Baker v. McCollan

PETITIONER:Baker
RESPONDENT:McCollan
LOCATION:Vineville Presbyterian Church

DOCKET NO.: 78-752
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 443 US 137 (1979)
ARGUED: Apr 23, 1979
DECIDED: Jun 26, 1979

ADVOCATES:
A. W. Sorelle III
Douglas R. Larson – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – April 23, 1979 in Baker v. McCollan

Warren E. Burger:

The case is submitted.

We’ll hear arguments next in 752, Baker against McCollan.

Mr. SoRelle, I think you may proceed now.

A. W. Sorelle III:

Mr. Chief Justice, may it please the Court.

Respondent brought this Section 1983 action alleging a violation of Due Process under the Fourteenth Amendment of the Constitution.

The facts are basically uncontroverted.

Respondent was born December 8, 1949 and originally given the name Linny spelled L-I-N-N-Y, C-A-R-R-O-L-L, McCollon with an O-N.

He informally adopted the name in which he uses today in this proceeding with the different spelling of Linnie, middle name Carl, and McCollan with an A-N.

The date of birth significant only because later in by 1972 respondent had a Texas driver’s license identifying him as Linnie Carl McCollan and through error the birth date of December 8, 1948 was inserted and even though he knew of it did not correct it and therefore it became part of his assumed identity.

Warren E. Burger:

And whose date of birth was that?

A. W. Sorelle III:

No one that we know of, Your Honor.

These facts would not be particularly significant except for the remarkable coincidence and I say a coincidence because that’s all the record will support that respondent’s older brother whose true name was Leonard decided in 1972 to adopt the identical assumed name and went so far as to seek a duplicate driver’s license in the name of Linnie Carl McCollan.

Unfortunate, through some error of Department of Public Safety the same was issued and older brother Leonard had a driver’s license but identified him as Linnie Carl McCollan date of birth December 8, 1948.

All information is the same including the driver’s license number being identical but the only difference in the two driver’s license is being the photographs on the license themselves.

Then unfortunately, Leonard posing his —

Thurgood Marshall:

Did (Inaudible) save him?

A. W. Sorelle III:

Yes, sir.

Probably, I think you’re absolutely correct.

It would’ve said that duplicate on the one that Leonard had in any case, that you’re right, it would have (Inaudible) it.

But other than the duplicate words and the photograph, the identifying information was identical.

Leonard acting as Linnie was then arrested in October of 1972 on a drug violation was booked as Linnie Carl McCollan was released on bail as Linnie Carl McCollan signed all the papers that he signed as Linnie McCollan and then left to town presumably because his bonds been later surrendered the bond in sought to have a warrant issued for the missing Linnie Carl McCollan.

The Justice of the Peace dutifully issued a warrant for the arrest of Linnie Carl McCollan, a copy of which is in the appendix.

One significant item in this point, the warrant was issued on November 3, 1972.

This suit is against petitioner Baker who was sheriff of Potter County but he was not sheriff of Potter County up till this time.

In fact, certain events happened one in this case, one being the death of Sheriff Gaither, his predecessor.

Sheriff Baker was then appointed on November 28, 1972, newly in office.

Then the respondent becomes involved when on December 26, 1972,a Dallas police officer stopped the respondent for traffic violation reported the name and identifying information through their central office and was informed that there was a Potter County warrant outstanding for Linnie Carl McCollan.

He dutifully arrested him, took him to the station, a respondent protested that he wasn’t the man wanted and there’s no evidence of whether this was a unique statement but in any case the police officer did ask his superior to contact Potter County.

They compared the identifying information and as you might expect said no, this is the man, that’s the man we want with a warrant.

In December 30th, Potter County Deputy with a warrant went to Dallas, picked up respondent, returned him to the Potter County Jail, evening of December 30th.

A. W. Sorelle III:

Sheriff Baker against doing this action was brought — was not present at the jail at that time, had left the evening and was going to be gone over the New Year’s holidays and even though he had contact with his office received no notice of any protest by respondent that he was not the right man wanted.

Warren E. Burger:

And with this duplicate driver’s license, at what stage did that get into the hands of the person to whom it was not lawfully issued?

A. W. Sorelle III:

This was earlier in 1972.

I’m sorry I did not recall the precise date but I bet this issue at sometime in 1972.

Warren E. Burger:

Well then and by what?

Did the respondent Linnie Carl McCollan give it to his brother?

A. W. Sorelle III:

Mr. McCollan said in the trial that he didn’t know how his older brother came by the information.

It was demonstrated that the applicant for the duplicate license himself the applicant which would’ve been Leonard gave the specific identifying information.

Respondent admitted that his brother would have no way of knowing that he had an erroneous birth date on his driver’s license that he had not told him and he didn’t know how he knew this.

But in any case, there is no evidence in the record to support precisely how brother Leonard obtained the information.

Thurgood Marshall:

Another point, was he fingerprinted?

A. W. Sorelle III:

Yes, Your Honor.

The —

Thurgood Marshall:

Did they agree with the other thing?

A. W. Sorelle III:

No, sir, Your Honor, and this is the point that it’s being raised by respondents in this case.

When Leonard was arrested as Linnie Carl McCollan, he was fingerprinted and photographed.

He was arrested and both to answer the police — City Police Department then transferred to Potter County but Potter County also photographed and finger printed Leonard.

At the time they did not take and this is one of the points that respondent makes, they did not take fingerprints and photographs with them to Dallas when they picked him up.

They returned him and apparently did not compare the photographs at that time.

Immediately, on January 2nd, when Sheriff Baker arrived back to jail was informed that a man was contending that he was not the correct Linnie Carl McCollan.

He immediately investigated, compared the photographs and they had the arresting officer had kept the duplicate driver’s license that had been issued to Leonard for some reason or there was some problem with it and they brought respondent down from the jail.

The sheriff discussed it where the — asking whose picture was on there.

He said it was his brother Leonard.

The sheriff acted on his own to release him, arranged transportation back to Dallas.

Thurgood Marshall:

But if they sent that to Dallas, that’s all that have been avoided.

A. W. Sorelle III:

This is the assumption that it’s made.

We don’t know whether the photographs have been sent to Dallas certainly someone would have known sooner that the contention was real, he possibly wasn’t the person.

Our question personally whether — I don’t know whether police office in general has the authority to make this determination but in fact they were not since, so there was no comparison made until the second —

Thurgood Marshall:

Assuming the police officer sent fingerprints over the wire?

Isn’t that a common procedure?

A. W. Sorelle III:

I assume that is Your Honor.

I don’t know if there’s no particular record in this case about this.

But there was some statement they could’ve been mailed, they could’ve been sent to Dallas.

Yes, sir.

Warren E. Burger:

Well, does this particular sheriff’s office have the facilities for transmitting fingerprints by mail?

A. W. Sorelle III:

Well, by mail I don’t know if they do any telegraphic method.

It’s not in the record and I personally don’t know, Your Honor whether they do or not.

Thurgood Marshall:

This particular place had the fingerprints of both of them?

A. W. Sorelle III:

The place where he was ultimately held and released, yes, Your Honor.

Thurgood Marshall:

And couldn’t they have get into the officers when they went to Dallas?

A. W. Sorelle III:

Yes, sir.

Thurgood Marshall:

There were none to stop them from doing that one?

A. W. Sorelle III:

No, sir and we’re not — we’re certainly not contending there was.

Our initial position in this case is simply that we have not stated a violation of due process where there is arrest pursuant to a warrant that describes the individual in the warrant.

That the respondent’s position on this would be tantamount to suggesting that due process not only requires identification to a warrant but that the most efficient means of identification must be used or one cannot rely upon the warrant and it is our position that in this case, there’s the police officer has traditionally been held to the stand that he must have either a valid warrant and there’s no contention this warrant is not valid or rely upon probable cause.

Here, the arrest was supported arrest and confinement by a valid warrant in the name of respondent.

That respondent as in the case of anyone who is arrested and later acquitted was determined not to be the one who should’ve been arrested.

He was released in due course through the investigation.

So, the threshold question we believe the Fifth Circuit overlooked was whether there was in fact a violation of due process because there was in fact a warrant for their arrest.

The Fifth Circuit reasoned from the reversed side of the case by concluding that being demonstrated after the fact that he should not have been arrested therefore it was a false imprisonment, that false imprisonment is an intentional tort and under their own case of Bryan versus Jones, it can be read to suggest that the only thing necessary for this tort is that someone was in fact confined.

He was aware of his confinement and suffered injury by it.

However, even under Bryan versus Jones, there was a preliminary finding and that is that there was a confinement without any process and it may be that under Monroe versus Pape, we can presume intent to confine without process when there is in fact no process.

But it seems a little farfetched to presume intent to confine without process when there was in fact process naming the person arrested.

Second difficulty with the Fifth Circuit’s initial approach to the case is that they concluded that Sheriff Baker could be held responsible for the acts of his deputies and because it was necessary in this case to attribute the acts of the deputies to Sheriff Baker if he was to have liability.

They did so by simply suggesting that he is responsible for the acts of his deputies.

He authorized them to go so then in fact, he committed the confinement.

Again, we find it rather difficult to conclude that Sheriff Baker intended to confine the man when his first action upon learning that this particular man was confined was to investigate and release him.

And the only way we can get to Sheriff Baker on the confinement is to apply the doctrine of respondeat superior which we believe this Court should as well as in the city cases in Monell should extend your conclusion there that doctrine of respondeat superior should not apply to sheriffs either.

Respondents would take one further step and say that the sheriff in Texas is responsible for the acts of his deputies.

And he is statutory responsible for supervising his deputies and can be held as a surety for them but it would not be reasonable to use this is a basis for extending respondeat superior to the sheriff because then it would tend to make 1983 a variable statute depending on what state statutes happen to apply in any given jurisdiction.

A. W. Sorelle III:

The Fifth Circuit acknowledged that there might be some question here on respondeat superior so they then shifted their analysis to the sheriff and suggested that it should be the sheriff’s own acts or conduct.

The sheriff did not act affirmably in any way to confine or restrain respondent.

Therefore, they suggested that it was a failure to act, a failure to have implemented a policy of transmitting photographs and fingerprints which he himself said after the fact as a result of this, he investigated and determined that this would be a good policy.

William H. Rehnquist:

When you talk about respondeat superior, Mr. SoRelle, aren’t you ordinarily talking about the liability of the supervisor for the negligence of his employees and here as I understand it the deputies were simply carrying out the instructions of the sheriff, that wouldn’t be respondeat superior to say that the sheriff is liable if he directs one of his deputies to go and arrest somebody, would it?

A. W. Sorelle III:

No, Your Honor.

If he in fact he directed him to go arrest this particular person to what he authorized them to do to execute the warrant and I think it would be a little farfetched to suggest that he intended that they arrest the wrong man and that in authorizing a deputy to execute a warrant that he has then authorized them to misapply the process.

I understand your question and it’s probably so but we’re dealing here with the question of whether someone has committed intentional conduct and we — it appears to me that we are taking a question of whether intentional conduct has been committed and presuming that the conduct has been.

I understand fully the position or I think I do that specific intent to violate the statute may not be required but it always has seemed to it in the past that this Court has required at least there be some intentional conduct.

Thurgood Marshall:

That’s the point I’m worrying about.

If the sheriff said, it’s my policy, don’t check behind these warrants, go pick up whoever he is.

But that’s not this case here.

A. W. Sorelle III:

No, sir.

The sheriff certainly didn’t suggest that in all the evidence in this case indicates the sheriff, number one, was displeased with it.

He acted the only affirmative conduct shown in this case by sheriff has all been in ultimate good faith.

The moment he had noticed he acted to release him.

The moment he investigated, determined what caused it he acted to change the policy.

We raised also in our briefs the evidentiary question that this in effect should not in any circumstance be evidence of negligence because of the federal rule or procedure that states that you don’t use corrective action to prove the negligence of the initial action.

But our feeling is there is no intentional conduct directed toward depriving respondent of a federally protected right.

Byron R. White:

Suppose — I think it’s your position here is though that even no matter how negligent the sheriff might have been and then you say he wasn’t negligent at all, no matter how negligent he might’ve been 1983 just doesn’t reach that kind of conduct.

A. W. Sorelle III:

Well, not any level of negligence.

No, sir, I don’t think —

Byron R. White:

Well, it may not, not this maybe, but —

A. W. Sorelle III:

We are talking here about simple negligence because there was —

Byron R. White:

Well, suppose there was a failure to exercise a reasonable care here to ascertain whether they have the right man.

A. W. Sorelle III:

Yes sir.

And under those circumstances we would hold that 1983 does not reach that conduct a simple inadvertent failure to take some precaution unless, it reaches the level where there is a known duty and the failure to act could be come within the intentional disregard or deliberate and different standards that have been set out in some of the other cases.

Byron R. White:

Well, a known duty is the — the duty not to hold somebody without probable cause to believe he has committed a crime?

A. W. Sorelle III:

Yes, sir.

But that —

Byron R. White:

And would you say you should take reasonable care and to validate that duty?

A. W. Sorelle III:

Yes, sir.

I think and in that case where you’re relying on a warrant it is probably you should take reasonable statute to identify the man as being the man named in the warrant.

But the respondent —

Byron R. White:

Well, suppose there wasn’t those reasonable steps taken in this case?

A. W. Sorelle III:

Well, there is no evidence concerning the reasonableness of the steps taken.

Byron R. White:

Don’t say, just suppose there weren’t — I suppose that was conceded but there were not reasonable steps taken to identify the person.

A. W. Sorelle III:

And if there was known duty to take the steps then I think we may have that —

Byron R. White:

Well, I don’t know and that’s part of the question but you know you’re not supposed to arrest the wrong man.

A. W. Sorelle III:

Certainly.

Byron R. White:

And so, suppose there’s an unreasonable — there is a failure to take reasonable steps to identify the person you’re arresting?

Now, let’s just suppose there was an — a failure to take those kind of sentence?

A. W. Sorelle III:

Yes, sir.

Byron R. White:

Would you think that when 1983 would reach it or not?

A. W. Sorelle III:

I think this start is getting closer.

I think that should be part of plaintiff’s burden to show that there were not reasonable steps and under those circumstances I think if it reaches the level that you could suggest deliberate indifference, intentional disregard for your attempts to arrest a man, yes, sir.

If it is a simple negligence failure to advert something under without any knowledge of a preexisting problem there, it would be my position that that would be an extension of the 1983 beyond any holding of this Court in the past.

William O. Douglas:

Mr. SoRelle, can I —

A. W. Sorelle III:

Yes, sir.

William O. Douglas:

— test what you’re saying for minute?

The standard whether its deliberate indifference or negligence or intention or so forth, where do we look to see what that standard is?

Do we look to the constitutional violation that says you shouldn’t put a man in jail without a trail and so forth or do we look in 1983 which says in effect if there is a constitutional violation you may recover or do we look to the defense of good faith immunity?

There’s a sort of three different places that standard could be found.

Where do you say —

A. W. Sorelle III:

Yes, —

William O. Douglas:

— we’ll have to find out whether it’s negligence or deliberate indifference or what?

A. W. Sorelle III:

Well, I believe that we first look to the statute in 1983 to determine since that statute under which we were recovering to try to determine whether this requires intentional conduct.

William O. Douglas:

Well, but is there anything in 1983 on this subject at all?

It simply says that does not that if there’s a constitutional violation of first and of course injury has a remedy.

A. W. Sorelle III:

It says that one who subjects or causes one to be subjected.

This leaves open the question, I believe, of whether they were talking about whether you need active conduct, it implies subjects or causes one to be subjection my mind implies that someone must have done something and that therefore, I would feel that it would require some intent, some intentional act because and been going beyond it behind that, I think when we look at the congressional record of the debates, it is inconceivable to me that the drafters of this statute were in any way thinking of unintentional conduct.

A. W. Sorelle III:

The complete review, they were talking about crimes of deliberate failures to enforce the law, deliberate violations of person’s rights.

And so, I believe that the statute itself must some initial threshold determination must be made.

Thurgood Marshall:

Isn’t true that the “Sheriff’s Office” was the cause of this man being arrested, the cause of him being transported back to Potter and it cause from being held until the sheriff appear in the middle?

A. W. Sorelle III:

Well, —

Thurgood Marshall:

The “Sheriff’s Office”.

A. W. Sorelle III:

No, the sheriff’s office — the sheriff had nothing to do with issuing the warrant.

Thurgood Marshall:

I said the “Sheriff’s Office”.

A. W. Sorelle III:

No, sir.

And then the Sheriff’s Office had nothing to do with the issuance of the warrant in the name Linnie Carl McCollan.

That was issued by Justice of the Peace.

Thurgood Marshall:

Well, who told to Dallas to hold him?

A. W. Sorelle III:

Well, they — when a warrant is issued apparently they — this is communicated.

Thurgood Marshall:

Well, who told to Dallas to hold him?

A. W. Sorelle III:

Well, —

Thurgood Marshall:

Well, next, who went to get it?

A. W. Sorelle III:

Potter County Sheriff’s Office went to get it.

Thurgood Marshall:

Alright.

A. W. Sorelle III:

And certainly unquestionably they intentionally confined him.

Thurgood Marshall:

Right.

A. W. Sorelle III:

But they did not intentionally confine him without a warrant or without process in any fashion.

Thurgood Marshall:

But they are the ones that did deny him his right to freedom.

A. W. Sorelle III:

If you have a right to freedom, that’s unfettered without any ability to rely upon process.

Yes, sir.

It is my belief though that the police officer must be able in some fashion to rely upon process in the name of the person to be arrested and in fact, they did.

And in fact, they were procedures used to determine that he was their own man and he was in fact released by the same —

William O. Douglas:

That was on January 2nd, he got back to Potter County on December 30th?

A. W. Sorelle III:

December 30th in the evening and —

William O. Douglas:

And then didn’t he then protest that he was the wrong man and didn’t they then have fingerprints available right there?

A. W. Sorelle III:

Yes, sir, and they did not — the officers that were there did not compare it.

For Sheriff Baker as to say was not there —

William O. Douglas:

And at that point it was under the jurisdiction the Sheriff’s Office at least.

A. W. Sorelle III:

It was in the Sheriff’s Office unquestionably, yes, sir.

William H. Rehnquist:

In Texas, is it true as in most place I’ve observed that public offices aren’t really beehives of activity over New Year’s weekend?

A. W. Sorelle III:

Yes, sir and unfortunately this was the case in this office at that time and it is certainly that should not necessarily be a reason but the evidence indicated that the normal of the people weren’t there and it takes certain people to compare fingerprints and photographs and there were — the Sheriff was not notified of the man’s contentions and because immediately upon being so notified, they didn’t act to release him.

Thurgood Marshall:

(Inaudible)

A. W. Sorelle III:

Your Honor, if I might I would reserve the rest of my time for rebuttal.

Warren E. Burger:

Mr. Larson.

Douglas R. Larson:

Mr. Chief Justice, may it please the Court.

Warren E. Burger:

I’m not clear on the facts here yet either from the reading of the appendix and records or the argument, how did this unauthorized license get in the hands of driver’s license get in the hands of unauthorized person?

Douglas R. Larson:

Your Honor, I don’t know and I don’t believe my client knows.

It’s quite possible the record has several situations under which my client obtained driver’s license.

It’s quite possible that his brother may have stolen a copy of one of his several driver’s license.

In fact, if you read the cross-examination by them you’ll find that the plaintiff in this case and the trial court had several driver’s licenses and he’d prone as he was to lose them.

He applied for more and it’s quite possible, I would think that brother Leonard stole one of them but we don’t know and we have no way of knowing and my client has insisted from the very beginning that he doesn’t know how Leonard got his driver’ license.

I want to say one other thing.

This isn’t in the record but my client’s parents were functionally illiterate and the mistakes on his birth certificate were due to their illiteracy and nothing else.

He was told all during his life that his birthday was the date that’s on the driver’s license.

At least that’s my understanding of it and in addition to that, his name was misspelled because of mother then didn’t know how to spell very well.

Now, I believe this case is —

Potter Stewart:

Is his name Linnie?

Douglas R. Larson:

Yes, sir.

Potter Stewart:

And his brother’s name was Leonard?

Douglas R. Larson:

Yes, sir.

Potter Stewart:

And how was Linnie misspelled as Leonard or what?

Douglas R. Larson:

Well, he says that his birth certificate has L-I-N-N-E-Y on it not L-I-N-N-I-E.

Potter Stewart:

I see.

Douglas R. Larson:

That’s what his contention is.

I don’t think when Congress passed 1983, they passed the statute and back in.

I think that their — when they passed the statute they recognized that there were certain tort principles that were going to be engrafted on the statute.

And at the —

John Paul Stevens:

That’s long time ago, isn’t it?

Douglas R. Larson:

Yes, it was.

John Paul Stevens:

I think they have this kind of suit in mind at the time?

Douglas R. Larson:

Well, I believe that there were some questions before Congress whether or not Negroes were being properly treated by the law enforcement.

John Paul Stevens:

Well, wouldn’t you be here whether or not your client was a Negro?

Douglas R. Larson:

Yes.

But that doesn’t change the fact that the statute was — one that was originally passed.

I believe it was directed for the — against the southern states for their actions against Negroes.

John Paul Stevens:

Do you have a cause of action in the state courts of Texas?

Douglas R. Larson:

Yes, sir.

I believe we do.

John Paul Stevens:

Why didn’t you go there?

Douglas R. Larson:

Well, because I don’t like to try this kind of case is in the state courts of Texas, Your Honor.

The judges are not very favorable to this kind of cases there.

I have attempted to exercise the constitutional rights of several people in state courts and I have found some of the judges to be somewhat less than receptive or as receptive as they ought to be.

William H. Rehnquist:

This (Inaudible) of Potter County?

Douglas R. Larson:

Yes, sir.

When Congress passes the statute, this was not done in a vacuum.

It was done with the idea that there were some causes of action that were automatically going to be engrafted because of the development of the common law, we’re going to be automatically engrafted in 1983.

Now, this Court has already recognized in couple of cases in Pierson versus Ray, in Monroe versus Pape, false arrest case but I don’t think this Court has ever had before it a false imprisonment case and it issues and or a little different in that — in a false arrest case, you can use the defense of good faith.

But I don’t think that applies in a false imprisonment case.

John Paul Stevens:

Are you talking about an ordinary tort law?

William H. Rehnquist:

You’re talking about tort law?

Douglas R. Larson:

That’s correct.

Potter Stewart:

Aren’t you?

Douglas R. Larson:

That’s correct.

William O. Douglas:

I thought your theory was that this man had been deprived of his liberty without due process of law in violation of Fourteenth Amendment?

Douglas R. Larson:

That’s correct and I also believe that the Constitution requires that the sheriff in this case arrest only the persons that are actually warranted pursuant to the warrant just because he has a warrant it says, “Arrest Linnie McCollan.”

That doesn’t get him off the hook because he had the information which would’ve corrected the situation.

He had the fingerprints and the photographs —

William O. Douglas:

But those — that material didn’t do him any good when he sent his deputy over to Dallas to pick the man up.

Douglas R. Larson:

That’s right.

But he was under a duty, a constitutional duty to imprison only those that have — that are to be lawfully imprisoned.

Now, —

William H. Rehnquist:

Mr. Larson, are you saying that every case of false imprisonment or false arrest a common law tort is necessarily a constitutional violation?

Douglas R. Larson:

No, sir.

William H. Rehnquist:

Well, what’s the line?

Douglas R. Larson:

Well, there’s a lot of false arrest case that occurred between private parties and —

William H. Rehnquist:

Well, supposing a false arrest or false imprisonment by a state or a person acting under Colorado state law.

Douglas R. Larson:

Well, if there’s a — there’s an underlying constitutional requirement to effectuate liberty, yes.

William H. Rehnquist:

But that’s what I’m trying to ask you.

I mean, either — is every single official or false arrest or false imprisonment a violation of the person’s Fourth and Fourteenth Amendment rights?

Douglas R. Larson:

Yes.

Alright, I think it’s helpful that if we — when we study this case if we look at the law of torts because the law of torts gives us some guidance on how to establish these cases.

Pierson versus Ray and Monroe both teach us that the background of tort liability is to be used in helping to decide 1983 cases.

Now, as I understand it he’s saying that there’s no intent here under the common law false imprisonment.

The only intent that was required is the intent to imprison.

Well, there’s certainly is an intent to imprison here because the plaintiff was imprinted — imprison.

In addition to that, the common law and his — in a restatement of tort says that a warrant can be relied on to a certain point but the sheriff or the jailer has to use due diligence to determine whether or not a person he is arresting is the person he actually wants.

In this case, the sheriff had the fingerprints and the photographs of the right person but he made no effort until several days later to compare it.

And this is not clear in the record as to how the sheriff finally came around to — but in the plaintiff’s deposition —

Thurgood Marshall:

Well, don’t you have to have in the record?

Don’t you have to have in the record the fact that the sheriff had this before he arrested him?

Douglas R. Larson:

Yes, but he did have it yes sir.

Thurgood Marshall:

Is that in the record?

Douglas R. Larson:

Yes but he had the fingerprints.

Thurgood Marshall:

That’s in the record?

Douglas R. Larson:

Yes, sir.

And he had the photographs.

Thurgood Marshall:

In the record?

Douglas R. Larson:

That’s right, it’s in the record.

In fact, —

Potter Stewart:

And of brother Leonard?

Douglas R. Larson:

That’s correct.

And it would been easy for the deputies to take the pictures when they came from Potter County down to Dallas, it have been easy to compare it because they don’t even look alike.

Leonard and Linnie don’t look anything like.

In fact, I don’t —

Warren E. Burger:

In fact, may be so in fact but you have difficult time persuading me that that’s true on the basis of this appendix.

Douglas R. Larson:

Well, I understand that but —

Warren E. Burger:

But that it’s clearly different that these two are so clearly different.

One has glasses, the other doesn’t but sometimes all of us do that.

Douglas R. Larson:

Well, the Fifth Circuit concluded in its opinion that there were no — that they weren’t alike, that you could easily tell it.

But in addition to that we have the plaintiffs and the trial court telling he wasn’t the right one.

Warren E. Burger:

Now, you’ve described this in your brief and I’m still not clear on the relevance of it but you described it as a forged fictitious driver’s license since you’ve gone to that trouble to describe it that way.

What’s the significance of that fact to this case?

Douglas R. Larson:

Well, the Sheriff Baker’s predecessor in office took the driver’s license away from Leonard when he arrested.

His office did and they knew it was a phony driver’s license because they took it up.

They checked the Department of Public Safety and they’ve realized that it was a phony driver’s license but they made no effort to change anything.

They knew he was operating under some wrong name and they knew that one has driver’s license.

So, they took it up and they had Leonard’s picture on the driver’s license and but it was Linnie’s driver’s license not Leonard’s.

Thurgood Marshall:

But that wasn’t Sheriff Baker, it was his predecessor?

Douglas R. Larson:

Yes, sir but I’m not —

Thurgood Marshall:

And Sheriff Baker did not respond before his predecessor did, is it?

Douglas R. Larson:

No, and I’m not and I haven’t maintained that in the trial of this case, Your Honor.

I did not maintain that.

I said that the duty Sheriff Baker’s duty arose at the time that the fingerprints and the mug shots would’ve been mail to Dallas.

I can see that the arrest was — is justified under circumstances but the sheriff had to use due diligence to determined they have the right man.

The burden that someone is in jail and wants to get out shouldn’t be place upon the person who is in the jail, It was to be placed upon the person who’s causing to be there and that person is one who should be the person who has the duty to determine whether or not he is the one that he’s suppose to have.

And in this case, Sheriff Baker (Voice Overlap) —

Byron R. White:

Do you really think that’s where the burden is?

Douglas R. Larson:

Yes.

Potter Stewart:

In every time a person is in a jail or prison?

Douglas R. Larson:

If the person who is imprisoning, the plaintiff has the fingerprints and the mug shots, he has an obligation to check.

Potter Stewart:

(Voice Overlap) — well, I misunderstood you.

I thought you were stating the general proposition that the burden is on the custodian always as a general role to show the validity of the custody.

Douglas R. Larson:

That’s correct.

He’s under a duty to constantly check his authority for holding —

William O. Douglas:

I think this is true of every warden in a penitentiary.

Douglas R. Larson:

Yes, sir.

Potter Stewart:

That the presumptions against the custody of the people in this charge?

Douglas R. Larson:

The presumption is on him because the Constitution said he can’t deprive somebody without —

Potter Stewart:

Well, let’s assume that most people in the prisons of our country are there because of not everybody is there because they’ve been convicted in criminal courts on criminal charges and sentence to prison and yet you say the presumption is against the validity of their imprisonment?

Douglas R. Larson:

No, sir, I’m not saying the presumption is against the validity of their imprisonment but I’m saying that the duty is upon the jailer —

Potter Stewart:

To justify the imprisonment always?

The burden is on him?

Douglas R. Larson:

That’s right because the person incarcerated doesn’t have anyway to get access to the records.

He has to rely on the jailer.

The jailer is the one who has the control.

William H. Rehnquist:

Well, what if the warden about prison having 5,000 inmates takes a stroll through the athletic field and a prisoner yells at me, I’m wrongfully confined, I don’t belong here.

And does the warden have a duty thereupon to immediately suspend whatever else they plan to do for the day and go back and check the records on that particular man?

Douglas R. Larson:

Not immediately because he has the leisure by which he can go back and check on a daily basis.

He’s not in immediate duty to do it —

William H. Rehnquist:

But the same day he would have to check?

Douglas R. Larson:

Well, quite frankly, on our suspect that almost everybody in jails thinks they ought not to be there.

William H. Rehnquist:

I think so too.

Douglas R. Larson:

But yes, I think the Constitution requires a jailer to know the authority for a — whom we hopes and to be constantly checking and verifying it so that he can determine when his person is suppose to be released.

The duty — to place the duty on the person incarcerated would not make any sense because he has no access to the records and he has — no access to the key to let him out.

William O. Douglas:

Alright.

All you’re saying as I understand it is that if somebody files a petition for writ of habeas corpus says, I’m being detained without lawful authority unless the warden can show his authorities and tell to get out.

Douglas R. Larson:

That’s correct.

Potter Stewart:

Well, I thought the applicant of the plaintiff had the burden of proof?

Douglas R. Larson:

Yes, he does but all he has to show is —

Potter Stewart:

Because you he doesn’t you say.

Douglas R. Larson:

Yes.

Yes, I did.

I agree he has a burden.

He only has to show he’s incarcerated and that the prison for holding was unjust and that’s what he did in this case.

But then the burden switched, that’s (Voice Overlap) —

William O. Douglas:

Mr. Larson, he doesn’t even have the burden to show he was unjust.

He says I’m incarcerated.

Nobody has a right incarcerate me, period.

If he says that he gets out unless the warden comes in explain why he is there.

Douglas R. Larson:

No, the client in this case established that it wasn’t justified to hold him because the sheriff failed in his duty to determine they only have the right people.

William O. Douglas:

I understand but the word, I mean the sheriff who have meant his burden initially by saying, well I arrest him pursuant to a warrant but that’s all and then the burden shifted back to you and say, well, yes but you got the wrong man.

Douglas R. Larson:

Right.

But the common law says that you can’t rely and hold on a warrant.

You got to use all the information at your hands and use due diligence to be sure you’ve got the same one.

And for example just because we had two gentlemen named Warren Burger who were wanted for arrest —

Thurgood Marshall:

Well, I don’t —

Douglas R. Larson:

— and —

Thurgood Marshall:

–arrest my Chief Judge.

Douglas R. Larson:

No, offense intended.

William H. Rehnquist:

(Voice Overlap) the losing argue.

Douglas R. Larson:

Alright, I will change example to John Smith.

Let’s suppose we have two people named John Smith, one who had not committed a crime and one who had.

The person who’s executing the warrant would be under a duty to ascertain which John Smith he’s suppose to arrest.

Now, he may not be able to ascertain that until he gets him to the penitentiary or jail and checks out his records, or he may not have any way to check him out.

But he’s got to use all the information at his hand to be sure he’s got the right one.

You just can’t arrest somebody, anybody because their name have to be the same.

Imagine, there’s somewhere, there’s a warrant for Douglas Larson somewhere and — but I’ve done anything that I know of and I don’t think the sheriff ought to be able to arrest me.

Douglas R. Larson:

His got — he’s got to be sure he’s got the right one.

I suspect that almost everyone has a name somewhere there’s a warrant for it whether or not he is the one wanted or not.

Thurgood Marshall:

What I don’t understand is that you filed habeas corpus and you say, I am not the right man and warden files a capias and said, well, here is the instructions I got to put this man in jail.

I say to that if you don’t do something else you stay in jail.

Douglas R. Larson:

Yes but the claim is —

Thurgood Marshall:

So, there is some burden on you?

Douglas R. Larson:

That’s right the plaintiff did in this case.

Thurgood Marshall:

That’s all because the particular time to say (Voice Overlap).

Douglas R. Larson:

I understand, but plaintiff did in this case.

The plaintiff did in this case.

He showed the sheriff had the fingerprints and the photographs of the right person.

Thurgood Marshall:

(Voice Overlap) would he show that.

He showed that in the lawsuit, didn’t he?

Douglas R. Larson:

That’s right.

Thurgood Marshall:

Well, he didn’t show that while he was being held, did he?

Douglas R. Larson:

No, he couldn’t — he didn’t have access to the records.

Thurgood Marshall:

What did he say?

Douglas R. Larson:

He says, I’m not the one, there’s a mistake.

Thurgood Marshall:

And that’s all he says?

Douglas R. Larson:

Well, it’s inadmissible because of the — because the —

Thurgood Marshall:

He doesn’t admit it?

Very seldom that when you pick up a guy, he said, yes, I’m the name you’re looking for.

Isn’t that very seldom?

Douglas R. Larson:

I would suspect that’s true but that doesn’t relieve a person who places him in jail the burden of determining that he has the right person.

Potter Stewart:

Well, Mr. Larson, is it now your claim or was it in your complaint that this arrest was not made on probable cause?

Douglas R. Larson:

I’m not complaining about the arrest.

I’m complaining about the false arrest.

Potter Stewart:

Well, the arrest was what led to the custody and it was the arrest made on probable cause or not in your submission?

Douglas R. Larson:

The arrest was made pursuant to a warrant.

The sheriff testified that the standard was that (Voice Overlap) —

Potter Stewart:

No, I think my answer — my question could be answered yes or no and then so what you wish but I — is it part of your case that the arrest was not made on probable cause?

Douglas R. Larson:

No.

Potter Stewart:

Do you concede that it was —

Douglas R. Larson:

Yes.

Potter Stewart:

— made on probable cause?

Douglas R. Larson:

If the Court would look at the record, you would say that when I asked the jury when I submitted my interest to the jury my question for the jury was, did the sheriff make a reasonable ask, did he reasonably make a determination as to whether or not he had a lawful authority to hold the plaintiff?

Now, there’s another issue is to when that matter taking place.

I submit that United States mail over take perhaps 24 hours for the photographs and fingerprints to be mailed from Potter County down to Dallas.

I would concede up to that point of time that we have no case.

It’s only after the sheriff (Voice Overlap) —

Potter Stewart:

All we know in this talk is there being two people, both named Linnie McCollan one guilty of an offense and the other not all that talk is really — there’s nothing to do with probable cause, does it?

Douglas R. Larson:

No.

I’m not complaining about the fact that the plaintiff was arrested.

Potter Stewart:

You’re not saying this was an invalid arrest?

Douglas R. Larson:

No.

Potter Stewart:

Nor that the — therefore that the ensuing custody at least for a short time was not valid?

Douglas R. Larson:

That’s correct.

Warren E. Burger:

At what point after the arrest to this become unlawful?

Douglas R. Larson:

Well, the sheriff testified that the standard is —

Warren E. Burger:

Never mind what the sheriff said.

In your case here when did the arrest which you have just conceded was made on probable cause under a warrant when after that arrest did the custody become unlawful?

Douglas R. Larson:

Well, that was a jury question and we never got in answered, Your Honor.

The question in my mind is, it’s probably 24 hours or enough time to allow the sheriff of Potter County to mail the fingerprints and the warrant to Dallas and I would assume that would take 24 hours.

It also could occur at a different time.

The sheriff said there is also a duty on the deputies who left Potter County and came to Dallas to take the fingerprints and mug shots with him but they didn’t do it.

Now, the jury could decide which one of those terms is more reasonable.

William O. Douglas:

Mr. Larson, is there also the third alternative?

I don’t see them ever referred to this when they got him back to Potter County that there was — and he was still protesting he was the wrong man to the person there then a duty —

Douglas R. Larson:

Yes, sir.

William O. Douglas:

— to compare.

William O. Douglas:

I mean, that’s different alternative as I understand your case.

Douglas R. Larson:

That’s correct.

Byron R. White:

But you’re saying at least you’re saying at some point in time after repeated the assertions that on — that you got the wrong man.

There was some kind of duty to look around at sometime.

Douglas R. Larson:

Well, I think the fact that the plaintiff makes an assertion that he want anyone’s help but I don’t think that’s determinable of the case.

I think the sheriff has a duty to be sure he’s got the right one and to exercise due diligence (Voice Overlap) —

Byron R. White:

And at some point he determined that he did not have the right?

Douglas R. Larson:

That’s right, it’s probably because a (Inaudible) the plaintiff in jail and said that’s not the man and went down told the sheriff, however the records are not clear on that.

John Paul Stevens:

Does the record show exactly what was said by respondent when he arrived at the jail?

Douglas R. Larson:

Yes, sir.

John Paul Stevens:

What did he say?

Douglas R. Larson:

He said, I’m not the one, there’s a mistake.

In fact, he —

John Paul Stevens:

Did he offer any explanation?

Douglas R. Larson:

He didn’t have any, he didn’t know.

Thurgood Marshall:

At that stage he didn’t know it was his brother that they want?

Douglas R. Larson:

He didn’t know whether it was his brother or not.

I guess he might have assumed that his brother has done something, then he was going to be arrested for but he didn’t know.

He was — throughout the entire course of this litigation, he has maintained he had no knowledge of what his brother was doing or not doing in Potter County.

To my way of thinking, the more interesting issue or more sexy issue, if you pardon my expression, in this case is whether or not the sheriff is entitled to the defense of good faith.

Well, in this case we have a sheriff who didn’t do anything.

In fact, he’s saying that I’ve got a right to be a fool and not in — I’ve got a right to be a fool and I don’t have any professional or statutory or constitutional responsibility.

To be sure, I’ve got the right man in jail.

William H. Rehnquist:

Is that an issue here Mr. Larson?

I thought the Court of Appeals said that it could be submitted to the jury upon retrial afterwards and you, you haven’t cross-petitioned?

Douglas R. Larson:

That’s true.

William H. Rehnquist:

Well, then why sexy, is it maybe is it here?

Douglas R. Larson:

Well, I think the issues that this petitioner find here covered that issue.

William H. Rehnquist:

Well, you’re not obliged to follow if he’s in error?

Douglas R. Larson:

I agree.

Douglas R. Larson:

But be that as it may, I still don’t believe that the sheriff is entitled of defense of good faith here.

I think good faith applies to a false arrest case like the one who’s in Pierson versus Ray where the sheriff — where the arresting officer has a right to rely on the — what he believes the law to be.

But in this situation, I think the sheriff’s duty is clear.

He has a duty to incarcerate only those persons which he has the lawful authority to do so.

William O. Douglas:

Mr. Larson, would it be correct if the issue really is whether the constitutional violation deprivation of liberty without due process of law.

Are you in effect arguing that the constitutional requirement of due process requires that when a man is arrested and protest his innocence in all arrest there is a part of the procedure that the police must follow is to check reliable sources to identify.

Douglas R. Larson:

That’s correct.

William O. Douglas:

So it simply it proceed the constitutional violation was the failure to accord due process which means a failure to check this man’s identity when it was appropriate to do so.

Douglas R. Larson:

That’s correct.

William O. Douglas:

So, if you don’t look at negligence or good faith or any of the stuff, do we?

Douglas R. Larson:

That’s my position.

Thurgood Marshall:

And what do you do with the bench warrant that’s authorized either pick up John C. Doe immediately?

The command, I think is the word.

Douglas R. Larson:

All warrant’s command I believe that’s correct.

Thurgood Marshall:

Well, what discretion did the sheriff have then?

Douglas R. Larson:

Well, I trust that he would do something to try to narrow down which John Doe —

Thurgood Marshall:

John Doe who lives at 2268 Appleway Drive, Amarillo, Texas.

Douglas R. Larson:

Well, —

Thurgood Marshall:

Zip code 17822.

Douglas R. Larson:

I would assume then that the sheriff is under the duty to arrest the John Doe that they find in that address.

Thurgood Marshall:

Well, could he get the same trouble he has here?

Douglas R. Larson:

No, sir.

Thurgood Marshall:

Why not?

Douglas R. Larson:

Unless there were some other information —

Thurgood Marshall:

Well, I mean couldn’t they issue bench warrant in this case and then jump in?

Are you certain he can issue a bench warrant when a man jumped there?

Douglas R. Larson:

Yes, sir but —

Thurgood Marshall:

In most states?

Douglas R. Larson:

I’m not complaining about the arrest, Justice Marshall.

I’m complaining about the failure of the sheriff to verify his information against the plaintiff who was there and his — or there is subject to his —

Thurgood Marshall:

And all the man says, I’m not the man then he has to go to work.

Douglas R. Larson:

I don’t think you even matters whether or not he says, I’m not the man or not.

I think the duty is still on the sheriff.

Thurgood Marshall:

To make sure that he is —

Douglas R. Larson:

To make sure he is the right one.

Thurgood Marshall:

That’s your position?

Douglas R. Larson:

That’s my position, yes, sir.

Warren E. Burger:

Even if he had — he signs a statement admitting that he is the man described on the warrant?

Douglas R. Larson:

Well, the common law saw that problem because that’s one of the exceptions to the rule that if the person who’s about to be arrested says that well, then he has a — then the person who effectuates the false imprisonment is let off the hook.

Potter Stewart:

Well, because that way he’s made sure he’s the man.

Douglas R. Larson:

That’s correct.

John Paul Stevens:

Do you think sheriff had a qualified privilege under the facts of circumstances of this case?

Douglas R. Larson:

No, sir.

John Paul Stevens:

Not at all?

Douglas R. Larson:

That’s correct.

John Paul Stevens:

Why?

Douglas R. Larson:

Because the duty is on him to verify that he has the right person and he didn’t do that duty nor did he issue any regulations in his department.

He didn’t do anything.

He merely just sat by and issued no regulations.

I think —

John Paul Stevens:

Not with the Governor of the state had any privilege if he acted as you suggest by doing nothing, fail to act?

I’m thinking about Rolinge against Sherman (ph)?

Douglas R. Larson:

Well, that’s a different case.

John Paul Stevens:

Governor different from a sheriff, is he?

Douglas R. Larson:

That’s correct.

I think the sheriff’s duties are clear.

John Paul Stevens:

Do sheriffs have a qualified privilege?

Douglas R. Larson:

A jailer or a sheriff has a certain duty.

John Paul Stevens:

My question was that —

Douglas R. Larson:

It involves knowing — it involves no discretion, the duty is clear.

Douglas R. Larson:

A governor has discretion.

He can make his decision based on several things and his failure to act or his agreement to act, I don’t think makes — get allows him to use good faith as a defense.

But a jailer, his duty is clear.

Imprison only the right person.

Check your information on a daily basis and be sure you don’t keep anybody longer than suppose to.

Byron R. White:

Well, the sheriff could arrest the wrong man on a warrant and where there’s probable cause like you say there is here.

He arrests him, puts him in his car, he takes him, as soon as he walks through the jail house door.

He’s violated the constitutional rights if he’s the wrong man.

Douglas R. Larson:

No, sir.

As soon I will give a sheriff a latitude of — a latitude in time, enough time to check whatever — what other information —

Byron R. White:

Well, then his duty isn’t to have only the right man, is it not?

Douglas R. Larson:

It’s after a reasonable time it is.

Byron R. White:

Well, alright, I’ll say set off to pick fingerprints and the answer came back yes, this is the right man.

And in fact, they made a mistake on the other hand.

Douglas R. Larson:

Well, —

Byron R. White:

Then what about the sheriff?

Douglas R. Larson:

Well that would be on his rim or responsibility (Voice Overlap) —

Byron R. White:

Well, alright, but he still got the wrong man so his duty isn’t just to have the wrong man, is it or to have the right man?

Douglas R. Larson:

The duty is to use as much information he has at hand.

Byron R. White:

That’s different.

William O. Douglas:

Isn’t even that, is it Mr. Larson, his duty to follow a procedure which will reasonably identify the man as being the right man, isn’t it?

Douglas R. Larson:

That’s correct.

William O. Douglas:

And you say didn’t follow the right procedure?

That’s what the Due Process Clause is all about, procedure.

Douglas R. Larson:

That’s correct.

Warren E. Burger:

At any time did he indicate that there might be some problem about his brother having created this identification problem?

Douglas R. Larson:

There’s nothing in the record to indicate that, Your Honor.

Unless, there’s no further questions thank you.

Warren E. Burger:

Mr. SoRelle.

A. W. Sorelle III:

Mr. Chief Justice, may it please the Court.

A. W. Sorelle III:

Respondent’s position boils down to this that the Due Process Clause now has a new recognized federal right and that being that if a man who’s been previously arrested, no warrant for that man may be issued or exercise without using finger prints and photographs to identify the subsequent man.

Potter Stewart:

I didn’t understand that Mr. Larson to be saying that.

I thought he conceded the validity of the arrest.

A. W. Sorelle III:

(Voice Overlap) but he suggest that as a matter of due process that reasonableness of identity must include using fingerprints and photographs under these circumstances.

Potter Stewart:

Not for the original arrest as I understood Mr. Larson.

A. W. Sorelle III:

Well, Your Honor may I submit that due process then should not require that at any stage in this proceedings during this period of time simply because if plaintiff respondent in this case is going to demonstrate a — an unreasonable method of identification then he should’ve approach it by showing that the method used was unreasonable.

I’m not suggesting that the corrective action instituted by the sheriff should have been used.

Thurgood Marshall:

Mr. SoRelle, isn’t one of the complaints that the sheriff have been out celebrating New Year’s Eve, he may have been turn loose right away?

A. W. Sorelle III:

No sir, I don’t think that was suggested —

Thurgood Marshall:

Well, and the record show that as soon as the sheriff was made aware of the facts he turned the man loose.

A. W. Sorelle III:

Absolutely, and it is our position that this is one of the reasons why the sheriff in this case should not have been held liable under state —

Thurgood Marshall:

He could’ve come in during the holiday and take a look at his job.

A. W. Sorelle III:

Yes sir, and he did — he had telephone contact one of his deputies obviously failed to —

Thurgood Marshall:

Well, I would say to you —

A. W. Sorelle III:

— advise him.

Thurgood Marshall:

— the more contact you get in with the jail the more trouble you get in.

A. W. Sorelle III:

Certainly but he had no notice that this man was arrested and we’re talking here of according to respondent about an intentional tort that he intended to arrest to this man and —

William O. Douglas:

Your brother Mr. Larson, we’re not really talking about the arrest anymore and it seems to me that the complaint is rather the procedure is eradicate and you change the procedure but if your man is set up being over the weekend had been in Mexico for two weeks presumably the man would stay in jail for two weeks until the sheriff get back and you made precisely the same argument as long as he found out he let him out.

A. W. Sorelle III:

No sir.

I’m — the only point I was making —

William O. Douglas:

What’s the difference between three days and 13 days?

A. W. Sorelle III:

Well, the point is that some place in here, this is a personal action against Sheriff Baker.

Somewhere in here there should be a showing that the sheriff made that —

William O. Douglas:

Well, he didn’t make adequate procedures for identifying people who have been arrested.

A. W. Sorelle III:

Acted erroneously yes, sir.

But I — it is my position that the procedures examined should be the procedures used and not the procedures not used if we’re going to treat it as a tort.

William O. Douglas:

Well, that’s right and those procedures if the sheriff had been gone for three weeks under those procedures, this man ought to stay in jail for three weeks.

A. W. Sorelle III:

I don’t believe so.

I think the evidence also shows that on coming back they would’ve also routinely process his — the new photographs and ID made at the time (Voice Overlap) —

William O. Douglas:

Well, if you say this why didn’t they do as soon as they picked him up and brought to move to —

A. W. Sorelle III:

Well, I think the only testimony was that the ID man was not on duty during that period himself.

It was a matter that they were apparently shorthanded and didn’t have a man on duty during that weekend.

And I believe that’s the answer in those.

Our position is that there were procedures.

They in fact worked in this case, the problem being that there was a short delay.

William H. Rehnquist:

The Court of Appeals simply said the case have to go back for a jury verdict, didn’t it?

A. W. Sorelle III:

The Court of Appeals, yes sir, they finally determined that it should go back to determine whether the sheriff was unreasonable in failing to have previously instituted this policy.

William H. Rehnquist:

So, and that was to be determined by the jury or judge as my question of fact?

A. W. Sorelle III:

That would be a question fact and it was our position of course that this is a pure negligence issue and that if this Court affirms that holding that it would be extending 1983 to Simple Negligence Act.

William H. Rehnquist:

So, under the Court of Appeals’ holding the procedures used by the sheriff would be a question of facts for the jury in every case as to whether they confer to the Constitution?

A. W. Sorelle III:

Yes, sir.

So that in any allegation if a man was arrested confined later determined that he should not have been confined whether accorded by a jury or not presumably he would have a cause of action against the jailer to determine whether the jailer should’ve had investigated and determined earlier that he was the wrong man.

I submit, Your Honors, that in this case had Sheriff Baker or he would have been better-off had he done nothing taken this respondent before the magistrate having bound over for trial and ignored the — any change have been — his procedure then it would have been left up to the jury to determine his innocence because Sheriff Baker acted affirmatively to determine that this was the wrong man in releasing and then acted affirmatively to investigate and determine the better procedure by his own good faith acts created the sole evidence on which they Fifth Circuit determine to submit a cause to the jury.

The trial court considered that there was no violation of due process and direct the verdict.

The Fifth Circuit I believe erroneously placed it in contact with Royal versus Kautzky.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.

We’ll hear arguments next in —