Krause v. Rhodes

CELEBREZZE, Circuit Judge

(dissenting).

With due respect for my Brothers of the majority, I am unable to concur in their opinion or the result reached thereunder.

The majority concludes that the present suits are “in substance and effect actions against the State of Ohio” within the prohibition of the Eleventh Amendment. As discussed in Part II of this dissent, however, I find no authority to support such an extension of the Amendment, nor do I understand the majority’s disregard for the Supreme Court’s ruling in Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908). Indeed, the majority’s ad hoc application of the Eleventh Amendment would appear to bar all suits under 42 *448 U.S.C. § 1983 , with its requirement that defendants thereunder be shown to have acted under color of state law.

The majority concludes that the present suits are also barred by the common law doctrine of executive immunity. The majority is totally oblivious to the fact, as discussed in Part III of this dissent, that this conclusion in effect constitutes judicial repeal of an act of Congress in deference to a common law rule which emerged after the enactment of Section 1983.

The majority reads Moyer v. Peabody, 212 U.S. 78 , 29 S.Ct. 235 , 53 L.Ed. 410 (1909), as giving a governor and National Guardsmen total immunity from any form of judicial review of their actions. As discussed in Part IV of this dissent, the majority thus ignores not only the good faith requirement which was ’established by stipulation in the Moyer decision, but also the holding of Sterling v. Constantin, 287 U.S. 378 , 53 S.Ct. 190 , 77 L.Ed. 375 (1932), that the courts can and must review allegations that the actions of a governor and National Guardsmen have exceeded the range of permitted, discretionary conduct justified by the exigencies of the situation.

The majority totally ignores the wrongful death actions which are joined with the Section 1983 claims in each of the complaints. As discussed in Part V of this dissent, the wrongful death actions in the Krause and Miller complaints are asserted under original, diversity, jurisdiction — rather than pendent jurisdiction, to which the majority makes a passing reference — requiring that these actions be disposed of under the applicable Ohio common law and statutes. While it quotes one of these statutes, O.R.C. § 5923.27, in full, the majority fails to consider the fact that the present complaints specifically allege willful and wanton misconduct within the exception to the immunity granted under that statute.

Apart from these aspects of the majority opinion which I will discuss at some length in the remaining portions of this dissent, the majority has failed to recognize the status of these suits, and the precedential effects of their ill-advised pronouncements. These suits were dismissed for lack of jurisdiction without an answer to the complaints and without any evidence having been introduced by either party- — save two proclamations issued by Defendant-Appellee Governor Rhodes, the first of which orders Ohio National Guardsmen to active duty to protect against violence arising from a wildcat strike in the truck transportation industry and the second of which was issued one day after the date of the deaths for which recovery is sought in the present suits. Even if these proclamations served as evidence of the conditions which prevailed on the Kent State Campus when the deaths occurred — which they obviously do not— they could not stand as conclusive proof of necessity in view of the Supreme Court’s discussion in Sterling v. Constantin, 287 U.S. 378, 402-403 , 53 S.Ct. 190 (1932). The majority opinion is nonetheless framed under the assumption that the violence and riotous conditions which, according to the media, may have prevailed on the Kent State Campus, have been established as proven facts for purposes of the present suits.

The shallowness of the majority’s reasoning is illustrated in part by their reliance on this Court’s decisions in Bright v. Nunn, 448 F.2d 245 (6th Cir. 1971), and Morgan v. Rhodes, 456 F.2d 608 (6th Cir. 1972), cert. granted sub nom., Gilligan v. Morgan, 409 U.S. 947 , 93 S.Ct. 287 , 34 L.Ed.2d 217 (U.S. Oct. 24, 1972) (in which I dissented because no injunctive relief or declaratory judgment could have been granted), undaunted by the fact that those suits were against defendants comparable to those named in the present cases yet jurisdiction over the Bright and Morgan suits was in no way precluded by either the Eleventh Amendment or the common law doctrine of executive immunity.

No less than my Brothers of the majority, I recognize the considerations *449 which weigh against judicial review of the conduct of state officials and National Guardsmen in the face of civil disorders and sudden emergencies— when the latter conditions are proven. Unlike the majority, I believe that these considerations can be given appropriate weight without totally barring judicial review of possibly unwarranted deprivations of constitutional rights — particularly when the majority can sustain its position only by resorting to an unsupportable extension of the Eleventh Amendment and an impermissible application of the common law doctrine of executive immunity. As discussed in Part IV of this dissent, the Supreme Court’s opinion in Sterling v. Constantin, 287 U.S. 378 , 53 S.Ct. 190 (1932), establishes workable guidelines for judicial review in this area which neither permit the courts to substitute their retrospective judgment for that of state officials acting in good faith in the face of an emergency nor require that the courts totally close their doors to claimed deprivations of constitutional rights when it is asserted that state action exceeded the limits of discretionary conduct justified under the circumstances.

I believe that the errors of the majority become self-evident from the following review of the suits and discussion of the issues raised by the rulings of the District Court and the majority opinion herein.

I.

These are appeals from the District Court’s dismissal of three suits for damages under 42 U.S.C. § 1983 . Each of the complaints also asserts a state law claim for wrongful death. Because the appeals involve the same questions of law, they were heard as companion eases under Rule 7(b) of this Court.

The suits were brought by the representatives of the estates of Allison Krause, Jeffrey. Glenn Miller, and Sandra Lee Scheuer, who died as a result of gunshot wounds allegedly inflicted by members of the Ohio National Guard on the Kent State University Campus on May 4, 1970. The complaints, which were filed separately during the months of July through September, 1970, each named James Rhodes, Governor of the State of Ohio, Sylvester Del Corso, Adjutant General of the Ohio National Guard, and Robert Canterbury, Assistant Adjutant General of the Ohio National Guard, as defendants. The Miller and Scheuer complaints also named as defendants Harry D. Jones, a Major in the Ohio National Guard, John E. Martin and Raymond J. Srp., captains in the Ohio National Guard, various unnamed officers and enlisted men of the Ohio National Guard, and Robert White, President of Kent State University. The Miller complaint alone named Alexander Stevenson, a member of the Ohio National Guard, as an additional defendant.

The complaints assert that the decedents, Allison Krause, Jeffrey Glenn Miller, and Sandra Lee Scheuer, were enrolled as students at Kent State University in May 1970 and that none of the decedents was engaged in any riotous, violent, or provocative conduct at the time the fatal wounds were inflicted on May 4,1970.

Although the defendants named in the three complaints are not identical and the allegations contained in the complaints vary somewhat as to the specific conduct challenged, those allegations can be generally summarized as follows: (1) Governor Rhodes intentionally, willfully, wantonly and recklessly ordered Ohio National Guard troops to duty on the Kent State campus when such action was unnecessary; permitted the troops to carry loaded weapons, thus increasing the risk that innocent persons would be injured and killed; permitted the troops to shoot at persons without justification; and ordered the troops to break up all assemblies, whether lawful or unlawful; (2) Adjutant General Del Corso and Assistant Adjutant General Canterbury intentionally, willfully, wantonly and recklessly caused and ordered inadequately trained and incapable Ohio National Guard troops to carry loaded *450 weapons, thus increasing the risk of shooting innocent persons; to shoot at persons without legal justification; ,and to engage in actions which increased the risk of injury and death to persons on and near the Kent State campus; (3) Major Jones and Captains Martin and Srp intentionally, willfully, wantonly and recklessly caused and ordered Ohio National Guard troops to shoot at and in the direction of persons without legal justification and to engage in actions which increased the risk of injury and death to persons on or near the Kent State campus; or, alternatively, these defendants intentionally, willfully, wantonly and recklessly failed to restrain the troops under their command from shooting and causing others to shoot, without legal justification, at and in the direction of persons on and near the Kent State campus; (4) the unnamed Ohio National Guard members willfully, wantonly and recklessly shot at and in the direction of persons on the Kent State campus without legal justification and caused others to do so; or, alternatively, if these unnamed Guardsmen were ordered to shoot their weapons, such orders were patently unlawful and did not legally justify such shooting; (5) President White intentionally, willfully, wantonly and recklessly failed to take any actions to control the Ohio National Guard activities on the Kent State campus or to decrease the risk of injury and death when such actions could have decreased that risk.

It is further asserted that the conduct of the Defendants-Appellees, as set forth above, was undertaken individually and in concert under color of state law, in deprivation of the decedents’ rights to due process and equal protection, and that Plaintiffs-Appellants are therefore entitled to compensatory and punitive damages under 42 U.S.C. § 1983 . The same conduct of Defendants-Appellees is asserted as the basis for compensatory and punitive damages under the state wrongful death claims.

In a single Memorandum and Order, the District Court granted DefendantsAppellees’ motions to dismiss the three suits under Rule 12(b)(1), F.R.C.P., for lack of subject matter jurisdiction. The District Court made the following findings and conclusions in support of its dismissal:

“The Eleventh Amendment to the United States Constitution prohibits this court from exercising jurisdiction in this case and this court so finds.

“All defendants, including President White, are sued in their official capacities and sovereign immunity so extends.”

II.

The federal claim in each of the three complaints is asserted under 42 U.S.C. § 1983 , which provides as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” (Emphasis added.)

Acknowledging that the complaints asserted claims against the individual defendants under Section 1983, the District Court nonetheless ruled that because each of the several defendants was being sued in his representative capacity as a public or military official and/or an agent of the sovereign State of Ohio, the suits were “essentially against the State of Ohio.” The State of Ohio having failed to consent to such actions against it, the District Court concluded that the suits are barred by the Eleventh Amendment. This conclusion and the majority’s endorsement of it are in direct conflict with the applicable case law.

In Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), the Supreme Court was faced with contentions, similar to those of Defendants-Appellees *451 here, that a suit in federal court against a state official was in essence a suit against the state, which was barred by the Eleventh Amendment. There a federal Circuit Court had enjoined the Attorney General of the State of Minnesota from instituting any action or proceeding to compel obedience to, or compliance with, a Minnesota statute or to enforce the remedies and penalties thereunder, pending the Court’s ruling on the constitutionality of the statute. The Supreme Court ruled that the Eleventh Amendment did not bar the Circuit Court’s injunction against the state attorney general, notwithstanding the fact that he was sued in his capacity as a state official:

“If the aet which the state Attorney General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” 209 U.S. at 159-160 , 28 S.Ct. at 454 .

Through its decision in Ex parte Young, the Supreme Court resolved what might otherwise have stood as a conflict between the Eleventh Amendment and suits in a federal court by citizens seeking to vindicate their rights under the Fourteenth Amendment. As was recently noted by Mr. Justice Brennan, the Young decision — coupled with what are now 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343 (3), 1331 — firmly established the federal courts as the primary guardians against state interference with constitutional rights:

“Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution. During the years between Osborn [Osborn v. United States Bank, 9 Wheat. 738 , 6 L.Ed. 204 (1824)] and Young , and particularly after the Civil War, Congress undertook to make the federal courts the primary guardians of constitutional rights. . . . The principal foundations of the expanded federal jurisdiction in constitutional cases were the Civil Rights Act of 1871, 17 Stat. 13 , which in § 1 empowered the federal courts to adjudicate the constitutionality of actions of any person taken under color of state statute, ordinance, regulation, custom, or usage, see 42 U.S.C. § 1983 , 28 U.S.C. § 1343 (3), and the Judiciary Act of 1875, 18 Stat. 470 , which gave lower federal courts general federal-question jurisdiction, see 28 U.S.C. § 1331 . These two statutes, together, after 1908, with the decision in Ex parte Young , established the modern framework for federal protection of constitutional rights from state interference. That framework has been strengthened and expanded by subsequent acts of Congress and subsequent decisions of this Court.” Perez v. Ledesma, 401 U.S. 82, 106-107 , 91 S.Ct. 674, 687-688 , 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part, dissenting in part).

The District Court’s determination that the present suits under Section 1983 are barred by the Eleventh Amendment cannot be upheld in the face of the Supreme Court’s decision in Ex parte Young. No less than the suits for injunctive relief which were before the Circuit Court in Young , the present actions under Section 1983 seek redress of asserted infringements of constitutional rights by state officials. To hold that the present suits against state officials under Section 1983 are barred by the Eleventh Amendment would in effect overrule the Supreme Court’s holding in Ex parte Young and destroy Section 1983 as a tool by which federal courts are to guard against state interference with constitutional rights.

*452 In its opinion in Ex Parte Young, supra, 209 U.S. at 150-152 , 28 S.Ct. 441 , the Supreme Court reviewed the scope of the Eleventh Amendment as it had then been construed. Clearly a citizen’s suit in which a state is a named party cannot be entertained by a federal court. See Osborn v. United States Bank, 9 Wheat. 738, 846, 857 , 6 L.Ed. 204 (1824). Nor may a federal court hear a suit by a citizen against a governor or other state officer, in his official capacity, for moneys in the state treasury. Governor of Georgia v. Madrazo, 1 Pet. 110, 122, 123 , 7 L.Ed. 73 (1828). And a citizen’s suit against state officials, where the relief sought would require the state’s specific performance of a contract, is likewise barred by the Eleventh Amendment in the absence of the state’s consent. Hagood v. Southern, 117 U.S. 52, 67 , 6 S.Ct. 608 , 29 L.Ed. 805 (1886); In re Ayers, 123 U.S. 443 , 8 S.Ct. 164 , 31 L.Ed. 216 (1887).

The cases relied upon by the District Court in support of its conclusion that the present suits are barred by the Eleventh Amendment clearly fall within the above categories. The District Court based its ruling on the following cases: Missouri v. Fiske, 290 U.S. 18 , 54 S.Ct. 18 , 78 L.Ed. 145 (1933) (ancillary and supplemental bill seeking an injunction against a state, in its own name, restraining it from prosecuting proceedings in a state court); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 , 65 S.Ct. 347 , 89 L.Ed. 389 (1945) (suit against a state agency for the refund of taxes from the state treasury) ; Great Northern Ins. Co. v. Read, 322 U.S. 47 , 64 S.Ct. 873 , 88 L.Ed. 1121 (1944) (suit against a state insurance commissioner to recover taxes from the state treasury) ; Louisiana v. Jumel, 107 U.S. 711 , 2 S.Ct. 128 , 27 L.Ed. 448 (1882) (suit against state officials to require specific performance of contracts with the state and appropriation of state treasury funds); Parden v. Terminal Railway Co., 377 U.S. 184 , 84 S.Ct. 1207 , 12 L.Ed.2d 233 (1964) (FELA suit against a state agency for damages to be paid from the state treasury; state’s operation of an interstate railway constituted consent to such a suit.) 1 Likewise, Ex parte New York, 256 U.S. 490 , 41 S.Ct. 588 , 65 L.Ed. 1057 (1921) — the only Eleventh Amendment case cited as support for the majority’s holding — involved an attempt to join the New York Superintendent of Public Works as a defendant in three admiralty suits, under which any judgment would be satisfied out of the property or treasury of the State.

In several of these cases the Supreme Court expressly acknowledged that it was not faced with a suit against a state official under his personal liability for his wrongful acts:

“The ancillary and supplemental bill is brought by the respondents directly against the State of Missouri. It is not a proceeding within the principle that suit may be brought against state officers to restrain an attempt to enforce an unconstitutional enactment. That principle is that the exemption of states from suit does not protect their officers from personal liability to those whose rights they have wrongfully invaded.” Missouri v. Fiske, supra, 290 U.S. at 26 , 54 S.Ct. at 20 .

“In such cases [where relief is sought under general law from the wrongful acts of officials] the immunity of the sovereign does not extend to wrongful individual action and the citizen is allowed a remedy against the wrongdoer personally.” Great Northern Insurance Co. v. Read, supra, 322 U.S. at 51 , 64 S.Ct. at 875 .

*453 “Where relief is sought under general law from wrongful acts of state officials, the sovereign’s immunity under the Eleventh Amendment does not extend to wrongful individual action, and the citizen is allowed a remedy against the wrongdoer personally.” Ford Motor Co. v. Department of Treasury of Indiana, supra, 323 U.S. at 462 , 65 S.Ct. at 350 .

The present actions under Section 1983 are not against the State of Ohio as a named defendant; they do not seek money damages from the State’s treasury; nor would the requested relief, if granted, require specific performance of a contract by the State. Rather, these actions are brought against the named defendants, as individuals under their personal liability for conduct which allegedly deprived Plaintiffs-Appellants’ decedents of their constitutional rights. The suits are of the type which the Supreme Court was careful to exclude from the Eleventh Amendment’s prohibition in the cases discussed above and in its landmark decision in Ex parte Young.

Summarily dismissing the Supreme Court’s decision in Ex parte Young as “inapposite” and ignoring the scope ascribed to the Eleventh Amendment by the above cases, the majority holds that the “nature and effect” of the present suits bring them within that Amendment’s prohibition. The majority fails to consider that a comparable “nature and effect” is a prerequisite for any suit under Section 1983, with its requirement that defendants thereunder be shown to have acted under color of state law. Any question of Section 1983’s constitutionality which thus emerges from the majority’s approach, is averted by the fact that Section 1983 provides for redress against persons under their personal liability, and suits thereunder are theretofore not within the established scope of the Eleventh Amendment. See Sostre v. McGinnis, 442 F.2d 178, 205 (2d Cir. 1971).

III.

The District Court apparently based its dismissal of these suits solely on their asserted conflict with the Eleventh Amendment. Several of the cases cited by the District Court, however, dealt with the personal immunity of public officials rather than the Eleventh Amendment or sovereign immunity. Whereas the District Court may thus have merely confused the concepts of personal immunity and sovereign immunity as the latter is incorporated in the Eleventh Amendment, the majority expressly holds that the present suits are barred not only by the Eleventh Amendment but also by the common law doctrine of executive immunity.

Section 1983 contains no provision which can be construed as establishing immunity for any defendants thereunder. 2 As was observed by the Court of Appeals for the Second Circuit in Jobson v. Henne, 355 F.2d 129, 133 (2d Cir. 1966):

“The Civil Rights Acts in general, and § 1983 in particular, are cast in terms so broad as to suggest that in suits brought under these sections common law doctrines of immunity can never be a bar.”

Reflecting upon the common law immunities which were firmly established prior to the enactment of Section 1983, however, the Supreme Court has imparted immunity to two specific classes of public officials who might otherwise be liable under this statute for their official acts. In Tenney v. Brandhove, 341 U.S. 367 , 71 S.Ct. 783 , 95 L.Ed. 1019 (1951), the Supreme Court held that “[t]he privilege of legislators to be free *454 from arrest or civil process for what they do or say in legislative proceedings,” with its “taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries,” was not abridged by the Civil Rights Act of 1871. 341 U.S. at 372 , 71 S.Ct. at 786 . Therefore, members of a senate committee of the California Legislature were held to be immune from suit under 8 U.S.C. §§ 43 and 47(3) [now 42 U.S.C. §§ 1983 and 1985(3)]. And in Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213 , 18 L.Ed.2d 288 (1967), the Supreme Court held that Section 1983 did not abrogate the well established common law doctrine of “immunity of judges from liability for damages for acts committed within their judicial jurisdiction.” 386 U.S. at 554 , 87 S.Ct. at 1217 .

Beyond the immunity for legislators and judges which the Supreme Court has expressly recognized under Section 1983, there exists no authority for lower federal courts to further restrict the statute by applying common law notions of executive immunity to suits brought thereunder. The common law doctrine of executive immunity is at odds with the purpose or, more accurately, the very existence of Section 1983 as a remedy against deprivations of constitutional rights. In holding that the doctrines of legislative and judicial immunity are applicable to suits under Section 1983, the Supreme Court emphasized that these common law doctrines were firmly established in England and this country when Congress enacted the Civil Rights Act of 1871. The Supreme Court therefore reasoned that Congress would not have intended to abrogate these immunities under Section 1983 without expressly so providing:

“We cannot believe that Congress — itself a staunch advocate of legislative freedom — would impinge on a tradition so well grounded in history and reason by covert inclusion in the general language before us.” Tenney v. Brandhove, supra, 341 U.S. at 376 , 71 S.Ct. at 788 .

“The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine.” Pierson v. Ray, 386 U.S. at 554-555 , 87 S.Ct. at 1218 .

The doctrine of executive immunity is not so well established, having been recognized in neither England nor this Country until some 20 years after the enactment of Section 1983. See Barr v. Matteo, 360 U.S. 564, 581-582 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 (1959) (Warren, C. J., dissenting). It therefore cannot be assumed that Congress intended this doctrine to apply to suits under Section 1983.

Another compelling reason for not applying a doctrine of executive immunity in suits under Section 1983 lies in the simple fact that such a doctrine, if added to the legislative and judicial immunity presently recognized under the statute, would totally circumscribe the remedy provided in Section 1983. It is difficult to envision what, if any, remedy would remain under Section 1983 if, in addition to those persons who can bring themselves under legislative or judicial immunity, the broad class of persons who might be characterized as state executive officials is also immune from suit under the statute. Whereas Congress may have intended that the doctrines of legislative and judicial immunity would apply to suits under Section 1983, I assume that Congress did not intend that the remedy under the statute would be so thoroughly frustrated, or in effect nullified, by the additional common law doctrine of executive immunity. The rule that statutes in derogation of the common law must be narrowly construed certainly does not require, nor authorize, courts to. apply a common law doctrine which totally undercuts the statute — particularly when that common law doctrine was not yet recognized when the statute was enacted.

The majority relies on the case of Martone v. McKeithen, 413 F.2d 1373 (5th Cir. 1969), and the cases cited *455 therein, in support of its conclusion that the present suits are barred by the doctrine of executive immunity. In Mar-tone the Court of Appeals held that the Governor of Louisiana was immune from a damage suit 3 under Section 1988 for acts within the sphere of his executive activity. By substituting “the immunity of public officers from suit” within the following discussion of judicial immunity in Pierson v. Ray, 386 U.S. at 554 , 87 S.Ct. at 1218 , the Martone court cited that decision as support for applying a broad rule of official immunity under Section 1983:

“ ‘We do not believe that this settled principle of [the immunity of public officers from suit] was abolished by § 1983, which makes liable “every person” who under color of law deprives another person of his civil rights. The legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities.’ ” 413 F.2d at 1375 .

As discussed above, such a distorted reading of Pierson v. Ray would result in a wholesale abolition of the remedy prescribed under Section 1983.

In support of its holding that the Governor was immune from a damage suit under Section 1983, the Martone Court cited Barr v. Matteo, 360 U.S. 564 , 79 S.Ct. 1335 (1959), Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), and Norton v. McShane, 332 F.2d 855 (5th Cir. 1964) — cases upon which the majority herein similarly relies in support of their conclusion that Defendants-Appellees are clothed with executive immunity.

In Barr v. Matteo, the Supreme Court held that the Acting Director of the Office of Rent Stabilization was protected by an absolute immunity from a civil action for libel arising from his issuance of an official press release. The suit was not brought under Section 1983, no deprivation of constitutional rights was asserted, nor was the defendant a person acting under color of state law. The decision therefore cannot be said to support the application of a doctrine of executive immunity in suits against state officials under Section 1983.

Gregoire v. Biddle involved a damage suit under what are now Sections 1983 and 1985, 42 U.S.C., as well as common law, against federal officials for false arrest. Holding that all defendants had absolute immunity, the District Court had dismissed the suit. The Court of Appeals affirmed the dismissal of the Section 1983 claim because none of the defendants had acted “under color of” state law — not because absolute immunity was applicable to suits under the statute. 4 177 F.2d at 581-582 . More *456 over, the Court of Appeals’ broad language upholding the absolute immunity of the federal defendants under the common law claims has been modified by the recent ruling in Bivens v. Six Unknown Named Agents of the F.B.I., 456 F.2d 1339 (2d Cir. 1972), wherein the same Court held that F.B.I. agents were not immune from damage suits for their allegedly unreasonable search and arrest without probable cause.

In Norton v. McShane the plaintiffs similarly sought damages under 42 U.S. C. §§ 1983 and 1985(3) and common law from certain federal officials, including a deputy United States Marshal and his supervisors for their allegedly unlawful arrests. Applying the absolute immunity of federal officials acting within the scope of their authority, as prescribed in Barr v. Matteo and Gregoire v. Biddle, supra, the Court of Appeals affirmed the lower Court’s dismissal of the common law actions. As in Gregoire v. Biddle, however, the dismissal of the action under Section 1983 was affirmed because none of the defendants had acted “under color of” state law. The question of official or executive immunity under Section 1983 therefore was not before the Court. The Court did suggest in dictum, however, that the doctrine of official immunity “may be given more limited application in those suits [under Section 1983] than it has been given at common law.” 332 F.2d at 861 .

Thus, none of the decisions cited by the Court in Martone v. McKeithen and relied on by the majority herein ruled upon the applicability of official or executive immunity to suits under Section 1983. Indeed, the same Court’s opinion in Norton v. McShane, supra, recognized ín dictum that the doctrine of official immunity, as applied at common law, may be given more limited application in suits under Section 1983. 332 F.2d at 861 .

Moreover, the Court of Appeals for the Fifth Circuit (which rendered both the Martone and Norton decisions, supra) has recently ruled in Roberts v. Williams, 456 F.2d 819 (5th Cir.) cert. denied, 404 U.S. 866 , 92 S.Ct. 83 , 30 L.Ed.2d 110 (1971), that the absolute immunity which has been afforded to federal and state officials under common law is not applicable in suits against state officials under Section 1983. 456 F.2d at 830-31. There a 14-year old inmate of a Mississippi county prison farm sued the superintendent of the farm and the individual members of the county board of supervisors under Section 1983 and common law, seeking damages for a shotgun wound inflicted by a “patently incompetent” trusty guard at the farm. The District Court had dismissed the complaint with respect to the members of the board of supervisors, holding that they were immune from suit under both the Section 1983 and common law claims. 5 While it affirmed the District Court’s determination that the board members were immune from the common law actions, the Court of Appeals rejected the application of common law immunity to the claim under Section 1983. Significantly, the Roberts Court acknowledged that absolute common law immunity has been recognized for federal officials [citing Barr v. Matteo and Norton v. McShane, supra], but it ruled that such immunity cannot operate to bar suits against state and local officials (other than judges and legislators) under Section 1983. 6 Id. See also *457 Alexander v. Nosser, 438 F.2d 183, 200-202 (5th Cir. 1971), modified on other grounds, 456 F.2d 835 (en banc) (police chief, fire chief, and prison warden had no common law official immunity under Section 1983); Carter v. Carlson, 144 U.S.App.D.C. 388 , 447 F.2d 358, 365 (1971) cert. granted sub nom. District of Columbia v. Carter, 404 U.S. 1014 , 92 S.Ct. 683 , 30 L.Ed.2d 661 (1972) (rejecting common law official immunity as a bar to suits under Section 1983 against a police captain and a police chief); McLaughlin v. Tilendis, 398 F.2d 287 , 290 (7th Cir. 1971) (superintendent of schools and elected members of school board were not protected by common law, official immunity in a damage suit under Section 1983); Sostre v. McGinnis, 442 F.2d 178 , 205 n.51 (2d Cir. 1971) (state administrative officials were not entitled to immunity from damage judgment which has been extended to judges and legislators under Section 1983).

I likewise conclude that the common law doctrines of executive and official immunity, as recognized in Barr v. Matteo and Gregoire v. Biddle, supra, are inapplicable in suits against state officials under Section 1983. This is the only result which averts judicial repeal of the remedy which Congress has expressly provided under that statute — a statutory remedy which the Barr v. Matteo and Gregoire v. Biddle courts did not have to consider when they gave recognition to their respective rules of common law, personal immunity.

In reaching this conclusion I am not unmindful of the policy considerations which support the recognition of a general rule of official immunity outside the context of suits under Section 1983. This policy was set forth by Judge Learned Hand in Gregoire v. Biddle, supra, 177 F.2d at 581 , discussing the absolute immunity of federal officials: 7

“The justification for [granting absolute immunity to federal executives] is that it is impossible to know whether the claim is well founded until the ease has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith.” 177 F.2d at 581 .

See also Barr v. Matteo, supra, 360 U.S. at 571 , 79 S.Ct. 1335 , 3 L.Ed.2d 1434 ; Norton v. McShane, supra, 332 F.2d at 857-859 .

However compelling such considerations may be in the context of common law suits against federal or state officials, they cannot override the remedy against state officials which Congress has expressly provided in Section 1983. That statute is one of the tools with which Congress chose to make federal courts the primary guardians against state interference with constitutional rights. See Perez v. Ledesma, 401 U.S. 82, 106-107 , 91 S.Ct. 674 , 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part, dissenting in part). I find no countervailing legislation through which Congress — by adopting court-made rules of personal immunity- — has chosen to protect state officials from burdensome suits or to insure their freedom from inhibitions in executing their official duties.

Moreover, the policy considerations set forth in Gregoire v. Biddle, as quoted above, relate to the need to protect public officials from the full gamut of common law suits to which they might oth *458 erwise be exposed. Indeed, the Supreme Court’s broad pronouncements regarding executive immunity in Barr v. Matteo, swpra, were rendered in the context of a simple libel suit against the defendant in that case. In contrast to the wide range of common law suits which public officials might face in the absence of broad common law immunities, Section 1983 exposes state officials to a relatively restricted class of suits — actions to redress deprivations of constitutional rights. In this context, the policies supporting the doctrines of official or executive immunity are less persuasive. The burden upon state officials to defend against these suits — the nonmeritorious as well as the meritorious — is but a small price to pay for the protection of constitutional rights. And it is a fundamental precept of this Nation that public officials should exercise the highest degree of care in discharging their duties when the constitutional rights of citizens are at stake. Moreover, it certainly cannot be said that Congress was ignorant of the burden it was placing upon state officials when it established a remedy to protect against state interference with the constitutional rights of citizens.

Nor can it be said that the conduct of a state official in discharging his discretionary duties is of such a nature that judicial review of the constitutionality of that conduct must be barred. Nowhere in the Constitution do I find that the rights guaranteed therein are to be subordinate to the need for unhampered exercise of discretion by state officials. As real as this need may be, it is not so absolute that suits under Section 1983 to redress asserted deprivations of constitutional rights by state officials must be barred in deference to it. Rather than immunizing state officials from suit under Section 1983, the discretionary nature of their conduct should relate only to the question of ultimate liability under that statute for actions which were unreasonable under the circumstances. 8

In this respect I recognize that the actions challenged in the present complaints — to the extent that any of those actions might be shown to have been directly related to the quelling of a civil disturbance — demand the utmost in discretion and immediate judgments in the face of sudden exigencies. As discussed in Part IV of this dissent, in Moyer v. Peabody, 212 U.S. 78 , 29 S.Ct. 235 , 53 L.Ed. 410 (1909) and Sterling v. Constantin, 287 U.S. 378 , 53 S.Ct. 190 , 77 L.Ed. 375 (1932), the Supreme Court has expressly provided state officials with a permitted range of discretionary conduct in the face of civil disorders and, as to actions within that permitted range, has restricted judicial review to the narrow question of whether the state officials acted in good faith and in the honest belief that their actions were necessary to quell the disturbance. Beyond this restriction on judicial review of acts within a permitted range of discretion, neither Moyer v. Peabody nor Sterling v. Constantin established any broad rule of personal immunity for state officials acting to quell civil disorders. Such a rule of personal immunity, unrelated to whether the challenged conduct was within the range of actions justified by the circumstances, would render meaningless the language in Sterling v. Constantin respecting a permitted range of justifiable conduct and would directly contravene the established rule set forth in that opinion:

“What are the allowable limits of military discretion and whether or not they have been overstepped in a par *459 ticular case, are judicial questions. . There is no ground for the conclusion that military orders in the case of insurrection have any higher sanction or confer any greater immunity.” 287 U.S. at 401 , 53 S.Ct. at 196 .

I would therefore hold that the present suits under Section 1983 are not barred by any notions of common law executive immunity. The majority’s conclusion to the contrary renders Section 1983 a nullity and recognizes the state’s interest in the immunity of its officials as being superior to the constitutional rights of individuals.

IV.

The majority herein — as did the District Court — relies in part on the Supreme Court’s decision in Moyer v. Peabody, 212 U.S. 78 , 29 S.Ct. 235 (1909), for the proposition that Defendants-Appellees’ good faith actions in the face of a civil disorder are beyond judicial review. In that case, the Governor of Colorado had declared a county to be in a state of insurrection — presumably because of existing labor unrest and apprehension of trouble from members of the Western Federation of Miners, of which Moyer was president. Apparently by order of the Governor, members of the State’s National Guard arrested Moyer and imprisoned him for a period of two and one-half months, during which time no charges were filed against him and no attempt was made to bring him before the state courts, which were in full operation during the incident.

After his release from custody, Moyer brought an action for damages against the Governor (then out of office) under R.S. § 1979 (now 42 U.S.C. § 1983 ), alleging that the arrest and incarceration were without probable cause, in violation of Moyer’s Fourteenth Amendment rights. The Circuit Court dismissed the complaint for lack of jurisdiction.

The Supreme Court affirmed the dismissal on the ground that the complaint failed to state a claim under R.S. § 1979.

“So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office, on the ground that he had not reasonable ground for his belief.” 212 U.S. at 85 , 29 S.Ct. at 236 .

Even if it could be said that this subjective good faith test prescribed in the Moyer decision sets the limits for judicial review in the present cases, that test would not support the . District Court’s dismissal of the present complaints. Moyer at no time asserted that the Governor’s conduct was in bad faith or that it was not directed toward the quelling of an insurrection. Rather, the parties agreed that the arrest and detention were undertaken in good faith in the face of an actual insurrection: “The facts that we are to assume are that a state of insurrection existed and that the governor, without sufficient reason, but in good faith, in the course of putting the insurrection down, held the plaintiff until he thought that he safely could release him.” 212 U.S. at 84 , 9 29 S.Ct. at 236 .

The present complaints do not stipulate that the alleged conduct of the defendants was undertaken in good faith or that it was directed at the quelling of an actual insurrection or disorder. To the contrary, the complaints assert that the action or inaction of all defendants was intentional, willful, wanton, reckless, and unjustified under the circumstances. Because the suits were dis *460 missed on the complaints for lack of jurisdiction, no evidence was introduced to support or refute these allegations. Therefore, under the above-quoted language from the Moyer opinion alone, the present suits would have to be remanded for further proceedings in order to determine whether the alleged actions of the defendants, if proven, were undertaken in “good faith and in the honest belief” that they were necessary to head off an actual insurrection.

In view of the Supreme Court’s subsequent decision in Sterling v. Constantin, 287 U.S. 378 , 53 S.Ct. 190 (1932), however, it is clear that the “good faith and honest belief” test prescribed in Moyer v. Peabody cannot be broadly construed as a general standard of judicial review of the actions of a governor and National Guardsmen in the face of an insurrection or civil disorder. In Sterling , the Governor of Texas — under his declaration of martial law — had ordered the state’s National Guard to seize and control privately owned oil wells in order to impose production restrictions. Finding that the evidence did not support the Governor’s and National Guard officials’ asserted belief that their actions were necessary to prevent a threatened insurrection, a three-judge District Court permanently enjoined the Governor and National Guard officers from enforcing their executive and military orders and otherwise interfering with the production of oil.

In upholding the three-judge Court’s injunction, the Supreme Court noted that the question before it did not relate to the “permissible scope of determinations of military necessity in all their conceivable applications to actual or threatened disorder and breaches of the peace,” nor did it relate to the “quelling of disturbances and the overcoming of unlawful resistance to civil authority.” 287 U.S. at 401 , 53 S.Ct. at 196 . Nonetheless, it is clear from the precise language of the Sterling opinion that the “good faith and honest belief” test suggested by the Moyer v. Peabody decision cannot stand as a general limitation on judicial review in cases where the existence of actual civil disorder or insurrection is established.

At the outset the Supreme Court in Sterling struck down the notion that a governor or other state official, relying on his personal views of necessity, 10 may create an irrebuttable presumption — unreviewable by the courts — that his actions and those of the National Guard were justified under the circumstances:

“And when the federal court, finding his action to have been unjustified by any existing exigency, has given the relief appropriate in the absence of other adequate remedy, appellants assert that the court was powerless thus to intervene, and that the Governor’s order had the quality of a supreme and unchallengable edict, overriding all conflicting rights of proper *461 ty and unreviewable through the judicial power of the federal government.

“If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases, the futility of which the State may at any time disclose by the simple process of transferring powers of legislation to the Governor to be exercised by him, beyond control, upon his assertion of necessity. Under our system of government, such a conclusion is obviously untenable. There is no such avenue of escape from the paramount authority of the Federal Constitution. When there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression. To such a case the federal judicial power extends (Art. III, § 2), and, so extending, the court has all the authority appropriate to its exercise.” 287 U.S. at 397-398 , 53 S.Ct. at 195 .

At a later point in its opinion, the Supreme Court further assailed the defendants’ assertion that their action under a proclamation of martial law “can be taken as conclusive proof of its own necessity and must be accepted as in itself due process of law”:

“Appellants' contentions find their appropriate answer in what was said by this Court in Ex parte Milligan, 4 Wall. 2, 124 [ 18 L.Ed. 281 ], a statement as applicable to the military authority of the state in the case of insurrection as to the military authority of the nation in time of war: ‘The proposition is this: That in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge), has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States. If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules. The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the military independent of and superior to the civil power. . . . Civil Liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable and, in the conflict, one or the other must perish.’ ” 287 U.S. at 402-403 , 53 S.Ct. at 197 .

The Sterling Court then turned to consider the countervailing discretion which must be afforded to state officials under their duty to suppress violence and maintain order. 11 Within this context, the Supreme Court discussed its earlier decision in Moyer v. Peabody and prescribed the limitations which must be placed on the language of that opinion:

“The nature of the power [of the Governor to call up the militia to suppress *462 insurrection and disorder] also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for, without such liberty to make immediate decisions, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency, and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the executive in the exercise of his authority to maintain peace. Thus, in Moyer v. Peabody, supra, the Court sustained the authority of the Governor to hold in custody temporarily one whom he believed to be engaged in fomenting disorder, and right of recovery against the Governor for the imprisonment was denied. The Court said that, as the Governor ‘may kill persons who resist,’ he ‘may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.’ In that case it appeared that the action of the Governor had direct relation to the subduing of the insurrection by the temporary detention of one believed to be a participant, and the general language of the opinion must be taken in connection with the point actually decided. Cohens v. Virginia, 6 Wheat. 264, 399 , [ 5 L.Ed. 257 ]; Carroll v. Carroll’s Lessee, 16 How. 275, 287 , [ 14 L.Ed. 936 ]; Myers v. United States, 272 U.S. 52, 142 , [ 47 S.Ct. 21 , 71 L.Ed. 160 ].

“It does not follow from the fact that the executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder, that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. The contrary is well established. What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions. Thus, in the theatre of actual war, there are occasions in which private property may be taken or destroyed to prevent it from falling into the hands of the enemy or may be impressed into the public service, and the officer may show the necessity in defending an action for trespass. ‘But we are clearly of opinion,’ said the Court speaking through Chief Justice Taney, ‘that in all of these cases the danger must be immediate and impending; or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for. . . . Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified.’ Mitchell v. Harmony, 13 How. 115, 134 , [ 14 L.Ed. 75 ], See, also, United States v. Russell, 13 Wall. 623, 628 , [ 20 L.Ed. 474 ]. There is no ground for the conclusion that military orders in the case of insurrection have any higher sanction or confer any greater immunity.” 287 U.S. at 399-401 , 53 S.Ct. at 196 . (emphasis added).

The foregoing discussion in Sterling v. Constantin clearly precludes the application of the “good faith and honest belief” language of Moyer v. Peabody as a general standard of judicial review in suits challenging the actions of a governor and National Guardsmen even when it is established from the evidence that *463 those actions were directly related to the quelling of a civil disorder or insurrection. As set forth in the above-quoted portion of the Sterling opinion, the language of Moyer v. Peabody relates to judicial review of those actions of state officials only when it is established that those actions were within the “permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order. . . . ” As such, the Moyer language is simply a statement of the deference which must be given to state officials’ good faith judgments and actions within a permitted range of discretionary conduct.

It is equally clear from the Sterling v. Constantin opinion that in no case is the permitted range of honest judgment free from objective limitations. Rather, when presented with allegations that state officials, in their efforts to quell a disorder or insurrection, have deprived persons of their constitutional rights through actions which were not justified by the exigencies of the situation, the courts can and must ascertain “the allowable limits of military discretion, and whether or not they have been overstepped in a particular case. There is no ground for the conclusion that military orders in the case of insurrection have any higher sanction or confer any greater immunity.” 287 U.S. at 401 , 53 S.Ct. at 196 .

I thus find that the Supreme Court’s decision in Sterling v. Constantin requires two levels of inquiry in suits to redress deprivations of constitutional rights by state officials whose actions are shown to have been directly related to the quelling of civil disorders or insurrections. 12 Initially the court 13 must review the circumstances surrounding any asserted deprivation of constitutional rights and determine if the conduct causing those asserted deprivations fell within the range of discretionary measures which were justified by the exigencies of the situation.

Precise standards, of course, cannot be prescribed as guides in defining the parameters of this range of discretion in any given case. Certainly the use of lethal force could seldom, if ever, fall within the range of permitted actions in the face of nothing more than a nonviolent sit-in or a peaceful protest march. At the other extreme, open violence and actual threats to human life would seemingly justify a broad range of discretionary actions, including the use of lethal force in some situations. Ultimately. “‘[e]very case must depend on its own circumstances.’ ” Sterling v. Constantin, 287 U.S. at 401 , 53 S.Ct. at 196 .

If it is determined that the conduct of any state official was outside the range of justified actions, that official will be personally liable for any deprivations of rights resulting from his action, notwithstanding any asserted good faith or honest belief in the justification for his action. Alternatively, if it is determined that the conduct of any state officials was within the range of actions justified by the circumstances, under Moyer v. Peabody the second level of judicial review of that conduct must be restricted to the narrow question of the officials’ “good faith and honest belief” that the actions were necessary to quell the disorder.

Personal liability will accompany any actions which, although adjudged to *464 have been within the range of permitted, conduct, are proven to have been undertaken in bad faith and/or without an honest belief that they were necessary to quell the disorder or prevent its continuance. This test, as prescribed in Moyer v. Peabody, is necessarily subjective, and the burden of proving the absence of good faith and an honest belief in necessity is therefore a difficult one in any case.

Beyond an inquiry into any allegations of bad faith and/or an absence of honest belief in necessity, a court cannot review any conduct which it has found to be within the range of actions justified under the circumstances. If the action taken was within the range of permitted measures, a court cannot review asserted errors in judgment nor consider whether a more prudent course of action might have been chosen. Rather, choices between alternative courses of action within the permitted range must be left solely to the discretion of the state officials. “[W]ithout such liberty to make immediate decisions, the power [of state officials to maintain peace] would be useless.” Sterling v. Constantin, supra, 287 U.S. at 399-400 , 53 S.Ct. at 196 .

I would remand the present Section 1983 suits for findings of fact respecting the nature of the alleged actions of Defendants-Appellees. As to any such actions which might be shown to have been directly related to the quelling of a civil disorder or insurrection, the trier of fact would be required to determine whether those actions fell within the permitted range of discretionary measures which were justified by the exigencies of the situation and whether those actions were undertaken in good faith and in the honest belief that they were necessary to quell the disorder.

V.

I now turn to consider the state law, wrongful death actions which, in addition to the claims under 42 U.S.C. § 1983 , are asserted in each of the complaints.

Federal jurisdiction over the wrongful death actions in the Krause and Miller suits is based on diversity of citizenship, 28 U.S.C. § 1332 . 14 The Plaintiff-Appellant in the Scheuer suit, being a resident of Ohio, asserts her wrongful death action under the doctrine of pendent jurisdiction.

The District Court made no reference to the wrongful death actions, and the majority herein fails to discuss these actions, all three of which it erroneously characterizes as having been asserted under the doctrine of pendent jurisdiction. Although entertainment of the pendent claim in the Scheuer complaint rested upon the District Court’s discretion in the interest of judicial economy, convenience, and fairness to the parties, United Mine Workers v. Gibbs, 383 U.S. 715, 726 , 86 S.Ct. 1130 , 16 L.Ed.2d 218 (1966), the wrongful death claims asserted in the Krause and Miller complaints were necessarily before the District Court under its original, diversity jurisdiction. It is therefore necessary to consider whether the wrongful death actions asserted in the Krause and Miller complaints are barred by the Eleventh Amendment and/or the common law doctrine of executive or personal im,munity espoused by the majority herein.

I have concluded in Part II above that the claims under Section 1983 are not suits against the State of Ohio, so as to invoke the prohibition of the Eleventh Amendment. For purposes of the Eleventh Amendment’s prohibition, the *465 wrongful death actions are distinguishable from the Section 1983 claims only in that the former do not seek redress under a federal statute for an alleged deprivation of constitutional rights. Notwithstanding this distinction, the wrongful death actions are not suits against the State of Ohio so as to be barred by the Eleventh Amendment.

Although the Supreme Court’s decision in Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), dealt with a suit in equity to enjoin a state official’s execution of an assertedly unconstitutional statute, the Court’s review of the scope of the Eleventh Amendment was not confined to suits seeking to vindicate the plaintiff’s constitutional rights against state interference. As discussed in Part II above, as of 1908 the Eleventh Amendment had been construed as barring suits by a citizen against a state as a named defendant, against a state official for monies from a state’s treasury, and against a state official when the requested relief would require specific performance of a contract by the state. See Ex parte Young, supra, 209 U.S. at 150-152 , 28 S.Ct. 441 .

Since the Supreme Court’s discussion in Ex parte Young, the scope of the Eleventh Amendment has not been expanded so as to encompass the present wrongful death actions. See generally Mathis, The Eleventh Amendment: Adoption and Interpretation, 2 Ga.L. Rev. 207, 230-34 (Winter 1968). Irrespective of whether a citizen’s suit asserts a constitutional claim, the test under the Eleventh Amendment has consistently been whether a state is a “real, substantial party in interest.” Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 , 65 S.Ct. 347 , 89 L.Ed. 389 (1945). See also In re Ayers, 123 U.S. 443 , 88 S.Ct. 164 , 31 L.Ed. 216 (1887). Moreover, the Supreme Court has consistently noted that the Amendment presents no bar to a citizen’s suit against a state official, individually, for his wrongful acts. See Ford Motor Co. v. Department of Treasury, supra, 323 U.S. at 462 , 65 S.Ct. 347 ; Great Northern Ins. Co. v. Read, 322 U.S. 47, 51 , 64 S.Ct. 873 , 88 L.Ed. 1121 (1943) (quoted in Part II of this dissent).

The present wrongful death actions seek damages from the named defendants through their personal liability, as do the Section 1983 counterparts. They do not name the State of Ohio as a defendant; they do not seek monies from the State’s treasury; they do not seek any type of relief under a contract with the State; nor does the State of Ohio have any cognizable interest in these actions which could render it a real party in interest.

I therefore would hold that the wrongful death actions asserted in the three complaints — like their Section 1983 counterparts — are not suits against the State so as to invoke the Eleventh Amendment’s prohibition.

Unlike the scope of the Eleventh Amendment and the applicability of doctrines of personal or executive immunity under Section 1983, the question of whether the wrongful death actions are barred by the Defendants-Appellees’ personal immunity is governed by Ohio law. See Carter v. Carlson, 447 F.2d 358, 361-365 (D.C.Cir.1971), cert. granted sub nom. District of Columbia v. Carter, 404 U.S. 1014 , 92 S.Ct. 683 , 30 L.Ed. 2d 661 (1972) (applying local, common law rules of immunity to common law tort actions, but rejecting the applicability of these rules to claims under Section 1983). Cf. Roberts v. Williams, 456 F.2d 819 , 830 (5th Cir.) cert. denied, 404 U.S. 866 , 92 S.Ct. 83 , 30 L.Ed.2d 110 (1971) (applying state law in finding no liability under pendent, state law claims, but relying on federal case law in finding liability under Section 1983).

With respect to the personal, civil liability of its officials in the performance of their duties, Ohio has adopted the common law distinction between discretionary and ministerial functions and recognizes a limited immunity for officials acting within the former context. It is established in Ohio that a public official is individually liable for negli *466 gence in performing a ministerial function, but a public official, acting within the scope of his authority and in the absence of bad faith or a corrupt motive, is not individually liable for his failure to properly perform a duty involving judgment and discretion. Gregory v. Small, 39 Ohio St. 346 (1883); Thomas v. Wilton, 40 Ohio St. 516 (1884). See cases cited 44 Ohio Jur.2d 570, n. 18.

It is clear from the complaints that the alleged actions of Governor Rhodes and President White involve the exercise of judgment and discretion within the above rule. Thus it is alleged that Governor Rhodes unnecessarily ordered the National Guard troops to duty on the Kent State Campus, permitted the troops to carry loaded weapons, permitted the troops to shoot at persons without justification, and ordered the troops to break up all assemblies, whether lawful or unlawful, and that President White failed to take any actions to control the National Guard troops on the Kent State Campus or to decrease the risk of injury and death. These actions or inactions appear to be inherently discretionary, requiring the judgment of the respective Defendants-Appellees.

It is further alleged, however, that the conduct of all Defendants-Appellees was intentional, willful, wanton, and reckless. These allegations, if proven, would establish the bad faith and/or corrupt motive necessary to remove the above-named Defendants-Appellees from the official immunity which would otherwise protect them from personal liability for their discretionary acts. Although the burden upon Plaintiffs-Appellants in proving the latter allegations would have been difficult, the District Court heard no evidence respecting these allegations and therefore could not properly dismiss the wrongful death actions as against these D ef endants- Appellees.

With respect to Adjutant General Del Corso and Assistant Adjutant General Canterbury, the complaints allege that these Defendants-Appellees intentionally, willfully, wantonly, and recklessly caused and ordered inadequately trained and incapable National Guard troops to carry loaded weapons, to shoot at persons without legal justification, and to engage in actions which increased the risk of injury and death to persons on or near the campus. Beyond the generality of the last clause, these alleged actions similarly appear to be discretionary in nature, so as to invoke the limited common law immunity recognized for such actions. Again, however, the District Court could not properly dismiss the wrongful death actions as against these Defendants-Appellees without receiving evidence respecting the allegations of bad faith and/or corrupt motive, which, if proven, would remove these parties from the common law immunity.

From the complaints alone, however, it is not clear whether the alleged actions of Defendants-Appellees Del Corso and Canterbury are asserted to have taken place at the scene of the disturbances on the Kent State Campus or, alternatively, whether the alleged acts of these Defendants-Appellees assertedly took place at some point away from the scene of those disturbances. Whereas the limited common law immunity discussed above may be applicable to these Defendants-Appellees for any discretionary acts in the latter context, any actions in the former context would invoke the limited statutory immunity which the Ohio Legislature has expressly provided in O.R.C. § 5923.37:

“When a member of the organized militia is ordered to duty by state authority during a time of public danger, he is not answerable in a civil suit for any act performed within the scope of his military duties at the scene of any disorder within said designated area unless the act is one of willful or wanton misconduct.” 15

*467 From the clear language of the statute, it appears that the legislature intended to afford this limited immunity to all members of the organized militia, regardless of rank, so long as their actions fall within the terms of the statute. Therefore, if it had been established that Defendants-Appellees Del Corso and Canterbury engaged in acts encompassed by the terms of O.R.C. § 5923.37, that statute, rather than the common law immunity described above, would have governed the question of their potential liability for those acts. As clearly prescribed by O.R.C. § 5923.-37, liability would have rested for acts encompassed therein only if Plaintiffs-Appellants had been able to prove their allegations that the asserted conduct of Defendants-Appellees Del Corso and Canterbury was willful and wanton.

The alleged actions of Major Jones, Captains Martin and Srp, and the unnamed National Guardsmen 16 appear to have assertedly taken place at the scene of the Kent State disturbances, within the terms of O.R.C. § 5923.37, as discussed above. Thus, it is alleged that Major Jones and Captains Martin and Srp intentionally, willfully, wantonly, and recklessly caused and ordered National Guard troops to shoot at and in the direction of persons without justification, or, alternatively, failed to restrain the troops under their command. It is alleged that the unnamed members of the National Guard intentionally, willfully, wantonly, and recklessly shot at and in the direction of persons on the Kent State Campus or, alternatively, if so ordered to shoot, that such orders were patently unjustified and illegal. Without having heard evidence respecting the allegations of intentional, willful, and wanton misconduct, the District Court could not properly dismiss the wrongful death actions as against these Defendants-Appellees.

I therefore believe that the District Court erred in dismissing the wrongful death actions set forth in the Krause and Miller complaints, which were before the Court under its original, diversity jurisdiction. These actions are not barred by the Eleventh Amendment. Moreover, the complaints sufficiently allege conduct which, if proven, would remove the respective Defendants-Appellees from the common law and statutory immunities which might otherwise bar the wrongful death actions.

VI.

One aspect of the alleged conduct of Defendant-Appellee Governor Rhodes warrants special comment. Among the alleged actions of Governor Rhodes for which redress is sought in his ordering the National Guard troops to duty on the Kent State Campus when such action was unnecessary. The Supreme Court has consistently ruled that the executive decision to call up the militia is conclusive and, in and of itself, is not subject to judicial review. This rule was reaffirmed in Sterling v. Constantin, 287 U. S. 378, 399 , 53 S.Ct. 190 , 77 L.Ed. 375 (1932), notwithstanding the Supreme Court’s review of the actions of the Governor and National Guard subsequent to *468 the call-up in that case. See Part IV of this dissent. With respect to the Section 1983 claims, Governor Rhodes’ decision to order the National Guard to duty on the Kent State Campus therefore could not have been reviewed as a basis for liability. See Morgan v. Rhodes, 456 F.2d 608, 610-611 (6th Cir. 1972), cert. granted sub nom., Gilligan v. Morgan, 409 U.S. 947 , 93 S.Ct. 287 , 34 L.Ed.2d 217 (U.S. Oct. 24, 1972). This deference which must be given to the Governor’s decision to call up the Guard did not, however, preclude judicial review of his ancillary and subsequent conduct alleged in the complaints as a basis for liability under the statute. See Sterling v. Constantin, supra, 287 U.S. at 398-401 , 53 S.Ct. 190 ; Morgan v. Rhodes, supra, 456 F.2d at 612-613.

For the reasons set forth in this dissent, I would reverse the ruling of the District Court and remand the suits for further proceedings.

. The District Court also cited Fitts v. McGhee, 172 U.S. 516 , 19 S.Ct. 269 , 43 L.Ed. 535 (1899), in support of its application of the Eleventh Amendment. As noted by the Supreme Court in Ex parte Young, supra, 209 U.S. at 156-157 , 28 S.Ct. 441 , 52 L.Ed. 714 , however, the Fitts decision rested upon the plaintiff’s invalid attempt to test the constitutionality of a state statute by naming as defendants state officials who had no power to enforce the statute in question.

. The question of whether common law immunities are applicable to suits under Section 1983 is, of course, governed by federal or general common law rather than state law. Nelson v. Knox, 256 F.2d 312, 314 (6th Cir. 1958). In contrast to Part V of this dissent, which deals with the state law wrongful death actions, the present discussion does not require that we look to the common law and statutory immunities which Ohio might afford to Defendants-Appellees.

. Significantly, the Martone Court remanded tlie case for further proceedings on the appellant’s claim for injunctive relief against all defendants. That Court was thus of the view that the immunities which it broadly applied barred only suits for damages under Section 1983. In Nelson v. Knox, 256 F.2d 312, 314-315 (6th Cir. 1956), this Court expressly rejected such a dieotomy between injunctive relief and damages with respect to immunity under Section 1983:

“To be sure, the present action is one for money damages rather than an injunction, but that difference does not affect the question of immunity. Indeed, the Supreme Court has pointed out that under the Civil Rights Act relief in equity should sometimes be withheld even where ‘comparable facts would create a cause of action for damages.’ Stefanelli v. Minard, 1951, 342 U.S. 117 , at page 122, 72 S.Ct. 118, 121 , 96 L.Ed. 138 ; see Williams v. Dalton, 6 Cir., 1956, 231 F.2d 646, 649 ; Cobb v. City of Malden, 1 Cir., 1953, 202 F.2d 701, 704-705 .” 256 F.2d at 314-315 .

Compare Giles v. Harris, 189 U.S. 475 , 23 S.Ct. 639 , 47 L.Ed. 909 (1903), with Lane v. Wilson, 307 U.S. 268 , 59 S.Ct. 872 , 83 L.Ed. 1281 (1939). Cf. Sterling v. Constantin, 287 U.S. 378, 403 , 53 S.Ct. 190 , 77 L.Ed. 375 (1932).

. The Gregoire Court did allude to Pickering v. Pennsylvania R. R. Co., 151 F.2d 240 (3d Cir. 1945), holding that absolute official immunity does not apply to actions under Section 1983, but found it unnecessary to consider this point. 177 F.2d at 581-582 .

. The District Court had found the superintendent of the county farm liable in damages under both Section 1983 and state common law. 302 F.Supp. 972 (N.D.Miss.1969). On appeal, the superintendent simply challenged the sufficiency of the evidence to support this judgment, and he did not assert that either action was barred by his official immunity. The Court of Appeals affirmed the judgment against him under both the federal and common law claims.

. The Court of Appeals did ultimately affirm the dismissal of the Section 1983 action against the board members because no breach of duty or nonfeasance on their part had a causal relation to the plaintiff’s injuries — but not because the board members were immune from suit.

. But see Bivens v. Six Unknown Named Agents of the F. B. I., 456 F.2d 1339 (2d Cir. 1972) where the same Court of Appeals refused to recognize the immunity of F.B.I. agents from damage suits for their allegedly unreasonable search and unlawful arrest.

. Judge Bazelon of the District of Columbia Circuit has emphasized this point in questioning the need for various doctrines of immunity in the context of common law suits. He suggests that the degree of discretion required in the performance of official duties should bear solely on the question of ultimate liability, and need not be raised as a bar to the suit. The substantive law of torts, rather than broad rules of immunity, can adequately protect public officials from liability for conduct which was reasonable under the circumstances. Carter v. Carlson, supra, 447 F.2d at 364, n. 15 .

. The parties in Moyer v. Peabody liad agreed that the record of the proceedings on Moyer’s earlier petition for a writ of habeas corpus in the Supreme Court of Colorado would be made part of the complaint before the federal Circuit Court. The existence of an insurrection and the Governor’s good faith were established in this record and therefore were not at issue before the latter Court. 212 U.S. at 84 , 29 S.Ct. 235 .

. Prior to its entry of the permanent injunction against the Governor and National Guard officers, the three-judge District Court in Sterling had conducted a full evidentiary hearing on the merits of the plaintiffs’ claims. The Governor and a National Guard General testified that their “orders had not been issued for the purpose of affecting prices, nor even per se to limit production, but ‘as acts of military necessity to suppress actually threatened war’ as they believed from reports brought to them that ‘unless they kept the production of oil down to within 400,000 barrels, a warlike riot or insurrection, in effect a state of war, would ensue.’ ...” 287 U.S. at 391 , 53 S.Ct. at 193 . Tho District Court, however, proceeded to make the following findings from the evidence before it: “ ‘We find no warrant in the evidence for such belief. Looking at it in the light most favorable to defendants’ contention, it presents nothing more than threats of violence or breaches of the peace. ... It shows that at no time has there been in fact any condition resembling a state of war, and that, unless the Governor may by proclamation create an irrebuttable presumption that a state of war exists, the actions of the Governor and his staff may not be justified on the ground of military necessity.’ ” 287 U.S. at 391-392 , 53 S.Ct. at 193 .

. As discussed in Part VI of this dissent, the Sterling Court expressly ruled that the Governor’s decision to call up the National Guard is conclusive and, in and of itself, is not subject to judicial review. See 287 U.S. at 399 , 53 S.Ct. 190 .

. State officials are afforded a permitted range of good faith, discretionary measures only in the context of actions “in the face of the emergency, and directly related to the quelling of the disorder or the prevention of its continuance.” Sterling v. Constantin, 287 U.S. at 400 , 53 S.Ct. at 196 . As to any conduct which is not shown to have been directly related to the quelling of a disorder, liability under Section 1983 must be governed by general principles of tort liability. See Monroe v. Pape, 365 U.S. 167, 187 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961).

. For convenience, I refer to the trier of fact as the court throughout this discussion. Both levels of inquiry discussed in the text relate to questions of fact which must be resolved by the trier of fact, be it the court or the jury working under appropriate instructions from the court.

. The Krause and Miller complaints state that the plaintiffs therein are residents of Pennsylvania and New York, respectively. The Krause complaint expressly invokes federal diversity jurisdiction over the wrongful death claims under 28 U.S.C. § 1332 . While specifically referring only to jurisdiction under 2S U.S.C. §§ 1331 and 1343, the Miller complaint alleges facts which clearly support diversity jurisdiction over the wrongful death action therein.

. O.R.C. § 5923.37 became effective September 1, 1967, along with its companion statute, O.R.C. § 5923.36, establishing a 2-year statute of limitations for any civil suit against a member of the organized militia alleging willful and wanton mis *467 conduct in actions described in § 5923.37. I am aware of no decisions which have applied either statute, and no legislative history is available.

. As initially noted in this dissent, the Krause complaint names only Governor Rhodes, Adjutant General Del Corso, and Assistant Adjutant General Canterbury as defendants. As additional defendants, the Miller and Scheuer complaints name the parties referred to in the text. The Miller complaint alone names Alexander Stevenson as yet another defendant. Although the Miller complaint does not allege acts of Stevenson individually, it appears that his immunity, if any, should have been governed by the present considerations in the text.

Ultimate determination of the applicability of common law and statutory immunities to each of the named and unnamed members of the National Guard, including Defendants-Appellees Del Corso and Canterbury, should have rested upon evidence introduced during further proceedings in the District Court.