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she complained and had no knowledge of it. The court of appeals expressly rejected the doctrine of respondeat superior and, in discussing the liability of the police chief and board members, stated:

Generally, liability for negligence arises only from affirmative action. Where, however, one has an affirmative duty to act and he fails to act accordingly, he may be held liable for his nonfeasance if his omission is unreasonable under the circumstances. Appellants have not alleged any affirmative conduct so their claim against the appellees obviously is grounded upon nonfeasance.

476 F.2d at 1275. The court noted that none of these defendants were present at the time of the incident and stated, "And to extend the general duty of these appellees to prudently select, educate and supervise police department employees to an isolated, spontaneous incident such as this would be beyond reason. 476 F.2d at 1275.

A jury verdict for $10,000 compensatory damages against a police officer and a directed verdict in favor of the chief of police were affirmed in Taken Alive v. Litzau, 551 F.2d 196 (8th Cir. 1977). The plaintiff had suffered a broken arm as she was being placed into a police car by the defendant city police officer. The court stated:

It is true that Chief Quinn admitted hearing a rumor concerning one prior incident involving misconduct on the part of Officer Litzau. However, Quinn testified that he

discussed the incident at length with
Officer Litzau and "
was quite

satisfied that there would not ever
be a recurrence of an incident of
that nature. Quinn also stated that
after assuming his duties as Chief of
Police, he worked "day in and day out"
with Litzau for several months and
was satisfied with his performance.

551 F.2d at 199. The court further noted that since
the chief of police had not learned of the accident

until after it happened, and had not caused, authorized, directed, or commanded the officer to arrest plaintiff or any other person by use of unreasonable force, plaintiff failed to prove the chief's actual involvement in the misconduct. 73

Cotton v. Hutto, 577 F.2d 453 (8th Cir. 1978) held that the district court had properly dismissed the complaint wherein the plaintiff alleged that subordinate officers of the named defendants had violated his constitutional rights. In one case plaintiff alleged that a prison guard, who was not named as a party, subjected him to a disciplinary proceeding for failure to cut a "top knot," a hair style claimed to be part of a religious purification ritual. Since the defendant warden was not alleged to have had any knowledge of or connection with the incident, the complaint did not state a claim as to him. Further, as to the other defendant, plaintiff's claim that one of defendant's subordinates had beaten plaintiff did not state a claim.

10. Ninth Circuit

In accord with the other circuits, the Ninth Circuit has held the doctrine of respondeat superior inapplicable to section 1983 claims. Milton v. Nelson, 527 F.2d 1158 (9th Cir. 1976).

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Personal participation is an essential allegation in a section 1983 claim. Bennett v. Passic, 545 F.2d 1260, 1262 (10th Cir. 1976). Kite v. Kelley, 546 F.2d 334 (10th Cir. 1976) affirmed the district court's directed verdict in favor of supervisory officials of two FBI agents who had caused plaintiff to be discharged from his employment as a result of their disclosure of investigative information. In its discussion of the applicability of respondeat superior to civil rights actions the court referred to Rizzo v. Goode: 74 "The 'affirmative link' requirement of Rizzo means to us

73. See also Sebastian v. United States, 531 F.2d 900 (8th Cir. 1976); Ailshire v. Darnell, 508 F.2d 526 (8th Cir. 1974). 74. 423 U.S. 362, 98 S.Ct. 598, 46 L.Ed.2d 561 (1976).

that before a superior may be held for acts of an inferior, the superior, expressly or otherwise, must have participated or acquiesced in the constitutional deprivations of which complaint is made." 546 F.2d at 337-38. The court felt that the affirmative link was not sufficiently established by the record to impose liability.

12. District of Columbia Circuit

Dellums v. Powell, 566 F.2d 216 (D.C. Cir. 1977), was an action by congressman Dellums and nine persons representing a class of all persons arrested on the steps of the United States Capitol on May 5, 1971, while engaged in a protest against the war in Vietnam. The claims were based on Bivens, 42 U.S.C. section 1983, and the law of the District of Columbia. On appeal the circuit court found that the evidence was sufficient to support liability on the part of police chief Wilson for false arrests, but it was insufficient as to the claims for malicious prosecution. There was evidence which would support a finding that the chief collaborated on the charge upon which arrests were to be made, and further that he advised Chief Powell against taking additional steps to insure the effectiveness of dispersal orders at a time when there was some doubt that the orders had been heard. He had retained personal operational control over all metropolitan police officers on the scene and could have withdrawn them had he thought the arrests unjustified. Therefore, there was sufficient proof of his independent involvement in the arrest process to make his liability a question for the jury to decide. However, the record revealed that he participated only in the arrest decision. There was no evidence linking him to the meeting at which it was determined that informations would be filed. The court noted that the critical event triggering liability for malicious prosecution is the filing of an information. Since Chief Wilson had not been linked with that decision, the plaintiffs had not made out a prima facie case against him and the jury award had to be vacated. The court determined that under the doctrine of respondeat superior the District of Columbia could be liable in an action brought under a Bivens theory predicated on a tortious invasion of First, Fourth, and Eighth Amendment rights, as well as interests protected

75. See section X infra.

by common law. The district had argued that relief in a Bivens action should be styled on the pattern of 42 U.S.C. section 1983 and, since suit was precluded against municipalities under Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed. 2d 492 (1961), it should not be liable under Bivens. The court rejected this argument, noting that under the 1973 amendments to the Federal Tort Claims Act the federal government is now generally responsible for the intentional torts of its law enforcement officers. Therefore, the application of respondeat superior to the District of Columbia would not be inconsistent with other federal laws. It is noted that Dellums was decided prior to Monell, supra, which held that municipalities were "persons' for purposes of section 1983, but would not be liable under respondeat superior.

E.

Constitutional Violations v. Tort
Negligence, Intent76

The landmark case of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), held that a complaint stated a cause of action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, when it alleged that police officers had broken into petitioners' home in the early morning without a search or arrest warrant, rooted petitioners from bed, made them stand naked in the living room, and ransacked every room, emptying drawers and ripping mattress covers, and then had taken one of the petitioners to the police station where he was detained on "open" charges for ten hours without being taken before a magistrate or permitted to call his family or attorney. The court of appeals affirmed the district court's dismissal for failure to state a cause of action, but the Supreme Court reversed. 77 The

76. See Comment, Section 1983 and the New Supreme Court, Cutting the Civil Rights Act Down to Size, 15 Duq. L. Rev. 49, 64 (1976). See also Comment, Remedies for Constitutional Torts: "Special Factors Counselling Hesitation," 9 Ind. L. Rev. 441 (1976).

77. The holding in Monroe that local governments were wholly immune from suit under section 1983 was overruled in the recent decision, Monell v. New York City Dept. of Social Services, 436 U.S. 656, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Supreme Court's following language in Monroe has generated considerable confusion for the district courts and the courts of appeal:

In the Screws case we dealt with a statute that imposed criminal penalties for acts "willfully" done. We construed that word in its setting to mean the doing of an act with "a specific intent to deprive a person of a federal right." We do not think that gloss should be placed on [Section 1983] which we have here. The word "willfully" does not appear in [Section 1983]. Moreover, [Section 1983] provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the ground of vagueness. Section [1983] should be read against the background of tort liability that makes a man

responsible for the natural consequences of his actions. [emphasis added]

365 U.S. at 187, 81 S.Ct. at 484, 5 L.Ed.2d at 505. It is this reference to the law of torts and the Court's indication that liability under section 1983 does not require the defendant's actions to have been willful that has thrust the lower courts into a quagmire in their attempts to distinguish between constitutional violations and torts.

The Supreme Court has subsequently indicated that constitutional violations actionable under section 1983 are distinguishable from common law tort actions but it has not clearly defined the difference between the two. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the plaintiff argued that the circulation of a flyer by the police with his name and photograph, designating him as an active shoplifter, deprived him of "liberty" protected by the Fourteenth Amendment and asserted that as a result he would be inhibited from entering business establishments for fear of being suspected of shoplifting and possibly apprehended. He further felt that his future employment opportunities would be seriously impaired. The court noted that respondent's complaint appeared to state a classical claim for defamation actionable in virtually every state court. However, plaintiff did not purport to assert a defamation claim, but instead claimed that he had been deprived of rights

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