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FORD v. BURKE

January 4, 1982;

Ralph FORD, Petitioner,
v.
Manion, Alden, and John BURKE, Jr., Respondents



The opinion of the court was delivered by: MUNSON

MEMORANDUM-DECISION

Plaintiff Ralph Ford has brought this action under the guise of 42 U.S.C. § 1983, requesting that this Court determine the constitutional legitimacy of his arrest on September 2, 1977. Despite some reservation occasioned by this Court's prior experiences with Mr. Ford's constitutional challenges, an Order was issued on October 12, 1979 allowing the plaintiff to proceed in forma pauperis, which then resulted in a hearing before this Court on the 2nd and 3rd of December, 1980, Albany, New York.

 Some procedural and factual background is necessary before the Court can address the law.

 The plaintiff, Ralph Ford, previously brought a habeas corpus petition which was denied by this Court. Ford v. Jones, 78-CV-631 (N.D.N.Y. June 15, 1979). However, the Second Circuit ordered on March 10, 1980, that this Court review petitioner's claim of inadequacy of counsel. A hearing addressing those contentions resulted in a decision by this Court that Mr. Ford's Sixth Amendment rights had not been violated, leaving the guilty plea unassailed on those grounds. Ford v. Jones, 78-CV-631 (N.D.N.Y. July 27, 1981).

 Previously, the state court had denied habeas review of Mr. Ford's allegation regarding ineffective assistance of counsel. Mr. Ford had also unsuccessfully sought review by writ of corum nobis in state court. Mr. Ford's earlier attempt to litigate this search and seizure claim was dismissed in state court. (Tr. p. 130).

 Mr. Ford now focuses on the legality of his arrest as the basis for the present action. That arrest took place on September 2, 1977 in the city of Albany, about a mile from the robbery site. At that time he was charged with criminal possession of both a weapon and stolen property, and then later that evening he was charged with robbery and grand larceny stemming from activities taking place in the village of Menands at the actual robbery site. Arresting officers were Albany police detectives Manion and Burke. The relief requested does in no way suggest an alteration in the state court's determination of guilt, instead Mr. Ford seeks money damages to compensate any detriment suffered as a result of that arrest. The procedural vehicle for such an inquiry is not by way of habeas corpus petition, but rather by way of 42 U.S.C. § 1983.

 I.

 The parties' contentions regarding the applicable statute of limitations may be summarily dealt with in light of the Second Circuit's recent decision of Pauk v. Bd. of Trustees of the City Univ. of N.Y., 654 F.2d 856 (2d Cir. 1981). That opinion reviews previously applicable statutory limitations periods, and concludes that the three-year limitations period of CPLR § 214(2) shall apply as a matter of federal law in all § 1983 actions founded on the Constitution.

 Mr. Ford's arrest on September 2, 1977, provided the basis for the present action filed in May of 1979.

 The Second Circuit has recognized that accrual of a federal claim occurs "when the plaintiff knows or has reason to know of the injury which is the basis of his action." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), quoting Kaiser v. Cahn, 510 F.2d 282, 285 (2d Cir. 1974). Clearly CPLR § 214(2) properly accommodates this § 1983 action seeking protection under the Fourth Amendment, where the plaintiff did file within the prescribed three year period.

 II.

 Defendants wish to interpose a good faith affirmative defense, which the Supreme Court in Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980) has stated must be affirmatively pleaded. Although not present in their original answer, the record reflects that defendant's counsel had discussed amendment with the Court previous to trial, but notice of the hearing was never conveyed in a manner which would have prompted the earlier filing of an amended answer. Granting a motion to amend is discretionary, but accepted practice dictates such motions should be liberally granted.

 The defendants moved to amend their pleadings twice during the December 1980 hearing. The first was a general motion to amend under Fed. Rule 15, and the second was a motion pursuant to Fed. Rule 15(b) entered at the close the evidence seeking amendment in conformance with that evidence.

 Turning first to the latter motion, this Court recognizes that motions to amend under Fed. Rule 15(b) are to be liberally granted. Furthermore, "Rule 15(b) often has been successfully utilized to permit the raising of various affirmative defenses that were not asserted in the pleadings. Among these are ... official immunity ..." 6 C. Wright & A. Miller, Fed.Prac. & Proc. Civil § 1492 at 460-1 (1971). That passage cites Bradford Audio Corp. v. Pious, 392 F.2d 67, 73 (2d Cir. 1968), which illustrates a procedural context significantly similar to that of the present case. The court in Bradford noted that it was in fact the appellant who had introduced the contentious testimony, and hence "(T)he appellee may avail himself of the appellant's proof." Id.

 Similarly, this Court must recognize that it was the plaintiff Ralph Ford who introduced not only the defendant officers' state of mind regarding the arrest, but also directly questioned them on their understanding of the limits of a lawful arrest. Clearly, this inquiry complemented by the defendants' responses has provided the Court with adequate testimony to evaluate the affirmative defense posed by the defendants in their Rule 15(b) motion to amend.

 Unlike the Sheriff in Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir. 1981), the defendants herein did not wait until appeal to attempt the affirmative defense of a good faith immunity. The Fifth Circuit correctly followed Gomez in recognizing the need for a defendant to affirmatively plead such a defense, however, interposing that claim on appeal leaves the court without an adequate record to review on the necessary issues.

 The plaintiff's line of questioning divulged both the arresting officers subjective state of mind, and their objective understanding of the fundamental requisites of a lawful, constitutionally permissible arrest. The Supreme Court has clearly articulated the essential importance of this dual analysis in reckoning with the extension of a qualified immunity. Gomez, supra, at 641, 100 S. Ct. at 1924.

 However, this Court must not slavishly impose a burden upon the defendants for pleading an affirmative defense, when it appears that some doubt survives Gomez as to the applicability of such an affirmative pleading burden on defendants in a § 1983 constitutional cause of action. The court in Chagnon v. Bell, 206 ...


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