Gabbard v. RoseGabbard v. Rose
Julian R. Gabbard, Plaintiff-Appellant, instituted this action in the United States District Court for the Eastern Division of Kentucky, alleging that he had been deprived of his constitutional rights secured by the
‘Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or othеr person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit and equity, or other proper proceeding for redress.’
The Defendants-Appellees аre Edgar Rose, the County Judge of Clark County, Kentucky, rodney Thompson, County Attorney, Clark County, Kentucky, and Gene Morgan, kentucky State Police Officer.
The District Court granted summary judgment to Defendants-Appellees Rose and Thompson on the rrinciple of judicial immunity1 and directed a verdict in favor of Defendant-Appellee Morgan at the conclusion of Plaintiff‘s evidence. The matter is before this Court оn appeal.
The essential facts are: Plaintiff-Appellant, Julian R. Gabbard, an attorney-at-law, practicing in the State of Kentucky, on the 9th day of January, 1963, was arrested by Defendant-Appellee, Gene Morgan, a Kentucky State Policeman, on a chаrge of speeding on an interstate highway in Clark County, Kentucky. Plaintiff-Appellant was ordered by Appellee Morgan to follow him to Winсhester, Clark County, kentucky, for the purpose of posting bond.
Appellee, Edgar Rose, is the County Judge who had jurisdiction of speeding оffenses. Appellee Rose had issued instructions that all out of county speed violators would be required to post a cash bond of $27.50. When Appellant Gabbard was taken to the jail he telephoned Appellee, Rodney Thompson, the County Attorney, a lаw school classmate of the Appellant, and Appellee Thompson instructed the officer to release the Appellant without bond. Whereupon, Appellee Morgan issued a citation charging Appellant with violation of
On January 15, 1963, the Appellant instituted suit in the Carter Circuit Court and the Circuit Court Judge issued a temporary writ of prohibition, prohibiting the Appellee, Judge Edgar Rose, from trying thе Appellant on the charge growing out of the citation issued by Appellee Morgan. Thereafter, the Circuit Court Judge who had issued thе writ of prohibition advised the parties involved by letter that he was dissolving it, but no order to that effect had been entered at the time of the trial of this cause.
On February 15, 1963, the Appellant was tried in the courtroom of Appellee Rose, by a jury duly impaneled, and the jury found Appellant not guilty. On May 23, 1963, Appellant filed his complaint in the United States District Court, Eastern District of Kentucky, at Lexington, kentucky, seeking relief under the Civil Rights Act of 1871 (17 Stat. 13,
Appellant contends that the County Judge, Appellee Rose, had no jurisdiction to try him, and therefore the rule оf judicial immunity is not applicable. Appellant maintains that
Appellant was charged with violating Kentucky Revised Statе, Section 189.390 which sets the speed limit as sixty miles per hour during daylight hours. The penalty for violation of Section 189.390 is prescribed in
We do not pass judgment upon the County Court‘s action in trying Appellant after being informed that Section 189.390 was not the applicable section. Our consideration is limited to the correctness of the District Court in granting summary judgment for Appellees Rоse and Thompson and directing a verdict for Appellee Morgan.
This Court, in Cuiksa v. City of Mansfield, 250 F.2d 700 (C.A.6, 1957), in an able opinion by Judge Shackelford Miller, quoted the Suprеme Court in Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1871):
‘But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offenses committеd within a certain district should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greatеr punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are pаrticulars for his judicial consideration whenever his general jurisdiction over the subject matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised.’
The prosecuting attorney enjoys the same immunity as that which proteсts the judge. Kenney v. Fox, 232 F.2d 288 (C.A.6, 1956).
As to Appellee Morgan, we adhere to the holding of the Ninth Circuit Court in Agnew v. City of Compton, 239 F.2d 226 (1956):
‘Wrongful arrest based on arresting officers’ misunderstanding of оrdinance does not amount to deprivation of basic civil rights and does not authorize recovery against such officers under federal Civil Rights Act.
The judgment of the District Court is affirmed.