Petition for a Writ of Certiorari — Benson v. Rich
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IN THE j
Supreme Court of the United States
Ls October Term, 1971
—-» -—---—— —— $$$
. MICHAEL BENSON. JUNE TRACY, EDDIE BROWN and LINBA
Hupp. ARD. . Petitioners. “en
Vv.
—-FosEPH RICH, “ACK JOHNSON, CHRIS DiGREGORIO, EDwa ARD
S. (“IKE” ) MERRY, and RICHARD KAUZLARIC;
; - Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF.APPEALS FOR THE
TENTH CIRCUIT
Dated: January, 1972 te wos ee
a DONALD JUNEAU
Post Office Box 306
, Window Rock, Arizona 86515 —
"Telephone: (602) 871-4151-
, _ Attorney for Petitioners
Of Counsel:
STEPHEN A.HARVEY ~ «
Post Office Box 306
Window Rock, Arizona’86515
THEODORE R. MITCHELL
ROBERT C. HANNA .
DANIRL MACMEEKIN © .
Post Office Box 826
. Saipan, Mariana Islands 96950
’ WILLARD F. KitTs ;
Post Office Box 219°.
\_AMuquerque, New Mexico 87103 |
«
4
. /
i
_TABLE OF CONTENTS
TABLE OF AUTHORITIES SAAR aN ii
THE OPINIONS BELOW .7o2 oo l
GROUNDS ON WHICH THE JURISDICTION | ey
OF THIS COURT 1S INVOKED Le dsiel, Geosteat teks Se
QUESTIONS PRESENTED FOR REVIEW . eee AC rie -
CONSTITUTIONAL AND STATUTORY ree
PROVISIONS 6, * Aa RS ae or eee <> ae
, a
STATEMENT OF THE CASE ........... he Ba EA.
‘38 / i 7
- REASONS FOR THE ALLOWANCE _ ‘ :
OF File WRIT 2. TOT ON 5.
A. Prosecuting Attorney is Liable For seu Mee i
nS re. 5
9 B. Decision of the’ ‘Court of ilies Conflicts with
~ Recent Decisions of this Court Upholding Free Ex-
ercise Of : ‘Expression weSecnsnstizersenaneagflgrinseecesiensesnstnonong 9
CONCLUSION, s.:.-cceeeeeeeeeee Alesaan AO eer 7
APPENDIX A — SUMMARY JUDGMENT DIS-
| MISSING DEFENDANT ilies SG ees JAS ®
‘APPENDIX B — JUDGMENT OF DISMISSAL. se
APPENDIX C — OPINION OF CQURT OF AP- toa
, PEALS . Dron R aia Peach denetths ULEPaane Fle, erent nae eae a RS
APPENDIX D — “WHEN OUR GRANDFATHERS
CARRIED gg RRRR Ene ohne ee? Oi et Nase te a fei” Ee
¥-.
‘
. TABLE OF AUTHORITIES
CASES ;
~ Bachellar v. Maryland, 397 U.S. 564 (1970) ............. 12
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)... 11
Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966) cert.
denied 386 U. S. 1021 (1967) ..229..000. ee... cai a
Baumgartner v. United States, 322 U. S; 665 gg 12-13
Benson v. Rich, 448 F.2d 1371 (10th Cir. 1971) .. a. 9
: Bingler v. Johnson, 394 US. 741 (1969) -:.......... oe hee
- Byrne v. Kysar, 347 F. 2d 734 (7th Cir. velar cert.
denied 383 U.S. 913 (4966) Ea Raa ee 6
Cantwell y. Connecticut, 310 U.S. (296 ( 1940) . Sera 10
Carroll v: President and Commissioners of Princess
* Anne, 393 U.S. 175 (1968) ....2..--2-2.0.20--. eee ee
Cohen v. California, 403: US. 15 (1971) .......... nt €e, 82:
Corsican Productions v. Pitchess, 338 F. 2d 441 (9th _*
Cir. RRR ES oy FERENCE DE, ASR DS oe ee
DeLatte. v. Genovese, 273 F.Supp. 654 (B.". le.
; 1967), See Seat “LSS SA RE EI 7
Egan v. City of Aurora, 365 US. 514 (1961) we 12
’ Fanale v. Sheehy, 385: F.2d 866 (2d Cir. 1967) nolD a's 6
Feiner v. New York, 340 U.S. 315 (1951) -.......-.2-.... - 10
Food Employees.Local 590 v. Logan hamid Plaza,
Inc., 391 U.S. 308 (1968) ......... SECTS bart GE RO 9
Friedman v. Younger, 282 Pilea 710 (C.D. Cal. -
CEREAL SR ie tas 0S, Webs» SORE ORONO ee
‘Gabbard v. Rose, 359 F.2d 182 (6th Cir. 1966) ........ a 2
’ Gregoire v. Biddle, 177 F.2d 579 (2d Cir. — cert.:
denied 339 U.S. 949 (1950) ...... AA ARO Paepin 6
: Herndon v. Lowry, 301 U. S. 242 (1937) eat oe ee.
ee
Kostal v. Stoner, 292 F.2d 492 (roth Gir. 1961) veh.
denied 369 U.S: 868 (1962) 8.00. 6..7
‘Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955)... ° 7
Link v. Greyhound Corp., 288 F. Supp. 898 - D. ; |
- Mich. 1968) hanes faa eee AE RE Re NE ne : sag |
"Madison v. Purdy, 410-F.2d 99 (Sth Cir. 1969) Re gens Ja
Marsh v. Alabama, 326°U.S. 501 (1006) 2 os: “29
. Monroe v. Pape, 365 U.S. 167 (1961) ...........-.. _.. 6, 8-9
Near v. Minnesota, 283 U.S. 697 (1931) sbngmoaaes nee 1].
New York Times Ca. v. Sullivan, 376 US. 254
(1964) dia ocalawageeaka winnie es eal eaele a insie GRR eae ete nausea 13
: New York Times Co. v. United States, 403 U.S. 713 ;
(1971) ol... vistas ssiiieceshedaage a botoasgaabeatdicciadan coats 11, 12
Organization for a Better Austin v. Keefe, 402 US. aa
~ - 415.(1971) _....... OE eA ee il, 12
Pierson v. Ray, 386 U. S. 547 (1967) ooo. eee. a
“Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) ... 6-7,
Rousselle v. Perez, 293 F.Supp.298 (E.D. La. 1968)... 7.
Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182
I Esc apnea eet 6
Stift v. Lynch, 267 F.2d 237 (7th Cir. 1959) .. Wiostes ef
. Terminiello v. Chicago, 337 US. I ¢1949) sag seoriiaes 9-10 °.
Thornhill v. Alabama, 310 U.S. 88 (1940). ..eeg-e) 10.
United States'v. Muniz,374 US. 150 (1963) "hess basa 8
Ex Parte Virginia, 100, U.S: 339 (1879) ......... senecepiit 5"
Wilkinson v. United States, 365 U.S, 399 (1961) .. 120
Yaselli v. Goff; 12 F.2d 396 (2d Cir. 1926) wiee |
curiam 275°U.S. 503 448 re
Yellin v. United States, 374 USS. 109 (1963) . a at ©
-@
1V
: Scar
CONSTITUTIONAL PROV ISIONS,
|? “STATUTES AND RULES
US. Constitution, First Amendnient use vee: en 9, 10, 11
U.S, Constitution, Fourteenth Amendment ree eee : es 8
18 U.S.C. Section to RM els oe posecinrcclecrnasemciat Ua
28 U.S.C. Section RE te Co ee
28 U.S.C. Section 1343 Suet was SCO epee pene Ҥ.
28 U.S.C. Section 1651} oo... ceecceeseeeee eA
28 U.S.C. Sections 2201-2202'. ieabatitais Chibiey cas hares 5
42 U. S.C. Section OME hg atl cits SRE EE ees
42 U.S.C; Section 1983 1.02.02. 00 0 estessteadeneeece 23, 5) &:
42 US.C. Segtion 1985 2. gyn a
| Rule 19. 1). (b) of the Supreme Conall of the United
States ....... Rake sades pecbeeeavecdabout hove peutuaacscdbess ak eRe eee 8
N.M. Stat. a Sections 73-31-1. et 8G (1953
, Comp.) 2. ee rar aay 2 £8,
OTHER AUTHORITIES
Barrett. Police Practic es and the Law—From Arrest ~
to Charge, 5Q Calif. L.Rev. 11 (1962) asguanbononarnngnse- 6-7.
*. Coburn, C.; Remarks of, Cong. Globe, 42nd Cong. 1 Ast
Sess.App. etic ba batisile OL Ee A OO REIS 8.
Comment, Liability of Ju ‘cial Officers Under Section 7
* 1983, 79 Yale L. J. 322 1969) _22.00.. DRESS EA Oana 8
Kates, Immunity of Judges Under the Civil Rights Act:
Pierson v..Ray Reconsidered, 65° Nw.U.L.Rev. 615
CI97O) 6c. Bate cok gia aace Cotbed Sas bei cay ine oe 8
Shellabarger, Samuel. Remarks ni Cong; Globe, 2nd |
. : Cong. Ist Sess. App. 68 La. Stee naier iste Hii 8
“IN THE Tete as ee
\ o
Supreme Court of the United States
Ociober Term, 1971 |
No......... SS
\.
MICHAEL BENSON, JUNE TRACY, — Brown and LINDA oa
Aivssarp,
. . Petitioners,
ee a aia
JosEPH RICH, JACK JOHNSON, CHRIS DiGREGORO, EDWARD
" S. (“IKE”) MERRY, and RICHARD KAUZ ARIC,
Respondents.
PETITION FOR A WRIT. OF CERTIORARI TO THE
‘UNITED STATES. COURT OF APPEALS FOR THE
° TENTH eceeusee
"THE OPINIONS BELOW
T = jiidgment and supporting findings of fact and conclu-
- sions of law of the District Court granting defendant Joseph
L. Rich’s motion for summafty judgment i is unreported and
set out in Appendix A. The } judgment and supporting find-
ings of fact and conclusions of jaw of the District Court dis-
missing the) ‘complaint and the cause is unreported and set ©
out in Appendix B. The opinion of the United States Court
_of Appeals for the Tenth Circuit affirming the lower court’ :
_ judgments is reported at 448 F.2d 1371 and is set out in
hi || 2 ar
“
x
ma ee
GROUNDS ON WHICH THE: JURISDICTION OF |
THIS CQURTISINVOKED °
(i} The judgment of the United States Court of Ap -
peals for the Tenth Ci -nit affirming fhe district court's
judgments was entered on October 18, 1971. No eae
petition as filed. —
«U) Jurisdivtion of the petition is conferred on this
Court by 28 U.S.C. §1254(1).
QUESTIONS PRESENTED FOR REVIEW
1. Whether a prosecuting attorney has immunity from a
claim for damages arising under 42 U.S.C. $1983?
2... Whether the mere possibility of disorder at a public
gathering constitutes such a clear and present danger as to
justify public officials suppressing the exercise of First
= Amendment freedoms?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitution
. provides as follows:
AMENDMENT |!
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise ‘thereof; or
abridging the freedom of speech, or of the press;. or the
, Tight of the people peaceably to assemble. and to petition --
\the Government for a redress of grievances.
Section 1983 of Title 42, United States Code, =
as follows:
$ 1983. Civil action for deprivation of rights.
—
Every person who, under color of any statute. ordi-
nance, regulation, custom, or usage, of any State or.
Territory, subjects. Or causes to ‘hs subjected. any
citizen of the United States or other person’ wahin 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 ac-
tion at law. suit in equity. or other proper proceeding ,
forredress. “(R.S. § £979.)
DERIVATION
"Act Apr. 20, 1871. ch: 22. 1, 17 Stat. 13.
9 U.S.C. 10283 (1970ed.).
* STATEMENT OF THE CASE
The Inter-Tribal Indian Ceremonial is an annual affair in
Gallup. New Mexico, put on in mid-August by the Inter-
Tribal Indian Ceremonial Association. an agency of the
State of New Mexico. N.M. Stat. Ann §73-31-1 ef seq.
(1953 Comp.). During the- 1969 Ceremonial. on August
* 15, petitioners Michael Benson and Eddie Brown. .both .
_ young Indians. went to the Ceremonial grounds in order to
pass out leaflets entitled “When Our Grandfathers Carried
Guns.” The text of the leaflet is set out at Appendix D. The
leaflet was harshly critical of the Ceremonial and the City
‘of Gallup. While petitioners were passing out the leaflet in
- front of ‘the main grandstand. petitioner Benson was ac-
costed by respondent DiGregorio. the grandstand supervi-
sor. Mr. DiGregorio took the leaflets from Mr. Benson and
advised respondent Kauzlaric. then President of the Asso-
ciation. of Mr. Benson's activities. They then confronted
Mr. Benson and asked-his name. which Mr. Benson said he
would only give a police officer. Standing nearby was re-
spondent Johnson. a New Mexico State Police Officer who
cas 4 man
was called over and obtained.Mr. Benson’s name. After
some discussion, Mr. Benson stated that he would not fur-
_ ther distribute leaflets on Ceremonial grounds. Shortly after
_ this Mr, Benson met with Mr. Brown and some other young
people ‘and rekited to them what had happened. At one
point. Mr. Johnson heard one of the group say that if Ben-
son wanted thei to they would tear the Ceremonial down.
However. neither Mr. Benson nof_Mr. Brown Heard sach a
‘statement and they characterized the group as very peace-
_ ful. Shortly thereafter petitioners left the grounds.
*Petitioners conferred with an attorney, who informed
them they had a right to distribute leaflets on the Ceremo-
nial grounds. On the following morning petitioners handed .
out the leaflets along the Gallup streets, which were in a
crowded condition because of the Cerémonial parade.
When petitioners proceeded to the Ceremonial grounds and
begair distributing the leaflets there, they were again ac-
costed by despondent Johnson, who informed them that they
could be arrested for trespass if they remained on the
grounds distributing the leaflets. Mr. Benson stated that he
~ had a legal‘right to remain there and hand out leaflets, and
asked to be taken to the District Attorney. Mr. Johnson and
Mr. Benson then met with respondents Kauzlaric and Rich
in a small room underneath the grandstands. Mr. Rich, who
- was and is the Assistant District Attorney fer the Eleventh
Judicial District of New Mexico, had prior thereto informed
Mr. Kauzlaric that the Ceremonial grounds were private
property and subject to the exclusive control of the Associa-
tion. He further interpreted the'leaflet as a call to arms and
opined that it could spark a riot. Mr. Kauzlaric revoked Mr.
Benson's privilege to be on the grounds while distributing .
the leaflets and Mr. Rich informed Mr. Benson that he .
could be arrested for criminal trespass if he remained on the
grounds passing out the leaflets. Respondents also informed
Mr. Benson that he was perfectly free to distribute the leaf-
let on the Gallup city streets. Petitioner Benson, accompa-
nied by respondent Johnsons then rejoined the other peti-
~ tioners and told them what had happened. Closely followed
by Mr. Johnson, petitioners left the grounds.
Petitioners filed their complaint for money damages dnd
injunctive relief on September 19, 1969, alleging depriva-
tion of civil rights. An amended complaint. for damages,
declaratory and injuctive relief was filed on November 9,
_. 1969. The bases for jurisdiction in the district cqurt were 42
U.S.C. $$1981, 1983 and-1985; 28 U.S.C. §§1343. 2201.
2202 ae 1651. On July 16, 1970, the district court entered .
summary judgment in favor of respondent Rich. See Appen-
dix A. After a non-jury trial on the merits. the district court
entered a judgment of dismissal on August 7, 1970. See Ap-
pendix B. Petitioners noticed appeals to the United States
Court of Appeals for the Tenth Circuit from the judgment —
of dismissal on August 7, 1970, and the-summary judgment
on ‘August 11, 1970. The -appeals were docketed as Nos.
519-70 and 520-70 and consolidated. After extensive briefs
were filed and oral argument heard. the United States Court
of Appeals for the Tenth Circuit affirmed the lower court's,
judgments on October 18. 1971. 448 F.2d 1371. See Ap--
pendix C.
REASONS FOR THE ALLOWANCE OF THE WRIT
A... PROSECUTING A TTORNEY IS LIABLE FOR
DEPRIVATION OF Cl VIL RIGHTS
In Pierson v. Ray, 386 U.S. 547 (1967). this Court held
that state court judges are immune from-42 U.S.C. $1983
damage actions, although state court judges are subject to
~ federal criminal liability for violation of federal civil rights.
Ex Parte Virginia, 100 U.S. 339 (1879). Relying upon Ya-
ae
‘i
ne? ee
selli v. Goff, 12 F.2d.396 (2d Cir. 1926) aff'd per curiam
275 US. 503 ( 1927); some courts have held that a prose-
cuting attorney is also ‘shielded from‘ $1983 liability by
quasi-judicial immunity. E.g., Fanale vy. Sheehy, 385 F.2d
866 (2d Cir. 1967); Bauers v. Heisel, 361 F.2d 581 (3d
Cir. 1966) cert. denied 386 U.S. 1021 (1967); Byrne Ricken
_ Kysar, 247 F.2d 734 ¢7th Cir. 1965) cert. denied 383 U.S.
913 (1966): Kostal vy. ' Stoner, 292 F.2d 492 (10th Cir.
4961) cert. denied 369 U. S. 868 (1962): Gregoire v. Bid-
dle, 177 F.2d 579 (2d Cir. 1949) cert. denied 339 os.
949 (1950).
Other circuits have held that a prosecuting attorney does
not have a bjanket immunity from a claim under Civil
Rights Act, and have examined the prosecutor's role in the
situation in question. In Robichaud v. Ronan, 351 F.2d 533
(9th Cir. 1965), the court said:
We believe, however, that when a prosecuting attor-
ney acts in some capacity other than his quasi-judicial
capacity, then the reason for his immunity — integral
relationship between his acts and the judcial process -
— ceases to exist. If he acts in the role of a policeman,
then why should he not be liable, as is the policeman,
if, in so acting, he has deprived the plaintiff of rights,
privileges, or immunities secured by the Federal Con-
stitution and laws? See Monroe v. Pape, supra, 365°
U.S. at 187, 81 S.Ct. 473; see also Schneider v. Shep-
herd, 192 Mich. 82, 158 N.W. 182, L.R.A. I916F,
399 (-1916), cited in Yaselli, 12 F.2d at 405. To-us, it
seems neither appropriate nor justifiable that, for the
same act, immunity: ‘should protect ad one and not the
other.
2
_ The prosecuting attorney may have numerous rules.
See Barrett, Police Practices and the Law — From Ar-
: Pe , oe : ;
rest to Charge, 50 Calif. L. Rev. 11,,16-24 (1962).,
The distinction between the roles may be significantly |
controlling, for, as our court quite recently empha-
sized, “prosecutors are not immune from suit under the
Act simply ds a matter of status wholly without regard
_ to fhe nature of their conduct.” Corsican Productions
“y, Pitchess, 338 F.2d 441 (9th Cir. 1964).
351 F.2d at 536-537 ({ootnojge omitied ). Accord: Madison
v: Purdy, 410 F.2d 99 (Sth Cir. 1969): Corsican Produc-
tions v. Pitchess, 338 F.2d 441 (9th Cir. 1964)\ Lewis v.
Brautigam, 227° F.2d $24 (Sth Cir. 1955): Rousselle v.
Perez, 293 F. Supp.298 (E.D. La. 1968); Friedman v.
Younger, 282 F.Supp.710 (C.D. Cal. 1968): Link +. Grey-
hound Corp., 288 F.Supp.898 (E.D. Mich. 1968 ): DeLatte
_v. Genovese, 273 F.Supp.654 (E.D. La. 1967).
\ The decisions in favor of blanket quasi-judicial immunity *
fot prosecutors are couched in general, all- embracing terms
ang do not admit exceptions to “the rule. Thus. in Bauers v.
Heisel, supra at 589, the court concludes that “both reason
and precedent require that a prosecuting attorney should be
- granted the same immunity as is afforded members of the
judiciary.” There is no analytical distinction made between
a prosecutor’ s judicial duties and his investigatory ones in.
. these Cases.
There is a clear conflict among the circuits on the ques-
tion: the Fifth (Lewis v. Brautigam, supra) and the Ninth -
(Robichail v. Ronan, supra) making an initial analytical
determination of the prosecutor's role in the conduct at
issue. and the Second (Fanale y. Sheehy, supra), Third
(Bauers v. Heisei, supra), Sixth (Gabbard v. Rose, 359
F.2d 182 (6th Cir. 1966)), Seventh (Szft v. Lynch, 267 -
F.2d 237 (7th Cir. 1959)) and Tenth Circuits (Kostal y.
° Stoner, supra} affording blanket immunity. Because of the
os on ee
conflict among the circuits on this question, and since the
Court has not yet taken a position on the question, the writ ’
should be granted: Bingler v. Johnson, 394 USS. 741
(1969): United State sv. Muniz, 374 U.S. 150 (1963).
Nukeowde: the question of prosecutorial immunity is “an
important question of federal law which has not been, but
should be, settled by this Court * Rule 19 (1) (b) of
the Supreme Court of the United States: Yellin +. United
States, 372 US. 109 (1963). The scope of $1983 as ap-
plied to state prosecutors and other similarly situated offi-
cials should be determined: Petitioners take the position that
the better rule is expressed by the Ninth Circuit in Robi-
chaud, although a good argument can be made for no prase-
cutorial immunity at all.« A study of the legislative history of
$1983 shows conclusively that the proponenis of the origi-
nal 187 statute intended to make judges liable for any de-
‘predations committed upon a citizen’s.civil rights. See the
remark: of Congressman - Samuel Shellabarger in Cong.
Globe, 42nd Cong.. Ist Sess. App. 68 (1871), analogizing
the proposed statute with its model, the Civil Rights Act of
1866, now 18 U.S.C. $242, See also the remarks of Con-
-gressmah Co .1rn, Cong. Globe, 42nd Cong., Ist Sess. App.
461 (1871). Ci. Monroe v. Pape 365 U.S. 167. 185-186
(T1961); Kates. Immunity a Judges Under the Civil Rights
Acts: Ryerson v. Ray Reconsidered, 65 Nw. U. L. Rev. 615,
"621-623 nn. 23-31 (1970):;Comment. L idbility of Judicial .
Officers under Section 1983, 79 Yale L. J.-322 (1969). A
fortiori, prosecttors should alsa be liable under Ԥ 1983.
It is submitted that seipnadent Rich deprived petitioners
of rights guaranteed them by the Fourteenth Amendment
and.that such deprivation was accomplished under color of:
state law. This is sufficrent liability under Monroe v. Papa.
tf
= 9
365 U.S. 167, 171 (1961). The décision’ of the Court of
Appeals i is in conflict with this Court's nneng in Monroe
and should be reversed.
B. DECISION OF THE COURT OF APPEALS CON.
FLICTS WITH RECENT DECISIONS OF THIS COURT
“PHOLDING FREE EXERCISE OF EXPRESSION
£
The Court of pears apparently conceded that petition-.
ers were engaged in the peaceful exercise of First Amend-
ment rights and that their initial presence on the Ceremonial
grounds was lawful. Food Employees Local 590 y. Logan
Valley Plaza, Inc:, 391 U.S. 308 (1968): Marsh: vy. Ala-
bama, 326 U.S.'501 (1946). But the Court premised its
holding against petitioners ‘upon two facts: (1) the leaflet in
question was a “call to arms” to the Indians and it was’ there-
fore “necessary that the distribution be halted to prevent
possible disorders 6r riots on the grounds”, 448 F.2d at
1373 (emphasis. supplied) and - (2) respondent, John-
son’s: uncorroborated statement that he had heard. someone
tell petitioner Benson that if Benson so demanded the group .
would tear apart or burn down the facilities: Jd. These two
facts supposedly warranted the finding of a clear and pres- -
ent dahger which justifYed respondents’ actions in denying.
petitioners the right of distributing the leaflets.
With respect to fact (1); a reading of Appendix D sacle
that the- leaflet is‘not a “call to army.” It does not invoke vio-
lence or seek ‘to incite anyone to commit unlawful! acts.
While it is a strongly-worded document, it cannot under any
circumstances be considered » clear and present danger of a
. riot. There is no advocacy of riot or even of disruption in
the leaflet. This Court invalidated, as an unlawful abridg-
unent of free speech, a Chicago ordinance which perthitted -
‘punishment for breach of the, peace for speech which “stirs
iy,
»
— 10—
the public to anger, invites disputes [Or] brings about a con-
dition of unrest® © ©." Terminiello. v. Chicago, 337 U.S. 1,
3-( 1949). Even though a riot had actually occurred and the’
speech in question had provoked a hostile mob, incited a
friendly one. and thréatened violence between the- two, the
Court found that there was no “clear and present danger of
“a serious substantive evil that rises far above publi¢: incon-
venience, annoyance or unrest.” /d. at 4. In this case, re-
spondent Rich did not make any personal investigation of
the situation, nor did he delegate any law enforcement offi-
-cer to look into the matter. By an. off-hand judgment, un-
touched by any ‘factual investigation; respondent Rich con-
cluded that the leaflet was tinder in an inflammatory situa-
tion. Not-only does the feaflet not justify this conclusion in
the conte Xt of-this Court's decisions construing “clear and
“present danger” (seé, e.g. Cantwell v Connecti@ut, 310
U.S. 296 (1940): Thornhill v. Alabama, 310° U.S. 88
(1940): Herndon v. Lowry, 301 U.S. 242 (1937)), but it
is clear that the mere “possibilit¥” of rioting does not permit
the suppression of free speech. Comparing this case with
Feiner v. New York, 340 U.S. 315 (1951), it is evident that:
thé latter shows a true situation of clear and present danger:
a speaker addressing a crowd: including Negroes and urging
the Negroes to rise up in arms and fight for their rights.
With respect to the second fact, it rests upon an uncorro-—
borated statement,overheard by respondent Johnson. No
one else heard the ‘statement. There is no dispute that the
group out of which this alleged utterance issued was peace-
ful. and left the Ceremonial grounds a short time thereafter.
Clearly an uncorroborated statement heard by only one wit-
ness, himself an adverse party, should not be used. to. deny
First . Amendment rights. ’
Less than seven months ago, this Court stated:
eS ee
“Any system of prior restraints of expression comes
to this Court bearing a heavy presumption against its
Constitutional validity.” Bantam Books, Inc. v. Sulli-
~ van; 372 U.S. 58, 70 (1963): see also Near v. Minne-
sota, 283 U.S, 697°(1931). The Government “thus
carries a heavy burden of showing justification for the
imposition of such a restraint.” Organization for a Bet-
ter Austin v..Keefe, 402 U.S. 415, 419 (4671).
New York Times Co. v. United States, 403 U.S. 713, 714 |
(1971 ). The governmental authorities in this case have not’
met that burden. In a number of recent cases, this Court has
sustained the right of free expression in situations where the
utterances could be considered scurrilous, ‘insulting or out-
rageous. In this ‘category is: Cohen v. California, 403 US.
15 (1971) which reyersed the distuxbing the peace convic-
tion of .a person wearing a jacket s encilled with the words
“Fuck the Draft” in the Los Angeles County Court House
on First Amendment grounds. Acknowledging the distaste-
- ful way'in which:Cohen expressed his Opposition to the Viet-
nam. War, the Court. found that the message on Cohen's
jacket would not incite anyone to violence, déspite the‘lower
court's apprehensions on that score. Similarly, in Organiza-
tion for a Better Austin v. Keefe;,402 U.S: 415 (1971), this ©
Court dissolved an. Anjunction against the. Jeafletting of'a
real estate broker for the latter’ s alleged discriminatory
~ practices in selling real estate. The leaflets were distributed
at a shopping center, on the broker’s-neighbors’ doorsteps,
and to the broker's church parishioners. Even conceding ar-
guendo the lower court’s opinion that the purpose of the
leaflet distribution was to coerce the realtor into dropping
his alleged practices, the Court found that “[t]he claim that
the expressions | were intended to exercise a coércive impact
on respondent does not remove’ them from the reach of the
First Amendment.” 402 U.S. at 419. The constitutional pro-
oe. F's
>
2
tection for the advocacy of unpopular ideas was also vindi-
cated sin Bachellar v.. Maryland, 397 U.S. 564 (1970),
where a disorderly conduct conviction was reversed because
of a jury instruction stating that a guilty verdict might be re-
turned if the defendant's conduct ‘offends,- disturbs, incites
or tends to incite a number of people in the same area. Simi-
larly. in Carroll v. President and Contmissioners of Princess
Anne, 393 U.S. 175 (1968), an ex parte injunction barring.
a tally of the white supremacist National State Rights Party
was.vacated. Even though the officials concerned argued
strenuously that the injunetive order was necessary because
of the clear and present danger of a riot deliberately gener-
ated by the petitioners’ speeches and exhortations, the Court *
found that the ex parte injunction was little removed from
self-help by the police. Yet it is such self-help that was ap-
proved. by the lower court of appeals in the instant case.
And the court relied exclusively on the respondents’ version
of the facts. in its opinion, despite their special interest in the
_case. Carroll v. President and Commisioners of Princess
Anne, supra at 183 n. 10,
>
»
The decision of the Court of Appeals i is directly contrary :
ae and in conflict with the holdings of this Court in the New
York: Times Co:, Cohen, Keefe, Bachellar and Carroll
cases and certiorari should issue in order to’ correct the
Court of Appeal’s misreading of thése cases. See Egan vy.
Cit? of Aurora, 365 U.S. 514: (1961); Wilkinson v. United
States, 365 U.S. 399 (1961). The fact that the Court of Ap-
peals relied upon the district court’s finding of fact does not
insulate-it from reviéw since the * ‘decision here for review
cannot escape broadly social judgments — judgments lying ,
close to Opinien regarding the whole nature of our Govern-
_ ment and the duties and immunities of citizenship..Defer-
ence properly due to the finding of a lower court does not
preclude the review here of such judgments.” Baumgartner
Me ~
e
a -13°—
Vv. United States, 322 U.S. 665, 671 (1944). And this Court
will review findings of fact Where conclusions of law as toa |
federal right and a finding, of fact are so intertwined as to
make it necesSary to analyze the facts in order to pass upon
the federal question. New York ‘Times Co. vy. Sullivan. 376
US. 254, 284 n.26 (1964). :
. - CONCLUSION
Petitioners ask that this Court grant the writ, reverse the
~ Court of Appeals and remand the case to the district court
in order to determine the measure of damages due petition-
ers from respondents.
Respectfully submitted,
DONALD JUNEAU.
‘Attorney for Petitioners
Dated: January 13, 1972
Of Counsel: :
STEPHEN A. HARVEY. | |
THEODORE R. MITCHELL . es
- Ropert C. HANNA | ec to
WILLARD F. Kitts os .
—{5—
APPENDIX A
-IN THE UNITED ST ATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 8215
MICHAEL BENSON, LinDA HUBBARD
and JUNE TRACY, for themselves . . x
and on behalf of a class of ty kn é Rie
persons similarly situated:
Plaintiffs.
No. 8215
rs." FILED.
: _ AT SANTA FE
-- : ; JULY 16, 1970
Josepy L. Ricn, Eowaro S. MERRY, a
Jack JOHNSON, Curis.DIGREGORIO,
RICHARD KAUZLARIC. and the
INTER-TRIBAL INDIAN CEREMONIAL
ASSOCIATION, a corporation, , '
Defendants.
SUMMARY JUDGMENT
.. This cause came on to be heard upon the Motion for
Summary Judgment of the Defendant. Joseph L. Rich. the -
Court having heard in full and considered arguments of
coursel thereon and having examined the pleadings and
depositions on file herein and having concluded that De-
fendant. Joseph L. Rich. is immune from suft in- this action
_aS a matter of law. and having made and filed herein Find-
ings of Fact and Conclusions of Law. and being otherwise
| fully advised in the premises. having granted said Motion. it
1s. therefore.
ORDERED. ADIUDGED AND DECREED that the
Plaintiffs’ Complaint and each and every cause of action or
- aot $G ew
*
count therein contained be. and it hgreby. is, dismissed with
prejudice against the Defendant. Joseph L. Rich.
IT IS FURTHER ORDERED, ADJUDGED AND DE-
CREED that the Defendant, Joseph L. Rich, and the Plain-
tiffs shall each bear their Own costs.
Ld ited this loth day of July, 1970.
EWING T/KERR |
United States District Judge, .As- -
signed
Pe ap . ~ 17 —
IN THE UNITED STATES DISTRICT COURT
/ FOR THE DISTRICT OF NEW MEXICO™
No. 8215 Civil.
MICHAEL BENSON, LINDA HUBBARD,
JUNE TRACY and Eppiz Brown,
for themselves and on behalf |
of a Class of Persons
similarly situated, sae
_ Plaintiffs,
VS. Original Filed
. at Santa Fe
July 16, 1970
JosepH L. Ricu, EpwarbS. (IKE) - a
MERRY, JACK JOHNSON,
Curis DiGREGORIO, RICHARD
KAUZLARIg: and THE INTER-
TRIBAL INDIAN CEREMONIAL .
ASSOCIATION, a Corporation,
, Defendants.
. FINDINGS.OF FACT AND CONCLUSIONS OF LAW:
This cause having come on for hearing upon’ the motion
heretofore filed by the defendant Joseph L. Rich for a Sum-
* mary Judgment, the Court having heard the arguments of
counsel, having examined the pleadings and depositions on
file herein, and being otherwise fully advised in the prem-
ises, now makes the following Fingthgs of Fact and Conclu-
sions of Law:
. . FINDINGS OF FACT
I. This Court has jurisdiction over thé subject matter\_
involved herein.
- The defendant Joseph L. Rich was, at all material
am
\ . a 18 —_ °
times: the Assistant District Attorney for McKinley County,
New Mexico.
> Gr Saturday, August 16,” 1969, while the dining
Rich was in a small room beneath the grandstand on the
Ceremonial Grounds in Gallup, New Mexico, working as a
member of a volunteer committee for the Ceremonial, he ©
was handed_a copy of the leaflet plaintiffs had been distrib-
uting and-was advised that there had been a disturbance Fri-
day night by a blocking the exit, to. the grandstand
area, °.
. The defendant Rich read the leaflet and concluded,
in it faith, that the language thereof presented a clear
. and imminent danger of creating gy inciting a riot situation
among the approximately eight thbusand persons who were
expected to attend each performance at the Ceremonial that
day. : |
5. Shortly thereafter the defendant Richard Kauzlaric,
the President of the defendant Inter-Tribal Indian Ceremo*
- nial Association; an official agency of the State of New
Mexico, approached the. defendant Rich in his capacity as
Assistant District Attorney, indicated that he was concerned *
about another disturbance at. the Ceremonial that day, and
~ asked the defendant Rich for his advice as to what could be
done to prevent such a disturbance.
6. The principal concern of the defendant Rich was to
prevent a riot situation from developing, and he asked the
defendant Kauzlaric if the Ceremonial Association owned—
the Grounds. ; .
7. Jhe defendant Kauzlaric replied that the Ceremonial
Association did Own the property, and the’ defendant Rich
‘advised Kauzlaric that he, as President of the Association.
- could withdraw his consent for the person distributing the
leaflets to remain on the Pee
a"
8. The defenddnt Rich believed, in good faith, that the
.Ceremonial Grounds were private property, that the lan-
guage of the leaflet presented a clear. and presert-danger of
creating a riot situation, that the distribution of the leaflets
on the “Ceremonial Grounds could lawfully be prevented.
and if consent to remain upon the Grounds were revoked or
withdrawn and the plaintiffs refused to Jeave they would be
in-violation of the New Mexico € riminal Trespass Laws.
Some time thereafter the defendant Kauzlaric with-
sd his gonsent for the plaintiffs to remain on the prem-
ises. ?
10. Siesta iTte defendant Jack Johnson. a uni-
formed member of the New Mexico State Police Depart-
ment; appeared in the room mentioned above with the plain-
tiff Michael Benson and approached the defendant Rich in
his capacity as Assistant District Attorney. .
11. The defendant Johnson introduced ‘the defendant
Rich to the plaintiff Benson as the District Attorney or the”
Assistant District Attorney and requested the defendant
Rich to advise the plaintiff Benson as to what his situation
was. |
12. The iieeeten Rich idicend the’ plaintiff inom.
that the Ceremonial Officials did not like what he was
doirg with pajsing out the leaflets. that the Ceremonial .
Grounds were private property. that permission for him to
remain on the premises had been withdrawn. and that he
would be- arrested if he did not‘leave, = premises or stop.
distributing the leaflets on the premises
13. The defendant Rich. then- eRe to the plaintiff
Benson that the plaintiffs-could distribute the leaflets on the
streets of Gallup.
14. The plaintiff Benson ae no reply and he and the
defendant Johnson then left the room. ide ks
‘his jurisdiction.
39 —:
1S. The defendant Johnson, acting upon the advice of
the defendant Rich, and having been advised by the defend-
ant Kauzlatic that he. as an officer of the Inter-Tribal Indian
Ceremonial Association, was withdrawing the association’s
permission tor the plaintiffs Benson, Hubbard and Tracy to
remain on the, association’s grounds, accompanied said
plaintiffs off the grounds.
lo. Atno time were the plaintiffs arrested.
17. Atall material times the defendant Rich was acting
in his capacity as Assistant District Attorney for Mt Kinley
County, New Mexico. in the performance’ of ‘the duties of
his office. and: concerning matters within his jurisdiction.
18. Any facts disclosed by any of the deposition testi-
mony which may be, or appear to’ be,in conflict with the |
fore going are not matoren to the issues involved herein.
CONCLUSIONS OF LAW
i The deferidant Rich, as Assistant District Attorney,
was a judicial or quasi-judicial officer enjoying immunity
from civil liability sfor acts performed in his judicial or
quasi-judicial capacity and in the performance of the duties
of his office so long as-he did not act without or in excgss of
2. Included within the jurisdiction and duties of the‘of-
fice of Agsistant District Attorney for’McKinley County,
New Mexico, were the duties ef advising all county and
state Officers whenever requested, taking necessary steps to
prevent the occurrence of violence, deciding, based upon
the facts submitted to him and upon the request of a New
Mexico State Policé Officer, whether an act has violated or
will violate State Law, advising a private citizen upon. re-
quest that.his acts have violated or, will violate the State
ay: pei
Law, and taking necessary steps to prevent the violation of
State Law. : 7
3. The defendants Katzlaric and Johnson were State
Officers within the meaning of the above duties.
4. The defendant Rich, at all [material times, was acting
in his judicial or quasi- ‘judicial, capacity, in the performance
of his duties concerning matters within his jurisdiction and
is immune from civil liability in this cause.
- Dated this 16th day of July, 1970.
EWING T. KERR
. United States District Judge,
Assigned. =
—_—
ey.
ig | _ APPENDIX B
IN THE UNITED STATES: DISTRICT COURT -
_ “FOR THE DISTRICT OF NEW MEXICO,
PD aa No. 8215 Civil
MicuAEL BENSON, LINDA HUBBARD,
JUNE Tracy and Eppre Brown,
is: | Plaintiffs,
“PS. "9
THE INTER-TRIBAL INDIAN CEREMONIAL .
ASSOCIATION, EDWARD S. (IKE)
_ Merry, JACK JOHNSON, CHRIS
*D1GREGORIO and RICHARD |
kK. AU ZLARIC, > ry
Defendants.
JUDGMENT ‘OF DISMISSAL
The above entitled matter having come on regularly for.
hearing before the Court, siting without a jury? and at the
conclusion of said trial the Court took said matter under ad-
*visement, and having considered the evidence, the exhibits,
the pleadings. the memorandum submitted by plaintiffs and
the authorities subi the defendants, and having. pre-
_- pared and filed hereiitsFinding of Fact and Conclusions |
' of Law finding generally for the defendants and. against the
plaintiffs. now.-therefore, it is
- ORDERED that the complaint, together with the cause,
be, and the same is hereby dismissed.
IT IS FURTHER ORDERED that defendants | have tei
cost herein expended, to be taxed by the Clerk.
Daied this 7th — of August, 1970.
: EWING T. KERR pares
Judge, United States District Coin
Assigned
\
‘\
\/
a
IN- THE UNITED STATES DISTRICT: COURT
, FOR, Gas DISTRICT OF* NEW MEXICO »
o No. 82 I 5 Civil
«
Mic HAEL BENSON, LINDA chan
JUNE TRACY and Eppié Brown, *
hy Plaintiffs,
oo peas
THE INTER-TRIBAL INDIAN CEREMONIAL
ASSOCIATION, EDWARDS, (IKE) _
Merry; JACK JOHNSON, CHRIS -
DIGRE :GORIO and RICHARD KAUZLARIC,
Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW :
The above entitled matter having.come on regularly for
hearing before.the Court. sitting without a jury,-the plain-
tiffs appearing by and through their counsel, Theodore: R..
Mitchell and Robert C. Hanna, and the defendant the In-
-ter-Tribal Indian Ceremonial Association, Edward S. (Ike)
‘Merry, Chris DiGregorio and Richard Kauzlaric appearing
by and through their counsel Harl D. Byrd of the firm of
Bigbee & Byrd, and the defendant Jack Johnson appearing °
Jby,and through his counsel Robert G. McCorkle of the firm
‘ “of Rodey, Dickason, Sloan, Akin & Robb and Miss Joyce
Blalock, Assistant Attorney General for the ‘State of New .
Mexico, and the Court having heard the testimony offered
‘for and on behalf of the plaintiffs and the evidence adduced
for and on behalf of the defendants. took said matter under
advisement. Thg Court now having considered the plead-
ings, the testimony ‘and -exhibits. iovether With the-memo- | -
randum submitted by-plaintiffs and the authorities submit-
ted by the defendants, and being fully advised in the prem-
oe ere
ises, makes the ishiowine Findings of Fact and Coacieans
of Law:
N.-FINDINGS OF FACT
1. That the Inter Tribal Indian Ceremonial Association
‘is-and has been a nonprofit corporation organized. under
and by virtue of the lay Vs of the State of New Mexico and is
_hereinatter referred to as” Association”
_ 2. . In 1939 the Association Was seated by the State
of New Mexico pursuant to Section 73-31-1, New Mexico
Statutes Annotated, 1953 Compilation, as amended, and is
an official agency of the State of New Mexico for the pur-
pose of encouraging the preservation and development of ,
Indian Arts and Crafts among Indian tribes and pueblos of -
the ‘State of New Mexico; encouraging the preservation of
traditional rités and ceremonials of the Indian tribes and
pueblos: and for the development of knowledge and appre-
ciation of Indian arts. crafts, rites and ceremonials among
- other people. : |
3. The Association owns real property with the im-
provements thereon, commonly esiecetyon Memorial Park
located in McKinley County, New Mexico. near the city of °, -
Gallup, State of New Mexico.
4. The Articles of Incorporation which were in effect
at the time this controversy arose are as follows:
“(a) The provision of facilities for the operation and
conduct of the Inter-Tribal-Indian Ceremonial: the ex-
hibition of agricultural and husbandry products pro-
duced by the American Indians; display and exhibition
of Indian blankets, pottery, baskets, silverware, jew-
elry, furniture and other articles made by Indians; the
exhibition of all handwork, writings, paintings, etc., of
Soe’ ey
,
Indian school children: in tact the exhibition of any
product.epade, produced or raised by the American In-
. dianwhich’ will further their education or the educa-
tioh of others interested.
(b) For provision of facilities for the various Indian
Tribes to exhibit or perform their various iribal or-in-
dividual dances, religious ceremonies, songs and sports
or Any other performance or exhibition that may tend
to educate the Indians themselves or others interested
in Indian Folklore, history or religion’ a0 Te
5.' The By- Laws of the Association which were in effect. ‘
at all material times hereto provide i in part that:
as. The management of this Association shall vést in
a’ BOARD OF DIRECTORS consisting of | Twelve
(12) members.
. 5. Memberships 4 ‘in this Association may be held by
any person, firm or corporation and shall not be listed",
in the number held by any such person, firm or corpo-
- ration. The membership fee shall be Ten ($10. 00)
Dollars arid shall be paid at the time of making appli-
cation for membership. A meimbership i in this Associa- *
tion shall be for. One (1) year only, but. may be re- |
’ newed from ‘year to year upon the payment of the
membership fee. ,
6. Each membership shall entitle the holder thereof
to One (1) vote at all meetings of the Association. -
9. The Financial Support of this Association shalt be
derived from Membership Fees, Gifts, Donations and’
monies received, from the exhibjts at the Ceremonial.
The monies so received by this. Association shal? be.
used only for the followi ing pur poses:
" (a) The provision of facilities for the operation.
a ie
-and-Gonduct of the Inter-Tribal Indian Ceremo-
_ nial; the exhibition of Agricultural and Husban-
dry products produced by the Americag Indians:
display and exhibition of Indian blankets, pot-
~ tery, baskets, silverware, jewelry, furniture and
other dfticles made by Indians: the exhibition of
all handwork.- writings. Paintings. ete.. of Indian
school children:-in. fact, the’ exhibition of any
produgt made, produced or raised by the Ameri-
cag Indian which will further their education er
the education of others interested.
.(b) Por provision of ‘facilities tor the various
Indian Tribes to exhibit of perform their Carious
tribal or individual dances, religious ceremonies,
songs and sports or any other performances or ex-
* hibifions that may fend to educate the Indians
themselves or others interested in Indian folklore,
history or: bee eel
6. Thar defendant Rich Staite was President of-
, the Association, defendgaf Edward S-Merry was employed
by the Association # Executive Director, and defendant
Chris DiGregorio was emptoyed'as Grandstand sad <n
7. That the defendant Jack Johnson. was acting in the
coursesand scope of his employment and dutes as a New
Mexico State Police Officer and was on assignment at the ~
Inter-Tribal Indian C ceremonial at Gallup. New Mexico.
8. At no time herein did the Association’ Kauzlaric,
-DiGregorio or Merry evte have any direct or indirect cop-
tact with any of the plaintiffs Brown. Hubbard or Tracy.
*_-9.° That at.no time herein did the defendant Merry ever
, have any direct of indirect contact with dny of the ——
" Benson, ‘Brown. Hubbard or =
#5 ole —27—
10. The 1969 Association ceremonial was held on \u-
_gust 14th through 17th, 1969, on its property described in .
Finding of Fact nunber 3. There were-afternoon and eve-
ning performances presenjed to persons occupying a grand-
stand and bleachers: The Association groumds are fenced
and automobiles entering the grounds are charged a parking
_ fee while. pedestrians are admitted to the Association*
grounds without charge and also charges are made for ad-
mission. to the grandstand and bleachers for. the, perform-
ances. . . ‘
+ That the main entrance and éxit of the onniauad
is pa in the center of the structure which exits into a re-
stricted area called the concourse and in: which concourse
arca there are severa? refreshment stands. The concourse
area, prior to, during intermissions and after the ‘various
performances, is a highly congested area with persons enter-
' ing.and leaving the grandstand.-purchasing refreshments.
hich area is kept free from obstructions so that an orderly
flow of Persons may be mainfained. During performances
there are. still many hundreds ‘of ‘people in the concourse
area with thousands of others on the ceremonial grounds
viewing the exhibits ‘or in the process of coming from and
geen to the various activities held ‘on the ceremonial
grounds. °« . P
12. During the ceremonial moy ceremonial officials
dnd employees wear,.bright colored velveteen shirts and
pants and defendants. Kauzlaric and DiGregoria Gere wear-
ing the same durfng these performances.
13. The grandstand: and bleacher. were substantially
occupied by spectators during the evening. = of
. Friday. August 15. 1969. . . 7
H4. That during the evening of August 15. 1969. lady *
showed plaintiffs’ Exhibit No. | to Kauzlaric and.asked hun,
° z aes; En
.
Where she could obtain another copy. which was -tHe first
knowledge Kauzlaric had of plaintiffs’ Exhibit No. 1,
1S. Phat at approxipiately 10200 P.M. on Friday, de-
fendant Johnson observed plaintiff Michacl Benson handing
out leatleis Plaintifis’ Exhibit No. 1. ‘while Benson was
Stantling very near the exit aisle of the main entrance of the »
grandstand on the C eremonial grounds during intermission
and observed that Benson, in such a position, was obstruct-
ing the orderly flow, of the pedestrian traffic? Johnson ap-
proached Benson and was handed a leaflet and then stepped - -
back away from the flow of traffic. and moved several feet
trom ‘Benson and read the first two or three partgraphs of
the leaflet.
16. » That at the August 15. 1969, everiing performance,
at or about 10:00 o'clock P.M.. DiGregorio, grandstang su-
pervisor, Observed Benson standing in or near the exit aisle
of the main entrance,of the grandstand in such g manner that
~-he was blocking or disturbing the ordegly flow of the specta-
tors eniting from the grandstand while passing out copies of
plaintiftis’ Exhibit “1° into the arms of spectators passing by
him DiGregorie approached Benson’ and asked him what
he was doing and Benson replied to the effect.it was none of
DiGaregorio’s business whereupon Ditiregorio reached for a
leaflet and w hereupon Benson lowered the leaflets he was
holding and gave aH of them to DiGregorio and -moved
.
away from the exit ° : -
i7 That shortly after Benson gave his leaflets ‘to Di-
Gregorio, Kauzlaric ee Benson. introduced himself -
nd asked Benson for his name, to whieh request Benson re-
fused stating Kauzlaric was not a police officer, but Benson
intimated he would give his namie to a police officer, where-
upon Kauzlaric and Benson watked over-to where defen-.
dant Johnson was standing, at which time defendant Kat:-
ee
zlaric inivadincéa himself to Setndune Johnson, stating > ait
he was President. ‘of the Ceremonial Association and tht
Benson had refused to identify himself to Kituzlaric as Kau-
“aric was not a police officer. Kauzlaric asked Johnson to
obtain Benson's name. . - @ eh
18. That defendant Johnson introduced himself to Ben-
son and asked Benson for identification. Benson did not ob-
ject to identifying himself to Johnson and gave’ him: fic}
name and address to, him. He asked Johnson if.it Was Neees-.
sary to give the information Kuuzlaric.
19. That Johnson stated that in his opinion the infor-
‘mation was public record jand that he felt Kauzlaric could
obtain the information by asking for it and Johnson then re-
peated Benson's name and address to Kauzlaric. That Kau-
“laric was standing’close enough to Behson and Johnson to
hear the conversation between them.
20. That during the aforesaid discussion en Friday eve-
ning of August 15. 1969. Kauzlaric gave Benson Kauziar-
-kc’s business card and stated that if Benson had anything he
_. Would like to discuss about the Ceremonial or any other
problem that Kauzlaric would like to discuss it with Ben-
son at that time or any other time Benson might desire and
it was agreed between’ Benson and Kauzlaric that Benson
would not further. distribute me leaflets on the ceremonial!
grounds. . ;
- 21. That after the aforesaid discussian, Benson met dr
“Was — by ¢ group of young people who all engaged in a
discussion abgut the leaflet. Benson told the group “That
“cop took away my leaflets”. One of the persons in the goup
Stated that if Benson wanted. the groyp would tear apart or
. burn the Cefemonial facility down: Officer Johnson ob-
, Served this discussion and heard these statentents.
<
j
— ae
22. That Benson departed from the group and ran ‘to
.the _parking lot where he got in Brown's car. As the car
: started to move from its onrking place. Officer Johnson
» walked by and Michael Benson bemt over or crouched down
in the car in an attempt to, hide from Johnson. Johnson saw
Ben: on trying to hide and stopped the car.
- 23. That Johnson «asked Brown for his driver's license
—and for the registration papers on the car. After Brown pro-
duced these items the three ‘engaged ina discussion which
lasted between five to fifteen minutes. Johnson did not
‘threaten either Benson or Brown with acrest arfd did not tell
them that they had.to leave the Ceremonial grounds and be-
lieved that Benson had agreed not to further distribute the
leaflets on the C eremoRial grounds. Johnson was courteous
‘ with the plaintiffs and they were courteous towards John-
4 son’ The conversation included soct ial matters. including the
attendance of M®Brown and defendant Johnson's datighter
at Fastern New Mexico University. The conversation ended
_on a friendly note and Officer Johnson shook hands with
both plaintiffs.
-24. That Johnson is sccificall authorized * by
NMS.A. $65-3-11 (1953 Comp.) and N.M.S.A. $64-
13-49 (1953 Comp.) to obtain Brown's driver's license and
automobile registration. - 7 e
25. That Johnson did not see-Brqwn at any place on the
Corimonial grounds until the conversation which occurred
in Brown's car atthe parkinglot. © :
-
26. That the plaintiffs then deps irted from the a eremo-
nial groumds. : .
27. Thai later that evening. Johnson met hits grounds su-
- *pervisor. Sergeant Shockey. and told Shockey that plaintiffs
had agreed: not to disribute the leaflets on the Ceremonial
grounds. 5
es an
28. ° That hatin the forenoon of August 16, 1969,
Johnson told Kauztaric about overhearing the remark about
tearing ot burning the place down on Friday evening and
‘Benson's rushing eff the g grounds.
29. That at approximately 12:30 on the following day.
Saturday. August 16. 1969, thé plaintiffs Benson. Tracy
~and Hubbard came to. the Ceremonial grounds and started
handing out copies of the leaflets. :
30. That Kauzlaric, after again observing Benson pass-
ing out leaflets on August 16, 1969. -discussed with the As-
_fistamt District Attorney and District Attorney for Mc-
Kinley County, who were on the Ceremonial grounds, the
contents .of the leatlet; the impact the leaflet could have
upon the thousands of people, including many of Indian de- |
scent. arriving for the afternoon performance: the disturb-
ances at the main entrance to the.grandstand-by Benson on
#ridgy evening: the remark about tearing or burning the
place down as told.to Kauzlaric by Johnson: and told the -
District Attorney und the Assistant District Attorney about
his Concern that the continued handing out of the leaflet op
the Ceremonial grounds .might cause a substantial disrup-
‘tion of material interference with the ceremonial activilies *
and sought their advice in their official capacities as District.
Attorney and Assistant District. Attorney for Me Kinley
County, New Mexivo, as to what could be déne about pre-
venting possible disturbances or disorders.
33. That the Assistant District Attorney interpreted the
contents of the leaflet to amu to a call to arms‘and under’
the circumstances and the’ impact which the leaflet could’
have upen the thousands of people. including many of In-’
dian descent. arriving for the afternoon performance on Au-
gust 16, 1969. and the events of August 15. 1969. the Assis-
tant District Attorney. believed that a substantial disruptive
.
o .
. ees
material interference could develop and lead to a riot situa-
- tion ‘and upon being informed by the District Attorney that
the Ceremonial grounds were private property advised Kau-. °
zlaric that he, as President of the Association, could with-
draw. Benson's perniission to be on the Ceremonial grounds
_ if he continueal to pass out the leaflets and if Benson contin-
ued to do so then a criminal complaint could be made by the ©
Association and Benson could be arrested for criminal tres- -
pass. Based upon this advice Kauzlaric informed Johnson
that Kauztaric, as President of the Association. was denying —
Berison’s permission to be on the grounds if he continued to
pass out the leaflets. Z | :
32. That Johnson stated he must. check with his super-
visors, contacted his supervisors, Captain Cordova, and te- _
ceived instructions from Cordova to check with the District
Attorney and follow his advice.
7
: oes That Johnson located Assistant District Attorney
Joseph Rich. Rich told Johnson that Kauzlaric, as President
of the Ceremortial Association, had authority to and‘ had
withdrawn the consent of the Ceremonial Association for |
the plainuft Benson to remain on the Ceremonial grounds
handing out the leaflets.
34. Thaf* Johnson located Benson ‘and stated that-he
‘had been instructed by the -District Attorney to tell him to
stop handing out -the leaflets and that the District Attorney
had stated th, at Benson could be arrested if he continued to
_hand out the leaflets on the grounds. *-@
35. That Benson asked ‘for an opportunity to discuss
the matter with the District Attorney. Johnson took Benson
and introduced. Rich to Bensoneas the District Attorney and
stated that Benson, would like to know what his situation
‘ was.-Rich-advised Benson that the Ceremonial grounds was
private property, that permission for him to remain. on the
- - .
33 —
premises had been withdrawn, aad that if Benson did not
stop distributing the legélets on the premises 4 criminal com-
plaint in trespass. cotild be filed against him. Benson. fotlow-
ing these stdfements. made no oral reply but manifested his
agreement that he would stop Passing out leaflets on‘ the
Ceremonial grounds.
36. That-Rich told Benson he could distribute the leaf-
lets off Of the Ceremonial grotinds. Johnson asked Benson if
he had any questions or if he understood the situation to .
which Benson made no: reply. Benson and Johnson leit tie ;
room and Benson joined the plaintiffs Tracy and Hubbard,
Wito were on the Ceremonial grounds handing out leaflets. .
37. That Benson told Tracy and Hubbard what the Dis-
trict Attorney had.told him and Benson told- ‘Tracy and
Hubbard that they should eave the grounds to distribute
their leaflets. a, halt iS oe
38. That Officer atin told Benson. Tracy and Hub-’
bard they were welcome to remain on the grounds if they
would not hand out leaflets or that they could hand out the
leaflets outside the grounds to people coming onto the
grounds. : ;
39... That Johnson said Benson could inform other per-
sons handing out, the leaflets on the grounds of the position
taken by the District Attorney and that no one would be ar-
rested unti] they had been warsed to stop handing out the
leaflets on the grounds and an opportunity afferded to dis-
cuss the matter with the District ° Attorney if they so desired.
40. That Miss Hubbard Was joined by a friend. Kathy
Marmon, and started to hand Miss. Marmon a leaflet when : ¥
Officer Johnson lowered his arm to prevent her from: hand-’ /
ing Miss Marmon the leafet. Officer Johnson stated ° ‘Let's
go” and followed behind Tracy. Hubbard. Benson and Mar- |
— we +
'
co
- OF Saturday the 16th.
‘afreid of Officer Johnson because he was a pc
Pk Anel's , ; ,
ae 34. <t
mon at a distance of approximately fifteen feet as they ex-
‘ited from the Ceremonial grounds. Johnson kept a sufficient —
. distance between himself and ‘the plaintiffs so that it would
not appear to anyone who saw the plaintiffs feaviag the
grounds that they were being escorted by a police officer.
41. Officer Johnson's primary resporisibility on Satur-
d. 'y afternoon was to guard the funds in the ticket office
“near the front of the erandstanid. Officer’ Johnson followed
the plauintitfs from the Ceremonial grounds to make sure
thi npn left ihe grounds with the leaflets to avoid his hav-
ihe ' try to keep a continual lookout to make sure that they
were not h: inding out the leaflets on the grounds. ¥
“The § ‘defendant Johnson's action on August 16,
19689. was in accordance with Johnson's good ‘faith uader-
standing of his instructions from His supervisor and the Dis-
trict Attorney. ° e oF ae
43. Thai Johnson did not touch any plaintiff <
lime material herein other than on two or three ‘oc
any
asions
when he shook hands with Michael Benson or fat Brown
se did: Kauzlaric- or: DiGregorio, ever touch any of the
laintiffs at any time material herein. -
44. That Officer Johnson was friendly, and caurteous to
the plaintiffs at ail tintes and did- not use any abusive lan-
uate in the presenc ‘¢ of the plaintiffs. That all of the plain-
tiff, were courteous and polite to Officer Johnson and.
eated him with respect: “however.-all of the go oa were
lice officer
and not because of anything that he did on Friday the 15th:
|
ig e = "
“45. That ‘Kauzlaric and DiGregorto were fnjendly and.
courteous to Benson. ae
i
‘6, That defendant -Johnson’s conduct in-\executing
——-
eee
what he understood to be the instructions of the District At
torney was reasonable. . 4
47. That defendant Johnson did not arrest’ the. plain-
tiffs, or any of them, at any time. a .
#8. That ‘defendants, .Or any of them, did not wilfully,
knowingly, or purposely deprive plaintiffs, or any of them,
of any right or r privilege secured tq them by the Constitution
of the United States. cor of any right or privilege whatsoever,
49: That the Assodiation through Kauzlaric acting as:
President. of the Association acied under and in reliance
upon the advite and counsel of the-Assistant District Attor-
ney Rich in Rich S-cupacity as.Assistant District Attorney in’
withdrawing the Association’ S permission for, Benson to be
on the ceremenial grounds and. that said acts were done in.
good faith. “+
50. That under the facts and siesuieeniieis as, herein-
above set forth, all of = defendants acted 1 In good faith.
51. That at no time herein did the. deféndants or any of |
them threaten or harrass the plaintiffs or any of them.
52. That at no time during “August 15th or 16th. 1969.
und subsequent thereto, did the defendants or any of them
act in disregard of or in disdain for plaintiffs constitutional!
rights secured to them by the Constitution of the ‘United
States or laws thereof by improperly releasing, obtaining, in-
spiring or encouraging newspaper publicity as a campaign
against plaintiffs becaties of plaintiffs’ acts or conduct on oN
off the Ceremonial grounds on said dates:
7 - That the defendants, or any of them, did not indi.
ae or otherwise wilfully, knowingly, purposely or in
concert with others or otherwise, deprive. plaintiffs, or any.
of them, of any rights, privileges or immunities secured to
naa : .
them by the Constitution of the United States or of any right
or privilege whatsoever. ae: ,
54. That there is no evidence of a conspiracy.
ei e. ‘ é df
S55. That each of plaintiffs’ claims for monetary dam- |
ages are conjectural, insubstantial and totally speculative. | J
.56. . That the Ceremonial grounds or property owned by
~ the Association is not g public park maintained by- the State
ot New Mexico or any subdivision thereof for the conveni-
ence. use, and recreation of the residents of Gallup. and the:
general public. nor held out to be the same. eae
57. That the Cerenionial srounde 3 is nota public street,
way or park dedicated to public use and Is not a place open .
"to any person to be used as a public forum.
+ = 58>. . That the purposes to ‘winely plaintiffs attempted to
use the Ceremonial grounds. were inconsistent and contrary
to the purposes and.uses for which the Ceremonial, grounds
were dedicated-to be used and was'not the only place where
plaintiffs could have tr ansmitted their message. :
59. . That plaintiffs. suis August Sth. and -1l6th, -
1969, passed oui .the leaflets outside the Ceremonial
"grounds at the entrances thereto. and ‘on the city streets of
Gallup without any interv ention by ois persons...
* i '
CONCL USIONS wae... :
The Court has juris@ietion ovér the parties: and over
: te subject maiter of the Plaintiffs’ Amendéd Complaint. ok
2. ‘That at all times herein defendant Jack Johnson was
acting under color of law in the Zourse a and. scope of his em-
pleyment as a New Mexicg State Police Officer:
So! es defendant Jack Johnson was specifically autho- . -
mew.
_ tized by N.M.S.A. $64-3-11, 1953 Cong, and N.M.S.A.-
, $64-13-49, 1953 Comp.. to obtain plaintiff Brown's driver's
‘license and automobile registration on Friday. August '?,
1969. | ar . a
4, ‘After taeneiens a comment about burning the Ceremo-
nial’ Association dowsfgind having seen Michael Benson run.
. from the Ceremonial zrdunds. and attempt to hide from Of-
‘ ficer Johnson, these acts constituted an appropriate circum-
stance for Officer Johnson to approach Benson and Brown
to investigate possible canal behavior, and Officer John-
. son’s conduct in stopping the-car and requesting identifica-
tion Was, therefore-reasenable conduct by the police officer
- and was nota ‘violation of any: civil right or privilege and’
immunity guaranteed to the plaintiffs by the Constitution or’
any statute of the United States.
t:
3
3. That none of the plaintiffs objected to identifying
themselves to Officer Johnéon. Johnson’s obtaining their
‘identification ‘did not ¢onstitute a Violatign of aby civil right
or apy privilege or immunity guaranteed 0 plaintiffs by the
Constitution of the sangre Statdy or-by any statute of the ~
United States. Re : ‘
* That defendant Solneak did not detain plaintiffs
pone or, Brdéwn for any unreasonable length of time and
any détention for a conversation between the three-was con-
sented to by Brown.and Benson ahd as a result of such dis-
cussion on August 15, 1969, Johnson did not‘violate any -
privilege or immunity guaranteed to plaintiff Benson by the
Constitution of the se States or by any statute of. the
United States.
7. That Officer Johnson atic Sen andes all ‘i
circumstances on Friday night, August-15, 1969.’and his
; conduct did not constitute a violation of any privilege Or Hn--
7 munity - guaranteed to plaintiffs eeerneste, ot Brown. by the . -
n ‘
KS :
.
.
“5
. and orders of
. ._* ad oe sgl,
el
a Pn em ~ 38 —-
Constitution of the U nited States or by any statute of the .
United States.
“Ss Officer Jolson did not arrest ptainaiff ate or
Brown on Auzust 15.1969. or at any other Hime.
% In the eveni aut proBable cause should have been
“neces ‘ary for the conduct of Officer Johrson on Friday. Av-
gust-13. 1969. stich protwuble cause existed in his reading of
the leaflet. hearing the comment about burning the’Ceremo-~
nial facitity down, observing Benson run from the, group.
son in plaintiff Brown's cat.
-
, and seeing Benson’ . atten! to Pr from defendant John-
bh That defendant Johnson's actions were done in rea-
sbnale und good tith performance of his Lawful duties as -
> he undérstood them as a Staté Police Officer of the State of ©
* New Mexico, and. theretores defendant Johnson is nat fia-
hye tothe ‘plaintiffs for any violation of any, privilege ar im-
svunity guaranteed to platntifts by. the. Constitution of the
~ United Statesor BY any statute of the U nited States. °
>
el hai defendant Johnson was at all times on Satur- ~
pe phln 16. 1969. acting tor or at the express and im,
plied djreetians of the Assistgnt ‘District Attorney. a quasi-.
“judicial office, and with the express and i :
T upervisor at the New Mexfco State’ Police.
ied ‘direction
and defendant Johnsen is, therefore. immune for any viola-
tion of any privilege or immunity guaranteed to plaintiffs by
_ the Cofistitution of the United States or by any statute of the
United States." » r)
2: | That after defendant Association ‘throgsh vo.
spake as President of the Ceremonial . grounds, being the
lawful custodian of the grounds, rev
“permission fer Benson te remain dn
ved the Associations
> grounds handing
out the leaflets. Ws continued pitsence on the ee hand-
*
*
é -
: —39— -
_ing Out the leaflets would have constitejed a crimina} igs
Pass under the laws of the State of New Mexico aad Benson
could have been prosecuted for criminal} trespass. '
13. That™ after defendant Association through Kau-
’ Haric, as President of the Ceremonial grounds. being the
lets would have gpnstityted the misdemeanor-of" wrongful
use of public property and it was the dujy of defendant
Johnson to attempt to prevens the ce misde-
the peace.
14... That it was the duty of defendant Johnson to exe:
. \eulte the express or implied direction of the District Attor-
ney to make’sure that the leaflet was not distributed on the
Ceremoniat grognds on Saturday* August 16. 1969. >
13. That if there was any. violation ef any-right, privi- .
legg, or immunity secured to Benson ‘by the Constitution or
. draw his consent for Benson to remain on the’ grounds and
hand out leaflets, and that the acts of Officg, Johnson in de-
termining that such legal decision was co ied with wore —
done in regsonable and good-faith performance of his lawful
Wuties as a State Police Officer, and defendant Jack Johnson
is not liable to Benson or the. other plaintfifs for, any viola-
tion of any privilege or immunity guaranteed to plaintiffs by
the Constitution of the United States or by any statute of the
United Siates. > “re - |
« 16. That if there was any violation of any right. privi.
lege. or immunity secured to Benson by the Constitufion or
. Statutes of the United States. then sich rights would have
* ° ba . -
‘e
—0— |
been violated by the legal decision made ‘by the District Ate
‘tornéy. to-wit. that the defendant Kauzlaric had authority to
“Withdraw his consent for Benson to remain on the grounds
— and hand oft leaflets. and the acts of defendant Johuates
°
were the result of an honest misunderstanding of his-legal
duties or an honest mistake of law and fact without realizing
that his conduct might result im depriving Benson or the
other plaintiffs of-any rights or privilegos secured to them by
the C onstitution ar statutes of the United States and Cae
-ant Jack Johnson is not liable tothe plaintitis.
17.* That gefendant Johnson: did not arrest any. ot the
plaintiffs and. therefore, probable cause is not an element to ~
consider - ee age ,
18.° That none .of: the plaintiffs were threatened, har-
assed or intimidated by the defendants. or any of them.
19. That Kauzlaric and DiGregorio did not know nor.
were they required to know that their actions could conceiv-
ably be construed by Benson. as depriving Benson of his con-
stitutional rights.
, 20. That none of the plaintiffs were ‘removed from the
Ceremonial grounds by or at the request of the Association,
_ Kauzlari¢, DiGregorio or Merry. nor were plaintiffs other-
wise threatened: or intimidated by the Association, Kay-
zlaric, DiGregorio: or Merry.
21. That the defendants at all tithes hereto acted taw-
fully. reasonably and with the good faith belief that thejr ac-
tidns were required in order to Protect against vielation of
_ the public peace and order, and in order to preserve the C er-
‘emonial Ass sociation’s property.
22. That the Ceremonial grounds i is not a public street,
- way or park dedicated to public use and is not a plate open
to any person to be used as a public forum .
ae. Rem
: 23. That the purposes & which plaintiffs attempted to
ase the Ceremonial sounds were inconsistent and contrary
to the purposes and -usd for which the Ceremonial grounds
are dedicated to be used nd plaintiffs did and could hive
transmitted their message at other places other than the Cer- °
snionial grounds.
24. That the leatlet. and the conduct of the plaintiffs in
connection “therewith? wa$ caleulated to produce ‘disturb- -
ance Or interference with those in attendance at the Ceremv.
= 7
nial. . a :
- , .
25., That with thousands of spectators and Indians pres-
ent and with due regard to the time and manner in which
the leaflets were being distributed. and the impact upon
those persons attending the Céremonizl activities” including
those of Yndian descent, the incidents that occurred prior.
during and. after the August 15, 1969. jncident with’ Ben-
son, Kauzlaric had reason to anticipate that the continued
handingout of the leaflets would Causea Substantial disrup-
. Hon or material interference with the Association's activities
-
and, with que régard to the obligation of the Association to -
provide a safe placé for the viewing of the Ceremonial, his*
conduct as President of the Association was required and
said conduct and acts were reasonable, performed in good
faith and in reliance upon the ‘advice of the Assistant Dis-
trict Attorney. © tt ee
26. * That defendant Association, through fts representa-°-
lives, has the Sowef to preserve the Ceremonial property for
_ the use and purposes for which it was lawiully dedicated:
The plaintif€s’ acts, conduct. purposes and use of the Asso-
_ciation’s property was completely contrary to the uses ‘and
_ purposes for which the Assoeiation’s property was lawfully’
dedicated by the State of New Mexico aind the Association,
Plaintiff fight to use the Ceremonial. grounds is a qualified
>.
% .
‘
2
-
_ here involved.
oe
right or privilege and subject to reasonable regulation by of-
ficials wi the Ceremonial Association and clearly subject to
revocation with due regard to the facts and circumstances
~ That the, Association is an agency of the State of
ew Mexico and ts not a person within the contemplation of
epplicable Federal and Civil Rights statutes, and this action
“TS g@ suit acaimst a sovereign which has not consented to be
sued and the defendants Kauziaric. DiGregorio and Merry
ure sued in their official capacities, ind this action as to all
defendants should be dismissed. ; Hs
28. NO monetary or other damages can be Sound against
the As-ociition. ; an
20. There is no evidence that the Associdtion. Kaw-
zlari¢. DiGregorio of Merry acted ander color of stgte law:
Sialutc, ordinance. or custom to deprive the plaintiffs, or any
of them. of their rights. privileges Or timmunities secured to
them he the C onstitytion of the L'nited States 0 or aay Siatute
thereof. » -
Bh
+ 30.° Plaintiffs claims tie relief fail to state a faim upon
which relief canbe granted against any of the defendants.
Association, Kauzlaric, DiGregorio, Merry or Johnson.
31. The acts and conduct of the plaintiffs at the times
‘und under the Circumstances as they existed. were per-
_ formed in such manner that they were. not constitutionally
protected and the acts of the defendants Association, Kau-
Alaric. DiGregorio and Johnson under such circumstances
did not depfive-plaintiffs of their constitutionally protected
or other civil Tights and privileges. —
32. That the defendants Merry and DiGrggorio did not
violate any rights, privileges or immunities secured to, plain-
tiffs Brown. Hubbard or Tracy, by the C onstitugon of the
United States or any statute of the United States. :
a
ce
—43— - * 5
c
33. That the defendani Merry did not -violate any
* rights. privileges or immunities secured to the plaintiffs by
the Constitution of the United States or any statute of the
United States, 2 2)
‘4. That if plaintiffs were engaged in constitutionally
Protected activities or they ‘were deprived .of their civil
rights, the actions of defendants Association, Kauzlaric
DiGregorio and Johnson were done reasonably and in goe
faith in the performance of their duties as they undersiood °°
+ thew) in reliance upon the advice of the Assistant District
‘ Attorney without avy intent whatsoever to deprive plaintiff.
of any constitutional rights or ‘other civil rights and privi- °
léges. and without the réalization that their conduct might
result in depriving plaintiffs of such rights and- were. there- — ,
fore privileged. - .
35, © That there is no actual justiciable controversy here -
-involved. oe
36. That ‘none ‘of the plaintiffs suffered any compensa-
tory damages as-a direct or indirect result of any act or
omission. of defendants Association, Kauzlarie. DiGregotio.
Merry or Johnson.
-37.. That any damages which glaintifis may have suf:
. fered areconjectural, speculative and insubstantial.
_ 38. That plaintiffs are not®entiiled to receive punitive
dlamages from any of the defendants. ‘
. ‘ 7h .
-+. 39. Insofar as injunctivé relief ig requested:- the plain-- .
" Uffs have not suffered irreparable injury and have a plain.
- adequate and speedy reniedy at law,
40.- That on-August 15th and 16th. 1969. the acts and.
conduct of defendants Were not a violation of any rights,
privileges or immunities seyattd. to plaintiffs: Bensor,
' ‘ }.% —
s—_—
a.
sea Yea
Brown, Hubbard or Tracy by the CinGbiilin of ae United
States or dny statute of the United’States: .
. $A. hat the plaintiffs at ail times were given the same
_ right tofand the full and equal benefit of all laws and pro-
-ceedings far the sec urity of: their person and property as are:
enjoyed by white.citizens. . . **
42/ That ‘there was no conspiracy among: the ‘defend-
ants to deprive plaintiffs..or any ef them, either directly or
indirectly. her were ‘any overt acts doné by plaintiffs pur-
‘ suant to a conspiracy to deny plaintiffs of any rights. privi-
eges or imnrunities under the Constitution and laws of. the
United States, or the equal protection of the laws or of equal
> privileges and immunities under the laws of the United
\ States or the State of New Mexica.
Oo
43. That the defendants have not violated any of the
plaintiffs’ rights under 42 U.S.C. iscnity 198k. 1983,
1985 ¢- 3). : : ;
‘ 44. That the defendants are not liable ‘to the plaintiffs
and judgment will be entéred dismissing the complaint. .to-
“gether with the cause. ar |
Dated this 7th day of Acar 1970.-
EWING T. KERR,
Judge, United States BE Court.
" assigned
—- 45 —
APPENDIX C
[448 F.2d n 371} °
UNITED STATES COURT GF APPEALS
TENTH- CIRCUIT
September Term, 1971.
MICHAEL Buccs: Linda HUBBARD. ima
JUNE Tracy, for themselves : and on behalt
“Ot a*elass of persons similarly situated:
Eppte Brown, Guardian Ad Litem for
minor ‘plaintiffs Michael: Benson. Linda
Hubbard and June Tr: icy. FrkeED
United State*
Plaintitfs- Penn neat saaegee
Appeals
: ; Tenth Circuit
Vs. 7 ea Oct. 18. 1921
- ; ‘ HOWARD
<3. Pe eae K. PHILLIPS
JOSEPH L. Rich, Epwarb S. MERRY. JACK Clerk
JOHNSON. Curis DiGreGorio, RICHARD
KAUZLARIC ‘and THE INFER-TRIBAL .
INDIAN CEREMONIAL ASSOCIATION, a cor-
poration, ~- . ; Mae
: Defendanis:A stescves.
APPEAL FROM THE UNITED STATES scat
; of ee
FOR THE DISTRICT OF NEW MEXICO ©
(No. 8215 — Civil) .
Donald Juneau, Window Rock. Arizona (Willard F. Kitts,
Albuquerque: ah Mexico, with him on the ama), =a Ap-
pellants.. ;
* Kenneth Hartigan, Albuquerque. New: Mexico, for Appel- -
lee Rich: > Paul D. Gerber, Santa Fe; New Mexico (Harl D.
46 ae fo
ye eo,
- *
ge
. Byrd. 5 ae Fe.-New Mexico, with ae on’ the bricf Y, for
‘Appellees Merry. DiGregoaio. Kauzlaric and the: Inter-
Tribal Indian Ceremonial Association; Robert G. Mc-
Corkle, Atbuquerque, New Mexico. for ‘Appellee Johnson.
Before MURRAH, Pic KBFT amd DOoYLF. camel ges.
PICKET . Circuit Judge. Bee Tk Y
Phe appellants*in this civil rights case are four young Na-
vajo Indians who allege that their constitutional rights were
infringed upon when officials of the Inter-Tribal Indian Cer-
emonny '\ sociation prevented “them from distributing
print leafleis during an Indian Ceremonial at Gallup,
ew: Mexico during the month of. August, 1969. in‘ their
compl 1¢ appellants sought injunctive relief and’ dam-
ges 7 he 4 Gction was.disnt@®ed ‘as to two of the defendants -
1 in summary proceedings @d after’a trial on the merits the ©
court held -that the actions of the Association officials were
not ef such a.naturedas-to deprive any of the appelkants of
constitutional rights und entered judgment for the appellees.
We conclude that the record supports the court's findings. It
s. therefore. only necessary to discuss herein the issue per-
tain ining to the constitutional question. “Sates ieee
The € ‘eremoniak i is recognized throughout the- United *
States 2 iS ‘an outst: senile hobo function. ‘Ii consists of four”
days. of ‘rodeos. arts and ‘crafts>exhibits, “parades, Indian®
da inces’and other related’ performances and activities: The
vubhic is-invited and is admitted to the grandstands on. the:
C eT remopial Grounds upon payment of an admission charge.
Attendance at each perform? mee is about 8.090 persons, a
Suns tansal percentage of whom are of Indian descent. *
?
he AssOciation is an official state agt¢ncys one: ted by N.M:S.A,’§ 73-31- 1 (1953.
Comp.). 6% a non prot it corporation: crested for the purpose ‘of encoprraging,
theepreservation and development of Indian arts and crafts among the Indian
trikes of the State of New Next A ftirther purpose is to encourage the,
preservation of traditional. rte paar ceremonials of “Indian tribes and pueblos,
and to.afford am opportunity fi 9 the development of knowledge and *epprecia-
tom of Indian nrts, craffs. rites and ceremonials among other people. The
€ ceremonial at,Gallup has been an annu l affair since 1922
—47—. c
_ Appellant Benson was critical’of the manner in which the
Ceremonials were-Conducted und decided t6 express his
views to those in attendance through the distribution of a
leaflet which he had prepared. and had printed. In the distri-
bution of these leaflets he enlisted the help of friends. in-
cluding the other appellants.’ The leaflet was entitléd: °
“When Our Grandfathers Carried Guns.” The first sentence.
_.-tead?"Witen our grandfathers carried guns, they were free °
_ and they were people.” Another sentence read: “If we the
‘ Indians ef today were like Our grandfathers." we would not :
| allow this Ceremonial to be held year after year in this man-
< ner and at this ptace.” Many of the leaflet statements were
ar _. emotional and highly ¢ritical of the Ceremonial and the gen- —
_ eral treatment of Indians “by the people of .Gailup. It con-.
cluded With the.statément in reference to the Indians that .
- “They were’people .. . when their grandfathers Had guns.”
The “Ceremonial Officials had no advance information
that the leaflets were to be distributed and it.was: cailed-to
their attention for ihe first timie wheneBenson was observed
in andrea where large numbers of people Were. entering and
leaving the grandstand. Witnesses described Benson’s action |
as blocking: the entrance and was referred to by One witness
as a disturbance. There was testimony to the effect that the
leaflets .were being “stuffed” into the -hands or arms of
- people.* Thereafter there Was a conference between Benson —
_and appellees DiGregorio, grandstand supervisor. ‘Kau-
_ alarié, Association president, and Johnson. a police officer:
-. The discussion was fmendly and Benson left after it was
agreed that the- distribution of the leaflets on ‘the Ceremo-_
“The eyidence shows that alb the discussions relating to thé distribution of the
‘leaflets. were between Benson and some_of the appellees. with no contact of.
any kirrd with other appellants. 2 : aint
“The trial court found that when Benson was first obs¢rved ‘handing: out leaf-
letsshe was standing near the exit aisle of thé main entrance to the grandstand
during intermission and was “obstructing the” orderly flaw of the pedestrian
‘Wathiic> paints vt : : be -
:
—48—
om
-
jal Grounds’ would be discontinued. Immediately there-
‘affer Benson joined a group of young Indians, all of. whom.
engaged in a discussion concerning the leaflet. Benson told
group would tear apart or burn down the Ceremonial. facill-
ties. Shortly thereafter they all left the Ceremonial Grounds.
fee The following day Benson and others a
Ceremonial Grounds and began handing out the leaflets.
Kauvlaric then discussed the matter with an assistant state
district attorigpy concerning the impact which the material |
in the leaflet might have upon people generally, and particu-
latly those of Indian descent. This discussion. included a re-
count of the remark about tearing apart or-burning down
the facilities which had been heard previously by Officer
Johnson. The assistant district attorney concluded that the
leaflet “ as fa “call to arms” to the Indians and believed that
i) was necgssary that the’ distribution be halted to ‘prevent.
possible diorders or riots on, the erounds.' It was agreed
“in their activities, arrests should be made. This information
was conveyed to’ Benson, wheredan he and others. discon- |
pe. tinued the distribution of the, lééflets on” the Ceremonial
Grounds and left. No arrests were made. No attempts were
; “Phestrial court found.
“Phat the Assistant District Attorney interpreted the contents. of the
leafict to amonnt te a call to arms and under the circumstances and the impact
; vehich the leaflet could have upan the’ thousands of people, including many of
eS lndien descent. arriving jor the alternoon performance: on August 16, 1969,
and the events of August 15, 1969, the Assistant Distriet Attorney believed that
4 ‘substantiak disruptive material interference could develop and lead to a riot
Siturtion and upon being informed by ,the District -Attorney that the Cere-
menial grounds were private property advised’ Jhauzlartc that he, as President
- @f the Association. -ould withdraw Benson's permission te be on the Cere-
moninl grounds if he. continued to pass out the leaflets and if Benson continued
to do so then a Criminal complaint could be made by the Association and
Benson could be arrested for criminal trespass. Based yipon this advice Kauz-
laric informed Johnson that ‘Kauzlaric, as President of the, Association, was
denying Benson's permission to. be on the og if he continued to “pass out
the leaflets.” a ' - ;
the group. “That cop took away my leaflets.” A member of ,
7 . the group was heard to say that it ‘Benson so desired, the -
ppetred at the °
that if Benson and his followers, after a warning, continued,
“e
ae |
ee ee
inade to prevent the circulation of tke leaflets. at any y place
_ except on the Ceremonial Grounds near the’ ‘grandstands,
and the evidenée confirms that they were widely distributed
throughout the City of Gallup, particularly ajong a street
parade route, a
'
“The law is tied that the distribution of Bempiiiets aad
leaflets is a form of communication protected hy the Kirst
Amendment and ° ‘solong as ihe means afe peaceful, the
communication need not meet standards of acceptability” to
) others. Organization for a Better Austin v, Keefe, 402°U:S..
415 (1971): Lovell] Vv. Gritfin, 303 U.S. 444 | 1938). Nei- -¥
ther- does: the desire’ to avoid the-discomfort or inpleasunt-
ness which a communication may contain: if it does not*in-
terfere with the orderly function of a ‘public activity. justify
the prohibiiion of the particular expression of views‘or opin-
ions. Tinker v. Des Moines School District, 393 U.S. 503,
509 (1969). It is equally well settled that the state has the
power to proteet and preserve its propefty for the use to
which it was dedicated, and there is no constitutional reght
to distribute pamphlets or lealfets whenever or wherever ;
" one pleases. Adderlvy'v. Florida, 385 U.S. 39 (1966). The
right of free speech does not mean that everyone with opin-
ions or. views May express them at any public place or at any
. time. “The constitutional guarantee of liberty implies the
_ existence of an organized society. maintaining public order. .
- without gee liberty itself would be lost. in the: é excesses of |
anarchy. * tof Yea restriction in that relation: designéd to
promote the ie convenience in the interest of ali, and
not susceptible to abuses of discrimimatory. applicdtion, can-:
not be disregarded by “the utiempted exercise Of some civil
right which. in other circumstances, wouhl be entitled ‘to .
protection.” Cox v. Louisiana, 379 US. 536. 554 (1965):
- American Communications Assm., C.LO., Vv. Douds, 339
US. 382. 3891950), e,
-—
.
as 50 ani
The officials ; in inti of the Gallup Cefemonials were
familiar with the possibility of violent disorders which could
erupt as a result of distribution of inflammatory Statements .
during the ceremonies. They believed that the inflammatory
Statements directed. against the officials and people of the
~~ City of Gallup could anger a large segment of individuals
attending the ceremonies and ‘create a’ riotous situation.
They were aware of a-statement made to Benson by one of a
- group of young indians to the effect that upon a suggestion
from Benson, the Ceremonial facility would be torn apart of
burned. The officials were concerned because Benson, aftér
agreeing not to distribute the leaflets on the Ceremonial
Grounds, had renewed his activities without further consult-
ation with the officials: Under these circumstances, those in
charge could take reasonable and good faith action to pre-
vent.a disastrous situation which they had reason to believe
— coul Id occur. The trial court found that these conditions ex-
isted and the sufficiency. of the evidence to sustain the find-
ings is not questicned.
. : “ z wv
There w4s.a clear and present danger, of violence and dis-
order and fhe officials were not. required to wait until the
feared conditions actually happened to take preventive ac-
tion. In a somewhat similar situation, the court said, in Nor-
ton v. Discipline Committee of East Tennessee State Uni-
versity, 419 F.2d 195, 199 (6th Cir. 1969), cert. denied,
399 U.S. 906 (1970): “Iti is not required that the college au-
thorities delay action against the inciters until after the riot
has~started and buildings. have. been taken over and dam-
aged, The-callege authorities had the right to nip such ac-
tion in the bud and prevent -it in its inception. * * *” In Fei-
ner v. New York, 340 U.S. 315 (1951). the Court, quoting
from Cantwell v. Connecticuit,-310 U.S. 296 (1940), used
this language: “No one would have the hardihood to suggest
=
_that the principle of freedom of speech sanctions incitement
| '
to riot or that religious liberty conhotes the privilege to ex-
hort others to physical attack upon those belonging to an-
other sect, When clear and present danger of riot, disorder.
interference with traffic upon the public streets, or other im-
mediate threat to public safety, peace, or order. appears, the
power of the State to prevent or punish is obvious.”
- - Communities have an interest in maintaining peace and
order in their areas, particularly on public property. Indeed.
they have that duty, but the free discussion and dissemina-
tion of ideas and opinions cannot be suppressed under the -
guise of conserving the peace. The principle involved in Fei-
ner v. New York, supra, is similar to the one Presented here, ©
and the following statement of the Court is appropriate: “It:
‘is One thing to say that the police cannof be used as an in-
. Strument for the suppression of. unpopular views. and an-
other to say that, when’ as ‘here the speaker passes the
bounds of argument or persuasion and undertakes incite-
ment to riot, they are ‘POW@ess to prevent a breach of the
peace. * * ** Feiner v. New York, 340 U.S. 315. 32]
(1951). The action of the public officials was not directed
. toward the dissemination of ideas ér opinions, but solely to
maintain peace and’ order on the Ceremonial Grounds and
the prevention of violence and a riotous situation. No at-
tempt was made to prevent the circulation of the leaflets
- elsewhere. *. .
AFFIRMED.
ae ee
APPENDIX D
_ WHEN OUR GRANDFATHERS CARRIED GUNS. . .
When our: grandfathers carried guns, they were free and
Yhey were people. The Anglos had to reckon with them and
the Anglos were careful not to anger our People. Our grand-
‘fathers stood up for what they felt was right and they con-
demned. what they knew was wrong. If we the Indians of
today were like our grandfathers, we would not allow this onl
Ceremonial to be held ~~ any year in this manner and at
this place.
The* Cannes tiecdbahee levee picture of the Indian.
Just because Indians sing and dance for you, that does met .
mean that they are happy. The City of Gallup calls the Cere-
monial “A: Tribute to the American Indian.” Do not believe
it. At the night performances, you will hear what a proud
and happy people we are. Do not believe that either. Do not.
think that The City of Gallup respects: the Indian because it
gives them a free barbeque. =
Do not let the Ceremonial let you forget that Indians have
the highest unemployment rate in the country, the highest
infant mortality rate in the country, the lowest average in-
come of any group in the United States, the highest suicide
rate in the country, the highest dropout rate, in the,U,S-. and
' don’t forget that many ‘of the Indians you see ary’suffering
from mainutsition. You will see many drunk [fdians. Ask
yourself why you see so many. Is it because they are happy
and proud? ? |
“You should also ask yourself why the Ceremonial is held to
benefit the City of Gailup, N.M. Ask yourself why Indians
are not in charge of the Ceremonial: Ask yourself why the
Ceremonia! is not moved to an Indian reservation; since
there are so many of them in the area. If you are brave
enough to see what what the City of Gallup thinks of the In-
dian, find out where the Gallup Indian Community Center
is located and see it for yourself. Note that it is dirty and in
need of repair. In-a study made of the economy of Gallup |
last-summer it was learned that about:72% of the business
was carried on with Indians as customers. It was also
learned that the merchants of Gallup contribute very little
to the Indian Center. | jae ca Df
Gallup provides little in the way of public services to the.In-
dian. The City policeman are seen Many times re
_beating helpless drunktIndians: But Gallup continues to call - a
itself the “Indian Capital of the World.” Recently Gallup S|
decided it needed a flag. Most of the entries so far make use -
of Indian designs and figures and most are designed: by non:
_ Indians. The Ceremonial is only one example of how Gallup
capitalizes on the Indian. : ; |
You will see many Indians at the Ceremonial and you will
ask, ““Why don’t they protest?” . a
The answer is that we have learned that it is useless to ask
for better things and so we settle for what we are given. «>
As you look at the drunk Indians and as the Indians dance
and sing for you and as you hear what a happy people they
are, Say to yourself: “They were people .:. when their
grandfathers had guns.” re '
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.