Broadway v. City of Montgomery, Alabama, No. 74--3848

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GEWIN and AINSWORTH; AINSWORTH
Citation530 F.2d 657
Docket NumberNo. 74--3848
Decision Date22 April 1976
PartiesJohn L. BROADWAY et al., Plaintiffs-Appellants, v. CITY OF MONTGOMERY, ALABAMA, et al., Defendants-Appellees.

Page 657

530 F.2d 657
John L. BROADWAY et al., Plaintiffs-Appellants,
v.
CITY OF MONTGOMERY, ALABAMA, et al., Defendants-Appellees.
No. 74--3848.
United States Court of Appeals,
Fifth Circuit.
April 22, 1976.

Page 658

Robert D. Segall, Montgomery, Ala., for plaintiffs-appellants.

Frank W. Riggs, Joseph D. Phelps, Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before GEWIN and AINSWORTH, Circuit Judges, and MARKEY, * Chief Judge.

AINSWORTH, Circuit Judge:

Plaintiffs, John L. Broadway, Levis Broadway, James Broadway, Joan McGraw and Robert Segall, appeal from a summary judgment in favor of defendants, City of Montgomery, Alabama, and two of its police officers, Don R. Terry and James Lisenby.

The original complaint filed on January 14, 1974 by John L. Broadway sought damages and injunctive relief under 42 U.S.C. § 1983, et seq. and 18 U.S.C. § 2520. 1 The complaint alleged that on or about August 1, 1973, Don R. Terry, supervisor of the Vice Squad of the Montgomery Police Department, and James Lisenby, police detective attached to the Vice Squad, placed or procured an illegal wiretap on John L. Broadway's telephone and intercepted certain oral communications. The complaint also alleged

Page 659

negligence of the City of Montgomery in failing properly to train its police officials. By amended complaints, John L. Broadway's parents, Levis and James Broadway, McGraw and Segall, counsel for James L. Broadway and the other parties in this case, all of whom allegedly had telephone conversations over the wiretapped telephone, were added as parties plaintiff.

John L. Broadway was arrested on June 6, 1973 on separate Alabama state charges pertaining to possession of cocaine and possession of marijuana, which were later docketed in the Circuit Court of Montgomery County, Alabama, under Case Nos. 9029 and 9030. Lisenby, who was working under the supervision of Terry, participated in the arrest.

On August 3, 1973, John L. Broadway discovered a wire leading from the telephone pole in front of his residence to a tape recorder in a nearby wooded area. He subsequently turned over the equipment to the Federal Bureau of Investigation.

In defense of the state criminal charges against him, John L. Broadway moved in state court to suppress the evidence on the ground of illegal seizure as a result of the wiretap. The motion to suppress was denied by the state court after an extensive hearing held on November 13 and 14, 1973. John L. Broadway subsequently went to trial but pleaded guilty at the close of the state's case to possession of cocaine. He failed to appear for sentencing, jumped bail, and since April 18, 1974 has been a fugitive from justice. The state charge against him for possession of marijuana is still pending.

After numerous amendments to the complaint and utilization of various discovery devices by the parties, defendants moved for summary judgment based on the pleadings and depositions of record. In opposition thereto plaintiffs submitted an affidavit of counsel-plaintiff Segall and the transcript from the hearing on the motion to suppress in the state criminal cases. The District Court granted the motion for summary judgment and this appeal followed.

JOHN L. BROADWAY'S CLAIMS

John L. Broadway, being a fugitive from justice, is not entitled to call on the resources of an appellate court for a determination of his case. See Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Van Blaricom v. Forscht, 5 Cir., 1974, 490 F.2d 461; Fratus v. United States, 5 Cir., 1974, 496 F.2d 1190; United States v. Shelton, 5 Cir., 1975, 508 F.2d 797. It is immaterial that the custody from which he fled is that of another sovereign. United States v. Shelton, 5 Cir., 1973,482 F.2d 848, cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973). We therefore dismiss the appeal as to John L. Broadway.

CLAIMS OF ADDITIONAL PLAINTIFFS

Plaintiffs' claim under 18 U.S.C. § 2520

Terry and Lisenby testified that they learned about the wiretap only after it was discovered by John L. Broadway. This testimony is uncontroverted by any admissible evidence. In order to prevail under 18 U.S.C. § 2520 the remaining appellants must show that the oral communications were in fact intercepted, disclosed or used by defendants. 2 The district judge observed that 'There is no evidence that any communication was disclosed or used by any defendant in this case.' He considered it unnecessary to decide the question of interception and based his judgment on the substantial evidence of defendants' innocence and the failure of plaintiffs to submit any admissible evidence to the contrary. 3 Our review of the record corroborates

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the finding of the district judge in respect to nondisclosure and nonuse of any communication by defendants, and further supplies the answer to the...

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204 practice notes
  • In re Macklin, Case No.: 05-12750-BGC-13 (Bankr. N.D. Ala. 9/23/2009), Case No.: 05-12750-BGC-13.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • September 23, 2009
    ...of unsupported allegations, conclusory in nature. As such it is insufficient to avoid summary judgment." Broadway v. City of Montgomery, 530 F.2d 657, 660 (5th Cir.1976). "Conclusory statements, unsubstantiated by facts in the record, will normally be insufficient to defeat a motion for sum......
  • U.S. v. DiBernardo, No. 87-5387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 21, 1989
    ...396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); United States v. Holmes, 680 F.2d 1372 (11th Cir.1982); Broadway v. City of Montgomery, 530 F.2d 657 (5th Page 1230 Accordingly, the order granting a new trial as to DiBernardo is hereby VACATED. This case is REMANDED to the district court ......
  • Prevot, In re, Nos. 94-5854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1995
    ...of access to appellate court applies to appeals in civil cases as well as to criminal appeals: Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir.1976) (dismissing the appeal in a Sec. 1983 action of a fugitive from a state conviction); Conforte v. Commissioner, 692 F.2d 587, 589 (9th Ci......
  • U.S. v. Forty-Five Thousand Nine Hundred Forty Dollars ($45,940) in U.S. Currency, FORTY-FIVE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1984
    ...demand that a federal court service his complaint." Id. at 1365-66 (citing Molinaro, supra ). In Broadway v. City of Montgomery, Alabama, 530 F.2d 657 (5th Cir.1976) the plaintiff sought damages from an alleged illegal wiretap installed by defendant's police officers. The district court gra......
  • Request a trial to view additional results
204 cases
  • In re Macklin, Case No.: 05-12750-BGC-13 (Bankr. N.D. Ala. 9/23/2009), Case No.: 05-12750-BGC-13.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • September 23, 2009
    ...of unsupported allegations, conclusory in nature. As such it is insufficient to avoid summary judgment." Broadway v. City of Montgomery, 530 F.2d 657, 660 (5th Cir.1976). "Conclusory statements, unsubstantiated by facts in the record, will normally be insufficient to defeat a motion for sum......
  • U.S. v. DiBernardo, No. 87-5387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 21, 1989
    ...396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); United States v. Holmes, 680 F.2d 1372 (11th Cir.1982); Broadway v. City of Montgomery, 530 F.2d 657 (5th Page 1230 Accordingly, the order granting a new trial as to DiBernardo is hereby VACATED. This case is REMANDED to the district court ......
  • Prevot, In re, Nos. 94-5854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1995
    ...of access to appellate court applies to appeals in civil cases as well as to criminal appeals: Broadway v. City of Montgomery, 530 F.2d 657 (5th Cir.1976) (dismissing the appeal in a Sec. 1983 action of a fugitive from a state conviction); Conforte v. Commissioner, 692 F.2d 587, 589 (9th Ci......
  • U.S. v. Forty-Five Thousand Nine Hundred Forty Dollars ($45,940) in U.S. Currency, FORTY-FIVE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 11, 1984
    ...demand that a federal court service his complaint." Id. at 1365-66 (citing Molinaro, supra ). In Broadway v. City of Montgomery, Alabama, 530 F.2d 657 (5th Cir.1976) the plaintiff sought damages from an alleged illegal wiretap installed by defendant's police officers. The district court gra......
  • Request a trial to view additional results

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