Biehunik v. Felicetta

• Decision Date: 05 March 1971
• Docket Number: Docket 35543.,No. 490,490
• Citation: 441 F.2d 228
• Parties: Joseph BIEHUNIK et al., Plaintiffs-Appellees, v. Frank N. FELICETTA, Commissioner of Buffalo Police Department, Thomas R. Blair, Deputy Commissioner of Buffalo Police Department, Howard R. Wheeler, Inspector, Buffalo Police Department, Charles DeVoe and Karl Muehlbauer, both Captains of the Buffalo Police Department, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

441 F.2d 228 (1971)

Joseph BIEHUNIK et al., Plaintiffs-Appellees, v. Frank N. FELICETTA, Commissioner of Buffalo Police Department, Thomas R. Blair, Deputy Commissioner of Buffalo Police Department, Howard R. Wheeler, Inspector, Buffalo Police Department, Charles DeVoe and Karl Muehlbauer, both Captains of the Buffalo Police Department, Defendants-Appellants.

No. 490, Docket 35543.

United States Court of Appeals, Second Circuit.

Argued March 5, 1971.

Decided March 5, 1971.

Certiorari Denied June 21, 1971.

Anthony Gregory, Asst. Corp. Counsel (Anthony Manguso, Corp. Counsel, Buffalo, N. Y., on the brief), for appellants.

William B. Mahoney, Buffalo, N. Y., for appellees.

Before LUMBARD, Chief Judge, KAUFMAN and ANDERSON, Circuit Judges.

Certiorari Denied June 21, 1971. See 91 S.Ct. 2256

IRVING R. KAUFMAN, Circuit Judge:

This appeal presents another aspect of the continuing problem of reconciling the state's powers as employer with the constitutional protections its employees enjoy as citizens. The Buffalo Police Commissioner, Frank Felicetta, commanded 62 city policemen, upon pain of discharge, to appear in a lineup for possible identification by civilians who allegedly had been assaulted by certain patrolmen. The District Court permanently enjoined the lineup. For the reasons set forth below, we reversed the judgment in open court following oral argument and ordered that the mandate issue forthwith.

I.

At approximately 8:30 in the evening of April 6, 1970, patrolling policemen close to 476 Sycamore Street came under gun fire, allegedly from a sniper positioned in the building. Reinforcements were quickly called in by radio to assist in suppressing the fire. Soon thereafter, between 10 and 25 officers entered the building to apprehend the suspected gunman. Complaints shortly received by the Commissioner charged that several members of this squad burst unannounced into occupied apartments of the building and without justification beat the inhabitants severely, requiring hospitalizations in several instances.

Commissioner Felicetta pursued his investigation of the complaints by assembling the names, 62 in number, of policemen who were on duty in the vicinity of 476 Sycamore Street on the night in question. Several days later, a few complainants were permitted to view photographs of the 62 officers. Apparently because of the age of the photographs,¹ the resulting identifications proved untrustworthy. After further consultation with the complainants and discussion with Buffalo's Corporation Counsel, the Commissioner on May 27 issued a series of orders to his subordinate officers directing the 62 policemen to report to the Police Academy in their usual duty dress at 6:00 p. m. on June 3, 1970. The order concluded:

These arrangements are made for the purpose of staging a lineup so that identification can possibly be made in connection with an incident which occurred at 476 Sycamore Street on April 6, 1970. Because there is the possibility of resulting criminal prosecutions, you will notify each officer so ordered that he has the right to be represented by counsel and/or P.B.A. representative at this lineup. In addition, you will notify each officer that he is entitled to exercise all rights pursuant to the Miranda decision as set forth by the U.S. Supreme Court.

The policemen promptly instituted this civil rights action, alleging that the lineup would deprive them of various constitutional rights. 28 U.S.C. § 1343; 42 U.S.C. § 1983. The District Court thereupon issued an ex parte temporary restraining order shortly before noon on June 3 enjoining the lineup.² Commissioner Felicetta apparently agreed not to conduct the lineup during the suit's pendency, and on August 20 a permanent injunctive order was entered.

II.

As we perceive it, the principal ground for Judge Henderson's injunction is that the compulsory presence of the 62 officers at the Police Academy would have constituted a "seizure" of their persons, unsupported by an arrest warrant or probable cause to arrest. It is conceded by the Commissioner that he had no reasonable basis for believing that all 62 officers had committed a crime or that probable cause to take them into custody existed. Nor do we question on this appeal that the compelled appearance at the lineup can be considered a "seizure" of the officers within the purview of the Fourth Amendment. A person's ability to pursue lawful activities of his own choosing without official interference can be as abruptly infringed by an authoritative command to present oneself as by a policeman's hand on the shoulder or handcuffs on the wrist. Cf. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L. Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed. 2d 889 (1968) ("It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person.")

Nor do we take issue with plaintiffs' premise that the Constitution protects policemen as fully as other citizens. They, "like teachers and lawyers, are not relegated to a watered-down version of constitutional rights." Garrity v. United States, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967).

The plaintiffs would have us end our inquiry at this point. They would have us say that to "arrest" a policeman, like any other citizen, without probable cause is an unreasonable seizure, and hence outlawed by the Fourth Amendment. In the familiar criminal arrest context, the reasonableness of a seizure of the person is indeed usually measured by the existence vel non of probable cause. But we cannot accept the contention that this principle, well established as it may be, must be applied inflexibly even in cases far removed from the criminal arrest arena.

In a series of recent decisions the Supreme Court has confirmed the obligation of the courts in such atypical cases to undertake the familiar task of weighing the governmental interest in the particular intrusion against the offense to personal dignity and integrity. In Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), the Court considered the reasonableness of area-wide health inspections under the Fourth Amendment. Noting that these vital programs would be crippled if the customary showing of probable cause were required, and that such inspections normally do not infringe privacy as severely as the characteristic criminal search, the Court approved the issuance of inspection warrants on a far less stringent showing of need. In the following term, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), applied a similar analysis in upholding a limited stop and frisk seizure and search made without probable cause or warrant, where the officer had reason to believe that the suspect was armed and dangerous. Finally, in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the Court strongly suggested that probable cause would be no prerequisite to compelling (under some sort of judicial control) a citizen to report to the station house for the narrow purpose of obtaining fingerprints.

III.

Set against this background, the question before us becomes whether upon a balance of public and individual interests, the order to plaintiffs to report to the lineup was reasonable under the particular circumstances, even though unsupported by probable cause.

Decisive to our conclusion that the lineup was indeed "reasonable" is the substantial public interest in ensuring the appearance and actuality of police integrity. We do not believe that the public must tolerate failure by responsible officials to seek out, identify, and appropriately discipline policemen responsible for brutal or unlawful behavior in the line of duty, merely because measures appropriate to those ends would be improper if they were directed solely toward the objective of criminal prosecution. A trustworthy police force is a precondition of minimal social stability in our imperfect society, a fact repeatedly dramatized by tragic incidents of violent conflict between police and some groups of civilians that continue to break out periodically in so many of our cities. Moreover, it is a correlative of the public's right to minimize the chance of police misconduct that policemen, who voluntarily accept the unique status of watchman of the social order, may not reasonably expect the same freedom from governmental restraints which are designed to ensure his fitness for office as from similar governmental actions not so designed. The policeman's employment relationship by its nature implies that in certain aspects of his affairs, he does not have the full privacy and liberty from police officials that he would otherwise enjoy. So long as the actions of a policeman's superior remain within reasonable bounds, there can hardly be that affront to expectations of...