Opposition Brief — Thompson v. Hammond

No. 87-1073 })

UNITED STATES FILED

“JAN 29 Be

October Term, 1988

CLERK

oe

IN THE SUPREME COURT OF THE| Supreme Court, Us,

JOSEPH F. — J

RUSSELL T. THOMPSON and

LOIS L. THOMPSON, his wife,

Petitioners

We

LUCINDA HAMMOND, Individually and in

her official capacity as a Pennsylvania

State Trooper; CORPORAL RONALD PROUGH,

Supervising Officer of the Pennsylvania

State Police, Individually and in his

official capacity and

COMMONWEALTH OF PENNSYLVANIA,

PENNSYLVANIA STATE POLICE,

Respondents

BRIEF IN OPPOSITION

LeROY S. ZIMMERMAN

Attorney General

BY: JOHN G. KNORR, III

Senior Deputy Attorney General

Counsel of Record

ANDREW S. GORDON

Chief Deputy Attorney General

Office of Attorney General

15th Fl., Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

.

QUESTION PRESENTED

On the facts of this

case, did the courts below

correctly decide that the

conduct of the respondents

was not "outrageous" with-

in the meaning of United

States v. Russell, 411 U.S.

423 (1979)?

PAGE -

QUESTION PRESENTED............... i

TABLE OF CONTENTS...............- ii

TABLE OF AUTHORITIES............. 1ii

STATEMENT OF THE CASE............ 1

ARGUMENT............ tek one ee 7

a rere ee arn 10

ee

335 Pa. Super. 332, 484

oe Se Re eee

SS Se. x ) re

STATUTE

Pa. Stat. Ann. titl. 53,

§ 46191 a I A, ee o's os

-iii-

STATEMENT OF THE CASE

Bs This is a civil rights

action arising. out of an undercover drug

investigation by the Pennsylvania State

Police. Petitioner Russell T. Thompson

seeks damages from the _ respondents,

Trooper Lucinda Hammond and Corporal

Ronald Prough of the State Police, on

the theory that they violated his

constitutional rights by entrapping him

into committing a crime.

2. In 1980, the State Police

began an undercover’ investigation of

petitioner, then employed as a police

officer by the Borough of Carlisle,

Pennsylvania. The investigation was

begun at the -request of the Carlisle

chief of police, and was carried out by

Trooper Hammond, under the supervision

of Corporal Prough. Pet. App. la, 8a.

Trooper Hammond, working under-

cover, met with Thompson on a number of

occasions in 1980 and 1981. On these

occasions, they repeatedly discussed

drugs, and Thompson's purported ability

to obtain drugs. On March 23, 1981,

Thompson obtained 4.5 grams of marijuana

and gave it to Trooper Hammond. He was

arrested and charged with unlawful

delivery of a Schedule I controlled

substance, and conspiracy. Pet. App.

2a, 8a.

Thompson's defense was’ that

Trooper Hammond had entrapped him.-. He

raised this issue in pre-trial motions

which were denied. He raised it again

at trial, but was convicted by a jury.

He raised it yet again in post-trial

motions, but these also were denied.

Pet. App. 2a, 9a.

On appeal, however, a three-

judge panel of the Pennsylvania Superior

Court reversed. The two judges of the

majority held that there had been entrap-

ment as a matter of law. The other

judge dissented, adopting the opinion of

the lower court, and would have held

that there had been no entrapment.

Commonwealth v. Thompson, 335 Pa. Super. .

332, 484 A.2d 159 (1984); Pet. App.

2a-3a, 9a-10a.

In the meantime, the Borough of

Carlisle suspended and then fired peti-

tioner as a police officer. Petitioner

appealed to the Borough's Civil Service

Commission, but at his request, his hear-

ing was de. jyed until after the dispo-

“sition of the criminal charges. Pet.

App. 8a-9a.

At some time before the hearing,

however, petitioner was arrested and

convicted of soliciting a prostitute, as

a result of which he decided not to seek

reinstatement as a police officer.!

Pet. 9a. In addition, the Borough in

the meantime had re-hired petitioner in

a non-police capacity, so that the only

remaining issue in his civil service

appeal was his claim for back pay for

the five-month interval during which he

was unemployed. Ibid. After a hearing,

the Civil Service Commission denied

petitioner's request for back pay, and

lpetitioner's statement that he

was "not able" to recover his job

"despite recourse to the local Civil

Service Board," Pet. 8, is thus

misleading.

petitioner did not appeal that decision.

See Pa. Stat. Ann., tit. 53, § 46191

(Purdon 1986 Supp.)(right of appeal to

court of common pleas).

3. The District Court granted

the respondents' motion for summary

judgment on all of petitioner's

claims.” Petitioner's primary claim,

and the only one before the Court, was

that the respondents had violated the

due process clause by entrapping him.

In rejecting this claim, the District

Court recognized that entrapment does not

2In addition to the claim

discussed in his petition, Thompson

asserted a procedural due process claim

and a claim based on a constitutional

version of abuse of process. The

District Court granted summary judgment

to the defendants on these claims as

well, Pet. App. 4a, n., and the Court of

Appeals affirmed, Pet. App. 18a-20a.

Petitioner has not pursued these claims

in this Court.

ordinarily present an issue of consti-

tutional dimensions, but that this Court

had nevertheless left open the theoret-

ical possibility that police misconduct

could be "so outrageous that due process

principles would absolutely bar. .. a

conviction." Pet. App. 4a, quoting

United States v. Russell, 411 U.S. 423,

431 (1973).

On the assumption that the same

analysis would apply in a civil rights

action, the District Court applied the

Russell standard to the facts of this

case and held that the respondents'

conduct had not reached the "level of

outrageousness sufficient to constitute

a due process deprivation." Pet. 5a.

The Court of Appeals, following the same

analysis, affirmed. Pet. App. lla-18a.

ARGUMENT

i # According to the peti-

tioner, the questions in this case are

1) whether police entrapment can serve

as the predicate for a civil rights

action and 2) if so, what standard

governs such an _- action? Pet. 3.

Neither of these questions, however, is

properly before’ the Court, because

neither was addressed by the courts

below or raised by any party.

In the courts below, the respon-

dents assumed, for purposes of summary

judgment, 1) that police entrapment

could give rise to a civil rights cause

of action and 2) that such an action

would be governed by the "outrageous

conduct"' standard of United States v.

Russell, supra. As the petitioner

concedes, the lower courts proceeded on

the same assumptions. Pet. 9; Pet App.

15a ("While the due process aspect of

entrapment has not yet been brought

before the Supreme Court in an action

under 28 [sic] U.S.C. § 1983, presumably

the same [Russell] analysis applies.").

Petitioner did not, of course, challenge

the first of these assumptions. Nor did

he, then or now, challenge the second;

petitioner has always conceded that the

"outrageous conduct"' standard is the

appropriate one. Pet. 45 (“Court is

asked to decide whether the law

recognizes a civil cause of action based

upon outrageous police investigation

techniques........""). Petitioner cannot

ask the Court to decide questions which

the courts below resolved, at least

provisionally, in his favor.

a. The only question that

could properly be before the Court is

whether the courts below correctly

determined that the respondents' conduct

was not "outrageous'"' under Russell. The

application of an unchallenged general

standard to the facts of a particular

case is not, however, a matter that

justifies discretionary review by. the

Court, and petitioner has offered no

other reason--such as a conflict among

the circuits--that would justify review.

CONCLUSION

For the foregoing reasons, the

respondents ask that the writ of

certiorari be denied.

Respectfully submitted,

LEROY S. ZIMMERMAN

Attorney General

By: JOHN G. KNORR, III

Senior Deputy Attorney General

ANDREW S. GORDON

Chief Deputy Attorney General

Chief, Litigation Section

Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

Date: January 25, 1988

vite