Whitehurst v. Wright Court Opinion

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Aunui*c dAs
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834 592 F'EDERAL REPORTER, 2d SERIES

(D.I).C.), aff,d,352 U.S. gzt,.tz s.cL. 224, 1
L.Ed.zd l5? (1e56).

[2,3] Ingram contends thht it has no
a<lequate remedy at law because it has not
met the procedural jurisdictional prerequi-
sites of thc Customs Court, see iS C.f.n.
S 4.14 (1978). It is debatable whether In-
gram has filed a proper protest with Cus-
toms and, if it has, whether the protest has
bcen disposcd of aJministratively in such a
manner that Ingram is now entitle<l to in_
stitute proceedings in the Customs Court.{
Ingram suggests that any inability on its
llart to satisfy the prerequisites to Customs
Court jurisdiction has been caused by Cus_
toms's failure to abide by its own regula_
tions. This failure, Ingram says, may have
prevented it from filing a valid protest and
<lJrerated as a denial of due process..

These arguments, as well as the other
objections Ingram has interposed to avoid
payment of the duties in question, should be
addressed to the Customs Court, not to the
district court and this court of appeals. See
J. C. Penney Co. v. United Staiis Treasury
Departnent,4gg F.2d 68, 6g (2d Cir.), ceri.
denied,404 u.s. 869,92 S.Cr. 60,30 L.Ed.2d
l13 (1971). The Customs Court has full
lxrwer to rule on the constitutional and pro_
cc<lural questions Ingram has raiscrl. tWor_
gantov.n G/a.ssware Guild v. Humphrey, gg
U.S.Asr1r.D.C. g7b, ?36 F.At 6?0; 67i 72,
cert. tlenied, 3SZ U.S. 896, Z7 S.Cr. t8g, I
L.Etl.2<l 87 (1956); see, e. g., Cottman Co. v.
Dailey, 94 F.2d 85, 89 (4rh Cir. 19gS).

In sum, Ingram still has an adequate
rcme<ly in Customs Court; or it ha;l an
adcrluate remerly that it failcrl to pursu.e.
Morrnver, once Ingram's pcntling Jretition
with (lustoms has rcccivetl final rlislxrsition,
that rlccision can lx: appealc<l to thc Cus_
toms (lrrurt. .St,t, Suwanrrca Staamship Co.
v. LInitad.Sratc.s, lib4 F..Su1rgr. 1361, 1869
(Cust.Ct.lg?g). Ingram has failcrl to tlem-

4. 2il t,.s c. $ l5ri2(c) ( ll)76) Jrrovirlts:
I lrr' ('rrstorrrs ( r)ilrt slilrll n()t lt;tv(, .ltrristtrClirrrt 0l ;ril lil.lr0rr rrnloss (l) t,ttltrr a protest

has lrrcn filrd, as prescribed by,scction Sl4of rhe -l'ariff Act of 1930, as anrended, and
dcnied in accordance with the provisions of
section 515 of the Tariff Acr of I930, as
amended, or if the action relates to a decision

onstrate that it has no adequate remeriy at
, law or that Customs has Jepriv"d hi; ;i
the remedies provided him by law. It has
not presented the,,exceptional circumstanc-
es" that must exist before a rlistrict court
may exercise jurisdiction over a matter
committed to the Customs Court for resolu_
tion.

Because we are convinced that the dis_
trict court lacked subject matter jurisdic-
tion, it is unnecessary for us to discuss the
last argument pressed by Ingram in this
appeal-the propriety of the district court's
sfaV 9f discovery pending its disposition of
the jurisdictional issue. Therefore, thejudgment of the district court is' Ai-
FIRMED.

Ida Mae IVHITEHURST, etc,
Plaintiff-Appellant,

v.

Edward L. WRIGHT, Jr., etc., et al.,
Defendants-Appellees.

No. ZZ-1098.

United States Court of Appeals,
Fifth Circuit.

April 5, 1979.

Action was llrought under civil rights
statutes by a decedent's mother, aclminis_
tratrix of his estate, on a claim that a fatal
sh<xrting anrl alleged cover-up deprived her
son of rights guaranteed by constitutional
amenrlments. A directed verdict for the

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under socti()n S I (j of thc .l-ariff 
Act of I glx), as

anrr.ndr.d, tll rt,rnedies prescnbed thereln
have been oxhausted, una e) u*."pt in'it,
case of an action relating to a decision under
section 516 of rhe Tariff Act of 1g30, as
amended, all liquidated duties, charges or ex-
actions have been paid at the time lhe action
is filed.

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ts:.in



WHITEHUIIST v. WRIGHT
Clte as t02 F.2d E3,t (t970)

defendant city mayor was granted by tht, proceeding, his remark that "It bothers me
United States District Court for the Midrlle a good deal that people get sued for doing
Dislrict of Alabama at Montgome.y, ffib-il their duty" did not show such bias as to
EfG_--..,-fi;ila jury verriict was re- require his recusal upon motion. zl u.s.
turned exonerating other defendants. The C.A. g 4SS(a), (bxl).

835

n,'rly at
him of
It has

rnstanc-
,'l court

matter
resolu-

t he dis-
rurisdic-
,:uss the
in this

L court's
,ition of
)rc, the
is AF-

, t al..

,.'il rights
adminis-

,rt a fatal

'rived her
litutional
' for the

.rf 1930, as
(l therein
Il)t in the
',t, rtt ttndef
I 1930, as
r ges Or eX-
t he action

als,

Court of AJ4reals, Vance, Circuit Judge,
held that: (1) the trial judge's remarks did
not show such bias as to require his recusal
upon motion; (2) evidence failed to show
that defendant mayor knew or should have
known of any violent tendencies which
might have been possessed by the police
officer who shot decedent; (3) even if
impeachment testimony offered by plaintiff
was erroneously excluded, there was no de-
nial of substantial justice, such as would
mandate reversal, in view of the fact that a
prior inconsistent statement if allowed
would have been accompanied by an appro-
priate instruction preventing its use to
prove truth of its substance, and (4) events
occurring post obitum could form no part of
decedent's action under the 1871 civil rights
statute or the Ku Klux Klan Act, the es-
sence of a claim under either section being
deprivation of a person's constitutional
rights; after death, one is no longer a "per-
son" within constitutional and statutory
framework, and has no rights of which he
may be deprived.

Affirmed.

such pervasive bias and prejudice is shown
by otherwise judicial conduct as would con-
stitute bias against party. 28 U.S.C.A.
S 455(a), (bXl).

@luas". F49(2)
Single fact that judge's remarks were

made in judicial context does not prevent
finding of bias. 28 U.S.C.A. g a55(a), (bXl).

3. Judges e49(2)
In view of fuct that tritl jurlgc's rc-

murks appcarerl to have llccn lurscrl solely
on impressi<lns obtaincd <luring hcaring and
were not part of any prejudicial attitude
maintained hy judge prior to institution of

4. Judgea 649(l)
Statute mandating recusal in any situa-

tion in which judge's partiality might rea-
sonably be questioned interjects reasonable
man standard into determination of wheth-
er judge should disqualify himself. 28 U.S.
C.A. S a55(a).

5. Civil Rights c=13.14

In suit under civil rights statutes for
death of person shot by police officer, for
violation of constitutional rights, trial court
applied correct standard in directing verdict
for mayor after finding a failure to show
mayor's knowledge of any violent tenden-
cies possessed by such police officer, as
against contention that correct test was
whether supervisor knew or should have
known of his employee's propensity for vio-
lence. 42 U.S.C.A. SS 1983, 1988, 1986.

6. Civil Righte G=13.13(3)

Evidence that police officer had on sev-
eral occasions used force to effect arrests
and that such instances had been report€d
to his superiors as required by police regula-
tions and that he was reprimanded in one
episode in which he handcuffed suapect
when he thought she was going to strike
him failed to show that officer was violent
person or to show that defendant mayor
knew or should have known of any violent
tendencies which the officer might have
possessefl, in view also of any want of evi-
dence that mayor ever inspected or had
duty to inspect records of forcible arrests.
42 U.S.C.A. SS 1983, 1985, 1986.

7. Evidence F3l7(2)
Where plaintiff called police officer to

stand with express purpose of impeaching
him with out-of*ourt statement to effect
that ho harl fired gun, thcre was attempted)
usc of prior ineonsistcnt statcmcnt in man{
ner exceeding scope of impeachment, being/
attempt to use hearsay evirlence for suhJ
stantive purposes, and statement was propf

@lra.", c=49(l)
General rule is that bias sufficient to
ralify judge must stem from ex-T-tEffii-



ri36 592 T'EDI]IIAL REPORTER, 2d SERIT]S

crly exclurlc<|. Flxl,ItqlglF)virl. rult.s 103,
6'{[,_!! l(ql_ (dI l)( A)/, 802,--B-- u-sx A.

8. Federal Courts 6901
Even if impeachment testimony was

crronrxrusl.y cxt:lu<lcrl, therc was no tlcnial
of substitntilrl justicc, such as woulrl man-
rl:rtc rcvcrs:rl, in vicw of fact that prior
inconsistcnt st:rtement if allowerl woul<l
have lleen accompanierl by appropriate in-
structi<ln preventing ils use to prove truth
of iLs subsLance. l'ed.Rules Civ.proc. rule
61'-4 u.S-A& Fdx@Gmutu- ros,
z8 u.s.c.a.

Donald V. Watkins, Tyrone C. Means,
Montgomery, Ala., for plaintiff-appellant.

Robert C. Black, William I. Hill,II, Mont-
gomery, Ala., for defendants-appellees.

Appeal from the United States District
Court for the Middle District of Alabama.

9. Civil Rights 613.3(l)
Conspiracy e-7.6

Events occurring post obitum could
form no part of decedent's action under
1871 civil rights statute or Ku Klux Klan
Act, essence of claim under either section
being deprivation of a person,s constitution-
al rights; after death, one is no longer
"person" within constitutional and statuto-
ry framework, and has no rights of which
he may be deprived. 42 U.S.C.A. $S 1988,
1985; U.S.C.A.Const. Amends. b, 6, lB, 14.

See publication Words and phrases
for other judicial constructions and
definitions.

10. Civil Rights e,13.3(l)
Wherc events of allcgcd cover-up took

place after rlecedent had been shot and
killed by police officer, such events did not
constitute <leprivation of decedent,s consti-
tutional rights for which plaintiff stated
claim. 42 U.S.C.A. SS 1983, 1985; U.S.C.A.
Const. Amcn<I. 14.

l. 'l'he matter was presented to both federal and
state grand juries, but no indictment was re-
turned.

2. Title 42, U.S.C. S 1983 provides
Every person who, under color of anv stat-

ute, ordinance, regulation, custom, o, ,augu,
of any State or Territory, subjects, o. cuuJ".
to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privi-
leges, or immunities secure<.t by the Conititu-
tion antl laws, slr;tll lrr-, liable to th(, party
injun,d llr iln a(.ti()n tt llrw, surt in equiiy, or
ollrtr Jrropcr prrx:r.t.dirrg for rt,drcss.'I'itlo 42, tJ.S.(;. $ lg85 provi<Ics

lf two or more persons in any State or'ferritory conspire for the purpose

Before MORGAN, RONEY and VANCE,
Circuit Judges.

VANCE, Circuit Judge:

Bernard Whitehurst was g'unned down by
Montgomery, Alabama police who mistook
him for a suspect in a local robbery. The
falal shot was fired by police officer Donald
Foster, who claims that Whitehurst shot
first. Although none of the officers in the
vicinity found a g'un near the body, a detpc_
tive subsequently called to the scene spot_
ted a gun twenty-seven inches from the
victim. It was laier discovered that the
gun had been confiscated by police in a
drug raid occurring over one year prior to
the Whitehurst shooting. This odious se_
quence of events shook the entire Mont_
gomery law enforcement community and
precipitatcd the resignation of the citv's

r

".fA19lfg:I!gl This civil righrs ac_
tion resulted.l

Ida Mae Whitehurst, mother of the de-
ceased and administratrix of his estate,
brought suit under 42 U.S.C. SS 199g, 19g5
and 1986,2 claiming that the fatal shooting

of depriving, cither directly or indirectly, any
. person or class of persons of the equal pro-

tection of the laws, or of equal priviliges and
immunities under the laws; . if one
or more persons engaged therein do, or causeto be done, any act in furtherance of the
object of such conspiracy, whereby another
is injured in his person or property, or de-
prived of having and exercising any right or
privilege of a citizen of the United StatJs, the
party so injured or deprived may have an
action for the recovery of damages, occa.
sioned by such lnjury or deprlvation, egalnrt
ony one or more of thc coneplratora,'l'iLle 42, U.S.C. g tgfi6 provitles

Every person who, having knowledge that
any of the wrongs conspired to be done, and
mentioned in section lgg5 of this title, are

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'n(r C. Means,
,rtiff-appellant.

Hill, II, Mont-
-appellees.

'itates District
'[ of Alabama.

' and VANCE,

unned down by
rl who mistook
robbery. The
officer Donald

'hitehurst 
shot

officers in the
body, a detec-

:he scene spot-
ches from the
ered that the

try police in a
{,year prior to
['his odious se-

' entire Mont-
'rmmunity and
of the city's

Lor and several
,:ivil rights ac-

her of the de-
of his estate,
. ss 19$, 1985

fatal shooting

,rr indirectly, any
,rf the equal pro-
ral privileges and

. if one
rein do, or cause

rtherance of the
ivhereby another
property, or de-

sing any right or
'nited States, the
,d may have an
damages, occa-

,rivation, against
.pirators.
's

I knowledge that
I to be done, and
of this title, are

wHITllHtlRST v. 1VRIGHT 8Bz
(llte as 502 F.2d 83{ (1e70)

and alleged cover-up, accomplishtxl under On appeal, Mrs. Whitehurst alleges that
color of state law, deprived her son of the trial judge erred in refusing to recog-
rights guaranteed by the fifth, sixth, thir- nize the actionability of the cover-up claim
teenth and fourteenth amendments to the under $$ 1983 and 1985 and in using that
United States Constitution. The district refusal as a basis to grant summary judg-
court found that her claim under $ 1983 for ment in favor of the defendants who inves-
the purported cover-up did not exist, since tigated Whitehurst's death. She also con-
if it took place at all, it was subsequent to tends that the district judge erred in direct-
Whitehurst's death, and consequently could ing the verdict in favor of the mayor; in
not have deprived him of any rights. The failing to recuse himself; and in refusing to
court also determined that no claim was admit certain evidence offered by plaintiff
stated under S 1985 because any conspiracy to impeach her own witness.t After con-
to violate Whitehurst's civil rights ended sidering the record and arguments ad-
with his death and could not be retroactive- vanced by both parties, we conclude that we
ly established. The court then granted must affirm.
summary judgment in favor of all defend-
ants involved in the investigation of the
shooting. A directed verdict was granted
in favor of James Robinson, mayor of Mont-
gomery, who had been charged with gross
negligence in hiring Foster and in retaining
him on the police force. A jury returned I
verdict exonerating Foster and his superi-
ors, Ed Wright, public safety director, and
Charles Swindall, chief of police, from lia-
bility for Whitehurst's wrongful death.

about to be committed, and having power to
prevent or aid in preventing the commission
of the same, neglects or refuses so to do, if
such wrongful act be committed, shall be
liable to the party injured, or his legal repre-
sentatives, for all damages caused by such
wrongful act, which such person by reasona-
ble diligence could have prevented

3. Also alleged as error is the failure of the
lower court to give certain jury instructions.
we find this contention to be without merit.

/ + )'fnat section requires a judge to recuse him-
\-/self "[w]here he has a personal bias or preju-

dice concerning a party . ." 28 U.S.C.
s 455(b)(l).

5. The statement was made in the following
context:

THE COURT: Now, do you have
any evidence that [the police chief and public
safety director] participated in or knew of the
shooting?

MR. WATKINS: Not fully at this time be-
cause-(interrupted)

THE COURT: Well, it may be a little pre-
mature for me to ask that question, I realize
that.

MR. WATKINS: Discovery has been halt-
ed in the case.

THE COURT: Do you have any evidence
that tends to show that thev knew that the

Motion for Recusal

Appellant filed a motion for recusal un-
der 28 U.S.C. S 455(bX1),. claiming that the

chief and public safpty rlirect^r ao defend-
ants.r The bias was presumed from the trial
judge's remark that "it bothers me a good
deal that people get sued for doing their
dutY." r

man [the police chief and public safety di-
rector] were pursuing-that their underlinga
were pursuing was not the man described to
the police officers, that his features were
different, anything of that?

MR. WATKINS: You are talking about at
the time they were riding towards the scene
they knew thls was not the person? No, sir, I
wouldn't say that. (Pause in time) your
Honor, these questions-{interrupted)

THE COURT: I just don't believe that you
can tie somebody into a crime-l don't mean
a crime, I meai a cause of action, after it's all
over such aB you are trylng to do with these
two people. They had a duty to pursue a

. criminal and lnsofar as we know, and I think
we know a great deal about this csse from
what I have read in the newspaper, the peo-

. ple who were not participating directly in the
chase thought that they were pursuing a
criminal. I think Chief Wright and Chief
Swindall did.

rHe i:OUnr: . you are trying to
tie two people into a wrongful death who
really didn't do anything unlawful but were
actually firmly pursuing the duties that the
law placed on them, and you are sulng these
fellows, and that's all you have. And this ls
a dangerous situation.

MR. WATKINS: The only point we would
make is that we will submit to the Court that



838 592 FEDERAL REPORTER,2d SERIES

U-31 Although the general rule is that
bias sufficient to rlisqualify a judge must
stem from extrajudicial sources, see, e. g.,
United States y. Grinnell'Cr.rrp., 384 U.S.
563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966);
Curl v. International Busrness Machines
Corp' 517 F.Z<I ZtZ (5th Cir. 1975), cert.
denied, 425 U.S. 943, 96 S.Ct. 1683, 48
L.Ed.zd 187 (1976), this court has recog-
nized that

there is an exception where such perva-
sive bias and prejudice is shown by other-
wise judicial conduct as would constitute
bias against a party.

Davis v. Board of School Commissioners of
Mobile County, SlT F.2d 10,14, 1051 (5th Cir.
1975), cert. denied, 425 U.S. 944, 96 S.Ct.
1685, 48 L.Ed.zd 188 (1976). Thus, the sin-
gle fact that the judge's remarks were
made in a judicial context does not prevent
a finding of bias. We cannot conclude,
however, that the remarks made here evi-
dence any bias, let alone the "pervasive
bias" that must lrc shown to disqualify a
judge for his statements made in a judicial
setting.

The trial judge merely commented on the
lack of evidence presented by the plaintiff
to show these defendants' participation in
the Whitehurst shooting. The remarks ap-
pear to have been based solely on impres-
sions obtained during the hearing and were
not part of a prejudicial attitude main-
tained by the judge prior to the institution
of the proceeding.

t4l Appellant's position is not aided by
28 U.S.C. S a55(a), which mandates recusal
in any situation in which the judge's par-
tiality might reasonably be questioned.
This section interjects a reasonable man
standard into the determination of whether

the cause of action does not stop at the
death, and when you have individuals who
are trying to defeat the cause of action by
covering up what actually transpired at the
death scene thrn that's a further extinuation
[sicl of the consl>iracy. And we think that
evitlencc will show that tltcse people activcly
tricd to defeat the circumstanccs.

THE COTJRT: Well, the purpose of the
conspiracy as you allcge it was effected be-
fore these people got into the conspiracy, as I
see it. The purpose of the conspiracy was to

the judge should disqualify himself. parr-
ish v. Board of Commissioners of Alabama
State &ar,52,1F.u 98 (bth Cir. 19?S), cert.
denied, 425 U.S. 944, 96 S.Ct. 168b, 48
L.Ed.2d 188 (1976). See generally, tB C.
Wright, A. Miller & E-=ooprr-lEd,rel
Pr ).

believe that the trial judge was biased in
this instance. The judge refused to grant
the defendants' motion to dismiss and gave
plaintiff the opportunity to develop the evi-
dence in her case against them. The trial
judge displayed no bias and none can be
infemed.

Directed Verdict
The trial court granted Mayor James

Robinson's motion for directed verdict after
finding that the plaintiff failed to show the
mayor's knowledge of any violent tenden-
cies possessed by Officer Foster. Appellant
contends that this is an erroneous state-
ment of the standard to be applied in deter-
mining whether supervisors are guilty of
gross negligence in hiring and maintaining
dangerous employees on their staffs.

t5l Mrs. Whitehurst asserts that the
correct test is whether the supervisor knew
or should have known of his employee's
propensity for violence, citing Sims v. Ad-
ams,537 F.2d 829 (Sth Cir. 1976) as support.
The Sims opinion, however, is of little help
to appellant's contention. That case re-
versed a district court's dismissal for failure
to state a claim, Fed.R.Civ.P. lAbX6). Af-
ter reviewing the pertinent law in the area,
the court found a claim to exist when a
supervisor breaches his duty "to control a
policeman's known propensity for improper
use of force." Sims, supra, at,832 [empha-

deprive Whitehurst of his life, according to
your allegation. Now, that conspiracy had
been effected before Wright and Swindall
ever got into the conspiracy according to
your allegations, as I understand lt. Now, if
there is some way you can amend that so as
to get them in it is my duty to let you do it, as
I understand the law, but I don't think people
ou8ht to be sued lightly. To be sued within
itself is a pretty severe punishment and lt
bothers me a good deal that people get sued
for doing their duty.

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himself. Pam-
,,rs of Alabama
(lir. 1975), cert.
s.cr. 1685, 48
enerally, 73 C.

)ooper, Federal
i 3542 (1e75).
;onable man to

was biased in
,fused to 6Jrant
smiss and gave
,levelop the evi-
irem. The trial
,d none can be

rct

Mayor James
rxl verdict after
,led to show the
violent tenrlen-
,ter. Appellant
rroneous state-
rpplied in deter-
; are guilty of
nd maintaining
ir staffs.

serts that the
rutrlervisor knew
his employee's
rg ^Sims v. Ad-
)76) as support.
is of little help
Th:rt case re-
issal for failure
'. labx6). Af-
aw in the area,
, t'xist when a
i "to control a
y for improlrcr
at 8Q2 [empha-

rrfe. according to
: conspiracy had
lt and Swindall
,.y according to
.tarrd it. Now, if
rrrrcnd that so irs
,) k,t you <Il it, rrs
,rrr't think pr.ollL.
,r lre sued within
,rrishment and it
t people gct sued

WIIITEHURST v. 1VRIGHT 839
Clte ai 502 F.2d 834 (1970)

sis suppliedl. The court did not mention of forcible arrests were filed in a room
whether a claim existed if a supervisor down the hall from the mayor's office and
should have known of his employee's violent that the mayor had access to those files.
nature. We have.been unable to find any She does not allege, however, that Robinson
authority for appellant's proposition. In- ever inspected or had a duty to inspect the
deed, a review of several similar cases leads files. After considering the evidence thus
us to conclude that the trial judge applied presented, we determine that the directed
the correct standard. Chestnut v. City of verdict was properly granted.
Quincy,513 F.zd 91 (sth Cir. 1975); Buss v.

Ratliff,538 F.2d ?99 (8th Cir. 1976), cert.
denied, 429 U.S. 1041, 97 S.Ct. ?40, 50

L.Ed.% 753 (1977).

t61 Even if we were to assume that
appellant's statement of the applicable
standard is correct, we are unable to find
that the trial court erroneously directed the
verdict. ln Boeing Co. v. Shipman, 4ll
F.zd 365 (5th Cir. 1969), this court an-
nounced that a directed verdict would be

sustained if, based on all the evidence
presented, reasonable men would have been

unable to arrive at a contrary verdict. Not
only did plaintiff fail to offer any proof
that Foster was a violent person, but she

also failed to show that Mayor Robinson
knew or should have known of any violent
tendencies Foster may have possessed.

Mrs. Whitehurst relies heavily on the fact
that Foster had on several occasions used

force to effect arrests and that those in-
stances had been reported to Foster's supe-

riors, as was required by police regulations.
These reports, however, only showed that
Foster used sufficient force to apprehend
the suspects. He was reprimanded in only
one episode in which he handcuffed a sus-
pect when he thought she was going to
strike him.

Mrs. Whitehurst also failed to show that.
Robinson "should have known" of these ar-
rest reports. She submits that the records

6. The following colloquy took place prior to the
direct examination of Humphrey:

Impeachment of Plaintiff's Witness

gun, q!0 Mrs. Whltelurst was aware that

that he had fired the gun.'

While it is niT-proper
impeach his own witnes

impeachment by prior ind6-rsist€nt state-

Durham, {44

MR. WATKINS: . we expect the
evidence to show that Mr. Humphrey actual-
ly retrieved the gun from the scene and has
reported to a J. C. Cunningham that he
cher:ked the gun at thot polnt, sow thot lt hltd
n()t bc('n firerl antl fired the gun, ono round,
s() th&t the gun would nl)penr t(J hnvt, been
fired at some point between the time he re-
trieved the gun at the scene and the time he
arrived with the gun at police headquarters.

t?l Mrs. Whitehurst contends that the
trial court erroneously refused to allow her
to impeach her own witness, in violation of
Fed.R.Evid. 60?. The witness, Detective
Cecil Humphrey of the Montgomery Police
Department, was called solely to establieh
whether he had fired the single spent round
in the gun found next to Whitehurst's body.
Humphrey denied that he had fired the

ment may not be permitted where em-
ployed as a mere subterfuge to get before
the jury evidence not otherwise admissi-

is hearsay and is generally inadmissible for
substantive purposes. Fed.R.Evid. 801(c),
802.7 Mrs. Whitehurst asserts on app,eal

MR. BLACK [defense counsel]: You deny
that, don't you?

MR. HUMPHREY: That's right, I don't
know what he is talking about.

MR. WATKINS: Then we would like to
call J. C. Cunnlngham behlnd hlm.

7. Because the rtatement war offered only lor
lrnpeachment purposer, we make no determl-
nation as to its admisslbllity under Fed.R.Evld.
$ 803(24). But cf. Fed.R.Evrd. 80r(d)(l)(A)
(prior inconslstent statement given under oath

I

the

l"ct,,f

he would so

express

ble.

United
. 19?5). See State of Mississippi



840 592 I.'F]DERAL RDPORTT]R, 2d SERIES

that she would have calle<l Lt. Cunningham
"to establish Humphrey's role concerning
the pistol firing ." To use a prior
inconsistent statement in that manner ex-

. cccds the scope of imJreachment, and is an

\ attempt to usc hearsay evidence for sub-

) stantive purposcs. Wc do not helieve that

1 the rules of evirlcnce csl)ousc such a revolu-
) tionary approach to circumvent the tradi-

1 
tional principles of hearsay.

' t8l Even if we were to assume that the
impeachment testimony was erroneously
excluded, the error does not mandate rever-
sal in this case. Reversal is not required
unless the lower court's action is inconsist-
cnt with substantial justice. Fed.R.Civ.P.
61; Fed.R.Evid. 103. Here, Mrs. White-
hurst suffered no prejudice from the refus-
al to allow her to impeach her own witness.
Had the prior inconsistent statement been
allowed, it would have been accompanied by
an appropriate instruction to the jury that
the statement could not be used to prove
the truth of its suhstance, but only to de-
stroy the credibility of the witness. Thus,
the only harm suffererl by Mrs. Whitehurst
wasth6orrffi
ness she called could not be believed. Sub-
stantral Justlce was not denled by the exclu-
sion of such evidence.

Actionability of the Cover-up

t9] The trial court correctly ruled that
the events occurring post obitum could
form no part of the deceased's 42 U.S.C.

nation concern

The fact that the gun found next to White-
hurst's body had been confiscated in a prior
drug raid was brought before the jury as proof
that Whitehurst could not have fired first, and
thus was wrongfully killed. This apparently
did not affect the outcome of her wrongful
death action.

Neither party has pointed to any case that
recognizes or refuses to recognize the civil
rights of il corl)s(.. Aplx.llecs' hrief, howevcr,
drx.s call t() our ltlcntiort ltor, v. Wtt<k,, 4ll)
1,.S. I 13, l|3 S.(lt. 7ol-r, 35 l..l':d.2d 147 (1973),
which found that a fetus is not a person under
the l4th amendment and has no rights thereun-
der. From that principle, appellees forcefully
argue that if a being capable of sustaining life

S 1983 or $ 1985 action. The essence of a
claim under either section is the deprivation
of a person's constitutional rights. Here,
the events of the alleged cover-up took
place after Bernard Whitehurst had been
shot and killed.t No allegation was made
that any conspiracy to kill Whitehurst or to
cover up the event existed before the shoot-
ing took place. After death, one is no long-
er a person within our constitutional and
statutory framework, and has no rights of
which he may be deprived.' A claim in this
instance was properly denied.

Despite the inherent illogic of recognizing
a claim for deprivation of a corpse'g
"rights," Mrs. Whitehurst advances policy
reasons for recognizing a claim in this in-
stance. She notes two cases that have rec-
ognized a cover-up claim as the basis for
$ 1983 actions. Hampton v. City of Chica-
go, Cook County, Illinois, 4U F.23 602 (?th
Cir. 1973), cert. denied, 415 U.S. 917, 94
S.Ct. 1413, 39 L.Ed.2d 471(797$; Bargain-
er v. Michaf 233 F.Su1>p. 270 (N.D.Ohio
1964). Although both of these cases were
brought by the persons against whom the
cover-up was effecled, Mrs. Whitehurst
submits lhat Brazier v. Cherry,293 F.2d 401
(Sth Cir.), cert. denied,368 U.S. 921, 82 S.Ct.
213, 7 L.Ed.% 136 (1961) recognized that
those who die as a result of police brutality
should be accorded the same rights as those
who merely suffer physical injury. Brazier,
however, was concerned with whether vio-
lations of civil rights causing death give
rise, under S 1983, to wrongful death ac-

in the future is not a person, a fortiori, a
corpse, having no potential for life is not a
person within the protection of our constitu-
tion.
The argument that a corpse has no civil rights
is further strengthened by the treatment of
actions involving interference with dead bodies,
e. 9., mutilation, Palmquist v. Standard Acc.
Ins. Co., 3 F.Supp. 358 (S.D.Calif.lg33); inter-
ference with burial, Brown Funeral Homes &
Ins. Co. v. Baughn,226 Ala.66l, 148 So. 154
(1933); disturbance of the burial site, Bessemer
l.and & Improvement Co. v. Jenkins, I I I Ala.
l3l-r, 18 So. 565 (1895). Although a cause of
o(:tlon exlsts ln euch sltuatkrn. the clalm be-
longs to the survlvor of the deceased. lf the
corpse were an entity capable of possessing
rights, the action would. belong to him or to his
personal representative.

crea
ister
tain
the

tion
sust
sur!
tive
full
actir
stat,

tr
fusi
t'fos

dcal
dor
er-u
crin
the
whe
cons

tutir
eda
that
that

A

NA'

8gu

10.
s.,
Cr
fo

L

J,

9.

II

-q

be used substant when decla
at trial and is



KNABE v. NATIONAL SUPPLY DIV. OF ARMCO STEEL 841

The essence of a
is the deprivation
:tl rights. Here,
tl cover-up took
ehurst had been
lation was made
Whitehurst or to
before the shoot-
h, one is no long-
rnstitutional and
has no rights of
e A claim in this
red.

,5ic of recognizing
r of a corpse's

advances policy
claim in this in-

.es that have rec-
as the basis for
v. City of Chica-

184 F.2d 602 (?th
115 U.S. 917, 94
(1974); Bargain-
,. 2?0 (N.D.Ohio
Lhese cases were
gainst whom the
Mrs. White hurst
'ny,fr3 F.2<1401

u.s.921,82 S.Cr.
r recognized that
,f police bmtality
rre rights as those
I injury. Brazier,
:'ith whether vio-
,rsing death give
rlng{ul death ac-

'rson, a fortiori, a
rl for life is not a
,)n of our constitu-

'has no civil rights
the treatment of

'e with dead bodies,
t t'. Standard Acc.

I ).Calif. 1933): inter-
, Funeral Homes &
a. 661, 148 So. 154
,urial site, Eessemer
'.'..lenkins, lll Ala.
Ithough a cause of
lion, the clalm he-
,r, deceased. lf the
,able of possessing
,)ng to him or to his

Clte as 502 F.2d 8,ll (1070)

tions as well as whether claims for damages machinery, seeking to recover for injury to
sustained during the decedent's lifetime their dairy business as a result of water
survive in favor of his personal representa- pollution caused by the manufaeturer. The
tive. We concltrled that in order to give United States District Court for the East-
full effect to the Civil Rights Act, such ern District of Texas, Joe J. Fisher, J., set
actions must be recognized if applicable aside a jury award of g50,000 in exemptary
state law so provides.lo Brazier did not
creare any new craims where none ha<r ex- 3:::::-::j-".Y::1i'u*ent 

against the

istcd bcfore; it merely recognizcd that cer- manufacturer for compensatory damages in

tain civil rights actions survive the <ieath of the amount of $76'800' The dairy farmers

the victim. appealed, seeking reinstatement of the ex-

trol Mrs. whitehurst argues rhat in re- :fflT[rg1l:-"fi""63,,T:rffiil:il'[:::
fusing to recognize a claim here, we will Circuit Judge, held that: (1) applying the
"foster police misconduct subsequent to the federal standard for upholding-rerai&s to
death of a victim of police brutality"' we the Texas standard for evidence suffieient
do not agree. Our holding is not that cov-
er-up of a wrong{ul death is without civil or |] 

t^'10^?I.1Ti:" 
I 

exemprarv oamases

criminal effect. The question presented in in a pollution case' there was evidence of

Lne courr Derow ano ln rnls cou* was such quality and weight that reasonable

'ing after his deathwneLner evenls o".rr.iro ;;;r-il;";il and fair-minded persons in the exercise of

constituted a deprivation of her son's consti- impartial judgment might reach different

tutional rights ior which plaintiff has stat- conclusions as to whether the manufactur-

ed a claim. It was on this precise question er's managerial decisions were made wholly

that the trial court ruled, and we conclude without regard and with conscious indiffer-
that its ruling was correct.

AFFIRMED.

Lawrence KNABE, Sr. and l,awrence
Knabe, Jr., Plaintiffs'APPellants

Cross-Appellees,

Y.

NATIONAL SUPPLY DIVISION OF

ARMCO STEEL CORPORATION,
Defendant-Appellee Cross-

Appellant.

No. 77-1251.

United States Court of APPeals,

Fifth Circuit.

April 5, 1979.

Dairy f:trmcrs llr<lught rlivcrsity suit
ngtinst corlxrratc mtnufacturcr of hcavy

I0. In Robertson v. Wegmann, 436 U.S. 584, 98
S.Ct. 1991, 56 L.Ed.2d 554 (1978), the Supreme
Court held that state survival law is to be
followed in determining whether pending

ence to the rights of the dairy farmers; (2)
the jury's award of exemplary damages was
reinstated; (3) the record adequately sup-
ported the award of damages for diminish-
ed productivity of dairy cattle, and (4) un-
der the circumstances, recovery of damages
both for the decline in market value of the
dairy cattle and for lost productivity did not
constitute double recovery.

Reversed in part and affirmed in part.

1. Damages @91(l)
Under Texas law, exemplary damages

cannot be awarded solely on the basis of a
showing that the act causing injury was
unlawful.

2. Federal Civil Procedure e2142, 2608

In diversity cases, federal courts apply
the federal rather than the state standard
for rlctcrmining whcther evidence is euffi-
cient to rlcfeut motions for a directcd ver-

$ 1983 actions survive in favor of the dece-
dent's representative. That holding presents
no issues in the case sub judice.