# Petition — Ham v. City of Tulsa > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0392%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 828 ## Text “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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0392%3A1. Public record. Not legal advice.