Petition — Ham v. City of Tulsa

“4- 1402 May & 875 |

04 BH ey

ny 1 6 1975

CHARLES L. HAM, Petitioner,

Die

ee on or) ore 8

vs. yf - COURT We

THE CITY OF TULSA

A Municipal Corporation,

Respondent.

Appeal from the Tenth Circuit Court of

Appeals, Case Number 74-1631

PETITION FOR WRIT OF CERTIORARL

Robert Lee Blackwood

Attorney for Petitioner

1311 South Guthrie

Tulsa, Oklahoma, 74119

Service To: Mr. Phillip Haney

Asst. City Attorney

City Hall

Tulsa, Oklahoma 74103

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES L. HAM,

Petitioner,

vs.

THE CITY OF TULSA,

A Municipal Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

COMES NOW, the Petitioner and for Petition

of Certiorari, does herein submit,to-wit:

a. Petitioner does appeal from the decis-

ion of the United States Circuit Court of

Appeals for the Tenth Circuit. The man-

date of the Tenth Circuit Court of Appeals

was entered on the 7th day of February,

1975, and is attached here as Appendix I.

b. The Petitioner invokes the jurisdiction

of this Court to review the judgment of

the Tenth Circuit Court of Appeals because

this Petitioner has the constitutionally

protected right under the Fourth, Fifth,

Ninth, and Fourteenth Amendments to the

United States Constitution to be free from

unreaSonable searches, seizures and to

prohibit his personal property, books and

papers from being taken from him by the

City of Tulsa without due process of law,

and, further, the Petitioner does have

standing to sue for the protection of his

civil rights and damages for the taking

of his personal property, books and papers

1

without the payment of damages therefore

by the City of Tulsa by virtue of 42 U.S.

C.A., Sec. 1983 and 1938. And, that Pet-

itioner has the further right to be com-

pensated for the public taking and use of

his personal property, books and papers

without the payment of just compensation

therefor in accordance with Article II,

Section 24 of the Oklahoma Constitution

which prohibits the taking of private pro-

perty for public use without the payment

of just compensation therefor, and that

to deny Petitioner this right is to deny

him of equal protection of the law pro-

hibited by the Fourteenth Amendment, and

does also deny the Petitioner the right

to the security of his privacy and the

invaSion thereof by a municipality which

is prohibited by the Fourth, Fifth, and

Ninth Amendments to the United States Con-

Stitution.

c: Questions presented for review are

the following:

May the poorest man in his cottage

enjoy his privacy and bid defiance

to all the forces of the municipal

police power when they have taken

his private books, papers and per-

Sonal property, contrary to the

provisions of the Fourth and Four-

teenth Amendments to the United

States Constitution?

And, if the Police Power of a mun-

icipality does cross the threshold

of the ruined tenement contrary to

the United States Constitution,does

not the citizen have the right to

sue for damages for the trespass of

his privacy, as well as for the tak-

ing of his books, papers and property

and the protection of his civil rights,

pursuant to the law and equitable

powers contained in 42 U.S.C.A.

1983 and 1988 of the federal statutes,

and contrary to the provision in

the citizens constitution prohibiting

the taking of private property with-

out the payment of just compensation

therefor ?

A concise statemen. .*° the facts of the

appeal are as follows:

Petitioner's property was taken from his

reSidence on the 30th day of May, 1973,

pursuant to an illegal search warrant which

did not comply with the law of the State of

Oklahoma. The City of Tulsa obtained the

illegal warrant and used it to enter the

Petitioner's residence, whereupon certain

items of Petitioner's personal papers and

property, including childrens' books, of

which he was the author, and personal re-

cords, were Seized and taken by the Res-

pondent municipality. Petitioner claimed

that the wrongful actions of the Respond-

ent were not only accomplished under color

of State law, but that his property was

taken from him without due process of law

as guaranteed by the Fourteenth Amendment

to the United States Constitution, and that

Petitioner should thereby be compensated

under the State of Oklahoma Constitution

which provides that private property can-

not be taken for public use without just

compensation being paid therefor; Article

II, Section 24, Oklahoma Constitution.

Respondent's Motion to Dismiss was sustain-

2d by the U.S. District Court for the North

ern District of Oklahoma, due to the fact

that 42 U.S.C.A., 1983 did not contemplate

municipalities as being persons within the

meaning of federal law. Petitioner's suit

was dismissed, although Fetitioner counter-

ed with the fact that 42 U.S.C.A., 1983

provided the requisite equity jurisdiction

for the federal issues of due process and

the invasion of privacy and tnat the Court

could thereby decide the compensation

which Fetiticner was entitled to by virtue

of Article II, Section 24 of the Oklahoma

Constitution as a question of pendent juris-

diction. Thereafter, Petitioner appealed

to the United States Court of Appeals for

the Tenth Circuit and the judgment of the

United States District Court for the North-

ern District of Oklahoma was affirmed by

virtue of this Court's holdings in M Vv.

County of Alameda, 411 U.S. ae & (ig7sh;

Monroe v. Pape, 305 U.S. 167, (1961).

d. The jurisdiction of the Federal Court

was sought by this Petitioner on the basis

that his civil rights had been violated in

accordance with 42 U.S.C.A., Section 1983

and Section 1983, and that his constitu-

tional rights in accordance with the Fourth

Fifth, Ninth and Fourteenth Amendments were

violated. The Petitioner seeks review in

this Court because the Petitioner was denied

standing to sue under 42 U.S.C.A., Section

1983, and it was held that the equity juris-

diction provided in 42 U.S.°.A. did not

allow him to sue the City of Tulsa for com-

pensation for the taking of nis books,papers

and property. Further, this Court should

entertain jurisdiction for a Writ of Cert-

{orari in accordance with Rule 19b of this

Court, due to the fact that the Tenth Cir-

cuit Court of Appeals has decided that

equity jurisdiction of 42 U.S.C.A., Section

19388 does not allow actions by a citizen

against a municipality for damages when

Justice Marshall in the majority opinion

in Moor v. Count f Alameda, 411 U.S.

693, (1973) expressly recognized that

there is an area of equity jurisdiction

which may be invoked by 42 U.S.C.A.,1988.

And, the Petitioner's case now before this

Court is exactly the type of case that

Justice Douglas wrote about in his dis-

sent in the Moor v. County of Alameda

case.

e. The Court below held that Moor v

County of Alameda, et al. (1973); Gil vu.

S. 693, and Monroe v. Pape (1961), 365

U.S. 167 aS being conclusive of this ma-

tter since in those cases it was held trat

a municipality was not a "person" within

the meaning of the Civil Rights Act. At

this point I would direct the attention

of the Court to the dissenting opinion of

Justice Douglas which begins at page 723

of the Moor v. County of Alameda caSe.

In that dissent, Justice Douglas correctly

points out that in the Monroe v. Fape de-

cision, the issue was whether or not mun-

icipalities were liable in damages and

Justice Douglas also aptly points out that

the claims in Monroe v. Pa were being

Strongly pressed because private remedies

against officers for illegal Searches and

Seizures are conspicuously ineffective,and

because municipal liability will not only

afford plaintiffs responsible defendants,

but cause those defendants to eradicate

abuses that exist at the police level.

Further, Justice Douglas correctly points

out that 42 U.S.C.A., Section 1983 permits

equitable relief aS well as damages and

cites the case of Mitchum v. Foster, 407

U.S. 225 at page ola for the following:

This legislation makes evident that

Congress clearly conceived that it

was altering the relationship be-

tween the States and the nation with

respect to the protection of Fed-

erally created rights; it was con-

cerned that State instrumentalities

could not protect those rights; it

realized that State officers might,

in fact, be antipathic to the vin-

dication of those rights; and it

believed that these failings exten-

ded to the State Courts.

Therefore, this Court must carefully weigh

the right of this Petitioner to have some

type of equitable relief, if not in dam-

ages, pursuant to 42 U.S.C.A., Section

1983, 1988 or for the return of his pro-

perty, then for a for property

which was deprived from him by the lack

of due process of law which is guaranteed

to the appellant, not only by Article II,

Section 24 of the Oklahoma Constitution,

but also by virtue of the Fourteenth Amend-

ment to the United States Constitution.

Since 1765 in the case of Entick v.

Carrington and Three Other Kings' Messan-

gers, 19 Howell's State Trials, 1029, a

subject of the English Kingdom has had the

right to sue for his damages in trespass

for the seizure of his papers and books.

Should a citizen of the United States be

afforded less a right, even though the

adoption of the Fourth Amendment to our

Constitution was a colonial recognition

of the wrongs inherent in writs of assis-

tance which fostered unreasonable searches

and seizures. Unit S s, 116

U.S. 616, 630 (1 views the matter

correctly:

It is not the breaking of his doors,

and the rummaging of his drawers that

constitutes the eSsence of the

offense, but the invasion of his

indefeasible right to personal

Security, personal liberty and

private property...

And, in this case, Petitioner should be

compensated for the taking of his private

property and 42 U.S.C.A. gives the federal

Courts the right to have this Petitioner

compensated pursuant to Article II, Sec-

tion 24 of the Oklahoma Constitution.

Equally important in this appeal is the

fact that the appellant, as guaranteed by

the penumbra of constitutional rights

guaranteed by the First, Fourth, Fifth

and Ninth Amendments to the United States

Constitution, as well as by the protection

and due process clause of the Fourteenth

Amendment, is entitled to an enclave of

privacy which is protected from govern-

mental intrusion. te v. State of

Conn. 85 S.Ct. 1678, 361 U.S. 479, 14 L.

Ed. 510; Katz v, U.S.,88 S.Ct. 507, 389

U.S. 347, 19 L.Ed. 576 (1967). Thus, it

is quite important that when the Court is

considering the questions which not only

involve the invasion of the privacy of a

citizen's domicle, but also encompase the

taking of personal property and papers

contrary to the Fourteenth Amencment, that

the Court must prot2ct the Federal civil

rights of the citizen involved by extend-

ing the equitable protections of the equal

protection and due process clause as being

applicable against the exercise of State

power, however manifested, whether exercised

directly or through municipal subdivisions

of the State. See Avery vy. Midland County

Texas, 88 S.Ct. 1114, 309 U.S., 47 20 L.

Ed.2d. 45 , on remand, 430 SW2d. 482 (1968).

Respectfully submitted,

Attorney for Fetitioner

IN THE UNITED STATES DISTRICT COURT FOR

THe NORTHERN DISTRICT OF OKLAHOMA

CHAALZS L. HAM, ) 74-C0-234

Plaintiff,

wae EiLeée oO.

THE CITY OF TULSA, Sir. ON

A Municipal Corporation, Jack C. S.lw ., Clerk

Defendant. U. S. DISTRICT COURT

ORCER SUSTAINING DEFENDANT'S MOTION TO

DISMISS AND DISMISSING THE CAUSE OF

ACTION AD COMPLAINT

| The Court has fcr consideration the

Jefendarnt's Motion to Dismiss, the briefs

in Support and opposition tnereto, and,

being fully advised in the premises, finds:

: Plaintiff originally instituted this

action on May 24, 1974, by filing e Com-

plaint consisting of Two Counts.

Jurisdiction in the original Complaint

waS predicated cn the fact that plaintiff

was @ lawful resident of the City of Tulsa

and was deprived of his right to be pro-

tected from unreasonatle searches and sei-

zures under the 4th Amendment; that his

Constitutionally protected rights of pri-

vacy were invaded; and that his property

weS taxen without due process of law guar-

anteed by the 14th Amendment.

BEST COPY AVAILABLE

Plaintiff further alleges that the City

of Tulsa failed to compensate him for

the public use of his property in accord-

ance with Article II, Sec. 24 of the Okla-

noma Constitution.

The alleged defective warrant was

for marijuana. It is alleged that said

warrant was executed by certain police

officers of the City of Tulsa (unnamed

in the petition and not parties to this

litigation). It is further alleged that

plaintiff was taken into custody and after

posting a proper bond returned to his

home and discovered that his home had

been ransacked and that certain items of

personal property consisting of jewelry,

old coins, novelties and certain series

of children's books authored by plaintiff

nad been taken from the premises and have

not been returned nor has plaintiff been

compensated as required by Article II,

Section 24 of the Oklahoma Constitution.

Plaintiff seeks damages in the sum of

$33,000.00.Plaintiff alleges that the def-

endant was motivated with the intent to

harm and harass the plaintiff for having

exercised his right of free speech, as

guaranteed by the 1st Amendment, and for

exercising his right to nave people peace-

ably assemble as guaranteed by the lst

Amendment, and, therefore, he Seeks punitive

dJamages in the amount of $1,000,000.00.

The Second Count of Action is for in-

vasion of privacy and plaintiff seeks

damages in the sum of 1,000,000.00,

By Amended Complaint filed May 20,

1974, plaintiff alleges jurisdiction by

virtue of 42 U.S.C.A., Section 1943.

On July 17, 1974, the defendant filed

its Motion to Dismiss, with brief in sup-

port thereof.

At the outset, this Court will note

thet it is not dealing with a pro Se com-

plaint, but one filed by a member of the

Bar of this State.

The Court notes that there is no 42

U.S.C.A., Section 1943. Plaintiff admits

this fect in his brief and states that

Section 1943 was a typographical mistake

and that he should be allowed to amend to

allege jurisdiction pursuant to 42 U.S.C.A.

Section 1983.

Defendant admits in his brief that it

is established that municipal corporations

are not persons as have been legiSlatively

defined for the purposes of civil rights

action. Moor v. County of Alameda, et al.

(1973); 411 U.S. 693; Monroe v. Pape (1961)

365 U.S. 167.

Defendant concedes that the Moor v.

County of Alameda cases, Supra, does

effectively preclude this plaintiff from

any cause of action against the City of

Tulsa under the provisions of 42 U.S.C.A.

1983, but requests the Court to entertain

the matter pursuant to pendent jurisdiction

and decide the defendant was in violation

of Article II, Section 24 of the Oklahoma

Constitution. The Court notes that the

Article relied on by plaintiff is the Art-

icle and Section conferring and delineating

the statutory procedure for acquisition of

property by eminent domain.

Plaintiff, in nis trief asserts a right

to amend his complaint to include the pro-

visions of 42 U.S.C.A., Section 1988,

Plaintiff, in nis brief, asserts constit-

utional] questions are involved in the pre-

Sent litigation.

The Court has carefully considered

the entire file in this matter, and having

perused and considered the pleadings in a

light most favorable to the plaintiff

finds that no cause of action has been

Stated by the plaintiff egainst the def-

endant and that the City of Tulsa, a mun-

icipal corporation, iS not a person as

has been legislatively defined for the

purposes of the civil rights actions.

IT IS, THEREFORE, ORDERED that the

Motion to Dismiss filed by the defendant be

and the same is hereby Sustained.

IT IS FURTHER ORDERED that the com-

rlaint and cause of action be and the

Same are hereby dismissed.

ENTERED this 3rd day of September,1974.

Cie... at

~ GHIEF UNITED STATES DISTRICT JUDGE

JANUARY TERM - February 7, 1975

Befure Honorable Oliver Seth and Hconoratie

Robert. H. McWilliams and Honorabie James

e£. Berrett, Circuit Judges

CHARLES L. HAM, )

Plaintiff-Appellant, ) ,.,

VS. No. 74-1621

THS CITY OF TULSA, iain aan

A Municipal Corporation, Clerk, \'. S$. Court of

Appeals, Penth Ctrevit

Defendant-Appellee. 7 i, y bt)

Deputy Clerk

Upon consideration of the record and

files in tne above captioned case, it is

ordered tnat the judgment of the United

States District Court for the District of

Oklahoma dismissing appellent's suit under

the Civil Rights Act, 42 U.S.C. Section

1982, against the City of Tulse, Oklahoma

is affirmed: Moor v. County of Alamede,

411 U.S. 693, 429733 Monroe v. Pape, 365

U.S. 167 (1961

The Clerk of this Court shall certify

a copy of this order to the United States

District Court for the District of Okila-

noma as and for the mandate.

—_—* Lae L. HOSChER, Chief Deputy Clerk