SASS arn diapsaseeyenionnvin wee
dae ‘ Sil dealin Pinon Ne ovina Winn aenwbont saisiceiasnsynsdA tines ARAUR ES ANN aeaioA SRR MEMS ORO
ae
~
21. Denies knowledge or information sufficient to
form a belief as to paragraphs "64", "66", neg he": and "70".
22. As to paragraph "69" of the complaint, admits
that charges against the plaintiff were dismissed, and denies
knowledge or information sufficient to form a belief as to the
balance of said paragraph.
24. Denies the allegations contained in paragraph "71".
AS TO THE FOURTH CAUSE OF ACTION
24. Denies the allegations contained in paragraph
"72" except as hereinbefore otherwise specifically pleaded.
25. Denies the allegations contained in paragraphs
neg 7 Ee OIG". ene OTT.
2%. Denies knowledge or information sufficient to
form a belief as to the allegations contained in paragraph "74".
AS TO THE FIFTH CAUSE OF ACTION
27. Denies the allegations contained in paragraph
"78" except as hereinbefore otherwise specifically pleaded.
28. Denies the allegations contained in paragraphs
“agit "80" and “SL”.
AS TO THE SIXTH CAUSE OF ACTION
~. 29. Denies the allegations contained in paragraph
"82"" except as hereinbefore otherwise specifically pleaded.
ali
NAMES acest meena sina nnore
Spb i al enh RG Wh aN WGA a panna nl uli Gc eon UN aaah one RRr pRO eryceuaskeieaibayithrnae ets AiN UHH Riese seebine DATO HERA meen AN EAL HATO ORD NY < NybassteM tenants ost AMSAT, BY,
30. Denies the allegations contained in paragraph "83".
AS TO THE SEVENTH CAUSE OF ACTION
31. Denies the allegations contained in paragraph
"84" except as hereinbefore otherwise specifically pleaded.
32. As to paragraph "85" of the complaint, admits
that the charges against the plaintiff were dismissed, and
denies knowledge or information sufficient to form a belief as
to the balance of said paragraph.
33. Denies the allegations contained in paragraphs
"86" and "87".
AS TO THE EIGHTH CAUSE OF ACTION
34. Denies the allegations contained in paragraph
"gg" except as hereinbefore otherwise specifically pleaded.
35. Denies the allegations contained in paragraph "89".
AS TO THE NINTH CAUSE OF ACTION
36. Denies the allegations contained in paragraph
"90", except as hereinbefore otherwise specifically pleaded.
37. Denies the allegations contained in paragraph
seh” Sk and ode 3 alle
AS TO THE FIRST CAUSE OF ACTION
OF PLAINTIFF COALITION
38. Denies the allegations contained in paragraph
93" except as hereinbefore otherwise specifically pleaded.
Ye samt som
Yuan iRadN Ginc MBAS Sede ak earning waa i nia me
cutaneous inmate aE NRO AR et
39. Denies knowledge or information sufficient to
form a belief as to paragraphs "94", gg tggt 97", “LOS”,
"104" and “LO6".
40. Denies the allegations contained in paragraphs
"IO1" "iOG2. "05", SLOT. ‘*LOs" Hy OG" and “eT 19".
AS TO THE SECOND CAUSE OF ACTION
OF PLAINTIFF COALITION
41. Denies the allegations contained in paragraph
"111", except as hereinbefore otherwise specifically pleaded.
42. Denies the allegations contained in paragraphs
"yi2", "113", "114" and "115".
AS AND FOR A FIRST DEFENSE
43. The arrest, detention and prosecution of the
plaintiff, Michelson, were effectuated, if they were effectuated
at all, with good and legal justification, based upon reason-
able and probable cause.
AS AND FOR A SECOND DEFENSE
44. That the arrest, detention and prosecution of
the plaintiff, Michelson, were effectuated, if they were
effectuated at all, in good faith, without malice and with
good and legal justification, based on reasonable and probable
*
cause.
cai NAIA ARR NIS ARC H DAN H P EMN AoE:
tev iyt
AS AND FOR A THIRD DEFENSE
45. That upon information and belief, no item
of injury or damage, which plaintiffs claim to have sustained,
was caused or in any way contributed to, by any culpable
conduct on the part of the defendant, City of Albany, but if
any such injury or damage was sustained, it was caused solely
by the culpable conduct of the plaintiffs and/or some third
party over whom this defendant has no control.
AS AND FOR A FOURTH DEFENSE
46. That the cause of action enumerated as, SIXTH
CAUSE OF ACTION OF PLAINTIFF MICHELSON, fails to state a
claim upon which relief may be granted.
AS AND FOR A FIFTH DEFENSE
47. That the complaint of the plaintiff Michelson,
with respect to the FIFTH and EIGHTH CAUSE OF ACTIOCN, cannot
be sustained, as saia plaintiff has failed to comply with the
requirements of Section 50-e of the General Municipal Law of
the State of New York.
AS AND FOR A SIXTH DEFENSE
48. That the defendant, City of Albany, is a
municipality, and as such, cannot be held liable for punitive
.
“ damages.
“ANI CRRARED AVEC nema onen
AS AND FOR A SEVENTH DEFENSE
49. That upon information and belief, the plaintiff
Coalition, lacks the requisite standing to bring this action,
and thus those portions of the plaintiff's complaint, fails to
state a claim upon which relief may be granted.
AS AND FOR AN EIGHTH DEFENSE
50. Inasmuch as the plaintiffs' complaint is directed
toward the acts or ommissions of this defendant in its individ-
ual capacity, the complaint is a nullity and thus fails to state
a claim upon which relief may be granted.
WHEREFORE, the defendant, City of Albany, demands
judgment dismissing the plaintiffs’ complaint, together with
the costs and disbursements of this action, reasonable attorneys
fees, and such other and further relief as to this Court may
; : Ser eg
SEZ av Chita
INCENT J. McARDLE, JR.
( \/ Corporation Counsel
a Attorney for Defendant City of Albany
100 State Street
Albany, New York 12207
seem just and proper.
mee enn tamer —e
DATED: January 21, 1983
TO: WALTER & THAYER, ESQS.
Attorneys for Plaintiffs
69 Columbia Street
Albany, New York 12207
peta mnaerenriniontavernenil oones en aeeendieth iittala
YUL ey MENON Ue EI
ee ‘ \ Ud. DISFRICT Couns
J N. D. OF fi. Y.
wa FILZD C Py
_. UMITED STATES DISTRICT CouRT MAY 16 1983
MORTHERN DISTRICT OF NEW YORK feo
4. R. SCULLY, Clerk
VERA MICHELSON, and CAPITAL DISTRICT ALBANY
COALITION AGAINST APARTHEID AND
RACISM, BY ITS CHAIRMAN MICHAEL
DOLLARD . NOTICE OF MOTION
*
‘ Plaintiffs,
Civil No. 82-CV-1413
Vv.
(Hon. Roger J. Miner)
PAUL DALY, JAMES ROGE, Unknown Other
Agents of the Federal Bureau of
Inveatigation, et al,
Defendants.
LLL LLL LLL LLL NLA LANL AIL ALL LALA NAL AAA
TO: HONORABLE JOSEPH R. SCULLY
Clerk, U.S. District Court
Northern Diatrict of New York
U.S. Post Office and Courthouse
Albany, New York 12207
ANITA THAYER, ESQ.
Walter and Thayer
69 Columbia Street
Albany, New York 12207
SIRS:
PLEASE TAKE NOTICE that upon the annexed papers and upon all
papers filed and proceedings had herein the undersigned will move this
Court at a Motion Day thereof, to be held in the United States Post
Office and Courthouse, Albany, New York, on the 27th day of May, 1983,
at 9:30 a.m., or as soon thereafter as counsel can be heard, for an
i : ye
Order Diemiseing Plaintiffs’ Complaint in thie action.
Dated: May /6, 1983 Respectfully submitted,
FREDERICK J. SCULLIN, JR.
UMITED STATES ATTORNEY
Morthern District of New York
*
BY: is ‘
WILLIAM P. FANCIULLO
ASSISTANT U.S. ATTORNEY
U.S. Post Office & Courthouse
Albany, New York 12207
i U9. DISHRICT
of DL OF yy
UNITED STATES DISTRICT’ COURT 5 [! FILED
Co
MWORTHERN DISTRICT OF NEW YORK MAY 16 1493
ccnnsinaseuanaansisneeiaatin eT ANA
VERA MICHELSON, and CAPITAL DISTRICT IR Scuuny a>
COALITION AGAINST APARTHEID AND jit
RACISM, BY ITS CHAIRMAN MICHAEL NY
DOLLARD,
Plaintiffs,
Civil No. 82-CV-1413
Ve
(Hon. Roger J. Miner)
PAUL DALY, JAMES ROSE, Unknown Othe
Agents of the Federal Bureau of tL
Investigation, et al,
Defendants.
certainties AOD
MEMORANDUM IN SUPPORT OF MOTION OF DEFENDANTS
DALY, ROSE AND UNKNOWN FBI AGENTS TO DISMISS COMPLAINT
STATEMENT OF FACTS
On September 22, 1981 a City of Albany Police Court search
warrant was executed at the residence of VERA MICHELSON. This warrant
wae based in part on information supplied by a confidential informant.
The information indicated that armed members of the Communist Workers
Party intended to provoke a violent confrontation at Bleeker
Stadium in Albany, when the South African National Rugby Team,
the Springboks, played a rugby game. The warrant was also based on con-
firmed possession of a weapon py a Communist Workers Party member, and
threats by members against the life of the local head of the NAACP.
~2=
’ The office of Thomas Selfridge, the organizer of the rugby game,
was bombed on September 21, 1981.
The source indicated that MICHELSON's apartment was being used
as a base to plan activities to disrupt the rugby game. The apart-
ment, in the vicinity of Bleeker Stadium, was searched, pursuant to
the search warrant, for weapons. Plaintiff ESTIS alleges he was
arrested in the apartment.
The plaintiffa allege a conspiracy between the FBI and the local
police to “remove certain political activists from the Albany streets
prior to the Springbok game .- .- .". The action is brought pursuant
to Title 42, United States Code, Sections 1983, 1985, 1986 and 1988,
and the First, Fourth, Fifth, Eighth, Ninth, Tenth, and Fourteenth
Amendments to the United States Constitution. Plaintiffs also seek
damages for the common law torts of malicious prosecution, abuse of
process, false arrest, and false imprisonment. In addition, plaintiff
Coalition seeks injunctive relief.
The defendants Daly, Rose, and other unknown members of the FBI
move to dismiss the complaint with respect to themselves, in that the
plaintiffs' have failed to state a claim upon which relief can be
granted, these defendants were acting under color of federal law at
all times and in all matters pertinent to this case and are not sub-
ject to suit under the civil rights laws cited in the complaint, these
defendants are immune from liability for common law torts, and the
plaintiff “Coalition” lacks standing.
i 1. ‘ARGUMENT
The Civil Rights Conspiracy Statutes
Do Not Apply To Federal Officials
Acting Onaer Color Of Federal Law.
Federal officers acting under color of federal law are immune
from suit under the Civil Rights Act of 1871. Seibert v. Baptist, 594
P.2d 423, 429 (Sth Cir. 1979), on reh., 599 F.2d 743 (Sth Cir. 1979),
cert. denied, 446 U.S. 918 (1979), reh. denied, 447 U.S. 930 (1980);
Ryan v. Cleland, 531 F.Supp. 724, 733 (E.D.N.Y. 1982); see also
District of Columbia v. Carter, 409 U.S. 418, 430 (1973). The
legislative history of the Act, as recounted by the Supreme Court,
permits no other conclusion. See Monroe v. Pape, 365 U.S. 167,
173-180 (1961); Griffin v. Breckenridge, 403 U.S. 88, 100-101 (1971);
Monell v. New York City, 436 U.S. 658, 665-69 (1978). The Act was
passed in response to 4 twofold evil, which did not include misconduct
of federal officials. First, the Act “was passed by a Congress that
had the (Ku Klux Klan] ‘particularly in mind'” in order to prevent
private conspiracies against black persons and advocates of their
cause. See Monroe v.- Pape, supra, at 174. See also, Griffin v.
Breckenridge, supra, at 101. A second element of concern to Congress
was that, “by reason of prejudice, passion, neglect, intolerance or
otherwise,” state agencies were not enforcing state laws against such
private lawlessness “with an equal hand". Monroe v. Pape, Supra, 365
U.S. at 174, 180.
oy eo
' Thus, the Civil Rights Act, which affords access to the federal
courts for the deprivation of federal rights, wae aimed specifically
and exclusively at state officials and private bands who had been
terrorizing blacks. Congress did not intend to bring federal offi-
cialse acting under color of federal law within the reach of the Civil
Rights Act or its offspring. This conclusion was reinforced by the
Supreme Court's decision in District of Columbia v. Carter, Supra.
where the court acknowledged that the atatutes derived from the Civil
Rights Act and on which plaintiffs now rely, do not extend to federal
officials:
The rationale underlying Congress ‘decision
not to enact legislation similar to §1983
with respect to federal officials [was]
the assumption that the Federal Government
could keep its own officers under control.
Id. at 429-30. See also Koch v- guieback, 316 F.2d 1, 2 (9th Cir.
1963). Because the courts “are not at liberty to recast this statute
to expand its application beyond the limited reach Congress gave ity
District of Columbia v.- Carter, supra, at 432, the complaint fails to
atate a claim against the federal defendants under these civil rights
statutes.
Congress did not intend for the Civil Rights Act to reach all
tortious, conspiratorial interferences with the rights of others.
403 U.S. at 101. See Canlis v- n Joaquin Sheriff's Posse Comitatus,
Sa g
641 F.2d 711, (9th Cir. 1981), cert. denied, 454 U.S. 967 (1981).
wien
‘To ensure that the statute is not construed as 4 “general
federal tort law," the Supreme Court has narrowly interpreted that
element of Section 1985(3) requiring a showing that the conspiracy
alleged wae undertaken “for the purpose of depriving . - - any person
or class of persons of the equal protection of the laws .- «+ >
Griffin supra, at 102-03. Accordingly, 4 complaint under this provi-
sion must allege a sufficient “racial, or perhaps otherwise class-
pased, invidiously discriminatory animus behind the conspirators’
action." Id. See also Canlis, supra, at 719.
Although the courts have expanded the reach of Section 1985(3)
beyond its literal historical scope to recognize other protected
classes, s8e@, @-g-: Life Insurance Co. of North America v. Reichardt,
$91 F.2d 499, 505 (9th Cir. 1979) (sex discrimination), “the boundary
is not unlimited." Canlis, supra, at 720. “({PJjrecision must be
retained." Furumoto v. Lyman, 362 F.Supp. 1267, 1286 (N.D. Cal.
1973). The courts have, accordingly, required the class for which the
animus is held to be “based upon ‘immutable characteristics’ for which
the members . - - have no responsibility." Carchman v. Korman
Corp., 594 F.2d 354, 356 (3d Cir. 1979), cert. denied, 444 U.S. 898
4
(1979). Consistent with the purpose of the statute, the courts have
also limited ita coverage to only those groups that have traditionally
required and warranted special federal assistance in protecting
their civil rights and have been accorded such assistance.
wu
DeSantis vy. Pacific Télephone and Telegraph Co.-, 608 F.2d 327, 333
(9th Cir. 1979) (homosexuals not a traditionally suspect or
quasi-suspect class 80 a8 to require protection under §1985(3))-
Furthermore,
the clasa status providing the motivating animus
muet be created by a fact other than possession
of the right deprived--otherwise virtually every
conspiratorial deprivation of a primary right
would be actionable under §1985(3). - = >
Lopez v. Arrowhead, 523 F.2d 924 (9th Cir. 1975); See also Regan
y. Sullivan, 557 F.2d 300 (2nd Cir. 1977). The purported class in
this case against which the defendants’ alleged animus was allegedly
based satisfied none of these requirements.
In these cases, it is unclear what "clase" the plaintiffs allege
to be a part of. The complaint apeaks of “political activists," cer-
tainly a vague and amorphous group, even if limited to anti-apartheid
activities. If the clasa is meant to be the Capital District
Coalition Against Apartheid and Racism, the plaintiffs have still
failed to define a class intended to receive the protection of the
Civil Rights Laws. The plaintiffs in the Michelson complaint describe
the Coalition as an affiliation of “approximately forty civil rights,
civic, student, labor, community and neighborhood organizations, "
whose purposes and actions “are and were grounded in political and
moral abhorence for the inatitution of apartheid. .. -"
Thus, like the purported class in Rodgers v. Tolson, §82 F.2d
315, 317-18 (4th Cir. 1978), plaintiffea here “define their class in
a
vague’ and amorphous tetms such as ‘political and philosophical
opposition’. . . and ‘outspoken criticiem.'”* Accord Furumoto v.
Lyman, supra, at 1286 (class consisting of “non-white opponents of
racism" and “disrupters of university operations for social or politi-
cal reasons" not sufficiently limited to pass the Griffin test). Such
terms do not identify criteria for which the purported class members
have no responsibility and preclude objective identification of the
claes. See Rodgers v. Tolson, supra, at 317-18.
Nor can plaintiffs show that their “clase” has traditionally
warranted and received special federal assistance. In addition, the
purported clase is not cognizable under Section 1985(3) because it is
only created by the common possession of the right allegedly deprived-
-the right to express opposition to the system of apartheid. See
Lopez v. Arrowhead, supra. To hold otherwise “would make §1985(3)
‘applicable to all conspiratorial interferences with the rights of
others, as there are no bounds upon the ingenuity of counsel in
pleading novel and diverse classes to fit every conceivable
situation.'" Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 748, (10th
Cir. 1980), cert. denied, 454 U.S. 833 (1981)(quoting district court
opinion).
Plaintiffs' claims under Section 1985(3) must also fail for
failure to allege any facts showing invidious discrimination. See A &
A Concrete, Inc. v. White Mountain Apache Tribe, 676 F.2d 1330, 1333
(9th Cir. 1982); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
~ 1980). While plaintiffs here, like those in Ligon v. State of
Maryland, 448 F.Supp. 935, 941 (D. Md. 1977),
have alleged in conclusory form a denial of
equal protection . - +, the allegations fail
to disclose any class-based discriminatory
intent, @-.g-, that persons in a clase different
than plaintiffs would have been accorded
treatment different from that plaintiffs
received. Hence, no cause of action is stated
under 42 U.S.C. §1985(3).
See also Griffin, supra, at 102. The complaint, accordingly, fails to
atate a claim under Section 1985(3) and must be dismissed.
Te Complaint Fails To State A
Claim Under Section 1986.
Plaintiffs also assert a claim under 42 U.S.C. §1986, which
provides a cause of action against persons
having knowledge that any of the wrongs conspired
to be done, and mentioned in Section 1985 . + +.
are about to be committed, and having power to
prevent or aid in preventing the commission of
the same, neglects or refuses to Go 80. « + »
An action under Section 1986, however, is “derivative of a §1985
conspiracy and merely gives a remedy for misprision of such a
conspiracy." Martinez v. Winner, 548 F.Supp. 278, 328 (D. Colo.
1982). Thus, “Caln indispensible prerequisite for @+- + §1986 claim
is the existence of a conspiracy actionable under . . . §1985". Wagar
v. Hasenkrug, 486 F.Supp- 47, S1 (D. Montana 1980). Since plaintiffs
do not state a claim under Section 1985 against the federal defendants
or otherwise, “they cannot state one under §1986." See Phillips v.
International Asan. of Bridge. Structural & Ornamental Iron Workers,
Local 118, 556 F.2d 939, 941 (9th Cir. 1977).
Qian
' Purther, the strict one-year statute of limitations of Section
1986 bars recovery in this suit. Martinez v. Winner, supra, at 329
n.87. Plaintiffs' cause of action, if any, under Section 1986 accrued
on the date of the occurrence of the alleged wrongful acts, September
22, 1981. See Allen v. Fidelity & Deposit Co. of Maryland, 515
F.Supp. 1185, 1188 (D. S.C. 1981). The complaint does not allege any
other “wrongful act" that occurred within the one~year period. The
summons in this case was issued on December 15, 1982.
Plaintiffe' claims under Section 1986 are, accordingly, barred by the
atatute of limitations.
solute Immunity Doctrine Bars Suits
Ab
against Federal Defendants for Common
w Torts.
Plaintiffs seek to pursue several causes of action sounding in
atate tort law, specifically, malicious prosecution, abuse of process,
false arrest, and false imprisonment. All actions taken by the
federal defendants in these cases were the result of their employment
as federal investigators conducting a federal criminal investigation.
Federal officers acting within the scope of their employment have
absolute immunity from suits alleging common law torts. Barr v.
Matteo, 360 U.S. 564, 3 L.Ed2d 1434, 79 S.Ct. 1335 (1959). In Barr,
the Supreme Court stated that it is:
important that officials of government should be
free to exercise their duties unembarrassed by
the fear of damage suits in respect of acts done
in the course of those duties-suits which would
consume time and energies which would otherwise
be devoted to governmental service and the
threat of which might appreciably inhibit the
fearless, vigorous and effective administration
of policies of government. Barr, supra, at $71.
«1 O«
' The “Coalition” Lacks Standing To Sue
For Constitutional Violations.
Plaintiff "Coalition" unveils a novel legal theory by attempting
not only to claim a constitutional deprivation on behalf of unnamed
members of the group, but also by basing the constitutional harm on
the alleged “illegal” search of a third party's residence. The
Supreme Court in Rakes v-. Illinois, 429 U.S. 128, 99 S.Ct. 421 (1978),
held that Fourth Amendment rights are personal and may not be
vicariously asserted. See also, Flast v- Cohen, 392 U.S. 83, 92
(1969); McGowan v. Maryland, 366 U.S. 420, 429 (1961). Further, the
Coalition fails to fulfill the three criteria set forth by the Supreme
Court in order to allow an organization to bring suit on behalf of its
members. Warth v. Seldin, 422 U.S. 490, 45 L.Ed.2d 343, 95 S.Ct. 2197
(1975); Hunt v. Washington Apple Advertising Commission, 432 U.S. 333,
53 L-Ed.2d 383, 97 S.Ct., 2434 (1977). Those criteria are:
(1) its members would otherwise have standing
to sue in their own right; (2) the interests
it seeks to protect are germane to the organ-
igation's purpose; and (3) neither the claim
asserted, nor the relief requested, requires
the participation of individual members in
the lawsuit.
«
Hunt, supra, at 394.
The Coalition, in paragraph 96 of the MICHELSON complaint, is
described as being an affiliation of “approximately forty civil
rights, civic, student, labor, community and neighborhood
organizations." It is unclear which, if any, individual members of
ae
e
«\
\a
] j
rm © e
these groups have been the alleged victims of alleged unconstitutional
conduct of defendants Daly, Rose or other unknown FBI agents. In
order to win damages under a Bivens theory, it is necessary for the
individual plaintiff to prove unconstitutional behavior on the part of
each defendant. Bivens v. Six Unknown Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1977). Nor is it shown that the organiza-
tions purpose isa germane to the lawsuit.
The Coalition also accuses the defendants of “damaging the
“ reputation" of the Coalition by making certain public statements, thus
“s) ,depriving the Coalition of “equal protection of the law," etc. This
_"
Meas
is deficient. A plaintiff must do more than just allege tortious con-
duct on the part of a federal official; rather, the official's con-
duct, itself, must be unconstitutional. Baker v. McCollan, 443 U.S.
137 (1979); Birnbaum v. U.S., 588 F.2d 319 (2a Cir. 1978). The
Coalition is attempting to paint an alleged common law tort of slander
as though it were constitutional in nature. Such attempts were anti-
cipated by the Supreme Court in Butz v. Economou, 438 U.S. 478 (1978).
The Court in Butz recognized that actions under Bivens create 4
danger of interference with the normal operations of the Executive
branch - a danger that the public interest requires to be minimized. To
that end, the Court enjoined that the District Courts be “alert to the
possibilities of artful pleading”; that “Cijnsubstantial lawsuits can
~12<
be quickly terminated by federal courts"; and that a "firm application
of the Federal Rules of Civil Procedure will ensure that federal offi-
cials are not harassed by insubstantial lawsuits." 438 U.S. at 507-8.
~ Plaintiff Coalition Is Not Entitled
\ To Injunctive Rel ef.
Paragraphs 94 and 95 of the MICHELSON complaint state that the
Coalition was formed in 1981 for the purpose of opposing the U.S. tour
of the South African Rugby Team. Despite the fact that the tour is
over and plaintiff has not established that further tours are con~
templated, plaintiff seeks broad injunctive relief.
In addition, plaintiff has not alleged any facts which are auf-
ficient to entitle it to relief along these lines. Injunctive relief
is designed to deter future injury and not to redress past conduct.
Rondeau v.-Mosinee Paper Corp.-, 422 U.S. 49, 62 (1975). The complaint
does not allege that there is a real, immediate and specific threat of
injury which would warrant injunctive relief.
A party seeking injunctive relief must demonstrate the
existence of present objective injury or a threat of specific future
harm. United States v. Richardson, 418 U.S. 1766 (1974); Laird
v. Tatum, 408 U.S. 1, 14 (1972).
“Moreover, judicial supervision of police activity predicated on
future abuse must be based on the imminence of future misconduct. - -
{t]he mere possibility of future misconduct is simply not enough."
Reporters Committee for Freedom of the Press v. AT&T, 593 F.2d 1030,
Reporters Committee tor '*s—
1069 (p.c. Cir. 1978), cert. denied, 440 U.S. 949 (1979). In short,
va
SAR eT ANN Aare Om Oe
a all rau
-13-
i there must be a showing “that there is a substantial risk that future
' yiolations will occur." Long v. District of Columbia, 469 F.2d 927,
932 (D.C. Cir. 1972). Plaintiffs have failed to make such a showing.
They are plainly seeking:
a broad ecale investigation, conducted by
themselves as private parties armed with the
subpoena power of a federal district court
and the power of cross examination, to probe
into the (United States investigative and
law enforcement] activities, with the district
court determining at the conclusion of that
investigation the extent to which those
activities may or may not be appropriate. . .
e * *
Carried to its logical end, this approach
would have the federal courts as virtually
continuing monitors of the wisdom and
soundness of Executive action; such a role
is appropriate for the Congress acting
through its committees and the ‘power of
the purse’; it is not the role of the
judiciary absent actual present or
imminently threatened injury resulting
from unlawful governmental action. Laird,
supra, at 14-15.
In addition, any attempt to enjoin the United States in this
action is barred by the doctrine of sovereign immunity. See Midwest
Growers Co-op Corp. v. Kirkemo, 533 F.2d 455 (9th Cir. 1976). In
Midwest Growers, the plaintiff sought injunctive relief, inter alia,
againet the individual federal official, the Interstate Commerce
Commission and the United States by claiming that it had been sub-
jected to an unreasonable search and seizure in violation of the
Fourth Amendment. The Ninth Circuit declared, at 465, that:
wnt den
Insofar as the injunction seeks to restrain the
United States and its agencies, it is barred by
the doctrine of sovereign immunity. It is well
eatablished that suits to enjoin the United
States or its agencies, like damage suits, cannot
be maintained unless the Government first consents.
Dugan v. Rank, 372 U.S. 609, 617-619, 83 S.Ct. 999,
v. California, 372 U.S. 627, 629, 83 S.Ct. 996, 997,
10 LEd- 2d. 28, 30 (1963); Cotter Corporation v.
Seaborg, 370 F.2d 686, 691 (idth Cir. 1966).
Congrese has enacted no statute which may be
interpreted as providing consent for this suit.
The injunction against the United States
accordingly is improper.
Thus, unless the plaintiff can point to some atatute waiving sovereign
immunity for the relief he seeks in this suit, the court is without
jurisdiction to grant declaratory and injunctive relief against the
\ United States.
H~ CONCLUSION
The complaint in this action employs a shotgun approach; it does
not contain a short and plain statement of the claim showing the
pleader is entitled to relief. Rule 8, Federal Rules of Civil
Procedure. The complaint fails to state a claim upon which relief can
be granted, these defendants are not subject to suit under the Civil
Rights statutes cited, these defendants are immune from civil lLiabi-
lity for common law torts,( and the “Coalition™ lacks standing and is
not entitled to injunctive relief.
}
For all of the above reasons, the Motion of defendants Daly,
Steesninsusine hacen inane ASSN EOSIN TORR NS
Rose and other FBI agents to Dismiss the Complaint in this action, with
respect to them, should be granted.
Respectfully submitted,
FREDERICK J. SCULLIN, JR.
UNITED STATES A’ R
- *
BY: ,
WILLIAM P. FANCIULLO
ASSISTANT U.S. ATTORNEY
Sworn to before me this
(Gf aay of May, 1983.
/ U.S. Department of Justice
MAY 1 7 Reop
United States Attorney
' ‘ Northern District of New York
United States Courthouse and Post Office 518/472-5522
Albany, New York 12207 FTS/$62-5522
May 16, 1983
Anita Thayer, Esq.
Walter and Thayer
69 Columbia Street
Albany, New York 12207
Re: Vera Michelson, et al v. Paul Daly, et al
Civil No. 82-CV-1413
Ae Sethe A In ce
Dear Ms. Thayer:
Enclosed herewith is a copy of Notice of Motion, Motion
to Dismiss Complaint and Memorandum in Support of Motion to
Dismiss Complaint which was filed in U.S. District Court on
this date in the above-referenced case.
Very truly yours,
FREDERICK J. SCULLIN, JR.
UNITED STATES ATTORNEY
Br Mary an Larger ae
MARY ANN TANGORRE
LEGAL CLERK
f/mat
Enclosures
Sire Era
UNITED STATES DISTRICT COURT
WORTHRRN DISTRICT OF NEW YORK
<einmiiensieamtemanaiemnitanintii aN A
VERA MICHELSON, and CAPITAL DISTRICT MOTION OF DEFENDANTS
COALITION AGAINST APARTHEID AND DALY, ROSE AND OTHER
RACISM, BY ITS CHAIRMAN MICHAEL UNKNOWN AGENTS OF THE
DOLLARD, Fal TO DISMiSS THE
ee COMPLALRT
Plaintiffs, cece Nara na
Civil No. 82-CV~-1413
ve
(Hon. Roger J. Miner)
PAUL DALY, JAMES ROSE, Unknown Other
Agenta of the Federal Bureau of
Investigation, et al,
Defendants.
<eceessesecaceecainnatainaascsacitssitt cts CCNA CO CC
Come now the defendants, DALY, ROSE, and Other Unknown FI
agente, by their attorney, Frederick J. Scullin, Jr., United States
Attorney for the Northern District of New York, William P. Fanciullo,
Aseistant United States Attorney, of counsel, and respectfully move
this Court for an Order Dismissing Plaintiffe' Complaint in this
action with reapect to defendants Daly, Rose and other unknown agente
of the FBI.
Submitted herewith is a memorandum in support of defendants’
motion.
Dated: May 16, 1983 ‘
Albany, New York Respectfully submitted,
FREDERICK J. SCULLIN, JR.
UNITED STATES ATTORNEY
Northern Diatrict of New York
BY: Nab: D am :
WILLIAM P. FANCIULLO
ASSISTANT U.S. ATTORNEY
U.S. Post Office & Courthouse
Albany, New York 12207
VERA: MICHELSON, ET AL, )
Plaintiffs, ) Notice of Motion,
- ) Motion to Dismiss
. and Memo in Support |
PAUL DALY, JAMES ROSF, ET jy of Motion to Dismiss
AL,
Defendants.
Tee undereigned bereby certifies that“he ie aa employee in the
Offies of the United States Attornsy for the Northern District
ef _ New York, ana is @ person of such age and discretion
an 0 be competent to serve papers.
‘Sek oe May 16, $30; served a copy of the attached
Notice of Motion, Motion to Pismiss and
Memo in Support of Motion to Dismiss
hy pleasing eaid copy in & postpaid envelope addressed to the persontéy
herelaeftar aeaed, at the place{s}-and address(es} etated below, which
tafeee the lest known address (eu}x end by Gepoeiting eaid envelopes and
nomtasha is the United ates Mail a@ Albany, New York
fuiedlare anton (a) 2
ANITA THAYER, FSQ.
Walter and Thayer
69 Columbia Street A
Albany, New York 12207
MaryjAnn Tangorre
Porm VBA-20
68 1678
perkates inna
ri
;
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ane anne
VERA MICHELSON, and CAPITAL DISTRICT
COALITION AGAINST APARTHEID AND RACISM,
by its Chairman MICHAEL DOLLARD,
Plaintiffs,
~against-
PAUL DALY, AGENT IN CHARGE, FEDERAL BUREAU
OF INVESTIGATION; JAMES J. ROSE, SPECIAL
AGENT, FEDERAL BUREAU OF INVESTIGATION;
and UNKNOWN OTHER AGENTS OF THE FEDERAL
BUREAU OF INVESTIGATION; UNKNOWN NEW YORK
STATE POLICE OFFICERS; ALBANY COUNTY
ee eeemnneeenias Anos
U.S. DISTRICT COURT
N.D.OF N.Y.
FILED Ca
JUN 2 0 1983
AT O'CLOCK M.
J. R. SCULLY, Clerk
ALBANY
CIVIL NO.
82-CV~1413
(Hon. Roger J. Miner)
DISTRICT ATTORNEY SOL GREENBERG; ALBANY COUNTY
ASSISTANT DISTRICT ATTORNEY JOSEPH DONNELLY;
ALBANY COUNTY ASSISTANT DISTRICT ATTORNEY
JOHN DORFMAN; UNKNOWN OTHER ALBANY COUNTY
DISTRICT ATTORNEYS; THE COUNTY OF ALBANY; THE
CITY OF ALBANY POLICE CHIEF THOMAS BURKE;
CITY OF ALBANY ASSISTANT POLICE CHIEF JON
REID; CITY OF ALBANY POLICE LIEUTENANT
WILLIAM MURRAY; CITY OF ALBANY DETECTIVE
JOHN TANCHAK, UNKNOWN OTHER CITY OF ALBANY
POLICE OFFICERS; and THE CITY OF ALBANY,
Defendants.
os eens sr oes uen meaner «tet 4 neta ne ee vores
MEMORANDUM ON BEHALF OF
PLAINTIFFS IN OPPOSITION TO MOPION
TO DISMISS PURSUANT TO FRCP 12(b)
BY FEDERAL DEFENDANTS.
ca ntameetacentat tere ere nme
ANITA THAYER
LANNY E. WALTER
WALTER & THAYER
69 Columbia St.
Albany,
New York 12207
(518) 462-6753
BACKGROUND
TABLE OF CONTENTS
ee RE SEES OES FEE 8 8 ORR FE OOH OES Fee RS
ARGUMENT SOE EES OOO ee ee EERE ES EEO HERE EEF S88 See
CONCLUSION
POINT I: THE CIVIL RIGHTS CONSPIRACY
STATUTES DO APPLY TO THE FEDERAL
DEFENDANTS. Pe a a ee a ee ed
A. THE FEDERAL DEFENDANTS ARE LIABLE .
UNDER 42 U.8.C. § 1983. oenteoeeve vm eee @
B. THE FEDERAL DEFENDANTS ARE LIABLE
UNDER 42 U.S.C. § 1985(3). weeeeeeees
POINT Il: THE COMPLAINT STATES A CLAIM
UNDER 42 U.S.C. § 1986. «seeererecnsenees
POINT III: THE FEDERAL DEFENDANTS ARE
NOT ABSOLUTELY IMMUNE FROM LIABILITY FOR
COMMON LAW TORTS. eeeovseeeeveaeaneveen en ewan ee
POINT IV: THE CAPITAL DISTRICT COALITION
AGAINST APARTHEID AND RACISM HAS STANDING
TO MAINTAIN THIS ACTION. .ceeenceerreves
POINT V: THE CAPITAL DISTRICT COALITION
AGAINST APARTHEID AND RACISM IS ENTITLED
TO SEEK INJUNCTIVE RELIEF AGAINST THE
FEDERAL DEFENDANTS. .ccecceecersereeecee
A. THE COALITION HAS STANDING TO SEEK
INJUNCTIVE RELIEF. «cr ccneeecnvnrees
B. PLAINTIFF COALITION DOES NOT SEEK AN
INJUNCTION AGAINST THE UNITED STATES.
elk ep ae ee BO LR ae Be ee ROR Eee BO a
i
14
18
22
22
26
27
BACKGROUND
Plaintiff Vera Michelson is a resident of the City
of Albany who actively participated in the organization of a
demonstration on September 22, 1981 in order to peacefully
protest the policy of apartheid as represented by the South
American Rugby team. On the evening of September 21st she was
asleep in her apartment at 400 Central Avenue, Apartment 7K
when it was invaded by certain defendants and other unknown
law enforcement agents. Instead of attending the protest,
plaintiff was arrested by this raiding party, and taken to the
police station. Her apartment was ransacked, and numerous personal
papers, and Coalition documents were confiscated. Plaintiff was
charged with a petty offense and incarcerated in the Albany County
Jail for three (3) days without bail in violation of New York
law. The petty offenses charged against plaintiff were subse-
quently dismissed.
The Capital District Coalition Against Apartheid
and Racism is an unincorporated association that was the local
initiator and organizer of a protest rally against a rugby game
scheduled between the apartheid South African Springbok team and
a local rugby team. The size and effectiveness ef this associa-
tional activity was severly diminished and impinged by the conduct
of defendants, to wit: spreading false rumors of violence, dis-
seminating unfounded threats to would be participants and
supporters, placing the Coalition and its leaders and/or members
under surveillance, maintaining records and files of activities
protected by the First Amendment, arresting plaintiff Michelson
and other coalition members on the eve of the rally, and con-
fiscating coalition’ documents.
Plaintiff Michelson brought suit in the Federal
District Court for the Northern District of New York alleging the
violation of various constitutional and statutory rights and
invoking the Court's pendent jurisdiction with regard to various
state tort claims.
Plaintiff Coalition has alleged a violation of its
and its members' right to associate and to hold a public rally,
and an invasion of their right of associational privacy through
the confiscation of names, addresses and other coalition documents.
References are made to specific factual allegations
of plaintiffs’ complaint where necessary throughout this
memorandum.
Defendants, Paul Daly, James Rose and Unknown Other
Agents of the Federal Bureau of Investigation move to dismiss
the complaint on grounds that (1) civil rights conspiracy
statutes do not apply to federal officials, (2) federal officials
have absolute immunity for Common Law Torts, (3) the Coalition
lacks standing to sue, and (4) plaintiffs are not entitled to
«
injunctive relief.
Defendants have made no objections to.the direct
constitutional claims of plaintiffs so the basis for liability of
the federal defendants on these claims is not briefed herein.
ARGUMENT
POINT I: THE CIVIL RIGHTS CONSPIRACY
STATUES DO APPLY TO THE FEDERAL
DEFENDANTS .
A. THE FEDERAL DEFENDANTS ARE LIABLE UNDER 42 U.S.C. § 1983
The statutory language of 42 U.S.C. § 1983 makes it
quite clear that the plaintiff must prove that the defendants
acted under color of state law in causing an injury to the
constitutional or federal rights of plaintiff. See generally,
Monroe v. Pape, 365 U.S. 167 (1961).
The issue of whether or not the actions of federal
officials may be subject to § 1983 if there is proof of conspiracy
with state officials has never been decided by the U.S. Supreme
Court. See Dombrowski _v. Eastland, 387 U.S. 82,p.84 (1967).
However, the law in the Second Circuit is quite clear.
"We can see no reason why a joint con-
spiracy between federal and state officials
should not carry the same consequences under
§ 1983 as does joint actions by state officials
and private persons. It was the evident purpose
of § 1983 to provide a remedy when federal
rights have been violated through the use or
misuse of power derived from a state....
When the violation is a joint product af the
exercise of a state power and of a nqn-state
power then the test under the Fourteenth
Amendment and § 1983 is whether the State
or its officials played a ‘significant’ role
in the result."
Kletschka v. Driver, 411i ¥.2d
in‘ Hampton Vv. Hanrahan ,“ 600 F.2a 600 (1979), a case with many
factual similarities to the within complaint the Seventh Circuit
cited Kletschka, supra, and ruled that "...when federal officials
are engaged in a conspiracy with state officials to deprive con~
stitutional rights, the state officials provide the requisite
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