Respondents Brief — Allen v. McCurry

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No. 79-935

| IN THE [_MICHAEL RODAK, JR, CLERR

Supreme Court of the Gnited States

OCTOBER TERM, 1979

MARVIN ALLEN, STEVEN JACOBSMEYER, UNKNOWN POLICE

OFFICERS, AND THE CITY OF ST. LOUIS POLICE

DEPARTMENT, Petitioners,

WILLIE MCCuRRY, Respondent,

On Writ Of Certiorari To The United States Court Of Appeals

For The Eighth Circuit

BRIEF FOR RESPONDENT

JEFFREY J. SHANK

ANDREW F. PUZDER

408 Olive Street, Suite 802

St. Louis, Missouri 63102

(314) 241-6116

Attorneys for Respondent

RRS CERES SR ER OF OTRO i IARC OL LE A

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C. -

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ........ 00... cece eee ee eee eens Vv

STATEMENT OF THE CASE... 0.0.00. cece eee eee eee eee 2

SUMMARY OF ARGUMENTS .........0000 cee e eee eee eees 4

EL 6 cowie ss easevevedbsccvcenesssegeeesbes 9

The Court Of Appeals Was Correct In Holding

Collateral Estoppel Inapplicable In Actions

Under 42 U.S.C. § 1983 Alleging Fourth

Amendment Violations Because: (1) Collateral

Estoppel Is An Inappropriate Doctrine In Such

Actions In Light Of The Civil Rights Act Of

1871’s Legislative History And The Importance

Of The Rights Protected Thereunder: And, (2)

This Court’s Decision In Stone v. Powell, 428

U.S. 465 (1976) Eliminated Habeas Corpus As

A Remedy For Fourth Amendment Claims

Litigated In State Courts, Thus Leaving In-

dividuals In Respondent’s Position Without

Any Means To Obtain A Viable Federal Forum

Other Than Section 1963 .....ccscccncssccees

A. Section 1983’s Legislative History Clearly

Requires That Respondent Be Provided

With A Federal Forum For His Fourth

Amendment Claim, Unencumbered By The

Doctrine Of Collateral Estoppel..........

B. The Opinion Of The Court Of Appeals Is

Consistent With Stone v. Powell, 428 U.S.

465 (1976) And Lower Court Decisions

Holding Collateral Estoppel Applicable In

Section 1983 Action Prior To Stone ......

C. Petitioner’s Interpretation As To The Ap-

plicability Of Collateral Estoppel Would

Deny A Federal Forum To Litigants With

Meritorious Fourth Amendment Claims,

Thereby Contravening Section 1983’s In-

ee eee ree re

D. General Principles Of Tort Law Are Not

Determinative Of The Issues In This Case .

Table of Contents Continued

PAGE

E. The Decision Below Gives Appropriate

Consideration To Federal-State Comity ... 32

F. The Federal Res Judicata Act, 28 U.S.C.

§ 1738 Is Inapplicable Under The Facts Of

4 * BRU Rr ere ae ern ee ep ee 34

Il. Respondent’s Claim Is Serious And Substantial

And Evinces State Court Unwillingness To Ad-

vance To Federal Court Holdings On Fourth

po er ree ie re eer eet a 36

III. Notwithstanding The Unavailability Of Federal

Habeas Corpus, Collateral Estoppel Is Inap-

plicable In The Instant Case As Concerns The

Basic Allegations In Respondent’s Complaint

Because (1) The State Court Held That Respon-

dent’s Fourth Amendment Rights Were

Violated: And, (2) No Court Has Considered

iy og Bh rere Pe 40

SNR i Ae a oa eulvisiad weed ewe as 49

TABLE OF AUTHORITIES

CASES: PAGE

Alexander v. Emerson, 489 F.2d 285 (Sth Cir. 1973) .... 17

American Mannex Corp. v. Rozands, 462 F.2d 688 (Sth

Cir.), cert. denied, 409 U.S. 1040 (1972).......... Vy Oe

Ames v. Vavreck, 356 F.Supp. 931 (D.Minn. 1973) ..... 47

Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966) ...... 47

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971).......... 20

Brazzell v. Adams, 493 F.2d 489 (Sth Cir. 1974)........ 21

Brewer v. Williams, 430 U.S. 387 (1977) ............. 22-23

Brown v. Chastian, 416 F.2d 1012 (Sth Cir. 1969), cert.

GOT FEE WD iths Fk GAFFE ove ck ceve ves vececuss 21

Brown v. DeLayo, 498 F.2d 1173 (10th Cir. 1974) ...... 21

Brubaker v. King, 505 F.2d 534 (7th Cir. 1974)......... 24

Carey v. Piphus, 435 U.S. 247 (1978) ............. 8, 44, 45

Chimel v. California, 395 U.S. 752 (1969) ............. 39

Clark v. Lutcher, 436 F.Supp. 1266 (M.D.Pa. 1977) .. 25, 28

Cohens v. Virginia, 19 U.S. (6 Wheat) 262 (1831)....... 28

Collum v. Butler, 421 F.2d 1257 (7th Cir. 1970) ........ 47

Corboy v. Conboy, 457 F.2d 251 (2d Cir. 1972) ........ 42

England v. Louisiana State Bd. of Med. Examiners, 375

SE eae CoN eke cb UROL R LE Aa SA KRKAS SOOO 30

Ex parte Virginia, 100 U.S. 339 (1880) .............0.. 10

Florida State Bd. of Dentistry v. Mack, 401 U.S. 960

DET a ee reese One Gh ae dina eins #4 ome tb Aa eos 16

Hahn v. Sargent, 388 F.Supp. 445 (D.Mass. aff’d. 523

F.2d 461 (ist Cir. 1975), cert. denied, 425 U.S. 904

rae aa a Te ae cies glu made oO 47

Table of Authorities Continued

CASES: PAGE

Hammer v. Town of Greenburgh, 440 F.Supp. 27

(S.D.N.Y. 1977), aff’d without opinion, 578 F.2d

kooky fe MMe rrr ey Seer Te 21

Harrison v. NAACP, 360 U.S. 167 (1959) ......... 5, 14, 15

Hostrop v. Board of Junior College Dist. No. 515, 523

F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963

CODTED: ons sw es cena tdde knee OR 45

Imbler v. Pachtman, 424 U.S. 409 (1976).............. 31

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

Geonied, 460 US. C46 (ISI ccc gccvicecsevevctenes 21

Lauchli v. United States, 405 U.S. 965 (1972) .......... 16

Lyons v. Westinghouse Elec. Corp., 222 F.2d 184 (2d

Cir.), cert. denied, 350 U.S. 825 (1955)............ 35

Martin v. Delcambre, 578 F.2d 1164 (Sth Cir. 1978) .... 21

Mastracchio v. Ricci, 498 F.2d 1257 (Ast Cir. 1974) ... 18, 21

25, 43

Meadows v. Evans, 550 F.2d 345 (Sth Cir. 1977) ....... 25

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

CORD Ge. SOG s v.vkvcckewedsdiaedeoseeees 21, 23, 24

Mincey v. Arizona, 437 U.S. 385 (1978) ........... 7, 8, 30,

36, 37, 38, 39, 40

Miranda v. Arizona, 384 U.S. 436 (1966) ............ aa, 22

Mitchum v. Foster, 407 U.S. 225 (1972) ............. 5, 10,

11, 13, 14, 15, 31, 32, 36

Monell v. New York City Dept. of Social Services, 436

SE. GO GEST ondx vcs Bade ecleetendadee meee 46

Monroe v. Pape, 365 U.S. 167 (1961) ............ 10, 14, 47

Montana v. United States, 440 U.S. 147 (1979) ..... 7, 31-32

Ney v. California, 430 F.2d 1285 (9th Cir. 1971) ....... 29

Owens v. Independence, US. , 100 S.Ct.

8, rears per eer 4, 9, 10, 19, 31, 46

Vil

Table of Authorities Continued

CASES: PAGE

Palma v. Powers, 295 F.Supp. 924 (N.D.IIl. 1969).... 21, 24

Paul v. Davis, 424 U.S. GBS (1976). oc. ccc ccceceuces 31

Phillips v. Trello, 502 F.2d 1000 (3d Cir. 1974)......... 46

Pierson v. Ray, 386 U.S. 547 (1967) .............. 6, 27, 29

Preiser v. Rodriguez, 411 U.S. 475 (1973) ............. 16

Red Fox v. Red Fox, 564 F.2d 361 (9th Cir. 1977)...... 35

Rimmer v. Fayetteville Police Dept., 567 F.2d 273 (4th

EU ec le Obs hing iin 0'e ect a dS 17, 18, 21, 25

Rodriguez v. Beame, 423 F.Supp. 906 (S.D.N.Y.

Cran neeudale puke Moda eeah ie eten eee aes 22, 23

Rosenberg v. Martin, 478 F.2d 529 (2d Cir.), cert.

denied, 414 U.S. 872 (1973)... qf... cc cee cece cece 47

Sexton v. Gibbs, 327 F.Supp. 134 (N.D.Tex. 1970),

aff’d., 446 F.2d 904 (Sth Cir. 1971), cert. denied,

Se SPs WU REUTED ik Seeds ccnd ese beeseeedes 45

Smith v. Sinclair, 424 F.Supp. 1108 (W.D.Okl. 1976) . 21, 22

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

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

Genied, GID U.S. 1095 CIGTS) oo cc ccc cc cee. 17, 21

United States v. Carter, 522 F.2d 666 (D.C.Cir. 1975)... 39

United States v. Gamble, 473 F.2d 1274 (7th Cir. 1973) . 39

United States v. Young, 553 F.2d 1132 (8th Cir.), cert.

ae Rn | rr errr 8, 39, 40

Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978).......... 21

CONSTITUTIONAL AND STATUTORY PROVISIONS:

a. So oS Sek wehbe dead eaeevaon passim

Seve, Ca, OIE, PREV oO Bin eck eccstcacccees 10, 15, 37

SN PE Sed oa chs oN de Rie Rao Cees 7, 34, 35, 36

I I ine was ga ba vie Ra 4 aie neu se eaew es 25

Vili

Table of Authorities Continued

CONSTITUTIONAL AND STATUTORY PROVISIONS: PAGE

SEI Sree ES Sh ceca m WANs OOb oe he ee dees 13, 36

a eB errr eer ere errr res 6, 27

¢ Re AL Rt haa has EAE Swe ae 6, 27

Civil Rights Act of 1871, 17 Stat. 13, 42 U.S.C. § 1983

ERA ee eae errr rare reer passim

LEGISLATIVE HISTORY:

Cong. Globe, 42nd Cong., Ist Sess......... S, fh, 3a 15,98

OTHER AUTHORITIES:

McCormack, Federalism and Section 1983: Limitation

on Judicial Enforcement of Constitutional Claims,

Part II, 6 Va. L. Rev. 250 (1974) .............06- 30

Thies, Res Judicata in Civil Rights Act Cases: An In-

troduction to the Problem, 70 N.W. L. Rev. 859

eating send oe ces Wee rae We kos cei ee eke 14

Comment, Collateral Estoppel in Section 1983 Actions

After Stone v. Powell: McCurry v. Allen, 64 Minn.

L. Rev. (forthcoming, June, 1980)................ 10

Comment, The Collateral Estoppel Effect of State

Criminal Convictions in Section 1983 Actions, 1975

aie iy Oe PEs cae aki 0 'o cnd new eeed eden’ 14

Note, Res Judicata: Exclusive Federal Jurisdiction and

the Effect of Prior State Court Determinations. 53

pe ee ree ere rer ere 35

No. 79-935

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

MARVIN ALLEN, STEVEN JACOBSMEYER, UNKNOWN POLICE

OFFICERS, AND THE CITy OF ST. LOUIS POLICE

DEPARTMENT, Petitioners,

WILLIE MCCURRY, Respondent.

On Writ Of Certiorari To The United States Court Of Appeals

For The Eighth Circuit

BRIEF FOR RESPONDENT

STATEMENT OF THE CASE

On July 17, 1978, respondent filed a claim under

section 1983 of the Civil Rights Act of 1871 (42 U.S.C.

§ 1983 (1970)) for damages against individual police of-

ficers, unknown police officers, and the City of St.

Louis Police Department alleging the following viola-

tions 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. 606 F.2d at 797

(Petition for Certiorari, A-5-A-6; A-21) (hereinafter Pet.

Cert.).'

In response thereto, petitioners filed their Motion to

Dismiss and Motion for Partial Summary Judgment.

(Pet. Cert. A-25). The District Court granted respon-

dent’s motion for summary judgment, dismissing

' Because this case is proceeding without an Appendix, citations

will be to the appendices to the petition for certiorari and/or direct-

ly to original documents in the record. Respondent is proceeding in

forma pauperis and with appointed counsel from the Court of Ap-

peals. Therefore, this Honorable Court is having respondent’s brief

printed from a manuscript prepared by counsel. Respondent is, of

course, most grateful and is quite sure the printing office will do its

normal excellent job. However, his counsel will be unable to ex-

amine page proofs before this brief is filed and would like to

apologize in advance for any typographical errors which may turn

up in this brief.

respondent’s entire complaint with prejudice on the

grounds that:

466

{T]he 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 constitu-

tionality of the search.

F. Supp. at 515-16 (Pet. Cert., A-3)

In reaching its determination, the District Court

relied upon an order issued by the Circuit Court of the

City of St. Louis, State of Missouri. This order dealt

with respondent’s motion to suppress evidence filed in

his state court criminal trial and circumstantially related

to the fourth amendment violation he alleges in his

federal court section 1983 action. The state court sus-

tained plaintiff’s motion for suppression in part, and

denied it in part. Substantively, the state court’s order

reads:

‘‘Defendant’s Motion to Suppress heard and sub-

mitted and overruled in part and sustained in part

as follows:

**(a) Motion to suppress overruled as to those items

found in plain 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.’’

(Pet. Cert., A-27).

On appeal, the Court of Appeals for the Eighth

Circuit reversed the District Court, concluding that

‘*because of the special role of federal courts in protec-

ting civil rights ... and because habeas corpus is now

unavailable to [respondent], see Stone v. Powell, 428

U.S. at 492-94 and n.37, it is our duty to consider fully,

unencumbered by the doctrine of collateral estoppel,

[respondent’s] § 1983: claims.’’ 606 F.2d at 799 (Pet.

Cert., A-10 - A-11). The Court specifically limited its

holding to illegal search and seizure claims brought

under section 1983 by persons denied federal habeas cor-

pus relief under Stone. 606 F.2d at 798 (Pet. Cert.,

A-19).

SUMMARY OF ARGUMENT

Respondent submits that the Court of Appeals cor-

rectly held collateral. estoppel inapplicable in the instant

action.

Section 1983’s statutory language and legislative history

are unequivocal. The statute admits of no defenses on

its face. Owens v. Independence, U.S. .

, 100 S.Ct. 1398, 1407 (1980). Its legislative

history establishes a clear congressional intent to provide

complainants alleging violations of their civil rights with

a federal forum, ‘‘State authorization in the premises to

the contrary notwithstanding.’’ Cong. Globe, 42d

Cong., Ist Sess., 416 (1871) (Representative Biggs). It is

also clear that the remedy provided by section 1983 ex-

tends to the actions of state courts. Mitchum v. Foster,

407 U.S. 225, 241-2 (1972). Congress simply determined

that the state courts standing alone were unable to ade-

quately protect federally created civil rights, and Con-

gress never altered its intent to make the federal courts

the guarantors of basic federal rights against state

power. Mitchum v. Foster, supra, 407 U.S. at 239; Har-

rison v. NAACP, 360 U.S. 167, 181 n.l (1959)

(Douglas, J., dissenting).

State courts act through their judgments and rul-

ings. Since section 1983 clearly extends to the actions of

state courts, such judgments and rulings cannot possibly

estop a federal court in a section 1983 action. To hold

collateral estoppel applicable in such cases would clearly

subvert the congressional intent underlying section 1983.

Nonetheless, certain federal courts have applied col-

lateral estoppel in section 1983 actions. The better

reasoned of these cases have premised the applicability

of collateral estoppel on the availability of federal

habeas corpus relief. Although perhaps in conflict with

section 1983’s legislative history, this approach is at least

logically sound since habeas corpus provides a federal

forum and thereby satisfies the congressional intent

underlying section 1983. The decision below is consistent

with such cases because the Court of Appeals premised

its refusal to apply collateral estoppel on _ the

unavailability of federal habeas corpus for search and

seizure claims under Stone v. Powell, 428 U.S. 465

(1976). Following Stone, section 1983 is respondent’s

only viable avenue into federal court. No other Circuit

has addressed the collateral estoppel issue in this con-

text.

If collateral estoppel is held to apply in the instant

case, criminal defendants compelled into state court will

be forced to choose between litigating their fourth

amendment claims in state court or increasing the

possibility of conviction by holding such claims back for

litigation in a subsequent section 1983 federal action.

Congress intended to grant complainants a_ federal

forum through section 1983, not a Hobson’s choice bet-

ween federal court and a state conviction.

Holding collateral estoppel inapplicabie in the ins-

tant case should not open the floodgates of litigation.

The Court of Appeals limited its opinion to a restricted

group of cases in which there is a special need after

Stone for access to a federal forum. The Federal Rules

of Civil Procedure contain adequate means for dealing

with frivolous claims. See Fed. R. Civ. P. 12(b) (6) &

56. Police officers acting with a good faith reasonable

belief in the legality of their actions need not fear vex-

atious lawsuits under section 1983 because they will have

qualified immunity. See, e.g., Pierson v. Ray, 386 U.S.

547 (1967). However, to hold collateral estoppel ap-

plicable im the instant case would preclude meritorious

claims from reaching the federal courts, thereby subver-

ting the congressional intent underlying section 1983. As |

concerns respondent’s claim, the Court of Appeals

characterized it as ‘‘serious and substantial.’’ 606 F.2d

at 799 (Pet. Cert., A-11).

Moreover, to hold collateral estoppel inapplicable

would comport with doctrines of federal-state comity.

Section 1983 simply provides a damages remedy, it does

not overturn state court criminal convictions, release the

guilty, or require a new trial.

General principles of tort law or rules of preclusion

as evinced by Montana v. United States, 440 U.S. 147,

153-4 (1979) and 28 U.S.C. § 1738 are inapplicable in

the instant case because the special circumstances set

forth above arising from the nature of section 1983 re-

quire an exception to such general rules of preclusion.

Both Montana, supra, 440 U.S. at 155, and cases inter-

preting section 1738 (See, e.g., American Mannex Corp.

v. Rozands, 462 F.2d 688, 690 (Sth Cir.), cert. denied,

409 U.S. 1040 (1972) recognize the appropriateness of

such exceptions.

Thus, the Court of Appeals decision is well founded

and should be affirmed.

As an additional point in support of the need for a

federal forum to protect fourth amendmert rights,

respondent notes that the state court’s opinion admitting

certain evidence at respondent’s trial and as affirmed by

the Missouri Court of Appeals is in conflict with federal

constitutional pronouncements both by this Court in

Mincey v. Arizona, 437 U.S. 385 (1978) and the Eighth

Circuit in United States v. Young, 553 F.2d 1132 (8th

Cir.), cert. denied, 431 U.S. 959 (1977). In the instant

case, Officer Brand, the ‘‘seizing officer’’ (606 F.2d at

796 (Pet. Cert., A-5), was permitted to enter respon-

dent’s home based on a murder scene exigent cir-

cumstances rationale, after any apparent exigencies had

subsided, specifically to conduct a search for evidence,

not a search for occupants. At the time Officer Brand

conducted this search, there were approximately thirty-

five officers at the scene to guard against the loss or

destruction of evidence, had the police decided to obtain

a warrant. Yet, no warrant was sought or granted. This

is exactly the kind of search this Court held unconstitu-

tional in Mincey and the Eighth Circuit held unconstitu-

tional in Young.

Even apart from the foregoing, respondent has an

action against petitioners for an unconstitutional search

and seizure under section 1983 unimpeded by collateral

estoppel because the state court suppressed certain

evidence. (Pet. Cert., A-27). Unquestionably, as the

record stands, there was illegal search of respondent’s

home, and the state court so held. Whether respondent

can recover damages for this search is, of course, a mat-

ter for trial. However, there is no question but that

respondent can at least recover nominal damages. Carey

v. Piphus, 435 U.S. 247 (1978).

ARGUMENT

I. The Court Of Appeals Was Correct In Holding

Collateral Estoppel Inapplicable In Actions

Under 42 U.S.C. § 1983 Alleging Fourth

Amendment Violations Because: (1) Collateral

Estoppe! Is An Inappropriate Doctrine In Such

Actions In Light Of The Civil Rights Act Of

1871’S Legislative History And The Importance

Of The Rights Protected Thereunder: And, (2)

This Court’s Decision In Stone v. Powell, 428

U.S. 465 (1976) Eliminated Habeas Corpus As

A Remedy For Fourth Amendment Claims

Litigated In State Courts, Thus Leaving In-

dividuals In Respondent’s Position Without

Any Means To Obtain A Viable Federal Forum

Other Than Section 1983.

A. Section 1983’S Legislative history clearly re-

quires that respondent be provided with a

federal forum for his Fourth Amendment

claim, unencumbered by the Doctrine of Col-

lateral Estoppel.

Section 1983’s statutory ‘‘language is absolute and

unqualified; no mention is made of any privileges, im-

munities, or defenses that may be asserted.’’ Owens v.

Independence, U.S. ; , OS. G2:

1398, 1407 (1980). It unequivocally imposes liability

upon ‘‘every person’’ who, under color of state law or

custom ‘‘subjects, or causes to be subjected, any citizen

of the United States .... to the deprivation of any

rights, privileges or immunities secured by the Constitu-

tion and laws... .’’ 42 U.S.C. § 1983 (See Petitioner’s

Brief, p.3) (Hereinafter Pet. Br.).

Because the applicability of any particular defense

in section 1983 actions is a matter of statutory inter-

pretation, the Civil Rights Act’s legislative history is of

particular import. See Owens v. Independence, i

, 100 S. Ct. 1398, 1407 (1980). Section 1983 was

Originally enacted as section | of the Civil Rights act of

1871. 17 Stat. 13. It was specifically designed to enforce

the fourteenth amendment and thereby establish ‘‘the

role of the Federal Government as the guarantor of

basic federal rights against state power... .”’ Mitchum

v. Foster, 407 U.S. 225, 239 (1972). Section 1983’s

legislative history plainly establishes that Congress

enacted this legislation to provide a federal forum for

litigants in respondent’s position to protect their federal-

ly guaranteed constitutional rights. See Monroe v. Pape,

365 U.S. 167, 180 (1961). See generally Comment, Cel-

lateral Estoppel in Section 1983 Actions After Stone v.

Powell: McCurry vy. Alien, 64 Minn. Rev. (forth-

coming June, 1980).

This Honorable Court has expressly noted that

[i]t is clear from the legislative debates surrounding

passage of § 1983’s predecessor that the Act was in-

tended to enforce the provisions of the Fourteenth

Amendment ‘‘against State action, ... whether

that action be executive, legislative, or judicial.’’ Ex

parte Virginia, 100 U.S. 339, 346, 25 L..Ed. 676

(emphasis supplied). Proponents of the legislation

noted that state courts were being used to harass

and injure individuals, either because the state

courts were powerless to stop deprivations or were

in league with those who were bent upon abroga-

tion of federally protected rights.

Mitchum vy. Foster, supra, 407 U.S. at 240.

Various statements by the legislators involved in the

Civil Rights Act’s enactment leave no doubt that, as

noted by this Court in Mitchum v. Foster, supra, 407

U.S. at 238-42, Congress was concerned with the inabili-

ty of state courts to protect individual rights and intend-

ed to place responsibility for the ultimate protection of

such rights in the federal courts. As stated by Represen-

tative Lowe, the

records of the [state] tribunals are searched in vain

for any evidence of effective redress [of federally

secured rights] .... What less than this [the Civil

Rights Act of 1871] will afford an adequate

remedy? The Federal Government cannot serve a

writ of mandamus upon State Executives or upon

State courts to compel them to observe and protect

the rights, privileges and immunities of citizens... .

The case has arisen... when the Federal Govern-

ment must resort to its Own agencies to carry its

own authority into execution. Hence this bill throws

open the doors of the United States courts to those

whose rights under the Constitution are denied or

impaired.

Cong. Globe, 42d Cong., Ist Sess., 374-6 (1871)

(hereinafter Cong. Globe).

Representative Perry stated:

Sheriffs, having eyes to see, see not; judges, having

ears to hear, hear not; witnesses conceal the truth

or falsify it; grand and petit juries act as if they

might be accomplices .... [AJll the apparatus and

machinery of civil government, all the processes of

justice, skulk away as if government and justice

were crimes and feared detection. Among the most

dangerous things an injured party can do is to ap-

peal to justice.

Cong. Globe at App. 78.

Representative Kerr, speaking in opposition to the

Civil Rights Act’s passage, stated that section 1983’s

predecessor

gives to any person who may have been injured in

any of his rights, privileges, or immunities of per-

son or property, a civil action for damages against

the wrongdoer in Federal courts.

Cong. Globe at App. 50.

Senator Thurman, speaking in the same vein, stated

that section 1983’s predecessor

authorizes any person who is deprived of any right,

privilege, Or immunity secured to him by the Con-

stitution of the United States, to bring an action

against the wrongdoer in the Federal courts, and

that without any limit whatsoever as to the arnount

in controversy. The deprivation may be of the

slightest conceivable character, the damages in the

estimation of any sensible man may not be five

dollars or even five cents; they may be what lawyers

call merely nominal damages; and yet by this sec-

tion jurisdiction of that civil action is given to the

Federal courts instead of its being prosecuted as

now in the courts of the States.

Cong. Globe at App. 216.

Representative Coburn stated most eloquently:

The United States courts are further above mere

local influence than the county courts; their judges

can act with more independence; cannot be put

under terror, as local judges can; their sympathies

are not so nearly identified with those of the

vicinage. . . .We believe we can trust our United

States courts, and we propose to do so.

Cong. Globe at 460.

In describing the Act, Representative Biggs seems to

have been addressing the very issue of collateral estoppel

when he stated:

First, for the violation of the rights, privileges, and

immunities of the citizen a civil remedy is to be had

by proceedings in the Federal courts, State

authorization in the premises to the contrary not-

withstanding.

Cong. Globe at 416

The congressional debates over section 1983’s

predecessor were not even about whether the Act ‘‘ex-

tended to actions of state courts, but whether this in-

novation was necessary or desirable.’ Mitchum vy.

Foster, supra, 407 U.S. at 241-2 (footnote omitted).

Thus, this Court has held that 28 U.S.C. § 2283,

which is an absolute bar to injunctions against state

court proceedings in most suits, does not apply to a suit

brought under section 1983 seeking to enjoin state court

proceedings. Mitchum v. Foster, supra, 407 U.S. at

242-3. In so holding, the Court concluded that section

1983’s legislative history

makes evident that Congress clearly conceived that

it was altering the relationship between the State

and the Nation with respect to the protection of

federally created rights; it was concerned that state

instrumentalities could not protect those rights, it

realized that state officers might, in fact, be an-

tipathetic to the vindication of those rights; and it

believed that. these failings extended to the state

courts.

Mitchum v. Foster, supra, 407 U.S. at 242. See also,

Monroe v. Pape, 365 U.S. 167, 172-83; Harison v.

NAACP, 360 U.S. 167, 181 n.1 (1959) (Douglas, J.,

dissenting); Theis, Res Judicata in Civil Rights Act

Cases: An Introduction to the Problem, 70 Nw. LRev.

859, 866-68 (1976); Comment, The Collateral Estoppel

Effect of State Criminal Convictions in Section 1983 Ac-

tions, 1975 U. Ill. L.R. 95, 98-99 (1975).

Contrary to petitioner’s assertion that section 1983’s

legislative history ‘‘is probably bes: described as

equivocal’’ (Pet. Br., p. 19) the foregoing sources make

it evident that the Congress which passed section 1983

had little faith in the ability of state courts to fairly ad-

judicate federal constitutional claims, and that it

specifically intended to provide a federal remedy to pro-

tect such rights even where adequate staie remedies ex-

isted. Congressional concern was centered on the protec-

tion of individual rights, not federalism, judicial

resourses, comity, the federal case load, or other policies

underlying the doctrine of collateral estoppel.

Congress has never altered its intent to make

federal courts the primary protectors of constitutional

rights through section 1983. As noted by Justice

Douglas:

The choice made in the Civil Rights Acts of 1870

and 1871 to utilize the federal courts to insure the

equal rights of the people was a deliberate one,

reflecting a belief that some state courts, which

were charged with original jurisdiction in the nor-

mal federal-question case, might not be hospitable

to claims of deprivation of civil rights. Whether or

not that premise is true today, the fact remains that

there has been no alteration of the congressional in-

tent to make the federal courts the primary protec-

tor of the legal rights secured by the Fourteenth and

Fifteenth Amendments and the Civil Rights Acts.

Harrison v. NAACP, 360 U.S. 167, 181 n.1 (1959)

(Douglas, J., dissenting).

Given section 1983’s unequivocal legislative history,

it is difficult to see how any question would arise as to

whether a state court decision on constitutional issues

could have collateral estopel effect in a federal court ac-

tion under section 1983. Congress plainly intended that

section 1983 would extend to state court actions involv-

ing federally protected constitutional rights. Mitchum v.

Foster, supra 407 U.S. at 241-2. State courts act through

their judgments and rulings. How then can a state court

judgment or ruling on issues involving federally pro-

tected constitutional rights estop a federal court in an

action under section 1983. Clearly, if congressional in-

tent is to be fulfilled, collateral estoppel is wholly inap-

plicable under these circumstances.

Various Supreme Court Justices have, in fact, in-

dicated that traditional notions of collateral estopel and

res judicata may be inapplicable in Civil Rights Act

cases; while no Supreme Court case has directly held

these doctrines applicable. See Preiser v. Rodriquez, 411

U.S. 475, 509 n.14 (1973) (Brennan, J., dissenting with

Douglas, J., and Marshall, J., joining in dissent);

Lauchli v. United States, 405 U.S. 965, 965-8 (1972)

(Douglas, J., dissenting from denial of certiorari);

Florida State Bd. of Dentistry v. Mack, 401 U.S. 960,

961-2 (1971) (White dissenting from denia! of certiorari

with Burger, C.J., joining in dissent).

B. The opinion of the Court of Appeals is

consistent with Stone v. Powell, 428 U.S.

465 (1976) and lower court decisions

holding collateral estoppel applicable in

section 1983 action prior to Stone.

Notwithstanding the foregoing unequivocal

legisiative history, many federal courts have held col-

lateral estoppel applicable in actions under section 1983.

The courts that considered section 1983’s legislative

history often expressly qualified their holdings on the

availability of an alternative federal forum for section

1983 complainants throuzh habeas corpus. See, e.g.,

Rimmer v. Fayetteville Police Dept., 567 F.2d 273, 276

(4th Cir. 1977); Thistlethwaite v. 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. Mitchel 354 F. Supp. 86

(E.D. Va. 1973).

For example, in Moran v. Mitchell, 354 F. Supp. 86

(E.D. Va. 1973), the plaintif was arrested and convicted

on the basis of evidence obtained in a search of is car.

The state court denied his motion to suppress, and the

appellate court denied him leave to appeal. Plaintiff

then brought a section 1983 suit for damages and

simultaneously petitioned the federal district court for a

writ of habeas corpus. The section 1983 suit defendants

moved for summary judgment asserting the collateral

estoppel effect of the state court judgment. Jd. at 87.

The Court noted that to apply collateral estoppel in

a section 1983 suit puts state criminal defendants to a

‘*Hobson’s choice.’’ /d. at 88. If such a defendant con-

tests this constitutionality of a search at the state level,

then he may not sue for damages in federal court if his

motion to suppress is overruled. However, if he

preserves the issue for a federal damages action, he in-

creases the possibility of conviction. /d.

The Court also expressed ‘‘some doubt”’ as to the

applicability of collateral estoppel in section 1983 cases.

Id. This doubt stemmed ‘‘from the clear congressional

purpose behind the Civil Rights Act of providing a

federal remedy to litigants who possess a state remedy in

theory, but not in practice.’’ Jd. However, the court

found that in this case federal habeas corpus available

to ‘‘satisfy the congressional concerns behind the Civil

Righis Act.’’ /d. at 89. It held that a state conviction

would collaterally estop a section 1983 plaintiff only if

relief by way of habeas corpus was available to him, or

he had unsuccessfully challenged his conviction in a

habeas proceeding. /d. at 89-90.

This approach to section 1983 litigation is at least

logically sound, although perhaps in conflict with the

above stated legislative history. Habeas corpus does pro-

vide individuals with a federal forum, thereby satisfying

congressional concern that such a forum be available.

Moreover, the ability to bring a habeas corpus action in-

directly preserves the possibility of gaining access to a

federal forum for a section 1983 action. If a criminal

defendant is successful in his habeas action, the prior

state judgment no longer has collateral estope! effect

and he can proceed with his section 1983 action. See

Rimmer v. Fayeteville Police Dept., 567 F.2d 273, 277

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

1257, 1260 n.2 (Ist Cir. 1974 (dictum)).

However, in light of this Court’s decision in Stone

v. Powell, 428 U.S. 465 (1976), the habeas corpus

justification for applying collateral estoppel in section

1983 cases involving fourth amendment claims is no

longer valid. In Stone this Court held that where a state

court ‘thas provided an opportunity for full and fair

litigation of Fourth Amendment claims,’ relief by way

of habeas corpus is unavailable since the deterrent effect

of such relief on unlawful police conduct is minimal.

428 U.S. at 494-96. Since, under Stone, habeas corpus is

no longer available to the great majority of state

criminal defendants alleging fourth amendment viola-

tions, the Court below held collateral estoppel inap-

plicable in the instant case. 606 F.2d at 799 (Pet. Cert.

A-10, A-1i).

Petitioners have alleged that the opinion below is in

conflict with this Court’s holding in Stone, emphasizing

comments in Stone as to limited judicial resources,

judicial economy, and federal-state comity. (Petitioners’

Brief, p.27) (hereinafter Pet. Br.). It is in this respect

that petitioners most seriously misread not.only Stone,

but section 1983’s purpose and legislative history.

Clearly, this Court’s major concern in Stone was

whether relief by way of habeas corpus in cases involv-

ing alleged violations of fourth amendment rights fur-

thered the ‘‘primary justification’’ for the exclusionary

rule, /.e., deterrence of illegal police practices. 428 U.S.

at 486. It rejected habeas corpus as a viable means for

reviewing state court exclusionary rule decisions because

the ‘‘additional contribution [to the deterrence justifica-

tion], if any, of the consideration of search-and-seizure

claims of state prisoners on collateral review is small in

relation to the costs.’’ Jd. at 493 (portion in brackets ad-

ded). As concerns section 1983, however, this Court

recently noted that it ‘‘was intended not only to provide

compensation to the victims of past abuses, but to serve

as a deterrent as well. Owens v. Independence, cupra

io 2 .: 106 Ct. at 1416 (citations omit-

ted).

The societal costs of applying the exclusionary rule

which concerned this Court in Stone were that,

the focus of the trial, and the attention of the par-

ticipants therein, are diverted from the ultimate

question of guilt or innocence that should be the

central concern in a criminal proceeding. Moreover,

the physical evidence sought to be excluded is

typically reliable and often the most probative in-

formation bearing on the guilt or innocence of the

defendant.

Id. at 489-90 (footnotes omitted). The major cost of the

rule is, therefore, that it ‘‘deflects the truthfinding pro-

cess and often frees the guilty.’’ Id. at 490. A section

1983 action, however, neither ‘‘deflects the truthfinding

process’’ nor does it ‘‘free the guilty.’’ Jd. at 490. It

merely provides a damage remedy and deterrence.

Moreover, Chief Justice Burger, concurring in S/one,

partially justified the elimination of habeas corpus relief

as a remedy for fourth amendment claims on the need

for alternative remedies. /d. at 500-01 (Burger, C.J.,

concurring). As indicated by the foregoing legislative

history and as stated by the Court of Appeals below,

‘*fa] § 1983 damage action is clearly one of the more ob-

vious of such alternative remedies.’’ 606 F.2d at 799

(Pet. Cert. A-10).? |

? However, the Chief Justice has also noted that section 1983

standing alone would be insufficient to protect fourth amendment

rights. See Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388, 421 (1971) (Burger, C.J.,

dissenting). (‘‘The problems of both error and deliberate miscon-

duct by law enforcement officials call for a workable remedy.

Private damage actions against individual police officers concededly

have not adequately met this requirement, and it would be

fallacious to assume today’s work of the Court in creating a remedy

will really accomplish its stated objective.’’).

As to the cases cited by petitioners for the proposi-

tion that ‘‘lower federal courts have consistently

recognized the appropriateness of applying principles of

res judicata and collateral estopel in § 1983 actions,”’

(Pet. Br., p. 17), it is noteworthy that this Court decid-

ed Stone on June 6, 1976. Most of the cases cited by

petitioners were decided prior to Stone and/or did not

involve search-and-seizure claims. Therefore, these cases

did not consider the absence of federal habeas corpus

review of state court decisions on search and seizure

claims.’ Moreover, certain of the cases cited by peti-

tioners are distinquishable from the instant case on

other grounds.

For example, in Smith v. Sinclair, 424 F. Supp.

1108 (W.D. Okl. 1976), the court totally failed to ad-

> See, e.g., Martin v. Delcambre, 578 F.2d 1164 (Sth Cir. 1978)

(no search and seizure claim); Winters v. Lavine, 574 F.2d 46 (2d

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

273, 276 (4th Cir. 1977) (same); Mastracchio v. Ricci, 498 F.2d

1257 (ist Cir. 1974), cert. denied, 420 U.S. 909 (1975) (no search

and seizure claim, prior to Stone); Brown v. DeLayo, 498 F.2d

1173 (10th Cir. 1974) (same); Thistlethwaite v. New York, 497 F.2d

339 (2d Cir.), cert. denied, 419 U.S. 1093 (1974) (same, court ap-

plied collateral estoppel in partial reliance on availability of habeas

corpus remedy); Brazzell v. 4dams, 493 F.2d 489 (Sth Cir. 1974)

(same); Metros v. United States District Court, 441 F.2d 313 (10th

Cir. 1971) (prior to Stone); Kauffman v. Moss, 420 F.2d 1270 (3rd

Cir.), cert. denied, 400 U.S. 846 (1970) (mo search and seizure

claim, prior to Stone); Brown v. Chastian, 416 F.2d 1012 (Sth Cir.

1969), cert. denied, 397 U.S. 951 (1970) (no search and seizure

claim, prior to Stone); Hammer v. Town of Greenburgh, 440 F.

Supp. 27 (S.D.N.Y. 1977), a/f’d without opinion, 578 F.2d 1368

(2d Cir. 1978) (no search and seizure claim); Pe!ma v. Powers, 295

F. Supp. 924 (N.D. Ill. 1969) (prior to Stone).

dress the availability of a federal forum issue. However,

this was appropriate in Smith because the plaintiff’s

original criminal trial had been in a federal court. 424 F.

Supp. at 1110. The Court specifically noted that most of

the issues plaintiff raised on appeal ‘‘were precisely the

same issues presented to the federal court in his bank

robbery trial and directly determined by the court

adversely to him.’’ Jd. at 1111. The Court in Smith had

no reason to address the issues presented in the instant

case. The plaintiff in Smith had his federal forum, and

section 1983’s legislative intent to provide such a forum

was Satisfied.

Rodriquez v. Beame, 423 F. Supp. 906 (S.D.N.Y.

1976) is perhaps worthy of some note because it was

decided on December 21, 1976, five months after Stone.

However, the court makes no reference to Stone, nor

does it discuss section 1983’s legislative intent to provide

a federal forum.

The plaintiff in Rodriquez alleged two constitu-

tional violations: (1) an arrest without probable cause;

and (2) absence of Miranda warnings, and the use of

threats, trickery, and force in obtaining confessions. 423

F. Supp. at 907. The court found that collateral estoppel

precluded relitigation of the issues decided adversly to

plaintitf at his state court suppression hearing. It stated

that the supression hearing held that plaintiff’s confes-

sions given after arrest and interrogatio: were lawful.

Id. at 907.

Alleged violations of an individual’s Miranda rights

may still be raised by way of aabeas corpus. See Brewer

v. Williams, 430 U.S. 387 (1977) (by implication). S/one

applies only to fourth amendment claims. Thus, the

court in Rodriquez may have considered the plaintiff’s

claim as basically involving Miranda rights and felt no

need to consider Sfone or the availability of a federal

forum. This conclusion is strengthened by the court’s

total failure to mention plaintiff’s fourth amendment ar-

rest without probable cause claim after its initial

recognition that such a claim was before it. The court

never mentions whether the state court made a specific

finding on plaintiff’s fourth amendment claim. While it

is unclear exactly what the court in Rodriquez con-

sidered in reaching its holding, it is clear that the court

totally failed to discuss section 1983’s legislative intent

to provide a federal forum. Notwithstanding the forego-

ing, it is noteworthy that not even the court in

Rodriguez dismissed the plaintiff’s claim with prejudice,

as the trial court did in the instant case. The court in

Rodriguez dismissed the complaint with the caveat that

the case would be re-opened if the suppression hearing

decision was overruled. 423 F. Supp. 908. Given the

availability of habeas corpus for the presentation of

cases involving alleged violations of an _ individual’s

Miranda rights, the plaintiff in Rodriguez might well

have had his suppression hearing decision reversed in

federal court subsequent to the dismissal of his section

1983 action.

in their Petition for Writ of Certiorari, petitioners

placed significant reliance upon Metros v. United States

District Court, 441F.2d 313 (10th Cir. 1971) (Pet. Cert.,

P. 15-16). They also cite this case in their brief (Pet.

Br., p. 17). As noted above, Metros was decided prior

to Stone and, therefore, the Tenth Circuit could not

possibly have addressed the issues resolved by the court

below. Moreover, the plaintiff in Metros unsuccessfully

sought relief in the state and federal courts prior to

bringing his action under the Civil Rights Act for

damages. 441 F.2d at 314. The Court in Metros quoted

Palma v. Powers, 295 F. Supp. 924 (N.D. Ill. 1969), a

section 1983 action, noting that relitigation of the issues

decided by the state court was unnecessary because

‘** ‘the litigant is afforded an avenue for relief from er-

roneous Or unjust decision in the first court by appeal or

some other appropriate means of re-examination.’ ’’ 441

F.2d at 317. In Metros, the plaintiff had already been

afforded an ‘‘appropriate means of re-examination’’ and

a federal forum through the utilization of federal habeas

corpus relief. Jd. Respondent in the instant case will not

have this opportunity if the trial court’s judgment is

upheld. There was also a noteworthy concurrence by

Judge Holloway in Metros, arguing that collateral estop-

pel was inapplicable because the issues presented in state

court were not identical to those in plaintiff’s civil rights

action. 441 F.2d 318-19. See also, Brubaker v. King,

505 F.2d 534 (7th Cir. 1974).

In a more recent case, cited by petitioners (Pet. Br.,

p. 17), the Fourth Circuit stated that it did not ‘‘see any

practical problem’’ with applying collateral estoppel in

section 1983 cases,

as long as the state prisoner-plaintiff has or has

had, access to a federal forum for the determina-

tion of his federal constitutional claims. Most state

court prisoners do have such a right of access

through 28 U.S.C.A. § 2254, but there are excep-

tions. Under Stone v. Powell, 428 U.S. 465, 96

S.Ct. 3037, 49 L.Ed.2d 1067 (1976), state court

prisoners complaining of searches and_ seizures

would usually have no such access to a federal

forum. Others may be unable to meet the ‘‘in

custody’’ requirement of § 2254, and never could

have met it. Application of the rule of preclusion

by reason of a state court conviction in those cases,

therefore, may deny a state court prisoner access to

a federal forum entirely. Since it was the general in-

tention of the Civil Rights Act to provide access to

a federal forum for the adjudication of federal con-

stitutional rights, the Civil Rights Act itself may

present a bar to foreclosure of the issue in those

cases. This problem has been noted by others, in-

cluding Judge Goldberg in his separate opinion in

Meadows v. Evans, 550 F.2d 345 (Sth Cir. 1977);

by Judge Coffin in Mastracchio v. Ricci, 498 F.2d

1257, 1260 n.2 (Ist Cir. 1974); by Judge Merhige in

Moran v. Mitchell, 354 F.Supp. 86 (E.D.Va. 1973).

Rimmer vy. Fayetteville Police Dept., 567 F.2d 273, 276

(4th Cir. 1977).

The only case, other than the Eighth Circuit’s opi-

nion below, to respondent’s knowledge, that discusses

collateral estoppel, section 1983, and Stone in reaching

its holding is Clark v. Lutcher, 436 F. Supp. 1266 (M.D.

Pa. 1977). Clark held collateral estoppel inapplicable in

section 1983 actions involving fourth amendment rights.

C. Petitioner’s interpretation as to the ap-

plicability of collateral estoppel would

deny a federal forum to litigants with

meritorious fourth amendment claims,

thereby contravening section 1983’s intent

and purpose.

Petitioners assert that ‘‘a majority, perhaps a

significant majority, of § 1983 claims filed against State

officials, including law enforcement officers, especially

those filed by convicted and imprisoned felons, are in-

substantial and even frivilous’? and that should this

Court fail to apply collateral estoppel in such cases ‘‘the

risk will be enhanced that harassed District Judges may

pay insufficient attention to meritorious claims.’’ (Pet.

Br. p.14-15). This Machiavelian approach to law en-

forcement sets the tenor for petitioners’ entire brief (as

well as the Americans for Effective Law Enforcement,

et al.’s Amicus Curiae Brief). In effect, petitioners are

asking this Court to ignore section 1983’s legislative in-

tent, and all meritorious claims that should be filed

thereunder in the future, because there may also be in-

substantial claims. Certainly this is not the approach to

be taken by the guarantors of those rights we hold most

sacred in a free society, including the right to be free

from unconstitutional searches and seizures.

Moreover, there is no need to fear an onslaught of

groundless civil actions. The opinion below did not

create a general exception to the applicability of col-

lateral estoppel in all section 1983 cases, but only in a

restricted group of cases in which there is a special need

after Stone for access to a federal forum. The Federal

Rules of Civil Procedure provide wholly adequate means

for dealing with groundless lawsuits which might arise

within this restricted group of cases. If a complainant is

unable to allege facts sufficient to state a cause of ac-

tion, his cause will be dismissed under Fed. R. Civ. P.

12 (b) (6). If he is unable to demonstrate the existence

of any material issues of fact, summary judgment under

Fed. R. Civ. P. 56 will dispose of his case.

Nor do law enforcement officers who act with a

good faith-reasonable belief in the legality of their ac-

tions need fear vexatious or frivolous lawsuits. A good

faith-reasonable belief in legality is a complete defense

under section 183, even if the challenge conduct actually

violated an individuals constitutional rights. See, e.g.,

Pierson v. Ray, 386 U.S. 547 (1967). If law enforcement

officers act in bad faith or without a reasonable belief in

legality, they should be liable in an action under section

1983.

The real problem is that, should this Court uphold

the applicability of collateral estoppel, federal district

courts will be tempted to totally dismiss meritorious

claims even though collateral estoppel is only arguably

applicable to a portion of a cause. This is exactly what

occurred in the instant case. See 466 F. Supp. at 515;

(Pet. Cert., A-1 - A-3). Furthermore, litigants with

meritorious fourth amendment claims, in which a state

court decision was simply wrong, will never be provided

with the federal forum contemplated by Congress in

enacting section 1983. As to respondent’s claim, the

Court below specifically noted its meritorious nature

and characterized it as ‘‘serious and substantial.’’ 606

F.2d at 799 (Pet. Cert., A-11).

Congress, through section 1983, intended to provide

litigants in respondent’s position with a federal forum in

which to vindicate their constitutional claims. Lacking a

habeas corpus remedy, section 1983 is respondent’s only

avenue into federal court. As stated by Chief Justice

Marshall, the courts have ‘‘no more right to decline the

exercise of jurisdiction which is given, than to usurp

that which is not given.’’ Cohens v. Virginia, 19 U.S. (6

Wheat) 262, 404 (1831). It would simply be unthinkable

for the branch of government entrusted with the protec-

tion of individual constitutional rights to avoid hearing

meritorious cases because insubstantial cases might be

filed.

Moreover, as noted in Moran v. Mitchell, supra,

354 F. Supp. at 88 and Clark v. Lutcher, supra, 436 F.

Supp. at 1272, state court criminal defendants who

choose to litigate their fourth amendment claims in a

federal forum will truly be put to a Hobson’s choice

should this Court hold collateral estoppel applicable in

the instant case. Should this Court so hold, a state court

criminal defendant with a valid fourth amendment claim

will only be able to have his claim heard in a federal

forum if he foregoes raising it in his state court criminal

trial; thereby increasing the likelihood of his conviction.

Few defendants will be willing to risk a criminal convic-

tion on the premise that they may obtain damages in a

subsequent federal action.This is especially true since, to

succeed in a state court suppression hearing, the defen-

dant need merely prove that he has standing and that

the search was unconstitutional. While in section 1983

actions, the plaintiff must not only demonstrate that he

has standing and that the search was unconstitutional,

he must additionally overcome the good faith-reasonable

belief defense available to police officers in section 1983

actions. See, e.g., Pierson v. Ray, 386 U.S. 547 (1967).

Given the infrequency with which individuals would

bring section 1983 actions under these circumstances,

and the unavailability of habeas proceedings under

Stone, the exclusionary rule would become the sole

means available to most state criminal defendants for

protecting fourth amendment rights. Yet, it is clear that

the exclusionary rule was never meant to supplant

damage actions as a remedy for violations of fourth

amendment rights. In Ney v. California, 439 F.2d 1285

(9th Cir. 1971), the Ninth Circuit directly addressed the

relationship between the exclusionary rule and section

1983, stating:

‘‘The. Civil Rights Act long antedates the exclu-

sionary rule; the creation of that rule by the

Supreme Court, first for the federal courts and later

for the state courts, was not designed to, and did

not, limit the remedies created by the Congress

when it enacted the Civil Rights Act.’’

Id. at 1288. The Court further noted that if a successful

state prosecution, based upon the use of information

obtained in violation of defendant’s constitutional

rights, could bar a civil rights action against the offen-

ding officers, ‘‘the Civil Rights Act would, in many

cases, be a dead letter.’’ /d. It held that plaintiff’s sec-

tion 1983 action for denial of counsel during interroga-

tion was not barred by his prior state court conviction.

Id.

Although this Court has indicated an unwillingness

to ‘‘assume that there now exists a general lack of ap-

propriate sensitivity to constitutional rights’’ in the state

courts (Stone v. Powell, supra, 428 U.S. at 493-4 n.35),

it is still pertinent to note that lacking habeas corpus

review the application of the exclusionary rule is left to

state judges, insulated from federal courts by the

remoteness and improbability of Supreme Court review.

This Court has recognized the insufficiency of such

review for protecting constitutional rights. See, England

v. Louisiana State Bd. of Med. Examiners, 375 U.S.

411, 416 (1964). See also, Stone v. Powell, supra, 428

U.S. at 526 (Brennen, J., dissenting); McCormack,

Federalism and Section 1983: Limitations on Judicial

Enforcement of Constitutional Claims, Part II, 60 Va.

L. Rev. 250, 264 (1974).

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

Brennan, joined by Justice Marshall, specifically noted

state court disinclination to follow ‘‘federal constitu-

tional pronouncements’? on fourth amendment issues

after Stone eliminated federal habeas corpus review. 437

U.S. at 404. It was because of problems such as Justice

Brennan noted in Mincey that Congress enacted section

1983 and placed guardianship of federal constitutional

rights in the federal courts. To deny litigants in respon-

dent’s position the right to utilize the federal courts to

protect his fourth amendment rights would clearly

violate the very purpose behind section 1983’s enact-

ment.

D. General principles of tort law are not

determinative of the issues in this case

It is of no avail to petitioners that section 1983 ‘‘is

to be read in harmony with general principles of tort im-

munities and defenses rather than in derogation of

them.’’ Jmbler v. Pachtman, 424 U.S. 409, 418 (1976)

(Pet. Br., p.15-16). Section 1983 is not a ‘‘font of tort

law’’ nor does it create ‘‘ a body of general federal tort

law. .’’ Paul v. Davis, 424 U.S. 693, 701 (1976).

Whether any given immunity or defense applies in an

action under section 1983 is essentially a question of

statutory construction. Owen v. Independence, supra,

U.S. at , 100 S.Ct. at 1407. As stated

above, section 1983’s statutory language admits of no

defenses and its legislative history clearly discloses con-

gressional intent to provide complainants a_ federal

forum for the vindication of their constitutional rights,

‘*State authorization in the premises to the contrary not-

withstanding.’’ Cong. Globe at 416 (Representative

Biggs).

Clearly, Congress intended that federal court

jurisdiction under section 1983 would extend ‘‘to the ac-

tions of state courts ...’’ Mitchum v. Foster, supra,

407 U.S. at 241-2 (footnote omitted). It seems quite ob-

vious under these circumstances that the actions of state

courts, i.e., their judgments and rulings, do not have

traditional tort law collateral estoppel effect. In short,

specific congressional intent with respect to section 1983

overrides general principles of tort law. Even the prin-

cipal case cited by petitioners on this point, Montana v.

United States, 440 U.S. 147 (1979), notes that in apply-

ing collateral estoppel courts must first determine

whether any ‘‘special circumstances warrant an excep-

tion to the normal rules of preclusion.’’ 440 U.S. at 155.

The instant case simply presents special circmstances

arising from the nature of section 1983 and requiring an

exception to general rules of preciusion.

E. The decision below gives appropriate con-

sideration to federal-state comity.

Petitioners contend that the Court of Appeals’

reliance on ‘‘the special role of the federal courts in pro-

tecting civil rights’’ (606 F.2d 799 (Pet. Cert., A-10)), is

‘‘patently erroneous’’ given section 1983’s legislative

history and concurrent state court jurisdiction under the

statute. (Pet. Cert., p.19). This Court was obviously

aware of section 1983’s concurrent jurisdictional provi-

sion when it recognized congressional intent under sec-

tion 1983 to establish ‘‘the role of the Federal Govern-

ment as a guarantor of basic federal rights against state

power ...’’ Mitchum v. Foster, supra, 407 U.S. at 239.

Thus, the Court of Appeals’ recognition of this special

role can hardly be considered patently erroneous. As

demonstrated above, section 1983 clearly contemplates a

special role for the federal courts in protecting in-

dividual rights.

Petitioners seem to feel that it somehow helps their

position to demonstrate that section 1983 provides for

concurrent federal-state court jurisdiction. (Pet. Br.

p.19-24). It has never been respondent’s position that

section 1983 deprived the state courts of jurisdiction

over constitutional issues. Surely if a plaintiff chooses to

bring his section 1983 action in state court, nothing in

section 1983 or its legislative history would prevent him.

Respondent’s contention- is that Congress intended,

through section 1983, to provide individuals in respon-

dent’s position with the opportunity to utilize a federal

forum for the protection of their federally protected

constitutional rights. This certainly does not mean that

if such individuals feel their rights can be better pro-

tected in state courts they should be forced into federal

courts. The choice is the complainant’s under section

1983, however, not the state’s.

In the instant case, respondent was compelled into

the state court system. As noted above, if collateral

estoppel is held to apply, individuals so compelled will

be forced to choose between litigating their fourth

amendment claims in state court or incréasing the

possibitlity of conviction by holding such claims back

for litigation in a subsequent section 1983 federal action.

The choice Congress intended to grant plaintiffs in sec-

tion 1983 actions was between state and federal court,

not a Hobson’s choice between federal court and a state

conviction.

Moreover, a federal court ruling on a search and

seizure claim would not vitiate a state court ruling as to

’ the applicability of the exclusionary rule. A section 1983

action does not free the convicted state court defendant,

nor does it require a new trial, it merely provides a

damages remedy. The exclusionary ‘‘rule is not a per-

sonal constitutional right’’, nor is it ‘‘calculated to

redress the injury to the privacy of the victim of the

search and seizure ...’’ Stone v. Powell, supra, 428

U.S. at 486. It is simply ‘‘a judicially created means of

effectuating the rights secured by the Fourth Amend-

ment.’’ Jd. at 482. Thus, holding collateral estoppel! in-

applicable in actions involving fourth amendment rights

would in no way ‘‘disturb the jurisdiction of state

courts’’ in applying the exclusionary rule, as petitioners

apparently fear. (Pet. Br. P.20).

Lastly, respondent notes that, in deference to the

Missouri state courts, the Court below held that the

district court should abstain from hearing respondent’s

section 1983 claim ‘‘until the Missouri courts have had

the opportunity to directly review [respondent’s] convic-

tion and the underlying search of his home.’’ 606 F.2d

at 799 (Pet. Cert., A-1!). However, the Court below

further noted that in ‘‘refusing [respondent] immediate

relief’’, it was committing him to ‘‘perhaps several years

of litigating his § 1983 claim,’’ which appeared to the

Court to be ‘‘serious and substantial.’’ 606 F.2d at 799

(Pet. Cert., A-11).

Respondent agrees that it is regretable that he will

be denied immediate relief, but submits that federal-

state comity and the orderly administration of justice

justify the decision of the Court below.

F. The federal res judicata act, 28 U.S.C. §

1738 is inapplicable under the facts of this

case.

Petitioners further offer 28 U.S.C. § 1738 as ‘‘ad-

ducing an additional reason for applying a federal rule

of colateral estoppel to this case,’’ although they do not

rely on § 1728 as an ‘‘independent basis for reversing

the Court of Appeals’’. (Pet. Br. p.25 n.5). Clearly,

petitioners have good reason not to rely on section 1738

as an independent basis for reversing the court below.

Even the cases which have applied section 1738 often

recognize that ‘‘implementation of federal statutes

representing countervailing and compelling federal

policies justifies departures from a strict application of

“section 1738. Red Fox v. Red Fox, 564 F.2d 361, 365

n.3 (9th Cir. 1977). See, e.g., American Mannex Corp.

v. Rozands, 462 F.2d 688, 690 (Sth Cir.), cert. denied,

409 U.S. 1040 (1972); Lyons v. Westinghouse Elec.

Corp., 222 F.2d 184, 188-90 (2d Cir.), cert. denied, 350

U.S. 825 (1955).

As one commentator has stated:

{I]f a federal purpose or interest will be undermined

by allowing collateral estoppel effect, as might oc-

cur when a determination of law would be given

this effect or when the availability of federal pro-

cedure is a prerequisite to carrying Out the intent of

Congress implicit in its definition of the substantive

federal claim, a valid reason may exist for denying

collateral estoppel effect. In any event, the federal

purpose and interest which might be undermined by

applying collateral estoppel must be _ balanced

against the policy reasons which support this res

judicata doctrine.

Note, Res Judicata: Exclusive Federal Jurisdiction and

the Effect of Prior State-Court Determinations, 53 Va.

L. Rev. 1360, 1384 (1967).

As respondent has submitted throughout this brief,

section 1983 is clearly a federal statute representing com-

pelling federal policies and justifying a departure from

general rules of collateral estoppel, such as section 1738.

This Honorable Court was faced with an analogous

issue in Mitchum v. Foster, supra, 407 U.S. 225,

wherein it held that 28 U.S.C. § 2283, which is an ab-

solute bar against injunction of state court proceedings

in most cases, is inapplicable in cases under 42 U.S.C.

§ 1983 seeking to enjoin a state proceeding. Similarly, in

the instant case, it seems unfathomable given section

1983’s legislative history and congressional intent, that

collateral estoppel could serve to deny respondent a

federal forum for consideration of his search and seizure

claim, when section 1983 clearly extends to ‘‘the actions

of state courts .. .’’ Mitchum v. Foster, supra, 407 U.S.

at 241-2.

II. Respondent’s Claim Is Serious And Substantial

And Evinces State Court Unwillingness To Ad-

vance To Federal Court Holdings On Fourth

Amendment Issues.

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

Marshall and Brennan noted a disinclination on the part

of the state court to follow ‘‘federal constitutional pro-

unoucements’’ on fourth amendment issues following

Stone v. Powell, supra. Id. at 404. The instant case is

notable for as similar disinclination on the part of the

Missouri courts.

In Mincey, a group of police officers went to the

petitioner’s home to purchase heroin. A shoot-out oc-

cured in which one police officer was killed and other

individuals injured. The uninjured officers took control

and guarded the suspects and premises. Within ten

minutes, homicide detectives arrived and proceeded to

gather evidence. Their search was extensive and lasted

four days. The evidence seized was subsequently used to

convict the petitioner. The Arizona Supreme Court sus-

tained the conviction based on a murder scene exception

to the fourth amendment’s warrant requirement.

This Court reversed petitioner’s conviction holding

that the Arizona murder scene exception was inconsis-

tent with the fourth and fourteenth amendments and

that the warrantless search ‘‘was not constitutionally

permissible simply because a homicide had recently oc-

curred there.’’ 437 U.S. at 395.

In the instant case, a group of police officers went

to respondent’s home to purchase heroin. A shoot-out

occured in which two police oficers were injured. Addi-

tional officers arrived until there were about thirty-five

officers on the scene. After all the officers had arrived,

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

police, let us in,’’ and ‘‘Come out of the house, no ac-

tion will be taken.’’ Appellant and his father than came

out of the house. The officers, suspecting that there

were additional persons within, rushed into the house to

check. Some 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

respondent contends is unconstitutional. 606 F.2d at 796

(Pet. Cert., A-5). Officer Brand did not believe that

there were other occupants present in respondent’s

residence. 587 S.W.2d at 340 (Pet. Cert., A-16).

The Missouri Court of Appeals upheld the constitu-

tionality of Officer Brand’s search notwithstanding that:

(1) Officer Brand entered respondent’s residence after it

had been rushed to check for other residents and after

respondent had been arrested (606 F.2d at 796 (Pet.

Cert., A-5)); (2) Officer Brand entered to search for

evidence, not for other occupants, and was designated

the ‘‘seizing officer’’ or “‘seizure officer’? (606 F.2d at

796 (Pet. Cert., A-5); 587 S.W.2d at 339 (Pet. Cert.,

A-14); (3) Officer Brand did not even believe that there

were other occupants in the house (587 S.W.2d at 340

(Pet. Cert., A-16); and, (4) there were approximately

thirty-five officers at the scene to guard the house and

prevent evidence being lost, destroyed, or removed had

the police decided to obtain a warrant (606 F.2d at 796

(Pet. Cert., A-5)).

The Missouri Court’s justification for upholding

this search was that Officer Brand entered pursuant to

an emergency situation and the evidence admitted at

trial was in plain view. 587 S.W.2d at 340-41 (Pet.

Cert., A-16 - A-18). In so holding, the Missouri court

ignored many of the very factors this Court considered

relevant in Mincey. In actuality, about the only relevant

factual distinction between the instant case and Mincey

is that the search in Mincey lasted four days while the

search of respondent’s home may have been for a

shorter time: respondent is unsure. Nonetheless, the

temporal length of the search was not the determining

fact in Mincey. Moreover, the search in the instant case

was, as in Mincey, far reaching, including a search of

dresser drawers and old tires.

Even apart from Mincey, the Missouri Court ig-

nored the federal constitutional pronouncements of the

Eighth Circuit. In United States v. Young, 553 F.2d

1132 (8th Cir.), cert. denied, 431 U.S. 959 (1977),

evidence technicians conducted a warrantless search of

the appellant’s home after a shootout and a subsequent

warrantless entry by police to search for occupants. The

trial court admitted the evidence so seized. Although

recognizing that the police officers were lawfully in ap-

pellant’s home and that they could lawfully seize

evidence in plain view, the Court of Appeals further

stated that:

The seizure of money taken from the bedroom wall

by the evidence technicians, however, does not fall

within the exigent circumstance exception to the

search warrant requirement, and should have been

excluded. The technicians were looking for

evidence, not robbers, at a time when the house had

already been secured and after appellant had been

arrested. A search warrant should have been obtain-

ed before proceeding further. See Chimel v.

California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d

685 (1969); United States v. Carter, 173 U.S. App.

D.C. 54, 522 F.2d 666 (1965); United States v.

Gamble, 473 F.2d 1274 (7th Cir. 1973).

553 F.2d at 1132. (Even though the Court of Appeals

clearly held this search unconstitutional, appellant’s con-

viction was affirmed because the Court determined that

the admission of this evidence was harmless error).

Respondent submits that under the plain facts of

this case and the federal constitutional pronouncements

in Mincey v. Arizona, supra, and United States v.

Young, supra, the search conducted by Officer Brand

was prima facia unconstitutional. Of course, this is not

the form within which to fully explicate the merits of

respondent’s ‘‘serious and substantial’’ claim. 606 F.2d

at 799 (Pet. Cert., A-11). Respondent offers the forego-

ing synopsis merely to demonstrate the need for a

federal forum to protect fourth amendment rights and,

more particularly, to protect respondent’s rights in the

instant case.

lil. Notwithstanding The Unavailability Of Federal

Habeas Corpus, Collateral Estoppel Is Inap-

plicable In The Instant Case As Concerns The

Basic Allegations In Respondent’s Complaint

Because (1) The State Court Held That

Respondent’s Fourth Amendment Rights Were

Violated: And, (2) No Court Has Considered

Plaintiff’s Assault Claim.

As noted in respondent’s Statement of the Case,

supra, and as specifically held by the Court below (606

F.2d at 797 (Pet. Cert., A-5S)), respondent’s complaint

alleges three constitutional violations: (1) a conspiracy to

conduct an illegal search of his home; (2) an illegal

search of his home; and (3) an assault. (Pet. Cert.,

A-21-A-24). As concerns respondent’s assault sclaim,

petitioners have properly declined to challenge a reversal

of the district court’s order. (Pet. Br., p.6 n.2). The ap-

pellate court’s reversal of the district court’s dismissal of

respondent’s fourth amendment claim is likewise proper-

ly unchallengeable. Even if collateral estoppel was an

appropriate docrine in section 1983 cases alleging the

violation of fourth amendment rights (which it is not),

the state court clearly held that respondent’s fourth

amendment rights were violated. The state court, in

fact, suppressed certain evidence. (Pet. Cert., A-27).

The Missouri Court of Appeals, in considering

respondent’s appeal from his state court criminal convic-

tion, recognized that the police officer conducting the

search of plaintiff’s home,

found additional contraband in dresser drawers and

hidden in some tires on a porch. Those items were

not in plain view. After hearing on defendant’s mo-

tion to suppress, the trial court sustained the mo-

tion as to those items found in drawers and the tires

and denied the motion as to those items in plain

view.

State v. McCurry, 587 S.W.2d 337, 340 (Mo. App.

1979); (Pet. Cert., A-15)(emphasis supplied).

Beyond question, the state court held that a search

was conducted and evidence seized in violation of the

fourth amendment. Thus, respondent is entitled to raise

this violation of his constitutional rights, and a con-

spiracy to do so, in an action under section 1983 unen-

cumbered by the doctrine of collateral estoppel.

Petitioners plainly admit that if respondent’s com-

plaint is ‘‘read as alleging that the Petitioners conspired

to conduct, and did conduct, a search which was illegal

in scope, then perhaps Respondent is not estopped.”’

(Pet. Br. at p.36). Yet petitioner’s attempt to avoid the

plain impact of this statement by alleging that respon-

dent’s complaint seeks ‘‘redress solely for the alleged

warrantless intrusion into his house, pursuant to an

alleged conspiracy’’ as opposed to the search actually

conducted. (Pet. Br. pp.11, 37). A simple reading of

respondent’s complaint reveals the inanity of this argu-

ment. Respondent, proceeding pro se, clearly alleged

that petitioners ‘‘searched the house without obtaining a

warrant... .’’ (Pet. cert., p.A-2, 45). Respondent’s

complaint quite obviously contends that the illegal

search actually conducted as well as illegal entry of his

home and the conspircy to enter and search violated his

fourth amendment rights.

Nonetheless, even if it could be said that respon-

dent’s complaint was vague, pro se complaints by state

prisoners are held to ‘“‘less stringent standards than for-

mal pleadings drafted by lawyers....’’ Haines v.

Kerner, 404 U.S. 519, 520-1 (1972). See also Corby v.

Conboy, 457 F.2d 251, 253 (2d Cir. 1972). Such com-

plaints should only be dismissed when a court can ‘‘say

with assurance that under all the allegations ... it ap-

pears ‘beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him

to relief.’ ’’ Haines v. Kerner, 404 U.S. 519, 520-21

(1972). Given the state court’s order suppressing certain

illegally obtained evidence, it appears beyond doubt that

respondent can prove a set of facts in support of his il-

legal search and seizure claim entitling him to relief.

Petitioners further agree that respondent’s claim

cannot involve evidence suppressed by the state court

because respondent was ‘‘keenly aware’’ that this sup-

pressed evidence ‘‘would furnish no basis for liability in

damages... .’’ (Pet. Br. p.37). While it is certainly un-

clear just what a pro se complainant drafting a pleading

in the state penitentiary would be keenly aware of, it is

clear that petitioners have misstated the law. Respondent

undoubtedly has a cause of action against petitioners for

damages based on a search pursuant to which evidence

was seized and suppressed by the state court. The cases

petitioners cite lend no support to their assertion to the

contrary, and in actuality support respondent’s position.

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

1974), cert. denied, 420 U.S. 909 (1975) (Pet. Br. p.37),

a section 1983 complainant alleged that his constitu-

tional right to a fair trial was violated by the admission

into evidence at his state court criminal trial of a police

officer’s allegedly perjured testimony. The Court held

that since the nature of this testimony was an essential

element of complainant’s state court criminal trial, the

issue as to whether it was actually perjured was resolved

against the complainant in state court and collaterally

estopped his section 1983 action. (The Court also noted

the possibility that an exception to the applicability of

collateral estoppel in section 1983 actions might be ap-

propriate in a case where habeas corpus’ was

unavailable). (498 F.2d at 1260 n.2).

Alternatively the Court noted that, if it were to

assume the admission of the allegedly perjured

testimony was not essential to the complainant’s convic-

tion, he would lack a cause of action because he had

‘‘not suffered any damages as a result thereof.’’ 498

F.2d at 1261. That is, if the allegedly perjured testimony

did not affect complainant’s conviction, he received a

fair trial so as to comport with his right to a fair trial.

The right to a fair trial was the only right complainant

alleged had been violated. The issue was whether that

right had been violated so as to create section 1983

liability, not whether the complainant could prove actual

damages. In the instant case, respondent’s fourth

amendment rights were clearly violated apart from any

possible effect this violation might have had on his right

to a fair trial. As such, respondent has a cause of action

under section 1983 for the illegal search and seizure pur-

suant to which the state court suppressed evidence.

The second case cited by petitioners, Carey v.

Piphus, 435 U.S. 247 (1978) (Pet. Br. p.137), une-

quivocally supports respondent’s contention that he has

an action under section 1983 in connection with the

evidence suppressed by the state court. In Carey, this

Court held that section 1983 complainants who failed to

prove any actual damages in connection with a violation

of their constitutional right to procedural due process

were nonetheless entitled to maintain an action for

nominal damages. This court specifically noted that ‘‘[a]

number of lower federal courts have approved the

award of nominal damages under § 1983 where depriva-

tions of constitutional rights are not shown to have

caused actual injury.’’ 435 U.S. at 266-7 n.24. Such

cases include section 1983 actions involving violations of

fourth amendment rights. See, e.g., Sexton v. Gibbs,

327 F.Supp. 134, 142-3 (N.D. Tex. 1970), aff’d., 446

F.2d 904 (5th Cir. 1971), cert. denied, 404 U.S. 1062

(1972). See generally cases cited in Hostrop v. Board of

Junior College Dist. No. 515, 523 F.2d 569, 579 (7th

Cir. 1975), cert. denied, 425 U.S. 63 (1976) (cited in

Carey v. Piphus, supra, 435 U.S. at 264 n. 21.

The problem in Carey was that the complainants

had gone to trial and failed to prove any actual

damages. 435 U.S. at 251-52. This can hardly be utilized

to limit a damages recovery in the instant case since

respondent has yet to be granted the opportunity to pre-

sent evidence. Carey certainly cannot be utilized to

establish that respondent was ‘‘keenly aware’’ (Pet. Br.

p.37) that he would be unable to recover damages in

connection with the illegal search that resulted in the

state court’s order suppressing certain evidence. Carey

specifically holds to the contrary.

Petitioner’s argument that respondent is unable to

state a cause of action against petitioners in connection

with the unlawful search and seizure of the evidence

suppressed at his trial demonstrates the anomalous

nature of petitioner’s entire approach to interpreting sec-

tion 1983. If plaintiff is collaterally estopped from rais-

ing a search and seizure claim as to evidence admitted at

his criminal trial, as petitioners allege, and is further

precluded from raising such a claim as to items excluded

from his criminal trial, as petitioners allege, no state

court criminal defendant would ever have a cause of ac-

tion under section 1983 for a violation of his fourth

amendment rights. Under this approach, if the evidence

comes in, the defendant is estopped and if it’s excluded,

there is no damage and, therefore, no liability. Such a

circuitous approach to interpreting section 1983 is ob-

viously contrary to the Civil Rights Act’s legislative

history.

Although, as set forth above, respondent believes

petitioners are arguing that respondent cannot state a

cause of action against petitioners as to the illegal search

and seizure which resulted in a state court suppression

of evidence because he will be unable to prove damages,

it is also possible that petitioners are arguing that

respondent cannot state such a claim because petitioners

Allen and Jacobsmeyer were incapacitated at the time

the unlawful search occured and, therefore, cannot be

held liable. As noted in respondent’s Statement of the

Case, his cause of action is against named individual

police officers, unknown police officers, and the City of

St. Louis Police Department. Clearly respondent can

proceed against the City of St. Louis. See Owen v. In-

_ dependence, US... ws See ae SR

(1980); Monell v. New York City Dept. of Social Ser-

vices, 436 U.S. 658 (1978). Respondent can also proceed

under section 1983 against police officers Allen,

Jacobsmeyer and others who were involved in a con-

spiracy to deprive him of his constitutonal rights See

e.g. Phillips v. Trello, 502 F. 2d 1000, 1004 (3d Cir.

1974); Birnbaum v. Trussell, 371 F. 2d 672, 676, (2d

Cir. 1966); Hahn v. Sargent, 388 F. Supp. 445, 450 n. 5

(D. Mass.), aff’d, 523 F. 2d 461 (ist Cir. 1975), cert.

denied, 425 U.S. 904 (1976); Ames v. Vavreck, 356

F.Supp. 931, 940 (D.Minn. 1973). Respondent may pro-

ceed against the individual police officers who actually

conducted the illegal search and seizure (see, e.g.,

Monroe v. Pape, 365 U.S. 167, 171-2, 187 (1961)), and

the officers who assaulted him (see, e.g., Rosenberg v.

Martin, 478 F.2d 520, 526 (2d Cir.), cert. denied, 414

U.S. 872 (1973); Collum v. Butler, 421 F.2d 1257,

1259-60 (7th Cir.1970)

Although respondent was unaware of the identities

of the officers who actually conducted the illegal search

and seizure and assasulted him at the time he filed his

section 1983 complaint, he has subsequently learned

their identities.‘ The district court did not rely on the

fact that respondent’s action was, in part, against

unknown officers in dismissing his complaint per aps

because respondent, at the very least, stated a4 claim

against the City of St. Louis for violations of his con-

stitutional rights and against officers Allen and

Jacobsmeyer for conspiracy. Nonetheless, the Court of

Appeals noted that respondent ‘‘learned the name of the

police officer who allegedly assaulted him subsequent to

* Officer Brand conducted the illegal search. Officer Brand had

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

Hammer, as the ‘“‘seizure officer’’. 587 S.W.2d at 339 (Pet. Cert.,

A-14). Respondent’s complaint was dismissed with prejudice less

than three months after he filed suit. He has not, as yet, had an op-

portunity to amend.

the filing of the § 1983 action,’’ and held that respon-

dent ‘‘should be granted leave to amend his complaint

in this respect.’’ 606 F.2d at 797 n.1 (Pet. Cert., A-6

n.1).

Respondent submits that the Court of Appeals cor-

rectly provided respondent leave to amend his complaint

and that it would be unjust to preclude state prisoners

acting pro se from amending section 1983 complaints

that state actionable causes of action for constitutional

violations. It is hardly likely that an individual will be

able to elicit a police officer’s name while that officer is

beating him or searching his home long after he is

removed from the premises and incarcerated.

Respondent has clearly demonstrated the existence

of viable causes of action under section 1983 against the

named as well as the unknown defendants. Upon re-

mand to the district court, respondent is and has been

prepared to amend his complaint to add the individual

defendants involved in the deprivation of his constitu-

tional rights and not already named. Respondent sub-

mits that the absence of these additional names from his

complaint should not serve as a basis for dismissal.

Nonetheless, it is clear that respondent has stated a

claim against petitioners Allen and Jacobsmeyer for

their participation in a conspiracy to _ violate

respondent’s constitutinal rights and that the actual oc-

currence of an illegal search violating those rights is ap-

parent on this record. As such, respondent submits that

this Court should remand respondent’s cause to the

district court for further proceedings.

CONCLUSION

For the foregoing reasons, respondent submits that

the judgment of the Court of Appeals should be affirm-

ed and the case remanded to the District Court for fur-

ther proceedings consistent therewith.

Respectfully submitted,

JEFFREY J. SHANK

ANDREW F. PUZDER

408 Olive Street

Suite 802

St. Louis, Missouri 63102

(314) 241-6116

Attorneys for Respondent

QUESTION PRESENTED FOR REVIEW

Whether the Court of Appeals was correct in holding

collateral estoppel inapplicable in actions under 42 U.S.C.

§ 1983 alleging fourth amendment violations when to apply

collateral estoppel would violate section 1983’s legislative in-

tent to provide a viable federal forum in which respondent

can vindicate his fourth amendment rights.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.