stating “[w]hile it is true that discovery *1333 against absentee class members under Rules 33 and 34 cannot be had as a matter of course, the overwhelming majority of courts which have considered the scope of discovery against absentees have concluded that such discovery is available” under certain circumstances and listing cases
How later courts described this case
- stating “[w]hile it is true that discovery *1333 against absentee class members under Rules 33 and 34 cannot be had as a matter of course, the overwhelming majority of courts which have considered the scope of discovery against absentees have concluded that such discovery is available” under certain circumstances and listing cases
- stating “[w]hile it is true that discovery against absentee class members under Rules 33 and 34 cannot be had as a matter of course, the overwhelming majority of courts which have considered the scope of discovery against absentees have concluded that such discovery is available” under certain circumstances and listing cases
- holding that the defendant could be liable for malicious prosecution because he supplied false information to prosecutors, leading to the filing of informations against the plaintiffs
- recognizing the defense only on facts substantially similar to those of Cox v. Louisiana
Written by the judges who cited it.
The opinion
TAMM, Circuit Judge,
dissenting.
I cannot concur in an opinion which is based upon a library analysis rather than the grim realities of the urban forum. In the ivory tower atmosphere of this courthouse my Brothers uphold an unfortunate jury verdict arrived at upon evidence of a single day’s occurrence completely isolated from the violent and tragic events which immediately preceded it. To evaluate the motivation and liability of police conduct in the vacuum of a single event, with eyes closed to contemporaneous circumstances, is to create a legal bankruptcy.
The events enumerated with masochistic delight in the opinion for the court occurred on May 5, 1971. They represented, however, the climax of a series of demonstrations which began on April 18, 1971 and accelerated in size, volume and violence to the dimensions of a Putsch or rebellion. 1 I have attached as an appendix hereto a compilation of headlines and excerpts from the Washington Post for the period of April 21 to May 10, 1971. I list the following in order to highlight a few direct quotations as indicative of the conditions as they were *212 from day-to-day observed, appraised and reported by media representatives:
April 22 Protestors Threaten Massive City Tie Up . . . Massive Civil Disobedience Designed To Halt Functioning Of Government Here. . . Leaders Distribute May Day Manual. 2
April 23 The danger is always present that violence will break out. It is a much greater danger in the upcoming demonstrations. 3
April 24 Police have handled 289 demonstrations in the last year. 4
April 25 End War Now, Throng Demands — Over 175,000 Rally At Capitol. 5
April 26 Protesters Shut N.J. Turnpike — 10 Day Protest To Begin — Government Disruption Scheduled. 6
April 27 D.C. Guard To Train; Protestors Disrupt Hill. 7
April 29 Girl Arrested As Witness in Capitol Blast — 200 Arrested, Bond Raised For Protestors. 8
April 30 Arrests Halt War March — 224 Seized After Razing Wall at H.E.W. 9
May 1 Kidnap Plot Details Bared; More Indicted
A federal grand jury issued a new indictment yesterday in the alleged conspiracy to kidnap Henry Kissinger and bomb government buildings. 10
May 2 Troops Move In To Area. Visitors Mass To Tie Up City; 50,000 In Park — Spirit Of Militancy Rises. 11
Lead Editorial
It seems almost unnecessary to say that the army of anti-war demonstrators who hope to paralyze Washington tomorrow cannot be permitted to succeed. 12
May 3 Campers Ousted, Still Planning To Snarl City Today. 13
May 4 7,000 Arrested Disrupting City, New Obstructions Threatened Today, Arrests Set U.S. Record For Single Day, Protestors Irk Citizens.
More than 7,000 persons were arrested in widespread hit-and-run skirminshes with police and federal troops in Washington yesterday as anti-war protestors made an unprecedented attempt to bring the government to a physical halt.
Jails, Courts Overburdened. 14
Keeping The City Open Took 4,000 Troops Deployed And 4,000 In Reserve, 1400 D.C. National Guardsmen The Bulk Of the 5100 man D.C. Police Force And Park And Capitol Police. 15 # # * #
Yesterday's picture of the City looked like this ... an estimated 11,000 to 12,000 demonstrators swarming through much of downtown Washington in the early morning blocking streets and tangling with police. 16 Lead Editorial
But you cannot be much swayed by a movement when its message is obliterated by its medium — the smashing of cars, the blocking of streets, the scattering of garbage, the invitation to violence, the battling with police. That is the tragedy of the ongoing upheaval in the Capital, it is not so much a protest as a rampage and the message is not lost; it is violated so that the movement is the loser in the end
The only possibility would seem to be that it will all get uglier as patience wears thin on the part of the weary and hard pressed police and on the part of private citizens. 17
Such then was the unfortunate, but nevertheless alarming situation which existed on May 5, 1971. The demonstrations of the two previous days could hardly be characterized as peaceful assemblies to petition for redress of grievances. They were segments of an unprecedented, sophisticated and calculated effort to shut down the Capital city of the United States of America. The May 5, 1971, Washington Post headlined “Capitol Rally Set Today by Rem *213 nants.” 18 Was it unreasonable for law enforcement officers to be apprehensive that these “remnants” of the mobs which had been smashing cars, blocking streets, scattering garbage and battling with police, whose leaders had been urging mass violations of the law and disruption of government functions; which had razed a wall at H.E.W. and blocked doors at the Justice Department; and which had apparently conspired to kidnap Henry Kissinger and bomb government buildings; might at any time erupt into another emotional cataclysm?
Violence undermines the order which is indispensable to liberty. The anti-war activities leading up to May 5, 1971 were designed to reduce the federal government to a shambles, to a mere tool of the violent. Certainly there was nothing in the events of the previous two weeks to inspire law enforcement officers with faith in man’s inherent goodness, nor had they any reason to believe that they were confronted with a paradigmatic display of a peaceful exercise of first amendment rights. Media reports continually recorded that the demonstrators actions were guided less by law than by emotions and violence. It is then against this background that I believe the legal liability of the law enforcement officers should be evaluated. As Judge Leventhal so aptly points out in quoting from Scheuer v. Rhodes, 416 U.S. 232, 247-48 , 94 S.Ct. 1683, 1692 , 40 L.Ed.2d 90 (1974), the qualified immunity of a government official depends upon “the existence of reasonable grounds for the belief formed at the time and in light of a 11 the circumstances, coupled with a good faith belief . . . (Concurring opinion at 1) (Emphasis added).
My Brethren’s instincts in protecting the civil rights of these appellees are sound, but I feel their prescriptions are fallacious. “All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community.” 19 I too am bound to utilize every legal avenue to guard, protect and enforce the strict observance of every person’s constitutional rights, but I also recognize that courts must deal with people. I cannot be blind to the realization that mankind learns to replace fancied fears with real dangers. Our judicial system exists basically for expressing the conscience of the nation.
As the tension created in part by the number of demonstrators mounted, the police officials, mindful of all that had gone before were bound to reach a punctum tempo — a point in time when they had to conclude that it was a ut tunc a ut numquam —now or never. An ancient scholar once asked “Quis locus eligenuus vastatus an vastatus ” — what place shall I choose — one that is destroyed or one that is going to be destroyed? Obviously these officers, pledged to maintain law and order, could not eschew action until the crisis exploded. The time had arrived when feckless tolerance could no longer serve as a substitute for the scalpel of arrest — and the officers did what their judgment, their training, their experience and their obligation required them to do. 20 It was the recognized and felt necessities of the time which impelled, and in my opinion, justified the action which was taken.
I am confronted with the findings of a jury on questions of fact and the studied rulings of a learned, careful and experienced trial judge in this case. I feel the end result of the trial court is a mistake and *214 a delusion. The opinion for the court enshrines this miscarriage by its self-justifying treatment of adroit intellectual symmetry — a sort of legal scholasticism. 21 My position is not in well-plowed fields, but I feel the shocking legal error in this case was the failure at trial and appellate levels to take judicial notice of the unfortunate acts of violence which preceded the events involved in the present case. 22 Had this legitimate and time-approved legal principle been properly presented at trial level and been properly established by admissible evidence, the police conduct, now held illegal, would have been portrayed in its true light and the immunity from civil damages of the police officials established as a matter of law. The results approved by the majority opinions display a complete blindness to reality. A verdict for the appellants would not shock the conscience of the nation, contribute to the abridgement of constitutional rights or destroy the fabric of society.
I respectfully dissent.
APPENDIX
Date Story Appeared in Post
Page
Headline, Story
April 21 A-l col. 5 VETS CAMP ON MALL BANNED BY BURGER
April 22 A-l col. 1 VETS DISOBEY COURT ORDER, SLEEP ON MALL
A-15 col. 1 WEARY VETS QUIETLY AWAIT POLICE MOVE
B-l col. 1 PROTESTORS THREATEN MASSIVE CITY TIE-UP. . .
Massive civil disobedience designed to halt functioning of government here. . . Protesters feel they must now resort to extra-legal tactics. . .
Leaders distribute Mayday Manual. . . Protest leaders envision massive traffic jams, expect 50,000
April 23 A-l col. 7 JUDGE LIFTS BAN ON VETS
A-6 col. 7 POLICE MOVE QUICKLY, GENTLY IN ARRESTING PROTESTING VETS
A-23 col. 7 Marquis Childs, VETERANS CAMP: WHAT THEY SEEK
This capital never looked more beautiful in perfect spring weather nor was it ever more troubled, confused and torn by the divisions — that wrack the country. Between the DAR ... the Vietnam Veterans against the War and . . . masses of tourists, it is enough to send the police right up the wall.
. . . The danger is always present that violence will break out. It is a much greater danger in the upcoming mass demonstrations.
Date
Page
Headline, Story
April 23 B-l col. 1 WHO, WHAT, WHEN, WHERE, WHY AND HOW TO (AND NOT TO) . . .
KEEP HEALTHY, KEEP OUT OF JAIL, KEEP FROM DRIVING INTO IT ALL
B-l HOW TO KEEP OUT OF JAIL
If you see a cop with a megaphone, no matter if you can’t hear what he’s saying or if he’s saying anything at all, walk as fast as you can away from there. He’s warning the crowd to disperse, and its no defense to say he didn't tel] you personally. Leave.
April 24 A-l col. 7 VETS LEAVE; MASS MARCH SLATED TODAY
col. 5 WAR PROTESTS 1965-1971
A-8 col. 1 Police have handled 289 demonstrations in the last year.
April 25 A-l col. 1 END WAR NOW, THRONG DEMANDS OVER 175,000 RALLY AT CAPITOL
A-l 6 col. 1 STARTING MONDAY, PROTESTERS’ AIMS TURN TO DISRUPTION
The planned actions signal a new order of militancy in the antiwar movement. Never before have antiwar leaders urged mass violations of the law and disruption of government functions.
April 26 A-l col. 5
PROTESTERS SHUT N.J. TURNPIKE 10 DAY PROTEST TO BEGIN, GOVERNMENT DISRUPTION SCHEDULED
A-16 col. 1 Lobbying, Sit-ins to Mark Protests
*215 Date
Page
Headline, Story
April 27 A-l col. 1 D.C. GUARD TO TRAIN; PROTESTS DISRUPT HILL
A-ll col. 1 DEMONSTRATORS CAMP OUT, FREAK OUT IN THE PARK
April 28 A-l col. 3 CHURCHMEN ASK NATION TO REPENT WAR
April 29 A-l col. 7 GIRL ARRESTED AS WITNESS IN CAPITOL BLAST—
col. 2 200 ARRESTED, BOND RAISED FOR PROTESTORS
April 30 A-l col. 1
ARRESTS HALT WAR MARCH
224 SEIZED AFTER RAZING WALL AT HEW
col. 6 PRESIDENT SAYS PROTESTS WON’T INTIMIDATE HIM
May 1 A-l col. 7 KIDNAP PLOT DETAILS BARED; MORE INDICTED
A federal grand jury issued a new indictment yesterday in the alleged conspiracy to kidnap Henry Kissinger and bomb government buildings.
A-l col. 2 370 SEIZED BLOCKING DOORS AT JUSTICE
A-l col. 3 7,300 POLICE GUARDSMEN, READIED TO COUNTER DISRUPTION NEXT WEEK
A-5 col. 1 Judges Set Night Duty to Set Bond
May 2 A-l col. 7 TROOPS MOVE IN TO AREA VISITORS MASS TO TIE-UP CITY; 60,000 IN PARK
Several thousand federal troops were readied for possible trouble in the next three days as the city’s third consecutive week of antiwar activities began yesterday. . . .
May 2 A-l The Pentagon announced that army, air force and marine corps troops were ready.
A-l col. 4 Portrait of a Washington War Protest SPIRIT OF MILITANCY RISES
A-16 col. 5 NUMBERS TO CALL FOR TRAFFIC DATA
B-6 0oL1 Lead Editorial
MONDAY, MAY 8; SOME OBLIGATIONS
It seems almost unnecessary to say that the army of anti-war demonstrators who hope to paralyze Washington, tomorrow cannot be permitted to succeed. . . . For this, presumably we will have police and troops at hand, men who in the past have demonstrated a high degree of sense and restraint in coping with disorderly protest . . . There has been enormous pressure on the police and officialdom over the past week, but we remain hopeful and confident that they will deal with the planned disturbance and disturbers in a firm, but disciplined and orderly way.
May 8 A-l col. 6 CAMPERS OUSTED, STILL PLANNING TO SNARL CITY TODAY
DAWN SWEEP CLEANS PARKS OF 45,000
A-l col. 7 JUSTICE CALLED SHOT ON CLOSING CAMP
May 4 A-l col. 7 7,000 ARRESTED DISRUPTING CITY NEW OBSTRUCTIONS THREATENED TODAY
Date
Page
Headline, Story
May 4 col. 3 ARRESTS SET U.S. RECORD FOR A SINGLE DAY
col. 5 PROTESTERS IRK CITIZENS
May 4 A-l co1* 5 JAILS, COURTS OVERBURDENED
More than 7,000 persons were arrested in widespread hit-and-run skirmishes with police and federal troops in Washington yesterday as anti-war protesters made an unprecedented attempt to bring the government to a physical halt.
* * *
Just before the dissidents took to the streets a message from President Nixon asking that Washington be kept “an Open City” was read over the police radio network at 5:00 a.m.
Keeping the city open took 4,000 troops deployed and 4,000 in reserve, 1,400 D.C. National Guardsmen, the bulk of the 5,100 man D.C. police force and Park and Capitol police.
* * *
Yesterday’s picture of the city looked like this:
an estimated 11,000 to 12,000 demonstrators swarming through much of downtown Washington in the early morning blocking streets and tangling with police.
A-1S col. 1 COMMUNICATIONS, LUCK KEEP FORCES ONE UP ON PROTESTORS
A-16 oo1-1 Lead Editorial
THE MOVEMENT, THE MEDIUM AND THE MESSAGE
But you cannot be much swayed by a movement when its message is obliterated by its medium — the smashing of cars, the blocking of streets, the scattering of garbage, the invitation to violence, the battling with police. That is the tragedy of the ongoing upheaval in the Capital, it is not so much a protest as a rampage and the message is not just lost; it is violated so that the movement is the loser in the end.
The only possibility would seem to be that it will all get uglier, as patience wears thin on the part of the weary and hardpressed police and on the part of private citizens. With some exceptions forebearance was the word yesterday, for which all of us, and not the least of all the main body of the demonstrators, owe some debt to the skill and discipline of the police and the security forces.
May 5 A-1 col. 8
2,700 MORE JAILED IN PROTESTS
SEIZED CROWN AT JUSTICE
CAPITOL RALLY SET TODAY BY REMNANTS
A-l col. 7 MASS ARRESTS DIRECTED BY JUSTICE DEPARTMENT
A-l col. 3 SOME LEAVE DEJECTEDLY, OTHERS DIG IN
A-16 col. 8 CAPITAL WITNESSES SECOND DAY OF CIVIL DISOBEDIENCE...
“TOMORROW WE INTEND TO BE BACK”
A-24 col. 1 Chief Wilson and his men are not to blame, With some exceptions, the Police Department as well as other area police forces and the military units all performed commendably given the job they had to do. There were some serious lapses, in which individual policemen used their clubs too readily and
*216 Date
Page
Headline, Story
May 5 A-24 col. 1 in which innocent bystanders, particularly if they happened to have long hair, were arrested without cause. But one could not look at the buses of policemen as they sped across town without having some sympathy for the strain and near exhaustion under which they have worked. The task Chief Wilson was given — to keep the city's traffic running at almost any cost — was a formidable one. And he has gotten no public backing from the man who assigned him the task, the President, who simply left town.
May 6 A-l col. 5 1,200 PROTESTERS ARRESTED AT CAPITOL
Police arrested 1,161 singing, clapping and dancing antiwar demonstrators yesterday after the protesters forced the closing of the Capitol on the third day of their program of large scale disobedience.
Protesters who crowded the east steps of the House of Representatives yesterday afternoon did not appear to be winding down their peace efforts.
A-l col. 5 Haynes Johnson, PROTESTERS POINT UP CONFLICT OF RIGHTS
“It has long been a grave question whether any government, not too strong for the liberties of its citizens, can be strong enough to maintain its existence in great emergencies.”
Abraham Lincoln
May 6 A-l That old American dilemma has never been more clearly in focus than this spring week in Washington. The demonstrators have made their protests, the government has survived, but citizens everywhere are wrestling with disturbing questions in the latest aftermath of massive acts of civil disobedience.
The basic question involves probably the most delicate, complex, and central theme of American life-rights; the citizen's right to assemble peacefully and petition for redress of grievances, and the right to move freely without impairment. The rights of a majority — and a minority. The right to due process of law, and the right to be free from excessive bail or subject to cruel and unusual punishment. ... All of these came in direct conflict this week in the streets and prison compounds and courtrooms of Washington. They have left Washington a troubled city.
A-14 col. 1 Capitol Police Chief James M. Powell announced over a bullhorn that the demonstrators would be arrested in ten minutes if they remained on the steps. His announcement was drowned out by the noise of the demonstrators.
The mass arrests on the Capitol Steps came with the approval of House Speaker Carl Albert. Albert told reporters that he had been informed by Powell that the demonstrators should be removed from the steps, and he said he answered “OK”.
A-19 col. 7 William Raspberry,
MIXED EMOTIONS ABOUT MAY DAY
1 am afraid, too, what might result if it were demonstrated that massive and ugly disruptions could result in major policy changes.
Date
Page
Headline, Story
If government decisions come to be made that way, we might wake up to discover that apartheid has become official American policy.
Or genocide.
May 10 C-l col. 5 D.C. POLICEMEN GET SOME SLEEP AS DAY IS LARGELY PROTESTLESS
After nineteen straight days of handling demonstrations, policemen here slept late yesterday morning . . .
. The coordinators of the May Day group felt that they could not prevent the authorities from infiltrating their group and therefore any efforts to keep their plans secret would only serve to confuse the participants. J.A. 2463. As a result they published and distributed the May Day Tactical Manual. J.A. 2456-79. The Manual outlined the procedures to be followed by the demonstrators and also contained a schedule of the demonstrations set for May Week. J.A. 2460. The climax of this anti-war effort was set for Wednesday, May 5, 1971. The outline called for all the people who had not been arrested on May 3 or 4 to move to the Capitol building to lay a nonviolent siege demanding that Congress ratify the Peoples’ Peace Treaty and to remain there until the Treaty was ratified or all were arrested. J.A. 2460, 2464. The Manual made it quite clear that the singular objective of this effort was to close down the federal government. J.A. 2458, 2460.
. The Washington Post, April 22, 1971, § B at 1, col. 1.
. Marquis Childs, Veterans Camp: What They Seek, The Washington Post, April 23, 1971, § A at 23, col. 7.
. The Washington Post, April 24, 1971, § A at 8, col. 1.
. Id, April 25, 1971, § A at 1, col. 1.
. Id, April 26, 1971, § A at 1, col. 5.
. Id, April 27, 1971, § A at 1, col. 1.
. Id, April 29, 1971, § A at 1, col. 2, 7.
. Id., April 30, 1971, § A at 1, col. 1.
. Id., May 1, 1971, § A at 1, col. 7.
. Id., May 2, 1971, § A at 1, col. 1, 4.
. Id., § B at 6, col. 1.
. Id., May 3, 1971, § A at 1, col. 6.
. Id., May 4, 1971, § A at 1, col. 3, 5, 7.
. Id., col. 7.
. Id.
. Id, at 16, col. 1.
. Id., May 5, 1971, § A at 1, col. 8.
. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 488 , 41 S.Ct. 172, 184 , 65 L.Ed. 349 (1920) (Brandeis, J., dissenting).
. As Chief Justice Burger noted in Scheuer , the underlying rationale of official immunity is the sense of the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligation of his position, to exercise discretion, and the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good. 416 U.S. at 240 , 94 S.Ct. 1683 . If a police officer is to be held accountable for millions of dollars in damages for carrying out the duties of his office his willingness to execute those duties with the decisiveness required by the public good will be greatly deterred if not utterly destroyed.
. The reliance on Nicholson by the court’s opinion is unique in that federal appellate courts usually look upward for guidance rather than to an unpublished opinion of an inferior court. Is this not an obvious means of attempting to move philosophically where it is impossible to arrive legally?
. Although the Chief Justice concluded in Scheuer that it was inappropriate for the court there to take judicial notice of the “mob rule” conditions in existence, such a procedure is by no means foreclosed. 416 U.S. at 249-50 , 94 S.Ct. 1683 . The Court ruled that since there was no opportunity afforded petitioners to contest the facts assumed, and since there was no evidence before the court from which a finding of good faith could properly be made, it was improper for such a conclusion to be judicially noticed. Id.
However, in Washington Mobilization Committee v. Cullinane, 184 U.S.App.D.C. at-- -, 566 F.2d at 114-115, No. 75-2010 (D.C. Cir. April 12, 1977), this court noted with approval that the district court had taken judicial notice of the facts recited in our opinions concerning the May Day 1971 demonstrations, i. e. Apton v. Wilson, 165 U.S.App.D.C. 22 , 506 F.2d 83 (1974); and Sullivan v. Murphy, 156 U.S.App.D.C. 28 , 478 F.2d 938 , cert. denied, 414 U.S. 880 , 94 S.Ct. 162 , 38 L.Ed.2d 125 (1973). The district court should have done likewise in this case.