United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 91-3683.

                               Charles A. JACKSON, Plaintiff-Appellee,

                                                    v.

                                 STATE OF LOUISIANA, Defendant,

 Charles C. Foti, Jr., Individually and in His Official Capacity as Criminal Sheriff of the Parish of
Orleans, et al., Defendants-Appellants.

                                              Jan. 12, 1993.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, WILLIAMS and DUHÉ, Circuit Judges.

          POLITZ, Chief Judge:

          This appeal poses a question about the allocation of law enforcement authority between the

Police Department of the City of New Orleans and the Orleans Parish Criminal Sheriff. Charles C.

Foti, Jr., individually and in his o fficial capacity as Criminal Sheriff of Orleans Parish, and Patrick

Callahan, individually and in his official capacity as one of Sheriff Foti's deputies, appeal an adverse

judgment following a bench trial of the claims of Charles A. Jackson under 42 U.S.C. § 1983 and

state law. We reverse and render judgment in favor of the defendants.

                                               Background

          Jackson originally filed suit in state court, alleging claims under 42 U.S.C. § 1983 and

Louisiana law. The case was removed to federal court and tried upon jointly stipulated facts.

          According to the joint stipulation, Callahan, a deputy sheriff with the Orleans Parish Criminal

Sheriff's Department,1 and another officer were parked on the side of the road checking traffic for

violations when they observed Jackson's vehicle with an expired brake tag.2 After stopping Jackson,



   1
    Prior to Jackson's arrest, Callahan successfully completed the basic law enforcement training
course of the Peace Officer Standards and Training ["P.O.S.T."] Council. See La.R.S. 40:2405.
   2
       La.R.S. 32:1304 E.
Callahan asked for his driver's license, which also was expired. 3 Callahan radioed the Criminal

Sheriff's office to verify the license expiration and then placed Jackson under arrest. Jackson was

transported to Central Lock Up and booked without incident and in accordance with standard arrest

procedures for brake-tag and license violations.

          The parties stipulated that "if an officer of the New Orleans Police Department had performed

the actions performed by Deputy Callahan ... the actions would have been legal and constitutional."4

They stipulated that Callahan acted under color of state law and that his conduct conformed with the

official policy, procedure, and practice of the Orleans Criminal Sheriff's Office. At all pertinent times

Foti was, and currently is, t he elected Criminal Sheriff of Orleans Parish. In addition, the parties

stipulated that the quantum of Jackson's damages was $3000, including attorney's fees and costs.

          Jackson invoked section 1983 and state tort law, alleging that the Orleans Parish Criminal

Sheriff's Office was without legal authority to investigate criminal activity or make the subject stop

and arrest. The district court agreed, found the arrest unlawful, and entered judgment as per the

stipulation. Foti and Callahan timely appealed.

                                                Analysis

          A claim under section 1983 requires: "[f]irst, the conduct complained of must have been

committed by a person acting under color of state law; and second, this conduct must have deprived

the plaintiff of rights, privileges, or immunities secured by the Constitution or the laws of the United

States."5

   3
       La.R.S. 32:412 G.
   4
    Notwithstanding this stipulation, Jackson asserts on appeal that the arrest was not supported
by probable cause. See infra.
   5
   Augustine v. Doe, 

, 324-25 (5th Cir.1984); Mahone v. Addicks Utility Dist.,

(5th Cir.1988).

                 42 U.S.C. § 1983 provides:

                 Every person who, under color of any statute, ordinance, regulation, custom, or
                 usage, of any State or Territory or the District of Columbia, subjects, or causes to
                 be subjected, any citizen of the United States or other person within the
                 jurisdiction thereof to the deprivation of any rights, privileges, or immunities
                 secured by the Constitution and laws, shall be liable to the party injured in an
       The district court stated that "the claimed "deprivation' is that Deputy Callahan engaged in

a systematic check of vehicles, stopped, searched and arrested the defendant, without legal authority

to do so, this activity more accurately described as criminal investigation or "police work' which is

exclusively the province of the Orleans Parish Police Department." Although Jackson contends that

the defendants were not acting pursuant to express state authority, they acted in accord with official

policy or custom.6

        The remaining issue was whether Jackson had established the deprivation of a federal right.

The district court framed the issue thusly: "whether the actions taken by Deputy Callahan, emanating

from his efforts to actively attempt to apprehend criminals and/or investigate crime, said actions

admittedly in accordance with the policy and practice of the Orleans Parish Criminal Sheriff, were

taken without legal authority under Louisiana law, and therefore in violation of plaintiff's

constitutional rights." Jackson contends that because his arrest was the result of a criminal

investigation which the deputy had no legal authority to conduct, his fourth amendment rights were

violated.7 We need not resolve the constitutional question whether an arrest resulting from an

unauthorized investigation is an unreasonable seizure under the fourth amendment,8 however, because


               action at law, suit in equity, or other proper proceeding for redress. For the
               purposes of this section, any Act of Congress applicable exclusively to the District
               of Columbia shall be considered a statute of the District of Columbia.
   6
    "Misuse of power, possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law, is action taken "under color of' state law."
United States v. Classic, 

, 326, 

, 1043, 

(1941); see
Monroe v. Pape, 

, 

, 

(1961) (adopting Classic standard
for purposes of § 1983) (overruled in part on other grounds, Monell v. N.Y.C. Dep't of Social
Services, 

, 

, 

(1978)). "Acts of officers who undertake
their official duties are included whether they hew to the line of their authority or overstep it."
Screws v. United States, 

, 111, 

, 1040, 

(1945).
   7
    Jackson also attempts to argue that the arrest was not supported by probable cause. The
parties stipulated, however, that had the same arrest been conducted by a New Orleans Police
Officer there would have been no constitutional violation. Jackson asserts on appeal that "if the
present case had not been tried in accordance with a joint stipulation, Appellee would have shown
that Appellants had no probable cause to stop him, arrest him, search his person and his wallet,
and incarcerate him." The fact remains that this case was tried in accordance with the joint
stipulation and Jackson cannot renounce that stipulation on appeal.
   8
    "Prior to reaching any constitutional questions, federal courts must consider nonconstitutional
grounds for decision." Jean v. Nelson, 

, 854, 

, 2997, 

we conclude that the Orleans Parish Criminal Sheriff has authority to conduct criminal investigations

and make arrests.9

          The Orleans Parish Criminal Sheriff occupies a unique position under Louisiana law. The

Louisiana Constitution provides:

                  In each parish a sheriff shall be elected for a term of four years. He shall be the chief
          law enforcement officer in the parish, except as otherwise provided by this constitution, and
          shall execute orders and process. He shall be the collector of state and parish ad valorem
          taxes and such other taxes and license fees as provided by law.

                             This Section shall not apply to Orleans Parish10

          The Constitution also provides, however, that the office of the Orleans Parish Criminal Sheriff

continues in full force and effect as it existed prior to the passage of the 1974 Constitution.11 That

is, the Criminal Sheriff is t he executive officer of the criminal courts of Orleans Parish and has

additional duties as "prescribed by law."12

           The Louisiana legislature has ordained that Louisiana sheriffs shall have the following duties:

                  Except in the parish of Orleans, the sheriff shall be ex officio collector of state and
          parish taxes.


(1985) (citing Gulf Oil Co. v. Bernard, 

, 99, 

, 2199, 

(1981), further citations omitted).
   9
    If the issue were only whether the Orleans Parish Criminal Sheriff has the authority to make
arrests, the answer unequivocally would be in the affirmative. The Sheriff is a peace officer with
the authority to make warrantless arrests for offenses committed in his presence or upon
reasonable cause. See La.Code Crim.P. art. 213; La.R.S. 40:2402.

                  Whether the unauthorized exercise of other police powers gives rise to a fourth
          amendment violation, however, is less clear. See Malone v. County of Suffolk, 

(2d Cir.1992) (whether officers act under color of valid authority pursuant to state
          law affects constitutionality of arrest); Ross v. Neff, 

(10th Cir.1990)
          (arrest made outside officer's jurisdiction violates the fourth amendment and is actionable
          under § 1983); cf. Fields v. City of South Houston, 

(5th Cir.1991) (no
          cause of action for false arrest under § 1983 unless arresting officer lacks probable cause);
          Street v. Surdyka, 

(4th Cir.1974).
   10
        La. Const. art. V § 27 (1974) (emphasis added).
   11
     La. Const. art. V § 32 (1974). Orleans Parish, unlike the other parishes, has a separate civil
sheriff who is executive officer of the civil court.
   12
     La. Const. art. 142 (1898 and 1913); see La. Const. art. VII § 89 (1921) (provisions of 1898
and 1913 Constitutions regarding this office continue in effect unless amended or changed by the
legislature).
                 Each sheriff or deputy shall attend every court that is held in his parish, and shall
          execute all writs, orders, and process of the court or judge thereof directed to him.

                Each sheriff shall be keeper of the public jail of his parish and shall preserve the peace
          and apprehend public offenders.13

Orleans Parish is excepted only with respect to the provision regarding tax collection. It necessarily

follows that the Orleans Parish Criminal sheriff is imbued with the responsibility to "preserve the

peace and apprehend public offenders." The district court and the plaintiff make much of the fact that

this sheriff's duty to "preserve the peace" is repeated in La.R.S. 15:704, in the chapter of the Revised

Statutes entitled "Prisons and Correctional Institutions." From this they would ignore the general

grant of authority and would limit the authority to preserve the peace to matters incidental to the

operat ion of the parish prison. We conclude that such a myopic reading is unwarranted. La.R.S.

33:1435 is not limited to matters incidental to the operation of a prison. No serious argument to the

contrary can be made.

           It cannot be gainsaid that the Orleans Parish Criminal Sheriff differs from the sheriffs in

Louisiana's other 63 parishes. As noted above, the const itutional provision making the sheriff the

chief law enforcement official of the parish is inapplicable to Orleans Parish.14 Generally the sheriff

has authority over the entire parish, although law enforcement authority may be shared with smaller

municipal police departments. The territorial limits of Orleans Parish, however, are co-extensive with

that of the City of New Orleans.15 The Home Rule Charter of the City of New Orleans provides:

"No officer, department or board operating in or for the City, other than the Department of Police,

shall have a police force."16 The district court considered this as a basis for limiting the Criminal

Sheriff's law enforcement authority.

           The district court held that the Orleans Parish Criminal Sheriff's law enforcement powers are


   13
        La.R.S. § 33:1435 (emphasis added).
   14
        La. Const. art. V § 27 (1974).
   15
        See Richardson v. Heyd, 

(La.App.1973).
   16
     New Orleans Home Rule Charter § 4-503 (1921). See La.Const. art. VI, § 4 (1974) (home
rule charters existing at time constitution is adopted remain in effect).
restricted as a matter of state constitutional law. We are persuaded that because the Orleans Criminal

Sheriff is not the chief law enforcement officer in that parish and does not have a police force

denominated as such, does not compel the conclusion, as a matter of Louisiana constitutional law,

that the Orleans Criminal Sheriff has no law enforcement authority. To the contrary, we are

compelled to conclude that the legislatively-conferred duty to preserve the peace requires that the

Orleans Criminal Sheriff possess significant law enforcement authority. We also conclude that the

defendants did not exceed that authority in the case at bar.

          The district court relied heavily on dicta in two Louisiana Supreme Court cases. In Parker

v. Cappel,17 the court suggested that the New Orleans Criminal Sheriff was responsible only for the

custodial function of the prison and that other law enforcement functions are left to the New Orleans

Police Department.18 This suggestion, however, was wholly gratuitous. At issue in the case was

whether an equal protection problem was raised by the fact that New Orleans Sheriffs and their

Deputies were covered under state workers' compensation law while other law enforcement personnel

were not.

          In Proceedings on Behalf of Judge v. Grosch,19 the court, again in dicta, suggested that:

          the principal functions of the Criminal Sheriff are that of keeper of the parish jail and
          executive officer of the Criminal District Court. He is not an investigator of crime in New
          Orleans nor is he charged with the duty of apprehending criminals; this is the responsibility
          of the city police. Of course, the Criminal Sheriff and his deputies are peace officers and, as
          such, are entitled to make arrests without a warrant under the circumstances provided for in
          LSA-R.S. § 15:60 and 15:60.1.20

We find the dicta in these cases unpersuasive; it is not consistent with current relevant legislation.

           We find several opinions of the Louisiana Attorney General pertinent and instructive. An

early opinion advised:

          The only limitations made by our Legislature upon the power and authority of the Criminal
          Sheriff of [Orleans] Parish, are ... that he is not the acting Coroner, the State Tax Collector,

   17
        

(La.1987).
   18
        

n. 4.
   19
        

(La.1953).
   20
        

(La.R.S. 15:60 and 15:60.1 are now a part of La.Code Crim.P. art. 213).
              nor does he act in manners affecting cases in the Civil Courts of this State. In all other
              respects his powers are those of the Sheriffs of all other parishes as to making arrests and
              preserving the peace.21

As recently as 1990, the Louisiana Attorney General issued two opinions addressing the role and duty

of a police officer versus a deputy sheriff.

              Louisiana law seems to presume that everyone knows who and what is a police officer. Only
              the Louisiana Highway Regulatory Act defines police officer per se. LSA-R.S. 32:1(50)
              provides: " "police officer" ' "means every officer authorized to direct or regulate traffic and
              to make arrests for violations of traffic regulations.' Under this definition municipal, parish
              and state law enforcement officers are "police officers.'22

The opinion went on to hold that "[s]heriffs and deputy sheriffs in Louisiana are the functional

equivalent of "police officers' in custom if not by the nomenclature of the positive law."23 Upon

reconsideration of that opinion the Attorney General stated the following:

                     The historical function of the sheriff in Anglo-American law has been to act as keeper
              or warden of the county jail, LSA-15:704, and as the chief executive officer to the court of
              general jurisdiction, La.C.C.P. Art. 321. In American law, the sheriff has also been given a
              law enforcement function within his territorial jurisdiction. La. Const. Art. V, § 27 (1974).

                      In terms of police power, police officers and sheriffs and their deputies do have similar
              functions and powers, but in different jurisdictions. The difference in title for their respective
              roles signifies this differentiation in jurisdiction. In addition, as the warden of the parish jail
              and the chief executive officer of the district court, civil and criminal, the total official function
              of a sheriff is more diverse and complex than the strictly criminal function of a municipal law
              enforcement officer.24

We perceive no suggestion that because the functions of the sheriff and police departments are

different their powers are mutually exclusive. We therefore are persuaded and hold that the Orleans

Parish Criminal Sheriff has authority to conduct criminal investigations and make arrests within

Orleans Parish. Accordingly, Jackson's section 1983 claim of wrongful arrest must fail.

              The district court did not specify whether the judgment was based on section 1983, state tort

law, or both. We must assume, however, that because the judgment awarded attorney's fees,

available in section 1983 cases but not for state law claims, the award was based at least in part on

   21
        1944-46 Op. Att'y Gen. 906 (1946) (emphasis added).
   22
        No. 90-181 Op. Att'y Gen. 107 (1990).
   23
        

90-181A Op. Att'y Gen. 107 (1990).
section 1983. For the above noted reasons the section 1983 claim founders. The state law claim

likewise founders. Because Callahan had the legal authority to make the arrest, which otherwise was

stipulated as proper and correct, there can be no valid state law claim for false arrest.

       The judgment is REVERSED and judgment is now RENDERED dismissing the claims against

Sheriff Foti and Deputy Callahan.