Virgil Norton, Virgil Wesley and James Chapman v. James P. McShane

Ala., Montgomery, Mississippi, Varner, Robert when the defendants unlaw- fully maliciously appellants. arrested them with- probable out cause. The fur- Cohn, Swartz, Stephen Sherman L. B. allege ther mali- defendants Douglas, Attys., Dept. Justice, of John ciously charges detained them without Atty. C., Washington, Gen., Asst. D. H. twenty-one during hours, for which time Ray, Oxford, Miss., Atty., M. U. for S. they rigid position were to sit in a made (cid:127)appellees. eighteen speaking, for hours without RIVES, Before WISDOM and GEW- eating, drinking. They allege IN, Judges. Circuit the defendants them forced to witness nauseating and horrible mistreatment of Judge: RIVES, Circuit others, fingerprinted “mugged” and them, subjected and them “to all manner appeal essen- of three consists This of vile abuse tially actions, and mistreatment.” for More- consolidated identical allege over, they puni- ma- appeal, the defendants of actual and all which seek liciously battery damages committed deprivation assault of and tive for large billy on them with plaintiffs growing stick or club. of (cid:127)certain allege Other conspiracy counts Oxford, near Missis- de- out of their arrest deprive plaintiffs equal fendants to plaintiffs sippi, on October 1962. The protection Virgil equal Norton, Wesley, privi- and Virgil laws -are leges and Chapman. immunities under laws Named defendants (cid:127)James prevent Katzenbach, Deputy hinder state authorities B. -are Nicholas de giving States; equal protection. from Attorney them United General apparently seeking McShane, relief the Execu- (cid:127)James P. Chief of Marshals; under both common law and the Civil tive Office the United States Rights Acts, Doar, 1985(3). Assist- U.S.C. -John First Assistant §§ Attorney Rights General, Divi- (cid:127)ant Civil I. Common Law. sion; Tucker, Deputy Unit- and William Any involving the doctrine were com- Marshal. The (cid:127)ed States suits executive or requires official Lafayette menced in the Circuit Court of n County, Mississippi, and sharp court to resolve a conflict be removed were important tween two considerations: States District Court protection individual citizen Mississippi. the Northern District against damage by oppressive caused 1442(a). 1441(a), ‘See 28 U.S.C. § part malicious public action on the Treating the defendants’ motions to dis- officers, protection public summary judgment, miss as motions by shielding responsible govern interest the district held court mental acting harassment scope within and inevitable hazards vindictive or authority of their from are immune damage ill-founded suits liability alleged based on acts ‘(cid:127)the Its these suits. n opinion done in the exercise of their (N. official reported res at 33 F.R.D. 131 ponsibilities.1 D.Miss.1963). having complaints Their dismissed, plaintiffs brought judicial, legislative, As to appeal. this officers, executive to determine test plaintiffs allege October the existence of from suits for (the day following monetary recovery allegedly the enrollment based on n Meredith, Negro, wrongful James H. at the conduct is whether or not the University Mississippi) were rid- scope officers were within the ing highway ap- an discharge automobile on a their or in proximately Oxford, four miles east of controversy their duties. The has cen Matteo, 1. Barr denied, cert. 1434; Gregoire 3 L.Ed.2d 94 L.Ed. 1363. Biddle, 2 Cir. broadly “scope of a trial in- of au the burden and to the how tered around danger e., interpreted outcome, thority” evitable its would should —i. dampen ardor of all but the most within the offi acts be would malicious Initially, resolute, irresponsible, authority? scope the most cers’ unflinching discharge interpretation of au broadest legis again Again pub- judicial thority applied duties. protect lic calls them interest for action lative officers so as may turn out to be founded on a for actions taken civil suits to recover mistake, func in the face of which of their official them in the exercise may tions, irrespective hard with official later find himself of the motives put satisfy jury it of his to have to to which those acts were good By performed. must ixxdeedbe 1896 this broad faith. There been punishing public interpretation to means over been carried had departments, provided du- who have been truant to their heads of executive ; quite is mat- ties but that another the action had “more less connection by general exposing ter from honestly such as have been with matters committed the by anyone supervision.” mistaken to suit law to control [their] 483, Spalding Vilas, who has errors. suffered their v. case, As is so the answer 16 L.Ed. 780. often the in be found a balance between After that the in must time doctrine broad began terpretation spread the evils in alterna- to subordi inevitable either to officials, directly leading pres has tive. instance it been nate to this the thought ap end to ent in the better leave state of the law.2 The modern wrongs by proach exemplified dis- unredressed done to official is subject by Judge opinion honest those offieex’sthan Learned in Gre Hand’s goire duty try Biddle, Cir.1949, do who v. Judg- denied, constant dread retaliation. cert. 70 S.Ct. nova, Judge not ed as res we should hesi- 1363. Hand's oft- analysis path quoted laid in to follow the down is as follows: tate the books.” 177 F.2d at 581. saying go without “It does indeed guilty official, in who fact that an This law is bind- statement made spleen using powers to vent his ing by approval his express af- on us person- upon others, any other or for in Barr forded it with the al not connected motive 571-72, Matteo, 1959, 360 v. escape public good, liabil- not should Supreme Court 79 S.Ct. 1335.3 The cause; may ity injuries he for the so allegations clearly mal- indicated that pi’actice possible and, in if it were ap- prevent not ice sufficient complaints to the to confine such immunity: plication “The of executive deny guilty, monstrous it would be with- taken was fact that the action here justification recovery. for do- petitioner’s perimeter of in outer ing impossible to so priv- duty enough render line is well claim know whether allegations ilege applicable, despite the has ease until founded * * complaint officials, of malice in the tried, and that submit guilty, at 1341. 360 U.S. at 79 S.Ct. well as the innocent as history Although involved a suit Barr v. Matteo 3. 2. discussions this Excellent majority opin defamation, may Biddle, Gregoire based in be found Samos, clearly implies Papagianakis law supra, rules of n. v. The ion denied, apply expressed tort suits to civil cert. therein opinion generally; been so and the L.Ed. 1354 71 S.Ct. See, subsequent (1951); Developments cases. Law-Reme construed g., Wood, Against dies Its Bershad 9 Cir. the United States and e. Officials, Harv.L.Rev. 834-3S (1957). requirements within the act be tails. It is not the of his title office duty perimeter the duties par- is no outer line with which the way stating sought doubt another ticular officer to be made to respond damages act have more or less connection is entrusted— general complained with the matters committed the relation act supervision, law to the control or officer’s ‘matters committed manifestly beyond palpably supervision,’ Spalding his not be control authority. Spalding Vilas, Vilas, supra, page his See su- 161 U.S. at pra U.S., page at 498 S.Ct. 631. S.Ct. at 637 —which must provide guide delineating supra, Matteo, In Barr v. scope of the rule which clothes the rank Court also held that official acts the executive officer officer, itself, does not determine the from civil defamation applicability of the doctrine: 572-74, suits.” 360 U.S. at princi- think “We (Emphasis added.)4 do ple properly in announced Vilas can limiting There another factor be restricted to executive officers —the nature the duties. It is often rank, in cabinet fact it never said perform that the officer must be by has been so the lower restricted ing “discretionary function.” In Ove privilege federal courts. The is not Contracting Floete, Gustavsson Co. v. 2 badge of- emolument of exalted Cir.1962, 655, denied, 299 F.2d cert. fice, 374 expression policy but an de- aof 827, 1862, signed in 10 L.Ed.2d to aid the effective func- government. tioning Judge explained The com- Medina what this re plexities magnitude govern- quirement actually means: great activity mental have become so paper “There is litmus test necessity must of there be del- * distinguish *, acts of discretion egation redelegation of author- require finding and to of ‘discre- ity many functions, we merely tion’ postpone, would for one say cannot these functions be- step process reasoning, important simply come less because question— determination of the real by low- are exercised officers complained is the act result of hierarchy. er rank in the executive judgment or decision which it sure, necessary “To be occasions of- Government of an ficial which the acts the head ex- free make without fear department protected ecutive will threat of vexatious or fictitious liability privilege personal suits are doubtless far ?” of an offi- 299

broader than F.2d at 659. sweeping cer functions. with less ap The federal courts have higher But is because the plied immunity the doctrine of official range post, broader re- to suits officials for numerous sponsibilities duties, and discretion, many great By wider the it en- different torts.5 (Acting policy place would Director Office of Rent Sta “[S]ound seem on defamation); ground involving level bilization —malicious How official duties judgment Lyons, 1959, ard v. S.Ct. the exercise and discretion.” 79 Contracting (Commander v. 3 1454 Ove Gustavsson Co. L.Ed.2d Shipyard defamation); Floete, 2 Boston Naval 299 F.2d — Gregoire Biddle, supra, (Attor denied, v. 1 cert. 374 note 83 ney 10 L.Ed.2d 1050. Di General the United Enemy rector of the Control Unit following although cases, 5. The list of Department Justice, Direc District exhaustive, gives no means some idea Immigration arrest); application tor of of the breadth of of the doc —malicious Matteo, supra, Contracting v. 1 trine: Barr note Ove Co. v. Gustavsson 860 authority,

weight of- case would enforcement seem to be now controlled from civil Barr ficers are immune suits based v. Matteo and Gustavsson.6 allegedly See, g., acts. e. malicious Up Cooper O’Connor, App.D.C. this time we have not re v. brought 1440; ferred cases 99 F.2d A.L.R. the Civil Rights Acts, Brautigam, Willis, such as Lewis v. D.Alaska Swanson v. Cir.1955, per curiam, F.Supp. A.L.R.2d aff’d question Cir.); Laughlin Garnett, (9th involved in these extent, 931; any, cases U.S.App.D.C. is the if to which Rights abrogated E.D.S.C.1956, Civil Clary, Acts 141 F. the im Hartline v. munity Olesen, Supp. doctrine. While it S.D.Cal. Toscano clear that legis F.Supp. the common-law Koz- 118. The case of afforded judicial8 S.D.N.Y.1954, applies Ferrara, lative 117 F. lowski v. among Rights Acts, Supp. 650, suits under the Civil stands alone there uncertainty agent holding remains much an FBI as to the ex cases high enough position responsi- tent in a subordinate immunity. applies, bility applies executive officials That be entitled if it (Contracting psychiatrist Floete, supra, imprison ernment Of note —false ment) Papagianakis GSA); . ficers of Samos, supra, (Immigration note Of Hughes Johnson, 6. There is dicta Cooper imprisonment); v. ficials—false 1962, 67, 70, 9 Cir. 305 F.2d there O’Connor, 1938, App.D.C. 100, F. 69 99 immunity is no unlawful search 135, (FBI Agent, A.L.R. 1440 2d Comptroller 118 and seizure. No was cited Currency statement, for that and it would seem Attorney, States United United contrary holding to be to that court’s Attorney, Assistant States etc. United Wood, 1961, in Bershad v. 9 Cir. 290 prosecution); Laughlin —malicious v. F.2d 714. Rosenman, 164, 1947, U.S.App.D.C. 82 being point Special We (President’s do not consider as 163 F.2d sel, Attorney General, Special Coun 838 Colpoys Foreman, 1947, such cases v. as Assistant 349, U.S.App.D.C. 908, Attorney General, 82 163 F.2d to the Director of Fed McVey N.D.Tex.1926, Gross, Penitentiary— Prisons, v. 11 F.2d eral Warden 379, prosecution); since involved suits on a stat malicious v. Brownfield utory 544(c); U.S.App.D.C. Landon, 1962, 248, bond. See 28 U.S.C. cf. 113 307 Willis, supra 5, 435, 389, denied, Swanson v. n. 924, at F.2d cert. S3 Likewise, F.Supp. 114 291, (Air Wilson v. Bit S.Ct. spector- defamation); Laughlin 9 L.Ed.2d 232 Force In tinger, 1958, U.S.App.D.C. 403, 104 262 v. Gar — F.2d nett, U.S.App.D.C. was based sections 11-735 78 138 F.2d (United Attorney, and 11-724 of D.C.Code. 931 States Police prosecution) ; Officer—malicious Swanson immunity afforded federal Willis, D.Alaska, 1953, F.Supp. v. 434, by 114 governed officers is federal law. See per curiam, (9 aff’d 220 F.2d Wheeler, 1963, 440 Wlieeldin v. Cir.) (Deputy United States Marshal— 83 S.Ct. 10 L.Ed.2d 605. battery, arrest); Wood, false Borshad v. In common law actions state of- supra, (Internal ficers, note 3 Revenue Service Alford, such as in Nesmith v. Officers); Nelson, Waterman v. 2 5 Cir. F.2d 318 the doctrine (Director Civil 965 Serv is controlled state law Region); Zuieback, ice v. Koch Tompkins, S.D. under Erie R. R. v. 304 Cal.1961, F.Supp. 651, aff’d, Cir., 194 58 S.Ct. immunity 82 L.Ed. 1188. In (local officials); draft board Nesmith was not raised as a de- Clary, E.D.S.C.1956, Hartline v. except quasi-judicial 141 F. fense ficer, as one of- Supp. (Special Agents of Alcohol & who was in fact held to be immune. Tobacco Tax Division—malicious as Tenney Brandhove, 1951, 7. See v. sault) ; Gamage Peal, N.D.Cal.1963, v. F.Supp. (Air ; doctor) Force Olesen, S.D.Cal.1960, Toscano v. 189 F. See, g., Fox, Kenney e. 6 Cir. Supp. (Postal Inspector); Blitz v. supra case, 232 F.2d 288. The Nesmith Boog, (Gov 2 Cir. category. n. fit into would seem to this all.9 In our at view of conclusion later this Court and of the United States opinion in this that the instant suits are District Court the Southern District purview Mississippi. Kennedy’s not within the Civil Mr. affidavit Rights Acts, we do not decide at this concluded: time the of official “That relevant times and only say those statutes. We need places complaints set forth in the given may the doctrine more limited Chapman James P. Mc- (sic) James application in those suits than Shane, Virgil Wealey al., et given at commonlaw. al.; McShane, Virgil P. et James McShane, al., Norton v. P. James et We are left to the hard choice of de- Doar, Katzenbach, Mc- ciding extremely aggravated whether discharging Shane Tucker were wrongs complaint governmental responsi- their official remain unredressed because of the coun- Deputy bilities—Mr. Katzenbach as tervailing public policy consideration of Attorney General and Mr. McShane expressed supra, Matteo, in Barr as Chief of the Executive Officefor U.S. at 79 S.Ct. at 1342: United States Marshals and as a sure, “To be of law rule Deputy Marshal, Mr. States attempts which mentally antagonistic to reconcile funda- Department Doar anas officerof the policies, social Justice, and Mr. Tucker as a may there be occasional instances Deputy United States Marshal.” injustice go actual which will unre- dressed, price we think that Attorney In the face necessary greater pay one to for the affidavit, General’s cannot good.”10 allegations rest the mere of their complaints unsupported sworn testi To malee the court’s diffi- choice less mony. It became incumbent on the negative cult, any charges and to plaintiffs, affidavits otherwise as would 'lead to the conclusion that the acts provided 56, supra, in Rule forth set beyond of the defendants outer specific showing facts that there was a perimeter duty, of their line of de- genuine issue for trial whether properly employed fendants the modern acting the defendants were within the procedure offering testimony sup- line their official duties. port their motions to dismiss treated Cunningham See v. Securities Investment summary judgment. as motions 600, Company, Cir.1960, 602, 5 278 F.2d (c) (e), Rules 12 and 56 The Fed.R.Civ.P. 603. The introduced no evi defendants offered Hon- the affidavit of whatever, dence and thus com failed Attorney Kennedy, orable Robert F. pletely resting upon to meet the burden States, that, General of the United at his them. direction, each was in defendants performance of his official de- record, duties In that state of affidavit, including scribed in the the ex- we must assume extent the ecution and enforcement of the orders allegedly overzealously acted Note, generally, 624, curiam, 9. See Supp. 636, Cir., Of per Doctrine of aff’d 8 Immunity Rights denied, Civil 909, ficial Acts, Under 309 F.2d cert. (1955); Com 68 Harv.L.Rev. 1229 83 S.Ct. 9 L.Ed.2d 719. ment, Liability Civil of Subordinate State agree if Most writers the Federal Rights Officials Under Civil Acts Tort Claims Act were amended to allow Immunity, the Doctrine of Official 44 such suits as the instant one to (1956). problem Calif.L.Rev. 887 brought the United both Picking Pennsyl was first raised in See, policy interests would be served. R., vania R. Cir. 3 151 F.2d Davis, g., e. Administrative Officers’ Tort discussed, questionably It was Liability, (1956); resolved, 55 Mich.L.Rev. 201 3 Halden, in Hoffman v. 9 Davis, Treatise, also, § Law Administrative See 298-300. Houston, D.Neb.1962, (1958 Supp.). Rhodes v. F. 2607 &ed. reading.” appears they maliciously, than from its act- were nevertheless clearer or Papagianakis Accord, ing perimeter F.2d at 581. the outer within .their alleged Samos, Cir.1950, duty, had v. The acts and the line of general denied, cert. connection more or less (1951); control 95 L.Ed. 1354 Swanson law their matters committed Willis, Laughlin Rosenman, Moreover, supra; supervision. we 1947, U.S.App.D.C. 164, proper opinion of a selection Wheeler, 1963, enforcing cf. Wheeldin v. court’s orders method of opposition 650 n. obstruc- U.S. face active necessary section, L.Ed.2d 605. The new venue tion is a decision certainly with- 1391(e), make be free these officers 28 U.S.C. does not § or fic- out or threat of vexatious fear coverage expand scope of of 42 U.S.C. alleged personal liabil- titious suits and 1938.12 § ity. Rights Act, 42 The Civil III. Rights Act, 42 The Civil II. 1985(3). § U.S.C. § 1983. U.S.C. allege conspiracy Plaintiffs plaintiffs assert protection deprive equal them un a cause action equal privileges and immunities laws der 42 U.S.C. which is federal § prevent hinder and to or under the laws imposing lia civil civil bility statute giving equal them any state authorities who, “person color under trying any ordinance, regulation, protection. statute, plaintiffs are Thus custom, usage, or Terri pro or State 1985(3), which 42 U.S.C. invoke § tory” subjects “deprivation anyone to the damages, right of action for vides any rights, privileges, or immunities persons or two more “[i]f and laws.” secured the Constitution * * Territory conspire or State .* added.) person (Emphasis Thus the purpose depriving, for the either acting of state law under color directly indirectly, any person or apply, de whereas the the section persons equal protec class fendants instant suits were laws, equal privi tion of the Judge law. under color of As leges immunities case, Gregoire Hand stated in the “Sec laws; prevent purpose of for the precursor so 1983] tion [the ing hindering au the constituted plainly under color limited to acts done Territory any or State thorities giving securing per or of some or territorial law or state from or to all Territory it sons such or no discussion can make within State dinance that 242, section, gave definition the same § 1 1. criminal 18 U.S.C. the Court The While acting however, applies persons “under was used to color of” as “under to coverage added.) (Emphasis Screws, law.” did not extend color of it acting lim fed- under color of of section 1983’s additional those Because to acting persons under color of itation to eral law. law, un or cases decided state territorial purpose of the new section was section, Screws der criminal such as bring against possible actions make it 91, States, 1944, v. 325 U.S. United agencies government in dis- officials and Logan v. S.Ct. District trict courts outside States, 1892, 263, 12 S. 144 U.S. new It was intended Columbia. 429, are not relevant Ct. 36 L.Ed. new new liabilities or “not create section though they in as to section 1983 even against U.S. Govern- causes of action acting persons color of fed volve give to the Federal ment” and “not access law. text. The eral See cases cited which cannot now courts to action Pape, case of Monroe v. brought against a Federal official 5 L.Ed .2d involved sec S.Ct. District District Court against S.Rep. tion the suit state but 87th of Columbia.” No. Cong., (1962). law. 2d Sess. under color if if equal if ^[**] protection the laws preted Nothing giving herein said sanction or comfort should be inter- precipitated problem to those who alleged However, the facts amount University which existed at Mis- detention, assault malicious arrest sissippi Oxford, Mississippi, Sep- battery, sundry deprivations say tember What I have to re- process. due To within this come stat particularly lates more I to what con- allege ute, plaintiffs have to facts would procedural sider to be errors and a mis- amounting purposeful intentional interpretation of substantive law. I am plaintiffs discrimination individ deeply conscious of the fact de- ually class. as members of Snowden high-ranking fendants are federal offi- Hughes, v. S.Ct. ; present cials but on the state of the rec- plaintiffs 88 L.Ed. 497. This the have determining guilt ord we are not or in- Whittington Johnston, not done. See nocence, falsity the truth Cir.1953, denied, 201 F.2d cert. charges my complaint. laid in the 98 L.Ed. questions view involved relate to Gazzola, Cir.1954, Dunn plaintiffs whether the stated cause 709, 711; Armstrong, Miles right of action which entitles them the 284; Morgan Null, present proof. Until all of the issues S.D.N.Y.1954, F.Supp. 803.13 complete resolved full and hear- For reasons the dis- stated herein giving ing, right trict court’s suits dismissal the three prove case, respectfully I must dis- is sent. Affirmed. applied “The federal courts have doctrine of official to suits many numerous officials dif- Judge GEWIN, (dissenting): Circuit By great weight ferent torts. allega- This case not does involve the authority, law enforcement officers are negligence part tion of on the of federal alleg- immune from civil suits based on performance officials officers in the edly (Citing cases.) malicious acts.” undertaking carry of their duties in foregoing paragraph is full out orders court. com- Rather majority plaint charges opinion, except it the defendants with an only unlawful, stated therein that there one and malicious fed- denial of willful exception rights, eral case which fundamental constitutes an constitutional with- probable quoted cause; to the rule. out statement facts which forcefully out of taken context. It constitute the conduct are set majority complaint. Accordingly, demonstrates forth in failure of the important keep to follow recent decisions of this Court in mind that we considering litigant, negligent to the effect that a civil crim- are not mere con- duct, inal, right complaints strong in which has an absolute freedom alleged, cases speech have been and if al- provocative how matter —no —and legations supported facts, are the assembly, under the first amendment to rights plaintiffs constitutional interference,1 the Constitution without ruthlessly proba- rights violated infringed, without and no when such are unlawful, ble in good cause an slight willful and ma- much in matter how how licious faith, by officer, manner. police a such officer is Although 13. F.Supp. 651, 656-658, aff’d, we realize that there is some authority (9 1963)), not find neces the effect that 42 we do U.S.C. sary pass question. 1985(c) only on applies that where some of the persons conspiring so Congress Equality Douglas, acted color 1. of Racial (see D.C., Zuieback, Cir.) (1963 of state law Koch F.2d 95. 5th taken, damages so confined and treated for for such inter- were in answerable twenty-one hours; period a and that discourse As a theoretical ference.2 foregoing immunity, complete of the acts were committed the doctrine my by majority opinion brilliant. reasonable is without probable incorrectly majority view, opinion cause.3 has states procedural just misinterprets concluded that the acts described law and constitute violation of law the civil realities case. damages awarded, for which can and majority opinion tied to three the defendants are insulated and legal concepts: (a) of im- the doctrine protected liability dam- civil summary judgments; munity; (b) and ages by impenetrable cloak of im- rights (c) civil the assertion munity. Such is the conclusion of the and, only apply state officials statutes notwithstanding majority numerous cases liability therefore, civil dam- this Court and the ages, le- officers are uninhibited pronouncing powerful serious limits and respect gally in their conduct with officers, upon inhibitions law enforcement country. con- These the citizens this they dealing even when are with known cepts order men- will be discussed example, criminals. For the criminal tioned. charges against must be informed against plaintiffs a suit magis- filed civil immediately him and to a taken alleging defend- that the ;4 the defendants trate he must be advised his con- individually pursuant a ants, to con- rights and permitted stitutional he is before malicious, unlawful, spiracy, speak committed about with crime upon the conduct charged; person and violent forceful he cannot ar- plaintiffs plaintiffs at a when time rested without lawful warrant unless public lawfully proceeding down probable cause; were officer and he highway from the four miles distant immediately; is entitled to counsel Mississippi; city Oxford, only small guar- mention a few of the custody plaintiffs taken into the against were protected anteed to citizens request will, law, their dealing when officers are with them. they why them to advise officers refused holding majority If taken; being were so were anyone land, wears the law who compound prison placed ain crowded badge of federal is licensed building compelled to sit a small citi- commit all manner evil locked around their with hands impunity, citizen zens with and the crossed, eyes knees, head feet trembling, defense- cower fear and straight straight forward, at all back legal remedy. less, No and without drink, times; for- denied food and were sought, according to the redress can be’ move, speak such bidden majority, im- such officers are because position compelled horri- to witness were damages. nauseating other mune and are amenable mistreatment ble and maliciously citizens; and all assaulted Executive officers obedience, large “billy respect with a stick entitled to and battered respect fade will soon It and obedience club.” Nesmith, Cir.) consciousness, Alford, (1963 and that conse- 5th 2. quence he lose did consciousness.” F.2d 110. allegations, (1957) foregoing Mallory In addition to the Chapman alleged: plaintiff 1 L.Ed.2d 1479. by ill defend- “Plaintiff was also made States, Henry 361 U.S. United taking causing him to be ants from (1959). 4 L.Ed.2d S.Ct medicine, that had from him his taken (5th 1963) him 6. Lee v. been furnished as a disabled vet- United II Veterans of World the F.2d 770. eran War losing keep him from Administration to away govern- practice par- if officers of federal the the on Whatever engage may be, theory ment can in conduct the described ticular the occasions complete immunity. way certainly principle The best of this will never give engender gain respect legis- is be maintained. No act of the respect my extraordinary to others. view there could lature confers so situation, possible privilege, never be a with the nor can it derive coun- exception revolution, war which tenance from the doctrines the give regardless anyone, stating would per- of his common law. After badge authority king injury or the vest- sonal from the a sub- him, right engage ject presumed impossible, in ed in the the is to be p.3, says, Blackstone, conduct the have vol. ‘but injuries rights property been accused. As said in one to the opinions Court, scarcely recent Nesmith can this be committed Cir.1963) Alford, (5th 318 F.2d 110 : crown without of its the intervention officers; law, in whom the mat- liberty po- if is at an end “[B]ut right, respect ters of entertains may lice officer without warrant ar- delicacy; but furnishes various rest, person threatening not the vio- detecting methods the errors and lence, likely those who its agents, by misconduct those whom merely person victims because the king in- has been deceived and engaging arrested in conduct injus- temporary to do a duced though which, peaceful legally ” tice.’ constitutionally protected, provocative foregoing language ap- deemed offensive has been practices. proved social settled customs and our recent day comes, times, Hood, (1946)

When that freedom of the Bell v. press, assembly, freedom of freedom L.Ed. Mr. wherein religion speech, majority freedom of will Black for Justice imperiled. For the exercise Court concluded: of each must then conform what “Moreover, protect- federally where regards policeman the conscientious invaded, ed have it has been community’s threshold of intol- beginning been the rule Consequently, erance to be. as adjust will be alert courts count, judgment this is reversed grant their remedies so leaving liability and rendered as to necessary And relief. it is also well open question for a retrial of* legal rights settled that where damages, compensatory puni- invaded, statute federal tive.” provides general right to sue may invasion, for such courts I remedy use to make available Immunity good wrong done.” early country history In the of this doctrine which the ma- Marbury Madi famous case jority pronounces the con- based (U.S.) son, 1 in Cranch ception complaint this volving Secretary high-ranking officer— (as opinion) described in vindic- State States —Chief ill-founded, tive, vexatious, or fictitious. Marshall, speaking high- Justice classifying major- complaint, So officials, ranking said: ity states that is left to the Court “ * ** deciding “Is it account of the character hard choice” of person against aggravated extremely whom com- whether plaint wrongs complaint is made? Is it to contend- departments unredressed, ed that heads remain of the coun- because tervailing public policy are not amenable to the laws consideration of country? Matteo, expressed in Barr duty; performance L.Ed.2d 1434 “a discretion- of function”; ary “discharge duty” hardly that Barr and (1959). of I can concede strong coun- “official functions.” All of a these loose such establishes Matteo equated tervailing v. Matteo the and policy. In Barr evasive with each terms “ * * govern- to arrive a other at the conclusion head who was of defendant being for defama- that the act have more or less con- agency sued was ment employees general government nection with com- by matters other tion by dispute mitted law the or arising as to who was control out of a officer’s agency supervision, manifestly to meet and not or of the failure fault for at authority.” palpably beyond congressional is It his [Em- criticisms. certain phasis fairly The short to the added.] Matteo that answer from obvious foregoing complaint made conclusion is no officer can about which matters “* ** perform- unlawfully, willfully, maliciously and from resulted alleged scope probable without cause—all within the of acts ance official of ** complaint deny majority opin- in the a his con- As the citizen duties — bar, suit is stitutional and this then claim that in ion states the case “ * ** any comparatively acts involved have more such not founded on general alleged complaint. less is connection with the mat- Here there minor by opinion) majority ters committed (as law to officer’s stated “ * * ** * by paradox conspiracy control It is a defendants protec- say unlawful, equal deprive plaintiffs mali- willful and of privileges equal violation of cious the United States Con- of tion the laws any pre- ever, any laws and stitution decree under the immunities authority, from other authorities been “committed law” vent or hinder any supervision giving protection.” equal Nice dis- to the control or of- them regardless grasp ficer, required in rank station tinctions are not his government. very agree opinion I At instant a with the difference. Johnson, Hughes in violation the Constitution is shown the Ninth Circuit 1962). by willful, (9th acts, de- malicious and 305 F.2d 67 It was unlawful support cided Matteo involved removed. Such after immunity willful, question who had and unlawful conduct of officers malicious abridged rights: in violation Constitution never constitutional can any perimeter” the “outer reach au- question a search is whether “The thority; “scope it cannot be within the unsupported without warrant authority,” given no man “a arrest, Fourth of the in violation discretionary function” which constitutes United States of the Amendment license to violate most fundamental Constitution, fall said to can be law all—the Constitution of the United scope duties official within the States. view, it appellees. our. In of these accordingly cannot, and II conduct.” not extend such does Judgments Summary great goes majority opinion into phrases majority opinion has this of such treated discussion detail its considering though authority”; “scope “the outer case as we were complaint.7 perimeter” common law of the defendants’ line demurrer a motion a violation of fundamental rights this ease there was is based supported by complaint that no court constitutional dismiss grant Attorney official has General referred or executive affidavit opinion majority. liability for the questioned sufficiency rights; there violation such immunity; sup- the acts to dismiss the affidavit such motion legal by filing pursuance porting not committed it motion to strike official; among motion, things, that such other order of court plaintiffs’ not be within the action acts could cause of majority apply grant sound discretion the Trial Court the Both does not allega ing summary regardless of judgments, conclude that the but such discre per only tions, plaintiff applies denying tion should not be the motions for proof opportunity judgment; summary to make mitted the burden is brings alleges. heavy party us to he This facts on the the who seeks such a summary judgments. judgment. Corp. a consideration National Screen Service accepted Exchange, (5th and fund Inc., are well v. Poster 1962) There certain summary apply 647; Wright rules to amental that on Federal Courts long recognized by courts, judgments (1963) 385-389;8 Summary the Judgments, undertaking Snell, 56. Without Asbill and Fed.R.Civ.P. 51 Mich.L.Rev. 1143. fully subject, develop suffi it is to the majority concludes that the affi- The purposes sum for our here cient Attorney davit of the General the Summary judgments marize the rule. United States make served “to the Court’s moving ” granted par sparingly; * the * * (meaning choice difficult less clearly ty show that there conclusion). choice of The affidavit of any genuine fact issue as to material Attorney sup- the General was offered judgment in he and that is entitled port the motion for defendant’s sum- of law. record favor matter The his as mary judgment. We must examine the clearly what the truth should show affidavit. The first noticeable defect complained respect matters to the about the affidavit is fact that the it no- purpose and it the of the about is not Attorney where states that the General deny right litigants trial rule per- the affidavit his made based on own single try; if there is one issue knowledge required sonal as the rule. factual cannot decide issues Attorney It does that Gen- only issues whether are factual there present eral was at or near scene four decided; probability of success Oxford, Mississippi, miles east of when party against judgment whom of the complained the acts about were com- un fact that it is is rendered and the only mitted. About the factual state- jus prevail likely that will will not he dates, ments contained in the affidavit are action; par summary judgment tify identity parties of the and the fact seeking summary judgment ty has were the cam- clearly positively demon burden pus University Mississippi of the strating fact is no issue of that there performance official duties any such doubt to the existence of purpose and for the removal of against mov a fact issue is resolved justice to insure obstructions moving party is not ant. entitled orders the courts were executed and summary judgment as a matter of majority enforced. anchors con- its technically discharged if he Attorney even clusion to the statement “ * * * resting him; exercise burden General that the defendants responsibility”; material, “official it is not mitted affidavits similar tbe moving party sliown that the acts committed un- is on the to estab- burden Attorney General; genuine der orders from the there is no issue lish that as to any such not within acts were he material fact and that is entitled judgment of the defend- as a of law. duties matter ants; appears moving party and that it no where is not entitled the bene- attempt- ever obstructed or to be fit of favorable inferences drawn moving papers. ed obstruct order of court from his Instead presented official. The motion to dismiss was con- matters in connection with the favorably sidered and as a motion for treated sum- motion must be construed most mary judgment provisions of opposing party to the the motion. That 12(c), Rule Fed.R.Civ.P. maybe non-moving surmised that unlikely party prevail at the trial Wright 8. Professor the rule fol- states summary judg- not sufficient to lows: authorize “Finally, always that, it is true whether ment him.” non-moving party or not has sub- govern- affidavits, discharging more detailed conclusive official were ” * * * issue, as the here follows: at than one responsibilities ment places in the forth set times relevant “Although course such an aver- of Attorney Again General complaint. the ment the cannot defendant fore- facts, knows the that he state does not close the courts examination of from present, or the saw or was question, the we think that affi- the duties, or what performance of their the commanding petitioner’s of- davit of required in order to do they or did were ficer, and a Memorandum Instruc- of governmental discharge their official to Secretary tions of issued the the no he responsibilities and referred Navy petitioner has with our which instructions, au- law, document, other Court, plainly in this leave filed show thority the defendants authorized which that District was correct they engage of which conduct finding that the circulation stated, Briefly as far so are accused. report congres- to the Massachusetts concerned, the are in this case the issues delegation sional ‘in was the dis- * * inconsistent, * innocuous, non- affidavit is charge [petitioner’s] of- require- fails to meet factual and ficial duties in relation to mat- summary dealing with ments the rule ters committed him for deter- ” judgments. Bank Nat. Mercantile [Emphasis mination.’ added.] (5th Co., Ins. Franklin Life Dallas v. It is obvious that Memorandum of 57; Alger United 1957) Cir. supported Instructions issued affi- 519; 1958) (5th States, Cir. ; davit and it evident that the likewise Surety Casualty and Aetna Maddox v. standing affidavits could not fore- alone 1958) Company, (5th close courts an examination ed.) (2nd Vol. Practice Moore’s Federal question In involved. this case 6, pages A of interest case 2325-30. any impossible law, matter Lyons, (1959) 360 U.S. Howard v. person produce document, law, 3 L.Ed.2d decided authority, justify which other would day In that Barr v. Matteo. same alleged commission the acts being was sued officer naval committed, or clothe the defendants being party was sued a subordinate. immunity. true, alleged If with acts Navy captain in the United States gross violation all law. constitute Ship- Boston Naval Commander my view, Attorney yard. of a neither the Gen- were employees were eral of nor other federal association system government, person employees Naval our at the Boston under civilian regardless position rank, Shipyard. has- The suit was over his any authority defamatory Captain approve the misconduct matter which the alleged by authorization, participation or con- had forwarded the Massachusetts delegation. theory only gressional On which motion l-atification. The summary judgment Captain and his such conduct is the could excused commanding right kings presumes affidavits divine officer stated in sending king copies report personal injury from the congres- question impossible. Even the doctrine members under right, king’s helpers not. divine Cap- delegation part sional excused and as to “enter- them the law under the official duties tain’s delicacy.” respect tains regulations applicable and instructions thing very about he was bound do Ill being question which was he sued. Rights Civil identical before the Court was is, us, question now before concluding By Civil the Federal sufficiency 1983, ap- af- Rights Statutes, of an uncontradicted U.S.C.A. acting ply only persons under who are concluded as to fidavit. The Court law, majority who ju- color concludes acts outside the his that since the defendants were risdiction and without authorization law, color of ex- cannot shelter himself from liability. may liability empted plea from all It that he is Rights impose the Civil Statutes under color Cooper v. of office. liability persons acting O’Connor, App.D.C. additional on un- 100, 135, 138, “color of law” but such der statutes were 118 A.L.R. 43 Am. grant exemptions Jur., never intended to Officers, and Public 277.” [Em- phasis to immunities state officers. added.] These are not The statutes. protection life, liberty The and due majority points my authority, to no and process, affording equal as well any authority search to fails reveal for protection laws, discre- are not away sweeping police of state tionary governmental functions but are violate the civil when guarantees, whereby constitutional plaintiff of a under Constitution duty United States has a to insure the grants States, im- the United which protection rights. clearly of such This is munity commit the to federal officerswho Logan shown in the case of v. United grant- justification same acts. for States, 1892, 263, 617, 12 S.Ct. U.S. ing immunity certainly would run in 429,9 Logan others, 36 L.Ed. where and official, favor state he is for called marshals, United States were indicted laws, on far more to often enforce the under Sections 5508 5509 of the Re- and regulations ordinances, city, coun- (18 241, 242) vised Statutes U.S.C. §§ state, ty, and nation than are United conspiracy deprive persons of their States marshals other federal officials. rights, civil and for murder citizens appropriate In this connection it seems Supreme of the United States. quote from our v. Brauti- case of Lewis following ruling (144 made the U.S. gam, (5th 1955) 283-284, S.Ct. 36 L.Ed. against A.L.R.2d a suit two state 436): deputy sheriffs, sheriff, at- state’s States, having torney “The United the abso- of the Eleventh Judicial Circuit of right prisoners, lute hold such Florida: equal duty protect them, have an complaint “The not be dis- should against held, while assault in- so any upon unless, missed on motion jury quarter. The exist- theory, certainty appears to duty part ence of that of the plaintiff that the would be entitled government necessarily implies a under relief facts right corresponding prisoners of proved support that could be right protected; so and this his claim.” prisoners right is a secured discussing exemption them laws vel non of constitution public liability officers from under United States. rights acts, civil tionary because of the discre- ***** duties, nature Brauti- of their (144 U.S. 12 S.Ct. gam states: 429, 440) 36 L.Ed. right not, however, explore ques- “In bar “We need important depend upon any difficult and tion field does present appeal, constitution, but amendments to the further say quasi-judicial than to arises out the creation estab- offi- cer, attorney, prosecuting such lishment the constitution itself Logan S., U.S. The decision v. U. v. United Screws 91, 1495, and 36 L.Ed. has lost S.Ct. expanded vitality Pape, none of its but has been Monroe Supreme decisions 5 L.Ed.2d 492. Court’s construction, holding para- government, narrow a national Negro custody supreme its accused within mount constitutional government was denied his Any sheriff right sphere action. law, process try, indict, because power due accused and thus crime, was killed not allowed to arrest punish trial. criminal accused, them and hold in safe- trial, keeping addressing until Court, it- protect duty power and the questions what officials to the self interference n its guilty constitu- of violation of unlawful held held, prisoners as well as its ex- law,” so “color held tional under of charged judicial 91, 108, ecutive Screws, in 325 U.S. follows trying keeping them. with 1031, 1039, L.Ed. 1506: S.Ct. ***** arguments which have “Some of support the con- been advanced in (144 S.Ct. of trary suggest conclusions 440) question 20 whether Con- under § are bound “The United States gress against has made it a protect lawless violence offense federal custody a the law state to violate parsons in their service or officer his no war- State. But there is the administration in courts of of question treating in justice. duty the cor- This rant' for of relative problem not right state law protection terms. The are of magistrates law has been violated whether state and offi- to the limited charged expounding an inhabitant of a State but whether with cers right deprived executing laws, apply, a of federal with equal force, one who acts ‘color held under at those least of crime, custody law.’ He who acts under ‘color’ of on accusation of may a deprived law a state self- of all means federal officer may act ‘color’ [Emphasis He added.] defense.” officer. law or state law. The federal the defendants The issue whether play come into statute does not acting “scope of em- were within the merely because the law federal involved; only ployment” is not the issue officer the state law under which the acting question of whether purports It to act is violated. is also a vital one. under “color law” only applicable some when and when Court, Supreme in the case right by deprived a one is federal States, 1944, Screws United it is also that action. The fact 89 L.Ed. law does not a violation . constitutionality wrestling with the federal offense make it the less a Code, which 20 of the Section Criminal punishable its as such. Nor does presently and which 18 U.S.C. § (cid:127) authority punishment en- federal originally from the section was derived croach bn state or relieve which, 5509 and 5510 Revised Statutes §§ responsibility for the state its original Force turn, were part punishing [Empha- state offenses.” counterparts, civil Acts of which sis added.] time, presently at enacted the same of- To that' federal reach the conclusion Civil-Rights (42 Act U.S.C. §§ responsible for ficers are likewise 1985). 20 of Criminal arid Section Doug- law,’.’ Mr. Justice under “color being too broad Code was attacked Logan ease las relied a and nebulous to forth standard set States,‘supra. Court, guilt Supreme for a crime. The Pape, supra, through Douglas, speaking In the Monroe case Mr..Justice 167, 81 S.Ct. 5 L.Ed.2d all instances that the Court held city Negro brought pos- constitutional, suit if find statute policemen, Illinois, sible, Chicago,, various do so and the Court would justices peace, one; sheriffs, states’ at- liaras cases was the corred torney, state offi- and we John adhere it. and several Doe cers, for invasion under 42 U.S.C. § “In the with Screws we dealt home, subsequent with- search of his imposed the statute that criminal warrant, with- arrest and detention out penalties ‘wilfully’ for acts done. arraignment. without out warrant and setting We construed word in its Court dis- The United District States doing mean the with a act ground on missed the suit ‘specific deprive person intent complaint alleged un- action cause of right.’ of a Fed- or under the der U.S.C. § page [65 S.Ct. at We do not 1036]. Constitution because of the individ- eral gloss placed think that should capacity official and com- ual defendants’ (42 1983) § U.S.C.A. § immunity. Court, mon law ‘wilfully’ we have here. The word through Douglas, speaking Mr. Justice appear does not § More- reversed the lower court and held that over, provides remedy, a civil plaintiff the invasion of home of the while in the Screws case we dealt warrant, without a search arrest and challenged a criminal on the warrant, detention without and without ground vagueness. 1979 Section arraignment, deprivation of constituted should be read the back- rights petitioner constitutional ground liability tort that makes police 42 under U.S.C. § responsible a man for the natural officials were under “color law” consequences of his [Em- actions.” swept and thus of im- aside defense phasis added.] munity. Douglas, in reach- Mr. Justice Aside from the civil statutes ing such conclusion on behalf the doctrine of never been Supreme Court, up- United relied States exempt extended officers, previous his decision in v. Screws federal, liability damages civil States, supra, 325 65 U.S. S. charged for the conduct in this case.10 Ct. 89 and held that L.Ed. my view, it would far better for interpretation same under acts plaintiffs alike, and the defendants “color law” 18 241 under U.S.C. §§ to have the applied facts reference 42 with like U.S.C. force charges alleged fully developed in order language 1983. Here is, (365 determine what the truth rather 167, 187, Court U.S. 81 S.Ct. stop than to thresh- 492, 505) L.Ed.2d : denying old, opportunity of them the meaning given “We that the conclude they allege, proving afford- what and not ‘under color law in Classic ing opportunity Classic, [United States v. proof come establish, such as would forward with L.Ed. plain- and in the Screws and Wil- Both 1368] their innocence.11 10. The Life Fire Ins. York Co. of New 10 L.Ed.2d 605. Adams, (1835); v. con 9 Pet. 9 L.Ed. 234 In Wheeldin the Cooper O’Connor, al., (1938) v. et cluded the doctrine of App.D.C. 100, apply A.L.R. 99 F.2d set forth in Matteo did not where “ * * * allegations cert. den. 305 U.S. 59 S. * * * complaint respondent Ct. tinger, v. Bit not Wilson (1958) acting sufficiently U.S.App.D.C. scope of within the his bring play.” 714; Colpoys 262 F.2d Foreman into doctrine (1947) Appeals U.S.App.D.C. 349, Ninth The Court of 908; McVey Gross, (D.C.N.D.Tex. applied of im Circuit had the doctrine 1926) 11 F.2d 379. munity. Wheeler, Wheeldin (9th 1962). be ob It also should interesting 11. An discussion of doc immunity may served that under Wheeldin state trine found Wheeler, governs recent case of Wheeldin of action. the cause Removal should have their and defendants tiffs day in court.

ON PETITION FOR REHEARING

PER CURIAM: being rehearing A or- en banc dered, no formal order entered as to requested banc consideration

the en appellants. 25a, Rule Fifth Circuit. See rehearing appellants’ petition for

Denied. al.,

UNITED America STATES of et Appellants,

Cyril FANECA, Jr., Appellee. T.

No. 20906. Appeals States Court Fifth Circuit.

June “ * * * only permitted “[i]n in concluded because Wheeldin alleged short, terpretation not establish makes the facts do a federal defense arising Amendment.” of the Fourth one Constitu a violation the case case, do the facts States.” Cit In the instant or laws of the United tion ing of fundamental con different violation case at bar is establish cases. The rights. fed stitutional from the case insofar Wheeldin jurisdiction concerned, eral because

Case Details

Case Name: Virgil Norton, Virgil Wesley and James Chapman v. James P. McShane

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 15, 1964

Citation: 332 F.2d 855

Docket Number: 20722

Court Abbreviation: 5th Cir.