Petition — Starling v. Beard

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

- Sn Pa wae oe woe

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No- 79-2082

MARK STARLING,

Petitioner,

versus

WILLIAM E. BEARD, JR.,

and through his next friend and father,

WILLIAM E. BEARD, SR.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THF UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Eugene Hardwick Polleys, Jr.

Associate City Attorney

P.O. Box 1340

Government Center

Columbus, Georgia 31993

Attorney for Petitioner

SCOFIELOS' QUALITY PRINTERS. P O BOX 53096. N.O. LA 70153 - $04/822-1611

TABLE OF CONTENTS

Page

COPING BELO goin ceo se oees cece cnhdd eves 2

a. 2 at) @)) eee re rer err ere. 2

QUESTIONS PRESENTED FOR

a, ne ere Meer wre yre Cre yey 2

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED. ...sccccccccccedevses 3

STATEMENT OF THE CASE .........ceeeeceees 4

REASONS FOR THE ALLOWANCE

GP THE WIDE osc vccevntevivestavcvetsdawesas 6

A. The Court of Appeals has decided fed-

eral questions in a way inconflict with

applicable decisions of the Supreme

Court and these are important ques-

tions of federal law which should be

settled by the Supreme Court ..........: 6

B. The Court of Appeals has rendered a

decision in conflict with the decisions

of other courts of appeal on the same

ree, eer ee ee ee ee ed ee 17

C. The Court of Appeals has so far de-

parted from the accepted and usual

course of judicial proceedings that it

calls for supervision by the Supreme

COON vation ekeeds ur aeh ees eee wrens 20

TABLE OF CONTENTS (Continued)

Page

CERTIFICATE OF SERVICE ....----eeeeereeeee 28

APPENDIX A — Judgments, Opinions ....---+-- la

APPENDIX B — Amendment and Statutes ...--. 9a

APPENDIX C — Civil Rights Cases Involving

the use of Force Relied upon by Respond-

ent before the Fifth Circuit Court of

Appeals — Discussed and Distinguished by

i ealb be gacekensvevcvcece ones lla

TABLE OF AUTHORITIES

Baker v. McCollan, 99 S.Ct. 2689 (1979) .....- 5,11

Beker Phosphate Corp. v. Muirhead, 581 F.2d

1187, 1189, 1190 0, ) ee 25

Bishop v. Wood, 426 U.S. 341, 349 (1976) ...60% 15

Board of Regents v. Roth, 408 U.S. 564, 569

DCMU M ie yae wry atoctbecvccsscenres eset 26

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

1976), cert. den., 435 SSS OR, savage ccs ee geese 20

Charlton v. City of Hialeah, 188 F.2d 421,423

BME BUDE) oscsdiecderdcvessceoressoe ceees 22

Clements v. State, 226 Ga. 66, 67, 172 S.E.2d

600, 601 (1970) ....ceceeccecceccressers cere 4,11

Clemmons v. Greggs, 509 F.2d 1338 (Sth Cir.

DT ca inca btanoetseneecsescrecee coere 24

iil

TABLE OF AUTHORITIES (Continued)

Page

Cole v. Smith, 344 F.2d 721(6) (8th Cir.

|| een, eee mer IM ale om eRe ar ar rien eee ag ae 18

Cook v. Houston Post, 616 F.2d 791(6) (Sth

Cy Se os, pea een Vee eee nee ya wees 25

Curry v. Ragan, 257 F.2d 449, 450 (Sth Cir.

1958), cert. den., 358 U.S. 851. oi ee 23

Deloach v. Rogers, 268 F.2d 928 (Sth Cir.

Cer errs en rer eee eT ye

Dorsey v. NAACP, 408 F.2d 1022, 1024 (Sth

Cir. 1969), cert. den., 396 U.S. 847 .......46-. 24

Griffin v. Breckenridge, 403 U.S. 88, 101, 102

tics) Eee ee eer Tr ere reece Tree eee eee 10

Hamilton v. Chaffin, 506 F.2d 904 (Sth

Le See nbs avi soas weds peek eed Vee e es ahs 5,20

Havas v. Thornton, 609 F.2d 372 (9th Cir.

on en oe Per rr at a eee ee ee ee 20

Hornsby v. Allen, 326 F.2d 605, 610 (Sth Cir.

(| re rrr nt ae ee eee 24

Ingraham v. Wright, 525 F.2d 909, 917 (Sth

ae. BOP ov cc Cave tile dake kecadonss ts egpees 17

Ingraham v. Wright, 430 U.S. 651(2) (1977) ..... 16

Jones v. Hildebrant, 432 U.S. 183, 189-191

bl ef BOP POCTT CREEL CO Ee Pee 8

Johnson v. Bradstreet Company, 87 Ga. 79,

$1, 13 S.E. 250, 251 RNG cbcdnebevene ss cows 26

Lyons v. Baker, 180 F.2d 893 (Sth Cir.

errr nr ror rere. Pre ee ee be

TABLE OF AUTHORITIES (Continued)

Page

Lyons v. Sullivan, 602 F.2d 7(10) (1st Cir.

1979), cert. a ES et ee rerrey 19

McDowell v. State of Texas, 465 F.2d 1342,

1345, 1346 (Sth Cir. Oe ee eda bape 6 ee eS 24

Miller v. Carson, 563 F.2d 757, 760 (Footnote

SO Ps PONS Sec icceab as bxiinesks se houa 25

Paul v. Davis, 424 U.S. 693 (1976) ..... 5,6,19,26,27

Smith v. Klecker, 554 F.2d 848 (8th Cir.

a eet ee ey ee a ee wer ee ee ee 19

Stone v. Powell, 428 U.S. 465, 481, 482, 494

eR itt ee ens city 4a cakes Cake 15

Sullivan v. Brown, 544 F.2d 279 (6th Cir.

og re Sree errr reer re err eT eee ee ee 20

United States, ex rel Miller v. Twomey, War-

den, 479 F.2d 701, 719 ren Se BOTS) Tn cae 17

Walker v. Cahalan, 542 F.2d 681(1) (6th Cir.

\ 9076), cect. Gen., SIO US. POG 2. cc cicces Seces 19

Webster v. Redmond, 599 F.2d 793(4, 5) (7th

Cir. 1979), cert. den., 100 $.Ct. 712 ..... .000. 19

Wells v. Ward, 470 F.2d 1185, 1187 (10th

OFA : rere eee re Te ee Tere ee 18

Yglesias v. Gulfstream Park Racing Associa-

tion, Inc., 201 F.2d 817,818 (SthCir. 1953) .... 23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

MARK STARLING,

Petitioner,

versus

WILLIAM E. BEARD, JR.,

and through his next friend and father,

WILLIAM E. BEARD, SR.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays for the issuance of a writ of cer-

tiorari to review the decision of the United States

Court of Appeals, Fifth Circuit, entered on March 26,

1980 denying petitioner’s Motion for a Rehearing En

Banc and thereby adhering to the panel decision of Feb-

ruary 29, 1980, in summary calendar Case No. 79-

2778, unpublished, styled William E. Beard, Jr., and

through his next friend and father William E. Beard,

Sr., Plaintiff-Appellant, versus M. Starling, Defend-

ant-Appellee, on appeal from the United States District

Court for the Middle District of Georgia, which in Civil

Action No. 78-193, Columbus Division, entered its de-

cision on June 18, 1979, dismissing the Plaintiff’s com-

plaint on Defendant’s Motion for a Judgment on the

Pleadings, a case also unpublished.

OPINIONS BELOW

The decisions of the Court of Appeals and the Dis-

trict Court as well as the appropriate judgments enter-

ed in conjunction therewith are appended to this peti-

tion in Appendix “A”.

JURISDICTION

The statutory provision believed to confer on the

Supreme Court jurisdiction to review the judgment or

decree of the Court of Appeals by writ of certiorari is 28

U.S.C. §1254(1) (62 Stat. 928).

QUESTIONS PRESENTED FOR REVIEW

Does a complaint state a cause of action under 42

U.S.C. §1983 when it is predicated solely on a scuffle

between the Plaintiff and the Defendant which oc-

curred subsequent to a valid arrest of the Plaintiff by

Defendant? No.

Does 42 U.S.C. §1983 confer jurisdiction on a U.S.

District Court for a claim amounting simply to an

assault and battery cognizable under state tort law

when the Plaintiff himself alleges that the incident out

of which the claim arises amounts to assault and bat-

tery, and when the Plaintiff fails to invoke any consti-

tutional provision except the alleged right to be free

from physical abuse, coercion, and intimidation alleg-

edly secured by the due process clause of the 14th

Amendment? No.

Is such a claim too nebulous to rise to the consti-

tutional proportions necessary for federal jurisdic-

tion? Yes.

CONSTITUTIONAL PROVISION AND

STATUTES INVOLVED

The case involves the following constitutional pro-

vision and statutes, all of which are set out verbatim in

Appendix “B”:

Section 1 of the Fourteenth Amendment to the

United States Constitution

42 U.S.C. §1983 (R.S. §1979)

28 U.S.C. §1343(3)

STATEMENT OF THE CASE

The factual background for the issues in this case will

be found in both the opinions of the District Court and

of the Court of Appeals, and these facts are highlight-

ed below:

William Beard, Jr., was stopped by Officer Mark

Starling of the Columbus, Georgia Police Department

for a traffic violation and during the course of ques-

tioning subsequent to this arrest a scuffle ensued and

blows were exchanged between the Plaintiff and

Defendant.

Plaintiff brought a damage action under 42 U.S.C.

§1983 claiming assault and battery which he alleged to

constitute a denial of his due process rights under the

Fourteenth Amendment of the United States Consti-

tution.

Plaintiff’s attorney, apparently aware of the rule in

Clements v. State, 226 Ga. 66, 67, 172 S.E.2d 600, 601

(1970), that anarrest is accomplished whenever the lib-

erty of another is restrained no matter how slight that

restraint might be and that an arrest is complete from

the moment that police officers cause a person to alight

from an automobile which they have been driving,

made no allegation that the police officer’s alleged con-

duct was designed in any manner to bring about the

arrest and made no reference and invoked in no way

whatsoever the Fourth Amerdment of the Constitu-

tion of the United States so as to suggest that the

alleged misconduct constituted some sort of illegal

search and seizure, nor was any other provision of the

Constitution other than the Due Process Clause of the

Fourteenth Amendment invoked.

The District Court granted the Defendant’s Motion

for a Judgment on the Pleadings on the theory that the

Complaint made no claim for illegal arrest, but stated

simply an assault and battery claim which under the

Due Process Clause was too nebulous to rise to con-

stitutional proportions.

The Court of Appeals, relying on Hamilton v. Chaffin,

506 F.2d 904 (Sth Circuit 1975) and discarding Paul v.

Davis, 424 U.S. 693 (1976), and Baker v. McCollan, 99

S.Ct. 2689 (1979), reversed the District Court withthe

observation that the allegation of excessive force con-

stituted a violation of due process.

REASONS FOR THE ALLOWANCE

OF THE WRIT

A. The Court of Appeals has decided fed-

eral questions in a way in conflict with

the applicable decisions of the Supreme

Court and these are important ques-

tions of federal law which should be

settled by the Supreme Court.

Paul v. Davis, 424 U.S. 693 (1976) requires that this

assault and battery claim be dismissed because it con-

stitutes only a tort action under state law.

The implications of Paul v. Davis for the case at bar are

obvious. There the plaintiff alleged a classical claim for

defamation, but he brought it under 42 U.S.C. §1983

instead of Kentucky law, and the Supreme Court con-

cluded that he failed to set out a due process claim. The

Court at pages 698 and 699 discusses the implications

of allowing a §1983 claim:

“If respondent's view is to prevail, a person

arrested by law enforcement officers who an-

nounce that they believe such person to be

responsible for a particular crime in order to

calm the fears of an aroused populace, pre-

sumably obtains a claim against such officers

under §1983. And since it is surely far more

clear from the language of the Fourteenth

Amendment that ‘life’ is protected against

state deprivation than it is that reputation is

protected against state injury, it would be

difficult to see why the survivors of an inno-

cent bystander mistakenly shot by a police-

man or negligently killed by a sheriff driving a

government vehicle, would not have claims

equally cognizable under §1983.

It is hard to perceive any logical stopping

place to such a line of reasoning. Respond-

ent’s construction would seem almost neces-

sarily to result in every legally cognizable in-

jury which may have been inflicted by a state

official acting under ‘color of law’ establish-

ing a violation of the Fourteenth Amend-

ment. We think it would come as a great sur-

prise to those who drafted and shepherded the

adoption of that Amendment to learn that it

worked such a result, and a study of our deci-

sions convinces us they do not support the

construction urged by respondent.”

We note that this discussion presumes that the Four-

teenth Amendment more clearly protects life than in-

jury to reputation. It should also be presumed that the

Amendment more clearly protects life than injury to

the person and that an assault and battery is thus less

likely to rise to constitutional dimensions than a homi-

cide. If the Supreme Court has not concluded that

wrongful death actions are cognizable under civil

rights jurisdiction (See dissent of Justices White, Bren-

nan, and Marshall in Jones v. Hildebrant, 432 U.S. 183,

189-191 (1977), which also cites various circuits for the

proposition that physical abuses by police provide

grounds for recovery under §1983, but which does not

undertake an analysis of the fact that such claims are

normally tied to specific guarantees in the Bill of Rights

such as will be found in the Fourth or Eighth Amend-

ments: at the very least this dissenting opinion shows

how the case at bar presents some questions requiring

review by certiorari), certainly the Court has not con-

cluded that assault claims are so cognizable. For that

matter everything said at pages 699, 700, and 701 of the

opinion clearly indicates that neither homicide nor

assault claims, standing alone, will receive the atten-

tion of the federal courts:

“The first premise would be contrary to

pronouncements in our cases on more than

One occasion with respect to the scope of

§1983 and of the Fourteenth Amendment.

In the leading case of Screws v. United States, 325

U.S. 91 (1945), the Court considered the prop-

er application of the criminal counterpart of

§1983, likewise intended by Congress to en-

force the guarantees of the Fourteenth

Amendment. In his opinion for the Court

plurality in that case, Mr. Justice Douglas ob-

served:

‘Violation of local law does not necessari-

ly mean that federal rights have been in-

vaded. The fact that a prisoner is assault-

ed, injured, or even murdered by state

officials does not necessarily mean that he

is deprived of any right protected or

secured by the Constitution or laws of the

United States.’ 325 U.S., at 108-109.

After recognizing that Congress’ power to

make criminal conduct of state officials under

the aegis of the Fourteenth Amendment was

not unlimited because that Amendment ‘did

not alter the basic relations between the

States and the national government,’ the plur-

ality opinion observed that Congress should

not be understood to have attempted

‘to make all torts of state officials federal

crimes. It brought within [the criminal

provision] only specified acts done ‘under

color’ of law and then only those acts

which deprived a person of some right

secured by the Constitution or laws of the

United States.’ Id., at 109.

This understanding of the limited effect of

the Fourteenth Amendment was not lost in

the Court's decision in Monroe v. Pape, 365 U.S.

167 (1961). There the Court was careful to

point out that the complaint stated a cause of

action under the Fourteenth Amendment be-

cause it alleged an unreasonable search and

seizure violative of the guarantee ‘contained

in the Fourth Amendment.’ Id., at 171.

Respondent, however, has pointed to no

specific constitutional guarantee safeguard-

ing the interest he asserts has been invaded.

Rather, he apparently believes that the Four-

teenth Amendment’s Due Process Clause

should ex proprior vigore extend to him aright to

be free of injury wherever the State may be

characterized as the tortfeasor. But such a

reading would make the Fourteenth Amend-

ment a font of tort law to be superimposed

upon whatever systems may already be ad-

ministered by the States. We have noted the

‘constitutional shoals’ that confront any

rights statutes a body of general federal tort

law, Griffin v. Breckenridge, 403 U.S. 88, 101-102

(1971); a fortiorari, the procedural guarantees

of the Due Process Clause cannot be the

source for such law.”

It is interesting to note that the Griffin opinion, in

discussing 42 U.S.C. §1985(3) immediately prior to the

quote on “constitutional shoals,” makes the following

observation:

“For, though the supporters of the legisla-

tion insisted on coverage of private conspir-

acies, they were equally emphatic that they

did not believe, in the words of Representa-

tive Cook, ‘that Congress has a right to punish

an assault and battery when committed by

san

two or more persons within a Stafe’.

Baker v. McCollan, U.S. ___. (June 26, 1979), 99

S.Ct. 2689, makes dismissal of this post-arrest claim

even more imperative because there is no distinction

between a false imprisonment action arising because of

alleged constitutional wrongs commit. 2d after a valid

arrest and an assault and battery claim which also

arises after an arrest, the validity of which the plaintiff

himself does not challenge.

Clements v. State, 226 Ga. 66, 67, 172 S.E.2d 600, 601

(1970) defines arrest as follows:

“An arrest is accomplished whenever the liberty of

another to come and go as he pleases is restrained, no

matter how slight such restraint may be. The defend-

ant may voluntarily submit to being considered under

arrest without any actual touching or show of force,

and the arrest is complete. [Cits.] The mere fact that

the officer testifying with regard to these occurrences

stated at one place in his testimony that after he had

completed the search he ‘then placed him under arrest’

does not alter the fact that the defendant was actually

under arrest from the moment the police officers ap-

proached the automobile which he was driving and

caused him to alight therefrom... .”

An arrest having been accomplished by Officer Star-

ling, the facts and law of Baker v. McCollan are particu-

larly relevant and we quote from pages 4, 6, 7, 8,and 9

(footnotes omitted) of the slip opinion without any

‘ further comment:

“Respondent brought this damages action

‘pursuant to the Fourteenth Amendment to

the United States Constitution and

§1983.’ App. 6. After each party had rested his

case, the United States District Court for the

Northern District of Texas directed a verdict

in favor of Sheriff Baker and his surety,

Transamerica Insurance Company, without

articulating its reasons. The Court of Appeals

for the Fifth Circuit reversed. Characterizing

the respondent's cause of action as a‘“§1983

false imprisonment action,’ the Court of

Appeals determined that respondent had

made out a prima facie case by showing (1) in-

tent to confine, (2) acts resulting in confine-

ment, and (3) consciousness of the victim of

confinement or resulting harm. The question

in the court’s view thus became whether

Sheriff Baker was entitled to the defense of

qualified immunity, which in turn depended

on the reasonableness of his failure to insti-

tute an identification procedure that would

have disclosed the error. Noting that the error

would have been discovered if Potter County

officials had sent identifying material to

Dallas or had immediately upon respondent's

arrival in Amarillo compared him with the file

photograph and fingerprints of the wanted

man, the Court of Appeals determined that a

jury could reasonably conclude that the Sher-

iff had behaved unreasonably in failing to in-

stitute such measures. Accordingly, the case

was remanded to the District Court for a new

trial.”

* * *

“In this case respondent was arrested pur-

suant toa facially valid warrant, and the Court

of Appeals made no suggestion that respond-

ent’s arrest was constitutionally deficient. In-

deed, respondent makes clear that his §1983

claim was based solely on Sheriff Baker’s ac-

tions after respondent was incarcerated:”

‘McCollan’s §1983 claim against the

sheriff is not for the wrong name being

placed in the warrant or the failure to dis-

cover and change same or even the initial

arrest of the respondent, but rather for

the intentional failure to investigate and

determine that the wrong man was im-

prisoned.’ Brief for Respondent, at 12.

* * *

“Respondent's innocence of the charge con-

tained in the warrant, while relevant to a tort

claim of false imprisonment in most if not all

jurisdictions, is largely irrelevant to his claim

of deprivation of liberty without due process

of law.4 The Constitution does not guarantee

that only the guilty will be arrested. If it did,

§1983 would provide a cause of action for

every defendant acquitted — indeed, for every

suspect released. Nor are the manifold pro-

cedural protections afforded criminal defend-

ants under the Bill of Rights ‘without limits.’

Patterson v. New York, 432 U.S. 197, 208 (1977).

‘Due process does not require that every con-

ceivable step be taken, at whatever cost, to

eliminate the possibility of convicting an inno-

cent person.’ Ibid.”

* * *

“The Court of Appeals closed its opinion

with the following summary of its holding:”

‘We are saying that the sheriff or

arresting officer has a duty to exercise

due diligence in making sure that the per-

son arrested and detained is actually the

person sought under the warrant and not

merely someone of the same or similar

name. See Restatement (2d) of Torts §125,

Comment (d)(1965).’ Petn., at A-7.

“Section 1983 imposes liability for violations

of rights protected by the Constitution, not

for violations of duties of care arising out of

tort law. Remedy for the latter type of injury

must be sought in state court under tradi-

tional tort-law principles. Just as ‘[mJedical

malpractice does not become a constitutional

violation merely because the victim is a

prisoner,’ Estelle v. Gamble, 429 U.S. 97, 106

(1978), false imprisonment does not become a

violation of the Fourteenth Amendment

merely because the defendant is a state offi-

cial.”

“Having been deprived of no rights secured

under the United States Constitution,

respondent had no claim cognizable under

§1983. The judgment of the Court of Appeals

for the Fifth Circuit is therefore

Reversed.”

The Court of Appeals overlooked Bishop v. Wood, 426

U.S. 341, 349 (1976), where the Supreme Court con-

cluded that the Due Process Clause of the Fourteenth

Amendment is not a guarantee against ill-advised per-

sonnel decisions and where the Court in Footnote 13

suggested that some of the allegations that false

reasons were given for the petitioner’s discharge would

be matters for a state law claim.

The Court of Appeals overlooked the analogous case

of Stone v. Powell, 428 U.S. 465, 481, 482, 494 (1976),

where the Court held thai habeas corpus relief is not

available in those cases in which the state has provided

opportunity for full and fair litigation of a Fourth

Amendment claim and where footnote 35 makes cer-

tain remarks in the Fourth Amendment context which

are equally appropriate to the context of the present

case involving acommon law claim for assault and bat-

tery for which the Plaintiff could find relief under the

laws of Georgia:

“State courts, like federal courts, have a con-

stitutional obligation to safeguard personal

liberties and to uphold federal law. Martin v.

Hunter's Lessee, 1 Wheat. 304, 341-344 (1816).

Moreover, the argument that federal judges

are more expert in applying federal consti-

tutional law is especially unpersuasive in the

context of search-and-seizure claims, since

they are dealt with ona daily basis by trial level

judges in both systems.”

The Court of Appeals overlooked Ingraham v. Wright,

430 U.S. 651(2) (1977): “The Due Process Clause of the

Fourteenth Amendment does not require notice and

hearing prior to imposition of corporal punishment as

that practice is authorized and limited by the common

law.”

The opinion beginning at page 672 and ending at

page 682 discusses and emphasizes in great detail the

consideration of the availability of acommon law rem-

edy so as to preclude a plaintiff from obtaining relief

under the Due Process Clause of the Fourteenth

Amendment. If the availability of a common law rem-

edy for the corporal punishment of school children is

considered significant in precluding the exercise of fed-

eral jurisdiction, then we see no reason why the availa-

bility of acommon law remedy for a tort such as assault

and battery should not also result in the dismissal of a

federal complaint predicated on the Due Process

Clause. When the Supreme Court in Ingraham affirmed

the Fifth Circuit Court of Appeals in Ingraham v. Wright,

525 F.2d 909 (Sth Cir. 1976), it affirmed an opinion of

that Court sitting en banc which also gave attention to

the availability of state remedies as a ground for deny-

ing federal jurisdiction. On page 917 of the en banc

opinion we see the following observation upon con-

sideration of the substantive due process issue: “We

note again the possibility of a civil or criminal action in

state court against a teacher who has excessively

punished a child.” Also on page 917 of the opinion we

see this observation as to the procedural due process

issue: “We do not believe that infliction of a paddling

subjects a schoolchild to a grievous loss for which the

Fourteenth Amendment due process standards should

be applied.” The fact that the Plaintiff in the case at bar

has alleged physical injuries does not make the present

case any different from Ingraham because in that case

each of the plaintiffs alleged physical injuries which re-

quired medical attention.

B. The Court of Appeals has rendered a de-

cision in conflict with the decisions of

other courts of appeal on the same

matter.

United States, ex rel. Miller v. Twomey, Warden, 479 F.2d

701, 719 (7th Cir. 1973), in an opinion by Judge Stevens

(promoted to Justice), rejects an Eighth Amendment

claim in part on the following rationale: “The assault

committed by Bright was acommon law tort; he did not

violate §1983.”

Cole v. Smith, 344 F.2d 721(6) (8th Cir. 1965) rejects

assault claims under §1983: “State prisoner could not

maintain action in federal district court under Civil

Rights Act against hospital aides at state security hos-

pital, where prisoner had been under treatment, for

alleged assaults by hospital aides.”

Wells v. Ward, 470 F.2d 1185, 1187 (10th Cir. 1972)

appears reluctant to entertain assault and battery

claims in federal courts:

“The cases recognize that evaluations of

rights and duties under §1983, supra, arising as

they do under the Fourteenth Amendment to

the Constitution of the United States, are

often different from counterpart common law

actions which arise under state substantive

law. This is not to say that at times the same

set of facts will not give rise to remedies under

both §1983 and the state law of torts. The dif-

ferences are though in terms of not only the

requisite elements under §1983, but also in

the gravity of the right which has been in-

vaded. For example, under state common law,

the mere placing of another in apprehension

of bodily harm is an assault and the mere un-

privileged touching of another is a battery.

Also, the slightest interference with personal

liberty is a false imprisonment. It does not

follow that all such invasions however trivial

or frivolous serve to activate remedies under

the due process clause of the Fourteenth

Amendment as well as those parts of the Bill

of Rights which are incorporated in and made

a part of due process.”

The following circuits have applied Paul v. Davis in its

more restricted sense — the state or common law tort

of defamation alone does not deprive a plaintiff of a lib-

erty interest cognizable by the Civil Rights Act or the

Fourteenth Amendment:

(a) Lyons v. Sullivan, 602 F.2d 7(10) (1st Cir.

1979), cert. den., 100 S.Ct. 159

(b) Walker v. Cahalan, 542 F.2d 681(1) (6th

Cir. 1976), cert. den., 430 U.S. 966

Cir. 1979), cert. den., 100 S.Ct. 712

(d) Smith v. Klecker, 554, F.2d 848 (8th Cir.

1977)

3S.

The following circuits have applied Pau! v. Davis in its

more general sense — the Civil Rights Act and the

Fourteenth Amendment are not intended to be a gen-

eral font of tort law or catch-all statutes for state law

claims:

(a) Sullivan v. Brown, 544 F.2d 279 (6th Cir.

1976)

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

1976) cert. den., 435 U.S. 932

1979) — case demonstrates distinction

between a pure state tort claim and a

claim apparently involving the Fourth

Amendment, for the first paragraph and

Footnote 3 of the opinion indicates that

certain claims involving an illegal arrest

were not dismissed and the publisher’s

syllabus 2 cites the Fourth Amendment

as being in issue.

C. The Court of Appeals has so far depart-

ed from the accepted and usual course of

judicial proceedings that it calls for

supervision by the Supreme Court.

The Court of Appeals in the present case misappre-

hended, misconstrued, and misapplied Hamilton v. Chaf-

fin, 506 F.2d 904 (Sth Cir. 1975) for the following

reasons:

(a) As indicated by footnote 3 in that opin-

ion which is found on page 907, the Plaintiff

contended that the decedent’s right to due

process and freedom from cruel and unusual

punishment were denied by the defendants’

actions under color of state law and such an

allegation is not involved in the case at bar, nor

is there the invocation of any other federal

constitutional right except the Due Process

Clause. The Plaintiffs in the case at bar do not

even invoke the Fourth Amendment because

they apparently have conceded the validity of

the initial arrest and they only are concerned

with the scuffle itself which occurred subse-

quent to this arrest.

(b) The opinion recognizes on page 910 that

a violation of a state created right does not

reach constitutional proportions and it is in-

sufficient to constitute a violation of a right

cognizable under 42 U.S.C. §1983. As we in-

dicated in the foregoing subparagraph, the

Plaintiffs in the case at bar do not allege the

violation of any specific constitutional right,

but rather invoke the Due Process Clause ona

claim which is essentially a state tort, which

they themselves designate as assault and bat-

tery and which they themselves desig nate as a

claim cognizable under the laws of the State of

Georgia. The claim that this is a due process

violation is purely redundant and completely

overlaps the essential nature of the action,

that is as an assault and battery tort recog-

nized by the Georgia law.

indistinguishable and thus authority for the

decision of the Court of Appeals in the case at

bar, we respectfully suggest that the Court

consider whether or not subsequent deci-

sions of the Supreme Court of the United

States have in fact by now brought into ques-

tion the validity of the holding in Hamilton v.

Chaffin.

The Court of Appeals overlooked Lyons v. Baker, 180

F.2d 893 (Sth Cir. 1950): “Complaint alleging that

grand jury convened on behalf of the state of Florida, in

order to harm, libel and injure the plaintiff, made false

and malicious charges against him, was properly dis-

missed for want of federal jurisdiction.”

The Court of Appeals overlooked Charlton v. City of

Hialeah, 188 F.2d 421, 423 (Sth Cir. 1951): ”... It was

not intended by the 14th Amendment and the civil-

rights statute that all matters formerly within the ex-

clusive cognizance of the states should become matters

of national concern... . Every illegal discrimination by

a policeman on the beat would be state action for the

purpose of suit in a federal court.”

The Court of Appeals overlooked Yglesias v. Gulf-

stream Park Racing Association, Inc., 201 F.2d 817, 818 (Sth

Cir. 1953): “... Where the alleged claim under the

Constitution or federal statutes clearly appears to be

colorable, or made solely for the purpose of creating

federal jurisdiction over what would otherwise be an

action to vindicate a right arising only under state law,

and no substantial facts establishing federal jurisdic-

tion are alleged, mere conclusions asserting the viola-

tion of a constitutional right are insufficient.”

The Court of Appeals overlooked Curry v. Ragan, 257

F.2d 449, 450 (Sth Cir. 1958), cert. den., 358 U.S. 851

(1958): “Neither the Fourteenth Amendment nor the

Civil Rights Acts purported to secure a person against

unfounded or even malicious claims or suits in state

courts, especially so when the laws and courts of the

state are available and furnished adequate remedies to

a person aggrieved.”

The Court of Appeals overlooked Deloach v. Rogers,

268 F.2d 928 (Sth Cir. 1959): Action brought against

sheriff and deputy only asserted claim “for false arrest

and assault and battery and did not allege cause under

Federal Civil Rights Act.”

The Court of Appeals overlooked Hornsby v. Allen, 326

F.2d 605, 610 (Sth Cir. 1964): “Courts have been reluc-

tant to allow what they consider simple state actions

for false imprisonment and assault and battery to be

brought in the federal courts as civil rights actions.”

The Court of Appeals overlooked Dorsey v. NAACP.

408 F.2d 1022, 1024 (Sth Cir. 1969), cert. den., 396 ao

847 (1969): “But it is axiomatic that these civil rights

statutes of the post-bellum period were not intended to

preempt state laws in their proper role of vindicating

what are essentially state-guaranteed rights.”

The Court of Appeals overlooked McDowell v. State of

Texas, 465 F.2d 1342, 1345, 1346 (Sth Cir. 1971): Gen-

eral claim of lack of due process unaccompanied by

more precise claim of a federal right violation does not

create §1983 jurisdiction when only a state violation is

involved.

10.

The Court of Appeals overlooked Clemmons v. Greggs,

509 F.2d 1338 (Sth Cir. 1975): Prison ruckus between

guards and inmates did not amount to civil rights case.

The Court of Appeals overlooked Miller v. Carson, 563

F.2d 757, 760 (Footnote 7) (Sth Cir. 1977): “. . . Viola-

tion of state law by a state official, without more, is not

a violation of the federal right to procedural due

process.”

12.

The Court of Appeals overlooked Beker Phosphate Corp.

v. Muirhead, 581 F.2d 1187, 1189, 1190 (1978): “Section

1983 simply does not provide a remedy for mere com-

mon law torts, even though committed under color of

state law.”

13.

The Court of Appeals overlooked Cook v, Houston Post,

616 F.2d 791(6) (Sth Cir. 1980): “Prosecuted persons’

interest in reputation, false arrest, malicious prosecu-

tion, libel and slander were matters which state pro-

tects by virtue of tort law, providing forum for such

interests by means of damage action, and plaintiffs,

who had been unsuccessfully prosecuted, had been de

prived of no rights secured under Constitution and

thus had no claim cognizable under 1871 civil rights

statute.”

CONCLUSION

The foregoing authorities and the civil rights cases

involving the use of force collected and discussed or dis-

tinguished in Appendix “C” at the very least suggest

«@

that this area of civil rights jurisdiction has produced

questions worthy of the attention of this Court, and

Officer Mark Starling of the Columbus, Georgia Police

Department respectfully suggests both consideration

of these questions and the rendition of certain answers

sustaining the original dismissal of the complaint. It

would seem consistent with good federal policy and

good common sense to require federal plaintiffs to link

their claim to something more tangible than “due

process” — something recognized by long practice in

procedural matters or in the Bill of Rights. Board of

Regents v. Roth, 408 U.S. 564, 569 (1974) suggests that

the protection to “life” afforded by the Fourteenth

Amendment does not create any special area of federal

constitutional protections against wrongful deaths,

but only considers the term “life” significant insofar as

it relates to protections to“liberty” or “property”: “The

requirements of procedural due process apply only to

the deprivation of interests encompassed by the Four-

teenth Amendment’s protection of liberty and prop-

erty.” If “life” itself is not within the scope of federal

protection, how then can various bodily parts be with-

in such protection? Whether or not the Fourteenth

Amendment and 42 U.S.C. §1983 contemplate any fed-

eral tort law for the infliction of death itself need not

occupy the attention of the Court in this case, for the

Plaintiff only alleges assault and battery resulting in

personal injuries. In light of these facts and in view of

the rule in Paul v. Davis, the classification of various

rights by the distinguished authorities cited in Johnson v.

Bradstreet Company, 87 Ga. 79, 81, 13 S.E. 250, 251 (1891)

becomes significant:

“At common law, absolute personal rights

were divided into personal security, personal

liberty, and private property. The right of per-

sonal security was subdivided into protection

to life, limb, body, health, and reputation. 3

Blackst. Com. 119. If the right to personal

security includes reputation, then reputation

is a part of the person, and aninjury to the rep-

utation is an injury to the person. Under the

head of ‘security in person,’ Cooley includes

the right to life, immunity from attacks and

injuries, and to reputation. Cooley on Torts

(2d ed.), 23, 24. See, also, Pollock on the Law of

Torts, *7. Bouvier classes among absolute in-

juries to the person, batteries, injuries to

health, slander, libel, and malicious prosecu-

tions. 1 Bouv.L.Dic. (6th ed.) 636.”

Accordingly, the writ of certiorari should issue, the

Court of Appeals should be reversed, and the District

Court should be sustained under the authority of Paul

v. Davis which excludes injury to reputation from the

liberty or property interests protected by the Due

Process Clause and under the common law which

places libel and slander in the same category of per-

sonal injuries as assault and battery and which cate-

gorizes these personal interests under a different head-

ing than those separate interests defined as “personal

liberty” or “private property.”

day of June, 1980.

Respectfully submitted, this

Eugene Hardwick Polleys, Jr.

Associate City Attorney

P. O. Box 1340

Columbus, Georgia 31993

Attorney for Petitioner

(404) 324-7711 Extension 453

CERTIFICATE OF SERVICE

I certify that I have caused to be served the necessary

copies of this petition on Donald M. Samson of Moore

& Worthington, Attorney for Respondent, 908 Sec-

ond Avenue, Columbus, Georgia, 31901, by causing

the printer to place said copies in the United States

mail, postage prepaid.

This

_day of June, 1980.

Eugene Hardwick Polleys, Jr.

APPENDIX A

JUDGMENTS, OPINIONS

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OFFICE OF THE CLERK

March 26, 1980

TO ALL PARTIES LISTED BELOW:

NO. 79-2778 — WILLIAM E. BEARD, JR., Etc., -vs-

M. STARLING,

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition( ) for rehearing, and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 16) the

petition( ) for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

ls} SARAH L. HOLMES

Deputy Clerk

cc: Mr. Donald M. Samson

Mr. Eugene Hardwick Polleys, Jr.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1979

No. 79-2778

Summary Calendar

D.C. Docket No. CA 78-193-COL

WILLIAM E. BEARD, JR.,

and through his next friend and father

William E. Beard, Sr.,

Plaintiff-Appellant,

versus

M. STARLING,

Defendant-Appellee.

Appeal from the United States District Court for the

Middle District of Georgia

Before GEE, RUBIN and POLITZ, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

the Middle District of Georgia, and was taken under

submission by the Court upon the record and briefs on

file, pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the order of

the District Court appealed from, in this cause be, and

the same is hereby, reversed and that this cause be and

the same is hereby remanded to the said District Court

for further proceedings in accordance with the opin-

ion of this Court;

IT IS FURTHER ORDERED that defendant-appellee

pay to plaintiff-appellant, the costs on appeal to be tax-

ed by the Clerk of this Court.

FEBRUARY 29, 1980

ISSUED AS MANDATE:

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

(Number and Title Omitted)

Summary Calendar”

February 29, 1980

Before GEE, RUBIN and POLITZ, Circuit Judges.

PER CURIAM:

William Beard, Jr. appeals the dismissal of his 42

U.S.C. §1983 claim against M. Starling, a Columbus,

Georgia police officer for willfully beating him during

the course of an arrest. The trial judge granted the

defendant’s motion for judgment on the pleadings

under Federal Rule of Civil Procedure 12(c), nolding

that Beard’s claim failed to state a due process claim

under §1983.

The complaint states that Officer Starling stopped

Beard for a traffic violation. It alleges that, upon

Beard’s refusal to blow into the officer’s hat, Starling

shoved Beard against the police car and struck him,

wrestled him to the ground, handcuffed him to a tree

and beat him with a night stick. Beard contends that

these acts violated his Fourteenth Amendment due

process rights.

The alleyved facts give rise to a §1983 cause of action

under our holding in Hamiltonv. Chaffin, 506 F.2d 904

(Sth Cir. 1975), which stated:

* Fed.R.App.P. 34(a); 5 Cir. F. 18.

Plaintiff asserted a claim cognizable under 42

U.S.C. §1983 by alleging that the defendants,

while acting under color of state law, used ex-

cessive force in apprehending and detaining

young Yates. The use of excessive force con-

stitutes a violation of the Fourteenth Amend-

ment right to due process, and, as such, is

actionable under Section 1983.

Id. at 909.

The recent decisions of Paul v. Davis, 424 U.S. 693,

96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), and Baker v. Mc-

Collan, U.S.___., 99 S.Ct. 2689, L.Ed.2d

(1979), do not alter the holding in Hamilton. These cases

only reinforce the proposition that, in a §1983 action, a

plaintiff must first point to the violation of a specific

constitutional right. That threshold requirement has

been met here by the allegation of excessive force con-

stituting a violation of due process.

Of course, we intimate no opinion that the allega-

tions can be proved, or even that summary judgment

may or may not eventually be permissible. We hold

simply that dismissal on the bare bones of notice plead-

ing was not warranted.

For the above reasons, we REVERSE and REMAND

for further proceedings.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

WILLIAM E. BEARD, JR., BY AND

THROUGH HIS NEXT FRIEND AND FATHER,

WILLIAM E. BEARD, SR.,

Plaintiff,

versus CA No. 78-193-COL

M. STARLING,

Defendant.

Filed: June 18, 1979

JUDGMENT

Pursuant to the Court’s Memorandum and Order

filed on June 18, 1979, and for the reasons contained

therein, Defendant’s Motion for judgment on the

pleadings is sustained and the Plaintiff’s complaint is

dismissed without prejudice to his right to reassert his

claim in an appropriate state forum if he chooses to do

sO.

Judgment is therefore entered in favor of the

defendant.

At Columbus, Georgia this 18th day of June, 1979.

WALTER F. DOYLE, CLERK

Is! Jonnie L. Adams

Jonnie L. Adams, Deputy Clerk

I certify that I have this date

mailed a copy thereof to all

counsel of record.

This 18th day of June, 1979.

Is} Jonnie L. Adams

Jonnie L. Adams

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

COLUMBUS DIVISION

(Number and Title Omitted)

Filed: June 18, 1979

MEMORANDUM AND ORDER ON DEFENDANT'S

MOTION FOR JUDGMENT ON THE PLEADINGS

In the action above identified the Plaintiff invokes 42

U.S.C. §1983 and the Fourteenth Amendment to the

Constitution and he refers to being deprived of rights,

privileges and immunities under color of state law.

The pleadings show that the Plaintiff was operating a

motor vehicle on the streets inColumbus, Georgia, and

was arrested by the Defendant for a violation of the

traffic ordinances in the city, the Defendant being a

traffic officer of the city. During the course of ques-

tioning and examination by the officer a scuffle en-

sued and blows were exchanged between the Plaintiff

and Defendant, as a result of which the Plaintiff claims

general and punitive damages of the Defendant, and

the Defendant by counterclaim seeks general and puni-

tive damages of the Plaintiff.

The Defendant has filed a motion for judgment on

the pleadings, contending that the civil rights statute

referred to was not intended to confer jurisdiction in

this Court in a situation of this nature.

It is the Court’s view that the Plaintiff's complaint

does not set out a due process claim cognizable under

the civil rights statute. This is simply an assault and

battery claim which should be prosecuted under the

appropriate state statute in a state court. Section 1983

was not intended to pre-empt state laws in their prop-

er role of vindicating what are essentially state-guar-

anteed rights. We do not have here a claim of illegal

arrest, and assault claims, standing alone, will not ordi-

narily receive the attention of the Federal Courts.

The federal claim here asserted is too nebulous to

rise to the constitutional proportions necessary to give

this Court jurisdiction. Accordingly, the Defendant's

motion for judgment on the pleadings is sustained and

the Plaintiff’s complaint is dismissed without preju-

dice to his right to reassert his claim in an appropriate

state forum if he chooses to do so.

IT 1S SO ORDERED this 18th day of June, 1979.

J. ROBERT ELLIOTT

UNITED STATES DISTRICT

JUDGE

APPENDIX B

Section 1 of the Fourteenth Amendment

to the United States Constitution

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shail

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

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

nor deny to any person within its jurisdiction the equal

protection of the laws.

10a

42 U.S.C. §1983 Civil action for deprivation of rights

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

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

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

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

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

at law, suit in equity, or other proper proceeding for re-

dress.

28 U.S.C. §1343(3) Civilrights and elective franchise

The district courts shall have original jurisdiction of

any civil action authorized by law to be commenced by

any person:

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity secured by

the Constitution of the United States or by any Act of

Congress providing for equal rights of citizens or of all

persons within the jurisdiction of the United States.

lla

APPENDIX C

Civil Rights Cases Involving the Use of Force Relied

upon by Respondent before the Fifth Circuit Court of

Appeals—Discussed and Distinguished by Petitioner.

Morgan v. Lambiak, 368 F.2d 338 (Tenth Circuit 1966):

There is no indication in this case that the defendants

made an issue of federal jurisdiction, but there is every

indication that force constituted an integral part of the

arrest and that either the plaintiff or the court appar-

ently had in minda Fourth Amendment violation: “The

appellants in the presence of the assembled crowd used

their night sticks to dislodge the appellee from his prop-

erty and take him to the city jail.” 368 F.2d 338, 340.

Jenkins v. Averett, 424 F.2d 1228 (Fourth Circuit 1970):

The court considered the matter to be a Fourth Amend-

ment violation: “It should not be forgotten that the

Fourth Amendment expressly declares ‘the right of the

people to be secure in their persons ... against un-

reasonable searches and seizures’ ”. 424 F.2d 1228,

1232.

Johnson v. Glick, 481 F.2d 1028 (Second Circuit 1974):

The plaintiff in this case invoked the Eighth Amend-

ment and on pages 1032 and 1033 the opinion dis-

cusses Rochin v. California, 342 U.S. 165 (1952) which in-

12a

volved a “stomach pumping” process used for obtain-

ing evidence, which the court said constituted conduct

which “shocks the conscience” and which obviously

would involve Fourth Amendment considerations be-

cause of the purpose of the shocking conduct. Particu-

larly relevant to the case at bar is the observation on

page 1033 that “the constitutional protection is no-

where nearly as extensive as that afforded by the com-

mon law tort action for battery.”

Henry v. Cagle, 482 F.2d 137 (Sixth Circuit 1973): The

issue in this case was whether the acts occurred under

color of state law and defendants made no issue of federal

jurisdiction nor did the court consider such an issue: “The

case was decided principally on the question of whether

or not the constable at the time was investigating a

crime within his official orbit.”

Gregory v. Thompson, 500 F.2d 59 (Ninth Circuit 1974):

As indicated by a reading of this opinion on page 62, it

apparently concludes that assault and battery consti-

tutes a valid claim for a number of reasons unrelated to

the case at bar. The defendant justice of the peace in

evicting the plaintiff from the courtroom acted under

color of state law and apparently thereby denied him

some right of access to the court and thus the assault

and battery could be said to rise to constitutional pro-

portions. The opinion cites Cohen v. Norris, 300 F.2d 24

(Ninth Circuit 1962) and Jenkins v. Averett, bothof which

13a

involve Fourth Amendment claims and then the opin-

ion goes on to say that “the right violated by an assault

has been described as the right to be secure in one’s per-

son and is grounded in the due process clause of the

Fourteenth Amendment.” However, the opinion ap-

parently confuses or has in mind or means the Fourth

Amendment as incorporated by the Fourteenth Amend-

ment because it is the Fourth Amendment, not the

Fourteenth Amendment, which contains this language

and, of course, the full phraseology of the Fourth

Amendment is the “right of the people to be secure in

their persons . . . against unreasonable searches and seizures’,

not any right to be free from the common law tort of

assault and battery which was at the time of the ratifi-

cation of the amendment and still is a state, not a federal,

tort. Then the opinion directs our attention to Curtis v,

Everette, 489 F.2d 516 (Third Circuit 1973) and Johnson v.

Glick, both of which invoke the cruel and unusual

punishment clause of the Eighth Amendment.

Bellows v. Dainack, 555 F.2d 1105 (Second Circuit

1977): This is another Fourth Amendment case: “The

plaintiff contended that the defendants deprived him of

his constitutional rights by subjecting him to undue

physical force at the time of his arrest and shortly

thereafter by detaining him illegally in their patrol car.”

555 F.2d 1105, 1106. The distinction between a pure

assault claim and an assault claim which is coupled to a

Fourth Amendment claim is illustrated in footnote 1

which cites Monroe v. Pape, 305 U.S. 167 (1961) and Paul

14a

v. Davis, and this footnote at page 1107 makes the dis-

tinction inits concluding sentence: “Where, as here, the

plaintiff alleges an illegal arrest and detention, the

guarantee of ‘liberty’ under the Due Process Clause is

clearly involved.”

Davis v. Murphy, 559 F.2d 1098 (Seventh Circuit

1977): The plaintiffs invoke the Fourth and the Eighth

and the Thirteenth Amendments, the latter of which

was allegedly violated by inflicting upon them punish-

ments because of their Afro-American ancestry. In

addition, the court considered that the plaintiffs could

invoke the procedural due process guarantee of the

Fourteenth Amendment because of the false charges

allegedly made against them, a matter which is not in-

volved in the case at bar: “As shown in our brief sum-

mary of the amended complaint, plaintiffs asserted that

the assaults inflicted upon them were excessive, that

their arrests were unlawful, and that defendants mali-

ciously attempted to have false charges issued against

them, all in specific violation of the Fourth and Eighth

Amendments, as incorporated in the Fourteenth, as

well as the procedural due process guarantee em-

bodied in the Fourteenth Amendment itself.” 559 F.2d

1098, 1102.

Landrum v, Moats, 576 F.2d 1320 (Eighth Circuit 1978):

The plaintiff's decedent was shot and killed while flee-

15a

ing arrest and a string of constitutional violations was

alleged: “In the present case plaintiff-appellant asserts

violations of the fourth, fifth, sixth, eighth, and four-

teenth amendment rights.” 576 F.2d 1320, 1324. “The

right to life is fundamental and is protected against un-

reasonable or unlawful taking by the procedural due

process safeguards of the fifth and fourteenth amend-

ments.” 576 F.2d 1320, 1325. This latter assertion by

the court might be questioned under the assertion

made in the dissenting opinion in Jones v. Hildebrant.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.