Baskin v. Parker

• Decision Date: 01 February 1979
• Docket Number: No. 76-4071,76-4071
• Citation: 588 F.2d 965
• 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

Page 965

588 F.2d 965

Gary BASKIN and Beulah Baskin, Plaintiffs-Appellants, v. Eugene PARKER and Curtis L. Smith, Defendants-Appellees.

No. 76-4071.

United States Court of Appeals, Fifth Circuit.

Feb. 1, 1979.

H. Evans Scobee, Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

"(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 Franklin 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 because Louisiana law regarding vicarious liability of a sheriff for the acts of his deputy should have been applied, and would have resulted in an assessment of compensatory damages against the sheriff. In addition, the sheriff may be personally liable for punitive 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.

I

Beulah Baskin, the widow of J.A. Baskin who died on September 5, 1974, owns a 320 acre farm in a rural area in Franklin 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 Franklin 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 know 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 marshall 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 supplied.) 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 conduct 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 Parker 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.

II

The circuits are divided on the question of vicarious liability under Section 1983 for acts in deprivation of civil rights. Two circuits have held that the doctrine of Respondeat superior is inapplicable to a Section 1983 action, See Sebastian v. United States, 8 Cir. 1976, 531 F.2d 900, 904 and Williams v. Vincent, 2 Cir. 1974, 508 F.2d 541, 546; two other circuits, including this one, have held that Section 1983 embraces derivative liability. See Taylor v. Gibson, 5 Cir. 1976, 529 F.2d 709, 716; Tuley v. Heyd, 5 Cir. 1973, 482 F.2d 590, 594; Hesselgesser v. Reilly, 9 Cir. 1971, 440 F.2d 901, 903. Compare Monell v. Dept. of Soc. Svcs., 1978, 436 U.S. 658, 690-950, 98 S.Ct 2018, 2036-38, 56 L.Ed.2d 611, 636-38. In this circuit, "the question of a sheriff's vicarious liability under Section 1983 for acts of his deputy is controlled by state law." Tuley v. Heyd, supra, 482 F.2d at 594 and cases there cited. See also Hesselgesser v. Reilly, supra, 440 F.2d at 903. Therefore, the district court should have looked to the law of Louisiana to determine whether the Sheriff was liable for the acts of his deputy.

Louisiana law makes a sheriff personally liable for those acts of his deputies that he directs and that occur in his presence. The bond furnished by his deputies or their liability insurance policy provides the maximum indemnity for all their other acts within the scope of their official duties, including those acts committed out of the sheriff's presence or not directed by him. La.Rev.Stat.Ann. § 33:1433 (West); Foster v. Hampton, La.1977, 352 So.2d 197. Compare LeJeune v. Allstate Ins. Co., La.Ct. of App.1978, 356 So.2d 537, 542, La. Cert. granted, 358 So.2d 956. The Louisiana statute and jurisprudence do not, however, prescribe that only the bondsman or insurer may be sued; they appear to provide that the sheriff is liable as a defendant although the amount of his liability may not exceed the prescribed limits for bond or insurance. The relationship between the sheriff and his deputies is neither master-servant nor principal-agent, and the sheriff's liability is not based on the doctrine of Respondeat superior, see Foster v. Hampton, supra, 352 So.2d at 201, and Gray v. De Bretton, 1939, 192 La. 628, 188 So. 722, but it is, nevertheless, a form of limited vicarious liability.

Deputy Smith's search of the Baskin property pursuant to warrants he had obtained with Sheriff Parker's approval clearly was within the scope of his official duties even though it occurred out of the sheriff's presence. Thus, applying Louisiana law, Sheriff Parker is liable for the search conducted by Deputy Smith and by the search party Smith directed, although only to the extent of Deputy Smith's bond or the limits of the liability insurance that covered Smith. The district court, therefore, improperly dismissed the Section 1983 cause of action against Sheriff Parker. We also conclude, for reasons explained below, that under Louisiana law Sheriff Parker is not vicariously liable for punitive damages.

Louisiana courts view punitive damages as punishment for an offender or as a deterrent to him and to others. See McGee v. Yazoo, & M. V. Railroad, 1977, 206 La. 121, 19 So.2d 21; Loeblich v. Garnier, La.Ct. of App.1959, 113 So.2d 95, 103. These purposes would not be served by subjecting a person to vicarious liability for the acts of others. Thus, the Louisiana Supreme Court has previously held punitive damages to be inappropriate in cases in which liability is predicated solely upon the relationship of the...