Opposition — Whitman v. Ford

Buprome Court, U. i"

) FILED

FEB @ 1980

| Wloringt. Fe

IN THE

SUPREME COURT OF THE UNITED STATES

NO. 79-775

ARVIS E. WHITMAN, SHERIFF,

BIENVILLE PARISH,

Applicant

versus

MACK W. FORD,

Respondent

BRIEF OF RESPONDENT IN OPPOSITION TO

GRANTING OF WRIT OF CERTIORARI

REQUESTED BY APPLICANT

GRAVEL, ROY & BURNES

DEE D. DRELL

711 Washington Street

Post Office Box 1792

Alexandria, LA 71301

(318) 487-4501

Attorney for Mack Ford,

Respondent

|

IN THE

SUPREME COURT OF THE UNITED STATES

NO. 79-775

ARVIS E. WHITMAN, SHERIFF,

BIENVILLE PARISH,

Applicant

versus

MACK W. FORD,

Respondent

BRIEF OF RESPONDENT IN OPPOSITION TO

GRANTING OF WRIT OF CERTIORARI

| REQUESTED BY APPLICANT

GRAVEL, ROY & BURNES

DEE D. DRELL

711 Washington Street

Post Office Box 1792

Alexandria, LA 71301

(318) 487-4501

Attorney for Mack Ford,

Respondent

[29:32

Page

Table of Authorities «. . 9: «> eo ae

Stetenent of DOG 625 68 Sw ee eee ee

Statement of the Case ...s-e ee es 6

Summary of the Argument ....4e+e+ « 39

Argument

I. Color of Law sad Liability .: %

Il. Daemeges « . ae soe ae 8

Conclwetem <.°s « s & é- ate oe eS

Certificate of Servie® « «+s *« Se Oe

ii

Page

CITATIONS

Adickes v. S. H. Kress & Co.,

398 U.S. 144, 90 &.Ct.. 1396,

26 L.84.28 2462 ti97O)< + Se Se eee

Baggett v. Richardson,

473 F.2d 863 (Sth Cir., 1973)... 9

Baldwin v. Morgan,

231 F.2d 780 (Sth Cift., 1958). .. &

Caplin v. Oak,

356 F.Supp. 1250 (S.D.N.Y. 1973) . 16

District of Columbia v. Carter,

409 U.S. 418, 93 3.06. OUZ,

34 £.Bd.8@ OLS CER eee lat es alee 4

Fagot v. Ciravola,

445 F.Supp. 342 (E.D.La. 1978) . 9,11

Gill v. Manuel,

488 F.2d 799 (9th Cir., 1973) eee

Guzman v. Western State Bank of

Devils Lake,

540 F.2d 946 (Sth Cit... i976). « « 8

James v. Lusby,

499 F.2d 466 (D.C. Cit.5 29792. « 39

Lee v. Southern Home Sites Corp.,

429 F.2d 290 (Sth Cir., i970). .13,43

— =

iii

slich v. Garnier,

lis So.2d 95 (La. App. lst

CES cS Dee e ce eee Cae BON aol ae

-ansell v. Saunders,

Bia FF. 26 sia {ote Cie., t967) «. . .

‘onroe v. Pape,

,. -

tw

365 U.S. 167, 81 S.Ct. 473,

> 2.26.26 S92. 41960). . . 5 2 e odes

York Times Go. v. Sullivan,

- .

oe ge *

376 U.S. 254, 84 S.Ct. 710,

LE 3. RO. Ee BOG CiPGR) 6 as eee ew, 8

tchard v. Perry,

507 F.24 4235 (4th Cita, 19735) . .14,15

Ruberts v. Acres,

Roe Fsae SF GFEN Civ. ,g TFTA} 6 sce 8

Screws v. United States,

325 -Us os Bhs Oe Bae. 1031,

te we ek ee) Ree

Cormier,

oaG: 361 410th Cir... 2970)... . a

tr

wn

A1<

Spence v. Staras,

S07 F.26 3o8 (7th Cir... Lora) « « + £8

Stolberg v. Members of the Board of

‘rustees for State Colleges of

Connecticut,

474 F260 663: (2ne Cir... PRPS) « « - BS

~

iv

Suilivan v. Little Hunting Park,

296 U.S. 229, 90 S.Ct. 400,

24 L.Ed.2d 325 (1969)

STATUTES

2 U.8.0.A..§L9GL = s ss

62 U.$.C.a. §1962

42 U.$.€.Aa. §139863

42 U.S.C.A. §1988

Page

IN THE

SUPREME COURT OF THE UNITED STATES

KO. 79-775

ARVIS E. WHITMAN, SHERIFF,

BIENVILLE PARISH,

Applicant

Vv.

MACK W. FORD,

Respondent

BRIEF OF RESPONDENT IN OPPOSITION TO

GRANTING OF WRIT OF CERTIORARI

REQUESTED BY APPLICANT

STATEMENT OF ISSUES

PRESENTED FOR REVIEW

1. Whether the District Court committed

error in finding a violation of the Civil

Rights Acts, and specifically 42 U.S.C.A.

§1983, et seq.

2. Whether the District Court erred in

awarding damages, punitive or otherwise,

plus attorneys fees and court costs.

STATEMENT OF THE CASE

This action was a suit for punitive

aw, and, therefore, whether the damages

and compensatory damages, plus attorneys i ’

Fees, for violations of plaintiff-respon- avarded were proper under these circum-

dent's civil rights on December 22, 1975, Stances.

arising specifically from a beating suf-

fered by plaintiff-respondent at the hands

of defendant-applicant in his capacity as SUMMARY OF THE ARGUMENT

Sheriff of Bienville Parish, Louisiana.

Suit was filed on November 11, 1976, and : L. As to Whitman's assertion that the

plaintiff's complaint was allowed amended beating was a personal matter and not under

on September 12, 1977, to conform to the color of law, respondent, Ford, shows that

evidence and to pray for attorneys fees as adplicant's assertions in this regard are

part of the costs of the action. After in error and are in conflict with classic

normal, appropriate, pre-trial proceedings, and well-settled areas of civil rights law.

trial was held before the Honorable Tom Analyzing the facts, and findings as made

Stagg, District Judge, on November 14, 1977. by the District Judge, it is clear that the

: After hearing the evidence, and after giving "color of law" requirements are met in the

oral reasons therefor. Judge Stagg found case at bar.

for plaintiff, Reverend Mack Ford, and

against Arvis Whitman, awarding $4,000.00 ‘ £3 As to Whitman's assertion that the

as damages plus a reasonable attorneys fee District Judge erred in awarding punitive

and all costs. On October 23, 1978, Judge damages to Mack Ford, this, too, is in

Stagg fixed the award of attorneys fees at error and in clear conflict with settled

$2,000.00 plus expenses of $600.26. An law.

appeal ensued, and by opinion dated August

14, 1979, the trial court's decision was 3. As to Whitman's assertion that

affirmed. punitive damages were not appropriate on

the facts of this case, respondent suggests

As noted in the application of Whitman, that if, indeed, this case is an inappro-

there is agreement as to plaintiff's priate one for an award of punitive damages,

arrest on December 22, 1975, his release on then, indeed, the intent and spirit of the

bond his return to the Sheriff's office as Civil Rights Acts are violated. It is

directed by members of the Sheriff's suggested that applicant's argument here,

department, and the beating which plaintiff too, flies in the face of established and

suffered in the Sheriff's office. The sole settled jurisprudence.

factual issue before this court relating to

liability is that of whether the beating

administered by Whitman was a mere personal

matter or whether it was done under color of

ARGUMENT

I. "COLOR OF LAW" AND LIABILITY

At the outset, respondent suggests that

the briefness of the text of applicant's

application in this court points to the

overall weakness of his arguments in the

case at bar. Applicant has sought to

allege throughout this matter, and even in

the trial court, that the events between

Ford and Whitman on December 22, 1975, were

merely personal. On this basis, Whitman

seeks to slip out from under the umbrella

of protection provided for Reverend Ford

by way of the Civil Rights Acts, and par-

ticularly 42 U.S.C.A. §1983. Yet this

logic and its after-the-fact assertion

flies directly in the face of the over-

whelming weight of evidence presented at

trial. Respondent, Ford, concedes that the

ambit of protection in the Civil Rights

Acts does not apply to everyone, but rather

only applies to those acting "under color

of law". Applicant, in citing the Carter

case (Application, p.16) suggests that,

indeed, purely private conduct is outside

of the protection. As a point of law this

is generally correct. However, it is to be

pointed out that the Carter case stated

this only in dicta since the principal

issue there was whether §1983 applied as

to the District of Columbia. This Honorable

Court does note in the opinion that gener-

ally the "Fourteenth Amendment itself

erects no shield against merely private

conduct however discriminatory or wrongful,'

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

!

418 at 423, 93 S.Ct. 602 at 606, 34 L.

Ed.2d 613 (1973). Likewise, the court

concludes, §1983 is limited in a similar

fashion. In discussing the Fourteenth

Amendment limitations, the court cites

prior actions, (93 S.Ct. at 606, herein

omitted) which discuss the nature of private

conduct which has been deemed to be outside

of the Amendment's protection. Yet even a

cursory analysis of the Carter case and the

cases cited therein reflects no factual

situation similar to the case at bar.

Where, in the cases cited in Carter, no

liability (or Civil Rights jurisdiction) was

found, the persons involved were indeed

private individuals, and not, as here,

public officials acting within the confines

and scope of their offices.

In effect, then, applicant, Whitman,

without saying so, has sought to allege

that Sheriff Whitman did not act under

color of law as he abused Reverend Ford.

As summarized by the Seventh Circuit in

Roberts v. Acres, 495 F.2d 57 (7th Cir.,

1974), the "color of law" requirements of

the Civil Rights Acts are as follows:

[Flor an individual's conduct is

engaged in under color of state

law if clothed with the authority

of the state and purporting to

act thereunder, whether or not

the conduct complained of was

authorized or, indeed, even if

it was proscribed by state law.

(Citing Monroe v. Pape, 365 U.S.

eee eee ME et. 4735. 5 L.

Ed.2d 492 (1960); Screws v.

United States, 325 U.S. $1,

lili. 659 8.Ct. 1031, 89 Lite.

49 (1946).

Put another way:

[M]isuse of power, possessed

by virtue of state law and

made possible only because the

wrongdoer is clothed with the

authority of state law is

action taken ‘under color of'

state law. Monroe v. Pape,

363 U.S. ao€¢ £84, Bi Bvee. wt

482; see also Baldwin v.

Morgan, 251 F.2d 780 (5th

Citic 2PO8?%

Analyzing the facts of the case at bar,

as elicited during trial, the following

indicia make it clear that, indeed, Sheriff

Whitman acted “under color of" state law

when he struck Reverend Ford. [The follow-

ing references are to pagination in the

appendix]. At App. 78, on cross-examination

Sheriff Whitman admitted that, on the

evening in question, he was in his office

at the Bienville Parish, Louisiana, Court-

house. He was in his sheriff's uniform.

He personally took the action to have

Reverend Ford recalled to the courthouse

for a bond fixing. He met Reverend Ford

in the hallway (App. 79) and told (App. 81)

Reverend Ford to enter the Sheriff's private

office. Acceding to the Sheriff's recog-

nized and ostensible authority, Reverend

Ford did so. (App. 81, 97). At this

point, it is important to note that the

sole reason Sheriff Whitman gave at trial

for needing to see Reverend Ford was his

anger over a comment allegedly made to

ex-defendant Andy Tolbert during Sheriff

Whitman's prior election campaign. In

fact, the evidence reflects that Reverend

Ford was a supporter of Sheriff Whitman's

opponent in that election. (App. 81-83,

99). Once again, Reverend Ford admitted

at trial that he had opposed Sheriff

Whitman in that election and, more impor-

tantly, that at least in part his cpposi-

tion was based upon his belief in certain

misconduct of Sheriff Whitman's. (App.

102). Reverend Ford did not resist (App.

90) but, rather, showed the respect he

should show for authority (App. 104-105).

Finally, Reverend Ford confirmed that he

considered the matter official because of

the incidents of Sheriff Whitman's office

as seen through Reverend Ford's eyes on

that night (App. 130-131). Rhetorically

it may be added, "Need more be said?"

Yet, despite all of these strengths,

Sheriff Whitman still seeks to find sanc-

tuary in his allegation of "purely private"

conduct. It is respectfully submitted

that, in view of Sheriff Whitman's admitted

and ostensible official conduct, he clearly

acted under color of state law as he

maliciously and deliberately struck

Reverend Ford. His conduct indeed borders

on attempted intimidation since the brunt

of Sheriff Whitman's objections on that

night were aimed at the cessation of what

must be considered as fair political

+o

this regard, Exhibit P-l is important

caus2 it provides the basis--a fair

sis--for that political comment in the

ciic arena. So, too, in this case is

je necessity for protection of open ideas

and free speech to be protected within the

ambit of Federal Civil Rights. See New

York Times Co. v. Sullivan, 376 U.S. 254,

84 S$.Ct. 710, 11 L.Ed.2d 686 (1964).

ce ©

So oe oo +m

rc

As amoly set forth in Monroe v. Pape,

supra, the federal courts sit as a watch-

dog over the civil rights of individuals

at the hands of state officials. His Honor,

Judge Stagg, affirmed that principle in his

reasons for judgment. He made specific

factual findings and found sufficient

indicia in the evidence to conclude that

Sheriff Whitman acted under color of state

law. When all of the foregoing argument

is analyzed, only one simple phrase can

properly sum up the conclusions he reached

and the judgment he rendered--he was right.

Il. DAMAGES

Although broken down into sub-issues,

the issues relating to damages may be

properly treated together for purposes of

argument.

Applicant, Whitman. in brief, sets

forth his third issue as "The District

Court erred in awarding what amounts to

punitive damages." Yet, in argument at

p.24, avplicant concedes that punitive

camages may indeed be awarded in appro-

rriate cases,

Even a most cursory review of the

Federal jurisprudence can leave no doubt

tat, indeed, both compensatory and puni-

cive damages are recoverable under the

Civil Rights Acts of 1871 and, particularly,

under 42 U.S.C., Sections 1981, 1982, 1983

and 1988. Nevertheless, applicant's

pesition is that punitive damages would

rot be allowable in this case even if his

~iability under the Civil Rights Acts were

é€stablished at trial. It must be surmised

that the only possible basis for defendant's

position is in the old adage that punitive

c- exemplary damages are not allowed in

Louisiana in civil cases. See, for example,

Eaegegett v. Richardson, 473 F.2d 863 (5th

Cir., 1973). But compare Loeblich v.

Garnier, 113 So.2d 95 (La. App. lst Cir.,

1959) at 103. It is particularly interest-

ing that applicant cites to this court a

case dating from 1917 to support his posi-

tion, thus ignoring a quite large expansion

o= the jurisprudence since that time! See

Figot v. Ciravola, 445 F.Supp. 342 (E.D.

LA 1978). (Allowing of punitive damages

against a defendant police department in

Louisiana.) Applicant unfortunately

everlooks a uniform federal interpretation

waich has been given to the Civil Rights

acts at issue in this case.

In Adickes v. S. H. Kress & Co., 398

Cre. PSA, Be 8. Gt. hove, £26 Liebe. 28 142

(1970), Justice Brennan well stated in his

concurring opinion the scope of protection

10

provided by 42 U.S.C. §1983 as follows:

Section 1983 in effect

authorizes the federal courts

to protect rights 'secured by

the Constitution and laws'

by invoking any of the

remedies known to the arsenal

of the law. Standards

governing the granting of

relief under §1983 are to be

developed by the federal

courts in accordance with

the purposes of the statute

and as a matter of federal

common law (citations omitted).

Of course, where justice

requires it, federal district

courts are duty-bound to

enrich the jurisprudence of

§1983 by looking to the

remedies provided by the States

wherein they sit. 42 U.S.C.

§1983. But resort to state

law as such should be had only

in cases where for some reason

federal remedial law is not

and cannot be made adequate to

carry out the purposes of the

Statute. aoe U.8.- at. 253i,

90 S.Ct. at 1641.

Likewise, the United States Fifth Circuit

Court of Appeals has succinctly stated:

It [42 U.S.C. §1983] also

permits damages including

punitive damages, Mansell v.

|

Saunders, 372 F.2d 573

(Sth Cis.» 2967) at 279.

Compare Silver v. Cormier, 529 F.2d 161

(.:C¢th Cir., 1976) at 163 and cases cited

icrein.

And, finally, combining §1983 with

§1988 of the same title, the rule is to

simply apply both federal and state rules

on damages, “whichever better served the

policies expressed in the federal statutues,"

Sullivan v. Little Hunting Park, 396 U.S.

229 ac 240, 90 S.Cr. 400 at 406, 24 L.

Ed.2d 325 (1969). Sullivan further provides

trat the rule of damages, including com-

pensatory damages, regardless of source,

is a federal rule to respond to the need

when a federal rule is impaired. Even in

the decisional law in the courts of the

United States in Louisiana this is now

clear (Fagot v. Ciravola, supra). It is

suggested that in this case as well, the

federal rule of punitive damages was pro-

perly invoked to protect those rights of

respondent intended to be protected

tirough the very existence of the Civil

Rights Acts.

Assuming, therefore, that punitive

damages are authorized in a §1983 action

generally (and in Louisiana), some atten-

tion to the application of the rules of

damages generally is in order. At the

outset,

Compensatory damages awardable

in a §1983 case are not limited

12

to the out-of-the-pocket

pecuniary loss the plaintiffs

suffered. They can be

awarded for emotional and

mental distress even though

no actual damages are proven.

(citations omitted)

Punitive damages may also be

awarded in civil rights

actions where the defendant

exhibits oppression, malice,

13

nm the same vein of jealously protect-

ics the federally created rights involved

i ivil rights actions, federal law is

czened to permit an award of punitive

cimaces even though there is an absence of

‘cuai loss to the plaintiff, Spence v.

-reras, 507 F.2d 554 (7th Cir., 1974) at

Finally, as stated in Lee v. Southern

Sites Corporation, 429 F.2d 290 (5th

1970), and reiterated in Gill v.

uel, 488 F.2d 799 (9th Cir., 1973) at

\stet

3 oO

@ -

J

™Z Olm tals e

(u e119

“13 mt

gross negligence, willful Sul

or wanton misconduct, or

a reckless disregard for the The allowance of such damages

civil rights of the plaintiff {referring to punitive

(citations omitted), Guzman damages] inherently involves

v. Western State Bank of an é€valuation of the nature

Devils Lake, 540 F.2d 948 of the conduct in question,

(8th Cir., 1976) at 953. the wisdom of some form of

pecuniary punishment, and

Returning once again to Justice Brennan the advisability of a

in Adickes, deterrent.

[To recover punitive damages], | | Given the language and policies set

it is sufficient for the

plaintiff to show either that

the defendant acted ‘under

color of [a] statute,

ordinance, regulation,

custom or usage of any

State or Territory', with

actual knowledge that he was

violating a right 'secured by

the Constitution and laws' or

that the defendant acted with

reckless disregard of whether

he was thus violating such a

right, 396 0.8. st 233;

S.Ct. at 1642.

—— ee

forth in Lee v. Southern Home Sites

Ccerporation, supra, it is respectfully

submitted that, indeed, this case was an

appropriate case for both compensatory and

punitive damages. Analyzing the facts in

the Lee fashion, it can easily be concluded

that because of Sheriff Whitman's obvious

deliberate, wanton and malicious conduct,

pecuniary punishment may be wise. Or, it

mav be also easily said that some form of

deterrent was deemed necessary by the trial

ccurt. To repeat, it is for these very

reasons that the court said in Lee:

—

[~

Therefore, the infliction

of such damages, and the

amount thereof when inflicted,

are of necessity within the

discretion of the trier of

fact. 429 F.2d at 294.

Further, in his arguments on damages,

anplicant seeks to show that Reverend Ford

and not Sheriff Whitman was the offending

partv! In view of the suggestions made

bt-.rein (supra) that Reverend Ford's comments

mice several months earlier, during a

political campaign clearly constitute fair

pelitical commentary, applicant's allega-

tions will not be further addressed except

as to authorities cited by him.

Pritchard v. Perry, 508 F.2d 423 (4th

Cir., 1975) cited by applicant does state,

in dicta, the proposition for which the

case was cited by applicant. However,

applicant fails to point out the distin-

etishing language of the same paragraph,

508 F.2d at 426:

But an individual, not under

the disability of prison

confinement, on the contrary,

has an ‘incontrovertible'

right--a right always ‘of

constitutional dimensions' to

be free from unreasonable

interference by police officers

and to enjoy ‘security from

arbitrary intrusion by the

police.’

15

The proposed application of Pritchard

suggested by applicant is inaccurate

since Pritchard was not a case dealing

with an award after trial on the merits

but rather was a decision reversing a

dismissal of the action for lack of a

cognizable action under the Civil Rights

Acts.

Likewise, Stolberg v. Members of the

Board of Trustees for State Colleges of

Connecticut, 474 F.2d 485 (2d Cir., 1973)

does not support applicant's position.

There, a professor was discharged for the

exercise of protected First Amendment

rights. Suit followed, but at trial, the

district judge found specifically that the

professor did not sustain any evidence of

pain and suffering or damage to reputa-

tion. Likewise, for policy reasons,

(474 F.2d at 489), the trial judge did not

believe punitive damages were necessary

to secure compliance with constitutional

requirements and such an award might even

have been detrimental to the public. Thus,

in fact, the Stolberg case merely is another

circuit's reaching the same conclusion

reiterated, supra, in Lee. That is, where

there is support in the record for a trial

judge's discretion, it will not be dis-

turbed on appeal. cf. Stolberg, 474 F.2d

at 489.

James v. Lusby, 499 F.2d 488 (D.C. Cir.,

1974) is entirely distinguishable from the

facts at bar. There is no evidence that

Reverend Ford did anything outside of the

range of proper conduct. He shouted no

16

obscenities at the Sheriff and, by the

Sheriff's own admission, he did not resist

applicant's attack.

Finally, applicant cites Caplin v. Oak,

356 F.Supp. 1250 (8.D. N.Y. 1973). Since

the case involved a situation involving

the outright dismissal of plaintiff's

complaint, the language of the case stands

only for the proposition that there must

be some showing of bad faith or indication

of deterrent impact to warrant punitive

damages. Here, unlike in Caplin, the

District Judge made specific findings in

his oral reasons for judgment (App. 199-

201) which point clearly to his reasons

for granting the damages stated herein,

and which constitute an adequate and viable

evidentiary basis for the trial court's

decision. His discretion, having been

soundly and wisely exercised, should not

be disturbed.

Because of what respondent believes is

a clear case of liability, it is respect-

fully submitted that, at the conclusion

hereof, respondent is entitled to a further

reasonable award of attorneys fees encom-

passing work in conjunction with Whitman's

writ application, and, pursuant thereto,

this Honorable Court should remand this

cause for purposes of fixing said addi-

tional fees.

CONCLUSION

For the foregoing reasons, it is

17

respectfully submitted that the decision

of the District Court as affirmed should

be affirmed insofar as that decision

awards damages, costs and attorneys fees,

and included should be an additional

reasonable award of attorneys fees encom-

passing work in conjunction with this writ

application, and further this Court should

remand this cause for purposes of fixing

said additional fees,

Respectfully submitted,

GRAVEL, RO¥ .& (BURNES

BY:

DEE D. DRELL

Attorneys for

Respondent

18

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the above

and foregoing Brief has been served upon

the following persons by placing a copy

of same in the mail, postage prepaid:

Mr. Bobby L. Culpepper

Attorney at Law

Post Office Drawer E

Jonesboro, LA 71251

Mr. John B. Benton, Jr.

Attorney at Law

Post Office Box 70

Minden, LA 71055

Br. ALex F. GnSdt8, JT.

Attorney at Law

307 Wall Street

Shreveport, LA 71104

Alexandria, Louisiana, this 3lst day of

January, 1980.

DEE D. DRELL