Jerome Singleton v. City of New York, Ronald Salzer and Anthony Dellaventura

WEINSTEIN, District Judge

(dissenting):

Based on the pleadings, which must at this stage be construed most favorably to the plaintiff, and the theory upon which the complaint was dismissed, the facts and law *196 may be summarized as follows: Plaintiff, a black man, was arrested in a restaurant without cause under humiliating circumstances and beaten on November 14, 1975. Defendant policemen, chagrined and frustrated because they had no basis for the arrest, and in order to punish plaintiff for protesting, falsely charged him with a felonious assault upon themselves and with resisting arrest. On November 15, 1975, plaintiff was arraigned as a result of defendants’ false charges. Despite defendants’ malicious perjury at trial, the jury was unable to reach a verdict. All actions of defendants were taken solely because of plaintiff’s race and to deprive him of his constitutional rights.

On July 14, 1976, the state criminal court ordered the prosecution adjourned in contemplation of dismissal and it was dismissed on December 16, 1976. Plaintiff commenced this civil rights action on February 9, 1979 pursuant to section 1983 of title 42 of the United States Code, alleging deprivation of rights secured by the Constitution and laws of the United States.

According to the federal law, as now interpreted, plaintiff’s complaint, though clearly sufficient on the merits, must be dismissed because his claim for relief is divided into three discrete causes of action for purposes of the applicable state statutes of limitation. The first and second, for false arrest and assault, were barred on November 14, 1978, three years after the arrest and beatings. The third, for malicious prosecution, although timely, was insufficient because the result was not favorable to plaintiff — even though it resulted in a dismissal of all criminal charges against him and destruction of all photographs, fingerprints and other like materials and the sealing of other records — and, under New York law no cause of action arises if the criminal proceedings do not eventuate in plaintiff’s favor.

I.

GENERAL CONSIDERATIONS

This is a curious result. Plaintiff is denied redress for a presumptively valid claim. Others in a like situation are encouraged to bring 1983 actions before the state criminal action is dismissed and to defend to the bitter end rather than accept voluntary dismissals.

The legal conclusions are inconsistent with a number of legal principles. First, section 1983 of title 42 should be liberally construed as remedial legislation designed to protect the weak and oppressed — and particularly blacks, who most needed protection when the statute was adopted— against lawless actions by policemen. Second, it is a federal remedy that is being sought, and even if state statutes of limitations are received as part of the federal enforcement scheme, their categories cannot be rigidly applied where this would frustrate the federal remedial, statutory and common law. Third, federal procedure emphasizes the whole “transaction” and “claims for relief,” not the pleading of facts upon which are predicated discrete and separable “causes of action,” a theory still extant in the state’s statute of limitations. Fourth, federal civil cases encroaching on pending state criminal proceedings should be discouraged on comity grounds where possible pursuant to the spirit of Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 271 L.Ed.2d 669 (1971). Fifth, federal action unnecessarily frustrating state criminal procedures designed to avoid burdensome criminal trials and unnecessary criminal stigmatizations should be avoided. Sixth, the law should take account of the fact that the people who bring these civil rights cases in the federal courts often proceed pro se, are ignorant of the niceties of state and federal practice, and lack the contacts with the legal profession that the more well-to-do and assured of our society rely on to prevent having claims barred by statutes of limitations. And seventh, every defendant in a criminal case and every defense lawyer would consider it a victory, not a defeat, to have a case dismissed without the necessity for a trial and particularly under a statutory scheme that requires destruction of all photographs and fingerprints and sealing of all agency records showing that a prosecu *197 tion had ever taken place. Federal law should not require such flouting of policy, good practice and common sense.

II.

DISMISSAL OF STATE CRIMINAL PROCEEDING WAS FAVORABLE TO PLAINTIFF

We turn first to the question of whether the dismissal of state criminal proceedings was favorable, permitting a 1983 action by analogy to a state malicious prosecution claim. Under New York law, and, a fortiori, under federal law, terminating a criminal proceeding after adjournment in contemplation of dismissal is in all respects favorable to the defendant.

Section 170.55 of New York Criminal Procedure Law describes the process succinctly:

1. Upon or after arraignment in a local criminal court . .. the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court’s own motion with the consent of both the people and the defendant, order that the action be “adjourned in contemplation of dismissal,” as prescribed in subdivision two.

2. An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice. Upon issuing such an order, the court must release the defendant on his own recognizance. Upon application of the people, made at any time not more than six months after the issuance of such order, the court must restore the case to the calendar and the action must thereupon proceed. If the case is not so restored within such six months period, the accusatory instrument is, at the expiration of such period, deemed to have been dismissed by the court in furtherance of justice.

New York’s adjournment in contemplation of dismissal is unlike other pretrial diversion programs which are premised upon an explicit or implicit admission of guilt. See, e. g., Ark.Stat.Ann. § 43-1232 (Supp.1977) (guilty plea required); Colo. Rev.Stat.Ann. § 16-7 — 401(1) (Supp.1978) (rehabilitation program required); Conn. Gen.Stat.Ann. § 54-76p (West Supp.1979) (same); Wash.Rev.Stat.Ann. § 9.95A.030 (1977) (same). See, generally, Zablotsky, An Analysis of State Pretrial Diversion Statutes, 15 Colum.J.Law and Soc.Prob. 1 (1979); Note, Pretrial Diversion From the Criminal Process, 83 Yale L.J. 827 , 833-834 (1974). In carrying out its program of equating a dismissal under section 170.55 with an acquittal, New York has adopted two other provisions that ensure that the defendant is restored to the status he occupied prior to the arrest and prosecution— complete innocence. They require destruction or sealing of “all” official records of the prosecution. And one provision says explicitly that “a criminal action or proceeding against a person shall be considered terminated in favor of such person.” § 160.50(2). It is hard to see how the state could have spoken more clearly.

A reading of paragraphs (b) and (c) of subsection (2) of 160.50 shows that an order under section 170.55 is equated with a “complete acquittal.” The ancillary provisions state (emphasis supplied):

§ 160.50. Order upon termination of criminal action in favor of the accused.

1. Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of this section, unless the district attorney upon motion with not less than five days notice to such person or his attorney demonstrates to the satisfaction of the court that the interests of justice require otherwise, or the court on its own motion with not less than five days notice to such person or his attorney determines that the interests of justice require otherwise and states the reasons for such determination on the record, the court wherein such criminal action or proceeding was terminated shall enter an order, which shall immediately be served by the clerk of the court upon the commissioner of the division of criminal justice services *198 and upon the heads of all police departments and other law enforcement agencies having copies thereof, directing that:

(a) every photograph of such person and photographic plate or proof, and all palmprints and fingerprints taken or made of such person pursuant to the provisions of this article in regard to the action or proceeding terminated, except a dismissal pursuant to section 170.56 or 210.46 of this chapter, and all duplicates and copies thereof, shall forthwith be returned to such person, or to the attorney who represented him at the time of the termination of the action or proceeding, at the address given by such person or attorney during the action or proceeding, by the division of criminal justice services and by any police department or law enforcement agency having any such photograph, photographic plate or proof, palm-print or fingerprints in its possession or under its control;

(b) any police department or law enforcement agency, including the division of criminal justice services, which transmitted or otherwise forwarded to any agency of the United States or of any other state or of any other jurisdiction outside the state of New York copies of any such photographs, photographic plates or proofs, palmprints and fingerprints, including those relating to actions or proceedings which were dismissed pursuant to section 170.56 or 210.46 of this chapter, shall forthwith formally request in writing that all such copies be returned to the police department or law enforcement agency which transmitted or forwarded them, and upon such return such department or agency shall return them as provided herein, except that those relating to dismissals pursuant to section 170.56 or 210.46 of this chapter shall not be returned by such department or agency;

(c) all official records and papers, including judgments and orders of a court but not including published court decisions or opinions or records and briefs on appeal, relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office be sealed and not made available to any person or public or private agency; and

(d) such records shall be made available to the person accused or to such person’s designated agent, and shall be made available to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires that such records be made available to it, or (iii) any state or local officer or agency with responsibility for the issuance of licenses to possess guns, when the accused has made application for such a license.

2. For the purposes of subdivision one of this section, a criminal action or proceeding against a person shall be terminated in favor of such person where :

(a) an order dismissing the entire accusatory instrument against such person pursuant to article four hundred seventy was entered; or

(b) an order to dismiss the entire accusatory instrument against such person pursuant to section 170.30, 170.50, 170.55, 170.56, 170.75, 180.70, 210.20 or 210.46 of this chapter or section 81.25 of the mental hygiene law was entered or deemed entered and the people have not appealed from such order or the determination of an appeal or appeals by the people from such order has been against the people; or

(c) a verdict of complete acquittal was made pursuant to section 330.10 of this chapter; or ....

§ 160.60. Effect of termination of criminal actions in favor of the accused. Upon the termination of a criminal action or proceeding against a person in favor of such person, as defined in subdivision two of section 160.50 of this chapter, the arrest and prosecution shall be deemed a nullity and the accused shall be restored, *199 in contemplation of law, to the status he occupied before the arrest and prosecution. The arrest or prosecution shall not operate as a disqualification of any person so accused to pursue or engage in any lawful activity, occupation, profession, or calling. Except where specifically required or permitted by statute or upon specific authorization of a superior court, no such person shall be required to divulge information pertaining to the arrest or prosecution.

We have found no New York case holding that a section 170.55 dismissal precludes a claim for malicious prosecution. While obiter dictum in one lower New York court suggests that it viewed such a dismissal as not favorable to plaintiff for that purpose, the holding of the court implies the opposite, for it ruled that a suit for malicious prosecution may not be brought during the six month period before the case is finally dismissed. Kenul v. Hollander, 86 Misc.2d 466 , 382 N.Y.S.2d 650 (D.C.Nass.Co.1976). Cf. Cardi v. Supermarket Corp., 453 F.Supp. 633 (E.D.N.Y.1978) (speaking of Kenul, “Nassau County District Court, also held that a plaintiff who had accepted an ACOD could not maintain a malicious prosecution claim”).

It is no disrespect to the Nassau County District Court to suggest that even in a true Erie situation, as in a diversity case, federal courts would hardly feel bound by a statement of that court on the state of New York law, particularly when it is contrary to the plain words of the statute. As the Supreme Court noted in Commissioner of Internal Revenue v. Bosh, 387 U.S. 456, 465 , 87 S.Ct. 1776, 1782 , 18 L.Ed.2d 886 (1967) (emphasis in original):

Even in diversity cases this Court has further held that while the decrees of “lower state courts” should be “attributed some weight * * * the decision [is] not controlling * * * ” where the highest court of the State has not spoken on the point. King v. Order of United Commercial Travelers, [ 333 U.S. 153 ] at 160-161, 68 S.Ct. [488] at 492. And in West v. American Tel. & Tel. Co., 311 U.S. 223 , 61 S.Ct. 179 , 85 L.Ed. 139 (1940), this Court further held that “an intermediate appellate state court * * * is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” At 237, 61 S.Ct. at 183 (Emphasis supplied.). Thus, under some conditions, federal authority may not be bound even by an intermediate state appellate court ruling. It follows here then, that when the application of a federal statute is involved, the decision of a state trial court as to an underlying issue of state law should a fortiori not be controlling. This is but an application of the rule of Erie R. Co. v. Tompkins, [ 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 ] ....

When federal remedial law is at stake characterization of the effect of the state law for federal purposes is a matter for federal decision and policy. See, e. g., C.A. Wright, Law of Federal Courts, § 60 (1976); Hart and Wechsler, Federal Courts and the Federal System, 762ff (2d Ed. by P. Bator, D. Shapiro, P. Mishkin and H. Wechsler, 1973); Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv.L.Rev. 66, 91 (1955); cf. Westen and Lehman, Is There Life for Erie After the Death of Diversity?, 78 Mich.L.Rev. 311, 315 (1980). Thus, even were the highest court of New York to hold that a section 170.55 dismissal precluded a claim of malicious prosecution, this would not be determinative of the sufficiency of appellant’s federal statutory claim that his federal constitutional rights were violated. See, e. g., Bristow, § 1983: An Analysis and Suggested Approach, 29 Ark.L.Rev. 255, 276-77 (1975); Nahmod, Section 1983 and the “Background” of Tort Liability, 50 Ind.L.J. 5, 38 (1974); Note, Section 1983: An Analysis of Damage Awards, 58 Neb.L.Rev. 580, 590 (1976).

Federal courts should not “apply tort law as if with blinders respecting the federal policy involved, seemingly making tort law determinative of 1983 liability.” Nahmod, Section 1983 and the “Background” of Tort *200 Liability, 50 Ind.L.J. 5, 12 (1974). See also, Bristow, § 1983: An Analysis and Suggested Approach, 29 Ark.L.Rev. 255, 276-277 (1975). State tort law principles and attendant procedures have often been modified in utilizing them through analogy when developing the details of federal 1983 common law. See, e. g., Owen v. City of Independence, 445 U.S. 622, 680 , 100 S.Ct. 1398, 1430 , 63 L.Ed.2d 673 (1980) (Powell, J., dissenting) (“for municipalities in almost 90% of our jurisdictions, the Court creates broader liability for constitutional deprivations than for state-law torts.”); Baker v. McCollan, 443 U.S. 137, 145 , 99 S.Ct. 2689, 2695 , 61 L.Ed.2d 433 (1979) (“Respondent’s innocence of the charge contained in the warrant, while relevant to a tort claim of false imprisonment ... is largely irrelevant to his claim of deprivation of liberty without due process of law.”); Carey v. Piphus, 435 U.S. 247 , 98 S.Ct. 1042 , 55 L.Ed.2d 252 (1978) (failure of common law to recognize an analogous cause of action is not sufficient reason to deny compensation to § 1983 plaintiff); Howell v. Cataldi, 464 F.2d 272, 278 (3rd Cir. 1972) (“A right to relief under § 1983 is not exclusively predicated upon a breach of duty imposed by the law of torts.”); Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969) (short state statute of limitations will not be applied where effect is to burden federally created right); McLaughlin v. Tilendis, 398 F.2d 287 , 290 (8th Cir. 1968) (Illinois Tort Immunity Act could not protect defendant from action grounded in § 1983); Jobson v. Henne, 355 F.2d 129, 133 (2nd Cir. 1966) (in § 1983 suits, common law doctrines of immunity not a bar).

It would indeed be the purest coincidence if the state remedies for violations of common-law rights by private citizens were fully appropriate to redress those injuries which only a state official can cause and against which the Constitution provides protection.

Monroe v. Pape, 365 U.S. 167 , 196 n. 5, 81 S.Ct. 473 , 489 n. 5, 5 L.Ed.2d 492 (1961) (Harlan, J., concurring), overruled in part on other grounds, Monell v. Department of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978).

The Supreme Court has been very careful not to lock itself into a rule that would require it to slavishly follow state categorizations in civil rights cases. As it noted in Johnson v. Railway Express Agency, 421 U.S. 454, 465 , 95 S.Ct. 1716, 1722 , 44 L.Ed.2d 295 (1975):

Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide. . . . [Considerations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration.

See also, e. g., Board of Regents v. Tomania, 446 U.S. 478, 488 , 100 S.Ct. 1790, 1797 , 64 L.Ed.2d 440 (1980) (“in general, state policies of repose cannot be said to be disfavored in federal law.”) (emphasis added). Even when following state law on questions of statutes of limitations in 1983 suits, it recognizes that “considerations of federalism are quite appropriate in adjudicating federal suits based on 42 U.S.C. § 1983 .” Id. at 492, 100 S.Ct. at 1799.

This primacy of federal considerations was recognized by the Second Circuit in Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980), when it rejected the applicable short statute, N.Y. Gen.Mun.Law § 50 — i(1), in a civil rights action against a municipality — even though the state courts would probably have relied upon it — in favor of the three year statute because following state law “would engender unnecessary confusion for litigants” in civil rights cases. See also, e. g., Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980); Jobson v. Henne, 355 F.2d 129, 133 (2d Cir. 1966); Willis v. Reddin, 418 F.2d 702, 704 (9th Cir. 1969).

Regarding a dismissal of a criminal action after an adjournment in contemplation of that dismissal as an unfavorable termination that bars plaintiff’s federal civil rights claim in effect indirectly creates a wholly unwarranted irrebuttable presumption of a criminal defendant’s guilt and would probably be unconstitutional if sought to be ac *201 complished directly. See, e. g., Jackson v. Virginia, 443 U.S. 307, 316, 324 , 99 S.Ct. 2781, 2786-88, 2799 , 61 L.Ed.2d 560, 571, 576-77 , rehearing denied, 444 U.S. 890 , 100 S.Ct. 195 , 62 L.Ed.2d 126 (1979); In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970); Jeffreis and Stephen, “Defenses, Presumptions and Burden of Proof in the Criminal Law,” 88 Yale L.J. 1325 , 1396 (1979). No state or federal need justifies such a harsh result. The state court has not made a determination of guilt that would be undermined by permitting pursuit of a federal civil rights remedy. The state prosecutor cannot claim an interest in protecting police officers who may have acted in bad faith and in violation of the Constitution.

It is significant that in construing section 1988 of title 42, the Civil Rights Attorneys Fees Award Act of 1976, the Supreme Court rejected the contention that settlement of a civil rights suit under section 1983 precluded the plaintiff’s being deemed a prevailing party for the purpose of obtaining counsel fees. The Court noted:

The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees. Nothing in the language of § 1988 conditions the District Court’s power to award fees on full litigation of the issues or on a judicial determination that the plaintiff’s rights have been violated.

Maher v. Gagne,-U.S.-,-, 100 S.Ct. 2570, 2575 , 65 L.Ed.2d 653 (1980). A fortiori that conclusion should be true in determining how federal 1983 common law should treat New York’s dismissal of a criminal action without a full trial. For, even if plaintiff in the present action had been tried and acquitted, the verdict would have established no more than the failure of the jury to be convinced beyond a reasonable doubt of his guilt. A voluntary dismissal by the state is at least as satisfactory an indication of innocence. Cf. Morrison v. Jones, 551 F.2d 939, 940 (4th Cir. 1977) (“After his trial ended with a hung jury, the prosecution dismissed the charges against him;” treated as a favorable disposition despite lack of “not guilty” verdict).

The fact that there was a mistrial before dismissal is of no significance. The mistrial may have been due to one holdout prejudiced juror insisting on a guilty verdict or to one insisting on the opposite. We do not know and the law lacks curiosity on the point because it is irrelevant. For good reason it is against federal policy even to inquire into what led a jury to agree or fail to agree. See, Federal Rules of Evidence, Rule 606(b); 18 U.S.C. § 1508 . After a mistrial, if there is another trial and an acquittal, any court would consider the acquittal a favorable termination for the purpose of determining the right to bring a state tort or federal civil rights suit. See, e. g., Lee v. City of Mount Vernon, 68 A.D.2d 902, 903 , 414 N.Y.S.2d 215, 217 (2d Dep’t. 1979), aff’d, 49 N.Y.2d 1041 , 429 N.Y.S.2d 557 , 407 N.E.2d 404 (1980). It should make no difference that, after a mistrial, there is a dismissal having exactly the same legal effect as an acquittal.

III.

CLAIMED VIOLATIONS BY POLICE CONSTITUTED A SINGLE TRANSACTION NO PART OF WHICH WAS BARRED BY THE STATUTE OF LIMITATIONS

Congress enacted section 1988 of title 42 in conjunction with section 1983. Section 1988 requires the application of federal law, unless it is found to be deficient, and then authorizes the use of state law so far as it is not inconsistent with the Constitution, section 1983 or other federal laws. The provision reads in part:

§ 1988. Proceedings in vindication of civil rights.

The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapt *202 ed to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause ....

Accrual is a matter of federal law since there exists a body of case law concerning accrual of federal 1983 claims and — despite some theoretical considerations to the contrary — federal common law is part of the “laws of the United States” under section 1988. Rawlings v. Ray, 312 U.S. 96, 98 , 61 S.Ct. 473, 474 , 85 L.Ed. 605 (1941) (state statute of limitations applicable but the time of accrual “is a federal question”); Cope v. Anderson, 331 U.S. 461 , 67 S.Ct. 1340 , 91 L.Ed. 1602 (1947) (same). Determination of when a claim for relief accrues remains a question of federal law in section 1983 suits. Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974); Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977). It is therefore inappropriate to be bound by any rigid interpretation of state tort, procedural or remedial law in determining the accrual date of plaintiff’s federal civil rights claim.

The prevailing view is that accrual for section 1983 purposes occurs at the time of the assault or when the plaintiff is released on bail after the arrest. Rinehart v. Locke, 454 F.2d 313 (7th Cir. 1971). But cf. Bireline v. Seagondollar, 567 F.2d 260 (4th Cir. 1977) (cause of action accrues when the plaintiff knows that the defendants have interfered with constitutional rights). In light of the facts present here, however, determination of accrual must consider the total transaction reflected in the series of events set forth in the complaint.

The transaction theory is deeply imbedded in all aspects of modern federal civil procedure — and it is federal procedure which must be followed in these federal actions. In the Federal Rules of Civil Procedure pleadings, Rule 10(b), compulsory counterclaims, Rule 13(a), crossclaims, Rule 13(g), third-party practice, Rule 14(a), relation back of amendments, Rule 15(c), joinder of claims and remedies, Rule 18, joinder of parties, Rule 20(a), and intervention as of right, Rule 24(a), are all founded upon a concept of the transaction as a basis of a claim for relief. See, e. g., Clark, Two Decades of the Federal Procedural Rules, 58 Col.L.Rev. 435, 449-51 (1958). Cf. Gomez v. Toledo, - U.S. -, 100 S.Ct. 1920 , 64 L.Ed.2d 572 (1980) (federal common law governs allocation of pleading and proof in 1983 suits; plaintiff need not plead public official’s bad faith in order to state a claim for relief).

The plaintiff’s claim of fourth and fifth amendment violations consisting of an assault, an unreasonable arrest, and a malicious prosecution by defendants operates as a chronicle of the specific injuries that occurred during the course of the entire transaction in question. From the moment of plaintiff’s first contact with the police to the moment of dismissal there was a single series of interlocking events where, according to plaintiff’s well-pleaded theory, the policemen continued to press their prosecution as part of their original unconstitutional design. As a practical matter, the plaintiff contends, their continuing attack, unknowingly aided and abetted by the criminal court system of the state, was intended as a defense against any possible claim by plaintiff of illegal arrest and beating.

Isolating the specific injuries is helpful in several ways. First, it enables the court to better identify the rights that have been infringed. Second, it establishes the time frame during which the deprivation occurred. Lastly, it provides a basis for assessing the damages suffered by the plaintiff. But this process should not be carried to the point of frustrating a valid claim.

Instances of specific injury do not provide a foundation for fractionalizing plaintiff’s federal civil rights claim into several state tort causes of action. Cf. Kirkland v. City of Buffalo Board of Education, 622 F.2d 1066, 1068 (2d Cir. 1980) (where claims are *203 “directly related,” procedural requirements should not act as a bar); Mitchell v. United Parcel Service, Inc., 624 F.2d 394, 397 (2d Cir. 1980) (a “fractionalized approach” should not be used where a state statute of limitations is applied to a federal cause of action — the paramount interest is the effectuation of the federal policy at issue).

Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962), is instructive. Smith was about to distribute a religious tract when he was seized by two police officers who detained him for ten minutes and destroyed some of the literature. These acts allegedly deprived him of the right to free speech and free exercise of religion, the right not to be deprived of property without due process of the law, and the right to be secure against unreasonable searches and seizures. The district court held that plaintiff stated claims for assault, battery, false imprisonment and conversion and that different statutes of limitations should be applied to determine if any, or all, were time-barred. In reversing, the Ninth Circuit determined that it was inappropriate to apply different statutes of limitations to each of several injuries that emanated from the constitutional violations claimed by plaintiff as the basis of his 1983 suit. It declared:

Section 1983 of the Civil Rights Act clearly creates rights and imposes obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course give rise to a cause of action in common law tort as well as to a cause of action under section 1983, but the elements of the two are not the same. The elements of an action under section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common law tort; both might be present without creating common law tort liability. As Mr. Justice Harlan recently suggested, “a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.” [Monroe v. Pape, 365 U.S. 194 , 196, 81 S.Ct. 473, 489 , 5 L.Ed.2d 492 (1961), overruled in part, Monell v. Department of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978)] .... the single cause of action under the Civil Rights Act alleged in the complaint includes three distinct causes of action under State law and calls for the application of two distinct State statutes of limitations ... Inconsistency and confusion would result if the single cause of action created by Congress were fragmented in accordance with analogies drawn to rights created by state law and the several differing periods of limitation applicable to each state-created right were applied to the single federal cause of action.

Smith v. Cremins, 308 F.2d 187, 190 (9th Cir. 1962) (emphasis added); see also, Walden III, Inc. v. State of Rhode Island, 576 F.2d 945 (1st Cir. 1978) (for reasons of federal policy, it is preferable that one statute of limitations apply to all § 1983 suits); Beard v. Robinson, 563 F.2d 331, 337 (7th Cir. 1977), cert. denied, 438 U.S. 907 , 98 S.Ct. 3125 , 57 L.Ed.2d 1149 (1978) (“. . . the often strained process of characterizing civil rights claims as common law torts ...” should be avoided); Taylor v. Mayone, 626 F.2d 247 (2d Cir. 1980); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 449 (2d Cir. 1980); Gipson v. Township of Bass River, 82 F.R.D. 122, 126 (D.N.J.1979) (“a state tort claims statute simply cannot be used here [in a § 1983 suit] to bar a federal right.”).

Inconsistency and confusion result if accrual for the purposes of a federal civil rights claim is ascertained by dividing the course of conduct complained of into separate causes in wooden reliance on state tort law concepts. The notion of a continuing tort is an integral part of federal law. Gordon v. City of Warren, 579 F.2d 386 (6th Cir. 1978); Briley v. State of California, 564 F.2d 849 (9th Cir. 1977). In light of the total transaction present here the remedial and deterrent purposes of section 1983 are *204 furthered by providing plaintiff with a reasonable opportunity to become aware of his injuries and his rights and to pursue his federal remedy. Cf. Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974) (legal and practical difficulties faced by plaintiff in instituting and prosecuting civil rights claim influence federal court’s determination of accrual date and applicability of state tolling provisions in a way facilitating federal suit); United States ex rel. Sabella v. Newsday, 315 F.Supp. 333 (E.D.N.Y.1970) (same).

It is also appropriate to take judicial notice of the fact that the type of transaction complained of by plaintiff is not an uncommon or isolated activity. One study of police patrols indicated that “many policemen, whether or not the facts justify it, regularly follow their use of force with the charge that the citizen was assaulting a policeman or resisting arrest.” Radzinowicz and Wolfgang, Crime and Justice, Vol. II, 149 (1977) (excerpting Reiss, Police Brutality, Answers to Key Questions). Section 1983 was designed to provide a remedy for this kind of police abuse. The modernization of pleading and practice in the federal courts was intended to make it possible to apply procedural rules with an understanding of the reality of the whole transaction.

IV.

POLICY OF SECTION 1983 IS TO PROTECT THOSE LEAST APT TO KNOW RIGHTS

The primary purpose of the Civil Rights Act of 1871 “. .. was to enforce the fourteenth amendment through the imposition of civil and criminal liabilities on those who deprived others of constitutionally protected rights.” Note, Actionability of Negligence Under Section 1983 and the Eighth Amendment, 127 U.Pa.L.Rev. 533, 537-8 (1978) . See also, e. g., Monell v. Department of Social Services, 436 U.S. 658, 683-9 , 98 S.Ct. 2018, 2032-8 , 56 L.Ed.2d 611 (1978); Note, Developments in the Law-Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1154 (1977); Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L. Rev. 1323, 1357 (1952).

In both Houses, statements of the supporters of § 1 [§ 1983] corroborated that Congress, in enacting § 1 [§ 1983], intended to give a broad remedy for violations of federally protected rights.

436 U.S. at 685 , 98 S.Ct. at 2033.

[T]here can be no doubt that § 1 [§ 1983] of the Civil Rights Act was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights.

436 U.S. at 700-1 , 98 S.Ct. at 2041. “As remedial legislation, section 1983 is to be construed generously to further its primary purpose.” Gomez v. Toledo,-U.S.-, -, 100 S.Ct. 1920, 1923 , 64 L.Ed.2d 572 (1980).

Application of state rules requiring the fraetionalization of plaintiff’s 1983 claim and the dismissal of plaintiff’s due process claim directly interferes with that provision’s dual policies of compensating the victims of unconstitutional action and deterring like misconduct in the future. Many of these civil rights actions are brought pro se by poor, ignorant and ill-advised plaintiffs. We ought not place unnecessary barriers in the way of the lowest socio-economic groups of our society, who need the most protection.

V.

FEDERAL LITIGATION SHOULD AVOID INTERFERENCE WITH STATE CRIMINAL PROCEEDINGS

The effect of the present holding is that those abused by the police who are still harassing them through the pressing of state criminal charges must commence a civil suit in federal court even though the pending state criminal case is unresolved. This will necessarily increase difficulties in criminal prosecution in the state courts and in civil 1983 litigations in federal courts. It is not an appropriate solution to require that the suits be brought early and then be kept in abeyance in federal court. If the federal court can do nothing until the state related criminal case is concluded it would *205 be best to commence the civil suit at a time the criminal case can be properly evaluated. An unfortunate result of today’s decision is that defendants and prosecutors will be forced to litigate the criminal cases more fiercely rather than to utilize the softer and often more desirable techniques of the state pretrial diversion channels.

In addition to furthering the purposes and policies of section 1983, fixing accrual at the conclusion of plaintiff’s state court criminal proceeding promotes the principles of comity fundamental to state-federal relations. Plaintiff’s civil rights claim involves the same issues, evidence and witnesses as did his state court criminal trial. Unnecessary confusion of, interference with and delay of such proceeding might well have occurred had plaintiff been required to institute and litigate his federal civil rights claim during the prosecution of the criminal charges.

Until the state prosecutions have been concluded, it is simply impossible to make a reasoned evaluation of plaintiff’s claim... . Moreover, even if such determination were possible, it would offend the principle of comity for a federal district court to inquire into ... a pending state criminal proceeding. See Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971).... In implementing the policy of non-interference, federal courts must focus upon the practical impact of any potential ruling ... In addition, such parallel proceeding represents a drain on already over-extended judicial resources... .

Martin v. Merola, 532 F.2d 191, 194-5 (2d Cir. 1976). A “healthy federalism demands .. . that the federal courts avoid as much as is possible intruding upon the domain which is particularly the responsibility of the state courts ...” Williams v. Walsh, 558 F.2d 667 (2d Cir. 1977).

Accrual of the civil rights claim at the conclusion of the criminal proceeding achieves a more efficient allocation of judicial resources since the identical issues determined in the state court proceeding need not be relitigated in the federal court. 28 U.S.C. § 1738 (“[Jjudicial proceedings ... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken.”). See also, e. g., S. T. Grand, Inc. v. City of New York, 32 N.Y.2d 300 , 344 N.Y. S.2d 938, 298 N.E.2d 105 (1973) (criminal conviction is conclusive proof of same issues subsequently raised in civil proceeding); Federal Rules of Evidence, Rule 803(22) (judgment of previous conviction evidence in civil suit).

VI.

CONCLUSION

The district court erred in relying too heavily upon details of state law in determining the accrual date and sufficiency of appellant’s federal civil rights claim. Questions arising under section 1983 should be answered with a view towards advancing the national purpose of compensation and deterrence, furthering the principles of comity and effecting an efficient allocation of judicial resources.

The strong public policy in favor of providing a remedy for those whose federal constitutional and statutory rights have been deprived by individuals acting lawlessly under color of state law is a powerful one. If the federal courts serve any great purpose, it is in protecting these rights. The Supreme Court has reminded us that civil rights legislation is to be broadly construed. By narrowly interpreting state statutes of limitation and by giving niggardly scope to section 1983 federal courts may save themselves the necessity of addressing the merits of plaintiff’s claim of constitutional deprivation. But this short-circuiting of federal remedies is wrong as a matter of policy, as a matter of statutory construction and as a matter of practical relationships between federal and state courts.

The judgment of dismissal should be reversed.