Opposition — Rhodes v. Krause

3n the Supreme Court

‘Pnited States

Ocroser Term, 1977

No. 77-1017.

JAMES A. RHODES,

Petitioner,

WS.

ARTHUR KRAUSE, «i al.,

Respondents.

No. 77-1018

SYLVESTER DEL CORSO, et ai.,

Petitioners,

o

ARTHUR KRAUSE, et al.,

; 3 Respondents.

Brief for Respondents in Opposition to

~ . Petitions for Certiorari eA

Sanrorp Jay Rosen

155 Montgomery Street, Suite 1502

San Francisco, CA 94104

Nicvoras B, Waranorr

5 Necson G. Kart

| Davip ENGDAHL

' Micuae BE. Gevtner ~

Amitai SCHWARTZ

Bruce J. Ennis

Rosert P. Ape —

Ciype Buus.

Attorneys for Respondents

Yi ,

: - :

* ~ a’ . P. 4 4 “

“ie Se :

* . ~~ Ae < *

sont haan, +e oe , ¥ Ri 3 ae ie

- ir eT eu uA “thy : hawes, : np is : a

Seng a ih “# a, we. Seat ce ee re dheus CRP ee Cen oe Ces

mS 4 rhe

ae

a Rae Va ets 225 "a on

Index

Table of Authorities

QUESTIONS PRESENTED

REASONS FOR DENYING THE WRITS

Introduction and Summary .

Il.

IIl.

THERE IS NO CONFLICT AMONG

THE CIRCUITS AND THE COURT

OF APPEALS CORRECTLY APPLIED

SETTLED PRECEDENT IN ORDER-

ING A NEW TRIAL AFTER THE

TRIAL COURT GROSSLY MISHAN-

DLED A JURY INTRUSION.

THIS COURT SHOULD NOT REVIEW

THE EVIDENCE WHEN REASONABLE

MINDS COLLD EASILY DIFFER AS

TO THE LIABILITY OF DEFENDANTS

RHODES AND DEL CORSO . er

THE KILLING AND WOUNDING BY

THE OHIO NATIONAL GUARD OF

UNARMED STUDENTS AT A PEACE-

FUL POLITICAL ASSEMBLY GIVES

RISE TO A CAUSE OF ACTION

UNDER 42 U.S.C. § 1983 .

CONCLUSION . —

21

27

30

ii.

Table of Authorities

Cases

Allee v. Medrano

416 U.S. 802 (1974)

Basista v. Weir,

340 F.2d 74 (3d Cir. 1965) .

Bellows v. Dainack,

555 F.2d 1105 (2d Cir. 1977) .

Brotherhood of Locomotive

Firemen and Enginemen v.

Bangor & Aroostook Railroad Co.

389 U.S. 327 (1967) 8

Carter v. Carlson,

447 F.2d 358 (D.C.Cir. 1971),

rev'd on other grds., sub nom

District of Col a v. Carter,

409 U.S. 418 (1973) a «

Clark v. Ziedonis,

513 F.2d 79 (7th Cir. 1975)

Cole v. = *

252 U.S. 286 (1919)

Comstock v. Group of

Institutional Investors,

335 U.S. 211 (1948)

Dandridge v. Williams,

397 U.S. 471 (1970)

Fluke v. Canton,

31 Okla. 718, 123 P. 1049 (1912)

. =

—

iii.

a

General Talking Pictures Corp.

v. Weston Electric Co.,

304 U.S. 175 (1938)

Gilligan v. Morga

413 5. = (1973)

Hague v. CIO,

307 U.S. 496 (1939)

Hamilton v. Chaffin,

506 F.2d 904 (5th Cir. 1975)

Hamilton-Brown Shoe Co. v.

Wolf Brothers & Co.,

240 U.S. 251 (1916)

Houston Oil Co. of Texas

v. Goodrich,

245 U.S. 440 (1918)

Imbler v. Pachtman,

424 u.S. 409 (1976)

rR v. Wri

430 U.S. 651 (f993)

Jenkins v. Averett,

424 F.2d 1228 (4th Cir. 1970)

Johnson v. Glick,

481 F.2d 1028 (2d Cir.)

cert. denied 414 U.S. 1033 (1973).

Jones v. Marshall,

528 F.2d 132 (2d Cir. 1975)

Keyes v. School District No. l,

413 U.S. 189 (1973)

. 28

. 28,30

. 28

. 30

ae

iv.

Kennedy v. Great Atlantic

& Pacific Tea Co.,

551 F.2d 593 (5th Cir. 1977)

oe v. Green,

U.S. 531 (1931)

MacDonald v. Musick,

425 F.2d 373 (9th Cir.),

cert. denied 400 U.S. 852 (1970).

Mares v. United States,

383 F.2d 805 (10th Cir. 1967),

cert. denied 394 U.S. 963 (1969).

Marshall v. United States,

360 U.S. 310 (1959)

Marson v. United States,

203 F.2d 904 (6th Cir. 1953)

Mattox v. United States,

146 U.S. 140 (1892)

Mills v. Electric Autolite ste ied

396 U.S. 375 (1970)

Monroe v. Pape,

365 U.S. 167 (1961)

Morgan v. Labiak,

368 F.2d 338 (10th Cir. 1966)

Neil v. Rigen.

409 U.S. 8 (1972)

O'Shee v. Sta*ford,

122 La. 444, 47 So. 764 (1908)

29

- ae

—

Paramount Film Distributing

Corp.

217 F.

cert.

v. Applebaum,

2d 101 (5th «

denied 349 U.S

Paul v.

424 U.

Powell

395 U.

Remmer

347 U.

Remmer

350 U.

Davis,

S. 693 (1976)

v. McCormack,

S. 486 (1969)

+ di6 (1954) ..17.

ae

. United States ("'Remmer I"),

Vv

S. 227 (1954)

12,17

. United States ("'Remmer II"),

Vv

S. 377 (1956)

Rizzo v. Goce,

423 U.

S. 362 (1976)

Roberts v. Williams,

456 F.2d 819 (5th Cir. 2.

denied 404 U.S. 866 (1971) . . 28

cert.

. 12,13,18

. 24

Rogers v. Missouri Pacific

Railroad Co.,

352 U.

Russ v.

S. 500 (1957)

Ratliff,

538 F.2d 799 (8th Cir. 1976),

cert. denied 97 S.Ct.

Scheuer v. Rhodes,

416 U.

S. 232 (1974)

Scott v. Vandiver,

476 F.2d 238 (4th Cir. 1973) .. —

740 (1977) .. 29

. 23,24,26

Page

Screws v. United States,

Fe eC fare ee ae ee

Southern Pacific v. Klinge,

65 F.2d 85 (10th Cir.),

cert. denied 290 U.S. 657 (1933) .. 17

Stengel v. Belcher,

522 F.2d 438 (6th Cir. 1975)... . 29

Stiles v. Lawrie,

211 F.2d 188 (6th Cir. 1954) .. 17,19

Swarb v. Lennox,

— 2 ee Pe

United States v. American

Railway Express Company,

pg ke 0 5

United States v. Betner,

489 F.2d 116 (5th Cir. 1974) .. 18,19

United States v. Doe,

513 F.2d 709 (lst Cir. 1975) ... . 18

United States v. Dozier,

522 F.2d 224 (2d Cir.),

cert. denied 423 U.S. 1021 (1975) 15,16

United States v. Ferguson,

486 F.2d 968 (6th Cir. 1973) .... 18

United States v. Florea,

541 F.2d 568 (6th Cir. 1976),

cert. denied 430 U.S. 945 (1977) 15,16

United States v. Gay,

522 F.2d 429 (6th Cir. , ) aa

vi.

vii.

United States v. Gersh,

328 F.2d 460 (2d Cir.),

cert. denied 377 U.S. 992

a ia <a es

United States v. Harry Barfield Co

359 F.2d 120 (5th Cir. 1966)

13,14,15

United States v. Johnston,

268 U.S. 220 (1925)

United States v. Pomponio,

517 F.2d 460 (4th Cir.),

cert. denied 423 U.S. 1015 (1975).

United States v. Raines,

362 U.S. 17 (1960)

United States v. Rhodes,

556 F.2d 599 (lst Cir. 1977)

United States v. Williams,

545 F.2d 47 (8th Cir. 1976)

Utah Pie Co. v. Continental

Baking Co.,

386 U.S. 685 (1967)

Wood v. Strickland,

420 U.S. 308 (1975)

Constitutional Provisions

and Statutes

First Amendment,

United States Constitution .

Seventh Amendment,

United States Constitution .

Page

,16,18

ee!

18

17

viii.

Page

Eighth Amendment,

United States Constitution ... . 3,28

Fourteenth Amendment,

United States Constitution ... . 1,29

Federal Employers’ Liability Act,

45 U.S.C. § 51 et seq. ...-+-.-.- 5

Federal Rules of Evidence,

28 U.S.C. Rule 101 et seq. ..... 6

42 U.S.C. § 1983 passim

Other Authorities

Harlan, J., Manning the Dikes,

13 Record of NY CCBA 54I (1958) . 21

Stern, "When to Cross-Appeal or

Cross-Petition--Certainty or

Confusion?",

87 Harv.L.Rev. 763 (1973-1974) ... 4

Vinson, C.J., “Work of the Federal

Courts,"' Address before American

Bar Association, Sept. 7, 1949,

69 S.Ct., v, vi 21

IN THE :

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-1017

JAMES A. RHODES,

Petitioner,

v.

ARTHUR KRAUSE, et al.,

Respondents.

No. 77-1018

SYLVESTER DEL CORSO, et al.,

‘Petitioners,

v.

ARTHUR KRAUSE, et al.,

Respondents.

BRIEF FOR RESPONDENTS IN OPPOSITION

TO PETITIONS FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Be

QUESTIONS PRESENTED

I. SHOULD THIS COURT REVIEW THE DECISION

BELOW, WHICH FOLLOWS THIS COURT'S PRE-

CEDENTS AND IS NOT IN CONFLICT WITH

DECISIONS IN ANY OTHER CIRCUIT, RE-

GARDING REMAND FOR NEW TRIAL BECAUSE

OF THE ACTIONS BY THE TRIAL COURT

AFTER A JUROR WAS THREATENED? .

II. SHOULD THIS COURT REVIEW THE EVIDENCE

AND THE DETERMINATIONS OF THE TWO LOW-

ER COURTS DENYING DEFENDANTS RHODES

AND DEL CORSO DIRECTED VERDICTS?

III. DOES THE KILLING AND WOUNDING OF UN-

ARMED STUDENTS BY NATIONAL GUARDSMEN,

IN THE COURSE OF DISPERSING AN ASSEM-

BLY, GIVE RISE TO A CAUSE OF ACTION

UNDER 42 U.S.C. § 1983?

REASONS FOR DENYING THE WRITS

Introduction and Summary

The respondents, 1/ who were plain-

tiffs below, are the nine wounded students

(or, where appropriate, their parents as

guardians ad litem) and the personal repre-

sentatives of the estates of the four stu-

cents who were killed. They filed their

actions in the United States District Court

for the Northern District of Ohio seeking

compensatory and punitive damages, alleg-

ing deprivations of civil rights under the

Fourteenth Amendment to the United States

Constitution and the Civil Rights Act of

1871, 42 U.S.C. § 1983, and sliastae

1/ Hereinafter, for clarity, respondents will

be called plaintiffs and petitioners will be

called defendants.

3.

pendent claims based upon negligence,

assault and wrongful death. The thirteen

cases were consolidated for trial.

The petitioners, who were defendants

below, are the Ohio National Guardsmen who

fired a thirteen-second fusillade into the

crowd of students; their officers at the

scene; the Adjutant General of the Ohio Na-

tional Guard (Del Corso); and the Governor

of Ohio (Rhodes).

The trial was conducted for nearly fif-

teen weeks, commencing on May 19, 1975, and

continuing until the jury returned its ver-

dicts on August 27, 1975. After | of

judgments on the jury verdicts for all the

defendants, plaintiffs appealed. Plaintiffs

argued that (1) the jury verdicts on the

claims for wrongful woundings and killings

were wuounneseel by substantial evidence;

(2) the evidence on the First Amendment

claims required a directed verdict for

plaintiffs; (3) the jury verdicts were

tainted by intrusions on the jury that were -

impt@pe rly handled by the district court;

(4) prejudicial errors in the jury charge

required reversal; and (5) erroneous rulings

> ~ severely prejudiced the plain-

tiffs.

The Court of Appeals for the Sixth Cir-

cuit reversed and remanded for a new trial

because of the trial judge's improper han-

dling of a jury intrusion. In a separate

concurring opinion, Judge Edwards stated he

would reverse in addition because some of

the trial judge's actions themselves consti-

tuted a prejudicial jury intrusion. Peti-

tioners' Joint Appendix at A 33 to A 35. 2/

2/ Hereinafter cited as "PJA at A."

a.

Plaintiffs' First Amendment and Eighth

Amendment claims were ordered dismissed by

the Court of Appeals. The Court of Appeals

also held that neither the plaintiffs nor

the defendants were entitled to a directed

verdict on the due process and pendent

state claims. PJA at A 19. The Court of

Appeals also explicitly stated that plain-

tiffs’ other contentions concerning jury

charge and trial errors would not be dealt

with in detail but only as necessary to

avoid error at another trial. PJA at A 3,

A 17 and A 19.

After a majority of the Court of

Appeals denied defendants’ petitions for

rehearing and suggestions of rehearing en

banc, defendants petitioned this Court For

writs of certiorari. Defendant Rhodes (No. 77-

1017) asserts that excessive force does not

constitute a denial of due process under 42

U.S.C. § 1983 and also that he is entitled

to judgment on the record. Defendants Del

Corso, et al. (No. 77-1018), assert that

the Court of Appeals imposed too harsh a

standard on the trial court for dealing with

jury intrusions and that the Sixth Circuit's

decision is in conflict with a Second Cir-

cuit decision dealing with jury intrusions.

Defendant Rhodes joins in this contention.

Defendant Del Corso also asserts that he is

entitled to judgment on the record.

Plaintiffs submit that none of the is-

sues presented by the defendants is suitable

for review by this Court. At present, the

case presents essentially factual questions,

with no recurring unresolved issues of law.

And, on the merits, the defendants are wrong

as to each issue they press. Moreover, even

if the defendants were to prevail on their

4.

issues, they still might not be entitled to

an order affirming the district court's

judgments in their favor.

Furthermore, the case and the issues ;

are not in a proper posture for this Court s

treatment. For example, review of the

defendants' issues at this time would bring

before the Court the numerous other issues

presented by plaintiffs in the Court of

Appeals, and would require this Court to

review the extensive record in this case to

resolve all these issues. Notably, if

certiorari were granted on defendants’ peti-

tions, plaintiffs would be entitled to sup-

port the Court of Appeals judgment remanding

for a new trial by urging any ar nt sup-

porting that judgment that is raised in the

record and was preserved in the wt

Swarb v. Lennox, 405 U.S. 191, 202 (1972)

(White, J. concurring) and 204 n.1 (Douglas,

J. dissenting); Dandridge v. Williams, 397

U.S. 471, 478-36 n.6 OF Mills v. Elec-

tric Autolite Comany . 396 U.S. 375, 381 n.4

: te tates v. Raines, 362 U.S. 1/7,

27 n.7 (1960); Langnes v. Green, 282 U.S.

531, 535-39 (1931); United States v. Ameri-

can Railway Express Company, 265 U.S. 425,

435-36 CISL). See Stern, en to Cross-Appeal

or Cross-Petition -- Cerrainty or Confusion?"

87 Harv.L.Rev. 763 (1973-1974).

In support of the Court of Appeals

judgment, plaintiffs would argue before this

Court that the Court of Appeals erred in

ruling against them on several issues. If .

they are correct on these points, plaintiffs

would still be entitled to a _ =.

These issues include, inter alia, plain-

tiffs' contentions that: (1) There was no

substantial evidence to sustain the jury

5.

verdicts for the claims based upon wrongful

killings and woundings; (2) the trial court

should have granted a directed verdict on

plaintiffs' First Amendment claims and

placed that verdict before the jury in con-

nection with plaintiffs' other claims; (3)

the trial court committed reversible error.

by refusing plaintiffs' motion to dismiss

with prejudice their state law claims, -

thereby causing the trial court to deliver

a prejudicially prolix and incomprehensible

jury charge.

Plaintiffs would also assert before

this Court the numerous other serious issues

they raised in the Court of Appeals, which

that court delined to reach. If plaintiffs

are correct in their arguments on these ad-

ditional issues, they still would be enti-

tled to a new trial. These issues include,

inter alia, numerous incorrect and prejudi-

€ial rulings on evidence that are strikingly

inconsistent with the new Federal Rules of

Evidence. Assuming arguendo that the defen-

dants were to prevail on the issues they

are attempting to bring before this Court,

and the Court agreed with the Court of

Appeals on each of the other issues that

court decided against the plaintiffs, this

Court would then either address plaintiffs’

unresolved questions or it would remand to

the Court of Appeals with directions that it

decide those issues. Powell v. McCormack,

395 U.S. 486, 500 n.16 ; Uta e .

v. Continental Baking Co., 386 U.S. 685, 704

(1967). If they were to prevail on any of

these issues, the plaintiffs would still be

entitled to a remand for a new trial.

Moreover, if defendants were to prevail

in this Court only on the jury intrusion is-

sue, it is most probable that the case would

still have to be remanded to the district

6.

court for evidentiary proceedings on that

issue. See Del Corso Pet. No. 77-1018 at

p. 14. A new trial might still be ordered

and further appellate proceedings certainly

would occur. Thus, in effect, the defen-

dants seek interlocutory review of the case.

This Court has rarely granted a writ

of certiorari to review a reversal by a

court of appeals for abuse of discretion,

where the court of appeals also remanded for

new trial. This is true partly because of

the necessity to preserve this Court's

resources when a lower court may dispose of

a case or issue. See Brotherhood of Loco-

motive Firemen and Enginemen v. Bangor &

Aroostook Railroad Co., 389 U.S 329 (1967

(case unripe because of remand order on

major issue); Hamilton-Brown Shoe Co. v.

Wolf Brothers

(1916) (certiorari originally denied be-

_cause of remand).

Research by plaintiffs" counsel reveals

that virtually all of the cases in which this

Court has granted a writ of certiorari after

a court of appeals has reversed for abuse of

discretion and remanded for new trial, have

involved the peculiar problems of the role

of the jury as factfinder under the Seventh

Amendment, often in the Federal Employers'

Liability Act context. This Court has ex-

plained its extraordinary review of such

cases:

Special and important reasons for

the grant of certiorari in these

cases are certainly present when

lower federal and state courts per-

sistently deprive litigants of their

iP

right to a jury determination.

Rogers v. Missouri Pacific Railroad Co.,

355 U.S. 500, 510 (1957). The case at bar

does not present the problems which arise

in such litigation. The Court of Appeals

action in the instant case evinces no dis-

respect for the jury. Indeed, remand for

a new trial is necessary in this case to

assure fair jury determinations.

The Court of Appeals remand for new

trial as a result of the District Court's

improper handling of the jury intrusion

raises no important issue for this Court's

determination. Settled law was followed.

Moreover, there is no conflict with the

Second Circuit decision cited by defendants,

which is inapposite on its facts.

Defendants Rhodes' and Del Corso's

requests for review of the denial of dir-

ected verdicts to them presents a factual

matter with no importance except to the

parties involved. Two lower courts have

reviewed the record and each of them has

concluded that there is sufficient evidence

to go to the jury. The legal issues in-

volved have been clearly resolved by numer-

ous decisions of this Court, which were

properly followed by the lower courts.

Notably, the standard governing executive

immunity from Section 1983 liability has

already been fashioned.

Defendant Rhodes' question of whether

excessive force gives rise to a Section 1983

claim, presents a frivolous issue. There is

no inconsistency with the decisions of this

Court; this Court has concluded, and all

circuit courts which have passed upon the

8.

issue have held, that excessive force gives

rise to a claim under Section 1983.

Plaintiffs submit that the case should

be remanded immediately for retrial on the

relatively narrow issues now framed by the

Court of Appeals, centering around the ques-

tion "whether excessive force was employed"

under the conditions that pertained on May

4, 1970. PJA at A 20.

FF

THERE IS NO CONFLICT AMONG THE

CIRCUITS AND THE COURT OF APPEALS

CORRECTLY APPLIED SETTLED PRECEDENT

IN ORDERING A NEW TRIAL AFTER THE

TRIAL COURT GROSSLY MISHANDLED A

JURY INTRUSION. 7

Defendants argue that the decision of

the Court of Appeals to reverse for abuse

of discretion and remand for new trial is

inconsistent with this Court's decisions and

in conflict with a decision by the Court of

Appeals for the Second Circuit. This simply

is not so.

On August 20, 1975, after more than

thirteen weeks of trial, the trial judge

called counsel to his chambers and announced

that:

[A]t least one of the jurors has

been approached on several occasions

and threatened and actually physical-

ly assaulted in connection with the

threats; threats have been made on

his family, if he doesn't bring in

9.

a verdict in a certain way.

TR. 11,887. 3/ Counsel for plaintiffs asked

for interrogation of the juror by the trial

court. Tr. 11,893, PJA at A 23; TR 11,898-

11,899, PJA at A 24. The trial judge brushed

the request aside, indicating that the juror

in question could be replaced by an alter-

nate. Tr. 11,896; TR 11,902, PJA at A 23.

His major concern was protection for the

rest of the jury, which could be provided

only by sequestration for the balance of the

trial and deliberations. TR. 11,888-11,889,

PJA at A 21-A 22; TR. 11,899, PJA at A 24;

TR. 11,902-11,903, PJA at A 26; TR. 11,907,

PJA at A 27.

No counsel objected to the in-chambers

proceeding. All accepted the facts to be

true as reported by the United States Mar-

shal, who had interviewed the juror, and

United States Attorney: that the juror had

been approached on several occasions, threat-

ened and physically assaulted, and threatened

with harm to his family if he did not bring

in a specified verdict (TR. 11,887); that

there were three approaches to the juror,

including one in which the juror was grabbed

and pushed back against a wall and warnéd

that he better not find the verdict the wrong

way (TR. 11,891); that the threats included

a threat to the life of the juror and a

threat to blow up his house (TR. 11,898);

that one approach occurred in the area of

the Courthouse itself, and there was a wit-

ness to the actual (TR. 11,903-11,904); and

that the Marshal's office had placed the

juror under guard and the FBI was commenc-

ing an investigation (TR. 11,887).

3/ "TR. " citations refer to the Trial

Transcript.

10.

The trial judge decided to sequester

the jury as soon as they had an opportunity

to go home and pack. Over plaintiffs

counsel's vigorous objections (TR. 11,909-

11,910, PJA at A 28-A 29; TR 11,912, PJA at

A 29-A 30; TR 11,922, PJA at A 33), the

trial judge resolved to inform the rest of

the jury about the threats in order to ex-

plain the reason for the "eleventh-hour

sequestration (TR. 11,907, PJA at A 27; TR.

11,916, PJA at A 30). He also decided to

replace the threatened juror with an alter-

nate when the jury retired for deliberation.

TR. 11,916-11,919, PJA at A 30-A 31. After

the charge to the jury had been read, the

judge changed his mind and allowed the juror

to deliberate on the case. TR. 12,519-

12,520.

The trial judge never spoke with the

threatened juror (TR. 11,897, PJA at A 23),

nor did he poll the rest of the jury panel

to learn whether they had heard of the

threats or had been threatened themselves.

Instead, the tria! oe ordered all par-

ties and observers to leave the courtroom.

Then, with only the jurors, counsel and the

court reporter present, the judge left the

bench and stood before the jury box (where

he could speak more softly so as not to be

heard outside the courtroom) and delivered

a chilling speech to the jury, which was

itself a substantial and unduly frightening

intrusion upon the entire jury. TR. 11,931-

11,947.

The full text of this speech is re-

printed in the concurring opinion of Judge

Edwards below. PJA at A 33-A 35. Init,

the trial judge recited as an established

fact that the life of one of the jurors had

been threatened in an attempt to influence

ll.

the verdict. As to the rest of the jurors,

therefore, it was immaterial whether any

such threat had actually occurred; they were

told by the judge that the threats had in

fact occurred. The judge stated that he

personally was "much troubled and disturbed"

by knowledge of the threats. He declared

that on past occasions he had ignored such

threats, and as a result he had "blood on

[his] hands."' (He had previously told all °

counsel that there was at least one person

dead as a result of his failure to take such

a threat seriously in the past. TR. 11,898,

PJA at A 24.) He explained that the pro-

blems could not be solved merely by dis-

charging the single juror known to have

been threatened because others among the

jurors might have been threatened, too.

He explained he was going to give the

threatened juror around-the-clock protec-

tion, but that he could not give the rest

of the jurors that kind of protection, in

spite of the gravity of the peril. There-

fore, although he had never before sequest-

ered a jury, he was sequestering this jury.

After this terrifying speech, one of

the alternate jurors inquired of the judge

about protection for that juror's family, and

the judge replied that all he could do was

provide a telephone number which a threatened

family member might call. TR. 11,942-11,943.

At the same time, the judge told the jurors

that the alternates were like life insurance,

essential in the event one of the other jur-

ors met his or her demise. TR. 11,944-11,945.

Both the second intrusion, actually

initiated by the trial judge and affecting

the entire jury, and the first intrusion,

the threats to the single juror, were

12.

referred to in the majority opinion of the

Court of Appeals. PJA at A 4. The obvious

prejudicial impact of the second intrusion

was relied upon by Judge Edwards in his con-

curring opinion as an independent ground of

decision. PJA at A 33-A 35.

The facts of the first intrusion were

established to the satisfaction of the tri-

al judge and all counsel at the proceeding

in chambers, which defendants themselves,

at page 13 of the Del Corso Petition (No.

77-1018) characterize as a "hearing." Fur-

ther, defendants submitted in their Peti-

tions for Rehearing and Suggestions for

Rehearing en banc in the Sixth Circuit that

"the facts surrounding the threat [were]

fully disclosed to the trial court and coun-

sel for all parties....'"' Defendants-Appel-

lees’ Petition for Rehearing in Sixth Cir-

cuit at 17. The facts of the second intru-

sion, that of the trial judge, are matters

of transcribed record in this case.

Thus, this case is different from

Remmer v. United States, 347 U.S. 227

(1954) (hereinafter “Remmer I"). Defendants

incorrectly rely upon Remmer I and Remmer

v. United States, 350 U.S. 377 (1956 ere-

inafter “Remmer II"). In Remmer I, this

Court did remand to the district court for

further proceedings as to the facts of the

alleged jury intrusion, but that was only

because the facts of the intrusion were not

in the record. 347 U.S. at 229. In Remmer

Il, after the trial judge had ascertained

the facts and had made his own judgment that

the intrusion was harmless, this Court re-

viewed the factual record, reversed the

trial court's judgment of harmlessness, and

ordered a new trial. 350 U.S. at 380-82.

13.

Remmer II is akin, therefore, to the instant

case.

Similarly, the defendants incorrectly

argue that there is a conflict between the

Sixth Circuit's decision in the instant

case and a decision of the United States

Court of Appeals for the Second Circuit,

United States v. Gersh, 328 F.2d 460 (2d

Cir.), cert. denied 377 U.S. 992 (1964).

Del Corso, et al., Petition (No. 77-1018) at

15-18. Defendants assert that in the instant

case the plaintiffs knowingly waived their

right to a recorded interrogation of the

juror in the presence of all counsel. The

defendants then contend that, under Gersh

and two other circuit court decisions, if

plaintiffs in fact waived their right to

such a hearing, they are entitled neither

to an evidentiary hearing nor to a new trial.

Gersh and the two other precedents

cited by the defendants, however, are inap-

posite to the instant case. As the Sixth

Circuit held after careful review of the

record in this case, there was no knowing

waiver by plaintiffs of their right to re-

corded interrogation of the threatened juror

to determine whether he was unaffected by

the threats. PJA at A 10-A1l. Plaintiffs

repeatedly asked for such an interrogation

and then reasonably relied upon the trial

judge's declaration that he was going to

excuse the threatened juror. PJA at A 3-A 4.

As soon as they were informed of the

possibility that the juror had been preju-

diced, plaintiffs took all steps required

of them to request protective measures

short of a mistrial or a new trial. These

included requests for recorded interrogation

Se ee Se

14.

of the threatened juror by the judge, pol-

ling of all jurors in the event the judge

informed them of the threats, and excusal of

the threatened juror, as well as objection

to the trial court's informing the jury of

the reasons why they were being sequestered.

PJA at A 4-A 5, A 24, A 28-A 30; TR. 11,893;

TR. 11,898-11,899; TR. 11,909; TR. 11,910-11,913.

In contrast to the instant case, in

Gersh, the defendants were first informed

of the possibility that a juror was preju-

diced immediately after the jury delivered

its verdicts and was excused. The defen-

dants' attorney took no action at that time.

Five and one-half weeks later, at sentencing,

he did not move for further proceedings by

way of recorded interrogation of the juror

in question and polling of the other jurors,

which the Second Circuit concluded “would

still have been entirely practicable." -328

F.2d at 464. He moved only for a new trial

on the ground that a voir dire should have

been conducted of the juror in question be-

fore the case went to the jury. Waiver

certainly could be inferred from those cir-

cumstances. But, as the record demonstrates

and the Court of Appeals held, in the in-

stant case, plaintiffs did not waive their

procedural rights; they asserted them at

the earliest possible opportunity. And,

it is not now "practicable" to conduct the

necessary recorded interrogation of the

jurors.

In addition, the known facts of the

presumed jury intrusion in the Gersh case

are not nearly so compelling as those in the

instant case. Threats and an assault, dir-

ectly linked to the outcome of the case,

occurred in the instant case. The alleged

15.

intrusion in Gersh involved uncompleted anon-

ymous telephone calls to the forelady. On

these sparse facts, so very different from

— in the instant case, the Second Circuit

e :

Something more than the mere fact of

an unknown and uncompleted contact

with a juror is needed to call for

vacating a judgment of conviction to

permit a hearing which the appellants

have not sought.

328 F.2d at 464.

United States v. Dozier, 522 F.2d 224

(2d Cir.), cert. denied 423 U.S. 1021 (1975)

is also inapposite to the instant case. It

involved no issue of jury intrusion, only an

issue of juror competence because of religious

Scruples to pass judgment. Even on that

issue, the proven and uncontested facts demon-

Strated the competence of the juror in ques-

tion. Further proceedings would have been

redundant.

United States v. Florea, 541 F.2d 568

(6th Cir. 1976), cert. denied 430 U.S. 945

(1977), is also inapposite. This case invol-

ved two possible jury intrusions.

The first alleged intrusion involved the

agreed-upon presence of one of sixteen pro-

secution witnesses at the replaying to the

jury of a taperecording that was in evidence.

"After a review of all the evidence, [the

Court of Appeals] conclude[d on the merits]

that appellants were not deprived of a fair

trial." 541 F.2d at 572. Even though it

affirmed the convictions before it in that

case, the court of appeals announced a per

‘ eee

Ae ORNS 1 aera eum eee oP IPE A owes

16.

se rule prohibiting any such contact in fu-

ture cases.

The second intrusion in the Florea

case involved an attempt to bribe a juror.

Without informing the parties or their

attorneys:

The judge summoned a court repor-

ter to transcribe the juror's state-

ment as well as the judge's decision

to (1) excuse Juror Number One and

replace him with an alternate juror;

(2) immediately sequester the jury;

(3) not disclose tothe parties the

reason for the discharge; and (4)

direct the FBI to undertake a full

investigation.

541 F.2d at 572. Reviewing this record,

which disclosed all the salwvent facts of

prejudice, the court of appeals was able to

make a decision on the merits of the ques-

tion of actual prejudice and "conclude[d]

that under the circumstances of this case,

appellants were not prejudiced because they

were absent when the district judge excused

Juror Number One, substituted an alternate,

and sequestered the jury." 541 F.2d at

573.

In the instant case, no evidence was

available to rebut the clear presumption of

prejudice arising from the first jury intru-

sion, nor did the trial judge act to mini-

mize the prejudicial impact. Reliable evi-

dence cannot now be developed to rebut the

presumption of prejudice, well over two

years after the events.

Gersh, Dozier and Florea are different

17.

from the instant case in yet another strik-

ing respect. In treating the alleged jury

intrusions, not one of the other trial judges

himself intruded upon the jury. In the in-

stant case, the trial judge delivered his

chilling speech which, as Judge Edwards ob-

—— itself “simply went too far." PJA

at ;

On the uncontested facts in this case,

the Sixth Circuit's decision was so clearly

correct under controlling legal standards

that review by this Court is not called for.

For example, it is well settled that:

Private communications, possibly pre-

judicial, between jurors and third

persons...are absolutely forbidden,

and invalidate the verdict, at least

unless their harmlessness is made to

appear.

Mattox v. United States, 146 U.S. 140, 150

(1592). As the Sixth Circuit held (PJA at

A 6), this rule that an improper jury intru-

sion is presumptively prejudicial is applied

in civil as well as criminal cases, as

indeed the Seventh Amendment mandates. E.¢.

Kennedy v. Great Atlantic & Pacific Tea 2

‘ t .. : te tates

v. Harry Barfield Co., 359 F.2d 120, 124 (5th

Cir. 1966); Paramount Film Distributing Corp.

v. Applebaum, 217 F.2d I0l (Sth Cir.), cert.

Sented 349 U.S. 961 (1954); Stiles v. Lawrie,

ZIT F.2d 188 (6th Cir. 1954); Southern Paci-

fic Co. v. Klinge, 65 F.2d 85 (10th Cir.),

cert. denied 290 U.S. 657 (1933). To over-

come this presumption, the party seeking to

avoid a new trial must demonstrate persua-

sively that the intrusion could not be harn-

ful. See Remmer I, supra, 347 U.S. at 229;

Oe ON a es Bw et ee -

oe oe

> Me bee

18.

United States v. Williams, 545 F.2d 47, 5l

(th cir. 1976); United States v. Doe, 513

F.2d 709, 711 (lst 7. ; te

States v. Gersh, 328 F.2d 460, 464 (2d Cir.),

cert. denied 377 U.S. 992 (1964).

When a court of appeals determines there

is a possible prejudicial impact from a jury

intrusion, remand for new trial is appropri-

ate. Remmer II, supra; Marshall v. United

States, 300 U.S. 1959). See United

— , 489 F.2d 116 (Oth Cir. 1974);

Vv , 486 F.2d 968 (6th

Cir. 1973).

No affirmative evidence has been pre-

sented, nor could it be, in the instant case,

that the two jury intrusions were harmless.

As the Court of Appeals held (PJA at A 12), re-

mand now for the taking of evidence on that

question would be pointless.

The first jury intrusion must now be

taken to be prejudicial as a matter of law.

Too much time has passed for the defendants

to rebut the presumption of prejudice. The

trial judge, having held a hearing and found

that there had been a jury intrusion, never

questioned the threatened juror or the other

jurors as to whether they were prejudiced in

fact, although asked to do so. PJA at A 3-

A 4. See United States v. Pompanio, 517 F.2d

460 (4th Cir.), cert. denied 423 U.S. 1015

(1975) (failure to poll jury, new trial or-

dered). He also went back on his initial

decision to excuse the threatened juror. PJA

at A 4-A 5.

The Court of Appeals stated that it had

considered ordering a remand for the trial

court to take evidence on the question of

whether the jury intrusion was harmless.

a

19,

Recognizing that more than two years had

passed since the incidents in question had

occurred, the Court of Appeals correctly

held:

Even if questioning the jurors

were permitted on the issue of whe-

ther the verdict was affected by the.

incidents, considering the problem

of fading memories and natural reluc-

tance of a juror to admit that he had

been improperly influenced, we believe

it would be impossible now for either

the district judge or this court to

conclude that the threat and assault

disclosed by this record were harmless.

Cf. Stiles v. Lawrie, supra, 211 F.2d

at 190.

PJA at A 12.

Recent decisions by courts of appeals

in three other circuits have also held that

the passage of time and dimming memories re-

quires new trials rather than remands for

evidentiary hearings on the question of pre-

judice in jury intrusion cases. United

States v. Rhodes, 556 F.2d 599 (lst Cir.

1977); United States v. Betner, 489 F.2d 116

(5th Cir. 1974); Mares v. United States, 383

F.2d 805 (10th Cir. 1967), cert. denied 394

U.S. 963 (1969).

A new trial is especially required in

the instant case because of the second jury

intrusion, the trial judge's terrifying

speech. As Judge Edwards would have held,

that jury intrusion was prejudicial as a

matter of law. PJA at A 33-A 35. Every

reported case of such improper intrusion by

a judge in the jury process has resulted in

OR ee AEE) He OURS ate

20.

an order remanding for new trial. See

Kennedy v. Great Atlantic & Pacific Tea

Co 551 F.2d 59 F. 3 (th Cir. 1977); United

States v. Gay, 522 F.2d 429, 435 (6th Cir.

1975); Marson v. United States, 203 F.2d

904 (6th Cir. 1953).

,

21.

II.

THIS COURT SHOULD NOT REVIEW THE EVI-

DENCE WHEN REASONABLE MINDS COULD

EASILY DIFFER AS TO THE LIABILITY OF

DEFENDANTS RHODES AND DEL CORSO.

Defendants assert that defendant

Rhodes is entitled to judgment on the reéc-

ord, and that defendant Del Corso also may

not be held liable because on the record

he can properly avail himself of "quali-

fied immunity." The question before this

Court is whether the decisions of two

courts denying directed verdicts to defen-

dants Rhodes and Del Corso (TR. 10,162-

10,163; TR. 1,172-10,173; PTA at A 19)

should be reviewed and overturned. In es-

sence these defendants submit to this

Court issues of fact, i.e., whether there

is sufficient evidence of their liability

to require a jury determination.

As the Court has stated many times:

"We do not grant a certiorari to review

evidence and discuss specific facts."

United States v. Johnston, 268 U.S. 220,

Accord, General Talking Pic-

Co. 308

tures Corp. v. Western Electric ,

U.S. 175, 178 (1938); Houston 011 Co. of

Texas v. Goodrich, 245 U.S. ‘

This is generally so even if it appears the

decision below is erroneous. See, e.2.,

"Work of the Federal Courts," address of

Chief Justice Vinson before American Bar

Association, Sept. 7, 1949, 69 S.Ct. v,vi;

Mr. Justice Harlan, Manning the Dikes,

13 Record of N.Y.C.B.A. sit 551 (1958).

This Court's practice of avoiding

review of facts is buttressed by the so-

ee ee eee ee

BEF) me wee mance Se nat ale © aha Cee aoe

22.

called "two-court" rule. "A seasoned

and wise rule of this Court makes concur-

rent findings of two courts below final

here in the absence of very exceptional

showing of error."' Comstock v. Group of

Institutional Investors, 335 U.S. TLL

214 (1948). See also Keyes v. School Dis-

trict No. 1, 413 U.S. ; n.

and at 264 (Rehnquist, J. dissenting) ;

Neil v. Biggers, 409 U.S. 188, 193 n.3

(1972) and at 203-204 (Brennan, Douglas,

Stewart, J. J., concurring in part and dis-

senting in part.). This rule rests not only

upon deference to the trier of fact, but

upon consideration of judicial economy. It

applies to fact findings made in response

to motions for directed verdicts. See

Cole v. Ralph, 252 U.S. 286, 302 (1919).

In the instant case, the trial judge

denied directed verdicts to defendants

Rhodes and Del Corso. TR. 11,162-11,163;

TR. 11,172-11,173. In passing upon the

defendants' motions for directed verdicts,

the district court found regarding

Rhodes’ that:

I have studied the record of this

case, and I have studied the law

and I have tried to figure out what

the Supreme Court means in its de-

cisions, and I have come to the con-

clusion that the evidence in this

case does present a question of fact

which must be submitted to the jury

with respect to the liability of the

Defendant Governor Rhodes.

TR. 10,162-10,163. Regarding Del Corso

the District Court found that:

Se

a3.

I have been spending several hours

each dav for the past several weeks

reviewing the law and reviewing the

facts. . . . And I think there are

questions that the jury has to answer

as I read the record in this case.

TR. 10,172-10,173.

On appeal, the Court of Appeals re-

viewed the record and concurred with the

District Court, holding that: "Neither the

‘plaintiffs nor the defendants were en-

titled to a directed verdict on the due

process and pendent state claims. Jury

issues were presented...."" PJA at A 19. Fur-

thermore, the defendants, in their request

for rehearing and suggestion for rehearing en

banc, explicitly asserted that defendant

Rhodes was entitled to judgment on the record,

>but a majority of the Court of Appeals denied

rehearing, concluding that the issues raised

.therein were fully considered upon submission

and decision of the case. PJA at A 36.

In denying directed verdicts, the Dis-

trict Court and the Court of Appeals each

properly applied the standard for official

immunity established in Scheuer v. Rhodes,

416 U.S. 232 (1974), as did the District

Court in its instructions to the jury.

TR. 12,480-12,482. Just as this Court said

in Imbler v. Pachtman, 424 U.S. 409, 419

n.13 (1976):

The fate of an official with quali-

fied immunity depends upon the cir-

cumstances and motivations of his ac-

tions, as established by the evidence

at trial. (Citations omitted.)

—s.*

ee ee ee Et a ieee nee em ate

Po nd ee

_— ae OP ew ee ee ee ee

24.

With the case in this posture, defen-

dants Rhodes and Del Corso can only be

asking this Court to review the facts of

the case and determine whether the Court

of Appeals' decision regarding the weight

of the evidence on the due process and

pendent state claims was in error. Since

the law on this subject is well established,

this factual matter is of no importance ex-

cept to the parties.

Defendants Rhodes and Del Corso are

liable under Section 1983 because they

made various decisions and took various ac-

tions which were intentional, wanton, reck-

less or negligent. These decisions and

actions were taken with full knowledge of

the violation of constitutional rights

which would be caused thereby. These de-

cisions and actions were directly and

immediately within and affected the chain

of causation leading to the actual denials

of constitutional rights. Cf. e.g., Rizzo

v. Goode, 423 U.S. 362, 373-376 76);

Allee v. Medrano, 416 U.S. 802 (1974);

Hague v. C.I.0., 307 U.S. 496 (1939).

For example reviewing the record in

light of this Court's decisions in Gilli-

gan v. Morgan, 413 U.S. 1 (1973) and

cheuer v. odes, 416 U.S. 232, 249 (1974),

the Court of Appeals correctly held that

the record presented a justiciable contro-

versy regarding the Ohio National Guard's

"training, weaponry and orders...." to be

decided by the jury. PJA at A17-A 18.

Defendant Del Corso, as Ohio's Adjutant

General, and defendant Rhodes; as Ohio's

Governor and the commander-in-chief of

the Ohio National Guard, promulgated and/

+

or were responsible for the Guard's

“training, weaponry and orders."

Considerable other evidence in the

record causally links these two defendants

to the tragic events of May 4, 1970.

Defendant Del Corso is the Adjutant

General of the Ohio National Guard. 4/ ‘He

was present in Kent on May 2nd and 3rd,

1970. He prepared the Ohio Rules of En-

gagement, which deal with the use of load-

ed military weapons in civil disturbances.

He was in charge of training, equipping

and controlling the Guard. He joined in

the decision to ban all assemblies, peace-

ful or otherwise. TR. 7,959-7,960; TR.

8,820-8,821; TR. 8,825-8,826; TR. 7,136;

TR. 7, 968; TR. 8,089.

Defendant Rhodes is the commander-in-

chief of the Ohio National Guard. He was

present in Kent on May 3rd. He knew of

the Ohio Rules of Engagement and the

problem of overpowered weapons. He in-

flamed and incited the Guard to resort to

unnecessary force on the Kent State campus.

He took control of the campus in the face

of his admitted lack of authority to do so,

and then failed to exercise control over

the Guard on campus. He promulgated the

4/ Contrary to Defendants' contention at p. 19

of the Del Corso Petition (No. 77-1018) there

are other cases in which an Adjutant General's

liability has been submitted to a jury for de-

termination, and liability was found. O'Shee

v. Stafford, 122 La. 444, 47 So. 764 (1908).

Cf. Fluke v. Canton, 31 Okla. 718, 123 P. 1049

(1912) (dictum).

26.

ban on all assemblies, saying at a meeting

on May 3rd, "I don't want to see any two

students walking together." TR. 7,962; TR.

7,975-7,976; TR. 7,983-7,984; TR. 7,998-

8,000; TR. 7,390; TR. 7,430; TR. 8,458;

TR. 8,948-8,949; TR. 8,977-8,978;

TR. 9,006-9,007; TR. 9015; TR. 8,884; Crt.

Exh. #2; TR. 8,883.

A jury certainly could find that, in-

dividually and together, all these decis-

ions and actions proximately caused the

woundings and killings of students at Kent

State without due process of law, as well

as the violation of their First and Eighth

Amendment rights. Defendants Del Corso

and Rhodes cannot avail themselves of. qual-

ified immunity to take the issue of their

liability away from the jury. Their ac-

tions illustrate their abuse of discretion

and bad faith; they knew of the danger to

life and First Amendment rights, yet they

made no attempt to allay the danger.

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

Wood v. Strickland, 420 U.S. 308 (1975).

It was not clearly erroneous for the

two lower courts to have concluded that

reasonable minds could easily differ as to

defendants Rhodes's and Del Corso's lia-

bility based on the evidence. Therefore,

this Court should not review the concurrent

conclusions of two courts that directed

verdicts for defendants Rhodes and Del

Corso are not justified.

27.

Ill.

THE KILLING AND WOUNDING BY THE OHIO

NATIONAL GUARD OF UNARMED STUDENTS AT

A PEACEFUL POLITICAL ASSEMBLY GIVES

RISE TO A CAUSE OF ACTION UNDER

42 U.S.C. § 1983.

Defendant Rhodes argues that this

Court should decide that excessive force

does not constitute a denial of due process

remediable under 42 U.S.C. § 1983. Defen-

dant Rhodes seems to assert that the Court

of Appeals should have dismissed the entire

action, and by not doing so, the Court of

Appeals has decided important questions in

a manner inconsistent with the decisions

of this Court.

This is a frivolous issue, never be-

fore raised by defendants. No decisions of

this Court were contradicted by the decis-

ion of the Court of Appeals. It is impos-

sible to imagine a case wherein a cause of

action under Section 1983 would be more

appropriate than the one at bar. As defen-

dant Rhodes states at p. 15 of his Petit-

ion (No. 77-1017), "We of course do not

contend that the Due Process Clause is

implicated only when a state deprives a

person — life, liberty or property in the

course of punishing that person -- the

reach of chat Clause is much broader."

Indeed, it is easily broad enough to reach

the situation in this case. Defendant

Rhodes's Petition's statement of facts left

out of its denouement the fact that four

students were killed by the 13-second fusi-

llade and nine were wounded. These in-

juries give rise to the “excessive force"

component of plaintiffs' claims. The Court

ee ee

28.

of Appeals reduced the Section 1983 claim

to the denial of due process theory; plain-

tiffs continue to urge in support of

their Section 1983 claims the additional

theories that both their First and Eighth

Amendment rights were also violated. 3/

As defendants must know, their con-

tention that excessive force cannot be the

basis of a claim under Section 1983 is

frivolous. The tremendous weight of auth-

ority demonstrates that excessive force

can be the basis for an action under

Section 1983. The use of unreasonable or ex-

cessive force by a state official acting

under color of state law has been held to

provide the basis for a Section 1983 claim

in ten of the eleven circuits, every cir-

cuit that has passed upon the issue. Car-

ter v. Carlson, 447 F.2d 358, 361 (D.6G.

Cir. 1971), rev'd on other grounds, sub nom

District of Columbia v. Carter, 409 U’S.

; Johnson v. Glick, 481 F.2d

1028 (2d Cir.), cert. denied 414 U.S. 1033

(1973); Basista v. Weir, 340 F.2d 74 (3d

Cir. 1965); Scott v. Vandiver, 476 F.2d

238 (4th Cir. 1973); Jenkins v. Averett,

424 F.2d 1228 (4th Cir. 1970); Hamilton v.

Chaffin, 506 F.2d 904 (5th Cir. 1975);

Roberts v. Williams, 456 F.2d 819 (5th

Cir.), cert. denied 404 U.S. 866 (1971);

_5/ Plaintiffs agree with defendant Rhodes, at

p. 16 of his Petition, that Ingraham v.

Wright, 430 U.S. 651 (1977) does not control

this case, but for a different reason. In-

graham is based upon facts too different

from the case at bar to control with regard

to the scope of Eighth Amendment protection.

29.

Stengel v. Belcher, 522 F.2d 438 (6th

Cir. 1975); Clark v. Ziedonis, 513 F.2d

79 (7th Cir. 1975); Russ v. Ratliff, 538

F.2d 799, 804 (8th Cir. 1976), cert. de-

nied 97 S.Ct. 740 (1977); MacDonald v._

Musick, 425 F.2d 373 (9th Cir.), cert.

denied 400 U.S. 852 (1970); Morgan v.

Labiak, 368 F.2d 338 (10th Cir. F566)

This Court has certainly indicated its

agreement. See, Screws v. United States,

325 U.S. 91 (1945).

Defendants have attempted to misread

a recent case in this Court as overruling

the consistent authority on this point.

The dictum quoted at pp. 15-16 in the

Rhodes Petition from Paul v. Davis, 424

U.S. 693 (1976) is inapplicable to the in-

stant case. Paul held, in pertinent part,

that reputation alone does not invoke the

protection of the Due Process Clause, and

thus a claim based on defamation is insuf-

ficient to sustain an action under 42

U.S.C. § 1983 and the Fourteenth Amendment.

In dictum, this Court discussed the limi-

tations on claims under Section 1983, that

the injuries contested must be constitu-

tional in scope. The examples the Court

used to illustrate injuries not cognizable

under Section 1983 were the accidental

shootings of innocent bystanders and neg-

ligently-caused automobile accidents in-

volving law enforcement officers. Plain-

tiffs' claims are not like these; they in-

volve constitutional wrongs based upon in-

tentional or reckless shootings of students

by National Guardsmen. Such shootings,

unlike the examples given in Paul, exhibit

the "misuse of power" or the “raw abuse

of power" that is the underlying concern

of Section 1983. See Monroe v. Pape, 365

ane a ee

30.

U.S. 167 (1961); Jenkins v. Averett, 424

F.2d 1228 (4th Cir. 1970). It is this mis-

use of power, apparent in the use of exces-

sive force, that gives rise to constitu-

tional injury and makes the damage claims

herein appropriate under Section 1983.

Finally, contrary to defendants'

assertions (Rhodes Petition No. 77-1017 at

17.), Jones v. Marshall, 528 F.2d 132 (2d

Cir. 1975), does not create a conflict with

the case at bar. Jones does not hold that

unreasonable force by a police officer does

not give rise to a Section 1983 action.

The court in Jones in fact clearly stated

that excessive force does give rise to a

Section 1983 claim. 528 F.2d at 139. In-

deed, the Second Circuit has recently re-

affirmed its view that excessive force

gives rise to a Section 1983 claim. See

Bellows v. Dainack, 555 F.2d 1105, 1106

n. oe. é

Thus, there is no important question

concerning Section 1983 and the use of ex-

cessive force which should be decided by

this Court.

CONCLUSION

The instant case has been remanded to

the District Court for retrial. The is-

sues raised by defendants for review by

this Court are not important questions of

law which have not been, but ought to be,

decided by this Court. In its present

posture, the case involves essentially fac-

tual questions, and the Court of Appeals

decision was based on trial errors that

constituted abuse of discretion. The

31.

decision of the Court of Appeals was not

inconsistent with any decision of this

Court. There is no conflict among the cir-

cuits on any issue of law raised by the

defendants' petitions. Therefore, all the

Petitions for Writs of Certiorari in this

case should be denied.

Respectfully submitted,

SANFORD JAY ROSEN

ROSEN, REMCHO & HENDERSON

155 Montgomery Street, #1502

San Francisco, CA 94104

Telephone: (415) 433-6830

NICHOLAS B. WARANOFF

JACOBS, SILLS & COBLENTZ

555 California Street

San Francisco, CA 94104

Telephone: (415) 391-4800

NELSON KARL

33 Public Square, Srite 210

Cleveland, OH 44113

Telephone: (216) 241-3646

DAVID ENGDAHL

ENGDAHL & RENZO,P.C.

Symes Building

820 Sixteenth Street, Suite 415

Denver, CO 80202

Telephone: (303) 571-0852

MICHAEL E. GELTNER

Georgetown Univ. Law Center

600 New Jersey Ave., N.W.

Washington, D.C. 20001

Telephone: (202) 624-8297

32.

AMITAI SCHWARTZ

N. Cal. Police Practices Project

814 Mission Street

San Francisco, CA 94103

Telephone: (415) 777-4880

BRUCE J. ENNIS

American Civil Liberties Union

22 East 40th Street

New York, NY 10016

Telephone: (212) 725-1222

ROBERT P. APP

ACLU of Ohio 7

203 East Broad Street, Suite 204

Columbus, OH 43215

Telephone: (614) 228-8952

CLYDE ELLIS

155 South Main Street

Gainesville, FL 32601

Telephone: (904) 376-3297

Attorneys for kespondents

ANDREA L. BIREN

ANN SAYVETZ

ROBERT S. BAKER

of Counsel