Petition for Writ of Certiorari — Wyatt v. Cole

Baprerse Court, US

FILED

93-438 1. “|| sep 21 1098

ac pa Gee

In The

Supreme Court of the United States

October Term, 1993

HOWARD WYATT,

Petitioner,

VERSUS

BILL COLE and JOHN ROBBINS, II

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OF COUNSEL:

JIM WAIDE

WAIDE LAW OFFICE

POST OFFICE BOX 1357

TUPELO, MS 38802

601/842-7324

(Counsel of Record)

DOUGLAS M. MAGEE

ATTORNEY AT LAW

POST OFFICE BOX 155

MENDENHALL, MS 39114

601/847-2446

Attomeys for Petitioner

i.

QUESTION PRESENTED

1. Do private parties, who initiate use of an unconstitutional

Statute, have available the qualified immunity defense of public

Officials?

2. Should 42 USC Sec. 1983 be construed to provide a defense

of qualified immunity for private parties, when no such immunity is

contained in the language of the statute?

3. Should this Court judicially declare an immunity for private

parties who, through ignorance, violate constitutional rights when

such immunity is at the expense of the innocent victims of the

constitutional violation?

4. Does the United States Court of Appeals have authority to

disregard the majority opinion of this Court?

5. When a four Justice plurality of this Court holds private

parties are not entitled to qualified immunity and a two Justice

concurrence joins the plurality opinion, may a Court of Appeals,

nevertheless, grant qualified immunity?

TABLE OF CONTENTS

PAGE 7

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Argument

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TABLE OF AUTHORITIES

CASES PAGE

Day & Zimmerman, Inc. V. Challoner, 423 U.S. 3

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Harlow v. Fitzgerald, 457 U.S. 800, 814,

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Klaxon & Co. v. Stentor Elect. Mfg. Co., 313

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Wyatt v. Cole,__S. Ct.__, 118 L. Ed. 2d 504,

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Wyatt v. Cole, 994 F. 2d 1113 (Sth Cir. 1993) oo... eee ceeceeeeeee 3

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution Amendment Fourteen ................. passim

FEDERAL STATUTE INVOLVED

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OTHER AUTHORITIES

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In The

Supreme Court of the United States

October Term, 1993

HOWARD WYATT,

Petitioner,

VERSUS

BILL COLE and JOHN ROBBINS, II

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINION BELOW

The Opinion of the United States Court of Appeals for the Fifth

Circuit is reported at 994 F. 2d 1113 (Sth Cir. 1993). It is attached as

an Appendix.

JURISDICTION

This Court has jurisdiction to review the decision of the United

States Court of Appeals for the Fifth Circuit entered on June 25, 1993.

This Court has jurisdiction to review by a Writ of Certiorari under 28

USC Section 1254.

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision involved is United States Constitu-

2

tion Amendment Fourteen, which says:

"...(n) or shall any state deprive any person of life,

liberty or proper ~vithout due process of law."

FEDERAL STATUTE INVOLVED

The federal statute involved is 42 USC Section 1983, which

Says:

“Every person who, under color of any statute, ordinance,

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

the District of Columbia, subjects or causes to be sub-

jected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

nghts, privileges or immunities secured by the Constitu-

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

action at law, suit in equity, or other proper proceeding

for redress...."

STATEMENT OF THE CASE

Respondent, Bill Cole, hired Respondent, Attomey John Robbins,

il to obtain an ex parte court order for the seizure of cattle and other

personal property from Cole's business partner, Petitioner Howard

Wyatt. Attorney Robbins utilized the Mississippi Replevin Statute

(Miss. Code Ann., Sec. 11-37-101) to accomplish the hearingless

seizure. After obtaining an ex parte court order, as allowed by the

Mississippi Replevin Statute, Cole, Robbins and various law en-

forcement officials appeared on the property of Peptitioner Wyatt and

forcibly took possession of 23 head of cattle and other property which

was owned by Wyatt and Cole under a partnership agreement. R.,

1234-1236. The hearingless seizure of Wyatt's property by force

caused him to suffer severe psychological trauma, and he was hospi-

talized.

Following a post-deprivation hearing, a state judge ordered the

Respondent Cole to return the property or its value to Petitioner, but

Cole ignored the order. R., 1234-1236.

Petitioner Wyatt filed suit in the United States District Court for

NE a I ct Ec AT ES AS NO OE ec. ee ee ee

the Southem District of Mississippi, against governmental officials

~who had carried out the hearingless seizure and against private

defendants, Cole and Robbins. The District Cour declared the Re-

plevin statue (Miss. Code Ann., Sec. 11-37-101) under which

Petitioner's property was seized unconstitutional. Wyazt v. Cole, 710 F.

Supp. 180. However, the District Court held Plaintiff was not entitled

to damages from either the officials who carried out the seizure or from

the private Defendants Cole and Robbins. The District Court held both

the officials and the private parties had qualified immunity. Supp. R.,

3-7; R., 1647.

Wyatt appealed the grant of qualified immunity to the private

Defendants to the United States Court of Appeals for the Fifth Circuit.

Citing its own precedents, but noting contrary rulings from other

Courts of Appeals, the Fifth Circuit upheld the private Defendants’

qualified immunity defense. 928 F. 2d 718. This Court granted

certiorari to resolve the conflict between the Courts of Appeals as to

whether the qualified immunity doctrine applies in favor of a private

party..___ U. S._____, 1 16 L.. Ed. 2d 25, 112 S. Ct. 47 (1991). On May

18, 1992, this Court held that private parties are not entitled to qualified

immunity, but left open the question of whether some type of probable

Cause or subjective good faith defense is available to private parties

who violate constitutional rights. U. Smee, 1925. CL 1877, 118

L. Ed. 2d 504 (1992).

On remand, the United States Coun of Appeals for the Fifth

Circuit, in opinion of June 25, 1993, granted the private defendants the

very same qualified immunity which the Court had just held is

unavailable to them. 994 F. 2d 1113 (Sth Cir. 1993).

ARGUMENT

THIS COURT SHOULD GRANT THE WRIT, SINCE

THE FIFTH CIRCUIT FAILED TO FOLLOW THIS ~

COURT'S MAJORITY.

No serious person can deny that the decision of the United States

Court of Appeals for the Fifth Circuit conflicts with the opinions of a

majority of this Court.

On page 10 of the slip opinion, Justice O'Connor, speaking for _

—— ea

four Justices, succintly states this Court's holding:

"The precise issue encompassed in this question and the

only issue decided by the lower court is whether quali-

fied immunity, as enunciated in Harlow, supra, is

available for private defendants faced with Sec. 1983

liability for invoking a state replevin, garnishment or

attachment statute, The answer is no... .”

The concurring opinion of Justice Kennedy, joined by Justice

Scalia, specifically joined Justice O'Connor's opinion.

On remand, the Fifth Circuit held:

"We now hold that Plaintiffs seeking to hold private

actors liable under Luger v. Edmondson Oil Co., 102 S.

Ct. 2744 (1982), must demonstrate that Defendants

failed to act in good faith in invoking the unconstitutional

State procedures. Because Wyait has not shown that

Cole or Robbins either knew or should have known that

Mississippi's replevin statute was unconstitutional prior

to its invalidation in April, 1989, we affirm the District

Court's judgment."

Surely certiorari should be granted when the United States Court

of Appeals declines to follow a binding precedent of this Cour. Day

& Simmerman, Inc. v. Challoner, 423 U. S. 3 (1975), reversed the

United States Court of Appeals for the Fifth Circuit when that Court

declined to follow this Court's choice of law rules enunciated in

Klaxon & Co. v. Stentor Elect. Mfg. Co., 313 U.S. 487 (1941). This

case is more compelling than Challoner for granting the Wnt. Here,

the Court of Appeals has decliied to follow the decision of this Coun

in this very case, on the very issue this Court specifically decided.

The Court of Appeals’ reading together the dissenting and con-

curring opinion to form a so called "majority" in favor of qualified

immunity for private parties is bizarre. The concurming opinion spe-

cifically joins Justice O'Connor's opinion. Six members of this Court

have agreed that the qualified immunity of Harlow v. Fitzgerald, 457

U. S. 800 (1982), is unavailable to private parties. A lower court has no

authority to say otherwise.

52 64 SES Eee Oe eee a ee ee ae ae ele

The result reached by the Count of Appeals for the Fifth Circuit is

fundamentally at odds with the goal of 42 USC Sec. 1983 of providing

redress for parties injured by violation of constitutional nghts. Through

various immunity doctrines, all defendants who might be held liable to

the innocent Wyatt for the taking of his property without due process

of law have been immunized. The state of Mississippi, which enacted

the unconstitutional statute, is immunized by virtue of the Eleventh

Amendment. The judge who authorized the issuance of the Writ, is

immunized by his judicial office. The Sheriff who carried out the Wnt

is immunized because he was merely following the orders of the judge.

When the Fifth Circuit then immunizes the private parties, it has totally

immunized every party who violates constitutional rights at the expense

of the innocent victim. It is not sound judicial construction to immunize

wrongdoers, even those who act only through ignorance, at the expense

of the innocent. To do so in the face of the opinion of a six member

majority of this Court is an outrage.

Respectfully submitted,

JIM WAIDE

(Counsel of Record)

WAIDE LAW OFFICE

POST OFFICE BOX 1357

TUPELO, MS 38802

601/842-7324

DOUGLAS M. MAGEE

ATTORNEY AT LAW

POST OFFICE BOX 155

MENDENHALL, MS 39114

601/847-2446

Attomeys for Petitioner

DATED: 9-a\-13

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Sty oe te. =A nn he awe ete ae a ee

No.

In The

Supreme Court of the United States

October Term, 1993

HOWARD WYATT,

Petitioner,

VERSUS

BILL COLE and JOHN ROBBINS, II

Respondents.

APPENDIX

OF COUNSEL:

JIM WAIDE

WAIDE LAW OFFICE

POST OFFICE BOX 1357

TUPELO, MS 38802

601/842-7324

(Counsel of Record)

DOUGLAS M. MAGEE

ATTORNEY AT LAW

POST OFFICE BOX 155

MENDENHALL, MS 39114

601/847-2446

Attomeys for Petitioner

i, i

7

United States Court Of Appeals

For Che Fifth Circuit

NO. 90-1058

HOWARD L. WYATT,

Plaintiff-Appellant,

versus

BILL COLE, JOHN ROBBINS, II,

Defendants-Appellees

Appeal from the United States District Court

For the Southern District of Mississippi

ON REMAND FROM THE SUPREME COURT OF THE

UNITED STATES Before JOHNSON, WILLIAMS, AND

HIGGINBOTHAM, Circuit Judges. HIGGINBOTHAM, Circuit

Judge:

This 1983 suit retums to this panel on remand from the

Supreme Court. In our first opinion, we affirmed the district court's

grant of qualified immunity to defendants Cole and Robbins. Wyazt v.

Cole, 928 F.2d 718 (Sth Cir. 1991). The Supreme Court reversed,

holding that "qualified immunity, as enunciated in (Harlow y.

Fitzgerald, 102 S. Ct. 2727 (1982), is (not) available for private

defendants faced with § 1983 liability for invoking a state replevin,

garnishment or attachment statute.” 112 S.Ct. 1827, 1834 (1992). Inso

doing, the Court explained that its decision did "not foreclose the

possibility” that private defendants "could be entitled to an affirmative

defense based on good faith and/or probable cause or that § 1983 suits

against private, rather than governmental, parties could require

8

plaintiffs to carry additional burdens.” /d.

We have requested, and received, supplemental briefs from

Wyatt, Cole,and Robbins. Inkeeping with the Court's suggestion, as

well as the more explicit guidance provided by Justice Kennedy's

concurring opinion, id. at 1835-37 (Kennedy, J., concurring), and the

Chief Justice's dissent, id. at 1838-39 (Rehnquist, C.J., dissenting),

we now hold that plaintiffs seeking to hold private actors liable under

Lugar v. Edmonson Oil Co., 102 S.Ct. 2744 (1982), must demonstrate

that defendants failed to act in good faithin invoking the unconstitutional

State procedures. Because Wyatt has not shown that Cole and Robbins

either knew or should have known that M‘ssissippi's replevin statute

was unconstitutional prior to its invalidation in April 1989, we affirm

the district court's judgment.

I.

Howard Wyatt and Bill Cole are former business partners. Cole sought

to dissolve the partnership in July 1986. When negotiations failed,

Cole, with the assistance of his attomey, John Robbins, II, filed a state

court complaintin replevin against Wyatt accompanied by a bond of

$18,000. Pursuant to Miss. Code Ann. $11-37-101, a writ of replevin

issued and the county circuit judge signed an order directing the county

sheriff to execute the writ a few days later. The sheriff seized 24 head

of cattle, a tractor, and other property from Wyatt on July 29 and 30,

1986. The writ of replevin and summons were served on Wyatt the next

day. On October 3, 1986, after a post-seizure hearing, the circuit judge

dismissed Cole's complaint in replevin and ordered him to retum the

property to Wyatt. Although Cole had not yet complied with this order,

the judge dismissed the action without prejudice on September 3,

1988.

In July 1987, Wyatt filed this $ 1983 suit in U.S. District Coun

for the Southern District of Mississippi, contending that the seizure of

his property without notice violated the Due Process Clause as well as

several state provisions. The district court declared the state replevin

Statute unconstitutional on April 13, 1989, 710 F.Supp. 180, but held

' The State of Mississippi and several county officials were also parties to this

case in the district court and on appeal. Wyatt's claims against these defendants were

resolved prior to argument in the Supreme Court and are therefore not before us.

9

that Cole and Robbins were entitled to qualified immunity from any

damages suffered by Wyatt prior to this date under Folsom Investment

Co. v. Moore, 681 F.2d 1032 (Sth Cir. 1982). Wyatt conceded that he

could not prove any damages resulting from defendants’ conduct after

the statute had been invalidated, but asserted that Cole and Robbins

should be held liable for attorney's fees. The district court denied this

request with respect to Cole and Robbins on grounds that a failure to

recover money damages from defendants precluded a recovery of

attomey's fees.

On appeal, we held that Wyatt's request for damages suffered

priorto the district court's decision in 1989 was barred by Folsom, where

this court held that " 'a § 1983 defendant who has invoked an attach-

ment statute is entitled to an immunity from monetary liability so long

as he neither knew nor reasonably should have known that the statute

was unconstitutional.”” 928 F.2d 718, 721 (Sth Cir. 1991) (quoting

Folsom, 682 F.2d at 1037). Given our invalidation of a similar Georgia

prejudgment statute in Johnson v. American Credit Co., 581 F.2d 526

(Sth Cir. 1978), we recognized that the reasonableness of Cole's and

Robbins’ invocation of the Mississippi statute presented a close

question. 928 F.2d at 721-22. We held, however, that Cole and

Robbins, as private actors, should not be charged with the same degree

of knowledge as public officials, and that, under this more liberal

standard, their reliance on the law “was not an act of unreasonable

ignorance.” /d. at 722. We thereore affirmed the district court's grant

of qualified immunity to Cole and Robbins.’

The Supreme Court then reversed, holding that qualified immu-

nity isnot "available for private defendants faced with $1983 liability

2 We did reverse the district “court on the issue of attorneys’ fees, holding that

Cole, but not Robbins, was liable for fees incurred after the district court's declaratory

judgment because this decision “affected the behavior of Cole towards Wyatt by

effectively requiring him to return the propery seized.” 928 F.2d at 723. We are no

longer persuaded that this is correct. Cole offered to return the cattle soon after the

district court's invalidation of the statute, but the record discloses that his overture was

not accepted. Wyatt instead sought to recover damages for the loss of his share of the

partnership's assets, which included the cattle. At trial, however, Wyatt conceded that

he could not demonstrate that Cole's seizure resulted in a net loss, and thus could not

establish any damages. Since Cole was not required to pay damages or otherwise

change his behavior in any way as a result of the court's judgment, he has not been

“prevailed against” and thus is not liable for attorneys’ fees. See Kentucky v. Graham,

105 S.Ct. 3099, 3104 (1985).

10

for invoking a state replevin, gamishment or attachment statute." 112

S.Ct. 1827, 1834 (1992). While noting that private actors enjoyed a

good-faith defense against suits for malicious prosecution and abuse

of process at common law, the Court asserted that such history did not,

by itself, entitle them to "the qualified immunity from suit accorded

governmental officials under Harlow v. Fitzgerald, 102 S.Ct. 2727

(1982)." 112 S.Ct. at 1832 (emphasis added). To the contrary, Harlow’s

recognition of "such an immunity w(as) based not simply on the

existence of a good-faith defense at common law, but on the special

policy concems involved in suing government officials." /d. at 1833.

Because Harlow" ‘completely reformulated qualified immunity along

principles not at all embodied in the common law, '" id. (quoting

Anderson v. Creighton, 107 S.Ct. 3034, 3042 (1987) }, the doctrine

could be extended only if suits agains private defendants implicated

the same policies supporting immunity for public officials. The Court

found that they did not. Qualified immunity, the Court explained, is

necessary to ensure that "public officials are able to act forcefully and

decisively in their jobs" and that "talented candidates (are) not deterred

by the threat of damage suits from entering public service." /d. at 1833.

Since these considerations are absent in the case of private parties,

who of course "hold no office requiring them to exercise discretion,"

id., the expansion of qualified immunity contended for by Cole and

Robbins was unwarranted. Thus, the Court concluded that, "[a]lthough

principles of equality and faimess may suggest. . . that private citizens

who rely unsuspectingly on state laws they did not create and may have

no reason to believe are invalid should have some protection for

liability,” id. at 1833, it could "offer no relief today.” /d. at 1834.

The Court identified two issues for consideration on remand.

Noting that this panel affirmed the district court's judgment solely on

grounds of qualified immunity, the Court stated that its decision made

it necessary to determine "whether Cole and Robbins, in invoking the

replevin statute, acted under color of state law within the meaning of

[Lugar v. Edmonson Oil 'Co., 457 U.S. 922 (1982) }." 112 S. Ct. at

1834. The Court also indicated that its denial of qualified immunity did

not

foreclose the possibility that private defendants faced with

liability under {Lugar} could be entitled to an affirmative

defense based on good faith and/or probable cause or that

§ 1983 suits against private, rathér than governmental

—

1]

parties could require plaintiffs to carry additional burdens.

ld. We address these issues in tum.

Il.

Section 1983 provides a cause of action against any person who,

under color of state law, deprives another of rights secured by the

Constitution. Collins v. City of Harker Heights, 112 S. Ct. 1061, 1066

(1992); 42 U.S.C. § 1983. In Lugar v. Edmundson Oil Co., 102 S. Ct.

2744 (1982), the Supreme Court held that private parties invoking a

State attachment statute may be held liable under 1983 if their actions

are "fairly attributable to the state.” /d. at 2753. The Court established

a two-part test for determining whether the conduct alleged meets this

requirement. First, “the deprivation must be caused by the exercise of

some right or privilege created by the State or by a rule of conduct

imposed by the state or by a person for whom the State is responsible."

Id. Second, "the party charged with the depirvation must be a person

who may fairly be said to be a state actor,” that is, one who is in fact

a State official, one who "has acted with or has obtained significant aid

from state officials, " or one whose "conduct is otherwise chargeable

to the State.” /d. at 2754.

In applying this standard to the facts of before it, the Court in

Lugar found the presence of the ex parte attachment statute sufficient

to satisfy the first requirement: "[T] he procedural scheme created by

the statute is obvioulsy the product of state action [and] is subject to

constitutional restraints and properly may be addressed in a § 1983

action.” /d. at 2756. The Court aslo found the private defendants’ resort

to this unconstitutional prodedure sufficient to meet the test's second,

"joint participation” prong. /d. Inso doing, the Court expressly rejected

the argument "that in this context ‘joint participation’ required some-

thing more than invoking the aid of state officials to take advantage of

State-created attachment procedures.” /d. This “low threshold” for

establishing state action, at least where ex parte prejudgment pro-

ceedings are involved, Davis Oil Co. V. Mills, 873 F.2d 774, 779 (Sth

Cir.), cert. denied. 493 U.S. 937 (1989), has been recognized by the

Circuit, see, e.g., Folsom, 681 F.2d at 1037 ("when a§ 1983 plaintiff

challenges the constitutionality of a state attachment procedure . . . the

private party who sets that attachment scheme in motion is to be

considered a state actor”), and was confirmed by the Supreme Court in

i eae

12

Wyatt. 112 S. Ct. at 1830.

The district court held that Cole's invocation of the Mlississippi

replevin statute was enough to trigger potential liability under § 1983.

It also assumed, without expressly deciding, that Robbins, his attor-

ney, had also acted under color of state law in requesting the writ of

replevin. On remand from the Supreme Court, Cole challenges the

district court's determination. Wyatt has maintained throughout this

litigation that Cole's actions contravened not only federal law (in that

the replevin statute operated to deprive him of his property without due

process), but also state law, contending that Cole filed the complaint

in bad faith, that replevin was improper under state law, and that Cole

refused to return the cattle in violation of a state court order. Citing

Lugar, Cole argues that he cannot be deemed a state actor because

Wyatt's assertion that his conduct was contrary to, not consonant with,

state law and policy locate the source of his harm in purely private

actions for which the state cannot be held responsible.

This argument is not without merit. The Court in Lugar faced a

similar charge that private defendants’ attachment suit was "unlawful

under state law.” Lugar, 102 S.Ct. at 2755. In discussing this claim the

Court made plain that "private misuse of a state statute does not

describe conduct that can be attributed to the State.” /d. at 2756. The

choice to invoke the "statute without the grounds to do so could in no

way be attributed to a state rule or state decision"; this act is "contrary

to the relevant policy articulated by the state." /d. at 2755. For this

reason, complaints "alleg{ing] only misuse or abuse of the statute” do

not "present a valid cause of action under § 1983." /d. at 2756. In the

wake of Lugar, several courts have recognized and given effect to this

principle. See, e.g., Davis Oil Co., 873 F.2d at 779-80 (discussing

Lugar); Cobb v. Saturn Land Co., 966 F.2d 1334, 1335-36 (10th Cir.

1992: Hoai v. Vo, 935 F.2d 308, 313-14 (D.C.Cir. 1991), cert. denied,

112 S.Ct. 1578 (1992); Jones v. Poindexter, 903 F.2d 1006, 1010-11

(4th Cir. 1990); Collins v. Womancare, 878 F.2d 1145, 1152-54 (9th

Cir. 1989), cert. denied, 493 U.S. 1056 (1990); Winterland Conces-

sions Co. v. Trela, 735 F.2d 257,262 (7th Cir. 1984).

The district court nevertheless properly held that Cole's alleged

misuse and violation of the Mississippi replevin statute did not

preclude a finding that he acted under color of state law. Like the

plaintiff in Lugar, 102 S. Ct. at 2755-56, Wyatt also challenged the

constitutionality of the state law in asserting that his property had been

13

taken without due process. Because this claim centers on the proce-

dures prescribed by the statute itself, rather than defendant's alledged

abuse of them, it plainly implicates the state and its authority in the

deprivation of constitutional nghts. /d. The Lugar Court found state

action present on analogous facts; so do we.

With respect to Robbins, the district court held that "[w hile an

action strictly within the scope of representation of a client does not

normally constitute an act under color of state law, an attomey is still

a person who may conspire to act under color of state law in depriving

another of secured rights." Tower v. Glover, 467 U.S. 914, 920-23

(1984); Russell v. Milsap, 781 F.2d 381, 383 (Sth Cir. 1985) cert.

denied, 479 U. S. 826 (1986). See Hoai, 935 F.2d at 313 nS. Cf.

Watertown Equipment Co. v. Norwest Bank Watertown, N.A.,830F.2d

1487, 1496 (8th Cir. 1987), cert. denied, 108 S. Ct. 1723 (1988). Wyatt

has not asserted that Robbins performed any acts lying outside the

scope of his representation of Cole. The district court, however,

assumed that Robbins acted under color of state law and Robbins

himself concedes this point in his brief. We will therefore assume,

without deciding, that Robbins as well as Cole may be held liable under

$ 1983 for Wyatt's constitutional injury.

II.

Bound by our prior decision in Folsom Invesanent Co. v. Moore,

681 F.2d 1032 (Sth Cir. 1982), this panel affirmed the district court's

grant of qualified immunity to Cole and Robbins. See 928 F.2d at 721-

22. The Supreme Court reversed, but, as we noted above, see supra, at

p. 5-6, indicated that "principles of equality and fairness” may suggest

that private defendants "should have some protection for liability,” id.

at 1833, and expressly declined to foreclose the possibility that a

showing of good faith would defeat a § 1983 action brought against

individuals such as Cole and Robbins. /d. at 1834. The five Justices

who either concurred or dissented were more forthright in their support

of a standard that would relieve private parties who reasonably relied

on a State statute of liability. See id. at 1835-37 (Kennedy, J., joined

Scalia, J., concurring); id. at 1838-39 (Rehnquist, C.J., joined by

Souter & Thomas, JJ., dissenting). When read together, we believe that

the question left open by the majority was largely answered by these

separate opinions. We accordingly hold that private defendants sued

on the basis of Lugar may be held liable for damages under § 1983

eS

14

only if they failed to act in good faith in invoking the unconstitutional

State procedures, that is, if they either knew or should have known that

the statute upon which they relied was unconstitutional. We also find

that Wyatt has failed to meet this standard and therefore affirm the

district court's judgment.

As the Court stressed in Wyazt, it has consistently recognized that

Congress, in enacting the Civil Rights Act of 1871, legislated against

a background of common-law tort liability. 112 S.Ct. at 1831; id. at

1835 (Kennedy, J., concurring). See, e.q., Owen v. City of Indepen-

dence, 445 U.S. 6722, 637-38 (1980); Pierson v. Ray, 386 U.S. 547,

556-57 (1967); Monroe v. Pape, 365 U.S. 167, 187 (1961). Thus, while

§ 1983 "Creates a species of tort liability that on its face admits of no

immunities," Imbler v. Pachtman, 424 U.S. 409, 417 (1976),

the Court has read the provision "'in harmony with general principles

of tort immunities and defenses rather than in derogation of them.”

Malley v. Briggs, 106 S.Ct. 1092, 1095 (1986) (quoting /mbler, 424

U.S. at 418) ). At the same time, because the process of drawing

positive inferences from legislative silence is always accompanied by

a certain amount of uncertainty, the Court has only "look[ed] to the

common law for guidance,” and has not "assume[d] that Congress

intended to incorporate every common-law immunity into § 1983 in

unaltered form." Malley, 106 S.Ct. at 1095. The conclusion that

Congress intended to incorporate a specific defense should follow

only after determining that "a tradition of immunity was so firmly

rooted in the common law and was supported by such strong policy

reasons that ‘Congress would have specifically so provided had it

wished io abolish the doctrine.’ " Owen, 445 U. S. at 637 (quoting

Pierson, 386 U.S. at 555) ).

The Court in Wyaztt identified malicious prosecution and abuse of

process as the common-law causes of action most analogous to Wyatt's

claim under Lugar and therefore focused its inquiry on the elements of

these torts. While differing as to the legal consequences of their

common finding, all of the Justices agreed that plaintiffs seeking to

recover on these theories were required to prove that defendants acted

with malice and without probable cause. See 112 S.Ct. at 1832 n.2 ("a

plaintiff's malicious prosecution or abuse of process action failed if she

could not affirmatively establish both malice and want of probable

15

cause"); id. at 1835 (Kennedy, J., concurring) ("In both of the common

law actions, it was essential for the plaintiff to prove that the wrong

doer acted with malice and without probable cause"); id. at 1838 n.1

(Rehnquist, C.J., dissenting) ("it was plaintiff's burden to establish as

elements of the tort both that the defendant acted with malice and

without probable cause” (emphasis added). See generally Stewart v.

Sonneborn, 98 U.S. 187, 194 (1878); 2 C. Addison, Law of Torts § 1,

p. 65 (1876); J. Bishop, Commentaries on Non-Contract Law § 242,

at 97 (1889); T. Cooley, Law of Torts 184 (1879); 1 F. Harper & F.

James, The Law of Torts 311 (1956); Note, Groundless Litigation and

the Malicious Prosecution Debate: A Historical Analysis, 88 Yale L.J.

1218, 1219 (1979).

The majority in Wyazt concentrated on the immediate issue at

hand--whether the purposes and policies underlying § 1983 would be

served by transforming essential elements of the plaintiff's case at

common law into a defense of qualified immunity to be asserted by

defendants. The Court held that they would not. 112 S.Ct. at 1833-34.

Justice Kennedy and, at least to some extent, Chief Justice Rehnquist

accepted the majority's holding, but then moved on to consider the

precise contours of the good faith doctrine they, along with the three

other Justices who joined their opinions, believed would be available

to Cole-and Robbins on remand.

They agreed that plaintiffs, not defendants, bore the burden of

proof on the questions.of malice and probable cause, 112 S.Ct. at 1837

(Kennedy, J., concurring), and that, since plaintiffs were required to

prove both at common law, a defendant could avoid liability under §

1983 by showing the absence of either. 1 12 S.Ct. at 1838-39 (Rehnquist,

C. J., dissenting). Justice Kennedy and Chief Justice Rehnquist also

agreed that the probable cause inquiry could not be wholly equated

with qualified immunity, since the Court had previously identified the

Harlow Couns "replac{ement] of the inquiry into subjective malice so

frequently required at common law with an objective inquiry into the

legal reasonableness of the official action" as a "complete[)

reformulat{ion] [of] qualified immunity along principles not at all

embodied at common law." Anderson v. Creighton, 107 S.Ct. 3034,

3042 (1987) (citing Harlow, 102 S.Ct. at 2736-39). See 112 S.Ct. at

1839 n.2 (Rehnquist, C. J., dissenting) ("There is perhaps one small

difference between the historical common law inquiry and the modem

qualified immunity inquiry. At common law, a plaintiff can show the

ee Oe

16

lack of probable cause either by showing that the actual facts did not

amount to probable cause (an objective inquiry) or by showing that the

defendant lacked a sincere belief that probable cause existed (a

subjective inquiry)").

Justice Kennedy emphazized the importance of the subjective

inquiry into malice, stating that, "[u]nder common law... ifthe plaintiff

could prove subjective bad faith on the part of the defendant, he had

gone far towards proving both malice and lack of probable cause.” 112

S.Ct. at 1836 (Kennedy, J., concurring). The justification he offered to

support the prominence of this inquiry, however, cut both ways. On the

one hand, he indicated that the examination of private defendants’

actual knowledge of the validity of the law might lead to a finding of

Uiability in circumstances where public officials would be shielded by

qualified immunity. 112 S.Ct. at 1836-37 (Kennedy, J., concurring)

(“It seems problematic to say that a defendant should be relieved of

liability under some automatic rule of immunity if objective reliance

upon a Statute is reasonable but the defendant in fact had knowledge

of its invalidity"). On the other hand, given this emphasis on what

private actors actually know, rather than what they should know,

private defendants might establish probable cause and avoid liability

even though a right was "clearly established.” Anderson, 107 S.Ct. at

3038. See 112 S.Ct. at 1837 (Kennedy, J., concurring) ("the existence

of a statute thought valid ought to allow a defendant to argue that he

acted in subjective good faith and is entitled to exoneration no matter

what the objective test is").

A private defendant's good faith is especially significant because

Harlow’s qualified immunity standard is far more demanding than the

objective component of the common law probable cause inquiry, since

private actors are not charged with the same amount of knowledge

regarding the law as public officials. As Justice Kennedy noted, "there

is support in the common law for the proposition that a private

individual's reliance on a statute, prior to a judicial determination of

unconstitutionality, is considered reasonable as a matter of law.” id.

at 1837 (citing Birdsall v. Smith, 122 N.W. 626, 627 (Mich. 1909) ).

In addition, " '[t}he layman's ignorance of the law has been taken into

account in the almost universal holding that probable cause is estab-

lished where the prosecution was instituted with the advice of counsel.’

"Duncan v. Peck, 844 F.2d 1261, 1267 (6th Cir. 1988) (quoting Prosser

17

& Keeton, The Law of Torts § 119 (Sth ed. 1984) ). See also Bishop,

§ 236, at 93-94; Cooley, at 183-84; 1 Harper & James, at 313-14,

322. Aside from these bright-line rules, the Court recently provided

additional guidance on the contours of the probable cause inquiry in

Real Estate Investors v. Columbia Pictures, 113 S. Ct. 1920 (1993),

where it revisited this issue in the context of antitrust sham litigation.

There, the Court held that "[p}robable cause to institute civil proceedings

requires no more than a'reasonable[e} belie|f] that there is a chance that

[a] claim may be held valid upon adjudication.’ " /d. at 1929 (quoting

Hubbard v. Beatty & Hyde, Inc., 178 N.E. 2d 485, 488 (Mass. 1961)

(alterations in original) ) ; Restatement (Second) of Torts § 675,

Comment e, pp. 459-60 (1977) ("In determining probable cause for

initiation cf civil proceedings, all that is necessary is that the claimant

reasonably believe there is a sound chance that his claim may be held

legally valid upon adjudication”).

In light of these considerations, we think that private defendants,

at least those invoking ex parte prejudgment statutes, should not be

heldliableunder 1983 absent a showing of malice and evidence that

they either knew or should have known of the statute's constitutional

infirmity. The record in this case discloses that the Mississippi replevin

statute invoked by Cole, while perhaps placed in "legal jeopardy” by

our decision in Johnson v. American Credit Co., 581 F 2d 526 (Sth Cir.

1978), see 928 F.2d at 721, remained good law at the ume of his suit.

Moreover, there is evidence that Cole relied on Robbin's advice in

filing his compaint in replevin. We need not, however, rely on the

categorical common-law rules cited above to find that probable cause

supported Cole's resort to the state procedures, for, as we stated in our

prior opinion, "[wJe need not conclude that a private actor is entitled

to rely on any statutory relic, regardless of its current absurdity,” in

order to hold "that reliance upon the statute by the private actors was

not an act of unreasonable ignorance.” 928 F.2d at 721-22 ”

Having concluded that Cole's and Robbins’ invocation of the

Mississippi statute was not objectively unreasonable, we tum to

consider whether they in fact believed the statute to be constitutionally

valid at the time of the suit. Wyatt contends that Cole's professed good

faith reliance on the replevin procedures is undermined by the exist-

ence of several facts tending to show that Cole filed the complaint out

of malice. Wyatt alleges that Cole threatened to use "political influ-

ence" to secure the retum of his cattle, had no grounds under state law

18

for bringing his action in replevin, and refused to restore the property

seized in violation of a state court order.

We will assume for purposes of decision that Wyatt's account of

these events is true. We do not see, however, how these allegations

detailing Cole's misuse and abuse of state procedures bear on whether

he in fact believed the Mississippi statute to be constitutionally infirm.

It is this narrow question, not whether Cole exhibited a generalized

“malice” by filing suit for improper reasons, that is relevant in

determining whether probable cause lies. As we noted above, see

supra, p. 8-9, state law claims are not cognizable under $ 1983. Wyatt

seeks to hold Cole liable for damages for invoking the statute that led

to the deprivation of his property without due process. Unless we may

infer defendant's knowledge of federal law from his alleged violations

of state law, the latter have no bearing on the probable cause inquiry.

In the absence of any evidence that either Cole or Robbins had actual

knowledge of the replevin statute's constitutional infirmity, we hold

that the district court properly barred Wyatt's damage claims against

them.

IV

For the foregoing reasons, we affirm the district court's judgment.

3 Wyatt argues that Robbins, as an attorney, should be held charged with a

greater knowledge than other private defendants. We disagree. As we indicated in our

first opinion, Robbins “is subject to the same standard of good faith as Cole because

the relevant distinction is between persons acting privately and those acting for the

state.” 928 F.2d at 722 n.5