OKLAHOMA CITY v. TUTTLE

Transcript: 

ORAL ARGUMENT OF BURCK BAILEY, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments first this morning in the City of Oklahoma City v. Tuttle.

Mr. Bailey, you may proceed whenever you are ready.

Mr. Bailey: Mr. Chief Justice and may it please the Court, on the night of October 4, 1980, an Oklahoma City police officer named Julian Rotramel shot and killed a man named William Tuttle.

The shooting occurred outside a bar in Oklahoma City called the "We'll Do Club".

The bar was located in what Plaintiff's expert called an interstitial city area, what he described as a rough part of town.

The events leading up to the shooting are unusual.

The evidence was that Mr. Tuttle was a frequent patron of the bar, and that day he had been in and out of it several different times, He was said to be despondent over a quarrel he had had with his wife, and his despondency had caused him on a previous occasion following a quarrel with his wife to slash his wrist in the bar.

He was... he called the Oklahoma City Police Department and reported an armed robbery in progress and described to the dispatcher the armed robber as himself.

He said,

"He's a white male."

"He's about 37 years old."

"He has glasses, brown hair."

and such as that.

The dispatcher put out an all-points bulletin to all officers, and there were two officers patrolling separately in the general vicinity of the bar.

One of them was Julian Rotramel, a rookie police officer who had been out of the Oklahoma City Police Academy about ten months following an 18-week training exercise at the Oklahoma City Police Academy.

He was 22 years old at the time.

Another officer patrolling in the general vicinity was a veteran police officer named Lennox.

Rotramel arrived on the scene almost within one minute after he received the call.

He was within eight or nine blocks of the club.

What happened after he went into the club is in sharp dispute in the testimony.

Rotramel's testimony was that he walked into the darkened bar... it was a so-called "blind" building, concrete blocks, with a single door that operated on a trap spring that closed behind you... and found the person later found to be Tuttle; in any event, the person who matched the description of the robber at the bar, and that Tuttle walked toward him as if to leave through the door behind him.

Rotramel said that he put his hand on his shirt or arm or chest, and anyway he held him, and that Tuttle said something that's in dispute.

Why can't I leave, or something like that.

And Rotramel replies,

"I've got a call."

"Stay put."

It's Rotramel's testimony that Tuttle tried twice to reach for his boot, and that he straightened him up.

The two bartenders, female bartenders in the bar, testified they saw Tuttle make no such action to retrieve anything from his boot.

Rotramel lighted his flashlight, it was dark in there, and signaled to the bartender to come toward him.

His testimony was he asked if there was a robbery in progress, and that she uttered only one word, "robbery", and it doesn't indicate whether it was with a question mark like "robbery"?

or whether it was "robbery".

It's not clear in the record.

In any event, it does seem to be clear that Tuttle then broke loose from the officer's grasp and in the words of the Plaintiff's witnesses, darted through the door and that Rotramel spun around and went through the door after him, in pursuit.

And whether the door slammed shut or was propped open by the officer's foot is also disputed.

In any event, at some point in whirling after him, the officer drew his service revolver.

Outside the bar, there was no witness other than Rotramel.

He said that he saw Tuttle down in a crouched position with his hand going for his boot.

He saw no weapon.

He said he had hollered "halt" when the man went out, and "halt" when he saw him crouched with his hand in his boot, and that Tuttle looked over his shoulder at him and started to come up, and he fired.

It was Plaintiff's version that because of the exit wound on Tuttle, it could not have happened the way Rotramel said it happened, because the bullet exited higher than it entered in the back.

So he must have been in a bent-over position.

So, in any event, he didn't come straight up.

He was still in a crouched position.

Unidentified Justice: Mr. Bailey?

Mr. Bailey: Yes, ma'am.

Unidentified Justice: Are you objecting to the jury instructions or to the sufficiency of the evidence in the case?

It isn't clear to me.

Mr. Bailey: Both, Your Honor.

We take the position that under no circumstance was the evidence sufficient to go to the jury because there was no proof of any official policy or customs promulgated by the City of Oklahoma City under the Monell standard, and that the court's instruction on a single incident deemed sufficient to let the tryers of fact infer an official policy to deprive someone of their constitutional rights was--

Unidentified Justice: Did you make your objections to the instructions before the trial court?

Mr. Bailey: --The objection was made, Your Honor, not by... I was not at the trial, but the objection was made in chambers, I am advised, and then following... off the record... and then following the giving of the instructions, the trial judge summoned the counsel to the bench, at which point there is an objection in the record by the City Attorney, the Assistant City Attorney trying the case, which is ambiguous.

He says,

"We object to that City liability instruction that contains a single instant language."

Plaintiff in their brief take the position that that is an insufficient objection and doesn't comport with the Federal Rules of Civil Procedure that says it must be specific.

But I am advised the trial judge well knew what the objection was.

That had been aired in considerable detail in chambers, and that it was just to preserve the record at the... on the record, as it were, following the giving of the instructions.

Unidentified Justice: Is there anything in the record that would enable us to figure out for ourselves whether the trial judge full well knew the meaning of the objection?

Mr. Bailey: Yes, Your Honor, there is because this was also raised in pretrial briefs, that is, the single incident objection of the City.

It was a very central part of dispute between these parties from the beginning.

Unidentified Justice: So you say the term "single incident" used by the Assistant City Attorney had taken on a nomenclature that meant something more than just the words alone might mean to the trial judge?

Mr. Bailey: I think there's no question of that, Your Honor.

Unidentified Justice: But, Mr. Bailey, was there other evidence besides the single incident on the questions of policy or custom?

Mr. Bailey: We take the position there was no other evidence on the issue of policy or custom.

There was evidence from the Plaintiff's expert that the training this officer received was grossly inadequate to deal with an armed robbery situation.

The case was tried on that basis, as I see it, Your Honor.

The Plaintiff's case was predicated on a contention that the State... that the City was grossly negligent in the training that it gave Officer Rotramel, and that that constituted a deliberate indifference to the rights of the citizens of Oklahoma City.

Unidentified Justice: But did not bear on whether there was a policy of training which was inadequate?

Mr. Bailey: Well, that is our position, Your Honor, that that in and of itself is no showing of an official policy.

To state, it seems to me, that the City of Oklahoma City has an official policy of inadequately training its officers is preposterous.

And there was no proof of any pattern or tradition of misbehavior or any other evidence whatever of any aberrant police behavior.

There was... this record is barren of that.

Unidentified Justice: By that, do you mean that they might have introduced evidence that in the previous calendar year, 13 fleeing persons had been shot with no further explanation?

Mr. Bailey: Well, I think that that would be--

Unidentified Justice: Is that the kind of evidence that you say would have tended to support their case?

Mr. Bailey: --I'm not even sure if I would say that, but that is evidence that certainly would point in that direction, that there would be some misbehavior on the part of the police, not necessarily shootings.

I don't really mean it has to rise to that level of seriousness, but some showing of an insensitivity to constitutional rights that the City Council would be able to infer that the City's training was not adequate.

I would suggest, Your Honor, that it's a difficult proposition, logically, to say that the City can be held to any negligence standard for training its police officers.

But I don't need to say that in this case because there's no proof of any other instance, other than this single event, this single incident.

Unidentified Justice: Well, Mr. Bailey, would you take the position that liability could be imposed under Monell, based on a single incident of misconduct, coupled with independent evidence of inadequate training or supervision?

Is that enough?

Mr. Bailey: I don't think it is enough, Your Honor.

I don't think so, because just recently, about two months ago, since our briefs closed, there's a Fourth Circuit opinion that I think speaks to Your Honor's point.

There, an automobile accident victim sued the City of Newport News, saying that the City had grossly, negligently trained its police officers in knowing how to give medical treatment to an automobile victim, and that she had been injured, her spine was injured as a result of them putting her in a cab instead of in an ambulance.

And if you... there's no logical stopping point, we would submit, if you can predicate municipal liability solely on a contention that they negligently trained an officer or a fireman or a meter reader.

There is... it opens up Section 1983 to simple tort actions.

Unidentified Justice: What if the city or town adopted a policy of hiring police with no training at all?

Can that amount to the equivalent of knowledge, constructive knowledge?

Mr. Bailey: I've thought about that, Your Honor, and frankly I doubt that there is a constitutional duty on the part of a city to train police officers at all.

I expect that there are hundreds of municipalities that hire police officers with no training at all.

And indeed, in the Languirand case in the Fifth Circuit, recently decided, the officer who shot the suspected prowler had no training whatsoever.

Unidentified Justice: Is it not true that many, or at least a considerable number of small communities elect, by popular election, some of their police people, sheriffs, and constables?

Mr. Bailey: They do in the little town I grew up in, Your Honor.

And I don't know, I suspect there are many that do that.

Unidentified Justice: Mr. Bailey--

Mr. Bailey: Yes, Your Honor,--

Unidentified Justice: --You mentioned, I think, that this officer had been only recently graduated from a police training academy.

Was there any evidence of the kind of training he had at the academy?

Mr. Bailey: --Tremendous amount of testimony about that.

And that, in fact, was the central part of the case.

Unidentified Justice: Was that offered as a predicate for the conclusion that there was a practice, and that the practice was inadequate to train this officer?

Mr. Bailey: I think that's what it was offered for, Your Honor.

It was offered to show he was negligently trained.

He went to the Oklahoma City Police Academy, which the former Oklahoma City Police Chief testified was rated by the FBI as the third best in the nation, for 18 weeks, 700 hours of training.

The Plaintiff, through Dr. Kirkham, a criminologist from Florida, testified that he had studied the curriculum and that it did not contain more than 24 minutes of time devoted to the response to an armed robbery call, and that that was grossly deficient.

That was his testimony.

The testimony from the police side was different from that.

It was that the training was extremely sophisticated and thorough and complete.

The problem I see with that, Your Honor, is that the curriculum was extensive.

Part of it is established by the state law of Oklahoma, what a police officer must study.

It would be difficult, I would think for the Court to fashion a test as to what curriculum needs to be taught in every city police department in the country.

There vast differences of opinion about that, I think, among knowledgeable professionals.

Unidentified Justice: Well, independently of the challenge you make to the instruction, suppose we were to agree with you that the instruction was error.

Would we then have to address whether the rest of the evidence sufficed to support a finding of policy or custom?

Mr. Bailey: I doubt that you would have to, Your Honor.

I think we would like for the Court to do so.

It just strikes us that a contention that the training an officer receives is the springboard to municipal liability is a hazardous test.

Unidentified Justice: Mr. Bailey, it seems to me you are making quite a different argument than the question presented in the cert petition, which was focused on the single incident point, rather than whether training can ever be... kind of training can ever be a policy.

Are you abandoning your single incident--

Mr. Bailey: No.

not at all, Your Honor.

That is, we think that's our strongest point, and we are urging that to the Court.

But we think that there was insufficient--

Unidentified Justice: --On that point, is it your position that the single incident could never give rise to 1983?

I was thinking about a hypothetical case where you might have a policy of shoot to kill traffic offenders or something, an absurd hypothetical, I recognize.

But suppose you had a very extreme, very dangerous policy, and the first implementation of the policy resulted in a tragic death.

Could that ever constitute a violation?

Mr. Bailey: --Your Honor, I think that points up an interesting distinction in this case.

If that were the policy, shoot to kill, as you suggest, or shoot on mere suspicion, it seems to me that policy just wouldn't pass constitutional muster.

That policy would not.

Here, the policy of the City of Oklahoma City on the use of firearms was, by Plaintiff's own expert witness, ideal.

And the position taken in the trial court by Plaintiff was that Rotramel departed from City policy which said an officer can use his weapon only in defense of life when the suspect is armed or threatening great bodily harm, and he must always use the utmost discretion with due respect for the sanctity of human life, that sort of thing.

Unidentified Justice: But then if that's your theory, you are really saying that the evidence doesn't show an invalid policy.

And that would be true if there were three incidents or nine incidents or one incident, I suppose.

Mr. Bailey: Your Honor, there's a dichotomy there.

The City policy now, in Plaintiff's brief, is being questioned.

At the trial, it never was.

The contention was that the officer was grossly inadequately trained, not that the City policy was bad, but that the policy in the sense that they grossly inadequately trained the officer was flawed.

That was the contention at trial.

Unidentified Justice: Well, and yet the instructions do say the existence of such a policy is a question of fact for you to determine, and that was the question; whether there was a policy of putting unqualified people on the street.

Mr. Bailey: That's correct, Your Honor, not that... I doubt in all... I doubt in all truth that the training the officer received had anything to do with this incident.

I've thought about that.

I think if they--

Unidentified Justice: But the jury seems to come to a different conclusion.

We have to deal with what the jury decided on the basis of instructions.

Mr. Bailey: --I'm not... the jury found in favor of the officer, Your Honor, as you will recall.

They found in favor of the officer and against the Plaintiff on the Plaintiff's suit against the officer, presumably on the good faith qualified immunity that exists for the benefit of City employees, but we don't know that for sure, and against the City.

And that has been the pattern, Your Honor, in these cases that are cited... some are not cited.

In very recent cases, there's an awful lot of litigation in this area going on.

But the juries return verdicts in favor of the officers and against the municipality.

And they are... in the cases we've cited, it's astonishing that they are all for $1,500,000, all four of them.

Unidentified Justice: Well, juries return verdicts in favor of railroads, or against railroads and in favor of engineers, too, in personal injury cases.

Isn't part of your argument, as least as I understood you to have been previously making it, that no matter what one says about the Oklahoma City policy of training officers, that isn't the same kind of policy as the New York City policy about maternity leaves that was involved in Monell.

Mr. Bailey: It's not the same at all, Your Honor.

Monell was a specific, express, written, official policy of the City which didn't pass constitutional muster.

Unidentified Justice: And it also was a policy that directly affected constitutional rights.

Mr. Bailey: That's true.

Yes, Your Honor, I agree with that.

And this query, whether there's any constitutional right that the body has to a certain quality of training by City employees.

I'm not certain that's true.

Unidentified Justice: Did the trial judge, in his instructions, define what a policy was?

Mr. Bailey: I don't recall that he did, Your Honor.

He might have.

Unidentified Justice: Did he say anything about negligence or gross... or recklessness?

Mr. Bailey: A great deal.

Unidentified Justice: Did he say that that was enough to... that was enough to amount to a policy?

Mr. Bailey: I think he did, Your Honor.

Unidentified Justice: And did he say that a single instance, or did he imply that a single instance of gross negligence or recklessness or disregard could amount to a policy?

Mr. Bailey: Specifically.

Yes, Your Honor.

Unidentified Justice: There were no objections to that?

Mr. Bailey: There was an objection to that language, as I was responding to Justice O'Connor.

Unidentified Justice: I thought part of your argument and part of the question that you raised in your cert petition was that a single instance of gross negligence or of careless disregard, reckless disregard, could never amount to a policy.

Mr. Bailey: Well, that's true, Your Honor, and that was objected to.

Unidentified Justice: That is the heart of your case, isn't it?

Mr. Bailey: Yes.

Unidentified Justice: And there was also no objection to the trial judge saying to the jury that the issue of policy is a question of fact for the jury.

But if you are going to define a policy, that a policy can be made out by a single act of gross negligence, that is a legal proposition.

Mr. Bailey: I quite agree, Your Honor.

Unidentified Justice: Well--

Mr. Bailey: There was a motion for directed verdict made by the City at the close of the Plaintiff's proof, which was denied on the single incident basis.

There was a motion for judgment notwithstanding the verdict made.

Unidentified Justice: --And the Court of Appeals seems to have agreed that a single instance of gross negligence could amount to a policy.

Mr. Bailey: Well, that's... I think they had to agree with that, because that's the only proof in the record.

Unidentified Justice: And you think the question has been preserved all the way?

Mr. Bailey: Oh, yes.

I don't think there is any serious question about that, Your Honor.

Unidentified Justice: Counsel, the Respondent brought out the policy of Oklahoma, which was not to shoot in a circumstance like this.

Mr. Bailey: That's correct.

Unidentified Justice: Is there anything in the evidence, as to what, if anything, was done by the City to the police officer?

Mr. Bailey: I'm not sure there is anything in the record about it.

Rotramel departed the police force shortly thereafter for other employment.

Unidentified Justice: Oh, I see.

Mr. Bailey: And he went to work for, I think, an oil company or something.

Unidentified Justice: What worries me is, the jury couldn't just have ignored that fact, that the policy, as expressed by the City, was not to do what this man did.

Mr. Bailey: Well, that's right.

Unidentified Justice: And then the man innocently, it seems to me, did something wrong.

What happened?

Mr. Bailey: I think the situation was this.

Your Honor has asked me what happened.

As I was beginning to state a moment ago to Justice Stevens' question, I doubt that if they had given this officer five years of training on responding to armed robbery, it would have had a thing in the world to do with this incident.

You've got an armed robbery call in a rough area, in a dark bar.

The person matches the description of the robber precisely.

He makes... he darts out; it's dark.

I think the officer said,

"It wasn't a question of apprehending him; I thought my life was in danger."

"I thought I was doing what I had to do to save myself."

And I suspect that training really didn't have anything to do with that; that he was acting... you've got a very edgy officer going into that situation.

It was the Plaintiff's case at trial that the officer should not have gone in that bar alone; that he should have waited for a back up.

But they are always worried about hostage situations.

We had a horrible situation in Oklahoma City.

Well, my time is up, Your Honor, and I'll complete that.

Unidentified Justice: May I just ask one quick question, if I may?

In response to Justice White, you said that the instructions did refer to the single incident business.

Are you referring to some instruction other than the one quoted by the Court of Appeals, or is it supposedly the same--

Mr. Bailey: I don't know whether it's printed in the Court of Appeals decision or not, Your Honor.

I don't remember.

I think it was.

Unidentified Justice: --I'd be... it would help me to know what instruction you are complaining of.

Maybe you'll do it on your rebuttal.

I don't want to use up all your time.

I, frankly, don't find what you describe in your colloquy.

Mr. Bailey: Well, it's this instruction, Your Honor.

It's on page 44 of the Appendix, where the court says this:

"Absent more evidence of supervisory indifference, such as acquiescence in a prior matter of conduct, official policy such as to impose liability on the City of Oklahoma city under the Federal Civil Rights Act, cannot ordinarily be inferred from a single incident of illegality such as the first excessive use of force to stop a suspect; but a single, unusually excessive use of force may be sufficiently out of the ordinary to warrant an inference that it was attributable to inadequate training or supervision amounting to deliberate indifference or gross negligence on the part of the officials in charge."

Unidentified Justice: I see.

Chief Justice Burger: Mr. Hughes.

ORAL ARGUMENT OF CARL HUGHES, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Hughes: Mr. Chief Justice, and may it please the Court, this is an appeal from the jury verdict rendered in the Western District of Oklahoma, as affirmed by the United States Court of Appeals for the Tenth Circuit.

The issue before this Court is not whether the City of Oklahoma City should have to pay damages to the estate of William Adam Tuttle; the overall question of liability depends on a number of issues which are simply not before this Court.

First, liability depends in large part upon resolution of factual issues which were resolved by the jury in the case and are subject to limited review, due to the provisions of the Seventh Amendment.

Second, most of the legal issues were addressed in instructions given by the Court which were simply either unobjected to or objected to in such a way as to be insufficient under Rule 51.

And, third, any other issues, other issues that have been discussed here this morning simply aren't raised by the cert petition.

In this case, the policy, the case was submitted to the jury in the court's instructions on three separate theories; one, that the shooting itself was justified under the policies of the City of Oklahoma City.

As I was interested in Mr. Bailey's concession that if they'd a shoot to kill, shoot on suspicion policy, that that would have been... would not have passed constitutional muster and would have been a basis for liability, and that's precisely what the evidence showed at the trial.

The chief of police testified, and it was a matter of evidence, it was a matter of factual issue that was resolved against the City, that the officer was entitled to shoot on the basis of suspicion, if he had any suspicion that his life was in danger.

Very briefly, the facts, as opposed to being in a light most favorable to the City, in a light most favorable to Mr. Tuttle, who prevailed in the trial court, showed that Mr. Rotramel did go into the bar and was advised... was not a dark bar, but it was a well-lit bar... that he was advised upon entering the bar, he asked about an armed robbery, the bartender, another bartender advised him that there was no armed robbery in progress.

Unidentified Justice: Just one little minor point.

You said it was a well-lit bar.

Why did he need to turn on the flashlight?

Mr. Hughes: He used it merely just for motion, just to instruct--

Unidentified Justice: In a brightly-lit bar?

Mr. Hughes: --I don't know that the light was turned on.

I don't recall that being the evidence.

Unidentified Justice: Well, you said it was a well-lit bar.

Mr. Hughes: It was a lit bar.

Unidentified Justice: Well-lit.

Mr. Hughes: Well, I took it--

Unidentified Justice: And you still need a searchlight.

Mr. Hughes: --Only for purposes of motion, Mr. Justice Marshall.

Unidentified Justice: I'd rather not emphasize unimportant points.

Going back to your statement about whether the officer thought his life was in danger, if the officer in a given situation, an officer believes that his life is in danger, you are saying he is not entitled to shoot?

Mr. Hughes: Of course, that issue is not preserved and presented in this case.

I say that there has to be more than just a totally unfounded belief that his life was in danger, just a mere suspicion.

And there was no... nothing more than that in the evidence in the light most favorable to the--

Unidentified Justice: Well, the jury's verdict would suggest, at least it is susceptible of a meaning that the jury thought that the police officer did have a reasonable basis to think his life was in danger, and therefore they excused him.

Mr. Hughes: --That's a concern that I have about an appellate court reviewing factual determinations that were made at the trial.

This court in the record doesn't illustrate, and you can't see... I tried the case and I did see the timidity.

It was sort of like Mr. Creeper leaves the Marine Corps and goes on the Oklahoma City Police Force with a gun.

You can't see the attitude of Rotramel.

I mean he didn't, to me at least, portray the attitude of a Clint Eastwood Dirty Harry.

Unidentified Justice: How it was portrayed to you or to some judge is not as important as how the jury viewed him.

Now, the jury returned a verdict indicating that they thought he was justified.

At least that's the way I would read the jury's verdict; that he was justified in what he did.

Mr. Hughes: I didn't... I respectfully disagree... read that it went that far; that it merely held that he was in good faith in what he did.

In other words, that he thought he was complying with the policy, that he thought he was passing constitutional muster, but that's simply not what the facts illustrated and what the jury resolved.

Unidentified Justice: Mr. Hughes, a moment ago you said that the policy that was relied upon by you as Plaintiff was a policy of Oklahoma City to allow shooting on suspicion.

I am looking at the Court of Appeals' opinion, page 7A and 8A of the petition for certiorari.

And it seems to me they devote one paragraph to the question of policy there, and the only policy they talk about is negligence and gross negligence and supervising.

They don't mention the policy that you refer to.

Are you saying that the Court of Appeals upheld the policy contention on the basis that you're talking about of a policy of shooting on suspicion?

Mr. Hughes: Well, that issue, in terms of--

Unidentified Justice: I think you can answer the question yes or no.

Mr. Hughes: --Well, I think they did; yes.

Unidentified Justice: The Court of Appeals mentioned in its opinion the policy which you refer to of shooting on suspicion?

Mr. Hughes: The issue--

Unidentified Justice: Did the Court of Appeals mention that in its opinion?

Mr. Hughes: --I don't recall them mentioning it, but the issue wasn't before them in that context and in that posture.

And I think when the issues are resolved in the trial court, we take less up to the next level, and less up to the next, and it's simply a matter that was addressed in the instructions, in unobjected to instructions in the trial court.

Unidentified Justice: Well, that may be, but if the Court of Appeals affirmed on some ground that the policy was negligent training or deliberate disregard of rights in training, if that's the policy they identified... and if they were wrong in that, I don't know that we should affirm on your ground.

Mr. Hughes: Well, of course, that's, in my view, the purpose of Rule 51.

You know, we have to object to the instructions, object to the problems, and properly preserve the error, and it's simply not properly preserved.

I mean the only objection to the instructions that's in the record, and I take issue with the statements about matters that occurred outside the record, the only instruction that's in... the only objection that's in the instruction is quoted in full at footnote 62 at page 45 of our brief.

We make a second objection, Your Honor, particularly to the one, the Oklahoma City language, the language in the light of the City of Oklahoma City, which is the single occurrence language.

That is simply the only matter that was objected to in the trial court and preserved for review, and I don't think that preserves anything.

Unidentified Justice: Do you agree that the trial court instructed the jury that a single instance of gross negligence, or however you want to describe it, that you may infer a policy from that?

Mr. Hughes: Well--

Unidentified Justice: Do you agree or not?

Yes or no?

Mr. Hughes: --That language is contained in the instructions, yes.

Unidentified Justice: So you do agree with that?

Mr. Hughes: Yes.

Unidentified Justice: So that it's possible that the jury concluded that there was a single instance of gross negligence, and that was a policy, was enough for a policy.

And didn't the Court of Appeals agree to that?

Mr. Hughes: The Court of Appeals agreed that the instructions should be taken as a whole.

Unidentified Justice: Yeah.

Well, didn't the Court of Appeals agree that a policy could be made out from a single instance of gross negligence?

Mr. Hughes: I believe that they did.

Unidentified Justice: Is that a question of law or of fact?

Mr. Hughes: In the light of this case, I thought it was a question of fact.

Unidentified Justice: Well, certainly the trial judge seemed to think so.

Mr. Hughes: I would say that's a fair and accurate statement.

Unidentified Justice: Although he did instruct the jury, as a matter of law, that it could be made out from a single instance.

Mr. Hughes: He did say that.

Of course, I don't see that as an issue that's... there were more issues than the single... there were more theories than the single incident theory, than the shooting itself, that were presented.

Training, supervision, as well as the policy of shoot to kill and shoot to center mass were presented.

Unidentified Justice: Of course, what we've taken is the Court of Appeals' judgment.

It might be that if we were versed on this issue, the Court of Appeals might affirm on your theory on remand.

But all we have before us is the Court of Appeals' opinion.

That's the basis that they have said was sufficient.

And that just talks about training.

Mr. Hughes: I'm sorry.

I don't think I follow that.

Unidentified Justice: Well, I don't know how I could make it any more clear.

I said the court of Appeals' opinion, when it talks about policy, speaks only of training and grossly negligent training.

That's all we have before us in this case as a matter of policy from the Court of Appeals' opinions.

You may be absolutely right that there were 18 different policies offered in the trial court, but the Court of Appeals discussed only one.

Mr. Hughes: They discussed training, supervision, and the shoot to kill policy, as I recall.

Unidentified Justice: I thought a minute ago, you said the Court of Appeals did not discuss the shoot to kill policy.

The Court of Appeals' opinion is about eight pages long.

It devotes about one page to policy.

Did it or did it not discuss the shoot to kill policy?

Mr. Hughes: Not in the specific context that you're talking about.

Unidentified Justice: Well, did it discuss it in some other context?

Mr. Hughes: It discussed it in the context of the overall case is the way I--

Unidentified Justice: Well, where did it discuss the shoot to kill policy in the context of the overall cases?

Mr. Hughes: --I don't think I can find it in here.

Unidentified Justice: But you are confident that the Court of Appeals did discuss it?

Mr. Hughes: Yes.

Especially in... in any event, yes.

And the issue is even narrower.

The issue is what is presented by the cert question, and the issue comes down to, as I see it, whether or not... whether we have to prove the one free bite theory; whether a single incident, taken together with training, an independent proof of a policy is sufficient.

Unidentified Justice: Mr. Hughes, it seemed to me that basically the theory proceeded on by the Plaintiffs below was that an isolated incident, plus evidence of the training that was given police officers, was enough to establish the liability here.

And what that argument boils down to, as far as I can understand it, is that other procedures in terms of training a police officer would have reduced the likelihood that Officer Rotramel would have used excessive force.

Is that the thrust of the theory?

Mr. Hughes: I would say so.

Unidentified Justice: Well, didn't Rizzo v. Goode reject that very approach as the basis for liability under 1983?

It seemed to me that in Rizzo, this Court rejected that.

Mr. Hughes: Well, we saw it as just a straight Monell issue.

Policy plus causation.

And that's the way it was presented.

Unidentified Justice: Well, didn't Rizzo deal with exactly that situation for purposes of 1983 liability?

Mr. Hughes: I don't know.

In any event, the theory presented to the Court at this time by the City is that Rotramel departed by City policy.

The theory presented in the trial court was that Rotramel's actions were in complete compliance with City policy.

They have changed their theory as they proceeded through the appellate level.

The long and short of it is, the matter was properly instructed on in our view, the evidence was submitted to the jury, the jury resolved the factual issues against the City of Oklahoma City, properly so.

There is just nothing before the Court at the present time to properly preserve for resolution.

Unidentified Justice: May I ask you a question?

I didn't realize you were just finishing your argument.

Supposing you had a case in which the City didn't train their officers how to drive, and they put an officer in a car, he went out and got in an automobile accident and killed somebody, just because he didn't know how to drive.

1983 liability or not under your theory?

Mr. Hughes: Under my theory?

Of course, under my theory, it's a fact question as to whether or not the degree and nature of it, under my theory--

Unidentified Justice: Just total... they just let people out who didn't even have a driver's license.

Mr. Hughes: --If they had a policy.

Unidentified Justice: The policy was, we don't train people to drive.

We hire them and we assume they can drive.

We don't even ask them.

Mr. Hughes: Under those circumstances--

Unidentified Justice: But there's not any use of guns or anything.

It's just an automobile accident.

They a pedestrian.

Mr. Hughes: --Under our theory and our reading, that would create liability.

Chief Justice Burger: Do you have anything further, Mr. Bailey?

Mr. Bailey: If the Court has any questions I'll respond.

If not, I'm finished.

Chief Justice Burger: I hear none.

Thank you, gentlemen.

The case is submitted.

We'll hear arguments next in Burger King Corporation v. Rudzewicz.