McKee v. City of Rockwall, Tex., 87-1879

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation877 F.2d 409
Docket NumberNo. 87-1879,87-1879
PartiesGayla McKEE, Plaintiff-Appellee, v. CITY OF ROCKWALL, TEXAS, et al., Defendants-Appellants.
Decision Date19 July 1989

James Ludlum, Jr., Ludlum & Ludlum, Austin, Tex., for defendants-appellants.

Steven B. Thorpe, Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.



Gayla McKee sued the City of Rockwall and certain individual police officers from the Rockwall Police Department. She alleged that she had been injured as a result of the officers' refusal to make an arrest, and that this non-arrest was the result of a Rockwall policy that discriminated on the basis of gender. She sought damages pursuant to 42 U.S.C. Sec. 1983, contending that her rights under the Equal Protection Clause had been violated.

The individual officers and the City sought summary judgment. The district court denied their motion. The officers and the City have asked for interlocutory review of that denial. Because we find that McKee has presented no evidence at all that the City pursues a discriminatory policy, we reverse the district court's judgment with respect to the individual officers. We have, however, no jurisdiction to hear an interlocutory appeal by the City, and so remand for further proceedings on the claim against the City.

A. The Cause of Action

In April of 1986, Gayla McKee summoned police officers to the apartment she shared with Harry Streetman, claiming that Streetman had assaulted her. The police officers made no arrests, but did drive McKee to another location out of Streetman's view. After the officers had left, Streetman found McKee and slashed her in the leg with a knife. McKee contends that the officers acted pursuant to a discriminatory policy against making arrests in domestic assault cases. She further contends that the policy violates the Equal Protection Clause, and seeks damages from the officers and the City.

In reviewing the district court's disposition of a summary judgment motion, we consider the issues de novo. All reasonable doubts and inferences must be resolved in the light most favorable to the non-movant. Thornbrough v. Columbus and Greenville Railroad Co., 760 F.2d 633, 640 (5th Cir.1985). We therefore summarize the facts as set out by McKee in her complaint and in the affidavit accompanying her summary judgment brief.

McKee says that she was living with Harry Streetman, her boyfriend, during April of 1986. When she arrived home one evening, Streetman attacked and beat her. She found that Streetman had disabled her car to prevent her from escaping. She went to a convenience store, and phoned the police.

Officers John Parrish and Gary Fleetwood were dispatched in response to the call. They eventually found McKee at the apartment. McKee says that while Parrish and Fleetwood were at the scene, they met Officer Trey Chaney, who was off-duty.

McKee told the officers that Streetman had assaulted her; that Streetman threatened to cause her severe injuries, and to kill her; that she was in fear of serious injury; and that Streetman would not permit her to retrieve her belongings, which were in the apartment.

McKee requested that the police arrest Streetman, or take her to her parents' home. She says that the officers refused to take either course. According to McKee, the officers said that she exaggerated the threats posed to her. They suggested she talk matters out with him.

McKee requested that the officers take her to the police station so that she could file a complaint against Streetman. She says that either Parrish or Fleetwood told her that they could not take her to the station because she was inappropriately dressed. She adds that the officers said that although they would not take her to the station, she was free to go there on her own and to file a complaint. She further alleges that the officers told her that after she had calmed down she probably would not want to file a complaint.

According to McKee, Streetman at this point threatened to burn her belongings if she went to the station. McKee says that the police did not respond in any way when Streetman made the threat.

She says that, after refusing to arrest Streetman or to take her to the police station or her parents' home, the police drove her to the apartment of Bruce Streetman, which was about fifty yards distant from the apartment Harry Streetman and McKee had been sharing. McKee phoned her parents, but Harry Streetman arrived at Bruce's apartment a few minutes after McKee, and interrupted her phone call. McKee went to her car to wait for her parents. Harry Streetman followed her, and cut her right leg with a knife.

The officers' account is in some respects inconsistent with McKee's. The officers say, for example, that they offered to take McKee to the police station, but that she refused to go, and, indeed, refused to give them the cooperation necessary to obtain a warrant for Streetman's arrest. Officer Parrish says that Streetman never threatened McKee in his presence. As we have already noted, however, we must on this review resolve factual conflicts in favor of the non-movant, and so we accept, for purpose of this opinion, McKee's version of these contested facts.

The officers' affidavits do, however, allege other facts which are uncontested by any of McKee's evidence, and which may be true even if we accept as true everything stated in McKee's own affidavit. The officers report that they were not able to detect any evidence that McKee had been assaulted. The officers could not detect "any welt, bruise, abrasion, cut, skin discoloration, unneat appearance, or any other indication that she had been beaten or assaulted." Moreover, although the officers had been told when summoned that McKee was trapped inside an apartment, she arrived on the scene from a convenience store where she had called the police. The officers report that McKee looked angry rather than hurt, and that Streetman was calm. The officers say that they stood by while McKee removed her purse and some belongings from Streetman's apartment. They attest that Fleetwood remained with Streetman while Parrish drove McKee to an address where McKee said she wanted to be taken; that the address was out of the sight of Streetman and Fleetwood; and that the address to which McKee was being taken was never mentioned within the hearing of Streetman.

McKee contends that the police officers would have arrested Harry Streetman but for a city policy which discouraged officers from making arrests in domestic violence cases. In an effort to present evidence of such a policy, McKee relied on an affidavit from her mother, and on statistics compiled from Rockwall's answers to McKee's interrogatories. Because these materials are crucial to the disposition of this case, we quote them in full, as presented to the district court. Darlene McKee's affidavit consists essentially of the following paragraph:

Within one or two days of the assault upon my daughter, my husband Roy McKee and I had a conversation with Chief Beaty of the Rockwall Police Department. During that conversation we asked the Chief why Harry Streetman had not been arrested when our daughter first called the police and reported his assault upon her. The Chief responded that his officers did not like to make arrests in domestic assault cases since the women involved either wouldn't file charges or would drop them prior to trial.

The statistics were presented as follows:

Analysis of Arrests in Assault

Cases and For Domestic Violence

1982 and 1986

Source: Defendants' Answers to Interrogatories, No. 8

                                                          1982  1983  1984  1985  1986    Total
                Cleared assaults                            15    14    24     ?    46   99
                Resulting arrests                            6     5     5     6    14   36
                Percentage of assaults leading to arrest                                 36  %
                                                          1982  1983  1984  1985  1986    Total
                Domestic violence calls                     10     5    10     9    18   52
                Resulting arrests                            3     2     3     1     2   11
                Percentage of domestic violence calls                                    21  %
                  leading to arrests

These statistics contain a glaring mathematical error--the totals for the "cleared assault" table add six arrests from 1985 without making any corresponding addition to the number of calls, and so distort the overall percentage--but, for the most part, we postpone comment on these statistics until Section V below.

The officers and the department both deny that the department ever had, and that the officers ever acted pursuant to, a policy of refusing to intervene in domestic violence cases. Chief Beaty denied that there had been any persistent failure or refusal of officers to make arrests in domestic violence cases where there existed probable cause to make an arrest.

B. Procedural History

McKee sued the City of Rockwall and Officers Chaney and Fleetwood, alleging liability pursuant to 42 U.S.C. Sec. 1983. The original complaint also named Eddie Keesee as a defendant, and made no claim against Officer Parrish. The claim against Keesee was later dropped. 1 McKee sought to invoke the state's pendent jurisdiction over any state law tort claims, but has not alleged any particular such claim.

The City and the officers sought summary judgment, contending that the officers were insulated from liability by the doctrine of qualified immunity; that McKee's complaint failed to state a claim against the City; that McKee had failed to present evidence showing that any of the officers or the City had violated any state or federal law; that McKee had failed to present any evidence that the City maintained a sexually discriminatory policy or custom which...

To continue reading

Request your trial
84 cases
  • Elkins v. McKenzie, No. 2002-IA-00845-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • October 30, 2003
    ...728 F.2d 762, 768 n. 3 (5th Cir.1984), cert denied, 472 U.S. 1016, 105 S.Ct. 3476, 87 L.Ed.2d 612 (1985); McKee v. City of Rockwall, 877 F.2d 409, 415 (5th Cir. 1989), cert denied, 493 U.S. 1023, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990). The three attribution principles identified here—a polic......
  • Coffman v. Wilson Police Dept., Civ. A. No. 90-1479.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • June 4, 1990
    ...see also Balistreri, 897 F.2d at 371-72 (no special relationship in failure to enforce case after DeShaney); McKee v. City of Rockwall, 877 F.2d 409, 413 (5th Cir.1989) (same), cert. denied, ___ U.S. ___, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990); Dudosh v. City of Allentown, 722 F.Supp. 1233, ......
  • Was v. Young, 91-CV-73726-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • May 22, 1992
    ...however, is illustrated in two post-DeShaney decisions, Balistreri v. Pacifica Police Dept., 901 F.2d 696,4 and McKee v. City of Rockwall, 877 F.2d 409 (5th Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107 796 F. Supp. 1050 L.Ed.2d 746 (1990).5 In Balistreri the Ninth Circuit held......
  • Soto v. Carrasquillo, Civ. No. 93-1594 (HL).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • January 20, 1995 itself, however, is generally an insufficient basis for inferring the existence of a policy or custom. McKee v. City of Rockwall, Tex., 877 F.2d 409, 415-16 (5th Cir.1989). Furthermore, a plaintiff normally must proffer evidence outside her particular case in order to support the allegat......
  • Request a trial to view additional results
2 books & journal articles
  • A Thirteenth Amendment defense of the Violence Against Women Act.
    • United States
    • University of Pennsylvania Law Review Vol. 146 No. 4, April 1998
    • April 1, 1998 equal protection claim, even with the higher standard of discriminatory intent, may be more fruitful than a due process claim). (148) 877 F.2d 409, 413 (5th Cir. 1989) (refusing to "permit plaintiffs to circumvent the rule of DeShaney by converting every Due Process claim into an Equal P......
  • Antisubjugation and the Equal Protection of the Laws
    • United States
    • Georgetown Law Journal No. 110-1, October 2021
    • October 1, 2021
    ...83. Id. at 197–98, 201–02. 84. Id. at 197 n.3 (citing Yick Wo v. Hopkins, 118 U.S. 356 (1886)). 85. See, e.g., McKee v. City of Rockwall, 877 F.2d 409, 413 (5th Cir. 1989) (stating that a complaint arising from failure to arrest allegedly based on gender-discriminatory policy was not barred......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT