Opposition Brief — Cameron v. Fogarty

a Supreme Court, U.S.

3) FILED

No. 86-1402 MAR 25 1987

IN THE JOSEPH F. SPANIOL, JR.

CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

KENNETH S. CAMERON,

Petitiotier,

v.

MATTHEW FOGARTY and JOHN HALBIG,

Respondents.

RESPONDENTS' BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETER L. ZIMROTH,

Corporation Counsel,

Attorney for Respondents,

100 Church Street,

New York, New York 10007.

(212) 566-8686

LEONARD J. KOERNER*

JUNE A. WITTERSCHEIN,

ELIZABETH DVORKIN,

of Counsel.

*Counsel of Record

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

COUNTER-STATEMENT OF

THE QUESTIONS PRESENTED

1. At common law, a _ plaintiff's

conviction of the crime he or she _ was

arrested for constituted a complete defense

to an action for false arrest.

Should the defense be excluded from a

false arrest action brought under 42 U.S.C.

$1983 when the defense is consistent with

the deterrent and compensatory purposes of

the Ci.il Rights Act?

2. Whether the respondent police

officers had a legally sufficient basis to

detain petitioner until they could check his

car's registration?

TABLE OF CONTENTS

COUNTER-STATEMENT OF THE

A Saag a Oe ee

1. The District Court Opinion

2. The Second Circuit Opinion

REASONS FOR DENYING THE WRIT

I. THE LOWER COURT'S

DECISION FOLLOWED THE

APPLICABLE DECISIONS OF

THIS COURT AND IS NOT IN

CONFLICT WITH THE

HOLDINGS OF ANY OTHER

CSE. ONG WE Reese ceccces

II. THE ISSUE RAISED BY

THE PETITION NEED NOT BE

REACHED BECAUSE ON THIS

RECORD THE RESPONDENTS

HAD A LEGALLY SUFFICIENT

BASIS TO DETAIN

hace as cccccce

LL!" - date A wies 6 666% <6

Page

15

18

TABLE OF AUTHORITIES

Cases:

Allen v. McCurry, 449 U.S. 90

in a ae Ci ek oye

Broughton v. State, 37 N.Y.2d

451, cert. denied, sub nom

Schanbarger v. Kellogg,

ee eS Se le

Brown v. Edwards, 721 F.2d

2462 (OER CaP. 1964) «sn ccccsecs

City of Newport v.

Fact Concerts, Inc.,

Gop Sletle DOT EEE) oe es evcoes

Covington v. Cole, 528

F.2d 756 (Sth Cir. 1976)

Greer v. Turner, 603 F.2d

ee See SD —t ec eee

Guerro v. Mulhearn, 498 F.2d

Rae GE es ” cececwceces

Haring v. Prosise,

462 U.S. 306 (1983) _..........

Holley v. Mix, 3 Wend. 350,

20 Am. Dec. 702 (N.Y.

s Eee ro

Jackson v. Official Representatives

of the L.A.P.D., 487 F.2d

oe eee

Page

14

13

TABLE OF AUTHORITIES

Page

Cases

Malley v. Briggs, __U.S.__,

106 S. Ct. 1092 (1986) ...... 7. &

11-12, 13

Martin v. Delcambre, 578 F.2d

1164 (Sth Cire. 1978) «sno cece 12

McClam v. Barry, 697 F.2d 366

(D.C. Cir. 1983), overruled on

other grounds, Brown v. United

States, 742 F.2d 1498 (D.C.

Cir. 1984) (en banc), cert.

denied sub nom District of

Columbia v. Brown, 471 U.S.

DT "| ebb ebescccococe 10, 12

Monroe v. Pape, 365 U.S. 167

Dt? " Bedectengegeeececcors 5

Mulligan v. Schlachter, 389

F.2d 231 (6th Cir. 1968) ...... 13

Owen v. City of Independence,

Gee Walls GEE EAE co weeccccss 5, 9

Pierson v. Ray, 386 U.S. 547

tt 9." ti dee eedubbeeoesooce 10

Raysor v. Port Authority of

New York and New Jersey,

768 F.2d 34 (2d Cir. 1985),

cert. denied, U.S.__,

Bee Gs Ges Be GREED ccceccee 10

iv

EL ————

TABLE OF AUTHORITIES

Page

Cases:

Scheuer v. Rhodes, 416 U.S.

eo) :) i APrrrrrrrrryrTre 5

Shank v. Spruill, 406 F.2d

Toe (Sth Cir. 1968) «ss ccccvcces 13

Terry v. Ohio, 392 U.S. 1

Tn :. | pededdedossecosooecs 16

Tower v. Glover, 467 U.S.

Pe. | rrrrryrrTrrrrrryrrr 7

United States v. Obregon,

748 F.2d 1371 (10th

- Si 0 Ey reer ry rrrTryTyy 17

United States v. Place,

462 U.S. 6GO6 (1963) «lc eee 17

United States v. Sharpe,

470 U.S. 67S (1965) «_—_— ccc cccee 17

Statutes:

Tae rr §8=§=—Fsé_ (ssn hh oh we ow OB 4, 15

ere © gi sectecoeee passim

Other Authorities:

Harper & James, The Law of Torts

et. +: Greebeeesdeaneeses i}

Restatement (Second) of Torts ... 8

Vv

= fe is", ee ee ae ee: et eee ee ae oe Le die eae Posen! » , r _ 7 ee ee

No. 86-1402

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

KENNETH S. CAMERON,

Petitioner,

Vv.

MATTHEW FOGARTY and JOHN HALBIG,

Respondents.

RESPONDENTS' BRIEF IN OPPOSITION TO A

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

COUNTER-STATEMENT OF THE CASE

Petitioner, Kenneth Cameron, was

stopped by the respondents, two New York

City police officers, while driving in New

York City in a car with Illinois license plates

end @ teoken Window (2a).' The officers

stopped petitioner because he made an illegal

right turn and parked iilegally at a bus stop

and because the broken window suggested

the car had been stolen (3a).

When asked for identification, petitioner

produced a Virginia driver's license in the

name Sammy Davis Jr. and a carbon copy of

a Hertz rental agreement made out to Jenne

Currie with the name Sammy Davis, Jr.

added in handwritten ink as an additional

driver (4a). The rental agreement provided

that the car would be returned in Chicago

ten days earlier (4a).

The officers radioed in to see if the car

had been reported stolen but received no

response (4a). Because they remained

1 parenthetical references are to the

petitioner's appendix.

ene a

Suspicious, they went to the _ stationhouse

with Cameron to investigate further (4a).

After calling Hertz, the officers learned

that the car had been reported stolen (4a).

Petitioner was then placed under arrest and

charged with, inter alia, criminal possession

of stolen property (5a). After a four day

jury trial, petitioner was convicted of first

degree possession of stolen property (7a).

The conviction was affirmed on appeal (7a).

Petitioner then filed a complaint under

42 U.S.C. §1983 alleging that he had been

arrested without probable cause (7a). The

District Court granted respondents summary

judgment and the Court of Appeals for the

Second Circuit affirmed (3a, 26a).

ae

1. The District Court Opinion

The District Court relied on two

theories in granting respondents summary

judgment. First, the Court reasoned that

because of the similarity between a common

law false arrest action and a section 1983

action alleging an arrest without probable

cause, the common law defense of a

subsequent conviction on the charge

("conviction bar") should apply to _ the

section 1983 action (25a):

Given the similarities in the state

and federal claims here, logic

would dictate that plaintiff's state

conviction would also bar a federal

claim asserting the absence of

probable cause to arrest.

The Court also reasoned that petitioner's

claim was precluded under 28 U.S.C. $1738

because under New York law, petitioner's

conviction "necessarily includes a finding

that there was probable cause to arrest...."

(26a).

PN si css

a enceenneneiecermeememar

é

2. The Second Circuit Opinion

The Court of Appeals unanimously held

that the common law conviction bar applies to

a section 1983 action alleging arrest without

probable cause. In so holding, the Court

followed the long line of cases that have held

that in enacting section 1983, Congress

"likely intended" common law defenses. to

apply. City of Newport v. Fact Concerts,

Inc., 453 U.S. 247, 258 (1981). See, e.g.,

Monroe v. Pape, 365 U.S. 167, 187 (1961);

Scheuer v. Rhodes, 416 U.S. 232, 247-48

(1974). (14a-15a, 17a-18a).

Relying on Owen __v. City of

Independence, 445 U.S. 622, 638 (1980), the

Court decided that the defense "was well

established at common law at the time 1983

was enacted" and that "its rationale was

compatible with the purpose of the Civil

Rights Act...." (14a-15a).

ae

Application of the defense to section

1983 is, the Court found, appropriate under

both the deterrent and compensatory

purposes of the Civil Rights Act (18a).

Analyzing the arrest as "premature", the

Court found that any injury is

"insubstantial" (18a). Moreover, the

exclusionary rule both "minimizes the injury"

caused by a premature arrest and deters

such arrests (19a). The Court concluded

(19a):

{T]he proper accommodation

between the individual's interest in

preventing unwarranted intrusions

into his liberty and _ society's

interest in encouraging the

apprehension of criminals requires

that $1983 doctrine be deemed, in

the absence of any indication that

Congress intended otherwise, to

incorporate the common-law

principle that, where law

enforcement officers have made an

arrest, the resulting conviction is

a defense to a $1983 action

asserting that the arrest was made

without probable cause.

REASONS FOR DENYING THE WRIT

I. THE LOWER COURT'S

DECISION FOLLOWED THE

APPLICABLE DECISIONS OF THIS

COURT AND IS NOT IN CONFLICT

WITH THE HOLDINGS OF ANY

OTHER CIRCUIT.

The decision below properly followed

the "well established" approach adopted by

this Court to resolve whether a defense is

available under 42 U.S.C. $1983. Malley v.

Briggs, __U.S.__, 106 S. Ct. 1092, 1095

(1986):

Our initial inquiry is whether an

official claiming immunity under

$1983 can point to a common-law

counterpart to the privilege he

asserts. If an official was

accorded immunity from tort

actions at common law when the

Civil Rights Act was enacted in

1871, the Court next considers

whether §1983's history or

purposes nonetheless counsel

against recognizing the same

immunity in § 1983 actions.

(quotations and citations omitted)

Id. See also Tower v. Glover, 467 U.S.

914, 920-21 (1984) and cases cited in the

opinion below at 14a-15a.

7

ee

|

When the Civil Rights Act was adopted

the common law provided, as it provides

today, that a conviction of the crime the

plaintiff was arrested for is a complete bar

to a subsequent civil suit for false arrest.

See, e.g., Holley v. Mix, 3 Wend. 350, 353,

20 Am. Dec. 702 (N.Y. 1829); Restatement

(Second) of Torts $§8119(a), 121(a); Harper

& James, The Law of Torts $3.18, at 372-74

(1986). Petitioner's argument that California

no longer follows the rule (Pet. at 5), is

irrelevant to the fact that the rule existed in

1871 when the Civil Rights Act was enacted.

See City of Newport v. Fact Concerts, 453

U.S. 247, 258 (1981).

Because the conviction bar was

recognized at common law, the remaining

question is whether allowing the defense

undeveitnes the Civil Rights Act's purposes

of deterrence and compensation. See, e.g.,

Malley v. Briggs, supra, 106 S. Ct. at 1095;

Owen v. City of Independence, 445 U.S.

622, 651 (1980). As the Court below

properly found, the defense is consistent

with the purposes of section 1983.

Deterrence is of minimal importance here

because, as the Couri below stated, the

exclusionary rule already operates as a

substantial deterrent (19a): "(Ojfficers

seek to avoid making flawed arrests in order

to avoid the exclusion of evidence that couid

lead to conviction." Petitioner's argument

that the exclusionary rule has no effect

when no evidence or statements are taken

(Pet. at 6), lienaves reality. Because

arresting officers can not know whether a

stop will lead to statements or evidence, the

exclusionary rule always deters improper

arrests.

The compensatory purpose behind

section 1983 does not require abandonment of

the conviction bar. As the Court below

ni

found, "the injury caused _ solely by

prematurity of arrest is, of itself,

insubstantial" (18a). A “real injury" would

be caused only if incriminating evidence were

gathered during the arrest (19a). Because

that injury is already prevented by operation

of the exclusionary rule, it is not necessary

to recognize a new civil rights action in

order to compensate the plaintiff who is

arrested prematurely. Moreover, the near

identity of the common law and section 1983

causes of action counsels in favor of

adopting the common law judgment that there

is no need for compensation. See Pierson v.

Ray, 386 U.S. 547 (1967); McClam v. Barry,

697 F.2d 366, 370-71 (D.C. Cir. 1983),

overruled on other’ grounds, Brown vv.

United States, 742 F.2d 1498 (D.C. Cir.

1984) (en banc), cert. denied sub _ nom

District of Columbia v. Brown, 471 U.S.

1073 (1985); Raysor v. Port Authority of

ee

.

New York and New Jersey, 768 F.2d 34, 40

(2d Cir. 1985), cert denied, U.S. , 106

S. Ct. 1227 (1986).

In Haring v. Prosise, 462 U.S. 306

(1983), this Court held that a plaintiff who

pleaded guilty could bring a claim under

section 1983 alleging an illegal search.

Petitioner argues that Haring requires that

he be allowed to bring his action (Pet. at

9). However, petitioner ignores the crucial

difference between his case and Haring. In

the case at bar, there is a long accepted

common law defense, the conviction bar. In

contrast, in Haring the Court was being

asked to carve out a new defense, not

available at common law, for section 1983

lawsuits. As this Court has stated:

[O]ur role is to interpret the

intent of Congress in enacting

§1983, not to make a free-wheeling

policy choice, and ... we are

guided in interpreting Congress's

intent by the common-law

tradition.

11

Malley v. Briggs, supra, 106 S. Ct. at 1097.

The Fifth Circuit drew this distinction when

it noted that this Court in Haring had not

been "squarely faced with, and expressly

‘rejected for section 1983 suits, a common law

rule preventing an action for illegal search

.." Brown v. Edwards, 721 F.2d 1442,

1449 n.8 (5th Cir. 1984).

The only other Circuit to address the

issue squarely adopted the conviction bar for

section 1983 false arrest actions. McClam v.

Barry, supra, 697 F.2d at 370-71. The

Court relied especially on the virtual identity

of the common law and civil rights causes of

action for false arrest. McClam v. Barry,

supra, 697 F.2d at 370-71.

No other Circuit has directly confronted

the issue. Decisions in the Fifth Circuit

point in both directions. Compare Martin v.

Delcambre, 578 F.2d 1164 (1978) (apparently

applying conviction bar); Covington v. Cole,

12

528 F.2d 1365 (1976) (same); Shank v.

Spruill, 406 F.2d 756 (1969) (same) with

Greer v. Turner, 603 F.2d 521 (1979)

(apparently rejecting conviction bar);

Brown v. Edwards, supra, 721 F.2d at 1449

n.8 (same). Other Circuits have suggested,

in dicta, that the conviction bar should be

excluded from a section 1983 action. See

Guerro v. Mulhearn, 498 F.2d 1249, 1254-55

(Ist Cir. 1974); Mulligan v. Schlachter, 389

F.2d 231 (6th Cir. 1968). Cf. Jackson v.

Official Representatives of the L.A.P.D., 487

F.2d 885, 886 (9th Cir. 1973) (issue raised

only in traditional collateral estoppel terms).

However, those decisions do not follow

the approach laid down by this Court for

deciding whether a defense is excluded from

section 1983. See, e.g., Malley v. Briggs,

supra, 106 S. Ct. at 1095. Further, those

decisions do not discuss the reasons relied

on by the Second and District of Columbia

13

Circuits for application of the conviction bar

to a 1983 action.

The Second and District of Columbia

Circuits are thus the only courts to rule on

this precise issue. Both Circuits applied the

common law conviction bar to the cognate

. section 1983 action and held that a conviction

is "conclusive evidence of the good faith and

reasonableness of the officer's belief in the

lawfulness of the arrest" (18a).2

Thus, there is no need to review this

case. The Second Circuit decision followed

2Uunder New York law a criminal conviction

precludes subsequent civil ee over

probable cause to arrest. roughton v.

State, 37 N.Y.2d 451, 458, om. , denied sub

nom Schanbarger v. Kellogg, 423 U.S. 929

(1975). The Court below did not reach the

question of whether 28 U.S.C. §1738

requires application of this preclusive rule

(13a). See Allen v. McCurry, 449 U.S. 90,

96 (1980). See also Haring v. Prosise, 462

U.S. 306, 314 (1983) (determination of the

preclusive effect of a prior conviction under

state law is the "threshold question" in a

1983 action).

ee Bay aS tt

14

this Court's precedent in the area and the

decision is not in conflict with the holdings

of any other circuit.

II. THE ISSUE RAISED BY THE

PETITION NEED NOT BE REACHED

BECAUSE ON THIS RECORD THE

RESPONDENTS HAD A LEGALLY

SUFFICIENT BASIS TO DETAIN

PETITIONER.

This is not a case, as_ petitioner

Suggests, where an arrested person was

illegally detained for days on a hunch (Pet.

at 8). The respondent police officers had a

legally sufficient basis to detain petitioner

for initial questioning and for further

investigation. .

The officers stopped petitioner while he

drove in New York City in a car with Illinois

license plates, because he made an illegal

3The Court below noted, but did _ not

address, the question whether respondents

had probable cause to arrest petitioner

(20a).

15

right turn, parked illegaliy at a bus stop,

and because his car had a broken window,

which suggested it had been stolen (3a-4a).

This was a legally sufficient basis for the

initial stop. See, e.g., Terry v. Ohio, 392

U.S. 1 (1968).

When questioned, petitioner produced a

Virginia driver's license in the name Sammy

Davis, Jr. and a carbon copy of a Hertz

rental agreement, which provided that the

car would be returned ten days earlier,

made out to Jenne Currie (3a-4a). Petitioner

said Currie was his aunt (4a). The name

Sammy Davis Jr. had been handwritten onto

the rental agreement as an additional driver

in original ink (4a). Another ink notation

said an accident report had been filed (4a).

Respondents received no response to

the radioed inquiry into whether the car had

been stolen (4a). At that point, the

information provided by petitioner

16

constituted a legally sufficient basis for

detaining* petitioner until respondents could

telephone Hertz. See United States v.

Sharpe, 470 U.S. 675 (1985); United States

v. Otregon, 748 F.2d 1371, 1376 (10th Cir.

1984). The detention was required because

respondents needed to telephone Hertz to

check the status of the car. Thus, "the

police diligently pursued a means. of

investigation that was likely to confirm or

dispel their suspicions quickly, during which

time it was necessary to detain’ the

defendant." U.S. v. Sharpe, supra, 470

U.S. at 686. See also United States v.

Place, 462 U.S. 696, 709 (1983).

Given the legally sufficient basis for

respondents' detention of petitioner, this

4the record does not disclose whether

petitioner went voluntarily to the _ police

station where the phone call to Hertz was

made.

17

—

Court need not reach the question of

whether petitioner could bring a section 1983

action despite his conviction on the charge

for which he was arrested.

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED.

April 3, 1987

Respectfully submitted,

PETER L. ZIMROTH,

Corporation Counsel,

Attorney for Respondents,

100 Church Street,

New York, New York 10007.

(212) 566-8686

LEONARD J. KOERNER,*

JUNE A. WITTERSCHEIN,

ELIZABETH DVORKIN,

of Counsel.

*Counsel of Record

18