Brandon v. Holt Reply Brief for Petitioners

    SUPREME COURT OF THE UNITED STATES 
October Term, 1984

No. 83-1622

IN THE

ELIZABETH BRANDON, ^  al,,
Petitioners,

V ,

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

On Writ of Certiorari to the United Stares 
Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR PETITIONERS

ELIZABETH A. McKANNA 
686 W. Clever Drive Memphis, Tennessee 38119

G. PHILIP ARNOLD300 E. Main Street 
P.O. Box 760 Ashland, Oregon 97520

WILLIAM £. CA.LDWELL 
P.O. Box 60996 Fairbanks, Alaska

J. LeVONNE CHAMBERS
ERIC SCHNAPPER*NAACP Legal Defense and Educational Fund, Inc. 

16th Floor 09 Hudson Street New York, New York ICG 13 
'(212) 219-1900

Counsel for Petitioners
*Counsel of Recorc



TABLE OF CONTENTS

I. The Director of Police Was Sued In His
Official Capacity ...................

II. The District Court Findings Satisfy theRequirements of Monell v. New York 
Department of Social Services,
436 U.S. 658 { 1978) .................

Conclusion ................................

Page

TABLE OF AUTHORITIES



SUPREME COURT OF THE UNITED STATES 
October Term, 1984

ELIZABETH BRANDON, et al.,
Petitioners,

V  .

JOHN D. HOLT, etc., ^  al.,
Respondents.

No. 83-1622

IN THE

On Writ' of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR PETITIONERS 
In our principal brief we noted that the district 

court had held liable for damages the Mem,phis Police Director 
"in his official capacity", and argued that such a judgm,ent 
runs against the city of Mem.phis, not the Director personally.
We thus urged that the court of appeals erred in holding 
than an action against such an ofricial in his official 
capacity ... is a suit against the individual, not the city".
(Pet. App. 39a; see also î . at 46a.) The respondent acknowledges 
that the district court held the Police Director "liable in 
his official capacity" (R. Br. 8, 13), but does nor attempt 
to defend the sixth circuit's opinion tnat su,-h a ju,.ugm.en̂  
imiocses oersonal liability on u-.e oirectcr.



Respondent advances in this Court, instead, a contention 
never raised by it in either court below, that the district 
court erred in imposing liability on tne Police Director in 
his "official capacity", and should instead have held him 
liable in his "individual capacity". The deliberate refusal 
of counsel for respondent to advance any such contention in 
the lower courts is easy to understand. Although counsel 
for respondent has been retained and paid by the City of 
Memphis, his client is the Police Director. So long as 
there was a possibility that the Director could be held 
personally liable, the Director's nominal counsel would have 
faced an insurmountable conflict of interest had he argued 
that the Director rather than the city should have been
directed to pay any judgment. Dunton v. County of_Suffolk,
729 F.2d 903 (2d Cir. 1984). Counsel for respondent clearly 
and deliberately avoided making such argument in the couri.s 
below, and is for that reason precluded from raising that 
contention here.

In the event, however, that the Court may wish to 
consider nisi prius whether this contention affords an alter­
native basis for affirming the decision of the cour̂ . of 
appeals, we set forth our views on respondent's position.
I . THE DIRECTOR OF POLICE WAS SUED IN HIS OFFICIAL

C.APACITY
Respondent asserts that the "real question" presented 

by this case is whether this action against tne Director of 
Police "was m.aintained against him, in his official capacity

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or individually." (R. Br. 10) Had petitioners expressly 
and consistently reiterated throughout the district court 
proceedings that they sought only to hold Director Chapman 
liable personally, the entry of judgment against Chapman in 
his official capacity might have been improper. But there 
was in this case no such misrepresentation of the relief 
sought by petitioners. Respondents expressly disavow any 
such claim that they were misled, acknowledging, albeit in a 
somewhat contentious fashion, that "throughout the c ^ .  
Petitioners have participated in an exercise in legal gym­
nastics to label it as an official capacity action---" (R.

Br. 8) (Em.phasis added). The court of appeals at three 
different points in its opinion emphasized that Chapman had 
in fact been sued in his official capacity. (P. App. 30a,
39a, 46a) We noted in our principal brief that counsel for 
petitioners made crystal clear more than a year and half 
prior to trial that Chapman was sued in his official capacity 
only, and that counsel reiterated that position througnout
the trial itself. (P. Br. 19-22)

Respondents appear to suggest in the alternative 
that, even though this action was expressly and successruliy 
litigated against Chapman in his official capacity, no judgm.ent 
can be entered against Chapm.an for the sole reason m a t  the 
original complaint failed to specify whether Chapman was 
named as a defendant in his official or individual capacity.

■ f > - this unique pe:Respondent, however, cites no authority
3 '''= no b=“=is for it can readily be imagined.S B  oi6aClin9 ruiBf

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Nothing in the Federal Rules of Civil Procedure 
requires that a complaint must expressly state in what 
capacity a defendant is sued. The framers of the Rules 
c]_0aj7]_y knew how to require that particular matters be 
pleaded with special specificity, and several such pleading 
requirements are set forth in Rule 9{b)-(h). The capacity 
in which a defendant is sued, like all other matters not 
encoTipassed by Rule 9, is governed by the direction in Rule 
8(e)(1) that "[n]o technical forms of pleading ... are required." 
See Conley v. Gibson, 355 U.S. 41 (1957). If a complaint 
fails to specify the capacity in which a government official 
is sued, respondent suggests that the plaintiff must thereafter 
be lim.ited to relief against the official in his personal 
capacity. But nothing in the Federal Rules of Civil Procedure 
suggests thar such a complaint must, should or even may be
construed and limited in this manner.

If the defendant in a civil action is genuinely uncertain 
as to the meaning or scope of the complaint, the Federal 
Rules provide a variety of remedies. In some circumstances 
Rule 12(e) authorizes the filing of a motion for a miore 
definite statement. Clarification of the nature of the 
issues in dispute may be sought at a pretrial conference 
under Rule 16(c)(1). Interrogatories asking that a party 
state the nature of its contentions may be served pursuant 
to Rule 33.

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In this case, however, respondent does not claim that 
it did not actually know that petitioners was seeking relief 
against the Police Director in his official capacity. Peti­
tioners reiterated the nature of the relief they were seeking 
with such frequency as to preclude any such claim. A defendant 
who is well aware of the nature of a plaintiff's claims 
cannot as here silently await the completion of the trial of 
those claims and only then object to the language of the 
original complaint. In such a case Rule 15(b)— directs 
that any defect or omission in the complaint be disregarded.
IX THE DISTRICT COURT FINDINGS SATISFY THE REQUIREMENTS

OF MONELL v. NEW YORK DEPARTMENT OF SOCIAL S^VICSS,
436 U.S. 658 (1978) .
The district court's finding of liability in this 

case was predicated on a number of detailed findings regarding 
Mem.phis Police Department practices which led to the attack 
on petitioners. The trial court concluded, inter alia, that 
violent officers were never dismissed, that transfers were 
never used as a disciplinary measure to punish abusive officers 
or to get them off the streets, that police officers throughout 
the Department adhered to a code of silence which precluded 
disclosing or confirming the existence of abuses by their 
comrades, and that the Police Director was deliberately 
insulated from, any inform.ation about civilian complaints of

1/ "When issues not raised by the pleadings are tried by 
exor^^s or im.plied consent of the parties, they shall be 
treated in all respects as if they had been raised in the 
p 10sd 1 n<5 2 •



police brutality. (Pet. App. 7-24) We discuss these findings, 
and the portions of the record which support them, at pp. 7-
18 of our principal brief.

Respondent does not deny the existence of these practices. 
On the contrary, respondent frankly acknowledges their existence, 
suggesting only that efforts were made to alter the practices 
af'ter they had resulted in the assault on petitioners. (R.Br.— ) 
Respondent nonetheless contends that these admitted practices 
are insufficient to provide a basis for the imposition of 
liability, insisting that none of these practices were official 
policies as required by Monell v. New York Department of 
Sc-cial Services,' 436 U.S. 658 ( 1978). Although the basis of 
this argument is not fully articulated, respondent appears 
to insist that the city of Memphis cannot be held liable for 
the actions of the city Police Director because the Police 
Director is no more than a mere employee of the city. (R.
3r. 15; Br. in 0pp. 6) Respondent's contention is based on
a clear m.isreading of Monell.

Monell overruled this Court's earlier decision in 
Monroe v. Paoe, 365 U.S. 167 (1961), that municipalities 
could not be named as defendants in civil rights actions 
brought under 42 U.S.C. § 1983.^— ^ While announcing that 
municipalities could be held liable in section 1983 actions.

2 / The complaint in this action sought relief both under 1̂ 983 and oirecrly under the Fourtee.ith ^^mendmenu.

custom, rooted as it is in the particular legislative

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Monell also held that such liability could not be imposed on 
a mere showing that the individual responsible for causing a 
violation of the constitution happened to be a city employee. 
Monell concluded that the common law rule of respondent_ 
superior was inconsistent with the legislative history of 
section 1983, and that damages may be awarded only if the 
constitutional violation at issue was caused by "a government s
policy or custom." 436 U.S. at 694.

Mc-nell indicated that this requirement of a government 
custom or policy could be satisfied in several different 
ways. First, a policy statement, ordinance, regulation or 
decision might be formally adopted by the city's highest 
ranking official or officials. See 436 U.S. at 690. As to 
any particular decision regarding government conduct, there 
must be one person, or group of persons, who can m.ake the 
ultimate determination as to what will occur. That group or 
individual, whom the lower courts have labeled the "final 
authority",—  ̂may exercise legislative, executive, or judicial 
functions. The actions of such a final authority are necessarily 
official policies within the meaning of Monell.

_2/ continued
historv of section 1983, would be applicable to a Bivens actior/. Since, however, that requirem.ent is clearly met in 
this case, there is no need to consider its relevance ir any 
to a case such as Bivens.
3/ See, e.Q. Schneider v. City of Atlanta, 628 F .2d 915, 
f20 (5th Cir. 1980); Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980). In Familias Unidas the unconstitutional 
conduct was that of a county judge. In imposing liability 
on the county, the Fifth Circuit reasoned:



Monell also recognized that in any governmental body 
much of the responsibility for making official policy or 
decisions will ordinarily be delegated by the mayor, city 
council, or other final authorities to lower ranking govern­
ment officials.-'^ The policy at issue in Monell, for example, 
had been adopted by the Assistant Deputy Administrator for 
Personnel Management of a single city agency.—'̂ Although 
the record in Monell contained no formal chain of delegation 
reaching back to the mayor or city council, the authority of 
that minor official to adopt the personal policy at issue in 
Monell was amply demonstrated by the fact that his decision 
was neither disregarded by his subordinates nor overturned 
by his superiors. Under these circumstances this Court had 
no difficulty in recognizing that the actions of the Assistant

3̂/ continued
"[T]he judge —  like other elected county officials, 
such as the sheriff and treasurer —  holds virtually 
absolute sway over the particular tasks or areas of responsibility entrusted to him by state statute and is accountable to no one other than the voters 
for his conduct therein.... Thus, at least in those areas in which he, alone, is the final authority 
or ultimate repository of county power, his official 
conduct and decisions must necessarily be considered 
those ... for which the county may be held responsible 
under section 1983."

619 F.2d at 404.
4/ The lower courts have consistently recognized that 
Monell is satisfied where the official responsible for the constitutional violation had been exercising delegatee authority 
or discretion. Hearn v. City of Gainesville, 688 F.2d 1328,
1"*34 (ll^h Cir 1982 ); Kingsville Independent School Districr 
v! Cooper', 611 F.2d 1109, 1112 (5th Cir. 1980); Peters Township of Hopewell, 534 F. Supp. 1324 (D.N.J. i982); Katris_
V. City of Waukegan, 498 F. Supp. 48, 1̂ (N.D. 111. 1980).
5/ Monell v. Department of Social Services, stipulation 
dated May 16, 1974, p. 2.

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Deputy Administrator could "fairly be said to represent 
official policy." 436 U.S. at 694. In cities and counties 
where policy making authority is often delegated in a casual 
and informal matter far different from the 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. See "Civil Rights Litigation after 
Monel1," 79 Colum. L. Rev. 213, 219 (1979).

Monell also concluded that a city or county could be 
held liable for'constitutional violations caused by an official 
custom. This rule has its roots in the language of section 
1983 itself, which provides a cause of action for certain 
conduct "under color of any law, statute, ordinance, regulation, 
custom, or usage of any State." The Court in Monell noted 
that in fram̂ ing section 1983 Congress had "included such 
customs and usage because of persistent and widespread discrimina­
tory practices by state officials." 436 U.S. at 691. Monel1 
emphasized that the actual practices of government officials 
was often a better indication of official policy than ordinances 
or reaulations which ignored or even forbade those practices:

It would be a narrow conception of jurisprudence 
to confine the notion or 'laws' to what is found 
written on the statute books.... Settled sta^e practice ... can establish what is state law....
Deeply emibedded traditional ways ot carrying 
out*state policy ... are often tougher and truer 
law than the dead worcs or the written text.

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436 U.S. at 691 n. 56. The Congress that framed section 
1983 was particularly concerned about the widespread refusal 
of local law enforcement officials in 1871 to enforce state 
criminal laws against members of the Ku Klux Klan and others 
who attacked blacks and Republicans. The nominal policy of 
the formal rebel states, as announced by their statutes, was 
to protect all citizens from violence without regard to 
their race or party; their actual policies, however, were 
very different. As one member of the forty-second Congress 
noted, "Sheriffs, having eyes to see, see not; judges having
ears to hear, hear not---A practice is to be deemed an
official custom if it occurs with sufficient frequency and 
notoriety as to make it known to responsible supervisory 
officials and those officials declined to take significant
action to end that practice.—^

The practices identified by the district court as 
causing the constitutional violation at issue in this case 
clearly satisfy the requirements of Monel 1. The policy or 
not dismissing violent officers was embraced by both the 
Police Director and the Memphis City Civil Service Commission 
The policy of not transferring officers for disciplinary 
reasons was adhered to by the Police Director and expressly 
agreed to by the Mayor. The policy of insulating the Police

6/ Cong. Globe, 42 Cong., 1st Sess. 78 (1871) (Rep. Perry).
7/ See RESTATEMENT OF THE LAW OF AGENCY (SECOND) § 43
T1958). Comm.ent (a) notes, "Persons ordinarily express 
dissent to acts done on their behalf which they have not 
authorized or of which they do not approve." That was the 
view of aqency law which prevailed in 1871. See J. btory 
Commentaries on the Law of Agency. § S7 (1839) (authority of agent can arise "by implication by num.erous acts, done b̂  
the agent with the tacit consent or acquiescence of uhe 
principle.")

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Dirsctor from all civilian complaints of misconduct was 
adopted, as it was later modified, by the Police Director 
himself. Respondents do not suggest that the Mayor, Police 
Director or Civil Service Commission lacked the authority to 
adopt any of these well established and well known policies.
The code of silence that prevailed among Memphis police 
officers is precisely the type of custom with which the 
framers of section 1983 were concerned. That code inevitably 
permitted and condoned police misconduct as surely as a 
written rule expressly immunizing officers from any inquiry 
into acts of violence. If Memphis had any nominal policy 
forbidding police violence, it was little more than a dead 
letter. The police officers with relevant knowledge uniformly 
suppressed that information, and their supervisors, although 
well aware that criminal conduct was being concealed in this 
manner, made no apparent effort to impose sanctions on any 
of the officers involved in the cover up.

Respondent suggests in the alternative that even if 
the findings of the district court are sufficient under 
Monel 1, this action must nonetheless be dismissed because 
the original complaint lacked sufficiently precise allegations 
regarding those official policies. This contention, first 
raised in a brief filed in this Court in August 1984, some 
four years after the trial,comes far too late in the day. 
Petitioners expressly announced at the outset of the trial 
their intention to prove a policy under Monel1, and proceeded 
to do so, without any recorded objection by the respondent. 
When an issue is thus tried with the im.plicit consent

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of the parties, any failure to raise those issues in the 
©leadings is necessarily waived. Rule 15(b), Federal Rules 
of Civil Procedure.

Nothing in the Federal Rules, moreover, suggests that 
a section 1983 claim against a municipality must be pleaded 
with a greater degree of specificity than any other type of 
claim. Respondent apparently suggests that a plaintiff must 
identify in his or her complaint each and every policy which 
is to be proved at trial, and even specify what evidence 
will be offered to establish the existence of those policies. 
3ut a civil complaint is not required to have the specificity 
and detail that might, after the completion of discovery, 
characterize a Rule 16 pretrial order; the complaint need 
only contain "a short and plain statement of the claim,"
Rule 8(a)(2), F.R.C.P. A plaintiff will ordinarily lack 
prior to discovery the type of detailed information about 
the defendant's conduct which respondent insists be alleged 
in advance in the complaint.—'̂ In the instant case, for 
example, it was not until defendant Chapman was deposed 
under oath that the practices identified by the district 

or could hs.v0 bGsn known to pctitioncirs or sny 
other individuals injured by those practices. Respondent 
suggests that a plaintiff aggrieved by a violation of the 
Constitution should be barred from court unless the plaintij.f

9/ "We are at a loss as to how any plaintiff, including a 
civil rights plaintiff, is supposed to allege with specificity 
prior to discovery acts to which he or she was not personally 
exposed, but which provide evidence necessary to sustain the 
plaintiff's claim...." Means v. City of Chicago, 535 F.
Supp. 455, 460 (N.D. 111. 1982).

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alleges in his or her complaint the type of detailed informa­
tion that Rules 26-37 implicitly recognize cannot be obtained 
without the use of depositions, interrogatories, and other 
forms of discovery. Such a requirement would establish for 
civil rights cases an unmeetable pleading requirement 
radically unlike anything demanded of the plaintiffs in 
mundane commercial litigation, far more harsh and indefen­
sible than the arcane rules of common law pleading, and 
entirely inconsistent with the intent of the framers of 
section 1983 that that statute "throw [] open the doors of 
the United States courts to those whose rights under the
Constitution are denied or impaired. 1 0/

10/ Cong. Globe, 42nd Cong., 1st Sess. 376 (1871) (Rep.
Lowe) See also id. at 459 (remarks of Rep. Coburn) ("Whenever,
then,'there"is a denial of equal protection_by the State,
the courts of justice of the nation stand with open doors.... )

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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, Tennessee 38119

G. PHILIP ARNOLD300 E. Main Street 
P.O. Box 760 Ashland, Oregon 97520

WILLIAM E. CALDWELL 
P.O. Box 60996 Fairbanks, Alaska 99706

J. LeVONNE CHAMBERS
ERIC SCHNAPPER*NAACP Legal Defense and Educational Fund, Inc. 

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

Counsel for Petitioners
♦Counsel of Record

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