Petition — Hall v. United States

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FJ 3 a 5 } 4. woe oe ae US.

N SEP 26 1983

oO.

RLSOOER L. STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

ELIZABETH JANE HALL - : - Petitioner

versus

UNITED STATES OF AMERICA, ET AL. - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EDWIN F. KAGIN

6809 LaGrange Road

P. O. Box 77

Pewee Valley, Kentucky 40056

(502) 241-5554

Counsel for the Petitioner

Of Counsel:

DONALD F. AR). “TRONG, JR.

Suite 114, The 310 Bldg.

Louisville, KY 40202

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-?.0. BOX 3281, LOUISVILLE, KY.

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

ELIZABETH JANE HALL, - - - Petitioner

v.

UnitTep States oF America, Et Al. - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United

States: Elizabeth Jane Hall, the petitioner herein,

prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals

for the Sixth Circuit entered in the above-entitled

case on March 25, 1983.

OPINIONS BELOW

The opinions and orders of the district court (Ap-

pendix A, infra, pp. 1a-16a) are not reported. The

opinion of the Court of Appeals (Appendix B, infra,

pp. 17a-27a) is reported at 704 F. 2d 246 (6th Cir.,

1983).

JURISDICTION

The judgment of the Court of Appeals was entered

on March 25, 1983 (Appendix C, infra, p. 28a). By

order dated July 25, 1983, Mr. Chief Justice Burger

extended the time for filing a petition for a writ of

certiorari to and including September 26, 1983. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

Are the Respondeut officials entitled to absolute im-

munity from actions for damages?

Are the Respondent officials entitled to only a

qualified immunity good faith defense?

Are the Respondent officials required to plead any

qualified immunity defense they may have avail-

able?

Did the District Court abuse its discretion in grant-

ing summary judgment after not allowing the Pe-

titioner an opportunity to discover evidence to

oppose the Motion ?

Did the District Court err when it granted summary

judgment resting on pleadings alone?

Did the Court of Appeals err when they found the

Defendant entitled to qualified immunity ?

Did the Court of Appeals err when they failed to

remand the case back to the District Court with

directions as to the qualified immunity defense?

Did the District Court fail to comply with the Su-

preme Courts directives as to damages?

STATUTES INVOLVED

42 U.S.C. §§ 1981, 1982, 1983, 1985, Constitution of

the United States, Amendments IV, V, [X, and XTV

(Appendix D, infra, pp. 29a-34a).

STATEMENT

This case is a sequel to Laing v. United States sub

nom Hall v. United States, 423 U. S. 161 (1976), in

which the issuance of an injunction against the In-

ternal Revenue Service, by the District Court against

the sale of Plaintiff’s automobile and other personal

property wrongfully levied upon was upheld. Ten

years, and ten Court terms later, Mrs. Hall is still

without relief. The issue now presented to this Hon-

orable Court is whether or not Mrs. Hall may sue the

offending Internal Revenue Service Agents for dam-

ages, whom this Court has previously held had violated

her constitutional and statutory rights. The District

Court and the Court of Appeals for the Sixth Circuit

both have held that Mrs. Hall may not have her day

in court for a jury of her peers to decide whether she

should be made whole for the damages done ten years

before.

In Hall v. United States, 423 U. 8. 161, at 210, foot-

note 14, in dissent, Mr. Justice Blackmun stated, ‘‘I

do not condone abuse in tax collection. The records of

these two cases do not convincingly demonstrate abuse,

although Mrs. Hall’s situation, as it developed after the

initial critical moves by the Service, makes one wonder.

I have no snch concern whatsoever about Mr, Laing.

4

Ih any event, abuse is subject to rectification otherwise,

and the Congress and the courts surely will not be

unsympathetic. Cf. Bivins v. Sic Unknown Fed. Nar-

cotics Agents, 403 U. 8. 388 (1971)”’.

Ten years after Mr. Justice Blackmun opined that

the courts should be open to Mrs. Hall, she has been

unable to take her case before a jury. Petitioner, after

succeeding on her merits for injunctive relief before

this Honorable Court, subsequently attempted to pro-

ceed back in the Distwict Court for damages pursuant

to the provisions as set out in Bivins, supra, and 42

U.S.C. $§ 1983, 1985, and the Constitution of the United

States.

The District Court denied such and hastily granted

all Defendants summary judgment and granted them

absolute immunity.

Petitioner then appealed to the United States Court

of Appeals for the Sixth Circuit, and the decision of

the District Court was overturned by the Sixth Circuit

which found that Respondents were only entitled to

a qualified immunity, but in light of the record the

Court of Appeals found that Respondents had met

that burden. ‘Petitioner still disagreed and believed,

with Mr. Justice Blackmun, that the courts should ‘‘not

be unsympathetic’’.

The Petitioner then appealed to this Court.

(REASONS FOR GRANTING WRIT

This case presents issues that this Honorable Court

must address, in that there is an explicit conflict be-

tween the Circuits, making it impossible to determine

the National stare decisis when similar questions arise.

The lower courts erroneously ruled that there was

not a cause of action stated by Mrs. Hall, failing to

fully recognize the Constitutional causes of action

established by this Court in Bivins, supra and in Davis

v. Passman, 422 U. S. 288 (1979). The lower courts

also failed to appreciate that the officials alleged im-

munity does not under any theory protect them when

they are acting beyond their authority or in violation

of the Constitution. Dugan v. Rank, 372 U. 8. 609,

622 (1963) ; Philadelphia Co. v. Stimsen, 223 U. 8. 605,

619-620 (1912) ; Stark v. Wickard, 321 U. S. 288, 290

(1944) ; Ex parte Young, 209 U. 8. 123 (1908). The

dismissed defendants were dismissed by advancing an

argument plainly foreclosed by decisions of this Court.

Further, there has been a substantial deviation from

rulings of this Court on the qualified immunity, good

faith defense, thereby necessitating the intervention of

this Honorable Court.

Immunity is a defense to the action which must be

pleaded and proved and it is insufficient to say, as the

dismissed Defendants did, that the acts complained of

were within the limits of their authority or in further-

ance of ‘‘matters committed by law to [their] control

or supervision’’. Spalding v. Vilas, 161 U. S. 483, 498

(1896). Their self-serving affidavits and statements

6

are legally insufficient. Howard y. Lyons, 360 U. S.

593, 597-598 (1959).

The lower courts ignored the obvious bad faith of

Defendant Acting Director McHugh, who failed to

issue Mrs. Hall a deficiency notice, when I.R.S. regu-

lations required same to be sent, and when four months

previously, the same I.R.S. service had been enjoined

from identical behavior in Rambo vy. United States,

et al., 353 F. Supp. 1021 (W. D. Ky. 1972).

Further, there currently exists an insurmountable

conflict among the Circuits that can only be resolved

with finality by this Court’s granting, once again, a

Writ of Certiorari to Elizabeth Jane Hall. Ruther-

ford v. United States, 702 F. 2d 580 (5th Cir., 1983),

holds directly contrary to the holding of the Sixth

Circuit in Hall, supra.

We have recently learned that after the decision in

Rutherford, the Federal Ageuts settled the case with

Mr. Rutherford, rather than risk going to trial by jury.

In short, the Government was so wrong, as they are in

Mrs. Hall’s case, that they had relied on the courts to

protect and condone their unlawful acts. There can-

not be one standard for Mr. Rutherford and another

standard for Mrs. Hall.

The Writ should be granted so that District Judges

throughout the United States and it’s territories may

know with certainty the standards to be applied when

similar issues are presented to them.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Epwin F. Kaan

6809 LaGrange Road

P. O. Box 77

Pewee Valley, Kentucky 40056

(502) 241-5554

Counsel for the Petitioner

Of Counsel:

DonaLpD F,. ARMSTRONG, JR.

Suite 114, The 310 Bldg.

Louisville, KY 40202

September 1983

APPENDIX

la

APPENDIX A

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 7571-L(G)

EvizaseTtH Jane Haut, - - -, - = ~~ Plaintiff,

v.

Untrep States or America, etal, - - Defendants.

MEMORANDUM OPINION AND ORDER—

Entered August 5, 1976

On February 1, 1973, the Internal Revenue Service

terminated the 1973 taxable year of the plaintiff and made

a tax assessment against her in the amount of $52,680.25.

Thomas P. McHugh was acting district director on Febru-

ary 1, 1973 and he approved the jeopardy termination.

McHugh’s regular employment was, and remains, chief of

the audit division within the district director’s office in

Louisville, Kentucky.

When the plaintiff was unable to make immediate pay-

ment of the assessment her 1970 Volkswagen automobile

was seized. On March 9, 1973, we entered a preliminary

injunction in the case restraining the defendants from seiz-

ing any of the plaintiff’s property. This decision was af-

1This action was taken because the I.R.S. believed the plaintiff

was involved in illicit drug activities, which would prejudice or

render ineffectual collection of income taxes for the 1973 calendar

year.

2a

firmed by the Sixth Circuit Court of Appeals, 493 F. 2d

1211 (1974), and by the United States Supreme Court,

sub nom Laing v. United States, _. U. 8, —__, 96 S. Ct.

473 (1976).

In plaintiff's complaint she not only sought the afore-

stated injunctive relief but also $20,000.00 in actual dam-

ages and $1,000,000.00 in punitive damages against the de-

fendants. Having fully litigated the injunction issue, the

ease now comes before us on the question of the alleged

personal liability of the defendant McHugh.

Both the plaintiff's and McHugh’s deposition have been

taken. The plaintiff has testified that she does not know

McHugh nor has she ever spoken to him. Importantly,

McHugh’s deposition demonstrates the only role he played

was in approving, upon recommendation, the termination

of plaintiff's taxable year and in levying the tax assess-

ment. McHugh was not in direct contact with the revenue

agent who prepared the assessment nor was he in direct

contact with the officer who seized the plaintiff's automobile.

An affidavit signed by Paul Niederecker, district director

for the Louisville District, states that he appointed Mce-

Hugh as acting district director for January 31, 1973, and

February 1, 1973. One of the duties of the district director,

or in this case the acting district director, is to approve

jeopardy termination pursuant to 26 U.S.C. 6851. Nied-

erecker also stated in his affidavit: “I have reviewed

termination approval and find that the proper procedures

were followed in the case of Jane W. or Elizabeth Jane

Hal. . *

This case is now before us on McHugh’s motion for sum-

mary judgment. He supports this motion on three grounds:

(1) the Court lacks subject matter jurisdiction to entertain

any claim for damages against him; (2) he is protected by

official immunity from the plaintiff's damage claim; and

(3) the complaint fails to state a claim upon which relief

3a

can be granted. We need only consider the first two argu-

ments raised by McHugh.

Plaintiff alleges in her complaint and amended and sup-

plemental complaint that the defendants’ actions violate 42

U.S.C, 1983, 1985 and 1986 and that jurisdiction therefore

rests in this Court under 28 U.S.C. 1343.

Before a defendant can be liable for damages under 42

U.S.C. 1983 it must be shown that the defendant has de-

prived the plaintiff of one or more of his civil rights under

color of state law. In this case, however, McHugh was

acting under color of federal law; therefore, he is not

susceptible to suit under 42 U.S.C. 1983. Bethea v. Reid,

445 F. 2d 1163 (8rd Cir. 1971).

In addition the plaintiff cannot demonstrate the con-

spiratorial actions on the part of McHugh which are neces-

sary to bring this case under 42 U.S.C. 1985; nor ean she

demonstrate that McHugh had knowledge that there were

certain wrongs conspired to be done or about to be com-

mitted against her and that he had the power to prevent

these wrongs and neglected or refused to do so, hence, she

cannot come under 42 U.S.C. 1986. Finally, she cannot

come under the doctrine set forth in Kletschka v. Driver,

411 F. 2d 436 (2d. Cir. 1969). Kletschka stands for the

proposition that where a joint conspiracy between federal

and state officials results in the deprivation of a person’s

civil rights then the federal officials are liable in damages

under 42 U.S.C. 1983 if the state officials played a significant

role in the joint conspiracy.

The plaintiff's downfall under 42 U.S.C. 1985 and the

Kletschka rule is that she has not shown one piece of evi-

dence to connect McHugh with any conspiracy to deprive

her of her civil rights. Similarly, she has failed completely

to demonstrate that McHugh knew that others were con-

spiring to deprive her of her constitutional rights, a fact

she must establish before liability results under Section

1985. Because she cannot demonstrate a violation by Me-

- ak

da

Hugh of either 42 U.S.C. 1983, 1985 or 1986, the Court can-

not take jurisdiction of this case under any subsection in

28 U.S.C, 1343.

The plaintiff's response to the total void of proof in this

case is that she has made the requisite conspiracy allega-

tions in her complaint “and now must be left to her proof.”

Plaintiff’s Brief at 4. Plaintiff forgets, however, that both

her deposition and McHugh’s deposition have been taken

and it is clear from the testimony therein that McHugh was

not personally involved in any conspiracy with state or

other federal officials; and, that if a conspiracy did exist he

had no knowledge of it. In short, McHugh has come for-

ward with these depositions and supported his motion for

summary judgment, therefore, the plaintiff cannot merely

point to her pleadings and demand the Court overrule the

motion for summary judgment. In Bryant v. Common-

wealth, 490 F, 2d 1273, 1275 (6th Cir. 1974) the Court in a

per curiam opinion stated:

(W)here the movant brings forward and supports his

motion for summary judgment, his opponent may not

rest merely upon his pleadings but rather must come

forward to show genuine issues of fact. Mere con-

ciusory and unsupported allegations, rooted in specula-

tion, do not meet that burden.

We believe this case falls squarely upon the above-stated

principle; thus, the Court lacks subject matter jurisdiction

in this case under 28 U.S.C. 1843(1)(2) or (3). Parenthet-

ically, we note that 28 U.S.C. 1343(4) is inapplicable given

the allegations in the plaintiff's complaint.

Plaintiff also alleges that the Court has subjuct matter

jurisdiction in this case under the constitutional tort doc-

trin. announced in Bivens v. Siw Unknown Named Agents

of th Federal Bureau of Narcotics, 403 U. 8. 388 (1971).

The defendant disputes this jurisdictional argument by

5a

contending, yet without citing authority, that Bivens is

limited to Fourth Amendment cases.

There is a substantial dispute between the lower federal

courts as to the proper scope of the Bivens doctrine. Some

courts have held Bivens extends beyond Fourth Amend-

ment cases. Eg. //ry Creek Lodge, Inc. v. United States,

515 F. 21 926, 931-32 (10th Cir. 1975) ; United States ex rel.

Moore v. Koelzer, 457 F. 2d 892, 894 (8rd Cir. 1972);

Howard vy. Warden, Petersburg Reformatory, 348 F. Supp.

1204 (E.D. Va. 1972). Other courts have held that Bivens

is limited to Fourth Amendment cases. Eg. Moro v. Tele-

mundo Incorporado, 387 F. Supp. 920, 924 n. 1 (D.P.R.

1974), Moore v. Schlesinger, 384 F. Supp. 163, 165 (D. Colo.

1974) ; Davidson v. Kane, 337 F. Supp. 922 (E.D. Va. 1972).

See also Jones v. United States, 401 F. Supp. 168, 174-75

(E.D. Ark. 1975).?

We will assume, although we do not decide, that Bivens

does extend beyond the Fourth Amendment and encom-

passes this case. The Court need not decide this jurisdic-

tional issue because we have concluded that even if we do

have subject matter jurisdiction McMugh’s motion for

summary judgment must be sustained. Our basis for this

conclusion is that McHugh was protected by official im-

munity when he acted on ha 1, 1973.

When analyzing whether a federal official’s acts are

protected under the doctrine of official immunity, Barr v.

Matteo, 360 U. S. 564 (1959), is the lodestar. Barr v. Mat-

teo set forth two prongs which must be analyzed to de-

termine whether official immunity applies. Those two test

are: scope of authority and discretionary functions. Biv-

ens v. Sia Unknown Named Agents of the Federal Bureau

2For an extensive list of those cases which have either held that

Bivens is limited to Fourth Amendment cases or extends beyond the

Fourth Amendment, see Panzarella v. Boyle, 406 F. Supp. 787, 792

ns. 6 and 7 (D. R.I. 1975).

6a

of Narcotics, 456 F. 2d 1339, 1343-47 (2d Cir. 1972) (on

remand from 403 U, S. 388).

Under the “scope of authority” prong the Court must

determine what the Supreme Court in Barr v. Matteo meant

when it stated that the act or acts which form the basis

for the lawsuit must be “within the outer perimeter of

[the official’s] line of duty.” 360 U.S. at 575. The Second

Circuit Court of Appeals in Bivens defined this phrase as

follows:

We believe that what is meant by the phrase “within

the outer perimeter of [an official’s] line of duty” is

that the officer must have been acting in his role as a

government officer.

456 F. 2d at 1345.

McHugh’s duties as acting district director included

approving termination assessments against certain tax-

payers. The evidence in this case demonstrates that Mc-

Hugh did approve the termination of the plaintiff’s taxable

year and did approve levying a tax assessment against her

in the amount of $52,680.25. Mr. Niederecker has stated

in his affidavit that the proper procedures were used by

McHugh when he approved the termination assessment.

In short, McHugh was doing precisely what the duties of

his employmeat as acting district director required. Hence,

we hold that when McHugh approved the termination

assessment against Mrs. Hall he was acting “within the

outer perimeter of [his] line of duty.”

After the official makes the aforestated “scope of au-

thority” showing he then proceeds to the second stage of

the analysis, the “discretionary functions” stage. Under

this prong he must demonstrate that the performed “dis-

cretionary acts at those levels of government where the

concept of duty encompases the sound exercise of disere-

tionary authority.” Barr v. Matteo, supra at 575; Bivens,

supra at 1345.

7a

Courts have consistently held that the district director’s

use of jeopardy assessments is within the broad discretion

of his office. Homan Mfg. Co. v. Long, 242 F. 2d 645 (7th

Cir, 1957); Commonwealth Development Assoc. of Penn-

sylvania v, United States, 365 F. Supp. 792, 796 (M.D. Pa.

1973) aff'd 503 F. 2d 1398 (38d Cir. 1974); Parenti vy.

Whinston, 347 F, Supp. 471, 472 (E.D. Pa. 1972). Although

the cited authorities deal with 26 U.S.C. 6861, the jeopardy

assessment statute, we do not understand why those cases

do not also apply to the district director’s power to enter

a termination assessment under 26 U.S.C. 6851. Cf. Laing

v. United States, 96S, Ct. at 482 (Court noted the jeopardy

assessment and jeopardy termination provisions have long

been treated in closely parallel fashion). In sum we be-

lieve the district director’s use of the jeopardy termination

provision of 26 U.S.C, 6851(a)(1) is within the broad dis-

cretion of his office,

Not only can the approval of a jeopardy termination

be termed a discretionary function of a district director’s

office and thus bring that act within the ambit of official

immunity, but we also believe as a matter of policy the

approval of a jeopardy termination falls within the “dis-

eretionary functions” test.

In Gustavsson Contracting Co. v. Floete, 299 F. 2d 655

(2d Cir. 1962) cert. denied 374 U. S. 827 (1963) the Second

Cireuit Court of Appeals stated the real question which

must be answered is not whether an act is “discretionary”

but whether “the act complained of [is] the result of a

judgment or decision which it is necessary that the Gov-

ernment official be free to make without fear or threat of

vexatious or fietitious suits and alleged personal liability?”

The jeopardy termination provision has a salutary

purpose. It provides a method by which the government

can secure taxes from those who are unlikely vo pay the

taxes owed by them. To insure the proper use of the

jeopardy termination provision the district director must

8a

not be under the constant pressure of a potential lawsuit

if it is ultimately determined that the termination should

not have been issued.

In conclusion, even if we assume, arguendo, that we

have subject matter jurisdiction pursuant to Bivens to

entertain a damage suit against McHugh, we must hold

that the evidence before us demonstrates only that Mc-

Hugh, as a regular duty of the district director’s office,

issued a jeopardy termination against the plaintiff. Such

an action on his part is protected under the doctrine of

official immunity. Again we emphasize the conclusory

allegations of conspiracy set forth in the plaintiff's com-

plaint are merely rooted in speculation at least insofar

as McHugh is concerned, and, thus they cannot deprive

McHugh of his summary judgment. Bryant v. Common-

wealth, supra.

Wuererore, For Tue Forecornc Reasons, it is hereby

Onperep that defendant McHugh’s motion for summary

judgment shall be, and the same is hereby, SustTarvep.

Dated:

(s) James F. Gordon

Senior United States District Judge

Copies to:

Counsel of record

9a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 7571-L(G)

EvizapetH JANE Hatt, - - - - - ~~ Plaintiff,

v.

Unrtep States or America, etal. - - Defendants.

MEMORANDUM OPINION AND ORDER—

Entered March 17, 1977

The defendant Elmer Snider has moved the Court for

summary judgment. Previously, the Court ordered sum-

mary judgment in favor of the defendant Thomas McHugh.

Mr. Snider was a “group manager” of the Internal Revenue

Service, his position being several steps below that of Mr.

McHugh. (McHugh’s deposition, pages 11-13).

The plaintiff alleges that Snider wrongfully initiated a

termination assessment against her. He allegedly did this

in conspiracy with various Kentucky state officials.

The evidence shows that one Gerald Huber was respon-

sible for the preparation of the tax termination assessment.

He was the field agent whose report was the basis of the

actions of, initially, Mr. Snider and, eventually, Mr. Me-

Hugh. Snider was one of many persons who “signed off”

or. the paperwork as it crept toward final approval by Mr.

McHugh. (McHugh’s deposition, page 11). Indeed Me-

Hugh stated that he approved the assessment based upon

Huber’s report, not Snider’s or any other person’s recom-

mendation. (McHugh’s deposition, page 27).

Mr. Snider admitted by affidavit that he did approve

the termination assessment against plaintiff. He stated,

~ meer ©

10a

and plaintiff agreed with this, that he did not know plain-

tiff, had never seen plaintiff, and had never talked with her.

It appears that the sole reason for the appearance of

Mr. Snider in this lawsuit relates to an appearance by

Snider to plaintiff's lawyers shortly after the assessment

was levied. The plaintiff’s attorneys wanted to see Mr. Me-

Hugh, but he was not available. (McHugh had actually

signed the assessment letter). Thus, Mr. Snider, one of

many who signed off on the assessment recommendation,

appeared in McHugh’s place. By all accounts, he refused

to “unauthorize” the assessment, for whatever reason.

(Plaintiff's deposition of March 1, 1976, pages 28-29).

In arguing against defendant Snider’s motion, the plain-

tiff asserts no facts in support of her allegations of “con-

spiracy” with state officials. She merely points to the

pleadings in defense of the motion. As the Court pointed

out in its earlier memorandum opinion, the plaintiff must

do more in defense of a motion for summary judgment than

point to the pleadings. Bryant v. Commonwealth, 490 F. 2d

1273 (6th Cir. 1974).

Mr. Snider’s actions against plaintiff have not been

shown in any way to be other than routine approval of a

field audit. The allegation of conspiracy, etc., has remained

only an allegation, with no proof offered that Snider per-

sonally deprived or conspired to deprive plaintiff of any

federal right. The essence of liability under the civil rights

laws is personal liability. The doctrine of “respondeat

superior” does not apply. Jennings v. Davis, 476 F. 2d

1271 (8th Cir. 1973); Adams v. Pate, 445 F. 2d 105 (7th

Cir. 1971); and Rizzo v. Goode, 423 U. 8. 362 (1976). In

Rizzo, the desenters recognized that the majority was

ruling out any doctrine of vicarious responsibility under

the civil rights act. (423 U.S. at p. 384-85).

Of course, the plaintiff has failed to show that Snider

was in any way acting pursuant to state law, custom or

usage in his actions, Thus, under 42 U.S.C.A. 1983, plain-

te

lla

tiff has still failed to assert a cause of action. It is undis-

puted that Snider was operating pursuant to his authority

as an Internal Revenue Service agent.

Plaintiff cannot remedy this “state action” defect by

asserting a conspiracy with state officials pursuant to either

42 U.S.C.A. 1985 or 1986. Section 1985 deals with interfer-

ence with the right to vote, to serve on juries, or to have

equal protection under the laws. Section 1986 deals with

vicarious liability of others who have knowledge af Section

1985 violations.

In this case, plaintiff has not alleged any conspiracy to

keep her from voting or otherwise enjoying the equal pro-

tection of the law. Her whole complaint deals with alleged

violations of her right to due process of law. As such, she

has not alleged any violation under either Section 1985 or

1986 of the civil rights laws. See Tollett v. Laman, 497

F. 2d 1231 (5th Cir. 1974); Collins v. Bensinger, 374 F.

Supp. 273 (D.C. Ill, 1974), aff'd 506 F. 2d 140). And,

again, plaintiff has done nothing more than point to the

pleadings for proof of any conspiracy.

Plaintiff also attempts to assert a claim based directly

on the Fourth Amendment. It is too late to amend the

complaint for additional jurisdictional allegations and, in

any event, she has not shown any personal violation by

Snider. Rizzo v. Goode, supra. The Court does not reach

_ the question of immunity as that issue need not be decided

in view of the failure of the complaint to state a claim.

Ir Is THererore Ornperep that defendant Snider’s mo-

tion for summary judgment be Susrarvep and that the

complaint against him be dismissed.

March 15, 1977

(s) James F. Gordon

Senior United States District Judge

Copies to:

Counsel of record

12a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 7571-L(G)

EvizapetH JANE Hatt, - - - - - ~~ Plaintiff,

v.

Unirep States or America, etal. - - Defendants.

MEMORANDUM OPINION AND ORDER—

Entered May 2, 1977

The United States has moved to dismiss plaintiff’s claim

for damages on grounds that the United States has not

waived sovereign immunity. Plaintiff contends that the

Administrative Procedure Act subjects the United States

to review in the District Court.

The Court has been presented and has found no au-

thority for the proposition that the Administrative Pro-

cedure Act enables a plaintiff to sue the United States in

tort. Rather, as the United States points out, such suits

are authorized only when the United States has consented

to suit or the Congress has otherwise statutorily waived

immunity. The only basis for this suit, then, is the Federal

Tort Claims Act, 28 U.S.C. 2671 et seq.

Even if the acts complained of herein constituted a tort,

the Act exempts from coverage .. .

(c) Any claim arising in respect of the assessment or

collection of any tax or customs duty, or the detention

of any goods or merchandise by any officer of customs

or excise or any other law enforcement officer.

13a

Accordingly, the plaintiff may not maintain this damage

suit against the United States. Krouse v. United States

Government Treasury Department Internal Revenue Serv-

ice, 380 F. Supp. 219 (C.D. Cal. 1974); Morris v. United

States, 521 F, 2d 872 (9th Cir. 1975).

Ir Is Ornperep that defendant United States’ motion for

judgment on the pleadings is Susrarvep.

April 29, 1977

(s) James F. Gordon

Senior United States District Judge

Copies to:

Counsel of record

ld4a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 7571-L(G@)

EnizasetH Jane Hatr, - - - - = Plaintiff,

v.

Unrrep States or America, etal, - - Defendants.

PARTIAL JUDGMENT—Entered May 2, 1977

For all the reasons stated in the Memorandum Opinion

of this day,

Ir Is Heresy OrpERED anp ApsupGeED that the United

States of America be, and it is hereby, dismissed as a party

to these proceedings.

April 29, 1977

(s) James F. Gordon

Senior United States District Judge

Copies to:

Counsel of record

15a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action 7571-G

EuizasetH Jane Hatt, - - - - - = Plaintiff,

v.

Unrrep States or America, etal, - - Defendants.

ORDER AND JUDGMENT—Entered July 2, 1981

Counsel having tendered this order for the Court’s con-

sideration, and the Court having considered same and being

fully advised, finds and orders as follows:

1. That the defendant, Donald Powers, is the sole re-

maining defendant in this action; all other defendants hav-

ing been previously dismissed by order of this Court.

2. That the defendant, Donald Powers could not have

conspired with himself, and therefore those counts in the

complaint alleging a conspiracy must fail.

3. That the pleadings and proof, as developed througn

discovery, show that the plaintiff should not prevail on her

claim against the defendant, Donald Powers.

4. The defendant, Donald Powers, is entitled to judg-

ment on the merits in this action, over the objection of the

Plaintiff. '

Tuererore, it is ordered and adjudged that the com-

plaint of the plaintiff against the defendant, Donald Pow-

era, is hereby dismissed, with prejudice, at the costs of the

16a

plaintiff. This is a final and appealable Order.

Dated: July 1, 1981.

(s) James F. Gordon

Senior Judge

Have Serex, Notice or Entry WarvepD:

Attorney for Plaintiff

Attorney for Defendant, Donald

Powers

17a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 81-5586

EvizaBetH JANE Hatt, - - - # Plaintiff-Appellant,

v.

Unrrep States or America, Er At., - Defendants-Appellees.

Appeal From the United States District Court

for the Western District of Kentucky.

OPINION—Decided and Filed March 23, 1983

Before: Lrvety and Encet, Circuit Judges, and Pan-

tips, Senior Circuit Judge.

Pues, Senior Circuit Judge. This action was filed

against the United States, two officials of the Internal

Revenue Service and a Kentucky State police officer seek-

ing injunctive relief, $20,000 in actual damages and oue

million dollars in punitive damages. The original com-

plaint asserted jurisdiction under 42 U.S.C. § 1983. The

amended complaint also relied upon 42 U.S.C. §§ 1985 and

1986 and various provisions of the Constitution. The dis-

trict court granted summary judgments in favor of de-

fendants. The plaintiff, Mrs. Elizabeth Jane Hall, appeals.

This litigation is a sequel to Hall v. United States, 493

F. 2d 1211 (6th Cir. 1974), aff'd sub nom. Laing v. United

States, 423 U. 8. 161 (1976), *u which the issuance of an

injunction against the sale of pleintiffs automobile and

18a

other personal property levied upon by the IRS was upheld.

The case now is before us on the related issue of the poten-

tial personal liability of the defendants. For the reasons

set forth below, we affirm the orders of the district court

dismissing the action as to all the defendants, except as to

the injunctive relief heretofore granted.

I

Subsequent to the arrest of appellant’s husband in Texas

on drug-related charges, Kentucky state troopers, pursuant

to a valid warrant, searched the home of appellant on Jan-

uary 31, 1973. The search uncovered controlled substances.

The following day the Acting District Director for the IRS,

defendant Thomas P. McHugh, notified appellant by letter

that he found her involved in illicit drug activities, thereby

rendering ineffectual the collection of income tax for the

period January 1, 1973, through January 30, 1973. Pur-

suant to 26 U.S.C. 4 6851, District Director McHugh de-

clared appellant’s taxable period for the first 30 days of

1973 “immediately terminated” and her income for that

period “immediately due and payable.” McHugh assessed

the tax in the amount of $52,680.25.

When appellant contended that she was unable to pay

the assessed amount, the IRS levied on all her property,

including her automobile and bank account. In response,

Mrs. Hall brought suit in district court seeking injunctive

and monetary relief. Because the IRS never provided Mrs.

Hall with a deficiency notice as required by 26 U.S.C. ¢ 6861,

this court affirmed the grant of injunctive relief by the dis-

triet court to restrain the United States from selling the

automobile. Hall, supra, 493 F. 2d at 1212. The decision

of this court subsequently was affirmed by the Supreme

Court. Laing, supra, 423 U.S. at 185.

That part of appellant’s action seeking damages was

held in abeyance, pending resolution of the injunction issue,

19a

On the present appeal, appellant asserts that the actions

of the defendants in regard to the federal income tax as-

sessment and levy violated her constitutional rights as

secured by the fifth, ninth and fourteenth amendments to

the Constitution.

On successive motions for summary judgment on the

pleadings, the district court dismissed the claims as to each

defendant. District Judge James F. Gordon found that

District Director McHugh was protected by official im-

munity since he approved the recommendation of termina-

tion and jeopardy assessment while acting within the scope

of his off‘eial duties. The district court found no evidence

connecting McHugh with any conspiracy to deprive Mrs.

Hall of her constitutional rights. The district court granted

summary judgment for IRS official Elmer Snider since

appellant was unable to produce anything outside her

pleadings to show that Snider acted improperly or in con-

spiracy with State officials. The claim against the United

States was dismissed on grounds of sovereign immunity.

The claim against state police officer Donald Powers was

dismissed on the ground, among others, that the plaintiff

was unable to point to any wrongdoing committed by officer

Powers,

I

Appellant avers that the district court erred in conclud-

ing that District Director McHugh was entitled to the

defense of official immunity.’ Although we cannot agree

with the conclusion of the district court that McHugh’s

1A ppellant also claims that the district court erred in ruling

that it did not have subject matter jurisdiction under 42 U.S.C.

§§ 1988, 1985, 1986. It is clear that any action taken by defendant

McHugh, as an IRS official, would be under federal law and not

state law for purposes of a claim for relief under § 1983. As toa

claim under either § 1985 or § 1986 the record shows that there is

(Footnote continued on following page)

20a

actions were protected by the doctrine of official immunity,

we hold that the defense of qualified, good faith immunity

applies.

The district court held that McHugh was afforded offi-

cial immunity under the rule announced by the Supreme

Court in Barr v. Matteo, 360 U.S. 064 (1959). In Barr the

Court held that federal officials enjoy absolute immunity

from suit for common law torts based on acts within their

discretionary authority. In Granger v. Marek, 583 F. 2d

781, 784-85 (6th Cir. 1978), this court followed the Barr rule

and held that, as applied to c’ nmon law torts, the rule sur-

vived the decision of the Supreme Court in Butz v. Econo-

mou, 438 U. 8. 478 (1978), in which the Court held that

federal officials were afforded only a qualified, good faith

immunity from suits for constitutional torts. We recently

reaffirmed our adherence to the Barr rule in the context of

common law torts committed by federal officials in Queens

v. Tennessee Valley Authority, 689 F. 2d 80, 84 (6th Cir.

1982).

Appellant asserts that District Director McHugh vio-

lated her fifth amendment rights due to his approval of the

(Footnote continued from preceding page)

no evidence to connect McHugh with any conspiracy to deprive

Mrs. Hall of her civil rights sufficient enough to trigger jurisdiction

under § 1985 or § 1986.

The district court, however, assumed that it had jurisdiction

under the doctrine announced in Bivens v. Sic Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U. 8. 388 (1971). Al-

though Bivens dealt with a fourth amendment violation, its logic

appears equally applicable to the constitutional claims raised

herein. See Laing, supra, 423 U.S. at 209-10 n. 14 (Blackmun, J.,

dissenting) ; Yiamouyiannis v. Chemical Abstracts Service, 521 F.

2d 1392, 13893 (6th Cir. 1975), cert. denied, 439 U. S. 983 (1978)

(first amendment) ; Coz v. Stanton, 529 F. 2d 47 (4th Cir. 1975)

(fourteenth amendment) ; Dry Creek Lodge, Inc. v. United States,

515 F, 2d 926, 932 (10th Cir. 1975), cert. denied, 449 U. 8. 1118

(1981), reh’g denied, 450 U. 8. 960 (1981) (fifth amendment).

2la

faulty termination and jeopardy assessments. Since ap-

pellant has alleged constitutional violations, as opposed to

common law tort violations, we conclude that the Barr rule

is not dispositive of the immunity issue.

In Scheuer v. Rhodes, 416 U. S. 282 (1974) the Court

held that only a defense of qualified, good faith immunity

was available to high state officials for violations of con-

stitutional rights. Under the doctrine of qualified, good

faith immunity, a government official performing acts

within the scope of official conduct is insulated from a suit

in civil damages if (1) at the time and in light of all the

circumstances there existed reasonable grounds for the

belief that the action taken was appropriate and (2) the

officer acted in good faith. 416 U. S. at 247-48. In Butz v.

Economou, supra, 438 U. S. 478 (1978) the Court resolved

any doubt that the standard enunciated in Scheuer applied

equally to federal officials. In Butz it was held that there

was only a qualified, good faith immunity for federal

officials charged with constitutional violations, absent some

special showing of a need for a full exemption of liability.

438 U.S. at 507. In so holding, the Court distinguished its

ruling in Barr, supra, finding that case dispositive only as

to federal officials whose conduct does not exceed constitu-

tional limits. 438 U. S. at 507.

Inherent in the doctrine of qualified, good faith immunity

is both an “objective” and “subjective” aspect. Harlow v.

Fitzgerald, U. S. _—., 102 S. Ct. 2727, 2737 (1982).

The former element refers to the presumptive knowledge of

the official, whereas the latter encompasses the official’s

subjective intent in performing the challenged conduct.

Taken together, the defense of qualified, good faith immu-

nity will not lie if the official “knew or reasonably should

have known that the action he took within the sphere of

official responsibility would violate the constitutional rights

of the [plaintiff], or if he took the action with malicious

intention to cause a deprivation of constitutional rights or

22a

other injury.” Wood v. Strickland, 420 U. S. 308, 322

(1975), reh’g denied, 421 U. S. 961 (1975). See Harlow,

supra, U. 8. __, 102 S. Ct. at 2737 n. 25 noting that

despite its specific context of school discipline, Wood stands

as a general statement of the qualitied immunity standard.

Most recently the Supreme Court refined the limits of

qualified, good faith immunity, placing “[r]Jeliance on the

objective reasonableness of an official’s conduct, as meas-

ured by reference to clearly established law.” Harlow,

supra, U. S. ——, 102 S. Ct. at 2739. Under this

approach summary judgment should issue on the grounds

of qualified, good faith immunity if the official’s conduct

did not violate clearly established statutory or constitu-

tional rights at the time the challenged action occurred.

Accordingly, if the law at that time was not clearly ostab-

lished then the official cannot be held to have known that

his actions violated the rights of others. Id.

Although we reject McHugh’s contention that he is en-

titled to absolute immunity,? we hold that he is entitled to

the defense of qualified, good faith immunity. From the

record it is clear that the approval of termination assess-

ments falls within the scope of the District Director’s office.

Further, the determination of jeopardy pursuant to 26

U.S.C. § 6851 can be deemed to be within the discretion of

McHugh’s office. Cf. Clark v. Campbell, 501 F. 2d 108, 125

2We reject McHugh’s assertion that he is entitled to absolute

immunity on the basis of the reasoning set forth in Harlow, supra,

U. S. , 102 St. Ct. at 2732-33. Other courts, likewise,

have held that such officials of the IRS are entitled to only qualified

immunity. See, e.g., G. M. Leasing Corp. v. United States, 560 F.

2d 1011, 1014-15 (10th Cir. 1977), cert. denied, 435 U. 8. 923

(1978) ; Weir v. Muller, 527 F. 2d 872, 874 (5th Cir. 1976) ; Mark

v. Groff, 521 F. 2d 1376, 1380 (9th Cir. 1975).

SAlthough the cited authorities deal with 26 U.S.C. § 6861,

jeopardy assessment, such cases would equally apply to the Di-

rector’s use of the jeopardy termination provisions of § 6851(a) (1)

given the closely parallel treatment accorded to both provisions. See

Laing, supra, 423 U, '3, at 177.

a oes

23a

n. 56 (5th Cir. 1974), cert. denied, 423 U. S. 1091 (1976);

Homan Mfg. Co. v. H. A. Long, 242 F. 2d 645, 655 (7th Cir.

1957).

Based on the prior history of the present case, we con-

clude the actions of District Director McHugh did not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known at the time

the action occurred. As noted by the Supreme Court in

disposing of the injunction issue, it was uncertain whether

the IRS, when assessing and collecting the unreported tax

due after the termination of a taxpayer’s period, must

follow the procedures mandated by 26 U.S.C. § 6861 for the

assessment and collection of a deficiency whose collection is

in jeopardy. See Laing, supra, 426 U. S. at 166-67. Ac-

cordingly, since McHugh could not reasonably have been

expected to be aware of the proper procedure not yet been

declared, it cannot be concluded that his conduct violated

clearly established statutory or constitutional rights. See

Harlow, supra, U.S. ——, 102 S. Ct. at 2739 (“If the

law at that time was not clearly established, an official could

not reasonably be expected to anticipate subsequent legal

developments, nor could he fairly be said to ‘know’ that the

law forbade conduct not previously identified as unlawful.’’)

See also Procunier v. Navarette, 434 U. S. 555, 565 (1978) ;

Wood, supra, 420 U.S. at 321.

Since defendant McHugh established sufficiently his en-

titlement to the defense of qualified, good faith immunity,

and appellant relied merely on her pleadings to defeat the

defense, see Bryant v. Commonwealth of Kentucky, 490

F. 2d 1273, 1275 (6th Cir. 1974), it was proper for the dis-

trict court to enter summary judgment for the defendant.

See Harlow, supra, U. S. ——, 102 8. Ct. at 2739;

Butz, supra, 438 at 508, Granger, supra, 583 F. 2d at 785-86.

24a

Ul

As to defendant Elmer Snider, a group manager for the

IRS, the district court never reached the issue of immunity,

finding such inquiry unnecessary in light of appellant’s

failure to state a claim for relief. We agree.

The record shows that an IRS official, not named in this

action, was responsible for the preparation of the tax

termination assessment. Defendant Snider was only one of

many who “signed off” on the paperwork as it proceeded

toward final approval by District Director McHugh. It is

also apparent from the record that McHugh did not approve

the assessment on the basis of any recommendation given

by Mr. Snider. The only link between Snider and the appel-

lant relates to a brief appearance made by Snider with law-

yers for appellant shortly after the assessment was levied.

With respect to this appearance the record demonstrates

that attorneys for appellant wanted to discuss the matter

with Mr. McHugh, since he was the one who signed the

assessment. However, Mr. McHugh was unavailable, and

Mr. Snider merely appeared in McHugh’s place. Beyond

this encounter, appellant has not pointed to any evidence

that Snider personally deprived her of any statutory or

constitutional rights. Further, appellant is unable, except

for bare conclusive allegations, to connect Snider with any

conspiracy with State officials to constitute action under

color of state law. It is clear that Mr. Snider’s only con-

nection to the present action is his mere approvs! of a

routine field audit.

Accordingly, failure of appellant to come forwar to

show genuine issues of materia] fact warrants summary

judgment for defendant Snider. See Bryant, supra, 490

F, 2d at 1275.

IV

Appellant also contends that the district court erred in

dismissing the claim against the United States on the

25a

grounds that it is protected by the doctrine of sovereign

immunity. Appellant argues that the United States has

waived its immunity from suit under the Administrative

Procedure Act, 5 U.S.C. § 701 et seq., or, alternatively, that

the doctrine of sovereign immunity should be abolished.

We find these contentions to be without merit.

The United States is immune from suit under the

doctrine of sovereign immunity except as it consents to be

sued. United States v. Mitchell, 445 U. S. 535, 538, reh’g

denied, 446 U. S. 992 (1980); United States v. Testan, 424

U. S. 392, 399 (1976). Further, “[a]waiver of sovereign

immunity ‘cannot be implied but must be unequivocally ex-

pressed.’” Mitchell, supra, 445 U.S. at 538 quoting United

States v. King, 395 U. S. 1, 4 (1969). In an action for

money damages. it is clear that the Administrative Pro-

cedure Act cannot serve as a basis for a waiver of the

Government’s sovereign immunity. See Califano v.

Sanders, 430 U. S. 99, 104-07 (1977) ; Newson v. Vanderbilt

University, 653 F. 2d 1100, 1107 (6th Cir. 1981). The

Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., which

waives to some extent the Government’s immunity, is of

no avail to appellant’s claim of waiver since § 2680(c) of

that Act provides an exception to a claim for relief arising

from the assessment and collection of taxes. It is clear that

the United States has not waived its immunity to suits of

this nature. See Stankevitz v. IRS, 640 F. 2d 205, 206

(9th Cir. 1981) ; Mack v. Alexander, 575 F. 2d 488, 489 (5th

Cir. 1978).

Appellant cites Larson v. Domestic and Foreign Com-

merce Corp., 337 U. S. 682 (1949), as authority to abolish

the doctrine of sovereign immunity. However, Larson dwes

not stand for such a proposition, but, rather, the Court

stated that such a repudiation was left to the will of

Congress. 337 U. S. at 704-05. See Newson, supra, 653

F, 2d at 1107.

26a

Vv

Appellant’s final claim is that the district court erred in

dismissing her claim against Kentucky state police officer

Donald Powers. Appellant avers that officer Powers con-

spired with the other defendants to deprive her of her

constitutional rights, alleging that Powers contacted the

IRS and gave erroneous information which resulted in the

faulty tax assessment. Appellant also claims that Powers,

under color of state law, defamed her by telling friends and

associates that she was involved in drug trafficking.

In dismissing the claim against officer Powers the dis-

trict court held that since he was the only remaining de-

fendant he could not be held to conspire with himself, Al-

though it would be in error to dismiss the conspiracy claim

against Powers merely because District Director McHugh

was accorded qualified immunity, see Dennis v. Sparks, 449

U. S. 24, 28 (1980), Macko v. Bryon, 641 F. 2d 447, 449-50

(6th Cir. 1981), the record is void of any proof as to a con-

spiracy between Powers and the other defendants.

The record shows that officer Powers, pursuant to his

legal authority, executed a valid warrant to search the home

of appellant. Further, the record demonstrates that Powers

did not contact the IRS concerning appellant’s alleged in-

volvement in drug trafficking, but another police officer con-

tacted the IRS without the approval or authority from

officer Powers. While it is true that Powers, in his in-

dividual capacity, could be liable for any wrongful acts

committed in his official capacity under 42 U.S.C. § 1983, it

is clear from the record that, beyond the bare and un

supported allegations made by the appellant, no claim can™

be made against this defendant. Although the appellant

raises the issue that Powers defamed her by saying to her

friends and associates that she had been selling narcotics,

we note that the claim of defamation, standing alone, is not

subject to redress under § 1983, absent more tangible harm.

27a

See Paul v. Davis, 424 U. S. 693, 709 (1976), reh’g denied,

425 U. S. 985 (1976).

Accordingly, the judgments of the district court are af-

firmed. No costs are taxed. The parties will bear their

own costs on this appeal.

28a

APPENDIX ©

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 81-5586

EvizaBETH JANE HALL, - . Plaintiff-A ppellant,

v.

Unirep States or AMERICA,

eal, - - - = + Defendants-Appellees.

JUDGMENT—Filed March 25, 1983

Before: Livery and Encet, Circuit Judges, and Pxrurps,

Senior Circuit Judge.

On Appgat from the United States District Court for

the Western District of Kentucky.

Tuis Cause came on to be heard on the record from the

said District Court and was argued by counsel.

On Constmperation WHEREOF, It is now here ordered and

adjudged by this court that the judgment of the said Dis-

trict Court in this case be and the same is hereby affirmed.

No costs taxed. Each party to bear its own cost* on

this appeal.

Entered by Order of the Court

John P, Hehman, Clerk

(s) John P. Hehman/ce Clerk

A True Copy.

Attest:

(s) Audrey Crockett

Deputy Clerk

Issued as Mandate; May 10, 1983

29a

APPENDIX D

§ 1981, Equal rights under the law

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of all laws and

proceedings for tue security of persons and property as is

enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and exactions

of every kind, and to no other.

(R. S. § 1977).

§ 1982. Property rights of citizens

All citizens of the United States shall have the same right,

in every State, and Territory, as is enjoyed by white citizens

thereof to inherit, purchase, lease, sell, hold, and convey

real and personal property.

(R. S. § 1978.)

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

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

subjects, or causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the party

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

proceeding for redress.

(R. S. § 1979.)

§ 1985. Conspiracy to interfere with civil rights

(1) Preventing officer from performing duty. If two or

more persons in any State or Territory conspire to prevent,

30a

by force, intimidation, or threat, any person from accepting

or holding any office, trust, or place of confidence under the

United States, or from discharging any duties thereof; or

to induce by like means any officer of the United States to

leave any State, district or place, where his duties as an

officer are required to be performed, or to injure him in his

person or property on account of his lawful discharge of

the duties of his office, or while engaged in the lawful

discharge thereof, or to injure his property so as to molest,

interrupt, hinder, or impede him in the discharge of his

official duties;

(2) Obstructing justice; intimidating party, witness, or

juror. If two or more persons in any State or Territory

conspire to deter, by force, intimidation, or threat, any

party or witness in any court of the United States from

attending such court, or from testifying to any matter

pending therein, freely, fully, and truthfully, or to injure

such party or witness in his person or property on account

of his having so attended or testified, or to influence the

verdict, presentment, or indictment of any grand or petit

juror in any such court, or to injure such juror in his person

or property on account of any verdict, presentment, or in-

dictment lawfully assented to by him, or of his being or

having been such juror; or if two or more persons conspire

for the purpose of impeding, hindering, obstructing, or

defeating, in any manner, the due course of justice in any

State or Territory, with intent to deny to any citizen the

equal protection of the laws, or to injure him or his property

for lawfully enforcing, or attempting to enforce, the right

of any person, or class of persons, to the equal protection

of the laws;

(3) Depriving persons of rights or privileges. If two or

more persons in any State or Territory conspire, or go in

disguise on the highway or on the premises of another,

for the purpose of depriving, either directly or indirectly,

3la

any person or class of persons of the equal protection of

the laws, or of ¢)val privileges and immunities under the

laws, or for the purpose of preventing or hindering the

constituted authorities of any State or Territory from

giving or securing to all persons within such State or

Territory the equal protection of the laws; or if two or

more persons conspire to prevent by force, intimidation,

or threat, and citizen who is lawfully entitled to vote, from

giving his support or advocacy in a legal manner, toward

or in favor of the election of any lawfully qualified person

as an elector for President or Vice-President, or as a mem-

ber of Congress of the United States; or to injure any citizen

in person or property on account of such support or ad-

vocacy; in any case of conspiracy set forth in this section,

if one or more persons engaged therein do, or cause to be

done, any act in furtherance of the object of such con-

spiracy, whereby another is injured in his person or prop-

erty, or deprived of having and exercising any right or

privilege of a citizen of the United States, the party so

injured or deprived may have an action for the recovery

of damages, occasioned by such injury or deprivation,

against any one or more of the conspirators.

(R. S. § 1980.)

32a

CONSTITUTION OF THE UNITED STATES

ARTICLE IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrazxts shall

issue, but upon probable cause, supported by oath or affir-

mation, and particularly describing the place to be searched,

and the persons or things to be seized.

ARTICLE V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual service

in time of war or public danger; nor shall any person be

subject for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use without just com-

pensation.

ARTICLE IX

The enumeration in the Constitution of certain rights

shall not be construed to deny or disparage others retained

by the people.

ARTICLE XIV

Passed by Congress June 13, 1866. Ratified July 9, 1868.

section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

9

33a

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal pro-

tection of the laws.

sEcTION 2. Representatives shall be apportioned among

the several States according to their respective numbers,

counting the whole number of persons in each State, ex-

cluding Indians not taxed. But when the right to vote at

any election for the choice of electors for President and

Vice President of the United States, representatives in

Congress, the executive and judicial officers of a State, or

the members of the legislature thereof, is denied to any

of the male inhabitants of such State, being twenty-one

years of age, and citizens of the United States, or in any

way abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall be

reduced in the proportion which the number of such male

citizens shal] bear to the whole number of male citizens

twenty-one years of age in such State.

section 3. No person shall be a senator or represen-

tative in Congress, or elector of President and Vice Presi-

dent, or hold any office, civil or military, under the United

States, or under any State, who having previously taken

an oath, as a member of Congress, or as an officer of the

United States, or as a member of any State legislature,

or as an executive or judicial officer of any State, to

support the Constitution of the United States, shall have

engaged in insurrection or rebellion against the same, or

given aid or comfort to the enemies thereof. But Congress

may by a vote of two thirds of each House, remove such

disability.

section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for

payment of pensions and bounties for services in suppress-

ing insurrection or rebe

neither the Unite

pay any cle bt or ol liga 10!

ir rebellion against

loss or emancipation ota

vations, and claims shall be

SECTIO> ) The ( ongre

hy appropriate le co sla on,

sh il] not be qi

ior anv State shall assume or

ed States, or an

iestioned. But

of insurrectior

vy claim for the

uch debts, obli-

void,

s} ali have power to enforce,

of this article.