(specially concurring):
I concur fully in the result and in Judge Morgan’s opinion for the Court, but I think that a few additional observations are in order.
While I accept the Court’s reasoning that the issue is the elements of the defense, not the basic question of liability, I would approach the problem from a different tack. When the Supreme Court in Monroe v. Pape, supra, spoke of the application of common-law principles, they did not intend permanently to freeze the concept of immunity, liability or available defenses, to that of existing law, see Imbler v. Pachtman, 1976, - U.S. -, -, 96 S.Ct. 984, 47 L.Ed. 2d 128, 138 [44 U.S.L.W. 4250, at 4254, 1976]; Wood v. Strickland, 1975, 420 U.S. 308, 318-21, 95 S.Ct. 992, 999, 43 L.Ed.2d 214, 223-24; Scheuer v. Rhodes, 1974, 416 U.S. 232, 239, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90, 98; Pierson v. Ray, 1967, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288, 296.
The principle of the common law system is not that of a static approach looking only to the past. The doctrine of qualified immunity which the Supreme Court has developed and which we find so handy here, is really just the natural development that is basic to a common law country, by which the interpretation and application of a statute or a principle, is modified by experience.
I believe it is experience, not just the fortuitous contemporary development of qualified immunity under § 1983, that should lead us to today’s determination that the holding in Whirl v. Kern, that there is no defense of good faith in its sweeping literal categorical form cannot stand unmodified.1
When we hear the word “Sheriff” we think of a gun-bearing, star-wearing Pat Garrett personally chasing down Billy the Kid. But in the modern metropolitan areas of the Fifth Circuit, which include San Antonio, Houston, Dallas, New Orleans, Birmingham, Jacksonville, Atlanta and Miami, among others, we know that this romantic image is not so. The briefs in this case reveal that the average daily jail population in Dallas *1216County is 1500-1600. Nine Criminal Courts and six County Courts with criminal jurisdiction, process the thousands of cases that annually pass through the criminal justice mill.
Judge Bue’s celebrated opinion in Alberti v. Sheriff of Harris County, S.D. Tex., 1975 [18 Cr.L. 2404, Dec. 12, 1975] (not appealed from) has focused attention on the conditions in the Harris County (Houston) jail which is under the authority of the Sheriff, (formerly Sheriff Kern of Whirl fame). Judge Bue ordered sweeping injunctive reforms, on the basis of a record that indicates that administrative, logistical management problems are at the heart of humane, dignified prison detention. The two Harris County jail facilities have an average daily population of 2400 — there are 12 Criminal District Courts and 9 County Criminal Courts-at-Law. To man these jail facilities takes over 100 guards and supervisors.
The importance of these figures, joined with the continuing judicial development of qualified official immunity, is that experience takes into account that in today’s 220 million population in the United States, 12 million in Texas, law enforcement has a major problem in pure administration. The lone Sheriff of the old West today is an administrator. He may wear cowboy boqts and a XXXX Stetson, but whether he likes it or not, performing his public duty makes him an administrator.
When the law subjects persons as individuals to liability there must be some recognition that the Sheriff, the Chief of Police, or whoever, cannot do it all. He or she must have subordinates, who also have subordinates — each must depend on the other. Ascending the hierarchy each must depend on reports from those below.
More than that, the Sheriff in such a major institution must even delegate the operational responsibility for the reception, care and detention of the prisoners, including even the time when they get out of jail. We know that with 1600 prisoners and 15 Courts with criminal jurisdiction, each issuing orders concerning detention and release, the Sheriff of Dallas County cannot possibly do everything. There is not enough time, nor enough physical energy in one man, to make daily personal rounds to each Court, the prosecutor’s office, the grand jury and jail cells. He must have helpers and once he has established — which he must — a system which eliminates the hazard of mistakes to the maximum reasonable extent, he must depend on the helpers. The law must in some way take that into account.
Since there is the necessity to delegate power and responsibility for the system to function, the Sheriff must have the right to depend upon the inquiries, judgments and reports and frequently actions of subordinates. That makes it essential that the ultimate administrator be able to establish that he had a reasonable basis for his actions and that he acted in good faith, even in depending upon reports or actions that may turn out to be in error.2
I emphasize that this is reasonable good faith. Inescapably what is good faith is a question of fact for each case. But there are strong indicators to help the decision-makers. The Court must consider the kind of responsibility of the official, Scheuer v. Rhodes, supra, 416 U.S. at 246, 94 S.Ct. at 1691, 40 L.Ed.2d at 102. One of the critical elements is that the official demonstrate that he has employed efficient management principles so as to minimize the chance of error and maximize the likelihood of full *1217satisfaction of constitutional and statutory obligations.
If the sheriff of a metropolitan jail, such as Dallas County or Harris County, does not set up an adequate system so that on successive layers of responsibility each person knows exactly what has happened to orders of the Court discharging prisoners, he could not possibly prove good, faith. On the other hand, if he sets up a system that is reasonably watertight, that makes the functionaries check all sources of possible releases of prisoners, and a system for collecting this information and transferring it to the supervisors, and despite the good system and the conscientious performance of duty on the part of everyone concerned, a mistake occurs, clearly that is enough to allow the trier-of-fact to conclude that the sheriff’s continued detention was in good faith.
Courts, and Judges, should know best of all of the problem of crime in this country. The war against it is relentless, and its warriors are largely law' enforcement officers, sheriffs, chiefs of police and the like. Apprehension is insufficient if there is no detention. And for those determined to be detained, awaiting trial or after conviction, there must be a detainer. The gaol-keeper plays a vital role in this continual struggle. But we run a great risk that the public will not have responsible, competent gaol-keepers if, because of a mistake of one or more subordinates in the large but indispensable network of helpers, that officer is cast for large damages payable out of his own pocket3 without the right to persuade the trier that he acted in reasoned good faith.
The law will not require an impossibility and that is what the result would be were we to say that the High Sheriff of Dallas County must go through the jail and personally interview every prisoner or personally inspect all of the papers, including those in the custody of the District Attorney as Prosecutor or the records and judgments in all the criminal courts.
. I do not read the Court’s opinion as dispensing with all of the wisdom of Whirl. The holding in Whirl, 407 F.2d at 787, that a showing of improper motive — a conscious intent to confine without legal basis — is not an element of the prima facie case, clearly remains. Bryan v. Jones, supra, 519 F.2d at 45. The distinctions in duties and responsibility between a police officer and a sheriff — one reacting instantly on the beat, the other administering a jail — are no less valid. It is also clear that good faith is not equated with mere good intentions. See Dowsey v. Wilkins, supra and Johnson v. Greer, supra.
I do disagree, of course, with the following:
Failure to know of a court proceeding terminating all charges against one held in custody is not, as a matter of law, adequate legal justification for an unauthorized restraint.
Whirl v. Kern, supra at 792, and Whirl’s categorical rejection of the good faith defense:
We do not find any cases nor are we referred to any by counsel which provide that “good faith” is a defense to an imprisonment that it not only without valid process, but contrary to it. Nor do we believe as a matter of federal policy that such a defense should be available to a jailer in circumstances like those before us.
Id.
. The dissenting opinions express concern that the Court’s opinion may be read to absolve the Sheriff if the error was made by another. As I construe the Court’s opinion we are not going to exonerate the Sheriff simply because his subordinates did it. This is not a question of respondeat superior. I am assuming that for false imprisonment the man who has command over the body of the prisoner bears the full responsibility for all of his subordinates’ actions or nonactions. But, with respect to the onerous and substantial burdens put on a gaol-keeper and the attendant liability which flows from the nature of his restraint over people, when it comes to testing his liability he has to have good faith immunity. Judge Wisdom and the majority are in agreement with that.
. Where the money is to come from is not an easy question considering the Eleventh Amendment, Gates v. Collier, 5 Cir., 1975, 522 F.2d 81 (en banc), 1976, 525 F.2d 965 (panel); Newman v. Alabama, 5 Cir., 1975, 522 F.2d 71 (en banc), and possible non-liability of subordinate governmental entities for money payments under § 1983. Muzquiz v. City of San Antonio, 5 Cir., 1976, 528 F.2d 499 (en banc); Warner v. Board of Trustees, 5 Cir., 1976, 528 F.2d 505 (en banc).