San Diego Law Review

Library of Congress Authority File


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William Whirl was arrested on suspicion of felony-theft in September 1962 an booked in the Harris County, Texas jail. He was indicted by the Grand Jury on two felony counts. On November 9, 1962, the District Attorney of Harris County moved by nolle prosequi to dismiss the indictment on the basis that the prosecution had insufficient evidence on which to obtain and sustain a conviction. The court approved the dismissal of the indictment against Whirl and an order of dismissal was dispatched to the jail. For some unknown reason, the jailer never received notice of the dismissal, and Whirl was forced to extend his stay in Sheriff Kerns’s hostelry for an additional eight plus months. Upon his release, Whirl brought an action against the Sheriff of Harris County, C.V. (Buster) Kern, claiming Code, section 1983, and for false imprisonment under Texas law. The Federal District Court for the Southern District of Texas, found for defendant Kern and on appeal the Fifth Circuit reversed in favor of plaintiff Whirl. The Fifth Circuit’s reversal was based on their conclusion that a cognizable claim under section 1983 only need show that defendant acted under color of law and that as a result, the plaintiff was deprived of his civil rights. The court heard but refuted defendant’s claim that to recover, plaintiff must show that defendant’s act was improperly motivated. Sheriff Kern’s claim that plaintiff’s continued detention was privileged by good faith was not considered an adequate defense, as common law tort principles of false imprisonment do not recognize an unlawful detention as privileged even where good faith is evidenced. Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969). The purpose of this Comment is: (1) to discuss the significance of improper motive or reprehensible conduct as applied to section 1983 and the exclusion of improper motive from the substantive law; (2) to examine the defenses under section 1983 applicable to false arrest and false imprisonment; (3) to survey some of the policy reasons behind the extension and limitation of civil liability of police.

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