Respondents Brief — Paul v. Davis

——e

Sarre wet 2.4

FILED

———$. — $i"

MICHAEL BODAK, JA_CLERK

IN THE

Supreme Court of the United States

Ocroser Term, 1975

No. 74-891

ee

Evcar Pavut, Chief of Police, Louisville Division of Police, and

| Russet McDayiet, Chief of Police, Jefferson County Division of

| Police,

Petitioners,

Ve

Epwarp Cuaries Davis, ILI,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR RESPONDENT

Me vin L. Wor Danret T. Tayzor, LI

Joun H. F. SuHatruck Post Office Box 1282

| American Civil Liberties Louisville, Kentucky 40201

Union Foundation

99 Kast 40th Street Rosert ALLEN SEDLER

New York, New York 10016 Post Office Box 862

, University Station

— Lexington, Kentucky 40506

Hofstra University Wri H. Auuison, Jr.

School of Law 3208 West Broadway

Hempstead, New York 11550 Louisville, Kentucky 40201

Attorneys for Respondent

RECORD PRESS. INC.. 95 MORTON ST., NEW YORK, N. Tf. 10014—4212) 243-5775

> *

————————

— =

TABLE OF CONTENTS

Page

Table of AuthoritieS......ceeeeeses

Question Presented.......eseeeeeeee lL

Statement of the Case......ceeeceee 2

Summary of Argument... ccccsecesces 5

Argument:

I. Petitioners have punished

Davis for his status as an

arrestee and have thereby

violated his presumption of

innocence and his right to

due process Of law....-eeee- 7

II. By branding respondent with

a badge of infamy, without

giving him notice and an

opportunity for a hearing,

petitioners deprived him of

his right to procedural due

process under the Fourteenth

Amendment....eceeesceseeeeeelD

III. Petitioners' wide distribu-

tion of the record of respon-

dent's arrest not resulting

in conviction falsely char-

acterized him as a criminal,

thereby invading his right

to privacy......sceececceeeeld

ConclusiOM..ccccercecs pseneescseeede 27

TABLE OF AUTHORITIES

Cases

Adickes v. S. H. Kress,

398 U.S. 144 (1970)

Baker v. Howard,

419 F.2d 376 (9th Cir. 1969)

Board of Regents v. Roth,

408 U.S. 564 (1972)

Boorda v. Subversive Activities

Control Board, 421 F.2d 1142

(D.C. Cir. 1969)

Boyd v. United States,

116 U.S. 616 (1886)

Davidson v. Dill,

503 P.2d 157 (Colo. 1972)

Eddy v. Moore,

5 Wash. App. 334,

487 P.2d 211 (1971)

Giaccio v. Pennsylvania,

383 U.S. 399 (1966)

13

26,27

13,14

24

20,22

* 15,18

Cases

Griswold v. Connecticut,

381 U.S. 479 (1965)

In Re Winship,

397 U.S. 358 (1970)

Joint Anti-Fascist Refugee

Committee v. McGrath,

341 U.S. 123 (1951)

Katz v. United States,

389 U.S. 347 (1967)

Kaprelian v. Texas Women's

University, 509 F.2d 133

(Sth Cir. 1975)

Kowall v. United States

53 F.R.D. 211 (W.D. Mich. 1971)

McNeese v. Board of

Education, 373 U.S.

668 (1963)

Menard v. Mitchell,

430 F.2d 486 (D.C. Cir. 1970)

Menard v. Mitchell,

328 F. Supp. 718 (D.D.c. 1971),

rev'd in part, aff'd in part,

498 F.2d 1017 (D.C. Cir. 1974)

~iii-

ll

22

14

15

20

15,16,

17,24

4,8,

16,18

Cases

Meyer v. Nebraska,

262 U.S. 390 (1923)

Monroe v. Pape,

365 U.S. 167 (1961)

Morrow v. District of Columbia,

417 F.2d 728 (D.C. Cir. 1969)

NAACP v. Alabama,

357 U.S. 449 (1958)

Olmstead v. United States,

277 U.S. 438 (1928)

Ortwein v. Mackey,

51l F.2d 696 (5th Cir. 1975)

Papachristou v. City of

Jacksonville, 405 U.S. 156 (1972)

Pierce v. Society of Sisters,

268 U.S. 510 (1925)

Ricks v. District of Columbia,

414 F.2d 1097 (D.C. Cir. 1968)

Robinson v. California,

370 U.S. 660 (1962)

Roe v. Wade,

410 U.S. 113 (1973)

-iVe@

22

20

15

22

22,23

14

9

22

22

Cases

Rosenberg v. Martin,

478 F.2d 520 (2d Cir. 1973)

Schware v. Board of Examiners,

353 U.S. 232 (1957)

Sims v. Fox,

505 F.2d 857 (Sth Cir. 1974)

Smith v. Florida,

405 U.S. 172 (1972)

Stanley v. Georgia,

394 U.S. 557 (1969)

Tarlton v. Saxbe,

507 F.2d 1116 (D.C. Cir. 1974)

Tosh v. Buddies' Supermarket,

482 F.2d 329 (5th Cir. 1973)

Travers v. Paton,

261 F. Supp. 110 (D. Conn. 1966)

United States v. Cifarelli, +:

401 F.2d 512 (2d Cir. 1968)

United States v. Fleischman,

339 U.S. 349 (1950)

United States v. Kalish,

271 F. Supp. 768 (D. P.R. 1967)

-V-

25

8,9,24

22

15,19

25

18

15,19

Cases

United States v. MacKay,

43 U.S.L.W. 233 (Feb. 11, 1975)

United States v. White,

401 U.S. 748 (1971)

Wheeler v. Goodman,

306 F. Supp. 58

(W.D. N.C. 1969)

Wisconsin v. Constantineau,

400 U.S. 433 (1971)

York v. Story,

324 F.2d 450 (9th Cir. 1963)

Statutes

28 U.S.C. Section 1343(3) and (4)

42 U.S.C. Section 1983

-vi-

17

26

8,15

5,11,12,

13,14

20,26

27

2,4,5

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 74-891

EDGAR PAUL, Chief of Police,

Louisville Division of Police, and

RUSSELL McCDANIEL, Chief of Police,

Jefferson County Division of Police,

Petitioners,

-V-

EDWARD CHARLES DAVIS, III,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF FOR RESPONDENT

QUESTION PRESENTED

Did petitioners' dissemination of a

flyer to approximately 800 private merchants

and business establishments, characterizing

respondent as an “Active Shoplifter," based

solely on his arrest for shoplifting

followed by the dismissal of all charges

==

against him, constitute a denial of res-

pondent's presumption of innocence, his

right to due process of law and invasion

of his right to privacy, cognizable under

42 U.S.C. Section 1983?

STATEMENT OF THE CASE

On or about December 5, 1972, the

petitioners, Chiefs of Police in the City

of Louisville and Jefferson County, Ken-

tucky, authorized the preparation and

dissemination to the Louisville merchant

community of a flyer containing names and

photographs of persons described as "sub-

jects known to be active in the 7 iminal

field of shoplifting" [App. 8 ]. Accord-

ing to Chief Paul, one thousand copies of

the flyer were prepared, and approximately

eight hundred were distributed to merchants

and businessmen in downtown Louisville

[App. 19]. The flyer stated that the per-

sons whose names and photographs were con-

tained therein “have been arrested during

1971 and 1972 or have been active in

various criminal fields in high density

shopping areas" [App. 8 ]. The name and

photograph of Edward Charles Davis III,

1l/ "App." refers to the separate Appendix

filed in this case,

aSe

the respondent, was contained on page 2 of

the flyer under the heading, “Active Shop-

lifter" [App. 12].

Davis, a photographer employed by the

Louisville Courier-Journal and Times, had

been arrested in Louisville on June 14,

1971 for shoplifting. The charges against

him were never prosecuted and were dis-

missed following his arrest. Davis has

never been tried for nor convicted of the

crime of shoplifting. On September 21,

1971, his case was “filed away with leave,"

and was dismissed on December 11, 1972

[App. 8}.

Shortly after the flyer was released,

two of Davis’ fellow employees became

aware of its existence and brought it to the

attention of Albert C. Allen, Davis' super-

visor at the Louisville Courier-Journal

and Times. Mr. Allen immediately informed

Davis that “he had best not find himself

in a similar situa _ion" in the future and

that he "would view very seriously any

further incidents of this nature" [App. 32].

Allen also testified that the circulation

of the flyer “hindered" Davis' employment

because, "in view of this flyer's circul-

ation to merchants of the community, I

could not, for example, assign Mr. Davis

to photographing anything in a merchantile

(sic) establishment and so that, should

such an assignment come up, I would have

been forced to have someone else cover that

aie

assignment rather than Mr. Davis" [App.

35] .2/

Alleging that he and other persons

similarly situated have suffered mental

anguish, injury to reputation and impair-

ment of earning capacity as a result of

the wide and reckless distribution of the

flyers by the petitioner police chiefs,

Davis initiated this suit as a class ac-

tion3/under 42 U.S.C. Section 1983 and

28 U.S.C. Sections 1343(3) and (4), on

December 12, 1972, seeking compensatory

and punitive damages against petitioners,

based on their deprivation of his right

to due process of law guaranteed by the

Fourteenth Amendment, and their invasion

of his right to privacy, provided by the

First, Fourth, Fifth, Ninth and Four-

2/ It is significant that petitioners

claim, despite the effect of their

flyer, that they do not make arrest

records "available to private em-

ployers" [App. 21]. Indeed, since

they exchange arrest records with the

Federal Bureau of Investigation [Id.],

they are expressly prohibited from

doing so. See Menard v, Mitchell, 328

F.Supp. 718, 727 (D.D.C. 1971).

3/ A class determination has not yet

been made by the District Court.

afea

teenth Amendments. On January 8, 1973, the

District Court conducted a hearing on Davis'

motion for a preliminary injunction, and

thereafter denied the motion. On November

16, 1973 the District Court held that

petitioners had not violated Davis' con-

stitutional rights and dismissed his suit.

On October 22, 1974, the United States

Court of Appeals for the Sixth Circuit re-

versed the District Court's decision and

remanded the case for further proceedings.

The Court of Appeals, relying principally

on the decision of this Court in Wisconsin

v. Constantineau, 400 U.S. 433 (1971), held

that Davis' claim that petitioners' action

had deprived him of the right of due pro-

cess guaranteed by the Fourteenth Amend-

ment stated a cause of action.

SUMMARY OF ARGUMENT

Petitioners, by widely circulating

over eight hundred copies of a leaflet

branding respondent an “active shoplifter,"

although he had never been convicted of any

crime and all charges pending against him

were dropped shortly thereafter, violated

his “rights, privilege or immunities se-

cured by the Constitution" of the United

States, thus permitting respondent to

invoke Federal jurisdiction in accordance

with 42 U.S.C. 1983.

1. Punishment without guilt, and

punishment on the basis of status rather

a@=

than conduct, have both been recognized by

this Court as fundamental violations of the

right of due process of iaw guaranteed by

the Fourteenth Amendment. By publicly

labelling respondent a criminal, solely on

the basis of his status as an arrestee, and

without meeting their burden of proving him

guilty beyond a reasonable doubt, petition-

ers ignored the constitutionally-mandated

presumption of innocence and denied respon-

dent due process of law.

2. Where the state attaches a badge

of infamy to a citizen, procedural due

process requires notice and an opportunity

to be heard before the damage to reputa-

tion is permitted. Petitioners’ publica-

tion and widespread dissemination of the

flyer stigmatizing respondent as an “active

shoplifter" curtailed his usefulness to his

employer, jeopardized his job and damaged

his good name. As the Court of Appeals

recognized in holding that respondent's

claim does allege a violation of consti-

tutionally-protected rights, petitioners'

failure to provide Davis with notice and

an opportunity for a hearing denied him

the procedural due process required by the

Fourteenth Amendment.

3. This Court has construed the

constitutional right of privacy to protect

personal liberty from infringement by

state action in a wide variety of circum-

stances. Respondent's arrest record is of

doubtful relevance in determining his hon-

_esty or morality, but the damaging effect

ae

of its wide dissemination on his employment,

reputation, and psychological well-being

constitutes a grave invasion of his right

of privacy and cannot be justified by any

compelling state interest.

ARGUMENT

I

PETITIONERS HAVE PUNISHED DAVIS FOR HIS

STATUS AS AN ARRESTEE AND HAVE THEREBY

VIOLATED HIS PRESUMPTION OF INNOCENCE

AND HIS RIGHT TO DUE PROCESS OF LAW.

By publicly and intentionally circu-

lating over eight hundred copies of a flyer

branding Davis an “Active Shoplifter,” the

petitioners have effectively punished him

for the offense of shopliftinc, although

he has never been convicted of that crime

and all charges against him were dismissed

less than a week after the flyer was issued.

That respondent has in fact been punished

is demonstrated by the testimony of his

employment supervisor that his usefulness

as a newspaper photographer has been cur-

tailed and any future "incidents" will re-

sult in his dismissal [App. 32].

When state officials punish an inno-

cent citizen, their action “violates the

most rudimentary concept of due process of

law." Giaccio v. Pennsylvania 383 U.S.

399, 405 (1966) (Stewart, J. concurring).

ao

At the time the flyer was released, the only

evidence of any wrongdoing on Davis’ part was

the bare fact of his arrest. But an arrest

“proves nothing so far as the actual conduct

of the person arrested is concerned." Menard

v. Mitchell, 328 F.Supp. 718, 724 (D.D.C.

1971), rev'd in part, aff'd in part, 498 F.2d

1017 (D.c. Cir. 1974). This Court has re-

peatedly affirmed the basic principle that

under our system of criminal justice only a

conviction carries legal significance as to

@ person's involvement in culpable behavior.

“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."

Schware v. Board of Bar Examiners, 353 U.S.

232, 241 (1957). When, as in the case at

bar, the arrested person is released without

trial, “whatever probative force the arrest

might have had is formally dissipated." 353

U.S. at 241.

Since an arrest alone can provide no

basis for the conclusion that the arrested

person has engaged in criminal conduct, the

sole rationale is his status as an arrestee.

But “the due process clause of the Fourteenth

Amendment prohibits as cruel and unusual the

punishment of status.” Wheeler v. Goodman,

306 F. Supp. 58, 62 (W.D. N.c. 1969).

Accordingly, this Court has voided statutes

which impose punishment because of a dis-

ease, such as narcotics addiction. Robin-

son v. California, 370 U.S. 660 (1962); for

=@=

the same reason, "a citizen cannot be

punished merely for being a ‘suspicious

person'," Ricks v. District of Columbia,

414 F.2d 1097, 1110 (D.C. Cir. 1968); nor

can a person be punished because of his in-

digent economic status. See, e.g., Papa-

christou v. City of Jacksonville, 405U.S.

156 (1972); Smith v. Florida, 405U.S. 172

(1972). Here, there has been no determin-

ation -- indeed, there is no evidence --

that respondent's status resulted from any

misconduct on his part. Thus, his status

as an arrestee is a constitutionally im-

permissible basis for punishment.

The principle that an arrest without

a trial or conviction provides no basis

for the inference of guilt or the imposi-

tion of punishment is grounded in “the

presumption of innocence that surrounds the

defendant in a criminal prosecution.”

United States v. Fleischman, 339 U.S. 349

(1950). Although the presumption of inno-

cence is not explicitly mentioned in the

Constitution, this Court has indicated many

times that it is assumed to be constitu-

tionally required under the due process

clauses of the Fifth and Fourteenth Amend-

ments. See, e.g., Schware v. Board of Bar

Examiners, supra; United States v. Fleisch-

man, supra; In Re Winship 397 U.S. 358

(1970). Indeed, in Winship the Court ex-

tended the constitutional basis of the pre-

sumption of innocence to hold that the

proof of guilt beyond a reasonable doubt is

also constitutionally mandated. Thus, "[A]

society that values the good name and free-

dom of every individual should not condemn

-10-

a man for commission of a crime when there

is a reasonable doubt about his guilt",

397 U.S. at 364.

Here, where respondent has never been

tried for the crime for which his good

name has been injured and all charges a-

gainst him have been dropped, there is far

more than reasonable doubt about his guilt.

Although our criminal justice system endows

police officers with broad discretion in

making arrests, it relies on the other in-

gredients of the system -- the preliminary

hearing, the right to counsel, the presump-

tion of innocence, and the state's burden

of proving guilt beyond a reasonable doubt

-- to weed out errors and to prevent the

punishment of innocent persons. "It is

also important to our free society that

every individual going about his ordinary

affairs have confidence that his government

cannot adjudge him guilty of a criminal

offense without convincing a proper fact-

finder of his guilt with utmost certainty."

In re Winship, 397 U.S. at 358. By pro-

claiming to the Louisville community that

Davis is an active criminal, petitioners

violated the presumption of innocence,

failed to meet their burden of proving

guilt beyond a reasonable doubt, and thus

denied him due process of law.

Il

BY BRANDING RESPONDENT WITH A

BADGE OF INFAMY, WITHOUT GIVING

HIM NOTICE AND AN OPPORTUNITY

FOR A HEARING, PETITIONERS DE-

eile

PRIVED HIM OF HIS RIGHT TO

PROCEDURAL DUE PROCESS UNDER

THE FOURTEENTH AMENDMENT

When the police publicly and offi-

cially characterized Davis as an “active

shoplifter" -- without giving him notice

or an opportunity for a hearing to chal-

lenge their action -- they denied him his

right to procedural due process under the

Fourteenth Amendment. "The right to be

heard before being condemned to suffer

grievous loss of any kind, even though it

may not involve the stigma and hardship of

a criminal conviction is a principle basic

to our society." Joint Anti-Fascist Re-

fugee Committee v. McGrath, 341 U.S. 123,

168 (1951) (Prankfurter, J., concurring).

In correctly applying this princi-

ple to Davis' case, the Court of Appeals

relied primarily on the decision of this

Court in Wisconsin v. Constantineau, 400

U.S. 433 (1971). There, a statute per-

mitting police officials to post in all

local retail liquor stores a notice for-

bidding sales or gifts of liquor to per-

sons who drink excessively was struck down

for failing to provide the persons whose

names were posted with advance notice and

an opportunity to be heard. The Court's

conclusion that "where the State attaches

a'badge of infamy' to the citizen, due pro-

cess comes into play” (400 U.S. at 437) is

directly on point here. In fact, the case

at bar presents a stronger claim based on

the denial of procedural due process

»

alitie

protections than did Constantineau.

The public and official characteriza-

tion of Davis as an “active shoplifter" is

unguestionably a "badge of infamy". While

it is possible that Constantineau's post-

ing as an excessive drinker might have been

interpreted by the community as no more

than a mark of illness or infirmity, no

such mitigating interpretation is possible

here. Being labelled a criminal is a flat

proclamation of dishonesty, untrustworthi-

ness, dangerousness to society, and immoral-

ity. Davis' good name and integrity were

soiled by the police flyer without his hav-

ing any opportunity to challenge petition-

ers' action. This is contrary to the clear

requirement of Constantineau. "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."

400 U.S. at 437.

Petitioners’ have attempted to dis-

tinguish Constantineau on the ground that

the police chief in that case was acting

pursuant to a statute, while the police

here assertedly acted "independently of any

directions or authority" [Pet. Br. at 20].

It is difficult, however, to fathom the

significance of this distinction. Peti-

tioners acknowledge that their actions were

taken “under color of law" (Id. at 12),

and this Court has expressly held, of course,

that the absence of a statute is no bar to

a suit against state officials under Section

aite

1983. Adickes v. S.H. Kress, 398 U.S. 144

(1970).

Nor is the holding of this Court in

Board of Regents v. Roth, 408 U.S. 564

(1972), that procedural due process is re-

guired only where liberty or property in-

terests are present, any impediment to re-

spondent's claim. The record reflects that

petitioners’ action in publishing the flyer

directly implicated Davis' liberty interest

within the meaning of Roth. Although Roth

rejected the procedural due process claim

of a non-tenured state university assistant

professor that he was entitled to a hearing

before his contract could be cancelled, the

Roth Court, relying on Constantineau, stat-

ed that procedural due process would have

been required had Roth been charged with

"dishonesty or immorality" (408 U.S. at

573), as Davis has in this case. In Sims

v. Fox, 505 F.2d 857, 863 (5th Cir. 1974)

(en banc), the Fifth Circuit recently

analyzed Roth in terms directly relevant

to Davis' claim:

"Roth teaches that the government's

attack on one's reputation may in-

fringe constitutionally protected

liberty in two respects: (1) gov-

ernmental degradation of one's

standing in his community may be

a denial of ‘liberty'; (2) govern-

mental communication of derogatory

information to employers may be an

xy

4/

ae

attack on ‘liberty.'"

Thus, even if petitioners were cor-

rect that the dissemination of the flyer

did not a injure respondent's em-

ployment, — the very "degradation of one's

standing in his community" that results

from being branded a shoplifter implicates

the liberty interest identified in Roth and

mandates the full protection afforded by

constitutional procedural due process.

Constantineau, Roth, and the line of cases

interpreting Roth thus demonstrate that by

failing to provide respondent with notice

and an opportunity for a hearing before

publicly labelling him a criminal, petition-

ers denied him the due process required by

the Fourteenth Amendment.

4/ See also, Kaprelian v. Texas Women's

University, 509 F.2d 133 (5th Cir. 1975);

Ortwein v. Mackey, 51l F.2d 696, 698 (5th

Cir. 1975) ("infringement of one's liberty

interest can be found . . . where the govern-

mental agency has made . .. the allegedly

stigmatizing charge public in any official

or intentional manner.")

5/ Petitioners' contention that respondent

was not injured, however, flies in the face

of the record, which reveals that Davis' em-

ployment supervisor concluded that the cir-

culation of the flyer had “hindered" Davis'

usefulness [App. 34], since "[o]Jur photo-

graphers must be accepted as reasonably hon-

orable and trustful men wherever they go"

“App. 35]. Accordingly, Davis can no longer

be sent on a reporting assignment in any

“merchantile establishment" [Id.].

atin

IIil

PETITIONERS' WIDE DISTRIBUTION OF THE

RECORD OF RESPONDENT'S ARREST NOT RE-

SULTING IN CONVICTION, FALSELY CHARAC-

TERIZED HIM AS A CRIMINAL, THEREBY IN-

VADING HIS RIGHT TO PRIVACY

Although the privacy issues arising

out of the use and abuse of arrest records

are relatively recent developments in the

law, federal and state courts throughout

the country have increasingly held that

the wide dissemination -- and sometimes

even the retention -- of records of arrest

not followed by conviction constitutes an

invasion of the constitutional and common

law right to privacy. See, e.g., Tarlton

v. Saxbe, 507 F.2d 1116 (D.C. Cir. 1974),

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

Cir. 1970), on remand, 328 F. Supp. 718

(D.D.c. 1971), aff'd in part, rev'd in

part sub nom. Menard v. Saxbe, 498 F.2d

1017 (D.c. Cir. 1974); Morrow v. District

of Columbia, 417 F.2d 728 (D.C. Cir. 1969);

Kowall v. United States, 53 F.R.D. 211

(WD Mich. 1971); Wheeler v. Goodman, 306

F. Supp. 968 (WD NC 1969), United States

v. Kalish, 271 F. Supp. 768 (D. PR 1967),

Eddy v. Moore, 5 Wash. App. 334, 487

P.2da 211 (1971), Davidson v. Dill, 503

P.2d 157 (Colo. 1972) .6/

6/ The leading federal case on this issue

-16-

In barring dissemination and some-

6 / continued

is Menard v. Saxbe, supra. Menard had

been picked up on "suspicion" of burglary;

although charges were never brought against

him, his arrest record and fingerprints

were forwarded to the FBI. In Menard v.

Mitchell, 430 F.2d 486 (D.C. Cir. 1970),

the Court of Appeals reversed the District

Court's grant of summary judgment and

held that Menard's suit to expunge his re-

cord from the FBI files on grounds of in-

vasion of privacy stated a claim for which

relief could be granted. "It is clear that

the government may not, wittingly or un-

wittingly, engage in wanton defamation of

individuals and groups" [430 F.2d at 492].

On remand, the District Court held that

the dissemination of arrest records of

unconvicted persons “clearly invades indi-

vidual privacy by revealing episodes in a

person's life of doubtful and certainly

not determined import" (328 F. Supp. 718,

725 (D.D.C. 1971).] On a second appeal,

the Court of Appeals affirmed the judg-

ment barring dissemination of Menard's

arrest record, and remanded the case to

the District Court with instructions to

order expungement of the record from the

FBI's criminal files [498 F.2d 1017 (D.C.

Cir. 1974)]. Although this Court has not

made a definitive statement on the problem

of privacy and the police records of un-

alte

times ordering the expungement of the arrest

records of persons not convicted of a crime,

courts have taken judicial notice of the

personal injury and economic hardship re-

sulting from the public circulation of

arrest records. As the Court of Appeals

observed in Menard v. Mitchell, 430 F.2d

at 490, for example, “opportunities for

schooling, employment, or professional

licenses may be restricted or nonexistent

as a consequence of the mere fact of an

arrest, even if followed by acquittal or

complete exoneration of the charges in-

volved." It has also been judicially

noticed that a person with an arrest re-

cord is more likely to be subject to police

scrutiny -- the first to be questioned and

the last to be eliminated as a suspect in

an investigation. See, e.g., United States

v. MacKay, 43 U.S.L.W. 233 (Feb. ll, 1975).

Similarly, if a person is subsequently

arrested, his prior arrest record may arise

6/ continued

convicted persons, Mr. Justice Rehnquist

has expressed the view that “as a matter

of policy or philosophy this controversy

seems properly resolved in Menard's favor."

Rehnquist, "Is An Expanded Right of Pri-

vacy Consistent With Fair and Effective

Law Enforcement?" Nelson Timothy Stephens

Lectures, University of Kansas Law School,

1974, p. 12.

—s);™

to haunt him in presentence reports or in

seeking bail pending trial. United States

v. Cifarelli, 401 F.2d 512 (2d Cir. 1968)

In sum, "the seriousness of the arrest re-

cord problem, although perhaps questionable

in the past, is now too well documented to

be doubted." Davidson v. Dill, 503 P.2d 157,

159-60 (1972).

The wide dissemination of arrest re-

cords is a denial of both the common law

and constitutionally protected right to

privacy and has a restrictive effect on the

exercise of other fundamental constitutional

rights. As the District Court pointed out

in Menard, “systematic recordation and dis-

semination of information about individual

citizens is a form of surveillance and con-

trol which may easily inhibit freedou to

speak, to work, and to move about in the

land" (328 F. Supp. at 726). Here, res-

pondent's employer has concluded that his

ability to work has in fact been inhibited

and he can no longer be used on certain

assignments because of the publication of

the police flyer. Indeed, Davis' employer

has warned him that any future "incidents"

resulting in the publication of a similar

flyer will result in his dismissal. Accor-

dingly, he will necessarily be influenced

to steer wide of any conduct which might

cost him his job, including legitimate and

constitutionally protected conduct. Such

overbroad penalization of innocent conduct

is inherent in the circulation of the arrest

a, ————————————————————

-19-

records of unconvicted persons, as the Court

of Appeals pointed out in Tarlton v. Saxbe,

507 F.2d at 1124:

"Government collection and dis-

semination of inaccurate crimi-

nal information without reason-

able precautions to insure accur-

acy could induce a levelling con-

formity inconsistent with the

diversity of ideas and manners

which has traditionally character-

ized our national life and found

legal protection in the First

Amendment. "

This restriction on respondent's

right to work and the negative effect on

his free exercixe of protected activities

thus compounds the petitioners’ assault

on Davis' reputation. As one court has

stated in an analogous circumstance, the

dissemination of arrest records "consti-

tutes an unwarranted attack upon [a person's]

character and reputation, and violates his

right of privacy; it violates his dignity

as a human being." United States v. Kalish,

271 F. Supp. 968 (D. P.R. 1967). See also

Eddy v. Moore, supra. The seriousness of

the assault on privacy is exacerbated

where as here respondent has never been

convicted of any crime. As this Court indi-

cated almost ninety years ago, “the essence

of the offence ... is the invasion of his

indefensible right of personal security,

-20-

personal liberty, and private property,

whore that right has never been forfeited

by his conviction of some public offense.”

Boyd v. United States, 116 U.S. 616, 630

(1886) (emphasis supplied).

Petitioners even concede that their

action may have invaded Davis' right of

privacy, but assert that he has an exclu-

sive civil remedy in the courts of Kentucky

[Pet. Br. at 14]. But it is immaterial, in-

sofar as the right to pursue remedies under

the Civil Rights Act is concerned, that

state remedies may also be available when

constitutionally protected rights are in-

fringed. This Court has repeatedly empha-

sized that "[i]t is no answer that the state

has a law which if enforced would give re-

lief. The federal remedy is supplementary

to the state remedy, and the latter need

not be first sought and refused before the

federal one is invoked." Monroe v. Pape,

365 U.S. 167, 183 (1961). See also McNeese

v. Board of Education, 373 U.S. 668 (1963),

York v. Story, 324 F.2d 450 (9th Cir. 1963).

Although petitioners acknowledge that

in certain circumstances the interest of a

citizen in his personal privacy is protec~-

ted by the Constitution, they urge the Court

to restrict the holding of Griswold v. Con-

necticut, 381 U.S. 479 (1965), toa single

“carefully defined ‘zone of privacy'” [Pet.

Br. at 13]. _7/ Given the necessary variety

7/ It is significant that petitioners do

atic

of facets of a right designed to protect a

person's interests in reputation, mental

well-being, and personal dignity -- which

the right of privacy represents -- such

an interpretation flies in the face of

Griswold. Indeed, this Court has consis-

tently construed the right of privacy

broadly, including within its zone large

areas of private behavior not subject to

restrictive state action, absent a clear

demonstration of compelling state interest.

Here, petitioners have not offered the

slightest evidence that their actions in

circulating the flyer were governed by any

state interest, compelling or otherwise.

The diversity of the interests pro-

tected and government actions proscribed

by the right of privacy is as great as

the number of constitutional provisions

cited as the basis for the right. 8/ The

_7/ continued

not define this single "zone". Indeed, they

recognize that in Griswold "this Court ruled

that the rights secured by the First, Fourth,

Fifth and Ninth Amendments have certain

‘penumbras' which create ‘zones of privacy'"

[Pet. Br. at 13].

_8/ In varying contexts and to varying

degrees, the Court or individual Justices

have based their recognition of the right

=22<

Constitutional protection of privacy has

been found to include “the right to satisfy

[one's] intellectual and emotional needs in

the privacy of his own home," Stanley v.

Georgia, 394 U.S. 557, 565 (1969); the right

“to assume that the words [one] utters into

the mouthpiece [of a telephone] will not be

broadcast to the world," Katz v. United

States, 389 U.S. 347, 352 (1967), and the

right of parents to direct the upbringing

and education of children under their con-

trol, Pierce v. Society of Sisters, 268 U.S.

510, 534 (1925); Meyer v. Nebraska, 262

U.S. 390 (1923). These unrelated activities

are connected by the fact that their infringe-

ment inhibits the personal liberty which is

the essence of the right of privacy. In

_8/ continued

of privacy on the First Amendment, Stanley

v. Georgia, 394 U.S. 557 (1969); NAACP v.

Alabama, 357 U.S. 449 (1958); the Fourth

Amendment, Boyd v. United States, 116 U.S.

616 (1886); Katz v. United States, 389 U.S.

397 (1967); Olmstead v. United States, 277

U.S. 438, 478 (1928) (Brandeis, J. dissen-

ting); the Ninth Amendment, Griswold v.

Connecticut at 486 (Goldberg, J., concur-

ring); the “penumbras" of the Bill of Rights,

Griswold v. Connecticut, supra (plurality

opinion); and in the concept of ordered

liberty guaranteed by the Fifth and Four-

teenth Amendments, Roe v. Wade, 410 U.S.

.113 (1973).

efiia

protecting privacy, “time and again, this

Court . . . has refused to place an unduly

literal construction upon it." Olmstead v.

United States, 277 U.S. 438, 476 (1928)

(Brandeis, J. dissenting).

The Court, therefore, has given an

expansive application to the constitutional

right of privacy, including -- rather than

limiting and excluding -- new and unrelated

areas within its protection as the occasions

arise. Indeed, Mr. Justice Brandeis, a

father of both the common law and constitu-

tional privacy doctrines, _9/ concluded

that the former is always included in the

latter: “Everv unjustifiable intrusion by

the government upon the privacy of the in-

dividual, whatever the means employed, must

be deemed a violation of the Fourth Amend-

ment." Olmstead v. United States, 277 U.S.

at 478. Although this Court need not reach

such a sweeping conclusion, it is clear that

the circulation of a flyer implicating the

presumptively innocent respondent as a crimi-

nal is a violation of his constitutional

right of privacy no matter how the right is

defined. If, as one commentator has written,

the basic attribute of the right of privacy

is "the individual's ability to control the

_9/ See Warren and Brandeis, Right to Pri-

vacy, 4 HARV. L. REV. 193 (1890).

-24-

flow of information concerning himself"

Miller, Personal Privacy in the Computer

Age, 69 MICH. L. REV. 1089, 1107 (1969),

there can be no greater invasion of an

innocent citizen's privacy than the public

circulation of his arrest record. 10/

10/ Several courts have required the govern-

ment to prove a compelling interest in

order to justify invasion of a person's pri-

vacy. See, e.g., Eddy v. Moore, supra;

Menard v. Mitchell, supra; Griswold v. Con=

necticut, supra (Goldberg, J., concurring).

Petitioners, however, have shown no legi-

timate government interest -- compelling

or not -- to justify the circulation of

respondent's arrest record, and defend their

action with the conclusory assertion that

“retail merchants have a legitimate interest

in protecting their goods from theft" [Pet.

Br. at 19]. However, "“[t]here is a limit

beyond which the government may not tread

in devising classifications that lump the

innocent with the guilty." Menard v. Mit-

chell, 430 F.2d at 492. See also, Boorda

vy. Subversive Activities Control Board,

421 F.2a 1142, 1149 (D.c. Cir. 1969).

Since the mere fact of arrest "has very

little if any probative value in showing

that [a person] has engaged in any mis-

conduct," Schware v. Board of Examiners,

353 U.S. at 241, petitioners cannot demon-

strate any compelling or legitimate state

interest to justify the egregious assault

which they have made on Davis' privacy.

oOo

-25-

Each of the lower court cases cited

by petitioners in an attempt to show that

their invasion of Davis' privacy does not

amount to the deprivation of a constitu-

tional right is distinguishable from this

case. In Travers v. Paton, 261 F. Supp.

110 (D. Conn. 1966), for example, the

plaintiff had already been convicted of a

crime when he complained that his constitu-

tional right of privacy had been violated

by the televising of his parole hearing.

Here, however, Davis has never been tried

for nor convicted of any crime. Nor is

Rosenberg v. Martin, 478 F.2d 520 (2nd

Cir. 1973), pertinent to this case, since

there the police were held not to have

violated any right of privacy of a fugitive

by publicizing the facts of his crime, so

long as the information was reasonably rela-

ted to the task of locating him and taking

him into custody. Tosh v. Buddies' Super-

market, 482 F.2d 329 (5th Cir. 1973),

another case upon which petitioners rely,

was a suit under 42 U.S.C. Section 1983 for

invasion of privacy based on the circulation

of mug shots and arrest records by a private,

commercial organization. It was dismissed

because there was no action "under color of

law" as required by the statute. The court

in Tosh explicitly stated that it did not

decide whether “widespread publication"

of information about an individual by the

police would have given rise to a cause of

action coanizable under Section 1983.

»

=-26<

Baker v. Howard, 419 F.2d 376 (9th

Cir. 1969), is also distinguishable. In

that case, Baker sued police officers for

providing, and the manager of a radio sta-

tion for broadcasting, false information

that Baker had committed a crime. In re-

jecting plaintiff's suit for invasion of

privacy, the court noted that "the case

involves defendants' First Amendment right

of free speech and free press and for that

reason calls for the exercise of restraint"

[419 F.2d at 377]. Further, the challenged

action in Baker involved only the brief

oral publication of misleading information

about the plaintiff. However large the

audience or damaging the statements may

have been, they were only spoken words,

evanescent as the air on which they were

transmitted and soon forgotten by those

who heard them. Far greater an invasion

of privacy is petitioners’ circulation of

a written document, carrying the imprimatur

of the police chief, characterizing respon-

dent as a criminal. As Mr. Justice Harlan

pointed out in another context, in dealing

with oral comments “one may count on... -

the likelihood that the listener will either

overlook or forget what is said," as long

as he does not have "to contend with a docu-

mented record." United States v. White,

401 U.S. 748, 788 (1971) (Harlan, J., dissen-

ting).

More relevant to this case is the deci-

sion of the Ninth Circuit Court of Appeals

in York v. Story, 324 F.2d 450 (9th Cir. 1963).

et ee a ee

a2Fe

There the court held that police officers

may be liable under the Civil Rights Act

for invasion of privacy. Although the Baker

Court found that there had been no invasion

of privacy in that case, it affirmed the York

holding that “there can be such a gross abuse

of privacy as to amount to an abridgment of

fundamental constitutional guarantees." In

light of the damaging and lasting effects

the dissemination of arrest records has on

a person's employment and reputation, the

action by petitioner police chiefs in this

case constitutes invasion of respondent's

personal freedom and is a deprivation of

his constitutionally-protected right to

privacy.

CONCLUSION

For the foregoing reasons the judg-

ment of the Court of Appeals should he

affirmed.

Melvin L. Wulf

John H. F. Shattuck

American Civil

Liberties Union

Foundation

22 East 40th Street

New York, New York

10016

Leon Friedman

Hofstra University

School of Law

Hempstead, New York

11550

Attorneys

July 31, 1975

=26-

Respectfully submitted,

Daniel T. Taylor, III

Post Office Box 1262

Lousiville, Kentucky

40201

Robert Allen Sedler

Post Office Box 862

University Station

Lexington, Kentucky

40506

William H. Allison, Jr.

3208 West Broadway

Louisville, Kentucky

40201

for Respondent

Respondents' attorneys acknowledge the

assistance of Richard A. Briffault,

second year student

at Harvard Law School,

in preparation of this brief.