Eischen v. Minnehaha County

363 N.W.2d 199, 1985 S.D. LEXIS 278

Opinions

WUEST, Acting Justice.

This appeal involves an action for damages for the alleged violation of appellant’s civil rights under 42 U.S.C. § 1983 (1981). A jury trial was held on December 20, 1983. At the close of appellant’s case, the trial court granted a defense motion for directed verdict. We affirm.

In reviewing a directed verdict, this court views the evidence in a light most favorable to the non-moving party and gives that party the benefit of all reasonable inferences. Cox v. Brookings Intern. Life Ins. Co., 331 N.W.2d 299 (S.D.1983). A verdict is properly directed when there is no question for the trier of facts and where all reasonable men must agree that there has been an essential failure of proof to establish a prima facie case against the defendant. Thorstenson v. Mobridge Iron Works Co., 87 S.D. 358, 208 N.W.2d 715 (1973).

On Saturday, September 13, 1980, George Eischen (appellant) received a form letter from the Minnehaha County Sheriff’s Department (Department) stating that a warrant had been issued for his arrest for failure to pay a traffic fine. The letter informed appellant that his bond had been set at $47.00, and that he could bring or mail the bond in the form of cash, money order or cashier’s check to Department. The letter further informed appellant that if he did not comply with its terms he would be arrested. This form letter was routine procedure by Department prior to executing arrest warrants for traffic offenses. Appellant called the Minnehaha County Public Safety Building to obtain additional information concerning the letter and was told by an unidentified individual that he could come there that day and pay the bond or wait until the following Monday.

Appellant elected to go to the Public Safety Building that day, where he showed the letter to an officer and stated that he had come to take care of the matter. He was directed to Department, where he met an officer who asked for the $47.00 bond in cash. Appellant was unable to comply with the officer’s request as he had only brought his personal checkbook. Appellant was informed by the officer that the officer could not accept anything other than cash. At this point, the officer showed appellant the warrant, placed him under arrest, and began filling out forms. Appellant stated that he could obtain the money if he was allowed to make a telephone call. The officer, however, told him that certain procedures were required before he was allowed to call. Thereafter, appellant’s personal effects were inventoried, and he was asked to remove his shoes. He signed a “booking” card and was informed that he could make the call. At appellant’s request, the officer dialed the number of a friend, remaining on the line to explain the bonding procedure, and stress that the matter was no joke. Appellant was placed in a holding area until his friends arrived with the $47.00 cash bond, at which time he was released. The incident in the Department lasted approximately one hour and five minutes.

Appellant alleges violation of his civil rights under 42 U.S.C. § 1983, claiming: (1) That he was denied equal protection of the laws by Department; (2) Department abused its authority in arresting him; and (3) the monitoring of his phone conversation constituted pre-conviction punishment. In granting a defense motion for directed verdict at the close of appellant’s case, the trial court ruled that, inasmuch as appellant voluntarily presented himself to Department, the evidence viewed in a light most favorable to him did not show that the officers involved failed to follow the procedures that were set forth. We agree.

To establish a right to relief under 42 U.S.C. § 1983, appellant must allege facts which show: (1) That he had been deprived of a right, privilege, or immunity secured by the Constitution and laws of the United States; and (2) that the appellees deprived him of such right, privilege, or immunity while acting under color of state law or authority. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570 (6th Cir.1979); Stene v. Beresford Sch. Dist., No. 61-2, Etc., 425 P.Supp. 1389 (D.S.D.1977).

Appellant contends, inter alia, that Department denied him the right to equal protection of law by refusing his personal check, because it treated him differently than those who mailed checks to satisfy traffic offense warrants. Apparently, Department had accepted some personal checks received through the mail, although the warrant required cash, and the form letter specified cash, money order or cashier’s check. Department was acting as a conduit for the office of the Minne-haha County Clerk of Courts (Clerk), who decided whether or not a check would be accepted. Equal protection of law requires that the rights of every person must be governed by the same rule of law under similar circumstances. City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975); State v. King, 82 S.D. 514, 149 N.W.2d 509 (1967). The equal protection test to be applied in this case is that for non-suspect classifications. When a non-suspect classification is involved, any rational basis may be sufficient to justify the classification under the equal protection clause. Prostrollo v. University of South Dakota, 507 F.2d 775 (8th Cir.1974), citing Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). As the trial court noted, appellant’s voluntary appearance at Department is a circumstance quite different from that of the officers going to his home and taking him into custody. Moreover, Department’s refusal of his tender of a personal check to pay the $47.00 bond is a situation factually distinguishable from the acceptance of personal checks through the mail. Indeed, several rational bases exist for treating these circumstances differently. The record in this case indicates that the Clerk did not allow Department to accept personal checks and that the decision to accept such instruments through the mail was ultimately made by the Clerk. Furthermore, if Department accepted appellant’s personal check, it may have either been returned for insufficient funds, rejected by the Clerk, or subjected to a stop-payment order. While the same may be said for personal checks sent through the mail, the fact that appellant was in custody, thus saving the time and expense of locating and transporting him to the Public Safety Building, provides another rational basis for the distinction. Also, in the case of an insufficient funds check, valuable court time would be used inasmuch as another warrant would have to be issued for appellant’s arrest.

Appellant cites Lessman v. McCormick, 591 F.2d 605, 611 (10th Cir.1979) which holds that “an arrest which might be lawful on its face can be an abuse of power, condemned by the Civil Rights Act, if done for an improper purpose.” The court held that appellant Lessman stated a cause of action under section 1983 even though appellant had been arrested on a valid warrant for an overtime parking violation that had not been paid. The present case is distinguishable from Lessman. There, the improper purpose alleged was that the police had arrested Lessman in order to intimidate her into paying a bank debt, and not for any law enforcement purpose. The record in the instant case indicates no personal animus toward appellant by the officers involved, nor do the facts evince a showing of any “improper” purpose. Appellant was arrested pursuant to a valid bench warrant executed without question or hesitation.

“Constitutional rights are shaped by the particular interest sought to be protected.” Henry v. City of Minneapolis, 512 F.Supp. 293, 296 (D.Minn.1981), citing Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042, 1047, 55 L.Ed.2d 252, 259 (1978). The record shows that appellant was held by the Department for approximately one hour. Although “the concept of ‘liberty’ guaranteed by the Fourteenth Amendment [certainly] denotes freedom from bodily restraint. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, [626,] 67 L.Ed. 1042, [1045,] (1923). Perhaps, however, not all unlawful deprivations of liberty were intended to be protected under § 1983.” Lessman, 591 F.2d at 609. In Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), a civil rights action brought against a sheriff for false imprisonment, plaintiff was arrested pursuant to a valid warrant and detained in jail for three days despite his protests of mistaken identity. The Supreme Court stated:

The Fourteenth Amendment does not protect against all deprivations of liberty. It protects only against deprivations of liberty accomplished “without due process of law.” A reasonable division of functions between law enforcement officers, committing magistrates, and judicial officers — all of whom may be potential defendants in a § 1983 action — is entirely consistent with “due process of law.”

443 U.S. at 145, 99 S.Ct. at 2695, 61 L.Ed.2d at 442.

“Cases involving cognizable claims under section 1983 typically involve harsh treatment of detained individuals, detention without warrant or arraignment, or other similar egregious behavior on the part of government officials.” Henry, supra at 297, citing Wells v. Ward, 470 F.2d 1185, 1188, n. 3 (10th Cir.1972). See, e.g., Terket v. Lund, 623 F.2d 29, 31, n. 1 (7th Cir.1980); Hall v. Tawney, 621 F.2d 607 (4th Cir. 1980); Sami v. United States, 617 F.2d 755 (D.C.Cir.1979). In Wells, the court refused to find a cause of action under section 1983 where a student ticketed for a traffic offense refused to sign the ticket and attempted to drive away. He was taken into custody, handcuffed, transported ten miles to a justice of the peace, not allowed to make bond on an American Automobile As sociation bond card, and kept in a cell for over an hour. The Wells Court pointed out that section 1983 requires a deprivation of constitutional magnitude and that “[i]t does not follow that all invasions, however trivial or frivolous, serve to activate remedies under the due process clause of the Fourteenth Amendment as well as those parts of the Bill of Rights which are incorporated in and made a part of due process.” Id. at 1187-88. The court held that “in the final analysis this incident falls short, not only because the officer acted in accordance with local law ... but also because the case is insubstantial.” Id. at 1189. See also Brown v. Bigger, 622 F.2d 1025 (10th Cir.1980); Atkins v. Lanning, 556 F.2d 485 (10th Cir.1977); Bennett v. Passic, 545 F.2d 1260 (10th Cir.1976). The facts in the instant action show no “harsh treatment” of appellant, nor any “similar egregious behavior” by Department. Moreover, appellant was detained for a relatively short period of time pursuant to a warrant, the validity of which was never questioned. Under these circumstances, we believe that the deprivation of appellant’s liberty was not of such a substantial constitutional magnitude as to warrant a cause of action under section 1983.

Appellant further contends that the decision to refuse the personal check tendered by him at the Public Safety Building was a matter of custom or conscious policy on the part of the Department. It is well-settled that custom for the purpose of a section 1983 action must have the force of law by virtue of “persistent practices” of state officials. Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Adickes, supra; Lodermeier v. City of Sioux Falls, 458 F.Supp. 1202 (D.S.D.1978); Ellingson v. Sears, Roebuck & Co., 363 F.Supp. 1344 (D.S.D.1973). The record in the instant case does not show that the actions by the officers involved constituted persistent practices rising to the level of “custom” as that term is used in section 1983 actions. As a factual matter, the form letter advised appellant the bond had to be cash, a money order, or cashier’s check, and as previously stated, Department was acting as a conduit for the Clerk’s Office who decided whether or not a check would be accepted.

We find no merit to appellant’s claim of pre-conviction punishment by the officer monitoring appellant’s telephone call, which was disputed by the officer, although we view the evidence in a light most favorable to the appellant since he was the non-moving party.

We believe that the trial court properly directed a verdict in favor of appellees.

Accordingly, the trial court’s judgment is affirmed.

FOSHEIM, C.J., and MORGAN, J., concur. WOLLMAN, J., concurs specially. HENDERSON, J., dissents.