579 F.2d 152 (2nd Cir. 1978), 317, Turpin v. Mailet

Docket Nº:317, Docket 77-7345.
Citation:579 F.2d 152
Party Name:Thomas TURPIN, Plaintiff-Appellant, v. Joseph MAILET and John Doe, Individually and as police officers of the Police Department of the City of West Haven, and City of West Haven, Defendants, and City of West Haven, Defendant-Appellee.
Case Date:June 05, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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579 F.2d 152 (2nd Cir. 1978)

Thomas TURPIN, Plaintiff-Appellant,


Joseph MAILET and John Doe, Individually and as police

officers of the Police Department of the City of

West Haven, and City of West Haven, Defendants,


City of West Haven, Defendant-Appellee.

No. 317, Docket 77-7345.

United States Court of Appeals, Second Circuit

June 5, 1978

Argued Jan. 27, 1978.

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Michael Avery, Boston, Mass. (John R. Williams and Williams, Wynn & Wise, New Haven, Conn., of counsel), for plaintiff-appellant.

Paul A. Scholder, New Haven, Conn., for defendant-appellee.



With the ratification of the fourteenth amendment in 1868, Congress and the judiciary embarked on a century-long journey to transform the mere words of the amendment into an instrument capable of protecting those injured by illegal state action. The legislative branch moved first and with dispatch in enacting the Civil Rights Bill of 1871, whose overarching provisions charted broad expanses of the new constitutional territory. Courts, on the other hand, through the characteristically measured process that marks the restrained exercise of judicial power, proceeded slowly, yet deliberately, to effectuate the congressional and constitutional design. We are asked on this appeal to move one step further in fulfilling the promise of the fourteenth amendment by recognizing that, in certain instances, municipalities may be held liable in damages for actions taken in derogation of that amendment. Cognizant of our responsibility to develop remedies implementing fundamental constitutional provisions, we proceed with our task.


In order to understand the complex legal issues presented by this case, its relatively simple facts must be traversed initially. 1 During the early evening hours of September 18, 1971, two teenage girls were involved in an altercation when one allegedly began to choke the other. Denise Stiles managed to free herself from her friend's grasp, and ran home to tell her mother, Jean Stiles Pasano, about the incident. Mrs. Pasano immediately reported her daughter's story to the West Haven police force, and two of its officers, Christopher Columbus Skeens and Robert J. Weber, began their search for the girl's alleged "attacker," Nancy Guckin. Near the corner of Noble Street and Washington Avenue in West Haven, Patrolman Weber spotted a group of teenagers, and learned that one of their number was Nancy.

After identifying the girl, Weber began to escort her to the patrol car. When she screamed for help, the assembled youngsters shouted their protests at Weber, and fifteen-year-old Thomas Turpin, one of the onlookers, attempted to come to her aid. As Turpin approached the car, Officer Skeens grabbed him from behind and, according to Turpin, clubbed him on the back of his skull with a nightstick. The resulting laceration was treated at a nearby hospital and required six stitches.

On November 7, 1972, Turpin filed suit against Skeens in federal court, claiming that the officer had used excessive force in restraining him, and thereby violated his civil rights under 42 U.S.C. § 1983. During the course of the trial, Officer Skeens contended that he and Weber merely threw Turpin aside, and that the youngster had sustained his head injury by striking the left rear side of the police car. Judge Newman, who tried the case without a jury, credited Turpin's version of the incident, which was corroborated by the testimony of six eyewitnesses. He awarded the youngster

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$3,500 in damages, a sum ultimately paid by the insurance carrier for the City of West Haven. The decision was publicized in the community and discussed by members of the West Haven Police Department. Turpin claims that this resulted in widespread animosity generated against him among the officers.

Spurred by the general interest in the case, the Board of Police Commissioners met to discuss Judge Newman's decision. Ultimately, the Board decided against disciplining Skeens, in spite of the court's determination that he had used excessive force. Indeed, Skeens was subsequently promoted. Turpin alleges that this action by the Board served to encourage members of the West Haven Police Department to believe that they could violate his civil rights with impunity.

This attitude, Turpin suggests, triggered the incident which lies at the heart of the instant lawsuit. On May 6, 1975, less than three months after Judge Newman's decision, Turpin was leaving Pickering's Store on the corner of Campbell Avenue and Noble Street in West Haven at about seven-thirty in the evening when he saw his friend, Walter Edwards, and decided to join him. The two companions, Turpin asserts, were standing there peacefully when Joseph Mailet, a West Haven police officer, recognized Turpin. Mailet, allegedly acting out of malice stemming from Turpin's successful suit against Skeens, arrested Turpin and Edwards for disorderly conduct. Officer Leslie Sweetman, who was parked in his squad car nearby, assisted Mailet with the arrest. After Turpin was processed and detained at the offices of the West Haven Police Department, he was released on a nonsurety bond. One month later, on June 12, 1975, a Nolle prosequi was filed by an assistant prosecuting attorney, thus terminating the proceedings against Turpin.

Turpin, claiming that the arrest violated his civil rights, commenced the instant action against the officers and the City of West Haven on July 25, 1975. Insofar as the two police officers were charged with wrongdoing, Turpin's suit was based on the provisions of 42 U.S.C. §§ 1983 and 1988, with federal jurisdiction asserted under 28 U.S.C. § 1343(3). The action against the City, on the other hand, was brought directly pursuant to the provisions of the fourteenth amendment, with jurisdiction grounded in 28 U.S.C. § 1331 the general federal question provision. Pendent claims against the City based on Connecticut law were also asserted. 2 Turpin sought a compensatory recovery of $100,000, and an additional $100,000 in punitive damages.

The City moved for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, claiming that Turpin failed to state a claim against it. Judge Newman adopted the findings of Magistrate Arthur H. Latimer on this issue. The Judge held that, under the circumstances presented, a right of action could not be implied directly from the fourteenth amendment. He also dismissed the pendent state claims. Turpin, seeking an instant appeal, then moved successfully for the entry of a final judgment on the claims against the City under Rule 54(b) of the Federal Rules of Civil Procedure, the action against the individual defendants still continuing. In granting Turpin's motion, Judge Newman noted that over 30 lawsuits in the District of Connecticut presented claims similar to that pressed against the City of West Haven. This appeal was, accordingly, allowed. 3


Turpin's decision to proceed against the City directly under the fourteenth amendment,

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invoking the jurisdictional provisions of 28 U.S.C. § 1331, results, of course, from judicial interpretations of 42 U.S.C. § 1983, the modern day codification of Section 1 of the Civil Rights Act of 1871. In 1961, the Supreme Court decided that § 1983 could not be used to impose liability in damages upon municipalities. Monroe v. Pape, 365 U.S. 167, 187-91, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). After an analysis of the provision's legislative history, Justice Douglas wrote that Congress could not have intended to include municipalities among the class of "persons" capable of being sued under the statute. 4 Subsequently, the rationale of Monroe was logically extended to preclude § 1983 injunctive actions against municipalities. 5 City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Accordingly, individuals seeking relief against municipalities for the deprivation of their civil rights have often turned directly to the fourteenth amendment. They have relied on the principle expounded in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), that, even in the absence of a statutory right of action, courts have the power to fashion common law remedies for constitutional wrongs. 6

The facts in Bivens are enlightening. Six agents of the Federal Bureau of Narcotics were alleged to have invaded Webster Bivens's apartment without the authority of either a search or arrest warrant. If the charges were true, the conduct of the agents violated the fourth amendment. No remedy, however, was apparently available to Bivens for this violation of his constitutional rights. Since only employees of the federal government were involved, 42 U.S.C. § 1983, which, by its terms, applies only to "state action," was rendered inapplicable. And the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, which would otherwise allow suits against the United States, then exempted all intentional torts. 7 In sum, if Bivens was to be accorded any federal relief, his only recourse would be a damage action under the fourth amendment. Justice Brennan gave short shrift to the argument that petitioner should be relegated to his state remedies, noting,

"(W)here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell v. Hood, 327 U.S. at 684, 66 S.Ct. 773.

Bivens, supra, 403 U.S. at 392, 91 S.Ct. at 2002. He went on to stress that damages have historically been regarded as the ordinary remedy for an invasion of personal interests in liberty.

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