Petitioners Brief — Baker v. McCollan

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| MAR 1 1979

$a RRP, JR., CLERK

In the

Supreme Court of the United States

October Term, 1978

No. 78-752

T. L. BAKER,

Petitioner,

v.

Linnie Cart McCoLtan,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR PETITIONER

A. W. SoRe te III,"

P. O. Box 9158,

Amarillo, Texas 79105

Kerry KNorpPP,

JOHN L. OWEN,

Office of the County Attorney,

Potter County Courthouse,

Amarillo, Texas 79101

Attorneys for Petitioner,

T. L. Baker.

Of Counsel:

UNpEerwoop, WILSON, SUTTON,

Berry, STEIN & JOHNSON

P. O. Box 9158

Amarillo, Texas 79105

* Counsel upon whom service is to be made.

———

INDEX

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED pan

QUESTIONS PRESENTED

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

I.

An action under 42 U.S.C. § 1983 must be based

upon conduct of the Defendant causing a depri-

vation of a protected right.

A. Respondent was not deprived of liberty

“without due process of law” when arrested

pursuant to a warrant valid on its face.

B. Petitioner did not intend to confine and act

to confine Respondent merely because he

authorized his deputies to execute a

valid warrant.

II.

A failure to act is not cognizable under 42 U.S.C.

§ 1983 absent proof of knowledge of the need

to act at the time of the failure to act.

A. Simple negligence alone should not support

an action under 42 U.S.C. § 1983.

B. A failure to act is not negligence absent

knowledge requiring action.

CONCLUSION |

10

A

ii CITATIONS

Cases

Page

Atkins v. Lanning,

556 F.2d 485 (10th Cir. 1977) 9, 10

Bonner v. Coughlin,

545 F.2d 565 (7th Cir. 1976) 6, 17, 18

Butz v. Economou,

—__ US. ____, 57 L.Ed.2d 895 (1978) 21

Carey v. Pure Distributors Corp..

124 S.W.2d 847 (Tex. 1939) 23

Columbia & Puget Sound R.R. Co. v. Hawthorne,

144 U.S. 202 (1891) 21

Estelle v. Gamble, 429 U.S. 97 (1976) 21

Francis v. Lyman, 216 F.2d 583 (1st Cir. 1959) 7

Gulf Refining Co. v. Delavan,

203 F.2d 769 (5th Cir. 1953) | 22

Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973) 13

Jennings v. Patterson,

460 F.2d 1021 (5th Cir. 1971) ; 12, 14

McBeath v. Campbell, 12 S.W.2d 118

(Tex. Comm’n App. 1921, holding approved) 20

Mobil Chemical Co. v. Bell,

517 S.W.2d 245 (Tex. 1975) 22

Monell v. New York City Dep’t of Social Services,

436 U.S. 658, 56 L.Ed.2d 611 (1978) 13, 14

Monroe v. Pape, 365 U.S. 167 (1951) 11, 16

Paul v. Davis, 424 U.S. 693 (1976) 18

Perry v. Jones, 506 F.2d 778 (5th Cir. 1975) 7,8,9

Procunier v. Navarette, 434 U.S. 555 (1978) 6, 17, 21

CITATIONS iii

Cases — (Continued)

Page

Rankin v. Nash-Texas Co., 105 S.W.2d 195

(Tex. Comm’n App. 1937, opinion adopted) 22

Rizzo v. Goode, 423 U.S. 362 (1976) 12, 13, 14, 21

Robinson v. Crump, 422 S.W.2d 536

(Tex. Civ.App. — Houston [14th Dist.] 1967),

writ ref’d n.r.e. per curiam, 427 S.W.2d 861

(Tex. 1968) 22

Rodriguez v. Ritchey,

539 F.2d 394 (5th Cir. 1976) 8

Texas & P. Ry. Co. v. Bigham,

38 S.W. 162 (Tex. 1896) “ 23

Workman v. Freeman, 289 S.W.2d 910 (Tex. 1966) 20

Constitution of the United States

Section (1) 14th Amendment, U. S. Constitution 2,6, 18

Statutes

28 U.S.C. § 1254 (1) | 1

42 U.S.C. § 1983 ,.. 2, 3, 4, 6, 7, 10, 12, 13, 15,

16, 17, 18, 19, 20, 23, 24

Rules

Fep R. Evin. 407 .. tins 14, 21

In the

Supreme Court of the United States

October Term, 1978

No. 78-752

T. L. BAKER,

Petitioner,

v.

Linnie Cart McCoL.an,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the Court of Appeals is officially recorded

in volume 575 F.2d 509 (1978) and is set forth in the

appendix, pp. 17-23."

JURISDICTION

The judgment of the court below (A.17-23) was entered

on June 19, 1978. A timely petition for a rehearing was

denied on August 10, 1978. The petition for writ of cer-

tiorari was filed on November 6, 1978 and was granted on

January 15, 1979. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

1 Hereafter, the separately bound appendix to the brief shall be

referred to as “A”. References to portions of the transcript of

proceedings not in the appendix shall be indicated “Tr.”.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. Constitution of the United States:

Section 1 of the fourteenth amendment to the Constitu-

tion provides in pertinent part:

“ No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.”

2. United States Code:

42 U.S.C. § 1983 provides:

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress.”

QUESTIONS PRESENTED

1. Whether a failure to have established administrative

procedures which might have secured the release of Re-

spondent is actionable under 42 U.S.C. § 1983 absent intent

to injure, knowledge of facts requiring action or deliberate

indifference to consequences of inaction when the Respon-

dent was arrested and confined in good faith reliance on a

valid warrant.

2. Whether, as a matter of law, the Sheriff should be

entitled to qualified immunity from claims made under

Eee

3

42 U.S.C. § 1983 when the good faith of the Sheriff is con-

ceded and the reasonableness of the arrest and confinement

is supported by a validly issued warrant in ‘he name of

Respondent.

3. Whether an official “causes or subjects” one to a

deprivation of his rights merely because he has failed

through simple negligence to institute a procedure to un-

cover mistakes of others which were the causes, in fact,

of the deprivation.

STATEMENT OF THE CASE

Petitioner T. L. Baker became Sheriff of Potter County

on November 20, 1972 (A. 24) following the death of his

predecessor (A. 54). At the time he became Sheriff, there

was an outstanding warrant for the arrest of one “Linnie

Carl McCollan” dated November 3, 1972 (A. 118, P. Ex. 7,

admitted Tr. 103). On December 26, 1972 the Potter

County Sheriff’s Department was notified that the said

“Linnie Carl McCollan” was being held by the Dallas

Police Department, and on December 30, 1972 a deputy

was dispatched to return the prisoner on the warrant (A.

42, 43). Respondent was brought to the Potter County

jail on December 30, 1972 and held there until released on

January 2, 1973 (A. 44, 45).

Petitioner Baker was not keeping regular office hours

during the holiday period of December 30, 1972 through

January 1, 1973 (A. 64). Though he was in contact with

the personnel at his office during the period, he had no

actual knowledge concerning the confinement of Respond-

ent until January 2, 1973 (A. 64, 65). Upon being notified

for the first time on January 2, 1973 that Respondent was

claiming not to be the person sought by the warrant, Peti-

tioner Baker investigated and determined that the warrant

4

should have been issued for “Leonard McCollan” and or-

dered Respondent released (A. 65, 66).

Petitioner Baker learned at the time of releasing Re-

spondent that a person was previously arrested as “Linnie

Carl McCollan” but was, in fact, Leonard McCollan, a

brother of Respondent (A. 61-63, 112, 113). Leonard McCol-

lan had, at the time of his arrest, exhibited a driver’s

license describing Respondent and with Respondent’s name

and driver’s license number thereon (A. 60-63). The date of

birth and other description taken from the driver’s license

exhibited by Leonard McCollan was used to identify

Respondent at the time of his arrest and was identical to

the information contained on Respondent’s then current

driver’s license (A. 95, 106, 111, D. Ex. 13, admitted Tr.

241).

Petitioner Baker’s first actual knowledge that Respond-

ent claimed not to be the person sought came on Janu-

ary 2, 1973, six days after the arrest and three days after

his transfer to Potter County. Upon learning that Respon-

dent claimed that the warrant should’ have been for his

brother, Petitioner Baker investigated and acted im-

mediately to secure the release of Respondent (A. 65, 66,

113). Following the incident, Respondent Baker inaugurated

a policy requiring deputies picking up prisoners in other

jurisdictions to take with them available mug shots and

fingerprint records (A. 52). At the time of the arrest of

Respondent such a policy either did not exist or was not

being followed (A. 52, 53).

Respondent went to trial on his Second Amended Com-

plaint in the United States District Court for the Northern

District of Texas seeking to recover under 42 U.S.C. § 1983

for false arrest and false imprisonment against the arrest-

ing police officer, the Dallas Chief of Police, Sheriff T. L.

5

Baker and his surety Transamerica Insurance Company

(A. 6). Prior to trie] the arresting officer and the Dallas

Chief of Police were dismissed from the suit (A. 15). After

full trial on the merits, the trial court granted Petitioner’s

motion for directed verdict (A. 11) and dismissed Peti-

tioner and Transamerica Insurance Company from the

case (A. 15). The court of appeals reversed and remanded

for a new trial (Opinion, A. 17). A petition for rehearing

was denied on August 10, 1978. A petition for certiorari

was filed herein on November 6, 1978 and granted on

January 15, 1979.

SUMMARY OF ARGUMENT

The Fifth Circuit, reviewing a directed verdict, found

that a fact issue was raised concerning the Constitutional

validity of Respondent’s arrest and subsequent confinement

for six days notwithstanding that he was arrested and con-

fined in reliance on a warrant naming him and that he was

identified by means extraneous to the warrant as the person

sought. In so holding, the court below creates a new due

process requirement for arrest and confinement. A valid

warrant is no longer sufficient; rather, the officers arresting

and confining must use the highest standard of care in

identifying the person to be arrested and confined or the

warrant will not fulfill the requirements of due process.

The court below further erred by equating the general

intent to “arrest and confine” with “intent to arrest and

confine without a warrant.” This error was compounded

by attributing the intent and conduct to Petitioner though

he neither participated, had knowledge of nor in any way

acquiesced in the conduct.

Even assuming a recognized federal right was involved,

there was no proof of conduct which could amount to any-

thing more than simple negligence. Yet, without directly

6

speaking to the issue, this Court has consistently required

something more than simple negligence to support a cause

of action under § 1983.

Under accepted standards of proof, the evidence did not

raise any issue of simple negligence. The fact of the occur-

rence and Petitioner’s remedial acts to prevent recurrence

are not, and should not have been considered, evidence that

his failure to have previously instituted such remedial acts

was negligent or was a legal cause of injury to Respondent.

ARGUMENT

I

An action under 42 U.S.C. § 1983 must be based upon

conduct of the Defendant causing a deprivation of a pro-

tected right.

An action asserted under 42 U.S.C. § 1983 must arise

from a deprivation of an identifiable, clearly established right

secured by the United States Constitution. Accordingly,

the threshold consideration is whether Petitioner in the first

instance has posed a Constitutional right as the underpin-

ning of his § 1983 action; absent such a showing, recourse

to § 1983 is not available.’

The cornerstone of Respondent’s § 1983 action is that

Petitioner transgressed Respondent’s “right” protected

by the fourteenth amendment to be free from confine-

ment without “due process of law”. The fundamental in-

quiry is thus whether “due process of law” embodies an

absolute requirement that an arrest effected pursuant to

a warrant be error-free. An arrest fulfills due process re-

quirements only if it stems from probable cause or a valid

warrant. However, due process requirements have never

been extended to demand the most effective possible means

* Procunier v. Navarette, 434 U.S. 555, 55 L.Ed.2d 24 (1978);

Bonner v. Coughlin, 545 F.2d 565 (7th Cir. 1976).

7

of ascertaining identity in order to have a Constitutionally

correct arrest and confinement.

A. Respondent was not deprived of liberty “without due

process of law” when arrested pursuant to a warrant

valid on its face.

Sheriff Baker’s investigation, which was prompted by

Respondent’s protestations of mistaken identity, confirmed

that the warrant should have directed the arrest of

Respondent’s brother, Leonard McCollan, rather than Re-

spondent, Linnie Carl McCollan. Nevertheless, a warrant

had been issued for Linnie Carl McCollan and unquestion-

ably Petitioner had no part in the issuance of the war-

rant.’ No question is raised concerning the validity of the

warrant. It is also unquestioned that Respondent identified

himself as Linnie Carl McCollan and that his driver’s li-

cense reflected the same birth date and license number as

the person previously arrested and for whom the warrant

should have been issued.

Generally, an arrest and confinement of a person pur-

suant to a warrant valid on its face will not support an

action under 42 U.S.C. § 1983.‘ ‘The officials executing the

warrant will be protected even though the evidence is clear

that the warrant should not have been issued for the person

arrested.’ The reasoning of the cases appears to be that

the arrest and confinement pursuant to a warrant is not a

violation of “due process” because there is no duty to

inquire concerning the facts causing the warrant to have

‘The Fifth Circuit noted, consistent with the evidence, that

Sheriff Baker could not be responsible for any failure in connection

with the issuance of the warrant because he did not take office until

~~, the warrant had been issued. Footnote 4 of opinion below,

‘ Perry v. Jones, 506 F.2d 778 (5th Cir. 1975); Francis v. Lyman,

216 F.2d 583 (ist Cir. 1954).

’ Perry v. Jones, 506 F.2d 778, 780 (5th Cir. 1975).

8

been issued. Thus, in these cases there is no deprivation of

rights so long as the officer arresting and confining the com-

plaining party was not responsible for the issuance of the

warrant.°

In the instant case the warrant was unquestionably valid

because it fulfilled all governing legal prerequisites. Rather,

the court below discarded the warrant as irrelevant by con-

cluding that because it should have been issued for Re-

spondent’s brother, Leonard, it conferred no authority to

arrest Respondent, notwithstanding that it described him.

The evidence is uncontroverted on this point. Thus the

court’s conclusion that Respondent was not the man wanted

by the warrant is merely a matter of characterization and is

certainly open to question. It is logical to conclude that

the error was the failure to name Leonard McCollan in the

warrant, and that the warrant directed the arrest of Re-

spondent. The court below dismisses this approach by

reasoning that this would be tantamount to authorizing a

sheriff with a warrant for John Smith to arrest anyone with

that name. Yet those were not the facts of this case. Here,

a warrant was issued for Linnie Carl McCollan: Respondent

identified himself as that man, not only by name but by a

driver’s license bearing an identical number and date of

birth to that of the man sought.’

“Where the arresting officer is responsible for causing an im-

proper warrant to issue, it is that conduct and not the arrest and

confinement that should be quesioned. Cf. Rodriguez v. a He

539 F.2d 394 (5th Cir. 1976) where the court considered actionable

the conduct of officers causing a warrant to issue erroneously but

exonerated the arresting officers who were not parties to the error.

7In Perry v. Jones, 506 F.2d 778 (5th Cir. 1975) the court went

so far as to create a duty to arrest under certain circumstances.

The court said:

“When Appellant identified himself to deputies holding a

warrant for his arrest, their duty was to arrest him, Greenwell v.

United States, 1964, 119 U.S. App. D.C. 43, 336 F.2d 962, cert.

denied, 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807.” Id. at 780.

9

Even if the warrant is characterized as being for another

person, it nevertheless was a valid warrant in the name of

Respondent and should have bearing on whether Respond-

ent’s deprivation of liberty was without due process of law.

Clearly the guilt or innocence of the person arrested has

no bearing on the validity of the arrest and confinement.

As the Fifth Circuit stated in Perry v. Jones:'

“A police officer who arrests someone with probable

cause or a valid warrant is not liable for false arrest

simply because the innocence of the suspect is later

established.”

The same rule should apply to the warrant before the

Court.’® Respondent was identified by evidence extraneous

to the warrant as the person named in the warrant. This is

not the case of a “John Smith” where an arresting officer

would arguably be charged with knowledge that there were

many John Smiths. Even there, however, the officer should

be protected by the warrant if the person arrested is iden-

tified as “the John Smith” by evidence other than use of

a common name.

If this Court is uncomfortable with the characterization

of the warrant as fulfilling due process for the arrest of

Respondent, the warrant nevertheless should supply, under

these facts, the elements establishing qualified immunity as

a matter of law. Such was the conclusion of the court in

Atkins v. Lanning,'' which examined a similar situation and

concluded that “the arresting officer is entitled to the quali-

fied immunity defense of a good faith belief that his be-

* 506 F.2d 778 (5th Cir. 1975).

* Id. at 780.

10 Cf. Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977).

11 Td. at 487.

10

havior was proper.”’* The same result should have followed

here where there was no evidence that Petitioner or his

deputies acted other than in the good faith belief that

their behavior was proper in executing a valid warrant.

B. Petitioner did not intend to confine or act to confine

Respondent merely because he authorized his depu-

ties to execute a valid warrant.

Assuming, arguendo, that the good faith reliance of Peti-

tioner on the warrant did not insulate him from liability

under § 1983, the court below recognized that Respondent,

nevertheless, had to present certain minimum proof to

establish a cause of action. The court below suggested two

hypotheses for concluding that the evidence created a fact

issue requiring submission to the jury. Under the first, the

court concluded that Respondent established a prima facie

case by showing:

“(1) Intent to confine; (2) acts resulting in confine-

ment; and (3) consciousness of the victim of confine-

ment or resulting harm.’’**

The second hypothesis, fully discussed hereafter, was that

Respondent established a prima facie case by showing that

Petitioner may have caused the confinement through

negligence.

Assuming the court below is correct in describing the

elements of a false imprisonment case asserted under § 1983

12 Jd. In Atkins v. Lanning, a warrant was mistakenly issued for

“Timothy Adkins” and thereon one Timothy Dale Atkins was

arrested and confined for thirty-three days before the mistake was

discovered. The arresting officer psy no part in causing the

warrant to have been issued, and notwithstanding the difference

in spelling of names on the face of the warrant, the court held that

the arresting officer was entitled to qualified immunity as a matter

of law, saying: “[Tlhe 3 officer is entitled to the qualified

immunity defense of a good faith belief that his behavior was

proper.”

18 A. 20.

11

the court’s conclusion that Respondent demonstrated the

required intent and acts on the part of Petitioner is ques-

tionable. Accepting that the intent to confine and acts

resulting in confinement need not include the specific intent

“to deprive a person of a federal right,”"* the intent and

acts to confine “without a valid warrant’ would, never-

theless, be required. The deputies did intend to confine

Respondent and did act to confine Respondent but it is

clear that the deputies were acting pursuant to the war-

rant and thus had no intent to confine without a valid

warrant.

Even if this Court treats the warrant as a nullity from a

due process perspective, the evidence does not support

the conclusion that Sheriff Baker intended or acted to

confine Respondent. Obviously, Sheriff Baker, in executing

his elected position, either implicitly or expressly autho-

rized his deputies to execute the warrant. To then conclude,

however, that as a result of this general authorization the

Sheriff intended and acted to confine Respondent is con-

trary to the evidence.

No evidence exists that Petitioner Baker specifically

intended Respondent to be arrested by the warrant. Con-

versely, affirmative evidence was presented that Petitioner

did not condone the arrest of Respondent and upon the

1* Monroe v. Pape, 365 U.S. 167, 187 (1951).

‘° Id. Monroe v. Pape, did not do away with the requirement for

intent to commit the wrongful act. In that case, a search was

conducted without a warrant. The Court only suggested that the

officers need not have a intent that conduct violate a

federal law. Here, the is extending this concept to suggest that

the officer need not have the intent to “arrest without a warrant”

which was clearly not raised in Monroe v. Pape.

12

first knowledge that Respondent was the person arrested

and confined, Petitioner acted immediately to secure his

release."

The court below founded its conclusion that the acts

and intentions of the deputies should be attributed to

Sheriff Baker upon Jennings v. Patterson" and Rizzo v.

Goode.'* The court’s reliance on these cases is misplaced.

In Jennings, the basis for attributing the acts complained

of to an official was the full knowledge and acquiescence of

the official in those very acts.’’ Similarly, it appeared in

Rizzo v. Goode, that where an official is to be charged with

the acts of subordinates, the official’s own conduct must be

such that the official can be charged as a participant.”

Thus, while citing cases suggesting another standard, the

court below actually applied the doctrine of respondeat

superior in order to recognize Respondent’s prima facie

case. This Court has recently held that a § 1983 action

A. 65-68.

17 460 F.2d 1021 (5th Cir. 1971). ‘

'* 423 U.S, 362 (1976).

'» 460 F.2d 1021, 1022 (5th Cir. 1972). In Jennings v. Patterson,

the court was reviewing a dismissal of a complaint. With respect

to the officials to whom the questioned conduct was to be attributed,

the alleged conduct occurred “with the full knowledge and

acquiescence” of the officials. The court was clearly dealing with an

allegation that the officials had actual knowledge of the wrongful

conduct. Here the wrongful conduct complained of was arrest with-

out a warrant. Sheriff Baker was not shown to have known that the

wrong man was to be arrested and thus could not have acquiesced in

such conduct nor could the court have found the requisite intent

to “arrest without a warrant” because there was a warrant.

2 423 U.S. 362 (1976). In Rizzo v. Goode, this Court also re-

jected the idea that a subordinate’s act and intent can be attributed

to his superiors oy Oy ~ the subordinates have general

authority carry out r offices or more —— because the

superiors without actual knowledge have failed to tute a policy

to prevent specific misfeasance on the part of the subordinates.

13

against a municipality cannot be founded solely upon this

common law doctrine” but that liability should rest upon

the acts of the individual defendant.** In reviewing the

application of the respondeat superior doctrine to § 1983

cases, the court in Jennings v. Davis,** discussed its history

as a “rule of policy” to deliberately allocate the risk of loss

caused by employees to the employer who could be ex-

pected to respond in damages." Thus there is no reason

not to extend the Monell holding to cases involving sheriffs

as well as municipalities.

The history and purpose of 42 U.S.C. § 1983 and its appli-

cation by the Court would appear to require participation

in the proscribed activity or, at a minimum, knowledge of

and acquiescence in the proscribed activity. In Rizzo v.

Goode,” this Court suggested the need for an “affirmative

link” between the “misconduct and an adoption of any

plan or policy” showing “authorization or approval” before

officials would be charged with the acts of subordinates.

If Sheriff Baker had previously been confronted with inci-

dents of misidentification and had approved, acquiesced in,

or simply ignored the incidents, such evidence might be

“1 Monell v. New York City Dep't. of Social Services, 436 U.S.

658, 56 L.Ed.2d 611, 636 (1978).

“0 Id.

°° 476 F.2d 1271 (8th Cir, 1973).

** Relying upon W. Prosser, Law of Torts the court in Jennings

v. Davis, concluded that respondeat superior was based upon an

economic policy rather than the suggestion that the master was

a participant in the servant’s act. court said:

“The respondeat superior principle holds liable the ‘innocent’

master (with the infamous ‘deep pocket’) for the torts committed

by his servant in the course of his omployment.” Jd. at 1274.

*° 423 U.S. 362, 371 (1976).

14

sufficient to suggest participation.”* Here, the evidence is

to the contrary. Immediately upon being notified that Re-

spondent claimed he was not the person sought, Sheriff

Baker investigated and effected the release of Respondent.

Petitioner’s good faith and lack of any wrongful intent

was further demonstrated by his conduct following this

incident in that he thoroughly investigated and instituted

new policies in an effort to prevent any recurrence.” As

will be discussed hereafter, such conduct should not have

been considered in determining whether Petitioner’s acts

were reasonable at the time of the arrest and confinement

of Respondent,”* but is certainly relevant to his intent and

good faith. “f

Petitioner submits that there was no evidence that Re-

spondent was deprived of liberty without due process of

law. If, however, the warrant was insufficient to support the

arrest and confinement in conformance with due process,

good faith reliance upon the warrant impels the conclusion

that the qualified immunity doctrine protected the Sheriff

under these facts as a matter of law. Furthermore, the

‘

%* Id. Rizzo v. Goode, 423 U.S. 362 (1976) required at least an

“affirmative link” between policy and questioned conduct; Monell

v. New York City Dep’t. of ial Services, 436 U.S. 658, 56

L.Ed.2d 611, 639 (1978) would require at least “official policy”

inflicting the injury; and Jennings v. Patterson, 460 F.2d 1021

(5th Cir. 1972) would require knowledge and acquiescence. No

such element of proof existed here.

27The testimony is clear. Sheriff Baker’s revised policy was a

result of this incident and of his investigation and efforts to prevent

a recurrence. A. 52.

#8 Petitioner objected to the introduction of evidence concerning

the investigation and change of policy after the incident. The

objection was originally sustained (A. 51) but after a lengthy argu-

ment out of the presence of the jury, the court decided to admit

the evidence (Tr. 62-67). Petitioner’s objection and the irrelevancy

of the evidence for the suggested by the Fifth Circuit

below is supported by Federal Rule of Evidence 407 and case

authority. See footnote 50, infra.

15

Fifth Circuit erroneously concluded that Petitioner in-

tended to and acted to wrongfully confine Respondent and

thus erred in failing to affirm the directed verdict granted

by the trial court.

I

A failure to act is not cognizable under 42 U.S.C. § 1983,

absent proof of knowledge of the need to act at the time

of the failure to act.

The court below in effect held that even if the arrest

was proper and the acts of the deputies of Sheriff Baker

were not attributable to him, Respondent was, neverthe-

less, entitled to have the jury answer the question of

whether Petitioner had “caused” Respondent’s confinement

by a failure to have instituted ‘alternative identification

procedures at the time Respondent was arrested.** Con-

cluding that such a failure was actionable, the court de-

cided that the failure to have these policies created a fact

issue concerning the reasonableness element of qualified

immunity.*” The “evidence” supporting Respondent’s case

and thwarting Petitioner’s immunity defense was the same

— the search for, and implementation of, new policies in

an effort to prevent a recurrence."' In so holding, the court

did not consider intent a necessary element. Thus, any

action found would be based upon unintentional conduct

or simple negligence. Furthermore, the negligence sug-

gested by the court is of the passive variety because the

2° Opinion below, A. 21.

*° Opinion below, A. 22.

81 The court noted only the evidence contained in the Sheriff's

own testimony concerning his i after the incident that other

departments considered it le to carry mug shots and

fingerprint cards when executing a warrant for a person previously

—, my his corresponding revision in policy. See opinion

ow, A. 22.

16

Sheriff’s liability hinges on what he did not do rather

than what he did.

A. Simple negligence alone should not support an action

under 42 U.S.C. § 1983.

If simple negligence does not support a cause of action

under § 1983, all other questions herein are irrelevant. Even

if acts of the deputies are attributed to Sheriff Baker in

the first analysis, it is clear that the confusion of the identi-

ties of Respondent and his brother Leonard could be

characterized, at worst, as simple negligence. Furthermore,

it is clear that if negligence does not state a cause of action

under § 1983, qualified immunity exists as a matter of law."

This Court said in Monroe v. Pape,** that 42 U.S.C.

§ 1983 “should be read against the background of tort liabil-

ity that makes a man responsible for the natural conse-

quences of his actions.” This falls short of stating a common

law negligence standard for asserting claims under § 1983,

particularly when measured against the facts before the

the Court. The Monroe Court was reviewing a dismis-

sal of a complaint alleging an unconstitutional search

and arrest unsupported by a search warrant or an arrest

82 Petitioner has not attempted to deal with the issue of burden

of proof in considering the question of negligence. Nevertheless, if

negligence is not actionable, to suggest that a defendant must

demonstrate non-negligence to support qualified immunity is

inconsistent. The courts have not considered §1983 in this

context. Rather, there has been some indication of a burden on a

Plaintiff to show affirmative acts and affirmative intent with the

Defendant being allowed to defend by showing good faith and that

it was not unreasonable to have formed the good faith belief that

the actions were proper. These standards are not identical to

traditional negligence standards of care or conduct. A holding that

simple negligence was not actionable would not create significant

rechianes with existing standards but would make clear that the

qualified immunity doctrine is not based upon a showing of non-

negligence as construed by the court below.

38 365 U.S. 167, 187 (1961).

17

warrant. The complaint alleged that the defendant police

officers broke into plaintiff’s home, searched the home and

took plaintiff to the police station and detained him without

charges, all without gf benefit of legal process. In making

the above quoted statement, the Court in Monroe v. Pape,

was responding to defendant’s contention that § 1983 re-

quired allegations that defendants had acted with a specific

intent to deprive a person of a federal right.” In the context

of the case, the Court did not do away with a requirement

for intentional conduct, but only the requirement that one

specifically intend to violate a federal right.*°

To date this Court has not clearly stated whether simple

negligence in the form of unintentional acts which directly

or indirectly result in a deprivation of rights, states a cause

of action under 42 U.S.C. § 1983. Recently this issue was

before the Court in Procunier v. Navarette.** The Court

decided the case by determining that the persons charged

were entitled to immunity as a matter of law since the

right involved had not been a recognized federally protected

right. Chief Justice Burger dissented to the Court’s failure

to consider the issue here presented and indicated that he

“would hold that one who does not intend to cause and

does not exhibit deliberate indifference to the risk of caus-

ing the harm that gives rise to the constitutional claim is

not liable for damages under § 1983.”

84 Td.

88 See discussion of Monroe v. Pape in Bonner v. Coughlin, 545

F.2d 565 (7th Cir. 1976) where the court said:

“The Monroe standard dealt with facts showing intentional

conduct by police which they were legally bound to know would

deprive Monroe of Constitutional rights. All that the ‘tort liability’

language of Monroe really establishes is that a specific intent

to violate Constitutional rights of the Plaintiff is nut required for a

Section 1983 violation. . . .” Id. at 567.

36 434 U.S. 555, 55 L.Ed.2d 24 (1978).

87 Jd. 55 L.Ed. 2d at 34.

18

The adoption of the standard advocated by Chief Justice

Burger or a similar standard would also be consistent with

the Court’s stated views in Paul v. Davis,** wherein the

Court decried the use of § 1983 and the due process clause

of the fourteenth amendment as “a font of tort law to be

superimposed on whatever systems may already be ad-

ministered by the states.” °°

That a clearly enunciated standard is needed is demon-

strated by the conflicting decisions arising in the circuit

courts. In the instant case, the court below suggests that

a cause of action can be founded upon mere negligence

which in turn causes, or is likely to cause, errors which will

result in a deprivation of a right. Conversely, the Seventh

Circuit in Bonner v. Coughlin,*® concluded that § 1983 was

not designed to redress cases of simple negligence. In its

discussion of § 1983 the court ctated the following:

“Neither the language of the statute nor its history

shows that Congress was providing a federal remedy

for damages caused by the simple negligence of a state

employee. In enacting the Civil Rights Act, Congress

was obviously intending to provide a deterrent for the

type of conduct proscribed. If an officer’ intentionally

causes a property loss, a remedy under § 1983 might

deter similar misconduct. On the other hand, extending

the § 1983 to cases of simple negligence would not deter

future inadvertence as much as in the case of intentional

or reckless conduct. Consequently the majority of cir-

cuits hold that mere negligence does not state a claim

under § 1983. [Footnote omitted] Otherwise the Fed-

eral courts would be inundated with state tort cases in

the absence of Congressional intent to widen Federal

jurisdiction so drastically.”

88 424 U.S. 693 (1976).

8° Jd. at 701.

545 F.2d 565 (7th Cir. 1976).

"Jd. at 568.

19

Because Congressional intent was not clear, this Court

should speak affirmatively on the issue, leaving Congress

the option of remedying any misstatement of its intent.

The weight of current authority suggests that negligence

should not be the basis for a § 1983 action.‘? Furthermore,

if the Court concludes that Congress did intend § 1983 to

encompass unintentional acts amounting to no more than

simple negligence, the federal courts will be called upon to

review all internal operating procedures of every law en-

forcement agency each time an arrest, confinement or

treatment is questioned to determine whether the defendant

should have used better procedures under the circumstances.

B. A failure to act is not negligence absent knowledge

requiring action.

In the event this Court determines that simple uninten-

tional acts can pose colorable § 1983 claims, the conclusions

of the court below are nevthertheless suspect. The action-

able “conduct” of Petitioner was a failure to act rather than

any affirmative conduct with respect to the Respondent.

Certainly, there are compelling circumstances when a failure

to respond is considered affirmative conduct. Where, as

here, there is no evidence of any circumstance or knowledge

existing at the time of the failure to act indicating a need

for affirmative conduct, the failure to act should have no

factual or legal import.

The Fifth Circuit held as follows:

“The only real question in this case is whether the

Sheriff’s failure to introduce a policy of sending

photographs and fingerprints or his failure to have

someone on duty to check Plaintiff’s identity upon his

arrival or during his stay at Potter County jail was

unreasonable.”’**

*2 See review of authorities in footnote 8 of Bonner v. Coughlin,

545 F.2d at 568.

‘8 Opinion below, A. 21.

ES

20

The court’s frame of reference was the Petitioner’s failure

to make actual comparisons of Respondent with the mug

shots and fingerprints contained in the files when Respon-

dent was picked up in Dallas and delivered to the Potter

County jail. The “evidence” indicating that such a policy

should have been instituted was the occurrence itself and

Sheriff Baker’s subsequent efforts to prevent a recurrence."

If simple negligence is to be actionable under § 1983, then

traditional concepts of tort law should be applied. *° Funda-

mental to a showing of negligence is a finding that the

actor has a duty to act in a prescribed manner. Where the

questioned conduct is affirmative action, simple negligence

may flow from the general duty to act reasonably. Where

the alleged negligent conduct is inaction, one must first

find a duty owed by the nonacting party. Here that duty

would presumably be to use reasonable care to identify

persons named in a warrant for arrest. A breach of duty

minimally requires proof that the method used was

unreasonable.

This proof was missing herein. Rather, the court rested

its conclusion on the premise that the failure to have

a method not used might have been unreasonable, on the

proof that the occurrence happened, and on its observation

that Sheriff Baker instituted a policy to prevent its recur-

rence. Thus the court discerned no evidence, nor was any

presented, to demonstrate that the method of identification

‘' See footnote 31, supra.

‘° Disregarding the special burden borne by a Plaintiff in a § 1983

action, Respondent has not posed a cause of action cognizable

under prevailing common law false imprisonment standards, at

least as applied in Texas. See Workman v. Freeman, 289 S.W.2d

910 (Tex. 1966) and McBeath v. Campbell, 12 S.W.2d 118

(Tex. Comm’n App. 1921, holding approved), which establish

that liability of a Sheriff under these facts is incurred only when

he learns of a wrongful incarceration and does nothing.

21

used at the time of Respondent’s arrest and confinement

was unreasonable or that Sheriff Baker then knew of a

need for a new policy. Without discussing negligence, this

Court has consistently exonerated officials for failing to act

to change or implement policy when they could not be

charged with actual knowledge of the likelihood of the un-

lawful acts at the time of the occurrence. ** Certainly Rizzo

v. Goode," is consistent with this approach.

The rules of evidence preclude the admissability of cor-

rective actions taken after the fact of an injury as evidence

that the occurrence was the result of negligence.’ In ad-

dition to having no logical bearing on the reasonableness

of conduct, allowing subsequent policy adjustments to give

rise to liability for past conduct would discourage officials

from improving policies in response to past errors.‘

See, e.g., Butz v. Economou, U.S. , 57 L.Ed.2d 895

(1978); Procunier v. Navarette, 434 U.S. 555, 55 L.Ed.2d 24 (1978);

a AS Gamble, 429 U.S. 97 (1976); Rizzo v. Goode, 423 U.S.

).

'° 423 U.S. 362 (1976).

'‘ Fed. R. Evid. 407. See also Columbia & Puget Sound R.R. Co.

v. Hawthorne, 144 U.S. 202, 206 (1891) where this Court long

ago _— concerning evidence of changes in machinery after an

accident:

“(Tit is now settled, — much consideration by the decisions

of the highest courts of most of the states in which the question

has arisen, that the evidence is incompetent, because the taking of

such precautions against the future is not to be construed as an

admission of responsibility for the past, has no legitimate

tendency to — that the defendant had been negligent before

the accident happened and is calculated to distract the minds of

the jury from the real issue, and to create a prejudice against

the defendant.”

The Court indicated further that policy reasons dictated such a

rule as well. If the rule were otherwise, the person in authority

would be reluctant to change a policy for fear it would suggest past

error.

‘Columbia & Puget Sound R.R. Co. v. Hawthorne, 144 US.

202, 206 (1891).

22

If the action taken after Respondent was released is not

relevant, the only other evidence of “negligence” at the time

of the event in question would be the event itself. Again,

traditional tort concepts hold that proof of the event is not

itself evidence of negligence’ unless the circumstances

are such to give rise to the doctrine of res ipsa loquitur.”

That doctrine is not available here, however, because Re-

spondent could not and did not demonstrate an inability

to prove the causes in fact of the action.”

The tenuousness of the lower court’s characterization of

unreasonableness of the failure to act is further demon-

strated when the factor of causation is brought into play.

Only by using the “but for” standard of causation may the

Sheriff’s failure be said to have “subjected, or caused to

be subjected” Respondent to a deprivation. It, thus, becomes

apparent that Sheriff Baker is not being called to task for

having an improper policy, “but for” failing to have another

policy which might have prevented injury under the

” Rankin v. Nash-Texas Co., 105 S.W.2d 195, 199 (Tex. Comm'n

App. 1937, opinion adopted), stated the state common law rules as

follows: “The occurrence of an accident, or a collision, is not of

itself evidence of negligence.” See also Gulf Refining Co. v.

Delavan, 203 F.2d 769 (5th Cir. 1953).

‘\ The doctrine of res ipsa loquitur arises only where defendant

has sole control of the instrumentality causing the injury and the

circumstances are such that the event would not ordinarily have

occurred in the absence of negligence. Mobil Chemical Co. v. Bell,

517 S.W.2d 245 (Tex. 1975).

52 In the instant case, the causes, in fact, leading to the event are

known. Further, it is also known that Petitioner did not have

control of all of the factors giving rise to the event. He did not

control Respondent’s brother who used a false identity nor control

the issuance of the warrant. Under these circumstances, the cases

consistently hold that the happening of the event is not evidence of

negligence. See, e.g., Gulf Refining Co. v. Delavan, 203 F.2d 769

(5th Cir. 1953); Mobil Chemi Co. v. Bell, 517 S.W.2d 245

(Tex. 1975); Robinson v. Crump, 422 S.W.2d 536 (Tex Civ. App.—

Houston [14th Dist.] 1967), writ ref’d mre. per curiam, 427

S.W.2d 861 (Tex. 1968).

23

circumstances. If such causation is allowed to support a

cause of action under § 1983, the results will be far more

extensive than merely holding that simple negligence states

a cause of action. For notwithstanding the ultimate good

faith of the actor, the Court must examine what he might

have done to have prevented such occurrence. If a

potentially superior policy is perceived, then the actor will

be deemed to have “caused” the injury because “but for”

his failure to have the alternate policy, the injury would not

have occurred.

This “but for” or indirect causation used by the lower

court is not legal causation under normal tort law applica-

tion. The chain of causation developed at trial included

acts of Respondent’s brother (Leonard McCollan) who

obtained a duplicate of Respondent’s driver’s license with

his (Leonard’s) picture thereon, his act of holding him-

self out as Respondent, the surrender of a bond by

Leonard’s bondsman causing a warrant to be issued for

“Linnie Carl McCollan”, and the ultimate identification of

Respondent as Linnie Carl McCollan, an identity he did

not deny but admitted. Yet the failure to have had a

particular policy created no more than a condition allowing

the event to happen and was not, under general tort law, a

legal cause of the happening."* To suggest that Respondent’s

incarceration was a forseeable consequence of the acts

taken or not taken is unrealistic.

This analysis also makes clear that the Fifth Circuit is

imposing a higher standard of care on the Sheriff than is

associated with simple negligence. The standard is one

°3 One test of whether an act or omission can be considered as

the legal or actionable cause of an injury is whether the injury

is a reasonably forseeable consequence of the act or omission.

Carey v. Pure Distributing tg 124 S.W.2d 847 (Tex. 1939);

Texas & P. Ry Co. v. Bigham, S.W. 162 (Tex. 1896).

iia iil

24

of strict liability in tort and an absolute duty to use the

highest standard of care requiring a Defendant to anticipate

events and circumstances merely because the occurrence

demonstrates that the event could happen.

Petitioner thus submits that simple negligence should not

be the basis of § 1983 claims. In the event this Court con-

cludes otherwise, it should nevertheless reverse the court

below because the facts herein do not, as a matter of law,

support the submission of a negligence issue.

CONCLUSION

For the foregoing reasons, the decision of the court

of appeals should be reversed, affirming the directed ver-

dict granted Petitioner by the district court.

Respectfully submitted,

A. W. SoRE tz ITI,*

P. O. Box 9158,

Amarillo, Texas 79105

Kerry KNorpp, JOHN L. OWEN,

Office of the County Attorney,

Potter County Courthouse,

Amarillo, Texas 79101

Attorneys for Petitioner,

T. L. Baker.

Of Counsel:

UNpbERWoOOD, WILSON, SUTTON,

Berry, STEIN & JOHNSON

P. O. Box 9158

Amarillo, Texas 79105

* Counsel upon whom service is to be made.