Smith v. Ross, 73-1237.

• Decision Date: 18 July 1973
• Docket Number: No. 73-1237.,73-1237.
• Citation: 482 F.2d 33
• Parties: Arthur F. SMITH, Jr., et al., Plaintiffs-Appellants, v. Max ROSS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

482 F.2d 33 (1973)

Arthur F. SMITH, Jr., et al., Plaintiffs-Appellants, v. Max ROSS et al., Defendants-Appellees.

No. 73-1237.

United States Court of Appeals, Sixth Circuit.

Argued June 6, 1973.

Decided July 18, 1973.

Harland M. Britz, Toledo, Ohio, for plaintiffs-appellants; Britz & Zemmelman, Toledo, Ohio, on brief.

Ellis F. Robinson, Toledo, Ohio, for defendants-appellees; Thomas L. Dalrymple, Robert J. Scheer, Toledo, Ohio, on brief for appellee Ross; Fuller, Henry, Hodge & Snyder, Toledo, Ohio, of counsel for appellee Ross; Shumaker, Loop & Kendrick, John W. Hackett, Jr., Jon C. MacKay, Toledo, Ohio, on brief for appellee Ronald Schreiderer; Ritter, Boesel, Robinson & Marsh, Toledo, Ohio, on brief for appellee Celina Mutual Ins. Co.

Before PECK and McCREE, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

PER CURIAM.

Appellants brought this action for damages under 42 U.S.C. §§ 1983, 1985(3) (1970) against the Sheriff of Marion County, Ohio, his deputy, his bonding company, and the mayor and city council of Prospect, Ohio. The amended complaint asserted that appellants were two members of an interracial four-piece musical band that had rented a building in Prospect on August 27, 1970, from one Jack Schmittauer to use for rehearsal purposes. It charged that on September 2, 1970, deputy Schreiderer told appellants' landlord that he would have to evict them because black residents were not welcome in Prospect and that the townspeople would burn down the building if Schmittauer permitted them to remain. It also charged that Schmittauer eventually was caused to evict appellants when Schreiderer threatened to withdraw police protection. These acts, the complaint alleged, were done under color of state law and were part of a conspiracy on the part of the deputy (for whose acts his superior, the Sheriff, was responsible) and the mayor and city council of Prospect to evict appellants, who are black, solely because of their race. The complaint further asserted that plaintiffs were required by their landlord to vacate because of defendants' acts, and that they did vacate, and that they were threatened and maligned by the deputy during the course of these events. The complaint also contained a claim that about ten months after these incidents occurred, deputy Schreiderer was involved in another incident with plaintiff Smith at a college campus, and that the deputy caused plaintiff's car to be stopped and searched for the purpose of discrediting him with respect to this lawsuit. Compensatory and punitive damages were sought.

The action proceeded to trial without a jury, and at the conclusion of appellants' case, the court granted the motions of defendants mayor and city councilmen to dismiss the complaint with respect to them, and granted the motion of the remaining defendants to dismiss the claim founded on the campus incident. No appeal has been taken from these dismissals.

At trial, appellants' witnesses testified that deputy Schreiderer, upon notification of a disturbance in Prospect, and after plaintiffs had reported that someone had thrown rocks at their building, went to the rented premises with other deputies and attempted to force appellants to leave by threatening them with imprisonment if they did not, by telling them that they had been evicted by their landlord when in fact they had not, and by indicating that they would not be protected by the police in the event the townspeople attempted to do violence to them. Further, appellants' evidence tended to show that the deputy on two occasions told the landlord to evict appellants, that he threatened the landlord by referring to rumors that the townspeople would burn the building and by stating that the building would be condemned, and that he gave the landlord erroneous information that appellants had criminal records for narcotics violations, when in fact appellants had no such records. Appellants also attempted to establish that they eventually vacated the premises, two weeks after these incidents occurred, because they were afraid for their personal safety and for the safety of their landlord's property because of the threats of deputy Schreiderer. Appellants' attempts to prove the reason for their abandonment of the premises were hampered when the district court inexplicably prevented plaintiff Smith from testifying with respect to the reason he vacated the premises. Appellants and the landlord did agree that throughout these occurrences, contrary to the allegation in the complaint that the landlord was eventually forced to evict the band, the landlord was neutral and did not care whether appellants remained or vacated, as long as they did nothing illegal or did not otherwise create a disturbance.

The testimony of the deputy and of defendants' witnesses showed that the deputy had received reports of citizen complaints in Prospect that appellants were wiping their feet on an American flag (a charge that the district court found to be untrue) and were playing loud music, and that he had heard rumors that the townspeople were prepared to don white sheets and burn down the building. In contradiction of appellants' testimony, the deputy claimed that the landlord indicated he would evict them if they did not move out, and the deputy expressly denied having told appellant Smith that he would be jailed if he entered the building. He denied having said anything to appellants about their having been evicted, denied having told the landlord to evict appellants or that he would, and testified that the only criminal records involving appellants he furnished the landlord were given to him in response to his official inquiry. He also testified that he told appellants that they would receive the same police protection enjoyed by the other townspeople but indicated that his ability to protect them was limited. The town marshal corroborated Schreiderer's testimony in many respects, and also testified that the deputy told appellants that he would prefer that they vacate because he was not sure he could protect them from the townspeople. The marshal stated that the deputy told appellants that he would do what he could to protect them, and that a patrol car remained in the vicinity during the night. The deputy did, according to the marshal, tell the landlord that it might be better if appellants stayed out of the building until everyone cooled down, but he agreed that appellants had every right to remain in the building if they wanted to.

The district court found that deputy Schreiderer "did try to persuade Schmittauer to persuade the plaintiffs to leave and did himself try to persuade, by less than diplomatic tact, the plaintiffs to leave." The court further determined:

The motivating force in denying plaintiffs the free use of their property was not the Sheriff or his deputies, but the resentful townspeople of Prospect, none of whom are named as a party to this suit.

The plaintiffs thereafter voluntarily vacated the premises.

Therefore, the Court concludes that as a peace officer, Deputy Schreiderer was under a mandatory duty to maintain peace in Prospect. (Ohio Revised Code, § 509.10, "* * * and shall generally keep the peace in his county").

It is axiomatic that, to prevent a disturbance, it is best to remove the source. That Deputy Schreiderer used tactless persuasion is merely a threat that was not carried out. Threatened deprivation of civil rights is not protected under 42 U.S.C., §§ 1983, 1985(3). The threats did not induce fear in the plaintiffs, who remained in occupancy of the premises for a significant time after the complaints were made.

There was no conspiracy to deprive plaintiffs of their civil rights based solely on reasons of race.

No rights were in fact denied. The inconvenience of discussion and meetings to settle a potential disturbance was merely that — an inconvenience.

There was no intent to discriminate on the part of the remaining defendants and there was no injury.

The Court concludes that Deputy

...