In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

RICARDO MEDRANO-ARZATE, EVA CHAVEZ-MEDRANO,as Personal Representative of the

ESTATE OF HILDA MEDRANO, Deceased,Petitioners,

v.

PAUL C. MAY, individually and as SHERIFF OFOKEECHOBEE COUNTY, FLORIDA,

and OKEECHOBEE COUNTY, FLORIDA, Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals for the Eleventh Circuit

BRIEF IN OPPOSITIONFOR RESPONDENT PAUL C. MAY

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO. 17-601

Bruce W. Jolly Counsel of RecordPurdy, Jolly, Giuffreda, and Barranco, P.A.2455 East Sunrise Boulevard, Suite 1216Ft. Lauderdale, Florida 33304954.462.3200bruce@purdylaw.com

Counsel for RespondentPaul C. May

i

QUESTION PRESENTED

Respondent restates the Question Presented asfollows:

Whether this Court should grant review when theclaimed difference among the Circuits, which is theasserted jurisdictional basis for review, regarding theissue of whether a municipality can be liable underSection 1983, in the absence of individual liability, isoverstated and immaterial.

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

RESTATEMENT OF THE CASE . . . . . . . . . . . . . . . 1

REASONS TO DENY THE PETITION . . . . . . . . . . 2

I. The Petitioners Overstate the Division Betweenthe Circuits Regarding the Issue of WhetherMunicipal Liability under Section 1983 CanInhere Absent a Constitutionally Culpable Actby the Individual Employee . . . . . . . . . . . . . . . . . 2

II. Petitioners’ Complaint Based On An UnofficialCustom of the Sheriff Without any allegations ofa widespread practice sufficient to imposeliability on the Sheriff Would Not Survive InAny Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iii

TABLE OF AUTHORITIES

CASES

Anderson v. City of Atlanta, 778 F.2d 678 (11th Cir. 1985) . . . . . . . . . . . . . 2, 3

Bd. of County Comm’rs of Bryan County, Oklahoma v. Jill Brown, 520 U.S. 397 (1997) . . 6

City of Canton v. Harris, 489 U.S. 378 (1989) . . . . . . . . . . . . . . . . . . . . . 2, 4

City of Oklahoma v. Tuttle, 471 U.S. 808 (1985) . . . . . . . . . . . . . . . . . . . . . . . 5

Collins v. Harker Heights, 503 U.S. 115 (1992) . . . . . . . . . . . . . . . . . . . 2, 3, 4

Fagan v. City of Vineland, 22 F.3d 1283 (3d Cir. 1994) . . . . . . . . . . . . . . . . . 4

Mark v. Hatboro, 51 F.3d 1137 (3d Cir. 1995) . . . . . . . . . . . . . . . . 4

Monell v. Dept. of Social Services, 436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . . . 5, 8

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) . . . . . . . . . . . . . . . . . . . . . . . 8

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 525 (1985) . . . . . . . . . . . . . . . . . . . . . 3

Thomas v. Cook County Sheriff’s Department, 604 F.3d 293 (7th Cir. 2009) . . . . . . . . . . . . . . . . 2

iv

STATUTES

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . 2, 3, 4, 5, 6

1

RESTATEMENT OF THE CASE

Respondent recognizes that due to the proceduralposture of this case, in that it was dismissed at thepleading stage, this Court is bound to accept as truethe factual allegations of the Complaint. That beingsaid, Respondent needs to address the factualcontention that Deputy Gracie was obeying Sheriff’sDepartment policies on the night of the subjectincident. (Petitioners’ brief at pg. 4).

In this litigation, Petitioners have advanced thetheory that the Sheriff violated the Decedent’sconstitutional rights by allegedly implementing twocompeting and conflicting policies which Petitionersfurther allege resulted in a custom exhibitingdeliberate indifference. The first policy at issueallegedly required deputies to seek approval from asupervisor via the radio before utilizing emergencylights and sirens during emergency vehicle operations.The second policy at issue allegedly prevented deputiesfrom making radio transmissions during an emergencyto prevent “chatter.” Finally, Petitioners allege that asa result of those agency policies, a custom/practiceevolved whereby deputies responding as back-up to anemergency operating their patrol vehicles never utilizetheir emergency lights and sirens. There has neverbeen an allegation that the Sheriff enacted a policywhich explicitly required deputies responding asbackup to exceed the speed limit while not using theiremergency lights and sirens. Instead, Petitioners’theory involves a conclusory consequence of two faciallylawful policies. Just as plausible a consequence of thetwo facially constitutional policies is that a deputy willnever respond as back-up, at least in a way which

2

necessitates the use of emergency lights and sirens.Respondent will address this issue in the substantiveportion of the brief however Respondent felt itnecessary to clarify the factual underpinnings of theclaim.

REASONS TO DENY THE PETITION

I. The Petitioners Overstate the DivisionBetween the Circuits Regarding the Issue ofWhether Municipal Liability under Section1983 Can Inhere Absent a ConstitutionallyCulpable Act by the Individual Employee.

Petitioners devote a significant portion of their briefengaging in an analysis of this Court’s holdings in Cityof Canton v. Harris, 489 U.S. 378 (1989) and Collins v.Harker Heights, 503 U.S. 115 (1992), asserting thatthese two cases implicitly recognize that a municipalitycan be liable under section 1983 in the absence ofindividual liability. (Petitioners’ brief at 10-12).Respondent does not disagree with this generalproposition, and neither does the Eleventh Circuit,despite Plaintiff’s suggestion to the contrary. SeeAnderson v. City of Atlanta, 778 F.2d 678 (11th Cir.1985) (recognizing a governmental entity can be liablefor deliberate indifference to a pretrial detainee’sserious medical needs [a constitutional claim], in theabsence of individual liability). The fact thatPetitioners’ brief omits referencing Anderson isespecially curious considering Petitioners’ heavyreliance on Anderson when they appealed the trialcourt’s ruling to the Court of Appeals for EleventhCircuit. Further, Anderson’s holding is nearly identicalto the case of Thomas v. Cook County Sheriff’sDepartment, 604 F.3d 293 (7th Cir. 2009), the Seventh

3

Circuit case which Petitioners now hold out as anexample of the split between the Circuits.

When analyzing the issue correctly, there is noconflict between the Circuits justifying review. Theproper question is not whether a municipality can beheld liable in the absence of individual liability, butrather under what circumstances it can be held liablein the absence of individual liability. When thequestion is framed properly, the Eleventh Circuit’sjurisprudence is in line with this Court’s precedentwhich “requires [the reviewing court] to separate twodifferent issues when a § 1983 claim is asserted againsta municipality: (1) whether the plaintiff’s harm wascaused by a constitutional violation, and (2) if so,whether the [municipal defendant] is responsible forthat violation.” Collins, 503 U.S. at 120. Thus thequestion of whether a municipality can be liable in theabsence of individual liability is very much dependanton the constitutional right at issue. Where, as here, theconstitutional right at issue involves a citizen’ssubstantive due process rights (of which this Court hasconsistently emphasized the importance of caution andrestraint against expansion1), the analysis of whethera municipality can be liable in the absence of individualliability is much different than in a case like Andersonwhere the constitutional violation (deliberateindifference to an inmate’s serious medical needs) ismore clearly defined.

1 Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S.Ct.507, 88 L.Ed.2d 525 (1985) (Powell, J., concurring)) (“the history ofsubstantive due process counsels caution and restraint”).

4

The Petitioners in their appeal to the EleventhCircuit and in their petition to this Court heavily reliedand continue to rely on Fagan v. City of Vineland, 22F.3d 1283 (3d Cir. 1994).Yet, even the Third Circuithas expressed concerns regarding the propriety of itsdecision in Fagan. See Mark v. Hatboro, 51 F.3d 1137,1153 n. 13 (3d Cir. 1995) (“It appears that, by focusingalmost exclusively on the “deliberate indifference”prong of the Collins test, the panel opinion did notapply the first prong-establishing an underlyingconstitutional violation.”).

Petitioners greatly exaggerate the split between theCircuits regarding this issue. This case does notpresent a special or important issue for review.

II. Petitioners’ Complaint Based On An UnofficialCustom of the Sheriff Without any allegationsof a widespread practice sufficient to imposeliability on the Sheriff Would Not Survive InAny Circuit.

Even if there was a Circuit split deserving of thisCourt’s attention, this case presents a poor vehicle toreview it. The differences among the Circuits areimmaterial because Petitioners’ cause of action wouldfail anyway under this Court’s precedent.

It is well settled that a government entity is notliable for the actions of its subordinates or employeesin a cause of action brought pursuant to 42 U.S.C.§ 1983 by operation of the concept of respondeatsuperior/vicarious liability. City of Canton v. Harris,489 U.S. 378, 385 (1989). Therefore, before liability canattach there must be both allegations and proof of acustom, policy, practice or procedure that provided the

5

moving force behind, and the direct cause of, thealleged constitutional violation. See Monell v. Dept. ofSocial Services, 436 U.S. 658 (1978).

There is a distinction between a custom, practice orprocedure and an official policy. In the case of aformal, official policy that clearly authorizesunconstitutional behavior, a single incident of theunconstitutional behavior by a subordinate of theofficial policy-making authority is sufficient to bring a§ 1983 cause of action. See e.g. Monell, supra.However, the law is more stringent in its requirementof proof in the typical § 1983 case where the custom,practice or procedure is not an officially promulgatedpolicy and rather is based upon some other theory thatis not directly related to the actual unconstitutionalact. Generally, in a case where the “policy of thegovernmental entity” is argued to exist through suchan informal custom or practice, a single or isolatedincident of a constitutional violation by an employee isinsufficient to establish such an informal custom orpractice. See City of Oklahoma v. Tuttle, 471 U.S. 808(1985).

The Sheriff’s two official policies at issue in thiscase (requiring supervisory permission before “runningcode” and minimizing radio traffic during anemergency) clearly do not violate the Constitution.Petitioners’ theory seems to be that the unofficialcustom/practice of deputies responding as backup toemergencies without their lights and sirens, whichallegedly and presumably came about as an allegedconsequence of two official policies of the Sheriff, issufficient to state a Federal claim against the Sheriff.It isn’t.

6

In Bd. of County Comm’rs of Bryan County,Oklahoma v. Jill Brown, 520 U.S. 397, 404-15 (1997),this Court held:

As our §1983 municipal liability jurisprudenceillustrates, however, it is not enough for a §1983plaintiff merely to identify conduct properlyattributable to the municipality. The plaintiffmust also demonstrate that, through itsdeliberate conduct, the municipality was themoving force behind the injury alleged. That is,a plaintiff must show that the municipal actionwas taken with the requisite degree ofculpability and must demonstrate a direct causallink between the municipal action and thedeprivation of federal rights.

Where a plaintiff claims that a particularmunicipal action itself violates federal law ordirects an employee to do so, resolving theseissues of fault and causation is straight-forward. Section 1983 itself contains no state-of-mindrequirement independent of that necessary tostate a violation of the underlying right. In any§1983 suit, however, the plaintiff must establishthe state-of-mind of the underlying violation. Accordingly, proof that a municipality’slegislative body or authorized decision-makerhas intentionally deprived the plaintiff of afederally protected right necessarily establishesthat the municipality acted culpably. Similarly,the conclusion that the action taken or directedby the municipality or its authorized decision-maker itself violates federal law will alsodetermine that the municipal action was the

7

moving force behind the injury of which theplaintiff complains....

Where a plaintiff claims that the municipalityhas not directly inflicted an injury, butnonetheless has caused an employee to do so,rigorous standards of culpability and causationmust be applied to ensure that the municipalityis not held liable solely for the actions of itsemployee....

Claims not involving an allegation that themunicipal action itself violated the law, ordirected or authorized the deprivation of federalrights, present much more difficult problems ofproof. That a plaintiff has suffered a deprivationof federal rights at the hands of a municipalemployee will not alone permit an inference ofmunicipal culpability and causation; the plaintiffwill simply have shown that the employee actedculpably....

Where a court fails to adhere to rigorousrequirements of culpability and causation,municipal liability collapses into respondeatsuperior liability. As we recognized in Monelland have repeatedly reaffirmed, Congress didnot intend municipalities to be held liable unlessdeliberate action attributable to themunicipality directly caused a deprivation offederal rights.

(internal quotes and citations omitted.)

To establish the existence of a custom or practicethat directly caused a violation of the Plaintiff’sconstitutional rights, it is necessary to allege and prove

8

a persistent and wide-spread practice of the allegedlyunconstitutional behavior (deputies responding toemergencies without activating their emergencyequipment resulting in fatal accidents) that existedbefore the incident that occurred on December 1, 2013and which amounted to the practice or custom of theagency as of that date. Moreover, knowledge of such acustom must be attributable to the Sheriff in his officialcapacity as a policy level-making official for the agency.Only when it can be said that the governmental entity“officially sanctioned or ordered” the unconstitutionalconduct can liability attach to a government agency.Pembaur v. City of Cincinnati, 475 U.S. 469, 480(1986), and Monell, 436 U.S. at 691.

In this case there have never been any allegationsof a wide spread practice or custom of deputiesresponding as back-up to emergencies without utilizingtheir lights and sirens which resulted in harm tocommunity residents. Although this issue was notaddressed by the Eleventh Circuit in its opinionaffirming the trial court’s order of dismissal (it wasraised by the Respondent), the lack of any allegation ofa widespread practice sufficient to satisfy this Court’srequirements for liability to attach to a governmentalagency based on an unofficial custom/practice is fatalto this claim anyway.

9

CONCLUSION

The petition for a writ of certiorari should bedenied.

Respectfully submitted,

Bruce W. JollyCounsel of Record

Purdy, Jolly, Giuffreda, and Barranco, P.A.2455 East Sunrise Boulevard, Suite 1216Ft. Lauderdale, Florida 33304954.462.3200bruce@purdylaw.com

Counsel for RespondentPaul C. May