# Petition for a Writ of Certiorari — Benson v. Rich > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0444%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 405 U.S. 978 ## Text ® 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 “§. 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 ‘§ 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 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. . . 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 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- 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 ' --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0444%3A1. Public record. Not legal advice.