Appeal from a judgment of the District Court for the Southern District of New York (Constance Baker Motley, Chief Judge) awarding $1 nominal damages as a remittitur in lieu of a damage retrial in a suit under 42 U.S.C. § 1983 (Supp. V 1981) alleging violation of Sixth Amendment rights by a police officer.
Newman, Kearse and Pratt, Circuit Judges.
This is an appeal from a judgment of the District Court for the Southern District of New York (Constance Baker Motley, Chief Judge) awarding $1 in nominal damages to plaintiff Brian O'Hagan against defendant Hector L. Soto, a detective in the Haverstraw, New York, police department. Because we agree with Soto's contention that he was entitled to qualified immunity in the circumstances of this case, we reverse.
O'Hagan brought suit against Soto under 42 U.S.C. § 1983 (Supp. V 1981), alleging a denial of his Sixth Amendment right to counsel. The deprivation allegedly occurred when Soto, questioning O'Hagan at the police station following O'Hagan's arrest for possession of stolen property, denied him the opportunity to make a telephone call. No incriminating statement was obtained. Subsequently O'Hagan called his father, who came to the police station and secured his son's release on bail after an arraignment before a Village Justice. The criminal charge was ultimately dismissed.
Trial of the section 1983 claim resulted in an initial verdict of $25,000 compensatory damages and $25,000 punitive damages. Chief Judge Motley understandably ruled these awards excessive and, upon O'Hagan's refusal to accept a remittitur down to $1,500, ordered a new trial limited to damages, 565 F. Supp. 422. Upon retrial before Judge Palmieri, the second jury awarded O'Hagan no damages.*fn1 After subsequent procedural steps not relevant to this appeal, Chief Judge Motley ordered that the action be discontinued upon plaintiff's agreement to accept $1 as nominal damages.*fn2 Soto did not agree to pay the dollar, apparently resisting any acknowledgement of wrongdoing.
Soto contends on appeal, among other things, that O'Hagan's Sixth Amendment right to counsel had not attached during questioning at the police station and did not attach until the subsequent arraignment which, in his view, marked the commencement of criminal proceedings within the meaning of Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972). In United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972), we held that New York criminal proceedings begin, for Sixth Amendment purposes, with the issuance of an arrest warrant. The state law in effect during the relevant events in Robinson was repealed in 1970 and replaced with the New York Criminal Procedure law (McKinney 1981). The new statute provides that a criminal action is commenced "by the filing of an accusatory instrument with a criminal court." Id. § 100.05. Arguably the charging document underlying the warrant on which O'Hagan was arrested sufficed to trigger Sixth Amendment protection, but the matter is clouded by our decision in United States v. Duvall, 537 F.2d 15 (2d Cir. 1976), which held that the right to counsel attaches in federal cases upon arraignment before a magistrate and not upon an earlier arrest on a warrant supported by a complaint.
Though Chief Judge Motley ruled in this case that O'Hagan's right to counsel had attached at the time he was questioned by Soto, she acknowledged that the continued vitality of Robinson was "unclear" in the wake of Duvall. O'Hagan v. Soto, 523 F. Supp. 625 (S.D.N.Y. 1981). That very uncertainty, which we do not resolve in this decision, is pertinent to Soto's claim of qualified immunity. Now that the Supreme Court has made the objective component of the qualified immunity defense paramount, Harlow v. Fitzgerald, 457 U.S. 800, 817-19, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), a defendant is entitled to prevail when his conduct does not violate "clearly established" rights, id. at 818. See Procunier v. Navarette, 434 U.S. 555, 565, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978); Wood v. Strickland, 420 U.S. 308, 321, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975); Engblom v. Carey, 724 F.2d 28 (2d Cir. 1983). Though the Sixth Amendment right to counsel is well established, the uncertainty as to whether it had attached at the time Soto questioned O'Hagan entitles Soto to resist liability on the basis of qualified immunity.*fn3 For this reason, the judgment against him must be reversed.*fn4
Appellant's claim for an award of counsel fees and his lawyer's request that critical remarks of the District Judge be expunged are denied.*fn5
The judgment is reversed and the cause remanded with directions to dismiss the complaint. No costs.