Hanna v. Drobnick

• Decision Date: 23 April 1975
• Docket Number: No. 74-1948,74-1948
• Citation: 514 F.2d 393
• Parties: Russell W. HANNA et al., Plaintiffs-Appellants, v. Robert DROBNICK, Building Commissioner, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 393

514 F.2d 393

Russell W. HANNA et al., Plaintiffs-Appellants, v. Robert DROBNICK, Building Commissioner, et al., Defendants-Appellees.

No. 74-1948.

United States Court of Appeals Sixth Circuit.

April 23, 1975.

Ovid C. Lewis, University Heights, Ohio, William Fadel, Cleveland, Ohio, for plaintiffs-appellants.

Robert M. Debevec, Director of Law, City of Euclid, Euclid, Ohio, Henry B. Fischer, Asst. Dir. of Law City of Euclid, Euclid, Ohio, for defendants-appellees.

Before EDWARDS, PECK and ENGEL, Circuit Judges.

EDWARDS, Circuit Judge.

This is an appeal from a District Judge's order dismissing a class action claiming damages against the City of Euclid, Ohio, and a number of its employees for alleged unconstitutional searches of homes under a building inspection ordinance. The building inspection ordinance required anyone in the City of Euclid who desired to sell a house to apply for and secure a certificate from the Building Department. The ordinance allowed building inspectors to make an inspection of any home which they were thus notified was due to be sold. No provision was made for a search warrant in the event of refusal, and the ordinance contained a penalty clause which provided:

17115.10. Penalty. Whoever violates any provision of this Code or any rule or regulation promulgated thereunder or fails to comply therewith or with any written notice or written order issued thereunder, or whoever interferes with, obstructs, or hinders the Commissioner of Buildings, other city department heads or their representatives while attempting to make an inspection pursuant to this Code, shall be punished by a fine of any sum not to exceed One Thousand Dollars ($1,000.00) and six (6) months imprisonment for each offense. Each day such violation occurs or continues shall constitute a separate offense.

The pleadings and affidavits make clear that plaintiffs applied for, paid the fee for, and allowed the inspections concerned, but claim they did so "under duress." They now seek actual damages of $500 each and punitive damages of $9,500 to $10,000. Plaintiffs do not seek equitable relief since the Ohio courts have held the penalty section of the ordinance to be invalid and Euclid has amended it to provide for search warrants.

This action is brought against three sets of defendants: 1) seven housing inspectors of the City of Euclid, 2) Euclid's Building Commissioner and the Assistant Building Commissioner, and 3) the City of Euclid itself. Plaintiffs assert that the Federal District Court has jurisdiction of the case against the named individual defendants under 28 U.S.C. § 1343 (1970), and against the city itself under 28 U.S.C. § 1331 (1970).

On the filing of motions for summary judgment and accompanying affidavits by both plaintiffs and defendants, the District Judge found as uncontroverted facts the following:

1. Euclid Ordinance No. 127-1970 became effective on June 16, 1970;

2. Each and every inspection challenged herein was conducted pursuant to application and/or request of the homeowner or agent thereof, * * *

3. Section 17115.01 of (the Euclid city ordinance) was declared in conflict with the Fourth and Fourteenth Amendments to the United States Constitution on June 11, 1973, by the Common Pleas Court of Cuyahoga County in Hanna v. City of Euclid, Case No. 908, 928;

4. Structures and premises designated by the ordinance were inspected pursuant to the ordinance by duly authorized personnel of the city during the effective existence of the ordinance;

5. No inspections under authority of the ordinance were conducted subsequent to the judicial pronouncement of unconstitutionality;

6. The "forceable entry" charged by plaintiffs was induced by the claimed threat of criminal penalty imposed by the ordinance;

7. Inspections, as heretofore enumerated, consisted of testing water faucets, examining lighting fixtures and internal wiring, measuring certain rooms and areas, etc.;

8. Plaintiffs' pleadings and affidavits are significantly silent as to any acts of physical or verbal abuse practiced by any city employee. On the contrary, Defendants' Motion Exhibit B, a letter from plaintiff Russell Hanna to housing inspectors Kalan and Morlock states the following:

In reference to our conversation on Monday, October 8, 1971, I hereby confirm the statements made by me at that time.

First of all, we now have no intentions of selling our home. We have decided to make corrective improvements at our 1840 E. 223 Street residence. And should we, in the future, decided to sell . . . the Division of Housing will be contacted prior to listing our home with any Real Estate Agency. If I had been aware of this new housing inspection ordinance, I would have made arrangements this time in advance of attempting to sell our home.

Secondly, per my conversation with Mr. Kalan, we shall comply with all of the violations. A couple of corrective steps have already been taken, more will be taken when the weather permits and the rest will be accomplished this spring and summer when I can get the necessary help. I hope to have everything done by the end of June . . . or at least well under progress.

Thank you for the "tips" you gave me and should I need further help or advice I won't hesitate in calling you.

The District Judge's opinion also said:

It is significant to note at this point the absence of a single factual assertion (as opposed to conclusory allegation) in the pleadings or affidavits that any of the defendants acted in bad faith or outside the scope of authority conferred by the pertinent sections of the ordinance.

The fundamental underpinning of plaintiffs' case, of course, is Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). There the Supreme Court held unconstitutional a criminal conviction for a householder's refusing to allow the inspection of his home without procurement of a search warrant.

Appellees in this case earnestly urge us to distinguish Camara because the ordinance under which the defendants act in this instance was applicable to permits for the sale of homes and represented a consumer protection device. Appellees rely upon United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), and Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971).

In fact, no attack upon the present housing inspection ordinance is before us. We note, however, that the City of Euclid, in direct response to the opinion of an Ohio Court of Common Pleas dated June 11, 1973, (declaring the penalty section of the Euclid ordinance unconstitutional) reenacted its present penalty section by adding a provision which reads: "if the owner . . . refuses entrance to the . . . inspector . . ., no such entrance . . . shall be made unless a search warrant is properly obtained . . .."

This language seems to be drawn from the text of the Camara opinion, where Justice White, after noting certain emergency exceptions to the search warrant rule, said:

On the other hand, in the case of most routine area inspections, there is no compelling urgency to inspect at a particular time or on a particular day. Moreover, most citizens allow inspections of their property without a warrant. Thus, as a practical matter and in light of the Fourth Amendment's requirement that a warrant specify the property to be searched, it seems likely that warrants should normally be sought only after entry is refused unless there has been a citizen complaint or there is other satisfactory reason for securing immediate entry. Similarly, the requirement of a warrant procedure does not suggest any change in what seems to be the prevailing local policy, in most situations, of authorizing entry, but not entry by force, to inspect.

Camara v. Municipal Court, supra 387 U.S. at 539-40, 87 S.Ct. at 1736.

This language which describes what the Supreme Court (with apparent approval) called "the prevailing local policy, in most situations" actually portrays what happened in our instant case. This record presents no instance of a householder's refusal of inspection no instance of forcible entry, and no instance of arrest or prosecution.

On the contrary, the record shows that every inspection detailed by plaintiffs' affidavits was occasioned by the householder's application and reflects no instance of refusal of entry or demand for production of a search warrant.

In fact, the closest that plaintiffs come to alleging any Fourth Amendment violation is a claim of duress resulting from the possible invocation of the penalty clause if they refused admittance to the inspectors.

It is against this factual background then that we consider the District Court's jurisdiction over the three sets of defendants and their claimed defenses and immunities.

THE SEVEN BUILDING INSPECTORS

The seven building inspectors represent the easiest group of defendants to deal with under the facts of this case. Plainly, the inspectors are " persons" within the meaning of 42 U.S.C. § 1983 (1970), and the District Court had jurisdiction over plaintiffs' complaint and claim for money damages against them. 28 U.S.C. § 1343(3) (1970); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Scheuer v. Rhodes, 416 U.S. 232, 238, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

In the Scheuer case Chief Justice Burger, discussing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), said:

The Court noted that the "common law has never granted police officers an absolute and unqualified immunity," . . . (Pierson v. Ray, 386 U.S. 547 (1967)) at 555 (87 S.Ct. 1213, 18 L.Ed.2d 288), but that "the prevailing view in this country (is that) a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved," ibid.; the Court went on to observe that a "policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when...