Pembauer v. City of Cincinnati

PETITIONER: Pembauer
RESPONDENT: City of Cincinnati
LOCATION: Pennsylvania Department of Public Welfare

DOCKET NO.: 84-1160
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 475 US 469 (1986)
ARGUED: Dec 02, 1985
DECIDED: Mar 25, 1986

ADVOCATES:
Roger E. Friedmann - on behalf of the respondents
Robert E. Manley - on behalf of the petitioner

Facts of the case

Question

Media for Pembauer v. City of Cincinnati

Audio Transcription for Oral Argument - December 02, 1985 in Pembauer v. City of Cincinnati

Warren E. Burger:

We will hear arguments next in Pembaur against Cincinnati.

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

Robert E. Manley:

Mr. Chief Justice, and may it please the Court, to a certain extent this case can be characterized as the opposite of the Tuttle case which this Court decided several months ago.

Here we do not have low level policemen going off on a frolic of their own to violate constitutional rights.

We have the opposite.

We have patrolmen and deputy sheriffs who have grave reservations about the propriety of their chopping down a door in order to search a private doctor's office without a search warrant, armed only with an order to attach the bodies of people who may or may not be inside and who are not the owners of the premises.

Because of these grave reservations, they summoned for instructions from their superiors.

Ultimately, their superiors referred the problem on up to the county prosecutor, who is an elected official, and who is--

William H. Rehnquist:

Would you classify him as a superior, Mr. Manley?

Robert E. Manley:

--Well, he is the policymaker in terms of legal matters for the county, because the statute under which--

William H. Rehnquist:

Can he instruct the chief of police what to do?

Robert E. Manley:

--He can instruct county agencies what to do.

The statute expressly gives him authority to instruct county agencies what to do.

William H. Rehnquist:

But this is the city of Cincinnati.

Robert E. Manley:

Well, the matter before this Court only involves the county of Hamilton.

William H. Rehnquist:

The county, Hamilton County.

Robert E. Manley:

The Hamilton County deputy sheriffs.

The Sixth Circuit reversed the trial court with respect to the city of Cincinnati, so the only issue is whether or not Hamilton County has exposure for this unconstitutional invasion.

William H. Rehnquist:

So if the prosecuting... if the county attorney, if that is the term in Hamilton County, wants a particular item seized by the police, he can tell the chief of police, go out and seize that item, I think it is legal to do so?

Robert E. Manley:

Well, in this particular--

William H. Rehnquist:

Can you answer the question more generally?

Robert E. Manley:

--Well, I don't know that he can do that to the chief of the Cincinnati police department.

I think he can do it to the deputy... the sheriff's department under the--

Byron R. White:

You mean he has line authority over him?

Robert E. Manley:

--No, the sheriff is elected, and his line authority, but we have a peculiar statute in Ohio.

Byron R. White:

I know.

I suppose the prosecutor is certainly authorized to give them legal advice, but is he authorized to order the sheriff to go out and search a house?

Robert E. Manley:

Well, as a matter of fact, the statute expressly gives them the authority to give instructions.

It is Ohio Revised Code Section 309.08 and 9, and it gives him--

Sandra Day O'Connor:

Where is that in... are you referring to something before us?