William Whirl v. C. v. (Buster) Kern and Fidelity and Deposit Company of Maryland

We review here, in an action for false imprisonment under Texas law1 and for the deprivation of civil rights under 42 U.S.C.A. § 1983,2 the custodial derelictions of a Texas sheriff.3 The sheriff is accused of wrongfully overextending to an inmate of his jail the hospitality of his hostelry and the pleasure of his cuisine. The jury in the court below found for the sheriff. We reverse.

The evidence in this case is largely undisputed. On September 9, 1962, the appellant, William Whirl, was arrested on suspicion of felony theft by the City of Houston police and placed in the Houston city jail. Two days later Whirl was transferred to the Harris County jail where he was booked, identified and deprived of the use of his artificial leg. On September 20, 1962, an examining trial was held and Whirl was bound over to the Harris County Grand Jury. Some weeks later the Grand Jury returned two indictments against him, one for burglary and one for theft.

On November 4, 1962, on the motion of the Harris County District Attorney, the indictments pending against Whirl were dismissed by a judge of the Criminal District Court of Harris County, Texas. The District Attorney had sought and obtained dismissal of the indictments on the grounds that the evidence against Whirl was "insufficient to obtain and sustain a conviction." The minutes of the court for November 5, 1962, recited the dismissal of the indictments, and a list of dismissals was then sent to the Sheriff's office, but the Sheriff who keeps the county jail testified that he was not apprised of these proceedings. As a result, Whirl languished in jail for almost nine months after all charges against him were dismissed, and was not restored to his freedom until July 25, 1963.

The breakdown in communication which led to Whirl's prolonged detention is not easy to trace. Documents are constantly transmitted among the courts, the District Clerk's office, the District Attorney's office, and the Sheriff's office, and recollection as to what happened in any particular instance is necessarily vague. Nevertheless, it is clear that the communication failure in Whirl's case occurred primarily between the District Clerk's office and the Sheriff's office.

Ordinarily, when charges are dismissed by a nolle prosequi, a member of the District Clerk's staff prepares a dismissal slip and forwards it to the Warrant Division of the Sheriff's office. Since the two offices are in the same building along with the jail, such communications are routinely made several times a day.

A record of the dismissals is also recorded in a journal or ledger kept in the District Clerk's office. This journal is sent to the Sheriff's office regularly, either separately or in conjunction with the dismissal slips, and receipt of the journal is acknowledged in writing by a sheriff's deputy. It is also customary for deputies in the Sheriff's office to make trips to the District Clerk's office in order to check the dismissal book themselves.

On the occasion following termination of charges against Whirl, dismissals had been rather numerous. As a result the Clerk's office prepared a list of cases which had been dismissed instead of the usual individual dismissal slip for each prisoner. This procedure, though rare, had been used before on similar occasions. Whirl's name was unquestionably included on that list, and the list was duly received by the Sheriff's office. Whirl's name was also entered in the dismissal book.

For some reason never adequately explained, the list of dismissals was not processed, and Whirl's freedom was lost in a shuffle of papers. Being too poor to raise bail, he was forced to remain in the courthouse lockup. Months later when attempts to set his case for trial prompted the District Attorney to check his file, it was discovered that all charges against him had been dismissed. Following his release, Whirl filed this suit.

Whirl brought his action against C. V. (Buster) Kern, the Sheriff of Harris County, Texas, and against the Fidelity and Deposit Company of Maryland, the surety on the Sheriff's official bond. Trial was to a jury. At the close of all the evidence, plaintiff moved for a directed verdict, and when his motion was denied, the case was submitted to the jury on special interrogatories as to negligence, contributory negligence, proximate cause and damages. The jury found that Kern was not negligent in detaining Whirl in custody. It also found that Whirl was not contributorily negligent in failing to seek his own release, and that he had suffered no damages as a result of his imprisonment. On this appeal, Whirl contends that the district court erred in not granting his motion for a directed verdict and in denying his motion for a new trial as to damages. Appellant argues that all the elements of his cause of action under the Civil Rights Act and under the Texas law of false imprisonment were established as a matter of law by the undisputed evidence, and that no fact issue apart from damages remained for the jury. He further argues that the jury's finding of no damages was contrary to the weight of the evidence and that the district court erred in instructing the jury to disregard the removal of appellant's artificial leg in assessing the extent of his injury.

Appellee, Kern, responds to these allegations of error by defending each act of the district court, and by arguing in the alternative that his actions toward Whirl were outside the scope of the Civil Rights Act. Kern maintains that the Act is aimed only at reprehensible conduct, and that his incarceration of Whirl was entirely free of improper motive or unlawful intent.4

Turning first to appellees' contention that the Civil Rights Act is limited in scope to reprehensible conduct, we note that some courts have so construed it. Hardwick v. Hurley, 7 Cir. 1961, 289 F. 2d 529, 530-531; Striker v. Pancher, 6 Cir. 1963, 317 F.2d 780, 784; Bargainer v. Michal, N.D.Ohio, 1964, 233 F.Supp. 270, 272-273; Raab v. Patacchia, S.D. Cal.1964, 232 F.Supp. 71-74; Beauregard v. Wingard, S.D.Cal.1964, 230 F. Supp. 167, 185; Selico v. Jackson, S.D. Cal.1962, 201 F.Supp. 475, 478. However, in our view the trend of recent decisions and the language of the Statute itself cannot be reconciled with so restrictive an interpretation.

Decisions of the Supreme Court have repeatedly noted that a complaint under the Civil Rights Act should not be dismissed for failure to state "a specific intent to deprive a person of a federal right." Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 484, 5 L.Ed. 2d 492, 505; Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, 296. The Civil Rights Act, we are told, should be read "against the background of tort liability that makes a man responsible for the natural consequences of his actions." Monroe v. Pape, supra. We do not find in this language or in the language of the Act itself any intimation that an invasion of constitutional rights unaccompanied by an improper motive lies beyond the reach of the Statute.

We are supported in this view by the recent decision of the Seventh Circuit in Joseph v. Rowlen, 7 Cir. 1968, 402 F.2d 367. In that case the Court of Appeals overruled some of its own earlier decisions, and in reversing a directed verdict for the defendant, disavowed the concept of improper motive:

"The formulae suggested at times for distinguishing causes of action which are cognizable in federal court from those which are not have usually required for a federal cause of action facts indicating flagrancy or an improper motive.

"One serious difficulty with such formulae is that there is nothing in the language of sec. 1983, or the fourth and fourteenth amendments as presently construed, on which to base such tests.

"Although the Supreme Court has found that certain defenses to a sec. 1983 cause of action exist, apparently by implication, they are defenses typical of tort causes of action." 402 F. 2d at 369.

Since Monroe v. Pape, supra, this Court has consistently avoided attaching any requirement of ulterior purpose or improper motive to the statement of a cause of action under 42 U.S. C.A. § 1983. Cf. Nesmith v. Alford, 5 Cir. 1963, 318 F.2d 110; Pierson v. Ray, 5 Cir. 1965, 352 F.2d 213, reversed on other grounds, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. Of course, when an essential element of the wrong itself under well established principles of tort law includes the demonstration of an improper motive as in malicious prosecution, Nesmith v. Alford, supra, 318 F.2d at 110, 121, 128 n. 34, then such principle becomes a part of sec. 1983. But the origin of such a requirement is in the common law of torts, not in the Civil Rights Act. In cases where tort law imposes no such burden upon the plaintiff, we are not persuaded that the burden should be judicially imposed under sec. 1983. We think it inconsistent to say in one and the same breath that a man is "responsible for the natural consequences of his actions," Monroe v. Pape, supra, 365 U.S. at 187, 81 S.Ct. at 484, 5 L.Ed.2d at 505, and that he is responsible only if his actions are improperly motivated.

This treatment of the improper motive requirement appears in keeping with the Supreme Court's position on the availability of defenses under the Civil Rights Act. As we read Pierson v. Ray, good faith and probable cause are defenses to an arrest not because of any language in § 1983, but because § 1983 must be read in a manner consistent with the background of tort liability.

We see no reason why the improper motive requirement should not also be dependent upon the common law of torts. Nothing in the Civil Rights Act or in decisions of the Supreme Court compels otherwise. In fact, the unmistakable trend of judicial decisions has been away from the encrustation of the Civil Rights Act with judicially created limitations. Whereas the Act was once rigidly limited to instances of systematic discrimination5 or physical brutality,6 in recent years courts have shown themselves increasingly willing to entertain suits under § 1983 where even improper motive is hard to find. Huey v. Barloga, N.D.Ill.1967, 277 F.Supp. 864; Quinnette v. Garland, C.D.Cal.1967, 277 F. Supp. 999; Delatte v. Genovese, E.D. La.1967, 273 F.Supp. 654; United States ex rel. Diamond v. Social Service Department, E.D.Pa.1967, 263 F.Supp. 971. Cf. Jobson v. Henne, 2 Cir. 1966, 355 F. 2d 129. In surveying this historical progression, we are, like the Seventh Circuit, impressed with the lack of justification for the improper motive requirement. We find no more basis for it in the language of the Act or in Supreme Court decisions than for the now rejected requirement of systematic discrimination. Cf. Cohen v. Norris, 9 Cir. 1962, 300 F.2d 24, 29-30. Certainly the one limitation is no more harmonious with the stated purposes of the statute than is the other. As said in Monroe v. Pape:

"It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies." (Emphasis added.) 365 U.S. at 180, 81 S.Ct. at 480, 5 L.Ed.2d at 501.

The Supreme Court's use of the term "neglect" and the expansive phrase "or otherwise" appears to us directly contrary to the "improper motive" requirement. Such language suggests that a federal forum is no less desirable for the inadvertent than for the malicious violation of constitutionally protected rights.7 Cf. Huey v. Barloga, N.D.Ill.1967, 277 F.Supp. 864.

Since Monroe v. Pape, federal courts have recognized that the Civil Rights Act could be read to mean that the purpose with which an unconstitutional act is perpetrated is not a prerequisite to a suit under § 1983. Hardwick v. Hurley, 7 Cir. 1961, 289 F.2d 529, 530. However, such a reading raised the spectre of a flood of litigation in the federal courts and was therefore promptly discarded. Hardwick v. Hurley, supra. Subsequent developments have shown that the purpose with which an unconstitutional act is done is highly relevant to recovery under § 1983, but relevant more as a source of defenses springing out of the common law of torts than as an obstacle to the statement of a § 1983 cause of action. Pierson v. Ray, supra. As a result, the court which originally uttered its apprehensions concerning a flood of litigation in the federal courts, has now given § 1983 its most expansive reading.8 Joseph v. Rowlen, supra. In finding as we do that improper motive is not a prerequisite to suit under § 1983, we do not anticipate any rush upon the federal courts.9 However, we say, with the court in Cohen v. Norris:

"If giving effect to this Congressional intent will `open the flood gates,' the remedy is not for this court to give § 1983 a narrower construction than Congress intended, but for Congress to decide whether it wishes to narrow the scope of the statute." 300 F.2d at 34.

Having dealt with the improper motive requirement at some length, we now turn to appellant's contention that he was entitled as a matter of law to a directed verdict on the question of liability. Appellant's argument in brief is that neither the common law of false imprisonment nor the Civil Rights Act requires that a jailer have actual knowledge that his prisoner's incarceration is contrary to law. Whirl contends that negligence is not an element of false imprisonment or of liability under § 1983, and that the "good faith" of a jailer is neither a defense to nor a justification for an unlawful restraint.

In evaluating these contentions, we are beaconed by the nascent case of Monroe v. Pape with illumination from Pierson v. Ray. In Monroe Chicago police officers without a search or arrest warrant took Monroe to a police station for interrogation, and while he was there, searched his home. In holding that the complaint alleged an invasion of § 1983 rights, Justice Douglas observed:

"In the Screws Case we dealt with a statute that imposed criminal penalties for acts `wilfully' done. We construed that word in its setting to mean the doing of an act with `a specific intent to deprive a person of a federal right.' [Screws v. United States, 325 U.S. 91, at 103, 65 S.Ct. 1031, 89 L.Ed. 1495]. We do not think that gloss should be placed on § 1979 which we have here. The word `wilfully' does not appear in § 1979. Moreover, § 1979 provides a civil remedy, while in the Screws Case we dealt with a criminal law challenged on the ground of vagueness. Section 1979 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." 365 U.S. at 187, 81 S.Ct. at 484, 5 L.Ed.2d at 505.

Seven years after Monroe the Supreme Court decided Pierson v. Ray, supra. Pierson involved the alleged false arrest of Negro and white clergymen for breach of the peace under a Mississippi statute when they attempted to use segregated facilities at an interstate bus terminal in Jackson, Mississippi. Our Court of Appeals had earlier decided that a police officer's good faith and his reliance upon a state statute subsequently declared invalid were not available as defenses under § 1983. In reversing, the Supreme Court said with reference to the proper interpretation of its decision in Monroe:

"* * * but this holding, which related to requirements of pleading, carried no implications as to which defenses would be available to the police officers. As we went on to say in the main paragraph, § 1983 `should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.' 365 U.S., at 187, [81 S.Ct. at 484, 5 L.Ed.2d at 505.] Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.

"We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983." Pierson v. Ray, supra 386 U.S. at 556, 87 S.Ct. at 1219, 18 L.Ed.2d at 296.

While the issue of Sheriff Kern's "good faith" in confining Whirl in prison was never in so many words presented to the jury, we do not involve ourselves in the semantics of whether or not a finding of non-negligence is tantamount to a finding of good faith. As we read Pierson v. Ray and Monroe v. Pape, neither good faith nor non-negligence can exculpate Kern from liability.

Pierson v. Ray and Monroe v. Pape were on their facts, false arrest cases and not false imprisonment cases. While it is certainly true that false arrest cases are often denominated actions for false imprisonment, i. e., Pierson and Monroe, false imprisonment deriving from an arrest and false imprisonment where no arrest has occurred are in substance quite different. Cf. Restatement of Torts, Second, §§ 35-45 and §§ 112-139. Admittedly, a person who is falsely arrested is at the same time falsely imprisoned, Fox v. McCurnin, 1928, 205 Iowa 752, 218 N.W. 499, yet "it is not necessary, to commit false imprisonment, either to intend to make an arrest or actually to make an arrest." 32 Am.Jur. 2d, False Imprisonment, § 2 (1968); Titus v. Montgomery Ward & Co., 232 Mo.App. 987, 123 S.W.2d 574; McGlone v. Landreth, 1948, 200 Okl. 425, 195 P.2d 268. "False arrest is merely one means of committing a false imprisonment." Harrer v. Montgomery Ward & Co., 1950, 124 Mont. 295, 221 P.2d 428, 433.

In ascertaining whether the Supreme Court intended the defense of "good faith" to apply to false imprisonment as well as to false arrest, we must not allow a superficial similarity between essentially different causes of action to dictate the purpose which the good faith defense is meant to serve in the context of the Civil Rights Act. There can be no quarrel with the fact that "good faith" in the circumstances of an arrest is a necessary and historically validated defense. As said by the Supreme Court in Pierson, "A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." 386 U. S. at 555, 87 S.Ct. at 1218, 18 L.Ed.2d at 295.

The reasons for this broad protection are clear. An arrest is often a stressful and unstable situation calling for discretion, speed, and on-the-spot evaluation. Quinnette v. Garland, C.D.Cal.1967, 277 F.Supp. 999, 1002. As a result, constabulary latitudinarianism is important, and peace officers are and must be endowed with privileges not accorded to ordinary citizens. In the words of the editors of the Restatement of Torts, Second:

"The additional privilege is given because the peace officer has a duty to the public to prevent crime and arrest criminals; the performance of these duties would be seriously impaired unless peace officers were given considerable discretion in their performance and protected from liability for the consequences of honest and reasonable mistakes." § 121, Comment (b) and (c) at 206.

Appellees urge that the above rule is their shield and protection. However, the breadth of a peace officer's privilege in an arrest situation is not necessarily the test of the breadth of a jailer's privilege in the context of a false imprisonment. There is no privilege in a jailer to keep a prisoner in jail beyond the period of his lawful sentence. Birdsall v. Lewis, 1936, 246 App.Div. 132, 285 N.Y.S. 146; Waterman v. State, 1957, 2 N.Y.2d 803, 159 N.Y.S.2d 702, 140 N.E.2d 551; Cohen v. State, 1965, 47 Misc.2d 470, 262 N.Y.S.2d 980, reversed on other grounds, 25 A.D.2d 339, 269 N.Y.S.2d 498; Weigel v. McCloskey, 1914, 113 Ark. 1, 166 S.W. 944; 46 A.L.R. 806. While a jailer cannot be held liable for errors in a warrant of commitment fair and valid on its face, Francis v. Lyman, 1 Cir. 1954, 216 F.2d 583; Peterson v. Lutz, 1942, 212 Minn. 307, 3 N.W.2d 489, it is also the law that where a prisoner is held in jail without a court order or written mittimus, the jailer is liable for false imprisonment. Garvin v. Muir, Ky.1957, 306 S.W.2d 256. The fact that the jailer is without personal knowledge that the prisoner is held unlawfully does not constitute a defense to an action for false imprisonment. Garvin v. Muir, supra; Ulvestad v. Dolphin, 1929, 152 Wash. 580, 278 P. 681; Great American Indemnity Co. v. Beverly, M.D.Ga.1956, 150 F.Supp. 134, 141. In fact, "An illegal imprisonment must be treated as a wrong from its very inception, and it matters not on what date knowledge of such illegality is acquired." Emanuele v. State, 1964, 43 Misc.2d 135, 250 N.Y.S.2d 361, 366.

The case at bar is not, as appellees would have us view it, a case of justifiable reliance upon a warrant of commitment valid on its face. Cf. Francis v. Lyman, supra; Peterson v. Lutz, supra. The sheriff relied on nothing10 and his actions were not informed actions. Nor is this a situation where the dismissal of an indictment by a grand jury still leaves questions for judicial determination. Cf. Lowry v. Thompson, 1936, 53 Ga.App. 71, 184 S.E. 891. Proceedings against Whirl were terminated by the actions of a court of competent jurisdiction. While not easily characterized, the case at bar seems to us closest to the situation where the jailer keeps a prisoner beyond the lawful term of his sentence. In such circumstance, as in the one before us, ignorance of the law is no excuse.

We do not read Pierson v. Ray as mandating otherwise. The instruction that § 1983 is to be read against the background of tort liability does not seem to us a directive that "good faith" is a defense to all actions under the Civil Rights Act. Rather Pierson impressed the common law of torts into the service of the Civil Rights Act, and thereby made "good faith" a defense to a suit under § 1983 only where it is also a defense "under the prevailing view [of tort law] in this country." 386 U.S. at 555, 87 S.Ct. at 128, 18 L.Ed.2d at 295.

We do not find any cases nor are we referred to any by counsel which provide that "good faith" is a defense to an imprisonment that is not only without valid process, but contrary to it. Nor do we believe as a matter of federal policy that such a defense should be available to a jailer in circumstances like those before us. The responsibility for a failure of communication between the courts and the jailhouse cannot justifiably be placed on the head of a man immured in a lockup when the action of the court has become a matter of public record. Ignorance and alibis by a jailer should not vitiate the rights of a man entitled to his freedom. A jailer, unlike a policeman, acts at his leisure. He is not subject to the stresses and split second decisions of an arresting officer, and his acts in discharging a prisoner are purely ministerial. Moreover, unlike his prisoner, the jailer has the means, the freedom, and the duty to make necessary inquiries. While not a surety for the legal correctness of a prisoner's commitment, Ravenscroft v. Casey, 2 Cir. 1944, 139 F.2d 776, cert. denied, 323 U.S. 745, 65 S.Ct. 63, 89 L.Ed. 596; DeWitt v. Thompson, 1942, 192 Miss. 615, 7 So.2d 529, he is most certainly under an obligation, often statutory,11 to carry out the functions of his office. Those functions include not only the duty to protect a prisoner, but also the duty to effect his timely release.

The central issue in this case is one of privilege, not of intent; one of law, not of fact. The tort of false imprisonment is an intentional tort. Restatement of Torts, Second, § 44. It is committed when a man intentionally deprives another of his liberty without the other's consent and without adequate legal justification. Roberts v. Hecht Co., D.Md.1968, 280 F.Supp. 639, 640; Browning v. Pay-Less Self Service Shoes, Inc., Tex.Civ.App.1963, 373 S.W. 2d 71 (no writ); 32 Am.Jur.2d, False Imprisonment § 1 (1968). Failure to know of a court proceeding terminating all charges against one held in custody is not, as a matter of law, adequate legal justification for an unauthorized restraint. Were the law otherwise, Whirl's nine months could easily be nine years, and those nine years, ninety-nine years, and still as a matter of law no redress would follow. The law does not hold the value of a man's freedom in such low regard.

The sheriff, of course, must have some protection too. His duty to his prisoner is not breached until the expiration of a reasonable time for the proper ascertainment of the authority upon which his prisoner is detained. We are not to be interpreted as holding that a sheriff commits an instant tort at the moment when his prisoner should have been released. However, in the present case what is or is not a reasonable time is not at issue. It may safely be said that Kern's ignorance for nine long months after the termination of all proceedings against Whirl was, as a matter of law, ignorance for an unreasonable time.

In the law of commercial transactions, it is common practice to hold that a person is on constructive notice of certain facts essential to the security of all who must deal with him. In such cases it is often said: "Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge." Flack v. First National Bank of Dalhart, 1950, 148 Tex. 495, 226 S.W.2d 628, 632. Likewise in the law of property, notice of a deed in a chain of title actually unknown to a purchaser and found in a musty and dusty tome of records in some recorder's office is the daily grist of judicial decisions. Cf. Farmers Mutual Royalty Syndicate v. Isaacks, Tex.Civ.App.1940, 138 S.W.2d 228, 231 (no writ). If constructive notice can be thus pressed into the service of property, can it not also be urged in the service of human liberty? We think that it can, and that a sheriff must be held to be on constructive notice of the judicial termination of all charges against one in his care and custody.

We hold that it was error for the trial court to submit this case to the