Shillingford v. Holmes

• Decision Date: 15 January 1981
• Docket Number: No. 80-3502,80-3502
• Citation: 634 F.2d 263
• Parties: Charles V. SHILLINGFORD, Plaintiff-Appellant, v. Van E. HOLMES, etc., et al., Defendants-Appellees. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 263

634 F.2d 263

Charles V. SHILLINGFORD, Plaintiff-Appellant, v. Van E. HOLMES, etc., et al., Defendants-Appellees.

No. 80-3502

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

Jan. 15, 1981.

D. Douglas Howard, Jr., New Orleans, La., for plaintiff-appellant.

Van E. Holmes, pro se.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN and RANDALL, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge.

Because 42 U.S.C. § 1983 is not a general tort statute but imposes liability only for rights secured by the Constitution and laws of the United States, it does not grant a cause of action for every injury wrongfully inflicted by a state officer. We here consider the distinction between those personal injuries for which redress is allowable under Section 1983 and those, however wrongful, for which a remedy must be sought under state tort law.

A group of four or five New Orleans policemen was engaged in apprehending a boy on the street during a Mardi Gras parade. One of the policemen, Mr. Holmes, saw Mr. Shillingford, a tourist, photographing the incident. Shillingford was holding the camera to his face. Holmes struck the camera and Shillingford with his nightstick, destroying the camera, smashing it into Shillingford's face and lacerating his forehead. Mr. Shillingford was not involved in the arrest incident and did not interfere with the police in any fashion.

Seeking compensatory and punitive damages, Shillingford brought this action against the policeman alleging that the officer, while acting under color of state law, deprived him of federal constitutional rights, violating 42 U.S.C. § 1983. The district court found that the policeman's conduct was wholly inappropriate and that the defendant had been suspended from the police force for a period of days. However, the court held that the blow lacked the brutal force necessary to engender a constitutional deprivation. Finding that the policeman's actions did constitute a legal violation of constitutional dimension, we reverse the judgment of the district court and remand for a determination of damages.

"The first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.' .... Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Baker v. McCollan, 443 U.S. 137, 138 & 146, 99 S.Ct. 2689, 2692 & 2695, 61 L.Ed.2d 433, 439 (1979).

Physical abuse by police under color of state law may in some circumstances constitute a constitutional deprivation allowing recovery of damages under Section 1983. Jones v. Hildebrant, 432 U.S. 183, 189, 97 S.Ct. 2283, 2287, 53 L.Ed.2d 209, 214 (1977) (White, J., dissenting); Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970). The right to be free of state-occasioned damage to a person's bodily integrity is protected by the fourteenth amendment guarantee of due process. Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980). The right has also been premised on the fourth amendment guarantee of "(T)he right of ... people to be secure in their persons," made applicable to the states by the fourteenth amendment. Jenkins v. Averett, 424 F.2d at 1232.

A law enforcement officer's infliction of personal injury on a person by the application of undue force may deprive the victim of liberty without due process of law. Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). But see Polite v. Diehl, 507 F.2d 119, 126 (3d Cir. 1974) (Kalodner, J., concurring in part and dissenting in part) (simple battery by a policeman does not violate the fourteenth amendment or Section 1983).

Yet the district court was correct in recognizing that not every personal hurt by a state officer constitutes a violation of the fourteenth amendment. Baker v. McCollan teaches that some state-agent-inflicted injury is so minor as to occasion only a tort claim, not a constitutional invasion. In determining whether the state officer has crossed the constitutional line that would make the physical abuse actionable under Section 1983, we must inquire into the amount of force used in relationship to the need presented, the extent of the injury inflicted and the motives of the state officer. If the state officer's action caused severe injuries, was grossly disproportionate to the need for action under the circumstances and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under Section 1983. Hall v. Tawney, 621 F.2d at 613; Johnson v. Glick, 481 F.2d at 1033.

The degree of force exerted and the extent of physical injury inflicted that together amount to a constitutional deprivation must, of course, be determined by the facts of a given case. Baker v. McCollan permits no bright line to be drawn but ineluctably requires case-by-case balancing. See Johnson v. Glick, 481 F.2d at 1032-33; Pritchard v. Perry, 508 F.2d 423, 426 (4th Cir. 1975). Actions permissible in controlling a riotous mob or in dealing with a life-threatening situation might weigh differently when taken against a peaceful pedestrian.

The facts found by the trial court are subject to appraisal only under the clearly erroneous rule, Fed.R.Civ.P. 52. Whether these facts amount to constitutional deprivation is a question of law that may be assayed anew upon appeal. "As to legal conclusions reached by the district court, we are not bound by the 'clearly erroneous' rule and we can make independent determinations." Ayers v. Western Line Consolidated School District, 555 F.2d 1309, 1315 (5th Cir. 1977), vacated on other grounds sub nom. Givhan v. Western Line Consolidated...