Petition — Nix v. Sweeney

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1979

DENNIS Nix,

Petitioner,

VS.

DONALD SWEENEY, ETC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

THOMAS E. Toney, III

MARTHA A. Moopy

120 South Central Avenue

Suite 1100

St. Louis, Missouri 63105

(314) 863-6900

Counsel for Petitioner,

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

aed

INDEX

Page

Ce Seah Ge kgs 5's b 4 50 40s bv no 8 89s l

ee wb a oss) 6h bob de sven see e e's 2

EE PO er Tere ee eee eee 2

Constitutional, Statutory and Rules Provisions Involved .. 2

Comcme Srntemenmt Of the Case .. ww... cee eees 3

Argument Amplifying the Reasons Relied on for the Al-

EE 5

EE re 9

Appendix A

Opinion of Eighth Circuit U.S. Court of Appeals Filed

ee sae c es ca tyes scene's A-1

Appendix B

Opinion of Eighth Circuit U.S. Court of Appeals Filed

re A-11

Appendix C

Eighth Circuit U.S. Court of Appeals Order Dated

June 18, 1979 Denying Petition for Rehearing ....A-13

Appendix D

U.S. District Court Order Dated Jan. 27, 1977 ...... A-14

Appendix E

U.S. District Court Memorandum Dated Jan. 27, 1977 A-15

Appendix F

U.S. District Court Order Dated Aug. 19, 1976 ....A-18

CITATIONS

Cases

Briggs v. Pennsylvania Railroad Company, 334 U.S. 304

SEN ae ose Fa ea KR Oh en oes cea ee eee i

City of Cleveland, Ohio v. Federal Power Commission,

oe ee ee ey) rr

Crane Co. v. American Standard, Inc., 490 F.2d 332, 341

I, CI il ae hae 6 Sa ae oe eet

El Paso National Gas Company v. Kelly, 321 F.2d 645

Se, EE ois os aap be cans an sesades tees

Firth v. United States, 554 F.2d 990, 993-994 (9th Cir.

so RRS ere mente LS icaee aig a. as araea goes

Independent Nail & Packing Co. v. Perry, 214 F.2d 670,

ee ee I og ore dca cae se kis 09 0N Cae he

Mapp v. Ohio, 367 U.S. 643 (1961) ............cc008

Mefford v. Gardner, 383 F.2d 748 (6th Cir. 1967) ......

Paull v. Archer-Daniels-Midland Company, 313 F.2d 612

ee er ee re ey ere

Wm. G. Poe & Company v. Armour & Company, 414 F.2d

eg NS ID oo hsv hp idea d-ksis KxGiae ae ores

Ratay v. Lincoln National Life Insurance Company, 405

F.2d 286, 287-288 (3rd Cir. 1968) ................

Roth v. Hyer, 142 F.2d 227, 229 (Sth Cir. 1944) ......

Schneider v. Duggan, 364 F.2d 316 (8th Cir. 1966) ....

Thornton v. Carter, 109 F.2¢ 316 (8th Cir. 1940) .....

owe nt

28 USC. § 17541)..........

eS eee

28 U.S.C. § 1343(1), (2) and (3)

42 U.S.C. §§ 1983 and 1985(3)

eee 6 bh 8 6.8 48 2S 8 2.8.9.4 8-8

26 he 8 OO ee Ce eS OS Se @ OC

w wo Ww N

SS

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

DENNIS NIX,

Petitioner,

VS.

DONALD SWEENEY. ETC..

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

The petitioner, Dennis Nix, respectfully prays that a writ

of certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Eighth Circuit, entered

in this proceeding on May 30, 1979.

OPINIONS BELOW

There were no formal opinions of the District Court except

for the opinions of the District Court entered on defendant's

Motion for Summary Judgment. These opinions are repro-

a

duced in Appendix D, E and F to this Petition and were not re-

ported. The first opinion of the Court of Appeals is reported in

573 F.2d 998 (8th Cir. 1978). The second opinion of the Court

of Appeals is not yet reported. The opinion of the Court of

Appeals on the Petition for Rehearing In Banc is unreported.

All of these opinions of the Court of Appeals are reproduced

in Appendix A, B and C to this Petition.

JURISDICTION

The judgment of the Court below (Appendix B hereto)

was entered on May 30, 1979. A timely petition for rehearing

in banc was denied on June 18, 1979. The jurisdiction of this

Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the District Court during the second trial fol-

lowed the opinion and mandate of the Court of Appeals in 573

F.2d 998 (8th Cir. 1978) (Appendix A hereto).

2. The effect of any failure by the District Court to follow

the opinion and mandate of the Court of Appeals in 573 F.2d

998 (8th Cir. 1978) (Appendix A hereto).

CONSTITUTIONAL, STATUTORY AND RULES

PROVISIONS INVOLVED

There are no constitutional, statutory and rules provisions

involved in this Petition.

CONCISE STATEMENT OF THE CASE

The petitioner originally filed this suit in the District Court

on May 17, 1976 against three individual defendants and the

Village of Breckenridge Hills, Missouri. In his Complaint the

petitioner alleged that the respondents had unlawfully arrested

and confined him and had unlawfully seized and copied his

property and thus deprived the petitioner of his rights under

the First, Fourth, Fifth, Ninth and Fourteenth Amendments

to the Constitution of the United States. Jurisdiction of the

District Court was based on 42 U.S.C. §§ 1983 and 1985(3),

and 28 U.S.C. §§ 1331 and 1343(1), (2) and (3). Before the

first trial of the case in the District Court the District Court

dismissed the petitioner's Complaint against the Village of

Breckenridge Hills, Missouri under the basis of the Missouri

doctrine of sovereign immunity (Appendix F hereto). Before

the first trial the petitioner dismissed his Complaint against

all of the individual defendants except for Donald Sweeney.

Before the first trial the District Court entered summary judg-

ment in favor of the respondent Donald Sweeney on the un-

lawful arrest (Appendix D and E hereto). The case was tried be-

fore a jury on the unlawful search and seizure and the District

Court entered a judgment in favor of the respondent Donald

Sweeney after the jury had returned a verdict against the peti-

tioner. After a Motion for a New Trial and not a partial new trial

was filed and denied the petitioner appealed the denial of his

Motion for New Trial to the Court of Appeals. On this first ap-

peal the Court of Appeals reversed and remanded the refusal of

the District Court to grant a new trial and remanded the cause of

action for further proceedings (Appendix A hereto). Also on

the first appeal the Court of Appeals affirmed the dismissal of

the Village of Breckenridge Hills, Missouri (Appendix A hereto).

Just prior to the selection of the jury for the second trial,

the District Court ruled that the issue of the unlawful search

a yee

and seizure could not be presented to the jury. Further, the

District Court ruled that no evidence could be presented on the

‘unlawful search and seizure unless and until the jury was in-

structed as to the results of the first jury trial. The jury returned

a verdict against the petitioner on the unlawful arrest and the

District Court rendered judgment in favor of the respondent.

The petitioner’s Motion for a New Trial was denied and a

second appeal was taken to the Court of Appeals. On May

30, 1979 the Court of Appeals affirmed the judgment of the

District Court. On June 8, 1979 a Petition for Rehearing In

Banc was filed with the Court of Appeals which petition was

denied on June 18, 1979 (Appendix C hereto).

ARGUMENT AMPLIFYING THE REASONS RELIED

ON FOR THE ALLOWANCE OF THE WRIT

First this Court should grant this writ due to the fact that

the decision of the Court of Appeals is in direct conflict with

the holding of this Court in Briggs v. Pennsylvania Railroad

Company, 334 U.S. 304 (1948) which held that “an inferior

court has no power or authority to deviate from the mandate

issued by an appellate court.”

Here there is no doubt that the District Court on the second

trial did not follow the opinion and mandate of the Court

of Appeals in the first appeal. First this is due to the fact that

the petitioner in his first Motion for New Trial did not ask for

a partial new trial because the District Court erred in granting

a partial summary judgment on the unlawful arrest issue but

instead asked for a complete new trial. Second, the first ap-

peal was from the refusal of the District Court to grant a

complete new trial. Third, is the express language by the

Court of Appeals in its first opinion:

“The District Court granted a motion to dismiss the de-

fendant Village of Breckenridge Hills because of the Mis-

souri doctrine of sovereign immunity. The District Court

also granted partial summary judgment for defendant Don-

ald Sweeney, Acting Chief of Police, because of its view

that the arrest was made with probable cause. A jury

determined the remaining issues against Nix. He appeals

from the refusal of the District Court to grant his mo-

tion for a new trial. We reverse and remand.

The District Court denied all relief. Nix appeals, pri-

marily complaining of the dismissal of the Village because

of the Missouri sovereign immunity doctrine and the grant-

ing of summary judgment on the issue of probable cause

for the arrest. We consider these points separately.

a

Thus, consistent with the Eighth Circuit’s position in Gior-

dano, summary judgment pursuant to Fed. R. Civ. P. 56

was precluded and the issue of whether probable cause

existed for plaintiff Nix’s arrest should have been sub-

mitted to the jury.

Judgment reversed and remanded for further proceedings.”

(Appendix A hereto).

In Roth v. Hyer, 142 F.2d 227, 229 (Sth Cir. 1944), the

Court stated.

“Generally when a case is reversed and remanded for fur-

ther proceedings, it goes back to the trial court and there

stands on the issues as if the former trial had not taken

place. In the absence of any direction limiting the new

trial to particular issues the whole case is tried anew, in

pursuance of the principles of law disclosed in the opin-

ion of the appellate court, which must be regarded as the

law of the case on the second trial. 3 Am Jur, Appeal and

Error, § 1240.”

Also in its opinion on the second appeal the Court of Appeals

recognized the fact that’the District Court did not follow its

opinion and mandate que to the fact that the Court of Appeals

affirmed the judgment of the District Court solely upon the basis

that “while the plaintiff is entitled to have his case decided by

a jury, the defendant is also entitled to a conclusion of this

litigation” (Appendix B).

During the second trial the District Court did not allow any

evidence as to the illegal search and seizure to be presented

to the jury so that the jury could find the respondent liable of

an illegal search and seizure due to the unlawful arrest. In

Mapp v. Ohio, 367 U.S. 643 (1961) this Court held that a

search and seizure not incident to a lawful arrest was unlawful.

Further during the second trial the petitioner by introducing

evidence of the search and seizure could have argued that the

— aan

arrest was not made with probable cause due to the fact that

the reason for the arrest along with the other factors showing

no probable cause was for the reason of conducting the search

and seizure.

By not allowing evidence as to the search and seizure the

District Court clearly did not follow the mandate and opinion

of the Court of Appeals in the first appeal and thus the Court

of Appeals on the second appeal erred in affirming the judgment

of the second trial by not following this Court’s decision in

Briggs v. Pennsylvania Railroad Company, 334 U.S. 304

(1948).

Second this Court should grant this writ due to the fact

that the Circuit Court of Appeals have consistently followed

the opinion of this Court in Briggs v. Pennsylvania Railroad

Company. In Wm. G. Poe & Company v. Armour & Com-

pany, 414 F.2d 862, 865 (Sth Cir. 1969) the Court held citing

Briggs that “upon remand from an appellate court, the lower

court i limited to carrying out the directions of the mandate; it

‘has no power of authority to deviate from the mandate’. . .”

In Ratay v. Lincoln National Life Insurance Company, 405 F.

2d 286, 287-288 (3rd Cir. 1968) the Court in citing Briggs

in a footnote held that a District Court must comply strictly

with a mandate directed to it by the reviewing court, and it is

only where there is a clear-cut change in state law after the

appellate decision, which change clearly compels a different con-

clusion, that the District Court may disregard a mandate it has

received. In Mefford v. Gardner, 383 F. 2d 748 (6th Cir.

1967) the Court held that on remand it is the duty of the trial

court to execute the mandate of the appellate court precisely

according to its terms, without alteration, modification or change

in any respect. In El Paso Natural Gas Company v. Kelly, 321

F.2d 645 (10th Cir. 1963) the Court held that “upon remand

from an appellate court with a specific mandate the trial court

is limited to the imperative of the mandate and is without juris-

diction to vary or extend it.” In Crane Co. v. American Stand-

ard, Inc., 490 F.2d 332, 341 (2nd Cir. 1973) the Court cited

Briggs for holding “that a district court must carry out the man-

date of a court of appeals, even if the mardate was in error.”

In City of Cleveland, Ohio v. Federal Power Commission, 561

F. 2d 344, 346 (D.C. Cir. 1977) the Court in citing Briggs

heid that “the decision of a federal appellate court establishes

the law binding further action in the litigation by another body

subject to its authority” and “the latter ‘is without power to do

anything which is contrary to either the letter or spirit of the

mandate construed in the light of the opinion of [the] court de-

ciding the case’” . . . In Firth v. United States, 554 F.2d 990,

993-994 (9th Cir. 1977) the Court held that “when a case

has been decided by an appellate court and remanded, the

court to which it is remanded must proceed in accordance with

the mandate and such law of the case as was established by the

appellate court.” In Independent Nail & Packing Co. v. Perry,

214 F.2d 670, 673 (7th Cir. 1954) the court held that “where

a lower court has failed to comply with a mandate of a reviewing

court, compliance with such mandate may be compelled by

writ of mandamus.”

It should also be pointed out that the decision of the Court

of Appeals on the second appeal conflicts with the prior de-

cisions of this Court of Appeals. Thornton v. Carter, 109 F.2d

316 (8th Cir. 1940); Paull v. Archer-Daniels-Midland Com-

pany, 313 F. 2d 612 (8th Cir. 1963); and Schneider v. Duggan,

364 F. 2d 316 (8th Cir. 1966).

Third this writ should be granted due to the fact that the

issue presented greatly effects the federal court system of justice.

This is due to the fact that the Court of Appeals by its opinion

on the second appeal is refusing to comply with its own opinion

and mandate. All of the other cases cited in this petition except

=

for Briggs are cases in which a court of appeals was enforcing

its own mandate and opinion. Further, in Briggs the Court of

Appeals followed its own mandate and opinion and it was the

Petitioner who was attempting to attack the mandate and opin-

ion of the Court of Appeals.

CONCLUSION

For the reasons stated, a writ of certiorari should issue to

review the judgment and opinion of the United States Court

of Appeals for the Eighth Circuit.

Respectfully submitted,

THOMAS E. TONEY, III

MARTHA A. MOODY

120 South Central Avenue

Suite 1100

St. Louis, Missouri 63105

(314) 863-6900

Counsels for Petitioner,

American Civil Liberties Union

_

APPENDIX A

United States Court of Appeals

For the Eighth Circuit

No. 77-1340

is Nix,

— or Appellant Appeal from the

. visita United States Dis-

; trict Court for the

Donald Sweeney, et al., Eastern District of

Missouri

Appellees. |

Submitted: November 17, 1977

Filed: March 31, 1978

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and

HUNTER, District Judge.*

GIBSON, Chief Judge.

Dennis Nix brought this action against the Village of Breck-

enridge Hills and certain of its officials for damages and injunc-

tive relief arising out of his allegedly illegal arrest and the al-

legedly unlawful search, seizure, and photocopying of his prop-

erty. The District Court granted a motion to dismiss the de-

fendant Village of Breckenridge Hills because of the Missouri

doctrine of sovereign immunity. The District Court also granted

partial summary judgment for defendant Donald Sweeney, act-

* The Honorable Elmo B. Hunter, United States District Judge,

Western District of Missouri, sitting by designation.

—S

ing chief of police, because of its view that the arrest was made

with probable cause. A jury determined the remaining issues

against Nix. He appeals from the refusal of the District Court

to grant his motion for a new trial. We reverse and remand.

On July 5, 1974, a shooting occurred at 9799 B St. Charles

Rock Road, Breckenridge Hills, Missouri. Nix resided in the

basement of that address. The main floor served as the office

of the National Socialist White People’s Party, St. Louis Unit,

and as a bookstore, the White Power Information Center. Also

residing at the address were Allen Balogh and David Farrah.

Witnesses to the shooting reported that Farrah and another

individual had used Nix’s green 1965 Crevrolet station wagon

at the time of the shooting. Farrah and Balogh were arrested

as being the two persons involved in the crime. The automobile

was subsequently located at a parking lot with spent shell cas-

ings inside.

Nix left his place of employment when he learned of the

shooting. He went to the Village Hall where he was arrested

at 11:00 p.m., at the instance of Donald Sweeney, lieutenant

and acting chief in the Police Department of the Village of

Breckenridge Hills.

Nix was released at 6:00 a.m. on the following day without

formal charges being filed. The complaint alleged in part:

From the time of Plaintiff's arrest and imprisonment until

the time of Plaintiff's release the following morning, De-

fendants Donald Sweeney, Willard Jacobs and Gerald

Sweeney did unlawfully break in and enter upon Plaintiff's

said place of business and residence and did take there-

from all of Plaintiff's records, files, documents and other

materials of varying natures, some of which were related

to Plaintiffs business and personal affairs, and many of

a <

which were confidential records regarding Plaintiff's po-

litical organizing and political associations. The individual

Defendants: transported all said materials, documents, files

and records to the police department of the Defendant

Village of Breckenridge Hills, where all documentary ma-

terials were pinotocopied. Multiple copies of each docu-

ment were made, in order that there would be sufficient

copies of each document to convey said copies of each

said ‘document to various other law enforcement agencies.

Copies of each said document were in fact given, on the

orders of Defendants Donald Sweeney and Willard Jacobs,

to various other law enforcement agencies. Several other

copies of each document were retained by the Police De-

partment of the Defendant Village of Breckenridge Hills.

Nix brought this action asserting the defendants' had un-

lawfully arrested and confined him and had unlawfully seized

and copied his property. He claimed these acts deprived him

of his rights under the first, fourth, fifth, ninth and fourteenth

amendments to the Constitution of the United States. Jurisdic-

tion was based on 42 U.S.C. §§ 1983 and 1985(3), and 28

U.S.C. §§ 1331 and 1343(1), (2), and (3).2 Nix sought $5,-

000,000 in actual damages; a like amount in punitive damages;

a mandatory injunction requiring the return to him of “all files,

papers, documents, materials and copies thereof now in the

1 The original complaint named Donald Sweeney, individually and

as Chief of Police; Willard Jacobs, individually and as Commissioner

of Police; Gerald (Jerome) Sweeney; and the Village of Breckenridge

Hiils, Missouri, as defendants. After the Village’s motion to dismiss

was granted, Nix filed an amended complaint against the remaining

defendants. For reasons not appearing in the record on appeal, Nix

then dismissed defendants Willard Jacobs and Gerald (Jerome)

Sweeney.

2 Diversity jurisdiction was also pleaded under 28 U.S.C. § 1332,

stating, “[T]here are issues involving state law which this Court has

the jurisdiction to hear * * *.” However, the claims asserted are

actually for alleged violation of Federal statutes or the Constitution.

The plaintiff now resides in Illinois; defendants are Missouri residents.

—

possession of Defendants”; and other equitable relief. The

District Court denied all relief. Nix appeals, primarily com-

plaining of the dismissal of the Village because of the Missouri

sovereign immunity doctrine and the granting of summary judg-

ment on the issue of probable cause for the arrest. We consider

those points separately.

Summary Judgment on the Arrest

Fed. R. Civ. P. 56 provides for summary judgment “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.” In determining the

propriety of such action, the Supreme Court has stated all evi-

dence must be interpreted in the light most favorable to the

non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144,

158-59 (1970). The language of the Supreme Court indicates

the Fed. R. Civ. P. 56 summary judgment standard is quite

strict. The moving party must be entitled to judgment as a

matter of law, and has the burden of establishing the absence of

a genuine issue.

The Eighth Circuit has articulated the following guidelines

to be used in applying Rule 56: “Summary judgment is an

extreme remedy which is not to be granted unless the movant

has established his right to judgment with such clarity as to

leave no room for controversy and that the other party is not

entitled to recover under any possible circumstances.” New

England Mutual Life Insurance Co. v. Null, 554 F.2d 896, 901

(8th Cir. 1977); Robert Johnson Grain Co. v. Chemical Inter-

change Co., 541 F.2d 207, 209 (8th Cir. 1976); Percival v.

General Motors Corp., 539 F.2d 1126, 1128 (8th Cir. 1976).

The party must be entitled “to relief ‘beyond all doubt’ without

‘room for controversy.’” Williams v. Chick, 373 F.2d 330, 331

(8th Cir. 1967).

nae

— eS

In order to prevail on summary judgment in a false arrest

case, the evidence, including admitted facts and disputed facts

viewed in the light most favorable to the plaintiff, in the knowl-

edge of the police officer ordering the arrest, must conclusively

establish probable cause. See Giordano v. Lee, 434 F.2d 1227

(8th Cir. 1970), cert. denied, 403 U.S. 931 (1971). Conflicting

evidence on any issue would make that issue a jury question.

The Supreme Court discussed probable cause for arrest in

Beck v. Ohio, 379 U.S. 89 (1964). Probable cause exists if

the facts and circumstances within [the enforcement offi-

cers’] knowledge and of which they had reasonably trust-

worthy information were sufficient to warrant a prudent

man in believing that the petitioner had committed or was

committing an offense.

379 U.S. at 91. Probable cause for arrest, then, includes two

aspects: first, that a crime has been committed, and, second,

that the accused more probably than not participated in it.

In Linn v. Garcia, 531 F.2d 855 (8th Cir. 1976), a civil

rights action involving a claim of false arrest, the Eighth Cir-

cuit held that each case involving the question of probable cause

for arrest must be decided on its own facts. The court further

noted: “Where the facts are in dispute or where they are subject

to different inferences the question of probable cause is for the

jury; however, where the facts are not disputed or are susceptible

to only one reasonable inference, the question is one of law for

the court.” 531 F.2d at 861.

This position had been enunciated several years earlier in

Giordano v. Lee, supra. Citing cases from the Third, Ninth

and Tenth Circuits, the court stated: “Our research also leads

us to conclude that in civil rights actions of this nature [false

arrest], where a genuine issue of fact on the existence of probable

cause for arrest is presented, the question should be submitted

—_* =

to the jury.” 434 F.2d at 1230. The court further clarified

the guidelines to be used in determining whether a jury ques-

tion existed: “Where the supporting evidentiary matter of the

moving party reveals ‘unexpected gaps’ or where the truth is

not certain, the movant has not sustained the burden of demon-

strating the absence of genuine issue of fact.” 434 F.2d at 1231.

In holding the issue of probable cause was a jury question,

Giordano discussed a reasonableness standard: “We think that

the evidence adduced * * * coupled with the inferences there-

from, was such that reasonable minds could differ as to

whether or not the officers acted in good faith and with probable

cause.” 434 F.2d at 1231-32.

In applying the two-pronged Beck standard to the current

case, it is clear that the officer ordering Nix’s arrest knew a

crime had been committed. However, it is not clear that the

officer was prudent in his belief that Nix had committed it.

According to Donald Sweeney’s affidavit, he knew that two

shootings had taken place on July 5, 1974. Witnesses stated two

men had participated in the first shooting and identified one

of those men. Witnesses stated further that a car, known to be

owned by the plaintiff, had been seen when the first shooting

occurred. Two men were arrested but the car was not found

in the area. The car was later located at a parking lot “not at

police station” with spent casings inside. The plates on the

car in question were issued to Dennis Nix. Dennis Nix was at

the police station. Knowing all this information, defendant Don-

ald Sweeney ordered Nix’s arrest.

In addition to the above information, consistent with Fed. R.

Civ. P. 56, in granting summary judgment in the present case

the trial court must have considered the affidavits of Nix him-

self and of Les McCullum, the officer who arrested Nix. While

— > jon

Nix’s affidavit is of limited value, since the information con-

tained therein would not have been known to Sweeney at the

time he ordered the arrest, McCullum’s is significant. McCul-

lum’s affidavit states one of Sweeney's own officers had told

Sweeney that Nix had been at work at the time of the shouting.

In addition, Sweeney knew that Nix had gone to the police

station. Nix’s behavior in voluntarily going to the police station,

leaving three times to make phone calls, and returning and re-

maining in the vicinity for approximately one hour prior to

his arrest, can be viewed as inconsistent with participation in

the offense charged. Sweeney also knew only two people were

present in the car at the time of the shooting and that two people

had already been arrested, one of whom had been identified.

In the language of Giordano, the above information indicates

“the truth is not certain.” Since the record in this case established

that the evidence, coupled with inferences therefrom, creates a

question as to whether or not defendant’s acts were warranted,

it cannot be said as a matter of law that probable cause existed

for the arrest. Thus, consistent with the Eighth Circuit’s position

in Giordano, summary judgment pursuant to Fed. R. Civ. P.

56 was precluded and the issue of whether probable cause existed

for plaintiff Nix’s arrest should have been submitted to the

jury. Giordano v. Lee, 434 F.2d 1227 (8th Cir. 1970). See

also, Jaroslawicz v. Seedman, 528 F.2d 727 (2d Cir. 1975).

Dismissal of the Village

The Supreme Court held that municipalities are immune

from suit under 42 U.S.C. § 1983 in Monroe v. Pape, 365 U.S.

167 (1961). See City of Kenosha v. Bruno, 412 U.S. 507

(1973); Owen v. City of Independence, 560 F.2d 925 (8th

Cir. 1977). Thus, the dismissal of the Village of Breckenridge

Hills as a defendant in the § 1983 action was proper.

This complaint also alleges jurisdiction under 28 U.S.C. §

1331. An action against a municipality for violation of con-

— A-8 —

stitutional rights guaranteed by the fourteenth amendment may

be properly brought under 28 U.S.C. § 1331 if the claim

involves the deprivation of substantial constitutional rights and

the amount in controversy exceeds ‘the requisite $10,000

amount.®

The “1983 immunity” requiring defendant to be a person

is not present in § 1331. However, the defense of sovereign

immunity is not waived by § 1331; under many circumstances

it remains to bar recovery from governmental units. Smith v.

Grimm, 534 F.2d 1346, 1351 n.6 (9th Cir. 1976); Twin Cities

Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370

F.2d 531-32 (8th Cir. 1967); Dicke v. Cheyenne-Arapaho

Tribes, Inc., 304 F.2d 113 (10th Cir. 1962); Anderson v.

United States, 229 F.2d 675 (Sth Cir. 1956).

The above cases involved the immunity of the Federal Gov-

ernment, its agencies, or Indian tribes under its protection. The

availability of sovereign immunity as a defense on the part of

state and local governments in § 1331 suits has not been fully

resolved. In Panzarella v. Boyle, 406 F. Supp. 787 (D.R.I.

1975), the court carefully considered this issue. 406 F. Supp.

at 797, n.14. It concluded that even if State law of sovereign

immunity were recognized, the defendant School Committee

enjoyed no State-conferred immunity.

Last year a panel of this court considered this issue in Owen

v. City of Independence, 560 F.2d 925, 934 (8th Cir. 1977).

A divided panel concluded that Federal law governed claims

under § 1331 and, “contrary state immunity defenses cannot,

* It is difficult to assess the monetary value of constitutional rights

claims. The sum claimed by the plaintiff in good faith at the time of

filing must ordinarily be accepted. While plaintiff's claim in this case

seems excessive on its face, thai fact does not render it insufficient to

meet the constantly eroding jurisdictional figure of $10,000. Thus,

the claim is sufficient to establish jurisdiction under § 1331.

— >

consistent with the Supremacy Clause, protect the City.” The

divided panel also held “that the action of the City of Independ-

ence deprived Owen of liberty without due process of law * * *.”

560 F.2d at 937. That panel of this court was primarily con-

cerned with allegedly false statements by a member of the city

council made at a public council meeting. The council re-

solved that the investigative reports on Owen be referred to the

county prosecutor for presentation to the grand jury. 560 F.2d

at 936. The Owen court was dealing with a situation where the

official actions of the city council allegedly harmed the plaintiff.

560 F.2d at 937.

By contrast, the present case involves alleged vicarious lia-

bility of the Village under the theory of respondeat superior.

In keeping with the Owen decision, the question we must con-

sider is whether Federal common law under § 1331 should

recognize sovereign immunity for municipalities in cases of

respondeat superior liability. After balancing the uncertain

benefits of the respondeat superior doctrine against the certain

encroachment on limited local government revenues, we con-

clude that Federal law should incorporate State principles in

this area.* /

4 Owen recognized that different issues would be involved in suits

for monetary judgments based on varcious liability. 560 F.2d at 933,

n.9. It suggested that the scope of the Federal remedy might not in-

clude vicarious liability. See Rizzo v. Goode, 423 U.S. 362, 377

(1976) (recognizing that “important considerations of federalism are

additional factors weighing against” granting relief).

Finally, we must consider whether the District Court erred

in its determination that the claim alleged by Nix was in fact

barred by the Missouri doctrine of sovereign immunity. Nix’s

only argument to avoid the doctrine is that his claim was for

personal injury and property damage and thus within the

— A-10 —

exception of Mo. Rev. Stat. § 71.185 (1969),° if the Village

carried liability insurance. Nix asserts the District Court should

have taken as true Nix’s averment that the Village had insur-

ance. We will assume that the common-law torts of false arrest

and trespass to chattels would involve personal injury and prop-

erty damage under Mo. Rev. Stat. § 71.185 (1969). However,

construing the complaint most favorably to Nix, we are still

left with the fact that he seeks damages for violations of Fed-

eral statutes and the Constitution, rather than Missouri tort

law.® Here the exception does not apply and the claim against

the municipality is barred. We affirm the dismissal of the

Village of Breckenridge Hills.

Judgment reversed and remanded for further proceedings.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

5 Mo. Rev. Stat. § 71.185 (1969), provides in part:

1. Any municipality engaged in the exercise of governmental

functions may carry liability insurance and pay the premiums

therefor to insure such municipality and their employees against

claims or causes of action for property damage or personal in-

juries, including death, caused while in the exercise of the gov-

ernmental functions, and shall be liable as in other cases of torts

for property damage and personal injuries including death suf-

fered by third persons while the municipality is engaged in the

exercise of the governmental functions to the extent of the in-

surance so carried.

6 McArthur v. Pennington, 253 F. Supp. 420 (E.D. Tenn. 1963),

is similar to the present case in that municipal sovereign immunity

was alleged to have been waived by the existence of liability insur-

ance. court there found waiver had occurred to the extent of

the policy limits. McArthur is distinguishable from the present case

because ihe City’s liability in that case was based on State law, an

issue noi present in Nix’s complaint.

— A-11 —

APPENDIX B

United States Court of Appeals for the Eighth Circuit

No. 78-1885

Dennis Nix, aes ‘

Appellant, | “*P rom the

Vv. sont United States Dis-

> trict Court for the

Donald Sweeney, et al., os District of

Appellees. } ~ S0U"

Submitted: May 15, 1979

Filed: May 30, 1979

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and

MacLAUGHLIN, District Judge.*

GIBSON, Chief Judge.

Plaintiff Dennis Nix appeals from the judgment of the Dis-

trict Court! dismissing his cause of action after a jury verdict

in favor of the defendants. Nix contends that the District Court

did not follow a prior opinion of this court, Nix v. Sweeney,

573 F.2d 998 (8th Cir. 1978), which reversed in part an earlier

judgment in this case and remanded the matter to the District

Court for further proceedings. After carefully considering the

parties’ briefs and the record, we affirm.

* The Honorable Harry H. MacLaughlin, United States District

Judge, District of Minnesota, sitting by designation.

' The Honorable James H. Meredith, Chief Judge, United States

District Court for the Eastern District of Missouri.

— A-12 —

This case involves claims that the defendants violated the

constitutional rights of Dennis Nix by arresting him and search-

ing, seizing. and copying his property. The facts are adequately

set forth in our earlier opinion. At that time the District Court

held Nix’s arrest by Sweeney and other police officers was

based on probable cause and was lawful. Therefore it granted

summary judgment on that issue and submitted only the issues

regarding the search and seizure to the jury. The jury found

for the defendants. We reversed because conflicting evidence of

probable cause for an arrest is a matter for the jury to weigh

and not a matter for resolution by summary judgment. Nix v.

Sweeney, 573 F.2d 998 (8th Cir. 1978); Linn v. Garcia, 531

F.2d 855 (8th Cir. 1976); Giordano v. Lee, 434 F.2d 1227

(8th Cir. 1970).

On remand, the District Court limited the second jury trial

to the issues involving the arrest and excluded or limited evi-

dence concerning the search and seizure. The jury found for

the defendants, implicitly concluding that probable cause ex-

isted for the arrest.

It is clear that all possibilities for recovery have now been

logically foreclosed by the two jury verdicts. The latest jury

trial resulted in a finding that the arrest was lawful. The earlier

jury trial resulted in a finding that Nix was not entitled to re-

cover after the District Court had ruled that the arrest was

lawful. There is no factual issue remaining for decision. While

the plaintiff is entitled to have his case decided by a jury, the

defendant is also entitled to a conclusion of this litigation.

Judgment affirmed.

A true copy.

Attest: /s/ ROBERT C. TUCKER

Clerk, U. S. Court of Appeals, Eighth Circuit.

— A-13 —

APPENDIX C

United States Court of Appeals for the Eighth Circuit

No. 78-1885 September Term, 1978

Dennis Nix, 7

Appellant, Appeal from the United

vs. States District Court for

. f the Eastern District

Donald Sweeney, etc., of Missouri.

Appellee. |

The Court having considered petition for rehearing en banc

filed by counsel for appellant and, being fully advised in the

premises, it is ordered that the petition for rehearing en banc

be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

June 18, 1979

—s

APPENDIX D

United States District Court, Eastern District

of Missouri, Eastern Division

Dennis Nix, E

Plaintiff,

re - No. 76-439 C (1)

Donald Sweeney, et al.,

Defendants. }

ORDER

(Filed January 2, 1977)

A memorandum dated this day is hereby incorporated into

and made a part of this order.

IT IS HEREBY ORDERED that defendant’s motion for

summary judgment be and is granted only with regard to plain-

tiffs claim against him for illegal arrest.

IT IS FURTHER ORDERED that defendant’s motion for

summary judgment on the remainder of plaintiff's claims be

and is denied.

Dated this 27th day of January, 1977.

/s/ J. H. MEREDITH

United States District Judge

—< oe

APPENDIX E

United States District Court

Eastern District of Missouri

Eastern Division

Dennis Nix, i

Plaintiff,

vs.

r No. 76-439 C (1)

Donald Sweeney, et al.,

Defendants. )

MEMORANDUM

(Filed January 27, 1977)

This matter is before the Court on defendant’s nm otion for

summary judgment. For the reasons stated below, the mo-

tion will be granted in part and denied in part.

Plaintiff has brought this civil rights action in an amended

complaint against Donald Sweeney, duly appointed and acting

Lieutenant and acting Chief of Police of the Village of Brecken-

ridge Hills, Missouri, pursuant to 28 U.S.C. § 1331, 28 U.S.C.

§ 1332, and 28 U.S.C. § 1343(1), (2), (3). Plaintiff alleges that

at about eleven o’clock p.m., on July 5, 1974, he was falsely

arrested on the defendant’s order without probable cause and

without a warrant. He claims that he was held until about six

o’clock a.m. the following morning; that during that period he

was not taken before a judge, court, or magistrate; that he was

not permitted to make bail, post bond, or be released on his

Own recognizance; and that he was not permitted to contact

— A-16 —

his family, friends, attorney, or any other person. The plain-

tiff contends that at no time was he charged with any crime,

but states in his affidavit that he was charged with assault with

intent to commit murder. Further, the plaintiff alleges that

while he was incarcerated, the defendant, and others, illegally

entered upon plaintiff's place of business and residence, took all

of plaintiff's records, files, documents, and other materials;

transported these materials to the Village of Breckenridge Hills

Police Department; made several photocopies of each item;

sent copies of the material to various law enforcement agencies;

and then returned some of the materials to plaintiff's place of

business and residence. Plaintiff contends some of the materials

taken were records of the National Socialist White People’s

Party, St. Louis Unit, a political organization of which plain-

tiff was a member. Plaintiff claims that the acts of the de-

fendant were done willfully, knowingly, and with the specific

intent to deprive plaintiff of his constitutional rights, and that

the plaintiff was deprived of his rights guaranteed him by the

First, Fourth, Fifth, Ninth, and Fourteenth Amendments to

the United States Constitution, and by 18 U.S.C. § 245, 42

U.S.C. § 1983, and 42 U.S.C. § 1985(3).

Defendant has moved for summary judgment, contending

that no material issues of fact remain in this matter. The un-

disputed facts show that on July 5, 1974, plaintiff resided at

9799(b), St. Charles Rock Road; that the basement of plain-

tiff's residence served as plaintiff's living quarters, and the main

floor served as a bookstore and as the office of the National

Socialist White Peoples’ Party, St. Louis Unit; that Allen Balogh

and David Farrah a/k/a David Miller, were also residing at

the said address; and that the plaintiff owned a green 1965

Chevrolet Station Wagon. On July 5, 1974, a double shooting

took place at said address, Balogh and Farrah were arrested as

suspects, and several witnesses reported that said auto had been

used by Farrah and another person when the shootings oc-

curred. Defendant knew that the plaintiff owned the auto in

question; therefore, when Balogh and Farrah were arrested

— x

and the auto was not found in the immediate area, the defend-

ant suspected that plaintiff was in possession of it. Shortly

thereafter, the auto was discovered, and spent casings were

found therein. The defendant was aware of all the foregoing;

thus, when he was informed by radio that plaintiff was at the

Village of Breckenridge Hills Police Department, the defendant

ordered that the plaintiff be arrested and charged with assault

with intent to commit murder.

It was held in State v. Robinson, 484 S.W.2d 186, 189 (Mo.

1972), that probable cause for an arrest without a warrant

exists if the arrest:

oe

. . was based upon information possessed by the officers

which constituted reasonably trustworthy information of

facts and circumstances sufficient to warrant a man of

reasonable caution to believe that offenses had been com-

mitted and reasonable ground for belief that the person

arrested was guilty.”

Surely, the facts presented herein would warrant a man of rea-

sonable caution to believe that a shooting had taken place, and

that the plaintiff was guilty. Accordingly, as a matter of law,

defendant did have probable cause to order plaintiff's arrest.

Therefore, the defendant’s motion for summary judgment will

be granted with regard to plaintiff's claim that he was arrested

without probable cause.

Many issues as to material facts are presented with regard

to the circumstances surrounding the defendant's allegedly il-

legal search and seizure. Accordingly, except as otherwise pro-

vided herein, defendant’s motion for summary judgment will

be denied. Giordano v. Lee, 434 F.2d 1227 (8th Cir. 1970),

cert. denied, 403 U.S. 931 (1971).

Dated this 27th day of January, 1977.

/s/ J. H. MEREDITH

United States District Judge

— A-18 —

APPENDIX F

United States District Court, Eastern District

of Missouri, Eastern Division

Dennis Nix, >

Plaintiff,

VS. - No. 76-439 C (1)

Donald Sweeney, et al.,

Defendants. |

ORDER

(Filed August 19, 1976)

IT IS HEREBY ORDERED that plaintiff's motion for de-

fault judgment against defendants Village of Breckenridge Hills

and Donald Sweeney be and is denied. F.R.Civ.P. 12(a).

IT IS FURTHER ORDERED that plaintiff's motion to dis-

miss the motions to dismiss of defendants Village of Brecken-

ridge Hills and Donald Sweeney be and is denied.

IT IS FURTHER ORDERED that the separate motions of

defendants Jerome Sweeney, Donald Sweeney, and Willard

Jacobs to dismiss for failure to state a claim be and are denied.

IT IS FURTHER ORDERED that the separate motions of

defendants Jerome Sweeney, Donald Sweeney, and Willard

Jacobs to strike and for a more definite statement be and are

granted as follows: The portion of plaintiff's complaint denom-

inated as “Introduction” is stricken. Plaintiff is given leave to

henna

—* po

file an amended complaint incorporating a short and plain

statement of his allegations against each individual defendant

within thirty days from the date of this order. If not so

amended, plaintiff's complaint will be dismissed.

IT IS FURTHER ORDERED that the separate motion of

defendant Village of Breckenridge Hills to dismiss be and is

granted. Plaintiff does not have a claim under 42 U.S.C. §§

1983 and 1985(3), since the municipal corporation is not a

person within the meaning of those statutes. City of Kenosha

v. Bruno, 412 U.S. 507 (1973); Monroe v. Pape, 365 U.S.

167 (1961). Although a claim can be maintained against a

municipal corporation directly under the Fourteenth and other

Amendments, with jurisdiction based on 28 U.S.C. §1331, as

long as the requisite jurisdictional amount is met, see Williams

v. Brown, 398 F.Supp. 155 (N.D.IIl. 1975); Maybanks v. In-

graham, 378 F.Supp. 913 (E.D.Pa. 1974), plaintiff's claim

against the village must be dismissed since under Missouri law,

municipal corporations are immune from liability for torts aris-

ing out of acts performed by their officers and employees in the

exercise of a governmental function. Varnal v. Kansas City,

481 S.W.2d 575, 580 (Mo.App. 1972).

Dated this 19th day of August, 1976.

/s/ J. H. MEREDITH

United States District Judge