McShane v. Moldovan, 10703.

Citation172 F.2d 1016
Decision Date08 February 1949
Docket NumberNo. 10703.,10703.
PartiesMcSHANE v. MOLDOVAN et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Hugh Davidson, of Detroit, Mich. (Hugh Davidson and Helen A. Theut, both of Detroit, Mich, on the brief), for appellant.

Emil Wm. Colombo, of Detroit, Mich., for appellees.

Before SIMONS, MARTIN, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

This is an appeal from dismissal of a complaint seeking damages against appellees for their alleged wrongful conduct in arresting and imprisoning appellant and causing her to be unlawfully tried in a criminal case resulting in deprivation of her constitutional rights under the Fourteenth Amendment to the Constitution of the United States.

Appellant brought her action in the district court, charging appellees with conspiring to obstruct and defeat the due course of justice in the State of Michigan, with intent to deny to her the equal protection of the laws, and for the purpose of depriving her of her right to be tried in accordance with due process of law. On motion of counsel for appellees, the district court dismissed the complaint on the ground that appellant did not state a cause of action; and she thereafter appealed.

In appellant's complaint, she alleged that the conduct of appellees was willful and malicious and designed to deprive her of her rights, privileges, and immunities as secured by the Fourteenth Amendment to the Constitution of the United States. She claimed that pursuant to the conspiracy on the part of a justice of the peace, a complaining witness, a constable, and others, she was arrested in her home without a warrant on a charge of assault, contrary to the laws and constitution of the State of Michigan. She asserts that she demanded a jury trial by an impartial jury, to which she was entitled by the laws and constitution of the State of Michigan; that the justice of the peace was thereupon required by law to direct a disinterested constable or other person to write down the names of eighteen inhabitants of Wayne County qualified as jurors; that it was the duty of the constable thereafter to select persons for jury service without favor or partiality to either party, so that from such list, the People, on the one hand, and the appellant, on the other, should have the privilege of striking six names each from such list, leaving six names thereon, which would afford to appellant, had the other provisions of the law been complied with, an impartial jury in accordance with the laws of the state. Appellant, however, alleged that instead of directing a disinterested person or constable to prepare the jury list, the justice of the peace, acting pursuant to the conspiracy, directed the constable in question to prepare the list; that such constable was also a party to the conspiracy, together with the complaining witness and the justice of the peace, and pursuant to the conspiracy, fraudulently prepared a list, in which all but two competent jurors were excluded; that, in lieu of competent jurors, the appellees unlawfully conspired together and caused to be selected and placed upon the jury persons who were under political obligation to appellees and who were known to be hostile to appellant; that, as a result, appellant was unlawfully imprisoned; that she was deprived of her right to be tried according to due process of law; that she suffered an illegal conviction and sentence; and was required to appeal her case to the state circuit court, where, before an impartial jury, she was finally acquitted.

The Fourteenth Amendment, in so far as here applicable, provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Appellant asserted jurisdiction in the district court over her action by virtue of Title 28 U.S.C.A. § 41(14)1, which provides: "Suits to redress deprivation of civil rights. Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States."

Title 8 U.S.C.A. §§ 43 and 47, known as the Civil Rights Statutes, under which complainant proceeded in this case, give the right of a civil action for deprivation of rights, privileges, and immunities secured by the Constitution.

Title 8 U.S.C.A. § 43, provides: "Civil action for deprivation of rights. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Title 8 U.S.C.A. § 47, in so far as here applicable, provides: "* * * if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; * * * in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."2

At the outset, it is to be observed that the guarantees of the Fourteenth Amendment relate only to action by a state, and not to any action of private individuals. In re Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; National Federation of Railway Workers v. National Mediation Board, 71 U.S.App.D.C., 266, 110 F. 2d 529. Individual invasion of individual rights is not the subject matter of the Amendment; Corrigan v. Buckley, 271 U. S. 323, 46 S.Ct. 521, 70 L.Ed. 969; and such an invasion gives no right of action in the federal courts against acts of private individuals. Where a suit is essentially one for malicious prosecution and false imprisonment carried out by individuals, it is properly enforceable in the state courts. The wrongful act of individuals is a private wrong. The complaint in the instant case was brought on the theory that officials of the State of Michigan, conspiring with others and acting under color of Michigan law, deprived appellant of rights secured to her by the Fourteenth Amendment.3

If the allegations of the complaint are true, appellant was falsely imprisoned and subjected to fraudulent trial in a criminal case and a wrongful conviction by reason of a willful and malicious conspiracy designed to that end and carried out by officials of the State of Michigan and others, acting under the guise of Michigan law. Such conduct would amount to a deprivation of plaintiff's liberty without due process of law.

The issue before us is whether a conspiracy entered into between state officers and others acting under color of state law to deprive a person of constitutional rights secured under the Fourteenth Amendment, and resulting in deprivation of such rights, gives rise to an action for damages against the conspirators under Title 8 U.S.C.A. §§ 43 and 47.4

In arriving at our determination, the most important question for decision is whether the allegations of the complaint disclosed that appellees, in their alleged conduct, acted "under color of law."

The leading case bearing on the issue before us is Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330. There, a sheriff, a deputy sheriff, and a policeman, all law officers of the State of Georgia, arrested a Negro citizen of that state on a warrant, charging him with the theft of a tire. There was evidence that the sheriff had a grudge against the Negro and had threatened to "get" him. They handcuffed the prisoner, and took him by car to the courthouse. When they alighted from the car, the law officers began beating the prisoner with their fists and with a solid bar blackjack weighing two pounds. Although the prisoner was handcuffed at the time, the excuse given for beating him was that he had reached for a gun, and used insulting language. After the prisoner, still handcuffed, had been knocked to the ground, the law enforcement officers continued to beat him for about half an hour until he was unconscious. He was then dragged, feet first, through the courthouse yard into the jail and thrown upon the floor dying. An ambulance was called, and the Negro was removed to a hospital where he died within the hour without regaining consciousness. An indictment was returned against the officers in the federal district court on counts charging a violation of Section 20 of the Criminal Code, Title 18 U.S.C.A., § 52,5 and a conspiracy to violate Section 20, contrary to Section 37 of the Criminal Code, Title 18 U.S.C.A. § 88.6 Section 20, 18 U.S.C.A. § 52, provides: "Depriving citizens of civil rights under color of State laws. Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or...

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    ...Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240, 248; Burt v. City of New York, 2 Cir., 156 F.2d 791, 792; McShane v. Moldovan, 6 Cir., 172 F.2d 1016, 1020; Geach v. Moynahan, 7 Cir., 207 F.2d 714, 717. As enacted in 1871, the provision which is now § 1979 reached acts taken 'under col......
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    ...rights under § 1985. Ortega v. Ragen, 7 Cir., 1954, 216 F.2d 561, cert. den. 349 U.S. 950, 75 S.Ct. 786, 99 L.Ed. 1268; McShane v. Moldovan, 6 Cir., 1949, 172 F.2d 1016; Bottone v. Lindsley, 10 Cir., 1948, 170 F.2d 705, cert. den. 336 U.S. 944, 69 S.Ct. 810, 93 L.Ed. 1101. This latter view ......
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