Krause v. Rhodes

O’SULLIVAN, Senior Circuit Judge

(concurring).

I concur in the opinion of Judge Weick, but I think it right to say this much more. The dissenting opinion states:

“The burden upon state officials to defend these suits — the nonmeritorious as well as the meritorious — is but a small price to pay for the protection of constitutional rights.”

I cannot agree that what is being done in this case — suing all of the defendants, from the Governor of Ohio to the private soldiers of the Guard, in their individual capacities — “is but a small price to pay for the protection of constitutional rights.” To escape the immunities which protect the state from suit, plaintiffs here seek to cast heavy burdens upon public officials and servants to pay out of their own pockets to provide for their defense for having sought, as their duties commanded, to protect those endangered by lawlessness.

In this case, we deal again with the ever-widening employment of Section 1983 for a purpose “not plainly apparent from its langauge,” 1 as such language was employed by the Congress when it adopted this Section in 1871 to combat some of the wrongs of our post-Civil War society. Currently, however, many *446 courts have provided Section 1983 with new uses and much popularity — crowding today’s courts with such volume of claimed causes of action as to seriously impair the judiciary’s ability to meet its total burden of ’ protecting American society. 2

The dissent charges that the majority opinion “constitutes judicial repeal of an act of Congress.” Certainly neither this Court nor any other has authority to repeal the Acts of Congress. Neither have we the right to amend the Acts of Congress by finding purposes in them outside the obvious Congressional intention in enacting them.

The pleadings in the case before us, by extravagant conclusional allegations and some dissembling, strive to avoid threshold dismissal. The complaints, with apparent deliberateness, omit any mention of what had been taking place on the campus of Kent State University that occasioned the presence there of the Ohio National Guard. The dissent asserts that' the Guard was called to active duty on the day of the events here involved “to protect against violence arising from a wildcat strike in the truck transportation industry,” but fails to mention that the Governor’s May 5 Proclamation mentioned that the Guard’s activation, by Proclamation of April 29, was also “to meet disorders or threatened disorders on the campuses of Ohio State University and campuses of other state-assisted Universities.”

The pleadings would give the impression that the Ohio National Guard was on the Kent State campus for no reason whatever. It is asserted that the Governor’s orders “obviously do not” have any relationship to the conditions prevailing on the Kent State campus. Thus, the pleaders would leave it that the Guard had no reason for being at Kent; that the Governor of Ohio with his soldiers entered upon the peace and quiet of Kent State campus as invaders, bent on killing innocent girls and boys.

It is charged that we — the majority —ignore the “wrongful death actions which are joined with the Section 1983 claims” because we fail to consider the complaint’s allegations charging the Governor with “willful and wanton” killing of innocent young people. This writer does not hesitate to label such pleadings obvious contrivances to get into court without pretense of fair averment of causes of action.

The complaints, with transparent purpose, omit any mention of what had taken place in the City of Kent and on the campus of Kent State University. These are some of the allegations:

“At all times herein mentioned all defendants acted and conspired under color of statutes, ordinances, regulations, customs and usages of the State of Ohio.” (Emphasis supplied.) “Defendants ordered troops which they knew were equipped with guns loaded with live ammunition onto the Campus of Kent State University at a time when:

(a) Defendants knew there was no cause, or insufficient cause, for sending armed troops at said time into said place;” (Emphasis supplied.)

“Suddenly and without warning and without cause or justification, National Guard troops fired live ammunition at a large group of students and people, intentionally, willfully, wantonly and maliciously disregarding the lives and safety of students, spectators, passers-by * * * including Allison Krause, who was wounded by a bullet fired by a weapon of a national guardsman, * * (Emphasis supplied.)

“All acts herein mentioned were done individually and in conspiracy by these defendants and by other unknown persons with the specific intent of depriving plaintiff and plaintiffs decedent of their rights to Due Process of Law and to Equal Protection of *447 the Laws, and these acts were all done by all defendants and other unknown persons under color of statutes, ordinances, regulations, customs and usages of the State of Ohio.” (Emphasis supplied.)

The pleaders then go on to ask One Million Dollars compensatory damages and Five Million Dollars punitive damage. In another of the complaints, the pleaders ask Two Million Dollars compensatory and Two Million Dollars punitive damages.

We search in vain for anything in the several plaintiffs’ pleadings to tell us what reason, pretentious or otherwise, caused the defendant President of Kent State and the Mayor of the City of Kent to ask the Governor of Ohio to order the Ohio National Guard to the scene of the tragedies we deal with here. A fair reading of plaintiffs’ pleadings discloses an attempt to aver that, without any precedent events or causes, the Governor of Ohio willfully and wantonly ordered a company of the Ohio National Guard onto the Kent State campus, whose officers and men then proceeded deliberately and without cause to kill the several plaintiffs’ decedents. The dissembling in plaintiffs’ pleadings in this regard is portrayed by this Court’s opinion in Morgan v. Rhodes, 456 F.2d 608 . Such suit involved the events of April and May, 1970, on the campus of Kent State.

“At the outset, this complaint concedes that there was disorder which had not been terminated by normal civilian controls and that such disorders were continuing as of the time the Governor called out the troops. The complaint says:

10. On or about May 1, 1970, there occurred certain disorders in the area of the Kent campus which resulted in the imposition of a curfew by the mayor of Kent. Thereafter, demonstrations and disorders continued in and about the Kent campus.’ ” 456 F.2d at p. 610 .

I believe also that what had been going on at Kent State and its environs preceding the tragic deaths of these young people is so widely and publicly known across the nation that this Court may take judicial notice of such events. 8 Cyc.Fed.Proc. § 26.226 (3rd ed. 1968). The pleadings make no mention of the burning down of the ROTC Building on the campus of the University and the continued threats to persons and property — all a part of a state of insurrection that preceded and continued up to the very instant of the tragedy with which we deal. None of these things are even alluded to in the pleadings. For the Governor of Ohio to have refused to send the National Guard to the scene of these events and for the Guard and its men to have refused to deal with the situation confronting them, would have been dereliction of duty.

The pleadings presented to the District Judge were clearly contrived to hide rather than disclose the true background of the involved events — an attempt to predicate causes of action without disclosing their true subject matter. All of the foregoing confirms my belief that the pleadings do not disclose causes of action under Section 1983, and that this is not a ease in which to fashion new rules to strike down traditional immunities.

. 82 Harvard Law Review 1486 (1969).

. Younger, State v. Uncle Sam, 58 A.B.A.J. 155 (1972).