Palmentere v. Campbell

• Decision Date: 10 May 1962
• Docket Number: No. 13466-3.,13466-3.
• Citation: 205 F. Supp. 261
• Parties: Baldasaro PALMENTERE, Plaintiff, v. William J. CAMPBELL, Leroy Cox, James E. Gardiner, John C. Hockery, Gordon Kellner, Russell G. Kincaid, Alfred Lighton, Ralph G. Martin, Robert M. Rogers, Raymond Schmidt, Clarence R. Sifers, William R. Stanley, W. I. Hockaday, Robert Dowd, Don Hutson, Frank Bennett and Thomas Madigan, Defendants.
• Court: U.S. District Court — Western District of Missouri

205 F. Supp. 261

Baldasaro PALMENTERE, Plaintiff, v. William J. CAMPBELL, Leroy Cox, James E. Gardiner, John C. Hockery, Gordon Kellner, Russell G. Kincaid, Alfred Lighton, Ralph G. Martin, Robert M. Rogers, Raymond Schmidt, Clarence R. Sifers, William R. Stanley, W. I. Hockaday, Robert Dowd, Don Hutson, Frank Bennett and Thomas Madigan, Defendants.

No. 13466-3.

United States District Court W. D. Missouri, W. D.

May 10, 1962.

William J. Gilwee, Kansas City, Mo., for plaintiff.

Watson, Ess, Marshall & Enggas, by Douglas Stripp, Kansas City, Mo., for defendants Campbell, Cox, Gardiner, Kellner, Schmidt and Sifers.

Robert M. Van Horn, Kansas City, Mo., for defendant Don Hutson.

Sprinkle, Carter, Sprinkle & Larson by Roy A. Larson, Jr., and Kuraner, Freeman, Kuraner, Oberlander & Lamkin, by George O'Laughlin, Kansas City, Mo., for defendant Stanley.

Sebree, Shook, Hardy & Ottman, by David R. Hardy, and Sheffrey, Ryder & Skeer, by David Skeer, Kansas City, Mo., for defendant Lighton.

Knipmeyer, McCann & Millett, by Lowell E. Knipmeyer, Kansas City, Mo., for defendant Martin.

Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, Mo., for defendants Hockery, Rogers, Kincaid, Campbell, Stanley and Cox.

W. H. Bates, Kansas City, Mo., for defendants Hockaday, Dowd, Bennett and Madigan.

DUNCAN, Chief Judge.

Plaintiff instituted this suit against the defendants under § 1983 Title 42 U.S.C.A.¹ to recover damages claimed to have been sustained by him as a result of the defendants causing his illegal arrest while under subpoena awaiting to testify before the state grand jury in Kansas City, Jackson County, Missouri.

The defendants, William J. Campbell, Leroy Cox, James E. Gardiner, John C. Hockery, Gordon Kellner, Russell G. Kincaid, Alfred Lighton, Ralph G. Martin, Robert M. Rogers, Raymond Schmidt, Clarence R. Sifers, and William R. Stanley, were members of the duly qualified and acting grand jury for Jackson County, Missouri; the defendant Hockaday was the acting chief of police of Kansas City; the defendants Dowd, Bennett and Madigan were members of the police department of Kansas City, Missouri, duly assigned to the detective bureau or department; and the defendant Don Hutson was an assistant prosecuting attorney of Jackson County, Missouri.

Plaintiff alleged that on or about April 20, 1961, the defendants grand jurors and the defendant Don Hutson, assistant prosecuting attorney, caused the plaintiff to be served with a subpoena commanding him to appear as a witness before the grand jury on April 21, 1961, and that he responded to said subpoena on said date, but was excused by the grand jury with instructions to appear on April 24, 1961.

That on April 24, 1961, upon the arrival of the plaintiff at the time and place designated in the subpoena, the above named grand jurors and Don Hutson, assistant prosecuting attorney, caused the plaintiff to be directed to a witness room adjoining a room which was occupied by the defendants grand jurors and Hutson. That while he "was waiting to be called as a witness and not committing any felony, treason or breach of the peace", he was, at the direction of the above named grand jurors, Don Hutson and E. I. Hockaday, forcibly arrested by the defendants, Robert Dowd, Frank Bennett and Thomas Madigan, without any warrant of arrest, and removed to the jail in Kansas City, Missouri, located in the Police Headquarters Building.

Plaintiff asserts that after having been arrested without a warrant, he was detained in the City Jail at the direction of the defendants, and was there required to submit to "being photographed with a police bertillon number across his chest and his fingerprints taken to be distributed among law enforcement agencies for the purpose of bringing his criminal record up to date; * * *".

Plaintiff maintains that he was "detained and imprisoned by the defendants and all of them upon the purported justification that he had been arrested and was held for `investigation', * * *". Further, that after he "had been detained, confined, imprisoned and deprived of his liberty for a long period of time he was released and discharged from custody of defendants by Writ of Habeas Corpus," granted by a Circuit Judge of Jackson County, Missouri; that he "was not then charged with a crime or violation of ordinance, nor has he subsequently been so charged."

He further alleges that the acts about which he complains in bringing about and causing his arrest by the defendants "constituted a violation of the Constitution and laws of the United States of America, in that the plaintiff, was deprived by the defendants, and each of them, of his right not to be deprived of his life, liberty and property, without due process of law, all in violation of Amendments V and XIV of the Constitution of the United States and 28 U.S.C.A., Section 1343 and 42 U.S.C.A. Section 1983."

He alleges that his arrest was clearly in violation of Section 491.220 RSMo 1949, V.A.M.S., which is as follows:

"Witnesses shall be privileged from arrest in all cases, except treason, felony and breach of the peace, during their attendance on any court, or where their attendance is required by subpoena, and in going to and returning thence, allowing one day for every twenty miles from their abode."

Plaintiff further cites Section 540.180 RSMo 1949, V.A.M.S.:

"If any witness, duly summoned to appear and testify before a grand jury, shall fail or refuse to obey, the court shall cause compulsory process to be issued to enforce his attendance, and may punish the delinquent in the same manner and upon like proceedings as provided by law for disobedience of a subpoena issued out of such court in other cases."

The defendants, members of the grand jury, have filed separate motions, which are practically identical in language and relief sought, in which they say that they are ready and willing to defend themselves on the merits of this cause of action both as to the facts and law, but that they cannot do so unless they may reveal to their counsel information to be embodied in pleadings, testify concerning, or otherwise used in such manner as may be necessary to a proper defense, and otherwise make full use of any and all proceedings and deliberations of the grand jury necessary to their defense. The prayer of the motion is:

"WHEREFORE, these defendants move the Court for an order, (1) declaring that their obligation of secrecy as grand jurors does not prohibit them from revealing to counsel, embodying in pleadings, testifying concerning, or otherwise using in such manner as may be necessary to a proper defense herein, occurrences before and the actions of said Grand Jury, the counsel of the state, of their fellows and themselves, the manner of voting and the opinions of grand jurors on any questions before them, all as covered by said oath or secrecy and the aforesaid statutes, or in the alternative, (2) dismissing the plaintiff's complaint against these defendants for the reason that the aforesaid statutes and oath of secrecy prevent them from offering a proper defense and therefore the maintenance of this action would result in a deprivation of these defendants' property without due process of law in violation of the Constitution and laws of the United States."

The oath to be administered to state grand jurors, Section 540.080 RSMo 1949, V.A.M.S., provides:

"You do solemnly swear you will diligently inquire and true presentment make, according to your charge, of all offenses against the laws of the state committed or triable in this county of which you have or can obtain legal evidence; the counsel of your state, your fellows and your own, you shall truly keep secret. You further swear that you will present no one for any hatred, malice or ill-will; neither will you leave unpresented any one for love, fear, favor or affection, or for any reward or the hope or promise thereof, but that you will present things truly as they come to your knowledge, to the best of your understanding, according to the laws of this state, so help you God."

Section 540.120 RSMo 1949, V.A.M.S., provides:

"Any person having taken said oath as aforesaid, who shall willfully violate the same, shall be adjudged guilty of a misdemeanor, and, upon conviction, be punished by a fine of not less than one hundred nor more than two hundred dollars, or by imprisonment in the county jail not exceeding three months, or by both such fine and imprisonment."

Section 540.300 provides:

"Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such jury is consistent with or different from the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person, upon a complaint against such person for perjury, or upon his trial for such offense."

Section 540.310 provides:

"No member of a grand jury shall be obliged or allowed to testify or declare in what manner he or any other member of the grand jury voted on any question before them, or what opinions were expressed by any juror in relation to any such question."

And, finally, with respect to the question of secrecy, Section 540.320 provides:

"No grand juror shall disclose any evidence given before the grand jury, nor the name of any witness who appeared before them, except when lawfully required to testify as a witness in relation thereto; nor shall he disclose the fact of any indictment having been found against any person for a felony, not in actual confinement, until the defendant shall have been arrested thereon. Any juror violating the provisions of this section shall be deemed guilty of a misdemeanor."

The only question for determination by this court at this time is whether the grand jury may be freed from their oath of secrecy under the statute so that they may defend themselves against the plaintiff's charge of violating his civil rights. The exact...