300 F.2d 24 (9th Cir. 1962), 17141, Cohen v. Norris

Docket Nº:17141.
Citation:300 F.2d 24
Party Name:Michael COHEN, Appellant, v. Russell K. NORRIS et al., Appellees.
Case Date:January 30, 1962
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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300 F.2d 24 (9th Cir. 1962)

Michael COHEN, Appellant,

v.

Russell K. NORRIS et al., Appellees.

No. 17141.

United States Court of Appeals, Ninth Circuit.

January 30, 1962

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A. L. Wirin, and Fred Okrand, Los Angeles, Cal., for appellant.

Roger Arnebergh, City Atty., William B. Burge, Deputy City Atty., Los Angeles, Cal., for appellees.

Before CHAMBERS, BARNES, HAMLEY, HAMLIN, JERTBERG, MERRILL, KOELSCH, BROWNING and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge.

Invoking a provision of the Civil Rights Act, 42 U.S.C.A. § 1983, Michael Cohen brought this damage suit against five police officers of the city of Los Angeles. 1 Alleging that on several occasions he was subjected to an unreasonable search and seizure, plaintiff sought damages in the sum of $10,000 from each of the defendants. The named defendants are Russell K. Norris, Roger W. Otis, James P. Lang, John James and Edward E. Farqueson.

Responsive to a motion filed by defendants, the district court dismissed the action on the ground that the complaint failed to state a claim upon which relief could be granted. Cohen appealed.

Cohen alleges in his complaint that in January, 1960 the defendants, while acting under color of their authority as police officers, corruptly, wantonly and unlawfully conspired knowingly to deprive plaintiff of rights, privileges and immunities secured to him by the Constitution of the United States. He further alleged that, acting pursuant to that conspiracy and under color of their authority as police officers, the defendants committed one or more of four described overt acts, all taking place in late January or early February, 1960.

Each of these overt acts, it was alleged, was committed unlawfully, intentionally, maliciously and oppressively, with the knowledge on the part of the defendants that they were exceeding their authority as police officers. It was further alleged that each of these acts was committed with the knowledge on the part of the defendants that they were depriving plaintiff of his constitutional rights.

According to the complaint, each of the four overt acts took place in a public place in the city of Los Angeles, the first three on Sunset Boulevard and the fourth in a restaurant on Sunset Boulevard. The first such incident involved only defendants Norris and Lang. It was alleged that they seized and imprisoned plaintiff and without having a search warrant searched him and his automobile. It was alleged that plaintiff, although seized and searched, was not arrested, nor did Norris or Lang have a warrant for plaintiff's arrest or probable cause to arrest or imprison him. It was alleged that Norris and Lang filed no complaint or charge against plaintiff and did not bring him before a magistrate.

It was further alleged with reference to this incident that Norris and Lang conducted the search and seizure in the presence of others in order to humiliate plaintiff, and that he was humiliated. Additionally, it was alleged, while Norris was searching plaintiff he intentionally and in order to injure plaintiff struck him in his private parts.

The second overt act was alleged to involve James and Lang. As described in the complaint, the incident was generally the same as the described above except that the search was limited to plaintiff's person and the similar physical injury was alleged to have been inflicted by James. The same allegations were made concerning the lack of warrants

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and probable cause and failure to file a charge or bring plaintiff before a magistrate. It was not alleged, however, as in the case of the first overt act, that plaintiff 'was not arrested.'

The third and fourth overt acts were alleged to involve Farqueson and Otis. With respect to neither of these incidents was physical violence or a purpose to humiliate or actual humiliation alleged. It was alleged in connection with the fourth overt act, but not the third, that the search and seizure was conducted in the presence of others. The search alleged with respect to the third incident involved both the person of plaintiff and his automobile. The search alleged with regard to the fourth incident, however, was limited to plaintiff's person.

It was not alleged concerning either the third or fourth overt act that plaintiff 'was not arrested.' Concerning the third incident there were the same allegations concerning the lack of warrants and probable cause and failure to file a charge or bring plaintiff before a magistrate as were made with regard to the first overt act. Concerning the fourth overt act, however, it was not alleged that Farqueson and Otis did not have a search warrant or a warrant for plaintiff's arrest, nor was it alleged that these defendants did not have probable cause to arrest or imprison plaintiff. Likewise, there was no allegation to the effect that Farqueson and Otis had not filed a charge against plaintiff or brought him before a magistrate.

The district court held that the complaint failed to state a claim upon which relief could be granted under 42 U.S.C.A. § 1983 because '* * * there are no allegations that the purpose of the acts complained of was to discriminate between persons or classes of persons.' In support of its view that such allegations were necessary in order to state a claim under § 1983, the court cited Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Hoffman v. Halden, 9 Cir., 268 F.2d 280; Walker v. Bank of America, 9 Cir., 268 F.2d 16; and Agnew v. City of Compton, 9 Cir., 239 F.2d 226.

Appellant argues that the cited cases do not stand for the stated proposition, and that assuming they do, the law is now otherwise in view of the more recent decision in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, decided February 20, 1961.

In Snowden the ruling that there must be present an element of intentional or purposeful discrimination in order to state a claim under §§ 1983 or 1985(3) (then 8 U.S.C.A. §§ 43, 47(3)) was made with reference to the equal protection clause of the Fourteenth Amendment. See Snowden v. Hughes, Supra, 321 U.S. at 7-10, 64 S.Ct. at 400-402. The constitutional right invoked by Cohen in the instant case is the due process clause of that amendment. He claims that he was subjected to an unreasonable search and seizure. The guarantee against unreasonable searches and seizures contained in the Fourth Amendment has been made applicable to the states by reason of the due process clause of the Fourteenth Amendment. Monroe v. Pape, supra, 365 U.S. at 171, 81 S.Ct. at 476.

It is true that appellant has alleged a conspiracy, which is not an essential allegation under 42 U.S.C.A. § 1983, but is an essential allegation under 42 U.S.C.A. § 1985(3), part of which is quoted in the margin. 2 It is likewise true that an essential ingredient of a claim under § 1985(3) is that a defendant have a purpose of depriving another of the equal protection of the laws or of equal privileges and immunities under the laws.

But it is permissible to state a civil cause of action for conspiracy, based on § 1983. Hoffman v. Halden, supra, 268 F.2d at 293. Hence the fact that conspiracy is here alleged does not mean that the plaintiff is invoking § 1985(3).

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Cohen's complaint makes no reference to § 1985 and, as before noted, the substance of his claim involves the due process clause, which is not embraced within § 1985(3).

We conclude that Snowden v. Hughes affords no support for the view that to state a claim under the due process clause, one must allege that the purpose of the acts complained of was to discriminate between persons or classes of persons.

In Agnew v. City of Compton, Supra, 239 F.2d at 231, this court held that a complaint in which an unlawful arrest was alleged did not state a claim under § 1983 'absent allegations that the purpose of the arrest was to discriminate between persons or classes of persons.'

This holding in Agnew was made with specific reference to an alleged unlawful arrest, whereas the basic allegation in the instant case is unreasonable search and seizure. An asserted unlawful search and seizure was involved in Agnew, however, and the quoted holding must have been intended to apply thereto, else the judgment of dismissal could not have been affirmed. 3

In Walker v. Bank of America National Trust & Savings Ass'n, 9 Cir., 268 F.2d 16, 24-25, we stated, citing the Agnew case, that in order to state a cause of action under § 1983 '* * * it is necessary to allege facts showing that the purpose of the defendants in committing the acts complained of was to discriminate between persons or classes of persons.' While Walker did not involve an alleged unreasonable search and seizure, the quoted language was apparently intended to apply to any claim which might be brought under § 1983. This statement, however, was not necessary to the decision in Walker since it had already been held (at p. 24) that the complaint contained no sufficient allegation that the act was committed under color of state law. Such an allegation is necessary to state a claim under § 1983.

In Hoffman v. Halden, supra, 268 F.2d at 290, it was stated that in complaints invoking §§ 1983 and 1985 '* * * it must be alleged and proved that the purpose of the acts complained of was to discriminate between persons or classes of persons.' The Agnew case and a concurring opinion in Cobb v. City of Malden, 1 Cir., 202 F.2d 701, 707 were cited in support of this holding. While Hoffman was not concerned with an asserted unreasonable search and seizure, the ruling announced was broad enough to include such a claim.

It follows from what has been said above that the rule stated in...

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