# Gilmere v. City of Atlanta > Court of Appeals for the Eleventh Circuit · October 15, 1985 · 774 F.2d 1495 URL: https://www.frixlaw.com/law-library/cases/8935376 ## Case - **Full name:** Emma F. GILMERE, individually and as Administratrix of the Estate of Thomas E. Patillo, and for the benefit of his next of kin v. CITY OF ATLANTA, GEORGIA - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** October 15, 1985 - **Citations:** 774 F.2d 1495; 1985 U.S. App. LEXIS 23839 - **Precedential status:** Published - **Opinion:** Dissent by Hill - **Judges:** Hill, Johnson, Tjoflat, Vance - **Cited by:** 202 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Graham v. Connor, 490 U.S. 386 (1989). - Negative treatments: 2 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8935376 ## How later opinions describe it (automated extraction) - finding a Fourth Amendment vio- lation where officers beat and shot a drunk suspect during a scuffle that ensued after the suspect resisted arrest and attempted to flee on foot - recognizing that "the violations which give rise to a substantive due process claim are necessarily more egregious than those which give rise to simple tort actions” - stating that “any fear on the officer’s part was the fear of retaliation against [the officer’s] own unjustified physical abuse” ## Opinion text JAMES C. HILL, Circuit Judge, dissenting: In my view this is a procedural due process claim under the Fourteenth Amendment. I do not view this as a Fourth Amendment violation. The seizure had taken place pursuant to adequate cause. The Fourth Amendment specifically addresses police-citizen encounters, but the Fourteenth Amendment yet prohibits police from depriving those who have been taken into custody of life, liberty or property without due process of law. The claim is asserted for deprivation of a liberty interest. No claim was brought under the Georgia Wrongful Death statute. This interest is protected from deprivation under color of state law without due process by the Fourteenth Amendment. The primary issue we took en banc was the effect of Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981) on such a claim. My view falls somewhere between Judge Vance’s relegation of Parratt to claims involving trivial property deprivation and those who view Parratt as barring all *1514 § 1983 claims when state law provides an apparent remedy. The bar to a § 1983 action under the Parratt rationale does extend to more than cases involving property of small value. Ingraham v. Wright, 430 U.S. 651 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977) involved liberty, as does this case. Yet, I am now persuaded that the mere existence of a state statute said to provide redress for the wrong inflicted under state law will not automatically insulate a wrongdoer from the federal forum. Section 1983 was enacted to provide a federal remedy in those situations where there existed no state remedy and where, in fact, recourse to the state remedy would be of no practical value. Monroe v. Pape, 365 U.S. 167 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961). Section 1983, called the Ku Klux Klan act, was born at a time when inadequacy of recourse to state remedy for the wrongs with which it was concerned could be judicially noticed. It was reborn in the era of state and regional adverse reaction to the implementation of constitutional rights of minorities. State forums could be assumed inadequate to the redress of wrongs inflicted upon civil rights advocates. Parratt addressed a situation where the court could know that Nebraska’s courts were adequate to a claim that a state officer had lost petitioner’s $23.50 hobby kit. In Ingraham , the Court was willing to know that Florida law and procedure was acceptable for the vindication of a claim that corporeal punishment (a “paddling”) by school administrators had escalated into unlawful assault. We are instructed by these cases that no § 1983 claim will lie where there is not only state law and procedure “on the books,” but it can be known to be adequate in fact. We are also told that, if we know that recourse to state law may not be expected to provide relief, § 1983 may be invoked. Just how we are to acquire that knowledge in cases falling between the environments in several states late in the 19th century (and repeated in the early decades of the second half of the 20th century), on the one hand and Nebraska’s view of the deprivation of $23.50 in property in 1981 is not clear. Had Patillo’s survivor filed suit for wrongful death (or his administrator for a surviving claim for injury) in the Superior Court of Fulton County, Georgia, would she have found a receptive, adequate forum? To say that the availability of a state remedy is immaterial appears to abide Monroe v. Pape, (a Fourth Amendment violation case) but it seems inappropriate in a due process case to hold immaterial that which was found by the High Court to be controlling in Parratt and Ingraham . Yet, I am not prepared to say that district judges are required to hold hearings and make findings as to the adequacy in fact of recourse to state courts in all of the counties and judicial districts embraced in their federal court districts. One may find the “bright line” defined by ascertaining what the established state policy is. If the deprivation without due process results from established state policy, the person deprived may invoke § 1983; if it results from random acts of one acting under color of state law, but not in accord with state policy, and a state remedy exists, no federal claim is to be found. One who has suffered a loss of federally protected rights as a result of action taken pursuant to state policy ought not be relegated to state procedures for redress. Where state policy denounces the infliction of the wrong, its institutions should satisfy due process. Today such a rule seems the only one available to bring ourselves in line with Parratt and yet afford a federal forum to those for whom state remedies would be of little value. Therefore, I should reverse the judgment against the officers entered upon a finding of their random acts, contrary to state policy. Thus, with the misgivings of one seeking to discern a rule as opposed to following one, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8935376. Public record. Not legal advice.