No. CIV-97-113-B

DOUGLAS G. DRY, JUANITA
McCONNELL and ROSIE BURLISON,

Plaintiffs,

vs.

UNITED STATES OF AMERICA, et al.,

Defendants.

COME NOW the Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels ("Defendants" unless otherwise specified within the Brief), by and through their attorneys of record, Steidley & Neal, and offer the following Trial Brief:

Plaintiff Douglas G. Dry has brought suit against the City of Talihina, Oklahoma, its police chief, Jack England, and its council members, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels. The allegations in the Amended Complaint are based upon an arrest made of Plaintiff at a Labor Day festival for the Choctaw Nation on September 4, 1995.

Allegedly, Plaintiff was distributing literature expressing opinions of public concern at the Labor Day festival in Tuskahoma, Oklahoma. (Amended Complaint at ¶ 45, 46) Choctaw Nation tribal officers arrested Plaintiff and transported him to the Talihina, Oklahoma Police Department. (Amended Complaint at ¶ 48)

Plaintiff was detained in the Talihina Police Department's jail for approximately two hours. (Amended Complaint at ¶ 51) The Choctaw Nation tribal officers then returned and took Plaintiff back to the Tribe's complex for disposition. (Amended Complaint at ¶ 52) Plaintiff was not returned to the Talihina jail. Defendants Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels were never aware of Plaintiff's brief detention in the Talihina jail.

The Choctaw Nation charged Plaintiff with public disturbance, disturbance of a parade, disturbance of the peace and use of language calculated to arouse anger, assault on a police officer, attempt to intimidate an officer and resisting arrest. (Amended Complaint at ¶ 54) Plaintiff has brought suit against the City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels based upon these facts.

Plaintiff filed his Amended Complaint on April 23, 1997. The Amended Complaint lists thirty-three Defendants, among whom are the City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels. Successive Orders of the Court have essentially pared the Defendants down to the municipalities and their council members.

The claims against the Talihina Defendants are found in Counts V and VI of the Amended Complaint. Count V alleges the Defendants violated Plaintiff's Fifth and Fourteenth Amendment Constitutional rights by briefly detaining Plaintiff on September 4, 1995. Plaintiff has brought this claim under 42 U. S.C. § 1983. Plaintiffs Count VI alleges a tortious false imprisonment and unlawful detention against the Defendants. Count VI is brought under the Oklahoma Governmental Tort Claims Act.

The Defendants filed an Answer to the Amended Complaint denying all liability for the Plaintiff's brief detention in the Talihina Police Department's jail on September 4, 1995. Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels also brought a FED. R. Civ. P. 56(b) Motion for Summary Judgment requesting the Court to dismiss Plaintiffs claims. The Plaintiff objected and Defendants filed a Reply Brief The matter is now at issue.

No Jailers Liability Exists

The essence of Plaintiffs Amended Complaint against these Defendants is Plaintiffs disagreement with his arrest by the Choctaw Nation. Plaintiff's Amended Complaint, with over 174 paragraphs of allegations, in no uncertain detail depicts the extent of Plaintiffs disagreement with the actions of the Choctaw Nation and those associated with it. However, Plaintiff's disagreement with the basis of his arrest is beyond the scope of the issues against the Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels.

The issue in the case at bar is tightly focused: was Plaintiffs two-hour detention in the City of Talihina's jail a violation of Plaintiffs rights? Clearly, Plaintiff's rights were not violated by his brief detention.

Wood Decision Supports Dismissal

Jailers' liability for allegedly defective underlying arrests is not the subject of widespread appellate decisions. However, the Wood v. Worachek, 618 F.2d 1225 (7th Cir. 1980) decision is on point with the allegations brought against the instant Defendants.

In Wood, a group of demonstrators was gathered to protest the enactment of a municipal ordinance. In fact, like Plaintiff Dry, James Wood in the Wood case was an attorney. The demonstration was declared an unlawful assembly and violence between the protesters and police erupted. Numerous arrests were made.

The arrestees were transported to the municipal jail to await processing. One at a time, the prisoners were removed from a common holding cell and the necessary identification information for each prisoner's booking slip was obtained, Thereafter, each prisoner was searched and placed in a separate cell from the other prisoners. At the time of the prisoners' booking, it was not known to the jailers what charges were to be filed against the prisoners. It is also interesting to note that both Plaintiff attorney Dry and the plaintiff attorney in Wood were detained for approximately two hours. The plaintiff in Wood brought an action to recover for an alleged assault, false arrest, false imprisonment and denial of proper medical treatment.

In examining the facts before it, the Wood court stated the general rule:

Generally, a jailer is liable for the illegal detention of an inmate when he unreasonably detains the inmate for arraignment or release, or possesses an affirmative knowledge of the illegality of the arrest. But if the errors upon which liability is asserted take place beyond the scope of his responsibility, he cannot be found liable where he has acted reasonably and in good faith.

Id. at 1231. Plaintiff Wood's claim that his constitutional rights had been violated by an arrest without probable cause occurred prior to his custodial transmittal to the city jail. Thus, the Wood court held it "was not the obligation of the jailers to determine whether or not probable cause existed for his arrest." Id. In sum, the Wood court held that the "jailers did not perform any discretionary function, but merely acted in a strictly ministerial capacity with respect to the plaintiff." Id.

The facts in the instant case closely follow those in the Wood case. Here, Plaintiff claims he was arrested by the Choctaw Nation tribal officers without probable cause. Further, this alleged arrest without probable cause occurred in Tuskahoma before Plaintiff was transported to the Talihina jail. (Amended Complaint at ¶¶ 47, 48 and 49).

Prisoners of the Choctaw Nation could be permissibly jailed in the Talihina jail under the Cross-Deputization Agreement. Unlike the plaintiff in Wood, Talihina Police Chief Jack England was advised of the charges pending against the Plaintiff. In approximately two hours, the Choctaw Nation officers returned, collected Plaintiff and transported him away from Talihina.

Any errors in the arrest of Plaintiff very plainly occurred well before or well after his brief detention in the Talihina jail. Wood at 1231; Bryan v. Jones, 530 F.2d 1210, 1215 (5th Cir. 1976) (Errors taking place outside the realm of jailer's responsibility cannot be imputed to jailer acting reasonably and in good faith). It is equally clear that the jail personnel for the City of Talihina were performing strictly ministerial functions and did not act in any discretionary capacity with respect to Plaintiff. In fact, there is no evidence nor even any allegations that the City of Talihina had any affirmative knowledge of any illegalities in the arrest of Plaintiff from any source other than Plaintiff Dry. Certainly, the self-exonerating protestations of a prisoner do not rise to the level of evidence upon which a jailer should unilaterally release a prisoner. Thompson v. Olson, 798 F.2d 552, 556 (1st Cir. 1986)

However, Plaintiff's claims are most greatly damaged by his own concession that Police Chief Jack England made multiple attempts to verify Plaintiffs version of the basis for his arrest. Even under Plaintiff's own testimony, Chief England was in the process of investigating the charges pending against Plaintiff Dry when the Choctaw Nation officers returned to Talihina to escort Plaintiff back to Tuskahoma for further disposition. Significantly, the criminal charges filed by the Choctaw Nation included the original charge supplied to Defendant Jack England when Plaintiff was temporarily detained in the Talihina jail. (Amended Complaint at $ 54)

Here, the Court should find that the brief confinement and processing of Plaintiff Dry in the Talihina jail was proper. Therefore, the Court should grant Judgment against Plaintiff's claims.

The Defendant City of Talihina was acting under a valid, adopted and approved Cross Deputization Agreement with the Choctaw Nation at the time of the events alleged in the Amended Complaint. A review of the Agreement finds the manifest intent of the Agreement was to promote cooperation between Choctaw Nation tribal officers and City of Talihina law enforcement. Further, the Agreement specifically contemplates the detention of Choctaw Nation suspects in the Talihina jail.

Here, the City of Talihina also had Defendant Chief of Police Jack England cross-deputized as a commissioned BIA Deputy pecial Officer. At the time of Plaintiff's September 4, 1995 arrest and subsequent detention at the Talihina Police Department's jail, Chief England was also Council on Law Enforcement Education and Training ("CLEET") certified, current on his certification requirements and had accumulated eighteen years of law enforcement experience.

Plantiff's civil rights claim is essentially premised upon the individually-named Defendants' alleged failure to train and supervise Defendant Jack England. However, Chief England undisputedly was CLEET certified at the time of the Plaintiffs detention.

In Oklahoma, training of police officers has rested almost exclusively on CLEET since 1965. CLEET was set up by the Oklahoma legislature to promulgate rules and regulations for certification, testing and basic standards for Oklahoma police officers. OKLA. STAT. ANN. tit. 70, § 3311 (West 1998). CLEET was organized for the primary purpose of meeting the educational and training needs of "upgrading Oklahoma law enforcement to professional status." Id. at § 331IB(l). CLEET defines the basic requirements for police officers in the State of Oklahoma. Id. at § 33 11 D.

CLEET mandates annual continuing law enforcement training and has the authority to suspend an officer's certification. Id at § 3311.4. Finally, CLEET issues a certificate that the officer is capable of performing all functions or duties of a police officer within the State of Oklahoma. 17 Okla. Op. Att'y Gen. 68 (1985). PLAINTIFF'S suggestion that Chief England was not properly trained ignores the statutorily defined purpose of CLEET police training in Oklahoma. Furthermore, here, Chief England had undergone Cross-Deputization certification in addition to his CLEET requirements.

It is simply ludicrous to suggest that Defendant council members Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels should be held accountable for establishing a higher standard of training than is statutorily required in Oklahoma. Further, it is ludicrous to suggest that laypersons serving as council members should be held liable to discern the vagaries of constitutional law as it applies to the operation of a municipal jail.

Individually-Named Defendants Should be Dismissed from Constitutional Claims

Individually-named council members and employee of a municipality enjoy a qualified immunity from suit. The qualified immunity enjoyed by these persons protects them against a suit for damages "insofar as their conduct does not violate clearly established statutory or constitutional fights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Council members Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels and police chief Jack England stand as Defendants in their individual capacities in the case at bar. As such, they possess an entitlement not to stand trial or face the other burdens of litigation until the resolution of the legal question of whether they are immune from suit on the basis of their qualified immunity as elected officials and employee of the City of Talihina. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Whitt v. Smith, 832 F.2d 451, 453 (7th Cir. 1987) citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982) (defense of qualified immunity is question of law for judge to decide); Pueblo Neighborhood Health Centers v. Losavio, 847 F.2d 642, 644-45 (10th Cir. 1988) (entitlement is an immunity from suit rather than a mere defense to liability).

In assessing a defense of qualified immunity, the Court must determine the "objective reasonableness of the challenged conduct by reference to the law clearly established at the time of the constitutional violation." Frohmader v. Wayne, 958 F.2d 1024, 1027 (10th Cir. 1992). "The test of what is 'clearly established law' should be determined in a particularized sense, that is, that the 'contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right'." Garett v. Rader, 831 F.2d 202, 204 (10th Cir. 1987) citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed.2d 523 (1987). Further, once a defendant has raised the qualified immunity defense, the burden is placed upon the plaintiff to establish that the defendant has violated a clearly established right. Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990).

Here, the most significant action Plaintiff can identify was a brief custodial detention by the City of Talihina on behalf of the Choctaw Nation. Upon being advised of Plaintiffs concerns about the legality of his arrest, Chief England set out to investigate the basis for the arrest of Plaintiff. This is exactly what one would expect of a reasonable and diligent person in Chief England's position.

Plaintiff's fundamental disagreement with the actions of the Choctaw Nation prior to and after his brief detention in the Talihina jail does not create a cause of action. Certainly, it was objectively reasonable for the council members' to employ an experienced, CLEET certified, cross deputized officer to operate Talihina's Police Department. Likewise, it cannot be said that Chief England was inadequately trained or supervised where his law enforcement credentials exceeded the minimum requirements for a law enforcement officer. The facts of the instant case entitle the individually-named Defendants to qualified immunity from Plaintiffs constitutional rights claims. The Court should dismiss these Defendants from this lawsuit in their individual capacities prior to the commencement of trial in this case.

Individually Named Defendants Should be Dismissed from Tort Claims

Count VI of Plaintiffs Amended Complaint alleges that Defendants City of Talihina, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels should be held liable for failing to instruct, supervise, control and discipline Defendant Jack England on Chief England's law enforcement duties. (Amended Complaint at ¶ 169) The Oklahoma Governmental Tort Claims Act governs tort claims against political subdivisions such as the Defendant City of Talihina. Parker v. City of Midwest City, 8 10 P.2d 1065 (Okla. 1993). The Tort Claims Act immunizes Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat, Naomi O'Daniels and Jack England from liability for common law torts for those actions taken within the course and scope of their employment and actions on behalf of the municipality. OKLA. STAT. ANN. tit. 51, § 153 (West 1984).

Plaintiff's Amended Complaint also demands recovery against the Defendants under a theory of joint and several liability. However, the Tort Claims Act does not permit a municipality to be held jointly and severally liable with any other Defendant. OKLA. STAT. ANN. tit. 51, § 154F (West 1994). Thus, damages may not be awarded against these Defendants under a claim of joint and several liability.

Finally, Plaintiffs Amended Complaint demands recovery under the Tort Claims Act in excess of $100,000.00. (See Amended Complaint at Count VI) The Tort Claims Act rigidly defines the limitations of possible recovery. Under the Act, the total, possible recovery is limited to $100,000.00. OKLA. STAT. ANN. tit. 51, § 154A(2) (West 1994). Therefore, the Court should limit any, possible recovery for claims under the Act to $ 100, 000. 00.

Plaintiff has apparently abandoned this claim. Thus, the Court should dismiss Plaintiffs prayer for punitive damages.

WHEREFORE, premises considered, Defendants City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels move this Court for Judgment as a matter of law, and for such other and further relief to which they may be justly entitled.

Respectfully submitted,

STEIDLEY & NEAL
Attorneys for Defendants City of Talihina,
Jack England, Malcomb Wade, Niky Hibdon,
Lloyd James, John Wheat and Naomi O'Daniels

CERTIFICATE OF MAILING

I hereby certify that on the 7th day of July 1999, a true and correct copy of the foregoing was mailed via certified mail with proper postage My prepaid to the following:

Mr. Douglas G. Dry
Attorney at Law
P.O. Box 637
Wilburton, OK 74578

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


Mr. Steve Shreder
Attorney at Law
P.O. Box 810
Talihina, OK 74571