Baskin v. Parker
| Decision Date | 24 September 1979 |
| Docket Number | No. 76-4071,76-4071 |
| Citation | 602 F.2d 1205 |
| Parties | Gary BASKIN and Beulah Baskin, Plaintiffs-Appellants, v. Eugene PARKER and Curtis L. Smith, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Louisiana.
ON PETITION FOR REHEARING
Before COLEMAN, CLARK and RUBIN, Circuit Judges.
We withdraw our prior opinion, 5 Cir., 588 F.2d 965, and substitute the following:
"(T)he King hath no prerogative, but that which the law of the land allows him," declared Sir Edward Coke in Proclamations, 12 Co.Rep. 74, 76 (1611). Now, over three centuries later, we examine further the scope of the principle that those who enforce the law must themselves obey it in the light of the federal Civil Rights Act that permits suit against every person who under color of a state law subjects any citizen to the deprivation of the rights secured by the Constitution and the laws of the United States. 42 U.S.C. § 1983.
Mrs. J. A. Baskin and her son, Gary Baskin, seek damages they suffered as a result of an alleged illegal and unreasonable search of their property by the sheriff and deputy sheriff of Winn Parish, Louisiana. A judgment in their favor was rendered against the deputy sheriff only. They appeal pro se contending that the damages awarded were inadequate and that the failure to find the sheriff personally liable was erroneous.
The action against Sheriff Parker should not have been dismissed. The sheriff may be personally liable for damages for his participation in obtaining the warrants and organizing the search party; however, the district court did not make findings regarding facts critical to this issue. Although inferences might be drawn, we believe it appropriate to remand for further findings of fact. The resume of facts that follows includes both those made by the trial court, which we conclude were all supported by evidence of record, and those additional factual conclusions that appear well established by the evidence and consistent with the court's explicit conclusions.
Beulah Baskin, the widow of J. A. Baskin who died on September 5, 1974, owns a 320 acre farm in a rural area in Winn Parish, Louisiana near the town of Winnsboro; Gary Baskin, her son, owns a 400 acre farm in the same area. At the time of the events in question, both were residing in a house situated on Gary's farm; a home on Mrs. Baskin's property was rented to a young couple.
On September 17, 1974, Curtis L. Smith, a deputy sheriff for Winn Parish obtained warrants to search the Baskin properties, including 120 acres owned by the J. A Baskin estate, for marijuana and related paraphernalia. Smith lacked probable cause to obtain the warrants because his informants were not credible, and he knew or should have known that the information that had been supplied to him was based on personal grievances against Gary Baskin. The trial court found that, under the circumstances, he had a duty to check the allegations for distortion, misconception or outright untruth.
There was evidence in the record from which the conclusion might have been reached that Sheriff Parker knew before the warrant was obtained of the circumstances surrounding the investigation and participated to some extent in obtaining the warrant, or that he supervised Smith's activities in doing so. Moreover there was evidence that, on the day the warrant was executed, at least part of a posse of four state troopers, three or four deputy sheriffs and the town marshal and his deputy gathered in the sheriff's office, and that the sheriff to some extent directed the posse's activities.
After the warrant was issued, "several" deputies, including Smith, who was apparently in charge, together with the state troopers, left the office in Winnsboro and proceeded to the Baskin property. There they conducted a search described by the trial judge as "transcending the limits of police restraint," and "left a path of destruction upon plaintiffs' property." They forcibly entered both the Baskins' home and their rent house; they destroyed some of their property; they forced locked doors and windows.
The complaint charged violations both of 42 U.S.C. § 1988 and § 1985. With respect to the Section 1985 charge, the court found that there was no evidence that Sheriff Parker and Deputy Smith conspired "to deprive the plaintiffs of their federally protected rights." The infringement was not proved to be the "result of any overt plan or scheme to embark upon such activity." The court found a violation of Section 1983 by Deputy Smith on the basis that he not only procured the warrants improperly but also participated in executing them in an unreasonable manner.
The court held, however, that the evidence "did not establish Any such participation by the Sheriff" in the "denial of their constitutional rights." (Emphasis by the trial court.) The trial judge evidently concluded that Sheriff Parker arrived at the Baskin property after the search was in progress or had been virtually completed, but the opinion neither states nor implies any findings with respect to whether the Sheriff participated in obtaining the warrants or in directing their service and execution. The court also held that the Sheriff was not vicariously liable under the doctrine of Respondeat superior.
Concluding finally that the police conducted in executing the search "shocks the conscience," the court awarded $250 to Gary Baskin and $13.85 to his mother for property damage. He awarded each of them $100 as punitive damages. He decided that plaintiffs' counsel had presented the case so ineptly that attorney's fees should be denied. Defendant Smith has tendered the amount awarded.
Despite the evident difficulties created by the manner in which counsel then representing the plaintiff prepared or, more accurately, failed to prepare for the trial, and in which he presented the evidence, the judge presided patiently and carefully; he commendably and sensitively inquired into matters neglected by counsel. The plaintiffs attack his findings in only three respects: dismissal of the action against the Sheriff; failure to find a conspiracy; and the amount of damages awarded.
The recent decision of the Supreme Court in Monell v. Department of Social Services, 1978, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, has changed the law of this circuit on vicarious liability under § 1983. We previously held that where state law would impose vicarious liability, a like cause of action arose under § 1983. Madison v. Gerstein, 5 Cir. 1971, 440 F.2d 338, 341; Lewis v. Brautigam, 5 Cir. 1955, 227 F.2d 124, 128. See also Taylor v. Gibson, 5 Cir. 1976, 529 F.2d 709, 716; Carter v. Estelle, 5 Cir. 1975, 519 F.2d 1136; Tuley v. Heyd, 5 Cir. 1973, 482 F.2d 590, 594.
After parsing the language used in § 1983 and tracing legislative history, the Monell Court concluded that the official sued (in that case the city government) could not be held liable unless action by the officer or pursuant to this official policy caused a constitutional tort. In other words, it rejected respondeat superior as a theory of recovery under § 1983. We interpret Monell's Ruling as uniformly applicable to § 1983 action in any state. Using the varying contours of local law to define the reach of a federal statutory right of action would make the availability of vicarious liability depend upon the location and, in some states, the nature of the tort. These incidental, irrelevant vagaries should not mold the contours of this national constitutional tort. Adopting each state's law into § 1983 would create a Lex loci doctrine of respondeat superior granted or withheld, on the basis of state rather than federal policy.
The language of the statute governing the remedies available in civil rights actions, 42 U.S.C. § 1988, supports our conclusion that state vicarious liability doctrines are inapplicable in § 1983 suits. Section 1988 allows state remedies to supplement remedies available under federal law when the federal remedies "are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against the law." Section 1988 also provides that the state remedies adopted must not be inconsistent with the Constitution and laws of the United States. Allowing Louisiana's vicarious liability rules to govern this case would be directly contrary to Monell's construction of § 1983, and thus to the requirements of § 1988.
Although Sheriff Parker is not liable for damages on the basis of vicarious liability under Section 1983, there is some question as to whether he may be personally liable for damages under that section because of his participation in obtaining the warrants and organizing the search party. The dismissal of the Sheriff from personal liability for the unreasonable manner in which the warrant was executed is supported by evidence that he did not accompany the search party and that he arrived at the Baskin property after entry into the houses had been effected and the search commenced. There is no evidence that he participated in any property destruction.
However, as we have noted, there was neither explicit nor implicit finding with respect either to his participation in obtaining the warrants or to his part in organizing the search. According to his own testimony, He testified that he was aware of the hearsay nature of the evidence and of the source of at least some of it. He made no effort to have Mrs. Baskin served. Moreover, State Trooper Don McDonald testified that at least part of the posse of seven to...
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