Norton v. McShane, No. 20722.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation332 F.2d 855
Docket NumberNo. 20722.
Decision Date15 July 1964
PartiesVirgil NORTON, Virgil Wesley and James Chapman, Appellants, v. James P. McSHANE et al., Appellees.

332 F.2d 855 (1964)

Virgil NORTON, Virgil Wesley and James Chapman, Appellants,
James P. McSHANE et al., Appellees.

No. 20722.

United States Court of Appeals Fifth Circuit.

June 1, 1964.

Rehearing Denied July 15, 1964.

332 F.2d 856

Hartwell Davis, Montgomery, Ala., Richard H. Carlisle, Columbus, Miss.,

332 F.2d 857
Robert Varner, Montgomery, Ala., for appellants

Sherman L. Cohn, Stephen B. Swartz, Attys., Dept. of Justice, John Douglas, Asst. Atty. Gen., Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for appellees.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

RIVES, Circuit Judge:

This appeal consists of three essentially identical actions, consolidated for appeal, all of which seek actual and punitive damages for alleged deprivation of certain rights of the plaintiffs growing out of their arrest near Oxford, Mississippi, on October 1, 1962. The plaintiffs are Virgil Norton, Virgil Wesley, and James Chapman. Named as defendants are Nicholas de B. Katzenbach, Deputy Attorney General of the United States; James P. McShane, Chief of the Executive Office of the United States Marshals; John Doar, First Assistant to the Assistant Attorney General, Civil Rights Division; and William Tucker, Deputy United States Marshal. The suits were commenced in the Circuit Court of Lafayette County, Mississippi, and were removed to the United States District Court for the Northern District of Mississippi. See 28 U.S.C. § 1441(a), § 1442(a). Treating the defendants' motions to dismiss as motions for summary judgment, the district court held that all of the defendants were acting within the scope of their authority and are immune from the liability alleged in these suits. Its opinion is reported at 33 F.R.D. 131 (N. D.Miss.1963). Their complaints having been dismissed, the plaintiffs brought this appeal.

The plaintiffs allege that on October 1, 1962 (the day following the enrollment of James H. Meredith, a Negro, at the University of Mississippi) they were riding in an automobile on a highway approximately four miles east of Oxford, Mississippi, when the defendants unlawfully and maliciously arrested them without probable cause. The plaintiffs further allege that the defendants maliciously detained them without charges for twenty-one hours, during which time they were made to sit in a rigid position for eighteen hours without speaking, eating, or drinking. They allege that the defendants forced them to witness horrible and nauseating mistreatment of others, fingerprinted and "mugged" them, and subjected them "to all manner of vile abuse and mistreatment." Moreover, they allege that the defendants maliciously committed assault and battery on them with a large stick or billy club. Other counts allege a conspiracy by defendants to deprive plaintiffs of the equal protection of the laws and equal privileges and immunities under the laws and to prevent or hinder state authorities from giving them equal protection. The plaintiffs apparently are seeking relief under both common law and the Civil Rights Acts, 42 U.S.C. §§ 1983, 1985(3).

I. Common Law.

Any case involving the doctrine of executive or official immunity requires the court to resolve a sharp conflict between two important considerations: the protection of the individual citizen against damage caused by oppressive or malicious action on the part of public officers, and the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits based on acts done in the exercise of their official responsibilities.1

As to judicial, legislative, and executive officers, the test to determine the existence of immunity from suits for monetary recovery based on allegedly wrongful conduct is whether or not the officers were acting within the scope of their authority or in the discharge of their duties. The controversy has centered

332 F.2d 858
around how broadly "scope of authority" should be interpreted — i. e., would malicious acts be within the officers' scope of authority? Initially, the broadest interpretation of scope of authority was applied to judicial and legislative officers so as to protect them from civil suits to recover for actions taken by them in the exercise of their official functions, irrespective of the motives with which those acts were alleged to have been performed. By 1896 this broad interpretation had been carried over to heads of executive departments, provided the action had "more or less connection with the general matters committed by law to their control or supervision." Spalding v. Vilas, 1896, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780. After that time the doctrine of broad interpretation began to spread to subordinate officials, directly leading to the present state of the law.2 The modern approach to official immunity is exemplified by Judge Learned Hand's opinion in Gregoire v. Biddle, 2 Cir.1949, 177 F.2d 579, cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363. Judge Hand's oft-quoted analysis is as follows
"It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books." 177 F.2d at 581.

This statement of the law is made binding on us by the express approval afforded it by the Supreme Court in Barr v. Matteo, 1959, 360 U.S. 564, 571-72, 79 S.Ct. 1335.3 The Supreme Court clearly indicated that allegations of malice are not sufficient to prevent the application of executive immunity: "The fact that the action here taken was within the outer perimeter of petitioner's line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint * * *." 360 U.S. at 575, 79 S.Ct. at 1341. The

332 F.2d 859
requirements that the act be within the outer perimeter of the line of duty is no doubt another way of stating that the act must have more or less connection with the general matters committed by law to the officer's control or supervision, and not be manifestly or palpably beyond his authority. See Spalding v. Vilas, supra at 498 of 161 U.S., 16 S.Ct. 631

In Barr v. Matteo, supra, the Court also held that the rank of the officer, in itself, does not determine the applicability of the doctrine:

"We do not think that the principle announced in Vilas can properly be restricted to executive officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy.
"To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted — the relation of the act complained of to `matters committed by law to his control or supervision,\' Spalding v. Vilas, supra, 161 U.S. at page 498, 16 S.Ct. at page 637 — which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits." 360 U.S. at 572-74, 79 S.Ct. at 1340, 1341. (Emphasis added.)4

There is another limiting factor — the nature of the duties. It is often said that the officer must be performing a "discretionary function." In Ove Gustavsson Contracting Co. v. Floete, 2 Cir.1962, 299 F.2d 655, cert. denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050, Judge Medina explained what this requirement actually means:

"There is no litmus paper test to distinguish acts of discretion * *, and to require a finding of `discretion\' would merely postpone, for one step in the process of reasoning, the determination of the real question — is the act complained of the result of a judgment or decision which it is necessary that the

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