Petition — Allen v. McCurry

r Supreme Court, U. &

FILED

DEC 44 1979

f

3 >

IN THE

Supreme Court of the United States

OcTOBER TERM, 1979

No. #9-935

MARVIN ALLEN, STEVEN JACOBSMEYER and

UNKNOWN POLICE OFFICERS,

Petitioners,

VS.

WILLIE McCurry,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JACK L. KOEnR,

City Counselor

JOHN J. FITZGIBBON,

Associate City Counselor

ROBERT H. DIERKER, JR.

Assistant City Counselor

Room 314 City Hall

St. Louis, Missouri 63103

(314) 622-3361

Attorneys for Petitioners

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

a ad

TABLE OF CONTENTS

COE: OW ai a isd ns Sd vp aes eee

I iid i cks eneel tk ieee eee

Questions Presented for Review ..........ccececccees

Constitutional Provisions and Statutes Involved.......

eens OF UG 6 icin oda chs udae nese eee

Reasons for Granting the Petition ...................

a

II.

Il.

The petition ought to be granted because the

questions of federal law presented herein are

of serious national importance and must be

sottios Uy thie COU ws icc casencceeeee was

The petition ought to be granted because the

decision of the Court of Appeals is in direct

conflict with the overwhelming weight of

authority in the other circuits ..............

The petition ought to be granted because the

questions presented herein have been decided

by the Court of Appeals for the Eighth Cir-

cuit in a manner which conflicts with other

decisions of that court and also with decisions

of the Samoans COME oa. cc ced uiaWenaans

a nee Rees Sylogh Kou ky irr es Sa ter

Appendix A - Memorandum and Order of the District

Coust, Gamaber SB, TOI: «vind Gaduneceinaeeeee

15

ii

Appendix B - Opinion of the Court of Appeals for the

Eighth Circuit, October 1, 1979. .......ccseceee A-4

Appendix C - Opinion of the Missouri Court of Ap-

peals, Eastern District, August 14, 1979.......... A-13

Appendix D - Complaint filed in District Court........ A-21

Appendix E - Defendants’ Motion to Dismiss and

Motion for Partial Summary Judgment, with

Appendix F - Plaintiff’s Motion for Summary Judgment A-30

Cases Cited

Adickes v. S.H. Kress & Co., 398 U.S. 144(1970)...... 9

Bivens v. Six Unknown Federal Narcotics Agents, 403

I dike op thse sh ekan Oaperereens 13

Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313 (1971) ......... 9,19

Brazzell v. Adams, 493 F.2d 489 (Sth Cir. 1974) ....... 17

Brubaker v. King, 505 F.2d 534 (7th Cir. 1974)........ 9, 13,15

California v. Minjares, ___ U.S. ___., 100 S.Ct. 9

oo a sie 6a Keene eos hee eee 13

Curtis v. Tower, 262 F.2d 166 (6th Cir. 1959).......... 15

Ellis v. Dyson, 421 U.S. 426 (1975) .................. 19

Emich Motors Corp. v. General Motors Corp., 340

hin a heed kh eau ten wae oes 19

Entick v. Carrington, 19 State Trials 1030 (1765) ...... 8

iii

Fernandez v. Trias Monge, 586 F.2d 848 (Ist Cir.

BN 50x dees sea Sen ON tin ae eS 12

Firnhaber v.Sensenbrenner, 385 F.Supp. 406 (E.D. Wis.

PC a ates he sc aGe it Gale ceehy ah os Wine’ 9

Frank v. Mangum, 237 U.S. 309 (1915)............... 8,19

Goodrich v. Supreme Court of South Dakota, 511 F.2d

FO SU wk eV edi cen ucuneaneacviees 17,18

Grubb v. Public Utilities Comm., 281 U.S. 470 (1930) .. 8,19

Hunter v. Clardy, 558 F.2d 290 (Sth Cir. 1977) ........ 9

Jenson v. Olson, 353 F.2d 825 (8th Cir. 1965) ......... 17,18

Jones v. Bales, 58 F.R.D. 453 (M.D.Ga. 1972), aff’d,

MOR er tO. TOT a ice ccee thd eewehens 17

Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert.

denied, 400 U.S. 846 (1970) ............000. 15,16,18,19

Kingston’s (Duchess) Case, 1 East, P.C. 468, 20 State

Trials 355, 168 Eng.Rep. 175 (1776) ............. 8

Koger v. Guarino, 412 F.Supp. 1375 (E.D.Pa. 1976),

OFS’ a, SER FOG THe CaO Ge TOT ae vic vctccvccses 9

LaRose v. Casey, 570 S.W.2d 746 (Mo.App. 1978)..... 12

McNally v. Pulitzer Pub. Co., 532 F.2d 69 (8th Cir.),

cert. denied, 429 U.S. 855 (1976). ............... 18

Martin v. Delcambre, 578 F.2d 1164 (Sth Cir. 1978) .... 15

Mastracchio v. Ricci, 498 F.2d 1257 (ist Cir. 1974),

cert. Genied, 420 U.S. 909 (1975)... 6 whee cence 9,15,16

iV

Meadows v. Evans, 550 F.2d 345 (Sth Cir. banc), cert.

Gated, GIG 17D, FE GIGT TD vik vce cv ecasccccces'n 17

Metros v. United States District Court, 441 F.2d 313

GRE SEIN co let iw alew a cwuh sc kew hee ooh) vO

Mincey v. Arizona, 437 U.S. 385 (1978) .............. 13

Monell v. Dept. of Social Services, 436 U.S. 658, 17

Peet CN TRO NTED os kn ckda ban celeb edewehenne 10

Monroe v. Pape, 365 U.S. 167 (1961) ................ 14

Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968).... 15

Ney v. California, 439 F.2d 1285 (9th Cir. 1971) ....... 15

Norwood v. Parenteau, 228 F.2d 148 (8th Cir. 1955),

Gout. GOAN, Sar U.S. FSS CIS «oc ie cciecdecess 17

P I Enterprises, Inc. v. Cataldo, 457 F.2d 1012,

I I eh aca a hee ee a 8

Palma v. Powers, 295 F.Supp. 924(N.D.IIl. 1969) .. 8,12,15,17

Pierson v. Ray, 386 U.S. 547 (1967) ........c ccc ecees 9,12,14

Preiser v. Rodriguez, 411 U.S. 475 (1973)............. 15,19

Pritz v. Hackett, 440 F.Supp. 592 (W.D.Wis. 1977) .... 9

Rimmer v. Fayetteville Police Dept., 567 F.2d 273

SPR aa bas a's ss sek RARGRARES eke woh eed. 9,15,16

Robb v. Connolly, 111 U.S. 624 (1884). .............. 8,19

Robbins v. District Court of Worth City, 592 F.2d

RE ee Merny pay Ra eae ee 17,18

Rodriguez v. Jones, 473 F.2d 599 (Sth Cir.), cert.

GE, GES Vids DOS CET OD wc c ic vccccccccececsse 9

Rosenberg v. Martin, 478 F.2d 520 (2d Cir.), cert.

Wane, SEAS. GIRO hs de asnknccddsenwen’s :

Sealfon v. United States, 332 U.S. 575 (1948) ......... 19

Shank v. Spruill, 406 F.2d 756 (Sth Cir. 1969) ......... 17

Smith v. Sinclair, 424 F.Supp. 1108 (W.D.Okla. 1976).. 15,17

Stone v. Powell, 428 U.S. 465 (1976). ................ » a

6,7,8,10,11,13,16

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

ED kos 'o Ne op snd ce diskeceenkeuneeenne seen 14

Thistlethwaite v. City of New York, 497 F.2d 339 (2d

Cir.), cert. denied, 419 U.S. 1093 (1974) ........ 10,15,16

United States v. Calandra, 414 U.S. 338 (1974) ........ 6

Weeks v. United States, 232 U.S. 383 (1914) .......... 8

Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972) ...... 15

Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978) ......... 9,11,15

Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W.

EE sc oe 0s 605 ea eee ee 10

Constitutional Provisions and Statutes Cited

ie RS Bee er es 2,

8,9,10,13,15

Rr AMNOR, PGR. TEs GE. as fav a's cawak bin wdmdene 3

ct SR Ss enw decds CaaWaddee eb eneeees 2

EE 6 Acs vasb a0 nscuensdasneeneaee a 4

ee ETE sh eke ie Ke hweskeandcanae tee 2,3,11,12

vi

EGE Chie ks baba een Gn oes Cede SHAE RERTN 2

et Fa | aed eee Pe ee ree eye y a

3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19

Other Authorities Cited

Administrative Office of the United States Courts,

PTD PUNE ONE ok cae cwedcbneniatencws 10

DU, TPT PME TONE ong cic a cc cgencecnscces 10

Theis, Res Judicata in Civil Rights Act Cases: An

Introduction to the Problem, 70 Nw.L.Rev. 859

dose BAe aes Macnee Cakes Bae eae Bae 14-15

Vestal & Coughenour, Preclusion/Res Judicata Vari-

ables: Criminal Prosecutions, 19 Vand.L.Rev. 683

Siew inks Ginee wns daccunn ek tone ewe ara 7,8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

MARVIN ALLEN, STEVEN JACOBSMEYER and

UNKNOWN POLICE OFFICERS,

Petitioners,

VS.

WILLIE McCurry,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Come now Marvin Allen, Steven Jacobsmeyer, and

‘‘unknown police officers’’, Petitioners herein, and respectfully

pray that a writ of certiorari be issued to review the judgment of

the United States Court of Appeals for the Eighth Circuit

entered in this case on October 1, 1979.

OPINIONS BELOW

The opinion of the District Court, filed on October 13, 1978,

is reported at 466 F.Supp. 515 and appears in Appendix A to

this Petition, post. The opinion of the Court of Appeals, 606

F.2d 795, reversing the judgment of the District Court, is

reproduced in Appendix B, post. Because the Court of Appeals

alludes to matters outside the record on appeal, and for the con-

venience of this Court, the opinion of the Missouri Court of

oa Oe

Appeals, Eastern District, 587 S.W.2d 337, affirming the con-

viction of Willie McCurry on state felony charges arising out of

matters alleged in his Complaint, is reproduced in Appendix C,

post.

JURISDICTION

The judgment of the Court of Appeals was filed on October

1, 1979, and this Petition is filed within ninety days of that date.

28 U.S.C. §2101. No rehearing was sought. The jurisdiction of

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

QUESTIONS PRESENTED FOR REVIEW

I. Whether a convicted felon is estopped to maintain an ac-

tion for damages under 42 U.S.C. §1983 on the basis of the

same claim of unlawful search and seizure which was raised, ful-

ly litigated, and adjudicated adversely to him in a prior state

criminal proceeding.

II. Whether persons bringing actions under 42 U.S.C. §1983

are barred by 28 U.S.C. §1738 or by federally formulated rules

of collateral estoppel from relitigating constitutional claims (in-

cluding Fourth Amendment claims) which have been raised, ful-

ly litigated, and decided adversely to them in prior state criminal

proceedings.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., Amdt. IV provides:

The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches

and seizures shall not be violated, and no warrants shall

issue but upon probable cause, supported by oath or affir-

mation, and particularly describing the place to be

searched, and the persons or things to be seized.

ont ee

U.S. Const., Amdt. XIV provides in pertinent part:

Section 1. All persons born or naturalized in the United

States and subject to the jurisdiction thereof are citizens of

the United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States,

nor shall any state deprive any person of life, liberty or

property without due process of law, nor deny to any per-

son within its jurisdiction the equal protection of the laws.

Section | of the Civil Rights Act of 1871 (the ‘‘Ku Klux Klan

Act’’), 17 Stat. 13, 42 U.S.C. §1983 provides:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory, subjects or causes to be subjected, any citizen of the

United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall be

liable to the party injured in any action at law, suit in equi-

ty, or other proper proceeding for redress.

The federal judicial code, 62 Stat. 947, 28 U.S.C. §1738 pro-

vides:

The Acts of the legislature of any State, Territory, or

Possession of the United States, or copies thereof, shall be

authenticated by affixing the seal of such State, Territory

or Possession thereto.

The records and judicial proceedings of any court of any

such State, Territory or Possession, or copies thereof, shall

be proved or admitted in other courts within the United

States and its Territories and Possessions by the attestation

of the clerk and seal of the court annexed, if a seal exists,

together with a certificate of a judge of the court that the

said attestation is in proper form. —

preter phe

Such Acts, records and judicial proceedings or copies

thereof, so authenticated, shall have the same full faith

and credit in every court within the United States and its

Territories and Possessions as they have by law or usage in

the courts of such State, Territory or Possession from

which they are taken.

STATEMENT OF THE CASE

Following his state conviction on one count of illegal posses-

sion of heroin and two counts of assault with intent to kill with

malice aforethought, and while his state appeal was pending (see

Appendix B, A-6), Respondent Willie McCurry, pro se,

commenced this action in the United States District Court for

the Eastern District of Missouri on July 17, 1978. The complaint

seeks damages from individual police officers ‘‘for the violation

of the U.S. Constitutional Rights of the Plaintiff.’’ (Appendix

C, A-21.) The complaint has been construed to allege that

(1) the police officers (Petitioners herein) conspired to conduct

an illegal search of Respondent’s home; (2) an illegal search of

Respondent’s home was carried out; and (3) Respondent was

assaulted after being arrested. The action is apparently brought

under 42 U.S.C. §§1983, and 1985(3), with federal jurisdiction

invoked under 28 U.S.C. §1343. (See Appendix B, A-6;

Appendix D.)

Subsequent to the filing of the Complaint, Petitioners moved

for dismissal and also for partial summary judgment as to the

claim of illegal search. The District Court granted the motion

for summary judgment, holding that Respondent was collateral-

ly estopped to litigate the legality of the search because an iden-

tical claim had been presented to the state court in the criminal

prosecution and the search had been held lawful, although cer-

tain items not found in plain view had been suppressed. The

District Court also dismissed the remainder of the complaint for

reasons not here material.'

‘Petitioners do not seek review of the judgment of the Court of Ap-

peals insofar as the allegations of assault are concerned.

— po

On appeal, the Court of Appeals for the Eighth Circuit

reversed the District Court in all respects. Although the Court

of Appeals acknowledged that ‘‘the search and seizure aspect of

his [McCurry’s] claim was . . . essentially the same claim that

was litigated at the suppression hearing’’ (Appendix B, A-7),

the Court nevertheless concluded that collateral estoppel was

not available to the police officers as a defense. The basis for

this decision was stated as follows: ‘‘We conclude that because

of the special role of the federal courts in protecting civil rights

. .. and because habeas corpus is now unavailable to appellant,

see Stone v. Powell, [428 U.S. 465 (1976)], it is our duty to con-

sider fully, unencumbered by the doctrine of collateral estoppel,

appellant’s §1983 claims.’’ (Appendix B, A-10 - A-11.) In so

holding, the Court of Appeals denied that it was passing on the

general question of ‘‘whether collateral estoppel applies to

§1983 actions when the issues raised in the §1983 suit were deter-

mined adversely to the §1983 plaintiff in an underlying state

criminal trial.’’ (/d., A-17.)

aay on

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI

I. The Petition Ought To Be Granted Because the Questions

of Federal Law Presented Herein Are of Serious National Im-

portance and Must Be Settled By This Court.

A. There is a substantial likelihood that the decision of the

Court of Appeals will encourage innumerable state prisoners to

seek relitigation of claims of unlawful search and seizure

through the medium of §1983 actions, and application of

federal rules of collateral estoppel to such actions is necessary to

avoid a subversion of Stone v. Powell.

In Stone v. Powell, 428 U.S. 465 (1976), this Court held ‘‘that

where the State has provided an opportunity for full and fair

litigation of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground that

evidence obtained in an unconstitutional search or seizure was

introduced at his trial.’’ Jd., 494 (footnotes omitted). In the

course of its opinion, the Court reaffirmed that the exclusionary

rule is a judicially created remedy ‘‘ ‘designed to safeguard

Fourth Amendment rights generally through its deterrent effect

..,” id., 486, quoting United States v. Calandra, 414 U.S.

338, 348 (1974), and concluded that, in collateral proceedings,

the societal costs of the application of the exclusionary rule

significantly outweighed the deterrent effect gained thereby. 428

1J.S. 491-93. In assessing the societal costs of the rule’s applica-

tion in collateral proceedings, the Court adverted to ‘‘serious in-

trusions on values important to our system of government,”’ in-

cluding effective utilization of limited judicial resources, the

need for finality in criminal actions, minimization of friction

between state and federal judicial systems, and the maintenance

of the constitutional balance upon which federalism is founded.

TId., 491 n. 31.

=

In this case, the Court of Appeals expressed the concern that,

“if collateral estoppel is to apply in §1983 actions raising search

and seizure claims, there will be no federal forum for the victim

of a search and seizure which allegedly violates the federal con-

stitution.’’ Appendix B, A-9 - A-10. Accordingly, it proceeded to

attempt to assure availability of a federal forum by rejecting ap-

plication of collateral estoppel to the complaint of unlawful

search and seizure in this case.

It does not require clairvoyance to envisage the impact on

§1983 litigation by state prisoners if the decision of the Court of

Appeals in this case is left undisturbed. State prisoners checked

by Stone v. Powell, supra, from relitigating search and seizure

questions in federal court via habeas corpus will flock to the

District Courts with pro se complaints modeled on Respon-

dent’s herein. Police officers who have seen their actions pro-

nounced lawful by state courts will suddenly find themselves

enmeshed in civil litigation in federal courts, with the specter of

civil liability for those same actions looming large. In the mean-

time, what of the policy considerations underlying Stone v.

Powell? The Court of Appeals airily ignored them, as it ignored

this Court’s clearly expressed idea that state courts can be relied

upon to give full and fair consideration to federal constitutional

claims. See Appendix B, A-10.

Stone v. Powell, supra, must be read as standing for the pro-

position that rules of federal law fashioned by federal judges

ought to be enuniciated with an eye to fostering judicial

economy and federal-state comity, without sacrificing the in-

terests of justice. Like the exclusionary rule, res judicata and its

corollary collateral estoppel? are essentially judge-made rules,

Petitioners use the term collateral estoppel as denoting rules of

‘tissue preclusion,’’ while res judicata is intended to denote doctrines

of ‘‘claim preclusion’’. See generally Vestal & Coughenour, Preclu-

sion/Res Judicata Variables: Criminal Prosecutions, 19 Vand.L.Rev.

683 (1966).

ea

and are probably more deeply embedded in Anglo-American

jurisprudence than the exclusionary rule. See, e.g., Kingston’s

(Duchess) Case, 1 East, P.C. 468, 20 State Trials 355, 168

Eng.Rep. 175 (1776); Vestal & Coughenour, Preclusion/Res

Judicata Variables: Criminal Prosecutions, 19 Vand.L.Rev.

683, 684 notes 5-7 (collecting cases) (1966); compare Weeks v.

United States, 232 U.S. 383 (1914) with Entick v. Carrington, 19

State Trials 1030 (1765). Many of the considerations underlying

res judicata and collateral estoppel - e.g., conservation of

judicial time, preservation of respect for the administration of

justice, and prevention of harassment of litigants - also underlie

the rationale of Stone v. Powell. Compare 428 U.S. 491 n. 31

with Vestal & Coughenour, supra, 19 Vand.L.Rev. 719. Just as

the Fourth Amendment does not inherently require relitigation

of search and seizure questions in proceedings collateral to the

judgment on the merits, see Stone v. Powell, supra, 428 U.S.

486, neither does the Amendment inherently prohibit the ap-

plication of collateral estoppel in §1983 actions.

The Court of Appeals in this case seems to hold that the

nature of the Fourth Amendment rights protected by 42 U.S.C.

§1983 demands that a federal forum be available always to ad-

judicate alleged violations of those rights and forbids that state

judgments on the same issues be given preclusive effect.

However, the state courts are obligated to enforce federal law

(including the Fourth Amendment) to the same extent as the

federal courts, e.g., Grubb v. Public Utilities Comm., 281 U.S.

470 (1930); Robb v. Connolly, 111 U.S. 624, 637 (1884); P J

Enterprises, Inc. v. Cataldo, 457 F.2d 1012 (1st Cir. 1972);

Palma v. Powers, 295 F. Supp. 924 (N.D.IIl. 1969); and it is ‘‘a

fundamental principle of jurisprudence, arising from the very

nature of courts of justice and the objects for which they are

established, that a question of fact or of law distinctly put in

issue and directly determined by a court of competent jurisdic-

tion cannot afterwards be disputed between the same parties.’’

Frank v. Mangum, 237 U.S. 309, 333 (1915). Moreover, as this

ee

Court itself has remarked in another context, ‘‘The broader

question is whether it is any longer tenable to afford a litigant

more than one full and fair opportunity for judicial resolution

of the same issue.’’ Blonder-Tongue Laboratories, Inc. v.

University of Illinois Foundation, 402 U.S. 313, 328 (1971).

So long as the state courts provide an opportunity for full and

fair litigation of Fourth Amendment claims, there is no com-

pelling reason to refuse to apply sensible federal rules of col-

lateral estoppel to §1983 actions based on identical claims.’

Application of such rules would be fully in accord with the com-

mon law of torts which supplies the standards for §1983 actions,

see Pierson v. Ray, 386 U.S. 547 (1967), and many of the Courts

of Appeals have so held. E.g., Winters v. Lavine, 574 F.2d 46

(2d Cir. 1978); Rimmer v. Fayetteville Police Dept., 567 F.2d

273 (4th Cir. 1977);Mastracchio v. Ricci, 498 F.2d 1257 (Ast Cir.

‘In Brubaker v. King, 505 F.2d 534 (7th Cir. 1974), it was suggested

that collateral estoppel cannot operate to bar a claim of infringement

of Fourth Amendment rights under §1983, because the issues in a

criminal prosecution and the §1983 action are never the same: ‘‘The

test .. . under §1983 is not whether the arrest was constitutional or un-

constitutional or whether it was with or without probable cause, but

whether the officer believed in good faith that the arrest was made

with probable cause and whether that belief was reasonable.’’ 505

F.2d 536-37 (footnotes omitted). The absurdity of this position is

manifest. To recover under §1983, the plaintiff has the burden of

proving, inter alia, deprivation of a constitutional right. Adickes v.

S.H. Kress & Co., 398 U.S. 144, 150 (1970); Rosenberg v. Martin, 478

F.2d 520 (2d Cir.), cert. denied, 414 U.S. 872 (1973). If an arrest or

search is held constitutional (which is the determination necessarily

made in a suppression hearing), then the plaintiff has no claim and the

defendant need never establish the defense available to him under

Pierson v. Ray, supra. See Hunter v. Clardy, 558 F.2d 290 (Sth Cir.

1977); Pritz v. Hackett, 440 F.Supp. 592 (W.D.Wis. 1977); cf.

Rodriguez v. Jones, 473 F.2d 599 (Sth Cir.), cert. denied, 412 U.S. 953

(1973); Koger v. Guarino, 412 F.Supp. 1375 (E.D. Pa. 1976), aff’d,

549 F.2d 795 (3d Cir. 1977); Firnhaber v. Sensenbrenner, 385 F.Supp.

406 (E.D.Wis. 1974).

a. on

1974), cert. denied, 420 U.S. 909 (1975). Whether Fourth

Amendment claims should now be treated differently on ac-

count of Stone v. Powell is a question which only this Court can

answer, but the answer is, quite obviously, o.

In summary, the decision of the Court of Appeals in this case

invites state prisoners to subvert Stone v. Powell by means of 42

U.S.C. §1983, and raises serious questions about the continued

application of rules of collateral estoppel in §1983 actions based

on alleged Fourth Amendment violations. ‘‘It is for the general

welfare that a period be put to litigation.’” Womach v. City of

St. Joseph, 201 Mo. 467, 100 S.W. 443, 445 (1907); see also

Thistlethwaite v. City of New York, 497 F.2d 339 (2d Cir.), cert.

denied, 419 U.S. 1093 (1974) (§1983 was not intended to foster

career litigants). This same general welfare, as well as questions

of federalism, demands that this Petition be granted and the

judgment of the Court of Appeals be reviewed and reversed by

this Court.

B. Application of uniform federal rules of collateral estoppel

to §1983 actions will assure that meritorious claims receive

prompt, effective attention from the federal courts, while pro-

tecting law enforcement officers from the harassment and vexa-

tion of groundless civil litigation.

Writing in dissent in Monell v. Dept. of Social Services, 436

U.S. 658, 17 FEP Cases 873 (1978), Mr. Justice Rehnquist refer-

red to “‘the torrent of civil rights litigation of the last 17 years.”’

436 U.S. 724, 17 FEP Cases 897. A review of relevant statistics

suggests that this description partook of understatement. Filings

of civil rights actions in federal district courts during the period

1961 to 1973 grew from 261 to 7,679. Administrative Office of

the United States Courts, 1973 Annual Report 128. During the

fiscal years 1974 through 1978, filings of all types of actions by

state prisoners alone grew from 13,423 to 16,969. Ad-

ministrative Office of the United States Courts, 1978 Annual

re |

Report 60. During fiscal 1977 and 1978, while all categories of .

prisoner filings increased 12.2%, civil rights suits filed by

prisoners increased 25.9% to 10,366. Jd., 61. Between 1970 and

1978, civil rights complaints filed by state prisoners increased

379.3%, totaling some 9,730 in 1978. Jd., 75-76. All prisoner fil-

ings multiplied 907.1% between 1960 and 1978, while general

civil filings grew a paltry 134.1 %. Id., 77.

Petitioners recognize that it is not fashionable these days to

advance arguments based on fears of ‘‘a flood of litigation.’’

However, Petitioners’ arguments herein are not based on fear,

but on reality. It cannot be gainsaid that a development which

enhances the already monstrous volume of civil rights litigation

also enhances the risk that insufficient attention will be given to

meritorious claims by judges striving to keep dockets current, in

face of a multitude of essentially frivolous claims - especially

when both the serious and the frivolous claims are presented in

the form of pro se complaints. Such a development is presented

by the decision of the Court of Appeals in this case.

The opinion of the Court of Appeals bids fair to substantially

increase the volume of civil rights litigation by state prisoners.

The Court of Appeals professes to limit its consideration in this

case to the Stone v. Powell situation; but by refusing to give

preclusive effect to the state court judgment in this case, it not

only undermines Stone v. Powell but also casts doubt (for the

Eighth Circuit, at least) on the continued application of rules of

collateral estoppel in §1983 actions generally, regardless of the

underlying constitutional claim. See Appendix B, A-6 to

A-12.

As illustrated, for example, by Winters v. Lavine, supra‘ the

‘Winters also addressed the application of 28 U.S.C. §1738 to ac-

tions under §1983, and concluded that both the statute and general

rules of collateral estoppel barred the action there considered. 574

F.2d at 54-55. Petitioners assert that 28 U.S.C. §1738 can and should

ae ee

application of a federal rule of collateral estoppel in §1983 ac-

tions will ensure that meritorious claims will receive full atten-

tion from the federal courts, while at the same time permitting

early and economical resolution of baseless claims. State

criminal defendants will be foreclosed from relitigating con-

stitutional claims via §1983 only to the extent that they have ac-

tually litigated those claims without success in state court.

Where criminal defendants prevail in state court (or where their

constitutional claims are not reached), they will be free to

litigaie their claims in federal court. See, e.g., Palma v. Powers,

supra, 295 F.Supp. at 942 (defendant who was acquitted in state

prosecution held entitled to maintain §1983 action based on

unlawful search; convicted co-defendant held barred); cf.

Fernandez v. Trias Monge, 586 F.2d 848 (ist Cir. 1978) (no state

ruling on the merits of constitutional claim). Thus, the state

courts will be utilized as a screening mechanism, with resulting

benefits to §1983 plaintiffs and defendants alike.°

C. The continued application of the exclusionary rule in

criminal prosecutions compels the application of a federal rule

of collateral estoppel to §1983 actions based on searches and

seizures.

The operation of the exclusionary rule in criminal cases has

occasioned considerable dissatisfaction and criticism. See, e.g.,

be applied to §1983 actions when a state judgment is called in ques-

tion, and §1738 provides an additional reason for giving the state

judgment preclusive effect in this case, since Respondent McCurry’s

criminal conviction would work an estoppel under Missouri law. E.g.,

LaRose v. Casey, 570 S.W.2d 746 (Mo.App. 1978).

‘Where state criminal defendants prevail on their constitutional

claims in state court, the defendants will, of course, retain the right to

assert their good faith-reasonable belief defense under Pierson v. Ray,

supra.

oe

California v. Minjares, __. U.S. ___, 100 S.Ct. 9 (1979)

(Rehnquist, J., dissenting from denial of stay); Stone v. Powell,

supra, 428 U.S. 496-502 (Burger, C.J., concurring), 536, 541-42

(White, J., dissenting). The rule is now perceived not as a per-

sonal constitutional right, but as a judge-made rule intended to

deter conduct which violates the Fourth Amendment. Stone,

supra, 428 U.S. at 486. A sense that the rule is inadequate to

protect Fourth Amendment rights has led this Court to infer a

damage remedy from the Amendment itself. Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Of

course, esentially the same remedy is provided by 42 U.S.C.

§1983. See. e.g., Brubaker v. King, supra, 505 F.2d. at 536-37.

Even though the exclusionary rule is not a constitutional rule,

its application necessarily involves an extensive examination of

the constitutionality of the search and seizure involved; only

when the search is unconstitutional need the rule be applied.

E.g., Mincey v. Arizona, 437 U.S. 385 (1978). Consequently,

the continued imposition of the exclusionary rule on the states

guarantees that cases such as Respondent’s herein will continue

to plague the federal courts, with a deleterious effect on law en-

forcement. The officer who conducts a search will be faced with

the prospect that even if the state courts uphold him, he may

nevertheless be mulcted in damages by the convicted defendant.

On the other hand, if the constable blunders, not only will the

criminal go free, but he will perhaps stand to be compensated by

the hapless constable. Society will be left with freed felons and

intimidated law enforcement personnel - the worst of both

worlds.

Were the exclusionary rule abandoned, the focus of litigation

concerning search and seizure would shift entirely to the civil

forum, and it is probable that 42 U.S.C. §1983 and Bivens,

supra, would provide a superior means of vindicating Fourth

—" on

Amendment rights than the exclusion of illegally seized evidence

in criminal prosecutions.* Until that happy day, however, it is

important to shield law enforcement officers from unnecessary

litigation. The application of rules of collateral estoppel would

do so to a large extent. By giving preclusive effect in §1983 cases

to state court judgments on search and seizure questions, the

federal courts would at least assure law enforcement officers

that they will have to litigate civil actions only when there is a

real question as to the validity of their conduct. While this

would not obviate the anomalous result of dual benefit to

patently guilty individuals, who are set free because of the exclui-

sionary rule and then seek damages, it would eliminate the even

more absurd result (rendered possible by the Court of Appeals’

opinion in this case) that a convicted felon may obtain damages

on account of police actions which led to his conviction.’

*In Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957),

this Court enunciated a doctrine of federal common law based on

§301 of the Labor Management Relations Act, 29 U.S.C. §185. Draw-

ing on, but not controlled by, the common law or state law of con-

tracts, the federal courts have proceeded to create a body of federal

law relating to what are essentially federal rights, i.e., collective

bargaining rights and obligations.

Like §301, L.M.R.A., §1983 has also been construed to create a

special federal remedy to protect and vindicate federal rights. E.g.,

Monroe v. Pape, 365 U.S. 167 (1961). The law to be applied is federal

iaw, but the corpus of that federal law is drawn from the common law

of tort. See Pierson v. Ray, supra. Although this Court has not ex-

pressly said so, it is evident that 42 U.S.C. §1983 can and should be

construed as authorizing ‘‘federal courts to fashion a body of federal

law for the enforcement’’ of federal constitutional rights. See Textile

Workers Union v. Lincoln Mills, supra, 353 U.S. 451. If §1983 is so

construed, the reason for the exclusionary rule passes away.

"It is sometimes argued that application of collateral estoppel in

§1983 actions would unfairly restrict a person’s choice of forum in

which to litigate a federal claim. See generally, Theis, Res Judicata in

—,

II. The Petition Ought To Be Granted Because the Decision

of the Court of Appeals Is in Direct Conflict With the Over-

whelming Weight of Authority in the Other Circuits.

As this Court remarked in Preiser v. Rodriguez, 411 U.S. 475,

497 (1973), ‘‘res judicata has been held to be fully applicable to

a civil rights action brought under §1983.’’ An examination of

the authorities fully supports that view. Nearly every federal

court addressing the issue has held that principles of res judicata

and collateral estoppel apply in §1983 actions, and tha‘ prior

state civil and criminal judgments will be given preclusive effect

in accordance with those principles, even when the issues in-

volved are constitutional issues. Martin v. Delcambre, 578 F.2d

1164 (Sth Cir. 1978); Winters v. Lavine, supra; Rimmer v. Fay-

etteville Police Dept., supra; Mastracchio v. Ricci, supra;

Thistlethwaite v. City of New York, supra; Brazzell v. Adams,

493 F.2d 489 (Sth Cir. 1974); Metros v. United States District

Court, 441 F.2d 313 (10th Cir. 1970); Kauffman v. Moss, 420

F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846 (1970); compare

Brubaker v. King, supra, with Williams v. Liberty, 461 F.2d 325

(7th Cir. 1972); compare Mulligan v. Schlachter, 389 F.2d 231

(6th Cir. 1968) with Curtis v. Tower, 262 F.2d 166 (6th Cir.

1959); but see Ney v. California, 439 F.2d 1285 (9th Cir. 1971).

The Court of Appeals in this case was fully aware of the

weight of authority, see Appendix B, A-7 - A-9. Nevertheless, the

Court chose to ignore the overwhelming majority of cases and

proceed to reject the application of collateral estoppel in this

Civil Rights Act Cases: An Introduction to the Problem, 70

Nw.L.Rev. 859, 872-73 (1970). However, this argument is chimerical.

The argument’s underlying assumption is that state court defendants

will always fail to successfully assert a Fourth Amendment violation.

That assumption is manifestly false. Moreover, the critical question

should be whether the claim is meritorious, not where it may be

asserted. If there has been full and fair litigation of the issue, then

there is no reason for an encore in another court, simply because it is a

federal court. See, e.g., Palma v. Powers, supra, 295 F.Supp. 924,

937; see also Smith v. Sinclair, 424 F.Supp. 1108 (W.D.Okla. 1976).

case. In doing so, the Court of Appeals attempted to distinguish

many of the cases on the ground that their rationale for apply-

ing collateral estoppel rested on the availability of federal

habeas corpus, and were, therefore, emasculated (in search and

seizure cases) by Stone v. Powell. In a few cases, this could be

true. See, e.g., Rimmer v. Fayetteville Police Dept., supra, 567

F.2d at 276. In most of the cases, however, the availability of

habeas corpus was neither discussed nor relied on, or was at

most an alternative justification. E.g., Mastracchio v. Ricci,

supra; Thistlethwaite v. City of New York, supra (alternative

justification); Metros v. United States District Court, supra.

The Court of Appeals also felt justified in ignoring the weight

of authority on the ground that the decisions expressly applying

collateral estoppei in §1983 actions alleging unlawful search and

seizure were decided prior to Stone v. Powell.

Whatever one may think of the Court of Appeals’ view of the

impact of Stone v. Powell on §1983 actions, it cannot be denied

that the decision in this case squarely conflicts with Metros v.

United States District Court, supra. In Metros, the Court of

Appeals for the Tenth Circuit explicitly held that an application

of rules of ‘‘issue preclusion’’ prevented the relitigation in a

§1983 action of the validity of a search warrant issued by 4 state

court.* In so holding, the Court of Appeals for the Tenth Cir-

cuit did not rely on the availability of habeas corpus, but rather

solely on the traditional grounds for applying preclusion prin-

ciples generally. 441 F.2d 316-17.

‘Generally, the standard for determining if litigation of a question

in a civil suit is barred by a prior criminal conviction is whether the

question was distinctly put in issue and directly determined in the prior

criminal proceeding. E.g., Kauffman v. Moss, supra, 420 F.2d 1274.

In Metros, supra, a state search warrant had been obtained, and the

Court noted that, for collateral estoppel purposes, this unchallenged

warrant constituted a prior judicial determination of the legality of the

search. The defendant could have attacked the warrant by a motion to

—

The opinion of the Court of Appeals in this case is, therefore,

not only a departure from settled principles of law under §1983,

but also squarely conflicts with decisions of the Court of Ap-

peals for the Tenth Circuit, Metros, supra, and also for the

Fifth Circuit, see Meadows v. Evans, 550 F.2d 345, 351 (Sth Cir.

banc), cert. denied, 434 U.S. 969 (1977) (separate opinion of

Tjoflat, Circuit Judge, citing Shank v. Spruill, 406 F.2d 756 (Sth

Cir. 1969) and Jones v. Bales, 58 F.R.D. 453 (M.D.Ga. 1972),

aff'd, 480 F.2d 805 (Sth Cir. 1973)). See also Smith v. Sinclair,

supra, and Palma v. Powers, supra. This conflict should be

resolved by this Court by reviewing and reversing the Court of

Appeals in this case.

Ill. The Petition Ought To Be Granted Because the Ques-

tions Presented Herein Have Been Decided By the Court of Ap-

peals For the Eighth Circuit in a Manner Which Conflicts With

Other Decisions of That Court and Also With Decisions of the

Supreme Court.

Prior to the decision in this case, it could have been averred

with some confidence that the Court of Appeals for the Eighth

Circuit adhered to the generally accepted rule that collateral

estoppel applies to §1983 actions and operates as a bar to the

relitigation of constitutional issues which were or could have

been raised in a prior state court action. Robbins v. District

Court of Worth City, 592 F.2d 1015 (8th Cir. 1979); Goodrich

v. Supreme Court of South Dakota, 511 F.2d 316 (8th Cir.

1975); Jenson v. Olsen, 353 F.2d 825 (8th Cir. 1965); Norwood

‘vy. Parenteau, 228 F.2d 148 (8th Cir. 1955), cert. denied, 351

suppress, but he did not, choosing instead to plead guilty. Hence, col-

lateral estoppel applied. Whether a different rule shouid obtain in

§1983 actions based on a warrantless search, when the defendant has

pleaded guilty (since the validity of the search presumably need not be

considered essential to the result, compare Brazzell v. Adams, supra),

is not a relevant question in this case, since Respondent McCurry did

not ge guilty and did, in fact, fully litigate the validity of the

search.

oa

U.S. 955 (1956). However, in its zeal to reach what it conceived

to be a desirable result in this case, the Court has distinguished

the foregoing cases on very flimsy grounds and has ignored

others, so that it is clear that the Court was seeking to reopen

the entire question of collateral estoppel in §1983 cases for the

future.

The opinion in this case asserts that the Court of Appeals for

the Eighth Circuit has never addressed the issue of whether col-

lateral estoppel applies to §1983 actions when the issues raised

by the §1983 plaintiff have been determined adversely to him in

an underlying state criminal proceeding. Appendix B, A-6 to

A-9. The opinion purports to distinguish Robbins, Goodrich

and Jenson, all supra, primarily on the basis that the underlying

state proceedings were civil. In so doing, the Court overlooked

its statement in McNally v. Pulitzer Pub. Co., 532 F.2d 69 (8th

Cir.), cert. denied, 429 U.S. 855 (1976): ‘‘It is well established

that prior criminal proceedings can work an estoppel in a subse-

quent civil proceeding, so long as the question involved was

‘distinctly put in issue and directly determined’ in the criminal

action.’’ 532 F.2d at 76, citing, inter alia, Kauffman v. Moss,

supra, a case involving an underlying state criminal action. The

Court also failed to sufficiently explain the nature of its applica-

tion of collateral estoppel in Goodrich, supra, in which a §1983

plaintiff was precluded from relitigating issues decided in his

disbarment proceeding, which the Court characterized as

**quasi-criminal’’. 511 F.2d at 318 n. 4. |

Of course, the inconsistency manifested by the Eighth Circuit

in dealing with collateral estoppel in §1983 actions might not of

itself warrant grant of certiorari, but for the fact that the Court

of Appeals’ latest inconsistency has led itself into conflict with

decisions of the Supreme Court.

This Court has consistently held that issues decided in a

criminal conviction may work an estoppel in a subsequent civil

i

proceeding, and that a state court decision of a federal question

may be accorded preclusive effect. Emich Motors Corp. v.

General Motors Corp., 340 U.S. 558 (1951); Sealfon v. United

States, 332 U.S. 575 (1948); Grubb v. Public Utilities Comm.,

supra; Frank Mangum, supra; cf. Robb v. Connolly, supra. The

precise question in Emich involved §5 of the Clayton Act, 15

U.S.C. §16, and the use of criminal antitrust convictions as

evidence in subsequent civil proceedings; but the decision in the

case was made by referring to the general doctrine of collateral

estoppel, supra, 340 U.S. at 568, and the case has been fre-

quently cited as the source for collateral estoppel principles to

be applied in §1983 actions. See, e.g., Kauffman v. Moss,

supra, 420 F.2d at 1274. More recently, this Court has expressed

itself in favor of limiting litigants to one full and fair opportuni-

ty to litigate an issue, Blonder-Tongue, Laboratories, Inc. v.

University of Illinois Foundation, supra, and has explicitly

recognized that res judicata has been held fully applicable to

§1983 actions, Preiser v. Rodriguez, supra; but see Ellis v.

Dyson, 421 U.S. 426, 440 (1975) (Powell, J., dissenting).

Thus, not only is the decision of the Court of Appeals in this

case at war with other precedents of the same Circuit, it is also

clearly at variance with the principles of collateral estoppel

heretofore adopted and recognized by this Court to be ap-

plicable to §1983 actions. Compare Emich Motor Corp. v.

General Motors Corp., supra, with Preiser v. Rodriguez, supra.

The Court of Appeals for the Eighth Circuit should be corrected

by means of granting this Petition and reversing the judgment

below.

— po

CONCLUSION

For the foregoing reasons, certiorari should issue to the Court

of Appeals of the Eighth Circuit so that this Honorable Court

may review and correct the decision below.

Respectfully submitted,

JACK L. KOEHR,

City Counselor

JOHN J. FITZGIBBON,

Associate City Counselor

ROBERT H. DIERKER, JR.

Assistant City Counselor

Room 314 City Hall

St. Louis, Missouri 63103

(314) 622-3361

Attorneys for Petitioners

APPENDIX

ee

APPENDIX A

United States District Court

Eastern District of Missouri

Eastern Division

Willie McCurry,

Plaintiff, |

VS. . No. 78-717C(1)

Marvin Allen, et al.,

Defendants.

JUDGMENT

(Filed October 13, 1978)

A memorandum dated this day is hereby incorporated into

and made a part of this judgment.

IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that defendants motion for summary judgment be

and is sustained. Plaintiff’s complaint is hereby dismissed with

prejudice.

IT IS FURTHER ORDERED that plaintiff’s motion for

summary judgment be and is denied.

Dated this 13th day of October, 1978.

/s/ J. H. Meredith

United States District Judge

Willie McCurry,

Plaintiffs,

VS. No. 78-717C(1)

Marvin Allen, et al.,

Defendants.

ee

MEMORANDUM

(Filed October 13, 1978)

This matter is before the Court on the motion of defendant

St. Louis Police Department to dismiss for failure to state a

claim, on the motion of defendants for summary judgment, and

on the motion of plaintiff for summary judgment. For the

reasons stated below, the Court will grant defendants’ motion

for summary judgment and dismiss plaintiff’s complaint with

prejudice.

This pro se action is brought under 42 U.S.C. 1983. Plaintiff

alleges that on April 9, 1977, various police officers of the St.

Louis Police Department conducted an illegal and unconstitu-

tional search of his house following his arrest.

It appears from the police reports that defendants

Jacobsmeyer and Allen went to plaintiff’s home to make a pur-

chase of heroin and knocked on the door. Plaintiff opened the

front door and, after being asked to sell the undercover agents

heroin, said ‘‘wait a minute, I’ll get it’’. After a brief period of

time plaintiff returned and shot both defendants, wounding

them seriously.

Plaintiff was tried and convicted in St. Louis County Circuit

Court of assault with intent to kill, Cause No. 77-862. Plaintiff

then filed this action seeking $1,000,000.00 in damages for a

‘*deliberate and intentional violation of the U.S. Constitutional

Rights of the Plaintiff.”’

Plaintiff contends that a search that was conducted after the

shooting by ‘‘unknown police officers’? and officers

Jacobsmeyer and Allen, both of whom were lying on the ground

critically wounded, violated his right to protection from

unlawful searches under the Fourth Amendment of the United

States Constitution.

— < pon

Defendants move for summary judgment on the grounds that

the lawfulness of the search was litigated at the state level and is

therefore barred from relitigation by res judicata.

It should first be noted that res judicata does not apply in this

instance because different parties are involved. Rather, col-

lateral estoppel will bar relitigation of only those issues which

were actually litigated on the merits in the first action.

In support of the motion for summary judgment, defendants

attach a copy of the Court’s ruling on plaintiff’s motion to sup-

press all evidence obtained from the alleged unlawful search. It

reveals that the Court upheld the search of the house insofar as

evidence in plain view was seized. The Court did suppress

evidence (heroin) which was taken from a search of some

dresser drawers. Nevertheless, the impact of that decision is that

the police lawfully entered the house pursuant to a lawful arrest

and lawfully searched the house for evidence.

This Court will grant defendants’ motion on the ground that

the only issue in the instant lawsuit—whether the entrance into

plaintiff's home and the resulting search was lawful—was

litigated on the merits at his criminal trial in state court and

determined adversely to his position. Therefore, plaintiff may

not collaterally attack that determination and he is collaterally

estopped from relitigating the constitutionality of the search.

Rodriguez v. Beam, 423 F. Supp. 906, 908 (S.D.N.Y. 1976),

Taylor v. New York City Transit Authority, 433 F.2d 665 (2d

Cir. 1970). Since no genuine issues remain for trial, and it is fur-

ther evident that defendants are entitled to judgment as a matter

of law, Rule 56(c), Fed. R. Civ. Proc., the motion will be

granted and plaintiff’s complaint dismissed. This ruling will ob-

viously moot plaintiff’s motion for summary judgment.

Dated this 13th day of October, 1978.

/s/ J. H. Meredith

United States District Judge

ay Sn

APPENDIX B

United States Court of Appeals _

For the Eighth Circuit

No. 78-1849

Willie, McCurry,

Appellant. ;

v. Appeal from the

United States District

‘ Court for the Eastern

District of Missouri

Marvin Allen, Steven Jacobsmeyer,

and Unknown Police Officers, St.

Louis Police Department, St.

Louis, Missouri,

Appellees.

Submitted: April 19, 1979

Filed: October 1, 1979

Before LAY, HEANEY and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Willie McCurry appeals from a judgment of the district court

granting appellees’ motion for partial summary judgment and

dismissing with prejudice appellant’s entire § 1983 civil rights

complaint. 42 U.S.C. § 1983. Appellant was convicted of illegal

possession and assault with intent to kill in state court pro-

ae woe

ceedings. Subsequently, appellant filed a § 1983 action alleging

violation of his constitutional rights in connection with his ar-

rest and naming as defendants two individual police officers,

‘‘unknown police officers,’’ and the City of St. Louis Police

Depariment. The district court granted the motion for summary

judgment on the basis of collateral estoppel.

For reversal appellant argues that the trial court erred in ap-

plying the doctrine of collateral estoppel to bar appellant’s §

1983 action and in dismissing with prejudice appellant’s entire §

1983 complaint. For the reasons discussed below, we reserve the

judgment of the district court and remand for further pro-

ceedings not inconsistent with this opinion.

On April 9, 1977, six or seven undercover police officers went

to appellant’s house on an informant’s tip that appellant was

currently selling heroin. Two officers were to make a heroin

purchase while the other officers remained secluded in nearby

bushes. The two officers knocked on the front door of ap-

pellant’s home, and, when appellant came to the door, asked if

he had some ‘‘caps’’ (capsules of heroin) they could purchase.

Appellant said, ‘‘Wait a minute,’’ or something to that effect,

and came back shooting. The two officers standing at the door

were seriously wounded. The other officers opened fire and a

gun battle ensued. Additional officers arrived until there were

about thirty-five officers at the scene. After all officers had ar-

rived, one of the officers announced with a bullhorn, ‘We are

police, let us in,’’ and ‘‘Come out of the house, no action will be

taken.’’ Appellant and his father then came out of the house.

The officers, suspecting that there were additional persons

within, rushed into the house tc check. Sonie time thereafter,

exactly when is not clear from the record, Officer Brand, who

had been designated as the ‘‘seizing officer,’’ entered the house

and found the items which are the subject of the search ap-

pellant argues ir unconstitutional.

— * pe

Before trial appellant made a motion to suppress the evidence

discovered during the search. After the suppression hearing, the

state trial court granted appellant’s motion in part by suppress-

ing the evidence found in drawers and ‘‘among tire.’’ The court

denied the motion as to evidence found in plain view.

At trial appellant was found guilty on one count of illegal

possession of heroin and on two counts of assault with intent to

kill with malice aforethought. State v. McCurry, No. 77-862

(Mo. Cir. Ct. Jan. 6, 1978), aff’d, No. 39-999 (Mo. Ct. App.

Aug. 14, 1979).

On July 7, 1978, appellant filed a § 1983 claim for $1,000,000

in damages against individual police officers based on the

following alleged violations of his constitutional rights: (1) the

police officers conspired to conduct an illegal search of his

home, (2) his home was illegally searched, and (3) he was

assaulted by police officers upon being arrested.' The district

court granted defendants’ motion for summary judgment on

the ground that:

the only issue in the instant lawsuit—whether the entrance

into plaintiff's home and the resulting search was law-

ful—was litigated on the merits at his criminal trial in state

court and determined adversely to his position. Therefore,

plaintiff may not collaterally attack that determination and

he is collaterally estopped from relitigating the constitu-

tionality of the search.

McCurry v. Allen, No. 78-717C(1) (E.D. Mo. Oct. 13, 1978).

This appeal followed.

‘We note that appellant learned the name of the police officer who

allegedly assaulted him subsequent to the filing of the § 1983 action.

Appellant should be granted leave to amend his complaint in this

respect.

a aes

In passing upon a motion for summary judgment the

court is required to view the facts in the light most

favorable to the party opposing the motion and to give that

party the benefit of all reasonable inferences to be drawn

from the underlying facts disclosed in the pleadings,

depositions and affidavits filed in the case.

EEOC v. Liberty Loan Corp., 584 F.2d 853, 857 (8th Cir. 1978)

(citations omitted).

We find that the district court was erroneous in granting the

motion for summary judgment. The district court improperly

held that the on/y issue in the case was the allegedly unconstitu-

tional search and seizure. In addition to his search and seizure

claim, appellant also alleged that he had been assaulted by

police officers upon arrest. From the district court’s memoran-

dum, it is apparent that the district court overlooked this serious

allegation. Upon remand the district court should give the

assault and conspiracy claim appropriate consideration. Fur-

ther, the district court ultimately granted appellee’s § 1983 ac-

tion was barred by collateral estoppel. When appellant filed his

§ 1983 action seeking damages for the violation of his civil

rights, the search and seizure aspect of his claim was, as we

acknowledge, essentially the same claim that was litigated at the

suppression hearing. Unlike the district court, however, we do

not believe that this requires the conclusion that appellant’s §

1983 claim is barred by collateral estoppel.

Numerous courts have addressed the general question

whether collateral estoppel applied to § 1983 actions when the

issues raised in the § 1983 suit were determined adversely to the

§ 1983 plaintiff in an underlying state criminal trial. The First,’

?Fernandez v. Trias Monge, 586 F.2d 848, 854 (Ist Cir. 1978);

Mastracchio v. Ricci, 498 F.2d 1257, 1260 (ist Cir. 1974), cert. denied,

420 U.S. 909 (1975).

ss Mele ct

Second,’ Third,‘ Fourth,’ Fifth,® Sixth,’ and Tenth® Circuits, as

well as numerous district courts,’ have held that collateral estop-

pel is appropriately applied in such circumstances. This circuit

has not yet addressed this issue'® and we do not do so now.

>Winters v. Lavine, 574 F.2d 46, 58 (2d Cir. 1978); Turco v. Monroe

County Bar Ass’n, 434 U.S. 834 (1977); Thistlethwaite v. City of New

York, 497 F.2d 339, 341-43 (2d Cir.), cert. denied, 419 U.S. 1093

(1974).

‘Kauffman v. Moss, 420 F.2d 1270, 1274 (3d Cir.), cert. denied, 400

U.S. 846 (1970).

‘Wiggins v. Murphy, 576 F.2d 572, 573 (4th Cir. 1978), cert. denied,

99 S. Ct. 874 (1979); Rimmer v. Fayetteville Police Dep’t, 567 F.2d

273, 276 (4th Cir. 1977); Moye v. City of Raleigh, 503 F.2d 631, 634

(4th Cir. 1974).

®Martin v. Delcambre, 578 F.2d 1164, 1165 (Sth Cir. 1978);

Meadown v. Evans, 529 F.2d 385, 386 (Sth Cir. 1976), aff’d en banc,

550 F.2d 345, cert denied, 434 U.S. 969 (1977); Brazzell v. Adams, 493

F.2d 489, 490 (Sth Cir. 1974).

’Mulligan v. Schlachter, 389 F.2d 231, 233 (6th Cir. 1968).

*Metros v. United States District Court, 441 F.2d 313 (10th Cir.

1971).

*See, e.g., Olitt v. Murphy, 453 F. Supp. 354, 358-60 (S.D.N.Y.),

aff'd without opinion, 591 F.2d 1331 (2d Cir. 1978); Hammer v.

Town of Greenburgh, 440 F. Supp. 27, 29 (S.D.N.Y. 1977), aff’d

without opinion, 578 F.2d 1368 (2d Cir. 1978); Smith v. Sinclair, 424

F. Supp. 1108, 1111-12 (W.D. Okla. 1976); Rodriquez v. Beame, 423

F. Supp. 906, 908 (S.D.N.Y 1976); Moran v. Mitchell, 354 F. Supp.

86, 88-89 (E.D. Va. 1973). But see generally McCormack, Federalism

and Section 1983: Limitations on Judicial Enforcement of Constitu-

tional Claims, Part II, 60 VA. L. REV. 250 (1974); Theis, Res

Judicata in Civil Rights Act Cases: An Introduction to the Problem,

70 NW. L. REV. 859 (1976); Developments in the Law-Section 1983

and Federalism, 90 HARV. L. REV. 1133 (1977).

'°In Jenson v. Olson, 353 F.2d 821 (8th Cir. 1965), this court ap-

plied preclusion principles in a federal civil rights action, but only to

aye pm

A more specific issue, and one which is complicated by

unusual circumstances, is presented in this case. The specific

issue is whether appellant’s § 1983 claim raising search and

seizure questions is barred by collateral estoppel; the unusual

circumstance is that since 1976, search and seizure claims, ex-

cept in a few situations, can no longer be raised by state

prisoners in federal habeas corpus actions. Thus, if collateral

bar relitigation of a purely factual matter; the federal court considered

fully the plaintiff’s constitutional claims. Recently this court has ap-

plied preclusion principles to constitutional claims previously litigated

in state courts but the underlying state proceedings were civil. See

Robbins v. District Court, 592 F.2d 1015 (8th Cir. 1979) (termination

of parental rights); Goodrich v. Supreme Court, 511 F.2d 316 (8th

Cir. 1975) (disbarment proceedings). Thus we have not yet addressed

the particular problems which arise when the prior state proceeding

was criminal and the constitutional rights at stake are fourth amend-

ment rights.

The Seventh and Ninth Circuits have not yet addressed this issue

directly. The Ninth Circuit, in Ney v. California, 439 F.2d 1285 (9th

Cir. 1971), found it unnecessary to decide if collateral estoppel ap-

plies, in general, to § 1983 actions because it found the elements of

collateral estoppel (referred to as res judicata by the Ninth Circuit)

were not met (the issue raised in the § 1983 claim was not raised at the

state court proceedings). In dicta, however, the Court stated that ap-

plying res judicata to federal civil rights actions would render the Civil

Rights Acts a ‘‘dead letter.” Jd. at 1288. The Ninth Circuit has ap-

parently not addressed the issue since 1971.

The Seventh Circuit’s position is initially appealing. In Brubaker v.

King, 505 F.2d 534, 536-37 (7th Cir. 1974), the Court held that the

issue to be considered at a suppression hearing in a state criminal trial

(the constitutionality of the search) was not the same issue (good faith

and reasonable belief the search was with probable cause) presented in

a § 1983 suit against police for damages. Therefore, the Seventh Cir-

cuit held collateral estoppel could not, by definition, apply to § 1983

actions in which the underlying issues had previously been litigated in

state trial courts. The problem we see with this analysis is that it would

be very difficult, practically speaking, for a federal court to subse-

quently hold in a § 1983 claim that officers were not acting in good

faith or with ‘‘reasonable belief’’ if the state court has already held the

search to be constitutional.

— A-10 —

estoppel is to apply in § 1983 actions raising search and seizure

claims, there will be no federal forum for the victim of a search

and seizure which allegedly violates the federal constitution.

Of the seven circuits which have held that collateral estoppel

is applicable to § 1983 actions, only two were confronted with §

1983 actions which raised search and seizure claims, and both of

these courts considered this issue before Stone v. Powell, 428

U.S. 465 (1976), when federal habaes corpus relief became

unavailable. Metros v. United States District Court, 441 F.2d

313 (10th Cir. 1971); Mulligan v. Schlachter, 389 F.2d 231 (6th

Cir. 1968). Moreover, many of the courts which concluded that

collateral estoppel should apply to § 1983 actions expressly

based their holding on the fact that federal habeas corpus relief,

and thus a federal forum, was then available. Rimmer v. Fay-

etteville Police Department, 567 F.2d 273, 276 (4th Cir. 1977);

Thistlethwaite v. City of New York, 497 F.2d 339, 343 (2d Cir.),

cert. denied, 419 U.S. 1093 (1974); Alexander v. Emerson, 489

F.2d 285, 286 (Sth Cir. 1973) (per curiam); Moran v. Mitchell,

354 F. Supp. 86 (E.D. Va. 1973); cf. Fernandez v. Trias Monge,

586 F.2d 848 (Ist Cir. 1978) (commonwealth supreme court

denial of certiorari in juvenile court proceedings imported no

view on merits of case). Chief Justice Burger in his concurring

opinion in Stone v. Powell partially justified rendering habeas

corpus unavailable as a remedy for fourth amendment claims on

the basis that alternative remedies were still available. 428 U.S.

at 500-01. A § 1983 damage action is clearly one of the more ob-

vious of such alternative remedies.

We conclude that because of the special role of federal courts

in protecting civil rights, e.g., Mitchum v. Foster, 407 U.S. 225,

242 (1972) (federal courts as guardians of the people’s federal

rights); but cf. Stone v. Powell, supra, 428 U.S. at 493-94 n.35

(‘‘Despite differences in institutional environment and the un-

sympathetic attitude to federal constitutional claims of some

state judges in years past, we are unwilling to assume that there

now exists a general lack of appropriate sensitivity to constitu-

— A-ll —

tional rights in the trial and appellate courts of the several

States.’’), and because habeas corpus is now unavailable to ap-

pellant, see Stone v. Powell, supra, 428 U.S. at 492-94 & n.37, it

is our duty to consider fully, unencumbered by the doctrine of

collateral estoppel, appellant’s § 1983 claims.

Nonetheless, although we are not collaterally estopped by the

judgment of the Missouri courts on appellant’s fourth amend-

ment claim, we believe it appropriate to temporarily abstain un-

til the Missouri courts have had the opportunity to directly

review appellant’s conviction and the underlying search of his

home. It is clear that if appellant was seeking injunctive or

declaratory relief, we would have no choice but to abstain until

the state criminal proceedings had run their course. Juidice v.

Vail, 430 U.S. 327, 333-36 (1977); Huffman v. Pursue, Ltd.,

420 U.S. 592, 604-07 (1975); Younger v. Harris, 401 U.S. 37, 44

(1971). Whether abstention is also mandatory when only

damages are sought in an § 1983 action has been explicitly left

open by the Supreme Court. Juidice v. Vail, supra, 430 U.S. at

399 n.16. In deference to the state courts, however, we believe it

appropriate to abstain under the present circumstances as well.

Therefore the district court’s order granting summary judg-

ment for defendants-appellees is reversed and the district court

is ordered to stay appellant’s § 1983 action in order to prevent

the tolling of the statute of limitations pending the Missouri

courts’ review of appellant’s conviction. We realize that by

abstaining we are refusing appellant immediate relief and com-

mitting him to perhaps several years of litigating his § 1983

claim, which appears, from the record before us, to be serious

and substantial. This is most unfortunate'' but it is the price ex-

‘1**This case dramatically diagrams the pitfalls that snare or nearly

snare litigants and courts alike when a constitutional claim is brought

in federal courts that involves an ongoing state prosecution.’’

Fernandez v. Trias Monge, supra, 586 F.2d at 849; cf. Trainor v.

Hernandez, 431 U.S. 434, 470 (1977) (Stevens, J., dissenting)

(characterizing the Supreme Court’s abstention doctrine as ‘‘increas-

ingly Daedalian’’).

— A-12 —

acted by our federal-state court system. See Huffman v. Pursue,

L, ', supra, 420 U.S. at 607, citing Younger v. Harris, supra,

401 U.S. at 44.

For the foregoing reasons the order of the district court is

reversed and remanded for further proceedings as directed

herein.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

— A-13 —

APPENDIX C

In the Missouri Court of Appeals

Eastern District

Division One

‘

State of Missouri, : No. 39999

Respondent, Appeal from the

‘ Circuit Court City

VS. of St. Louis

Willie McCurry, Hon. Harold L. Satz, Judge

Appellant. /’ Opinion Filed: August 14, 1979

Defendant appeals from his conviction by a jury of two

counts of assault with intent to kill with malice aforethought

and one count of possession of a controlled substance—heroin.

The court, acting pursuant to the second offender act, sen-

tenced defendant to two thirty year consecutive terms on the

assaults and a concurrent ten year term on the heroin charge.

We affirm.

At 10:30 p.m. on April 9, 1977, several policemen from the

Tactical Anti-Crime Team (TACT) of the St. Louis Police

Department went to a home on North Market in St. Louis.

Their intention was to make a purchase of narcotics at that loca-

tion and then arrest the seller. Two officers, Jacobsmeyer and

Allen, went up to the door of the premises and knocked. The re-

maining officers secreted themselves at the rear of the house and

near the front door. Defendant opened the door and Allen said

they had been sent by Victor Murphy and wanted to buy ‘“‘two

caps’’ or ‘‘two buttons’’—referring to heroin. Defendant

responded that they should wait while he got what they wanted.

Defendant then left the doorway closing the door until it was

slightly ajar. Jacobsmeyer and Allen signalled to the nearby

police officers who moved closer to the doorway but still at-

tempted to remain concealed. All of the police officers were

— A-14 —

dressed in casual clothing although all of them except

Jacobsmeyer and Allen wore armbands and caps identifying

them as members of TACT. Approximately thirty seconds after

leaving the doorway, defendant returned and began firing at

Jacobsmeyer and Allen. Both were hit. The other police then

began firing into the house and were shortly joined by a large

number of uniformed police responding to a radio call for

assistance. Many of these officers also began firing into the

house. After five or ten minutes the police ceased firing upon

orders from one of their number and by loudspeaker accounce-

ment the occupants of the house were advised that the house

was surrounded by police and the occupants should surrender.

Defendant and his father then left the house, unarmed, and

were arrested. Upon a search of the house heroin was

discovered on a dresser top in a bedroom. A pistol from which

the bullet which *it Jacobsmeyer was discharged was found and

a shotgun was also found.

Defendant contended that he believed the men at the door

were burglars trying to force their way into his house, that he

removed a pistol from his back pocket and fired at them and

that he would not have done so had he realized they were police

officers.

On appeal defendant raises three points. His first is that cer-

tain evidence seized from his home was inadmissible because ob-

tained in contravention of his rights under the Fourth and Four-

teenth Amendments. Following the exit of defendant and his

father from the house several police officers entered the

premises to search for additional persons therein. One of the of-

ficers who entered was Detective Brand who had been

designated by the officer in charge of the TACT operation, Sgt.

Hammer, as the ‘‘seizure officer.’” Defendant contends that

Brand did not enter the house until an hour after the arrest of

defendant and after the house had been searched for additional

persons with no success. We do not find that the record sup-

— A-15 —

ports such a contention. Brand was instructed to enter the house

by Hammer and Hammer left the scene to go to the hospital to

see Jacobsmeyer and Allen immediately after defendant exited

the house. Although the record does not indicate precisely when

Brand entered the house, it is reasonable to conclude that it was

shortly after he was instructed to do so and while other officers

were also inside looking for other occupants. The search for oc-

cupants continued for approximately an hour after original en-

try, in part because of difficulty in obtaining access to a portion

of the house which was locked. In going through the house

Brand found heroin, a strainer and spoon with heroin residue

on them on top of a dresser in a bedroom. Other officers

searching for occupants found the pistol and shotgun. All of

these items were in plain view. Additionally, Brand found addi-

tional contraband in dresser drawers and hidden in some tires

on a porch. Those items were not in plain view. After hearing

on defendant’s motion to suppress, the trial court sustained the

‘motion as to those items found in drawers and the tires and

denied the motion as to those items in plain view.

The thrust of defendant’s point is that Brand’s entry into the

house was not under emergency circumstances and that the

search conducted was not reasonable in time, spatial scope or

intensity.

The general rule is that warrantless searches are unreasonable

per se unless the action falls within certain delineated excep-

tions. State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978). The

burden of proof is upon the state to establish that an exception

exists. Objective facts within the knowledge of police and

reasonable conclusions objectively drawn therefrom are deter-

minative of the reasonableness of the particular search. Terry v.

Ohio, 392 U.S. 1 (1968). ‘‘Courts must consider the scope of the

particular intrusion, the manner in which it is conducted, the

justification for initiating it and the place in which it is con-

ducted.’ Bell v. Wolfish, __. U.S. ____ (May 14, 1979).

— A-16 —

Defendant concedes, and we also find, that the entry of the

police into the house following defendant’s exit therefrom was

justified under the emergency circumstances then existing. At

that time the police did not know how many persons had been

shooting from the house, whether additional persons were still

in the house and posed a danger, and whether someone might be

injured inside the house. Where the basic intrusion is justified

because of an emergency the seizure of items in plain view is per-

missible during the continuation of the emergency and so long

as the search and seizure is reasonable in time, spatial scope and

intensity. State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978);

Michigan v. Tyler, 436 U.S. 499 (1978); Mincey v. Arizona, 437

U.S. 385 (1978).

‘‘What the ‘plain view’ cases have in common is that the

police officer in each of them had a prior justification for

an intrusion in the course of which he came inadvertently

across a piece of evidence incriminating the accused.”’

Coolidge v. New Hampshire, 403 U.S. 443 (1971), l.c. 466.

Two weapons which were in plain view and seized by police

officers who were searching for other occupants of the house

clearly met all the requirements of admissibility. Defendant con-

tends that the heroin and related paraphernalia found on the

dresser top by Officer Brand does not meet the admissibility

criteria because Brand’s function was not to search for suspects

but for evidence or contraband. As previously stated we do not

find record support for defendant’s contention that Brand

entered the house after the emergency had terminated. That

Brand stated he believed there were no other occupants present

in the house when he entered does not mean there were none.

The record supports the conclusion that when Brand entered

other officers were still searching for additional occupants. The

nature of the search for suspects made all portions of the house

capable of containing a person a legitimate area of search. The

officers conducting the search were therefore entitled to seize

om a hT om

any evidence in plain view within an area of the house capable

of concealing a person.

The question then presented is whether the seizure of items in

plain view must be made by the officers coping with the

emergency itself or may it be made by an officer whose function

it is to seize evidence. The cases which have dealt with ‘‘plain

view’’ searches and seizures have referred to the justification for

the original intrusion by the police and have not dealt with the

specific function of the seizing officer although seizures by of-

ficers not engaged in actually coping with the emergency have

been upheld. See Michigan v. Tyler, supra; State v. Epperson,

supra. Nor is it reasonable to limit seizure to those officers cop-

ing with the emergency when the emergency is one imposing

danger or a need for quick action on those officers. Here the of-

ficers who were searching the house for additional occupants

could clearly have seized the heroin in plain view on the dresser.

But seizure of evidence requires, as a practical matter, con-

siderable care and time. The requirements of care to avoid con-

tamination and destruction of fingerprints and the time

necessary to properly identify and mark the evidence to preserve

its admissibility in court cannot practically be accomplished by

officers dealing directly with an emergency involving a wounded

person or a situation requiring vigilance to avoid personal

danger. These very practical considerations warrant the utiliza-

tion of an officer without responsibility for coping with the

emergency itself to seize in a proper fashion evidence and con-

traband unexpectedly discovered in plain view during the

legitimate intrusion occasioned by the emergency situation.

Such legitimate law enforcement benefits may properly be con-

sidered by courts when balanced against minor perils to Fourth

Amendment protections. Coolidge, supra, 403 U.S. 467.

We do not interpret the term ‘‘inadvertent’’ as used in

Coolidge v. New Hampshire, supra, to encompass total surprise

that evidence or contraband is present, for it is naive in the ex-

om MeI8

treme to believe that police would not expect to find such items

during an emergency search of the scene of a crime. Rather the

term ‘‘inadvertent’’ is contrasted in Coolidge to the cir-

cumstance where the discovery of the particular evidence is an-

ticipated, where the police know in advance the location of the

evidence and intend to seize it. 403 U.S. l.c. 470. That is not the

situation here. While the police may have suspected that contra-

band was in the house they could not anticipate it or know of its

location. The discovery was inadvertent. The intrusion into the

house was justified by the emergency. The heroin and parapher-

nalia were discovered in plain view during that intrusion and

were immediately recognized by Officer Brand for what they

were.

Nor do we find that the actions of Brand in searching for

evidence not in plain view affects the admissibility of the

challenged evidence. The trial court properly suppressed

evidence seized by Brand during that part of his search which

exceeded the permissible limits under the ‘‘plain view’’ doctrine.

The prophylactic purposes found to justify the rule of suppres-

sion of otherwise credible evidence are fully satisfied upon sup-

pression of the evidence improperly obtained. That prophylaxis

does not require suppression of evidence lawfully obtained. We

find no error in the admission of the evidence.

As a sub-issue to this point, defendant challenges the admis-

sion of the shotgun into evidence on relevancy grounds. The

gun was admissible to show motive, malice and knowledge as to

both the assault and heroin charges. See, State v. Starks, 459

S.W.2d 249, (Mo. 1970) [1-5]; State v. Richardson, 515 S.W.2d

571 (Mo. 1974).

Defendant next contends that the evidence was insufficient to

establish possession of the heroin, because the evidence

established only joint control. Actual or constructive possession

of the controlled substance together with the knowledge of the

— A-19 —

fact of possession is an essential element which the state must

prove. State v. Burns, 457 S.W.2d 721 (Mo. 1970). The posses-

sion need not be exclusive and may be established circumstan-

tially. State v. Young, 427 S.W.2d 510 (Mo. 1968). Where joint

control of a residence in which such substance is found is

established there must be other evidence to support the in-

ference of defendant’s knowledge of the presence of the

substance. State v. West, 559 S.W.2d 282. (Mo. App. 1977).

The record does not make clear whether the bedroom in which

the heroin was found was defendant’s. But, when the police of-

ficers sought to purchase heroin from defendant he replied:

‘*Just a minute, I’ll go get them.’’ He further was identified as

the person who fired at Jacobsmeyer and Allen. Both his state-

ment and his action inferring guilty knowledge were sufficient

additional evidence to support a finding of knowing possession.

State v. Wiley, 522 S.W2d 281 (Mo. banc 1975) [26]; State v.

Stewart, 542 S.W.2d 533 (Mo. App. 1976) [16-19]; State v.

Davis, 515 S.W.2d 773 (Mo. App. 1974) [9].

Defendant’s final contention is that the court erred in failing

to instruct on the lesser included offenses of assault without

malice and common assault. Instructions on lesser included of-

fenses are required only if supported by the evidence. When a

deadly weapon is used in making an assault the law presumes

malice and that the natural consequences of the act are intended

in the absence of countervailing evidence. State v. Webb, 518

S.W.2d 317 (Mo. App. 1975) [5-6]. Here the evidence

establishes that defendant fired two shots at and hit two police

officers. His defense was that he was seeking to protect himself

from men he believed to be burglars. He received a self-defense

instruction. There is no evidence to support an instruction on a

lessor degree of assault. The defendant was either guilty of

assault with malice aforethought or he was not guilty on the

basis of self-defense. State v. Webb, surpa, [7].

— A-20 —

Judgment affirmed.

/s/ GERALD M. SMITH, JUDGE

/s/ HARRY L. C. WEIER,

CHIEF JUDGE

/s/ ROBERT O. SNYDER,

PRESIDING JUDGE

— A-21 —

APPENDIX D

In the United States District Court

For the Eastern District of Missouri

Willie McCurry,

Reg. No. 33198

Missouri State Penitentiary

Jefferson City, Missouri

Plaintiff

VS.

Marvin Allen, Steven Jacobsmeyer,

and Unknown Police Officers, St.

Louis Police Department,

St. Louis, Missouri

Defendants.

Case No.

Civil Rights Complaint

Under 42 U.S.C.

Section 1983

(Filed July 17, 1978)

COMES NOW THE PLAINTIFF PRO SE, WILLIE

McCURRY, and respectfully prays that this Court will order all

defendants, including unknown police officers, to pay money

damags of $1,000,000 (One Million Dollars) for the violation of

the U.S. Constitutional Rights of the Plaintiff. In support of

such relief, the Plaintiff states:

1.) The Plaintiff submits that the Defendants acted in a con-

spiracy to viclate the U.S. Constitutional Rights of the

Plaintiff.

— A-22 —

2.) On or about April 9, 1977 at about 10:30 P.M. at 2525

No. Market St. in St. Louis, Missouri the Defendants came to

the home of the Plaintiff, tried to force their way into the

house, engaged in a gun battle, and then arrested the Plaintiff

and then searched his house without a search warrant.

3.) The Defendants ordered the Plaintiff to come out of his

house, which he did, and arrested the Plaintiff on the front

sidewalk away from the house.

4.) When the Defendants came to the house, they did not

wear uniforms, did not identify themselves immediately as

police, forced their way into the house.

5.) The Defendants searched the house without obtaining a

search warrant, and found drugs and other materal and contra-

band which was introduced in a criminal trial against the Plain-

tiff resulting in a conviction and Imprisonment.

6.) The Defendants admitted they searched the house in

order to find contraband, and not to be certain that any other

persons was in the house. The house was secured and the Defen-

dants had over one hour before searching the house to obtain a

search warrant but acted in a conspiracy not to obtain a search

warrant.

7.) When the Plaintiff was arrested, he layed on the ground

and was handcuffed. Then the unknown police officers

assaulted the Plaintiff while he was handcuffed and helpless

without provocation at all or reasonable cause, causing severe

pain and injury to the Plaintiff. The Plaintiff had to go to the

hospital for emergency medical care.

ARGUMENTS OF LAW

There is no doubt that the Defendants violated the U.S. Con-

stitutional Rights of the Plaintiff by searching his house without

a search warrant, since the Plaintiff was arrested on the front

— A-23 —

sidewalk about 50 feet from the house. The Defendants

searched the house in order to find contraband, not to find

other people who mav injure them. The Defendants had the

Plaintiff handcuffed and helpless. The Defendants could have

secured the premises and obtained a search warrant but refused

to do so, violating the U.S. Constitutional Rights of the Plain-

tiff.

In a identical case at issue, the U.S. Supreme Court ruled in

Mincey v. Arizona, ___ U.S. ___ (No. 77-5353, June 21,

1978) that:

‘‘Nor can the search be justified on the ground that a

possible homocide inevitably presents an emergency situa-

tion, especially since there was no emergency threatening

life or limb, all persons in the apartment having been

located before the search began.’’

‘*The seriousness of the offense under investigation did not

itself create exigent circumstances of the kind that under

the Fourth Amendment justify a warrantless search, where

there is no indication that evidence would be lost,

destroyed, or removed during the time required to obtain a

search warrant and there is no suggestion that a warrant

could not easily and conveniently have been obtained.’’

Therefore, it is crystal clear that the Defendants acted in a

conspiracy to violation of the U.S. Constitutional Rights of the

Plaintiff to search his house without a search warrant, when in

fact the Defendants could easily have secured the house and

then obtained a search warrant from a judge. The Plaintiff was

50 feet from the house on the sidewalk, there was nobody in the

house to hurt the police, and the Defendant’s only purpose in

searching the house was in order to find contraband itself, not

to attempt to determine if there was any other people in the

house that would pose a danger to the police then. The Defen-

dants waited about an hour before searching the house by

an AR on

themselves or other unknown police officers, showing that it

was not an emergency situation indeed. The police should have

taken the time to obtain a search warrant.

RELIEF

WHEREFORE, PLAINTIFF PRAYS THAT THIS COURT

WILL GRANT THE FOLLOWING RELIEF:

1.) That this Court order the Defendants, including the

unknown police officers, to pay the Plaintiff the sum of

$1,000,000 (One Million Dollars) damages for the deliberate

and intentional violation of the U.S. Constitutional Rights of

the Plaintiff.

2.) That this Court declare that the Defendants violated the

U.S. Constitutional Rights of the Plaintiff by searching his

house without a search warrant.

Respectfully submitted,

/s/ Willie Mc Curry

FORMA PAUPERIS AFFIDAVIT AND OATH

I, WILLIE MC CURRY, do swear under oath that due to my

poverty that I am unable to pay the costs of these proceedings or

give securities thereof, that I have a meritorious action, and am

entitled to relief from this court.

I, WILLIE MC CURRY, first being duly sworn to under

oath, do depose and state that all statements herein are true and

correct to the best of my knowledge.

/s/ Willie Mc Curry

{[Jurat Omitted.]

— ©.

APPENDIX E

In the United States District Court

Eastern District of Missouri

Eastern Division

Willie McCurry,

Plaintiff,

VS. -S No. 78-717C(1)

Marvin Allen, et al.,

Defendants.

MOTION TO DISMISS AND MOTION

FOR PARTIAL SUMMARY JUDGMENT

Come now defendants and move this Court to enter its order

dismissing plaintiff’s complaint on the grounds:

1. That the complaint against the St. Louis Police Depart-

ment is based on respondent superior and as such cannot state a

claim upon which relief can be granted.

2. That the complaint alleging unlawful search cannot be

maintained and is barred by the doctrine of res judicata.

3. That the complaint alleging assault against unknown

police officers does not state a claim upon which relief can be

granted.

MOTION FOR PARTIAL SUMMARY JUDGMENT

Come now defendants and move this Court to enter judgment

in favor of defendants Marvin Allen and Steven Jacobsmeyer

on the grounds:

1. That attached hereto as Exhibit I is a certified copy of the

order of the Circuit Court regarding the search of plaintiff’s

— A-26 —

premises which holds that the search alleged in this complaint

was lawful.

2. That the allegations in this complaint regarding the illegal

search has been determined by a court of competent jurisdic-

tion, and, therefore, is res judicata.

WHEREFORE, defendants pray the Court to dismiss the

complaint or in the alternative to grant partial summary judg-

ment on the issue of the illegal search.

{Signature and certificate of service omitted.]

‘*‘EXHIBIT I”

STATE OF MISSOURI,

City of St. Louis,

Ss.

I, GEORGE M. SOLOMON, Clerk of the Circuit Court of

the City of St. Louis, for Criminal Causes, which said Court is a

Court of Record, having a Clerk and seal, certify that the above

and foregoing is a full, true and complete copy of MOTION TO

SUPPRESS and Memorandum of October 6, 1977, ruling on

MOTION TO SUPPRESS. in the cause of the State of

Missouri, plaintiff, vs WILLIE G. MC CURRY, CAUSE

#77-862 defendant, as fully as the same appears of record and

on file in my office.

WITNESS my hand and the seal of said Court hereto affixed,

at office, in the City of St. Louis, this 31st day of August A.D.

1978.

—_

/s/ George M. Solomon

Clerk of the Circuit Court of

the City of St. Louis. for

Criminal Causes.

[Remainder of Authentication Omitted.]

(‘EXHIBIT I’? CONTINUED]

Cause No. 77-862 ‘ IN THE

STATE OF MISSOURI CIRCUIT COURT

ve. > CRIMINAL CAUSES

CITY OF ST. LOUIS

WILLIE G. MC CURRY )

Oct. 6 1977

Defendant’s Motion to Suppress heard and submitted and

overruled in part and sustained in part as follows.

(a) Motion to suppress overruled as to those items found in

full view such as a gun and drugs on a dresser top and a

shotgun.

(b) Motion sustained as to drugs and items found in drawers

or among tires are suppressed.

CAUSES RETURNED TO DIV. 16

FOR FURTHER PROCEEDINGS

[SIGNATURES OMITTED.]

— A-28 —

(“EXHIBIT I’? CONTINUED]

In the Circuit Court

of the City of St. Louis

State of Missouri

State of Missouri,

Plaintiff,

VS. Cause No. 77-862

Willie Grady McCurry,

Defendant.

Charge: ASSAULT W. INT. TO KILL

ILLEGAL POSS OF HEROIN

MOTION TO SUPPRESS

(Filed September 16, 1977)

Defendant, by his counsel, moves the Court as follows:

1. There is now pending in this Court, the above captioned

cause, wherein the defendant is charged with: ASSAULT

WITH INTENT TO KILL (TWO COUNTS) and POSSES-

SION OF HEROIN

2. Your petitioner verily believes there is now in the hands of

officials of the State of Missouri, and available to the attorney

for the State of Missouri, evidence, which the State intends to

use against the defendant, in the nature of: A Pistol 22 Caliber,

and Heroin.

-

3. Your petitioner, respectfully moves the Honorable Court

to suppress said evidence on the grounds that it was obtained by

an unlawful and unconstitutional search and seizure, and as the

result of an illegal arrest, all in violation of the defendant’s

— A-29 —

rights under Sections 10, 15, 18a, and 19 of Article I of the Con-

stitution of the State of Missouri, and in violation of the defen-

dant’s rights under the 4th, Sth, 6th and 14th Amendments to

the Constitution of the United States of America.

WHEREFORE, the premises considered, your petitioner

moves the Honorable Court to suppress any and all evidence

alleged to have been seized at the time of or just prior to the ar-

rest of the defendant, and especially: A 22 Caliber Pistol and

Heroin.

[Signature Omitted.]

— A-30 —

APPENDIX F

In the United States District Court

For the Eastern District of Missouri

>

Will Curry,

illie McCurry Case No. 78-717C(1)

Plaintiff,

Motion for Summary

VS. . Judgment or Trial

Marvin Allen, et al, By Jury

Defendant.

/

COMES NOW THE PLAINTIFF PRO SE, WILLIE MC

CURRY, and prays that this Court grant summary judgment

for the Plaintiff, or in the alternative, grant a prompt trial by

jury on this civil rights complaint. In support of such relief, the

Plaintiff states:

1.) The Plaintiff is not suing the St. Lov's Police Dept., but

rather the police officers for the violation of his constitutional

rights.

2.) The complaint is not barred by res judicata because only

the Circuit Court of City of St. Louis has ruled that the search

was legal, and the federal courts have not ruled that the search

was legal. In Smith v. Sinclair, 424 F. Supp. 1108 (W.D. Okla.

1976), the federal district court had ruled on the issue of the

violation of the federal constitutional rights. Just because the

ste court has ruled against the Plaintiff regarding the legality of

the search and seizure does not bar the Plaintiff from seeking

judicial relief in the federal courts on the same issue. If that

were the case, then this court could not rule on any habeas cor-

pus petitons since the state circuit court and appeal courts rule

against the prisoner on the allegations of violation of his con-

stitutional rights. The Plaintiff is not seeking release from

prison or a new trial, only money damages, and therefore this

Court has jurisdiction to hold a trial in this matter.

— A-31 —

3.) The Defendants in their pleadings do not deny that

(a) the police officers did not obtain a search warrant, (b) the

police officers waited one hour prior to searching the house so

there is no claim of an emergency situation, (c) the police of-

ficers do not deny they could have secured the house and ob-

tained a search warrant prior to the search, (d) the police of-

ficers did not search the house for people who might harm the

police but to find contraband and drugs, (e) the Plaintiff was

arrested about 50 feet in front of the house and could not have

obtained weapons from the house as he was in custody and

handcuffed, and (f) that the Defendants did not know as police

officers that they had the obligation to obtain a search warrant

prior to searching the house. There is no doubt that the search

was unconstitutional. Mincey v. Arizona, ____ U.S. ____ (No.

77-5533, June 21, 1978); Agnello v. U.S., 269 U.S. 20; Preston

v. U.S., 376 U.S. 364; Chimel v. California, 395 U.S. 752

(1969).

4.) The Plaintiff that a police officer by the name of Sargeant

Burgdorf assaulted the Plaintiff while handcuffed, according to

trial transcript. The Plaintiff did not know the name of this of-

ficer at the time of the filing of the civil rights complaint. The

Plaintiffs alleged tht Sgt. Burgdorf used unnecessary amount of

force in beating the Plaintiff with a nightstick or nightclub while

Plaintiff was handicuffed behine his back, and this unjustified

assault is cruel and unusual punishment. The Defendants do not

claim that the amount of force used in striking the Plaintiff

while handcuffed.

WHEREFORE, PLAINTIFF PRAYS THAT THIS COURT

GRANT SUMMARY JUDGMENT OR ORDER A TRIAL BY

JURY PROMPTLY IN THIS CASE.

{Signature Omitted.]

A MOTION TO DISPENSE WITH THE PRINTING

OF THE APPENDIX WAS MADE AND GRANTED