THE PRESIDENT'S ADDRESS

Dear GAPTA Member,

On Friday, December 3, 1971, a number of GAPTA members met with Herman Wright, First Vice President of the American Trial Lawyers Association, and some other representatives of ATLA. At this meeting, consideration was given to a membership drive in Georgia, and the GAPTA members voted to invite a task force from ATLA to come into the State of Georgia and help us in this membership drive. I would like to have each of you submit to me the names and addresses of a half dozen persons who are not GAPTA members who you feel should be members of GAPTA. In connection with the membership drive, it will begin, of a 'necessity, in the metropolitan areas of the State. However, it is our hope that after receiving this impetus from ATLA we, on our own initiative, will continue the membership drive through out all of the State of Georgia.

Again, I would like to commend Andy Estes for the fine job which he is doing as Editor of THE VERDICT.

Please mark your calendar for March 10 and 11, 1972, which are the dates set aside for the next GAPTA Seminar to be held here in Atlanta at the American Motor Hotel. In this connection, I would like to point out that Andy Estes is the Chairman of the Seminar Committee and that Cullen Ward is Chairman of the Program Committee.

Marvin Lewis, President of the American Trial Lawyers Association, will appear with Robert Keeton, co-author of the Keeton-O'Conne1 No-Fault Plan, on the Phil Donahue Show on January 10, 1971 from 9:00 to 10:00 a.m. on WAGA-TV Channel 5 in Atlanta. I invite you to see this program.

Yours for a greater GAPTA,
William W. Daniel, President

"NO- FAULT" STUIDED FOR GEORGIA

FROM: GEORGIA BAR REPORTER, Vol. VIII, No.2, p. 4, October 1971.

Early in June 1971, Irwin W. Stolz, Jr., then president of the State Bar, appointed a special, committee headed by Ed. S. Sell, Jr., of Macon, charged with the duty of "studying the various no-fault insurance programs comprehensively and making a report of the committee's findings to the Board of Governors as soon as possible." The committee was immediately organized and within a month's time had accumulated studies, plans, statutes, and proposed statutes from other jurisdictions that have either adopted no-fault plans already or have them under study.

According to Chairman Sell, when the committee met, it was unanimous in concluding that as a committee, and without further assistance, it did not have the capacity to comply with that portion of its charge which called upon it to "study the various no-fault insurance plans comprehensively." The reasons for that are numerous, says Mr. Sell, and he cited a few of them:

- The exact number of no-fault insurance plans probably cannot be ascertained. In a study concluded some months ago, the Pennsylvania Bar Association identified 19 plans which it classified as 'major automobile reparation plans," but apparently the Pennsylvania Bar did not undertake to identify and classify plans which it did not consider as "major".

- The need to adopt a no-fault insurance plan in Georgia cannot be presently demonstrated. The American Bar Association in a study consisting of approximately 250 pages prepared by a special committee found that the sponsors of no-fault insurance list 11 general reasons why the historical "fault" system should be changed.

- One reason given is delay in the courts, but there seems to be no comprehensive compilation of data as to this point as it relates to Georgia courts. If there is no substantial delay in the Georgia courts, then that criticism of the present system would not apply in Georgia.

- Another criticism is that the doctrine of contributory negligence is too harsh. In Georgia the comparative negligence rule is well established so that criticism of the present system would seem to have no application here.

Another general reason given is the cost of automobile insurance and difficulties which seem to be frequently encountered in effecting a recovery, particularly in the relatively small property damage claim, but again the committee is without sufficient information as to the Georgia application of that point.

To sum up, Sell said that the committee is in agreement that it would be highly inappropriate to enact legislation establishing a no-fault insurance plan when the nature and extent of the problems to be solved are unknown as they pertain to Georgia, and that any legislation should be tailored to Georgia problems and not those of other jurisdictions.

The committee established that it would cost not less than $10,000.00 to employ a person or organization competent to collect the essential data, to analyze and ascertain the meaning of the data, and to determine what effect the numerous no-fault insurance plans would have on Georgians in the light of data thus obtained and analyzed. With the consent of the Board of Governors, the committee is seeking funds from outside sources with which to employ such an individual or organization.

It is expected that the committee will report its findings and recommendations for further development of this question to the Board of Governors when it meets in Gainesville on November 12.

The committee, besides the chairman consists of Albert Fendig, Jr., of Brunswick a s vice chairman; Thomas B. Buck, III Columbus; W. Stell Huie, Atlanta; Oscar M. Smith, Rome; Kirby L. Turnage, Jr.,. Athens; Robert H. Walling, Atlanta; and Cullen M. Ward, Atlanta.

REPORT OF ANNUAL MEETING OF AMERICAN TRIAL LAWYERS
PORTLAND, OREGON, AUGUST 1-7, 1971
BY CULLEN M. WARD
BOARD OF GOVERNORS, 5th CIRCUIT

This was a big convention because we were celebrating our 25th Anniversary in the City where the organization was founded by eleven lawyers. There was a great deal of advance publicity.

The Board of Governors met one day in advance of the meeting and again one day after the meeting; Matters discussed and with action taken:

1) To submit dues increase to $50.00 to membership in order to pay our public relations firm.
2) Report of public relations firm.
3) American College of Trial Lawyers suit in California to compel us to change our name because of similarity.
4) Basic Advocacy program in law schools.
5) Election procedures for convention.
6) Many miscellaneous matters requiring routine approval.
7) No-Fault bills and our action taken in the Congress and in the States.

NAME - the case was lost in the lower court to the American College. Our counsel recommended no appeal but a compromise name Association of Trial Lawyer & The Board would have none of this and voted to appeal though $65,000.00 has been spent in expenses and fees thus far. It was decided to submit the matter to the members in the convention. The convention voted to fight, fight to the last ditch and to sue American College. Many of ATL members are members of the College - they said that the college was not made up of trial lawyers but a social group. The evidence in the lower court was that we were not trial lawyers but they were.

The convention program was excellent.

There was a contest developing for First Vice-President between J. D. Lee of Tennessee and Herman Wright of Texas. There was a liberal candidate for Second Vice-President. Fortunately Texas switched their candidate to Second Vice-President and won.

Marvin Lewis in a well-planned campaign won the Presidency over First Vice-President Ted Koskoff of Connecticut. I was pleased with the outcome of the elections. No ultra-liberals were elected and our officers will fight No-Fault with force and vigor.

Seen at the convention were the following Georgians:

Hugh G. Head, Jr. - Atlanta
Alford Wall - Atlanta
Tom Malone - Albany
L. B. Kent - Columbus

I am sure there were others among the 1500 registrants.

The fight against No-Fault has been going on since I went on the Board in 1968. It has occupied most of the Board's time at meetings.

This is my last year on the Board of Governors and unless we get 500 members in Georgia before July 1, 1972, we will not be represented.

THE EDITOR'S NOTES

Perhaps I am cannibalizing my access to the Editor's Notes in this issue, however, I do not wish to impute strongly worded and rigidly opinionated views to those of you who disagree with my thoughts, and if I have breached my editorial position, then I shoulder this acid personally.

As you receive this issue of THE VERDICT our state legislature will convene to consider and act
upon numerous bills which would alter the destiny of the judicial process, the future of all lawyers of this state, and further erode the public's historic privilege and responsibility of governing themselves. I am amazed, shocked and dismayed at the irresponsible, lackadaisical, unconcerned and apathetic desertion of the public in a time of urgent need. The champions of the public the plaintiffs' trial lawyers - have fallen by the wayside to leave the uninformed public at the mercy of the insurance combine. Should the no fault legislation pass, the public will have lost its franchise by default. Lawyers allover this state have convened, to spend hours and money convincing ourselves of what we already know - that the no-fault plan is a monstrous fraud; it is bad, evil, and ill-conceived. We agree among ourselves that no fault is a doomsday plan for the lawyer and the public. While we have brandished our swords behind closed doors, the no fault proponents have bombarded the news media with their litter and with great energy and purposefulness have taken their case to the public, the administration and the legislative halls. Yet, the most persuasive array of minds in this state idle in self-indulgent false confidence. This battle is yours. You must carry the fight to your constituents, your clients, your associates, your friends, neighbors and even your enemies. A few lawyers across the state have been practically alone in a desperate battle in this lopsided campaign. We are indebted to their feverish efforts. But the sad fact remains, that they cannot win this battle by themselves. Each of us should do something; each of us can do something.

Contact at least one legislator; make sure that he knows the entire truth about the no-fault plan. Of course if you do not know yourself, you cannot effectively convey your message. Prepare yourself. You can obtain tremendous factual details about this plan from the offices of GAPTA members which are listed on the inside cover, Hugh Head, Cullen Ward, and practically any GAPTA member.

You can talk about no-fault to your clients; after all, they are the ones who will bear the brunt of this tragedy. You can write your national congressman. You can write your local newspaper. You, as bastions of the community, can address local civic groups.

You can talk to fellow lawyers to bring them into the GAPTA fold to win their time, money, effort and persuasiveness to a unified fight against no-fault.

Lastly, when the chips are down and the chips are down - you cannot count on the other fellow.

If the public cannot count on their lawyers now, if we abdicate our responsibilities to the public, then we have breached their confidence and forfeited our charge. The accusations of the future will be well founded, and how shall you and I respond?

Andrew W. Estes

PHYSICIAN - ATTORNEY RELATIONSHIPS

By: George W. Fryhofer, member State Bar of Georgia, Joint Committee of the Inter-Profession Code of Cooperation.

Note: Recently THE VERDICT has received several letters of comment with respect to whether or not the Plaintiff's attorney could advance medical bills or medical expenses
to soften the reluctant physician. Rather than printing these varied and interesting opinions, THE VERDICT was able to call upon George Fryhofer who occupies a position of some expertise which may be indicated above.

A question arises from time to time as to the nature of the obligation of an attorney representing an injured plaintiff regarding medical expenses submitted by physicians who have furnished medical reports or appeared for depositions or trial as expert witnesses.

Some attorneys have felt that the payment of such charges was champertous in that it constituted the financing of litigation.

Ethical consideration 5-8 of the State Bar of Georgia provides as follows:

“A financial interest in the outcome of litigation also results if monetary advances are made by the lawyer to his client. Although this assistance generally is not encouraged, there are instances when it is not improper to make loans to a client. For example, the advancing or guaranteeing of payment of the costs and expenses of litigation by a lawyer may be the only way a client can enforce his cause of action, but the ultimate liability for such costs must be that of the client."

Based upon the foregoing ethical consideration, it would appear that the advancing or guaranteeing the payment of expenses of physicians for examinations connected with the litigation, medical reports, depositions, and court appearances is appropriate pursuant to that ethical consideration.

The principles governing physician-attorney relationships adopted by the State Bar of Georgia and the Medical Association of Georgia in 1969 provide in regard to physician's fees for medical reports that it shall be the obligation of an attorney requesting a report to see that adequate arrangements for the payment of the charge to be incurred shall have been made. A similar provision applies to physician's fees for court appearances which would apparently include deposition appearances also. The standards further provide that an attorney disbursing money either after settlement or after judgment has an obligation to use every legitimate means to see that the charges of the attending physician, cost of examination and expert witness fee are paid by the client.

From this it would appear that the indebtedness for the various charges is the indebtedness of the client and not of the lawyer but that the lawyer may, if he chooses, ethically advance these costs on behalf of the client or guarantee their payment at the conclusion of litigation.

UNABASHED COMMENT

THE VERDICT takes this opportunity to extend its thanks to the contributors who have enriched us with excellent educational and practical articles and also to extend its gratitude to the fine people who have supported THE VERDICT, GAPTA members and trial lawyers, with their advertising. Especially, we are grateful to the HARRISON COMPANY for their invariable support. It is also appropriate to note the Lawyers CO-OP, Matthew Bender, and West Publishing Company have steadfastly refused to assist the book buyingest people in the world. If a choice between our support or the isolationist is available, perhaps you will know the one to make. Several lawyers, learning of these publishers' attitudes, have refused to purchase publications by these houses. Perhaps it is our quarterly, and refusal to deal with such a trifling matter will not be reflected in these publisher's enormous profits. It should also be noted that the decision not to advertise was made by the executive division of each of these companies, over the objections of our local book salesmen.

FALSE IMPRISONMENT - BETTER THAN IT LOOKS

By: Robert A. Elsner

Note: Mr. Elsner received his legal education, Lamar School of Law of Emory University (J.D.,
1962). He is a member of the Georgia Trial Lawyers Association, American Trial Lawyers Association (Member, Committee on Prepaid Legal Insurance Plans and Group Practices, 1970--), and a partner in the firm of Scheer & Elsner.

The purpose of this article is to, at least lightly; discuss one particular cause of action - False Imprisonment. A type of action that is rising with an alarming consistency. Over "zealous" storeowners, creditors and the like seem to be “quicker-on-the-draw" these days to detain or arrest suspected shoplifters, bad check writers, etc.

Many times these arrests or detentions are of persons who have committed no crime or even if a crime was committed, the persons are yet illegally detained.

The majority of these cases seem to arise out of alleged shoplifting situations but not always. Warrants sworn out on bad checks, forgeries, thefts, or practically any alleged crime imaginable can form the basis for this type of action or its counterpart - malicious prosecution.

This writer's experience has involved either false imprisonment or malicious prosecution (or both) cases arising out of the following: (1) detention for alleged shoplifting; (2) arrest by police at the instance of a shopkeeper on alleged shoplifting charges without a warrant; (3) arrest by police at the instance of an agent of a bus company on allegations of armed robbery of bus company (and agent);
(4) arrest on warrant charging forgery; (5) arrest on warrant charging defrauding of hotel; (6) arrest on warrant charging bad check; (7) arrest by police on allegation of till-tapping - plaintiff pointed out by agent of defendant storekeeper as one of the perpetrators; (8) arrest on warrant charging theft (wrong person arrested).

In suing these cases, I personally have never sued a police officer and would not unless it was clearly shown that the officer was guilty of wrongdoing himself. The mere fact that the officer participated in a wrongful arrest or detention would not prompt me to add an officer as a defendant. However, when it comes to agents of a defendant corporation in these situations, I would add all persons who in any way participated in the arrest or detention, such as the person who allegedly spotted a person doing something suspicious, following the person around the store or assisting in the detention or search. One obvious reason for so doing is that all of these people will be defendants and as such, subject to cross-examination as the agent of an adverse party, whether or not they are still with the store at the time the case comes to trial. In many instances, some of the stores involved in such cases, especially discount stores, have a large turnover of employees.

Next, you have the choice of suing in one count or several. Such counts that may be involved in these cases are of course, false imprisonment, malicious prosecution (if the arrest was under a valid warrant), assault and battery (if the person is touched in any way or threatened), slander, and tortious misconduct. It probably is the better idea to sue in one count only and in so doing argue as the basis of your action all of these causes of action. By suing in separate counts, problems can arise which would take far too much time to be fully explained here.

One interesting count mentioned above is that of tortious misconduct. You will find few cases dealing with tortious misconduct in Georgia. The action is somewhat of a hybrid cause of action, probably arising out of the appellate court's desire to fill the void between actions by employees of corporate defendants that might be considered outside the scope of their employment. The cause of action itself arises out of Georgia Code Sec. 105-401, which is commonly called the Owner-Occupier Statute. This statute places onus upon the owner or occupier of premises to keep the premises and approaches safe for invitees lawfully upon the premises. It is the feeling of this writer that under this code section and under the count or cause of action known as tortious misconduct that only the owner or occupier could be liable.' The reading of the statute, although there are no reported cases known to this writer which so hold, would indicate that the statute is exclusively one which makes the owner or occupier liable for conduct of his employees which fall within the purview of the section. Therefore, if suit is filed against a principal defendant and agents jointly under this cause of action, the liability of the owner or occupier (principal defendant) would not be derivative as in usual agent principal cases.

FALSE IMPRISONMENT CASES

LAW RELATING TO FALSE IMPRISONMENT

The action for the tort of false imprisonment, sometimes called false arrest, is derived from the action of trespass.

Georgia Code 105-901 provides that: "False imprisonment consists of the unlawful detention of the person of another, for any length of time, whereby he is deprived of his personal liberty."

Thus, in an action for damages for false imprisonment, the only essential elements are arrest or detention and the unlawfulness thereof. Colony v. Imperial Tobacco' Company, 63 Ga. App. 880,885 (1940). Restraint constituting false imprisonment may arise out of words, acts, gestures, which induce reasonable apprehension that force will be used if the person does not submit, and it is sufficient if they operate upon the will of the person threatened, and will result in reasonable fear of personal difficulty or personal injuries. Sinclair Refining Company v. Meek, 62 Ga. App. 850, 851 HN3 (1940).

A person need not make an effort to escape or to await application of open force, and thereby possibly suffer physical injury, before he can recover for false imprisonment. It is enough if restraint be put upon the person by fear or force. Sinclair Refining Company. supra.

Any restraint, however slight on another's liberty, to come and go constitutes an "arrest". Turney v. Rhodes, 42 Ga. App. 104 (1930).

It is no defense that a person perpetrating the illegal arrest or imprisonment is ignorant of the illegality of his acts, since knowingly committing or participating in an act which is, in fact, illegal, is sufficient to fix liability for false imprisonment. Lowe v. Turner, 115 Ga. App. 503 (1967).

Normally, good faith goes to the mitigation of damages; however, good faith does not prevent recovery in a false imprisonment case. Malice on the part of the, person who is directing the detention need not be shown. Westberry v. Clanton, 136 Ga. 795 HN3 (1911). However, the presence or absence of malice may, however, be shown in aggravation or mitigation of damages.

THE EFFECT OF GEORGIA CODE 105-1005 ON SHOPLIFTING CASES INVOLVING FALSE IMPRISONMENT

Of particular interest is Ga. Code 105-1005, which is applicable to shoplifting cases and provides:

“Whenever the owner or operator of a mercantile establishment or any agent or employee of such owner or operator shall detain or arrest, or cause to be detained or arrested, any person reasonably thought to be engaged in shoplifting and, as a result of such detention or arrest, the person so detained or arrested shall institute suit for false arrest or false imprisonment against such owner, operator, agent, or employee, no recovery shall be had by the plaintiff, (Emphasis added), in such action where it is established by competent evidence that the plaintiff had so conducted himself or behaved in such manner, as to cause a man of reasonable prudence to believe that such plaintiff was committing the offense of shoplifting, as defined by the statute of the state, at or immediately prior to the time of such detention or arrest or, (Emphasis added), provided that the manner of such detention or arrest and the length of time during which plaintiff was detained was under all of the circumstances reasonable."

This writer's interpretation of Ga. Code 105-1005 is that three elements must exist in order for the Defendant to avail itself of the defense offered by said code section, to-wit:

1. Plaintiff acted in a manner as to cause a man of reasonable prudence to believe that the plaintiff was shoplifting;
2. The manner of such detention was reasonable;
3. The length of time during which plaintiff was detained was reasonable.

If anyone of the above mentioned elements are not found, it is submitted that the requirements of the code section have not been satisfied. However, it should be noted that this code section utilizes the term "or" rather than "and" as indicated above and thus, could be interpreted as meaning if either Element 1 or Elements 2 and 3 are present, the plaintiff is barred from recovery.

The Court of Appeals of Georgia apparently favors the latter interpretation of Georgia Code Sec. 1051005. In S. S. Kresge Company v. Carty, 120 Ga. App. 170, 173, 174, the Court of Appeals held that it was error not to give the following two charges to the jury:

a. "I charge you further, in connection with Code Section 1051005 that if you should find that the plaintiff had acted in such a manner as to cause a man of reasonable prudence to believe that the plaintiff was committing the offense of shoplifting, even though she was not shoplifting, then, in such an event, it would be your duty to find for the defendants because no recovery for false arrest or false imprisonment can be had under those circumstances."

b. "I charge you in connection with Code Section 105.,1005 that if you should find that the defendants did as a matter fact detain plaintiff, but that under all the circumstances the detention and the length of time thereof was reasonable, then in such an event, you could not find for the plaintiff but should find for the defendants."

The giving of these two charges authorized a jury to find for the defendant on alternative theories. Notwithstanding whether the time and manner of detention was reasonable, if a jury can conclude that the plaintiff acted in a manner to cause a man' of reasonable prudence to believe that the plaintiff was shoplifting, recovery is barred, according to Charge A. Such an interpretation would be ridiculous in many factual situations. For example, assuming probable cause for detention or arrest existed, can a merchant lock a person in a closet for 24 hours without fear of recovery against him? The right to detain should not be considered as a license for a merchant to abuse or insult the alleged offender. It is obviously unreasonable to confine a person in a small room to compel or coerce a confession, or for any reason. In the alternative, assuming probable cause for detention or arrest does not exist, can the operator of a store detain any person for a few minutes for whatever reason? If Georgia Code 1051005 authorizes alternative theories to bar recover, this code section is objectionable on Constitutional grounds. Compare Georgia Code Sec. 105-1005 with S. C. Code Sec. 16359.4.

Prior to the enactment of Georgia Code Sec. 105-1005, the rule in false imprisonment cases was that malice and want of probable cause need not be shown by the plaintiff. Lowe v. Turner, 115 Ga. App.< 503-506., Quaere: Does Georgia Code Sec. 105-1005 result in making "probable cause" or "reasonable cause" an affirmative defense with the burden of proof on the defendant or, does it add the element of showing want of probable cause to the necessary ingredients in maintaining an action for false imprisonment, thereby placing the burden of proof on the plaintiff?

This writer believes the better rule is that Georgia Code Sec. 1051005 is an affirmative defense. See Dixon v. S. S. Kresge, Inc., 119 Ga. App. 776, 779, 780 (1969) (dissenting opinion). In the
Dixon case, the majority did not directly address itself to the above stated problem.

An interesting situation which frequently occurs in shoplifting cases is where the owner or operator of a store directs or causes the arrest of a person suspected of shoplifting, detaining him until the police arrive and a warrant not being sworn out for several hours. See Goodwin v. Gibson's Products Company, 121 Ga. App. 59, 61-67 (1970) (Dissenting opinion).

There is a duty imposed on a private person making or causing an arrest to swear out a warrant within a reasonable time after the person being taken into custody. Westberry v. Clanton, 136 Ga. 795.

In Ocean S. S. Company v. Williams, 69 Ga. 251, 262, the Supreme Court of Georgia stated: "wherever the arrest is made by a private citizen who is present at the commission ,of the offense and sees it committed, or who acts upon reasonable or probable grounds of suspicion in making the arrest, the duty is not discharged by turning the party over and committing him into the custody of a police officer who has no authority to take an affidavit and issue a warrant. The imprisonment under such an arrest would not be legal, beyond a reasonable time allowed for procuring a warrant, and this
is always a question for the jury under proper instructions from the Court. . . . . Time is not given
to make an investigation of the facts of the transaction, but to procure the warrant."

Quaere: What is the effect of Georgia Code Sec. 105-1005 in the above-stated situation? Assuming that a warrant was never sworn out, would there not be false imprisonment as a matter of law? These questions have not been directly answered by the appellate courts of Georgia.

This writer believes that the purpose of Georgia Code Sec. 1051005 is to allow a merchant to detain a person where probable cause exists in order to protect his property without fear of being subject to liability in a false imprisonment suit. However, where the merchant's conduct appears to be for the purpose of punishing the alleged offender, the merchant has gone beyond the scope of the statute.. Where the goods are returned, payment is tendered, or the suspect is vindicated, further detention may be considered unreasonable, and thus, should subject the merchant to liability. This statue affords necessary protection for the merchant, but any interpretation of this law which omits reasonableness of time and manner of detention as necessary ingredients in utilizing this defense must be considered as a danger to the Constitutional rights of others.

SHOULD I TAKE THE CASE?

If your case has good specials or personal injury, then damages probably will present no problem to you. If, however, in your case the special damages are meager or nonexistent, be convinced that the facts of your case will enable you as an advocate to persuade a jury that a grievous wrong or injustice has been done your client so that they (the jury) will correspondingly award you a sufficient verdict. Otherwise, pass the case unless the fight is one of principle.

First, evaluate your case closely. Is it one that will appeal to a jury or can the defendant wiggle out of liability or damages on such niceties as probable cause, simple mistake (no malice or bad faith), no real injury to plaintiff although the defendant is wrong, and so forth. Obviously, there are no specific guidelines here and each case must be judged on its merits. However, some guidelines are:

1. Does the injustice or wrong involved raise your ire?
2. Try the factual situation on an objective-minded adult friend (a so-called peer).

Secondly, usually for a big verdict potential there must be a big defendant. A corporate defendant will usually suffice. An individual defendant, only, may be a problem, especially in this type of case.

If your case passes the test, notify the defendant of your representation and demand settlement; but don't expect a rush to your door with a briefcase full of money. Be prepared to file suit quickly; there is nothing to be gained here by waiting. Your damages are almost always set in this kind of case.

WHAT KIND OF JURY?

In false imprisonment cases the type of jury is all-important (as indeed it always is). However, here the type of juror that you might consider unacceptable in a personal injury case may be acceptable. You certainly want the type of person who would vote for the underdog, the maligned, the downtrodden, and who, in your opinion, would appear to you to be a defender of the ordinary rights of your plaintiff. People who would give nothing or low verdicts in a whiplash case will give considerable damages in this type of case.

Then, begin your case by indoctrinating the jury as to your most important item - punitive damages. On voir dire ask each prospective juror about his feelings regarding punitive damages. I would suggest that you first read to all jurors the definition of punitive damages, either by paraphrasing the code or reading the code directly. Frankly, I feel that holding the Code of Georgia in your hands where the jury can see it and reading from that book is far more effective. Your reason, of course, for telling the jury about the law in your own voir dire is that in order to intelligently ask the jury your next question, you must be sure that they understand what the element of damage of punitive damage means.

Then, ask the particular juror whether or not, if they were selected as a juror and felt, after hearing the evidence and charge of the Court, that punitive damages were authorized if he or she would have any hesitancy in awarding this type of damage. That you have the jury's attention from the beginning of the case directed toward the very thing you wish for them to be thinking about throughout the entire trial is of utmost importance. Many jurors (hopefully all) will be looking for the facts to authorize them to give you punitive damages.

Thereafter, and on the trial of the case, there are many niceties that can be applied in this particular type of action. Unfortunately, it would be impossible to fully discuss these in such an article as this for reasons of space and due to the fact that many of the "niceties" arise as a result of the particular facts of your case. However, you should obviously elaborate on and punctuate your evidence that shows most clearly the injustice done to your client and the indifference to consequences of the agents of the defendant. Hammer away at the failure of the defendant, or agents, to even apologize or show in any way the remorse for their flagrant abuse of the rights of the plaintiff.

In your closing statement, regardless of any close factual situation existing as regards liability, spend most of your time speaking of damages and, unless you have large specials or severe injury, pound away on your theme of punitive damages. I would do this even if extensive specials and severe injury existed.

Remember that in trying this type of case, one where your main damages are punitive damages, you are performing a benefit for your community. The jurors are representatives of your community. This should be brought home to them and they should understand that someone must come into Court and bring this action to the attention of the community through them, and that only through a large award (especially in the case of a corporation or obviously wealthy individual) can the element of damage known as punitive damage work its magic. A small verdict would be akin to a slap on the wrist. A large verdict would be the voice of the community utterly condemning a defendant for his action and telling him in no uncertain terms of the consequences should the act be repeated.

There have been of recent date more verdicts for plaintiffs in false imprisonment cases and larger verdicts for plaintiffs in these cases. Correspondingly, it shows companies are getting the idea and presently seem to be offering, at least, to this writer, better settlements. Remember, insurance companies do not settle these cases out of love for mankind, but out of economic necessity.

When these cases come into your office: look at them carefully; do not let a good one get away.

SETTLEMENT--QUID PRO QUO

By: William T. Elsey

Note: Mr. Elsey is _ former case manager for the Traveler's Insurance Company for the State of Georgia and prior to that, case manager for Eastern Tennessee. He is a member of the Maryland Bar and the Georgia Bar and is currently engaged in the practice of law in partnership with Hugh G. Head, Jr., in Atlanta, exclusively representing Plaintiffs. Mr. Elsey speaks with great authority on this subject, employing his experience on both sides of the fence.

A great deal has been written concerning how to negotiate a settlement of a tort liability claim with an insurance company. Much of it makes sense, is reasonable, and represents good basic advice. Too much of those writings, however, sounds suspiciously related to instructions on how to win at poker, or how to surreptitiously outsmart your 1esserendowed opponent. Some of the more base pronouncements, surprisingly enough from some of the most respected of the Plaintiffs' Bar, presume to malign both the integrity and the competency of the insurance industry and those of its representatives who actually make its decisions. In my judgment, I believe most of these writings, instructions, and exercises in spleen-venting overlook the very basic consideration which will usually provide the vehicle to carry you quickly down the settlement road.

In the majority of cases, a sett1ement of a tort claim involves a mutual compromise between two usually sincere, but nevertheless different, evaluations of the money worth of an injury claim. The people who make those evaluations and decisions for the insurance carriers are, for the most part, quite honorable men, and are neither incapable nor reluctant to sincerely respond to a settlement presentation from the Plaintiff which is made to them in a competent, realistic and professional manner. The simple truth of the matter is that the representative whose job it is to evaluate a case of real and substantial exposure has probably evaluated many more such cases than most of the Plaintiff counsels who are presenting it. It is an exercise in pomposity and, worse, a misreading of reality to consider such people comparatively incompetent or professionally naive.

Surely every experienced eva1uator of claims realizes that there are a multitude of diverse and different facets of each and every claim which must be considered in analyzing the very unique situation that each claim or law suit presents. They are all different and unique and defy the codification of any set of rules by means of which a reason_ able value can readily be determined. Two evaluators, of comparable intelligence and meaningful experience, however, given the benefit of the same information, should be able to arrive at separate evaluations which are realistic enough to be conducive to a compromise which is professionally palatable to both.

Settlement negotiations should not be a contest in concealment. The capable evaluator does not expect his opposite to accept his evaluation on faith or clairvoyance. If he has a strong case, he is most willing to show that strength and to reveal the unique facets of that particular claim which, in his experienced opinion, enhance its presentation value to a jury. His evaluation is correspondingly substantial and is reflected in his settlement position. On the other hand, he is not myopic to the flaws and dangers present in his weaker case. He is willing, if somewhat more reluctant, to admit to them, to discuss them, and to discount them accordingly. Rarely will he be giving anything away, for surely, sooner or later, those flaws and weaknesses would be discovered anyway.

Successful settlements then require two truly competent evaluators. If one is only pompously self-styled as competent, negotiation is wasted time and effort which would be better spent on trial preparation. If both are truly competent, however, and the Plaintiff evaluator will make a full, professional presentation, the probability of a fair, reasonable and expeditious settlement is greatly enhanced.

DO: Know the company with whom you are dealing and the capacity of the representative who will make their evaluations. If either or both do not meet the required standards, do not waste your time in presenting a settlement presentation.

DO: Undertake an agonizing and objective reappraisal of you own capacity. If you have neither the experience nor the ability to evaluate the case you are presenting, seek the advice of someone who does.

DON’T: Present an evaluation “off the top of your head.” If the circumstances are ripe for a meaningful presentation, then give the case the serious thought necessary to support a realistic and sincere evaluation.

DON'T: Crumble on the courthouse steps. If you have presented a sincere and realistic settlement proposition and no honorable compromise of that position is feasible, then try your lawsuit. Once you get the reputation as a lawyer who is either not prepared, not capable, or not willing to try his cases, your chances of a realistic settlement are substantially reduced.

WRONGDOING UNDER COLOR OF LAW A REMEDY

By: William o. Green, Jr.

Note: Mr. Green is a partner in the law firm of Payne, Barlow & Green, Austell, Georgia. He is a member of the Board of Governors of the State Bar of Georgia, the Georgia Association of Plaintiff's Trial Attorneys, the American Bar Association, State Bar of Georgia, Cobb Judicial Circuit Bar Association and American Trial Lawyers of the representative who will make Association. He is admitted to practice before all the State and Federal Courts in Georgia and he is a member of the Bar of the Supreme Court of the United States.

The most frequent abuse of governmental authority is by law enforcement officers. The "remedy" discussed in this article is, however, available in response to other types of official malfeasance. Because of limitations of time and space this discussion will be limited to the framework of the hypothetical situation of a sheriff of a rural Georgia County shooting and killing a fleeing suspect.

If your client is a victim of miseuse of official authority, consider an action for damages for the deprivation of your client's civil rights by the official. Jurisdiction is predicated on 42 U;S.C.
Section 1983 and 28 U.S.C. Section 1383.

In our hypothetical case, plaintiff alleges that defendant, while acting under color of state law, as Sheriff of Ajax County, without lawful cause, shot and killed her husband thereby depriving her husband of rights, privileges and immunities secured by the Constitution and laws of the United States. Plaintiff seeks recovery of damages for the value of the life of her husband and she also seeks punitive damages.

Plaintiff's decedent was' killed July 4, 1968. Her complaint was filed in the U. S. District Court naming the offending official, and his bonding company and in due course the defendant filed his responsive pleading_. As his first defense he admits the residency allegations and that his usual duties were to enforce the laws, statutes and ordinances of Georgia and of Ajax County and he otherwise denied the allegations of the complaint.

As his second defense, the defendant alleges that in committing the acts set forth in the complaint he was acting pursuant to permission of the law to prevent the perpetration of a felony.

In his third defense, the defendant pleads that he acted in self-defense.

In his fourth defense, defendant attacks the constitutionality of 42 U.S.C. Section 1983 on the basis that this statute does not afford him equal protection of the law in that it provides immunity to this type of action to some persons and not to him.

The fifth defense is the usual motion to dismiss the complaint on the basis that it fails to set forth a claim upon which relief can be granted.

Don't over plead. Strict and detailed pleading is not required.

In Hughes v. Noble 95 F. 2d 495 (5th C.A., 1961) the 5th Circuit Court of Appeals held you don't have to. The complaint alleged in substance that Plaintiff had a wreck; without cause defendant Sheriff jailed plaintiff and he was not allowed medical attention and was not allowed to use the telephone. Suit was brought under Section 1983. The District Court sustained defendant’s motion to dismiss. The Court of Appeals reversed and held that an appraisal of the sufficiency of the complaint is subject to the rule that the complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. This rule of interpretation was clearly set forth as being particularly applicable to a complaint drawn under this same (civil rights) section in Conoley v. Gibson 355 U.S. 41, 45, 46 (1937).

Another word of caution: don't name a municipality as a party. In Hewitt v. The City of Jacksonville, 188 F. 2d 420 (1951) plaintiff alleged that he was shot by the superintendent of defendant city's prison farms. However, the amended complaint alleged that the City of Jacksonville acting through the superintendent of its prison farms did unlawfully and willfully shoot and discharge a pistol against, into and upon the plaintiff. The superintendent of the prison farms was not made a party to this suit. The Appellant based his entire case on his claim against the City of Jacksonville. The only holding of importance in this case is that under this civil rights act a municipality cannot itself be named as a party defendant. By the explicit terminology in this case had the plaintiff made his claim against the superintendent individually this case would have been properly stated.

As an aside, there is authority for the proposition that in certain factual situations you might be able to name, individually, the members of the governing body, i.e. the City Commissioners.

The first thing you will have to dispose of is the motion to dismiss.

28 U.S.C.A. Section 1343 provides in pertinent part:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;

"(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote."

42 U.S.C.A. Section 1983 provides, in full:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Clearly your jurisdiction is not based on diversity. It is by statutory grant that plaintiff has the right to bring suit in federal court.

Jackson v. Duke 259 F. 2d 3 (5th Circuit, 1958), beginning at page 7 says:

“Appellants argued that the original complaint did not allege that the court had original jurisdiction under 28 U.S.C. 1343. The codal section refers to original jurisdiction of the federal courts to try civil rights cases. This comes very close to a quibble. The original complaint alleges that the court has jurisdiction under 48 U.S.C. 1983. This section created an action for deprivation of civil rights. There are several specific allegations that the defendants acting in their official capacity as police officers of the city and under color of law assaulted the plaintiff, beat him, arrested him, illegally searched him, put him in jail and deprived him of his liberty. These allegations make a prima facie case for federal jurisdiction based on the complaint alleging deprivation of civil rights."

In the landmark case (in this field) of Monroe v. Pape 365 U.S. 167 (1961) the Court said, at page 180:

"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 14th Amendment might be denied by the state agencies."

A 5th Circuit case that will be useful to you in Georgia is Jackson v. Martin 261 Fed. SuPP. 902
(D.C., N.D. Miss. 1966). In this case money damages were sought under the "civil rights act". The complaint alleged, in substance, that defendant was a municipal policeman charged with the duty of enforcing state laws and city ordinances; that plaintiff was standing on a sidewalk in front of a public cafe; that defendant shot him.

Defendant's motion to dismiss was denied.

At note 5 the Court stated that in an action against a policeman under the civil rights act for money damages that even accepting as true defendant's contention that plaintiff was disturbing the peace the motion must be denied because distrubing the peace would not authorize the policeman to shoot plaintiff since it is only in certain aggravated circumstances that a law enforcement officer may shoot a person who the officer is attempting to arrest.

At page 904 the Court further stated:

"These allegations under the criteria established in this Circuit (5th) by the cited cases, sufficiently state a cause of action under Section 1983."

Your opponent may argue that if you have a wrongful death or survivors act claim that jurisdiction is in state courts. You won't let him do that. Squarely on the point is Brazier v. Cherry 293 F. 2d 401 (1961), a 5th Circuit decision out of the Middle District of Georgia. Precisely this same question was raised and the Court of Appeals reversed the District Court that had sustained defendants' motion to dismiss. The facts were that defendant police officers £11ega11y arrested plaintiff's decedent and beat him to death. Their acts in doing so were alleged to have deprived decedent of rights and privileges of being secure in his person, of due process and equal protection of the (federal) law. Suit was brought by his surviving widow individually and as administrator of his estate.

The Court of Appeals held that the complaint stated a claim and reversed the District Court.

Now you have pleaded properly and you have disposed of the motion to dismiss and you have deposed the officer. You might well next consider a motion for summary judgment on the issue of liability.

In a gross case you may successfully argue that as a matter of law," upon admitted facts, plaintiff is entitled to prevail. This is what summary judgment is for. Barron & Holtzoff, Section 1231; U.S. v. Dollar, 100 Fed. Supp. 881, 884;196 F. 2d 551. In Dollar the Court stated:

"The motion (for summary judgment) required the opposition to remove the shielding cloak of formal allegations and demonstrate a genuine issue, as to a material fact. "

The summary judgment procedure does not, seek to cut defendant off from his right to jury trial. It seeks to determine what, if any, issues of fact exist for a jury to try; and, to enable the Court to expeditiously dispose of the case by giving judgment on the law where material facts are not in dispute, as they are not, in your case, on the issues of liability. Carantzas v. Iowa Mutual Ins. Co., 234 F. 2d 193 (C.A. 5th 1956); Surkin v. Chateris, 197 F. 2d 77 (C.A. 5t,h 1952).

In considering the motion the Court may, and indeed should, consider all of the pleading, papers, depositions, evidence and other matters before the Court. Gillis v. Miners & Merchants Bank of Alaska, 271 F. 2d 163 (C_A ._9th 1959}.

The mere., fact that an issue is made by the pleadings is not determinative, where interrogatories or other evidence' otherwise pierce the pleadings. American Airlines v. Ulen, 186 F.2d 529 (C.A., D.C: 1949), 7 F.R.D. 371 (1947).

Yours is a wrongful death action and it "sounds in tort". Monroe v. Pape, 365 U.S. 167 (1961). Such a case (tort) is properly susceptible of summary judgment on the liability issues. See Hahn v. U.S. Airlines, 127 Fed. Supp. 950 (D.C., E.D.N.Y 1954) which was a civil action for damages in which plaintiff's motion for summary judgment on the issues of liability was granted. See also Marsden v. Patane, 380 F.2d 489 (C.A. 5th, 1967). Marsden was a wrongful death action predicated on the alleged negligence of the defendant. The District Court granted plaintiff's motion for summary judgment on the issues of liability and the Fifth Circuit Court of Appeals affirmed the granting of plaintiff’s motion on the issues of liability. See also' Block v. Biddle, 36 F.R.D. 426 (D.C., W.D. PA., 1965) which is an automobile negligence action in which plaintiff's motion for summary judgment on the issues of liability was granted.

In your case you certainly will be able to establish for summary judgment purposes that your sheriff was acting by virtue of his office; "under color" of his office. An act done under color of office is discussed in Luther v. Banks, 111 Ga. 374, 36 S.E. 826 (1900), where it is defined to be

.._a pretense of official right to do an act, made by one who has no such right."

In Hawkins v. National Surety Corp. 63 Ga. App. 367, 11 S.E. 2d 250 (1940), you are given this definition:

...'an officer's acts are done colore officii when they are of such a nature that his official position does not authorize the doing of such acts, though they are done in a form that purports they are done
by reason of official duty and by virtue of -his office."

In 15 C.J.S. 236, the phrase is defined in the following language:

“A wrong committed by an officer under pretended authority of his office."

Here are some pertinent Georgia cases which have defined similar acts to have been "under color of office"; Robertson v. Smith, 16 Ga. App. 760,83 S.E. 988 (1913); the facts were that a sheriff's deputy killed the plaintiff's husband while attempting to arrest him unlawfully, under color of law. Also, see Robertson v. Smith, 16 Ga. App. 767, 85 S.E. 991 (1915). In Copeland v. Duneh9°, 36 Ga. App. 817_ 267 (1927) the officer illegally shot at the plaintiff while attempting to arrest her. In Powell v. Fidelity & Deposit Co., 45 Ga. App. 88, 163 S.E. 239 (1931), s.c., 48 Ga. AhP. 529, 173 S.E. 196 (1933), the sheriff's deputy without provocation unlawfully killed a prisoner who was in his custody under arrest. In Richards v. Am. Surety Co., 48 Ga. App. 102, 171 S.E. 124 (1933) the deceased was at a still, but ran when the officers approached. The deputy shot and killed him to prevent his escape. In Glen Falls Indemnity Co. v. Dempsey, 68 Ga. App. 607, 23 S.E. 2d 493 (1942), the sheriff, while serving a search warrant, assaulted the plaintiff's husband. In.A1dridge
v. Wooten, 68 Ga. App. 887, 24 S.E. 2d 700 (1943), the sheriff shot at an escaping convict and ki11eq a bystander. See also, Mitchell v. Malone, 77 Ga. 301 (1886) .

The big federal decision holding that such acts, as you are concerned with, are acts colore officii is Screws v. United States, 325 U.S. 91 (1945).

If you have a death action, you may very well get summary judgment on liability because, of course, Georgia law will be applied to test whether the officer had the right to use deadly force.

..."for he (a law officer) could not lawfully kill him merely because he (an escapee) ran from him to avoid arrest".. .Croom v. State, 85 Ga. 718 (1890). (Parens supplied).

..."no arresting officer has any right to kill a person for trying to escape in the commission of a misdemeanor." King v. State, 91 Ga. App. 825, 828 (1955).

“The Court did not err in charging that an officer has no right to follow up one whom he seeks to arrest, and attempt to shoot or kill him, if the person sought to be arrested is making no effort to resist arrest, but is only attempting to avoid it by flight." McAllister', et. a 1. v. State, 7 Ga. App. 541, 67 S.E. 221 (19Q.22.

An officer has no right to proceed to the extremity of shooting one whom he is attempting to arrest for a violation of a municipal ordinance, in order to prevent his escape, even though the offender cannot be taken otherwise. Holmes v. The State, 5., Ga. App. .166, 62 S.E. 716 {19Q8).

Even though an officer may have the right to arrest, he cannot use more force than is necessary, under the circumstances, and he cannot us & unnecessary violence that is disproportionate to the resistance offered. Deadly force used to prevent an escape from an officer, for the commission of a misdemeanor, is not justified. Mullis v. State, 196 Ga. 569, at p. 577 (1943).'

In Savannah News-Press v. Harley, 100 Ga. App. 387, 111 S.E. 2d 259 (1959), at p. 389, the Court stated that where a felony has not been committed and the only crime is no more than a misdemeanor the officer has no right, merely to prevent an escape, to shoot a misdemeanor suspect who is fleeing from him. Then the Court went on to say that even if a felony was being committed and the felon fled and by his flight unmistakably showed that he had abandoned the felonious act and the shot was fired to prevent the escape rather than to prevent the felony the officer would have no right to shoot the suspect. (shades of Sauls v. Hutto, 304 Fed. Supp. 124 (D.C., E.D. La. 1969).

In Drew, et. al. v. State, 136 Ga. 658 (1911) at note 3, it was stated that if a person steals property and flees and the owner pursues him and overtakes him and there is no necessity to take life but he does kill the thief such a killing is not justifiable, even though the theft is a felony.

It appears to be the public policy of the State of Georgia that the law of Georgia

... "jealously guards 'personal liberty' (and) ...it is no less jealous in ,guarding the sacredness of human life" . . . Napper v. State, 200 Ga. 626, 629 (1946).

The Napper case concerned the killing of an officer by an illegal arrestee. The Court observed that if the force employed in resisting an illegal arrest is in excess of necessary force the accused is accountable under the law for the excess. Undoubtedly, the reverse of this principle must be true, and, if the officer uses excess force he too must be accountable for his excess.

On this point the general law appears to be quite in accord with Georgia.

"Except where he acts in self defense... an officer... in making an arrest without a warrant on suspicion of a felony is (not) justified in killing the suspect in order to effect an arrest, no matter how reasonable the grounds of suspicion may be, unless the felony has actually been committed. He may use only such force as is allowable in cases not felonious unless the offense was in fact a felony." 6 C.J.S p. 614, Section 13 Q?2 .

“Arrest for misdemeanor, it is everywhere agreed, does not justify the use of such deadly force even though the criminal is in flight and there is no other possible way to apprehend him. (cases cited)." Law of Torts, Third Edition, p. 136, et seq., William L. Prossor, West Publishing Company.

The general law also appears to be in accord with Georgia in that even in resisting an unlawful arrest it can only be resisted by "reasonable force" because the harm which is likely to be inflicted by unlawful imprisonment is not sufficiently important to justify the infliction of serious injury or death to the person committing the illegal arrest. Therefore, the reverse must also be true. In many jurisdictions a distinction is made (between the right and non-right to use deadly force on a fleeing felon) depending on the type of felony perpetrated. For example, an officer might be permitted to use deadly force if the suspect is being arrested for murder but not one guilty of such a felony as theft. State v. Bryant, 65 N.C. 327 (1871); Storey v. State, 71 Ala. 329 (1882) 3 A.L.R. 1161. This precise principle has not been enunciated in Georgia but the tenor of the decisions is certainly consistent with that principle, i.e., Thompson v. State, 4 Ga. App. 649, at 652 (1908) where it was held that the right to arrest a suspect without a warrant "is broader in felony than misdemeanor cases (case citations).

You won't let them cry ignorance in your case. Your sheriff is conclusively presumed to have known that he did not have the right to use deadly force to apprehend the fleeing person. Copeland v.
Dunehoo, 36 Ga. App. 817,822 (1927).

"It should be obvious to all fair minded and law abiding citizens that it is...important for arresting officers to confine themselves within their legal rights in making arrests" . . .Douglas v. State, 152
Ga. 379 (19_J-1..

In your case, it is irrelevant whether the sheriff had the specific intent to hit a particular person in the fleeing car. In Paramore v. State, 161 Ga. 166 (1925) a misdemeanor suspect escaped custody and was fleeing the officer who could not catch him and the Court said that the officer was guilty of an assault.

..."no matter whether his intention was to hit the person so fleeing or simply to intimidate him and thereby induce him to surrender."

In Copeland v. Dunehoo, 36 Ga. App. 817 (1927), a deputy sheriff fired at a car suspected of carrying illegal whisky and the Court held at page 822 that when a suspect is fleeing from arrest for, or detection of; a misdemeanor the deputy sheriff..."had no right to shoot her or to shoot at her." (emphasis supplied) .

The general law is: when an officer seeks to arrest someone for a misdemeanor he is not justified in shooting whether his purpose is to kill the fugitive or merely to check his flight, even if he cannot otherwise be taken. 5 Am. Jur. 2d 169, para. 83; Tuttle v. Forsberg, 73 N.E. 2d 861; 60 A.L.R. 2d 861, 885.

In firing of shots to effect the arrest of a lawbreaker, with no intention of injuring the lawbreaker, is still an assault and battery when the lawbreaker is hit, 4 Am. Jur. 139, Section 20. Unquestionably, the use of firearms to stop an automobile is an obviously extreme measure which should be used only in the most serious instances. It involves the safety of persons not otherwise involved in the occurrence.

Sauls v. 'Hutto, 304 Fed. Supp. 235 (D.D., E.D. La. 1969) is a remarkably helpful Fifth Circuit case. A police officer shot and killed a fleeing felony suspect and was sued for damages under the statute in question. The Court states the basic question as being:

“justification for the use of deadly force in contemporary society."

There were four young men in the stolen car. The deceased was driving. In the chase the stolen car crashed and the deceased tried to escape. An officer shot the boy and this wrongful death action resulted. Suit was predicated on this civil rights act on the basis that plaintiff's decedent was: (1) deprived of life without due process; and, (2) the killing violated substantive due process. The Court held at note 2 that since the plaintiff was entitled to recover damages under state law the determination of her federal constitutional claim was pretermitted because it would afford her no additional relief. The Court further held that it had pendent jurisdiction because the plaintiff's claims, state and federal, arose from a common nucleus of operative fact and that they sprung from "identical facts". The case was decided on the basis of a Louisiana statute to the effect that deadly force could be used only when life itself was endangered or great bodily harm threatened.

In the humble opinion of the author of this poor article, whatever a state officer does in abuse of his official capacity gives the federal court jurisdiction under this section, assuming of course, you can prove damage. The prime object of the Fourteenth Amendment of the Constitution of the United States is to protect victims of official abuse of state authority. Screws v. United States, 325 U.S. 91 (1945).

Due process of law as guaranteed by the Fourteenth Amendment is intended to secure the individual from the arbitrary exercise of governmental power under restraint of established principles of private right and distributive justice. Refou1e v. Ellis, 74 Fed. Supp. 336 D.C., N.D. Ga.), note 7.

In Monroe v. Pape, 365 u.s. 167 (1961), the Supreme Court observed that in enacting this civil rights statute the Congress intended to give to citizens protection from official abuse of power. In this case the Court further observed that one of the purposes of this legislation was to afford a federal right in federal court because by reason of prejudice, neglect, intolerance or otherwise, state laws might not be enforced in a manner sufficient to protect persons suffering abuse of official power. In this case the Court was talking about a Fourth Amendment violation but the principle is applicable to other abuses of constitutional rights. For example, the right to live, the right to a lawful arrest, the right to a trial by jury for supposed violation of state law, as well as the right to substantive due process.

In the Monroe v. Pape supra (at p. 175) the Court made reference to Congressional argument in support of the legislation that stated in effect that murder, whippings and lynchings were visited upon on offending citizens, and local administrations were inadequate to deal with these things. Monroe v. Pape supra also specifically held that this statute imposes civil liability regardless of the showing of a specific intent to deprive an aggrieved person of constitutional rights.

In Jackson v. Duke, 259 F.2d 3 (C.A. 5th), the Court stated that a showing by the plaintiff that he was beaten, arrested, illegally searched and deprived of liberty (by a police officer) made out a prima facie case under this Code section. The defendants had their opportunity to show that it was simply a bar room brawl between private persons and not subject to umbrella of this statute. But even if they do prove just a bar room brawl and no "official" action, under Sauls v. Hutto (supra) exercising the court's pendent jurisdiction the court can still go ahead and get your damages (assuming your guy didn't start the fight).

In your search for a definition of a violation of a constitutionally guaranteed right read Crews v. United States, 160 F. 2d 746 (C.A. 5th 1947); and also Screws v. United States, 325 U.S. 91 (1945) and particularly at se 96.

"If a man intentionally adopts a certain conduct in certain circumstances known to him and that conduct is forbidden by the law under those circumstances he intentionally breaks the law"... and if he knows that this action will or in its natural course may lead to deprivation of a citizen's constitutionally guaranteed right to life he is liable under this statute. At page 104, the Court said: The defendant law enforcement officer is subject to this statute if, ..."he either knows or acts in rec_less disregard of its prohibition of the deprivation of a defined constitutional or other federal right." And, at page 106,
"Those who decide to take the law into their own hands and act as prosecutor, jury, judge and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him."

Conclusion

You will suffer a lot of criticism if you undertake these cases. But in the end you will be rewarded. Mainly because you are right and you are the only "Remedy" that stands between the single beaten soul and the club of authority that has been misused but has had flock around it all the vast resources of the affected governmental authority. But also because who knows how many people are not beaten and are not shot because the authorities have learned, because of you, that the rewards of such action are bitter fruit.

To close on a cheerful and encouraging note, here is a verbatim quote from a letter I received after the successful conclusion of one of these cases:

“Dear Mr. Green: ... is the law enforcement officer, who together with________ , engaged in a high speed chase in order to ... We, the law abiding people, think that they would not have been doing their duty had they not attempted to stop the running car. We all know that they would not have run unless they had something to hide. The people in my county and your county, including your personal friends and neighbors are going to know of this case. We, the people, who believe that we have to stand behind our law enforcement officials are going to march on this one when it goes to court. We think a man should be indicted for murder before being sued for murder. I don't know
what color you are other than the yellow streak, but we law abiding people, both black and white,
are being sickened by the way the crooks, robbers, thieves, and especially the swindlers are being allowed to take us in every way. We still think that the law was meant to protect the innocent and punish the guilty and was not meant td allow cheap skates like you to take advantage of the innocent for personal gain. I wish I could know how many similar cases you've searched out and sued for since this particular civil rights law was passed. Very sincerely yours.."