concurring.
Though I concur with the result in this case, I cannot agree completely with the majority opinion’s treatment of Mrs. Barnier’s § 1983 claim. In my dissent to the recent decision Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985) (en banc) (Keith, J., concurring in part, dissenting in part), I stated:
For some time now concerns have been expressed throughout the federal courts about Section 1983 actions transforming the fourteenth amendment into “a font of tort law to be superimposed upon whatever system may already be administered by the States” or the frivolous case “trivializing the right of action provided in § 1983.” Notwithstanding these sincere concerns, it strikes me that it has long been settled that “Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.”
Wilson, 770 F.2d at 591 (citations omitted).
With respect to the individual police officers, I am of the view that a cognizable claim of misuse of the “badge of authority” could have been made out against them were it not for the adequacy of the state law remedy. Neither Parratt v. Taylor, 451 U.S. 527,101 S.Ct. 1980, 68 L.Ed.2d 420 (1981), Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) nor Wilson v. Beebe would impede such a view. In Parratt v. Taylor, the Supreme Court held that negligent conduct which results in the deprivation of property without adequate procedural due process is not actionable under § 1983. Similarly, in Hudson v. Palmer, the Court made § 1983 relief unavailable for intentional conduct resulting in deprivations of property without adequate procedural due process. Justices Blackmun and White believed that Parratt did not apply to deprivations of life and liberty. Parratt 451 U.S. at 545, 101 S.Ct. at 1918 (White, Blackmun, J.J., concurring). This circuit disagreed in Wilson, stating that:
Though Parratt v. Taylor concerned the loss of property, we see nothing in its underlying rationale which would require a different treatment of due process claims for deprivation of liberty.
770 F.2d at 584.
While I continue to maintain that the Wilson holding is an overly restrictive, even niggardly construction of the protections provided by § 1983, I believe that there are some limits to Wilson’s reach. Wilson removed from § 1983’s ambit “random and unauthorized acts” which deprived a person of liberty given an adequate, post-deprivation state remedy. Wilson, 770 F.2d at 584. Wilson did not, however, require a plaintiff intentionally deprived of his liberty pursuant to an established procedure to pursue a remedy other than that provided by § 1983. In fact, the facts of Wilson necessarily limit the case to negligent deprivations of liberty through random and unauthorized acts.1
In the instant case, the individual police officers intentionally committed the act which deprived the Barniers of their liberty, namely the filing of an assault and battery charge so unwarranted that the district court jury found the officers guilty of malicious prosecution. Negligence was not an issue. Moreover, the act may have been pursuant to an established procedure in Milan of permitting police officers to file *601charges against citizens with little more than what appears to be cursory review by the local prosecutor’s office. If such a procedure could be proven, the acts of the police officers cannot be characterized as “random and unauthorized.” As Justice Blackmun noted in Parratt:
While the “random and unauthorized” nature of negligent acts by state employees makes it difficult for the State to “provide a meaningful hearing before the deprivation takes place” .. it is rare that the same can be said of intentional acts by state employees. When it is possible for a state to institute procedures to contain and direct the intentional actions of its officials, it should be required, as a matter of due process, to do so.
451 U.S. at 545, 101 S.Ct. at 1918.
It would appear to me, then, without analyzing the availability of state law remedies, that Mrs. Barnier’s claim was eligible for § 1983 relief.
I raise these points out of a deep apprehension that § 1983 is being eroded, slowly but surely, as a bulwark against unlawful governmental action. To deny a plaintiff § 1983 relief because of the adequacy of a state remedy is certainly in keeping with the purposes of the statute and to that extent, I concur with Judge Wellford’s opinion. However, to remove at the outset of one’s analysis liberty, property and substantive due process interests from § 1983’s protection, regardless of whether there is an adequate state remedy or not, is to cut away at the very core values § 1983 is designed to protect. If courts are concerned about a supposed “flood” of § 1983 actions intruding on federal dockets, then the proper recourse should be an evaluation of the availability of state remedies, not wholesale elimination of entire classes of actions from § 1983 coverage. Much like throwing the baby out with the bathwater, we risk the gutting of § 1983 in an overzealous pursuit of judicial efficiency. Yet, with the adequacy of the state law remedy as an existing limit on § 1983, we risk that outcome unnecessarily.
With these reservations, I concur in Judge WELLFORD’s opinion.
. In Wilson, the § 1983 defendant police officer arrested the plaintiff and, while holding his cocked revolver in one hand, attempted to handcuff him. During the procedure, the revolver accidently discharged into the plaintiffs back, causing grevious injury to the plaintiff.