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BELL v. NEW YORK

January 28, 1981

David BELL, Plaintiff,
v.
The STATE OF NEW YORK et al., Defendants



The opinion of the court was delivered by: LOWE

MEMORANDUM OPINION AND ORDER

Plaintiff, pro se, brings this action for violation of his constitutional rights under the Fourteenth Amendment to the United States Constitution. He requests a judgment pursuant to 28 U.S.C. § 2201 declaring his due process rights in the context of a 1975-76 state criminal prosecution that led to his two-count misdemeanor conviction. The Court rules that plaintiff's claims present no substantial constitutional question and therefore dismisses the complaint for lack of subject matter jurisdiction. *fn1"

 INTRODUCTION

 For the purpose of this discussion, the factual allegations in plaintiff's complaint are assumed to be true. Plaintiff asserts:

 During the time period relevant to this action, plaintiff was general manager of a motel in Sullivan County, New York. He also was responsible for managing the bar located on the premises, for which he owned a license to sell alcoholic beverages. An assistant manager the bartender handled the day-to-day affairs of the bar.

 At 3:30 A.M., on July 4, 1974, *fn2" plaintiff was alerted by an employee that there was "trouble at the bar." (Complaint, para 6) Plaintiff went to the bar, where he came upon two strangers questioning the bar manager about alleged criminal activities. Plaintiff demanded identification from the two individuals. They reportedly were unable or unwilling to produce any form of I.D., whereupon plaintiff drew out a pistol he was carrying, *fn3" ordered all patrons and the two interrogators out of the bar, and locked the door behind them.

 Some unknown person or object shattered the locked glass door leading into the bar. That event caused the plaintiff to fire his pistol "as a warning to any possible intruder," (Complaint, para 7), and then exit by a rear door to call the police. A short time later, uniformed police arrived. Instead of investigating the broken door, however, they arrested plaintiff when he approached them and charged him with "reckless endangerment" and "resisting arrest." He was taken into custody and then arraigned on the charges.

 Several weeks later, a Grand Jury indicted plaintiff for reckless endangerment in the first degree and resisting arrest. *fn4" Plaintiff was tried in March, 1976 *fn5" and convicted by a jury of reckless endangerment in the second degree and resisting arrest. He was sentenced to one year probation and fined $ 1500. That conviction was affirmed by the Appellate Division of the New York State Supreme Court. *fn6" Leave to appeal was denied by the New York State Court of Appeals. *fn7"

 Plaintiff maintains that his arrest, incarceration, indictment, trial and sentence were improper because he had no notice or means of knowing that the strangers in his bar were undercover police and because he reasonably believed, at the time, that his person and property were in danger. The specific objections he raises that are relevant to the case *fn8" include:

 
1. The state trial court, over his objection, permitted the introduction by police witnesses of the conversations between the police and the bar manager that erroneously led the jury to associate plaintiff with the alleged crimes of the bartender (Complaint, para 12);
 
2. The trial court denied plaintiff's offer of extrinsic proof of a robbery and assault at the bar, which involved an assailant impersonating a police officer a few months before the July incident. That evidence was relevant, according to plaintiff, to his defenses of justification and lack of criminal intent (Complaint, para 13);
 
3. As a result, plaintiff: (a) was deprived of his right to a fair trial and due process of law; (b) suffered public humiliation and distress of body and mind; (c) suffered the loss of the $ 1500 fine; and (d) suffered the revocation of his license. *fn9" (Complaint, para 17)

 DISCUSSION OF LAW

 The statutory provision invoked to establish federal district court jurisdiction over this action is 28 U.S.C. § 1343(3). Section ...


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