McIver v. Russell

• Decision Date: 31 January 1967
• Docket Number: Civ. No. 17457.
• Citation: 264 F. Supp. 22
• Parties: Benjamin F. McIVER v. Glen RUSSELL, Joseph Mullin, Joseph Dalton, Milton Hipsley, Joseph Cole and Edward Eben.
• Court: U.S. District Court — District of Maryland

264 F. Supp. 22

Benjamin F. McIVER v. Glen RUSSELL, Joseph Mullin, Joseph Dalton, Milton Hipsley, Joseph Cole and Edward Eben.

Civ. No. 17457.

United States District Court D. Maryland.

January 31, 1967.

COPYRIGHT MATERIAL OMITTED

Gerald A. Smith and Juanita Mitchell, Baltimore, Md., Jack Greenberg, Michael Meltsner, and Charles S. Ralston, New York City, for plaintiff.

Paul Berman and Bayard Z. Hochberg, Baltimore, Md., for defendants.

FRANK A. KAUFMAN, District Judge.

This is a civil action for recovery of damages. Plaintiff alleges that on June 20, 1964, the five defendants, police officers of Baltimore City, unlawfully, willfully, intentionally and with malice beat and struck plaintiff and without justification invaded his home, damaged and destroyed his household furnishings, and arrested him; that he was then taken from his home and transported to the Southwestern District Police Station in Baltimore where he was confined to jail and charged with disorderly conduct, resisting arrest, and assaults on two of the defendants, Officers Russell and Cole, who were the complaining officers; and that on July 14, 1964, the Grand Jury for the Criminal Court of Baltimore dismissed presentments for indictments on those charges. Defendants have moved to dismiss the complaint.

The complaint sets forth four counts, each of which is factually grounded in the above alleged incidents. The first count states an action for damages to redress deprivation of constitutional rights. Jurisdiction as to this count is invoked under 28 U.S.C. §§ 1331, 1343(3) and (4), and 42 U.S.C. § 1988. The other three counts state common law actions for assault and battery (second count), false arrest and imprisonment (third count), and malicious prosecution (fourth count). The doctrine of pendent jurisdiction is invoked with regard to these latter three counts.

I.

Plaintiff filed his complaint on July 14, 1966, more than one but less than three years after the alleged incident. Defendants attack the first and second counts as being barred by limitations. Plaintiff concedes that the second count, which sets forth a common law action for assault and battery, is barred by the one-year provision of the Maryland statute of limitations applicable to such an action. Defendants' motion to dismiss that count is accordingly granted.

The first count states a federal statutory action for damages under 42 U.S.C. § 1983¹ for deprivation of civil rights. No federal statute provides any limitations period with regard to 42 U.S.C. § 1983. Therefore: "The time for filing an action under the Federal Civil Rights Act is controlled by the applicable state statute of limitations." West v. Board of Educ., 165 F.Supp. 382, 387 (D.Md.1958).² Statutory provisions applicable to the first count are found in Article 57, Section 1, of the Maryland Code.³ The question in this case is which of the limitation periods set forth in Section 1 of Article 57 should be applied to the first count.⁴ Defendants contend that the factual allegations of that count are grounded upon allegedly vicious assaults by the defendant officers; that for this reason the count is more nearly equivalent to an action of assault and battery than it is to any of the other actions referred to in Article 57; and that the count is barred by the one-year limitations provision applicable to assault and battery. Plaintiff, on the other hand, has contended that the three-year limitations period provided in Section 1 of Article 57 is applicable to the first count because that count is an action for violation of the twenty-third article of the Maryland Declaration of Rights. In addition, it can be argued that the count sounds more in illegal arrest, or false imprisonment, or malicious prosecution⁵ than it does in assault and battery and that therefore the three-year limitations period of Section 1 of Article 57 is applicable.

The first count states a cause of action based upon factual allegations which sound in each of the common law torts mentioned above—that is, assault and battery, illegal arrest, false imprisonment and malicious prosecution.⁶ Therefore, if there were no reference in Section 1 of Article 57 to Article 23 of the Maryland Declaration of Rights, it would be necessary either to determine that the first count sounds more in one or certain of those common law torts than in the remaining torts and to apply to the entire first count the limitations applicable to the former tort or torts, or to split the first count into two parts and to hold that part pertaining to assault and battery barred by the one-year provision of Section 1 of Article 57 and the remainder, pertaining to illegal arrest, false imprisonment and malicious prosecution,⁷ not barred because of the three-year provision of Section 1 of Article 57. In Smith v. Cremins, 308 F.2d 187, 98 A.L.R.2d 1154 (9th Cir. 1962), the Court, in a case involving a problem similar to the one encountered in this case, stated:

According to appellees' analysis, the single cause of action under the Civil Rights Act alleged in the complaint includes three distinct causes of action under State law and calls for the application of two distinct State statutes of limitations * * *. Inconsistency and confusion would result if the single cause of action created by Congress were fragmented in accordance with analogies drawn to rights created by state law and the several differing periods of limitation applicable to each state-created right were applied to the single federal cause of action. 308 F.2d at 190.

The same problems would be present in this case if a "splitting" approach were adopted.

However, the reference in Section 1 of Article 57 to Article 23 of the Declaration of Rights makes it unnecessary either to determine in what common law tort or torts count one sounds most, or to split that count into several analagous common law torts for the purpose of determining applicable limitations. In the Court's opinion, the reference to Article 23 of the Declaration of Rights provides the most satisfactory solution to the limitations problem posed in this case.⁸

Article 23 of the Maryland Declaration of Rights provides:

That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the Land.

The Maryland Court of Appeals has construed "Law of the Land," as those words appear in Article 23, to be synonymous with "due process of law," as that phrase is used in the Fourteenth Amendment. Oursler v. Tawes, 178 Md. 471, 483, 13 A.2d 763, 768 (1940); County Comm'rs of Anne Arundel County v. English, 182 Md. 514, 521, 35 A.2d 135, 139, 150 A.L.R. 842 (1943). The Maryland Court of Appeals has further held that in construing Article 23 "the decisions of the United States Supreme Court on the Fourteenth Amendment are `practically direct authorities.'" Goldsmith v. Mead Johnson & Co., 176 Md. 682, 686-687, 7 A.2d 176, 178, 125 A.L.R. 1339 (1939); Home Utilities Co., Inc. v. Revere Copper & Brass, Inc., 209 Md. 610, 614, 122 A.2d 109, 110-111 (1956). See Niles, Maryland Constitutional Law 46-48 (1915). The United States Supreme Court has held that acts of the same general type as are charged against the defendants in this case are violative of federal due process. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); cf. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). It would therefore seem to follow that such acts, if proved, would also be violative of Article 23 of the Maryland Declaration of Rights.

There does not appear to be any Maryland statute, comparable to the federal enforcement provision set out in 42 U.S.C. § 1983, which implements private enforcement of the rights secured by Article 23 of the Declaration of Rights. Further, there appear to be no Maryland cases which have determined or even discussed whether the State constitutional rights secured by Article 23, or by any other provision of the Declaration of Rights, may be enforced in a civil action for damages in the absence of such a statute. This is a matter which touches the roots of constitutional theory and one which remains to this day unsettled as a general proposition of constitutional law.⁹

The reference in Section 1 of Article 57 to Article 23 of the Declaration of Rights was originally included by virtue of an amendment enacted at a Special Session of the General Assembly of Maryland held at Frederick, Maryland, in the first year of the Civil War.¹⁰ Two other enactments of that Special Session involved actions for violations of Article 23: one related to actions which might be maintained by executors and administrators¹¹ and the other to attachments against non-resident and absconding debtors.¹² All three 1861 enactments clearly contemplated the existence of actions for violation of Article 23. The preamble to chapter 77 of the 1861 amendments,¹³ for example, refers to "actions for wrongs affecting the personal rights of the citizen," and Section 2 of that chapter refers to "attachment on the amount of damages claimed in the declaration." (Emphasis added). These 1861 amendments relating to executors and administrators, and to attachments, unlike the amendment to the statute of limitations, have been repealed.¹⁴ However, before the repeal in 1929 of the 1861 amendment relating to executors and administrators, the Maryland Court of Appeals spoke in two cases about the amendment.

In Clark v. Carroll, 59 Md. 180 (1882), the Court held that that amendment was to be given a narrow construction, stating that:

The origin and object of the law is well understood. It was passed at a period of great excitement. The late civil war had just begun, and this Act was intended to meet a supposed exigency for greater security against the wrongs mentioned in the Act. Arbitrary

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