Appendix — O'Shea v. Littleton

“epitopes SAIL tale canst I a

ive

eet

a dil ih:

* A6

‘SPOMER and ©’SHEA CONDUCT

Spomer and O'S bea, as judges, engage in a pattern and

practice of discriminaic:, conduct based on race as fol-

lows: They set bond in criminal cases by following an un-

official bond schedule without regard to the facts of a

case or circumstances of an individual defendant. They

sentence black persons to longer criminal terms and im-

pose harsher conditions than they do for white persons

who are charged with the same or equivalent conduct.

They require plaintiffs and members of their class, when

charged with violations of city ordinances which carry

fines and possible jail penalties, if the fine cannot be paid,

to pay for a trial by jury.’

We have attempted in the foregoing summary to provide °

a condensation of the principal allegations of a 21-page

complaint. We do not commend the amended complaint

as a model of pleading but we also recognize that un-

charted fields were being plowed. Matters of which an

entire community may be cognizant may well pose almost

insuperable difficulties when the attempt is made to artic-

ulate these matters into the ‘‘short and plain statement”’

required by Rule 8(a), Fed. R. Civ. P.

It has been said that in Civil Rights Act cases, highly

specific factual averments are required to defeat a motion

to dismiss, otherwise ‘‘every complaint against a State

official by the simple expedient of averring conclusions

would be cognizable in, the federal courts under the Civil

1. Since Tate v. Short, 401 U. S. 395 (1971), it has been unlaw-

ful to convert a fine into a jail sentence for those who are unable to

pay. Nor is there any constitutional requirement of a jury trial for

offenses which do not have a potential jail sentence. Baldwin v. New

York, 399 U. S. 66 (1970), and Argersinger v. Hamlin, 40 UL S.

L. W. 4679, 4680 (U.S. June 12, 1972). Thus, nuless plaintiffs are

alleging that only they and members of their class were forced to

pay for jury trials in this context, there has been no constitutional

deprivation on this point.

AZT

Rights Act.’’ United States ex rel. Hoge v. Bolswmger, 211

F. Supp. 199, 201 (W.D, Pa. 1962), aff’d, 311 F. 2d 215

(3rd Cir. 1962), cert. denied, 372 U. S. 931 (1963).

Nevertheless, we recognize the underlying motivation

of federal pleading to be to avoid the semantical donny-

brooks inherent in differentiating what is evidence, ulti-

mate facts and conclusions of law and fact. See 5 Wright

& Miller, Federal Practice and Procedure: Civil § 1218,

at 133 et seq. (1969). We deem it preferable that dis-_

missal should be sparingly used whenever it appears that

a basis for federal jurisdiction in fact exists or may exist

and can be stated by plaintiff. Wright & Miller, supra,

§ 1214, at 107. This, of course, does not provide a carte

blanche for unlimited successive complaint amendments,

and the ultimate duty of pleading his case rests upon the

party and not upon the district court to divine what is not

reasonably there.

The approach which we find should be applied here is

aptly stated in Kamen Soap Products Co. v. Struthers

Wells Corp., 159 F. Supp. 706, 713 (S.D.N.Y. 1958), as

follows :

‘*While the complaint is prolix and contains a large

amount of unnecessary detail and evidentiary matter,

it clearly apprises defendants of the claims they are

called upon to meet. Motions to dismiss under the

Federal Rules on such grounds as tlrese are not

favored.’’

See also Byrd v. Bates, 220 F.2d 480, 482 (Sth Cir. 1955).

The appeal here is taken from the dismissal which the

district court rested on two grounds, lack of jurisdiction

and judicial immunity. It is the propriety of this ruling

which is all that is before us and which we now consider

in the light of the applicable law. We do not, as we have

already indicated, venture any opinion as to whether the

plaintiffs will be able to prove the concerted pattern

A8

of officially sponsored racial discrimination under color

j of law, custom and usage as here alleged.*

LACK OF JURISDICTION

The distrigt court treated the case insofar as an in-

junction was sought as being an effort to have the federal

court sit as a court of review over the acts and actions

of duly elected county officials.

The court’s memorandum and order states in part the

following:

‘«. | . What plaintiffs seek in their request for in-

junctive relief is merely to have this Court submit

its judgment for the judgment of the above-named

elected officials of Alexander County. Under the cir-

cumstances here presented, the Court does not have

jurisdiction to entertain such a cause.

‘Plaintiffs cite cases in which federal courts have

enjoined acts of elective state officials under certain

circumstances, not here present. However, in none

of the eases cited have the federal courts been granted

power to substitute their judgment for that of the

elected state officials. The matters complained of

in the amended complaint as against the above-namegl

elective officials are at most discretionary acts on

their part.

‘« Accordingly, that portion of the complaint seeking

injunctive relief against the associate cireuit judge,

magistrate, state’s attorney and assistant to the state’s

attorney will be dismissed for failure of jurisdiction

in this Court.’’

The amended complaint primarily involves federal juris-

29 The term ‘‘creed’’ is used jointly or alternatively with

‘<pace’’ throughout the complaint but we fail to discern any basis

for the use and the complaint seems bottomed only upon racial

discrimination.

a

A9

diction under 28 U.S.C. § 1343(3) and (4)° giving federal

jurisdiction for deprivation of federally protected civil

rights. In our reading of the complaint, violations of these

rights have been alleged.

The test for determining whether jurisdiction exists is

set out in Bell v. Hood, 327 U. S. 678, 682-683 (1946) :

‘* Jurisdiction, therefore, is not defeated as respond-

ents seem to contend, by the possibility that the

averments might fail to state a cause of action on

which petitioners could actually recover. For it is well

settled that the failure to state a proper cause of

action calls for judgment on the merits and not for a

dismissal for want of jurisdiction. ... But as we have

already pointed out the alleged violations of the

Constitution here are not immaterial but form rather

the sole basis of the relief sought. Nor can we say

that the cause of action alleged is so patently without

merit as to justify, even under the qualifications noted,

the court’s dismissal for want of jurisdiction.”’

»

28 U.S.C. $1343 reads as follows:

‘“The district courts shall have original jurisdiction of any

civil action authorized by law to be commenced by any person :

“_

(3) To redress the deprivation, under color of any State

law, statute, ordinance, regulation, custom or usage, of any

right, privilege or immunity secured by the Constitution of the

United States or by any Act of Congress providing for equal

rights of citizens or of all persons within the jurisdiction of

the United States;

(4) To recover damages or to secure equitable or other relief

under any Act of Congress providing for the protection of

civil rights, including the right to vote.”’

Under this section, there is no requirement that the amount in

controversy exceed $10,000. Jones v. Alfred H. Mayer Co., 392

U. S. 409, 412 n. 1 (1968).

Plaintiffs also invoked 28 U.S.C. § 1331, which provides for

federal question jurisdiction where the amount in controversy

exceeds $10,000. Since there is doubt as to whether any of the

claims for damages can be affirmed, we rest our finding of federal

jurisdiction on 28 U.S.C. § 1843,

agp? Bor 5

A10

The present case clearly fits the above language from

Bell v. Hood, and we must, therefore, hold that the district

court erred in dismissing the complaint for want of juris-

diction as the alleged constitutional and statutory viola-

tions do ‘‘form the sole basis for relief’? and the action

is not ‘‘so patently without merit as to justify’’ the court’s

dismissal.

JUDICIAL IMMUNITY

In dismissing the case, while there was reference to

want of jurisdiction, the district court’s opinion stressed

that the complaint sought to review matters of judicial

discretion. It would seem that the dismissal was, in re-

ality, one for failure to state a claim upon which relief -

could be granted, Rule 12(b) (6), Fed. R. Civ. P. It is on

that alternative theory for the district court’s actions

that we will proceed.

Defendants contend that as judicial and quasi-judicial

officers they were not liable in civil suits at common law

and that the various civil rights acts did nothing to change

this rule. Thus, we must first examine the legislative

history of those acts to determine whether or not alle-

gations such as those in the complaint before us were

intended by Congress to be actionable. Simply stated, that

question raises to issue whether or not Congress, in

passing these acts, intended to eliminate the doctrine of

judicial immunity. With that necessary background, we

can then consider subsequent judicial decisions wHicth have

added substantial glosses to these statutes.

When Congress convened, in December 1865, it faced a

country that had been torn asunder by a great war. Un-

doubtedly to many members of Congress there was a

clear threat that one reason for fighting the war, freedom

and equality for blacks, might be lost. The first reaction

of the South to defeat and emancipation had been shock

All 4

and ‘‘a simultaneous withdrawal of both races from the

enforced intimacy and the more burdensome obligations

imposed by the old regime on each [race].’** However,

this reaction was shortlived:

‘“The temporary anarchy that followed the collapse

of the old discipline produced a state of mind border-

ing on hysteria among Southern white people. The

first year a great fear of black insurrection and re-

venge seized many minds, and for a longer time the

conviction prevailed that Negroes could not be induced

to work without compulsion. . . . In the presence of

these conditions the provisional legislatures estab-

lished by President Johnson in 1865 adopted the

notorious Black Codes. Some of them were intended

to establish systems of peonage or apprenticeship

resembling slavery.’

When Senator Trumbull of Illinois, Chairman of the

Judiciary Committee, introduced S. 61 on January 5, 1866,

it was with the view that-strong legislation was necessary.

This bill, which was fo become the Civil Rights Act of

1866, sought to eliminate both state laws and _ private

conduct which discriminated on the basis of race. In

introducing the bill, Senator Trumbull ‘‘described its

objectives in terms that belie any attempt to read it

narrowly.’’ Jones v. Alfred H. Maner Co., 392 U. S. 409,

431 (1968).°

4 © Vann Woodward, The Strange Carcer of Jim Crow (2nd

revised ed. 1966), 22.

5. Id. at 23.

6. ‘‘Mr. President. I regard the bill to which the attention of

the Senate is now called as the most important measure that has

been under its consideration since the adoption of the constitutional

amendment abolishing slavery. That amendment declared that all

persons in the United States should be free. This measure is in-

tended to give effect to that declaration and secure to all persons

within the United States practical freedom. There is very little

importance in the general declaration of abstract truths and prin-

ciples unless they can be carried into effect, unless persons who

are to be affected by them have some means of availing themselves

of their benefits.’ Senator Trumbull, Cong. Globe, 39th Congress,

1st Sess., 474.

- Al2

Title 42 U.S.C. §§ 1981 and 1982 derive from the Civil

Rights Act of April 9, 1866, ch. 31, § 1, 14.Stat. 27.7 “In

the House, as in the Senate, much was said about eliminat-

ing the infamous Black Codes. But, like the Senate, the

House was moved by a larger objective—that of giving

real content to the freedom guaranteed by the Thirteenth

Amendment.’’ Jones v. Alfred H. Mayer Co:, supra, 392

U. S. at 433.

In essence, what §1 of the Civil Rights Act of 1866

intended was to eliminate those badges and indicia of

slavery which were still a part of both Southern law and

custom. Civil Rights Cases, 109 U. S. 3 ( 1883). But, not

until Jones v. Alfred H. Mayer Co.., supra, did the Supreme

Court agree that Congress meant what it said in 42 U.S.C.

§ 1982, which by its own terms encompassed all racially

motivated refusals to rent or sell without being limited

to those acts sanctioned by the state, ‘under color of State

law.”’

For the present case, the more important aspect of the

Civil Rights Act of 1866 was § 2, which became Title 18

U.S.C. § 242.8 As originally enacted this section provided,

“*§2. And be it further enacted, That any person

who, under color of any law, statute, ordinance, regula-

tion, or custom, shall subject, or cause to be subjected,

any inhabitant of any State or Territory to the depri-

vation of any right secured or protected by this act,

or to different punishment, pains, or penalties on ac-

7. Title 42 U.S.C. § 1981 was reenacted with some additions

after the ratification of the Fourteenth Amendment as the Civil

Rights Act of May 31, 1870, ch. 114, § 16, 16 Stat. 144. Nan Mateo

County v. Southern Pacific R. Co., 13 Fed. 145. 151 (CC. Cal.

1882). Title 42 U.S.C. § 1982 flows directly from the Civil Rights

Act of 1866, via R.S. § 1978.

8. “‘Section 242 first came into the law as § 2 of the Civil Rights

Act, Act of April 9, 1866, 14 Stat. 27. After passage of the Four-

teenth Amendment, this provision was re-enacted and amended by

§§ 17, 18, Act of May 31, 1870, 16 Stat. 140, 144."’ Monroe v. Pape,

365 U.S. 167, 183 (1961).

A13

count of such person having at any time been held

in a condition of slavery or involuntary servitude,

except as a punishment for crime whereof the party

shall have been duly convicted, or by reason of his

color or race, than is prescribed for punishment of

white persons, shall be deemed guilty of a misde-

meanor, and, on conviction, shall be punished by a

fine not exceeding one thousand dollars, or imprison-

ment not exceeding one year, or both, in the discretion

of the court.’’

The plain words of the statute would seem to include ‘‘any

person’’ even prosecutors and judges, and this was the

subject of extensive debate. When the bill was first being

introduced, Senator Trumbull hesitated to say that it

would reach conduct of judges.* However, as the debate

moved on, Senator Stewart noted that the fugitive slave

laws had done exactly what the opponents of the bill

complained of, made criminal all actions by persons’ to

effectuate state laws which Congress had determined to

overthrow.”®

The issue was clearly drawn in President Johnson’s veto

message on March 27, 1866,"' where he gave as a major

objection to § 2 of the bill that it would make legislators

and judges criminally liable. The veto was overridden. In

these final debates, Senator Trumbull, the bill’s sponsor

and principal advocate, stated,

‘“‘But it is said that under this provision judges of

the courts and ministerial officers who are engaged

9. Mr. Cowan. ‘‘Then I will ask if that does not come in con-

flict with another principle of law—whether a judge in a criminal

court can be held responsible for the integrity of his intentions as

to the decisions he makes?”’

Mr. Trumbull. ‘‘That would involve many considerations. and

they will be settled by the courts when they arise. If he is not re-

sponsible, T have faith that the judges of the United States courts

will so decide.’’? Cong. Globe, 39th Cong., 1st Sess. (1866), 475-476.

10. Id. at 500.

11. 7d. at 1679-81.

97S

a Oe re tis i iy re ie a

aS GY adel Pe SOE vials r

Al4

in the execution of any such statutes may be punished;

and that is made an objection to this bill. I admit

that a ministerial officer or a judge, if he acts corrupt-

ly or viciously in the execution or under color of an

illegal act, may be and ought to be punished; but

if he acted innocently the judge would not be pun-

ished.’’!2

It is significant to note in these debates that the acts of

a legislator were viewed as probably not falling within

the prohibition since the legislator himself in voting for

a bill was not actually denying anyone his civil rights.

Mr. Trumbull. ‘‘Who is to be punished? Is the law

to be punished? Are the men who make the law to

be punished? Is that the language of the bill? Not at

all. If any person, ‘under color of any law,’ shall

subject another to the deprivation of a right to which

he is entitled, he is to be punished. Who? The person

who, under the color of the law, does the act, not

the men who made the law.”’ Cong. Globe, 39th Cong.,

Ist Sess., 1758.

To further clarify the applicability of the Civil Rights

Act of 1886 to just the sort of facts we have before us,

we need only note the remarks of Congressman Lawrence

who, in commenting on combinations of white persons

organized to drive freedmen out of various communities,

stated, ‘‘If States should undertake to authorize such of-

fenses, or deny to a class of citizens all protection against

them, we may then inquire whether the nation itself may

be destroyed by this insidious means.’’? Tt appears to us

that in 1866, in considering criminal sanctions, Congress

clearly decided to eliminate judicial immunity at least

for racially motivated intentional deprivations of civil

rights.

12. Id. at 1758.

13. Id. at 1835.

Al5

In 1870, after ratification of the Fourteenth Amendment,

Congress decided to reenact some of the previously

enacted provisions of the 1866 Act, probably with the

view that if they were too broad to be constitutional under

the Thirteenth Amendment they would be valid under the

Fourteenth." Thus, as noted above, 18 U.S.C. § 242 was

reenacted. and amended, as was 42 U.S.C. § 1981. Once

again, the legislative history of the bill shows that Congress

intended to cover a wide field, specifically enacting the

predecessor to 18 U.S.C. § 241 which covered private

conspiracies to deprive individuals of civil rights. Perhaps

the most informative statements were those by Senator

Pool of North Carolina in support of Sections 5, 6 and 7

of the Enforcement Act of 1870:

‘‘The civil rights bill was to be enforced by making

it criminal for any officer, under color of any State

law, ‘to subject, or cause to be subjected, any citizen

to the deprivation of any of the rights secured and

protected’ by the act. If an officer of any State were

indicted for subjecting a citizen to the deprivation of

any of those rights he was not to be indicted as an

officer; it was as an individual. And so, under the

fourteenth amendment to the Constitution, ‘no State

shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property without due process of law,

nor deny to any person within its jurisdiction the

equal protection of the laws.’ There the word ‘deny’

14. ‘Others supported the adoption of the [ Fourteenth]

Amendment in order to eliminate doubt as to the constitutional

validity of the Civil Rights Act as applied to the States.”? Hurd v.

Hodge, 334 U. 8. 24, 32-33 (1948).

Section 18 of the Enforcement Act of 1870, was the portion which

reenacted the previous Act:

“*And be it further enacted, That the act to protect all persons

in the United States in their civil rights, and furnish the means

of their vindication, passed April nine, eighteen hundred and

sixty-six, is hereby re-enacted... .”’

Al6

is used again; it is used in contradistinction to

the first clause, which says, ‘No State shall make or

enforce any law’ which shall do so and so. That would

be a positive act which would contravene the right

of a citizen; but to say that it shall not.deny to any

person the equal protection of the law it seems to

me opens up a different branch of the subject. It shall

not deny by acts of omission, by a failure to prevent

its own citizens from depriving by force any of their

fellow-citizens of these rights. It is only when a State

omits to carry into effect the provisions of the civil

rights act, and to secure the citizens in their rights,

that the provisions of the fifth section of the fourteenth

amendment would be called into operation, which is,

‘that Congress shall enforce by appropriate legisla-

tion the provisions of this article.’ .

‘There is no legislation that could reach a State to

prevent its passing a law. It can only reach the in-

dividual citizens of the State in the enforcement of

law.’’ (Emphasis added.)"®

As the Supreme Court stated relative to the scope of § 241,

‘‘despite subsequent statements to the contrary, nothing in

the records of the Congressional debates or the Joint

Committee on Reconstruction indicates any uncertainty

that its objective was the protection of civil rights.’’

United States v. Price, 383 U. 8. 787, 801 n. 9 (1966).

Admittedly, the crucial sections for plaintiffs—that is,

the ones most central to their complaint—are 42 U.S.C.

§§ 1983 and 1985(3). But, in discussing their legislative

history to determine congressional intent, it is clearly

relevant to consider the above discussion of 18 U.S.C.

§§ 241, 242, as they are the criminal analogues to the civil

remedies provided in §§ 1983, 1985(3). In fact, the Supreme

Court in determining how the phrase ‘“‘under color of”?

should be interpreted stated, ‘‘Thus, it is beyond doubt

that this phrase should be accorded the same construction

15. Cong. Globe, 41st Cong., 2nd Sess., 3611. ‘

Al7 |

in both statutes—in § 1979 [now 42 U.S.C. § 1983] and in

18 U.S.C. § 242.°’ Momroe v. Pape, 365 U. S. 167, 185

(1961). So in deciding what Congress meant when it re-

ferred to ‘‘{e]very person’? in 42 U.S.C. § 1983, it is

significant that Congress had earlier rejected specifically

absolute judicial immunity by passing the Civil Rights Act

of 1866.

As to the congressional debates surrounding the Ku

Klux Klan Act of April 20, 1871, ch. 22, 17 Stat. 13,” the

very title of the bill reflects one of the main concerns that

Congress had. On March 23, 1871, President Grant sent

the following message to Congress:

“‘A condition of affairs now exists in some States

of the Union rendering life and property insecure and

the carrying of the mails and the collection of the

revenue dangerous. The proof that such a condition

of affairs exists in some localities is now before the

Senate. That the power to correct these evils is beyond

the control of State authorities T do not doubt; that

the power of the Executive of the United States, acting

within the limits of existing laws, is sufficient for

present emergencies is not clear. Therefore, I urgent-

ly recommend such legislation as in the judgment of

Congress shall effectually secure life, liberty, and

property, and the enforcement of law in all parts of

the United States.’”!7

The debates are ‘replete with references both to private

conspiracies and to inaction by state officials to curtail such

activity. ’18

16. 42 U.S.C. § 1983 derives from § 1 of this Act and 42 U.S.C.

§ 1985(3) from § 2 of the Act.

Combinations, darker than the night that hides them, conspiracies,

wicked as the worst felons could devise, have gone unwhipped of

PU RTL ANE Ce ERIS

A18s

As Mr. Justice Douglas said in Monroe v. Pape, 365

U. S. 167, 174-75 (1961), ‘‘{An] aim was to provide a

federal remedy where the state remedy, though adequate

in theory, was not available in practice. ... It was not

the unavailability of state remedies but the failure of cer-

tain States to- enforce the laws with an equal hand that

furnished the powerful momentum behind this ‘foree bill.’ ”’

Thus, it should be noted that while the primary evil

sought to be checked was the Ku Klux Klan, 42 U.S.C.

$ 1983 applies not to Klan members but to those who, acting

for the state, refuse or do not attempt to enforce state

laws to protect all citizens. That the state laws themselves

might appear on their face to be nondiscriminatory and

yet be applied to protect only certain classes of citizens

was stressed in the debates.’® Nowhere is the present

justice. Immunity is given to crime, and the records of the public

tribunals are searched in vain for any evidence of effective re-

dress.’’ Cong. Globe, 42nd Cong., Ist Sess., 374.

Mr. Beatty. ‘‘ States have denied fo persons within their

jurisdiction the equal protection of the laws. . {M]len were

murdered, houses were burned, women were outraged, men were

scourged, ‘and officers of the law shot down ; and the State made no

successful effort to bring the guilty to punishment or afford protec-

tion or redress to the outraged and innocent. The State, from lack

of power or inclination, practically denied the equal protection of

the law to these persons.”’ Id. at 428. (Emphasis added.)

Senator Osborn. ‘‘That the State courts in the several States

have been unable to enforce the criminal laws of their respective

States or to suppress the disorders existing, and in fact that the

preservation of life and property in many sections of the country

is beyond the power of the State government, is a sufficient reason

why Congress should, so far as they have authority under the

Constitution, enact the laws necessary for the protection of citizens

of the United States. The question of the constitutional authority

for the requisite legislation has been sufficiently discussed.’’ Id.

at 653.

19. Mr. Burchard. ‘‘If the State Legislature pass a law dis-

criminating against any portion of its citizens, or if it fails to enact

provisions equally applicable to every class for the protection of

their person and property, it will be admitted that the State does

not afford the equal protection. But if the statutes show no dis-

crimination, yet in its judicial tribunals one class is unable to

A19 .

case more clearly shown to be encompassed by exactly

the type of discrimination sought to be remedied by the

Ku Klux Klan Act than in the statement of Senator Pratt ~~

of Indiana relating to discrimination against Negroes and

Union sympathizers in enforcing criminal laws :”°

‘*Plausibly and sophistically it is said the laws of North ;

Carolina do not discriminate against them; that the

secure that enforcement of their rights and punishment for their

infraction which is accorded to another, or if secret combinations of

men are allowed by the Executive to band together to deprive one

class of citizens of their legal rights without a proper effort to

discover, detect, and punish the violations of law and order, the

State has not afforded to all its citizens the equal protection of the

laws.’’ Cong. Globe, 42nd Cong., 1st Sess., App. 315.

Mr. Hoar. ‘‘Now, it is an effectual denial by a State of the equal

protection of the laws when any class of officers charged under the

laws with their administration permanently and as a rule refuse to

extend that protection. If every sheriff in South Carolina refuses

to serve a writ for a colored man and those sheriffs are kept in office

year after year by the people of South Carolina, and no verdict

against them for their failure of duty can be obtained before a

South Carolina jury, the State of South Carolina, through the class

of officers who are its representatives to afford the equal protection

of the laws to that class of citizens, has denied that protection. If

the jurors of South Carolina constantly and as a rule refuse to do

justice between man and man where the rights of a particular class

of its citizens are concerned, and that State affords by its legislation

no remedy, that is as much a denial to that class of citizens of the

equal protection of the laws as if the State itself put on its statute-

book a statute enacting that no verdict should be rendered in the

courts of that State in favor of this class of citizens.’’ Id. at 334.

Mr. Stevenson. ‘‘ Denial may, therefore, be either active or pas-

sive. It is more frequently passive than active. That of Providence

is nearly always passive; withholding, not giving, not granting is

denying. . .. Unexecuted laws are not ‘protection.’ And this brings

us to the very case: the States have laws providing for equal pro-

tection, but they do not, because either they will not or cannot,

enforce them equally; and hence a class of citizens have not ‘the

protection of the laws.’ ’’ Cong. Globe, 42nd Cong., Ist Sess., App.

300:

20. It should be noted that the discrimination with which Con-

gress was concerned was not purely racial but also included that

against that class of whites who had Union sympathies. Neverthe-

less, the discrimination was against classes of people and not just

specific individuals,

tea er seunreenseccmmnapsnerotenne me UENO NMRA ram mGRE RR unica r mies ee Me

OS oe ee eS

provisions in favor of rights and liberties are general ;

that the courts are open to all; that juries, grand and

petit, are commanded to hear and redress without

distinction as to color, race, or political sentiment.

‘‘But it is a fact, asserted in the report, that of the

hundreds of outrages committed upon loyal people

through the agency of this Ku Klux organization not

one has been punished. This defect in the administra-

tion of the laws does not extend to other cases. Vigor-

‘ously enough are the laws enforced against Union

people. They only fail in efficiency when a man of known

Union sentiments, white or black, invokes their aid.

Then Justice closes the doors of her temples.’™'

Although Congress did substantially weaken $2 of the

bill (the predecessor of 42 U.S.C. §$ 1985(3)) which had

sought to federalize virtually all state criminal laws, the

intent of $1 of the bill was and remained, at least in part,

to hold liable those whose inaction caused or allowed to

increase such criminal activity against given classes of

citizens, since Congress was quite clear that such action

constituted a deprivation of equal protection under the law

which is a ‘‘deprivation of . .. rights . . . secured by the

Constitution.’

21. Cong. Globe, 42nd Cong., Ist Sess.. 505.

99 Mr. Pratt. ‘Though the laws do not in terms discriminate

against them, still the fact is that they invoke their protection in

vain in a great many localities, counties, and districts. There is

either ‘such a condition of public sentiment that they cannot he

executed. or there is a complicity with their oppressors on the part

of the officers who should. but do not, execute them.

“Now. sir, is not this state of things a practical denial of the

equal protection of the laws? One of the definitions of the verb

‘deny’ is ‘not to afford ; to withhold.’ Now, can it with fairness be

said this equal protection is not denied, when it is withheld, when

it is not afforded? Is there not a positive duty imposed on the

States by this language to see to it—not only that the laws are

equal, affording protection to all alike, but that they are executed,

enforced; that their protection is noth withheld, but afforded affirm-

atively, positively, to all in equal degree.”’ Cong. Globe, 42nd

Cong., Ist Sess., 506.

““The constitutional provision, therefore, must mean that no

agency of the State, or of the officers or agents by whom its powers

A21

One further aspect of legislative history must be noted.

In discussing the scope of the coverage of the Ku Klux

Klan Act, Mr. Hoar stated that it would only interfere

where ‘‘evils have attained such a degree as amounts to

yt ae

the destruction, to the overthrow, to the denial to large ’

classes of the people of the blessing of the republican ;

government altogether.’ Although this gloss has not been ¥

closely followed in many cases, e.g., Monroe v. Pape, supra,

the fact that a situation of this nature exists, as alleged

in the present complaint, would certainly seem to increase

the logic of applying the statute as it is written, and not

unduly narrowing it. As the Supreme Court has recently

stated,

“This legislative history makes evident that Con-

gress clearly conceived that it was altering the re-

lationship between the States and the Nation with

respect to the protection of federally created rights;

it was concerned that state instrumentalities could

not protect those rights; it realized that state officers

might, in fact, be antipathetic to the vindication of

those rights; and it believed that these failings ex-

tended to the state courts.’? Mitchum v. Foster, 40

U.S.L.W. 4737, 4742. (TU. S. June 19, 1972.)

In sum, ignoring for the time being the issue of im-

munity, it is clear that the complaint does state a cause

of action against the judges under 42 U.S.C. 8§ 1981,

1983 (and perhaps under 42 U.S.C. § 1982) since the judges

are alleged to have imposed heavier fines and sentences

and higher bails on plaintiffs’ class than on the white

are exerted, shall deny to any person within its jurisdiction the

equal protection of the laws.’’ Ex parte Virginia, 100 U. S. 339,

347 (1879).

“(T]he remedy created was not a remedy against it [the Klan]

or its members but against those who representing a State in some

capacity were wnable or unieilling to enforce a state law.’’ Monroe

v. Pape, 365 U.S. at 175-176. (Emphasis in original. )

See also discussion of United States v. Classic, at note 25, infra.

23. Cong. Globe, 42nd Cong., Ist Sess., 334.

|

RUNNIN (Rett mR oa

‘citizens of Cairo. As against Berbling and Shepherd, it

would appear that a violation of 42 U.S.C. § 1983 has

been alleged in that they have denied to various plain-

tiffs equal access to the criminal justice system.* Further,

it is clear that the failure to ‘do one’s duty is actionable

under the statute as passed by Congress. Thus, criminal

liability can attach from such a failure as in United States

v. Classic, 313 U.S. 299 (1941).* Finally, the fact that

42 U.S.C. § 1981 does not itself contdin a remedy is no

objection. In a similar situation the Supreme Court stated,

‘“[t]he fact that 42 U.S.C. § 1982 is couched in declaratory

terms and provides no explicit method of enforcement

does not, of course, prevent a federal court from fashion-

ing an effective equitable remedy.’’ Jones v. Alfred H.

Mayer Co., supra, 392 U.S. at 414 n. 13. And more recently,

24. In a different context, a class ‘action by indigent plaintiffs

challenged. a city ordinance requiring a fee for issuance of an arrest

warrant. The Fifth Circuit held that the complaint stated a cause

of action :

‘*It is well to note in connection with this controversy that a

citizen has no constitutional right to have an arrest warrant

issued. The only constitutional right involved here is the citi-

zen’s ability to set in motion the governmental machinery

which redresses violations of municipal ordinances; ¢.e., the

right to seek an arrest warrant. Costs such as the fee in ques-

tion here, no less than court costs, may be imposed but the

teaching of Griffin v. Illinois, supra, is that concepts of equal

protection in the administration of criminal law dictate that a

poor person is not to be denied access to the criminal procedure

process solely because of poverty.’’ Lane v. Correll, 434 F. 2d

598, 600 (5th Cir. 1970)

25. In Classic, the second count of the indictment charged the

Commissioners of Election with a deprivation of constitutionally

_ protected rights “‘by the willful failure and refusal of defendants

to count the votes as cast... .”’ 313 U. S. at 309. Although the

court did not pass on the sufficiency of the indictments because the

appeal was a direct one following the district court's sustaining a

demurrer, it is clear that plaintiffs’ theory is not novel. See also

Picking v. Pennsylvania R. Co., 151 F.2d 240, 250 (3rd Cir. 1945),

overruled on another issue, Bauers v. Hetsel, 361 F.2d 581 (3rd

Cir. 1966), cert. denied, 386 U.S. 1021 (1967) ; Whirl v. Kern, 407

F.2d 781 (5th Cir. 1968), cert. denied, 396 U.S. 901 (1969).

Tr ny Beha SR Poe esta Nena

A23

it was held that ‘‘[t]he existence of a statutory right

implies the existence of all necessary and appropriate

remedies. See Texas € N.O.R. Co. v. Railway Clerks, 281

U. S. 548, 569-570.’’ Sullivan v. Little Hunting Park, Inc.,

396 U.S. 229, 239 (1969).

This approach is not particularly new in federal juris-

prudence. In one of the earliest and most frequently cited

opinions of the Supreme Court, Chief Justice Marshall

phrased the inquiry in the following terms:

‘‘This brings us to the second inquiry; which is: If

he has a right, and that right has been violated, do

the laws of his country afford him a remedy?

‘*The very essence of civil liberty certainly consists

in the right of every individual to claim the protection

of the laws, whenever he receives an injury. One of

the first duties of the government is to afford that

protection . . . . [Blackstone in his Commentaries

states] ‘. .. for it is a settled and invariable principle

in the laws on England, that every right, when withheld,

must have a remedy, and every injury its proper re-

dress.’

‘“‘The government of the United States has been

emphatically termed a government of laws, and not

of men. It will certainly cease to deserve this high

appellation, if the laws furnish no remedy for the

violation of a vested legal right. If this obloquy is

to be cast on the jurisprudence of our country, it

must arise from the peculiar character of the case.’’

Marbury v. Madison, 1 Cranch (5 U.S.) 137, 162-163

(1803).

Having determined, in the light of the relevant statutory

and case history, that on its face the complaint states

a cause of action, we must consider whether defendants’

alleged immunity necessarily bars the relief sought. Clear-

ly, the statutes themselves are silent on the issue of im-

munity save for the fact that the term ‘‘every person’’

is used. The legislative history presents a strong case for

POAT re ese

PO I TTT EL LEE ER i

SEER ORS UN TL Ae Hea

A24

finding that most immunities were meant to be swept away,

at least for intentional deprivation of a class’s rights.

Yet, the plain words of the various Civil Rights Acts

have not always fared well in the courts. As the Northern

ardor for further congressional legislative protection of

the rights of Negroes dimmed and was virtually extin-

guished in 1877,2* so did the courts follow a similar pat-

tern. In the Civil Rights Cases, 109 U.S. 3 (1883), the

Supreme Court invalidated the 1st and 2nd Sections of

the Civil Rights Act of 1875 which dealt with discrimina-

tion in public accommodations. The Court held,that the

Thirteenth Amendment related solely to badges and inci-

dents of slavery,” that the Fourteenth Amendment re-

26. Concerning the election of 1876 and the Compromise of

1877, Samuel Eliot Morison wrote,

‘when the first returns came in it seemed that he [Tilden]

had won, but the votes of three Southern States and Oregon

were doubtful, and without them Tilden had only 184 electoral

votes ; if the Republicans carried those four states, Hayes would

have 185.

‘‘From all four disputed states came two sets of electoral

votes. In South Carolina, Florida, and Louisiana, still under

carpetbag rule, the election boards had thrown out thousands

of Democratic votes on the ground of fraud or intimidation.

Congress met the problem by setting up an electoral commis-

sion... . [T] here seems no doubt that a deal was made by the

Republicans with Southern Democratic leaders, by virtue of

which, in return for their acquiescence in Hayes’s election,

they promised on his behalf to withdraw the garrison and to

wink at non-enforeement of Amendment XV, guaranteeing

civil rights to the freedmen.’’ S. E. Morison. The Oxford

History of the American People (1965), pp. 733-734.

27. ‘‘The long existence of African slavery in this country gave

us very distinct notions of what it was, and what were its necessary

incidents. Compulsory service of the slave for the benefit of the

master, restraint of his movements except by the master’s will,

disability to hold property, to make contracts, to have a standing in

court, to be a witness against a white person, and such like burdens

and incapacities, were the inseparable incidents of the institution,

Severer punishments for crimes were imposed on the slave than on

free persons guilty of the same offences. Congress, as we have seen,

by the Civil Rights Bill of 1866, passed in view of the Thirteenth

A25

quired state action, and that private discrimination in

accommodations fell within neither category.** Thus, it

has been only recently that the Court has decided in

handling the various Reconstruction civil rights statutes

to ‘‘‘aecord [them] a sweep as broad as [their] lan-

guage.’ United States v. Price, 383 U. S. 787, 801; Jones

v. Alfred H. Mayer Co., 392 U. S. 409, 437.’’ Griffin v.

Breckenridge, 403 U. S. 88, 97 (1971).

Turning to judicial immunity from suit, one of the first

major cases is Bradley v. Fisher, 80 U. S. 335 (1871).

The Court held that the judge was immune from suit as

long as he had jurisdiction of the subject matter, no

matter how irregular his actions might have been, nor

how malicious or corrupt his motives might be. Such im-

munity was deemed essential to preserve the independence

of the judiciary.®

Amendment, before the Fourteenth was adopted, undertook to wipe

out these burdens and disabilities, the necessary incidents of slavery

constituting its substance and visible form ... .’’ Civil Rights

Cases, 109 U. 8S. 3, 22 (1883).

28. We need only note in passing that the decision was greeted

with great relief in much of the national press. 2 Charles Warren,

The Supreme Court in United States History (1926), p. 604 et seq.

The test of time has cast the lie to Warren’s hopeful analysis:

**Viewed in historical perspective now, however, there can

be no question that the decisions in these cases were most for-

tunate. They largely eliminated from National polities the

negro question... .’’ Id. at 608.

29. Plaintiff, an attorney, had sued to recover damages from the

defendant, a justice of the Supreme Court of the District of Colum-

bia, who had ordered Bradley’s name stricken from the role of

attorneys as a result of certain remarks Bradley had made to him

during the trial of John Suratt for the murder of Abraham Lincoln.

An earlier case to the same effect is Randall v. Brigham, 74 U. S.

(7 Wall.) 523 (1868).

30. ‘‘For it is a general principle of the highest importance to

the proper administration of justice that a judicial officer, in exer-

cising the authority vested in him, shall be free to act upon his own

convictions, without apprehension of personal consequence to him-

self. Liability to answer to every one who might feel himself

aggrieved by the action of the judge, would be inconsistent with

stat

—

SE Pa com Rs AE St ea

A26

But Bradley, although one of the earliest cases in which

the Court approved of judicial immunity, was a common

law action, not a case arising under any of the civil rights

acts. Thus, it did not answer the question whether those

acts had abolished such common law immunity. The first

case in that category was Ex parte Virginia, 100 U. S. 339

(1879). There, a judge of a Virginia county court was

indicted under the predecessor of 18 U.S.C. § 243 for

excluding from the grand and petit jury lists black citizens

who were otherwise qualified. The petition for habeas

corpus was filed on behalf of the judge to determine if

the district court below had jurisdiction or any authority

to act—essentially a test of the validity of the statute.

After holding that Congress had power under the

Thirteenth and Fourteenth Amendments to enact such a

law, the Court faced the petitioner’s claim that he was

immune since he was acting in the performance of a judi-

cial act. The Court rejected the contention holding that

the acts charged were not judicial, but merely ministerial.”

However, in what may be regarded as an alternate ground

for the holding, the Court went on to add,

‘But if the selection of jurors could be considered

in any case a judicial act, can the act charged against

the petitioner be considered such when he acted out-

side of his authority and in direct violation of the

spirit of the State statute? That statute gave him

the possession of his freedom, and would destroy that independence

without which no judiciary can be either respectable or useful.’’

80 U. S. at 347.

31. ‘‘It was insisted during the argument on behalf of the peti-

tioner that Congress cannot punish a State judge for his official

acts; and it was assumed that Judge Cole, in selecting the jury as

he did, was performing a judicial act. This assumption cannot be

admitted. Whether the act done by him was judicial or not is to be

determined by its character, and not by the character of the agent.

Whether he was a county judge or not is of no importance. The

duty of selecting jurors might as well have been committed to a

private person as to one holding the office of a judge... . It is

merely a ministerial act... .’’ 100 U.S. at 348.

A27

no authority, when selecting jurors, from whom a

panel might be drawn for a circuit court, to exclude

all colored men merely because they were colored. :

Such an exclusion was not left within the limits of

his discretion. It is idle, therefore, to say that the j

act of Congress is unconstitutional because it inflicts i

penalties upon State judges for their judicial action.

It does no such thing.’’ 100 U. S. at 348-349.

Thus, it would appear a judge can be held criminally E

liable for ministerial actions or actions ‘‘not within the

limits of his diseretion.’’ 3

One of the few cases to hold a judicial officer liable

for damages was Picking v. Pennsylvania R. Co., 151

F. 2d 240 (3rd Cir. 1945). There the district court had

dismissed the complaint against a variety of defendants,

including Keiffer, a justice of the peace. Plaintiffs alleged

that when they were illegally arrested they sought to

obtain their release at a hearing before Keiffer but that

Keiffer refused to hold any hearing as he was required

to do by law.

rl oh

‘*If these allegations be proved it may be concluded

that the refusal of Keiffer to act as required by law

may have deprived the plaintiffs of their liberty with-

out due process of law in violation of the Four-

teenth Amendment. If the plaintiffs brought a proper i

proceeding to secure their liberty before Justice of :

the Peace Keiffer and he refused to hear their cause, 3

he may be answerable to the plaintiffs in damages. 2

The refusal of a state officer to perform a duty im- 7

posed on him by the law of his state because he has

conspired with others in a conscious design to deprive

a person of civil rights in legal effect may be the

equivalent of action taken ‘under the color’ of the

law of the state.’’ 151 F. 2d at 250.

But the court there also considered the immunity issue.

After acknowledging the absolute judicial immunity which

was the rule at common law, Judge Biggs stated, ,

TORRE REE OAR OE

SET A NL NE TT LT I

om FE PRWEB AERA”

*‘Congress possessed the power to wipe it out. We

think that the conclusion is irresistible that Congress

by enacting the Civil Rights Act sub judice intended

to abrogate the privilege to the extent indicated by

that act and in fact did so. Section 1 of the third

Civil Rights Act explicitly applied to ‘any person.’

R. 8. Section 1979 applies to ‘every person.’ We can

imagine no broader definition. The statute must be

deemed to include members of the state judiciary

acting in official capacity. The result is of fateful

portent to the judiciary of the several states. ...

But the policy involved is for Congress and not for

the court.’’ 7d. at 250.

We note that defendants in the case before us do not

contend that Congress did not have the power to eliminate

judicial immunity, but only that it did not in fact do so.

A few years after the Picking decision, the Supreme

Court for the first time passed on the general scope of

these ‘sections of the 1871 Act. In Tenney v. Brandhove,

341 U. S. 367 (1951), a member of the California legis-

lature was being sued for statements and acts performed

as chairman of a Senate committee. The Court held that

Congress could not have meant to go so far as to eliminate

legislative immunity: ‘‘The limits of §$§1 and 2 of the

1871 statute— now §§ 43 and 47(3) of Title 8 — were

not spelled out in debate. We cannot believe that Congress

— itself a staunch advocate of legislative freedom —

would impinge on a tradition so well grounded in history

and reason by covert inclusion in the general language

before us.’’ 341 U. S. at 376. Interestingly enough, the

Court did not refer to the legislative history of the previ-

ous Civil Rights Acts, where, as noted above, the liability

of state legislators had been discussed and specifically ex-

cluded.

In 1966, in Bauers v. Hetsel, 361 F. 2d 581 (3rd Cir.

1966), cert. denied, 386 U. S. 1021 (1967), the Third Cir-

A29

cuit, sitting en banc, overruled Picking v. Pennsylvania

R. Co., supra, relying in part on Tenney, in part on one

of the most complete compilation of cases ever made in

this area,*? and in part on its own reassessment of the

policy involved. This brought it into conformity with the =

rule in this Circuit which has held judges immune from }

damage suits for acts they did in discharge of their

official duties, e.g., Peckham v. Scanlon, 241 F. 2d 761

(7th Cir. 1957); Stift v. Lynch, 267 F. 2d 237 (7th Cir. :

1959). ;

}

The issue was finally put to rest by the Supreme Court

in Pierson v. Ray, 368 U. S. 547 (1967), a crucial case,

although not cited by defendants. There a state court

judge was sued for damages under 42 U.S.C. § 1983 for

his adjudging certain civil rights demonstrators ‘‘ guilty

when their cases came before his court.’’** After discussing

the importance of judicial immunity as developed in

Bradley v. Fisher, supra, the Court applied the Tenney

32. 361 F. 2d at 586 n. 7.

33. This court has held a sitting judge liable for damages when

he acted outside his duty. In Spires v. Bottorff, 317 F. 2d 273 (7th

Cir. 1963), an inmate of a state penitentiary sued a state judge

alleging the judge, who had disqualified himself, had persuaded the

warden of the penitentiary to try to prevent plaintiff from corre-

sponding with the clerk of the state court regarding his previous

conviction. The court held that these allegations stated a cause of

action under the Civil Rights Act. Concerning the defense that,

since the judge had disqualified himself, he was not acting ‘‘ under

color of state law,’’ the court said,

‘*He did not, by disqualifying himself, become any less a judge

+ and without the state authority he had, he could not have been :

as effective in interfering, as charged, with petitioner’s right :

to an orderly and fair hearing. If the disqualification rendered

him immune from overstepping his authority, ‘the words

‘‘under color of any law’’ were hardly apt words to express

the idea.’ Screws v. Unitcd States, 325 U. S. 91, 111 (1944).”’

317 F. 2d at 274-275.

34. Subsequently on appeal to the County Court, a trial de novo

was held as to one of the demonstrators and a directed verdict of

acquittal was granted. The cases against the others were then

dropped. 386 U. 8. at 550.

-

A30

v. Brandhove type of analysis to the situation, finding

no specific intent of Congress to abrogate the doctrine.*

Thus, the Court rejected the position propounded by Mr.

Justice Douglas in his dissent that ‘‘[t]o most, ‘every

person’ would mean every person, not every person except

judges.’’ Pierson v. Ray, 336 U. S. at 599 (Douglas, J., dis-

senting). (Emphasis in original.)

But this, of course, does no more than show why plain-

tiffs in their complaint did not choose to sue the judge-

defendants for money damages. The grant of certiorari

in Pierson was ‘‘to consider whether a local judge is liable

for damages under § 1983 for an unconstitutional con-

viction. . . .’? Id. at 551. The Court did not consider the

issue of immunity from injunctive or other equitable relief.

Nor do either of the cases cited by the district court in its

memorandum and order in the case before us* hold that

the sort of relief requested by plaintiffs herein is barred.

The issue of whether or not injunctive relief may be

granted under 42 U.S.C. §1983 in an action against a

state judge has been considered by only a few courts.

Significantly, in all the cases we have been able to find

in which the court seriously considered this question, the

gravamen of the offense was a discrimination by state

judicial officers against a cognizable class — exactly the

35. ‘*We do not believe that this settled principle of law was

abolished by¢$ 1983, which makes liable ‘every person’ who under

color of law deprives another person of his civil rights. The legis-

lative record gives no clear indication that Congress meant to

abolish wholesale all commonlaw immunities. Accordingly. this

Court held in Tenney v. Brandhove, 341 U. S. 367 (1951), that the

immunity of legislators for acts within the legislative role was not

abolished. The immunity of judges for acts within the judicial

role is equally well established, and we presume that Congress

would have specifically so provided had it wished to abolish the

doctrine.’’ 386 1. S. at 554-555.

36. Brown v. Dunne, 409 F. 2d 341 (7th Cir. 1969), and Jones

v. Jones, 410 F. 2d 365 (7th Cir. 1969), cert. denied, 396 U. S. 1013

(1970).

A31

case alleged herein. In United States v. Clark, 249 F.

Supp. 720 (S.D. Ala. 1965), a three-judge court was faced

with a claim for injunctive relief against attempts by

local officials to interfere with the rights of Negroes to

use public accommodations and to register to vote. The

United States was the plaintiff pursuant to 42 U.S.C.

§§ 1971, 2000a-(a), 2000a-5, secking a decree which re-

quested in part an injunction to prevent defendants from

‘“‘(a) Arresting, detaining under unreasonable bail,

prosecuting, convicting, punishing, or threatening to

arrest, detain, prosecute, convict or punish discrimi-

natorily and without just cause any person who is

known by defendants to be exercising, seeking to ex-

ercise, or to have exercised his right to vote or to

use public accommodations free from racial discrimi-

nation;

‘““(b) Requesting, issuing, enforcing, or threatening

to enforce any injunction that prevents persons from

effectively organizing, meeting or assembling to dis-

cuss or advocate the exercise of said rights... .”

249 F. Supp. at 722.

The various judicial and quasi-judicial defendants — two

judges and the city solicitor — objected on the ground

that they were immune from suit. After noting the im-

portance of the doctrine of judicial immunity, the court

went on to distinguish it:

‘However, such a doctrine of judicial immunity ap-

plies only when those officials are faced with civil

suits for damages in connection with the performance

of their official duties. The doctrine has no application

where, as here, the relief is preventive.... The prin-

ciple that no State official — regardless of his position

—is immune from having his conduct challenged —

in the form of preventive actions —is well estab-

lished. Cooper v. Aaron, 358 U. S. 1; Lueas v. Forty-

Fourth General Assembly of State of Colorado, 377

U.S. 713; Sterling v. Constantin, 287 U. S. 378; Bush

— ” Pe 03 en EY, SIR NALA te SD

PSEA N EINEM HENS Caps HE Sd a, wu i

A32

v. Orleans Parish School Board (E.D. La., 1960), 187

F. Supp. 42, aff’d 365 U. S. 569; In re Wallace (M.D.

Ala., 1959), 170 F. Supp. 63.

“*. . . Such an action involves no interference with

judicial discretion since an injunction — if warranted

. by the evidence and if issued — will only prevent

the doing of what there is no right to do. Ex parte

Young, 209 U. S. 123, 159.’ 249 F. Supp. at 727-728.

(Emphasis in original.)**

In a similar case involving intimidation of Negro citizens

who wished to vote, Judge Wisdom, confronting the same

sort of problem, drew the distinction between injunctive

relief and damages:

‘‘In Pierson v. Ray, 1967, 386 U. 8. 047, 87 S. Ct.

1213, 18 L. Ed. 2d 288, the Supreme Court held that

judges are immune from liability for damages in suits

under 42 U.S.C. § 1983. The case does not, of course,

mean that they may not be enjoined from pursuing a

course of unlawful conduct.’ United States v. McLeod,

385 F. 2d 734, 738 n. 3 (5th Cir. 1967). (Emphasis in

original. )

See also Phillips v. Cole, 298 F. Supp. 1049 (N.D. Miss.

1968), and Bramlett v. Peterson, 307 F. Supp. 1311 (M.D.

Fla. 1969).*8

In sum, those courts which have considered the issue

have held that when a class-discrimination is alleged,

37. It should be noted that the court did not issue an injunction

against Judge Hare, Solicitor McLeod, or Judge Reynolds at that

time, due to the considerations of comity and the fact that ‘‘the

other relief that is to be afforded in this case will make it unneces-

sary’’ (249 F. Supp. at 729) to enjoin them. However, jurisdiction

was retained over those defendants and thus the holding of the case

was that the district court could issue such an injunction.

38. The only case which seems to reject this distinction is

Arensman v. Brown, 430 F. 2d 190 (7th Cir. 1970), which will be

considered with those cases discussing prosecutorial immunity,

since that was the specific context in which it arose.

A33

judicial officers may be enjoined.*® Nor is there any statu-

tory block to such an injunction. Even if what plaintiffs

request might fall within the rubric of 28 U.S.C. § 2283,

which we doubt since they are not asking that any state

court proceedings be ‘‘stayed,’’ it is now clear that 42

U.S.C. § 1983 is a specific statutory exemption to the

prohibition. Mitchum v. Foster, supra.

Mitchum abso reaffirmed the teaching of Younger v.

Harris, 401 U. 8. 37 (1971), as to the notions of comity

and desire not to enjoin state court criminal prosecutions.

Although not raised by defendants we feel a few comments

are merited. Here there is a distinct allegation that plain-

tiffs are being subjected to unequal treatment by the

judges because of their race and their civil rights activity.

This is an existing, present violation of 42 U.S.C. § 1981,

not just a potential violation. Moreover, plaintiffs have

not sought to enjoin the state from prosecuting anyone,

but merely to enjoin the judges from unconstitutionally

fixing bail and sentences. Finally, one important considera- i

tion with respect to the irreparable injury suffered by ;

plaintiffs’ class in sentencing discrimination, the individual

defendant in a criminal case finds it extremely difficult,

if not impossible, to obtain review of his sentence as

long as it is within the statutory limits. The standard

of proof for abuse is very severe. ‘‘[I]mposition of sen-

tence is a matter of judicial discretion, and in the absence

of a manifest abuse of that discretion it will not be

altered by a reviewing court.’’ People v. Bonner, 37 Tll. 2d

553, 563, 229 N. E. 2d 527 (1967), cert. denied, 392 U. S.

910 (1968).

39. It should be noted that the Supreme Court in a recent con-

struction of 42 U.S.C. §1985(3), Griffin v. Breckenridge, supra,

403 U. S. at 102, stated, ‘‘The constitutional shoals that would lie

in the path of interpreting § 1985(3) as a general federal tort law

can be avoided by giving full effect to the congressional purpose—

by requiring, as an element of the cause of action, the kind of

invidiously discriminatory motivation stressed by the sponsors of

the limiting amendment.’’

P52 RPL IED EME LIMO LTR RET BS ROE LED

a |

A34

of the sentences may fall within the statutory maximum.

Although admittedly a difficult proposition for the plain-

tiffs to prove, we do not feel that proof is so improbable

that the plaintiffs should be denied a chance to establish

their allegations.“ For the reasons expressed above, we

consider that Younger does not control this sort of case,

and if it does that the plaintiffs’ allegations are sufficient

to come within the ‘‘exceptional circumstances”’ test out-

lined therein: :

‘where irreparable injury is ‘both great and im-

mediate,’ 401 U. S., at 46, where the state law is

‘flagrantly and patently violative of express consti-

tutional prohibitions,’ 401 U. S., at 53, or where there

is a showing of ‘bad faith, harassment, or... - other

unusual circumstances that would call for equitable

relief.’ 401 U. S., at 54.’? Mitchum v. Foster, supra,

40 U.S.L.W. at 4738.

Since the immunity, often characterized as ‘*quasi-

judicial,”’ cloaking the prosecuting attorney is, of necessity,

derivative from the concepts developed in connection with

the judiciary, the conclusions we have reached in the

parent would seem to be dispositive of the offspring.

Nevertheless, because of cases treating the matter from

the viewpoint of the prosecuting attorney, we do sep-

arately. address ourselves. to that phase of the present

ease. An early mention of ‘‘quasi-judicial”’ immunity is

found in Yaselli v. Goff, 12 F. 2d 396 (2nd Cir. 1926),

aff’d per curiam (mem.), 275 U. 8. 503 (1927), an action

brought against a special assistant to the Attorney Gen-

AA — ——

40. Similar difficult fact questions are placed before district

judges in many different contexts, ¢.9-, the proof of intent where it

is appropriate to an offense charged. The fact that questions are

difficult, and may require proof by inference, should not be a basis

for dismissal.

A35

eral for malicious prosecution. The court chose to extend

the immunity offered to judicial officers in the exercise

of their duties to these quasi-judicial officers.“

Cases from this Circuit have uniformly held that an

action for damages — lie against a prosecutor

who was performing his ies, no matter what malice

was alleged. The earliest case in this Circuit considering

the question is Cawley v. Warren, 216 F. 2d 74 (7th Cir.

1954), in which plaintiff sued the state’s attorney, his first

assistant, and the foreman of a grand jury for allegedly

wrongfully procuring indictments against him. The action

was brought under 42 U.S.C. § 1985, and the court, without

reference to the legislative history, or even any reference

to the words of the statute, stated, ‘‘[t]he law supports

this claim of immunity. It extends to and includes judges,

prosecuting attorneys and members of a grand jury.’

216 F. 2d at 75.” ;

As noted in the first portion of this opinion, the legis-

lative history of the various Civil Rights Acts makes a 4

strong case for the view that Congress intended to hold

prosecutors liable, even for damages, when they discrimi-

nated against classes of citizens. Be that as it may, this

court has. followed its opinion in Cawley in numerous

other cases, e.g., Stift v. Lynch, 267 F. 2d 237 (7th Cir.

1959), and Phillips v. Nash, 311 F. 2d 513 (7th Cir. 1962),

41. ‘‘A United States attorney, if not a judicial officer, is at

least a quasi judicial officer, of the government. He exercises im-

portant judicial functions, and is engaged in the enforcement of

the law. The reasons for granting immunity to judges, jurors,

attorneys, and executive officers of the government apply to a pub-

lic prosecutor in the performance of the duties which rest upon

him.’”’ 12 F. 2d at 404.

42. The court did add the following comment:

“While we can understand from the facts set forth in plain-

tiff’s complaint her outraged feeling resulting from the charged

acts of the defendants, the rule enunciated in the foregoing

FIP EEE OE LLL NIY LILLIES OS IOS TOL ID SM

eases is that, as a matter of public policy, such an injured é

person is without relief in a civil proceeding.’’ 216 F. 2d at

76-77.

ISA TIER 8.4

——

cert. denied, 374 U. S. 809 (1963) (a case which followed

shortly after the Supreme Court had opened up the field

of damage suits for deprivation of civil rights by re-

‘versing this Circuit in Monroe v. Pape, supra). Nor is

this Circuit the only one to adopt such a rule. In fact

every circuit which has considered the question seems to

have reached the same result.“

In many of these cases the court reached this result

in a summary manner. Our discussion of the relevant

legislative history and the words of the statute themselves

reflect our belief that there is not freedom from doubt

on this issue. However, the Supreme Court’s opinion in

Pierson v. Ray, supra, must control. In essence, it seems

that prosecutors are closer to the judge in Pierson than

to the policeman in Monroe v. Pape, supra. We therefore

hold that insofar as defendant Berbling was acting within

his prosecutorial function he has a quasi-judicial immunity

from suit for damages under the Civil Rights Acts.

43. Fanale v. Sheehy, 385 F. 2d 866 (Qnd Cir. 1967) ; Dacey V.

New York County Lawyers’ Association, 423 F. 2a 188 (2nd Cir.

1969), cert. denied, 398 U.S. 929 (1970) ; Bauers v. Heisel, supra;

United States ex rel. Rauch Vv. Deutsch, 456 F, 2d 1301 (3rd Cir.

1972) ; Guedry v. Ford, 431 F. 2d 660 (5th Cir. 1970) ; Madison Vv.

Gerstein, 440 F, 24 338 (5th Cir. 1971) ; Hurlburt v. Graham, 323

F. 2d 723 (6th Cir, 1963) ; Rhodes v. Meyer, 334 F. 2a 709 (8th

Cir, 1964) ; cert. denied, 379 U. S. 915; Clark v. State of Washing-

ton, 366 F. 2a 678 (9th Cir. 1966) ; Ney v. State of California, 439

F. 2d 1285 (9th Cir. 1971) ; Kostal v. Stoner, 292 F. 2d 492 (10th

Cir. 1961), cert. denied, 369 U. S. 868 (1962).

44. This section was amended effective August 24, 1971, by

P. A. 77-1244, § 1, but the change was immaterial, dealing only with

form and so the citation is to the current law.

A37

‘**(1) To commence and prosecute all actions, suits,

indictments and prosecutions, civil and criminal, in

the circuit court for his county, in which the people

of the State or county may be concerned.’’

Nowhere is there any mention of the State’s attorney

having as one of his ‘‘quasi-judicial’’ duties the investiga-

tion of crimes, which is primarily a police function. It has

long been established that police officers have no immunity

from civil liability under 42 U.S.C. § 1983, Momroe v.

Pape, supra. It would be anomalous if the State’s at-

torney’s quasi-judicial immunity carried over to situations

in which he was acting as a police investigator rather

than in his quasi-judicial role.”

Two other circuits have considered this issue and have

reached the same result. In Lewis v. Brautigam, 227 F. 2d

124 (Sth Cir. 1955), the state’s attorney was alleged to

have ordered deputies to force plaintiff to pose for

photographs showing him in convict garb at a _ state

prison and also to plead guilty. The court found it un-

necessary to inquire into the nature of the quasi-judicial

immunity ‘‘further than to say that a quasi-judicial officer,

such as a prosecuting attorney, who acts outside the scope

of his jurisdiction and without authorization of law, cannot

shelter himself from liability by the plea that he is acting

under color of office.’’ 227 F. 2d at 129.

Similarly in Robichaud v. Roman, 351 F. x 533 (9th

Cir, 1965), plaintiff alleged that the county attorney

had directed certain police activity designed to coerce and

intimidate her into making a confession. The court re-

versed the dismissal with some words that we find appli-

cable to the present case:

‘*We believe, however, that when a prosecuting

attorney acts in some capacity other than his quasi-

45. For a case holding a judge liable for acts outside his judicial

duties, see Spires v. Bottorff, 317 F. 2d 273 (7th Cir. 1963), dis-

cussed above at n. 33.

CL ee en ee ee

A38

judicial capacity, then the reason for his immunity

— integral relationship between his acts and the

judicial 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 se-

cured by the Federal Constitution and laws? .. .

“The title of office, quasi-judicial or even judicial,

does not, of itself, immunize the officer from responsi-

bility for unlawful acts which cannot be said to

constitute an integral part of judicial process.’’ 351

F. 2d at 536, 537-538.

The court did not attempt, to distinguish which acts

might have been committed after the county attorney had

abandoned his quasi-judicial role, but remanded to the

district court to make such a determination.

In the case before us, the allegations in the complaint

may not be sufficiently removed from judicial (or quasi-

judicial) activity, such as evaluation for prosecutorial pur-

poses, to warrant removing the cloak of immunity from

them, but this was not considered by the district court.

The better course therefore is to remand to allow plain-

tiffs to clarify their complaint by amendment and give

the district court a chance to reconsider in the light of the

views expressed herein.

The second unanswered question is whether the State’s

attorney is subject to. injunctive proscription. Since Ex

parte Young, 209 U. S. 123 (1908), it has been clear that

a federal court has the power to enjoin a state prosecutor

from instituting criminal proceedings under a_ state

statute. Even earlier than Young, lower courts had recog-

nized that such a power existed. M. Schandler Bottling Co.

v. Welch, 42 Fed. 561 (C.C. Kan. 1890). Moreover, in

Mitchum v. Foster, supra, the Supreme Court has recently

affirmed that 42 U.S.C. § 1983 is an express statutory

exception to 28 U.S.C. § 2283.

A39

In light of the above cases, we come to the case of

Arensman v. Brown, 430 F. 2d 190 (7th Cir. 1970), in

which the court held that quasi-judicial immunity forbids

a request for an injunction against a prosecutor from

prosecuting a criminal cause of action against the plain-

tiff. We read Arensman as being confined to its facts,

noting that the court stated ‘‘we think the case borders on

the frivolous,’’ 430 F. 2d at 191. Also there was no allega-

tion that plaintiff’s rights could not be adequately vin- :

dicated at a criminal proceeding nor any other allegation

that might exclude it from the guidelines set down in

Younger v. Harris, supra. We hold that the quasi-judicial 3

immunity does not extend to complete freedom from in-

junction.

Although defendants did not raise the issue in their

brief, we find it necessary to treat the consideration

raised in Peek v. Mitchell, 419 F. 2d 575 (6th Cir. 1970),

where the court denied a similar affirmative injunction to

require prosecution. That case highlights the difference

between an injunction forbidding prosecution and one

compelling prosecution, which are admittedly based on

different considerations. In Peek, plaintiffs sought to com-

pel federal and state officials to prosecute two Detroit

policemen who allegedly committed violations of plaintiffs’

civil rights during the Poor People’s Campaign on May 13,

1968. Initially the court rejected the contention that defen-

dants had a total immunity from injunction, but added,

€ AS AOL E NI 2 PPERELY Od ETI

“It is likewise apparent that the federal courts must

achieve a balance between the protection of individual

rights and the freedom of public officials to exercise

their necessary expertise in performing their duties.

This is an era of increased litigation involving alleged

civil rights violations, and the courts must shield the

responsible public officials against any abusive use of

the civil rights legislation.’ 419 F. 2d at 578.

A40

In denying injunctive relief, the court rejected the plain-

tiffs’ contention that there was a ‘ ‘systematic pattern’ of

conduct,’’ and held

“We find that based on this record, the Prosecuting

Attorney is immune from the types of relief sought

here. Defendant’s statutorily imposed obligations,

which include investigation, were performed in the

good-faith exercise of his discretion as prosecuting

. attorney and within the scope of his authority. We

find no arbitrary or discriminatory action which would

prompt substitution of our judgment for his.’’ 419

F. 2d at 578-579. (Citation omitted. Emphasis added.)

Similarly, it was recently stated, ‘‘It is hardly necessary

to add that the doctrine of prosecutorial discretion has

never insulated conduct from review on charges of bad

faith, fraud, or illegality.”’ Boyd v. United States, 41

U.S.L.W. 2005, 2006 (E.D. N.Y., June 7, 1972).

Plaintiffs in the present case have alleged that pre-

requisite for injunctive relief which the Sixth Cireuit in

Peek found lacking. Plaintiffs have alleged that the State’s

attorney handles complaints and prosecutes cases in a

blatantly discriminatory and arbitrary manner.“

This is not a case in which it can be said that there is an

adequate remedy at law and therefore there is no proper

basis for equitable relief. Theoretically, plaintiffs now

have an action for damages under 42 U.S.C. § 1985(3)

against the private parties who have been assaulting

46. That the prosecutor’s power is great was recognized over 40

years ago by the Wickersham Commission :

‘“The prosecutor [is] the real arbiter of what laws shall be

enforeed and against whom, while the attention of the public

is drawn rather to the small percentage of offenders who go

through the courts.”’ National Commission on Law Observance

and Enforcement: No. 4, Report on Prosecution, p. 19 (1931),

quoted in Kaplan. The Prosecutorial Discretion—A Comment,

60 Nw. U. L. Rev. 174, 175 (1965).

A41

them.’ We, however, would retund credulity to say that

a private action of that sort is the equivalent of prompt

and effective prosecution under the criminal laws. At

least one of the principal reasons for criminal laws is their

deterrent effect on similar conduct by others. While, in

some instances, the private damage action may have deter-

ring effects, it seems unlikely it will obviate the necessity

for a system of criminal justice. The type of discrimina-

tory conduct here alleged will not be, in our opinion,

deterred by the possibility of piecemeal after-the-fact

damage suits.

We conclude that plaintiffs’ remedy at law is plainly E

inadequate and equitable relief is proper. In addition, the =

above consideration shows the ‘‘great and immediate’ |

irreparable injury being suffered by plaintiffs to justify

' intervention under Younger v. Harris, supra, 401 U.S. at

46.

As to defendants’ repeated references to the fact that we

are dealing with an area of discretion, we need only note

the words of Chief Justice Marshall:

RR Se Le Pee

‘Courts are the mere instruments of the law, and can

will nothing. When they are said to exercise a dis-

cretion, it is a mere legal discretion, a discretion to

be exercised in discerning the course prescribed by

law; and, when that is discerned, it is the duty of the

court to follow it. Judicial power is never exercised

for the purpose of giving effect to the will of the

judge; always for the purpose of giving effect to the

will of the legislature; or, in other words, to the

will of the law.’? Osborn v. United States Bank. 9

Wheat. (22 U. 8.) 738, 866 (1824). (Emphasis added.)

The word discretion is limited by the duty to follow the

law and such a blanket pattern of discrimination as is

here alleged cannot be said to conform to such a duty.

REL ROO AION

nie APE

47. Since Griffin v. Breckenridge, supra, overruled Collins v.

Hardyman, 341 U. S. 651 (1951).

5

i

re

SSN ee RRR ERAT TEL TT a

A42

A discretionary action is subject to review and reversal

for abuse of discretion. ‘‘And by abuse of discretion is

meant action which is arbitrary, fanciful, or clearly un-

reasonable.’’? United States v. McWilliams, 163 F. 2d 695,

697 (D.C. Cir. 1947). For us to find that the acts and

failures to act alleged in the complaint do not constitute

an abuse of discretion, we would have to say that they

do not constitute ‘‘arbitrary action,” Burns v. United

States, 287 U. S. 216, 223 (1932), and this we can only do

by ignoring the mandates of equal protection of the laws.

The principal reasons presented for various types of

immunity have been capably summarized :

‘‘(1) the danger of influencing public officials by

threat of a law suit; (2) the deterrent effect of poten-

tial liability on men who are considering entering

publig, life; (3) the drain on the valuable time of the

official caused by insubstantial suits; (4) the unfair-

ness of subjecting officials to liability for the acts of

their subordinates; (5) the theory that the official

owes a duty to the public and not to the individual ;

(6) the feeling that the ballot and the formal removal

proceeding are more appropriate ways to enforce the

honesty and efficiency of public officers.’’ Note, The

Proper Scope of the Civil Rights Acts, 66 Harv. L.

Rev. 1285, 1295 n. 54 (1953).

Numbers (1), (2) and (4) would seem to apply only to

civil actions for damages and not to injunctive relief which

we have approved herein. Reason number (3) is a serious

consideration—a prosecutor’s time is necessarily limited

_but since we approve not a case brought by a single

disappointed complainant, but rather one brought by an

entire class of citizens of Cairo, Illinois, the number of

such suits charging discrimination against classes of

citizens is not predictably substantial nor is their merit

predictably ins tantial. Moreover, as to both (3) and

(5) the duty o to the public is primary and that duty is

A43

an even-handed, nondiscriminatory enforcement of the

laws, not a vindication of an individual’s complaint; it is

that public duty which plaintiffs seek to enforce. Finally,

as to (6), defendants have not argued, either before this

court or in the district court, that there is a requirement

of exhaustion of state legal or political remedies, an argu-

ment which we would reject in the light of Carter v. Stan-

ton, 405 U. S. 669 (1972), no matter how potentially

adequate those remedies might appear to be.

teen: SOREN aaa ae ame *

Nor could we find such political remedies adequate.

Cairo, Illinois, has admittedly been the scene of sub-

stantial civil rights agitation for the last several years.

Not surprisingly there has been a polarization of the com-

munity, and, in such a case, it would be totally presump- :

tuous of this court to find that the ballot provides even a '

probability of remedying the alleged oppression of the

minority by the duly elected representatives of the

majority. It was, in fact, just such oppression which

caused the Congress to enact the provisions with which

we now deal.** In summary, considering all of the gener-

ally accepted reasons for granting immunity to state of-

ficials, we conclude that none is applicable here, especially

in light of the corrosive impact the alleged conduct has

had on the equal handed application of the criminal justice

system.

ele PO Sor

Nor do we find various alternative remedies sufficiently

useful for us to deny the relief sought by plaintiffs. As

to any direct remedy by criminal prosecution for official

misconduct by the defendants, suggested by, e.g., Note,

Nonfeasance: A Threat to the Prosecutors’ Discretion, 30

Ind. L. J. 74 (1954), we think the following correctly puts

the matter:

‘‘Such remedies are merely nominal. The criminal

sanctions can rarely be invoked to control the errant

48. See discussion of legislative history, supra, especially pp.

15-17.

.

€

s

At%

police officer, the errant prosecutor, and never the

oppressive judge. The civil damage suit is worthless,

especially if the victim of oppression is a social

misfit or an unsavory character.’’ Breitel, Controls in

Criminal Low Enforcement, 27 U. Chi. L. Rev. 427,

434 (1960).

Nor is there any possibility of private enforcement of

criminal laws*® since Illinois has not provided for such

actions by statute.”

Finally, we need only note the potentially egregious

results of denying relief in this case if the allegations are

true. The Constitution prescribes through the Fourteenth

Amendment that the states must apply their laws equally.

This view was adopted by the Supreme Court in Yick Wo

v. Hopkins, 118 U. 8. 356, 373-374 (1886) :

‘Though the law itself be fair on its face and im-

partial in appearance, yet, if it is applied and ad-

ministered by public authority with an evil eye and

an unequal hand, so as practically to make unjust

and illegal discriminations between persons in similar

circumstances, material to their rights, the denial of

equal justice is still within the prohibition of the

Constitution.”’

49. ‘‘A system of private prosecution can be justified in terms

of both society’s interest in increased law enforcement and_the

individual’s interest in vindication of personal grievances. Full

participation by the citizen as a private prosecutor is needed to

cope with the serious threat to society posed by the district attor-

ney’s improper action and inaction. This rationale alone is ade-

quate to support private prosecution.’’ Comment, Private Prosecu-

tion: A Remedy for District Attorneys’ Unwarranted Inaction, 65

Yae L. J. 209, 227 (1955).

50. Although private prosecutors may assist the State’s attor-

ney, the Illinois Supreme Court has stated ‘‘the State’s attorney,

as a public officer, must have the direction and assume the responsi-

bility of the prosecution. It would be manifestly improper to per-

mit counsel paid by private parties to supplant the constituted

officer of the law and to assume the management of the case... .”’

Hayner v. People, 213 Ill. 142, 147, 72 N. E. 792 (1904).

A45

Few courts have applied Fick Wo to substantial criminal

prosecutions, perhaps because of a failure of proof by

various criminal defendants of such invidious discrimina-

tion and perhaps from a desire by courts to avoid free-

ing criminals. Yet, ‘‘when the claim of discriminatory

enforcement is raised in an injunetion proceeding, it is

not as obvious that recognition of the claim will result

in freeing a possible criminal, since an injunction can be

limited to enjoin only discriminatery enforcement rather

than all enforcement.’’ Comment, The Right to Nondis-

criminatory Enforcement of State Penal Laws, 61 Colum.

L. Rev. 1103, 1109 n. 25 (1961). We feel that the in-

junctive remedy proposed by plaintiffs if their case be

proved on hearing must be found preferable to a holding :

that the criminal laws cannot be enforced against blacks q

who assault whites so long as whites are not being pun- 5

ished for assaults on blacks.

Moreover, considering the lack of alternative remedies,

if the federal courts should say to these plaintiffs, after 4

having stripped the Civil Rights Acts of their damage F

remedy by invoking the concept of judicial immunity,

that there is no injunctive relief available, then our sys-

tem of government of law and not of men will be subject

to question. As Judge Cummings said in Stamler vy. Willis,

415 F. 2d 1365, 1369-1370 (7th Cir. 1969), “«[{t]he judiciary

has always borne the basic responsibility for protecting

individuals against unconstitutional invasions of their

rights by all branches of Government.’’

LP oe ee Een eS

EGA MT RMELIE A aH

Our focus has been primarily on the judicial immunity

of the judge defendants and the quasi-judicial immunity

of the State’s attorney defendant. It obviously follows

from what we have said that Shepherd, the investigator,

would not be entitled to immunity in any event from

injunction and, in all probability, not from a civil rights

action for damages. While the district court spread Berb- ;

§

A46

ling’s supposed mantle around Shepherd, we note that the

investigator from the complaint might seem to border

more in the nature of a policeman-detective than one en-

titled to the protective quasi-judicial immunity from dam-

age actions. We do not need to decide this issue now as

the proof on a trial should establish his status with greater

exactitude than we are able to do on the record before us.

Obviously, since this case is before us on a motion to

dismiss, it would be improper for us to attempt to spell

out in detail any relief the district court might grant if the

plaintiffs can prove what they allege.*' Nevertheless, as

this appears to be a case of first impression as to the type

of relief approved, we feel obligated to give the district

court some guidelines as to what type of remedy might be

imposed. We do not mean to require the district court to

sit in constant, day-to-day supervision of either state

court judges or the State’s attorney. An initial decree

might set out the general tone of rights to be protected

and require only periodic reports of various types of

aggregate data on actions on bail and sentencing and dis-

positions of complaints. Nevertheless, we have complete

confidence in the district court’s ability to set up further

guides as required™ and if necessary to consider individual

decisions. Difficulty of formulating a remedy if a com-

plaint is proved following a trial cannot be grounds for

dismissing the complaint ab initio. We cannot so easily

belittle the powers of a court of equity nor the ability of

district judges who have grappled with difficult. remedies

before, e.g., school desegregation orders, railroad reor-

ganizations.

51. For examples of the way in which such proof might be

made see Comment, supra, 61 CoLUM. L. Rev. at 1122-1131.

52. E.g., Abrams, Internal Policy: Guiding the Exercise of

Prosecutorial Discretion, 19 U.C.L.A. L. Rev. 1 (1971).

53. Id. at 45-49 discussing Regina v. Commissioner of Police ex

rel. Blackburn [1968], 1 Q. B. 118.

A47

We also are not unmindful of the possibility of a sub-

stantial additional burden being placed on the federal

judiciary by our decision. However, if it can be alleged

and proved, and the sweep of our decision is to be no

broader, that the state officials consistently, designedly and

egregiously have, under color of law, deprived an entire

group of citizens of their civil rights, then the additional

burden will necessarily have to be assumed. The civil

rights of all persons, too often merely words in a constitu-

tionally inspired century old statute, deserve no lesser

implementation than here accorded them.

Further, in response to the final rhetoric of the dissent,

we reemphasize that we have no intent of suggesting that

the allegations of the complaint are true. Certainly we

have not intended any intimation that corruption exists

on the part of the accused officials. We have only said that

if the allegations are true, and the burden of proving

truth is on the plaintiffs, then a federal cause of action has

been stated.

For the reasons set out hereinbefore, we reverse and

remand for further proceedings not inconsistent herewith.

The case shall be reassigned to a different district judge.

Reversep and Remanpep.

wre

MASA MIE EOP ALS RGAE OE

A4s

Duin, District Judge, dissenting.

The majority holds, for the first time, that a federal

district court has the power to supervise and to regulate by

mandatory injunction the discretion which state court

judges and state’s attorneys may exercise within the limits

of the powers vested in them by law. I respectfully sug-

gest that no such power exists.

It is true, as a generality, that the immunity doctrine

which protects such judicial and quasi-judicial officials

against damage actions does not preclude the granting of

equitable relief against them. Jacobson v. Schaefer, 441

F.2d 127 (7 Cir. 1971). However, in the cases cited by the

majority’ in which this doctrine has been applied, the

equitable relief granted has invariably been in the form

of a prohibitory injunction, confining such officials to the

limits of their legal authority. There is a great difference

between ordering an official not to do a particular act, mea-

surable by objective standards, and in ordering him to

exercise his diseretion in a certain general way, measurable

only by subjective standards. »

Many pages of the majority opinion are devoted to an

argument, derived from the legislative history of the Civil

Rights Acts, to the effect that it was the congressional

purpose that there should be no exceptions to the ap-

parently all inclusive wording of those Acts. However

much I might agree if the case were the first to interpret

that legislation, the fact remains that those same argu-

ments have been eloquently expressed and the same his-

—_—— ee —

—— nl

1. Er parte Young, 209 U.S. 128 (1908): United States v.

WeLeod, 385 F. 2d 734 (5 Cir. 1967) ; United States v. Clark, 249

F. Supp. 720 (S. D. Ala. 1965) ; Phillips v. Cole, 298 F. Supp. 1049

(N. D. Miss. 1968) ; Bramlett v. Peterson, 307 F. Supp. 1311 OM. D.

Fla. 1969). Cf. Dombroski v. Pfister, 380 U.S. 479 (1965) ; Yiek

- Wev. Hopkins, 118 U. 8. 356 (1886) ; Ex parte Virginia, 100 U. S.

339 (1880).

A49

tory reviewed by Mr. Justice Douglas’ in his dissenting

opinions in cases similar to ours, and have been found

wanting. Pierson v. Ray, 386 U.S. 547 (1967) ; Greenwood

v. Peacock, 384 U.S. 808 (1966).

Greenwood v. Peacock, supra, is particularly instrue-

tive here. That case involved the question of whether

another of the Civil Rights Acts, 28 U.S.C. § 1443(1),?

permits removal of a criminal case from state to federal

court when a state statute, although valid and nondiscrimi-

natory on its face, is applied in a discriminatory fashion,

for racial reasons, in violation of the equal rights of the

accused. The Fifth Cireuit held in the affirmative,’ in a

disregard of a long line of cases beginning with Strauder

v. West Virginia, 100 U.S. 303 (1880), and ending with

Kentucky v. Powers, 201 U.S. 1 (1906). The Fifth Cireuit

was reversed, the Court holding with reference to such

previous cases, after considering the question anew, as

follows:

‘“‘Those cases all stand for at least one basic proposi-

tion: It is not enough to support removal under

§ 1443(1) to allege or show that the defendant’s fed-

eral equal civil rights have been illegally and cor-

ruptly denied by state administrative officials in ad-

vance of trial, that the charges against the defendant

are-false, or that the defendant is unable to obtain

a fair trial in a particular state court. The motives

of the officers bringing the charges may be corrupt,

but that does not show that the state trial court will

find the defendant guilty if he is innocent, or that

in any other manner the defendant will be ‘denied or

2. § 1443. ‘Any of the following civil actions or criminal prose-

cutions, commenced in_a State court may be removed by the defend-

ant to the district court of the United States for the district and

division embracing the place wherein it is pending: (1) Against

any person who is denied or cannot enforce in the courts of such

State a right under any law providing for the equal civil rights of

citizens of the United States, or of all persons within the jurisdic-

tion thereof; .. .”’

3. Peacock v. City of Greenwood, 347 F. 2a 679 (1965).

RRA OR espera ceancernngnanrsen em eeT net She RLENCRSN SAAS RARER TTR ETE eT aE

A50

cannot enforce in the courts’ of the State any right

under a federal law providing for equal civil rights.

The civil rights removal statute does not require and

does not permit the judges of the federal courts to

put their brethren of the state judiciary on trial. Un-

der § 1443(1), the vindication of defendant’s federal

rights is left to the state courts except in the rare

situations where it can be clearly predicted by reason

of the operation of a pervasive and explicit state or

federal law that those rights will inevitably be denied

by the very act of bringing the defendant to trial in the

state court. Georgia v. Rachel, 384 US 780; Strauder

~. West Virginia, 100 US 303.’’ 384 U. S. at 827-28.

The situation presented in Greenwood and the situation

alleged in the complaint here are, for all practical pur-

poses, identical. In that case it was alleged, as a basis for

removal of criminal actions brought against black defend-

ants in a state court, that the local officialdom was apply-

ing statutes, valid on their face, in a racially discrimina-

tory manner to deny defendants of their civil rights. In

this case, the same kind of discriminatory conduct is alleged:

that the officials apply the criminal laws harshly to blacks,

and lightly, if at all, to whites. In Greenwood, recognition

_of the right to remove under the circumstances outlined

would have required the federal distriet court, in each in-

stance where removal had been taken and a petition for

remand filed, to conduct an evidentiary hearing to deter-

mine whether a pattern of discrimination existed. In ad-

dition to placing an intolerable burden upon the federal

courts, such an interpretation of § 1443(1), it was said,

would have operated to work a wholesale dislocation of the

historic relationship between the state and federal courts

in the administration of criminal law. Such was not the

intent of the Congress, the majority concluded.

If, as the Court said in Greemvood, it was not the intent

of Congress that § 1443(1) be applied as contended by

A51

the State court defendants, a fortiori it could not have

been intended that ‘‘a wholesale dislocation of the historic

relationship between the state and federal courts in the

administration of criminal law’’ be accomplished by en-

abling federal trial courts to ‘‘put their brethren of the

state judiciary on trial,’’ as the majority would do in cases

such as the one before us.

In the Greenwood situation, had the Court ruled the

other way, the duties of the federal trial court would be

at an end once it had concluded the required hearing. The

Court would cither find no pattern of discrimination, and

remand the case, or it would find such a pattern and either

dismiss or try the case, as the circumstances warranted.

In the case at hand, however, the federal court’s task

would be never ending, assuming that plaintiffs could

make their case. The court would first need to conduct an

evidentiary hearing to determine whether a pattern of

discrimination could indeed be discerned; if so, it would

presumably order the state’s attorney to cease discrimi-

nating. Within the context of the complaint, this would

mean not only that he should not ask for disproportion-

ately high penalties against blacks, but that he should

do a more vigorous job of investigating and filing charges —

made by blacks against whites, and try harder to obtain

convictions in such cases as might be filed. Enforcement

would necessarily be by contempt proceedings, which would

require continuing hearings ad infinitum to examine the

subjective motivation of the state’s attorney in perform-

ing, or in allegedly failing to perform, his discretionary

duties. For example, if the charge was made, and found

to be true, that he failed to do his best to convict a

white, who was acquitted, the defendant would remain

free for double jeopardy reasons, but the prosecutor would

go to jail. Similarly, a judge operating under a nebulous -

order not to discriminate in fixing bonds and in sentencing

:

Set pag

Tee RM TEN *

A52_

would thereafter be confronted with the possibility of a

contempt citation and the necessity to defend his motiva-

tion in each instance when he performed either function

to the dissatisfaction of a minority race defendant.

Nor is this the only difficulty with the majority’s position.

The principal complaint against the state’s attorney is

that he will not prosecute whites: therefore, he should be

compelled to do so. But it was held in the Confiscation

Cases, 74 U.S. (7 Wall) 454 (1868), that whether or not

prosecution is to be instituted, or whether a nolle prosequt

it to be filed in a pending action, is wholly within the

discretion of the official in the executive branch of the

government cloaked with such power. The functions of

prosecutor and judge are incompatible, and the right in

the executive branch to prosecute or not to prosecute is

not subject to control by judicial discretion. Ex parte

United States, 287 U.S. 241 (1932); United States v.

Thompson, 251 U.S. 407 (1920); Peek v. Mitchell, 419

F.2d 575 (6 Cir. 1970) ; United States v. Cox, 342 F.2d 167

(5 Cir. 1965), cert. den. 381 U.S. 985; Powell v. Katzen-

bach, 359 F.2d 234 (D.C. Cir. 1965), cert. den. 384 U.S.

906 (1966); Goldberg v. Hoffman, 225 F.2d 463 (7 Cir.

1955) ; United States v. Brokaw, 60 F.Supp. 100 (S.D. Til.

1945). Cf. Clark v. State of Washington, 366 F.2d 678 (9

Cir. 1966).

Upon the analogy to Greenwood, the additional reasons

just stated, as well as upon application of the principles

of ‘‘Our Federalism,”’ as expounded in Younger v. Harris,

401 U.S. 37 (1971), and its companion cases,* I would

affirm dismissal of the injunctive claims, claims one and six

of the amended complaint, for failure to state a claim

upon which relief could be granted. Rule 12(b)(6), Federal

Rules of Civil Procedure.

4. Samuels v. Mackell, 401 U.S. 66; Boyle v. Landry, 401 vS.

77; Perez v. Ledesma, 401 U.S. 82; Dyson v. Stein, 401 U.S. 200;

Byrne v. Karalezis, 401 US. 216.

“os

a TS

A53

I likewise disagree with the majority’s action in revers-

ing dismissal of the damage claims asserted against the

state’s attorney and his investigator in claims two, three,

and four. The majority rather grudgingly concedes that

all federal courts, including this one, hold that the im-

munity doctrine protects state’s attorneys from damage

actions arising out of the discharge of official duties, but

suggests, without deciding, that perhaps investigation of

charges of crime may not be a prosecutorial function and,

again perhaps, some liability might lie in this area if only

plaintiffs would redraft their complaint to plead some-

thing actionable.

First of all, I think that the amended complaint must

stand or fall as drafted, particularly since the majority

has elected to treat the lower court’s dismissal as one for

failure to state facts. The pleading, although lengthy,

does not contain the rambling gibberish typical of a pro

se complaint—a situation which frequently causes courts

of review to search carefully for an actionable theory, in-

expertly expressed—but to the contrary is expertly drafted

by counsel who are obviously quite competent. The ques-

tion, therefore, is as to whether the amended complaint

States any facts at all upon which relief could be granted,

and having to do with investigation. I find none.

The charge is not that the prosecutor and his investiga-

tor have overinvestigated—have applied undue pressure

to obtain convictions of blacks, or have otherwise over-

reached, as in the two cases cited by the majority.® Rather,

the charge is that they have not done enough in that

they have failed to investigate charges by blacks against

whites, and have failed to permit the filing of certain

complaints. In other words, the charge is of nonfeasance

or misfeasance in the discharge of the prosecutor’s official

5. Robichaud vy. Ronan, 351 F.2d 533 (9 Cir. 1965); Lewis v.

Brautigam, 227 F.2d 124 (5 Cir. 1955).

LEARNT PLETE MOE A LORRI

+E

duty to ‘‘commence and prosecute all actions . . . in which

the people of the State or county may be concerned.’”*

Thus, as a matter of logic, we are down to this: if inves-

tigation is a function of the state’s attorney’s office, then

the complaint must fail because of the immunity doctrine.

If it is not, then the complaint is equally bad, since the

state’s attorney can hardly be held liable for failure to

perform a task he is not required to do. Finally, it has

been expressly held that failure to investigate alleged

criminal conduct is clearly privileged as in the exercise

of official, quasi-judicial functions. Scolnick v. Wwunston,

219 F.Supp. 836 (S.D. N.Y. 1963), aff'd 329 F.2d 716 (2

Cir. 1964). The amended complaint alleges no more against

the investigator than against his superior, and must fail

for the same reasons.

The rationale for the rule of immunity from damage

actions was well expressed by J udge Learned Hand in

Gregoire v. Biddle, 177 F.2d 579 (2 Cir. 1949), as follows:

‘Tt does indeed go without saying that an official, who

is in fact guilty of using his powers to vent his spleen

upon others, or for any other personal motive not con-

nected with the public good, should not escape liability

for the injuries he may so cause; and, if it were pos-

sible in practice to confine such complaints to the

guilty, it would be monstrous to deny recovery. The

justification for doing so is that it is impossible to

know whether the claim is well founded until the case

has been tried, and that to submit all officials, the in-

nocent as well as the guilty, to the burden of a trial

and to the inevitable danger of its outcome, would

dampen the ardor of all but the most resolute,

or the most irresponsible, in the unflinching discharge

of their duties... . As is so often the case, the answer

must be found in a balance between the evils inevi-

table in either alternative. In this instance it has been

thought in the end better to leave unredressed the

6. Il. Rev. Stat. 1971, Ch. 14, § 5, as amended.

A55

wrongs done by dishonest officers. than to subject

those who try to do their duty to the constant dread

of retaliation... .

‘The decisions have, indeed, always imposed as a

limitation upon the immunity that the official’s act

must have been within the scope of his powers; and

it can be argued that official powers, since they exist

only for the public good, never cover occasions where

the public good is not their aim, and hence that to

exercise a power dishonestly is necessarily to over-

step its bounds. A moment’s reflection shows, however,

that that cannot be the meaning of the limitation with-

out defeating the whole doctrine. What is meant by

saying that the officer must be acting within his power

cannot be more than that the occasion must be such as

would have justified the act, if he had been using his

power for any of the purposes on whose account it was

vested in him. .. .’’ 177 F.2d at 581.

I submit that the reason for the rule against damage

actions applies with equal force to mandatory injunctions

which seek to regulate the exercise of discretion of

judicial’ and quasi-judicial officers. It would be cold

comfort for such an official to be told by this Court: ‘‘Be

of good cheer! We will protect your pocketbook, even as we

send you to jail.”’

I would affirm the judgment of the lower court in its

entirety.

7. If corruption indeed exists in the Illinois judiciary, then that

State Should clean its own house. Ample procedures exist for

accomplishing this end, which can be set in motion by concerned

citizens such as plaintiffs. Constitution of Illinois (1970), Art. 6,

15.

tl IG Det ROL APN ge

A56 —

In THE District Court OF THE Unrtep StTaTEs

For the Eastern District of Illinois

ria aniinriccaniteanmaeuncaic AL

Brown, HERMAN WHITFIELD,

Waiace WuitFiELp, LeRoy Lam-

pert, by his Father and Next

Friend, Hopart LaMBERT, Morris

Garrett, by his Father and Next

Friend, Levi Garrett, individ-

ually and as representatives of a ;

class, pe Plaintiffs, Civil No. 70-103

Peyton BERBLING, individually and

as State’s Attorney for Alexan-

der County, Illinois, Kart SHEP-

HERD, individually and as investi-

gator for Peyton Berbling, Cav

MeiseNnHemmer, as Police Com-

missioner of the City of Cairo,

Illinois, Mic HAEL O’SHEA, as

Magistrate of the Circuit Court

for Alexander County, Tilinois,

and DorotHy SPoMER, as Asso-

ciate Circuit Judge for Alexan-

der County, Illinois,

Defendants. J

Jurrcens, Chief Judge.

~ MEMORANDUM AND ORDER

Plaintiffs bring this civil rights action against, among

others, Peyton Berbling, individually and as State’s At-

torney for Alexander County, Illinois, Earl Shepherd, in-

\

A57

dividually and as investigator for Peyton Berbling, Michael

O’Shea, as Magistrate of the Circuit Court for Alexander

County, Illinois, and Dorothy Spomer, as Associate Circuit

Judge for Alexander County, Illinois.

By asking this Court to enjoin the acts of the elective

county officials, plaintiffs seek to have this Court sit as a

court of review over the acts and actions of the duly

elected officials of Alexander County, namely, the associate

circuit judge, the magistrate, the state’s attorney and the

assistant to the state’s attorney. What plaintiffs seek in

their request for injunctive relief is merely to have this

Court submit its judgment for the judgment of the above-

named elected officials of Alexander County. Under the

circumstances here presented, the Court does not have

jurisdiction to entertain such a cause.

Plaintiffs cite cases in which federal courts have en-

joined acts of elective state officials under certain circum-

stances, not here present. However, in none of the cases

cited have the federal courts been granted power to sub-

stitute their judgment for that of the elected state officials.

The matters complained of in the amended complaint as

against the above-named elective officials are at most dis-

cretionary acts on their part.

Accordingly, that portion of the complaint seeking in-

junctive relief against the associate circuit judge, magis-

trate, state’s attorney and assistant to the state’s attorney

will be dismissed for failure of jurisdiction in this Court.

Defendants Peyton Berbling and Earl Shepherd, so

called in the complaint (properly Earl A. Shepherd, Jr.),

move to dismiss the complaint, alleging that the complaint

fails to state a cause of action against them under the

claim of judicial immunity.

Defendants Michael O’Shea and Dorothy Spomer also |

move to dismiss on the basis of judicial immunity.

Sh at a RA wa

A58.

- ‘The motion of the magistrate and judge will be first con-

sidered.

Michael O’Shea is a Magistrate of and Dorothy Spomer is

an Associate Circuit Judge of Alexander County, Illinois.

The factual allegations upon which this complaint is based

arise out of the alleged acts of these two named judicial

officials while acting in the course of their judicial functions.

Judicial officers are immune from liability for damages

for acts committed within their judicial jurisdiction. As

was stated in Pierson v. Ray, 386 U.S. 547, 553, 554:

‘<® * © Few doctrines were more solidly established

at common law than the immunity of judges from

liability for damages for acts committed within their

judicial jurisdiction, as this Court recognized when it

adopted the doctrine, in Bradley v. Fisher, 18 Wall.

335 (1872). This immunity applies even when the judge

is accused of acting maliciously and corruptly, and it

‘ig not for the protection or benefit of a malicious or.

corrupt judge, but for the benefit of the public, whose '

interest it is that the judges should be at liberty to

exercise their functions with independence and without

fear of consequences.’ ”’

The immunity of judges from liability in the regular per-

formance of their judicial duties under 42 U.S.C. § 1893

(sic) is well established and. finds its root in the common

law. Jones v. Jones, 410 F.2d 365 (7th Cir., 1969).

Judges, magistrates and clerks of the court are immune

from liability for acts done in performance of their duties.

Brown v. Dunne, 409 F.2d 341 (7th Cir., 1969).

The motion of the Magistrate, Michael O’Shea, and of

the Associate Judge, Dorothy Spomer, is well taken and

the complaint and cause of action should be and the same

is hereby dismissed as to these two named defendants.

Peyton Berbling is the State’s Attorney of Alexander

County, Illinois, and Earl A. Shepherd, Jr., is investigator

for the State’s Attorney. :

ee eee ”

AE SG NGA I~ BAT TA tn AROS

| :

Affidavits attached to these two defendants’ motion to

dismiss establish that Earl A. Shepherd, Jr. (referred to in

the complaint as Earl Shepherd) is not a lawyer and is

not an assistant state’s attorney, but is a salaried employee

acting under the office of the State’s Attorney. His duties

consist solely of making investigations of cases for the

State’s Attorney. He talks to witnesses and takes state-

ments and presents them to the State’s Attorney and

otherwise offers assistance to the State’s Attorney in carry-

ing out investigative functions of the office. As such em-

ployee, he is not entitled to and makes no decisiongggs to

any type of trial or non-trial and serves only as an investi-

gator and assistant to the State’s Attorney.

As was stated in Agnew v. Moody, 330 F.2d 868, 869

(9th Cir., 1964) :

‘‘We have repeatedly held that judges and ‘quasi-

judicial’ officers, including prosecuting attorneys, are

immune from suit under the Civil Rights Act for con-

duct in the performance of their official duties, * * —

It is well settled that the state’s attorney is entitled to

immunity from claims for damages arising out of his judi-

cial and quasi-judicial acts. Kalee v. Adamowski, 406 F.2d

536 (7th Cir., 1969).

In Byrne v. Kysar, 347 F.2d 734 (7th Cir., 1965), it was

held that a medical commission appointed by the county

board to examine a person as to his mental condition shared

the court’s judicial immunity in performance of their quasi-

judicial function and were not subject to suit under the

Civil Rights Act provision making liable persons under the

Civil Rights Act. In Byrne it was also stated that an

assistant state’s attorney, acting in his official capacity

as prosecutor for the state, is also afforded the same pro-

tection given a judge.

While defendant Shepherd was not acting in the capacity

of an assistant state’s attorney, he was acting as an as-

s

<

3

Fe

S

%

:

«

5

f

ts

§

py

&

BS

+3

hd

%

wf

:

EERIE PIE ERE AE

Wiggins

Per HR

RENE ONE BEST IE IL SIS a

A60

sistant to and acting for the state’s attorney and pursuant

to the authority and under the direction of the state’s

attorney. As such he would be entitled to the same judicial

immunity which extends to the state’s attorney insofar

as his acts were performed in the furtherance of the of-

ficial duties assigned to him for performance by the state’s

attorney. The allegations of the compliant with regard to

the defendant Shepherd show that the acts complained of

were taken in the performance of the duties assigned to

him by the state’s attorney and as such enjoy the same

immunity afforded to the other judicial or quasi-judicial

officials.

The motion to dismiss of defendants Peyton Berbling

and Earl A. Shepherd, Jr., (Earl Shepherd) be and the

same is hereby allowed and the complaint and cause of

action is dismissed as to these two defendants.

/s/ Wuu1am G. JUERGENS

Chief Judge

Dated: March 23, 1971

A61

$1981. Equal rights under the law

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

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

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

ceedings for the security of persons and property as is é

enjoyed by white citizens, and shall be subject to like :

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

of every kind, and to no other.

R.S. § 1977.

§ 1982. Property rights of citizens

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

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

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

real and personal property.

R.S. § 1978.

§ 1983. Civil action for deprivation of rights

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

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

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

States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities

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

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

proper proceeding for redress.

RS. § 1979.

§ 1985. Conspiracy to interfere with civil rights—Prevent-

ing officer from performing duties

(1) If two or more persons in any State or Territory

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

person from accepting or holding any office, trust, or place

nar TRR NONE

GR ea RE Zt

A62

of confidence under the United States, or from discharging

any duties thereof; or to induce by like means any officer

of the United States to leave any State, district, or place,

where his duties as an officer are required to be performed,

or to injure him in his person or property on account of his

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

in the lawful discharge thereof, or to injure his property

so as to molest, interrupt, hinder, or impede him in the

discharge of his official duties ; :

Obstructing justice; intimidating party, witness, or juror

(2) If two or more persons in any State or Territory

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

party or witness in any court of the United States from

attending such court, or from testifying to any matter

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

such party or witness in his person or property on account

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

verdict, presentment, or indictment of any grand or petit

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

person or property on account of any verdict, presentment,

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

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

conspire for the purpose of impeding, hindering, obstruet-

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

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

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

property for lawfully enforcing, or attempting to enforce,

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

protection of the laws; :

Depriving persons of rights or privileges

(3) If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the

premises of another, for the purpose of depriving, either

a

A63

directly or indirectly, any person or class of persons of

the equal protection of the laws, or of equal privileges

and immunities under the laws ; or for the purpose of pre-

venting or hindering the constituted authorities of any

State or Territory from giving or securing to all persons |

within such State or Territory the equal protection of the

laws; or if two or more persons conspire to prevent by

force, intimidation, or threat, any citizen who is lawfully

entitled to vote, from giving his support or advocacy in a

legal manner, toward or in favor of the election of any

lawfully qualified person as an elector for President or

Vice President, or as a Member of Congress of the United

States; or to injure any citizen in person or property on

account of such support or advocacy; in any case of con-

spiracy set forth in this section, if one or more persons

engaged therein do, or cause to be done, any act in fur-

therance of the object of such conspiracy, whereby another

is injured in his person or property, or deprived of having

and exercising any right or privilege of a citizen of the

United States, the party so injured or deprived may have

an action for the recovery of damages, occasioned by such

injury or deprivation, against any one or more of the

conspirators.

R.S. § 1980,