Palmer v. Hall

• Decision Date: 29 July 1974
• Docket Number: Civ. A. No. 2912.
• Citation: 380 F. Supp. 120
• Parties: Quinton David PALMER, By next friend, Marie Palmer, Plaintiff, v. Roger HALL et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

380 F. Supp. 120

Quinton David PALMER, By next friend, Marie Palmer, Plaintiff, v. Roger HALL et al., Defendants.

Civ. A. No. 2912.

United States District Court, M. D. Georgia, Macon Division.

July 29, 1974.

COPYRIGHT MATERIAL OMITTED

Kyle Yancey, Atlanta, Ga., for plaintiff.

Lawton Miller, Jr. (City Attorney), Macon, Ga., for defendants.

OWENS, District Judge:

Quinton David Palmer, a thirteen year old Macon child, brought this lawsuit against Macon Police Officers Roger Hall and Larry Foster, Macon Mayor Ronnie Thompson and the individual aldermen¹ of the City of Macon for his being unconstitutionally and unlawfully shot by Police Officer Hall on February 18, 1973. Neither the plaintiff nor any defendant demanded trial by jury; on April 11, 1974, the case came on for a non-jury evidentiary hearing. The evidence, the contentions of the parties and the law having been considered, this now constitutes the court's findings of fact and conclusions of law. Rule 52, Federal Rules of Civil Procedure.

A. Basis of Complaint — 42 U.S.C. § 1983

The court has jurisdiction under 28 U.S.C. § 1343(3)² of plaintiff's complaint which is founded on 42 U.S.C. § 1983, a statute of law enacted by the Congress of these United States, which provides:

"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."

The Fourteenth Amendment to the Constitution of the United States provides:

". . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis added).

This amendment made the guarantees of the Constitution of the United States applicable to each of the States of these United States and gave Congress "the power to enforce provisions" thereof "against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it . . . Congress, in enacting . . . what is now 42 U.S.C. § 1983, meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." (citations omitted). Monroe v. Pape, 365 U.S. 167, 172³ (1961). An official may abuse his position and subject himself to liability under this section by acting beyond the bounds of his lawful authority under state law — outside the scope of his office; he may likewise subject himself to liability by acting within the scope of his office in an arbitrary manner, grossly abusing the lawful powers of his office. Scheuer v. Rhodes, 416 U.S. 232⁴ (1974). Illustrative of the wide range of factual situations encompassed by Section 1983 are the facts which were before the Court in Scheuer v. Rhodes. There the Governor of Ohio, the Adjutant General, the Assistant Adjutant General, the President of Kent State University and certain officers and enlisted members of the Ohio National Guard were sued for the deaths of three students that occurred during the well-publicized episode at Kent State University. The complaints were described by the Court as follows:

"In essence, the defendants are alleged to have `intentionally, recklessly, wilfully and wantonly' caused an unnecessary deployment of the Ohio National Guard on the Kent State campus and, in the same manner, ordered the Guard members to perform allegedly illegal actions which resulted in the death of plaintiffs' decedents. . . . Fairly read, the complaints allege that each of the named defendants, in undertaking such actions, acted either outside the scope of his respective office or, if within the scope, acted in an arbitrary manner, grossly abusing the lawful powers of office." Id. at ___, 94 S.Ct. at 1686, 40 L.Ed. 2d at 96.

B. Lawful Powers of Defendant Officials

The defendants — Mayor Thompson, the named Aldermen of the City of Macon, and Police Officers Hall and Foster — are each officials of the City of Macon, a municipal corporation created by the legislature of the State of Georgia. 1822 Ga.Laws p. 112, as amended, repealed and superseded — present charter 1927 Ga.Laws p. 1283, as amended. The City of Macon like all other municipal corporations, is a creature of the legislature of this State.⁵ It, like all other municipal corporations, does not possess inherent powers; instead, it possesses only such powers as are expressly delegated by the legislature. Koehler v. Massell, 229 Ga. 359, 191 S.E.2d 830 (1972). Evidence of express delegation by the legislature is found in the charter of each municipality including the City of Macon or in the general laws of the state. City of Macon v. Walker, 204 Ga. 810, 51 S.E.2d 633 (1949); Town of McIntyre v. Baldwin, 61 Ga.App. 489, 6 S.E.2d 372 (1940). Like the City of Macon, the defendant city officials do not possess inherent powers, powers that usually flow from and are a part of the office that they each occupy. They too derive their authority from the charter of the City of Macon or the general laws of this state.

The legislature of the State of Georgia has not enacted general laws giving any general powers to either Mayors or Aldermen of Georgia municipal corporations. See 1933 Georgia Code Annotated Title 69 Municipal Corporations. The powers and authority of the defendants Mayor and Aldermen are therefore derived from the charter of the City of Macon.

Police power, while it is an attribute of sovereignty and an inherent power of national and state government because the existence of government as well as the social order, security, life and health of the individual citizen depend upon it, is a power possessed by Georgia municipal corporations only if, where and to the extent there has been an express grant by the state. DeBerry v. City of LaGrange, 62 Ga.App. 74, 8 S.E.2d 146; Garrison v. City of Cartersville, 62 Ga.App. 85, 8 S.E.2d 154. The police power of the City of Macon and its officials is thus as found in its charter.

The office of policeman likewise carries with it no inherent power. Indeed, the office was unknown to the common law and is purely a statutory creation. Burke v. State, 76 Ga.App. 612, 47 S.E.2d 116 (1948). Like the defendants Mayor and Aldermen, the defendant police officers therefore also possess only such power as is given them by the general laws of this state or by the charter of the City of Macon.

The charter of the City of Macon constitutes the mayor and council consisting of fifteen (15) Aldermen as the legislative department of the city government. While they generally have full power and authority to do certain enumerated things ". . . and for the preservation of the peace and good order of the same," Section 23, their police power is specifically set forth in Section 74, to wit:

"Sec. 74. Organization and powers of the police department; bonds or collateral; forfeiture.

"The police force of the city shall consist of a chief of police and such other officers and men as the mayor and council may by ordinance prescribe, but such chief, officers and men shall be subject to removal as herein provided. The compensation of all the police force shall be prescribed by ordinance of the mayor and council, but no extra pay or allowance or cost shall ever be awarded them. They shall have power and authority to arrest all persons in said city guilty of disorderly conduct or public indecency, all persons violating the ordinances of the city, and all persons violating or attempting to violate any law of this State, or committing or attempting to commit any crime, and to confine them in the city prison or in the common jail of Bibb County, to be brought before the recorder's court for trial or commitment; provided that all persons desiring to give bail for their appearance before such court in bailable cases, shall be allowed to do so." (emphasis added).

Section 77 provides:

"The police department shall be under the immediate supervision and control of the police committee of council and the fire department under the immediate supervision and control of the fire committee of council. In the discretion of the mayor, such committees may be constituted and function separately or may be consolidated into a joint committee. In the event separate committees are determined upon, each of said committees shall consist of five members of council, appointed by the mayor. In the event a joint committee shall be determined upon, it shall consist of seven members of council, appointed by the mayor, but one of such members shall be designated as the fire committee chairman and another as the police committee chairman. (Ga.L.1927, Act No. 119, § 56; Ga.L.1939, Act No. 16, §§ 8, 9; Ga.L.1956, Act No. 51, § 1)"

and Section 79 as applicable here provides:

"The following civil-service rules and regulations for the regulations, government, and control of the said two departments shall be of force:

* * * * * *

"Rule 16. The mayor shall be the ranking head and chief in command of both departments."

The general law of this state determines the method, scope and limitations of the arrest power given to police officers of the City of Macon by Section 74.

1933 Georgia Code § 27-207 provides:

"An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be failure of justice for want of an officer to issue a warrant."

In providing for the...