Diamond v. Marland

• Decision Date: 28 May 1975
• Docket Number: No. CV474-40.,CV474-40.
• Citation: 395 F. Supp. 432
• Parties: Herman DIAMOND, Plaintiff, v. Dr. Frederick C. MARLAND et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

395 F. Supp. 432

Herman DIAMOND, Plaintiff, v. Dr. Frederick C. MARLAND et al., Defendants.

No. CV474-40.

United States District Court, S. D. Georgia, Savannah Division.

May 28, 1975.

COPYRIGHT MATERIAL OMITTED

Jack Friday, Fletcher Farrington, Hill, Jones & Farrington, Savannah, Ga., for plaintiff.

Anton F. Solms, Jr., Savannah, Ga., for County Commissioners, Case & Argust.

Patricia T. Barmeyer, Asst. Atty. Gen., Atlanta, Ga., and John W. Sognier, Kennedy & Sognier, Savannah, Ga., for Marland, Maxwell & Cassidy.

ORDER ON MOTIONS OF THE PARTIES FOR SUMMARY JUDGMENT

LAWRENCE, Chief Judge.

I The Litigation

In this action brought under the Civil Rights Act of 1871 Herman Diamond seeks damages against the defendants, Sergeant Horace Case and Officer Mike Argust of the Chatham County Police force and Dr. Frederick C. Marland and Rangers E. D. Maxwell and R. M. Cassidy who are employed by the Georgia Department of Natural Resources. Originally, the members of the Chatham County Commission were also parties defendant in the action but were eliminated as a result of the grant of their motion for summary judgment on May 25, 1975.

The complaint alleges that on April 4, 1973, Marland caused the four defendant law enforcement officers to unlawfully arrest and detain plaintiff. It is claimed that such arrest was illegal because it was made without a warrant. It is alleged that the acts of the defendants violated rights secured to the plaintiff by the Fourth, Fifth and Fourteenth Amendments. The action is maintained under 42 U.S.C. § 1983 which provides a civil remedy for deprivation of a citizen's federal constitutional rights and privileges by persons acting under color of state law.

Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343(4). Pendent jurisdiction is apparently evoked as to a cause of action under state law against Dr. Marland, Director of Marshland Protection, Department of Natural Resources, for malicious prosecution in causing a warrant to be issued charging Mr. Diamond with the crime of filling marshland without obtaining the license required by the Coastal Marshlands Protection Act of 1970.¹ The trial of the criminal case in the State Court of Chatham County in January, 1974, terminated in a jury verdict for Diamond.²

II The Motions and the Issues

Before me for decision are motions for summary judgment by the five defendants and also one on behalf of the plaintiff. Diamond seeks partial summary judgment on the issue of defendants' liability to him.

The five defendants constitute two classes: on the one hand, the Marshland Protection personnel (Marland, Cassidy and Maxwell) and, on the other, the two County police officers, Case and Argust. The two groups are represented by different counsel.

(A) Marland, Cassidy and Maxwell move for summary judgment on the ground that the record negates the existence of any genuine issue of fact as to the lawfulness of the arrest of Diamond by the Conservation Rangers. Attached to the motion, along with affidavits, is the transcript of the evidence in the criminal case of State of Georgia vs. Diamond. The defendants claim that probable cause unquestionably existed for the arrest and prosecution of Mr. Diamond for violation of the Marshlands Protection Act of 1970.

(B) The complaint alleges that County officers Case and Argust unlawfully arrested plaintiff on April 4, 1973, in that no warrant had issued at the time he was restrained of his liberty. The motion for summary judgment on behalf of the defendants in question asserts that they did not arrest plaintiff but acted reasonably in the exercise of their duties in responding to a call for assistance from another law enforcement officer, Ranger Cassidy. The affidavits accompanying the motion state that they reached the marshfill after the arrest of Mr. Diamond. Because of his "uncooperative attitude", it was decided that it would be better to use the police car (it had a protective screen between the front and rear seats) to carry Mr. Diamond to the County Courthouse.

(C) Plaintiff seeks partial summary judgment against the defendants on the issue of liability. Diamond contends that they effected a warrantless arrest "for an alleged misdemeanor not committed in their presence, thereby depriving the plaintiff of his rights of due process". Plaintiff says that the unlawful arrest renders defendants liable under § 1983 as a matter of law.

III The Arrest on April 4, 1973

Diamond admits that between 1965 and 1973 he had filled the marsh area in question. Tr., State trial, pp. 107, 108. Dr. Frederick C. Marland is Director of Marshland Protection. Plaintiff admits that on August 6, 1972, during a visit to the site the latter advised him that the fill work in progress was illegal. Admission No. 17. Diamond had no permit from the State Agency. Nor did he have one from the Corps of Engineers which also possessed jurisdiction over the filling of the marsh site. In 1972 the Army asked Diamond to desist from the alleged dumping. He denied its jurisdiction over the marshfill and continued the fill work.

On the afternoon of April 4, 1973, Marland as Director of Marshland Protection was making a routine inspection in the Wilmington Island area. He observed a dump truck and followed it. Observing a bulldozer at the site of the Diamond marshfill, he stopped. The dump truck loaded with fill arrived shortly thereafter. Diamond was warned by Marland not to dump on the marsh.³ "Just watch me," was the reply. According to Dr. Marland, the fill material was dumped from the truck and Diamond got on the bulldozer and started pushing the material into the marsh. Tr., State trial, p. 22-23. Dr. Marland has no authority to arrest and he called the Conservation Rangers. Upon their arrival, Diamond was placed under arrest, apparently by Ranger Cassidy. Ranger Maxwell denies that he arrested Diamond. The plaintiff says that both Rangers placed him under arrest and did so at Marland's direction.

Considerable heat was generated by all this. Dr. Marland called the County police on the car radio to request assistance. Mr. Diamond states in an affidavit that when County Officers Case and Argust arrived on the scene, Marland told them, "I want that man arrested." Argust informed him, "You're under arrest." When Diamond remonstrated, Officer Case "put his hand on his gun, slightly raised it out of the holster and threatened, `If you don't go with me, I'll use this on you.'" According to Diamond, they pulled him toward the police car. He was taken to the Courthouse. Case and Argust claim that they merely responded to a call directing them to assist Ranger Cassidy.

Diamond contends that his arrest was illegal because it was made on the basis of an alleged offense constituting a misdemeanor which was not committed in the immediate presence of any of the arresting officers. "None of the four officers who arrested me saw or claim to have seen the events for which I was arrested". This is not entirely accurate. Ranger Cassidy testified at the State Court hearing that on his arrival at the Diamond site he observed a truck dump a load of sand or dirt into the existing fill and that some of it fell into the marshgrass. Tr., State trial, pp. 80, 82. Cassidy observed, according to his affidavit, fresh dirt or sand in the stumps and in the marsh adjacent to the fill.

In answer to requests for admissions Mr. Diamond admits that Cassidy walked out into the fill area. However, he denies that he pushed any dirt into the marshgrass or that the Rangers observed him do so. Plaintiff does not deny that after being told by Marland to stop dumping on the marshfill he continued to use the bulldozer to push dirt or sand thereon. He admits that he had ordered and that there was delivered at the site on the day of his arrest at least three truckloads of fill material. At the State Court trial Diamond testified that there were several stumps on the edge of the fill which were not in the marsh and that he at no time placed any dirt on the marsh side of the stumps. He explained that he was merely seeking to prevent erosion on the mainland side of the stumps. Tr., pp. 114-118.

Such, in conspect, are the events of the warrantless arrest — the seed-corn of this § 1983 action.

IV Warrantless Arrests for Misdemeanors under Georgia Law

Diamond contends that under Georgia law a warrantless arrest for a misdemeanor is illegal unless committed in the presence of the arresting officer and he insists that probable cause is not the test of validity of an arrest in a misdemeanor charge. His counsel argue that an arrest that is unlawful under state law constitutes a transgression of federal constitutional rights and may be made the basis of an action against an officer under § 1983. See Antelope v. George, 211 F.Supp. 657 (D., Idaho). It is further contended by Diamond that even if the validity of his arrest should not be governed by Georgia law, a violation of federal due process would result were legality measured by common-law standards.

Marland, Cassidy and Maxwell (and also the two County police officers) maintain that the undisputed facts, considered along with the doctrine of collateral estoppel,⁴ conclusively demonstrate that there was probable cause and a reasonable good-faith belief as to the existence thereof for the arrest of plaintiff.

It becomes necessary to explore the Georgia law as to the lawfulness of the arrest; the matter of whether state law is the criterion for violation of Fourth and Fourteenth Amendment rights, and, if not, by what standard the federal Constitution measures the unlawfulness of state arrests for the purpose of an action under § 1983.

In this State "An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be failure of justice for want of an officer to issue a...