Davis v. Paul, No. 74-1225

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before PHILLIPS, Chief Judge, and CELEBREZZE and ENGEL; PHILLIPS
• Citation: 505 F.2d 1180
• Parties: Edward Charles DAVIS, III, Plaintiff-Appellant, v. Edgar PAUL, Chief of Police, Louisville Division of Police, and RussellMcDaniel, Chief of Police, Jefferson County Police, Defendants-Appellees.
• Docket Number: No. 74-1225
• Decision Date: 22 October 1974

Page 1180

505 F.2d 1180 Edward Charles DAVIS, III, Plaintiff-Appellant,
v.
Edgar PAUL, Chief of Police, Louisville Division of Police,
and RussellMcDaniel, Chief of Police, Jefferson
County Police, Defendants-Appellees. No. 74-1225. United States Court of Appeals, Sixth Circuit. Argued June 5, 1974.
Decided Oct. 22, 1974.

Daniel T. Taylor, III, Kentucky Civ. Liberties Union, William H. Allison, Jr., Robert Sedler, Lexington, Ky., for plaintiff-appellant.

Frank A. Logan, Asst. Director of Law, City of Louisville, John R. Wilson, Irvin D. Foley, Louisville, Ky., for defendants-appellees.

Before PHILLIPS, Chief Judge, and CELEBREZZE and ENGEL, Circuit judges.

PHILLIPS, Chief Judge.

Appellant, Edward Charles Davis, III, brought this class action under 42 U.S.C. 1983 alleging that the distribution by the Chiefs of Police of the Louisville and Jefferson County Police Departments of a flyer captioned 'Active Shoplifters' and containing the names and mugshots of persons who have never been convicted of shoplifting violated the Due Process Clause of the Fourteenth Amendment. Appellant seeks declaratory, injunctive and monetary relief. The District Court dismissed the complaint, holding that it did not allege any violation of rights guaranteed by the Constitution. We reverse.

The complaint asserts that on June 14, 1971, Edward Charles Davis, III, was arrested in Louisville, Kentucky, on a

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charge of shoplifting. It is alleged, and attachments to the complaint show, that he entered a plea of not guilty and that the charge was 'filed away' on September 21, 1971, and dismissed on December 11, 1972. It is further alleged that appellant is innocent of the charge and that he was never tried or convicted of the offense.

The complaint alleges that on December 5, 1972, Col. Edgar Paul, Chief of Police of the Louisville Division of Police, and Col. Russell McDaniel, Chief of Police of the Jefferson County Police (hereinafter Police Chiefs), caused to be sent flyers to numerous merchants and business establishments in the Louisville Metropolitan area. It is alleged, and attachments to the complaint show, that the flyers contained the names and mugshots of persons who had been arrested for shoplifting during 1971 and 1972 or who were active in various criminal fields in high density shopping areas, that each flyer was headed by the caption 'Active Shoplifters' and that the stated purpose of the flyer was to allow the merchants to inform their security personnel 'to watch for these subjects.' ¹ Appellant's name and mugshot were included in the flyer. It is alleged that the acts of the Police Chiefs were under color of the state law and deprived the appellants and others similarly situated of rights guaranteed by the Due Process Clause of the Fourteenth Amendment.

The Police Chiefs moved to dismiss for lack of subject matter jurisdiction. The District Court dismissed the complaint stating: 'The facts alleged in this case do not establish that plaintiff has been deprived of any right secured by the Constitution of the United States.'

On considering an appeal from an order granting a motion to dismiss, we must, of course, take the allegations in the complaint as true. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515-516, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).

Before recovery can be allowed under 1983, two elements must be present.

'First, the plaintiff must prove that the defendant has deprived him of a right secured by the 'Constitution and laws' of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right 'under color of any statute, ordinance, regulation, custom, or usage of any State or Territory.' This second element requires that the plaintiff show that the defendant acted 'under color of law." Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).

The sole issue on appeal, as it was in the District Court, concerns the first two elements set forth in the preceding paragraph. Specifically, the Police Chiefs contend that the complaint only states a cause of action for defamation and does not establish a constitutional deprivation. ² Appellant contends that the complaint sets forth facts showing a deprivation of due process as guaranteed by the Fourteenth Amendment. Specifically, appellant contends that the Due Rpocess Clause prohibits the Police Chiefs from disseminating 'to large segments of the public, flyers containing

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the names and photographs of persons who have been arrested for, but not convicted of, the offense of shoplifting and describing these persons as 'active shoplifters,' together with persons who have been convicted of the offense.' At oral argument, counsel for appellant stressed that the heart of the deprivation was the use of the label 'active shoplifter.'

We are of the view that appellant has set forth a claim cognizable under 1983 in that he has alleged facts that constitute a denial of due process of law. This holding is mandated in view of Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).

In Constantineau, the question presented to the Supreme Court involved the constitutionality of a Wisconsin statute which provided that designated persons could in writing forbid the sale or gift of intoxicating liquors to excessive drinkers who exhibited specified traits or produced described conditions. The statute did not provide for notice and hearing. The Chief of Police, pursuant to the statute and without notice or hearing, caused to be posted a notice at all retail liquor outlets in the town that sales or gifts of liquor to Constantineau were forbidden for one year. The precise issue presented to the Court was 'whether the label or characterization given a person by 'posting,' though a mark of serious illness to some, is to others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard.' 400 U.S. at 436, 91 S.Ct. at 509. In holding that due process was required, the Court stated:

'Yet certainly where the State attaches 'a badge of infamy' to...