The elements of a cause of action under 42 U.S.C. 1983 are (1) action under color of any statute, ordinance, regulation, custom or usage of any State or Territory which (2) subjects, or causes to be subjected any person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws of the United States. Cohen v. Norris, 9 Cir. 1962, 300 F.2d 24, 30.
None of these essential elements under either of the cited sections is disclosed by the uncontradicted evidence before me.
In testing the sufficiency of the allegations of a complaint to support a cause of action based upon 42 U.S.C. 1983 where defendant police officers were charged with having arrested the plaintiff without a warrant and without probable cause, and for the purpose of denying plaintiff his right, privileges and immunities under the Constitution, the Ninth Circuit Court of Appeals, in Agnew v. City of Compton, supra, stated at 239 F.2d p. 231:
'General allegations of this kind, when unsupported by the complaint, read as a whole, have consistently been rejected as insufficient. The complaint under examination, considered as a whole, does not support these general allegations. Indeed, the facts alleged belie such a conclusion. The purpose of the arrest was to enforce a valid ordinance. The means employed were reasonable. No violence or unusual indignity resulted. There were no over-tones of discrimination. * * *'
In the present case the plaintiff was arrested while in the act, committed in the presence of the arresting officers, of attempting to break and enter a residence in the night time, i.e., to commit a high misdemeanor under the criminal law of New Jersey. See N.J.S.A. 2A:94-1; 2A:85-5; State v. Blechman, 135 N.J.L. 99, 50 A.2d 152. The means employed in making the arrest were reasonable. Although it was necessary to pursue the plaintiff, and during that pursuit he fell and suffered minor injuries, they may not be equated (nor does plaintiff so contend) to violence or unusual indignity on the part of the defendants. There were absolutely no over-tones of discrimination, -- any person caught in the attempt to commit a crime would have been exposed to similar action by the police. State v. Genese, 102 N.J.L. 134, 130 A. 642; N.J.S.A. 2A:169-3; State v. Ronnie, 41 N.J.Super. 339, 125 A.2d 163. In the enforcement of the criminal law of a State and for the protection of society, police officers are authorized to make a search of the person of the individual arrested, Cohen v. Norris, supra, 300 F.2d p. 31 and in the light of the result of such a search, to interrogate the individual, particularly where similar unsolved offenses had recently been committed in the community. A search in the instant case was made and the fruits of burglary found on the person of the plaintiff. The broadcasting to other police departments of the fact of his arrest and his identity was in no way offensive to the constitutional rights of the prisoner. That broadcast evoked notification from appropriate authorities in the City of New York that the prisoner was wanted by them for violation of parole. Other police departments made known their interest in the prisoner and were permitted to interview him while he was in the custody of the Borough of Fort Lee. There was no unreasonable delay on the part of Detective Seibert in filing a complaint against, and securing a warrant for the arrest of the plaintiff. All of this occurred during the evening of the date of his arrest. N.J.S.A. 2A:156-1 authorizes any peace officer of the State, in fresh pursuit of a person who has committed or attempted to commit any criminal offense in the presence of such officer, to arrest and hold such person in custody anywhere in the State.
Plaintiff relies heavily upon McNabb v. United States, 1943, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819. That decision prohibits the use in criminal cases of confessions obtained during illegal detention and extends to cases where there is a failure to bring the accused before a committing magistrate without unnecessary delay; but the McNabb rule has not been extended to State prosecutions as a requirement of the Fourteenth Amendment. Smith v. Heard, 5 Cir. 1963, 315 F.2d 692, 694, cert. den. 375 U.S. 883, 84 S. Ct. 154, 11 L. Ed. 2d 113; see also Brown v. Allen, 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469; Gallegos v. State of Nebraska, 1951, 342 U.S. 55, 72 S. Ct. 141, 96 L. Ed. 86; Kent v. United States, 1 Cir. 1959, 272 F.2d 795; Betts v. Brady, 1942, 316 U.S. 455, 461, 62 S. Ct. 1252, 86 L. Ed. 1595. Mallory v. United States, 1957, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 follows McNabb in upholding the right of a defendant in a federal criminal case to compliance by arresting officers with the requirements of F.R.Cr.P. 5(a), but does not extend the McNabb requirement to States arrests or criminal proceedings. Both McNabb and Mallory involve confessions obtained by police during the period between arrest and arraignment before a United States Commissioner.
In the present case no question of the voluntariness of a confession is presented, indeed, no such confession was necessary because the arrest was made during the actual commission of the crime. Plaintiff does not contend that the signed statements which he gave to the police were involuntary. It is the bare delay between arrest and arraignment of which he complains. Except for the conclusory allegation of damage resulting therefrom, the uncontradicted evidence is that he suffered no damage. He was a New York parole violator when he was arrested in the course of committing the crime in New Jersey, and, through the investigation conducted by the police authorities of several other jurisdictions during his detention, his guilt of or connection with other crimes was disclosed. Judge Meaney of this Court has already found that his present imprisonment is not in violation of any of plaintiff's constitutional rights.
The Federal civil rights statutes upon which the present complaint is based give a right of action only for deprivation of rights, privileges and immunities secured by the Constitution and federal laws. To maintain this action plaintiff must allege facts showing that the defendants acted or conspired together to deprive him of rights, privileges, and immunities secured by the Constitution and laws of the United States. Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019; Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495; Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497; Ginsburg v. Stern, D.C.Pa.1954, 125 F.Supp. 596, affd. 3 Cir. 1955, 225 F.2d 245; Copley v. Sweet, D.C.Mich.1955, 133 F.Supp. 502, affd. 6 Cir. 1956, 234 F.2d 660, cert. den. 1956, 352 U.S. 887, 77 S. Ct. 138, 1 L. Ed. 2d 91.
Mallory v. United States, supra; Upshaw v. United States, 1948, 335 U.S. 410, 69 S. Ct. 170, 93 L. Ed. 100; and McNabb v. United States, supra, involved federal criminal prosecutions and rights under the United States Constitution. The Sixth Amendment provisions are applicable only to federal criminal proceedings. Betts v. Brady, supra; Bute v. Illinois, 1948, 333 U.S. 640, 68 S. Ct. 763, 92 L. Ed. 986. The due process clause of the Fourteenth Amendment does not make the speedy trial provisions of the Sixth Amendment directly applicable to State action. To establish a violation of the due process clause plaintiff must allege and prove that the delay precluded a fair determination of the charges against him. United States ex rel. Von Cseh v. Fay, 2 Cir. 1963, 313 F.2d 620, cert. den. Von Cseh v. New York, 365 U.S. 817, 81 S. Ct. 699, 5 L. Ed. 2d 695. Plaintiff's plea of guilty precluded the possibility that delay in bringing him before a magistrate caused the constitutional deprivation which he alleges.
In Wakat v. Harlib, 7 Cir. 1958, 253 F.2d 59, also relied upon by the plaintiff here, the affirmance of the judgment for the plaintiff in the cited case was upon the ground that the treatment given to Wakat by the defendants in that case was different from the treatment which he would have received if he had not had a record of conviction for crime. Therefore, he was found to have been deprived of the equal protection of the law and to have been discriminated against by the defendants.
This opinion shall constitute my findings of fact and conclusions of law.
Defendants' motion for summary judgment must prevail and an appropriate order may be presented in conformity with the views herein expressed.
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