state action to make the entire conspiracy actionable under
§ 1983. Hampton at 623.
The Hampton case, supra, illustrates the application
of the Kletschkla test. In this case the Seventh Circuit ruled
that the District Court had invaded the province of the jury when
it ruled that plaintiffs had not established a prima facie case
of two conspiracies between federal and state officials. The
first conspiracy therein is factually analogous to plaintiff's
allegations. The defendants in Hampton were charged with planning
a raid, and raiding the apartment of Fred Hampton and other
members of the Black Panther Party to subvert and eliminate the
Black Panther Party and its members thereby suppressing a vital
black political organization. Hampton, supra at 623.
As the instant motion of the defendants is a pre-
trial, pre-discovery motion, the liberal pleading rules of Conley
v. Gibson, 355 U.S. 41 (1957) apply.
The plaintiffs have alleged acts by city, county,
and state officials and federal officials in furtherance of a
conspiracy and have alleged that the state and the local officials
acting pursuant to state law played a significant sole in the
result.
Specific joint acts of federal officials and state
officials alleged in the complaint include:
(1) The defendants Paul Daly and James Rose
met with certain Albany City Police
officials on September 21, 1981 in the
evening and discussed their joint course
of action with respect to plaintiffs.
2) Defendants Daly or Rose provided informa~
tion to Defendant Donnelly and Defendant
Tanchak to be used in a search warrant
application directed at plaintiff Michelson's
apartment.
3) Federal defendants participated with
other defendants in the raid on plaintiff
Michelson's apartment.
4) Federal defendants conspired with others
to arrest and detain plaintiff Michelson
and others.
5) The federal defendants provided false and
untrue information to State Superintendent
of Police John Connellie and Governor Hugh
Cary that caused them to believe there was
imminent danger of riot.
6) All dants conspired together to
rage participation
in the September 22, 1981 anti-apartheid rally
and neutralize the efforts of the Coalition
Against Apartheid and Racism. ee,
See Complaint, paragraphs 24, 26, 29, 30, 46, 47, 50,
76, 101, 102, 103, 106, 107, 108 and 112.
All the acts of all the defendants including those
in which the federal defendants participated were made under color
of state law. The search warrant application and execution, the
arrest of defendant Michelson and her house guests, and their
detention was made in the context of a state criminal prosecution
for violations of provisions of New York's penal law. There was
no prosecution of plaintiff Michelson or any member of the
Coalition pursuant to any penal law. The complaint clearly
specifies that the state played a ‘significant' role in the
results of the joint federal-state conspiracy. The complaint of
the plaintiffs meets the Kletschka test and states a property
conspiracy claim pursuant to § 1983.
The cases cited by the movants are not to the
contrary. In Seibert v. Baptist, 594 F.2d 423 (5th Cir., 1979)
cert. denied, 446 U.S. 918 (1979) reh. denied, 447 U.S. 930
(1980) “plaintiffs' only claims are that the defendants abused
SU Wake rer a ear ee)
RS SA)! Wace ST
their authority under the federal Internal Revenue code."
Seibert, supra at 429. The Court ruled that there was no
allegation that defendants were acting under color of state law.
In Ryan Vv: Cleveland, 531 F. Supp. 724 (E.D. W.%. 1963) plaintiffs
disagreed with the policies of the Veteran's Administration
towards veterans who claimed to have been exposed to dioxin. No
individual V.A. officials were identified as defendants or served.
The § 1983 conspiracy was dismissed because plaintiffs therein
alleged no state action. (In both of the above cases the courts
dismissed § 1983 and § 1985(3) conspiracy claims.)
District of Columbia v. Carter, 409 U.S. 418, 430
(1973) addresses the unique issue of whether or not the District
of Columbia is a state or territory within the meaning of § 1983.
As the Court ruled the District was not a state, the § 1983 claim
failed because of a lack of state action. Koch Vv; guieback, 316
F.2a 1 (9th Cir., 1963) is a lawsuit against a local draft board
complaining of due process deprivations suffered by plaintiff
while being processed for the Selective Service System. Conspiracy
claims were dismissed because there were not allegations that the
color
defendants operated undewat state law. (Note this Court also
dismissed a § 1985(3) claim for lack of state action; this case
was decided prior to the rule that state action was not necessary
for § 1985(3) claims.) (See Part B of Point I of this memo.)
The complaint of the plaintiffs states a proper
conspiracy claim pursuant to 42 U.8.C. § 1983-
siete an rn
lc LY hel aed UT
aS ee eel ee |
'B. THE FEDERAL DEFENDANTS ARE LIABLE UNDER 42 U.S.C.
§1985(3)
In Griffen v. Breckenridge, 403 U.S. 88 (1971),
the United States Supreme Court upheld a conspiracy cause
of action pursuant to 42 U.S.C. 81985(3) and established
four (4) requisites to an action pursuant to this statute.
The Griffen criteria are:
(1) the defendants must conspire
(2) for the purpose of depriving, either directly
or indirectly, any person or class of
persons of the equal protection of the
laws, or of equal privileges and immunities
under the laws; and
(3) the defendants must act in furtherance of
the object of the conspiracy, whereby
(4) one was (a) injured in his person or
property or (b) deprived of having and
exercising any right or privelege of a
citizen of the United States.
It is established that Federal officials are
persons within the meaning of §$1985(3) and regardless of who
the conspirators are, they should be liable. See eg. Hampton
v. Hanrahan, 600 F 2d 600 (7th Cir., 1979), Novotny v. Great
American Federal Savings and Loan Association, 584 F.2d 1235
(3a Cir., 1978), rev'd on other grounds, 442 U.S. 366 (1979);
Founding Church of Scientology v. Director, F.B.1., 459 F.
Supp. 748 (D.D.C. 1978).
The issue of $1985(3) liability in the present
case centers on the second criteria above. Griffen construed
$1985(3) to provide relief where the conspiracy was motivated
by "some racial, or perhaps otherwise class-based invidiously
discriminatory motivation." Griffen, supra at 102. Griffen
specifically left undecided the question of what non-racially
motivated conspiracies were proper for $1985(3) liability.
See Griffen, supra at 102 , fn. 9.
A subsequent Supreme Court case, Great American
Federal Savings and Loan Association v. Novotny, 442 U.S. 366,
370, fn. 6 (1979) suggests that “fundamental rights derived
from the Constitution “will provide a cause of action under
$1985(3) where the conspiracy is aimed at a person or persons
who are part of a class that seeks to exercise their rights.
In the years since Griffen and Novotny lower courts
have disagreed concerning which conspiracies motivated by
non-racial individiously discriminatory animus fall within
the ambient of 1985(3) protection. No post-Griffen court has
found that $1985(3) is limited exclusively to racial situations.
See Canlis v. San Joaquin Sherriff's Posse Comitatus, 641 F.2d
711 (9th Cir., 1981), cert. denied 454 U.S. 367 (1981).
The Second Circuit to date has not taken a position
with respect to the scope of 81985(3) conspiracies. Regan v.
Sullivan 557 F.2d 300, 308, (2nd Cir., 1977). Two other
Second Circuit cases are not to the contrary. Dacey v. Dorsey
568 F.2d 275 (2nd Cir., 1971) rejected a $1985(3) claim for
failing to allege a conspiracy. Weise v. Syracuse University,
522 F.2d 397 (2nd Cir., 1975) reinstated and remanded a #1985(3).
claim that had been erroneously dismissed for failing to
allege state action and for stating insufficient factual
allegations of conspiracy.
Judge Munson of this district did find that the
complaint in Thompson v. State of New York, 487 F. Supp 212,
227- -~228 (N.D.N.Y., 1979) stated a $1985(3) claim because of
buf ficient allegations of a racially-motivated animus to
deprive plaintiffs of equal enjoyment of legal rights. This
decision of Judge Munson did not address the issue of what
other class-based motivations are subject to a $1985(3)
claim for relief.
The Coalition Against Apartheid and Racism alleges
that they are the victims of a class-based animus in that
there was a conspiracy by various governmental officers to
prevent their exercise of a fundamental constitutional right.
The federal defendants together with the other defendants
interfered and attempted to interfere with the Coalition's
efforts to mount a protest of national significance against
the presence in Albany, New York of representatives from
apartheid South Africa, the only country in the world where
racism is legal.
Plaintiff Coalition and plaintiff Michelson base
their $1985(3) claim on the factual allegations of the complaint
which alleges that the defendants conspired to seize and
detain certain protestors to prevent their participation in
a planned demonstration. (See Complaint, paragraphs 50 & 51.) They also
allege that this conspiracy was motivated by a concern about the
"size of the planned demonstration and unprecedented political
clout of the Coalition" " and a desire to "discourage participation"
schistnainccaniscctaecnian tO
in the anti-apartheid rally. (See Complaint, paragraph 101.)
iamitansicconornanscenncomnenen eS
10
These are allegations of animus to the plan and strategy of
the members, associates and affiliates of the Coalition Against
Apartheid who had been organizing anti-apartheid opposition
since July of 1981. (See Complaint, paragraphs 94 to 101.)
This type of animus was specifically discussed in
Glasson. v. City of Louisville, 518 F.2d 899 (6th Cir., 1975)
cert den. 423 U.S. 930 (1975) wherein a § 1985(3) claim was
upheld in a conspiracy by government officials to prevent
planned, first amendment, lawful activity of anti-government
protestors, See also, Cameron v. Brock, 473 F.2d 608 (6th Cir.,
1973); and Richardson v. Miller, 446 F.2d 1257 (3rd Cir., 1971).
The above cases state that a class~based animus
towards first amendment conduct and activities meets the
Novotny, supra, requirements that § 1985(3) conspiracies are
alleged when there is animus directed towards any of the
“fundamental rights derived from the Constitution.”
Therefore, the complaint herein properly states 4
§ 1985(3) conspiracy cause of action.
The memorandum of the defendants implies that the
class did not coalesce until the alleged illegal conduct of the
defendants occurred. This could not be further from the truth.
This class of anti-apartheid protestors began organizing in
July of 1981. The Coalition and its national affiliate
(S.A.R.T.) Stop the Apartheid Rugby Team had stated purposes
and goals. This all existed prior to September 21, and
September 22, 1981 and was independent of any actions taken
oer contemplated by the defendants at that time. In Lopez Vv.
Arrowhead, 523 F.2d 924 (9th Cir., 1975), relied on by the
Ets
ll
defendants the plaintiffs were a class of victims who did not
voauive certain employment from the defendants. Their common
class identity was that they were victimized by alleged tortious
conduct of the defendants. This is not analogous to the allega~-
tions herein of plaintiff's complaint.
Likewise, Rodgers v. Tolson, 582 F.2d 315 (4th Cir.,
1978) cited by defendant is not an analogous situation. In
Rodgers the two plaintiffs were husband and wife and were com-
plaining of a certain sewer system installed across the northwest
side of their property which allegedly yielded no benefit. In
that case, the court held that as the terms which were used to
describe the plaintiffs included no one else and as not even
the plaintiffs could identify any other targets of this alleged
animus, there was no § 1985(3) conspiracy cause of action.
The complaint herein is distinguished because there
is not an allegation of a one-person class but rather allegations
of a group of people subject to the animus of the defendants,
The defendants further postulate that the § 1985(3)
claim must fail because it lacks allegation of invidious
discrimination. (Emphasis used in defendants' menforandum.) A
common meaning of invidious discrimination is discrimination or
disparate treatment that is offensive. The allegations of the
complaint allege a course of conduct by the defendants that is
in derrogation of fundamental constitutional rights.
The complaint alleges that the defendants conspired
to obtain a search warrant based on untrue and perjured statements,
kept people in jail unlawfully, spread false rumors of violence
and planned confrontations, and engaged in a general course of
lenge aa OR LOAN A
12
conduct designed to interfere or thwart a demonstration of
national significance.
These factual allegations of defendants’ gross
disregard of plaintiffs’ rights in clear violation of the
constitution and laws of the United States and the protections
commonly afforded other protestors meets any requirement to
articulate the invidious nature of defendants’ actions.
The cases relied on by the defendant are not to the
contrary. A_& A Concrete Inc: Vv: White Mountain Apache Tribe, 676
F.2d 1330 (9th Cir., 1982) alleges that non-Indian defendants sued
in tribal courts were treated like Indian defendants. The
Court ruled there must be facts of invidiousness to support the
plaintiffs’ § 1985(3) conspiracy claims. Aldabe v. Adlabe, 616
F.2d 1089 (9th Cir., 1980) is a pro se complaint complaining of an
unfair divorce settlement. Ligon v. State, 448 F. Supp. 935 (D.
Md., 1977) complains of a rezoning of a single parcel. In all of
these cases there is alleged no course of conduct that is in
derrogation of any fundamental right or any right or privilege
commonly afforded to another group or individual.
The complaint makes quite clear the invidious nature
of defendants’ conduct. The complaint properly states 4 § 1985(3)
claim and the defendants should be directed to answer forthwith.
“Ryo ES®
resins NMA NRE NANA ATTAIN EUR IT SOSNS
LEVANTE : Fa ASAE NNN aRNPOON RNAI ONCHincbatrenusnveMANTaOMaeUEN ASAE ACA anti ctv i RAH UDA RAMAN SEN HL
Ls
POINT II: THE COMPLAINT STATES A CLAIM
UNDER 42 U.S.C. § 1986.
The plaintiffs agree that this cause of action is
derivative of a § 1985 conspiracy claim, Plaintiffs' complaint
states a § 1985(3) complaint and therefore meets the necessary
statutory pre-requisite. (See Point I, Part B of this memo. )
Plaintiffs' complaint alleges that certain aspects
of the conspiracy by the defendants is on-going. (See Point V
of this memo, pages 22 to 26 .) Therefore, the one (1) year
statute of limitations has not yet run and the Court cannot hold
that the action is time barred. Thompson v. State, 487 F. Supp.
(W.01 WY.) 2979) «
14
POINT III; THE FEDERAL DEFENDANTS ARE NOT
ABSOLUTELY IMMUNE FROM LIABILITY FOR COMMON
LAW TORTS.
The federal defendants invoke Barr v. Matteo,
360 U.S. 564 (1959), and claim they are absolutely immune
from liability for common law torts.
The significance and holding in Barr was closely
analyzed in Butz v. Economu, 438 U.S. 478 (1978). In Butz
the Court rejected the argument that federal officials are
all absolutely immune from “constitutional” tort liability.
Id at 505-506. "a federal official may not with impunity
ignore the limitations which the controlling law has placed
on his powers." Id at 488. However, the decision was
expressly limited to constitutional violations, and did not
address the level of immunity of federal officials for common
law torts. Id at 495, foot note 22.
Plaintiff has found no Supreme Court decision which
answers the question of immunity of federal officials for
non-constitutional torts.
The law in the Second Circuit is that ‘federal officials
are absolutely immune from liability for “alleged torts based
upon acts committed within the scope of their official duties
requiring the exercise of judgment or discretion." Huntington
Towers Ltd. v. Franklin National Bank, 559 Fad 863, 870 (2d
Cir. 1817);
1S
Plaintiff believes that when this immunity issue is
considered by the Supreme Court, that defendants such as
Daly and Rose will be afforded only qualified immunity from
tort liability.
The Court's analysis of Barr in its Butz v. Economu
opinion reached the conclusion that Barr allowed absolute
immunity only for conduct which was within the scope of the
official's authority (albeit at its outer limit). Butz v.
Economu, supra, 438 U.S. at 489.
Barr did not, therefore, purport to depart from
the general rule, which long prevailed, that a
federal official may not with impunity ignore
the limitations which the controlling law has
placed on his powers. The immunity of federal
executive officials began as a means of protecting
them in the execution of their federal statutory
duties from criminal or civil actions based on
state law, See Osborn v. Bank of the United
States, 9 Wheat. 738, 865-866 (1824). A federal
official who acted outside of his federal statutory
authority would be held strictly liable for his
trespassory acts. For example, Little v. Barreme,
2 Cranch 170 (1804), held the commander of an
American warship liable in damages for the seizure
of a Danish cargo ship on the high seas. Congress
had directed the President to intercept any vessels
reasonably suspected of being en route to a French
port, but the President had authorized the seizure
of suspected vessels whether going to or from
a forbidden destination. The Court, speaking
through Mr. Chief Justice Marshall, held that
the President's instructions could not “change
the nature of the transaction, or legalize an
act which, without those instructions, would have
been a plain trespass.” Id, at 179. Although
there was probable cause to believe that the ship
was engaged in traffic with the French, the
seizure at issue was not among that class of
seizures that the Executive had been authorized
by statute to effect. See also Wise v. Withers,
3 Cranch 331 (1806).
Bates v. Clark, 95 U.S. 204 (1977), was a similar
case. The relevant statute directed seizures of
16
alcoholic, beverages in Indian country, but the
seizure at issue, which was made upon the orders
of a superior, was not made in Indian country.
The “objection fatal to all this class of defenses
is that in that locality (the seizing officers)
were utterly without any authority in the premises"
and hence were answerable in damages. Id., at 209.
As these cases demonstrate, 4 federal official was
protected for action tortious under state law only
if his acts were authorized by controlling federal
law. To make out his defense he must show that
his authority was sufficient in law to protect him.
Cunningham v. Macon & Brunswick R. Co., 109 U.S.
446, 452 (1883); Belkap v. Schild, 161 U.S. 10,
19 (1896). Since an unconstitutional act, even if
authorized by statute, was viewed as not authorized
in contemplation of law, there could be no immunity
defense. See United States v. Lee, 106 U.S. 196,
218-223 (1882); Virginia Coupon Cases, 114 U.S. 269,
295-292 (1885). Butz v. Economu, Supra, 438 U.S.
at 488-490.
The Court in Butz was willing to require federal
officials to account in a court of law for their alleged
constitutional torts. At least constitutional violations were
considered unauthorized "in contemplation of law." The inten-
tional torts of false arrest and imprisonment, malicious
prosecution and abuse of process are similarly acts unauthorized
by law. No federal law permits the commission of these viola-
tions of plaintiff's rights, any more than transgression of
their constitutional equivalents are authorized.
should be waived for intentional torts committed by investigative
or law enforcement officers, including “assault, battery,
false imprisonment, false arrest, abuse of process, OF
malicious prosecution." 28 U.S.C. $2680(h) (as amended
L7
March 16, 1974, Pub. L. 92-253, 82, 88 Stat. 50).
The rationale behind immunity is two fold:
(1) the injustice, particularly in the absense
of bad faith, of subjecting to liability an officer
who is required, by the legal obligations of his
position, to exercise discretion; (2) the danger
that the threat of such liability would deter his
willingness to execute his office with the
decisiveness and the judgment required by the
public good. Scheuer v. Rhodes, 416 U.S. 232,
240 (1974).
The Court in Butz considered these factors to be
insufficient to justifying allowing official misconduct to
be unchecked through damage actions. Since federal officials,
including F.B.I. agents, are subject to personal liability for
constitutional torts, and do have to justify their exercise
of discretion and judgment in office, the "injustice" and
"danger" perceived in a denial of absolute immunity are no
longer viable. The balance has been struck in favor of
allowing a victim of federal lawless to seek compensation
while affording the federal official the shield of a good
faith defense.
The policy which once justified protecting federal law
enforcement officials from liability for these intentional
torts can no longer be sustained in the wake of Butz, and in
the wake of the amendment to the Federal Tort Claim Act which
now compels these law enforcement officials to defend their
intentional tortious conduct. With these significant changes
in the law, since Barr Vv. Mateo, supra was decided, the federal
defendants ought to be allowed only qualified immunity from
liability for false arrest and imprisonment, malicious
prosecution and abuse of process.
VERA MICHELSON and CAPITAL DISTRICT ic Ag j Lops
COALITION AGAINST APARTHEID AND a yaa atl dee Onn 14
RACISM, by ite Chairman MICHAEL ig SOF fi
DOLLARD, eT /
ae WES ees f
Plaintiffe, 82-CV~1413 A iltigg
Hon, Reger J. Miner
~againet~
PAUL DALY, AGENT IN CHARGE, FEDERAL
BURRAU OF EMVESTIGATION: ET AL,
Defendanta. |
The defendants, Albany County District Attorney S01 Greenberg,
Albany County Assistant District Attorney Joseph Donnelly, Albany County
Assistant District Attorney John Dorfman, unknown ether Albany Couaty
Distriet Attorneys and the County of Albany (hereinafter referred to asa
Albany County Defendants) for an anawer to the amended complaint herein:
FIRST: Denies any knowledge or information sufficient te form a
belief thereof as to the allegations, claims and statements contained in
the paragraphs of the amended complaint hexein numbered "15",
SECOND: Denies each and every allegation, claim and statement
contained gm the paragraphs of the amended complaint herein numbered ait a
mge ag mae, MS", "6", “7%, “O", ge Sige Ay", Ea, M19", "16" and
"17", exeept that the Albany County Defendants refer to the Order referred
to in paragraph "1" of the plaintiffs’ amended complaint and state that
they were never put on notice of the motion which resulted in said Order
and never hed an opportunity to be heard on said motion and the Albany
County Defendants refer all questions of law to the Court and refer to the
compleiat referred to in paragraph "3" of the plaintiffe' amended complaint
and the enewer thereto filed and served om behalf of the Albany County
Defendente for all the claims, statements, allegations, admissions, denials
and affirmative defenses set forth therein ead the Albany County Defendants
state that the charges referred to in paragreph "5" of the pladatiffe' amended
compleink were om or about December 8, 1961, diemiesed in the interest of
juetion and the Albany County Defendante refer te the decision of the Appealate
Division of Mew York State Supreme Court, Third Judieial Department referred
to in pevagraph "7" of the plaintiffs’ amended complaint for the sum and
gubstance of same, , ——
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
IN DIMINUTION OF DAMAGES AS TO THE
PLAINTIFYS' AMENDED COMPLAINT, THE
ALBANY COUNTY DEFENDANTS ALLEGE:
THIRD: That the injuries and damages mentioned and deacribked in
the plaintiffe' amended complaint were caused in whole or in part by the
contributory negligence, lack of ordinary care, assumption of risk and/or
culpable conduct of the plaintiffs and without any negligence or carelessness
on the part of the Albany County Defendante contributing therete,
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
AS TO THE PLAINTIFFS’ AMENDED COMPLAINT,
THE ALBANY COUNTY DEFENDANTS ALLEGE:
FOURTH: That at thoee times mentioned and described in the
piaintiffe’ ameaded complaint, the Albany County Defendants acted in a
veasonable wanner, with probable cause, in good faith, without malice and
their actione were justified.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
AS TO THE PLAINTIVY¥S' AMENDED COMPLAINT,
THR ALBANY COUNTY DEFENDANTS ALLEGE:
FIFTH: That at those times mentioned and described in the plaiatiffa’
amended complaint the defendent, Albany County District Attorney Se] Greenberg,
Albeny County Ageistent Dietrict Atteraay Joeeph Donnelly, Albeny Couaty
Aeoistent District Attorney Joka Dorfmen, and unknown other Albany Covwaty
Dastrict Attorneys were quasi judicial efficers acting im their official capaci
and, therefore, they and the County of Albany are imeune free eny and ali
Adebilisy ia thie ection.
SIXTH; That the plaintiffe' amended complaint fails to etase
@ claim upes with relief can be granted,
AS AND FOR A FIVTH APFIRMATIVE DEFENSE
| SEVENTH: That the defendants, the County of Albany and Albany
| County District Attorney 80] Greenberg may not be held Liable fer the conduct
| of their employees under the doctrine of respondeat superior,
| WEEREVORE, the Albany County Defendants demand judgment diomiesing
| the amended complaint herein with costs.
CARTER, CONBOY, BARDWELL,
CASE & BLACKMORE
oa
JAMES C. BLACKMORE
Atforneya for Defendants
Albany County Defendaate
74 Chapel Street ;
Albany, NY 12207
r
U.S. Department of Justice (Prete
\e United States Attorney
' Northern District of New York
United States Courthouse and Poat Office 518/472-5322
Albany, New York 12207 FTS/362-5522
August 26, 1983
Anita Thayer, Esq.
Walter & Thayer
69 Columbia Street
Albany, New York 12207
Re: Michelson, et al v. Daly, et al
Civil No. 82-CV-1413
Dear Ms. Thayer:
Enclosed are copies of Answers of Defendants Daly
and Rose, filed August 25, 1983 with the Clerk, U.S. District
Court in the above-captioned matter.
Very truly yours,
FREDERICK J. SCULLIN, JR.
UNITED STATES ATTORNEY
mC OR
WILLIAM P. FANCIULLO
ASSISTANT U.S. ATTORNEY
WPF /mat
Enclosures
ce: John Shea, Esq.
Carter, Conboy, Bardwell, Case & Blackmore
Lewis Oliver, Esq.
(w/enclosures)
4
UNITED STATES DISTRICT COURT
HORTHERN DISTRICT OF NEW YORK
VERA MICHELSON, and CAPITAL DISTRICT
COALITION AGAINST APARTHEID AND
RACISM, by ite Chairman MICHAEL
DOLLARD, .
Plaintiftts,
Ve
PAUL DALY, JAMES J. ROSE, and
UNKNOWN OTHER AGENTS OF THE
FEDERAL BURZAU OF INVESTIGATION,
ST AL,
Defendants.
U.S. DISTRICT COURT
N. D. OF N. Y.
FILED Gp
AUG 26 1983 /
AT O'CLOCK eM.
§. R. SCULLY, Clerk
ALBANY
ANSWER OF DEFENDANT DALY
Civil No. 82-CV-1413
(Hon. Roger J. Miner)
PAUL DALY, Special Agent In Charge, Federal Bureau of
Inveatigation, by hie attorney, Frederick J. Scullin, Jr., United
States Attorney for the Northern District of New York, William P.
Pancivllo, Assistant U.S. Attorney, of counsel, as and for his Answer
to the amended complaint herein, states as follows:
1. Defendant DALY denies all of the allegations set forth in
pearagraphea 4, 6, 8, 10, 11, 12, 14, 16 and 17 of the amended complaint.
2. Defendant DALY lacks knowledge or information sufficient to
form @ belief as to the truth of all averments in paragraphs 2, 5, 7,
9, 13 and 15 of the amended complaint.
3. Defendant admits the allegations contained in paragraph 1 of
the amended complaint.
Ae hie anewer to paragraph 3 of the amended complaint,
defendant reaponds by anawering all allegations in the complaint,
be low.
mans HRT ERA COR EN So VOTE Wage Wen
io Bon
PAUL DALY, Special Agent In Charge, Federal Bureau of
Investigation, as and for his answer to the complaint herein, states
as follows:
4. ‘Defendant DALY denies all of the allegations set forth in
paragraphs 7, 26, 30, 32, 34, 40, 41, 44, 50, 51, 55, 59, 61, 71, 73,
74, 75, 76, 77, 79, 80, 81, 83, 86, 87, 89, 91, 92, 101, 102, 103,
105, 106, 107, 108, 109, 110, 112, 113, 114 and 115 of the complaint.
5. Defendant DALY is without knowledge or information euf-
ficient to form a belief as to the truth of all averments in
paragraphs 1, 4, 5, 10, 11, 16, 17, 21, 23, 27, 33, I9e 42, 43, 45,
46, 48, 49, 53, 54, 57, 58, 62, 63, 65, 66, 67, 68, 69, 70, 85, 94,
95, 96, 97, 98, 99, 100 and 104 of the complaint.
6. Defendant DALY denies all allegations in paragraph 2 of the
complaint except to state that defendant lacks knowledge or infor-
mation sufficient to form a belief as to the truth of all averments in
the first sentence of paragraph 2.
7. Regarding paragraphs 3 and 18 of the complaint, defendant
DALY estates that these paragraphs contain legal conclusions as to
which no anewere are required. To the extent an answer ia deemed
neceasary, the allegations in paragraphs 3 and 18 ard denied.
8. Defendant DALY admits the truth of all allegations in
paragraphs 6, 12, 13, 14, 15 and 36 of the complaint.
9. Regarding paragraphe 8 and 9 of the complaint, defendant
DALY hacks information or knowledge sufficient to form a belief as to
the truth of allegations therein, except to admit, upon information
se es
and belief, that Sol Greenberg is the Albany County District Attorney,
and Joseph Donnelly was an Assistant District Attorney of Albany
County.
10. Defendant DALY cannot understand the allegation with respect
to “capacity” in paragraph 19, therefore such allegation is denied.
All other allegations in paragraph 19 are aleo denied.
ll. Defendant DALY cannot understand the allegation in
paragraph 20, which appears to be an incomplete sentence, therefore
defendant denies all allegations in paragraph 20,
12. Regarding the allegations set forth in paragraph 22 of the
complaint, defendant DALY denies any such surveillance by defendant
or the Federal Bureau of Investigation or at the request of defendant
DALY. Defendant lacks knowledge or information sufficient to form a
belief as to the truth of all other averments in paragraph 22,
including those with respect to other defendants or agencies.
13. Defendant DALY denies all allegations in paragraph 24 of
the complaint, except to specifically admit that on September 21,
1981, at the Hyatt House, a discussion took place including PAUL DALY,
Jamea Rose, John Reid and William Murray involving information from an
FBI informant regarding violence expected to be engaged in by members
of the Communist Workers Party.
14. Regarding the allegations in paragraph 25 of the complaint,
defendant DALY admits that Spearman was arrested on September 21,
1981. Defendant DALY lacks knowledge or information sufficient to
ay
form a belief as to the truth of all other allegations in the first
sentence of paragraph 25, and as to all allegations in the second sen-~
tence of paragraph 25.
15. Defendant DALY denies all allegations in paragraph 28 of
the complaint, except to admit that on or about September 21, 1981
Joseph Donnelly assisted in the preparation of and application for a
search warrant, and Donnelly typed the application for a search
warrant. Defendant DALY lacks information or knowledge sufficient to
form a belief as to the truth of averments regarding the capacity
Donnelly was working in.
16. Defendant DALY denies all allegations in parayraph 29 of
the complaint, except to specifically admit that on or about
September 21, 1981 defendant Rose provided information from an FBI
informant to Joseph Donnelly and other law enforcement officers
regarding weapons in Apartment 7K.
17. Regarding the allegations in paragraph 33 of the complaint,
defendant DALY states that the search warrant application speaks for
iteelf. To the extent an answer to paragraph 33 of the complaint is
required, paragraph 33 is denied,
18. Regarding paragraph 35 of the complaint, defendant DALY
states that the search warrant affidavit speaks for itself and the
affidavit is based, in part, on information from an informant.
Defendants DALY and Rose did provide information to other law enfor~
cement agents, but lack knowledge or information as to all of their
identities. All other allegations in paragraph 35 are denied.
ww Gao
19. Regarding paragraph 36 of the complaint, defendant DALY
states that the warrant application speaks for itself, and admits that
the warrant application does not specifically state the manner in
which the information was acquired by the informant. All other alle~-
gations in paragraph 36 are denied,
20. Defendant DALY denies all allegations in paragraph a! Of
the complaint, and specifically states that the FBI did provide infor-
mation to Albany Police Officials and states that he is without
knowledge or information sufficient to form a belief as to whether
Detective Tanchak was directly provided with euch information from the
FBI.
21. Defendant DALY lacks knowledge or information sufficient to
form a belief as to the truth of the allegations in paragraph 47 of
the complaint except to admit upon information and belief, that defen~
dant Rose and one other agent of the Federal Bureau of Investigation
were present at Apartment 7K on September 22, 1981.
22. As his answer to paragraph 52 of the complaint, defendant
incorporates herein and reaffirms his answers to paragraphs 1 through
51 of the complaint, set forth herein.
23. Regarding paragraph 56 of the complaint, defendant DALY
denies all averments in the fireat sentence of paragraph 56. Defendant
lacks knowledge or information sufficient to form a belief as to the
truth of all averments in the second sentence of paragraph 56,
24. As hie answer to paragraph 60 of the complaint, defendant
incorporates herein and reaffirms his answers to paragraphs 1 through
“il
-§&—
59 of the complaint, set forth herein.
25. Regarding paragraph 64 of the complaint, defendant DALY
denies that he participated in any such discussion or agreement, and
lacks knowledge or information sufficient to form a belief as to the
truth of all remaining allegations in paragraph 64 of the complaint.
26. As his anewer to paragraph 72 of the complaint, defendant
incorporates herein and reaffirms his anawers to paragraphs 1 through
71 of the complaint, set forth herein.
27. As his answer to paragraph 78 of the complaint, defendant
incorporates herein and reaffirms hia answers to paragraphs 1 through
77 of the complaint, as set forth herein.
28. As his answer to paragraph 82 of the complaint, defendant
incorporates herein and reaffirms his answers to paragraphs 1 through
81 of the complaint, as set forth herein.
29. As hia anewer to paragraph 84 of the complaint, defendant
incorporates herein and reaffirme his anawers to paragraphs 1 through —
83 of the complaint, as set forth herein.
30. As his answer to paragraph 88 of the complaint, defendant
incorporates herein and reaffirms his answers to paragraphs 1 through
87 of the complaint, as set forth herein,
31. As his answer to paragraph 90 of the complaint, defendant
incorporates herein and reaffirms his answers to paragraphs 1 through
89 of the complaint, as set forth herein,
32. As his answer to paragraph 93 of the complaint, defendant
incorporates herein and reaffirms his answers to paragraphs 1 through
Pes Pe
92 of the complaint, as set forth herein.
33. As his answer to paragraph 111 of the complaint, defendant
incorporates herein and reaffirms his answers to paragraphs 1 through
110 of the complaint, as set forth herein,
34. Defendant denies all allegations in the complaint and the
amended complaint not heretofore specifically admitted.
As And For Separate Affirmative Defenses
To The Complaint And The Amended Complaint Herein,
the Defendant Alleges As Fatices
35. Defendant is entitled to Qualified Immunity.
36. Defendant is entitled to Absolute Immunity.
37. Defendant at all times acted in good faith.
38. Res judicata and/or collateral estoppel are applicable.
39. Plaintiff's action was not commenced within the statute of
limitations.
40. Any alleged injuries of plaintiff were caused by the
culpable conduct of the plaintiff and/or other persons over whom this
defendant has no control.
41. Defendant acted reasonably at all times.
42. Defendant did not engage in state action.
43. Plaintiff acted illegally.
WHEREFORE, defendant demands judgment dismissing the complaint
and the amended complaint, together with costs and disbursements of
Lege
a
pos annephanngee nee Lae MIE sich et th sae ANA rai PNR HNa NCA Nn iM
“ae SRIRAM Rares dibee DNS UN Nat ANU AMON AETHER png DARHERIN SND KPH ANN SESANN NIM RRA wrt
defending this action, and such other and further relief which this
court deems just and proper.
Respectfully submitted,
FREDERICK J. SCULLIN, JR.
UNITED STATES RNEY
Bi Nol) ,
WILLIAM P. FANCIOLLO
ASSISTANT U.S. ATTORNEY
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
VERA MICHELSON, and CAPITAL DISTRICT
COALITION AGAINST APARTHEID AND
RACISM, by ita Chairman MICHAEL
DOLLARD,
Plaintiffs,
Vv.
PAUL DALY, JAMES J. ROSE, and
UNKNOWN OTHER AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION,
ET AL,
Defendanta.
U.S. DISTRICT COURT
AT____O'CLOCK M.
J. R. SCULLY, Clerk
ALBANY
ANSWER OF DEFENDANT ROSE
Civil No. 82-CV-1413
(Hon. Roger J. Miner)
JAMES J. ROSE, Special Agent, Federal Bureau of Investigation,
by his attorney, Frederick J. Scullin, Jr., United States Attorney for
the Northern District of New York, William P. Fanciullo, Assistant
U.S. Attorney, of counsel, as and for his Answer to the amended
complaint herein, states as follows:
l. Defendant ROSE denies all of the allegations set forth in
paragrapha 4, 6, 8, 10, ll, 12, 14, 16 and 17 of the amended complaint.
2. Defendant ROSE is without knowledge or information suf-~-
ficient to form a belief as to the truth of all averments in
paragraphs 2, 5, 7, 9, 13 and 15 of the amended complaint.
3. Defendant admits the allegations contained in paragraph 1 of
the amended complaint.
As his answer to paragraph 3 of the amended complaint,
defendant responds by answering all allegations in the complaint,
below.
-2-
JAMES J. ROSE, Special Agent, Federal Bureau of Investigation,
as and for his answer to the complaint herein, states as follows:
4. Defendant ROSE denies all of the allegations set forth in
paragraphs 7, 26, 30, 32, 34, 40, 41, 44, 50, 51, 55, 59, 61, Tl, 73,
74, 75, 76, 77, 79, 80, 81, 83, 86, 87, 89, 91, 92, 101, 102, 103,
105, 106, 107, 108, 109, 110, 112, 113, 114 and 115 of the complaint.
5. Defendant ROSE is without knowledge or information suf-
ficient to form a belief as to the truth of all averments in
paragraphs 4, 5, ll, 16, 07, 26 -BRe AT, The B95 425 B8a WG Fhe 57,
58, 62, 63, 65, 66, 67, 68, 69, 70, 85, 94, 95, 96, 97, 98, 99, 100
and 104 of the complaint.
6. Regarding paragraph 1 of the complaint, defendant ROSE
denies all allegations in paragraph 1 of the complaint except to admit
that on September 22, 1981 at about 3:00 a.m. an apartment at 400
Central Avenue was entered by state, local and federal law enforcement
officers and searched, pursuant to a search warrant. Three occupants
of the apartment were placed under arrest. Defendant ROSE lacks
knowledge or information sufficient to form a belief as to the speci-~
fic charges against these three persons, where they were incarcerated,
the effect, if any, of this incarceration, and the disposition of such
charges.
7. Defendant ROSE denies all allegations in parayraph 2 of the
complaint except to state that defendant lacks knowledge or infor-
mation sufficient to form a belief as to the truth of all averments in
the first sentence of paragraph 2.
~~
8. Regarding paragraphs 3 and 18 of the complaint, defendant
ROSE states that these paragraphs contain legal conclusions as to
which no anewer is required. To the extent an answer ie deemed
necessary, the allegations in paragraphs 3 and 18 are denied,
9. Defendant ROSE admits the truth of all allegations in
paragraphs 6, 12, 13, 14, 15 and 38 of the complaint.
10, Regarding paragraphs 8 and 9 of the complaint, defendant
ROSE lacks information or knowledge sufficient to form a belief as to
the truth of allegations therein, except to admit, upon information
and belief, that 80] Greenberg is the Albany County District Attorney,
and Joseph Donnelly was an Assistant District Attorney of Albany
County.
ll. Defendant ROSE lacks knowledge or information sufficient to
form a belief as to the truth of all averments in paragraph 10 of the
complaint except to admit on information and belief, that John Dorfman
was an Assistant District Attorney of Albany County.
12. Defendant ROSE cannot understand the allegation with respect
to “capacity” in paragraph 19, therefore such allegation is denied.
All other allegations in paragraph 19 are also denied.
13. Defendant ROSE cannot understand the allegation in
paragraph 20, which appears to be an incomplete sentence, therefore
defendant denies all allegations in paragraph 20.
14. Regarding the allegations set forth in paragraph 22 of the
complaint, defendant ROSE denies any such surveillance by defendant
a
or the Federal Bureau of Investigation or at the request of defendant
ROSE. Defendant lacks knowledge or information sufficient to form a
belief as to the truth of all other averments in paragraph 22,
including those with reepect to other defendants or agencies.
15, Defendant ROSE denies all allegations in paragraph 24 of
the complaint, except to specifically admit that on September 21,
1981, at the Hyatt House, & discussion took place including Paul Daly,
JAMES ROSE, John Reid and William Murray involving information from an
FBI informant regarding violence expected to be engaged in by membe rs
of the Communiat Workers Party.
16. Regarding the allegations in paragraph 25 of the complaint,
defendant ROSE admits that Spearman was arrested on September 21,
1981. Defendant ROSE lacks knowledge or information sufficient to
form a belief as to the truth of all other allegations in the first
sentence of paragraph 25, and as to all allegations in the gecond sen-
tence of paragraph y 3
17. Defendant ROSE denies all allegations in paragraph 28 of
the complaint, except to admit that on or about September 21, 1961
Joseph Donnelly assisted in the preparation of and application for a
search warrant, and Donnelly typed the application for a search
warrant. Defendant ROSE lacka information or knowledge sufficient to
form a belief as to the truth of averments regarding the capacity
Donnelly was working in.
18. Defendant ROSE denies all allegations in paragraph 29 of
the complaint, except to apecifically admit that on or about
