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JOHNSTON v. NBC

March 21, 1973

Wayne JOHNSTON, Plaintiff,
v.
NATIONAL BROADCASTING COMPANY, INC., et al., Defendants


Bartels, District Judge.


The opinion of the court was delivered by: BARTELS

BARTELS, District Judge.

Defendants National Broadcasting Company, Inc. (NBC), Marshall Wellborn and David Durk have moved this court, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for an order dismissing the complaint for failure to state a claim upon which relief can be granted.

 Among unnecessarily prolific and irrelevant allegations, two causes of action emerge: the first, predicated upon 42 U.S.C. § 1983 *fn1" and 42 U.S.C. § 1985, *fn2" alleging that plaintiff Johnston was entrapped by defendants NBC, Silverman, Durk and others into procuring narcotics, for which he was subsequently arrested and now faces various criminal charges in the New York State courts; the second, predicated upon 42 U.S.C. § 1985 and § 1986, *fn3" alleging that defendants NBC and Wellborn, its lawyer, refused to permit Silverman, an employee of NBC, to talk with Johnston's lawyer, Michael G. Dowd, Esq., about the pending criminal case. Jurisdiction is grounded upon 28 U.S.C. § 1343(3). *fn4"

 Under the first cause of action plaintiff asserts the following as facts:

 Defendant Silverman planned to do a television news program for defendant NBC about corruption in the office of the Queens District Attorney, and enlisted the aid of Police Sergeant David Durk of the New York City Police Department, and an undercover policeman known as "Johnny Russo." Their plan was to entrap plaintiff Johnston and one George Freed, a Queens real estate investor, not a party to this action, into violating the law, with the intent thereafter, of compelling these entrapped persons under threat of prosecution for such criminal activity, to offer bribes to members of the office of Queens County District Attorney Thomas Mackell.

 Russo and Silverman arranged to be introduced to Johnston as high-ranking members of the Jewish Defense League. After unsuccessfully attempting to persuade Johnston to obtain weapons and high explosives for them, they attempted to induce plaintiff into becoming a so-called "hit man" and to agree to conspire to murder unnamed individuals. Failing again, they finally persuaded plaintiff to assist them in obtaining narcotic drugs predicated upon lengthy entreaties premised upon his friendship with Freed. Johnston "made an effort to locate persons who allegedly could help defendant Silverman and 'Russo' in their quest for narcotic drugs." Thereafter Silverman and Russo were "successful in contacting someone who could supply narcotic drugs to them," and finally obtained narcotic drugs. Shortly thereafter defendants Durk, Silverman and Russo "kidnapped" Freed and, predicated upon threats of prosecution and imprisonment, induced him to offer a bribe to Milton Drucker, Executive Assistant to Thomas J. Mackell, the Queens District Attorney. Wired for sound, Freed offered something of value to Drucker "in return for any information concerning criminal activity by the plaintiff." Drucker refused the bribe and Freed was arrested for attempted bribery and concealment of an eavesdropping device. Immediately thereafter plaintiff Johnston was arrested by defendant Durk and Russo and charged with criminal possession and sale of dangerous drugs. Defendant Silverman's efforts in this plot had the encouragement, authority and consent of defendant NBC.

 Under the second cause of action plaintiff alleges the following:

 After Johnston's arrest, his lawyer Dowd attempted to arrange an interview with Silverman, who told Dowd that he was willing to speak with him, that he regretted what had happened to plaintiff, that the entire matter had gotten out of hand and that he would attempt to obtain permission from defendant Wellborn, an attorney employed by NBC. Thereafter Silverman advised Dowd that he had been prohibited from speaking to Dowd by defendant Wellborn and other unnamed executives of defendant NBC, "under fear of losing his job with NBC."

 Johnston seeks ten million dollars in damages on each cause of action and an injunction on the second cause of action restraining NBC and Wellborn from preventing Silverman from discussing Johnston's criminal case with Dowd.

 I

 Entrapment

 Johnston contends that upon the facts alleged in his first cause of action, all defendants (except Wellborn, who is not named therein) are liable to him under 42 U.S.C. §§ 1983 and 1985 for entrapping him to commit a crime. To succeed under Section 1983 plaintiff must establish "(1) that he has been deprived of a right, privilege, or immunity secured by the Constitution and laws of the United States; (2) that the defendants subjected plaintiff to this deprivation or '[caused]' him to be so subjected; and (3) that the defendants acted 'under color of any statute, ordinance, regulation, custom, or usage, of any State . . .'" Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969). According to the allegations of the complaint, which are admitted upon this motion, there has been a concert of action between private citizens and New York City Police officers sufficient to constitute the requisite State action. See, e.g., Fulton v. Emerson Electric Co., 420 F.2d 527 (5th Cir. 1969), cert. denied, 398 U.S. 903, 90 S. Ct. 1689, 26 L. Ed. 2d 61 (1970), and Robeson v. Fanelli, 94 F. Supp. 62 (S.D.N.Y. 1950). Defendants contend, however, that entrapping a person into committing a criminal act is no ground for relief under the Federal Civil Rights Act, since freedom from entrapment is not a right, privilege or immunity secured by the Constitution and laws of the United States. Plaintiff contests this assertion, maintaining that such a constitutional right does exist upon the proper analysis of the due process clause in the Fifth and Fourteenth Amendments, citing authorities (Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1955)), which in fact relate only to the defense of entrapment. Plaintiff also relies upon the Fourth Amendment, again citing authorities (Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)) involving probable cause for arrest. We find the authorities cited inapposite to the point at issue. In fact, we can find no decision justifying the conversion of entrapment into an independent federal cause of action *fn5" cognizable under Section 1983 or Section 1985. At least three pertinent federal decisions upon the subject have all rejected the contention that entrapment provides a ground for any relief under the Federal Civil Rights Act. For example, in Jones v. Bombeck, 375 F.2d 737 (3d Cir. 1967), plaintiff accused defendants of conspiracy to entrap or induce him to commit a burglary. In denying recovery the court said:

 
"To state a cause of action under the Civil Rights Act it is necessary that there be an allegation that plaintiff was denied or that there was a conspiracy to deny him a constitutional right, privilege or immunity. See Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Here, at best, all that appellant has alleged is entrapment. While entrapment may be a proper defense in a criminal action, a police officer's participation in such activity does not constitute a constitutional violation." 375 F.2d at 738.

 Likewise, both Johnson v. Hackett, 284 F. Supp. 933 (E.D. Pa. 1968), and Mack v. Lewis, 298 F. Supp. 1351 (S.D. Ga. 1969), reject a constitutional claim of entrapment. 42 U.S.C. § 1983 by its terms protects only "rights, privileges, or immunities secured by the Constitution and laws." It does not protect against deprivation of rights granted by state laws. Egan v. City of Aurora, Ill., 365 U.S. 514, 81 S. Ct. 684, 5 L. Ed. 2d 741 (1961); Sigler v. ...


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