Hart v. Miller4/19/2000
xually - it is not necessary to touch her for assault as that would be battery, not assault.
[ ] Miller also clearly invaded Hart's privacy after 11:00 o'clock at night as that term is defined (at page 16 of Hart's appellate brief) in Krueger v. Austad, 1996 SD 26, , 545 NW2d 205, 215-16:
An actionable violation of the right of privacy has been acknowledged by this court to be:
The unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. (quoting Truxes v. Kenco Enterprises, Inc., 80 SD 104, 119 NW2d 914, 916 (1963) (citation omitted)). Therefore, the majority's claim that Hart failed to cite authority is clearly wrong.
[ ] Therefore, summary judgment on these state law claims should not have been granted and we should reverse and remand Issue 3 for trial.
AMUNDSON, Justice (concurring in part, dissenting in part).
[ ] I respectfully dissent on issue one.
[ ] The primary purpose of 42 USC § 1983 is "to aid in the 'preservation of human liberty and human rights.'" Jackson v. Griffin, 1986 WL 6920, *3 (NDIll 1986) (quoting Owen v City of Independence, 445 US 622, 636, 100 SCt 1398, 1408, 63 LEd2d 673, 684 (1980) (quoting Congressional Globe, 42d Cong., 1st Sess. App. 68 (1871) (Rep. Shellabarger))). Further, " section 1983 stands for the commitment that American society 'is to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful.'" Id. (quoting Blackmun, Harry A., Section 1983 and Federal Protection of Individual Rights - Will the Statute Remain Alive or Fade Away?, 60 NYULRev 1, 28 (1985)).
[ ] To establish a cause of action under § 1983, one must prove two elements. "First, a plaintiff must allege that defendant or defendants acted under color of state or territorial law. Second, the plaintiff must allege that the action taken deprived him of a federal right." Id. (quoting Gomez v. Toledo, 446 US 635, 640, 100 SCt 1920, 1923, 64 LEd2d 572, 577 (1980); Flagg Bros., Inc. v. Brooks, 436 US 149, 155, 98 SCt 1729, 1732, 56 LEd2d 185, 193 (1978); Texaco Inc. v. Pennzoil Co., 784 F2d 1133, 1145 (2dCir 1986); Barnier v. Szentmiklosi, 565 FSupp 869, 870 (EDMich 1983)).
[ ] Under certain circumstances, a public officer, such as a police officer in the present case, may raise the defense of "qualified immunity" to avoid liability under § 1983. We have previously held that " o find whether qualified immunity applies, the test is to ask if the officer's conduct violated clearly established statutory or constitutional rights a reasonable officer would have known at the time." Horne v. Crozier, 1997 SD 65, , 565 NW2d 50, 52 (citing Harlow v. Fitzgerald, 457 US 800, 818, 102 SCt 2727, 2738, 73 LEd2d 396, 410 (1982) (citations omitted)). In the present case, to overcome the first element of the Horne test, Hart must "allege the violation of a clearly established constitutional or statutory right." See Comfort v. Town of Pittsfield, 924 FSupp 1219, 1227 (DMaine 1996) (emphasis added). If the right which is alleged to have been violated is clearly established, "the court assumes that the police officer in question knew of this right." Id. Further, "if the right is clearly established, qualified immunity will only be denied if a reasonable officer should have known that the challenged conduct violated that established right." Id. (citing Rodriguez v. Comas, 888 F2d 899, 901 (1stCir 1989))
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