Whitehurst v. Wright Court Opinion

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834 592 }'T|I)I.]RAL RI]PORTER, 2d SI]RIDS

(D.D.C.), aff'd,352 U.S. 921, 77 S.CL. nA, I
L.Erl.2d 157 (1956).

[2,3] Ingram conten<ls that it has no

arlcquate remcdy at law because it has not
met thc procedural jurisdictional prerequi-

sites of thc Customs Court, see 19 C.F.R'

$ 4.14 (19?8). It is debatable whether In-
gram has filed a l)roper protcst with Cus-

toms anrl, if it has, whether the protest has

been rlisposed of a.lministratively in such a

manner that Ingram is now entitled to in-
stitute proceeding's in the Customs Court.r
Ingram suggests that any inability on its
part to satisfy the llrerequisites to Customs

Court jurisdiction has been causerl 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

operated as a denial of due process.

These arguments, as well as the other

objections Ingram ha^s interposed to avoid

payment of the duties in question, should be

addressed to the Customs Court, not to the
<listrict court and this court of appeals. See

J. C. Penney Co. v. United States Treasury
Deparlnent,43g F.2d 63, 68 (2d Cir.), cert.

denied,4O4 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d

113 (19?1). The Customs Court has full
power to rule on the constitutional and pro-

cedural questions Ingram has raised. Mor-
gantown Glassware Guild v. Humphrey,9S
U.S.A1r1I.D.C. 375, 236 F.2d 670, 671--72,

cerL. denied, 352 U.S. 896, 77 S.Ct. 133, 1

L.Erl.2d 8? (1956); see, e. g., Cottman Co. v.

Dailey, 94 F.zd 85, 89 (4th Cir. f938).

In sum, Ingram still has an adequate

remerly in Customs Court; or it harl an

arlequate remerly that it failctl to pursup.

Moreovcr, once Ingram's pcntling petition
with Customs has received final tlisposition,
that rlccision can be appealetl to the Cus-

toms Court. Sce Suwannee Steamship Co.

v. IIniLtxl .Statc.s, 354 F.Supp. 1361' 1369

(Cust.Ct.11)?3). Ingrtm has failcrl to rlcm-

4. 2tt tJ.S.(1. ti l5l{2(c) (lf}7(i) provitlcs:
'l lrr. ('ustottts (lrttrrt sltirll llr)t ll;tv(' itrrisdit

li0n ol an aclion unlt'ss (l) ('lthor il protost
has been filed, as prescribed by section 514

of the Tariff Act of 1930, as amended, and
denied in act'ordance with the provisions of
section 515 of the Tariff Act of 1930, as

amended, or if the action relates to a decision

onstrate that it has no adequate remedy at
law or that Customs has deprived him of
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 C,ourt for resolu-

tion.

Because we are convinced that the dis'

trict court lacked subject matter jurisdic'

tion, it ig unnecessary for us to discuss the

last argument pressed by Ingram in this
appeal-the propriety of the district court's
stay of discovery pending its disposition of
the jurisdictional issue. Therefore, the
judgment of the district court is AF-
FIRMED.

Ida Mae WIIITEHURST, etc.,

Plaintiff-Appellant,

Y.

Edward L. WRIGHT, Jr., etc., et al.,

Defendants-Appellees.

No. 77-1098.

United States Court of Ap1rcals,
Fifth Circuit.

April 5, 19?9.

Action was brought under civil rights
statutes try a decedent's mother, adminis-

tratrix of his estate, on a claim that a fatal
shooting antl alleged cover-up deprived her

son of rights guaranteed by constitutional
amendmcnts. A tlircctcd verdict for the

turrder section 516 of the'l'ariff Act of 1930, as

nrnrndctl, nll rcrncdies proscribcd thorein
have hccn txltzrusted, and (2) exc('pt in the

case of an action relating to a decision under
section 516 of the Tariff Act of 1930, as

amended, all liquidated duties, charges or ex'
actions have been paid at the time the action
is filed.

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WHITEHURST v. WRIGHT
Clte a3 602 F.2d t3{ (1070)

defendant city mayor was granted by thc proceeding, his remark that "It bothers me
United States District Court for the Mid<lle a good deal that people get sued for doing
District of Alabama at Montgomery, Robert their duty" did not show such bias as to
E. Varner, J., and a jury verdict was re- require his recusal upon motion. 28 U.S.
turned exonerating other defendants. The C.A. $ a55(a), (bX1).
Court of Appeals, 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.

l. Judgee e49(l)
General rule is that bias sufficient to

disqualify judge must stem from extrajudi-
cial sources, but there is exception where
such pervasive bias and prejudice is shown
by otherwise judicial conduct as would con-
stitute bias against party. 28 U.S.C,A.

$ 455(a), (b)(1).

2. Judges e49(2)
Single fact that judge's remarks were

made in judicial context does not prevent
finding of bias. 28 U.S.C.A. S 455(a), (b)(1).

3. Judgee e49(2)
In vicw of fact that trial jurlge's nr-

marks allpcarcrl to havc lx:cn base<l nolcly
on impressions obtained during hearing and
were not part of any preju<licial attiturlc
maintained hy judge prior to institution of

835

rurdy at
trim of
It has

rrstanc-

L court
rnatter
resolu-

he dis-
rrisdic-
russ the
in this
t'ourtts

rLion of
'c, the
rs AF-

t al.,

I rights

'rlminis-
a fatal

,,crl her
tutional
for the

I 193O, as

' t her(.in
t)l in the
rrr ttnder
l{r:}(}, as

tos or ex-
lr('action

, ts,

4. Judgee F49(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 Rishts €=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. $$ 1983, 1985, 1986.

6. Civil Rights c=13.13(3)

Evidence that police officer had on sev-
eral occasions used force to effect arrests
and that such instances had been reported
to his superiors as required by police regula-
tions and that he was reprimanded in one
episode in which he handcuffed suspect
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
possessed, 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 e3l7(2)
Where plaintiff called police officer to

stand with express purpose of impeaching
him with out-of-court statement to effect
that he had fired gun, thcrc waa attempted
usc of prior inconsintent statcmcnt in man-
ner exceeding scope of impeachment, being
attempt to use hearsay evidence for sub-
stantive purposes, and statement was prop-



836 592 I.'I'DERAL RT]PORTER, 2d SERIES

erly cxcluded. Ferl.Rules Evirl. rules 103,
607, 801(c), (rl)(lXA), 802, n U.S.C.A.

8. Federal Courts @-901

Even if impeachment testimony was
erroneously cxclurlc<I, there was no denial
of sullstantial justice, such as would man-
date rcversal, in view of fact that prior
inconsistent statement if allowed would
have bcen accompanied by appropriate in-
struction preventing iLs use to prove truth
of its substance. Fed.Rules Civ.Proc. rule
61, 28 U.S.C.A.; Fed.Rules Evid. rule 103,
28 U.S.C.A.

9. Civil Rights 613.3(l)
ConsPiracY eJ.$

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
lleing 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 dcprived. 42 U.S.C.A. S$ 1983,
1985; U.S.C.A.Const. Amends. 5, 6, 13, 14.

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

10. Civil Rights 613.3(l)
Where events of alleged cover-up took

place after decedcnt had been shot and
killed by police officer, such events did not
constitute deprivation of decedent's consti-
tutional righLs for which plaintiff stated
claim. 42 U.S.C.A. S$ 1983, 1985; U.S.C.A.
Const. Amend. 14.

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

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

ute, 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 dcl)rivation of any rights, privi-
k,ties, or imnrunities set:rrrc<l hy the (lonstitu-
tion and laws, slrlrll be liahle io the party
injurc<J in an action at lilw, suit in equity, or
{)llrcr l)r()JX.r prrrcrr.ding for rcdrcss.

'litk: 42, U.S.C. S 19t35 provides
If two or m()re persons in any State or

'It'rritory conspire for the purpose

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.

Before MORGAN, RONEY and VANCE,
Circuit Judges.

VANCE, Circuit Judge:

Bernard Whitehurst was gunned down by
Montgomery, Alabama lxrlice who mistook
him for a suspect in a local robbery. The
fatal shot was fired by police officer Donald
Foster, who claims that Whitehur^st shot
first. Although none of the officers in the
vicinity found a gun near the body, a detec-
tive subsequently called to the scene spot-
ted a gun twenty-seven inches from the
victim. It was later 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
precipitated the resignation of the city,s
mayor, its public safety director and several
of its police officers. This civil rights ac-
tion resulted.l

Ida Mae Whitrehurst, mother of the de-
ceased and administratrix of his estate,
brought suit under 42 U.S.C. SS 1983, f98b
and 1986,2 claiming that the fatal shooting

of depriving, either directly or indirectly, any
person or class of persons of the equal pro-
tection of the laws, or of equal privileges and
immunities under the laws; if one
or more persons engaged therein do, or cause
to 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
pnvilege of a citizen of the United States, the
party so injured or deprived may have an
action for thc recovery of damages, occa.
sioned by such injury or deprivation, against
ony one or more of the consplrators.

'fitle 42, U.S.C. S lg86 provides
Every person who, having knowledge that

any of the wrongs conspired to be done, and
mentioned in section 1985 of this title, are

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C. Means,

''f-appellant.

,ll, II, Mont-
,1rcllees.

Les District
,f Alabama.

rrl VANCE,

,etl down by

"ho mistook
lrbery. The
^icer Donald
ehurst shot
'icers in the
rly, a detec-
scene spot-
'i from the
,d that the
1rclice in a
,iar prior to

odious se-
rtire Mont-
nunity and

the city's
and several
I rights ac-

of the de-
his estate,
1983, 1985

al shooting

.directly, any
'e equal pro-
rivileges and

. if one
do, or cause
;rnce 'of the
eby another
,erty, or de-
any right or
(l States, the
,ay have an
r:tges, occa-

il;'l:u*"'n"

,wledge that
re done, and
ris title, are

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WHITITIII,RST v. IVBIGHT $z
Clte ar 502 F.2d 83{ (t070)

and alleged cover-up, accomplished under On appeal, Mrs. Whitehurst alleges that
color of state law, deprive<l her son of the trial judge erred in refusing t-o recog-
rights guaranteed by the fifth, sixth, thir- nize the actionability of the cover-up clai-m
teenth and fourteenth amendments to the under Sg 1983 and 1985 and in using that
United Statcs Constitution. The district refusal as a basis to grant rur.u.y ludg-
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 eonclude 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 a
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 havlng 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.

4. That 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)(r).

5. The statement was made in the following
context:

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

MR. WATKINS: Not fully at this time be-
ca u se-(i n terru pted )

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

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

TllE COURT: Do you have any evidence
that tends to show that they knew that the

THE COURT: . you are trying to

Motion for Recusal

Appellant filed a motion for recusal un-
der 28 U.S.C. $ 455(bX1),. claiming that the'trial judge displayed personal bias during a
hearing on a motion to dismies the police
chief and public safety director as defend-
ants. 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." 5

man [the police chief and public safety di-
rectorl were pursuing-that their underlings
were pursuing was not the man described to
the police offlcers, 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 this 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 mean a cause of action, after it's all
over such as you are trying to do with these
two people. They had a duty to pursue a
iriminal and insofar as we know, and I think
we know a great deal about this case 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.

tie two people into a wrongful death who
really dldn't do anything unlawful but were
actually firmly pursulnS the dutles that the
law placcd on them, and you are sulng these
fellows, and that's all you have. And this is
a dangerous situalion.

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

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838 592 FEDERAI, TIEPORTER, 2d SERIES

ll-31 Although thc gcncral rule is that
bias sufficient to <lisrlualify a judge must
stcm from extrajudicial sources, see, e. g.,
Uniterl Stzrte.s r'. Grinnell Oorp., 384 U.S.
563, 86 S.Ct. 1(i98, 16 l,.F'}1.2d 7?8 (1966);

Curl v. Intcrnational .Business Machines
Corp., 517 F.2d 212 (Sth Cir. 1975), cert.
denied, 425 U.S. 943, 96 S.Ct. 1683, 48

l,.Ud.?l 187 (1976), this court has recog-
nized that

there is an cxception whcre such pcrva-
sive bias and llrejurlice is shown by other-
wise judicial conduct as would constitute
bias against a party.

Dirvis v. Boanl of School Comntissionars of
Moltile CounQ',1-r17 F.2d 10,14, 1051 (5th Cir.
1975), cert. danied, 425 U.S. 944, 96 S.Ct.
1685, 48 L.Ed.2d 188 (1976). Thus, the sin-
glc fact that the judge's remarks were
marle in a judicial context does not prevcnt
a finding of bias. We cannot conclude,
however, that the remarks made here evi-
dence any bias, let alone the "pervasive
bias" that must be shown to disqualify a
ju<lge for his statemcnts made in a judicial
setting.

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

l4l Appellant's position is not aided by
28 U.S.C. $ 455(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 then that's a further extinuation
[sicl 0f the (:onsl)iracy. And we think that
evidtnce will show that tlr('se people actively
tried to defeat the circumstanccs.

THE COITRT: Well, the purpose of the
conspiracy as you allege it was effected be-
fore these people got into the conspiracy, as I

see it. The purpose of the conspiracy was to

the judge shoulrl disqualify himself. Parr-
ish v, Boarrl of Commissioners of Alabama
State Bar, SZL F.Zd 98 (sth Cir. 1975), cert.
denied, 425 U.S. 944, 96 S.Ct. 1685, 48
L.Ilrl.2rl 188 (1976). Sec gcnerally, 13 C.

Wright, A. Miller & E. Cooper, Federal
Practice and Procedure g 3542 (1975).

There is no basis for a rea-conable man to
believe that thc trial judge was biased in
this instance. The judge refused to grant
the dcfendantsl' 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
inferred.

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. qbx6). 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 it. Now, if
therc is some way you can amend that so as
to got th(,nr in it is nry duty to let you do lt, as
I understand thc law, but I don't think people
ought to be sued lightly. To be sued within
itself is a pretty severe punishment and it
bothers me a good deal that people get sued
for doing their duty.

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lrimself. Pat-
,'rs of Alabama
1',tr. 1975), cerL.

s.cr. 1685, 48
t'nerally, 13 C.
(x)l)er, Fc(lcral
: 3542 (1975).
;onable man to
' was biascd in
,fused to grant
srniss and gavc
levelop the evi-
rlcm. The trial
rl none can be

<:t

Mayor James
rrl verdict after
lerl to show the
violent tenden-
.ter. Appellant
rroneous state-
,pplied in deter-
, are guilty of
nd maintaining
ir staffs.

rcrts that the
upervisor knew
his employee's

:rg Sims v. Ad-
')76) as supglort.
is of little help
That ca^se re-
issal for failure
'. 12(bX6). Af-
raw in the area,
r exist when a

" 
"to control a

y for improper
at 832 [empha-

iife, according to
i conspiracy had
ht and Swindall
rcy according to
.tand it. Now, if
rrrrend that so as
,) lct you <lo it, as
ion't think people
,r be sued within
rrishment and it
, people get sued

WIII'II.IHURST v. WRIGHT 839
Clte a3 602 F.2d 834 (1070)

sis sulrplicd]. The court did no[ 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
tlecd, a review of several similar cases leads files. After considering the evidence thus
us to conclu(le that the trial judge applied presented, we determine that the directed
the correct standarrl. Chestnut v. City of verdict was properly granted.
Quincy,5l3 F.2d 91 (5th Cir. 1975); Russ v.

Ratliff,538 F.2d 799 (8th Cir. 1976), cert.
denied, 429 U.S. 1041, 97 S.Ct. 740, 50

L.Ed.zd 753 (1977).

t6] 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 crroneously directed the
verdict. ln Boeing Co. v. Shipman, 4ll
F.zd 365 (Sth Cir. 1969), this court an-
nounced that a directed verdict would be

sustained if, based on all the evideuce
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-

lxrct 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

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

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
checked the gun at that point, saw that it had
not been fired and fired the gun, one round,
so that the gun would appear to have 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.

Impeachment of Plaintiff's Witness

t7l 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 establish
whether he had fired the single spent round
in the gun found nexl to Whitehurst's body.
Humphrey denied that he had fired the
gun, and Mrs. Whitehumt was aware that
he would so testify. Nevertheless, she

called him to the stand with the express
purpose of impeaching him with an out of
court statement made by Humphrey to his
friend, Lt. J. C. Cunningham, to the effect
that he had fired the gun.o

While it is now proper for a party to
impeach his own witness, Fed.R.Evid. 607,

impeachment by prior inconsistent state-
ment may not be permitted where em-
ployed as a mere subterfuge to get before
the jury evidence not otherwise admissi-
ble.

United States v. Morlang,531 F.2d 183, 190
(4th Cir. 19?5). See State of Mississippi v.

Durham, 4U F.u 152 (5th Cir. 19?1).

Here, the statement made to Cunningham
is hearsay and is generally inadmissible for
substantive purposes. Fed.R.Evid. 801(c),
802.? Mrs. Whitehurst asserts on appeal

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. Cunningham behind hlm.

7. Because the statement was offered only for
impeachment purposes, we make no determl-
nation as to its admissibility under Fed.R.Evid.
S 803(24). But cf. Fed.R.Evid. 801(dXlXA)
(prior inconsistent statement Siven under oath



840 592 FEDERAL REPORTER,2d SERIES

that she would have calle<l Lt. Cunninghanr
"to establish Humphrey's role concerning
the pistol firing ." To use a prior
inconsistent statement in that manner ex-
ceeds the scopc of impeachment, and is an
attempt to use hearsay evidence for sub-
stantive purposes. We do not believe that
the rules of evidence espouse such a revolu-
tionary approach to circumvent the tradi-
tional principles of hearsay.

tSl 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 thc lowcr eourt'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 substance, but only to de-
stroy the credibility of the witness. Thus,
the only harm suffered by Mrs. Whitehurst
was the opportunity to show that the wit-
ness she called could not be believed, Sub-
stantial justice was not denied by the exclu-
sion of such evidence.

Actionability of the Cover-up

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

may be used substantively when declarant is
testifying at trial and is subject to cross-exami-
nation concerning the inconsistent statement).

8. 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.

9. Neither party has pointed to any case that
recognizes or refuses to recognize the civil
rights of n corl)se. Appellees'brief, howevur,
d()cs crrll to ollr itil(,ntion Ror. v. Wa&,, 4lO
t,.S. I13, !)3 S.(lt. 701-r, 35 l,.l:(1.2d t47 (tt)73),
which found that il fetus is not a person under
lhe l4th amendment and has no rights thereun-
der. From that principle, appellees forcefully
argue that if a being capable of sustaining life

tir'
suf
sur

tiv
ful
ac

stl
Cf(

ist,
tai
th,

I

ftt,
ttfr

dc
do
er

C() i

tu'
erl

th;
th,

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th,
wl

r
S 1983 or g 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.s 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.e A claim in this
instance was properly denied.

Despite the inherent illogic of recognizing
a claim for deprivation of I corpse's
"righLs," Mrs. Whitehurst advances policy
reasons for recognizing a claim in this in-
stance. She notes two cases that have ree-
ognized a cover-up claim as the basis for
S 1983 actions. Hampton v. City of Chica-
go, Cook County, Illinois,4U F.2d ffiZ (7th
Cir. 1973), cert. denied,4lS U.S. 917,94
S.Ct. 1413, 39 L.Ed.2d 471(t974); Bargain-
er v. Michaf 233 F.Supp. Zt| (N.D.Ohio
1964). Although both of these cases were
brought by the persons against whom the
cover-up was effected, Mrs. Whitehurst
submits Lhal Brazier v. Cherry,2g3 F.2d 401
(5th Cir.), cert. denied, S63 U.S. 921, 82 S.Ct.
2113, 7 L.EJ.2d 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 $ 1983, to wrongful death ac-

in the future is not a person, a forliori, 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.l933); 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 & lmprovement Co. v. Jenkins, lll Ala.
135, 18 So. 565 (ltt9l-r). Although a cause of
nctlon exlsts ln t'nch situotlon, the clolrn be.
lon,.ls to the survivor of thc deceased. lf the
corl)se were an entity capable of possessing
rights, the action would belong to him or to his
personal representative.

a,

Itt



!r

ofa
rrtion
lIere,
took
lxre n

,nade

or to
hoot-
long-

and
Ls of
r this

'izing
'l)se's

,olicy
is in-
,rec-
r for
'hica-

r (7th
i,94
qain-
.Ohio
were

' the
r urst
I 401

S.Ct.
that
'rlity
hose
,zier,
vio-
grve
I ac-

,ri, a
rot a
ititu-

ights
rt of
dies,
Acc.

nter-
,'.s &

I54
",ner
Ala.
,t, of
r be-
! the
,sing
,r his

KNAIIE v. NATIONAL SUPI'LY DIV. OF ARMC0 STEIIL 841
Clte os i02 F.z(l 841 (1070)

tions as wcll a-s whcthcr <rlaims for damages machinery, sccking to rccovcr for injury to
sustained during the dece<lent's lifetime their dairy business as a result of water
survive in favor of his personal representa- pollution caused by the manufacturer. The
tive. We concluded that in order to give United Statres District Court for the East-
full cffcct to thc Civil Itights Act, such ern District of Texas, Joe J. Fisher, J., set
actions must l)e recognize(l if apltlicable aside a jury awar6 of $b0,000 in exemplary
state law so provi(les.lo Brazier did not
create any new craims where none had ex- damages and entered judgment against the

isted before; it merely recognized that cer- manufacturer for compensatory damages in

rain civil rights actions survive the death of :i:^11",""::,ljlu:Y:-^Tl:lililt:::
the victim. appealeo, seeKlng relnslaLemen[ oI Lne ex-

emplary damages, and the manufacturer
tl0l Mrs. Whitehurst argues that in re- cross-appealed. The Court of Appeals, Gee,

fusing to recognizc a claim here, we will Circuit Judge, held that: (1) applying the
"foster police misconduct subsequent to the federal stan6ard for upholding verdicts to
death of a victim of police hrutality." We the Texas stan<lanl for evidence sufficient
do not agree' our holding is not that cov- to support an award of exemplary damages
er-uo of a wroner-ful <leath is without civil orr. r , : ln a polluLlon case, Lnere was evlqence oI
criminal effect. The question presented in
the court below an<i in this court was such quality and weight that reasonable

whether events occurring after his death and fair-minded persons in the exercise of

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

tutional rights for 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 rule6, and we ctnclude without regard and with conscious indiffer-

that its ruling was correct. ence to the rights of the dairy farmers; (2)

AFFIRMED he jury's award of exemplary damages was
reinstated; (3) the record adequately sup-

_fw\_ 
ported the award of damages for diminish-

(o txrriluneiisy6 ed productivity of dairy cattle, and (4) un-

\ry der the circumstances, recovery of damages
both for the decline in market value of the
dairy cattle and for lost productivity did not

Lawrence KNABE, Sr. and l,awrence constitute double recovery.
Knabe, Jr., Plaintiffs-APPellants

Cross-Appelleee,Reversedinpartandaffirmedinpart.
v.

NATIONAL SUPPLY DIVISION OF

ARMCO srEEL coRpoRATIoN, 
1' Damages-691(1)

Defendant-Appellee croes' Under Texas law' exemplary damages

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

No. 77-1251. unlawful.

United States Court of APPeals,

Fifth Circuit. 2. Federal Civil Procedure @2142, 2608

April 5, 1g?g. In diversity ca.ses, federal courts apply
the federal rather than the state standard

I)airy fumcrs lrrought rlivcrsity suit for dctcrmining whethcr cvidcncc is suffi-
against corlxlrate manuftcturcr of hcavy cicnt to dcfeat motions for a dirccted ver-

10. tn Robertson v. Wegmann,436 U.S.584,98 $ 1983 actions survive in favor of the dece-
S.Ct. 1991,56 L.Ed.2d 554 (1978), the Supreme dent's representative. That holding presents
Court held that state survival law is to be no issues in the case sub iudice.
followed in determining whether pending

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