Brown v. Edwards, 82-4216

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation721 F.2d 1442
Docket NumberNo. 82-4216,82-4216
PartiesWilliam (Bob) BROWN, Plaintiff-Appellant, v. Wiley C. EDWARDS and All Other Constables In the State of Mississippi, Defendants-Appellees.
Decision Date03 January 1984

Jim Waide, West Point, Miss., Jacqueline Estes, Tupelo, Miss., for plaintiff-appellant.

William Ryan Hood, Asst. Atty. Gen., Jackson, Miss., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GARZA, RANDALL and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

At issue in this section 1983 action for damages, injunctive relief, and a declaratory judgment, is the Mississippi fee system for constables, Miss.Code Ann. Sec. 25-7-27 (Supp.1982), 1 which the appellant claims impairs

                his right to an objective probable cause determination as required by the Fourth Amendment and the due process clause of the Fourteenth Amendment by compensating constables ten dollars for each charge they make which results in a conviction. 2   The district court dismissed the plaintiff-appellant's suit on motion for summary judgment partly on procedural grounds and partly on the merits.  For the reasons stated below we affirm

On July 18, 1981, the plaintiff-appellant, William (Bob) Brown was target shooting with friends and family on or near a county road in Clay County, Mississippi when approached by a Clay County constable, Wiley C. Edwards, the defendant-appellee. Brown had a pistol which he then put, or began to put, in his pocket. While the affidavits of Brown and Edwards, filed below, relate quite differing particulars, it appears undisputed that something of a verbal altercation ensued between Brown and Edwards and that Edwards attempted to place Brown under arrest for carrying a concealed weapon without a permit and/or for public profanity. After arrival of a deputy sheriff whom Edwards had called for assistance, Brown's arrest was consummated and Brown was taken by the deputy to jail, where he was released, apparently without delay, the deputy signing his bond. There apparently was no warrant for Brown's arrest.

Constable Edwards charged Brown with carrying a concealed weapon, public profanity, and resisting arrest. At the trial, which took place August 18, 1981, before justice of the peace Andrews, Brown pleaded guilty to the charges of public profanity and resisting arrest. The concealed weapon charge was dismissed by the justice of the peace at the same court appearance, on the motion or with the consent of the prosecuting attorney and without a trial. 3 The justice Brown then instituted this section 1983 action against Edwards, 4 in which he argues that the Mississippi fee system for constables, 5 established by Miss.Code Ann. Sec. 25-7-27, which compensates them ten dollars for each charge which results in a conviction, is unconstitutional. He urged three grounds before the district court in support of this conclusion. First, the statute unconstitutionally impairs constables in making "an objective determination of whether a person should be arrested or charges made against him"; second, it encourages them to file multiple charges, thereby maximizing their chances for receiving fees; and third, it gives them a financial incentive to testify against those arrested to increase the chances for convictions.

of the peace convicted Brown on his plea of guilty, without hearing testimony, fined Brown $50 for resisting arrest and $25 for public profanity, and assessed $10 court costs on each of these two offenses. Brown paid the fines and costs to the justice of the peace, apparently without any delay, and thereafter the justice of the peace paid Edwards $20 as his fees under section 25-7-27(a).

The district court opinion considered each of these three grounds in light of each of the three offenses with which Brown was charged. Since Constable Edwards had not testified against Brown on any of the three offenses, the district court held that Brown had no standing to complain that the statute impermissibly biased constables' testimony. 6 It held with respect to the resisting arrest and public profanity offenses that the collateral estoppel effects of Brown's guilty plea barred him from urging his claims that the Mississippi statute unconstitutionally impaired objective determinations of probable cause and encouraged charge "stacking" as to those two offenses.

The district court did reach the merits of Brown's impairment of probable cause determination

                and charge "stacking" arguments with respect to the concealed weapon offense, the charge concerning which had been dismissed.  The court held that the statute did not abridge the Fourth Amendment because the statute encourages arrests not merely where probable cause exists but where the "totality of circumstances [make] it appear highly probable that a conviction will be had and that [the constable] can earn his fee."    The district court also concluded that the intervention of a neutral judge distinguished the case from the Supreme Court decisions in Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977);  Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972);  and Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), and that the fee system, therefore, did not violate due process. 7
A. Availability of Equitable Relief

We consider sua sponte the issue of Brown's standing to seek equitable relief since it raises questions relevant to our jurisdiction. Brown, individually, is the sole plaintiff in this case. Constable Edwards is the sole defendant. So far as the record reflects, Brown has been involved in but a single, discrete incident which might implicate the statute respecting which he seeks equitable relief. The statute does not prohibit or restrict any conduct, nor does it authorize either the making or manner of making of arrests or criminal charges. Brown's complaint does not allege, and nothing in the record suggests, that Brown is in any way likely, or more likely than any other Mississipian, to be again subjected to arrest or charging by any Mississippi constable. Our standing inquiry in this respect is governed by City of Los Angeles v. Lyons, --- U.S. ----, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). There, Lyons sought damages arising out of injuries received from a choke hold administered by the Los Angeles police. He also sought an injunction and declaratory relief against the city to prohibit choke holds "except in situations where the proposed victim of said control reasonably appears to be threatening immediate use of deadly force" and to declare that choke holds are a per se violation of constitutional rights if administered in the absence of the threat of immediate use of deadly force. Reversing the district court's dismissal of these claims, the Ninth Circuit held that Lyons had standing to assert them. On remand the district court granted Lyons a preliminary injunction enjoining choke holds "under circumstances which do not threaten death or severe bodily injury." At ----, 103 S.Ct. at 1664, 75 L.Ed.2d at 683.

The Supreme Court reversed, holding that Lyons did not have standing to seek equitable relief. It reasoned as follows:

"That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. [at ----, 103 S.Ct. at 1667, 75 L.Ed.2d at 686.]


"If Lyons has made no showing that he is realistically threatened by a repetition of his experience of October, 1976, then he has not met the requirements for seeking an injunction in a federal court...."

[Id. at ----, 103 S.Ct. at 1668, 75 L.Ed.2d at 688.]

The Court specifically pointed out that Lyons' "lack of standing" to seek equitable relief respecting the complained of practice rested "on the speculative nature of his claims that he will again experience injury as the result of that practice even if continued." Id. at ----, 103 S.Ct. at 1669, 75 L.Ed.2d at 689 (emphasis added). The Lyons Court also relied for its lack of standing determination on its earlier decisions in Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), and Ashcroft v. Mattis, 431 U.S. 171, 172-73 n. 2, 97 S.Ct. 1739, 1740 n. 2, 52 L.Ed.2d 219 (1977), in which it was held that standing to seek declaratory relief respecting a challenged statute was not established merely by the fact that the plaintiff had on a single previous occasion been harmed by the statute's application, absent a realistic likelihood that the statute would in the future be applied to the detriment of the particular plaintiff in the action. Lyons, --- U.S. at ---- - ----, 103 S.Ct. at 1666-67, 75 L.Ed.2d at 685-86. Golden and Ashcroft are likewise applicable here.

Like the plaintiff in Lyons, Brown is attacking a policy which allegedly encourages police officers to deprive citizens of their constitutional rights and is claiming to have been injured by police conduct affected by this policy. Like the plaintiff in Lyons, however, Brown also fails to "establish any real and immediate threat" that he will again be injured in such a way. Thus, he lacks standing to seek injunctive or declaratory relief.

B. Brown's Claim for Damages

Brown, however, in addition to declaratory and injunctive relief, also sought, and obviously had standing to seek, damages based on his claim that his arrest and the charges filed against him constituted an unconstitutional invasion of his rights in that, as the arresting and charging officer was subject to compensation for these...

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