Kowall v. United States

53 F.R.D. 211, 1971 U.S. Dist. LEXIS 13179
CourtDistrict Court, W.D. Michigan
DecidedMay 21, 1971
DocketCiv. A. No. 277
StatusPublished
Cited by48 cases

This text of 53 F.R.D. 211 (Kowall v. United States) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kowall v. United States, 53 F.R.D. 211, 1971 U.S. Dist. LEXIS 13179 (W.D. Mich. 1971).

Opinion

FOX, Chief Judge.

On October 21, 1970, petitioner, Richard Bruce Kowall, filed a motion to vacate a sentence under 50 App. U.S.C.A. § 462, imposed by this court on July 10, 1969. 28 U.S.C.A. § 2255. He alleged that his arrest, conviction and sentence for failure to report for induction, which arose out of his local board’s declaration that petitioner was a delinquent, were invalid under Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970).

On November 13, 1970, a hearing on petitioner’s motion was held before the Honorable W. Wallace Kent, then Chief Judge of this court. The United States did not oppose the motion.

The court determined that Gutknecht controlled, and ordered that:

(1) Petitioner be released from custody.
(2) His sentence be vacated.
(3) His conviction be set aside.
(4) The indictment be quashed.
(5) “Petitioner’s arrest record be expunged so that petitioner shall return to civilian life with his full complement of civil rights and no burden on him resulting from these events.”

There was no appeal from the above order.

On December 24, 1970, the United States filed a motion for relief from the above order pursuant to Rule 60(b) (6) of the Federal Rules of Civil Procedure. The government’s motion requests the court to:

“ * * * delete from the Court’s Order entered on the 13th day of November 1970 that provision directing the expunging of the arrest record which is contained in the paragraph numbered 5 of that Order, or in the alternative, to limit that part of the Order to the obliteration of such appropriate portions of the Court records as relate to the arrest, or for such other relief as the Court deems appropriate in this respect, on the grounds that the full import of paragraph 5 of the Order does not appear to be clear as to its scope and would appear to be contrary to the public interest.”

The court requested briefs from the parties. Petitioner filed a memorandum in opposition to the government’s motion on March 17, 1971. The United States filed its brief in support on May 3, 1971. Upon consideration of the arguments and authorities contained therein, the court concludes that the motion for relief from the order should be denied.

The government’s position is twofold. First, it argues that a United States District Court has no power to order under 28 U.S.C.A. § 2255 the expunging of records which flow from an arrest by federal authorities, and which are in the possession and control of federal agencies. Second, the United States urges that the public interest in maintaining files of “criminal identification data” so far outweighs any infringement of the “so-called right of privacy” as to justify retention of arrest records where the individual involved is subsequently exonerated of any crime.

I. The court’s power.1

The United States cites no authority in support of its contention that a federal court’s remedial power does [213]*213not reach criminal identification records kept by federal authorities. It does recite various statutes and regulations authorizing and administering the collection and preservation of records by the Attorney General, the United States Marshals, and the Federal Bureau of Investigation. These provisions allegedly prescribe an area of exclusively executive discretion “not subject to judicial interdiction.”

At issue here is not the authority of the above agencies to collect, maintain, and use criminal identification or arrest data. This they obviously are entitled to do by statute. 28 U.S.C.A. §§ 534, 569(c). Nor does this matter involve the particular methods by which these efforts are carried out. The question presented here is whether a court, where the facts of an individual § 2255 case convince it that justice so requires, can order that records of a given arrest be removed from this data. Absent express language prohibiting such judicial action, the statutory and regulatory bases for criminal intelligence activity by federal agencies are of no assistance with respect to this issue. The court does note in passing, however, that there is language in the United States Attorney’s Manual, at Title 8, page 83, which impliedly recognizes a court’s power to order return or destruction of criminal identification records.

The court believes that any challenge to the inherent power of a federal court to enter an order expunging arrest records is foreclosed by prior decision. In United States v. McLeod, 385 F.2d 734 (5th Cir. 1967); Hughes v. Rizzo, 282 F.Supp. 881 (E.D.Pa.1968), and Wheeler v. Goodman, 306 F.Supp. 58 (W.D.N.C.1969), federal courts ordered destruction of arrest records as part of relief granted under civil rights legislation. In these cases the orders were directed to state police agencies. Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486 (1970), and United States v. Kalish, 271 F.Supp. 968 (D.P.R.1967), were original actions against the United States or its agents seeking relief similar to that granted in the present case. Both courts accepted, apparently without challenge, the power of the judiciary to reach federal criminal records. The case of Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969), although it applies directly only to the jurisdiction of District of Columbia courts, contains a discussion of the basis of judicial authority in this area which is both persuasive and of general application.

Relying on the above cases, the court holds that in granting § 2255 relief, and in appropriate circumstances, it may order federal agencies to expunge arrest records.

In the last analysis, the logic of the natural law of remedies does not set arbitrary limits on a federal court’s jurisdiction to right wrongs cognizable by the common law within the jurisdiction of the court. The jurisprudential justification for the ruling cited above and this court’s holding in the instant case was best expressed by Mr. Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 87, 102, 103, 2 L.Ed. 60:

2. This brings us to the second inquiry; which is: If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
* The very essence of civil -* liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.
In the 3d vol. of his Commentaries (p. 23), Blackstone states two cases in [214]*214which a remedy is afforded by mere operation of law.

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Cite This Page — Counsel Stack

Bluebook (online)
53 F.R.D. 211, 1971 U.S. Dist. LEXIS 13179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kowall-v-united-states-miwd-1971.