Chester Wheeler Campbell v. Joseph Shearer

privacy taking advantage it is sonal veterans argues that HCC here further program. U.S.C. of the to the addresses because entitled § other 3301(f)(1) disclosure mandates I do understand is What not the reluc- to an or information wise confidential VA agency release tance of the information with the “directly connected ganization pertaining to lenders and amounts of mort- programs and the conduct [veterans] and furnish and gage loans numbers benefits.” utilization of [veterans] in at least of such loans a reasona- amounts has con that HCC no direct simple fact is particular ap- blocks ble number which aiding as the veterans such nection with might designate. pellants Legion, and or the American Red Cross pointed “that Congress has out con- section, meaning, is ordinary housing] highest to be sidered [fair instant inapplicable matter. priority” Metropolitan Trafficante 38 U.S.C. It is also asserted that Co., 205, 211, Insurance Life § § 1.512(b)(1) 3301(c)(2) re- 38 C.F.R. reports appraisal full of VA quire release case I would remand this with instruc- “to certificates or reasonable value to the Veterans Administration to co- tions As applies”. who the District Court person devising the rea- operate with noted, expressly this section is properly spot procedure just check referred sonable § 3301(j)to the subject by U.S.C. made to. “any Privacy Act and the so FOIA made authorized must be disclosure” thus interpreta- FOIA. HCC’s

pursuant to the requirement is selec- of the disclosure

tion inapposite.

tive and

Finally, argues some- appellant integration purpose” “public how the CAMPBELL, Chester Wheeler balancing here test must override Plaintiff-Appellant, simply argument as This is the FOIA. balancing test to the manner in which applied, not a for should be substitute SHEARER, al., Joseph et authority proposi- There is no for the

test. Defendants-Appellees. pur- any public tion that furtherance No. 82-1665. salutary, may suspend com- pose, however pletely statutory mandate of the FOIA. Appeals, United States Court Sixth Circuit.

Wherefore, the district the decision of hereby court is affirmed. Argued Oct. 1983. April Decided Jr., EDWARDS,

GEORGE CLIFTON concurring part and dis- Judge, Circuit Rehearing Rehearing En Banc senting part. July Denied fairly majority’s opinion I think the in this and I concur the issues case

states result, exception

in their with in- appellant’s request

failure meet prove or would serve to

formation which Home

disprove whether or the VA being mani- Guaranty Program was

Loan housing segregation.

pulated promote colleagues agree my with

Specifically of individual veterans names per- tend invade

their would addresses procedural

prove proper process deprivation claim under section 1983 for of property. prove Plaintiff must the due of wrong element as well as property deprivation element, this case he has failed to show that Michi- judicial gan’s administrative and remedies inadequate they are or that provide do not adequate process remedy the constitu- tional violation claimed.

I. Plaintiff, incarcerated, currently who is filed alleging this section 1983 action process rights his due were violated when approximately Detroit officers seized $280,100 pursuant in cash from his home a warrant that authorized them to search weapons, drugs, drug paraphernalia, for drugs. Upon and other of evidence Patmon, Kirk, Young Detroit, Mich., & jeopardy issuance of a tax assessment Detroit, Mich., (argued), Evans Carol for Michigan Department Treasury, of plaintiff-appellant. Department Detroit Police surrendered Gallagher (argued), Gary Thomas Kress $127,775.38 the state tax collectors. Detroit, Mich., (argued), defendants-ap- for remaining apparently cash was turned over pellees. to the Internal Revenue under a Service LIVELY, federal tax assessment. Judge, Before Chief MER RITT, HOLSCHUH, Judge and Circuit Dis thereafter, judge the Record- Soon of Judge.* trict er’s Court for the of Detroit held that illegal seizure of the be- MERRITT, Judge. Circuit scope cause it was not within search warrant. Plaintiff then filed a re- § (1976) brought under 42 U.S.C. 1983 quest Michigan with the Department of deprivation property, presented we are Treasury for an informal hearing concern- again question with the of what elements A the assessment. series of bureau- necessary prove are to state and a cause of impediments cratic or then action for constitutional arose. The District under section 1983. plaintiff’s request, Pursuant the De- decided in favor of the various de partment hearing. scheduled a Before it protect grounds they fendants on hearing, Department held the deter- absolute, liability by or a ed from either jurisdiction. it lacked mined that Since immunity. qualified We affirm on differ depart- had relied an earlier decision in ground. ent Under our recent (6th practice allowing Walton, mental informal hear- 721 F.2d 1062 Cir. Vicory v. matters, ings in 1983), such tax assessment how- plead prove must ever, Department indicated that inadequate remedies are available state thirty days bring systemically defective in order to state or tiff would be allowed * Ohio, Holschuh, Judge sitting by designation. The Honorable John D. District Southern United States District Court for the sury, and four agents appeal Board De- proper partment Treasury, Intelligence Appeals. Unit. defendants connected with the later, plaintiff week Approximately one Detroit, “city defendants,” called the failed Ap- the Board of Tax filed an with plaintiff’s complaint, to answer and conse- Michigan Attorney peals. The General the clerk quently of the District en- appeal because it had to dismiss the moved judgments against default tered them. Af- statutorily the re- not been filed within hearing morning trial, a on the of the ter thirty days of the actual assess- quired neglect District Court ruled that excusable granted Attorney The Board the ment. the an- caused defendants’ failure to motion, dismissing appeal for General’s the swer, and therefore set aside the defaults. jurisdiction, noting lack of while that the trial, Following jury the the District Court dismissal “works an result unconscionable a of directed verdict favor the de- deprivation and an obvious of fundamental fendants, granted summary judg- and a process.” defendants, remaining ment for the state a ac- thereupon Plaintiff filed mandamus grounds quali- that on either an absolute or Michigan Appeals, tion in the Court of immunity liability fied from under section seeking Michigan Depart- to compel the covered all of the 1983 defendants. Treasury of to return the ment jeopardy under tax assess- seized the sales II. Ap- compel ment and to the Board of Tax analogous closely This case is the situ- to peals hearing on to hold a the assessment. Vicory v. recently Appeals ation we addressed of a issued Walton, Cir.1983). (6th 721 F.2d 1062 remanding writ of the case to mandamus Vicory, plaintiff brought the hearing. Board held the The Board § complaining jeopardy the the under U.S.C. that assessment issued Michigan against plaintiff deprived property, of val- he had been of State that statutory in a id declined to rule whether mobile home trailer seized evidence but granted violated it said trial. The District Court procedures were because state equitable power grant summary judgment immunity grounds that it lacked to Campbell defendants, Depart- prosecutor and relief. See injunctive Treasury, Mich.App. plaintiff’s trailer. ment of 258 sheriff who had seized authority we of appeal, held under N.W.2d On Taylor, appealed Plaintiff never deci- Board’s in section sion. Even before the Board had rendered damage prop- suits for decision, plaintiff filed this action erty process, alleged Plaintiff District Court. pleading and plaintiff has the burden acting under color while proving damage remedies law, deprived him to be caused wrong. inadequate alleged to redress the rights guaranteed under the constitutional Vicory plaintiff in failed to meet (1) by and amendments fourth fourteenth burden, entry and detainer because forcible seizing his illegally or small were available actions claims assessment without af- jeopardy sales tax have redressed Ohio courts could which fording him administrative or Board alleged wrong. (2) hearing; by wrongful- Appeals here failed to al- post-seizure adminis- ly depriving Similarly, him of corrective protest jeopardy lege as- in the state’s any deficiency trative provides for an practice law procedures. with state sessment accordance five De- decisions of the state procedure. Defendants are from adverse Mich.Comp. See officers, city Detroit, Appeals. troit Board of Tax 1983) § (West (as Commissioner, amend- of- Revenue Laws Ann. 205.22 ed, Mich.Comp.Laws at Michigan Department of Trea- original version ficer § (West 1967)). aggrieved assuming An Ann. 205.9 that there is no basis in fact assessment,” taxpayer recovery taxpayer can file a claim for for the go need state court of claims. If the court no than further the circuit court of the adverse, plaintiff county of challenge claims’ decision is also his residence to Michigan Supreme may appeal departmental finding tending that an act id. jeopardize See Court. collection has made or been Id. about be committed. Furthermore, proce in addition to this Craig at 239. N.W.2d was decided after dure, providing jeopardy the statutes assessment in this case was interpreted by tax have been assessment issued, well before initiated his but Michigan Supreme Court to allow an Therefore, open section 1983 action. it was aggrieved taxpayer to commence an imme Wayne County file Circuit action in the circuit court of the coun diate post-seizure hearing Court for a to test his Craig v. City See ty where he resides. federal constitutional claims asserted under Detroit, Mich. 243 N.W.2d section 1983 as well as his state claims. (1976). Although Supreme the Plaintiff's remedies under law States, Laing v. United 423 U.S. clearly adequate.. He is therefore un- (1976),1 46 L.Ed.2d 416 had held S.Ct. satisfy process” to the able “due element post-seizure that access to a within claim, requirement of his 1983 the that he sixty days satisfy was sufficient the procedural the existence of a show deficien- requirements process, of due the cy systemic problem in state law or a with in Craig proce court hinted that a review process. According- the state’s corrective sixty dure which allowed a within ly, judgment the of the District Court is days opinion prompt post- “is not in our affirmed.2 hearing” might seizure a decision because forthcoming ninety-fifth

not until the HOLSCHUH, Judge, dissenting. District day taxpayer after the appeal. had filed his respectfully 397 Mich. at 189-90 n. 243 N.W.2d at I dissent for two basic rea- First, Craig go majority’s n. 5. The court did not so far as sons. the conclusion that say appeal procedure against that this violates the action the state de- Rather, process, due however. it held that fendants was insufficient to state a section “[ajssuming injured upon very expansive that seizure has a tax 1983 claim is based Taylor, payer way adequate of Parratt v. interpretation in a that could not be by suit, ly remedied in a refund L.Ed.2d 420 amendment, Laing, police the held that it the is without merit. The unable, safeguards procedural required jeop- in federal officers were as ordered the state Court, (1) ardy taxpayer tax assessment cases are: ac- Recorder’s to return the cash seized un- because, sixty days cess to the state search Court within of the der meantime, warrant in the assessment; (2) jeopardy taxpayer ability stay govern- both the federal and the state by posting jeopardy collection of the amount assessed an ments had issued tax assessments seiz- bond; (3) equivalent prohibition ing money. police on sale of officers had lost taxing any property pending money seized final determination control of the to the authorities deficiency police of the the Tax Court. 423 U.S. at and could not return it. The officers 170-71, 184, may intervening, be held 96 S.Ct. at not liable for the su- perseding money by taxing seizure of the au- thorities, 2. To the extent prevented conduct which the officers dissenting opinion that is returning money from in accordance with asserting making correct in is decision From the Recorder’s Court. against po- fourth amendment claim the Detroit officers, point city police of the return of view independent procedural lice officers of his money impossibility. claim, became an Hence this fourth amendment claim can complaint does not state valid claim only namely property, to the refer seizure of against police cash, fourth officers deprivation to a not seizure of the turns therefore on the 167, 183, amendment. The case person Pape, as in Monroe v. answer claim To the body opin- discussed above in the main plaintiff making extent that the such an inde- ion. pendent property claim under the fourth would virtual- fied the warrant and interpretation ordered the Detroit an view, Department, all section eliminate, my Wayne County 1983 Police Or- ly Force, ganized Sgt. Crime Task Det. Mi- claims for Second, DeCamille, Sgt. Mezzone, the ma- chael Det. James distinguish Sgt. Sgt. Roy- between Det. Vincent does Browe and Det. jority opinion against the state defend- den Awe to return to the all claims mon- plaintiffs city ey during claims point, seized search. At this plaintiffs ants and however, respective Department believe the the Detroit Police no money, significantly ap- longer possessed having different rest sur- claims taxing of Fourteenth Amendment rendered it to state and federal au- plications considering Before rights. attempted these different thorities. Plaintiff then to re- claims, however, necessary Michigan Department it is to review cover from the background Treasury Depart- in some detail the factual seized plaintiffs Michigan’s gave jeopardy rise the District ment under assess- Court. ment statutes encountered what the describes series of bureau- “[a] I. procedural impediments.” cratic or That description is indeed understatement of incarcerated follow- While extraordinary difficulty plaintiff en- possession his arrest for of a concealed attempting challenge countered in weapon, Detroit officers obtained a validity assessment plaintiffs warrant to search residence. On through judi- the state’s 6, 1975, administrative and February breaking down the after procedures. cial residence, they the conducted a door of premises search of the and seized certain 25, 1975, plaintiff On March sent the documents, records, together papers and Treasury' Department request of for an $280,100 Intelligence with in cash. The hearing concerning informal the assess- Michigan Department of Trea- of the Unit 1, 1975, April Department ment. On find, sury promptly was notified of this and plaintiff stating referee sent a form letter February on Department, officials of that hearing request timely. for a 28,1975, jeopardy sales tax assess- issued appeal pro- The the form letter described $314,304.90. ment the amount of procedure cess for an “intent to assess” levy assessment and a notice of were plaintiff ignore any and advised to subse- plaintiff County served on at the Oakland quent assessment based on the “intent to 3,1975, jail on March and the Detroit hearing pursu- assess.” A was scheduled County and the Oakland Prosecu- officers repeated- plaintiff’s request ant to but was Department surrendered to tor’s Office ly adjourned plaintiff’s objections. over On $127,- agents money in the amount of 11, 1975, July the Revenue Commissioner the 775.38.1 This amount reflected balance issued an Order of Determination that indi- of funds seized from house departmental practice cated it had been to following levy by a similar assessment and grant hearings in jeopardy informal assess- Internal Revenue Service.2 involving ment matters as well as in cases 7, 1975, assess, but, brought On March an intent to of the an action advice upon General, by plaintiff in Attorney the Recorder’s for the Commissioner Detroit, City Judge statutory jurisdiction Leonard of that ruled there was no departmental jeopardy held that the executing court officers in a had exceeded fact that legal search warrant their assessment case. In of the view authority plaintiff practice the execution of the had of the warrant relied hearings, by seizing property money speci- Department grant such Dept. Treasury, Mich.App. Campbell validity assessment 2. of the is not involved in this Internal N.W.2d 508 Revenue Service appeal. if any injunctive relief even held to issue would Commissioner statutes had been violated. days thirty appeal to file an with allowed Appeals. Tax the Board appeals returned to the court of Plaintiff mandamus and that had issued the writ of appeal filed an with Board Plaintiff jurisdiction retained of the case. On had thirty day peri- within Appeals 7, 1979, refused to set December that court Attorney od, General then moved to but decision, and, modify the Board’s aside or appeal because it had not been dismiss had respect to the issue the Board with statute, filed, required by thirty within decide, plain- the court found declined actual assessment. On October days of position to merit. Subse- tiff’s be without the Board dismissed the however, plaintiff’s application quently, on jurisdiction equitable pow- “lack for rehearing, appeals court of the same er,” acknowledging that the dismissal July that it had been concluded result on unconscionable and an “works retaining jurisdiction after is- in error deprivation of fundamental due obvious suance of the writ of mandamus and that process.”3 7, 1979, im- its decision December “was then turned to Plaintiff providently rendered.” The mandamus de- In an action filed for relief. courts cision was amended to delete the sentence sought a Appeals he jurisdiction,” retain and the decision of “we Depart- compelling the of mandamus writ December was “rescinded and of money Treasury to return the ment force and effect.”7 no further Department of Trea- compelling the him or years, plain- the net After five result of hearing concerning the as- sury to hold tiff’s efforts the state’s administrative August that court On sessment. judicial systems returned but to order declined declined, Appeals the Board of Tax which compelling of mandamus issue a writ did relief, jurisdiction grant for lack of Appeals a hear- of Tax to hold the Board at least one of the issues raised decide highly inequi- ing, noting that “it would be concerning validity jeop- now victimize because table to meantime, ardy In the assessment. changed in departmental practice was mid- tiff had turned to the federal court for stream____”4 appeals The court of or- relief. sixty be held within dered statement, the days and concluded with II. jurisdiction.”5 “we retain Complaint by plaintiff The filed the Appeals then held a The Board of District of District Court for the Eastern concluded in its decision of and 25, 1977, February on named 30, 1978, October assessment groups three of defendants: the “federal capricious arbitrary and and that it was defendants,” Di- consisting of the District penalty under the not the exaction of the Internal Revenue and rector of Service Board, however, de- guise Service, of a tax. The agents certain of the the “state any decision on the issue of defendants,” clined to make consisting of the Revenue alleged statutory procedures violations Commissioner of and certain Treasury making by Department Michigan Department agents of the assessment, defendants,” jeopardy Treasury, “city described and the con- potent argu- plaintiff’s sisting Board as “most of the Detroit officers who ment,” plaintiff’s that under limit- for the reason were involved the search of authority jurisdiction it residence and who had been statutory ed lacked ordered Appendix Campbell, 6. Joint 235. 3. 258 N.W.2d at 509. Id. at

4. 511. Appendix 7. Joint Id. at 512. plaintiff majority opinion sufficiency return is on the Court to Recorder’s during that search. those claims. money illegally seized pursuant to 42 brought the Plaintiff 1985(3), §§ seeking from 1983 and III.

U.S.C. compensatory punitive and all defendants Among plaintiff’s against claims damages. defendants is his claim those acting law, under color of state District Court On October wrongfully defendants’ seized federal motion for his granted the and also summary judgment dismissed assessment statutes and did not plaintiff post-seizure under section provide prompt claims 1985.8 with a against the state and proceeded hearing, depriving case thus him of his the section addition, on 1983 claims. On defendants of law. granted the District Court plaintiff equal protec- June he denied claims was summary defendants’ motion for laws, the state apparently of the a claim tion based August on judgment, Department Treasury on the fact the Court, at the District conclusion of departmental had denied hear- in the trial evidence of the de- tiff’s granted taxpayers that had been other fendants, directed a verdict in favor such confronted with seizures. The Dis- city defendants. Judge specifically trict did not address issues, these because he concluded appeals summary judg- both the Plaintiff summary state defendants were entitled to ment rendered favor of the state defend- judgment immunity grounds. on also He judgment rendered in ants and favor concluded that because had the city defendants on their motion for a opportunity to raise these constitutional is- Although verdict. the District directed sues his state court actions groups Court decided favor of both agencies the state he was administrative facts, immunity grounds, the defendants on precluded relitigating from them in the fed- rights issues and constitutional asserted eral court action.9 substantially plaintiff are different group each of defendants. Each of the A. therefore, judgments appeal, must be respect judgment separately with affirms the be- considered low, states, proper ground,” had made a sec- as it “on different whether group namely, authority claim each of de- that on tion 1983 fendants, Taylor, lower an issue not raised by majori- Vicory Walton, L.Ed.2d 420 but raised and decided

court (6th Cir.1983), plaintiff panel. Each must also 721 F.2d 1062 can- ty of this separately respect satisfy process not the due element considered with of his claim, procedural process group of defendants was en- section 1983 whether each Michigan’s immunity, proce- an issue decided because “corrective titled to by or decided dures” were available to him and his reme- lower court but not discussed panel. “clearly of this I examine first dies under law are ade- majority quate.” against satisfy section 1983 claims holds that to of the due element a because the focus of section 1983 the state 177, (1981), summary judgment S.Ct. L.Ed.2d in favor of the federal 70 271 in which the 8. The by by ready Court Order "[djespite was affirmed defendants Court held that 29, sec- 1981. The dismissal of the provided by dated June access to federal courts Monroe and 1985(3) present claims is not an issue in the tion progeny, taxpayers its we hold that are barred appeal. by principle comity asserting § from 1983 validity systems actions of state tax consider, did not nor did 9. The District Court 116, in federal courts.” 454 U.S. at 102 S.Ct. at appeal, parties in that Court or on this raise 186. possible application of Fair Assessment 100, McNary, 454 U.S. 102 Real Estate Ass'n. v. opportunity meaningful subsequent deprivation alleges a claim, who taking initial determination by a violation property pro- of a existence rights and liabilities. “show process must system- law or a in state deficiency cedural 541, at at 1916. 451 U.S. pro- corrective the state’s with problem ic Parratt, present case does Unlike require- such a broad I believe cess.” unauthorized not involve “a random and applied to such section uniformly all ment, employee” by a state under circum- act beyond per- cases, extends Parratt predict stances in which “the State cannot limits, contrary is to Monroe v. missible To the precisely when the loss will occur.” L.Ed.2d 81 S.Ct. U.S. Pape, contrary, case involves the de- ef- (1961), progeny, and would and its plaintiff’s property by taking of liberate actions section 1983 fectively eliminate officials under an established state state property with- deprivation of upon a based easily the state could procedure which process. out sufficient prisoner’s the loss of a Parratt involved requirements to meet the of due negligence property as a result Co., Logan In v. Zimmerman Brush claim was sole employees. Plaintiff's 1148, 71 L.Ed.2d 265 102 S.Ct. pro- procedural due upon a denial based (his plaintiff’s property claim under past cases Recognizing cess. “[o]ur Act) Employment the Illinois Fair Practices hearing is re- kind of some mandate that taken from him virtue of the state’s was finally a State time before quired at some claim, that eliminated his statutes property inter- person of his deprives a notice, as a result of the failure of a state at ests,” at 101 S.Ct. agency timely to convene a conference on pointed that due out the Parratt Parratt, distinguishing his claim. always require that the not process does emphasized it Parratt depri- the initial place before hearing take with, dealing the cate- fell within vation occurs. impracticable it gory cases in which was “a tortious loss of.... provide any for the state to impossible act result of a random unauthorized it involved hearing because predeprivation employee ... not a result of a state act a state a “random and unauthorized procedure.” some established 541, 101 S.Ct. at employee.” 451 U.S. at Here, U.S., at out, pointed As the Court contrast, system it is the state itself that case, not a result of the loss is such [i]n destroys complainant’s property inter- procedure and the some established law, est, by operation of whenever predict precisely when State cannot timely to convene a Commission fails to conceive loss will occur. It is difficult the Commission’s conference—whether provide a mean- how the could State through negligence, mali- action is taken ingful hearing ciousness, or otherwise. Parratt property, al- place. The loss of takes designed such a situation. not to reach though the State as attributable to (second id., at 101 S.Ct. at 1917 See law,” in almost all is under “color of concurring opinion). the com- Unlike of the State. beyond cases the control Parratt, Logan challenging plainant in Indeed, only im- it is not most cases error, “es- but the Commission’s provide a impossible, to practicable, but destroys procedure” state that tablished depriva- meaningful hearing before according him without his entitlement course, mean, of tion. That does not safeguards. proper procedural property can take without that the State 435-36, 1157-58. at 455 U.S. at 102 S.Ct. meaningful post-deprivation providing a second in Logan The reference ex- hearing. prior which have cases was to that concurring opinion in Parratt requirement have prior-hearing cused said, who availability of some of Mr. Justice Blackmun part in rested

539 “random procedure and unauthorized” to demonstrate—in [w]hile order negligent by employ- nature acts state state a section 1983 claim—that state dam- makes it ees difficult for the State to age inadequate remedies are to redress the “provide meaningful hearing before alleged wrong. place,” ante, takes at 541 As Mr. Justice Blackmun observed in 1916], S.Ct. at it is rare that the [101 Parratt, in majority of cases in which a same can by be said of intentional acts person’s property by is taken the state employees. state possible When it is for under an procedure, established state procedures a State to institute to contain provide failure to adequate process prior to and direct the intentional actions of its inflicting the harm would violate the due officials, required, it should be as a mat- process true, course, clause. This is not process, ter of due to do so. See Snia- in all cases. It is clear in thát some situa- Family Corp., dach v. Finance 395 U.S. may deprive tions a state person prop- 1820, S.Ct. L.Ed.2d [89 349] erty, even under an proce- established state (1969); Shevin, Fuentes v. U.S. dure, prior hearing, without a if the neces- 1983, (1972); S.Ct. 32 L.Ed.2d [92 556] sity quick for action or the necessity to Goldberg Kelly, 397 U.S. 254 [90 protect important governmental an pub- 1011, (1970). 25 L.Ed.2d In the ma- 287] lic interest is involved and the state has cases, jority pro- of such the failure to conjunction depriva- with the adequate process prior inflicting vide meaningful tion a postdeprivation hearing. the harm would violate the Due Process Although present case involves an es- The mere availability Clause. of a subse- statutory procedure, tablished state sei- quent remedy tort before tribunals of the pursuant jeopardy zures assessments that, authority through same employ- necessary protect important gov- ees, deliberately inflicted the harm com- interest, special ernmental and a need ex- of, plained might provide well not very prompt ists action. Laing v. of which the Fourteenth States, 161, 187, United U.S. 96 S.Ct. speaks. Amendment 473, 487, (1976) (Brennan, 46 L.Ed.2d 416 451 U.S. at 101 S.Ct. at 1918. J., concurring). Therefore, a may, Thus, as I read Parratt and Logan, providing predeprivation hearing, person deprived when a of property as a taxpayer’s property seize a under such a of a result random and unauthorized act of if, statutory procedure if, only but employee, a state opposed as to an act procedure provides prompt post- also taken in accordance with an established deprivation meaning- that is —one procedure, person may be re- only point ful not of time but also quired, in order to state a section 1983 manner in which it is held. Armstrong v. claim, to demonstrate that available state Manzo, 85 S.Ct. inadequate remedies are to redress the al- leged wrong. The explicitly Parratt Court This, course, precise is the distinguishes constitu- type of case from cases tional issue raised his section depri- such as one which the action, namely, his claim is the that Michi- statutory vation direct result of a gan taxing authorities seized deliberately put place property his scheme under that state’s Parratt, jeopardy state. 451 U.S. at assessment 1916; providing statutes without him Logan, at accord 455 U.S. at with the prompt postdeprivation In required by 102 S.Ct. at 1158. this situation the part proce- Laing, statutory of that state —as established construc- provide hearing safeguards unnecessary tion made it dure —must to reach this due satisfy process. Nothing process question, sufficient to 184 n. person deprived requires of S.Ct. at 485 n. but in the view of at of actions sixty-day a result taken least one Justice a delay after a state officials an established assessment obtaining ac- Tax under section to the Court was a denial of due tional claims asserted 1983 as cess 187-88, 423 U.S. at 96 S.Ct. at 487 process, claims.” well as his state J., (Brennan, concurring). It is clear that majority opinion upon rests a rule of Michigan Supreme 1976 the in Court was by this in its recent law announced Court concerned about the issue of whether the Walton, Vicory 721 F.2d 1062 decision Michigan question pro- statutes in their—in Cir.1983). Although Vicory is some- (6th appeal visions for the Board of Tax Parratt, analogous the what situation Appeals provided constitutionally the for — allegedly wrongful in that the retention of required prompt postseizure hearing. As a property apparently was the result of concern, Michigan result of that Su- random and unauthorized conduct of a Craig City Detroit preme Court in official, this state Court stated its rule Department, Police Mich. very broadly: that case (1976),judicially N.W.2d 236 created anoth- Par- authority conclude We under taxpayer er forum for in the action —an Taylor, ratt v. circuit taxpayer’s court of the residence— that in sec- provided taxpayer could show the exist- irreparable damage deprivation for injury ence of and the lack of a tion 1983 suits factual basis It should property process for the assessment. without noted, course, remedy that did plaintiff pleading has the burden of not exist in Michigan plaintiff’s prop- when proving inadequacy pro- of state erty taxing was seized the state authori- cesses, including damage remedies ties. wrong. to redress the claimed

A court called to decide the consti- Vicory, 721 F.2d at 1063. by plaintiff in tutional issue raised this case plaintiff Inasmuch as the consider, therefore, would have to whether him, he case had available to at the time postdepriva- plaintiff’s inability to obtain action, brought state court his section 1983 hearing Ap- the Board of Tax tion wrong by remedies to redress the claimed years hearing peals for over two —a including a state the state jurisdic- declined on which the Board then federal constitu- court action “to test his raised grounds tional to decide all issues claims,” majority tional concludes that process taxpayer —denied Vicory require- failed meet the due him under the Fourteenth pleading proving inadequa- ment of Amendment. cy of court remedies. not determine whether does view, Vicory my goes In rule too far. plain- extraordinary delay granting Parratt nothing contains that mandates hearing constituted a postdeprivation tiff a in all section 1983 dam- requirement such a constitutional of due denial —the age suits based on property by plaintiff’s section 1983 ac- issue raised As noted Instead, state defendants. tion earlier, dealt type with limited Michigan the fact has it refers to activity random and unauthorized act —the procedures” in the form certain “corrective employee. type case, of a state court actions that of available adequacy damage of state remedies to namely, pursued, an tiff could have wrong might redress the claimed well be Michigan Supreme from the If, however, relevant. state officials delib- Ap- decision of the Board of adverse erately deprive person peals, recovery action procedure an established state that could Claims, and an predeprivation proper in the Court of Circuit not, or, hearing predeprivation but did if no According to the ma- residence. required, was feasible or failed to jority, open “it to file in provide proper postdeprivation hearing, Wayne County post Circuit Court complete, seizure to test his federal constitu- violation plaintiff might avail- case the was un- other remedies fact that able to postdeprivation to redress obtain a in the state courts hearing able de- wrong Appeals does not constitutional before the Board of Tax for over claimed plaintiffs years section 1983 claim. feat the two after his had been sum- marily Department law seized of Trea- has a no answer that the State It is sury. in give if relief. Board itself noted its earlier enforced would which to the order that remedy supplementary inability its hear the federal not be remedy, plaintiff latter need first appealed state and the when to the Board the fed- sought first and refused before was “an obvious of fundamen- eral find, one is invoked. process.” tal due A court could as apparently thought, the Board U.S. 81 S.Ct. Pape, Monroe v. process or, tiff indeed had denied due been (1961). 473, 481, L.Ed.2d 492 words, alleged in other constitu- words, Parratt, in other dealt with the complete. The tional violation was fact a due violation question whether and, persisted in his efforts inability of complete. The had ever become action, ultimately a mandamus forced procedures state to into build give the state to him a before the required by pro- predeprivation hearing extinguish Board would not the violation. random and unauthorized cess—due to the Nor would the fact that could then the exist- of the state action—made nature appealed the Board’s adverse decision processes to redress adequate ence Michigan brought to the Court or satisfy due wrong sufficient to the claimed independent Thus, of the constitu- process. no violation Court of Claims or in the Circuit process requirement had ever tional due Appeals to assert his constitution- rule, stated, as and Vicory occurred. The from the fact that he had al claim detract case, majority in applied by may denied due The state been however, by in- go beyond would and well have these even other cluding its reach those cases within wrongdo- remedies for redress of its own deliberately which the state has taken and ing Congress provided remedy also property pursuant retained to an estab- —but § 1983, clearly it is in 42 U.S.C. procedure lished state which the state remedy “supplementary to the state reme- clearly ability provide had the but failed to Monroe, dy.” 365 U.S. at 81 S.Ct. at predeprivation postdepri- or the either process violation has 481. When the due hearing required by Fourteenth vation Thus, with an established occurred connection Amendment. while the state’s fail- procedure, plaintiff should not be rel- provide such a would com- ure to violation, egated Wayne County Vicory Circuit Court plete the constitutional his federal deny deprived plain- other state court “to test would nevertheless long claims asserted under section court so as the constitutional tiff access to federal prop- including The federal courthouse was a process, 1983.” state offers some remedies, test those federal damage redress its own er forum for circumstances, and, my opinion, wrongdoing. constitutional claims these Under not close those doors when nothing require- the rule acts as than a Parratt does less remedies, person’s right to ment of the state has violated a exhaustion of state us- approach defining under its estab- the elements claim, is, therefore, though a section 1983 the state has procedure, even lished process” contravention of Monroe to reme- Patsy form of “corrective some Regents Florida, Pape, wrongdoing. Board State Monroe v. dy its own 102 S.Ct. L.Ed.2d 492 L.Ed.2d 172 (1982).10 bringing Patsy set forth in an action in fed- reiterated rule Monroe state remedies before plaintiffs need not that section 1983 exhaust eral court. Johnson, employees, brought service sec- 699 fied civil Recently, Wilkerson court, Cir.1983), 1983 actions in federal contend- this Court affirmed tion (6th

F.2d them, discharging ing in in plaintiffs section 1983 for deprived property right of their agents had them of a state defendant any pre- depriving continuing employment to without plaintiffs for of licensing agency prompt postdepriva- deprivation or process without due of property liberty and rights hearing, in of their to refusing plaintiffs a De- tion violation license. law procedural process under the Four- plain- that case contended that in fendants teenth Plaintiff Loudermill any deprivation Amendment. to show “with- failed tiffs discharge law,” appealed had his to the Cleveland process because the out due Commission, hear- Civil Service which held provided procedure to reme- Tennessee discharge. ings It but affirmed his Plaintiff any wrong by the defendants. dy done that under Parratt therefore, Donnelly appealed had to the Parma Civil argued, Commission, hearing, Service which held a finding of a section 1983 there could be no reinstated, provi- argu- ordered him but made no flatly rejecting this violation. said, backpay. Although ment, sion for the award of this Court provided appeals to the state of Ohio case for Parratt does not control pleas courts from such the Ohio common in Par First, holding reasons. two determinations, nei- adverse administrative light in ratt must be construed plaintiff appealed ther but instead filed sec- Patsy recent decision Supreme Court’s court. tion 1983 actions in the federal Florida, Regents Board State 496, 102 S.Ct. 73 L.Ed.2d Loudermill The claim asserted both case, (1982). In that the Court held Donnelly deprivation of —a § plaintiffs need not exhaust any predeprivation without administrative remedies before hear- any prompt postdeprivation bringing an action in federal court. asserted ing essentially the same claim —is Pape, the decision Monroe Since present by plaintiff case. 473, 5 L.Ed.2d 492 case, present like Loudermill and tiff in the § (1961), it the rule that a has been admin- Donnelly, did not the adverse attempt his plaintiff need not to vindicate appel- to the state istrative determination her claim in court before assert chose, instead, or pursue to his late court but apply the in federal court. To it court. section 1983 action federal holding of Parratt outside the prisoners’ This Court Loudermill had no trouble with Mon rights context is inconsistent plaintiffs rejecting contention Patsy. roe required pursue judicial remedies were to F.2d at 329. provided them the state of Ohio. personally believe that IWhile By refusing require exhaustion prison- application “outside remedies, does the Court even administrative context,” fully agree rights Patsy judicial ers’ little room for a left it clear that progeny make Monroe and its requirement____ Plaintiffs exhaustion plaintiff need not resort a section seeking vindicate their constitutional by the state in order to proce remedies whether substantive rights, remedy for a viola- nature, court the federal dural in United Church of obtain rights, re- constitutional v. Medical Center Com tion of Medical Center rights are sub- mission, (7th those gardless of whether 689 F.2d 697-98 Cir. in nature. 1982), opportu deprived stantive or cannot be nity proceed in the federal courts. applica- more and even Even recent more Loudermill, (emphasis add- 721 F.2d at 555 deci- this Court’s present ble to the case is ed) (footnote omitted). likewise This Court Bd. v. Cleveland sion in Loudermill availability holding that the Education, Cir.1983). In no trouble (6th had 721 F.2d 550 wrong- remedying a procedures for classi- of state case, plaintiffs, this consolidated two property by ful the state and the individual that must be accommo- necessarily satisfy the due, does not dated to determine what process requirement of the Fourteenth this Court concluded that the failure to Amendment. give plaintiffs opportunity words, provid- challenging proposed evidence

In other fact that Ohio dis- charges they appellants ed this case with full evi- occurred violated the hearings dentiary after termination does Fourteenth Amendment. 721 F.2d at 563. suggest that no other Court, however, stop This did not there. It independently due. We must determine carefully question also considered the post-termination hearings whether delays providing plaintiffs whether the in provided statutory under Ohio’s scheme postdeprivation any hearing denied them process require- satisfied federal due process. In due Loudermill’s case the Civil ments. Service Commission did not conduct a hear- ing Loudermill, eight before the full commission until 721 F.2d at 560. discharge. Donnelly’s months after his principles, These same fundamental in case the Civil Service Commission did not view, my clearly applicable hearing hold a until nine and one-half they case as were to the Louder- discharge. months after Recognizing his here, plain- cases. Plaintiff like the mill process requires that “due hearing that a Loudermill, required in was not tiffs held, just meaningful manner,’ not ‘in a pursue an time’,” ‘meaningful but also at a the Court court from the adverse decision of the ad- delay holding held that in postdepriva- agency certainly and ministrative hearing tion “must be ‘excessive’ or ‘unrea- required to file a claim with the state’s process sonable’ before federal due is de- bring in the court of claims or an action nied.” 721 F.2d at 563-64. Acknowledg- seeking circuit court before relief in “determining time reasonable Also, availability the mere federal court. period easy exegesis,” defies the Court con- Ap- of a before the Board of Tax delays cluded that the in that case did not peals (especially considering when it was process. violate 721 F.2d at 564. granted hearing) nature of the availability separate legal the mere ac- plaintiff’s Because the merits of constitu- tions in the court of claims or the circuit tional claims were not decided the Dis- question court does not answer trict Court and have been neither briefed plaintiff’s property whether the state took argued appeal, nor on this it would be providing him inappropriate point. to resolve them at this process required by the A Constitution. The critical issue here is whether a must, court as this in federal Court did position given oppor- in such a an should be Loudermill, independently determine tunity press such claims federal court plaintiff’s opportunities post- whether in a my section 1983 action. It firm deprivation hearing satisfied federal due belief that did state federal process requirements. legitimate claim, court a section 1983 carefully required pursue This Court Loudermill con- he was not either the question judicial sidered whether failure administrative or remedies provide any predeprivation by Michigan resorting of the state to before to the federal court, was a violation of and that the mere availability of distinguished ques- It Parratt as a case those remedies does not answer the process affording depriva- they tion of whether constituted all the which “just practical,” tion was not feasible or that was due under the analyzing, 721 F.2d at 562. After in ac- Fourteenth Amendment. The existence opportunity Eldridge, cordance with Mathews v. “to test his federal constitu- (1976), or, 47 L.Ed.2d 18 tional claims” in the state circuit court indeed, competing government interests of the other state forum does not Rhodes, testing those consti- L.Ed.2d and Scheuer v. prevent plaintiff from claims in the federal court. tutional

(1974). For the stated in the Dis- reasons thorough carefully trict Court’s writ- B. opinion, summary ten affirm the would earlier, plaintiff, addition to As noted judgment against on defendants proce- a denial of his his claim based immunity grounds.11 rights under the Four- dural due Amendment, a claim also asserted teenth right equal protection of upon his based IV. Amend- the Fourteenth the laws under majority opinion makes no distinc- from the fact claim arose ment. The latter ruling tion between the District Court’s on Treasury- Department of although the summary the state defendants’ motion for prop- taxpayers whose always granted had ruling and the District Court’s as- erty had seized been defendants’ motion for a directed hearing, departmental sessments verdict at the close of evidence. suddenly practice tiffs case Presumably affirms both rul- he was denied a even stopped, and ings ground on the that failed to Al- scheduled for him.- after one had been requirement Vicory pleading meet the not discussed in the

though this claim is proving that available state remedies majority opinion, neither Parratt nor Vico- inadequate systemically defective. anything prevent that would ry contains Finding plaintiff's remedies under Michi- asserting this 1983 plaintiff from section gan “clearly adequate,” law to be the ma- court, equal protection claim federal re- jority judgment also affirms the in favor of may gardless of whatever state remedies city defendants. wrong. of such a exist for the redress my opinion, plaintiff’s section 1983 against police action the Detroit officers is C. process “procedural not a due Although disagree I with the “different § 1983,” and, brought under 42 U.S.C. ground” upon which the chooses therefore, neither nor Vicory summary to affirm the District Court’s any application have should judgment in of the state favor against section 1983 claim defend- correctly District ren- believe the ants. immunity dered that on the grounds upon which the motion was based. A. carefully considering After the affidavits discovery support- against and extensive materials Plaintiff’s claim defend- motion, upon allegedly noting that the state de- ants is based unreasona- fendants relied the advice and recom- ble search and seizure of his precisely mendation of counsel and that the infirmi- Detroit the same officers— Michigan’s Pape, ties assessment claim made in Monroe v. 365 U.S. ' 167, 473, (1961). regarding postdeprivation statutes hear- 81 S.Ct. 5 As L.Ed.2d 492 out, ings pointed were not known to that defendants at Court Monroe time, guarantee held that the state “the unreasonable defend- in the immunity ants were entitled to searches and contained Wood seizures 992, Strickland, 308, applica- made v. 420 U.S. 95 S.Ct. 43 Fourth Amendment has been necessary plaintiffs It action in the Michi is not to consider alternative It is doubtful that Court, i.e., light suggested by gan appeals, basis of that District circuit court of regarding jurisdiction, precluded proceeding against from court’s determination effect, preclusion primarily by the state defendants reason claims would have Cf. Education, unappealed Migra City District Bd. adverse decision of the Board of School v. Warren -, 892, Appeals. 104 S.Ct. 79 L.Ed.2d But see Loudermill v. Cleveland -U.S. Education, (6th Cir.1983). Bd. 721 F.2d 550 56

545 by reason of the to the States Due these Amendments ble have been appli- held the Fourteenth cable to the Process Clause Amend- States adop- virtue of the Colorado, 338 U.S. 25 tion of the Fourteenth ment. Amendment. See [69 Wolf Ohio, 1782]; Mapp Elkins v. 1359, 643, L.Ed. Unit- 93 367 U.S. S.Ct. 206, States, (1961); 213 ed Robinson v. 364 U.S. S.Ct. [80 California, 365 370 L.Ed.2d U.S. at S.Ct. 1669].” (1962). Respondent seems clear L.Ed.2d 758 It here re- S.Ct. at 475. the Court right, fers to no other referring privilege, to the or immu- was not nity secured Constitution or process requirement feder- Fourteenth al but, instead, laws other than the Due substan- Process Amendment Clause of the Fourteenth requirement Amendment tive process simpliciter. as described in Amendment Wolf: exacts from This clause States for U.S. at S.Ct. the lowliest ^[319] erty.” “implicit at 325 [Palko in the and the most [58 v. Connecticut concept outcast all that ordered lib ] 82 L.Ed. posed violate an individual’s ratt, Thus, as I understand and Monroe Par- if the state’s conduct can be said to procedural, substantive, rights the op-

288]. violation of the Fourteenth Amendment is conveys Due of law complete thus neither conduct, at the time of such nor fixed nor require- formal narrow the fact that the may procedures It compendious expression ments. is the depriva- redress of that tion is of rights consequence for all those no in a which the section 1983 courts Hudson, In Palmer v. action. they must enforce because F.2d are basic to (4th Cir.1983), the Fourth Circuit rec- society____ our free ognized the by stating, distinction security against of one’s privacy ar- Taylor v. Parratt does not trench bitrary police intrusion is —which right to a remedy 1983 for an unrea- at the core of the Fourth Amendment —is search, right sonable for the violated is society. basic to a free It is therefore right privacy the substantive and not a implicit concept in “the of ordered liber- right See ty” and as such enforceable Taylor, Parratt v. 534-6, 451 U.S. at through States the Due Process Clause. Monroe [distinguishing S.Ct. at 1912-13 27-28, at U.S. 69 S.Ct. at 1361. Pape, 167, 473, 365 U.S. 81 S.Ct. solely dealt with a claim of a (1961) L.Ed.2d 492 ]. process, denial and the 697 F.2d at 1225. Supreme carefully distinguished Court this In looking plaintiff’s evidence in the type of claim from the substantive due light most Dowdell v. plaintiff, favorable to claim involved Monroe: Industries, Inc., U.S. 641, 495 F.2d only deprivation respondent alleges (6th Cir.1974), (a) I conclude plaintiff’s complaint rights in his is that “his evidence was sufficient jury create a the Fourteenth Amendment of the Con- question issue on the of whether city stitution of United States were violat- plaintiff’s defendants violated rights under deprived ed. That he was of his the Fourth and Fourteenth Amendments App. and Due Process of Law.” 8. As (b) plaintiff’s own evidence did not such, respondent’s claims differ from the immunity establish the defenses upon Monroe claims were before us in which city which the defendants relied. Pape, supra, which involved violations Amendment, the Fourth and the Gamble, presented in Estelle v. claims Although the search warrant does not 429 U.S. 97 S.Ct. 50 L.Ed.2d 251 appear part as a of the record appeal, on it (1976), alleged which involved violations opening is clear from the statement of de- Eighth of the Amendment. Both of fense counsel that the search warrant list- First, “plain view Golay “all doctrine” following property to be seized: ed the case, plain and it clear that the view documents, including pho- books, records requirement is limited doctrine illegal to homicide and related tographs discovery plain “the of evidence view guns all and bul- transactions and drug be Coolidge must inadvertent.” v. New (Joint 627.) Appendix This is virtu- lets.” 443, 469, Hampshire, 403 forth in the language set ally the identical In the the Record- Judge Leonard of decision of case, testimony at trial of two money seized finding that the er’s Court police of the defendant officers that scope search was not within the officers were told advance of the search 65). (Joint In the ar- Appendix warrant. house plaintiff’s to search also for mon- for directed gument defendants’ motion on Awe; (Joint Appendix ey Officer Joint verdict, counsel conceded defense Mazzone) Appendix Officer was suffi- “says that based Judge Leonard’s order jury question issue on the cient to create constitutional law upon the available of whether the defendants had violated ex- that this search dealing with searches plaintiff’s and Fourteenth Amend- Fourth per- that which the constitution ceeded Supreme rights. ment As the 683.) (Joint Appendix As mits.” out, Coolidge pointed appeal, “the war- defendants stated permitted legiti- This Court has never being specified a number of items rant planned mation of a warrantless seizure (Appel- include cash.” sought, but did not ..., plain grounds, and to do view so 9.) brief, p. lees’ flatly here would be inconsistent with the specifically re Amendment The Fourth existing body of Amendment law. Fourth quires particu warrant must that a search at 471 n. at 2041n. 27. 403 U.S. S.Ct. larly things “the to be seized.” describe that, argument, hav- Defendants’ second As the said Marron v. ing broken down door States, United house, taking police justified in were L.Ed. 231 “duty” to they had some the cash because requirement that warrants shall [t]he cash, little comment. protect merits particularly things describe insecure, Having made house general seized makes searches under posting made it secure could have impossible prevents the seizure them replaced. police guards until the door was describing thing of one under a warrant Furthermore, appear that it does not taken, to be another. As to what is money to deliver the effort was ever made nothing is left to the discretion only a plaintiff. It would be not executing the officer warrant. dangerous rule of law that novel but illegal and seizure would excuse an search at 48 at 76. 275 U.S. S.Ct. ground breaking into a on the that the appeal, the this defendants do On subject property home renders the therein attempt argue that the seized not theft, and, therefore, any and all items scope of the warrant. was within the of value can be removed the with Rather, justify seizure they attempt to the impunity. It is precisely type this of con- (1) per- seizure was grounds: on two duct law enforcement officers that the Golay, 502 v. missible under United States prohibit. Fourth Amendment was meant to Cir.1974), (2) (8th police, or F.2d 182 plaintiff’s the door of having broken down house, protect duty Judge “to had a The District did not discuss the removal sufficiency theft or uncovered from of the evidence establish a brief, (Appellees’ plaintiff’s rights constitutional persons.” unauthorized violation view, but, 11.) my instead, p. argument, granted defendants’ motion Neither immunity grounds. de- a directed verdict on support granting would so, doing inadvertently ap- In he verdict. believe fendants’ motion for a directed thereby- immunity an incorrect standard and fied In plied reversing defense. stated, court, said, In his ruling error. he lower this relying upon committed decisions, many Harlow and other only prove Plaintiff need essen- [t]he very sim- tial elements 1983 which in a Section 1983 [w]hile ple, these action bears the of pleading but in burden the establishment elements, proving that deprived the defendant essential when the Defendant him faith, right of a federal good acting has ... while question raised the law, of state are due color or territorial Plaintiff —and when the facts asser- qualified immunity tion of applied is an show that this has been affirma- reasonable, pleaded tive defense which does must be then Plaintiff have proved by the defendant burden to that these officers official. show good acted bad faith or lack of faith squarely and that is what the Court of Therefore, light of Harlow’s modifica- Appeals in circuit held in v. Geha qualified tion of the immunity standard O’Brien [sic]. and the Court’s recent instruc-

(Joint 690.) Appendix tion to this circuit apply Harlow retro- O’Brien, actively, Sanborn, It is true Jihaad 691 F.2d Wolfel (6th (6th Cir.1981), Cir.1982), said, we F.2d 556 this Court hold that a Section 1983 defendant retains the bur- pled immunity defendants official [t]he pleading den of qualified immunity as an defense. affirmative It was defense, Fitzgerald, Harlow v. acting contested that within O’Brien at 102 S.Ct. at proving scope discretionary authority of his clearly either law was not estab- hearing. in conducting the This was suf- at the alleged lished time of prima ficient case to establish facie or, injury, if was clearly the law estab- proving entitlement. The burden of lished, that he neither knew nor should O’Brien entitled was not to official immu- known legal of the relevant stan- nity plaintiff. was then extraordinary due to dard circumstances. tiff failed to show the defendant 819, 102 Id. at S.Ct. at 2739. Since the was not to immunity entitled under one placed district court prov- the burden of of the tests forth in set See Wood. qualified immunity defense on Jones, (5th Douthit v. 619 F.2d wrong party, we remand this case to Cir.1980). The defendant O’Brien the district court for reconsideration of entitled to under the doctrine light opinion. this issue of this qualified immunity. official 706 F.2d 645 F.2d at 564. present case, question there is no I interpret As Harlow v. Fitzgerald, plaintiff’s property that when was seized dealing the law with search warrants and (1982), and this Court’s later decision prohibition Fourth Amendment Alexander, (6th

Alexander v. F.2d seizing articles not in the listed warrant Cir.1983),the above statement from Jihaad clearly Although established. it would represent does not the current standard to open still try be defendants to applied. cases, As I those read a section they prove neither nor knew should have burden any has no at time to legal of the known relevant standard due prove that a is not defendant entitled to circumstances, extraordinary the defend- immunity. always is on The burden ants never had to that formidable meet plead prove defendant to entitle- both Judge challenge because the direct- District immunity. ment to the Al- claimed ed a at the verdict their close of favor case, Judge, exander District like the plaintiff’s evidence. Judge case, required District in the prove Harlow, defendant As said in protection quali- established, not entitled to clearly of the the law was “[i]f fail, ordinarily should immunity defense official competent public reasonably HOLLIDAY, since him Robert G. behalf of his con- governing the law persons should known similarly other self and all situ 818-19, S.Ct. at duct.” 457 U.S. ated, Plaintiff-Appellant, plaintiff’s nothing in There is 2738-39. show that would

own evidence not did know case CORPORATION, officers Corpo Xerox XEROX of the known law and should not Plan, Sharing Retirement ration Profit warrants, namely, that applicable to search Corporation In and Xerox Retirement for and seizure the search Guaranty Plan, Defendants-Ap come warrant in the violates specifically listed pellees. Therefore, my Amendment. the Fourth No. 83-1058. committed error opinion, the District plaintiff’s close own directing at the Appeals, United States Court of favor of the de- a verdict evidence Sixth Circuit. qualified of their ground fendants on the immunity. Argued March April 25, Decided

Y. believe, If,

. section 1983 “has as some judicial Frankenstein mon- evolved into course,

ster,” Congress, of then can act scope remedy

to narrow the as it

now has been defined decisions of the during past

Supreme Court two dec- concerned, however, that,

ades.13 am be, they may judicial

commendable as at- relegate

tempts to more and more the state courts for

tiffs to remedies may cases result in baby just

throwing the and not the bath court house.

water out of the federal stated, I

For the reasons conclude that judgment summary of the

the affirmance correct,

in favor of the state defendants given in the

but not for the reason

opinion, respectfully and I dissent from majority opinion affirm- portion of the granting entered on city defendants’ motion for a direct- at the close of evi-

ed verdict

dence. Walton, Journey (6th Vicory Continues Its Cir.

12. 721 F.2d Bertelsman, Narrowing 1983) Ever Paths Section 1983 Down the (concurring opinion Dis Analysis An Due Process Clause: Judge). trict Taylor, Pepperdine L.Rev. 579 (1982-83).

Case Details

Case Name: Chester Wheeler Campbell v. Joseph Shearer

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 24, 1984

Citation: 732 F.2d 531

Docket Number: 82-1665

Court Abbreviation: 6th Cir.