Opposition — Varney v. Smiddy

T Office - Supreme if |

FILE

4 80 0

TEVAS

No. 81-2155

IN THE

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1981

DUDLEY J. VARNEY, SIDNEY J.

NUCKLES and RAYMOND D, INGLIN,

Petitioners,

vs.

GARY D. SMIDDY,

Hoa Aneto, Cater 60017

Couns el ot Record for Respondent

155 a Lafayette Street

Ma comb, s 61455

(309) 1291765

Counsel tor Respondent

*

:

‘ >

1 >> = a

tbat” Px. REPS a

QUESTIONS PRESENTED

1. Whether a claim based upon a plaintiff's

warrantless arrest and detention without probable

cause is cognizable under 42 U.S.C. §1983 regard-

less of the defendant's intent in causing the unlawful

arrest and detention and regardless of the possible

availability of alternative state remedies.

2. Whether the trial court's instructions to the

jury on the issues of probable cause and good faith

immunity properly reflected well-settled law re-

garding the jury's role in deciding disputed questions

of reasonableness in federal civil rights actions.

3. Whether this Court should review the principle,

uniformly accepted and applied by each of the various

circuits, that an appellate court may remand a case

for a partial retrial on the distinct and separable

issue of damages where the issues concerning

liability have been fairly litigated and properly

determined.

i.

TOPICAL INDEX

Questions Presented

Table of Authorities

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGU MENT

THE INSTANT CASE INVOLVING

A $1983 CIVIL RIGHTS CLAIM

BASED ON THE SPECIFIC CON-

STITUTIONAL GUARANTEES OF

THE FOURTH AMENDMENT DOES

NOT POSE ANY ISSUE WARRANT-

ING REVIEW BY THIS COURT

THE PARAMOUNT ROLE OF THE

JURY IN DECIDING DISPUTED

QUESTIONS OF REASONABLENESS

IN $1983 ACTIONS IS WELL-

ESTABLISHED AND UNIFORMLY

ACCEPTED BY THE FEDERAL

COURTS, THE INSTRUCTIONS IN

rn |

11

THIS CASE PROPERLY SUBMITTED

SUCH QUESTIONS TO THE JURY,

AND NO ISSUE MERITING REVIEW

BY THIS COURT IS POSED BY

THOSE INSTRUCTIONS

THE STANDARDS FOR DETER-

MINING THE PROPRIETY OF A

REMAND FOR PARTIAL RETRIAL

ARE WELL-SETTLED, AND NO

SIGNIFICANT QUESTION REGARD-

ING THEIR APPLICATION IS

RAISED BY THIS CASE

U.

34

CONCLUSION 39

TABLE OF AUTHORITIES

Federal Cases

Baker v. McCollan,

443 U.S. 137, 98 S.Ct. 2689,

61 L. Ed. 2d 433 (1979) 18, 19, 21

Banish v. Locks,

414 F. 2d 638 (7th Cir. 1969) 28, 31

Beauregard v. Wingard,

362 F.2d 901 (9th Cir. 1966) 28

Beck v. State of Ohio,

379 U.S. 89, 85 S.Ct. 223,

12 L. Ed. 2d 142 (1964) 24, 26

Bivens v. Six Unknown Named ts,

456 F.2d 1339 (2d Cir. 1972)

(on remand) 27

Black v. Stephens,

662 F.2d 181 (3d Cir. 1981) 20

Boscarino v. Nelson,

518 F.2d 879 (7th Cir. 1975) 27

Bosse v. Litton Unit Handling System,

646 F.2d 689 (ist Cir. 1981) 35

Draeger v. Grand Central, Inc.,

504 F.2d 142 (10th Cir. 1974) 28

Duncan v.

Poythress

657 F.2d 691 (5th Cir. 1981)

cert. granted, 50 U. 8. L. W. 3668

(1982) 21

iii.

Fury Imports v. Shakespeare Co.,

554 F.2d 1376 (Sth Cir. 1977) 36

2 4 Aap Co. v. Champlin

0.

283 U.S. 494, 51 8. Ct. 513,

75 L. Ed. 1188 (1931) 10, 34, 38

Gilker v. Baker,

576 F. 2d 245 (9th Cir. 1978) 24, 25, 26

28, 30, 32

Giordano v. Lee,

434 F.2d 1227 (8th Cir. 1970)

cert. denied, 403 U.S. 931, 91

S.Ct. 2250, 29 L. Ed. 2d 709(1971) 28, 32

Glasson v. City of Louisville,

518 F.2d (6th Cir. )

cert. denied, 423 U.S. 930, 96

S.Ct. 280, 46 L. Ed. 2d 258 (1975) 25

Gomez v. Toledo,

446 U.S. 635, 100 S.Ct. 1920,

64 L. Ed. 2d 572 (1980) 31

Hall v. Tauney,

621 F.2d 607 (4th Cir. 1980) 20, 21

Howse v. DeBe Correctional Institute,

537 F.Supp. 1177(M.D. Tenn. 1982) 21

Jaroslowicz v. Seedman,

528 F.2d 727 (2d Cir. 1975) 27

Lies v. Farrel Lines, Inc.,

641 F.2d 765 (9th Cir. 1981) 35

Linn v. Garcia,

531 F. 2d 855 (8th Cir. 1976) 26, 28

iv.

Martin v. Duffie,

463 F.2d 464 (10th Cir. 1972)

Meshkov v. Abington Township,

517 F.Supp. 1280 (E. D. Pa. 1981)

Monroe v. Pape,

365 U. 8. 167, 81 8. Ct. 473,

5 L. Ed. 2d 491 (1961) i7, 18, 19,

ry Ward Inc. v. Freeman,

199 F.2d 720 (4th Cir. 1952)

Nat Harrison Associates, Inc. v.

Gulf States Utilities Co.,

491 F.2d 578 (Sth Cir. 1974)

Navarette v. Enomoto,

536 F.2d 277 (9th Cir. 1976)

Nesmith v. Alford,

318 F.2d 110 (Sth Cir. 1963)

Nix v. 1

573 F.2d 998 (8th Cir. 1978)

cert. denied, 444 U.S. 929,

100 S.Ct. 271, 62 L. Ed. wd 186

(1979) 28,

Owen v. City of Independence,

445 U.S. 622, 100 8. Ct. 1398

(1980)

Parrat v. Taylor, 7, 8, 11,

451 U. 8. 527, 101 S.Ct. 1908, 13, 14,

68 L. Ed. 2d 420 (1981) 16, 17,

21, 22,

.

24

21

14

31

12

15

19

23

Paul v. Davis,

424 U. 8. 693, 96 8. Ct. 1155.

47 L. Ed, 2d 405 (1976)

Pierson v. Ray,

386 U.S, 547, 87 S.Ct. 1213,

18 L. Ed. 2d 288 (1967) 24, 26,

Powe v. City of Chicago,

664 F.2d 639 (7th Cir. 1981)

Procunier v. Navarette,

434 U.S, 555, 98 S.Ct. 855,

55 L. Ed. 2d 24 (1978) 14, 24,

Rochin v. California,

342 U. 8. 165, 72 S.Ct. 205,

96 L. Ed. 183 (1952)

— v. Arizona Board of R °

F. 2d 1345 (9th Cir. 1981)

Scheuer v. Rhodes,

416 U.S. 232, 94 8. Ct. 1683,

40 L. Ed. 2d 90 (1974)

United States v. Peres -Castro,

606 F. 2d 251 (9th Cir. 1979)

Vizzini v. Ford Motor Co.,

569 F.2d 754 (5th Cir. 1977)

Williams v. Slade,

431 F.2d 605 (Sth Cir. 1970)

Wood v. Strickland,

520 U.S. 308, 95 S.Ct. 992,

43 L. Ed. 2d 214 (1975)

17

27

State Case

Ball v. Rawles,

93 Cal. 222 (1892)

titution

United States Constitution,

Fourth Amendment 8, 11, 14,

1 20, 21.

Fourteenth Amendment 8, 12,

Federal Rule and Statute

Federal Rules of Criminal Procedure,

Rule 59(a)

Title 42, United States Code,

Section 1983 3, 6, 7, 8, 11,

21, 22, 23,

27, 30,

tate

California Government Code, § 814

California Penal Code, § 995

Texts

Kamisar, LaFave and Israel,

Modern Criminal Procedure

(5th Ed. 1980) pp. 28-40

6A Moore's Federal Practice

Section 59. 06 (2d ed. 1976)

vii.

18,

23,

14,

31

19

27

21

34

Prosser, Law of Torts

(4th Ed. 1971) p. 313

11 Wright and Miller,

Federal Practice and Procedure

Section 2814 (1973)

37, 38

34

No. 81-2155

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

DUDLEY D. VARNEY, SIDNEY J.

NUCKLES and RAYMOND D. INGLIN,

Petitioners,

vs.

GARY D. SMIDDY,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The respondent, Gary D. Smiddy, respect-

fully opposes the Petition for Writ of Certiorai

filed herein seeking review of the judgment and

opinion of the United States Court of Appeals for

the Ninth Circuit issued on August 7, 1981 and

amended on December 21, 1981.

STATEMENT OF THE CASE

On November 15, 1973, the respondent,

Gary D. Smiddy, was arrested without a warrant

at the direction of the petitioners Dudley Varney

and Sidney Nuckles. Varney and Nuckles were

officers of the Los Angeles Police Department

who had been responsible for investigating the

murder of a young woman, Linda Miller, whose

body had been discovered on the morning of

October 19, 1973.

The day after his arrest, a polygraph

examination wes administered to Smiddy by the

petitioner Raymond Inglin, a Los Angeles Police

Department examiner, following an agreement by

the police that Smiddy would be released if he

passed the test. Inglin concluded that Smiddy's

responses on the examination were deceptive; he

so advised Varney and Nuckles who then continued

to hold the respondent in custody.

A criminal complaint was subsequently filed

against Smiddy charging him with the murder of

Linda Miller. The respondent was continuously

incarcerated until December 15, 1973, when he

was released on bond. On January 23, 1974, the

complaint against him was dismissed in the Los

Angeles County Superior Court pursuant to Cal.

Penal Code 8995 on the grounds that Smiddy had

been committed without reasonable or probable

cause.

In October, 1976, Gary Smiddy filed the

instant case under the provisions of 42 U.S.C.

§ 1983 asserting that the actions of the petitioners

had caused him to be deprived of his federal

constitutional dine.” Specifically, the respon-

dent claimed that his arrest and detention had been

1/

Prior to filing this federal suit, Smiddy sub-

mitted a claim based on the same facts to the City

of Los Angeles pursuant to the California Tort

Claims Act, Cal. Govt. Code §814, et seq. The

respondent was unsuccessful in his efforts to find

counsel to represent him in a false arrest action

under that Act. es Transcript (hereafter

R. T.) 2471, 2568}.

effected without probable cause, in violation of

his rights under the Fourth Amendment as applied

to the states through the Fourteenth Amendment.

A lengthy jury trial was conducted in the

district court. The evidence presented by both

sides to the case centered on the course of the

petitioners' investigation leading to the respondent's

arrest, detention and prosecution. With some

notable 1 the evidence regarding the

2 /

For example, a significant conflict in the evi-

dence arose when the petitioner Varney testified

at trial that he had received information that a

traffic officer responsible for ticketing illegally

parked vehicles near the murder scene was a lazy

worker who did not diligently patrol his assigned

areas. [R. T. 976]. This testimony was offered to

counter an important point regarding the reason-

ableness of the petitioners' conclusion that Smiddy

had the opportunity to kill Linda Miller. In re-

buttal, the respondent offered the testimony of the

claimed source of Varney's information to the

effect that he had never had such a conversation

with Varney and that, in fact, the traffic officer

in question was very conscientious in the perform-

ance of his duties. [R. T. 1637-38]. A similar

dispute in the evidence concerned petitioners'

testimony, offered in explanation of their failure

to investigate an alternative murder suspect, that

the individual in question was a "quiet, little guy"

[R. T. 749, 1274]. The respondent produced

testimony that the individual was a strong, well-

built, six-foot-two. [R. T. 1286].

4. (cont. )

actions of the petitioners and the specific facts

and items of information developed during their

investigation was not disputed. The central con-

troversy at trial concerned Smiddy's claim that

the petitioners had so willfully distorted the facts

and information available to them and had so

recklessly and negligently conducted their investiga -

tion and examination procedures that they reached

patently unjustified and unreasonable conclusions

regarding the respondent's responsibility for the

death of Linda Miller and, on the basis of those

conclusions, caused the respondent to be arrested

and detained without probable cause. A summary

of the voluminous evidence and argument presented

on these issues at trial is included in the opinion

of the Court of Appeals set out in Appendix A to

the Petition for Certiorari.

2/ cont.)

The respondent argued at trial that these disputed

points represented the kind of intentional distortion

which characterized the petitioners' conduct through-

out their investigation.

The jury returned a verdict finding the

petitioners liable under §1983 and awarding the

respondent damages in the sum of $250,000. The

Court of Appeals for the Ninth Circuit affirmed the

judgments of liability as to each of the petitioners,

holding that the respondent had sufficiently estab-

lished the absence of probable cause for his arrest

and that the officers' "good faith" immunity de-

fenses had been properly rejected by the jury.

However, the court held that the petitioners should

have been presumed to be immune from liability

for any damages suffered by the respondent follow-

ing the filing of the criminal complaint against him.

The case was therefore remanded for a partial

retrial to determine what portion of the respon-

dent's damages were attributable to the period of

time prior to the filing of the complaint.

SUMMARY OF ARGUMENT

I,

In Parrat v. Taylor, 451 U. 8. 527, 101 8.

Ct. 1908, 68 L. Ed. 2d 420 (1981), this Court held

that a §1983 action alleging a deprivation of pro-

perty without due process will not lie where state

tort remedies provide a means of redress which

satisfies the requirements of procedural due pro-

cess. The petitioners’ assertion that the instant

case raises a substantial issue as to the scope of

| this Court's holding in Parrat is based on two

fundamentally erroneous premises. First,

petitioners inaccurately characterize this case

as one involving "simple negligence." In fact,

a substantial portion of the respondent's evidence

and argument in the trial court concerned the in-

tentional and reckless conduct of petitioners which

resulted in respondent's unconstitutional arrest

and incarceration, and no inference can be drawn

that negligence was the sole basis for the jury's

7.

finding of liability. Second, and more significantly,

the petitioners fail to recognize that the instant case

does not involve a bare due process claim such as

that advanced in Parrat. Rather, it involves spe-

cific constitutional rights guaranteed by the Fourth

Amendment that have been wholly incorporated

within the Due Process Clause of the Fourteenth

Amendment. The case law is well-established

that state remedies need not be exhausted prior to

pursuing such a §1983 action and that the federal

remedy under §1983 for such deprivations supple-

ments available state remedies. Thus, petitioners'

argument that the instant case presents unanswered

questions regarding the scope of this Court's hold-

ing in Parrat is without merit.

Il,

The question of probable cause which arises

in a §1983 action based on a claim of unlawful ar-

rest and detention involves an evaluation of the

reasonableness of police conduct in light of all the

surrounding facts and circumstances. Because

of the nature of this inquiry, the courts have con-

sistently held that the issue of probable cause in

such an action should be decided by the jury unless

the facts are undisputed and are not susceptible of

differing inferences or interpretations. The pe-

titioners' suggestion that the jury must be instructed

in such a manner as to limit its function to finding

the existence of specific facts while leaving the

final probable cause determination to the court is

contrary to this well-settled rule. Moreover, it

is clear that any such instruction would have been

inappropriate in this case because the central

dispute involved the reasonableness of the petitioners'

inferences and conclusions regarding probable cause

rather than the existence of particular facts. Re-

view by the Court on this issue is accordingly

unwarranted.

III.

Federal appellate courts have consistently

applied the principles enunciated in Gasoline

Products Co. v. Champlin Refinery Co., 283

U.S. 494, 51S.Ct. 513, 75 L. Ed. 1188 (1931)

when determining whether a case should be parti-

ally or fully remanded for retrial. Case authority

does not support petitioners' argument that the

Gasoline Products standard has been subjected to

disparate treatment among the circuits. Rather,

the case law indicates that outcomes vary based

upon the application of well-established standards

to the particular circumstances and facts of each

case. The limited remand in the instant case was

clearly justified under such standards because the

issue of the temporal apportionment of damages,

the only basis upon which the judgment was re-

versed, is clearly distinct and separable from the

settled issues of liability.

10.

ARGUMENT

I

THE INSTANT CASE INVOLVING A

$1983 CIVIL RIGHTS CLAIM BASED

ON THE SPECIFIC CONSTITUTIONAL

GUARANTEES OF THE FOURTH

AMENDMENT DOES NOT POSE ANY

ISSUE WARRANTING REVIEW BY

THIS COURT

During its last term, this Court decided,

with only a single partial dissent, the case of

Parrat z. Taylor, 451 U. 8. 527, 101 8. Ct. 1908,

68 L. Ed. 2d 420 (1981). That decision, which

concerned a claim under 42 U. S. C. 81983 based

on an alleged negligent deprivation of a prisoner's

property, represented a logice! and limited re-

sponse to iwo difficult and recurring questions

regarding the proper scope of §1983 litigation.

First, the Court in Parrat settled the ques-

tion as to whether negligent conduct under color

of state law could ever form the basis for liability

under §1983, holding that nothing in the statute

11.

requires a particular state of mind on the part of

a defendant or precludes recovery where a defen-

dant's negligence in fact deprives a plaintiff of

sorne constitutional or statutory right. Id. at

$94-535, 101 8. Ct. at 1912-1913. Secondly, the

Court held that, with respect to a deprivation of

property such as that alleged in the case before it,

the cefendant prison official's negligence did not

represent a violation of constitutional proportions

because the remedies afforded to the plaintiff by

state law were sufficient to satisfy any Fourteenth

Amendment due process interests implicated by

the defendant's conduct or by the plaintiff's loss.

Id. at 543-544, 101 8. Ct. at 1917. In so holding,

the Court reasonably eliminated the possibility

that every injury or deprivation of property, no

matter how minimal or negligible, might become

the subject of a federal civil rights action whenever

a state official was involved.

The argument advanced by the petitioners

here is that the instant case presents a substantial

12.

issue regarding the scope of this Court's decision

in Parrat as applied to cases involving the alleged

negligent violation of due process rights. This

argument is premised on two basic errors involv-

ing misinterpretation both of the nature of this

case and of the fundamental analytical principles

which underlie the Parrat decision.

First, the petitioners erroneously assume

that the respondent's §1983 claim rested on an

assertion of simple negligence by the petitioners

in conducting the investigation and examination

which led to Smiddy's arrest and incarceration.

In fact, a substantial portion of the respondent's

evidence and argument in the trial court concerned

intentional and eckless conduct on the part of the

petitioners involving the distortion and, in some

instances, falsification of facts, a blatant disre-

gard of basic fairness and professional standards,

and a wilful indifference to Smiddy's rights and

interests. As the petitioners recognize, at the

time this case was decided the law in the Ninth

13.

Circuit assumed that even a showing of mere

negligence could support a §1983 claim.

Navarette v, Enomoto, 536 F. 2d 277 (9th Cir.

1976), reversed on other grounds sub nom,

Procunier v. Navarette, 434 U.S, 555, 98 S.Ct.

855, 55 L. Ed. 2d 24 (1978). See Petition for Writ

of Certiorari, p. 4 and Appellants' Opening Brief

below, p. 70. Accordingly, neither the jury nor

the Court of Appeals was required to draw any

conclusion as to the specific state of mind of

the petitioners, and no inference can be drawn that

the finding of liability in this case was based on

"simple negligence. "

More importantly, the petitioners argument

regarding the potentially broad scope of the Parrat

decision and its application to bar liability in this

case fails to recognize the difference between a

civil rights claim such as the respondent's, which

is based on the specific constitutional guarantees

of the Fourth Amendment as applied to the states

through the Fourteenth Amendment, and a bare

14,

due process claim such as that advanced in Parrat.

The distinction is a crucial one; indeed, it provided

the starting point for this Court's analysis in Parrat:

The only deprivation respondent

alleges in his complaint is that "his

rights under the Fourteenth Amend-

ment of the Constitution of the United

States were violated. That he was de-

prived of his property and Due Process

of Law." App., at 8. As such, respon-

dent's claims differ from the claims

which were before us in Monroe v. Pape,

supra, which involved violations of the

Fourth Amendment, and the claims

presented in Estelle v. Gamble, 429

U. S. 97, 97S.Ct. 285, 50 L. Ed. 2d

251 (1976), which involved alleged vio-

lations of the Eighth Amendment. Both

of these Amendments have been held

applicable to the States by virtue of

the adoption of the Fourteenth Amendment.

15.

See Mapp v. Ohio, 367 U. S. 643, 81

S.Ct. 1684, 6 L. Ed. 2d 1081 (1961);

Robinson v. California, 370 U. S. 660,

82 S.Ct. 1417, 8 L. Ed. 2e (1962). Re-

spondent here refers to no other right,

privilege, or immunity secured by the

Constitution or federal laws other than

the Due Process Clause of the Four-

teenth Amendment simpliciter... .

The Fourteenth Amendment pro-

tects only against deprivations without

due process of law. Baker v. McCollan,

supra, 443 U.S, at 145, 99 8. Ct. at

2695. Our inquiry therefore must

focus on whether the respondent has

suffered a deprivation of property

without due process of law. In particu-

lar, we must decide whether the tort

remedies which the State of Nebraska

provides as a means of redress for

property deprivations satisfy the

18.

requirements of procedural due

process.

451 U.S. at 536-537, 101 S.Ct. at 1913-1914,

See Paulv. Davis, 424 U.S. 693, 700-701, 96

S.Ct. 1155, 1160, 47 L. Ed. 2d 405 (1976).

Ignoring the significance of this basic per-

mise underlying the scope and application of the

Parrat decision, the petitioners argue that this

Court should grant review in the instant case and

should interpret Parrat in such a manner as to

reach the conclusion that, because the State of

California provides a tort remedy for persons

subjected to common-law false arrest and im-

prisonment, no constitutional violation of the

respondent's rights occurred when the petitioners

caused his unlawful arrest and detention without

probable cause. It is clear that such a proposi-

tion does not warrant consideration, much less

adoption, by this Court.

It was long ago settled in the seminal case

of Monroe v. Pape, 365 U. S. 167, 81 8. Ct. 473,

17.

5 L. Ed. 2d 492 (1961), that the existence of a

cause of action under §1983 based on an alleged

violation of Fourth Amendment rights does not

turn on the availability of adequate remedial

procedures under state law: "It is no answer that

the State has a law which if enforced would give

relief. The federal remedy is supplementary to

the state remedy, and the latter need not be first

sought and refused before the federal one is in-

voked. Id. at 183, 81 8. Ct. at 482. Moreover,

the Court in Monroe recognized that a §1983 claim

arising out of a Fourth Amendment violation may

properly be asserted without regard to the specific

intent of the defendant state official. Id. at 187,

81S.Ct. at 494. Cf. Baker v. McCollan, 443

U. S. 137, 99S.Ct. 2689, 61 L. Ed. 2d 433 dere).

3/

Baker held that an official's negligent failure to

inve te the plaintiff's claims of misidentifica-

tion following his arrest did not amount to a con-

stitutional violation. The Court's analysis was

specifically premised on the fact that the arrest

was made pursuant to a valid warrant and thet no

Fourth Amendment issue was presented.

* (cont. )

Nothing in this Court's decision in Parrat

remotely suggests any divergence from either of

these principles. To the contrary, Parrat's

specific reliance on Monroe in reaching the con-

clusion that §1983 itself does not include any

particular state of mind requirement, 451 U.S.

at 534-535, 101 S.Ct. at 1912, and the Court's

careful distinction, quoted above, of the specific

Fourth Amendment claim in Monroe trom the due

process Claim asserted in Parrat clearly acknow-

ledge the continuing validity of the principles

established in Monroe regarding Fourth Amend-

ment §1983 actions.

The petitioners contend that, despite the

fact that respondent's claim here was unquestionably

3/ (cont. )

443 U.S. at 143-144, 99 S.Ct. at 2694. The

petitioners' reliance on Baker as a "logical pre-

cusor" to the instant case (Petition for Writ of

Certiorari, p. 9) is accordingly misplaced. See

Powe v. City of Chica 664 F. 2d 639, 644(7th

Cir. Ist) nere ar 75 i is based on invalid

warrant Baker does not apply to preclude liability).

19.

based on the Fourth Amendment's specific guaran-

tees against unlawful arrest and detention, the

instant case should be governed by a different

standard because, unlike the defendants' behavior

in Monroe, the petitioners' conduct did not so

sufficiently ''shock the conscience" as to constitute

a due process violation. Rochin v. California,

342 U.S, 165, 172, 72 S.Ct. 205, 209, 96 L. Ed.

183 (1952). Again, the petitioners fail to appre-

ciate the distinction between those specific con-

stitutional rights which have been wholly incor-

porated within the Due Process Clause of the

Fourteenth Amendment and the broader, but less

defined, substantive "liberty" rights which have

been held to arise out of the Due Process Clause

itself. See, e.g., Rochin v. California, supra

(stomach-pumping of suspect); Black v. Stephens,

662 F.2d 181 (3d Cir. 1981) (excessive force by

police officer); Rutledge v. Arizona Board of

Regents, 660 F.2d 1345, 1352 (9th Cir. 1981)

(assault by state official); Hall z. Tauney, 621

20.

F. 2d 607, 613 (4th Cir. 1980) (corporal punishment).

See generally Baker v. McCollan, supra, Blackmun

J., concurring, 443 U.S, at 147, 99S.Ct. at 2696;

Ka misar, LaFave and Israel, Modern Criminal

Procedure (5th Ed. 1980), pp. 28-40.

With regard to §1983 actions based on viola-

tions of the latter kind of due process rights, an

issue may arise as to whether the adequate state

remedy reasoning of Parrat should be applied to

bar liability for substantive liberty“ deprivations

as well as property deprivations. See Rutledge

v. Arizona Board of Regents, supra; Meshkov v.

Abington Township, 517 F.Supp. 1280 (E. D. Pa.

i981); Howse v. DeBerry Correctional Institute,

4/

537 F.Supp. 1177(M.D. Tenn. 1982).~ With

4/

This Court has granted a petition for review

2 question of Parrat's applicabilit

in a case involving a substantive due process claim

based on a state's failure to follow its own statutory

election procedures. Duncan v. ss, 657

F.2d 691 (5th Cir. 198T), ° 0 U.S.

L. W. 3668 (1982).

21.

respect to a Fourth Amendment claim such as the

respondent's, however, the Parrat procedural due

process analysis is simply irrelevant.

Any doubt in this matter has clearly been

resolved by the Court's recent decision in Patsy

v. Florida Board of Regents, U. 8.

S. t. U.. Ed. 2d (No. 80-1874, June

21, 1982). In that case, the Court held that there

is no requirement that state administrative reme-

dies be exhausted as a precondition to an action

under §1983. The specific constitutional claim

involved in Patsy was that the plaintiff had been

denied employment opportunities on the basis of

race and sex, in violation of her right to equal

protection. No mention of Parrat is made in the

opinion, and the Court squarely rejected the pro-

position that the adequacy and appropriateness of

available administrative remedies should be

considered in determining whether a §1983 claim

may be asserted. Id. at , slip opinion, p. 1.

This decision conclusively establishes the

essentially limited scope of the reasoning and the

holding in Parrat. In light of this development,

as well as the distinguishing factors previously

discussed, the petitioners’ suggestion that this

Court should grant review in the instant case to

consider the question of Parrat's applicability is

patently without merit.

Il

THE PARAMOUNT ROLE OF THE

JURY IN DECIDING DISPUTED

QUESTIONS OF REASONABLENESS

IN $1983 ACTIONS IS WELL-ESTAB-

LISHED AND UNIFORMLY ACCEPTED

BY THE FEDERAL COURTS. THE

INSTRUCTIONS IN THIS CASE PRO-

PERLY SUBMITTED SUCH QUESTIONS

TO THE JURY, AND NO ISSUE MERIT-

ING REVIEW BY THIS COURT IS

POSED BY THOSE INSTRUCTIONS.

The respondent's §1983 claim in the instant

case was based on his warrantless arrest and

detention without probable cause in violation of the

Fourth Amendment. The existence of probable

cause was therefore at issue as an element of the

23.

constitutional a underlying the respondent's

5

civil rights action. Moreover, since this

Court's decision in Pierson v. Ray, 386 U.S. 547,

557, 87S.Ct. 1213, 1219, 18 L. Ed. 2d 288 (1967),

it has been established that a defense of good

faith and probable cause is available to a police

officer in a §1983 suit based on a claim of unlawful

arrest and detention. This defense is the counter-

part of the more general principle of good faith"

qualified immunity recognized by this Court in

other types of §1933 cases involving various kinds

of governmental officials. Procunier v. Navarette,

5/

The jury was acc instructed that an

individual has a c 1 right to be free

from an arrest without probable cause (Petition .

for Certiorari, Appendix C-1) and that an arrest

based on probable cause does not violate any

constitutional right (Appendix C-2). Where, as

in the instant case, an arrest is made without a

warrant, an affirmative showing of the existence

of probable cause must be made in order to

the arrest. Beck v. State of Ohio, 379 U.S, 89,

85 S.Ct. 223 ITU Ea. N Taz 11984); United States

v. See Eller Heke 606 F. 2d 251, 253 (Sth Cir. och.

See Cilker v. Baker, 576 F.2d 245, 246 (9th Cir.

1976); Martin inte, 463 F.2d 464, 469 (10th

Cir. 1972).

24.

434 U.S, 555, 561, 98 S.Ct. 855, 859, 55 L. Ed.

2d 24 (1978); Gilker v. Baker, 576 F. 2d 245, 247

(9th Cir. 1978). See Glasson v. City of Louisville,

518 F.2d 899, 907-908 (6th Cir.), cert. denied,

423 U.S. 930, 96 S.Ct. 280, 46 L. Ed. 2d 258 (1975).

The petitioners in this case asserted such a de-

fense, thereby further placing in issue the question

of probable cause.

The concept of const cut ional probable cause

is grounded in principles of reasonableness and

prudence:

‘Probable cause for a warrantless

arrest exists where facts known to the

officers or about which they have reli-

able information are sufficient in them-

selves to warrant a man of reasonable

prudence and caution in believing that

a crime has been or is being committed

dy the person to be arrested. Brinegar

v. United States, 338 U.S, 160, 175-76,

69S.Ct. 1302 (1949); Carroll v.

25.

United States, 267 U.S, 132, 162, 45

S.Ct. 280 (1925)...

Linn v. Garcia, 531 F.2d 855, 861 (8th Cir. 1976).

See, Beck v. Ohio, 379 U.S, 89, 91, 85 S.Ct. 223,

225 L. Ed. 2d 142 (1964). Where the probable

cause issue arises in the context of a "good faith"

defense to §1983 liability, objective reasonableness

again provides the controlling standard. Pierson

vy. Ray, supra, 386 U.S, at 557, 87S.Ct. at 1219;

Gilker v. Baker, supra. Application of this

standard necessarily requires an evaluation of all

the facts and circumstances surrounding an arrest

and a judgment as to the reasonableness of police

conduct in light of those facts. See Wood v.

Strickland, 420 U.S, 308, 321, 95 S.Ct. 992,

1000, 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes,

416 U.S, 232, 247-248, 94 8. Ct. 1683, 1692, 40

L. Ed. 2d 90 (1974). !

Because of the nature of such an inquiry, it

has consistently and uniformly been recognized

that the issue of probable cause in a §1983 action

is a matter to be resolved by the jury unless the

facts, and the inferences to be drawn from the

facts, are not disputed. «As stated by the Court

of Appeals for the Ninth Circuit:

6/ (cont. )

in Fourth Amendment §1983 actions and

that the Court should review in this case to

cla the difference ween these issues. In

fact, however, no such confusion appears in the

case law. The two matters are certainly inter-

twined, as is indicated by the fact that the defense

rec d in Pierson is characterized as one of

"good faith cause." 386 U.S, at 557,

87S.Ct. at 1219. However, the courts have had

no difficulty in appreciating the distinction that,

even if as a matter of law constitutional probable

cause did not exist so as t» justify an arrest, a

defendant may still avoid if he reasonably

believed that the arrest was la See e.g.,

Jaroslawicz v. Seedman, 528 F. 2d 727, d

° $ F. Nelson, 518 F. 2d 879,

882 (7th Cir.

~I075); Bivens v, Six Un own Named

Agents, 456 F. 2d 1339. TU U d C. TTF ton

; as well as the Court of Appeals decision

7 (Petition for Certiorari, Appen-

A- .

27.

A determination of probable cause

involves the weighing of many factors.

When, as here, reasonable persons might

reach different conciusions about the facts,

the establishment of those facts is for

the jury, and the existence of probable

cause is likewise for the jury, upon a

proper instruction about the law.

Gilker v, Baker, supra, 576 F.2d at 247. Accord,

Nix v. Sweeney, 573 F. 2d 998 (8th Cir. 1978),

cert. denied, 444 U.S, 929, 100 8. Ct. 271, 62

L. Ed. 2d 186 (1979); Linn v. Garcia, 331 F. 2d

855, 861 (8th Cir. 1976); Draeger v. Grand

- Central, Inc., 504 F. 2d 142, 144 (10th Cir. 1974);

Giordano v. Lee, 434 F.2d 1227, 1230 (8th Cir. 1970),

cert. denied, 403 U.S. 931, 91 8. Ct. 2250, 20 L. Ed.

2d 709 (1971); Beauregard v. Wingard, 362 F. 20 901,

dos (9th Cir. 1966). See Banish v, Locks, 414 F. 20

638, 641 (7th Cir. 1969).

Pursuant to this well-settled rule, the

district court in the instant case submitted the

28.

question of probable cause to the jury, instructing

them as to the definition and meaning of that con-

cept. (Petition for Certiorari, Appendix C-3).

The jury was further instructed that an arrest

based on probable cause was not unlawful and that

the defendants could not be found liable if they

reasonably believed, under all the circumstances,

that their conduct was lawful. (Appendix C-2,

C-3). The petitioners here argue that the Court

should grant review in this case and hold that the

instructions to the jury were erroneous because

they did not limit the jury's role to the simple

resolution of factual disputes and reserve to the

court the ultimate conclusion as to what facts would

legally establish probable cause. It is respectfully

submitted that this suggestion is plainly without

merit.

The essential premise of the petitioners'

argument is that the probable cause issue should

properly be decided by the court as a matter of

law rather than by "the arbitrament of a jury."

29.

Ball v. Rawles, 93 Cal. 222, 228-229 (1892).

(Petition for Certiorari, p. 22). This proposition,

however, is flatly contrary to the settled law that

the issue of probable cause in a §1983 action must

be submitted to the jury whenever the facts are

disputed or are subject to different inferences or

conclusions. See Gilker v. Baker and other cases

cited, supra.

The petitioners' further contention that the

jury in a civil rights action must be provided with

an instruction setting forth the specific facts which,

if true, would justify the arrest and directing that

a finding of probable cause be made on that basis

is equally unworthy of this Court's consideration.

The petitioners rely on extensive citations to cases

and authorities involving the common-law torts of

false arrest and malicious prosecution. Their

view of the limited role of the jury in such actions

is based on strict principles of common law plead-

ing and proof which severely restrict a plaintiff's

right to recovery on such theories. See, e.g.,

30.

Ball v. Rawles, supra, 93 Cal. at 229-230. Inso-

far as they might act.to unduly burden or restrain a

plaintiff, such principles are not appropriately ap-

plied in a §1983 case where remedies must be liber-

ally construed and immunity from liability limited.

Gomez v. Toledo, 446 U.S. 635, 638-639, 100 S. Ct.

1920, 64 L. Ed. 2d 572 (1980); Owen v. City of

Independence, 445 U.S. 622, 100 8. Ct. 1398, 63

L. Ed. 2d 673 (1980). Certainly, nothing in the deci-

sion of this Court or in the decisions of the lower

courts holding that probable cause is a jury question

in a federal civil rights action suggest that the jury's

consideration of the issue is to be so circumscribed

or tha. 9 a detailed and restrictive instruction is

required.

U

Contrary to the petitioners suggestion, the Courts

of Appeals are not divided in their treatment of prob -

able cause as a jury issue in §1983 actions.

414 1 638, 641-642 (7th Cir. 1

ci on petitioners as an example of a probable

— etermination employing the enumeration of

specific information the existence of which would

establish probable cause" (Petition for Certiorari,

p. 24), was a case in which the court decided prob-

able cause on undisputed facts and wrote a memo-

randum of decision articulating the more important

31. (cont. )

Moreover, an instruction directing the jury

that it must find probable cause on the basis of

specific facts would clearly have been inappropri-

ate in the instant case. The central dispute at

trial was not whether the petitioners did or did

not possess specific items of factual information

but rather whether the inferences and conclusions

which they drew from those facts were reasonable

under all the circumstances. This is precisely

the kind of dispute contemplated by the federal

courts when they have consistently recognized that

the question of probable cause in a §1983 case should

be decided by the jury in light of all the facts, apply-

ing ordinary principles of reasonableness and

7/ = (cont. )

factual bases for its conclusions. No question of

jury instructions was addressed or considered in

the case. The other two cases cited by petitioners

to suggest some differing approach among the cir-

cuits clearly involved common-law tort actions

rather than federal civil rights claims. esmith

* 318 F. 2d 110, 123 (Sth Cir. 1 3

ery Ward Inc. v. F 199 F. 2d 720,

r. .

prudence. See, Gilker v. Baker, supra, 576 F. 2d

at 247; Nix v. Sweeney, supra, 573 F. ad at poate

8

Giordano x. Lee, supra, 434 F. ad at 1231. It

is therefore respectfully submitted that the peti-

tioners' request for review on this issue should

be rejected.

8/

™ The probable cause instruction proposed by the

petitioners in the trial court (Petition for Certiorari,

pp. 18-19) demonstrates how inapplicable their argu-

ment is to the present case. The instruction listed

five specific items of information, the first being

that the respondent was seen leaving a restaurant

with the murder victim, and the ether four relating

to the time of the victim's death. The instruction

was properly rejected because, even viewed in

isolation, the listed items would not amount to

probable cause. Even more importantly, the real

issues of fact regarding probable cause which were

raised at the trial were in no addressed by the

proposed instruction because it not allow for the

jury's consideration of the reasonableness of the

tioners' conclusions as to matters such as time

of death or the respondent's involvement in the

c

em.

III

THE STANDARDS FOR DETERMINING

THE PROPRIETY OF A REMAND FOR

PARTIAL RETRIAL ARE WELL-

SETTLED, AND NO SIGNIFICANT

QUESTION REGARDING THEIR APPLI-

CATION IS RAISED BY THIS CASE

In oline ucts Com * lin

Refinery Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.

Ed. 1188 (1931), this Court held that where an

appellate court finds error to have affected a single

issue at trial, the court has the discretion to re-

mand the cause for a new trial limited in scope to

that one issue. See also Fed. R. Civ. P. 59(a).

Subsequent to the decision in Gasoline Products,

the federal appellate courts have exercised this

discretion in a consistent and evenhanded manner

by applying, on a case by case basis, the principles

enunciated in that case. As developed by the

courts, the well-established test for the propriety

of a limited remand involves an analysis of the

following factors: (1) is the issue to be retried

34.

separable and distinct from the other issues in the

case; (2) did the error below affect the determina-

tion of any other issues; and (3) would a partial

new trial cause injustice or create confusion and

uncertainty. See 6A Moore's Federal Practice

$59.06 (2d ed. 1976); 11 Wright & Miller, Federal

Parctice and Procedure §2814 (1973); and the

numerous cases cited therein.

Contrary to the petitioners' assertions, these

principles and their application have not received

disparate treatment by the various federa! circuits.

Each of the cases cited by the petitioners, while

reaching different results based on the particular

facts and circumstances involved, applies the same

basic standards and analysis. See, e.g., Lies x.

Farrel Lines, Inc, 641 F.2d 765, 775-776 (9th

Cir. 1981); Bosse v. Litton Unit Handling Systems,

646 F. 2d 689, 694 (ist Cir. 1981); Vizzini x. Ford

Motor Sg., 569 F. 2d 754, 760-761 (5th Cir. 1977);

Williams v. Slade, 431 F.2d 605, 608-609 (Sth Cir.

1970). The suggestion that the Fifth Circuit has,

35.

in effect, adopted a test which precludes a partial

remand on the issue of damages whenever questions

of causation are involved in the reversal is not sup-

ported by case law. See Nat Harrison Associates,

Inc. v. Gulf States Utilities Co., 491 F. 2d 578, 588

(5th Cir. 1974) in which the court ordered a limited

retrial where the reversal was based in part on de-

fects regarding proof of causation in the calculation

of damages. Cf. Fury Imports v. Shakespeare Co.,

554 F. 2d 1376, 1387-1388 (5th Cir. 1977).

Moreover, even assuming that such a test

had been adopted in some circuits but not in others,

the instant case would not present a substantial issue

regarding the application of that standard. In finding

petitioners liable for damages to the respondent, the

jury below necessarily made the factual determina-

tions that (1) the petitioners caused Smiddy to be

deprived of his constitutional right to be free from

arrest and detention not based upon probable cause,

and (2) Smiddy suffered damages as a result of that

deprivation.

36.

The Ninth Circuit affirmed the jury's factual

determination of petitioners' liability, including the

finding of causation. The judgment against the

petitioners was reversed only to the extent that it

presumably included darnages suffered after the

filing of the criminal complaint. The court's

limited remand for determination of the amount of

damages attributable to the period prior to the filing

of the charge in no way implicates or disturbs the

jury's findings on the basic questions of causation

9/

which were implicit in the verdict of liability. ~

9/

Ot course, the task of apportioning the respon-

dent's damages may involve some determination

of questions in the nature of ceusation, and the

opinion of the Court of Appeals describes the re-

mand as requiring a consideration of proximate

causation." (Appendix A to Petition for Certiorari,

p. A-13). Compare the characterization of this

Under these circumstances, it is clear that the

remand for a partial retrial in this case was

appropriate under any reasonable interpretation

or application of Gasoline Products Company,

supra. lt is therefore respectfully submitted

that the petitioners' request for review of this

issue should be denied.

9/ (cont.)

of the feasibility and practical convenience

of spli up total harm into separate

parts which may be attributed to each of

two or more causes.

Prosser, Law of by tap —1 Ed. 1 p. 313.

R of how question apportionment

pay cow gb ny it is clearly

separable’ from the issue dur

N e ar 31

Products Lor

(1931).

CONCLUSION

For all of the foregoing reasons, it is respect-

fully submitted that the petition for writ of certiorari

should be denied.

DATED: July 28, 1982

Respectfully submitted,

ROBERT M. TALCOTT

TALCOTT, VANDEVELDE

& WOEHRLE

Counsel of Record for

Respondent

JOHN H. BISBEE

BISBEE & NAGAN

Counsel for Respondent