*1 Lloyd States, House and returned the barbecue 2d to and v. United Cir., true, page too, stand. is was It at that there *hat PÍdnÍ Giardina government might have ^°”y: ga? If$1,050 purchase ounces for the three Qut ordinary way made a case in the if> heroin; that afterward and sometime g0 SUCCessfully often used in informer and went his house Giardina into own type agents given the in had total to* one ounce heroin from the Qr former marked identified otherwise bag. paper rec of three in a brown money, carefully had be searched him government support s ord does not hig miggion ingure fore he left on to that bag paper contention that the brown ^e kad no narcotics concealed on about or was the heroin taken was kept gight had him all times at him> given by anyone identified one ag having so £0 exclude obtained the^ If it did, this Giardina defendant. elsewhere, narcotics then made impor important. is would not be What arregt to find the in the identified tant here that is no testified possession of the nar defendant and the paper bag given brown de Giardina coticg Nothing in that of the informer. was narcotics in it when fendant had wag of that kind done here. Instead given testimony short, him. In to government brought and to its testified agent government that Giardina cage wjth support no more real evi Panci Panci was seen with finding guilt dence a íor there than bag wholly passed paper in to a him was wag |or f^ndjng ghost ^.ke that a had been While, guilt. sufficient to establish his geen |n story said, of the man who govern therefore, testimony gaw «My ghogt eating plate friend off a purpose of ment witness well served its hig houge lagt you night> if don>t smearing as Panci because was seen he it, plate says believe here is he he sociating Giardina, with no evidence ghost eating saw the from”. „ support claim .. whatever was offered to its grant For the failure of . the court to „, anyone ,, that Giardina or else obtained . , heroin from Panci. „ „ verdict, . s defendant motion to direct a , . . .judgment is reversed with directions to acquit him. Giving fullest the evidence its force, to no it amounts more than associating Panci seen with was charac repute, and, ters of low if this conviction stand,
is to allowed the result would suspicion.
to convict him on There is proverb by the that man known is
company keeps,
one,
he
and another
“Give
dog
him”,
name and kill
a bad
NELSON,
Alice P.
Administratrix of the
legal principles
Nelson, deceased,
which will serve
Estate of Ronald
are not
Appellant,
hearsay
ad
to convert inadmissible
into
testimony
support
missible
convic
testimony merely
KNOX,
al.,
David
tion on
that a defend
R.
Robert C.
et
Akins
Appellees.
company.
ant is seen in bad
Kassin v.
States, Cir.,
No. 13155.
Theodore F. (Hugh Lang, Joseph K. Davidson and A. Detroit, Mich., brief), appel- on the for lant.
Guy Bratton, Detroit, Mich., and Mich, Thorburn, Royal Oak, James s. (Bratton, Detroit, Roskopp, Bratton & Mich., brief), appellees. on the for SIMONS, Judge,
Before Chief STEWART, ALLEN and Circuit Judges, STEWART, Judge, Circuit brought Ronald Nelson a civil action damages against Mayor, City for Manager, and Commissioners of City Huntington Woods,Michigan, alleged deprivation rights of his the Fourteenth Amendment and the Rights Act, Civil 42 U.S.C.A. alleged complaint the defend destroyed intentionally had ants Nel garage Huntington son’s business in by passing enforcing Woods arbi trary discriminatory ordinances. ad_ n the death of Ronald Nels plaintiff, ministratrix was substituted Knox, Cir., See Nelson v. days F.2d 483. After two of a trial
hearing
court,
the district
at the conelu
plaintiff’s case, granted
sion of the
defendants’
motion to dismiss the
followed,
appeal
and this
garage
Ronald Nelson started a
busi-
Huntington
ness in
Woods in 1946. The
ordinances in
passed
were
1950 for
purpose
announced
licensing,
regulating,
controlling
garage businesses, second-hand auto-
businesses,
mobile
and businesses con-
* *
Ten-
1019],
gasoline
95 L.Ed.
and oil.
ducted
sale of
for the
provisions
ney
broad
en-
case held that the
requiring licenses to
In
gage
addition
operate to
Act do
occupations,
ordi-
legislators
deprive
historic
their
when such
hours
nances
restricted
*3
liability
immunity
conduct
for
also
from civil
and
could be conducted
businesses
activity,
sphere
legislative
regulated the within the
of
and
restricted the time
rely upon
appellees
decisions
also
be
could
manner in
automobiles
holding
enjoy
judges
like im-
that
parked or stored.
provisions
munity despite
of
the literal
in accordance
Nelson secured license
Rights
Fox, 6
Act, Kenney
the Civil
v.
was,
He
provisions.
with the ordinance
288;
Cir., 1956,
v.
Francis
232 F.2d
Hunting-
many
however,
times
cited
Cir.,
809,
Crafts,
1953,
and
1
203 F.2d
police
for violations
ton
officers
Woods
Michigan courts
decisions of the
ordinances, as
provisions
of other
enunciating
principles. Am-
similar
prospective
and
were also his customers
234,
perse
1889,
42
Winslow,
v.
found
court
The district
customers.
1867, 16
Trumbull,
N.W.
Wall v.
ordinances
that the
the
enforcement of
Mich. 28.
operation
seriously
the
interfered with
garage
discontinued
of
he
Nelson’s
until
We
the
hold at the outset that
the
business some time in
extent of
the defendants’
insulation
liability
Rights
from
the
under
Act
the Civil
that none of
The evidence showed
properly
personally, and
cannot
determined
refer
Nelson
defendants knew
Michigan.
passed
ence to the local rule in
were
Sure
the ordinances
that
ly
persistent
each state
left
for
com-
cannot
to decide
and
numerous
after
community
completely
itself which of its officials
plaints
the
of
from citizens
City
liability
depriving
At-
with the
immune from
for
consultation
and after
rights granted by
citizen
torney.
of
as
fact that
the Federal
The court found
regulations
question
parking
Constitution. The
be de
must
“the ordinances
adopted
im-
as a
question
not
cided
here in
were
matter of
law.
any
ill-will of
posed
of
malice or
because
light
In the
of the relevant fed-
plaintiffs
any
toward
of the defendants
era¡ decisions,
agree
cannot
we
that
decedent.
legislative body
municipal
pass upon
district court did
complete immunity
share the
ability
from li
ordinances,
constitutionality of the
the
enjoyed by judges
which is
upon the
dismissed the action
legislators.
Hague
O.,
In
v. C. I.
grounds
passage of an
that
the mere
1939,
496,
U.S.
59
S.Ct.
constitute
viola-
ordinance could not
Supreme
L.Ed.
Court affirmed
Rights Act, and that the
Civil
tion of the
injunction
as modified a
against
of
decree
legislative officials
were
defendants
the members of
Board
of
liability.
ap-
On
from civil
immune
Jersey City,
Commissioners of
New
rely upon
appellees
peal
Jersey,
brought
in an action
grounds, and, additionally, upon
doc-
Rights
Civil
Act. Nowhere in the five
contending
adjudicatet,
res
trine of
opinions
Hague
filed in the
does
case
held
have been
constitu-
the ordinances
appear
any
of the seven Justices
tionally
courts.
valid
participated
who
municipal
were of the view that
legislative
appellees’
officials are clothed
As
claimed
Rights
complete immunity.1
liability
with such
under the Civil
To be
argued
sure,
present
properly
Act,
action is
“that the law
it is
damages rather
applicable
injunction,
bar
than an
to the case at
has been
ques
that difference does not
case
well settled
affect the
immunity.
Indeed,
Supreme
tion of
[71
U.S. 367
S.Ct.
rulings
this court
Cuiksa
1. The
members of a
companion
legislative body.
Mansfield,
did not
250 F.2d
involve
pointed
should be affirmed.
court
out that
The district
Court
equity
should found
substantial
Act relief
evidence
regulations
where
parking
ordinance
even
be withheld
sometimes
a cause
adopted
were
“comparable
create
and enforced in
facts would
good
complete
damages.”
Stefanelli
faith.
action for
page
Minard,
accordingly
The order of dismissal is
138; see Will
118, 121, L.Ed.
S.Ct.
affirmed.
Cir.,
Dalton, 6
iams v.
Cir.,
Malden, 1
ALLEN,
646, 649;
Judge (concurring).
Cobb v.
Circuit
701, 704-705.
agree
colleagues
my
I
with
*4
immunity
of
personal li-
from
opinion
the defendants
It is
our
Rights
ability under the Civil
can-
Act
with com
clothed
were not
in this case
by
not be determined
state dcci-
local
enjoyed
a
immunity
instead
plete
the
sions to
ready
extent
has
al-
that it
been
nature
qualified privilege.
to the
As
by
determined
federal
con-
law. I
to
privilege,
content
are
the
we
extent of
accept
sider unfortunate
the
the failure of
Chief
of
views
well considered
the
majority opinion
correspond-
to state the
Judge
by
Judge
Wood
Magruder, shared
ing
that,
rule
when federal
law is
bury,
expressed
of
as
Cobb v.
in
process
being developed
of
ques-
on new
Malden, supra.
arising
tions such as those
under the
Drawing
principles
upon
RigMs
shape
Act and has not taken
Magruder
Judge
law,
common
wrote:
of
specific problem
-with reference
ato
such
roughly
presented,
a
I take
as
as
“Hence
ac
here
the courts are entitled
generalization
adjudica-
to have
curate
recourse to the state
council,
public
city
and other
tions as
basis of
a
is
decision. This rule
exceptional
in
officers not
the
cate
followed in federal
having
gory
complete im
of officers
particular
immunity
The
field of
un
qualified priv
would
have
der the Civil
Act for
munity,_
ilege,
official acts
against
giving
them a defense
0f
officers is one
which
liability,
by
for harms caused
civil
Supreme
the
spoken,
Court has not
good
by
in
done
them
faith in
acts
Hague
O.,
v. C. I.
307 U.S.
59 S.Ct.
duty
performance of their official
as
83 L.Ed.
did not cover it.
It
[citing
they understood it.
cases]
js significant
that neither
principles
ordinary
of
But on
the
71 S.Ct.
torts,
of
I think that members
law
95
L.Ed.
nor Cobb v.
Mal
of
city
council
be liable
of
damages
would
in
den, Cir.,
(principally
1
persuasive also