Appeal from the United States District Court for the Southern District of Mississippi. D.C. DOCKET NUMBER CA-J87-0421(B). JUDGE William H. Barbour, Jr.
Before Johnson, Williams, And Higginbotham, Circuit Judges.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
HIGGINBOTHAM, Circuit Judge:
This § 1983 suit returns to this panel on remand from the Supreme Court. In our first opinion, we affirmed the district court's grant of qualified immunity to defendants Cole and Robbins. Wyatt v. Cole, 928 F.2d 718 (5th Cir. 1991). The Supreme Court reversed, holding that "qualified immunity, as enunciated in [Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982], is [not] available for private defendants faced with § 1983 liability for invoking a state replevin, garnishment or attachment statute." 112 S. Ct. 1827, 1834 (1992). In so doing, the Court explained that its decision did "not foreclose the possibility" that private defendants "could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens." Id.
We have requested, and received, supplemental briefs from Wyatt, Cole, and Robbins.*fn1 In keeping with the Court's suggestion, as well as the more explicit guidance provided by Justice Kennedy's Concurring opinion, id. at 1835-37 (Kennedy, J., Concurring), and the Chief Justice's Dissent, id. at 1838-39 (Rehnquist, C.J., Dissenting), we now hold that plaintiffs seeking to hold private actors liable under Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982), must demonstrate that defendants failed to act in good faith in invoking the unconstitutional state procedures. Because Wyatt has not shown that Cole and Robbins either knew or should have known that Mississippi's replevin statute was unconstitutional prior to its invalidation in April 1989, we affirm the district court's judgment.
Howard Wyatt and Bill Cole are former business partners. Cole sought to dissolve the partnership in July 1986. When negotiations failed, Cole, with the assistance of his attorney, John Robbins, II, filed a state court complaint in replevin against Wyatt accompanied by a bond of $18,000. Pursuant to Miss.Code Ann. § 11-37-101, a writ of replevin issued and the county circuit Judge signed an order directing the county sheriff to execute the writ a few days later. The sheriff seized 24 head of cattle, a tractor, and other property from Wyatt on July 29 and 30, 1986. The writ of replevin and summons were served on Wyatt the next day. On October 3, 1986, after a post-seizure hearing, the circuit Judge dismissed Cole's complaint in replevin and ordered him to return the property to Wyatt. Although Cole had not yet complied with this order, the Judge dismissed the action without prejudice on September 3, 1988.
In July 1987, Wyatt filed this § 1983 suit in U.S. District Court for the Southern District of Mississippi, contending that the seizure of his property without notice violated the Due Process Clause as well as several state provisions. The district court declared the state replevin statute unconstitutional on April 13, 1989, 710 F. Supp. 180, but held that Cole and Robbins were entitled to qualified immunity from any damages suffered by Wyatt prior to this date under Folsom Investment Co. v. Moore, 681 F.2d 1032 (5th Cir. 1982). Wyatt conceded that he could not prove any damages resulting from defendants' conduct after the statute had been invalidated, but asserted that Cole and Robbins should be held liable for attorney's fees. The district court denied this request with respect to Cole and Robbins on grounds that a failure to recover money damages from defendants precluded a recovery of attorney's fees.
On appeal, we held that Wyatt's request for damages suffered prior to the district court's decision in 1989 was barred by Folsom, where this court held that "'a § 1983 defendant who has invoked an attachment statute is entitled to an immunity from monetary liability so long as he neither knew nor reasonably should have known that the statute was unconstitutional.'" 928 F.2d 718, 721 (5th Cir. 1991) (quoting Folsom, 682 F.2d at 1037). Given our invalidation of a similar Georgia prejudgment statute in Johnson v. American Credit Co., 581 F.2d 526 (5th Cir. 1978), we recognized that the reasonableness of Cole's and Robbins' invocation of the Mississippi statute presented a close question. 928 F.2d at 721-22. We held, however, that Cole and Robbins, as private actors, should not be charged with the same degree of knowledge as public officials, and that, under this more liberal standard, their reliance on the law "was not an act of unreasonable ignorance." Id. at 722. We therefore affirmed the district court's grant of qualified immunity to Cole and Robbins.*fn2
The Supreme Court then reversed, holding that qualified immunity is not "available for private defendants faced with § 1983 liability for invoking a state replevin, garnishment or attachment statute." 112 S. Ct. 1827, 1834 (1992). While noting that private actors enjoyed a good-faith defense against suits for malicious prosecution and abuse of process at common law, the Court asserted that such history did not, by itself, entitle them to "the qualified immunity from suit accorded governmental officials under Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)." 112 S. Ct. at 1832 (emphasis added). To the contrary, Harlow 's recognition of "such an immunity was based not simply on the existence of a good-faith defense at common law, but on the special policy concerns involved in suing government officials." Id. at 1833. Because Harlow "'completely reformulated qualified immunity along principles not at all embodied in the common law,'" id. (quoting Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3042, 97 L. Ed. 2d 523 (1987)), the doctrine could be extended only if suits against private defendants implicated the same policies supporting immunity for public officials. The Court found that they did not. Qualified immunity, the Court explained, is necessary to ensure that "public officials are able to act forcefully and decisively in their jobs" and that "talented candidates [are] not deterred by the threat of damage suits from entering public service." Id. at 1833. Since these considerations are absent in the case of private parties, who of course "hold no office requiring them to exercise discretion," id., the expansion of qualified immunity contended for by Cole and Robbins was unwarranted. Thus, the Court concluded that, "although principles of equality and fairness may suggest . . . that private citizens who rely unsuspectingly on state laws they did not create and may have no reason to believe are invalid should have some protection for liability," id. at 1833, it could "offer no relief today." Id. at 1834.
The Court identified two issues for consideration on remand. Noting that this panel affirmed the district court's judgment solely on grounds of qualified immunity, the Court stated that its decision made it necessary to determine "whether Cole and Robbins, in invoking the replevin statute, acted under color of state law within the meaning of [Lugar v. Edmondson Oil Co., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982)]." 112 S. Ct. at 1834. The Court also indicated that its denial of qualified immunity did not
foreclose the possibility that private defendants faced with liability under [Lugar ] could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, ...