BROWNING, Circuit Judge.
This appeal is taken from an order dismissing appellant's complaint under the Civil Rights Act.
The complaint included the following allegations: Appellant went to the Los Angeles International Airport to distribute a religious tract discussing national and international issues. His purpose in part was to protest the arrival there of Russian Deputy Premier Anastas Mikoyan. As he was crossing the street in a pedestrian crosswalk leading from the public parking lot to a sidewalk used by the general public, appellant was seized by appellees, police officers of the City of Los Angeles, who took the tracts from him, tearing some into pieces and keeping the others. Appellees detained appellant for ten minutes, then released him. Appellant demanded his tracts, but they were not returned. He was not told that he was under arrest, nor was any charge filed against him. Appellees had neither a search warrant nor warrant for arrest.
Appellant further alleged that the acts of the officers were done under color of the laws of the State of California and the municipality of Los Angeles; and that these acts deprived appellant of rights secured to him by the Fourteenth Amendment to the Constitution of the United States and the provisions of 42 U. S.C.A. § 1983, including the right to free speech and free exercise of religion, the right not to be deprived of property without due process of law, the right to be secure against unreasonable searches and seizures, and the privilege of discussing national issues.
The complaint was dismissed upon the following grounds: (1) the complaint failed to state a claim upon which relief could be granted, in that it did not allege that the police officers acted with the purpose of discriminating between persons or classes of persons; (2) as police officers of the City of Los Angeles, appellees were immune from civil prosecution; and (3) the action was barred by the applicable statute of limitations.
1. Our decision in Cohen v. Norris,
Moreover, considering only those Fourteenth Amendment rights which find their origin in the First Amendment, it cannot be said that "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"
Since it is not disputed that appellees acted "under color of State law," the municipal ordinances
2. The complaint was filed January 17, 1961. The incident upon
There are no decisions directly in point, and those most nearly analogous are inconclusive. The Court of Appeals for the Second Circuit, without discussion, has applied the New York "liability created by statute" limitation to an action under the Civil Rights Act,
In determining which period of limitation to apply to an action under a particular federal statute, the federal court accepts the state's interpretation of its own statutes of limitations,
The California courts have held that an action is based "upon a liability created by statute," within the meaning of Section 338(1), if the liability would not exist but for statute. Or, conversely, an action is not based "upon a liability created by statute" if the right is one which
Section 1983 of the Civil Rights Act clearly creates rights and imposes obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course give rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under Section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability.
Practical considerations also support the selection of California's "liability created by statute" limitation. According to appellees' analysis, the single cause of action under the Civil Rights Act alleged in the complaint includes three distinct causes of action under State law and calls for the application of two distinct State statutes of limitations;
Reversed and remanded.
In other cases involving the Civil Rights Act, a limitation for actions based upon a "liability created by statute" was not provided for in the state statutes. See Jackson v. Duke, 259 F.2d 3 (5th Cir. 1958); Mohler v. Miller, 235 F.2d 153 (6th Cir. 1956); Weiner v. City of Philadelphia, 184 F.Supp. 795 (E.D.Pa.1960); Johnson v. Yeilding, 165 F.Supp. 76 (N.D.Ala. 1958); Kenney v. Killian, 133 F.Supp. 571 (W.D.Mich.1955), aff'd but issue "pretermitted," 232 F.2d 288, 290 (6th Cir. 1956); Francis v. Lyman, 108 F.Supp. 884 (D.Mass.1952). See also O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980 (1914).
It is generally true that rights created by federal statutes do not have exact common-law equivalents, and for this reason, as one commentator has observed, the "`liability created by statute' provision has almost invariably been chosen by federal courts sitting in states which include it in their limitation statutes." 53 Colum.L.Rev. 68, 69 (1953). See, e. g., Fischman v. Raytheon Mfg. Co., 188 F.2d 783 (2d Cir. 1951); Suckow Borax Mines Consol., Inc. v. Borax Consol., Ltd., 185 F.2d 196, 207 (9th Cir. 1950); Culver v. Bell & Loffland, Inc., 146 F.2d 29 (9th Cir. 1944); Donald v. Bird, 85 F.2d 663 (9th Cir. 1936); Alvado v. General Motors Corp., 194 F.Supp. 314 (S.D. N.Y.1961); Farris v. San Diego Fed. Sav. & Loan Ass'n, 140 F.Supp. 703 (S.D.Cal. 1956). See also 63 Harv.L.Rev. 1176, 1196 (1950).