Appeal from an order granting summary judgment, pursuant to Fed.R.Civ.P. 56, entered in the United States District Court for the Eastern District of New York, by Walter Bruchhausen, Judge.
Kaufman, Chief Judge, Smith and Feinberg, Circuit Judges.
The writing of a book about one's life necessarily compels the author to avoid future adventures while recording and reflecting upon the old. When published, however, such a book may precipitate unanticipated adventures never contemplated or sought, as Albert A. Seedman discovered to his dismay.
While serving as Chief of Detectives of the New York City Police Department, Seedman assumed command of the investigation into a widely publicized 1971 sniper attack on the Soviet Mission to the United Nations. At his direction, a youth named Isaac Jaroslawicz was brought to the 19th Precinct for questioning. No state or local charges were lodged against the young man, and Seedman had no reason to anticipate any further direct or indirect dealing or contact with him. But the publication in 1974 of Seedman's autobiographical opus Chief !,*fn1 brought the youth back into Seedman's life. The book, described on its cover as "the riveting true story of a hardnosed New York detective who solved some of the most daring crimes of our time," became an instant bestseller. One interested reader was Isaac Jaroslawicz, who learned what he had long suspected: Seedman had been "under abnormal pressure to get results fast", Id. at 320, and seemed to indicate that Jaroslawicz was used to get "off the hot seat in the sniper case." Id. at 323.
Because of this, Isaac (and his father, Joseph Jaroslawicz) instituted this action seeking $3 million in actual and punitive damages for violations of his civil rights, 42 U.S.C. §§ 1983, 1985, 1986. Judge Bruchhausen granted Seedman's motion for summary judgment and dismissed the complaint. Because there are genuine issues of material fact - created in large part by the disclosures in Seedman's book - we must reverse. In doing so we make no determination on the merits of this litigation or the ultimate interpretations to be placed on Seedman's words.
The facts underlying this appeal must be traversed in some detail to place the legal question in proper perspective. During the evening of October 20, 1971 four bullets shattered a bedroom window of the Soviet Mission to the United Nations on East 67th Street in Manhattan. Although the four children who had been sleeping in the room fortunately escaped unharmed, Soviet officials were understandably outraged. They promptly filed a complaint with the New York City Police Department and angrily denounced the United States for failing to curb the "Zionist hooligans" they felt were responsible. The United States Secretary of State, William Rogers, called the Soviet Ambassador in Washington within 75 minutes of the attack to apologize. And, late that night the United States Ambassador in Moscow was summoned to the Foreign Ministry and berated for the incident. The discussion at the United Nations the next morning was vituperative, and President Nixon's scheduled visit to Russia seemed in jeopardy.
Seedman was placed in charge of the investigation. His book concedes that "under the circumstances, Seedman was desperate for a quick face-saving break." Id. at 319. The police quickly discovered a.243 caliber Remington rifle at the bottom of an airshaft in the building across from the Soviet Mission. The serial number had been left on the weapon, and it was traced to a retail gun dealer on Long Island doing business as Charles Greenblatt, Inc. Seedman believed that a member of the Jewish Defense League ("JDL") might have been responsible for the shots. This group had been highly critical of Soviet treatment of Jews and had threatened violence against Russian diplomats in the United States if Soviet policy continued. Accordingly, Seedman directed some of his detectives to exhibit a photo album of JDL members to the employees of the gunshop, in the hope that they could identify the picture of the purchaser of the rifle from this array. Seedman apparently did not attend this photo-identification session, and he did not offer any affidavits from those detectives who were present in support of his motion for summary judgment. In his own affidavit he states, nevertheless, that two employees of the Greenblatt firm, Sol Jacobson (the vice president) and Kenneth Aull (a gunsmith who adjusted the telescopic sight on the rifle) selected two individuals from the photos as being the "possible purchaser" of the rifle. (Nor were any affidavits from Jacobson or Aull proffered in support of Seedman's motion for summary judgment.) One of the people selected, according to Seedman, was Isaac Jaroslawicz. The other was a JDL member named Lawrence Fine. There had been no eyewitnesses to the sniper attack, but Seedman apparently hoped that the gun purchaser could lead to the sniper (if, indeed, he was not the same person). Thus, Seedman ordered Jaroslawicz and Fine to be brought to the 19th Precinct for questioning.
Seedman suspected that the perpetrator of the attack might return to the scene of the crime, and he distributed copies of Jaroslawicz's photograph to patrolmen near the Soviet Mission. At about 5:30 p. m. on October 21, 1971, Jaroslawicz was spotted near the Mission. In an affidavit filed in opposition to Seedman's motion for summary judgment, Jaroslawicz claims that he was surrounded by five or six police officers, grabbed by both arms, and dragged toward the station house. He contends that his shouts and resistance proved futile, and that the police officers refused to answer his repeated requests to know whether he was under arrest and what the charge was. When the policemen's failure to respond continued at the 19th Precinct, Jaroslawicz contends, he sought to call his lawyer or to leave the station house. The appellant states that his requests were refused and that he was physically restrained from departing. The affidavit of Harvey Michelman, an attorney who arrived at the Precinct after hearing independently that some JDL members had been arrested, confirms this account. Although Seedman disagrees with this version of the facts, he conceded in his brief and at oral argument that the appellant's presence at the police station may have been involuntary.
While at the 19th Precinct, Jaroslawicz refused to answer the questions put to him by the police. At one point he was placed in a line-up, apparently with Fine and several police officers. The appellant, in his affidavit, insists that the line-up was unduly suggestive. Not only had Aull and Jacobson (who had been brought to the station house) been shown his photograph a few hours before, but the other participants in the line-up were all "much older" than he, Jaroslawicz claims. In any event, Seedman concedes that Jacobson selected one of the police officers as the purchaser of the rifle. Seedman was "dismayed," according to his book, and asked Jacobson, "What would you say right now if I told you your wife was in that line-up?" The gun salesman, who admitted his eyesight was poor, "looked from one man to the next, then went painstakingly back down the line. 'I don't think she's up there,' he said finally." Id. at 321. Aull had no such difficulty, according to Seedman, and selected Jaroslawicz without hesitation. Seedman did not, however, submit an affidavit from Aull attesting to this.
In his book (not in his affidavit) Seedman indicates that his instincts "made [him] uneasy" about treating the appellant as the perpetrator. Id. at 320. Jaroslawicz, Seedman's book states, simply did not look or act as though he was guilty of attempted murder. Id. Moreover, even after the line-up,
'. . . we had to decide what to do with Jaroslowitz [sic],' says Seedman. 'He had been identified as the purchaser of a rifle, but not as a sniper. We had no reason to accuse him of firing the shots and no evidence that he was part of a conspiracy that culminated in the shooting. He had not been discovered carrying a concealed weapon. In fact, he had done nothing to violate local or state law.'
Id. at 321. Seedman was undaunted by this. The purchaser of the Remington rifle had used a false name and a forged draft card in identifying himself at the time of the acquisition. Although not in contravention of state or local law, this constituted a federal crime. 18 U.S.C. §§ 922(a)(6); 924(a). Accordingly, Seedman summoned agents of the Division of Alcohol, Tobacco, and Firearms ...