Brawner v. Irvin

• Decision Date: 01 May 1909
• Citation: 169 F. 964
• Parties: BRAWNER v. IRVIN.
• Court: U.S. District Court — Northern District of Georgia

169 F. 964

BRAWNER v. IRVIN.

United States Circuit Court, N.D. Georgia, Eastern Division.

May 1, 1909

E. C Kinnebrew, for plaintiff.

Sam Olive, for defendant.

NEWMAN District Judge.

The declaration in this case is as follows:

'The petition of Lula Brawner shows that W. H. Irvin has injured and damaged her in the sum of $5,000 under the facts set forth in the following paragraphs:

'Second. Said W. H. Irvin is a resident of Elbert county, Ga.

'Third. For that heretofore, to wit, on the 20th day of June, 1908, your petitioner was living in the city of Elberton in Elbert county, Ga., with her husband, William Brawner, and her children in her own house, attending to her domestic duties, at peace with all the world and demeaning herself as an orderly and law-abiding woman.

'Fourth. Your petitioner further shows that while at her home at the time and place mentioned in paragraph 3 of this petition and living in the condition therein set forth, the defendant in this case, W. H. Irvin, the then chief of police of the said city of Elberton, called your petitioner from her house into her yard, arrested her, and then and there maliciously and cruelly assaulted and beat her with a whip, cutting her flesh in scars, causing her much pain and suffering, all without fault on her part, and without any just cause or provocation.

'Fifth. When the said W. H. Irvin arrested petitioner as stated in paragraph 4 of this petition, and before whipping her, he charged her with having struck a child of his relatives, which charge petitioner then and there denied, and which she now avers to be wholly and absolutely untrue.

'Sixth. The defendant, after whipping petitioner as charged in paragraph 4 of this petition, locked her up in the city prison, immediately, kept her there for two hours, after which he discharged her from custody without preferring any charge against her and without requiring her to give bond for her appearance before any court.

'Seventh. As chief of police of the city of Elberton, the defendant has the power under the laws, ordinances, and regulations of the city government to arrest offenders and under certain conditions to put them in custody, and in treating petitioner as set forth in the foregoing paragraphs he was acting under color of his official authority, and subjected her to a different punishment from that prescribed for citizens by reason of her color.

'Eighth. The whipping of petitioner by the defendant was in an open and public manner, in the daytime. The people on neighboring lots being spectators, it subjected petitioner to great mortification.

'Ninth. The state courts of Elbert county have declined to prosecute the defendant after being asked by petitioner so to do. The grand jury took no action on the matter. Petitioner asks for redress under the Constitution and laws of the United States.

'Tenth. By reason of the unprovoked and aggravated character of the assault, the contempt of public justice displayed by the defendant in his usurpation of power, and the pain and mortification caused to petitioner, she prays that the court may allow her exemplary and punitive damages in this case.

'Eleventh. All of the foregoing happened to the injury and damage of petitioner as set forth in paragraph 1 of this petition.'

Then follows the prayer for process.

Defendant has filed a plea to jurisdiction and demurrer.

It is sought to support this suit by section 5510, Rev. St. (U.S. Comp. St. 1901, p. 3713), which reads as follows:

'Every person who, under color of any law, statute, ordinance, regulation, or custom, subjects, or causes to be subjected, any inhabitant of any state or territory to the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, than are prescribed for the punishment of citizens, shall be punished,' etc.

This, as will be seen, is a penal statute, so it could hardly be sufficient to support a civil suit.

Counsel for plaintiff further invokes section 1979, Rev. St. (U.S. Comp. St. 1901, p. 1262), which reads as follows:

'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'

It does not appear from the declaration in this case that the defendant has deprived the plaintiff of any rights, privileges, or immunities secured by the Constitution and laws of the United States. As is well understood, of course, the right of an individual to life, liberty, and property, and to be free from molestation, is primarily and originally the right of a citizen of the state of which the individual is an inhabitant. To bring a case within this section, it must appear that some right, privilege, or immunity secured by the Constitution and laws of the United States has been infringed. It is useless, of course, to attempt to support this proceeding under the fourteenth or fifteenth amendments to the Constitution of the United States. These are limitations upon the states. Nor is there any warrant for such procedure under the thirteenth amendment.

Without discussing all the cases since the Slaughterhouse Cases, 16 Wall. 36, 21 L.Ed. 394, I think the determination of this question is sufficiently found in Hodges v. United States, 203 U.S. 1, 27 Sup.Ct. 6, 51 L.Ed. 65. In that case the defendant was charged with conspiracy against certain persons named, 'citizens of the United States of African descent, in the free exercise and enjoyment of rights and privileges secured to them and each of them by the Constitution and laws of the United States, and because of their having exercised the same. ' The facts charged were that the persons against whom the conspiracy was said to have been formed had made contracts to work for certain sawmill operators as laborers and workmen, and the conspirators threatened to injure them in their persons, and that the conspirators unlawfully marched and moved in a body, armed with deadly weapons, and threatened and intimidated the said workmen, for the purpose of compelling them to quit their employment and work at the sawmills; all this being done because they were colored men and citizens of African descent, contrary to the form of the statute, etc. There was a demurrer in the Circuit Court, which demurrer was overruled, and thereupon the case was taken directly to the Supreme Court of the United States on a writ of...