Before Friendly, Chief Judge, Lumbard, Circuit Judge, and Thomsen,*fn* District Judge.
Jerome Rosenberg, the successful plaintiff in this civil rights action under 42 U.S.C. § 1983 in the District Court for the Eastern District of New York, had been convicted, upon the testimony of several eyewitnesses, of the felony murder of two police officers while he was engaged in an armed robbery of the Borough Park Tobacco Company in Brooklyn. After the Governor had commuted his death sentence to life imprisonment, his conviction and that of a co-defendant were affirmed by the New York Court of Appeals, People v. Portelli and Rosenberg, 15 N.Y.2d 235, 257 N.Y.S.2d 931, 205 N.E.2d 857 (1965).*fn1 One of the contentions on that appeal was that the defendants' constitutional rights had been violated by denial of their motion for a change of venue because of prejudicial publicity, and the Court of Appeals amended its remittitur to show that it had considered this argument and had held that "no constitutional rights of appellants had been violated." 16 N.Y.2d 537, 260 N.Y.S.2d 649, 208 N.E.2d 458 (1965). The Supreme Court denied certiorari, Rosenberg v. New York, 382 U.S. 1009, 86 S. Ct. 612, 15 L. Ed. 2d 524 (1966). A petition for federal habeas corpus by Rosenberg on the ground that the pre-trial publicity had denied him a fair trial was denied by Judge Bartels, without an evidentiary hearing, in an unreported opinion, and we affirmed. United States ex rel. Rosenberg v. Mancusi, 445 F.2d 613 (2 Cir. 1971), cert. denied, 405 U.S. 956, 92 S. Ct. 1186, 31 L. Ed. 2d 234 (1972).
On April 15, 1968,*fn1a Rosenberg brought this action under section 1983 against three defendants. The only one who remained in the case after the grant of dismissal motions was Raymond V. Martin, a retired Assistant Chief Inspector of Police. Rosenberg's complaint alleged that Martin had "caused him to be convicted, by illegal means in lying and inflaming the public about [him] through various News Media," and had deliberately fed the news media false information "to slander and influence the courts, people and general public against [him]." Martin served an answer denying these allegations and pleading the statute of limitations as an affirmative defense. Plaintiff, who has been appearing pro se throughout, countered, on December 1, 1969 with a "cross-defense" arguing that Martin's defense was "void and defeated"; he annexed a "supplement pleading" wherein he moved that "this pleading be amended" under F.R.Civ.P. 15(c) in various respects, including the statement of a claim of assault set forth in the margin.*fn2 Without having expressly acted on the motion to amend, the court, on May 11, 1970, struck the defense of the statute of limitations, citing Swan v. Board of Higher Education, 319 F.2d 56, 59 (2 Cir. 1963), which had held the six-year provision of former N.Y. Civil Practice Act § 48(2) to be applicable to actions under 42 U.S.C. § 1983. At the trial the court allowed plaintiff to present testimony on both claims and instructed the jury that he could recover on either.
The crime occurred on May 18, 1962. As would be expected in a case where two officers had been killed while discharging their duty, the full force of the police was brought to bear on finding the offenders. It is undisputed that there was extensive news coverage of the murder, the police investigation, and the apprehension of the suspected killers, and that the police were largely responsible for this. Rosenberg was unable to establish, however, that anything like all of the publicity was attributable to Martin. The first newspaper received in evidence was an issue of The New York Daily News for May 22, 1962, reporting Portelli's arrest in Chicago on May 21. A reporter from the News identified portions of the article as having emanated from Martin. These included statements that Rosenberg was the man who had accompanied Portelli into the Borough Park Tobacco Company and had rushed out, over the bodies of the two detectives, after the murder; that both Portelli and Rosenberg had been identified by a half dozen witnesses from their rogues' gallery photos; and that Portelli, Rosenberg and Dellernia were members of a top hoodlum element and formed part of a stick-up mob in Brooklyn. In a set of excerpts from the News of May 23, after Dellernia had surrendered, Martin was referred to as saying that Rosenberg reportedly had been seen in Manhattan, dressed in women's clothing; that the police had the gun used in the killing and bullets to match; and that the police had positive identification of the three men in ten other Brooklyn holdups.
Late in the evening of May 23 Rosenberg turned himself in at the office of the News. He testified that Martin and other officers arrested him there and that Martin stated before the television cameras covering the scene that he was the killer and that he had a criminal record. Rosenberg was then removed to the 66th Precinct station house in Brooklyn. He testified that he was taken out of the police car a half block away from the station, where television cameras and newsmen were lined up on the street; that, as he was dragged toward the cameras, Martin said "He is the killer, and he is going to burn"; and that he later saw video tapes of the scene, of Martin's remark, and of the crowd's angry response.*fn3 Photographs of the booking of the three men, published in unidentified newspapers, were also received in evidence.
As to the assault claim, Rosenberg testified that at the police station he was brought into a small interrogation room, where Martin and a number of other officers began questioning him. When he refused to answer questions, he testified, "Martin started kicking me," though "just softly." Later, "He grabbed my throat and he started choking me" - though this was "slight" and "did no real physical damage" - and told him that "you're going to suffer as best we could make you suffer." Rosenberg claimed that after a few hours of unsuccessful interrogation, Martin "placed his hand on my ear, like a suction-cup" and then quickly pulled it away; that his ear started to bleed; and that after a week he could no longer hear out of it. Martin denied having taken any such actions, and there was no evidence that Rosenberg had ever brought the alleged assault to anyone's attention.
The judge instructed that if plaintiff proved either that he was physically abused and maltreated while in custody or that he "was the object of prejudicial publicity that went beyond the police needs of the situation" he was entitled to recover damages, provided that Martin was acting under color of state law, custom or usage. The judge fleshed out the prejudicial publicity claim by charging that while the police were entitled to publicize the fact of a crime and "such information as is reasonably related to the task of locating the suspect and taking him securely into custody," it was for the jury to say:
on all the evidence you have heard whether or not you are satisfied that the publications that occurred between the date of the crime and the date of the plaintiff's trial chargeable to the defendant Martin himself, exceeded the limits of proper police procedure and was prejudicial to the plaintiff in exposing him to defamation, misrepresentation and public obloquy that might have affected his right to a fair trial and that subjected him to personal humiliation and apprehension or bodily harm.
The jury returned a general verdict of $7,500.
It is elementary that, in order to recover damages in an action under 42 U.S.C. § 1983 in a case like this, the plaintiff must show a deprivation of constitutional rights. Rosenberg's claims with respect to the publicity preceding his arrest, the televised recording, and the publication of photographs can be read as invoking two constitutionally protected rights - the recently evolved and not yet clearly defined right to privacy, see Griswold v. Connecticut, 381 U.S. 479, 485, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), and the Sixth and Fourteenth Amendment right to a fair trial before an impartial jury, see Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966).*fn4
Little need be said with respect to the first. "Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value of freedom of speech and of press." Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S. Ct. 534, 542, 17 L. Ed. 2d 456 (1967). It is indisputable that the interest in privacy of a fugitive suspected of serious crime must yield to the public interest in his apprehension and the consequent publication of whatever may reasonably be deemed helpful to that end. However, so far as concerns the constitutional right of privacy, as distinguished from the right to a fair trial, the standard of permissible invasion is not to be so narrowly drawn. The constitutional right to privacy is not to be equated with the statutory right accorded by New York, Civil Rights Law §§ 50-51, McKinney's Consol.Laws, c. 6, and other states. Thus far only the most intimate phases of personal life have been held to be thus constitutionally protected. See, in addition to Griswold v. Connecticut, supra, Eisenstadt v. Baird, 405 U.S. 438, 453-454, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972); and Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). This is not to say that no conduct of police officers toward a suspected criminal, even a murderer, may ever constitute a violation of a constitutional right to privacy. If Martin had caused the publication of a photograph of Rosenberg in the nude, compare York v. Story, 324 F.2d 450 (9 Cir. 1963), cert. denied, 376 U.S. 939, 84 S. Ct. 794, 11 L. Ed. 2d 659 (1964) (forcing female complainant to be photographed in indecent postures and circulating the pictures among the police), we would have a quite different case. But the very court that decided York v. Story has declined to extend it to action of the police in causing publication of charges of criminal conduct, even when the police had concluded that the plaintiff had not in fact committed a crime. Baker v. Howard, 419 F.2d 376 (9 Cir. 1969). See also Mattheis v. Hoyt, 136 F. Supp. 119, 124 (W.D.Mich. 1955). Similarly, the facts presented here fail to state a cause of action under section 1983 for violation of Rosenberg's constitutionally protected right of privacy. Cf. Felber v. Foote, 321 F. Supp. 85, 88-89 (D.Conn.1970) (three-judge court); Travers v. Paton, 261 F. Supp. 110 (D.Conn.1966).
It would likewise seem plain that in order to recover damages for the deprivation of the right to a fair trial, a plaintiff must show not merely that the police engaged in conduct which "exceeded the limits of proper police procedure" and "might have affected his right to a fair trial," as the judge instructed, but that the improper conduct in fact had that result. Here Rosenberg meets the obstacle that this very issue was raised before the New York Court of Appeals on his appeal from his conviction and, as appears from its remittitur, was decided against him. Under modern notions with respect to issue preclusion, it is of no moment that the adverse party in the criminal case was the State rather than the police officer who is the defendant here. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971); Zdanok v. Glidden Co., 327 F.2d 944, 954-956 (2 Cir.), cert. denied, 377 U.S. 934, 84 S. Ct. 1338, 12 L. Ed. 2d 298 (1964); Bernhard v. Bank of America, 19 Cal.2d 807, 811-813, 122 P.2d 892, 894-895 (1942) (Traynor, J.); B. R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967); Ritchie v. Landau, 475 F.2d 151, 155 (2 Cir. 1973). It might be contended against giving the New York judgment preclusive effect that while a state judgment between the same parties on the same claim will operate as res judicata in a federal civil rights action, as we held in Lackawanna Police Benevolent Ass'n v. Balen, 446 F.2d 52 (2 Cir. 1971),*fn5 a state criminal judgment should have no more effect by way of issue preclusion in a federal civil rights action than it would in federal habeas, as Mr. Justice Douglas argued, although unsuccessfully, with respect even to a federal criminal judgment in dissenting from the denial of certiorari in Lauchli v. United States, 405 U.S. 965, 92 S. Ct. 1182, 31 L. Ed. 2d 241 (1972). But in this case Martin can successfully respond with the decision in Rosenberg's federal habeas proceeding that as a result of the lapse of time between the improper publicity in May 1962 and the trial in January 1963, and the effective voir dire of the jury panel,*fn6 he received a fair trial. It has thus been conclusively determined, not only by a state but by a federal court, that even though the prearrest publicity went considerably beyond what was necessary and Martin's alleged statement before the television cameras was thoroughly reprehensible, this did not in fact deprive Rosenberg of his constitutionally guaranteed right to a fair trial. We see no reason for according him a third opportunity to litigate in this action an issue that the highest court of New York and this court have both decided against him.
We turn therefore to the claim of damages for assault which Rosenberg sought to add on December 1, 1969. We assume that brutal police conduct violates a right guaranteed by the due process clause of the Fourteenth Amendment. See Collum v. Butler, 421 F.2d 1257 (7 Cir. 1970); Jenkins v. Averett, 424 F.2d 1228 (4 Cir. 1970). But we hold that the court ...