Petition — Surles v. Wirth

ir Supreme Court, U. S$.

FILED |

DEC 20 i977

IN THE

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OctToBer Term, 1977

aa 72°887

R. R. SURLES, Orricer, State Highway PatTroL,

PETITIONER,

versus

WILLIAM JOHN WIRTH, Responpent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

DANIEL R. McLEOD,

Attorney General,

State of South Carolina,

EMMET H. CLAIR,

Senior Assistant Attorney General,

Of Counsel,

RICBFARD D. BYBEE,

Staff Attorney,

Of Counsel,

Post Office Box 11549,

Columbia, South Carolina 29211,

Attorneys for Petitioner.

December 19, 1977.

The R. L. Bryan Company, Lega! Printers, Columbie, S. C.

Pace

ser ree rE ik bs oy oad va 1

rr a a aces aoe SC ee yas 2

Questions Presented eee eee. en ad ee ae

Constitutional Provisions Involved ................ 3

Statutory Provisions Involved................ yt ae

ee aes 5

Reasons for Granting the Writ:

I. The decision of the Court of Appeals for the

Fourth Circuit is in conflict with the principles

of several decisions of the United States Supreme

Court and is in direct conflict with the holding of

at least one Supreme Court decision.......... 6

II. The Court of Appeals decision for the Fourth

Circuit conflicts with principles established by the

Court of Appeals of the Fifth, Sixth, and Seventh

A te aie yen k seeds 9

III. The decision of the Court of Appeals for the

Fourth Circuit is in direct conflict with various

decisions of the district courts and the issues to

be resolved are important to the public at large 11

IV. The decision of the Court of a for the

Fourth Circuit is erroneous ........ . 12

II 8 Dd ae a aa ~ . 8

(i)

CITATIONS

Cases: Pace

Alexander v. Emerson, 489 F. 2d 285 (5th Cir. 1973) 10, 13

_ Aveo Corp. v. Aero Lodge No. 735, 390 US 557, 20 L. Ed.

2d 126, 88 S. Ct. 1235 (1968) sssi<i‘CS;:SS!!COd

Biddiager v. Commissioner of Police, 245 US 128, 62

L. Ed. 198, 38 S.Ct. 41 (1917). ................ 6, 12

Crawford v. Lydick, 179 F. “7,4 214 (W. D. Mich.

1959, Aff’d 280 F. 2d 426 (6th Cir. 1960) 10, 13

Croy v. Skinner, 470 F. Supp 117 (D.C. Ga. 1976)... ‘14

Douglas v. Jeannette, 319 US 157, 87 L. Ed. 106, 63

S. Ct. 877 (1443) 8

Frisbie vy. - gael gait 519, 96 L. Ed. 541, 72 &@

509 (1952) _.. . 13

Hamilton v. Chaffin, 506 F. 2d 904 (5th Cir. 1975)... =. «+4

Hines v. Guthrie, 341 F. Supp. 594 (E. D. Va. 1972) 11, 13

Johnson v. Buie, 312 F. Supp. 1349 (W. D. Mo. 1970) 11, 13

Ker v. Illinois, 119 US 436, 30 L. Bd. 421, 7 S. Ct. 225

I cos cec gd: cated vasiecscasteueds 13

Land v. Dollar, 330 US 731, 91 L. Ed. 1209, 67 S. Ct. 62

(1947) 2

Pettibone v. Nichols, 203 US 192, 51 L. Ed. 148, 27 S. Ct.

111 (1906) 7, 13

Ouzts v. Maryland National Ins. Co., 470 F. 2d 790, reh.

505 F. 2d 547 (9th Cir. 1972) 14

( iii )

CITATIONS—Continued

Cases: Pace

Saunders v. Cahill, 359 F. Supp. 79 (D.C. Til. 1973) ... 14

Smith v. State of Idaho, 373 F. 2d 149 (9th Cir. 1967). 10

Taylor v. Nichols, 409 F. Supp. 927 (D. C. Kan. 1976) .. 14

United States v. Constantine, 296 US 287, 80 L. Ed. 233,

5 oS F) ee ee 11

United States v. General Motors Corp., 323 US 373, 89

L. Ed. 311, 65 S. Ct. 357 (1945) ................... 2

United States v. Lohman, 228 F. 2d 824 (7th Cir. 1955) 9, 10

Constitutional Provisions:

United States Constitution: Article IV, Section 2,

Clause 2 2, 3, 6, 9, 12

Statutes:

Title 18 USC § 3182 . +o > «os one

Title 28 USC § 1254(1) i+$aeneeee ose

Title 42 USC § 1983 een | passim

Georgia Code Annotated § 44411 .........—-.:—-_sr 34, 8B

(iv)

IN THE

Supreme Court of the United States

Ocroser Term, 1977

R. R. SURLES, Orricer, State Highway Parrot,

PETITIONER,

versus

WILLIAM JOHN WIRTH, Responvent

. PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

The petitioners respectfully pray that a writ of cer-

tiorari be issued to review the judgment and opinion of the

United States Court of Appeals for the Fourth Cireuit en-

tered in this proceeding on September 22, 1977.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto.

2 SURLES, PETITIONER, v. WIRTH, RESPONDENT

JURISDICTION

The judgment of the Court of Appeals for the Fourth

Circuit was entered on September 22, 1977. This Court’s

jurisdiction is invoked under 28 USC § 1254(1). Although

the Court of Appeals has ordered the case remanded to the

District Court and the judgment is not final the petitioner

respectfully submits that it is appropriate for review be-

cause it involves an issue which is fundamental to the fur-

ther conduct of the case. The validity of the decision of the

court below depends on the scope and meaning of Article

IV, Section 2, Clause 2 of the United States Constitution

and the federal laws enacted thereunder. See Land v. Dol-

lar, 330 U. S. 931, 91 L. Ed. 1209, 1214, 67 S. Ct. 62; United

States v. General Motors Corp., 323 U. S. 373, 377, 89 L.

Ed. 311, 318, 65 S. Ct. 357.

QUESTIONS PRESENTED

I

Whether Article IV, Section 2, Clause 2 of the United

States Constitution secures to the respondent any rights,

privileges or immunities which are actionable under 42

USC § 1983 against the petitioner Surles?

II

Whether 18 USC § 3182 secures to the respondent any

rights, privileges or immunities which are actionable under

42 USC § 1983 against the petitioner Surles?

III

Whether Georgia Code Annotated § 44-411 secures to

the respondent any rights, privileges or immunities which

are actionable under 42 USC § 1983 against the petitioner

Surles?

SURLES, PETITIONER, v. WIRTH, RESPONDENT 3

IV

Whether a canse of action arises under 42 USC § 1983

against the petitioner Surles where the respondent has

allegedly been removed from a state without extradition

proceedings and then pleads guilty in the demanding state?

y

V

Whether the petitioner is the proper defendant in an

action pursuant to 42 USC § 1983 for arresting and remov-

ing the respondent from the State of Georgia without extra-

dition proceedings?

CONSTITUTIONAL PROVISIONS INVOLVED

Article IV, Section 2, Clause 2 of the United States

Constitution provides:

“A person charged in any State with Treason, Felony

or other Crime, who shall flee from Justice, and be

found in another State, shall on demand of the execu-

tive Authority of the State from which he fled, be de-

livered up, to be removed to the State having Jurisdic-

tion of the Crime.”

STATUTORY PROVISIONS INVOLVED

18 USC § 3182 provides:

“Whenever the executive authority of any State or

Territory demands any person as a fugitive from jus-

tice, of the executive authority of any State, District

or Territory to which such person has fled, and pro-

duces a copy of an indictment found or an affidavit

made before a magistrate of any State or Territory,

charging the person demanded with having committed

treason, felony, or other crime, certified as authentic

by the governor or chief magistrate of the State or Ter-

ritory from whence the person so charged has fled, the

executive authority of the State, District or Territory

to which such person has fled shall cause him to be ar-

rested and secured, and notify the executive authority

SURLES, PETITIONER, v. WIRTH, RESPONDENT

making such demand, or the agent of such authority

appointed to receive the fugitive, and shall cause the

fugitive to be delivered to such agent when he shall ap-

pear. If no such agent appears within thirty days from

the time of the arrest, the prisoner may be discharged.”

42 USC § 1983 provides:

“Every person who, under color of any statute,

ordinance, regulation, custom or usage of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights

secured by the Constitution and law, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress.”

Section 44-411 of Georgia Code Annotated provides:

“No person arrested upon such warrant shall be

delivered over to the agent whom the executive author-

ity demanding him shall have appointed to receive him

unless he shall first be taken forthwith before a judge

of a court of record in this State, who shall inform him

of the demand made for his surrender and of the crime

with which he is charged, and that he has the right to

demand and procure legal counsel; and if the prisoner

or his counsel shall state that he or they desire to test

the legality of his arrest, the judge of such court of ree-

ord shall fix a reasonable time to be allowed him within

which to apply for a writ of habeas corpus. When such

writ is applied for, notice therefor, and of the time and

place of hearing thereon, shall be given to the prosecut-

ing officer of the county in which the arrest is made

and in which the accused is in custody, and to the said

agent of the demanding state.”

SURLES, PETITIONER, v. WIRTH, RESPONDENT 5

STATEMENT OF THE CASE

The petitioner is R. R. Surles of the South Carolina

State Highway Patrol. In the district court he was the de-

fendant and in the Court of Appeals, he was the appellee.

He was sued by the respondent, William John Wirth, in a

civil rights action for damages pursuant to 42 USC § 1983

thereby raising federal questions of law. The respondent

alleged that he was detained in Georgia by Georgia law en-

forcement authorities as a result of a radio call from South

Carolina authorities and that he was taken into custody by

the petitioner Surles and returned to South Carolina with-

out extradition proceedings. The respondent subsequently

pled guilty to the charge of armed robbery and was sen-

tenced. The district court, swa sponte, in an order filed

April 1, 1976, dismissed the complaint holding that the pur-

pose of the extradition statutes was to benefit the states,

rather than an accused, and that an action under 42 USC

§ 1983 could not be maintained against the petitioner for

forcibly taking the respondent into custody and bringing

him into South Carolina without extradition proceedings.

The United States Court of Appeals for the Fourih

Cireuit in an opinion decided on September 22, 1977, re-

versed the district court decision and remanded the ease for

further proceedings.

In this Court the petitioner seeks review of the Court

of Appeals determination that the respondent possessed

rights, privileges or immunities secured to him by the Con-

stitution and laws of the United States which are actionable

under 42 USC § 1983 against the petitioner. The petitioner

contends that the arrest and removal of the respondent

from Georgia to South Carolina does not create a cause of

action pursuant to 42 USC § 1983. The petitioner also seeks

review of the Court of Appeals decision that violations of

6 SURLES, PETITIONER, v. WIRTH, RESPONDENT

the laws of Georgia give rise to a civil rights action pursu-

ant to 42 USC § 1983.

REASONS FOR GRANTING THE WRIT

I. The decision of the Court of Appeals for the Fourth

Circuit is in conflict with the principles of several decisions

of the United States Supreme Court and is in direct conflict

with the holding of at least one Supreme Court decision.

The Court of Appeals in this case has found that Ar-

ticle IV, Section 2, Clause 2 and 18 USC § 3182 have con-

ferred upon fugitives substantive rights which are action-

able under 42 USC § 1983. This decision is in conflict with

the principles enunciated by the Supreme Court in Biddin-

ger v. Commissioner of Police, 245 U.S. 128, 62 L. Ed. 193,

38 S. Ct. 41. The question in that case was whether an or-

der remanding the accused into custody to be conveyed te

the State of Illinois was in violation of the rights secured

to him by the Federal Constitution Article IV, Section 2,

Clause 2 and 18 USC § 3182. (Formerly United States Re-

vised Statutes § 5278.) This Court stated, in finding no vio-

lation and in describing the purpose of this constitutional

provision that:

The language was not used to express the law of extra-

dition as usually prevailing among independent na-

tions, but to provide a summary executive proceeding

by the use of which the closely associated States of the

Union could promptly aid one another in bringing to

trial! persons accused of crime by preventing their find-

ing in one state an asylum against the processes of

justice of another ....

. Courts have been free to give this meaning to the

Constitution and statutes because in delivering up an

accused person to the authorities of a sister state, they

are not sending him for trial to an alien jurisdiction,

with laws which our standards might condemn, but are

simply returning him to be tried, still under the pro-

SURLES, PETITIONER, v. WIRTH, RESPONDENT 7

tection of the Federal Constitution, but in the manner

provided by the state against the laws of which it is

charged that he has offended.

The purpose of this constitutional provision and the

statutes enacted pursuant to it is to grant to the state a

means of erasing the boundaries of the states so that each

state may bring to speedy trial offenders against its laws.

It confers no rights upon the fugitives being extradited.

The finding of the Court of Appeals that a cause of

action pursuant to 42 USC § 1983 exists where one alleges

that he has been illegally extradited is in direct conflict with

the Supreme Court case of Pettibone v. Nichols, 203 U. 8S.

192, 51 L. Ed. 148, 27 S. Ct. 111. The petitioner in that case

contended that his arrest and deportation from Colorado

was by fraud and so arranged as to deprive him of an op-

portunity to prove, before the governor of that state, that

he was not a fugitive from justice. This Court, in assuming

that the alleged facts were true, found that there was no

violation of the Constitution or laws,of the United States

by such action. The Court stated:

No obligation was imposed by the Constitution or laws

of the United States upon the agent of Idaho to so time

the arrest of the petitioner, and so conduct his deporta-

tion from Colorado, as to afford him a convenient op-

portunity, before some judicial tribunai sitting in Colo-

rado, to test the question whether he was a fugitive

from justice, and, as such, liable under the act of Con-

gress, to be conveyed to Idaho for trial there. In Eng-

land in the cases of one arrested for the purpose of

deporting him to another country, it is provided that

there shall be no surrender of the accused to the de-

manding country until after the expiration of a speci-

fied time from the arrest, during which period the

prisoner has an opportunity to institute habeas corpus

proceedings. Extradition Act of 1870, 33 and 34 Vict.

Chap. 52, § 11; 2 Butler, Treaty-Making Powers, § 436;

1 Moores, Extradition 741, 742. There is no similar act

8 SURLES, PETITIONER, v. WIRTH, RESPONDENT

of Congress in respect of a person arrested in one of

the states of the Union as a fugitive from the justice

of another state. The speediness therefore, with which

the Idaho agent removed the accused from Colorado,

cannot be urged as a violation of a constitutional right,

and constitutes no legal reason for discharging him

from the custody of the state of Idaho. [Emphasis pres-

ent in text. |

The Court of Appeals also found that a violation of

Georgia Code Ann. § 44-411 gave rise to a cause of action

under 42 USC § 1983. This holding is in conflict with the

Supreme Court case of Douglas v. Jeannette, 319 U.S. 157,

87 L. Ed. 1324, 1328, 63 S. Ct. 877 which stands for the prin-

ciple that to have a cause of action under the Civil Rights

Act, one must allege the deprivation of rights ercated by

the Constitution or federal law. This Court stated:

Allegations of fact sufficient to show deprivation of the

right of free speech under the First Amendment are

sufficient to establish deprivation of a constitutional

right guaranteed by the Fourteenth, and to state a

cause of action under the Civil Rights Act, whenever

it appears that the abridgement of the right is effected

under color of a state statute or ordinance.

Clearly one must allege the deprivation of a Constitutional

or federal right and a violation of state law is insufficient.

The petitioner respectfully submits that the writ re-

quested should be issued to resolve the conflicts of the Court

of Appeals’ decision and the various decisions of the United

States Supreme Court cited above.

SURLES, PETITIONER, v. WIRTH, RESPONDENT 9

II. The Court of Appeals for the Fourth Circuit’s de-

cision conflicts with principles established by the Courts of

Appeal for the Fifth, Sixth, and Seventh Circuits.

The decision by the Court of Appeals that one’s fed-

erally protected rights are infringed by an illegal extradi-

tion assumes that there are absolute limitations on a state’s

power to arrange for a return of a fugitive. Although the

Court of Appeals does not articulate exactly what “right”

of the respondent has been infringed upon by allegations of

an illegal extradition, its decision rests on the principle

that a fugitive’s federally protected rights could be violated

if one does not follow Article ITV, Section 2, Clause 2 and

18 USC § 3182, i.e., one can release a fugitive only upon

request of a governor of a demanding state. This position

is in conflict with the Seventh Cireuit position expressed in

the case of United States v. Lohman, 228 F. 2d 824 (7th

Cir. 1955). At issue in that case was a compact between two

states which authorized the officials of one State to permit

a person on probation or parole to reside in another State

and authorized the officers of a sending state to enter the

receiving stace for the purpose of apprehension and retak-

ing any person thus released on probation or parole. The

petitioner in that case contended that the compact was un-

constitutional because it violated Article IV, Section 2,

Clause 2 of the Federal Constitution and Title 18 USC §

3182. The court in discussing that contention said:

The contention appears to be that the constitutional

provision on extradition places an absolute limitation

upon the power of the states to provide or arrange for

the return of a person to a state from which such per-

son is a fugitive from justice. We think there is little,

if any, merit in this contention. In the first place, Con-

gress evidently thought the Constitution placed no

such inhibition upon the authority of the state to make

agreements concerning persons on probation or parole

10 SURLES, PETITIONER, v. WIRTH, RESPONDENT

because it expressly authorized the state to enter into

such compacts. Title 4 USCA § 111. Moreover and per-

haps more important is the fact that the constitution-

ality of similar compacts between other states has been

sustained....

In addition to conflicting with the principle stated in

U.S. v. Lohman, supra, the decision of the Court of Ap-

peals also conflicts with the principles established in Aleg-

ander v. Emerson, 489 F. 2d 255 (5th Cir. 1973). In that

situation a prisoner was held to be unable to maintain a

civil rights action for damages based upon alleged consti-

tutional infirmities of his arrest, search of his apartment

and seizure of property which was introduced at a trial

which resulted in his conviction. A similar situation is pre-

sented in this case. An individual, who has pled guilty to the

charge for which he was arrested and extradicted for, now

seeks money damages for the alleged violation of an extra-

dition proceeding which would have made only two in-

quiries; the first being whether the accused had been

charged with a crime under the laws of a demanding state

and second whether the person demanded was a fugitive.

Smith v. State of Idaho, 373 F. 2d 149 (9th Cir. 1961).

Both of these inquiries are irrelevant and no injury or prej-

udice to the respondent can be claimed in light of his subse-

quent guilty plea.

Finally, the Court of Appeals’ decision appears to con-

flict with the Sixth Cireuits’ decision in Crawford v. Lydick,

179 F. Supp. 211 (W. D. Mich. 1959), aff’d 280 F. 2d 426

(6th Cir. 1960). The court there found that the plaintiff’s

civil rights cause of action which contended that his jury

trial, conviction and sentences were illegal because of his

allegedly unlawful arrest in Ohio and removal to Michigan

was “wholly without merit.” The court found that the plain-

tiff had failed to allege any facts which showed that the

defendants had conspired to deprive him of any rights,

SURLES, PETITIONER, v. WIRTH, RESPONDENT 11

privileges or immunities secured by the Constitution and

laws of the United States.

In light of these conflicting decisions of the various

Courts of Appeal (Avco Corporation v. Aero Lodge No.

735, 390 U. S. 557, 20 L. Ed. 2d 126, 129, 88 S. Ct. 1235)

and in furtherance of the Supreme Court’s goals of uni-

formity of judgments the petitioner respectfully requests

that the writ be issued.

III. The decision of the Court of Appeals for the

Fourth Circuit is in direct conflict with various decisions of

the District Courts and the issues to be resolved are impor-

tant to the public at large.

The petitioner respectfully acknowledges that it is un-

usual for this Court to grant certiorari on the grounds of

a conflict between a court of appeals decision and a district

court decision. The petitioner submits however that this

situation is akin to the situation in United States v. Con-

stantine, 296 U. S. 287, 80 L. Ed. 232, 236, 56 S. Ct. 223, be-

cause not only does a conflict exist but the questions to be

resolved are important to the publie at large. The elimina-

tion of frivolous suits of this nature will reduce the burden

on the overcrowded federal courts and will relieve many

state and local public officials of the time and expense of

jury trials and possible personal liability in damages.

The cases of Hines v. Guthrie, 342 F. Supp. 594 (E. D.

Va. 1972) and Johnson v. Buie, 312 F. Supp. 1349 (W. D.

Mo. 1970) both stand for the proposition that one cannot

maintain an action for damages under the Federal Civil

Rights Act for an allegedly illegal extradition because the

constitutional provision and the statutes enacted thereun-

der were created to benefit the states and not to give sub-

stantive rights to fugitives. These cases also stand for the

proposition that one who has been convicted of a charged

offense in the demanding state is not entitled to maintain

12 SURLES, PETITIONER, v. WIRTH, RESPONDENT

an action for damages under 42 U.S.C. 1983 against those

who allegedly forcibly abducted him from an asylum state

without proper extradition proceedings. Finally Johnson v.

Bwie, supra, points out that the fugitive may have an action

under state law but that in most cases such an action would

appear to be against the appropriate officers of the asylum

state. (Emphasis added.)

The petitioner respectfully submits that these conflicts

need to be uniformly resolved and requests that the re-

quested writ issue.

IV. The decision of the Court of Appeals for the

Fourth Circuit is erroneous.

The Federal Civil Rights Act, 42 U. S. C. § 1983, re-

quires that before anyone can bring an action thereunder,

certain specific rights, secured to a citizen by the Constitu-

tion or federal laws must have been violated. It is the

petitioner’s position that the respondent does not have a

cause of action in this case because he has not alleged the

denial of any federally protected right within the meaning

of the Federal Civil Rights Act. Respondent’s contention

that the procedures of Article [V, Section 2, Clause 2 of

the United States Constitution and the procedures of the

Federal Extradition Act, 18 U. S. C. § 3182 have not been

complied with does not establish that a federal right has

been infringed upon.

The purpose of Article IV, Section 2, Cl. 2 of the

United States Constitution, and 18 U. S. C. § 3182 was to

facilitate the discovery and bringing to speedy trial of

fugitives from justice by the states. These provisions were

not intended to safeguard the rights of the fugitive. Bid-

dinger v. Commissioner of Police, supra. Upon this reason-

ing several district courts have held that one who has been

convicted of an offense in the convicting state cannot main-

tain an action for damages under the Federal Civil Rights

SURLES, PETITIONER, v. WIRTH, RESPONDENT 13

Act against those who allegedly forcibly abducted him from

an asylum state. Hines v. Guthrie, supra; Johnson v. Buie,

supra. For these reasons it has been held that a state may

constitutionally try a person charged with a crime within

its jurisdiction, even though that person was forcibly ab-

ducted from an asylum state, without a warrant and with-

out extradition proceedings. Frisbie v. Collins, 342 U.S.

519, 96 L. Ed. 541, 72 S. Ct. 509 (1952) rev’g. 189 F. 2d

464 (6th Cir. 1951); Ker v. Illinois, 119 U. S. 436, 30 L. Ed.

421,7S. Ct. 225 (1886); Crawford v. Lydick, 179 F. Supp.

211 (W. D. Mich. 1959) affm’d., 280 F. 2d 426 (6th Cir.

1960) cert. den. 364 U. S. 849, 5 L. Ed. 2d 72, 81 S. Ct. 93.

Pettibone v. Nichols, supra, stated that the arranging and

carrying out of the arrest and deportation of the accused

so as to give him no opportunity to prove before the gov-

ernor of the surrendering state that he is not a fugitive

from justice does not violate the provision of the Constitu-

tion and the laws of Congress enacted thereunder with

reference to extradition proceedings.

The logical inference to be gleaned from these deci-

sions is that an individual, who is within a state’s jurisdic-

‘tion and who is either convicted of a crime or pleads guilty

before a state court after having been fairly apprised of

the charges against him, and after a fair trial in accordance

with constitutional procedural safeguards, has no right to

sue for damages because of the alleged failure of that state

to acquire custody through a particular formalized process

of extradition. Ker v. Illinois, supra; Frisbie v. Collins,

supra; Hines v. Guthrie, supra. The same rationale is

illustrated in the ruling that state prisoners could not main-

tain a civil rights action for damages based upon the al-

leged constitutional infirmity of his arrest, search of his

apartment, and seizure of property which was introduced

at a trial which resulted in his conviction. Alexander v.

14 SURLES, PETITIONER, v. WIRTH, RESPONDENT SuRLES, PETITIONER, v. WIRTH, RESPONDENT 15

Emerson, supra. The assertion that if one is illegally ex- CONCLUSION

tradited he loses the opportunity to contest the regularity For these reasons, a writ of certiorari should issue to

of the proceedings is without merit because whatever de- review the judgment and opinion of the Fourth Circuit.

fenses the alleged fugitive can raise in the asylum state can

be raised as a defense in his trial or in a habeas corpus Respectfully submitted,

proceeding in the demanding state. No rights of the fu- | DANIEL R. MeLEOD,

gitive are infringed nor is there a greater deprivation of Attorney General,

liberty when an individual is extradited without formal State of South Carolina,

proceedings. Furthermore, the respondent cannot real- EMMET H. CLAIR,

istically argue that his position was significantly prejudiced

Nie ; Senior Assistant Attorney General,

in light of his subsequent guilty plea. Of Counsel

’

The alleged violation of Georgia’s Extradition statute,

which grants a fugitive a hearing prior to removal does

not confer upon the respondent a federally protected right

RICHARD D. BYBEE,

Staff Attorney,

which the Federal Civil Rights Act was designed to protect. Of Counsel,

A violation of state law is not sufficient to give rise to a Post Office Box 11549,

cause of action under 42 U. S. C. § 1983 because the rights Columbia, South Carolina 29211,

created by a state statute are not federally protected ones. Attorneys for Petitioner.

Hamilton v. Chaffin, 506 F. 2d 904 (C. A. Miss. 1975) ; Ouets

v. Maryland National Ins. Co., 470 F. 2d 790, reh. 505 F.

2d 547 (9th Cir. 1972); Croy v. Skinner, 410 F. Supp. 117

(D. C. Ga. 1976); Taylor v. Nichols, 409 F. Supp. 927 (D. C.

Kan. 1976); Saunders v. Cahill, 359 F. Supp. 79 (1973).

Furthermore, the petitioner should not be subjected to a

civil rights suit for the violation of a foreign state statute.

If any violation of Georgia law occurred it was perpetrated

by the Georgia officer who released the respondent into the

custody of the petitioner.

December 19, 1977.

In light of the above discussion, it is the petitioner’s

position that the Court of Appeals’ decision is erroneous

and that the requested writ should be issued.

APPENDIX

S.A OUD onsen Mote

eeerew es & — steve amenere

APPENDIX

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 76-1597

WILLIAM JOHN WIRTH, Appe.wiant,

versus

R. R. SURLES, Orricer, Stare Highway Patroi, APPELLEE

APPEAL FROM THE Unitep Staves Districr Court ror THE

District or SoutH Carouina, aT CotumBia. Sou Bratt, Jr.,

District JUDGE.

Argued June 9, 1977 Decided Sept. 22, 1977

Before BRYAN, Senior Cireuit Judge, RUSSELL and

. HALL, Circuit Judges.

Rosert FE. McCormack, Third Year Law Student (Micuaer

E. Ge._tner, Appellate Litigation Clinic, Georgetown

University Law Center on brief) for Appellant; H.

Brent Fortson, Assistant Attorney General (Dante.

R. McLeop, Attorney General, Treva G. AsHwortH,

Assistant Attorney General and Ricnarp D. Byer,

Legal Assistant on brief) for Appellee.

HALL, Cireuit Judge:

The plaintiff, William John Wirth, filed a pro se civil

rights action pursuant to 42 U.S. C. § 1983 seeking damages

from R. R. Surles, an officer of the South Carolina Highway

(19)

20 SURLES, PETITIONER, v. WIRTH, RESPONDENT

Patrol, for allegedly taking Mr. Wirth into custody, forcibly

removing him from the State of Georgia and returning him

to the State of South Carolina without first having Wirth

extradited. The district court, sua sponte, dismissed the

complaint holding that Surles’ conduct was not actionable

under 42 U.S. C. § 1983. We disagree, and we reverse and

remand this case for further proceedings.

I

FACTS

On February 18, 1974, the Allendale, South Carolina,

Police Department issued an all-points bulletin for a sus-

pect in the armed robbery of a local store. One hour after

the robbery, two unidentified Georgia highway police of-

ficers arrested Mr. Wirth in the State of Georgia for the

armed robbery. The two officers took Mr. Wirth to the

Georgia welcome station. Officer R. R. Surles, of the South

Carolina Highway Patrol, crossed into Georgia, took Mr.

Wirth into custody, and transported him into South Caro-

lina without any extradition proceedings. Mr. Wirth

pleaded guilty to the charge of armed robbery and was

sentenced.

II

DISMISSAL OF PLAINTIFF’S § 1983 ACTION

A civil rights claim based on 42 U.S. C. § 1983 should

not be dismissed for failure to state a claim upon which

relief can be granted, unless it appears beyond doubt that

the plaintiff could prove no set of facts in support of his

claim which would entitle him to relief. Conley v. Gibson,

350 U.S. 41, 45-46 (1957); Johnson v. Mueller, 415 F. 2d

394, 355 (4th Cir. 1969). Viewed in this context, there are

two essential elements which must be proven by plaintiff

in order to state a claim in a § 1983 suit. First, the conduct

complained of must have been done by some person acting

under color of law; and second, such conduct must have

subjected the complainant to the deprivation of rights,

privileges, or immunities secured to him by the Constitution

and the laws of the United States. Monroe v. Pape, 365

U.S. 167 (1961); Johnson v. Mueller, supra. at 355.

i er ar

a ee

APPENDIX 21

A.

UNDER COLOR OF LAW

Because the district court found no deprivation of

rights in this case, the issue of whether Officer Surles was

acting under the color of law was not reached below. Never-

theless, this court concludes that when a highway patrol-

man crosses a state line to obtain custody of a suspect and

returns the suspect without extradition to the state which

the officer serves, he is acting under color of law. Brzozowski

v. Randall, 281 F. Supp. 306, 311 (E. D. Pa. 1968). This

rule follows even when the challenged acts constitute an

abuse of the authority conveyed upon an officer. Scheuer v.

Rhodes, 416 U. S. 232, 243 (1974).

DEPRIVATION OF RIGHTS

The central issue in this case is whether the plaintiff

possessed any rights, privileges, or immunities secured to

him by the Constitution and the laws of the United States

which were infringed by his capture and removal to South

Carolina without extradition proceedings.

The district court held that the plaintiff possessed no

such right, privilege, or immunity, relying upon one line of

authority which supports such a holding. See, e. g., Hines v.

Guthrey, 342 F. Supp. 594 (W. D. Va. 1972); Johnson v.

Buie, 312 F. Supp. 1349 (W. D. Mo. 1970); Crawford v.

Lydick, 179 F. Supp. 211 (W. D. Mich. 1959). The rationale

for these decisions is found in the following language of

Biddinger v. Commissioner, 245 U. S. 128, 132-33, 138

(1917), which speaks to the purpose of the interstate ex-

tradition provision of the Constitution:

The language was not used to express the law of ex-

tradition as usually prevailing among independent

nations but to provide a summary executive proceed-

ing by the nse of which the closely associated states of

the Union could promptly aid one another in bringing

to trial persons accused of crime by preventing their

finding in one state an asylum against the processes of

22 SURLES, PETITIONER, v. WIRTH, RESPONDENT

justice of another. ... Such a provision was necessary

to prevent the very general requirement of the state

Constitutions that persons accused of crime shall be

tried in the county or district in which the crime shall

have been committed from becoming a shield for the

guilty rather than a defense for the innocent, which it

was intended to be. Its design was and is, in effect, to

eliminate, for this purpose, the boundaries of states, so

that each may reach out and bring to speedy trial of-

fenders against its laws from any part of the land.

Such being the origin and purpose of these provisions

of the Constitution and statutes, they have not been

construed narrowly and technically by the courts as if

they were penal laws, but liberally to effect their im-

portant purpose. ...

From this language, several courts have found that “the

constitutional provision for the interstate extradition of

fugitives and the federal statutes enacted thereunder were

designed to benefit the states, not to benefit fugitives.” E. g.,

Hines v. Guthrey, 342 F. Supp. 594, 595 (W. D. Va. 1972).

Although we recognize the limited nature of the extra-

dition proceeding, this court does not believe that the fu-

gitive possessed no rights which would conceivably give

rise to an action under 42 U.S. C. § 1983. Accordingly, we

specifically disagree with Hines insofar as it holds other-

wise.

Before the governor of the asylum state releases a

fugitive to the custody of the demanding state, he must

make the following two findings:

First, that the person demanded is substantially

charged with a crime against the laws of the state

from whose justice he is alleged to have fled, by an

indictment or an affidavit, certified as authentic by the

governor of the state making the demand; and, second,

that the person demanded is a fugitive from the justice

of the state the executive authority of which makes the

demand.

Roberts v. Reilly, 116 U. S. 80, 95 (1885).

a a ee es eee

mrs ae

APPENDIX 23

There can be no doubt that “the first of these prereq-

uisites is a question of law, and is always open, upon the

face of the papers, to judicial inquiry, on an application for

a discharge under a writ of habeas corpus.” Roberts, supra.

at 95. Therefore, in addition to the fact that “the [extradi-

tion] statute is one involving the substantial rights of

citizens, and its essential elements must be strictly fol-

lowed,” United States v. Meyering, 75 F. 2d 716, 717 (7th

Cir. 1935), the rights are open to inquiry through habeas

corpus. Simply stated, “[t]he alleged fugitive has a right

not to be imprisoned or dealt with by the states in disregard

of those safeguards provided by the Constitution and stat-

utes of the United States.” Meyering, supra. at 717.

Additionally, the laws of Georgia provide the fugitive

with many rights which are to be observed before extradi-

tion. See Ga. Code Ann. §§ 44-401 to 44-429 (1974). Under

§ 44-411, a fugitive is entitled to a hearing before a mag-

istrate who must inform him of the demand made for his

extradition, that he has a right to counsel, and that he has

a right to test the legality of his arrest by petition for a

writ of habeas corpus. A denial of these same rights was

found by the tenth circuit to be actionable under 42 U. S. C.

§ 1983. Sanders v. Conine, 506 F. 2d 530 (10th Cir. 1974).

“The requirement that a person arrested as a fugitive be

advised of his right to counsel and be taken before a court

patently benefits the prisoner, not the state.” Sanders,

supra. at 532, citing Pierson v. Grant, 357 F. Supp. 397, 398

(N. D. Iowa 1973). We find no merit in the argument that

the violation of Georgia’s extradition laws does not give

rise to a § 1983 suit. Where the violation of state law causes

the deprivation of rights protected by the Constitution and

statutes of the United States, a cause of action is stated

under 42 U.S. C. § 1983. See Sanders v. Conine, 506 F. 2d

530, 532 (10th Cir. 1974); Pierson v. Grant, 357 F. Supp.

397, 399 (N. D. Iowa 1973).

This court does not believe that law enforcement of-

ficials should simply ignore the clear mandates of state and

federal extradition laws in the apprehension and trans-

portation of fugitives. While recognizing that failure to

comply with state or federal extradition laws does not con-

24 SURLES, PETITIONER, v. WIRTH, RESPONDENT

stitute a defense to a criminal prosecution, Ker v. Illinois,

119 U. S. 436 (1886), we nevertheless hold that a complaint

alleging the arrest and transportation of a fugitive without

extradition proceedings does create a cause of action pur-

suant to 42 U.S. C. § 1983. Settled authority supports this

proposition, which we hold to be the better view. Sanders

v. Conine, 506 F. 2d 530 (10th Cir. 1974); Picking v. Penn-

sylvania Railroad Company, 151 F. 2d 240 (3rd Cir. 1945) ;

Pierson v. Grant, 357 F. Supp. 397 (N. D. Iowa 1973) ;

Brzozowski v. Randall, 281 F. Supp. 306 (E. D. Pa. 1968).

Finally, one unpublished opinion deserves commentary

since it was cited by defense counsel as possibly controlling

the present appeal. In Mabery v. Garrison, No. 77-1048

(4th Cir. Oet. 11, 1976), this court affirmed the denial of

a cause of action pursuant to 42 U.S. C. § 1983 brought by

a plaintiff who alleged a violation of the extradition laws.

The New York application for custody was approved by

the Governor of North Carolina, and the plaintiff, Mabery,

was surrendered to the New York authorities. However,

the plaintiff had previously begun a challenge of his im-

pending extradition, petitioning the state court for a writ

of habeas corpus and a temporary restraining order pro-

hibiting his removal from the state prior to a hearing. On

the day of Mabery’s removal, Warden Garrison received a

show cause order which had been entered that day by the

state court, but Mabery was already en route to New York.

Mabery sought damages from the warden and from

the New York district attorney. This court held that the

district court properly dismissed the suit as to both plain-

tiffs, noting first, that the New York district attorney could

not be served with process, and second, that it was man-

datory for the North Carolina warden to surrender Mabery

to New York authorities when the Governor of North Caro-

lina approved New York’s request for custody.

The dismissal of the suit as to the warden in the

Mabhery case reflects the good-faith defense which can be

raised in a § 1983 suit.’ Pierson v. Ray, 386 U.S. 547, 555-56

(1967).

! From the abbreviated record before this court, it is impossible to

determine the availability of this good-faith defense. On remand, this

defense, if applicable, and others, may be raised by the defendant, Surles.

APPENDIX 25

After this court approved the dismissal of the action

in the Mabery case on the grounds outlined above, it dis-

cussed issues similar to those raised in the instant appeal.

Because Mabery was decided on other grounds, the discus-

sion of the similar issues in Mabery is not controlling here.

Accordingly, the case is reversed and remanded for

further proceedings.

REVERSED AND REMANDED.

RUSSELL, CIRCUIT JUDGE, dissenting:

I dissent from the majority opinion for the reasons

stated in Hines v. Guthrey (W. D. Va. 1972) 342 F. Supp.

594, and United States Ex Rel. Bryant (D. Del. 1976) 423

F.. Supp. 471.

I might add that the majority opinion cites in support

of its conclusions Pierson v. Grant (N. D. Iowa 1973) 357

F. Supp. 397. However, on appeal the court of appeals did

not, as I read the opinion,' affirm the portion of the district

court’s decision cited by the majority in support of its

conclusion. On the contrary, the opinion of the appellate

court merely recognizes the conflict in the decisions on the

point.”

CERTIFICATE CF SERVICE

I hereby certify that on this 19th day of December,

1977, three copies of the Petition for Writ of Certiorari

were mailed, postage prepaid, to Michael E. Geltner, Es-

quire, Georgetown University Law Center, 600 New Jersey

Avenue, N. W., Washington, D. C. 20001, Counsel for the

Respondent.

DANIEL R. MeLEOD,

Post Office Box 11549,

Columbia, South Carolina 29211,

Attorney for Petitioner.

! Pierson v. Grant (8th Cir. 1975) 527 F. (2d) 161.

2 See Note 5 at 163, 527 F. (2d).