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

332 F.2d 855

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 15, 1964
• Docket: 20722
• Status: Published

Opinions

RIVES, Circuit Judge:

This appeal consists of three essentially identical actions, consolidated for appeal, all of which seek actual and punitive damages for alleged deprivation of •certain rights of the plaintiffs growing out of their arrest near Oxford, Mississippi, on October 1, 1962. The plaintiffs -are Virgil Norton, Virgil Wesley, and •James Chapman. Named as defendants -are Nicholas de B. Katzenbach, Deputy Attorney General of the United States; •James P. McShane, Chief of the Executive Office of the United States Marshals; -John Doar, First Assistant to the Assist•ant Attorney General, Civil Rights Division; and William Tucker, Deputy Unit•ed States Marshal. The suits were commenced in the Circuit Court of Lafayette ■County, Mississippi, and were removed to the United States District Court for the Northern District of Mississippi. ‘See 28 U.S.C. § 1441(a), § 1442(a). Treating the defendants’ motions to dismiss as motions for summary judgment, the district court held that all of the defendants were acting within the scope of their authority and are immune from ‘•the liability alleged in these suits. Its ■opinion is reported at 33 F.R.D. 131 (N. D.Miss.1963). Their complaints having been dismissed, the plaintiffs brought this appeal.

The plaintiffs allege that on October 1, 1962 (the day following the enrollment ■of James H. Meredith, a Negro, at the University of Mississippi) they were riding in an automobile on a highway approximately four miles east of Oxford, Mississippi, when the defendants unlawfully and maliciously arrested them without probable cause. The plaintiffs further allege that the defendants maliciously detained them without charges for twenty-one hours, during which time they were made to sit in a rigid position for eighteen hours without speaking, eating, or drinking. They allege that the defendants forced them to witness horrible and nauseating mistreatment of others, fingerprinted and “mugged” them, and subjected them “to all manner of vile abuse and mistreatment.” Moreover, they allege that the defendants maliciously committed assault and battery on them with a large stick or billy club. Other counts allege a conspiracy by defendants to deprive plaintiffs of the equal protection of the laws and equal privileges and immunities under the laws and to prevent or hinder state authorities from giving them equal protection. The plaintiffs apparently are seeking relief under both common law and the Civil Rights Acts, 42 U.S.C. §§ 1983, 1985(3).

I. Common Law.

Any case involving the doctrine of executive or official immunity requires the court to resolve a sharp conflict between two important considerations: the protection of the individual citizen against damage caused by oppressive or malicious action on the part of public officers, and the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits based on acts done in the exercise of their official responsibilities.¹

As to judicial, legislative, and executive officers, the test to determine the existence of immunity from suits for monetary recovery based on allegedly wrongful conduct is whether or not the officers were acting within the scope of their authority or in the discharge of their duties. The controversy has centered around how broadly “scope of authority” should be interpreted — i. e., would malicious acts be within the officers’ scope of authority? Initially, the broadest interpretation of scope of authority was applied to judicial and legislative officers so as to protect them from civil suits to recover for actions taken by them in the exercise of their official functions, irrespective of the motives with which those acts were alleged to have been performed. By 1896 this broad interpretation had been carried over to heads of executive departments, provided the action had “more or less connection with the general matters committed by law to [their] control or supervision.” Spalding v. Vilas, 1896, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780. After that time the doctrine of broad interpretation began to spread to subordinate officials, directly leading to the present state of the law.² The modern approach to official immunity is exemplified by Judge Learned Hand’s opinion in Gregoire v. Biddle, 2 Cir.1949, 177 F.2d 579, cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363. Judge Hand's oft-quoted analysis is as follows:

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in pi’actice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the ease has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must ixxdeed be means of punishing public officers who have been truant to their duties ; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest offieex’s than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books.” 177 F.2d at 581.

This statement of the law is made binding on us by the express approval afforded it by the Supreme Court in Barr v. Matteo, 1959, 360 U.S. 564, 571-72, 79 S.Ct. 1335.³ The Supreme Court clearly indicated that allegations of malice are not sufficient to prevent the application of executive immunity: “The fact that the action here taken was within the outer perimeter of petitioner’s line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint * * 360 U.S. at 575, 79 S.Ct. at 1341. The requirements that the act be within the outer perimeter of the line of duty is no doubt another way of stating that the act must have more or less connection with the general matters committed by law to the officer’s control or supervision, and not be manifestly or palpably beyond his authority. See Spalding v. Vilas, supra at 498 of 161 U.S., 16 S.Ct. 631.

In Barr v. Matteo, supra, the Court also held that the rank of the officer, in itself, does not determine the applicability of the doctrine:

“We do not think that the principle announced in Vilas can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.

“To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted— the relation of the act complained of to ‘matters committed by law to his control or supervision,’ Spalding v. Vilas, supra, 161 U.S. at page 498, 16 S.Ct. at page 637 — which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits.” 360 U.S. at 572-74, 79 S.Ct. at 1340, 1341. (Emphasis added.)⁴

There is another limiting factor —the nature of the duties. It is often said that the officer must be performing a “discretionary function.” In Ove Gustavsson Contracting Co. v. Floete, 2 Cir.1962, 299 F.2d 655, cert. denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050, Judge Medina explained what this requirement actually means:

“There is no litmus paper test to distinguish acts of discretion * *, and to require a finding of ‘discretion’ would merely postpone, for one step in the process of reasoning, the determination of the real question— is the act complained of the result of a judgment or decision which it is necessary that the Government official be free to make without fear or threat of vexatious or fictitious suits and alleged personal liability ?” 299 F.2d at 659.

The federal courts have applied the doctrine of official immunity to suits against numerous officials for many different torts.⁵ By the great weight of authority, law enforcement officers are immune from civil suits based on allegedly malicious acts. See, e. g., Cooper v. O’Connor, 1938, 69 App.D.C. 100, 99 F.2d 135, 139, 118 A.L.R. 1440; Swanson v. Willis, D.Alaska 1953, 114 F.Supp. 434, aff’d per curiam, 220 F.2d 440 (9th Cir.); Laughlin v. Garnett, 1943, 78 U.S.App.D.C. 194, 138 F.2d 931; Hartline v. Clary, E.D.S.C.1956, 141 F. Supp. 151; Toscano v. Olesen, S.D.Cal. 1960, 189 F.Supp. 118. The case of Kozlowski v. Ferrara, S.D.N.Y.1954, 117 F. Supp. 650, stands alone among federal cases in holding that an FBI agent is not in a high enough position of responsibility to be entitled to immunity. That case would seem to be now controlled by Barr v. Matteo and Gustavsson.⁶

Up to this time we have not referred to cases brought under the Civil Rights Acts, such as Lewis v. Brautigam, 5 Cir.1955, 227 F.2d 124, 55 A.L.R.2d 505. The question involved in these cases is the extent, if any, to which the Civil Rights Acts have abrogated the immunity doctrine. While it is clear that the common-law immunity afforded legislative ⁷ and judicial⁸ officers applies in suits under the Civil Rights Acts, there remains much uncertainty as to the extent to which immunity for subordinate executive officials applies, if it applies at all.⁹ In view of our conclusion later in this opinion that the instant suits are not within the purview of the Civil Rights Acts, we do not decide at this time the scope of official immunity under those statutes. We need only say that the doctrine may be given more limited application in those suits than it has been given at common law.

We are left to the hard choice of deciding whether the extremely aggravated wrongs as alleged in the complaint must remain unredressed because of the countervailing consideration of public policy expressed in Barr v. Matteo, supra, 360 U.S. at 576, 79 S.Ct. at 1342:

“To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good.”¹⁰

To malee the court’s choice less difficult, and to negative any charges that would 'lead to the conclusion that the acts of the defendants were beyond the outer perimeter of their line of duty, the defendants properly employed the modern procedure of offering testimony in support of their motions to dismiss treated as motions for summary judgment. Rules 12 (c) and 56 (e), Fed.R.Civ.P. The defendants offered the affidavit of Honorable Robert F. Kennedy, the Attorney General of the United States, that, at his direction, each of the defendants was in the performance of his official duties described in the affidavit, including the execution and enforcement of the orders of this Court and of the United States District Court for the Southern District of Mississippi. Mr. Kennedy’s affidavit concluded:

“That at all relevant times and places set forth in the complaints in James Chapman v. James P. McShane, et al., Virgil Wealey (sic) v. James P. McShane, et al.; and Virgil Norton v. James P. McShane, et al., defendants Katzenbach, Doar, McShane and Tucker were discharging their official governmental responsibilities — Mr. Katzenbach as Deputy Attorney General and Mr. McShane as Chief of the Executive Office for United States Marshals and as a Deputy United States Marshal, Mr. Doar as an officer of the Department of Justice, and Mr. Tucker as a Deputy United States Marshal.”

In the face of the Attorney General’s affidavit, the plaintiffs cannot rest upon the mere allegations of their complaints unsupported by sworn testimony. It became incumbent on the plaintiffs, by affidavits or otherwise as provided in Rule 56, supra, to set forth specific facts showing that there was a genuine issue for trial as to whether the defendants were acting within the line and scope of their official duties. See Cunningham v. Securities Investment Company, 5 Cir.1960, 278 F.2d 600, 602, 603. The plaintiffs introduced no evidence whatever, and thus failed completely to meet the burden resting upon them.

In that state of the record, we must assume that to the extent the defendants allegedly acted overzealously or maliciously, they were nevertheless acting within the outer perimeter of .their line of duty, and the alleged acts had more or less connection with the general matters committed by law to their control and supervision. Moreover, we are of the opinion that the selection of a proper method of enforcing a court’s orders in the face of active opposition and obstruction is a decision which it is necessary that these officers be free to make without fear or threat of vexatious or fictitious suits and alleged personal liability.

II. The Civil Rights Act, 42 U.S.C. § 1983.

The plaintiffs assert that they have alleged a cause of action under 42 U.S.C. § 1983, which is a federal civil rights statute imposing civil liability on any “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory” subjects anyone to the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” (Emphasis added.) Thus the person must be acting under color of state law for the section to apply, whereas the defendants in the instant suits were acting under color of federal law. As Judge Hand stated in the Gregoire case, “Section 43 [the precursor of § 1983] is so plainly limited to acts done under color of some state or territorial law or ordinance that no discussion can make it clearer than appears from its reading.” 177 F.2d at 581. Accord, Papagianakis v. The Samos, 4 Cir.1950, 186 F.2d 257, 262, cert. denied, 341 U.S. 921, 71 S.Ct. 741, 95 L.Ed. 1354 (1951); Swanson v. Willis, supra; Laughlin v. Rosenman, 1947, 82 U.S.App.D.C. 164, 163 F.2d 838, 843; cf. Wheeldin v. Wheeler, 1963, 373 U.S. 647, 650 n. 2, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605. ¹¹ The new venue section, 28 U.S.C. § 1391(e), certainly does not expand the scope of coverage of 42 U.S.C. § 1938.¹²

III. The Civil Rights Act, 42 U.S.C. § 1985(3).

Plaintiffs allege a conspiracy to deprive them of equal protection of the laws and equal privileges and immunities under the laws and to prevent or hinder state authorities from giving them equal protection. Thus plaintiffs are trying to invoke 42 U.S.C. § 1985(3), which provides a right of action for damages,

“[i]f two or more persons in any State or Territory conspire * .* * for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws if if if **

However, the facts alleged amount to malicious arrest and detention, assault and battery, and sundry deprivations of due process. To come within this statute, plaintiffs would have to allege facts amounting to intentional and purposeful discrimination to the plaintiffs individually or as members of a class. Snowden v. Hughes, 1944, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. This the plaintiffs have not done. See Whittington v. Johnston, 5 Cir.1953, 201 F.2d 810, cert. denied, 346 U.S. 867, 74 S.Ct. 103, 98 L.Ed. 377; Dunn v. Gazzola, 1 Cir.1954, 216 F.2d 709, 711; Miles v. Armstrong, 7 Cir. 1953, 207 F.2d 284; Morgan v. Null, S.D.N.Y.1954, 120 F.Supp. 803.¹³

For the reasons stated herein the district court’s dismissal of the three suits is

Affirmed.

1 . Barr v. Matteo, 1959, 360 U.S. 564, 565, 79 S.Ct. 1335, 3 L.Ed.2d 1434; Gregoire v. Biddle, 2 Cir. 1949, 177 F.2d 579, 581, cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363.

2 . Excellent discussions of this history may be found in Gregoire v. Biddle, supra, n. 1; Papagianakis v. The Samos, 4 Cir. 1950, 186 F.2d 257, cert. denied, 341 U.S. 921, 71 S.Ct. 741, 95 L.Ed. 1354 (1951); Developments in the Law-Remedies Against the United States and Its Officials, 70 Harv.L.Rev. 827, 834-3S (1957).

3 . Although Barr v. Matteo involved a suit based on defamation, the majority opinion clearly implies that the rules of law expressed therein apply to civil tort suits generally; and the opinion has been so construed in subsequent cases. See, e. g., Bershad v. Wood, 9 Cir. 1961, 290 F.2d 714, 719.

4 . “[S]ound policy would seem to place on level ground all official duties involving the exercise of judgment and discretion.” Ove Gustavsson Contracting Co. v. Floete, 2 Cir. 1962, 299 F.2d 655, 659, cert. denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050.

5 . The following list of cases, although by no means exhaustive, gives some idea of the breadth of application of the doctrine: Barr v. Matteo, supra, note 1 (Acting Director of Office of Rent Stabilization — malicious defamation); Howard v. Lyons, 1959, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (Commander of Boston Naval Shipyard — defamation); Gregoire v. Biddle, supra, note 1 (Attorney General of the United States, Director of the Enemy Control Unit of the Department of Justice, District Director of Immigration — malicious arrest); Ove Gustavsson Contracting Co. v. Floete, supra, note 4 (Contracting Officers of GSA); Papagianakis v. The Samos, supra, note 2 (Immigration Officials — false imprisonment); Cooper v. O’Connor, 1938, 69 App.D.C. 100, 99 F. 2d 135, 118 A.L.R. 1440 (FBI Agent, Comptroller of the Currency of the United States, United States Attorney, Assistant United States Attorney, etc. —malicious prosecution); Laughlin v. Rosenman, 1947, 82 U.S.App.D.C. 164, 163 F.2d 838 (President’s Special Counsel, Attorney General, Special Assistant to the Attorney General, Director of Federal Prisons, Warden of Penitentiary— malicious prosecution); Brownfield v. Landon, 1962, 113 U.S.App.D.C. 248, 307 F.2d 389, cert. denied, 371 U.S. 924, S3 S.Ct. 291, 9 L.Ed.2d 232 (Air Force Inspector- — defamation); Laughlin v. Garnett, 1943, 78 U.S.App.D.C. 194, 138 F.2d 931 (United States Attorney, Police Officer — malicious prosecution) ; Swanson v. Willis, D.Alaska, 1953, 114 F.Supp. 434, aff’d per curiam, 220 F.2d 440 (9 Cir.) (Deputy United States Marshal— battery, false arrest); Borshad v. Wood, supra, note 3 (Internal Revenue Service Officers); Waterman v. Nelson, 2 Cir. 1949, 177 F.2d 965 (Director Civil Service Region); Koch v. Zuieback, S.D. Cal.1961, 194 F.Supp. 651, aff’d, 9 Cir., 316 F.2d 1 (local draft board officials); Hartline v. Clary, E.D.S.C.1956, 141 F. Supp. 151 (Special Agents of Alcohol & Tobacco Tax Division — malicious assault) ; Gamage v. Peal, N.D.Cal.1963, 217 F.Supp. 384 (Air Force doctor) ; Toscano v. Olesen, S.D.Cal.1960, 189 F. Supp. 118 (Postal Inspector); Blitz v. Boog, 2 Cir. 1964, 328 F.2d 596 (Government psychiatrist — false imprisonment) .

6 . There is dicta in Hughes v. Johnson, 9 Cir. 1962, 305 F.2d 67, 70, that there is no immunity for an unlawful search and seizure. No authority was cited for that statement, and it would seem to be contrary to that court’s holding in Bershad v. Wood, 9 Cir. 1961, 290 F.2d 714.

We do not consider as being in point such cases as Colpoys v. Foreman, 1947, 82 U.S.App.D.C. 349, 163 F.2d 908, and McVey v. Gross, N.D.Tex.1926, 11 F.2d 379, since they involved suits on a statutory bond. See 28 U.S.C. § 544(c); cf. Swanson v. Willis, supra n. 5, at 435, of 114 F.Supp. Likewise, Wilson v. Bittinger, 1958, 104 U.S.App.D.C. 403, 262 F.2d 714, was based on sections 11-735 and 11-724 of the D.C.Code.

The immunity to be afforded federal officers is governed by federal law. See Wlieeldin v. Wheeler, 1963, 373 U.S. 647, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605. In common law actions against state officers, such as in Nesmith v. Alford, 5 Cir. 1963, 318 F.2d 110, the doctrine of immunity is controlled by state law under Erie R. R. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. In Nesmith immunity was not raised as a defense except as to one quasi-judicial officer, who was in fact held to be immune.

7 . See Tenney v. Brandhove, 1951, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019.

8 . See, e. g., Kenney v. Fox, 6 Cir. 1956, 232 F.2d 288. The Nesmith case, supra n. 6, would seem to fit into this category.

9 . See generally, Note, The Doctrine of Official Immunity Under the Civil Rights Acts, 68 Harv.L.Rev. 1229 (1955); Comment, Civil Liability of Subordinate State Officials Under the Civil Rights Acts and the Doctrine of Official Immunity, 44 Calif.L.Rev. 887 (1956). The problem was first raised in Picking v. Pennsylvania R. R., 3 Cir. 1945, 151 F.2d 240, 250. It was discussed, but questionably resolved, in Hoffman v. Halden, 9 Cir. 1959, 268 F.2d 280, 298-300. See also, Rhodes v. Houston, D.Neb.1962, 202 F. Supp. 624, 636, aff’d per curiam, 8 Cir., 309 F.2d 959, cert. denied, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719.

10 . Most writers agree that if the Federal Tort Claims Act were amended to allow such suits as the instant one to be brought against the United States, both policy interests would be served. See, e. g., Davis, Administrative Officers’ Tort Liability, 55 Mich.L.Rev. 201 (1956); 3 Davis, Administrative Law Treatise, § 2607 (1958 ed. & 1963 Supp.).

11 . The criminal section, 18 U.S.C. § 242, however, applies to persons acting “under color of any law.” (Emphasis added.) Because of section 1983’s additional limitation to persons acting under color of state or territorial law, cases decided under the criminal section, such as Screws v. United States, 1944, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, and Logan v. United States, 1892, 144 U.S. 263, 12 S. Ct. 617, 36 L.Ed. 429, are not relevant as to section 1983 even though they involve persons acting under color of federal law. See cases cited in text. The case of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed .2d 492, involved section 1983, but the suit was against state officers acting under color of state law. While the Court gave the same definition to “under color of” as was used in Screws, it did not extend the coverage of § 1983 to those acting under color of federal law.

12 . The purpose of the new section was to make it possible to bring actions against government officials and agencies in district courts outside of the District of Columbia. It was intended that the new section “not create new liabilities or new causes of action against the U.S. Government” and “not give access to the Federal courts to an action which cannot now be brought against a Federal official in the U.S. District Court for the District of Columbia.” S.Rep. No. 1992, 87th Cong., 2d Sess. (1962).

13 . Although we realize that there is some authority to the effect that 42 U.S.C. § 1985(c) applies only where some of the persons so conspiring acted under color of state law (see Koch v. Zuieback, D.C., 194 F.Supp. 651, 656-658, aff’d, 316 F.2d 1 (9 Cir. 1963)), we do not find it necessary to pass on that question.