Petition — Paul v. Davis

IN THE

SUPREME COURT OF THE UMTE

October Term, 1974

No. 74- 89 1 :

EDGAR PAUL, Chief of Police, Louisville

Division of Police, and

RUSSELL McDANIEL, Chief of Police,

Jefferson County Division of Police - Petitioners

versas

EDWARD CHARLES DAVIS, III - - Respondent

PETITION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

J. BRUCE MILLER

1112 Kentucky Home Life Building

Louisville, Kentucky 40202

Attorney for Petitioner, McDaniel

EUGENE L. MOSLEY

1600 Kentucky Home Life Building

Louisville, Kentucky 40202

Attorney for Petitioner, McDaniel

FRANK A. LOGAN

504 Kentucky Home Life Building

Louisville, Kentucky 40202

Attorney for Petitioner, Paul

IRVIN D. FOLEY

709 Marion E. Taylor Building

Louisville, Kentucky 40202

Attorney for Petitwner, Paul

CARSON P. PORTER

Law Department, City of Louisville

200 City Hall

Louisville, Kentucky 40202

Attorney for Petitioner, Paul

WESTERFIELD-BONTE CO., INC., 619 W. KENTUCKY, LOUISVILLE, KY.

JAN 20 1975

TABLE OF CONTENTS

The Opinion Below. .. ........--.0-eesseeeeeeeees

Ss I TELL

Question Presented. .. .....-.-. 6. cece eee eee eeeees

Constitutional Provisions Involved... .............

Statutes Involved. .. ........--.c cece eeeeesccrcees

Statement of the Case... ..... 6. - 6s eee eee ee ences

Reason for Granting the Writ... ..........5---0+55

I. This Court Should Grant Certiorari to Consider

Whether the Court of Appeals Below Erred in

Reversing the Judgment of the District Court

Below and in Holding That the Distribution by

the Petitioners of a flyer for the Exclusive Use

and Protection of Local Merchants and Business

Establishments Entitled “Active Shoplifters”

and Containing the Identiy of the Respondent,

Who Had Been Charged With, But Not Con-

victed of, the Crime of Shoplifting, Was of Such

Grave Magnitude as to Constitute an Invasion

of the Civil Rights Secured to the Respondent

Under the Constitution and to Require the Invo-

cation of Federal Jurisdiction in Accordance

With 42 U.S.C. Section 1983... . 2... 6.5602 eees

A. Opinion of the District Court BRM. oc cesses

B. Opinion of the Sixth Cireuit Court of Appeals

ee... ccccceecboedsaewsueosseeeegeses

Certificate of Service... ......--e cece reeeeeeeeeres

4-5

5- 7

8-15

8-15

21-29

TABLE OF AUTHORITIES

——

c PAGE

Baker v. Howard, 419 F. 2d 376 (9th Cir. 1969)... .13, 14

Griswold v. Connecticut, 381 U. S. 479, 14 L. Ed. 2d

510, 89 S. Ct. 1678 (1965). ... 2... eee eee eee wees 10, 11

Jervey v. Martin, 336 F. Supp. 1350 (W.D. Va.

Bs ic oGd cee nnengesedancsusiencuresners 12

Johnson v. Hackett, 284 F. Supp. 933 (E.D. Pa.

REL, é 0 Sadacdesnesheceenessaenusebetmenass 13

Katz v. U. S., 389 U. S. 347, 19 L. Ed. 2d 576, 88

GR Be CEs oo cceccccusccevesenesssases 13

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81

Oe, Ge. Bs GO, 6 6 cbccowesessesedeeusioss 11

Rochin v. California, 342 U. S. 165, 96 L. Ed. 183,

Oe Gh, GR, Bee Cie 0. w oc ccccacsccscensnesees 11

Roe v. Wade, 410 U. S. 113, 35 L. Ed. 2d 147, 93

tS 5 rT ee te 11-12

Travers v. Paton, 261 F. Supp. 110 (D.C. Conn.

a kc akiddsent dake ccéecantens ceshues cee 10, 11

Wisconsin v. Constantineau, 400 U. S. 433, 27 L. Ed.

9a 515, 91 S. Ct. SOT (1971)... 0... cere ec ceees 8- 9

United States Constitution:

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I, I, ogg onc cccccvctccbevencoesees 3, 10

) -..... Ser errs 3, 10

i rs ab bnenscsvaseeesevean os 3, 10

Fourteenth Amendment... .........0+--eeeeeees 4,8, 11

Statutes:

42 U.S. C. Section 1983... .......... 4, 5, 8, 11, 12, 13-14

58 Wy. &. C. Boatiom BOER «0 ccc cecccccevccsccsss 4-5, 14

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SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

Epear Pau, Chief of Police, Louisville

Division of Police, and

Russet: McDanrex, Chief of Police, Jef-

ferson County Division of Police - Petitioners

v.

Epwarp Cuartes Davis, III - - Respondent

PETITION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner prays that a Writ of Certiorari issue to

review the judgment herein of the United States Court

of Appeals for the Sixth Circuit entered in the above-

entitled case on October 22, 1974.

OPINION BELOW

The opinion of the Court of Appeals reversed the

judgment of the United States District Court for the

Western District of Kentucky, and held that the dis-

tribution by the Petitioners to a group of local mer-

chants of a flyer captioned ‘‘ Active Shoplifters’’ and

2

containing the name of the Respondent, who had been

arrested but not convicted of the crime of shoplifting,

was a violation of the Due Process Clause of the Four-

teenth Amendment.

JURISDICTION

The judgment of the United States Court of Ap-

peals was entered on October 22, 1974. Jurisdiction of

this Court is invoked under 28 U.S.C. Section 1254(1).

QUESTION PRESENTED

Did the Court of Appeals below err in reversing the

judgment of the District Court below and in holding

that the distribution by the Petitioners of a flyer for

the use and protection of local merchants and business

establishments entitled ‘‘ Active Shoplifters’’ and con-

taining the identity of the Respondent, who had been

charged with, but not convicted of, the crime of shop-

lifting, was of such grave magnitude as to constitute

an invasion of the civil rights secured to the Respond-

ent under the Constitution and to require the invoca-

tion of Federal jurisdiction in accordance with 42

U.S.C. Section 1983?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment I

‘‘Congress shall make no law respecting an estab-

lishment of religion; or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

3

press; or of the right of the people peaceably to as-

semble, and tu petition the government for a redress of

grievances.”’

Amendment IV

“The right of the people to be secure in their per-

sons, houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no war-

rants shall issue, but upon probable cause, supported

by oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.”’

Amendment V

‘No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when in ae-

tual service in time of war or public danger; nor shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use, without just compensation.”

Amendment IX

“he enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people.”’

Amendment XIV, Section 1

‘| nor shall any state deprive any person of

life, liberty, or property, without due process of

law; . —

STATUTES INVOLVED

42 U.S.C. Section 1983

‘‘Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizens of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges or immunities secured by the Consti-

tution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper pro-

ceeding for redress.”

28 U.S.C. Section 1343

‘‘The district courts shall have original jurisdiction

of any civil action authorized by law to be commenced

by any person:

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity secured by

the Constitution of the United States or by any Act

of Congress providing for equal rights of citizens or

of all persons within the jurisdiction of the United

States ;

5

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for

the protection of civil rights, including the right to

vote.””

28 U.S.C. Section 220).

“In a case of actual controversy within its juris-

diction, except with respect to Federal taxes, any court

of the United States, upon the filing of an appropriate

pleading, may declare the rights and other relation of

any interested party seeking such declaration, whether

or not further relief is or could be sought. Any such

declaration shall have the force and effect of a final

judgment or decree and shall be reviewable as such.’’

28 U.S.C. Section 2202

‘‘Purther necessary or proper relief based on a

declaratory judgment or decree may be granted, after

reasonable notice and hearing, against any adverse

party whose rights have been determined by such judg-

ment.”’

STATEMENT OF THE CASE

The Respondent, Edward Charles Davis III, filed

suit on December 13, 1972, in the United States Dis-

trict Court for the Western District of Kentucky under

28 U.S.C. Sections 1343(3) (4), 2201, and 2202, and 42

U.S.C. Section 1983, alleging a deprivation of his civil

rights in general and violation of his right of privacy

specifically. The iRespondent’s suit was brought

6

against the Petitioners, Edgar Paul, who was Chief

of Police of the Louisville Division of Police at the

time the Respondent’s claim arose, and Russell Mc-

Daniel, who was the Chief of Police of the Jefferson

County Police Department both at the time the Re-

spondent’s claim arose and presently.

The Respondent was arrested on June 14, 1971, by

private security officers and charged with a violation

of Kentucky Revised Statutes 433.234, Shoplifting.

On September 21, 1971, the case against the Respond-

ent was ‘‘filed away with leave’. On December 11,

1972, nearly nineteen (19) months after the case was

filed away, the Respondent’s case in Police Court was

dismissed.

On or about December 5, 1972, the Petitioners au-

thorized the preparation and dissemination to certaiu

local merchants and business establishments in Jeffer-

son County, Kentucky, a flyer containing names and

photographs of persons suspected of being active shop-

lifters in the area. The purpose of the flyer was not

to inform the public at large, but rather to alert local

businessmen so that they in turn could alert their se-

curity personnel to watch for these subjects. The flyer

further stated that the persons contained therein had

been arrested during 1971 and 1972 and charged with

the crime of shoplifting.

On December 12, 1972, the instant action was in-

itiated in the United States District Court for the

Western District of Kentucky as a class action, alleg-

ing as unconstitutional the distribution of the afore-

mentioned flyers. Furthermore, the Respondent de-

lL"

7

manded compensatory and punitive damages against

the Petitioners. The Respondent based his claim for

damages upon the theory that the Petitionrs had de-

prived him of his constitutional right to privacy. On

January 8, 1973, the District Court held a hearing on

the Respondent’s motion for a preliminary injunc-

tion. The District Court thereafter denied the Re-

spondent’s motion. On N ovember 16, 1973, the District

Court entered its judgment dismissing the Respond-

ent’s suit. (See Appendix A).

Subsequently, the Respondent appealed to the

United States Court of Appeals for the Sixth Circuit.

On October 22, 1974, the Court of Appeals reversed

the District Court’s judgment and remanded the case

for further proceedings (See Appendix B). In so

doing, the Court of Appeals held that the Respondent's

claim did, in fact, allege a violation of rights guaran-

teed by the Constitution. It is from the judgment of

the Court of Appeals below that the Petitioners make

application for a Writ of Certiorari.

REASON FOR GRANTING THE WRIT

I

This Court Should Grant Certiorari to Consider Whether

the Court of Appeals Below Erred in Reversing the

Judgment of the District Court Below and in Holding

That the Distribution by the Petitioners of a Flyer for

the Use and Protection of Local Merchants and Busi-

ness Establishments Entitled “Active Shoplifters” and

Containing the Identity of the Respondent, Who Had

Been Charged With, But Not Convicted of, the Crime

of Shoplifting, Was of Such Grave Magnitude as to

Constitute an Invasion of the Civil Rights Secured to

the Respondent Under the Constitution and to Require

the Invocation of Federal Jurisdiction in Accordance

With 42 U.S.C. Section 1983.

The Court of Appeals below held that the actions

tuken by the Petitioners violated the Respondent’s

constitutional right of privacy and deprived him of

his right to due process guaranteed by the Fourteenth

Amendment. The Petitioners respectfully disagree

with that ruling. It shall be the Petitioners’ conten-

tion that the claim advanced by the Respondent con-

stitutes nothing more than a potential tort case for

defamation of character or invasion of privacy for

which the proper remedy is a civil suit in the state

court.

In rendering its decision, the Court of Appeals be-

low relied heavily on this Court’s ruling in Wisconsin

v. Constantineau, 400 U. S. 433, 27 L. Ed. 2d 515, 91

S. Ct. 507 (1971). In that case, this Court, by a six

to three majority, held a Wisconsin statute to be un-

9

constitutional which provided that a police chief,

among others, could forbid in writing the sale or gift

of alcoholic beverages to one who, by excessive drink-

ing, exhibited certain traits. Furthermore, pursuant

to that statute, a police chief, without granting any

advance notice or opportunity to be heard, caused to

be posted in all local retail liquor outlets a notice for-

bidding sales or gifts of liquor to the appellee.

In short, the Constantineau case involved the un-

constitutionality of a state statute which deprived a

person of any remnant of a due process hearing prior

to the taking of official action in accordance with the

procedures set forth in the statute. This is quite dif-

ferent from the actions undertaken in the case at bar.

Herein, the Petitioners were not directed by any stat-

ute, regulation, or ordinance to take any action what-

soever relative to the preparation and dissemination

of the flyer in question. They did so independently

of any directions or authority. In so doing, they acted

alone.

As a result of their independent actions, they may

have invaded the Respondent’s privacy. They may

have defamed him. Their actions may have been tort-

jous in nature. If so (and we certainly do not admit

that said acts do constitute any tort), then the Re-

spondent’s proper remedy is a civil action for injune-

tive relief and/or damages in the appropriate state

court. The Petitioners respectfuly submit that a per-

son is not entitled to a full due process hearing before

something of a potentially defamatory nature is said

vr written about him.

10

Contrary to the holding of the Court of Appeals

below, the Petitioners respectfully urge that their ac-

tions did not constitute a violation of the Respondent’s

constitutionally protected right to privacy. It should

be pointed out that our Constitution makes no mention

of any specifie right of privacy. In fact, it has long

been established that one’s right of privacy sounds in

tort and gives rise to a common law cause of action

in its own name. Warren and Brandeis, ‘‘Right to

Privacy’’, 4 Harv. L. Rev. 193 (1890).

However, in Griswold v. Connecticut, 381 U.S. 479,

14 L. Ed. 2d 510, 89 8. Ct. 1678 (1965), this Court ae-

knowledged that a right of privacy could attain con-

stitutional stature in certain limited instances. In

Griswold, this Court was confronted with a challenge

to a state law prohibiting the use of contraceptives by

married couples. In holding that statute to be uncon-

stitutional, the Court determined that the ‘‘sacred’”’

nature of the marital relationship was imbued with ‘‘a

right of privacy older than the Bill of Rights’’. 381

U.S. 479 at 486. Furthermore, the Court concluded

that the rights protected in general by the first ten

amendments to the Constitution and more specifically

by the First, Fourth, Fifth and Ninth Amendments

have certain penumbras which create zones of privacy.

The Respondent would have us believe that the ac-

tions taken by the Petitioners in the case at bar fall

within the zones of privacy recognized in Griswold.

A similar contention was raised and defeated in

Travers \. Paton, 261 IF. Supp. 110 (D.C, Conn, 1966),

11

In that case, the plaintiff was a convict who contended

that the defendants violated his constitutional right of

privacy by televising his parole hearing without his

prior knowledge or approval. In holding that the de-

fendants’ actions did not constitute a violation of the

plaintiff’s constitutional right of privacy or any other

civil rights afforded under 42 U.S.C. Section 1983 the

District Court pointed out that the plaintiff’s claim

more properly sounded in tort law. Furthermore, they

ruled that ‘‘all torts are not violations of rights se-

cured by the Constitution and laws’’ and that 42 U.S.C.

Section 1983 ‘‘encompasses a much narrower field’’

than the type of action raised by the plaintiff. 261

F. Supp. 110, at 112. In addressing itself to the Gris-

wold decision, the District Court in Travers stated:

‘*It misses the heart and spirit of the Griswold

case to casually infer an intent to adopt into the

Constitution the entire body of the tort law right

to privacy.’’ 261 F. Supp. 110, at 113.

To date, only the basic core elements of privacy

have been held as clearly protected by the Constitution.

(See Mapp v. Ohio, 367 U. S. 648, 81 S. Ct. 1684, 6

L. Ed. 2d 1081 (1961), wherein the Fourth Amendment

right to be free from unauthorized searches by police

was held applicable to the state by the Due Process

Clause of the Fourteenth Amendment; Rochin v. Cali-

forma, 342 U. 8S. 165, 72 8S. Ct. 205, 96 L. Ed. 183

(1952), holding that one’s person is protected against

bodily intrusion by means of a stomach pump in that

such intrusion ‘‘shocks the conscience’’; Roe v. Wade,

12

410 U. S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)

holding that the federally protected right of privacy

encompassed a woman’s decision as to whether she de-

sired to terminate her pregnancy.) To hold that the

claim made by the Respondent in the case at bar

amounts to a violation of his right to privacy as pro-

tected by the Constitution would open the proverbial

floodgates of litigation to virtually all types of tort

actions sounding in defamation of character or inva-

sion of privacy.

Federal jurisdiction under 42 U.S.C. Section 1983

attaches as follows:

‘‘Every person who, under color of any statute,

ordinance, regulation, custom, or usage of any

State or Territory, subjects, or causes to be sub-

jected, any citizen of the United States or other

person within the jurisdiction thereof to the dep-

rivation of any rights, privileges or immunities

secured by the Constitution and laws, shall be lia-

ble to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.’’

Actions for defamation do not come within the pur-

view of 42 U.S.C. Section 1983. Jervey v. Martin, 336

F. Supp. 1350 (W.D. Va. 1972). Where only an in-

vasion of a general personal right to privacy is war-

ranted under the facts, the Respondent cannot rely

upon the Constitution as the source of that right in an

attempt to plead his way into the jurisdiction of the

federal courts.

‘‘There are many individual -ights which are not

guaranteed by the Constitution of the United

13

States. Protection of those rights is the duty of

the State . . . these include the right to be secure

from intentional and unintentional harm to a per-

son’s reputation and property. The fact that such

rights are violated by policemen does not spell out

Federal Constitutional violations.’”’ Johnson Vv.

Hackett, 284 F. Supp. 933, at 939 and 940 (E.D.

Pa. 1968).

‘* . )6. the protection of a person’s general right

to privacy—his right to be left alone by other peo-

ple—is like the protection of his property and his

very life, left largely to the law of the individual

states.’’ Katz v. United States, 389 U. S. 347, 19

L. Ed. 2d 576, 88 8. Ct. 507 (1967).

In a case somewhat similar to the one at bar, the

Ninth Circuit held that the plaintiff failed to allege

faets which, if proven, would establish that he had been

deprived of any right secured by the Constitution.

Baker v. Howard, 419 F. 2d 376 (9th Cir. 1969). In

that case, the actions of the defendant police officers

went further than the actions of the Petitioners herein.

After investigating a ‘‘suspicious incident’’ involving

the appellant in that case, which apparently did not

result in any arrest, the police officers released state-

ments to a local radio station indicating that the ap-

pellant therein had committed a crime. The radio sta-

tion, also a party defendant, then broadcast the reports

to the community at large. The combined police and

radio station conduct directly resulted in the loss of

the appellant’s teaching position. The Ninth Circuit

upheld the District Court’s dismissal of the case due

to a failure to state a claim under either 42 U.S.C. Sec-

14

tion 1983 or 28 U.S.C. Section 1343. In so doing, the

Cireuit Court held:

‘*Under some circumstances, there can be such a

gross abuse of privacy as to amount to an abridge-

ment of fundamental constitutional guaran-

tees . . . but the invasion of privacy here com-

plained of is not, in our opinion, so flagrant that

it calls for the invocation et the Constitution.”’

419 F. 2d 376, at 377.

The acts of the police officers in Baker, if true as

alleged, were far more potentially determinental to

that plaintiff than the Respondent in the case at bar.

In the instant case, the allegedly damaging informa-

tion was disseminated in a limited number of pamph-

lets listing the Respondent as one of a number of ‘‘ Ac-

tive Shoplifters’’. In Baker, the dissemination of the

defamatory information occurred over a vast commu-

nication media aimed at the entire community at large.

Further, in Baker, the plaintiff was deprived of his

job. No such loss is alleged by the Respondent in the

instant case. If the actions in Baker did not give rise

to the invocation of rights protected by the Constitu-

tion and/or the jurisdiction of the Federal Courts

granted under 42 U.S.C. Section 1983 and 28 U.S.C.

Section 1343, then it seems unreasonable to extend said

rights and protections to the claims asserted by the

Respondent herein. As pointed out by the decision of

the District Court below in the instant case:

‘‘Even if the police departments fail to use the

proper caution in screening their records, the acts

complained of, as in Baker, supra, are not, under

15

the particular circumstances, sufficient to invoke

the Constitution. The facts alleged in this case do

not establish that plaintiff has been deprived of

any right secured to him by the Constitution of

the United States.’’

CONCLUSION

It is respectfully submitted that this Court should

grant certiorari to review the erroneous judgment of

the Court of Appeals below.

Respectfully submitted,

J. Bruce MIm.er

1112 Kentucky Home Life Bldg.

Louisville, Kentucky 40202

Counsel for Petitioner, McDaniel

EuGENE L. MOostey

1600 Kentucky Home Life Bldg.

Louisville, Kentucky 40202

Counsel for Petitioner, McDaniel

FRANK A. LOGAN

504 Kentucky Home Life Bldg.

Louisville, Kentucky 40202

Counsel for Petitioner, Paul

Irvin Lb. Foiey

709 Marion E. Taylor Building

Louisville, Kentucky 40202

Counsel for Petitioner, Paul

CARSON P. PORTER

Law Department, City of Louisville

200 City Hall

Louisville, Kentucky 40202

Counsel for Petitioner, Paul

17

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

No. 7502-B

Epwarp Cuaries Davis, III - - - Plawtiff

v.

Epear Paut, Chief of Police, Louisville Division of

Police, and

Russetz McDanier, Chief of Ua Jefferson

County Police - - - - Defendants

MEMORANDUM AND ORDER

This is an action brought under 28 U.S.C. §1343(3) and

(4) and 42 U.S.C. §1983 to redress the alleged violation of

plaintiff's right of privacy as protected by the First, Fourth,

Fifth, Ninth and Fourteenth Amendments to the Consti-

tution of the United States. The defendants, pursuant to

Rule 12(b), Federal Rules of Civil Procedure, have moved

to dismiss the plaintiff’s complaint on the grounds that this

Court lacks jurisdiction over the subject matter and that

the plaintiff has failed to state a claim upon which relief

can be granted.

Plaintiff contends that his constitutionally protected

right of privacy has been violated by the acts of the Louis-

ville and Jefferson County Police Departments. The acts

complained of are the dissemination by the named police

departments of flyers containing the names and pictures of

18

persons the departments arrested for shoplifting during

1971 and 1972. Although plaintiff was arrested in 1971

as a suspected shoplifter, he contends that since he was

never convicted of the charge, his right of privacy was

violated by the dissemination of the flyers, containing his

name and picture and entitled “active shoplifters”, to local

businessmen and merchants.

Plaintiff argues that the defendants acted under color

of state law and in so doing have violated his rights, priv-

ileges and immunities protected under the Constitution.

42 U.S.C. §1983 states:

“Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage of any State or

Territory, subjects, or causes to be subjected, any cit-

izen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.”

The question which this Court must consider is whether

the defendants have violated any constitutionally protected

rights, privileges, or immunities of this plaintiff which

would give the Court jurisdiction over this matter.

The leading case on this question of the constitutional

right of privacy is Griswold vy, State of Connecticut, 381

U. S. 479, 89 S. Ct. 1678 (1965) which involved the chal-

lenge of a state law prohibiting the use of contraceptives.

The Court held the statute unconstitutional; however, it

proffered several different reasons for the decision. The

majority opinion recognized that the Constitution does not

explicitly mention a right of privacy, but theorized that the

rights protected by the first ten amendments have “penum-

bras” which create “zones of privacy” in which the marital

19

relationship is included. A concurring opinion in that case

classified marital privacy as a “fundamental right” pro-

tected by the Ninth Amendment. The Court alluded that

it felt the marital sexual relationship is a special situation

and is private by nature. See United States v. Laub Baking

Co., 283 F. Supp. 217 (1968).

In Travers v. Paton, 261 F. Supp. 110 (1966), the Court

dealt with the question of whether the televising of a parole

hearing was a violation of the plaintiff’s civil rights under

42 U.S.C. $1983 and held that it was not. The Court there

pointed out that “all torts are not violations of rights

‘secured by the Constitution and laws’. The statute en-

compasses a much narrower field”. In order for the statute

(42 U.S.C. §1983) to apply, there must be an act in viola-

tion of the Constitution or a federal law. See Bomar v.

Keyes, 162 F. 2d 136 (2nd Cir., 1947). The Court went

further and commented on Griswold, supra, stating:

“It misses the heart and spirit of the Griswold case to

casually infer an intent to adopt into the Constitution

the entire body of the tort law right of privacy.”

In Baker v. Howard, 419 F. 2d 376 (9th Cir., 1969), a

case similar to the one at bar, the Court held that there

was no violation of any Constitutionally secured right of

privacy. The defendant police officers, after investigating

# “suspicious incident” involving plaintiff and concluding

that no crime had been committed, deliberately released

to a broadcasting company a police report containing “li-

belous and false statements” suggesting that plaintiff had

committed a crime. The Court held that the complained

invasion of plaintiff's privacy was not so flagrant as to

invoke the Constitution.

The Court, in Mapp v. Ohio, 367 U. S. 643, 81 S. Ct.

1684 (1961), held that the Fourth Amendment to the Con-

stitution secured only the basic core aspects of privacy and

20

through the Fourteenth Amendment have been held ap-

plicable to the states by the due process clause. The Court

held, however, that this core of privacy was fundamental

in nature, such as the right to be secure in one’s home

against violent intrusion by the police.

Thus, it appears that constitutional protection of the

right of privacy does not extend to all possible ramifica-

tions of privacy but must be scrutinized carefully to not

indiscriminately extend federal jurisdiction over state torts

under the protection of 41983.

In the present case, the dissemination of the flyers was

not to the public at large but only to businessmen and

merchants in the community in order for them to distrib-

ute the information to their security personnel to help them

identify possible shoplifters. See Tosh v. Buddies Super-

markets, Inc., et al., 482 F. 2d 329 (5th Cir., 1973). Even

if the police departments failed to use the proper caution

in screening their records, the acts complained of, as in

Baker, supra, are not, under the particular circumstances

sufficient to invoke the Constitution. The facts alleged in

this case do not establish that plaintiff has been deprived

of any right secured to him by the Constitution of the

United States.

Wuenrerorg, It Is Onperep anp Apsupcep that the plain-

tiff’s complaint be and is hereby dismissed, at the cost of

plaintiff.

Judgment shall be entered accordingly.

This 16th day of November, 1973.

(s) Rhodes Bratcher

United States District Judge

Copies to:

Counsel of record.

21

APPENDIX B

No. 74-1225

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Epwarp Caarues Davis, III, . Plaintiff-Appellant,

v.

Epoar Pau, Chief of Police, Louisville Division

of Police, and

Russet, McDaniez, Chief of Police, Jefferson

County Police, - = = Defendants-Appellees.

Appeal From the United States District Court For

the Western District of Kentucky.

Decided and Filed October 22, 1974.

Before: Putups, Chief Judge, and CeLteprezze and

Enouie, Circuit Judges.

Puiturs, Chief Judge. Appellant, Edward Charles

Davis, II1, brought this class action under 42 U.S.C. 61983

alleging that the distribution by the Chiefs of Police of the

Louisville and Jefferson County Police Department of a

flyer captioned “Active Shoplifters” and containing the

names and mugshots of persons who have never been con-

victed of shoplifting violated the Due Process Clause of

pee a

22

the Fourteenth Amendment. Appellant seeks declaratory,

injunctive and monetary relief. The District Court dis-

missed the complaint, holding that it did not allege any

violation of rights guaranteed by the Constitution. We

reverse.

The complaint asserts that on June 14, 1971, Edward

Charles Davis, III, was arrested in Louisville, Kentucky,

on a charge of shoplifting. It is alleged, and attachments

to the complaint show, that he entered a plea of not guilty

and that the charge was “filed away” on September 21,

1971, and dismissed on December 11, 1972. It is further

alleged that appellant is innocent of the charge and that he

was never tried or convicted of the offense.

The complaint alleges that on December 5, 1972, Col.

Edgar Paul, Chief of Police of the Louisville Division of

Police, and Col. Russell McDaniel, Chief of Police of the

Jefferson County Police ‘hereinafter Police Chiefs), caused

to be sent flyers to numerous merchants and business estab-

lishments in the Louisville Metropolitan area, It is al-

leged, and attachments to the complaint show, that the

flyers contained the names and mugshots of persons who

had been arrested for shoplifting during 1971 and 1972 or

who were active in various criminal fields in high density

shopping areas, that each flyer was headed by the caption

“Active Shoplifters” and that the stated purpose of the

flyer was to allow the merchants to inform their security

personnel “to watch for these subjects.” Appellant’s

name and mugshot were included in the flyer. It is al-

leged that the acts of the Police Chiefs were under color of

1At the hearing on the motion for a preliminary injunction,

Col. Paul testified that this practice had been going on about fif-

teen years, that the sole justification for including a person in the

flyer is the fact of an arrest and information supplied by the arrest-

ing officer, that appellant’s only prior arrest was in 1967 for a

speeding violation and that about 800 of the flyers had been dis-

tributed.

23

the state law and deprived the appellants and other sim-

ilatly situated of rights guaranteed by the Due Process

Clause of the Fourteenth Amendment.

The Police Chiefs moved to dismiss for lack of subject

matter jurisdiction. The District Court dismissed the com-

plaint stating: “The facts alleged in this case do not estab-

lish that plaintiff has been deprived of any right secured

by the Constitution of the United States.”

On considering an appeal from an order granting a

motion to dismiss, we must, of course, take the allegations

in the complaint as true. California Motor Transport Co.

v. Trucking Unlimited, 404 U. S. 508, 515-16 (1972).

Before recovery can be allowed under §1983, two ele-

ments must be present.

“First, the plaintiff must prove that the defendant

has deprived him of a right secured by the ‘Constitu-

tion and laws’ of the United States. Second, the plain-

tiff must show that the defendant deprived him of this

constitutional right ‘under color of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory. This second element requires that the

plaintiff show that the defendant acted ‘under color of

law.” (Footnote omitted) Adickes v. S. H. Kress &

Co., 398 U. S. 144, 150 (1970).

The sole issue on appeal, as it was in the District Court,

concerns the first two elements set forth in the preceding

paragraph. Specifically, the Police Chiefs contend that

the complaint only states a cause of action for defamation

and does not establish a constitutional deprivation. Ap-

_

“It is no answer that the State has a law which if enforced

would give relief. The federal remedy is supplementary to the

state remedy, and the latter need not be first sought and refused

ae — one is invoked’’ Monroe v. Pape, 365 U.S. 167,

24

pellant contends that the complaint sets forth facts show-

ing a deprivation of due process as guaranteed by the

Fourteenth Amendment. Specifically, appellant contends

that the Due Process Clause prohibits the Police Chiefs

from disseminating “to large segments of the public, flyers

containing the names and photographs of persons who have

been arrested for, but not convicted of, the offense of shop-

lifting and describing these persons as ‘active shoplifters,’

together with persons who have been convicted of the of-

fense.” At oral argument, counsel for appellant stressed

that the heart of the deprivation was the use of the label

“active shoplifter.”

We are of the view that appellant has set forth a claim

cognizable under $1983 in that he has alleged facts that

constitute a denial of due process of law. This holding is

mandated in view of Wisconsin v. Constantineau, 400 U. S.

433 (1971).

In Constantineau, the question presented to the Supreme

Court involved the constitutionality of a Wisconsin statute

which provided that designated persons could in writing

forbid the sale or gift of intoxicating liquors to excessive

drinkers who exhibited specified traits or produced de-

ceribed conditions. The statute did not provide for notice

and hearing. The Chief of Police, pursuant to the statute

and without notice or hearing, caused to be posted a notice

at all retail liquor outlets in the town that sales or gifts of

liquor to Constantineau were forbidden for one year. The

precise issue presented to the Court was “whether the label

or characterization given a person by ‘posting,’ though a

mark of serious illness to some, is to others such a stigma

or badge of disgrace that procedural due process requires

notice and an opportunity to be heard.” 400 U. S. at 436.

In holding that due process was required, the Court stated:

“Yet certainly where the State attaches ‘a badge of

infamy’ to the citizen, due process comes into play.

25

Wieman v. Updegraff, 344 U. S. 183,191. ‘[T]he right

to be heard before being condemned to suffer grevious

loss of any kind, even though it may not involve the

stigma and hardships of a criminal conviction, is a

principle basic to our society.’ Anti-Fascist Commit-

tee v. McGrath, 341 U. S. 123, 168 (Frankfurter, J.,

concurring).

“Where a person’s good name, reputation, honor, or

integrity is at stake because of what the government is

doing to him, notice and an opportunity to be heard

are essential. ‘Posting’ under the Wisconsin Act may

to some be merely the mark of illness, to others it is a

stigma, an official branding of a person. The label is

a degrading one. Under the Wisconsin Act, a resident

of Hartford is given no process at all. This appellee

was not afforded a chance to defend herself. She may

have been the victim of an official’s caprice. Only when

the whole proceedings leading to the pinning of an

unsavory label on a person are aired can oppressive

results be prevented.” 400 U. S. at 437.

In the teeth of the plain language of the Court’s holding,

the Police Chiefs seek to distinguish Constantineau on the

basis of an artificial distinction between “liberty” and

“property” rights. It is contended that the thrust of the

holding was based on the denial of a property right, i.e., the

ability to purchase liquor. We do not read the opinion of

the Supreme Court to support any such distinction. The

Court has rejected the distinction between interests in “lib-

erty” and “property” in the context of a due process depri-

vation. Board of Regents v. Roth, 408 U. S. 564, 569-75

(1972); Perry v. Sindermann, 408 U. 8. 593, 599 (1972).

In Roth, the Court reaffirmed its holding in Constantt-

neau and emphasized that when interests in liberty are in-

volved, due process is required. Although the Court did not

26

undertake to define liberty in precise terms, it was stated

that its meaning must “[w]ithout doubt, . . . [denote]

not merely freedom from bodily restraint,” and “must be

broad indeed.” 408 U.S. at 572. There is no question that

the acts complained of in the case at bar constitute a denial

of an interest in liberty. As stated by the Court in Roth:

“The State, in declining to rehire the respondent,

did not make any charge against him that might seri-

ously damage his standing and associations in his com-

munity. It did not base the nonrenewal of his contract

on a charge, for example, that he had been guilty of

dishonesty, or immorality. Had it done so, this would

be a different case. For ‘{w]here a person’s good name,

reputation, honor, or integrity is at stake because of

what the government is doing to him, notice and an

opportunity to be heard are essential.’ Wisconsin v.

Constantineau, 400 U. S. 433, 437. Wieman v. Upde-

graff, 344 U. S. 188, 191; Joint Anti-Fascist Refugee

Committee v. McGrath, 341 U. S. 123; United States v.

Lovett, 328 U. S. 303, 316-317; Peters v. Hobby, 349

U.S. 331, 352 (Dove .as, J., concurring). See Cafeteria

Workers v. McElroy, 367 U.S. 886, 898. In such a case,

due process would accord an opportunity to refute the

charge before University officials. In the present case,

however, there is no suggestion whatever that the re-

spondent’s ‘good name, reputation, honor, or integrity’

is at stake.

“Similarly, there is no suggestion that the State, in

declining to re-employ the respondent, imposed on him

a stigma or other disability that foreclosed his freedom

to take advantage of other employment opportunities.”

(Footnote omitted.) 408 U.S. at 573.

In the case at bar, appellant alleges that he and others

have been branded as active shoplifters—common criminals

27

—and grouped together with those who have been convicted

of crimes. This label carries with it the badge of disgrace

of a criminal conviction. Moreover, it is a direct statement

by law enforcement officials that the persons included in the

flyer are presently pursuing an active course of criminal

conduct. All of this was done without the slightest regard

for due process. There was no notice nor opportunity to

be heard prior to the distribution of the flyer, and appellant

and others have never been accorded the opportunity to

refute the charges in a criminal proceeding. It goes with-

out saying that the Police Chiefs cannot determine the guilt

or innocence of an accused in an administrative proceeding.

Such a determination can be made only in a court of law.

The harm is all the more apparent because the branding

has been done by law enforcement officials with the full

power, prestige and authority of their positions. There can

be little doubt that a person’s standing and associations in

the community have been damaged seriously when law en-

forcement officials brand him an active shoplifter, accuse

him of a continuing course of criminal conduct, group him

with criminals and distribute his name and photograph to

the merchants and businessmen of the community. Such

acts are a direct and devastating attack on the good name,

reputation, honor and integrity of the person involved. The

fact of an arrest without more may impair or cloud a per-

son’s reputation. Michelson v. United States, 335 U.S. 469,

482 (1948). Such acts on the part of law enforcement of-

ficials may result in direct enocomic loss and restricted op-

portunities for schooling, employment and professional

licenses. Menard v. Mitchell, 430 F. 2d 486, 490 (D.C. Cir.

1970).

In the present case, appellant was a photographer for

the Louisville-Courier Journal at the time of the flyer’s

dissemination. At the hearing on the motion for a prelim-

inary injunction, his supervisor testified as follows:

28

“Qur photographers must be accepted as a reason-

ably honorable and truthful man wherever they go. I

felt that in view of this flyer’s circulation to merchants

of the community I could not, for example, assign Mr.

Davis to photographing anything in a merchantile es-

tablishment and so that should such an assignment come

up I would have been forced to have someone else cover

that assignment rather than Mr. Davis.”

Ilis supervisor also stated appellant “had best not find him-

celf in a similar situation” again and that he would “view

very seriously” a subsequent arrest.

“The mere fact that a man has been arrested has very

little, if any, probative value in showing that he has engaged

in any misconduct. An arrest shows nothing more than that

someone probably suspected the person apprehended of an

offense.” (Footnote omitted.) Schware v. Board of Bar

Examiners, 353 U.S. 232, 241 (1957). In Schware the Court

found a denial of due process when a state denied an ap-

plicant a license to practice law based on reasons that had

no probative value. Id. at 246-47. Part of the Board’s evi-

dence was based on prior arrests for which the applicant

had never been tried or convicted. Id. at 241-43.

Similarly, law enforcement officials cannot, consistent

with the Due Process Clause, brand a person as an active

shoplifter when he has never been tried for the offense.

There is no rational basis to presume guilt and active crim-

inality from the mere fact of an arrest. While “[p]rocedure

by presumption is always cheaper and easier than individ-

ualized determination,” it cannot stand when it results in

the deprivation of a protected interest without a meaning-

ful opportunity to rebut the presumption. Stanley v. Illi-

nois, 405 U.S. 645, 656-57 (1972).

Few things are as fundamental to our legal system as the

presumption of innocence until overcome by proof of guilt

a ee nme

29

beyond a reasonable doubt at a fair trial. The dissemina-

tion of the flyer in the case at bar is in the face of the

presumption of innocence, disregards the Due Process

Clause and is based on evidence that is not probative of

guilt.

Condemning a man to a suspect class without a trial and

on a wholly impermissible standard, as in the case at bar,

offends the very essence of the Due Process Clause, i.e., pro-

tection of the individual against arbitrary action. Slochower

\. Board of Education, 350 U.S. 551, 559 (1956); Peters v.

Hobby, 349 U.S. 331, 351-52 (1955) (Douglas, J., concur-

ring.) As said by Mr. Justice Black in his concurring opin-

ion in Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123, 144-45 (1951):

“Qur basic law, however, wisely withheld authority

for resort to executive . . . condemnations and black-

lists as a substitute for imposition of legal types of

penalties by courts following trial and conviction in

accordance with procedural safeguards of the Bill of

Rights.” (Footnote omitted.)

Reversed and remanded for proceedings not inconsistent

with this opinion.

30

CERTIFICATE OF SERVICE

I, J. Bruce Miller, one of the attorneys for Russell

McDaniel, Petitioner herein, acting on behalf of all counsel

for both Edgar Paul and Russell McDaniel, and being a

member of the Bar of the Supreme Coyrt of the United

States, do hereby certify that on the day of January,

1975, I served copies of the foregoing Petition for Writ of

Certiorari to the Supreme Court of the United States on

Edward Charles Davis, III, Respondent, by mailing copies

in duly addressed envelopes, with first class postage pre-

paid, to his respective attorneys of record, as follows:

Daniel T. Taylor, LI

P. O. Box 1282

Louisville, Kentucky 40201

Robert Allen Sedler

P. O. Box 862

University Station

Lexington, Kentucky 40506

William H. Allison, Jr.

3208 West Broadway

Louisville, Kentucky 4021L_,., J !

J. Bruce MILLeR

1112 Kentucky Home Life Building

Louisville, Kentucky 40202