Ocasio v. Bryan, 16,391

• Citation: 6 V.I. 43
• Decision Date: 13 March 1967
• Docket Number: No. 16,391,16,391
• Parties: CRUZ OCASIO, SUZANNA SANTANA and ROSE L. E. THOMAS, Appellants v. ETHELBERT BRYAN, OLGA BAILEY and SAMUEL CAINES, Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

6 V.I. 43

CRUZ OCASIO, SUZANNA SANTANA andROSE L. E. THOMAS, Appellants v. ETHELBERT BRYAN, OLGA BAILEY andSAMUEL CAINES, Appellees

No. 16,391

United States Court of Appeals Third Circuit

Argued February 3, 1967

Filed March 13, 1967

See, also, 374 F.2d 11

Action by plaintiffs for damages against three police officers of the Virgin Islands under Civil Rights Act of 1871. The District Court of the Virgin Islands, Walter A. Gordon, J., entered judgment dismissing the action, and plaintiffs appealed. The Court of Appeals, Freedman, Circuit Judge, held that section 2 (b) of the 1954 Revised Organic Act of the Virgin Islands which prohibits the bringing of a tort action against the Government of the Virgin Islands or against any officer or employee in his official capacity without the consent of the Legislature, did not apply to a civil rights action for damages against a police officer in his individual, private capacity.

Judgment reversed and cause remanded.RONALD H. TONKIN, Esq. (Young, Isherwood and Bruno), Christiansted, St. Croix, Virgin Islands, for appellants

PETER J. O'DEA, Esq., Assistant Attorney General, Charlotte Amalie, St. Thomas, Virgin Islands, for appelleesBefore STALEY Chief Judge, MARIS and FREEDMAN, Circuit Judges

FREEDMAN, Circuit Judge

OPINION OF THE COURT

The court below dismissed without prejudice the action for damages brought by appellants against three police officers under the Civil Rights Act of 1871 (42 U.S.C. §§ 1983, 1986) on the ground that § 2(b) of the 1954 Revised Organic Act of the Virgin Islands (Act of July 22, 1954, ch. 558, 68 Stat. 497, 1 V.I. Code Annot. CII, 48 U.S.C. § 1541 (b)) forbids the bringing of the action without the consent of the Virgin Islands legislature. The court below based its decision on the canon of statutory construction that a later statute should prevail over an earlier one. Ocasio v. Bryan, 5 V.I. 677, 261 F.Supp. 409 (D.V.I. 1966).

[1] The court below erred in its conclusion and the dismissal of the action will be reversed. The Virgin Islands is an unincorporated territory of the United States,¹ and the provisions of the Civil Rights Act are expressly made applicable to violations of civil rights "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory."² The court below believed, however, that because an action under the Civil Rights Act is one which sounds in tort,³ § 2(b) of the Revised Organic Actof the Virgin Islands had, for that territory, superseded the absolute remedy granted by the Civil Rights Act. Section 2(b) provides: "The government of the Virgin Islands . . . shall have the right to sue by such name and in cases arising out of contract, to be sued: Provided, That no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature constituted by this Act." (1 V.I. Annot. CII, 48 U.S.C. § 1541(b)).

[2] Appellants urge that the effectiveness of the Civil Rights Act should be maintained in the Territory of the Virgin Islands by construing it as having impliedly granted permission to one whose civil rights are violated to sue the Government of the Virgin Islands. We need not consider the merits of so attenuated an indication of legislative intention, for we believe that § 2(b) of the Revised Organic Act of the Virgin Islands, rightly construed, does not apply to a civil rights action for damages against a police officer in his individual, private capacity.

[3, 4] Section 2(b) was intended to bar tort actions against the Government of the Virgin Islands without its consent. It therefore provides against evasion of its policy of sovereign immunity in tort through the device of a suit against an officer or employee of the Government in his official capacity. See generally, Block, Suits Against Government Officials and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060 (1946). So construed, the provision envelopes government officers with immunity only where the suit is in reality against the Government itself, so that an adverse judgment would require a payment out of public funds, rather than a payment by an individual in his private capacity. See Hart and Wechsler, The Federal Courts and the Federal System (1953), p. 1177. The immunity provision of § 2(b) therefore does not extend to apolice officer who is sued for damages under the Civil Rights Act. For it is well settled that in such cases recovery runs against the officer himself in his private capacity and not against the Government. Indeed, the action for damages may not be maintained against a municipal corporation although it may proceed against a police officer of the municipality in his private capacity. See Monroe v. Pape, 365 U.S. 167, 187 (1961).⁴ Since an award of damages on a recovery under the Civil Rights Act does not directly affect the Government or the public treasury, the immunity of the Government from suit is no bar to the private action. The immunity provision of § 2(b) therefore does not apply to the present action and the consent of the Virgin Islands legislature is not a condition to its institution or maintenance.⁵

This interpretation of § 2(b) of the Revised Organic Act is in harmony with the policy of Congress. It is difficult to believe that in adopting what in effect is the constitution of the Virgin Islands the same Congress which provided a Bill of Rights taken from the Constitution of the United States⁶ would have intended at the same time silently to work the repeal of the ...