# Opposition — Varney v. Smiddy

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 829

## Text

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

*
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0051%3A2. Public record. Not legal advice.