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 ("Defendants" unless otherwise specified within the Brief), by and through their attorneys of record, Steidley & Neal, and offer the following Trial Brief.

Plaintiffs Juanita McConnell and Rosie Burlison have brought suit against the City of Clayton, Oklahoma, its police chief, Terry Bell, and its council members, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long. The allegations in the Amended Complaint are based upon arrests made of Plaintiffs McConnell and Burlison at a Labor Day festival for the Choctaw Nation on September 4, 1995.

Allegedly, Plaintiffs McConnell and Burlison were distributing literature expressing opinions of public concern at the Labor Day festival in Tuskahoma, Oklahoma. (Amended Complaint at ¶¶ 94, 124) Choctaw Nation tribal officers arrested Plaintiffs and transported them to the Clayton, Oklahoma Police Department. (Amended Complaint at ¶¶ 95, 96, 97, 125 and 126).

Plaintiffs were detained in the Clayton Police Department's jail for approximately two hours. (Amended Complaint at ¶¶ 99, 128) The Choctaw Nation tribal officers then returned and took Plaintiffs back to the Tribe's complex for disposition. (Amended Complaint at ¶ 158) Plaintiffs were not returned to the Clayton jail. Defendants Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long were never aware of Plaintiffs' brief detention in 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. (Amended Complaint at ¶ 10 1) 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. (Amended Complaint at ¶ 13 1) Plaintiffs have brought suit against the City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long based upon these facts.

Plaintiffs filed their Amended Complaint on April 23, 1997. The Amended Complaint lists thirty-three Defendants, among whom are the City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long. Successive Orders of the Court have essentially pared the Defendants down to the municipalities and their council members.

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

The Defendants filed an Answer to the Amended Complaint denying all liability for the Plaintiffs' brief detention in the Clayton Police Department's jail on September 4, 1995. Defendants City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long also brought a FED. R. Civ. P. 56(b) Motion for Summary Judgment requesting the Court to dismiss Plaintiffs' claims. The Plaintiffs objected and Defendants filed a Reply Brief The matter is now at issue.

No Jailers' Liability Exists

The essence of Plaintiffs' claims against these Defendants is Plaintiffs' disagreement with their arrest by the Choctaw Nation. Plaintiffs' Amended Complaint, with over 174 paragraphs of allegations, accurately depicts the depth and breadth of Plaintiffs' disagreement with the actions of the Choctaw Nation and those associated with it. However, Plaintiffs' disagreement with the basis of their arrest is beyond the scope of the issues against the Defendants City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long.

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

Wood Decision Supports Dismissal

Jailers' liability 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 were gathered to protest the enactment of a municipal ordinance. In fact, not unlike the first, named Plaintiff in the case at bar, James Wood in the Wood case was also 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. Also, it is interesting to note the prisoner in Wood was detained for approximately two hours.

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 123 1. 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, Plaintiffs' claims that they were unreasonably arrested arose in Tuskahoma and before they were transported to the Clayton jail. (Amended Complaint at IN 94, 95, 96, 97, 124, 125 and 126) Prisoners of the Choctaw Nation could be permissibly jailed in the Clayton jail under the Cross-Deputization Agreement. Unlike the plaintiff in Wood, Clayton Police Chief Terry Bell was advised of the charges pending against both Plaintiffs. In approximately two hours, the Choctaw Nation officers returned and collected Plaintiffs McConnell and Burlison and transported them away from Clayton.

Any errors in the arrests of Plaintiffs very plainly occurred well before or well after their brief detention in the Clayton jail. 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 the jail personnel for the City of Clayton were performing strictly ministerial functions, and did not act in any discretionary capacity with respect to Plaintiffs. Further, there is no evidence nor even any allegations that the City of Clayton had any affirmative knowledge of any illegalities in the arrests of Plaintiffs from any source other than the prisoners.

Here, the Court should find that the brief confinement and processing of Plaintiffs McConnell and Burlison in the Clayton jail were proper. Therefore, the Court should dismiss Plaintiffs' claims against the Defendants City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long.

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

Here, the City of Clayton also had Defendant Chief of Police Terry Bell cross-deputized as a commissioned BIA Deputy Special Officer. At the time of Plaintiffs' September 4, 1995 arrests and subsequent detention at the Clayton Police Department's jail, Chief Bell was Council on Law Enforcement Education and Training ("CLEET") certified and was current on his certification requirements. Further, Chief Bell had completed Department of Corrections training in 1987.

Plaintiffs' civil rights claim is essentially premised upon the individually-named Defendants' alleged failure to train and supervise Defendant Terry Bell. However, Chief Bell 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 § 3311B(1). CLEET defines the basic requirements for police officers in the State of Oklahoma. Id. at § 3311 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). Plaintiffs' suggestion that Chief Bell was not properly trained ignores the fundamental aspect of police training in Oklahoma. Furthermore, here, Chief Bell had undergone Cross-Deputization and Department of Corrections training in addition to his CLEET requirements.

It is simply ludicrous to suggest that Defendant council members Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long 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 ARE ENTITLED
TO QUALIFIED IMMUNITY FROM SUIT AND SHOULD BE
DISMISSED IN THEIR INDIVIDUAL CAPACITIES.

Individually-Named Defendants Should be Dismissed from Constitutional Claims

Individually-named council members and employees 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 rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Council members Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long and Police Chief Terry Bell 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 Clayton. 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, 45 7 U.S. 800, 818-19 (1982) (defense of qualified immunity is question of law for judge to decide); Mitchell at 526 (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 fight must be sufficiently clear that a reasonable official would understand that what he is doing violates that fight'." 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 Clayton on behalf of the Choctaw Nation. Plaintiffs' fundamental disagreement with the actions of the Choctaw Nation prior to and after his brief detention in the Clayton jail does not create a cause of action. Certainly, it was objectively reasonable for the council members' to employ a CLEET certified, cross-deputized and Department of Corrections trained officer to operate Clayton's Police Department. Likewise, it cannot be said that Chief Bell 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 officials to qualified immunity from Plaintiffs' constitutional rights claim. 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 XVI of Plaintiffs' Amended Complaint alleges that Defendants City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long should be held liable for failing to instruct, supervise, control and discipline Defendant Terry Bell on Chief Bell'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 Clayton. Parker v. City of Midwest City, 810 P.2d 1065 (Okla. 1993). The Tort Claims Act immunizes Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long 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).

Plaintiffs' 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 XVI) 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.

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

WHEREFORE, premises considered, Defendants City of Clayton, Terry Bell, Rowland Hall, Mike Van Horn, Darrel Kirkes, Rebecca Johnson and Jimmy Long 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 Clayton,
Terry Bell, Rowland Hall, Mike Van Horn,
Darrel Kirkes, Rebecca Johnson and Jimmy Long

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: