Amicus Brief — Allen v. McCurry

Buprems Court, Us

| ‘EILWLED

JUL 2 1980

nL ns pe pe

HAEL ROUAK, JR., CLERR

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IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

No. 79-935

MARVIN ALLEN, STEViN JACOBSMEYER

and UNKNOw™ POLICE OFFICERS,

Petitioner,

vs.

WILLIE McCurry,,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals, Eighth Circuit

BRIEF OF THE AMERICAN CIVIL

LIBERTIES UNION/EASTERN MISSOURI,

AS AMICUS CURIAE IN SUPPORT

OF THE RESONDENT

DANIEL L. HUMAN

130 South Bemiston

Suite 405

Clayton, MO 63105

MICHAEL A. WOLFF

St. Louis Univ. Law School

3642 Lindell Blvd.

St. Louis, MO 63108

Attorneys for Amicus Curiae

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

TABLE OF CONTENTS

— PPPETTTETEREREEETTEET TCT ii

Premmemery Statement... ccc cect eee cc eeeen |

ns ok Ged sas ee eee ec eea ve sienadeate ]

Argument:

PORTER CTE 3

II. Recognition of a Clear Rule Permitting the

Maintenance of an Action for Damages Under 42

U.S.C. §1983 On the Basis of a Claim of Unlawful

Search and Seizure Which Had Previously Been

Raised in a Prior State Criminal Proceeding Is Sup-

ported By the Decision of this Court In Stone v.

Powell And Is Justified By the Special Role of

Constitutionally Guaranteed Rights In Our System

EE ERE RES aa ena Pe er ee 4

III. Recognition of Such A Rule is Necessary to

Provide An Adequate Mechanism For Federal

Regulation And Control of State Court Enforce-

ment of the Fourth Amendment Prohibition of

Unreasonable Searches And Seizures ............ 11

IV. Potential Increase in Litigation As A Result

of Establishment of a Rule Permitting the

Maintenance of an Action for Damages Under 42

U.S.C. §1983 On the Basis of a Claim of Unlawful

Search and Seizure Which Had Previously Been

Raised in a Prior State Criminal Proceeding is

Highly Speculative, Exaggerated And Of Minor

Significance to a Determination of the Substantive

Ee 13

ne ee hw we we'd eee eeku a 16

TABLE OF AUTHORITIES

Page

Cases:

Basista v. Weir, 225 F. Supp. 619 (W.D. Pa. 1964) rev’d

in part and aff’d in part, 340 F.2d 74 (3rd Cir.

ee Nr tr ee re aay Re ea 14

Bethea v. Reid, 445 F.2d 1163 (3rd Cir. 1971) ......... 14

Brubaker v. King, 505 F.2d 534 (7th Cir. 1974) ........ 14

Carlson v. Green, 100 S.Ct. 1468 (1980) .............. 9

Clark v. Illinois, 415 F.Supp. 149 (N.D.IIl. 1976) ...... 14

Clark v. Lutcher, 436 F.Supp. 1266 (M.D. Pa. 1977) ... 14

Clark v. Zimmerman, 394 F.Supp. 1166 (M. D. Pa.

| RN Serer ere ey eT eee ee 14

Covington v. Cole, 528 F.2d 1365 (Sth Cir. 1976) ...... 14

Davis v. Eide, 439 F.2d 1077 (9th Cir. 1971)........... 14

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

DE cu coset teen ae cae Ne cai 3

Fay v. Nota, 372 U.5. 301 (IGE) 6 oo ccc ce veces hoes 7

Kaufman v. United States, 394 U.S. 217 (1969) ........ 7

Mincey v. Arizona, 437 U.S. 385 (1977) .............. 11,12

Mitchum v. Foster, 407 U.S. 225 (1972) .............. 12

Moran v. Mitchell, 354 F.Supp. 86 (E.D. Va. 1973) .... 14

Owen v. City of Independence, 100 S.Ci. 1398 (1980)... 9

Perez v. Ledesma, 401 U.S. 82 (1971) ................ 3

iil

Preiser v. Rodriguez, 411 U.S. 475 (1973)............. 3,7

Simms v. Reiner, 419 F.Supp. 468 (N.D. Ill. 1976) ..... 14

Steffel v. Thompson, 415 U.S. 452 (1974) ............ 4

Stone v. Powell, 428 U.S. 465 (1976) .3,4,6,7,8,9,10,11,12,14,16

Tang v. Appellate Div. of New York Supreme Court,

487 F.2d 138 (2nd Cir. 1973), cert. denied, 416

i & | Rrra See eee 13

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

EN a aay ln hee aa ha aia ee Rk oh ee 13

Wilwording v. Swenson, 404 U.S. 249 (1971) (Burger,

EE ee ee ee eee eee eee 3

Secondary Authorities

Comment, ‘‘The Collateral Estoppel Effect of State

Criminal Convictions in Section 1983 Actions,’’

ge CIR". Se a er 7

Comment, ‘‘Collateral Estoppel in Section 1983 Actions

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

a re ree Gree 8

‘Developments in the Law — Section 1983 and

Federalism,’’ 90 Harv. L. Rev. 1133 (1977)....... 3

Project, ‘‘Suing the Police in Federa! Court,’’ 88 Yale

ie, kb ok be Nh cates cad pee e eke oe 8

‘Theis, “Res Judicata in Civil Rights Cases: An

Introduction to the Problem,’’ 70 Nw. U.L. Rev.

es uh one cd nes 5c bps ginko ee eel 6 8% 3

Torke, ‘‘Res Judicata in Federal Civil Rights Actions

Following State Litigation, ‘‘9 Ind. L. Rev. 543

I re Ch ers sa Wie ae scahe ee ke dele Was 3,7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 79-935

MARVIN ALLEN, STEVEN JACOBSMEYER

and UNKNOWN POLICE OFFICERS,

Petitioner,

VS.

WILLIE McCurry,,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals, Eighth Circuit

BRIEF OF THE AMERICAN CIVIL

LIBERTIES UNION/EASTERN MISSOURI,

AS AMICUS CURIAE IN SUPPORT

OF THE RESONDENT

PRELIMINARY STATEMENT

This brief is filed pursuant to Rule 42 of the Supreme Court

Rules. Consent to file this brief has been granted by counsel for

Petitioners and counsel for Respondent. Letters indicating the

consent of both parties are on file with the Clerk of this Court.

INTEREST OF AMICUS

The American Civil Liberties Union is a nationwide, nonpar-

tisan organization of over 250,000 members dedicated to defen-

ding the right of all persons to equal and fair treatment under

the law. The American Civil Liberties Union of Eastern

Missouri (ACLU/EM) is composed of two thousand members

and geographically covers three quarters of the State of

Missouri. As a member organization of the American Civil

Liberties Union, ACLU/EM is committed to resist any denigra-

tion of the civil rights guaranteed by the United States Constitu-

tion and to encourage the vigorous and sustained enforcement

and protection of those rights.

Amicus believes that this case, concerning the scope of relief

under the Civil Rights Act for an illegal search and seizure,

presents a significant issue relating to the protection of fun-

damental rights and societal values incorporated in the Fourth

Amendment to the United States Constitution.

The criminally accused are subjected to the scorn and abuse

of society. A heinous and brutal criminal act will activate an

almost instinctive desire to retaliate with brute force and

violence against the perpetrator. While such action by a police

office may be rationally explained as the result of such irrational

behavior, such behavior is unlawful and only enhances the

brutalization of the law enforcement system. Effective deter-

rence of this behavior should be fostered. This case presents this

Court with the opportunity to place its imprimatur upon a form

of relief which would supply a needed degree of such deterrence.

— pe

ARGUMENT

1. Introduction

The instant proceedings present this Court with the oppor-

tunity to answer the following question: whether society’s in-

terest in protecting those rights guaranteed by the Fourth

Amendment outweigh the policies of collateral estoppel,

primarily finality and judicial economy, in the narrow context

of a proceeding commenced by a state prisoner whose access to

a federal forum for habeas corpus relief has been terminated by

the decision in Stone v. Powell.' Hypothesizing that a state

prisoner’s constitutional rights are violated in a search and

seizure, and further that evidence thus unlawfully obtained is er-

roneously introduced at his trial and that federal habeas corpus

relief is not available, this Court must determine whether Sec-

tion 1983 of the Civil Rights Act remains an unimpeded avenue

of civil relief.?

Amicus strongly urges this Court to approve the remedy

sought by Respondent herein. The protection of federal civil

rights presents demands so special as to overshadow the policies

enforced by res judicata principles at least in the narrow context

of the question presented here.’ Strict application of the rules of

'428 U.S. 465 (1976). The precise issue has not been previously ruled

or addressed outside of dicta by this Court. Inconclusive references to

the issue have appeared in Ellis v. Dyson, 421 U.S. 426, 437 (1975)

(Powell , J., dissenting); Preiser v. Rodriguez, 411 U.S. 475, 509N. 14

(1973) (Brennan, J., dissenting); Wilwording v. Swenson, 404 U.S.

249, 252 (1971) (Burger, C.J., dissenting); Perez v. Ledesma, 401 U.S.

82, 125 (1971) (Brennan, J., dissenting).

7428 U.S. at 494; it is noteworthy that even in Stone v. Powell it was

recognized that federal habeas corpus relief would remain available to

litigate the Fourth Amendment claim under certain circumstances, /d.

at 482.

Torke, ‘‘Res Judicata in Federal Civil Rights Actions Following

State Litigation,’ 9 Ind. L. Rev. 543, 543 (1976); see also generally

‘“‘Developments in the Law—Section 1983 and Federalism, ’’ 90 Harv.

L. Rev. 1133 (1977); Theis, ‘‘Res Judicata in Civil Rights Cases: An

Introduction to the Problem,’’ 70 Nw. U. L. Rev. 859 (1976).

Pris es

collateral estoppel would preclude effective enforcement of

these rights which are so fragile and so vital to our shared vision

of society. The federal courts should and must remain the

primary guardians of constitutional rights upon whom primary

and powerful reliance for vindicating these rights has been

imposed.‘

Recognition of a Clear Rule Permitting the Maintenance of

an Action for Damages Under 42 U.S.C. §1983 On the Basis of

a Claim of Unlawful Search and Seizure Which Had Previously

Been Raised in a Prior State Criminal Proceeding Is Supported

By the Decision of This Court in Stone v. Powell And Is

Justified By the Special Role of Constitutionally Guaranteed

Rights In Our System of Government.

in Stone v. Powell this Court held that in the context of

federal habeas corpus relief the contribution of the exclusionary

rule, if any, to the effectuation of the Fourth Amendment is

minimal, and the substantial societal costs of application of the

rule persist with special force.’ For these reasons it was ruled

that such relief might not be granted on the ground that

evidence obtained in an unconstitutional search or seizure was

introduced at a state prisoner’s trial.

‘Steffel v. Thompson, 415 U.S. 452, 463-465, 472-73 (1974).

*428 U.S. at 494-95,

—

In prior discussion of the basis for these conclusions the

Court noted that the principal rationale for the exclusionary

rule is the deterrence of future unlawful police conduct.* The

Court also declared that application of that rule deflects the

truthfinding process and often frees the guilty.’ The core of the

analysis supporting the holding was stated as follows:

But the additional contribution, if any, of the considera-

tion of search-and-seizure claims of state prisoners on col-

lateral review is small in relation to the costs. To be sure,

each case in which such claim is considered may add

marginally to an awareness of the values protected by the

Fourth Amendment. There is no reason to believe,

however, that the overall educative effect of the exclu-

sionary rule would be appreciably diminished if search-

and-seizure claims could not be raised in federai habeas

corpus review of state convictions. Nor is there reason to

assume that any specific disincentive already created by the

risk of exclusion of evidence at trial or the reversal of con-

victions on direct review would be enhanced if there were

the further risk that a conviction obtained in state court

and affirmed on direct review might be overturned in col-

lateral proceedings often occurring years after the in-

carceration of the defendant. The view that the deterrence

of Fourth Amendment violations would be furthered rests

on the dubious assumption that law enforcement

authorities would fear that federal habeas review might

reveal flaws in a search or seizure that went undetected at

trial and on appeal.** Even if one rationally could assume

that some additional incremental deterrent effect would be

‘Id. at 484.

"Id. at 490.

—

presented in isolated cases, the resulting advance of the

legitimate goal of furthering Fourth Amendment rights

would be outweighed by the acknowledged costs to other

values vital to a rational system of criminal justice.*®

As the discussion above suggests, Stone v. Powell was not a

decision premised on rules of res judicata. The focus of Stone v.

Powell was primarily on the harmful impact of the exclusionary

rule on certain aspects of the criminal justice system. Central to

its analysis was the conclusion that the costs of the exclusionary

rule to the truth-seeking process of the criminal trial outweighed

the benefits of deterrence of unlawful police behavior. Con-

cluding that federal habeas corpus relief bore but a tenuous link

to the subsequent behavior of law enforcement personnel, the

Court ruled that the costs to society of release of the Defendant,

convicted in an otherwise valid state proceeding were too great,

despite the damage to constitutional values. Fourth Amend-

ment search and seizure claims were distinguished from other

claims of violation of constitutional rights on the basis that the

fruits of such claimed violations were often persuasive and

tangible evidence, not inherently suspect.

Extrapolating on these principles, amicus believes that per-

mitting Section 1983 relief in the context of similar claims

following a state proceeding is logical, proper and necessary.

Though Stone v. Powell was decided against the background

of a prior and final state judgment, res judicata values played

but a secondary and tangential role in the analysis. Indeed, it

seems clear that federal review of the state court ruling would

have been upheld had the Court concluded that the social costs

in terms of the deflection of the truth-finding processes and the

resulting release of at least some state prisoners guilty of

criminal offenses were outweighed by the deterrent effects of

"Id. at 493-94.

~~

enforcement of the exclusionary rule. Absent this conclusion

habeas corpus relief would have been found warranted as it was

earlier found to be in Kaufman v. United States.’ In reversing

the Kaufman decision in Stone v. Powell, the Court did not in-

dicate that the basic premises underpinning federal habeas cor-

pus review of state proceedings were invalid. As this Court

earlier stated:

‘*Plainly the interest in finality is the same with regard to

both federal and state prisoners. With regard to both,

Congress has determined that the full protection of their

constitutional rights requires the availability of a

mechanism for collateral attack.’’'°

It is logical and proper to grant Section 1983 relief in this pre-

sent context because the deterrent effect of such relief would be

significant, while the detriment to the truth-finding process

would be non-existent. The results of the state proceeding

would be unaffected by a judgment in a Section 1983 action that

the Plaintiff’s constitutional rights had been violated in the

°394 U.S. 217 (1969).

‘ld. at 228; the Court has been in full agreement on the proposition

the ‘‘principles of res judicata are, of course, not wholly applicable to

habeas corpus proceedings.’’ Preiser v. Rodriguez, 411 U.S. 475, 497

(1973); see also Fay v. Noia, 372 U.S. 391, 423 (1963). Res judicata

operates in a severely diluted fashion in habeas corpus. Torke, supra

note 3, at 567. The author there suggests that the state criminal defen-

dant is in a singularly sympathetic position and, that a ‘‘special res

judicata’’ should be applied in Section 1983 actions which he files. /d.

at 569. Cf. Comment, ‘‘The Collateral Estoppel Effect of State

Criminal Convictions in Section 1983 Actions,’’ 1975 U. Jil. Law

Forum 95, 106. It is thus clear that the full faith and credit statute, 28

U.S.C. §1738, has but attenuated applicability in this field.

seizure of evidence which was admitted at the state trial. Thus

the truth-finding processes of the criminal trial would go

untainted.

Meanwhile, the deterrent effect of such relief would be

substantial. The relief would be aimed directly at the persons or

entities responsible for the unlawful conduct. The onus of any

relief would not be diffused generally throughout society, but

would be focused and specific.''

Applying the reasoning of Stone v. Powell to the present

question facing the Court, one commentor has declared:

**Section 1983 actions fare better under this balancing

test. The social costs of section 1983 actions are not as high

because they do not culminate in the release of guilty per-

sons from custody. In addition, the benefits may be more

significant. The deterrence of police misconduct that

would result from allowing section 1983 actions for

damages against policemen and municipalities might be far

greater than that achieved by applying the exclusionary

rule upon collateral review. The threat of monetary liabili-

ty is likely to have a greater impact than the prospect of

losing a conviction. Moreover, in cases like McCurry it is a

mistake to assess the benefits of collateral review solely in

terms of deterrence. Section 1983 also serves as a vehicle

for victim compensation.’’'?

'' Additional actions may also be necessary to bolster the deterrent

effect of Section 1983 judgments, see generally Project, ‘‘Suing the

Police in Federal Court,’’ 88 Yale L. J. 781 (1979). Need for such sup-

plementary deterrence merely indicates that permitting Section 1983

relief alone would not provide the full effect required, not that it is un-

necessary or ineffectual.

'*Comment, ‘‘Collateral Estoppel in Section 1983 Actions After

Stone v. Powell: McCurry v. Allen,’’ 64 Minn. L. Rev. 1060 (1980).

pa OE as

A civil remedy recoverable against individuals is logically a

more effective deterrent than a remedy imposing a penalty on

society as a whole in the form of exclusion of unconstitutionally

obtained evidence. ‘‘It is almost axiomatic that the threat of

damages has a deterrent effect. . ., surely particularly so when

the individual official faces personal financial liability.’’'’

The same reasoning was drawn upon in the recent decision of

Owen v. City of Independence in which the majority com-

mented that, ‘‘A damages remedy against the offending party is

a vital component of any scheme for vindicating cherished con-

stitutional guarantees. . .”’'* A decision favorable to Respon-

dent might do much to enhance the deterrent effect of Section

1983 relief by drawing the municipal employer into the relief

granted.

This Court in deciding Stone v. Powell commenced from the

proposition that federal court review of state court judgments

involving the federal constitutional rights of criminal defen-

dants is warranted and mandated by Congress and the Constitu-

tion. An underlying premise of Stone v. Powell is that protec-

tion of the federal constitutional rights of criminal defendants is

a special domain of the federal courts. The federal hand should

be stayed only where to do otherwise would produce minor

benefit at great cost to society.

The decision of the U.S. Court of Appeals for the Eighth Cir-

cuit meshes extremely well with these principles.

That decision provides a federal right of action to review a

state court judgment denying a criminal defendant relief on his

claim of violation of his constitutional rights while in no way in-

'’Carlson v. Green. 100 S.Ct. 1468, 1473 (1980).

'*100 S.Ct 1398, 1415 (1980).

terfering with the truth-seeking processes of the criminal pro-

ceeding or otherwise subjecting society to the costs found unac-

ceptable in Stone v. Powell. While res judicata principles may

be offended by this result, the Court has recognized by the very

rationale of the Stone decision that those principles have a more

limited range of viability in the context of federal constitutional

decision-making in criminal proceedings.

Thus the decision of the Court of Appeals stakes out a well-

placed meeting ground between the policies calling for special

protection of federal constitutional rights and the interests of

society demanding that the guilty not go free because the con-

stable blundered.

Stone v. Powell, contrary to the analysis of Amici in Support

of Petitioners, did not place significant emphasis on judicial

economy as a rationale for its decision. While mentioned as one

aspect of the background of the decision, amicus believes that

that policy plus the related benefits of finality of decision would

not have been enough to lead this Court to the result of that

case.

The potential deterrent effect of Section 1983 relief in this set-

ting is substantial. Its costs to society in terms of deflection 0.

the truth-seeking processes are non-existent. In the context of

federal constitutional rights the normal rules of finality have but

a limited role. Permitting this form of relief would thus poten-

tially provide a substantial benefit to society in enforcement of

constitutional rights with necessary and acceptable costs to

society through relitigation of certain constitutional claims.

= as

Recognition of Such A Rule is Necessary to Provide An Ade-

quate Mechanism for Federal Regulation and Control of State

Court Enforcement of the Fourth Amendment Prohibition of

Unreasonable Searches And Seizures.

Another and independent reason why Section 1983 relief in

this setting is necessary in the aftermath of Stone v. Poweil is

that state courts have been left relatively unchecked in their in-

terpretation and application of the Fourth Amendment since

that decision. Review by the United States Supreme Court pro-

vides an ultimate, but limited, mechanism for assuring com-

pliance by state courts with the dictates of that Amendment. As

pointed out by Justice Marshall in his concurrence in Mincey v.

Arizona:'*

‘*Prior to Stone v. Powell, there would have been no need

to grant certiorari in a case such as this, since the federal

habeas remedy would have been available to the defen-

dant. Indeed, prior to Stone petitioner here probably

would not even have had to utilize federal habeas, since the

Arizona Courts were at that earlier time more inclined to

follow the federal constitutional pronouncements of the

Ninth Circuit, as discussed above. But Stone eliminated

the habeas remedy with regard to Fourth Amendment

violations, thus allowing state court rulings to diverge from

lower federal court rulings on these issues and placing a

correspondingly greater burden on this Court to ensure

uniform federal law in the Fourth Amendment area.”’

Thus Stone v. Powell has weakened the constraints which

bound the state courts to respect their obligation to enforce the

rights guaranteed by the United States Constitution, while at the

'$437 U.S. 385, 402 (1977).

=.

same time increasing the burden on this Court by necessitating

increased grant of direct review of cases raising Fourth Amend-

ment issues.

State court reluctance to apply the exclusionary rule in a

vigorous and steadfast manner would naturally be supported by

the decision in Stone v. Powell.'* The same factors which drove

this Court to eliminate federal habeas corpus review with

respect to claims that unconstitutionally seized evidence was in-

troduced at a state prisoner’s trial motivate state court judges to

loosen the strictures of the exclusionary rule.

While it is impossible to verify that state court judges in-

troduce a balancing process into their application of the exclu-

sionary rule, cases such as Mincey v. Arizona suggest such is in

fact their practice. A state tribunal is naturally reluctant to ex-

clude evidence which as stated in Stone v. Powell, is ‘‘typically

reliable and often the most probative information bearing on

the guilt or innocence of the Defendant. The state tribunal may

thus effectively decide a question different from that presented

to the federal court in a complaint based on Section 1983.

Furthermore, since the federal plaintiff is forced to raise his

federal claim in the criminal trial as a defendant, he had no

choice but to submit these constitutional issues to the state

tribunal. The state forum will thus be frequently confronted

with important and substantial federal constitutional claims

which the criminal defendant is unwillingly compelled to

litigate. The criminal defendant should not be penalized by his

'SCf. Mitchum . Foster, 407 U.S. 225, 242 (1972) (antipathy of

state officers, including state judicial officers, could only be avoided

by access to a fecleral forum).

''437 U.S. at 404.

'*428 U.S. at 490.

a fio

inability to select the forum for presentation of these claims.

This circumstance largely distinguishes this case from all those

civil cases in which a party has the opportunity to choose the

forum in which to litigate his claims.'’

The remedy sought by Respondent is thus necessary to the

federal function of assuring state compliance with federal con-

stitutional guarantees, a function this Court cannot alone per-

form. It is desirable and necessary to provide a federal forum

free from the distortive pressures under which a state tribunal

must rule on the Fourth Amendment issues presented before it

in a typical suppression hearing.

IV

Potential Increase in Litigation As A Result of Establishment

of a Rule Permitting the Maintenance of an Action for Damages

Under 42 U.S.C. §1983 On the Basis of a Claim of Unlawful

Search and Seizure Which Had Previously Been Raised in a

Prior State Criminal Proceeding is Highly Speculative, Exag-

gerated And Of Minor Significance to a Determination of the

Substantive Questions Presented.

Careful husbandry of judicial resources is a valuable goal.

However, for the following reasons, Petitioners and Amici in

support of Petitioners place too much emphasis on this policy

goal in their application of collateral estoppel principles to

claims based upon alleged unlawful search and seizure which

have been previously raised in a prior state criminal proceeding.

It is inherently impossible to predict how many cases may be

brought in the future seeking damages for the violation of a

state prisoner’s Fourth Amendment rights in the seizure of

evidence which has been subsequently admitted as evidence at

'*See, e.g., Thistlethwaite v. City of New York, 497 F.2d 339, 345

(2nd Cir. 1974); Tang v. Appellate Div. of New York Supreme Court,

487 F.2d 138, 143 (2nd Cir. 1973), cert denied, 416 U.S. 906, (1974).

a

his trial. It is correct that the total number of civil rights actions

have increased in recent years, as pointed out by Petitioners and

amici in support of Petitioners. But this fact cannot be used as

the basis for any conclusion with respect to the future frequency

of the type of action filed by Willie McCurry. To do so entails

the grossest speculation.

The research of this amicus has revealed only five cases decid-

ed in the Federal Courts of Appeals for the period of January,

1945 to April, 1980 which involved the issue now before this

Court.”° Only six reported decisions of the Federal District

Courts have been found which treat this same question during the

period of January, 1960 to April, 1980.?' (The Office of the Ad-

ministrator of the Courts unfortunately does not keep records

narrowly defining the nature of federal cases and was thus

unable to state the number of cases involving this issue for the

period of its recordkeeping). Finally, it is obvious that much of

the impetus to seek Section 1983 relief for this narrowly cir-

cumscribed zone of constitutional deprivation has only

developed with the decision in Stone v. Powell. Prior to that

decision habeas corpus relief was available for a state prisoner’s

vindication of these Fourth Amendment rights.

Thus, all considered, it is expremely speculative to predict

that a “‘torrent”’ or ‘‘avalanche’’ of litigation would result from

°Cases found from the federal appellate court raising or decided on

this narrow issue were Covington v. Cole, 528 F. 2d 1365 (Sth Cir.

1976); Davis v. Eide, 439 F. 2d 1077 (9th Cir. 1971); Brubaker v. King,

505 F. 2d 534 (7th Cir. 1974); Bethea v. Reid, 445 F. 2d 1163 (3rd Cir.

1971); Basista v. Weir, 340 F. 2d 74 (3rd Cir. 1965). Both traditional

and computerized research tools were used in the case search under-

taken to collect the decisions of the federal trial and appellate courts

raising this question.

?!The cases found were Clark v. Lutcher, 436 F. Supp. 1266 (M.D.

Pa. 1977); Simms v. Reiner, 419 F. Supp. 468 (N.D. Ill. 1976); Clark v.

Illinois, 415 F. Supp. 149 (N.D. Ill. 1976); Clark v. Zimmerman, 394

F. Supp. 1166 (M.D. Pa. 1975); Moran v. Mitchell, 354 F. Supp. 86

(E.D. Va. 1973); Basista v. Weir, 225 F. Supp. 619 (N.D. Pa. 1964).

a

the decision of the U.S. Court of Appeals for the Eighth Circuit.

Certainly such a decision would permit state prisoners access to

the federal court and thereby add some additional cases to the

federal docket, but such was the intention of the drafters of Sec-

tion 1983 and this access is necessary to preserve the primacy

and force of the guarantees of the constitution.

Finally, amicus would also suggest that the absolute number

of cases which might be filed is not the relevant inquiry. Judicial

economy, in the context of collateral estoppel rules, is premised

on a desire to prevent fruitless, wasteful and oppressive litiga-

tion of specific claims, not on wholesale rejection of certain

types of claims or calculations of the total number of claims

which may be brought in a specific context.

Amicus respectfully suggests that the Court should focus on

the question whether federal interests outweigh the policies of

res judicata in the context of a single case. The answer to this

question with respect to a single case would provide the answer

to the question whether the volume of litigation would be

justified. For, if this form of relief is found justified and

necessary in the context of a single case in order to provide an

added deterrent to unconstitutional and lawless behavior, then it

will similarly be justified for each subsequent case. Total

volume of cases thus becomes irrelevant.*?

Again, amicus suggests that the relevant inquiry should be

whether in this setting federal interests in the protection of con-

stitutional rights require a federal forum be available at some

stage of a criminal proceeding and whether the devotion of the

federal courts’ time and energy to that task is justified. Having

answered this question the absolute number of cases is unimpor-

tant.

?? Amicus in any case believes that that volume would not be great in

view of the highly limited context of this case, involving a Fourth

Amendment claim relating to an alleged search and seizure previously

litigated in a state court proceeding.

a!

CONCLUSION

The protection of federal civil rights presents special demands

which overshadow the policies of res judicata. A civil action for

relief pursuant to 42 U.S.C. §1983 provides a maximum of

deterrence of illegal searches and seizures while imposing a

minimum of cost on society at large. The deterrent effect of

such litigation, where federal habeas corpus relief is not

available, justifies the subordination of res judicata policies in

order to enhance the protection of federal civil rights.

Amicus submits that the ruling of the U.S. Court of Appeals

for the Eighth Circuit was correct. That decision properly held

that this Court’s opinion in Stone v. Powell supports and re-

quires the conclusion that relief in accordance with the Civil

Rights Act be permitted to a state prisoner whose federal civil

rights have been violated in the search and seizure of evidence

subsequently admitted at his criminal trial. This holding com-

ports with the long-standing doctrine that normal principles of

res judicata do not apply with full vigor in the context of protec-

tion of the constitutional rights of state prisoners. It would

create a significant deterrent to unlawful police behavior while

minimizing the cost to society of such deterrence.

Respectfully submitted,

DANIEL L. HUMAN

130 South Bemiston, Suite 405

Clayton, MO 63105

and

MICHAEL A. WOLFF

St. Louis Univ. Law School

3642 Lindell Blvd.

St. Louis, MO 63108

For the American Civil Liberties

Union of Eastern Missouri