Allen v. McCurry – Oral Argument – October 08, 1980

Media for Allen v. McCurry

Audio Transcription for Opinion Announcement – December 09, 1980 in Allen v. McCurry

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Warren E. Burger:

We’ll hear arguments next in Allen v. McCurry.

Mr. Fitzgibbon, I think you may proceed whenever you are ready.

John J. Fitzgibbon:

Mr. Chief Justice, and may it please the Court:

This case is a multi-facet case which arose out of the 8th Circuit.

It concerns the proposition as to whether or not collateral estoppel applies when a prisoner seeks to invoke the jurisdiction of the Federal District Court under 42 United States Code Section 1983.

In this particular case the 8th Circuit held that because of the special role of the federal courts in protecting civil rights and because habeas corpus is now unavailable to the appellant in this case under the decision of Stone v. Powell, it is the duty of that court to consider fully, unencumbered by the doctrine of collateral estoppel, the appellant’s 1983 claims.

This goes back to a number of decisions of this Court, and I guess you would have the starting point would be the original Ku Klux Klan Act, or the Civil Rights Act, wherein the Congress gave the power to federal courts to determine constitutional rights and to give persons remedies for damages and a federal forum to air their constitutional claims, the reason being that there was great distrust that the state courts would not comply with federal constitutional law, and make a mockery of justice.

However, this particular Act has been somewhat modified.

I believe this Court has stated that the state courts are able to rule constitutional issues involving federal constitutional law, and that some trust has to be placed in state courts concerning this issue.

Going back to the Civil Rights Act, I believe that in this day and age things have drastically changed and that state courts are applying constitutional law, federal constitutional law, and are complying with all decisions of this particular Court, especially in the role of search and seizure.

William H. Rehnquist:

Mr. Fitzgibbon, can I ask you a question about the procedural posture of this case?

As I understand it the respondent in this case was convicted in the trial court, or his motion to suppress was denied, and he had an appeal pending to the Missouri state courts on that point at the time he brought his 1983 question.

John J. Fitzgibbon:

That is correct.

William H. Rehnquist:

And the Court of Appeals for the 8th Circuit didn’t… although it said you can’t use collateral estoppel once the state process is finished, it directed the Federal District Court to abstain while he, the defendant, perfected his appeal through the Missouri court system.

John J. Fitzgibbon:

Right.

And also the 8th Circuit has reference to the Missouri Court of Appeals decision in that case regarding the hearing that he had on his motion to suppress the evidence.

They were aware of that particular decision and it so states in their decision.

William J. Brennan, Jr.:

And did the case go to the Missouri Supreme Court, Mr. Fitzgibbon?

John J. Fitzgibbon:

No, it did not.

It is limited on this particular issue to the Missouri Court of Appeals so that there was no further–

William J. Brennan, Jr.:

Could he have gone to the Missouri Supreme Court?

John J. Fitzgibbon:

–Pardon me?

William J. Brennan, Jr.:

Could the defendant have taken his conviction to the Missouri Supreme Court?

John J. Fitzgibbon:

No, Your Honor, not under our law.

It would have to stop at the Missouri Court of Appeals, and it would not go to the Supreme Court.

William J. Brennan, Jr.:

Or could it have come here from the Missouri Court of Appeals?

John J. Fitzgibbon:

From the Missouri Court of Appeals?

It could have come here by way of certiorari.

And of course, under Stone v. Powell, it couldn’t very well come here under habeas corpus.

William J. Brennan, Jr.:

No, but cert might have been sought here from the Missouri Court of Appeals?

John J. Fitzgibbon:

It could have come very well by petition for certiorari to this particular Court.

Harry A. Blackmun:

Bring me up to date.

What is the status of the criminal case on the state side?

Has it been affirmed?

John J. Fitzgibbon:

It was affirmed by the Missouri Court of Appeals.

Harry A. Blackmun:

Was cert applied for?

John J. Fitzgibbon:

Pardon me?

Harry A. Blackmun:

Was cert applied for?

John J. Fitzgibbon:

I am not familiar with that particular point because I am not the prosecutor in the case, I represent the police officers.

Whether or not cert was applied for or not I really don’t know, in this particular case.

Warren E. Burger:

When you speak of cert are you speaking of cert to the highest court in Missouri?

John J. Fitzgibbon:

No, sir.

Certiorari to the Supreme Court of the United States.

I am not familiar as to whether or not that’s–

Harry A. Blackmun:

Well, certiorari from the Missouri Court of Appeals which for this case is the highest court in Missouri.

There is no right to go to the Supreme Court of Missouri on the criminal case, as I understand that.

Am I correct?

John J. Fitzgibbon:

–No, not under our state law.

No.

The Missouri Court of Appeals determines those issues and that is final.

It appears that in the–

William J. Brennan, Jr.:

I’m sorry, Mr. Fitzgibbon, did the Missouri Court of Appeals decide the Fourth Amendment claim?

John J. Fitzgibbon:

–Yes, Your Honor, they did.

They decided that the search and seizure was lawful and that he was convicted upon constitutional standards of search and seizure and therefore his conviction should be affirmed.

William J. Brennan, Jr.:

And that turned on federal law?

John J. Fitzgibbon:

On federal law, and they so cited the federal rules concerning that in federal cases.

Byron R. White:

Couldn’t that issue have been taken to the Missouri Supreme Court?

John J. Fitzgibbon:

No, Your Honor.

Byron R. White:

I see.

John J. Fitzgibbon:

I guess you’d have to go back to the Civil Rights Act to find out what the effect was and whether or not collateral estoppel should apply.

John J. Fitzgibbon:

The federal rules, federal cases, cases of this Court, I guess seem to indicate that there are some common law defenses available in a 1983 action.

And some of those defenses would be, for instance, judicial immunity under Stump v. Sparkman and recognized defenses to 1983 actions.

And this is imbedded into the common law.

And the question is whether or not should the common law defenses be now abandoned because of 42 U.S. Code Section 1983?

There are recognized defenses to that.

For instance, the statute of limitations.

If you don’t file your claim within a certain period of time, you don’t have any claim any more.

Of course, that being statutory law it is imbedded that stale claims should not be heard by courts.

In this particular instance, I think there is no doubt that the common law always did recognize that collateral estoppel will apply, that if you have had a fair and full hearing on an issue, in my words, you only get one bite at the apple, the idea being to give some finality to litigation.

It has to stop somewhere.

Now, the issue in this particular case is if the prisoner in this particular case was given a full and fair hearing in the state court’s suppression of the evidence case.

Does he now have a right, notwithstanding the fact that it has been shown by the Missouri Court of Appeals that the search was legal and constitutional, can he now go to the Federal District Court on a petition for damages and relitigate that same issue which has been litigated before in a state criminal proceeding?

Harry A. Blackmun:

Counsel, certainly that issue is here, but straighten me out on one other little detail.

There is an assault claim here also, isn’t there?

John J. Fitzgibbon:

Right.

Harry A. Blackmun:

And there is a statement in some of the briefs on the other side that Judge Meredith, if it was Judge Meredith, bypassed or failed to pass upon that issue.

What’s your comment on that one?

John J. Fitzgibbon:

When we started off this case I asked the court for partial summary judgment on the issue that we’re here on today, and the court, I guess inadvertently, granted me full summary judgment, which I really didn’t ask for.

I was willing to go to trial with the assault.

Harry A. Blackmun:

So that may have to go back?

John J. Fitzgibbon:

That… yes; yes.

That probably will be tried.

Byron R. White:

That was remanded by the Court of Appeals?

John J. Fitzgibbon:

That was remanded and that issue should be tried.

I didn’t address that issue; I wanted to get this issue into the eye of the Court so they could rule on this particular thing in our Circuit.

Now, some of the cases have made distinctions on whether or not you voluntarily go into a court, submit to their jurisdiction, get a result which you don’t like, and then try to relitigate that same issue.

I don’t think the test is whether you voluntarily go into court.

In Montana v. United States the United States Government voluntarily went into court, into a state court involving a constitutional issue and asked the court to rule on those issues, and the court did.

Then the United States tried to get into the federal system, to have another bite at that particular apple when the court in the state court had ruled the federal constitutional issues in that particular case.

Now, the cases that were cited by the 8th Circuit, or where they say that… well, these cases were before Stone v. Powell, and therefore, since Stone v. Powell has taken away habeas corpus on Fourth Amendment violations, virtually, that therefore we have to have a federal forum and some of these cases go off on the theory, well, since it’s a criminal case, the prisoner didn’t ask to be in the courtroom and the prisoner didn’t really ask to have these particular issues decided but he was forced to be there and he was forced to bring up these issues… and they take off on a tack saying, well, if he wants to have a 1983 action for damages, then he can’t litigate that in the state court, he’s going to get convicted because he’s not going to bring that up.

John J. Fitzgibbon:

I think that’s absolutely false.

If a person is in court and is going, may have to do some time, he is going to bring up that particular issue of suppression of the evidence and litigate that as fully as possible.

I think the last thought in somebody’s mind who is in that courtroom is, oh boy, my damage claim is going to come up now, they are vitally interested in having an acquittal in that particular case.

Warren E. Burger:

Is his damage claim for assault against the officers that he shot or some other officers?

John J. Fitzgibbon:

In his motion… he had a cross motion for summary judgment and in that cross motion for summary judgment he identified another police office who he alleges assaulted him while he was lying on the ground with his hands behind his back.

The two officers that he shot, of course, didn’t have anything to do with the particular assault because they were immediately, got medical aid and they were taken off to the hospital.

So it would be a third officer who he identified in his cross petition for summary judgment.

I don’t think that the test is whether an issue is decided, whether you’re there voluntarily or involuntarily.

I think that the test that should be applied in state court proceedings is to whether or not he had a full and fair opportunity to litigate this particular issue, to present witnesses on behalf of himself on the suppression issue, and that that should be binding, and if the state court finds that this is constitutional.

Byron R. White:

What would you say if the state court finding had been the other way and that the evidence was excluded?

John J. Fitzgibbon:

If the evidence was excluded–

Byron R. White:

And then this suit were brought against these particular police officers and the plaintiff claimed that the issue had been concluded in the criminal trial and he needn’t present any evidence?

John J. Fitzgibbon:

–There is one case which holds, I believe, that the transcript of the testimony in that case could be by stipulation introduced to reach a result.

But the–

Byron R. White:

You say that the police officers can use this judgment in the criminal case defensively?

John J. Fitzgibbon:

–Right.

Byron R. White:

But you wouldn’t say that a plaintiff could use a contrary judgment offensively?

John J. Fitzgibbon:

He could go back, if the issue is decided in his favor, certainly, under 1983.

John Paul Stevens:

We have different parties then.

John J. Fitzgibbon:

It could go in.

I don’t think the courts have distinguished in collateral estoppel or what they call issue preclusion; or… you have three things–

John Paul Stevens:

When the police officers had never had an opportunity to litigate and argue in good faith and so forth?

That could be precluded.

John J. Fitzgibbon:

–As I understand the question, if it were determined in his favor that the search was unlawful–

John Paul Stevens:

Right.

John J. Fitzgibbon:

–then he could fully litigate his 1983 claims in the Federal District Court.

John Paul Stevens:

Litigate, but could he get summary judgment?

I think that was what Justice White was asking.

John J. Fitzgibbon:

No, no.

You couldn’t get summary judgment because then it depends on whether or not there was good faith and probable cause to recognize defenses to actions for illegal search and seizure.

Byron R. White:

Well, let’s assume that in the criminal trial it was predetermined there was not probable cause.

Would that issue be open in a 1983 suit?

John J. Fitzgibbon:

It would be open in a 1983 suit?

Byron R. White:

Yes.

John J. Fitzgibbon:

Or he could proceed to trial, in a jury trial against the police officers.

It’s not preclusive upon the police officers.

William H. Rehnquist:

But typically, in your criminal trial, a motion to suppress may be granted notwithstanding the good faith immunity of the officers in a 1983 action, and if there were then, the motion to suppress were granted, wouldn’t that be conclusive as to the violation of the constitutional rights in a 1983 action, so that the only matter open would be the good faith of the officers?

John J. Fitzgibbon:

I think at that time the good faith of the… many times the officers may violate the Constitution inadvertently through lack of knowledge on their part of what the law is, the law is such a morass of rules for the police officer.

I don’t think they intentionally try to violate anybody’s rights, they violate by inadvertence.

Byron R. White:

All you have to do today is to win on defensive collateral estoppel.

You don’t need to solve the problem of offensive.

I guess you’re just saying that once there’s been a determination that there was no constitutional violation that the defendant shouldn’t be able to–

John J. Fitzgibbon:

Have another bite at the apple, Your Honor.

John Paul Stevens:

–Well, actually, isn’t that issue here because isn’t it true that the Missouri court did suppress evidence found in the drawer and in a tire?

John J. Fitzgibbon:

That’s correct, Your Honor.

John Paul Stevens:

And suppose they have therefore decided as a matter of collateral estoppel that to that extent there was a violation of Fourth Amendment rights?

John J. Fitzgibbon:

No, Your Honor, because the whole posture of this particular case was based on a conspiracy of the two officers to conduct an illegal search, the two officers that were shot by this prisoner.

John Paul Stevens:

And we have a state court adjudication that there was some violation of the Fourth Amendment rights in this–

John J. Fitzgibbon:

Not by them.

Byron R. White:

–Not by them?

John J. Fitzgibbon:

No.

The whole tenor of the thing is that these two police officers who came up to the door to buy narcotics conspired to illegally have a search and seizure of this particular property.

John Paul Stevens:

The officer who opened the drawer and looked in the tires is not a defendant?

John J. Fitzgibbon:

Is not a defendant.

That’s Officer Brand.

He is a different… he was called the seizing officer in the case.

But that is not the particular issue in this case.

The posture is that he started, he alleges that our two police officers conspired to illegally search his home.

John Paul Stevens:

I know it’s really not relevant but I have some problems with your damage theory that you’re going to, that they’re going to wrestle with if they win; but–

John J. Fitzgibbon:

If you’re talking about the stuff which was suppressed, it’s narcotics.

John J. Fitzgibbon:

What are his–

John Paul Stevens:

–I’m trying to understand if it was not suppressed, if they… I would hate to be the trial judge trying to decide how to apportion, how to award damages if you ultimately lose.

John J. Fitzgibbon:

–Well, that’s another problem that we have.

William J. Brennan, Jr.:

Mr. Fitzgibbon, no reference is made, is there, in the appellate court’s decision to Mincey v. Arizona?

John J. Fitzgibbon:

In the appellate, in the 8th Circuit, of Mincey v. Arizona?

No.

The 8th Circuit made no mention of that.

William J. Brennan, Jr.:

I just wonder on the issue of collateral estoppel, because that’s intervening law; it’s relevant here.

What then was the posture of your collateral estoppel?

John J. Fitzgibbon:

Are you saying that because… well, the Missouri Court of Appeals went into this particular issue and said that–

William J. Brennan, Jr.:

Doesn’t Mincey v. Arizona have some bearing on the resolution of that?

John J. Fitzgibbon:

–The Missouri Court of Appeals ruled on that particular issue–

William J. Brennan, Jr.:

Under Mincey?

John J. Fitzgibbon:

–And said… yes, Your Honor.

William J. Brennan, Jr.:

Oh, did it?

Warren E. Burger:

Which court of appeals are you referring to now?

John J. Fitzgibbon:

I’m referring to the Missouri Court of Appeals, not to the 8th Circuit.

The 8th Circuit just didn’t even get into the issue as to whether or not these facts show that there was an illegal search and seizure.

William J. Brennan, Jr.:

Do we have that opinion of the… I was under the impression that there was no reference in the Missouri Court of Appeals opinion to the intervening decisions.

John J. Fitzgibbon:

I believe it might be in the petition for certiorari.

It wouldn’t be in the brief, it would be in the petition for cert.–

Warren E. Burger:

Did this gentleman demand the return of the narcotics which he said were unlawfully seized?

John J. Fitzgibbon:

–I think he was only interested in the evidence that was seized and used against him in the particular proceeding, the criminal proceeding.

Warren E. Burger:

Ordinarily in Missouri, if the court holds that the contraband was unlawfully seized, do they give it back to him or is it–

John J. Fitzgibbon:

You can’t give marijuana back to somebody.

It’s contraband; it has to be destroyed.

Warren E. Burger:

–That’s what I was thinking.

John J. Fitzgibbon:

If you want to get into the issue of what was the street value of the heroin, and that’s the question of damages, I don’t see how we’re going to reach that.

Warren E. Burger:

It might not impress a jury very much as as an amount of damages.

John J. Fitzgibbon:

I don’t think so.

William J. Brennan, Jr.:

Mr. Fitzgibbon, is this the Missouri Court of Appeals opinion at Appendix C of the petition?

John J. Fitzgibbon:

Yes, Your Honor.

William J. Brennan, Jr.:

I just looked at it and I don’t see any reference to Mincey.

John J. Fitzgibbon:

It’s on page… Appendix 16.

It’s the first page.

William J. Brennan, Jr.:

Oh, I see.

I beg your pardon.

I see it cited.

John J. Fitzgibbon:

There was a reference made to it.

William J. Brennan, Jr.:

Thank you.

John J. Fitzgibbon:

I have come to a further conclusion on this case concerning the exclusionary rule, and in Stone v. Powell this Court went into the exclusionary rule and the results concerning this, that there is probably some displeasure with the exclusionary rule because it, I guess it shunts away whether or not a person is guilty or innocent and goes into the evidence, whether or not this evidence was seized legally or illegally.

It seems that if the exclusionary rule were abolished I myself would be willing to defend each and every police officer on a damage claim.

It appears that the exclusionary rule doesn’t really accomplish that much.

The deterrent effect of that is placed upon society when I think the deterrent effect should really be placed upon a police officer, the police officer who does… say, intentionally… violate somebody’s rights by an illegal search and seizure.

It seems to me that the onus of that should be placed upon the police officer in an action for damages and that the exclusionary rule should be very much curtailed and that evidence which is found in the possession… I believe, by this Court, as it has already indicated… possession of burglar tools, possession of heroin, some great evidence in a trial that this person is particularly versed and skillful–

Byron R. White:

Mr. Fitzgibbon, what is… do you think though that what you’re urging here is just some federal court policy about collateral estoppel or is it a statutory construction problem under 1983 or what?

John J. Fitzgibbon:

–I don’t think it’s a… under 1983 I don’t believe that there is any history, that the framers of that particular law and the congressional reports on this show any indication that they wish to abolish collateral estoppel.

Byron R. White:

Well, historically, hasn’t collateral estoppel required some mutuality or not?

John J. Fitzgibbon:

I believe the courts have gone further, and mutuality… you mean the mutuality of the same parties and the same issues?

William J. Brennan, Jr.:

Yes.

John J. Fitzgibbon:

No, that would be res judicata.

But they talk of collateral estoppel where the issue is put into focus and there’s a full trial, full, fair hearing on that, that that should be collateral estoppel on this particular case.

Byron R. White:

Let me ask you, do you know what the result would be in the Missouri courts if there was a suit under state law against these officers for illegal search and seizure?

John J. Fitzgibbon:

They could go either way in our state courts.

Byron R. White:

Well, would the state courts say that the legality of the search had already been determined in the criminal trial and so dismiss the case on collateral estoppel grounds or not?

John J. Fitzgibbon:

If a full and fair hearing were–

Byron R. White:

Is that the Missouri rule?

John J. Fitzgibbon:

–Yes.

I think counsel has given me the case of LaRose v. Casey and the answer is, yes.

Byron R. White:

So you think that if a 1983 suit were brought in the state courts, the Missouri courts would dismiss the case on collateral estoppel grounds?

John J. Fitzgibbon:

Yes, sir.

Warren E. Burger:

If you had no assault element.

John J. Fitzgibbon:

Right.

I’m just talking about the search and seizure matter.

Byron R. White:

Well, your colleague on the other side doesn’t agree with that, does he, or not?

John J. Fitzgibbon:

I don’t think he does.

Byron R. White:

Do you think it makes any difference what Missouri law is in this case, or is it just a question of federal law?

John J. Fitzgibbon:

It’s a question of collateral estoppel under the common law.

Well, should we look to see what the result would be in Missouri or would it be just a uniform rule countrywide, a matter of federal law?

John J. Fitzgibbon:

A matter of federal law involving collateral estoppel as to whether or not it applies in 1983 actions.

William H. Rehnquist:

Mr. Fitzgibbon, I notice that neither the Court of Appeals of the 8th Circuit nor you nor your opponents mention the decision of this Court in Stefanelli v. Minard at 342 US which strikes me as being very much on point with your case, except there there the injunction was sought under 1983 before the evidence was introduced and it was an effort to enjoin the use by the prosecution of the evidence in the criminal case.

John J. Fitzgibbon:

I’m not familiar with that case, Your Honor.

I guess under the doctrine of abstention they would allow, should allow the state courts to continue their criminal prosecution and the criminal processes against–

Warren E. Burger:

They surely have them in adequate remedy by way of a motion to suppress, have they not?

John J. Fitzgibbon:

–There’s an adequate remedy in the state court to do so, yes.

John Paul Stevens:

Mr. Fitzgibbon, assuming that the defendant suppressed the evidence in a state court proceeding and then he was indicted on a similar charge brought in the federal court, would he be able to plead in the federal court collateral estoppel and prevent the federal prosecutor from using the evidence?

John J. Fitzgibbon:

If there were a full and fair hearing below.

John Paul Stevens:

Yes; assume a full and fair hearing before the state tribunal and the state court suppressed it.

I take it you would say that would be binding in a subsequent related federal prosecution raising somewhat similar issues in which the same evidence was required–

Potter Stewart:

–Or involving the same search.

John Paul Stevens:

In which your question involved the same search; right.

John J. Fitzgibbon:

I think that the state decision on constitutional law would be binding.

I think the states do have the power.

John Paul Stevens:

Then we’re really not talking about the construction of 1983, because if you take the position that it would apply in a federal criminal prosecution, it’s a somewhat broader concept.

John J. Fitzgibbon:

Yes, Your Honor.

John Paul Stevens:

I’m not saying it’s wrong, but it’s not just construction of 1983, but it’s some doctrine that would apply in other areas too.

John J. Fitzgibbon:

The doctrine, the common law doctrine of collateral estoppel.

Potter Stewart:

Well, your point is that 1983 actions should not be exceptions from the generally applicable doctrine.

Is that right?

John J. Fitzgibbon:

That’s correct.

John J. Fitzgibbon:

Your Honor, that’s correct.

Potter Stewart:

Even when the 1983 action is based upon a Fourth Amendment violation, than even in the presence of Stone v. Powell.

John J. Fitzgibbon:

That’s right, Your Honor.

Potter Stewart:

Which is really what the 8th Circuit limited this exception to, as I understand it.

Well, on that formulation, then, it’s both.

It’s also a 1983 statutory construction problem to the extent that you construe 1983 as not intending an exception.

Yes.

John J. Fitzgibbon:

As I say, in conclusion, I would be willing to defend any police officer concerning illegal search and seizure and give them, if the Court needs some remedy for these persons who claim that their Fourth Amendment constitutional rights were violated and action for damages for this rather than excluding the evidence of any particular criminal trial.

Potter Stewart:

Well, that’s not really before us, is it?

John J. Fitzgibbon:

No, Your Honor, but following the whole theory of this, since habeas corpus was taken away in Stone v. Powell, the 8th Circuit has tried to give some kind of a remedy–

Potter Stewart:

An alternative.

John J. Fitzgibbon:

–some kind of an alternative remedy so that a federal court will look at this particular problem.

Harry A. Blackmun:

Did you move for rehearing en banc in the 8th Circuit?

John J. Fitzgibbon:

In the 8th Circuit?

No.

We asked for no rehearing.

We directly petitioned this Court for certiorari.

Warren E. Burger:

Mr. Shank.

Jeffrey J. Shank:

Mr. Chief Justice, and may it please the Court:

I think it particularly appropriate at this time, possibly, to review briefly the factual setting for clarification purposes.

Respondent filed his civil rights action alleging three general areas, one, the assault matter, which has been discussed with the Court; secondly, he raised a search question in two areas, one, a conspiracy situation and secondly alleging individual defendants.

The petitioner filed his motion to dismiss and motion for partial summary judgment.

He alleged in the motion to dismiss as to the assault, failure to state a cause of action, and as to the remainder in that motion to dismiss, res judicata.

As to his motion for partial summary judgment, he raised the issue of res judicata, solely.

The District Court granted petitioner’s motion for summary judgment in toto, did not consider the motion to dismiss.

The District Court in relying–

Potter Stewart:

The District Court in other words granted more than the defendant had asked.

Jeffrey J. Shank:

–That’s correct, sir.

And neither did he… it appeared the Court might have been ruling on the motion to dismiss and used the terminology under the summary judgment.

That’s unclear.

Jeffrey J. Shank:

The District Court said that the only issue that it had was whether or not the entrance into the respondent’s home was lawful and that this was litigated in state court.

The state court in the criminal proceedings at the trial level held, one, that a portion of the evidence should be suppressed, and a portion of it was not.

Warren E. Burger:

That was the contraband drugs, is that correct, that were excluded?

Jeffrey J. Shank:

Anything that was found in some drawers, in some tires, evidence that was found in plain view.

Warren E. Burger:

Were the drugs concealed in spare tires in the car?

Jeffrey J. Shank:

That’s my understanding.

There were some drugs found outside as well as, in a plain view situation as well as otherwise.

William J. Brennan, Jr.:

Now, as your colleague told us, there’s a difference, is there, in the officers involved in the search of the tires and the drawers, the evidence that was suppressed?

A different officer than any of these defendants?

Jeffrey J. Shank:

There was one other officer that was–

William J. Brennan, Jr.:

Were any of these defendants involved in those searches?

Jeffrey J. Shank:

–They would have been involved.

As to the conspiracy claimed it’s quite possible that the named officers Jacobsmeyer and Allen would have been involved in the conspiracy to violate the–

William J. Brennan, Jr.:

Dealing with the suppressed items?

Jeffrey J. Shank:

–Correct, sir.

Also, as to the… we also pled, or the respondent who was pro se pled that there were unknown defendants.

We subsequently learned the names of those particular defendants, and the 8th Circuit gave us leave to amend the assault claim and we would also think it would be appropriate to amend as to the individual defendants who would be involved in the violation of the constitutional rights.

Warren E. Burger:

Is the alleged conspiracy of the officers a conspiracy by them to find the drugs or to find… or was it–

Jeffrey J. Shank:

To conduct… to conduct the unlawful search.

Yes, sir.

The Missouri Court of Appeals upheld, as we’ve discussed, the findings of the state court.

Warren E. Burger:

–Why was that conviction, why was not cert, sought here?

Jeffrey J. Shank:

To this Court, Your Honor?

Warren E. Burger:

Yes.

Jeffrey J. Shank:

As a practicality of the situation, I believe respondent had retained counsel and had no access to anyone to file the writ other than possibly pro se.

I think that’s a practical reason for it.

Warren E. Burger:

When did this happen?

When did the Court of Appeals decision come down?

Approximately?

August 14, 1979.

Jeffrey J. Shank:

In ’79, in the Missouri Court of Appeals.

William J. Brennan, Jr.:

And by that time this action was pending in the–

Jeffrey J. Shank:

Yes, sir, it was.

Yes, sir.

The District Court–

Warren E. Burger:

–Well, are you… was this just, was this an inadvertent oversight, are you suggesting, that no review of the Missouri Court of Appeals decision was sought?

Or how are we to take your answer?

Jeffrey J. Shank:

–I don’t think the respondent had the knowledge or the ability at that time to proceed with the writ of certiorari before this Court.

I can’t tell the Court that it was an intelligent or a knowing decision not to seek a writ of certiorari before this Court.

It could have been; we don’t know.

If the Court would be asking, would that be providing a remedy, as opposed to the federal court, to proceed in a civil rights action to review the matter, we would suggest that the congressional and legislative history of 1983, the fact that the District Court would be able to give a more inclusive factfinding of the circumstances, the fact that the respondent in the state case… defendant there… was really compelled to raise those issues there–

William J. Brennan, Jr.:

Well, you recall, it used to be that… until we overruled it… that under Darr and Burford you couldn’t go into the federal habeas unless you first sought cert in this Court.

But I guess it’s never been the rule that you could not come, start a 1983 action without first exhausting by application for cert with this Court.

Jeffrey J. Shank:

–To my knowledge there is no exhaustion requirement for 1983 action.

Warren E. Burger:

When was the damage action against the police officers commenced, approximately again?

Before or after the Court of Appeals decision?

Jeffrey J. Shank:

Before it.

Warren E. Burger:

Well, then, he was aware at the time the Court of Appeals decision came down that he was, had a suit pending for damages against the officers involving the very elements concerned in the Court of Appeals.

Isn’t that so?

Jeffrey J. Shank:

He would have been aware of that; yes, sir.

Warren E. Burger:

Well, would you think his counsel was aware of it, whoever was his counsel at that time?

Jeffrey J. Shank:

If the Court is asking me if he was aware if counsel was aware that a civil rights action had been filed, I would tend to believe he probably was not, because the respondent filed the pro se motion and certainly would have sought assistance of counsel, I’m sure, at that time.

Harry A. Blackmun:

Mr. Shank, your office did not represent him in the state court proceedings?

Jeffrey J. Shank:

No, sir, we were appointed by the 8th Circuit Court of Appeals to represent him on the appeal from the Federal District Court’s decision.

Thurgood Marshall:

How can you assume that counsel, that the client wouldn’t tell the counsel he had a case pending?

How can you assume that he would not do that?

Jeffrey J. Shank:

Well, my sole–

Thurgood Marshall:

I know that they don’t want to tell the truth but I mean–

Jeffrey J. Shank:

–No, I would… my basis on that is from the tenor of the petition filed, or the complaint filed in the Federal District Court.

Certainly if counsel was involved, the petition, the complaint as filed would have been in a lot better form.

Thurgood Marshall:

–Don’t you think that counsel was obliged to tell the federal court that we have another case pending in the state court?

Don’t you think that was a duty upon the counsel?

Jeffrey J. Shank:

I believe in the Court of Appeals level the Court of Appeals was aware of it at that time.

Thurgood Marshall:

Well, they stayed that in that court.

Jeffrey J. Shank:

Yes.

Thurgood Marshall:

My question is, isn’t that a duty of counsel to tell the court that some other court is hearing this same matter?

Jeffrey J. Shank:

The Federal District Court?

Thurgood Marshall:

Any court.

Jeffrey J. Shank:

Any court?

Thurgood Marshall:

Any court.

Don’t you think that’s a duty to tell the court that?

Jeffrey J. Shank:

Under our interpretation of 1983, it would not be because we would–

Thurgood Marshall:

I know… but I’m talking about the relationship between client and the court.

Jeffrey J. Shank:

–If the first case pending would be determinative of the second case, then I think there would be a duty.

Except that if it would not be, I don’t feel that there would be a duty to inform the second court.

Thurgood Marshall:

And you’d lead the court to a position where it would have two courses with contrary rulings.

Jeffrey J. Shank:

Well, it’s quite possible–

Thurgood Marshall:

And you’d be responsible for it.

Jeffrey J. Shank:

–Well, it’s quite possible that the federal court could then, could abstain while the state court was handling its receivings.

Thurgood Marshall:

The court couldn’t abstain if they didn’t know about it.

Jeffrey J. Shank:

I understand that.

Thurgood Marshall:

And whose duty was it to notify them?

Jeffrey J. Shank:

I understand what the Court is saying.

Harry A. Blackmun:

But you were not counsel at the trial level, as I understand it?

Thurgood Marshall:

No, he wasn’t.

Jeffrey J. Shank:

No, sir, nor at the–

William J. Brennan, Jr.:

You were neither in the state court nor… was he represented at all in the state court?

Thurgood Marshall:

I’m not saying it about you because I knew you weren’t there.

Jeffrey J. Shank:

–In the state trial court he was represented by counsel.

William J. Brennan, Jr.:

But in the United States District Court on the 1983 he was not?

Jeffrey J. Shank:

No, sir, it was filed pro se.

William J. Brennan, Jr.:

So if anyone was to tell the federal district judge, it would have to be the respondent himself.

There was no lawyer then.

Jeffrey J. Shank:

Part of the… in that case in the Federal District Court, the defendant could raise the issue similar, as he did here, and it would come before the court.

William H. Rehnquist:

Mr. Shank, returning for a moment to the failure of your client to seek certiorari here from the Court of Appeals of Missouri judgment affirming the conviction, isn’t one of the underpinnings of our opinion, Stone v. Powell, the right that… the fact that this Court is open to remedy erroneous rulings on search and seizure?

And if you allow a 1983 action in every case where Stone v. Powell bars habeas, you’re pretty well overruling Stone v. Powell.

Jeffrey J. Shank:

Well, sir, in the Stone v. Powell matter I believe the Court indicated that if a state court provided a full and fair hearing or opportunity to raise the Fourth Amendment issues, the habeas corpus would not be an available remedy to a respondent or defendant.

Our feeling is that it’s… the federal court in reviewing that would only be reviewing a due process situation.

It would not be reviewing the substantive application of the constitutional rights, whether or not the substantive rights had been violated.

It would be looking as to whether or not there was a hearing, whether or not evidence was presented, not necessarily how the law was applied.

It’s quite possible the law could have been applied inappropriately.

William H. Rehnquist:

But, in each case, wouldn’t the guts of the constitutional claim or the federal claim be the unlawful search and seizure?

Jeffrey J. Shank:

The underlying claim would be but what the court would be reviewing would not be the same.

William H. Rehnquist:

Why not?

Jeffrey J. Shank:

Well, I feel that the reviewing court, if we use the full and fair opportunity kind of test, would only be reviewing whether or not there was a hearing on the issue, whether or not their evidence was presented, and that type of situation.

But I don’t believe the reviewing court’s going to look at how the law was applied to the facts.

It’s quite possible that the state court could apply law that’s contradictory to the present status of the federal–

William H. Rehnquist:

Well, then, doesn’t Stone v. Powell say, you petition for certiorari here rather, because relief is not available on habeas corpus.

Jeffrey J. Shank:

–So it would be as a matter… you could proceed under the habeas corpus.

Of course, if there was a denial of a full and fair hearing, if there was, if the court found that there was that denial, then of course habeas would be available.

And likewise, if we get into the realm of the collateral estoppel issue, the ruling on the habeas might well void the conviction itself, so collateral estoppel would never come into play.

William H. Rehnquist:

But do you make any claim that there was not a full and fair hearing in the Missouri courts on the search and seizure issue?

Jeffrey J. Shank:

No, we did not raise that claim before this Court.

Potter Stewart:

Well, indeed, you have to assume that there was a full and fair hearing, otherwise federal habeas corpus would be available and the reasoning of the Court of Appeals for the 8th Circuit would be inapplicable.

Jeffrey J. Shank:

Correct.

We would have proceeded through habeas; yes, sir.

Harry A. Blackmun:

Of course, the other side of this coin that Mr. Justice Rehnquist has raised is that if collateral estoppel applies, then in effect state court is the final arbiter.

Jeffrey J. Shank:

That’s correct.

Harry A. Blackmun:

And 1983 is, has its roots cut out from under, if it ever applied.

Of course, historically, you’d probably have something else again.

Jeffrey J. Shank:

Well, again, our position would be that clearly the collateral estoppel is inapplicable to 1983.

Potter Stewart:

At all, ever?

Jeffrey J. Shank:

Well, yes, but that’s not the issue we’re raising before the Court.

Potter Stewart:

And then, to go further, than did the Court of Appeals for the 8th Circuit?

Jeffrey J. Shank:

Yes, sir.

The Court of Appeals gave us a very limited issue, and that’s all we’re asking this Court–

Potter Stewart:

Limiting the elimination of the doctrine of collateral estoppel to cases, 1983 cases where the claim is the Fourth Amendment violation and post-Stone v. Powell?

Jeffrey J. Shank:

–Correct.

That way there would be no viable federal forum to vindicate the Fourth Amendment rights.

William J. Brennan, Jr.:

Do you think it’s relevant at all whether where 1983 was adopted in 1871… collateral estoppel had a requirement of mutuality?

Do you think it’s relevant at all to our decision here?

If we’re dealing with a construction of 1983 and if where 1983 was required collateral estoppel was not recognized except in situations of mutuality, does that apply here?

Jeffrey J. Shank:

Our position would be, no, but we’re not… we go beyond that to clearly… the two-prong test that petitioner suggested, whether or not a common law application would be applied, is that assuming, which it was, mutuality applied, then this case would never have gotten here in the first place, because I don’t believe there was mutuality of the parties, so the federal court never would have been able to present the issue.

William J. Brennan, Jr.:

All I’m asking… if you are urging that as part of your position?

Jeffrey J. Shank:

No, sir.

Our position would be in the issue before this Court, collateral estoppel is inapplicable.

William J. Brennan, Jr.:

But not for that reason?

Jeffrey J. Shank:

Not for that reason.

William H. Rehnquist:

Doesn’t the 8th Circuit opinion really fall between two stools, in effect, and they leave what could be arguably the worst possible result?

It says, in effect, for the Federal District Court not to intervene in 1983 until the matter has gone all the way through the state courts, but then it may intervene.

Jeffrey J. Shank:

That’s correct.

William H. Rehnquist:

So that if you’re talking about considerations of federalism or comity, perhaps there is a greater affront to the state systems if the federal court does not intervene until it’s, say, gone to the highest court of the state, and then the federal court decides differently than the highest court of the state.

Jeffrey J. Shank:

But we feel that we would not be interfering with the comity of federalism because we would never be in a position asking necessarily for the state conviction to be overturned, we’re not asking that a person in respondent’s case be removed from jail, we’re not asking that the state limit or revise the application of, say, the exclusionary rule.

So we don’t feel that we’re really interfering with the state court.

Byron R. White:

What is the rule in Missouri?

Jeffrey J. Shank:

As to?

Byron R. White:

Collateral estoppel.

About mutuality.

Jeffrey J. Shank:

There is no mutuality in my understanding of collateral estoppel in the State.

Byron R. White:

So that if there were a suit in the state courts similar to this suit here, it wouldn’t be thrown out on… or there would be no mutuality requirement?

Jeffrey J. Shank:

Correct, sir, and we would have a set of circumstances similar to that’s before this Court, the defendant in that case could raise the doctrine of collateral estoppel quite possibly.

Byron R. White:

And what would the Missouri… well, and what do you think the state courts would say?

What would they decide?

Jeffrey J. Shank:

Would they apply collateral estoppel?

I think the state court probably would.

That’s enough… that’s the whole reason for the–

Potter Stewart:

Well, you don’t really know.

The state court might find the same exception that the Federal Court of Appeals found.

Jeffrey J. Shank:

–Well, I think the doctrine lying behind the Civil Rights Act itself was that there would be a federal forum to prevent the possibility of a state–

Potter Stewart:

Well, this Court has held that there could be an action, a 1983 action in a state court.

Jeffrey J. Shank:

–Correct.

I understand that.

Potter Stewart:

And the State of Missouri might find the same exception to its generally applicable rule of collateral estoppel as did the Court of Appeals for the 8th Circuit.

Jeffrey J. Shank:

Correct.

And it may not.

Byron R. White:

Historically, don’t you understand that mutuality was required for collateral estoppel?

And that it’s only a relatively modern development?

Jeffrey J. Shank:

That’s correct, sir.

At the time the Civil Rights Act of 1871 was passed, mutuality did exist.

Byron R. White:

Do you know when the first Missouri case was that didn’t require mutuality?

Jeffrey J. Shank:

No, sir, I don’t.

I’d be glad to brief that to the Court.

Lewis F. Powell, Jr.:

Mr. Shank, I take it from what you say that if instead of having a Fourth Amendment issue you had a Fifth… say you were bringing a 1983 case on the theory that a confession had been extorted by force or violence, would collateral estoppel apply in that situation?

Jeffrey J. Shank:

In that situation a habeas corpus remedy would be available and in that circumstance the federal forum would be available and we would… again, our position would be the legislative history of the Civil Rights Act clearly precludes it.

But quite possibly that would be a logical course to follow.

Lewis F. Powell, Jr.:

Your answer is that collateral estoppel would apply?

Jeffrey J. Shank:

Yes, under–

Lewis F. Powell, Jr.:

In a 1983 suit?

Jeffrey J. Shank:

–Under those circumstances.

Potter Stewart:

And under the decision now before it.

Jeffrey J. Shank:

Correct.

Potter Stewart:

It’s not your view that it ought to be?

Jeffrey J. Shank:

No, sir, my view would be that the legislative history is clear that 1983 precludes the application of collateral estoppel in any circumstance.

William H. Rehnquist:

I take it you don’t regard this Court as a federal forum?

Jeffrey J. Shank:

Oh, yes; yes, sir.

I’m just saying that the opportunity at the time when the State Court of Appeals has ruled and this respondent in this particular case had, we can assume, a choice into which court he could proceed, I feel that it could have proceeded here or it could have proceeded into Federal District Court.

John Paul Stevens:

Mr. Shank, I’m not clear on one thing.

You argue that the collateral estoppel defense does not apply in the 1983 action for the reason that a federal forum must be available to try these issues.

Now, would that reasoning apply if you brought a 1983 action in the state court, which, as one of my colleagues suggested, you could?

Jeffrey J. Shank:

If the state court reviewed the Civil Rights Act and applied the legislative history… and I’ll use the word correctly here, it’s I think then, that it would have to be using the Federal Rules and that it could deprive a respondent of, you know, the federal forum.

William J. Brennan, Jr.:

I gather what you’re saying is the contour of the 1983 action, whether brought in federal or state court, has to be the same?

Jeffrey J. Shank:

That would be our position, now, just for unifying purposes for the federal and state courts to follow.

John Paul Stevens:

Even though your reason for asserting the need for disregarding the defense would not apply if you elected to sue in the state court?

Jeffrey J. Shank:

Yes, Your Honor.

William H. Rehnquist:

And even though you could come here from the highest court of Missouri if you felt the highest court of Missouri had misinterpreted 1983?

Jeffrey J. Shank:

Correct, but I think that choice would be as open for respondent.

He was compelled into the state court situation by whatever reason.

His first opportunity to make a choice as to which court he wants to go into would be after the Missouri… in this case, the Missouri Court of Appeals had filed its ruling.

There would be no other way for him to preserve his federal claim.

He’s basically forced to have it ruled upon in the state court, because if he does not he certainly would risk conviction.

And I don’t think as a practical matter that many people would want to take that risk involved.

We then get to… to follow that up, if I may, we then get to the point, then, if the state courts are able to preclude the litigation of civil rights under the Civil Rights Act, under those circumstances the Civil Rights Act for all intents and purposes would be dead in the majority of the cases.

William H. Rehnquist:

Well, what do you do with Stefanelli v. Minard, which refused to enjoin the use of evidence in a state court even though the contention was that it had been seized contrary to the Fourth Amendment?

Jeffrey J. Shank:

Well that, I would say, if it’s come to those certain set of circumstances, the Court was merely abstaining to let a state court make its determination, then certainly I don’t think that would necessarily have to preclude the litigation of the issue later on once the state court had finished.

If I may, to restate the issue we are asking this Court specifically to rule on, it is whether or not collateral estoppel is inapplicable in 1983 actions alleging Fourth Amendment violations when the collateral estoppel would violate 1983 legislative intent to provide a viable federal forum in which someone could vindicate his Fourth Amendment rights.

As the Court is well aware, this Court has never considered this particular issue on point.

Prior to 1976 in the Stone v. Powell decision, there had only been two federal appellate courts that had ruled.

Subsequent to 1976, other than the court below in this matter, there has only been two matters ruled on, two cases ruled on.

Recently a 9th Circuit case, in August, 1980, ruled that collateral estoppel would be inapplicable, and in particular it noted that because there was no right to appeal to the Supreme Court, it felt that the collateral estoppel would not be applicable.

All those cases, these latter cases, rely heavily on the legislative history, which clearly show that the Civil Rights Act was intended to–

Warren E. Burger:

We will resume there at 1 o’clock.

You have about five minutes remaining.

Jeffrey J. Shank:

–Okay.

Thank you, Your Honor.

0 [Recess.]

Warren E. Burger:

Mr. Shank, you may proceed.

Potter Stewart:

Mr. Shank, just before the noon recess you mentioned a couple of recent decisions, one in the 9th Circuit in this general area?

Jeffrey J. Shank:

Yes, sir.

Potter Stewart:

Are they in your brief?

Jeffrey J. Shank:

No, sir.

One was just decided in August, 1980.

It’s styled, Johnson v. Mateer, et al. And I just got the number.

It’s number 78-1012.

Potter Stewart:

In the 9th Circuit?

Jeffrey J. Shank:

Yes, sir.

Warren E. Burger:

Do you have the full cite there now?

Jeffrey J. Shank:

Yes, sir, I do.

It’s Johnson v. Mateer.

Warren E. Burger:

How do you spell Mateer?

Jeffrey J. Shank:

M-a-t-e-e-r, et al. And it’s United States Court of Appeals, 9th Circuit, 625 Fed 2d 248.

Warren E. Burger:

Two-four-eight?

Jeffrey J. Shank:

Yes, sir.

Potter Stewart:

And what did that case decide?

Jeffrey J. Shank:

That was decided on August 7, 1980.

Potter Stewart:

And what did it decide, what did it hold?

Jeffrey J. Shank:

It held that collateral estoppel would be inapplicable in a situation as we’ve presented to this Court.

It’s on all fours.

Potter Stewart:

In this particular situation, Fourth Amendment claim?

Jeffrey J. Shank:

Yes, sir.

Warren E. Burger:

So you say that’s in accord with the 8th Circuit line?

Jeffrey J. Shank:

Yes, sir.

Byron R. White:

Did you say there were two recent cases or one?

Jeffrey J. Shank:

That is the most recent.

The only other case would be the lower court decision and a case back in 1977 by a Federal District Court.

William H. Rehnquist:

How about all the cases cited in the footnote in Preiser v. Rodriguez?

Jeffrey J. Shank:

Those, Your Honor… most… Preiser was decided before Stone, I believe.

William H. Rehnquist:

So all of these turn on the effect of Stone?

Jeffrey J. Shank:

In our opinion that is one of the major considerations; yes, sir.

Lewis F. Powell, Jr.:

But is it not true that your basic position is that Stone is immaterial?

Jeffrey J. Shank:

No, sir.

We feel for the purposes of the issue before this Court it is all-encompassing because–

Lewis F. Powell, Jr.:

Yes, but I think you responded to an earlier question that if this were a Fifth Amendment claim you’d still make the same argument.

Jeffrey J. Shank:

–Yes, sir.

Well, we would there have the availability of habeas corpus and we’d have the federal forum.

Lewis F. Powell, Jr.:

Right, I understand.

I’m not talking about habeas corpus.

I’m talking about the 1983 suit for damages brought in a federal court where a state court had applied a Fifth Amendment… on the Fifth Amendment issue had acted contrary to the position your client would take in 1983.

You say no collateral estoppel there, also?

Jeffrey J. Shank:

Yes, sir.

In a broad sense of it, I would be in a position to suggest that we don’t feel that the legislative history would allow collateral estoppel to apply in any 1983 action.

Byron R. White:

Well, let me test it out.

Suppose there’s a Fourth Amendment claim brought in on federal habeas claiming that there wasn’t a full and fair hearing in the state court and the Federal District Court agrees, holds a new hearing, and finds that there was no violation of the Fourth Amendment and denies the petition for habeas corpus.

Then the petitioner who is a defendant in the state court in the criminal action sues on 1983 claiming a violation of the Fourth Amendment, and sues the police officers.

The police officers say, collateral estoppel.

What would you say?

Jeffrey J. Shank:

Assuming that the Federal District Court upheld the constitutionality of the search, he would then in that instance have been provided the federal forum that we feel that is a basic requirement for the 1983 action.

Byron R. White:

And you wouldn’t claim a… you would say that collateral estoppel applies?

Jeffrey J. Shank:

Well, going beyond that point, then, I would also suggest that it should not, based on the legislative history, but limiting it to the very issues before us, we would… under those circumstances, then we would have the availability of the federal forum, which we did not in this case.

Byron R. White:

So you think that’s what is really at issue is the–

Jeffrey J. Shank:

The federal forum, in this particular instance, is all-important.

Byron R. White:

–So you’re really saying this is a 1983 policy?

Jeffrey J. Shank:

Involving Fourth Amendment; yes, sir.

Byron R. White:

And that this Court was not a federal forum?

Jeffrey J. Shank:

I’m not saying it was not a federal forum.

It’s clearly a federal forum, Your Honor.

I’m saying that it is not a federal forum that this particular man would have to necessarily choose.

One problem that may arise with exercising a writ of certiorari in this Court, it’s quite possible that a pro se matter may involve a period of time and the civil rights action could actually… maybe the statute of limitations would preclude it.

William J. Brennan, Jr.:

Well, logically, I suppose you’d say, if he had come directly here and we had granted certiorari and we had passed on the Fourth Amendment and we sustained the state court, that then he could not go into 1983 because he had had his federal forum.

Jeffrey J. Shank:

Under the issue we’re asking the Court to decide, yes, sir.

Thank you, Your Honor.

Byron R. White:

You wouldn’t say that if we had just denied cert?

Jeffrey J. Shank:

No, sir.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.