Wanger v. Bonner

• Decision Date: 14 July 1980
• Docket Number: No. 78-2683,78-2683
• Citation: 621 F.2d 675
• Parties: Niles B. WANGER and Shirley Wanger, Plaintiffs-Appellees, v. Ray BONNER, Individually and in his official capacity as Sheriff of DeKalb County, Defendant-Appellant, Robert W. McCullough, etc., et al., Defendants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 675

621 F.2d 675

Niles B. WANGER and Shirley Wanger, Plaintiffs-Appellees, v. Ray BONNER, Individually and in his official capacity as Sheriff of DeKalb County, Defendant-Appellant Robert W. McCullough, etc., et al., Defendants.

No. 78-2683.

United States Court of Appeals Fifth Circuit.

July 14, 1980.

Rehearing Denied Sept. 5, 1980.

E. Christopher Harvey, Wendell K. Willard, Decatur, Ga., for defendant-appellant.

Albert Horn, J. M. Raffauf, Atlanta, Ga., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, CHARLES CLARK and THOMAS A. CLARK, Circuit Judges.

CHARLES CLARK, Circuit Judge:

Niles and Shirley Wanger brought this action under 42 U.S.C. § 1983 against the former sheriff of DeKalb County, Georgia, Rayburn L. Bonner, and two of his deputies, Robert W. McCullough and Charles T. Bell, alleging that the defendants had violated their fourth amendment right to be free from unreasonable searches and seizures. The parties tried the case before a jury, which found for the deputies but returned a verdict in favor of the Wangers against Bonner and awarded them twenty-five thousand dollars in compensatory damages. On this appeal Bonner contends that the verdict rendered against him must be reversed. He asserts that under this court's decision in Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979) (on rehearing), he could not be held liable for the acts of his deputies in which he did not participate; that he could not be held liable for establishing the policies pursuant to which the deputies acted where the jury found that the deputies had not violated the plaintiffs' constitutional rights; and that the Wangers failed to establish a violation of their fourth amendment rights since the deputies acted pursuant to a valid warrant. We affirm.

I.

On January 3, 1975, McCullough and Bell, deputy sheriffs in the DeKalb County Police Department, went on duty at midnight. Their assignment was to attempt to locate persons for whom arrest warrants were outstanding. Deputy McCullough had several months experience serving arrest warrants, but Deputy Bell had been assisting him for only a month. Pursuant to his usual practice, Deputy McCullough selected approximately twenty to twenty-five arrest warrants from among the outstanding warrants held by the sheriff's office, which warrants he and Deputy Bell would attempt to serve during their eight hour shift. Among the warrants that he selected on the night of January 3, 1975, was a bench warrant issued by a Forsyth County state court judge authorizing the arrest of Jimmy Leon Payne for his failure to appear to answer the misdemeanor traffic offense of driving under the influence of alcohol. The back of the warrant and the transmittal letter from the Sheriff of Forsyth County attached to the warrant both listed Payne's address as "306 Candler St." in Atlanta, Georgia, a location in DeKalb County. The warrant did not provide a description of Payne and the spaces on the form transmittal letter that provided for a description were blank.

Shortly after 1:30 A.M. the two deputies arrived at 306 Candler Street, the location of a house in which the Wangers had resided for three years. While Deputy Bell watched the rear of the house, Deputy McCullough knocked on the locked door to a screened porch on the front of the house. He aroused Niles Wanger, whose identity was not known to him at that time, and informed him that he was a police officer. Wanger came out of the house in his robe and addressed Deputy McCullough through the screen door to the porch. When McCullough advised him that he had an arrest warrant for a Jimmy Leon Payne of that address, Wanger denied that he was Payne and stated that no such person resided at that address. The events that followed were disputed by the parties.

McCullough testified that he then informed Wanger that he would have to produce some identification to verify that he was not Payne and that they would have to search the house to ascertain whether Payne was present. Wanger unlocked the screen door to allow McCullough to enter the porch. McCullough requested Bell to join him and went onto the porch. Wanger and his wife testified that Wanger then told McCullough that he would get some identification from inside and asked him to wait on the porch because his wife was not dressed. McCullough denied that Wanger had mentioned his wife's nudity. When McCullough attempted to follow Wanger through the front door to the house, Wanger, who is five feet nine inches tall and weighs one hundred thirty-seven pounds, pushed McCullough, who is six feet tall and weighs two hundred twenty-five pounds, back across the threshold onto the porch, telling him that he could not come into his house. McCullough, apparently using some minimal force, proceeded into the house and instructed Deputy Bell to check Wanger's identification while he searched the house for Payne.

Bell and Wanger entered the Wangers' bedroom where Wanger established his identity by producing a driver's license, a pistol permit, and some other piece of identification. Bell then noticed a loaded revolver on a bedside table, which he confiscated to prevent its use by Wanger, who was becoming increasingly angry and belligerent. While Bell was checking Wanger's identification, Deputy McCullough had undertaken a cursory, but thorough, search of the house. He proceeded through the house without incident until he reached the back bedroom occupied by the Wangers' two-year old child. The deputies' initial attempts to arouse the residents of the house and their entry into the house had awakened and alarmed the child. Shirley Wanger, who was nude at the time, went into the bedroom to comfort her child. When McCullough reached the bedroom during the course of his search he shone his flashlight into the unlit room prior to entering, thereby momentarily exposing Shirley Wanger's state of nudity. Wanger, who could see McCullough from his location in a front bedroom, called out that his wife was not dressed and was in that room. McCullough told Wanger to bring her some clothes or a blanket, stating that he had to search the room. Once she was attired in a blanket, he finished searching the room.

After completing his search of the house Deputy McCullough arrested Wanger on charges of simple battery and obstructing an officer in the performance of his duty based on Wanger's attempts to prevent him from entering the house. Bell and McCullough then carried Wanger to the DeKalb County jail, together with his revolver, which they informed him he could obtain after his release by proving his ownership.

At trial the testimony of the witnesses for both sides was in substantial dispute concerning the general behavior and demeanor of Wanger and the two deputies once they entered the house. The Wangers testified that the deputies used profane, abusive language and refused to show them the arrest warrant upon which they based their authority to conduct the search. Bell and McCullough, however, testified that they were polite and that Wanger continually cursed them, attempted to thwart their efforts to execute the arrest warrant, and threatened that he would cause them to lose their jobs.

In August, 1975, the Wangers filed suit against Deputies Bell and McCullough and DeKalb County Sheriff Rayburn Bonner under 42 U.S.C. § 1983, alleging that the deputies' actions in attempting to serve the arrest warrant for Jimmy Leon Payne had violated their fourth amendment right to be free from unreasonable searches and seizures. The Wangers also alleged that the deputies had acted under Sheriff Bonner's control pursuant to policies and procedures that he had established. In response Deputies Bell and McCullough asserted a qualified immunity defense, arguing that they had acted in good faith on the basis of their reasonable belief that Jimmy Leon Payne could be found at 306 Candler Street due to the address listed on the bench warrant. Sheriff Bonner defended on the ground that he could not be found to be vicariously liable for any improper acts by his deputies and that the deputies had not violated the fourth amendment's prohibition of unreasonable searches and seizures.

From the jury's verdict in favor of Deputies Bell and McCullough but against Sheriff Bonner, awarding the Wangers twenty-five thousand dollars in compensatory damages, Bonner brought this appeal. He urges that he cannot be held vicariously liable for the actions of his deputies, that the deputies did not violate the Wangers' fourth amendment rights since they acted pursuant to a valid arrest warrant, and that he cannot be held liable for any policies that he may have adopted since the jury's verdict in favor of the deputies constituted an implicit finding that their actions did not violate the Wangers' fourth amendment rights. The Wangers did not appeal the verdict in favor of the defendant deputies.

II.

Defendant Bonner contends that the district court's pretrial order, the evidence presented by the parties, and the district court's instructions to the jury all limited the issue of his liability to the question whether he was vicariously liable for the conduct of Deputies Bell and McCullough. Noting this court's decision in Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979) (on rehearing), that vicarious liability was not a viable theory of recovery in a § 1983 action, Bonner asserts that the district court erred in not granting his motion for a judgment notwithstanding the verdict. The Wangers respond that at all stages of this litigation one of the bases on which they have argued that Bonner should be liable was his promulgation of the policies concerning the serving of arrest warrants pursuant to which the deputies acted. They argue that by presenting evidence that the deputies acted in accordance with policies implemented by Sheriff Bonner, they demonstrated a causal connection...