30. They spotted him walking along a Pennsylvania highway approximately one to two miles from the Pennsylvania New York border. Troopers Counts and Stepanski drew their weapons and ordered him to halt, and lie facedown on the pavement.
31. Morrison complied, was taken into custody and placed in the rear of the patrol car.
32. When asked who he was, Morrison identified himself as Matthew Allen Morrison.
33. The troopers read Morrison his Miranda rights.
34. Trooper Counts asked Morrison whether he wanted to return to New York. At first, Morrison replied in the negative, stating that he wanted to fight extradition. He later stated that he wanted to return to New York to get things over with.
35. At the time that statement was made, Morrison had been without sleep for more than twenty-four hours, was under extreme stress due to the series of events which had taken place over the previous twenty-fours hours, including the illness of his infant daughter, the extended absence of his girlfriend and their minor child from their home, his inability to ascertain their whereabouts, and the incident at the Doan residence.
36. Morrison had a history of depression and alcohol and drug abuse and had, within the previous twenty-four hours, imbibed alcohol and marijuana.
37. Troopers Stepanski and Counts interpreted Morrison's second statement as a willingness to waive extradition and conveyed that message to the New York police.
38. Arrangements were made for Troopers Stepanski and Counts to transfer Morrison to the custody of the New York State Police.
39. The transfer point agreed upon was the Hitching Post Tavern in Shongo, New York.
40. Troopers Stepanski and Counts arrived at the designated location at approximately 11:40 A.M. on November 16, 1990 with Morrison, and custody of him was transferred to the New York State Police.
41. Morrison was asked by the New York State Police whether he was returning to the state voluntarily and he replied in the affirmative.
42. At no time did Morrison sign a written waiver of extradition rights or have his extradition rights explained to him.
43. Morrison told the New York State Police that he was experiencing chest pains and difficulty breathing and was taken to a nearby hospital for evaluation. He was released several hours later into the custody of the New York State Police.
44. Criminal charges were filed against Morrison in New York State.
45. Morrison appeared before the Honorable Peter R. Sprague in County Court for the County of Allegany, New York on January 16, 1991, with counsel, Jerry Fowler, Esq., and entered a plea of guilty to burglary in the third degree.
46. On February 28, 1991, Morrison was sentenced to an indeterminate term of imprisonment with a maximum term of four years and a minimum term of one and 1/3 years, and waived his right of appeal.
47. Morrison served two years in prison and was released in March, 1993.
Conclusions of law
Based upon the evidence presented and the findings of fact, we reach the following conclusions of law:
1. This court has jurisdiction over plaintiff's claims under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343.
2. Under Article IV, Section 2, Clause 2 of the United States Constitution, states have a constitutionally-imposed duty to extradite persons who "flee from Justice" in another state.
3. That duty is implemented by the Federal Extradition Act, 18 U.S.C. § 3182.
4. Procedures for carrying out that duty are governed in Pennsylvania by the Uniform Criminal Extradition Act, codified at 42 Pa. Cons. Stat. Ann. §§ 9121-9144.
5. Alleged fugitives have a federal right to challenge extradition from the asylum state by petitioning for habeas relief.
6. The PaUCEA provides for formal extradition proceedings. 42 Pa. Cons. Stat. Ann. § 9126-9131.
7. It also provides for both formal and informal waiver of the right to such proceedings. 42 Pa. Cons. Stat. Ann. § 9146.
8. Although informal waiver is expressly sanctioned by section 9146(c), procedural safeguards nevertheless attach.
9. To establish a valid waiver, there must be a showing that: 1) an unequivocal statement was made by the alleged fugitive evidencing his intent to waive extradition proceedings and return to the demanding state; 2) the statement was made voluntarily, i.e. was an exercise of free-will and rational thought with at least a rudimentary understanding of the rights being surrendered.
10. Morrison's statement to Troopers Counts and Stepanski on the morning of November 16, 1990 that he wanted to "get things over with" was not sufficiently unequivocal to signify his intent to waive extradition proceedings.
11. Due to the events of the preceding twenty-fours hours, Morrison's statement was not voluntary.
12. Morrison did not waive extradition rights under the PaUCEA.
13. Morrison was deprived of his federal right to petition for writ of habeas corpus before extradition to New York.
14. Defendants' conduct was the legal cause of that harm.
15. Troopers Counts and Stepanski violated clearly established federal statutory and constitutional rights of which a reasonable police officer would have known in transferring Morrison to the custody of New York law enforcement authorities.
16. Defendants are not immune from civil damages for harm sustained by plaintiff as a legal result of their conduct.
17. Plaintiff sustained no actual harm as a legal result of defendants' conduct.
18. Plaintiff is not entitled to compensatory damages.
19. Plaintiff is entitled to nominal damages for the deprivation of his federally-protected right to petition for writ of habeas corpus.
20. Plaintiff will be awarded $ 1.00 as nominal damages.
Plaintiff's section 1983 claim
To prevail on a section 1983 claim, a plaintiff must establish that: 1) the conduct complained of was done by a person acting under color of state law; and 2) that such conduct deprived the plaintiff of rights, privileges, or immunities secured by the United States Constitution or the laws of the United States. Crumley v. Snead, 620 F.2d 481, 483 (5th Cir. 1980) and 42 U.S.C. § 1983.
A fugitive threatened with extradition has a federal right to challenge extradition by petitioning for a writ of habeas corpus in the asylum state. Bradley v. Extradition Corporation of America, 758 F. Supp. 1153, 1157 (W.D.La. 1991), citing Roberts v. Reilly, 116 U.S. 80, 94, 29 L. Ed. 544, 6 S. Ct. 291 (1885). Denial of that right gives rise to a cause of action under section 1983.
Good v. Allain, 823 F.2d 64, 67 (5th Cir. 1987) and Crumley, supra, 620 F.2d at 483.
Morrison clearly has a right to recover under section 1983 if he was denied his federal right to petition for a writ of habeas corpus. The first element necessary to effect recovery under section 1983 is not in contention, i.e., Troopers Counts and Stepanski do not deny that they were acting under color of state law. What is in contention is whether a federal right was violated.
Defendants contend that Morrison waived his right to extradition and therefore suffered no deprivation of rights as a result of their conduct.
As an alleged fugitive in the custody of the Pennsylvania State Police, Morrison had a right to the procedures guaranteed by the Pennsylvania UCEA. Under the PaUCEA, extradition proceedings begin with the issuance of a request from law enforcement authorities in the demanding state to the governor of that state requesting issuance of a warrant directed to the governor of the asylum state. When the warrant issues, the governor of the asylum state (Pennsylvania) responds by, in turn, issuing a governor's warrant directing law enforcement authorities of the asylum to make arrangements for the alleged fugitives' return to the demanding state. 42 Pa. Cons. Stat. §§ 9128 and 9129.
At some point during this process, the fugitive has the right to appear before a judge who will explain to him that a demand has been made by another state, inform him of the charges against him in that state, advise him of his right to counsel and of his right to petition for writ of habeas corpus to challenge extradition. 42 Pa. Cons. Stat. Ann. § 9131.
These rights may be waived by execution of a written waiver before the court, in which the alleged fugitive acknowledges his consent to return to the demanding to state to face the charges against him. Stringent requirements attach to the procedure for executing such a waiver; section 9146(a) provides in relevant part:
(a) General rule.-- Any person arrested in this Commonwealth charged with having committed any crime in another state or alleged to have escaped from confinement or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in section 9128. . .and section 9129. . .and all other procedure incidental to extradition proceedings by executing or subscribing in the presence of a judge of any court of record within this Commonwealth a writing which states that he consents to return to the demanding state. Before such waiver shall be executed or subscribed by such person it shall be the duty of such judge to inform such person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus, as provided in section 9131. . .
42 Pa. Cons. Stat. Ann. § 9146(a). If written consent to the transfer is given pursuant to section 9146(a), the transfer follows as a matter of course with no necessity for any further proceedings.
More pertinent to the case before us, section 9146 also provides for an informal waiver of the right to extradition. Paragraph (c) provides, in relevant part:
Nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this Commonwealth.
42 Pa. Cons. Stat. Ann. § 9146(c).
The question before us is what protections attach to an informal waiver under section 9146(c) and whether those conditions were met here. This issue has been addressed by the federal courts
The United States Supreme Court and the Third Circuit Court of Appeals have yet to rule on this issue. Among the courts which have ruled on it, the requirement that the waiver be knowing and voluntary is universal.
At least one court has added the stipulation that it must also be evidenced by an unequivocal statement of the alleged fugitive indicating his intent to waive extradition.
Many courts which have considered the issue have noted the standard for the waiver only in passing or without explanation for the standard adopted. One of the few cases to discuss the issues at some length was McBride v. Soos, 512 F. Supp. 1207, 1215 (N.D.Ind. 1981), result aff'd on appeal, 679 F.2d 1223 (7th Cir. 1982). In a section 1983 action against two members of the Elkhart County, Indiana Sheriff's Department, McBride alleged that his rights under the Missouri version of the UCEA were violated when he was extradited from Missouri to Indiana to face murder charges there.
Formal extradition procedures were followed. A warrant for plaintiff's arrest was issued December 6, 1974 by an Elkhart County Justice of the Peace. That same day, plaintiff was arrested and jailed in Clayton County, Missouri based on the Indiana warrant. On January 7, 1975, the Governor of Indiana issued a requisition authorizing the demand for plaintiff's return to Elkhart County. The Governor of Missouri issued a Governor's Warrant on January 16, 1975 ordering McBride's extradition to Indiana. Eight days later, the Elkhart County Court received word from Missouri that McBride had waived extradition proceedings and sent two deputy sheriffs from the Elkhart County Sheriff's Department to pick up the plaintiff in Missouri and bring him back to Indiana. The deputies were told that McBride had waived extradition and that all necessary paperwork was in order. When the deputies arrived in Missouri, Missouri authorities relayed the same message: McBride had agreed to waive extradition. They picked up McBride and took him back to Indiana, where he was tried and convicted on a charge of first degree murder.
McBride alleged in his section 1983 action that he had never waived extradition and sought compensatory damages from the two Elkhart County deputies who transported him back to Indiana. The District Court for the Northern District of Indiana found the deputies liable for violating McBride's rights under the Act, stating, inter alia, that they had a duty to confirm that "McBride voluntarily, intelligently and knowingly waived. . .protections" under the Act. McBride, supra, 512 F. Supp. at 1211. The Missouri version of the UCEA, like the Pennsylvania version, contained a provision which permitted informal waiver of extradition rights.
The court found that defendants had failed to make "an affirmative showing of a waiver, express or implied", stating that there was no evidence in the record of any statement by McBride relating to extradition. Id. at 1212. The only evidence offered to establish such a waiver was defendants' testimony that McBride stated to them before leaving Missouri, that he was "prepared to return to Indiana and get matters straightened out." The court found this statement insufficient to establish a waiver, stating: "A desire to return to Indiana and resolve the outstanding charges does not mean that McBride also waived his procedural protections." Id. at 1212-13. "This statement", the court held, did not "represent 'an intentional relinquishment or abandonment' of rights in an extradition proceeding." Id. at 1212.
While the court decided that it need not determine whether an "oral and implied" waiver "falls within the scope and meaning" of the Missouri UCEA, since there was no waiver of any kind, the court's discussion included an analysis of what is required to effect a waiver. Applying the standards applicable to the waiver of constitutional rights in other contexts, such as the Sixth Amendment right to counsel (See: Carnley v. Cochran, 369 U.S. 506, 516, 8 L. Ed. 2d 70, 82 S. Ct. 884 (1969)), the entry of a guilty plea (See: Boykin v. Alabama, 395 U.S. 238, 242-43, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969)), and Miranda rights (See: Fare v. Michael C., 442 U.S. 707, 61 L. Ed. 2d 197, 99 S. Ct. 2560 (1979)), the court looked for some evidence that McBride's extradition rights had been explained to him, stating that although McBride "was aware of some of. . .[statutory extradition] protections, "he was not aware of all" of them and was not "fully aware" of their nature. Id. at 1213. "Absent such awareness, no waiver is valid." Id. McBride's silence, the court held, could not operate as a valid waiver. Failure to object is not equivalent to "an affirmative waiver" of rights. Id.
The Indiana District Court identified three elements essential to establish a valid waiver: 1) an unequivocal statement by the alleged fugitive of his intent to waive extradition rights; 2) made voluntarily; and 3) with some rudimentary understanding of the rights being relinquished. Id.11
The Pennsylvania Supreme Court takes the same view. In Commonwealth v. Green, 525 Pa. 424, 581 A.2d 544 (Pa. 1990) (applying the New Jersey version of the UCEA), the Pennsylvania Supreme Court upheld appellant's written waiver of extradition in the face of challenges to its validity based on the alleged failure of the authorities in the asylum state to advise him of his extradition rights and to take him before a judge or magistrate to sign the waiver. After reviewing applicable federal and state court federal precedent, the Court concluded that: "So long as the waiver is explained to defendant and his consent is not coerced, the waiver is valid." Id. at 556. The Court went on to hold that while section 9146(c) plainly sanctions execution of the waiver outside the presence of a judge or magistrate, the waiver must, nevertheless, be "knowing, intelligent and voluntary and non-coercive". Id. at 556. The court cited, as authority for that conclusion, the Comment to Section 1-103,
It is generally intended that the standards generally applicable to waivers of constitutional rights in criminal proceedings be applicable to waivers of the right to require a judicial hearing under this Section. The waiver must be 'made voluntarily, knowingly, and intelligently.'
Id. at 557.
The District Court for the Eastern District of Pennsylvania endorsed the requirement that a waiver be made knowingly in United States v. Pennsylvania State Police (Penna. State Police), 548 F. Supp. 9, 15 (E.D.Pa. 1982). Although the waiver issue was not directly before the court, it noted in passing that a fugitive extradited from Delaware to Pennsylvania had the right to waive rights granted by the PaUCEA "in writing but only after they had been fully explained to him under the Delaware version of the Act."
The Eighth Circuit inferred, in Pierson v. Grant, 527 F.2d 161 (8th Cir. 1975), that some knowledge and understanding of the rights being surrendered is necessary. In upholding a prerelease extradition waiver against plaintiff's challenge that the waiver was invalid because it had been signed as a condition of parole and had not been signed before a judge or magistrate, the court recognized that the waiver had to be voluntary. It held, however, that that requirement had not been breached by requiring the waiver as a condition of parole absent a specific showing that the plaintiff had been coerced. Id. at 164. In agreeing with the standard applied by the district court, the Eighth Circuit stated that it was "sufficient if. . .[the plaintiff] knew generally that he could require the state to undergo formal procedures to effect his return and chose to give this up". The appellate court held that the waiver was voluntary so long as Pierson "had a general knowledge and understanding of what was involved in the waiver" when he signed it. The court found he did have such knowledge since he conceded that the waiver was read to him before he signed it and that he basically had a "good idea" of what it meant. Id. at 165.
Although only a limited number of courts have addressed the issue of waiver of extradition rights, the courts have been unanimous in equating the waiver to the waiver of constitutionally-guaranteed rights and have required such a waiver to be, at minimum, knowing and voluntary. The waiver must be "knowing" in the sense that the alleged fugitive understands that he has certain rights under the UCEA and affirmatively indicates an intention to relinquish those rights. The waiver must be "voluntary" in a general sense, meaning that it was given of the individual's "own accord or by free choice". The Random House Dictionary 2131 (2d ed. unabridged 1987). It is with these criteria in mind that we review Morrison's purported waiver of extradition rights.
Morrison's purported waiver
The only evidence proffered by defendants to show a knowing and voluntary waiver on Morrison's part was the testimony of Troopers Counts and Stepanski regarding a statement made by Morrison shortly after his arrest while seated in the back of the squad car. Defendants testified that although Morrison stated at first that he wanted to fight extradition, he recanted that statement a few minutes later, stating that he wanted to return to New York and "get things over with". They interpreted his second statement as a willingness on his part to waive formal extradition proceedings and return to New York voluntarily.
Morrison's statement that he wanted to "get things over with" was not sufficiently unequivocal to signify a willingness to waive extradition rights. In McBride, supra, the Indiana District Court rejected the argument that a similar statement by the plaintiff in that case could constitute a waiver. McBride told the Indiana deputies who went to transport him back to Indiana that he was "prepared to return to Indiana and get matters straightened out." The court found this insufficient to establish a waiver, stating: "A desire to return to Indiana and resolve the outstanding charges does not mean that McBride also waived his procedural protections." Id. at 1212-13. "This statement", the court held, did not "represent 'an intentional relinquishment or abandonment' of rights in an extradition proceeding." Id. at 1212.
The same can be said of Morrison's statement to Troopers Counts and Stepanski. His desire to "get things over with" cannot be equated to an indication of intent to waive extradition rights, particularly in light of the statement made a few minutes earlier that he wanted to fight extradition.
Not only was plaintiff's statement equivocal, it was made under circumstances which make its voluntary nature highly questionable. Morrison had been without sleep for more than twenty-four hours prior to his arrest. He had also been under tremendous stress due to a series of events and crises, some of his own making, some not. He had also consumed both alcohol and drugs during the previous twenty-fours hours and had a history of problems with alcohol and drug abuse.
All of these conditions combined to make any statement he made under such circumstances the antithesis of a voluntary relinquishment of known rights. In light of the circumstances under which it was made, we do not find Morrison's waiver, if his statement can be considered such, voluntary or knowing. We, find, therefore, that his conduct was insufficient to effect a waiver of extradition rights under the PaUCEA. The absence of a waiver renders Morrison's return to New York involuntary and in violation of his extradition rights, and in particular, of his federal right to petition for habeas relief.
Troopers Counts and Stepanski assert that they are entitled to qualified immunity from civil damages under Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) and its progeny. In Harlow, supra, the United States Supreme Court reformulated the standard for determining qualified immunity,
Govermental officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
Whether "clearly established constitutional protections" were violated is a question of law. Limes-Miller v. City of Chicago, 773 F. Supp. 1130, 1143 (N.D.Ill. 1991). State actors are not required to "anticipate subsequent legal developments" or to know that "the law forbade conduct not previously identified as unlawful." Harlow, supra, 457 U.S. at 818.
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.