Brown v. Nutsch, s. 79-1753

• Decision Date: 14 May 1980
• Docket Number: Nos. 79-1753,79-1952,s. 79-1753
• Citation: 619 F.2d 758
• Parties: Albert BROWN, Appellant, v. Clyde NUTSCH, Police Officer, Omaha Police Division, Douglas County, Nebraska; and Richard Alsager, Sergeant, Police Officer, Omaha Police Division, Douglas County, Appellees. McKinley ROBINSON, Appellant, v. Edward VACLAVIK, DSN 7070, Robert Gavin, DSN 7765, Josephus Reynolds, DSN 4821, individually and in their official capacities as Detectives of the St. Louis, Missouri, Metropolitan Police Department, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 758

619 F.2d 758

Albert BROWN, Appellant, v. Clyde NUTSCH, Police Officer, Omaha Police Division, Douglas

County, Nebraska; and Richard Alsager, Sergeant,

Police Officer, Omaha Police Division,

Douglas County, Appellees.

McKinley ROBINSON, Appellant, v. Edward VACLAVIK, DSN 7070, Robert Gavin, DSN 7765, Josephus

Reynolds, DSN 4821, individually and in their official

capacities as Detectives of the St. Louis, Missouri,

Metropolitan Police Department, Appellees.

Nos. 79-1753, 79-1952.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1980.

Decided April 18, 1980.

Rehearing Denied May 14, 1980.

E. Michael Murphy, St. Louis, Mo. (argued), and Albert Brown, Lincoln, Neb., on brief, for appellant.

Patrick W. Kennison, Asst. City Atty., Omaha, Neb., for appellee, Nutsch, et al.

Thomas J. Ray, Asst. City Atty., St. Louis, Mo. (argued), and Jack L. Koehr, City Counselor, St. Louis, Mo., on brief, for appellee, Vaclavik, et al.

Before HEANEY, Circuit Judge, GIBSON, Senior Circuit Judge, and STEPHENSON, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

In these two cases, consolidated for review, Albert Brown and McKinley Robinson appeal the District Courts' dismissals, for failure to state a cause of action, of their damage suits brought under 42 U.S.C. § 1983 ¹ alleging improper interstate extradition in violation of Article IV, § 2 of the United States Constitution, the extradition clause, ² and 18 U.S.C. § 3182, the extradition statute. ³ The threshold question involved in both of these cases is whether section 1983 provides a remedy for improper extradition. We find that the extradition clause and statute do provide individuals, subject to removal by state authorities from one state to another to face criminal charges, with rights, privileges, and immunities protected by the Constitution and laws of the United States. Accordingly, we reverse with respect to Robinson. However, due to the factual circumstances alleged in Brown's complaint, we affirm the District Court's dismissal for failure to state a cause of action.

I.

McKinley Robinson was arrested on December 31, 1976, in East St. Louis, Illinois, by officers of the East St. Louis Police Department. In his complaint, Robinson alleges that on the same day he was "forcibly seized" and "forcibly transported" to the State of Missouri by three officers of the St. Louis Police Department in violation of his Constitutional rights and state extradition statutes. ⁴

Albert Brown's complaint presents a different allegation. On November 15, 1977, Brown was returned to Omaha, Nebraska, from Arkansas to face charges stemming from a shooting incident in Omaha. In his complaint, Brown alleges that the two Omaha policemen who transported him into Nebraska had not demonstrated at Brown's preliminary hearing on his arrest, in Nebraska following extradition, that they had: (1) determined the validity of the extradition papers and of the signatures requesting and granting extradition; (2) shown that Brown was the same Brown named in the extradition papers; and (3) determined that Brown was a fugitive from justice. Brown was subsequently convicted of the charge for which he was extradited and he is not challenging that conviction.

II.

In order for the court to dismiss a cause of action under section 1983, it must be convinced beyond doubt that Robinson and Brown can prove no set of facts which would establish that the police officers acted under color of state authority to deprive them of a right, privilege, or immunity secured by the Constitution and laws of the United States. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir. 1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979). It is uncontested that both the St. Louis and Omaha police officers acted under color of state law. The threshold issue is whether the extradition clause and implementing extradition statute preclude the assertion of any rights, privileges, or immunities under the Constitution or laws by a party arrested or seized in the asylum state.

A line of lower court cases hold that the extradition clause and implementing statutes, both federal and state, are for the benefit of the state to bring fleeing felons to justice and that the alleged fleeing felon possesses no federal constitutional rights to protect against improper extradition proceedings. ⁵ The Supreme Court, in Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952), dealt with the factual situation of a person forcibly abducted and kidnapped in an asylum state and returned to the demanding state for trial, which resulted in a conviction. Mr. Justice Black, speaking for a unanimous court, made it plain that the manner or method in which a fleeing felon was brought to trial from an asylum state does not invalidate his conviction under the due process clause of the fourteenth amendment, stating at 522, 72 S.Ct. at 511:

This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444 (7 S.Ct. 225, 229, 30 L.Ed. 421), that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a "forcible abduction." No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.

Thus it is clear that force, improprieties or irregularities in the extradition process do not invalidate a subsequent conviction. However, the issue remains regarding whether or not other remedies or actions are open to a party who has been extradited against his will from an asylum state in a situation where the statutory procedures relating to extradition have not been observed.

Three United States Courts of Appeals have held that a failure to comply with extradition procedures is actionable under section 1983. McBride v. Soos, 594 F.2d 610 (7th Cir. 1979); Wirth v. Surles, 562 F.2d 319 (4th Cir. 1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1509, 55 L.Ed.2d 531 (1978); Sanders v. Conine, 506 F.2d 530 (10th Cir. 1974). A number of United States District Courts, however, have found no cause of action, based on the rationale that violations of state imposed procedural safeguards in extradition situations derive from state law rather than federal law, though recognizing that conduct shocking to the conscience could give rise to a due process violation. Raffone v. Sullivan, 436 F.Supp. 939 (D.Conn.1977), remanded mem., 595 F.2d 1209 (2d Cir. 1979); Hines v. Guthrey, 342 F.Supp. 594 (W.D.Va.1972); Johnson v. Buie, 312 F.Supp. 1349 (W.D.Mo.1970). Contra, Pierson v. Grant, 357 F.Supp. 397 (N.D.Iowa 1973), aff'd on other grounds, 527 F.2d 161 (8th Cir. 1975). This circuit left open the question in Pierson v. Grant, 527 F.2d 161, 163 n.6 (8th Cir. 1975). See generally Annot. 45 A.L.R.Fed. 871 (1979).

Before granting extradition, the governor of the asylum state is required to make two findings:

(F)irst, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand; and second, that the person demanded is a fugitive from the justice of the State the executive authority of which makes the demand.

The first of these prerequisites is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus. The second is a question of fact, which the governor of the State upon whom the demand is made must decide, upon such evidence as he may deem satisfactory.

Roberts v. Reilly, 116 U.S. 80, 95, 6 S.Ct. 291, 299, 29 L.Ed. 544 (1885). The writ of habeas corpus is available to the accused to test the legality of the governor's determination on the factual issue. Id. The court considering the petition for the writ can only decide "(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978). The prisoner, before being extradited, also has the right, enforceable through the writ of habeas corpus in the asylum state, to require that a neutral judicial officer of the demanding state has made a determination of reasonable grounds or probable cause that he has committed an offense. Id. at 289-90, 99 S.Ct. at 535-36. ⁶

Prior to his removal to the demanding state, the charged party can only challenge his confinement by the asylum state authorities through the writ of habeas corpus. This would require exhaustion of state remedies. A section 1983 action is not available. See Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973). Once the prisoner has been returned to the demanding state, the writ of habeas corpus is no longer available to challenge his confinement upon grounds arising from conduct in the asylum state. Mahon v. Justice, 127 U.S. 700, 706-08, 8 S.Ct. 1204, 1207-08, 32 L.Ed. 283 (1888). Nor may the prisoner attack the validity of his conviction in the demanding state on the basis of improper extradition. Frisbie v. Collins,...