Petition — Sinclair v. Hanover Insurance

| Supreme Cort, U a

| FILFED

| OCT 27 3975

IN THE.

ICHAEL RODAK, JR. CLERK |

Supreme Court of the United States

October Term, 1976

e -----P = 58 4 |

UNITED STATES OF AMERICA for the Use of JAMES

SINCLAIR, and JAMES SINCLAIR,

Petitioners,

VS.

THE HANOVER INSURANCE COMPANY, a corporation;

GAYLORD L. CAMPBELL; TERRY WALTER; and

THOMAS CHARLES KUPFERER, JR.,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

JAMES SINCLAIR,

521 Park Avenue,

Detroit, Mich

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

Citations to Opinions Below .................--.......---++ 2

BE. idea dl acciiasianiaiidhnngiinsimsitnainiiiaintddienents 2

Questions Presented for Review .....................-------+- 2

Statement of the Facts of the Case ........................ 2

Reasons for Granting the Writ ............2..02........--- 5

I aaa alisha citacsicine sidan 5

I i acia ere iialatincetid aie niall 6

EE EES aR ear 7

fg ag i ERE RAN ei ce Ere ER SR OO te 9

APPENDIX

PEEL soicchihalinncanipsiidiahadiidiiniodatenibdinanieansthiniedmnontaii A-1

Re I i ecscsisssieninsicicteciininiiaeninnntisedlineiishnaeaal A-1

Memorandum, Opinion of the Ninth Circuit Court

Se IIE <pliceslodiekisdivscileatncnatericdidniscisetnestnssiibatiaticicaliatibist A-2

SN iy, CPI cess cocetisccsbacesecicueintenesciionanons A-6

Order Dismissing Complaint as to Defendant The

Hanover Insurance Company .............................-+- A-7

ii.

TABLE OF AUTHORITIES CITED

Cases Page

Bailey v. Warner, 118 Fed. 395 (1902) ................ 6

Bivens v. Six Agents, 456 F.2d 1339 (1972) .......... 8

Colpoys v. Foreman, 163 F.2d 908 (1947) .......... 6

County of Hawaii v. Martin, 33 Haw. 677 .......... 6

Covell v. Heyman, 111 U.S. 176 (1884) ............ s 2

Elyea v. Williamson, 59 Ga. 432 (1876) ................ 7

Gwin v. Barton, 6 How. 7 (47 U.S. 7) (1848) .... 5

Hagood v. Blythe, 37 Fed. 249 (1889) ................ 6

fe, 8. Ff SS ene 6

Hinds v. Keith, 57 Fed. 10 (1893) ~.....00000002.... 6

Holden v. Williams, 75 Fed. 798 (D.C. Alaska

EEE: cestitiesinusneniesitibienpaco daaiicliseiccieneldsiieilinimibaidbaialionsnmmidn 7

Lammon v. Feusier, 111 U.S. 17 (1884) ........ 1,5, 9

Robertson v. Sichel, 127 U.S. 507 (1888) ..1, 2, 7, 9

Sen. Hartke v. FAA, 369 F.Supp. 741 ............-....... 7

United States v. Davidson, 25 Fed. Cases 771, Case

Be I ccttatiteciccadnattiicdeetensineteneenseeiesien 2

Miscellaneous

1 Opinions of Attorney General, p. 92 ................ 6

Rules

Federal Rules of Civil Procedure, Rule 12(b)(6)

Statutes Page

Illinois Statutes (1973) Chap. 38, Sec. 84 ............ 7

BO a ena 6

United States Code, Title 28, Sec. 1254(1) .......... 2

United States Code, Title 28, Sec. 1352 .................. 3

United States Constitution, Fourth Amendment .... 3

United States Constitution, Fifth Amendment ........ 3

Supreme Court of the United States

October Term, i976

«Ye

UNITE! STATES OF AMERICA for the Use of JAMES

SINCLAIR, and JAMES SINCLAIR,

Petitioners,

vs.

THE HANOVER INSURANCE COMPANY, a corporation;

GAYLORD L. CAMPBELL; TERRY WALTER; and

THOMAS CHARLES KUPFERER, JR.,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

James Sinclair prays that a writ of certiorari issue

to review the judgment of the United States Court

of Appeals for the Ninth Circuit in the above entitled

case for the reason that the judgment is in direct conflict

with decisions in the Fifth, Eighth, and District of

Columbia Circuits; and is in direct conflict with the

decisions of this Court in Lammon v. Feusier, 111

U.S. 17; Covell v. Heyman, 111 U.S. 176, and Robert-

son v. Sichel, 127 U.S. 507.

_

Citations to Opinions Below.

The opinions below are unreported and are printed

infra in the Appendix, the District Court not writing

an opinion as such but its Order Dismissing Complaint

did state the court’s reasoning.

Jurisdiction.

The judgment of the Court of Appeals was entered

May 7, 1976, and the petition for rehearing and re-

hearing in banc was filed May 21, 1976, and was

denied by order filed August 13, 1976. The jurisdiction

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

Questions Presented for Review.

May a Court of Appeals without citation of any

authority ignore the universal body of the law of other

Circuits and the Supreme Court to decide that an

injured individual has no right to sue on the official

bond of a U.S. Marshal?

Is a Marshal still liable for the official acts of

his deputies under Robertson v. Sichel, 127 U.S. 507,

515?

Statement of the Facts of the Case.

Under common law authority of United States v.

Davidson, 25 Fed. Cases 771, Case # 14,921 (1864),

petitioner brought this action for damages in the name

of the United States for his use, on the official bond

written by respondent Hanover Insurance Company

for respondent U.S. Marshal G. L. Campbell, alleging

illegal seizure, search, and abuse by the marshal’s depu-

_

ties who were also sued, and alleging the marshal’s

ratification, encouragement, and negligence.

Jurisdiction was founded on multiple bases: 28

U.S.C. Sec. 1352 (official bond); the Fourth Amend-

ment to the Constitution of the United States; diversity

of citizenship with the matter in controversy exceeding

the value of $50,000.00; pendent jurisdiction; and fur-

ther federal questions involving the Fifth Amendment

to the Constitution of the United States, and Federal

Rules of Criminal Procedure 5.

The deputies admitted that the petitioner was

searched and that no contraband or weapons were

found, and that petitioner was held for a while and

later released without any charges being brought. The

deputies admitted that the petitioner was accosted at

an airport while petitioner was leaving a gate after

all parties knew the plane had left.

The District Judge dismissed the Marshal from the

action under F.R.C.P. 12(b)(6), retaining the deputies

and the bonding company as defendants (no details

for this dismissal were given; the Court of Appeals

found the complaint stated a claim for relief against

the Marshal, and reversed).

The bonding company Hanover Insurance Co. moved

to dismiss before filing an Answer. The District Judge

granted the motion on the grounds that the surety

could not be liable if the principal were not liable.

The Court of Appeals affirmed the dismissal of Hanover

even though they reversed as to the Marshal; the

entities

court held that an individual had no right to sue

on the bond; petition for rehearing and rehearing in

banc citing the authorities infra was denied.

The deputies’ second motion for summary judgment

was granted. Petitioner appealed the resulting District

Court judgment dismissing the action. The Court of

Appeals reversed the judgment which had been in

favor of the deputies, holding that there were triable

facts and stated that the allegations of abuse were

sufficient to state a claim upon which relief can be

granted.

Therefore the petitioner applies to this Court to

review the judgment of the Court of Appeals insofar

as it affirmed the dismissal of the Hanover Insurance

Co.

=

REASONS FOR GRANTING THE WRIT.

Petitioner respectfully submits that the judgment of

the Ninth Circuit Court of Appeals that Hanover can

not be liable to an individual on the bond of the

Marshal conflicts with the decisions in the Fifth, Eighth,

and District of Columbia Circuits, the decisions of

this Court, and the bond itself.

The first paragraph of the Memorandum of the

Court of Appeals states that Hanover made a “promise

to indemnify” only the United States for the actions

of the Marshal or deputies, and that therefore the

individual James Sinclair has no rights to sue on the

bond for his injuries.

It is important to note that the Court of Appeals

neither cited authority, nor distinguished the bond re-

covery cases cited to it. Nor will respondents be able

to do so in reply to this Petition. There is apparently

no case saying an individual as such can not recover

on the bond of a Marshal.

This Court in Lammon vy. Feusier, 111 U.S. 17

(1884) affirmed a Nevada federal court judgment that

the sureties on the marshal’s bond were liable, not

to the government, but to private party Henry Feusier.

At page 19 is noted that the bond is nominally to

the government, to indemnify the injured party. Covell

v. Heyman, 111 U.S. 176 (1884), on page 181 refers

to “A third person” having a “remedy for damages”

“against his sureties” (of the marshal). Gwin v. Barton,

6 How. 7 (47 U.S. 7) (1848), states on page 10

that an individual is to “proceed regularly by action”

if he seeks “to charge the sureties for the default

of the marshal”.

— Ss

The District of Columbia Circuit affirmed in Colpoys

v. Foreman, 163 F.2d 908 (1947), noting on page

909 that:

“The plaintiff recovered judgment for $6,500. The

defendants, the marshal’s executors and surety,

have appealed.” (Emphasis added.) -

The Eighth Circuit held the surety liable for $600

damages to an individual in Bailey v. Warner, 118

Fed. 395, 396 (1902).

The Fifth Circuit in Hinds v. Keith, 57 Fed. 10

(1893), affirmed a judgment for Keith against sureties

Sheats, Green, Peevy, and Harrison (p. 12).

Hagood v. Blythe, 37 Fed. 249, 252 (1889) states:

“Le: plaintiff have judgment against each surety

in the sum of $173.43.”

These bonds were provided for by the First Congress

(1 Stat. 87), since it was known that marshals were

likely to be judgment-proof and that security was re-

quired for both the government and for its individual

citizens (1 Op. Atty. Gen. 92). The principle goes

back at least to 1662 in English statutes. Also see

County of Hawaii v. Martin, 33 Haw. 677, 685; Hill

v. Thomas, 70 Nev. 389, 395-396. At present petitioner

does not even have security that he can recover his

costs on the appeal he has won, marshal’s wages not

being reachable by execution!

The very bond put forward into court by Hanover

stated, as also alleged in the Complaint, “A person

. May sue thereon, in his own name”.

There is a further importance to this case warranting

grant of certiorari. The bond has a total value of

some $3,000,000.00 for abuse of airport searches for

-

93 marshals, and the statute of limitations is open

until 1978. This abuse is so prevalent that the Illinois

legislature has enacted an airport exclusionary rule!

Illinois Statutes, ch. 38, sec. 84 (1973). Also as to

abuse, Sen. Hartke v. FAA, 369 F.Supp. 741.

It is worthy of this Court’s attention to make sure

that persons injured by marshals in person or property

can recover on the bond as they were intended so

to recover.

There is a final point for review. The Court of

Appeals stated that the “contention is without merit”

that the Marshal is liable for the acts of his deputies.

(footnote, A-4, infra).

However, Robertson v. Sichel, 127 U.S. 507, 515

(1888) states:

“a superior officer may be held liable for... .

the act of a deputy performed in the ordinary

line of his official duty as prescribed by law.”

(Emphasis added.)

Holden v. Williams, 75 Fed. 798, 800 (D.C. Alaska

1896) states re U.S. marshals:

“The rule that the superior officer is liable for

acts of his deputy done under color of his office

is too well settled to need discussion.

The demurrer is overruled.”

Elyea v. Williamson, 59 Ga. 432 (1876) holds

that an injured party can not sue a deputy U.S. marshal

because under common law he can sue only the marshal

himself for the acts of the deputy!

The Ninth Circuit would encourage the employment

of irresponsible deputies. However, the original statutory

scheme was that of inter-liability tending to secure

responsible officers: the surety was responsible for both

the marshal and the deputy, and was subrogated against

them. The marshal being principal on the bond was

thereby liable for the default of the deputy. The marshal

required the deputy to furnish a bond to indemnify

the marshal, as the marshal was liable for the deputy

over and above the amount of the marshal’s own bond.

Irresponsible persons would find it hard to secure bonds,

and the public would thus be protected against them

to begin with.

It is worthy of this Court’s writ of certiorari that

responsibility is encouraged, in this day where products

and government are too often shoddy. As the Second

Circuit said on remand (Bivens v. Six Agents, 456

F.2d 1339, 1346 (1972)):

“The policy underlying this common law rule

is equally applicable to federal police officers.

We believe the long line of cases culminating

in Weeks v. United States, 232 U.S. 383, 34

S.Ct. 341, 58 L.Ed. 652 (1914), and Mapp

v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961), indicates a woeful laxity on the

part of some police officers, state and federal,

in complying with constitutional standards, and

this laxity would only be encouraged by a grant

of immunity. We do not agree with the reasoning

of cases that support a contrary conclusion. It

would be a sorry state of affairs if an officer

had the ‘discretion’ to enter a dwelling at 6:30

A.M., without a warrant or probable cause, and

make an arrest by employing unreasonable force.”

—

Conclusion.

Because of the manifest error of the Court of Ap-

peals, the lack of authority to contradict petitioner’s

argument, and the importance of setting right the Mar-

shal system, the petitioner contends that certiorari

should be granted to resolve the conflict of the Ninth

Circuit opinion, probably with summary reversal, or

remand to consider the decisions such as Lammon

v. Feusier, 111 U.S. 17, and Robertson v. Sichel,

127 U.S. 507, 515.

October, 1976.

Respectfully submitted,

JAMES SINCLAIR,

Petitioner Pro Se.

APPENDIX

APPENDIX.

Judgment.

United States Court of Appeals, for the Ninth Circuit.

United States of America for the Use of James

Sinclair, and James Sinclair, Plaintiffs-Appeliants, v.

The Hanover Insurance Company, a corporation; Gay-

lord L. Campbell; Terry Walter; and Thomas Charles

Kupferer, Jr., Defendants-Appellees. No. 74-2151, DC

#73-1131-R-Civil.

Appeal from the United States District Court for

the Central District of California.

This Cause came on to be heard on the Transcript

of the Record from the United States District Court

for the Central District of California, and was duly

submitted.

On Consideration Whereof, It is now here ordered

and adjudged by this Court, that the judgment of

the said District Court in this Cause be, and hereby

is affirmed in favor of Hanover. Judgment in favor

of Gaylord C. Campbell, Terry Walter and Thomas

Charles Kupferer, Jr., is reversed and the case is re-

manded for further proceedings.

Filed and entered May 7, 1976.

Order.

In the United States Court of Appeals, for the Ninth

Circuit.

United States of America for the Use of James

Sinclair, and James Sinclair, Plaintiffs-Appellants, vs.

The Hanover Insurance Company, a corporation; Gay-

lord L. Campbell; Terry Walter; and Thomas Charles

Kupferer, Jr., Defendants-Appellees. No. 74-2151.

—_—y =

Filed: Aug. 13, 1976.

Before: Merrill, Hufstedler and Kennedy, Circuit

Judges.

The panel as constituted in the above case has

voted to deny appellants’ petition for rehearing. Judges

Hufstedler and Kennedy voted to reject the suggestion

for a rehearing in banc and Judge Merrill recommended

rejection. The full court has been advised of the sug-

gestion for an in banc hearing, and no judge of the

court has requested a vote on the suggestion for rehear-

ing in banc. Fed.R.App.P. 35(b). The petition for

rehearing is denied and the suggestion for a rehearing

in banc is rejected.

Appellees’ tardily tendered petition for rehearing or

clarification may be filed. The petition is denied. Judge

Kennedy would grant rehearing.

Memorandum.

United States Court of Appeals, for the Ninth Circuit.

United States of America for the Use of James

Sinclair, and James Sinclair, Plaintiffs-Appellants, vs.

The Hanover Insurance Company, a corporation; Gay-

lord L. Campbell; Terry Walter; and Thomas Charles

Kupferer, Jr., Defendants-Appellees. No. 74-2151.

| May 7, 1976]

On Appeal from the United States District Court

for the Central District of California.

Before: MERRILL, HUFSTEDLER and KENNEDY,

Circuit Judges.

Judgment dismissing the action against Hanover In-

surance Company is affirmed. There is no showing

—

that the United States has suffered loss by virtue of

actions of the Marshal or his deputies. Nor can such

loss result from this action, where the United States

is not named as defendant and judgment against it

is not sought. Thus nothing has occurred (or could

occur by virtue of this action) that would call upon

Hanover to perform its promise to indemnify.

Judgment dismissing the action against Marshal

Campbell and summary judgment in favor of his depu-

ties were, in Our view, premature.

As to the Marshal, while he did not himself play

any part in the detention or search, the complaint

does charge him with having occasioned such conduct

through advising and encouraging his deputies to behave

in such a fashion and disregard the rights of those

with whom they have to deal. Appraising the sufficiency

of the complaint in accordance with the standard set

forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),

we think that it alleges sufficient personal involvement

on the part of the Marshal so as to state a claim

for relief.

Further, allegations of the complaint to the effect

that the Marshal negligently selected, trained and super-

vised his deputy would appear sufficient to withstand

motion to dismiss under Navarette v. Procunier, ........

_ Sane (9th Cir. 1976).

We have only examined the allegations respecting

Campbell in the context of a motion to dismiss. The

extent to which other materials in the record would,

if taken into consideration, serve to support summary

judgment is a question we cannot anticipate at this

time. The order granting motion to dismiss states that

it was based on the “pleadings, the memoranda filed

ee

by the parties, and the oral argument at the time

of the hearing.”

As to the action against the deputies, any justifica-

tion for their detention and search of Sinclair on

the grounds that it was an airport search ended when

it became apparent that Sinclair did not intend to

board a plane at that boarding area. United States

v. Moore, 483 F.2d 1361, 1363 (9th Cir. 1973);

United States v. Davis, 482 F.2d 893 (9th Cir. 1973).

We accept, arguendo, that founded suspicion would

justify a brief detention and patdown under Terry

v. Ohio, 392 U.S. 1 (1968). However, the detention

that followed could only be justified as an arrest on

traditional showing of probable cause to suppose Sinclair

guilty of crime; and the search that accompanied it

could only be justified as one incident to arrest and

subject to the limitations that apply to such searches,

see United States v. Rothman, 492 F.2d 1260, 1265-

66 (9th Cir. 1973), United States v. Mehciz, 437

F.2d 145, 146-48 (9th Cir. 1971); or on a showing

of probable cause to suppose that the search would

be productive of evidence of crime which could well

be lost if the search were to await warrant. United

States v. Smith, 503 F.2d 1037, 1040-41 (9th Cir.

10n appeal Sinclair contends that without regard to the

Marshal’s own acts of commission or omission, he is liable

for the acts of his deputies under the principle of respondeat

superior. This contention is without merit. While the doctrine

imposes liability on an employer (or master) for the wrongful

acts of his agent (or servant), it does not (in absence of

a statute to the contrary, Hesselgesser v. Reilly, 440 F.2d

901 (9th Cir. 1971)), impose liability on a public officer

for the wrongful acts of his subordinates. Robertson v. Sichel,

127 U.S. 507 (1888); Lander v. Morton, 518 F.2d 1084, 1087

(D.C. Cir. 1975); Boettger v. Moore, 483 F.2d 86 (9th Cir.

1973). We reject appellant’s contention that 28 U.S.C. §564

is designed to impose such liability on the Marshal; that pro-

vision relates solely to the scope of the coverage of the bond.

—

1974), cert. denied 419 U.S. 1124. On this record

it cannot be said that such justification has been estab-

lished as matter of law. The facts as to what actually

occurred at the boarding area and after Sinclair left

the area were controverted in the affidavits and must

be resolved in fact-finding proceedings before judgment

as to the deputies’ justification may be rendered.

Moreover, in our view the allegations with respect

to the deputies’ threats were sufficient to state a claim

of intentional infliction of emotional distress under

California law. State Rubbish Collectors Assn. v.

Siliznoff, 38 Cal.2d 330, 240 P.2d 282 (1952); Alcorn

v. Anbro Engineering, Inc., 2 Cal.3d 493, 468 P.2d

216, 86 Cal.Rptr. 88 (1970).

As to standards for judging immunity, both of Mar-

shal Campbell himself and of his deputies, further light

has been cast by recent decisions. The deputies cannot

be held liable, even for an unconstitutional search

and detention, if they “reasonably believed in good

faith that [the detention and search were] constitutional

* * *” Pierson v. Ray, 386 U.S. 547, 557 (1967);

Burgwin v. Mattson, 522 F.2d 1213 (9th Cir. 1975).

Judgment under this inquiry must await resolution of

the factual issues presented in the affidavits.

The standards for judging immunity of Marshal

Campbell are those set forth in Scheuer v. Rhodes,

416 U.S. 232 (1974), and Mark v. Groff, 521 F.2d

1376 (9th Cir. 1975). As was the case with the

deputies, factual questions with respect to Campbell’s

activities must be resolved before the question of his

immunity can be decided.

In all respects further proceedings are necessary.

As to some issues, amplification of the record may

—_—Y =

suffice to eliminate need for trial. As to all remaining

issues, trial would appear to be necessary.

Judgment in favor of Hanover is affirmed.

Judgment in favor of Gaylord C. Campbell, Terry

Walter and Thomas Charles Kupferer, Jr., is reversed

and the case is remanded for further proceedings.

KENNEDY, J. Concurring:

I agree that the further development of the facts

in this case is warranted. However, I would not limit

the use of the airport search rationale to those persons

intending to board airplanes. Here it appears that after

a plane departed, Sinclair passed through the magneto-

meter at a boarding area, set off a positive reading,

and then attempted to leave the airport. I consider

this conduct potentially dangerous for two reasons:

(1) he may have been testing the sensitivity of the

magnetomeier in preparation for a future attempt to

carry a weapon on board an airplane; (2) he may

have been carrying a weapon or device which he intend-

ed to use in the terminal or on a different flight.

In a proper case, these possibilities might well support

a finding that the search was justified under traditional

doctrines, in light of exigent circumstances.

Airport searches are also justified under a theory

of consent necessarily given as a condition of passing

through a checkpoint. I would hold that such consent

cannot be withdrawn after a person has alerted the

detection device. The efficacy of such systems would

be seriously undermined if potential terrorists got a

free bite at avoiding detection. In our troubled times,

a person who goes into a crowded airport and sets

off a metal detector should not complain if the author-

ities are less than courteous.

ee

—y

Order Dismissing Complaint as to Defendant

The Hanover Insurance Company.

United States District Court, Central District of Cali-

fornia.

James Sinclair, Plaintiff, vs. The Hanover Insurance

Company, a corporation; Terry Walter; and Thomas

Charles Kupferer, Jr., Defendants. No. 73-1131-R.

FILED: Feb. 21, 1974.

Defendant The Hanover Insurance Company has

moved for dismissal of the cause of action against

it. The Court having heard the arguments of the parties

and having considered the matter; the matter having

been submitted and plaintiff having filed his Supple-

mental Opposition To Motion of Hanover for Dismissal

Or For Summary Judgment;

IT IS ORDERED the motion is granted and the

complaint is dismissed as to defendant Hanover Insur-

ance Company. An indemnitor’s liability is based upon

the liability of the principal. The Court having deter-

mined there can be no liability visited upon the prin-

cipal—defendant Gaylord Campbell having been hereto-

fore dismissed—no liability can be visited upon the

indemnitor. The bond here indemnifies Campbell’s re-

sponsibility—either direct or vicarious—not the respon-

sibility of deputy United States Marshals.

Dated: February 21, 1974.

/s/ Manuel L. Real

MANUEL L. REAL

UNITED STATES DISTRICT JUDGE