Petition — City of Louisville v. Glasson

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IN THE

SUPREME COURT OF THE UNITED STATES.

October Term, 1974

No. 95-383

CITY OF LOUISVILLE

FRANK W. BURKE

GEORGE BURTON

COL. C. J. HYDE

LT. ELMER JOHNSON

PATROLMAN WALTER MEDLEY - - Petitioners

versus

MARJORIE GLASSON - - - - ~~ Respondent

PETITION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BURT J. DEUTSCH

Director of Law

MARTIN R. GLENN

Assistant Director of Law

CARSON P. PORTER

Assistant Director of Law

Department of Law

200 City Hall

Louisville, Kentucky 40202

Attorneys for Petitioners

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-—P.O. BOX 3251, LOUISVILLE, KY.

TABLE OF CONTENTS

PAGE

ee I ns dc connec bedspesséeeeeseesessé i- 2

Ee te ee uc cececaeaeiieskreeeies 2

Ne ee ee wkcdnesaeeses 2

Constitutional Provisions Involved................. 3

Gs 555 5 oth abd pccenieatebie dusnceue 3 5

Statement of the Case................ ccc cecscccees 6- 9

Reason for Granting the Writ..................... 10-26

I. This Court Should Grant Certiorari to Con-

sider Whether The Court of Appeals Below

Erred in Reversing the Judgment of The Dis-

trict Court Below and in Holding That Whether

Petitioners Acted in Good Faith and Without

an Invidious Discriminatory Intent Was an

“Ultimate Finding” and Therefore Not Sub-

ject to the “Clearly Erroneous Rule” of Fed.

Be te SE dckdn nue cars saied'enntee ae haees 10-15

If. This Court Should Grant Certiorari to Consider

Whether the Court of Appeals Below Erred in

Reversing the Judgment of the District Court

Below and in Holding That the District Court’s

Finding That Petitioners Acted Reasonably

and in Good Faith and Without an Invidious

Discriminatory Intent was Erroneous... ..... 15-16

PN 0-6 0's dec cidricowncesccébececsvevcetonss 26

BORE 6 bo casnnndnvics Hddecdsndibecs doccecceqes 27-54

A. Opinion of the District Court Below.......... 27-29

B. Opinion of the Sixth Cireuit Court of Appeals

Se «hu Veunenanbenctesesian + éeeeenxeenees 30-55

TABLE OF AUTHORITIES

Cases: iain

Adamian v. University of Nevada, 359 F. Supp. 825

‘Gee Se, HL sb habe chee kcsuekesnueteteates 19

Agnew v. City of Compton, 239 F. 2d 226 (9th Cir.

BIA V6 ivhrsakeaknauneeusaieass chan eeusees 19

Ames v. Vavreck, 356 F. Supp. 931 (D. Minn. 1973) .12-13

Anderson v. Nosser, 438 F. 2d 183 (5th Cir. 1971).. 15

Cordovan Associates, Inc. v. Dayton Rubber Co.,

290 F’. 2d 858 (6th Cir. 1961)..............002- 14

Gabbard v. Rose, 359 F. 2d 182 (6th Cir. 1966)..... 19

Gregoire v. Biddle, 177 F.. 2d 579 (2nd Cir. 1949)... 19

Griffin v. Breckinridge, 403 U. S. 88, 91 S. Ct. 1790,

oe | I Sees Se rey pe 23-24

Handverger v. Harvill, 479 F. 2d 513 (9th Cir.

6 eS WN i ke 4 ee K NE ee ads os 20

Hill v. Rowland, 474 F. 24 1374 (4th Cir. 1973)..... 20-21

Mazzella Blasting Mat Co., Inc. v. Vitiella, 250 F.

ey TE, Se cc dc ccc beceeske-vasee 18

O’Brien v. Galloway, 362 F. Supp. 901 (D. Del.

Ga Toa dns ons Ga condi eee dbs oe keane aes 19-20

Pierson v. Ray, 386 U. S. 547, 87 S. Ct. 1213, 18

L. Ed. 2d 288 (1967)... ....... 10-11, 12-13, 15, 19, 21

Plack v. Baumer, 121 F. 2d 676 (3rd Cir. 1941)... .11-12

Pocket Books, Inc. v. Walsh, 204 F. Supp. 297 (D.

ey MTs & ava deed eee seen RUscds Rieke (ss 20

Rodriguez v. Jones, 473 F. 2d 599 (5th Cir. 1973) .13-14, 15

Sapp v. Renfroe, 511 F. 2d 172 (5th Cir. 1975)..... 23

Smith v. Ross, 482 F. 2d 33 (6th Cir. 1973)........ 14

Sparrow v. Goodman, 361 F. Supp. 566 (W.D. N.C.

ERE re RE RS Oe AEE OR, Se 12

United States v. Oregon Medical Society, 343 U. S.

326, 72 S. Ct. 690, 96 L. Ed. 778 (1951)......... 19

United States v. Yellow Cab Co., 338 U. S. 338, 67

S. Ct. 1560, 94 L. Ed. 150 (1949)............... 17

United States v. United States Gypsum Co., 333

‘Uz S. 364, 68 S. Ct. 525, 92 L. Ed. 746 (1948).... 15

ili

Cases: (Cont’d) —

Walling v. General Industries Co., 330 U. S. 545, 67

S. Ct. 883, 91 L. Ed. 1088 (1947)............... 18

Wood v. Strickland, 420 U. 8. 308, 95 S. Ct. 992, 43

OE LE _l ee 22, 23

Zenith Radio Corp. v. ilazeltine Research, Inc., 395

U. S. 100, 89 S. Ct. 1542, 23 L. Ed. 2d 129 (1969). 16

United States Constitution:

ME oe o6nscecsdrcocesevecvescesss 3, 20

i re . cc ccesecceereecesecves 3

Statutes:

42 U.S.C. Section 1983... .......... 3, 6, 12, 15, 19, 20, 22

pe, SS DEY 6 @ sa csces yp éccdsedecesnens 3, 6

Fed. Rules Civ. Proc. Rule 52(a), 28 U.S.C.. .2, 3, 10, 14,

15, 18, 24

Fed. Rules Civ. Proc. Rule 56, 28 U.S.C........... 3,13

42 U.S.C. Section 1985(3)... ............ 2, 3, 6, 9, 23, 24

Treatises:

5A Moore’s Federal Practice, 2d Ed... ........ 11, 12, 15

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

City oF LOUISVILLE

FraANK W. BURKE

GEORGE BuRTON

Cot. C. J. Hype

Lr. ELMER JOHNSON

PATROLMAN WALTER MEDLEY : - Petitioners

MaRJoRIE GLASSON - - - - #£Respondent

PETITION FOR WRIT OF CERTIORARI

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to

_ review the judgment herein of the United States Court

of Appeals for the Sixth Circuit entered in the above-

entitled case on June 13, 1975.

OPINION BELOW

The opinion of the Sixth Circuit Court of Appeals

reversed the judgment of the United States District

Court for the Western District of Kentucky, in hold-

ing that when the Petitioner, Officer Medley, destroyed

the Respondent’s poster she was engaged in activity

protected by the First and Fourteenth Amendments;

and that such action was unreasonable and not taken

in good faith. Furthermore, the Court ruled that Peti-

tioners’ actions violated Respondent’s constitutional

rights, and that such actions were undertaken pursuant

to an impermissably invidious discrimination remedial

under 42 U.S.C. §1985(3). The Court of Appeals fur-

ther held that the findings of the District Court as to

good faith and discriminatory intent were not subject

to the ‘‘clearly erroneous rule’’ of Fed. R. Civ. P. 52(a).

JURISDICTION

The judgment of the United States Court of Ap-

peals was entered on June 13, 1975. Jurisdiction of

this Court is invoked under 28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

Did the Court of Appeals below err in reversing the

judgment of the District Court below and in holding

that the trial court’s findings were not subject to the

requirements of the ‘“‘clearly erroneous rule’’ of

Fed. R. Civ. P. 52(a) ?

II.

Did the Court of Appeals below err in reversing

the judgment of the District Court below and in hold-

ing that Petitioners acted unressonably and not in

good faith and that their actions were pursuart to an

impermissably invidious discriminatory intent?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment I

‘‘Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or of the right of the people peaceably to as-

semble, and to petition the government for a redress of

grievances.”’

Amendment XIV, Section 1

‘*. ,. . nor shall any state deprive any person of

life, liberty, or property, without due process of

yore ws

STATUTES INVOLVED

42 U.S.C. Section 1983

‘‘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

citizens of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges or immunities secured by the Consti-

tution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper pro-

ceeding for redress.”’

28 U.S.C. Section 1343

‘“*The district courts shall have original jurisdiction

of any civil action authorized by law to be commenced

by any person:

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity secured by

the Constitution of the United States or by any Act

of Congress providing for equal rights of citizens or of

all persons within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for

the protection of civil rights, including the right to

vote.”’

42 U.S.C. Section 1985

‘*(3) If two or more persons in any State or Terri-

tory conspire or go in disguise on the highway or on the

premises of another, for the purpose of depriving,

either directly or indirectly, any person or class of per-

sons of the equal protection of the laws, or of equal

privileges and immunities under the laws; or for the

purpose of preventing or hindering the constituted

authorities of any State or Territory from giving or

securing to all persons within such State or Territory

the equal protection of the laws; or if two or more per-

sons conspire to prevent by force, intimidation, or

threat, any citizen who is lawfully entitled to vote, from

giving his support or advocacy in a legal manner,

toward or in favor of the election of any lawfully

qualified person as an elector for President or Vice

President, or as a Member of Congress of the United

States; or to injure any citizen in person or property on

account of such support or advocacy; in any case of

conspiracy set forth in this section, if one or more per-

sons engaged therein do, or cause to be done, any act in

furtherance of the object of such conspiracy, whereby

another is injured in his person or property, or deprived

of having and exercising any right or privilege of a

citizen of the United States, the party so injured or

deprived may have an action for the recovery of dam-

ages, occasioned by such injury or deprivation, against

any one or more of the conspirators.”’

Fed. Rules Civ. Proc., Rule 52{a), 28 U.S.C.

‘« | , Findings of fact shall not be set aside unless

clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge of the credibility

of the witnesses . . .”’

Fed. Rules Civ. Proc., Rule 56(c), 28 U.S.C.

‘« | . The judgment sought shall be rendered forth-

with if the pleadings, depositions, answers to interroga-

tories, and admissions on file, together with the affi-

davits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled

to a judgment as a matter of law. . .”

STATEMENT OF THE CASE

The Respondent, Marjorie Glasson, filed suit on

July 13, 1971, in the United States District Court for

the Western District of Kentucky, under Title 28

U.S.C. Sections 1331 and 1343, and under Title 42

U.S.C. Sections 1983 and 1985. Respondent instituted

this action against Petitioners for compensatory and

punitive damages which she alleged were a result of a

violation, by Petitioners, acting under color of state

law, of her civil rights in general and violation of her

rights of association, assembly, speech and the right to

petition her government for a redress of grievances

guaranteed her under the First Amendment to the Con-

stitution of the United States. Respondent simultane-

ously alleged a violation of her right to the equal pro-

tection of the laws guaranteed under the Fourteeath

Amendment. Respondent further alleged that in doing

the acts complained of Petitioners were conspirators

engaged in a scheme to deprive Respondent of her con-

stitutional rights and particularly those hereinabove

enumerated.

Respondent’s suit was brought against the Peti-

tioners, City of Louisville, Frank W. Burke, then

Mayor of the City of Louisville, George Burton, then

Director of Safety of the City of Louisville, Col. C. J.

Hyde, then Chief of Police of the Louisville Police

Department (since retired), Lt. Elmer Johnson and

Patrolman Walter Medley, members of the Louisville

Police Department both at the time Respondent’s claim

arose and presently.

In her brief to the United States Court of Appeals

for the Sixth Circuit, Respondent conceded that she

had no claim against the City of Louisville and stated

that she 7id not wish to pursue her claims against

Frank W. Burke and George Burton.

On July 14, 1970, the former President of the

United States, Richard M. Nixon, came to visit the

City of Louisville. Petitioners were members of the

Louisville Police Department, working in coordination

with the F.B.I. and the Secret Service, to provide

security and protection of the President and the crowd

of onlookers as the presidential motorcade passed.

On this day, Respondent was bearing a placard

which she alleged and testified read: ‘‘Lead us to hate

and kill poverty, disease and ignorance—not each

other.’’ Petitioners gave conflicting testimony that

the message contained the word ‘‘Murderer’’ at the top

of the sign in larger and bolder letters.

Petitioners, Johnson and Medley, assigned to duty

to protect the President, were patrolling their area

which included the intersection of Fourth Street and

Guthrie, where Respondent was standing. It was their

- duty to observe the people and to be alert for any

activity within the crowd which would create a dis-

turbance or cause confusion or such conduct that could

interfere with the progress of the motorcade, which

could jeopardize the safety of the President, or other-

wise be hazardous to others in the crowd, composed of

onlookers.

The District Court, in its Finding of Fact, ac-

cepted the testimony of Petitioners that as the presi-

dential motorcade approached the area adjacent to the

point at which Respondent was standing, Fourth and

Guthrie, Petitioner—Medley noticed a commotion in

the crowd across the street and persons pointing and

calling across the street directing attention to the sign

being held by Respondent.

Petitioner Medley, after reading the sign, crossed

the street and entered into a discussion with his super-

ior, Petitioner Johnson, concerning the contents and

effect of the message. It was determined by them that

the message was inflamatory and was, in their judg-

ment, creating rancor and resentment in the crowd

which could impede the progress of the motorcade and

jeopardize the safety of the President, other members

of the motorcade and the onlookers in the crowd.

Petitioner Johnson directed Petitioner Medley to

go to Respondent and request that she take down the

sign; and if she would not voluntarily do so, Petitioner

was to take it from her in order to eliminate the hazard.

Petitioner Medley approached Respondent and re-

quested that she take down the sign, and upon her re-

fusal to do so, he removed it from her and destroyed it.

The District Court dismissed the Complaint against

the Petitioner, City of Louisville, it not being a person

under the statute. On March 5, 1973, the case was tried

to the court without a jury. At the conclusion of the

testimony, the District Court dismissed the suit at Re-

spondent’s expense and Judgment for Petitioners was

entered. The District Court, entering its Findings of

Fact and Conclusion of Law on March 28, 1973, found

that Petitioners Johnson and Medley, upon observing

a commotion stirring in the crowd caused by Respond-

ent’s sign, acted in good faith and upon reasonable

grounds, and that their decision and action in removing

the sign ffom Respondent and destroying it were within

the ambit of permissible discretion as it appeared at

the time, considering the imminent arrival of the Presi-

dent. As to the 42 U.S.C. 1985(3) claim, the District

Court found no evidence of ‘‘class based invidious dis-

criminatory animus’’ as required to be an element of

the cause of action.

Subsequently, Respondent appealed to the United

States Court of Appeals for the Sixth Circuit. On

June 13, 1975, the Court of Appeals reversed the Dis-

trict Court’s judgment and remanded the case for fur-

ther proceedings. In so doing, the Court of Appeals

held that the District Court had erred in entering judg-

ment for Petitioners ho!ding that the Petitioners acted

in bad faith and with an impermissible discriminatory

animus.

It is from the judgment of the Court of Appeals

below that Petitioners make applicatior for a Writ of

Certiorari.

REASON FOR GRANTING THE WRIT

This Court Should Grant Certiorari to Consider Whether

the Court of Appeals Below Erred in Reversing the

Judgment of the District Court Below and in Holding

That Whether Petitioners Acted in Good Faith and

Without an Invidious Discriminatory Intent Was an

“Ultimate Finding” and Therefore Not Subject to the

“Clearly Erroneous Rule” of Fed. R. Civ. P. 52(a).

The judgment of the District Court that Petitioners

acted reasonably and in good faith and without dis-

criminatory intent was, in that regard, a finding of fact,

and not a finding of law.

However, in reaching this issue the Court of Ap-

peals held:

‘‘Although generally findings of fact by a trial

court must be accepted by an appellate court un-

less they are clearly erroneous, F. R. Civ. P. 52(b),

(sic), determinations, whether called ultimate find-

ings or conclusions of law, that attach legal sig-

nificance to historical facts may be reversed if

upon examination of the record they are found to

be erroneous.’’ (Appendix B, p. 36)

In the leading case establishing that a good faith

defense exists for law enforcement officers in actions

under §1983, Pierson v. Ray, 386 U. S. 547, 18 L. Ed.

2d 84, 288 S. Ct. 1213 (1967), this Court stated that

the question whether law enforcement officers act in

good faith is a jury question. In Pierson, supra, peti-

tioners were arrested by municipal police officers on

charges of having violated the Mississippi breach-of-

peace statute as they attempted to use segregated

facilities at an interstate bus terminal. At trial on a

§1983 action, petitioners and respondent police officers

presented conflicting evidence whether a crowd had

gathered at the bus terminal and whether imminent

violence was likely. In regard to whether arrests made

by the respondents under such alleged circumstances

were made in good faith, this Court stated:

‘“(The officers) testified in contradiction to the

ministers, that a crowd gathered and that imminent

violence was likely. If the jury believed the testi-

mony of the officers and disbelieved that of the

ministers, and if the jury found that the officers

reasonably believed in good faith that the arrest

was constitutional then a verdict for the officers

would follow even though the arrest was in fact

unconstitutional.’’ 386 U.S., at 557.

Under facts strikingly similar to those now before

the Court, this Court stated that the question of good

faith as a defense to a $1983 action is a question for the

finder of fact.

It is beyond dispute that, ‘‘To draw a distinction

between fact and law is difficult if not impossible to

make at times.’’ 5 Moore’s Federal Practice, 2d Ed.,

See. 52.05(1), pp. 2689-2690.

in attempting to distinguish between the two, Pro-

fessor Moore states that illustrative cases will aid in

such determination and chooses as his first illustrative

ease Plack v. Baumer, 121 F. 2d 676 (3rd Cir. 1941).

In this case the court affirmed the judgment of the trial

court sitting without a jury and held that a finding of

defendant’s good faith in a conversion action was a

finding of fact. Professor Moore quotes Plack at 121

F. 2d 679,

‘* . =. What the court found was that, if the

defendant dealt with the collateral in a manner

violative of plaintiff’s rights as owner, it did so

innocently and in good faith, and with no intent to

ignore the owner’s rights. And that, of course, is

a finding of fact.’’

In Civil Rights cases, the courts consistently have

found the issue of a defendant’s good faith to be an

issue of fact.

In Sparrow v. Goodman, 361 F. Supp. 566 (1973), a

class action brought against law enforcement officers,

inter alia, for infringement of plaintiffs’ rights to

freedom of speech, to peacefully assemble and to peti-

tion for redress of grievances, the court denied defend-

ant’s motion for summary judgment and dismissal

based upon good faith defenses, and held:

‘*The existence of their good faith, the absence of

an illegal motive (such as suppression of dissent)

and the reasonableness of the belief of the Secret

Service and other law enforcement officials are

questions of fact “4s

The court ordered that the case would stand for trial

upon those and other issues.

Likewise in Ames v. Varveck, 356 F. Supp. 931

(1973), involving a §1983 action, the court, citing

Pierson, supra, denied defendant’s motions for dis-

missal and summary judgment based upon good faith

defenses because the question of good faith was found

to be a question not of law but of fact. ‘‘ Because of

the factual nature of defendant police officers’ de-

fense, neither dismissal nor summary judgment can be

granted.’’ 356 F. Supp. at 938.

Petitioners respectfully submit that if a good faith

defense presents a genuine issue as to a material fact

for the purposes of 28 U.S.C. Rule 56, a finding upon

such a defense constitutes a finding of fact for the pur-

poses of 28 U.S.C. Rule 52(a) and that accordingly

such a finding cannot be set aside unless clearly

erroneous.

Failure to examine the record within the restraints

of the proper test was serious, prejudicial error. The

present case, as was Pierson, is essentially an inquiry

into motive and intent. This is inherently a subjective

inquiry, although certain objective standards of rea-

sonableness must be applied. To conduct such an in-

quiry on the basis of a mere transcript is to ignore

the most valuable technique of all—observance of the

demeanor of the witness as he testifies. It is for this

reason that this Court has stated that ‘‘good faith’’

in a §1983 context is a jury question. In Rodriguez

v. Jones, 473 F. 2d 599 (5th Cir. 1973), the Fifth

Circuit applied the clearly erroneous standard to the

findings of the District Court in a civil rights action

arising out of an alleged illegal entry. The Court

states :

‘*We are unable to say these findings are clearly

erroneous . . . credibility choices and the reso-

lution of conflicting testimony are within the prov-

ince of the court sitting without a jury, subject

only to the clearly erroneous rule of Fed. R. Civ.

P. 52(a).”’. 473 F. 2d, at 604. (Emphasis added.)

Even the Sixth Circuit has applied the clearly er-

roneous test to a finding of good faith in a §1983 ac-

tion. In Smith v. Ross, 482 F. 2d 33 (6th Cir. 1973),

a civil rights action was brought against a deputy

sheriff and others by members of an interracial band.

The District Court found that the deputy acted in good

faith and the Court of Appeals affirmed because ‘‘the

facts as found by the district court support its judg-

ment’’, and ‘‘are not clearly erroneous, Fed. R. Civ.

P. 52(a)’’. 482 F. 2d, at 37, at 36. It is difficult to

reconcile Smith, supra, with the present case.

The only cases cited by the Court of Appeals to

support its contention that the clearly erroneous rule

is inapplicable are Sixth Circuit cases. The principle

case is Cordovan Associates, Inc. v. Dayton Rubber

Co., 290 F. 2d 858 (6th Cir. 1961), where the issue was

interpretation of a written contract. The Petitioners

have no argument with the holding expressed therein:

‘*The interpretation and construction of a written

contract are matters of law within the competence

of the Court of Appeals to review and do not come

under the clearly erroneous rule.’’ 290 F. 2d, at

860.

The rationale is that a reviewing court is equally

competent to review written evidence. However, this

rationale does not apply to instances where credibility

is central to the issue at hand.

In dealing with mixed questions of law and fact,

findings are not binding on reviewing courts when an

incorrect principle of law has been applied to the facts.

United States v. United States Gypsum Co., 333 U.S.

364, 396, 68 S. Ct. 525, 92 L. Ed. 746 (1948) ; 5a Moore’s

Federal Practice, 2d Ed., See. 52.03(2), pg. 2664. This

is not the case before us. The District Court and the

Court of Appeals are in agreement as to the propriety

of a good faith defense in $1983 actions.

Finally, this Court should grant certiorari to recon-

cile the conflict between the Fifth and Sixth Circuits.

In Rodriguez, supra, and Anderson v. Nosser, 438 F.

2d 183 (5th Cir. 1971), the Fifth Circuit correctly

labeled the Pierson good faith defense as a question

of fact for jury consideration. The Court stated:

“The Pierson test is a subjective one, which of

necessity raises questions of credibility, usually

within the province of the jury. Here there was

testimony from Robinson that he believed he was

doing his duty as a peace officer in arresting plain-

tiffs

We therefore think that there was sufficient evi-

dence to raise an issue of the Pierson defense. The

court below submitted this issue under the proper

instructions, and we are thus bound by the jury

determination of no liability.”’ 438 F. 2d, at 195.

Petitioners respectfully submit that the Court of

Appeals erred in refusing to limit their inquiry pur-

suant to Fed..R. Civ. P. 52(a).

II.

This Court Should Grant Certiorari to Consider Whether

the Court of Appeals Below Erred in Reversing the

Judgment of the District Court Below and in Holding

That the District Court’s Finding That Petitioners

Acted Reasonably and in Good Faith and Without an

Invidious Discriminatory Intent Was Erroneous.

The judgment of the District Court that the Peti-

tioners acted reasonably and in good faith and without

an invidious discriminatory intent was not clearly er-

roneous. Federal Rule of Civil Procedure 52(a) states

in pertinent part: ‘Findings of fact shall not be set

aside unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge of

the credibility of the witnesses.’’ In the present case

the Court of Appeals has failed to give due weight to

the superior position of the District Court in weighing

the conflicting testimony. In Zemth Radio Corpora-

tion v. Hazeltine Research, Inc., 395 U. 8. 100, 89 S. Ct.

1562, 23 L. Ed. 2d 129 (1969), this Court stated:

‘*In applying the clearly erroneous standard to the

findings of a district court sitting without a jury,

appellate courts must constantly have in mind that

their function is not to decide factual issues de

novo. The authority of an appellate court, when

reviewing the findings of a judge as well as those

of a jury, is circumscribed by the deference it must

give to decisions of the trier of the fact, who is

usually in a superior position to appraise and weigh

the evidence.”’’ 395 U.S., at 123.

It is clear from the record, and Judge Gordon states

that ‘‘there is, of course, considerable conflict in the

evidence’? (App. A, pg. 28). Under such circum-

stances, the trial judge is faced with a clear choice

between opposing perspectives. In view of the impor-

tance of the credibility of opposing witnesses such a

choice cannot be deemed clearly erroneous. In United

States of America v. Yellow Cab Company, 338 U. 8S.

338, 67 S. Ct. 1560, 94 L. Ed. 150 (1949), this Court

has stated:

‘*While, of course, it would be our duty to correct

clear error, even in findings of fact, the Govern-

ment has failed to establish any greater grievance

here than it might have in any case where the evi-

dence would support a conclusion either way but

where the trial court has decided it to weigh more

heavily for the defendants. Such a choice between

two permissible views of the weight of evidence is

not ‘clearly erroneous’.’’ 338 U. S., at 342.

Likewise, this Court has recognized the overwhelm-

ing importance of witness credibility in the determi-

nation of motive, which is essential to the affirmative

defenses of good faith and lack of discriminatory in-

tent:

‘Findings as to the design, motive, and intent with

which men act depend peculiarly upon the credit

given to witnesses by those who see and hear them.”’

338 U.S., at 341.

The inferences drawn by the District Court from

the testimony are supported by the evidence. Such in-

ferences are similarly protected by Fed. R. Civ. P. 52

from undue inquiry.

‘*We believe that the evidentiary facts afford an

adequate basis for the inferences drawn by the

Court in making such additional findings. At the

least, we think that in drawing such inferences the

Court was not clearly wrong, and conclude that the

findings should therefore have been left undis-

turbed. The Cireuit Court of Appeals’ rejection

of those findings cannot rest on the conflicting tes-

timony of petitioner’s witnesses. The District

Court heard the witnesses, and was the proper

judge of their credibility.’” Walling v. General

Industries Co., 330 U. 8. 548, 550, 67 S. Ct. 883,

91 L. Ed. 1088 (1947).

The present case presents special problems upon

review. The sole substantive issue on appeal deals

with the inherently subjective inquiry into the intent

of the Petitioners. The determination of good faith

or discriminatory intent solely from the transcript of

the proceedings must be considered with suspicion, at

best.

‘‘With the testimony still fresh in mind, the Dis-

trict Judge has stated his impressions of the cred-

ibility of the witnesses who appeared before him.

His judgment of the witnesses, given before the

passage of time had dimmed the memory of what

can never be adequately preserved by a steno-

graphic record, is thus entitled to great weight.”’

Mazzella Blasting Mat Co., v. Vitiella, 250 F. 2d

935, 935 (2nd Cir. 1957).

. . ee

See also: United States v. Oregon Medical Society,

343 U. 8. 326, 72 8. Ct. 690, 96 L. Ed. 778 (1951).

It must be remembered that the issue on appeal is

not whether Respondent was engaged in protected

speech. The issue is whether the Petitioners, in good

faith, believed it necessary to remove her sign from

the view of an increasingly hostile audience to insure

the protection of the President of the United States.

Such an inquiry must focus, to a great extent, upon

the testimony of the Petitioners.

The right of a defendant in an action arising out

ef 42 U.S.C. §1983 to establish good faith as a defense

is beyond question. Pierson v. Ray, supra. The ra-

tionale for such a defense antedates Pierson. Judge

Learned Hand stated that the purpose of such im-

munities (or quasi-immunities) is to encourage con-

scientious public officials by not ‘‘exposing such as

have been honestly mistaken to suit by anyone who

has suffered from their errors.’’ Gregoire v. Biddle,

177 F. 2d 579, 581 (2nd Cir. 1949). The Sixth Circuit

has recognized this principle as applied to police of-

ficers,

‘*No one has a constitutional right to be free from

a law officer’s honest misunderstanding of law or

facts in making arrest.’’ Gabbard v. Rose, 359 F.

2d 182, 185 (6th Cir. 1966) ; quoting Agnew v. City

of Compton, 239 F. 2d 226 (9th Cir. 1957).

A similar standard has been applied in cases involv-

ing First Amendment rights. Adamian vy. University

of Nevada, 359 F. Supp. 825 (1973) ; O’Brien v. Gallo-

way, 362 F. Supp. 901 (1973) ; Pocket Books, Iie. v.

Walsh, 204 F. Supp. 294 (1962). Handverger v. Har-

vill, 479 F. 2d 513 (9th Cir. 1973), is a $1983 case set

in a First Amendment context. The defendant uni-

versity officials were in a dilemma over whether to

stop a ‘‘commencement”’ by anti-war activists and pos-

sibly abridge the group’s constitutional rights or per-

mit the activity which they had been advised by counsel

was probably illegal. In holding that all the defend-

ants acted in good faith the Court emphasized the

uncertain nature of regulation of free speech. In

analyzing their right to suppress the free expression

of ideas the defendants had time to reflect in the quiet

of their offices; and they had the advice of their legal

counsel and two assistants from the Attorney General’s

office. How different the present case is! Here Pe-

titioners were in a disturbing situation, requiring an

immediate decision, involving a question of constitu-

tional dimensions upon which even learned judges

have disagreed, with the protection of the President

as their responsibility. Although dealing with a war-

rantless arrest, the words of Hill v. Rowland, 474 F.

2d 1374, 1378 (4th Cir. 1973), are meaningful:

‘* As stated in Whirl v. Kern, 407 F. 2d 781 at 790

(5 Cir. 1969), ‘An arrest is often a stressful and

unstable situation calling for discretion, speed,

and on-the-spot evaluation.’ To require the police

officer, under penalty of personal liability for

damages if he is in error, to make on-the-spot com-

plex and intricate legal determinations of the exist-

ence or absence of probable cause under the Fourth

and Fourteenth Amendments when the courts, act-

ing in a more leisurely and relaxed atmosphere,

have difficulty in making these decisions is to place

the policeman in just such a position of acting at

his peril as was declared to be intolerable in

Pierson v. Ray, supra, 386 U. 8. at 555, 87 8. Ct.

at 1218.”’

Police officers are given training in arrest proce-

dures, they are not given training in constitutional

questions of free expression. This fact makes the

Court of Appeals’ decision that the Petitioners acted

in bad faith gravely suspect, especially in view of the

fact that they never heard them testify. The basis

used for testing the actions of the Petitioners as to

the issue of a violation of free speech must be a rea-

sonable one under the circumstances and cannot be

viewed from the lofty height of hindsight or in the

detached atmosphere of judicial chambers. There is

no doubt that an unruly crowd could threaten the safety

of the President. This is underscored in importance

by the tragic assassinations in recent years. The pres-

- sure of a wrong decision in such a stressful situation

is evidence of good faith, in and of, itself. This Court

pointed out the stress of such a dilemma in Pierson,

supra:

‘*A policeman’s lot is no so unhappy that he must

choose between being charged with dereliction of

duty if he does not arrest when he has probable

cause, and being mulcted (sic) in damages if he

does.’”’ 386 U.S. at 555.

The most recent case discussing the good faith de-

fense to §1983 actions is Wood v. Strickland, 420 U. 8.

308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975), which dealt

with the liability of school board members for an

alleged denial of due process. It is Petitioner’s con-

tention that their actions were reasonable in light of

the demands of the situation. The District Court so

found. This finding is consistent with the rationale

for the good faith defense as expressed in Wood, supra:

‘‘The imposition of monetary costs for mistakes

which were not unreasonable in the light of all

the circumstances would undoubtedly deter even

the most conscientious school decisionmaker from

exercising his judgment independently, forcefully,

and in a manner best serving the long-term interest

of the school and the students. The most capable

candidates for school board positions might be

deterred from seeking office if heavy burdens upon

their private resources from monetary liability

were a likely prospect during their tenure

the immunity must be such that publie school of-

ficials understand that action taken in the good-

faith fulfillment of their responsibilities and

within the bounds of reason under all the cireum-

stances will not be punished and that they need

not exercise their discretion with undue timidity.”’

420 U.S., at 429.

The Court of Appeals quotes sections of this opin-

ion in support of the proposition that the determina-

tion of good faith in a §1983 context requires a ‘‘knowl-

edge of basic, unquestioned constitutional rights,”

While Petitioners readily admit it is not unreasonable

to expect police officers to be aware of basic constitu-

tional rights, this is an oversimplification which sheds

little light upon the case at bar. First, this incident

took place in the ‘‘urgency of a street confrontation’’

and not in the ‘‘contemplative atmosphere’’ of a school

board meeting with ready access to legal counsel to

explain matters of constitutional rights. Secondly, the

interrelationship of street demonstrations involving

the President of the United States and First Amend-

ment freedoms can hardly be described as a ‘“‘basic,

unquestioned constitutional right.”’

In a recent decision reflecting on this question the

Fifth Cireuit in Sapp v. Renfroe, 511 F. 2d 172 (5th

Cir. 1975) applied the Wood, supra, standard to a ques-

tion dealing with First Amendment freedoms. The

Court held that a student’s freedom from attending

ROTC was not a clearly established constitutional

right. Certainly, if a school board is given such leeway

in determining such constitutional questions, a police

officer acting in a turbulent situation deserves that

much more. The question facing the officers in the

present case cannot be said to have been more ‘‘basic’’

than that facing the school board in Sapp, supra.

Finally, turning to the holding of the Court of Ap-

peals that the Petitioners acted with an invidious dis-

criminatory intent, we are bound by the same consid-

erations as mentioned above regarding the questions

of reasonableness and good faith. |

_ The principle case dealing with claims under 42

U.S.C. §1985(3) is Griffin v. Breckinridge, 403 U. S.

88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). This Court

delineated the requisites of the cause of action:

‘‘The language requiring intent to deprive of equal

protection, or equal privileges and immunities,

means that there must be some racial, or perhaps

otherwise class-based, invidiously discriminatory

animus behind the conspirators’ action.’’ 403

U. S., at 102.

Judge Gordon in his opinion in the District Court

held that ‘‘we find no evidence of ‘class-based invidi-

ously discriminatory animus’ as required in Griffin,

supra.’’ The Court of Appeals reversed, holding that

the actions of the police in confiscating and destroying

the placard were indeed motivated by invidiously dis-

criminatory animus and therefore the petitioners were

in violation of §1985(3).

Again, the findings of the trio-l court were not

clearly erroneous. Fed. R. Civ. P. 52(a). The trial

transcript is replete with testimony, the gist of which is

that the officers acted only to prevent the proliferation

of violence immediately preceding the passing of the

Presidential motoreade, and that the officers took and

destroyed the placard ONLY AFTER the officers

perceived a dangerous situation developing.

On Page 66 of the trial transcript Officer Medley

was asked:

“Q. . . . CW)hy did you think it was so im-

perative that you had to take that sign away from

her?

A. My job was to—protecting the President and

to keep the crowd at ease and the crowd was

becoming unruly and I had to get that sign down

or the crowd would have become boisterous and

maybe hurt the young lady.’’

Medley’s superior officer, Sgt. Johnson, responding

to a query regarding the orders given relating to ‘‘signs

carried by persons’’ declared:

‘“*A. They said if signs were of the nature that

created disturbances, uh, that to be interested in

the President’s welfare . . . (and) ask them to

remove the signs’’ (T. 74).

The signs that were not to be permitted, Johnson

continued, were signs that would ‘‘cause unreasonable

reaction of a crowd . . . signs that would cause

unreasonable trouble and disorder.’’ (T. 75).

The Court of Appeals erred in stating that ‘‘the

record is unmistakably clear that (petitioners) in-

tended to permit no criticism of the president that

day.’’ When asked whether he would have included

signs which were merely ‘‘against’’ the President as

examples of the category of ‘‘detrimental’’ signs, Sgt.

Johnson replied negatively (T. 75) that he would be

concerned exclusively with signs that could ‘‘cause

danger to the President or anyone else present”’ (T.

76). Further, Chief of Police Hyde in responding to

the question whether any special instructions were

given the officers concerning signs, answered:

“A. . . . the people who carried signs peaceably

without causing trouble or inciting people or pro-

voking people, but as long as they were peaceable;

the signs didn’t have any profanity or obscenity in

them that there would be no—uh, there would be

no reason to take any action against those people.”’

(T. 98).

From the above, it is clear that the finding of the

District Court that the Petitioners lacked any invidi-

ously discriminatory animus was supported by sub-

stantial evidence. We respectfully submit the Court of

Appeals is in error.

CONCLUSION

It is respectfully submitted that this Court should

grant certiorari to review the erroneous judgment of

the Court of Appeals below.

Respectfully submitted,

Burt J. DEutTscH

Director of Law

Martin R. GLENN

Assistant Director of Law

Carson P. PorTER

Assistant Director of Law

Department of Law

200 City Hall

Louisville, Kentueky 40202

Attorneys for Petitioners

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

No. 6999

Margorre GuassonN - - - - - - ~~ Plaintiff

Orry or Loursvittz, Frank W. Burke, Grorce

Burton, Cou. C. J. Hype, Lr. Eimer Jonn-

son, and ParroLMaN WaLter Meptey - Defendants

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Upon joint motion of the parties and their respective

counsel, the above entitled action came on for trial before

‘the Court, Honorable James F. Gordon, United States Dis-

trict Judge, presiding, without a jury, the plaintiff appear-

ing in person and by her attorneys, Philip L. Grauman and

Thomas L. Hogan; and the defendants appearing in person

and by their attorneys, Frank A. Logan and Herbert Van

Arsdale, and testimony having been offered and arguments

of counsel made, and the Court having been duly advised,

now makes and files its findings of fact and conclusions of

law.

FINDINGS OF FACT

The defendant, Frank W. Burke, was Mayor of the City

of Louisville; George Burton was the Director of Safety;

and the defendants Colonel C. J. Hyde, Lt. Elmer Johnson

(then Sergeant) and Patrolman Walter Medley were mem-

bers of the Police Force of the City of Louisville at the

time the acts were alleged to have occurred in the complaint.

Though there is, of course, considerable conflict in the

evidence, we find that on the occasion of President Nixon’s

visit to the City of Louisville, Kentucky, on July 14, 1970,

the plaintiff, Marjorie Glasson, a white woman, was stand-

ing at Fourth and Guthrie Streets with a placard bearing a

message prepared by her, to be read by President Nixon as

he passed in his motorcade on that date and occasion.

The plaintiff testified that the message contained on the

sign was “Lead us to hate and kill poverty, disease and

ignorance, not each other.” The defendants, Sgt. Johnson

and Patrolman Medley, testified that the message contained

the word “murderer” at the top of the sign in larger and

bolder letters.

The defendants, Sgt. Johnson and Patrolman Medley,

were assigned to duty to secure the safety and protection

of the President. Their area of patrol covered Fourth

Street at Guthrie. It was their duty to observe the people,

to be alert for any activity within the crowd which would

create a disturbance or cause confusion or such conduct

that could interfere with the progress of the motorcade,

which could jeopardize the safety of the President, or other-

wise be hazardous to others in the crowd composed of

onlookers.

As President Nixon’s motorcade approached the area

adjacent to the point at which the plaintiff was standing,

Fourth and Guthrie Streets, Patrolman Medley noticed a

commotion in the crowd across the street and persons

pointing and calling across the street directing attention to

the sign being held by the plaintiff, Marjorie Glasson.

Patrolman Medley, after reading the sign, crossed the

street and after a discussion with Sgt. Johnson concerning

the contents of the message, it was determined by them

that the message was inflamatory and it was creating rancor

- - ee ee ee

SS ES Sa

and resentment in the crowd which could impede the

progress of the motorcade and jeopardize the safety of the

President, other members of the motorcade and the on-

lookers in the crowd.

Sgt. Johnson directed Patrolman Medley to go to the

plaintiff and ask her to take the sign down, and, if she

would not voluntarily do so, he was to take it from her

which would eliminate the hazard. Patrolman Medley

approached the plaintiff and asked her to take the sign

down and, upon her refusal to do so, he took it from her

and destroyed it.

CONCLUSIONS OF LAW

The Court has jurisdiction of the parties and the sub-

ject matter of this action; i.e., 42 U.S.C. 1983 and 1985.

As to the 42 U.S.C. 1983 claim, the defendants Johnson

and Medley acted in good faith and upon reasonable

grounds, and their decision and action in removing the sign

from the plaintiff and destroying it were within the ambit

of permissible discretion as it appeared at the time. Pierson

v. Ray, 386 U.S. 547; Notaras v. Ramon, 383 F. 2d 403.

As to the 42 U.S.C. 1985 claim, we find no evidence of

“class based invidious discriminatory animus” as required

to be an element in Griffin v. Breckenridge, 403 U.S. 88.

The plaintiff shall take nothing by the complaint, and

the defendants shall have judgment for their costs and dis-

bursements herein expended, and judgment shall be entered

accordingly.

March 28, 1973

(s) James F. Gordon

United States District Judge

Copies to:

Counsel of record.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 73-1509

Margorre Guasson - - - ~- _ Plaintiff-Appellant

City or Louisvitiz, Frank W. Burke, Grorce

Burton, Cot. C. J. Hype, Lr. Eimer Jonn-

son, ParroLMAN Water Mep ey - Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

LOUISVILLE, DIVISION

Decided and Filed June 13, 1975.

Before: Puuturps, Chief Judge, McCrex, Circuit Judge,

and McAuuster, Senior Circuit Judge.

McCrez, Cireuit Judge. On July 14, 1970, in Louisville,

Kentucky, a police officer forcibly took a poster from a

young woman peacefully standing on a public sidewalk and

destroyed it. Although not every encounter between a

citizen and a policeman warrants extended judicial scrutiny

and review, the implications of this apparently incon-

sequential incident raise important questions about the con-

stitutional guaranty of freedom of expression, and require

us to determine the circumstances in which police officers

may be required to respond in damages in an action brought

under the Civil Rights Acts, 42 U.S.C. $4 1983, 1985(3), for

abridgement of rights guaranteed by the First and Four-

teenth Amendments.’

The district court, sitting without a jury, determined,

after trial, that appellant could not recover damages under

section 1983 because the police had acted reasonably in

destroying her poster and that she could not recover dam-

ages under section 1985(3) because she had failed to prove

that the destruction of her poster was motivated by an im-

pe. wissible discriminatory animus. We reverse.

On July 14, 1970, the former President of the United

States, Richard M. Nixon, was scheduled to ride in a motor-

cade in Louisville, Kentucky, before attending the Ap-

palachian Governors’ Conference. In anticipation of this

procession, appellant Glasson, a young Caucasian woman,

had prepared to display to the President a poster on which

she had printed, “Lead us to hate and kill poverty, disease

and ignorance, not each other.” By displaying this poster,

ske hoped to express to the President and to asyone else

who might read it, her concern about the divisive issues of

American racism and the Vietnam War, and her wish that

the President would channel the energies of his adminis-

tration to heal the divisions created by these issues, and to

eliminate poverty, disease, and ignorance. These problems

were on the agenda of the Governors’ Conference.

Early that morning, Louisville police officers to whom

had been assigned the duty of safeguarding the President

during the motorcade by monitoring the crowd and keeping

it orderly, were given their general orders of the day by

Lt. Colonel Edgar Mulligan, Assistant Chief of Police of

1In the brief that appellant submitted to this court she con-

ceded that she had no claim against the City of Louisville and

stated that she did not wish to pursue her claims against Frank W.

Burke and George Burton.

Louisville. Appellee Colonel Hyde, the Chief of Police, was

also present. Appellees Johnson and Medley, police officers

with approximately 25 years of experience, attended the

meeting and were instructed to destroy any sign or poster

that was “detrimental” or “injurious” to the President of

the United States.

Both Johnson and Medley had previously received in-

struction in crowd control methods and in handling demon-

strations and protests against important public officials.

According to Chief of Police Hyde, “we always planned in

generalities to use whatever force was necessary [to pre-

serve peace] and have faith in the people . . . assigned

out there to exercise their best judgment based upon their

training . . . that [they] heretofore had had regarding

crowd control.” Individuals were to be permitted to demon-

strate peacefully “[a]s long as they didn’t incite others that

might cause trouble . . . .” Should other persons be

incited or provoked by a sign, police officers were directed

to take whatever action was necessary, including the use of

force to maintain or restore order.

It is undisputed that on the day in question, appellant

Glasson was standing peacefully against a building holding

her sign as she awaited the motorcade. Several other per-

sons were also displaying signs and posters, all of which

bore salutations like “Welcome to the President.” Accord-

ing to Johnson and Medley, a group of persons located

across the street from Glasson noticed her poster and were

provoked by it into grumbling and muttering threats. Officer

Medley testified that this group was “hollering” and that

his attention was drawn by this boisterous conduct to ap-

pellant’s poster on which, he testified, was printed in large

letters “Murderer, teach us to hate and kill” and then in

smaller letters “Poverty, ignorance and so forth”, a message

that he determined was detrimental to the President.? He

2The district court made no finding that the poster contained

the epithet, ‘‘Murderer,’’ even though Officers Medley and Johnson

testified that it did and Miss Glasson testified that it did not.

33.

then conferred with Officer Johnson and inforimed him that

the poster was “pretty bad because the crowd across the

street is going to go over and get her—maybe hurt her.”

Officer Johnson agreed that the poster was detrimental to

the President and directed Medley to follow the general

orders given that day—to destroy all signs detrimental to

the President. Officer Medley then approached appellant

and, according to his testimony, asked her “Would you

please take this sign down Lady; it’s detrimental to the

United States of America.” When Miss Glasson refused,

and replied that she had a right to display it, Medley took

it from her and tore it up. The hecklers across the street

cheered and then immediately quieted down and began to

disperse.

At trial, Johnson and Medley testified that the boisterous

group that had spurred them into action consisted of

twenty-five to thirty persons and that there were approxi-

mately seven to twelve police officers stationed on the block

where the demonstrators stood. When asked whether the

police force at hand was sufficient to handle a possible dis-

order in a crowd that size, Officer Johnson responded that

the answer depended upon the number of people who be-

came involved, but that “if it got so bad that we had to have

reinforcements we could have done that also.” Moreover,

even though Johnson testified that the disturbance “was

reaching the stage of a riot,” the record shows that not one

heckler crossed, or even attempted to cross the street, no

reinforcements were ever summoned, and the secret service,

the federal agency assigned the duty of safeguarding the

President, 18 U.S.C. § 3056, was not alerted. Neither officer

told the crowd to quiet down or attempted to calm its mem-

bers except to assure them that the police would take care

of appellant’s poster. When Officer Medley was asked what

he would have done had members of the boisterous group

begun to cross the street, he replied, and Johnson agreed,

that no crime would have been committed had they crossed

the street and taken appellant’s poster because it was “in-

flammatory anyway.” <A permissible sign, according to

Medley, was “[a]ny sign welcoming the President,” and, he

observed, that he saw “no other signs with . . . de-

rogatory remarks about the President . . . .” When

Johnson was asked, “If there were a group of school chil-

dren holding a sign saying Welcome, President Nixon, and

twenty-five or thirty people across the street were booing

them and saying that they didn’t like President Nixon and

they were going over to get that sign, would you take that

sign away from those school children, he replied, “No.” He

qualified this answer later in his testimony when he stated

that he would not have taken it unless “trouble engulfed or

started or was created.”

Appellant and a law professor who was standing across

the street from her near the crowd, both testified that they

heard no boisterous heckling but that, on the contrary,

because the motorcade had been delayed, the crowd had

become subdued and bored at the time Medley grabbed the

poster. They also testified that the reaction of the crowd to

the police officer’s action against appellant was mixed—

some persons applauded and cheered while other persons

booed and hissed.

Miss Glasson testified that this was the first time that

she had ever engaged in a political demonstration; that she

was shocked and frightened by Officer Medley’s conduct ; and

that since that time she has been fearful of participating in

any other demonstrations.

As a result of this encounter, she filed this action in the

United States District Court for the Western District of

Kentucky under sections 1983 and 1985(3) of the Civil

Rights Acts, 42 U.S.C. §§ 1983, 1985(3). Her complaint

charged that Officers Johnson and Medley, acting under

color of law, deprived her of rights guaranteed by the First

and Fourteenth Amendments to the United States Con-

stitution, and that they, acting with appellee Hyde, con-

spired to deprive her of the equal protection of the laws

and of equal privileges and immunities under the laws of

the United States. She requested compensatory and puni-

tive damages.

The district court, after trial without a jury, made the

following findings of fact: (1) that before the President’s

motorcade had arrived, a group of persons became angered

by the message on appellant’s poster and began “pointing

and calling across the street . . .”; (2) that Officers

Johnson and Medley determined “that the message was in-

flammatory and [that] it was creating rancor and resent-

ment in the crowd which could impede the progress of the

motorcade and jeopardize the safety of the President, other

members of the motorcade and the onlookers in the crowd ;”

and (3) that Officer Medley asked appellant to take her

poster down and then took it away from her and destroyed

it when she refused to comply with his request. The dis-

trict court determined, as a matter of law, that Officers

Medley and Johnson had not violated section 1983 of the

Civil Rights Acts because they “acted in good faith and

upon reasonable grounds, and their decision and action in

removing the sign from the plaintiff and destroying it were

within the ambit of permissible discretion as it appeared at

the time,” citing Pierson v. Ray, 386 U. S. 547 (1967), and.

Notaras v. Ramon, 383 F. 2d 403 (9th Cir. 1967). It also

concluded, citing Griffin v. Breckenridge, 403 U. S. 88

(1971), that none of the three appellees had violated section

1985(3) of the Civil Rights Act because there was “no evi-

dence” that their action was motivated by a “ ‘class-based

invidious discriminatory animus.’ ”

On appeal it is contended that the district court erred in

holding that the officers acted reasonably and in good faith

in seizing and destroying appellant’s poster, and in deter-

mining that there was no evidence of an impermissible in-

vidious discriminatory animus. We agree and reverse. Al-

though generally findings of fact by a trial court must be

accepted by an appellate court unless they are clearly

erroneous, F.R. Civ. P. 52(b), determinations, whether

called ultimate findings or conclusions of law, that attach

legal significance to historical facts may be reversed if upon

examination of the record they are found to be erroneous.

E.q., United States v. Weingarden, 473 F. 2d 454, 460 (6th

Cir. 1973), Guzick v. Drebus, 431 F. 2d 594, 599 (6th Cir.

1970), cert. denied, 401 U. S. 948 (1971), Ashland Ou €&

Refining Co. v. Kenny Construction Co., 395 F. 2d 683, 684

(6th Cir. 1968), Cordovan Associates, Inc. v. Dayton Rubber

Co., 290 F. 2d 858, 859 (6th Cir. 1961). See Edwards v.

South Carolina, 372 U. S. 229, 235 (1963). We hold that

when Officer Medley destroyed Miss Glasson’s poster, she

was engaged in activity protected by the First and Four-

teenth Amendments; that his action, directed by Officer

Johnson and authorized by Chief of Police Hyde, was un-

reasonable and not taken in good faith; and that it violated

her constitutional rights and was actionable under section

1983 of the Civil Rights Acts. Moreover, since appellees

agreed to destroy all placards that were critical of the

President and offensive to the community, the destruction

of the poster was pursuant to an impermissibly invidious

discrimination remediable under section 1985(3) of the Civil

Rights Acts.

No state may agreeably to the Constitution intercept a

message and remove it from the channels of communica-

tion or punish its dissemination solely because of its content

unless it is obscene, e.g., Miller v. California, 413 U.S. 15

(1973), Roth v. United States, 354 U.S. 476 (1957), defama-

tory, e.g., New York Times v. Sullivan, 376 U.S. 254 (1964),

constitutes “fighting words,” e.g., Lewis v. City of New

Orleans, 415 U.S. 130 (1974), Chaplinsky v. New Hampshire,

315 U.S. 568 (1942), or substantially and directly imperils

national security, see New York Times Co. v. United States,

403 U.S. 713 (1971). Moreover, the Constituttion protects

not only the substance of an expression but also the use of

words selected for their emotive quality even though they

may offend the tastes of the community. £.g., Papish v.

Board of Curators of the University of Missouri, 410 U.S.

667 (1973), Cohen v. California, 403 U.S. 15 (1971), Thonen

v. Jenkins, 491 F’. 2d 722 (4th Cir. 1973). Inherent in sup-

pressing the use of particular words is the grave risk of

inhibiting the expression of ideas, particularly unpopular

ones.

The message that Miss Glasson sought to communicate

was an expression of her views about important public

questions and policies. This kind of expression is entitled

to the greatest constitutional protection. As the Supreme

Court stated in New York Times Co. v. Sullivan, supra, at

269 :

The general proposition that freedom of expression

upon public questions is secured by the First Amend-

ment has long been settled by our decisions. The con-

stitutional safeguard, we have said, “was fashioned to

assure unfettered interchange of ideas for the bringing

about of political and social changes desired by the

people.”

Accordingly, even if the appellation “Murderer” appeared

on Miss Glasson’s placard, and her message was expressly

critical of the Nixon administration, it was constitutionally

protected. The right of an American citizen to criticize

public officials and policies and to advocate peacefully ideas

for change is “the central meaning of the First Amend-

ment.” Id. at 273. See generally, A. Meiklejohn, Political

Freedom: The Constitutional Powers of the People (1948),

Kalven, The New York Times Case: A Note on “The Cen-

tral Meaning of the First Amendment,” 1964 Sup. Ct. Rev.

191.

Although the content of a communication may be pro-

tected, the state may, in some circumstances, regulate the

time, place and manner of expressing it. See, e.g., Grayned

v. City of Rockford, 408 U.S. 104, 115-17 (1972). For ex-

ample, it may determine not to permit two parades to pro-

ceed along the same street at the same time, or two rallies

to be held simultaneously in the same part of a public park.

Moreover, the state may in appropriate circumstances pro-

hibit rallies in jail yards, Adderley v. Florida, 385 U.S. 39

(1966), in public libraries, see Brown v. Louisiana, 383 U.S.

131 (1966), and near courthouses, Cox v. Louisiana, 379 U.S.

559 (1965). See generally, Kalven, The Concept of the

Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1. Yet,

at the same time, our public streets and parks

have immemorially been held in trust for the use of the

public and, time out of mind, have been used for pur-

poses of assembly, communicating thoughts between

citizens, and discussing public questions. Such use of

the streets and public places has, from ancient times,

been a part of the privileges, immunities, rights, and

liberties of citizens. The privilege of a citizen of the

United States to use the streets and parks for commun-

ication of views on national questions may be regulated

in the interest of all; it is not absolute, but relative, and

must be exercised in subordination to the general com-

fort and convenience, and in consonance with peace and

good order; but it must not, in the guise of regulation,

be abridged or denied.

Hague v. CIO, 309 U.S. 496, 515-16 (1939).

In this case, Miss Glasson was in a place where she had

a right to be, at a time that was appropriate, and was con-

cert A man

Me RO Fre re OR ar ree «

ducting herself peacefully and lawfully. She, like many

other persons, had taken the opportunity to express her

ideas to the President—from a place designated by the state

for onlookers and in a manner often used by persons who

do not have access to the print or broadcast media.

Moreover, we do not believe that Miss Glasson somehow

forfeited the protection afforded her message by the Consti-

tution becaues it unintentionally evoked a hostile reaction

from others. We reach this conclusion after considering

this case “against the background of a profound national

commitment to the principle that debate on public issues

should be uninhibited, robust, and wide-open, and that it

may well include vehement, caustic, and sometimes unpleas-

antly sharp attacks on government and public officials.”

New York Times Co. v. Sullivan, supra, at 270. The pur-

pose of the First Amendment is to encourage discussion,

and it is intended to pretect the expression of unpopular as

well as popular ideas. Accordingly, hostile public reaction

does not cause the forfeiture of the constitutional protection

afforded a speaker’s message so long as the speaker does

not go beyond mere persuasion and advocacy of ideas and

attempts to incite to riot. See, e.g., Gooding v. Wilson, 405

U.S. 518 (1972) ; Brandenburg v. Ohio, 395 U.S. 444 ( 1969) ;

Ashton v. Kentucky. 384 U. S. 195 (1966) ; Edwards v. South

Carolina, supra; Feiner v. New York, 340 US. 315, 321

(1951).*

’Feiner used a loudspeaker to address an interracial crowd of

seventy-five to eighty persons and urged them to attend a meeting

to discuss racial discrimination. During the course of his exhorta-

tion, he made derogatory remarks about President Truman, the

Marshall Plan, and local officials, and urged the Negroes in the

crowd to ‘‘rise up in arms’’ against white people and ‘‘fight for

equal rights.’’ The crowd blocked sidewalks, forcing pedestrians to

walk in the street, and became angry and threatened to attack

Feiner if the police failed to act. The police requested Feiner to

stop speaking three times before arresting him for disorderly con-

(Footnote continued on following page)

To permit police officers to prohibit the expression of

ideas which they believe to be “detrimental” or “injurious”

to the President of the United States or to punish for incite-

ment or breach of the peace the peaceful communication of

such messages because other prsons ar provoked and seek

to take violent action against the speaker would subvert the

First Amendment, and would incorporate into that constitu-

tional guarantee a “heckler’s veto”* which would empower

an audience to cut off the expression of a speaker with whom

it disagreed. The state may not rely on community hostility

and threats of violence to justify censorship.

The record before us demonstrates that Miss Glasson, in

displaying her placard which contained a constitutionally

protected message, in a peaceful manner, from an appro-

priate place, was engaged in activity protected by the First

Amendment and that its destruction by Louisville police

officers Johnson and Medley deprived her of that right.

She thus made out a prima facie case for damages under

section 1983. This section of the Civil Rights Act provides,

in relevant part:

Every person who, under color of any statute, regula-

tion, custom or usage of any State . . . subjects, or

causes to be subjected, any citizen of the United States

to the deprivation of any rights, privileges, or

duct. In upholding the conviction, the Supreme Court determined

that the police ‘‘in making the arrest were motivated solely by a

proper concern for the preservation of order and protection of the

general welfare, and that there was no evidence which could lend

color to a claim that the acts of the police were a cover for sup-

pression of petitioner’s views and opinions.’’ Id. at 319.

For over twenty years the Supreme Court has confined the rule

in Feiner to a situation where the speaker in urging his opinion

upon an audience intends to incite it to take action that the state

has a right to prevent.

4For a discussion of the concept of a ‘‘heckler’s veto’’, see

generally, H. Kalven, The Negro and the First Amendment, 140-60

(1966).

immunities secured by the Constitution and the laws

shall be liatve to the party injured in an action at law,

suit in eowity, or other proper proceeding for redress.

This statute imposes on the states and their agents cer-

tain obligations and responsibilities. A police officer has

the duty not to ratify and effectuate a heckler’s veto nor

may he join a moiling mob intent on suppressing ideas. In-

stead, he must take reasonable action to protect from vio-

lence persons exercising their constitutional rights. £.g.,

Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947), Cotton-

reader v. Johnson, 252 F'. Supp. 492 (M.D. Ala. 1966). And,

in the abserve of a speaker’s exhortation to violence in care-

fully defined circumstances, “state officials are not entitled

to rely on community hostility as an excuse not to protect,

by inaction or affirmative conduct, the exercise of funda-

mental rights.” Smith v. Ross, 482 F. 2d 33, 37 (6th Cir.

1973). Accord, e.g., Gregory v. Chicago, 394 U.S. 111, 119

(1969) (Black, J. concurring) and cases cited therein.

5In Terminiello v. Chicago, 337 U. S. 1 (1949), for example, a

speaker, whose ideas had caused a violent reaction from some mem-

bers of his audience, was convicted of violating an ordinance that

prohibited any activity that ‘‘ ‘stirs the public to anger, invites

dispute, brings about a condition of unrest, or creates a disturbance,

or if it molests the inhabitants in the enjoyment of peace and quiet

by arousing alarm.’’’ Id. at 3. In reversing the conviction, the

Court observed that ‘‘. . . a function of free speech under our

system of government is to invite dispute. It may indeed serve its

highest purpose when it induces a condition of unrest, creates dis-

satisfaction with conditions as they are, or even stirs people to

anger.” Jd. at 4.

In view of this high purpose of the First Amendment, the

Supreme Court has become increasingly reluctant to affirm convic-

tions of speakers for disorderly conduct or breach of the peace

when their expression of ideas protected by the First Amendment

has unintentionally provoked reaction from a hostile crowd. £.g.,

Street v. New York, 394 U. 8S. 576 (1969); Gregory v. Chicago,

supra; Cox v. New Hampshire, 379 U. 8. 536, 559 (1965) ; Edwards

vy. South Carolina, supra; Niemotko v. Maryland, 340 U. S. 268,

(Footnote continued on following page.)

The duty of police officers to protect persons exercising

the constitutional right of expression is illustrated by the

case of Cottonreader v. Johnson, supra. In that case, the

court, on behalf of demonstrators for racial equality, issued

an injunction that ordered police officers to protect them

from violent actions threatened by persons opposed to their

cause. In explaining the basis for its order, the court ob-

served that the police officers had stood by idly while hos-

tile whites attacked the demonstrators and that they had

engaged in acts of brutality themselves. It determined that

the police officers had failed o discharge the duties the law

imposed on them by “failing to maintain and keep order,

generally, when these marches and protests were taking

place,” and it rejected “the claim that they did not have an

adequate police force to cope with such situations” when

this claim was “made without any effort on the part of the

273-89 (1951) (Frankfurter, J. conc.) ; Cantwell v. Connecticut,

310 U. S. 296 (1940).

In Street, the Supreme Court, in reversing a conviction for

burning an American flag and for publicly speaking contemptuous

words about it, stated :

Nor could such a conviction be justified on the second

ground mentioned above: the possible tendency of appellant’s

words to provoke violent retaliation. Though it is conceivable

that some listeners might have been moved to retaliate upon

hearing appellant’s disrespectful words, we cannot say that

appellant’s remarks were so inherently inflammatory as to come

within that small class of ‘‘fighting words’’ which are ‘‘likely

to provoke the average person to retaliation, and thereby cause

a breach of the peace.’’ Chaplinsky v. New Hampshire, 315

U. S. 568, 574 (1942). . .

Again, such a conviction could not be sustained on the

ground that appellant’s words were likely to shock passers-by.

Except perhaps for appellant’s incidental use of the word

‘‘damn,’’ upon which no emphasis was placed at trial, any

shock effect of appellant’s speech must be attributed to the

content of the ideas expressed. It is firmly settled that under

our Constitution the public expression of ideas may not be

prohibited merely because the ideas are themselves offensive

to some of their hearers. [Citations omitted].

394 U. 8. at 592.

defendants to seek and obtain assistance from other author-

ities.” 252 F. Supp. at 496. The court concluded that

{u]nder such circumstances suppression by public of-

ficials or police of the rights of free speech and assem-

bly cannot be made an easy substitute for the perform-

ance of their duty to maintain order by taking such

steps as may be reasonably necessary and feasible to

protect peaceable, orderly speakers, marchers or dem-

onstrators in the exercise of their rights against violent

or disorderly retaliation or attack at the hands of those

who may disagree and object.

Id. at 497.

If this were a case requiring us to review a criminal con-

viction of Miss Glasson for displaying her sign or to review

the denial of an injunction prohibiting appellees from en-

gaging in activity like that challenged here (assuming that

the other prerequisites for injunctive relief were satisfied),

our inquiry would be ended. See, e.g., Gregory v. Chicago,

supra. In this appeal, however, we review not a criminal

conviction nor a denial of injunctive relief, but a civil action

for damages based upon state deprivation of constitutional

rights by means short of an arrest.

In determining the circumstances under which a police

officer-must respond in damages for the tortious interfer-

ence with a person’s right to express ideas, we do not write

upon a blank slate. In Pierson v. Ray, 386 U.S. 547 (1967),

the Supreme Court announced that reasonableness and good

faith was an affirmative defense to an action brought under

42 U.S.C. § 1983. The Court recognized that police officers

acting in good faith should be accorded an area of discretion

when their actions are the subject of a suit for damages for

unlawful or wrongful conduct ostensibly within the scope

of their duties. And, when a police officer is accused of false

arrest, “good faith and probable cause” affords a defense

to a section 1983 action brought against him. Id. at 557.

See also Scheuer v. Rhodes, 416 U.S. 232 (1974).

This affirmative defense was recently reconsidered by

the Supreme Court in Wood v. Strickland, 43 U.S.L.W. 4293

(February 25, 1975), an action brought by high school stu-

dents who claimed that they had been suspended from school

in violation of their constitutional rights and sought appro-

priate damages. In its discussion of the affrmative defense

available to the school board members who had ordered the

suspension, the Court stated:

The official must himself be acting sincerely and with a

belief that he is doing right, but an act violating a stu-

dent’s constitutional rights can be no more justified by

ignorance or disregard of settled, indisputable law on

the part of one entrusted with supervision of students’

daily lives than by the presence of actual malice. To

be entitled to a special exemption from the categorical

remedial language of § 1983 in a case in which his action

violated a student’s constitutional rights, a school board

member, who has voluntarily undertaken the task of

supervising the operation of the school and the activi-

ties of the students, must be held to a standard of con-

duct based not only on permissible intentions, but also

on knowledge of the basic, unquestioned constitutional

rights of his charges. Such a standard neither imposes

an unfair burden upon a person assuming a responsible

public office requiring a high degree of intelligence and

judgment for the proper fulfillment of its duties, nor

an unwarranted burden in light of the value which civil

rights have in our legal system. Any lesser standard

would deny much of the promise of § 1983. Therefore,

in the specific context of school discipline, we hold that

a school board member is not immune from liability for

damages under 4 1983 if he knew or reasonably should

have known that the action he took within his sphere of

official responsibility would violate the constitutional

rights of the student affected, or if he took the action

with the malicious intention to cause a*deprivation of

constitutional rights or other injury to the student.

(Emphasis supplied.)

Id. at 4298.

Although only Pierson specifically concerns the liability

of police officers for invasion of constitutional rights, both

Scheuer v. Rhodes and Wood v. Strickland are helpful in

determining the conditions under which an affirmative de-

fense of reasonableness and good faith has been established.

From an examination of all three cases, we conclude that

the factors to be considered in determining whether the

defense has been established are whether the police officers

knew or should have known that the complainant was en-

gaged in the exercise of constitutionally protected activity,

and if they knew (or should have known), whether they

acted out of an honest and reasonable belief that their inter-

ference with the exercise of those rights was required to

avoid imminent and serious injury to persons or property.

Every asserted justification must be considered carefully

on a case by case basis, and due regard must be given to the

fact that the officers may be act‘ug in the urgency of a street

confrontation and not in the contemplative atmosphere of

judicial chambers.

These factors, in one form or another, have been con-

sidered by federal courts for a number of years in cases in

which police officers who suppressed the peaceful expres-

sion of ideas have been asked to respond in damages to the

speaker. In Downie v. Powers, 193 F. 2d 760 (10th Cir.

1951), a group of Jehovah’s Witnesses were attacked by a

mob, and police officers, although aware of threats of vio-

lence, did nothing to prevent the formation of the mob or

to restore order after violence broke out. In holding that

because of a procedural error the members of this sect were

entitled to a new trial of their action against the officers

for damages brought under section 1983, the court stated :

One charged with the duty of keeping the peace cannot

be an innocent bystander where the constitutionally

protected rights of persons are being invaded. He must

stand on the side of law and order or be counted among

the mob. [Citations omitted]. But the officials are

the keepers, not the insurers of the peace in the com-

munity. Diligent and conscientious effort is all that

is required. Otherwise, officers would be civilly and

criminally liable under Federal law for every breach

of a constitutionally protected right of a citizen—a

result which the framers of the Civil Rights Act never

intended.

Id. at 764.

Other courts have recognized a defense of reasonable-

ness and good faith to actions brought for damages under

section 1983 even when the justification asserted for the

challenged police behavior was security of the President.

F..g., Scherer v. Brennan, 379 F. 2d 609 (7th Cir.), cert.

denied, 389 U.S. 1021 (1967); Butler v. United States, 365

F. Supp. 1035 (D. Haw. 1973); Sparrow v. Goodman, 361

F. Supp. 566 (W.D.N.C. 1973), aff'd sub nom. Rowley v.

McMillan, 502 F. 2d 1326 (4th Cir. 1974). In Scherer the

court affirmed a determination that Secret Service agents

were not required to respond in damages for trespass and

for interfering with a plaintiff’s use of his home, when the

home in which he kept military rifles, rounds of ammuni-

tion, and cannon capable of penetrating a concrete wall was

located within three hundred yards of an inn where the

President was staying. Although this case was decided be-

fore the Supreme Court decision in Pierson, the court took

into account the fact that plaintiff had previously been ar-

rested for illegal possession of a dangerous weapon, a can-

non, and that the agents’ action was reasonably related to

their statutory duty of protecting the President. The facts

of that case are, of course, a far cry from those before us

in which there is no suggestion that Miss Glasson herself

posed any threat to the safety of the President.

In Butler, supra, the court refused to grant defendants’

motion to dismiss or for summary judgment in an action

for damages brought under section 1983 against military

security personnel. Plaintiffs had been excluded from a

public reception for the President, and were detained for

fingerprinting, photographing and other purposes because

they wished to express peacefully their opposition to the

President's policies and to his reelection. In ordering the

case to be tried, the court observed, and we agree, that

“(w]here the occasion for exercising First Amendment

rights has passed, a private action for damages affords the

only practicable means of redressing the wrong alleged.”

Id. at 1040. “But,” the court stated, “a law enforcement

officer may allege and prove in defense his subjective good

faith belief that his conduct was lawful and the objective

reasonableness of this belief under the circumstances.” Jd.

at 1045.

Finally, in Sparrow v. Goodman, supra, plaintiffs, who

were excluded from a public gathering at which the Presi-

dent appeared, brought an action for injunctive relief and

for damages for false arrest and assault under section 1983.

The court ordered the case for damages to be set for trial

and observed that the evidence adduced at the hearing in

connection with the issuance of an injunction indicated that

plaintiffs had been excluded solely because they had op-

posed, or because their appearance had suggested that they

opposed, the President. The court determined that the rea-

son for exclusiou was plaintiffs’ political beliefs, and that

there was no evidence to suggest that plaintiffs presented

a threat to the President’s safety. Moreover, in rejecting

the asserted justification of presidential security, the court

stated that it was unwilling to assume, without proof, that

the asserted justification was valid. 361 F. Supp. at 586.

Ideally, police officers will always protect to the extent

of their ability the rights of persons to engage in First

Amendment activity. Yet, the law does not expect or re-

quire them to defend the right of a speaker to address a

hostile audience, however large and intemperate, when to

do so would unreasonably subject them to violent retaliation

and physical injury. In such circumstances, they may dis-

charge their duty of preserving the peace by intercepting

his message or by removing the speaker for his own protec-

tion without having to respond in damages. Accordingly,

whether a police officer must respond in damages for his

actions is judged by whether his conduct was reasonable,

considering all the circumstances, and by whether he acted

in good faith. A police officer’s stated good faith belief in

the necessity or wisdom of his action is not dispositive of

that element of the defense, but must be supported by ob-

jective evidence. See, e.g., Pierson v. Ray, supra; Monroe

v. Pape, 365 U.S. 167 (1961) ; Scott v. Vandiver, 476 F. 2d

238 (4th Cir. 1973) ; Rodriguez v. Jones, 473 F. 2d 599 (5th

Cir. 1973); Dowsey v. Wilkins, 467 F. 2d 1022 (5th Cir.

1972). To hold that a police officer is exonerated from lia-

bility if he merely acts in subjective good faith might foster

ignorance of the law or, at least, encourage feigned ignor-

ance of the law. This we are unwilling to do. The law does

not expect police officers to be sophisticated constitutional

or criminal lawyers, but because they are charged with the

responsibility of enforcing the law, it is not unreasonable

to expect them to have some knowledge of it. We cannot

permit a police officer to avoid liability for damages by

pleading ignorance of the law when he unreasonably or in

bad faith oversteps the bounds of his authority and invades

the constitutional rights of others. At the same time, courts

should not “second guess” police officers who are often

required to assess a potentially dangerous situation and re-

spond to it without studied reflection. Thus, even though a

police officer may not have chosen the wisest or most rea-

sonable course of action, he will not be civilly liable if his

conduct is based on a reasonable and good faith belief that

it was necessary under the circumstances. See, e.g., Smith

v. Ross, 482 F. 2d 33, 37 (6th Cir. 1973), where this court

stated, in affirming the dismissal of a complaint in a section

1983 action after trial, “We do not condone the actions of

the deputy, who would have served his office more honor-

ably by unequivocally protecting appellants regardless of

the local unpopularity his actions might have evoked.”

In examining whether appellees Johnson and Medley

acted in good faith and whether their asserted belief that

their actions were necessary to protect the President was

reasonable under the circumstances, it is “our duty

to make an independent examination of the whole record.”

Edwards v. South Carolina, supra, at 235. There is no evi-

dence that Miss Glasson’s placard posed any threat to the

safety of the President, to his motorcade, or to onlookers.

If any danger to public order existed, it was posed by the

persons who were offended by her message. Yet, these per-

sons were located across the street from appellant, were

only twenty-five to thirty in number, and never even stepped

off the curb on their side of the street in the direction of

Miss Glasson. In addition, there were approximately eight

to twelve police officers on duty in close approximation to

this moderately sized crowd and, although Johnson testified

that he was not sure whether this force would have been

adequate to maintain order, he also testified that reinforce-

ments could have been obtained rapidly had that been neces-

sary. Although Officers Medley and Johnson characterized

the hecklers as “near to riot”, at no time did they admonish

the crowd, call for reinforcements, or even alert the Secret

Service despite the claimed danger to the President. More-

over, the disturbance did not attract the attention of any

uther police officers stationed nearby. These circumstances,

taken together, demonstrate that their asserted belief that

the destruction of appellant’s poster was necessary to presi-

dential security and to public order was not reasonable.

Our examination of the record also convinces us that

the destruction of appellant’s poster was not done in good

faith. The general order of the day was to destroy all

posters “detrimental” or “injurious” to the President.

When Officer Medley first noticed Miss Glasson’s poster he

determined that it was detrimental to the President, a judg-

ment in which Officer Johnson concurred before ordering its

destruction. When Officer Medley took the poster from

Miss Glasson he informed her that the reason for his action

was that the poster was “detrimental to the United States,”

not that she, the President, or any other person was en-

dangered by it. Both officers testified that only posters

favorable to the President were permissible. Moreover,

Officer Johnson unequivocally testified that had this same

crowd under the same circumstances been outraged by a

poster favorable to the President he would not have ordered

its destruction. Although he later qualified his answer, his

testimony still demonstrates that a different standard would

have been applied had the crowd been provoked by a poster

favorable to the President. The actions of Officers Medley

and Johnson were the result of an official determination

not to permit dissent and of their failure to accord to ap-

pellant the right to engage in activity protected by the First

Amendment. Also, they failed to recognize her right to be

protected from criminal assault and battery. They testified

that they had no obligation to protect appellant, and that

had any member of the crowd proceeded against her they

would not have arrested the aggressor because in their judg-

ment appellant’s poster was “inflammatory.” The actions

and attitudes of appellees Medley and Johnson thus bespeak

a callous disregard of Miss Glasson’s right to express and

to advocate peacefully her ideas and exhibit shocking dis-

regard of her right to have her person and property pro-

tected by the state from violence at the hands of persons ir

disagreement with her ideas. Compare, Gregory v. Chicago,

supra.

Accordingly, we hold that these police officers are re-

quired to respond in damages under section 1983 of the

Civil Rights Act because they suppressed appellant’s peace-

ful communication of ideas protected by the First Amend-

ment. -When other persons became hostile because of dis-

agreement with the content of her communication, the police

officers were not, authorized to suppress the offending

speech. They may not defend against a section 1983 action

on the ground that her message “could impede the progress

of the motorcade and jeopardize the safety of the President

other members of the motorcade and the onlookers in the

crowd,” when they made no attempt to calm the crowd whose

unruliness was limited to muttering threats unaccompanied

by action; when they admit that they, either alone or with

available reinforcements, could have handled a potential

disturbance; when they did not contact the Secret Service

or call for reinforcements; and when they admit that had

the same crowd been provoked by a poster favorable to the

President, they would not have destroyed it.

We also determine, after a careful examination of the

entire record, that Miss Glasson’s poster was taken from

her pursuant to a “class-based invidiously discriminatory

animus,” Griffin v. Breckenridge, 403 U. S. 88, 102 (1972)

and that, unless there exists some other basis for excusing

appellees Hyde, Johnson and Medley, appellant proved a

violation of section 1985(3) of the Civil Rights Act, 42

U.S.C. § 1985(3). Section 1985(3) provides in relevant

part: .

If two or more persons in any State . . . conspire

, . for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and im-

munities under the laws; . . . the party so injured or

deprived may have an action for the recovery of dam-

ages, occasioned by such injury or deprivation, against

any one or more of the conspirators.

The United States Supreme Court, in a recent inter-

pretation of this statute, stated: “The language requiring

intent to deprive a person of equal protection, or equal

privileges and immunities, means that there must be some

racial, or perhaps otherwise, class-based, invidiously dis-

criminatory animus behind the conspirators’ action.”

Griffin v. Breckenridge, supra at 102. Although the Court,

in that case, refused to decide whether discrimination based

on a criterion other than race would be sufficient to estab-

lish a cause of action under the Act, its earlier decisions

have suggested that this is so. £.g., Snowden v. Hughes,

321 U.S. 1 (1944). Accordingly, this court, in construing

the statute, has held that the statutory language does not

require that the discrimination be based on race. E£.g.,

Cameron v. Brock, 473 F. 2d 608 (6th Cir. 1973) ; Azar V.

Conley, 456 F. 2d 1382 (6th Cir. 1972). Accord, e.g.,

Richardson v. Miller, 446 F. 2d 1247 (3d. Cir. 1971). In the

Cameron case, we affirmed a judgment for plaintiffs in an

action brought by a supporter of an incumbent sheriff’s op-

ponent who was arrested while distributing campaign

leaflets and who charged that his arrest was a part of a

conspiracy to deprive him and other supporters of the

sheriff's opponent of the equal protection of the laws. In

affirming, we held “that § 1985(3)’s protection reaches

clearly defined classes, such as supporters of a political

candidate. If a plaintiff can show that he was denied the

protection of the law because of the class of which he was a

member, he has an actionable claim under § 1985( 3).” 473

F’. 2d at 610.

In the case before us, the district court found that the

action of the police officers was not based upon an invidious

criterion. Whether that conclusion is one of fact, or law,

or mixed, makes no difference because we hold that the

conclusion was not merely wrong but clearly erroneous. The

record shows indisputably that the Louisville police officers

established as a guideline for monitoring the crowd during

the President’s motorcade an invidious discrimination be-

tween persons displaying posters or signs critical of the

President and those with posters or signs favorable to him.

First, during the general orders on the morning of July 14,

Chief of Police Hyde was present when Officers Medley and

Johnson were instructed to destroy any sign “detrimental”

or “injurious” to the President. When Officer Medley’s

attention was attracted to appellant’s poster he determined

that it was detrimental, and Johnson agreed, referring to

the general orders of the day. Although there was some

conversation between Johnson and Medley concerning the

opposition of some members of the crowd to the poster, the

record discloses that this consideration was only a minor

factor in their decision to proceed against Miss Glasson.

At the time of the unrest, it is undisputed that neither John-

son nor Medley did anything to calm the crowd except to

express assurances that they would accede to and carry out

its wishes. Moreover, when Officer Medley destroyed ap-

pellant’s poster, his justification expressed to her was not

that her personal safety or that of the President was en-

dangered but that her message was detrimental to the

President or to the United States.

At trial, when Officer Medley was asked what kind of

poster would have been permissible that day, he replied that

only those that had “Welcome President Nixon” or similar

messages would have been permitted. When Officer John-

son was asked whether he would have ordered the destruc-

tion of a poster favorable to the President, he answered,

“No.” Moreover, both officers testified that they had no

obligation to protect Miss Glasson in the event the crowd

assaulted her because her poster was “inflammatory.”

The record is thus unmistakably clear that appellees in-

tended to permit no criticism of the President that day. A

more invidious classification than that between persons who

support government officials and their policies and those

who are critical of them is difficult to imagine. Appellees

drew a line that was not merely invidious but one that also

struck at the very heart of the protection afforded all per-

sons by the First and Fourteenth Amendments. See, New

York Times, Inc. v. Sullivan, supra.

We hold that the district court erred in entering a judg-

ment for appellees in the section 1983 action on the grounds

that Officers Johnson and Medley acted reasonably and in

good faith in destroying appellant’s. poster and in the sec-

tion 1985(3) action on the ground that appellant had failed

to prove that the destruction of her poster resulted from an

invidiously discriminatory animus. Accordingly, we re-

verse and remand for further proceedings consistent with

this opinion and for a determination of the damages Miss

Glasson sustained. In so doing, we observe that appellant

may recover not only for out-of-pocket expenses but also

for emotional and mental distress. Donovan v. Reinbold,

433 F. 2d 738 (9th Cir. 1970).

Reversed and remanded.

CERTIFICATE OF SERVICE

I, Martin R. Glenn, one of the attorneys for Petitioners,

acting on behalf of all counsel for all Petitioners, and being

a member of the Bar of the Supreme Court of the United

States, do hereby certify that on the 11th day of September,

1975, I served copies of the foregoing Petition for Writ of

Certiorari to the Supreme Court of the United States on

Marjorie Glasson, Respondent, by mailing copies in duly

addressed envelopes, with first class postage prepaid to his

respective attorneys of record, as follows:

Philip Grauman

425 West Liberty Street

Louisville, Kentucky 40202

Thomas L. Hogan

205 South Fourth Street

Louisville, Kentucky 40202

Martin R. Guenn

Assistant Director of Law

Room 200, City Hall

Louisville, Kentucky 40202

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.