753 F.2d 88 (D.C. Cir. 1985), 83-1444, McSurely v. McClellan

Docket Nº:83-1444.
Citation:753 F.2d 88
Party Name:Alan McSURELY and Margaret McSurely v. John K. McCLELLAN, et al., Appellants, Thomas Ratliff, Individually and as sometime Commonwealth Attorney For Pike County Kentucky.
Case Date:January 18, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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753 F.2d 88 (D.C. Cir. 1985)

Alan McSURELY and Margaret McSurely


John K. McCLELLAN, et al., Appellants,

Thomas Ratliff, Individually and as sometime Commonwealth

Attorney For Pike County Kentucky.

No. 83-1444.

United States Court of Appeals, District of Columbia Circuit

January 18, 1985

Argued May 9, 1984.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 516-69).

Marc Johnston, Atty. U.S. Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., U.S. Dept. of Justice, Joseph E. diGenova, U.S. Atty. and Barbara L. Herwig, Atty., U.S. Dept. of Justice, Washington, D.C., were on brief, for appellants.

Morton Stavis, Hoboken, N.J., with whom Randolph M. Scott-McLaughlin, Charles N. Mason, Jr., Washington, D.C., was on brief, for appellees, Alan and Margaret McSurely.

Philip A. Lacovara, Thomas D. Goldberg and John D. Echeverria, Washington, D.C., were on brief, for appellee, Thomas Ratliff.

Before MIKVA, GINSBURG and STARR, Circuit Judges.

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Opinion for the Court PER CURIAM.



On the evening of August 11, 1967, local law enforcement officials of Pike County, Kentucky, entered Alan and Margaret McSurely's home and seized a huge quantity of books, papers, and other personal effects. The officials arrested the McSurelys and charged them with violation of Kentucky's anti-sedition statute. Thus began the McSurelys' seventeen-year odyssey through the courts. They have been involved in four lawsuits here and in the Sixth Circuit, all of which arose from the events of August 11. This court alone has rendered five decisions involving the McSurelys and has issued nine separate opinions filling nearly one hundred and fifty pages of the Federal Reporter. Today we seek to end another episode in the McSurelys' quest for judicial relief and compensation stemming from the events that began on that night seventeen years ago.

At issue in this appeal are the McSurelys' claims for damages against three federal government officials--a Senator and two members of his staff--for alleged violations of certain of the McSurelys' constitutional and common law rights. Those officials are Senator John McClellan, former chairman of the Permanent Subcommittee on Investigations of the Senate Government Operations Committee (the Subcommittee), Jerome Adlerman, former general counsel of the Subcommittee, and John Brick, a former Subcommittee investigator. (All three defendants died while this case was pending. Although parties were substituted when deaths occurred, for convenience we will refer to the three officials collectively as the Senate defendants and discuss them as if they were still the named defendants here.) The Senate defendants became embroiled in this controversy when John Brick went to Kentucky in October 1967 to inspect the material seized from the McSurelys' home. Without the McSurelys' knowledge or consent, Brick looked through the material and took back to Washington copies of over two hundred items, including papers of a highly personal nature.

The McSurelys also named Thomas Ratliff as a defendant in this suit. Ratliff was the Kentucky official who gave Brick access to the McSurelys' papers. Because of a recent settlement agreement between him and the McSurelys, however, Ratliff has been removed as a party defendant on appeal.

The jury returned verdicts against each Senate defendant for violating the McSurelys' first and fourth amendment rights under the United States Constitution and their right to privacy under the common law. The Senate defendants appeal from those verdicts. The allegedly unlawful conduct that underlay the verdicts against all three defendants was Brick's inspection and transportation of the documents back to Washington, and the manner in which he ultimately returned personal papers to the McSurelys. The McSurelys alleged that Senator McClellan and General Counsel Adlerman entered into a conspiracy with Brick to violate the McSurelys' rights and that, as coconspirators, they are liable for Brick's conduct.

Although the McSurelys' factual allegations are fairly straightforward, the legal issues surrounding their claims are extremely complex, as this opinion and prior decisions of this court indicate. For the reasons stated below, we affirm the verdict against the investigator, John Brick, for violation of the McSurelys' right to privacy under the common law. We reverse, however, all of the other verdicts.


We have narrated the factual background of this case on numerous occasions. The appendix to this opinion sets forth a list and brief description of the federal court decisions that have affected the

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McSurelys over the last seventeen years. We summarize that history only briefly here.

In 1967, Alan and Margaret McSurely were field organizers in Pike County, Kentucky, for a civil rights organization known as the Southern Conference Educational Fund, Inc. On August 11 of that year (unless otherwise stated, all dates refer to 1967), county officials obtained an arrest warrant charging Alan McSurely with sedition against the state under Ky.Rev.Stat. Sec. 432.040. They also obtained a warrant to search the McSurelys' home for "seditious matter." Pursuant to that warrant, over a dozen men, many of them armed, came to the McSurelys' home and seized all of their papers, several hundred books, and some of their clothing. Both Alan and Margaret McSurely were arrested and charged with sedition.

The Pike County prosecutor at the time, Thomas Ratliff, helped to organize the search and arrests. Ratliff had responsibility for prosecuting the McSurelys under the sedition statute. His involvement in this case is chronicled in more detail in McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982). The day after the search, Ratliff stated publicly that he intended to make the McSurelys' materials available to congressional committees.

Five days after their arrest, and while they were still in jail, the McSurelys filed suit in federal court to have the Kentucky statute declared unconstitutional and to enjoin the threatened prosecution. Because the suit sought to enjoin enforcement of a state statute, a three-judge district court was convened to consider the McSurelys' claims. See Act of June 25, 1948, ch. 646, Sec. 1, 62 Stat. 968 (repealed 1976). At a hearing on September 1, the McSurelys' attorney asked the court either to seal the seized material or to place it in the exclusive custody of the U.S. Marshal. Plaintiffs' Exhibit No. 44, reprinted in Joint Appendix (J.A.) 1863. Following this request, the attorneys for both sides met with the judges in chambers. There was no record entry as to what took place in chambers, except as was indicated ten days later in a court order. In that order, the court stated, in relevant part, that "[t]he parties having agreed thereto ... the material, literature and all objects seized herein shall be kept in the custody of ... Thomas B. Ratliff, and that same shall be made available to the United States Marshal ...." Plaintiffs' Exhibit No. 7, reprinted in J.A. 1782-83. The court further ordered the U.S. Marshal and Ratliff to make an inventory of the material, and ordered Ratliff to return "such personal articles and property as he does not deem material to the investigation and prosecution herein." Id. at 1783. Ratliff prepared the inventory, but never returned any of the property.

Three days later, on September 14, the three-judge court, one judge dissenting, issued an order declaring the Kentucky sedition statute unconstitutional. The final paragraph of that order directed Ratliff to retain custody of the seized material pending appeal of the judgment. That paragraph, referred to throughout these proceedings as the "safekeeping order," stated:

It is further ordered that all books, papers, documents and other material now in the custody of the Commonwealth Attorney of Pike County, Ratliff, reflected by the Inventory filed in this action continue to be held by him in safe keeping until final disposition of this case by appeal or otherwise.

Plaintiffs' Exhibit No. 9, reprinted in J.A. 1796. One month later, the court issued an opinion setting forth its rationale for declaring the sedition statute unconstitutional. The opinion made no mention of the "safekeeping order." McSurely v. Ratliff, 282 F.Supp. 848 (E.D.Ky.1967).

The Senate defendants first became involved with the McSurely material sometime in September, over a month after the McSurelys' home was searched. The Subcommittee was conducting a wide-ranging investigation into civil and criminal disorders throughout the country. After being notified by a Washington attorney that Ratliff had information regarding efforts

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to organize young people "to engage in violence and demonstrations," Trial Transcript (Tr.) of Dec. 2, 1982, at 79, reprinted in J.A. 825, Lavern Duffy, a Subcommittee staff member, contacted Ratliff by telephone on September 25. During that conversation, Duffy (who is not a party to this suit) set up an appointment to come to Kentucky to inspect the documents. The next day, Duffy wrote a memorandum to defendant Adlerman stating that Ratliff "would arrange to have the[ ] records turned over to the subcommittee upon receipt of a subpoena ...." Plaintiffs' Exhibit No. 35, reprinted in J.A. 1843.

On October 8, pursuant to directions from Adlerman, defendant Brick, a Subcommittee investigator, went to Kentucky in place of Duffy. Plaintiffs' Exhibit No. 36, reprinted in J.A. 1844. Brick inspected the material being held in Ratliff's custody at the Pike County courthouse and took copies of 234...

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