Over the years, the Supreme Court has managed to murkify a dozen fields of law. On April 28 it murkified again. The court looked at a county's liability for the wrongful actions of an employee and wound up by making bad matters worse.
The verb "to murkify" (I just invented it) is a back-formation from "murky," meaning obscure, foggy, misty and dim. In the case at hand, Bryan County vs. Jill Brown, the court's opinion by Justice Sandra Day O'Connor was all of the above.The facts: At some point in 1990, B.J. Moore, sheriff of Bryan County, Okla., hired his great-nephew Stacy Burns as a reserve deputy. On the night of May 11, 1991, the 21-year-old deputy participated in the high-speed pursuit of a pickup truck that had evaded a police checkpoint.
Jill Brown was a passenger in the truck. After a three-mile chase, the vehicles halted. The U.S. Court of Appeals for the 5th Circuit described the incident:
"After twice ordering Mrs. Brown from the vehicle, Burns employed an `arm bar' technique whereby he grabbed Mrs. Brown's arm at the wrist and elbow, extracted her from the vehicle and spun her to the ground. Mrs. Brown's impact with the ground caused severe injury to her knees, requiring corrective surgery. Medical testimony was elicited at trial which showed that Mrs. Brown would ultimately require total knee replacements."
Mrs. Brown subsequently sued both the county and deputy Burns under Section 1983 of the Civil Rights Act of 1871. She charged that Burns had violated her constitutional right to be free from unreasonable seizure and false arrest. A jury awarded her more than $800,000 in damages. The county appealed. A divided 5th Circuit affirmed, and the Supreme Court accepted the case.
The 1871 statute says that every "person" who under color of law deprives a citizen of his constitutional rights may be subject to suit. Was Bryan County a "person"? In 1961 the high court held that a local government (it happened to be the city of Chicago) was NOT a person.
Seventeen years later, the court changed its mind. This was when the murk got murkier. The court held in a suit against New York City that the city WAS a person, more or less, but not wholly a person. This was in 1978.
The case law grew like crabgrass. Was an alleged violation the result of a "pattern or practice" or an official "policy"? Had a city or county shown "deliberate indifference" to the rights of a citizen? Applied to the case at hand, should Moore have known when he hired Burns that his nephew was likely to cause him serious trouble?
Plainly, the sheriff of Bryan County had no "policy" of hurling women to their knees. There was no evidence that other deputies had engaged in excessive force as a pattern or practice within the department. These findings left the question of Uncle B.J.'s wisdom in hiring a member of the family.
At the time all this happened, young Burns had a record of nine moving traffic violations, driving while intoxicated, driving with a suspended license, arrest for assault and battery, conviction for possession of a false identifcation and an arrest for resisting arrest.
Given the "innuendoes of nepotism," said the 5th Circuit, a jury reasonably could have inferred that Moore closed his eyes to Burns' background and gave him a badge anyhow. "We also find the evidence sufficient for a jury to conclude that Sheriff Moore's decision to hire Burns amounted to deliberate indifference to the public's welfare."
Circuit Judge Reynaldo G. Garza added a footnote: "It is certainly true that the sheriff had conducted adequate background checks on other deputies and assured himself that they were certified before putting them on the street, but the fact that he diverged from that practice as to this one individual does not save the county from liability."
In her opinion reversing the 5th Circuit, Justice O'Connor held that "deliberate indifference" is a stringent standard of fault, requiring proof in this case that the sheriff disregarded the "plainly obvious consequences" of hiring his nephew. No such proof had been presented.
In dissent, Justice David Souter complained that the majority had made it "virtually impossible" to prove fault. Justice Stephen G. Breyer said the case law had reached a point of complexity "that is neither readily understandable nor easy to apply." In sum, the law has been murkified once more. And it doubtless will be murkified again.