Henry Lee Bryan v. Clarence Jones, Sheriff, Henry Wade, Dist. Atty., Fidelity & Deposit Co. Andlena Giddens

GEE, Circuit Judge

(dissenting in part and concurring in part):

In this § 1983 action, essentially for false imprisonment, Plaintiff-Appellee Bryan was awarded judgment for $40,-000 on a jury verdict against Jones, Sheriff of Dallas County, and in part against Jones’ surety. This resulted from conflicting instructions from above. The District Attorney had dismissed charges upon which Bryan was held. There was an error in the preparation of a grand jury report, upon which report the jury found Jones relied, and which indicated Bryan continued under indictment. By the time these matters were unscrambled, Bryan had spent thirty-six too many days in jail under conditions sufficiently overcrowded and otherwise unpleasant as to produce a verdict exceeding $1,100 per day. Jones and his surety appeal, and we vacate for the reasons stated at the end of the majority opinion. In these I concur.

Defendants, however, sought an instruction on good faith as a defense, were refused it, and have assigned this *47 refusal, inter alia, as error. Bryan has rejoined, successfully as it falls out, that under our decision in Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968), cert. denied, 396 U.S. 901 , 90 S.Ct. 210 , 24 L.Ed.2d 177 (1969), good faith is not a defense to a § 1983 false-imprisonment-type action. Kern was a case where the defendant sheriff sought to parlay a jury finding of no negligence in overholding a prisoner for nine months into one of good faith, and language in that opinion supports Bryan’s position. 1

Our court has, however, explicitly adopted a different view in more recent cases of this type, and until today Bryan’s view of the Kern language represented a road once possible but not taken. In Dowsey, for example, a § 1983/false-imprisonment case where a sheriff had detained and interrogated a juvenile in a plainly desperate effort to identify the drug which his unconscious and hospitalized companion had taken, we held in specific language about false imprisonment, which is in no sense dicta, but which the majority now disavows:

The Sheriff and Chief of Police contend that they acted only in an attempt to save Robberson’s life and thus are entitled to use their good faith as an absolute defense. This is an erroneous view of the law of false imprisonment. No matter how laudatory the motives of the Sheriff and the Chief of Police may have been, such motives alone are not sufficient to arm them with a privilege to detain and interrogate a citizen for hours, threaten him with jail unless he tells them what they want to know, and then attempt to prevent his leaving the place of interrogation and detention if there is no underlying right to deprive that person of his freedom.

Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967), held that an officer’s assertion of a reasonable good faith belief that he had probable cause to arrest created a jury issue in a Section 1983 action against him for false arrest and imprisonment. In reasoning to this result, the Supreme Court emphasized that actions under Section 1983 were analogous to tort actions and therefore a defense which would establish that no tortious wrong had in fact been committed was equally available in either type suit. This kind of good faith would be as applicable to a defendant in a Section 1983 action for false imprisonment unaccompanied by any claim of false arrest. However, mere good intentions which do not give rise to a reasonable belief that detention is lawfully required cannot justify false imprisonment whether the action is founded in tort or under Section 1983. See Whirl v. Kern, 407 F.2d 781, 790-791 (5th Cir. 1969), cert. denied, 396 U.S. 901 , 90 S.Ct. 210 , 24 L.Ed.2d 177 (1969).

Dowsey v. Wilkins, 467 F.2d 1022, 1025 (5th Cir. 1972) (emphasis added). Jones’ requested (and refused) charge in this case draws precisely the above distinction between “mere good intentions” and a “reasonable good faith belief” that he' had a duty to restrain Bryan, and appears to have been adapted from our above language. What could be more natural? Kern is cited by the Dowsey panel as authority for this view. And our later cases citing Dowsey confirm *48 the availability as a defense of the sort of good faith asserted here — not a mere claim of generally-laudatory motives — in cases just such as this. Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974); Johnson v. Greer, 477 F.2d 101 (5th Cir. 1973). Recent Supreme Court decisions in the area, though not about sheriffs or jailers, generally recognize the existence of this defense in § 1983 actions against public officers. Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975); 43 U.S.L.W. 4293 (U.S. Feb. 25, 1975) (school board members who were scarcely making snap decisions under pressure); Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974) (state governor, national guard officers and university president, some, but not all of whom, were). We now hold that neither malice nor good faith, its converse, is of sufficient significance even to ask the jury about it. Reading Dow-ney, and its progeny in our circuit, it does not put matters too high to say that I am confounded by this result. A jailer so unfortunate as to receive conflicting instructions, as did Jones, must divine at his peril when we mean what we say and when we do not, a task to which I, at least, am here established unequal.

One who in bad faith holds another whom he has been ordered to release is entitled to whatever mulcting, in reason,, a jury decrees. But one who acts in good faith and can show it should not be punished for being a jailer. Jones should have been allowed a chance to establish his good faith. It should be held a defense. I would reverse.

. E. g., “As we read Pierson v. Ray and Monroe v. Pape, neither good faith nor non-negligence can exculpate Kern from liability.” 407 F.2d, at 790 . Despite this explicit language, not only we, in Dowsey v. Wilkins, 467 F.2d 1022 (5th Cir. 1972); Johnson v. Greer, 477 F.2d 101 (5th Cir. 1973) and Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), but also the Fourth Circuit, in Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970) and the Seventh Circuit, in Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), have been unable to live with the clearly-intended import of the case. As we noted in Burton v. Waller, 502 F.2d 1261 , 1274 n. 6A (5th Cir. 1974), cert. denied, 420 U.S. 964 , 95 S.Ct. 1356 , 43 L.Ed.2d 442 , 43 U.S.L.W. 3474 (U.S. March 4, 1975), our sister circuits noted read Kern as based on the defendant’s negligence, a construction impossible to square with its language, and our Burton opinion refuses to concede that even gross negligence suffices for liability under it. Today’s resurrection of it as mandating absolute liability is untimely indeed.