No. CIV-97-113-B

DOUGLAS G. DRY, JUANITA
McCONNELL and ROSIE BURLISON,

Plaintiffs, vs.

UNITED STATES OF AMERICA, et al.,

Defendants.

COME NOW Defendants City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long, by and through their attorneys of record, Steidley & Neal, and reserve the right to use the attached Jury Instructions, plus any additional Instructions necessary to conform to the evidence, and to make any modifications necessary thereto.

Respectfully submitted,

STEIDLEY & NEAL
Attorneys for Defendants City of Clayton,
Terry Bell, Rowland Hall, Mike Van Horn,
Darrel Kirkes, Rebecca Johnson and Jimmy Long


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 fully 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

JURY'S DUTIES - CAUTIONARY INSTRUCTIONS
TO BE GIVEN AFTER JURY IS SWORN

Members of the Jury: I will now explain to you your duties as jurors. It is vital to the administration of justice that you fully understand and faithfully perform these duties.

It is my duty to determine all of the law applicable to this case and to inform you of that law by these instructions and by the instructions that I will give you after all evidence has been received. It is your duty to accept and follow all of these instructions as a whole, not accepting one or more of these instructions and disregarding the others.

It is your duty to determine the facts of this case from the evidence produced in open court. It is then your duty to apply the law, as determined by the court, to the facts as determined by you, and thus render a verdict. You should not allow sympathy or prejudice to influence your decision. Your decision should be based upon probabilities, and not possibilities. It may not be based upon speculation or guesswork.

The evidence which you are to consider consists of the testimony of the witnesses; the exhibits, if any, admitted into evidence; any facts admitted or agreed to by the attorneys; and any facts which I instruct you to accept as true. The term "witness" means anyone who testifies in person, or by deposition, including the parties.

The production of evidence in court is governed by rules of law. From time to time it may be the duty of the attorneys to object to the production of evidence and my duty to rule on these objections. If I say the objection is sustained, you must not consider the testimony or exhibit covered by the objection. If I say the objection is overruled, you may consider the testimony or exhibit covered by the objection. The attorney's objections, and my rulings upon these objections. together with the reasons for these objections and rulings are not evidence and should not be considered by you.

The statements, remarks and arguments of the attorneys are intended to help you in understanding the evidence and applying the law, but are not evidence. If any statement, remark or argument of an attorney has no basis in the evidence, then you should disregard it.

You are the sole judges of the believability of each witness and the value to be Riven the testimony of each. You should take into consideration the witness's means of knowledge, strength of memory and opportunities of observation. Also consider the reasonableness, consistency or inconsistency of the testimony. You should also consider the bias, prejudice or interest, if any, the witness may have in the outcome of the trial, the conduct of the witness upon the witness stand and all other facts and circumstances that affect the believability of the witness.

My rulings and remarks made during the course of this trial are not intended to indicate my opinion as to the facts. During all recesses and adjournments, while this case is in progress, you must not discuss this case, or anything about this case, with anyone, and you must not allow anyone to discuss it with you. This rule applies not only to court employees, the attorneys involved in this case, and others you may meet in the courthouse, but also to your husband and wife, other members of your family, your friends and anyone else you may meet. If during the trial anyone talks to you or tries to talk to you about this case, you must immediately report it to me, or the clerk of the court or the bailiff), who will report to me.

Do not, before this case is finally submitted to you for a decision, talk to your fellow jurors about this case, or anything about this case, or form or express any opinion about it.

[Do not read newspaper reports about this trial, and do not watch or listen to television or radio reports about it.]

The reasons for these rules are that it is essential that you should keep your minds free and open at all times throughout this trial and that you should not be influenced by anything except the evidence you hear and see in the courtroom.

From now on, at the beginning of each recess or adjournment, I will refer to these instructions as "my instructions" or "my usual instructions," but whether or not this is done, you will carefully observe these rules at all times.

OUJI 1.4

Given
Refused
Modified

JURY'S DUTIES - CAUTIONARY INSTRUCTIONS

CORPORATION AS PARTY

All parties to a lawsuit are entitled to the same fair and impartial consideration, whether they are
corporations or individuals.

OUJI 1.5A

Given
Refused
Modified

INSTRUCTION NO.

JURY'S DUTIES - INTRODUCTION TO INSTRUCTIONS
TO BE GIVEN AFTER THE EVIDENCE

It is now my duty to further explain your duties as jurors, and to further inform you of the law applicable to this case. It is your duty to faithfully perform your duties and to accept and follow all instructions of the law as a whole, including the instruction I gave you at the beginning of this trial [and the instructions I gave you during the course of this trial]. You are not free to accept and follow one or more of these instructions and disregard the other.

A written copy of all instructions will be given to you before you begin your deliberations.
Instruction No. 1.6



Given
Refused
Modified

JURY'S DUTIES - TO BE GIVEN PRIOR TO DELIBERATION

Ladies and Gentlemen of the jury, that completes the argument. This case is now submitted to you for your decision and verdict.

When you have arrived in the jury room you should first choose one of the jury as a foreperson and then begin deciding the case. You must not use any method of chance in arriving at your verdict, but rest it on the opinion of each juror who agrees with it. The forms of all possible verdicts will be sent to the jury room with you, along with these written instructions of the Court. If all twelve (12) of you agree on a verdict, select the one (1) correct form of verdict and only your foreperson alone need sign it; if you do not all agree, but at least nine (9) or more of you do, then only those nine (9) or more agreeing will each, individually, sign the verdict form. Notify the Bailiff when you have arrived at a verdict so that you may return it in open court.

Instruction No. 1.7



Given
Refused
Modified

MANDATORY INSTRUCTION UPON DISCHARGE

You have now completed your duties as jurors in this case and are discharged. The question may arise whether you are free to discuss this case with anyone. This is entirely your decision. If any person tries to discuss the case over your objection, or becomes critical of your service, please report it to me immediately. Instruction No. 1.8


Given
Refused
Modified

The parties to this case are Douglas G. Dry, Juanita McConnell and Rosie Burlison, the Plaintiffs, and the City of Talihina, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels and the City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long, the Defendants.

The Parties admit:

1) The Defendant City of Talihina is cross-deputized with the Choctaw Nation Tribe.

2) The Defendant City of Talihina's jail personnel were advised of the charges against Plaintiff Dry at the time Plaintiff was placed in the City of Talihina's jail.

3) Plaintiff Dry was only detained in the Defendant City of Talihina's jail for approximately two (2) hours before being released back to the Choctaw Nation tribal officers.

4) During the time Plaintiff Dry was in the Defendant City of Talihina's jail, Defendant Chief of Police Jack England repeatedly attempted to discover the status of the charges against Plaintiff Dry.

5) At the time of Plaintiff's September 4, 1995 arrest and subsequent detention at the Talihina Police Department's jail, Defendant Chief of Police Jack England was Council on Law Enforcement Education and Training certified, had maintained his State law enforcement certification, was cross-deputized with the Choctaw Nation and had eighteen years of law enforcement experience.

6) After the detention at the Talihina jail, the Choctaw Nation charged Plaintiff Dry with public disturbance, disturbance of a parade, disturbance of the peace, use of language calculated to arouse anger, assault on a police officer, attempt to intimidate
an officer and resisting arrest.

7) The Defendant City of Clayton is cross-deputized with the Choctaw Nation Tribe.

8) The Defendant City of Clayton's jail personnel were advised of the charges against Plaintiffs McConnell and Burlison at the time Plaintiffs were placed in the City of Clayton's jail.

9) Plaintiffs McConnell and Burlison were only detained in the Defendant City of Clayton's jail for approximately two (2) hours before being released back to the Choctaw Nation tribal officers.

10) At the time of Plaintiffs' September 4, 1995 arrests and subsequent detention at the Clayton Police Department's jail, Defendant Chief of Police Terry Bell was Council on Law Enforcement Education and Training certified, had maintained his State law enforcement certification, had completed Department of Corrections training in 1987 and was cross-deputized with the Choctaw Nation in 1995.

11) After the detention at the Clayton jail, the Choctaw Nation charged Plaintiff McConnell with resisting arrest, public disturbance, disturbance of a parade, disturbance of the peace and use of language calculated to arouse anger.

12) After the detention at the Clayton jail, the Choctaw Nation charged Plaintiff Burlison with interfering with police officer from official duties [sic], public disturbance, disturbance of a parade, disturbance of the peace and use of language calculated to arouse anger.

The Plaintiff Dry's claims against the Talihina Defendants are as follows:

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. Plaintiff also alleges a tortious false imprisonment and unlawful detention against the Defendants.

The Plaintiffs McConnell's and Burlison's claims against the Clayton Defendants are as follows:

The Defendants violated Plaintiffs' Fifth and Fourteenth Amendment Constitutional rights by briefly detaining Plaintiffs on September 4, 1995. Plaintiffs have brought this claim under 42 U.S.C. § 1983. Plaintiffs allege a tortious false imprisonment and unlawful detention against the Defendants.

The Plaintiffs claim they were injured by the Defendants' actions. The Defendants deny they are liable to the Plaintiffs in doing any of the things claimed by Plaintiffs, and that the Plaintiffs were even injured.

Given
Refused
Modified

BURDEN OF PROOF -
GREATER WEIGHT OF THE EVIDENCE

In a civil lawsuit, such as this one, the law provides which party is to prove certain things to you. This is called "Burden of Proof."

When I say that a party has the burden of proof on any proposition by the greater weight of the evidence, or use the expression "if you find," or "if you decide," I mean you must be persuaded, considering all the evidence in the case, that the proposition on which such party has the burden of proof is more probably true than not true. The greater weight of the evidence does not mean the greater number of witnesses testifying to a fact, but means what seems to you more convincing and more probably true.

A party who seeks to recover on a claim [or counterclaim], or a party who raises an affirmative defense has the burden to prove all the elements of the claim or defense. In deciding whether a party has met the burden of proof, you are to take into account all the evidence, whether offered by that party or any other party.

OUR 3.1


Given
Refused
Modified

DETERMINING CREDIBILITY [BELIEVABILITY] OF WITNESS

You are the sole judges of the believability of each witness and the value to be given the testimony of each. You should take into consideration the witness's means of knowledge, strength of memory and opportunities for observation. Also consider the reasonableness and consistency or inconsistency of the testimony.

You should also consider the bias, prejudice, or interest, if any, the witness may have in the outcome of the trial, the conduct of the witness upon the witness stand, and all other facts and circumstances that affect the believability of the witness.

OUJI 3.13


Given
Refused
Modified

DUTY TO MITIGATE DAMAGES - PERSONAL INJURY

In fixing the amount of money that will reasonably and fairly compensate Plaintiffs, you are to consider that an injured person must exercise ordinary care to obtain proper treatment, Damages cannot be recovered for an injury resulting from a failure to exercise such care.

OUJI 5.3


Given
Refused
Modified

AGENCY - DEFINED

The relationship of agency is created from the conduct and/or agreement of the parties showing that one is willing for the other to act for him/her subject to his/her control and that the other consents to so act. An agency relationship may arise under such circumstances even when the parties may not have intended to create one. The person who acts for another is called the agent and the other is called the principal.

OUJI 6.2

Given
Refused
Modified

EMPLOYER AND EMPLOYEE - DEFINED

An employee is a person who, by agreement with another called the employer, acts for the employer and is subject to its control. The agreement may be oral or written or implied from the conduct of the parties. OUR 6.4



Given
Refused
Modified

SCOPE OF EMPLOYMENT

An employee is acting within the scope of his/her employment if he/she is engaged in the work which has been assigned to him/her by his/her employer, or is doing that which is proper, usual and necessary to accomplish the work assigned to him/her by his/her employer, or is doing that which is customary within the particular trade or business in which the employee is engaged.

OUJI 6.7


Given
Refused
Modified

SCOPE OF AUTHORITY - DEFINED

An agent is acting within the scope of his/her authority if he/she is engaged in the transaction of business that has been assigned to him/her by his/her principal, or if he/she is doing anything that may reasonably be said to have been contemplated as a part of his/her agency. It is not necessary that an act or failure to act must have been expressly authorized by the principal.

OUJI 6.8



Given
Refused
Modified

INTENTIONAL AND WILLFUL DISREGARD - DEFINED

Defendants intentionally caused emotional distress to Plaintiffs if he/she/it desired to cause such distress or knew that such distress was substantially certain to result from his/her/Its conduct.

Defendants recklessly caused emotional distress to Plaintiffs if he/she/it knew there was a substantial probability that emotional distress to Plaintiffs would result from his/her/its conduct, and he/she/it deliberately disregarded that probability. OUJI 20.2

Given
Refused
Modified

EMOTIONAL DISTRESS OR PAIN OR ANGUISH - DEFINED

The term "emotional distress" means mental distress, mental pain and suffering, or mental anguish. It includes all highly unpleasant mental reactions, such as fright, horror, grief, humiliation, embarrassment, anger, chagrin, disappointment, and worry. OUJI 20.3

Given
Refused
Modified

ACTUAL DAMAGES - EMOTIONAL DISTRESS

If you decide for Plaintiffs, then you must assess his/her damages, which may be actual or nominal.

To assess actual damages you must find that Plaintiffs sustained actual in injuries as a direct result of the claimed emotional distress.

Plaintiffs are entitled to an amount of dollars to compensate for all injuries directly caused by the emotional distress, whether they could have been anticipated or not, including:

1. Emotional distress;
2. Any physical discomfort or inconveniences;
3. Any physical illness or injury;
4. Any reasonable medical expenses;
5. Any loss of reputation; and
6. Any loss of earnings; and

If you find in favor of Plaintiffs, but do not find any actual damages, you shall nonetheless award him/her nominal damages in the sum of one dollar.

OUJI 20.4

Given
Refused
Modified

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

You are instructed as a matter of law that under the Constitution of the United States every citizen has the right to his liberty, that is, the right not to be arrested without due process of law. Every person also has the right under the Constitution to be secure in his home or dwelling against unreasonable searches; and, finally, every person has the Constitutional right not to be subjected to unreasonable force while being arrested by a law enforcement officer, even though such arrest is otherwise made in accordance with due process of law.

You are further instructed that the federal civil rights statute under which the Plaintiffs sue provides that a person may seek relief in this court by way of damages against any person or persons who, under color of any state law or custom, subjects such person to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.

Federal Jury Practice and Instructions § 103.02

Given
Refused
Modified

As you will note, the federal statue, which the Defendants are alleged to have violated, covers not only acts done by an official under color of any state law, but also acts done by an official under color of any ordinance or regulation of any County or Municipality of the state, as wells as acts done by an official under color of any regulation issued by any state, or county, or municipal official, and even acts done by an official under color of some State or local custom.

So, the phrase "under color of state law," includes acts done under color of any state law, or county or municipal ordinance, or any regulation issued thereunder, or any state or local custom.

Federal Jury Practice and Instructions § 103.04

Given
Refused
Modified

MUNICIPAL LIABILITY

Plaintiffs claim the City of Clayton, municipality, is liable to them for the constitutional deprivations they allege. You are instructed that the City of Clayton may be liable where you find that Plaintiffs have been deprived of their constitutional rights and such deprivation was done pursuant to a governmental custom, policy, ordinance, regulation or decision. When the Plaintiffs are injured as a result of a government's policy, custom, regulation or decision, whether made by its lawmakers or by those officials whose edicts or acts may fairly be said to represent official policy, the City itself is responsible for the injury that it caused.

In this case, Plaintiffs seek to hold the City responsible for the act or decision of a single city official. You may find the City liable for the act or decision of its official if you believe that he/she had the authority to establish policy for the City with regard to the decision he/she made or the action he/she took that caused the injury to the Plaintiffs. In other words, the City can be held liable if the official's act or decision can fairly be said to represent official policy of the City.

However, before a local governing body may be held liable under the law, you must find from the evidence:

That the governing body implemented or executed such policy ... or custom with the intention to deprive another of their constitutional rights, or they knew, or should have known that such action would violate or deprive another of their constitutional rights. Rock v. McCoy, 76 F.2d 394 (10th Cir. 1985)

Federal Jury Practice and Instructions § 103.11

Given
Refused
Modified

First: That the City's training program was inadequate to train its officers and employees to carry out their duties;

Second: The need for more training or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy makers of the City can reasonably be said to have been deliberately indifferent to the need for such training; and

Third: The failure to provide proper training was a cause of injury to the Plaintiffs.

Federal Jury Practice and Instructions § 103.11

Given
Refused
Modified