Petition — Rhodes v. Krause

Supreme Court, U. S.

FILED

JAN 17 1978

\ a

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

971017

. JAMES A. RHODES,

Petitioner

v.

ARTHUR KRAUSE, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

N. VICTOR GOODMAN

STEPHEN LEWIS

Huntington Bank Building

17 South High Street

Suite 515

Columbus, Ohio 43215

Attorneys for Petitioner

James A. Rhodes

January 17, 1978

WILSON - EPgs PRINTING Co.. INC. - RE 7.6002 - WASHINGTON D.C. 20001

— 00

a

TABLE OF CONTENTS

r ̃ .... 8

Questions Presented

Constitutional and Statutory Provisions Involved

Statement of the Case ot Ee n

I. The Complaints and this Court's Decision in

II.

III.

Scheuer v. Rhodes, 416 U.S. 23m2mWi1ꝛ2222

The Evidence Pertaining to the Liability Issues

Presented by this Petition

The Jury’s Verdict for Defendants, the District

Court’s Judgment and the Decision of the Court

of Appeals 7 daibadgienihitic.

Reasons for Granting the Writ—The Court Below Has

Decided Important Questions under 42 U.S.C. § 1983

in a Manner Which Appears to Be Inconsistent with

Decisions of this Court; If the Questions Are Open

They Should Be Decided Now

I. The Use of “Excessive Force” in Attempting to

II.

Conclusion

Deal with a Civil Disturbance Does Not Consti-

tute a Denial of Due Process Remediable Under

DI

On this Record Governor Rhodes Is Entitled to

Judgment

10

14

18

ii

4

TABLE OF AUTHORITIES

Cases: Page

Ford v. Byrd, 544 F.2d 194 (C. A. 55 21

Gilligan v. Morgan, 413 U.S. 12:0 8 12

Ingraham v. Wright, 430 U.S. 66ũ( i 14, 15, 16

Jones v. Marshall, 528 F.2d 132, 133 (C. A. 22 17, 18

Mattis v. Schnorr, 547 F. 2d 1007 (C. A. 8), vacated

and remanded sub nom. Ashcroft v. Mattis, 431

, 17, 18

ee teetin 15, 16, 17

Procunier v. Navarette, No. 76-44vIEVskv ee. 22

ey CR cena 17

Scheuer v. Rhodes, 416 U.S. 232 2, 3, 4, 5, 18, 19, 20

United States Constitution:

NE Ee eR Ee 11, 14

r, . 1 3, 16, 17

Amendment VIII — eatin 12, 14

r a“ 4

TTL RIA ALAA RE TOT 3, 14, 15, 16

Statutes: N

,, ˙ ¾ 2

Civil Rights Act of 1871, 42 U.S.C. § 19838 . 2, 3, 4, 13,

14, 17, 18, 20, 22

Miscellaneous:

Developments in the Law-Section 1983 and Fed-

| eralism, 90 Harv. L. Rev. 1133 (1977) 21

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1977

No.

JAMES A. RHODES,

4 Petitioner

ARTHUR KRAUSE, et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, James A. Rhodes, prays that a writ of

certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit, entered in

this proceeding on September 12, 1977, granting a new

trial to plaintiffs in this action.

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth Cir-

cuit, not officially reported, is set forth in the separately

bound Appendix at pp. Al-A35.“ The Order of the Court

1A single, separately bound Appendix containing the opinions

below is being filed in this case and in Del Corso v. Krause, which

seeks review of the same judgment. That Appendix will be referred

to herein as “App.”

2

of Appeals denying the petitions for rehearing and the

opinion of Circuit Judge Weick, dissenting from the de-

nial of en banc consideration, are set forth in the App.

A36-A45. The District Court’s Memorandum and Order

overruling plaintiffs’ motion for new trial and judgment

notwithstanding the verdict is set forth at App. A46-A48.

JURISDICTION

The judgment of the Court of Appeals for the Sixth

Circuit was entered on September 12, 1977. A timely peti-

tion for rehearing with suggestions for rehearing en banc

was denied on October 20, 1977. This Court has juris-

diction under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Does the use of excessive force in attempting to deal

with a civil disturbance give persons injured thereby a

cause of action under 42 U.S.C. § 1983 on the theory that

they have been deprived of life, liberty or property with-

out Due Process of Law?

2. Is the Court of Appeals’ decision directing a new

trial as to Governor Rhodes consistent with the limited

scope of official liability authorized by Scheuer v. Rhodes,

416 U.S. 232?

3. (a) Does a threat to a juror in a civil action create

a presumption of prejudice authorizing a Court of Ap-

peals to itself set aside the jury’s verdict on the ground

that no record has been made in the trial court to rebut

that presumption?

(b) If so, may the Court of Appeals set aside the ver-

dict, although the party challenging the verdict did not,

after learning of the threat, object to submitting the case

to the jury without an interrogation of the juror who was

threatened?

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the Fifth and Fourteenth Amend-

ments to the Constitution of the United States, and 42

U.S.C. § 1983. They are reprinted in pertinent part at

p. Bl, infra.

STATEMENT OF THE CASE

I. The Complaints and this Court's Decision in Scheuer

v. Rhodes, 416 U.S. 232.

Petitioner, James A. Rhodes, Governor of the State of

Ohio, was a co-defendant below in actions brought by

nine persons injured and the personal representatives of

four persons killed on the campus of Kent State Univer-

sity on May 4, 1970. Named as defendants with Rhodes

were the Adjutant General of Ohio (Sylvester Del Corso),

the Assistant Adjutant General of Ohio (Robert Canter-

bury), a number of commissioned officers and enlisted

men of the Ohio National Guard, and the President of

Kent State University.

The action is now here after a trial which was held

pursuant to this Court’s remand in Scheuer v. Rhodes,

416 U.S. 232 (hereafter Scheuer). The Court there de-

scribed the complaints (which were consolidated for trial)

as follows:

“In essence, the defendants are alleged to have

‘intentionally, recklessly, willfully and wantonly’

caused an unnecessary deployment of the Ohio Na-

tional Guard on the Kent State campus and, in the

same manner, ordered the Guard members to perform

allegedly illegal actions which resulted in the death

of plaintiffs’ decedents. Both complaints allege that

the action was taken ‘under color of state law’ and

that it deprived the decedents of their lives and rights

without due process of law. Fairly read, the com-

4

plaints allege that each of the named defendants, in

undertaking such actions, acted either outside the

scope of his respective office or, if within the scope,

acted in an arbitrary manner, grossly abusing the

lawful powers of office.” (416 U.S. at 235)

In Scheuer, this Court held, contrary to the District Court

and to the Court of Appeals, that “dismissal [of the

complaints] was inappropriate at this stage of the litiga-

tion“ * *” id. It rejected the lower courts’ theory that

the actions are barred by the Eleventh Amendment; it

held further that under 42 U.S.C. § 1983 the executive

officers, including Governor Rhodes, do not possess ab-

solute immunity from suit, but rather enjoy a qualified

immunity, which the Court described as follows:

“These considerations suggest that, in varying

scope, a qualified immunity is available to officers of

the executive branch of government, the variation

being dependent upon the scope of discretion and re-

sponsibilities of the office and all the circumstances

as they reasonably appeared at the time of the action

on which liability is sought to be based. It is the

existence of reasonable grounds for the belief formed

at the time and in light of all the circumstances,

coupled with good-faith belief, that affords a basis for

qualified immunity of executive officers for acts per-

formed in the course of official conduct.” (416 U.S.

at 247-248.)

The Court carefully chose to go no further in delineating

the scope of the immunity at that stage of the record. The

Court defined the issues to be litigated on remand:

“The documents properly before the District Court

at this early pleading stage specifically placed in is-

sue whether the Governor and his subordinate officers

were acting within the scope of their duties under

the Constitution and laws of Ohio; whether they acted

within the range of discretion permitted the holders

of such office under Ohio law, and whether they acted

5

in good faith in proclaiming an emergency and as

to the actions taken to cope with the emergency so

declared. Similarly, the complaints place directly

in issue whether the lesser officers and enlisted per-

sonnel of the Guard acted in good faith obedience

to the orders of their superiors. Further proceedings,

either by way of summary judgment or by trial on

the merits, are required. The complaining parties

are entitled to be heard more fully than is possible

on a motion to dismiss a complaint.

“We intimate no evaluation whatever as to the

merits of the petitioners’ claims or as to whether it

will be possible to support them by proof. We hold

only that, on the allegations of their respective com-

plaints, they were entitled to have them judicially re-

solved.” (416 U.S. at 250.)

II. The Evidence Pertaining to the Liability Issues Pre-

sented by this Petition.

Following remand, the parties engaged in extensive dis-

covery. Although the Scheuer opinion did not direct a trial

on the merits, motions for summary judgment were over-

ruled. The trial, which lasted approximately fifteen weeks,

established the following concerning the issues of liability

presented by this Petition:

On Friday, May 1, 1970, demonstrations were held on

the campus of Kent State University for the purpose of

burying the United States Constitution and to protest

the invasion of Cambodia by United States troops in the

Vietnam war (A. 1037; 1268). That evening, several

hundred persons gathered in downtown Kent, Ohio, dam-

aging and looting several business buildings, starting fires,

and assaulting automobiles and their occupants (A. 3182-

2 Throughout this petition, references to the Appendix filed in

the Court of Appeals are designated (A. -——). References to the

Supplemental Appendix filed in the Court of Appeals are desig-

nated (S. ——).

6

8; 3248; 3255; 3398; S. 53-55). Members of the Kent

Police Department, attempting to disperse the crowd and

prevent the damage, were injured (A. 3189-92).

As a result of the Mayor’s own observation of the ex-

tensive damage, and discussions with members of the City

of Kent police department, the Mayor, at approximately

12:30 A.M., on Saturday May 2, declared a state of civil

emergency and established a curfew (A. 3397-3401; Pl.

Ex. 48.). The Mayor called the Governor’s office and

explained the situation, but he did not then request the

assistance of the National Guard (A. 3397-8). In turn,

the Governor’s office instructed the National Guard to

investigate the conditions in the City of Kent, and the

Guard sent a liaison officer to the city (A. 2677; 3269;

3406). At approximately 5:30 P.M. on May 2, the Mayor

of Kent, after consultation v.‘th local law enforcement

officers, did ask the Governor’s office for assistance in

maintaining law and order (A. 3193; 3270; 3447; 3413).

The Mayor felt the city did not have sufficient forces to

maintain law and order (A. 3447). After consulting with

his staff, Governor Rhodes ordered National Guard units

to the City of Kent to aid the civil authorities (A. 2664;

2677-9). The evidence established that the National

Guard was ordered to duty in aid of civil authorities, and

that, at all times, the local authorities were in control

(A. 3440-1; 3450).

The violence moved from the City of Kent to the Com-

mons area of the Kent State University Campus, where

student demonstrators set fire to the University’s ROTC

building (A. 1012; 1274-5; 1303; 1366; 2198-2200; 3227-

31). Firemen from the City of Kent, sent to fight the

ROTC building fire, were assaulted by the demonstrators

(A. 3229); fire hoses were slashed and destroyed (A.

1199; 1996).

7

Officials in charge of security at Kent State University

decided help was needed to control the situation (A.

3489-90). Members of the National Guard were requested

by the police department to go on campus, to maintain

order and to stop looting and burning (A. 3274). There-

after, the Ohio State Highway Patrol arrived to assist

in maintaining order on campus (A. 2272; 3335; 3341-6).

Plaintiffs conceded in the court below:

“Plaintiffs concede on appeal, just as they did at

trial, that these events justified the Governor’s call-

up of National Guard troops to assist civilian author-

ities in the City of Kent.” (Reply Brief, p. 27)

On Sunday morning, May 3, 1970, Governor Rhodes

arrived in the City of Kent, and was informed by Gen-

eral ‘Yel Corso that the violence was under control and

order temporarily restored (A. 2283). The Governor

then met briefly at the fire station with city and local

law enforcement officials to be briefed on the situation as

it then existed (A. 2710-13; 3415-6).

At the conclusion of this meeting, a press conference

was held at the insistence of the news media (A. 3416;

2732-3). During this conference, the Governor and Gen-

eral Del Corso expressed their concern over the situation

in the City of Kent and on the Kent State campus. The

Governor assured the local officials that the National

Guard would assist them in protecting their community

until peace and order were completely restored (A. 2740-

44; Court Exhibit 2).

Following the press conference, Governor Rhodes and

General Del Corso left the City of Kent. As the Gov-

ernor was leaving the Kent State University Airport, he

met briefly with the President of the University, and

informed him that the National Guard was on campus to

help maintain peace and order and to insure that classes

could continue. Governor Rhodes did not return to the

a

8

campus; he was not present on May 4, 1970, the day the

shooting occurred (A. 2787-8; 2595-2600).

Later on May 3, a crowd began to form on campus de-

spite patrols by National Guardsmen and a small number

of Highway Patrolmen (A. 3346-50). The demonstrators

moved to the University, President's home; because of

rumors that the home would be burned, the crowd was

dispersed (A. 0871; 1463). A cordon of police, sheriff’s

deputies and Guardsmen stopped the moving mob frorh

reaching the downtown area (A. 3200; 3285). The people

were ordered to disperse because they were violating

the curfew (A. 3205). Some rioters responded by rush-

ing the police officers and Guardsmen, and assaulting

them with various objects (A. 3209; 3285; 3205-8; 3358-

9). Approximately eighty persons were arrested for vio-

lation of curfew (A. 3218).

At about 10:00 a.m. on Monday, May 4, 1970, General

Canterbury called a meeting of city officials, local law

enforcement authorities, University officials, and the High-

way Patrol representative (A. 2426; 2531-33). The pur-

poses of the meeting were to review the events of the

past 24 hours, to discuss a workable curfew for both the

City of Kent and the Kent State University Campus, and

to determine whether the National Guard could be re-

called from the community and the campus (A. 2430;

3669-70). Although General Canterbury expressed his de-

sire to remove the troops as soon as possible, city officials

expressed their concern that the troops should not be

withdrawn before the situation was completely under

control (A. 2507; 2609; 3292; 3423; 3670). At this

Monday morning .neeting, University officials reported

that another mass demonstration was scheduled to be

held at noon on the University Commons (A. 2430; 2612;

3671). It was decided that the rally should not be per-

mitted (A. 2432; 3292-4; 3380; 3387; 3480-2; 3436).

After leaving the Monday morning meeting, General Can-

terbury advised the commander of the troops that the

Guard had been given the mission by the local authorities

to disperse the scheduled student demonstration (A. 2446;

2449-50; 2530-1). The Guardsmen were formed in line

in front of the burned-out ROTC building (A. 2115).

By noon, the crowd had grown to thousands (A. 1316).

Persons were observed carrying bags of rocks, wearing

heavy jackets and gloves and carrying gas masks (A.

0842; 0847; 2466; 3368). Some of the individuals were

seen throwing stones (A. 0949-51). General Canterbury

requested a member of the Kent State University Police

Department to order the crowd to disperse (A. 0892-3;

2458-9). Riding in a military jeep, with a loudspeaker,

the police officer ordered the people in the crowd, for

their own safety, to disperse, advising them the gathering

was illegal (A. 2180; S. 62). They responded to the

announcement by throwing many rocks at the jeep, and

shouting obscenities and anti-war slogans (A. 0936; 1015;

1187; 1999; 2223; S. 62-4). The jeep returned to the

area of the ROTC building because the crowd, rather

than dispersing, was rapidly growing in size and was

becoming more violent (A. 2550; 3368).

Tear gas was fired (A. 2468); the demonstrators still

refused to disperse, throwing the tear gas canisters and

other missiles back toward the Guardsmen (A. 762; 788).

Because of high winds, the tear gas was ineffective (A.

2551-3). A unit of 104 enlisted men and eleven officers

prepared to disperse the crowd (A. 2482; 2551-3). Be-

fore moving across the Commons, the Guardsmen had

been ordered to load and lock their weapons (A. 2115;

1712-14). Throughout their movements, the Guardsmen

were struck with rocks (A. 2555).

At a point during the Guard maneuvers, some of the

Guardsmen discharged their weapons. There was no order

or command to fire. Immediately after the Guardsmen

fired, the officers and senior enlisted men shouted, “Cease

10

fire’, and attempted to stop the shooting (A. 2562-3).

After a few seconds, the firing ceased and the Guards-

men returned to the area of the ROTC building.

* * * „

Governor Rhodes, pursuant to both federal and state

law, had appointed General Del Corso, a distinguished

Regular Army career officer with a wide military back-

ground, to the office of Adjutant General (A. 2349-53).

Under Ohio law, the Adjutant General is the chief of staff

and administrative head of the Ohio National Guard. Du-

ties of training Ohio National Guardsmen were given to

and carried out by the office of the Adjutant General (A.

2680). Governor Rhodes testified without contradiction

that he received reports from the Adjutant General con-

cerning riot duty training of the National Guard, and

that he had been told by a representative of the United

States Department of Defense that the Ohio National

Guard was doing one of the fine jobs of riot control (A.

2681-2).

III. The Jury’s Verdict for Defendants, the District Court’s

Judgment and the Decision of the Court of Appeals.

The defendants had moved for a directed verdict at

the conclusion of the plaintiffs’ proof and at the conclu-

sion of all proof. Those motions were denied and the

case was sent to the jury.

The parties below had stipulated that the jury would

consist of twelve members and that a vote of nine jurors

would be required to reach a verdict. After five days of

deliberation, the jury returned a verdict in favor of all

defendants by a nine-to-three vote.“ Plaintiffs filed a mo-

Near the end of the trial it was reported to the District Judge

that one juror had been threatened three times and assaulted on

one occasion. The District Court’s response to this problem, which

the Court of Appeals later held to be inadequate, is described in

detail in the companion Petition for Certiorari (Del Corso v.

Krause) to which we respectfully invite the Court’s attention.

11

tion for new trial on all issues and a motion for judg-

ment notwithstanding the verdict on the issue of unlaw-

ful dispersal. Those motions were denied by the District

Court, which thereupon entered judgment on the verdicts

in favor of the defendants (App. A46-A48). Plaintiffs

appealed to the Court of Appeals for the Sixth Circuit.

The Court of Appeals grouped the claimed errors into

five categories: “(1) lack of substantial evidence to sup-

port the verdict, (2) violation of First Amendment rights

as a matter of law, (3) numerous errors in evidentiary

and procedural rulings of the district court, (4) failure

to deal properly with extraneous influences on the jury

and (5) errors in the court’s charge to the jury.” (App.

A3).

The Court of Appeals reversed the judgment and di-

rected a new triai, on the sole ground that the trial court

had failed to deal properly with extraneous influences

on the jury:

„. . . [T]he verdict was returned by à jury, at

least one of whose members had been threatened and

assaulted during the trial by a person interested in

its outcome.” (App. A3)

The Court of Appeals found no other errors prejudicial

to plaintiffs. It expressly held that the verdict in defend-

ants’ favor was supported by substantial evidence (App.

A19); it held also that defendants were entitled to a

directed verdict on the First Amendment claims:

“In view of the uncontradicted evidence that vio-

lence accompanied assemblies of students and young

people for three consecutive days in Kent and on the

campus, finally subsiding at about 3:00 a.m. on May

4th, the order banning assemblies on that day did not

violate the First Amendment. * * * The motion for

directed verdict on the separate claims for damages

12

for violation of the right of peaceable assembly should

have been granted. Upon another trial this claim will

not be an issue.” (App. A16)

In ruling on the District Court’s instructions, the Court

held also that the plaintiffs were not entitled to go to the

jury on the theory that they had been subjected to cruel

and unusual punishment in violation of the Eighth

Amendment:

“One aspect of the district court’s charge appears

to conflict with a recent Supreme Court ruling. In

the present cases the court instructed the jury that it

could find for the plaintiffs under their § 1983 claim

if the action of the defendants constituted cruel and

unusual punishment as proscribed by the Eighth

Amendment. In Ingraham v. Wright, [430] U.S.

[651], 45 U.S.L.W. 4364 (April 19, 1977), the Court

held that the Eighth Amendment was designed to pro-

tect those convicted of crimes. Where a state seeks

to punish without an adjudication of guilt, ‘the per-

tinent constitutional guarantee is the Due Process

Clause of the Fourteenth Amendment.’ [430 U.S. at

672, n.40.] Upon another trial separate instructions

on cruel and unusual punishment should not be

given.” (App. A17)

The Court rejected the defendants’ contention that Gil-

ligan v. Morgan, 413 U.S. 1 (a prior action arising out

of the Kent State incident, but which sought only de-

claratory and injunctive relief), precluded the Court from

submitting to the jury issues relating to “training, weap-

onry and orders of the Ohio National Guard”. The Court

said:

“It was for the jury to determine whether the

Ohio orders and regulations, particularly with re-

spect to use of loaded weapons in dealing with civil

disturbances, represented a departure from Army

regulations. If such a departure was found to exist,

it was a factor to be considered in deciding the ulti-

13

mate issues of liability in these cases. A justiciable-

controversy related to training, weaponry and orders

was presented.” (App. A18)

The Court of Appeals rejected all of plaintiffs’ other

objections to the trial court’s charge to the jury and to

its evidentiary and procedural rulings. The defendants

filed petitions for rehearing with suggestions for re-

hearing en banc. These petitions were denied with three

judges dissenting from the denial of en banc considera-

tion (see App. A386). Judge Weick wrote a dissenting

opinion, wherein he stated:

“This is one of the most important cases ever to

come before this Court for determination. It surely

merited en banc consideration.” (App. A37)

Judge Weick devoted the major portion of his opinion

to the individual liability of Governor Rhodes, concluding

that “the Governor was entitled to a directed verdict.”

(App. A388). Addressing himself to this Court’s opinion

in Scheuer, he observed that this Court had held only “that

the District Court acted prematurely in dismissing the

complaint and that it should have taken some evidence”

(App. A40, emphasis in original), and he added that

although “the plaintiffs have been fully heard” there

“was not an iota of evidence offered at the trial to sup-

port” their allegations as described in this Court’s quo-

tation from their complaints.* (App. A42).

Judge Weick also determined that the panel had erred in its con-

sideration of the jury issue, and should have remanded for an evi-

dentiary hearing on the question of jury tampering, rather than

directing a new trial. (App. A44-A45).

14

REASONS FOR GRANTING THE WRIT

THE COURT BELOW HAS DECIDED IMPORTANT

QUESTIONS UNDER 42 U.S.C. § 1983 IN A MANNER

WHICH APPEARS TO BE INCONSISTENT WITH

DECISIONS OF THIS COURT; IF THE QUESTIONS

ARE OPEN THEY SHOULD BE DECIDED NOW.

I. The Use of “Excessive Force” in Attempting to Deal

with a Civil Disturbance Does Not Constitute a Denial

of Due Process Remediable Under 42 U.S.C. § 1983.

The Court of Appeals directed dismissal of plaintiffs’

claims under 42 U.S.C. § 1983 insofar as they rest on an

asserted denial of their rights under the First and Eighth

Amendments. Nevertheless, the Court held that they were

entitled to a new trial to determine whether they—or

their decedents—had been deprived of life, liberty or

property without due process of law. According to the

Court of Appeals, the question for retrial is:

“whether excessive force was employed in attempt-

ing to deal with a civil disturbance. Both the due

process claims and the pendent state claims are con-

cerned with the basic issue of the appropriateness of

the response of state officials and National Guard

members to the conditions which existed and de-

veloped at the May 4th noon assembly on the Kent

State Campus.” (App. A20)

We submit that the Court below erred in holding that

the use of excessive force to quell a civil disturbance gives

rise to a Due Process claim. The Court correctly held that

Ingraham v. Wright, 430 U.S. 651, precludes plaintiffs

from relying on the Eighth Amendment, which “was

designed to protect those convicted of crimes” (App. A17).

The Guardsmen plainly were not seeking to punish the

students for crimes; rather, they were attempting to dis-

perse an unlawful assembly and to prevent the commis-

sion of crimes. But while the court below correctly

— =

15

stated that “[w]here a state seeks to punish without an

adjudication of guilt, the pertinent constitutional guar-

antee is the Due Process Clause of the Fourteenth

Amendment (quoting Ingraham, 430 U.S. at 672, n.40),

that holding does not aid plaintiffs here, because the de-

fendants did not seek “to impose punishment” on them

at all.

We of course do not contend that the Due Process

Clause is implicated only when the state deprives a per-

son of life, liberty or property in the course of punish-

ing that person—the reach of that Clause is much

broader. But it is likewise clear that the Clause does not

reach all conduct by the state or its employees which

deprives an individual of life, liberty or property. The

recent precedent in point is not Ingraham, but Paul v.

Davis, 424 U.S. 693, where the Court rejected the con-

tention “that the Fourteenth Amendment’s Due Process

Clause should ex proprio vigore extend * * * a right to

be free of injury wherever the State may be character-

ized as the tortfeasor.” (Id. at 701).

The Court reasoned:

% * such a reading would make of the Four-

teenth Amendment a font of tort law to be super-

imposed upon whatever systems may already be

administered by the States. We have noted the ‘con-

stitutional shoals’ that confront any attempt to

derive from congressional civil rights statutes a

body of general federal tort law. Griffin v. Brecken-

ridge, 403 U.S. 88, 101, 102 (1971); a fortiori the

procedural guarantees of the Due Process Clause

cannot be the source for such law.” (424 U.S. at 701).

Indeed, the Paul opinion appears to have anticipated the

precise problem in this case:

“If respondent’s view is to prevail, a person ar-

rested by law enforcement officers who announce that

they believe such person to be responsible for a par-

16

ticular crime in order to calm the fears of an aroused

populace, presumably obtains a claim against such

officers under § 1983. And since it is surely far more

clear from the language of the Fourteenth Amend-

ment that ‘life’ is protected against state depriva-

tion than it is that reputation is protected against

state injury, it would be difficult to see why the sur-

vivors of an innocent bystander mistakenly shot by

a policeman or negligently killed by a sheriff driving

a government vehicle, would not have claims equally

cognizable under § 1983.” (424 U.S. at 698).

Even as mistaken or negligent shooting does not give

rise to a “Due Process” claim, neither does an allegation

that peace officers used “excessive force” bring into play

“the procedural guarantees of the Due Process Clause“

(id. at 701). Such misconduct simply has nothing to do

with the procedural guarantees of the Fifth and Four-

teenth Amendments. On this point, too, the court below

misread Ingraham v. Wright, for the issue wiiich this

Court decided under the Due Process Clause was not

whether the paddling of students was “excessive”, but

whether some kind of hearing was required before cor-

poral punishment was inflicted. Unlike the petitioners in

Ingraham, plaintiffs here do not claim that they were

entitled to some kind of hearing before the Guardsmen

fired; it is precisely because any such requirement would

be incongruous in this context that the Due Process

Clause has nothing to do with plaintiffs’ claim.°

We submit that certiorari should be granted to achieve

compliance with the Paul precedent, to eliminate con-

fusion concerning the meaning of Ingraham, and to ob-

If an analogy were to be drawn between plaintiffs’ situation

and the school context of Ingraham, the truly parallel situation

would be the forceful intervention by one or more teachers in a

fight between students or a similar disturbance; nothing in this

Court’s opinion or those of the dissenting Justices suggests that a

Due Process question would arise under those circumstances.

—

17

viate the necessity of another trial on plaintiffs’ federal

claims. Moreover, if Paul left open the question whether

the use of “excessive force” in stopping the commission of

an offense is a Due Process violation actionable under

1983, that question should be settled now. For the

federal courts to entertain such actions, and establish

standards of “excessiveness” in the performance of this

basic police function, would cut deeply into state prerog-

atives, contrary to the principle of Federalism which gov-

erned decision in Paul and in Rizzo v. Goode, 423 US.

362.

It is precisely these considerations which led the Second

Circuit to reject the claim that “a civil rights action lies,

under 42 U.S.C. § 1983, against a police officer who, in the

course of his duty, shoots and kills a person who has

committed a felony and is trying to escape arrest.” Jones

v. Marshall, 528 F.2d 132, 133 (C. A. 2). The Court de-

elined to allow such an action, even where the escapee's

crime “did not involve conduct threatening use of deadly

force” and there was not, “at the time of the shooting

substantial risk that the person fleeing arrest would

cause death or serious bodily harm to anyone if his ap-

prehension were delayed.” Id.“

A majority of the Eighth Circuit took the opposite

view in Mattis v. Schnorr, 547 F.2d 1007 (C.A. 8, en

banc, 4-3 decision), which was vacated and remanded by

*In a thoughtful opinion, which was plainly sympathetic to the

plaintiffs’ objections to the State’s rule that the use of deadly force

was privileged, Judge Oakes wrote:

“Here we are dealing with competing interests of society

of the very highest rank — interests in protectine human life

against unwarranted invasion, and in promoting peaceable

surrender to the exertion of law enforcement authority. The

balance that has been struck to date is very likely not the best

one that can be. In an area where any balance is imperfect,

however, there must be some room under § 1983 for different

views to prevail.” (528 F.2d at 142).

18

this Court because there was no case or controversy,

Ashcroft v. Mattis, 431 U.S. 171. If there is a difference

between the issue in this case and that in Jones and

Mattis, it is that the State’s interest is even greater in

stopping the commission of an offense than in apprehend-

ing an escapee; by a parity of reasoning it is all the less

appropriate for the federal courts to compel adherence to

their views of policy on the permissible degree of force

“employed in attempting to deal with a civil disturbance”

(App. A20) or other offense in progress. :

II. On This Record Governor Rhodes Is Entitled to

Judgment.

In the initial paragranhs of its opinion, the Court of

Appeals noted that this Court, in Scheuer, had “discussed

the doctrine of executive immunity and its application

in actions based on 42 U.S.C. § 1983 where it is claimed

that state officials have misused power which they possess

by reason of positions which clothe them with the author-

ity of state law.” But the Court of Appeals did not elabo-

rate on that standard or discuss the specific immunity is-

sues which this Court defined in Scheuer: “whether the

Governor and his subordinate officers were acting within

the scope of their duties under the Constitution and laws

of Ohio; whether they acted within the range of discre-

tion permitted the holders of such office under Ohio law

and whether they acted in good faith both in proclaiming

an emergency and as to the actions taken to cope with the

emergency so declared.” (416 U.S. at 250).

Scheuer held that those issues could not be resolved

on the pleadings; but the converse of that holding was

that if those issues were resolved in the Governor’s favor

he would be immune from liability. The Court of Appeals

therefore had the duty, before subjecting the Governor

to a second trial, to consider whether the plaintiffs had

presented sufficient evidence to create a jury question

against the Governor on any of the foregoing theories

19

of liability. We submit that if the Court of Appeals had

undertaken that task it necessarily would have concluded

that the Governor is entitled to dismissal.

Plaintiffs’ concession that the Governor’s call-up of the

National Guard to assist civilian authorities in the City

of Kent was justified (see p. 7, supra) takes out of the

case any claim of liability for “proclaiming an emer-

gency” (416 U.S. at 250). Turning to “the actions

taken to cope with the emergency so declared” (id.), the

decision to ban campus assemblies is removed as a basis

for liability by the Court of Appeals’ conclusion that this

order was constitutional. And, of course, the Governor did

not direct the deployment of the National Guardsmen

when they appeared on campus to disperse the crowd

or give the order to lock and load weapons (see p. 9,

supra). Thus, no question of his authority, discretion or

good faith with respect to those actions arises.

In sum, as Judge Weick observed below, “there was

not an iota of evidence offered at the trial to support”

the allegations of the complaints which were reinstated

in Scheuer (A42). The majority’s direction of a new

trial without even addressing the question of the Gov-

ernor’s personal liability deprives him of an important

benefit of his Scheuer immunity.“ It is also, we submit, a

7 The Court below dealt with the individual liability of only one

defendant :

“The defendant White, president of Kent State, had no control

over the actions of the National Guard. Since his participa-

tion in the decision to ban the May 4 assembly did not violate

rights of the plaintiffs, there is no theory under which he could

have been liable to the plaintiffs. Upon remand the district court

will dismiss all claims against this defendant.” (App. A16)

The Governor had “control over the actions of the National

Guard” on the day of the shooting only in the sense that, as its

Commander-in-Chief, he had legal authority to direct those actions.

But to predicate liability against him on that theory—which the

Court of Appeals did not articulate—would potentially subject all

governors to liability for the constitutional violations of their

subordinate officers. See pp. 20-21, infra.

20

serious neglect of the Court of Appeals’ responsibilities:

While 42 U.S.C. § 1983 renders high state officers an-

swerable in federal courts, those courts should not permit

actions against them to be maintained after the plaintiffs

have had the opportunity to establish facts to defeat

their immunity, but have, failed to do so; due regard for

the interests of the officers, and of the State they serve,

requires that interference with the defendants’ perform-

ance of their official duties be thus minimized. This Court

should review the Court of Appeals’ refusal to dismiss

the claims against the Governor because the decision be-

low disserves the interests of Federalism and is incon-

sistent with the law of the case as established in Scheuer.

The decision below should be reviewed also because of

its great importance in the developmen. of the law under

42 U.S.C. § 1983. When this case was first here, the Court

said:

“These cases, in their present posture, present no

occasion for a definitive exploration of the scope of

immunity available to state executive officials nor,

because of the absence of a factual record, do they

permit a determination as to the applicability of the

foregoing principles to the respondents here.” (416

U.S. at 249).

Now, however, there has been a full-blown trial of fifteen

weeks duration. Thus, if an argument can be made that

what was already decided in Scheuer is insufficient to es-

tablish the Governor’s immunity, this case offers an un-

usually informative record for elaboration of the prin-

ciples declared in Scheuer. It is a question of great and

recurring significance whether, and, if so, under what

circumstances, liability under § 1983 can be imposed on

the highest official in the chain of executive authority—

be it the Governor of a State or Mayor of a City. Such

an official is an attractive and obvious target in any ac-

tion under § 1983 for constitutional violations by any of

his subordinates, who will often be judgment proof.

—

21

The question is squarely presented on this record. The

Court of Appeals’ divergent treatment of Governor Rhodes

and Kent State University’s President White can be ex-

plained, if at all, only on the theory that the Governor’s

position gave him control over the actions of the National

Guard, see p. 19, n.7, supra. Yet the Governor neither

“direct[ed], participate[d] in, or approve[d]” the shoot-

ings which are the basis for plaintiffs’ claims. Cf. Ford

v. Byrd, 544 F.2d 194 (C.A. 5). As one commentator has

observed :

“The doctrine of respondeat superior has been held

generally inapplicable to the section 1983 action;

and most courts have been unsympathetic to the claim

that higher level officers have a general duty to the

public to supervise, correct, and control the actions

of their subordinates.”

108 See, e.g., Navarette v. Enomoto, 536 F.2d 277, 282 (9th

Cir. 1976), cert. granted, 97 S. Ct. 783 (1977); Jennings v.

Davis, 476 F.2d 1271, 1274-75 (8th Cir. 1973); Johnson v.

Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S.

1033 (1973). But see Carter v. Carlson, 447 F.2d 358 (D.C.

Cir. 1971), rev’d on other grounds sub nom. District of Co-

lumbia v. Carter, 409 U.S. 418 (1973); Hesselgesser v. Reilly,

440 F.2d 901 (9th Cir. 1971) (respondeat superior applicable

in § 1983 action if provided for by state law); Lewis v. Brauti-

gam, 227 F.2d 124 (5th Cir. 1955) (same).

104 See, e.g., Ford v. Byrd, 544 F.2d 194 (5th Cir. 1976);

Parker v. McKeithen, 488 F.2d 553 (5th Cir. 1974), cert. de-

nied, 419 U.S. 838 (1974); Johnson v. Glick, 481 F.2d 1028,

1034 (2d Cir.), cert. denied, 414 U.S. 1033 (1973); Delaney v.

Dias, 415 F. Supp. 1351 (D. Mass. 1976); Ammlung v. City of

Chester, 355 F. Supp. 1300 (E.D. Pa. 1973), aff d, 494 F.2d

811 (3d Cir. 1974). But see Sims v. Adams, 537 F.2d 829, 832

(5th Cir. 1976) (supervisory liability available for personal

participation, breach of state law duty; notice of past culpable

conduct and failure to prevent recurrence) ; Carter v. Carlson,

447 F.2d 358 (D.C. Cir. 1972) (supervisors liable for negligent

failure to train subordinates), rev’d on other grounds sub nom.

District of Columbia v. Carter, 409 U.S. 418 (1973).“ “

s Developments in the Law—Section 1983 and Federalism, 90

Harv. L. Rev. 1133, 1207 (1977).

22

Thus, by requiring the Governor to stand trial again

despite this record, the Court of Appeals has decided an

important federal question in a manner which is incon-

sistent with the prevailing rule in the Courts of Appeals.

For this reason, also, certiorari should be granted.“

CONCLUSION

For the foregoing reasons this Petition for Certiorari

should be granted. :

Respectfully submitted,

N. VICTOR GOODMAN

STEPHEN LEWIS

Huntington Bank Building

17 South High Street

Suite 515

Columbus, Ohio 43215

Attorneys for Petitioner

James A. Rhodes

»The issue of supervisory responsibility under § 1983 is presently

before the Court in Procunier v. Navarette, No. 76-446, which was

argued on Oct. 11, 1977.

With respect to questions 3(a) and (b) raised by this Petition

we rely on the statement of Reasons for Granting the Writ with

respect to the juror issues in the companion Petition, Del Corso v.

Krause.

Bl

APPENDIX

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the U.S. Constitution provides

in pertinent part as follows:

“* * * nor shall any person be deprived of life, lib-

erty, or property without due process of law; * * *”

The Fourteenth Amendment to the U.S. Constitution

provides in pertinent part as follows:

“Section 1: * * * nor shall any State deprive any

person of life, liberty or property, without due proc-

ess of law; * * *”

42 U.S.C. § 1983 provides:

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

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured

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

proceeding for redress.