# Daiva Richardson and Ronnie Richardson v. City of South Euclid Arnold C. D'Amico Jack Clifford James Farrell and John Doe

> Court of Appeals for the Sixth Circuit · July 26, 1990 · 904 F.2d 1050

URL: https://www.frixlaw.com/law-library/cases/9480393

## Case

- **Full name:** Daiva RICHARDSON and Ronnie Richardson, Plaintiffs-Appellants, v. CITY OF SOUTH EUCLID; Arnold C. D’Amico; Jack Clifford; James Farrell; And John Doe, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 26, 1990
- **Citations:** 904 F.2d 1050
- **Precedential status:** Published
- **Opinion:** Dissent by Merritt
- **Judges:** Merritt, Ryan, Peck
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480393

## How later opinions describe it (automated extraction)

- rejecting plaintiffs’ procedural due process claim since they “were not convicted without notice and trial,” but rather “were charged in writing” and “permitted an opportunity to respond in open court”
- noting the Richardson plaintiffs "were not deprived of any 'liberty' interest as that term has been defined in fourteenth amendment jurisprudence"

## Opinion text

MERRITT, Chief Judge,
dissenting.
Today the majority holds that individuals cannot sue a city for damages under 42 U.S.C. § 1983 (1982) if that city has subjected them to an admittedly unconstitutional ordinance. The majority spends its time searching for a deprivation of a “property” or “liberty” interest that would give rise to an action under § 1983, as though this were a procedural due process case. That search is irrelevant to the inquiry before us. Analogous to the adoption of an ex post facto law or a bill of attainder in violation of § 9 of Article I of the Constitution, the adoption of an unconstitutionally *1056 vague statute is itself a constitutional violation cognizable under § 1983. It is a violation of the substance of due process of law.
If the ordinance in question is void for vagueness, then the Richardsons have been denied due process of law, assuming they can establish damages. “[A] statute which either forbids or requires the doing of an act in terms so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Constr. Co., 269 U.S. 385, 391 , 46 S.Ct. 126, 127 , 70 L.Ed. 322 (1926). A violation of “the first essential of due process of law” is certainly enough to establish a violation of § 1983. We need not proceed to search unsuccessfully in the closet of constitutional rights for another one. The majority has read an important constitutional right out of existence by insisting that the elements of another constitutional right be established as well.
A vague statute violates due process of law in two ways. First, it violates the principle that all should receive fair warning of what is permitted and what proscribed. “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453 , 59 S.Ct. 618, 619 , 83 L.Ed. 888 (1939) (statute outlawing membership in “gang” unconstitutionally vague). Second, a vague law allows law enforcement officials to pick and choose whom they will arrest and who will go free. “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 , 92 S.Ct. 2294, 2299 , 33 L.Ed.2d 222 (1972). If a city subjects an individual to the application of such a statute, that person has suffered a two-fold deprivation of liberty. The majority has in effect abolished that constitutional right by refusing to enforce it.
The majority argues that “[t]he prosecution itself is the observance of process due the accused,” At 1053, as though the City’s attempt to put the Richardsons in jail can cleanse the unconstitutional ordinance. Such an analysis would be accurate if the City had arrested merely by mistake the wrong couple named Richardson. In that hypothetical situation, the couple could appear, prove mistaken identity, and go free. That would be analogous to Baker v. McCollan, 443 U.S. 137 , 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979). In the case before us, however, the prosecution is not the “process due the accused”; rather, it constitutes a further violation of the Richard-sons’ rights. Whatever we may say about criminal prosecution generally, prosecution under a vague ordinance is an impermissible delegation of unchecked authority to the police and judges “with the attendant dangers of arbitrary and discriminatory application.” Grayned, 408 U.S. at 109, 92 S.Ct. at 2299 . Surely “arbitrary and discriminatory application” of law is not the “process due the accused.”
The majority next turns to the malicious prosecution argument and redoubles its confusion. 1 It asserts that “[s]tate prosecution for refusal to waive one’s fourth amendment rights is not the same as prosecution under an untested, presumptively valid, city ordinance.” At 1053 (emphasis added). Subjecting a person to a vague ordinance is “a deprivation of a constitutional dimension....” Dunn v. Tennessee, 697 F.2d 121, 125 (6th Cir.1982), cert. denied, 460 U.S. 1086 , 103 S.Ct. 1778 , 76 L.Ed.2d 349 (1983). The reason that the Ohio courts invalidated the ordinance is because it violated the due process clause of the Constitution. To prosecute someone under that ordinance must deprive the accused of a constitutional right. The majority’s confusing talk about a “presumptively valid” ordinance hints that perhaps a city *1057 should be immune from § 1983 suits where it prosecutes under an untested ordinance. But immunity is another question, a possible defense. The majority does not even attempt to reach any such immunity issues or discuss the rule established by Monell v. New York City Department of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), that under § 1983 the City’s conduct must be in furtherance of an unconstitutional “policy or custom” in order for it to be liable. Id. at 694, 98 S.Ct. at 2037 .
The majority then refers to cases that test the boundaries of what is a constitutional right. For example, Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976), holds that the Constitution does not secure to people a right to their good reputations. But the Constitution does protect people against vague statutes. This in and of itself constitutes a deprivation of a right. The Richardsons need show no other interest of which they have been deprived to have a cause of action under § 1983. Cf. Kolender v. Lawson, 461 U.S. 352 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983) (after holding vagrancy statute vague, Court remands for further proceedings on damages issue).
Finally, the majority cites Carey v. Piphus, 435 U.S. 247 , 98 S.Ct. 1042 , 55 L.Ed.2d 252 (1978), for the proposition that a court will not presume damages from the deprivation of a right. In other words, a plaintiff in a § 1983 action must show his or her damages in order to recover; the Court would not presume that a denial of due process caused mental or emotional damages per se. That problem does not seem relevant here. The Richardsons’ request for damages in their complaint specifies damages that they could easily prove: loss of wages and legal expenses, along with emotional distress. Complaint 119, J.A. at 6. If the majority worries that plaintiffs cannot prove their injuries, then it should remand to the District Court for a hearing on the damages issue.
In addition, the majority ignores two important holdings of Carey v. Piphus. First, while Carey held that damages will not be presumed, it clearly held that if a person can prove actual damages caused by a deprivation of due process, he or she should recover. Second, and more important, the Court held that a due process violation “should be actionable for nominal damages without proof of actual injury.” 435 U.S. at 266 , 98 S.Ct. at 1054. In Carey , the plaintiffs could recover $1 for the violation of their due process right.
In the case before us, the Ohio Supreme Court’s holding establishes the denial of due process that the Richardsons suffered. Contrary to the suggestion of the majority, the Richardsons are not asking this Court to give them an “automatic” claim under § 1983. They can show a violation of a right, and they can show their damages. Even if they cannot, they might be entitled to nominal damages under Carey v. Pi-phus. The majority worries that this puts law enforcement officials in the precarious situation of having to evaluate each new law before enforcing it. That is not a problem if such officials would be immune from suit, as I think they should be. The only party amenable to the suit should be the City. Compare Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982) (good-faith immunity for government officials) and Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976) (absolute immunity for prosecutors) with Monell v. New York City Dep’t of Social Servs., 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978) (city not immune from suit under Eleventh Amendment).
In conclusion, it appears to me that the majority not only stamps out an important existing constitutional right; its holding also undermines the Ohio Supreme Court’s decision that this ordinance violated the United States Constitution because it was too vague. The majority gives short shrift to the principles of comity announced in Allen v. McCurry, 449 U.S. 90 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980) (criminal proceeding creates collateral estoppel in subsequent § 1983 action). It grabs for itself a function reserved exclusively to the Supreme Court of the United States. Unless that Court grants certiorari, reverses the Ohio Supreme Court, and holds the ordi *1058 nance constitutional, the finding of the Ohio Supreme Court that this ordinance violates the United States Constitution— and thereby violates the rights of United States citizens — binds us in this § 1983 proceeding.
. Contrary to the suggestion of the majority, the Richardsons never argued in this Court that they had an action for malicious prosecution; they merely suggested it as a situation analogous to their own. See Plaintiffs-Appellants' Brief at 13-14.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480393. Public record. Not legal advice.