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LAVERNE v. CORNING

July 6, 1970

Erwine LAVERNE and Estelle Laverne, Plaintiffs,
v.
Howard J. CORNING, Jr., Mayor, Hutchinson Dubosque, Deputy Mayor, Police Commissioner, and a Trustee, Orin Leach, John Mackay and Douglas Despard, Trustees, Martin Dwyer, Chairman of the Planning Board, Hugh Johnson, Building Inspector, and Edward J. Meehan, Police Sergeant, jointly and severally and individually and as respective officers as stated of the Incorporated Village of Laurel Hollow, Defendants


Tenney, District Judge.


The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

This action commenced by plaintiffs Erwine and Estelle Laverne under the Federal Civil Rights Act, 42 U.S.C. ยง 1981 et seq., alleges in two separate counts on behalf of the plaintiff husband and wife, respectively, that on three specified dates in 1962 the defendants, while acting in their official capacity as officers of the Incorporated Village of Laurel Hollow (hereinafter referred to as the "Village"), unlawfully entered upon plaintiffs' premises and conducted unlawful searches and seizures thereon in violation of plaintiffs' constitutional rights protected under the Fourth and Fourteenth Amendments to the Constitution. In two additional counts (not the subject of the within motion) plaintiffs further allege that the same defendants conspired to deprive plaintiffs of these constitutional rights. Predicated upon the above allegations, compensatory and punitive damages are sought.

 Pursuant to Fed. R. Civ. P. 56, plaintiffs now move for summary judgment, interlocutory in character, solely on the issue of defendants' liability to them for compensatory damages on the first two counts of their complaint.

 By cross-notice of motion, dated April 8, 1970, defendants also move for summary judgment.

 There is apparently no dispute as to the following facts:

 Each defendant is an officer of the Village, and at all times relevant herein plaintiffs resided and maintained an art studio on premises located in the Village. On July 24, October 18 and December 17, 1962, one or more of the defendants, acting as an officer of the Village and pursuant to public authority, entered plaintiffs' premises without the consent of either plaintiff and conducted a warrantless search of the premises. On two of these occasions, photographs of the interior of the premises were also taken. On October 18 and December 17, each defendant acted with the knowledge of the others and pursuant to his local authority. The fruits of these uninvited entries and warrantless searches were used in a subsequent criminal prosecution against the plaintiff husband, and in a quasi-criminal and civil proceeding against both plaintiffs for their alleged violation of a prior injunction enjoining them from further violating one of the Village's building zone ordinances. Based upon a specific finding by the New York Court of Appeals that the searches and seizures were unlawful, the plaintiffs ultimately succeeded in each of the three above-mentioned proceedings. People v. Laverne, 14 N.Y. 2d 304, 251 N.Y.S. 2d 452, 200 N.E. 2d 441 (1964); Incorporated Village of Laurel Hollow v. Laverne Originals, Inc., 24 App. Div. 2d 616, 262 N.Y.S. 2d 625 (1965).

 Plaintiffs admit that no Notice of Claim has been served upon the Village or the defendants, and that the action was not commenced within three years after the occurrence of the events upon which the claim is based.

 In view of the sixteen years of hostile litigation between the plaintiffs herein and the Village, a brief chronological summary of some of these lawsuits should be useful in illuminating the present posture of the instant suit.

 In 1954, the Appellate Division of the Supreme Court of the State of New York modified and affirmed a judgment below enjoining plaintiffs from using their premises in violation of Section 5.0 of the Village's Building Zone Ordinance. Incorporated Village of Laurel Hollow v. Laverne Originals, Inc., 283 App. Div. 795, 128 N.Y.S. 2d 326, aff'd, 307 N.Y. 784, 121 N.E. 2d 618 (1954).

 In 1963, Mr. Laverne was criminally prosecuted and convicted, and Mr. and Mrs. Laverne were adjudged in contempt of court and fined for violating the 1954 injunction. See Incorporated Village of Laurel Hollow v. Laverne, Inc., supra.

 In 1964, the New York Court of Appeals reversed the criminal convictions, specifically finding the warrantless searches and seizures unlawful and in violation of plaintiffs' constitutional rights protected by the Fourth and Fourteenth Amendments. People v. Laverne, supra.

 The following year the judgments fining plaintiffs and holding them in contempt of court were reversed based upon the Court of Appeal's finding noted above. Incorporated Village of Laurel Hollow v. Laverne, Inc., supra.

 It is fundamental that the guarantees against unreasonable searches and seizures and against the submission into evidence of unlawfully seized evidence are rights protected by both the Fourteenth Amendment and the Federal Civil Rights Act. Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); People v. Laverne, supra.

 Further, it is well established that as long as a defendant who abridges a plaintiff's constitutional right acts pursuant to a state or local law which empowers him to commit the wrongful act, an action under the Federal Civil Rights Statute is established. Monroe v. Pape, supra; see United States v. Williams, 341 U.S. 70, 71 S. Ct. 581, 95 L. Ed. 758 (1951); United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941).

 Section 1983 of Title 42 of the United States Code, in pertinent part, provides that "Every person who, under color of * * * [state law] * * * subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." As indicated previously, it is not disputed that the entries into plaintiffs' premises were pursuant to local authority.

 Defendants urge that the uninvited entrances into plaintiffs' premises and the warrantless searches and seizures conducted thereon did no violence to plaintiffs' constitutional rights and therefore are not actionable. In support of this contention, they argue that their conduct was constitutionally permissible at the time these acts were committed.

 The Court in People v. Laverne, supra, however, came to an opposite conclusion after specifically finding that the entries were unconsented to and by force of public authority. Even assuming, as defendants suggest, that one of plaintiffs' agents allowed three of the defendants to enter after being informed as to who they were, this is merely a submission to the power of public authority and not a consent. Johnson v. United States, 333 U.S. 10, 13, 68 S. Ct. 367, 92 L. Ed. 436 (1948); People v. Laverne, supra, 251 N.Y.S. 2d at 454, 200 N.E. 2d 441.

 Predicated on these findings, the State court went on to note that "entry into private premises by a public officer without a search warrant against the resistance of the occupant and in pursuance of the authority of law for the purpose of eliminating a hazard immediately dangerous to health and public safety is constitutionally valid if the purpose be summary or other administrative correction or as a foundation for civil judicial proceedings." People v. Laverne, supra, 251 N.Y.S. 2d at 454, 200 N.E. 2d at 442. In support of this proposition the court cited Frank v. Maryland, 359 U.S. 360, 79 S. Ct. 804, 3 L. Ed. 2d 877 (1959), but went on to note that the case before it was distinguishable from Frank, supra, since the instant warrantless searches were conducted specifically to provide a basis for criminal prosecution, and not in order to lead to summary administrative action or civil proceedings for the purpose of protecting public health. People v. Laverne, supra, 251 N.Y.S. 2d at 455, 200 N.E. 2d 441.

 The court, of course, reversed the convictions, holding that "searches by * * * public officers of defendant's home without warrants for the purpose of criminal prosecutions * * * [violated] his constitutional rights." People v. Laverne, supra, 251 N.Y.S. 2d at 455, 200 N.E. 2d at 443.

 The following year the Appellate Division, relying on the above-quoted holding of the Court of Appeals, reversed the two contempt orders issued against the plaintiffs and held that just as the Village could not use the unlawfully obtained evidence as the basis for criminal prosecution, it could not make use of it in contempt proceedings, which were quasi-criminal in nature and could have resulted in imprisonment of the plaintiffs. Incorporated Village of Laurel Hollow v. Laverne, supra. The Appellate Division also noted that Frank v. Maryland, supra, was distinguishable and not controlling.

 In the face of the above-cited authority, defendants insist that they did not deprive plaintiffs of their constitutionally protected right to be free from unlawful searches and seizures. I find defendants' position untenable. Without considering whether the precise standards for either res judicata, stare decisis or collateral estoppel are applicable herein, I merely hold that as a matter of law, based upon the undisputed facts as I have found them to be, defendants' conduct was not constitutionally permitted at the time the entries were made. Frank v. Maryland, supra, and Ohio ex rel. Eaton v. Price, 364 U.S. 263, 80 S. Ct. 1463, 4 L. Ed. 2d 1708 (1960), are not authority to the contrary for the reasons set forth by the Court of Appeals in People v. Laverne, supra. Defendants' conduct amounted to an ...


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