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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 official 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,
1Prior 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.
2La.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
3La.R.S. 32:412 G.
4Notwithstanding this stipulation, Jackson asserts on appeal that the arrest was not supported
by probable cause. See infra.
5Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir.1984); Mahone v. Addicks Utility Dist.,
836 F.2d 921 (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, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); see
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (adopting Classic standard
for purposes of § 1983) (overruled in part on other grounds, Monell v. N.Y.C. Dep't of Social
Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1330 (1945).
7Jackson 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, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664

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, 452 U.S. 89, 99, 101 S.Ct. 2193, 2199, 68 L.Ed.2d 693
(1981), further citations omitted).
9If 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, 968 F.2d
1480 (2d Cir.1992) (whether officers act under color of valid authority pursuant to state
law affects constitutionality of arrest); Ross v. Neff, 905 F.2d 1349 (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, 922 F.2d 1183 (5th Cir.1991) (no
cause of action for false arrest under § 1983 unless arresting officer lacks probable cause);
Street v. Surdyka, 492 F.2d 368 (4th Cir.1974).
10La. Const. art. V § 27 (1974) (emphasis added).
11La. Const. art. V § 32 (1974). Orleans Parish, unlike the other parishes, has a separate civil
sheriff who is executive officer of the civil court.
12La. 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
13La.R.S. § 33:1435 (emphasis added).
14La. Const. art. V § 27 (1974).
15See Richardson v. Heyd, 278 So.2d 167 (La.App.1973).
16New 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,
17500 So.2d 771 (La.1987).
18Id. at 773 n. 4.
1964 So.2d 225 (La.1953).
20Id. at 228. (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
211944-46 Op. Att'y Gen. 906 (1946) (emphasis added).
22No. 90-181 Op. Att'y Gen. 107 (1990).
23Id.
24No. 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.