Morrow v. Crisler

COLEMAN, Circuit Judge

(dissenting) :

I agree that no properly qualified person should be denied appointment to the Mississippi Highway Safety Patrol on account of race, color, religion, national origin, or any other factor contrary to the basic principles protected by the Fourteenth Amendment. That is not my difficulty with this appeal. It appears clear to me that the majority opinion incorrectly travels beyond Constitutional requirements in several respects; therefore, I must respectfully dissent to much of the language appearing therein. I have particular reference to the open hints that minimum requirements for eligibility may be reduced, that the requirement of a high school diploma or its equivalent may be dispensed with, and that the State may not really satisfy itself of the intelligence of those who are to be trusted with such crucial responsibility. Finally, I do not wish to be understood as agreeing to “quota hiring”, temporary or otherwise.

With deference, the fundamental error of the majority opinion is in its approach to intelligence and educational qualifications for Mississippi state highway patrolmen as if they were mere “jobholders” or “employees”, performing routine activities, when the truth is that they are state officials, charged with the execution of duties vital to the enforcement of the law and the preservation of human life on the highways, demanding the daily exercise of sound discretion.

By an Act approved April 1, 1938, Chapter 143, Laws of Mississippi of 1938, the Mississippi Legislature created a highway safety patrol, to be composed of not more than 53 men (now expanded to 425), to be elected after an examination as to physical and mental fitness, knowledge of traffic laws, the law of arrest, and acquaintance with the rules and regulations of the State Highway Commission, the Public Service Commission, and the Motor Vehicle Commissioner (emphasis added). Each patrolman was required to furnish bond in the sum of $5,000 for the faithful performance “of the duties of his office” (emphasis added). After twelve months service, no patrolman may be dismissed except upon written order of the governor, after a hearing on charges filed not less than ten days in advance.

These factors made these men officials, not employees or jobholders, State v. McLaurin, 159 Miss. 188 , 131 So. 89 (1930); Golding v. Armstrong, 231 Miss. 889 , 97 So.2d 379 (1957).

Certain classes of patrolmen are vested with general peace officer jurisdiction throughout the State, as in the case of the Texas Rangers. By the duly published proclamation of the governor, all patrolmen may be assigned general peace officer jurisdiction in order to suppress mob violence, crimes of violence, riots, and acts of intimidation or terror. All patrolmen are armed with .357 magnum pistols and other highly effective weapons. Moreover, in their enforcement of the highway safety laws they encounter every year hundreds of deaths and thousands of personal injuries on the highways.

Patrolmen are generally on duty for twelve hours a day, for specified days of the week, and may be transferred at the discretion of the Commissioner to any point in the State where it is believed that their services may best be utilized. These officers deal constantly and continuously with interstate and intra-state travellers, law abiding or otherwise. They are subjected to all the hazards of any uniformed police officer and, regretfully, some in the line of duty have lost their lives since 1938. An unintelligent, untrained officer, possessed of less than average judgment and ability, armed as he has to be, may be a hazard to the travelling public. I believe that these officers perform functions which are of compelling state interest.

I cannot agree that the Fourteenth Amendment was ever intended to mean, nor that it requires, that citizenry and visitors, travelling under the protective cloak provided by the Constitution of the United States, must be subjected to arrest, imprisonment, and even more dead *1062 ly dangers at the hands of incompetent officers cf. whatever race.

Every state in the Fifth Circuit requires that its highway patrolmen shall have a high school education or its equivalent, except Texas, which requires 45 semester hours of college.

It is too late to weep when some under-educated, subnormally intelligent individual, white or black, armed with deadly weapons, unjustifiably launches a human being into eternity or severely wounds him or impermissibly deprives him of his liberty simply because that officer was thrust into a position for which he lacked the education, the intelligence, and the sound judgment to deal with problems which highway patrolmen have to encounter every day. Moreover, it is too late to weep for the officer’s wife and children when he is brought home a corpse, the victim of a criminal who had the mental advantage of him from the start. So, as a court of equity, as we are in this case, we should be extremely wary of the exercise of our own discretion to downgrade the quality of enforcement and protection which the people are entitled to expect on the highways.

That is not all. I believe that under the binding precepts of federal-state relations, the state has the right to prescribe the qualifications and duties of those state officials who are charged with the performance of purely state functions, certainly so, as long as those qualifications are neither arbitrary, nor unreasonable, nor capricious, nor racially discriminatory.

I refer to the language of the Supreme Court in Carter v. Jury Commission of Greene County, 396 U.S. 320 , 90 S.Ct. 518 , 24 L.Ed.2d 549 (1970):

“It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. ‘Our duty to protect' the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a crpsssection of the population suitable' in character and intelligence for that civic duty’.” [Emphasis aded and footnotes omitted]. 90 S.Ct. at 525 .

If this may be said of those who are to perform the comparatively safe functions of a juror, and under the directions of a presiding judge, then how much more true should it be of those who are to spend their days in the highly transitory conditions of the highways, apprehending criminals, succoring the injured, handling fatalities, and trying to improve driving practices.

The test is whether the qualifications are “capable of being carried out with no racial discrimination whatsoever”. Id., at 526.

There is nothing in this record to suggest that Mississippi is so bereft of Negro high school graduates and college trained persons that it has no adequate pool of qualified individuals for highway patrol service. I think common knowledge shouts loudly to the contrary. Of course, one cannot be drafted into the patrol, as he can be for military service, and there are many who are reluctant to undertake this dangerous work. There are many who do not like twelve hour days or transfers to strange territory. That, in a free society, is their privilege. It should not, however, be converted into an engine for the employment of individuals, of any race, who, unfortunately, are of inadequate intelligence or handicapped by lack of a reasonable education. Indeed, it smacks of judicially asserted notions of racial inferiority to suggest that standards of intelligence and education have to be relaxed if the Negro applicant is to be able to meet the requirements. I am sure the majority had no such thought in mind.

The majority opinion states that the District Court “may, within the bounds *1063 of discretion, order temporary one-to-one or one-to-two hiring, the creation of hiring pools, or a freeze on white hiring, or any other form of affirmative hiring relief until the Patrol is effectively integrated”.

If “temporary” quotas are permissible, I fail to see why a “permanent” quota would be impermissible. Relying on Harper v. Foster, 4 Cir., 1973, 386 F.2d 1134 , and especially in view of our dealing with state officials rather than mere employees performing routine tasks, I would make it clear to the District Court that hiring quotas and “white freezes” are not appropriate tools in the resolution of this problem. I agree with what the District Court said in Harper v. Mayor and City Council of Baltimore, 359 F.Supp. 1187, 1213-1215 , affirmed in Harper v. Floster, supra, that the Supreme Court has not dealt with the granting of favors or the creation of rights on a racial basis as part of a court’s remedial powers, that, without regard to race, all prospective employees and all prospective state officials have the right to consideration for selection and that the courts should not reenforce the view that it is the race of applicants which is important rather than their qualifications. In other words, the public is not required to sacrifice the qualifications of those who serve it and the qualified are not .to be denied appointment or employment because of their race.

If I had the right to decide this ease on my own, I would remand it to the District Court with the following directions :

1. The right of the State to prescribe the qualifications of those who are to perform highway patrol functions shall be undisturbed;

2. The District Court will supervise the compilation of a racially neutral intelligence test from which the State can, and will be required to, fairly and impartially determine the intelligence of its prospective officers;

3. The Mississippi Highway Safety Patrol will be required semi-annually to visit every high school graduating class and every college campus in the State for the purpose of announcing that it is seeking to recruit highway patrolmen, without regard to race or color, from among those qualified to undertake the work, explaining the qualifications in a thoroughly understandable manner. Similar announcements should be made in the press, on the radio, and by television ;

4. No qualified black applicant may be passed over for an appointment in the Mississippi Highway Safety Patrol except for an applicant who clearly and objectively possesses higher qualifications for that particular appointment;

5. Appropriate quarterly reports shall be required to insure that no duly qualified black person has been denied an appointment on account of race.

This approach should banish race as a factor in the appointment of highway patrolmen, without sacrificing the competency of the organization.

It is noted from the figures in this record that in 1972, forty-seven white applicants and one black applicant were rejected for failure to pass the physical examination, while sixty-six white applicants and fifty-four black applicants failed the prescribed intelligence test, the racially neutral character of which has not been established. In any event, there is plenty of room to' say that in the search for high quality patrol officers, both whites and blacks have been rejected in substantial numbers. It only remains for the highway patrol, in the pursuit of competence, to immunize itself in an indisputable manner from all appearances of racial discrimination. Certainly, in the proper application of racially neutral intelligence tests, plus the requirement of a high school education or its equivalent, that goal can be achieved.

I close by pointing out that we are not here dealing with a problem peculiar to Mississsippi. Depressing the competen *1064 cy of the Mississippi Highway Patrol will prove to be a bad precedent for the other states of this Circuit. According to the best records publicly available, on February 11, 1974 the racial composition of the highway patrols in these six states was as follows:

State White Black

Alabama 335 13

Florida 1088 12

Georgia 677 7

Louisiana 689 11

Mississippi 543 5

Texas 1356 16

If the education and the intelligence of the Mississippi Highway Patrol are to be diminished by judicial decree, no prophet is required to name the next on the schedule for similar treatment.

I would remand the case for a more meaningful effort to recruit qualified patrolmen of the Negro race, but not by the methods hinted by the majority opinion. As to those features of the opinion, I respectfully dissent.