Bacon v. Patera

• Decision Date: 13 September 1985
• Docket Number: No. 82-3658,82-3658
• Citation: 772 F.2d 259
• Parties: Howard BACON, and Private Officer, Inc., Plaintiffs-Appellees, v. Joseph PATERA, Patrolman, Donald Whitecar, Patrolman, Defendants, Clayton Crook, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 259

772 F.2d 259

Howard BACON, and Private Officer, Inc., Plaintiffs-Appellees, v. Joseph PATERA, Patrolman, Donald Whitecar, Patrolman, Defendants, Clayton Crook, Defendant-Appellant.

No. 82-3658.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 8, 1983.

Decided Sept. 13, 1985.

Thomas A. Dugan, argued, Alexander M. Andrews, Cleveland, Ohio, for defendants/defendant-appellant.

Michael E. Banta, argued, Cleveland, Ohio, for plaintiffs-appellees.

Before MARTIN and JONES, Circuit Judges, and PECK, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Clayton Crook appeals a judgment against him for depriving plaintiffs of their constitutional rights in violation of 42 U.S.C. Sec. 1983 and for malicious prosecution. Crook is the Chief of Police for the city of Brunswick, Ohio. Plaintiff Howard Bacon is a licensed private investigator in the state of Ohio. Mr. Bacon is also president of his own corporation and coplaintiff in the case, Private Officer, Inc., which provided security services to businesses in northern Ohio.

In the fall of 1976, Bacon agreed to provide security services for several restaurants operated by Perkins Pancake & Steak House, Inc. One of those restaurants was located in Brunswick. In preparation for his new job, Bacon arranged to meet with Chief Crook on November 16, 1976. Ohio law requires that all private investigators doing business in a municipality must report to the local police chief within twelve hours of their arrival. See Ohio Rev.Code Sec. 4749.05(B). At that meeting, Chief Crook informed Bacon that he and his employees would be required to obtain a private police officer's commission pursuant to Chapter 840.01 of the Brunswick Codified Ordinances before they could provide security services in Brunswick. Each commission costs $50. In reply, Bacon told the chief that he did not desire such a commission and that he believed that the City could not require him to obtain one. Chief Crook then stated that if Bacon attempted to work without a commission, he would be arrested and cited for violation of the ordinance.

Thereafter, on five separate occasions, Bacon was cited for violating the Brunswick ordinance while working at the Perkins Restaurant. Chief Crook delivered the first citation himself. The remaining citations were served by officers on Crook's staff. Bacon was also required to appear in the Brunswick Mayor's Court on three occasions to answer to the charges. Each time, Bacon pled not guilty, demanded a jury trial, and posted bond. The charges were eventually consolidated, and the case was transferred to the Medina Municipal Court for trial on February 1, 1977. On that date, the trial judge dismissed the charges against Bacon because he had violated no law. The trial judge found that the ordinance relied upon by Chief Crook only granted him the authority to issue private police commissions but not the authority to require that private investigators obtain such commissions before providing police services. As a result of these legal entanglements, however, Bacon lost his security contract at the Brunswick Perkins restaurant.

On January 31, 1978, Bacon filed this section 1983 complaint against Chief Crook, Brunswick Mayor Helen West, Brunswick Prosecutor Robert Tinl, and Patrolmen Joseph Patera and Donald Whitecar, charging that these defendants, acting under color of state law, had deprived Bacon of various constitutional rights: (1) his right to freedom from unlawful searches and seizures (fourth amendment); (2) his right to be free from police harassment and intimidation (fifth amendment); (3) his right to be free from malicious prosecution (eighth amendment); and (4) his right to due process of law (fourteenth amendment). Bacon also filed a separate state-law claim for malicious prosecution. In addition, Bacon's corporation, Private Officer, Inc., filed its own complaint against the same defendants alleging similar offenses.

The district judge granted summary judgment for defendants Tinl and West before trial. At trial, a jury awarded Bacon $35,000 in compensatory damages and $5,000 in punitive damages against Chief Crook. The jury also awarded Private Officer, Inc. $50,000 in compensatory damages and $15,000 in punitive damages. ¹ Patrolmen Whitecar and Patera were found not liable.

On appeal, Chief Crook maintains that the district court erred in not granting him a directed verdict, basically on the grounds that the plaintiffs failed to state a claim and that his good faith defenses should have precluded liability. Chief Crook further argues that even if we should find that Bacon has stated a claim, the trial judge should have at least directed a verdict against Private Officer. Finally, Chief Crook claims that the district court made a number of evidentiary errors, such as excluding evidence as to his motivation in citing Bacon and excluding the ordinance upon which he relied.

We shall first consider whether the district judge erred in not granting Chief Crook's motion for a directed verdict as to plaintiff, Howard Bacon, both as to the plaintiff's section 1983 claim and his malicious prosecution claim. We shall then consider Chief Crook's alleged evidentiary errors. Finally, we shall consider Chief Crook's argument that a directed verdict should have been granted against Private Officer, Inc.

I. Section 1983 Claims

As was outlined above, Bacon has asserted four types of constitutional deprivations. Three of these claims are substantive constitutional claims. See Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir. 1985). Bacon's fourth claim, however, is a procedural one based purely on the fourteenth amendment. We shall consider this latter claim first.

A. Procedural Due Process Claim

To state a claim under section 1983, a plaintiff must show two things: (1) that the defendant acted under color of state law, and (2) that the defendant deprived the plaintiff of a federal right, either statutory or constitutional. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980). Here, there is no dispute that Chief Crook was acting under color of state law. However, there is some question as to whether Chief Crook deprived Bacon of any federally-guaranteed right.

With respect to Bacon's procedural due process claim, Bacon is claiming that Chief Crook deprived him of his liberty without providing him due process. The liberty that Chief Crook allegedly deprived Bacon of was his right to a good reputation and his right to engage in his occupation. If the procedural protections of the fourteenth amendment are to come into play, these alleged deprivations must be cognizable as protected liberty interests. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153-54, 71 L.Ed.2d 265 (1982).

One of the earliest Supreme Court cases to discuss the scope of protected liberty interests is Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In that case, the Supreme Court defined liberty to include:

not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge ... and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.

Id. at 572, 92 S.Ct. at 2706-07. Although later Supreme Court cases would somewhat narrow the definition of liberty interest, see Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), the Supreme Court has consistently recognized that the due process clause forbids arbitrary deprivation of liberty "where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him." Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971)). Even in Paul v. Davis, where the Supreme Court refused to allow a section 1983 claim based upon injury to reputation, the Court recognized that if the damage to reputation was combined with a tangible injury such as loss of employment, a section 1983 claim could be alleged. Paul v. Davis, 424 U.S. at 701, 96 S.Ct. at 1160-61. Because Bacon allegedly lost his employment at Perkins as a direct result of Chief Crook's actions, he has demonstrated that a protected liberty interest was infringed.

Although Bacon may have been deprived of a protected liberty interest, he must also show that he was deprived of that interest without due process of law to state a claim under section 1983. To prove that he was deprived of due process of law, Bacon could proceed by one of two routes. First, he could show that Chief Crook had an established procedure of prosecuting groundless criminal actions against private security officers in order to harass them and force them out of business. If Bacon could show such an established state procedure, this procedure in itself would violate due process, and Bacon could state a claim. See Hudson v. Palmer, --- U.S. ----, ----, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984); Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982); Wilson v. Beebe, 770 F.2d 578, 583 (6th Cir.1985); Spruytte v. Walters, 753 F.2d 498, 509 (6th Cir.1985).

In the alternative, if Chief Crook's actions were only "random and unauthorized conduct," Hudson v. Palmer, --- U.S. at ----, 104 S.Ct. at 3203, Bacon would then have to show that state remedies are inadequate. Wilson v. Beebe, 770 F.2d 578, 583, 584. In this case, the state remedy would be a tort claim for malicious prosecution, which Bacon has filed as a pendent claim in this suit. If this remedy is adequate, and Chief Crook's actions were "random and unauthorized," then Bacon would not state a procedural due process claim.

Unfortunately, the trial court in this...