AINSWORTH, Circuit Judge:
Plaintiffs, John L. Broadway, Levis Broadway, James Broadway, Joan McGraw and Robert Segall, appeal from a summary judgment in favor of defendants, City of Montgomery, Alabama, and two of its police officers, Don R. Terry and James Lisenby.
The original complaint filed on January 14, 1974 by John L. Broadway sought damages and injunctive relief under 42 U.S.C. § 1983, et seq. and 18 U.S.C. § 2520.
John L. Broadway was arrested on June 6, 1973 on separate Alabama state charges pertaining to possession of cocaine and possession of marijuana, which were later docketed in the Circuit Court of Montgomery County, Alabama, under Case Nos. 9029 and 9030. Lisenby, who was working under the supervision of Terry, participated in the arrest.
On August 3, 1973, John L. Broadway discovered a wire leading from the telephone pole in front of his residence to a tape recorder in a nearby wooded area. He subsequently turned over the equipment to the Federal Bureau of Investigation.
In defense of the state criminal charges against him, John L. Broadway moved in state court to suppress the evidence on the ground of illegal seizure as a result of the wiretap. The motion to suppress was denied by the state court after an extensive hearing held on November 13 and 14, 1973. John L. Broadway subsequently went to trial but pleaded guilty at the close of the state's case to possession of cocaine. He failed to appear for sentencing, jumped bail, and since April 18, 1974 has been a fugitive from justice. The state charge against him for possession of marijuana is still pending.
After numerous amendments to the complaint and utilization of various discovery devices by the parties, defendants moved for summary judgment based on the pleadings and depositions of record. In opposition thereto plaintiffs submitted an affidavit of counsel-plaintiff Segall and the transcript from the hearing on the motion to suppress in the state criminal cases. The District Court granted the motion for summary judgment and this appeal followed.
JOHN L. BROADWAY'S CLAIMS
John L. Broadway, being a fugitive from justice, is not entitled to call on the resources of an appellate court for a determination of his case. See Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Van Blaricom v. Forscht, 5 Cir., 1974, 490 F.2d 461; Fratus v. United States, 5 Cir., 1974, 496 F.2d 1190; United States v. Shelton, 5 Cir., 1975, 508 F.2d 797. It is immaterial that the custody from which he fled is that of another sovereign. United States v. Shelton, 5 Cir., 1973, 482 F.2d 848, cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482 (1973). We therefore dismiss the appeal as to John L. Broadway.
CLAIMS OF ADDITIONAL PLAINTIFFS
Plaintiffs' claim under 18 U.S.C. § 2520
Terry and Lisenby testified that they learned about the wiretap only after it was discovered by John L. Broadway. This testimony is uncontroverted by any admissible evidence. In order to prevail under 18 U.S.C. § 2520 the remaining appellants must show that the oral communications were in fact intercepted, disclosed or used by defendants.
"Interception," as the term is used in 18 U.S.C. § 2520, is defined as:
"Aural" is defined as "of or relating to the ear . . . or to the sense of hearing," Webster's Third New International Dictionary, G. & C. Merriam Company (1961). Depositions of appellants Levis Broadway, James Broadway and McGraw conclusively and affirmatively show that they had no factual knowledge to substantiate the charge that defendants heard or listened to the tape.
Plaintiffs' "civil rights" claim
Plaintiffs contend in general allegations without supporting authority that apart from their claim under 18 U.S.C. § 2520, their civil rights were violated by the actual placing of the wiretap by defendants. In an attempt to rebut the testimony of Terry and Lisenby denying participation, plaintiffs rely on testimony from the hearing on the motion to suppress of David W. Crosland, former District Attorney in charge of the criminal prosecutions against John
The obvious function of summary judgment is to avoid a useless trial. Defendants have made a convincing showing that no genuine issue as to any material fact exists and that they are entitled to judgment as a matter of law; plaintiffs, on the other hand, have failed to come forward with the necessary countervailing evidence to defeat summary judgment.
The appeal of John L. Broadway is DISMISSED; judgment in respect to the remaining plaintiffs is AFFIRMED.
FootNotes
She later responded to the same question:
Joan McGraw testified:
James E. Broadway testified:
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