# Opposition — Whitman v. Ford

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 903

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1252%3A2. Public record. Not legal advice.