Belcher v. Stengel – Oral Argument – November 02, 1976

Media for Belcher v. Stengel

Audio Transcription for Opinion Announcement – November 30, 1976 in Belcher v. Stengel

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Warren E. Burger:

We will hear arguments next in 75-823, Belcher v. Stengel.

We will be ready in the moment to counsel.

Mr. Bell, you may proceed whenever you are ready.

Robert A. Bell:

Mr. Chief Justice and may it please the Court.

This case is here up on the writ of certiorari the United States Court of Appeals for the Sixth Circuit.

On the question to the fact that an off-duty police officer, out of uniform, is required by Police Department Regulation to carry a weapon at all times, establish that any use of that weapon against the person of another, even though the officer is engaged in private conduct, at the time to be an action ‘under color of law’ within the meeting of 42 U.S.C Section 1983.

Sometime at your own convenience, fit it in wherever you wish, I would like to have you explain to me why the conduct that’s reflected by this record of this officer is any different from what it have been, had he been specifically detailed to work overtime that he has worked beyond his ordinary workday or workweek, if you will deal with that problem at some point?

Robert A. Bell:

I can deal with it in just a moment, Mr. Chief Justice.

The officer testified that he was a uniformed officer on foot patrol in area in Columbus, Ohio that is known as one of the most difficult areas to patrol.

The facts of this case will bear out that he was off-duty out of uniform and was a Columbus police officer.

So, had he been on overtime, I would respectfully suggest he would have been in uniform.

Well, the uniformed officer might be detailed overtime work in plain clothes that’s not uncommon thing to do?

Robert A. Bell:

No, Your Honor, it is not a common thing but again it would depend, I think depending upon other factors and that this officer was a foot officer on patrol.

Normally, they would not be assigned to plain clothes duty, doing overtime and I am not to say that, that’s true in every case.

On March 1st 1971, the petitioner, off-duty, out of uniform, and was a member of the Columbus Police Department, a Columbus police officer.

Approximately at 1:15 AM in the morning, was in a public bar known as Jimmy’s Cafe in Columbus, Ohio on the private, social activity.

An altercation developed in this bar between Respondents and other persons in the bar, not including the Petitioner at this time.

The Petitioner then became involved in this altercation and as a result of his becoming involved in this altercation, he resorted to the use of a 32 Caliber automatic weapon.

Firing it into the air and the use of this weapon resulted in the deaths of Respondents, decedents know and injuries to the Respondent, Stengel.

The Respondents then filed two complaints on the state of facts briefly stated.

Filed a complaint in the Court of Common Pleas Franklin County, Ohio, State Court and a complaint in United States District Court alleging violation of 14 or 42 U.S.C 1983.

Does Ohio have a tort claims act that permits suit against municipal corporations or the State?

Robert A. Bell:

No sir, to answer your question.

The complaint…

That is still sovereign immunity in most areas in Ohio, is that correct?

Robert A. Bell:

It’s correct, Justice Stevens.

The Respondents dismissed their complaints…

Specifically, is Columbus an area where the doctrine of sovereign immunity applies?

Robert A. Bell:

Yes.

Either against the municipality or what would be the municipality?

Robert A. Bell:

Municipality, not against the officers, but against municipality.

Against municipality, I mean the municipality would be exempt from liability by the doctrine of sovereign immunity under high laws, is that correct?

Robert A. Bell:

Correct and in the Federal System and Monroe versus Pape, the City of Columbus is not a person under 1983.

Now, the complaint was dismissed in the State Court by Respondents and he proceeded to try the case in United States District Court upon the complaint they filed stating and joining 12 officers along with the Respondent, Belcher.

At the close of the plaintiff’s case that the 12 officers were dismissed and the Respondent remained in the case.

What was the theory on which the other 12 officers were originally joined?

Robert A. Bell:

Under 1985, Title 42 conspiracies to one, to cover up the acts of the Respondent Belcher and two, to deprive the Respondents of the constitutional rights under 42 U.S.C. 1985.

Were they in effect Belcher’s superiors?

Robert A. Bell:

That is correct, and they were in the chain of command.

Mr. Bell, also was there not an enquiry by the Police Court of Enquiry?

Robert A. Bell:

Yes, Your Honor.

Is that initiated by the Respondent or how did that come about?

Robert A. Bell:

Well, in the Board of Enquiry, which was the Firearms Board, which meets every time an officer uses his firearm, was initiated automatically under the regulations of the Columbus Police Department.

It was not initiated by the Respondents.

The complaint alleged facts in general in the paragraphs 4 and 5, making general allegations and as we say conclusions of law that at all times, defendants acted ‘under color of law’ and in line of duty.

But in alleging the facts as to the Petitioner’s conduct in paragraph 8 of the complaint.

The allegations accepted is true and thinking in their best like for the plaintiff can only leave the conclusion that the Petitioner did not act ‘under color of law’.

The facts alleged in paragraph 8 of the complaint, if I may briefly refer to them.

I didn’t see complaint in the appendix, is it?

Robert A. Bell:

Yes Your Honor and it’s began at page 8, volume one and I am referring to page 10 of the…

I see that two volumes…

Robert A. Bell:

Correct.

Volume one, page 10…

I see…

Robert A. Bell:

And I am reading at the bottom where notice that says, paragraph 8, I am reading at the bottom where it begins, “Raymond L. Belcher, who was out of uniform and in no way identified as a Columbus policeman and in no way involved in the minor dispute heretofore describe intervened by attacking one of the plaintiffs at the scene from the rear by grabbing him around the neck from the rear.

Said intervention by said Raymond L. Belcher 8.33 being without any notification or attempt to notify anybody in the café that he was an off-duty Columbus policeman and without any attempt by said Raymond L. Belcher to make the police arrest, or a citizen’s arrest of any kind at this time.

The facts go on to state, Casey B. Stengel, one of the respondents, before the Court, attempted to kick the chemical mace equipment, which Raymond L. Belcher pulled from his clothing and which was blinding and choking the people involved from the hand of the said Raymond L. Belcher.

Whereupon, still without any warning, identification, or attempt to make an arrest, said Raymond L. Belcher pulled a gun from his clothing, which gun he was ordered and directed to carry as an off-duty Columbus policeman and that time he shot into the air resulting in the deaths of the Respondent Noel, Respondent Ruff (ph) and injury to Respondent Stengel.

What do you mean shot into to the air?

Robert A. Bell:

That was the testimony of Raymond L. Belcher.

Robert A. Bell:

He was testified that he was on the floor on his back being stumped and at that time, he pulled the gun out from under his back and shot into the air to get these men off to him.

The shots struck and caused the damage.

That man over on top of him?

Robert A. Bell:

Yes, Mr. Justice.

Has there been some change in position by both you and your adversary in this case, Mr. Bell, I gathered from what the allegations you have read in the complaint that the suggestion that the police officer did not ever assert who he was and that he never made any attempt to make an arrest.

10.34 the further the plaintiff’s cause and on the other hand, I gather from other material on the record that 10.42 whoever defended the case for Mr. Belcher defended it on the basis that he was more less acting in the line of duty.

Robert A. Bell:

That is correct.

That was a statement made at the close by the Defense Counsel and then the City Attorney, who prior to that and at the time of this act, was the Saftey Director and issued an order and a letter to Mr. Belcher.

The statement was made at the conclusion of the plaintiff’s case and argument for a directed verdict of acquittal.

The Court did not accept that statement as I understand it as a stipulation because he went on further to charge the jury as to the facts.

I submit…

Using this clause and arguments too?

Robert A. Bell:

Yes, he did and I respectfully submit.

And you really emphasized it?

Robert A. Bell:

Mr. Justice that the statement at the including argument was not evidence and I respectfully submit that the statement at the conclusion of the plaintiff’s case was not evidenced.

Mr. Bell, there was evidence; the Police Enquiry Board found precisely the same thing and that was evidence, wasn’t that?

Robert A. Bell:

The Police Enquiry Board did find that the officer has justified in use of his weapon…

And was acting in the line of duty.

Robert A. Bell:

…In the line of duty.

And was that evidence put into the record by the plaintiff for the defendant?

Robert A. Bell:

Well, I was not at the trial and I don’t recall, I am sure it was put in by the defendant or I mean, by the plaintiff.

Well, you supported the argument Defense Counsel made it because of the plaintiff’s case and it closed the entire case would it?

Wouldn’t you put that evidence in?

Robert A. Bell:

Could have.

Certainly, would have been consistent with this theory of defense anyway.

Robert A. Bell:

It would have been consistent with his theory of defense, but I can’t answer you as to the Defense Counsel but I am sure that the plaintiff would put that into.

You say there is no evidence with that, your statement in the closing argument by the City of (Inaudible) Bonnie Lawman related for you a conversation that she heard at the bar, between these three people in which one of them said, “He is the cop”, is that accurate statement?

Robert A. Bell:

The statement from Bonnie Lawman was the only statement that we could find that it indicated.

I thought that man you got was no evidence.

This mean there wasn’t much?

Robert A. Bell:

Well, Mr. Justice Marshall, the statements by Bonnie Lawman was, as far as we were concerned, was what she heard, number one, and we know from the testimony of the Petitioner that he did not identify himself or attempt to act ‘under color of law’ even though the Respondents may have thought he was or even questioned him.

They did not perceive his actions from as I see — read the paragraph 8 of the complaint where I am arguing at this point to have been acting ‘under color of law’.

In your view of the Federal Statute and this complaint, if Belcher had been in uniform and on-duty at that time and place, what would be the situation under the Federal Statute?

Robert A. Bell:

If he had been in uniform and on-duty, he had been acting under code of law.

What was that?

Robert A. Bell:

Because he would have to 14.12 the authority, he would have the 14.14, symbol of it.

Let’s assume all that with the plaintiff, that you can see that the plaintiff would then have had a valid action under the Civil Rights Statute?

Or would you only have a valid action if you can show excessive force beyond anything necessary?

Robert A. Bell:

That’s what I was going to lead up to.

Well, then why would he then?

Robert A. Bell:

Well, because if excessive force is used ‘under color of law’ that is the very thing that 1983 seeks to protect.

Well, why did — does 1983 talk about the deprivation of rights secured by the federal constitution or law?

Robert A. Bell:

In the Fourteenth Amendment.

Why is that a violation of Fourteenth Amendment?

Robert A. Bell:

The taking of life, the Fourteenth Amendment…

No, the Fourteenth Amendment does not forbid the taking of life.

Robert A. Bell:

Well, perhaps, Mr. Justice, I don’t understand your question.

Well, my question is pretty basic one in this case.

It’s one that wasn’t even discussed, it was hardly discussed by either District Court and the Court of Appeals, but why even assuming that this was — let’s assume that this policeman, Mr. Belcher, was in uniform and on-duty, and let’s further assume that everything happened the way it did happen, why were the victims of his shooting where 15.41 one person was injured very seriously and two were killed as I understand it.

Why would they have an action under 1983?

Robert A. Bell:

Because under 1983 if there is an abuse of authority or a misuse of authority, as stated in the traditional cases that have been before this Court before.

That is a violation of the constitutional right.

Of what constitutional right?

Robert A. Bell:

The right to not be punished without due process of law.

Well, that involves the judicial system. At least, it’s always been thought to.

We have a case that’s going to be argued and I guess later today, 16.23 but generally traditionally that involved the judicial system and the penal system, isn’t it?

Robert A. Bell:

Yes, but in the traditional case, the cases before this Court, the law has been set forth that the misuse of power possessed by virtue of State law and made possible only because the wrong door is closed with the authority of State law, is action taken under color of law, State law 16.49.

Alright, but let’s assume this is all taken under color of law, I have assumed that.

Robert A. Bell:

Alright, therefore, if he takes action under color of law and misuse that authority to, let’s say…

You remember, you are representing Mr. Belcher, you are not on the other side?

Robert A. Bell:

I realize that, I realize that, but I am trying to be professionally honest with the Court as I can.

Yes, I understand that but I really don’t — let’s assume that policeman in uniform, on-duty but not in an emergency; he is just driving from one station house to another, drives with gross and one negligence and strikes and kills somebody, does he has deprived that victim of his gross and improper behavior of any constitutional right?

Robert A. Bell:

It is our position and he would not in that case.

Well, then what’s a difference between in that case and this case?

Robert A. Bell:

There is no difference in that sense, but in our position of that case and this case, as you stated and that is what I am arguing.

Well, no, no, because in each case, he is acting under color of law.

Now, your present case I know that you argue that he would isn’t, right, but I am assuming that he is in both cases, both in the bar in Columbus, Ohio and hypothetically, in uniform and on-duty and also on the street in Columbus, Ohio where he just weaves and speeds and there is no emergency and he kills somebody.

Now, why an either case, is the victim deprived of any right guaranteed by the federal constitution or federal law?

Robert A. Bell:

Right, in the latter case, Mr. Justice Stewart, I agree that the victim of the automobile would not be deprived of constitutional right and would not be in action under 1983.

What about an officer in uniform approaches a bank and a bank robbery is going and he engages in a gunfight with the bank robbers, but inadvertently shoots and kills one of the customers or one of the employees of the bank.

Do you think that’s covered by 1983?

Robert A. Bell:

No, Your Honor, we do not and that is the one of the reason of our argument, that’s one of the purposes of our argument that we do not feel that 1983 should 19.02 under the color law should be extended to include these private acts and they would open up…

Within the theory of your case — then the theory of your case might more appropriately either this man was, in fact, on-duty and engaged in the normal functioning of the police under the special instructions to carry gun at all times.

Robert A. Bell:

It is our contention that the District Court hits on that spirit that he was carrying the gun only in his charge and we feel that overall that charge is not objected, to which I will get to later in argument, we feel that it was fundamental error.

Mr. Bell, let me get back I mean if you answer to Justice Stewart’s question.

You said that in the squad car incident which Justice Stewart hypothesized, you felt that was not a violation of any constitutional right.

Robert A. Bell:

Correct.

The information was that you failed in the bar case it is a violation of constitutional right?

Robert A. Bell:

It could be.

What would you turn on?

Robert A. Bell:

I would turn on my judgment, it would turn on if the officer arrested the person, took him into custody and then proceeded to be the confession out of him or to in someway…

That would be like Screws?

Robert A. Bell:

Screws, yes, Your Honor, or the…

What Screws said he had to do with an intent and expressed intent that denied any right guaranteed by the constitution.

Robert A. Bell:

That is correct and this Court reversed the Screws’ case upon the charge of the Court, calling it fundamental error because the Court did not charge on that very point, Justice Marshall, and that was a criminal case under 18 U.S.C Section 242.

But the constitutional rights 20.54 of a State is precisely the same, there wasn’t the right to…

Robert A. Bell:

Excuse me, sir.

The constitutional right of the State in Screws is precisely the same, the right not to be deprived of life without due process of law.

Robert A. Bell:

That is correct.

Yeah.

Robert A. Bell:

To further answer Justice Rehnquist’s question, the case most in point is the matter of Williams v. The U.S. where a Private Detective in State of Florida was engaged by a lumberyard to catch petty thieves and he had an authorization issued from the State.

He also had within an on-duty police officer in uniform.

He would catch these people, take them to a pain shed and plead confessions out of them, literally, beat confessions out of them and at the time that he was doing it, which is very significant I suggest, he was flashing his batch, his color of authority.

This was not done in this case.

Now, we respectfully submit that the facts in this complaint indicate private conduct in that it lacks the jurisdictional — creates a jurisdictional fault in the District Court, as attempting to include within 1983 those matters that are private acts that we have just discussed.

Right, you started I think at the outset of your statement of the case, Mr. Bell, by telling us that a companion suit had been filed in the Franklin County Court of Common Pleas.

Robert A. Bell:

That is correct.

Then what happened to that suit?

Robert A. Bell:

That was dismissed by Respondents and they elected to…

Dismissed by the plaintiffs?

Robert A. Bell:

Yes.

Therefore, the only fact in the complaint from which we can derive official conduct of the Court police is the use of the weapon, which complaint alleges petitioner carrying pursuant to a department regulation requiring off-duty officers to carry a weapon at all reasonable times, under a theory that officers are on-duty 24 hours per day.

To focus upon the use of that weapon alone, coupled with the facts stated leading to the conclusion that they will use in only in a totally private manner.

We feel it does not state facts upon relief can be granted and as if the weapon used is by and of itself determine to satisfy the under color of law requirement, then once again, the traditionally excluded private uses that we have already discussed with the Court.

We will be — within the ambit of 42 U.S.C. 1983.

Mr. Bell, you say just the use of the private weapon, but does the record tell us why the defendant became involved in the incident?

His motivation, was it a private motivation or an effort to maintain the peace?

Robert A. Bell:

There was a conflict of testimony on this point.

If we take these evidence most favorably to the verdict, do we not have to assume that he thought to bright about peace and therefore perform his duties as an officer?

Robert A. Bell:

It is our position that whether he sought — either that interpretation or if he became an aggressor or is it a matter of self-defense, it doesn’t matter, because he did not attempt to act under color of law as it’s been defined by the cases in this Court.

What is your theory of what he was trying to do when he got involved?

Robert A. Bell:

The evidence was that he was sitting in the booth with a lady friend and two other people.

The altercation that the fired into bar among Respondents…

Between the plaintiffs and third party?

Robert A. Bell:

Third parties.

And why did he get involved?

Robert A. Bell:

Alright.

First, the testimony was that he said, well, I am going to arrest three, no I am going to arrest two of the officers that’s part of it in the evidence and then he said, I am going to go to the phone and call on-duty officers, and he never got…

Excuse me, sir.

It is not true that both of those statements are inconsistent with the purely private motivation and do they not add to the evidence of the gun, so can you properly say there is nothing with the gun involved in the case?

Robert A. Bell:

Yes, Your Honor, it is our position that the matter of fact that he sought to get out the bar to get to a phone, was not an act under color of law that would bring the Respondents — they would perceive that they were acting under the color of law and that they were going to be arrested or that the petitioner was an officer.

The act alone, to trying to get out of the bar to get to the phone, does not make him the police officer.

Wouldn’t that act alone have done the most sensible thing to do if he had been in uniform, on-duty to call for some backup help?

Robert A. Bell:

I think he would have, I think yes, sir.

I agree with that.

Well, then that’s consistent with what your response was to Justice Stevens which adds up to me that he was engaged in police activity.

Robert A. Bell:

Also it could be private activity if you are going to call the police when you see trouble.

Why this is, 25.53 to arrest him?

Do you think he was going to make a private arrest?

Robert A. Bell:

No.

Your Honor, he was not going to make any arrest, he was going to get help.

I thought you first said he was going to arrest one or two of them.

Robert A. Bell:

No, he stated, I was going to arrest them, but by calling on-duty police officers, not himself.

I mean the arrest is not private, that word 26.15 does not private word.

Robert A. Bell:

No.

‘Arrest’ is not a private word.

Robert A. Bell:

I agree with that but his acts were not act.

So, he was acting as a policeman?

Well, let’s put it this way, he was acting as a policeman in plain clothes?

Robert A. Bell:

He was acting, I think Your Honor, more like a policeman off-duty who was required as testified by the chief of police to take action.

Right.

Robert A. Bell:

Rather that action was to go and call other policemen.

Then how could it be off-duty?

I thought you said he was on-duty 24 hours a day.

Robert A. Bell:

No, they are on-duty eight yours a day, on call 16 hours a day.

I thought you said the reason they carry the gun is because they considered to be on-duty 24 hours a day, I heard you wrong?

Robert A. Bell:

No, you heard me correct.

That was the theory of the purpose of carrying the weapon that they were expected to be on-duty, but in fact, they were really on-duty eight hours a day, on call 16 hours a day.

They were expected to be on-duty and so he was acting as a police officer, out of uniform, off of official duty but assumed to be on-duty?

Robert A. Bell:

That is correct, from his superiors.

And that is an under color of law.

Robert A. Bell:

And I will definitely acts of the defendant or petitioner were private acts, they were not acts under color of law.

He did not tend to exercise his authority under the State, except to go and try and get to the phone and he never got there.

If he had said that the things seems to be disturbed and do nothing about it, would he be violating his oath of officer as policemen?

Robert A. Bell:

Yes sir, he could very well and then violating his oath as officer.

Of course, can he was acting under color of State law, wasn’t it?

Robert A. Bell:

Only in going to get other policemen not as to the Respondents.

Well, when did all the trouble come, when he was on his way to get a policemen?

Robert A. Bell:

Yes, he was…

Which was a policeman’s act?

Robert A. Bell:

Yes, sir.

However, it was not an act as to the Respondents.

He did not attempt to take them into custody or arrest them or in the traditional cases that have been before the Court.

May I reserve, Mr. Chief Justice, remaining of my time.

Mr. General Lewis.

John H. Lewis:

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

The question that Mr. Bell says is this before the Court is not before the Court in any reasonable interpretation, reasonable and accurate interpretation of this record.

Perhaps, some of the argument that advanced here should have been advanced in more detail, imposing the petition through writ of certiorari.

I think there is not enough before the Court in this record to establish conclusively that the question that petitioner says is present is not here by any reasonable accurate interpretation of the record.

Well, Mr. Lewis, if this man, the petitioner here, Belcher — I will repeat the same question, I put your friend, had been on-duty in his uniform and everything else had occurred just as this record shows it, would you have an action under 1983?

John H. Lewis:

Certainly, certainly to come back to the under the theory of (Inaudible) Monroe v. Pape.

Well that involved the Fourth and Fourteenth Amendments on unreasonable search and seizer that which is — I guess which everybody is fairly protected by the Fourth and Fourteenth Amendments, but what constitutional provisions are involved here, what constitutional protection?

John H. Lewis:

The deprivation of life without due process law seems to me that the we have …

Well, that be true then the hypothetical case of the grossly negligent policeman driving on-duty not on an emergency, strikes somebody and kills him?

John H. Lewis:

I think that would bring him to the area of purely a tort?

Well, subjected to a tort also, they are both tort?

John H. Lewis:

Yes.

I mean that doesn’t answer the question, does it?

John H. Lewis:

Well, in the situation of driving the automobile, the officer wouldn’t be in the process of doing anything forcing a law or…

Well he would be on-duty and on-duty officer going from one station and also to another and that’s assume he is corroding down as straight at 90 miles an hour and strikes and kill somebody, that person clearly has the a tort action but as he been deprived as the victim being deprived of any rights secured to him by the federal constitution and our federal law and if so — right?

John H. Lewis:

Well, in the tort situation, there was no effort to enforce the law in the driving.

So that wasn’t the situation enforcing a law.

Here we have a situation where the officer was in the process enforcing the law, one of his duties, performing one of his duties.

Really — let’s assume it was the duty of my hypothetical policeman to go from one station house to another, and he was acting within the scope of his duty, in uniform, in a police car, on-duty, what’s the difference between the two cases?

John H. Lewis:

Well, I think in our case, we have intentional act we have the under the civil part, the civil section of the civil rights act, the person is presumed to do what he — the reasonable result of his act.

Here we have a man shooting a gun, close ranged to the vital parts of the body of two people that were killed; one fell over shot of other.

The constitution doesn’t say anything that differentiates an injury caused by somebody at close range with a pistol as contrasted with one caused by occurring in automobile.

There is nothing in the constitution making that sort of differentiation, is there?

John H. Lewis:

No.

I think that’s true, I think the color of law…

Let’s conceive that you are correct about color of law, about that he is acting under color of law.

Now then my question goes beyond that and which is simply what rights or liberties protected by federal law or the federal constitution were denied the victim?

John H. Lewis:

I think it’s life liberty and probably of due process of law.

How would that equally be true in case of the grossly negligent driver, if you are correct?

John H. Lewis:

Well, I have some trouble of words as that situation meets the color of law.

I am assuming the policeman is acting under color of law, in both cases in my question.

John H. Lewis:

Well, if you are assuming he is acting under color of law in those fires.

The policeman in uniform, on-duty going from one station house to another is acting under color of law, — we are clear about that, could we?

John H. Lewis:

Well, I don’t believe, I don’t know that the case isn’t necessarily going that far that the definition of the color of law.

What if a policeman will serves the bank robbery, seize someone fleeing who has reasonable cause to think rob the bank, shoots at the person and kills him and say it takes place in Ohio and Ohio says that its justifiable for an officer in that position to shoot a fleeing fellow.

If it turns out and he was mistaken as to that person, does that person have a cause of action under the 1983?

John H. Lewis:

I do not think so.

Why is that different from your case?

John H. Lewis:

Here we have an officer that the evidence taken in the most favorable like to be complainant was in the process of calling a disturbance.

He entered into his part of his police duties.

Well so in my case, certainly no one could be more in the performance of his police duties than in uniform having just witnessed a bank robbery and trying to prevent an escaping fellow, someone who we thought was an escaping fellow.

John H. Lewis:

Well I think the distinction is something it is a question of a purely accidental occurrence happened in good phase and the part in the performance of duty and the situation that we have here shooting three people at close range and it is all done and submitted to the jury and there was no justification and intentional is excessive force.

Well, my hypothetical, the man is much more arguably in the course of duty then than in your case is that not?

John H. Lewis:

Yeah.

So what is it that would lead you to say, in my case you do not have a claim under the 1983, but in yours you do?

John H. Lewis:

Well, I think in both instances if we assume we are under color of law it is a question of the excessive force used under the circumstance.

But what is the constitution distinguished on the basis of excessive force?

John H. Lewis:

Well, I think that is the thrust of Monroe versus Pape and the Screws case, as I understand that there was an excessive force used.

Screws was someone in custody in a jail and beaten to death, whether or not.

Monroe was Forth Amendment violation, so you never had to go to just the procedural of guaranties of the Fourteenth Amendment?

Mr. Lewis, let me ask you two questions and I think maybe relevant to Mr. Justice Rehnquist inquiry, supposing that facts that shown that the officer said to the deceiving before he shot in.

I do not think you need a trial, or take care all things without always judicial process.

We will get things done in a hurry, I would suppose that would support a claim amended in the denied due process of law and I think that you would agree with that, would you not?

Now, the second question I would like to ask is, does the question presented in the petition for certiorari raised any issues whatsoever with respect to whether it has to be negligence deliberate intent such as I raised or any of these different hypothetical cases, is that before us today?

John H. Lewis:

I do not believe so.

I do not believe so, I think the sole question that is presented here is was Belcher acting under color of law and was this private conduct and all this has been submitted by the facts and the detailed facts of this have been submitted to the jury of the trial Court was carefully instructed the jury to decide the cases as this color of law.

The defense counsel used that theory through out the case including the final argument.

And there is no question as to the propriety of the jury instructions before us? We have to assume that jury was property instructed under the nature of the violation was?

John H. Lewis:

Well it is big argue and view the fact that they did not except to the jury charges although they are seem to be coming in the backdoor now saying that there is something no matter was the jury charge after the — all the volume of evidence about color of law and its confined to other things that have not – have not even mentioned yet.

There is overwhelming amount of evidence and the record that supports the color of law theory that it is not solely the gun regulation and the Court of Appeals said and stated that if I could come back to the initial place of Mr. Bell started his argument.

He is again like he has done throughout some of the briefs and like it is happened in the other Courts they have taken part of the facts here and isolated them and not like completed an accurate facts including their further allegation this first complaint.

The first crime related to color of law that you did not read to you.

We stated that there were other paragraphs here that were not even mentioned.

Now the posture of this case on the motion to dismiss the complaint that he becomes back to this.

There was a motion to dismiss and there was a…. there were depositions taken before the Court ruled on the motion to dismiss.

Depositions taken of Belcher, of course at the time the suit was filed we had no way of getting his deposition.

At that time Mr. Belcher admitted used in the deposition, which is before the Court and for the District Court that he shot the two men and that he chase the third man out the door that could fade or apprehending.

He used the words that indicated more than we knew because we only had one survivor what his intention was.

In addition to that Belcher admitted at that time that he deprived and he had received industrial compensation for some minor injuries in occurrence of that at the posture, the case and before the Court had ruled on the motion for to the pleadings, I filed the motion for partial summery judgment.

On the issue of color of law, that settled the issue of color of law.

The Court… there was a dispute of facts and the Court, I think properly overruled that motion at that stage let the facts give out.

Likewise, we overrule the motion to dismiss the complaint and the inefficient to the complaint and I think this was a proper ruling throughout the entire trial, the District Court allow the jury to settle the disputed facts what happed and as Mr. Justice Stevens says at this point, the evidence has to be considered that most favorable light to the plaintiff.

Mr. Lewis, at which point you say point to on the color stated forth, that are in the record of course?

John H. Lewis:

Those are in the record.

There is a conflict of what the officer set out to do when this relatively minor obligation occurred, but there is evidence in the record as we got up from his moves.

John H. Lewis:

He withdrew a mace, there was again Chemical Mace that was again issued by the City of Columbus and that he started tort and spray these people that were had the altercation, 20 feet away, there is evidence to that effect that was something was issued to him by the city Congress he did intervened.

You are saying that just where the policeman majority were on-duty and uniform?

John H. Lewis:

Not necessarily what he would do, he could have used better judgment in notifying in who he was, but he was…

Well if he had a uniform, would that be necessary?

John H. Lewis:

Well probably not.

Would not it be sensible to use of the mace first instead of the automatic?

John H. Lewis:

Yes.

So up to this point except for the uniform, he is acting just like a policeman?

John H. Lewis:

Right, right, absolutely his act and he continued to act like a policeman.

Would you say the pursuit of the third man was also acting like a policeman?

John H. Lewis:

Very definitely.

He use the phrase in there he did not want him to get away.

Here in one moment, he comes with the story is varied as the case goes on it is changed it around and then he is try to put himself in some defense, but he says here I am defending myself on the floor, yet in fear of my life, he had seconds later in the very small café jumps up, he chases a man outside the bar just trying to get away.

He slugs him with the gun outside.

Now that certainly was not the defense or was act of a policeman to get the other man, the third man from getting away.

These are the things that are in the record before the occurrences then we come into the, what we put in the record afterwards.

The application for compensation, industrial compensation that he claims that he is in line of duty.

We have the finding of the firearms review board, the statement of review after reviewed all the investigated facts that this was in line of duty.

We have the admissions by counsel.

Counsel tried the case on the theory and tried to use this as a defense that he was causing his defense with the good works of a police officer who is trying to call a disturbance.

We have these arguments to the jury at the end it says, this is what the officer had to do.

Now after all that evidence it is a waived by jury, waived by Court of Appeals and found to be overwhelming evidence they are back here saying, “Well, we want another shot, We want to withdraw the whole theory of the case and have a special shot that we are not under color of law.

We want to come back here.”

We think they have procedurally waived everything that there is — by inference they are there is something another with the charged report was not quite complete in there for something this kind, but yet they did not object to it.

There was no objection of charge throughout.

I think the procedure we waived everything that they are now trying to bring before this Court to the third time.

They have been cutting the facts here, leaving out the complete facts, presenting a case to this Court that is not a full and complete record and that was the reason that I do not waive the question that they are trying to present this before this Court.

I think we are still talking about basically what perhaps I fail to adequately cover in opposing the petition for certiorari that the question is not here.

Now, that this way (Inaudible) we were acting under color of law, that is all this before the Court.

Let me ask you this Mr. Lewis, why did you dismiss your – most of issues filed in the Franklin County Court of Common Pleas?

John H. Lewis:

That lawsuit as I recollected and I do not remember I think it was filed sector or there was a time…

It was filed when?

John H. Lewis:

It was filed after this suit was filed here and was filed against the City of Columbus, as I recollect that suit.

It is not in the record in this case, but there was a period of time involving, I believe, they can’t state the cases where the question of sovereign immunity was up in the air in Ohio.

There was an Court of Appeals decision in Ohio that forcibly and very dramatically argued against the doctrine of sovereign immunity and it was at the part of the case to keep open a direct crime against cities, if there was a suit pending it had nothing was not too extensive with this, who is not in the election.

Mr. Stengel was not a defendant in that suit as you remember?

John H. Lewis:

Well he was a plaintiff.

I mean Mr. Belcher was not a defendant, excuse me.

John H. Lewis:

As I remember that case and it is a long time, it is not in this record, as I remember it was directed to the city congress for the purpose of taking advantage of the possible relaxation of the doctrine sovereign immunity, which was up in the air and by decision of the Northern Court of Appeals in the State of Ohio.

Judge wrote a vary opinion that has not been accepted by the Ohio Supreme Court.

That was what their case was about.

I think that you filed that case?

You were the attorney?

John H. Lewis:

Yes, yes and it was the dismissed as the law became clear from ruling of the other case and it is not a part of the record in this case and…

Well it would be matter of public record?

John H. Lewis:

Yes and if I have known, I could have been better prepared.

Mr. Lewis assuming for the moment that the case is here, as presented by the petition, does your position depend on the intent of the officer at that time he participated in this fray?

I put that for another question too that may sharpen it little bit suppose instead of his having said according to some of the testimony that he was going to arrest these people to tend his girlfriend and said, “This look like a good fight.

I think I will get into it,” and it moved from there into what happened would you have case there?

John H. Lewis:

Well I think the Court’s question comes to a situation where you might have purely private conduct that all the evidence or the way that the evidence looks the other way.

Putting hypothetical case to you, that there is no evidence as to his intention beyond the statement he made to his girlfriend, “It looks like a great fight.

I think I will get into it”.

He did and ended up shooting two people with his service revolver and using his mace.

John H. Lewis:

I am afraid in that situation we could have facts if we could argue over purely private conduct and we would be in the question that they say before the Court but those — there is a handful of facts that the…

If the facts have been and not stated and you think there be no color of law?

John H. Lewis:

I can see situations and I suspect that is one of them and where there would not be color of law.

Let us assume taking Mr. Justice Powell’s hypothetical assuming that this policeman is in uniform and on-duty and stopped by a bar to see how one of constituencies have been along and everything else happened, as did happen here but he was in uniform and on-duty, but he said to his girlfriend and to the bartender, “This looks like a good fight, I think I will get into it,” and then with the results describe by Mr. Justice Powell, which is the same results here two people killed and one injured, where those who have been denied any constitutional rights?

John H. Lewis:

Well, I think in that situation you probably do not have the color of law…

Well I am assuming there is color of law… I am assuming he is in uniform and on-duty.

John H. Lewis:

Yes I think he would be.

What rights guaranteed by the constitution?

John H. Lewis:

Life liberty and pursuit of help.

Constitution does not guarantee the pursuit of happiness that is in the declaration of independent and so far as life and liberty goes, it does not guarantee those either.

It just guaranties that nobody should be deprived of them without due process of law by a State.

John H. Lewis:

Yes.

Well, I do not see how it can be under color of law in the situations or District Court cases that say if the uniform would not have anything to do, instead of do not think is under color of law in that situation and it is matter here that the color of law is a controlling thing before this Court.

Now that is all before this Court as I understand the motion it was the sufficient evidence in this record that he was acting under color of law.

You can assume it under this question, you can assume that he is acting under color of law because the question is, whether they are acting under color of law or not that is the question.

John H. Lewis:

And I think the record is completely clear and any fairful interpretation that he was there is a…

That is all reports.

John H. Lewis:

Well, that is my understanding and I have it.

Is there any discussion in Judge White’s opinion and the Court of Appeals as to what federally protected right was invaded here?

I know he mentions the Due Process Clause of the Fourteenth Amendment, the protection clause as they are just mentioned, is there any discussion?

John H. Lewis:

I do not believe there is any detail.

Was that brief you argued before the Court of Appeals?

John H. Lewis:

Well I do not believe so.

I do not believe so.

What is the basis for your claim in… well what was the jurisdictional statute that you relied on and filing your claimant the Federal District Court?

John H. Lewis:

Well that 1983 claim …

Well 1983 does not by its terms comparing, was the 1343 the section it says, if you state a claim under 1983 the Federal Courts or jurisdiction?

John H. Lewis:

I do not believe so.

Your complaint as I remember it jurisdictionally relayed on both the Section 1343 and Section 1331.

I think just saw it.

Well, let me ask you this Mr. Lewis, if you are going to District Court and say, my claim arises under the constitution of the United States because it is under 1331 and your case is try to jury and so forth is the existence of a constitutional question is that a jurisdictional question so far as the District Court is concerned?

Is that the kind of thing that it can be raised at anytime, or is that the thing that has to be preserved by the party?

John H. Lewis:

I think it has to be preserved with parties.

Because Federal Courts are not Courts of general jurisdiction, they are Courts of limited jurisdiction and the Court is always to free to examine its own jurisdiction you would agree with those propositions would you?

Mr. Lewis, you are making a fair and persuasive argument that the petition states a question that is quite different from the theory on which the case was represented below, did you file more than one brief in opposition to the petition for writ of certiorari?

John H. Lewis:

No I did not.

That is a briefing.

John H. Lewis:

I have indicated that they see the case and it was probably in an adequate presentation and I think that, that the things that probably should have been presented in the 30 days over here.

There are now before the Court.

I think that — although I am not in the position to request that forcibly because of the incompleteness of my brief.

I think there is an amicus brief here that suggests that one disposition as the whole thing that was improperly granted and I do suggest…

Amicus brief was not filed until August after we had granted the petition, we did not have very much in liking the…

John H. Lewis:

That is true and it is a rare case that I understand there are a case or two where on further, as the Court develops further information about the facts that there is a determination of thing it was improbably granted, those things to became apparent to the Court that were not apparent to the Court when the writ was granted and you said that this position that I have suggested but I have not suggested as forcefully in my brief is perhaps the solicitor general did because I felt maybe I was not entitled to.

I should have presented more forcefully in my opposition of the motion station for writ of certiorari, but I do I think that that is appropriate solution or in the event that I think in a (Inaudible) is an appropriate answers.

When the whole record is accurately considered, I think we have a manufactured record, manufactured argument that has been presented the color of law issue has been out of this case, procedurally out of this case and this is not… the question that they say is before this Court is not before the Court.

Do you have anything further?

You have about two minutes.

Robert A. Bell:

Mr. Chief Justice may I have please the Court.

Our position is that the question has been preserved upon the motion filed in the District Court under Rule 12 (b) Federal Rules of Civil Procedure was preserved throughout the trial, preserved in the Circuit Court of Appeals and we feel that it is still alive here today as to the question of whether or not the Court had jurisdiction under 1343.

The other remark that I would like to state that in question to Justice Marshall as to the petitioner going through the following, it is our position that, that act of going to the phone could have been an act of an individual or an officer or person with any sort of duty or not as a private individual could have gone to the phone to call police and we feel that there is something more must take place to bring this case within the ambit and the actions of this, of the petitioner within the ambit of 1983.

Like what?

Robert A. Bell:

Showing his batch, telling them they are under arrest, advising them to use the police officer, seizing this list, the actions that they were taking.

And the act (Inaudible)?

Robert A. Bell:

As far as I know I did but I…

I do not know what I mean, I cannot assume we have it?

I have a great difficulty going outside the record.

Robert A. Bell:

I understand it, nothing further Mr. Chief Justice.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.