Circuit Judge (concurring in part and dissenting in part):
The result reached by the opinion of the court is entirely acceptable to me. I unreservedly agree that the award in damages is pitifully inadequate and should be reassessed.
My departure is solely on the utilization of 42 U.S.C. § 1983 as a premise of recovery. This statute, as I understand, was never envisioned as a means of re-coupment for injuries caused by the negligence of a State officer acting in the course of his duty.
Clarity in my position may be improved by reiterating the precise claim pleaded by the plaintiff, and noting the basis upon which this court now allows the Federal statute to be invoked. The shooting of the plaintiff with his subsequent arrest is the tort for which he sues. The prior pursuit of him is not pleaded as in itself tortious conduct. He was untouched until the shooting.
The shooting was determined by the District Judge to be accidental, due to gross or culpable negligence. This court agrees, saying, “He [the District Judge] also found that Averett [the defendant] did not intend to shoot the plaintiff. On the other hand, the District Judge found that defendant was grossly or culpably negligent. This finding is well supported by the record.” (Accent added.) Hence, neither the trial judge nor the court combines intent with negligence. Certainly actual intent is not made an element of the injurious deportment here.
Nevertheless, the court inaptly cites for its position decisions declaring that arbitrary inflictions of injury by State officers are “constitutionally cognizable and remediable”. With these holdings I have no quarrel. But be that as it may, that proposition is irrelevant when the trial court and this court both put the blame upon negligence, not arbitrariness. Arbitrary “conduct [is] subject to the individual’s will or judgment without restriction; contingent solely upon one’s discretion”. The Random House Dictionary of the English Language (Stein ed. 1966). Obviously, it does not include an accident.
Notwithstanding the majority’s initial confession of accident as the exclusive ground of recovery, it now attempts to add intent as present in the shooting. It does so by giving gross and culpable negligence the identity of intent. This is the critical and overtopping infirmity of the majority opinion — an impermissible dilation of the holding of Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
Contrary to the opinion of the court presently, nowhere in Pierson is negligence — gross or culpable — equated with “deprivation”, the term used in 1983 to describe the wrongdoing. Nor does Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) allow this argument. In the former, the tort was false arrest and imprisonment — a deliberate act. In the latter, the intrusion was a clear, aggressive and aggravated entry and outrageous search — not an accident.
Specifically, the fact that gross or culpable negligence may under State law substitute for intent does not demand that interpretation of 1983. While Pier-son permits the interposition of common law defenses, the decision embraces under 1983 only a claim for a common law tort involving actual intent as distinguishable from a tort merely requiring negligence.
The statute does not contemplate the conversion of every common law responsibility into a 1983 case — certainly not through dependence upon common law fictions. Indeed, the majority cites no authority warranting this per saltum handspring into 1983. Gross or culpable negligence still remains negligence, and the common law picks it up in that sense *1235solely as a fictional equal of intent. Nothing in the Federal statute impliedly or expressly condones a comparable adaptation.
Otherwise, under 1983 such offenses as involuntary manslaughter, or even reckless driving in circumstances, would be actionable as deprivations of civil rights. Given the scope the court now grants it, 1983 would indeed be all-pervasive. As one example, it would allow a State health officer or official physician to be sued for an accident, or for gross and culpable negligence, in treating a patient at a public clinic. Again, a driver of State fire equipment answering an alarm could be sued under 1983 for injuries inflicted on spectators on the street if caused by his negligence, if gross and culpable. Suppose, further, he destroyed, damaged or trespassed upon private property, would he be liable for depriving the owner of his civil rights? Illustrations of this sort are innumerable. The statute would enter into every instance of possible gross carelessness by a State representative in the performance of his duties. This, I believe, was not within the purpose, aim or in-tendment of the enactment.
While exhaustion of a State remedy is not prerequisite to a suit upon 1983, the opposite seems equally true — every culpable and gross act by a State representative causing injury is not remediable under 1983. Its “purposes [are] several-fold — to override certain kinds of state laws, to provide a remedy where state law [is] inadequate, ‘to provide a federal remedy where the state remedy, though adequate in theory, [is] not available in practice’ (citation omitted), and to provide a remedy in the federal courts supplementary to any remedy any State might have.” McNeese v. Board of Education, 373 U.S. 668, 671-672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963).
In my appraisement the facts now related in the court’s opinion do not bring the case for 1983 under any of these contingencies, so I dissent from any reliance upon it.