Opposition — KOWALSKI v. BUTLER (Nos. 78-1908, 78-1889)

jul 24 iI

No. 78-1908

In the

Supreme Court of the Qnited States

Ocroser Term, 1978

JOHN KOWALSKI, JOHN JURISS, FRANK KRAUSE

and JOHN MeDONALD.,

Petitioners,

Us.

LAWRENCE BUTLER, RON JACKSON, CHARLES

JAMES, MONROE JENKINS, JAMES NASH and

ESTATE OF NATHAN NASH, DECEASED,

Respondents.

On Petition For A Writ Of Certiorari Tio The

United States Court Of Appeals

For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JoHn CLARK HENDRICKSON

Ayrie Moore

79 West Monroe Street

Suite 912

Chicago, Tlinois 60603

Counsel for Petitioners.

Of Counsel:

Law Offices of Ayvrre Moore

79 West Monroe Street

Suite 912

Chicago, Illinois 60603

(312) 782-2742

Juty 24, 1979

: upreme Court, U, &*

+ ie I i i 3

The Scheffer Press, Inc.—(312) 263-6850

ad

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,

TABLE OF CONTENTS

PAGE

BEETS And Opiniotis Below . ........scsssssscessssscsssesssosecsesssess 2

SIE, MeN «tia scslcdveuessl'nsvuitiaveesnsitese simnabsjveiesens alin 2

asec nchnsotiaesnenseveedbiledson 2

INE SEIN NII os p calbdes ssc vchichonsbtandsacsssusesoanadetiosbsouei 3

Reasons Why The Writ Should Be Denied:

I. The Seventh Cireuit’s Affirmance Of The Di-

rected Verdicts And Judgments N.O.V. Was

Required By The Evidence, Even When Viewed

Most Favorably To The Police, And Conformed

I a staaadelininahl 7

A. The Affirmance Was Not Only Not In Con-

flict With Applicable Law, But Was Man-

I 1 os a ccsghdeadsieihannaubobanieideleaeas 7

B. The Undisputed Evidence Demonstrated

That The Police Did Not Have Reasonably

Trustworthy Information Giving Rise To

Ce ossalibled 11

1. The Police Did Not Know, Investigate,

Or Establish The Reliability Of The

Informer Or His Sources. ...........:0c00 11

2. The Accusation The Police Received

Was Not Credible And Was Not In-

Te: Te OD A ee A 16

3. The Police Never Independently Cor-

roborated The Informer’s Storv ........ 19

C. The Evidence, Even When Viewed Most

Favorably To The Police, Demonstrates

That There Could Not Have Been A ‘‘Rea-

sonable Good Faith Belief’’ That Prob-

able Cause Existed For The Arrest Of The

IED. cectivessccnnscsveinnesnnninsncorvenian phoveomutas 22

il

PAGE

II. The ‘‘Subordinate Officer’’ Defense Was Not

Raised In The Court of Appeals And Is

III atcha obeeishesdenninabanaaiainincSotadouiaimnedioess 26

RE eR eee ee SON OEE ee oC ER EN 28

Inpex To Crrations

CasEs

Aguilar v. Texas, 378 U.S. 108 (1964) ...cccccscseeseeeeees 8

Ammlung v. Chester, 355 F. Supp. 1300 (E.D. Pa.

a canal 22

Beck v. Ohio, 379 U.S. 89 (1964) .....cccccccocosscssessssessvsesesssseee 8

Bivens v. Six Unknown Agents, 456 F.2d 1339 (2d

Te steowidonn 22

Boscarino v. Nelson, 377 F. Supp. 1308 (N.D. Wise.

RE RE TARE EN nd SIDS SR RAO rere ORO EE 22, 23

Brown v. Illinois, 422 U.S. 590 (1975) c.cccccscsccccsssesesees 24

Brubaker v. King, 505 F.2d 534 (7th Cir. 1974) ........ 22, 23

Butler, et al. v. Goldblatt Bros., Inc. et al., 432 F.Supp.

UNITRIN ONS BIPIE F sti sensi scbsace ceesdhoncastcnidadatin’ 8, 16, 22, 24

California v. Taylor, 353 U.S. 553 (1957) cesses 27

Draper v. United States, 358 U.S. 307 (1959) ......8, 9, 10, 20

Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.

gg, PRIA EINE SHAG ES ER ete PR ST RON 22, 23

Jones v. United States, 362 U.S. 257 (1960)... 9,10

Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1967) ............ 22

McCray v. Illinois, 389 U.S. 300 (1967) ...cccccecceseeeees 8

People v. Jones, 31 Tll.2d 52, 198 N.E.2d 821 (1964) .... 16

Pierson v. Ray, 368 U.S. 547 (1977) ..c.cccccccsscsessssessseseees 22

Rodgers v. United States, 267 F.2d 79 (9th Cir.

RRR RE tne Savas RPM TUN ENE TORO ern eae 7, 8,15

iil

PAGE

Spinelli v. United States, 303 U.S. 410 (1969) ...... 8, 12,18

Tyrrell v. District of Columbia, 243 U.S. 1 (1917) ........ 27

Whiteley v. Warden, 401 U.S. 560 (L971) ..-csccesesseeeeees 27

Wilkerson v. McCarty, 336 U.S. 53 (1949) ....ccceceeeeees 26

STATUTE ¢

GD TWBCic GIDGB oecevinsessinsntcsceeresrssrevienencinticcnaatnnamemnnn 3, 4, 23

MISCELLANEOUS

Stern & Gressman, Supreme Court Practice (5th Ed. t

WTB) xcercncsseevasssvesessnvnesesesasensssesseessanasustonovnseasssenscaoeioeateatios 27

In THE

SUPREME COURT OF THE UNITED STATES

Oocroser Term, 1978

No. 78-1908

JOHN KOWALSKI, JOHN JURISS, FRANK KRAUSE

and JOHN McDONALD,

Petitioners,

vs.

LAWRENCE BUTLER, RON JACKSON, CHARLES

JAMES, MONROE JENKINS, JAMES NASH and

ESTATE OF NATHAN NASH, DECEASED,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents, Lawrence Butler, Ron Jackson, Charles

James, Monroe Jenkins, James Nash, and Kstate of

Nathan Nash, Deceased, respectfully request that this

Court deny the petition for a writ of certiorari, seeking

review of the judgment and opinion of the United States

Court of Appeals for the Seventh Cireuit entered in

this proceeding on December 29, 1978, previously filed

on behalf of petitioners John Kowalski, John Juriss,

Frank Krause, and John McDonald.

oscil

ORDERS AND OPINIONS BELOW »

The judgment of the United States Court of Appeals

for the Seventh Cireuit was entered on December 29,

1978 ( Petitioners’ Appendix A at la-Sa). The opinion has

been reported at 589 F.2d 323. The opinion of the Court

of Appeals unanimously denying petitioners’ application °

for rehearing en banc was entered on March 26, 1979,

and corrected on April 19, 1979; that opinion has not

been reported, but is included in petitioners’ Appendix

(Petitioners’ Appendix B, at 9a-10a). Prior to trial, the '

District Court filed an opinion respecting respondents’

motions for summary judgment; that opinion has been

reported at 432 F.Supp. 1122.

COMPANION PETITION

Respondents have previously filed their own separate

petition for a writ of certiorari to review that part of

the Court of Appeals’ judgment reversing the jury’s ver-

dicts against Goldblatts (hereinafter defined). Lawrenre

Butler, et al. v. Goldblatt Bros., Inc., et al., No. 78-1889.

The present police officer petitioners are not parties to

that petition.

QUESTIONS PRESENTED

I. Whether the Seventh Circuit’s affirmance of the

directed verdicts and judgments 2.0.1. was supported

by the evidence, even when viewed most favorably to the

police, and conformed to applicable law.

II. Whether the “subordinate officer” defense may be

considered by this Court on certiorari or is even seriously

advanced by petitioners.

=

STATEMENT OF THE CASE

The jurisdiction of the District Court was invoked

under 42 U.S.C. §1983, 28 U.S.C. $1331, 28 U.S.C. $1343,

the Fourteenth Amendment to the Constitution of the

United States, and the doctrine of pendent jurisdiction.

Nature of the Action

The respondents, Lawrence Butler, Ron Jackson,

Charles James, Monroe Jenkins, James Nash and Estate

of Nathan Nash, Deceased, brought an action for damages

to redress violations of their federal civil rights under

42 U.S.C. $1983 and the Fourteenth Amendment, arising

from their false arrest and imprisonment without war-

rants and without probable cause. Under the doctrine

of pendent jurisdiction, respondents also claimed damages

for violation of their rights under the law of the State

of Illinois (common law false arrest and imprisonment).

The Parties

There have been, throughout this litigation, two separate

sets of defendants. One set is composed of Chicago police

officers; they are officers John McDonald, John Juriss,

Frank Krause and John Kowalski. The other group is

composed of Goldblatt Bros., Inc., a department store

chain headquartered in Chicago, and its private security

police employees, Thomas Marsh, Andre Walker and

Dennis McFarland (often collectively referred to herein

as ‘‘Goldblatts’’ or the ‘‘Goldblatts agents’’). All of the

respondents are truck drivers employed by Goldblatts.

Although Ernest Lewis and Cecil Davis are listed in

petitioners’ caption, no judgments were entered below

in their favor against the petitioning police officers, and

they are not proper parties to the petition.

sain ities

Proceedings in the District Court

This case was tried on Counts I (42 U.S.C. §1983) and

Ill (false arrest and imprisonment under Illinois law)

of respondents’ third amended complaint. The District

Judge, Bernard M. Decker, directed verdicts in favor vf

the respondents and against police officers McDonald and

Juriss, specifically finding that the warrantless arrests

were unconstitutional and made without a_ reasonable,

good faith belief in the existence of probable cause. Judge

Decker entered judgments n.0.v. in favor of petitioners

Butler and Jenkins and against officers Kowalski and

Krause, respectively, under both counts.

The evidence concerning the role of the police in the

episode giving use to this litigation was not disputed

in any material respect. In summary, the evidence was

that on September 19, 1974, Goldblatts agents Marsh

and Walker contacted police officer Krause and stated

that they had received an anonymous telephone tip about

a threat against Walker. (Krause, Tr. 727) The police

refused to take any action. (Krause, Tr. 728) Later,

Goldblatts called back with a different story, attributing

the information to a paid, undercover informer employed

by Goldblatt Bros., Inc. (Krause, Tr. 728) Still later,

there was a meeting at Area 3 police headquarters be-

tween the police and the Goldblatts agents. (McDonald,

Tr. 313-314; Juriss, Tr. 373; Krause, Tr. 727-730; Marsh,

Tr. 533; Walker, ‘I’. 787)

At the September 19 meeting, the Goldblatt agents

claimed to have received a warning from an unidentified

informer that unnamed employees of Goldblatt Bros., Inc.

planned to kill Walker if he testified in a theft case

on September 25. The Goldblatts agents refused to dis-

close the identity of the alleged informer to the police.

eh

(McDonald, Tr. 314; Juriss, Tr. 376-377; Marsh, Tr. 530-

533; Walker Tr. 787-788) No details of the “plot”, the

parties supposedly involved, or the informer’s sources

were communicated to the police, and the meeting con-

cluded with the agreement of the police to cover Walker’s

appearance in court. (MeDonald, Tr. 319-320) |

The police knew that the Goldblatts agents themselves

had no direct knowledge of any unlawful activity by

respondents. (McDonald, Tr. 316; Juriss, Tr. 377-379;

Krause, Tr. 746-747; Walker, Tr. 828) The police did

not ever investigate the matter. (McDonald, Tr. 321-325,

341-342, 347-348; Juriss, Tr. 379-408, 435-436; Gerl, Tr.

443, 452)

On September 25, Walker, under police surveillance,

testified in the theft case against Jesse Green (never

involved in this case) and Wayne Young (who—unknown

to the police—was the alleged informer). (Walker, Tr.

826) Thereafter, Walker accused Ernest Lewis (not an

employee of Goldblatt Bros., Inc., and not a respondent

herein) of assaulting him in the Courtroom. (Walker,

Tr. 797; Juriss, Tr. 390-391) Juriss had been “concen-

trating” on Walker at the time and did not observe any

such incident. (Juriss, Tr. 389-390) (The police state

that Juriss “had not seen the incident because he had

preceded Walker out of the courtroom.” Petition, at 6.

This is a gross misrepresentation; Juriss testified that

he was ‘‘concentrating’’ on Walker and ‘‘followed’’ him

out the of courtroom. [Juriss, Tr. 389-390]) Nevertheless,

Lewis was arrested. (Juriss, Tr. 391-393) The instant

petition does not present any issue respecting the arrest

of Lewis.

Later on September 25, the Goldblatts agents met

again with the police at Area 3. They all agreed to return

a

to the Goldblatts warehouse where respondents would

be pointed out by the agents and then arrested without

warrants. (McDonald, Tr. 332-334, 340; Juriss, Tr. 405,

407). The police never took any action to even begin the

warrant process. (McDonald, Tr. 326; Juriss, Tr. 373)

The police did not speak with the alleged informer

until after the arrests were underway, and no attempt

was ever made to determine his reliability. (MeDonald,

Tr. 313-316, 323-324; Juriss, Tr. 402-404; Gerl, Tr. 452)..

After being incarcerated, fingerprinted, and photographed

all of the respondents were released. None were chareed

with any offense, and the single charge against Lewis

was subsequently stricken. (Lewis, Tr. 120). The jury

awarded each of the respondents $5,000 in damages

against both sets of defendants; it also awarded Lewis

$6,630 against Goldblatts alone.

The Seventh Circuit Affirms

Both sets of defendants appealed to the United States

Court of Appeals for the Seventh Circuit. The Court

of Appeals held that there was no basis for anv hana:

able, good faith belief that the warrantless arrests of

the respondents were based on probable cause and, there-

fore, affirmed the directed verdicts and judgments nae

against the police officers. By unanmious vote, the Court

of Appeals denied petitioners’ application for rehearing

en bane. (The Court of Appeals’ reversal of the eae

verdicts in favor of respondents and against Goldblatts

is the subject of the companion petition described aes

at

REASONS WHY THE WRIT SHOULD

BE DENIED

I,

THE SEVENTH CIRCUIT’S AFFIRMANCE OF THE

DIRECTED VERDICTS AND JUDGMENTS N.O.V.

WAS REQUIRED BY THE EVIDENCE, EVEN WHEN

VIEWED MOST FAVORABLY TO THE POLICE, AND

CONFORMED TO APPLICABLE LAW.

A. The Affirmance Was Not Only Not In Conflict With

Applicable Law But Was Mandated By It.

Applicable law demonstrates that, even when the un-

disputed facts are viewed most favorably to the police,

the Seventh Circuit correctly affirmed that the warrant-

less arrests of the respondents were not founded upon

probable cause or a reasonable good faith belief therein.

The record shows that the police made these arrests

without any knowledge of the commission of an offense,

except accusations attributed to an informer with whom

the police never spoke and whose reliability they did not

know. Such arrests are unconstitutional:

_ where the officer makes an arrest without any

knowledge of the commission of a crime except from

an informer whom he does not know to be reliable,

the courts have consistently held there is no reason-

able grounds for the arrest. Rodgers v. United States,

267 F. 2d 79 (9th Cir. 1959) at 85.

At no time did plaintiff-respondents, the District Court,

or the Seventh Circuit, as the petitioning police suggest,

ever argue that the law of probable cause prohibits police

from making arrests on the basis of information “sup-

plied by reliable informants, by-standers and victims.”

Petition, at 13. In fact, the absence of such reliable infor-

mation was the basis for the District. Court’s imposition of

— 8

liability on the police and for the Seventh Circuit’s

affirmance.

The courts, including the Seventh Circuit in this case,

have consistently held that the existence of probable

cause depends on a determination of:

Whether . .. at the moment the arrest was made

... the facts and circumstances within [the officers’)

knowledge and of which they had reasonably trust-

worthy information were sufficient to warrant a

prudent man in believing that the [person arrested]

had committed or was committing an offense. Beck

v. Ohio, 379 U.S. 89 (1964) at 91.

Probable cause depends, then, on whether the police

had reasonably trustworthy information justifying the

arrest at the time it was made. As the Seventh Circuit

noted, to demonstrate the trustworthiness of information

attributed to an informer, the law requires a showing

of the underlying circumstances which provide a basis

for crediting the informer’s story. At the very least,

this has meant establishing the reliability of the informer

or producing corroborative evidence independently ob-

tained by the police as a result of their own observation,

experience or investigation. See McCray y. Illinois, 389

U.S. 300 (1967); Draper v. United States, 358 U.S. 307

(1959); Beck v. Ohio, supra; Rodgers vy. United States,

supra; Spimelli v. United States, 303 U.S. 410 (1969) ;

Aguilar v. Texas, 378 U.S. 108 (1964); Butler, et al. v.

Goldblatt Bros., Inc., et al., 482 F. Supp. 1122 (N.D. Tl.

1977).

Therefore, the Seventh Circuit’s determination that the

existence of probable cause “must hinge on the weight

to be given the information that was supplied by the

{informer],” Petitioners’ Appendix A, at 4a, is in com-

maine

pliance with the foregoing principles and is not a “new

definition” of probable cause.

As more fully discussed below, the petitioning police

officers’ own evidence established that they acted on the

basis of inherently unreliable evidence. The police never

spoke to anyone, much less a reliable police informant,

bystander or victim, who claimed to have observed any

criminal or suspicious conduct by any of the respondents.

Further, the police testified that that they: (a) knew a week

before the arrests that the accusations of the Goldblatts

agents were merely repetitions of hearsay accusations

which those agents claimed to have received from an

unknown informer; (b) knew that the Goldblatts agents

themselves had no direct knowledge of any unlawful

conduct by any of respondents; (¢c) knew nothing about

the alleged informer, his identity, reliability, or sources,

and never even spoke with him prior to the arrests;

(d) conducted no investigation and never independently

corroborated the accusation; (e) never observed agent

Walker to be in any danger; and (f) never attempted

to secure arrest warrants.

No party to this litigation, or the courts below, have

ever found a case in which the Constitutionality of an

arrest, or a reasonable good faith belief therein, has been

upheld on a record as barren as this. Neither Jones v.

United States, 362 U.S. 257 (1960), nor Draper v. United

States, 358 U.S. 327 (1957), inexplicably relied upon by

the police, are in conflict with the decision of the Seventh

Circuit. In both eases, the police. dealt directly with the

informer upon whose information they relied; the in-

former was well known to the police and had previously

supplied reliable information; and, the information sup-

plied was independently corroborated by the police. To

—10—

compare the “information” supposedly supplied by the

informer in this case to that supplied by the informers

in Jones and Draper betrays either a profound misappre-

hension of the law or an exceptionally careless analysis

of the issues before this Court.

In applying the foregoing principles to the undisputed

facts below, the Seventh Circuit correctly held that the

police had failed to make the requisite showing either

of the reliability of the informer or of independent police

corroboration :

. it is quite apparent that the police officers had

no reasonable basis for believing [the informer] to

be a reliable informant. The record discloses that

the [police] did not have any prior experience with

{the informer], and indeed did not even know that

he was the individual supplying the information.

By the same token, it is equally apparent that the

officers did not have reasonable grounds for believing

the information to be reliable, since they did not

undertake an independent investigation to corroborate

the details of the accusations. [citations omitted]

Petitioners’ Appendix A, at 4a.*

Petitioners suggest that safeguards surrounding the use

of informers should be ignored when the police act on

the basis of unsubstantiated hearsay accusations at-

tributed to an informer, whom the police do not know

to be reliable, by intermediaries with no persona! knowl-

edge. Their argument is that the police have no obligation

*It should be noted that it is in connection with its

second point (police failure to corroborate the accusation)

that the Seventh Cireuit discusses the absence of any

“first-hand knowledge of any facts to support a belief

that the six Goldblatt employees were engaged in criminal

activity at the time [of their arrests].” Petitioners’ Ap-

pendix A, at 5a.

pe

to ever go beyond the last link in a long chain of hearsay

within hearsay. It is the petitioners, not the Seventh

Circuit, who would establish a “new definition” of prob-

able cause.

B. The Undisputed Evidence Demonstrated That The

Police Did Not Have Reasonably Trustworthy Infor-

mation Giving Rise To Probable Cause,

1. The Police Did Not Know, Investigate, Or Es-

tablish The Reliability Of The Informer Or His

Sources.

The law requires that, at the time of a warrantless

arrest, the police have reasonably trustworthy informa-

tion giving rise to probable cause or a good faith belief

therein. Where the police obtain no independent evidence

of alleged criminal conduct, and their only information

is attributed to an informer, the reliability of the in-

former and his information must be established. Here,

the police failed to meet these minimal requirements.

They neither knew nor investigated the reliability of the

unknown informer and, as noted by the Seventh Circuit,

failed to even learn his identity prior to the arrests.

The testimony of officer McDonald concerning the in-

former demonstrated the ignorance of the police:

Q. Did [Goldblatts agents] Marsh and Walker tell

you that this information came from an informer?

A. Yes, sir.

* * *

Q. Did Marsh and Walker refuse to tell vou the

name of the informer?

A. Yes, they did.

Q. Did you ask them if that informer had an

arrest record?

A. No, I did not. Jt was their informant and not

a police department informant.

=

Q. Did you ask them if that informer was at that

time a defendant in a criminal case?

A. No, I did not.

Q. Did you ask them if that informer had any

personal disputes with any of the people who were

supposedly involved in that conspiracy?

A. No, I did not. | merely inquired as to his

dependability as far as they are concerned.

Q. Did you ask Marsh and Walker if their in-

former was being paid for acting as an informer?

A. No, I did not.

Q. Did you ask how long the informer had worked

for Goldblatts?

A. No, I did not.... .

Q. Did you ask them how the informer came into

possession of the information that there was sup-

posedly a conspiracy against Walker’s life?

A. No,I did not. ...

(MeDonald Tr. 313-316, 323-324)

The law requires, however, that the police know that

an informer is relying on “something more substantial

than a casual rumor... or an accusation based merely

on an individual’s general reputation.” Spinelli v. United

States, 303 U.S. 410 (1960) at 416.

Further, the police knew from the start that the sole

source of Goldblatts’ “information” was the vague accusa-

tion attributed to the private informer with whom the

police had no experience, not any event that the Goldblatts

agents witnessed:

Q. At that meeting did you have any information

beyond what Marsh and Walker had told you that the

informer had in turn told them?

A. RO Oc ss

(McDonald, Tr. 313-316, 323-324)

oe

= =

Juriss’ testimony was the same:

Q. But you knew that [the informer] was the

source of their information as to the story that they

were telling you?

A. Yes.

Q. Did they tell you on that date, or any other

date, with the exception of the Ernest Lewis incident

in the courtroom, that they had personally observed

any plaintiff doing anything in connection with this

supposed story that they had told you?

A. No, sw.

a * *

Q. Was Wayne Young ever a direct informer for

the police department?

A. Not to my knowledge. He never worked with

me.

” * .

Q. And at the time of that arrest of that decision

to arrest, did you have any information of any kind

beyond what Walker or Marsh had conveyed to the

police department?

A. No, sir.

Q. You had no direct information from [the in-

former], ts that correct?

A. I didn’t personally, no, sir.

(Juriss, Tr. 377-379, 402-404)

McDonald testified that he did not assign anyone to

the specific task of investigating either the informer or

the alleged conspiracy. (McDonald, Tr. 318-321, 348, 765-

766). Juriss confirmed that the police never conducted

the slightest inquiry:

Q. Up to that point in time [the day of the

arrests] had anybody ever investigated [the informer]

Wayne Young?

A. Not to my knowledge, counselor.

~ * .

—14—

Q. Officer Juriss, at any time did you conduct an

investigation of Wayne Young [the informer]?

A. No, sir, I did not.

- . *

Q. Are you aware of anybody else who conducted

an investigation, cither of Wayne Young or [rnest

Lewis?

A. No, sir, | am not.

. * .

Q. [I]s this a case ... in which the police depart-

ment would be duty bound to investigate?

A. As the faets and circumstances developed, I'd

say that we did have an obligation in this case.

Q. When did that obligation arise?

A. On the 19th of September |the week before the

arrests]...

(Juriss, Tr. 379, 408, 414-415)

As did officer Gerl:

Q. Had you ever made an arrest on the basis of

any information cver supplied by Wayne Young?

A. No,T hadn't.

Q. Did you ever undertake any effort to determine

if Wayne Young was a reliable informer?

A. No.

(Gerl, Tr. 452)

The alleged informer was, when he allegedly passed

his accusation to Walker, a defendant in the very pro-

ceeding in which Walker was to testify for the prosecu-

tion. (Young, Tr. 896) None of the respondents were

involved in that proceeding. Young, the alleged informer,

was the only party related to this case who could have

been adversely affected by Walker’s testimony. In addi-

tion, the Goldblatts agents were Young’s superiors at

Goldblatts. The impact of such a situation on the inform-

er’s reliability is obivous and, more significantly, could

=" a

have been discovered by rudimentary police investigation.

The rationale for requiring police knowledge of the source

and particulars of hearsay information is to prevent

the type of abuses which occurred in this case:

(T]he arresting officer in the exercise of his authority

should not become the tool of an informant whose

motivations run the gamut from sheer mischief to

calculated self-aggrandizement. Rodgers v. United

States, supra, at 267 I. 2d 88.

The arrests were not, then, based upon information

stpplied by “reliable informants, bystanders and victims.”

in a ludicrous attempt to avoid the safeguards surround-

ing the use of informers and the consequences of their

ignorance, the police attempt to distance themselves from

the unknown informer from whom they knew the accusa-

tion came, and they interposition Marsh and Walker be-

tween themselves and the informer. However, the police

repeatedly admitted that the Goldblatts agents were not

the informers and never claimed to have any direct

knowledge of anything they said their informer had told

them. Mere reliance upon unsubstantiated hearsay accusa-

tions attributed to an unknown informer, which accusa-

tions are filtered through intermediaries having no direct

knowledge, are insufficient to give rise to probable cause.

As Judge Decker stated below:

The [police] apparently recognize that the arrests

eannot be justified upon the reliability of the in-

formant. They thus state “it was not the informant

that provided the information concerning the plot to

kill Mr. Walker but rather Mr. Walker himself and

Mr. Marsh.” This does not cure the unreliability of

the story. Walker and Marsh lacked first-hand knowl-

edge of the truth of their information. There is no

shortcut to probable cause. It can be no more obtained

= oe

by filtering a second-hand tale through a well-known

informant than will pure hearsay become admissible

because the witness has a reputation for honesty.

Butler, et al. v. Goldblatt Bros., Inc., et al., 482 F.

Supp. 1122 (N.D. Til. 1977) at 1126 (emphasis added).

As noted by Judge Decker, hearsay accusations of

unknown informers cannot give rise to probable cause,

or a reasonable, good faith belief therein, because they

are repeated to the police by persons with no personal

knowledge. That is doubly true, when, as here, the in-

former, his sources, his credibility, and his accusations

are never investigated by the police:

It is certain that mere suspicion, common rumor

or report do not afford probable cause for arrest.

People v. Jones, 31 Ill. 2d 42, 198 N.E.2d 821 (1964),

at 198 N.E. 823. >

Because the police never investigated and did not speak

with the informer prior to the arrests, they could not

know whether the report was based on anything more

than “mere suspicion.” The police did not meet the minimal

requirements for establishing the trustworthiness of their

information. The interests of law enforcement and of the

rights of private citizens were both ignored.

2. The Accusation The Police Received Was Not

Credible And Was Not Investigated.

The accusation the police received through the Gold-

blatts agents was inherently unreliable not only because

it came from an unknown informer of unknown reliability,

but also because it was barren of substance and detail.

Even had the accusation come from a trusted police in-

former, it would have been insufficient to give rise to

probable cause. The police testimony demonstrated that

a

the story they received was nothing more than a rumored,

vague accusation. The police “knew” no underlying de-

tails; they did not even make an effort to obtain, much

less investigate, any details of the accusation:

Q. Did you ask Mr. Marsh and Mr. Walker on the

19th of September if there had been overt acts in

furtherance of this alleged conspiracy to murder?

A> No.

Q. What about any time after that?

A. I don’t recall that I did.

(McDonald, Tr. 771)

And, Juriss testified :

Q. On September 19th, 1974, the date of the first

meetings between the police and Goldblatt’s, did

Lieutenant McDonald order anybody to conduct any

sort of investigation in connection with or with

respect to the alleged conspiracy?

A. No, sir.

(Juriss, Tr. 379)

The police never produced any details of the alleged

conspiracy beyond the accusation. When pressed for par-

ticulars of the story within his knowledge, McDonald

testified to virtually nothing except his recollection that

“somebody had made a threat.” (McDonald, Tr. 342-344)

Whatever vague connection there was alleged to have

been between the “threat” and Walker’s expected testi-

mony in the Young-Green matter, it was not deemed

worthy of police investigation, and the police did not

take the threat seriously. (McDonald, Tr. 321, 341; Krause,

Tr. 728)

Although the police had only the accusation about the

“plot,” they had even less information about the persons

supposedly involved. Until moments before the arrests,

a

the police had not even received an accusation naming

any of the six. They testified they had no prior dealings

with the six, did not know them, and prior to September

25 had not even heard their names. (See, e.g., McDonald,

Tr. 339, 346; Jurris, Tr. 371-372, 407; Krause, Tr. 737)

There certainly was no information linking respondents

to the bogus conspiracy. The police established no basis

for crediting the hearsay within hearsay passed to them

by the Goldblatt agents and produced no underlying objec-

tive details to support it. This Court has held tips barren

of such details inherently unreliable:

In the absence of a statement detailing the manner

in which the information was gathered, it is especially

important that the tip describe the accused’s criminal

activity in sufficient detail that the magistrate may

know that he is relying on something more substantial

than a casual rumor ... or on an accusation based

merely on an individual’s general reputation.

* * e

This meager report could easily have been obtained

from an offhand remark heard at a neighborhood

bar. Spinelli v. United States, supra, at 303 U.S. 416.*

The most that the police ever claimed to have had at

the time of the arrests was the “meager report” of the

Goldblatts agents that an unknown informer had learned

in an unknown way that a group of unknown persons

were somehow connected to a vague plan to harm Walker.

The police knew nothing from their own experience

or observation except what Marsh and Walker chose to

*The only source of information that the informer

ever claimed to have against the respondents was the very

sort deemed suspec’) by the Supreme Court in Spinelli:

offhand remarks alleged to have been overheard at a

neighborhood bar.

_ we

tell them, and that was precious little. That the Goldblatts

agents were so willing to finger the respondents for

arrest cannot, as far as the police are concerned, cure

the overwhelming defects of the story.

3. The Police Never Independently Corroborated The

Informer’s Story.

Recognizing that they failed to establish the informer’s

reliability, the police argue that they independently cor-

roborated the unknown informer’s accusation. This argu-

ment is defeated, first, by the police admission that they

had no independent corroboration: “[The police] had no

direct knowledge of the events constituting probable

cause.” Police February 17, 1978 Brief in the Seventh

Circuit, at 14.

Second, the police base their argument on Walker’s

accusation that Ernest Lewis (not a respondent) assaulted

him in the courtroom. That line of reasoning is nonsense:

The police never saw, much less corroborated, the alleged

incident. In fact, their own observations tended to discredit

1ather than corroborate Walker’s accusation.

There is no dispute that Walker was under continuous

police surveillance on September 25 (Stipulated Facts

71-12; R. 88); that officer Juriss had Walker under sur-

veillance in the courtroom (Juriss, Tr. 388-390); that

Walker alone claimed that, while he was walking out of

the courtroom, “Ernest Lewis grabbed him by the arm

and said ‘Well, that’s it for you’” (Juriss, Tr. 390); and,

that Juriss’ own observations demonstrated the falsity

of Walker’s accusation:

Q. Did you observe Ernest Lewis in the court-

room?

A. Yes, str.

_ =

Q. Now, after the case was over and Young was

cut loose and the prosecution was continued against

Green, what happened? Did you observe Walker

walking out of the courtroom?

A. Yes,I did.

Q. While he was walking out did things appear

ordinary to you?

Where was Gerl while Walker was walking

A. Yes, they did.

Q. Did you see Lewis touch Walker?

A. No, sir, I didn’t.

Q. Did you see Lewis say anything to Walkert

A. No,I didn’t.

Q. Did you hear Lewis say anything to Walker?

A. No,I didn’t.

Q.

out?

A.

I am not too sure of Investigator Gerl’s loca-

tion. I was concentrating my efforts on Walker.

Q. Did you follow Walker out of the courtroom?

A. Yes, I did.

(Juriss, Tr. 389, 390)

In view of their own testimony, it is clear that the

police had no independent knowledge of any untoward

conduct directed against Walker. The alleged incident

could not amount to independent police corroboration.

It was only Walker making another accusation. It was

Walker corroborating Walker, and not “information

gathered by the arresting officer.” Draper v. United States,

358 U.S. 308 (1959). Therefore, the story of the alleged

courtroom incident did not meet the minimal require-

ments of independent police corroboration.

In any event, Walker’s accusation of Lewis provided

no corroboration of any alleged conspiracy, much less

of any involvement of respondents. The police had no

knowledge of any link between the alleged incident and

eer en

anyone else. The alleged | swis remark could never fill

that gap.

None of the police ever testified to having observed

any dangerous conduct directed against Walker at any

time, nor did Walker make such a claim with respect to

any of the respondents. There were no incidents known

to the police which corroborated the informer’s story

that Walker was in danger from respondents.

The record shows a total lack of any independent

corroboration that any conspiracy existed or that any

of the respondents were involved therein. Judge Decker

stated it well below:

The basis for the arrests of the [respondents], how-

ever, differs markedly from that of Lewis. While

Lewis was arrested upon the immediate report of

a perceived threat by a direct witness, the [respon-

dents] were connected to the purported conspiracy

only by the unverified charge of an unknown infor-

mant. In the six days since this hearsay had been

presented to the police, the law enforcement officials

had attempted no investigation of its veracity. Un-

like the case of Lewis, no new report of actual in-

criminating conduct had been brought against these

[respondents]. Aisi eat

It appears that the police initially sought the name

of the informant. This, in itself, indicates that they

were aware of the importance of confirming his re-

liability. The failure to pursue this inquiry, or to

otherwise substantiate the story indicates that the

police did not feel that the Walker hearsay justified

any immediate action. Yet it remains true that the

evidence against these [respondents] was no greater

at the time of the arrests than on September 19, when

Walker first approached the police. Lewis’ purported

threat could have no bearing upon these individuals

—

unless the story linking all the [respondents] in a

conspiracy had some independent credibility. But-

ler, et al. v. Goldblatt Bros., Inc., et al., supra, at 432

F.Supp. 1125-1126 (emphasis added).

The Seventh Cireuit agreed:

By the same token, it is equally apparent that the

officers did not have reasonable grounds for believing

the information to be reliable, since they did not un-

dertake an independent investigation to corroborate

the details of the accusations. Indeed, the [police]

had no first hand knowledge of any facts to support

a belief that the six [respondents] were engaged in

criminal activity at the time they arrested them.

Accordingly, we have no difficulty in concluding that

a reasonable man could not find that the arrests

were based on probable cause. Petitioners’ Appendix

A, at 4a-5a.

C. The Evidence, Even When Viewed Most Favorably

To The Police, Demonstrates That There Could Not

Have Been A “Reasonable Good Faith Belief” That

Probable Cause Existed For The Arrest Of Respon-

dents.

The contention of the police that the reasonableness

of the arrests should have been resolved by the jury is

without foundation. The parameters of the ‘‘good faith’’

defense have been discussed by the courts in a series

of recent decisions, including Pierson v. Ray, 368 U.S. 547

(1977); Biwens v. Six Unknown Agents, 456 F.2d 1339

(2nd Cir. 1972); Ammlung v. Chester, 355 F.Supp. 1300

(E.D. Pa. 1973); Joseph v. Rowlen, 402 F.2d 367 (7th

Cir. 1967); Boscarino v. Nelson, 377 F.Supp. 1308 (E.D.

Wise. 1974); Brubaker v. King, 505 F.2d 534 (7th Cir.

1974), and Glasson v. City of Louisville, 518 F.2d 899

(6th Cir. 1975).

—

In Brubaker, supra, the Seventh Circuit stated the rule

governing the ‘‘good faith’’ defense as follows: ‘‘there

is only a valid defense if the arrest was made both in good

faith and with a reasonable belief in its constitutionality.’’

Id., at 505 F.2d 537 (emphasis added). The recent deci-

sions make clear that the ‘‘good faith’’ defense involves

two separate ‘‘tests.’’ First, the arresting officer must

have a ‘‘reasonable belief’’ in the existence of probable

cause which is ‘‘clearly an objective and not a subjective

test.’’ Boscarino v. Nelson, supra, at 377 F.Supp. 1311

(emphasis added). Second, there must be ‘‘subjective’’

good faith on the part of the officer. Subjective good faith

alone does not, however, constitute a defense to a §1983

action, and, in the absence of a ‘‘reasonable’’ belief

(measured by the objective standard), no inquiry into

the subjective element is necessary. Glasson v. City of

Louisville, supra; Brubaker v. King, supra; Boscarino

v. Nelson, supra. Application of these principles to the

undisputed evidence demonstrates that the police met

neither test.

The police had approximately a week to investigate the

accusations and the informer, yet failed to do so. They

did not ever determine the reliability of the informer or

his ‘‘information’’ and did not even speak with him be-

fore the arrests. None of the police ever observed any of

the respondents engaged in any untoward activity, and

they never observed Walker to be in any danger. The

police had no direct knowledge of any objective data which

would support ‘‘reasonable beliefs of prudent men un-

der the circumstances’’ that the six respondents had or

were committing an offense. Boscarino v. Nelson, supra,

at 377 F.Supp. 1311. Nor did they have any second-hand

knowledge directly from an informant or anyone else

who claimed to have any first-hand knowledge respecting

the six respondents. No matter how favorably to the

police the evidence is viewed, there can be no dispute

as to their failure to meet the objective test of the ‘‘rea-

sonable, good faith belief’’ defense. Thus:

The court must conclude as a matter of law that

these arrests were not founded upon probable cause

and that the [police] could not reasonably believe

that there was probable cause for these arrests. A8

a result, the court must conclude that [the respon-

dents] Butler, Jenkins, James, Jackson, and the two

Nashes were deprived of due process of the law. But-

ler, et al. v. Goldblatt Bros., Inc., et al., supra, at

432 F.Supp. 1126 (emphasis added).

Although, in view of the above, no inquiry into subjec-

tive good faith is required, the undisputed evidence also

demonstrated that the police did not have even a sub-

jective good faith belief. This Court has held that ar-

rests made for ‘‘investigation’’ or ‘‘questioning’’ are

demonstrative of an absence of subjective good faith:

The illegality here, moreover, had a quality of pur-

posefulness. The impropriety of the arrest was ob-

vious; awareness of that fact was virtually conceded

' by the two detectives when they repeatedly acknowl-

edged, in their testimony, that the purpose of their

action was ‘‘for investigation’’ or for questioning.

« * 2

The arrest, both in design and in execution, was

investigatory. The detectives embarked upon this ex-

pedition for evidence in the hope that something might

turn up. The manner in which [the] arrest was

effected gives the appearance of having been cal-

culated to cause surprise, fright and confusion.

Brown v. Illinois, 422 U.S. 590 (1975) at 605 (em-

phasis added).

ee

Officer Juriss put the skids to any claim of subjective

good faith on the part of the police:

So, they were arrested for interrogation?

That is correct.

. * *

Was there any offense that they were arrested

for?

They were arrested for that purpose, counsel.

And not because they had committed an offense?

Not that was determined at this time.

(Juriss, Tr. 423)

PoP & PO

McDonald’s testimony was the same: ‘‘I felt . . . that

we should bring the people in for questioning. (McDonald,

Tr. 332) Kowalski testified to the same purpose:

Q. Isn’t it a fact that you arrested Butler for the

purpose of interrogation?

A. In a way I suppose you could put it that way.

I felt that, when I arrested Mr. Butler, I did

not have enough to charge him with anything.

(Kowalski, Tr. 764)

What is more, although McDonald decided to release

some of the so-called ‘‘conspirators,’’ even before others

were arrested (McDonald, Tr. 325), the arrests continued.

The reason: ‘‘I felt that . . . I may still come up with

a lead that would open up the case.’’ (McDonald, Tr. 774)

McDonald admitted, however, that he did not believe the

arrests were lawful:

Q. Was it your belief at that time that you could

arrest people and have them brought—or have

people arrested—and have them brought down to

Area 3 for the purposes of interrogation?

A. No, it was not.

(McDonald, Tr. 774)

_ ae

The foregoing admissions clearly show that the police

did not have a subjective good faith belief in the exis-

tence of probable cause and are fatal to any such claim

by them.

There was, then, no issue for the jury to resolve. The

police officers’ own testimony established that they had

neither reliable evidence to support. a reasonable belief

in the existence of probable cause under any objective

standard nor any subjective belief in the existence of

probable cause. Under the circumstances, Judge Decker

had no alternative except to direct verdicts and enter

judgments .0.v. in favor of the respondents and the

Seventh Circuit had no alternative except to affirm those

verdicts. As Mr. Justice Frankfurter wrote:

The easy but timid way out for a trial judge is to

leave all cases tried to a jury for jury determination,

but in so doing he fails in his duty to take a case

from the jury when the evidence would not warrant

a verdict by it. A timid judge, like a biased judge,

is intrinsically a lawless judge. Wilkerson v. McCarty,

336 U.S. 53 (1949) at 65.

I,

THE “SUBORDINATE OFFICER” DEFENSE WAS NOT

RAISED IN THE COURT OF APPEALS AND IS

FRIVOLOUS. |

The police argue, finally, that officers Kowalski and

Krause are immune from liability beeause the arrests

which they admitted making were carried out under the

supervision of McDonald and Juriss. Petition, at 14-15.

This argument was not urged or briefed in, and was

not considered by, the Court of Appeals. Therefore, it is

not a matter for consideration by this Court on certiorari.

— we

Tyrrell v. District of Columbia, 243 U.S. 1 (1917); Cali-

fornia v. Taylor, 353 U.S. 553 (1957); Stern & Gressman,

Supreme Court Practice (5th Ed. 1978) §6.27.

In any event, petitioners’ argument is frivolous and

predicated upon a gross misreading of Whitely v. Warden,

401 U.S. 560 (1971), a habeas corpus-warrant case in

which the liability of the arresting officer was not at

issue. Examination of the Whiteley opinion discloses that

this Court actually rejected the argument now advanced by

the police:

[A]n otherwise illegal arrest cannot be insulated from

challenge by the decision of the instigating officer

to rely on fellow officers to make the arrest.

. + *

The arresting officer [who received the radio report]

was not himself possessed of any factual data tend-

ing to corroborate the informer’s tip that [the peti-

tioner] committed the crime. Therefore, petitioner’s

arrest violated his constitutional rights . . . Id., at

401 U.S. 568-569.

Further, Krause and Kowalski were not mere recipients

of a bulletin concerning a matter with which they had

no prior connection. They were both familiar with the

case and active participants in the events leading to the

arrests as well as the actual arrests; in fact, Krause

was the very first police officer contacted by the Gold-

blatts agents nearly a week before the arrest (Krause,

Tr. 727-728), and both officers were as deeply involved

in the entire episode as McDonald and Juriss, or more so.

= we

CONCLUSION

For the reasons above stated, the police officers’ peti-

tion for a writ of certiorari should be denied.

Respectfully submitted,

JoHn CLarK HENDRICKSON

Ayrizt Moore

79 West Monroe Street

Suite 912

Chicago, Illinois 60603

(312) 782-2742

Counsel for Petitioners.

Of Counsel:

Law Offices of Ayre Moore

79 West. Monroe Street

Suite 912

Chicago, Illinois 60603

(312) 782-2742

Juty 24, 1979

6 8 8