dissenting in part.
In this unfortunate case a Michigan state trooper negligently shot and almost killed a person he had just arrested. The Court’s decision today reverses the District Court’s approval of a magistrate’s determination that the plaintiff cannot maintain a claim for this conduct under 42 U.S.C. § 1983, but upholds the District Court’s decision that plaintiff had pled and proved a pendent state cause of action which entitled him to relief in the amount of $2,569,638.
First, I agree with the conclusion of our Court that notwithstanding Parratt v. Taylor, 451 U.S. 527 (1981), a negligent deprivation of a liberty interest may violate the fourteenth amendment due process clause and thus may form the basis for a claim under section 1983. We have recently interpreted Parratt to impose liability based on a negligent deprivation of a liberty interest. Brandon v. Allen, 719 F.2d 151 (6th Cir.1983), cert. granted 52 U.S.L.W. 3839 (U.S. May 21, 1984).
In Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983), we held that in section 1983 damage suits claiming the deprivation of a property interest without procedural due process, the plaintiff must plead and prove that state remedies for redressing the wrong are inadequate. See id. at 1065. It is important to note that we limited our decision in Vicory to constitutional torts implicating property interests. See also Parratt, 451 U.S. at 545 (Blackmun, J., and White, J., concurring) (limiting Parratt principle to property interests). I would continue to limit Parratt to claims arising out of property deprivation without procedural due process because, as Justice Blackmun stated in his concurrence in that case, “I continue to believe that there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process.” Id. at 545.
The Ku Klux Klan Act of 1871, the original legislative source of § 1983, was enacted as a weapon to combat deprivations committed by the Ku Klux Klan and other groups against Blacks in the Reconstruction-era South. The drafters were concerned not about property interests but about the liberty of recently-freed slaves. Acts of violence and lawlessness — the deprivations of liberty — which were at the heart of the statute deserve more careful scrutiny than the property deprivations which the statute has since been held to encompass, as Justices White and Black-mun suggest.
I disagree, however, with the Court’s conclusion that the District Court’s finding of negligence liability can properly be based upon a pendent state claim, for I can find no such claim in any of the plaintiff’s pleadings. Even the District Court, in adopting the Magistrate’s report and recommendations, pointed out that the Magistrate’s determination on the pendent state claim was in error:
The Magistrate, in the “summation” portion of his opinion, stated that “defendant Beebe is held liable to plaintiff Wilson under a theory of common law negligence as alleged in Count II of the complaint.” (Report at 7). For two reasons this conclusion is erroneous: First, Count II of plaintiff’s complaint did not implicate defendant Beebe and only alleged negligent supervision and entrustment on the part of various supervisors of the defendant; and second, even if Count II did state a claim against defendant Beebe, that count was dismissed pri- or to trial by this Court’s opinion of August 9, 1977, as affirmed by the Sixth Circuit in Wilson v. Beebe, 612 F.2d 275 (CA 6, 1980).
Memorandum Opinion and Order at 6, Joint App. at 116. The District Court goes on to suggest that since defendant “defended against this [pendent state claim found by *352the Magistrate] for relief” throughout the lawsuit, and since the Federal Rules of Civil Procedure set forth a philosophy of “notice pleading,” the Magistrate’s “oversight” should be disregarded. I do not agree. However sympathetic plaintiff’s may appear, we cannot afford to undermine the rule that requires a cause of action to be pled and explicitly recognized and consciously litigated first before the court bases a verdict and judgment on it— here a verdict of $2.5 million.
Finally, in erroneously dismissing plaintiff’s section 1983 claim, the District Court also erred in not considering any defense of qualified immunity defendant might have under section 1983 as interpreted by Gomez v. Toledo, 446 U.S. 635 (1980) and Harlow v. Fitzgerald, 457 U.S. 800 (1982). I would therefore reverse the state claim and remand this case to the District Court for reconsideration of plaintiff’s section 1983 claim for a deprivation of liberty and for consideration of defendant’s qualified immunity defense.