Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ELIZABETH BRANDON, ET AL., Petitioners, v. JOHN D. HOLT, ETC., ET AL.

No. 83-1622

November 5, 1984

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:23 o'clock p.m.

APPEARANCES:

ERIC SCHNAPPER, ESQ., New York, New York; on behalf of the petitioners.

HENRY L. KLEIN, ESQ., Memphis, Tennessee; on behalf of the respondents.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next this morning in Brandon against Holt.

I think you may proceed when you are ready, Mr. Schnapper.

ORAL ARGUMENT OF ERIC SCHNAPPER, ESQ., ON BEHALF OF THE PETITIONERS

MR. SCHNAPPER: Mr. Chief Justice, and may it please the Court, the question presented by this case is neither complex nor novel. The issue, simply put, is whether a judgment against a public official in his official capacity runs against the official personally or against the entity for which the official works.

The District Court in this case found that the director of the police department in Memphis was liable in his official capacity. The Court of Appeals concluded -- I think this is maybe best cast as a construction of what such a judgment would mean -- that a judgment against an official in his official capacity runs against the official personally, not against the entity of which he is an employee.

The question before the Court is whether the District Court erred in this regard.

QUESTION: Well, something would depend, wouldn't it, Mr. Schnapper, on how the case was tried, the theory on which he was tried?

MR. SCHNAPPER: Well, I think there are -- that would be a somewhat different question. The first issue is, if we have a judgment against the official in his official capacity, assuming that judgment was correctly entered, who has to pay.

The second question, I think, encompassed within your own is, might such a judgment be improper because of the nature of the case and the way it was tried.

QUESTION: Well, particularly when the case was tried before Monell was decided, or rather, the complaint was filed before Monell was decided, so you have a fairly ambiguous situation, it seems to me.

MR. SCHNAPPER: Well, I don't think we have an ambiguous situation as of the time the case went to trial or even as of 19 months before that. As I indicated, 19 months before trial, we filed a memorandum in the District Court making crystal clear that we sought to impose liability on the defendant only in his official capacity, and noted that this Court's decision in Monell had held that an official capacity judgment ran against the entity.

QUESTION: Why didn't you move to amend your complaint?

MR. SCHNAPPER: Well, on our reading of the federal rules, no such amendment was necessary. The defendant was certainly on notice as to what we were trying to do and on whom the liability would be imposed. There is nothing in the federal rules as they now stand that requires that notice be in the complaint.

QUESTION: But ordinarily a prudent lawyer wanting a judgment against a city would be fairly certain to make sure the city was named defendant if the city were suable, I would think. You wouldn't rely on a provision in the rules that you thought might justify an argument in the Supreme Court of the United States that perhaps the Court would rule for you on the point.

MR. SCHNAPPER: Well, Your Honor, the Supreme Court had decided the issue twice by 1979, both in our favor. All the Courts of Appeals had concluded that Rule 25(d) means what it says on its face, that a judgment against an official in his official capacity is a judgment against the entity.

I don't disagree that we would have avoided a trip to Washington had we amended the complaint in that way, but in our view the trip should have been unnecessary, and the rules mean what they say.

QUESTION: Mr. Schnapper, is this anything more than a lesson in pleading?

MR. SCHNAPPER: Well, I think it may more reasonably be cast as a lesson about --

QUESTION: Because if so, we have more important things to do.

MR. SCHNAPPER: Well, I think that the federal rules don't require the notice at issue to have been in any particular form as long as the defendants had actual notices to the entity against which the judgment would run, and they certainly had that.

QUESTION: Who did? The city?

MR. SCHNAPPER: The city.

QUESTION: How do you know they knew?

MR. SCHNAPPER: We filed a memorandum in February of 1979.

QUESTION: In court.

MR. SCHNAPPER: In court. Expressed this --

QUESTION: Was the city a party? Was the city a party to that case?

MR. SCHNAPPER: The city's lawyer was representing the defendant at that point.

QUESTION: But except for this rule, except for this rule you rely on, which -- except for that rule, the city would not have been bound by the judgment?

It wasn't a party, and it wasn't served.

QUESTION: Well, prior to the existence of Rule 25(d) and its predecessor under the 1937 Rules of Federal Civil Procedure, there were lawsuits against officials in their official capacity. There was an enormous amount of confusion as to just what that meant, and Rule 25(d) was meant to clear that up.

But I would argue were we now standing and arguing this in 1936, that the result would be the same. It would be a more difficult argument, however. But the notion, the concept of official capacity lawsuits has been around for quite some time, going back well into the previous century.

In any event --

QUESTION: Mr. Schnapper --

MR. SCHNAPPER: Yes.

QUESTION: -- when this action went to trial, it apparently was tried and liability was found on the basis of whether Officer Chapman knew or should have known of the dangerous propensities of the other officer. Is that right?

MR. SCHNAPPER: Well, I think that --

QUESTION: Is that the theory?

MR. SCHNAPPER: That is not the only theory of liability. We indicated at the --

QUESTION: Is that what the District Court found as the basis for liability?

MR. SCHNAPPER: Well, that is one of the findings it made. It made several specific findings with regard to city practices.

QUESTION: Do you think that that finding alone is even appropriate under the Monell standard for liability in an official capacity suit?

MR. SCHNAPPER: I think, Your Honor, it would depend on who the official was that knew or should have known. There are some officials --

QUESTION: I just didn't see anything at all in Monell to that effect. It seemed to me that maybe what had to be found was whether it was an official policy or practice of the department or city.

MR. SCHNAPPER: I think that's correct, and I think there are a number of specific findings with regard to practices that I would like to come back to in a second, but with regard to the question of whether a finding that an official knew or should have known about the sort of aberrant policeman at issue here, Monell refers not merely to policies but to acts.

There are some natural persons within any governmental unit whose actions are official actions, and I think that while --

QUESTION: But that doesn't necessarily mean that their actions are official policies. A policy certainly means more than just the action of a particular individual.

MR. SCHNAPPER: I think that Monell refers to actions and decisions as well as policies. I mean, there are any number of decisions that have to get made in a given case which aren't policies that affect a lot of cases. They are just decisions on a particular situation.

QUESTION: Well, if it turns out that we disagree with you and think that what has to be established for an official capacity suit is whether it was an official policy or practice of the department or city, would it have to be sent back then for a new trial?

MR. SCHNAPPER: Well, I don't think so, Your Honor. We do have a number of very specific findings of governmental practices here set out in the District Court's opinion. There was a finding that it was the policy of the department never to fire a violent officer, not to transfer officers for disciplinary reasons.

There is a finding that it was the policy of the director of the department to insulate himself from knowledge of any abuses by officials, and there is also a finding of what I think is clearly a custom within the meaning of Monell, a code of silence among all the officers involved not to disclose what abuses might be going on within the department.

We think those findings are sufficient to meet the Monell standards, and they are express findings. This is not a case like Wainwright against Witt. We aren't arguing that just because we won in the District Court, the Court should presume there must have been some unstated findings in our favor.

We think that Rule 52, like Section 2254, refers to real live written or oral findings, but we have those here. And we think they are entirely sufficient. Indeed, they are considerably more specific in detail than are present in ordinary Monell cases.

QUESTION: Well, the Court of Appeals didn't reach the issue of policy.

MR. SCHNAPPER: That's correct.

QUESTION: So that you could still lose this case back in the Court of Appeals, even if we agreed with you now.

MR. SCHNAPPER: Yes, and I don't mean by my response to Justice O'Connor's question to suggest that that is an issue that ought to be addressed here. It, like the problem of Peratt against Taylor, was not raised at the trial court, was not raised in the Court of Appeals.

It probably can't be raised at this stage in the litigation in any event, but certainly if it can be raised it ought to be looked at in the first instance by the Court of Appeals. I think the only thing that is properly addressed by this Court is whether the judgment that we won, assuming it was correct, ran against the city.

We are delighted to win this case at any time on any issue in any forum, but I am constrained to acknowledge that, as Mr. Justice White suggests, under the ordinary practice of this Court, the Monell issues are issues which should be dealt with in the first instance by the Court of Appeals.

The specific events which gave rise to liability in this case are set out in the findings of the District Court. The most important finding with regard to that incident was that the assault in question happened under color of law.

Patrolman Allen used his police weapon. He used his police identification to get one of the petitioners out of the car, and then assaulted one petitioner with a knife, and as the petitioners fled used his service revolver to attempt to kill them.

The District Court, as I also noted, found a number of specific policies which had been engaged in by the police department, and concluded, I think correctly, that --

QUESTION: Mr. Schnapper, is it not correct that those policies in the District Court's finding merely were to establish the proposition that Chapman should have known about this officer's propensities, rather than saying that the policies were what actually caused the injury. That is the way one might read the conclusions of law.

MR. SCHNAPPER: That is a possible reading of it, but that, I think, only puts an additional wrinkle in the causation claim. That is to say, on your characterization, the judge found four policies which caused Chapman not to know about what was going on, and Chapman's lack of knowledge caused the assault.

So whether you see the causation as a two-step -- or a one-step --

QUESTION: Well, I am not sure -- well, you say and the lack of knowledge caused the assault? It doesn't go that -- the District Court I'm not sure said that. I thought he more or less held him liable on a respondeat superior theory and explained why he should have known of the propensities of the officer.

MR. SCHNAPPER: We don't read the District Court's opinion like that. All of the findings with regard to these practices would make no sense if the District Judge thought that the mere fact that Chapman was the supervisor is enough to impose liability on him.

QUESTION: Well, he certainly didn't articulate any -- articulate his ruling in terms of the city's liability under Monell.

MR. SCHNAPPER: Well, let me answer that question in -- with before and after the point which I broke it up with my interruption. Certainly the Judge made it clear he understood that the city was going to be liable. Not only did he reiterate on three occasions that Chapman was liable in his official capacity, but in his opinion he quoted that portion of this Court's decision in Monell which said a finding of liability against an official in his official capacity runs against the entity rather than the official person.

QUESTION: Yes, but he didn't say, now, I am going to identify a city policy. Certainly there wasn't any city policy to have -- to encourage officers to go around and act the way this officer did.

MR. SCHNAPPER: Well --

QUESTION: They didn't train them to do it, for example.

MR. SCHNAPPER: Let me answer those questions in reverse order. I think your description of the policy is correct. It was not the policy of the city to encourage assaults on teenagers parked in shady lanes in the middle of the night, but it was the policy of the department to take no action and indeed to make no effort to remove from the force officials whom were well known to be dangerous officers, people who have a propensity for violence, who were regarded in this case as so dangerous by their colleagues in the department that other police officers would not ride in the same squad car with the patrolman who committed this offense.

This is a case in which there was virtually a complete breakdown in control. I mean, people were given guns and badges and set loose on the citizenry. There was simply no control over them. If they turned out to be dangerous, violent human beings who went around beating people up or shooting at them, the police department in Memphis had a policy of doing nothing about it.

And we think that such a policy certainly is sufficient under Monell. Monell contemplates that liability is imposed not merely for --

QUESTION: Well, at the very least, you do pose a question of what does "policy" mean under Monell.

MR. SCHNAPPER: I think there are interesting questions like that raised by this case but not at this time. I think that you earlier suggested, and I think correctly so, that that is an issue which, if it can be addressed at all, ought to be addressed in the first instance by the Court of Appeals, and it is a situation like the situation discussed in Footnote 3 of Peratt against Taylor, in which these -- that is to say, these issues were never raised in the District Court, the questions that are raised --

QUESTION: Did the District Court say exactly what the constitutional violation was here?

MR. SCHNAPPER: No, it did not.

QUESTION: It is kind of hard to find one, isn't it?

MR. SCHNAPPER: I think that your characterization of it is a very strained one. Reviewing the trial transcript, and indeed the briefs on appeal, looking at that very issue, my reading of what happened is that no one really questioned that there was a constitutional violation here.

You had two individuals accused of no crime whatsoever who were assaulted by a police officer acting under color of law. There doesn't seem to have been a point in the litigation where the defendants denied, and I think no defendant reasonably could, that that violated the Constitution in a number of ways.

The issue as all parties perceived it below was whether or not liability for that extended beyond the particular patrolman who wielded the knife and pulled the trigger.

And again, like the problem about Monell, that is an issue which was not raised in the District Court, was not raised in the Court of Appeals, probably can't be raised at this late date, and in any event shouldn't be raised in the first instance here without the Court of Appeals having a chance to look at it.

The District Court judgment, as I indicated, ran against the director in his official capacity. The Court of Appeals concluded that that judgment in fact was a judgment against him personally. Based on that premise, it then applied the good faith and immunity rule of Scheuer against Rhodes and Procunier against Navarette, and found that Director Chapman had acted in good faith.

At the point of the District Court opinion, as chance would have it, by operation of Rule 43(c) of the Federal Rules of Appellate Procedure, Director Chapman was no longer a party to the litigation. Of course, he had left office prior to the decision of the Court of Appeals, and the nominal defendant at that point was Police Director Holt.

In any event, the narrow issue which we think is before this Court is not an issue of first impression. In our view, it is an issue of fourth impression. The question of whether a judgment against an official in his official capacity runs against the entity or against the individual personally has been resolved three times before.

It was first resolved by this Court in Monell. In Monell, the question was what standard would apply in the case of an action against a municipality, and the Court noted that that same standard, the precise scope of which I think we agree is not entirely clear yet, was equally applicable to a suit against an official in the official's official capacity.

Secondly, in the same month --

QUESTION: To say that the same standard applies doesn't mean that the two are the same thing.

MR. SCHNAPPER: Well, Mr. Justice Rehnquist, there may be circumstances, none of which come to mind at this point, where there might be some difference. The specific question in this case is whether the good faith immunity rule would apply in such a case, and you expressly resolved that question in Owen against City of Independence.

QUESTION: I thought you were citing cases to say that we have already decided precisely this question, and you say that in the first case we said that the same standard would apply in a suit against a city as in a suit against an officer in his official capacity.

One can subscribe to that view without in any way subscribing to the view that the two are identical so far as imposing liability is concerned.

MR. SCHNAPPER: Mr. Justice Rehnquist, I perhaps understated the language in Monell. Monell says that a claim against an individual in his official capacity is generally the same as a claim against the entity of which he is an official.

Now, the word "generally" I take it was sort of precautionary language the Court customarily and wisely uses, you know, to guard against the possibility that some situation might arise where such a claim wasn't to be treated as identical to a claim against the city.

But Rule 25 in our view contemplates that they are to be treated as the same thing, and no case comes to mind which would be different. It is one of the annoying things about the law that cases which don't come to mind sometimes do come to pass, and I don't want to -- as the President is prone to say, Presidents never say never, I am a little reluctant to say never myself.

But certainly no case that I can imagine exists in which these -- in which a judgment against an official in his official capacity would be any different than a judgment against the entity itself.

In any event, the specific question at issue here is whether there is any difference between a judgment against an official in his official capacity and a judgment against the entity with regard to the good faith defense recognized by Percunier and Scheuer against Rhodes.

That was the precise issue that was before the Court in Owen against City of Independence, in which the officials -- the defendant was not just in that case the City of Independence, but a number of officials who were sued in their official capacity, and the Court in Owen noted that only the liability of the municipality was at issue in Owen, not any liability of the individuals.

A similar reading of what it means to have a judgment against an official in his official capacity was made by the Court in Huddo against Finney with regard to liability issues and the Eleventh Amendment.

We think that all of these decisions are clearly correctly decided, and one need look no further than the actual language of Rule 25(d), which provides that upon the removal from office of any official in an official capacity action, his or her successor is to be substituted.

That rule would make absolutely no sense if an official capacity judgment imposed personal liability. That would mean that if we had a judgment against Mr. Chapman in his official capacity for $1 million, he resigned and was replaced by Director Holt, that we could then garnish Director Holt's salary and seize Director Holt's house.

It is simply inconceivable that the framers of Rule 25 contemplated that an official capacity action could produce personal liability of that sort. On the contrary, the committee note makes it quite clear that official capacity actions are actions which, although brought in form against a named officer, are intrinsically against the government.

QUESTION: Does the committee language indicate any thought that the rule applies beyond injunctive suits?

MR. SCHNAPPER: I am not sure about that, but I would say that certainly must have been its intent, because the problems which arose that Justice Frankfurter referred to in 1951 about official capacity lawsuits were mostly lawsuits against government officials for money. Snyder against Buck and the like were actually damage actions, and it had long been assumed in those cases, in suits against a postmaster or whatever, that the government was going to actually have to pay the bill.

The problem in those cases was one postmaster would leave office, another postmaster would come in, and there would be procedural chaos. But I expect if we took another look at the committee notes, there would be reference to a number of these cases, most of which, as I say, were damage actions, not injunctive actions.

I would like to reserve the balance of my time.

CHIEF JUSTICE BURGER: Mr. Klein.

ORAL ARGUMENT OF HENRY I. KLEIN, ESQ., ON BEHALF OF THE RESPONDENTS

MR. KLEIN: Mr. Chief Justice, and may it please the Court, the question really involved in this case is whether or not this is in reality an official capacity lawsuit or a lawsuit against an individual, and it is the position of the respondent that this is actually an individual capacity case.

The Court of Appeals in its opinion clearly stated that this was a suit against an individual and not against the city, and further went on to say that what claimants were doing in effect was attempting to amend their complaint at this stage to include the city under the guise that it was an official capacity lawsuit.

The court recognized that --

QUESTION: That's what the Court of Appeals said. What did the District Court say?

MR. KLEIN: The District Court said that in dealing with the question, and as they commented, the sole issue is whether Director Chapman should have known about the dangerous propensities of the officer in question, that in dealing with that, they concluded --

QUESTION: Excuse me. What page of the appendix are you or?

MR. KLEIN: If Your Honor please, this in the --

QUESTION: Petition?

MR. KLEIN: -- petition for writ of certiorari, on Page 20A. The court says both parties to the case agreed that Mr. Chapman had no actual knowledge of Officer Allen's dangerous propensities. Thus, they said that the sole issue was whether Director Chapman should have known, not knew, but should have known that Officer Allen's dangerous propensities created a threat to the rights and safety of other citizens.

That was determined by the District Court as to be the ground rules or the framework under which this case was to be tried, and that is the way it was tried. Now, counsel argues that there is discussion about various policies that were in effect, but it is obvious -- at least it is our contention that it is obvious in a reading of the District Court's opinion that what they were doing was really directing everything to that one question, and that is, whether or not --

QUESTION: Of course, you didn't read the next sentence, did you?

MR. KLEIN: Because Mr. Chapman as police director should have known of Officer Allen's dangerous propensities, the courts find that he must be held liable in his official capacity to the complainants. But the problem there, if Your Honor please, is that that is really an inconsistent finding, because if the only question is whether he should have known, this is obviously a negligence type question, not a Monell type question.

Nothing ever came into play in the District Court's findings with regard to Monell. No reference whatsoever. No reference to the Monell standards. That is the part about the District Court's opinion that becomes a little bit confusing, because on the one hand you are dealing with the issue of should have known, which we submit is clearly nothing more than a negligence issue, and then on the other hand it is finding him liable in his official capacity, and as we read the law, there would be no way under a simple negligence finding that he could be liable in his official capacity.

But in any event, the court did, as Your Honor points out, the court did make such a finding, but then when it got up to the Court of Appeals, it was obvious that they considered it nothing more than a negligence type question as to whether or not there were any dangerous propensities or he should have known, but then went further to say that in that this is just a case against the city -- or against the individual, and not against the city, that the director was entitled to good faith immunity.

QUESTION: Well, whether it is obvious or not, that's the issue here.

MR. KLEIN: Yes, sir. Yes, sir.

QUESTION: Mr. Klein --

MR. KLEIN: Yes, Your Honor.

QUESTION: -- was Officer Chapman represented in the District Court by the city attorney?

MR. KLEIN: He was represented by me, Your Honor.

QUESTION: And would that be the normal procedure in an individual capacity suit?

MR. KLEIN: Yes, it would.

QUESTION: Would the city step in and representing the officer?

MR. KLEIN: Yes, it would, Your Honor. That is done -- that is done quite frequently, and there have been a number of cases that I can state where I have as -- my official title is staff attorney for the city of Memphis -- where I have represented --

QUESTION: Do you think there normally would be an automatic substitution of parties in an individual capacity suit wherein Officer Holt was substituted for officer Chapman if it is an individual action?

MR. KLEIN: No, I do not, Your Honor.

QUESTION: Well, how did that come about?

MR. KLEIN: Well, that came about, the plaintiffs, and if my memory serves me correctly, that came about after the case was up on appeal, and before the Court of Appeals. Then they filed a motion to substitute.

QUESTION: Did you object to that substitution --

MR. KLEIN: No, I did not --

QUESTION: -- and why not, if you thought it was an individual capacity suit?

MR. KLEIN: Well, if Your Honor please, we in our -- when we got to the Court of Appeals, of course, our whole argument was based on the fact that this was an individual capacity lawsuit, and we felt like we made it clear to the Court of Appeals at that time that it was only being treated in this way, and that we were entitled to good faith immunity, and also the question about the standard which was to be imposed, but we did not officially object to that, and the Court of Appeals in its opinion is --

QUESTION: That is a bit inconsistent with your theory, is it not?

MR. KLEIN: The fact that we did not object?

QUESTION: Yes.

MR. KLEIN: Well, the fact that we did not object I don't think was inconsistent with what we were trying to do or what our theory was. There could be no question before the Court of Appeals what our theory was. And frankly, we did -- I say ignore. We did not respond. That's true. But we did not consider that that had any merit, because it didn't apply or should not apply in an individual capacity case.

QUESTION: Was Mr. Campbell removed from the litigation at that point?

MR. KLEIN: Mr. --

QUESTION: Chapman, you mean?

QUESTION: Chapman.

MR. KLEIN: Not -- well, if Your Honor please, the Court of Appeals didn't treat him as having been removed, because a reading of -- the Court of Appeals opinion talks about Director Chapman throughout, and never makes any reference to Director Holt.

Of course, what had happened was, Chapman had left office, and Director Holt had been appointed by the mayor, and that is when this attempted substitution was filed. But a reading of the Court of Appeals opinion clearly shows the Court of Appeals didn't consider that Director Holt was in the picture because they considered that it was an action individually against Director Chapman, and so stated.

So, they didn't pay, so to speak, didn't pay any attention to the fact that there had been this proposed substitution.

QUESTION: And you didn't pay any attention to your client, either. You just took him on as another client.

MR. KLEIN: I beg your pardon, Your Honor?

QUESTION: You just took him on as your new client.

MR. KLEIN: No, sir, I was still representing Director Chapman.

QUESTION: And you weren't representing anybody else?

MR. KLEIN: No, Your Honor, only Director Chapman, and only represented Director Chapman --

QUESTION: Director Chapman is out of the case now, isn't he?

MR. KLEIN: Well, that's the --

QUESTION: Isn't he?

MR. KLEIN: Well, we say that he's not, Your Honor. That's a question. But our position is, he's not out of the case, and never has been out of the case, because he was sued individually.

QUESTION: Are you representing everybody here?

MR. KLEIN: I beg your pardon?

QUESTION: Are you representing all of the appellees here?

MR. KLEIN: If Your Honor please, our contention is that the only true appellee in this case is Director Chapman.

QUESTION: Are you representing the others, the other named appellees?

MR. KLEIN: I am in effect representing Director Chapman.

QUESTION: And nobody else?

MR. KLEIN: Well, it is our position, Your Honor, that no one else is before the Court.

QUESTION: And as staff attorney of Memphis?

MR. KLEIN: Yes, sir, that's correct.

QUESTION: You are representing this private litigant.

MR. KLEIN: Well, private litigant, although he was --

QUESTION: Well, is he a private litigant?

MR. KLEIN: Well, in this particular case he would be a private litigant, although at the time --

QUESTION: And you say he is a private litigant.

MR. KLEIN: He would be a private litigant.

QUESTION: I didn't say would. I said is.

MR. KLEIN: Yes, sir.

QUESTION: Is.

MR. KLEIN: Yes, sir.

QUESTION: He is a private litigant?

MR. KLEIN: Yes, sir.

Now, again, from an analysis of the Court of Appeals opinion, what is clear is that they were dealing with only one issue, and that was whether or not there was any liability on the part of Director Chapman, and we say individually, and the standard that should be applied to determine that liability.

The court comments that the parties in the case expended considerable energy either relying on or distinguishing in their opinion an opinion in the case of Hayes versus Jefferson County, and that was a Sixth Circuit case that applied the applicable standards. The question was whether the standard in Peratt v. Taylor would apply or whether a greater degree of negligence should be applied.

And by the fact that both parties were spending a considerable amount of time addressing themselves to that issue, it was obvious to the Court of Appeals that the only issue that was before them was one -- a question of negligence, and not a question of policy under the Monell standard.

And as I say, they go ahead to find that in reality, the plaintiffs are attempting to amend their complaint so as to treat the police director as though he were the city in order to provide the qualified immunity which shields Director Chapman. Nothing was ever referred to, no mention was ever made of any Monell standards in the Court of Appeals.

The case started out clearly as a case against Director Chapman, without any reference to it being an official capacity lawsuit. There was any attempt to bring the city in. There was never any attempt to amend to bring the city in, which they clearly could have done.

And even though this case was filed before Monell was decided, the Sixth Circuit in various opinions had held that the city could be brought in under Section 1331 and the Fourteenth Amendment. But be that as it may, no attempt was ever made to bring the city in.

QUESTION: Well, I guess if there were an official capacity suit which had been brought against Director Chapman and liability was found, the city would be liable, whether or not it was named. Would you agree with that?

MR. KLEIN: I would agree that that is what the cases -- that is what the cases seem to hold. But the problem is --

QUESTION: So it wouldn't have been necessary to amend to bring the city in as a named party in order to impose liability if it were an official capacity suit?

MR. KLEIN: If it were an official capacity suit. That is what the cases have held, Your Honor. That is correct. But since this was not done, it is our position it was clearly tried as an individual capacity lawsuit.

Interestingly enough, a motion for summary judgment was filed pretrial, and at that time there were three defendants in the case. There was Officer Allen, and there was the mayor, and there was the police director, Chapman.

And the court dismissed the mayor on the grounds that he did not actively participate in the acts that were involved, and as a supervisory personnel, there was nothing to establish any liability on his part, and considered very carefully whether or not Director Chapman should have been dismissed, and then finally concluded that because through discovery there were two letters that were found that may indicate that he may have known something about this individual officer, the court declined, on that basis and that basis alone, the court declined to grant the summary judgment, and said that there may be some genuine issue as to whether Director Chapman knew or should have known about the danger.

QUESTION: Mr. Klein, were you involved at the trial stage?

MR. KLEIN: Yes, Your Honor, I was.

QUESTION: Was there ever any discussion by counsel with the Court about Monell and what was required under that?

MR. KLEIN: No, Your Honor, there was not.

QUESTION: You just weren't aware that that case had been decided?

MR. KLEIN: We were aware that the case had been decided, but it was clearly established that the sole issue was whether or not Director Chapman should have known about the dangerous propensities, which we --

QUESTION: There was no discussion about what the proper standard would be?

MR. KLEIN: No discussion. Now, counsel for the plaintiff did say that they were contending, and this was at the trial and opening statement, that they did contend that Monell was the same, in this instance would be the same as a suit against the entity itself under the holding of Monell.

But with regard to the standards under which the case was tried, there was never any discussion about Monell standards, and of course, again --

QUESTION: And you never objected to the standard that was being employed?

MR. KLEIN: No, Your Honor, because we felt like -- we felt like that was the appropriate standard. That's the way the case was brought. That's the way it was framed. And quite frankly, that's the way it was tried on the question of whether he should have known. Nothing about -- nothing about Monell.

QUESTION: Mr. Klein, on that point, the Court of Appeals concluded that the good faith defense was available because Chapman neither knew nor should have known of the misconduct, and I don't understand how they did that in view of -- maybe this is beyond the question presented, but in view of the unequivocal finding in the District Court that Chapman should have known.

How do you reconcile that?

MR. KLEIN: Well, Your Honor, what they did, they made their findings based upon good faith, and what the Court said, and they said the record was clear that, Number One, he knew nothing about Officer Allen, including his instability, that he had only assumed his office six months prior to the occurrence of this incident, that at the time he was in the process of instituting significant changes to stop police brutality in Memphis --

QUESTION: I understand all that, but still, is it not correct that the District Court did squarely say that in view of the various policies that your opponent has discussed, the code of silence and all the rest, that he in fact should have known.

MR. KLEIN: That's what they're saying.

QUESTION: That's what the District Court said.

MR. KLEIN: Yes, sir. The District Court said that. But the Court of Appeals disagrees.

QUESTION: They don't say the finding was clearly erroneous. In fact, they don't even acknowledge that the District Court made such a finding.

MR. KLEIN: They don't say anything about them being erroneous other than the fact than they say the District Court failed to consider the good faith immunity defense, and that based on what was in this record, it was clear that what Officer or Director Chapman has been doing in the six months that he had been in office was trying to effect changes to correct whatever problems existed.

QUESTION: How do we take the record? Should he or should he not have known of the misconduct of the officer?

MR. KLEIN: Well, we say that he should not have known, and of course that's what we argued down at the trial level.

QUESTION: And you lost before the District Court --

MR. KLEIN: We lost --

QUESTION: -- on that precise issue.

MR. KLEIN: The the precise issue of whether -- not whether he knew --

QUESTION: But should have known.

MR. KLEIN: -- but whether he should have known. Yes, sir. We lost that precise issue. And we could contend, and I could, of course, go back over the facts -- I won't reargue the case --

QUESTION: No.

MR. KLEIN: -- but we contended that --

QUESTION: Do you think that was a question of fact or a question of law, whether he should have known?

MR. KLEIN: What was decided by the Court of Appeals?

QUESTION: The question whether Chapman should have known of the officer's misconduct. Is that a question of fact?

MR. KLEIN: That's a question, I would say, a question of fact.

QUESTION: Isn't that a mixed question of fact and law?

MR. KLEIN: Well, conceivably it could be.

QUESTION: Well, as soon as they invoked the idea that Chapman should have known, it could only have been in his official capacity. Could it be in any other way?

MR. KLEIN: No, sir.

QUESTION: Why should he have to know the propensities of a dangerous policeman except in his capacity as an official of the city?

MR. KLEIN: That's --

QUESTION: Directly in charge.

MR. KLEIN: That's correct.

QUESTION: How do you get away from this being an official capacity case under Monell?

MR. KLEIN: Well, the way I get away from it, Your Honor, is because of the standard which should be applied under Monell. The fact that he was acting in his official capacity, and there are many cases which I am sure Your Honor is fully familiar with where we deal with individuals acting in their official capacity in the operation of whatever it may be, school board, police department, or what have you, and there can be no question that he was acting in that role. He wasn't acting as just an individual off the street. Of course not. He was acting in his official capacity.

But the standards that have to be applied are entirely different, we contend, with regard to whether or not he would be liable in his individual and liable in his official capacity, and the only way that he could be liable in his official capacity would be under the Monell standards, whereas he is the alter ego of the police department.

The police department obviously can't function without its representatives, and he, of course, stands in that position, and anything that he does, of course, does represent the police department. But in order to hold the police department liable or the city liable in this circumstance, we would have to, as we say, apply the Monell standards.

But I cannot say that he wasn't acting in his -- in an official capacity, but I think it is quite common that suits against officials, whether they be individual or in his official capacity, he was certainly acting as school board member, or as an officer of the state, or as a member of the police department.

But the fact that whether he is individually liable or liable in his official capacity really brings into play two different standards, and if you are going to say that liability or at least suing him in his official capacity is just another way of suing the entity itself, we submit that the Monell standards would have to apply, and not the typical negligence standards which apply in cases against individuals who, although are acting in a so-called official capacity, but who would be liable individually rather than as a representative of the city.

As I mentioned, the court preliminarily came very close to dismissing Director Chapman on a motion for summary judgment, and it was obvious at this point that the Court was only considering Director Chapman in his individual capacity.

QUESTION: Is that fact apparent from the record, that it came close to deciding?

MR. KLEIN: Yes, sir, it is. There is the --

QUESTION: I wish I could say that about every case that I have lost.

MR. KLEIN: If Your Honor please, in the appendix there is a reference to the order granting the motion for summary judgment, and in denying the summary judgment as to Director Chapman, the court said that it was denied, but granted leave to file a renewed motion for summary judgment if additional discovery shows that there was no actual or genuine issue as to Chapman's lack of knowledge.

So, when we say close, if Your Honor please, what we are saying is, the court was giving very careful consideration to whether there was even enough in the case to hold Director Chapman liable based on what he knew or should have known, and did grant leave to file a renewed motion on that one point.

But again, what we are saying is, it was clear that the only thing that was being considered was Chapman as an individual, and not in an official capacity, which would be another way of holding the city in.

The findings of the court, the District Court, with regard to the liability of Director Chapman, as I have stated previously, do not meet the Monell standards, and the court talks about, for example, unjustified inaction.

QUESTION: May I ask this question?

MR. KLEIN: Yes, Your Honor.

QUESTION: Assume for the moment that they did meet the Monell standards. What would be the effect on your client, Mr. Chapman?

MR. KLEIN: If they did meet the Monell standards?

QUESTION: Yes. That would make the city liable?

MR. KLEIN: That would make the city liable.

QUESTION: Would Mr. Chapman still be liable?

MR. KLEIN: No, Your Honor.

QUESTION: Well, are you representing him or the city here?

MR. KLEIN: Well, I am representing him because it is our contention the city is not involved, never has been involved, was never brought in, was never served with process, was never required to answer. There was never an amendment to bring the city in. There was never an amendment to try this lawsuit under Monell standards, and it is our position that we are here in behalf of Director Chapman.

But in response to your question, if the Monell standards applied and the city were found to be liable, it is our position there would be no liability as to Director Chapman.

QUESTION: Would he win either way this case goes?

MR. KLEIN: I beg your pardon, sir?

QUESTION: Would Monell win either way? Sorry. Would Chapman win either way this case goes? If he is viewed as liable personally, then it was found that he had good faith immunity.

MR. KLEIN: That's correct.

QUESTION: If we rule that Monell applies and he acted only in official capacity, he would be out then also, wouldn't he?

MR. KLEIN: That's correct, Your Honor.

QUESTION: So he doesn't need counsel here, does he?

MR. KLEIN: Well --

(General laughter.)

MR. KLEIN : I would use the expression, I am sort of put between the rock and the hard place with regard to this particular situation, but yes, we think he needs to be represented, because he is the only one in the lawsuit at this particular juncture, and that is the problem that we perceive with these official capacity lawsuits as trying to distinguish them from individual capacity lawsuits.

QUESTION: Mr. Klein, am I correct or is this just something in the briefs, or is it in the record that the city has undertaken to obey any judgment of the District Judge?

MR. KLEIN: No.

QUESTION: That is not in the record?

MR. KLEIN: No, sir. There was a finding, Your Honor, with regard to damages, but there is nothing in the record with regard to whether the city has undertaken to --

QUESTION: What is the finding with regard to damages?

MR. KLEIN: The finding with regard to damages was that Director Chapman, I believe, was responsible for approximately $26,000.

QUESTION: Oh, I see, it is the amount of damages.

MR. KLEIN: Yes, sir.

QUESTION: Yes, I see.

MR. KLEIN: That's --

QUESTION: Mr. Klein, are punitive damages available in an individual capacity suit if the facts warrant it --

MR. KLEIN: Yes, Your Honor, they would --

QUESTION: -- against someone in an individual capacity -- sued in their individual capacity?

MR. KLEIN: Yes, Your Honor.

QUESTION: But the court, the District Court below determined that no punitive damages could be awarded against Director Chapman, did it not?

MR. KLEIN: That's correct.

QUESTION: Since he was sued as the director of the police department.

MR. KLEIN: Sued in his official capacity. That's correct, Your Honor.

QUESTION: So that does look like at least to that extent it was tried as an official capacity suit?

MR. KLEIN: Well, to that extent, but, Your Honor, again, this is the point I was making before. That's the confusion and inconsistency with the case. When you look at the standard on which it was actually tried, whether he should have known, which is clearly not an official capacity, official policy case, and then the District Court's conclusion that, yes, he was found liable in his official capacity, that's where the inconsistency comes, and that's where the confusion comes.

And of course if the city had been brought in initially, then a lot of this would have been avoided, but unfortunately that wasn't --

QUESTION: Did you cross-petition? I can't recall. Did you cross-petition for Chapman on the theory that if in fact it were an official capacity suit, that the standard below was the wrong one?

MR. KLEIN: Not -- you mean before court?

QUESTION: Up here.

MR. KLEIN: No, Your Honor, we didn't, did not.

QUESTION: May I ask one other question about the should have known finding? Was the finding of the District Court that the supervisor should have known of the incident after it happened, or that he should have known of the officer's propensities even before the incident?

MR. KLEIN: Should have known of his propensities before. In other words, the idea or the theory was that if they knew about his dangerous propensities, some action would have been taken, hopefully, to either reassign him or --

QUESTION: And that with such knowledge, it would have been the equivalent of a policy to employ such an individual?

MR. KLEIN: Well, that's hard to read into what the District Court is saying. They do talk at one point about a policy, but we always get back to the threshold --

QUESTION: If you don't read that in, I can't understand why you wouldn't have raised more Monell issues, so that is why I was trying to figure out what your theory of the defense was.

MR. KLEIN: Well, my theory of the defense was that it was strictly a negligence question whether he should have known, and of course our whole effort was directed toward showing that there was really no way that he would have known, not having come and been there for the short period of time, and that he was trying to implement new policies, trying to make changes, but that it was almost as if they expected that he went back and read every file on every -- on some 1,250 or 1,275 police officers to determine who was good and who was bad.

It was our argument that the law just didn't impose that standard on him.

Thank you.

ORAL ARGUMENT OF ERIC SCHNAPPER, ESQ., ON BEHALF OF THE PETITIONERS - REBUTTAL

QUESTION: I think you responded to someone but I don't recall your response. Were you in the case from the outset?

MR. SCHNAPPER: Personally?

QUESTION: Yes.

MR. SCHNAPPER: No.

QUESTION: That's what I understood.

MR. SCHNAPPER: A couple of quick things. Mr. Justice Rehnquist earlier asked whether under Monell one had to have a policy. At 436 US at 690, the list of things that are sufficient under Monell includes a decision, so a discrete act or, I would think, failure to act as well as an ongoing failure would be sufficient.

Mr. Klein suggested, though I may have misheard him, that there was no discussion at the trial court level of the Monell standards. At Page 21 of our brief, we refer to a discussion of just those standards, and the need to prove policy under Monell.

However, we think that much of the discussion that we have presented runs a bit far afield of what the Court should appropriately decide at this juncture. There are two, perhaps two questions that we have been considering. First, did the District Judge properly find Chapman liable in his official capacity, and second, is such a judgment against an official in his official capacity a judgment which runs against the city rather than against Chapman personally.

It is only the second question that was decided by the Court of Appeals. Indeed, it was only the second question that was raised in the Court of Appeals.

The Court of Appeals at three points in the Joint Appendix, Pages 30, 39, and 46, characterizes this as a suit against Director Chapman in his official capacity, and at Page 46 squarely holds that a judgment against an official in his official capacity runs only against him personally.

Now, at this juncture, that finding, I think, stands almost undefended. I think Mr. Klein came close to conceding that it was wrong. Certainly he has not gone to the point of arguing that it is right. But in any event, that is the only decision that was actually resolved by the Court of Appeals, and we think that is all that need appropriately be considered here.

The question of whether the District Court should have imposed liability on Chapman in his official capacity is a much more far-reaching, far-ranging kind of bundle of problems, none of which were addressed below. In discussing them, we have conducted something of a grand tour of civil procedure jurisprudence, the problems of Monell, of Percunier. Mr. Justice Stephens raised some issues about the Swind against Pullman standard. We've got problems under Rules 8 and 9 and 12 and a bunch of other rules.

None of these questions were raised below. None of these questions were decided below. And none of these questions in our view need be decided here.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:16 p.m., the case in the above-entitled matter was submitted.)