774 F.2d 1495 (11th Cir. 1985), 82-8457, Gilmere v. City of Atlanta, Ga.

Docket Nº:82-8457, 82-8760.
Citation:774 F.2d 1495
Party Name:Emma F. GILMERE, individually and as Administratrix of the Estate of Thomas E. Patillo, and for the benefit of his next of kin, Plaintiff-Appellee, Cross- Appellant, v. CITY OF ATLANTA, GEORGIA, et al., Defendants-Appellants, Cross-Appellees.
Case Date:October 15, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1495

774 F.2d 1495 (11th Cir. 1985)

Emma F. GILMERE, individually and as Administratrix of the

Estate of Thomas E. Patillo, and for the benefit

of his next of kin, Plaintiff-Appellee,

Cross- Appellant,


CITY OF ATLANTA, GEORGIA, et al., Defendants-Appellants,


Nos. 82-8457, 82-8760.

United States Court of Appeals, Eleventh Circuit

October 15, 1985

Page 1496

Marva Jones Brooks, Mary Carole Cooney, Gearge R. Ference, Atlanta, Ga., for defendants-appellants, cross-appellees.

J.M. Raffauf, Decatur, Ga., for plaintiff-appellee, cross-appellant.

Elizabeth J. Appley, Ralph S. Goldberg, Atlanta, Ga., amicus curiae, for ACLU.

Ira J. Kurzban, Miami, Fla., amicus curiae, for NECL.

Joel V. Lumer, Neil H. Chonin, Miami, Fla., amicus curiae, for ACLU of Florida & Nat. Emergency Civil Liberties Com'n.

Appeals from the United States District Court for the Northern District of Georgia.


VANCE, Circuit Judge:

On New Year's Day in 1980, Thomas Patillo died at the hand of an Atlanta policeman. We accepted this case for en banc consideration primarily to determine whether Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precludes a claim by his administratrix under 42 U.S.C. Sec. 1983 because state tort law provides a comparable remedy.


The facts as found by the district court disclose that after drinking heavily and driving about Atlanta throughout New Year's Day, Thomas Patillo had a near-collision with a van and then got into an argument with the van's driver. Afterward, the driver called the police and reported that Patillo had pulled a gun from the trunk of his car and threatened him. When Officers Sampson and Craig arrived at Patillo's home, they ordered him to the

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police car for questioning. Patillo initially put up some resistance by attempting to flee and then flailing his arms about, but these efforts were ineffectual because of his drunken condition. The officers then began escorting him by force and, according to eyewitnesses, began beating him about the head. As the party neared the patrol car, Patillo broke free of their hold. During the ensuing scuffle, Sampson shot Patillo in the stomach and killed him. 1

Patillo's sister, as administratrix of his estate, sued the police officers, their supervisors and the City of Atlanta under 42 U.S.C. Sec. 1983 for violations of his fourth, eighth and fourteenth amendment rights and under state tort law. After a bench trial, the district court held that: (1) both police officers were liable under section 1983 for beating Patillo; (2) Sampson was liable under section 1983 for shooting Patillo; (3) the city was also liable under section 1983 for training Sampson in a grossly negligent manner; (4) the police officers' supervisors were not liable because the plaintiff had failed to prove an "affirmative link" between the supervisors' conduct and Patillo's injuries as required by Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); and (5) the plaintiff's state law claims either were frivolous or would result in damages that would duplicate those already awarded under section 1983. A panel of this court reversed the district court on the first two grounds, concluding that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precluded the plaintiff's claims against the police officers because state tort remedies were available to provide redress for the beating and shooting. It also reversed the finding of liability against the city on the ground that municipal liability cannot be predicated on negligence but rather requires proof that the constitutional violations resulted from policies or customs actually developed or affirmatively sanctioned by the city's policymakers. It upheld the district court on the supervisory liability issue and remanded for reconsideration of the state law assault and battery claims in light of its decision to vacate the parallel section 1983 claims. Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir.1984). We address each of the district court's holdings in turn.


The initial and primary focus of our concern is whether Parratt precludes the plaintiff from bringing a section 1983 2 suit against the police officers because there exists a basis for liability under state tort law. Parratt involved a claim by a prisoner against state prison administrators for the negligent deprivation of some mail-order hobby materials valued at $23.50. The Court noted initially that "one might well inquire why respondent brought an action in federal court to recover damages of such a small amount for negligent loss of property." 451 U.S. at 529, 101 S.Ct. at 1910. The Court then went on to hold that the due process clause was not violated because "the deprivation did not occur as a result of some established state procedure," id. at 544, 101 S.Ct. at 1917, and because the state provided adequate procedural due process through its tort claims

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statute. Id. The tenor of the Court's decision makes clear that its principal concern was to prevent the trivialization of section 1983 into " 'a font of tort law to be superimposed upon whatever systems may already be administered by the States,' " id. at 544, 101 S.Ct. at 1917 (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)). The precise scope of the holding remains uncertain, however, and courts throughout the federal circuits have struggled to formulate a workable set of criteria for determining its applicability to other fact situations and other constitutional claims. Some courts have read the case broadly to foreclose section 1983 relief when it overlaps state tort remedies. See, e.g.; Daniels v. Williams, 720 F.2d 792, 795 (4th Cir.1983), cert. granted, --- U.S. ----, 105 S.Ct. 1168, 84 L.Ed.2d 320 (1985); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.1981), aff'd on other grounds, Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). Other courts have sought to make principled distinctions between Parratt and the cases before them, reasoning that the Supreme Court could not have meant to deny every section 1983 plaintiff his day in federal court, no matter how egregious the constitutional violation, simply because of the availability of a similar tort action. See, e.g., Brewer v. Blackwell, 692 F.2d 387, 394-95 (5th Cir.1982); Duncan v. Poythress, 657 F.2d 691, 704-05 (5th Cir. Unit B 1981); Shillingford v. Holmes, 634 F.2d 263 (5th Cir. Unit A 1981). With these conflicting concerns in mind, we turn our attention to the situation before us--the intentional infliction of personal injury and death by means of excessive police force--and we conclude that the legislative history behind the statute, the Supreme Court's own pronouncements in other cases, and the limits set by the Court in Parratt itself all indicate that its holding does not extend to the constitutional claims asserted here. 3

The legislative history of section 1983 has been outlined many times. See Patsy v. Board of Regents, 457 U.S. 496, 502-08, 102 S.Ct. 2557, 2561-63, 73 L.Ed.2d 172 (1982); Mitchum v. Foster, 407 U.S. 225, 238-42, 92 S.Ct. 2151, 2159-62, 32 L.Ed.2d 705 (1972); McNeese v. Board of Education, 373 U.S. 668, 671-72, 83 S.Ct. 1433, 1435-36, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 171-83, 81 S.Ct. 473, 475-82, 5 L.Ed.2d 492 (1961). Whereas one may well need to look hard before finding a congressional intent to make a federal case out of a negligent deprivation of a prisoner's hobby kit, the debates do indicate that a primary motivation behind the passage of the statute was the desire to eliminate the physical violence that was being visited on citizens by those entrusted to keep the peace. Originally called the Ku Klux Klan Act because of its focus on eliminating Klan activities which were terrorizing the South, the Act also was concerned with affording a federal remedy "against incursions under the claimed authority of state law...." Mitchum, 407 U.S. at 239, 92 S.Ct. at 2160. Congress further indicated that both the egregious nature of the harms being reported and the inefficacy of remedies sought in the state courts made the situation serious enough to warrant direct supervision by the federal courts regardless of the existence of comparable remedies under state law. Patsy, 457 U.S. at 502-08, 102 S.Ct. at 2561-63. The harm alleged in this case resulted from exactly

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the sort of official brutality which prompted passage of the Act. Whether or not the motivations behind police brutality have changed since 1871, and whether or not we may believe that the state courts actually do a better job of affording redress for those harms today, see Neuborne, The Myth of Parity, 90 Harv.L.Rev. 1105 (1977), the statutory grant of federal jurisdiction over section 1983 suits indicates that Congress, at least, continues to adhere to the belief that police abuse is a sufficient threat to constitutional rights to warrant "a federal right in federal courts." Monroe, 365 U.S. at 180, 81 S.Ct. at 480.

The Supreme Court's pronouncements in a number of cases indicate likewise that it would not relegate the victim of an intentional and unjustified beating or killing to state tort law in all circumstances. Monroe, the case which opened the door to the expansion of section 1983 litigation by recognizing that the statute created a private right of action, involved an instance of police abuse. 365 U.S. at 169, 81 S.Ct. at 474. In Jones v. Hildebrant, 432 U.S. 183, 185, 97 S.Ct. 2283, 2285, 53 L.Ed.2d 209 (1977), the Court...

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