441 F.2d 228 (2nd Cir. 1971), 490, Biehunik v. Felicetta

Docket Nº:490, 35543.
Citation:441 F.2d 228
Party Name:Joseph BIEHUNIK et al., Plaintiffs-Appellees, v. Frank N. FELICETTA, Commissioner of Buffalo Police Department, Thomas R.Blair, Deputy Commissioner of Buffalo Police Department, Howard R. Wheeler,Inspector, Buffalo Police Department, Charles DeVoe and Karl Muehlbauer, bothCaptains of theBuffalo Police Department, Defendants-Appellants.
Case Date:March 05, 1971
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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441 F.2d 228 (2nd Cir. 1971)

Joseph BIEHUNIK et al., Plaintiffs-Appellees,

v.

Frank N. FELICETTA, Commissioner of Buffalo Police Department, Thomas R.Blair, Deputy Commissioner of Buffalo Police Department, Howard R. Wheeler,Inspector, Buffalo Police Department, Charles DeVoe and Karl Muehlbauer, bothCaptains of theBuffalo Police Department, Defendants-Appellants.

No. 490, 35543.

United States Court of Appeals, Second Circuit.

March 5, 1971

Argued March 5, 1971.

Anthony Gregory, Asst. Corp. Counsel (Anthony Manguso, Corp. Counsel, Buffalo, N.Y., on the brief), for appellants.

William B. Mahoney, Buffalo, N.Y., for appellees.

Before LUMBARD, Chief Judge, KAUFMAN and ANDERSON, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

This appeal presents another aspect of the continuing problem of reconciling the state's powers as employer with the constitutional protections its employees enjoy as citizens. The Buffalo Police Commissioner, Frank Felicetta, commanded 62 city policemen, upon pain of discharge, to appear in a lineup for possible identification by civilians who allegedly had been assaulted by certain patrolmen. The District Court permanently enjoined the lineup. For the reasons set forth below, we reversed the judgment in open court following oral argument and ordered that the mandate issue forthwith.

I.

At approximately 8:30 in the evening of April 6, 1970, patrolling policemen close to 476 Sycamore Street came under gun fire, allegedly from a sniper positioned in the building. Reinforcements were quickly called in by radio to assist in suppressing the fire. Soon thereafter,

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between 10 and 25 officers entered the building to apprehend the suspected gunman. Complaints shortly received by the Commissioner charged that several members of this squad burst unannounced into occupied apartments of the building and without justification beat the inhabitants severely, requiring hospitalizations in several instances.

Commissioner Felicetta pursued his investigation of the complaints by assembling the names, 62 in number, of policemen who were on duty in the vicinity of 476 Sycamore Street on the night in question. Several days later, a few complainants were permitted to view photographs of the 62 officers. Apparently because of the age of the photographs, 1 the resulting identifications proved untrustworthy. After further consultation with the complainants and discussion with Buffalo's Corporation Counsel, the Commissioner on May 27 issued a series of orders to his subordinate officers directing the 62 policemen to report to the police Academy in their usual duty dress at 6:00 p.m. on June 3, 1970. The order concluded:

These arrangements are made for the purpose of staging a lineup so that identification can possibly be made in connection with an incident which occurred at 476 Sycamore Street on April 6, 1970. Because there is the possibility of resulting criminal prosecutions, you will notify each officer so ordered that he has the right to be represented by counsel and/or P.B.A. representative at this lineup. In addition, you will notify each officer that he is entitled to exercise all rights pursuant to the Miranda decision as set forth by the U.S. Supreme Court.

The policemen promptly instituted this civil rights action, alleging that the lineup would deprive them of various constitutional rights. 28 U.S.C. § 1343; 42 U.S.C. § 1983. The District Court thereupon issued an ex parte temporary restraining order shortly before noon on June 3 enjoining the lineup. 2 Commissioner Felicetta apparently agreed not to conduct the lineup during the suit's pendency, and on August 20 a permanent injunctive order was entered.

II.

As we perceive it, the principal ground for Judge Henderson's injunction is that the compulsory presence of the 62 officers at the Police Academy would have constituted a 'seizure' of their persons, unsupported by an arrest warrant or probable cause to arrest. It is conceded by the Commissioner that he had no reasonable basis for believing that all 62 officers had committed a crime or that probable cause to take

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them into custody existed. Nor do we question on this appeal that the compelled appearance at the lineup can be considered a 'seizure' of the officers...

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