Henry Lee Bryan v. Clarence Jones, Sheriff, Henry Wade, Dist. Atty., Fidelity & Deposit Co. Andlena Giddens
519 F.2d 44
5th Cir.
1975
Check Treatment

*1 GOLDBERG, Before CLARK and Judges. Circuit CLARK, Judge: Henry Bryan brought Lee seeking monetary damages Clarence County, Sheriff Dallas Texas, Henry Wade, surety; and and his Dis- County, Texas, Attorney for Dallas trict Giddens, employee. Lena his From jury verdict surety the Sheriff appeal attacking the trial court’s refusal the jury to instruct faith was charge a defense to the of false imprison- ment. Error is also asserted in the proof of permit court’s refusal to imprisonment relative to the prior dam- ages claimed. We hold refusal was not error but that the instruct bar accordingly was and vacate the proof for a new judgment and remand trial on only. damages the issue February imprisoned was Bryan charge automobile 1972 on theft. charge was dismissed on March This not released until 1972 but days some 36 later. An April preparation in defendant Giddens’ error upon grand jury report, of a Sher- relied, indicated contin- iff charge, on another ued under indictment contrary to other records in the Sheriff’s charge this second office which disclosed ' n person w' different speci similar name. In answer *2 45 imprisonment only, a claim false found, we inter terrogatories the alia: that concluded defendant failed to estab- grand jury report the was a (1) that plaintiff his lish that detention of was Bryan’s imprison- cause of proximate good reaching in faith without made the after March but that defendant ment underlying issue of whether this defense negligent preparing in was Giddens applicable would have been present. if (2) report; that the Sheriff’s the office Thus, the Whirl v. Kern decision that report on in imprisoning. the relied is good faith not a defense 1983 3; § (3) after March that it could be imprisonment for false action remains anticipated by reasonably District Attor- precedent only circuit, the in this Wade’s office that Sheriff Jones ney binding upon is E. g., such us. Bur- (4) rely report; on the that Wade would roughs States, v. United 515 F.2d 824 failing negligent in to advise Jones was Cir., (5th 1975). legal authority impris- he no that Bryan after March and that rejection good This of the de faith proximate negligence was cause of imprisonment fense in a false claim is in thereafter; (5) confinement that Sheriff existing with Supreme accord Court make a failed to reasonable and Jones guidelines. pointed As out Whirl v. investigation legal into timely the au- Kern, supra Ray, Pierson 386 3; thority imprison Bryan March after 547, 555-56, 1213, 1218, 87 U.S. (6) damages that suffered (1967), Pape, L.Ed.2d and Monroe $40,000. Following a judg- the sum 167, 187, notwithstanding the verdict ment for (1961), L.Ed.2d held that “§ Wade,1 Attorney the District court background be the read [should] $40,000 judgment on the awarded liability” “thereby of tort made and, verdict jury’s Sheriff Jones ‘good faith’ a defense to suit under of its undertaking, against extent to the only where it is also a defense § surety. his prevailing the ‘under view tort [of law] ” pre country.’ Id. at 791. The sought instruc an Jones Sheriff vailing view not permit does the defense a defense faith was good that tion good charged faith where the tort is of false claim imprisonment. United false ex States predicated was refusal court’s trial The Rundle, F.Supp. rel Jones Whirl v. holding in court’s upon (E.D.Pa.1973). In an im false Cir.), cert. de (5th F.2d Kern, 407 liability al prisonment “[t]here 210, 24 901, 90 S.Ct. nied, though the defendant believed (1969). Sheriff L.Ed.2d justified, arrest that the or faith subsequent that surety contend acting plaintiff’s the that he Wilkins, 467 F.2d Dowsey v. decisions Prosser, good.” W. The Law of own 1972) Johnson (5th Cir. 1022, 1025 (4th 1971). Torts, p. 11 at ed. “To § 104-05 Greer, 477 imprison the actor liable false make [for request the instruction 1973), authorize ment], it is necessary that he intend contain eases both While ed. the other. . ac to confine . . The contrary acceptance implying confining so motives in the other tor’s ultimate issue decided view, neither Torts, are immaterial.” Restatement of de faith applicability of of the Second, p. (1965). a. at comment action. a false fense recognize Whirl’s refusal to arrest a claim Dowsey involved impris- to a charge faith defense of false period a with short intimately enmeshed has not been modified by onment recent Johnson, involved custody. Attorney judg-

1. District statutory authority Wade’s motion for Texas was no there notwithstanding ment upon imposing the verdict was a dis- based an affirmative law upon court’s attorney legal investigate determination basis for trict personally concerning prepa- exonerated Wade prisoner’s confinement. each grand jury report ration of the and because permitting parties given Court decisions as The been an develop as a opportunity defense to all sertion factual ele- attacking discretionary damages. 1983 suits ac ments which related One g., suffering officials. tions various state E. such element is the caused Donaldson, incarceration, very fact absent O’Connor *3 396, 2486, concerning 45 43 the condition or any S.Ct. L.Ed.2d U.S.L.W. issue of (June 26, 1975); Wood a 4929 v. Strick reason for such incarceration. Even land, penal may minimal sort of confinement Rhodes, (1975); many. L.Ed.2d 214 v. debilitating compa- Scheuer to Under be confinement, 416 U.S. (1974). S.Ct. 40 L.Ed.2d 90 conditions of rable ever, how- grant anguish These a qual cases find this mental be much immunity than necessary ified less for the recidivist for one incar- the state official’s where functions in for the first time. cerated See Ford the exercise Wells, (E.D.Tenn. volve of discretion to F.Supp. ensure timely, principled and Briggs, fearless 1972); decision- Alamo Downs ^ making. Ray, See supra, Pierson (Tex.Civ.App.1937). S.W.2d Discretion, Therefore, at at 1218. prior U.S. S.Ct. imprison- the fact n essential element in the lacking these to cases is a consideration the ment is extent here. A sheriff’s suffering by to dis occasioned the mental wrongful charge prisoner a has legal right he no Accordingly, confinement. is solely

to hold a ministerial task. the No cause must be remanded so that reposes jailer discretion in the damage who im bemay issue tried anew. a man

prisons says the law should be assignments Defendants’ er- other and such free an officer commits a tort ror are without merit. prisoner he unless releases his within a Vacated and remanded. being reasonable time of ordered to do Kern, supra Whirl v. so. 792. It may Judge (dissenting part the be that Court will extend concurring part): and good faith defense a impris false action, essentially In this for type onment situation of the presented Plaintiff-Appellee imprisonment, by say case. We that it has $40,- judgment Bryan was awarded yet done so beyond and that it is jury on a verdict scope panel’s of this authority to look County, part Dallas and in Sheriff against say Whirl past they will. surety. Jones’ This resulted The Sheriff surety have also as- conflicting instructions from from above. signed as error the trial court’s refusal Attorney The District had dismissed permit evidence of prior charges upon Bryan which was held. record mitigation was an preparation There error damages. The trial court per- refused to jury report, upon report which grand introduction of such mit evidence con- relied, jury found and which cluding that the previ- fact that he had continued under Bryan indicated indict- ously been lawfully imprisoned would be By the time these matters ment. were Bryan irrelevant sought because dam- unscrambled, spent had thirty-six ages only for suffering mental caused jail many days in under conditions too knowledge that he was wrongfully sufficiently overcrowded otherwise apparent restrained with no possibility of produce as to a verdict ex- unpleasant agree We release. cannot that it $1,100 day. ceeding per Jones and his cut so fine. surety appeal, and we vacate for the rea- majority end of the stated at the sons charge jury The court’s In I concur. opinion. these phys damages it to award instructed however, Defendants, sought an in- suffering. Bryan mental ical defense, faith as a struction of the adverse proof to adduce allowed it, assigned refused was confined. were he under conditions interrogation alia, place of and deten- refusal, error. has inter right out, underlying there is no it falls that tion if successfully as rejoined, Kern, deprive person that of his freedom. decision in Whirl denied, 1968), cert. Ray, 386 Pierson 210, 24 901, 90 L.Ed.2d 177 S.Ct. (1967), 18 L.Ed.2d 288 held not a defense to a faith is (1969), officer’s a reason an assertion of that false-imprisonment-type action. he good faith belief that able the defendant a case where Kern probable cause arrest created parlay finding sought sheriff issue in Section 1983 overholding prisoner negligence no false arrest and him for faith, one of months into nine result, reasoning to this the Su opinion supports emphasized that preme Court actions Bryan’s position.1 *4 analogous 1983 were under Section to however, has, explicitly court Our actions and therefore a defense tort view in more a different recent adopted which would establish that no tortious type, today and until of cases in fact wrong had been committed was view of the Kern rep- type in available either suit. equally possible a road once but not good resented This kind faith would be as Dowsey, example, a taken. to a in a applicable defendant Section 1983/false-imprisonment case where a for false 1983 action un interrogated and had detained by sheriff accompanied any claim of false ar plainly desperate in a effort to juvenile However, good mere intentions rest. drug which his identify the unconscious give not rise do reasonable which taken, hospitalized companion had and lawfully that detention is re belief specific language in about false justify we held imprison cannot quired dicta, in which is no sense imprisonment, the action is founded in ment whether majority now disavows: but under Section 1983. Whirl tort or See 781, Kern, (5th 407 F.2d 790-791 v. and Chief con- The Sheriff Police denied, 1969), 901, cert. 396 U.S. Cir. only they in acted an at- tend (1969). 24 L.Ed.2d 177 90 S.Ct. to save Robberson’s life tempt and use good are entitled to their Wilkins, Dowsey thus v. 467 F.2d an absolute defense. This is 1972) (emphasis added).

faith (5th Cir. Jones’ law view of false (and refused) an erroneous charge in requested matter how No lauda- the above distinc- precisely case draws of the tory the motives Sheriff and “mere tion between intentions” and been, Police have Chief good faith belief” that he' a “reasonable are not motives alone sufficient such Bryan, ap- and restrain privilege them arm with a detain adapted from pears to have been our interrogate hours, a citizen for and language. What could be more above jail him with unless he tells threaten by Dowsey Kern is cited natural? know, they what want and them authority panel as for this view. And attempt prevent leaving then citing cases Dowsey later confirm g., Ray ly-intended import “As we Pierson v. 1. E. read and Mon- of the case. As we noted Pape, Waller, non-negli- neither faith nor roe v. 1274 n. v. F.2d 6A Burton exculpate denied, gence liability.” 1974), (5th Kern can from cert. Cir. F.2d, explicit Despite language, S.Ct. 43 L.Ed.2d 43 U.S.L.W. 3474 we, Wilkins, Dowsey 4, 1975), (U.S. v. 467 F.2d our sister circuits noted March (5th 1972); Greer, negli Cir. Johnson v. based on the read Kern as defendant’s (5th 1973) impossible square gence, F.2d Cir. Donaldson v. a construction O’Connor, (5th 1974), opinion language, 493 F.2d 507 Cir. but with our Burton its Circuit, Averett, gross negligence v. Fourth in Jenkins also the that even refuses to concede (4th 1970) liability Today’s Seventh 424 F.2d Cir. it. resur suffices Brishke, Circuit, Byrd (7th liability mandating 466 F.2d 6 Cir. absolute is rection of it as 1972), untimely been unable to live with the clear- indeed. rehearing en banc plication for availability as a defense of the sort majority judges of the active service here—not a mere asserted having granting a re- voted favor generally-laudatory motives—in

claim banc, hearing en just this. such as cases Donaldson v. (5th 1974); It is the cause shall 493 F.2d Cir. ordered that O’Connor, en banc with reheard the Court oral Greer, Johnson 1973). argument Court on a hereafter to be Recent decisions date area, specify briefing will though not about sheriffs or fixed. The Clerk in the filing supplemental recognize schedule for the generally jailers, existence 1983 actions briefs. of this defense Strickland, public officers. Wood 992, 43 L.Ed.2d 214 308, (U.S. (1975); 43 Feb. U.S.L.W.

1975) (school members who were board snap scarcely making decisions under America, STATES UNITED Rhodes, pressure); Scheuer Plaintiff-Appellee, (1974) 40 L.Ed.2d 90 (state guard governor, national officers PHILLIPS, L. Thomas some, university president, but not Defendant-Appellant. whom, were). We now all of hold that 75-1818 No. faith, neither malice nor verse, its con- *5 Summary Calendar.* significance is of sufficient even Reading it. about

to ask Dow- United Appeals, States Court of circuit, progeny its in our it ney, Circuit. Fifth put high say too does not matters Sept. jailer A I am confounded result. conflicting

so unfortunate as to receive instructions,

as did must divine at peril say when we what we mean not, I, task to which do

when we

least, unequal. am here established who in faith holds

One bad another

whom he has been ordered to release is mulcting, reason,,

entitled whatever one decrees. But who acts in it

good faith and can show should not be jailer. being

punished have been allowed chance to It

establish his faith. should be a defense. I would reverse.

held

ON PETITION FOR REHEARING

AND FOR REHEAR- PETITION BANC

ING EN BROWN, Judge,

Before Chief BELL,

WISDOM, GEWIN, THORN- COLEMAN, GOLDBERG,

BERRY,

AINSWORTH, GODBOLD, DYER, CLARK, RONEY and

MORGAN, Judges.

BY THE COURT: in active

A member of the Court serv- poll ap- on the having requested

ice * 5 Cir. 1970, 431 F.2d 409, Part I. 18, Cir.; Enterprises, Casualty al., Isbell Inc. Citizens Co. New York Rule see et . v