JOHN R. BROWN, Circuit Judge.
This appeal from adverse judgments on jury verdicts denying claims for damages for arrest, imprisonment and criminal prosecution of white persons triggered by their eating with Negroes in a public restaurant in Montgomery, Alabama, presents a number of questions both of Alabama and federal law. Basic to each claim is the question whether the trial Court should have granted instructed verdicts as to liability on each of the three theories of recovery. To the extent that one or more or all of the counts presented jury issues, there is a question as to the correctness of jury charges given or refused. Next there is a question of admissibility of evidence of prior racial strife which the Court allowed as bearing on good faith. Finally, there is the question whether the instructed verdict for one of the defendant police officers was proper. As to this latter item, we affirm. As to the other matters, we hold there was error for the reasons later discussed. We accordingly reverse and remand.
The Plaintiffs who have perfected their appeal to this Court as Appellants are Dr. and Mrs. Richard Nesmith. Filling out the cast of characters as DefendantsAppellees are Commissioner of Public Affairs Sullivan, Chief of Police Ruppenthal, Desk Captain Eiland, and Police Sergeant Alford. The Complaint is in three counts. Of these Count I for malicious prosecution and Count II for false imprisonment are Alabama-Erie claims resting on diversity jurisdiction. 28 U.S. C.A. § 1332. Count III seeks $50,000 damages caused by the conspiracy of the Defendants acting under color of state law to deprive Plaintiffs of their constitutional rights contrary to the Federal Civil Rights Acts. 42 U.S.C.A. § 1983; 28 U.S.C.A. § 1343. The District Court, after instructing a verdict in favor of Captain Eiland, submitted the case to the jury as to all other Defendants and all counts under a general charge. A general verdict for each of the Defendants as to each of the Plaintiffs was returned. Judgments of dismissal were entered on the verdicts. For a ease so fraught with emotional overtones from local racial patterns and practices, the case was remark[116]*116ably free from any real dispute as to underlying facts.
I.
Dr. Nesmith was the Dean of Men and head of the Sociology Department at MacMurray College in Jacksonville, Illinois. As part of the scholastic program, his students often went on field trips. On this particular trip in the spring of 1960, Dr. Nesmith, his wife (who went along as a chaperone), their two-year-old daughter, and ten students went south to study, among other things, the use of the non-violent technique as a method of sociological change in relation to the so-called “Montgomery Bus Boycott.” See Browder v. Gayle, M.D. Ala., 1956, 142 F.Supp. 707, affirmed, 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114.
The group arrived in Montgomery, Alabama about 10:00 p. m. on the night of March 30, 1960. The following morning they interviewed the Montgomery Improvement Association, a Negro organization. As lunchtime approached, the discussion was not concluded, so the entire group, both Negro and white, adjourned to the Regal Cafe, a Negro cafe in a Negro neighborhood. The group arrived at the cafe shortly before 12:00 noon and proceeded to a private dining room from which they could neither see out nor could people on the outside see in. At the time of arrival, the street outside the cafe was relatively quiet. A few people were walking around, sunning, reading on their porches, etc.
At approximately 11:45 a. m., Desk Captain Eiland of the Montgomery Police Department received a telephone call from an unidentified person who stated that some young white girls were going into the Regal Cafe with Negroes. Eiland relayed this information to Inspector Cox and told him to investigate. Cox arrived about 12:15 p. m. and looked the situation over. He found an orderly group of whites and Negroes sitting around a table having lunch and engaging in discussion. Cox asked the executive secretary of the Montgomery Improvement Association if all of these people were from Montgomery, to which he got a negative answer. Cox then went outside and called his superior, Sergeant Alford, “and told him what the situation was.” 1 A few minutes later, Alford came on the scene. Alford looked inside the cafe and immediately reported the situation to Chief of Police Ruppenthal. A crowd had started gathering outside the cafe and had congested the area to such an extent that by the time Ruppenthal arrived, he was forced to park some 300 yards away from the cafe.
Eventually there were numerous policemen, including some state highway patrolmen, in and around the cafe. Ruppenthal recognized Rev. DuBose, a negro with the group, as being the leader in a recent march on the Capitol. (See Part II). Someone began taking pictures of the mixed group inside the dining room. At no time was loud or boisterous language used inside the cafe, nor were there indications of violence of any type. Ruppenthal waited inside the cafe for forty-five minutes to see if “they were going to leave or anything.” At no time were the members of the group informed that they were violating the law or that they must leave the cafe. According to Ruppenthal, “they made no attempt to leave.”
In the meantime, Commissioner Sullivan had arrived. Someone told Sullivan that these people wouldn’t leave; he assumed someone had asked them to leave, and they had refused. Sullivan telephoned the city attorney and described the situation. The attorney advised Sullivan that these people should be removed from the premises to prevent further trouble.
Sullivan told Ruppenthal to “move them out.” Ruppenthal told Alford to get some transportation, meaning, of course, vehicles to carry these people to jail. Alford complied. Ruppenthal walked up to the group and said, “All right, [117]*117let’s go.” “You, you and you.” There was no warrant presented, nor was there any explanation given as to why the arrests were being made. The entire group was taken forcibly to the police station; the men were loaded into the paddy wagon, the women in cars.
By this time, the crowd outside had reached sizeable proportions, estimates ranging from 50 to 150 persons, consisting largely of Negroes. However, the streets were completely congested with •cars containing white persons. After the arrests, the police quickly dispersed the crowd and started cars moving again on the streets.
Upon arrival at the police station, the prisoners were processed and placed in jail. The minor child of Dr. and Mrs. Nesmith was taken from them. About 6:00 o’clock of the same evening, Dr. and Mrs. Nesmith through their lawyer arranged for bail and were let out. The remainder of the group stayed in jail overnight. The parents immediately began the search for their child which ended about 10:00 o’clock that night. Although the child had apparently been well taken care of by the Juvenile Court matron and suffered no harm, Mrs. Ne-smith testified that she suffered much anxiety during this time as to the whereabouts and well being of her child.
The next morning (April 1, 1960) Assistant Chief of Police Stanley (who is otherwise not involved in this case) told Sergeant Alford that he had so to speak been elected to sign some affidavits charging each member of the group with disorderly conduct in violation of a recent city ordinance which had been passed on advice of counsel to more fully comply with the state law concerning the same offense. Alford signed the affidavits in blank. They were subsequently filled in and warrants issued by Desk Captain Eiland. Although it was believed not necessary to have warrants for a prosecution in the local Recorder’s Court (municipal court), it was thought better to provide warrants in the event there should be an appeal. Trial was held that same morning in Recorder’s Court of the City of Montgomery. Alford, Ruppenthal and Sullivan each testified. The entire group was convicted of disorderly conduct and let out on bond.
Appeals were taken to the Circuit Court of Montgomery County. Presumably following the usual procedure when a case is appealed from the Recorder’s Court, the prosecutions there were on complaints filed by the City Attorney. Upon trial de novo, the jury found all of the defendants not guilty with the exception of Dr. Nesmith. He appealed to the Alabama Court of Appeals which reversed the conviction for a defect in the complaint on the authority of DuBose v. City of Montgomery, 1961, 41 Ala.App. 233, 127 So.2d 845. This was on April 12, 1961. At that time the one-year statute of limitations had run. The complaint was accordingly dismissed.
II.
Over the strong objection of Plaintiffs, the trial Court admitted testimony concerning prior racial incidents in Montgomery. It facilitates discussion of this claim of error to summarize this evidence separately. The synopsis is stated most favorably to the jury verdicts, and hence the Defendants.
On February 25, 1960, there was an attempt by some Negro students to integrate the lunch room in the court house in Montgomery, Alabama. On February 27, a Negro woman was struck on the head with a baseball bat by a white boy. The following day, there were protest demonstrations at Alabama State College, a Negro college in Montgomery. On March 1, there was a widely publicized Negro march on the State Capitol led by Rev. DuBose. On March 6, Negroes assembled at a local Church and announced their intention to go to the Capitol where a crowd of whites had gathered awaiting their arrival. Anticipated violence was avoided by action of the police in dispersing the crowds. On March 8 and 10, there were protest demonstrations at Alabama State College. Responding to a telephone call from the campus reporting that things [118]*118were getting out of hand, the police patrolled this demonstration.
In short, the Defendants claimed that this showed that for a period of about a month prior to March 31, 1960, the City of Montgomery was on edge with, and from, racial strife. See Dixon v. Alabama State Board of Education, M.D. Ala., 1960, 186 F.Supp. 945, reversed, 5 Cir., 1961, 294 F.2d 150.
III.
The count as to false imprisonment presents the fewest intrinsic problems. Besides a motion for instructed verdict as to all counts, Plaintiffs requested a specific charge as to false imprisonment which was tantamount to a motion for directed verdict under F.E. Civ.P. 50. Had the motion or the requested charge been given, only the question of damages would have been open for jury determination. We hold that the .initial arrest and imprisonment of Plaintiffs was unlawful as a matter of law.2
As to this count and the separate one for malicious prosecution, we are bound by Alabama law. As to both, it is pertinent to point out the distinction between the two since Alabama consciously recognizes this distinction. Accepted treatises point this out. “The kindred action of malicious prosecution protects interests closely related to those involved in false- imprisonment, and sometimes the two are confused by the courts.3 Malicious prosecution is the groundless institution of criminal proceedings against the plaintiff. False imprisonment fell within the action of trespass, as a direct interference with the plaintiff’s person * * *. The distinction between the two lies in the existence of valid legal authority for the restraint imposed. If the defendant complies with the formal requirements of the law, as. by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized,4 the court and its officers are-not his agents to make the arrest, and their acts are those of the law and the state, and not to be imputed to him. He is therefore liable, if at all, only for a misuse of legal process to effect a valid, arrest for an improper purpose. The action must be for malicious prosecution, upon proof of malice and want of probable cause, as well as termination of the proceeding in favor of the plaintiff.”' Prosser, Torts § 12, p. 53 (2nd ed. 1955).
Nor in other significant respects do we find Alabama law to be at substantial variance with the common law as generally developed in the other states. All that is necessary to establish false imprisonment is that an individual be restrained of his liberty under the probable imminence of force without any legal cause or justification therefor.5 It is not necessary to show actual force, threats, or injury done to the individ[119]*119ual’s person, character, or reputation.6 The lack of malice, the presence of good faith, or the presence of probable cause do not affect the existence of the wrong when the detention is unlawful.7 If the act of the officer arresting a person without a warrant is unlawful, the imprisonment is false.8
It is undisputed that the plaintiffs here were arrested and taken to the police station where they remained for some four or five hours without their consent. Apart from the matter of money damages, there are only two questions. The first is whether the arrest was lawful, i. e., justified by some valid authority or right. Second is the question of the individual liability of each of the defendant offices.
As to the issue of individual liability, each of the three defendants— Sullivan, Ruppenthal and Alford — acted .as one. Although there was no prior plan devised to bring about the arrest and imprisonment of the plaintiffs, each of the three had a substantial role in bringing about the results. This was an instance of the typical “chain of command,” Sullivan indicating to Ruppenthal that the Plaintiffs should be removed from the cafe, Ruppenthal giving the authoritative commands constituting the arrest, and Alford providing the essential transportation at the direction of Ruppenthal. Their actions throughout the whole sequence of events are so intertwined and interlocking that these Defendants must fall together.
Nor can there be any doubt as to the total lack of legal justification for the arrest without a warrant.9 The Plaintiffs were merely eating lunch with a group of Negroes. This was no crime. This was no breach of the peace. The Defendants as public officers were vividly aware that the former city ordinances enforcing segregation of the races in public places, including restaurants, had been repealed.10 As a part of this massive overhaul and repeal of segregation laws, an amended disorderly conduct ordinance was adopted.11 There was no [120]*120disturbance inside the cafe. Nor was there any action inside the cafe which remotely came within the conduct proscribed by the amended ordinance, note 11, supra. The only possible threat of a disturbance was on the outside where crowds had gathered. We may assume, as contended by Defendants, that the crowds had gathered, not merely out of curiosity from the large number of policemen in the area, but out of a spontaneous sense of outrage to the reported presence in the building of Negroes and whites eating together contrary to accepted social custom and usage.
Indulging this and all other assumptions favorably to the jury verdict, there is yet no single Alabama case to indicate that the suspected threat of mob violence at the hands of law breakers may be avoided by arresting those whose actions are perfectly peaceful and legally and constitutionally protected merely because such lawful and peaceful conduct provocatively incites the incipient mob.12 And we are equally clear that Alabama would not do so in the future. We must, and do, assume that under the Supremacy Clause, Article 6 of the Constitution, Alabama courts will construe state statutes and ordinances in keeping with federally paramount constitutional principles. Great latitude is, and must be, extended to states in the determination of what conduct constitutes a crime or in ascertaining guilt or innocence. But before there may validly be the imposition of criminal sanctions in ‘“the form of fine or imprisonment, or both, there must be a crime defined and a crime committed. Thompson v. Louisville, 1960, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; Garner v. Louisiana, 1961, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207; Taylor v. Louisiana, 1962, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395.
And as to an episode much more provocatively charged than our case, the Supreme Court has just recently rejected on constitutional grounds, convictions for similar, so-called breaches of the peace. Edwards v. South Carolina, 1963, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Distinguishing that situation as we readily do so here from other cases,13 the Court declared that “it is clear to us that in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.” 372 U.S. at 235, 83 S.Ct. at 683, 9 L.Ed. 2d 697. Where in South Carolina the thing which “stirred people to anger, invited public dispute, or brought about a condition of unrest,” 372 U.S. at 238, 83 S.Ct. at 685, 9 L.Ed.2d 697, was the words spoken or uttered by the demonstrators, here it was the simple, peaceful act of Negroes and whites eating together. But of this, the Court’s words are none the less applicable. “[T]hey were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection.” 372 U.S. at 237, 83 S.Ct. at 684, 9 L.Ed. 2d 697. Whatever might be the peaceful means of expressing disagreement with views, policies or practices, we are freshly aware that the “Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.” 372 U.S. at 237, 83 S.Ct. at 684, 9 L.Ed.2d 697.
We may credit the concern which these police officers testified they felt. We think the circumstances exist[121]*121ing that day and their stated good faith apprehensions were admissible as bearing upon the question of punitive, though not compensatory, damages.14 But liberty is at an end if a police officer Imay without warrant arrest, not the person threatening violence, but those who are its likely victims merely because the person arrested is engaging in conduct which, though peaceful and legally and constitutionally protected, is deemed offensive and provocative to settled social customs and practices. When that day comes, freedom of the press, freedom of assembly, freedom of speech, freedom of religion will all be imperiled. For the exercise of each must then conform to what the conscientious policeman regards the community’s threshold of intolerance to be. Consequently, as to this count, the judgment is reversed and rendered as to liability leaving open for a retrial the question of damages, compensatory and punitive.15
IV.
The count for /malicious prosecution presents more difficulty. This flows from its nature, not from any peculiar Alabama concept. Alabama subscribes to the traditional elements of the claim which Prosser summarizes:
“1. A criminal proceeding instituted or continued by the defendant against the plaintiff.
“2. Termination of the proceeding in favor of the accused.
“3. Absence of probable cause for the proceeding.
“4. ‘Malice,’ or a primary purpose other than that of bringing an offender to justice.” Prosser, Torts, § 98, p. 646 (2nd ed. 1955).
The distinction previously discussed between it and false imprisonment must be kept in mind. “Malicious prosecution is the less rigorous of the two remedies. It assumes that the defendant has proceeded under proper legal formalities, and therefore takes into account his good motives and probable cause for his conduct, which are immaterial in false imprisonment. * * Ibid.
The first two elements were sufficiently established. A criminal proceeding was instituted in the Recorder’s Court and carried forward in the Circuit Court.16 And the proceedings were terminated favorably to the accused, by the [122]*122jury verdict in the Circuit Court as to Mrs. Nesmith and by the final dismissal as to Dr. Nesmith after reversal and remand by the Court of Appeals. As to elements three and four, w.e certainly agree with the District Court’s denial of motion for instructed verdict made by each of the Defendants. There was ample evidence justifying a submission. The more serious question is whether the Plaintiffs were entitled to an instructed verdict as to liability on this count.
The Alabama rule is very plain that as to element (3) want of probable cause, it is a question of law for the court if there is no dispute as to the facts.17 The Alabama standard of probable cause in actions for malicious prosecution appears to be the traditional one. It is, says the Court, “such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty” 18 of the offense for which he is arrested, charged and tried.19
If the matter stopped there, it would be simple. For all of the reasons discussed at length in Part III with respect to false imprisonment, two things are clear. First, there is no dispute about the facts. Second, no person on. those facts could have entertained an honest and strong suspicion or belief that the Nesmiths and their companions were guilty of any offense whatsoever and none certainly that they were guilty of the alleged offenses of disorderly conduct provoking a breach of the peace. But applying, as we must, Alabama law,, we must reckon with the further authoritative declarations by Alabama Courts that a conviction for the offense charged, even though subsequently reversed, is prima facie evidence of the existence of probable cause.20 Plaintiffs seek to escape the impact of this rule by contending that the Recorder’s Court of the City of Montgomery is not such an independent judicial tribunal as to warrant this evidentiary presumption. This rests on the assertion that under Alabama statutes the entire legislative, executive and' judicial functions of government are lodged in the City Commission thus depriving the appointive Judge of the Recorder’s Court of minimal independence. The trial Judge rejected this view, as do we.21 It was uncontradicted that Montgomery operated under the merit plan, and the Judge of the Recorder’s Court [123]*123was subject to dismissal only for cause. In any event, this would not suffice as to Dr. Nesmith’s ease since, unlike his wife, he was convicted a second time in the Circuit Court by a jury and favorable termination came only from dismissal after reversal and remand from the Court of Appeals.
While we thus reject this contention of Plaintiffs, we conclude that under Alabama law these intervening convictions are not adequate to create any doubt or uncertainty as to facts which are clear and undisputed. In other words, when the facts — clear and uncontradicted as they are here — show without any doubt whatsoever that there was not a single basis for anyone charging either of these Plaintiffs with disorderly conduct provoking a breach of the peace, neither those facts nor the inferences to be drawn from them are changed in any degree by jury verdicts of guilty which ought never to have been returned had the Recorder’s Court dismissed the charges on the completion of the prosecution's case as the law so positively compelled.
As the Alabama rule reflects {note 20, supra) that the prima facie conclusion may be rebutted by evidence “which clearly overcomes the presumption,” it is plain that the Court retains a function. It continues to be bound by the Alabama Rule that the question ,of probable cause is one of law. The jury’s sole function is to ascertain the facts.22 Next, the Court must determine whether the so-called rebuttal evidence “clearly overcomes” the presumption. If there is a place for judicial determination of that matter — and there is — then it is in keeping with the traditional judicial role to ascertain that it so “clearly overcomes” as to leave no question at all. Any other rule here would be to leave to the jury the determination of whether the officers’ actions were “reasonable.” And it is that question which Alabama holds is one of law on undisputed facts.
The consequence is that the trial Court erred in not giving the instruction requested in various forms charging the jury as a matter of law that there was no probable cause for the arrest and prosecution of the Plaintiffs.
But there is still the vital elements of malice. “Malice in this sort of action implies the intentional doing of a wrongful act to the injury of another.” Huffstutler v. Edge, 1950, 254 Ala. 102, 47 So.2d 197, 199. “Malice may be defined to be any ‘indirect motive of wrong.’ Any motive, not a bona fide purpose, or, not associated with a bona fide purpose, of bringing a person to punishment as a violator of criminal law, is a malicious motive on the part of the person who acts under its influence.” Jordan v. Alabama G.S.R.R., 1886, 81 Ala. 220, 8 So. 191, 192. Considering'that this involves the motivation for these criminal prosecutions, the circumstances will be rare and the facts almost positively uncontradicted in which a Court as a matter of law can rule that a prosecution was commenced or continued with malice. Absence of probable cause— which we have just held to be established as a matter of law — does in Alabama afford a basis from which to infer malice.23 But the elements are not synonymous. And the converse of this is not true as the Alabama cases decline to infer lack of probable cause from established ma[124]*124lice.24 It is a question for the jury whether a want of probable cause requires a finding of malice if there is any evidence to show that the prosecutor honestly believed there was such cause. O’Neal v. McKinna, 1897, 116 Ala. 606, 22 So. 905, 909.
We think, however, that consistent with the broad definitions of malice followed by Alabama Courts, it would have been malice as a matter of law if these Plaintiffs were arrested and the prosecution commenced and continued solely because they were eating with Negroes in a public restaurant.25 And even though not the sole cause, if such a motive was the principal, primary, or predominant one for continuing the prosecution, malice would be established as a matter of law. Obviously there was sufficient evidence for the jury to draw that inference,26 but we do not think that on the present record this was established as a matter of law. Consequently, the underlying factual question of whether the prosecution was solely for that reason had to be resolved by the jury. Though requested by the Plaintiffs, the Court erroneously declined to submit that issue. A suitable instruction should be given.
The result is that the counts as to malicious prosecution must be reversed and remanded for a retrial on the issue of malice and damages, actual and punitive,
V.
For reasons next discussed in Part YI, we hold that the trial Court erred in admitting the evidence of prior racial strife (see Part II). As this necessitates a retrial of the claim for Civil Rights, it is appropriate to rule on objections here urged covering matters which may well reoccur.
This count was based on 42 U.S.C.A. § 1983. It was stipulated that the Defendants’ actions were done under color of state law. We have no doubt that as to a number of the actions, the proof showed as a matter of law that the conduct of one or more or all of the three officers at the restaurant violated one or more Civil Rights. To this extent, the plaintiffs’ motions for instructed verdict certainly ought to have been granted.
Certainly since Monroe v. Pape, 1961, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492, violation of some of the Civil Rights of these Plaintiffs was established as a matter of law. These included the freedom from unlawful arrest,27 freedom of speech and freedom of association.28 This includes the freedom of a white man peacefully to associate with Negroes in a public restaurant free from the actual or threatened arrest by [125]*125police officers as a means of enforcing racial segregation.29
It is equally clear that the personal accountability of each of the three officer Defendants was established as a matter of law with respect to some of these violations. Thus, as we pointed out in Part III, the arrest and imprisonment of the Plaintiffs without warrant was both unlawful and participated in by each of the three Defendants, Sullivan, Ruppenthal and Alford. It also constituted a flagrant violation of federal Civil Rights. Each of these Defendants participated in this action and each is liable individually to the Plaintiffs for the full damages occasioned by such conduct. Consequently, the Plaintiffs were to this extent likewise entitled to an instructed verdict.
But two things complicate the problem for the trial judge. The first is that there are some actions which, although not so as a matter of law, might yet be found by the jury to be a violation of Civil Rights. The second is that as to these (and also under some circumstances those acts which constitute violations as a matter of law), there is the question of the persons who are legally accountable. In connecting the> acts with the Defendants, civil liability for money damages of the respective Defendants would depend on traditional tort principles. Each such action will have to be brought home to each Defendant or imputed to him constructively. Unless— as was so with respect to the initial arrest and imprisonment — this is established as a matter of law, liability of the respective individuals as to such conduct would stand or fall on jury findings, express or implied,30 showing persona] action or that imputed by conspiracy, agency, partnership, respondeat superior, [126]*126or the like. Thus, for example, the commencement and prosecution of unfounded criminal prosecution might under certain circumstances constitute, not only malicious prosecution under the state law (see Part IV), but a violation of Civil Rights as well.31 Since the matter is not directly before us, we ought not to explore fully what those facts must be or what legal principles will be finally controlling. We may assume for our present purposes, however, that since we are dealing here with rights protected either by federal statute or the Constitution, there is no purpose to make every state criminal prosecution which ends in an acquittal automatically a violation of Federal Civil Rights Statutes. There must be something more. ^And the added elements may well partake substantially of traditional general tort law to bring in elements akin .to want of probable cause, or malice, or both.33 Jf that is so, then the federal claim may turn at times upon personal motivation and certainly the conduct of the particular officer-defendant as the actor. The trial Court must therefore take pains that all of these issues are appropriately submitted.
One way of meeting this problem — although certainly not the exclusive way — is to apply a “conspiracy” concept. Presumably that is what the Plaintiffs did here. In the Plaintiffs’ complaint and in the pretrial order outlining the issues for the trial then to be held, F.R. Civ.P. 16, the Plaintiffs asserted the theory of a conspiracy among the several police officers and city officials to violate their Civil Rights. Of course, for a claim under § 1983, a conspiracy as such is not an indispensable element as it is under § 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act.32 Conspiracy is asserted in that situation on more or less traditional principles of agency, partnership, joint venture, and the like.
For the reasons previously set out, the conspiracy theory was not needed as to the initial false arrest and imprisonment; and, as to that phase the retrial of the Civil Rights count will in effect be limited to damages, compensatory and punitive. As to other actions violating Civil Rights, the “conspiracy” aspect will be for jury submission unless the facts compel a direction one way or the other.
VI.
We turn now to the admissibility of the evidence of prior racial strife. (Part II).
By the comments made both in Parts IV and V involving either the concept of probable cause or those akin to it, and the element of malice, we necessarily recognize that a considerable latitude must be allowed to the trial Judge in the receipt of evidence bearing upon those factors. Likewise, in fixing punitive damages for false imprisonment (Part III), or malicious prosecution (Part IV), evidence bearing on good faith would be admissible.34 But this has to do with facts and circumstances surrounding the incident giving rise to the arrest, the imprisonment, or the criminal prosecution making up the subject matter of the damage suit. Thus, a wide discretion must necessarily be invested in the trial Judge as to events occurring on that day (and the following [127]*127day when the criminal prosecutions were formally commenced).
But what took place a month before can have no bearing at all in determining whether the act of white people eating with Negroes in a public restaurant in Montgomery constitutes any kind of crime whatsoever. If this were admissible, then there would have been little reason not to include evidence of the physical brutality and violence growing out of the Freedom Riders in Alabama, Mississippi, and. other Southern states, see Bailey v. Patterson (3-Judge Court), S.D.Miss., 1961, 199 F.Supp. 595; reversed 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; the violence which had occurred a few years before in the Montgomery bus strike, Gayle v. Browder, D.C.Ala. (3-Judge), 142 F.Supp. 707, affirmed, 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114; or for that matter any historic episodes out of which these strong emotions arise.
On issues of probable cause or analogous concepts, malice and for aggravation, mitigation or extenuation of punitive damages, great latitude must be allowed. This extends not only to the events and circumstances but to the subjective apprehensions and beliefs held by the actors as well. But it must be confined reasonably to the transactions under judicial review and not loosely expanded to encompass previous, separate, disconnected incidents or occurrences.
The Court erred in the admission of this evidence and this error permeates all counts.
VII.
As to the defendant Eiland, we think the trial Judge acted properly in granting his motion for directed verdict. On the day in which the arrests were made, Eiland was acting in his capacity as Desk Captain. He received a call to the effect that trouble might be brewing, and, as was customary, he assigned an officer to investigate. Up to that point he infringed none of the rights of the Plaintiffs. The next day, Eiland, again acting as Desk Captain, issued the warrants ag-ainst the Plaintiffs here. These were issued on the basis of affidavits signed by Alford, an experienced police officer. While it may be that the affidavits or the manner of their verification was faulty, we think that in contrast to the officers (and their superiors) initiating the prosecution, Captain Eiland was acting in the role of a Magistrate. His function was to determine whether legal grounds existed for an arrest and prosecution.35 At least on this present record we think he had quasi judicial immunity. Lewis v. Brautigam, 5 Cir., 1955, 227 F.2d 124, 128, 55 A.L.R.2d 505; Kenney v. Fox, 6 Cir., 1956, 232 F.2d 288; Tate V. Arnold, 8 Cir., 1955, 223 F.2d 782; Cawley v. Warren, 7 Cir., 1954, 216 F.2d 74.
The judgments in favor of the Defendants (other than Eiland) are therefore reversed and the causes are remanded to the District Court for further and not inconsistent proceedings.
Reversed and remanded.