Hammons v. Scott

• Decision Date: 10 August 1976
• Docket Number: No. C-75-0846 WHO.,C-75-0846 WHO.
• Citation: 423 F. Supp. 625
• Court: U.S. District Court — Northern District of California
• Parties: Adolph HAMMONS, Jr., Plaintiff, v. Donald F. SCOTT, Chief of Police, City and County of San Francisco, State of California, et al., Defendants.

423 F. Supp. 625

Adolph HAMMONS, Jr., Plaintiff, v. Donald F. SCOTT, Chief of Police, City and County of San Francisco, State of California, et al., Defendants.

No. C-75-0846 WHO.

United States District Court, N. D. California.

August 10, 1976.

Thomas W. Pulliam, Jr., San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Cal., for plaintiff.

James R. Browning, Jr., U. S. Atty., George Christopher Stoll, Asst. U. S. Atty., San Francisco, Cal., for Federal defendants.

Thomas M. O'Connor, City Atty., John A. Etchevers, Deputy City Atty., San Francisco, Cal., for Donald F. Scott.

Kenneth C. Young, Deputy Atty. Gen., San Francisco, Cal., for State defendant.

OPINION AND ORDER

ORRICK, District Judge.

Plaintiff, Adolph Hammons, Jr., a black resident of San Francisco, California, was arrested by the San Francisco Police Department on March 5, 1974, after a neighbor complained he had fired a gun at her. He was taken to the San Francisco City Jail, booked on a charge of assault with a deadly weapon, fingerprinted, and incarcerated for one day. Plaintiff was released from custody the next day, and all criminal charges arising from this incident were subsequently dropped. However, a record of plaintiff's arrest was preserved by the San Francisco Police Department and was forwarded to the Bureau of Identification and Investigation of the Department of Justice of the State of California and to the Federal Bureau of Investigation (FBI). These agencies maintain a record of plaintiff's arrest.

In this action plaintiff has launched a broadside attack on the maintenance, use, and dissemination of arrest records of persons never convicted of a criminal charge based upon the conduct for which they were arrested.¹ Plaintiff has named as defendants in this action state and local officials as well as the Attorney General of the United States, who is responsible under federal law for the collection and dissemination of arrest records, and the Director of the FBI to whom the federal criminal record-keeping tasks have been delegated. See, 28 U.S.C. § 534; 28 C.F.R. §§ .85, 20.1 et seq. Plaintiff contends that the maintenance and dissemination of arrest records by the defendants is unconstitutional where the person arrested was never convicted of, nor pleaded guilty or nolo contendere to, any crime arising from the conduct for which such arrest was made and where criminal proceedings against that person arising from such conduct have been terminated. Plaintiff asserts that the maintenance and dissemination of such records violate constitutional guarantees of due process and a constitutional right to privacy. Plaintiff further contends that the practices challenged herein violate the constitutional prohibition against racial discrimination. He seeks declaratory and injunctive relief, including an order requiring the expungement of all such arrest records.

Plaintiff's challenge to the state and local practices governing the maintenance and dissemination of arrest records was addressed by a three-judge court. 28 U.S.C. §§ 2281-2284. The remaining issues in the case, involving the federal defendants, were retained for consideration by this Court sitting as a single judge. C. Wright, Handbook of the Law of Federal Courts 191 (2d ed. 1970).

Spurred on by the recent pronouncements of the Supreme Court in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the federal defendants now move this Court to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Because the Court in Paul v. Davis has so severely undercut the bases of plaintiff's constitutional arguments, this Court now feels compelled to grant the federal defendants' motion to dismiss.

The issue of what, if any, restraints should be imposed upon the practices of public agencies regarding the maintenance and dissemination of arrest records of persons who were never convicted of the crime for which they were arrested has concerned numerous courts. See, e. g., Utz v. Cullinane, 172 U.S.App.D.C. 67, 520 F.2d 467 (1975); Tarlton v. Saxbe, 165 U.S.App.D.C. 293, 507 F.2d 1116 (1974); Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974); Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970); United States v. Dooley, 364 F.Supp. 75 (E.D.Pa.1973); United States v. Kalish, 271 F.Supp. 968 (D.P.R. 1967); see also, Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Eddy v. Moore, 5 Wash.App. 334, 487 P.2d 211 (1971).

However, the Supreme Court in Paul v. Davis, supra, seems to have cut short the full development of the nascent doctrines seeking some accommodation between values of individual privacy and the record-keeping responsibilities of the executive branch. Paul involved a challenge to the practice of the Chief of Police of Louisville, Kentucky, and other local officials of distributing flyers containing the names and photographs of persons suspected of being shoplifters. The flyers, consisting of five pages of "mug shot" photographs, proclaimed that those depicted were "Active Shoplifters". Included in the flyer was the name and "mug shot" of respondent, Davis, who had never been convicted of any criminal activity and whose only "offense" was having once been arrested on a shoplifting charge. Shortly after the circulation of the flyer, the charges against Davis were dismissed.

The Supreme Court held that the distribution of the flyer involved no infringement of Davis' constitutionally protected rights. Paul v. Davis, supra, 424 U.S. at 705-707, 96 S.Ct. 1155. The Court ruled that the claimed injuries to Davis' reputation invaded neither a "liberty" nor "property" interest protected by the Due Process Clause of the Fourteenth Amendment. Paul v. Davis, supra, at 711-714, 96 S.Ct. 1155. The Court similarly dismissed the claim that defendants' actions infringed upon a constitutional right to privacy. Paul v. Davis, supra, at 711-714, 96 S.Ct. 1155.

With the holding of Paul v. Davis, supra, in mind, the Court turns to a brief examination of the federal record-keeping practices challenged by plaintiff.

The primary statutory authority for federal criminal record-keeping activity is 28 U.S.C. § 534.²See also, 42 U.S.C. §§ 3761, 3763, 3769, 3771 and 3781. Section 534 authorizes the Attorney General, among other things, to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records". These record-keeping tasks have been delegated to the Director of the FBI. 28 C.F.R. § 0.85(b).

The details of the FBI criminal record-keeping system have been fully described in previous cases and need little elaboration here. See, e. g., Menard v. Saxbe, supra, 498 F.2d at 1020-1022. Briefly stated, the FBI Identification Division serves as a national repository for criminal history record information, including fingerprints and arrest records, submitted to it by more than 7,000 federal, state, and local agencies. The system is a mutual one wherein contributing agencies voluntarily submit information and in turn are entitled to receive information upon request for authorized purposes, including law enforcement related matters and employment screening.³ The FBI presently maintains arrest records pertaining to more than 20,000,000 individuals.

The FBI receives in excess of 11,000 arrest fingerprint cards each workday from its contributors. When such a card is received, the FBI checks its records and reports back to the contributing agency that no prior arrest record was located or provides the contributor with a criminal history record or "rap sheet" on the arrested individual. Rap sheets are also disseminated to authorized agencies, including officers of the court and probationary authorities, upon request. Recent court decisions have imposed upon the FBI a duty to prevent the dissemination of inaccurate arrest and conviction records and to take reasonable steps to prevent inaccuracies. Tarlton v. Saxbe, supra; on remand, Tarlton v. Saxbe, 407 F.Supp. 1083 (D.D.C., 1976).

The arrest records maintained by the FBI are utilized for law enforcement related purposes — including utilization as a source of information, to some degree, in identifying persons suspected of having committed crimes, in determining persons to be placed under surveillance, and in determining which persons to interview in criminal investigations.

The arrest records are also used and disseminated for employment and licensing purposes, both within the federal government, by other governmental entities, including state and local governments, and certain private employers. Indeed, arrest records contained within the FBI's Computerized Criminal History File are disseminated upon request to over 14,500 public and private agencies, including the United States Civil Service Commission, the Armed Services, banks, and state and local governments, for use in making determinations regarding employment. See, Utz v. Cullinane, supra, 520 F.2d at 471.

As noted, plaintiff attacks the maintenance and dissemination of arrest records for persons who were never adjudged guilty of a criminal charge arising from the conduct for which they were arrested. However, the Court finds that the due process and right to privacy theories underlying plaintiff's claims are so similar to those recently rejected by the Supreme Court in Paul that these claims must fall as against the federal defendants. Although the facts in Paul are distinguishable from the case at bar, plaintiff's efforts to escape the controlling force of Paul are unavailing. If the Supreme Court failed to recognize a constitutional claim in the aggravated circumstances present in Paul, this Court cannot see how the same constitutional rights could be implicated by the practices challenged herein. The Court notes in this regard that the Paul decision was expressly made applicable to claims against federal officials as well as against...