James F. Regan, Plaintiff-appellant, v. Joseph F. Sullivan, George Van Nostrand, Francis R. Jules,and Donald J. Grattan, Defendants-appellees,andjohn Callaghan, Individually and As a Member of the New Yorkcity Police Department, James M. Harkins, Individually Andas a Member of the New York City Police Department Andhoward Greenwald, Individually and As a Member of the Newyork City Police Department, Defendants, 557 F.2d 300 (2d Cir. 1977)

On January 29, 1975, over one year after his arrest on November 15, 1973, appellant brought suit in the Eastern District of New York against state and federal law enforcement officers, alleging a violation of his Constitutional rights on the basis of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), a conspiracy to deprive him of the equal protection of the laws under 42 U.S.C. § 1985(3), and various acts tortious under New York law. On the motion of the federal defendants Judge Neaher dismissed the Bivens claim on the ground that it was time-barred under N.Y.C.P.L.R. § 215(1), which provides that an action against "a sheriff, coroner or constable" based on conduct in his official capacity must be commenced within one year. The claim under § 1985(3) was dismissed for failure to allege discriminatory animus, and the pendent state claims as time-barred under N.Y.C.P.L.R. § 215(3), which provides a one-year period for actions based on intentional torts. Because we find N.Y.C.P.L.R. § 215(1) inapplicable to the instant suit and because New York's "single publication" rule does not extend to part of appellant's state libel claim, we reverse in part and remand for further proceedings.

Appellant's complaint joined as defendants the United States, an Assistant United States Attorney (Edward Boyd), three special agents of the Federal Bureau of Investigation (Joseph F. Sullivan, George Van Nostrand, and Francis R. Jules), a U.S. Customs Agent (Donald Gratin), and three members of the New York City Police Department (John F. Callaghan, James M. Harkins and Howard Greenwald), alleging violations of his Constitutional and civil rights and the commission of certain common law torts. Specifically, he alleged that the defendant law enforcement officers had, without probable cause, arrested and searched him and otherwise violated his Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendment rights, that defendant Boyd had authorized the filing of a criminal complaint against him, and that as a result of the defendants' actions there had appeared newspaper articles stating that he had been arrested and charged with robbing a warehouse. In addition to his federal claims under the Constitution and 42 U.S.C. §§ 1983 and 1985(3), appellant requested that the court exercise pendent jurisdiction over state tort claims for slander and defamation, invasion of privacy, false arrest, abuse of process, and malicious prosecution.

The district court, in an order not on appeal here, dismissed appellant's claims against the United States on the ground of sovereign immunity and against Boyd on the ground of prosecutorial immunity. The remaining federal defendants then moved to dismiss appellant's Bivens and state tort law claims as time-barred and his claim under 42 U.S.C. § 1985(3) for failure to allege discriminatory animus. The district court granted their motion, certifying its decision to this court as a final order under Rule 54(b) of the Federal Rules of Civil Procedure, from which plaintiff appeals. The suit against the city police officers continues below.DISCUSSION

Appellant first argues that the district court applied the wrong New York statute of limitations to his Bivens claim or, in the alternative, that we should formulate a federal statute of limitations for Bivens claims based on the Federal Tort Claims Act, 28 U.S.C. §§ 2401(b) & 2680(h).

Generally where "there is no specifically stated or otherwise relevant federal statute of limitations . . ., the controlling period would ordinarily be the most appropriate one provided by state law." Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S. Ct. 1716, 1721, 44 L. Ed. 2d 295 (1975). "A special federal statute of limitations is created, as a matter of federal common law, only when the need for uniformity is particularly great or when the nature of the federal right demands a particular sort of statute of limitations." Chevron Oil Co. v. Huson, 404 U.S. 97, 104, 92 S. Ct. 349, 354, 30 L. Ed. 2d 296 (1971). The threshold question here, therefore, is whether there is any special reason for the formulation or adoption of such a uniform period to govern suits against federal employees.

If a federal statute prescribing a longer period of time than those specified by some otherwise-applicable state statutes of limitations existed, there would be public policy advantages to borrowing the federal statute and applying it to a Bivens-type action. A short limitations period, such as one year, might significantly interfere with ongoing criminal investigations by the FBI and other federal law enforcement agencies. Since one of the most hotly contested issues in any Bivens action is likely to be whether the defendant officers acted with "good faith and reasonable belief in the validity of the arrest and search" Bivens, 456 F.2d 1339, 1348 (2d Cir. 1972) (on remand), once a suit is filed discovery will probably be attempted to determine whether the officers had probable cause for their actions. If the criminal investigation is still going on, revelation of the FBI's sources may seriously jeopardize the agency's investigatory efforts. Here, for example, the Attorney General has specifically ordered that the probable cause for appellant's arrest not be revealed. The defendant agents therefore find themselves in the awkward, if not untenable, position of having to argue that it is too early for this suit to go forward for discovery purposes, but too late for it to go forward for limitations purposes. Were we to apply a short state limitations period to Bivens actions, every person subject to a challengeable search or arrest would have to file suit shortly thereafter in order to preserve his rights, and considerable discovery pressures might thereby be placed on federal criminal investigations. A longer limitations period, by contrast, would allow more Bivens plaintiffs to wait until the relevant criminal investigations had run their course before bringing suit. Moreover, once the entire picture was disclosed, fewer Bivens cases might be brought.

The only federal statute that might arguably be applied to a claim of the present type is the Federal Tort Claims Act, 28 U.S.C. § 2680(h), which was amended, effective March 16, 1974, to render its two-year limitations period, 28 U.S.C. § 2401(b), applicable to Bivens -type claims against the United States. However, the amendment does not apply to the claims here since they are against federal employees, and, even if they had been asserted against the United States, they arose prior to the effective date of the amendment. Moreover, under the amendment such claims against the United States must be presented in writing to the appropriate federal agency within two years of the accrual of the cause of action and the action must be brought within six months of the denial of the claim by that agency, 28 U.S.C. § 2401. Were we to establish a limitations period of two years or less for Bivens claims against federal employees, a complainant asserting his claims shortly before the expiration of the period would have to file an action against the employee while filing a claim with the agency. He could not, however, join the agency as a defendant in his lawsuit until it denied his claim. 28 U.S.C. § 2675. Presumably the action would meanwhile have to be stayed. If and when the agency denied the claim, permission would then have to be obtained to join the agency as a defendant. Otherwise two separate suits would be required. The employee might be found liable in one but judgment be rendered for the agency in the other, which would run contrary to the purposes of § 2680(h). The problems presented are thus somewhat analogous to those presented in McAllister v. Magnolia Petroleum Co., 357 U.S. 211, 78 S. Ct. 1201, 2 L. Ed. 2d 1272 (1958), where the Court held that, in view of the practical necessity of joining a seaman's unseaworthiness and Jones Act claims in one action, a state could not apply a shorter period applicable to one when it would have the effect of barring the other. A short Bivens statute would similarly deprive plaintiffs of the full benefits of 28 U.S.C. § 2401.

Turning to New York law, there are four possibly applicable sections of New York's Civil Practice Law and Rules:

(1) § 214(2), which provides a three-year limitations period for "an action to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215."

(2) § 215(1), which provides a one-year limitations period for "an action against a sheriff, coroner or constable, upon a liability incurred by him doing an act in his official capacity . . .."

(3) § 215(3), which provides the same short period for intentional common law torts.

(4) § 213(1), which provides a six-year period for "an action for which no limitation is specifically prescribed by law."

Appellant's action would be timely if either § 214(2) or § 213(1) applied. The question, therefore, is whether either of the one-year provisions, §§ 215(1) or 215(3) applies.

The district court held that § 215(3), which provides a one-year period for common law intentional torts and for violations of a statutory right to privacy,¹  is not applicable to a Bivens claim brought directly under the Constitution. We agree. As the Supreme Court stated in Bivens, 403 U.S. 388, 394, 91 S. Ct. 1999, 2003, 29 L. Ed. 2d 619 (1971):

"The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile."

Although we have never explicitly considered this issue, in Ortiz v. LaVallee, 442 F.2d 912 (2d Cir. 1971), where it was alleged that prison officials had beaten and stabbed the plaintiff, we applied the three-year limitation provided by § 214(2) rather than the one-year period specified by § 215(3). Similarly, in Kaiser v. Cahn, 510 F.2d 282 (2d Cir. 1974), we applied § 214(2) to a claim that a prosecutor had deliberately denied the plaintiff a fair trial by maliciously releasing trial evidence to the press beforehand. Other circuits have held one-year common law tort statutes similar to § 215(3) inapplicable to similar federal claims against police officers. See Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962); Glasscoe v. Howell, 431 F.2d 863 (8th Cir. 1971). The Cremins court, 308 F.2d at 190, stated:

"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. As Mr. Justice Harlan recently suggested, 'a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.' "Although we agree with the district court's holding that § 215(3) is inapplicable, we cannot agree that appellant's Bivens claim against federal law enforcement officers is analogous to a claim against "a sheriff, coroner or constable" under § 215(1), which must be filed within one year. Appellees apparently concede that the language of § 215(1) cannot be broadly read to cover all, or even most, law enforcement officers. However, they offer a rather circuitous argument in support of their contention that it should apply to FBI and U.S. Customs agents. First they assert that indemnification is provided for all police officers other than sheriffs, constables and coroners by N.Y. General Municipal Law §§ 50-j and 50-k. A suit against a police officer so indemnified is considered a suit against the municipal corporation itself and is governed by the statute of limitations set forth in N.Y. General Municipal Law § 50-i. Since New York law does not require municipalities to indemnify FBI and U.S. Customs agents and since federal law did not at the time provide such indemnification, the argument goes, such federal officers are more closely analogous to sheriffs and should therefore have the benefit of the shorter period prescribed by § 215(1).

Our review of the history and background of § 215(1) shows that it represents an amalgam of (1) former § 51(1) of the Civil Practice Act (which provided a one-year limitations period for actions against sheriffs and those in line to hold the office of sheriff and marshals, in order to protect their sureties)²  and (2) former § 49(2) of the Civil Practice Act (which had prescribed a three-year period to govern actions against constables).³  Nothing in the history indicates a legislative intent to extend the benefits of § 215(1) to law enforcement officers other than those specifically named. Moreover, although some law enforcement officers employed by municipalities were required to be indemnified as to some claims at the time of appellant's arrest and to that extent suits against them were treated for statute of limitations purposes as suits against the municipalities employing them,⁴  which were governed by § 50-i,⁵  Hahin v. City of Buffalo, 41 Misc.2d 1018, 246 N.Y.S.2d 917 (Sup.Ct. Erie Cty. 1964); Rusch v. Karpick, 20 A.D.2d 954, 248 N.Y.S.2d 451 (4th Dept. 1964); Fitzgerald v. Lyons, 39 A.D.2d 473, 336 N.Y.S.2d 940 (4th Dept. 1972); Sadler v. Horvath, 44 A.D.2d 905, 357 N.Y.S.2d 558 (4th Dept. 1974); Cooper v. Morin, 50 A.D.2d 32, 375 N.Y.S.2d 928 (4th Dept. 1975), this by no means extended § 50-i to all suits against such officers for personal injuries or property damage caused by them in the performance of their duties. Indeed, at the time of appellant's arrest the only types of claims for which law enforcement officers employed by municipal bodies were indemnified were claims involving vehicular negligence. N.Y. Gen. Municipal Law § 50-c. As to all other claims against such officers and as to claims against all officers not employed by such municipal bodies, the ordinary limitations provisions were applicable.⁶  Although indemnification of New York law enforcement officers for their torts has since been extended in certain respects by statute, the extensions post-date the conduct at issue here or are inapplicable for other reasons.⁷ 

Thus the picture that emerges of the limitations provisions applicable to actions against law enforcement officers under New York law is considerably more complicated than appellees would have us believe. Sheriffs, constables and coroners are governed by N.Y.C.P.L.R. § 215(1). With some exceptions not pertinent here for claims against some law enforcement officials which are governed under certain conditions by N.Y. General Municipal Law § 50-i, all other law enforcement officers a complete listing of such positions in New York is given in N.Y. Criminal Procedure Law §§ 1.20(33) & (34) would appear also to be governed by the general limitations provisions. Although we have not specifically considered this question before, we did apply § 214(2), and not § 215(1) in Romer v. Leary, 425 F.2d 186 (2d Cir. 1970), an action against the police commissioner of New York City. Similarly, in Ortiz v. LaVallee, 442 F.2d 912 (2d Cir. 1971), we applied § 214(2) in a suit against state prison officers, who along with constables, are defined as "peace officers" in N.Y. Criminal Procedure Law § 1.20(33). Compare Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975).

Thus arguments in support of the application of § 215(1) to this case must be rejected. It simply is not true that all police or peace officers other than sheriffs, constables, and coroners are covered by N.Y. General Municipal Law § 50-i through indemnity arrangements. The efforts to analogize federal officers to sheriffs on the assumption that they are not indemnified by New York municipalities or the federal government does not withstand analysis. The reason for the short statute governing actions against sheriffs, constables and coroners is to protect their sureties, and the reason certain other officers are given the benefit of the municipal limitations statute is to protect the indemnifying municipalities. Neither of these special considerations applies to federal officers. No purpose would be served in adopting a rule that would require us in every Bivens case to decide whether the particular type of federal officer involved is more closely analogous to a sheriff, a large-city policeman, a small-city policeman, a county police officer, or some other state law enforcement officer and to decipher the special limitations provisions relevant to each, particularly where the distinctions drawn by New York law are completely irrelevant to federal officers.

The federal defendants in this case are therefore entitled only to the benefits of either the three-year limits of § 214(2) or the six-year limits of § 213(1). Since New York law provides at least a three-year statute of limitations for the Bivens claims asserted in this case, thereby satisfying the federal interest in a longer statute, we decline here to formulate a general federal statute of limitations for Bivens claims.⁸  Accordingly, we reverse the district court's dismissal of appellant's Bivens claim as time-barred.

Appellant next challenges the dismissal of his claim based on 42 U.S.C. § 1985(3). In Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971), the Court held that a necessary element of an action under § 1985(3) was a "racial, or perhaps otherwise class-based, individiously discriminatory animus behind the conspirators' action." An examination of appellant's amended complaint reveals that nowhere is such a discriminatory animus alleged. The closest that the complaint comes to attributing any motive to the defendants is paragraph 17, which provides:

"All of the foregoing was done, was caused to be done, and is being done and is being caused to be done by virtue of a conspiracy by said defendants without just cause, unlawfully, and unreasonably and contrary to law."Whatever may be the scope of § 1985(3),⁹  such an allegation is not sufficient to bring appellant's suit within its bounds. Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969); Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S. Ct. 1368, 35 L. Ed. 2d 592 (1973); Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975); Hughes v. Ranger Fuel Corp., 467 F.2d 6 (4th Cir. 1972); Lesser v. Braniff Airways, Inc., 518 F.2d 538 (7th Cir. 1975); Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S. Ct. 1578, 39 L. Ed. 2d 881 (1974); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973).

Finally, appellant challenges the district court's dismissal of his defamation claims.¹⁰  His complaint alleged, first, that the defendants' actions led to newspaper articles which appeared on November 17, 1973, reporting his arrest and, second, that his picture was included in the defendants' "rogues' gallery" and shown to various persons from time to time. The district court held that under New York's "single publication" rule both of appellant's claims accrued on November 17, 1973, and were therefore barred by his failure to bring suit until January 29, 1975. The court further held that the showing of appellant's picture as part of a "rogues' gallery" does not state a claim for libel under New York law.

We agree that appellant's libel claim based on the publication of the newspaper articles is barred by the statute limitations. Although appellant argues that his suit should not be barred if he suffered damages from that publication within a year of bringing suit, he has alleged no such damages. As to this aspect of the district court's holding, therefore, we affirm.

To the extent that the district court held that the newspaper articles and the showing of appellant's picture in the "rogues' gallery" together constituted a "single publication" under Gregoire v. C. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45 (1948), however, we disagree. That rule is clearly intended to apply only to multiple copies published as part of a single printing, not to separate printings of differing publications which form the basis of separate libel claims. As the Gregoire court stated the rule:

"(T)he publication of a defamatory statement in a single issue of a newspaper, or a single issue of a magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of action and . . . the applicable Statute of Limitations runs from the date of that publication."

Id. at 123, 81 N.E.2d at 47. Since the various showings were alleged to have taken place during the summer or fall of 1974 and at other times unknown to appellant, it was error to dismiss this claim as time-barred on a motion to dismiss.

The court further held, however, that the showing of appellant's picture as part of a "rogues' gallery" fails to state a cause of action. We cannot agree. A false statement that one is a criminal or has committed or been arrested for the commission of a crime is libelous per se in New York. Moore v. Francis, 121 N.Y. 199, 203, 23 N.E. 1127 (1890); 34 N.Y.Jur., Libel & Slander §§ 8-13 (1964). Moreover, it is clear that publication of a photograph can constitute libel. Metzger v. Dell Publishing Co., 207 Misc. 182, 136 N.Y.S.2d 888 (Sup.Ct. N.Y.Cty. 1955). Whether exhibition of a photograph in a "rogues' gallery" carries with it the clear implication that the person portrayed is a criminal is a question for the jury. Colpitts v. Fine, 42 A.D.2d 551, 345 N.Y.S.2d 45 (1st Dept. 1973). Thus appellant has alleged the elements of a claim for libel.¹¹  Kent v. Buffalo, 36 A.D.2d 85, 319 N.Y.S.2d 305 (4th Dept. 1971) (broadcast of innocent plaintiff's picture as one of robbers held to constitute libel); Gow v. Bingham, 57 Misc. 66, 107 N.Y.S. 1011 (Sup.Ct. Kings Cty. 1907); Owen v. Partridge, 40 Misc. 415, 82 N.Y.S. 248 (Sup.Ct. N.Y.Cty. 1903).

For the above reasons we affirm in part, reverse in part, and remand for proceedings consistent with this opinion. Costs will be awarded to appellant.