Wainwright v. City of New Orleans, 392 U.S. 598 (1968)

Author: Justice Harlan

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Wainwright v. City of New Orleans, 392 U.S. 598 (1968)

MR. JUSTICE HARLAN, concurring.

I wish to state in a few words my reasons for joining in the dismissal of this writ as improvidently granted. For reasons stated in the dissenting opinion of my Brother DOUGLAS, I agree that the dispositive federal issue in this case is whether the petitioner used an unreasonable amount of force in resisting what, on this record, must be regarded as an illegal attempt by the police to search his person. I find this record too opaque to permit any satisfactory adjudication of that question. See Rescue Army v. Municipal Court, 331 U.S. 549, 568-575.

1. I do not, as my Brothers HARLAN and FORTAS suggest, consider the record too sketchy for determining the degree of force employed by petitioner in resisting the officers. The record discloses that no violence and little force were used by petitioner.

Lieutenant Martello, the officer apparently in charge of the station to which petitioner was taken, testified as follows:

Mr. Wainwright refused to take his jacket off . . . , so I instructed him I would have the jacket removed by the doorman.

He again refused. He walked into a corner, grabbed his jacket by his hands, folding his arms, and he said, "If you want this jacket off, take it off."

* * * *

Officer O’Rourke and Officer Gilford asked him to take the jacket off and he didn’t respond, so they physically took the jacket off of him. He done everything in his power to keep them from removing the jacket. In this operation, the officers were bounced from wall to wall physically, and, with the assistance of a couple of other police officers, they put handcuffs on one of his arms, and they removed his jacket.

On cross-examination, Martello elaborated:

Q. You testified that Mr. Wainwright crouched in a corner, held his jacket to him, now what did he do when Officers O’Rourke and Gilford tried to remove it?

A. He tried to keep it on by holding it.

Q. How?

A. By folding his arms (demonstrates).

Q. He didn’t do anything else?

A. No, not to my knowledge.

Q. If Officer O’Rourke and Officer Gilford got thrown around the room, it was through their own effort?

A. No, it was the combined effort of Mr. Wainwright in his refusal to remove the jacket. Force was necessary to remove the jacket by the officers.

Q. He didn’t do anything but try to hold the jacket on?

A. They tried to take it off, and he was trying to keep the jacket on.

Q. He held very still?

A. No, it was a struggle.

Q. Did he strike out at the officers?

A. No.

Q. Did he kick the officers?

A. I didn’t see him. He could have. I didn’t see him. It wasn’t visible to me.

Later, in answer to a question posed by the court, Martello stated that none of the four officers who removed petitioner’s jacket suffered any "marks, bruises, or torn clothing."

On cross-examination, Officer O’Rourke testified as follows:

Q. How was he [petitioner] pushing you around? Did he strike out at someone?

A. No. Like a football player going through a line.

Q. Did he try to run?

A. No, dancing from wall to wall.

2. What transpired after the arrest for vagrancy demonstrates that the officers merely suspected petitioner was involved in the murder because of a superficial resemblance to the wanted man. Officers testified that the reason they wished to remove petitioner’s jacket after he was in custody was to see if his arm was tattooed -- that is, to ascertain if petitioner’s resemblance to the murder suspect was more than superficial.


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Chicago: Harlan, "Harlan, J., Concurring," Wainwright v. City of New Orleans, 392 U.S. 598 (1968) in 392 U.S. 598 Original Sources, accessed August 17, 2022, http://www.originalsources.com/Document.aspx?DocID=51IRJ7Q7S4SKPSK.

MLA: Harlan. "Harlan, J., Concurring." Wainwright v. City of New Orleans, 392 U.S. 598 (1968), in 392 U.S. 598, Original Sources. 17 Aug. 2022. http://www.originalsources.com/Document.aspx?DocID=51IRJ7Q7S4SKPSK.

Harvard: Harlan, 'Harlan, J., Concurring' in Wainwright v. City of New Orleans, 392 U.S. 598 (1968). cited in 1968, 392 U.S. 598. Original Sources, retrieved 17 August 2022, from http://www.originalsources.com/Document.aspx?DocID=51IRJ7Q7S4SKPSK.