Amicus Brief — Baker v. McCollan

FOR ARGUMENI

IN THE MAR 80 1979

Supreme Court of the Vuited) Seatemen, SR_CLERK

Ocroser TERM, 1978 i ———=

No. 78-752 | os

>

T. L. Baker,

Petitioner,

—V.—

Linnig Cart McCo.uan,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE

AMERICAN CIVIL LIBERTIES FOUNDATION OF TEXAS

Of Cowsel:

Avan H. Levine

113 University Place

New York, New York 10003

Harotp C. Hirsuman

Gary 8S. Gripen

Rosert M. Mark

8000 Sears Tower

Chicago, Illinois 60606

Leon F'RiepMAN

Hofstra University

School of Law

Hempstead, New York 11550

Bruce J. Ennis

Cuar.es 8. Sims

GrorGeE KAaNNAR

American Civil Liberties

Union Foundation

22 Kast 40th Street

New York, New York 10016

Attorneys for Amici Cwriae

Page

Table of Authorities \. ss « & 0 te oes

TIntecest Of AAG be ee sk he 8

Statement of the Case ..-c«een ese 38

Introduction and Summary of Argument. 8

ARGUMENT . 2. «ce © ec ec eevee ec © oc bh

I. THE PETITION FOR CERTIORARI

SHOULD BE DISMISSED AS

IMPROVIDENTLY GRANTED. ..... ll

II.

IIt.

shen

TABLE OF CONTENTS

THE FAILURE OF A SUPERVISORY

OFFICIAL TO SUPERVISE HIS

SUBORDINATES WHEN HE HAS A

DUTY TO DO SO CAN SUPPORT

LIABILITY UNDER 42 U.S.C. §1983 .

A. Actual Control and

ee Pe ee

B. Failure to Supervise ....

1. Failure to perform

a statutory duty ....

2. Failure to perform

a duty arising from

actual knowledge ....

3. Failure to establish

reasonably adequate

protective procedures . .

ALTHOUGH IT IS NOT NECESSARY

FOR THE COURT TO REACH THIS POINT

IN THE PARTICULAR CIRCUMSTANCES

OF THIS CASE, SUBJECTING PETI-

TIONER TO PRIMA FACIE LIABILITY

UNDER §1983 BASED ON PROOF OF

NEGLIGENCE WOULD BE CONSISTENT

WITH THE TEXT AND LEGISLATIVE

14

17

18

20

24

26

ot te

HISTORY OF §1983 AND WITH

THE PRIOR DECISIONS OF

TH I Ss COURT . * . . . . . . . 7

A. Congress Did Not Intend

to Incorporate Into §1983

Any Mens Rea Standard

Higher than Ordinary

fe ee ee ee ee

B. The Appropriate Standard

of Care Under §1983

Should be Determined in

Each Case by the Nature of

the Right Infringed and the

Circumstances Surrounding

its Infringement .....

1. No across-the-board

standard can sensibly

be imposed under §1983

2. Applying a negligence

standard in the circum-

stances of this case

would not flood the

t courts with nonessential

SSURGREIOR. 2s & 8 we

C. Rejection of Negligence as

a Basis for §1983 Liability

in This Case Would be Incon-

sistent with the Prior

Holdings of This Court ..

CONCLUS I ON . . . . . . . . . . . . .

34

37

39

43

45

48

-iii-

TABLE OF AUTHORITIES

Page

Cases:

Ashwander v. Tennessee Valley

Authority, 297 U.S. 288 (1936). . . .12

Baskin v..Parker, 588 F.2d 965

(5th Cis. 1979) - . . 7 . . . . . . san

Beverly v. Morris, 470 F.2d 1356

(Sem Cir. iBte) + 2 8 ee Se ee BBgee

Bonner v. Coughlin, 545 F.2d 565

(7th Cir. 1976) (en banc). .... . 14

Bryan v. Jones, 530 F.2d 1210

(5th Cir. 1976) (en banc), cert.

denied, 429 U.S. 865 (1976) ... .7,47

Byrd v. Brisbke, 466 F.2d 6

fyth Cir. 1972) . « « « « «© 0° 2A8,25,46

Carter v. Carlson, 447 F.2d 358

(D.C, Cir. 1971), rev'd sub

nom., District of Columbia v.

Carter, 409 U.S. 418 (1973) . . . 29,30

Dewell v. Lawton, 489 F.2d 877

ob ee Pr

Donaldson v. O'Connor, 422 U.S.

563 (1975). + . . . - 7 . o . 7 . . . 9

Estelle v. Gamble, 439 o.8.: 97

Eo. | ee ee ee a ee a - « 40,41

Harris v. Chancelor, 537 F.2d

SOnk (5Gh Cle. 2976). 66 ke 8 tt ae

-iv-

Page

Johnson v. Duffy, 588 F.2d 740

(Sth Caz. 1976) 2. 2 © © 6 eo 0b 20ras

Monell v. New York City Department

of Social Services, 436 U.S.

GSS {2978}. -<« 2 @ «-« @ « @ 25516,29,22

Monroe v. Pape, 365 U.S. 157

C0) ie eA a een ee ee

Norton v. McKeon, 444 F.Supp. 384

(E.D. Pa. 1977) . . . . . . . . . . 14

Parker v. McKeithen, 488 F.2d 553

(Sth Cir. 1974), cert. denied, 419

O.8. O36 tA50e) «-« 8 ee ee we ee ee

Paul v. Davis, 424 U.S. 693

CASTE). 2 se ete wb Se @ @ dF, 8S, OC

Pierson v. Ray, 386 U.S. 547

05 \) PP ee ee ee ee ee ee

Procunier v. Navarette, 434 U.S.‘

Se? Mae eels 6. bt eee ee 6 ee oe es * OSS

Rescue Army v. Municipal Court,

Se? ice SEO: RROOEE 0. 0. eae 2 wee Oe

Rizzo v. Goode, 423 U.S. 362

SR ae Oh le ee ee: a ee ae

Roberts v. Williams, 456 F.2d 819

(5th Cir. 1972), cert. denied,

Se sts Oe Ceene? « oe « «+ 8 0 + 2a

Screws v. United States, 325 U.S.

oe eeeeey 5) s © o- 6 wae 6 6 © 9 «© 2at

-V=

Sims v. Adams, 537 F.2d 829

(Sth Cites 3900) 64 2 ke bw ee Ce eee

Sullivan v. Little Hunting Park,

396 U.S. 229 (i966) 2. = ow aca oe) « cae

Tuley v. Heyd, 482 F.2d 590

(Sth Cis. 2973) « 6 & ss #16. © am © See

United States ex rel. Larkins v.

Oswald, 510 F.2d 583 (2d Cir. 1975) .22

Whirl v. Kern, 407 F.2d 781 (5th

(Cis. 2060) sik: a arte (a ce ee ee 6 ee

Wood v. Strickland, 420 U.S. 308

(1975). . 7 . .* . . . ‘ . . * . . 39,40

Statutes:

42 U.8.G. $2903. «© « 0 6 6 e 6s 6D

aA Art. 5116 . . . . . . . . . .18

VY ect cous Ars « 6869 . . 7 . . . . . 18,22

fc FP Art. 6870 7 . . 7 . . . . 18,22

Law Review Articles:

Friedman, "The Good Faith Defense in

Constitutional Litigation," 5

Botetra tk. ROV.. SCR Cae7e: 6.0 «2 & ) eee

Kirkpatrick, "Defining a Constitu-

tional Tort Under Section 1983:

The State of Mind Requirement,"

46. U.Cagn.b. BOV. 6S. CAB7T7) s 216.» 088

-vi-

Page

Treatises: In The

SUPREME COURT OF THE UNITED STATES

= ae eee on Torts (4th os October Term, 1978

No. -

Second Restatement of Torts, §35

(1965). . . + . * 7 . . . . . 7. . . .47

T. L. BAKER,

Petitioner,

Vv.

LINNIE CARL McCOLLAN,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

For The Fifth Circuit

BRIEF OF THE AMERICAN CIVIL LIBERTIES UNION

AND THE AMERICAN CIVIL LIBERTIES

: FOUNDATION OF TEXAS, AMICI CURTAE

*

INTEREST OF AMICI

==

The American Civil Liberties Union is

a nationwide, nonpartisan organization of

‘ over 200,000 members. The American Civil Lib-

erties Foundation of Texas is the ACLU's Texas

state affiliate. Both organizations exist

* Letters of consent from all parties to

the filing of this brief have been lodged

with the Clerk of the Court.

=,

solely for the purpose of protecting the

civil rights and liberties of Americans.

Since 1920, one of the constant concerns

of these organizations has been the need

to provide adequate legal mechanisms to

protect against, and remedy, violations

of constitutionally protected rights.

Amici are most concerned about the impor-

tance of protecting citizens' civil rights

and liberties by imposing sanctions against

those state officials who abuse their

office or are indifferent to the rights

of those they are supposed to serve.

Amici have frequently appeared before

this Court in support of the historic role

of 42 U.S.C. §1983 in remedying violations

of federal civil rights, and in deterring

departure from constitutional standards.

We submit this brief amici curiae to urge

the Court to preserve the- role of §1983

in enforcing fidelity to the constitutional

obligations of state officials entrusted

with public power.

oo

STATEMENT OF THE CASE

In October, 1972, aman carrying a

driver's license in the name of "Linnie

Carl McCollan" and identifying himself

as "Linnie Carl McCollan" was arrested in

Amarillo, Potter County, Texas, on a nar-

cotics charge. In fact, the man arrested

was Linnie Carl McCollan's older brother,

Leonard McCollan, and he bore no physical

resemblance to his brother. After Leonard

McCollan's arrest, photographs and finger-

prints were taken of him, and a set of the

photos and fingerprints was routinely

filed with the identification section of

the Potter County Sheriff's Office.

Leonard McCollan was subsequently

released on bail, but was later ordered

re-arrested (A. 41). A warrant was issued

for his re-arrest on November 3, 1972, but

Leonard McCollan was identified in the

arrest warrant as "Linnie Carl McCollan,"

the name on the driver's license.

The real Linnie Carl McCollan, res-

pondent in this action, was stopped for

a minor traffic violation in Dallas, Texas

on December 26, 1972. A routine warrant

check revealed that a "Linnie Carl McCollan"

was wanted in Potter County, and respondent

was therefore taken to the Dallas Police

~

Station. Dallas Police asked the Potter

County Sheriff's Office to send an officer

to collect the man they were holding.

Although the photograph and fingerprints

of the man sought under the warrant were

readily available in the files of the

Potter County Sheriff's Office, the Potter

County Sheriff's deputy who went to Dallas

to pick up the respondent took neither of

them with him (A. 44). Since the respon-

dent was not picked up by the Potter

County deputy sheriff until four days

after the Dallas police had called, the

deputy sheriff had ample time to retrieve

"Linnie Carl McCollan's" photograph and

fingerprints from the Potter County files

before he went to Dallas, but he failed

to do so. Although Linnie Carl McCollan

told both the Dallas Police and the Potter

County sheriff's deputy that he was not

and could not possibly be the "Linnie Carl

McCollan" sought in the warrant because he

had not been in Amarillo for two years

(A. 99), he was nonetheless taken to the

Potter County jail on December 30, 1972.

According to the subsequent testimony

of petitioner Baker, the sheriff of Potter

County at the time of Linnie Carl McCollan's

incarceration, the ordinary policy of the

Potter County Sheriff's Office was to have

Men

the people responsible for the jail check

with the office's identification section

when an arrest was made pursuant to a

warrant to ensure that the right person

had been arrested (A. 45). In Linnie Carl

McCollan's case, however, this routine

check was not made for four days, over a

long holiday weekend, despite his persis-

tent protests. Although the sheriff per-

sonally communicated with and supervised

his deputies over the telephone throughout

that four day period, he did not come to

his office until January 2, 1973. Upon

his arrival, Baker checked the identifica-

tion section file (which had inexplicably

not been checked by his subordinates),

realized instantly from the photographs

contained there that the man in custody

was not the man who had been sought, and

ordered respondent's immediate release

(A. 65).

Respondent sued the Dallas police

officer who arrested him, the Dallas

police chief, and Sheriff Baker and his

surety under 42 U.S.C. §1983, charging

that they had "wilfully, knowingly, and

negligently" deprived him of numerous

constitutional rights through "gross

negligence and reckless disregard" (A. 8-9).

=6-

The Dallas defendants were dismissed from

the suit before trial. At trial, petitioner

Baker admitted that his deputies had failed

to follow departmental policy on verifying

the identities of persons arrested. He

also conceded that, in sheriff's offices

the size of his, when another department

arrests someone pursuant to a locally

issued warrant, "the ordinary thing" would

have been to take the photographs and

fingerprints of the person sought to the

arresting police department to make sure

that the right person had been arrested

(A. 44). Nonetheless, after the close of

the evidence by both parties, the trial

court granted the defendants' motion for

a directed verdict.

The Court of Appeals for the Fifth

Circuit reversed and remanded for a new

trial. Although it held that the deputies'

actions were not attributable to the

sheriff, a ruling which is not at issue

or disputed here, the court held that

"plaintiff was entitled to go to the jury

on the basis of Sheriff Baker's own action

Or inaction." Specifically, the court

said

Sheriff Baker's failure to require

his deputies to transmit the iden-

tification material described above

_

"caused" plaintiff's continued

detention. Plaintiff has made out

a prima facie case under Bryan

[Bryan v. Jones, 530 F.2d

(Sth Cir. 1 (en banc), cert.

denied 429 U.S. 865 (1976)], and

Sheriff Baker can escape liability

only if he acted in reasonable

good faith....[because] [t]he

sheriff himself testified that it

was a standard practice in most

sheriff's departments the size of

his to send...identifying material.

(A. 21-22).

In short, based on the evidence presented

at trial, the court beliéved that a jury

could have found a duty on the sheriff's

part to exercise reasonable care to ensure

that his subordinates promptly checked the

identification of detainees against reason-

ably available records, that Sheriff Baker

breached that duty, and that he caused

respondent to be subjected to a depriva-

tion of liberty.

=8=

INTRODUCTION AND SUMMARY OF ARGUMENT

It is our view that, for the three

reasons set forth in Point I, the writ of

certiorari should be dismissed as improv-

idently granted.

Should the Court decide to hear this |

case nonetheless, it is important to under-

stand what this case does not involve.

First, this case does not involve the §1983

liability of line officers for their negli-

gent or even purposeful acts. Nor does it

involve the vicarious attribution to a

supervisor of the acts or delinquencies of

his subordinates under any version of

respondeat Superior. Most important, this

case does not require a final determination

based upon a completed factual record of

whether a supervisor can be held liable in

a §1983 case, and does not involve the .

applicability or scope of any defenses a

supervisory official may raise. The ques-

tion before the Court is what a plaintiff

must allege and prove in order to make out

a prima facie case under §1983 against a

supervisory official which, if not

rebutted, is sufficient to go to a jury.

Furthermore, the broad question of

what liability standard should be applied

-9-

in a §1983 action is not raised by this

case. Whether "simple negligence," "gross

negligence," or "deliberate indifference,"

must be proven to impose liability under

§1983 is a specific, not a general, question.

The answer to that question will necessarily

vary with the nature of the right infringed

and the circumstances surrounding the

infringement. Defining the scope of the

offended right and the nature of the super-

visor's duty will in each instance effect-

ively define any mental requirement §1983

may require.

The essence of the charge against

Sheriff Baker is that his failure to super-

vise his office deprived the plaintiff of

personal liberty. 2/ Donaldson v. O'Connor,

422 U.S. 563 (1975). A deprivation of

liberty is precisely the kind of depriva-

tion §1983 was designed to redress. Estab-

iishing that the supervisor's breach of his

duty caused the plaintiff's harm would, in

the absence of a legal defense, result in a

finding of liability. Thus, the question

presented here is not whether "mere negli-

1/ Any sheriff should know that liberty is

a constitutionally protected right. In

addition, since Monroe v. Pape, 365 U.S.

167 (1961), it has been clear that an offi-

cial need not have the Specific intent to

violate a constitutional right in order to

be held liable under §1983.

-10-

gence" will support a cause of action under

§1983 in some across-the-board sense. The

questions raised here are whether Sheriff

Baker owed a duty to prisoners to implement

and enforce reasonable supervisory measures

to ensure that their detention was consti-

tutional; whether he breached that duty by

failing to require his subordinates to

check the identification of arrested per-

sons against photographs and fingerprints >

of the person to be arrested that were on

file and readily available in the sheriff's

office; and whether it was foreseeable that

that failure could result in an incorrect

identification and an unconstitutional

deprivation of liberty, such as actually

occurred in respondent's case. If the

answers to those questions are yes, then

respondent alleged and proved a cause of

action under §1983 sufficient, if believed,

and if not rebutted by any affirmative

defense the sheriff might have, to warrant

liability under §1983.

atie

ARGUMENT

I. THE PETITION FOR CERTIORARI

SHOULD BE DISMISSED AS

IMPROVIDENTLY GRANTED.

Certiorari was granted on the assump-

tion that this case raised the question

whether "simple negligence" states a claim

urider 42 U.S.C. §1983. See questions pre-

sented, Baker v. McCollan, No. 78-752, 47

U.S.L.W. 3430. That is an important

question, but it is not raised by the

allegations or facts in this case. It

should not be decided on this record for

three reasons. -

First, the complaint alleges that

petitioner acted "wilfully, knowingly and

negligently" (paragraph 4, emphasis sup-

plied, Appendix at p. 8). The use of the

conjunctive indicates that respondent

intended to prove more than just negli-

gence. Indeed, the complaint explicitly

seeks exemplary damages based on "gross

negligence and reckless disregard" (para-

graph 7 of the Complaint, Appendix, p. 9).

Furthermore, if the jury were to find

"gross negligence" or "reckless disregard,"

as it might on this record, it would not be

ae | . -13-

necessary or appropriate for this Court to

decide in this case whether liability based

on a lesser finding of "mere negligence"

Third, as shown infra in Point

II.B.1, Texas law imposes strict liabil-

ity on sheriffs for the acts of

their deputies, even if the sheriff has

not been negligent in any way. Thus, at

would suffice. Thus, in our view, consid-

eration by the Court of the "simple negli-

" My

OT ee SE. Ashwander least in Texas, it would not be unfair to

v. Tennessee Valley Authority, 297 U.S. subject sheriffs to liability even for

288, 346 (1936) (Brandeis, J., concurring) ; ’ /

"simple negligence," 2 and it is not neces-

See Ss ne epel Comet, 392 0.8. sary or appropriate to decide, in this

549, 568-69 (1947).

case, whether simple negligence would be

Second, the district judge directed

sufficient to state a cause of action

judgment for petitioner "after the close under §1983 in a state that does not

OF SeneEeee aan PORTO PERE, D- subject sheriffs to strict liability.

16, emphasis added). Although the circuit

court assumed that the district judge

directed verdict for petitioner because he

believed respondent failed to make out a

prima facie case (see Appendix at p. 20-21),

it is equally possible that the district

judge believed respondent had made out a

prima facie case, but believed that peti-

tioner had established a good faith defense

as a matter of law. If so, the question of

the proof required to make out a prima

facie case under §1983 would not be raised

2/ 3/ Even a "simple negligence" standard

by this case. would not require Texas sheriffs to do

anything they are not already required

2/ Accordingly, in the alternative, if to do by Texas law, and would not in

certiorari is not dismissed as improvidently any way limit their existing discretion.

granted, the Court should summarily vacate

the decision below and remand for clarifi-

cation of this point.

ade

II. THE FAILURE OF A SUPERVISORY

OFFICIAL TO SUPERVISE HIS SUB-

ORDINATES WHEN HE HAS A DUTY

TO DO SO CAN SUPPORT LIABILITY

UNDER 42 U.S.C. §1983,

The lower federal courts are in dis-

agreement whether the "simple negligence"

of a line officer who inadvertently in-

flicts an injury upon a citizen can support

liability under §1983,—4/ Compare Bonner v.

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

banc) with Whirl v. Kern, 407 F.2d 781

(Sth Cir. 1969) and Norton v. McKeon, 444

F. Supp. 384 (E.D.Pa. 1977). But, as

shown below, the courts agree unanimously

that the failure of a superior to super-

vise his subordinates is actionable

under §1983 where breach of a duty

4/ Calling any of the acts in this case

“simple negligence" is misleading. None

of the acts committed here was "accidental."

The deputies plainly intended to keep

respondent locked in a cell throughout

the period at issue. The question here is

a legal question, not a psychological one,

namely the proper standard of care to

require of jailers and police officers.

=15-

to supervise deprives a citizen of a

federally protected right under circum-

stances making it reasonably foreseeable

that the failure to supervise would cause

the deprivation.

The proper approach in determining

whether supervisory personnel can be held

liable under §1983 for failure to super-

vise their subordinates was outlined in

Monell v. New York City Department of

Social Services, 436 U.S. 658 (1978). The

major holding in that Case was that a

municipality can be sued under §1983 if

"the action that is alleged to be uncon-

stitutional implements or executes a

policy statement, ordinance, regulation or

decision officially adopted and promulgated

by that body's officers." Ibid. at 690.

But Monell also indicated the legal rules

to be applied when an individual super-

visor (as opposed to a governing body) is

sued.2/ In footnote 58 of the Monell

5/ Although petitioner attempts to cloud

e issue by arguing that the subordinates,

and not Sheriff Baker, "were the causes,

in fact, of the deprivation" (Pet.Br. at

3), the inquiry in §1983 cases is concerned

with proximate cause as defined in tort

law, not the layman's concept of "cause

in fact." See Monroe v. Pape, 365 U.S.

167, 182 (1961);

-16-

opinion, the Court said:

By our decision in Rizzo v. Goode,

423 U.S. 362 (1976), we would appear

to have decided that the mere right

to control without any control or

direction being exercized and

without any failure to supervise

is not enough to support §1983

liability. (emphasis added).

This test thus defines the "affirmative

link" between the actions of subordinates

and their supervisors required by Rizzo v.

Goode to establish “causation" for pur-

poses of §1983.6/ The Monell test

6/ In Rizzo, the Mayor, the City Managing

Director, and the Police Commissioner,

were sued because of the actions of indi-

vidual police officers not parties to the

action. The lower court found that the

only "affirmative link" between the higher

officials and the civil rights violations

was the failure to change police disciplin-

ary proceedings in response to ad hoc

incidents and complaints. Rizzo left open

the issue raised by this case - whether

failure to supervise where control is

ordinarily exercised - can lead to §1983

liability. The principal defendants in

Rizzo were not charged with a failure to

supervise. Unlike the Sheriff here,

there was no proof that they had failed to

enforce their own rules, guidelines, or

standard practices, or the practices that

any reasonable individual would undertake

in similar situations. Although "the

behavior of the Philadelphia police was

[not] different in kind or degree from that

(FN continued on next page)

=17=

is satisfied if (1) control or direction

is exercised by a supervising officer and

(2) there is a failure to supervise proxi-

mately causing forseeable harm to a feder-

ally protected right. If these elements are

proven, then failure to supervise can con-

stitute a prima facie case for liability

under §1983.

A. Actual Control And Direction

The Monell test requires, first, that

the defendant have exercised actual control

and direction. This requires something

more than the merely theoretical right to

control. Obviously, in a large police

department like Philadelphia's, the mayor,

city manager or even the police commissioner

does not direct the line officers in

their day-to-day activities. The unknown

actions of policemen on the beat whose

which exists elsewhere,” 423 U.S. at 375,

the sheriff here is charged with conduct

that differs unreasonably from the conduct

that ordinarily prevailed in his depart-

ment, or that prevails in other sheriff's

departments of similar size and locality.

Whether this is true is a question of

fact for a jury, not a question of law

for a court.

-18-

identities the higher officials never knew

(or even should have known) perhaps ought not

be laid on the doorstep of the highest city

officials. By contrast, the defendant in

this action, Sheriff Baker, had direct,

physical day-to-day control over the deputy

who actually inflicted the injury. And as

alleged in the complaint, under Texas law,

the Sheriff had a non-delegable duty to

supervise his deputies, and was personally

responsible for their official acts.

V.A.T.S. Art 6869, Art. 6870 and Art. 5116.

B. Failure To Supervise -

As the Monell test makes clear, even

if the evidence permits a finding of actual

control and direction, there can be no

§1983 supervisory liability without proof

of breach of a duty to supervise. But

liability attends breach of that duty

regardless of whether the breach involved

"doing something" or "doing nothing."

Federal courts applying the test have found

supervisors liable, for example, when a

supervisor, present at the beating of a

prisoner, "does nothing" to prevent at.

Harris v. Chancelor, 537 F.2d 203 (5th

Cir. 1976); Byrd v. Brisbke, 466 F.2d 6

=19=

(7th Cir. 1972) As the Ninth Circuit

said recently in Johnson v. Duffy, 588

F.2d 740, 743 (9th Cir. 1978):

A person “subjects" another to the

deprivation of a constitutional

right, within the meaning of

Section 1983, if he does an affirm-

ative act, participates in another's

affirmative acts, or omits to per-

form an act which he is legally

required to do that causes the

deprivation of which complaint is

made. (emphasis added).

Lower federal courts have consistently

held that supervisors can be held liable

if they "personally participate" in the

act that gave rise to the plaintiff's

injury. But such personal participation

or involvement does not mean that the

supervisor must actually have directed

the conduct. It is enough that he failed

to intervene to stop or prevent a violation

when he had a duty to do so. This duty to

act can arise in at least three different

ways, described below, and two of them are

clearly available to the respondent here

as bases for establishing a prima facie

case against the petitioner.

=20~

1. Failure to perform a statutory

duty

If a supervisor is required by law to

oversee his subordinates and ensure that

they properly obey applicable rules

designed to safeguard the federally

protected rights of those under their

charge, but the supervisor fails to

exercise that control, he will be and

ought to be held liable under §1983. For

example, in Johnson v. Duffy, 588 F. 2d

740 (9th Cir. 1978), the sheriff was

required by California law to set up a

classification committee to run prison

honor camps where an inmate might earn

money while serving his time. The

classification committee alone had the

power to order forfeiture of the inmate's

earnings or his transfer to another regular

prison if he violated rules. An inmate

was accused of violating prison rules by

being late to lunch. He was ordered

transferred by another official and his

earnings were forfeited. However, the

order was not made by the classification

committee pursuant to the California

statutory requirement. The court held that

the sheriff who was required to set up the

<> oo

classification committee and act as its

chairman could be held answerable under

§1983 for his “omission to act in violation

of the duties imposed upon him by statute":

...The requisite causal connection

can be established not only by

some kind of direct personal

participation in the deprivation,

but also by setting in motion a

series of acts by others which the

actor knows or reasonably should

know would cause others to inflict

the constitutional injury.

588 F.2d at 743-44 (emphasis

added).

The Court continued:

Under the California statutes,

together with the regulations

promulgated pursuant thereto, Duffy

was not only required to appoint

the Classification Committee, he

was also Chairman of the Committee

charged with the responsibility of

ordering Johnson's transfer from

honor camp to the county jail.

Duffy himself did not sign a trans-

fer order on behalf of the Committee,

and it is agreed that the Committee

never met. Nothing in the record

even suggests that Duffy could or

did lawfully delegate his duty or

the duty of the Classification Com-

mittee as a whole to act upon

Johnson's transfer. Duffy's omis-

sion to act, in violation of the

duties imposed upon him by statute

and by regulations, thus may subject

him to liability under section 1983.

(emphasis added)

a2 Dn

See also United States ex rel Larkins

v. Oswald, 510 F2d 583 (2d Cir. 1975)

(prima facie case of unlawful confinement

in violation of §1983 made out by proof

of breach of statutorily imposed duty of

prison superintendent to take reasonable

measures to avert unlawful segregative

confinement).

Precisely such a statutory duty is

involved in this case. Texas law speci-

fically requires that "in all cases the

sheriff shall exercise supervision and

control over the jail," thus clearly estab-

lishing Sheriff Baker's statutory respon-

sibility for the circumstances of respon-

dent's incarceration. V.A.T.S. Art. 5116

(b) (emphasis added). In addition, by

establishing a standard of strict liabil-

ity for Sheriffs for the official acts of

their deputies, V.A.T.S. Art. 6870,-/ and

by specifying that deputies are, by law,

agents of the sheriff rather than merely

"employees", V.A.T.S. Art. 6869 ,2/ Texas

7/ V.A.T.S. Art. 6870 provides in relevant

part, "Sheriffs shall be responsible for

the official acts of their deputies..."

8/ V.A.T.S. Art. 6869 provides in relevant

part that deputies "shall have power and

authority to perform all the acts and

duties of their principals."

5 om

already subjects its sheriffs to liability

on the basis of their supervisory action

or inaction in circumstances even less

direct and personal than required by

Mone11.2/ In short, Texas law provides

for a cause of action in tort based on a

breach of a duty to supervise. Indeed, it

goes even further -- by authorizing a

direct action against the sheriff for the

official acts of his deputies. This

establishes a statutory "duty to super-

vise" of the highest possible order.

Y The Court has indicated that, where

state laws better serve the policies of

protecting civil rights, they may be

relied on by federal courts in civil

rights actions. See Sullivan v. Little

Hunting Park, 396 U.S. ’

and 42 U.S.C. § 1988. Thus, the Texas

statutes, if applied by the courts below,

could end this Court's present inquiry.

The Fifth Circuit has adopted the rule

that "the question of a sheriff's

vicarious liability under Section 1983

for acts of his deputy is controlled by

state law," Tuley v. Heyd, 482 F.2d 590,

594 (5th Circ. l ); Baskin v. Parker,

588 F.2d 965, 968 (5th Cir. 1979).

-24-

2. Failure to perform a duty

arising from actual knowledge

A second group of cases concerning

the duty to supervise is relevant to

understanding the nature of a §1983 cause

of action for breach of that duty even

though the same factual basis is admit-

tedly not presented here. In these cases,

the supervisor may have become aware that

the actions of his subordinates, over

whom he exercises direction and control,

have caused or are likely to cause consti-

tutional injuries. If the evidence

demonstrates that the supervisor was or

should have been alerted to the danger, but

nevertheless did nothing to avert it, then

he should be held liable under §1983 if

the foreseeable injury does in fact take

place.

A typical case of this genre is

Roberts v. Williams , 456 F.2d 819 (5th

Cir. 1972) cert. denied, 404 U.S. 866

(1971). There it was held that a super-

visor could be held liable under §1983

for his failure to train and supervise a

prison trusty who shot a prisoner. The

prison trusty's negligence in the use of

,a shotgun was the immediate cause of the

plaintiff prisoner's injury. However,

oS

the court held that the superintendent of

the County Farm, who was responsible for

supervising the trusty system, was also

properly subject to liability under §1983.

The superintendent knew that the trusty

he selected had previously been convicted

of assault with intent to kill. Based on

those facts, the court held that a jury

could quite properly find both direction

and control and breach of a duty to super-

vise which foreseeably and proximately

caused the prisoner's injury. Similarly,

Byrd v. Brishke, supra, involved a civil

rights action filed against several Chicago

policemen for the beating of the plaintiff,

Thomas Byrd, in the backroom of a local

tavern. A verdict for the defendants was

reversed by the Seventh Circuit. In an

opinion by Chief Judge Swygert, the court

held that a §1983 suit could be maintained

against supervisory officers who, though

present, failed to protect the plaintiff.

Under these circumstances, the jury could

have found /breach of a duty to enforce the

laws, preserve the peace, and avert

summary punishment lo/

10/ "We believe it is clear that

aii one who is given the badge of

authority of a police officer

(FN continued on next page)

v

=26<

In Sims v. Adams, 537 F.2d 829 (5th

Cir. 1976), plaintiff sought damages for

injuries caused by a police officer.

Liability was predicated on the failure

of supervisory defendants, including the

Mayor and Chief of Police of Atlanta, to

discipline a police officer whom they

knew to be prone to violent acts. Citing

other cases, such as Roberts v. Williams, supra,

and Beverly v. Morris, supra, Judge Gee

reversed the lower court's dismissal as

to the liability of those supervisory

defendants under §1983.

3. Failure to establish reasonably

adequate protective procedures.

Finally, a supervisor may also be

held liable when he fails to take precau-

tions which he reasonably should have

known were required to protect a citizen's

rights. There may be no specific statutory

may not ignore the duty imposed

by his office and fail to stop

other officers who summarily

punish a third person in his

presence or otherwise within

his knowledge. That responsi-

bility obviously obtains when

the nonfeasor is a supervisory

officer to whose direction mis-

feasor officers are committed."

Byrd v. Bushke, supra, 466 F.2d at ll.

=2%e

duty imposed upon him, and he may not

have specific facts before him to alert

him to the potential for danger to the

citizen. But his failure to take elemen-

tary precautions that others in the same

situation would take could lead to lia-

bility where his own failure proximately

causes a foreseeable deprivation of a

federally protected right.

In Dewell v. Lawson, 489 F.2d 877

(10th Cir. 1974), for example, a case

whose facts approximate those here, the

plaintiff was a diabetic and disappeared

from his home one night. His wife alerted

the Oklahoma City Police Department, which

issued an all-points bulletin for the

plaintiff. In the meantime, he was

arrested on a charge of public drunkenness

by a police officer who mistook the symp-

toms of diabetic reaction for drunkenness.

He remained in jail for four days in a

diabetic coma without medical attention.

Because of his lack of insulin, he suffered

a stroke and brain damage. The police

chief was unaware of the particular problem.

He did not order the arrest, nor did he

know of the search for the missing man.

Nevertheless, the Court of Appeals held he

28a

could be held liable in a §1983 suit for

his failure to supervise and establish

proper procedures:

We hold that the Court erred in

granting Police Chief Lawson's

Motion to Dismiss. On the face

of the Amended Complaint, Dewell

has alleged that Lawson, as Chief

of Police, failed to perform a

duty imposed upon him which

resulted in the deprivation of

Dewell's civil rights, i.e., lack

of proper identification and medi-

cal care constituting cruel and

unusual punishmen: in light of

Dewell's diabetic condition and

subsequent brain damage and physi-

cal impairment by reason of non-

treatment or care during his

confinement. On the record

before us we cannot hold, as a

matter of law, that the Amended

Complaint does not state a cause

of action under 42 U.S.C.A.

§1983. 489 F.2d at 881.

(emphasis added).

There, as here, the "lack of proper

identification" procedures by the person

in charge of the jail led to the viola-

tion of federally protected rights. See

also Parker v. McKeithen, 488 F.2d 553

(Sth Cir. 1974), cert. denied, 419 U.S.

838 (1974). Here, as in Dewell, a jury

‘

could find that the supervisory official

had a duty to enforce identification pro-

cedures which a "reasonable man" in that

=99=

role would have undertaken, and that that

breach proximately caused an unconstitu-

tional deprivation of liberty.

In yet another case, the police chief

of Atlanta was held liable under §1983

for failure to supervise his subordinates.

Beverly v. Morris, 470 F.2d 1356 (5th Cir.

1972). The defendant was sued "on the

theory that Williams was negligent in

failing to train properly the auxiliary

officer, [and] to supervise his patrol

duties...." The court, in a per curiam

opinion, upheld judgment for the plain-

tiff. The judges emphasized that the

case was "not one of vicarious liability

founded on the theory of respondeat

superior, but is instead a claim founded

upon the defendant's own negligence."

Beverly v. Morris, supra at 1357.

The District of Columbia circuit

took a similar approach in Carter v.

Carlson, 447 F.2d 358 (D.C. Cir. 1971);

rev'd on other grounds sub. nom.,

District of Columbia v. Carter, 409 U.S.

418 (1973). Although this Court chose

not to address the issue of liability

for failure to supervise subordinates on

certiorari, see 409 U.S. at 420 n. 3,

=36=

the circuit court had addressed the matter

specifically on appeal:

Even if Captain Prete or Chief

Layton is protected by official

immunity from suit at common law,

‘they are both subject to suit under

§1983 for any negligent breach of

duty that may have caused appellant

to be subjected to a deprivation

of constitutional rights. Indeed,

Mr. Justice Frankfurter maintained

that §1983 was designed for pre-

cisely such a case, i.e., the case

in which the State shields a police

officer from liability for conduct

which would subject a private

citizen to liability.... In par-

ticular, various supervisor

officers have been held subject

to suit under §1983 for negligence

in supervising their subordinates.

447 F.2d at 365. (emphasis added).

In each of the above cases, the super-

visor could be held liable under §1983

because all the elements of that cause

of action were properly alleged or

moved: the official acted under color

of state law, a constitutional or other

federal right was violated, and the super-

visor proximately caused the violation by

his failure to supervise when he had a

duty to do so. The "negligence" of the

supervisors in those cases is far different

_ from the negligence of line officers, for

"several reasons.

=)

First, supervisors have much broader

responsibility, and their acts or omissions

can cause correspondingly broader consti-

tutional injuries. Failure to supervise

subordinates properly may inflict damage

far more widespread than a single officer

could inflict. The failure of a super-

visor to act can geometrically increase

the rate of occurrence of constitutional

injuries .L1/

Second, it is the responsibility of

a supervising official to establish and

enforce general rules and regulations for

those under his command. It is his job

to foresee the implications of those

rules for the citizens whom they affect.

Since he is required to think and act in

these broader terms, he should rightly be

held liable if he fails in that responsi-

bility.

Naturally, on the facts of this case,

this "reasonable person under the circum-

stances" test does not merely mean the

reasonable-man-on-the-street. The standard

-11/ See L. Friedman, "The Good Faith

Defense in Constitutional Litigation,"

5 Hofstra L. Rev. 501, 521 (1977).

a 32a

is more appropriately framed in terms of

the reasonable Texas sheriff. And by this

standard petitioner Baker's conduct is

seriously failing. Not only, as he con-

ceded at trial, did Baker fail to see to

it that his deputies followed the "“ordin-

ary" procedures for sheriff's offices the

size of his; by failing to ensure that his

duputies would follow governing local

standards regarding the identification of

arrested suspects, he also failed to organ-

ize his department to minimize the tort

liability his deputies' actions would auto-

matically impose upon him under Texas law.

See discussion, supra. Texas law thus

affects this case in two ways, both of

which support the conclusion that Sheriff

Baker could be held liable under §1983.

First, as mentioned supra, Texas imposes

a duty to supervise as a matter of law.

In addition, Texas law also serves as

evidence of what a reasonable Texas sheriff

would do. It is plainly unreasonable

for a sheriff to fail to establish

reliable identification procedures in a

state where, since 1846, sheriffs have been

strictly liable for their deputies' acts.

* Mistaken identity is a common law enforce-

=-33-

ment problem, and a Texas sheriff should

be expected to take reasonable steps to

avert it - and to do so before, not

after, an innocent citizen has been

deprived of his liberty for four days.

-34-

Tit. ALTHOUGH IT IS NOT NECESSARY

FOR THE COURT TO REACH THIS

POINT IN THE PARTICULAR CIR-

CUMSTANCES OF THIS CASE,

SUBJECTING PETITIONER TO PRIMA

FACIE LIABILITY UNDER §1983

BASED ON PROOF OF NEGLIGENCE

WOULD BE CONSISTENT WITH THE

TEXT AND LEGISLATIVE HISTORY

OF §1983 AND WITH THE PRIOR

DECISIONS OF THIS COURT.

A. Congress Did Not Intend to Incorpor-

ate Into §1983 Any Mens Rea Standard

Higher Than Ordinary Negligence.

The language of 42 U.S.C. §1983 con-

tains no explicit culpability standard;

and does not expressly require proof of

more than negligence. The legislative

history of §1983 demonstrates that Congress

intended to hold officials liable for

negligent conduct as well as for teckless

and intentional actions.

In its analysis of the legislative

history of §1983 in Monroe v. Pape, supra,

this Court found no intention by the

enacting Congress to limit the reach of the

civil remedies created by §1983 to inten-

tional conduct. In reviewing the Congres-

sional debates preceding passage of §1 of

the Klu Klux Klan Act, the direct ancestor

, of §1983, this Court found the sense of

Congress illustrated by Mr. Lowe of Kansas

|

who said "[w]hile murder is stalking abroad

in disguise...the local administrations have

been found inadequate or unwilling to apply

the proper corrective," (emphasis added),

Monroe, 365 U.S. at 175-76. To a similar

effect is the comment in Monroe, 365 U.S.

at 174, n. 10, that:

The speaker, Mr. Arthur of Kentucky,

had no doubts as to the scope of §1;

"[I]f the sheriff levy an execution,

execute a writ, serve a summons, or

make an arrest, all acting under a

solemn, official oath, though as

pure in duty as a saint and as

immaculate as a seraph, for a mere

error in judgment [he is liable]..."

(emphasis in original).

This Court also recited a statement

during the debates by Mr. Borchard of I1ll-

inois as likewise recognizing the broad

reach of the Act to situations in which

"Secret combinations of men are allowed by

the Executive to band together to deprive

one class of citizens of their legal rights

without proper effort to discover, detect,

and punish the violations of law and order.

Id. at 177 (emphasis added).

x This congressional mood in enacting

Act is summarized in Monroe:

It is abundantly clear that one

reason the legislation was passed

was to afford a federal right in

~36<

gece courts because, by reason

of prejudice, passion, neglect

intolerance or otherwise, state

laws might not be enforced and the

claims of citizens to the enjoy-

ment of rights, priyileges, and

immunities guaranteed by the

Fourteenth Amendment might be

denied by the state agencies.

(emphasis added).

It is thus evident from the legislative

history reviewed in Monroe that Congress

intended to permit injunctive relief and

liability in damages for negligent conduct

as well as for reckless and intentional

conduct, 22/

12/ It is noteworthy that even the dis-

ae eens? by Justice Frankfurter

in Monroe, 2 U.S. at 202-25 a

conduct actionable under Se dns gla

be limited to actions infused by more

culpable mental states. Observing that

the specific intent requirement establish-

ed in Screws v. United States, 325 U.S

91 (1944), was largely a fiction diluted

in practice to mean no more than intent

without justification to bring about the

circumstances which infringe. . . rights,"

Justice Frankfurther concluded:

If the courts are to enforce

[§1983], it is an unhappy form of

judicial disapproval to surround

it with doctrines which partially

and unequally obstruct its opera-

tion... Petitioner's allegations

that respondents in fact did the

acts which constituted violations

(footnote continued on next page)

=37=

B. The Appropriate Standard of Care

Under §1983 Should be Determined

in Each Case by the Nature of the

Right Infringed and the Circum-

Stances Surrounding Its Infringe-

ment.

Although it is clear that §1983 was

not enacted to create a general federal

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

this Court has nonetheless repeatedly held

that §1983 "should be read against the

background of tort liability that makes a

man responsible for... his:actions." Monroe

v. Pape, 365 U.S. at 182. See also Pierson

v. Ray, 386 U.S. 547, 556-7 (1967). Under

of constitutional rights are

sufficient." Monroe, 365 U.S.

at 207-208.

Incorporation of any general standard

higher than ordinary negligence which

would prevent courts from ordering in-

junctive or declaratory relief in §1983

cases would clearly violate congressional

intent. Perhaps, for this reason, the

court has created defenses* to damage

actions based on innocent mental states,

without making such mental states rele-

vant to the granting of injunctive relief.

Accordingly, even if the Court were to

rule that negligence would not state a

cause of action for damages in §1983, it

should not rule that negligence will not

state a cause of action in cases seeking

declaratory and injunctive relief.

= 38-

ordinary tort law, a plaintiff cannot

succeed unless there is a foreseeable

risk of injury to him as a result of

defendant's breach of a duty he owes the

plaintifs. =>’ To support a course of

action under §1983, that risk must be to

a constitutional right foreseeably affected

by the defendant's action or inaction, and

the duty must stem from the defendant's

status as an official acting under color

of state law. A careful reading of §1983

"against the background of tort liability"

leads to two conclusions: (1) no across-

the-board standard of care requirement

can sensibly be imposed upon the numerous

civil rights §1983 is designed to protect,

and (2) there is no danger that holding

negligence to be a sufficient standard in

this case will flood the federal courts

with nonessential litigation.

13/ Prosser has written: "In negligence,

the actor does not desire to bring about

the consequences which follow, nor does he

know that they are substantially certain

to occur, or believe that they will. There

is merely a risk of such consequences,

sufficiently great to lead a reasonable

man in his position to anticipate them,

and to guard against them." Prosser,

Hornbook on Torts, (4th ed. 1971) (here-

' after "Prosser on Torts"), at 145.

w=

1. No across-the-board standard —

can sensibly be imposed on all

actions brought under §1983.

In developing the doctrine of quali-

fied immunity and the good faith defense,

this Court has consistently measured a

defendant's actions against the standard

of reasonableness. See Wood v. Strickland,

420 U.S. 308 (1975); Procunier v. Navarette,

434 U.S. 555 (1978); Pierson v. Ray, supra.

But those doctrines make no sense unless

negligence is indeed a standard for liabil-

ity, at least so far as certain constitu-

tional torts cognizable under §1983 are

concerned. For those defendants as to whan

plaintiffs make out a case of malicious

violation, or reckless disregard, or gross

neglect of constitutional rights, the good

faith defense will by definition be unavail-

ing because those defendants will be unable

to satisfy either the subjective or the

objective element of the good faith defense 14/

14/ In the leading exposition of the good

fadth defense, this Court held that a school

board member "is immune from liability

for damages under §1983 if he knew or reason-

ably should have known that the action he

took within his sphere of official respon-

sibility would violate the constitutional

rights of the student affected, or if he

took the action with the malicious inten-

(footnote continued on next page)

-40-

The only officials who could be absolved

from liability by the good faith defense

are those against whom plaintiffs have made

out no more than a case of negligence. If

plaintiff has proven malice, he has dis-

proven subjective good faith; if he has

proven gross or reckless disregard, he has

disproven objective reasonableness. But if

only negligence has been proven against an

official, a good faith defense may relieve

him from liability.

This is not to say that negligence

would be a proper standard for liability

for deprivation of all constitutional rights.

Some constitutional rights are defined in

terms of a particular mental component.

For example, the Eighth Amendment's pro-

tection against "cruel and unusual" punish-

ment implies by its terms that a certain

mental state is a prerequisite to its vio-

lation. Consequently, in Estelle v. Gamble,

429 U.S. 97 (1976), the "infliction of

unnecessary suffering" upon prisoners by

tion to cause a deprivation of constitu-

tional rights or other injury to the

student." Wood v. Strickland, 420 U.S. at

322. Only if the official had a subjective

good faith belief in the reasonableness of

, his actions, and if that belief was reason-

able, will the defense prevail.

-41-

denial of medical care was held to amount

to a violation of the Eighth Amendment,

cognizable under §1983, only where such

pain was inflicted through "deliberate

indifference" to serious medical needs of

prisoners. 429 U.S. at 104. But the

text of the Fourth Amendment establishes

a right to be free from unreasonable

searches and seizures, not just from

malicious or reckless ones. Consequently,

this Court has held that in a §1983 action

alleging illegal arrest, a plaintiff can

get his case to a jury by simply showing

that the official's conduct was objectively

unreasonable, and not legally excused. See

Monroe v. Pape, supra, and Pierson v. Ray,

supra. Respondent's injury here clearly

involves the values of personal autonomy

15/ This court noted:

..-a complaint that a physician

has been negligent in diagnosing

or treating a medical condition

does not state a claim under the

Eighth Amendment. Medical mal-

practice does not become a con-

stitutional violation merely

because the victim is a prisoner.

In order to state a cognizable

claim, a prisoner must allege

acts or omissions sufficiently

harmful to evidence deliberate

indifference to serious medical

needs. 429 U.S. at 106.

a42e

and freedom from government intrusion pro-

tected by the Fourth Amendment.16/ If there

is any conclusion to be drawn from the text

of the Constitution regarding the standard

of care implicit in §1983 actions, it is

that the Eighth Amendment is peculiar and

unique. Just as the text and legislative

history of §1983 fail to support the con-

clusion that "negligence" should be cate-

gorically rejyected as an appropriate

standard of care to be imposed on state

officers under §1983, so does the text of

the Constitution discredit the notion that

any one standard of care will suffice.

Since this Court held in Monroe v.

Pape that an official need not have a

specific intent to violate a citizen's

constitutional rights in order to’ be held

liable under §1983, the state and lower

federal courts have had to scrutinize each

fact situation presented to them to see

whether, on the whole, the official had

met the duty of care imposed by the Con-

16/ Indeed, this deprivation of liberty

was total, and therefore invokes all the

rights incorporated into the Fourteenth

Amendment, many of which have no mens rea

component. See generally Kirkpatrick,

"Defining a Constitutional Tort Under

Section 1983: The State of Mind Require-

ment," 46 U. Cinn. L. Rev. 45 (1977).

«430

stitution on public officials. These

courts have followed the common law in

gradually evolving standards of care for

the protection of constitutional rights

on which both the citizen and the official

may rely. In every case, the courts must

ask (1) whether an injury was foreseeable

to the plaintiff or people in the same

class or situation as the plaintiff;

(2) whether the possible injury to the

plaintiff was one that foreseeably affected

his constitutional rights, as opposed to

some other personal interest; and (3) whether

the constitutional violation at issue re-

quired a particular mental component on the

part of the state officials involved.

2. Applying a negligence standard

in the circumstances of this

case would not flood the courts

with nonessential litigation.

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

this Court expressed its concern that if

all injuries inflicted by a state official

were deemed constitutional violations, the

federal courts would be overwhelmed with

cases that ought to be tried as state law

torts. However, the Court did not then and

should not now react to that concern by

holding that negligent violations of civil

aihe

rights by state officials can never suffice

to state a cause of action under 42 U.S.C.

§1983. As illustrated above, there is no

support in the text or legislative history

of §1983, the Constitution, the prior hold-

ings of this Court, or sound policy for

such a holding. Moreover, although a per

se rule against "negligence" actions

brought under §1983 might seem a convenient

means of keeping state court tort actions

out of federal courts, the proper applica-

tion of existing principles of §1983 juris-

prudence will necessarily have the same

effect.

First, Paul v. Davis itself illustrates

how the requirement that the plaintiff be

deprived of a federally protected right

avoids a wholesale conversion of tort

actions into §1983 claims. In Paul, the

court inquired whether plaintiff had been

deprived of a federally protected right, as

§1983 expressly réquires, and found that

he had not. :

Second, as illustrated supra, focus-

sing properly on §1983's requirement that

the deprivation take place "under color of

state law" will also limit §1983 to its

_ intended purpose, and will exclude from

federal jurisdiction those tort cases

a45=

that should properly be litigated only in

state courts. The fact that the offender

is a state official does not automatically

establish that his acts are necessarily

committed "under color of state law." As

the court said in Monroe v. Pape:

The essential element of this

type of §1983 action is abuse

of his official position.

365 U.S. at 172 (emphasis added).

Finally, careful attention to, and

development of, the existing requirement

that the risk of injury to a federally

protected right be reasonably foreseeable

will preclude litigation under §1983 of

general state tort law claims, without the

necessity of developing a new standard of

prima facie liability which would require

assessment of a public official's subjec-

tive mental state.

C. Rejection of Negligence as a Basis

for §1983 Liability in This Case

Would be Inconsistent With the

Prior Holdings of This Court.

In Pierson v. Ray, 386 U.S. at 556-7,

this Court reiterated the principle, first

articulated in Monroe v. Pape, supra, that

§1983 should be read against the background

-46-

of tort liability, and held that part of that

background in the case of police officers making

an arrest is the defense of good faith and probable

cause. Because the defense of good faith and prob-

able cause was available to police officers in

common law actions for false arrest, the

same defense was held to be available to

them in §1983 actions based on false arrest.

Just as the court in Pierson looked to

common law tort doctrine to determine

what defenses should properly be available

to police officers in §1983 actions, so it

ought now to look to the common law to

determine what degree of culpability, if

any, is necessary to make out a prima

facie case under §1983 based on false

imprisonment.

At common law, a plaintiff is not

required to prove any degree of unreason-

ableness concerning the defendant's gonduct in

order to establish a prima facie case for

the common law tort of false imprisonment.

Questions concerning the defendant's

mental state are left for the defendant mm

to prove. The only elements necessary to

state a prima facie case of false inprison-

ment at common law are: (1) intent to

confine, (2) acts resulting in confinement,

and (3) consciousness of the victim of con-

my)

finement or resulting harm. Restatement,

Second, Torts §35 (1965); Bryan v. Jones,

530 F.2d 1210 (5th Cir.) (en banc), cert.

denied 429 U.S. 865 (1975). Thus, at

common law, not only was negligence action-

able; a prima facie case against a state

official could be made out for even non-

negligent false imprisonment. To require

a plaintiff in a §1983 action arising out

of false imprisonment to prove that a

defendant acted with a greater degree of

culpability than negligence would be an

unwarranted deviation from the common law.

Worse, it would create the anomalous result

that constitutional and other federally

protected civil rights receive less legal

protection than non-constitutional personal

and property interests which are protected

by state tort law. Consequently, a proper

comparison of this action to the "back-

ground of tort liability," as required by

this Court, confirms that this respondent

needed to establish no more than negligence

to make out his prima facie case.

~4G-

CONC'LUS ION

For the reasons set forth in Point I,

the writ of certiorari should be dismissed

as improvidently granted. In the alterna-

tive, for the reasons set forth in Points

II and III, the judgment below should be

affirmed, and the case remanded for a new

trial.

Respectfully submitted,

LEON FRIEDMAN

Hofstra University

School of Law

Hempstead, New York 11550

BRUCE J. ENNIS

CHARLES S. SIMS

GEORGE KANNAR

c/o American Civil Liber-

ties Union Foundation

22 East 40th Street

New York, New York 10016

Of Counsel: Counsel for Amici Curiae*

Alan H. Levine

Harold C. Hirshman

Gary S. Gilden

Robert M. Mark

* Counsel would like to acknowledge the

assistance of John Zebrowski, a third-year

law student at Hofstra University School

of Law, in the preparation of this brief.

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