739 F.2d 362 (8th Cir. 1984), 83-1234, Brown v. United States

Docket Nº:83-1234, 83-1242.
Citation:739 F.2d 362
Party Name:Della BROWN, Conservator of Dan C. Briscoe, A Protected Person, Appellant, v. UNITED STATES of America, Appellee. Della BROWN, Conservator of Dan C. Briscoe, A Protected Person, Appellant, v. Ronald L. SMITH; Francis L. Winner; Burl M. Johnson; Larry J. Lopez; Daniel A. Devere; Con L. Shultz; Stephen J. Titus; and Thomas S. Morgan, John Siefkes, Ga
Case Date:July 20, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 362

739 F.2d 362 (8th Cir. 1984)

Della BROWN, Conservator of Dan C. Briscoe, A Protected

Person, Appellant,

v.

UNITED STATES of America, Appellee.

Della BROWN, Conservator of Dan C. Briscoe, A Protected

Person, Appellant,

v.

Ronald L. SMITH; Francis L. Winner; Burl M. Johnson;

Larry J. Lopez; Daniel A. Devere; Con L. Shultz; Stephen

J. Titus; and Thomas S. Morgan, John Siefkes, Gale Shields,

Gerald E. Thompson and Richard Britton, Appellees.

Nos. 83-1234, 83-1242.

United States Court of Appeals, Eighth Circuit

July 20, 1984

Submitted Oct. 10, 1983.

Page 363

Ronald D. Lahners, U.S. Atty., Paul W. Madgett, Asst. U.S. Atty., Omaha, Neb., for the U.S.A., John Siefkes, Gale Shields, Gerald E. Thompson and Richard Britton.

M.J. Bruckner, Marti, Dalton, Bruckner, O'Gara & Keating P.C., Lincoln, Neb., for Winner.

Douglas L. Kluender, Healey, Brown, Wieland, Kluender, Atwood & Jacobs, Lincoln, Neb., for Stephen J. Titus.

Paul L. Douglas, Atty. Gen., J. Kirk Brown, Asst. Atty. Gen., Lincoln, Neb., for Smith, Johnson, Lopez, Devere, Shultz and Morgan.

James A. Eske, Barlow, Johnson, DeMars & Flodman, Lincoln, Neb., for appellant.

Before BRIGHT, JOHN R. GIBSON and FAGG, Circuit Judges.

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. Sec. 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. Secs. 1981 and 1983 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 hanging

Page 364

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 incident, 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. Sec. 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...

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