Petition — Blake v. Peters

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Supreme Court of the United States

OCTOBER TERM, 1981

REAVER BLAKE, et al,

Petitioner

VERSUS

PHIL PETERS, et al,

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

HERBERT SHAFER

432 Delmont Dr., N.E.

Atlanta, Georgia 30305

Tel. (404) 266-8827

JAMES K. O'MALLEY

205 Ross St.

Pittsburgh, Pa. 15219

Tel. (412) 391-7686

ATTORNEYS FOR PETITIONERS

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

REAVER BLAKE, et al,

Petitioner

VERSUS

PHIL PETERS, et al,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

QUESTIONS PRESENTED

1. Is §26-2709 Georgia Code facially violative of the Fifth and

Fourteenth Amendments’ due process clause where it simply

declares - - without providing for any process, substantive or

procedural, pre - or post - seizure - - that “any funds. . . used

for purposes of gambling in any gambling place shall vest in

the County and shall be paid into the County Treasury as County

funds (emphasis added) ?”

2. Is §26-2709 Georgia Code, as applied, violative of the Fifth

and Fourteenth Amendments’ due process clause where, almost

six (6) years after the confiscation of Petitioners’ money by the

state police, it permits, without any pre - or post - seizure hear-

ing, the state police to keep it, even though all criminal charges

-i-

arising out of the initial confrontation have long since been nol-

prossed?

3. In a Section 1983 action brought against state police offic-

ials to compel return of money unlawfully seized, are the ag-

grieved plaintiffs entitled to a pre-trial hearing to determine

the Constitutionality of the search and seizure, where the de-

fendants rely on and vicariously assert the State’s forfeiture

statute as their authority for the taking and retention of the

money ?

4. May evidence seized during a flagrantly unconstitutional

search be offered to prove a good-faith defense in a Section

1983 action ?

TABLE OF CONTENTS

Page

Questions Presented 2.0.0... ccc cccccccccctcccssvccccees i

Table Of Authorities ......ccccccccscccevccccccssescvcse v

SE OUI k's hg Rab osc wce'b a MWe b oa Os cb bine oda eee ]

PRUNE. iv bru.o 00 0b b> Mba wOd bi bee eee bere veges ows 2

Constitutional and Statutory Provisions Involved............. 2

SORT OE UNO FOCUS cis dc cccrcaHen ede sescavewrecvecccd a

How, When and Where the Federal Questions were raised ...... 5

Se Se I SO EEE so ctaiwak Cawee oo abuea see cee 7

A. (1) There is a direct and irreconcilable conflict

between the decision below and decisions

ios hah vaearch¥eacabin sundaes 7

(2) The decision below is in direct conflict

with decisions of other circuits............... 7

(3) It is in direct conflict with its own decisions ....7

(4) The decision below is in direct conflict

with decisions in Georgia and other states ...... 7

B. This case involves important Due Process

RRS RPE CARE EOS ER i eae Cee 8

Cc. The result below is shockingly wrong and

presents substantial federal questions ......... 10

TE st TE Fe ant tnt NN 12

TABLE OF CONTENTS Continued

Page

Se IIE, gh, ln 7 0 x 6 o's 3b Kimi bod oo bade Slee ewe 13

Seri nk 6b ude Sc Deo We bw 4 VG .eb bees la

TABLE OF AUTHORITIES

Cases:

ee EE Se yn acevces ie cbasemateeoes 9

Berkowitz v. United States, 340 F. 2d 168 (ist Cir. 1965) .. .7, 10

Blackmon, et al. v. Brotherhood Protective Order of Elks,

EME LAE Dh baase babdis clecebeaecdeso sees 7

Boyd v, United States, 116 U.S.616 ......... 00. c cee eens 9

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.

EP Veen Wo dks aH eeeOPMate sd cele SRapeiin'c cece 9

Carlisle v. State ex rel. Trammell, 276 Ala. 436, 163

PE SU EIEP TAs bine Oak cee pips ccrvaveincooces 8

Carson v. State, 221 Ga. 299, 144 S. E. 2d 384 (1965) ........ 7

Fuentes v, Shevin, 407 U.S. 67 ....... 0.0 c cece cece cece neces 9

Garner v, Louisiana, 368 U.S. 157, 163 ........00eeceeeees 11

SG: COTE BOCs otiavuvecececccceivcecenes 9

Jonas v. City of Atlanta, 647 F. 2d 580 (Sth Cir, 1981)..... 7,11

Lucia v. United States, 747 F. 2d 565 (Sth Cir. 1973) ......... 7

North Georgia Furnishing, Inc. v. Di-Chem, Inc., 419

i TAS cs OU Gs» DUM es wee Welew hie bbe cc cele 9

Oe Hee CU sighs VER ences Dene nUPe TRC OLEE DS 00.06 7,9

-V-

TABLE OF AUTHORITIES Continued

Page

Parish of Jefferson v. Bayou Landing, Ltd., Inc., 350

ie EE SUTIN TO tk Suk SN emacs covesesceues 8

People v. Moore, 69 Cal. 2d 674, 446 P. 2d 800 (1968) ......... 8

Pizzarello v. United States, 408 F. 2d 579 (2d Cir. 1969) ...... 7

Rice v. Sioux City Cemetery, 349 U.S. 70,74 ...........05. 11

Sniadach v. Family Finance, Corp., 295 U.S. 337 ............ 9

State v. Spoke Committee Univ. Center, 270 N.W. 2d

SRI EPO Ga rea ao hss sesedases cbs bssdneres 8

Thompson v, City of Louisville, 362 U.S. 199 .............. 11

Transamerican Freight Lines v. Brada Miller Freight

es DR Me | PPEVTEL TY LEER Ee 2

United States v. Premises Known as 608 Taylor Ave.,

SEAT, 28 1297 Gad Ce BGTE) wis cc cicccticrcccccces 10

United States v. Wilson, 540 F. 2d 1100 (D. C. Cir. 1976)..... 10

Wisconsin v. Constanteau, 400 U.S. 433 ........00 cece ee eeee 9

Constitutional Provisions:

United States Constitution Amendment IV ................. 2

United States Constitution Amendment V ................5: 2

-vi-

TABLE OF AUTHORITIES Continued

Page

United States Constitution Amendment XIV ................ 2

Statutes:

See CE, ME OS ian OUD bo 5,66 0's vd are de wwees 0 0's 2,3

Ry REE Rss 5 shin ) Rie ole Phew iia hE Up ae dau c's b 60 2

RRR A

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

REAVER BLAKE, et al.

Petitioner

VERSUS

PHIL PETERS, et al,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

The Petitioners, Reaver Blake, Mary A. DeLaughter, Fred-

erick Lee Bell, Arthur McConnehead, Jr., Eddie B. Tucker, Carl-

ton Wyche, P. J. Burns, Robert E. Davis, Samuel Thomas, Ben

Wilson, James Lee, Marie Walker, Sammy Branch, E. S. Johnson,

Sr., Mamie Lou Larkin and George Waters, respectfully petition

for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit in this case.

OPINION BELOW

The judgment of the trial court was affirmed, without

opinion, with a direction that it not be published. (App. A,

infra, la).

JURISDICTION

The judgment of the court of appeals was entered on April

14, 1981. (The fact that it ordered its judgment, without opinion,

not to be published is no bar to this Court’s review. See Trans-

american Freight Lines v. Brada Miller Freight Systems, 423

U.S. 28, 34.) The jurisdiction of this Court is invoked under

28 U.S.C. 1254 (1), and is timely.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution

provides:

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

houses, papers, and effects, against unreasonable search-

es and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.”

The Fifth Amendment to the United States Constitution

provides in pertinent part:

. . . nor shall any person. . . be deprived of life,

liberty, or property, without due process of law. . . .

The Fourteenth Amendment to the United States Consti-

tution provides in pertinent part:

. . . mor shall any State deprive any person of life,

liberty, or property, without due process of law. .

§ 1983 Title 42 U.S.C. provides:

Ee,»

Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, subjects,

or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or inmunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an action at

law, suit in equity, or other proceeding for redress.

Georgia’s forfeiture statute, §26-2709, Georgia Code, pro-

vides:

SEIZURE OF GAMBLING FUNDS OR.

OTHER THINGS OF VALUE.

Any funds or other things of value used for purposes

of gambling and seized in any gambling place or found

in or on any gambling device shall vest in the county

and shall be paid into the county treasury as county

funds (emphasis added).

STATEMENT OF THE FACTS

Beginning at about 11:00 p.m. on March 29th and continu-

ing on till 3:00 a. m. March 30th, 1974, no less than 12 and,

as the night wore on, as many as 32 agents of the Georgia Bureau

of Investigation (GBI) conducted a lottery raid at the Lowndes

County Country Club, a gathering place for black citizens in Val-

dosta, Georgia (T. 227, 154, 34).

The were armed with a warrant authorizing the search of

one “L. B, McFarland, b/m, and any other person in the below

described premises who could reasonably be involved in the

concealment and destruction of evidence described in the war-

rant.” (Defendants’ x#40; T155, 184).

They were armed, as well, with M-1 carbines, side-arms,

3.57 magnums, shot-guns, and sledge-hammers (T100-7, 157,

244, 250).

After seizing the specific person named in the warrant,

L. B. McFarland, they seized everyone else in the Club (T290).

Other agents, positioned outside the Club, proceeded in-

discriminantly to seize anyone and everyone who drove up.

There were no exceptions (T50-51, 256-58).

Everyone was searched, including their vehicles. In ac-

cordance with fixed GBI policy females got special treatment:

they were strip-searched and examined anally and vaginally

(T158, 180).

Phil Peters, presently the Director of the GBI, candidly

admitted that, prior to the Petitioners’ seizure, the GBI agents

1/ Tare references to the pagination of the trial transcript, Vol. 2,

of the record on appeal.

had no reason to believe that any of them possessed gambling

paraphernalia or were engaged in any criminal activity (T 188).

Who was arrested depended on whether “evidence of bolita

or lottery (was found) on their person (sic), in their vehicles

or under their control.” If none, they were “released to go their

way.” Those with, were arrested, and whatever money they

had was confiscated (T189-91). For example:

Reaver Blake $ 257.43

Mary A. DeLaughter 196.66

Eddie B. Tucker 80.00

Carlton Wyche 33.00

Robert E. Davis 161.24

Sammy Branch 74.00

Mamie Lou Larkin 66.50

George Waters 31.17

Understandably, the State prosecutor made no effort to try

the Petitioners on the charges arising out of the raid. When, four

years later, as the cases were about to be nol-prossed, and the

GBI, again in accordance with fixed policy, refused to return

Petitioners’ money, a Section 1983 action was instituted.

HOW, WHEN AND WHERE THE FEDERAL

QUESTIONS WERE RAISED

From the very beginning 2/ and, apparently, in an unper-

suasive brief to the court of appeals, the Petitioners attacked the

illegality of the searches and seizures, the predatory taking and

confiscatory refusal to return the money, the facial unconstitu-

tionality of Georgia’s forfeiture statute (§ 26-2709 Georgia Code),

the unconstitutionality of the statute as applied, the failure to

2/ A pre-trial motion to suppress coupled with a request for an evidentiary

hearing was filed.

provide Petitioners with other than drumhead and pistol-at-the-

head process, and the insufficiency, as a matter of law, of the

defense interposed by the GBI agents.

The issues were clearly and fairly presented pre-trial, during

trial and post-trial, were rejected by the trial court and, pre-

sumably, were considered and rejected by the court of appeals.

They have been preserved for review.

The court denied the motion without a hearing.

REASONS FOR GRANTING THE WRIT

There is a direct and irreconcilable conflict between the

decision below and decisions of this Court.

(1) The trial court, in the belief that all evidence, including

evidence illegally seized, should be admitted in a Section 1983

action, failed to consider the forfeiture aspect of the case, and

thereby came into direct and irreconcilable conflict with this

Court’s unanimous decision in One 1958 Plymouth Sedan v.

Pennsylvania, 380 U.S. 693.

(2) The decision below is in direct conflict with decisions of

other circuits on the same matter of federal law, e. g., Berkowitz

v. United States, 340 F.2d 168 (ist Circuit, 1965), Pizzarello v.

United States, 408 F.2d 579 (2nd Circuit, 1969).

(3) For that matter, it is indirect conflict with its own decisions.

See Lucia v, United States, 474 F.2d 565 (Sth Circuit, 1973);

Jonas v. City of Atlanta, 647 F.2d 580 (Sth Circuit, 1981).

In Jonas, a spotted-cow case, the defendant police officials

vicariously asserted a Georgia forfeiture statute in a Section

1983 action as a defense to their failure to return a car which

they had seized. Judge Frank M. Johnson, ‘writing for the court

held, citing One 1958 Plymouth Sedan v, Pennsylvania that, if

the search was in violation of the Fourth Amendment, the plain-

tiff was “clearly . . . entitled to a directed verdict.” Jonas,

at 585, n 6. The only appreciable difference between Jonas and

this case is the result.

(4) The decision below is in direct conflict with decisions in

Georgia and in other states. See Carson v, State, 221 Ga. 299,

144 S. E. 2d 384 (1965) (evidence seized pursuant to deficient

warrant must be excluded in a proceeding to abate public nui-

sance). In Blackmon, et al. v. Brotherhood Protective Order of

Elks, 232 Ga. 671, a unanimous court held that, “property whose

“Je

possession is legal but which has been. . . used in an illegal

manner,” may not be seized in an unconstitutional manner and

“(evidence obtained by unlawful search and seizure may be

suppressed,” at 672.

See also Carlisle v. State ex rel. Trammell, 276 Ala. 436,

163 So. 2d 596 (1964) (suppression of illegally obtained evidence

required in a proceeding to abate a gambling nuisance; decison

rested in part on \cate statute); cf. People v. Moore, 69 Cal. 2d

674, 446 P. 2d 800, (1968); Parish of Jefferson v. Bayou Landing

Ltd., Inc., 350 So. 2d 158 (La. 1977); State v. Spoke Committee,

Univ, Center, 270 N. W. 2d 339 (N. D. 1978).

B.

This case involves important Due Process issues.

At tria! and in the court of appeals the GBI agents, in defense

of their refusal to return Petitioners’ money six (6) years after

seizure, constructed the following syllogism, not in jest:

(a) The money seized from Petitioners was gambling-

related;

(b) under §26-2709 Ga. Code, gambling-related money is

contraband per se:

(c) since gambling-related money is contraband per se, the

Petitioners have no right to possess it.

Ergo, the GBI agents don’t have to give it back.

This is precisely what the trial court charged (T359, 367-68).

The Georgia statute allows summary seizure and forfeiture

without requiring notice to the parties in interest and without

providing for an opportunity to be heard. It thus violates the

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Due Process clause of the Fifth and Fourteenth Amendments to

the Constitution.

This Court, in a variety of contexts, has held that deprivation

of any property or entitlement, without notice and opportunity

for a full hearing, is a violation of due process. Fuentes v. Shevin,

407 U.S. 67; Sniadach v, Family Finance Corp., 295 U.S. 337:

Bell v. Burson, 402 U.S. 535; Wisconsin v. Constantineau, 400

U.S. 433; Goldberg v. Kelly, 397 U.S. 254; North Georgia Furnish-

ing, Inc. v. Di-Chem, Inc., 419 U.S. 601.

The purpose of requiring that a person whose rights are

to be affected be notified and be heard is not only to insure

abstract fair-play to him, but to protect his use and possession

of property from arbitrary encroachment - - “To minimize sub-

stantively unfair or mistaken deprivations of property.” Fuentes v.

Shevin, supra, at 81. Unlike the statute in Calero-Toledo v. Pear-

son Yacht Leasing Co., 416 U.S. 663, the Georgia statute does

not provide an opportunity to be heard at any time; it simply

provides that the money ‘'shall vest” in the county.

This is not due process. And it is now beyond cavil that

defendants in a forfeiture proceeding are entitled to the same

constitutional protection accorded parties in any proceeding

that will or can deprive persons of their possessions. Boyd v.

United States, 116 U. S. 616; One 1958 Plymouth Sedan v.

Pennsylvania, 380 U.S. 693; cf. Calero-Toledo v. Pearson Yacht

Leasing Co., supra.

Moreover, the notion that no property rights can exist in

derivative contraband, such as gambling-related money, is un-

warranted:

“(T) here is some sort of interest which a possessor

has in the thing he has under his physical control. That recognition

cannot be legislatively denied in toto, that is, to the point of not

allowing it to be weighed in the judicial scales. . . (I) f the interest

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is impliedly or expressly called into existence by one of the

guarantees of the Constitution, (the State) cannot preclude the

holder of the interest from bringing it before a court of competent

jurisdiction for evaluation and such vindication as it deserves on

the merits. Somewhere in our constitutional regime’, so long

as it remains constitutional, the holder of the interest has a right

to present for adjudiciation and appraisal by an independent

court his claim that his interest has been cut off by the allegedly

unconstitutional application of (a forfeiture statute). This is

included in the very definition of constitutionalism, as we have

understood that term in the U.S. since 1803 when Marshall,

C. J., read his opinion in Marbury v. Madison. . . .” Berkowitz v.

United States, 340 F.2d 168, 172-73 (ist Cir., 1965).

Accordingly, unless §26-2709 is read as though it does not

deprive a bare possessor of the right to complain, in a timely

fashion, in an appropriate forum, of an unconstitutional depri-

vation of his property, the statute is, in that particular application,

violative of the Fourth, Fifth and Fourteenth Amendments to

the Constitution. Cf. United States v. Wilson, 540 F. 2d 1100

(D. C. Cir., 1976); United States v. Premises Known as 608 Taylor

Ave., 584 F. 2d 1297 (3rd Cir., 1978).

This was not done here.

tal

The result below is shockingly wrong and presents sub-

stantial federal questions.

This case illustrates official oppression at its shabbiest.

Hordes of GBI agents, emboldened by the fact that their victims

were black and powerless, flagrantly trampled the Petitioners’

Fourth, Fifth and Fourteenth Amendment rights. Having debased

their victims, stripped them of their dignity figuratively and

literally, and confiscated their meager funds, they told them

-10-

to go to jail. When ‘hat didn’t stick - - when, four years later

the cases were nol-prossed - - and the Petitioners asked for their

money back, the agents told them to go to hell.

The issues here are not academic or episodic. Cf. Rice v.

Sioux City Cemetery, 349 U.S. 70, 74. No less a personage than

the GBI Director, Phil Peters, has promised that dragnet seizures

and strip-searches are, and will continue to be, GBI policy (T 188,

175-76). In spite of the fact that he and his colleagues have been

haled into state and federal courts in cases involving similar melan-

choly issues - - predatory seizures of money and obdurate con-

fiscatory retention - - they will not be deterred, unless and until

someone stops them.

Worst of all, they use evidence so gathered to establish

a good-faith defense to a Section 1983 action - - and they have

been getting away with it. But see Jonas v. City of Atlanta,

647 F. 2d 580, 588, n 12 (Sth Cir., 1981). What is needed is an

unequivocal pronouncement from this Court.

The court below should have directed a verdict for the

Petitioners. The result below is so totally devoid of any legally

cognizable evidentiary support as to render it unconstitutional

under the Due Process clause. Thompson v. City of Louisville,

362 U.S. 199; Garner v. Louisiana, 368 U.S. 157, 163. The ques-

tion here is not sufficiency of the evidence, but whether the result

rests on any evidence at all - - whether those from whom money

is so seized are powerless, six (6) years later, to get it back.

CONCLUSION

For all these reasons, a writ of certiorari should issue to

review the judgment of the United States Court of Appeals for the

Fifth Circuit.

Respectfully submitted,

432 Delmont Dr., N.E.

Atlanta, Georgia 30305

Tel. (404) 266-8827

JAMES K. O’MALLEY

205 Ross St.

Pittsburg, Pennsylvania 15219

Tel. (412) 391-7686

Attorneys for Petitioners

12

CERTIFICATE OF SERVICE

I, HERBERT SHAFER, one of the Petitioners’ attorneys,

hereby certify that, in accordance with the Rules of the Supreme

Court of United States, I have served three copies of the fore-

going Petition upon the Appellees by depositing same in the

United States mail, with sufficient postage, first class affixed

thereto, and addressed to counsel for Appellees as follows:

HARRISON KOHLER, ESQ.

132 State Judicial Bldg.

40 Capitol Square, S. W.

Atlanta, Georgia 30334

This is to further certify that all parties required to be served

have been served.

This 13th day of July, 1981.

He p, | ef ~~

HERBERT SHAFE

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

NO. 80-7290

Summary Calendar

REAVER BLAKE, MARY A. DeLAUGHTER,

FREDERICK LEE BELL, ET AL.,

Plaintiffs- Appellants

VERSUS

WILLIAM F. BEARDSLEY, ET AL.,

Defendants,

PHIL PETERS, GARY M. GARNER, ET AL.,

Defendant-Appellees.

Appeal from the United States District Court for the

Northern District of Georgia

(April 14, 1981)

Before RONEY, FRANK M. JOHNSON, JR., and HENDERSON,

Circuit Judges.

PER CURIAM: AFFIRMED. See Local Rule 21.-L/

See N.L.R.B. v. Amalgamated Clothing Workers of America, 1970,

430 F, 2d 966.

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