Gloria Turner WILKES, Plaintiff-Appellee,
v.
Legrand YOUNG, individually and as agent and in his official
capacity of the County of Florence; The County of
Florence, South Carolina, Defendants-Appellants.
No. 92-2177.
United States Court of Appeals,
Fourth Circuit.
Argued June 8, 1993.
Decided July 12, 1994.
ARGUED: William Reynolds Williams, Willcox, McLeod, Buyck, Baker & Williams, Florence, SC, for appellants. Robert Bryan Harwell, Harwell, Ballenger & DeBerry, Florence, SC, for appellee.
Before PHILLIPS, LUTTIG, and WILLIAMS, Circuit Judges.
Reversed by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge WILLIAMS joined. Judge PHILLIPS wrote a dissenting opinion.
OPINION
LUTTIG, Circuit Judge:
Gloria Wilkes sued the County of Florence, South Carolina and its Director of Buildings and Grounds, LeGrand Young, in federal district court, alleging a cause of action under 42 U.S.C. Sec. 1983 and seven supplemental causes under South Carolina tort law, all arising from her arrest for failing to appear in court as required by a parking summons. A jury returned a verdict for Wilkes on her section 1983 claim and one of her state law claims, awarding damages in the sum of $40,000.00 against Young and Florence County, and further awarding punitive damages of $7,500.00 against Young alone. Young and Florence County now appeal the judgment against them. Finding no violation of Wilkes' federal rights, and also finding that Wilkes failed to establish the elements of the tort of intentional infliction of emotional distress, we reverse the judgment below.
I.
On October 17, 1989, Gloria Wilkes' daughter parked Wilkes' car illegally in the parking lot of the Florence County Public Services Building. The car was ticketed with a summons requiring the owner of the car--Wilkes--to appear in magistrate court at 10:00 a.m. on November 10, 1989. When Wilkes' daughter told her about the ticket, Wilkes simply instructed her daughter to "check into it," J.A. at 34, and apparently never herself read the ticket. Neither Wilkes nor her daughter appeared in magistrate court on the specified date.
LeGrand Young reported to magistrate court on November 10, 1989, to testify regarding the ticket issued to Wilkes. In response to Wilkes' failure to appear in court, the magistrate instructed Young to complete the necessary paperwork. Young approached the magistrate's secretary and told her that Wilkes had not appeared in court and that he had been told to fill out the necessary papers. The secretary told Young that she did not have time to type out an affidavit but, if he signed the form, she would fill it out with the simple information that he had just provided her. The affidavit signed by Young and completed by the secretary reads in relevant part that, on November 10, 1989, Wilkes
fail[ed] to report to Magistrate Court as required by a Summons that she received on [October 17, 1989] for Parking in A Fire Lane, thus violating [South Carolina] Code [Sec.] 17-15-90.1 Incident happened in the [p]arking [l]ot of the Florence County Public Service B[uilding].
J.A. at 116. On the strength of this affidavit, a warrant for Wilkes' arrest was issued. A deputy sheriff subsequently met Wilkes at her place of employment around lunchtime, and explained that he had come because of her failure to appear as required by the ticket. Wilkes admitted knowing that her daughter had received the ticket, and agreed to drive down to the magistrate's office to resolve the matter. The magistrate was not present, however, and Wilkes was detained for three to four hours, at which point bond was posted and Wilkes was released. Wilkes' bond was ultimately returned to her and the failure to appear charge dismissed.
Wilkes subsequently brought this action against Young and the County of Florence in federal district court, contending that both were liable to her under 42 U.S.C. Sec. 1983. Wilkes also alleged seven supplemental state tort claims, of which all but three were dismissed by the court. After a trial, the jury rendered a verdict for Wilkes on her section 1983 cause of action and on her state law cause of action for intentional infliction of emotional distress. The jury awarded Wilkes damages in the sum of $40,000.00 against both Young and Florence County, and additionally imposed punitive damages in the amount of $7,500.00 against Young alone. The district court denied the defendants' motions for Judgment Notwithstanding a Verdict and a new trial, and entered judgment for Wilkes in accordance with the jury's verdict. Young and Florence County appeal the judgment against them.
II.
A.
Appellants first argue that the jury's verdict imposing section 1983 liability cannot stand because Wilkes failed to prove any violation of her constitutional rights. We agree.
Wilkes contends, as she did below, that Young violated her Fourth Amendment rights by submitting a false affidavit to secure a warrant for her arrest.2 Evidently assuming that Young's sworn statement that Wilkes "received" the ticket could only mean that she actually took physical possession of it, Wilkes argues that for Young to have made this statement when in fact he did not know whether Wilkes had personally received the ticket constituted "blatant misconduct" that violated her Fourth Amendment rights. We are not persuaded.
As an initial matter, we doubt that any reasonable juror could find that Young lied by stating that Wilkes "received" the parking ticket, since, as a matter of common sense, the statement that Wilkes "received" a ticket in fact means nothing more or less than that the ticket was placed on the windshield of her car, a fact which no one disputes. See, e.g., United States v. Ventresca,
The affidavit before the magistrate presented him with the facts that Wilkes' car had been parked illegally, that Wilkes had "received" a summons for this parking violation, that the summons directed her to appear in court and that Wilkes failed to appear in court as required. Even if it is assumed that Young, by using the word "received," intended deliberately to mislead the magistrate into believing that Wilkes received the summons in person, rather than on her car, his statement plainly conveys, even without the possible inference that she personally received the summons, the uncontroverted fact that the ticket had been placed on Wilkes' car. See Franks,
Probable cause only requires enough evidence " 'to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States,
B.
We are equally unpersuaded that South Carolina law permitted the jury's verdict for Wilkes on her state law cause of action for intentional infliction of emotional distress.
The Supreme Court of South Carolina has clearly specified that, in order to recover for the tort of intentional infliction of emotional distress (also known as the tort of outrage), a plaintiff must prove that--
(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct;
(2) the conduct was so "extreme and outrageous" as to exceed "all possible bounds of decency" and must be regarded as "atrocious, and utterly intolerable in a civilized community;"
(3) the actions of the defendant caused the plaintiff's emotional distress; and
(4) the emotional distress suffered by the plaintiff was "severe" so that "no reasonable man could be expected to endure it."
Ford v. Hutson,
First, Wilkes presented no evidence that Young intentionally or recklessly inflicted any harm. Allowing that the jury might have found that Young was, by signing the blank affidavit, reckless as to the affidavit's accuracy, there is no evidence whatsoever that he either knew or should have known that signing the affidavit would inflict severe emotional distress. Second, for Young, a maintenance man, to have reported to the magistrate's secretary, as instructed by the magistrate himself, that Wilkes failed to appear as required by the ticket she had received, and then, at the secretary's behest, to have signed a blank affidavit, simply does not rise to the level of conduct required under South Carolina law to establish the tort of outrage. However one characterizes Young's rather innocuous conduct, it is simply beyond the realm of reasonableness to suggest that it "was so 'extreme and outrageous' as to exceed 'all possible bounds of decency' " or that it was " 'atrocious, and utterly intolerable in a civilized community.' " Ford, supra,
Quite plainly, Wilkes failed to set forth facts which jurors could reasonably regard as establishing the elements of the tort of outrage. Under South Carolina law, therefore, Wilkes' outrage claim should properly have been withheld from the jury, Todd v. South Carolina Farm Bureau Mutual Insur. Co.,
For the above-stated reasons, we reverse the district court's judgment imposing section 1983 and state tort liability on both Young and the County of Florence.
REVERSED.
PHILLIPS, Circuit Judge, dissenting:
At the core of the Fourth Amendment is the probable cause requirement that protects us all from "rash and unreasonable interferences with privacy and ... unfounded charges of crime." Brinegar v. United States,
The panel majority in this case has now vacated the judgment entered on that jury verdict. Obviously viewing the whole of this citizen's unhappy encounter with the law as a relatively routine and consensual one with no significant harm done in any event,1 the majority concludes that the arrest was not in fact unconstitutional--that it was based on probable cause and, though "false," was so only because of a "rather innocuous" mistake in judgment. Ante, at 1366. It therefore does not address the further questions of specific culpability of Young and the County for causing the false arrest.
I believe the majority could only reach this conclusion either by impermissibly re-examining the facts found by the jury or by misapprehending the law of probable cause as applied in this context, or both, and that in fact it has done both. I therefore dissent from the judgment which on this basis vacates Mrs. Wilkes' award of money damages and leaves her without remedy. I would instead affirm the judgment, which requires that I also discuss the basis upon which the liability of Young and the County were properly established by the jury verdict.2
I.
I begin by briefly recapitulating the facts, either as undisputed or as necessarily found by the jury on evidence that was clearly sufficient, under the standard by which we properly may review its sufficiency. Doing so reveals a classic example of just the sort of recklessness and deliberate indifference by lower-level governmental officials and governmental bodies that, probably much more frequently than deliberate intent and malice and the like, has been the instrument of governmental violations of Fourth Amendment rights--most frequently those of citizens least able by position and place in society to avoid or protect themselves against it.
On November 13, 1989, in Florence, South Carolina, Gloria Wilkes, a grandmother, registered nurse, and law-abiding citizen who had never before been arrested, was arrested without warning at the nursing home where she had worked for more than 12 years, and taken to the local jail, where she was fingerprinted and photographed and then confined in the jail's "holding tank" for four hours, during which she suffered humiliation from the taunts of fellow inmates and significant physical harm resulting from the exacerbation of preexisting diabetic and coronary conditions, before her employer managed to obtain her release by posting bond.
The arrest was made under a warrant specifically charging Mrs. Wilkes with the state criminal offense, under S.C.Code Ann. Sec. 17-15-90 (Law. Co-op.1985 & Supp.1993), of willful failure to appear in Magistrate's Court following arrest and release on personal recognizance, obviously conduct not chargeable to her since she had not been earlier arrested and released on recognizance. The sole basis for the issuance of that legally erroneous warrant was an affidavit signed by an employee of the Florence County Building and Grounds Department, LeGrand Young, which stated that Mrs. Wilkes had "fail[ed] to report to Magistrate Court as required by a Summons that she received ... for Parking in A Fire Lane"--an affidavit that Young had signed in blank, permitted a secretary to complete as she saw fit, and authorized her to submit to the magistrate as his sworn testimony, without bothering to read what she had written. Not surprisingly, the affidavit, as completed by the secretary, contained several statements that were materially false or misleading, most critically the statement that Mrs. Wilkes had in fact been properly served with an official summons to appear in court.3 Several months later, another state magistrate, apparently the one assigned to try the charges against Mrs. Wilkes, determined in the course of an informal pre-trial investigation of the charges, that the information contained in Young's affidavit had been materially false and misleading and that there was in fact no probable cause to prosecute Mrs. Wilkes for the offense charged in the warrant on which she was arrested (or, for that matter, any other criminal offense). He therefore ordered the charges against Mrs. Wilkes dropped.
Mrs. Wilkes then filed this action under 42 U.S.C. Sec. 1983 against Young and his employer, the County of Florence, alleging that they had caused her to be arrested without probable cause, in violation of her Fourth Amendment rights. The case was tried to a jury of the parties' peers, who found, under proper instructions as to which no challenge is made on this appeal, that Mrs. Wilkes had in fact been arrested without probable cause, and that Young and the County were liable for this wrong under Sec. 1983.
II.
To recover on her Sec. 1983 claim against Young in his individual capacity, and Florence County as his employer, Mrs. Wilkes had to prove, first, that she had been "deprived of [the] right[ ] ... secured by the Constitution" not to be arrested but upon probable cause; second, that one or both of the defendants, acting under color of state law, had "subject[ed], or cause[d] [her] to be subjected," to that deprivation of right. 42 U.S.C. Sec. 1983. The jury necessarily found that she had proved both, against both defendants. The majority now concludes that, as a matter of law, the evidence was insufficient to support the jury's probable cause finding.
I believe the majority is wrong--both in its legal analysis and in its assessment of the evidence--in so concluding. In the first place it has either basically misapprehended or misapplied the standard by which we are reviewing the jury's no-probable-cause determination. We are not reviewing it as we would a trial judge's determination of probable cause in a suppression hearing, in which criminal setting it is an issue for the judge. We are reviewing it as a finding made by a jury in a civil action to recover money damages. In that setting, the Seventh Amendment requires that, if the evidence be legally sufficient, the probable cause issue is one for the jury. See McKenzie v. Lamb,
In this case, the jury found, after hearing Young's testimony and being properly instructed as to the legal meaning of probable cause,5 that Mrs. Wilkes had in fact been arrested without probable cause. Under the proper review standard, the majority's conclusion that the evidence was legally insufficient to permit the jury to make that finding is simply untenable. As the trial judge instructed the jury, and the majority concedes, ante, at 1365, probable cause to arrest exists only when the facts and circumstances known at the time are sufficient to warrant a person of reasonable prudence in the belief that the suspect has committed or is committing a criminal offense. Beck v. Ohio,
In deciding the probable cause issue here, the jury was entitled to consider only the information that was before the magistrate at the time he issued the warrant under which that arrest was made. See id. Sec. 3.2(d), at 575-76.6 The undisputed evidence at trial established that the only information before the magistrate when he issued the warrant for Mrs. Wilkes' arrest was the affidavit of LeGrand Young. The only specific factual averments made in that affidavit were that Mrs. Wilkes had "fail[ed] to report to Magistrate Court as required by a Summons that she received on 10/17/89 for Parking in A Fire Lane ... in the Parking Lot of the Florence County Public Service Bldg." JA116. Though the majority says that this information "plainly," "easily," "obviously," and "indisputably" established probable cause to arrest Mrs. Wilkes, ante, at 1365-66, it does not identify, because it could not, the precise criminal offense or offenses for which it thinks probable cause to arrest existed. It could not do so because the facts provided in Young's affidavit--even if accepted as true, which the jury obviously did not--do not establish reasonable grounds to believe that Mrs. Wilkes committed any criminal offense recognized under South Carolina law at the time of her arrest.
As Mrs. Wilkes argued below, and the jury properly found, the facts given in Young's affidavit could not support a reasonable belief that Mrs. Wilkes had committed the offense specifically charged to her in the arrest warrant: a violation of S.C.CodeSec. 17-15-90. That provision makes it a criminal offense to "wilfully fail[ ] to appear" in court as required following arrest and release on personal recognizance. S.C.Code Ann. Sec. 17-15-90 (Law. Co-op.1985 & Supp.1993). Young's affidavit contained no facts to suggest that Mrs. Wilkes' alleged failure to appear occurred after she had been arrested and released on personal recognizance. It was therefore insufficient, as a matter of law, to establish probable cause to arrest Mrs. Wilkes for a violation of S.C.Code Sec. 17-15-90.
Obviously aware of this difficulty, the majority does not suggest that there was probable cause to arrest for the offense charged in the warrant itself. Instead, it says that the warrant's reference to Sec. 17-15-90 was a "clerical error," and that the intended offense must have been a violation of S.C.Code Sec. 56-5-730. Ante, at 1364 n. 1. This must assume--though the assumption is never stated explicitly--that an arrest made under a warrant that charges an offense for which probable cause does not exist is not unlawful so long as a post hoc search of the relevant criminal statutes can turn up some other offense for which the issuing official might properly have issued a warrant on the facts before him. The majority cites no authority to support this proposition; I believe there is none. We have previously recognized that a warrantless arrest may be upheld as against a probable cause challenge even when there is no probable cause for the offense listed by the arresting officer in the initial booking entry, if the facts before the arresting officer would have given him probable cause to arrest for some other closely-related offense. See Sevigny v. Dicksey,
Even assuming that an arrest made under a warrant charging an offense for which there is no probable cause could be upheld if there were probable cause to believe the arrestee committed some other criminal offense, the jury's finding of no probable cause here could not be set aside on that basis, for the facts given in Young's affidavit are insufficient, as a matter of law, to support a reasonable belief that Mrs. Wilkes had committed any criminal offense that was recognized by South Carolina law at the time of her arrest. There obviously was no probable cause to think that she had committed the offense suggested as a possibility by the majority, a violation of S.C.Code Sec. 56-5-730. That provision makes it a misdemeanor to "do any act forbidden [by] or to fail to perform any act required [by]" Chapter 5 of Title 56. S.C.Code Ann. Sec. 56-5-730 (Law. Co-op.1991). Nothing in Chapter 5 of Title 56, which regulates traffic on the state's highways, requires the owner of a car to report to Magistrate's Court when directed to do so by a summons issued for parking in a fire lane on municipal property. So Sec. 56-5-730 cannot be the offense for which the majority purports to find probable cause as a matter of law.7
Perhaps the majority means to say that the facts given in Young's affidavit were sufficient, as a matter of law, to support a reasonable belief that Mrs. Wilkes had committed the "offense" of criminal contempt of court. See Bloom v. Illinois,
In short, at the time this warrant was issued, it was simply not a criminal offense under South Carolina law to do what Young's affidavit stated that Mrs. Wilkes had done: fail to appear before a magistrate as directed by a summons received for parking in a fire lane.9 Thus, even if the jury had accepted everything in Young's affidavit as true--which, as explained more fully below, there is considerable reason to think it did not--it could not reasonably have come to any conclusion other than the one it did: that Mrs. Wilkes was arrested without probable cause.
Finally, even if it had been a criminal offense in South Carolina to fail to appear before a magistrate as required by a summons received for parking in a fire lane, the jury verdict here could not properly be set aside on that account. For even if on that basis Young's affidavit had been facially sufficient to establish probable cause with respect to such an offense, that would not end the inquiry. Statements in a warrant affidavit that are shown by a preponderance of the evidence to be false or misleading, and to have been made with either knowledge of their falsity or reckless disregard for their truth, must be disregarded in deciding whether the warrant is supported by probable cause. Franks v. Delaware,
The evidence in this record, viewed in the light most favorable to Mrs. Wilkes, was sufficient to permit the jury to find under the Franks rule that it must exclude from the probable cause inquiry the affidavit's allegation that Mrs. Wilkes had "received" a "summons" to appear in Magistrate's Court. There was considerable evidence that this statement, even if not literally false, was sufficiently likely to mislead the issuing magistrate to qualify as a "false or misleading statement" for purposes of Franks. See State v. Olson,
The evidence was also sufficient to permit the jury to find the other prerequisite for exclusion of Young's misstatement under Franks: that Young made it with at least reckless disregard for its truth. Young admitted that he signed the affidavit form in blank, that he gave the magistrate's secretary the authority to draft the statement it attributed to him as she saw fit, and that he permitted her to submit the completed form (including the misleading statement in question) to the magistrate as his sworn testimony, without even bothering to read what she had written. On this record, the jury could reasonably have found that Young acted with reckless disregard for the truth of the statements contained in the affidavit he submitted to the magistrate: swearing to the truth of a statement one has not even read is the very essence of reckless disregard for its truth.
The majority asserts that even if we disregard Young's allegation that Mrs. Wilkes had "received" a "summons," the jury's verdict still cannot stand, because the issuing magistrate had before him "other uncontroverted facts" that "easily established probable cause" to believe that she had failed to appear as required by a summons she received for parking in a fire lane. Ante, at 1365. This is plainly wrong. It is undisputed that the only information before the magistrate at the time he issued the warrant was that contained in Young's affidavit. That affidavit stated, in its entirety, that Mrs. Wilkes had
fail[ed] to report to Magistrate Court as required by a Summons that she received on 10/17/89 for Parking in A Fire Lane, thus violating SC Code of Law # 17015-90. Incident happened in the Parking Lot of the Florence County Public Service Bldg.
JA116. When the affidavit is redacted to remove the misleading assertion that Mrs. Wilkes had "received" a "summons" requiring her to report to Magistrate's Court, as Franks requires, see
The majority's contrary conclusion apparently rests on the notion that Franks does not require false or misleading statements in a warrant affidavit to be altogether excluded from the probable cause inquiry, so long as they are "clarified" to correct their misleading effect. See ante, at 1365 ("Even if it is assumed that Young, by using the word received, intended deliberately to mislead the magistrate into believing that Wilkes received the summons in person, rather than on her car, his statement still plainly conveys, even without the possible inference that she personally received the summons, the uncontroverted fact that the ticket had been placed on Wilkes' car") (emphasis added). This, again, is plainly wrong. It is settled law that once a warrant affidavit is shown to include a statement that is deliberately or recklessly false or misleading, the existence of probable cause must be judged with that statement altogether removed, redacted, excised, or excluded from the affidavit, not clarified or explained to remove any potentially misleading inferences that may arise from it. See Franks,
Finally, even if Franks did permit the sort of "clarification" the majority has in mind, it could not be accomplished here without running afoul of another basic tenet of Fourth Amendment jurisprudence: the rule that "an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate." Whiteley v. Warden,
At bottom, the majority's decision seems to rest on little more than the notion that in an after-the-fact probable cause challenge to an arrest made pursuant to a warrant, all doubts must be resolved in favor of the arrest's validity, because of the strong preference for the use of warrants. See United States v. Ventresca,
In the end, the basic difference between the majority's approach to this probable cause issue and mine probably turns on the importance we attach to the need for rigid adherence to the "technicalities" of the requirement. I believe we should hold firm on them--for good reason. Looked at from the law enforcement side, the good faith rule of Leon in criminal prosecutions and good faith immunity doctrine in civil matters give all the protection that is needed against the suppression of evidence and the chilling of police initiative, practical consequences otherwise flowing from found violations that have been deemed intolerable for policy reasons. With those protections in place, no relaxation of the substantive requirement itself is warranted to give further protection to the criminal justice system and to individual law enforcement officers. And, more critically, looked at from the arrestee's side: "The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would 'leave law-abiding citizens at the mercy of the officers' whim or caprice.' " Wong Sun v. United States,
This case provides a prime example of a law-abiding citizen's being left at the mercy of low-level official caprice, callous inattention, and deliberate indifference by a judicial willingness to relax the fundamental requirements, apparently out of some overriding sense that there simply is not that much at stake here--either for this plaintiff or for the Fourth Amendment.
III.
Because I would hold that the jury's finding that Mrs. Wilkes was arrested without probable cause was firmly supported, I must go on to consider, as the majority does not, whether the evidence was also sufficient to support the jury's further findings that Young and the County were liable for that constitutional violation under Sec. 1983.
A.
I take first the question of Young's personal liability. Mrs. Wilkes' Sec. 1983 claim against Young is somewhat unusual, because of where he stands in the chain of events leading up to the constitutional violation of which she complains. The normal target of a Sec. 1983 action for an arrest without probable cause is the officer who actually made the arrest. See, e.g., Sevigny v. Dicksey,
Section 1983 creates a civil damages remedy against "[e]very person who, under color of [state law] ..., subjects, or causes to be subjected, any citizen ... to the deprivation of ... rights ... secured by the Constitution." 42 U.S.C. Sec. 1983. While the Supreme Court held early on that the "subjects, or causes to be subjected" language does not permit the imposition of vicarious liability, Monell v. New York City Dept. of Social Servs.,
Applying these general principles, a number of courts have recognized that Sec. 1983 liability may be imposed in the situation at hand in this case upon an official who submits a false or misleading affidavit to a magistrate, on the basis of which a warrant is issued that results in an arrest without probable cause. See DeLoach v. Bevers,
As Mrs. Wilkes argued below, and the jury found, the evidence developed at trial was sufficient to hold Young liable under Sec. 1983 on such a theory. As explained earlier, the evidence was sufficient to permit the jury to find that the statement in Young's affidavit that Mrs. Wilkes had "received" a "summons" to appear in Magistrate's Court was materially false or misleading. The evidence was also sufficient to permit the jury to find that Young made this false or misleading statement with at least reckless disregard for its truth, if not actual knowledge of its falsity; indeed, the majority concedes as much in its discussion of the state-law outrage claim. Ante, at 1366 ("the jury might have found that Young was, by signing the blank affidavit, reckless as to the affidavit's accuracy"). Finally, the evidence was sufficient to permit the jury to find that Young's deliberate or reckless misrepresentations were a proximate cause of the wrongful arrest, since it was undisputed that the sole basis for the magistrate's issuance of the arrest warrant was Young's misleading statement that Mrs. Wilkes had failed to appear in court after receiving an official summons to do so. I would therefore affirm the damage award entered against Young on the Sec. 1983 claim.12
B.
Though the question is a good deal closer, I would also find the evidence sufficient to support the jury's verdict against the County under Sec. 1983. Mrs. Wilkes' theory against the County was that the constitutional violation she suffered here--an arrest without probable cause--was the proximate result of a customary practice that Young and his subordinates had fallen into with respect to the prosecution of parking violations, and failures to appear in connection with them, a custom whose continued existence was fairly attributable to the County, because it had been condoned by its policymaking officials. We have previously recognized the validity of such a "condoned custom" theory of municipal liability. See Spell v. McDaniel,
Young's own uncontradicted testimony showed that he and his subordinates in the County's Buildings and Grounds Department had a long-standing practice of issuing crude homemade "summonses" to appear in Magistrate's Court to the owners of cars found parked illegally on County property, JA58-59, and of serving these so-called "summonses" solely by leaving them on the windshields of the cars, JA60, 87-88. Barry Elliott, who as County Administrator was Young's immediate superior and had final authority to set County policy with respect to the enforcement of municipal parking rules and regulations, admitted that he had actual knowledge that Young and his subordinates were issuing these so-called "summonses" and serving them simply by leaving them on the windshields of cars registered in the owner's name. JA73. Young testified that when the owner of a car on which one of these so-called "summonses" had been left failed to report to Magistrate's Court as directed, it was his practice to go to the Magistrate's office and sign an affidavit stating that they had failed to appear in Magistrate's Court as required by an official summons. JA65-67.13 Young testified that the County Administrator, Barry Elliott had given him authority to sign these affidavits, JA60, and that Elliott was aware that he was doing so, JA 88, but did nothing to put a stop to this until after Mrs. Wilkes filed this lawsuit. JA67. Though Elliott's testimony was somewhat ambiguous, the jury could reasonably have interpreted it as confirming this. JA72-73. Finally, the County's Chief Magistrate testified that the magistrates in Florence County had been issuing warrants for the arrest of individuals who failed to appear in response to these irregular-looking "summonses," based on the affidavits submitted by Young and his cohorts. JA79-82.
On this record, the jury could reasonably have found that Young and his subordinates had a customary practice of signing false or misleading affidavits for the arrest of individuals who failed to appear in Magistrate's Court as directed by homemade "summonses" placed on cars registered in their names; that the continued existence of this custom was fairly attributable to the County, because its policymaking officials had knowledge of its existence but failed, as a matter of specific intent or deliberate indifference, to put a stop to it; and that this custom was a proximate cause of the specific constitutional violation that occurred here, an arrest without probable cause, because it made such a violation almost bound to happen, sooner or later. Because these findings are in turn sufficient to support municipal liability under a "condoned custom" theory, see Spell,
To conclude, I disagree with the majority's basic conclusion that the evidence was legally insufficient to support the jury's finding of a Fourth Amendment violation here. Because I also think the evidence was sufficient to support the jury's findings that Young and the County are liable for that Fourth Amendment violation under Sec. 1983, and that the verdicts rendered on the Sec. 1983 claim are in and of themselves sufficient to support all of the damages awarded against Young and the County, I would affirm the judgments entered against them in their entirety, without reaching the question whether the evidence was sufficient to permit the jury to find for Mrs. Wilkes on her state-law outrage claim.
Notes
The citation to S.C.Code Sec. 17-15-90, which addresses failure to appear following arrest and release on personal recognizance, is obviously a clerical error. The intended citations presumably were to S.C.Code Secs. 56-5-710(1) (giving local authorities the power to regulate parking of vehicles) and 56-5-730 (making it a misdemeanor not to perform any act required in chapter 5 of title 56). Because it appears that section 56-5-710(1) authorized the issuance of the summons ordering Wilkes to appear in magistrate court, it would clearly have been a misdemeanor under section 56-5-730 for Wilkes to have failed to appear, contrary to the suggestion in the dissent, post at 1371-72. Cf. 1989 S.C. Op. Atty. Gen No. 89-88, p. 237 (misdemeanor violation of Sec. 56-5-730 to refuse to obey order issued pursuant to authority in chapter 5)
Wilkes also set forth a substantive due process claim in her complaint, although she has wisely elected not to press this claim on appeal. As the Supreme Court has recently ruled, an individual alleging that he was prosecuted in the absence of probable cause states no substantive due process claim. Albright v. Oliver, --- U.S. ----,
In fact, the only information even potentially relevant to the failure to appear offense not known to Young when he signed the affidavit was whether Wilkes ever had actual notice of her duty to appear. (Of course, we now know that Wilkes actually did know about the ticket and could only have been unaware of her obligation to appear in court by negligently failing to read it.) However, whether or not proof that Wilkes knew of the ticket would be necessary to convict her of the failure to appear offense, it is beyond question that such proof is not necessary to establish probable cause to arrest her for not appearing in court in response to the express requirement of the summons. See, e.g., Bennett v. City of Grand Prairie, Texas,
We note as well that the South Carolina Tort Claims Act would appear to preclude recovery for any loss resulting from intentional infliction of emotional harm. S.C.Code Sec. 15-78-30(b), (f) (Supp.1990)
Epitomizing this basically dismissive view of the whole matter, the majority says that Mrs. Wilkes "agreed to drive down to the magistrate's office to resolve the matter", ante, at 1364, and then characterizes her stay in jail as a "rather routine three-to-four hour detention at the ... Sheriff's Office", id. at 1366. A fair reading of the record belies any such characterizations of these events. Once presented with a warrant for her arrest, Mrs. Wilkes of course complied with the deputy sheriff's demand that she go with him to the magistrate's office, as any law-abiding citizen would have done. But she certainly did not do so with the understanding that she would be booked and thrown into jail once she got there; to the contrary, she testified that the deputy sheriff had assured her that she could take care of everything simply by going down to the magistrate's office with him and paying the fine for the parking ticket. See JA36, 44. Nor would most of us, at least those who have some acquaintance with the realities of incarceration in local jail facilities, be likely to characterize her stay there as a "rather routine" one for a law-abiding citizen such as Mrs. Wilkes
Mrs. Wilkes' action also included a pendent state law claim for the tort of outrage, which the jury also decided in her favor. Because the damages awarded on that claim were not cumulative of those awarded on the Sec. 1983 claims, hence do not affect the size of the judgment on those claims, I do not address the defendants' challenges to that portion of the judgment
The undisputed evidence at trial established that the only notice that Mrs. Wilkes was ever given of her alleged obligation to appear in Magistrate's Court was contained in a crude homemade parking ticket left on the windshield of her car when her daughter parked it in front of the Florence County Social Services Building while she was attempting to obtain disaster relief following Hurricane Hugo. Though this document was captioned "summons" and directed the owner of the car to appear in Magistrate's Court at a certain time, it did not look like an official summons: it was handwritten on a piece of plain white paper, rather than being typed on a standard printed summons form, and it was signed by an employee of the County Building and Grounds Department, rather than by a judge or a police officer. Mrs. Wilkes admitted that she knew that her daughter told her she had found this piece of paper on her car. But she also testified that she herself had never seen it, and that her daughter told her that she had been assured--by both a deputy sheriff and someone in the magistrate's office--that it could not be a legitimate summons, because of its irregular form and manner of service, and that they should therefore disregard it
Accord Reeves v. City of Jackson,
After instructing the jury that to succeed on her Fourth Amendment claim, Mrs. Wilkes would have to show that her arrest was "not based upon probable cause," the trial judge explained that:
Probable cause exists where the facts and circumstances within a person's knowledge, including any reasonably trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed.
Record, vol. 3, at 107. This definition of probable cause is virtually identical to the one that the majority purports to be applying in making its own apparently de novo inquiry into the issue of probable cause. See ante, at 1365 & n. 3 (probable cause "requires enough evidence to warrant a man of reasonable caution in the belief that an offense has been or is being committed") (internal quotations omitted).
There is no claim here that the arrest itself was valid, even if the warrant was not, because the arresting officers themselves had sufficient information, independent of the warrant, to give them probable cause to make a warrantless arrest
The majority suggests that because Sec. 56-5-710(1) "appears" to have "authorized the issuance of the summons ordering Wilkes to appear in magistrate court," her failure to do so "would clearly have been a misdemeanor under section 56-5-730." Ante, at 1364 n. 1. This argument cannot be squared with the language of the statutes involved
As the majority concedes, Sec. 56-5-730 makes it a misdemeanor only to "do any act forbidden [in] or to fail to perform any act required in this chapter [Chapter 5 of Title 56]." S.C.Code Ann. Sec. 56-5-730 (Law. Co-op.1977) (emphasis added). Though Sec. 56-5-710(1) appears in Chapter 5 of Title 56, it does not of its own force "forbid" or "require" anyone to perform any act in the sense referred to in Sec. 56-5-730; instead, it simply allocates regulatory power between the local authorities and the state, reserving to the former the power to regulate the parking of vehicles on streets and highways under their jurisdiction, to the extent they can do so without undermining the provisions of Chapter 5 that regulate traffic on the state's highways. See S.C.Code Ann.Sec. 56-5-710 ("Subject to the limitations proscribed in Sec. 56-5-930, the provisions of this chapter shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from ... (1) Regulating the standing or parking of vehicles"). There is no authority for the majority's suggestion that Sec. 56-5-730 was intended to criminalize the failure to obey any order issued by local authorities under the general power to regulate parking reserved to them by this savings provision. The South Carolina Attorney General opinion relied on by the majority does not support this proposition, for it involved the failure to perform an act that was specifically required by the terms of a provision of Chapter 5 itself: Sec. 56-5-740, which provides that "[n]o person shall willfully fail or refuse to comply with any lawful order or direction of any police officer, fireman or uniformed adult school crossing guard invested by law with authority to direct, control or regulate traffic." And if Sec. 56-5-730 made it a misdemeanor to fail to comply with a parking summons issued by local authorities under the power reserved to them by the Sec. 56-5-710 savings provision, as the majority suggests, the legislature would have had no reason to amend Chapter 5 in 1992 to add Sec. 56-7-80(F), which makes it a misdemeanor to fail to appear in court as directed by a summons issued by municipal law enforcement authorities to enforce a municipal ordinance, for the failure to obey such a summons would already be a misdemeanor under Sec. 56-5-730. See infra n. 9.
When a defendant fails to comply with a summons to appear before a magistrate, the normal procedure in South Carolina, as elsewhere, is for the magistrate to direct the clerk to issue a bench warrant under which the defendant is physically brought before him to answer the noticed charge, not to have him arrested for the separate "crime" of contempt. 1976-77 S.C. Op. Att'y. Gen. No. 77-406 (Dec. 27, 1977); see S.C.Code Ann. Sec. 22-3-930 (Law. Co-op.1989) (when person fails to comply with a summons to appear issued by a magistrate, magistrate "may issue a rule commanding such witness to be brought before him"); id. Sec. 14-17-260 (Law. Co-op.1977) (authorizing clerk to issue bench warrant when directed to do so by court). This is presumably what the magistrate before whom Mrs. Wilkes had been scheduled to appear had in mind when he told Young to go down to his office and "do what is necessary," JA65, after she failed to show up in court: the issuance of a bench warrant commanding her to be brought before him to answer for the alleged parking violation. But the warrant under which Mrs. Wilkes was arrested was not a bench warrant issued to compel her appearance on the underlying parking offense; it was a warrant for her arrest on a separate criminal charge of failure to appear. Had Young bothered to read the form he signed after it was completed by the magistrate's secretary, rather than signing it in blank and leaving her to fill it out as she saw fit, he might have discovered this problem
After Mrs. Wilkes filed this lawsuit, the South Carolina Code was amended to make it a misdemeanor to fail to appear in court as directed by an "ordinance summons"--a uniform summons form adopted by a municipality, in accordance with certain statutory requirements, for use in the enforcement of its ordinances--with which one has been properly served. 1992 S.C. Acts No. 328, Sec. 1 (codified at S.C.Code Ann. Sec. 56-7-80(F)) (Law. Co-op.1993 Supp.) (effective April 10, 1992). The affidavit in question here was issued in November of 1989, more than two years before this provision went into effect
The Supreme Court's decision in United States v. Leon,
Several courts have gone even further and held that an officer who induces a magistrate to issue a warrant not supported by probable cause by submitting a completely truthful affidavit may be held liable under Sec. 1983 for a resulting Fourth Amendment violation, if he should have known, at the time he applied for the warrant, that the affidavit did not establish probable cause. See Briggs v. Malley,
Young cannot escape liability here on the basis of qualified immunity. Qualified immunity is an affirmative defense, Harlow v. Fitzgerald,
Though Young testified that he did not know these affidavits might result in the issuance of arrest warrants, JA66, the jury was entitled to discount this self-serving testimony as manifestly incredible, in light of the evidence that on the standard form used by all magistrates in South Carolina, including those in Florence County, to issue arrest warrants, the space for the affiant's statement appears on the same page as the warrant itself, and the caption "ARREST WARRANT" appears in bold print immediately beneath the line for the affiant's signature. See JA116