Scott v. Vandiver

• Decision Date: 16 March 1973
• Docket Number: No. 72-1760,72-1761.,72-1760
• Citation: Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973)
• Parties: Luther G. SCOTT, Jr., Appellee, v. Harold VANDIVER, Sheriff of Abbeville County, South Carolina, and George M. McMahan, Supervisor of Abbeville County, South Carolina, Appellants. Luther G. SCOTT, Jr., Appellee, v. Ray McMAHAN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

476 F.2d 238 (1973)

Luther G. SCOTT, Jr., Appellee, v. Harold VANDIVER, Sheriff of Abbeville County, South Carolina, and George M. McMahan, Supervisor of Abbeville County, South Carolina, Appellants.

Luther G. SCOTT, Jr., Appellee, v. Ray McMAHAN, Appellant.

Nos. 72-1760, 72-1761.

United States Court of Appeals, Fourth Circuit.

Argued December 5, 1972.

Decided March 16, 1973.

Joseph E. Major, Greenville, S. C. (J. D. Todd, Jr., Greenville, S. C., and William P. Greene, Jr., Abbeville, S. C., on brief), for Harold Vandiver and George McMahan.

C. Rauch Wise, Greenville, S. C., for Ray McMahan.

Karl L. Kenyon and G. Ross Anderson, Jr., Anderson, S. C., for Luther G. Scott, Jr.

Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges.

BUTZNER, Circuit Judge:

Harold W. Vandiver, George McMahan, and Ray McMahan appeal¹ from a judgment holding them liable under 42 U.S.C. § 1983 (1970)² for an assault against Luther G. Scott, Jr. They assert that the district court should have required Scott to exhaust available state judicial remedies before proceeding under § 1983; that the trial judge made erroneous findings of fact and conclusions of law; that they were not acting "under color of" state law; that neither Harold W. Vandiver, the county sheriff, nor George McMahan, the county supervisor, was responsible for the acts of James Hunter and Ray McMahan; and that the damages awarded by the district court were excessive. We affirm on all issues except the judgment against supervisor George McMahan.

The defendant's threshold contention that the district court should have required Scott to exhaust state remedies is without merit. A § 1983 claimant does not have to exhaust state judicial remedies before pursuing his federal cause of action. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

I

Although the evidence conflicted on many points, there was ample testimony to support the trial judge's acceptance of the following version of the facts, and we are bound by his findings under Rule 52 of the Federal Rules of Civil Procedure. On July 23, 1970, the Calhoun Falls police reported to Sheriff Vandiver that a woman had been shot within his jurisdiction. Before going to the house where the shooting occurred, the sheriff drove to the county farm to pick up some bloodhounds. While there, he requested two county employees, James Hunter and Ray McMahan, to assist him in his investigation. Hunter and McMahan got in McMahan's truck and followed the sheriff's vehicles.

Not far from the scene of the reported shooting,³ Scott was walking along the side of the road, going from his home to his brother's home. Scott did not resemble the person suspected of the crime, but when Hunter and McMahan saw him, they stopped and told him to get in the truck with them to go to the sheriff. They did not identify themselves or explain the authority for their orders. While the two men were talking to him, Scott saw a gun on the seat of the truck and immediately began to run. Hunter and McMahan both jumped out of the truck to chase him, and Hunter fired his gun in Scott's direction.

As Scott fled, he fell and severely injured his shoulder, but he regained his feet and reached his brother's house. His brother came out of the house armed with a shotgun and asked the men why they were shooting at Scott. Without explanation, the men returned to the truck and sped off towards the house where the sheriff was investigating the crime they had erroneously suspected Scott of committing. They told the sheriff of their encounter with Scott, and he, realizing that Scott was not a suspect, sent one of his deputies to find out what had happened.

The evidence justifies the district court's finding that Ray McMahan was a joint participant with Hunter. Likewise, it supports the finding that Hunter and Ray McMahan used "excessive force and oppression in the attempted unlawful apprehension and arrest of Scott." The record negates the common law defenses of good faith and probable cause, which under other circumstances may be available in § 1983 actions. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1973).

II

The defendants contend that Scott is not entitled to recover under § 1983 because Hunter and Ray McMahan were not acting "under color of" law when they assaulted Scott. Hunter insisted that he was exercising his right as a citizen when he discharged his pistol and gave chase to Scott.

With respect to this issue, the evidence supported the district court's findings: the supervisor and sheriff had a long-standing agreement that county employees would assist the sheriff if he made a request through proper channels; Ray McMahan had previously assisted the sheriff on manhunts; the sheriff told Scott's relatives that Hunter and Ray McMahan were assisting him in response to his request; and neither McMahan nor Hunter was disciplined for the assault.

English common law, which remains the law of South Carolina unless changed by statute,⁴ authorized a sheriff to summon bystanders to assist him in apprehending felons. 1 Blackstone, Commentaries* 343; see also Sutton v. Allison, 47 N.C. 339, 341 (1855). The sheriff's authority is implicitly recognized in S.C.Code Ann. § 53-199 (1962),⁵ which empowers a deputy sheriff to call out a posse comitatus to assist in arresting suspected violators of the law. It is apparent that this statute supplements, rather than supersedes, the common law. To hold otherwise would irrationally confer on a deputy sheriff powers greater than the sheriff's.

The trial court's findings and South Carolina law support the conclusion that Hunter and Ray McMahan were temporary state law enforcement officers when they assaulted Scott. Their status brings them squarely within § 1983. Borrowing from cases⁶ construing a related criminal statute, the Supreme Court has ruled that the phrase "under color of" state law embraces "misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. . . ." Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961). Monroe held that the victim of police misconduct had a § 1983 claim against the police who violated his federally secured rights. Other federal courts have followed Monroe's interpretation of § 1983 by awarding compensation to the victims of unlawful police assaults.⁷

It is immaterial whether the status of Hunter and Ray McMahan was created directly by the state's posse comitatus law or whether it arose out of the sheriff's custom of enlisting county employees to assist in manhunts. A custom may support a § 1983 claim if it has "the force of law." Adickes v. Kress & Co., 398 U.S. 144, 162, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Here the sheriff's common law powers to summon bystanders infused his custom of using county employees in manhunts with the force of law.⁸

III

Sheriff Vandiver asserts that he is not responsible for the assault committed by Hunter and Ray McMahan because the doctrine of respondeat superior should not be applied to actions brought under § 1983. We need not, however, examine the applicability of the doctrine⁹ because it is not essential to the sheriff's liability. As shown in Part II, the sheriff acted under color of South Carolina law when he requested Hunter and Ray McMahan to assist him in the manhunt, and they in turn acted under color of state law when they assaulted Scott. It is appropriate, therefore, to look to South Carolina law to ascertain the sheriff's responsibility for the actions of his subordinates. 42 U. S.C. § 1988 (1970).¹⁰ The Court of Appeals for the Sixth Circuit recently relied on state law to sustain an award of punitive damages against a Tennessee sheriff for an assault committed by his deputy. McDaniel v. Carroll, 457 F.2d 968, 969 (6th Cir. 1972); accord Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971) (compensatory damages); Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955) (compensatory damages). Other examples of the extension of state law to § 1983 actions are familiar: federal courts apply state statutes of limitations to § 1983 claims, O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914), Almond v. Kent, 459 F.2d 200, 203 (4th Cir. 1972); state law insures the survival of a § 1983 cause of action, Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); a federal court may resort to the state law of torts to supply the elements of the § 1983 claim, Jenkins v. Averett, 424 F.2d 1228, 1231 (4th Cir. 1970); and defenses recognized by state common law may be raised to contest a § 1983 claim, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Moreover, state law is available to a § 1983 claimant under the doctrine of pendant jurisdiction without the necessity of showing diversity of citizenship. Jenkins v. Averett, 424 F.2d 1228, 1231 (4th Cir. 1970); Whirl v. Kern, 407 F.2d 781, 793 (5th Cir. 1969).

The Supreme Court of South Carolina has expressly ruled that a sheriff's responsibility for the acts of his deputy is not dependent on the doctrine of respondeat superior. Instead, liability is based on the deputy's position as the sheriff's representative for whose official acts the law holds the sheriff strictly accountable. Rutledge v. Small, 192 S.C. 254, 6 S.E.2d 260, 262 (1939). The sheriff's liability is clearly defined in Teasdale v. Hart, 2 Bay 173, 175 (S. C.1798):

"Every sheriff is liable for the acts of all his officers, and all persons acting under him in every subordinate capacity; and they on their parts, are bound to conduct themselves in the like manner as the sheriff himself ought to do, if he was present; and he is not to be let off, on account of the blunders, misconduct, or errors of any of his inferior agents."

This rule, promulgated in...