Ames v. Vavreck

• Decision Date: 23 February 1973
• Docket Number: No. 4-71 Civ. 269.,4-71 Civ. 269.
• Citation: 356 F. Supp. 931
• Parties: Phyllis Eileen AMES et al., Plaintiffs, v. Edward C. VAVRECK, Esq., Individually and as Assistant City Attorney of the City of Minneapolis, et al., Defendants.
• Court: U.S. District Court — District of Minnesota

356 F. Supp. 931

Phyllis Eileen AMES et al., Plaintiffs, v. Edward C. VAVRECK, Esq., Individually and as Assistant City Attorney of the City of Minneapolis, et al., Defendants.

No. 4-71 Civ. 269.

United States District Court, D. Minnesota, Fourth Division.

February 23, 1973.

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William I. Kampf and John C. Thomas, St. Paul Minn., Duane W. Krohnke, Minneapolis, Minn., for plaintiffs.

Keith M. Stidd, Minneapolis City Atty. by Raymond H. Hegna, Asst. City Atty., for defendants.

NEVILLE, District Judge.

This case arose from the prosecution of approximately 20 plaintiffs following their arrests by Minneapolis City Police on the evening of May 9, 1970 at or near the private residence of plaintiff Lykken. The impetus for the arrests apparently was provided by a handbill distributed on the University of Minnesota campus which advertised a gathering at the Lykken home in Minneapolis to protest the construction of the Anti-Ballistic Missile system in North Dakota. The handbill contained the words "CASH BAR" and was noticed by a member of the Minneapolis Police Department who brought it to the attention of defendant Vavreck, an assistant city attorney for the City of Minneapolis. The police apparently were concerned about the possibility of liquor being sold without a license. Vavreck is said to have advised the police that the handbill would not provide the probable cause prerequisite to obtaining a search warrant for the Lykken residence. As an alternative to obtaining a search warrant, an undercover police officer entered the Lykken house for observation purposes. After having allegedly observed an unauthorized sale of liquor, defendant police officers Haertel and Searles notified defendant Tidgwell, who with a detachment of other police officers, entered the Lykken resident and arrested Lykken on charges of operating a disorderly house and selling liquor without a license in violation of Minneapolis City Ordinances 870.140 and 851.010. The other plaintiffs in this case also were arrested for participation at a disorderly house in violation of Minneapolis City Ordinance 870.140. The entire Lykken house was searched without warrant and numerous documents were seized. Plaintiffs were then taken to jail, searched, booked, fingerprinted and finally released after several hours in custody. Ultimately all criminal charges against all the plaintiffs here were terminated in Minneapolis Municipal Court with no convictions.

Plaintiffs have instituted suit here with jurisdiction premised on 28 U.S.C. § 1343(3) and venue based on 28 U.S.C. § 1391(b). They allege that the city prosecutor and defendant police officers jointly and separately acted outside the scope of their official capacities and wilfully and knowingly acted with specific intent to deprive plaintiffs of rights secured by the First, Fourth, Fifth, Ninth and Fourteenth Amendment—freedom of speech, freedom of peaceable assembly and association, freedom from illegal search and seizure and unlawful arrest and freedom from illegal detention, physical abuse and intimidation. It is therefore urged that defendants' conduct has given rise to causes of action under 42 U.S.C. § 1983¹ and 42 U.S.C. § 1985(3).² Plaintiffs concede in briefs that their allegations do not state a claim under 42 U.S.C. § 1981 or 18 U.S. C. § 245 as originally claimed in the complaint. Defendants have answered denying that plaintiffs have stated a claim for which relief can be granted and alleging that the searches, arrests and prosecutions were carried out in good faith and for probable cause; that defendant Vavreck is immune from liability because of his official capacity as a prosecutor; that defendants Prentice and Lutz are immune from liability due to their supervisory capacity in the police department; and that the legality of the arrest of plaintiff Lykken, apparently the only defendant who stood trial, is res judicata in this case because of rulings in Minneapolis Municipal Court on the ordinance violation charges.³

Previous orders have been entered by this court allowing amendment of the complaint to include additional defendants (June 2, 1972) and partially quashing a subpoena for the production of documents (July 18, 1972), affirmed (8th Cir. Dec. 26, 1972). The case is presently before the court on defendants' motion for dismissal or for summary judgment. Summary judgment can be granted only if there are no questions of fact to be determined. Rule 56 Fed.R.Civ.P. Additionally, the Eighth Circuit cautions that such relief is a harsh remedy and should be granted only very sparingly. See, e. g., Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972). Likewise a complaint should not be dismissed at this juncture in the proceedings unless all of plaintiffs' allegations under any construction fail to state a claim for which relief can be granted. Lucarell v. McNair, 453 F.2d 836 (6th Cir. 1972); Madison v. Purdy, 410 F.2d 99 (5th Cir. 1969); Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962); 2 Moore's Fed.Prac. (2d ed. ¶ 8.13 at 1653).

The issues presented are 1) whether any defendants are immune from prosecution because of their official status, 2) whether plaintiffs' allegations fail to state a claim for which relief can be granted under 42 U.S.C. § 1983 or 42 U. S.C. § 1985, 3) whether the municipal court rulings have res judicata effect as to plaintiff Lykken's claims and 4) whether the statute of limitations precludes the addition of defendants to those originally named.

Immunity

(a) Of the Prosecutor

The question of whether a prosecutor will be held liable for damages for his acts depends on whether his conduct falls within the scope of his jurisdiction. Moore v. Buck, 443 F.2d 25 (3d Cir. 1971); Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966); Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955). See Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S. Ct. 747, 30 L.Ed.2d 749 (1972); Arensman v. Brown, 430 F.2d 190 (7th Cir. 1970); Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970), cert. denied 400 U. S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Marlowe v. Coakley, 404 F.2d 70 (9th Cir.), cert. denied, 395 U.S. 947, 89 S.Ct. 2017, 23 L.Ed.2d 465 (1969); Savage v. United States, 322 F.Supp. 33 (D.Minn.1971), aff'd 450 F.2d 449 (8th Cir. 1971), cert. denied 405 U.S. 1043, 92 S.Ct. 1327, 31 L.Ed.2d 585, reh. denied 406 U.S. 951, 92 S.Ct. 2048, 32 L. Ed.2d 339 (1972); Balistrieri v. Warren, 314 F.Supp. 824 (W.D.Wis.1970). The issue before the court is not whether prosecutors are immune without reservation from any suit under Section 1983 but whether defendant Vavreck in this case acted outside the scope of his jurisdiction and therefore is not protected by the shield of immunity. Although the burden will be on plaintiffs to prove their allegations at trial, at this stage in the proceedings it cannot be determined that this case is the same as those where disgruntled former criminal defendants have been precluded from bringing actions against prosecutors who have merely failed to obtain convictions. To determine that question now would require a ruling on the ultimate factual questions discussed below which would be impermissible. See, e. g., Guedry v. Ford, 431 F.2d 660 (5th Cir. 1970); Kauffman v. Moss, supra; Marlowe v. Coakley, supra; Cf. Hilliard v. Williams, 465 F.2d 1212 (6th Cir. 1972).

In the first amended complaint plaintiffs allege that defendant Vavreck conspired with police officers and acted individually to deprive plaintiffs of Constitutionally secured rights. It is alleged that defendants planned a warrantless raid on the Lykken home on May 7, 1970 and that on May 8 at least one defendant police officer consulted with defendant Vavreck in regard to the method to be employed to advance the conspiracy. The complaint can be construed as to allege at least that defendant Vavreck directed the police activity in which he did not participate personally and therefore a question of fact is presented.

Although a prosecutor is immune from suit for actions taken within the scope of his official capacity as prosecutor, he will be held liable for civil damages if his actions are of a police/investigative or other similar nature and deprive plaintiffs of Constitutional rights. Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955); Balistrieri v. Warren, 314 F. Supp. 824 (W.D.Wis.1970); Peterson v. Stanczak, 48 F.R.D. 426 (N.D.Ill.1969). A like result obtains where a prosecutor has directed police activity of a type which is not Constitutionally permissible. Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970); Madison v. Purdy, 410 F.2d 299 (5th Cir. 1969), appeal on remand Madison v. Gerstein, 440 F.2d 338 (5th Cir. 1971). See also McCray v. State of Maryland, 456 F.2d 1 (4th Cir. 1972); Lynch v. Johnson, 420 F.2d 818 (6th Cir. 1970). It is alleged that defendant Vavreck participated in and directed the investigation of the gathering at the Lykken residence prior to the arrests and prosecutions and that his activities were conducted under color of state law to deprive plaintiffs of their Constitutional rights. It therefore appears that plaintiffs have alleged sufficient facts which, if proved, would result in liability. Questions of fact cannot be disposed of on motion. Passwaters v. General Motors Corp., 454 F.2d 1270 (8th Cir. 1972). Additionally, "on motion to dismiss, it cannot be held that the prosecutor's acts were either within the scope of his jurisdiction . . . or were authorized by law." Robichaud v. Ronan, 351 F.2d 537.

In the Eighth Circuit prosecutors who act outside the scope of their jurisdiction still have available the defense of good faith and reasonable probable cause. Wilhelm v. Turner, 431 F.2d 177 (8th Cir. 1970), cert. denied 401 U. S. 947, 91 S.Ct. 919, 28 L.Ed.2d 230 (1971). However applicable, the...