529 F.2d 70 (2nd Cir. 1975), 373, Fine v. City of New York

Docket Nº:373, Docket 75--7021.
Citation:529 F.2d 70
Party Name:Robert J. FINE, Plaintiff-Appellant, v. The CITY OF NEW YORK et al., Defendants-Appellees, Anthony Saladino et al., Defendants.
Case Date:December 31, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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529 F.2d 70 (2nd Cir. 1975)

Robert J. FINE, Plaintiff-Appellant,


The CITY OF NEW YORK et al., Defendants-Appellees,

Anthony Saladino et al., Defendants.

No. 373, Docket 75--7021.

United States Court of Appeals, Second Circuit

December 31, 1975

Argued Dec. 8, 1975.

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Dan Brecher, New York City, for plaintiff-appellant.

Michael A. Ambrosio, New York City (W. Bernard Richland, Corp. Counsel, New York City, on the brief, L. Kevin Sheridan, New York City, of counsel), for defendant-appellee City of New York.

Harold C. Harrison, Forest Hills, N.Y., for defendant-appellee Kornberg.

Barbara Shore Resnicoff, Asst. Atty. Gen. of N.Y. (Louis J. Lefkowitz, Atty. Gen. of N.Y., and Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for defendants-appellees Gaudelli and Kahn.

Before KAUFMAN, Chief Judge, and SMITH and MESKILL, Circuit Judges.


In the last half-century, discussions of the effect of the exclusionary rule in criminal prosecutions have repeatedly quoted Cardozo's dictum, 'the criminal is to go free because the constable has blundered.' People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926). In this civil action for damages we are called upon to decide who may be held to pay for such blunders. Among the questions presented are whether a municipality may be held vicariously liable for the wrongful acts of its employees, either under the Civil Rights Act, 42 U.S.C. § 1981 et seq., or on a claim founded directly upon the Fourteenth Amendment. Also to be considered are the more familiar parameters to be observed in imposing § 1983 liability upon public prosecutors and private attorneys for alleged violations of federal constitutional rights.


A brief summary of the facts alleged in Fine's complaint in the court below will provide a fuller understanding of the controversy. On March 5, 1972, sixteen-year-old David Faulkner was arrested in a Queens, N.Y. bar for attempting to sell a gun. He told the police that the weapon belonged to Robert Fine, a taxicab driver with whom he claimed to have been living in a homosexual relationship. Faulkner offered to show the officers Fine's apartment and joined several of them as they conducted a warrantless entry and search of those premises. On the following day, March 6, Faulkner, accompanied by his attorney Marvyn Kornberg and Detectives Robert Radtke and Michael Sassaman, returned to the Fine apartment. Initially, they

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approached the building superintendent seeking entrance to the apartment. Fine claims that Det. Radtke stated to the superintendent 'We are the police' and Kornberg, though present, failed to identify himself as an attorney. The superintendent, however, was either unwilling or unable to grant them access. Undaunted, young Faulkner climbed a fire escape at the rear of the building, entered through a window, and admitted the detectives and Kornberg to the apartment, where they remained for more than one hour. 1

In the course of their visits the officers seized gambling records, bullets, and photographs of nude males (including one of Faulkner). Fine also alleged that the police seized $3800 in cash, a valuable coin collection, 20,000 Colombian pesos (worth, at the time, roughly $1000), a phonograph, jewelry, safe deposit keys, and other items of value in the apartment. In addition, he says, they destroyed his furniture, impounded his two German Shepherds, and ripped apart his clothing.

Fine was arrested, while driving his taxicab, by officers of the New York City Police Department on March 7, 1972. He was charged in Queens County Supreme Court with sodomy, endangering the welfare of a child, promoting gambling, possession of gambling records in the second degree, and possession of weapons as a misdemeanor. Assistant District Attorney Herbert Kahn presented evidence of these offenses to a grand jury, including the items admittedly seized from Fine's apartment.

Fine moved in the Queens County criminal proceedings to suppress the evidence, seized during his absence from the apartment and without benefit of either arrest or search warrants. After a suppression hearing, State Supreme Court Justice Brennan granted the motion on January 17, 1974, and ordered suppression of all items taken from the apartment. Each of the charges pending against Fine was subsequently dismissed.

In the course of the suppression hearing Fine made several charges of corruption. Among them were his claims that the police had broken into his home and stolen or destroyed valuable property. He also stated that money had been extorted from him (by Frank Klein, his own attorney, and Kornberg, among others) to secure the return of his impounded taxicab and to induce Faulkner's mother to agree to a dismissal of the criminal charges against him. Assistant District Attorney Albert Gaudelli, assigned to investigate these charges, was presenting evidence to the grand jury relating to them when superseded by Special State Prosecutor Maurice Nadjari's probe into the matter.

Eventually, Fine commenced the instant action in the Southern District of New York seeking more than $5 million in damages pursuant to the Civil Rights Act, 42 U.S.C. § 1981 et seq., and the Fourteenth Amendment. 2 Named as defendants, though not parties to this appeal, were David Faulkner, his mother Dolores, and the police officers who had allegedly entered and rampaged through Fine's apartment. 3 Fine's complaint also named Assistant District Attorneys Kahn and Gaudelli, the City of New York, and attorneys Klein and Kornberg.

On November 22, 1974, Judge Brieant granted motions to dismiss the complaint made pursuant to Fed.R.Civ.P. 12(b)(6),

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for failure to state a claim against defendants Kahn, Gaudelli, Klein and Kornberg. He also dismissed, sua sponte, the complaint against the City of New York. From these dismissals Fine appeals. 4


Section 1983 requires the fulfillment of certain conditions before a plaintiff may prevail.

First, the plaintiff must prove that the defendant has deprived him of a right secured by the 'Constitution and laws' of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.' This second element requires that the plaintiff show that the defendant acted 'under color of law.'

Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Moreover, the party against whom recovery is sought must be a 'person' within the meaning of the Civil Rights Act, 5 and not be cloaked with immunity.


Fine recited in his civil rights complaint against the prosecutors that Kahn had presented evidence, later suppressed, to a grand jury. Gaudelli, he alleged, presented other evidence to a subsequent grand jury. He also stated, in most conclusory terms, that they had wrongfully withheld his property, suborned perjury, tampered with and coerced witnesses, hindered criminal prosecution, and committed other wrongful acts. No details were offered, however, in support of these claims. Complaints relying upon 42 U.S.C. § 1981 et seq. are plainly insufficient unless they contain at least some allegations of facts indicating a deprivation of civil rights. Powell v. Jarvis, 460 F.2d 551, 553 (2d Cir. 1970). See also Birnbaum v. Trussell, 347 F.2d 86, 89--90 (2d Cir. 1965); Powell v. Workmen's Compensation Bd., 327 F.2d 131, 136 (2d Cir. 1964). The complaint against the assistant district attorneys, therefore, must fall, for their presentation...

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