James E. White v. Leon Taylor, Etc., Clell Harrell , 959 F.2d 539 ( 1992 )

POLITZ, Chief Judge,

dissenting:

I would not reject the jury’s verdict. Taylor’s training was Chief Harrell’s responsibility. It is undisputed that the plaintiff White was not properly processed and was jailed overnight at the instruction of Chief Harrell. He was released when a qualified officer came on duty. The Chief’s actions were intentional and illegal under Mississippi law. The jury found against Chief Harrell based on his admission that he was “wrong” in retaining Taylor on the police force because Taylor did not possess the minimum qualifications for a law enforcement officer mandated by Mississippi law. “[Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (emphasis added). The majority opinion grants Chief Harrell the cloak of qualified immunity notwithstanding his knowing and intentional violations of the nondiscretionary state laws designed, in part, to protect the constitutional rights of members of the public.

The majority acknowledges that the qualified immunity inquiry focuses on May 29, 1987; however, a subsequent decision, County of Riverside v. McLaughlin, — U.S. -, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), is used to contradict a prior decision by this court in this very case.¹ In a prior panel opinion, we affirmed the district court’s refusal to dismiss this case on qualified immunity grounds. White v. Taylor, No. 88-4064 (5th Cir. June 15, 1989) 877 F.2d 971 (unpublished opinion). Accepting as true the facts alleged in White’s complaint, we found:

There is no question that the Fourth Amendment rights Taylor allegedly violated were clearly established and recognizable under the circumstances. Only the reasonableness of Taylor’s actions in the situation is disputed.... [White’s] complaint alleges facts that, although ancillary to the confrontation between White and Taylor, allow the court to make an informed judgment that it cannot hold that Taylor’s actions measured up to objectively reasonable, clearly established Fourth Amendment standards.

Id. at 6-7 [877 F.2d 971 (table) ]. The jury found against Chief Harrell based on his failure to supervise Taylor, as well as for the Chief’s own participation in the constitutional violation.

At trial White presented evidence to substantiate the factual allegations relied upon by the prior panel.² According to Taylor’s own testimony, when White asked why he was being placed in jail, Taylor responded, “I told him it was his mouth that got him in there.”³ Taylor testified that it was the Chief’s decision to put White in jail for the night. Chief Harrell admitted that he gave this order knowing that only misdemeanor charges against White were possible and that the detention was therefore illegal as a matter of state law. Miss.Code §§ 99-3-17, 99-3-18. Chief Harrell also admitted that he intentionally and knowingly violated state law by employing Taylor. See Miss.Code § 45-6-11.

“[T]he Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention.” Gerstein v. Pugh, 420 U.S. 103, 126, 95 S.Ct. 854, 869, 43 L.Ed.2d 54 (1975). Nowhere in the Gerstein analysis, even when viewed through the informing McLaughlin prism, is it suggested that local police can, on tangents of their own, intentionally violate state law designed to protect constitutional rights. According to McLaughlin, the Court’s “purpose in Gerstein was to make clear that the Fourth Amendment requires every State to provide prompt determinations of probable cause, but that the Constitution does not impose on the States a rigid procedural framework. Rather, individual States may choose to comply in different ways.” McLaughlin, 111 S.Ct. at 1668. The only question in Gerstein is whether a State’s established rules pass constitutional muster.⁴ It cannot be taken as authority for the proposition that local police may craft impromptu rules for individuals who merely “mouth off.” The McLaughlin court recognized as unconstitutional “delay motivated by ill will against the arrested individual, or delay for delay’s sake.” 111 S.Ct. at 1670. We earlier recognized the distinct possibility that White’s detention was motivated by ill will.⁵ Based on the trial evidence, the jury obviously so found. I would honor the jury’s verdict and therefore I respectfully DISSENT.

1 . The majority avoids our prior opinion on the ground that the unreasonable detention claim against Chief Harrell appeared subsequent to the opinion. The prior panel, however, addressed not only Taylor’s immunity, but Harrell’s as well. White v. Taylor, No. 88-4064, pp. 5-6 (5th Cir.1989) [877 F.2d 971 (table)] (unpublished opinion). The jury found that Chief Harrell was responsible both for his failure to supervise Taylor and for his own intentional actions. As I view it, the prior panel’s ruling speaks to the issue in this case.

2 . If anything, White presented better evidence than the alleged facts relied upon in the prior opinion. We earlier questioned whether White had been informed of the charges against him: "It is not clear from the complaint or record whether he was formally charged with disorderly conduct, merely told when arrested that he was going to be charged with disorderly conduct, or neither.” Unpublished Opinion at 2 [877 F.2d 971 (table) ]. The defendants admitted at trial that White was never informed of the charges.

3 . Taylor testified that he did some paperwork for the charges but that the paperwork was not done in White’s presence and was not shown to him. The defendants admitted that White was never informed of any formal charges. Indeed, Taylor admitted that he had not decided on charges until after White had been locked in the jail cell. White testified that he had no idea what he had done wrong and repeatedly asked why he was being placed in jail.

4 . The majority opinion quotes Gonzalez v. Tilmer, 775 F.Supp. 256 (N.D.Ill.1991), as authority that Gerstein was ambiguous. The Gonzalez officials, however, followed proper procedures.

5 . In our prior opinion we observed: "Taylor’s failures to follow normal procedures cast doubt on the validity of White’s arrest and detention; they may have suggested to the district court that Taylor himself doubted the propriety of the arrest.” Unpublished Opinion at 8 [877 F.2d 971 (table) ].