deprivation of due process rights. Patzig v. O'Neill, 577 F.2d 841 (3d Cir. 1978). However, imprisonment following a lawful arrest may give rise to a constitutional claim. The plaintiff in Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976), cert. denied, 429 U.S. 865, 97 S.Ct. 174, 50 L.Ed.2d 145, was detained in jail by the defendant sheriff after the dismissal of charges because the warrant under which he was being held had never been properly cross-indexed. The court noted that in Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968), cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969), it had previously identified the elements of a prima facie case of false imprisonment as "(1) intent to confine, (2) acts resulting in confinement, and (3) consciousness of the victim of confinement or resulting harm." 530 F.2d at 1213. court observed that a prima facie case could be made out against a jailer even though he believed he had legal authority to detain the prisoner. The question of his good faith was a matter of defense. See also Stephenson v. Gaskins, 539 F.2d 1066 (5th Cir. 1976). McCollan v. Tate, 575 F.2d 509 (5th Cir. 1978)

stated:

We are not saying that a sheriff is under a duty to make an independent investigation as to the guilt or innocence of a person wanted under a warrant. If a warrant has issued for the arrest of an individual and the individual actually wanted under that warrant is arrested, the arresting officer has fulfilled his duty, and he will not be liable for false arrest or false imprisonment merely because the person arrested is later found to be innocent of the charges against him . . We are saying that the sheriff or arresting officer has a duty to exercise due diligence in making sure that the person arrested and detained is actually the person sought under the warrant and not merely someone of the same or a similar name.

575 F.2d at 513.

The

e.

Malicious Prosecution, Malicious Abuse of Process

The Eighth Circuit declined to determine whether a malicious prosecution infringes on protected constitutional rights in Sartin v. Commissioner of Public Safety of State of Minn., 535 F.2d 430,433 (8th Cir. 1976).

The Third Circuit, in Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977), found that facts giving rise to claims of malicious use of process (malicious prosecution) and malicious abuse of process could be the bases for section 1983 claims based on the Fourteenth Amendment right to due process:

"An abuse is where the party
employs it for some unlawful
object, not the purpose which
it is intended by the law to
effect; in other words, a per-
version of it . .
It is evi-
dent that when such a wrong has
been perpetrated, it is entirely
immaterial whether the proceeding
itself was baseless or otherwise."

567 F.2d at 1217. The court later compared malicious
use of process with malicious abuse of process:

"[M]alicious use of civil process
has to do with the wrongful initia-
tion of such process, while abuse
of civil process is concerned with
a perversion of a process after it
is issued." Therefore, if a process
is wrongfully initiated and there-
after perverted, both torts lie.
Hence, the torts are not mutually
exclusive.

567 F.2d at 1218. The court also noted that the presence or absence of probable cause is irrelevant in an action for malicious abuse of process. 567 F.2d at 1217.

The elements of the common law tort of malicious prosecution were described as follows in Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977) (Dellums I):

Malicious prosecution has four

elements: (1) The defendant must be found to have instituted a criminal

566 F.2d at 191 n. 65. In that case the plaintiff's claim for malicious prosecution appeared to be based upon the common law tort rather than the Constitution. Since there was evidence that defendant had knowingly misrepresented material facts in his meeting with the assistant United States attorneys when the decision to file informations was made, there was evidence to support the verdict against the defendant. However, the defendant was entitled to a new trial since the trial judge failed to sufficiently charge the jury that the defendant would not be liable if the decision by the assistant United States attorney to file the informations was independent of any pressure or influence exerted by the defendant. 566 F.2d at 193.

f. Defense of Good Faith

Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) established the good faith defense available to law enforcement officers charged with making an illegal search or seizure. The Court stated:

Under the prevailing view in this
country a police officer who arrests
someone with probable cause is not
liable for false arrest simply be-
cause the innocence of the suspect
is later proved
Although the
matter is not entirely free from
doubt, the same consideration would
seem to require excusing him from
liability for acting under a statute
that he reasonably believed to be
valid but that was later held uncon-
stitutional on its face or as applied.

386 U.S. at 555, 87 S. Ct. at 1218, 18 L. Ed. 2d at 295. The Court later stated:

We hold that the defense good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983. The holding does not, however, mean that the count based thereon should be dismissed. We agree that a police officer is not charged with predicting the future course of constitutional law.

[I]f the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow, even though the arrest was in fact unconstitutional.

386 U.S. at 557, 87 S. Ct. at 1219, 18 L. Ed. 2d at 296.

The law relating to a possible defense of good faith interposed by law enforcement officials percolated in the districts and in the circuits as the Supreme Court decided Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), and Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975).108 Procunier v. Navarette, a 1978 case involving prison officials, summarized the development of the common law immunity afforded government officials:

Although the Court has

recognized that in enacting § 1983 Congress must have intended to expose state officials to damages liability in some circumstances, the section has been consistently construed as not intending whole

108. See Section XI, D, 2 infra.

sale revocation of the common-law
immunity afforded government offic-
ials. Legislators, judges, and
prosecutors have been held abso-
lutely immune from liability for
damages under § 1983. Tenney v.
Brandhove, 341 U.S. 367 (1951);
Pierson v. Ray, 386 U.S. 547 (1967);
Imbler v. Pachtman, 424 U.S. 409
(1976). Only a qualified immunity
from damages is available to a state
Governor, a president of a state
university, and officers and mem-
bers of a state National Guard.
Scheuer v. Rhodes, supra. The same
is true of local school board mem-
bers, Wood v. Strickland, supra; of
the superintendent of a state hos-
pital, O'Connor v. Donaldson, 422
U.S. 563 (1975); and of policemen,
Pierson v. Ray, supra; see Imbler
v. Pachtman, supra, at 418-419.

434 U.S. 555 at 561-63; 98 S. Ct. 855 at 859-60, 55 L. Ed. 2d 24 at 30-31 (1978).

When a law enforcement officer makes a search pursuant to a warrant issued by a judicial officer, he is entitled to a judgment. Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977). Law enforcement officers are not liable for making negligent errors of law in seeking or executing 'a search warrant. Stadium Films, Inc. v. Baillargeon, 542 F.2d 577 (1st Cir. 1976) (affirmed directed verdict for police officers). A law enforcement officer who acts in good faith and in a reasonable manner in executing a search warrant issued by a judicial officer is not liable in damages upon a showing that the judicial officer erred. Commonwealth of Pa. ex rel. Feiling v. Sincavage, 439 F.2d 1133 (3d Cir. 1971).109 Law enforcement officers may rely upon a finding by a judge that probable cause exists, Kipps v. Ewell, 538 F.2d 564, 567 (4th Cir. 1976); however, this does not apply when the plaintiff alleges that the warrant was obtained by the defendant in bad faith and as a result of perjured testimony. Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir. 1974) (wiretap order).

109. See also LaBar v. Royer, 528 F.2d 548 (5th Cir. 1976).