Laverne v. Corning

• Decision Date: 03 July 1975
• Docket Number: No. 419,D,419
• Parties: Erwine LAVERNE and Estelle Laverne, Plaintiffs-Appellants, v. Howard J. CORNING, Jr., Mayor, et al., Defendants-Appellees. ocket 74-1856.
• Court: U.S. Court of Appeals — Second Circuit

Page 1144

522 F.2d 1144

Erwine LAVERNE and Estelle Laverne, Plaintiffs-Appellants, v. Howard J. CORNING, Jr., Mayor, et al., Defendants-Appellees.

No. 419, Docket 74-1856.

United States Court of Appeals, Second Circuit.

Argued April 30, 1975.

Decided July 3, 1975.

Michael Ratner, New York City (Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City, on the brief), for appellants.

Henry Root Stern, Jr., New York City (Thomas R. Esposito, P. Jay Wilker, Mudge, Rose, Guthrie & Alexander, New York City, on the brief), for appellees.

Before MOORE and MANSFIELD, Circuit Judges, and HOLDEN, ^* District Judge.

MOORE, Circuit Judge:

The principal issue presented by this appeal is whether the defendants the Mayor, Deputy Mayor, Building Inspector and other officials of the Village of Laurel Hollow, Nassau County, Long Island are entitled to assert good faith as a defense in this civil rights suit brought under 42 U.S.C. §§ 1981-88 seeking damages for violations of the plaintiffs' Fourth Amendment rights. A brief outline of the facts and the procedural history of this litigation is required.

The plaintiffs Erwine and Estelle Laverne are artists and designers. In 1949 they purchased the Tiffany Estate, located in the Village of Laurel Hollow. The area in which the premises are located was zoned exclusively for residential purposes and could not lawfully be used for commercial endeavors. In 1950 the Village brought an action in state court to enjoin the Lavernes from using the premises as a factory. The trial court granted the injunction, and the New York appellate courts modified it and kept it in effect. ¹

Sometime prior to July 1962, Hugh G. Johnson, the Village Building Inspector, received an informal complaint from a neighbor of the Lavernes indicating that numerous trucks were entering and leaving the premises. A section of the Village zoning ordinance gave the Building Inspector authority to enforce its provisions and for that purpose empowered him "to enter any building or premises at any reasonable hour." ² Another section of the zoning ordinance subjected violators to criminal disorderly conduct charges and fines of $100 a day while a violation existed. ³

Pursuant to his authority under the ordinance, Johnson on several occasions sought to inspect the Laverne premises, but in each instance he found the front gate locked and could arose no one by knocking. On July 24, 1962, while driving past the property with an architect friend, Johnson noticed that the front gate was open, permitting access into the courtyard. Johnson stopped and, accompanied by his friend, entered the gate. He came upon three Laverne employees engaged in unclogging a drain. Johnson did not immediately identify himself and for some minutes had a friendly conversation with the employees, who apparently were under the impression that Johnson was a real estate broker. When this initial confusion was cleared up and Johnson's actual position revealed, the three employees asked him to leave, and Johnson complied. During this visit Johnson saw drying racks, cans of paint, rolls of paper and other materials which led him to believe that the Lavernes were violating the 1954 injunction and the Village ordinance.

Johnson reported what he had observed to the Village Board of Trustees. The Board considered the matter at its September 1962 meeting and, with the advice of the Village attorney, authorized Johnson and Hutchinson Dubosque, the Deputy Mayor of the Village, to make another inspection of the Laverne premises.

Howard Corning, the Mayor, subsequently decided to accompany them, and an inspection was carried out on October 18, 1962. ⁴ The inspection, which covered principally the main entry area of the premises, lasted some minutes until Estelle Laverne asked the officials to leave. Several photographs were taken, and the three men observed the same sort of materials Johnson had seen on his earlier visit.

On the basis of the evidence gathered during these inspections, the Village commenced contempt proceedings against the Lavernes for violating the 1954 injunction and a criminal action against Erwine Laverne for violating Village zoning ordinance. A contempt order was obtained, and this prompted another inspection by the Building Inspector on December 18, 1962, to see that the Lavernes were complying with the terms of the order. Subsequent to that time the Village sought another contempt order and instituted a suit seeking civil penalties for violations of the injunction.

Erwine Laverne was convicted of violating the Village ordinance. He received a six months' suspended jail sentence, ⁵ and his case came up before the New York Court of Appeals. In a 4-3 decision that court reversed the conviction on the ground that the various warrantless inspections of the Laverne premises violated the Fourth Amendment. People v. Laverne, 14 N.Y.2d 304, 251 N.Y.S.2d 452, 200 N.E.2d 441 (1964). The Court of Appeals found that the inspections were made for the purpose of obtaining evidence for a criminal prosecution and thereby distinguished Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959) (subsequently overruled in Camera v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)), which had upheld warrantless inspections of dwellings for the purpose of administrative or civil enforcement of a city health code.

Following the decision in People v. Laverne, supra, the Appellate Division also reversed judgments in favor of the Village in the civil actions brought against the Lavernes. Incorporated Village of Laurel Hollow v. Laverne Originals, Inc., 24 A.D.2d 615, 262 N.Y.S.2d 622 (2d Dept. 1965); Incorporated Village of Laurel Hollow v. Laverne, Inc., 24 A.D.2d 616, 262 N.Y.S.2d 625 (2d Dept. 1965).

The plaintiffs brought this civil rights action to redress the violations of their constitutional rights found by the New York Courts to have occurred in connection with the inspections. They seek to recover approximately $26,000 in legal costs, as well as compensation for stress, trauma and emotional distress, and punitive damages. The case was initially assigned to Judge Tenney, who granted summary judgment in favor of the Lavernes on the issue of liability. He found that the defendants' good faith, if it existed, in conducting the inspections would provide no defense to the charges and therefore ruled that there were no material issues of fact to be tried. ⁶

After this court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972), holding that a good-faith and reasonable belief in the lawfulness of an arrest and search was a defense in a damage suit brought against federal agents pursuant to an implied right of action under the Fourth Amendment, ⁷ the defendants moved before Judge Tenney to vacate the earlier grant of partial summary judgment. By this time, the case had been assigned to a different judge, and Judge Tenney declined to vacate his previous order. He did, however, indicate that the new judge could, if he so desired, reexamine the issue or permit the issue of good faith to be tried to a jury. ⁸ Judge Knapp subsequently adopted the latter suggestion, and after a five-day trial a jury found that the defendants had acted with a good-faith and reasonable belief that the search was valid. In a subsequent memorandum opinion, Judge Knapp ruled that this finding was a complete defense to the action and therefore entered final judgment for the defendants. ⁹ From this judgment the plaintiffs have filed this appeal.

I.

At this juncture in these proceedings, it is conceded that the inspections were unconstitutional at the time they were made, and therefore as noted at the outset of this opinion, the principal question presented is whether the defendants' good-faith belief in the lawfulness of the inspections provides a complete defense in this lawsuit. We hold that it does.

Any discussion of the good-faith defense more recently referred to by the Supreme Court as a "qualified immunity" available to governmental officials in § 1983 ¹⁰ actions for damages must start with the case of Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). There police officers had arrested the plaintiffs under a breach of the peace statute subsequently held unconstitutional by the Supreme Court in Thomas v. Mississippi, 380 U.S. 524, 85 S.Ct. 1327, 14 L.Ed.2d 265 (1965). The plaintiffs had initially been convicted before a police justice but in a trial de novo received a directed verdict of acquittal. The plaintiffs then brought a § 1983 damage action against, among others, the police officers who had arrested them. The complaint also alleged common law false arrest and imprisonment. The court of appeals decided that the police would be liable under § 1983 for an unconstitutional arrest even if they acted in good faith and with probable cause in making an arrest under a statute later held unconstitutional. The Supreme Court reversed on this issue, holding "that the defense of good faith and probable cause, which the Court of Appeals found available in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983." 386 U.S. at 557, 87 S.Ct. at 1219. The Court observed that "a police officer (should not be) charged with predicting the future course of constitutional law." Id.

More recently in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), a § 1983 action against the Governor of Ohio and various personnel connected with the Ohio National Guard arising out of the May 1970 shootings at Kent State University, the Supreme Court held that a qualified immunity existed for the defendant governmental officials. The Court described the immunity essentially in terms of a good-faith defense:

(I)n varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation...