# Opposition Brief — Cameron v. Fogarty

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1897%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 1016

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1897%3A2. Public record. Not legal advice.