239 F.2d 226 (9th Cir. 1956), 15074, Agnew v. City of Compton

Docket Nº:15074.
Citation:239 F.2d 226
Party Name:R. W. AGNEW, Appellant, v. CITY OF COMPTON, a municipal corporation; H. R. Lindemulder; and Frank Sprague, Appellees.
Case Date:December 17, 1956
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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239 F.2d 226 (9th Cir. 1956)

R. W. AGNEW, Appellant,

v.

CITY OF COMPTON, a municipal corporation; H. R. Lindemulder; and Frank Sprague, Appellees.

No. 15074.

United States Court of Appeals, Ninth Circuit.

December 17, 1956

Rehearing Denied Jan. 24, 1957.

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[Copyrighted Material Omitted]

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R. W. Agnew, in pro. per.

James G. Butler, City Atty., H. H. Hegner, Jr., Asst. City Atty., Compton, Cal., for appellees City of Compton and Frank Sprague.

Reed & Kirtland, F. O. Reed, Robert C. Packard and Henry E. Kappler, Los Angeles, Cal., for appellee H. R. Lindemulder.

Before DENMAN, Chief Judge, and BARNES and HAMLEY, Circuit Judges.

HAMLEY, Circuit Judge.

Relying principally upon the Federal Civil Rights Act, 42 U.S.C.A. § 1981 et seq., R. W. Agnew instituted this action for damages, and for injunctive and declaratory relief. The City of Compton, California, its electrical inspector, and two of its police officers, were named defendants.

After the complaint was filed, defendants moved to dismiss the action for lack of jurisdiction and failure to state a cause of action. The motions were granted, and judgment was entered for defendants. Plaintiff appeals. The only question before us is whether the well-pleaded facts establish jurisdiction and state a cause of action.

It is alleged in the complaint that, acting without a warrant, the two police officers entered Agnew's premises, arrested him, seized some of his property, and transported him to jail in a police vehicle. When arrested, Agnew was peaceably conducting an auction of his own property as an isolated transaction. At the jail, he was charged with engaging in the business of auctioneering without a city permit. He was also charged with engaging in the business of electrical contracting without a city license.

Agnew was then subjected to the usual routine of photographing and finger-printing, after which he was released on two-hundred-dollar bail. Two days later, the charges were dismissed by the Compton municipal court. The electrical inspector, however, still refuses to issue electrical permits to Agnew for installations in Compton, unless he first secures a city electrical contracting license. The city and the inspector also threaten to arrest Agnew if he engages in that business in Compton without such license.

It is alleged that the acts complained of were committed wrongfully, maliciously, and while acting under color of the police power of the city. It is further alleged that these acts were committed as a part of a conspiracy among appellees to deprive appellant of numerous federal

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rights secured by the Constitution and federal statutes. 1

Actual damages in the sum of $34, 530, and exemplary and punitive damages in the sum of $25, 000 are claimed. An injunction is sought to restrain enforcement, as against Agnew, of the ordinance requiring an electrical contracting license, it being alleged that irreparable damage will otherwise ensue. A request is made for a three-judge court. Finally, Agnew asks that the judgment contain a declaration that the electrical contracting ordinance, as applied to him, is unconstitutional.

Diversity of citizenship not being claimed, appellant does not assert jurisdiction under 28 U.S.C.A. § 1332. Instead, he invokes for this purpose 28 U.S.C.A. §§ 1331 and 1343. 2

A complaint which is so drawn as to seek recovery, under the Constitution or laws of the United States, of more than three thousand dollars establishes (with two possible exceptions noted in the margin) district court jurisdiction under 28 U.S.C.A. § 1331. 3 A complaint which is so drawn as to seek redress for any wrong specified in 28 U.S.C.A. § 1343 establishes, with possibly the same exceptions, district court jurisdiction under the latter statute, regardless of the amount in controversy. With respect to neither statute is it necessary to allege diversity of citizenship.

It is possible that one or the other of the noted exceptions is applicable here. We prefer to assume, for present purposes, however, that neither of them applies, and that the allegations of the complaint adequately invoke jurisdiction.

This brings us as once to the question of whether the complaint states a cause of action. It does so only if, under the facts alleged, there has been a deprivation of some right accorded appellant under one or more of the statutory and constitutional provisions on which he relies. 4 We will discuss these privisions seriatim.

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Appellant first points to 18 U.S.C.A. 241 and 242. As these are criminal statutes, however, they provide no basis for this civil suit.

The statutes next referred to are 42 U.S.C.A. 1981 and 1982. 5 These are the first two sections of the Civil Rights Act, as now codified. The plain purpose of these statutes is to provide for equality of rights as between persons of different races. 6 The complaint under review does not allege that appellant was deprived of any right which, under similar circumstances, would have been accorded a person of a different race. It follows that no cause of action is stated under these sections.

We must next consider 42 U.S.C.A. 1983. 7 There is a line of cases holding that this section authorizes an action only for deprivation of due process but not for denial of equal protection. 8 However, we are unable to read such a limitation into this statute, since it refers, broadly, to the deprivation 'of any rights, privileges, or immunities secured by the Constitution and laws * * *.' In our view, this statute is not limited to due process violations. See Hague v. C.I.O., 307 U.S. 496, 526, 59 S.Ct. 954, 83 L.Ed. 1423.

Our task, then, is to determine whether any of the specific wrongs alleged to have been suffered by appellant deprived him of any of his rights, privileges, or immunities secured by the Constitution and federal laws. If so, 42 U.S.C.A. 1983 has been properly invoked, and a cause of action has been stated.

For purposes of discussion, we consider first those alleged wrongs having to do with appellant's arrest on the auctioneering charge, his transportation to jail, entering-prisoner routine, release on bail, and dismissal of the charges.

The city, along with the individual appellees is charged with these wrongs. A city, acting in its sovereign, as distinguished from its proprietary, capacity, however, cannot be held liable for such wrongs. 9

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With respect to the individual appellees, it is charged, in effect, that appellant was arrested without a warrant, and without probable cause; that the arrest was spiteful, malicious, wrongful, and oppressive; and that it was for the purpose of denying plaintiff his rights, privileges and immunities under the Constitution.

We learn from appellant's brief that he considers the arrest without a warrant wrongful, and without probable cause, because he was assertedly arrested for a misdemeanor not committed in the presence of the arresting officers. The misdemeanor with which he was charged was engaging in the business of auctioneering without a permit. Appellant contends that he did not commit such a misdemeanor in the presence of the arresting officers, or otherwise, since the auctioning of goods on his own premises as an isolated transaction is not covered by the licensing ordinance.

Were this the extent of the allegations, it would appear that, at most, appellant's arrest was wrongful because the arresting officers misunderstood the ordinance. This would not amount to a deprivation of basic civil rights. No one has a constitutional right to be free from a law officer's honest misunderstanding of the law or facts in making an arrest.

Here, however, it is alleged that the arrest was spiteful, malicious, wrongful, and oppressive. This precludes the assumption that the officers proceeded under an honest misunderstanding of the ordinance. With these additional allegations, it would appear that the complaint states a common-law action for false arrest and imprisonment. It does not, however, state a cause of action under the Civil Rights Act, absent allegations that the purpose of the arrest was to discriminate between persons or classes of persons. 10 Were the rule otherwise, every common-law action for false arrest would be cognizable in the federal courts under the Civil Rights Act.

But there is also to be considered the further allegation that such arrest was made for the purpose of denying plaintiff his rights, privileges, and immunities under the Constitution.

General allegations of this kind, when unsupported by the complaint, read as a whole, have consistently been rejected as insufficient. 11 The complaint under examination, considered as a whole, does not support these general allegations. Indeed, the facts alleged belie such a conclusion. The purpose of the arrest was to enforce a valid ordinance. The means employed were reasonable. No violence or unusual indignity resulted. There were no overtones of discrimination. Due process was accorded in the prompt filing of charges and release on bail. The charges were dropped without occasioning appellant additional personal inconvenience.

In what is said above, we do not mean to hold that a cause of action may never be stated where false arrest and imprisonment are involved. As before indicated, such a cause of action may be stated where it is alleged that the arrest was for the purpose of discriminating between persons or classes of persons. 12 There is here no such allegation.

Such a complaint has also been held sufficient where it was alleged that the trial was fraudulently conducted. McShane v. Moldovan, 6 Cir., 172 F.2d 1016.

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