Gary Baskin and Beulah Baskin v. Eugene Parker and Curtis L. Smith

September a 320 who died owns ON PETITION FOR REHEARING Parish, acre farm in a rural area Winn COLEMAN, RUBIN, Before CLARK and Winnsboro; the town of Louisiana near Judges. Circuit son, Baskin, a 400 acre farm Gary her owns area. At the time of the events in the same PER CURIAM: residing in a house question, both were farm; Cir., Gary’s a home on Mrs. opinion, We situated on prior withdraw our young to a property was rented following: Baskin’s and substitute couple. King prerogative, hath no but that “[T]he Smith, 17,1974, him,” L. September Curtis which the law of the land allows On obtained Proclamations, Winn Parish deputy sheriff for declared Sir Edward Coke in properties, Now, Baskin to search the Co.Rep. (1611). over three warrants J. A. later, including 120 acres owned centuries we examine further estate, marijuana participated executing Baskin also them related paraphernalia. probable Smith lacked unreasonable manner.

cause to obtain the warrants because his held, however, evi- court credible, informants were not and he knew participa- dence “did not establish or should have known that the information in the “denial of tion the Sheriff” supplied that had been to him was on based (Emphasis by the rights.” constitutional personal grievances against Gary Baskin. court.) evidently con- judge trial The trial that, The trial court the found under cir- Parker arrived at the cluded that Sheriff cumstances, had duty he a to check the property after the search was in Baskin distortion, allegations misconception or virtually completed, been progress or had outright untruth. implies opinion but the neither states nor findings respect

There was evidence in the to whether the any record from with obtaining which the war- participated conclusion have been in the Sheriff directing reached that exe- Sheriff Parker knew before rants or in their service and the warrant was obtained of the circum- cution. also held that the The court Sheriff surrounding investigation vicariously stances the the doc- and was not liable under participated obtaining respondeat superior. to some extent in the trine of warrant, supervised or that he ac- Smith’s Concluding finally police that the con- doing tivities in so. Moreover there was executing ducted in the search “shocks the day evidence the the warrant was conscience,” Gary the court to $250 awarded executed, part posse at least of four proper- to Baskin his mother for $13.85 troopers, three or four deputy sheriffs ty damage. He awarded each of them $100 deputy gath- and the town marshal and his punitive damages. as He decided that office, ered in the sheriff’s and that the plaintiffs’ presented counsel had the case so sheriff to some posse’s extent directed the ineptly attorney’s fees should be de- activities. nied. Defendant Smith has tendered the issued,

After the warrant was “several” amount awarded. deputies, including Smith, appar- who was Despite the created evident difficulties ently charge, together in with the state repre- the in which then manner counsel troopers, left the office in Winnsboro and senting plaintiff prepared or, ac- the more — proceeded to the property. Baskin There trial, curately, the prepare failed —for a conducted search described the evidence, the presented and which he judge trial as “transcending the limits of judge presided carefully; he patiently and police restraint,” path and “left a of de- commendably sensitively inquired into upon plaintiffs’ struction property.” They neglected plain- matters The counsel. forcibly entered both the Baskins’ home and findings only tiffs attack his re- three house; their rent they destroyed some of spects: dismissal the action property; their they forced locked doors Sheriff; conspiracy; failure find a and windows. the amount of awarded. complaint

The charged violations both of II 42 U.S.C. 1988 and respect § 1985. With charge, Section Supreme court found The recent decision of Court there no Services, was evidence that Department Sheriff in Monell v. of Social Parker Deputy conspired Smith “to de-

prive federally pro- changed has the law of this circuit on rights.” tected infringement previ was not vicarious under 1983. We proved plan ously “result of overt held that where state law would im or upon scheme to embark activity.” pose liability, like cause ac The court found a violation of Section 1983 tion arose under 1983. Madison v. Ger by Deputy stein, 341; Smith on the he basis that 5 Cir. Lewis F.2d only procured improperly warrants v. Brautigam, but Cir. personal from Gibson, dismissal Sheriff Taylor also Cir. 709, 716; Estelle, manner 5 Cir. for the unreasonable Carter Tuley sup- Heyd, warrant executed which the was accompa- evidence that he did ported he arrived party and that ny the search language used parsing the After into property entry the Baskin after tracing legislative history, 1983 and search and the had been effected houses the official concluded that Monell Court that he There no evidence commenced. (in city government) case sued participated property destruction. be held liable unless action

could not policy pursuant to this official officer noted, However, there as we have In other a constitutional tort. caused finding with implicit nor explicit neither superior words, rejected respondeat obtain- participation respect either to We inter theory recovery under 1983. of § organiz- part or his in ing the warrants to ruling uniformly applicable pret Monell’s testi- According to his own ing the search. Using any in the to 1983 action state. § enough get been to mony, trying “I had varying contours of local law to define a search together get in fact information to right of action statutory reach of a federal particular this or to make case on warrant availability of vicarious would make . work- . . had been defendant. [W]e and, upon depend the location He quite time.” cases for some states, These some the nature of the tort. hearsay he was aware of testified that incidental, vagaries irrelevant should of of the source of the evidence and nature the contours of national constitu mold this to effort of it. made no at least some He Adopting state’s law into tional tort. each Moreover, State Baskin served. have Mrs. doctrine of 1983 would create a lex loci § Trooper Don McDonald testified withheld, respondeat superior granted or posse ten men part of the of seven to least policy. federal the basis of state rather than and assembled in the Sheriff’s office men, a language governing two of the of the statute Parker directed Sheriff go ac- to trooper, the remedies available in civil and a state to tions, 1988, attempt supports our conclu- to Gary employed U.S.C. Baskin was place sion property, that state vicarious doctrines bring him and him to the to locate not, inapplicable are suits. Section they if could with instructions supplement 1988 allows state to remedies the rest of with were rendezvous remedies available law when prop- under federal group at a church near the Baskin adapted federal remedies “are not The sher- erty join and them in the raid. object, provisions or are deficient in the concedes, must, that he iff’s brief as he necessary to furnish and suitable remedies organized investigation and authorized punish against offenses the law.” Section party. search provides 1988 also remedies the state partic- points active This evidence toward adopted not be with the must inconsistent obtaining the ipation by Parker in Sheriff Constitution and laws of the United States. execution. supervising warrants and Allowing Louisiana’s rules express made The trial court should have govern directly this case con- would be findings as to these actions whether 1983, trary to Monell’s construction of § 1983, and whether violated Section Sheriff requirements thus to the 1988. him participation rendered the extent of Although liable Sheriff Parker is damages. liable for damages for on the vicarious liabili basis of ty 1983, ques under Section there is some Ill personally tion as to whether he a cause damages grant liable for that section be 1985 does not under Section tort or participation obtaining every conspiratorial cause of his action for plan or organizing party. every wrong committed common warrants and the search iation, embarrassment, design; grants cause mental of action distress only conspiracies deprive “any person imposed as a result of the equal persons protection or class of of the re injuries whose constitutional laws, equal privileges or im compensato dress considered Giarrusso, munities under the laws.” A racial or class- 1978, v. E.g., 5 Cir. ry. Garner based animus is an essential element of 1339; 1330, Hostrop v. 571 F.2d Board 1985(3). action under 42 U.S.C. Griffin v. 515, 1975, College 7 Cir. Junior District No. 1971, Breckenridge, 88, 102, U.S. 569, 579-80, denied, 1976, 425 523 F.2d cert. 1790, 338; 1798, S.Ct. L.Ed.2d Atkins 208; 1748, 963, 96 48 L.Ed.2d 489; Lanning, 1977, 485, 10 Cir. 556 F.2d Co., 1974, 8 Cir. Williams v. Matthews Co., Mississippi McLellan v. Light Power & 1974, denied, cert. 419 U.S. 919, 924, 928-29; 5 Cir. Ohio 495, 507, L.Ed.2d Inns, Inc. v. Nye, 6 Cir. 302; Sky Realty Company, Seaton 7 Cir. denied, 1977, 1974, 491 F.2d 636. Harrison law, too, “damages for Under Louisiana Brooks, 1359-60. aggravation, anguish, mental distress alleged proved neither nor inconvenience, are in an action recoverable tending facts to show class-based sounding Toyota tort.” Meador animus on part of either Sheriff Parker Jefferson, La.1976, Inc., 332 So.2d Smith, Deputy Caucasians, both Ann. art. Such La.Civ.Code dam Baskins, family. a white farm Accord ages compensatory punitive are than rather ingly, we affirm conclusion that a con nature, see, e.g., v. Magnolia Fontenot spiracy in violation Section 1985 was not Co., 1955, Petroleum 227 La. 80 So.2d proved. Railroad, V. McGee v. Yazoo & M. 1944, 206 La. and are So.2d IV separate compensation for and distinct from Compensatory damages the depriva- for La.App.1967, Perkins, physical injury, v. see Trahan right governed tion of a by federal Thus, Louisiana So.2d federal provided standards as in 42 U.S.C. intangi damages have courts awarded Park, Hunting Sullivan Little injury variety ble sensibilities a human Inc., 1969, See, e.g., of situations. Anderson Weld L.Ed.2d 386. This means “that both federal Inc., La.1974, Laboratory, Testing utilized, and damages may state rules on be that (apprehension So.2d 351 radiation whichever policies better ex- serves the cancer); Boutte Har burns cause pressed in the federal statutes.” Id. 396 La.1974, (assault grove, and 290 So.2d 319 U.S. at 90 S.Ct. at L.Ed.2d Inc., battery); Rubenstein, Clark v. I. H. 394. Both recog- federal and Louisiana law (wrongful La.App.1976, 335 So.2d 545 accu right nize the to recover items of dam- shoplifting); Dompe, La. Hayes sation age that the trial court failed allow App.1976, (wrongful seizure So.2d Baskins to recover. property); Booty v. American Finance Emotions are intangible but are Corp. Shreveport, La.App.1969, 224 So.2d perceptible. none the less The hurt done to denied, 254 La. So.2d feelings reputation by an invasion of (unreasonably communica coercive creditor constitutional is no less real no employer); tion with Edwards v. debtor’s compensable less than repairing the cost of Butler, La.App.1967, (improper 203 So.2d pane broken damaged window or a lock. extrajudicial repossession); Ford v. State Wounded psyche and soul are to be salved Co., Mutual Insurance Farm Automobile by damages as much as the property that (mental distress La.App.1962, 139 So.2d 798 replaced can be at the local hardware store. which by caused accident result automobile Thus, cases, in a number of Therefore physical injury). federal ed in no both courts have recognized personal precedents support humil- damages award of for the We therefore reverse the dismissal of the to the Baskins against Parker Section 1983 action Sheriff personal indignity humiliation and visited the award of dam- and remand the case for on each of them as a result both of the distress; ages and emotional for humiliation wrongful application improper for and exe- judgment whether or not for determination cution of the warrants. Parker should be rendered Sheriff community In a small where each resi- participation in the personally for his own neighbors dent is known to the the humilia- warrants; issuance and execution of the tion from an unlawful search a number for reconsideration of the and thereafter of officers is evident. The emotional dis- amount of as to both defendants. circumstances; aggravated by tress was judge may, he find it desir- trial should family good repute Baskin was of evidence, necessary, able or take additional recently bereaved. Their tenants moved he if he considers the but need not do so rather than risk another incident. The fact event, may adequate; evidence in that he charges no criminal resulted neither findings make these on the basis allays suspicion repairs nor the harm to testimony already he has heard. Moreover, reputation. damage some event, course, liability of Sheriff merely by done wrongful procuration deputy’s Parker acts is to be limited for his may the warrants. While these matters 33:1433 provided La.Rev.Stat.Ann. court, have been briefed to the trial and the (West). issues concerning may them have been inad- assert that it is im defendants equately framed, right to relief was further proper for this court to authorize testimony shown and covered taking regarding the amount of of evidence pleadings. judge The trial should have damages, any, appropriate if awarded a suitable sum for the emotional unfairly because this allows the injury suffered each of the defendants. opportunity prove second their case. The defendants assert that it was neces- practice While the is to decide a normal sary for the Baskins to show actual dam- trial, case on the record made at the first ages in order to recover for humiliation and authority the the defendants cite no distress, emotional and they failed to proposition evidence that additional showing. make such a Carey Piphus, v. not be authorized on remand in inter 1978, 247, 1042, 435 U.S. 98 S.Ct. 55 L.Ed.2d justice. Supreme The Court has ests 252, proof damage held that of actual Brown, v. taken similar action. See Storer required in a Section 1983 action 1974, 724, 1274, where 415 94 39 L.Ed.2d U.S. S.Ct. plaintiffs were merely procedural Associates, denied v. Rick Public Affairs Inc. process 580, due they over, 1962, 111, and 7 would have suffered 369 82 U.S. S.Ct. injury same ultimate they even if had L.Ed.2d 604. hearing. been afforded a plaintiff Brown, at supra, In Storer v. 415 U.S. properly discharged; the Court stressed 738-40, 1283-84, 94 at 39 L.Ed.2d at S.Ct. unwilling it was presume that dis- the Court vacated the district tress was caused the manner in which decision, part, remanded for court’s and effected, his termination was rather than proceedings, further because “to assess real- substantive itself. In istically imposes excessive- whether the law present case, however, ly requirements burdensome were merely deprived not procedural upon appear from the facts which do right. They injury suffered an improperly 415 evidentiary record in this case.” U.S. inflicted. There was direct evidence of ac- 738, 1283, at 728. 94 at 39 L.Ed.2d S.Ct. damage and, addition, tual injury real Associates, Similarly, in Affairs Inc. Public could be inferred from the Rickover, facts. See also Supreme v. Court re- supra, the Barnes, 1979, Duncan v. 5 Cir. 592 F.2d in the dis- proceedings manded for further complete full and trict court in order that a

1211 respondeat record could be made. See superior theory.” Public Affairs 436 U.S. at Associates, Rickover, 691, 2036, D.C.1967, Inc. 98 v. 268 S.Ct. at 56 L.Ed.2d at 636. original). F.Supp. (Emphasis in Court did not question mention the of state remedies for REVERSED AND REMANDED. rights2 invasion of civil holding that, decisions where vicarious lia RUBIN, Judge, ALVIN B. Circuit con- tort, bility imposed by state law for a curring part dissenting in part: incorporates Section 1983 the cause of ac I concur with opinion all save the tion and the remedy created the state. court’s refusal to hold the sheriff liable Carroll, 1972, McDaniel v. 6 Cir. 457 F.2d vicariously for acts of the sheriff’s denied, 1973, 1106, 409 U.S. scope within the course employ- of his 897, (sheriff); 93 S.Ct. 34 L.Ed.2d 687 Car I agree ment.1 cannot Supreme Carlson, D.C.Cir.1971, ter v. U.S.App. 144 Department Court decision in v. Monell 388, 398-400, 358, 368-70, D.C. 447 F.2d Services, 1978, 658, Social 436 98 U.S. grounds rev’d on other sub nom. District 2018, 611, expanding 56 L.Ed.2d re- Carter, 1973, 418, Columbia v. lief available interpreting under 602, (municipality); L.Ed.2d 613 municipalities it as applicable to and over- Hesselgesser 1971, Reilly, 440 F.2d Cir. ruling Pape, 1961, 167, Monroe v. (sheriff); Gerstein, Madison v. has also shrunk- (sheriff), Cir. 440 F.2d Lewis scope en of that remedial section v. Brautigam, 5 Cir. forbidding supplementation its with state (sheriff). Taylor Gibson, also 5 Cir. remedies and causes of action. (sheriff); Carter Estelle, (prison 5 Cir. 519 F.2d 1136 Concerning opinion administrator); Tuley Heyd, municipality in Monell said: “a cannot be (sheriff). solely held it employs liable because a tort- or, words, municipality other The primary my reason brethren advance feasor — cannot restrictively be held liable under 1983 under to read Monell is that eon- do, course, 1. Fifth Circuit cases hold that a This distinction is based a difference be police position authority chief is not liable the acts of his tween the of the “tradi participation officers absent tional” or “constitutional” and that of or ratifica sheriff cases, however, police usually the power tion of them. chief. Such a sheriff has These do deputies, precludes looking to hire and fire act in his establish a who rule that us from contrast, representative capacity. name in a law on the issue of a sheriff’s municipal police department the chief of a rather, has deputy; they for the acts of his reflect a officers; power police limited over subordinate commonly distinction state law makes between public right, in their servants own police sheriffs, chiefs and that of under, by, they protected are hired with tenure by which is followed federal courts those Carlson, supra, civil service laws. Carter v. guides instances where state law the federal 400, U.S.App.D.C. n.39; 144 at 447 at 370 F.2d generally subject rule. Police chiefs to not Gerstein, supra; Kelly, v. Madison Jordan v. police for the acts their fellow offi rationale, supra. Reflecting this it has been see, rule, e.g., cers under the master-servant authority held deputies when a his sheriffs over Gerstein, 342; supra, Madison v. 440 F.2d at by is limited civil service laws restrict Nosser, 1971, 183, Anderson v. 5 Cir. 438 F.2d them, power to hire and fire he is not 199, grounds, modifíed other 5 en Cir. banc vicariously for their v. liable acts. Madison 1972, 835, denied, 848, cert. 409 U.S. Gerstein, supra. No such limitations have been 53, 89; Kelly, 93 S.Ct. W.D.Mo.1963, 34 L.Ed.2d Jordan v. shown to tie the hands of the Franklin Parish 731, 737; F.Supp. 223 Pavish v. 27, 1974, V, Art. sheriff. See La.Const. of § Meyers, 1924, 605, 633; 129 Wash. 225 P. Ca X, 2(B)(10); Service § and Art. Civil Commis sey Scott, 1907, 1152; 362, v. 82 Ark. 101 S.W. Foti, 1977, 305; v. sion La. 349 So.2d Williams sheriffs, hand, generally on the other are sub States, E.D.La.1973, F.Supp. v. 353 United ject under state law to such for the 1226, 1233-34. See, deputies. e.g., acts of their v. Madison Gerstein, supra; Kelly, supra; Jordan Pav problems 2. The Court discussed the that would ish, supra; Casey, supra. generally, W. be raised of a federal law of re- “creation Anderson, Sheriffs, A Treatise on the Law of 693, spondeat superior.” 436 at 98 S.Ct. U.S. (1941). Coroners and 61§ Constables 2037, supplied). (emphasis at 637 56 L.Ed.2d at States, so far as such laws are suitable federal law into the tinue to read state effect; all availability of vi carry “would the same into but statute make liability depend upon the location adapted carious eases where are not and, states, the tort.” the nature of some object, provisions or are deficient in the conclusion, the agree While I with their remedies necessary to furnish suitable law still prospect alarming. is not State law, as modified the common the reach of Section determines much of by the constitution and stat- changed and law; on state whole section turns 1983. The . utes of the wherein the court State against “every it of action creates cause held, as not inconsist- so far the same is who, any statute . person color of under and laws of ent with the Constitution ” deprives . . another of State . States, shall be extended to United rights. other constitutional govern the said courts in trial limitations, sets the statute of law State (Em- . . disposition of the cause . . 1914, 318, Felix, O’Sullivan phasis supplied). 596, 598, L.Ed. liability is incon- Assuredly vicarious not Carlson, Knowles Cir. with the of the United sistent Constitution 369, 370, joined and state law claims imposition would the of liabili- States. Nor jurisdiction. pendent under Mil the court’s subordinate, ty for the acts of the sheriff’s Carson, ler Cir. 760-62; in the common Knox, responsibility long familiar Brown v. 900, 902, denied, the United U.S. law statute of violate 2950, 53 See Moor v. “di- say L.Ed.2d 1078. would be My States. brethren it Alameda, 1973, County U.S. construction” of rectly contrary Monell’s 715-17, logic: is circuitous Monell 1983 but this § 613. incorporation not does forbid the law; not of merely holds that 1983 does § State law is neither incidental nor irrele- liability. impose its vicarious own force shape vant to the of the tort created not reaching 1983 does the conclusion national of civil law for respondeat superior, create a federal rule of my under color of state law. Unlike parsing relied on a the Monell Court brethren, I 42 U.S.C. read Section legislative his- language and on its statute’s rejecting permitting, but as if 2036- 98 S.Ct. at tory. commanding, incorporation of state Neither of these 56 L.Ed.2d at 635-637. regarding liability. law That statute, superior below,3 preclude respondeat set forth in full reads in factors would pertinent part: theory where recovery as a under recovery on this basis. state law. allows jurisdiction .

The in civil . . mat- Supreme has not itself found Court ters . . . conferred on the district liability repugnant state-created vicarious chapter courts the provisions of this County of 1983. In Moor v. . Section shall be exercised and enforced Alameda, conformity in a footnote4 supra, with the laws of the United the court law, law, Proceedings as modified the common in vindication civil changed and statutes the constitution juris- having of the State wherein court jurisdiction civil criminal mat- held, diction such civil or criminal cause of by ters conferred the the on district courts with far the same is not inconsistent so as 18, provisions chapter of this Title for and laws of the United the Constitution protection persons the all of in the United States, govern to and the shall be extended rights, States in civil and for their vindi- disposition of the in trial and said courts cause, the cation, shall be exercised and enforced in nature, and, in the if it a criminal is of conformity with the laws of the United party punishment the found infliction of on States, so far as such laws suitable to guilty. . . . carry effect; the into but in all same cases object, adapted where to decision that are not the or 4. We of no lower court know contrary, necessary provisions To the are deficient the has held otherwise. the in rejected repeatedly punish have courts furnish suitable offenses lower federal remedies

1213 apparent against violence, mentioned with approval “neglect[ed] two Ku Klux or appeals reaching court of do,” indicate, decisions this re- as Monell so to does refuse[d] notes, sult.5 Congress that did not intend to im- pose municipalities liability vicarious on as legislative Monell relied on the history of law, accept- a matter of federal “even while 1983, predecessor a of Rights the Civil § Act ing the principle the basic that inhabitants 1871, of particularly rejection the community provide pro- of a were bound to by Sherman Congress. amendment Id. at against the Klux Id. tection Ku Klan.” at n.57, 2037, 692 98 S.Ct. at 56 L.Ed.2d at 636. n.57, 2037, 56 at 693 98 L.Ed.2d 637 This amendment imposed would have liabil- However, n.57. this substitute amendment on ity a municipality damage for inflicted pose prob- did not the same constitutional persons “riotously tumultuously as- amendment; lems raised the Sherman sembled.” Although this amendment was therefore, in lieu the its enactment of Sher- viewed opponents some of its creating man an amendment does not create infer- a form of liability, point vicarious a that Congress policy-based ence that a had ob- disputed was propo- amendment’s jection nents, imposition liability vicarious id., on really would imposed have a municipalities where such is im- rule strict liability, not respondeat supe- posed by state law. rior. The Monell Court recognized itself that the amendment was largely defeated support The Monell Court also found on the basis that it indirectly imposed on 1983, statutory language the which § municipalities obligation keep the subjects liability any person who “caus- peace that could be imposed directly; not rights. es” a of civil It conclud- opponents questioned whether such an language Congres- ed this reflects a obligation could constitutionally be exacted impose sional intent not to vicarious liabili- agency govern- ty governing bodies. Because word ment. 672-682, n.57, Id. at 692 98 S.Ct. at “causes” is not a term of art that necessari- 2029-32, 2037, 627-630, 56 L.Ed.2d at 636. ly precludes liability, Court

The enactment aof Congress second conference looked to the enacting intent of substitute amendment that provision guidance limited this for interpreting who, to those having power to intervene language. legisla- this Court cited argument independently deprived § 1988 prisoner a creates his a civil where federal cause of action for the provided violation state law such vicarious liabili- rights. Jordan, federal civil See Pierre v. court, 333 ty. sure, authority to be found 951, (CA9 1964); Somers, F.2d 958 Otto v. incorporation of state law into federal 697, (CA6 332 1964); Pay 699 Post v. acting law in but § it was in the context ton, F.Supp. (E.D.N.Y. 323 802-803 brought against of a suit on the sheriff 1971); Johnson v. New York State Education Lewis, basis of Likewise where Dept., F.Supp. (E.D.N.Y. 1970), sheriff was held to be liable for the civil aff'd, (CA2 1971), 449 F.2d 871 vacated and deputies light violations of grounds, remanded on other imposed state law which —a (1972); Dyer 34 L.Ed.2d 290 apparently upon decision which also rested Abe, F.Supp. Kazuhisa 228-229 1988, although specifi- section was (Haw.1956), grounds, rev’d on other cally properly cited —the of action cause (CA9 1958); Schatte v. International Alli simply based on do § 1983. These decisions ance Employees of Theatrical State and Mov support suggestion 1988 alone Operators Picture of United States and authorizes the creation of federal cause of Canada, F.Supp. (S.D.Cal.1947), aff'd County. here, against action And as dis- curiam, per (CA9 1948); 165 F.2d 216 cf. In below, as a cussed 1983 is unavailable basis Stupp, (No. 13,563) re 23 F.Cas. County. for suit (C.C.S.D.N.Y. 1875). 704, n.17, 411 U.S. at 93 S.Ct. at upon Petitioners’ reliance this case Hes- L.Ed.2d at n.17. selgesser Reilly, (CA9 1971), Brautigam, and Lewis v. Moor, supra, apparent approval is cited with (CA5 1955), misplaced. Hesselges- Monell, n.9, n.66, supra, in 436 U.S. at ser, Appeals the Court of ruled that a sheriff 2023, n.9, 2041, n.66, 98 S.Ct. at 56 L.Ed.2d at vicariously could damages be held liable 619, n.9, 642, n.66. wrongful deputy for the act of his which 1214 561, (a above, action that did not L.Ed.2d 1983 history

tive discussed and also rea law that, respondeat superior incorporation of a state soned because involve the based, part, a notion that accidents action). on cause of

might employers be reduced if are held Park, Inc., Hunting v. Little In Sullivan employees, actions of their liable for the 400, 406, 229, 239-40, 90 396 U.S. S.Ct. liability impose duty a mu would on 386, 393-394, held that 24 L.Ed.2d the Court nicipalities rejected Congress similar to that state rules permits either federal or 1988 it when defeated the Sherman amendment. enforcing a on to be utilized However, opponents even the of the Sher civil cause of action created recognized man amendment that civil liabil laws, better serves whichever ity damages might properly imposed state law statutory policy. Application of a municipality on for its failure to control protec- liability would further duty the acts of its citizens where the to do 1983 tion of civil intended imposed by so is state law. at See id. judgment- a providing remedy a where 678-680, 2030-31, at 98 S.Ct. 56 L.Ed.2d at agency (not any state proof employee of 628-629; referring Repre to remarks of individu- only municipality) infringes a an. Poland, Cong.Globe, Cong., sentative 42nd It also be consistent rights.7 al’s civil would Burchard, (1871), 1st at Sess. id. at judicial adminis- principles with federal Willard, Therefore, id. at 791. we have point. on this apply tration to state law no using reason to believe the word 1983, Congress “causes” in section intended By a few short sentences the liability exclude vicarious in those in law claim incorporated a state could have provides stances where law it.6 so, done complaint. into their Had Blum, See From Monroe to Monell: Defin certainly heard the claim court should have Scope Municipal Liability Fed jurisdiction. pendent under the doctrine of Courts, L.Q. 409, Temple eral 412-13 & 715, 726, Gibbs, 1966, 383 U.S. UMW n.15, 440-41. 1130, 1139, Pi S.Ct. Mercadante, trone Indeed, the use of the word “causes” in denied, 99 S.Ct. 439 U.S. may “person” indicate that have been 58 L.Ed.2d 120. It would imposes liability responsible whom the act separate suit in state pointless require a vicariously for the acts of another. See facts. The involving court the identical CIO, 1939, Hague have been only additional issue would (equitable appro- L.Ed. relief acting was in the whether priate government acquiesce where officials question employment, course of his subordinates). Application acts of evi required little additional would have state law vicarious here is consist- dence, could have been heard in all of which ent with the use of this term because it perhaps plaintiffs, a few minutes. The subjects who someone has future, will suffer as a result others in the “caused” the in the sense that it fact, in pleading. of inartful this case brought was person about under his supervision, plaintiff’s that the state law is conceivable normally for whose acts he is responsible, prescribed. and whom he have better now be These are all claim pragmatic trained or directed. reasons that reinforce the basic Compare Rizzo Goode, 1976, premise: blending of state remedies cost-sharing justifica imply prejudgment 6. The I no of the effect of the risk allocation respondeat superior liability impose tion for if the result is to was insuf eleventh amendment Monell, justify supra, agency. ficient to See the Sherman amendment be on a state n.54, 2035-36, subject cause it to the same constitutional 436 U.S. at 690-91 Monell, objections. supra, 436 U.S. at L.Ed.2d at 635. 693-94, 98 S.Ct. at 56 L.Ed.2d at 637- Congress did not indicate an intent preclude cost-sharing where those constitution objections al are absent. into desirable reinforce its America, UNITED STATES of purpose promise, and fulfill its and that Plaintiff-Appellant, prohibited by by union is neither 1983 nor reading statute.8 Monell of that PAYNE, Defendant-Appellee. E. Wilburn 78-3735. No. gives

It is law ironic Louisiana plaintiffs greater Appeals, relief for the violation States Court United Fifth Circuit. federal than constitutional9 Appeals this States Court of United allows. Sept. 1979. The vindication of constitutional Rehearing Rehearing En Banc sought by Rights Civil Act Oct. Denied Injured should grudging. plain- not be so tiffs should be remitted to attempts

satisfy judgments against insolvent defend- permit

ants when state law would them higher

look to a official. Federal courts give

should the same full

measure of in one that they relief suit could two,

achieve in or could have obtained in a

single by plead- federal action more astute

ing. by suggested duty imposed Commentators have if Monell able for violation precludes incorporation duty imposed state by law vicarious well law as as a law. action, plaintiffs may E.D.La.1973, States, in a still Williams v. United municipalities be able to recover from on vica- F.Supp. 1226. liability grounds through implied rious rem- subject still be A Louisiana sheriff edy action based on the fourteenth amendment. deputies, for the acts of his al- Blum, Defíning From Monroe to Monell: though in 33:1433 was amend- LSA-R.S. Scope Municipal Liability the Courts, in Federal following paragraph, by deleting which ed Temple (1978). 418-19 L.Q. language cited contained the above: Note, Services, Department Monell of Social state, any parish no this That sheriff of (1978); Note, 47 U.Cinn.L.Rev. 676-77 sureties, nor his be liable for act or shall Court, Supreme Liability 1977 Term: of State by deputies, tort committed of his or one and Local Governments under U.S.C. person deputy sheriff commissioned (1978). 320-21 Harv.L.Rev. him, beyond bond fur- the amount of the sheriff, deputy property nished said said 9. When search unless of the Baskin oc- curred, sheriff, subjected Louisiana in the commission of the said law a sheriff to tort, “any compliance act or act acts in tort committed one with direct of, of, deputies,” (1950), personal presence of his LSA-R.S. 33:1433 order and in the See, employment. sheriff, within the course of his e. time the or tort said act g., Hampton, La.1977, Foster v. 352 So.2d committed. remedy 201-02. Thus Louisiana was avail-

Case Details

Case Name: Gary Baskin and Beulah Baskin v. Eugene Parker and Curtis L. Smith

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 24, 1979

Citation: 602 F.2d 1205

Docket Number: 76-4071

Court Abbreviation: 5th Cir.