# Petition — Vinson v. Richmond Police Department

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0828%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 438 U.S. 903

## Text

ea MAR 4 3 1978

OFF: ; ULERK
| Supreme Court, U.S.

| IN THE SUPREME COURT OF THE UNITED STATES
!

| October Term, 1977

| no. 77- L355

GARNET VINSON,

| Petitioner,

RICHMOND POLICE DEPARTMENT, etc., et als,

Respondents.

TO THE
U. S. COURT OF APPEALS FOR THE FOURTH CIRCUIT

RECEIVED
SUPREME COURT, U. S.
POLICE DEPARTMENT

an
George Wm. Warren, IV MAR 1 3 19/8

1203 East Main Street AM PM
Richmond, Virginia 23219 7j8y9p Wid y 2 01243141518
AC804-648-9255 /
Counsel for Petitioner Yo fa
LAr Fo,

LAW OFFICES
FRANCIS, HuBARD, Tici

& WARREN

LAW OFFices
FRANCIS, HUBBARD, Tice
& WARREN

II

IIt

IV

VI

VII

VIII

Ix

TABLE OF CONTENTS

SABLE OF CITATIONS .. «se cc eee ce

OPINIONS BELOW on . . . * . - 7 . *. * .

JURISDICTION 7 7 . . . . . . 7. * * 7 . *

QUESTION PRESENTED:

What is the proper limitation statute for
§1983 Actions for violations of property
rights? > . . . * . bl >. . . . >. * . 7. .

AUTHORITIES INVOLVED ...... 2 « «

STATEMENT OF THE CASE... .+.+«-cecec

REASONS FOR ALLOWING THE WRIT .....

CONCLUS ION . . . . . . . 7 . . 7. * . . 7

CERTIFICATE OF SERVICE ........

APPENDIX . - . . . 7 . . . . . . . . . o

10

11

W OFFICES
1S, HUBARD, Tick
@ WaRREN

TABLE OF CITATIONS

Abrams v. Carrier Co

434 F.2d 1234, (8t ae Cir. 1970) bebecaees 6460080600 600e6n0%0 s
Allen v. Gifford,

462 F. 2d 615 (4th SS re a ne needed 4
Almond v. Kent,
~ 459 F.2d 200 (4th Cir. 1972) ......ceccecesceeceececeees + $,6,7
Barnes v. Sears, Roebuck & Co.,

406 F.2d 859 (4th Cir. 1969) inwbiinbadeduvedscéeceeesdes ‘
Butler v. Local Union 823, Int. Bro. of

Teamsters, Etc., 514 F. ‘2d 442° (1975) inbblibobsdedieswnecce -
Carter v. Hinkle,

189 Va. I (1 949) CUSSNSSEEGSEKSES OC RESEEKOOCEOSeDSeéSeERC Y
Carva Food Co Dawley,

202 Va. cas | (1361 SPADE ObeSGndededabiddcccodcesbccsosee 9
Coleman v. Kroger Co.,

399 F. Supp. 725 (W. OS ne 9

International Union, United automobile,
Aerospace, ricul tural Implement t Workers
ot America AFL- cyt = mGostee

Cardinal Corp., 3853 PT EE anéscnncccccndscecccs £6
Johnson v. McKee Bakin Co.,

398 F. Supp. 5 i i Cn cpepesceseanesoneuanauce a

McClury v. Silliman,

EGS. PEE I GIN. ns odcccncvcceccuckeccececees s

McDonough v. Kellogg,
05 Supp. 30 (W.D. ls. Geiecndekntdsncessese cose 8

O'Sullivan v. Felix,

—- ig = 4 “318 (1914) ieeehebeebsebesabédebeseenccceces 6
Smith v. ton Trainin ia for Nurses,

360 F. PE - Moco caves cadets sessenccccevs
U. S. v. Price,

I ns is. eaendeukedoeoccéoenceses 5
Vanderboom v. Sexton,

422 F.2d | 1233 (8th a é
Van Horn v. Lukhard,

"392 F. Supp. 384 (E.D. Va. 1975)......cccceccceececuccce 8
Statutes
EP ins GUNED TED Kc cdcccccccescsescesscceeeeces ?
Title 42, U.S.C., Section 1983 ...... secsdiiabddeimiititle verses BEEP

1950 Code of Virginia, as amended
SUCCEER BFE cccccvcccscccesecccces eccccces occece 3,6,2

/

GRORRE GE.B-BG o.00cscssesecsccecss bhiecwnnate 3,8

LAW OFFicEes
FRANCIS, HuBaARD. Tice

@ WARREN

MAR 1 3 19/8

OFFICE UF [Ht Cithn
SUPREME COURT, U.S

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. 77-

GARNET VINSON,

Petitioner,

Vv.
RICHMOND POLICE DEPARTMENT, etc., et als,

Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE
U. S. COURT OF APPEALS FOR THE FOURTH CIRCUIT

TO THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED STATES, AND
THE ASSOCIATE JUSTICES OF THE UNITED STATES SUPREME COURT:
COMES NOW your petitioner, Garnet Vinson, by his counsel,
George Wm. Warren, IV, and presents his petition for the is-
suance of a Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit.

I

OPINIONS BELOW

The decision of the United States Court of Appeals for
the Fourth Circuit which is the subject of the instant proceed-
ing is reported at(2}7)rea. 24 263 (4thCir. 1978). It is repro-
duced herein in toto, beginning at page APP-1l.

The order and decree of the United States District Court

for the Eastern District of Virginia (Norfolk Division), which

was the basis for petitioner's appeal to the United States

Court of Appeals for the Fourth Circuit was initially rendered

on September 24, 1976. It was unreported’ and appears in toto,

beginning at page APP-7.

The petitioner made a timely motion for reconsideration

of this opinion by the District Judge, which motion was denied

by the Court's Memorandum Order of December 9, 1976, which is

also

page

unpublished, and is attacheil hereto, in toto, beginning at
APP-9.
II

JURISDICTION

A.

The decision of the United States Court of Appeals for the

Fourth Circuit complained of here was rendered on December 12,

1977.

B.

The jurisdiction of this Court is invoked pursuant to

Title 28, U.S.C. §1253(1).

Cc.

Pursuant to Rule 33 2.(b) of the Rules of the Supreme

Court of the United States, petitioner states, by counsel, that

no Court of the United States as defined by Title 28 USC

§451

has, pursuant to Title 28, USC §2403, certified to the

Attorney General of the United States the fact that the

Constitutionality of any act of Congress has been drawn into

question as a result of this proceeding.

LAW OFFices

FRANCIS, Husano, Tice

@ WARREN

III

QUESTION PRESENTED

WHAT IS THE PROPER LIMITATION STATUTE FOR
§1983 ACTIONS FOR VIOLATIONS OF PROPERTY
RIGHTS?

IV

AUTHORITIES INVOLVED

The essential authorities upon which this petition relies
are the Fifth and Fourteenth Amendments to the Constitution of
the United States of America. They are set forth at page
App-1l.

The following statutes of the United States are also
pertinent to this petition: Title 19, USC §185, and Title 42,
USC §1983, both reproduced on page APP-12.

Statutes of the Commonwealth of Virginia directly involved
in this petition are §8-24 of the 1950 Code of Virginia, as
amended, and §64.1-145 of the 1950 Code of Virginia, as amended,

both reproduced on page APP-13 of this petition.

V.

STATEMENT OF THE CASE

On June 19, 1974, officers of the Richmond Bureau of
Police broke into a private residence, located at 1317 Summit
Avenue, in the City of Richmond, Virginia, and seized a
substantial quantity of photographic equipment and supplies,
valued at more than $1,500.00.

The search warrant authorizing the entry and seizure of
the property was found to be illegal by a judge of the Circuit
Court of the City of Richmond, Division I.

Subsequent demands by Petitioner, the owner of the seized
property, for its return have been unmet, and it appears the
property has been destroyed.

Petitioner is presently, and has been since prior to the
institution of the instant suit, an inmate of the Virginia

State penal system, incarcerated at Bland Correctional Center.

=-3-

LAW OFFiICEs

FRANCIS, HUBARD, Tice

&@ WaRKEN

On June 16, 1976, Petitioner mailed a verified civil
complaint, accompanied by an application for leave to proceed

in forma pauperis, to the office of the Clerk of the United

States District Court for the Eastern District of Virginia
(Norfolk Division). The suit was in the nature of an action
pursuant to Title 42, USC §1983, and sought equitable relief
and damages.

On July 9, 1976, the district judge ordered the complaint

filed, and granted Petitioner leave to proceed in forma pauperis

_

at the same time, directing that an amended complaint be filed,
providing considerably more detail. This was accomplished on
August 2, 1976.

On September 10, 1976, both Respondents filed motions to

dismiss, asserting inter alia, the running of the statute of

limitations.

The trial court treated the Respondents' pleadings as
motions for summary judgment, and dismissed the complaint for
not having been filed within two (2) years of the accrual of
the cause of action, ruling the appropriate statute of limita-
tions was Virginia's two (2) year limitation on personal injury
actions.

A request for reconsideration was denied, and a notice of

appeal timely filed.

vi

REASON FOR ALLOWING THE WRIT

THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
ERRED BY FAILING TO HOLD THAT THE APPROPRIATE STATUTE OF
LIMITATIONS IN §1983 CASES WOULD BE DETERMINED BY THE NATURE

OF THE CLAIM PRESENTED.

LAW OFFicEes
Francis, Husaro, Tice

& WaRrRtn

Among the more important considerations governing a
determination by this Court as to whether it should undertake
to grant certiorari in a case such as the one at Bar, is whether
the decision of the Court of Appeals which is complained of has
decided an important question of federal law which has not been,
but should be settled by this Court. This is clearly the
situation which applies to the instant proceeding.

This Court emphasized early on the sweeping, all encom-
passing nature of Title 42 USC §1983, and established beyond any
possibility of contradiction the requirement that this statute
must always be accorded a construction which effectuates its

broad humanutarian ends. U.S.cviaPriace}s3835U.S. 787°{1966).

Preliminarily it must be observed that the United States
Congress has never enacted a limitation of actions statute
applicable to suits arising under §1983. Almond v. Kent, 459
F.2d 200, 203 (4th Cir. 1972).

When federal statutory rights are involved, for which
Congress has failed to provide a limitation period, it is a
venerable and longstanding rule that each United States District
Court in which such rights are asserted refer to the law of the
state where it sits to determine the appropriate statute of

limitations. International Union, United Automobile, Aerospace,

Agricultural Implement Workers of America (U.A.W.) AFL-CIO v.

Hoosier Cardinal Corp., 383 U.S. 696 (1966); McClury v. Silliman

28 U.S. (3 Pet.) 270, 276-277 (1830).

As the court observed in Abrams v. Carrier Corp., 434 F.2d

1234, 1251 (8th Cir. 1970):

In determining which state
limitation period is applicable in the
case of a wholly federal right, it is
for the federal court to consider the
character of the claim involved, and
give effect to the nature and purpose
of the federal act from which the claim
derives and to the federal objectives
pursued.

This is a uniquely federal process, as this Court noted

in International Union v. Hoosier Cardinal Corp., supra, at p.

706. And "(t)he task is to select the characterization which

"best effectuates the federal policy at issue." " Vanderboom v.

Sexton, 422 F2d 1233, 1237 (8th Cir. 1970), cert. den., 400 U.S.
852,. Cited in Butler v. Local Union 823, Int. Bro. of

Teamsters, Etc., 514 F2d 442, 446 (1975).

Furthermore the characterization to be placed on a
particular cause of action is not immutable, but varies ac-
cording to the context within which it arises, and the federal

policy sought to be effectuated. Butler, supra, p. 448.

It is necessary, then, to turn to the actual selection of
an appropriate limitation period for the instant cause of
action. This question was considered in the relatively recent

case of Almond v. Kent,. 459 F.2d 200 (1972). In Almond, supra,

the plaintiff brought a Section 1983 suit in the Western
District of Virginia, essentially for personal injuries al-
legedly received at the hands of state officials in the course
of his arrest. Citing O'Sullivan v. Felix, 233 U.S. 318 (1914),
the Fourth Circuit examined the Code of Virginia for authority
as to the appropriate statute of limitations. op.cit.,p. 203.
Finding that the Commonwealth had enacted no limitations
statute specifically governing Section 1983 actions, the Court
held that resort must be had to Virginia's general statute of
limitations for personal injury actions, which is set forth in
Section 8-24 of the 1950 Code of Virginia, as amended.

loc.

cit. Suggesting (loc. cit., fn 3) that Virginia might wish to

consider the enactment of a specific limitation period for such
suits, so lo as it did not abridge the constitutional rights

asserted, the Almond court went on to declare, in dicta, that,

-6-

LAW OFFices

FRANCIS, HuBARD, Tice

@ Warren

generally speaking, Section 1983 actions were for personal
injuries, and therefore, Virginia's two-year limitation period
for personal injury actions would generally govern Section 1983
suits across the board op. cit., p. 204. The Court was careful
to distinguish between such actions in general, and actions,
such as the one at bar, for the redress of damage to property,
for which Virginia prescribes a five-year limitation period.

loc. cit.

In the same year as the Almond case, supra, the Fourth
Circsit considered the applicability of the same statutory
scheme to a Section 1983 action arising out of an alleged

housing discrimination incident. In a per curium opinion, the

Court determined that the appropriate Virginia limitation
period for this type of wrong is also two years. Allen Vv.

Gifford, 462 F.2d 615 (4th Cir.1972). This is scarcely
surprising, for Virginia has long recognized a right of action
for tortious interference with contract rights, such as those
involved in the sale or rental of real estate. See generally

Johnson v. McKee Baking Co., 398 F. Supp. 201 (W.D. Va. 1975);

McDonough v. Kellogg, 295 F. Supp. 594 (W.D. Va. 1969).

Subsequent to the decision in Almond, supra, the Virginia

General Assembly enacted a one-year limitations statute,
specifically for federal civil rights actions. Section 8-24
of the 1950 Code of Virginia, as amended. In a lengthy and
well-reasoned opinion, the United States District Court exa-
mined this latest statutory development in light of this Court's

opinion in Almond, supra, and concluded

that Section 8-24 of the Code

of Virginia is unconstitutional be-
cause it both burdens the assertion

of a federally created right of sub-
stantial importance and because it ef-
fects an invidious and unwarranted
discrimination against assertion of the
"constitutional tort."

aFa

LAW OFFICES
FRANCIS, HusaroD, Tice
@ WARREN

ome + oe

Van Horn v. Lukhard, 392 F. Supp. 384 (E. D. Va. 1975). In

this instance the trial judge was particularly correct in
analogizing the plaintiff's cause of action to a tort claim,
because the suit arose out of personal injuries received in
the course of a brutal, homosexual gang rape to which he had
been subjected while in state custody. op. cit., p. 386.
In the case at hand, however, there is no basis for
any claim that appellant's cause of action sounds in tort. His
suit arises, purely and simply, out of an unconstitutional in-
vasion of his property rights, and the subsequent unlawful
withholding, loss and/or destruction of his personal property.
(App. 5-6, 16)

Nor is there any need for this Court to be cast adrift
upon an uncharted sea of federal common law and constitutional
imperatives. Happily, the State of Virginia has specific
statutes which apply with particularity to the cause of action
in the present case. Section 8-24 of the 1950 Code of Virginia,
as amended provides a five-year limitation period for actions
for money damages which survive the death of a party, and Sec-
tion 64.1-145 of the Code specifically provides for such an
action" .. . for the taking or carrying away of any goods...,"
or for their waste or destruction.

Moreover, it is emphatically clear that, in a federal

action, predicated upon Virginia law, a ". . . right of action
for . . . personal injuries is not identical with... (a)

right of action for damage to . . . property." Barnes v. Sears,

Roebuck & Co., 406 F.2d 859, 862 (4th Cir. 1969).

Citing
Carter v. Hinkle, 189 Va. 1 (1949).

Following the pertinent decisions of this Court and
those of the Fourth Circuit, a federal district court has al-
ready had occasion to examine the issue mooted in this appeal
In an extensive and well-reasoned

in considerable depth.

LAW OFFices
NCIS, HUBARD. Tice
@ WARREN

opinion, the court in Coleman v. Kroger Co., 399 F. Supp. 724
(W.D. Va. 1975), discussed the selection and application of
limitations to actions in Virginia arising out of alleged vio-
lations of the Labor Management Relations Act, 1947, Section 30l,
19 U.S.C.A Section 185.

In Coleman, supra, the Court first determined that

there was no specific federal or state limitations statute and
then analogized the claim presented to it as a survivable tort
action for direct injury or deprivation of property rights.
op. cit. p. 730. The judge then applied the two Virginia
statutes cited supra, and concluded that the five-year limi-
tation period applied, rather than a one or two-year period.

loc. cit.

Virginia cases provide ample authority for the pro-
position that the case presently under consideration fully

qualifies for the five year statute of limitations. See gener-

ally Carva Food Corp. v. Dawley, 202 Va. 543 (1961). Equally
importantly, the imposition of the longer period would be in
full accord with the spirit of the federal policy which this

Court is charged with effectuating.

vit

CONCLUSION

For the foregoing reasons, this petition for a writ
of certiorari should be granted, and a Writ of Certiorari should
issue to the United States Court of Appeals, Fourth Circuit fort
with. Respectfully,

GARNET VINSON

oy OCD. Wh 7a LA_

George Wm. Warren, IV
Counsel for Petitioner

W

yy eae met es

OFFICE OF
SUPREME counr eRe

GARNET VINSON,
Petitioner
—
Vv. Pel ~
cs « be hss’ }
RICHMOND POLICE DEPARTMENT, et “al, fe | chp i
4 : a* |
Respondent Ln p oe
YA ' v | ” a
Av"

—

MEMORANDUM OPPOSING CERTIORARI

*

Respondent, Richmond Police Department, by counsel, represents
to the Court as follows:

1. The above entitled cause was decided by the United States Court
of Appeals for the Fourth Circuit and an Opinion was rendered and Judgment
docketed and entered on December 12, 1977. A copy of this Opinion has
been attached to the Petition. Judge Russell, in his Opinion, found it
unnecessary to consider the Statutes of Limitations defense since he
found that it was clear on the face of the Complaint that any cause of
action against the named defendants was without merit.

2. The sole question raised by the Petition for a Writ of Certiorari
is what is the proper limitation statute for a Section 1983 action. Since
the case was not decided on this ground, your respondent, Richmond Police
Department, contends that there is no justiciable issue for the Court to
decide and in the alternative suggests that the cause is moot.

THEREFORE, it appears that the petitioner's application for a
Writ of Certiorari should be denied.

Respectfully submitted,

. Stokes, II
Counsel for Respondent,
Richmond Police Department

RECEIVED
IN THE SUPREME COURT OF THE UNITED STATES
/ OCTOBER TERM APR 4 * 1978
NO. 77-6355 OFFICE OF THE CLERK
SUPREME COURT, U.S.

GARNET VINSON,

Petitioner ~~ ¢
™ VA Law oul

AM ah re
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RICHMOND POLICE DEPARTMENT, ‘etal, / fms daicdil, &5 y
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Respondent. pr 4

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MEMORANDUM POSING CERTIORARI

Respondent, Richmond Commonwealth's Attorney, by

counsel, represents to the Court as follows:

1. The above entitled cause was decided by the
United States Court of Appeals for the Fourth Circuit and an
Opinion was rendered and Judgment docketed and entered on
December 12, 1977. A copy of this Opinion has been attached
to the Petition. Judge Russell, in his Opinion, found it
unnecessary to consider the Statutes of Limitations defense
since he found that it was clear on the face of the Complaint
that any cause of action against the named defendants was
without merit.

2. The sole question raised by the Petition for a
Writ of Certiorari is what is the proper limitation statute
for a Section 1983 action. Since the case was not decided on
this ground, your respondent, Richmond Commonwealth's Attorney,
contends that there is no justiciable issue for the Court to

decide and in the alternative suggests that the cause is moot.

THEREFORE, it appears that the petitioner's appli-

cation for a Writ of Certiorari should be denied.

Respectfully submitted,

Stacy rett, III

Counsel for Respondent,
Richmond Commonwealth's Attorney

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0828%3A1. Public record. Not legal advice.