OWENS v. OKURE

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ORAL ARGUMENT OF PETER H. SCHIFF ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-56, Owens and Lessard v. Okure.

Mr. Schiff, you may proceed whenever you're ready.

Mr. Schiff: Mr. Chief Justice, may it please the Court:

The Respondent in this case alleged that he was battered and beaten by the Petitioners during an arrest on the campus at the State University of New York in Albany in January of 1984.

This suit was filed 22 months later.

Petitioners moved to dismiss on the grounds of the statute of limitations contending that a one-year statute of limitations should have been applied.

Both the District Court and the Second Circuit rejected our position.

The case came up here presumably because of the conflict with the Eleventh, Sixth and Fifth Circuits.

I might mention that prior to the time that he filed this suit, Respondent had sought recovery from... in the New York Court of Claims based on a 1983 action against the State, but that was dismissed because 1983 actions did not lie against the State in the Court of Claims.

The basic issue here is how to apply the principles that this Court announced in Wilson/Garcia in 1985.

Respondent also argues that if the Court rules in Petitioners' favor, that the decision should be applied prospectively only.

I intend first to discuss the merits of which statute of limitations should be borrowed and then will argue that the decision should not be applied prospectively only.

In... in Wilson, this Court decided that a single statute of limitations should be borrowed under Section 1988 for each state for purposes of 1983 cases, and that the proper choice would be a personal injury statute of limitations of general applicability.

Wilson involved the State of New Mexico which has only one such personal injury statute of limitations.

Now, in the course of its decision in Wilson, the Court rejected two other possible statute of limitations.

One was the one relating to remedies for wrongs committed by public officials and that was viewed as inconsistent with the purposes of 1983 since one of the very purposes of the Act was that the state remedies were insufficient.

And the other statute of limitations considered were for suits arising under statutory claims.

But the Court pointed out that back in 1871 when 19... Section 1983 was enacted as Section 1 of the Ku Klux Klan Act, that there were few such claims, such statutory claims.

The difficulty has arisen since Wilson because more than half the states, including New York, have more than one personal injury statute of limitations that are generally applicable.

And it is our position that the statute of limitations, consistent with Wilson, should be used as the one applies to intentional personal torts, at least particularly those that encompass assault, battery and false imprisonment.

Now, the reason we make this argument is that, as the Court explained in Wilson, the very catalyst of the Ku Klux Klan Act was the campaign of violence and deception in the South that had been fomented by the Klan which was denying decent citizens their political and civil rights.

Now, that was being accomplished by the Klan through acts of violence, whippings, shootings, murders and so forth.

And it is for this reason that three of the circuits, initially Judge Johnson in the Eleventh Circuit, concluded that the logic was that therefore the personal injury statute of limitations which dealt with those subject matters was the most appropriate to be borrowed.

Now, our opponents suggest in their brief that the... Section 1 of the Klan Act was not directed against violations by the clansmen themselves, but rather against... suits against the local and state officials who were not coping with the reign of terror being perpetrated by the Klan.

That argument assumes that everyone sued under 1983 must be a state official.

That simply isn't true under the decisions of this Court.

To be sure, there is a need that the action be under color of law.

But this Court's decisions in Annex v. Cress, 1970; Dennis v. Sparks, 1980, have made it clear that it is enough that the defendant be a willful participant in joint action with the state or its agents.

Private persons jointly engaged with state officials in a challenged action are, indeed, acting under color of law for Section 1983 purposes.

And this would be true, as the Court explained in the Dennis case, even if the state actor who provides the basis for the action himself or herself might be immune from suit such as a judge, prosecutor, law enforcement officials.

Now, this Court recognized in Annex that state involvement might result from the police intentionally tolerating violence directed at those seeking to assert their civil rights.

And that's exactly the kind of situation that we think Congress did envision in 1871 when it enacted the Ku Klux Klan Act.

The Klan was then viewed by the Republican supporters of the Act as a group designed to aid the Democratic Party and to deter the supporters of that party, both black and white, from voting.

And the... excuse me... there are references in the debates, which have been discussed by this Court on numerous occasions, to persist in discriminatory refusals, to enforce the laws by state officials in some parts of the postbellum South.

This showed a belief that the Klan was acting with the deliberate acceptance of local law enforcement officials.

Indeed, the Congressional Record... Congressional Globe showed the belief that the Klan was acting in collusion.

There were signals passed between members of the Klan and law enforcement officials with people in the jury box and so forth.

So, we believe that there is every reason to believe that Section 1 of the Klan Act, Section 1983, certainly viewed by the Congress in 1871 as one tool to be used to permit suits with respect to the violent acts of the Klan members themselves.

Unidentified Justice: What does that have to do with the present time?

Mr. Schiff: Well, we think that the analysis of this Court in Wilson was in large measure a historic analysis not totally, but in large measure a historic analysis as which would be the most appropriate statute to use.

The 1983 actions essentially are all or mostly intentional torts.

Now, they're not all violent torts, but they certainly mostly involve intention.

There are still some open questions as to whether wanton misconduct or perhaps a high level of negligence... and certainly simple negligence is not sufficient for a 1983 cause of action.

So, we think that the historical context shows a... the reason why where there's more than one personal injury statute of limitations in the state, that the state... that the one that should be chosen is the one that does relate to the kind of acts that were being considered back in 1871.

We... Respondents argue in their brief that our position would result in further litigation because of alleged difficulties in choosing among intentional tort statutes in states where there is more than one such statute.

We think that the contention... the assertion of confusion is really not well-founded.

Indeed, their own Appendix A to their brief, which lays out the various statutes of limitations, shows that in general where there is more than one, the reason for being more than one is that there's a separate statute of limitations, usually shorter, for libel and slander.

Now, it's pretty clear that this history I've just recounted simply doesn't provide a basis for picking libel and slander statutes.

It's the ones that involve the more assault directed torts.

The... I'd also point out that looking at the New York statute of limitations, which is not atypical, that if you choose a statute for which they contend, the one that essentially applies to all personal injury statute... has a... all personal injuries other than those listed in other statutes, which includes a series of other provisions.

There's a separate one for malpractice and then the intentional tort and some other ones.

But the bulk of those actions brought under that statute of limitations would relate to negligence actions, product liability cases, the very types of cases that this Court has indicated simply would not give rise to a 1983 cause of action.

It would be really quite anomalous to pick the negligence statute.

Respondents also make an argument historically that the division that we have made is allegedly inconsistent with the way statutes of limitations reviewed at that time, referring to a text of Professor Prosser, among others... we think that their discussion there between direct and indirect force kind of torts, while interesting historically, wasn't even valid by 1871 as Prosser's text itself shows.

And, indeed, if one looks at Appendix B in their brief, it will appear that the kind of dichotomy between assault, battery, false imprisonment, malicious prosecution and so forth and other kind of personal injuries, the kind that is... exists in today's statute, was pretty much true at that time.

The Second Circuit seemed to... seemed to hold and our Respondents argue that a one-year statute of limitations is inconsistent with federal law.

Now, we think there's absolutely no merit to this.

This Court, as far as I can read the cases, has never decided inconsistency of a state statute of limitations solely on the basis of the length of time.

It has looked... as in the Burnett v. Grattan case, it has rejected a state statute of limitations on a functional basis.

There that related to administrative discrimination proceedings, and the Maryland statute is not directed to general litigation.

So, that was rejected.

However, it is of interest that three of the Justices of this Court in Burnett in a concurring opinion pointed to the one-year statute of limitations that relates to Section 1986, which was Section 7 of the Ku Klux Klan Act of 1871, which does include a one-year statute of limitations.

And the concurring opinion noted that one year would certainly be appropriate for 1983 actions.

And we think that is surely true since the kind of proceedings are not that different.

The type of evidence that needs to be obtained in the great bulk of the cases is not materially different.

We also think it's important that there... a one-year statute of limitations has been recognized as being appropriate in many 1983 cases.

And, of course, four jurisdictions, including California, apply a one-year statute of limitations to personal injuries generally so that any determination that one year was somehow inconsistent would pose serious problems as to the applicability of Wilson to those... those states.

Unidentified Justice: Mr.... Mr. Schiff, it may work well in New York where it's easy enough, as you say, although I guess there's some contest on the point, to pick out what is the... the intentional tort statute.

But I don't know how such a line would... would play in... in other states where you may have a general personal injury statute, but then one statute for a few personal torts, another statute for a few others, another statute for still a few others.

This isn't the kind of an issue I'm anxious to have a lot of litigation about.

Why shouldn't we have a... a clear line?

And it seems to me the general personal injury statute is a... is a clearer line than what you're urging upon us, maybe not clearer in... any clearer in New York State, but we're talking about all the courts having to apply this in 50 states and with changing statutes in 50 states over the years.

Mr. Schiff: Well, our position is that the... the line that should be chosen is... is not solely to try to determine whether a statute applies to all intentional torts.

Our position is that the one that should be chosen in a state... and I think it's not too difficult if when you do examine this appendix... is the one that encompasses assault, battery and false imprisonment.

Now, that... that... there is one that includes that plus others in at least 24 of the jurisdictions.

Now, our opponents suggest, well, there would be difficulties.

Look at Alabama.

But Alabama is a case where the Eleventh Circuit already determined that the intent... which intentional tort statute should apply.

I... I think the debate below as to whether New York statute was general or... or not general is somewhat misconceived and... because however you look at it, the New York statute admittedly covers the... the important personal intentional torts in... in view of the history of the Klan Act.

I'm not sure that I would agree either that--

Unidentified Justice: xxx that the statute you're referring to covers all intentional torts?

Mr. Schiff: --Well, I think virtually all.

Our opponents may be correct that on some malpractice cases that the malpractice litigation, whether it's intentional or not, would take precedence, but--

Unidentified Justice: And do you think that statute covers only intentional torts?

Mr. Schiff: --Which?

I'm sorry.

Unidentified Justice: The one you're... the one you think should apply.

Does it cover only intentional--

Mr. Schiff: Yes, it only covers intentional torts.

Unidentified Justice: --But it doesn't say intentional torts.

It just lists particular torts.

Mr. Schiff: It lists... yes, that's right.

Unidentified Justice: And the other... and the other statutes don't say unintentional either, do they?

Mr. Schiff: No, no.

It's not broken down language-wise in that context.

I should add in finishing the previous question that I don't think it's clear that you have a simple solution if you decide to pick so-called general personal injury statutes.

I believe Justice O'Connor pointed out in her dissent in Wilson that the Tenth Circuit... again, the case arising from Colorado... I don't quite remember the name... Mishmash or something like that.

The Court did not choose either personal injury statute, but chose one that applied residually.

And as I say, one of the difficulties with applying a... the general personal injury statute that you would be picking a statute that essentially is covering torts that would not possibly give rise to 1983 actions.

And we don't have good statistics, but there are statistics listed in the appendix to the District Court opinion in the Hobson case in the District of Columbia, which is cited in our... in Respondent's brief.

And if you look at the actual statistics that Judge Oberdorfer had developed in the District of Columbia, I suggest that it shows... that there isn't a great deal left of the suits although it's not entirely easy to tell if you carve out the negligence and product liability cases.

I'd like to turn to the issue of whether the decision here should be applied prospectively only.

It is our position that since this Court would be making a new decision as to the appropriate statute of limitations to be chosen, that the principle described by this Court in Stovall v. Denno in 388 U.S. should apply, and that since this Court only decides concrete cases, it would have to apply the decision here to this case because otherwise there would be no case.

The last term there were two cases involving the statute of limitations under Section 1981.

Those decisions are perfectly consistent with our position here.

In Goodman v. Lukens Steel, the statute of limitations was applied retroactively, but not necessarily on this analysis.

However, the reason in that case at least or the facts in that case show that the statute of limitations would not have been fully dispositive of the case, but it simply determined the length of time for which damages would be awarded.

There was also injunctive relief so that there was a concrete case regardless of what the decision was in the statute of limitations.

The other case is St. Francis College.

That case... both of those cases, Goodman and St. Francis College, both came from the Third Circuit, a... but they were decided in reverse order by this Court from the way they were decided by the Third Circuit.

In the Third Circuit... the Third Circuit had first decided that the personal injury statute of limitations should apply to 1983 actions in Goodman.

Then the St. Francis College case came along, and they said we are now applying the Goodman rule to a later case and therefore Chevron Oil v. Huson applied.

And that certainly was correct.

But when it got to this Court, this Court simply assumed for the purpose of St. Francis that... that the personal injury statute would apply and it wasn't... didn't make that decision.

So, it applied the same principle and it actually decided the merits of the 19... 1981 statute of limitations and the later Goodman case.

In these circumstances, neither of those cases in any way departs from our view that the decision here should be applied in this case.

Unless you have further questions, I'd like to reserve the rest of my time.

Unidentified Justice: Thank you, Mr. Schiff.

We'll hear now from you, Mr. Kimerling.

ORAL ARGUMENT OF KENNETH KIMERLING ON BEHALF OF THE RESPONDENT

Mr. Kimerling: Mr. Chief Justice, may it please the Court:

What Petitioners seek here will undermine everything that this Court sought to accomplish in Wilson v. Garcia.

The explicit motivating purpose of the Wilson decision was to provide some uniformity and provide some certainty to the question of the statutes of limitations under 1983 actions and therefore avoid unnecessary and time consuming litigation in 1983 claims.

At that time, the lower courts followed a myriad of different practices in determining the appropriate state statute of limitations.

Some courts looked at the specific factual allegations in a complaint and tried to match them with state common law and statutory claims.

Other courts took a particular statute of limitations and said this applies in all 1983 claims, but these decisions varied from panel to panel and from circuit to circuit.

What Petitioners seek here will recreate that type of unnecessary and time-consuming litigation because there is not but one statute of limitations that covers intentional torts, but two in 32 or 33 states that we've looked at and put in our appendix.

And there is no clear, bright line to deciding among them.

In New York, for example, if a prisoner has an Eighth Amendment claim against a prison doctor, do you use the two and a half year statute of limitations that applies for personal injury claimants against doctors, or do you use the one-year provision that applies to certain specific torts?

Well, if... if you go along and say, well, chose the one that... that specifies intentional torts, what do you do in Alabama where there's a six-year provision that specifies three intentional torts and a two-year provision that specifies three or more intentional torts?

And it's not simply a question of choosing which covers the most for in Alabama and in other states, often they're equally divided.

And if you're going to go to most, how do you count them?

In... in Arizona, for example, there is a general provision that covers assault and battery, as there is in Texas, but it doesn't specify it.

But there is--

Unidentified Justice: Do you suppose it might narrow the choice a little bit to say intentional tort is the category you rely on?

Mr. Kimerling: --It... it would not, Your Honor.

Unidentified Justice: Why not?

Mr. Kimerling: Because--

Unidentified Justice: Well, it wouldn't... at least it wouldn't be possible to apply statutes of limitations governing unintentional torts.

Mr. Kimerling: --Well, I... I don't think that that's what will happen because many statutes cover both.

As you pointed out in your question, there are statutes that cover intentional and unintentional torts, as the Arizona provision does.

Unidentified Justice: What if we just said assault and battery?

There's... if you apply the general... the general statute unless there's a separate one for assault and battery.

Would that... would that create any problem?

Mr. Kimerling: I... I don't think that would create any problems, but I think that line would be an arbitrary one and not consistent at all with the statutory history of Section 1983.

Unidentified Justice: Well, I'm not sure it's any more arbitrary than just the general tort statute if that general tort statute wouldn't be... wouldn't be covering, as it apparently would not in New York, the... the majority of claims that... that 1983 was concerned with.

Mr. Kimerling: That's... I think that's important misconception of what 1983 was concerned about.

Nineteen eighty-three was not concerned about the direct violence of the Klan.

There's a quote that we provide in our brief right out of Monroe v. Pape.

In Monroe v. Pape says:

"While the main scourge of the evil... perhaps the leading one... was the Ku Klux Klan, the remedy created in 1983 was not a remedy against it or its members, but against those representing a state in some capacity who were unable or unwilling to enforce a state law. "

So that the assault and battery provisions in an historic context aren't the provisions that were the provisions that were most analogous to the types of claims that would have been brought under 1983 and certainly they don't make any sense in the present context of the myriad--

Unidentified Justice: xxx think Wilson made much sense then.

Mr. Kimerling: --Excuse me?

Unidentified Justice: I wouldn't think you would think that Wilson made much sense.

Mr. Kimerling: Oh, absolutely.

We agree that Wilson makes a lot of sense.

Wilson said let's have a broad characterization and it broadly defined 1983 as to cover personal injury.

But to go much narrower than that and to try to get a... a tighter mesh or fix would create the same lack of unity and the lack of certainty that this Court tried to obtain and could... and did obtain in Wilson by... by designating the... the statute of limitation that covered the general remedy for personal injury actions.

This Court found in Wilson that Congress would have characterized 1983 as providing a general remedy for injuries to personal rights.

And I think that's the guiding light that we point to, and that's why we think... we agree with--

Unidentified Justice: Since... since our decision in Daniels and Davidson, certainly any due process claims sound very much in intent and not in mere negligence.

Mr. Kimerling: --Well--

Unidentified Justice: And those are brought under 1983.

Mr. Kimerling: --I... I think that... that when you try to take the word "intentional tort" and use that word "intent" and apply it in a constitutional context, you have two different words with two different meanings.

Certainly when you talk about one of the primary concerns of 1983, which was the denial of equal protection and you talk about intent, you're not talking about the kind of intent that's involved in an intentional tort.

Unidentified Justice: No, but my question to you is about the due process intent, not equal protection.

Mr. Kimerling: Well, in the substantive due process area--

Unidentified Justice: But a procedural due process.

Mr. Kimerling: --In procedural due process, I don't think that that's the answer and I don't think it has been resolved in... in those two cases.

Unidentified Justice: You don't think what's the answer?

Mr. Kimerling: That is that... that intent is the... has been determined.

Unidentified Justice: Well, certainly negligence is not there.

Mr. Kimerling: I don't think in the area of procedural due process that this Court has determined that intent is an element in the denial--

Unidentified Justice: No, but it is determined that simple negligence is not enough.

Mr. Kimerling: --Well, I'm not sure that that's the... but if... that's not my reading of those cases.

But, nevertheless, the... the content and... and the use of intent in most constitutional settings has no relationship to its use in intentional torts.

And it's... and it really is a question of statutory interpretation... excuse me... statutory interpretation.

And if you look back at 1871 and you look back at the statutes of limitations in effect at that time, you see that they retained a lot of their English roots in that they were divided between statutes of limitations that covered trespass claims, assault, battery and false imprisonment and statutes of limitations that covered action on a case, which were the general personal injury provisions of the time.

And the difference between trespass and action on the case is not the difference between intent and non-intent.

Rather, it's the difference between direct, physical force, which is a trespass, and indirect injury.

One of the classic examples that the courts used and continue to use to describe that difference is a situation where someone throws a log onto the highway.

If you're hit by that log, you have a claim for trespass because it's a direct, physical force injury.

If you come along the highway later and trip over it, you have an action on the case.

And if you look at... at what was at issue in... in 1871, it wasn't these tortuous acts of the Klan.

Yes, they were the catalyst, but what they were trying to do was to insure that the state provided an adequate and effective remedy for these Klan acts.

And if the... if the state failed to do that, that would be an indirect injury because there would be no direct, physical force so that the current day descendants of the trespass provisions are the intentional tort provisions, and the current day provisions of the action on the case are... are the general provisions.

And I think it's significant that at that time they... in Section 1986, they referred to action on the case as the appropriate remedy.

Section 1986... it was passed as part of this package, the Sherman Amendment... covers the situation where a state or local government is aware of some purported Klan activity, is capable of doing something to stop it, and takes no action.

The person who is injured by that Klan action can then sue that state or local government.

And Congress specified action on the case.

And this is a parallel type of remedy, although much more limited in scope than 1983, but it's in recognition that Congress was thinking in these terms and therefore the present day descendants of those provisions... the action... excuse me... the general remedy for... for personal injuries are the ones that Congress would have designated at that time.

And not only are... are these provisions the most analogous, but they're the most appropriate.

And appropriateness, as this Court defined in Burnett v. Grattan, means that a statute of limitations must take into account the goals and policies underlying Section 1983 and as well take into account the practicalities of litigation.

And Congress in 1871 was seeking a broad and effective remedy.

It was a unique remedy, one... one that didn't exist and they wanted to ensure that the rights under the Bill of Rights passed on to... to everyone through the Fourteenth Amendment were being enforced.

It would be totally inappropriate and totally inconsistent to attach that broad remedy to some truncated statutory period.

The... if you look at New York's statutory scheme, for example, you see that there's a one-year provision for some of these specified intentional torts, a three-year provision for the general remedy for personal injury, a three-year provision for civil rights claims against state actors, and a six-year provision for certain constitutional claims.

That's New York's own view of the... of the relative importance of those different types of claims.

This... this Court has pointed out that statutes of limitations are a weighing process.

What is a legislature's interest in the vindication of a certain claim as opposed to the interests and repose?

And that array represents New York's interest, and it shows that these kinds of intentional torts are at the bottom.

Well, certainly Congress in 1871 didn't view these as the least important of its remedies.

This was the most important.

This is the Constitution of the United States.

This is the Bill of Rights.

And if anybody should have a right to vindicate that, it should... it should be--

Unidentified Justice: Do you think the New York... by New York's providing one year for an assault and three years for negligence, it means New York is less interested in seeing a claim for assault vindicated than a claim for negligence vindicated?

Mr. Kimerling: --I... I think that's in part the answer, and the other answer is that... that New York believes that assault types of claims are quickly known and therefore can be quickly brought.

That's what the state legislature said in 1960 when it reduced this intentional tort statute of limitations from two years to one.

And... and it goes also to this Burton v. Grattan equation or standard for appropriateness.

What is the question about whether or not it takes into account the practicalities of litigation?

We know from this Court's decision in Felder v. Casey last term that in due process and equal protection claims, which are, after all, the heart of 1983 and the heart of the Fourteenth Amendment what... which... which it was enforcing these kinds of claims, often there is a lag time between the actual injury and the time that the person who has been injured recognizes that he has a constitutional claim.

That's just not consistent with what New York feels about its intentional torts.

Unidentified Justice: Well, various states have adopted a one-year personal injury general statute of limitations, haven't... haven't they?

Mr. Kimerling: That's correct.

Unidentified Justice: And they're... they're not inadequate, are they, in your view?

Mr. Kimerling: I... I don't think, one, you have to reach that question, but yes, they are inadequate in our view.

Unidentified Justice: So, you would have us hold that even those states that have opted clearly for a one-year statute of limitations can't do that.

Mr. Kimerling: I don't think you have to reach that question.

Unidentified Justice: Well, it's an exception then to Wilson v. Garcia if a state has a one-year general statute?

Mr. Kimerling: I'm sorry.

I didn't--

Unidentified Justice: Well, I'm just really following up on--

Mr. Kimerling: --[inaudible].

Unidentified Justice: --Justice O'Connor's question.

You say that Wilson v. Garcia doesn't apply if a state has a general personal injury statute of limitations of one year?

Mr. Kimerling: I... I think that there is a three-step process--

Unidentified Justice: Is this derived from Wilson v. Garcia... what you're talking about?

Mr. Kimerling: --Yes.

Yes, it is.

By that I mean under Section 1988, which is the section that you use to choose the appropriate state statute of limitations, the third step is whether or not the particular state statute, if it's the most analogous and the most appropriate, is consistent with federal law.

And it's our position that a one-year statute would be inconsistent with federal law.

Unidentified Justice: Well, Congress itself adopted a one-year statute of limitations for Section 1986, didn't it?

Mr. Kimerling: That's correct, and I think that's why it is inconsistent with 1983.

Section 1986 was the Sherman Amendment.

That was the most controversial element of 18... of the 1871 legislation.

That's the provision that everybody was debating and fighting over, and it was the subject of numerous compromises.

That bill, the Sherman Amendment, went back to conference twice, and it was only coming out of the conference, the joint conference, the second time that it had this one-year provision.

At that time, if you had looked at the action on the case, statutes of limitations, which were the ones that Congress said should be the form of action, every state I think except four had more than one year as a statute of limitations.

Therefore, it was clearly a restricting provision as the other amendments to the Sherman Amendment were restricting provisions.

Unidentified Justice: Mr. Kimerling, it seems to me your position on this... the one position consumes the other.

If you say we should strike down everyone that's... that's one year anyway, then what difference does it make whether... whether we agree with New York State and... and select a... select a statute that in many instances will be a one-year statute?

Whenever it is we will ignore it anyway.

Right?

Mr. Kimerling: That's our... our position is that... that... that it's inappropriate and inconsistent to choose the one-year statute in the first instance.

Unidentified Justice: Whichever we choose, you're going to tell us to ignore it whenever it's one year.

Right?

Mr. Kimerling: Obviously, our position is whatever you choose, we win.

I think that's the... but if we choose that, I don't think not on a... on a... on a cynical basis, but I think on a... on a very consistent basis, that one year simply doesn't take into account the practicalities and the purposes underlying Section 1983.

And going back to--

Unidentified Justice: But as Justice O'Connor says, no choice available to us will produce that happy state of affairs anyway.

Mr. Kimerling: --I'm sorry.

I don't understand your question.

Unidentified Justice: There's... there's no possible rule we can adopt that will result in the selection in all states of a statute that is more than one year.

Right?

Mr. Kimerling: That's right.

That's right.

Unidentified Justice: So?

Mr. Kimerling: So, in some subsequent cases, you may be faced with the question as to whether one year is long enough.

And you'll have to reach that question in those cases, but you don't have to reach it here if you decide that the general remedy for personal injury claims is... is the appropriate one.

But--

Unidentified Justice: Mr. Kimerling, are you suggesting that our search for simplicity that Justice O'Connor thought was illusory, really is illusory if we're going to get this issue next?

Mr. Kimerling: --No, not at all.

I think... I think that... that you've gone far down the road to certainty and uniformity.

Yes, there may be subsequent questions as to whether or not a one-year provision is consistent or not.

We know that... that in New York the Court of Appeals held in 1981 that anything less than two years would not be consistent and based that two-year cutoff on the fact that the Federal Tort Claims Act provides that in two years you have... you have two years to file an administrative charge.

It would certainly be... to my mind, it doesn't make any sense to say to somebody, if you get hit by a mail truck, you have two years to file an administrative charge.

But if your First Amendment rights are violated, that claim gets extinguished in one year.

That doesn't make sense.

That's inconsistent it seems to me.

Unidentified Justice: Do you happen to know... in her dissent in the Wilson case Justice O'Connor pointed out there had been several bills introduced in Congress in recent years to prescribe a single statute of limitations for 1983.

Do you know what periods of limitations most of those bills--

Mr. Kimerling: I... I... I researched some of them, and I didn't try to figure out which ones... they went... depending on who introduced them, they were short or long.

And I don't have to tell you the names.

But they came out of the Senate Judiciary.

But the... the... the... the... the one-year provision I think the fact that it was attached to Section 1986, the most controversial provision of this legislation, one in which the sponsor of that legislation, Senator Thurmond and his chief opponent, Senator Thurmond, both concurred after it had gone through this amendment process, one of which was the attachment of this truncated statutory period, that it wasn't worth the paper it's written on.

And if you look probably back in... in... in the annotations, there are very, very few 1986 cases ever been brought.

And I think there's substantial basis to reject it, but again I don't think you have to reach that question here, obviously, because here you have a choice.

And the choice is between a general personal injury provision and a specified intentional tort provision.

And I think the guidance that this Court provided in Wilson was to choose the one that generally covered personal injuries.

After all, we're not just talking about one type of constitutional claim.

We're talking about a broad range of claims that... that are covered by 1983.

The previous case, the Texas Monthly case... what kind of intentional tort is involved there?

The... the... to... to try to pin that down to, as Justice Scalia suggested, to assault and battery makes no sense, but to try to say that it covers personal injury generally I think makes a lot of sense and it... and it does accomplish primarily what this Court sought to accomplish in Wilson v. Garcia which was to put an end to this litigation by giving some uniformity and some certainty to that decision, a uniformity and certainty that's consistent with the purposes of 1983 and consistent with the legislative history.

If the Court has no further questions, I thank you for your attention.

Unidentified Justice: --Thank you, Mr. Kimerling.

Mr. Schiff, you have six minutes.

REBUTTAL ARGUMENT OF PETER H. SCHIFF ON BEHALF OF THE PETITIONERS

Mr. Schiff: Unless the Court has further questions, I would only ask the Court to reverse and direct that the complaint be dismissed.

Thank you.

Chief Justice William H. Rehnquist: Very well.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: Justice Marshall has two opinions of the Court to announce.

Argument of Justice Marshall

Mr. Marshall: In the first, Owens against Okure 8756, is on writ of certiorari to the Court of Appeals for the Second Circuit.

In this case, we hold that thoughts entertaining claims brought under 28 USC 1983 should borrow the frestoral of general personal injuries state statute of limitations and the Court of Appeals judgment is thereby affirmed.