# Petition — Sinclair v. Hanover Insurance

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1073

## Text

| 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0804%3A1. Public record. Not legal advice.