Morro v. City of Birmingham

Decision Date21 July 1997
Docket NumberNo. 96-6445,96-6445
Citation117 F.3d 508
Parties, 11 Fla. L. Weekly Fed. C 190 Scott Thomas MORRO, Plaintiff-Appellee, v. CITY OF BIRMINGHAM, a Municipal Corporation, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Thomas Bentley, III, Demetrius C. Newton, John M. Edens, Birmingham City Attorney's Office, Birmingham, AL, for Defendant-Appellant.

M. Clay Ragsdale, Birmingham, AL, William M. Dawson, Dawson & Gear, Birmingham, AL, for Plaintiff-Appellee.

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

Before CARNES, Circuit Judge, and HENDERSON and GIBSON *, Senior Circuit Judges.

CARNES, Circuit Judge:

Municipal liability under 42 U.S.C. § 1983 may be premised upon a single illegal act by a municipal officer only when the challenged act may fairly be said to represent official policy, such as when that municipal officer possesses final policymaking authority over the relevant subject matter. The central issue in this appeal is whether the City of Birmingham's Police Chief is a final policymaker with respect to disciplinary suspension decisions at the City's police department. Had the City not waived the issue, we would be inclined to hold that the Chief is not a final policymaker, because his disciplinary suspension decisions are subject to meaningful administrative review by the Jefferson County Personnel Board. But the City did waive the issue. For that reason and because no issue that was preserved by the City warrants reversal of the judgment, we will not reverse the judgement imposing municipal liability in this case.


Scott Morro has been a police officer with the City of Birmingham since 1986. On June 3, 1990, Morro arrested a man named Moses Payne on a charge of disorderly conduct. At that time, Morro's partner, Officer Rodney Hall, was patrolling the Kingston Housing Project with Morro. Hall contemporaneously but independently arrested another man, Benjamin Franklin, who had attempted to interfere with Payne's arrest. Although each officer independently arrested only one suspect, Morro and Hall cross-referenced Payne's and Franklin's arrest reports by listing the two defendants as accomplices of each other. Payne pleaded guilty, but Franklin's case proceeded to trial.

Before Franklin's case went to trial, a highly-publicized event occurred at a July 4 celebration in Birmingham: The mayor's daughter, Erica Arrington, was arrested on charges of inciting a riot. Ms. Arrington was arrested by Officer Jerry Bahakel, who worked in the same precinct as Morro.

Ms. Arrington was tried in municipal court before Judge Carol Smitherman. The trial was widely attended by the press and interested citizens. It lasted two days, including a Friday night and a rare Saturday session of municipal court. Morro and a number of other South Precinct officers attended parts of the trial, apparently in a show of support for Officer Bahakel. At the conclusion of the trial, Judge Smitherman found Arrington not guilty of all the charges against her. 2

Benjamin Franklin's case was scheduled to be heard before Judge Smitherman the very next Monday. Morro was subpoenaed to court, and the City prosecutor interviewed Morro about Franklin's arrest. Apparently, the prosecutor hoped that Morro would be able to identify Franklin, even though Morro had not arrested him, because the arrest occurred contemporaneously with Morro's arrest of Moses Payne. To the prosecutor's disappointment, Morro stated that he could not remember anything about Franklin's arrest. Thereafter, Morro was excused from the courtroom. Officer Hall, who had arrested Franklin, was called as a witness, and he provided sufficient testimony to convict Franklin.

For some time after the Arrington acquittal, Judge Smitherman perceived that there were increasing instances of forgetfulness and absenteeism among officers who were called to testify in her courtroom about arrests they had made. About a month after the Arrington trial, Judge Smitherman complained to the police department about the problem, and an investigation of the matter was launched by the internal affairs division of the department. Lieutenant Lee Ann Self was assigned to conduct the investigation. That investigation was directed toward Morro and one other allegedly forgetful officer.

After concluding her investigation, Lieutenant Self recommended that Morro be disciplined for a violation of departmental rules. Morro was charged with being unprepared for court, and a hearing was held before Police Chief Arthur Deutcsh. Subsequently, Chief Deutcsh suspended Morro without pay for thirty days, and Morro thus became the first officer in Birmingham history to be charged with or sanctioned for being unprepared for court.

As he was entitled to do under applicable City rules and regulations, Morro appealed the Chief's suspension to the Jefferson County Personnel Board. The Personnel Board assigned a hearing officer, Ann Arnold, to hear Morro's case. After hearing all the evidence, she prepared a written report, which recommended that the Board rescind Morro's suspension. The Board agreed, and Morro was reinstated with back pay.


After Morro was reinstated, he filed this lawsuit, seeking declaratory, injunctive, and monetary relief against Chief Deutcsh (individually and in his official capacity) and the City of Birmingham. The City moved to dismiss the complaint, primarily on the ground that it was not supported by specific factual allegations. The district court dismissed the complaint for vagueness, but gave Morro leave to amend.

Morro timely filed an amended complaint, and the City filed an answer denying all the material allegations it contained. Following a pretrial conference, the City filed a motion for summary judgment. That motion sought summary judgment both on the merits and, alternatively, on grounds of qualified immunity insofar as Deutcsh was sued in his individual capacity. The district court denied the motion, and the City took an interlocutory appeal of the denial of qualified immunity. Thereafter, this Court issued a three-sentence per curiam opinion that reversed the district court's denial of qualified immunity. See Morro v. City of Birmingham, 39 F.3d 325 (11th Cir.1994).

On March 23, 1995, the City filed a second motion for summary judgment. In that motion, the City contended that our prior qualified immunity decision established that the discipline levied against Morro was not the result of any unconstitutional policy. More specifically, the City contended:

Defendant Deutcsh was at the time of his decision to impose discipline upon the plaintiff the Chief of the Birmingham Police Department. As such he was entitled to and obligated to discipline employees of the department such as plaintiff for actual violations of the rules of the department.

Notably, the City's motion did not allege that Deutcsh was not a final policymaker with respect to departmental disciplinary matters, relying instead on the theory that Deutcsh's actions were not unconstitutional.

The district court denied the City's second summary judgment motion. Thereafter, the court held its second pretrial conference with the parties on April 5, 1995. Following that conference, the district court entered a pretrial order defining the scope of the issues remaining for trial. Absent from the pretrial order is any indication that there was any dispute about whether Chief Deutcsh was a final policymaker with respect to disciplinary suspension decisions at the police department. The issue was not even mentioned.

Following entry of the pretrial order, the City sought certification under 28 U.S.C. § 1292(b) for an interlocutory appeal of the district court's denial of its summary judgment motion. In its motion for § 1292(b) certification, the City did not identify as a controlling question of law whether Chief Deutcsh was a final policymaker with respect to the discipline levied against Morro. The district court granted the § 1292(b) certification, and this Court granted permission for the appeal. However, that interlocutory appeal subsequently was dismissed for want of prosecution, because the City failed to timely file a civil appeal statement form and pay the $105.00 docketing and filing fee.

The case proceeded to a jury trial. The jury was drawn from a "holdover" venire, which consisted of eighteen white venirepersons who had not been selected for service on any of the cases called during the preceding two weeks. The City challenged the venire based on "the way jury rolls are drawn up in the Northern District [of Alabama]," but did not raise any equal protection challenge to the venire on the grounds that it was comprised of "holdover" jurors, all of whom happened to be white. The district court rejected the only venire challenge that the City did raise, and a jury was selected from the all-white holdover jury pool.

During the trial, Morro proffered three "pattern and practice" witnesses. Morro expected those witnesses to testify that they had also suffered adverse employment action at the hands of the Chief in retaliation for their participation in protected speech activities. The City objected on relevancy grounds. The district court sustained the objection on the basis that the City had conceded that the Chief was the policymaker with respect to the disciplinary decision at issue, explaining:

Well, is it not conceded from the pretrial, is my recollection of this case ... that the City of Birmingham, as is true of most if not all municipalities, has as its decisionmaker ultimately with respect to police command decisions the chief, so that we're not talking about and the defendant is not attempting to distance itself from whatever it was that Chief Deutcsh did or didn't do that might or might not constitute a violation of a constitutional right of the plaintiff because under Pembaur...

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