Henry Lee Bryan v. Clarence Jones, Sheriff, Henry Wade, District Attorney, Fidelity & Deposit Co.& Lena Giddens

CLARK, Circuit Judge, with whom GOLDBERG and GODBOLD, Circuit Judges,

join, dissenting:

Until today the narrow rule of Whirl v. Kern remained unimpeached by related legal developments in the Supreme Court and this circuit. Yet with the policy reasons undergirding its principles as compelling and persuasive as the most recent Supreme Court reasoning, 1 the majority rejects Whirl’s precedent and casts it adrift to become a derelict in the law. Today’s en banc majority feels it necessary to engraft a “reasonable good faith” defense onto this § 1983 false imprisonment action. This procedure serves only to unsettle settled law and to award the defendant a second trial on the same evidence under a rule of law functionally indistinguishable from that which a properly instructed jury has already applied in this case.

At common law, a jailer’s privilege to detain was narrower than that accorded to police officers making an arrest. The policeman could escape liability by asserting that his decision, though mistaken, was made in good faith and with probable cause. Pierson v. Ray, 386 U.S. 547, 555 , 87 S.Ct. 1213, 1218 , 18 L.Ed.2d 288, 295 (1967). No comparable immunity has ever been afforded to one acting as a jailer. To avoid liability, he who kept the gaol was required to follow orders strictly and perform his limited non-discretionary duties promptly and carefully. Whirl v. Kern, 407 F.2d 781, 791 (5th Cir. 1969).

Whirl v. Kern drew heavily upon this common law background. Following the cue of the Supreme Court, we “impressed the common law of torts into the service of the Civil Rights Act” to decide what defenses were available to a jailer in a § 1983 false imprisonment action. 407 F.2d at 791 . The process employed was not limited to discovery and automatic application of the prevailing general law view. Rather, to insure that the common law rule continued to make sense and conformed to the purposes of the Civil Rights Act, Whirl tested it against our current assessment of the realities of the prisoner-jailer relationship and concluded that there was no present need to refashion the rule. 407 F.2d at 792 .

Whirl held that neither good intentions nor non-negligent conduct in general could insulate a jailer from liability. 407 F.2d at 790 . It recognized, however, that this rather rigid general rule did not translate into strict liability in every instance of an illegal imprisonment. A jailer was protected as to his initial incarceration if he justifiably relied on a warrant of commitment valid on its face. 407 F.2d at 791 . Thus, though not in haec verba, Whirl stated that a reasonable good-faith belief that confinement is legal constituted a defense. This type of immunity can be aptly termed derivative because it partakes of the absolute immunity accorded to acts and orders issued by judges in their official capacity.

When an initially proper confinement subsequently becomes illegal, Whirl defined the liability equation as more complex. Since a jailer is responsible for *1220 the timely release of his prisoners, he must continue to ascertain whether his legal authority to hold his charges remains viable. A total failure to make this inquiry or a failure to correctly update records clearly could result in liability. Whirl said the inaction of a jailer in this regard did not ripen into tortious conduct, however, until after “a reasonable time for the proper ascertainment of the authority upon which his prisoner is detained” has passed. 407 F.2d at 792 . The length of this reasonable grace period could increase or decrease depending on the circumstances of the individual case and the difficulties in transmission of dismissals, discharges, etc. Under Whirl it was theoretically possible for the period to be extended indefinitely if no amount of due diligence could correctly ascertain a prisoner’s status or uncover mistakes. To this extent, Whirl established that a reasonable good faith belief based on unavoidable error would be a shield from liability.

Whirl precisely defined and delimited the nature and scope of these “good faith” defenses or privileges. It discarded amorphous terms such as “good faith” and “non-negligence” in favor of particularized rules designed to mesh more neatly into the intentional tort framework and to let the jailer know his rights and obligations in terms of his job functions. Whirl not only provided doctrinal cleanliness, but its narrow privileges were also the most appropriate response to the jailer’s predicament and were tailored precisely to fit the prisoner-jailer context.

The Supreme Court has not yet ruled on the scope of a jailer’s immunity in a § 1983 false imprisonment case. I respectfully differ with the majority’s assertion that its recent pronouncements on official immunity in other contexts have eroded the holding of Whirl in any way. Neither Scheuer nor Wood attempted to articulate a wholesale official immunity for all state executive officers. In the recent case of Imbler v. Pachtman, - U.S. -, 96 S.Ct. 984 , 47 L.Ed.2d 128 , 44 U.S.L.W. 4250 (1976) the Court again flatly rejected the argument that all state executive officials possess the same kind of qualified immunity:

[O]ur earlier decisions on § 1983 immunities were not products of judicial fiat that officials in different branches of government are differently amenable to suit under § 1983. Rather, each was predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.

Id. at -, 96 S.Ct. at 990 , 47 L.Ed.2d at 138 , 44 U.S.L.W. at 4254.

Two considerations emerge from these decisions which are pertinent to today’s case. First, consistent with Pierson , the Court continues to regard the common law as the proper authority for determining the defenses available to particular state officials in parallel § 1983 actions. Wood v. Strickland, 420 U.S. 308, 318 , 95 S.Ct. 992, 999 , 43 L.Ed.2d 214, 223 (1975); Scheuer v. Rhodes, 416 U.S. 232, 242 , 94 S.Ct. 1683, 1689 , 40 L.Ed.2d 90, 99 (1974). While refusing to treat common law tradition as an infallible guide, the Court has not abandoned its habit of consulting factually similar common law cases in its search for the appropriate rule. See Theis, “Good Faith” as a Defense to Suits for Police Deprivations of Individual Rights, 59 Minn.L. Rev. 991, 1017 (1975). Second, when necessary, the Court is willing to mold the federal immunity or defense to avoid “discouraging effective official action by public officers charged with a considerable range of responsibility and discretion.” 420 U.S. at 317 , 95 S.Ct. at 998-99 , 43 L.Ed.2d at 222 . The emphasis is on providing a workable federal remedy without deterring the ability of “government to govern.” 416 U.S. at 242 , 94 S.Ct. at 1689 , 40 L.Ed.2d at 99 . Whirl’s notes harmonize with both of these themes.

As the majority readily acknowledges, a jailer’s tasks are essentially ministerial and do not call for on-the-spot decision-making. This official does not need the leeway of the policeman who must make a quick, stressful choice between several options. For this reason, I fail to see *1221 how the short “good faith” defense discussion in O’Connor v. Donaldson adds or subtracts anything from Whirl . The hospital administrator sued in O’Connor was armed with the power to decide which mentally ill patients should be released from a state facility. Like the military officials and school administrators in Scheuer and Wood , O’Connor was often required to make subtle and difficult choices to successfully function in his job. Surely the mere fact that both cases involved false imprisonment claims is not enough to warrant supplanting Whirl’s narrow privilege rules with the broad formulation of “good faith” immunity outlined in O’Connor.

The post- Whirl decisions of this court provide even less assistance to the majority in its determination to cast Whirl into limbo. The defendants in Dowsey and Johnson attempted to assert “defenses” which were nothing more than excuses based on good intentions or non-malicious motives. Consistent with the prescriptions of Whirl , rather than contrary to it, I wrote for the court that such subjective “good intentions” claims were not recognized as defenses under the Civil Rights Act. The language in both opinions implying that these defendants, neither of whom acted purely as a jailer, might have succeeded if only their beliefs had been more objectively reasonable was unnecessary to either decision. More importantly, it was never intended to modify the exhaustive analysis made by Whirl of the law applicable to a jailer who failed to release his prisoner when legal restraint authority expired.

In Bryan’s case, the factfinders sifted the evidence concerning the erroneous grand jury report, the arrest warrants, indictments, etc., and concluded that Sheriff “Jones failed to make a reasonable and timely investigation into the legal authority to imprison [the plaintiff] Bryan after March 3, 1972.” (Emphasis added.) They did so under the specific guidelines of Whirl which provided a comprehensible framework for the jury’s decision. The majority now undoes this verdict and remands for a new trial with unspecified instructions concerning the availability of a reasonable good-faith defense and indicates that the jailer-sheriff must be exonerated if the “errors took place outside his realm of responsibility.”

The problem with this approach is that one jury has already decided that Sheriff Jones failed to carry out his legal responsibility by neglecting to conduct a reasonable, timely investigation into his authority to hold his protesting prisoner after March 3. Today the court destroythis verdict and permits Sheriff Jones to ask a second jury if they view his unreasonable, untimely failure to carry out his plain and clear duty to look to his own records as reasonable good faith action— two conditions that cannot co-exist. Thus, I view the net effect of today’s decision as twofold: (1) it gives the defendant jailer an unwarranted new trial on liability rather than damages alone; although this is undesirable, the real harm is (2) the injection of an unnecessary element of confusion into the § 1983 law governing the responsibility of jailers.

I respectfully dissent.

. See Imbler v. Pachtman,-U.S.-, 96 S. Ct. 984 , 47 L.Ed.2d 128 , 44 U.S.L.W. 4250 (1976).