Screws v. United States

they then We what dis conclude that was just been removed. had having pursuant de- they covered to law say arrested Frisch for downstairs liquors sup posited ought and the evidence pressed. not to be of it and concealed these gotten by in- imposed, papers with Some were floor-tax which a breaking open desk in the bar tent to defraud presence, tax, subject not have been in their records to the of committed crime Code, 3321(a), inspection. Any ought ficers’ Internal Revenue § 3321(a). liquors returned. But 26 U.S.C.A. Int.Rev.Code seized and § was, upstairs information obtained warrant was arrest without a The held, gotten by an unlawful search they say. lawful, The if made liquors properly and those were ordered to believe bar led them discoveries suppressed. returned and that evidence 1, inventory filed Nov. a false had been The and the is set aside cause Int.Rev.Code, and a tax evaded then under remanded with enter a judg- direction to 3173(b) (1) (2), Int.Rev. 26 U.S.C.A. § Code, ment more precisely in accordance with (1, 2); that was not 3173(b) § opinion. presence. in their an offense committed They warrant of should have sworn out a could, arrest; they easily for it was Orleans, place daytime was in New acces United States Commissioner and a sible, making no effort to and Frisch was for fur escape. they If desired to search evidence, pursuance the law in ther SCREWS UNITED STATES. et al. v. they the bar ex inspecting which pressly provides warrant that a search No. 10834. 3601, Internal obtained: Revenue Int.Rev.Code, §§ Appeals, Fifth Court Circuit. 3601, 3602, 26 U.S.C.A. §§ 14, Jan. 1944. liquor Frisch was As retail dealer 3602. concerning keep his stock records bound to Rehearing 18, Feb. Denied see, officers had a Code, 3252, 26 Internal Revenue U.S.C.A. § Int.Rev.Code, § to see and think had we liquors in the bar and the count theotaxed upper adjoining it. floor closet But public part of The had was not a bar. liquors it. discovered no access to up locked and dust covered. there were liquors stored in and near the Morrison, quarters of sleeping Frisch sleeping rented rooms were other upper floor persons. The must be other which, premises private though considered bar, roof with the inspecting no enter in had officers there, Hearing suspicious noise bar. they could maintain a watch while search obtaining a warrant. search story began upper when mount They justify ed stairs. cannot discovered, they afterwards what most doors, breaking down nor after- ly by arresting Frisch and wards Morrison. States, Agnello v. United 409; L.Ed. 51 A.L.R. Go- Imp. Co. v. United Bart 344, 374; Walker States, Cir., 125 F.2d 395. v. United F. Kemp Hager, and Clint W. both of J.

Atlanta, Ga., Short, and Robert B. of New- ton, Ga., appellant. for Hoyt Davis, T. Atty., U. S. and John Cowart, P. Atty., Asst. S.U. both Ma- Asst, con, Ga., Maynard Smith, Sp. G. Atty. Gen., appellee. SIBLEY, HOLMES, Before and WAL- LER, Judges. Circuit WALLER, Judge. Appellants indicted, tried, and con-

victed, alleged for an violation of Sec. being Criminal Sec. U.S.C.A., Title 18 and for a conspiracy to violate said Sec. 52 of Title 18. It was Screws, appellant while County, sheriff of Georgia, ap- Baker pellant Jones, acting policeman while aas Newton, County, in Baker Georgia, both appel- aided and abetted Kelley, did, lant under color of the law of Georgia, Hall, arrest or one Robert cause negro citizen of the United States and of Georgia, arrested, State of to be brought yard into the courthouse Baker County, where said Robert Hall was beaten blackjack over the head with defend- ants, from the death of the said Robert Hall resulted. The substantive of- fense, alleged in Count was that the pellants under color of the law deprived State of said Robert Hall privileges, immunities secured or Constitution the United among things right other to be secure in his to be immune illegal battery; right assault privilege deprived not to of life and with- law; out due privilege not to equal tried, law; to be upon upon charge which he was ar- law; rested, by the privilege subjected not to be to differ- punishments, by ent reason of race prescribed punish- than for the ment of other citizens. The third count in the charged indictment conspiracy commit charged the offense in the second count ment, Congress what has now come Appellants enacted challenged demurrer below, asserting 18, U.S.C.A., Sec. Title of the court doing “Whoever, of or follows: killing that in of Hall and the ordinance, regulation, indictment charged the they other acts willfully subjects, to Title or 52 of causes did Section not violate State, subjected, ritory, any Ter- any immuni- inhabitant of rights, privileges, because the any deprivation “fun- or District to the of indictment are enumerated in the ties rights, privileges, immunities secured do not or rights” damental natural or and laws or of the the Constitution origin have their Constitution the States, punish- States; these nat- United or to different that laws of the United ments, pains, of penalties, source or on account rights their and inalienable find ural States, alien, by rea- being such inhabitant or whose sovereignty in the of the race, pre- rights, of his are protect son or than duty these it is to secure and punishment citizens, shall Hall scribed of killing of de- the beating and that the $1,000, imprisoned fined not by the State be more than or prived him of afforded year, not more than or both.” one by rather the Constitution and than States; secondly, it was as- the of serted that United U.S.C.A., provides Sec. Title 18 14th Amendment to the the part substantial that if “two or more * ** against prohibition de- Constitution was conspire any sons to commit of- life, liberty, privation by the State of the against States, fense the United any person property without due or of parties act and one more of such to effect the do deprivation against process the of object conspiracy, of the each be equal protection of the by the the State of parties conspiracy the shall of to jurisdiction, any person within its law to $10,000, imprisoned fined not more than not more than two prohibitions the 14th and that years, or both.” applicable to the in- were not Amendment properly lower court overruled citizen; and, personal acts of a dividual or demurrer to the second and third counts thirdly, 52 could not be that Section upon the indictment which the defend- where a sheriff or oth- plied to situations ants tried convicted. acting contrary to and er officer was prohibition enjoyment life against positive of State liberty law. a fundamental or natural created right, and is not derived from nor U.S.C.A., Title confer Does Sec. by the Neverthe Federal Constitution.1 upon try the federal court to less, designed to the 14th Amendment was sheriff, (who policeman, and another safeguard protect the individual officers) for un- aided and abetted two deprivation process without due lawfully beating under ar- to death one rights by than to those the State rather of create new custody rest and in theory of such in the individual. Sec. consequent that such merely undertake to 52 of Title does under of State death and was a willful done law protect rights which are derived from the but it Federal Constitution undertakes to rights pro- secured or privileges, and immunities protect make secure by the Constitution tected to the deceased protected by the Federal Constitution United laws of the States? laws, that end makes criminal and to part of pertinent the 14th Amend- wrongful deprivation any rights provides: Constitution “No ment the Constitution secured or are or any law make or shall enforce Clearly the laws of the United States. privileges or abridge the immunities shall in one’s and to be right to be secure States; United nor shall of citizens illegal- battery, or arrest and immune any person life, deprive liberty, any State liberty right not of life or law; property, without due and the any person juris- its within nor enjoy equal protection equal of the laws.” diction protected” by rights “secured or provides 14th Amendment 5 of the this Constitution of the power Congress shall have “The that: demurrer was ground of the not tenable. enforce, pro- appropriate legislation, the article”, pursuant ground The second the de which, visions and murrer, implement to the effect that 14th the 14th Amend in order to Amend- 542, 553, Cruikshank, States v. 23 L.Ed. 588. depriva property prohibition against life valid ment was a under State law tion offense by the State of the constitutional constitutes no act, but it thereby, pro of a constitution- covered al pretense hibitions 14th Amendment are a mere or color of law thority applicable personal pretending one to individual acts to act under au- citizen, of the ly the State section in- has as its base fundamental that calls the operation. concept.2 However, correct In the instant case Sec. there evidence to the effect that war- Title and the indictment drawn under, prepared rant of the sheriff personal intended to cover arrest was spurious wrong afterthought. Be that and individual acts citizen fully may, depriving another citizen of constitu insisted that he authority rights.3 making tional no color the section would have of in arrest. The applicability Assuming a possessed that citizen who acts without the sheriff was of to a statute, ordinance, warrant, law, evi- regu although color of valid there was lation, State, contrary, or dence in the ing an the the beat- custom of the case to prisoner of authority necessarily the a name or the State. to death is not the of making The incident the only applicable act lawful can one who wrongful guise authority prisoner acts arrest. The under State the by an brings arresting acting war- illegal deprivation thus about officer under a the rant, valid, whether void an rights. is unlawful constitutional The statute was not designed citizen of to reach and cannot be stretched personal, to reach United States which 14th Amendment individual act of one protects, and which 52 a crimi- citizen Sec. makes toward another when same not offense, constitutionality nal law, done of which though under color of even State section is not raised. depriving pub actor were the holder of lic office. found, The has under the over- weight testimony, whelming present In the sheriff beating by said Hall his Robert death contended both before during the trial justification the defendants was without acting pursuant he was to a warrant necessary and not in self-defense and not issued commanding him to arrest take in the exercise of such force as was rea- custody into Robert alleged Hall sonably necessary to make a lawful arrest theft of a tire. A warrant can issue and repel or to an assault. only served authority, under of law. A warrant, void in the hands of the appellants The third contention of is that deputy, sheriff his authority, is color of in does not embrace the section and acts done in the execution unofficial, of such a personal, acts of individual warrant are done under color of law. The one who holds an office unless those acts deprivation of the constitutional perpetrated guise or au- one citizen another is not a thority violation of State law. be conceded 52 becomes a violation gets that if the sheriff an into altercation when the depriving citizen is acting strictly personal a matter that is and which color of as distinguished from has no connection with his officialfunctions within the who, law.4 A sheriff acting un or out duties and which arises of no claim ader valid warrant making necessary the exercise of effort or color of lawful au- and lawful arrest and who in thority, apply. self-defense statute would not Cer- slays arrest, seeks responsible has tainly not to be held section, violated the but if personal a sheriff and whólly were for the unofficial acts acting only pretext under a merely color happens happens of law of individual who to be to be and in so doing unlawfully Smith, caused the who death sheriff. If John another, such sheriff sheriff, would be amenable is the owner of a house which he question. section in Johnson, The Bill and he rents to and Bill “ 2 Classic, 299, United States v. 313 U.S. ‘Color law’ does mean actual 1031, 1368; ‘Color,’ modifier, par legal S.Ct. 85 L.Ed. State of law. Virginia Rives, 313, ‘appearance distinguished lance, v. 100 25 L.Ed. means Hodges 667; reality.’ 1, v. United 203 U.S. Color means ‘mere legal right’.” L.Ed. S.Ct. semblance of McCain v. Des 3 Chicago, City & Moines, Q. B. R. Co. v. of Chi 174 U.S. test cago, 644, 646, 43 L.Ed. 936. v. 979; Huntington York, of New C. C., 118 F. 683. officer, wilfully Hall of the failure his fight over get into a Johnson Johnson Amendment, Smith, in the under the “that is pay rent to say, of his to and caused loss the defendants arrested subjected to the fight Johnson such act would * * * federal then arrested said Hall life, call unlawfully wrongfully that and there did operation. It is essential into unlawful, assault, only be strike and beat said Hall about the deprivation not the act of pre- blackjack, head with human fists and a but that be committed injuries proximate causing which were the tense law. and immediate cause of death”. renders 14th Amendment unlawful, arrest only is not equal statutes unconstitutional beating. Do these facts process of the crime ? The the United States acts law, etc., punishable 52 makes but Sec. sought answer is in Section 20 affirmative pretense of law under color or done one applicable of the Criminal words deprivation of result in the being: “Whoever, under color of Constitution. Federal ordinance, regulation, directed verdict motion for willfully subjects any inhabitant upon substantially grounds based any State, Territory of deprivation or District to the demurrers, viz, as were the any rights, privileges and opinion that are court. We immunities secured or stitution and laws of the the Con- jurisdiction, that the had court below United supports the overwhelmingly ver- evidence * * * impris- fined shall be jury, dict of the ** * oned or both.” be affirmed. lower court should protected? Any isWho inhabitant of territory. Affirmed. any part of the United States (dissenting). SIBLEY, Judge punishable? Who is acts un- Whoever has, any der happened in this case law custom. The stat- what Horror at think, ute does not mention State or State with a considera- 1 tion interfered calm customs, officers, Certainly, applies equal- if hut involved. of the law credited, ly to federal or territorial prosecution is cus- for the evidence appellants ought penitentiary. per- toms indeed to all be in the peni- any supposed is, sons virtue of law ought to be in a or statute does not whether valid or invalid. tentiary of the United States? the Fourteenth mention Death resulted profess “ap- Amendment and not does club. The head with a prisoner on the propriate legislation” it. to enforce hand, shotgun at was prisoner’s loaded every person takes hold of attempted pistol. No one a one officerhad potential States and makes him a criminal appeared prisoner. he When to shoot to any if he acts under color of law or custom. was taken at a he be in bad condition depriva- Wilful What does it forbid? county to another by the sheriff into once any right protected by tion of was wilful hospital. think it a I do not the Constitution and laws of the involuntary murder, that it was rather but it, Wilful, intentional, I take means States. of an un- manslaughter in the commission misfortune. not accident or Does it charge The indictment does not lawful act. particular that a clause the Con- mean stitution killing, and no such issue intentional mind, with definite inten- jury. was submitted it? In this case to violate there no tion charge indictment ? Count What does suppose that Screws reason Jones count, being merely repeated key 2 is the thought of the Fourteenth Amend- once conspiracy. In it 3 as a in Count ment, anything knew much or or that immunities list of an elaborate not jury instructed to about it. secured and alleged to be any enquiry. The accused in- Constitution, Amendment Fourteenth Hall, tentionally beat allegations of law. It is al- these but are enough, if justified. told that acted defendants under color leged that the legislation a common form of it is of New- Now the law of any prevision say violation of Legislature that a ton, special act of the no but particular act shall a crime. The citi- town is mentioned. The a ordinance of eyes his Screws, everything and can being zen has before are these: allegations fact State may police readily know what do. Far Sheriff, Jones, being city attempt ment, more serious to make lawful, would it to whether his act was “every deprivation se- criminal A color of law. warden cen- act, say mail; prisoner’s cured” even one elaborate sors a does he Act, Interstate et postal Commerce U.S.C.A. under the laws? A law of § seq., Act, Georgia permits or the National Relations impound Labor a landowner to seq. 29 U.S.C.A. et If this trespassing paid. cattle till § had punishing confined itself to State offi- impounds If under color of this law one deprive helping cers for a State to cattle then kills and eats them unlaw- life, liberty son of process property fully, without due he is of criminal course under State law, contrary the Fourteenth has, but as he under color of Amendment, which is here as- property the function taken without due it, signed to it seems it would have imprisonment. me he also must suffer federal vague good been too make a criminal had, very In this and Screws Jones n judges days for not even before, few apparently without due portion just bench know the process, what that pistol. They might taken Hall’s means, ideas Amendment federally have been indicted for that. changed very greatly about it have Section 20 was first since When Hall shotgun was arrested his it does home, enacted. What taken from his in a search of gather every provision is to up of the Fed- apparently his warrant. This was without lawful Constitution, provision every eral of secure or federally indictable. Po- every federal statute which everywhere licemen arrest without warrant protect civil, personal, property sort unlawfully. They wilfully all guilty political right, and declare it to a depriving prisoner deprive anyone right. crime to of his Who due this and indictable under by can enumerate what secured statute, taken its at face value. Rights the Bill of of the Federal Constitu- present But it is said the ais clear case by prohibitions against tion ? State Or a serious one Constitution, original action in taken, wilfully life because taken. even if not Thirteenth, and other Amend- is to the right Who decide whether ments? Or such laws of one, depriva- is clear or how serious the Act, States as the Interstate Commerce National Labor Relations jury? tion must be? The Thus Law, Rail- construed, falls squarely the statute Act, way Employers’ Federal Liabil- Labor Grocery case, decision in the Cohen ity Act, Act, Risk War Insurance Harbor supra. Act, Acts, Fair Workers’ Seamen’s Labor reasonable construction of the Act, others? It fifty Standards seems which it me up- seems to be could legisla- to wholesale criminal me that such one, knowing held is that where a law or constitutionally possible, tion is because contrary regulation custom is to a is in it no ascertainable standard of secured the Federal Constitution or precisely guilt, and to be informed wilfully undertakes to the law or enforce things charged as crimes is regulation punished. he shall preserved. practically United States regulation There is here no law or or custom Co., Grocery v. Cohen L. S. prisoner, to beat a white or black. It is law- 516, 14 Ct. 65 L.Ed. A.L.R. one, if ful to subdue he resists or attacks the words, statutory taken in their full arresting officer. law is contrary That to startling consequenc- sweep, would involve federally any right secured. It is also a cus- prosecuting Judges es. Georgia tom you to strike one who calls federal, dangerous ground. tread on your face bitch”, to a “son of a as refusal to send counsel, An intentional for witness- Judge charged the District in this es, prompt grant furnish privilege resenting such words indictment, may trial, them or a full does not extend to an arresting officer. Many federal boards have criminals. made by allegation is not shown here There many “regulations”, some which no judicial evidence or notice regula- contrary doubt are of unless, tion or custom under color which Screws Those federal laws. of who act under they and claimed, struck Hall as Jones regulations prosecu- are liable him, subdue which would not Every tion. Sheriff any right. or United him they States have If alleged, prisoner, simply they unlawfully, who uses force on a Marshal struck him every prison disciplines, bonds, warden who are liable their official liable to have answer a federal indict- are liable in for assault and bat- prose- tery, liable to criminal and because cution under consequence, prosecution the fatal manslaughter or involuntary for 20, if think Section haps I do not murder. all, applied can be sustainable at

case. Rehearing. for Petition

On

PER CURIAM. rehearing in the above- petition for denied.

styled hereby cause is SIBLEY, re- Judge, favors a Circuit

hearing. con- WALLER, Judge (specially Circuit

curring). my It is that Section of Title view U.S.C.A., is anti-discrimination and shown it must under which right was of federal City, N. White, Jersey L. Elsie J. alienage, race color of on account Néwark, J., Ravin, N. (Morris M. deprivee, contrary was but the held Steisel, City, J., on the Jersey N. Louis Classic, 299, 61 v. brief), appellants. for I, holding Newark, Sorenson, N. Henry J. J. pres- unapprovingly, follow. In the must Speer, H. (Henry Fryling H. William state of the Su- ent construed brief), J., for Newark, N. on the both of Court, petition preme rehearing pellee. properly denied. The recent decision in McLAUGHLIN, Before Hughes, JONES v. Snowden court, KALODNER, Dis- Judges, not in conflict with the views ex- Judge. trict opinion pressed by court in former this in this case. PER CURIAM. appeal question The sole assignment trial raised in evi- refusing erred in to admit judgment entered dence a New Jer- sey Court District (Secondi Judicial County) a suit different of Essex prop- party the same defendant for erty growing out of et al. v. PUBLIC SERVICE CO- MILLER present plaintiff accident for which the ORDINATED TRANSPORT. suit in the brought court below No. 8405. injuries. earlier sonal in no sense res adjudicata of the defend- Appeals, Court of Third Circuit. alleged negligence so far it was ant’s material Argued Jan. 1944. complaint instant case. No Decided Jan. as to the is otherwise made either trial or defend- submission alleged negligence. ant’s judgment of District Court is affirmed.

Case Details

Case Name: Screws v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 14, 1944

Citation: 140 F.2d 662

Docket Number: 10834

Court Abbreviation: 5th Cir.