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Fine v. City of New York

decided: December 31, 1975.

ROBERT J. FINE, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, FRANK KLEIN, MARVYN KORNBERG, ESQ., ALBERT GAUDELLI, ESQ. AND HERBERT KAHN, ESQ., DEFENDANTS-APPELLEES. PTL. ANTHONY SALADINO, ESTATE OF ROBERT L. RADTKE, DET. MICHAEL SASSAMAN, PTL. "JOHN" STANLEY, PTL. "JOHN" DWYER, PTL. "JOHN" FISCHER, SGT. "JOHN" MURRAY, DAVID FAULKNER, MRS. DOLORES FAULKNER, DEFENDANTS



Appeal from an order of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, dismissing, for failure to state a claim, complaints against defendants the City of New York, Kornberg, Klein, Kahn and Gaudelli seeking damages occasioned by, inter alia, illegal searches and seizures. Affirmed in part, reversed and remanded in part.

Kaufman, Chief Judge, Smith and Meskill, Circuit Judges. Smith, Circuit Judge, concurring and dissenting.

Author: Kaufman

KAUFMAN, Chief Judge:

In the last half-century, discussions of the effect of the exclusionary rule in criminal prosecutions have repeatedly quoted Cardozo's dictum, "the criminal is to go free because the constable has blundered." People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926). In this civil action for damages we are called upon to decide who may be held to pay for such blunders. Among the questions presented are whether a municipality may be held vicariously liable for the wrongful acts of its employees, either under the Civil Rights Act, 42 U.S.C. § 1981 et seq., or on a claim founded directly upon the Fourteenth Amendment. Also to be considered are the more familiar parameters to be observed in imposing § 1983 liability upon public prosecutors and private attorneys for alleged violations of federal constitutional rights.

I.

A brief summary of the facts alleged in Fine's complaint in the court below will provide a fuller understanding of the controversy. On March 5, 1972, sixteen-year-old David Faulkner was arrested in a Queens, N.Y. bar for attempting to sell a gun. He told the police that the weapon belonged to Robert Fine, a taxicab driver with whom he claimed to have been living in a homosexual relationship. Faulkner offered to show the officers Fine's apartment and joined several of them as they conducted a warrantless entry and search of those premises. On the following day, March 6, Faulkner, accompanied by his attorney Marvyn Kornberg and Detectives Robert Radtke and Michael Sassaman, returned to the Fine apartment. Initially, they approached the building superintendent seeking entrance to the apartment. Fine claims that Det. Radtke stated to the superintendent "We are the police" and Kornberg, though present, failed to identify himself as an attorney. The superintendent, however, was either unwilling or unable to grant them access. Undaunted, young Faulkner climbed a fire escape at the rear of the building, entered through a window, and admitted the detectives and Kornberg to the apartment, where they remained for more than one hour.*fn1

In the course of their visits the officers seized gambling records, bullets, and photographs of nude males (including one of Faulkner). Fine also alleged that the police seized $3800 in cash, a valuable coin collection, 20,000 Colombian pesos (worth, at the time, roughly $1000), a phonograph, jewelry, safe deposit keys, and other items of value in the apartment. In addition, he says, they destroyed his furniture, impounded his two German Shepherds, and ripped apart his clothing.

Fine was arrested, while driving his taxicab, by officers of the New York City Police Department on March 7, 1972. He was charged in Queens County Supreme Court with sodomy, endangering the welfare of a child, promoting gambling, possession of gambling records in the second degree, and possession of weapons as a misdemeanor. Assistant District Attorney Herbert Kahn presented evidence of these offenses to a grand jury, including the items admittedly seized from Fine's apartment.

Fine moved in the Queens County criminal proceedings to suppress the evidence, seized during his absence from the apartment and without benefit of either arrest or search warrants. After a suppression hearing, State Supreme Court Justice Brennan granted the motion on January 17, 1974, and ordered suppression of all items taken from the apartment. Each of the charges pending against Fine was subsequently dismissed.

In the course of the suppression hearing Fine made several charges of corruption. Among them were his claims that the police had broken into his home and stolen or destroyed valuable property. He also stated that money had been extorted from him (by Frank Klein, his own attorney, and Kornberg, among others) to secure the return of his impounded taxicab and to induce Faulkner's mother to agree to a dismissal of the criminal charges against him. Assistant District Attorney Albert Gaudelli, assigned to investigate these charges, was presenting evidence to the grand jury relating to them when superseded by Special State Prosecutor Maurice Nadjari's probe into the matter.

Eventually, Fine commenced the instant action in the Southern District of New York seeking more than $5 million in damages pursuant to the Civil Rights Act, 42 U.S.C. § 1981 et seq., and the Fourteenth Amendment.*fn2 Named as defendants, though not parties to this appeal, were David Faulkner, his mother Dolores, and the police officers who had allegedly entered and rampaged through Fine's apartment.*fn3 Fine's complaint also named Assistant District Attorneys Kahn and Gaudelli, the City of New York, and attorneys Klein and Kornberg.

On November 22, 1974, Judge Brieant granted motions to dismiss the complaint made pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim against defendants Kahn, Gaudelli, Klein and Kornberg. He also dismissed, sua sponte, the complaint against the City of New York. From these dismissals Fine appeals.*fn4

II.

Section 1983 requires the fulfillment of certain conditions before a ...


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