Richard S. Sprague v. F. Emmett Fitzpatrick, Jr., Individually
546 F.2d 560
3rd Cir.
1976
Check Treatment

*1 unprotected sight already begun handcuffing area within Embry. into an Tran- voluntarily is nevertheless not aban- police script Suppression Hearing at 30-32. is in- when the defendant’s action doned point occurred no later than the The arrest by illegal police g.,E. activity. Unit- duced Diskin, Embry was at which handcuffed Merritt, (3d v. 293 F.2d 742 Cir. ed States point at this Diskin had seen heard and Henderson, 1961); Lawrеnce v. 478 F.2d nothing running Embry on a 1973); (5th Wainwright, Cir. Fletcher v. public street. (5th 1968). Cir. In Merritt and courts, It seems me that federal above Fletcher contraband was thrown from a all, adopt should be careful not to end unprotected into an after po- window area means justifies approach en- to law illegally premises, lice had entered the Unless fourth forcement. amendment Lawrence, the contraband hidden in was implemented are following illegal car police an arrest. cases, they will unpopular surely compro- be Similarly, Jeffries, Commonwealth v. generally and personal security mised our 320, 311 A.2d Pa. held inadmissi- dignity sacrificed to that extent on the heroin which was ble thrown expediency. I would altar reverse. police illegally pursued street as the defend- Embry ant on foot. Since did not throw packet heroin until after chase of capture imminent, blocks his

several voluntarily it,

did not abandon and the her- must, suppressed.3

oin be The

plain view doctrine is inapplicable also since police properly

it is axiomatic that the must * position in a to have the view. SPRAGUE, Appellant, S. only justification given for the ensu- arrest was observation Miller Officer v. packet aluminum he recog- FITZPATRICK, Jr., F. Emmett typical nized as a heroin container. Absent Individually, Appellee. evidence, probable officers lacked No. 76-1266. to make cause the arrest. Appeals, United States Court of Ill Third Circuit. Wholly apart foregoing from the discus- Argued Oct. sion, the arrest at illegal because the ar- the arrеst was made moment Decided Dec.

resting probable officer lacked cause. To probable cause, majority rely

establish testimony Miller

upon the of Officer con-

cerning familiarity pack- with ‍​‌​​​‌​‌‌​​​‌​​​‌‌‌‌​​​​‌‌‌​‌​‌‌‌​‌​‌​‌​‌​‌​‌​‌‌‍narcotics recognition package

aging and by Embry package. as such a Had

thrown Miller made the arrest this testimo-

Officer However, be relevant.

ny would Officer testified Embry that he did not see

Diskin package

throw that Miller did not Diskin, he, him of it until

apprise after prosecution’s 3. The reliance United we found in Martin that abandonment Martin, (3d 1967) States 386 F.2d 213 Cir. by exploitation narcotics was not induced curiam), (per illegality which at the initial was not directed (1968), misplaced. 21 defendant. Merritt, supra, the situation Unlike before us in *2 Pa., Rutter, Philadelphia, B.

Thomas appellant. Stopford, M. Jeffrey Beasley, E.

James Hewson, Stop- Casey, & Beasley, Colleran Pa., ford, appellee. Philadelphia, SEITZ, and HUNT- Judge, Before Chief GARTH, Judges. Circuit ER and III, HUNTER, Judge: Circuit JAMES First Assist- Sprague, A. former Philadelphia Coun- Attorney of ant District of his dismissal ty, from the appeals Fitzpa- F. Emmett against damages Attorney Philаdelphia trick, District as below a Treating the dismissal County. Fitzpa- for defendant trick, we affirm.

I. dispute. are not in facts The material Attorney took office District Sprague, had been First A reporter Philadelphia Inquirer in 1973. who As- for the Attorney District sistant asked on Fitzpatrick’s comment predecessor, agreed Sprague sharply disput- trick’s remain disclaimers. The First Assistаnt is the truth of each. position. District ed the This interview was Attorney’s ego.” published on December “alter assists the and on De- Dis- *3 5, Fitzpatrick Attorney formulating policy, cember demanded pri- trict is refused, marily responsible resignation. Sprague When for administration discharged basis, Fitzpatrick him. keeps the daily Attorney District in- formed about the of the vari- Sprague damages filed an action for of office, units in ous the and acts in the $500,000 against Fitzpatrick in the United Attorney’s place District when latter the is District States Court the Eastern Dis- short, unavailable. In First the Assistant trict of Pennsylvania. alleged the Attorney’s the District second-in-command. District Attorney’s discharge decision to him rights because of the of exercise his 1974, In the District Attorney’s office under the first and fourteenth amendments post-trial working on was motions concern- deprivation amounted to a of his constitu- sentencing ing Joseph of Nardello. tional in violation of 42 U.S.C. Nardello, long who had a record, criminal 1983.1 Jurisdiction § was founded on 28 had been receiving convicted of stolen 1343(3).2 U.S.C. § 1969, goods Sprague 1969. Since and his repeatedly subordinates had sought to rec- Fitzpatrick moved to dismiss. He con- year ommend a to 5 prison sentence for 12(b)(6) tended under Fed.R.Giv.P. 2V2 Nardello, the argument but on post-trial District Attorney immune suit from delayed. repeatedly July motions was of under section 1983 and that had 1974, Fitzpatrick interceded in the Nardello therefore failed to state a claim He personally apрeared Nar- granted. relief could be Under before Fed.R. sentencing judge 12(b)(1), dello’s and recommended Civ.P. he averred that the suit was probation. actually against City Philadelphia, of not “person” which is a meaning within the Fitzpatrick After it was discovered that of section and that the court therefore represented had Nardello’s co-defendant on jurisdiction lacked over matter. charge leaving federal blackmail before April On Fitzpa- the court denied private practice, journalists began to in- trick’s motion and ordered to file an quire about Nardello matter. answer. parties also ordered both file to responsibility trick denied for the decision pertaining affidavits to their official rela- to probation recommend for Nardello. tionship and the surrounding Spra- facts Three times he attributed the recommenda- gue’s discharge. They complied. tion to various subordinates who had case; worked on the once referred to an Although the record is unclear on the agreement, supposedly worked point, out under apparently district court then de- sponte, predecessor, jail cided, his sua recommend to reconsider its denial term for Nardello. motion to July dismiss. On 1. Section 1983 reads as follows: original juris- The district shall who, Every person any any by under color of stat- diction civil authorized law ordinance, ute, regulation, custom, usage, or by any person: to be commencеd any Territory, subjects, State or or causes deprivation, . To redress the un- subjected, any citizen of United law, any statute, ordinance, der color State jurisdiction States or other within the regulation, usage, any right, custom or deprivation privi- rights, thereof to the privilege immunity or secured the Consti- leges, or immunities secured the Constitu- by any tution of the or United States Aсt of laws, party shall tion be liable to the Congress providing equal rights of citi- law, injured equity, action at in an suit in or persons jurisdiction zens of all within the proper proceeding for other redress. of the United States . 1343(3) reads Section as follows: ap- 47 L.Ed.2d parties to court directed (1976). argue the relevance pear Education, v. Board procedurе followed court 20 L.Ed.2d 811 actually a dismissal for failure to state ‍​‌​​​‌​‌‌​​​‌​​​‌‌‌‌​​​​‌‌‌​‌​‌‌‌​‌​‌​‌​‌​‌​‌​‌‌‍not renewed Fitzpatrick had

motion. 12(b)(6), under Fed.R.Civ.P. a claim which— dismiss, stayed but motion to pleadings outside the because matters pending a rul- discovery motions plaintiff’s court —was trans Evidently, parties both dismissal. on into a formed under the motion to dismiss still before considered Wright 56.3 Fed.R.Civ.P. C. & A. Milled court, objection was raised to for no & Procedure Federal Praсtice § procedure. formally did not renew his mo nearly January six months On 1976— 12(b)(6), to dismiss rule tion both *4 of the announcing its reconsideration after and the court it plaintiff treated as the the motion —the court dismissed dismissal it still though pending. were There was no rejected Fitzpatrick’s claim complaint. It fact, of disputed issue material and both that immunity, but found prosecutorial acquiesced clearly in court’s parties the de foreclosed a find- progeny and its legal to consider the issues in cision the ing liability ground- this case. It then in Sprague does not that contend this jurisdiction lack over dismissal on ed its Moreover, error. he decision waived the matter. object error when failed to to the to treat the motion as

court’s decision still pending. Fed.R.Civ.P. II. reconsidering this the motion to posture of dis procedural miss, that 28 the court considered matters outside highly clear

case is unusual. pleadings, thereby converting the 1343(3) upon the district dis conferred U.S.C. § grant summary judgment a subject matter of missal into jurisdiction over the court 12(b)(6). alleged a to rule Central Con deprivation pursuant action. Co., tracting Maryland Casualty law his 367 constitution Co. under color state (3d 1966). point 343 No object of section F.2d Cir. plain al —the Moreover, remanding simply be served rejected by once the court would to 1343(3). parties im to prosecutorial permit or court renew Fitzpatrick’s assertion of orders; Spra have clear that relabel the various motions or munity, it should accept relief we will the view of gue upon a claim which had stated was, effect, See, g., Pickering, that the dismissal in a granted. parties e. could be University, 520 for Rome supra; Roseman v. Indiana defendant.4 (3d 1975), Co., 424 International Terminal Operating 1364 Cir. ro v. pertinent part 12(b) given opportunity present in follows: reads as be 3. Rule reasonable to pertinеnt all material made to such a motion defense, fact, Every in law to claim for or a claim, Rule 56. any pleading, a coun- in whether relief terclaim, cross-claim, claim, third-party or have 4. Other observers commented follows responsive pleading in be asserted shall on this issue: required, except if one is thereto clearly presents . recоrd [I]f may option following at the of the defenses summary judgment issue as to whether (6) pleader be made motion: ... parties both should be entered and upon which to a claim relief failure state opportunity present a reasonable affida- If, granted . . assert- be . motion evidence, judi- for the sake of vits and other ing for the defense numbered dismiss ecоnomy appellate generally cial will pleading failure of the to state claim determination of the make an immediate is- granted, relief can be matters outside remanding sue than the cases to the rather pleading to and exclud- are disposition. court, district court shall the motion be treated ed Miller, Wright summary disposed A. judgment & Federal Practice & C. as one (1969). parties provided n.67 in Rule and all shall Procedure at 680 ‍​‌​​​‌​‌‌​​​‌​​​‌‌‌‌​​​​‌‌‌​‌​‌‌‌​‌​‌​‌​‌​‌​‌​‌‌‍asof promoting L.Ed.2d efficient S.Ct. its employees. Id. at 1731. Be- variety

cause of the infinite of situations in arise, however, which such criticism could III. bright-line refused to establish a the Court Fitzpatrick insists that the district court protected speech in the test em- improperly rejected prosecuto his claim of рloyee context. 88 S.Ct. 1731. immunity rial under section 1983. We note Instead, adopted balancing test, weigh- it immunity yet has not been extend speech interest in free aspects prosecutor’s ed to “those of the re against likely the harm to result to the sponsibility that cast him in the role of an provision of service. The state’s crucial investigative administrator or appears officer rather in this balance variant have been proximity criticizing than of advocate.” Imbler v. Pacht the hierarchical man, 409, 430-31, body employee criticized. id, (1976); noted that see at 431 n. 96 The 995. But maintains are in no statements directed to- prosecutorial immunity should be held any person appellant with whom wards to cloak administrative аctions such as the normally contact in the discharge involved hiring here. The daily of his course work as a teacher. firing through of the subordinates whom he maintaining no Thus either *5 acts, says Fitzpatrick, is the District Attor discipline by superiors immediate or har- ney’s discretionary ultimate act in his serv mony among coworkers is here. ice to the public; such decisions Apрellant’s employment relationships ought to repose within the safe harbor and, the Board with to a somewhat lesser immunity. section 1983 extent, with superintendent are hot working the kind of close relationships We need not thorny resolve issue in it persuasively for which be claimed Assuming, deciding, without personal loyalty and confidence are correctly the distriсt court held defendant necessary to their proper functioning. Fitzpatrick’s administrative action outside 569-70, Id. at 88 S.Ct. at 1735. The Court scope prosecutorial immunity, we also observed that “significantly different nevertheless affirm the considerations would be involved” in cases for defendant. We do so on the basis of where “the superior between Pickering and Roseman. and subordinate is of personal such a and Pickering, high school teacher wrote intimate nature that certain public forms of newspaper a letter to a local criticizing the superior criticism of the subordinate superintend- the school board and the seriously undermine the effective ent had handled recent bond issues. The working relatiоnship ness of the between hearing board held a and determined that them.” Id. at 570 88 S.Ct. at 1735. many of the Pickering’s statements in letter Several cases have dealt with such disrup were false. It found his action detrimental tive statements and found them outside operation of the public schools and See, protection. first amendment g., e. dismissed him. Illinois courts affirmed Holmes, (7th Cir.), Clark 474 F.2d 928 Pickering’s dismissal. 391 U.S. denied, cert. 411 U.S. (1973); L.Ed.2d 695 Duke v. North Texas reversed, Supreme The Court holding University, (5th Cir.), State F.2d 829 Pickering’s board’s violated right speech. Pickering of free As the also See Meehan v. it, problem court saw was to ‍​‌​​​‌​‌‌​​​‌​​​‌‌‌‌​​​​‌‌‌​‌​‌‌‌​‌​‌​‌​‌​‌​‌​‌‌‍strike a Macy, U.S.App.D.C. 392 F.2d public modified, balance between the interest of the U.S.App.D.C. 425 employee banc, as a citizen and that of the state U.S.Aрp.D.C. aff’d en ed at the Acting Chairman of her Depart- (remanding for reconsidera- F.2d 472 ment. Pickering, indicating light

tion in (footnote omitted). state of evidence at 1368-69 Id. present that on unprotected). speech judice case sub presents an even egregious example disruptive more im Pickering balanc- applied This The court below found it pact. “beyond Roseman, an associ- Roseman. in test Sprague’s question” that statements had University, had at Indiana professor ate precluded “totally working future rela her de- acting chairman of criticized tionship between defendant later, teaching staff. week One partment’s ..” The First Assistant District At her decided not renew university ego” of the District torney Attor —“altеr court’s We affirmed district contract. administrative and ney, policy- direct statements “were that Roseman’s holding making subordinate —declared in public Amendment, First protected by the not superior that his immediate had not told the might permissibly part form therefore irreparable truth. The breach of confi of., discharge. 520 F.2d at her the basis” dence between the two men evidenced first that Roseman’s state- We noted Spra immediate dismissal of to the level of not rise ments did gue Sprague’s failure to seek reinstate in present Pickering. importance as a ment form of relief in this action. Second, the crucial element of dis- Certainly expect we could not a district Pickering, ap- absent in ruptive impaсt, attorney run an efficient office if his peared in Roseman. impugn first assistant were free to his in in tegrity public. on su-

Pickering’s attacks were a remote board; interview, and school in con- perintendent is true that criticisms, contrast Roseman’s concerned trast, called into Roseman’s grave public import. matters of But this immediately in integrity balance does tilt the favor which, running department it charge where, protection first amendment assume, more than intimate is fair to *6 here, employment the effectiveness of the The district court found a school district. employee-speaker between in- attacks Faust’s “plaintiff’s that employer-target completely is so under faculty un- tegrity meeting in a would Indeed, рublic uproar engen mined. the effect doubtedly interfering by Sprague’s pronouncements pre dered is relationships plain- harmonious with with cisely thoroughly that so factor cur superiors and co-workers.” tiff’s tailed usefulness as In making at 1339. F.Supp. [1328] deputy. Kennedy, Arnett v. See 416 U.S. finding, the district court reflected a sim- 134, 161, S.Ct. 40 L.Ed.2d expressed Supreme ilar concern Meehan, citing approval supra, with Court, Pickering’s noted that state- (public superiors at 835 criticism were “in no directed towards ments discharge promote constitute cause for whom [Pickering] with any person efficiency service); Pickering, supra, be in contact in course of his normally at (suggesting Pickering, daily work as a teacher.” su- public grounds could criticism dischаrge). not hold 569-70, 1735. Roseman did that the pra 88 S.Ct. Because of at importance public of an state this, Pickering’s question case raised “no automatically first ments created amend maintaining discipline by either imme- Instead, protection. importance ment harmony among co- superiors diate be, mutandis, may mutatis one the fac 88 S.Ct. 1735. The workers.” weighed protecting tors to be in favor of obviously cannot be of Rose- said same right speak employee-citizen’s bn faculty meeting accusations direct- man’s general Pickering, matters of concern.5 only Pickering, Supreme tangentially “the Court held that related to fact of e., employment,” Pickering’s knowledge of the matter communications i. sincе since the key at however, Pickering, employment whether relationship has seriously undermined. Id. at 568— public If the arousal of

controversy disruption exacerbates the service, then it weighs against, not

for, protection first amendment in the Pick

ering balance. reasons, foregoing judgment

For the court will district be affirmed. Judge

Chief SEITZ concurs in the result particular

because of the facts involved. understanding

He does so on the effect,

majority holding, is not

disruptive tips factor the scales in all such

cases. EDMONDS, Appellant,

Thomas Earl

Major LEWIS, Superintendent D. C. Institution,

Caledonia and the State of Carolina, Appellees.

North

No. 75-2308.

United States Court Appeals,

Fourth Circuit.

Argued June

Decided Dec. Douglas Berry, Greensboro, N.C.,

M. appellant. League, N. Atty. Asst. ‍​‌​​​‌​‌‌​​​‌​​​‌‌‌‌​​​​‌‌‌​‌​‌‌‌​‌​‌​‌​‌​‌​‌​‌‌‍Gen. of Carolina, Raleigh, (Rufus

North N.C. L. Ed- and views about the use of school funds did knowledge with his and views about depend board, on his to the sсhool Attorney. trick’s as District public importance of the statements meant treated, pur- cannot claim to be employer punish the state could not issue, poses of that as a mere “member of the making them. 391 U.S. at 88 S.Ct. general public,” could with re- case, however, Spra- In this the fact of spect to school bonds. gue’s employment inextricably intertwined