No. CIV-97-113-B

DRY, et al.,

Plaintiffs,
vs.

USA, et al.,

Defendants.

COMES NOW Plaintiffs Juanita McConnell and Rosie Burlison, by and through their attorney, Douglas G. Dry, and responses to Defendants' Brief in Support for Motion for Summary Judgment.

Plaintiffs McConnell and Burlison were arrested by the Choctaw Nation police and transported to Clayton City Jail for detention. The Choctaw Nation and the City of Clayton have a valid cross-deputization agreement, however, no additional training was provided Clayton police officers in enforcing this agreement. The Choctaw Nation is a quasi-sovereign nation, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), and the laws of the State of Oklahoma do not apply, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). The U.S. Constitution does not apply on Choctaw lands, Talton v. Mayes, 163 &.S. 376 (1896), resulting in the tribal members not having the civil liberties guarantees as other U.S. citizens. The Indian Civil Rights Act, 25 U.S.C. 1301, et seq., is the only civil liberties available to Choctaw citizens on Choctaw land, Santa Clara Pueblo vs. Martinez, 436 U.S. 49 (1978).

Plaintiff McConnell was arrested by the Choctaw Nation police for passing out pamphlets. Plaintiff's Answer to Defendant City of Clayton's Interrogatories No. 3 attached to Defendant's Motion for Summary Judgment. Upon being booked into Clayton jail, the dispatcher asked the Choctaw officers the charges against Plaintiff McConnell. Pl. Answer to Def. City of Clayton Interrog. No. 4. Plaintiff McConell asked Defendant Chief of Police Terry Bell for medical attention but her request was ignored. Id., Exhibit 1 to Plaintiff's Response to Kim Reed's Motion to Dismiss (video tape of McConnell's arrest).
Plaintiff Burlison was arrested by the Choctaw Nation police for videotaping the arrest of Plaintiff McConnell. Plaintiff's Answer to Defendant City of Clayton's Interrogatories No. 3 attached to Defendant's Motion for Summary Judgment. Upon being booked into Clayton jail, the dispatcher asked the Choctaw officers the charges against Plaintiff Burlison. Pl. Answer to Def. City of Clayton Interrog. No. 4.

Proposition I

Defendant Terry Bell was, at all times relative to the complaint, chief of police for the City of Clayton, whom, by happenstance, acted as jailer on the day the Plaintiffs were arrested. As the chief of police, Defendant Bell had final authority over the actions taken in booking the Plaintiffs McConnell and Burlison into the Clayton jail, as a cross-deputized officer under the cross-deputization agreement (CDA) with the Choctaw Nation. Defendant Bell had the responsibility for establishing final government policy respecting the handling of Choctaw Nation prisoners on the day of the arrests, and as such, the City is liable for his actions. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).

Even if Defendant Bell was only a mere jailer on the day of the arrest, he would still be liable if he "violate[d] a clearly established statutory or constitutional rights of which a responsible person would have known. Medina v. City & County of Denver, 960 F.2d 1493, 1497 (10th Cir. 1992), Housley v. Dodson, 41 F.3d 597, 600 (10th Cir. 1994), Foote v. Spiegel, 995 F.Supp. 1347 (D. Utah 1998). A reasonable law enforcement officer would have known that detainees had a constitutional right to free speech and free assembly without fear of arrest. The very fact that a cross-deputization agreement was necessary between a state subdivision and the Choctaw Nation would make a reasonable law enforcement officer aware laws that apply within the Choctaw Nation would not be the same as the laws that apply within the state of Oklahoma. Indian law has been uniquely federal since the 1830s, and can only be changed by an act of Congress. A reasonable law enforcement, with adequate training, would have known that it was possible to arrest Indian citizens on Indian law by Indian police for free speech, and after such arrest, would require a state subdivision to detain Indian citizens for actions not illegal under state and federal constitutions. The very reason for the cross-deputization agreement should have made state law enforcement officer aware that they may be liable in a lawsuit like the case in hand.
Defendant Bell should not be granted summary judgment. He had actual knowledge of, and acquiesced in, the constitutional violation of Plaintiffs McConell and Burlison. Woodward v. City of Worland, 977 F.3d 1392, 1400 (10th Cir. 1992), cert denied, 113 S.Ct. 3038 (1993).

Proposition II

To establish an action against a municipality under section 1983, the plaintiff must demonstrate two elements: (1) a municipal employee committed a constitutional violation, and (2) a municipal policy or custom was the moving force behind the constitutional deprivation. Monell v. Dept. of Social Services, 436 U.S. 658, 694 (1978). Failure to train may cause liability to attach to a municipality when the failure to train reflect a deliberate or conscious choice by a municipality -- a "policy," City of Canton v. Harris, 489 U.S. 378, 389 (1989). The failure to train must amount to "deliberate indifference to the rights of persons with whom the police come into contact." Id at 388, see also Houston v. Reich, 932 F.2d 833, 888 (19th Cir. 1997) (declaring municipality liable "[w]here there is essentially a complete failure to train, or training is so reckless or grossly negligent that future misconduct is almost inevitable."). A plaintiff "must prove 'the need for more or different training is so obvious, that the inadequacy so likely to result in the violation of constitutional rights that the [chief of police] can reasonable be said to have been deliberately indifferent to the need' for additional training." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996).
As stated above, the laws that pertain to Indians have been unique since the Chief Judge Marshall's trilogy of cases in the 1820s and 1830s. Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543 (1823), Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Criminal jurisdiction in Indian Country has been federal or tribal since these cases. In U.S. v. Burnett, 777 F.2d 593 (10th Cir. 1985), the court ruled that Oklahoma must take some affirmative action, either by constitutional amendment or legislation, to extend criminal jurisdiction over Indian country, Id. at 597, and it has not, State of Oklahoma v. Burnett, 671 P.2d, 1165 (Okla. Crim. App. 1983). See also U.S. v. Sands (968 F.2d 1058 (10th Cir. 1992).

Cross-deputization agreements between tribes and state law enforcement entities began after these decisions. Congress responded to these cases, and other cases , by passing the Indian Law Enforcement Reform Act, 25 U.S.C. ' 2800, et seq., the basis of authority allowing the Bureau of Indian Affairs (BIA), tribes and state entities to sign CDAs. Section 2806 (d) of the ILERA specifically does not alter jurisdiction of the Choctaw Nation or City of Clayton under the CDA. What authority one entity had prior to the Act, or CDA signed pursuant to that Act, the same authority exists after the Act or CDA. The City of Clayton was not exempt from the U.S. Constitutional civil liberties by the CDA with the Choctaw Nation. The Defendants, however, appear to believe that the CDA levels the jurisdiction and the laws that apply to the respective jurisdiction and that further training was not necessary.
Of the three signatories to the CDA, only the Choctaw Nation may arrest its citizens without probable cause, may criminalize free speech, may detain citizens without benefit of bond, may deny its citizens notice of criminalized behavior, as well as a multitude of other actions that would be illegal if done by the BIA or the City of Clayton police because the U.S. Constitution applies to the BIA and the City of Clayton. The need for a CDA demonstrates the necessity for training. The failure to train Clayton police as to the law affecting the Choctaw Nation was the direct cause of harm to Plaintiffs McConnell and Burlison. Defendant Bell and the City should have known additional training was necessary.

Proposition III

For an official to be protected from personal liability, his "allegedly unlawful official action was objectively reasonable when assessed in light of legal rules that were clearly established when the action was taken." Chapman v. Nichols, 989 F.2d 393, 397 (10th Cir. 1993). When a defendant raises the issue of qualified immunity on a summary judgment motion, the plaintiff must demonstrate the alleged conduct constituted a violation of law and the law was clearly established at the time of the violation. Hinton v. City of Elwood, Kan., 997 F.2d 774, 779 (10th Cir. 1993), Howard v. Dickerson, 34 F.3d 978, 982 (10th Cir. 1994). As stated above, the Plaintiffs had the right of free speech and to be free from arrests for their speech. The City of Clayton police knew of this right under the U.S. Constitution. It was unreasonable for the Clayton police to detain the Plaintiffs for passing out literature and videotaping an arrest, and Defendants are not immune from liability in their individual capacity. It is not reasonable to sign a CDA with another sovereign, whose laws are substantially different and unique, without adequate and additional training.

____________________________
DOUGLAS G. DRY OBA# 012653
103 1/2 WEST MAIN
POST OFFICE BOX 637
WILBURTON, OKLAHOMA 74578
(918)465-5033

I hereby certify that on the ____ day of June, 1999, a true and correct copy of the PLAINTIFFS' BRIEF IN RESPONSE TO DEFENDANTS CITY OF CLAYTON, TERRY BELL, ROWLAND HALL, MIKE VAN HORN, DARRELL KIRKES, REBECCA JOHNSON AND JIMMY LONG'S MOTION FOR SUMMARY JUDGMENT was mailed via U.S. Postal, with proper postage fully prepaid to the following:

STEIDLEY & NEAL
Eric D. Janzen
Charles D. Neal, Jr.
P.O. Box 1165
McAlester, Oklahoma 74502

Peter Bernhardt, Esq.
Special Assistant U.S. Attorney
U.S. District Court
Northern District of Oklahoma
333 West 4th Street, Suite 3460
Tulsa, Oklahoma 74103-3809