Opposition — Schanbarger v. Wright

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No. 80-1330 MAR 9@

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CLERK

Supreme Court of the United States

October Te-m, 1980 |

DONALD SCHANBARGER,

Petitioner,

-against-

POLICE CHIEF OF THE VILLAGE OF

MASSENA, NEW YORK, Dale Wright,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS OF THE SECOND CIRCUIT

CARTER, CONBOY, BARDWELL,

CASE & BLACKMORE

Attorneys for Respondent

EUGENE E. NAPIERSKI

40 Steuben Street

Albany, New York 12207

Phone: 518-465-3484

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TABLE OF CONTENTS

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Argument

Conclusion

PAGE

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TABLE OF AUTHORITIES

CASES:

Adler v. Medrano, 416 U.S. 802 (1974)

Hoffman v. Pursue, Ltd., 420 U.S. 592 (1975) .......

O'Shea v. Littleton, 414 U.S. 488 (1974)

Preiser v. Rodriguiz, 411 U.S. 475 (1973) .........+.

Rizzo v. Goode, 423 U.S. 362 (1976) ..

Steffanelli v. Minard, 342 U.S. 117 (195

U.S. Constitution, Article II] §2 ......

Warth v. Seldin, 422 U.S. 490 (1975) .

Younger v. Harris, 401 U.S. 37 (1971)

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No. 80-1330

Supreme Court of the United States

October Term, 1980

DONALD SCHANBARGER,

Petitioner,

-against-

POLICE CHIEF OF THE VILLAGE OF

MASSENA, NEW YORK, Dale Wright,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS OF THE SECOND CIRCUIT

CARTER, CONBOY, BARDWELL,

CASE & BLACKMORE

Attorneys for Respondent

EUGENE E. NAPIERSKI

40 Steuben Street

Albany, New York 12207

Phone: 518-465-3484

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Statement of the Case

On October 31, 1977, at 2:00 in the morning, the plaintiff, Donald

Schanbarger, was walking on a sidewalk adjacent to Main Street in

the Village of Massena, New York. He was wearing a hooded jacket

-with the hood over a portion of his head. He was stopped and

questioned by two uniformed Massena police officers, Harold

Terry and Michael Kroeger. The plaintiff refused to give his name, a

reason for his presence, or any other information.

Several hours earlier, the officers had received a teletype message

stating that a certain certified mental patient, Thomas Myers, had

been missing from the St. Lawrence State Hospital since 8:00 p.m.

of the previous day. This hospital is less than 40 miles from the

Village of Massena. The message was an all-point bulletin directed

to the police departments in the areas and contained a physical

description of the missing patient. The message also stated that the

patient had homocidal and suicidal tendencies.

The physical description of the missing mental patient closely fit

the description of Mr. Schanbarger. The similarity in the physical

description of the two men, together with the lateness of the hour

and the fact that Mr. Schanbarger was wearing a jacket with a hood

which covered a portion of his head, prompted the officers to stop

him and ask him his name, address, and an explanation of his

conduct.

Upon being asked his name by the officers, Mr. Schanbarger

refused to answer and, indeed, refused at first to stop walking. The

officers believed that he was behaving evasively and irrationally.

This, together with all the other facts and circumstances, prompted

the officers to detain Mr. Schanbarger by bringing him to their

headquarters. Mr. Schanbarger was charged with obstructing

governmental administration (Penal Law §195.05). Later that

morning, after having learned that the escaped mental patient had

been found, this charge was dismissed and the plaintiff left the

police station witnuot che police officers learning his name or any

other information which would identify him.

As a result of this incident, Mr. Schanbarger commenced an

action in United States District Court seeking a total of Twenty-

Two Million Dollars in damages for what he alleged to be an

unconstitutional violation and deprivation of his rights. This action

was tried in June of 1979, and after a full trial on the merits covering

a span of five days, the jury returned a verdict of no cause of action.

Having been unsuccessful on his claim for money damages, Mr.

Schanbarger commenced the present action on December 5, 1979.

In his complaint, Mr. Schanbarger seeks various items of equitable

relief against the defendant in the nature of orders of injuction and

prohibitions restraining and prohibiting said defendant and more

particularly, members of the defendant’s police department from

doing certain things in connection with its functioning as a police

department. As part of the relief sought, Mr. Schanbarger asks that

the defendant and members of his department, be enjoined from

any arrest until someone is appointed by the United States District

Court to supervise the defendant, Police Chief, in the discharge of

such duties.

On February 4, 1980, the defendant brought on a motion to

dismiss the above complaint for failure to state a claim upon which

relief can be granted. Upon submission of papers from both parties,

and after due deliberation, Judge James T. Foley issued a written

decision on February 21, 1980, granting the defendant’s motion and

dismissing the complaint.

Plaintiff took an appeal from this Judgment and on September

18, 1980, the United States Court of Appeals for the Second Circuit

unanimously affirmed the Judgment of the District Court on the

opinion of Judge Foley (App. 7-9).

SUMMARY OF AGRUMENT

The District Court properly dismissed the Plaintiff's

complaint in view of the fact that the Plaintiff lacked the

requisite standing and in view of the fact that the doctrines of

res judicata and equitable restraint precluded the court from

granting the relief which the Plaintiff sought in his complaint.

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Argument

A party seeking injunctive relief must demonstrate to the Court that

acts are presently being committed which will result in his

irreparable injury. Past exposure to alleged unconstitutional

-practices does not show a present case or controversy regarding

injunctive relief, when unaccompanied by any continuing, present

adverse effects. Rizzo v. Goode, 423 U.S. 362 (1976). In order to

warrant invocation of federal court jurisdiction and to justify

exercise of the Court’s remedial powers on his behalf, the plaintiff is

absolutely required to set forth the existence of a case or

controversy between himself and the defendant within the meaning

of Article III §2 of the United States Constitution, Warth v. Seldin,

422 U.S. 490 (1975). It is respectfully submitted that a review of Mr.

Schanbarger’s complaint establishes that the plaintiff has totally

failed to meet the Article II] requirement and thus is without

standing to invoke federal court jurisdiction.

A careful reading of the plaintiff's complaint clearly shows the

absence of any allegation that the defendant is presently committing

or threatening to commit any actions against the plaintiff. Indeed,

the sole basis for Mr. Schanbarger’s claim for equitable relief is a

single incident which occurred back in October of 1977 and which is

set forth in detail in the statement of facts portion of this brief.

Under the law as enunciated by the United States Supreme Court in

Rizzo, supra, a single incident which occurred over two and on-half

years ago does not set forth a justiciable controversy supporting a

claim for equitable relief. The issue of justiciability is the threshold

question in every federal case, determining the power of the court to

entertain the suit. Warth v. Seldin, supra. In view of the plaintiff's

failure to allege facts sufficient to meet this threshold requirement,

the District Court had no choice but to dismiss Mr. Schanbarger’s

complaint.

In addition to the plaintiff's lack of standing, there are a number

of other reasons which mandated the District Court's dismissal of

this complaint. As Judge Foley indicated in his decision (App. !-6),

the doctrine of res judicata is fully applicable in actions brought

under 42 USC §1983, citing Preiser v. Rodriguiz, 411 US 475, 497

(1973). As pointed out in the statement of facts, Mr. Schanbarger

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had a full and fair opportunity to litigate the issue of whether the

police officers’ conduct was reasonable and proper. The same issue

forms the basis of his current action. It was his decision to seek

redress in the form of an action for money damages: Having been

unsuccessful in this endeavor, he is now attempting to pursue a

claim for equitable relief. Mr. Schanbarger has had his day in

Court. To allow him to pursue a claim in equity would be to work an

undue hardship on the defendant. It is respectfully submitted that

the policy underlying the doctrine of res judicata precludes the

plaintiff from bringing this follow-up claim for equitable relief.

Judge Foley, in dismissing Mr. Schanbarger’s complaint, also

found that serious questions exist concerning the propriety of a

federal court enjoining police from conduct that might be lawful

(App. 1-6); citing Allee v. Medrano, 416 US 302, 813-816 (1974)

(App. 1-6). He also held the doctrine of equitable restraint to be

applicable (App. 1-6), citing Younger v. Harris, 401 US 37 (1971)

and Hoffman v. Pursue, Ltd., 420 US 592 (1975). An injunction is

an extraordinary remedy which should be exercised sparingly and

with utmost caution. This settled rule of law becomes particularly

true when the federal courts are asked to enjoin the activity of a local

governmental entity. Important considerations of federalism are

additional factors which weigh against any such action. Federal

Courts must be constantly mindful of the “special delicacy of the

adjustment to be preserved between federal equitable power and

State administration of its own law.” Rizzo v. Goode, supra; O'Shea

v. Littleton, 414 US 488 (1974); Stefanelli v. Minard, 342 US 117

(1951).

The United States Supreme Court in Rizzo, further held that

where, as in the instant action, injunctive relief is sought against

those in charge of a local government entity, the principles of equity

militate heavily against the grant of an injunctive except under the

most extraordinary of circumstances. The Court in Rizzo quoted

the previous decision in O'Shea v. Littleton, supra, which stated

that “a major continuing intrusion of the equitable power of the

federal courts into the daily conduct of state criminal proceedings is

in sharp conflict with the principles of equitable restraint . . . “and

held that the above principle is equally applicable where the

intrusion involves the activity of a local government entity.

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6.

Clearly the conduct which forms the basis of Mr. Schanbarger’s

complaint cannot be found to constitute “most extraordinary

circumstances” as envisioned by the Supreme Court in Rizzo.

Police officers have the responsibility for the protection of the lives

and property of our citizens. On the morning of October 31, 1977,

under all of the above-mentioned circumstances, the officers

reasonably and in good faith detained Mr. Schanbarger. In fact,

had they not done so, they would have been remiss in their duties. It

should be noted that this detention which forms the basis for Mr.

Schanbarger’s claim for equitable relief could easily have been

avoided had Mr. Schanbarger simply provided the officers with his

name and a brief explanation of his presence. Despite all of the

foregoings, Mr. Schanbarger is asking this Court to in effect assume

control and supervision of the Village of Massena police force. It is

respectfully submitted that such judicial intervention is in direct

conflict with the pronouncements of the Supreme Court regarding

federal equitable restraint, and accordingly, upon this ground, as

well as those previously discussed, the plaintiff has failed to state a

claim upon which relief can be granted.

CONCLUSION

The Petition for Writ of Certiorari should be denied.

EUGENE E. NAPIERSKI

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Dated: Albany, New York

March, 1981