IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                   No. 90-1058



HOWARD L. WYATT,
                                                   Plaintiff-Appellant,

                                     versus

BILL COLE, JOHN ROBBINS, II,
                                                   Defendants-Appellees.




      Appeal from the United States District Court for the
                 Southern District of Mississippi


                                 (June 25, 1993)

      ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOHNSON, WILLIAMS, AND HIGGINBOTHAM, Circuit Judges.

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, 

(5th Cir. 1991).              The Supreme Court

reversed,   holding       that   "qualified   immunity,   as   enunciated   in

[Harlow v. Fitzgerald, 

(1982], is [not] available

for private defendants faced with § 1983 liability for invoking a

state replevin, garnishment or attachment statute."                

, 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."      

requested, and received, supplemental briefs from

Wyatt, Cole, and Robbins.1 In keeping with the Court's suggestion,

as well as the more explicit guidance provided by Justice Kennedy's

concurring opinion, 

(Kennedy, J., concurring), and

the Chief Justice's dissent, 

(Rehnquist, C.J.,

dissenting), we now hold that plaintiffs seeking to hold private

actors liable under Lugar v. Edmondson Oil Co., 

(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.

                                    I.

     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

     1
           The State of Mississippi and several county officials
were also parties to this case in the district court and on
appeal. Wyatt's claims against these defendants were resolved
prior to argument in the Supreme Court and are therefore not
before us.

                                    2
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, 

, 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, 

(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


                                  3
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.'"           

,

721 (5th Cir. 1991) (quoting 

).            Given our

invalidation of a similar Georgia prejudgment statute in Johnson v.

American Credit Co., 

(5th Cir. 1978), we recognized

that the reasonableness of Cole's and Robbins' invocation of the

Mississippi statute presented a close 

-

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."

   We therefore affirmed the district court's grant of

qualified immunity to Cole and Robbins.2

      The   Supreme   Court   then   reversed,   holding    that   qualified

immunity is not "available for private defendants faced with § 1983


      2
          We did reverse the district court on the issue of
attorneys' fees, holding that Cole, but not Robbins, was liable
for fees incurred after the district court's declaratory judgment
because this decision "affected the behavior of Cole towards
Wyatt by effectively requiring him to return the property

. We are no longer persuaded that this
is correct. Cole offered to return the cattle soon after the
district court's invalidation of the statute, but the record
discloses that his overture was not accepted. Wyatt instead
sought to recover damages for the loss of his share of the
partnership's assets, which included the cattle. At trial,
however, Wyatt conceded that he could not demonstrate that Cole's
seizure resulted in a net loss, and thus could not establish any
damages. Since Cole was not required to pay damages or otherwise
change his behavior in any way as a result of the court's
judgment, he has not been "prevailed against" and thus is not
liable for attorneys' fees. See Kentucky v. Graham, 

, 3104 (1985).

                                      4
liability for invoking a state replevin, garnishment or attachment

statute."     

, 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, 

(emphasis added).       To the contrary, Harlow's recognition of "such

an immunity w[as] 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."                

        Because Harlow

"'completely reformulated qualified immunity along principles not

at all embodied in the common law,'" 

v.

Creighton, 

, 3042 (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." 

Since these considerations

are absent in the case of private parties, who of course "hold no

office requiring them to exercise discretion," 

of   qualified   immunity      contended       for   by   Cole     and   Robbins   was

unwarranted.        Thus,      the   Court      concluded     that,      "[a]lthough

principles of equality and fairness may suggest . . . that private


                                           5
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," 

it could "offer no relief

today."   

      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., 

.      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, parties could require plaintiffs to carry
      additional burdens.

these issues in turn.

                                    II.

      Section 1983 provides a cause of action against any person

who, under color of state law, deprives another of rights secured

by the Constitution.       Collins v. City of Harker Heights, 

, 1066 (1992); 42 U.S.C. § 1983.        In Lugar v. Edmundson Oil

Co., 

(1982), the Supreme Court held that private

parties invoking a state attachment statute may be held liable

under § 1983 if their actions are "fairly attributable to the

state."     

   The Court established a two-part test for

determining whether the conduct alleged meets this requirement.

                                     6
First, "the deprivation must be caused by the exercise of some

right or privilege created by the State or by a rule of conduct

imposed by   the   state   or   by   a    person   for   whom   the   State   is

responsible." 

party charged with the deprivation

must be a person who may fairly be said to be a state actor," that

is, one who is in fact a state official, one who "has acted with or

has obtained significant aid from state officials," or one whose

"conduct is otherwise chargeable to the State."             

     In applying this standard to the facts of before it, the Court

in Lugar found the presence of the ex parte attachment statute

sufficient to satisfy the first requirement: "[T]he procedural

scheme created by the statute is obviously the product of state

action [and] is subject to constitutional restraints and properly

may be addressed in a § 1983 action."         

     The Court also

found the private defendants' resort to this unconstitutional

procedure    sufficient    to    meet      the     test's   second,     "joint

participation" prong.      

doing, the Court expressly

rejected the argument "that in this context 'joint participation'

required something more than invoking the aid of state officials to

take advantage of state-created attachment procedures."               

threshold" for establishing state action, at least where ex

parte prejudgment proceedings are involved, Davis Oil Co. v. Mills,

, 779 (5th Cir.), cert. denied, 

(1989),

has been recognized by the circuit, see, e.g., 

("when a § 1983 plaintiff challenges the constitutionality of

a state attachment procedure . . . the private party who sets that


                                      7
attachment scheme in motion is to be considered a state actor"),

and was confirmed by the Supreme Court in 

.

     The    district    court   held    that   Cole's      invocation   of   the

Mississippi    replevin   statute      was   enough   to    trigger   potential

liability   under   §   1983.    It    also    assumed,     without   expressly

deciding, that Robbins, his attorney, had also acted under color of

state law in requesting the writ of replevin.              On remand from the

Supreme Court, Cole challenges the district court's determination.

Wyatt has maintained throughout this litigation that Cole's actions

contravened not only federal law (in that the replevin statute

operated to deprive him of his property without due process), but

also state law, contending that Cole filed the complaint in bad

faith, that replevin was improper under state law, and that Cole

refused to return the cattle in violation of a state court order.

Citing Lugar, Cole argues that he cannot be deemed a state actor

because Wyatt's assertion that his conduct was contrary to, not

consonant with, state law and policy locate the source of his harm

in purely private actions for which the state cannot be held

responsible.

     This argument is not without merit.          The Court in Lugar faced

a similar charge that private defendants' attachment suit was

"'unlawful under state law.'"              

.          In

discussing this claim, the Court made plain that "private misuse of

a state statute does not describe conduct that can be attributed to

the State."     

       The choice to invoke the "statute


                                       8
without the grounds to do so could in no way be attributed to a

state rule or state decision"; this act is "contrary to the

relevant policy articulated by the state."      

      For this

reason, complaints "alleg[ing] only misuse or abuse of the statute"

do not "present a valid cause of action under § 1983."              

   In the wake of Lugar, several courts have recognized and

given effect to this principle.    See, e.g., Davis Oil 

(discussing Lugar); Cobb v. Saturn Land Co., 

, 1335-36 (10th Cir. 1992); Hoai v. Vo, 

, 313-14

(D.C.Cir. 1991), cert. denied, 

(1992); Jones v.

Poindexter, 

, 1010-11 (4th Cir. 1990); Collins v.

Womancare, 

, 1152-54 (9th Cir. 1989), cert. denied,

(1990); Winterland Concessions Co. v. Trela, 

, 262 (7th Cir. 1984).

     The district court nevertheless properly held that Cole's

alleged misuse and violation of the Mississippi replevin statute

did not preclude a finding that he acted under color of state law.

Like the plaintiff in 

-56, Wyatt also

challenged the constitutionality of the state law in asserting that

his property had been taken without due process.             Because this

claim centers on the procedures prescribed by the statute itself,

rather   than   defendant's   alleged   abuse   of   them,    it   plainly

implicates the state and its authority in the deprivation of

constitutional rights.    

Court found state action

present on analogous facts; so do we.




                                   9
     With respect to Robbins, the district court held that "[w]hile

an action strictly within the scope of representation of a client

does not normally constitute an act under color of state law, an

attorney is still a person who may conspire to act under color of

state law in depriving another of secured rights."         Tower v.

Glover, 

, 920-23 (1984); Russell v. Milsap, 

, 383 (5th Cir. 1985), cert. denied, 

(1986).    See

n.5. Cf. Watertown Equipment Co. v. Norwest

Bank Watertown, N.A., 

, 1496 (8th Cir. 1987), cert.

denied, 

(1988). Wyatt has not asserted that Robbins

performed any acts lying outside the scope of his representation of

Cole.   The district court, however, assumed that Robbins acted

under color of state law and Robbins himself concedes this point in

his brief.    We will therefore assume, without deciding, that

Robbins as well as Cole may be held liable under § 1983 for Wyatt's

constitutional injury.

                               III.

     Bound by our prior decision in Folsom Investment Co. v. Moore,

(5th Cir. 1982), this panel affirmed the district

court's grant of qualified immunity to Cole and Robbins.    

.   The Supreme Court reversed, but, as we noted

above, 

, at p.5-6, indicated that "principles of equality

and fairness" may suggest that private defendants "should have some

protection for liability," 

and expressly declined to

foreclose the possibility that a showing of good faith would defeat

a § 1983 action brought against individuals such as Cole and


                                10
Robbins.     

   The five Justices who either concurred or

dissented were more forthright in their support of a standard that

would relieve private parties who reasonably relied on a state

statute of liability.         See 

(Kennedy, J., joined

Scalia, J., concurring); 

(Rehnquist, C.J., joined by

Souter & Thomas, JJ., dissenting).             When read together, we believe

that the question left open by the majority was largely answered by

these   separate    opinions.       We    accordingly     hold      that    private

defendants sued on the basis of Lugar may be held liable for

damages under § 1983 only if they failed to act in good faith in

invoking the unconstitutional state procedures, that is, if they

either knew or should have known that the statute upon which they

relied was unconstitutional. We also find that Wyatt has failed to

meet this standard and therefore affirm the district court's

judgment.

        As   the   Court    stressed      in    Wyatt,   it   has    consistently

recognized that Congress, in enacting the Civil Rights Act of 1871,

legislated against a background of common-law tort 

; 

(Kennedy, J., concurring).                     See, e.g.,

Owen v. City of Independence, 

, 637-38 (1980); Pierson

v. Ray, 

, 556-57 (1967); Monroe v. Pape, 

,

187 (1961).        Thus, while § 1983 "creates a species of tort

liability that on its face admits of no immunities," Imbler v.

Pachtman,    

,   417    (1976),   the   Court      has    read   the

provision "'in harmony with general principles of tort immunities

and defenses rather than in derogation of them.'"                         Malley v.


                                         11
Briggs, 

, 1095 (1986) (quoting 

)).   At the same time, because the process of drawing positive

inferences from legislative silence is always accompanied by a

certain amount of uncertainty, the Court has only "look[ed] to the

common law for guidance," and has not "assume[d] that Congress

intended to incorporate every common-law immunity into § 1983 in

unaltered form."    

.        The conclusion that

Congress intended to incorporate a specific defense should follow

only after determining that "a tradition of immunity was so firmly

rooted in the common law and was supported by such strong policy

reasons that 'Congress would have specifically so provided had it

wished to abolish the doctrine.'"        

(quoting

)).

     The Court in Wyatt identified malicious prosecution and abuse

of process as the common-law causes of action most analogous to

Wyatt's claim under Lugar and therefore focused its inquiry on the

elements   of   these   torts.   While    differing    as   to   the   legal

consequences of their common finding, all of the Justices agreed

that plaintiffs seeking to recover on these theories were required

to prove that defendants acted with malice and without probable

cause.     

n.2 ("a plaintiff's malicious

prosecution or abuse of process action failed if she could not

affirmatively establish both malice and want of probable cause");

(Kennedy, J., concurring) ("In both of the common law

actions, it was essential for the plaintiff to prove that the wrong

doer acted with malice and without probable cause"); 

                                  12
n.1 (Rehnquist, C.J., dissenting) ("it was plaintiff's burden to

establish as elements of the tort both that the defendant acted

with malice and without probable cause" (emphasis added).                See

generally Stewart v. Sonneborn, 

, 194 (1878); 2 C.

Addison, Law of Torts § 1, p. 65 (1876); J. Bishop, Commentaries on

Non-Contract Law § 242, at 97 (1889); T. Cooley, Law of Torts 184

(1879); 1 F. Harper & F. James, The Law of Torts 311 (1956); Note,

Groundless Litigation and the Malicious Prosecution Debate: A

Historical Analysis, 88 Yale L.J. 1218, 1219 (1979).

     The majority in Wyatt concentrated on the immediate issue at

hand--whether the purposes and policies underlying § 1983 would be

served by transforming essential elements of the plaintiff's case

at common law into a defense of qualified immunity to be asserted

by defendants.    The Court held that they would 

.    Justice Kennedy and, at least to some extent, Chief

Justice Rehnquist accepted the majority's holding, but then moved

on to consider the precise contours of the good faith doctrine

they,   along   with   the   three   other   Justices   who   joined   their

opinions, believed would be available to Cole and Robbins on

remand.

     They agreed that plaintiffs, not defendants, bore the burden

of proof on the questions of malice and probable 

(Kennedy, J., concurring), and that, since plaintiffs were

required to prove both at common law, a defendant could avoid

liability under § 1983 by showing the absence of 

(Rehnquist, C.J., dissenting).           Justice Kennedy and


                                     13
Chief Justice Rehnquist also agreed that the probable cause inquiry

could not be wholly equated with qualified immunity, since the

Court had previously identified the Harlow Court's "replac[ement]

of the inquiry into subjective malice so frequently required at

common law with an objective inquiry into the legal reasonableness

of the official action" as a "complete[] reformulat[ion] [of]

qualified immunity along principles not at all embodied at common

law." Anderson v. Creighton, 

, 3042 (1987) (citing

).     

  n.2

(Rehnquist,     C.J.,   dissenting)    ("There   is    perhaps      one   small

difference between the historical common law inquiry and the modern

qualified immunity inquiry.       At common law, a plaintiff can show

the lack of probable cause either by showing that the actual facts

did not amount to probable cause (an objective inquiry) or by

showing that the defendant lacked a sincere belief that probable

cause existed (a subjective inquiry)").

     Justice Kennedy emphasized the importance of the subjective

inquiry into malice, stating that, "[u]nder common law . . . if the

plaintiff could prove subjective bad faith on the part of the

defendant, he had gone far towards proving both malice and lack of

probable 

(Kennedy, J., concurring). The

justification he offered to support the prominence of this inquiry,

however, cut both ways.       On the one hand, he indicated that the

examination of private defendants' actual knowledge of the validity

of the law might lead to a finding of liability in circumstances

where public officials would be shielded by qualified immunity.


                                      

   (Kennedy,     J.,     concurring)      ("It   seems

problematic to say that a defendant should be relieved of liability

under some automatic rule of immunity if objective reliance upon a

statute is reasonable but the defendant in fact had knowledge of

its invalidity").         On the other hand, given this emphasis on what

private actors actually know, rather than what they should know,

private      defendants    might      establish    probable      cause    and   avoid

liability even though a right was "clearly established." 

.        

(Kennedy, J., concurring)

("the existence of a statute thought valid ought to allow a

defendant to argue that he acted in subjective good faith and is

entitled to exoneration no matter what the objective test is").

      A private defendant's good faith is especially significant

because Harlow's qualified immunity standard is far more demanding

than the objective component of the common law probable cause

inquiry, since private actors are not charged with the same amount

of knowledge regarding the law as public officials.                      As Justice

Kennedy   noted,       "there    is   support     in    the   common   law   for   the

proposition that a private individual's reliance on a statute,

prior   to    a    judicial     determination      of    unconstitutionality,      is

considered reasonable as a matter of law."                    

(citing

Birdsall v. Smith, 

, 627 (Mich. 1909)).                    In addition,

"'[t]he layman's ignorance of the law has been taken into account

in the almost universal holding that probable cause is established

where the prosecution was instituted with the advice of counsel.'"

Duncan v. Peck, 

, 1267 (6th Cir. 1988) (quoting


                                          15
Prosser & Keeton, The Law of Torts § 119 (5th ed. 1984)).            See also

Bishop, § 236, at 93-94; Cooley, at 183-84; 1 Harper & James, at

313-14, 322.       Aside   from   these   bright-line   rules,      the   Court

recently provided additional guidance on the contours of the

probable   cause   inquiry   in   Real    Estate   Investors   v.    Columbia

Pictures, 

(1993), where it revisited this issue in

the context of antitrust sham litigation.           There, the Court held

that "[p]robable cause to institute civil proceedings requires no

more than a 'reasonabl[e] belie[f] that there is a chance that [a]

claim may be held valid upon adjudication.'"         

(quoting

Hubbard v. Beatty & Hyde, Inc., 

, 488 (Mass. 1961)

(alterations in original)); Restatement (Second) of Torts § 675,

Comment e, pp. 459-60 (1977) ("In determining probable cause for

initiation of civil proceedings, all that is necessary is that the

claimant reasonably believe there is a sound chance that his claim

may be held legally valid upon adjudication").

     In light of these considerations, we think that private

defendants, at least those invoking ex parte prejudgment statutes,

should not be held liable under § 1983 absent a showing of malice

and evidence that they either knew or should have known of the

statute's constitutional infirmity.           The record in this case

discloses that the Mississippi replevin statute invoked by Cole,

while perhaps placed in "legal jeopardy" by our decision in Johnson

v. American Credit Co., 

(5th Cir. 1978), 

, remained good law at the time of his suit.        Moreover, there

is evidence that Cole relied on Robbins' advice in filing his


                                     16
complaint      in    replevin.        We   need    not,   however,       rely    on    the

categorical common-law rules cited above to find that probable

cause supported Cole's resort to the state procedures, for, as we

stated in our prior opinion, "[w]e need not conclude that a private

actor is entitled to rely on any statutory relic, regardless of its

current absurdity," in order to hold "that reliance upon the

statute by the private actors was not an act of unreasonable

.3

       Having concluded that Cole's and Robbins' invocation of the

Mississippi statute was not objectively unreasonable, we turn to

consider       whether    they   in     fact      believed   the     statute      to    be

constitutionally valid at the time of the suit.                         Wyatt contends

that       Cole's    professed   good      faith     reliance      on    the    replevin

procedures is undermined by the existence of several facts tending

to show that Cole filed the complaint out of malice.                     Wyatt alleges

that Cole threatened to use "political influence" to secure the

return of his cattle, had no grounds under state law for bringing

his action in replevin, and refused to restore the property seized

in violation of a state court order.

       We will assume for purposes of decision that Wyatt's account

of these events is true.                We do not see, however, how these

allegations detailing Cole's misuse and abuse of state procedures


       3
          Wyatt argues that Robbins, as an attorney, should be
held charged with a greater knowledge than other private
defendants. We disagree. As we indicated in our first opinion,
Robbins "is subject to the same standard of good faith as Cole
because the relevant distinction is between persons acting
privately and those acting for the state. 

n.5.

                                           17
bear on whether he in fact believed the Mississippi statute to be

constitutionally infirm.   It is this narrow question, not whether

Cole exhibited a generalized "malice" by filing suit for improper

reasons, that is relevant in determining whether probable cause

lies.   As we noted above, 

, p. 8-9, state law claims are

not cognizable under § 1983.   Wyatt seeks to hold Cole liable for

damages for invoking the statute that led to the deprivation of his

property without due process.    Unless we may infer defendant's

knowledge of federal law from his alleged violations of state law,

the latter have no bearing on the probable cause inquiry.   In the

absence of any evidence that either Cole or Robbins had actual

knowledge of the replevin statute's constitutional infirmity, we

hold that the district court properly barred Wyatt's damage claims

against them.

                                IV.

     For the foregoing reasons, we affirm the district court's

judgment.




                                18