# Appendix — O'Shea v. Littleton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1974
- **Citation:** 414 U.S. 488

## Text

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‘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

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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

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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

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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

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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.

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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).

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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.

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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.

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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... .”’

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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. ‘

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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-

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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,

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0224%3A01. Public record. Not legal advice.