Brown v. United States

739 F.2d 362
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 20, 1984
DocketNos. 83-1234, 83-1242
StatusPublished
Cited by55 cases

This text of 739 F.2d 362 (Brown v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. United States, 739 F.2d 362 (8th Cir. 1984).

Opinion

FAGG, Circuit Judge.

Dan Briscoe claims that he was the victim of a racially motivated hanging incident, a “mock lynching,” that occurred while he was participating in National Guard training exercises. Briscoe’s mother and conservator, Della Brown, alleges that as a result of this mock lynching, Briscoe entered into a deep mental depression, culminating -in a suicide attempt in which he was severely and permanently injured. Brown brought an action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., to recover for injuries sustained by Briscoe as a result of the hanging incident. Brown 'also brought an action against several individuals for the violation of Briscoe’s civil rights under 42 U.S.C. §§ 1981 and 19.83 and for the violation of Briscoe’s federal constitutional rights under the due process and equal protection clauses. The district court granted the defendants’ motions for summary judgment in both actions, relying upon the doctrine of military immunity in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

Under the Feres doctrine, the United States and its military personnel are not liable for injuries to service members that are incident to their military service. The sole issue in this appeal is whether Briscoe’s injury was incident to his military service. After considering the relevant cases of the Supreme Court and this and other circuits, we conclude that Briscoe’s claim against the participants in the hang[364]*364ing incident is not barred by the Feres doctrine. We also hold that Briscoe’s claims against the United States and his superior officers for failing to prevent the incidént, and against his superior officers for later failing to perform an adequate investigation of the incident, impinge upon the unique military disciplinary structure and are barred by the Feres doctrine.

I. Background

Dan Briscoe, a black private in the Nebraska Army National Guard, was participating in the federally mandated annual training exercises for guardsmen at Fort Gordon, Georgia. Before the hanging incident, Briscoe was the subject of racial insults, threats, and ridicule by his fellow guardsmen. On one occasion, a miniature hangman’s noose, bearing' the inscription “KKK,” was placed on Briscoe’s bunk. On May 31, 1976, while Briscoe was on nonduty status for the Memorial Day holiday, he attended an afternoon party that members of the Nebraska and Mississippi Army National Guard were having. The party took place outdoors, at a location on the military base between the barracks of the Nebraska and Mississippi guardsmen. Briscoe contends that at this party, several members of the Nebraska and Mississippi Army National Guard, who were intoxicated or under the influence of drugs, led Briscoe to believe that he was being taken by a lynch mob. A noose was placed around Briscoe’s neck and he claims that he was raised off the ground. Afterwards, Briscoe returned to his barracks where he overturned several beds, and struck at the barracks wall, putting his hand through a glass window.

Following the hanging incident, an investigation was conducted by the National Guard. Captain Richard Stackhouse conducted interviews and took sworn statements from all of the persons involved in the incident. Captain Stackhouse concluded that the mock hanging took place at a party with excessive drinking, that it was a crude, ill-advised prank, but without intent of bodily harm, and that Briscoe participated in the prank voluntarily and remained at the party drinking after the incident. Briscoe initially indicated that he was not interested in making any formal complaint, but he was interested in his pay, his medical benefits, and talking with a race relations officer, all of which received prompt attention.

Brown asserts that after the hanging incident, Briscoe entered a period of deep depression. This continued until January 12, 1977, when Briscoe shot himself in the head, inflicting permanent and severe physical and mental damage to himself.. Brown claims that her son’s attempted suicide was the direct and proximate result of the hanging incident.

Brown argues that the United States is liable in the tort claims action because its employees, the base commander and his permanent party personnel, were negligent in allowing the hanging incident to occur. With respect to the civil rights action, Brown contends that individual defendants Smith, Lopez, Devere, Shultz, Titus, and Morgan, all noncommissioned officers in Briscoe’s military unit, are liable because of their direct participation in the hanging incident. Additionally, Brown contends that various superior officers failed to recognize and correct the racial problems that led to the incident, failed to provide adequate supervision of the National Guard members while on annual training exercises, and purposefully failed to investigate the incident.

II. The Feres Doctrine

The Federal Tort Claims Act of 1946, 28 U.S.C. § 2671 et seq., waived the traditional immunity from suit of the United .States in its sovereign capacity. The FTCA provides for federal jurisdiction of claims against the United States for injuries, negligently caused by government employees acting within the scope of their employment, if a private person would be liable under the same circumstances. In a series of decisions now known as the Feres doctrine, the Supreme Court established a judicially created exception to the waiver of sovereign immunity in the FTCA, holding that the [365]*365United States is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to military service. See United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1948).

Three rationales are generally offered for the Feres principle of military immunity: (1) the “distinctly federal” relationship between the United States and its service personnel; (2) the presence of an alternative compensation system; and (3) the fear of disrupting the military disciplinary structure. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977). Recent court decisions have tended not to emphasize the first two rationales for the Feres doctrine.

The first of the Feres

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