the plaintiff for the first time

3 Compare Brief for Respondent, No. 83-1622, p. 9 (city 
entitled "to be put on notice as to the nature of the action ... 
in order that a proper defense can be maintained.")



13
sought to challenge that firearms policy, this Court correctly 
held he could not do so. 785 F.2d at 761.

The trial of the instant case was not, as the city suggests, 
limited to disputes about Director Chapman's personal knowledge 
of officer Allen's record. The trial focussed on general police 
department policies and customs which led to the attack on 
plaintiffs —  the "code of silence", the policy of never 
dismissing or transferring violent officers, and the consistent 
policy of a series of Police Directors of insisting that they 
not be told of police misconduct. The 1981 district court 
decision dealt expressly with the evidence regarding these 
general practices, and largely sustained plaintiffs' contentions. 
516 F. Supp. at 1361; 469 U.S. at 467 n.6.
II. THE DISTRICT COURT'S FINDING THAT PLAINTIFFS' INJURIES WERE

CAUSED BY MUNICIPAL POLICIES AND CUSTOMS WAS NOT CLEARLY
ERRONEOUS
Under Monell v. New York City Department of Social Services, 

436 U.S. 658 (1978), a city may be held liable only for those 
constitutional violations which are caused by municipal policies 
or customs. This Court noted in McKenna v. City of Memphis, 785 
F . 2d 560, 561-62 (6th Cir. 1986), that liability under Monell may 
arise where a constitutional violation is caused by city policies 
regarding the supervision and disciplining of potentially 
dangerous police officers. Even the more conservative members of 
the Supreme Court now agree that liability can be imposed on that 
basis, and that Monell applies whenever a city policy is "a
material element and substantial factor in bringing about the



14
alleged deprivation of protected federal rights", even if the 
policy is not itself unconstitutional. City of Springfield v. 
Kibbe, 55 U.S.L.W. 4239, 4242 (O'Connor, J., dissenting).
(1987)

The district court clearly understood the legal standard 
established by Monel1, as well as the additional guidance 
provided by the Supreme Court's more recent decision in Pembaur 
v. City of Cincinnati, 89 L.Ed.2d 452 (1986). The city does not 
suggest that the district court's finding of liability was based 
on a failure to apply Monel1, or on any error of law. The city 
challenges, rather, the sufficiency of the evidence to support 
the factual findings of the district court, asserting that 
"[t]here is nothing in the record to remotely suggest" that the 
city had any practice or policy whose effect would have been "to 
protect or overlook mentally unbalanced and dangerous police 
officers." (Brief for Defendant-Appellant Holt, p. 21).4 The 
district court's determination that such municipal policies and 
customs did indeed exist, and that they caused the injuries 
complained of is a finding of fact which can be overturned on 
appeal only if clearly erroneous. Rule 52, Fed. R. Civ. Pro.; 
Anderson v. City of Bessemer, 84 L.Ed.2d 518 (1985 ); Pullman 
Standard Co. v. Swint, 456 U.S. 273 (1982).

4 See also id. at 11 ("the facts in this case do not 
establish a policy or custom which would impose municipal 
liability"), 17 ("the facts of the case do not support a finding 
of municipal liability under the Monell standards"), 19 ("there 
was no custom or policy which condoned the retention of unstable 
officers"), 23 ("the record as a whole does not support the 
Court's findings").



15
The district court found that there were several distinct 

city policies which had caused the retention on the Memphis 
Police Department of an officer widely known to be dangerous and 
unstable. First, there was a city policy of never dismissing an 
officer for an act of brutality (1986 opinion, p. 13); that 
policy by itself was sufficient to guarantee the retention of a 
violent officer such as Allen. Second, "it was the policy of the 
Department never to reassign an officer from a position for 
disciplinary reasons" (Id. p. 12); that policy assured that a 
violent patrolman would not be transferred to a desk job in order 
to protect the public. Third, "it was Departmental policy never 
to show the [Police] Director complaints or internal reports 
regarding policy brutality". (.Id., p. 11); in order to insure 
that the head of the Department could always claim personal 
ignorance of violent incidents or officers, the form letters 
signed by the Director regarding acts of brutality never 
mentioned either the incident complained of or the name of the 
officer involved. (^d.). The city's supervisory and 
disciplinary system was structured to shield high ranking 
officials from knowledge of police misconduct, and to render 
those officials powerless to correct or prevent such incidents if 
those officials inadvertently learned of the existence of a 
problem.

The city does not contest the district court's finding as to 
the existence of these practices, or that court's conclusion that 
the practices had directly caused the constitutional violation



16
complained of. The city's argument appears to be that the 
Director of the Memphis Police Department was merely a minor 
errant employee "not authorized to make city policy". Counsel 
for the city asserts "there is nothing in the record to show that 
the Mayor", or "the city", "knew of any derelictions of duty on 
the part of the Director". (Brief for Defendant-Appellant Holt, 
P. 18). This contention is unavailing for two reasons.

First, the policies of neither dismissing nor transferring 
violent officers were not solely the work of the Director. The 
district court found that the no dismissal policy was embraced by 
the Memphis Civil Service Commission. (1986 opinion, p. 18). 
The no transfer rule was embodied in formal written contract, 
between the city and the police union. (Id-» PP- 12, 18).

Second, the actions of the Director of the Police Department 
simply cannot be dismissed as if they were the acts of some low 
level subordinate. It is a matter of common sense that, where 
the practices of a municipal police department are at issue, the 
director of that department will ordinarily be the person whose 
"edicts or acts may fairly be said to represent official policy". 
Monell, 436 U.S. at 694; cf Buckhart v. Randles, 764 F.2d 1196, 
1202 (6th Cir. 1985) (highest ranking official in the Office of 
the Clerk makes policy for that office). Pembaur makes clear 
that policymaking authority is not necessarily or ordinarily 
limited to the highest ranking legislative or executive official 
in a municipality:

Authority to make municipal policy may be ... delegated by
an official who possess such authority.... [M]unicipalities



17
often spread policymaking authority among various officers 
and official bodies.

89 L.Ed.2d at 465. The district court below correctly observed:
In cities and counties where policy making authority is 
often delegated in a casual manner far different from the 
formal allocation of responsibility at the higher levels of 
federal agencies, the actual authority traditionally and 
overtly exercised by a particular official will often be the 
best guide as to the nature of his or her role in framing 
official policies or taking official action. (1986 opinion,
p. 16).

In the instant case, the police department policy of deliberately 
insulating the Director from knowledge of violent officers was a 
policy that had long been approved and followed by the official 
holding the position of Director. (Id., pp. 10-11). The
district court correctly concluded that the Police Director had 
the authority to make official policy in that regard, and the 
city itself offered no claim or evidence to the contrary. (Id., 
p. 18)

Monell held that liability can also be imposed on a city 
where a constitutional violation was caused by a municipal
custom. 436 U.S. at 691 and n.56. The district court in the 
instant case found that there was just such a custom in the 
Memphis police department, "a code of silence binding patrolmen 
and supervisors alike not to testify against or report on their 
colleagues" (1986 opinion, p. 11; see also _id. at 18-19). The 
city asserts that "there was no proof in the record to indicate 
that this [code of silence] was sanctioned." (Brief for
Defendant-Appellant Holt, pp. 20-21.) The district court, 
however, concluded to the contrary that the code of silence "was



18
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." (1986 opinion, pp. 11-12). The city emphasizes that 
the Director eventually retained a "psychological service
program" to encourage officers to stop covering up
unconstitutional and unlawful misconduct by fellow officers. 
(Brief for Defendant-Appellant Holt, p. 21). But it is 
undisputed that neither the Director nor any other supervisory 
official ever took the simple step of directing police officers 
to disclose such information, or of disciplining an officer who 
refused to do so.

Having identified this custom and the three policies
described above, the district court concluded that "plaintiffs' 
constitutional injuries were sustained as a direct result" 
thereof. (1986 opinion, p. 19). The city does not deny that 
such policies would have inexorably led to assaults such as that 
which was inflicted on plaintiffs. A complete failure to 
discipline officers, like the complete failure to train the 
officers in Rymer v. Davis, 754 F.2d 198, 201 (6th Cir. 1985), 
was obviously "directly related to the ultimate abuse" at issue. 
Here, as in Rymer, there was clearly sufficient evidence to 
support the finding below that that abuse was caused by an 
official policy or custom.
III. THE DISTRICT COURT DID NOT ERR IN INCREASING THE AWARD OF

DAMAGES
Following its original finding of liability in 1981, the



district court referred the calculation of damages to the
magistrate. In making his recommendation, the magistrate
expressly assumed that the level of compensation for injuries
caused by unconstitutional police brutality must be exactly the
same as the compensation appropriate if the same physical injury
had been caused by a violent private citizen:

There is no justification for ruling that a person who 
receives a broken arm as the result of violation of his 
constitutional rights should be allowed to collect any 
more money than a person who suffers a broken arm as 
the result of common law assault and battery. The 
injury is the same . . . . [T]herefore the following
analysis will not consider the fact that the defendants 
are guilty of a constitutional tort to enhance the 
damages awarded. (Report and Recommendation, February 
8, 1982, p. 4)

The district court in 1982 apparently accepted this premise. 719 
F.2d at 154.

This court, relying on two distinct grounds, reversed the 
award of damages. First, this court held that the original 
damage award had failed to fully measure and redress the actual 
injury sustained:

[T]he Magistrate refused to allow plaintiffs' damage 
award . . .  to reflect the fact that the injury to 
their dignity, the insult to their person was greater 
because the assault was carried out by a police officer 
acting under color of law . . . .  We believe that the 
Magistrate erred in refusing to consider fully the 
nature of the wrong in measuring damages. In addition 
to providing compensation for plaintiffs who incur 
tangible physical or economic injury, the common law 
for centuries has permitted recovery for invasions of a 
wide array of intangible "dignity interests." 719 F.2d 
154-55.

The court concluded that in assessing compensatory damages the

19

district court could and should consider the fact that "there is



20
a qualitative and quantitative difference between" a tort by a 
private citizen and "an injury resulting from an intentional 
battery by a police officer." 719 F.2d 155. The court remanded 
the case for an evaluation of the extent to which such additional 
emotional or other non-physical injury might have occurred 
because the assault at issue had been committed by a police 
officer rather than a private citizen.

This court also asserted that, where a plaintiff's 
substantive constitutional rights were violated, the plaintiff 
was entitled to recover "substantial general money damages" as 
well as "special damages." 719 F.2d at 155. The precise meaning 
of this passage is not entirely clear. The opinion may refer to 
the common law practice of permitting awards for certain 
injuries, such as pain and suffering, without specific 
allegations and proof of the nature and amount of harm. On that 
reading the passage would simply reinforce the court's primary 
argument that a plaintiff may recover damages for the increased 
psychic injury which may occur when an assault has occurred under 
color of law. It is possible, on the other hand, that this 
portion of the court's opinion was advancing a second, quite 
distinct view, that substantive constitutional violations are 
somehow compensable per se, regardless of how much actual injury, 
if any, is actually caused.

The city suggests that the damages section of this court's 
1983 opinion was effectively overturned by Memphis Community 
School District v. Stachura, ____ U.S. 106 S.Ct. 2537, 91



21
L.Ed.2d 249 (1986). In Stachura the plaintiff had sought, in 
addition to compensatory damages for injuries suffered as a 
result of the constitutional violation, an additional award of 
damages "based on the abstract 'value' or 'importance' of 
constitutional rights." 91 L.Ed.2d at 261. The Court concluded 
that no such separate awards could be made based on "the abstract 
'value'" of the constitutional right violated. 91 L.Ed.2d at 
262 .

But Stachura expressly approved compensatory award for 
psychic or emotional injuries, and recognized that the nature and 
magnitude of that injury might be greater because 
unconstitutional conduct was involved. Compensatory damages, the 
Supreme Court noted, were not limited to monetary harms, but 
could also redress "such injuries as 'impairment of reputation 
..., personal humiliation, ... mental anguish and suffering" ... 
[and] mental and emotional distress." 91 L.Ed.2d at 258. That 
portion of this court's 1983 opinion requiring full redress for 
"injury to ... dignity" is entirely consistent with Stachura. 
The Supreme Court also held that the existence and nature of the 
constitutional violation involved might well be relevant to 
assessing the magnitude of the injury suffered by a plaintiff. 
"'[T]he elements and prerequisites for recovery of damages' might 
vary depending on the interests protected by the constitutional 
right at issue." 91 L.Ed. at 260. That holding is entirely 
consistent with this court's 1983 observation that the emotional 
distress and injury caused by police brutality may be different



22
and greater than the injury caused by an ordinary assault. 
Stachura also expressly approved awards of presumed damages "for 
an injury that is likely to have occurred but difficult to 
establish." 91 L.Ed. at 261.

The decision of the district court on remand does not 
violate the limitations imposed by Stachura. The district judge 
expressly acknowledged the holding of Stachura, observing that, 
although some appellate precedent had been disapproved by the 
Supreme Court, Stachura itself served "to underscore the need to 
provide fully compensatory damages for the violation of 
substantive constitutional rights." (1986 opinion, p. 20). The 
district court carefully reevaluated the evidence in light of 
Stachura and this court's 1983 decision, noting in particular the 
evidence of emotional as well as physical injury, as required by 
that 1983 opinion.

Even if Stachura does not operate as a legal bar to any 
increase in the original award of damages, the city asserts that 
the trial judge's "conclusion that the compensatory damage award 
recommended by the Magistrate is not fully compensatory and 
inadequate is without basis in fact . . ." (Brief for Defendant- 
Appellant Holt, p. 22). This contention misperceives the 
allocation of factfinding authority between a magistrate and a 
district judge. Where, as here, a magistrate's recommendation is 
challenged by a party, the district judge is not required or even 
permitted to defer to the views of the magistrate; on the 
contrary, 28 U.S.C. § 636(b)(1) requires the judge to "make a de



23
novo determination of those portions of the . . . recommendations
to which objection is made." The evaluation of the appropriate 
level of compensation for physical and emotional injuries is to 
some degree an unavoidably subjective process; an appellate court 
should not lightly interfere with the assessment made by a trial 
judge who has personally seen the resulting wounds and has heard 
the testimony of the victims who survived the sort of harrowing 
ordeal which occurred in this case. An award of damages may only 
be overturned on appeal if "the trial court abused its discretion 
by granting an award so large as to shock the judicial 
conscience." Thompson v. National Railroad Passenger Corp., 621 
F .2d 814, 827 (6th Cir.), cert. denied, 449 U.S. 1035 (1980).
The total award of $51,310.75 for the two victims of the assault 
at issue was well within the authority of the district court. 
Compare Rymer v. Davis, 754 F.2d 198, 201 (6th Cir. 1985) 
(upholding total verdict of $57,000 compensatory damages for 
single victim of police beating).
IV. THE DISTRICT COURT PROPERLY AWARDED COUNSEL FEES

The city's appeal of the award of counsel fees is controlled 
by Rule 8 of the Local Rules for the Western District of 
Tennessee:

8. Motions in Civil Cases
(a) Filing, Service and Response. . . . The response to

the motion and its supporting memorandum shall be filed 
within ten (10) days after service of the motion . . .

(b) Submission of Motion. Upon the filing of a motion and 
the timely filing of the response, if any, the motion 
shall be submitted to the Court for a ruling unless a



24
hearing has been requested and granted as hereinafter 
provided. Failure to respond timely may be deemed good 
grounds for granting the motion.

(c) Hearing of Motion. If a hearing on the motion is 
desired by counsel, such hearing should be requested in 
the motion or response; if the Court determines that 
such hearing would be helpful or necessary, the Court 
will set the date and time of the hearing and the Clerk 
will notify all counsel.

On July 25, 1986, following this court's remand, plaintiffs-
appellees submitted a detailed written application for counsel 
fees, together with appropriate supporting documents. The city 
did not file, as required by Rule 8(a), any response to this 
application; nor did the city request, as it could have under 
Rule 8(c), that a hearing be held on the fee application. In the 
absence of any such response or request for a hearing, Rule 8(b) 
clearly authorized the district judge to pass on the pending 
application.

In this court, however, the city now objects that "it would 
only be fair to hold a hearing in connection with the award of 
attorneys fees." (Brief for Defendant-Appellant Holt, pp. 22- 
23). The district judge might well have chosen to hold such a 
hearing had the city requested it in the summer of 1986, when the 
fee application was still pending. But surely the district judge 
was not required to hold such a hearing in the face of the city's 
calculated decision neither to ask for a hearing nor to contest 
the pending fee application. In this court the city objects to 
resolving the fee application on the basis of affidavits, but 
when the application itself was presented to the court below the 
city made no timely request to cross-examine the attorneys who



25
had executed those affidavits. Under these circumstances it can 
hardly be said that the district court "abused its discretion in 
failing to hold a hearing" that the city itself deliberately 
chose not to request in a timely manner. (Brief for Defendants- 
Appellants, p. 22). If this court were now to order a hearing 
after the city itself refused to request one, that order would 
serve as an open invitation to attorneys throughout the circuit 
to disregard the requirements of the local rules.

The district court's action was particularly appropriate in 
view of the Supreme Court's admonition that a "request for 
attorney's fees should not result in a second major litigation." 
Blum v. Stenson, 465 U.S. 886, 902 n. 19 (1984); Hensley v. 
Eckerhart, 461 U.S. 424, 437 (1983). The Supreme Court has made 
clear a defendant cannot challenge on appeal a fee application to 
which it did not object in the district court. In Blum, as here, 
the defendant

failed to submit to the District Court any evidence 
challenging the accuracy and reasonableness of the 
hours charged ... or the facts asserted in the 
affidavits submitted by [plaintiffs'] counsel. [The 
defendant] therefore waived [its] right to an 
evidentiary hearing in the District Court ... [and its] 
right to challenge in this Court the District Court's 
determination that the number of hours billed were 
reasonable....

Blum v. Stenson, 465 U.S. at 892 n. 5. Even timely defense 
objections and requests for discovery or a hearing need not be 
heeded unless they are reasonably specific in nature. National 
Ass'n of Concerned Veterans v. Secretary of Defense, 675 F .2d
1319, 1329-30, 1337-38 (D.C. Cir. 1982).



26
The only substantive objection advanced by the city to the 

fee award in this case is that fees were awarded to several 
attorneys. (Brief for Defendants-Appellants, p. 23). No such 
objection was made when the fee application was first filed, and 
we doubt whether it can be raised at this juncture. The district 
court's award, in any event, is entirely reasonable. Although 
the plaintiffs have been represented by different attorneys over 
the course of the nine year history of this litigation, each 
attorney has handled a distinct part of the litigation. At each 
phase of the proceedings only a single attorney was primarily 
responsible for handling the case. For example, Nancy Sorak, who 
was originally retained by the plaintiffs and conducted the 
initial investigation, billed no time after April, 1979.® Philip 
Arnold, who actually tried the case, has requested no fees after 
1983 except for 2.25 hours related to preparation of the fee 
request.6 The fee application of Eric Schnapper, who handled the 
case in the Supreme Court, is limited to an 11 month period 
between the preparation of the certiorari petition and the 
presentation of oral argument in Washington, D.C.7 The city does 
not suggest that the work of plaintiffs' counsel was either 
wasteful or duplicative; on the contrary, as the nature of the 
issues presented by this case evolved over the nine years it was 
pending, the utilization of attorneys with particular relevant

5
6
7

Affidavit of Nancy Sorak, attachment, p. 3. 
Affidavit of G. Philip Arnold.
Affidavit of Eric Schnapper, appendix C.



27
expertise and experience undoubtedly increased the efficiency of 
the preparation of the case. Northcross v. Board of Ed. of
Memphis City Schools, 611 F.2d 624, 637 (6th Cir. 1979).

Although the city's failure to respond to the fee 
application was under Local Rule 8(b) sufficient ground for 
granting the application, the district court did not rule on that 
basis. The district judge carefully reviewed both the hours 
billed and the requested hourly rate. Despite the fact that the 
city had not opposed plaintiffs' request for a 10035 upward 
adjustment to account for the contingency factor, the district 
court rejected that request, limiting the contingency adjustment 
to 25%. (1986 opinion, pp. 25-26). The total fee actually
awarded by the district court was thus somewhat less than two- 
thirds of the amount which plaintiffs had initially requested.

CONCLUSION
For the above reasons the judgment and opinion of the 

district court should be affirmed.
Respectfully submitted,

JULIUS LeVONNE CHAMBERS
ERIC SCHNAPPER

NAACP Legal Defense & Educational 
Fund, Inc.

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

WILLIAM E. CALDWELL 
P.0. Box 60996 
Fairbanks, Alaska 99706 
(907) 452-5181



28
ELIZABETH A. McKANNA 

686 West Clover Drive 
Memphis, Tennessee 38119 
(901) 395-3441

Counsel for Plaintiffs-Appellees



No. 83-1622

In the Supreme Court of the United States
October Term, 1984

ELIZABETH BRANDON, et al, 
Petitioners,

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

Respondents.

On W rit of Certiorari to the U nited States 
Court of Appeals 

for the S ixth  Circuit

BRIEF FOR RESPONDENT

Henry L. Klein

Staff Attorney - Attorney of Record 
for Respondent 

1500 First Tennessee Building 
Memphis, Tennessee 38103 
901/523-2363

Clifford D. P ierce, Jr.
City Attorney

Charles V. H olmes 
Senior Assistant City Attorney

P aul F. Goodman 
Assistant City Attorney 
314-125 North Mid-America Mall 
Memphis, Tennessee 38103 

(901) 528-2614 
Attorneys for Respondent

la



QUESTIONS PRESENTED

I.

Was the Court of Appeals correct in holding that a po­
lice supervisory official was entitled to a qualified im­
munity defense based upon good faith?

U.

Was this case tried on the proper standard to impose 
liability against the Police Director in his official ca­
pacity?

m.
Does the decision of the Court of Appeals create a 

conflict among the Circuits?

2a



II

The plaintiffs in this action are Elizabeth A. Brandon 
and James D. Muse. The defendants are Robert J. Allen 
and E. Winslow Chapman, Director of Police, City of 
Memphis. While the case was pending in the Court of 
Appeals, Petitioners sought to substitute John D. Holt 
for E. Winslow Chapman by operation of Rule 43(c)(1), 
Federal Rules of Appellate Procedure.

LIST OF PARTIES

3a



F

in

Questions Presented ........................................................  x
List of Parties ............................................    n
Table of Authorities ..........................................................  iv
Opinions Below ..................................................................  1
Jurisdiction .......................................................................... 2
Statement of the Case ..................    2

(a) Proceedings Below .............................................  2
(b) The Incident of March 5, 1977, Involving Of­

ficer A llen ............................................................  4
(c) Background of Officer A llen..............................  4
(d) Role of Director Chapman.................................. 6

Summary of Argument ....................................................  8

Argument—

I. The Court of Appeals was correct in holding 
that a police supervisory official was entitled 
to a qualified immunity defense based upon 
good faith ............................................................  10

II. The case was not tried on the proper stan­
dard to impose liability against the Police
Director in his official capacity ........................  16

III. The decision of the Court of Appeals does not
create a conflict among the Circuits ..................  20

Conclusion .........................................................................  21

TABLE OF CONTENTS

4a



IV

TABLE OF AUTHORITIES

Cases:
Adams v. Pate, 445 F.2d 105 (7th Cir.1971) ..................  12
Amen v. Dearborn, 532 F.2d 554 (6th Cir.1976) ..........  10
Batista v. Rodriguez, 702 F.2d 393 (2d Cir.1983) ....... 16
Berry v. McLemore, 670 F.2d 30 (5th Cir.1982) ..........  19
Bonner v. Coughlin, 545 F.2d 565 (7th Cir.1976) ..........  11
Brandon v ; Allen, 719 F.2d 151 (6th Cir.1983) ..............  1
Brandon v. Allen, 516 F.Supp. 1355 (W.D.Tenn.1981) .... 1
Brown v. U.S., 486 F.2d 284 (8th Cir.1973) ..................  11
DeVasto v. Faherty, 658 F.2d 859 (1st Cir.1981) ....... 19
Delaney v. Giarrusso, 633 F.2d 1126 (5th Cir.1981) ..... 16
Familias TJnidas v. Briscoe, 619 F.2d 391 (5th Cir.

1980) .................................................................................  14
Harris v. City of Roseburg, 664 F.2d 1121 (9th Cir.

1981) .................................................................................  19
Howell v. Cataldi, 464 F.2d 272 (3d Cir.1972) .......... 11
Hughes v. Blankenship, 672 F.2d 403 (4th Cir.1982),

rehearing and rehearing en banc denied .................. 14,18
Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1913) ..........  12
Key v. Rutherford, 645 F.2d 880 (10th Cir.1981), re­

hearing denied .............................................................. 14,18
Knipp v. Weikle, 405 F.Supp. 782 (N.D.Ohiol9 (5) ....... 12
Kostka v. Hogg, 560 F.2d 37 (1st Cir.1977) ..................  11
Leite v. City of Providence, 463 F.Supp. 585 (D.R.I.

1978) ................................................................................. 11
Lewis v. Kugler, 446 F.2d 1343 (3d Cir.1971) ..........  17
McLaughlin v. City of LaGrange, 662 F.2d 1385 (11th 

Cir.1981), rehearing and rehearing en banc denied 
(1982) ............................................................................... 19

5a



V

Monell v. New York Department of Social Services,
436 U.S. 658 (1978) ............................10,12,13,15,16,

Moore v. Buckles, 404 F.Supp. 1382 (E.D.Tenn.1975) .... 
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) .... 
Owen v. City of Independence, 445 U.S. 622 (1980) ....9,

19,
Page v. Sharpe, 487 F.2d 567 (1st Cir.1973) ..............
Polk County v. Dodson, 454 U.S. 312 (1981) ..............
Procunier v. Navarette, 434 U.S. 555 (1978) ................
Richardson v. City of Indianapolis, 658 F.2d 494 (7th

Cir.1981)...........................................................................
Scheuer v. Rhodes, 416 U.S. 232 (1974) ......................
Shannon v. Lester, 519 F.2d 76 (6th Cir.1975) ..........
Smith v. Ambrogio, 456 F.Supp. 1130 (D.Conn.1978) ....
Tyler v. Woodson, 597 F.2d 643 (8th Cir.1979) ...........
Van Ooteghem v. Gray, 628 F.2d 488 (5th Cir.1980) .... 
Walters v. City of Ocean Springs, 626 F.2d 1317 (5th

Cir.1980)............. - ..........................................................
Williams v. Vincent, 508 F.2d 541 (2d Cir.1974) .......
Wood v. Strickland, 420 U.S. 308 (1975), rehearing 

denied 421 U.S. 921 .......................................................

Constitutional and Statutory Authorities:

U.S. Constitution Amend. XIV ....................................... 2,
28 U.S.C. §1254(1) ............................................................
28 U.S.C. §1331 ..................................................................
42 U.S.C. §1983 ............................................................ 2, 12,
42 U.S.C. §1988 ..................................................................2,

Other Authorities

3B Moore’s Federal Practice tffl25.01[13], 25.09[3]

20
12
13
14,
20
1 1
16
15

19
18
12
17
19
14

19
1 1

15

10
2

10
16
18

15

6a



No. 83-1622

In the Supreme Court of the United States
October Term, 1984

ELIZABETH BRANDON, et al, 
Petitioners,

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

Respondents.

On  W rit of Certiorari to the U nited S tates 
Court of Appeals 

for the S ixth Circuit

BRIEF FOR RESPONDENT

OPINIONS BELOW
The decision of the United States Court of Appeals for 

the Sixth Circuit is reported at Brandon v. Allen, 719 F.2d 
151 (6th Cir.1983). The Order Denying Petition for Re­
hearing en Banc, which is not reported, was filed Decem­
ber 2, 1983. A. 44a.1 The Findings of Fact, Conclusions 
of Law, and Order of the District Court are reported at 
516 F.Supp. 1355 (WD.Tenn.1981).

1. Citations to the opinions below are to the appendix to
the petition for a writ of certiorari and are designated as A.........
Citations to the record below are to the Joint Appendix and are 
designated as App..........

7a



2

JURISDICTION

The Judgment of the Court of Appeals was entered on 
October 11, 1983. The Petition for Rehearing en Banc was 
denied on December 2, 1983. The Petition for Writ of Cer­
tiorari 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).

STATEMENT OF THE CASE

A. The Proceedings Below
This action was commenced on February 22, 1978, by 

plaintiffs Elizabeth A. Brandon and James S. Muse seek­
ing damages for assault and'battery and declaratory relief 
under 42 U.S.C. §§1983, 1988, and the Fourteenth Amend­
ment of the Constitution, arising out of an incident on 
March 5, 1977, involving Memphis Police Officer Robert 
J. Allen. Complaint Paragraph 1; App. 3a. Named as 
defendants were Wyeth Chandler, Mayor of Memphis, 
Tennessee; E. Winslow Chapman, Director of Police, and 
Robert J. Allen, an employee of the Memphis Police De­
partment. Complaint Paragraphs 4, 5, 6; App. 5a, 6a. The 
Complaint alleges that defendants Chapman and Chandler 
knew or should have known that Officer Robert J. Allen 
was not a good and proper person to be entrusted with 
the authority and responsibility of a police officer. Com­
plaint Paragraph 26; App. 10a. The Complaint further 
alleges that defendants Chapman and Chandler acted in 
a reckless, willful, and wanton manner and that, by their 
continued employment of defendant Allen, they deprived 
plaintiffs of due process of law under the color of state 
law. Complaint Paragraph 27; App. 11a.

8a



3

On July 13, 1978, pursuant to a Motion for Summary 
Judgment filed by defendants Chandler and Chapman, an 
Order was entered granting Summary Judgment for de­
fendant Chandler. Because there was some question 
whether defendant Chapman knew of any dangerous pro­
pensities of Allen, his motion was denied. App. 13a-18a. 
Due to his failure to appear and answer the charges in 
the Complaint, a default judgment was entered against 
defendant Robert J. Allen. App. la.

The case went to trial against defendant Chapman 
without intervention of a jury. Both parties to this case 
agreed that Mr. Chapman had no actual knowledge of 
Officer Allen’s dangerous propensities. A. 20a. The sole 
issue before the Court was whether Director Chapman 
should have known that Officer Allen’s dangerous pro­
pensities created a threat to the rights and safety of cit­
izens. A. 20a. Following the trial, the case was taken 
under advisement, and on July 8, 1981, the Court entered 
an Order finding that because Director Chapman should 
have known of Officer Allen’s dangerous propensities and 
because he should have taken steps to dismiss Officer Allen 
from the police force, his unjustified inaction was the cause 
of plaintiffs’ damages and injuries. A. 20a, 21a, 26a.

A Judgment was entered against both Chapman and 
Allen, and the Court referred the case to the Magistrate 
for a determination of damages. A. 27a, 28a. The Magi­
strate filed a Report and Recommendation. App. 20a-34a. 
Exceptions were filed by plaintiffs and defendant Chap­
man. On May 4, 1982, the District Judge entered an Order 
Approving and Adopting the Report and Recommendation 
of the Magistrate. App. 35a.

Both plaintiffs and defendant Chapman appealed. 
App. 2a. The Court of Appeals, Judges Lively, Merritt and

9a



4

Peck reversed, holding that the District Court erred by 
finding Director Chapman liable for the acts of Officer 
Allen. A. 33a. The Court found that Chapman acted in 
good faith and was entitled to immunity. A. 38a. Peti­
tion for Rehearing en Banc was denied. A. 45a-47a. Peti­
tion for Certiorari was filed on March 30, 1984, and Cer­
tiorari was granted on May 21, 1984.

B. The Incident of March 5, 1977 Involving Officer 
Allen

Respondent adopts the statement of facts relative to 
this incident set out in the opinion of the United States 
Court of Appeals, decided and filed October 11, 1983. A. 
31a-33a.

C. Background of Officer Allen
A review of Officer Allen’s disciplinary resume in­

dicated that there were only two matters which reflected 
either unnecessary force or physical abuse. Tr. 221. On 
a prior occasion Allen, who had been assigned to the city 
jail, became involved in an altercation with a prisoner. 
Disciplinary action was taken because Allen acted in vio­
lation of a departmental regulation which required that 
at least two officers be present prior to transferring a 
prisoner from one cell to another. Allen violated that 
regulation by attempting to handle a prisoner alone, result­
ing in the altercation and minor injuries. Tr. 223-224. 
The physical abuse complaint from Mrs. Jean Deblock 
could not be substantiated and was not sustained. Tr. 221, 
222. Mrs. Deblock testified at the trial that she was abused 
and threatened by Allen after being stopped in her car on 
an interstate highway. After Allen gave her a ticket 
charging her with speeding and no driver’s license, she 
testified she called him a “rotten punk,” and that he then

10a



5

physically abused her. Tr. 120. She was then arrested 
and taken to jail. Tr. 120. The case went to City Court 
and Mrs. Deblock was fined and reprimanded by the Judge 
for using abusive language and not cooperating with the 
officers. Tr. 128, 137, 139. In 1975 Allen was involved in 
an incident in which he shot and killed a burglary suspect 
caught in the act of stealing television sets from a Holi­
day Inn. Tr. 243-244. The shooting was determined by 
the Police Department to be justifiable and, after presenta­
tion to the Attorney General as to whether it was to go 
to the Grand Jury, no action was taken. Tr. 157.

Former police officer Joe Davis testified that he had 
expressed his concerns about Officer Allen to his superior, 
Captain Moore, by telling Moore that Allen had bragged 
about the shooting incident in 1975 and also about the use 
of his “killing gloves.” Davis told the captain that he did 
not want to ride with Allen any more as a fellow officer. 
Tr. 158. Captain Moore denied that Davis ever expressed 
concern to him about Allen or that he had objected to 
riding with him. Tr. 242-243. Moore was familiar with 
the shooting incident in 1975 involving Allen but did not 
recall Davis ever telling him of Allen’s bragging about 
the incident or the use of his black gloves. Tr. 243.

Other supervisory officers who had Allen under their 
command testified that they had no problems with him 
other than two or three automobile accidents. Tr. 230. 
They did not notice anything unusual about him in the 
performance of his duty or in his behavior. Tr. 237. As 
an officer, he was rated average or a little above. Tr. 230. 
Both defendant Chapman and Deputy Director Holt tes­
tified that nothing in his disciplinary resume would have 
given them cause to discharge Allen prior to the incident 
complained of in this cause. Tr. 192, 222. There were 
several commendations in Allen’s file both from inside the

11a



6

department and from citizens. Tr. 217-218. In February 
of 1977, just a month prior to the incident involved in this 
case, he assisted a lady who was stranded on the interstate 
at night and took her home. Tr. 218-219. On another 
occasion he was commended for saving the life of a motor­
ist who was involved in a serious accident on the inter­
state; while off duty he broke into a burning car to save 
the driver who was trapped and unconscious. Tr. 219, 
There were other commendations from commanding of­
ficers in regard to job performance, arrests, and the manner 
in which they were handled. Tr. 219-220.

D. Role of Director Chapman
Defendant Chapman became Police Director of the 

Memphis Police Department in September of 1976, ap­
proximately six months before the incident of March 5, 
1977. Tr. 167. Prior to Chapman’s appointment, the In­
ternal Affairs Bureau, which handled complaints against 
police officers, answered directly to the Chief of Police. Tr. 
170. Director Chapman began to make changes through­
out the department during this six-month period, one of 
which was to institute a procedure whereby Internal Af­
fairs would answer directly to him. Tr. 172, 173. The 
Commander of Internal Affairs became a direct advisor to 
the Director. Tr. 176. Complaints involving serious in­
juries with respect to the use of firearms, aggravated cases 
of alleged brutality, allegations of graft or corruption, 
and other similar matters would be called to the attention 
of the Director. Tr. 175. The routine matters would be 
handled at the precinct level by the precinct commander. 
Tr. 176. The more serious matters would be handled at 
the Deputy Chief’s level, and those deemed most serious 
would be handled at the Director or Deputy Director’s 
level. Tr. 176. A case such as the one involving the in-

12a



7
cident of March 5, 1977, would have been heard at the high­
est level. Tr. 177. Under the procedure set up by Director 
Chapman there was nothing about Allen’s record prior to 
this incident which, if called to his attention, would have 
required that any additional action be taken. Tr. 177. In 
some cases involving officers with questionable records, 
a transfer could alleviate the situation; however, prior to 
1980, the Director was prohibited from taking such action 
because the union contract prohibited such transfers. Tr. 
192. This system was changed at Director Chapman’s in­
sistence with good results, because he felt that such trans­
fers could effect a positive change in an officer. Tr. 193. 
The Director felt so strongly about the needed changes that 
he insisted on being a part of the labor negotiating team 
and was a signatory to the contract. . Tr. 199. Director 
Chapman implemented ĉhanges to attempt to correct the 
problem within the Memphis Police Department of of­
ficers who were unwilling to come forward and make or 
confirm allegations against a fellow officer. He estab­
lished a psychological service program for officers. Tr. 
204. He established certain reporting and disciplinary 
procedures and tightened the lines of responsibility in 
order that first line supervisors were better able to identify 
and deal with problems with individual officers. Tr. 204. 
Chapman conceded that in the history of the Memphis 
Police Department there were many things that he did 
not agree with or disapproved of and stated that he aspired 
to become Police Director in order that he could institute 
changes. Tr. 208. The Trial Court in its Order commented 
on the performance by Director Chapman:

The disposition of this case, upon all of the evidence 
presented at the hearing, does not blind the Court to 
the fine record of Mr. Chapman. Neither is the Court 
unaware that the Memphis Police Department is

13a



8

staffed by very fine men and women. This Court can 
note with satisfaction the progress made by that De­
partment under the progressive Directorship of Mr. 
Chapman. A. 26a.

SUMMARY OF ARGUMENT

The decision of the Court of Appeals was correct and 
should be affirmed. As the Court of Appeals found, this 
was a lawsuit against a Police Director individually, de­
spite plaintiffs’ assertions they sued the Director in his 
official capacity. The Complaint did not name the City as 
a defendant, nor did it specify in what capacity defendant 
Chapman was sued. For that matter, there was never any 
attempt to bring the City in as a party defendant. Yet 
throughout the case, Petitioners have participated in an 
exercise in legal gymnasics to label it as an official capacity 
action in an apparent attempt to reach the “deep pocket” 
of the City. An examination of the language in the Com­
plaint leaves little doubt that it was an action against the 
Police Director individually. Any doubt was clarified in 
the Court’s order on the Motion for Summary Judgment 
and the Court’s framing of the issue which controlled the 

/  trial of the case. Unfortunately the Trial Judge reached 
an inconsistent conclusion in holding defendant Chapman 
liable in his official capacity, based upon a finding on an 
issue which could only apply to an action against an in­
dividual. If the case had been truly an official capacity 
action, it would have to have been tried in accordance with 
the Monell standard. Since it was an individual capacity 
lawsuit, defendant Chapman was entitled to a good faith 
immunity defense.

This case demonstrates not only the confusion that can 
arise from trying to distinguish between individual capacity

14a



9

and official capacity actions but the need for some clari­
fication by the Court. If a party is seeking to impose lia­
bility on a municipality or other governmental entity, such 
should appear clearly in the Complaint. Furthermore, if 
the entity is to be subject to such an action, it should 
be a party to the litigation. Obviously it is important in 
the defense of such a case to be put on notice as to the 
nature of the action, the relief sought and against whom 
the relief is being sought, in order that a proper defense 
can be maintained. This is especially significant since 
a good faith defense is not available to municipalities 
in view of the Court’s holding in Owen v. City of Inde­
pendence, 445 U.S. 622 (1980).

15a



10

argument

the court of a ppea ls  was correct in 
holding that a police supervisory  o ffi.
ClifWAS ENTITLED TO A QUALIFIED IMMUNITY
d e fe n se  based  upon  good faith .

1. The real question involved in this case is whether 
defendant Chapman was in fact sued in his official ca­
pacity and whether the action was maintained against him 
in his official capacity or individually. The Complaint in 
this cause named as defendants Robert J. Allen an em­
ployee of the Memphis Police Department; Wyeth Chan­
dler, Mayor of Memphis, and E. Winslow Chapman, Di­
rector of Police. App. 4a, 5a. THe City of Memphis was 
not named as a defendant nor was there ever any at­
tempt to amend the pleadings to include the City. Al­
though the Complaint was filed on February 22, 1978, 
which was prior to this Court’s decislon m Monell v New 
York Department of Social Services, 436 U.S. 6o8 (19/8), 
there was authority existing at the time which would per­
mit a direct action against a municipality pursuant to 28 
U S C  §1331 and the Fourteenth Amendment to the Con- 
»  Amen Dearborn, 532 F.2d 554 (6th O r.

1976).
The Complaint did not state specifically whether Chan­

dler and Chapman were sued in their individuall capacities, 
official capacities, or both. The alleged basis for the lia­
bility of Chandler and Chapman was that they knew or 
should have known that Robert J. Allen was not a good and 
proper person to be entrusted with authority, power and 
responsibility of a police officer,” “that by their con-

16a



11

tinued employment of Officer Robert J. Allen [they] acted 
in a manner which was reckless, willful and wanton against 
the plaintiffs,” and that “by this continued employment of 
Officer Robert J. Allen, defendants Chandler and Chapman 
have intentionally and under color of state law deprived 
the plaintiffs of due process of law.” Complaint Para­
graphs 25, 26; App. 10a, 11a. These are simple allegations 
of negligent retention involving a single incident, typical 
of the allegations found in cases brought against super­
visory personnel in their individual capacity. Kostka v. 
Hogg, 560 F.2d 37 (1st Cir.1977); Bonner v. Coughlin, 545 
F.2d 565 (7th Cir.1976); Williams v. Vincent, 508 F.2d 541 
(2d Cir.1974); Howell v. Cataldi, 464 F.2d 272 (3d Cir. 
1972); Page v. Sharpe, 487 F.2d 567 (1st Cir.1973); Brown 
v U.S., 486 F.2d 284 (8th Cir.1973); Leite v. City of Provi­
dence,’ 463 F.Supp. 585 (D.R.I.1978). The allegations in 
the Complaint made no real distinction between Chandler 
and Chapman, other than that one was Mayor and the 
other Police Director. App. 10a, 11a. Both were described 
as supervisory personnel.

2. Pursuant to a motion for summary judgment on 
behalf of both Chapman and Chandler, the Court entered 
an Order granting Chandler’s motion; although Chapman’s 
motion was denied, the Court granted leave to file a re­
newed motion if additional discovery showed that there 
was no genuine issue as to Chapman’s lack of knowledge 
of Officer Allen’s dangerous propensities. App. 18a. It 
was obvious that the Court was considering Chapman and 
Chandler together in their capacity as supervisory per­
sonnel. The issues as to both were exactly the same. If 
this was in fact an official capacity lawsuit, there would 
have been no basis for granting a summary judgment for 
either of these defendants based on the issues before the 
Court. Certainly in an official capacity lawsuit, Chandler

17a



12

who was the Mayor of the City would have been the more 
likely representative and the individual who would have 
had more influence on the policies of the City. Further­
more it is apparent that the Court in ruling on the motion 
considered Chandler and Chapman in their individual ca­
pacities when it held as follows:

A §1983 action is not maintainable on a respondeat 
superior theory against superior officers who have 
neither caused nor participated in alleged deprivations 
of constitutional rights committed by subordinates. 
Jennings v. Davis, 476 F.2d 1271 (8th Cir.1973); Adams 

Pate, 445 F.2d 105 (7th Cir.1971); Moore v. Buckles,
404 F.Supp. 1382 (E.D.Tenn.1975); Knipp v. Weikle,
405 F.Supp. 782 (N.D.Ohiol975). See Shannon v.
Lester, 519 F.2d 76, 81 (6th Cir.1975), indicating that 
the Sixth Circuit has yet to rule on this question. 
Cf. Monell v. Dep’t of Social Services, 436 U.S. 658, 
46 U S L W  4569 (June 9, 1978) (Monell held that a 
municipality could not be held liable under §1983 on 
a strict respondeat superior theory. The rationale of 
this holding would seem to preclude respondeat su­
perior liability for superior officials, as w ell)----- App.
16a, 17a.

A review of the cases cited by the District Judge in his 
Order reveals that they were basically actions against 
supervisory personnel in their individual capacities.

3. In the trial of the case the sole issue was whether 
Director Chapman should have known that Officer Allen s 
dangerous propensities created a threat to the rights and 
safety of citizens. A. 20a. Petitioners in their brief place 
emphasis on the fact that, in their response to the motion 
for summary judgment filed by Chapman and in counsels 
opening statement, they maintained that Director Chap-

18a



13

man was being sued in his “official capacity.”2 3 In spite 
of these assertions the record is clear that there was never 
any effort to amend the pleadings to specifically assert that 
this was an official capacity action or to redefine the issues. 
This becomes especially significant in view of the standards 
by which an official capacity lawsuit must be tried. See 
Monell v. New York Department of Social Services, supra, 
436 U.S. at 694.

The Trial Court concluded that Director Chapman 
should have known of Allen’s dangerous propensities and 
found him liable in his “official capacity.” A. 21a. Its 
opinion is inconsistent in that it delineates the issue as 
being what Director Chapman should have known and 
then makes a finding that he is liable in his official capacity, 
clearly ignoring the Monell standards which were in effect 
at the time of the decision.

4. After the Trial Judge made his findings he referred 
the case to the Magistrate for a hearing on the issue of 
damages. A. 27a, 28a. Petitioners make a point that, in 
his Reply Brief on the issue of damages, counsel for de­
fendants relied upon the Trial Judge’s decision to avoid an 
award of punitive damages citing Newport v. Fact Concerts, 
Inc., 453 U.S. 247 (1981), and that this argument advanced 
by defendant’s counsel made no sense unless he too under­
stood that the award against Chapman in his official 
capacity was in fact an award against the City of Memphis. 
The Court had ruled the Director was liable in his official 
capacity, and the Magistrate was making his findings based 
upon this ruling. It would be naive indeed to believe that 
counsel would come forward and concede that his client

2. Brief for Pet., 19, 20, 21.
3. Brief for Pet., 24.

19a



14
was subject to punitive damages because he was individ­
ually liable and not liable in an official capacity. De­
fendant Chapman excepted to the findings of the Magis­
trate because it was his position he was not liable and 
therefore not subject to any award of damages.4

5. The position taken by the plaintiffs before the 
Court of Appeals was that since this is an action for dam­
ages against a party in his official capacity, it is in essence 
an action against the governmental entity of which the 
officer is an agent. Hughes v. Blankenship, 672 F.2d 403, 
406 (4th Cir.1982); Van Ooteghem v. Gray, 628 F.2d 488, 
496 (5th Cir.1980). In other words, the City of Memphis 
was liable for the acts of Director Chapman. Furthermore, 
they contended that since Chapman was acting in his 
official capacity he was not entitled to qualified immunity. 
Familias Unidas v. Briscoe, 619 F.2d 391, 403 (5th Cir.1980); 
Key v. Rutherford, 645 F.2d 880, 883 n.5 (10th Cir.1981), 
rehearing denied.

The Court of Appeals disagreed with plaintiffs’ rea­
soning that Chapman was not entitled to a good faith de­
fense, stating that:

The plaintiffs’ argument that the qualified immunity 
is inapplicable simply because they sued Chapman 
in his official capacity is unavailing. Under Owen 
v. City of Independence, 445 U.S. 622 (1980), a mu­
nicipality is not entitled to claim the qualified im­
munity that the city’s agents can assert. But this is a 
suit against an individual, not the city. In reality, 
plaintiffs are attempting to amend their complaint so 
as to treat the Police Director as though he were the 
City in order to avoid the qualified immunity which

4 Exception of Defendant E. Winslow Chapman to Report 
and Recommendation of U. S. Magistrate filed February 12, 1982.

20a



15

shields Director Chapman. Such an argument is 
without support in precedent or reason. (Emphasis 
supplied) A. 39a.

The findings of the Court of Appeals were correct. 
Regardless of the label placed upon this set of facts by the 
Trial Court and plaintiffs, this is nothing more than an ac­
tion against an individual who at the time was acting as an 
official of the city. This is evident from the way the case 
was originally filed and the way it was tried. To hold the 
city liable in this instance would be to find it liable be­
cause it is the employer of Director Chapman. It is clear 
that a municipality is not liable under the theory of re­
spondeat superior for injuries inflicted solely by its agents 
or employees. Monell v. New York Department of Social 
Services'supra. Under the circumstances, Director Chap­
man was entitled to immunity based upon good faith. 
Procunier v. Navarette, 434 U.S. 555 (1978); Wood v. 
Strickland, 420 U.S. 308 (1975), rehearing denied 421
U.S. 921.

6. After the notice of appeal was filed in this cause 
on May 20, 1982, Petitioners sought to invoke Rule 25(d), 
Federal Rules of Civil Procedure, and Rule 43(c), Federal 
Rules of Appellate Procedure, to substitute the current 
Director of Police, John D. Holt, for Chapman. This was 
an obvious attempt to lend credence to their argument that 
this was an official capacity lawsuit. Petitioners contend 
that the decision of the Court of Appeals for all practical 
purposes abrogates these rules. This would be true if this 
was in fact an official capacity case; however, the finding 
that this was an action against an individual abrogates 
application of these rules here.5

5. 3B Moore’s Federal Practice, paragraph 25.09 [3]; para­
graph 25.01 [13].

21a



16
II.

THE CASE WAS NOT TRIED ON THE PROPER 
STANDARD TO IMPOSE LIABILITY AGAINST THE 
POLICE DIRECTOR IN HIS OFFICIAL CAPACITY.

If, in fact, an action for damages against a party in 
his official capacity is in essence an action against the 
governmental entity of which the officer is an agent, it 
necessarily follows that the same standards which apply 
to a direct action against a municipality would apply in 
this case. In deciding that municipalities may be sued 
directly under §1983 for constitutional deprivations, the 
Court in Monell held that the liability imposed must be 
based upon a governmental policy or custom which is 
proved to be “the moving force of the constitutional viola­
tion.” 436 U.S. at 694. In order to hold a city liable under 
§1983 for the unconstitutional actions of its employees, a 
plaintiff is required to plead and prove three elements: 
(1 ) an official policy or custom that (2) causes the plain­
tiff to be subjected to (3) a denial of a constitutional right 
(emphasis supplied). Batista v. Rodriguez, 702 F.2d 393 
(2d Cir.1983). If the allegations with regard to official 
policy are insufficient the case cannot be maintained. 
Polk County v. Dodson, 454 U.S. 312, 326 (1981); Delaney 
v. Giarrusso, 633 F.2d 1126 (5th Cir.1981). There is no 
allegation in the original Complaint with regard to policy 
or custom, and, even though the original Complaint pre­
dates Monell, there was never any attempt to amend to 
conform with Monell. As stated herein, Monell was de­
cided while this case was pending and before it came to 
trial. There can be no question that counsel for Petitioner 
was aware of Monell, as is reflected in the pretrial plead­
ings.* Furthermore, not only is there a requirement for

6. Brief for Pet., 19.

22a



17

such an allegation in the pleadings, but such allegations 
must be in some detail. In Smith v. Ambrogio, 456 F.Supp. 
1130 (D.Conn. 1978), the Court enunciated the pleading 
requirements beginning at page 1137:

The standard for municipal liability predicated on 
inaction of senior personnel must be frankly acknowl­
edged as difficult to meet. A claim of this sort should 
not be initiated unless there is a sufficient factual basis 
to justify the extensive litigation that such a claim en­
tails. The typical §1983 suit against a police officer for 
his allegedly unconstitutional action generally involves 
a single episode. Discovery and trial are entirely 
manageable. But a claim of municipal liability based 
on an alleged policy reflected by a pattern of prior 
episodes will inevitably risk placing an entire police 
department on trial. Sweeping discovery will be 
sought to unearth episodes in which allegedly similar 
unconstitutional actions have been taken, and the trial 
will then require litigation of every episode occurring 
in the community that counsel believes can be shown 
to involve a similar constitutional violation. Even 
if a trial of that scope is warranted by a complaint that 
does allege overt acts with requisite particularity, 
see Lewis v. Kugler [446 F.2d 1343, 1345 (3d Cir. 
1971)] (complaint contained “detailed factual recita­
tions relating to 25 separate incidents”), neither a 
federal court nor a municipality should be burdened 
with such an action unless a detailed pleading is pre­
sented.

This sole issue upon which the case was tried was 
whether Director Chapman should have known of Officer 
Allen’s dangerous propensities, not whether there was a 
municipal policy or custom which resulted in a deprivation 
of constitutional rights. Where the injury did not arise 
from the execution of a governmental policy or custom,

23a



18
the defendant cannot be held liable in his official capacity. 
Hughes v. Blankenship, supra, 672 F.2d at 406. The fashion 
in which the case was maintained clearly demonstrates 
that it was an individual capacity lawsuit.

In Scheuer v. Rhodes, 416 U.S. 232 (1974), the district 
court categorized plaintiffs’ §1983 action against various 
state officials as being, in actuality, an action against the 
state, barred under the Eleventh Amendment. After 
analyzing plaintiffs’ allegations in their complaints, the 
Supreme Court reversed, noting that “petitioners allege 
facts that demonstrate they are seeking to impose individ­
ual and personal liability on the named defendants for 
what they claim—but have not yet established by proof— 
was a deprivation of federal rights by these defendants 
under color of state law.” 416 U.S. at 238.

The Complaint herein demonstrates that the action 
was brought only against individuals, Mayor Wyeth Chan­
dler and Police Director Winslow Chapman, alleging that 
they “knew or should have known that Robert J. Allen 
was not a good and proper person to be entrusted with 
the authority, power and responsibility of a police officer. 
App. 10a. Basically, the Complaint alleges defendants 
Chandler and Chapman negligently retained Allen as a po­
ke  officer. There was no allegation of a policy, practice, 
or custom of the defendants or the City of Memphis that 
deprived plaintiffs of constitutional rights. The Complaint 
sought damages only, no declaratory or injunctive relief. 
App. lla-12a.

Although the Complaint herein was filed prior to the 
Court’s holding in Monell that municipalities could be sued 
under §1983, plaintiffs never sought to amend their plead­
ings to allege a policy, practice, or custom, as was done, 
for example, by plaintiff in Key v. Rutherford, supra, 
645 F.2d at 881 n.l.

24a



19

In De.Va.sto v. Faherty, 658 F.2d 859 (,1st Cir.1981), 
plaintiff’s attempt to amend three months’ prior to trial, in 
order to add the city as a defendant and allege an un­
constitutional “practice, custom or policy,” was denied by 
{_he district court, which held that the city had already 
proven its entitlement to the qualified immunity of good 
faith. Relying on the intervening decision of Owen v. 
City of Independence, 445 U.S. 622 (1980), the Court of 
Appeals reversed, holding that the plaintiff should have 
been allowed to amend his complaint.

Where plaintiffs have failed to allege or prove un­
constitutional practices, policies, or customs, and have 
therefore failed the standard of proof required by Monell 
against a local government, dismissals have been properly 
allowed. Berry v. McLemore, 670 F.2d 30, 32-34 (5th Cir.
1982); Harris v. City of Roseburg, 664 F.2d 1121, 1130 (9th 
Cir.1981); McLaughlin v. City of LaGrange, 662 F.2d 1385, 
1388 (11th Cir.1981), rehearing and rehearing en banc de­
nied (1982); Richardson v. City of Indianapolis, 658 F.2d 
494 501 (7th Cir.1981); Walters v. City of Ocean Springs, 
626 F.2d 1317, 1323 (5th Cir.1980); Tyler v. Woodson, 597 
F.2d 643, 644 (8th Cir.1979).

Even if plaintiffs herein were correct that an action 
against the police director in his “official capacity” was 
the equivalent of an action against the city, their failure 
to allege or prove a policy, practice, or custom of the 
city that resulted in the alleged constitutional deprivation 
is a fatal defect.

The Sixth Circuit Court of Appeals clearly under­
stood that plaintiffs were attempting to amend their Com­
plaint post-trial to add the city as a defendant. Despite 
plaintiffs’ references before the trial court to official ca­
pacity,” the record below inescapably demonstrates that all

25a



20

parties understood that the only issue was whether or not 
Director Chapman should have known of Officer Allen’s 
dangerous propensities. Between the decision in Monell 
and the. trial of this cause, a period of approximately 
three years, plaintiffs never sought by amendment to add 
the city as a defendant or to make additional allegations 
of policy, practice, or custom. As the standard for liability 
was based on assertions of individual, not municipal, culp. 
ability, the Sixth Circuit Court of Appeals was correct in 
holding that as a matter of law Director Chapman was 
entitled to the qualified immunity of good faith.

III.
THE DECISION OF THE COURT OF APPEALS DOES 
NOT CREATE A CONFLICT AMONG THE CIR- 
CUITS.

The Court of Appeals’ opinion in this case is not in con­
flict with the other circuits. As the Court said, “. . . this 
is a suit against an individual, not the City.” A. 39a. No 
official policy or custom is involved. There is no real in­
consistency with the decisions of the Fourth, Fifth, Sev­
enth, and Tenth Circuits, or for that matter with the 
decisions of this Court in Monell and Owen, supra.

26a



21

CONCLUSION

The Judgment of the Court of Appeals should be af­
firmed.

Respectfully submitted,

H enry L. Klein
Staff Attorney - Attorney of Record 

for Respondent 
1500 First Tennessee Building 
Memphis, Tennessee 38103 
901/523-2363

Clifford D. P ierce, Jr.
City Attorney

Charles V. H olmes
Senior Assistant City Attorney

P aul F. Goodman 
Assistant City Attorney 
314-125 North Mid-America Mall 
Memphis, Tennessee 38103 

(901) 528-2614 
Attorneys for Respondent

27a